Court name
Special Court for Sierra Leone
Case number
SCSL 15 of 2004
Case name

Prosecutor v Issa Hassan Sesay & Ors - Decision on Defence Application for Leave to Appeal the Decision on Motion for Clarfication and for a Ruling That the Defence Has Been Denied Cross-examination Opportunites
Law report citations
Media neutral citation
[2006] SCSL 130


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

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295996


TRIAL CHAMBER I


Before:
Hon. Justice Bankole Thompson, Presiding Judge
Hon. Justice Pierre
Boutet
Hon. Justice Benjamin Mutanga Itoe
Registrar:
Mr. Lovemore G. Munlo SC
Date:
10th of November 2006
PROSECUTOR
Against
ISSA HASSAN SESAY
MORRIS KALLON
AUGUSTINE
GBAO

(Case No. SCSL-04-15-T)


Public Document


DECISION ON DEFENCE APPLICATION FOR LEAVE TO APPEAL THE
DECISION ON MOTION FOR CLARIFICATION AND FOR A RULING THAT THE DEFENCE HAS
BEEN
DENIED CROSS-EXAMINATION OPPORTUNITIES


Office of the Prosecutor:

Defence Counsel for Issa Hassan
Sesay
:
James C. Johnson
Peter Harrison

Wayne Jordash
Sareta Ashraph


Defence Counsel for Morris
Kallon
:
Shekou Touray
Charles Taku
Melron
Nicol-Wilson


Court Appointed Counsel for Augustine
Gbao:

Andreas O’Shea
John Cammegh

TRIAL CHAMBER I (“Trial Chamber”) of the Special Court for
Sierra Leone (“Special Court”) composed of Hon. Justice Bankole
Thompson, Presiding Judge, Hon. Justice Pierre Boutet, and Hon. Justice Benjamin
Mutanga Itoe;

SEIZED of the “Application for Leave to Appeal the Decision (3
August 2006) on Defence Motion for Clarification and for a Ruling that
the
Defence has been Denied Cross-Examination Opportunities” filed by Defence
Counsel for the First Accused, Issa Hassan Sesay,
(“Defence”) on the
22nd of August 2006 (“Application”);

NOTING the Response to the Motion filed by the Office of the
Prosecutor (“Prosecution”) on the 1st of
September 2006;

NOTING that no reply was filed by the Defence within the prescribed
time limits;

PURSUANT to Rules 7, 54 and 73 of the Rules of Procedure and Evidence
(“Rules”);

THE TRIAL CHAMBER ISSUES THE FOLLOWING DECISION:

I. SUBMISSIONS OF THE PARTIES

A. The Application

  1. Pursuant
    to Rule 73(B), the Defence seeks leave to appeal this Chamber’s Decision
    on Defence Motion for Clarification and for
    a Ruling that the Defence has been
    denied Cross-Examination Opportunities, issued on the
    3rd of August 2006 (“Impugned
    Decision”).[1]
  2. In
    its original Motion for a Ruling that the Defence has been Denied
    Cross-Examination Opportunities, which gave rise to the Impugned
    Decision, the
    Defence claimed that there was need for clarification as to whether it was
    estopped from asserting lack of notice in
    an application for the recall of
    witnesses.[2]

3.
The Defence submits that the clarification offered by this Chamber in the
Impugned Decision, specifically that “the recall
of witnesses for
cross-examination remains a discretionary matter for the
Court,”[3] failed
to facilitate the administration of
justice.[4] The Defence
further submits that as a result of the Impugned Decision, it cannot be certain
as to the intended meaning and application
of the prohibition on claiming relief
on the basis of lack of notice, thus denying it the right to a fair hearing and
an equal opportunity
to present its case. The Defence submits that this
constitutes exceptional circumstances and irreparable prejudice required to
sustain
leave to
appeal.[5]

4. The Defence asserts that this Chamber’s ruling in the Impugned
Decision leaves it with the choice of either violating this
Chamber’s
stated provision regarding notice, or foregoing its procedural right to apply
for a recall of witnesses. The Defence
asserts that the resulting lack of access
to the discretionary remedy of recalling witnesses potentially gives rise to
irreparable
prejudice.[6]

B. The Prosecution Response

5. The Prosecution preliminarily contends that the Application was filed
out of time, as it was due on the 21st of August 2006,
and should consequently be dismissed by the
Chamber.[7]

6. The Prosecution submits that the Defence cannot infer from the Impugned
Decision that it is estopped from applying to recall
Prosecution witnesses, as
the Impugned Decision did not address the issue of recall of
witnesses.[8] The
Prosecution further submits that the Defence’s original motion for
clarification was rather, a request for a ruling on
a new issue and that the
Trial Chamber correctly ruled that the Defence had not sought any specific
relief, but rather, an abstract
ruling.[9]

7. The Prosecution asserts that the claim of the Defence cannot succeed on
appeal, as it cannot establish that the Trial Chamber
was under a positive duty
to rule on the issue raised by the Defence. The Prosecution further asserts that
even if the Defence’s
claim could succeed on the merits, this in itself
does not satisfy the Rule 73(B) “exceptional circumstances” test.
Finally,
the Prosecution submits that there is no potential for irreparable
prejudice.[10]


II. APPLICABLE LAW

8. In the Chamber’s view, it is settled law that Rule 73(B) of the
Rules pre-eminently governs the issue of interlocutory
appeals against decisions
issued by a Trial Chamber. This re-statement of the law notwithstanding, it is,
as a preliminary matter,
necessary to focus on the law relating to the issue of
filing of documents within prescribed time limits in the light of the
Prosecution’s
submission that the present Application was filed out of
time. Based on this submission, the Chamber deems it necessary to set out
here
the applicable law in respect of the prescribed time limits for the filing of
applications for leave to appeal. In this respect,
it is absolutely clear, from
Rule 73(B), that an application to file an interlocutory appeal within the
jurisdiction of this Court
must be filed “within 3 days of the
decision” which is the subject of the appeal.

9. As to the computation of the 3 day time limit prescribed by Rule 73(B),
Rule 7(A) states that:

Unless otherwise ordered by a Chamber or by a Designated Judge, or otherwise
provided by the Rules, where the time prescribed by or
under the Rules for the
doing of any act shall run from the day after the notice of the occurrence of
the event has been received
in the normal course of transmission by the
Registry, counsel for the Accused, or the Prosecutor as the case may be.

III. DELIBERATION

10. Based on the records, the Chamber finds that the Impugned Decision was
issued on Thursday, the 3rd of August 2006 and served
by the Court Management Section of the Special Court (“CMS”) on the
same day. Subsequently,
the instant Application was filed on Tuesday, the
22nd of August 2006 and served on the following
day.

11. In the Chamber’s opinion, under Rule 7(A), time limits for filing
begin to run the day after a party receives notice of
an
event.[11] In the
instant case, the time limit began to run on Friday, the
4th of August 2006, the day after the issuing and the
service of the Impugned Decision. From Monday, the 7th
of August 2006 through Friday, the 18th of August 2006,
this Court was on judicial recess. Time limits for filing documents ran during
the recess. Pursuant to Rule 7(B),
in cases where the time limits for the filing
of a document fell within the period of the recess, the time limit would be
extended
to the first subsequent working day, which was Monday, the
21st of August
2006.[12] It is our
view that in the context of the present Application, the three-day time limit
ended on the 7th of August 2006, the first day of the
recess. It follows, therefore, considering that no leave was sought or granted
for an extension
of time, that in order to be within time, the Application
should have been filed on the 21st of August 2006. The
Chamber finds, therefore, that the Application is not in compliance with Rules
7(A) and (B) and 73(B).

12. The Chamber, accordingly, concludes that the Motion was filed out of
time.

13. Furthermore, according to Article 12 – Late Filing of the
Practice Directions on Filing Documents Before the Special Court, a party
filing a late document shall indicate the reasons for the delay in the relevant
form of the CMS which, in turn, shall complete
a Late Filing Form to accompany
the document. We find that no such indication was made nor was any leave granted
by the Trial Chamber
for the late filing of the Application.

FOR THE FOREGOING REASONS,

THE APPLICATION is accordingly DISMISSED in its
entirety. We, therefore, decline to consider its merits.
[13]

Done at Freetown, Sierra Leone, this 10th day of
November 2006

Hon. Justice Benjamin Mutanga Itoe

Hon. Justice Bankole Thompson

Hon. Justice Pierre Boutet

Presiding Judge
Trial Chamber I


[Seal of the Special Court for Sierra Leone]



[1] Motion, para.
1.
[2] Id.,
para. 2. In particular, the Defence sought a clarification as to whether
previous rulings of this Chamber, which denied various
Defence applications for
exclusion of supplemental evidence on the basis that the first Accused had
sufficient knowledge of the facts
asserted in such evidence, were intended to
apply to all applications for discretionary
relief.
[3]
Id., para. 4, citing Impugned Decision, para.
5.
[4] Id.,
para. 4.
[5]
Id., para.
5.
[6] Id.,
para. 21
[7]
Response, para.
2.
[8] Id.,
para. 7.
[9]
Id., para.
8.
[10] Id.,
para. 17.
[11] For
further reference, see for example Prosecutor v. Brima et al.,
SCSL-04-16-AR73, Decision on Brima-Kamara Defence Appeal Motion Against Trial
Chamber II Majority Decision on Extremely Urgent Confidential
Joint Motion for
the re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex
Tamba Brima and Brima Bazzy Kamara,
8th December 2005,
paras 30-34.
[12]
See also Prosecutor v. Sesay et al., SCSL-04-15-T, Order Scheduling
Judicial Recess and Authorization Pursuant to Rule 4, 15 June
2006.
[13] For
further reference on the issue of late filing of documents, see also
Prosecutor v. Norman et al., SCSL-04-14-T, Decision on Kondewa
Application for Leave to Call Additional Witnesses, 20 September 2006, in which
the Chamber refused
to take into consideration a document as it had been filed
outside the prescribed timelimits. See also id., Kondewa – Order
Rejecting the Filing of Defence Objection to the Prosecution’s Motion for
Judicial Notice and Admission
of Facts, 5 May 2004.