1 Monday, 23 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 [Trial Chamber and registrar confer]
6 JUDGE ROBINSON: Yes. Before we begin, the court deputy has a
7 few words to say.
8 THE REGISTRAR: Good afternoon, Your Honours. With regards to
9 Exhibit P31 marked by Mr. McCoy and admitted on 20th of March, I'm
10 referring to transcript page 5808, line 17, the exhibit becomes P301.
11 JUDGE ROBINSON: Now, tomorrow --
12 MR. GROOME: Your Honour, just on that, if you recall that
13 indicates the residence of a protected witness. Could I ask that exhibit
14 be placed under seal.
15 JUDGE ROBINSON: Yes.
16 THE REGISTRAR: The Exhibit P301 under seal, Your Honours.
17 JUDGE ROBINSON: Tomorrow there's a plenary scheduled from 12.30
18 to 2.30, and we would normally begin at 2.15. So I want the parties to
19 be ready for 2.45 unless they are otherwise advised.
20 Mr. Alarid, you wanted to say something.
21 MR. ALARID: Yes, Your Honour. Okay. Well, I kind of just
22 wanted to sort of update the Court from a housekeeping perspective, and
23 really, I ask the Court's guidance in terms of the schedule that was
24 handed down last week and our ability to meet the expectations of the
25 Court but also realistically touch on some things, including -- I think
1 the Court's probably aware the Prosecution filed a 14-person rebuttal
2 list that I haven't read yet, but you know, of course needs be addressed.
3 Here's my situation, is we have Mr. Ben Dimas scheduled today,
4 and I think realistically considering he was the supervisor with
5 Mr. Martin McCoy taking a hair over the day's session, I don't think it's
6 unreasonable to think that Mr. Dimas won't as well. And then we have
7 scheduled Dr. George Hough, and he touches on both the psychoanalyst of
8 the accused as well as does some witness commentary on three
9 case-specific situations. So I don't think that it's unrealistic that
10 he's going to take two days.
11 JUDGE ROBINSON: What days are those?
12 MR. ALARID: I'm thinking that Dr. Hough will start let's say as
13 early as mid-tomorrow but realistically even possibly on Wednesday
14 morning. And then if he takes -- if I take a day and Mr. Groome takes
15 the next session or the better part of it, then obviously we're
16 already --
17 JUDGE ROBINSON: If you take a day?
18 MR. ALARID: Well, only because there's four components and one
19 is kind of a lengthy one, and you know there was some controversy over
20 Milan Lukic's report; and so, I mean, just laying the groundwork for the
21 time spent, the 24 hours in sessions and the actual testing and the
22 conclusions, just giving everyone the breaks and going slow it's going to
23 take a while. And so realistically -- and then he comments on VG-115,
24 63, and 114, and so from that standpoint, even if we only give 20 minutes
25 touching on all three that's going to eat up the first day; and then the
1 Prosecution's going to have their turn. We slated Ewa Tabeau coming
2 back, and I'm not sure how you want to -- I'm willing to do it any way
3 the Court stands, is there's any report sitting there as an addendum to
4 her earlier P119. Do we call her as a Prosecution witness with me
5 stipulating and then we do it in regular order or out of order because
6 she's so important right mow with the death list and the proof of death
7 being at issue; or do I just call her and that's fine? And so do I
8 call -- and so then I was planning on calling Ewa Tabeau right after
9 Dr. Hough. Now --
10 JUDGE ROBINSON: On Wednesday?
11 MR. ALARID: Yes. Now, here's what concerns me, is --
12 Mr. Groome, please remind me. Did you have a witness that you needed to
13 take out of order at the end of the week?
14 MR. GROOME: I believe there is a witness, Your Honour, but I
15 think that may have changed. I think he actually may have some
16 flexibility now. I can check that and report to the Chamber at the first
18 MR. ALARID: I was thinking if we had to squeeze that in, that's
19 another situation, and then Vlade Rasic we're trying to get in for the
20 morning session on Friday, because he needed a morning session, so it
21 seemed like a perfect opportunity to bring him in if we can get him in
22 here Thursday afternoon, evening, and then have him on the stand first
23 thing Friday morning. So that leaves -- the only witness I have left
24 after that is Mr. Cliff Jenkins. He's the former deputy police chief,
25 and his goes into the investigative nature of the case.
1 And so that's all I have left, but then we have outstanding three
2 subpoenas of which we've done personal service as well as going through
3 the national channels, trying to get cooperation, and they could be very
4 short; but we still haven't gotten confirmation. We were able to get the
5 personal data for some of the -- two of the remaining ones that we did
6 not, and that is with the government of Bosnia and Serbia
8 in short order, we get some answers on that.
9 But just thinking of that, here's my real issue, Your Honour, is
10 I need to be back home April 6th basically, and the reason being, is -
11 and I brought copies of my calendar - my father's been in the hospital
12 for the last week with a -- a blood disorder that's keeping his O2
13 saturation down. So, for instance, at night he goes down to 70. My
14 father's 62, and he was covering as much of my practice as I couldn't
15 postpone and/or have friends cover, but most dispositive things remain
16 pending for me. Well, just looking at my calendar, for instance, I have
17 two jury trials on misdemeanor matters set for Monday, April 6th; and so
18 from that standpoint my father would be wheeling in an oxygen if he's
19 been we leased to even do that much at this point.
20 I don't know how deep we'll be into the Prosecution's case, let's
21 say, if I were to leave and Mr. Ivetic were to be covering some of the
22 rebuttal case, if you will; the one caveat I'm worried about,
23 Your Honour, is those three witnesses that were part of the confidential
24 matters. I don't think it's appropriate for Mr. Ivetic to conduct the
25 cross-examination just with regards to the outstanding issues. So
1 from -- and from that standpoint, I don't know if we'll get into them
2 either before the end of next week, if we call them -- if I were the ones
3 to call them, let's say, which gets them out of the way early; although I
4 would propose they come in also under confidential session, and I was --
5 I'm still entertaining the issues of conflict because as the Court
6 suggested, I do call Ms. Rasic as a witness? Well, the problem is that
7 she's already been interviewed, and I have a motion for protective order
8 that's been outstanding; and she's been interviewed as an accused and has
9 an attorney of record, and so I've got already some problems with the
10 confidentiality issues with the team, but also she's a represented party
11 at this point.
12 JUDGE ROBINSON: You should have filed the witnesses that you
13 wanted to call by last Friday and --
14 MR. ALARID: Well, I think we have everyone we have and -- well
15 no. In terms of -- I don't want to call anybody, to be honest. I
16 haven't even thought a rejoinder. I'm looking at just get the people we
17 have in line done and then, okay, there's this outstanding issue of the
18 relevance of the other matter. How do we inject that in? Do we inject
19 it as part of my case? Do we inject it as part of the rebuttal case? My
20 fear is if I have to go cover things a bit into the Easter break and get
21 my practice back in order, like, for instance, Your Honour, and I don't
22 know how I was going to resolve this, if we put on Dr. Hough tomorrow and
23 let's say we start him, I have a CLE
24 here, which is 9.00 a.m.
25 to be taking a CLE
1 JUDGE ROBINSON: What is a CLE.
2 MR. ALARID: Continuing legal education. In order to keep my
3 license current, I must take 12 hours a year plus 3 hours of ethics and
4 professionalism. I thought about moving to waive considering learning
5 this law -- this has been a legal experience in and of itself, but I'm
6 scheduled to take this CLE
7 Dr. Hough mode and Mr. Dimas was done, that was a quandary for me.
8 And my dead-line for completing all CLE is March 31st of this
9 year, but I will be completed as of the CLE of tomorrow. I've been
10 taking them on-line as I've been here.
11 JUDGE ROBINSON: Well, Mr. Alarid, you have given us a litany, a
12 host of present problems. We'll look at them. Of course, your
13 fundamental obligation is to the case that you are doing here. That's
14 the view which the Chamber will --
15 MR. ALARID: Absolutely, Judge. Absolutely. But I hope you'll
16 see if I were to put as an addendum to a motion my calendar, you would
17 see the same names popping up on my calendar over and over again, and
18 there's been so many people that have deferred to the Court; and you
19 know, I need a week's time, but with my father's situation, I don't have
20 many alternatives. It's really --
21 JUDGE ROBINSON: I definitely do not want to have the evidence
22 part of the case carrying over beyond the break.
23 MR. ALARID: No, I don't particularly want that as well,
24 Your Honour. Nobody wants to go home worse than me, to be honest, right
25 now, Your Honour, so I'm in a quandary personally, but there is
1 housekeeping and things need to get done.
2 JUDGE ROBINSON: We'll get back to the many issues that you have
4 Mr. Groome, there's a matter that I've been asked to bring to
5 your attention. It's the -- does this need to be in private session
6 or -- no. It's the oral motion that you made the last day that we met.
7 The issue is whether it's -- whether you want to have photographs of your
8 Prosecution witnesses to be put before the accused when he gives evidence
9 or photographs of his own witnesses as it came out in one part of the
10 transcript. I thought it was the former, but you can clarify it.
11 MR. GROOME: It is the former, Your Honour, and it's just
12 pictures of Prosecution witnesses.
13 JUDGE ROBINSON: Yes, that clarifies that.
14 MR. ALARID: Your Honour, may I? That just kind of struck a
15 chord in me. Assuming Mr. Lukic would testify, that is a different
16 animal, of course. Let's just assume for a moment Mr. Lukic testifies.
17 We're in constant negotiations, and I'll tell you, he wants to. Okay.
18 But --
19 JUDGE ROBINSON: Well, I thought you had indicated
20 definitively --
21 MR. ALARID: So here's the quandary, is I'm assuming with the
22 areas and topics to be covered and anticipated cross-examination, if you
23 think -- I thought it was 21 hours Mitar had testified, but Mr. Weber
24 said it was 51 when he was crossing -- but I figure we'd have a week is
25 what I figured, a week on the stand. Between cross-examination and
1 direct examination, would Mr. Lukic take a week? That's not outside the
2 realm of possibility?
3 JUDGE ROBINSON: Why should we take a week? What are we talking
5 MR. ALARID: I'm with you on that one, but I'm just saying. It
6 could. There's a lot of topics to be covered.
7 JUDGE ROBINSON: A day and a half at the most, a day and a
9 MR. ALARID: I just need at least the equivalent if not a little
10 bit more time to proof my client because we have not had that sort of
11 focussed proofing session where you actually prepare someone to testify,
12 and so that has to be interjected into the schedule.
13 JUDGE ROBINSON: Yes, but you can't -- what I will not allow you
14 to do is to keep deferring a decision as to whether he will testify and
15 then you come to me and say, Oh, this is Monday, we have decided that
16 he's going to testify tomorrow; and therefore, I need time to proof him.
17 You must determine those things from long before, Mr. Alarid.
18 MR. ALARID: And the interesting thing, though, is sometimes when
19 I've quandaried that with other clients, it's when you actually put to
20 them the cross-examination in the proofing when you are preparing that
21 they make the final decision because --
22 JUDGE ROBINSON: In fact, I would advise you to proof him in the
23 event that he likes to testify.
24 MR. ALARID: Yes, Your Honour, but as long as we're putting on
25 other witnesses, the time to visit in gaol is diminished. That's why --
1 you're either proofing witnesses that are on the stand today or you're at
2 the gaol, so it does need -- and we're not allowed --
3 JUDGE ROBINSON: We can't spend the rest of the afternoon talking
4 about --
5 MR. ALARID: We're not allowed to go into the gaol on the
6 weekends. If the Court could order it, that would be wonderful.
7 JUDGE ROBINSON: Very well. That's another matter.
8 The next witness, please.
9 MR. IVETIC: Next witness is Benjamin Dimas, Your Honours.
10 [The witness entered court]
11 JUDGE ROBINSON: Let the witness make the declaration.
12 THE WITNESS: [Interpretation] I do solemnly declare that I will
13 speak the truth, the whole truth and nothing but the truth.
14 WITNESS: BENJAMIN DIMAS
15 JUDGE ROBINSON: You may sit, and you may begin, Mr. Ivetic.
16 MR. IVETIC: Thank you, Your Honours.
17 Examination by Mr. Ivetic:
18 Q. Good day, Mr. Dimas. As you know, my name a Dan Ivetic, and I'm
19 one of the counsel for Milan Lukic in these proceedings, and it's my task
20 to ask you some questions today to have you assist us in questions that
21 arise out of your are of expertise in the investigations that you
23 First of all, sir, one reminder before we start with the
24 questions, since we're both speaking the same language, English, and
25 since everything has to be translated into multiple languages and a
1 written transcript produced, I would ask that you try to pause between my
2 question and giving your answer, and I will also try avoid overlapping of
3 the two of us talking so that everything can be properly recorded. Is
4 that fair enough, sir?
5 A. Yes, it is.
6 Q. Thank you. Now, could you --
7 MR. IVETIC: And in true form, I ignored my own advice right at
8 the get-go.
9 Q. Sir, could you would state your full name for the record and
10 spell same.
11 A. It's Benjamin Kenneth Dimas. B-e-n-j-a-m-i-n; middle name,
12 Kenneth, K-e-n-n-e-t-h; Dimas, D-i-m-a-s.
13 Q. Thank you, sir, and could you also tell us a little bit about
14 yourself, just basically where it is that you currently reside.
15 A. I live in Albuquerque, New Mexico.
16 Q. Thank you, sir, and when is it that you were born?
17 A. I was born on the 16th of November, 1962.
18 Q. Now, I'd like to just very briefly have you give us a summary of
19 your educational background; first of all, what can you tell us about
20 high school?
21 A. I graduated from Cibola High School in Albuquerque, New Mexico,
22 and I graduated in 1980.
23 Q. And we'll be looking at your CV later, shortly, but I understand
24 that you started learning skills and working in areas relate to your
25 current occupation at a very young age. Could you tell us about your
1 first experiences as a fireman. When and where was that?
2 A. When I had turned 16, I joined the local volunteer fire
3 department. That was the Albuquerque Fire Department, and there I just
4 basically learned basic fire-fighting operations during that time.
5 Q. And just one clarification. You indicated Albuquerque. Did you
6 mean Alameda
7 A. Actually, it was the Alameda Volunteer Fire Department, which was
8 in Bernalillo county within the city of Albuquerque, New Mexico
9 Q. Thank you.
10 MR. IVETIC: And I guess if we can have the CV brought up. I
11 believe that's 1D22-0686.
12 JUDGE ROBINSON: Mr. Ivetic.
13 MR. IVETIC: Yes.
14 JUDGE ROBINSON: I'd like to exhort you not to spend an overly
15 long time on the CV.
16 Mr. Groome, are you taking any particular point in relation to
17 the qualifications of this witness?
18 MR. GROOME: Your Honour, the same point that I took with
19 Mr. McCoy, and it doesn't necessarily necessitate us going through an
20 exhaustive exposition of Mr. Dimas's background. I have no question that
21 Mr. Dimas is a qualified fire investigator. I do contest as I did with
22 Mr. McCoy whether he has the experience necessary to make a determination
23 as to the cause of the fire damage he saw on Pionirska Street.
24 MR. IVETIC: And, Your Honours, I will be briefer than I was with
25 Mr. McCoy. I've tried to streamline my examination in that regard, but I
1 think it goes towards the issue that the Prosecution has now presented an
2 expert on this topic --
3 JUDGE ROBINSON: Just a minute, please.
4 MR. IVETIC: Yes.
5 [Trial Chamber and legal officer confer]
6 [Trial Chamber confers]
7 JUDGE ROBINSON: Mr. Groome, the Chamber has been considering
8 whether we need to hear this argument again because the data in relation
9 to Mr. Dimas has been sent to the Chamber. We have that already, as do
10 you. Do you have any particular questions that you wish to put to him,
11 and we will give a ruling on it so we can move to the matter.
12 MR. GROOME: Your Honour, his experience is comparable to
13 Mr. McCoy. I have no questions that I would put to him. I just would
14 not want to be here silent and the Court think that I'm somehow accepting
15 him as an expert. I would make the same objections that I made with
16 Mr. McCoy, and I trust the Chamber will make its ruling.
17 [Trial Chamber confers]
18 JUDGE ROBINSON: The Chamber accepts Mr. Dimas as an expert for
19 the purposes for which he has been called. So please proceed to the rest
20 of his evidence.
21 MR. IVETIC: I will, Your Honour, but I believe that in order in
22 terms of weigh the experts since you're going to have competing experts;
23 to weigh the experts appropriately, you do need to have some of the
24 specific information and specific background items because Mr. Dimas has
25 additional expertise, additional experience that Mr. McCoy did not have,
1 so in terms of weighing these experts, these Defence experts --
2 JUDGE ROBINSON: Give us the additional expertise.
3 MR. IVETIC: Fair enough, and I will try to keep it brief and go
4 just to the stuff that's important.
5 Q. We do not have your CV up on the screen, Mr. Dimas. I'd like to
6 first off ask you -- first off ask you, is this version of your CV
7 complete, up to date, and accurate, or do you have some corrections you'd
8 like to make or additions you would like to make to the CV?
9 A. Actually, I do have some corrections and some additions I do need
10 to add to this. This wasn't my most current.
11 Q. Could you direct us to those additions and/or corrections by
12 making reference to the page of the CV so that the court personnels can
13 accurately find it on the electronic version that has been submitted into
15 A. First off, on page 6, simply there I just had the dates between
16 my associate's degree in criminal justice and fire science backwards. I
17 attained the fire science degree first. That was the 1991 -- I mean,
19 The next correction would be on page 7, and there I just typed up
20 the association inaccurately. It's actually the International
21 Association of Arson Investigators, so the word "international" is in the
22 wrong place.
23 Q. And I'm reminded by the court officers that there's a discrepancy
24 between the electronic version of your curriculum vitae that is in
25 e-court and the hard copy that have you in front of you.
1 MR. IVETIC: Your Honours, page 5 of the CV that was, I believe,
2 disclosed to Mr. Groome - he can correct me if I'm wrong - somehow did
3 not end up in the e-court version. We're working to rectify that at
4 present, but I don't anticipate it'll cause a problem again. I ask
5 Mr. Groome to respond if it is a problem, if he has not been served with
6 it; but I believe he had the full CV, and I will be asking for that to be
7 corrected and then re-tendering the CV as completed for admission at that
8 point in time.
9 Q. Now, Mr. Dimas, as you've heard the instructions of the
10 Trial Chamber, they want to try and limit the -- or strike that.
11 A. Excuse me one moment. I wasn't finished.
12 Q. Oh, go ahead.
13 A. In regards to page 5, just so you know, that was just some more
14 advanced courses and training that were listed. I had no corrections
15 there. The additions I did have was I did not put that I had been
16 involved with our fire department SOGs or standard operating guidelines.
17 I just recently helped rewrite them and implement quite a few new
18 guidelines into the department standard guidelines for fire
20 In addition, on my summary, I briefly touched on training the
21 fire cadets. On my new CV I went more in-depth. I've actually been
22 training our fire cadets for a 4-hour block for the last four years. In
23 addition, I've gone to two community colleges and given seminars there on
24 fire investigation, as well, and that's all.
25 Q. And perhaps you could clarify for me. You just completed some
1 sort of training in Maryland
2 A. That is correct. I just spent two weeks in Maryland for another
3 advanced interview interrogation class accompanied with courtroom
5 Q. Now, as I was saying earlier, I'm going to try and streamline
6 some of your background focussing just on some things of interest with
7 respect to the reasons you are here to testify in this case. You already
8 mentioned in your discussions, page 6 of your CV and the two degrees you
9 have received, the two associates degrees in applied science; if I could
10 just ask you specifically with respect to the fire sciences degree that
11 you indicated you received first what emphasis or curricula was a part of
12 fire sciences for those of us that are not conversant with that degree.
13 A. That degree basically covered all the basics for fire-fighting
14 operations, including tactics, basic operations, inspections,
15 investigations. It covered all aspects for that degree, and it was a
16 two-year degree.
17 Q. Okay. Now, if we look at page 2 of your CV, you set forth some
18 of your various employment and occupational experiences relating to
19 various items. I want to just briefly touch on your time-period in the
20 United States Navy, and you indicate there that you were an aircraft and
21 ship-board fire-fighter, and could you tell us about what kind of
22 training or instruction you received in that field while a member of the
24 A. While serving in the United States Navy, I was actually an
25 aircraft electrician on F-14s. During that, I was stationed on land as
1 well as sea, so we had to be trained first in ship-board fire-fighting in
2 case anything occurred on board. Then in addition, once I received my
3 training on aircraft, I had to learn aircraft fire-fighting, again, just
4 in case anything happened. It was just basic fire-fighting on what can
5 happen on either one because each situation is different.
6 Q. Okay. We'll not go into more detail on that, but I would like to
7 know, you do mention there -- there's an entry linked to you being a
8 training officer for your division within the Navy, and if you could just
9 highlight for us whether that had anything to do with fire, fire
10 prevention, causes of fire, et cetera.
11 A. Actually, that did not go to the fire part of the training. That
12 was any time any new -- or changes had been made on how to repair
13 aircraft. It was my responsibility to update everybody within my
14 division and maintain their training records as well.
15 Q. Okay. You indicate in your CV that you were discharged from the
16 Navy and then the Navy reserve. Could you just tell us whether that
17 was -- what type of discharge that was.
18 A. From the regular United States Navy, I received an honorable
19 discharge, at which time I also was discharged with a Good Conduct Medal.
20 I had received a Sea Service Ribbon with a bronze star for going to sea
21 on two occasions. I also received unit commendation, as well, for our
22 last deployment. My discharge from the Navy Reserve was an honorable
23 discharge as well.
24 Q. I think that's fine. I'd like to move to where the bulk of your
25 occupational experience has been when you joined the Albuquerque Fire
1 Department where according to resume you've been in various capacities.
2 To try and break it up and move quicker, I'd like to focus first of all
3 on the time-period when you spent classified as a fire-fighter at station
4 16 to 19 in 1991 and 1996, and we've already heard evidence as to the
5 size of the fire --
6 JUDGE ROBINSON: Mr. Ivetic, I'm getting impatient. We have
7 already ruled he's an expert for the purposes for which he was called,
8 and I'm directing you now to move to the evidence. We can read all of
10 MR. IVETIC: Are you ruling then that the Prosecution cannot call
11 their own expert. Are you ruling then that my expert outweighs that
12 expert. Are you making those rulings, Your Honours, because --
13 JUDGE ROBINSON: Don't ask me any questions. Just follow my
15 MR. IVETIC: Your Honour --
16 JUDGE ROBINSON: Follow my directions. I'm not here to answer
17 questions from you. That is totally out of order. Follow my directions
18 and move to the evidence. That's my instruction.
19 MR. ALARID: Your Honour, if I might --
20 JUDGE ROBINSON: I'm not hearing you. Move to the evidence for
21 which he came here.
22 MR. ALARID: Your Honour, what I have to say will say less than
23 30 seconds.
24 JUDGE ROBINSON: I do not wish to hear you. I want Mr. Ivetic to
25 move to the evidence for which the witness was brought. We have heard
1 enough about his expertise. We do not wish to hear anymore.
2 MR. ALARID: In a vacuum it would be okay, but the Prosecution is
3 bringing an expert, and with them bringing an expert and us already
4 having opinions --
5 JUDGE ROBINSON: I know that, and I've made my ruling.
6 MR. ALARID: But they're saying it's a different context, and
7 we're saying --
8 JUDGE ROBINSON: I have made my ruling, so he must follow my
10 MR. ALARID: They're saying Mr. Dimas isn't qualified.
11 JUDGE ROBINSON: If you do not wish to have the witness testify,
12 then we'll call another witness.
13 MR. ALARID: Exception.
14 MR. IVETIC: If Your Honours would just give me a few moments to
15 try and reorganise my notes, I would try to comply with your instruction,
16 Your Honours.
17 Q. Now, let's focus on the -- let's start, first of all, with the --
18 your involvement in this case. First of all, what did you look at or
19 review prior to making a visit to the site -- to the sites, pardon me, in
20 Visegrad as part of your review or report?
21 A. I was given a compact disk with witness statements and
22 photographs to review prior to coming to the scene.
23 Q. And when you say photographs, what was your understanding of
24 where did these photographs come from? What entity were they provided
25 by? I should say taken by.
1 A. It was my understanding that they were taken by the Prosecution
2 on one of their examinations of the scenes.
3 Q. And with respect to -- before we get to the actual review of the
4 Pionirska site, which is where I think we'll begin, prior to that review
5 in the course of your employment with the Albuquerque Fire Department,
6 arson/fire investigation division, prior to that site how many other
7 locations had you had occasion to review and make opinions upon in the
8 course of your employment leading to arson/fire investigations?
9 A. In my time within the Fire/Arson Investigation Division, I've
10 gone to an excess of 600 fires where I've either been the lead or
11 assisting in the investigation.
12 Q. And I was remiss in not pointing out. I believe you are a --
13 your current position within the fire department involves some quality
14 control duties. Could you explain for us how those relate to
15 investigations done by your department as to suspected arson/fire
16 locations, what specific quality control duties you have and what
17 percentage or portion of the investigative case files do you have access
18 to as part -- within that role?
19 A. Well, I assumed the quality assurance position in 2007. During
20 that time, my position basically requires me to review all reports, case
21 files, files being submitted to the district attorney's office for review
22 and for approval. I also am in charge of our evidence as well as the way
23 it's maintained, transferred to the Albuquerque Police Department. I'm
24 responsible for the training of our new fire investigators. There's many
25 avenues to it, but basically --
1 JUDGE ROBINSON: Mr. Ivetic, am I to understand that you are not
2 following my instructions? I told you to bring the witness to the
3 evidence for which he was brought.
4 MR. IVETIC: And Your Honour, respectfully --
5 JUDGE ROBINSON: I imagine that that relates to his examining the
6 house and matters of that kind.
7 MR. IVETIC: Your Honour, respectfully, I'm talking about the
8 examination of the house. Before we talk about what he did at the house,
9 we have to talk about what his standard operating procedure is, what are
10 his experiences as to specific investigation of this type, especially
11 where it's matters that are not set forth in the curriculum vitae. With
12 all due respect, the curriculum vitae gives you certain information that
13 Your Honours can review and you can make conclusions upon; but where it
14 is silent it is my obligation, under my professional obligations to my
15 client to brink forth evidence that is not brought forth in the report,
16 not brought forth in the curriculum vitae that is relevant to these
17 proceedings, relative to his expertise.
18 JUDGE ROBINSON: Proceed quickly.
19 MR. IVETIC:
20 Q. Now, Mr. Dimas, if I could ask you to please continue and
21 complete your answer as to the -- what specifically is meant by quality
22 control duties that you have within the fire arson investigation
23 department and how that affects how you approach a review such as this
24 one in the Pionirska Street location.
25 A. Well, it all goes back to maintaining everything in a systematic
1 approach. We -- that's part of being a quality assurance officer. I
2 make sure that all the newer investigators follow the standard operating
3 procedures and guidelines of our office as to any investigation, the same
4 which I would follow, because I still conduct investigations, even though
5 I'm in this position now.
6 Q. Thank you. And with respect to the items that you had reviewed
7 prior to going to the site in Pionirska, did you initially have occasion
8 to view any video-tapes of the scene prior to going to do the on-site
10 A. No. I wasn't privy to any video-tapes.
11 Q. And for the record, when did you attend the Pionirska site to
12 perform a physical inspection of the premises where it is alleged that
13 the suspect fire occurred?
14 A. It was the 29th of January, 2009.
15 Q. And did you prepare a report following that physical inspection
16 of the premises setting forth your observations, empirical findings, and
17 opinions and conclusions relative to the same, relating to both Pionirska
18 and Bikavac?
19 A. Yes, I did.
20 Q. And if we could just briefly go through the formality of calling
21 up the record, 1D22-0682. And sir, is this the report that you authored
22 relative to the Pionirska and to the Bikavac locations as your assignment
23 for this particular court proceeding?
24 A. What I see on my screen is one page, so ...
25 Q. Okay. Do you recall how many pages your report consists of? I
1 believe we have four in e-court.
2 A. That is correct. It would be four pages.
3 Q. Okay. I want to ask you a few questions first about the
4 generating of this report. When was it generated? Was it generated
5 before, after, during the physical examination of the sites in Visegrad
6 that you just testified about having taken place in January of 2009?
7 A. It was after I completed my investigations.
8 Q. And with respect to the findings in the report or the conclusions
9 of your investigation. Did you and Mr. McCoy have occasion to peer
10 review or -- peer review or -- the conclusions that you both had
11 independently determined as to the site prior to drafting your reports?
12 A. Yes. That's one of our normal procedures. We use peer review,
13 bounce ideas back and forth, and then ultimately it's my determination
14 and decision as to the ultimate cause.
15 Q. Now, before going into some specification, I would like to ask
16 you with respect to this report, if I were to go through and ask you to,
17 under oath, now, answer questions based upon the materials based therein,
18 would your answers to the questions here be the same as specified in the
20 A. Yes, it would.
21 MR. IVETIC: And Your Honours, since you've ruled that he is an
22 expert, I would then ask to tender this report into evidence as the next
23 1D exhibit number, which again the CV, the CV would have to be updated
24 with the missing page.
25 JUDGE ROBINSON: Yes.
1 THE REGISTRAR: Exhibit 1D184, Your Honours -- 83, I apologise.
2 MR. IVETIC:
3 Q. Now, I asked you first of all if you reviewed any videos prior to
4 the site and prior to this report. How about after? Have you had time
5 since the authoring of the report and since your exploration of the site
6 to view any video-tapes of the Pionirska location?
7 A. Yes, I have.
8 Q. And could you briefly tell us what kind of a video-tape is this?
9 When does it date from?
10 A. I believe the video-tape was June of 2001. I'm not sure of the
11 month, but it was 2001; and it's my understanding that it was made by the
12 Prosecution in an examination during that time.
13 MR. IVETIC: Your Honours, we have a portion of the video-tape --
14 the video-tape in question was disclosed to us as P660.3, by the Office
15 of the Prosecution; with the assistance of my colleague Mr. Cepic, I
16 think we can play a portion if it and have Mr. Dimas commentate on what
17 he sees and how that affects certain things that he saw with respect to
18 the Pionirska property during the course of his physical review of the
19 same; so I believe it will help us, and I believe it will answer some
20 questions that Mr. Groome spent some considerable time upon last week
21 with Mr. McCoy as to the portico.
22 MR. GROOME: Can I just ask how we set our monitors so that we
23 can see this?
24 MR. IVETIC: May we begin the video? Is it -- good.
25 [Videotape played]
1 MR. IVETIC:
2 Q. Sir, can you commentate for us, what is that structure that we
3 see there that the cameraman is approaching?
4 A. Off to the left-hand side, that's that actual structure that we
5 went to. This is one of the neighboring houses. Can we just pan around.
6 That's the Pionirska house involved or the one that we went to
7 investigate in the background with the red bricks. That's a close-up of
8 one of the sides. Now, the small shed you see off to the side there,
9 that was not there at the time of my investigation. Again, we just focus
10 back in.
11 MR. IVETIC: [Indiscernible] back -- forward some, Mr. Cepic.
12 THE INTERPRETER: Interpreter's note: It is very difficult to
13 hear the speakers in the courtroom because of the background noise. If
14 there are any comments to be made, we kindly ask that the recording be
15 paused while that is being done. Thank you.
16 THE WITNESS: Okay. They're just noting the GPS location as to
17 where they're actually standing, filming from an approximate distance
18 away from the building.
19 MR. IVETIC:
20 Q. Can you make out the date on the GPS?
21 A. I can not see it on the screen at this time. Again, they're just
22 doing a circular review of the building itself. Just another reading.
23 I'll try and read -- it does say June 2001. I couldn't make out the
24 exact date.
25 Q. All right. I'm hoping that we'll get to the point where it's
1 going to focus on the door of the location. It should be -- well, let me
2 ask you about this. What about the second floor as we see it now? Is
3 that similar to the condition that you saw the premises in the 2009?
4 A. No, actually it's in much worse condition. It's actually leaning
5 a lot more. It looks a lot more -- or it is more unsafe when I went out
6 there. Like I stated, the upper portions are actually leaning now.
7 Q. Sir, I want you to focus your attention on the area next to the
8 entrance of the door, the basement as this video pans around to it, and
9 tell us what you see in the video to the right of the door under the
10 portico that we've all been referring to in this case.
11 A. Okay. As you're looking down in there, you can actually see that
12 right next to the door is actually a structured wall, which is no longer
13 there are at the time of my investigation; and apparently it's being
14 considered the portico under there, and we found fire damage in there
15 that we looked at. And since this was taken in 2001 by the GPS,
16 obviously that portico fire happened after 2001.
17 Q. And just now so we can clarify, we've had some photographs that
18 you and Mr. McCoy tendered as part of your report that showed some signs
19 of alligatoring. Would that be the area in question where the
20 alligatored wood was to be found?
21 A. Yes, it is. It's on that wall where the door is on the far back
22 corner of that little structure. Originally, we documented that to show
23 what alligatoring should look like.
24 MR. IVETIC: I believe that eventually we're going get a good
25 shot of the door going into the basement. One moment. This is the view
1 from the --
2 Q. Well, first of all of, let me ask you this. The video has been
3 fast-forwarded to the area now on the second floor of the premises. You
4 viewed this video with me prior to today. Do they ever go inside the
5 basement room that was the subject of your examination where all the
6 witness statements say that the fire occurred?
7 A. No. At no time -- at one point, they make approach towards the
8 door, and it appears that they're going to go -- enter or go around to
9 the window, and then suddenly the camera backs out and goes back up on
10 that hill, and they zoom in to one individual peering into the window.
11 Q. Based upon your knowledge and experience, what would have been
12 the appropriate method of preserving or memorializing the site if you
13 have a video camera and you have a suspected crime site with access view
14 of a window?
15 A. They should have actually gone completely around the entire
16 structure, at least made entry into the building itself; if that's the
17 building in question to document any evidence in there. I understand
18 there's some concerns because there are armed guards, but nevertheless
19 one individual does peer through a window. It wouldn't have been that
20 difficult to raise the video camera and just pan it inside the window to
21 see if there was any type of damage at that time, and that was not done
22 in this case, and at no time did they look into the structure for any
23 type of damage.
24 MR. IVETIC: Okay. If we could just -- Djuro, if we could
25 perhaps fast-forward a little bit -- there should be a portion where we
1 come right up to the door to the basement. If we could go a few
2 increments forward. Right there, if we could pause there.
3 THE WITNESS: That clearly shows the structure that's underneath
4 the portico, and you can see it's all the way up to the door, and the
5 part of the fire that we looked at in the far corner. Here it looks like
6 they're suddenly going to go around and look into maybe the window or
7 whatever. We note some plastic on the window, and then for some unknown
8 reason, they don't and they end up back up on the hill after this. See,
9 it jumps straight to going back. We have one individual at the window in
11 MR. IVETIC:
12 Q. And now --
13 MR. IVETIC: Okay, Mr. Cepic, we can pause that. Now I think
14 we're done with that for our purposes.
15 Q. First of all, there was the door that was visible to the basement
16 of the room from this video from 2001. Sir, was that the same door that
17 you saw on the site in 2009 in the course of your physical examination of
18 the property at Pionirska Street?
19 A. After reviewing the video and freeze-framing it, it appears to be
20 the same door and door jamb, and I came to that conclusion just by --
21 when I was on scene, and I examined the door, the door was actually
22 installed backwards. Where the doorknob or whatever would be was
23 actually up against where it's hinged, and this had that same locking
24 square mechanism in the same area; so it appears to be the same door from
25 the one I observed in 2009.
1 Q. Okay. Now I'd like to call up --
2 MR. IVETIC: Thank you, Mr. Cepic. That's it with the video, I
3 think. Your Honours, I would tender the video in question. Rather than
4 editing it, I think I'd tender the whole video so that the parties have
5 the opportunity to view the whole video, which deals with more than just
6 the Pionirska location. The Pionirska location, I think, is only about
7 ten minutes or so, but I don't want to be accused of altering anything,
8 so I just want to present it as is into the record; and I can provide a
10 Your Honours to see the elements that is have been discussed and in
11 particular the wooden shed or structure that is built in what we have
12 been calling the portico. So I think we should probably mark it for
13 identification at this point.
14 [Trial Chamber confers]
15 MR. GROOME: Your Honour, the Prosecution has no objection to
16 admittance of the video.
17 JUDGE ROBINSON: We'll admit it.
18 THE REGISTRAR: That's Exhibit 1D184, Your Honours.
19 MR. IVETIC: Thank you. Now I'd like to call up, just to focus
20 on this point, Y020-3539 -- pardon me, I take that back. That is
21 going -- that is already in evidence as 1D169. So if we could call up
22 1D169, I think that that -- there's no need to introduce multiple
23 exhibits of the same thing.
24 Q. Now, sir, are you familiar with this -- the location of this
25 photograph and where this photograph was taken?
1 A. Yes. This is the area inside that portico which the video showed
2 was a shed, and that was in the far corner.
3 Q. And so, sir, the alligatored wood that you see on both the left
4 and the right images on the screen, can you -- do you now have further
5 information as to what that wood might relate to, what that wood
6 comprised when it was whole?
7 A. It appeared just to be part of the shed structure itself after
8 reviewing the video.
9 Q. Thank you. And again, when you visited the site in January of
10 2009, apart from the items that you see here on the photographs, was the
11 shed that was in place in 2001 visible at all? Did we have any idea that
12 there was a shed there?
13 A. No. What you see in these photos is what was left. There was
14 actually no indication that there was a structure there prior.
15 Q. Thank you. And if I can ask you now, going back to your
16 arrival -- I should say the team's arrival at the Pionirska location,
17 where did you begin your review of the Pionirska site?
18 A. In relation to the site itself or going back to the reports and
20 Q. In relation to the site itself. When you arrived at the scene of
21 the location, could you tell -- try and tell us, explain for us where you
22 began your examination and what you were looking for.
23 A. Initially, our standard of procedure is we always do a 360 or a
24 complete walk-around of the structure. At that time, I had Mr. McCoy
25 walking with me, photographing and to document what we were seeing as we
1 were walking around. We do this to see if we notice any type of damage
2 that just really calls out to us, any patterns we might see from the
3 exterior that might lead us to one area more than another, and we just do
4 this as part of our standard operating procedures.
5 Q. And now if we focus, first of all, you say that you first off do
6 a walk-around of the structure, so I presume you focus on the exterior of
7 the structure. Can you first tell us what, if anything, struck you on
8 the exterior of the room where the investigation was centered, the
9 basement room of the house at Pionirska Street?
10 A. The room itself, we were noting that we weren't seeing what we
11 normally would on a normal structure fire, especially with windows.
12 Usually when a fire vents itself out a window, you see patterns. We
13 normally consider them to call V-patterns, or just basically where the
14 fire and soot billows out of a window and it goes up to the next level.
15 MR. IVETIC: Now, if we could call up -- just checking to see if
16 it's already been introduced into evidence so I can call it up by the
17 exhibit number. I don't see that it's been introduced, so I would like
18 to call up Y020-3473.
19 Q. And once that comes up on the screen, sir, if you could describe
20 for us, first of all, by marking with the assistance of the court usher,
21 using the pen, to mark -- in one colour to mark the area where the door
22 to the subject room is in the location at Pionirska and another colour to
23 mark where the wall of that room and the extent of that room terminates
24 as far as the rest of the structure is concerned, and I'm talking about
25 using, perhaps, blue for the door and red for where the outer wall of
1 that basement room terminates in relation to the rest of the building at
2 Pionirska Street
3 A. Okay. Right here's the door, and it extends to this area right
4 here, and I took measurements. That area right there is 6 feet, and then
5 the portico actually extends -- did you need a different colour for the
6 portico area?
7 Q. Well, you've indicated the -- am I to take it that the blue --
8 the blue vertical line on the right-hand side indicates the terminating
9 point of the wall as to the basement room at Pionirska?
10 A. That is correct.
11 Q. Okay. With respect to -- we see now and in the video the upper
12 wall of the second and third floor was intact. Here it seems to have
13 fallen, but the rest of the Pionirska house, to the right of that line,
14 is it sitting on any basement, or is it sitting on something else? What
15 is supporting that portion of the Pionirska house?
16 A. To the right of that second blue line, all that would be
17 supported by dirt or whatever's underneath it. The wall dead-ends right
18 there. The portico itself is another little notched-out area, but
19 there's nothing other than dirt supporting that second level or ground
21 Q. Are there any windows or other connecting features between the
22 basement room of the Pionirska structure connecting it to those other
23 parts of that structure that are to the right of the blue line that you
24 have drawn in on this document?
25 A. No, there is not.
1 MR. IVETIC: Since we're here, I'd like have to this marked and
2 admitted as the next available 1D exhibit number.
3 JUDGE ROBINSON: Yes.
4 THE REGISTRAR: Exhibit 1D185, Your Honours.
5 MR. IVETIC: Thank you, Madam Registrar. Now if we can call up,
6 please -- one moment. Well, since we'll be marking it, if we can call up
7 perhaps alongside one another Y020-3490 and Y020-3491, and bring them
8 side by side. I'd like to now focus you on this portion of your
9 pictures. Do I need to repeat the numbers or -- okay. There we go. And
10 if we can have one of the images just replaced by Y020-3491 side by side,
11 I think we can deal with the two photographs simultaneously and thus save
12 some time. There we go.
13 Q. Now, sir, do you recall looking at these photographs, and based
14 upon your knowledge, having been to the scene of the site, what walls or
15 portions of the structure are depicted in these two photographs?
16 A. That's the wall on the east side of the structure, and it's an
17 area that's not even near the lower basement area. That's the area that
18 we're talking about that's supported on the ground. The basement has
19 nothing to affect or deal with that area. What we're seeing there are
20 some bricks that are obviously collapsing more than likely due to the
21 severe moisture that's within the structure.
22 Q. When you say we're seeing some bricks that are obviously
23 collapsing, it would be helpful, I think, if you could use the drawing
24 tool again with the assistance of the court staff to demarcate or
25 identify the specific bricks that you are making reference to.
1 A. That'd be in these areas here and here. They're failing more
2 than likely due to all the damage, the severe moisture, and again, the
3 building of the lower basement area is nowhere near this. This is
4 approximately 6 to 8 feet away that's sitting on top of the landscape or
5 dirt itself.
6 Q. Now, if we can just back up a bit. It's been -- it's been
7 postulated by the Prosecution, I believe using these -- the same
8 photographs, that an air fuel explosion of some type took place within
9 the basement room that was the subject of the investigation and caused
10 the damage; that is to say the damage to these bricks that is evidenced
11 on this side of the structure that you have now circled. What do you
12 have to say as to that? Do you agree with that being a likelihood or
13 even a probability?
14 A. It's not a probability due to the fact the basement structure is
15 below level. This is above level, and the shockwave would have to again
16 penetrate through -- we're talking 6 to 8 feet of dirt, whereas have you
17 a wall directly in the basement that's still intact and did not fail.
18 Q. And just so we can back up a bit, perhaps there was one item I
19 ought to have gone through with you before, but you attended the
20 Post-Blast Investigation School
21 curriculum vitae. Could you please detail for us, first of all, what --
22 to whom that course was offered by the US Department of Justice and the
23 Federal Bureau of Investigations and what curricula you covered therein,
24 what types of things you were specifically trained to look for.
25 A. I was put on by the Federal Bureau of Investigation, and it was
1 put out to our department, the fire investigators, and the local police
2 department; and it basically taught us how to identify signs of blast,
3 how to reconstruct a scene that has been involved in a blast, including
4 the reconstruction of any type of device and specifically with IEDs or
5 improvised explosive device, something that somebody would just make up
6 in a time of war, and how to reconstruct it.
7 Q. And in conjunction with that, I see in 2002 you also attended a
8 course, I believe, in conjunction with the Department of Justice and the
9 National Emergency Response as to weapons of mass destruction, terrorism.
10 Whereas did you have any training as to -- instruction as to blast,
11 post-blast investigations arising therefrom?
12 A. Actually, I attended I believe it was three altogether, weapons
13 of mass destruction, but they dealt on different aspects other than
14 post-blast. They were more for biological, chemical warfare as well as
15 the treatment of patients.
16 Q. Okay. Now, in your employment with the fire department, have
17 you -- and specifically your employment as an arson/fire investigator
18 within that division, have you had occasion to deal with structural fires
19 that you have investigated that were the result of so-called air fuel
21 A. Yes, I have. During my time in the department, I have personally
22 been the lead on four structure fires that have been involved in a blast
23 due to this nature.
24 Q. Okay. And we'll get back to your specific observations of the
25 basement room, but since we're dealing with this now, I want to ask you:
1 Based upon your knowledge and experience and what you saw at the scene
2 with your own eyes, do you consider it to be likely that an air fuel
3 explosion took place and caused the damage in the basement room of the
4 Pionirska Street location?
5 A. No, it is not, but then again I wasn't directed to look for --
6 examination of that nature. I did review and make note of things I saw,
7 and I saw nothing of that nature.
8 Q. All right.
9 MR. IVETIC: If we could save this and tender it as the next
10 available 1D exhibit.
11 JUDGE ROBINSON: Yes.
12 THE REGISTRAR: Exhibit 1D186, Your Honours.
13 MR. IVETIC: Thank you, Madam Registrar.
14 Q. Now, if we can return to where we were going before, which was
15 your external examination of the structure. If we could focus now once
16 again on the room, the basement room. First of all, what can you tell us
17 about the entranceway to that room? What stood out for you or struck
18 your attention as you examined the entranceway to that basement room
19 where it is alleged that this fire occurred and that many persons
21 A. Well, initially walking up to the door we're looking at the roof
22 area where the portico was, specifically in front of the doorway. Again,
23 since it's a doorway, that's an opening for fire to travel out of. We
24 initially saw what appeared as black staining, so basically examined it
25 more thoroughly, and it was determined that it was mold of some type, and
1 it varied in colours from green to dark black, and it's very moist and
3 Q. I'd like to hold you up there for a second just to explain to us.
4 Now, you say you examine it more thoroughly, and it was determined that
5 it was mold of some type. Could you describe for us what you physically
6 did with the door frame to ascertain whether the darkened area was mold
7 or fire damage or smoke damage.
8 A. Well, after noting the ceiling area outside the door, I also
9 checked the door frame itself, and the dark areas followed the travel
10 line of the water and moisture. So to see if that was mold or not, I
11 actually scraped my finger across of it to see if it would come off like
12 normal residue of ash, which it did not. It was slimy to the touch, and
13 it was more like a mold. Anybody who's dealt with fires at all knows
14 that ash is very dry and powder-like.
15 MR. IVETIC: If we can call up, I believe, 1D165. I believe this
16 is an exhibit that we used with Mr. McCoy. Rather than calling up a new
17 one, I think we can make use of it if it's not too marked up. Actually,
18 I guess it is mark up. If we could go to -- pull up Y020-3527, please,
19 and that should hopefully give us the document on the right. There we
21 Q. Now, sir, looking at this photograph, is this the door frame that
22 you were talking about, and could you please indicate for us using the
23 pen what portion of the door frame you tested and the manner that you
24 described with your finger to ascertain what the cause was of the
25 darkened appearance of the material. I apologise. You should always
1 wait for the court usher. I should have made that clear earlier.
2 A. I'm sorry. Where I scraped it was just in this area right here
3 because there's already scrape marks in the other areas, so I didn't want
4 to compromise that, and this was done after Mr. McCoy had already
5 photographed it, so you wouldn't see my scrape on it.
6 Q. And, again, what can you tell us -- you've already told us how
7 you determined that it was mold. What can you tell us about the
8 appearance of this discolouration? Would it -- the location of the
9 darkening, did that also provide any kind of clues as to whether, in
10 fact, it was due to fire or to some other cause?
11 A. While examining that upper beam, it was noted that it followed
12 the travel line of moisture. If you note it traveling this direction, it
13 actually ties in with this water pattern, as well, and it also seeped
14 into this beam here, so it had the appearance of actually going with the
15 water, and that's how it got saturated and became moldy.
16 Q. Thank you.
17 MR. IVETIC: And I guess for the record, we should indicate that
18 the red enclosed rectangular shape in the middle of the door frame was
19 the initial marking by the witness, and all other markings in red are the
20 subsequent markings that he has just made demonstrating the path of
22 Q. Was the area there moist to the touch?
23 A. Yes, it was.
24 Q. And -- we can't see in this photograph. Let me see if I can find
25 another photograph.
1 MR. IVETIC: If we can have this admitted as the next 1D exhibit
2 number, and then I believe we can then move on to ...
3 THE REGISTRAR: Exhibit 1D187, Your Honours.
4 MR. IVETIC: Thank you, Madam Registrar. If we could go to P280.
5 Q. I was going to ask you about that piece of wood to the left of
6 the door jamb, but I think the next exhibit is a depiction of it. Now,
7 sir, do you recognise this portion of the door frame, and did you, in
8 fact, ascertain any empirical findings and make any conclusions as to the
9 darkened or discoloured portions of this wood material?
10 A. Yes, I did. I noticed this as being similar to the door shim,
11 which is basically just described -- it's a piece of wood to support this
12 door jamb and keep it level and upright and straight, and in regards to
13 this I did look at this for any type of burn patterns. I didn't find
14 any. What I found was more mold.
15 Q. Did you do the same type of physical testing?
16 A. Yes, I did. I ran my fingers along it and just looked at it.
17 Again, on any wood surface, I'm looking for any type of charring,
18 alligatoring, I mean, even just soot. Didn't find any alligatoring.
19 Everything's still smooth. As far as soot, again, it was still slimy to
20 the touch, and if you look in this area right here - I'll draw next to
21 it - you can actually see, it's actually more like it's seeping into the
22 wood whereas burn actually would burn it, and if the flame is coming --
23 or fire is coming out of that hole, it would be lapping around the wool.
24 Q. You've made a marking in red ink noting where you said the mold
25 was seeping into the wood. If I could ask you to perhaps choose a
1 different-colour marker and indicate by way of lines and an arrow what
2 direction you would expect a fire to be lapping over across the wood as
3 you just actually indicated, if it were coming out of the door.
4 A. Actually, on this portion I was looking it, if it was coming out
5 of the door frame, where this is fitted through; so I was looking at
6 seeing if fire was coming out of here, because it's an obvious gap, and
7 there was none, so we'd see lapping over this area, and we do not.
8 Q. And for purposes of memorializing the record, we would reflect
9 that the blue arrows are the mark-up of this photograph that you have
10 done to indicate that, and just to make clear, the light blue circle was
11 already on the photograph, and have you not made that marking; is that
13 A. That is correct, and I would like to state one more thing. This
14 is also on the interior of the structure. You can tell that by the door.
15 It's opened in, and that's one thing we note, the door opens inward, so
16 this is inside the structure.
17 Q. Okay.
18 MR. IVETIC: And if we can have, then, this saved and admitted as
19 the next 1D exhibit number.
20 THE REGISTRAR: Exhibit 1D188, Your Honours.
21 THE WITNESS: May I make a correction? I'm sorry.
22 MR. IVETIC: Sure.
23 THE WITNESS: I'm sorry, Your Honours. I was looking at this
24 incorrectly. That is the exterior. The door I'm looking at in the
25 background is actually opening inwards. I'm sorry. My perspective was
2 MR. IVETIC:
3 Q. And -- okay. And with respect to the exterior review of the
4 structure, of the -- pardon me, the interior view of the basement room
5 because, of course, we all agree that there was some sort of a fire on
6 the upper floors of the structure; is that correct?
7 A. That is correct.
8 Q. Focussing on the basement room, the door of which we were just
9 looking at, could you tell us with respect to that whether, in fact, you
10 found any signs on the exterior of the structure indicating the
11 likelihood or probability that that fire was evidence, that a large or
12 fully enveloped fire emanating from that basement room was evidence. Was
13 there any signs of that on the exterior?
14 A. No, there was not. Normally in a multi-storey structure, we look
15 at all the openings, again, the doors and windows because that's the best
16 way for a fire to travel is upwards; and we found no indication of a fire
17 coming out the door or two windows extending to the upward area that did
18 show fire damage.
19 Q. And then one more from the exterior before we move to the
20 interior. I'm just trying to find the appropriate picture.
21 MR. IVETIC: Well, I guess we'll just call it up as a new one:
22 Y020-3541, I think is the one we're needing to look at. Hasn't been
23 attached. Let me try and find -- well, let's move on, then. If we find
24 it we'll get back to it, but I'd like to proceed further.
25 Q. Now, after completing the visible physical inspection of the
1 exterior of the room in question, what could you tell us when you move to
2 the interior of the room what -- how did your investigation proceed, and
3 what first jumped out at you or struck you as interesting and of help to
4 you in reaching the conclusions that you reached in your report?
5 A. Well, initially entering into the structure, again, we used a
6 systematic approach. Normally in a larger structure we'd go around the
7 full building. Since this was a singular room, I just made entry into
8 it, and the first thing I noticed was the lack of flooring and
9 approximately two-thirds of it. So in that regard, I started inspecting
10 the dirt itself for any signs or remains of a fire or fire debris.
11 Q. Now, could you explain for us, what is the process that you
12 normally would employ based upon your knowledge and experience in which
13 you did employ at the site in question to check for any signs of fire or
14 fire debris as regards to the dirt, the exposed dirt on the floor?
15 A. What I did in the area where the dirt was, again, it's two-thirds
16 of that room, and the room, again, is 13 feet by 18 feet. And up until
17 where the wood planks are, I -- in various locations, I actually dug into
18 the dirt looking for some type of ash, wood chunks, burn chunks, any type
19 of wood debris that would normally be left behind.
20 Q. And you say that would normally be left behind. What is your
21 experience and what has been your experience with regards to your
22 occupation as to whether this debris can be completely cleaned out by --
23 cleaned up enough by an untrained person who is not a fire investigator
24 so as to remove all trace material?
25 A. It's unlikely. There's no way to get down deep enough. Even if
1 you had people walking on it, you'd find some sort of ash in relationship
2 to it. It's nearly impossible, or it is impossible, actually, to remove
3 everything out of a building, to save -- to clean it up, in your words, I
4 believe it was. You find something in every fire, and that's what my
5 job, is is to go in and find evidence in these matters.
6 Q. And now if you could explain something for us, in your line of
7 work when you're looking for such debris, for instance, in this case in a
8 dirt area, are you looking for large pieces, small pieces? I mean, what
9 type of matter are -- what size does the matter you're looking for
10 typically come in?
11 A. Actually, I'm looking for any and all, big, small, down to ash.
12 Again, any signs of fire, any type of evidence that might indicate a
13 fire. You know, during a normal investigation, you don't discount
14 anything you find. You must rule, look at everything, make a note of it,
15 and then take the totality of your investigation to come to your
17 JUDGE ROBINSON: Mr. Ivetic, we'll take the break now.
18 MR. IVETIC: Thank you, Your Honours.
19 --- Recess taken at 3.45 p.m.
20 --- On resuming at 4.21 p.m.
21 JUDGE ROBINSON: The Chamber apologises for the delay. We have
22 had to be consulting on some of the issues raised in the case.
23 Mr. Ivetic.
24 MR. IVETIC: Thank you, Your Honour. I've used the time
25 efficiently and I've located the missing photograph that we had prior of
1 the doorway, just to finish that off before we return to the floor
2 boards, Mr. Dimas. If I can have the assistance of the court usher or
3 court officer to call up Y020-3543.
4 Q. And when that photograph comes up, sir, I will again ask you to
5 review the same and advise us if you recall this particular feature of
6 the door, and if you could describe for us what your trained eyes see
7 with respect to the same. And if need be, if you need to use a pen,
8 please wait for the court assistant to assist you.
9 A. That's the other side of the door frame in the upper corner.
10 Again, this is the area that we're talking about earlier. Approximately
11 after the photos were taken, this area here is where I actually scraped
13 Q. For the record -- let the report reflect that you have marked in
14 red ink a circle towards the right-hand side of the photograph. Please
16 A. It was determined that everything in the area here was mold as
17 well as over here. Again, this also shows the travel of the water coming
18 down in the same direction that I point out earlier. Again, on this edge
19 of the beam, what I was looking at is this area right here. That's where
20 the water has been soaking into the wood, which follows that line, and
21 the mold has been going into the wood. In relation to this superior
22 portion --
23 Q. If we could -- for purposes of preserving the record, let the
24 record reflect that the left-most red line on the portion of the wood
25 wedge or shim, I think you had called it previously, is what's been
1 referred to by the witness. Now, sir, if you're going to mark any
2 further, I would ask with the assistance of the court staff that you
3 change colours so that we don't lose track of what is being depicted by
4 you in these photographs.
5 A. What I also did was these areas here or the gaps between the
6 wood, I was looking inside that area that area there; again I'm looking
7 for fire patterns, soot, debris, any type of indication that fire was
8 rolling through that area. It also aided me, or what I was looking for
9 was to see if this door frame was there at the time of the fire or after
10 the fire. Either way, there should have been some type of damage in
11 between there if this door was here now or afterwards. You would find
12 something between where this jamb was because of the size of the gap.
13 Q. Now, from this photograph we see sort of the rough appearance of
14 the -- I guess it's concrete that's up by the door. In your experience,
15 given the rough nature of the surface that is involved by the door frame
16 and by the door jamb, would it be possible -- strike that. Would it be
17 probable that someone could -- again, an untrained person could clean all
18 trace matter and are all evidence from that location?
19 A. No. There's just too many little cracks or gaps within all this
20 mortar and concrete to just scrub everything out of it.
21 Q. And is there anything else you need to tell us with respect to
22 this photograph, or shall I tender it?
23 A. You can tender it.
24 MR. IVETIC: Your Honour, I would ask that the photograph as
25 marked be tendered as the next available 1D exhibit number with the
1 caveat that the blue markings are the most recent markings on this
3 JUDGE ROBINSON: Yes.
4 THE REGISTRAR: Exhibit 1D189, Your Honours.
5 MR. IVETIC: Thank you, Madam Registrar.
6 Q. Now, before the break we were talking about the area of the floor
7 inside the basement, and you had indicated that you had performed some
8 tests to poke into the dirt to see if you could find any evidence of
9 debris that you would have expected resulting from a fire. You indicated
10 that two-thirds, approximately, of the interior floor was exposed dirt.
11 Could you tell us, did you check in one area, multiple areas, and if so,
12 how many areas approximately did you check in that fashion?
13 A. I approximately did five areas around that two-third area.
14 Basically, I did almost like a square pattern. I did corners of that
15 open area and then one in the centre. I felt that would give me the best
16 probability of finding something in the entire area.
17 Q. Okay. And now I'm going to give you somewhat of a hypothetical.
18 In your opinion based upon your experience and your knowledge, if there
19 had been a fire and either the wood in that two-thirds-exposed area had
20 been completely consumed or burnt up or had been removed after the fact
21 by someone using tools, would you still expect to have found something?
22 A. Yes, I would. You just can't get rid of everything. If you
23 start at one spot, you might stop on another spot, put a [indiscernible]
24 in the ground. There's just no way to get rid of everything. You might
25 get rid of the larger debris and scoop it up, but to remove ash totally,
1 you can't do it.
2 MR. IVETIC: Okay. Now, let me turn to Y020-3618, and alongside
3 that if we could have Y020-3617.
4 Q. And sir, now I'd like to start examining the wood interior.
5 First of all -- I will wait for the picture to resize. I guess -- if
6 that can --
7 MR. IVETIC: Maybe I'm just causing too much confusion this way.
8 If we can just pull up one of the photographs, perhaps the 3618 by
9 itself. Maybe that'll just be easier than trying to orientate them
10 lengthwise. And I believe that needs to be flipped -- rotated, pardon
11 me, 90 degrees. There we go.
12 Q. Sir, was there a portion of the interior floor that was still
13 intact, that is to say where the wood floor beams were still intact?
14 A. Yes, it was. That was approximately the one-third area that I
15 was talking about versus the two-thirds of dirt.
16 Q. Now, if I can direct your attention to the dark areas in the --
17 correct me if I'm wrong. This is a corner of the room that is depicted
18 in this photograph; is that accurate?
19 A. That is correct. This is the north-west corner of the building.
20 Q. And did you have occasion to note the -- first off, the dark
21 matter in the corner and the darkened wood floor-boards when you first
22 entered the room, and what was your first -- initial observations and
23 your ultimate conclusion?
24 A. Well, my initial observations from when I first walked in the
25 door, I thought I saw several patterns in the back corner, which later on
1 were identified as human feces, which were some of the darkened spots in
2 that soled plank area. Now, the area towards the bottom of the photo, I
3 inspected that area, and it actually goes a little bit further down on
4 one of the other photos. I inspected this area here because this was the
5 darkest and blackest area. And from the initial photographs that I had
6 reviewed before going to the scene, it appeared to be fire damage to me,
7 so I was curious to examine it.
8 Once I got to the examination of it, I did note that there was
9 some burned pieces of wood in this area, but on the edge of it, on the --
10 one of the other photographs, I actually found that the first part, most
11 of the blackening is done due to the mold and moisture content. On one
12 of the pieces of the wood, I did actually snap it off and inspect it
13 visually and felt it just to see if it had any fire damage.
14 Now, in this particular photo, the centre -- I believe it's more
15 over to the right just maybe -- on my screen, maybe an inch up. I did
16 note that there was some burn patterns there.
17 Q. Can I take it one step at a time. First of all, you indicated
18 that you did physically snap off a piece of wood from the floor to
19 conduct an examination of it. Could you tell us approximately where in
20 reference to the room that procedure was undertaken.
21 A. Actually, it was just on the edge of this photo. It's not
22 depicted in this particular photo. It's approximately maybe one foot
23 further down from that one large plank in the centre.
24 Q. Okay.
25 MR. IVETIC: Perhaps if we can enter this exhibit -- sorry,
1 tender this picture as an exhibit into evidence as the next 1D number,
2 and then if we can call up -- let's try 3617 to see if that's the area
3 that Mr. Dimas is referencing.
4 JUDGE ROBINSON: Yes.
5 THE REGISTRAR: Exhibit 1D190, Your Honours.
6 MR. IVETIC:
7 Q. Does this provide a better vantage point from what you're talking
9 A. No. The exhibit that has the best overall view, there's
10 actually -- I believe it's like a little kettle or a pot, a metal pot of
11 some sort on the right-hand side. It's a wider-angle view. It covers
12 more of the flooring.
13 MR. IVETIC: One moment.
14 If we can pull up Y020-3584, Your Honours. I think that's the
15 one that I'm looking for.
16 Q. And when that photograph comes up, Mr. Dimas, does this appear to
17 be the photograph that -- the view that you were referencing in your
18 prior discussion and answer?
19 A. Yes, it is.
20 Q. Okay. Could you tell us what you visually observed at the scene
21 when viewing this particular portion of the floor where the floor appears
22 to be somewhat intact, and if you could with the assistance of the court
23 assistants perhaps mark anything that you would like to draw the
24 Trial Chamber's attention to that is of significance in terms of your
25 conclusions and findings relative to the Pionirska Street location.
1 A. Okay. First, I'll point out the area that I actually broke off a
2 piece of wood and tested it by manually, physically feeling it, examining
3 it. It was basically in this area here. Somewhere in that area there,
4 snapped off a piece. Would you like me to switch colours for the next
5 portion or keep the same?
6 Q. Why don't we keep it the same for the time being, and we'll
7 denote that the area where you snapped off the wood has been marked in a
8 red circle towards the lower left-hand corner of the photograph, I would
9 say closer to the middle than to the left corner.
10 A. Okay. The one area I did note that had some burning and charring
11 was in this area here. In particular, we had some good charring on this
12 piece of wood, and other pieces around this area. What I didn't note was
13 during this investigation there was obvious signs that somebody has been
14 in the structure, obviously. I don't know if they're camping out or what
15 due to the human feces. You have actual remains of bones, consisting
16 more like a chicken bone or animal bone right here and right here; so it
17 wouldn't be impossible that that's where they're cooking their meat on.
18 Again, it had the appearance that somebody's been living in here since
19 the time of the fire.
20 Q. Now, with respect to the drawings that you've made, if you could
21 please put an A next to the area -- next to the circle that you drew
22 where you broke off a piece of the wood flooring.
23 A. [Marks]
24 Q. Thank you. And now if you could mark with a B the area where you
25 indicated that there was some charring and you said that persons were
1 camping out.
2 A. [Marks]
3 Q. And lastly, if you could mark with a C the locations where you
4 stated that you found some type of chicken bones.
5 A. [Marks]
6 Q. Thank you, sir. Now, I want to ask you a question about this
7 location. Using your knowledge and experience that you have as an
8 investigator of fires, do you believe that any fire that occurred in the
9 area for cooking -- that you indicated for cooking food based upon the
10 other evidence that's at this site would have fully enveloped the room
11 that is in question?
12 A. No. The amount of damage you see is limit to this one area right
13 here. You can see the unburned portion of the wood along the edge. When
14 you have a fire that grows to intensity to consume a room, it's called
15 flash-over. You need to get a temperature that reaches an excess of 1200
16 degrees Fahrenheit, and you'd have to have the fuel load or material to
17 burn to reach that type of temperature, and what's here is just not
18 enough to reach those temperatures.
19 Q. I'm just waiting for the translation to catch up with us. And
20 now with respect to the floor-boards, were there also portions of the
21 floor-board that were -- I believe in our discussions, you'd described
22 them to me as pristine condition.
23 A. Yes. In regards to the floor, we can see some of them. In
24 addition, throughout the whole room we actually found another piece that
25 was under one of the windows in question that was unaffected by fire or
1 flame of any type.
2 Q. And again, what does the existence of this pristine-condition
3 wood do for any hypotheses or any conclusions that you draw as to
4 whether, in fact, this room was subjected to a fully enveloped fire that
5 affected all the -- that would have affected all the interior of the
7 A. In a fully evolved structure fire, it affects everything one way
8 or another. It doesn't have to be burning, charring, but you're going to
9 have sooting, some type of staining, especially with wood. Wood is
10 porous and it absorbs things of that nature. Basically, patterns can be
11 transferred three ways: You have consumption, that's when it would eat
12 the item up, such as the charring you see on wood. It's been eaten up by
13 the fire; you have the deposition or the depositing of items such as
14 soot; and the other one is just by heat itself, and what we're talking
15 there is, say, a plastic item too close to a camp-fire or you heat your
16 straw up too much. It tends to melt, and we don't see anything like that
17 in this fire.
18 Q. And now, just to clarify, you say with respect to this fire that
19 we've been talking about, this camp-fire, my question was with respect to
20 the room as a whole. Do you see any evidence to a fully developed --
21 fully evolved fire having been in this room that would encountered all
22 the interior in?
23 A. Maybe I misspoke myself I used the camp-fire just as a reference
24 to what you'd see when you got too close to -- a plastic item to a heat.
25 As far as -- excuse me, Your Honours. What I described earlier was, I
1 meant it for in a fully evolved structure fire. The camp-fire reference
2 was to strictly to try to make it so more people would understand.
3 Q. Okay. And is there anything else with this particular picture
4 that we have on the e-court right now that you could -- that assists you
5 in assisting us understand your conclusions, or shall we move on?
6 A. The only other item in relation to this is whenever I do find any
7 type of burn pattern, I don't only just look at the floor. I look at
8 what's in close proximity or what's above it because we all know a fire
9 goes up and out, so I did look at the ceiling level of this, and I didn't
10 find any damage consistent with the fire being of great intensity
11 underneath it.
12 Q. That's one of the areas I was going to ask you about. Now, when
13 you say you looked at the ceiling, did you note -- what was the condition
14 in the room in terms of the moisture? Was there any signs of active
15 seepage into the room either through the walls or through the ceiling as
16 you observed them?
17 A. Yes. There was moisture throughout. First off, the floor was
18 very damp and moist. The ceiling was actually in act of dripping of
19 water. We did note -- I forget which ones come from the ceiling,
20 stalagtites or stalagmites, but the water growth coming off the ceiling,
21 and there was active dripping coming from the ceiling in multiple areas.
22 Q. Let me ask you about this. There's been some suggestion that
23 wood that has been charred as a result of fire, that water and
24 environmental aspects can remove -- basically remove or wash off the
25 evidence of fire damage. What effect does the presence of water have on
1 wood that has been subjected to a fire and has been charred and/or
2 subjected to alligatoring? What effect does water have on that type of
3 wood, generally speaking, based upon your experience?
4 A. Actually, with wood -- with anybody who's every dealt with any
5 type of wood, any time you introduce moisture, the moisture actually
6 helps preserve it because it doesn't dry out. So whatever condition it's
7 in by the time it gets moisture, that's how it would stay. So actually,
8 it would help preserve the fire damage.
9 Q. Okay. So had there been hypothetically a fully evolved fire
10 confined in this area, the basement room, would you expect to have found
11 evidence -- more extensive evidence of it than you saw of the condition
12 of these floor-boards by the camp-fire area and the other areas that you
13 have indicated?
14 A. Yes, I would. That was one reason why I examined the edge of
15 where I marked A at. Since that was the leading edge of it, I want to
16 see what type of damage that was, and again, that was a smooth, slick
17 area to the touch; whereas the noted alligatoring was in the centre. It
18 wasn't a progression either way. It was isolate to where B is labelled.
19 Q. Okay. And had there been a fully evolved fire in this room, in
20 your opinion would there have been the possibility for the mold to cover
21 up the evidence of that fire?
22 A. No, there wouldn't be that much because there's a lot of areas in
23 there that are very limited on the moisture. Like I said, there's a
24 great deal, but the moisture doesn't encompass the whole room. What I
25 should probably note out is when we look at fire patterns, patterns give
1 us two indicators. They show us the movement or direction of travel as
2 well as the intensity of a fire, and that's why we're looking for
3 patterns. They tell us which way it's going, and it leads us back to
4 wherever the fire started. And again, the intensity, if it was a heavy
5 fire, a weak fire, again, in a large-scale fire you'd see a lot of heavy
7 MR. IVETIC: If we can save the photograph as marked and tender
8 it as the next available 1D exhibit, I'd like to move on.
9 THE REGISTRAR: Exhibit 1D191, Your Honours.
10 MR. IVETIC: Thank you, Madam Registrar. And if we could in the
11 meantime pull up 1D22-0603.
12 Q. And while we're waiting for that to come up, sir, is it accurate
13 that you found one other location that you singled out or pointed out as
14 a potential small-scale fire in the basement room at the Pionirska
16 A. Yes. Directly as you walk into the door on the left-hand side
17 behind the door, again, the door opens inwards, so it's behind there
18 between the door and the first window, I did find some remains of charred
19 wood in that area as well.
20 MR. IVETIC: And if we could have the second page of in document.
21 I apologise. I think the second page has the portion that Mr. Dimas is
22 referring to.
23 Q. And sir, I believe it's going to be photograph number 7 on the
24 second page. Once it comes up, if you could take a look at that and tell
25 us whether that is the locale that you're making reference to now.
1 MR. IVETIC: I apologise. That's not it either. I guess it's
2 the next page, then. I apologise. Or 10. That's it, 10. Sorry. Too
3 slow. If we could back up to the next -- previous page, and it's
4 photograph number 10. I apologise.
5 Q. And sir, if you could tell us if that is the -- if that is the
6 location in question where you located evidence of a smaller-scale fire.
7 A. That is correct, in the corner there. I found some charred wood.
8 Q. And given the empirical evidence that you located, that is to say
9 the charred wood that you located, was it in your opinion -- in your
10 opinion, was that evidence for one to conclude that a large, fully
11 enveloped fire occurred in this room?
12 A. No, there was not. Again, all I did was I noted that there was
13 charred remains right there. It goes back to doing a complete
14 investigation and doing the totality of all the evidence. It was just
15 one more item for me to note. Again, when I review all the evidence
16 found on-scene, that's when I come to my conclusion.
17 MR. IVETIC: And, Your Honours, this particular document has been
18 tendered during the testimony of Mr. McCoy, and I just recall that
19 Your Honours are reserving ruling on this, so I will not tender this
20 again. I'll just wait for the ruling in due course on that, and I'd like
21 to move on to some more pictures as to the interior of the Pionirska
22 location, and if we could call up Y020-3590.
23 Q. And sir, are you able to place yourself back in the room and
24 describe for us where this window is located and where the -- where that
25 corner that is depicted in the room is located? Is that -- where is
2 A. This is the same area as the previous one. It's directly inside
3 the room on the left-hand side as you walk through the door. That's the
4 very first window, and the little fire debris that I noted was in that
5 corner there, just basically from the corner to the edge of that wood
7 Q. And there appears to be some dark discolouration of the wall
8 visible in this photograph. Did you ascertain what that was, or did you
9 draw any conclusions as to what that was?
10 A. Yes. It was examined, and again, we found that there was a lot
11 of moisture content in this area, a lot of mold. The pattern underneath
12 the window that almost looks like a V, that is actually just moisture, so
13 we didn't find any evidence of fire patterns in that area.
14 Q. And do you see to the left of the window there appears to be some
15 sort of demarcation in the wall or line in the wall that appears to run
16 from the top and goes underneath the window, actually. Did you visually
17 observe that, and did you reach any conclusions as to what that was?
18 A. Are you describing the line on the left-hand side or the wood
19 beam underneath? I'm sorry. I'm not sure what you're asking.
20 Q. Let me try and clarify. I see some sort of a line to the left of
21 the window but before the corner that appears to run down from somewhere
22 up on top towards the area underneath the window and then curves towards
23 the window. It looks like a black line in this photograph.
24 A. Yes. We took a look at that specifically because at the very top
25 there's, like, a circular or square-type image on top of that line. Let
1 me see if I have you correct. You're talking about this line here?
2 That -- and then this up here, I first noted the opening in the top. It
3 appeared initially as being burned. We actually -- actually looked up
4 into it, and we determined it to be more of a junction box. We actually
5 found that the straight line there and one of the lines coming over here
6 were actually electrical wires which were actually plastered into the
7 wall itself, so the darkness, it's just due to being a black hole that's
8 been filled with water mold, what have you, but that's actually an
9 electrical junction box.
10 MR. IVETIC: Okay. If we can have the picture as marked tendered
11 as the next available 1D exhibit number, and then hopefully I can call up
12 a clearer photograph of that area: Y020- -- pardon me.
13 THE REGISTRAR: Exhibit 1D192, Your Honours.
14 MR. IVETIC: Thank you, Madam Registrar, and I apologise for
15 preempting you. If I can have Y020-3579 and perhaps alongside it,
17 Q. And sir, while we wait for those, I hope those will be better
18 photographs of the area that you've described so as to permit you to --
19 no. I apologise. That's the wrong number. No.
20 MR. IVETIC: I apologise, Madam Registrar. Can I have Y020-3633
21 and alongside it, Y020-3634. There we go.
22 Q. Sir, do these provide a better vantage point of that which you
23 were describing to the upper left of the window?
24 A. That is correct. The square in the centre, again, if you just
25 look at a photo, it looks to be almost like a wood item inside, when
1 actually it's just an opening, and there's nothing inside of it.
2 However, these lines here and here were actually to identify those as
3 wires coming into that box.
4 Q. Thank you.
5 MR. IVETIC: Your Honours, if we can have this screenshot saved
6 with the markings attached and admitted as the next 1D exhibit number.
7 I'd like to move on.
8 JUDGE ROBINSON: Yes.
9 THE REGISTRAR: Exhibit 1D193, Your Honours.
10 MR. IVETIC:
11 Q. Now, we've been working our way from the floor upwards
12 systematically. I'd like to ask you a few questions now about the
13 ceiling, and with respect to the ceiling, could you describe for us what
14 spalling is, and what are the potential causes of spalling.
15 A. Spalling is a phenomenon that occurs in mortar, concrete, and
16 brick; and basically, it's the expansion of the water molecules within
17 those -- in those forms, and it can be caused either by heat or by severe
18 cold. And what happens is just causes expansion and contraction of the
19 water molecules, which makes the edges, basically, for lack of a better
20 word, pop and bust outward, and that's what spalling is.
21 Q. Now, would you agree with me that because of the various causes
22 or various potential causes for spalling that, therefore, you look at
23 other factors in addition to spalling before reaching any final
24 conclusion as to whether certain damage is based upon exposure to heat,
25 flame, or smoke or something else?
1 A. That is correct. In previous years, spalling used to be held as
2 a pure indication that ignitable liquid had been used. Then over the
3 course of the years, it was learned that it was more than just rapid
4 heat. That's when it was determined that it was due to the water
5 molecules and since that time is no longer one set indicator that any
6 kind of an accelerant or excessive heat was utilised. So in that matter,
7 that's why we can only use it as what we see. It's just another
8 indicator that something occurred there.
9 Q. So at the time that you visited the Pionirska site in
10 January 2009, what was the -- what was the overall totality of the
11 condition of the ceiling? Was it in good shape, bad shape? How would
12 you describe it?
13 A. It was in very poor shape due to the extreme water and moisture
14 that were seeping in. There was a lot of parts that were falling down.
15 I mentioned the little calcium or water stalagtites off the ceiling
16 dripping down, so there were areas that had actually collapsed downward.
17 Q. And now with respect to the ceiling, do you recall locating and
18 examining a hole in the ceiling that led up to the next level in the
19 Pionirska structure?
20 A. Yes. When you walk in just off to the right-hand side,
21 approximately I'd say four feet into the building, there is an opening
22 going up to the second floor. I was unable to determine what it was used
23 for. There was no type of pipe-work inside of it. It was just maybe a
24 three-inch-diameter hole going up to the second floor.
25 Q. Now, assuming for the moment in a hypothetical that a fully
1 evolved fire took place in the basement room and enveloped that room,
2 what would the existence of that circular opening in the ceiling mean
3 with respect to the fire and to the by-products of a fire?
4 A. Fire is much like water. It seeks the path of least resistance
5 to travel, so that's why we'll look at any type of opening or penetration
6 within a structure. That's why we look at the doors and windows. In
7 this case, this one was of great importance considering it's going
8 upward, and I stated earlier, fires as we all know travel up and out. So
9 if there was a fire inside this room, it would have let upstairs to the
10 next room, and upon examining that opening, found no evidence or no trace
11 of any soot or by-products of fire.
12 Q. And you -- let's ask you this question first. Do you consider it
13 plausible for there to have been a fire that would have not left such
14 residue and markings in the interior of this hole in the ceiling, and
15 perhaps -- perhaps to assist while you're answering that question, if we
16 can call up Y020-3361.
17 A. No. Again, any type of fire that would be generally near it or
18 next to it, as we all know, if have you a fireplace it would have that
19 chimney effect. The smoke would go up and rise into it.
20 Q. And now, unfortunately, in this photograph we don't have a
21 measuring tool or a ruler there to determine the diameter. You, I
22 believe, indicated it was 3 inches?
23 A. Approximately 3 inches, yes.
24 Q. Okay. And the rough interior that we see here, what -- what
25 would that rough interior mean in regards to any residue or any soot or
1 any smoke billowing through this hole from a fire in the basement room up
2 to the next level.
3 MR. GROOME: Your Honour.
4 JUDGE ROBINSON: Yes, Mr. Groome.
5 MR. GROOME: It occurs to me that this is essentially a repeat of
6 what Mr. McCoy has testified to. The report has been tendered. I'm not
7 sure that I see the point of having two people testify to exactly the
8 same thing when both reports are now in evidence.
9 JUDGE ROBINSON: Yes. We have been considering the same,
10 Mr. Ivetic. What's the point of this evidence which seems to be a
11 replication of earlier evidence?
12 MR. IVETIC: Your Honour, we have evidence that is still not
13 accepted by the Office of the Prosecutor which is still being objected to
14 by the Office of the Prosecutor. We have two individuals of varying
15 experience and varying qualifications who examined the Pionirska location
16 on behalf of the Defence. We have Mr. Dimas here who as we see in his CV
17 and the limited review of his experience is the one who does quality
18 control of the work of other fire/arson investigators, and he himself has
19 had similar experience in regards to this; and it goes towards
20 corroboration of the assertions that the Defence has made, and it goes to
21 explaining the portions of his report why he, in particular, believes
22 this photograph and what it shows is significant to his conclusion. And
23 again, it's something that the Defence cannot anticipate --
24 JUDGE ROBINSON: How much longer are you going to be?
25 MR. IVETIC: On the chimney? Just for another two or three
2 JUDGE ROBINSON: Well, just please conclude the
3 examination-in-chief. Go ahead, Judge Van den Wyngaert.
4 JUDGE VAN DEN WYNGAERT: I have a question. It seems that the
5 two experts visited the place at the same time together; is that correct?
6 MR. IVETIC: That's correct, Your Honour.
7 JUDGE VAN DEN WYNGAERT: Why didn't you have them draft one
8 report signed by the both of them? What's the purpose of the duplication
9 because we are hearing exactly the same from a different person in this
10 same case? Thank you.
11 MR. ALARID: Your Honour, one of the main things that the fire
12 investigators explained to me was peer review is essential. This is a
13 cold case, obviously, so with the limitations imposed, they wanted two
14 sets of eyes. Mr. Dimas is the lead investigator, and I think the
15 Prosecution used the junior status of Mr. McCoy to their theory of the
16 case, but the reality is the meat and bones of the investigation was
17 performed by Mr. Dimas, who is the lead and senior investigator.
18 Mr. McCoy was meant to carry the camera and of course has similar
19 qualifications but was not in the role of lead investigator on this
21 JUDGE ROBINSON: Two or three more questions, then.
22 Mr. Groome.
23 MR. GROOME: I would point out that's what's being pointed out
24 that what is being presented now is a lead investigator and junior
25 investigator was presented to the Court earlier today and last week as
1 two qualified experts in fire -- identification of fire causes.
2 JUDGE ROBINSON: Yes, Mr. Ivetic.
3 MR. IVETIC: We can ask the witness to explain that. That was
4 one of the areas I was going to go into in his prior experience that I
5 had to short-circuit, so if that's something that Your Honours are
6 interested in, the gentleman's here. He can explain the standard
7 operation procedure is in his employment and his line of work and what
8 the significance found to --
9 JUDGE ROBINSON: Just ask your two more questions and let's move
10 on to the cross-examination.
11 MR. IVETIC: Your Honour, I have also Bikavac, which will be
12 about five or six questions as to the Bikavac site, the second site that
13 was sought.
14 JUDGE ROBINSON: Very well.
15 MR. IVETIC: Thank you, Your Honour. I apologise. I think I had
16 a question pending. Yes.
17 Q. Sir, I'm going to repeat the question that I had asked prior to
18 this exchange, and it was: Given the rough surface that we see in this
19 interior leading up to this hole in the second level, what does that lead
20 you to conclude or expect as to any smoke or fire markers, i.e. residue
21 of soot? What effect does this un-smooth surface have on the collection
22 of any of those trace matters?
23 A. Well, with it being uneven, porous, you'd still find, again,
24 evidence of some type of sooting or collection of fire up in there,
25 mainly sooting and ash, maybe, if there had been a fire there because ash
1 tends to float, as well, and there is no evidence of that.
2 Q. And do you have any measurement or approximation as to the
3 distance between the beginning of this whole in the ceiling and its
4 termination point, that is to say how deep or how long is this going
6 A. It would be just whatever the thickness the slab was because it
7 ends on the floor of the second storey or the ground floor, so it's only
8 from the basement ceiling to the floor of the ground floor.
9 Q. Thank you.
10 MR. IVETIC: And if we could -- if we could just to be safe
11 tender this as an exhibit, Your Honours; I note that this exhibit was
12 used with Mr. McCoy, but my notes indicate that the one that he viewed,
13 he marked up, so I'd like to have a clean copy as well. One moment.
14 Yeah, I think it's illustrative to have a clean copy tendered. The one
15 that was previously tendered by Mr. McCoy has markings on it.
16 JUDGE ROBINSON: Yes.
17 THE REGISTRAR: Exhibit 1D194, Your Honours.
18 MR. IVETIC: Thank you.
19 Q. And now, Mr. Dimas, I'd like to move to the last area that we
20 had, will be brief as I know your investigations of that site were brief.
21 We also went to the Bikavac location. Is that accurate, and what can you
22 tell us about your trained observations as to the Bikavac site? Is there
23 anything that you can assist us as to that?
24 A. The scene exam was very limited since there was no structure
25 left. Again, there I observed what appeared to be the remains of the
1 foundation, some footings or footers that were out of concrete. I dug
2 into a couple areas within the dirt, again, looking for fire debris or
3 ash. I made note of areas where I found some black residue. That was
4 pretty much the extent of that investigation.
5 Q. And with respect to the black residue, what, if any, conclusions
6 or observations did you draw as to that?
7 A. It was determined to be a tar substance. When I noted the nearby
8 other buildings, it appears that they use it as a sealer within their
10 Q. And with respect to the Bikavac site itself, could you describe
11 for us as one of the few persons in this courtroom who's actually been to
12 the location physically, how difficult was it to get there, and what was
13 the surrounding terrain like and the location of the houses like around
14 the site where the Bikavac location was situated?
15 A. We had a slight difficulty. Going -- the main road going up to
16 it was uphill. One of the vehicles had difficulty with its clutch. Once
17 we got onto the side street leading up to the house, that was very muddy
18 and narrow. Both roads were very narrow, so even in the small car we had
19 difficulty reaching the site.
20 Q. And what about the neighboring houses, the neighboring houses to
21 the empty lot where the Bikavac site was located? What can you say about
22 the distances between or how close they were to that site?
23 A. The edges of the foundation after we identified edge to edge was
24 very close in proximity to two homes. On one side, there's a house
25 that's approximately three storeys again. It was probably within three
1 feet of that structure, and then on the other side that side was maybe 6
2 feet away, so very close proximity, so that's always a concern especially
3 in a fully evolved structure fire because fire can radiate or be spread
4 to other buildings nearby.
5 Q. Okay. One moment. Let me just check.
6 MR. IVETIC: And again, Your Honours, I believe the photographs
7 of the -- that had been selected by the experts for inclusion in their
8 report is the -- has been tendered through Mr. McCoy, and we're just
9 waiting the ultimate determination of the Trial Chamber, so I do not need
10 to tender those photographs a second time, I don't believe. And with
11 that, I have no further questions on direct examination for this witness.
12 JUDGE ROBINSON: Thank you.
13 Mr. Groome.
14 Cross-examination by Mr. Groome:
15 Q. Good afternoon, Mr. Dimas. My name is Dermot Groome, and I'm
16 going to ask you some questions. The first question I want to --
17 MR. ALARID: A moment. I apologise, Mr. Groome. We got via
18 e-mail during the direct examination of --
19 MR. GROOME: Your Honour, I ask that this discussion not be in
20 front of the witness, Your Honour.
21 MR. ALARID: Why not?
22 MR. GROOME: Your Honour, this weekend the Prosecution went down
23 to look at the site again and has some evidence I'd like to show
24 Mr. Dimas. I'd ask that Mr. Alarid not be coaching through his
25 objections Mr. Dimas about what it is that Mr. Alarid now knows we intend
1 to show Mr. Dimas during this cross-examination.
2 MR. ALARID: Well, to be honest, I don't know. We haven't been
3 produced this evidence. It is Rule 68 and -- whatever the rule is --
4 JUDGE ROBINSON: Let us deal with it when Mr. Groome gets to it.
5 MR. ALARID: Excuse me? I apologise, Your Honour?
6 JUDGE ROBINSON: You're anticipating what Mr. Groome will produce
7 in cross-examination?
8 MR. ALARID: It's video and photographs, apparently, and evidence
9 collected at the site that he's saying was part of his mission on this
10 particular weekend. I think we should have an opportunity to been
11 presented this evidence if it's going to be tendered in open court, and
12 we should be tender this evidence before he questions the witness on it.
13 And so under those circumstances, Your Honour, I think it's just common
14 courtesy in terms of producing evidence that if they had it, and if it
15 was producible this morning, it should have been tendered to us this
16 morning. The fact that it's not tendered to us until during the
17 testimony --
18 JUDGE ROBINSON: Well, is that going to be your first business,
19 first part of business in your cross-examination to tender this?
20 MR. GROOME: No, it will not be, Your Honour.
21 JUDGE ROBINSON: All right. When you come to it, then we'll deal
23 MR. GROOME:
24 Q. Sir, am I correct in stating --
25 JUDGE ROBINSON: Mr. Groome, the Defence spent two hours, and I'm
1 expecting you will use just about the same time, not more.
2 MR. GROOME:
3 Q. Sir, am I correct in saying that you and Mr. McCoy both discussed
4 your conclusions in this case and are in agreement in all material ways
5 about your conclusions about your examination at Pionirska Street;
7 A. That's not necessarily true. As part of peer review, what we
8 do --
9 Q. Sir, as you can tell, I'm very limited in the time I have. What
10 finding do you disagree with Mr. McCoy?
11 A. Well, the findings or evidence, like, for example, I'm not sure
12 what Mr. McCoy fully testified to --
13 Q. How about his report? Let's just look at the two reports. Are
14 you in full agreement with everything he said in his report?
15 A. I actually did not read his report.
16 Q. So how does peer review occur if you don't read his report? Do
17 you simply just discuss what are your observations?
18 A. Yes. We bounce off the -- what we're visually seeing on-site.
19 Again, I was the lead investigator on the scene, so I'm bouncing of what
20 I'm seeing and to see if somebody else sees something different.
21 Q. Okay. Thank you. You were shown a video in your direct
22 examination taken in 2001. You've seen the entire video; have you not?
23 A. Yes, I have.
24 Q. And throughout that video, there are many soldiers with masks on
25 and heavy weapons; is that not correct?
1 A. That is correct.
2 Q. Would ill be correct in saying --
3 MR. CEPIC: I'm sorry. Just a problem in translation in B/C/S.
4 Both speakers have been speaking quite fast.
5 JUDGE ROBINSON: I see.
6 MR. GROOME: I apologise to the translators.
7 JUDGE ROBINSON: You are speaking very fast. Please slow down
8 and observe the pause between question and answer.
9 MR. GROOME:
10 Q. It would be reasonable for anyone looking at that video-tape to
11 conclude that security was of paramount concern during the time that
12 video was taken; correct?
13 A. That is correct.
14 Q. And you do not know as you sit here whether there was possible
15 concern for possible mines inside that building or in the area; do you?
16 A. No, I don't dispute that. What I stated was --
17 Q. Thank you.
18 A. Your Honour, can I finish my --
19 JUDGE ROBINSON: Yes, please finish.
20 THE WITNESS: What I stated earlier was if there was such great
21 concern, they could have at least held the video into the window. If
22 they did have an armed guard right there who peered in. Why not document
23 it with the camera it self?
24 MR. GROOME:
25 Q. It may be that the decision about what soldiers can do and what
1 civilian photographers can do might be different, but there's really no
2 need for us to dwell on that.
3 MR. GROOME: I'm going to ask that 1D169 be shown to the witness.
4 Q. Now, this picture that's coming up now is the picture of the
5 charred material - it seems everyone agrees it's charred - in the
6 portico. Now, correct, this is to the right of the door in the portico;
8 A. Yes.
9 Q. So standing looking at the front door of the room, it would be to
10 your right still under the portico?
11 A. No, sir. You go to the right of the doorway, it's actually on
12 the left-hand corner of that portico.
13 Q. But it's to the right of the doorway?
14 A. Yes, to the right of the doorway.
15 Q. I'm going to ask -- Mr. Ivetic introduced 1D184. It's a video.
16 I'm going ask that you show a still of this. I'm going to ask that it be
17 placed on the ELMO. So if that could be placed on the overhead projector
18 to your right, we'll all be able to see, and if we could zoom out a
19 little bit. Now, sir, you've mentioned this -- I think you've referred
20 to it as a shed. It looks like a boarded-up area to the right of the
21 door; correct?
22 A. Yes, it has the appearance of some type of structure.
23 Q. Now, the burnt that material that we see on 1D169 is not visible
24 from this standpoint, is it?
25 A. No, it's not.
1 Q. So it is impossible to know that this video taken nine years
2 after the fire, whether or not the material on the wall there is burnt or
3 isn't burnt; is that not correct.
4 A. Can you rephrase?
5 Q. It's impossible from this video to tell whether or not the burnt
6 material in 1D169, whether it's sitting up there in 2001 burnt or it's
7 un-burnt. It's impossible for you to tell that, is it not?
8 A. That's correct. You can't tell either way.
9 Q. Okay. Now, you seem to suggest in your evidence that the fire
10 damage or whatever we see in the portico must be the result of a fire
11 that involved this shed because we no longer see this shed material;
13 A. Not necessarily the shed, but there is a fire within where that
14 shed existed.
15 Q. Do you believe that this shed material burnt down in the same
16 fire that we see the charred material from 1D169?
17 A. I couldn't say to that.
18 Q. Okay. So it's quite possible that this shed material was simply
19 taken down and there was never a fire involved in its removal; correct?
20 A. That's correct.
21 Q. Because you've testified that there's no fire damage on the door.
22 If this shed structure were to be destroyed by fire, you would expect to
23 see some fire damage on the door so close by; is that correct?
24 A. That is correct.
25 Q. Thank you. Now, can I draw your attention to the -- above the
1 door. Do you see that very black area above the door? Could I ask you
2 to circle that so that we know that we're talking about the same -- the
3 same section.
4 MR. GROOME: And if I can ask while we're doing this, if we could
5 prepare to work with P270. It's in e-court.
6 THE WITNESS: Is that the area you're discussing?
7 MR. GROOME:
8 Q. Yes, except it looks like it extends all the way to the left.
9 A. Oh, correct.
10 Q. Now, you can't say that this is not smoke damage, can you?
11 A. Yes, I can.
12 Q. And how can you -- are you able to say that that's not smoke
14 A. Because I was physically at the site and examined it.
15 Q. Well, are you able to say that this isn't -- this is not charred
17 A. Yes, I can.
18 Q. Does this look the same as the way you saw it at the site?
19 A. No. Actually, there's less of it now because of the time-period.
20 Q. So is it possible this is what we're looking at is the same
21 charred material you found to the right but now in your January visit
22 it's now missing?
23 A. No.
24 Q. It's not possible?
25 A. No.
1 Q. Okay. Thank you.
2 MR. GROOME: I would tender that, please.
3 JUDGE ROBINSON: Yes.
4 THE REGISTRAR: Exhibit P302, Your Honours.
5 MR. GROOME: Now, if we could take a look at P270.
6 Q. Sir, on your report, which is now 1D183, you refer to a beam, and
7 earlier in your direct testimony at transcript 49, you refer to a beam as
8 a pristine piece of wood. I want to be sure that we're talking about the
9 same piece of wood, okay? Okay, it should be up on the screen in front
10 of you. Do you see the piece of wood circled at the bottom that's
11 circled in blue?
12 A. Yes, I do.
13 Q. Is that the piece of wood that you describe as a beam that is
15 A. Yes.
16 Q. Now, Mr. McCoy has testified similarly. Is it at all possible
17 that this could be a piece of furring strip used as a means of attaching
18 a piece of finished wall surface to the wall?
19 A. I examined it to see if anything might be attached to it, and I
20 did find a couple of nail holes or nails actually in it, but in
21 conjunction to everything else I eliminated anything been attach to it.
22 Simply, it was a clean piece of wood with two nails in it. Again, I do
23 the totality of all of my findings.
24 Q. Now, Mr. McCoy described it as a piece of wood, a beam embedded
25 in the concrete. Is that your recollection of the piece of wood?
1 A. Yes.
2 Q. How did you come to the conclusion that it was actually embedded
3 in the concrete wall?
4 A. Because the concrete is flush with the edges of it.
5 Q. Okay. Now, I'm going to ask that you be shown two pictures at
6 the same time on the screen. The first is Y020-3396, and the second is
7 Y020-3359. If they could be placed side by side on the screen. Okay.
8 Now, what I'm interested in -- let's look at the picture on your left,
9 3396. See that black line up there?
10 A. Yes.
11 Q. Running horizontally. Can I ask you to circle it so that, again,
12 we're both sure that we're talking about the same thing.
13 A. [Marks]
14 Q. Do you recall where in the room that was?
15 A. That was on the -- that'd be the east wall.
16 Q. Now, I've put the other picture there, hopefully to assist you.
17 This is the area to the left of the door. We can see the door jamb in
18 the right-hand side of the frame. Do you see that?
19 A. Yes, I do, so I stand corrected. That's actually the south wall.
20 Q. Okay. So am I correct in saying that the black line that we see
21 here that you've circled is to the left of the door at the upper portion
22 of the wall?
23 A. Yes.
24 Q. Did you examine this area?
25 A. I looked at the wall. I don't specifically remember doing this
2 Q. Did you find any evidence of charring on this wall?
3 A. No.
4 Q. Did you examine the black material that's embedded in the
6 A. No.
7 Q. So I take it, then, you didn't take a sample of it either?
8 A. No, I did not.
9 Q. Okay.
10 MR. GROOME: I'd ask that we tender the -- either the entire
11 screenshot or the -- well, actually, the entire screenshot, please.
12 JUDGE ROBINSON: Yes.
13 THE REGISTRAR: Exhibit P303, Your Honours.
14 MR. GROOME:
15 Q. Now, with respect to the ceiling, on page 2 of your report you
16 say: "Areas of concern ..." for windows walls and ceiling, and under
17 item 2(A), you state:
18 "Areas show no V-patterns, sooting, or spalling associated with
19 normal fire patterns."
20 Is it your evidence that the ceiling showed no signs of spalling?
21 A. That is correct. I ruled it out based on the deterioration of
22 the ceiling area.
23 MR. GROOME: Now, could I please ask that we look at on e-court
25 Q. Do you recognise this photograph?
1 A. Yes, I do.
2 Q. And can you describe where this is in the room?
3 A. That's actually on the east wall, towards the north edge of it.
4 Q. For those of us who might prefer a reference point from the door,
5 if someone were to stand in the door's threshold looking into the room,
6 which wall would it be on?
7 A. That would be on the right-hand side.
8 Q. Same wall that the flue or the -- what you describe, I think, as
9 a pipe chase is on?
10 A. Actually, I did not use the term "pipe chase." I just said an
11 opening, but yes, it's the same wall, and it's approximately 5 feet
13 Q. Okay. What are your observations and conclusions about the
14 blackened material that we see in those pockets in the wall to the right
15 of the clay tile?
16 A. Actually, what I found was the one in the centre specifically, it
17 had a chunk of charred wood embedded in it.
18 Q. So you found a piece of charred wood embedded in the wall. That
19 didn't make its way into your report, did it?
20 A. No, sir, it did not. Again, what I took what I found and I noted
21 it down, and again, it's the totality of everything. I'm not going to
22 list if I find one little speck in one corner of each area. I'm going to
23 take my findings altogether.
24 Q. Let me ask you a few questions. Now --
25 A. Excuse me, let me finish, please.
1 Q. It's me that's asking the questions, sir. [Overlapping speakers].
2 A. You asked me a question. Your Honour.
3 JUDGE ROBINSON: Just a minute, Mr. Groome. Let him finish.
4 Yes, go ahead.
5 THE WITNESS: What I did do is normally when I find a chunk of
6 wood coming out of a room, I try to determine if there's any correlation
7 to it like a rafter going from one end of the wall to another, and I did
8 not. So I did noted down that I find a chunk of wood in this wall. I
9 was able to physically pull it out. It was not stuck in there. It was
10 just a piece of wood in the wall.
11 JUDGE ROBINSON: Thank you. Yes, Mr. Groome.
12 MR. GROOME:
13 Q. You said you noted it down. Where did you note it down.
14 A. In my notes at the time.
15 Q. Can I please have a copy of those notes I'm entitled to?
16 A. Actually, it's our policy that we destroy all our notes after we
17 write a written report.
18 Q. So the notes have been destroyed?
19 A. Yes.
20 Q. Now, where you found this charred wood was rather close to the
21 ceiling of this room; correct?
22 A. Actually, it's about a foot away approximately. From floor to
23 ceiling, it's about seven feet high.
24 Q. And is it your evidence that you did not think it was significant
25 to mention in your report or your direct evidence here today that you
1 found a piece of charred wood about 7 feet off the floor?
2 A. No because I couldn't determine how it got there. There was
3 charred wood on the floor, in the flooring that was left; so it could
4 have been somebody took the piece of wood, jammed it up there for what
5 reason; I have no idea. Again, it's a piece of burned wood in the wall
6 by itself.
7 Q. Okay. Now, is this tile where Mr. O'Donnell recovered what he
8 believed to be a fragment of a grenade?
9 A. No. Actually, that would be further to the left-hand of this.
10 Q. Okay. Thank you. Now, on page 2 of your report, again, you list
11 areas of concern for windows, walls, and ceilings; again, that there's no
12 sooting or V-patterns. Did you do a careful examination of the exterior
13 window of the basement room?
14 A. Yes, I did.
15 Q. And do you have find anything that could be considered smoke
17 A. No, I did not.
18 Q. Now I'd like to move to the door. On page 2 of your report
19 again, you say:
20 "Door and door jamb examined and showed no charring, sooting, or
21 any type of fire damage. Door also opened into the structure. Area
22 between the door jamb and block wall was examined for sooting or venting
23 patterns through penetrations and showed ..." I believe you mean no fire
24 patterns. You have two fire patterns. Did you mean no fire patterns?
25 A. I meant no fire patterns.
1 Q. Okay.
2 JUDGE ROBINSON: Mr. Groome, it's time for the break. We'll
3 resume at 6.00 p.m.
4 MR. GROOME: Your Honour, could I ask that the witness be
5 instructed not to discuss his testimony with anybody during the break?
6 JUDGE ROBINSON: Witness, are you not to discuss your testimony
7 with anybody.
8 THE WITNESS: Yes, Your Honour.
9 JUDGE ROBINSON: Now, Mr. Alarid, the Chamber has been trying to
10 find additional court hours. It's possible that we may be able to sit
11 tomorrow morning, and I will let you know. Mr. Groome, that presents a
12 problem for you?
13 MR. GROOME: Not that, Your Honour, but there's a related matter
14 I'd like to address in terms of scheduling very briefly.
15 JUDGE ROBINSON: I'm let you know at the beginning of the next
17 MR. GROOME: Your Honour --
18 JUDGE ROBINSON: And I also wanted to say to you, Mr. Alarid, you
19 gave us an overview of your witnesses for the week, and if we are able to
20 sit morning and afternoon on some of the days for the rest of the week,
21 then we might reach Mr. Groome's rebuttal witnesses because we're going
22 to give a decision on that tomorrow. So Mr. Groome should stand by.
23 MR. GROOME: I'll do my best, Your Honour. It's hard, but if I
24 could address one scheduling matter with the Chamber. At the end of last
25 week, Mr. Alarid advised us that the order of witnesses this week would
1 be Mr. Dimas, then Mr. Jenkins, and then Dr. Hough. Today when court
2 started, he said that they'd be shifting around Hough and Jenkins. I now
3 see that the Chamber has given a ruling where Prosecution will have
4 access -- I've only read the disposition. I haven't read the entire
5 ruling, but I think that I've concluded that the Chamber is going to
6 grant us access to some of this material. It's -- or maybe I'm wrong.
7 Are we not getting the audio-tapes?
8 MR. ALARID: No. We didn't rely on the audio tapes.
9 MR. GROOME: I haven't gotten a chance to read --
10 THE INTERPRETER: Microphone, please.
11 JUDGE ROBINSON: I'll have to check on that. I can't remember
13 MR. GROOME: Your Honour, what I'm asking is that Mr. Alarid be
14 instructed to produce the witnesses in the order that they were noticed
15 to us last week. Ms. Sartorio is doing Dr. Hough. There may be some
16 additional material that the Prosecution is getting. We would ask that
17 the noticed order be maintained. It was switched around last week and it
18 caused me to lose a night's sleep. I would ask that we maintain the
19 order as it's given to us on the Friday before.
20 JUDGE ROBINSON: That's fair enough, Mr. Alarid. Why are you
21 switching it around?
22 MR. ALARID: Your Honour, because we're two people and we're
23 trying to prepare -- Your Honour, if you give this Prosecution
24 consideration for losing a night's sleep when they have nine attorneys to
25 rotate through witnesses -- well, that's crazy. We have to do the best
1 we can with the 24 hours, man hours we have on a particular day between
2 two human beings, and that's all we have. And the fact that they get
3 granted everything and we get granted nothing --
4 JUDGE ROBINSON: Mr. Alarid --
5 MR. ALARID: That is how I feel. That is how I feel.
6 JUDGE ROBINSON: There is no basis for that comment whatsoever.
7 MR. ALARID: That is -- I think the record is replete --
8 JUDGE ROBINSON: Let us adjourn, and we'll resume at 6.00.
9 --- Recess taken at 5.38 p.m.
10 [The witness stands down]
11 --- On resuming at 6.09 p.m.
12 JUDGE ROBINSON: Mr. Alarid.
13 MR. ALARID: Yes, Your Honour.
14 JUDGE ROBINSON: Quickly, briefly.
15 MR. ALARID: Well, briefly it goes to the matter at hand, which
16 is the Prosecution has just shown me several bags containing apparent
17 material from the location known as Pionirska.
18 JUDGE ROBINSON: It's -- why don't you wait until they put it in
20 MR. ALARID: Well, Your Honour -- well, Your Honour, here's the
21 problem: No foundation.
22 JUDGE ROBINSON: Why?
23 MR. ALARID: Well, the problem is that the Prosecution chose to
24 present a case with no expert forensic examination of the properties
25 before --
1 JUDGE ROBINSON: Are you going to introduce that in your
2 cross-examination now?
3 MR. GROOME: No, Your Honour.
4 JUDGE ROBINSON: Well, wait until that time. Why are you
5 preempting it?
6 MR. ALARID: Your Honour, because I asked --
7 JUDGE ROBINSON: I do not wish to hear you. Sit down.
8 MR. ALARID: It asks you to assume facts not in evidence,
9 Your Honour.
10 JUDGE ROBINSON: Mr. Groome, continue the cross-examination.
11 Wait your turn. Don't waste time.
12 [The witness takes the stand]
13 MR. GROOME:
14 Q. Mr. Dimas, before I resume my questions about the door, I wanted
15 to ask you, given that you were one of the people that recently drafted
16 the new standard operating guidelines, what is the underlying rationale
17 why fire investigators of the Albuquerque Fire Department are instructed
18 to destroy the notes that they take at a fire scene after they've drafted
19 their report? What's the rationale, please?
20 A. Just that there's no need for them after you've written your
22 Q. But haven't we just demonstrated that it's of critical need
23 because here's this piece of charred wood in the wall that was in your
24 notes but not in the report; correct?
25 A. That is correct.
1 Q. Let me turn to your report --
2 JUDGE ROBINSON: What is correct? You have put two propositions
3 to you, and you have said "that is correct." Are you agreeing with him
4 that what has been demonstrated is that -- would you repeat the question,
5 Mr. Groome, because I'm not sure the witness understood it when he said
6 that's correct.
7 MR. GROOME:
8 Q. What I'm putting to you, sir, is that you've admitted that you
9 have -- you noticed something in the charred wood in the wall; correct?
10 A. Yes.
11 Q. You say that you noted your observations about charred wood in
12 the wall in your notes, but you never put that in your report; correct?
13 A. That is correct.
14 Q. And what I'm saying to you now is, you have just testified that
15 the reason that the notes are destroyed is because there is no need for
16 them once you've drafted the report; correct?
17 A. Yes, that is correct. There's no need for your notes after
18 you've drafted it.
19 Q. And I guess what I'm suggesting to you is that you have just
20 demonstrated that there is a need because there's a very important
21 inconsistency between the notes that you took at the scene and the report
22 that has now been tendered as evidence in this case; correct?
23 A. No, there's not an inconsistency. It's just again it's just a
24 totality of all your evidence that you found. You don't have to include
25 everything as I stated earlier. If I noted that there's one piece of ash
1 in the centre of the room and I had made note of that, I wouldn't include
2 that in my report either.
3 Q. So the reason you did not record in the report your discovery of
4 charred wood near the ceiling of the centre of the room was because you
5 did not deem it important for your report?
6 A. That is correct. In addition, we also had it as photographic
7 evidence that we could discuss it in -- in putting the two together and
8 discussing it, that's when you can actually point out what you were
9 seeing as we did here today.
10 Q. Okay.
11 A. I did not make note in the report, but I can demonstrate it on
12 the photographic evidence.
13 Q. Is there anything else about your observations when you examined
14 the scene that did not make it into your report? So even if you think
15 it's insignificant, I'm asking you to list for me any other observations
16 you made at the scene which you did not include in your report.
17 A. I don't believe that I listed that the patterns above on the
18 second floor where there is actual wood that shows fire damage. There's
19 fire patterns up there. I didn't include that many my report --
20 Q. But you did have that in your notes?
21 A. Yes.
22 Q. Okay. Anything else in your notes that did not make it into your
23 report? Let's -- to save time, if we could focus on the basement room
24 and the portico. Is there any other observations you made about either
25 of those two locations, in the basement, that you noted in your notes but
1 you deemed that it wasn't important enough to put into your report?
2 A. I didn't list, as well, the pit marks that --
3 Q. Mr. O'Donnell?
4 A. -- Mr. O'Donnell was investigating. I didn't feel that was
5 necessary for my report. Again, we did photograph it, and if it came up,
6 I could explain and describe what I'd seen.
7 Q. Okay. Thank you. So other than that, is there anything else?
8 A. I don't believe so, no.
9 Q. Now, did you draw the conclusion that the door that's presently
10 there is the original door?
11 A. I didn't determine it either way. What I did was I examined it
12 for burn patterns, as I put in my report, the door itself, the door jamb.
13 I tried to see which way it opened, which way it swung. I did have
14 concerns as to the hinge marks and the locking area being incorrect.
15 That was another thing I did not note in my report, but I did observe it,
16 and it was photographed, and I explained it here today.
17 Q. Did you put that in your notes?
18 A. Yes, I did.
19 Q. So it seems that you're saying now that you really don't know or
20 you can't say with any certainty that the door was the same door that was
21 there the night of the fire; is that correct?
22 A. I never stated that, so ...
23 Q. All you can state is that what you observed, you made certain
24 observations about black mold and no presence of any kind of fire; is
25 that correct?
1 A. That is correct.
2 Q. So do you accept the possibility that the door may have been
4 A. Yes, the door may have changed, and that is one reason why I
5 examined the gaps between the door jamb and the concrete that it would
6 have been attached to to see if there was any damage in between because
7 had they removed the door, there still should have been some sort of
8 damage in between.
9 Q. Okay. Now, Mr. McCoy drew the conclusion that it was the
10 original door. Is that a conclusion that the two of you discussed?
11 A. I never discussed that with him. Again, it was my understanding
12 coming out here I was the lead investigator and had been chosen so by
13 Your Honours. Mr. McCoy was supposed to be down here to be my
14 photographer and to be a person I could ask questions to to see what he
15 was seeing, but it was my determination.
16 Q. Okay. Thank you.
17 MR. GROOME: Could I ask that we call up Defence Exhibit 1D174.
18 Q. It'll take a few minutes to call that up. While it's being
19 called up, in paragraph 3 of the first page of your report which is now
20 in evidence as 1D183, you state:
21 "I performed a systematic approach beginning with the exterior of
22 the structure trying to identified any type of burn patterns or fire
24 Now it seems in the evidence that you've given in the last few
25 minutes and in direct examination that you did do an overview of the
1 entire structure, not simply the basement; correct.
2 A. That is correct.
3 Q. Now, I want to show you an exhibit that was used with your
4 colleague Mr. McCoy. It is 1D174. It is a picture of the upper floor of
5 the house. The floor has very obviously burned away. Mr. McCoy
6 testified that he saw smoke damage here. In fact, let me read to you
7 what he testified to at transcript page 5824:
8 "There is smoke damage, smoke discolouration in a V-pattern above
9 that timber." And this corresponds to the marks that he made. "It's
10 darker coloured areas of the tile. Arson investigators, we're trained to
11 read patterns. That's what leads us to the origin."
12 Has Mr. McCoy correctly outlined the area in which smoke damage
13 is apparent to the trained arson investigator?
14 A. First off, let's correct the terminology. It's fire
15 investigator. You have to investigate the fire before you make the
16 determination of it being an arson or not.
17 Q. Okay. I stand corrected. So fire investigator, with that
19 A. He does make a lot of good points, or he has noted a lot of items
20 here. He did miss a few other patterns here as well.
21 Q. Before we go on to additional smoke damage, if we can focus on
22 what he indicates as a V-pattern of smoke damage coming up from that
23 timber. Do you see it?
24 A. Yes, I do.
25 MR. GROOME: Now, if the witness could be given a red pen.
1 Q. It seems that you see additional smoke damage; is that correct?
2 A. That is correct.
3 MR. GROOME: Okay. If we can change the pen to red.
4 Q. And if you could show us the smoke damage that Mr. McCoy missed.
5 A. I'd say that's about it.
6 MR. GROOME: Okay. I'd ask that that be -- I would tender that
7 exhibit under a new number, and if we could leave it on the screen.
8 JUDGE ROBINSON: Yes.
9 THE REGISTRAR: Exhibit P304, Your Honours.
10 MR. GROOME:
11 Q. Now, Mr. Dimas, the evidence provided by Mr. McCoy and yourself
12 raises a very significant issue in the trial. You see seven people
13 escape that fire; six of them gave sworn evidence before this Chamber.
14 The seventh died after the fire, but his son recounted what happened that
15 night. All seven are resolute in their account that over 65 women,
16 children, and elderly burnt to death in that room, never seen after the
17 night of the fire. The evidence of Mr. --
18 JUDGE ROBINSON: Mr. Ivetic, are you saying that's a
20 MR. IVETIC: Yes, I am, Your Honour.
21 JUDGE ROBINSON: In what respect?
22 MR. IVETIC: There's been no testimony that -- or foundation laid
23 that the fire that enveloped the upper levels of this house was related
24 to the alleged incident that these witnesses testified to, Your Honours.
25 MR. ALARID: And I would add, Your Honour, just with regards to
1 65 women, children, and elderly, the witnesses of those referenced by
2 Mr. Groome vary greatly on whom they identified as being part of the
3 group, and that is one of our issues with regards to proper victims or
4 alleged victims being named in this case.
5 JUDGE ROBINSON: Mr. Groome.
6 MR. GROOME: Do you want me to respond to that, Your Honour,
7 or ...
8 JUDGE ROBINSON: Yes. Yes.
9 MR. GROOME: Your Honour, I'm asking him to focus on the basement
10 room, although there has been testimony that not only with the upper
11 floors but the two Memic houses were burned that night, but I'm just
12 asking the witness about the bottom floor. With respect to the exact
13 number of witnesses, I'll leave that to the Chamber. I thought I was
14 being fair.
15 Q. But let me just reword it, sir. A substantial, substantial
16 number of women, children, and elderly, seven people say died in the room
17 where you say no fire occurred. Now, it's just simply irreconcilable;
18 either those witnesses are deceiving this Chamber or you and Mr. McCoy
19 are. Do you fully appreciate the predicament that your evidence now
20 places us in?
21 A. Yes, I do, and I utilised some of the witness statements to add
22 into what I was finding.
23 Q. Okay. Well, I sat here Friday when Mr. McCoy was telling us that
24 there was apparent smoke damage on these walls, and I could not see none,
25 and I still could not see any. And I thought I had to make a choice
1 between believing Mr. McCoy and now believing you and believing my own
2 eyes. So I went down over the weekend with some investigators. I want
3 to show you some of the material that we brought back and some of what we
4 saw when we went down there.
5 I'm going to ask that you look at two video-clips, and I'm going
6 ask that we use the Sanction system.
7 JUDGE ROBINSON: Mr. Alarid.
8 MR. ALARID: And this is the point, Your Honour. We've not been
9 provided this in advance, and I believe that the Prosecution had the
10 opportunity to provide this evidence this morning. We had a late day.
11 There's no excuse for it not being provided in advance of the testimony.
12 And what I'm objecting to, Your Honour, is in basic principle is we have
13 an instance where a homicide case, the Prosecution has chosen to present
14 its forensic examinations in rebuttal?
15 In what jurisdiction can that be proper where no forensic exam is
16 done and they're only doing it in response to us taking trained people
17 down there? At the very least, Your Honour, the witness should have had
18 an opportunity to review these photographs this morning. Concurrent to
19 that, Your Honour, no foundation and proper foundation has been laid on
20 this, and this violates the rules of disclosure. Thank you. And we
21 still don't have them, Your Honour.
22 JUDGE ROBINSON: What do you mean you still don't have them?
23 MR. ALARID: They have not been produced to us. We have received
24 no disks or the usual methods of giving us our copy.
25 JUDGE ROBINSON: You have still not received them?
1 MR. ALARID: No. What he's going to show --
2 JUDGE ROBINSON: Let's let him deal with that point first.
3 Mr. Groome.
4 MR. GROOME: They're all in e-court. Your Honour will recall the
5 ruling at the pre-trial conference. Upon cross-examination, the party is
6 to notify the other party about what exhibits it seeks to use. I walked
7 in this morning with these exhibits. They were -- we went down over the
8 weekend. I would note that exhibits used with this witness were
9 disclosed to me this morning, although also on the same pre-trial
10 conference. We were required to disclose those to each other 48 hours in
11 advance, so I am several days late on that. If I could finish my remark.
12 MR. ALARID: That was your exhibit we used, Mr. Groome.
13 MR. GROOME: Your Honour, the providence of where the exhibit
14 came from is not the issue. The other party is to be notified 48 hours
15 in advance of when before an exhibit is used with a witness. These were
16 recently collected. I've complied with the Chamber's pre-trial
17 conference ruling. I've made them available during the break for
18 Mr. Alarid. They're all put out on the table here. He walked over, took
19 a cursory look, and walked back to his desk. He had a full opportunity
20 throughout the entire break to look at the exhibits here. They've been
21 out since the beginning of the break --
22 JUDGE ROBINSON: Let me consult the Trial Chamber's order on this
23 as to when notice to be given by the cross-examining party.
24 MR. ALARID: Your Honour, we assumed that we'd also be
25 provided -- notice is one thing, but we were never provided the actual
2 MR. IVETIC: And they are not in e-court and the e-mail that we
3 received says we don't have reference numbers for these videos materials,
4 so, therefore, Your Honours, they have never been tendered to us in any
5 format whatsoever.
6 [Trial Chamber confers]
7 JUDGE ROBINSON: So they are in e-court?
8 MR. IVETIC: They are not in e-court. We have not been provided
9 any reference numbers for them. We have not been provided copies of
11 JUDGE ROBINSON: Mr. Groome, you told me they are in e-court.
12 They say they are not in e-court. What's the position?
13 MR. GROOME: I'm sorry, Your Honour. They're in Sanction. It's
14 a different system. So I stand corrected, Your Honour.
15 MR. IVETIC: Sanction is an OTP-only system not available to
16 either the Defence or the Registry, is my understanding.
17 JUDGE ROBINSON: This is what we're going to do. We have 40
18 minutes until the end of the session. We are going to adjourn now.
19 We're going to resume in the morning, and the Defence will be given the
20 opportunity to look at these -- is it tapes?
21 MR. GROOME: Yes, Your Honour. I don't believe the same right
22 extends to the witness, so I would ask that the witness again because
23 he's in the middle of his testimony not have communication with anyone
25 MR. ALARID: And Your Honour, we would ask to be able to provide
1 these to the witness. I mean, it's not -- the Prosecution's already
2 asked Mr. McCoy to look at things overnight.
3 JUDGE ROBINSON: You can look at them but not the witness, he
4 will show the witness them in court. That's a ruling.
5 MR. ALARID: He's an expert, Your Honour. He is not of the
6 same --
7 JUDGE ROBINSON: We'll adjourn until tomorrow morning.
8 --- Whereupon the hearing adjourned at 6.28 p.m.
9 to be reconvened on Tuesday, the 24th day of March,
10 2009, at 8.50 a.m.