Court name
Special Court for Sierra Leone
Case number
SCSL 14 of 2004
Case name

Prosecutor v Sam Hinga Norman & Ors - Decision on Application by Court Appointed Counsel for the First Accused for Leavfe to Lead Evidence on Alternate Days and for Right to Communicate
Law report citations
Media neutral citation
[2006] SCSL 18


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

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295996


TRIAL CHAMBER I


Before:
Hon. Justice Pierre Boutet, Presiding Judge
Hon. Justice Bankole
Thompson
Hon. Justice Benjamin Mutanga Itoe
Interim Registrar:
Mr. Lovemore Munlo SC
Date:
16th of February, 2006
PROSECUTOR
Against
SAM HINGA NORMAN
MOININA FOFANA
ALLIEU
KONDEWA

(Case No.SCSL-04-14-T)


Public Document


DECISION ON APPLICATION BY COURT APPOINTED COUNSEL FOR THE
FIRST ACCUSED FOR LEAVE TO LEAD EVIDENCE ON ALTERNATE DAYS

AND FOR
RIGHT TO COMMUNICATE


Office of the Prosecutor:

Court Appointed Counsel for Sam Hinga
Norman
:
Luc Côté
James Johnson
Kevin Tavener

Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr.
Alusine Sani Sesay


Court Appointed Counsel for Moinina
Fofana
:


Victor Koppe
Arrow Bockarie
Michiel Pestman


Court Appointed Counsel for Allieu
Kondewa:

Charles Margai
Yada Williams
Ansu Lansana

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

MINDFUL OF the Oral Application made by Court Appointed Counsel for
the First Accused in the course of the proceedings of the
24th of January, 2006 (“Motion”), moving
The Chamber to grant leave to the First Accused to give his testimony before
this
Court on alternate days and that the intervening time be used to afford the
Defence of the First Accused complete freedom of interaction
and communication
between him, Counsel, and the First Accused during the duration of the testimony
of the First Accused;

NOTING the Prosecution’s Oral Response given on the same
day;

NOTING Counsel’s Reply to the said Prosecution Response;

MINDFUL OF The Chamber’s Oral Decision on the Motion delivered
in Court on the 24th of January,
2006;[1]

NOTING that the Case for the Prosecution against Sam Hinga Norman,
Moinina Fofana and Allieu Kondewa was opened on the 3rd
of June, 2004;


CONSIDERING that during the court proceedings of the
8th of June, 2004, The Chamber made an oral ruling on
the First Accused’s right to self-representation and that in the interest
of justice, it can only be exercised with the assistance of Counsel to be
assigned to the trial in whatever capacity (standby or
otherwise) and with clear
respect for the Accused’s rights under Article 17 of the Statute;


NOTING that the First Accused, from the 21st
of September, 2004, decided not to be present in the court room anymore;


NOTING that the Prosecution closed its case on the
14th of July, 2005;


CONSIDERING that following the issuance of the “Decision on
Motions for Judgment of Acquittal Pursuant to Rule 98” on the
21st of October, 2005, The Chamber issued its
“Order Concerning the Preparation and Presentation of the Defence
Case”, which
ordered that a Status Conference be held on the
27th of October, 2005, and that The Chamber at that
session require the Defence to present the particulars for their preparation of
the
Defence Case and indicate, inter alia, “whether the Accused
will testify at trial”;


MINDFUL OF the fact that this Order of the
21st of October, 2005, ordered each Defence team to
file, inter alia, a list of witnesses with an indication of whether the
witness will testify in person or pursuant to Rule 92bis and further
ordered that a Pre-Defence conference be held on the
11th of January, 2006 and that the Defence case to
commence on the 17th of January, 2006;


CONSIDERING that at the Status Conference of the
27th of October, 2005, The Chamber reminded the Parties
of Rule 85(C) which provides that the “Accused may, if he so desires,
appear
as a witness in his own defence. If he chooses to do so, he shall give
his evidence under oath or affirmation and, as the case may
be, thereafter call
his witnesses” and specified that if the Accused elected to testify, he
should testify first and call his
witnesses at that close of his testimony;


MINDFUL OF the fact that following the Status Conference of the
25th of November, 2005, The Chamber issued its
“Consequential Order for Compliance with the Order Concerning the
Preparation and
Presentation of the Defence Case” on the
28th of November, 2005, where The Chamber noted the
failure of the Defence to comply with its Order of the
21st of October, 2005 and re-iterated its order for the
Defence to give an “indication of whether each of the Accused intends to
testify in his own Defence and this, pursuant to Rule 85(C) of the Rules”,
by the 5th of December, 2005;


NOTING that on the 5th of December, 2005,
Counsel for Norman filed their witness list indicating that “the First
Accused intends to testify in his
own Defence pursuant to Rule 85(C) of the
Rules”;


CONSIDERING that at the Pre-Defence Conference of the
11th of January, 2006, Counsel for Norman indicated
certain difficulties in securing Norman’s testimony, but promised to give
a
definite reply to the Prosecution on whether Norman was coming or not after
the conference;[2]


MINDFUL OF the fact that at the Status Conference of the
18th of January, 2006, Counsel for Norman confirmed
Norman’s intention to testify as a witness in his own defence and also
confirmed
that he would comply with the order to testify first before other
witnesses and The Chamber ordered Counsel that the First Accused
shall take a
stand on the 20th of January, 2006;


MINDFUL OF the fact that at the same Status Conference of the
18th of January, 2006, The Chamber delivered its ruling
on the mode of examination and on trial procedure when the First Accused comes
to testify, as follows:


Given that the First Accused is to appear as the first witness in his own
case, we would like to emphasise that the proper order of
examination would be
for Counsel for Norman to examine him first; that will be then followed by
cross-examination by Counsel for
the Second Accused; cross-examination by
Counsel for the Third Accused; then cross-examination by the Prosecution. The
scope of
the cross-examination again should, as much as possible, [...] be
limited to issues raised during examination-in-chief [... that
it be] a focused
cross-examination if at all possible and feasible. [...] [C]ounsel for the First
Accused may re-examine the First
Accused once this is completed, but again, as
the rule prescribes, only on new issues that may have been raised during
cross-examination.
[...]

[O]nce the accused has taken an oath or affirmation and commenced testifying
he has then become the witness of the Court and the Prosecution
and the Defence
must not communicate with the witness on the content of the witness testimony
because he is a witness in the Court,
except with leave of the Court at that
particular moment. If the Defence wishes to communicate with the witness at that
particular
moment, they shall inform the other Parties of their intent and what
is the matter that they wish to raise and this matter may be
raised with the
Chamber if need be. [...]


CONSIDERING that following this order, Counsel for Norman clarified
the particulars of the order in respect of the communication between himself
and
Accused Norman after which the Chamber ruled that Counsel shall not be allowed
to communicate with Norman in the course of his
evidence;


CONSIDERING that Counsel for Norman did not then seek any further
clarification nor raise an objection regarding The Chamber’s ruling either
in respect of the date of commencement of the First Accused’s testimony or
the mode of his testimony;


NOTING therefore that on the 18th of January,
2006, The Chamber adjourned with the clear understanding that the First Accused
would commence his testimony on the 20th of January,
2006 at 9:30 a.m.;


NOTING that at the court proceeding of the
19th of January, 2006, Counsel for Norman brought an
application before The Chamber requesting that additional seven days be granted
to
his team to allow proper preparation of the examination of the First
Accused;


RECALLING that in making this application, Counsel argued that his
inability and unpreparedness to lead Norman’s examination was due
to the
absence of the First Accused from Court proceedings and his lack of cooperation,
which ended only recently;


CONSIDERING that The Chamber granted an application and allowed
Counsel an additional five days to prepare Norman’s evidence and fixed
the
24th of January, 2006 as the date for the commencement
of Norman’s testimony before the Court;


MINDFUL OF the fact that the Prosecution objected to the present
Motion for the reasons of having had no warning of this application, and
essentially
for the following reasons: a) that the application is without merit;
b) that it is highly damaging to the interests of the First
Accused; c) that the
Accused wants to be in a position of privilege and wants to be above the law; d)
that when a witness takes the
oath and goes into the witness stand to tell the
whole truth, he or she is not allowed to do it with the assistance, advice and
counselling
of others; e) that the Prosecution wants to protect the First
Accused from the suggestions that are being made that could seriously
damage his
credibility;


CONSIDERING that the present application is made out of time, as
Counsel for Norman has had extensive amount of time and latitude to prepare
for
his testimony and to bring an application of this nature since the date for the
commencement of the defence case was set on the
21st of
October, 2005;


CONSIDERING that The Chamber has already granted an extension of five
additional days to Counsel for Norman to enable him to prepare the testimony
of
his client;


MINDFUL OF the fact that granting this Motion might occasion a breach
respectively of Article 17(4)(C) of the Statute of the Special Court and
of Rule
26bis of the Rules of Procedure and Evidence of the Special Court
(“Rules”) on the right of the Accused to be tried without
undue
delay and on ensuring the fairness and expeditiousness of the proceedings
against him;


MINDFUL OF the fact that the ICTY Kupreskic Decision emphasised
the following principle:


[P]ermitting either Party to communicate with a witness after he or she has
commenced his or her testimony may lead both witness and
Party, albeit
unwittingly, to discuss the content of the testimony already given and thereby
to influence or affect the witness’s
further testimony in ways which are
not consonant with the spirit of the Statute and Rules of the International
Tribunal[...][3]


MINDFUL OF the fact that the ICTY Kupreskic Decision was
endorsed and followed in the ICTY Kordic Decision in this regard;


CONSIDERING that once a witness has taken an oath or made an
affirmation and commenced testifying, the Prosecution and Defence must not
communicate
with the witness on the content of the witness’s testimony
except with leave of the Chamber and that this Rule applies to the
testimony of
the Accused;


PURSUANT TO Rule 90(F) of the Rules, which states that:


The Trial Chamber shall exercise control over the mode and order of
interrogating witnesses and presenting evidence so as to:

(i) Make the interrogation and presentation effective for the ascertainment of
the truth; and

(ii) Avoid the wasting of time.

THE CHAMBER DISMISSES the Motion as being meretricious
and REITERATES its Oral Decision of the 24th of
January, 2006.


Done in Freetown, Sierra Leone, this 16th day of
February, 2006



Hon. Justice Benjamin Mutanga Itoe

Hon. Justice Pierre Boutet
Presiding Judge,
Trial
Chamber I

Hon. Justice Bankole Thompson


[Seal of the Special Court for Sierra Leone]


[1] Transcript of the
24th of January, 2006, pp.
41-42.
[2] Transcript
of the 11th of January, 2006, pp.
55-56.
[3]
Prosecutor v. Dario Kordic and Mario Cerkez, Case No. ICTY Case No.
IT-95-14/2, Decision on Prosecutor’s Motion on Trial Procedure, 19 March
1999; see also Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko
Kupreskic, Drago Josipovic, Dragan Papic, Vladimir Santic
, ICTY Case No.
IT-96-16, Decision on Communications Between the Parties and Their Witnesses, 21
September 1998.