PROSECUTOR v SAM HINGA NORMAN & ORS - SEPARATE CONCURRING OPINION OF HON. JUSTICE BENJAMIN MUTANGA ITOE, PRESIDING JUDGE, ON THE CHAMBER MAJORITY DECISION ON PROSECUTION MOTION FOR A RULING ON THE ADMISSIBILITY OF EVIDENCE (SCSL-04-14-T)  SCSL 85 (2
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
PHONE: +1 212 963 9915 Extension: 178 7000 or +39 0831 257000 or +232 22 295995
FAX: Extension: 178 7001 or +39 0831 257001 Extension: 174 6996 or +232 22 295996
TRIAL CHAMBER I
Hon. Justice Benjamin Mutanga Itoe, Presiding Judge
Hon. Justice Bankole Thompson
Hon. Justice Pierre Boutet
24th May, 2005
SAM HINGA NORMAN
SEPARATE CONCURRING OPINION OF HON. JUSTICE BENJAMIN MUTANGA ITOE, PRESIDING JUDGE, ON THE CHAMBER MAJORITY DECISION ON PROSECUTION MOTION FOR A RULING ON THE ADMISSIBILITY OF EVIDENCE
Office of the Prosecutor:
Court Appointed Counsel for Sam Hinga Norman:
Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr.
Court Appointed Counsel for Moinina Fofana:
Court Appointed Counsel for Allieu Kondewa:
IN TRIAL CHAMBER I (“The Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Benjamin Mutanga Itoe, Presiding Judge, Hon. Justice Bankole Thompson and Hon. Justice Pierre Boutet;
SEIZED of Urgent Prosecution Motion for a Ruling on the Admissibility of Evidence filed by the Prosecution on the 15th of February, 2005;
MINDFUL of the Response of First Accused to Prosecution’s “Urgent Prosecution Motion for a Ruling on the Admissibility of Evidence” and Objection to Other Crimes Evidence, filed by Court Appointed Counsel for the First Accused on the 18th of February, 2005;
MINDFUL of the Prosecution Reply to ‘Response of First Accused to Prosecution’s “Urgent Prosecution Motion for a Ruling on the Admissibility of Evidence” and Objection to Other Crimes Evidence’, filed on the 23rd of February 2005;
MINDFUL of the Response of the Second Accused to Urgent Prosecution Motion for Ruling on the Admissibility of Evidence, filed on the 25th of February, 2005;
MINDFUL of the Response of Third Accused to Prosecution’s Urgent Motion for a Ruling on the Admissibility of Evidence, filed on the 28th of February, 2005;
CONSIDERING the Prosecution Reply to “Response of the Second Accused to Urgent Prosecution Motion for Ruling on the Admissibility of Evidence”, filed on the 2nd of March, 2005;
CONSIDERING the Prosecution Reply to “Response of Third Accused to Prosecution’s Urgent Motion for a Ruling on the Admissibility of Evidence”, filed on the 4th of March, 2005;
MINDFUL of the Prosecution Motion filed on the 9th of February, 2005 for Leave to Amend the Indictment Against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa;
MINDFUL of the Chamber Decision dated the 20th of May, 2004, on the Prosecution Motion for Leave to amend the Indictment against Hinga Norman, Moinina Fofana and Allieu Kondewa;
CONSIDERING the submissions of the Parties;
PURSUANT TO Rule 54 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (“Rules”);
MINDFUL of Our Oral Majority Decision on this matter delivered on the 23rd of May, 2005;
I, HON. JUSTICE BENJAMIN MUTANGA ITOE, PRESIDING JUDGE, NOW ISSUE THE FOLLOWING SEPARATE BUT CONCURRING OPINION ON THE CHAMBER MAJORITY DECISION:
INITIAL INDIVIDUAL INDICTMENTS
- The 3 Accused Persons, Chief Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, 1st, 2nd and 3rd Accused respectively, Respondents in this Motion, were each indicted on Individual Indictments, each containing 8 counts alleging crimes against humanity and several other offences.
- The 1st Accused at his Initial Appearance on the 17th of March, 2003, and the 2nd and 3rd Accused at their individual Initial Appearances on the 30th of June, 2003, pleaded ‘Not Guilty’ to all the Counts in their respective Indictments.
- For purposes of a determination of the instant Motion, it is necessary to state that in none of these Initial Individual Indictments did the Prosecution allege the commission by any of the Accused Persons, of any sexual offence in any of the 8 counts.
- Having realised that they needed to include specific gender offences in the Indictment, the Prosecution, by a Motion filed on the 9th of February, 2004, when we were preparing for the opening of the trial in this case, filed a Motion seeking an amendment to the New Consolidated Indictment in order to add 4 New counts alleging sexual offences against the 3 Accused Persons.
- I would like to recall at this stage that the Chamber, after the initial appearances of the Accused Persons, and on the application of the Prosecution, granted leave for a single Consolidated Indictment to be filed against these 3 Accused Persons.
- The Prosecution, without the leave or knowledge of the Court, had taken advantage of the leave that was granted to file the New Consolidated Indictment, to introduce to this Indictment, changes which the Majority Decision of the Chamber, the Separate Concurring, and the Dissenting Opinion later discovered and unanimously characterized as being material and substantial, in fact, changes which the Appeals Chamber in its Decision dated the 16th of May, 2005, described in the same vein, as being new allegations that amount to serious charges of criminality, in places and at times that are not indicated in the original paragraph 18.
- However, the Prosecution, even at that time failed to introduce an application to the include the 4 New Counts on gender offences in the process of making the application to file the Consolidated Indictment.
To sustain the granting of this Application to Amend, the Prosecution canvassed the following arguments:
- That evidence on gender offences had “just recently” come to its knowledge and possession.
- In another reason which is quite unrelated to the first, the Prosecution justified its lateness in seeking this amendment by alleging that it was waiting for the Joinder Motion to be disposed of before bringing the application to amend with a view to including the gender offences.
- That granting the Application will not violate the rights of the Accused.
FACTORS WE CONSIDERED IN THE DETERMINATION OF THE MOTION FOR LEAVE TO AMEND
In the determination of that Motion to Amend, the Chamber took the following into consideration:
- That in administering justice in this Court or participating in the process as the Prosecution and the Defence are, it must always be borne in mind that it has a time limited mandate;
- That this investigation has lasted for 2 years before the Motion to amend was filed on the 9th of February, 2004;
- That the Prosecution admitted being in possession of evidence on gender related offences against the Accused persons since June, 2003, but had failed to include any of them in the New Consolidated Indictment on which the trial is now proceeding.
- That the filing of a New Consolidated Indictment was one ultimate available opportunity for the Prosecution to introduce gender offences just as it had, without the leave of the Court, introduced and made substantial amendments and additions to the Consolidated Indictment.
- That if the amendment were granted, this trial would have been delayed for quite some time because the Defence would have been entitled to enough time to carry out its investigations into the newly alleged offences in the amended Consolidated Indictment, a process which would not only be contrary to the principles underlying the limited time frame of the Special Court, but also contrary to the statutory rights of the Accused to a fair and expeditious trial.
- The Defence in this case submitted that diligent Prosecutors would have ensured that investigators had fully interviewed potential witnesses with a view to ascertaining the full extent of the Accused’s culpability and to be able to fully prosecute the Accused, and that granting an amendment at this stage would amount to an abuse of process.
- In dismissing the Motion to Amend for lack of the required merits, We had this to say in Our Majority Decision dated the 16th of May, 2004:
“In this case, it has taken the prosecution over 2 years to detect gender offences against the Accused persons and in fact, one year after their initial appearances when the Accused would have, if the prosecution were reasonably diligent, been informed promptly and in detail, of the nature and cause of ‘the charge against them’. We observe therefore that the Prosecution was in breach of the ingredient of timeliness as statutorily required and so would an order emanating from us granting this motion to amend their Indictment.”
- Following our Majority Decision, the Prosecution by a Motion, sought leave to appeal against it. The Chamber, by a Majority Decision, turned it down because no exceptional circumstance or evidence of any irreparable prejudice to the Prosecution’s case was demonstrated.
- Curiously enough, the Prosecution appealed directly to the Appeals Chamber against our Decision denying it leave to appeal under the provisions of Rule 73(B) of the Rules. The Appeals Chamber dismissed the appeal for want of jurisdiction, the leave to appeal having, in accordance with the provisions of Rule 73(B) of the Rules, been denied by the Trial Chamber.
PROSECUTION MOTION FOR A RULING ON THE ADMISSIBILITY OF EVIDENCE OF GENDER OFFENCES
- On the 15th of February, 2005, the Prosecution, about 9 months after we had dismissed the Application to Amend, filed before this Chamber, this Motion which is the subject matter of the present deliberation, for it to be allowed to adduce gender evidence even though the Motion to include 4 New gender offences in the Indictment had been denied by this same Chamber.
SUBMISSIONS BY THE PROSECUTION
- The Prosecution in this Motion, seeks a ruling, indeed, a clarification as to the effects of the Majority Chamber Decision on the Prosecution Request for Leave to Amend to Indictment.
- In particular, the Prosecution seeks clarification on the extent to which the Decision limits the addition of particular relevant and admissible evidence under existing counts of the Consolidated Indictment.
- The need for this ruling, according to the Prosecution’s observation, “arise as the Trial Chamber has suggested the subject evidence may not be admissible as a consequence of the Decision and a ruling would avoid unnecessary arguments prior to the testimony of witnesses”.
- The Prosecution explains that it “proposes to lead oral testimony from a number of witnesses whose evidence, or a portion of their evidence, although it would have come within the ambit of the specific proposed amendments is nevertheless admissible concomitantly, under the existing counts” which I note, include Counts 3 and 4 of the Indictment.
- This evidence which I have noted was included in a confidential annex to this Motion, contains a precis of some of the testimony of the female victims of the alleged gender offences. They were supposed to appear to testify on criminal acts of rape, forced marriages, lootings and killings. It is important to note that Our oral Majority Decision dismissing the Motion seeking to adduce evidence of gender offences to prove Count 3 and 4, was limited only to the issue of adducing gender evidence.
- The Prosecution further explains that the particular evidence, although often described as ‘gender crimes’, can be ascribed to either count 3 in addition to or in the alternative to, count 4, which charges the Accused with Inhumane Acts, A Crime Against Humanity or in the alternative ‘Violence to Life, Health and Physical or Mental well being of persons, in particular, cruel treatment, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol 11, punishable under Article 3. a of the Statute.
RESPONSE BY THE DEFENCE
- The 3 Accused Persons have made individual replies to the submissions of the Prosecution. In their responses, they object to the admission of evidence on gender crimes claiming that it is outside the scope of the Indictment because the evidence on the alleged sexual offences is irrelevant to the offences charged.
REQUIREMENT OF SPECIFICITY IN PLEADING THE ALLEGED GENDER OFFENCES IN THE INDICTMENT
- To sustain their argument that such evidence is outside the scope of the Indictment, the Defence has argued that the alleged Sexual Offences are not pleaded with specificity in the said Indictment as required by the provisions of Rule 47(C) of the Rules which stipulate as follows:
“The Indictment shall contain, and be sufficient if it contains ... a statement of each specific offence of which the named suspect is charged and a short description of the particulars of the offence.”
RIGHT OF THE ACCUSED TO BE INFORMED OF THE OFFENCES ALLEGED
- Counsel for the Accused also argue that if such evidence is allowed to be adduced at this stage, it would violate the statutory right guaranteed to them under the provisions of Article 17(4)(a) of the Statute “to be informed promptly and in detail in a language which he or she understands, of the nature and cause of the charge against him or her”. They further argue that if the Chamber admits the proposed evidence, the proceedings will be unduly delayed to the detriment of the statutory rights of the Accused to be tried without undue delay.
- The Prosecution concedes to the submissions by the Defence that the allegations were not pleaded with specificity in the Indictment but argues ‘that this does not take the evidence outside the Indictment’.
- I am of the opinion that the Indictment is the foundation on which every prosecution stands, in fact, the agenda on which criminal proceedings are based. It is the instrument by which the Prosecution informs the Accused promptly and in detail, in a language which he or she understands, of the nature and cause of the charge against him or her, and in so doing, limits the number and the nature of the offences on which it has decided to base its prosecution against the Accused.
- In a bid to circumvent its obligations to promptly inform the Accused of the offences he is alleged to have committed, the Prosecution argues that evidence of gender offences was disclosed to the Defence of the 2nd Accused in the form of Witness Statements and a Trial Brief filed over a year ago and that he has not suffered any prejudice in his ability to prepare his defence.
I would, on this issue, like to state that the only way the Prosecution can be seen to have fully complied with its obligation under Article 17(4)(a) of the Statute to promptly inform the Accused Person of the offences for which he is charged is through an Indictment that has been preferred against him. It is my considered opinion that this conclusion holds good for the following reasons which to me are convincing, in the light of the accepted principles of law and Practice in the domain of Criminal Law and Procedure:
- The evidence assembled during investigations is so massive that it requires some pruning by the Prosecutor for him to make up his mind as to which of the several offences revealed in the witness statements and the exhibits he will prefer against the Accused.
- Even though Trial Briefs contain a summary of elements of the crimes alleged, they are not, and cannot be characterized as Indictments within the meaning of Rule 47 of Rules for purposes of ensuring the respect of the rights of the Accused under Article 17(4)(a) of the Statute.
- It is common knowledge in criminal law and practice, be it at national level or at the international level, that statements, documents and exhibits assembled during investigations could and do, in a good number of cases, disclose many more offences than those the Prosecutor includes in his Indictment. This of course comes within the exercise of his prosecutorial discretion as envisaged in Article 15 of the Statute, that is, to indict all or only some of the suspects for either all or only for some of the offences disclosed by the evidence assembled during the investigations.
- In this regard and in respect of these proceedings, We, both in Our Majority Decision of the 20th of May, 2004 (Page 12 Para 34) dismissing the Application to Amend the Indictment in order to add 4 Counts on gender offences, and in Page 10 Para 30 of Our Decision of the 2nd of August, 2004, denying the Prosecution Leave to File an Interlocutory Appeal against Our Decision of the 20th of May, 2004, did hold that the Prosecution was under no obligation either to prosecute all offences both under International and Sierra Leonean Law as stipulated by the Agreement and the Statute, or all offenders disclosed by the evidence assembled during investigations in any given case, nor has it in fact done so in the proceedings relating to the CDF and the RUF group of Indictees that are on-going before us.
- Confirming Our stand on this Prosecutor’s discretion and policy, the Appeals Chamber of the Special Court, in its Decision dated the 16th of May, 2005, also had this to say in Page 30 Para 82:
“The Prosecutor has not duty to indict a defendant for every offence in respect of which there exists prima facie evidence against him.”
- What the Prosecution is seeking in this Motion is to be allowed by the Chamber to adduce evidence of gender crimes in order to prove counts 3 and 4 of the Consolidated Indictment, even though no Count alleging gender offences appears in the said Indictment. The Prosecution argues that this is possible because sexual crimes and the evidence related thereto involve violence to life, health and physical or mental suffering or well being of persons just as they constitute a crime against humanity which is punishable under Article 2-1 of the Statute.
CONTENTS OF THE INDICTMENT
- I will, for purposes of an analysis of the arguments advanced by the Parties, reproduce in its entirety, the contents of Counts 3 and 4 of the said Indictment which read as follows;
“COUNTS 3-4: PHYSICAL VIOLENCE AND MENTAL SUFFERING
- Acts of physical violence and infliction of mental harm or suffering included the following:
a. between about 1 November 1997 and 30 April 1998, at various locations, including Tongo Field, Kenema Town, Blama, Kamboma and the surrounding areas, the CDF, largely Kamajors, intentionally inflicted serious bodily harm and serious physical suffering on an unknown number of civilian;
b. between November 1997 and December 1999, in towns of Tongo Field, Kenema, Bo, Koribondo and surrounding areas, and the Districts of Moyamba and Bonthe, the intentional infliction of serious mental harm and serious mental suffering on an unknown number of civilian by the actions of the CDF, largely Kamajors, including screening of “Collaborators,” unlawfully killing suspected “Collaborators,” often in plain view of friends and relatives, illegal arrest and unlawful imprisonment of “Collaborators” , the destruction of homes and other buildings, looting and threats to unlawfully kill, destroy or loot.
By their acts or omissions in relation to these events, SAMUEL HINGA NORMAN, MOININA FOFANA AND ALLIEU KONDEWA, pursuant to Article 6.1. and, or alternatively, Article 6.3 of the Statute, are individually criminally responsible for the crimes alleged below:
Count 3: Immune Acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute;
In addition, or in the alternative:
Count 4: Violence to life, health and physical or mental well-being of persons, in particular cruel treatment, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND ADDITIONAL PROTOCOL II, punishable under Article 3.a. of Statute.”
- From the content of counts 3 and 4 on which the Prosecution is relying to adduce the contested evidence, we note an enumeration of specific acts which the Prosecution opted to retain and use with a view to alleging that the said acts are constitutive of the elements of offences of physical violence and infliction of mental harm or suffering committed by the Kamajors. These include specific acts such as inflicting serious bodily harm, serious physical suffering, screening and killing of suspected collaborators, illegal arrest and unlawful imprisonment of collaborators, destruction of homes and other buildings, looting and threats to unlawfully kill, destroy or both.
RELATIONSHIP BETWEEN THIS APPLICATION AND THE CHAMBER DECISION DENYING THE PROSECUTION’S MOTION FOR AMENDMENT OF THE INDICTMENT
- The Accused’s right and entitlement to a fair trial does and should in fact include the right to seek the exclusion of all evidence which, even if it were considered relevant is, depending on the circumstances of the particular case such as this, prejudicial to the Accused either because it suggest the possibility that he committed other crimes which do not feature in the Indictment, or that such evidence is not directly related or relevant to the fact in issue, notably, to the crimes charged in the said Indictment.
- Indeed, one of the fundamental principles on which International Criminal Justice is based is that an Accused Person should neither be tried nor convicted on the strength of evidence relating to an offence for which he has not been indicted, nor should such evidence be adduced or admitted if this would not only be contrary to the provisions of Article 17(4)(a) of the Statute, but will also amount to a flagrant violation of the principle of fundamental fairness.
ABSENCE OF ANY SPECIFIC ALLEGATIONS OF ANY GENDER OFFENCE
- What appears apparent in the content of counts 3 and 4 of the Indictment and what I note is the absence of any specific mention of any gender offences in the Prosecutor’s enumeration in the statement and the particulars of the offences alleged in Counts 3 and 4, as constituting the offences of inhumane acts or as a crime against humanity and furthermore, as amounting to violence to life, health and physical or mental well being of persons, in particular cruel treatment, which is a violation of Common Article 3 of the Geneva Conventions.
- I would like to say here that a failure to plead in the Indictment, material facts and elements of offences which the Prosecution intends to rely on to prove it, renders it vague, unspecific, and defective. It is in fact surprising to note that the Prosecution, in amending without the leave of the Chamber, the Initial Individual Indictments and replacing them with a New Consolidated Indictment which, in these proceedings, has sparked off an intense judicial controversy, did not take advantage of that very opportune moment to seek the leave of the Court, to introduce gender crimes.
- This strategic move was necessary in order to clearly put the Accused Persons on notice that they were to face charges on gender offences for which leave to amend had been refused and in respect of which the Prosecution is now, without any specific counts on them, seeking leave to adduce evidence related to the said gender offences so as to prove counts 3 and 4 of the Indictment. In failing to do this, the Prosecution does not appear to have appreciated the full context of the decision of The Chamber which had, for reasons related to the lack of promptitude and diligence on its part, denied it leave to amend the Consolidated Indictment so as to include those 4 new Counts relating to sexual offences.
- In this regard, I have already said that the Prosecution is not obliged to prosecute all offences or all offenders revealed by the evidence but should, within reasonable time frames, granted that we are operating within the context of a Court with a time limited mandate, prefer an Indictment which clearly spells out those offences it has selected to prosecute. The Prosecution had already done this.
- The presumption thenceforth therefore, is that unless leave to amend to add a new charge or charges were granted by the Chamber, the omission to charge for an offence which is, or may be borne out by the evidence, means, for the Accused, as far as it concerns prompt notice to him or her of the nature and cause of the charge against him or her, that the charge or charges have been dropped and that there is no need for their Counsel to conduct defence investigations for purposes of an effective cross-examination on the testimony relating to those offences that do not feature clearly in the Indictment.
- In the case of PROSECUTOR VS KUPRESKIC ET AL, the Trial Chamber, commenting on the term “other inhumane acts”, reasoned that it lacks precision and is too general to provide a safe yardstick for the work of the Tribunal. In fact, the term “Inhumane Acts” was held to be so wide that it would violate the principle of specificity required in criminal law.
- In the case of SIMIC, the Accused was charged with the crime of cruel and inhumane treatment as acts of persecution. The Chamber declined to consider any cruel and Inhumane Acts falling outside the beatings, forced labour assignments and confinement under inhumane conditions which were specifically pleaded in the Indictment. The Chamber considered the wording cruel and inhumane treatment too vague and unspecific to have provided notice to the Defence of the incidents not explicitly set out in the Amended Indictment.
- The case in hand is indeed on all furs with the SIMIC Decision in relation to the necessity to enumerate the acts or offences that constitute the offence of Cruel and Inhumane Acts that is pleaded in Counts 3 and 4 of the Indictment. In fact, I am of the opinion that the arguments raised on the pleading of offences in an Indictment with specificity as required by Rule 47(C) of the Rules are directly related to and in fact impact on the doctrine of relevance and the admissibility of evidence which, in my considered judgment, should be admitted only if the evidence is related to facts in issue, that is, to the offences charged in the Indictment, rather than throw the gate open for the admission of evidence which may either be irrelevant to the facts in issue or prejudicial to the interests of the Accused.
- In the KAYISHEMA CASE, the Prosecution failed to adequately particularize the portions of evidence that supported the “Other Inhumane Acts” charges The Chamber was of the opinion that that this method of using the crime as a ‘catch-all’ specifying which acts support the count almost as a postscript – does not enable the counts of the “Other Inhumane Acts” to transcend from vagueness to reasonable precision.
TRIAL OF THE ACCUSED WITHOUT UNDUE DELAY
- One of the objections raised by the Defence is that the evidence on gender crimes sought to be adduced at this stage of the proceedings is extraneous to the indictment and would violate the Accused’s right of being tried without delay. On this argument, I would to observe that the Prosecution had, during the last session of this trial, indicated that it was to close its case in June, 2005, during the 5th session of this trial. If this Motion seeking the authority to lead evidence on gender crimes in order to prove offences alleged in Counts 3 and 4 were to be granted, we should equally be prepared, in order to ensure that the trial is fair, to grant the Defence, and this, in conformity with the doctrine of equality of arms, a reasonably long adjournment to enable it, in addition to the heavy burden it bears in the preparations for the commencement of the trial that was imminent, to carry out investigations on this proposed evidence so as to be in a position to effectively cross-examine those Prosecution Witnesses on their proposed gender testimony.
- The peculiarity of this Court which is unique and which I again would like to underscore here is that from the onset, its life span was limited by the Agreement and the Statute that set it up. In our Majority Decision dated the 20th of May, 2004, referred to earlier, dismissing the Motion seeking to Amend the Indictment in this case in order to include gender offences, We, on Page 15 Para 53, had this to say on what may amount to an ‘undue delay’ in trying the Accused, given the particular context of this Court:
“For our part, as a Special Court with a time limited mandate, what could amount to ‘an undue delay’ in trying an Accused is certainly more demanding and we would say that it really means ‘a much shorter time frame’ that may be longer in municipal judiciaries which are institutional monuments that do not wither away with time like International Criminal Tribunals such as ours.”
- Given that the closure of the case for the Prosecution is imminent, we have no convincing legal reason to shift grounds from the stand we had earlier taken on this issue because the trial of the Accused will be unduly delayed if we do grant the Prosecution’s application.
- The Dissenting Opinion dated the 31st of May, 2004, on the Application for leave to Amend the Indictment in this case which supports the Amendment, referred, amongst others, to the Canadian Case of PROULX VS THE ATTORNEY GENERAL OF QUEBEC in which the Supreme Court of the Canada stated as follows:
“The Crown must have sufficient evidence to believe that guilt could properly be proved beyond reasonable doubt before reasonable and probable cause exists, and criminal proceedings can be initiated. A lower threshold for initiating prosecutions would be incompatible with the Prosecutor’s role as a public officer charged with ensuring justice is respected and pursued.”
- If this case whose dictum I hold in high esteem, is cited to justify the latitude which the Prosecution enjoys in determining the length of time it needs to assemble evidence before preferring charges or an Indictment, my reaction to this, with due respect, is that it cannot, even in the context of the cited case, be said to be limitless if the universal principle of trying Accused Persons without undue delay has to be seen to be respected.
- Furthermore, I would say that the Canadian Judiciary is one of those we have referred to in our Decision as a municipal institutional monument that does not wither away with time, but while time is also of the essence in this context in Canada, it may not be as much of the essence there as it is in this case and environment where the Prosecution, operating in a Court with a time limited mandate, should be, and is indeed, permanently and attentively preoccupied with thoroughness and expeditiousness in accomplishing its judicial functions within this strictly defined time frame.
- In this regard, and in that same Majority Decision refusing the Leave to Amend, We, on the issue of the diligence with which the Prosecution should have acted in relation to the detection of those gender offences, granted that the Prosecutor functions with “Prosecutors and Investigators experienced in gender related crimes” as stipulated in Article 15(4) of the Statute, had this to say.
“ ... This should have been uncovered through the exercise of ordinary and normally expected professional diligence on the part of the Prosecution and the investigators, and the Accused brought to justice after having, as was the case with other offences for which they now stand indicted, been informed and in detail, of the nature and cause of the charge against them as mandatorily stipulated in Article 17(4)(a) of the Statute ... ...The second question is whether the rights of the Accused persons would be violated if the amendment sought by the Prosecution were granted ...
We would like to say here that in providing an answer to these two questions, two major factors have to be considered, namely, the time-limited mandate of this Court and the necessity to examine every application for an amendment on its merits and on a case by case basis ... ”
DISTINCTION BETWEEN THIS CASE AND OTHERS THAT HAVE BEEN CITED
- On another score and more importantly, I consider that the situation in this case, even though similar to others in its rationale, is, at least in one aspect, clearly distinguishable from the jurisprudence of other Sister Tribunals which have been cited by the Prosecution. The issue of admissibility of gender evidence which we are examining here, in fact dates as far back as the 9th of February 2004, and has a direct connection with the Prosecution’s Application to Amend the Indictment in order to add 4 new Counts on gender offences that was filed on that date.
- Our Decision rejecting the said Application, I have recalled, was rendered on the 20th of May, 2004. It was rejected because we considered that it was not brought in time and that it would, if granted at that stage, violate the rights of the Accused under Articles 17(4)(a) and 17(4)(c) of the Statute. The Prosecution applied for leave to appeal against this Majority Decision under the provisions of Rule 73 of the Rules. This application was turned down for reasons indicated earlier. The Prosecution, still contesting this decision and again as I have already indicated, appealed against it even though the law makes it clear that decisions under Rule73(B) are appealable only when leave is granted by the Trial Chamber. The Appeals Chamber dismissed the appeal.
- It is again the Prosecution which, after losing its judicial bid to have included in the Indictment, the 4 new gender Counts, that is moving this same Chamber, to grant leave for it to be allowed to adduce gender evidence which the Prosecution admits was to be adduced and used to prove those 4 new Counts but this time, according to the Prosecution, to prove 2 existing Counts in the Indictment, namely Counts 3 and 4, which We observe, make no mention of gender acts alleged as constituting the offences featuring therein.
MOTION FOR THE ADMISSIBILITY OF EVIDENCE
As far as this Motion on the Admissibility of Evidence is concerned and in the light of the foregoing analysis, I am of the opinion that just as the Prosecutor is under no duty or obligation to institute a prosecution for all offences or against all offenders identified by the evidence assembled, so also is the Prosecution equally neither under a duty nor an obligation to adduce all evidence available to it after investigations, to prove any case, particularly in the following circumstances:
- where it is not directly or ex facie, relevant to facts in issue, that is, to the Counts in the Indictment;
- where its probative value is outweighed by the prejudicial effects it might have on the legal and statutory rights of the Accused;
- where it violates the Accused’s Article 17(2) statutory rights to a fair hearing, as well as those of Article 17(4)(a), (b) and (c) which require that he be informed promptly of the charge against him, to have adequate time and facilities for the preparation of his or her Defence, and in addition, to be tried without delay and,
- where the evidence is such that it should, even if it were ordinarily relevant, be excluded from the records if admitting it would bring the administration of justice into disrepute within the context of Rule 95 of the Rules, or would be prejudicial to the integrity of the proceedings.
APPLICABLE LAW AND JURISPRUDENCE
- I would like to say here that besides the fact that the Courts have an inherent jurisdiction to exclude irrelevant evidence, they also have the inherent jurisdiction and are, at the same time, vested with the discretion, under Rule 89(C) of the Rules, ‘to admit any relevant evidence’. Furthermore, in the process of admitting or excluding evidence, Rule 54 of the Rules provides as follows:
“At the request of either Party or of its own Motion, a Judge or a Trial Chamber may issue such orders, or summonses, subpoenas, warrants and transfer orders as may be necessary for purposes of an investigation or for the preparation or conduct of a trial.”
- Under this Rule, the Court or the Judge of its own Motion or at the request of any party, enjoys the extensive discretion to issue such Orders as may be necessary for purposes of an investigation or for the preparation or conduct of a trial and in doing so, should ensure that rights of the parties are adequately protected.
- These rights include inter alia, for the Prosecution, the right to or not to prosecute any Accused Person, and, subject of course to the general rules on the mechanics of admissibility, to adduce all relevant evidence in the pursuit of that objective. For the Accused on the other hand, this means, inter alia and particularly, the right to a fair trial, to be protected against evidence which is either irrelevant or inadmissible, to be informed promptly of the charges against him, to have adequate time and facilities for the preparation of his or her Defence, and in addition, to be tried without delay.
APPLICATION OF THE PRINCIPLE OF GENERALLY ACCEPTED RULES OF EVIDENCE
- The Chamber of a Judge for purposes of a fair determination of any matter, may apply other Rules of evidence that are consonant with our Statute and with the general principles of law. In this regard, Rule 89(B) and 89(C) of the Rules provide as follows:
“In cases not otherwise provided for in this section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”
“The Chamber may admit any relevant evidence.”
- I would to say here that Rules and general principles referred to in Rule 89(B) and the notion of ‘relevance’ in Rule 89(C) include the jurisprudence which the Courts and Tribunals have built up over the years and which is currently being developed on similar issues.
- MAY AND WIERDA INTERNATIONAL CRIMINAL EVIDENCE PAGE 103 PARA 4.25, have this to say on the same issue:
“... Courts have an inherent jurisdiction to exclude irrelevant evidence. This was reflected in the IMT and IMTFE Charters (Articles 20 and 13) respectively which stated that the Tribunal may require to be informed of the nature of any evidence before it was offered so that it may rule upon it’s relevance. The Judges were under no duty to exclude irrelevant evidence in order to preserve the right of the accused to a fair and expeditious trial. Thus the IMT Charter also stated at Article 18:
“The Tribunal shall (a) confine the Trial strictly to a hearing of the issues raised by the charges, (b) take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of kind whatsoever.”
- In the United States America, the Federal Rules of Evidence (Rules 403 and 404) on this same subject provide that:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
- Even though the provisions of Rule 95 regulate the issue of the admission of prejudicial evidence, albeit indirectly, and although the Court has the inherent jurisdiction to exercise a discretion to exclude prejudicial evidence under the general provisions of Rule 54 of the Rules, I still consider, in the circumstances, that a reference and an application of other Rules of Evidence which will best favour a fair determination of the matter before us and which are consonant with the spirit of the Statute and the general principles of law as provided for in Rule 89(B), including the applicable jurisprudence, will advance a fair determination of the issues at stake in the instant Motion.
- In applying the provisions of Rule 89(C), subject of course to the provisions of Rule 95 of the Rules, I observe that for such evidence to be admitted, it must, as is usually the case in criminal cases, be relevant to the ingredients of the offences alleged in the Indictment, and furthermore, that it is not prejudicial to the legal and statutory rights of the Accused
WHAT AMOUNTS TO PREJUDICIAL EVIDENCE
- Prejudicial evidence, in my considered opinion, is evidence which, if adduced, has the potential of staining mind of the Judge with an impression that adversely affects his clean conscience towards all parties, and particularly, towards the party who is the victim of that evidence which is tendered, to the extent that it leaves in the mind of the Judge, an indelible scar of bias which could make him ill disposed to the cause of the victim of the said evidence as a result of which an injustice could be occasioned to that party who after all, may be innocent or have a just cause, and who, but for the admission of that contested evidence, should ordinarily have had the benefit of the judicial balance tilting in his favour.
- In the light of the above, it is evident that evidence is not necessarily prejudicial because it is incriminating but because it is considered, even if it were relevant at all, as being unfairly compromising of the interests and the status of innocence or of the good standing of the victim of such evidence.
- In Black’s Law Dictionary 7th Ed., undue prejudice is defined as the ‘harm resulting from a fact Trier being exposed to evidence that is persuasive but inadmissible or that so arouses the emotions that calm and logical reasoning is abandoned.
- Indeed, as stated by Peter Murphy in A Practical Approach to Evidence, 3rd Ed., Page 7:
“The general rule is that for evidence to be received by the Court, it must be relevant to the facts in issue. The proof of supernumerary or unrelated facts will not assist the Court and may, in certain cases prejudice the Court against a party while having no probative value on issues actually before it.”
- I would like to refer here to the case of R V SANG (HL)  AC 402 AT 434 where LORD DIPLOCK had this to say:
“... there has now developed a general rule of practice whereby in a trial by jury the Judge has the discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value.”
- In the case of NOOR MOHAMED VS R  AC 182, LORD DU PARCQ had this to say:
“... cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible ...”
THE CASE OF THE PROSECUTION VS ISSA HASSAN SESAY, MORRIS KALLON AND AUGUSTINE GBAO CASE NO SCSL-04-15-T
- In addition to the preceding analysis, and on the legal issue of exclusion of evidence on the grounds of its having a prejudicial effect, Our Trial Chamber came into grips with determining the extent to which Rule 89(C) and Rule 95 of the Rules could be applicable following a Defence Oral Application to exclude a portion of the testimony of a Prosecution witness in the proceedings against RUF group of Indictees, namely, Issa Hassan Sesay, Morris Kallon and Augustine Gbao.
- In this case, one of the Counts in the Indictment alleges looting against the 3 Accused Persons. On the 28th of April, 2005, during the trial proceedings, a Prosecution Witness testified that when he was on his way to Kailahun, the 3rd Accused, Augustine Gbao, who was then the Chief Intelligence Military Officer and Leader of Military Investigation and Broadcasting (MIB) for the RUF, took his drug from him and said that it had become ‘government property’ meaning that it no longer belonged to him . Gbao, as was expected, never gave the drug back to the witness. This, for this witness who had been given the said drug to cure his bleeding ear, meant that he was permanently dispossessed of it by the 3rd Accused, Augustine Gbao.
- At the conclusion of this witness’ testimony, Counsel for Mr. Gbao, made an oral application for the exclusion of this evidence under Rule 89(C) of the Rules. He contended that the evidence that Mr. Gbao had stolen the drug from the Witness ‘paints a picture’ of the 3rd Accused as ‘having a spiteful nature’. Gbao’s Counsel accordingly submitted that the evidence was prejudicial, of no probative value whatsoever, and not relevant to any Count in the Indictment. The Prosecution in reply submitted that the incident may well be evidence of looting which is an offence charged in the Indictment and that the evidence sought to be excluded is relevant.
- In dismissing the oral application and admitting the evidence related to the alleged taking of the drug by the 3rd Accused from the Prosecution Witness, we had this to say in our Decision:
“In conclusion therefore, the Chamber is satisfied that the evidence in question may be relevant to the facts in issue and the relevant Charge in the Indictment. We are likewise, satisfied that the prejudicial effect of the admission of the evidence does not outweigh its probative value.”
THE JUDGES DILEMMA IN THE PROCESS
- In administering justice, a Judge is guarded and guided by the law and in the process, is only answerable to the law and to his conscience. As he follows the evidence adduced by the parties on the issues at stake, his conscience and sentiments are supposed to remain sacrosanct , unstained and stable so as to enable him to continue holding the judicial balance with the equilibrium of the law and the Judge’s conscience that are supposed to regulate it.
- Given the traditional role of the Judge to control this balance and to ensure that the parties before him are on an equal pedestal within the context of the principle of equality of arms, it becomes necessary for him to see to it that only relevant and legally admissible evidence is admitted whilst at the same time ensuring that evidence which is unfair and prejudicial to either party, even if it were ordinarily relevant, is excluded, if it is prejudicial and if admitting it will not only violate the doctrine of fundamental fairness but will also impact negatively on the integrity of the proceedings, and more importantly, bring the administration of justice into disrepute.
STATUS OF THE GENDER EVIDENCE AND ITS ADMISSIBILITY
- In the light of the foregoing, what status would I accord, in these circumstances, and in the light of the foregoing analysis, to the gender evidence that has been tendered by the Prosecution and objected to by the Defence on the grounds, inter alia, of prejudice?
- The Prosecution accepts that the evidence they are seeking to introduce is the same evidence they were to adduce to prove the 4 New Counts if they succeeded in adding them to the Indictment. If it knew that the gender offences or evidence related to them are ingredients of or are offences that are classified as Inhumane Acts or Crimes Against Humanity, or that those gender recriminations are encapsulated into these globally defined offences, one would imagine that the Prosecution would not have thought it necessary to apply to the Chamber for an Order to amend in order to include 4 new Counts on gender offences in the Indictment . Furthermore, one would like to understand why the Prosecution, in drawing up the Consolidated Indictment, which should be in conformity with the provisions of Rule 47(C) and for purposes of clarity, did not, in Counts 3 and 4, specifically allege or even mention these sexual offences or acts as constituting Inhumane Acts or Crimes Against Humanity.
SUMMARY AND CONCLUSION
In the light of the foregoing analysis of the facts, of the Rules of Procedure and Evidence of the Special Court, and of the Rules which I have, for purposes of this Opinion, referred to in the light of the provisions of Rules 89(B) and 89(C) including the jurisprudence related thereto, it is my opinion, and I do so hold, that the Application by the Prosecution for Leave to Adduce Gender Evidence in these proceedings, given the circumstances of the this time limited Court and of this case, can neither be sustained nor allowed for the following reasons:
- Failure To Plead Gender Acts Or Offences In Counts 3 And 4 Of The Indictment
A failure by the Prosecution to plead gender acts or offences in Counts 3 and 4 or anywhere else in the said Indictment, given that a mere allegation of Inhumane Acts as offences against humanity is too vague to be as specific as it is supposed to within the context of Rule 47(C) of the Rules, is fatal to the admissibility of this evidence
- No Obligation To Charge All Offences And Offenders
The Prosecution is not obliged to prosecute all offences or all offenders as the evidence may disclose nor is it under a duty or obligation to adduce all the evidence at its disposal particularly if it is not directly relevant to the facts in issue, such as the gender crime evidence sought to be adduced by the Prosecution is, in relation to Counts 3 and 4.
The rule of relevancy is intended to limit the admissibility of facts only to those which are directly and not just speculatively relevant or incidental to the issues at stake. They should not be extraneous and must be so directly connected to the facts in issue that it does not require straining the imagination to determine whether that piece of evidence sought to be adduced or admitted, is indeed relevant to the issues at stake or not.
In this regard, the omission to charge for an offence which is borne out by the contested evidence means that the charges have been dropped and that the Court should not allow that evidence to be adduced, furthermore, that the Defence does not need to carry out investigations into the evidence relating to the abandoned charges for purposes of ensuring an effective cross examination on the testimony relating to those offences.
- Right To A Fair Trial
The right of the Accused to a fair trial as guaranteed in Article 17(2) requires that the evidence to be adduced in the trial must be directly relevant to the facts in issue, that is, to the counts and offences alleged in the Indictment and not evidence extraneous to them, in other words, irrelevant to proving those charges.
- Imminent Closure Of The Case For The Prosecution
The Prosecution has already indicated that it is at the verge of closing its case. If it were, at this stage, allowed to adduce the evidence it is seeking to, this would obligatorily necessitate a reasonably lengthy adjournment for the defence to carry out investigations on the proposed evidence of the witnesses in question so as to effectively conduct their cross examination of those witnesses on their proposed testimony. This process will certainly, in the context of the time limited mandate of this Court, involve an undue delay in the trial of the Accused Persons who, I observe, have been held in custody for quite some time, and will occasion a violation of their rights under Article 17(4)(c) of the Statute.
- The Doctrine Of Fundamental Fairness
The admission of the gender evidence after the Chamber had denied the Prosecution’s Motion to amend the said Indictment in order to include gender offences which were to be established by a recourse to adducing this contested evidence is, to my mind, offensive to the doctrine of Fundamental Fairness and the Respect for Judicial Decisions by all Parties.
In fact, if this application were granted, it will mean that we would have, for no good or just cause, indirectly overturned our own Decision of the 20th of May, 2004, which refused the Prosecution leave to amend and add 4 New Counts alleging gender offences. This course of action, to my mind, is neither judicially desirable nor acceptable.
I think that Their Lordships, The Learned Justices of the Appeals Chamber, if and when they become seized of this issue in due course, will exercise their appellate prerogatives in this regard at the appropriate time.
- The Prejudicial Nature Of The Evidence
The argument that the evidence sought to be adduced will be prejudicial to the interests of the accused appears to me to be well founded in the light of the law and the jurisprudence I have highlighted on this subject.
In this regard, I am of the opinion that the evidence which the Prosecution is seeking to adduce under the guise of proving Count 3 and 4 of the Indictment is indeed of a nature to cast a dark cloud of doubt on the image of innocence that the Accused enjoys under the law until the contrary is proved. In addition, it has the potential of violating his statutory right to a fair trial.
- Furthermore, Rule 26bis of the Rules provides as follows:
“The Trial Chamber and the Appeals Chamber shall ensure that a trial is fair and expeditious and that proceedings before the Special Court are conducted in accordance with the Agreement, the Statute and the Rules, with full respect for the rights of the accused and due regard for the protection of victims and witnesses”
If this application of the Prosecution to adduce this evidence were to be allowed, The Chamber, considering a number of the preceding considerations, would not have fully respected the rights of the Accused Persons as required by Rule 26bis and other statutory provisions in this regard particularly so because the prejudicial effect of the admission of the evidence in issue would outweigh its probative value.
- Having regard to the foregoing considerations,
I concur with the Conclusion and the Order as set out in the Majority Decision.
Done in Freetown, Sierra Leone, this 24th day of May, 2005.
Hon. Justice Benjamin Mutanga Itoe,
[Seal of the Special Court for Sierra Leone