1 Thursday, 12 July 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE AGIUS: Good morning and good day to everyone. Madam

6 Registrar if you could call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

9 JUDGE AGIUS: All the accused are here. Defence teams, I only

10 notice the absence of Mr. Ostojic. Prosecution I see Mr. McCloskey and

11 Mr. Nicholls.

12 So Ms. Nikolic, can you report progress on the Rule 68 motion?

13 MS. NIKOLIC: [Interpretation] Yes, Your Honour. The material we

14 expected yesterday has not arrived yet. I've just talked to Mr. Nicholls,

15 and he told me that the disclosure of these documents could be expected by

16 the end of the day today. I hope that will happen. Thank you.

17 MR. NICHOLLS: It will be before that, Your Honour.

18 JUDGE AGIUS: Okay. Because we had that statement yesterday. We

19 had that statement the day before. Let's close, let's finish this

20 symphony, please.

21 MR. NICHOLLS: It's done, Your Honours. There are four documents

22 similar to the ones that have been disclosed before. I'm told the labels

23 are being put on the CDs right now.

24 JUDGE AGIUS: And my understanding, if I understood you well,

25 yesterday is that if this is done to your satisfaction then you withdraw

1 the motion, Ms. Nikolic?

2 MS. NIKOLIC: [Interpretation] Yes, Your Honour. In that case we

3 will withdraw our motion and continue to do the investigation. We also

4 detected some problems with translation yesterday, but I hope they will be

5 resolved too.

6 JUDGE AGIUS: Okay. Later on we will let you know our decision in

7 relation to the same witness, PW-108, but you will get the decision today

8 communicated to you.

9 So yesterday we just started debating the second point that we

10 communicated to you in relation to the admissibility issues on the

11 Borovcanin interview, and the second point is the following, I will repeat

12 it: If the Trial Chamber were to determine that the evidence should have

13 probative value with respect to the other accused, what would be the

14 permissible scope of the submissions on and cross-examination of

15 Witness number 3 - that's Alistair Graham - by the other accused at the

16 stage of the proceedings where admissibility is to be determined.

17 If I remember well, you had very succinctly dealt with this and I

18 think it was determined -- do you wish to say anything? I think Mr.

19 McCloskey had stated something and very briefly, and I'm not quite sure

20 whether he had finished or not.

21 MR. McCLOSKEY: I had pretty much finished, but of course giving

22 someone time to think over it over the evening is always dangerous, but I

23 don't really have much else to say, though I do -- I would request that

24 the-- the Trial Chamber have the opportunity to hear the -- the interview

25 before making the decision about whether or not it would be admissible

1 against the other accused. I think that's what you had in mind, but it's

2 from this question that's a little bit unclear.

3 JUDGE AGIUS: All right. Who from amongst the Defence teams would

4 like to address this issue, the second question? Mr. Zivanovic?

5 MR. ZIVANOVIC: I have nothing.

6 JUDGE AGIUS: All right. But I suppose those who are more

7 directly or indirectly exposed to this might have.

8 Mr. Meek?

9 MR. MEEK: Thank you, Mr. President. In the event that we get to

10 that point, then I believe that all accused should have the right to fully

11 examine and -- Mr. Graham and make any submissions they feel appropriate.

12 Thank you.

13 JUDGE AGIUS: Yes, Ms. Nikolic or Mr. Bourgon.

14 MR. BOURGON: We take the same position, Mr. President. Thank you.

15 JUDGE AGIUS: Mr. Lazarevic or Mr. Stojanovic.

16 MR. LAZAREVIC: Well, Your Honour, it is very ungrateful to speak

17 because it relates to the rights of the other accused. So I will take no

18 position in this respect. I don't think it would be correct from our

19 point to -- to talk about rights of other accused to examine the witness.

20 JUDGE AGIUS: Okay, but we haven't read the statement of course,

21 we're not aware of its contents, but I have come across in my career many

22 statements which have their pluses and their minuses, statements which

23 could damage the accused making them to some extent and also help the case

24 in others. So you may have an interest to have it admitted in the one

25 context and have the interest in having it thrown out, and that's a

1 decision, of course, that you will take. So the submissions by others may

2 become relevant to you too. Unless, of course, you are all for having it

3 thrown out, declared inadmissible, in which case the submissions of others

4 might help you.

5 MR. LAZAREVIC: Your Honours, I do hope that that's the situation

6 with all the Defences here today, all would like this statement to not to

7 be added into evidence.

8 JUDGE AGIUS: All right. Thank you.

9 Madam Fauveau?

10 MS. FAUVEAU: [Interpretation] Mr. President, my position is the

11 same as that of my colleague, Mr. Meek.

12 JUDGE AGIUS: Thank you. Mr. Josse or Mr. Krgovic?

13 MR. JOSSE: Well, I enunciated our position yesterday in this

14 regard, Your Honour. I stand by the submissions I've made. I accept

15 them. What I contended yesterday was taking matters to their logical

16 extreme, but in my submission it really is a black and white situation.

17 If the interview has evidential effect against the co-accused, the

18 co-accused are entitled to challenge it totally and in any proper

19 procedural form.

20 JUDGE AGIUS: Okay. Thank you, Mr. Josse. You have crystallized

21 it probably.

22 Mr. Haynes.

23 MR. HAYNES: Yes, very little to add. The question you ask is

24 what would be the permissible scope, to this extent I do agree with

25 Mr. McCloskey. The permissible scope of the involvement of the co-accused

1 would be to challenge the admissibility of the interview and nothing

2 more. It would not be a general troll through the evidence of Mr. Graham.

3 The one thing I think is absent from your question is that in my

4 submission the other accused would have the right to call evidence on voir

5 dire if they thought there was any that would be relevant. I suppose

6 somebody might want to call Mr. McCloskey, but there it is. But I think

7 the scope of the involvement of the others does include the calling of

8 evidence as well if relevant.

9 JUDGE AGIUS: Okay. Yes, Mr. McCloskey.

10 MR. McCLOSKEY: Just on more of a procedural issue. The way I

11 would see this happening is that if -- if the initial issue is one of

12 voluntariness. This is not something that I would plan on providing any

13 information from the interview itself, the content of the interview. It

14 would be left to issues of voluntariness which are pretty simple, pretty

15 straightforward. They don't involve -- it will be probably five minutes

16 of direct, and if it's very legal in nature, and in that particular case

17 that is mostly a situation for Mr. Borovcanin's counsel. And as I said

18 yesterday, I do not object if there are legal issues related to other

19 accused. If they announce what those legal issues are. They are able to

20 cross-examine on those issues.

21 Now, after if it's found to be voluntary, if we've met our burden

22 and the it's played or it's admitted one way or another, then it will

23 clearly be in a situation where we now have this document. It will affect

24 the rights of the others and then cross-examination becomes a much more

25 wide-open issue for Alistair Graham. And so that's how -- I'm going on my

1 old experience, but that's how I think it would be best worked out,

2 because otherwise if -- if the wide-open questioning begins in the early

3 stage you don't really have the transcript or the interview to deal with

4 unless there's something specific to voluntariness in the transcript,

5 which then it's fine. But that's the -- that's what I would suggest as --

6 as one option on how to do this so that we can get the voluntariness

7 issue, which is very specific, out of the way and then get into the more

8 substantive issues of the interview.

9 JUDGE AGIUS: Does anyone wish to comment on that? All right. I

10 think we can now -- yes, Madam Fauveau. I'm sorry.

11 MS. FAUVEAU: [Interpretation] Mr. President, I'm completely in

12 agreement that it's a very specific situation. However, according to the

13 Rules of Procedure and Evidence, for a piece of evidence to be admissible

14 it must have probative value. The probative value does not depend only on

15 the voluntariness of any acts of the suspect at the time when he gave that

16 interview or his will alone. It depends also on many other things such as

17 the credibility of evidence. I can see the reasoning of the Prosecutor,

18 but I don't think it is completely consistent with the Rules of Procedure

19 and Evidence in this Tribunal. I believe we have -- we ought to have the

20 right to test the credibility of this evidence, of this interview, the

21 veracity of its contents, before it is admitted.

22 JUDGE AGIUS: One moment Mr. McCloskey. Judge Prost.

23 JUDGE PROST: Madam Fauveau, are you suggesting then that prior to

24 admitting the tape we should listen to the entire contents of the tape as

25 a means of determining its probative value?

1 MS. FAUVEAU: [Interpretation] No, Your Honour. I believe that

2 certain questions concerning the veracity of the contents can be

3 determined without listening to the interview.

4 JUDGE AGIUS: Yes, Mr. McCloskey.

5 MR. McCLOSKEY: Should you find that the interview was given

6 freely and voluntary, I have no objection to it merely being marked as an

7 exhibit until it's played and cross-examination is done before you make

8 your decision whether it's admissible into Mr. Borovcanin and that I don't

9 think is any problem. And then as for the issue of whether it's

10 admissible against the other accused, I would hope that everyone would

11 have a chance to brief that more fully.

12 JUDGE AGIUS: Yesterday I think we made this clear in the first

13 part of the debate in which we stated that without prejudice to the issue

14 of redactions to be dealt with in due course for the purpose of this stage

15 both tape and the transcript will be marked for identification. So I

16 think we premised that before -- before anything else.

17 MR. McCLOSKEY: Yes, that's -- that's what I thought, which should

18 mean Ms. Fauveau's argument doesn't -- isn't a problem for her or anyone

19 else.

20 JUDGE AGIUS: Which doesn't mean to say - I don't want to mislead

21 anyone - it don't mean to say that we will, as soon as these are tendered

22 and marked for identification, that we will jump into reading them if

23 there is no need for us to read them.

24 [Trial Chamber confers]

25 JUDGE AGIUS: We'll tell you what we think, and we are unanimous

1 on that, well nearly, when we come to it, Madam Fauveau.

2 Let's move to the third question. If instead we were to determine

3 that this piece of evidence should have no probative value with reference

4 to the other accused, should passages in the interview itself purporting

5 to contain evidence against the other accused be reacted?

6 Mr. McCloskey.

7 MR. McCLOSKEY: Thank you, Mr. President. Well, the answer to

8 number 3 is no. And as I have divided the interview into three parts, the

9 background, the facts associated with the crimes and acts or conduct of

10 the accused, I believe your question is mostly directed at acts or

11 conducts of the accused. You wouldn't, I don't feel a need to redact one

12 or two.

13 JUDGE AGIUS: I think I would stick to that, but you're the one

14 who addressed the Trial Chamber yesterday and referred to three

15 different -- three different issues. So I think what I would suggest is

16 that you submit to the Trial Chamber what you feel you ought to submit.

17 MR. McCLOSKEY: Thank you, Mr. President. I --

18 JUDGE AGIUS: Because this is a complex area.

19 MR. McCLOSKEY: Yes. I divided it into three areas, as I think

20 we've discussed briefly, as the three different kinds of hearsay, and as

21 we know in 92 bis and our regular hearsay rules don't have a problem

22 really with the first two kinds of -- of hearsay being admitted against an

23 accused. So it's the third kind, the acts or conducts of the accused

24 that -- that is the most serious issue here, and so I would say of course

25 not. You would of course not want to redact the categories one and two.

1 That would make -- well, that would redact the entire interview and make

2 it useless for -- for any purpose. So I think then we need to look at the

3 acts or conducts of the accused that are mentioned in that.

4 Now, I think for this analysis you need to actually fully read and

5 understand those references, but I don't -- for the purposes of today I

6 don't think you do, but I think for the final analysis you would want to.

7 And the reason I say that is because if you found that they were basically

8 valueless or not admissible against -- against anyone else, then as is the

9 foundation of the question, then the question becomes if you redact them,

10 then they're not part of the record.

11 The problem with that is then they become valueless against the

12 man that said them. And as you will look at them, when a person -- if

13 Borovcanin mentions an accused, for example, mentions seeing an accused in

14 a particular place like Potocari, this is something I want you to know

15 when you consider Mr. Borovcanin's case; that he is there in Potocari with

16 another accused. So it does have probative value against Mr. Borovcanin,

17 and so redacting it would be inappropriate.

18 JUDGE KWON: Mr. McCloskey, then pausing there. If the statement

19 says, "I saw X in Potocari," what is to be redacted is just X. So the

20 fact that Mr. Borovcanin was in Potocari would not be redacted.

21 MR. McCLOSKEY: But the fact that he was there with -- with X at a

22 crime scene and X is at that crime scene and they're charged as joint

23 criminal enterprises, it's very relevant, something I want this court to

24 know, just as if it was a drug case, I would want you to know that X was

25 seen at -- at the scene of the drug distribution place with Y. That's a

1 huge point. This -- this is no different than any criminal case. It's --

2 in its foundations, and if we have a crime scene, Potocari, I want you to

3 know who is there and who is recognising each other.

4 As -- there is an issue with a meeting as well, though I'm not

5 sure that's even contested by the person it affects, but I think you would

6 need to know that Mr. Borovcanin is at a meeting with another accused, a

7 meeting where issues were discussed, and it may be a hotly contested area.

8 And these things are redacted for juries, Your Honours. This is a

9 jury issue because the law feels that juries cannot separate their

10 emotions from certain facts, and I don't think that's -- that's not a

11 problem this Tribunal has. I don't think there is a lot of lurking jury

12 evidence out there that the Judges are being emotionally swayed by. I

13 don't think that's a problem you will have. And I don't think you want to

14 have these little time bombs in the case, areas that you can't see or

15 can't refer to in your judgement. That's going to make reviewing this

16 case very difficult. And frankly I don't see anything, I don't think

17 you'll see anything in this evidence that is so potentially prejudicial

18 that it's something that you would have a hard time getting out of your

19 mind. It's really -- as I said, Mr. Borovcanin is not blaming anyone, and

20 it's -- but there are references to people that I know you will give it

21 the weight or no weight, if that's what you feel, and I don't -- I don't

22 think that will be a problem.

23 Redacting doesn't really solve any problem. In fact, it would

24 reduce the days against Mr. Borovcanin.

25 JUDGE AGIUS: I thank you, Mr. McCloskey. Who wishes to -- I'm

1 sorry, Judge Kwon, go ahead.

2 JUDGE KWON: There is a practice in the Tribunal, including this

3 Chamber, isn't there, that when we are admitting the 92 bis statement

4 without cross-examination we redact some parts relating to the acts and

5 conducts of the accused.

6 MR. McCLOSKEY: Yes. We just -- we just did that. As a matter of

7 fact, I think the last witness. But that was something that you decided

8 to do prior to the -- prior to the case, and once we brought those

9 witnesses forward it would have been part of the case. And it's hard for

10 me right now to see the similarity between your decision to redact

11 material prior to the case that we would have to deal with and what we're

12 talking about now, because really to redact the material you would have to

13 fully understand what this material was and absorb it; unless you made the

14 decision, which you could, that any reference to any accused should be

15 deleted. And then you wouldn't -- and then we would give you a redacted

16 format, and that wouldn't be something you've considered, but I think --

17 well, I don't know what you would prefer, but I think normally it would be

18 the Judges that would -- would review this material to see if -- if it

19 needed to be excluded.

20 In common law jurisdictions many cases are tried with Judges alone

21 and even in those jurisdictions the Judge would review the material, and

22 if he felt it was not admissible he would set it aside. But he

23 wouldn't -- I don't think it would be appropriate for you to wholesale

24 redact something because there was a reference to it, though

25 that's perfectly within your discretion, I believe, as well.

1 JUDGE KWON: Thank you.

2 JUDGE AGIUS: Perhaps you can answer this question in relation to

3 the question put by Judge Kwon in your answer. Basically if you are

4 resorting to the Rule 92 bis procedure, wouldn't that be tantamount on

5 your part to renouncing to the parts -- to the evidence that would

6 otherwise emerge from the redacted parts? Especially if there is no

7 cross-examination.

8 MR. McCLOSKEY: As I think we just did with a witness. You had

9 decided to react a document that had one of the accused's name on it, and

10 we did not object or take that any further, and we in fact did not even

11 put that document before the witness, and so yes we went along with

12 that -- that process, but that was -- that was for the purposes of 92 bis,

13 for -- to get moving on with the case to -- for efficiency. We didn't

14 think the document was that important. This witness -- that witness on

15 that document didn't have much to say about it. There are other witnesses

16 that had more to say about it.

17 So yes, in a 92 bis situation we would do that, though I don't

18 want to go back in time, I'm still slightly confused that you would have

19 redacted something at the 92 bis stage but require someone for

20 cross-examination.

21 JUDGE AGIUS: Yes, but that's different.

22 MR. McCLOSKEY: It shouldn't be redacted if the person is going to

23 be here for cross-examination.

24 JUDGE AGIUS: But what I'm suggesting is the following as a

25 proposition to which I'll ask you to reply: When you resort to Rule 92

1 bis, you have no guarantee that the Trial Chamber is going to grant

2 cross-examination. In fact that's one provision where the Trial Chamber

3 is free not to decide not for cross-examination if it doesn't feel there

4 is a need for it. And we have on a consensus precisely done that. But

5 Rule 92 bis precludes you from tendering through the 92 bis process acts

6 which go to the -- parts that go to the acts and conduct of -- of the

7 accused as charged in the indictment.

8 So in that case you would be renouncing to the evidence that that

9 testimony or that testimony would otherwise provide you with.

10 MR. McCLOSKEY: We normally did not present evidence for 92 bis

11 that went to the acts or conducts of the accused knowingly. I think that

12 one situation we feel the document really went to acts or conduct, you

13 disagree with us, so you redacted as was your right. That was a rare

14 item.

15 But what is really different in this context and what is the

16 problem with redaction, redacting what a witness has to say doesn't really

17 affect any other -- it doesn't affect the witness because the witness is

18 not on trial. But when you redact something that an accused said which in

19 our view implicates him, then you are take away from the Prosecution's

20 case and actually affect the case. Taking away something an engineering

21 operator may have said about a document, it doesn't affect any

22 particular -- an accused because no accused was saying it, and we're free

23 to bring in that other evidence in other ways if need be.

24 JUDGE PROST: Mr. McCloskey, in essence I take it what you're

25 saying is the distinction between a 92 bis statement and the statement at

1 issue here is that in 92 bis you can redact in its entirety in reference

2 to all the accused, whereas here you have the situation where the evidence

3 remains relevant to one accused and not relevant to the remaining accused.

4 If that's our ruling.

5 MR. McCLOSKEY: Well, that's a more succinct way of what I was

6 trying to say.

7 JUDGE PROST: Thank you.

8 MR. McCLOSKEY: Yes, Your Honour.

9 JUDGE KWON: One more question.

10 JUDGE AGIUS: Go ahead, Judge Kwon.

11 JUDGE KWON: I have to concede that I have difficulty in

12 understanding the issue until I actually read the transcript, but I think

13 I can understand your concern as to the redaction of a passage which is

14 related to -- to both accused and to the other co-accused, because if a

15 certain passage is turned out to be a passage solely related to the other

16 accused, having nothing to do with Mr. Borovcanin, then you would not

17 oppose in the redaction?

18 MR. McCLOSKEY: Your Honour, and I agree with you. We could -- I

19 think this discussion of course is much better had with -- with the

20 sentence in front of us, but in proving criminal intent, what is in a

21 person's mind, what comes out of someone's mouth, through their brain, is

22 a crucial piece of evidence for me. So anything that's coming out of

23 Mr. Borovcanin's mind, especially when he mentions another accused, is

24 something that I want you to see because I think it helps you to get into

25 his mind.

1 Now, I don't have any smoking guns in this regard. We're not --

2 you know, he's -- I don't want to give you the impression that he's saying

3 something that will solve the issues of the case, but when Mr. Borovcanin

4 identifies an accused at a particular place, then we know that he knows

5 he's with that person or at least in the same place, and that has some

6 value. That has some probative value and helps us prove an issue, at

7 least that he knows that he is there. You may decide that it's not

8 evidence that the other person is there because you may very well find

9 that the other person is putting on evidence that he's not there. But at

10 least it's evidence that Mr. Borovcanin knows someone is -- is there. And

11 that is -- that I think will be important for you.

12 JUDGE KWON: Thank you. Let us leave it there, and I will hear

13 from the Defence.

14 JUDGE AGIUS: Thank you, Judge Kwon.

15 Thank you, Mr. McCloskey.

16 Who wishes to address the Chamber on this question?

17 Mr. Zivanovic?

18 MR. ZIVANOVIC: Thank you, Your Honour. I have nothing but to

19 repeat my position from yesterday, because our position is that no -- no

20 parts of interview could be introduced and are admissible if co-accused

21 has no opportunity to cross-examine the witness. It is our position, and

22 if Mr. Borovcanin decides not to testify in this trial, this part of

23 transcripts -- of his interviews should be redacted.

24 Thank you.

25 JUDGE AGIUS: Thank you, Mr. Zivanovic.

1 Mr. Meek.

2 MR. MEEK: Thank you, Mr. President, Your Honours. Of course my

3 position is obviously should the Trial Chamber take the position that

4 there is no probative value to any other accused, of course it should be

5 redacted. Mr. McCloskey, in stating that well, no it shouldn't be, is

6 just trying to boot-strap that in or bring it in the back door. I think

7 it -- I find it very interesting that Mr. McCloskey states on at page 5,

8 line 23, that if this tape is played or transcript is admitted, it will

9 affect the rights of the others. He goes on at page 10 to state that --

10 in answer to a question by Judge Kwon, I believe, that "frankly I don't

11 think you'll see anything in this evidence that is so potentially

12 prejudicial that it's that you will have a hard time putting out of your

13 mind." Well, first he says it will affect the rights of the accused, and

14 then he says, if it comes in, it's really not prejudicial. Well, Frankly

15 if it's really not prejudicial in his mind, why would he object to the

16 redactions?

17 And I think it's especially in this case concerning the

18 Srebrenica tape, which also may be in issue but it's been played and

19 played and played in this courtroom, if Mr. McCloskey says, well, in

20 answer to Judge Kwon's question again, if Mr. Borovcanin hypothetically

21 said that "I saw X at Potocari." Well, then Mr. McCloskey wants you all

22 to believe that this has some probative value to show that Mr. Borovcanin

23 was in Potocari. Well, I think we've seen a tape, have we not, of

24 Mr. Borovcanin in Potocari.

25 It should be redacted, otherwise it's an exercise in futility.

1 Thank you.

2 JUDGE KWON: Mr. Meek, I have a question to you. If we are

3 redacting some parts at all then who should decide to redact and how? If

4 there's a disagreement among the parties, they should have a look at the

5 transcript and look. What would you say to this?

6 MR. MEEK: That's a very good question, Your Honour. I believe,

7 should you make that decision, I believe that it would be a very simple

8 proposition and exercise for Mr. McCloskey and the Defence counsel for the

9 other accused to be able to agree on the redactions. And just to give you

10 an idea: If you all rule correctly and you find that there is no

11 probative value and there should be redactions, and I can even whittle

12 this down further, in this transcript I would be requesting -- and again

13 it can be whittled down quite a bit, a lot, actually, only 48 lines out of

14 approximately 6.300 lines. Now -- and that's lines, Judge Kwon. That's

15 not as you suggested earlier just a name. So if you want to just take a

16 name out, for example, it would be a lot less than that.

17 Now, 43 -- hypothetically 48 lines out of approximately 6.300 will

18 not change the substance of -- otherwise change the substance of what

19 Mr. Borovcanin said if you allow and find that was an admissible voluntary

20 statement and should go into evidence against him.

21 JUDGE AGIUS: You seem to be agreeing now with the part of

22 Mr. McCloskey's statement that you contested a couple of minutes ago.

23 MR. MEEK: Which part would that be, Your Honour?

24 JUDGE AGIUS: The second part.

25 MR. MEEK: The second part of his statement?

1 JUDGE AGIUS: Yes, the second part of his statement. You -- from

2 page 10, I think.

3 MR. MEEK: Oh, from page 10?

4 JUDGE AGIUS: Yes. You --

5 MR. MEEK: No, I don't --

6 JUDGE AGIUS: You suggested that Mr. McCloskey was sort of

7 contradicting himself, for saying that it would have importance for all

8 the accused, and then you suggested that --

9 MR. MEEK: No, I just pointed out.

10 JUDGE AGIUS: [Overlapping speakers]

11 MR. MEEK: Your Honour, I don't agree with that at all. I'm

12 pointing that he's on both sides of the fence. First he tells you the one

13 thing, that oh, you know, and he says it's not so prejudicial. Why he

14 would care? That's the Prosecution state of mind. I'm telling you

15 perhaps it might not be prejudicial, but still I have a right and a duty

16 to represent my client and make sure he has a fair trial.

17 JUDGE AGIUS: That's not being contested.

18 MR. MEEK: Without going into fair trial, et cetera, and no, don't

19 agree with that, and I'm just pointing out that that's what he stated.

20 JUDGE AGIUS: All right. Let's proceed. No one is contesting

21 that this is important for you.

22 JUDGE PROST: Mr. Meek, can you explain to me why you feel it --

23 why do you feel it's necessary for those redactions to be made? Is it

24 your position that the Trial Chamber is not able to separate the evidence

25 in terms of its relevance to Mr. Borovcanin and its relevance to the other

1 accused should we rule that it's not of probative value to the other

2 accused? Is it your evidence that we're not able to do that separation

3 process and that's the need for the redactions?

4 MR. MEEK: My position is if there is no probative value and it's

5 not going to be used towards the other accused, whether you can put it out

6 of your minds or not, why even have it in front of you?

7 JUDGE AGIUS: That begs the question that Mr. McCloskey referred

8 to and which you haven't answered; namely, that Mr. McCloskey told you

9 granted for argument's sake that certain excerpts which go to the acts and

10 conducts of the other accused are not to be made use of vis-a-vis the

11 other co-accused. Still in those excerpts, in those parts, there is

12 information or there could be information or facts which are relevant for

13 the person, for the accused, who made that statement.

14 And you haven't actually dealt with that except that you said

15 here, but we're talking of his presence in -- alleged presence in Potocari

16 you have other evidence. But you can't argue the point by means of one

17 isolated example or instance.

18 MR. MEEK: Okay. That --

19 JUDGE AGIUS: I think what you need to argue is whether there is

20 any validity or not in the argument or in the submission made by

21 Mr. McCloskey, namely, that granted that those parts will not have any

22 probative value vis-a-vis the other co-accused. Why should I be deprived

23 from making use of what is contained in those parts for my case against

24 the accused who made that statement? All right?

25 MR. MEEK: Okay. Well, Your Honour, and I have had a chance to

1 review and read this interview, and in my opinion, in my submission as an

2 officer of the court, anything that I would ask to be redacted should you

3 make a ruling that it's not probative to other accused, I submit, Your

4 Honour, would have no affect on the Prosecution's case against

5 Mr. Borovcanin, period. That's what I'm trying to tell you. I mean,

6 that's what I believe.

7 JUDGE AGIUS: All right. Okay.

8 JUDGE KWON: And I'm not sure whether you answered to my question

9 in full. As for those 48 lines you referred to, if Mr. McCloskey would

10 not agree with you, then we Judges should read those parts.

11 MR. MEEK: Yes, Your Honour.

12 JUDGE KWON: You're opposed to that.

13 MR. MEEK: I would have to agree with you. If we came to an

14 impasse on certain redactions after a line or a sentence or a word or two

15 words, then, yeah, I believe that would have to go to the Chamber, but

16 that's a bridge I don't think we have to cross at this point.

17 JUDGE AGIUS: But Judge Kwon is a hundred per cent right. Already

18 there is an impasse. So -- so you need to answer the question.

19 JUDGE KWON: My next question is that being the case, Judge --

20 with Judges having read those passages already, what's the point of

21 redacting that part later on?

22 MR. MEEK: Well, Judge Kwon, in answer to your question, you're

23 absolutely right. You're absolutely right. If that's what's going to

24 happen, then why are here arguing this right now? It's an exercise in

25 futility. And we had another issue with a long document, and it took us

1 some time, but we did get the redactions completed and it got admitted,

2 and it didn't entail having it to bring it to the Trial Chamber.

3 JUDGE AGIUS: Yes. Do you wish to intervene?

4 MR. McCLOSKEY: I think you're speaking of Eileen Gilleece's

5 statement. I'm not sure we're there yet. We're getting closer and we're

6 doing the process you're describing, but we may be at an impasse on that

7 one as well, but we have entered into this process before. We understand

8 the Court has done similar things. So -- but I think we're definitely at

9 an impasse with this statement.

10 JUDGE AGIUS: There is -- there is another problem. Mr. Meek is

11 fast on the draw. So let's proceed.

12 Mr. Meek, I don't think you can assume that there will be an

13 agreement in whole or in part about possible redactions. I think you for

14 the time being, in trying to answer the very pertinent questions that were

15 put to you by Judge Kwon, you have to assume exactly the contrary, the

16 opposite, in other words that there will be what you called an impasse,

17 which would be the position you have reached now, already.

18 MR. MEEK: Well, Your Honour, that's where I disagree with you.

19 If you want to take the position and a state of mind that yes there will

20 be an impasse, because Mr. McCloskey says, oh, yes, there will be an

21 impasse, I don't believe that and I'll tell you why. Because

22 Mr. McCloskey has always dealt with us, I believe in an honest fashion and

23 aboveboard. If an order comes from [indiscernible] that there should be

24 redactions, I believe in good faith that he will not take the position and

25 nothing is going to be redacted and we can't agree on this word or those

1 words. That's just what I believe, Judge.

2 So, yes, if you all want to take the position that, yes there

3 will be an impasse, yes we're going to have to look at it anyway, then you

4 can take that position. The glass is either half full or half empty.

5 Well, I believe we can work it out if you make that ruling. If you make

6 the ruling and we can't work it out, then yes someone's going to have to

7 look at it for the Trial Chamber but why presume that now.

8 JUDGE KWON: If you could watch out with your sleeves.

9 MR. MEEK: It's just as easy, Your Honours, to presume that should

10 you issue an order that the Prosecution will act in good fate. And that's

11 my submission. Now, if you want to take the position that - and this is

12 pure speculation that if you make such an order - that they're not going

13 to agree with us on every little thing and it's going to have to come back

14 to you, then I guess you could say, okay forget it. We're just going to

15 look at it, but that's up to you.

16 I believe if you enter and reach that we can -- we can reach an

17 agreement.

18 JUDGE AGIUS: Okay. Thank you, Mr. Meek.

19 Ms. Nikolic or Mr. Bourgon. Mr. Bourgon.

20 MR. BOURGON: Good morning, Mr. President. Good morning, Your

21 Honours.

22 As you well know it has been since the beginning of trial a

23 sensitive issue as to whether we should allow the Judges to see some

24 material or not to see some material. I believe that in this case we have

25 the two options. Either we proceed with no redactions --

1 JUDGE AGIUS: Stop, stop. I object to you using -- maybe you

2 didn't use these words intentionally, but the idea whether we should allow

3 the Judges to see. You have -- it has never been and it will never be a

4 question of you -- either of the two sides allowing the Judges to see.

5 That's for us to decide, not for you to allow us to -- to see or not.

6 Okay. Let's make that clear.

7 Any time -- any time we can surprise you and tell you from now on

8 we're going to see all documents, all previous statements of witnesses,

9 all -- everything, and it is within our rights to do that. And it's not

10 within your rights to allow us not to do that. So let's make that clear.

11 MR. BOURGON: Maybe my English is not good enough. Maybe I should

12 be speaking French, because when I say should allow, I do not mean in any

13 way, respectfully put, that we are to decide anything in this courtroom,

14 and if I ever referred this way, and if you ever had the impression that

15 referring that we could decide on something, well, then I apologise,

16 Judge.

17 JUDGE AGIUS: Okay. Go ahead, Mr. Bourgon. The important thing

18 is -- because this is the second time we have had to draw your attention.

19 This is the second time that we had to draw your attention, when I say

20 yours, it's not necessarily you as Mr. Bourgon, because it has been stated

21 by others as well but it's the second occasion that we've had to make this

22 clear.

23 This is something that we have decided at the beginning of the

24 case to adopt as a practice. It's not a rule that we have imposed upon

25 ourselves with -- without -- without any option to go back on it. So I --

1 but I do appreciate that it was a -- maybe a slip of the tongue, slip --

2 language. So let's proceed.

3 MR. BOURGON: Thank you, Judge. Thank you, Mr. President. The

4 issue is twofold, either we proceed with redactions or we proceed without

5 redactions and the ruling of the Trial Chamber I assume would be

6 accompanied by what exactly is meant to be done with the portions that are

7 relevant to both Mr. Borovcanin and some other accused. As a preliminary

8 matter, I must say that this issue does not concern my client and I am

9 speaking simply on the matter of principle.

10 I believe that what is important, Mr. President, is what exactly

11 will accompany the ruling from the Trial Chamber. What position will the

12 Trial Chamber take with respect to an issue or part of the statement of

13 Mr. Borovcanin that also affects another accused? And if that ruling is

14 precise and we know exactly what the Trial Chamber will do, then I guess

15 we can proceed without redactions. However, it is my view that it is much

16 safer to proceed with redactions.

17 Thank you, Mr. President.

18 JUDGE AGIUS: Yes. Thank you, Mr. Bourgon, but why would it be

19 much safer.

20 MR. BOURGON: It is much safer because in the end when we have a

21 judgement once this case is over and then there is a doubt in the mind of

22 any of the accused representing -- any of the counsel representing any of

23 the accused that what the use that has been made of Mr. Borovcanin's

24 statement is not in accordance with what should have been done, then

25 there's a possibility that this might be a ground of appeal.

1 If we have redactions that were made out of consent between the

2 Prosecution and the Defence, in such a case we know exactly what has been

3 considered and what has not been considered. So it's just a matter of

4 being much safer. But that can be overcome, Mr. President, by clear

5 guidance from the Trial Chamber as what is the use of a statement that

6 affects that effects both Mr. Borovcanin and another accused. And the

7 example that was used, Mr. Borovcanin saw X in Potocari, I think it's a

8 benign example, but it's also a good example. Because if it is left

9 unredacted for the purposes explained by Mr. McCloskey that the Trial

10 Chamber knows that he had this in his mind, that he saw another accused,

11 or if we just redact the name of the accused, then what will be the value

12 of this exact statement for another accused? That's the important part.

13 JUDGE AGIUS: Okay.

14 MR. BOURGON: And at that can be made clear by the Trial Chamber,

15 and then in this sense we would proceed with no redactions. And again,

16 Mr. President, if I ever gave you the impression --

17 JUDGE AGIUS: It's okay forget that.

18 MR. BOURGON: That's important for me, Mr. President, because

19 that's a number of times that I believe that I'm being taken aside, that

20 I'm being pointed out by the Trial Chamber for statements that I make in

21 this Trial Chamber, I respectfully say that it is not my intention, it has

22 never been my intention, and I believe there's only one Bench in this

23 courtroom, and you make all the decisions.

24 That being said, if you think I say something wrong, and if you

25 want to take me out of this courtroom, then do so. Thank you,

1 Mr. President.

2 JUDGE AGIUS: Thank you, Mr. Bourgon.

3 Mr. Lazarevic.

4 MR. LAZAREVIC: Well, again, Your Honours, I don't believe that

5 this is something that we shall interfere with because it relates strictly

6 to other Defences and the situation in which other Defences are affected

7 by some parts of Mr. Borovcanin and the admissibility. Whether it should

8 be redacted or not, I leave it to my colleagues. But I may suggest they

9 try to get find an agreement with the Prosecution. Once they see both

10 sides, the Prosecution and the Defences, what is the extent of such

11 proposed redactions maybe the answer to your question will -- will be

12 dealt with without any further comments on this.

13 JUDGE AGIUS: Yeah, but Mr. Lazarevic, I beg to differ on the

14 first part of your statement. The suggestion that the Prosecution made in

15 the first place was assuming for argument's sake after that the Trial

16 Chamber has decided that the relevant parts involving or relating to other

17 co-accused will not carry any probative value or will not be used

18 vis-a-vis those other co-accused, the Prosecution is telling you, still I

19 don't want them redacted, because in them there is evidence that goes to

20 either the frame of mind of your client or the participation of your

21 client, and reference was made to joint criminal enterprise in particular.

22 So I disagree with you that this is a matter -- redaction is a

23 matter that concerns your colleagues or the respective clients of your

24 colleagues and not your own client. It does concern your client. What

25 the Prosecution is precisely claiming is no redactions, please, because

1 those are important for my case against Borovcanin.

2 MR. LAZAREVIC: Well, yes, Your Honour. In this way it is put in

3 another way that maybe I didn't understand properly.

4 I was listening very carefully to what Mr. McCloskey said, and

5 basically from the very beginning it was the only position that we have

6 that not any part of the interview should be entered into. And so now we

7 are we are talking about the separate issue, whether some redactions are

8 needed, but in a situation that the Trial Chamber decides that no part of

9 the interview will have effect toward other clients. So then I'm going

10 back to the first issue.

11 Whatever the Trial Chamber decision is on this it basically

12 affects -- both situation affects Mr. Borovcanin, and if the Trial Chamber

13 decides not to deal with the interview at all, not to admit it into

14 interview [sic], then we will have no such discussion. If the Trial

15 Chamber decides that the redactions are needed then I will -- I will turn

16 back to my -- to the initial proposal that I just said. It should be

17 meted out between these two parties.

18 Of course, whatever Mr. Borovcanin has said in interview regarding

19 some, some incidents, some situation that appeal, I don't want to go into

20 substance of his interview, is of course related to him. But of course in

21 such a situation, being part of -- well, I'm not suggesting that he was

22 part of any joint criminal enterprise, but he's charged as, the Defence of

23 Mr. Borovcanin would only benefit if certain parts of the interview would

24 be redacted. So this is our position.

25 JUDGE AGIUS: Exactly. The point made by the Prosecution and we

1 understood by everyone is if there is a total redaction of these parts

2 that would be beneficial to all involved accused and co-accused, but the

3 benefit that your client would derive from is -- would be unduly derived.

4 This is basically what has been submitted. So I take it that you are also

5 pretty much in favour of redactions as the previous speakers.

6 MR. LAZAREVIC: Absolutely, Your Honours.

7 JUDGE AGIUS: Okay. Madam -- yes, Mr. McCloskey. Sorry.

8 MR. McCLOSKEY: I'm sorry I'll wait my turn. Excuse me.

9 JUDGE AGIUS: Okay. Madam Fauveau.

10 MS. FAUVEAU: [Interpretation] Mr. President, it's certainly

11 because of my continental law culture that I'm used to professional

12 Judges, and I'm not used to redactions. However, I must admit that in

13 this particular case it don't concern my client because his name doesn't

14 appear in the interview. Otherwise, my position would have been different

15 if my client's name had been mentioned.

16 What I would like to say now is the following: If we listened to

17 what Mr. McCloskey said carefully, I think he has just answered a question

18 put yesterday: Why is this particular hearsay different from other forms

19 of hearsay, because he made a very important distinction between this

20 interview and the statements that were admitted into this process under 92

21 bis.

22 And as far as redaction are concerned, I would also add -- I'll

23 repeat once again that I certainly don't have any problem having certain

24 parts redacted, but it's true that the Chamber adopted this practice of

25 redaction in statements that were admitted under 92 bis. And I'm also

1 aware of the fact that the Chamber in this case had access to those

2 statements. So I have no solution to this particular issue.

3 JUDGE AGIUS: Thank you, madam.

4 Mr. Josse.

5 MR. JOSSE: Your Honour, in our submission the answer to the

6 question is no. However, I repeat what's been said by a number of my

7 predecessors; namely, it isn't really a question that affects my client

8 greatly if at all, and therefore it's easy for me to say no. I am aware

9 that others regard the matter with more sensitivity. That's

10 understandable, and I don't want to tread on their toes unduly.

11 However, where I disagree radically with my learned friend

12 Mr. McCloskey is in his categorisation because again in my submission the

13 matter needs to be dealt with logically. And if category 3 is or might be

14 redacted, we submit there is no logical or legal reason why categories 1

15 and 2 of his definition should also not be redacted. Of course I then

16 recognise that the logical result of that is there will be virtually

17 nothing left of Mr. Borovcanin's interview.

18 However, I do submit that if the Trial Chamber is going to

19 contemplate redacting category 3, then it should also redact categories 1

20 and 2 which do have some effect against my client, hence the reason

21 Mr. McCloskey has been arguing as strongly as he has that the interview is

22 admissible as against my client and indeed all the other defendants in the

23 dock in this particular case.

24 Your Honour, it's also easy for me to say, but realistically this

25 is a trial being conducted by a Judge alone. You and your colleagues wear

1 two hats. One is of Judges of the fact. The other is the Judges of the

2 law. The fact is on occasions you have to see material which you might

3 then need to put out of your mine. On behalf of General Gvero, we accept

4 and understand that.

5 JUDGE AGIUS: I thank you so much, Mr. Josse.

6 One moment. Have you decide -- have you changed your mind? Don't

7 you want to wait for your turn now, Mr. McCloskey? There's still

8 Mr. Haynes.

9 MR. McCLOSKEY: I don't know how I forgot Mr. Haynes. Excuse me.

10 MR. HAYNES: Flattery. Flattery.

11 JUDGE AGIUS: Go ahead, Mr. Haynes.

12 MR. HAYNES: I don't want to be repetitive, but perhaps I might

13 pick up on a point that Mr. Meek began to make until he realised he was in

14 error, and that is the question of the as-yet unresolved aide-memoire of

15 Eileen Gilleece.

16 It's perhaps worth bearing in mind that in relation to that piece

17 of evidence which is, I suppose, an interview of my client, the

18 Prosecution have already conceded that portions that affect other accused

19 in this trial ought to be redacted, and so I repeat a question which

20 Mr. Josse has already put to Mr. McCloskey, what has changed now? Why is

21 it that what Mr. Pandurevic might have to say about other accused ought to

22 be redacted from the Eileen Gilleece aide-memoire, yet what Mr. Borovcanin

23 has to say about other accused is not to be redacted from the transcript

24 of his interview.

25 I'll repeat another point that's been made, and I hope just to

1 make it more clearly. The question of the redactions of Mr. Borovcanin's

2 interview are a storm in a teacup. I don't want any redactions from his

3 interview, and I don't believe many more than one accused here wants

4 redactions from his interview. Both the Prosecution and the lawyers for

5 that accused know what those passages are. I think they've already been

6 notified. And the suggestion that there might be some impasse reached,

7 although a possibility we have to face is in reality not likely to arise.

8 If it does arise, of course we will have to ask your help. You

9 are the Judges of the law in this case, and you would have to resolve the

10 issue. You're the only place we can come to. But even in the event we

11 have to do that, there should still be redactions. Why? Because the law

12 has to -- I'm sorry, justice has to appear to be done. We know you can

13 put it out of your mind, but the public don't. The accused don't. The

14 accused who might go to separate lawyers and seek an appeal against your

15 verdict don't know that.

16 If you decide that assertions by Mr. Borovcanin about the

17 involvement of other accused are not probative against them. It makes no

18 sense to keep that written record on the record of this trial. For

19 appearance's sake should you redact it. Those are my submissions.

20 JUDGE AGIUS: Thank you, Mr. Haynes. Now you have your say,

21 Mr. McCloskey.

22 MR. McCLOSKEY: Thank you, Mr. President. As you are aware, and

23 we of course did involve you and alert you to the Eileen Gilleece

24 situation. That is an ongoing effort of the parties to agree to

25 something, and if we can't agree, we may be in taking the position that

1 we're taking now, that it all comes in.

2 It's -- there's fundamentally different things that are said in

3 that interview and of a much different nature than the things that are

4 said by Mr. Borovcanin and that is something that we were cognisant of,

5 and that's why we're discussing that with the Defence. It was also not a

6 taped interview, as you know. So we'll see how that goes and we'll inform

7 you, of course.

8 I agree with Mr. Josse that you should be reviewing this material

9 before any redactions are made or even suggested. That's crucial on a --

10 on one very practical level. For example, if Borovcanin said something

11 like someone was at Potocari, and you told us without looking at that to

12 delete who he mentioned, and if another lawyer got up and said, "That

13 doesn't affect my client," then you would be left one of -- which accused

14 may it have mentioned, and that could be a problem to the accused that was

15 not mentioned in Potocari. So you're getting in this -- and I know you're

16 not going to do guessing games, but the evidence that is mentioned that

17 goes to the acts or conduct of the accused is largely corroborated by

18 other evidence and will not, by accident, if you review it, suggest

19 somebody else was at Potocari that we don't have evidence that it was. So

20 it's really important if you review this material.

21 If you decide you need to redact it that's within your discretion

22 obviously, but I don't think there's anything in there that requires the

23 public not to see it or in fact I think it may be the reverse. I think

24 the public should see as much as they can in this trial.

25 And the idea that -- I take it Mr. Josse was developing the common

1 law adversarial system and finding a technical way of throwing out the

2 entire interview, which I obviously object to strongly, but I can put on

3 my adversarial hat and say that we're at a point in this trial where they

4 have waived their right to even make this argument because that's an

5 argument you make at joinder, because if at joinder the statement gets

6 thrown out, then I withdraw joinder and I try Mr. Borovcanin by himself.

7 But once a case is joined without anyone challenging that statement, I

8 have the, in the adversarial system, the right to stand on that and they

9 have waived their right.

10 Now, I am not bringing up the adversarial system which we know is

11 based on trial by combat in all its intricacies to try to exclude this

12 statement or try to include it at this point, I'm not making that

13 argument, I don't think those arguments should be made and they are not

14 arguments appropriate at this level.

15 But in any event, enough said. Thank you very much.

16 JUDGE AGIUS: I thank you.

17 Judge Kwon.

18 JUDGE KWON: Mr. McCloskey, the fact -- a practical difficulty I

19 anticipate if we are not to redact any part related to the other accused

20 is that we have to divide our deliberation or way of thinking with respect

21 to accused. If we are to delete, we are to disregard that part of

22 evidence in relation to all the accused, that's easy. I think we can do

23 that. But although we are professional Judges, but as a human being how

24 can you disregard those parts which is we are going to use in relation to

25 one accused in relation to other accused?

1 MR. McCLOSKEY: I -- I understand that issue, and that's partly

2 why we're in discussions with Mr. Haynes on the interview of Eileen

3 Gilleece, because that is going to be a tricky business in that particular

4 interview, but I'll go back to a phrase from our adversarial law that I

5 was reminded in listening to Mr. Meek and I think it will bring fond

6 memories of him, it probably gets mentioned in every trial I've ever been

7 in, and that is we're offering evidence not for the truth of the matter

8 asserted, but to the state of the mind of the declarant. And this is an

9 instruction that gets given to juries every day and Judges ask them to do

10 it. It can be difficult, because I think it's something that you -- that

11 you can do if you need to.

12 I don't think because of the structure of this system and the

13 admissibility of hearsay that you need to at all. I think it should all

14 go to weight. And so you can give it any consideration you want, and you

15 can decide to give it none if you want and then -- as a Judge I would find

16 it simpler in the end to look at it that way, because then when your

17 judgement's being reviewed no one is going to be able to say, ah they've

18 redacted that, but look in their judgement it appears as if they've

19 considered it, which will be a classic way of challenging any judgement.

20 So, yes, it's a difficult job and I'm happy that -- that it's your

21 job and not mine, but I don't -- I think it's eminently doable in this

22 context and again it's just so important why you need to see this and so

23 we can discuss the various sentences because, I think when we get to that,

24 I think you'll find it a much easier job.

25 JUDGE KWON: My final question -- yes, Mr. --

1 JUDGE AGIUS: Go ahead, Judge Kwon.

2 JUDGE KWON: On this point Mr. Meek if you have anything to say.

3 MR. MEEK: Yes I have one thing to say and I certainly have heard

4 that quite often where I practice, but Mr. McCloskey can't sit here and

5 tell you that if in this interview hypothetically Mr. Borovcanin said, "I

6 was at location X and I saw Joe Blow," that that had anything whatsoever

7 to do with Mr. Borovcanin's state of mind. Thank you.

8 JUDGE KWON: I'll ask later if any. Mr. Josse.

9 MR. JOSSE: In relation to Your Honour Judge Kwon's question, of

10 course there is one huge advantage in trial by Judge from an accused's

11 point of view; namely, at the end of the trial the accused will get

12 reasons as to why he or she has been found guilty or not guilty and that

13 will be dealt with count by count, particular by particular. And that is

14 in my view a huge advantage over a jury trial where all the accused knows,

15 particularly if he's been found guilty, is that he has been found guilty

16 and the jury is aren't giving any reasons for being found guilty.

17 However, that is caveat to that in relation to what my learned

18 friend, Mr. McCloskey, has just said. Namely, it's all very well to say,

19 well, you the professional Judges can sort it out later, so long as at the

20 end of the case the accused are told in terms evidence by evidence,

21 exhibit by exhibit, what weight you have given to each of those exhibits.

22 Well, that of course in this case, like really any case in this

23 Tribunal, would be a mammoth task, a mammoth task because each case has so

24 many exhibits and so many pieces of evidence in it. That for you in the

25 course of a judgement break down what weight you've given to each

1 particular evidence and in particular what weight you've applied it to

2 each of the seven accused is a huge task as I've already said, and if you

3 think and I say this with the greatest of respect, that is a manageable

4 task then what Mr. McCloskey says is fair and fine, but if not, it does

5 have practical implications and it goes back to the issue of the

6 admissibility of this particular interview as against the seven other

7 accused.

8 JUDGE KWON: Thank you, Mr. Josse, but my concern was that whether

9 any part of the evidence which was used against certain accused can have

10 any bearing upon whether -- whether or not to believe other exhibits to be

11 used against the other accused.

12 MR. JOSSE: Well, there is no question, I submit, that you are

13 trying seven men, and in effect there are seven cases here that have been

14 joined for the sake of convenience, and it is by no reasons inconceivable,

15 certainly in the common law system, even with a jury this happens always

16 time, that you may conclude there are certain pieces of evidence which

17 only goes as against one accused, and in the end it is possible that there

18 isn't a coherent jigsaw so far as the seven accused are concerned, because

19 ultimately all you need to say is whether you're satisfied beyond

20 reasonable doubt that a given accused is guilty on a given count. If you

21 are not satisfied, then of course the verdict is not guilty.

22 The point I'm trying to make is is that there may not be a

23 coherent picture in relation to all seven accused. Now, whilst that's a

24 difficult concept, it's a perfectly logical one, and in particular, it's

25 one the accused are not prejudiced by because you are going to have to

1 give reasons.

2 I hope that helps.

3 JUDGE KWON: Thank you. I'm still musing, but can I ask a final

4 question to Mr. McCloskey.

5 JUDGE AGIUS: Go ahead Judge Kwon.

6 JUDGE KWON: You answered to my previous question that if we are

7 to redact some part of the -- Mr. Borovcanin's statement, then we will

8 lose that part which is also related to Mr. Borovcanin. Can we not view

9 that kind of result as a consequence of joinder? By joining the accused

10 you are to lose some part of the evidence inevitably. What do you --

11 MR. McCLOSKEY: I agree with you absolutely, and while I won't get

12 into the -- counsel's invitation on Mr. Jokic, that one of the reasons we

13 took the position we took in Mr. Jokic was for that -- that concern. But

14 that in the adversarial system is a decision that's decided at the joinder

15 motion stage, and so the Prosecution has the opportunity to evaluate

16 whether he wants to go forward alone or he wants to go forward with a

17 redacted version. Since it was not challenged at the -- as far as I

18 recall, at that stage under an adversarial system, they would be prevented

19 from bringing it up.

20 I think when we go over these statements --

21 JUDGE KWON: I don't follow. You say it was decided in the

22 joinder motion stage? What do you mean?

23 MR. McCLOSKEY: One reason not to grant to anyone that objected to

24 joinder should have said, "We object to joinder because Mr. Borovcanin's

25 statement will be -- will come into evidence, and it will affect my client

1 and negatively." That is a ground for severance or lack of joinder in an

2 adversarial system, because the jury -- many times you don't want to give

3 the jury an instruction ignore what he said against him. The problem you

4 pointed out. That's a ground for joinder. And if you don't bring it up

5 at joiner, the Prosecution doesn't have -- if it's not brought up at

6 joinder it's waived to be brought up later on.

7 Now, that's a technical adversarial system which I'm not trying to

8 bring upon us. I'm very willing to argue this now. But that's what I was

9 referring to.

10 But again, once we get to these phrases, and I don't have them all

11 in my head, some of them may not really affect Mr. Borovcanin, though most

12 of them do because he said them, but others might. And I do agree with

13 Mr. Meek, if you do give us an order, we'll of course be able to work

14 these things out as we have for 10 months now. I think -- we may not, but

15 I think we will be able to, but I hope that answers your question.

16 JUDGE AGIUS: Let me see if I am understood you well. Judge

17 Kwon's question was very simply put as follows: Can we not view that

18 kind -- or that as a kind of result as a consequence of the joinder? By

19 joining the accused, you are to lose some part of the evidence inevitably.

20 So your answer to that is no, Judge Kwon, it's exactly the

21 opposite. Once the matter was not raised the during the joinder stage, as

22 far as you are concerned, it's a matter that assumes a legal existence

23 because according to you the Defence teams, the accused, cannot raise it

24 at this stage.

25 MR. McCLOSKEY: That's -- that's correct. I think Judge Kwon is

1 correct that it would be an issue at the joinder stage that I would have

2 to live with, like you suggest.

3 JUDGE AGIUS: Yes, exactly.

4 MR. McCLOSKEY: And -- but -- but the nature of an adversarial

5 system means that I should not have to live with it after the joinder is

6 made. Standing here now whether I want to throw the adversarial system at

7 you in that particular context; frankly my answer is I don't. So I'm not

8 suggesting that that has been waived and that can't be discussed right

9 now. I'd rather -- I think we can discuss it, but --

10 JUDGE AGIUS: Yes, but I wanted to --.

11 MR. McCLOSKEY: I think if you take that into account overall that

12 it wasn't brought up --

13 JUDGE AGIUS: Yes. I wanted to see clear into that. Madam --

14 JUDGE KWON: My point is on -- I'm waiting for my -- my point was that

15 the -- the other way around on your part would be also possible. By

16 joining you may have consequences of not using part of the accused's

17 statement.

18 MR. McCLOSKEY: That's correct, and I could -- at the time that

19 that was discussed, I could have constructed the statement around any

20 legal problems to make joinder possible, especially when there's not 50

21 other courtrooms that I could try him in and 200 other Judges. And we

22 could have constructed it around that had that been the case but since it

23 wasn't brought up, there was no reason to do any construction.

24 Also, you'll see the statements. I'm not sure there's a whole lot

25 of reasons to do any construction anyway but, yes that -- that would have

1 been a function of joinder, but it should have been decided at the time of

2 joinder. I don't have any problem with it now, and I hope it's not a

3 burden I have now as part of this debate, but I'm willing to take it if it

4 is.

5 JUDGE AGIUS: Thank you, Mr. McCloskey. Madam --

6 [Trial Chamber confers]

7 JUDGE AGIUS: Yes, Madam Fauveau.

8 MS. FAUVEAU: [Interpretation] Mr. President, I find the arguments

9 of the Prosecutor rather interesting concerning joinder, because it's in

10 fact the Prosecutor who asked for joinder. We the Defence of General

11 Miletic were opposed. We appealed against the decision on joinder, and

12 one of the grounds of our appeal was in fact that the leading of evidence

13 against co-accused could be prejudicial to General Miletic. This argument

14 did not concern in particular the interview of Mr. Borovcanin because I

15 don't think we were even aware of its existence at the time, and we were

16 certainly not away, because even today it's not on the 65 ter list, but we

17 were in any case not aware that it was ever going to be admitted into

18 evidence.

19 What I'm trying to say is that in a joint trial the accused should

20 have all the rights, would have the right to be tried the same way as if

21 he were being tried separately. If General Miletic were being tried

22 separately, it is certain that the Borovcanin interview would never enter

23 into evidence in his trial, as it shouldn't now.

24 And in any case, contrary to what the Prosecutor says, in keeping

25 with Article -- Rule 82, something can be excluded. An instruction by the

1 Court can be made at any time during the trial if the rights of the

2 accused are thereby jeopardised.

3 JUDGE AGIUS: I thank you so much Madam Fauveau and also -- yes,

4 Mr. McCloskey.

5 MR. McCLOSKEY: Just very briefly to clear the record. I'm sure

6 she was aware of the statement. And it is -- contrary to what she has

7 said, that interview does affect her client, and it will be argued that it

8 affects her client, and it will also to some but a lesser degree affect

9 General Gvero, to a lesser degree, but just so you know that. Again we're

10 arguing in a vacuum because we don't have it, but -- and I don't want to

11 argue that now, but it's the third time she's said that, so I had to

12 respond.

13 JUDGE AGIUS: Okay. Thank you. I think it's the time to close

14 the -- bring the sit to go an end. I wish to thank you all for your

15 contribution on -- yes.

16 MR. NICHOLLS: Thank you, Your Honours. Can I have 30 seconds

17 [realtime transcript read in error "minutes"] to make a point on PW-108.

18 JUDGE AGIUS: Yes.

19 MR. NICHOLLS: I will be very brief. I agreed with the Defence

20 request and did not object to their request for more time because they

21 told me in good faith they needed more time to investigate. And the

22 reason I agreed really one other than just to cooperate was because it's

23 very important that the witness not have to come here once and then go

24 home and then come back again. And they assured me that they thought they

25 would be asking for more time if he did come.

1 So I just wanted to say that I don't object to more time, but

2 what I hope Your Honours don't decide to do, and I would strongly urge you

3 not to do is to bring him in just for direct examination or just for a

4 portion of cross and then return, I think. Because of the security

5 concerns we strongly suggest that this witness come here on one occasion

6 only. Thank you.

7 JUDGE AGIUS: Okay. Thank you for the record of page 41, line 5,

8 Mr. Nicholls didn't ask for 30 minutes, 30 seconds.

9 Okay. I wish to thank you all for your contributions to the

10 debate.

11 [Trial Chamber confers]

12 JUDGE AGIUS: So we will have a 25-minute break now, and after

13 which we'll come back to you on PW-108, because we still are undecided

14 what to do, and we need to reach consensus on that. That's number one.

15 And the second thing, we will give you a directive -- direction as

16 to what's going to happen on Tuesday when Mr. Alistair Graham comes over.

17 In other words, whether in addition to Mr. Borovcanin, as lawyers, whether

18 the -- other counsel, other counsel would be -- would have the opportunity

19 to cross-examine the witness on admissibility issues as well. So that the

20 reason being that you need to be prepared for this before he actually

21 comes to give testimony, give evidence.

22 So 25 minutes from now we'll come back on these two issues.

23 --- Recess taken at 10.39 a.m.

24 --- On resuming at 11.11 a.m.

25 JUDGE AGIUS: Yes, Madam Fauveau.

1 MS. FAUVEAU: [Interpretation] Mr. President, I just wanted to

2 clarify something in the transcript. On page 40, line 14, when I said

3 Article 82, I said that a joinder case could be separated, and in the

4 transcript it says something can be exploded [sic].

5 JUDGE AGIUS: Thank you, Madam Fauveau. Thank you, Madam Fauveau.

6 MS. FAUVEAU: [Interpretation] And the other thing I wanted to

7 point out is that I never said that the interview had no influence or I

8 impact on my client. I said his name wasn't mentioned in the interview,

9 and as a result redaction doesn't concern him; but I didn't refer to the

10 interview itself.

11 JUDGE AGIUS: I think if people had noticed the existence of that

12 word in the transcript we probably would not be sitting now.

13 So let me come first to the -- what would have been the next

14 witness, PW-108. As you may have guessed before, we were a little bit

15 hesitant on this. However, we do understand your concerns, Ms. Nikolic

16 and Mr. Bourgon, and also your concern, Mr. Nicholls, that you wouldn't

17 like to have this person's testimony in -- in bits and pieces or with

18 hiccups or with interruptions, so ultimately we have come to the decision

19 that we will cooperate with you. So for the time being we will be

20 postponing the testimony as per your request, Ms. Nikolic.

21 Next item that we are going to deal with is what I anticipated

22 before -- immediately before the break, and that's giving you a directive,

23 a direction as to what's going to happen when Mr. Alistair Graham shows up

24 on Tuesday. As regards examination and cross-examination.

25 It had been the Trial Chamber's original intention to decide the

1 issue of Borovcanin's statement if admitted with reference to the other

2 accused prior to the testimony of Alistair Graham next -- which is due

3 next week. However, given the extent of the submissions and the witness

4 schedule problems, that will not be feasible.

5 As stated yesterday, however, there will be a two-stage process in

6 relation to the Borovcanin statement with the first stage relating solely

7 to admissibility. As a result, I'm afraid that on this occasion the

8 Prosecution, taking prompt from Mr. Josse's expression, which I had used

9 before, too, on another occasion, the Prosecution will neither have the

10 cake nor be able to eat it. As we have decided to reserve our decision on

11 the use of the statement against the co-accused, we are going to allow all

12 Defence counsel to cross-examine and make submissions on the admissibility

13 of the interview. However, there are some caveats.

14 First, the Borovcanin Defence team will necessarily and obviously

15 be the first to proceed with cross-examination and then they will be

16 followed by other Defence teams in the order that you may wish to choose

17 amongst you, amongst yourselves. As usual, however, no repetition will be

18 allowed in terms of questioning or submissions, and even more importantly,

19 the questioning should at this stage be restricted to the issue of

20 admissibility of the statement. This, as indicated yesterday, will be the

21 case for both the Prosecution and the Defence.

22 Finally on the broader issue of the use of the statement, if any

23 of the parties wish to supplement the extensive submissions made

24 yesterday, that is in -- in other words, on whether relevant parts could

25 be made use of vis-a-vis co-accused. So if you wish to supplement the

1 extensive submissions yesterday or provide any additional case

2 authorities, then we are giving you the opportunity to do this provided

3 it's filed by close of business on Friday the 20th of July. And that

4 disposes of the matter for the time being. Of course it's only the first

5 part or the first chapter that we have written, and we'll take it up from

6 there in due course.

7 Now, do you wish to raise anything else before we adjourn?

8 Yes, Mr. McCloskey.

9 MR. McCLOSKEY: Mr. President, we don't anticipate playing any

10 parts of the tape regarding admissibility on direct examination. Perhaps

11 on redirect if -- if it is brought up on cross. Should we be prepared

12 after the voluntariness/admissibility issue is decided to -- to play the

13 rest of the tape, or is that something you don't want to hear, or where do

14 we go from there? And I -- I have had requests from the press that they

15 would like to hear the material, too, because they want to know what's

16 being said.

17 JUDGE AGIUS: We don't do things here because others request them.

18 Let me confer with my colleagues, please, on this.

19 [Trial Chamber confers]

20 JUDGE AGIUS: All right. I don't know if you've ever been a Boy

21 Scout, Mr. McCloskey, but if you haven't, we suggest that you become one,

22 and a good one at that. So our answer to that is be prepared. We don't

23 know what will be the position during or at the end of Mr. Graham's

24 testimony. We may or we may not require. So be prepared for either of

25 the two eventualities.

1 MR. McCLOSKEY: Thank you, Mr. President. I -- I will be. I can

2 recite the Scout oath, but I think that's about it.

3 Can I ask you one more -- one more question? The -- as, I you

4 know you've been listening to me far too much, probably, but I have been

5 suggesting that the issue for Alistair Graham's testimony at first is an

6 issue of the legal issue of voluntariness, and now you have -- have ruled

7 that the issue will be admissibility.

8 Now, admissibility, as we know from the intercepts, can be much

9 broader than voluntariness. It can go to the reliability, credibility of

10 Alistair Graham, I guess, of questions he asked, and because normally a

11 voluntariness voir dire is very short and is pretty much limited to very

12 certain specific issues that go to voluntariness, but if my understanding

13 that this is -- goes to admissibility, a much broader topic, then they're

14 able to cross-examine on an a much broader topic than -- than

15 voluntariness. The -- our intention for what we did on -- in our direct

16 examination may -- may change. So in fact if it's a full frontal, full

17 attack on reliability, credibility as we've seen your decisions relating

18 to the intercepts, it may make, well, more sense from the Prosecution's

19 perspective for you to see this product before the attack. If it's a full

20 attack, you had should see the product before the attack, and -- but if

21 it's a limited voluntariness issue, you see, you see the person in charge

22 of voluntariness, the investigator, and he's challenged by everyone. So

23 if it's a full attack on the whole process, on the whole interview, the

24 best way to do that would be to see the whole interview and then attack

25 the whole interview.

1 What I was suggesting was the voluntariness issue first. If the

2 voluntary hurdle is met, then the document -- it should be admissible

3 against Borovcanin and it should be accepted into court against him, and

4 then the issue of acceptance against others could be argued. And if

5 overall credibility of the overall document -- or interview was going to

6 be challenged, then we'd play the tape at the point and then all the

7 cross-examinations occur. But I don't think it's fair to have a challenge

8 to this entire product without you seeing the product first.

9 JUDGE AGIUS: Yes, Mr. Josse and Mr. Lazarevic. I think I'll give

10 the floor to Mr. Lazarevic first.

11 Mr. Lazarevic.

12 MR. LAZAREVIC: Thank you, Your Honour. I believe it has to do

13 with it. What we suggest, after I heard what Mr. McCloskey said is that

14 he's trying to put these interviews through the back door in this way.

15 The way we understand it, if Mr. McCloskey intends to play the

16 tape before a decision of this Trial Chamber is issued about the

17 admissibility of the interviews, that would cause serious prejudice

18 against not just Mr. Borovcanin but against -- but towards all the other

19 of the accused. So it is our position - I apologise - that first a

20 decision about the admissibility of the interviews should be decided by

21 this Trial Chamber, and I have to say at this moment if the Trial Chamber

22 decides that these interviews should be added into evidence, we will ask

23 for certification against such an appeal. I believe Your Honour had

24 already anticipated this I believe a day or two ago when we had similar

25 discussion. You told us that whatever the decision on admissibility would

1 be, either the Prosecution or the Defence would appeal against it.

2 So I'm strongly objecting of playing tapes before the question of

3 admissibility is decided.

4 JUDGE AGIUS: I thank you, Mr. Lazarevic. Mr. Josse.

5 MR. JOSSE: Could I make this different practical observation,

6 Your Honour, in relation to Mr. McCloskey's plea as to whether he needs to

7 be prepared. The Trial Chamber has understandably restricted our

8 cross-examination to the issue admissibility. We will not be in a

9 position to know whether we need then to cross-examine Mr. Graham in the

10 event, one, the interview is ruled admissible until the question of

11 admissibility as against the other accused is also decided upon, because

12 of course the questions we might ask so far as that's concerned are

13 completely different.

14 JUDGE AGIUS: You're hundred per cent correct.

15 MR. JOSSE: And -- yes. Well, I don't need say any more.

16 [Trial Chamber confers]

17 JUDGE AGIUS: Okay. Judge Prost will be answering your question,

18 Mr. McCloskey, and more or less it draws from a point that we made when we

19 first started discussing this when we called on Mr. Lazarevic to be more

20 precise in -- in his submissions and at least give us an indication of

21 what he was contesting within the framework of admissibility.

22 So Judge Prost, please.

23 JUDGE PROST: Yes. Basically it's as the President has indicated,

24 Mr. McCloskey. We anticipate the issue of admissibility to be a confined

25 one in this instance based on the grounds of which counsel for

1 Mr. Borovcanin had already outlined to you as the basis for the legal

2 arguments which will be advanced in relation to the admissibility issue.

3 It is certainly broader than just voluntariness because he made

4 reference to things such as adequate representation, the nature of the

5 cautions that were given, things of that nature. So it is not strictly

6 just in a pure common law tradition of voluntariness, but it is not in our

7 view a question that goes to the broader issues of overall credibility,

8 how questions were put in the sense of assessing the substance of the

9 interview.

10 We expect the arguments, the cross-examinations, and the

11 submissions to focus on admissibility issues of that nature include

12 voluntariness. Obviously, some of the other counsel may identify some

13 other legal issues and those may have been determined case by case as they

14 relate to admissibility, but we are not anticipating a broad ranging

15 challenge that deals with the substance of the interview. It is

16 restricted as indicated to what's been identified as the legal issues to

17 admissibility.

18 [Trial Chamber confers]

19 JUDGE AGIUS: Yes, but he's reframed it in a rather different way

20 today. We are also answering your posit, namely, that according to you

21 it's more appropriate that this audio recording be played before we start

22 this whole process. Our answer is no.

23 MR. McCLOSKEY: Mr. President, I -- based on the -- the

24 clarification, I would agree. With those limited issues, there is -- it's

25 not appropriate to play -- play it, but I was going on the way I -- we

1 viewed admissibility in the intercept context, which was everything,

2 but -- and so I thank you for that clarification. And -- however, as I

3 would request that it has -- other Defences have legal issues along the

4 same lines that we be allowed to hear them now as would be appropriate for

5 any legal issues, especially regarding admissibility.

6 It is normal to receive this information in writing, which is

7 fine. We don't need that. But we should have some idea of where they're

8 planning -- where others are planning to go. If it's within the context

9 of Mr. Lazarevic's statements, fine, but if there's something new -- legal

10 issues are not the kind of thing that pop up in the middle of a

11 discussion -- I mean, in the middle of a hearing like this. These are

12 issues that people are prepared for and that the Prosecution should have

13 notice of. If there's anything new. If there's not, we're fine.

14 JUDGE AGIUS: Thank you. Does any one of the Defence team wish to

15 address this issue? Yes, Mr. Bourgon.

16 MR. JOSSE: I would ask till close of business tomorrow for the

17 remaining six accused to notify the Prosecution in writing as to whether

18 any further issues arise. It's simply not a question I could answer at

19 this very moment.

20 JUDGE AGIUS: Okay. I think that's fair enough. That's fair

21 enough.

22 [Trial Chamber confers]

23 JUDGE AGIUS: All right. Agreed. So you will have until the end

24 of business of tomorrow -- tomorrow's Friday. Okay.

25 Yes. Does anyone wish to address the Chamber on anything else?

1 Yes, Mr. Bourgon.

2 MR. BOURGON: [Interpretation] Thank you, Mr. President. With your

3 permission, I'd like to address the Chamber with regard to a delicate

4 subject, and I would like to do it in private session, please.

5 JUDGE AGIUS: Yes. Let's go into private session.

6 [Private session]

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15 [Open session]

16 JUDGE AGIUS: We are in open session now, and if there is no other

17 business to transact, we will adjourn. Please be prepared with

18 Alistair Graham on Tuesday and with -- as I explained, the possibility --

19 either two possibilities. We can't tell you whether we will require the

20 use of that tape.

21 Thank you. Have a good afternoon.

22 --- Whereupon the hearing adjourned at 11.44 a.m.,

23 to be reconvened on Tuesday, the 17th day

24 of July, 2007, at 2.15 p.m.

25