Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Friday, 7 February 2003

 2                          [Status Conference]

 3                          [Open session]

 4                          [The appellants entered court]

 5                          --- Upon commencing at 2:15 p.m.

 6            JUDGE HUNT:  Call the case, please.

 7            THE REGISTRAR:  Good afternoon, Your Honour, case number

 8    IT-95-14/2-A, the Prosecutor versus Dario Kordic and Mario Cerkez.

 9            JUDGE HUNT:  Appearances, please.

10            MR. FARRELL:  Good afternoon, Your Honour, appearing for the

11    Prosecution is Norman Farrell, Ms. Michelle Jarvis and Ms. Nicky Bonfield.

12    Thank you.

13            JUDGE HUNT:  Thank you.

14            For the accused.

15            MR. NAUMOVSKI: [Interpretation] Good afternoon, Your Honour,

16    appearing for Mr. Dario Kordic, attorney at law, Mitko Naumovski from

17    Zagreb.

18            JUDGE HUNT:  Thank you, Mr. Naumovski.

19            For Mr. Cerkez.

20            MR. KOVACIC:  Good afternoon, Your Honour, appearing for Mario

21    Cerkez, Bozidar Kovacic and Goran Mikulicic.

22            JUDGE HUNT:  Thank you.

23            Are the two appellants able to hear the proceedings in a language

24    which they can understand?  General Kordic?

25            THE APPELLANT KORDIC:  [Interpretation] Thank you, Your Honour, I

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 1    can.

 2            JUDGE HUNT:  Mr. Cerkez.

 3            THE APPELLANT CERKEZ:  [Interpretation] Yes, Your Honour, I can.

 4            JUDGE HUNT:  Thank you.  Sit down, please.

 5            This is a Status Conference being held in accordance with Rule 65

 6    bis and in order to comply with it it had to be held this week.

 7            Mr. Farrell, are there any matters which the Prosecution want to

 8    raise?

 9            MR. FARRELL:  No, Your Honour, I think matters that the

10    Prosecution can advise the court of were in the status report filed, I

11    guess, a couple of days ago other than that there's nothing additional,

12    thank you.

13            JUDGE HUNT:  We've just been handed as we came into court some

14    motion of yours.

15            MR. FARRELL:  It's technically in this case is that regarding the

16    Hadzihasanovic access to the Kordic material.

17            JUDGE HUNT:  Well, it's a -- as I understand, you are seeking

18    protective measures and that is -- I haven't even seen it myself yet.

19    I've just been told that it's there.  The usual gremlin got into the works

20    and the judges got theirs -- well, I still haven't got mine.

21            MR. FARRELL:  I apologise for that I mean it's -- yeah, it was

22    filed yesterday.

23            JUDGE HUNT:  It was filed yesterday but I think we've been through

24    this before.  It's best to do it two days before because for some reason

25    it's always the judges who are picked on.

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 1            MR. FARRELL:  My apologies.  The actual document that I think you

 2    have been deprived of is a motion for clarification regarding

 3    Hadzihasanovic's access to and for protective measures.

 4            JUDGE HUNT:  Is there something that is not clear in the order?

 5    What needs to be clarified.

 6            MR. FARRELL:  Well, there's two issues if you'd like me to

 7    indicate what they are.  The request itself appears -- may have misread

 8    the request by the applicant Hadzihasanovic for -- what appear to be from

 9    the request exhibits and transcripts, it appears they want basically

10    evidence.  There's one or two what I would consider to be rather general

11    or vague references to non-public material.

12            JUDGE HUNT:  I'm concerned about your application for what you

13    call clarification.  It's seems to me what you are really asking for, if

14    you are prepared to face up to it, is a reconsideration of something.

15            MR. FARRELL:  Well, I'll allow you to read it in full, but the two

16    issues of clarification are the scope of the order which is simply:  Are

17    you requiring us to file and disclose ex parte material because that's not

18    addressed in their request but it is within the scope of all non-public

19    material.  That's the clarification issue.

20            The second clarification issue -- sorry.  The first clarification

21    issue is whether it applies to filings, pleadings, not evidence.  My

22    reading of their request is for evidence, not pleadings, but the order

23    says all non-public documents.  So the first clarification, does it apply

24    to pleadings?  Second clarification, does it apply to ex parte documents

25    that even the Defence in Kordic and Cerkez didn't have.  That's not

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 1    addressed by them nor requested by them and not -- in my respectful,

 2    submission addressed by the order.

 3            JUDGE HUNT:  And is this a matter which you raise in your response

 4    to their application?

 5            MR. FARRELL:  No.  Because our response to their application was

 6    whether or not they met the relevancy criteria.  I mean, maybe we're at

 7    fault for not doing so, but at that point in time the issue was with the

 8    relevancy criteria, as I understand.

 9            JUDGE HUNT:  You see, many years ago in its infancy there was some

10    very, what might be called, conservative decisions by the Tribunal that

11    they would never reconsider something.  That's been well and truly

12    overcome now and common sense has finally found its way forward and

13    Tribunal -- Trial Chambers and the Appeals Chamber would always reconsider

14    something if it is shown to be necessary.  The Prosecution used to use

15    this word "clarification," in order to get around what used to be the old

16    conservative approach.

17            MR. FARRELL:  I --

18            JUDGE HUNT:  That's why the word rang a bell with me.

19            MR. FARRELL:  No.  That's quite all right.  If you read the -- if

20    you read the two aspects for which we've sought clarification as a

21    reconsideration and if we've misread the order, I'd be happy to ask for

22    reconsideration.  I think, in my respectful submission, that the order

23    doesn't address those two issues of filings and ex parte filings before

24    the Trial Chamber and we're not asked by Hadzihasanovic so if the order

25    encompasses those, we'll certainly comply with them.

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 1            There are additional issues in filing which is probably actually

 2    more germane to your comment right now, not the ex parte.  The other ones

 3    relate to access to Rule 70 material.  That, you may consider to be

 4    something equivalent to a reconsideration request and I'll just explain to

 5    you what's in the order if you wish.

 6            JUDGE HUNT:  Well, I haven't got the order in front of me.

 7            MR. FARRELL:  I'm sorry.

 8            JUDGE HUNT:  It's all right, but -- was there no reference to

 9    other than Rule 70 material?

10            MR. FARRELL:  No.  The issue on Rule 70 material isn't

11    particularly of concern, it's just the provision of the Rule 70 material.

12    The order indicated that the Prosecutor was to seek the consent of the

13    Rule 70 providers and then to provide it to the applicants.  We simply

14    asked, and maybe it is akin to a reconsideration, but the Prosecution

15    submits that we would be happy to identify, seek the consent and identify

16    the material but just thought that it should come from the Registry not

17    from the Prosecution, that we would identify the material so it comes

18    actually from the trial record with the proper Court Registry numbers on

19    it.

20            JUDGE HUNT:  I'm sorry.  You mean the word "supply" appears to --

21    appear to apply to you.

22            MR. FARRELL:  Yes.  And We may have misread it, but that was one

23    of the -- that the issue under Rule 70 is just that do we give notice to

24    the Registry or do you wish that the Prosecution provides it directly to

25    the applicants?

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 1            JUDGE HUNT:  I wouldn't have thought so.

 2            MR. FARRELL:  Well, we may not be too far off base then.

 3            And then there are -- there is a third area which is a request for

 4    protective measures.  And in the request for protective measures, we

 5    request that the Court inform us of the procedure to follow if the

 6    protective measures, which include redactions, are granted.

 7            JUDGE HUNT:  Yes.

 8            All right.  Well, then, that's a matter that we can deal with

 9    later.  I just wanted to clear up what it was you were after.

10            MR. FARRELL:  Absolutely.

11            JUDGE HUNT:  Is there nothing else you want to raise?

12            MR. FARRELL:  The -- nothing except for that that document that

13    was filed obviously you haven't received.  I'm hopeful that you received

14    the short status report.

15            JUDGE HUNT:  We did get that, yes.

16            MR. FARRELL:  Okay.  Great.  No, other than that, Your Honour,

17    thank you.

18            JUDGE HUNT:  That's because it was filed two days in advance.

19            MR. FARRELL:  Correct.  Thank you.

20            JUDGE HUNT:  All right.  Mr. Naumovski, any matters you want to

21    raise?

22            MR. NAUMOVSKI: [Interpretation] Your Honour, generally speaking,

23    we have nothing to raise.  In our latest submissions, we reported on the

24    status of the case and we took the liberty of asking the Court to

25    designate the hearing date for 115 -- Rule 115 submissions.

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 1            At this point, it is difficult for counsel to decide what the best

 2    course of action is.  Every counsel's duty is to review the course of

 3    proceedings because it may be relevant to the stage of appeal at which we

 4    are, so we have the obligation of working continuously.

 5            JUDGE HUNT:  Just one moment before you get to the 115 materials,

 6    that's quite separate.  You have also filed a further matter in the

 7    Hadzihasanovic case seeking redactions in relation to a number of

 8    witnesses.  Your only statement is that the witnesses themselves have

 9    expressed concern.  That's not a sufficient basis for getting some sort of

10    protection for them and you'll find there's a number of cases on the

11    books, in the books which say that something more must be shown than the

12    fears expressed by the witnesses themselves.  You have to demonstrate

13    something objective which shows that those fears have at least some basis

14    so you may like to improve upon your application there before we can grant

15    the redactions which you seek.

16            Now, in relation to the 115 matters, we might as well deal with

17    that now.  I realise that this appeal is proceeding under the old Rule 115

18    because of the provisions of Rule 7, I think it is, which says that if

19    there's something to your detriment, you are not affected by the

20    amendments to the Rule.  But you do realise, of course, that even under

21    the old Rule which allows you to file 115 motions up to 15 days before the

22    hearing of the appeal, the Chambers do have a -- the Appeals Chamber does

23    have a power to vary those times.  And if there's one thing we've learnt

24    and which brought about the amendment to the Rule that it is absolutely

25    hopeless to try and hear an appeal 15 days after applications have been

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 1    made to tender additional evidence.

 2            What we propose to do will be to make an order that you file your

 3    Rule 115 a certain time after the last delivery by the Prosecution of the

 4    material to you and we'll fix a time table and then when we see how the

 5    time table is going, we'll fix a hearing date of the appeal, and it will,

 6    of course, be a lot more than 15 days.  But what concerns me particularly

 7    is your suggestion that you should wait quite an extraordinary length of

 8    time, if I can find your document, before filing your consolidated Rule

 9    115 motion.

10            I'm afraid you're not going to be given that sort of time, I think

11    it was a month.  What you've got to realise is that you've had these

12    documents for years, most of them, taking out some of the figures that the

13    Prosecution have provided us in its status report, you had, during the

14    course of the year 2001, 1.394 documents.  During the year 2002, you got

15    another 1.734 documents.  So far you've only had three documents this

16    year.

17            Now, you are expected to be working on your 115 application and to

18    have been working on it since year 2001.  You can't sit back and say,

19    "Well, after we've got the final lot of documents, we'll start work on

20    our motion."  And depending upon what Mr. Farrell tells us about what he

21    anticipates or the size or the number of documents that he anticipates

22    will be given to you at the end of this month, you're going to get a very

23    brief time indeed to get your Rule 115 motion on, something like 7 days, I

24    would expect because, as I say, that depends upon what Mr. Farrell tells

25    us.  But we're not going to have this very slow procedure timetable that

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 1    both parties seem to be anticipating here.

 2            If we accepted your time table, I'm afraid this case could -- the

 3    appeal could not be heard before summer and that's just absurd.  We had

 4    hoped to be hearing it next month sometime.  Obviously that's no longer

 5    possible but it is going to be a lot speedier timetable than you -- than

 6    either side has produced for us to consider.

 7            So you have to understand that you're not going to be given the

 8    time you seek, and it may be, indeed, considerably shorter.  But anyway,

 9    you then want to say something about the Rule 115 motion generally so you

10    proceed, Mr. Naumovski.

11            MR. NAUMOVSKI: [Interpretation] Your Honour, I have to say I am

12    very glad to hear what you've just said.  When we were working on these

13    dates, I was afraid that even this is too soon.  Moreover, from the point

14    of view of the Defence of Mr. Kordic, we would be glad to seek these dates

15    even sooner.  When we were looking at this date of filing the possible

16    Rule 115 motion, I had in mind what Mr. Farrell said about reviewing

17    several thousand new documents and I was expecting to receive thousands of

18    new documents and I didn't know whether we would be able to review them in

19    due time.

20            However, if the volume of these documents is going to be

21    significantly lower, then of course the time for their review and

22    assessment is considerably shorter.  We are now looking forward to you

23    setting the date for the hearing of this appeal and, of course, we will

24    have reviewed the material by the end of this month.

25            If you allow me just a word about the topic we raised a moment ago

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 1    regarding witnesses.  Your Honour, I have to say that the Defence of

 2    Mr. Kordic merely presented the position of witnesses in its filing.  We

 3    did not elaborate on the reasons, we just asked the witnesses what their

 4    opinion was and we presented their views in our submission.  I understand

 5    that this may not be sufficient for the Trial Chamber to grant the

 6    protective measures but I thought it was my duty as Defence counsel to

 7    convey what the Defence witnesses were looking for.  That was the purpose

 8    of my filing.

 9            If you have no more questions to address to me, I would like to

10    mention in passing that the beginning of the record, there is an error in

11    so far as the -- Mr. Kordic is named as General.  He is not a General, he

12    is merely a civilian.  That's page 1, line 24.  I understand that this

13    error is made just because there are too many cases going on.

14            JUDGE HUNT:  Okay.  Thank you very much, Mr. Naumovski.  It was my

15    fault.

16            Thank you.  Is there anything else you want to add?

17            MR. NAUMOVSKI: [Interpretation] I do not think so, Your Honour.  I

18    am very much encouraged by what you just said about the hearing date being

19    very soon.  Thank you very much.

20            JUDGE HUNT:  Thank you.  Mr. Kovacic, do you want to say anything?

21            MR. KOVACIC:  [Interpretation] Your Honour, I don't think we have

22    much to add.  I would just like to remind Your Honour that we have before

23    us two very similar proposals about the expected course of proceedings

24    regarding the filing of Rule 115 motions and the subsequent conference.

25    The Prosecution gave its views and the Defence presented its views and I

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 1    don't see major discrepancies.  At your initiative, we have discussed the

 2    possible time frame within which the Defence could file its 115 motions,

 3    it was last year, I believe before the summer, and at that time, you asked

 4    us to give our assessment.  We said 40 to 60 days after finalisation of

 5    disclosure by the Prosecution.  However you reiterated this today.

 6    Obviously we have received much of the material and we have reviewed it

 7    and prepared.  A certain volume remains outstanding, I don't believe it is

 8    large, and based on our experience of previous packages of material,

 9    sometimes smaller packages of material required much more research than

10    large ones simply because the topics in question were not so interesting.

11            The Defence singled out material which was the most relevant,

12    reviewed it and prepared.  This is continuous work and sometimes we

13    receive new material, replace something that we had prepared before and

14    generally speaking, I believe we will be ready with this in due time.

15            We are anxious to see speedy unhindered and expeditious

16    proceedings which ever option the Court designates, we will abide by it.

17    My only request to Your Honour would be the following, to be cautious

18    about this.  So far we have basically wasted two years until now, that's

19    nobody's fault.  Now archives have been opened in Croatia and in Bosnia

20    that were not available before, new material has become available and we

21    have asked access to certain material from other cases just as the other

22    Defence has done so in our case.  There are objective reasons why this

23    procedure took a long time.

24            When I say that we "wasted," so much time, I mean to say that it

25    is -- it makes no sense to make an issue of a month here or there.

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 1    Instead, it is up to us to set the time for making a certain filing.  As

 2    my colleague, Mr. Naumovski, said, it is our duty to follow other

 3    proceedings and look for any material which would be useful to us.

 4            The Prosecutor announced that they have a package of new material

 5    which we now know that will be processed and made available to us by the

 6    end of this month so our dilemma is resolved.  After receiving this

 7    material, we will review it and finalise our 115 submission.  Depending on

 8    the quantity and content of the material, I cannot promise that we will do

 9    this work within 7 days because I don't know whether it's going to be 50

10    or 500 pages.

11            Another thing I would like Your Honour to bear in mind is this:

12    Although we, according to the Rules, have the right to prepare our

13    submission in our language, we draft it in English to save time and

14    technically, it needs to be revised and this revision takes another two or

15    three days.  So when you say that the time allowed is 7 days, that means

16    for us, that these 7 days have to include a couple of days for revision.

17    Thank you.

18            JUDGE HUNT:  Well, Mr. Kovacic, you do not have a right to prepare

19    your submissions in your own language.  You know what the rules are.  You

20    are required to have a working knowledge of either English or French and

21    you are obliged to produce your documents in that language.  I understand

22    that you probably prefer to do them in your own language first, but the

23    rules are there to prevent this sort of time being taken up.

24            However, what you say about your duties, as Mr. Naumovski has

25    said, are matters of importance and they will be recognised.  What I am

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 1    concerned about is that the submissions that were made appeared to proceed

 2    upon the basis that you were allowed to wait until you got everything

 3    before you started work.  I'm very gratified to hear from each of you that

 4    you are in fact well ahead and that you have not been waiting until

 5    everything arrives before you started work on this application.  But the

 6    point I sought to make and I reiterate it is this:  That the time that you

 7    will be given for filing your Rule 115 application will depend solely upon

 8    the size of what is delivered by the Prosecution between now and then and

 9    I will be asking Mr. Farrell to give us some enlightenment about that in a

10    moment.

11            Also, that any order that we make will have an express provision

12    that you will have liberty to apply for an alteration in an informal

13    manner so that we don't have to go through motions and responses and

14    replies, et cetera and if you are running into a genuine problem because

15    of what has been supplied, then we will obviously listen to what you have

16    to say and extensions will be granted.  That's why we're not going to fix

17    an appeal date straight away.  It would be absurd to have everybody

18    setting aside time for a hearing which may very well be interfered with

19    because of something that arises during this rather long process.

20            So you will have a safety valve, but I think the time has come to

21    ask Mr. Farrell to disclose to us a little bit more about what is coming

22    by the end of this month.

23            Is there anything else you want to add?

24            MR. KOVACIC:  Your Honour, it seems that there was a slight

25    miscommunication, probably for the reasons of translation.  When I

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 1    mentioned the issue of language and translation, it was not a matter of

 2    asking special benefit or a position in which we would file on Croatian

 3    language.  My point was -- and actually we are preparing all the briefs

 4    and motions originally in English language.  What I'm merely trying to

 5    say, of course, that is not our mother tongue as you can notice from my

 6    bad English.  So it does require a certain time for English editing.  That

 7    is all.  I'm merely trying to say when you order something to be done in

 8    seven days, it is fine with us; however, there is a certain advantage

 9    let's say far the Prosecution since in that office, almost everybody is

10    speaking this language as a mother tongue.  For us, it is additional two

11    or three days work.  Nothing else, of course.

12            JUDGE HUNT:  I'm afraid, Mr. Kovacic, if you set out by speaking

13    in English to disclose to us your bad English, you have failed.  You spoke

14    very well indeed.

15            MR. KOVACIC:  But not in writing, Your Honour.

16            JUDGE HUNT:  I can assure you that coming as I do from the other

17    side of the world, I'm told that English is not my mother language either,

18    we speak a type of English, that's all.  But thank you very much, indeed.

19            MR. KOVACIC:  Thank you, Your Honour.

20            JUDGE HUNT:

21            Well, now, Mr. Farrell, there are two things I think which arise

22    here.  First, we would like to have some estimate of what's coming and the

23    other is, is there any problem with you disclosing this material on a

24    rolling basis, as it were?  Because that would assist the accused and us

25    and you and everybody to get on with this matter.

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 1            MR. FARRELL:  Regarding your second request, absolutely not.  The

 2    way we've been dealing with it is we do a -- without wasting your time

 3    explaining we do an initial cut of all the material.  There were 45

 4    binders.  We do an initial cut of relevance, anything that looks like it

 5    might be directly relevant and then after that we proceed through -- we're

 6    starting to proceed through the second phase.  We've already gone through

 7    the 45 binders and removed all the irrelevant material and that was done

 8    initially and I and others are involved in the second stage.  No problem

 9    whatsoever with getting out whatever we can get on a rolling basis,

10    absolutely, and we'll undertake to do that the beginning of next week with

11    the first cut.  We're going through now of the second set -- second

12    review, I mean.

13            Regarding the volume, I'm not sure I can be much of assistance and

14    I apologise.  We had this discussion with other members in the Appeals

15    Section, and since we actually haven't gotten through about half of the

16    remaining 20 or 25 binders for a review of where they fall under Rule 68,

17    I can't say at this point the volume.  I don't think it will be that

18    great.  We've actually cut out quite a few and in comparison to what we

19    have reviewed under the more strict second Rule 68 review, it hasn't been

20    very voluminous at all.  In light of my inability to inform you of that, I

21    can, if you wish, propose to file a notice at the point in time of

22    disclosure to the Defence with the Court to inform them of the actual

23    volume of documents disclosed upon their being, of course, disclosed of

24    the date the Defence receives them so that the Court is fully aware and

25    won't have to wait until whatever time frame, until you're informed.

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 1            JUDGE HUNT:  Well, what is the best procedure then?  Should we

 2    start on a scheduling order now or should we wait until we hear from you

 3    when you're further into your task.

 4            MR. FARRELL:  I think it would probably be advisable to wait.

 5    We'll at that point be in a better position to tell you the volume and I

 6    can also file a notice with the Court when full disclosure has been

 7    completed so at that point, the Court will be in a better position to know

 8    the volume and the completion date.

 9            JUDGE HUNT:  But what I want to do is to have the matter dealt

10    with so far as we can by some form of agreement when the parties say,

11    "Well we've seen the documents now.  We think we're going to need so much

12    time," and we'll consider that as a relevant factor.  I'm not saying we'll

13    be bound by it, but I would prefer that we get some form of agreement

14    before the orders are made then we have to keep on changing them as the

15    case proceeds but we will clearly have to have some informal procedure for

16    seeking alterations to it.  The filing of motions and responses and

17    replies in relation to such simple matters strikes to me as a very

18    American way of doing things but not a very efficient way.  So that's what

19    we'll -- the way we'll go about it.

20            Can I at least prevail upon you to say that we might get something

21    by, say, the end of next week or the beginning of the week afterwards as

22    to how you're going?

23            MR. FARRELL:  Absolutely.

24            JUDGE HUNT:  And what your anticipation is at that stage.

25            MR. FARRELL:  Of course, Your Honour.

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 1            JUDGE HUNT:  Okay.  Well, then we'll look forward with interest to

 2    reading your application for clarification and see what needs to be

 3    clarified.

 4            MR. FARRELL:  If anything at all, Your Honour.

 5            JUDGE HUNT:  The problem with these enormous number of

 6    applications for access is that you tend to look at them all in the same

 7    way and they're not always the same.  And although I thought we'd got

 8    ourselves down to a fairly regular form of order, it may be that it might

 9    have been given too hastily, I don't know.

10            MR. FARRELL:  I'm not insinuating that at all, Your Honour.  Thank

11    you.

12            JUDGE HUNT:  But we do rely upon the Prosecution to draw our

13    attention to its concerns when they are putting in their response, and if

14    you see that the matter is more limited than usual, we hope that you will

15    give some attention to that in your response.

16            MR. FARRELL:  I will endeavour to do so.

17            JUDGE HUNT:  All right.  Well, is there anything else that anybody

18    wants to raise?

19            MR. FARRELL:  Not from the Prosecution side, thank you.

20            JUDGE HUNT:  From the Defence side?   Well, thank you very much.

21    I rather suspect that we will be seeing you here again on another Status

22    Conference before the hearing of the appeal at the rate we're going but

23    hopefully not.  And if so, then we shall see you next at the hearing of

24    the appeal.  Thank you.

25                          --- Whereupon the Status Conference

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 1                          adjourned at 2:50 p.m.