1 Monday, 25th January, 1999
2 (Open session)
3 (The Appellant entered court)
4 --- Upon commencing at 10.04 a.m.
5 JUDGE SHAHABUDDEEN: Good morning. Will the
6 Registrar call the next case on the list, please?
7 THE REGISTRAR: Good morning, Your Honours.
8 Case number IT-94-1-A, the Prosecutor versus Dusko
10 JUDGE SHAHABUDDEEN: The accused, or the
11 appellant, shall we say, is present. Mr. Tadic signals
12 his presence.
13 May we have the appearances, please?
14 MR. YAPA: May it please Your Honours, I
15 appear for the Prosecutor as appeals counsel with
16 Brenda Hollis, senior trial attorney, and Michael
17 Keegan, trial attorney, and assisted by Ann Sutherland,
18 legal officer.
19 MR. CLEGG: Your Honours, I appear on behalf
20 of the appellant, Mr. John Livingston, assisted by
21 Ms. Navaz Daruwalla.
22 JUDGE SHAHABUDDEEN: Thank you. May I say a
23 few things?
24 We are hoping, in the usual way, to have the
25 coffee break at 11.15.
1 We have read the documentation before us, and
2 that suffices to signal our interest inasmuch as
3 brevity conformable with comprehensiveness as may be
4 possible. So I turn now to the scheduling order of 8th
5 December, 1998, which forms the basis of our meeting
6 this morning. I turn to operative paragraph 4 of that
7 order in which the Appeals Chamber directed that oral
8 arguments on such application for leave to amend shall,
9 if needed, be heard on Monday, 25 January, 1999,
10 commencing at 10.00, to be followed by a closed session
11 Status Conference.
12 The application for leave to amend, being
13 that which is referred to in operative paragraph 2, in
14 which the Appeals Chamber directed the appellant to
15 file any application for leave to amend the notice of
16 appeal and appellant's brief by Friday, 8 January,
18 Now, counsel will move in support of the
19 application. May I, as a matter of housekeeping,
20 inquire how long counsel expects to be?
21 MR. CLEGG: I was tempted to reply "as long
22 as a piece of string," but I shall hope to take on
23 board what Your Honour has said about the desirability
24 for brevity in these proceedings, and I would hope to
25 be able to complete my remarks, if not by the coffee
1 break, certainly shortly thereafter.
2 JUDGE SHAHABUDDEEN: We have a kind
3 of procrastinatory problem arising this way, that it
4 turns out, because of other judicial commitments of
5 other members of the Appeals Chamber, we will only have
6 available to us this morning for the purposes of an
7 inquiry into the particular matter which is before us.
8 So perhaps you could bear that in mind? If, by any
9 chance, it were possible for you to finish before the
10 coffee break so that the other side could commence
11 their response, that might facilitate the conclusion of
12 the presentation in the course of this morning.
13 MR. CLEGG: I will do my best.
14 I think there will come a point during the
15 course of the morning when the Court perhaps ought to
16 move into closed session because in order to address
17 the Court as to the question of leave in relation to
18 the second ground of appeal in the amended notice, that
19 will touch upon matters that I would submit ought to be
20 determined in closed session rather than in open
22 JUDGE SHAHABUDDEEN: What leave are you
23 referring to, Mr. Clegg? Perhaps it is a good moment
24 to invite you to address the objection made by the
25 Prosecution, which you would have seen. The objection
1 is to this effect, that the scheduling order made by
2 this Court on 8th December, 1998, visualised that the
3 appellant would be applying today for leave to file an
4 amendment to its grounds of appeal, and what the
5 Prosecution is saying is that they see no such motion
6 for leave to file an amendment to the grounds of
7 appeal, and consequently, I would suppose it would be
8 their submission that there is nothing to activate the
9 Court this morning, unless you are pleased to invite
10 the Court to regard your amended notice of appeal as a
11 de facto application for leave to amend.
12 MR. CLEGG: I am grateful for that
13 indication, and I can encourage the Court that I
14 certainly will not take until the coffee break to deal
15 with that part of the proceedings, and I can see no
16 reason for the Court going into closed session in
17 relation to that.
18 The Court has already identified that the
19 scheduling order in order number 4 identified today as
20 the day for oral argument on an application for leave
21 to amend. The Court, when it vacated the last date,
22 was aware, by reason of the motion filed on behalf of
23 the Defendant on page 5, that application was to be
24 made to amend the appellant's notice of appeal and the
25 appellant's brief, and it was in the light of that
1 notice being given by the appellant that, firstly, the
2 Prosecution did not object to the vacation of the last
3 date, for which I am grateful, and secondly, that the
4 Court itself vacated the last date and made the various
5 orders identified already by the Court.
6 The Court will be aware that I have only
7 recently been instructed to appear on behalf of the
8 appellant, and my first task, having familiarised
9 myself with the facts of the case, was to consider the
10 grounds of appeal drafted by each side and the briefs
11 that accompanied them. It was that study that
12 convinced me that some of the grounds of appeal settled
13 by the appellant were unarguable and others were
14 expressed in all-embracing language which didn't appear
15 to focus on particular aspects of the appeal that I
16 thought ought to be addressed.
17 In my judgment, the appeal ought to have been
18 expressed in rather more discrete terms, and one other
19 ground hitherto not pleaded appeared ought to be the
20 subject of an application for leave before this
21 Chamber. It was against that background that I
22 resolved to make an oral application for leave to amend
23 the grounds of appeal today, the Court being aware of
24 that intention by reason of the motion that we had
25 drafted on the 25th of November and, indeed, identified
1 the intention for the application to be made in the
2 scheduling order dated the 8th of December. There was
3 likewise an intention also to amend the appellant's
5 It was against that background that I
6 considered the document most likely to assist the Court
7 would be an entirely fresh document that could replace
8 the existing grounds of appeal against the conviction
9 rather than having one document, most of which I was
10 going to abandon anyway, but filleting out really just
11 two parts of it that I wanted to rely on, and then
12 making application in relation to the one fresh ground,
13 which is the new, if leave be granted, ground 2.
14 Such a document would have the advantage of
15 identifying with clarity the issues raised by the
16 appellant and would provide a much easier place of
17 reference for all the parties, and it was against that
18 background that I settled, I hope in an intention to
19 assist, a document entitled "Amended Notice of Appeal"
20 which was filed in accordance with the scheduling order
21 on the 8th of January of this year. That document
22 reduced the grounds of appeal to three, abandoned a
23 number of substantive grounds relied upon hitherto by
24 the Defence and added one entirely new ground, namely
25 ground 2, while seeking to focus the other grounds more
1 on the issues that we would be seeking to raise rather
2 than have them expressed in the all-embracing language
3 that was originally implied.
4 I was, frankly, mortified to receive the
5 Prosecutor's response filed on the 19th of January in
6 which it was thought that I had shown discourtesy to
7 this Court in not indicating in that document, which I
8 had entitled "Amended Notice of Appeal," a paragraph
9 indicating that leave would be sought today to make
10 oral argument in support of that application.
11 I had erroneously thought that having
12 indicated to the Court, as we had, in the motion dated
13 the 25th of November and the terms of the scheduling
14 order of the 8th of December, I thought the combination
15 of those had made it clear that we were today making
16 oral application to amend the notice of appeal, and I
17 had intended that the appellant's brief identified the
18 grounds upon which such application should be made.
19 It would clearly, having seen the
20 Prosecutor's response, have been better to have spelt
21 that out in terms by way of a preliminary paragraph in
22 the notice of appeal, amended notice of appeal, itself,
23 and the fact that I did not do so was not, I can assure
24 the Court, intended as any act of discourtesy against
25 the Tribunal or the Court nor was it intended to
1 inconvenience or be discourteous towards the
2 Prosecution. It may, I'm afraid, reflect a slight
3 unfamiliarity, insofar as I am concerned, with the
4 rules and procedure of this court.
5 For the avoidance of doubt, I am seeking
6 today leave to make oral application to amend the
7 notice of appeal, and I am going to seek to rely upon
8 the submissions contained within the amended
9 appellant's brief to support that application.
10 The error that I have made in not
11 incorporating into the amended notice of appeal an
12 indication that we will be making oral argument today
13 is not, in my submission, an error or omission that
14 ought to be fatal to this process. The Prosecution
15 submits, as I understand it, that irrespective of the
16 merits of the application, the application for leave to
17 amend ought not to be entertained by this Court because
18 of the failure to include in the papers drafted by the
19 8th of January a specific assertion that they were
20 being drafted as an application for leave to amend.
21 We would invite the Court to treat the
22 documents filed as a de facto application for leave to
23 amend and to treat the application today on its merits,
24 and if the merits and justice require the notice of
25 appeal to be amended, then having heard further
1 argument, to proceed with that amendment; and if the
2 merits and justice do not so require, then, of course,
3 rule accordingly.
4 In our submission, the following points ought
5 to influence the Court in determining whether or not
6 the documents filed should be treated as a de facto
7 application. First -- perhaps, if I may add just
8 before I deal with the point, we would invite the Court
9 in any event to permit me today to make oral
10 application for leave to amend, as was envisaged in the
11 scheduling order of the 8th of December last, and in
12 deciding whether to exercise this Court's discretion
13 and to permit me to make that application, we would
14 rely upon the following points:
15 First, the Prosecution does not suggest that
16 they have been disadvantaged in any way by the lack of
17 clarity in the documents filed and, indeed, that they
18 recognise the intention of the appellant --
19 JUDGE SHAHABUDDEEN: Mr. Clegg, may I seek to
20 abbreviate the proceedings by inquiring from the
21 Prosecution whether they are pressing the point that
22 you have not made an application for leave to amend and
23 you are seeking today to have your amended notice of
24 appeal treated as a de facto application for leave to
25 amend. Are you pressing that point, Mr. Prosecutor?
1 MR. YAPA: With respect, Your Honour, yes.
2 JUDGE SHAHABUDDEEN: You are pressing the
4 MR. YAPA: I am pressing the point.
5 JUDGE SHAHABUDDEEN: Then please proceed,
6 Mr. Clegg.
7 MR. CLEGG: The first fact we rely upon is
8 that the Prosecutor does not suggest that they have
9 been disadvantaged in any way by the lack of clarity in
10 the documents filed and indeed they have recognised the
11 intention of the appellant to seek leave to amend
12 today. They do that in paragraph 37 of their
14 Secondly, the failure to draft the documents
15 filed in appropriate terms will not and has not caused
16 any delay because the Prosecutor felt able to respond
17 to the merits of the application, despite their
18 technical failings.
19 Third, to deny the appellant leave to make
20 the application would deny him an opportunity to
21 advance an appeal that may result in his conviction
22 being shown to be unsafe.
23 Four, it would hold the appellant personally
24 at a disadvantage that was a result solely of his
25 lawyer's negligence, and there would seem to be no
1 reason in justice why he should suffer for my drafting
3 Five, it is submitted that it would be an
4 unfortunate result for justice for an appeal, that
5 would otherwise have merit, to be dismissed on a
6 technical ground.
7 Finally, in every jurisdiction of which I am
8 aware, the Court has a discretion to permit an
9 amendment of pleadings during the course of a case,
10 subject to there being no unfairness to the other
11 side. Here, no unfairness is suggested, and we would
12 invite the Court to exercise the discretion that it has
13 in such a way as to permit me today to make an
14 application to amend the grounds of appeal and for the
15 Court to rule upon that application on its merits and
16 not have the application defeated by a pleading
18 So I don't wish to say anything else in
19 relation to that first discrete issue, unless I can
20 assist the Court any further.
21 JUDGE SHAHABUDDEEN: Then will you kindly
22 resume your seat.
23 Mr. Prosecutor, would it be convenient for
24 you to reply, at this stage, to the remarks made by
25 Mr. Clegg on the preliminary issue, if I may so
1 describe it?
2 MR. YAPA: I will make my reply.
3 May it please Your Honours. With Your
4 Honours' permission, may I, at the very commencement,
5 make an introductory remark or an introduction of
6 myself because this is the first occasion that I have
7 the privilege of appearing before Your Honours. My
8 background is -- I'm from Sri Lanka, from the Sri Lanka
9 bar. I have had a considerable number of years
10 practising the criminal law.
11 One element I wish to mention, Your Honours,
12 is that Brenda Hollis, the senior trial attorney, is
13 not present before Your Honours today. She has taken
14 ill last evening, and she has not been able to come
16 Your Honours, my learned friend, in making
17 submissions, submitted to Your Honours that it was an
18 error on his part in drafting the papers and for having
19 presented the papers in this manner. It was also
20 sought to say that it was an error in understanding the
21 Rules of Procedure of Your Honours' court.
22 If Your Honours please, the Rules of
23 Procedure are meant to keep the decorum and the dignity
24 of Your Honours' court. Counsel, parties appearing
25 before Your Honours, are expected to keep to the Rules
1 so that there will be order before Your Honours' court,
2 and also the Rules seek to see that justice is done, to
3 prevent the miscarriage of justice.
4 We have taken at this point an objection by
5 way of a preliminary objection, Your Honour. The
6 President was pleased to refer to the matter and invite
7 my learned friend to make submissions on the matter,
8 but I must say, with great respect, that he has not
9 understood our objection. He has not made a
10 satisfactory reply to the objection that we have
12 May I, with Your Honours' permission, refer
13 to the motion that was filed by the accused appellant
14 on the 7th of December. On the 7th of December, the
15 motion that was filed by the accused appellant was
16 titled "Motion to Vary the Scheduling Order of 25
17 November, 1998 and to Adjourn Status Conference of 9
18 December, 1998." Your Honours were pleased to consider
19 that motion, and Your Honours made the order on the 8th
20 of December. This was referred to by Your Honour, the
22 Very clearly, it was stated in very clear
23 terms that the closed session Status Conference to be
24 held on the 9th of December was cancelled. "The
25 appellant shall file any application for leave to amend
1 the notice of appeal." That is the order of Your
2 Honours. "... shall file any application for leave to
3 amend the notice of appeal and the appellant's brief by
4 Friday, 8 January, 1999." So there is no confusion --
5 there is no reason for there to be any misunderstanding
6 about that order. Thereafter, Your Honours made the
7 order that the Prosecution shall file its response
8 thereto by Monday, 18 January, 1999.
9 Fourthly, the oral argument on such
10 application, oral argument on such application for
11 leave to amend shall, if needed -- if needed, I stress
12 these words, Your Honours, because I strongly believe
13 that Your Honours do consider the preservation of the
14 decorum, the dignity of Your Honours' court, by the
15 obedience to the rules of court will always be
16 respected. "Oral argument on such application for
17 leave to amend shall, if needed, be heard on Monday,
18 25th January, 1999 commencing at 10.00 a.m. to be
19 followed by a closed session Status Conference." Now,
20 that is the position.
21 So what we say is we are not intending, in
22 any way, to deprive the accused appellant of his rights
23 to place his case. We are not considering the merits
24 of the material that has been submitted by the accused
25 appellant by way of some papers that have been filed
1 before Your Honours. They are not applications. They
2 are not titled as applications, not titled as motions.
3 We just call them papers that have been filed before
4 Your Honours. What was necessary was to title those
5 applications as applications -- those papers as
6 applications before Your Honours. There are no
7 applications before Your Honours.
8 So what we say, with the greatest of respect,
9 my submission is that Your Honours consider that these
10 papers are irrelevant to the present proceedings,
11 irrelevant to the present proceedings. The accused is
12 not deprived of his right to urge his grounds of
13 appeal. The situation would then be that the Court
14 reconsider that there is no application before Your
15 Honours, that there is no application before Your
16 Honours, to amend the notice of appeal, to amend the
17 notice. That was the requirement. If that is so, it
18 is my respectful submission that Your Honours will
19 consider that the case goes back to the situation prior
20 to the 7th of December, in which event I urge Your
21 Honours to make an order in respect of the hearing of
22 the appeal, hearing of the appeal, for the dates to be
23 fixed for the hearing of the appeal.
24 I also respectfully submit that Your Honours
25 be pleased to decide on this issue before proceeding
1 further. I thank Your Honours.
2 JUDGE SHAHABUDDEEN: Mr. Prosecutor, would
3 you give some further assistance to the bench? In some
4 jurisdictions, there is express legislative authority
5 of one kind or another for a Court of Appeal to grant
6 leave to amend a notice of appeal or the grounds of
7 appeal therein stated.
8 Am I right that there is no corresponding
9 provision in our statutory and regulatory regime? For
10 example, in the United Kingdom, you have the Criminal
11 Appeal Rules of 1968, Rule 2, paragraph 2, subparagraph
12 C, which expressly confers such a power on the Court of
13 Appeal, and no doubt there are similar provisions in
14 other jurisdictions. Now, we do not seem to have such
15 a provision.
16 What is your reaction to that?
17 MR. YAPA: With respect, Your Honour, it has
18 been mindful of that position that Your Honours made
19 that order on the 8th of December because there is
20 permission, universally, I should say, permission being
21 granted to amend the notice of appeal. It is in
22 compliance or in accordance with such rule, the
23 universal rule, that Your Honours granted that
24 permission on the 8th of December.
25 Today, the position is that there is no such
1 application before Your Honours. Your Honours
2 suggested de facto -- whether my learned friend would
3 argue on the basis that although it has not been termed
4 an application, whether he would take it as a de facto
5 application before Your Honours. I would, with the
6 greatest of respect, submit that the rules should be
7 strictly adhered to, should be implemented by Your
8 Honours' court.
9 JUDGE SHAHABUDDEEN: Let me suggest a point
10 at the other end of the swing of the pendulum. Could
11 there be argument that the absence of a statutory
12 provision empowering the Court to grant leave to amend
13 the grounds of appeal does not denude the Court of the
14 competence which it would have from the normal
15 principle that, in the event of silence, the Court may
16 regulate its own procedure? What do you say to that?
17 MR. YAPA: With respect, yes. It may be
18 adhering to the normal principles, maybe the inherent
19 powers of Your Honours' court in the interests of
20 justice that permission be granted to amend.
21 JUDGE SHAHABUDDEEN: "Inherent" is, perhaps,
22 far too fashionable a word in legal discourse these
23 days. I prefer to speak of a principle which applies.
24 Would you say that in pursuance of that
25 principle, that, in the event of silence, a court, this
1 Court, has competence to regulate its own procedure,
2 the Court may do two things: It may grant leave to
3 amend grounds of appeal, and it may treat some
4 particular documentation as de facto intended to amount
5 to an application for leave to amend? May the Court
6 take that view?
7 MR. YAPA: Yes, Your Honour. I do not intend
8 to stand in the way of an order or ruling by the Court
9 in that way, but my submission is, essentially what has
10 to be considered is by depriving or by rejection or by
11 not accepting these papers before your Court, will the
12 accused be deprived of justice or what he is seeking
13 for? Will there be a miscarriage of justice?
14 It would be my submission that on the papers
15 that have already been filed over a long period of
16 time, over a long period of time, with the greatest of
17 respect, the accused is not deprived of the right to
18 present his case.
19 JUDGE SHAHABUDDEEN: So your position is not
20 that the Court lacks the competence to accede to the
21 motion by the counsel for appellant that the Court
22 should treat the documents filed on the 8th of January
23 as intended to be an application for leave to appeal,
24 you accept the Court has that competence. Your
25 position is the Court should not exercise that
1 competence because appropriate grounds for exercising
2 that in favour of the appellant are absent; is that
3 what you're saying?
4 MR. YAPA: With the greatest of respect,
5 yes. I thank Your Honours.
6 JUDGE SHAHABUDDEEN: The Court will consider
7 this first point before moving on.
8 The Court rules that the appellant may
9 proceed on the basis that his documents of 8th January,
10 1999 are treated by the Court as intended to be by way
11 of an application for leave to amend.
12 Mr. Clegg, you may, therefore, proceed.
13 MR. CLEGG: I'm grateful.
14 Can I move then to deal very briefly with the
15 first ground in that document? It does no more than
16 embrace the original first ground of the appeal settled
17 so long ago but is expressed, I hope, in a rather more
18 focused way, and I thought it helpful to everyone to
19 have one new document that includes that which I intend
20 to argue before this Chamber and excluding that which I
21 do not intend to argue.
22 In one sense, that first ground does not
23 require any application to amend, the Prosecution
24 themselves acknowledge that it's embraced by the
25 original document, but I've included it because I
1 think, hopefully in due course, it will be helpful to
2 have one document that includes all the points, and
3 there are only three of them, that we wish to argue on
4 behalf of this appellant.
5 Insofar as the appellant's brief is concerned
6 so far as this ground is concerned, there was some very
7 trenchant criticism of the original appellant's brief
8 filed by the Prosecution who said, in terms, that it
9 violated an earlier scheduling order made as long ago
10 as the 24th of November, 1997 and was defective in both
11 form and substance.
12 Having read the original appellant's brief, I
13 had considerable sympathy with the response by the
14 Prosecutor to it, and it was against that background
15 that I chose to replace that appellant's brief, which
16 originally amounted to some 237 pages, by a document
17 that certainly embraces the Court's desire for brevity
18 in that it amounts to, I think, ten and, I hope,
19 encapsulates briefly the points that we wish to make on
20 his behalf. It seemed to be sensible to have one
21 document identifying that which we want to argue and to
22 dispose of over 90 per cent of the document that was,
23 in fact, I think, the subject of perfectly legitimate
24 and well-founded criticism. I say no more in relation
25 to that first ground of appeal. That is really only by
1 way of explanation to the Court as to how I approached
3 I move now to consider ground 2, and it is
4 that ground that is entirely dependent upon an
5 application under Rule 115. If that application does
6 not find favour with the Court, then the ground is
7 incapable of being sustained. It is this ground that I
8 perhaps slightly prematurely indicated earlier today
9 raises matters so far as evidence is concerned that
10 perhaps ought to be best discussed in closed session.
11 So I would apply that the Chamber now move into closed
12 session to consider my application to amend the grounds
13 of appeal by adding ground 2.
14 JUDGE SHAHABUDDEEN: Mr. Prosecutor, any
16 MR. YAPA: No objection, Your Honour.
17 JUDGE SHAHABUDDEEN: Then it is so ordered.
18 There shall be a closed session.
19 (Closed session)
13 pages 254-306 redacted – closed session
13 (Open session)
14 JUDGE SHAHABUDDEEN: The Appeals Chamber has
15 discussed this matter. It is grateful for the
16 assistance it has received from both sides and has
17 reached the following decision nem con.
18 One is that the Chamber grants leave to the
19 appellant to amend his grounds of appeal by the
20 inclusion of grounds 1 and 3 as stated in the amended
21 notice of appeal.
22 The Appeals Chamber refuses leave to amend
23 the grounds of appeal by the inclusion of ground 2 as
24 set out in the amended notice of appeal.
25 The Appeals Chamber rejects the application
1 for leave to admit additional evidence, both as regards
2 ground 2 and ground 3.
3 On the basis that the Prosecution would
4 already have had an opportunity to respond to grounds 1
5 and 3, the Appeals Chamber refuses further time to the
6 Prosecution for the purpose of responding to those
8 That ends the consideration of the matters
9 before the Appeals Chamber this morning. The Chamber
10 will now regard the matter as ripe for hearing, and
11 subject to any interventions you have, we will proceed
12 immediately to the holding of a Status Conference to
13 consider the preparation necessary for the hearing of
14 the appeal on the merits.
15 MR. KEEGAN: Your Honour, if I might? I'm
16 sorry. But in your rulings, I don't see any mention of
17 the appellant's leave to amend the brief of argument as
18 well as the application.
19 JUDGE SHAHABUDDEEN: Yes. The leave granted
20 extends both to the notice of appeal and to the
21 appellant's brief. Thank you for giving me that
22 opportunity to clarify that aspect of the matter.
23 Yes, Mr. Clegg?
24 MR. CLEGG: Could I just, for the avoidance
25 of doubt, indicate that reliance is, of course, still
1 placed upon the notice of appeal against sentence that
2 was filed on the 14th of July, 1997. It's a wholly
3 separate motion which I think Mr. Keegan accepts and
4 acknowledges. It relates solely to sentence.
5 JUDGE SHAHABUDDEEN: Would you say that that
6 appeal is affected by anything we have discussed this
8 MR. CLEGG: No, nothing at all.
9 JUDGE SHAHABUDDEEN: Or would you like me to
10 make it clear that nothing discussed this morning or
11 decided this morning affects that appeal?
12 MR. CLEGG: Yes.
13 JUDGE SHAHABUDDEEN: It is so decided.
14 --- Whereupon the motion hearing
15 adjourned thereafter to be followed
16 by a Status Conference