Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13813

1 Tuesday, 17 July 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.20 p.m.

5 JUDGE AGIUS: Madam Registrar, could you kindly call the case,

6 please.

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

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

9 JUDGE AGIUS: I thank you, ma'am. And good afternoon to everyone.

10 For the record all the accused are here. From the Defence teams, I notice

11 the absence of Mr. Haynes, Mr. Bourgon and Mr. Ostojic. Prosecution has

12 strengthened its team, it seems. They have got Mr. McCloskey,

13 Mr. Nicholls, Mr. Thayer, but I also see two new faces. Yes,

14 Mr. Nicholls?

15 MR. NICHOLLS: Good afternoon, Your Honours, we are joined today

16 by Nicole Janisiewicz, and Moya Magilligan who are helping today.

17 Unfortunately Ms. Stewart couldn't be here today. She had to return home

18 suddenly.

19 JUDGE AGIUS: That's fully understandable. I thank you,

20 Mr. Nicholls, for keeping the Trial Chamber informed.

21 I understand that there are some preliminaries here, preliminary

22 issues you wish to raise. Yes, Mr. Meek?

23 MR. MEEK: Thank you, Mr. President, Your Honours. Good

24 afternoon. There is a preliminary matter I would ask the Chamber to enter

25 an order to see sequester Mr. McCloskey from this hearing due to the fact

Page 13814

1 that the witness who is coming to testify, who was the -- who was an

2 investigator who allegedly or purportedly took statements in question, and

3 I know you all have not looked at those statements, but I can tell you

4 that about 75 per cent of the questioning was done by Mr. McCloskey in the

5 first interview, and approximately 60 per cent or thereabouts in the

6 second. And I may very well, and I think I will call him as a witness and

7 that being the case, and I've talked to Mr. McCloskey about this this

8 morning, and so I just ask that he be sequestered. If he's going to be a

9 witness, then he shouldn't be allowed really to listen to what Mr. Graham

10 testifies concerning.

11 JUDGE AGIUS: I thank you, Mr. Meek.

12 Does anyone wish to respond to that, either Mr. Nicholls or

13 Mr. McCloskey?

14 MR. NICHOLLS: I'll go first. I strongly object to that. There

15 hasn't been any ground given other than this I may call him as a witness.

16 I don't know first of all, why he -- why Mr. Meek would have any reason to

17 call Mr. McCloskey as a witness when we have the investigator who was

18 present during the entire recording. And second, since we have a

19 transcript of the interview and we have audio of the interview, it's no

20 secret what went on in that interview, and I'd like to know why and for

21 what purpose he intends to call him as a witness because if it's a whim of

22 his, I'm not going to agree.

23 JUDGE AGIUS: Thank you. Mr. Meek?

24 MR. MEEK: Well, very simply, Your Honour, I do intend to call him

25 as a witness and while it may very well be easy for Mr. Nicholls to say

Page 13815

1 that the investigator was present the whole time during the questioning or

2 the entire recording, there are instances, Your Honour, where

3 Mr. McCloskey was not in the presence of the investigator. However, he

4 was in the presence of the -- and with Mr. Borovcanin's lawyer outside --

5 that's not taped -- and that's approximately 25 minutes.

6 JUDGE AGIUS: Okay. Yes, Mr. Nicholls?

7 MR. NICHOLLS: I see no reason why that would make Mr. McCloskey a

8 witness. Lawyers always talk during interviews, lawyers talk before

9 court, after court. The fact that Mr. McCloskey was sometimes talking

10 with Mr. Borovcanin's lawyer, still that's a very cryptic reason and

11 ground for sequestering the senior trial attorney and saying you're going

12 to call him as a witness.

13 If he needs a witness to those conversations, I don't know why he

14 doesn't approach the other party who was not a party to this case, who was

15 not -- I don't know whether he has talked to the lawyer who was present at

16 the time but that would clearly obviate the need, if there is any need at

17 all anyway, for Mr. McCloskey to be a witness or to leave this room.

18 JUDGE AGIUS: I thank you, Mr. Nicholls.

19 MR. MEEK: Just very briefly, Your Honour.

20 JUDGE AGIUS: Take your time, Mr. Meek.

21 MR. MEEK: Very briefly, Your Honour, the reason that

22 Julian Nicholls is taking this witness and not Peter McCloskey is very

23 evident and that reason is is that Peter McCloskey is too close to these

24 interviews and that's why he's sitting in the back chair and not

25 questioning this witness.

Page 13816

1 JUDGE AGIUS: Thank you. Yes, I was just about to say usually we

2 would prefer to hear it from the horse's mouth. I'm not attributing

3 equine -- anything equine or equine to you Mr. McCloskey, but I see that

4 you are volunteering a statement. Go ahead.

5 MR. McCLOSKEY: Yes. Mr. Meek's last statement is simply not

6 true. The reason that Mr. Nicholls is handling this is just for

7 simplicity because we've heard earlier that there were may be allegations

8 that were made and it's much simpler this way. We are not acknowledging

9 or suggesting or agreeing that there is anything untoward about being

10 involved in an interview. This Tribunal and this -- the OTP was founded

11 upon the principle that a lawyer was in the investigating team from the

12 very beginning of this Tribunal. I was that lawyer in the Srebrenica case

13 and have been always that lawyer. It was absolutely necessary and

14 appropriate for me to be involved in taking these interviews. So there is

15 nothing wrong with that.

16 Today we have a burden to show you that this was a free and

17 voluntary interview. We would like to get on with it and the allegations

18 and the other issues, I don't know where this is coming from, and there

19 has been no legal grounds suggesting I need to be part of anything that

20 has been put forward. This appears to be an effort just to drag one of

21 the lawyers through the system, which would be a real problem because in

22 any system it's crucial for prosecutors to be able to speak to counsel for

23 witnesses, counsel for accused, and be able to do it freely, to discuss

24 what, as you know as a former Defence counsel, is discussed in all

25 systems, and if either side, either Defence lawyer or Prosecutor is going

Page 13817

1 to be dragged without any grounds except that I intend to call him as a

2 witness, this puts a terrible chilling effect on the ability for lawyers

3 to talk with other lawyers about the legal matters that are so important.

4 So I am of course here ready to serve the Court and -- but we would like

5 some kind of solid grounds before we go any further in this area and we

6 would like to get on, we brought Mr. Graham here and we're ready to go.

7 JUDGE AGIUS: Yes, Mr. Meek?

8 MR. MEEK: Just one final word, Your Honour, and that is this

9 hearing is a hearing regarding the admissibility of a statement of a

10 co-accused or an accused in this case but it's a two-pronged step, and if

11 you find that it was -- it is admissible, the second question that you

12 need to reach is, is it admissible only against Mr. Borovcanin or is it

13 admissible against any other accused he may have mentioned? And that

14 therein lies the problem that I believe Your Honours should sequester

15 Mr. McCloskey because I am going to call him as a witness.

16 JUDGE AGIUS: All right. Thank you. Remaining on the team of

17 horses, actually, in my mind, I am thinking that we may be putting the

18 cart before the horse to an extent. Let me explain why.

19 Let's go to the ultimate move that Mr. Meek is hinting at, namely,

20 that at some later point in time, not only does he intend now, but he is

21 sure that he will summon you as a witness, Mr. McCloskey. Do you think

22 that your presence today or your absence from the courtroom today would

23 make a difference when we come to that stage? One reason that I can

24 mention to you is, for example, that one of the usual practices, although

25 it's not an absolute one, is that if a witness has been present during the

Page 13818

1 testimony of -- during the hearing of evidence in a trial, usually that

2 could amount to an obstacle from then bringing him forward or her forward

3 as a witness, which would in turn affect the idea or the intention that

4 Mr. Meek is intimating as a present to have, namely of summoning you, and

5 that's why he is asking for you to be sequestered, I would imagine. I'm

6 just putting it to you whether you have given this due consideration,

7 whether it would be a major obstacle for you to absent yourself from the

8 courtroom voluntarily, not as a result of a sequestration from the Trial

9 Chamber for the duration of Mr. Graham's testimony.

10 MR. McCLOSKEY: Do I get a room at the Dorint and witness fees?

11 Your Honour, I wouldn't give that three thoughts. I wouldn't leave this

12 courtroom until ordered. I don't -- if Mr. Meek could provide me with

13 some sort of background on why I could be a witness; for example, if it

14 were some sort of fact situation where I happen to run across something in

15 the -- in this crime, but being present during a taped interview of an

16 accused is something that lawyers and prosecutors have done every month of

17 every year that this Tribunal has been in existence, and if we have to

18 leave because of the -- this kind of dramatics that is being pulled here,

19 no.

20 If he can tell me where he's going and what the purpose of this is

21 and if it's something that you think is -- has foundation, I will

22 voluntarily leave, of course, but I can't imagine what it is. To me, this

23 is just something that happens occasionally in my system. It's usually to

24 get the Prosecutor off the trial so a new one comes on. I've reviewed

25 my -- the ethics of my bar association and had this been a jury trial and

Page 13819

1 I could be a witness, then I would be obligated to leave. It says with a

2 court trial I'm not, interestingly enough. I think they think judges can

3 handle this.

4 JUDGE AGIUS: I think in most jurisdictions you would be able to

5 give testimony without the need to renounce to the brief, if I can use the

6 word renounce to the brief, because I don't think it's appropriate in your

7 case but yes, Mr. Meek?

8 MR. MEEK: Well, Judge, Mr. McCloskey intimates that I'm doing

9 this in some fashion to get him off of the case and have a new Prosecutor

10 come in and that's just simply not true. I'm just asking, and you know

11 how many witnesses we've had so far, and different prosecutors have

12 interviewed them but this is a special case. And I'm note asking he be

13 recused for the entire case, I'm just asking for this one witness.

14 Now if what Mr. McCloskey wants me to do is to tell him what

15 questions I'm going to ask him, I don't think that's appropriate. I don't

16 think I should be made to do that. And he knows -- he's a good lawyer,

17 he's a bright lawyer, he's been around, he know what I'm going to ask him

18 about in substance and I've already mentioned it in open court already.

19 But it's up to Your Honours.

20 JUDGE AGIUS: Okay. The other thing that I would like to mention

21 that is -- is that I think there is a big difference between counsel being

22 summoned as a witness, who already, who in any case, even if he's absent

23 from the courtroom, has access to the transcript in any case, and an

24 ordinary witness who is summoned and in no way, unless there is an abuse

25 of the process, would he have at his disposal transcript of the testimony.

Page 13820

1 That is also a difference that I think you ought to keep in mind, if you

2 wish to -- one moment because I am stuck here. Go ahead.

3 MR. MEEK: Well, Your Honour, of course I envisioned that the

4 possibility that if Mr. McCloskey wouldn't do the right thing and agree to

5 leave, which he's now said he won't, and if you sequester him, I would

6 hope that as honourable as he is, he wouldn't go right back and start

7 listening to this testimony or reading the transcripts. He frankly can

8 sit in the witness room where there is no access to it and I assume, I

9 presume, that would be part of the order; that he not listen to the

10 proceedings nor that he listen to the LiveNote or read the LiveNote.

11 JUDGE AGIUS: He is responsible for the Prosecution in this case.

12 He's responsible for the Prosecution. And technically speaking, if the

13 interrogation or the questioning is going to be conducted by Mr. Nicholls,

14 as lead counsel for the Prosecution, supposed to be, let's put it in

15 quotes, supervising Mr. Nicholls, and directing him on what questions to

16 put or what not to put. I mean, it's -- he's in a different position than

17 an ordinary witness.

18 Anyway, this is something of course that we will need to discuss.

19 We'll have a short break when we come to that before we start with the

20 testimony of Mr. Graham.

21 JUDGE PROST: I just had a question, Mr. Meek, just looking at --

22 you indicate that you've already advised us as to the relevance of

23 Mr. McCloskey's purported or proposed testimony, but I'm not clear on what

24 that was. Are you suggesting that what you'd want to have him testify to

25 is not what went on in the interview room with Mr. Borovcanin but what

Page 13821

1 went on with Mr. Borovcanin's lawyer outside the interview room? You're

2 saying that's relevant to what went on inside the interview room? And do

3 I have you correctly?

4 MR. MEEK: Your Honour, you do have me correct. You do have it

5 correctly. One is the issue of what happened outside the "interview," and

6 the second issue is what went on during the interview, because again and

7 you can ask Mr. McCloskey, he'll verify what I say, that the primary

8 interrogator was not Mr. Graham, it was Mr. McCloskey.

9 JUDGE PROST: But you're not disputing, Mr. Meek, that what went

10 on in the interview room is in the transcript?

11 MR. MEEK: No, I'm not disputing that.

12 JUDGE PROST: Thank you.

13 JUDGE AGIUS: Any further preliminaries on your part? Can you

14 wait, Mr. Josse?

15 MR. JOSSE: Yes, it's on a completely different subject.

16 JUDGE AGIUS: That's why I asked you because I guessed so.

17 Mr. McCloskey?

18 MR. McCLOSKEY: Should you know, I have no knowledge that

19 Mr. Bubic, the lawyer, is being called as a witness or has been

20 interviewed by anyone. I've spoken to Mr. Lazarevic about that, and they

21 have no intention of calling Mr. Bubic or challenging any of this. So I

22 don't think you go through the Prosecutor on an issue like this. That's

23 not your first line of defence.

24 JUDGE AGIUS: Do you wish to respond to that, Mr. Meek and we

25 close the discussion here please on this issue.

Page 13822

1 MR. MEEK: I do, Your Honour. First off, if we had a ruling right

2 now that the interview itself, if admissible, is admissible only against

3 the party making the statements, then I wouldn't be standing here. I'd

4 have no objection whatsoever.

5 However, whether or not the counsel who was present on that day

6 will be called as a witness, we haven't come to our Defence case yet,

7 number 1, and number 2, that's what's looming over this whole proceeding

8 is whether there is any probative value to any statements made by

9 Mr. Borovcanin, if it's admissible at all will be admissible against any

10 other co-accused. If you made the ruling that it's not going to be, and

11 those parts would be redacted, I'll sit down and shut up.

12 JUDGE AGIUS: I want to dispel from your mind any idea you might

13 have that this issue of admissibility is going to be dealt with in two

14 stages, now and later on, when we arrive at the defence stage. I mean,

15 that's not what we have in mind for sure. We are going to deal with the

16 admissibility issues related to the Borovcanin statement, alleged

17 statement, we exhaust all the evidence that we have.

18 Yes, Mr. Lazarevic?

19 MR. LAZAREVIC: Obvious a very brief issue, I would just like to

20 confirm that I had the discussion with Mr. McCloskey, and indeed we have

21 no intention to bring Mr. Bubic to give evidence and of course not

22 Mr. McCloskey either.

23 JUDGE AGIUS: Okay. Thank you. I think we will come back to you

24 on this after a short break that we will have when we finish with other

25 preliminaries. Mr. Josse?

Page 13823

1 MR. JOSSE: Thank you, Your Honour. I wrote a few days ago to

2 Mr. Cubbon.

3 JUDGE AGIUS: Yes, I'm coming to that.

4 MR. JOSSE: I'm grateful. Then I think I'll sit down.

5 JUDGE AGIUS: Yes. I didn't want to abruptly stop you there, but

6 I think it will save us a few minutes.

7 I'll come straight to that, in fact.

8 We were informed by Mr. Cubbon with regard to the Prosecution

9 motion for leave to amend the 65 ter list, Exhibit list, with intercept

10 corroborating documents, which was filed on the 6th of July, that

11 notwithstanding the fact that on the 9th of July I invited all Defence

12 teams to respond to the -- that motion by the end of last week, if

13 possible, then transpired that you had missed the fact that I had

14 suggested this deadline, and you are asking for permission to be able to

15 file your response by the close of business of tomorrow; if -- I stand

16 corrected if that is not so.

17 MR. JOSSE: That's right, Your Honour. Your Honour has

18 encapsulated it perfectly. We were in error. I will say in fairness that

19 Your Honours had couched it not in terms of an order but as a preferable

20 course. I'm afraid we have not adopted the preferable course.

21 JUDGE AGIUS: Okay. And you may have noticed also that I had -- I

22 was using more or less words which reflect precisely what I was supposed

23 to have stated on the 9th of July in any case. So, yes, permission is

24 granted, permission is granted.

25 MR. JOSSE: Thank you.

Page 13824

1 JUDGE AGIUS: Thank you. We are also informed that, having

2 received all these responses you wish to file a reply to -- or a response

3 to the Defence responses? Is that the correct information that we have

4 received?

5 MR. McCLOSKEY: Yes, Mr. President. Mr. Vanderpuye has a brief

6 response on some of the issues that were brought up.

7 JUDGE AGIUS: All right. In that case we can fix a deadline.

8 [Trial Chamber confers]

9 JUDGE AGIUS: All right. Then assuming you would have received

10 Mr. Josse's reply by the 18th, you have up to the 20th to file that. One

11 thing we want to make clear is that this matter will not be decided before

12 the recess but only after.

13 All right. Ms. Nikolic, you will recall that over the past week,

14 you know exactly what I'm talking about, I'm referring to your urgent

15 motion for urgent disclosure of all Rule 68 material. You had intimated

16 that roughly you were expecting the final material from the Prosecution at

17 least on two or three occasions last week. If you could please enlighten

18 us on -- update us on this issue?

19 MS. NIKOLIC: [Interpretation] Yes, Your Honour. Good afternoon.

20 All the material that we requested from the Prosecution has been submitted

21 by now so we withdraw our urgent motion for disclosure, and I believe all

22 the further requests would be dealt with between the parties without your

23 intervention. Thank you.

24 JUDGE AGIUS: I thank you. So we'll take note of that. You don't

25 need to file anything.

Page 13825

1 One moment. Yes. The Borovcanin Defence team, on the 3rd -- I'm

2 not sure about the date. Yes, on the 3rd of July, 2007, filed

3 confidentially a request for certification of an interlocutory appeal

4 against our decision on Prosecution's confidential motion for testimony of

5 Witness 88 to be heard via videolink. Under normal circumstances, our

6 decision, which is going to be oral in this case, would have been given in

7 private session, but in our decision we will not be making any reference

8 to who this person is or to where he now lives or where he lived, so we

9 can dispose of the motion for certification in open session.

10 So as stated we are seized of this Borovcanin Defence team motion.

11 We note that the granting of certification is discretionary and in the

12 hands of the Trial Chamber, and that Rule 73(B) sets forth that

13 certification may be granted by a Trial Chamber if the decision impeached

14 involves an issue that would significantly affect the fair and expeditious

15 conduct of the proceedings or the outcome of the trial and for which in

16 the opinion of the Trial Chamber, an immediate resolution by the Appeals

17 Chamber may materially advance the proceedings.

18 The Trial Chamber considers that the manner by which Witness 88

19 will give testimony does not significantly affect the fair and expeditious

20 conduct of the proceedings or the outcome of the trial, for that matter,

21 since the Defence's right to cross-examination will not be affected and

22 neither will the broader right to a fair trial.

23 Further, the test for videolink applications is whether it would

24 be in the interest of justice, taking into account the particular

25 circumstances of -- in each instance. The decision therefore being

Page 13826

1 particular to its facts does not affect the overall conduct of the trial

2 proceedings. For the same reasons, the Trial Chamber does not consider

3 that an immediate resolution by the Appeals Chamber of this issue would

4 materially advance the proceedings.

5 Consequently pursuant to Rules 54 and 73(B) of the rules we hereby

6 dismiss the request for certification.

7 One moment. I need to consult my colleagues.

8 [Trial Chamber confers]

9 JUDGE AGIUS: There are other matters that we need to communicate

10 to you but I think we need to take a short break now to discuss the matter

11 raised by Mr. Meek, and we hope to be back with you within a short time.

12 Thank you.

13 --- Break taken at 2.51 p.m.

14 --- On resuming at 3.20 p.m.

15 JUDGE AGIUS: Let's dispose first of the matter raised by

16 Mr. Meek.

17 This is of course an oral decision and it will not be followed by

18 a written one.

19 The first premise of our decision is predicated on the very nature

20 of the practice in this Tribunal, which is particular, namely, that

21 officers of the Office of the Prosecutor prosecuting in a trial would

22 normally have been involved personally in the investigation stage, and in

23 the interview of prospective witnesses and suspects. This is, as I said,

24 particular to this Tribunal and any comparison with common law and civil

25 law practices, which vary greatly, would in our opinion be futile.

Page 13827

1 This fact calls for particular attention when a Trial Chamber is

2 dealing with motions like the one you made, Mr. Meek, on behalf of the

3 Beara Defence team today, because of the broader impact it would have, the

4 outcome of such motion could have. Given the practice in this Tribunal

5 and the submissions made, we do not see any valid reason to sequester

6 Mr. McCloskey during the testimony of Mr. Alistair Graham. Further and

7 finally we wish to point out that any intention on the part of a counsel

8 to summon Mr. McCloskey as a witness would have to be the subject of an

9 ad hoc motion.

10 So that clears up that issue from our table.

11 Now you will recall that we have had lengthy discussions on the

12 issues related to the testimony of Mr. Alistair Graham and the alleged

13 Borovcanin statement. We have already informed you that later on, first

14 we will proceed with the testimony of Mr. Graham, limited to admissibility

15 matters or issues, and later on we will need to decide, and we will

16 decide, on the admissibility of the alleged Borovcanin statement vis-a-vis

17 Mr. Borovcanin himself. We would also have to decide on the admissibility

18 of the same alleged statement vis-a-vis any or all of the other accused.

19 However, the arrival of Mr. Alistair Graham here has been preceded

20 also by two motions by the Prosecution, seeking leave to add some

21 documents to the 65 ter list, I'll be referring to them very shortly and

22 very succinctly, and a number of responses to the same motions. Basically

23 what is being questioned is the admissibility of these documents on the

24 grounds that, first, they should not be included in the 65 ter list for

25 reasons that have been propounded in the various responses; and secondly,

Page 13828

1 and for that reason, that the Prosecution should not be allowed to make

2 use of them during the testimony of Mr. Alistair Graham.

3 We are talking of two transcripts disclosed to the Defence on the

4 22nd of September, to audio recordings, and more or less the discussion on

5 these four documents is -- has been more or less superseded by the

6 decision that we have already taken allowing the Prosecution to make use

7 of them in the course of the testimony of Mr. -- and the Defence, not just

8 the Prosecution, testimony of Mr. Graham.

9 Then five employment records relating to Mr. Borovcanin which were

10 disclosed to the Defence on 3rd of July, four documents created by

11 Mr. Borovcanin during one of the interviews which were disclosed to the

12 Defence on the 3rd of July of this year, one DVD shown to Mr. Borovcanin

13 during one of the interviews which was disclosed to the Defence on the

14 26th of June of this year, four documents chronicling the efforts to

15 interview Mr. Borovcanin which was disclosed to the Defence on the 3rd of

16 July. Then, on this -- all this was the subject of the Prosecution motion

17 of the 6th of July of this year. Then six days after, that's on the 12th

18 of July, the Prosecution filed a second motion seeking leave to supplement

19 its previous motion by seeking to have added to the 65 ter list a further

20 three documents from Republika Srpska that further chronicle the

21 Prosecution's efforts to interview Mr. Borovcanin.

22 We have seen the two motions. We have also seen all the responses

23 received from Mr. Borovcanin himself, from Miletic and Beara Defence

24 teams, and others. I don't need to repeat them all. We have given these

25 motions and responses a lot of thought and on behalf of the Trial Chamber

Page 13829

1 I wish to thank you for all the work and the time you dedicated in

2 preparing them and filing them. We have given them a lot of thought, and

3 the final decision that we have arrived at is that at this stage, with the

4 information that we have, it is somewhat premature for us to decide

5 definitively on whether to include them in the 65 ter list or not. But on

6 the other hand, there is an impelling need to proceed with the testimony

7 of Mr. Graham, and we believe that while we reserve our position to decide

8 on the Prosecution, two Prosecution motions in due course, for the time

9 being, while leaving that issue unprejudiced, we will allow, permit, the

10 Prosecution to make use of any of these documents that it might wish to

11 make use of, subject, of course, to any ultimate decision that we may take

12 after we have had more -- given more thought and considerations to the

13 various submissions that have been made. And later on, of course, we will

14 come down with our decision, which will be in writing. Okay?

15 So I don't think there is anything else preliminary to Mr. Graham

16 being admitted to the courtroom. Yes, Mr. Meek?

17 MR. MEEK: Mr. President, Your Honours, if I understand you well,

18 then, the Prosecution is allowed to use the exhibits that are still

19 pending the motion, including the entire transcripts and the entire audio?

20 In this hearing?

21 JUDGE AGIUS: Yes. Let's put it like this: Those four documents,

22 two transcripts and two audios have already, in a way, been dealt with by

23 our previous decisions. You will recall that Mr. McCloskey initially

24 asked to be able to play certain excerpts. We have disposed of that in

25 the way we have. Implicitly, we were already telling the Prosecution, if

Page 13830

1 you need to make use of this document, the audio, with the witness, you're

2 free to do so but very limitedly within the parameters we have stated.

3 MR. MEEK: Thank you, Your Honour.

4 JUDGE AGIUS: The rest, in other words, leaving alone the two

5 transcripts, two audio recordings, we are saying, at the moment we think

6 it's premature on our -- it would be premature on our part to pre-empt the

7 issue and decide before Mr. Graham takes testimony. The understanding is

8 that granting the Prosecution use of these other documents for the purpose

9 of what the witness is going to testify doesn't mean that they have

10 admitted these documents from the back door or from a window instead of

11 from the front door. That ultimately will be decided and whatever happens

12 today will be without prejudice to what we can ultimately decide on

13 whether these documents ought to form part of the 65 ter list, and

14 therefore whether they could be made use of. Obviously if we decide

15 against including them in the 65 ter list, there will be consequences but

16 the understanding is that what is happening today is with that knowledge,

17 aforeknowledge, that could misfire, in other words.

18 MR. MEEK: So I just want to make sure, the portions that they are

19 allowed to use go to the issue of the admissibility or voluntariness only?

20 Correct? Thank you.

21 JUDGE AGIUS: That's how I understand it.

22 MR. JOSSE: Could I be clear about this? What the Chamber is

23 about to embark upon is a voir dire. Will this evidence be evidence in

24 the trial proper?

25 JUDGE AGIUS: Well it's a trial within a trial. It's part because

Page 13831

1 it's --

2 [Trial Chamber confers]

3 JUDGE AGIUS: Let's make this clear because as you know I think

4 this is one Chamber where we have equal representation from the systems,

5 and therefore, while a voir dire -- the voir dire concept is easily

6 digested by me, for instance, that's not the case with others. So our

7 common position is as follows: That although we fully understand what you

8 mean, Mr. Josse, that basically we are looking at this rather than from

9 the strict perspective of a voir dire as one further stage in the

10 development of this trial.

11 Later on we will take a decision which will first cover the issue

12 of admissibility and if there is a decision in favour of admissibility,

13 then the next stage would be what weight to give to the testimony. So you

14 may or may not call it a voir dire, but we consider it as an integral part

15 of these proceedings.

16 MR. JOSSE: And if I could excuse this shorthand, this is only to

17 do with voluntariness and the such like at this stage?

18 JUDGE AGIUS: We are talking of -- I think we went through this

19 last time.

20 MR. JOSSE: The issue that is Mr. Lazarevic outlined, yes.

21 JUDGE AGIUS: We went through this last time. There may be other

22 issues of admissibility that we sort of agreed will not be the subject

23 matter of Mr. Graham's testimony. In other words, we were limiting it to

24 what Mr. -- because I think Mr. McCloskey himself rose last time and

25 mentioned two aspects which, strictly speaking, could attach to the issue

Page 13832

1 of admissibility, but we agreed that that's not what we were going to

2 concentrate upon.

3 MR. JOSSE: Thank you.


5 Yes. I think Mr. Graham, and please explain to him that we

6 haven't kept him waiting capriciously.

7 MR. NICHOLLS: Could I just ask when the next break is going to be

8 so I don't run through it. --.


10 MR. NICHOLLS: I'm a bit lost because.

11 JUDGE AGIUS: A very good question because normally it would be in

12 ten minutes' time. Ram, I think you have to work this out, please. I

13 think you have to consult with the technical staff, interpreters,

14 et cetera, because the break as such that we had a relatively short one,

15 so you tell us when we shall have the break.

16 [The witness entered court]

17 JUDGE AGIUS: All right. With the indulgence of the rest of the

18 staff, to whom I'm very grateful and thank you, next break will be at 4.15

19 and it will be a full break.

20 Good afternoon to you, Mr. Graham.

21 THE WITNESS: Good afternoon, Your Honour.

22 JUDGE AGIUS: And welcome to this Tribunal with which you are

23 familiar. Prior to your testimony could you kindly make the solemn

24 declaration which is required by our rules?

25 THE WITNESS: I solemnly declare that I will speak the truth, the

Page 13833

1 whole truth and nothing but the truth.


3 JUDGE AGIUS: Thank you. I think I can avoid preliminaries.

4 Mr. Nicholls, please make yourself comfortable. Mr. Nicholls will go

5 first and then you will be cross-examined by the various Defence teams.

6 Examination by Mr. Nicholls:

7 Q. Thank you, Your Honours. Good afternoon, Mr. Graham.

8 A. Good afternoon.

9 Q. As you know we are both speaking the same language, so let's try

10 to have a little break between our questions and answers so that the

11 interpreters can stay with us. Can you please give me your full name?

12 A. Alistair Paul Graham.

13 Q. When were you born?

14 A. 21st of May 1962.

15 Q. And which country were you born in?

16 A. In England.

17 Q. I want to first quite briefly go through some of your background.

18 What is your current occupation?

19 A. I'm a detective inspector with the Lancashire police which is a

20 provincial force in England.

21 Q. Could you run through for the Trial Chamber, please, your career

22 from the beginning of joining the field of law enforcement, where you

23 first worked as a policeman and the subsequent steps in your career?

24 A. I joined the police, Lancashire police, in 1985 as a uniformed

25 police officer. I moved in 1990 to become a detective constable. In 1991

Page 13834

1 I was promoted to the rank of detective Sergeant. I undertook a number of

2 roles in that rank until January 1998 when I became a temporary

3 detective inspector. In June 1998, I then joined the Tribunal as an

4 investigator, assigned to the team that was investigating the crimes

5 committed in and around Srebrenica in 1995. I remained in that role until

6 1999, I think it was August, when I became temporary and then the

7 permanent head of mission in the ICTY's field office in Kosovo.

8 I remained there until May 2001, when I returned to The Hague as

9 an investigations team leader with responsibility initially just for the

10 Srebrenica investigation and trial-related matters, but as the Tribunal

11 started to downsize, I took on responsibility as team leader for other

12 investigations and trial support issues. I remained in that role until

13 October 2004 when I left the Tribunal, and I became a consultant

14 investigator with the UN investigation into the oil-for-food based in

15 New York. I remained with that, the inquiry committee there, until

16 December 2005, when I returned to the U.K. to my home police force. I

17 returned there as a detective sergeant, held a number of temporary roles,

18 and then was promoted to substantive inspector earlier this year.

19 Q. Thank you. I want to jump now to -- right away to the reason

20 you're here as a witness and to discuss the interviews you conducted with

21 Mr. Borovcanin. I want to talk first about the first interview from 20th

22 of February 2002. Can you explain briefly in your own words how that

23 interview came about, how Mr. Borovcanin -- how Borovcanin was brought to

24 the place where he was interviewed, the process by which he was notified

25 of the interview?

Page 13835

1 A. At that time there was a protocol in place whereby an official

2 request was put through the requests unit here at the Tribunal. It went

3 to a representative of the RS authorities, Mr. Jovicic, and it went

4 through that way for the request to be made for people to be made

5 available for interview.

6 Q. All right. I'd like to show you some documents now on e-court.

7 The first is 02864, and I think it should be page 5. Now it may take a

8 minute to appear but an image of a document should appear on the screen in

9 front of you in a minute. And we are going to go -- need to go to page 5,

10 which is ERN 06106273 in the English original. Thank you.

11 Now, that's a little bit small. I can't -- are you able to read

12 that on your screen?

13 A. Yes, I can see it clearly.

14 Q. Okay. Thank you. This is a summons dated 11 February 2002. It's

15 fairly obvious, but can you just tell us what this is, this document?

16 A. It's almost the pro forma that was used to go through the request

17 unit to request the RS authorities to make somebody available, and this

18 was the actual, the summons document, that we would ask to be passed to

19 the relevant person.

20 Q. Thank you. And if we look at paragraph 3, is the summons to

21 interview Mr. Borovcanin as a witness or as a suspect?

22 A. To be questioned as a suspect.

23 Q. Thank you. I'd like to now go to -- it should be the next page,

24 page 6. This is also dated 11 February 2002. It's a Prosecutor's

25 undertaking regarding Mr. Borovcanin. Can you just tell us what these

Page 13836

1 documents are used for, or were used for at that time?

2 A. It was really a confirmation of safe passage for whoever was being

3 summonsed. The RS authorities felt it would assist people to come if they

4 knew that they would have safe passage to and from an interview, and it

5 was not entrapment to have them arrested.

6 Q. Thank you. I'd like to now go to a different 65 ter number,

7 02865, page -- if we could have the translation as well in English. It's

8 too small for me to tell if it's the correct -- that's correct. We need

9 the English larger for Mr. Graham to be able to read it. This is a

10 document with a number ICTY-2-TJ-213/02, a letter from Mr. Jovicic you

11 referred to to the Ministry of Justice. Can you just explain to us, if

12 you can, what this letter was for in relation to the summonses we have

13 been talking about?

14 A. I played no part in this particular part of the process, but I

15 understood this to be the letter from Mr. Jovicic that went through to the

16 Ministry of Justice in Republika Srpska to have the summonses delivered.

17 Q. Okay. Next one I'd like to look at is P02864, at page 9, if we

18 can have the English up there.

19 Now, this is a document dated 20th of February 2002, with the same

20 reference number as the previous document, from Mr. McCloskey -- to

21 Mr. McCloskey from Mr. Jovicic, and very simply, was this standard to get

22 these type of letters showing that summonses had been served and signed

23 for?

24 A. Yes. This was a standard response.

25 Q. And if we can go to page 10 now, please, and if we could also have

Page 13837

1 the English up, please? And again, fairly clear but this document dated

2 the 18th of February 2002 is the receipt for the service of summons signed

3 by Mr. Borovcanin; is that correct?

4 A. Yes. It's definitely a signed receipt. I'm assuming it's his

5 signature.

6 Q. Thank you. I'm done with those documents now.

7 Now, on the -- did Mr. Borovcanin -- well, did Mr. Borovcanin

8 appear for his interview on the 20th of February 2002, in the morning?

9 A. Yes, he did.

10 Q. As best you recall, who did he come with, if anybody? Did he come

11 by himself or with anybody?

12 A. I don't actually recall seeing him with anybody when I first met

13 him.

14 Q. Just to be clear, prior to that morning, had you ever met

15 Mr. Borovcanin?

16 A. No, I had not.

17 Q. And had you ever spoken to him?

18 A. No, I had not.

19 Q. Now, before the interview started, did he say whether he was --

20 whether he would have an attorney for the interview?

21 A. I don't know how the conversation came about. The assumption that

22 I had was that an attorney would be there. It was definitely a

23 conversation when I asked where the attorney was, and I was told he would

24 be coming later. But the exact content of that conversation I can't

25 remember after this length of time.

Page 13838

1 Q. All right. Thank you. And who was present for the interview, and

2 if you have any difficulty remembering the names of anybody, interpreter

3 or something, I've got the transcript.

4 A. For the first interview I recall Mr. Borovcanin was present,

5 Mr. McCloskey, myself and the interpreter, who I think was Ms. Markovic.

6 Q. And can you tell us, we will look at it a little later, but how

7 did that interview begin?

8 A. It began -- I would -- I began the interview by putting the tapes

9 on and then going through the -- Mr. Borovcanin, his rights with him.

10 Q. And I was going to ask you, you've gone ahead which is good. How

11 was the interview recorded, just very plainly if you can tell us what

12 kinds of equipment it was and whether it was digital or -- you've already

13 said it was taped?

14 A. It was a tape recorder with a small microphone that stood on the

15 table.

16 Q. All right. What I'd like to do now, Your Honours, is play the

17 very beginning of the interview of 20th of February 2002. It's a segment

18 of approximately ten minutes, which is essentially the introduction and

19 the -- Mr. Graham advising Mr. Borovcanin of his rights?

20 JUDGE AGIUS: Is it going to show anything which is different from

21 what we can read out from the transcript? Because our decision was very

22 clear. I have it here. We had restricted -- basically you will -- what

23 we decided was that as long as what you wished to play is already

24 reflected in the transcripts, there is no need for you to play it. But if

25 there is anything that goes beyond what we can perceive through -- from

Page 13839

1 reading the transcript, then you are of course allowed to make use of the

2 video recording. That was the understanding.

3 MR. NICHOLLS: I'm sorry, Your Honour, the only point it adds is

4 to the transcript. The transcript is accurate and our friends have helped

5 us make some corrections late last night to a couple words. What it does

6 add only is hearing the clarity in the way people are speaking, the tone

7 of voice, how long there are between questions and answers, and any lag

8 that there might be or lack thereof.

9 The issue is the -- how Mr. Borovcanin was advised of his rights

10 and how clearly and well it was done, and I just thought you can actually

11 hear how it was done. I was only going to play this first segment, but it

12 is possible to see the words, the exact words, on the transcript.

13 JUDGE AGIUS: Yes, but, yes, Mr. Meek?

14 MR. MEEK: Excuse me, Your Honour, but I've been given, and I

15 think the rest of the Defence teams, 16 pages of items from the

16 transcripts that go to the issue, and when Your Honour mentions at

17 page 27, line 21 and 22, when you say we decided that as long as what you

18 wish to play is already reflected in the transcripts, there is no need to

19 play it, I guess my question is do you also -- does the Bench also have

20 these 16 pages?

21 MR. NICHOLLS: No. He can ask me. I have not passed those out

22 yet.

23 MR. MEEK: Thank you.

24 JUDGE AGIUS: The position, as I see it, you wish to speak,

25 Mr. Lazarevic?

Page 13840

1 MR. LAZAREVIC: Well, yes, Your Honour, I was trying to object,

2 but Mr. Meek was faster than myself. Basically, I understood Trial

3 Chamber's ruling precisely just like you put it straight away to

4 Mr. Nicholls. I mean, there is absolutely no difference between what's on

5 the tape with these transcript. Furthermore this transcript is a bit more

6 accurate because it does indicate that a certain portion was not

7 translated to Mr. Borovcanin, and we have absolutely no dispute with the

8 Prosecution that that's it.

9 JUDGE AGIUS: Our decision, Mr. Nicholls, was very categoric. We

10 had stated that with one exception, we do not see any need for the playing

11 of the tape in whole or in part at this stage with respect to the question

12 of admissibility. The only exception that we granted would be where the

13 Prosecution can establish that the playing of a portion of the tape is

14 directly relevant to the question of admissibility, and the point that

15 would be demonstrated is not apparent from the transcript itself. Now,

16 you're jumping the gun because basically if later on Mr. Lazarevic or

17 others will question the proprietness or the -- and adequacy of the

18 caution that was done in the beginning, then the question may arise

19 whether you should make use of any excerpts at all. But short of that, I

20 don't think you should embark on trying to explain to us what happened in

21 the beginning of the -- if we can perceive that by reading the transcript

22 itself.

23 MR. NICHOLLS: I understand, Your Honour. I apologise. I might

24 not have had the order completely clear, as I should have. We can proceed

25 just with using the transcript, and I would then now pass out to you if I

Page 13841

1 can portions of the transcript I'm going to go over with Mr. Graham. It

2 can also be viewed on e-court, but these hard copies may be easier to

3 begin with.

4 JUDGE AGIUS: All right. Okay. I hope it has been understood

5 that the idea is very limited use of the tape. It applies to you, it

6 applies also to the Defence to an extent and then obviously, if questions

7 are asked which highlight certain discrepancies that can be clarified by

8 use of the tape or excerpts thereof, we will discuss that but not for the

9 time being.

10 MR. NICHOLLS: Well, if I can now just then pass out to you these

11 excerpts from the transcript of -- which are from both the 2002 February

12 and March interview.

13 JUDGE AGIUS: Go ahead Mr. Nicholls, please. First of all, can I

14 ask you how long you think your examination-in-chief will last?

15 MR. NICHOLLS: I think less than an hour. I just --

16 JUDGE AGIUS: Go ahead. I'm asking you because in the information

17 that we got from the registrar, it's 15 hours. And I was wondering

18 whether there was a mistake there.

19 MR. NICHOLLS: I think that's when we were all going to --

20 JUDGE AGIUS: Not from the registrar. It's from our staff, sorry.

21 MR. NICHOLLS: That's when we were all going to listen to the tape

22 for several days.

23 JUDGE AGIUS: I thought so. I just wanted to make sure.

24 MR. NICHOLLS: And maybe if we can just have these pages up on

25 e-court as well, it might be good. This is 2852, I believe, starting with

Page 13842

1 page 1.

2 Q. Now, first of all, Mr. Graham, just to be clear, while you were

3 here over the weekend, you reviewed this -- the transcript of your

4 interviews with Mr. Borovcanin; is that right?

5 A. Yes, I did.

6 Q. Okay. Do you recognise the document you have right before you now

7 from the 20th of February 2002?

8 A. Yes, I do.

9 Q. Okay. And what I want you to do first, if you can, is just read

10 through the first three pages, up to line -- just the first three pages,

11 and tell me if, to the best of your recollection, and the best of your

12 memory, this is an accurate transcript of what took place at the beginning

13 of the interview?

14 A. Do you want me to read it out loud?

15 Q. No. Just to yourself. Could I just say one thing to

16 Your Honours?


18 MR. NICHOLLS: You will notice on page 2, at line 13, against you

19 is underlined and then we have NTTLJB. That signifies that on listening

20 to the audio, that part of the English was not translated to

21 Mr. Borovcanin. So he would have heard that in English but not in his

22 language.

23 JUDGE AGIUS: Okay. Thank you for pointing that out,

24 Mr. Nicholls. Could I ask when that was established?

25 MR. NICHOLLS: That was established at about 10.30 p.m. last night

Page 13843

1 by my friends who e-mailed me and advised me, and I had the transcript

2 corrected. And I won't speak for my friends, but I believe we've both

3 looked at this transcript quite a bit and agree that it's as accurate as

4 it can be and it's at present.

5 JUDGE AGIUS: The interview was conducted in which language?

6 MR. NICHOLLS: In English, Your Honour, with an interpreter who

7 was interpreting the questions asked in English into the Serbian.

8 JUDGE AGIUS: Exactly. I would imagine so but just for the

9 record.


11 JUDGE AGIUS: And it was -- there was simultaneous translation

12 there and then?

13 MR. NICHOLLS: Yes, Your Honour.

14 JUDGE AGIUS: And how have you been able to establish, for

15 example, that on the same page, "u redu" was not translated into English

16 and the words "against you" in English were not translated into Serb or

17 Croat?

18 MR. NICHOLLS: By listening, by having people who speak both

19 languages listen carefully to the tape recordings, to the audio recordings

20 and our friends have pointed out errors, and we ourselves have reviewed

21 the tape and tried to catch as many mistakes and all the mistakes that we

22 can.


24 MR. NICHOLLS: I'm not trying to do what Mr. Meek would call go

25 through the back door but if were you to hear the first ten minutes, it

Page 13844

1 gives you a very good idea of just how this interview went.

2 JUDGE AGIUS: We wouldn't be able to establish that these two

3 words were not translated into Serb or Croat.

4 MR. NICHOLLS: No, Your Honours.

5 JUDGE AGIUS: So what's the point? Let's go ahead.


7 Q. Have you reviewed those first three pages, Mr. Graham?

8 A. Yes, I have.

9 Q. And the best you remember, does this accurately reflect your

10 advising Mr. Borovcanin of his rights?

11 A. Yes, it does.

12 Q. Now, while you were advising Mr. Borovcanin of these rights, if

13 you remember, were you reading from something or going off your memory of

14 what Rule 42 requires or a mixture? Can you explain how you provided

15 these rights to Mr. Borovcanin?

16 A. I had an aide-memoire, a piece of paper on the desk next to me.

17 Some of it I was reading verbatim, other parts I was using as a reminder

18 to make sure that I covered all the issues.

19 Q. Did Mr. Borovcanin comment on the summons in any way?

20 A. Yes, he pointed out to me that he'd read it, and his forename was

21 wrong on the summons.

22 Q. Were you aware or did he tell you what his profession, what his

23 job was, at the time of the interview?

24 A. As I recall he told me he was a Professor at the police academy.

25 Q. Now, just describe as best you can, you remember what -- what the

Page 13845

1 atmosphere was during while were you beginning this interview and reading

2 Mr. Borovcanin his rights, and what his demeanour was? I know you can't

3 say what he was thinking or feeling, but how did the whole beginning of

4 the interview seem to you?

5 A. It started the way most interviews started, formally. But

6 everybody in the room became more relaxed as time went on, and we settled

7 into the environment.

8 Q. Now, I'd like you to look at page 2, line 8, where it states that

9 the question you asked was or what you told Mr. Borovcanin was, "Now,

10 based on the information that the Tribunal has, the Prosecutor believes

11 that you may be a suspect who is responsible for committing acts which may

12 be chargeable under the Tribunal statute."

13 Can you tell us if you remember, if you can explain, why you used

14 the phrase "you may be a suspect"? How you came about that description?

15 A. That is a verbatim quote from the aide-memoire that I had been

16 given when I returned to the Tribunal.

17 Q. And then was that something standard you used in suspect

18 interviews or was this any different in this interview?

19 A. No. That is something standard that I used in very many

20 interviews.

21 Q. During this interview, at any time -- let me ask it this way: Was

22 this the only time that you advised Mr. Borovcanin of his rights?

23 A. No. I believe I advised him of his rights a number of times

24 during the interview.

25 Q. And when did you, best as you remember, when did you do that or

Page 13846

1 how did you decide when you would again advise him of his rights?

2 A. If there was a break of more than a couple of minutes; for

3 example, if I were just turning a tape over, I would not look to readvise

4 of rights. But if we have a coffee break or if we broke for lunch, my

5 protocol was to remind the person who was being interviewed of their

6 rights.

7 JUDGE AGIUS: Can we have a reference to such like portions from

8 the transcript?

9 MR. NICHOLLS: Yes, Your Honour.

10 JUDGE AGIUS: For ease of reference later on.


12 JUDGE AGIUS: And in that case, whether you have also, if the

13 language used, terminology used, is identical and anything you do say will

14 be recorded and could be used in evidence against you in a later Tribunal

15 proceedings, including trial, whether in these later instances, the words

16 against you, if used, were translated into Serbo-Croat, please?

17 MR. NICHOLLS: Yes, Your Honour. They are not all in the excerpt

18 I passed out, but what I propose to do is briefly go through the different

19 times during the interview.

20 JUDGE AGIUS: I don't want to interrupt you, but I think this --

21 these could become relevant.

22 MR. NICHOLLS: That's where I was going, Your Honour.

23 JUDGE AGIUS: Go ahead.

24 MR. NICHOLLS: If we could go to page 23, please of the same, that

25 is not in your packet, I'll have to do this in e-court.

Page 13847

1 MR. MEEK: Your Honour, I again, after talking to my learned

2 colleagues, I believe that these 16 pages that were hand -- given us in

3 hard copy are what had been scanned in e-court. I just want to know

4 has -- have these interviews been scanned into e-court and released in

5 their entirety?

6 MR. NICHOLLS: Yes. That's the answer.

7 MR. MEEK: Well, Your Honour, I object. We had a conversation

8 this morning, not only with Mr. Nicholls, with Mr. McCloskey, that because

9 this is a two-step process, and you may very well decide that if it's

10 admissible at all, it's only admissible against the person being

11 interviewed, Mr. Borovcanin, and that you may very well delete or redact

12 other names.

13 And now apparently the Prosecution has gone ahead and put into

14 e-court the entire transcripts without any redactions before you've ever

15 made a ruling, and I object to it. I don't think it's proper, and they

16 agreed that they were not going to do that.

17 JUDGE AGIUS: Yes, Mr. Nicholls? Do you wish to comment?

18 MR. NICHOLLS: Yeah. Frankly I don't understand the objection at

19 all. Your Honours ruling again was that we can make use of these

20 transcripts during this hearing. That's when I asked -- Mr. McCloskey

21 would like to address you as well.

22 JUDGE AGIUS: Yes, Mr. McCloskey, let's finish the Prosecution and

23 then you give --

24 [Trial Chamber confers]

25 MR. NICHOLLS: My understanding was that I was not going to put

Page 13848

1 these documents into e-court and distribute them until they were going to

2 be used. Now, I've decided now to go through the different areas of the

3 transcript, I'm going to limit it to where the portions relevant to this

4 hearing, which are primarily where Mr. Borovcanin is advised of his

5 rights. And that's the pages which I will call up on e-court. And I

6 don't see anything wrong with that.

7 The other option is I can pass out whole hard copies to everybody,

8 but that's not -- e-court is so that we avoid that. And I honestly don't

9 understand where Mr. Meek is coming from with this because he did ask

10 earlier that we not put everything out, and we agreed to that until we

11 knew we were going to use them; and we are going to use them now for the

12 limited basis of this hearing.

13 JUDGE AGIUS: Exactly. I think this is a useless discussion, a

14 futile discussion, Mr. Meek, because we have already decided that, without

15 prejudice to the issue of redactions to be dealt with in due course, for

16 the purpose of this stage, namely the debate evidence and debate on

17 admissibility, both the tape and the transcript will be marked for

18 identification. So how do you expect them to be marked for identification

19 and not be in e-court?

20 MR. MEEK: Well, Your Honours, with all due respect, all due

21 respect, I thought the ruling was that the use of the transcripts would be

22 for the limited purpose of whether or not this statement is admissible.

23 Now, there are portions of it, there are 16 pages here, that may

24 go to that issue. And now he's going to put in 300 pages which goes far

25 beyond, far beyond, the issues in this hearing.

Page 13849

1 JUDGE AGIUS: I think you have missed the whole -- so I'm not

2 using -- I'm not trying to use language which is in any way offensive, but

3 what I mean to tell you is that there is -- obviously we are not on the

4 same wave length on this because our position was as follows: Possible

5 redactions insofar as they may become necessary, within the ambit of the

6 decision that we will later need to take in relation to the admissibility

7 is one thing. All rights are reserved and continue to be reserved for

8 that purpose. But in the meantime, both the tapes and the transcripts, we

9 decided to mark for identification because it makes no sense not having

10 them introduced in the system and marked for identification if we need to

11 proceed with a serious examination-in-chief and cross-examination of this

12 witness in relation to the admissibility aspect.

13 Now, which parts of the tape, transcripts you make use of is

14 your own business. I can assure you that we are not going to spend our

15 time reading through what is or may not be necessary to read if that is

16 your concern. But the matter of redactions or possible redactions is none

17 of our concern for the time being. It will become important or may become

18 important later on depending on what decision we will come to but, which

19 of course we don't know for the time being, but that's it.

20 MR. MEEK: Thank you, Mr. President. And frankly I feel like

21 Alice in Wonderland, I've fallen down the rabbit hole again. What you're

22 say is that the Prosecution can use what they want to use or what they

23 feel is necessary for this hearing. So frankly, if they say we think the

24 whole 15 hours is necessary, then I guess they get to play the whole 15

25 hours of tapes.

Page 13850

1 JUDGE AGIUS: Again we are not on the same wave length.

2 MR. MEEK: Apparently not.

3 JUDGE AGIUS: I think you will know quite well that we are not.

4 Okay. We'll have a break now. Maybe you can thrash this out with the

5 Prosecution. 25 minutes break and then I'm very confident that we'll

6 finish with your testimony by the end of tomorrow --

7 THE WITNESS: Thank you.

8 JUDGE AGIUS: -- Mr. Graham. We'll do our utmost. Thank you.

9 --- Recess taken at 4.19 p.m.

10 --- On resuming at 4.50 p.m.

11 JUDGE AGIUS: Yes, Mr. Nicholls. The understanding is that you

12 will proceed.

13 MR. NICHOLLS: Thank you.

14 JUDGE AGIUS: Thank you.


16 Q. Before we go to the next time you advised Mr. Borovcanin of his

17 rights, let me go back for a minute to the beginning of the interview. We

18 don't need to bring them up again, but this is referenced on pages 2 and 3

19 of the transcript?

20 JUDGE AGIUS: One moment, sorry to interrupt you but I don't know

21 whether we'll finish today or tomorrow, but one thing I certainly don't

22 want to forget is to publicly announce that we are scheduled to resume our

23 sittings after the recess on the 20th of August, that's a Monday. (redacted)

24 (redacted)

25 (redacted)

Page 13851

1 (redacted), and we were

2 scheduled to sit in the morning, they were scheduled to sit in the

3 afternoon, and they have asked us to consider not sitting on that day so

4 that they can have the entire day for this witness.

5 We have acceded to that. The quid pro quo, however, is that on

6 the 22nd, that's Wednesday, instead of having only the morning sitting, as

7 scheduled, we will have a whole day; in other words what we will miss on

8 Monday we will make good for on Wednesday. So I'm announcing that so that

9 you will know that we will not be starting on the 20th as scheduled, but

10 be prepared for a long day on the 22nd, or a longer day on the 22nd.

11 Yes, sorry to have interrupted you like this, but I know that I

12 would have probably forgot it.

13 [Trial Chamber confers]

14 JUDGE AGIUS: Since my attention is being drawn since we don't

15 know whether that person is a protected witness or not, we will redact

16 from the transcript any reference to who he is, in other words, his

17 position, all right? Thank you. Let's proceed and again my apologies for

18 the interruption, Mr. Nicholls.

19 MR. NICHOLLS: Thank you, Your Honour. Thank you.

20 Q. I'm sorry, could we go back to page -- well, we don't need to go

21 back. Let me just ask you this, Witness: Drawing your attention now to

22 the beginning of the interview at 9.02 a.m. on the 20th, you told us and

23 we can see in the transcript, that Mr. Borovcanin's attorney was not with

24 him, and you stated as it says in the transcript, "Mr. Borovcanin said

25 that his attorney would be joining them, joining you, later in the day."

Page 13852

1 Can you just tell us briefly, and it's in the transcript but, what

2 did you and Mr. McCloskey say to Mr. Borovcanin about the fact that he

3 didn't have a lawyer with him at that point; although, he was willing to

4 continue the interview. Just tell us about that discussion about his

5 options for having his lawyer come or stopping the interview?

6 A. To the best of my knowledge, Mr. Borovcanin had pointed that out

7 to me before we went into interview and said he wanted to continue. I was

8 mindful of that fact, and I wanted to make sure that it was on the

9 record. So I made a point of stressing the fact that we didn't need to

10 start without the lawyer present, and we could stop at any stage if

11 Mr. Borovcanin wanted to.

12 Q. And did Mr. McCloskey also talk about Mr. Borovcanin's right to

13 stop the interview or suspend the interview?

14 A. Yes, he did. He reiterated the point.

15 Q. Thank you. And Mr. Borovcanin agreed to continue without his

16 attorney at that point; is that right?

17 A. He did.

18 Q. Now, we've got page 23 of the transcript, that is page 21 in the

19 B/C/S if it's needed. Just refresh your memory by looking at that page.

20 That is on the screen in front of you. It would not be with you in hard

21 copy for the moment. Have you read that to yourself?

22 A. Yes, I have.

23 Q. Just very briefly, is that accurate from your memory that after

24 the first break, at 10.42, when you continued, you again advised

25 Mr. Borovcanin that he had the right not say anything, to remain silent,

Page 13853

1 that anything he said would be recorded and used in evidence, and that he

2 had of course the right to stop and wait for his lawyer to arrive and then

3 to decide what to do next?

4 A. Yes, it is. I was reminding him.

5 Q. And we can see at line 19, you asked him can I confirm that you're

6 still happy to continue without legal presentation at this time, and his

7 answer was yes?

8 A. Without legal representation, yes.

9 Q. All right. I'd like to now go to page 43 of this document.

10 That's page 40, I believe, in the B/C/S. And can you just read page 43 to

11 yourself, and then I'll ask for you to read page 44 to yourself. Tell me

12 when you've read 43 and we can go to 44.

13 A. I'm ready for 44.

14 Q. And could we have, I'm sorry, a little bit more of the English

15 version so that I can see the lines that are -- well, in any event, we are

16 now the time 1406 in the interview, and it's stated on the previous page,

17 this is after about a two hour lunch break and during that time,

18 Mr. Borovcanin had met with his lawyer; is that right? Is that conform to

19 your recollection?

20 A. Yes, it does.

21 Q. And am I correct that as soon as Mr. Borovcanin's lawyer arrived,

22 a break was taken of two hours?

23 A. I can't remember if we were taking the break, and the lawyer

24 turned up during the break or we broke -- I think a note was put under the

25 door, if I remember correctly, saying that Mr. Borovcanin's lawyer had

Page 13854

1 arrived and for that reason we stopped the tape immediately.

2 Q. Okay.

3 MR. NICHOLLS: And, Your Honours, for your reference that is on

4 page 42 that Mr. Graham is referring to.

5 Q. Now, again, you've read through this. At this stage, after

6 Mr. Borovcanin's counsel has arrived, we see here that you have again

7 advised him of his rights even though as -- now with his lawyer present;

8 is that correct?

9 A. That's correct, yes.

10 Q. And Your Honours I would just draw your attention again that the

11 interpreter made the same error on line 6 of page 44 and failed to

12 translate "against you" into Mr. Borovcanin's language. And I think we

13 can see here it's obvious Mr. Borovcanin again agreed to continue with the

14 interview. Is that right?

15 A. Sorry, yes.

16 JUDGE AGIUS: Mr. Nicholls I notice that this is the second time

17 that, as you put it, same mistake was made by the interpreter. Have you

18 tried to verify whether there was a reason for omitting the translation of

19 the words "against you" into B/C/S?

20 MR. NICHOLLS: I'm not sure I understand Your Honour completely.

21 I think it was just an error in the translation, and we'll see later on

22 she makes a reverse -- she makes a mistake sort of in the reverse, later

23 on, the question is "you may be a suspect" and she translates as "you are

24 a suspect," so I don't know the reason.

25 Later on in the interview, it is -- we'll get to it, it's

Page 13855

1 correctly translated, so I believe it's just a slip of the tongue. And

2 there were several errors which -- and we've caught as many as we can in

3 this transcript including those.

4 JUDGE AGIUS: All right. I asked you the question because in my

5 mind, I wanted to know whether it would perhaps be superfluous for someone

6 who is translating into B/C/S to specifically translate those words too.

7 The reason is in some jurisdictions, for example, giving the

8 caution you don't use the words "against you".

9 MR. NICHOLLS: That's right. And of course, under our rule they

10 are not required, they are not in our rule either, but I can't say I know

11 what the reason was that the interpreter missed those two words.

12 JUDGE AGIUS: Fair enough. I don't want to hear more. I think

13 that's enough.

14 MR. NICHOLLS: Thank you.

15 Q. Now, let me -- before we go on, and I'll look at another couple

16 pages, you talked about how the interview started. As the interview

17 continued can you just describe the atmosphere during the interview, and

18 the way people conducted themselves?

19 A. I have no recollection, but it certainly didn't stand out in my

20 mind that there was any problem or any tension.

21 Q. And was there any joking around by anybody present, any humour?

22 A. On several occasions, Mr. Borovcanin made a joke. I think he

23 asked at least one occasion if he could make a joke.

24 Q. Okay. I'd like to go to page 90 now of this interview, if we may,

25 and that's page 83 in the B/C/S. This is in the packet that I handed out,

Page 13856

1 Your Honours.

2 I just want to draw your attention, Mr. Graham, to lines 19 to 20.

3 A. Yes.

4 Q. Now, this is towards the end of the interview. I just want to

5 confirm that as per the rules you gave Mr. Borovcanin the chance to say

6 anything he wished to say at the end of the interview?

7 A. I did, yes.

8 Q. Okay. I'd like to look at page 91 now, which should be page 84 in

9 the B/C/S. I'd like you to read that whole page to yourself.

10 A. I've read it.

11 Q. All right. And again to confirm that matches your memory of your

12 questioning at the end of Mr. Borovcanin, that at line 2 you asked him if

13 he was happy that he'd asked the questions of his own free will, and he

14 stated that he had. At line 5 you asked him, "you've not been threatened

15 promised or induced to give any of the answers you've given today?" And

16 then he said, "Except for some threatening looks, there was nothing else.

17 I'm just joking." Do you remember that?

18 A. I remember the line, one or two of those lines in particular, but

19 this is the standard end that I would do on a tape-recorded interview.

20 Q. Okay. And again, he confirmed that in his words, when you asked

21 him if he had any complaints about the way he'd been treated before and

22 during the interview that everything was correct, and then he made another

23 little joke about drinking too much coffee, right?

24 A. That's right. It's the coffee line that I do remember.

25 Q. Okay. And just to be clear, that's the interview -- the end of

Page 13857

1 the first interview in February 2002?

2 A. Yes, it is.

3 Q. And just to be very clear, from the time that Mr. Borovcanin's

4 attorney appeared at 11.59 and there was a note slipped under the door

5 saying he was there, from the transcript we see that to the end of the

6 interview he was present. Was there any time he was not present during

7 the interview with Mr. Borovcanin after he'd arrived?

8 A. Not while the interview was being undertaken, no.

9 Q. Thank you. I'd like to now move on quickly to the second

10 interview you did with Mr. Borovcanin which began on the 20th of February

11 2002. Sorry, the 11th of March, 2002. I don't want to take the time to

12 go through the same chain of documents, but can you confirm to us that

13 similarly he was issued with a summons through the RS authorities. He was

14 given a Prosecutor's undertaking not to arrest him and that he signed a

15 receipt for that summons and appeared for the interview?

16 A. That is my understanding, yes.

17 Q. And again, that was a summons to appear as a suspect for an

18 interview?

19 A. I believe so, yes.

20 Q. This should now be -- if we could have 2853 in e-court, please,

21 page 1? Sorry, just before we get to that, do you remember if you gave

22 Mr. Borovcanin a copy of the audiotapes of the first interview, and if you

23 did, when you did that, approximately?

24 A. I don't believe I gave him a copy of the interview when it first

25 finished because it was a single tape recording machine. I came back to

Page 13858

1 The Hague, and I believe it was on this next visit that I provided the

2 tapes.

3 Q. Okay.

4 A. I may be mistaken on that. It may have gone through on an

5 actual-- through Mr. Jovicic, but I can't remember. But I definitely did

6 not provide them at the end of the first is interview.

7 Q. I'll try to do this quite quickly, but if you could -- you've got

8 them in front of you, if you could please read pages 1 to 3 of the 11

9 March interview. All right. And you can stop at line 6 on page 3 because

10 that's the only part we are interested in is up to there.

11 A. I've read up to that point.

12 Q. Thank you. Now if you can just confirm as far as you remember

13 this is an accurate transcript of the interview?

14 A. Yes, it is.

15 Q. And now, at this second interview, Mr. Borovcanin's counsel was

16 there from the very beginning?

17 A. Yes.

18 Q. And again, you have gone through the rights to be given to a

19 suspect?

20 A. Yes, I'll have been using the same aide-memoire.

21 MR. NICHOLLS: Now, Your Honours on page 2 if we can have at line

22 17, here, Mr. Graham, as he has before, says, "Anything that you do say

23 will be recorded and could be used in evidence against you in a later

24 Tribunal proceeding." And I had a B/C/S speaker just before court today

25 check and that was correctly translated on this occasion. Nobody made a

Page 13859

1 mistake.

2 Q. The same questions really: Can you describe Mr. Borovcanin's

3 demeanour during this second interview, and the general feeling from your

4 perspective in the room during the interview; how it was conducted and how

5 people felt?

6 A. I can't fully recollect how it was in the room, but there is --

7 nothing comes back that there was any tension or any problems. It was a

8 typical interview.

9 Q. Okay. And I'm sorry I should have said this at the beginning,

10 just to be clear on who was present at this interview, it's all the same

11 people except that Mr. Borovcanin's attorney is there the entire time, and

12 the interpreter is a different person, we can see on page 1 at line 11; is

13 that right?

14 A. That is correct, yes.

15 Q. Now, again, do you recall whether you advised Mr. -- whether you

16 followed that practice and advised Mr. Borovcanin of his rights after

17 breaks had taken place during the interview? Did you do that again in

18 this interview as well?

19 A. To the best of my recollection I did after every substantial

20 break.

21 Q. I'd like to look at pages 49 to 50 of this interview, the second

22 interview. Page 49 is page 46 in the B/C/S. And that should come up on

23 the screen for you. And on page 50, I'm only interested up to line 10,

24 the end of line 10. And we can go to page 50 now, please. And I'll give

25 you a chance to read down to line 10 on the English, if we can scroll that

Page 13860

1 over a bit.

2 You can't see the lines but line 10 is where Mr. Borovcanin says,

3 "yes," and then it goes to a large long question by you.

4 A. Yes, I've read that.

5 Q. Okay. Again, does this conform to your advising Mr. Borovcanin of

6 his rights after the lunch break?

7 A. Yes, it's what I will have said.

8 Q. And we can see here that you've at lines 5 and 6 you've slightly

9 changed the phrases you use and say, "And the other thing that I need to

10 remind you is that because you're being interviewed as a suspect, you do

11 not have to say anything or answer any of our questions unless you wish to

12 do so." And then you go on. Is that right?

13 A. I believe it will be. It -- there was no reason for not saying

14 exactly the same words as last time. I was using the same aide-memoire.

15 Q. But my point is here is here we have you will be interviewed as a

16 as a suspect not may be a suspect?

17 A. Yes, that's what I said.

18 Q. Okay.

19 JUDGE AGIUS: Mr. Nicholls, I notice that once more, the words

20 "against you" supposedly were not translated into Serbo-Croat. Do I take

21 it that now it's a different interpreter still? Or have we reverted to

22 the first interpreter, the one that was present during the first

23 interview?

24 MR. NICHOLLS: No. We're --

25 JUDGE AGIUS: I'm asking the question because I wish to establish

Page 13861

1 that both, whether both interpreters actually made the same mistake, as

2 you put it.

3 MR. NICHOLLS: Yes, you're correct, Your Honour, you're correct,

4 Your Honour, sorry.

5 JUDGE AGIUS: All right. Go ahead.


7 Q. And I won't go through it, but again at pages 73 and at pages 91

8 you just briefly remind Mr. Borovcanin of his rights.

9 MR. NICHOLLS: For Your Honours, we don't need to go through that

10 in detail. I'd like to go to page 111 of this interview now, please.

11 That's page 101 of the B/C/S, I believe. Wait a second. I might have the

12 wrong page. Sorry, you can take that off. I'm sorry, it is page 111.

13 Q. I'm only concerned with the very last line, page 25. We are now

14 getting towards the end of the interview. The part I'm interested in is

15 Peter McCloskey says, "We will be finished. Do you have any questions,

16 any concerns, right now?" And Mr. Borovcanin on the next page makes a

17 joke. And if we could go to page 113 now, which is 102 in the B/C/S, and

18 I'm interested in lines 22 to 26. So can you just tell me when you've

19 read the bottom section of that?

20 A. I have read it.

21 Q. Okay. And again there, can we look at page 114 now? Next page.

22 And then just very briefly there, again, as we've seen before you've

23 confirmed with Mr. Borovcanin that he's happy with the way the interview

24 has been conducted, and he states that the answers have been given of his

25 own free will and without inducements, threats, or promises; is that

Page 13862

1 right?

2 A. That is right.

3 Q. Can we go now to the bottom of page 114, if we could scroll down,

4 we see there that's correct, that the interview continued the next day at

5 9.16 on the 12th of March?

6 A. Yes, it did.

7 Q. And if we go to 115 now, please, which is 104 in the B/C/S? We

8 can see there at the top of the page that the same people are present at

9 the interview including Mr. Borovcanin's attorney; is that right?

10 A. Yes, it is.

11 Q. And again we don't need to go through it, if you could just read

12 this page to yourself. And then can you just confirm that again during

13 the continuation of this same interview on the next day, at the beginning

14 of the day, you advised Mr. Borovcanin of his rights as we see here on the

15 paper?

16 A. Yes.

17 Q. And, Your Honours, if I could just again draw your attention to

18 the fact that in line 20, "Against you" was not translated into

19 Mr. Borovcanin's language. However, another mistake at line 16, when

20 Mr. Graham told Mr. Borovcanin that, "the Tribunal believes you may be a

21 suspect," that was translated to him in his language as "you have the

22 status of a suspect."

23 And if we could go now just to the very end of this interview,

24 page 162, lines I'm interested in on page 162 are lines 3 to 6. Can you

25 just read those to yourself. And here you've again given at the end of

Page 13863

1 the interview Mr. Borovcanin the opportunity to clarify anything he thinks

2 there might be some confusion over. You say,"Now is the time to do that,

3 if there is anything he wants to add," correct?

4 A. I did, yes.

5 Q. And now if we can go to the next page, please, page 163 which is

6 also in the packet I've handed out, that's page 141 in the English, 141 in

7 the B/C/S, if you could just read that whole page to yourself? Have you

8 had a chance to read through that last page?

9 A. Yes, I've read it.

10 Q. And just to be clear, this is the end of your -- complete end of

11 your second interview with Mr. Borovcanin?

12 A. Yes, it is.

13 Q. And again, we don't need to go through it but at lines 13 through

14 17, on page 163, you again confirm that Mr. Borovcanin is happy with the

15 way the interview has been conducted, and he's given the answers of his

16 own free will. I won't read the whole thing. At line 15, Mr. Borovcanin

17 makes another joke, "I'm really happy I lost four kilos in two days." And

18 at line 17, after being asked if he has any complaints, he says, "No,

19 everything was okay." Is that --

20 A. From rereading the transcript, yes.

21 MR. NICHOLLS: All right. Could I have one moment, Your Honours?

22 I'm just about done. I just want to check something.

23 [Prosecution counsel confer]

24 MR. NICHOLLS: Thank you. I think at this time I have no further

25 questions.

Page 13864

1 JUDGE AGIUS: I thank you, Mr. Nicholls. Now, in our ruling we

2 also established that it will be the Borovcanin team who will go first.

3 So Mr. Lazarevic?

4 MR. LAZAREVIC: Thank you, Your Honours.

5 Cross-examination by Mr. Lazarevic:

6 Q. Good afternoon, Mr. Graham. My name is Aleksandar Lazarevic and

7 together with my colleagues in my team, I appear here for Mr.

8 Ljubomir Borovcanin before this Tribunal.

9 JUDGE AGIUS: Mr. Lazarevic, we will have a break at 6.20.

10 MR. LAZAREVIC: Okay. Thank you for this information.

11 JUDGE AGIUS: Yes, 6.20.

12 [Trial Chamber confers]

13 JUDGE AGIUS: There is a suggestion on our part so that we don't

14 possibly don't break your cross-examination, Mr. Lazarevic, but I need the

15 consensus of everyone, particularly the persons behind the glass screens,

16 if we could have a 15 minute break now and then when we resume, we

17 continue right up to 7.00?

18 MR. LAZAREVIC: Well, as for Mr. Borovcanin's Defence position, we

19 are fine with this.

20 JUDGE AGIUS: I think it will be helpful because you won't have to

21 interrupt your cross-examination, but I want to make sure that it is

22 acceptable to the rest of the staff.

23 THE INTERPRETER: It is for interpreters, Your Honour.

24 JUDGE AGIUS: It is for interpreters and for the technicians and

25 recorders? Okay. All right. So we'll have 15 minutes now. We will

Page 13865

1 resume at roughly quarter to 6.00 or thereabouts.

2 --- Recess taken at 5.33 p.m.

3 --- On resuming at 5.50 p.m.

4 JUDGE AGIUS: M. Lazarevic, s'il vous plait.

5 MR. LAZAREVIC: Thank you, Your Honour.

6 Q. [Interpretation] Mr. Graham, before the break, I just introduced

7 myself and the members of my team. I just want to make sure you

8 understand that I am the Defence counsel for Mr. Borovcanin.

9 I listened very carefully to my learned friend from the

10 Prosecution and before that I had occasion to review your career

11 background. There is just one detail that I would like to clarify. Do

12 you have a degree in law?

13 A. No, I do not.

14 Q. Thank you very much. When you began to work for the Office of the

15 Prosecutor at the ICTY here in The Hague, did you complete a specialised

16 training course for the job that you were to perform in the OTP?

17 A. No, I did not.

18 Q. Did you have occasion to speak to your colleagues who were working

19 on similar jobs? Did they maybe instruct you as to whether your job was

20 perhaps different to the one you had in Lancashire?

21 A. I did a lot of background, and I spoke to people that were working

22 at the Tribunal when I made an application. So I knew exactly what I was

23 applying for and what my role would be, but I was an experienced detective

24 officer back in Lancashire at that time.

25 Q. Of course, I'm not questioning your experience at all. I just

Page 13866

1 wanted to establish whether you were given some special instructions from

2 your colleagues here regarding procedural differences between that job and

3 the one you had before.

4 A. There was an induction course that gave an outline, but when I

5 joined, my initial role was involved in attending exhumation sites.

6 Q. Very well. I have just one more question on this subject, and

7 then I will move on to more specific ones regarding the interview with

8 Mr. Borovcanin. During the time you worked for the Office of the

9 Prosecutor at the ICTY, did you have occasion to familiarise yourself with

10 the legislation of the countries that came into being after the break-up

11 of the former Yugoslavia; namely, the legislation governing pre-criminal

12 and criminal proceedings?

13 A. Not to my recollection, no.

14 Q. Thank you. Let me now move on to the interviews with

15 Mr. Borovcanin. I suppose before you came to testify, and this seems to

16 be confirmed by the chief examination by my colleague, Mr. Nicholls, you

17 had occasion to review these interviews in detail?

18 A. The first opportunity I had to actually read a version of the

19 transcript was on my flight over. I was actually attending a training

20 course up until Friday, and I flew on the Saturday so that was the first

21 opportunity I had was to read it.

22 Q. Did you perhaps also listen to the audio tapes, or did you just

23 look at the transcript?

24 A. Just the transcript. I've heard segments of the audiotape over

25 the last two days, but I've certainly not heard them right the way

Page 13867

1 through.

2 Q. Did that help you remember any details of those interviews with

3 Mr. Borovcanin?

4 A. Both by reading and listening to the segments I did, yes, it did

5 jog my memory on certain things.

6 Q. But apart from that, you did not have any independent recollection

7 of that interview?

8 A. I'm not sure I understand the question, Your Honour.

9 JUDGE AGIUS: Same here. Maybe you can rephrase it. Thank you.

10 MR. LAZAREVIC: I will rephrase it, then, Your Honour.

11 Q. [Interpretation] Before reading the transcripts and listening to

12 segments of the audiotapes, how would you qualify your recollection of

13 your interviews with Mr. Borovcanin? What kind of memory of them did you

14 have?

15 A. I believe I had a good memory. It was a significant interview. I

16 didn't do a huge number of interviews while I was in the Tribunal. Being

17 a team leader, it was a selected number, but I certainly remembered that

18 one.

19 Q. Thank you. You have answered my question.

20 Before these interviews with Mr. Borovcanin were scheduled and

21 before they took place, did you undertake any special preparations for

22 them within the Office of the Prosecutor?

23 A. Not beyond background reading and preparations, so I knew what

24 matters would be discussed.

25 Q. Thank you. We have already had an opportunity during the

Page 13868

1 cross-examination by Mr. Nicholls to see the summons addressed to

2 Mr. Borovcanin. They contain a notification to the effect that

3 Mr. Borovcanin, in the capacity of a suspect, is to show up at a certain

4 place and time regarding an interview. Is that what we could say about

5 these summons?

6 A. Well, is it a summons asking him to attend, yes.

7 Q. And as we had occasion to see, the summons is addressed through

8 the liaison officer to the Ministry of Justice of the country whose

9 national the interviewee is, but ultimately the summons is delivered to

10 the person concerned by the Ministry of the Interior; that is the police.

11 Did I describe the procedure correctly?

12 A. I wouldn't -- don't think I'm in a position to state how it was

13 actually delivered, but the intention was that it would be delivered to

14 the person named on it.

15 Q. Of course, I can't insist if you are not very familiar with that

16 procedure, but my question was who was actually responsible for handing

17 the summons to the person. But if you can't assist me with that, I'll

18 move on.

19 We have just seen the summons. Would you agree with me that the

20 summons addressed to the person does not contain the qualification or the

21 name or the act that the person is suspected of having committed, nor the

22 relevant article in the statute, nor any mention of the rights the person

23 has?

24 A. Can I see a copy to refresh my memory?

25 JUDGE AGIUS: Yes. I think we need to see the English version

Page 13869

1 would be the one. That's ERN number 06106273. And then 6274 I don't

2 think is relevant for this issue.

3 MR. NICHOLLS: And can I just say for the record that's 02864 is

4 our number.

5 MR. LAZAREVIC: Page 5, I think.

6 JUDGE AGIUS: And then perhaps also relevant for your question is

7 the letter written by Trifun Jovicic to the Ministry of Republika Srpska

8 personally to Biljana Maric, minister, and that would be 2865. Yes, 2865.

9 I think those are the two that you need to see for the time being.

10 MR. NICHOLLS: Just that I think my friend was asking for the

11 summons, not the undertaking, and that's not what we have on the screen.

12 JUDGE AGIUS: All right. The summons is -- no, no. What you need

13 to see on the screen for the time being is the one, the document signed by

14 Graham Blewitt dated 11 February 2002, which is P02864. What we have

15 there is the other one, 2865.

16 MR. LAZAREVIC: I believe it should be page 5, if I was following

17 properly what -- the document is P02864, page 5. This is the summons.

18 JUDGE AGIUS: What you see on the screen is the right document,

19 isn't it? Is that correct, Mr. Lazarevic?

20 MR. LAZAREVIC: That's correct, Your Honour.

21 JUDGE AGIUS: Okay. So that's -- do you have it in front of you,

22 Mr. Graham.

23 THE WITNESS: Yes, I do, Your Honour.

24 JUDGE AGIUS: Thank you. So your question again, please,

25 Mr. Lazarevic?

Page 13870

1 MR. LAZAREVIC: By all means, Your Honour.

2 JUDGE AGIUS: And the question basically is whether there is any

3 reference to the --

4 MR. LAZAREVIC: I apologise.

5 JUDGE AGIUS: Go ahead.

6 MR. LAZAREVIC: [Interpretation]

7 Q. It's been a while before we were able to get the document on the

8 screen, so it's perhaps a good idea to repeat the question. From the

9 summons you see before you, would you agree with me that it is not

10 emphasised in the summons which acts the person is charged with, the

11 article of the Statute referring to that act is not quoted, and the rights

12 enjoyed by that person in keeping with the rules are not mentioned either?

13 A. Obviously I've not worked with these rules since I left the

14 Tribunal in 2004 but the question stated the acts the person is charged

15 with, the person isn't charged with acts prior to going for the interview.

16 I don't have the definition of suspect, but I think it's may be

17 charged or may be chargeable under the Tribunal statute. But with

18 relation to this document, it was a standard OTP document.

19 JUDGE AGIUS: Just to clear this up, according to our rules,

20 Rule 2, which deals with definitions, "suspect" is "a person concerning

21 whom the Prosecution, Prosecutor, possesses reliable information which

22 tends to show that the person may have committed a crime over which the

23 Tribunal has jurisdiction." But I don't know whether it's a question of

24 interpretation or not, but your question was translated into English as if

25 to mean, emphasising which acts the person is charged with. There is no

Page 13871

1 charge at the time. If he is a suspect he's only a suspect. But I don't

2 know whether it's important or not for the purpose of your question.

3 MR. LAZAREVIC: [Interpretation] Well, Your Honour -- [In English]

4 It's not relevant, but let's be precise about this. I was just trying to

5 establish what is the content of the summons itself, that three of these,

6 well, warnings and statutes -- and situation with the statutes and of

7 course that the suspect person does not understand from the summons itself

8 what is the name of the -- well, maybe I should not give evidence. I

9 apologise.

10 JUDGE AGIUS: I think so, yes. I think so. Yes, go ahead with

11 your next question, I mean.

12 MR. LAZAREVIC: [Interpretation]

13 Q. Mr. Graham, would you agree with me if I said that the person who

14 has the status of suspect has the right not to talk to you at all and to

15 refuse talking to the Office of the Prosecutor?

16 A. Yes, they have.

17 Q. Do you agree that this right that you agree the suspect had is not

18 clearly stated in the summons?

19 A. We are getting into a legal argument which I believe is outside my

20 remit as to the summons for attending and actually talking or not

21 answering questions when you actually answer to the summons, but I'm not a

22 lawyer.

23 Q. I quite accept that we should not be discussing the legal aspect

24 of this, but do you see any mention of anything like that in this summons,

25 something to the effect of, "You have the right of not responding to this

Page 13872

1 invitation from the Office of the Prosecutor"?

2 MR. NICHOLLS: Well, those are, excuse me, Your Honours, those are

3 different questions and it's sort of apples and oranges. There is a

4 question about the right to respond to the summons and to appear for the

5 interview and that's a different question from whether you need to speak

6 or answer questions. So I think maybe he needs to break that down a bit.

7 JUDGE AGIUS: Definitely. Mr. Lazarevic, please don't mix the two

8 together as if they were the same thing.

9 MR. LAZAREVIC: Well, I believe that it was the issue of

10 interpretation but --

11 JUDGE AGIUS: I accept that without reservation, but what you are

12 obviously referring to is you're just asking the witness to confirm that

13 in the summons itself there is no indication as to the suspect's rights

14 regarding the interview. That's what you meant, isn't it?

15 MR. LAZAREVIC: Precisely so, what this witness can see on the

16 screen, just --

17 JUDGE AGIUS: And what he can see is what we can see. So I would

18 suggest that you proceed with your next question. There isn't anything

19 such as suspect's rights.

20 MR. LAZAREVIC: Thank you, Your Honour.

21 Q. The first interview between the OTP and Mr. Borovcanin took place

22 on the 20th of February 2002, and according to my information and the

23 transcript, it began at 9.02 a.m., didn't it?

24 A. I don't have the transcript in front of me, but I think that's the

25 start time that's on it, yes.

Page 13873

1 Q. [In English] Well, I can assure you that my colleagues from the

2 Prosecution can follow this, and if they have any objection they will

3 react promptly.

4 [Interpretation] In the course of the cross-examination --

5 examination-in-chief led by Mr. Nicholls, you had occasion to see the

6 relevant portions of the transcript regarding cautions given to

7 Mr. Borovcanin regarding his status. Do you remember that, it was perhaps

8 40 minutes ago?

9 A. Yes, I remember that.

10 Q. And if you remember that portion of the transcript, when you gave

11 that first caution to Mr. Borovcanin, you did not tell him that he does

12 not have to talk to you at all, that he is free to leave the room; is that

13 correct?

14 A. To answer questions that --

15 MR. NICHOLLS: Again I think for that type of question, it's fair

16 to let the witness have a copy of the transcript in front of him.

17 JUDGE AGIUS: Yes. Could the witness see page 2 of the first

18 transcript, please, that I'm referring to page 2 in the English version.

19 MR. LAZAREVIC: It's page 2.

20 JUDGE AGIUS: Yes. Page 2 of the English version, but I can't

21 tell you which page is the B/C/S corresponding page.

22 MR. LAZAREVIC: I believe it's also page 2 on B/C/S, but could be

23 page 3, but I will just make sure when we see it.

24 JUDGE AGIUS: Yes, Mr. Nicholls?

25 MR. NICHOLLS: If my friend thinks it will help, I've got a hard

Page 13874

1 copy in English.

2 JUDGE AGIUS: By all means, if there is no objection we can

3 proceed that way; although, I can see it on the screen now.

4 MR. NICHOLLS: I just thought it might speed things up. He can

5 start reading before waiting for the screen but it doesn't...

6 JUDGE AGIUS: Yes, Mr. Lazarevic. I think we can proceed with

7 what we have there. It's sufficient.

8 [Trial Chamber confers]

9 JUDGE AGIUS: Then hand the hard copies to Mr. Graham, just make

10 sure that the Defence are shown what he's being handed for formalities'

11 sake.

12 THE WITNESS: Could you just repeat your question, please,

13 Your Honour?

14 JUDGE AGIUS: It wasn't my question, it was Mr. Lazarevic's

15 question, but -- yes, and if you remember that portion of the transcript,

16 when you gave that first caution to Mr. Borovcanin, you did not tell him

17 that he does not have to talk to you at all, that he's free to leave the

18 room; is that correct? That was Mr. Lazarevic's question.

19 THE WITNESS: I told him you didn't have to say or answer or say

20 anything or answer our questions unless you want to do so. I did not tell

21 him that he was free to leave the room. That as a given.

22 MR. LAZAREVIC: [Interpretation]

23 Q. Thank you. Thank you very much, because that is in fact the gist

24 I wanted to hear from you in response.

25 One brief question: Do you speak the Bosnian Croat Serbian

Page 13875

1 language as it is referred to here in the Tribunal?

2 A. No, I do not.

3 Q. Do you understand that language although you cannot speak it?

4 A. No more than two or three words.

5 Q. Very well. Thank you.

6 JUDGE AGIUS: Yes, Mr. Nicholls?

7 MR. NICHOLLS: I'm sorry, I apologise for objecting. It's just my

8 friend just said "u redu" very well which reminded me -- sorry, on the

9 page we have before us there are a couple of places in this transcript

10 where it says, "u redu." It's not in B/C/S because that was not

11 translated into English, and I just wanted to inform Your Honours of that,

12 and I think that my friends agree that that means "okay," "all right,"

13 "very well."

14 MR. LAZAREVIC: Well, yes, I agreed upon this during the break

15 with Mr. Nicholls, and there is no problem with this.

16 JUDGE AGIUS: All right. Let's move.

17 MR. LAZAREVIC: [Interpretation]

18 Q. We see on the screen before us now the caution you made to

19 Mr. Borovcanin, and we also see what Mr. Borovcanin heard in the language

20 that he understands. Can we agree that Mr. Borovcanin did not hear the

21 words "against you"?

22 JUDGE AGIUS: Does he have to answer that question? It's already

23 stipulated by --

24 MR. LAZAREVIC: If it is stipulated then I'm fine with this.

25 JUDGE AGIUS: I think so. I have no doubt in my mind.

Page 13876

1 Judge Kwon? Okay, go ahead. Next question, I mean.

2 MR. LAZAREVIC: [Interpretation] Thank you.

3 Q. In this caution you made to Mr. Borovcanin, on two occasions, you

4 said, that there is a possibility that he is or may be a suspect. You

5 used the words "you may be a suspect." [In English] "You are considered a

6 possible suspect." [Interpretation] I'm drawing your attention precisely

7 to these two expressions in this portion of the transcript. Do you agree

8 with that?

9 A. I agree I used the words "you may be a suspect," and I used the

10 words "possible suspect" not "possibly a suspect," but yes.

11 Q. Of course, it doesn't change much to my question, but based on

12 these words that you used, and I'm now not asking you this as a legal

13 expert, does that mean, and do you accept that it can mean, that

14 Mr. Borovcanin was not a suspect but could become one?

15 A. That is certainly not the way it was intended and not the

16 inflection that was in my voice when I said it.

17 Q. Do you believe that Mr. Borovcanin would have been able to hear

18 such distinctions in your English?

19 A. Mr. Borovcanin would have been listening to the interpreter and --

20 Q. Precisely. During examination-in-chief, you said that this

21 caution that you repeated on many occasions during the interviews was a

22 caution that was given to you ready made, that you were instructed to make

23 to the interviewee, if I understood you correctly?

24 A. When I returned to the Tribunal as an investigations team leader

25 and was aware I would be undertaking such interviews, I asked if there was

Page 13877

1 an aide-memoire and this is what I was provided with by one of the

2 investigators of the team that I then joined.

3 Q. If I understood your evidence correctly, you continued to use that

4 aide-memoire throughout the interviews with Mr. Borovcanin?

5 A. Yes, I did.

6 Q. Did you use that aide-memoire every time you made that caution to

7 Mr. Borovcanin?

8 A. To the best of my knowledge, I did. I certainly had it on the

9 table next to me.

10 Q. And if I now accepted this answer of yours as reliable, that would

11 mean that every further caution you made to Mr. Borovcanin would have been

12 identical to the first one, correct?

13 A. With the exception of possibly the odd word but...

14 Q. Right. From your caution that we have on the transcript in front

15 of us right now, I notice that you did not tell Mr. Borovcanin which act

16 he may be suspected of having committed. You only said, "acts that may be

17 punishable under the Statute of the Tribunal."

18 A. I said, "responsible for committing acts which may be chargeable

19 under the Tribunal's statute."

20 Q. Do you have any reason to believe that Mr. Borovcanin was familiar

21 at the time with all the acts chargeable under the Statute of the

22 Tribunal?

23 A. I think that's a misinterpretation of acts.

24 Q. [In English] Let's take a look. Crimes may be, instead of acts,

25 should be crimes.

Page 13878

1 A. I'm sorry, I didn't know if that was a question.

2 Q. [Interpretation] I will rephrase and try to clarify. Do you have

3 any reason to believe that at that moment, Mr. Borovcanin knew about all

4 the criminal acts, such as genocide, crimes against humanity, violations

5 of the Geneva Conventions and so on and so forth, that were envisaged by

6 the Statute of the Tribunal?

7 A. I have no idea.

8 Q. But you certainly know that there is a large number of criminal

9 acts envisaged by the Statute of the Tribunal, and they are all different

10 in terms of gravity and significance?

11 A. Yes, if we are talking about -- yeah.

12 Q. And not for a moment did you mention to Mr. Borovcanin the

13 possibility that he could be suspected of having committed genocide or

14 having conspired to commit genocide?

15 A. No, it's not mentioned on the interview at all.

16 Q. I think you have anticipated my next question, but just to give a

17 full picture to the Trial Chamber. Throughout these three interviews, the

18 word "genocide" or "conspiracy to commit genocide" was never mentioned; do

19 you agree with that?

20 A. Not to the best of my recollection, no.

21 Q. Thank you. Similarly, when the interview with Mr. Borovcanin

22 commenced, when you cautioned him about his rights, not a word was said to

23 describe the actions that Mr. Borovcanin may have committed that could

24 have elements of a criminal act; in other words, not a word was said about

25 what he was supposed to have done?

Page 13879

1 A. No, but it wouldn't be at this stage because I was giving him his

2 rights, not the questions.

3 Q. But throughout the interviews, from the very first one, through

4 the second one and until the very end, there was not a single point when

5 you told Mr. Borovcanin, "Look, we believe that you committed such and

6 such an act," is that correct?

7 A. I don't recall that being put as a direct question during the

8 interviews, but the purpose of the interview was to establish where

9 Mr. Borovcanin was and what happened. That was the purpose of the

10 interview.

11 Q. Certainly. Just another question in relation to this: From the

12 beginning of the interview and throughout, did you ever say to

13 Mr. Borovcanin that there was a possibility that he could be under

14 Article 7(3) of the Statute suspected of having committed these crimes,

15 namely, that what he said throughout the interview about other persons

16 could also be attributed to him?

17 A. Well, I've said to him then, "everything you say could be recorded

18 and could be used in evidence against you in a later Tribunal proceeding

19 including a trial."

20 Q. Naturally, just to remind ourselves, that the words "against you"

21 were not translated to Mr. Borovcanin at the outset, correct?

22 A. That's correct.

23 JUDGE AGIUS: You didn't know that at the time, did you?

24 THE WITNESS: I only found that out when I was sitting here, Your

25 Honour, excuse me.

Page 13880

1 MR. LAZAREVIC: [Interpretation]

2 Q. Mr. Graham I'm not holding it against you, not at all. I'm sure

3 that it wasn't your error. However, it is clear that Mr. Borovcanin did

4 not hear the caution as you uttered it in English, and I'm not saying that

5 it was your fault or that you omitted it deliberately or anything of the

6 sort.

7 Today, in examination-in-chief, you said that Mr. Borovcanin said

8 at the outset that he had engaged counsel, and you asked him twice whether

9 he wanted to continue the interview without the presence of his counsel

10 and that he consented to it, correct?

11 A. Yes. I asked him when we first met, but obviously there was no

12 normal record of that which is why I repeated it in the interview, to make

13 it very clear.

14 Q. When Mr. Borovcanin, and in the course of the interview, said to

15 you in relation to his education and career what he said to you, could we

16 agree that Mr. Borovcanin has no legal training whatsoever?

17 JUDGE AGIUS: Yes, Mr. Nicholls?

18 MR. NICHOLLS: I don't know that there is any foundation that

19 other than what Mr. -- unless I'm missing something, I don't see there is

20 any foundation for that question. Mr. Borovcanin told him he was a

21 Professor at police academy but that doesn't follow that they had a

22 discussion about his other training or his educational background.

23 JUDGE AGIUS: I see your point. Obviously the whole thing boils

24 down to the following question: Apart from what we have in the

25 transcript, were there other things said that were not recorded and

Page 13881

1 consequently do not show up in the transcript? That's the fundamental

2 thing that has to be answered. If not, I think we can proceed with your

3 next question.

4 MR. LAZAREVIC: No, Your Honour, there is not any such thing.

5 JUDGE AGIUS: So let's proceed.

6 MR. LAZAREVIC: But on this issue I believe that my colleague can

7 stipulate that Mr. Borovcanin is not a lawyer by profession.

8 MR. NICHOLLS: I'm not stipulating to anything along those lines,

9 Your Honour. The reference here just for the transcript is page 4, lines

10 15 to 18 and line 17, Mr. Borovcanin says, "At the moment I work as a

11 Professor, as a lecturer at the police academy in Banja Luka."

12 And it wouldn't surprise me whatsoever if some component of being

13 a Professor at a police academy as having some legal background. Normally

14 it would in systems I'm familiar with.

15 JUDGE AGIUS: Mr. Lazarevic did ask Mr. Graham whether he has a

16 law degree, so I think we are back to square 1. Let's proceed,

17 Mr. Lazarevic.

18 MR. LAZAREVIC: Well, just for the benefits of my colleagues.

19 JUDGE AGIUS: No questions were asked whether being a Professor at

20 the police academy in Banja Luka entailed having a law degree or not, or

21 whether there had been any legal training or not. If no question was

22 asked, there was obviously no question answered. So where do you get from

23 there? No where.

24 MR. LAZAREVIC: Well --


Page 13882

1 MR. NICHOLLS: Just my point was -- the initial question was,

2 "Could we agree that Mr. Borovcanin had no legal training whatsoever,"

3 and then he went to the stipulation to mean that I don't accept.

4 JUDGE AGIUS: That's why I asked whether there was anything else

5 said apart from what we have in the transcript, because that I would

6 accept then after that but, Mr. Lazarevic, take my advice, go ahead with

7 your next question.

8 MR. LAZAREVIC: I will -- as always, I'll take Your Honour's

9 advice.

10 Q. [Interpretation] Mr. Graham, on the basis of the fact that

11 Mr. Borovcanin engaged counsel, could we consider that he believed he

12 needed legal assistance during his interview with the OTP?

13 A. I take it that he decided he didn't need it, that he was happy to

14 start without it, because if he said he wanted it there, I certainly would

15 not have commenced the interview.

16 JUDGE AGIUS: Do you have any idea at how come he attended the

17 interview already assisted by counsel, who would have advised him about

18 that right, if at all? Or was it something spontaneous? How did

19 Mr. Bubic end up there? Was he recruited by the Tribunal's office for

20 him? Was he selected by him?

21 THE WITNESS: I have no background knowledge to it other than the

22 fact that he was due to attend but was at court that morning and

23 Mr. Borovcanin arrived without him and said he was happy to start before

24 he arrived, but I don't know how he came to recruit the particular lawyer

25 in question.

Page 13883

1 JUDGE AGIUS: Yes, Mr. Borovcanin -- Mr. Lazarevic, sorry.

2 MR. LAZAREVIC: Yes. I will proceed.

3 JUDGE AGIUS: Before you proceed, one thing: Did you get a clue,

4 an indication, as to whether Mr. Borovcanin had an opportunity to meet

5 with Mr. Bubic before the first interview took place or before he met with

6 you any way.

7 THE WITNESS: I deliberately did not ask that question. I viewed

8 it as legal privilege, and I didn't want to know what discussions he's had

9 with his lawyer.

10 JUDGE AGIUS: Yes. But not even whether he had encountered,

11 whether he had met with his lawyer, as you put it.

12 THE WITNESS: I didn't ask the question so I don't know.

13 JUDGE AGIUS: Thank you. Yes, Mr. Lazarevic.

14 MR. LAZAREVIC: [Interpretation] Thank you very much.

15 Q. In the beginning of that first interview, Mr. Borovcanin asked to

16 have a copy of the interview tape. You said that would you do it --

17 provide it as soon as possible. Do you remember that part of your

18 evidence, Mr. Nicholls led you through it?

19 A. Yes.

20 Q. We can also agree that the interview started in the absence of the

21 lawyer Mr. Borovcanin hired?

22 A. Yes.

23 Q. Based on the information I have, which is identical to the

24 information in the possession of the OTP, the interview went until 20.37

25 and -- or 10.37 and then because the tape ran out you continued at 10.42,

Page 13884

1 correct?

2 A. I'm happy to accept that. I don't have that page in front of me,

3 but I'm happy to accept that that's the case.

4 MR. LAZAREVIC: Can we have page 23 of this document?

5 JUDGE AGIUS: Yes, Mr. Nicholls?

6 MR. NICHOLLS: I'm sorry, I'm not objecting. I just want to be --

7 I'm not sure what the question was exactly, if it's where the first break

8 was or where the tape first ran out and had to be flipped over. It's

9 slightly different but --

10 JUDGE AGIUS: The way I understood the question was what time the

11 first session ended, what time, it was resumed, and presumably that's in

12 relation to the presence or absence of Mr. Bubic, as I understand it.

13 It's an hour and a half, 90 minute tape.

14 MR. LAZAREVIC: I apologise because I've just read through the

15 transcript, and in here it says 10.37 and it's actually 10.42 that I'm

16 referring at.

17 JUDGE AGIUS: One question: Do you remember what kind of a tape

18 was used, whether it was a 90 minute tape, a 60 minute tape or longer, and

19 my next question is was the tape on all the time or would it be stopped

20 when there was a pause; for example, say a pause of one minute or a few

21 seconds or half a minute? Would you pause the tape or let it run?

22 THE WITNESS: If I ever paused the tape I would comment on the

23 tape. So if it's not commented on it would be allowed to run. I would

24 never pause where nothing would be taped. And as for the length of the

25 tape, 90 minutes was the norm, 120s were viewed as too long, so it would

Page 13885

1 be either a 90 or a 60 minute tape as a rule.

2 JUDGE AGIUS: Thank you. Mr. Nicholls.

3 MR. NICHOLLS: Just to be precise, drawing the Court attention to

4 pages 11 and 12, the tape was flipped over at 9.45. So it was a 45

5 minute-sided tape, and we have the original tapes here. The interview

6 began again at 9.46, immediately after the tape was flipped. And

7 according to the transcript, the first break is at 10.27 resuming at

8 10.42.

9 JUDGE AGIUS: So it's a 90 minute tape.


11 JUDGE AGIUS: I'm not giving evidence but it looks like it.

12 MR. LAZAREVIC: [Interpretation]

13 Q. At any rate, the issue of flipping the tape was not important to

14 me at all. I simply referred to it so as to give a clear indication to my

15 learned friends. At any page, on page 21 of the transcript, it says that

16 the tape has run out and that a new tape would be inserted and then the

17 interview begins at 10.42, which is page 23 of the transcript.

18 At that point, you gave the following caution to Mr. Borovcanin

19 which I will read in English. "You do not have to answer any of our

20 questions [In English] unless you want to. Anything you say will be

21 recorded and could be used in evidence in later Tribunal proceedings.

22 And of course your right to legal representation continues and

23 your lawyer still has not arrived at this location, so if at any time you

24 want to stop the interview, please do so."

25 [Interpretation] And Mr. Borovcanin agreed to continue without his

Page 13886

1 lawyer being present, correct?

2 A. Yes.

3 Q. If we were to look at this caution again, the caution given to

4 Mr. Borovcanin, the one that I have just read out, we can see that once

5 again, you did not tell him explicitly that he didn't need to talk to you

6 at all, that he was free to go at any moment, just leave the room,

7 correct?

8 JUDGE AGIUS: Again, I don't think the question, Mr. Lazarevic, I

9 would split it in two. The first one is whether he told him that he was

10 free not to answer any question, and secondly whether he told him that he

11 could also leave the room. Because that was split before, and it should

12 be split again now, especially considering the witness's answer to both

13 questions before.

14 THE WITNESS: When I'm reminding Mr. Borovcanin of his rights, I

15 do tell him you do not have to answer any of your questions unless you

16 want to. In terms of telling him he's free to leave the room, as I say,

17 as an investigator I have no power of arrest that would be just arresting

18 somebody. And he's just been out on a fresh air break as we say at the

19 start, so it didn't seem like it was something I needed to say at that

20 stage.

21 MR. LAZAREVIC: [Interpretation]

22 Q. Mr. Graham, that's not what I had in mind. What I had in mind was

23 the situation where Mr. Borovcanin would simply stand up and leave the

24 room. He was entitled to do that, and you didn't inform him of that.

25 Do you agree with that?

Page 13887

1 A. I haven't said those words in the environment and the set up and

2 the level of my powers, I didn't see -- deem it necessary.

3 Q. Very well. On this occasion, when you uttered the caution, you

4 did not tell him that whatever Mr. Borovcanin said could be used in the

5 proceedings against him. So this is not a case of imprecise

6 interpretation. Rather, in the English transcript, we can see that you

7 did not utter the words, "Against you"; is that right? Would you please

8 look at it again?

9 A. No, I've not uttered those words.

10 Q. Did you use the same aide-memoire, the one you used the first time

11 you cautioned Mr. Borovcanin?

12 A. It will have been on the table, but I've not read it out verbatim.

13 This is a 15 minute break of a continuing interview. Just to remind

14 Mr. Borovcanin that his rights were the same.

15 Q. But if I'm following you closely, you did not say to him that he

16 had the same rights. You did not draw his attention to that fact.

17 A. I've said because we've had a break, it's just to remind you of

18 your rights.

19 Q. At any rate, the conversation between you and Mr. Borovcanin went

20 on, and it was interrupted at 11.59 as you mentioned in

21 examination-in-chief because Mr. Zoran Bubic, Mr. Borovcanin's lawyer,

22 arrived, correct?

23 A. Yes. I think I had just started a new tape when the note came

24 under the door, and I stopped that tape and started a fresh one again.

25 Q. Thank you very much. That's precisely what I suggested. When

Page 13888

1 Mr. Bubic arrived and when you made a break, this break lasted for about

2 two hours and then at 1406 the interview was continued. For your

3 reference this can be found on page 46 -- 43 of the transcript. Can you

4 confirm that?

5 A. Yes.

6 Q. Today, when being examined by Mr. Nicholls, you said that you did

7 not know Mr. Zoran Bubic from before. He was the then-lawyer of

8 Mr. Borovcanin. Do you remember that?

9 A. No --

10 JUDGE AGIUS: One moment, Mr. Graham.

11 MR. NICHOLLS: Sorry to interrupt. This is the second time. I

12 think it's Goran Bubic and counsel is saying"Zoran." I just draw his

13 attention.

14 JUDGE AGIUS: I think you're right. Yes. Okay, thank you.

15 THE WITNESS: I'm not sure that's not the question I was asked, I

16 thought I was asked if I knew Mr. Borovcanin before.

17 JUDGE AGIUS: It could have been a translation error.

18 MR. LAZAREVIC: I clarify this Your Honour. It's a very simple

19 one.


21 MR. LAZAREVIC: [Interpretation]

22 Q. See here, Mr. Graham, during these interviews that you had with

23 Mr. Borovcanin, he was represented by two different lawyers, correct?

24 A. I don't recall. I -- if it's on the transcript then I'm more than

25 happy to accept it.

Page 13889

1 Q. It stems from the transcript, and this is yet another thing that

2 Mr. Nicholls could stipulate, is that there were two lawyers, Goran Bubic

3 and Zoran Bubic. They have identical last names and very similar first

4 names, so perhaps this is what is creating the confusion.

5 JUDGE AGIUS: This is certainly not what's in a names case. Are

6 you prepared to stipulate that, Mr. Nicholls?

7 MR. NICHOLLS: I'd like to -- I just -- I don't know, Your Honour,

8 at this point if it was two with the same name and they -- I've been going

9 off the transcript where we have the same name.

10 JUDGE AGIUS: Now, if you had stated this before Mr. Meek as being

11 the reason why you wanted to bring Mr. McCloskey as a witness, perhaps you

12 would have stood a better chance.

13 MR. MEEK: Never too late, Your Honour.

14 JUDGE AGIUS: Okay. Thank you.

15 Mr. Graham, let's try to simplify it, during -- you were there

16 during the both interviews all the time, weren't you.

17 THE WITNESS: Yes, I was.

18 JUDGE AGIUS: Do you recall seeing one lawyer there or two?

19 THE WITNESS: I have a memory of one, but if I -- just to clarify

20 it, on this date I conducted four interviews with three different people.

21 So in the lunchtime break there was an interview, and I can't remember if

22 that person had a lawyer. And at the end of the interviews on the 20th

23 there was also a further interview so which lawyer was which, after five

24 years, I have no recollection.

25 JUDGE AGIUS: And the second interview, was it the same lawyer you

Page 13890

1 had seen in the first interview that assisted Mr. Borovcanin?

2 THE WITNESS: I only have a recollection of one lawyer being in

3 the room.

4 JUDGE AGIUS: Okay. Thank you.

5 Yes, Mr. Lazarevic.

6 MR. LAZAREVIC: Well, I must admit this is not the information

7 that I had but --

8 JUDGE AGIUS: Does it help your case if he had two lawyers instead

9 of one?

10 MR. LAZAREVIC: I think I'll be able to clarify this, and we will

11 probably find a solution in our discussion. But this is not of crucial

12 importance at this point.

13 JUDGE AGIUS: Okay. Thank you. So next -- your next question.

14 We have got five minutes to go.

15 MR. LAZAREVIC: [Interpretation]

16 Q. Just to clarify another matter in relation to this: In the course

17 of the interview, there was just one lawyer present, there were not two

18 lawyers there at the same time, were there?

19 A. I have no recollection of two lawyers being present in the room at

20 the same time for the Defence.

21 Q. Thank you. I think that we've managed to clarify at least

22 something. And you have already said that you did not know the gentleman

23 previously, the one that was present during the interview?

24 A. I don't recollect knowing him. Whether he'd sat on a previous

25 interview I had done, I certainly can't remember that.

Page 13891

1 Q. The continuation of the interview on the 20th of February 2002,

2 which begins on page 43, the one that we have just referred to, you once

3 again gave caution to Mr. Borovcanin, which can be found on page 43 and

4 44. You can see it right now. Do you have it before you?

5 A. Yes, I do.

6 Q. Could we observe that once again, Mr. Borovcanin did not receive

7 the translation of the words "against you"?

8 A. No, he did not.

9 Q. And naturally, you will see that once again, the following words

10 were used, "May become a possible suspect." At least that's how it was

11 translated to Mr. Borovcanin.

12 A. I think it says "you may be a suspect" on this, page 44.

13 Q. I'm now quoting to you what was translated to Mr. Borovcanin in

14 B/C/S, and that can be found in the B/C/S transcript. This is what was

15 conveyed to Mr. Borovcanin and perhaps I'm expecting too much of you,

16 hoping that you would know what was translated to Mr. Borovcanin. But I'm

17 just trying to ascertain what he heard out of what you said.

18 But let us go back once again to Mr. Borovcanin's counsel,

19 Mr. Bubic. He arrived and the interview continued. Did Mr. Bubic ask you

20 at the beginning of the interview, this cannot be seen in the transcript

21 and that's why I'm asking you this, did he ask you whether his client,

22 that is to say Mr. Borovcanin, consented to the interview in the absence

23 of his lawyer?

24 A. I don't recall having any conversation with the lawyer.

25 Q. All right. But can we agree that in the transcript, which is

Page 13892

1 before us, and which is a record of the interview, it doesn't say that --

2 it doesn't show that Mr. Bubic asked you at any point whether his client

3 consented to have the interview in absence of his lawyer, it's not

4 reflected anywhere in the transcript, correct?

5 A. No, it's not in the transcript.

6 Q. Thank you very much.

7 JUDGE AGIUS: I think we need to stop here for the day. We'll

8 resume tomorrow in the afternoon at 2.15. Thank you so much.

9 One moment, yes. Mr. Graham, this is addressed to you. I'm

10 telling you this not because I don't believe you are aware of the rule but

11 since you are familiar with this Tribunal, and you probably have a lot of

12 friends here still, I need to confirm that you need -- you cannot liaise

13 with anyone or discuss the substance of your testimony with anyone between

14 now and tomorrow when we proceed. I have your word for that?

15 THE WITNESS: Yes, you do, Your Honour.

16 JUDGE AGIUS: Thank you.

17 --- Whereupon the hearing adjourned at 7.01 p.m.,

18 to be reconvened on Wednesday, the 18th day of

19 July, 2007, at 2.15 p.m.