Tribunal Criminal Tribunal for the Former Yugoslavia

Page 74

 1                          Tuesday, 6 February 2007

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused is not present]

 5                          --- Upon commencing at 2.58 p.m.

 6            JUDGE ROBINSON:  Will the registrar call the case, please.

 7            THE REGISTRAR:  Good afternoon, Your Honour.  This is case number

 8    IT-04-81-PT, the Prosecutor versus Momcilo Perisic.

 9            JUDGE ROBINSON:  I see that the Prosecution is not here.  Are we

10    early?

11            Let me hear the appearances from the Defence.

12            MR. CASTLE:  James Castle, and Tina Drolec, who is my case

13    manager, is also present.

14            JUDGE ROBINSON:  Thank you.

15            This is a Status Conference that is being held pursuant to Rule

16    65.  We have a number of matters to consider.

17            I see the Prosecution is just arriving.

18                          [Prosecution counsel enter courtroom]

19            JUDGE ROBINSON:  We have a number of matters to consider, and I'll

20    proceed to deal with them.

21            First on the list is the matter of motions.  There is a motion

22    that was filed by the Defence to strike certain expert witness reports and

23    that was disposed of by the Chamber on the 2nd of February.

24            There is outstanding a motion by the Defence for appointment of an

25    amicus counsel to report to the Chamber on equality of arms.  The

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 1    Prosecution is to file a response on this matter, and the Chamber will

 2    give its decision shortly.

 3            I turn next to disclosure issues.  Rule 66(A)(i), material

 4    supporting the indictment.

 5            Mr. Harmon, what is your position in relation to this and in

 6    particular to the question of Rule 70 witnesses?

 7            MR. HARMON:  In respect of the Rule 66(A)(i) supporting material,

 8    we have disclosed the materials.  In respect of Rule 70 witnesses, which

 9    was the subject of a motion, we have addressed that issue in a private

10    correspondence with Defence counsel.  There are certain witnesses.  Let me

11    just pull the motion up, Your Honour.

12            JUDGE ROBINSON:  Incidentally, let the record show that Mr. Harmon

13    and Ms. Somers, along with ...?

14            MR. HARMON:  Carmela Javier, the case manager.

15            JUDGE ROBINSON:  Yes, appear for the Prosecution.

16                          [Prosecution counsel confer]

17            MR. HARMON:  Your Honour, could we return to that matter?  There's

18    some discussion amongst the Prosecution side.  I need to clarify a certain

19    issue on that and I will return to that matter.

20            JUDGE ROBINSON:  All right.  I'll come back to it.  But the

21    position, really, is that your 65 ter list is due on the 19th of February,

22    so that if you have not discharged this obligation, it will have to be

23    discharged by that time, the 19th of February.  So we can deal with it in

24    that way.

25            MR. HARMON:  That's fine.  Thank you, Your Honour.

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 1            JUDGE ROBINSON:  Rule 66(A)(ii), witness statements.  The

 2    Prosecution's preliminary witness list had 366 potential witnesses and it

 3    has indicated that this list is being revised.  The deadline, as I just

 4    said, is the 19th of February.

 5            Can you update us on this, Mr. Harmon?

 6            MR. HARMON:  I can, Your Honour.

 7            First, we are in the process of reassessing the witnesses who

 8    appeared on that provisional list of witnesses.  We are in the process of

 9    eliminating a significant number of those witnesses which we will reduce

10    the amount of time required.

11            The Defence and the Prosecution have entered into some

12    agreements.  Those were the subject of a previous 65 ter Conference, not

13    this most recent one that occurred yesterday but earlier.  As a result of

14    that, that also resulted in the elimination of a number of witnesses,

15    albeit mostly victims from the Srebrenica killings and the massacre sites

16    that are identified in the attached schedule dealing with Srebrenica.

17            I would say, Your Honour, that the Defence and the Prosecution

18    work well together in terms of trying to achieve agreements and in terms

19    of attempting to streamline this case.  We are united in our desire to

20    streamline this case.  That results in discussions that are continuous.

21    Attempts to reach future agreements, albeit that has been blocked at the

22    moment, and we can discuss that with Your Honour shortly.

23            But in terms of the disclosure of these witness statements to the

24    extent that we identify new witnesses who naturally fill the void as a

25    result of agreements or some disagreements, we will identify them.  They

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 1    will appear on our 65 ter witness list and we will disclose all statements

 2    of those witnesses by the 19th of February, to the extent that we are able

 3    to do so.

 4            There are some witness statements, I must add, Your Honour, that

 5    we are still attempting to get, and there are some documents we are still

 6    attempting to get.  It will not appear in our 65 ter lists that

 7    accompanied the brief.  In respect of certain documents, we have, for

 8    example, requested -- we have an agreement with Serbia, and that agreement

 9    permits us to go into the archives and examine certain documents, archival

10    materials.  We've done that.  Well before November we did that.  We

11    identified, for example, in excess of 1.500 relevant documents.  And by

12    the agreement that we have with the Republic of Serbia, we then marked

13    those documents.  We identify them in a way that the Serbian authorities

14    could quickly identify those documents.  By agreement, they are supposed

15    to send those to us.  We have right now in one -- in one request, we've

16    identified 1.500 documents.  We made that request to obtain those

17    documents in November.  We haven't received those documents.

18            Now, the failure to receive those documents are not a result of

19    inaction by the Office of the Prosecutor but a result of a slow response,

20    in my submission, by the authorities of the Republic of Serbia, and that

21    impacts --

22            JUDGE ROBINSON:  Well, why haven't you filed a motion under 54

23    bis?

24            MR. HARMON:  Because we anticipate we will receive those

25    documents.  I think what has happened, Your Honour --

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 1            JUDGE ROBINSON:  But this is from November.

 2            MR. HARMON:  That's correct, Your Honour.

 3            JUDGE ROBINSON:  And the case is to be ready by the end of April.

 4            MR. HARMON:  Your Honour, I can't expect, in the course of seeing

 5    the pace at which Serbia responds to our request -- sometimes they're very

 6    slow.  At some point in time, Your Honour, I think Your Honour's

 7    suggestion is one I will take up.  I will pursue that.  But at this point

 8    I have no reason to believe they won't submit those to me.

 9            Where I have a difficulty, as a practitioner before this Court,

10    trying to comply with the Court's orders, is the following:  Those are

11    relevant documents.  That's evidence that's relevant to the Trial Chamber

12    that will hear this case.  My ability to, first of all, identify

13    completely the documents that will be exhibits in this case is hamstrung

14    by Serbia's slow response.  My expert reports, in particular one that has

15    been the subject of a motion by Your Honour, General Degeratu, those are

16    relevant documents that could affect his judgements and his opinions.  My

17    ability to disclose those documents to the Defence is hampered.

18            Now, the Defence lawyer and I, Mr. Castle and I, spoke about this

19    problem today, and I think Mr. Castle is very understanding in respect of

20    those difficulties, and --

21            JUDGE ROBINSON:  All of this arises from the slow response?

22            MR. HARMON:  It does, Your Honour.

23            JUDGE ROBINSON:  But it seems to me that that is all the more

24    reason why you should resort to the compulsive procedure under Rule 94

25    bis, having made your efforts and not having been met with success or with

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 1    as favourable a response as one would expect.

 2            MR. HARMON:  I certainly agree with Your Honour's impulse.  If

 3    Your Honour please, I will discuss that with members of my team and we may

 4    well pursue a motion --

 5            JUDGE ROBINSON:  I'm not saying it will be granted, but it will

 6    certainly be considered.

 7            MR. HARMON:  I understand, Your Honour.  Thank you.

 8            JUDGE ROBINSON:  Yes, Mr. Castle.

 9            MR. CASTLE:  Yes, Your Honour.  I believe that there is a very

10    good flow of production of the statements, which I think is the issue

11    we're dealing with right now, the witness statements.  I understand the

12    problems the Prosecution has had with regard to these additional 1.500

13    documents.  To be very frank with the Court, I have enough work to do

14    without even getting those 1.500 documents; that if they were produced

15    today, I'm not sure I would get to them in any kind of full analysis prior

16    to the deadline for case-readiness.

17            In that regard, what I've indicated to Mr. Harmon is, as long as

18    they're produced within a reasonable time prior to trial that I can use

19    them with any Defence experts, then I don't anticipate raising an

20    objection on timeliness.  That's always a fluid concept, what's a

21    reasonable time or what is not.  A lot of it depends on what the documents

22    are, and since I don't know what they are, it's kind of hard to tell what

23    that is.  But I'm satisfied that they're making efforts in that regard,

24    and I think that, you know, if we were a couple of months out from trial,

25    that would be a different issue.  But right now it does not look like it's

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 1    likely the trial will happen in the next two months.

 2            So what I would suggest is that if, down the line, the Defence

 3    feels that it's getting to the point where we're not going to be able to

 4    effectively represent our client because of the delay, I'll file a motion

 5    in that regard.  But I really think that the two parties can work this

 6    issue out.  We have had a number of discussions about it.

 7            JUDGE ROBINSON:  Back to Mr. Harmon.  You have identified 1.500

 8    documents from the archives.  Does this mean that the documents have been

 9    examined by your department?

10            MR. HARMON:  Yes, they have been examined.

11            JUDGE ROBINSON:  Are you able to say whether the documents will

12    generate new witnesses?

13            MR. HARMON:  It's entirely possible, Your Honour.  The procedure

14    is this:  My investigators are permitted to look at these documents.  They

15    aren't permitted to take many notes of these documents; they aren't

16    permitted to copy these documents.  They are permitted to identify them

17    briefly for relevance.  I don't know what's in those documents.  I rely on

18    my investigators assigned to this case who have made assessments and who

19    inform me that each of those documents, each and every one of those

20    documents, is a relevant document.  But I can't say to Your Honour without

21    having seen those documents how many witnesses, if any, those documents

22    will generate.

23            JUDGE ROBINSON:  Well, bear in mind that the Work Plan calls for

24    the case to be ready by the end of April, and I do not intend to change

25    that date.  I do not intend to change that date.  So that is the plan that

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 1    we are working towards.

 2            The management of cases in the Tribunal at this stage has to be

 3    handled very, very carefully, and if a Trial Chamber has set a case to be

 4    trial-ready by a particular date, in my view, it would be very unwise to

 5    change it because we are in a state of relative fluidity, where a case

 6    that is down for trial may not begin and another case needs to be brought

 7    forward immediately.  So I consider it unwise to change the date set in

 8    the Work Plan, which is the end of April.  Certainly not at this stage.

 9    Not at this stage.

10            The next issue is 66(B), inspection of materials.  I understand

11    that the Prosecution has complied with the deadline for the disclosure to

12    the Defence of intercepts relating to Mr. Perisic.

13            Exculpatory material, Rule 68.  Anything on this, Mr. Harmon?

14            MR. HARMON:  We continue to disclose Rule 68 information as we

15    find it, and we identify it according to the Court's previous direction.

16            JUDGE ROBINSON:  Thank you.

17            The 94 bis expert reports largely dealt with by the order of the

18    2nd of February.  I remind the Prosecution that they are required to

19    provide outstanding material related to expert witness reports within 14

20    days of the order made on the 2nd of February.

21            73 bis, reduction of indictment.  On the 20th of November, 2006,

22    the Chamber invited the Prosecutor to propose means of reducing the scope

23    of the indictment by at least one-third.  The Prosecution, in its

24    response, indicated that it declined the invitation but did propose the

25    elimination of counts 5 to 8 in the event that the Trial Chamber orders a

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 1    reduction.  Counts 5 to 8 are limited to the shelling of Zagreb.

 2            I will not make an order under Rule 73 bis (D) until the

 3    Prosecution has filed its witness list on the 19th of February, because to

 4    do so in the absence of the witness list would result in an order which

 5    does not have a very sound foundation.  So once we have the Prosecution's

 6    witness list on the 19th of February, the Chamber will proceed to consider

 7    and will, in due course, make the order under 73 bis (D).

 8            I understand, Mr. Harmon, that you also have some changes to the

 9    indictment, some minor changes.

10            MR. HARMON:  That's correct, Your Honour.  At a 65 ter Conference,

11    two 65 ter Conferences ago, I raised those in the conference.  I

12    identified what they are, and I will -- I'm prepared to file an amended

13    indictment, but I want to reserve doing so until we finish the process

14    we're undergoing right now.

15            The indictment amendments are quite minor.  I recall one is the

16    addition of a line that was missing in the English version but present in

17    the B/C/S version and in the French version.  The text was inadvertently

18    omitted.  Another is a change of a date from the 2nd of June to the 6th of

19    June to make it more accurate.  So these are very minor additions.

20            There may be one or two others, but they're very, very minor, and

21    there would be no prejudice to the accused that is substantive that would

22    result in the Court finding a different interpretation.  So --

23            JUDGE ROBINSON:  This is the second or third exercise that I've

24    been involved in under 73 bis (D), and the practice seems to be developing

25    of dealing with these minor amendments at the same time as the reduction

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 1    of the indictment.  So no doubt we will be in a position to do the same

 2    here.

 3            MR. HARMON:  All right.  Thank you.

 4            JUDGE ROBINSON:  The 92 bis procedure.  According to the Work

 5    Plan, the 19th of February is the deadline by which the Prosecution is to

 6    indicate with respect to each 92 bis witness whether it believes the

 7    witness should appear for cross-examination.  Also, the Work Plan sets the

 8    2nd of April as the deadline by which the Prosecution must file a motion

 9    proposing any 92 bis witnesses and applying for their admission.  I

10    understand that the parties may have some submissions on this.

11            Mr. Harmon, anything?

12            Well, if I can prod you, I understand that the date of the 2nd of

13    April might have been problematic for both of you.

14            MR. CASTLE:  Yes, Your Honour, if I can address.

15            JUDGE ROBINSON:  Yes.

16            MR. CASTLE:  What the parties are trying to do is to come to

17    agreements on a lot of the statements that the Prosecution would normally

18    offer as 92 bis statements.  Our objection to 92 bis statements is well

19    known and it has been previously filed.  But to the extent that we can,

20    we're trying to eliminate that issue.  Along with that, it would eliminate

21    the filing of 92 bis motions on behalf of the Prosecution and the

22    responses that would come from our side.

23            At this point in time, what we think is wiser to do with regards

24    to those potential 92 bis witnesses is to list them as 92 ter witnesses,

25    give the parties an opportunity to try to negotiate and resolve that

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 1    issue.  To the ones that we are not able to come to agreement on, at that

 2    point have the Prosecution file their 92 bis motions; in that regard we

 3    would respond.  We don't believe that by giving us that extra time the

 4    Defence would be prejudiced in responding to the 92 bis motions.

 5            We're proposing to do that after, I guess, the woods clear a

 6    little bit in April, perhaps after the Court has made a ruling on the

 7    reduction of the indictment and some other matters.  It gives us some time

 8    to work on that issue.  So we're suggesting a later date on that, after

 9    trial-readiness.

10            JUDGE ROBINSON:  But if the Prosecution is supportive of that

11    application to extend the time, I'm prepared to extend it to Thursday, the

12    12th of April.

13            MR. HARMON:  We are certainly supportive of that, Your Honour.

14            JUDGE ROBINSON:  Okay.  Thank you.

15            Adjudicated facts.  According to the Work Plan, the 19th of March

16    is the deadline for the parties to reach agreement on matters of law and

17    fact and to inform the Chamber of such agreement or disagreement together

18    with reasons, and a comprehensive joint submission is to be filed on that

19    date.

20            Mr. Harmon.

21            MR. HARMON:  Your Honour, just so that you're informed, we have

22    filed -- and I've informed Mr. Castle as well, we filed today, or will be

23    filing today before 4.00, a motion on adjudicated facts for the crimes in

24    Sarajevo.  The purpose of that is to attempt to reduce the scope of this

25    case.  It's our position - the Defence has not seen a motion - but it's

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 1    our submission that the granting of that motion -- and I don't want to

 2    have the Judges pre-determine the merits of the motion, but if that motion

 3    is granted, it's our position that it will result in a significant

 4    reduction in the scope of the trial.

 5            I want to add, Your Honour, that the Court has expressed - and we

 6    clearly understand - the desire of this Chamber to reduce the scope of the

 7    indictment, and we have endeavoured to do that.  The Defence team and the

 8    Prosecution share those goals and we work, I would say, well together.

 9            At a 65 ter Conference that took place - I don't have the date,

10    but it was two 65 ter Conferences ago - we filed with the senior legal

11    officer a document in respect of schedule, I think it's, C dealing with

12    the crimes in Srebrenica where the parties reached agreements.

13            We are in a position to continue to try to reach those agreements,

14    and we have been in that position but we have had a difficulty - I will

15    let Mr. Castle expand on that - where we have a log-jam right now, and the

16    log-jam is the result of -- I'll let Mr. Castle more clearly explain it

17    because the log-jam is a result of something that is from General

18    Perisic.  Once that log-jam clears, I believe very sincerely that we will

19    have the ability to reduce this trial significantly.

20            I have been in three trials myself, the longest being 31 months,

21    the shortest being 17 months.  I don't particularly care to be in another

22    long trial, Your Honour.  I think that both Mr. Castle and I share the

23    concept that what should be tried in this case are matters that are

24    genuinely in dispute.  Reduce away the crime base evidence, reduce away

25    the matters that aren't contested, and let's focus this case very narrowly

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 1    on issues that are contested.  That's the direction where we were headed,

 2    and I think Mr. Castle will confirm that.  That's the direction where we

 3    were headed in, and we have the capacity, I think, to continue in that way

 4    but for this log-jam.

 5            I say that because I want Your Honour to know that there's no

 6    disagreement with anybody in this courtroom in trying to reduce the size

 7    of this case.  But if I may yield the floor to Mr. Castle, perhaps he can

 8    clarify even further the issue.

 9            JUDGE ROBINSON:  Thank you.  As far as long trials are concerned,

10    I was in one that lasted four years and had no conclusion.

11            MR. HARMON:  I understand, Your Honour.

12            JUDGE ROBINSON:  Yes, Mr. Castle.

13            MR. CASTLE:  We share the same interest.  The problem is that, on

14    behalf of my client, we'd like to see something that would reduce the

15    exposure of our client in addition to reducing the amount of proof

16    necessary for the Prosecution.  What's difficult is coming up with a nice

17    mix that satisfies all sides.

18            We've had discussions since the 65 ter Conference yesterday

19    between us, and I understand that Prosecution's concern is that perhaps

20    the reduction in scope of the case will be solely -- will solely take the

21    form of the elimination of counts and perhaps counts outside of Zagreb.

22    Our concern is that the reduction in the scope of the trial would only be

23    in the amount of proof necessary but for the Prosecution and not in any

24    exposure.

25            So I would like to see the indictment reduced as much as

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 1    possible.  However, I'm not sure that that would actually reduce the

 2    length of the trial necessarily.  So if that's the goal, I think that the

 3    parties, if the Court were, after reviewing the materials submitted on the

 4    19th of February, were to dismiss the Zagreb counts in its wisdom, that

 5    the parties are likely to resolve reducing the length of the trial by a

 6    significant portion voluntarily through agreements between us, that it

 7    would benefit both sides.

 8            I hope the Court understands what I'm suggesting here.

 9            JUDGE ROBINSON:  If I understand, what you're saying is that the

10    Prosecution and yourself may voluntarily agree on the reduction --

11            MR. CASTLE:  On the reduction of the length of the trial.  I don't

12    think we're going to have agreement on -- a voluntarily agreement on the

13    reduction of the Zagreb counts.  But I think that's awaiting Your Honour's

14    decision.

15            JUDGE ROBINSON:  All right.  Well, when we have all the necessary

16    information on the 19th of February, we'll address the issue.  But I thank

17    both parties for the attention that they are giving this matter.

18            I have already dealt with the Prosecution's pre-trial brief and 65

19    ter (E) material, including witness an exhibit lists, which are to be

20    filed on the 19th of February, and according to the Work Plan, the 2nd of

21    April is the deadline by which the Defence must file its pre-trial brief.

22            The date that has been set by the relevant authorities for the

23    start of the trial is somewhere around January of 2008, but already we are

24    being told that it may be more likely to be October or November 2007.

25    That is one of the reasons why I do not intend to change the date set in

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 1    our Work Plan.

 2            We've already spoken about the anticipated length of the trial.

 3            You have indicated, Mr. Harmon, I think at a 65 ter Conference

 4    that the trial is expected to last 17 months but could be reduced to 12

 5    months.

 6            MR. HARMON:  I stand by that assertion, Your Honour.

 7            JUDGE ROBINSON:  Okay.  Is there any other matter that the parties

 8    wish to raise?

 9            MS. SOMERS:  Your Honour, if I may --

10            JUDGE ROBINSON:  Ms. Somers.

11            MS. SOMERS:  Thank you, sir.  If I may be able to clarify the

12    issue of that Rule 70 document that I believe Your Honour was referring

13    to.  It had dogged us, I think, since even Mr. Stamp's days.  There was

14    one document in the confirming materials that had not been the subject of

15    a provider approval.  That remains the situation.  Mr. Harmon was not

16    aware of that.  If I'm understanding you correctly, when you asked the

17    question, it was about 68(A)(i) supporting material.  Is this what Your

18    Honour had in mind?

19            JUDGE ROBINSON:  Yes.

20            MS. SOMERS:  There is no change in that.  That document will not

21    be relied on.

22            JUDGE ROBINSON:  Thank you.

23            Anything else, Mr. Castle?

24            MR. CASTLE:  Two things.  First is the comment about the length of

25    the trial.

Page 89

 1            The parties have discussed the length of the trial we know that

 2    there generally is a desire of the Tribunal to cut the length of trial

 3    sometimes by a third from what the parties predicted.  The year estimate

 4    is the thought of what this case could be tried at in its leanest, after

 5    all cuts are made not before.

 6            I bring that up just because the nature of the charges here are

 7    very complicated.  It's very expert-intensive and it's just -- I just

 8    don't want our efforts at voluntarily reducing this case to be forgotten

 9    when it comes time for the Chamber to decide the length of the trial.  And

10    I just bring those comments to Your Honour's attention.

11            The second issue.  I know that we'd already filed the motion

12    concerning the appointment of amicus, and I'm not asking the Court to take

13    that up at this time.  But I would remiss if I did not inform Your Honour

14    that the lack of Defence resources will have an impact in other areas of

15    this case, such as my efforts to work things out with Mr. Harmon and the

16    Prosecution.  That takes time; it takes effort.

17            JUDGE ROBINSON:  Have you filed a review of this by the President?

18            MR. CASTLE:  Yes, I have, but I need to bring it to Your Honour's

19    attention.

20            JUDGE ROBINSON:  Yes.

21            MR. CASTLE:  One of the problems with the review is that all of

22    that -- everything that happens at a Rule 65 ter Conference, everything

23    that happens when I file a motion, is not transparent; it's, by its

24    nature, filed, it being reviewed by Your Honour or by the public.  And I

25    have to be very frank with this Court that I'm having a heard time being

Page 90

 1    effective in this case, being able to represent my client effectively,

 2    with the resources that have been provided, and it's go to affect things

 3    if that doesn't change.  It's going to affect the quality of our opening

 4    brief; it's going to affect the kinds of witnesses that we're able to

 5    call, the experts and everything.

 6            I'm bringing it to the Court's attention.  I will continue to

 7    update the Court as we go along.  But we have very major concerns about

 8    that, and we're trying in every avenue to improve that situation, but it's

 9    a concern that I have.

10            JUDGE ROBINSON:  Well, the Chamber, I can assure you, will do

11    everything within its power to ensure that you're adequately funded.

12            MR. CASTLE:  I appreciate that, Your Honour.

13            JUDGE ROBINSON:  Is there any matter, Mr. Castle, that you wish to

14    raise in relation to the accused?  This is a Status Conference and

15    normally an inquiry is made about his health, if there are any matters

16    that he might have wanted to raise.  I know that he is absent and I know

17    why he is absent.

18            MR. CASTLE:  We have filed a waiver of his presence.  No, he is in

19    good health.  I think his only concern is based upon what I last raised to

20    the Court.

21            JUDGE ROBINSON:  And you say that that might be affecting his

22    health, too?

23            MR. CASTLE:  No, no, it's not affecting his health, but it may.

24    It may affect my health is what it might affect, more likely.

25            JUDGE ROBINSON:  Well, thank you very much.

Page 91

 1            The question of the next Status Conference doesn't arise because

 2    the Pre-Trial Conference is April the 23rd.  But I understand that the 65

 3    ter Conference will take place on the 19th of March.

 4            If there is no other matter to be considered, the hearing is

 5    adjourned.

 6                          --- Whereupon the Status Conference adjourned

 7                          at 3.38 p.m.