1 Friday, 11 January 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.30 a.m.

5 JUDGE HUNT: Call the case, please.

6 THE REGISTRAR: Good morning, Your Honours. Case number

7 IT-98-32-T, the Prosecutor versus Mitar Vasiljevic.

8 JUDGE HUNT: Now, I propose to give the decision of the Trial

9 Chamber in relation to the Prosecution's application yesterday.

10 The Prosecution has included in its list of the remaining

11 witnesses which it intends to call in its case in reply or case in

12 rebuttal, as Rule 85 calls it, one witness to whom I shall presently refer

13 as VG117. According to the short description provided, the evidence which

14 she is to give is that she saw the accused, Mitar Vasiljevic, at the Vuk

15 Karadzic school in Visegrad representing himself as being associated with

16 the Red Cross and registering a large group of people there. The

17 circumstances in which this is alleged to have occurred, so far as is here

18 relevant, is that these persons were thereby encouraged to believe falsely

19 that the Red Cross would assist them to be relocated.

20 Mr. Domazet, for the accused, has objected that this evidence is

21 not properly in reply. A substantial issue in the case is whether the

22 accused was present in Pionirska Street during the afternoon of the 14th

23 of June, 1992, encouraging a group of Muslims who had been brought to

24 Visegrad that day from Koritnik to enter a house or houses in that street

25 by giving them a guarantee of their safety for their onward trip by bus

1 the next morning to a Muslim centre some distance away. Some witnesses

2 have given evidence that as part of that encouragement, the accused

3 represented himself as being associated with the Red Cross. It is

4 reasonably obvious that if such a representation were made by the accused,

5 these persons would more readily have been prepared to comply with his

6 encouragement to enter these houses because of the well-known connotation

7 the Red Cross has for the protection of non-combatants. It is also clear

8 that this representation forms an important part of the Prosecution case

9 as it may assist the Prosecution to establish that the accused was aware

10 that something untoward was to happen to those persons.

11 Most of those persons died later that evening when the house to

12 which they were later transferred was set on fire, but it is, of course,

13 very much in issue as to whether the accused could be said to have had

14 knowledge that that was to be their fate.

15 These allegations made by the witnesses were put to the accused

16 when interviewed by the OTP's investigator, and they were denied by him.

17 That interview -- that interview was tendered as part of the

18 Prosecution case in chief. None of the Prosecution witnesses who gave

19 evidence in support of that case appears in any way to have placed

20 reliance upon an armband said to have been worn by the accused as

21 indicating an association with the Red Cross.

22 The accused denied the evidence of the Prosecution witnesses when

23 he was called as a witness in his own case. Other witnesses called in the

24 Defence case did refer to the armband. One gave evidence that he thought

25 that the armband did indicate an association with the Red Cross, but other

1 Defence witnesses deny that it gave any such indication, despite prior

2 written statements they had made to the contrary. The particular

3 significance which the various Defence witnesses did give to the armband

4 was not always consistent.

5 The evidence which the Prosecution seeks to call from VG117 would,

6 if accepted, tend to suggest that the accused had, on another occasion,

7 represented himself as being associated with the Red Cross in order to

8 encourage Muslims to do something which he wanted them to do.

9 It has not been submitted that such evidence is irrelevant to the

10 issue in question here. The objection very properly taken by Mr. Domazet

11 is that it does not constitute evidence in reply. The Trial Chamber

12 agrees entirely with the submission Mr. Domazet has made. The issue as to

13 whether the accused represented himself as being associated with the Red

14 Cross in order to add strength to his encouragement of Muslims to do

15 something he wanted them to do arose fairly and squarely in the

16 Prosecution's case in-chief as soon as the record of interview was

17 tendered.

18 It was open to the Prosecution to call VG117 in its case in-chief

19 in relation to that issue. Her evidence could and should have been given

20 at that time. Nothing occurred for the first time during the Defence case

21 which gives rise to a case in reply upon that issue. In particular, the

22 departure of the Defence witnesses from their prior written statements

23 that the accused regularly wore an arm band indicating an association with

24 the Red Cross did not constitute a new issue in the case which gave the

25 Prosecution the right to a case in reply.

1 When the Trial Chamber indicated yesterday that it was not minded

2 to allow a case in reply upon this issue, the Prosecution sought leave to

3 reopen its case in-chief, in order to call Witness VG117 upon this issue.

4 THE INTERPRETER: Could we ask Your Honour to slow down, please?

5 JUDGE HUNT: I'm sorry.

6 Mr. Groome for the Prosecution explained his failure to call this

7 evidence at the proper time because he had not realised that the Defence

8 witnesses would depart from their prior written statements when they gave

9 their evidence and that he had eliminated VG117 from the Prosecution's

10 witness list because, prior to the trial, the Trial Chamber had emphasised

11 that there should not be any unnecessary proliferation of witnesses on the

12 same issue and because VG117 had been reluctant to give evidence.

13 The Trial Chamber, however, had also made it clear, prior to the

14 trial, that it was not disposed to follow the practice of some Trial

15 Chambers in the past of permitting the parties freely to present cases in

16 reply and rejoinder without proper justification. A good illustration

17 where the Trial Chamber made it clear that a case in reply was justified

18 arose in relation to the evidence of Dr. De Grave for the Prosecution when

19 Mr. Domazet failed to put the Defence case in contradiction of his

20 evidence to him in cross-examination. The whole purpose of the

21 introduction of Rule 90(H)(ii) requiring the cross-examiner to do just

22 that is to prevent unnecessary cases in reply and rejoinder.

23 Whether Mr. Groome is justified in the course he took is not a

24 matter that needs to be resolved, as even if he were quite mistaken in

25 taking that course, the fact remains that the evidence concerning the

1 alleged representation by the accused that he was associated with the Red

2 Cross, if accepted, may prove to be an extremely important part of the

3 Prosecution case as to his knowledge that something untoward was to happen

4 to the group from Koritnik once they were corralled in the houses in

5 Pionirska Street.

6 Mr. Domazet stated that he had evidence in response to the

7 proposed evidence of VG117 from persons who were at the Vuk Karadzic

8 School at the relevant time that the man who was registering people on

9 behalf of the Red Cross was not the accused but another man who resembled

10 him. Apart from denying the evidence of VG117, such evidence may have the

11 effect also of reducing the probative value of the Prosecution witnesses

12 who said that it was the accused who was offering the guarantee of safety

13 on behalf of the Red Cross in Pionirska Street on the 14th of June, 1992.

14 Such evidence would thus have been admissible in the Defence

15 case. However, it is only fair that the accused should now be permitted

16 to reopen his case to call such evidence once the Prosecution is permitted

17 to reopen its case in chief to call VG117. There is therefore no

18 prejudice to the accused caused by permitting the Prosecution to reopen

19 its case for that purpose.

20 The Trial Chamber does, however, emphasise that VG117 will be

21 permitted to give evidence only in relation to the conduct of the accused

22 at the Vuk Karadzic School, including the basis upon which she identified

23 him. Mr. Groome has already conceded that evidence of the date upon which

24 this is alleged to have occurred, which would otherwise have been very

25 relevant to another important part of the Prosecution case, should not be

1 given, although it would be reasonable to permit Mr. Groome to state that

2 it was within so many days of the day upon which the house in Pionirska

3 Street was burnt down, with a loss of so many lives.

4 No other evidence will be permitted from VG117 in-chief which

5 tends to corroborate or support the Prosecution case in any other way in

6 relation to the accused's association with the death of these people in

7 Pionirska Street or in relation to any other issue in the case.

8 The cross-examination of VG117 cannot, of course, be so

9 circumscribed as the Defence would unfairly be prejudiced by the reopening

10 if it were prevented from eliciting from her any evidence in support of

11 its case which it would have been able to elicit from her had she been

12 called in the Prosecution case in-chief. However, if the

13 cross-examination does stray into other issues, the Prosecution must, in

14 turn, be entitled to deal further with those issues in the same way as it

15 would have been entitled to deal with them had she been called in the

16 Prosecution case in-chief. The Trial Chamber draws attention to that

17 prospect so that the Defence does not inadvertently stray into other

18 issues without realising what the consequences will be.

19 One consequence of this ruling is that it may now be impossible

20 for the Trial Chamber to complete the hearing of this trial by the end of

21 next week as it had hoped to. Two members of the Trial Chamber are due to

22 participate in another trial which commences on the 21st of January and

23 which is expected to take a considerable period of time. I propose to

24 make arrangements for this trial to continue in tandem with that other

25 trial for a limited period. Such an arrangement will place a considerable

1 burden on the Judges concerned as it means that they will be sitting in

2 one trial starting in the early morning and the other in the afternoon and

3 into the evening. It is therefore essential that everything in the

4 present case which can be completed before the end of next week must be

5 completed by then.

6 This is an issue which can be discussed after the next witness has

7 been called.

8 Now, your next witness, Mr. Groome, I understand you want to get

9 through today.

10 MR. GROOME: Yes, Your Honour, the witness is scheduled. I was

11 mistaken. It's an 8.00 flight this evening. So we have the entire day if

12 we need him and that's Dr. Nigel Raby, and he's in the witness room and

13 his computer has been set up.

14 JUDGE HUNT: Thank you.

15 MR. GROOME: Your Honour, while we're waiting for the witness, the

16 doctor will be working with some of the X-rays in a PowerPoint

17 presentation. We attempted this morning to get copies for the Court, but

18 because of some computer incompatibilities, that was not possible. What

19 I'm proposing, that is, when he concludes his testimony, Mr. Bruff will

20 take him down to the computer section and we will have copies for the

21 Court to use in its deliberations of everything that he uses here in court

22 today.

23 JUDGE HUNT: Thank you.

24 [The witness entered court]

25 JUDGE HUNT: Sir, will you please make the solemn declaration in

1 the document that the usher is handing you.

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

3 whole truth, and nothing but the truth.

4 JUDGE HUNT: Sit down, please, sir.

5 WITNESS: NIGEL RABY

6 JUDGE HUNT: Mr. Groome.

7 Examined by Mr. Groome:

8 Q. Morning, Dr. Raby.

9 A. Good morning.

10 Q. Dr. Raby, I ask you to begin by telling us what is your profession

11 and where do you currently work.

12 A. I'm a radiologist, and I work at the Western Infirmary in Glasgow,

13 Scotland.

14 Q. And what is your position there?

15 A. I'm a consultant.

16 Q. I'd ask you to briefly describe for us your post-graduate

17 education.

18 A. I spent some time training in general physician -- as a general

19 physician, obtaining a post-graduate degree of the so-called MRCP. That's

20 the Medical Council Physicians of the United Kingdom. Subsequently then

21 trained in radiology and obtained post-graduate qualification, and I'm a

22 Fellow of the Royal College of Radiologists.

23 Q. And can you briefly summarise your professional experience for

24 us?

25 A. My main experience professionally is in the radiology of trauma,

1 damage to bone, muscles, and soft tissues.

2 Q. Now, in addition to your -- well, in addition to what you've

3 described, you also have some teaching responsibilities.

4 A. Yes. I, with some colleagues, run a course done for some 13 years

5 now which trains junior doctors in the interpretation of X-rays

6 particularly relating to trauma. This is run a dozen times a year. We

7 have about 1.200 students each year go through these courses. And

8 consequent to that, there is a book published related to the course which

9 has been in circulation for some years. It's now regarded as one of the

10 base textbooks in the United Kingdom for such a subject and sold heavily

11 in the United States and Australia, and is translated into several

12 languages in addition.

13 Q. And are you one of the authors of that book?

14 A. I am indeed.

15 Q. In addition to that book, have you published articles in

16 professional journals regarding the field and study of radiology?

17 A. Many articles, yes.

18 Q. Now, Doctor, before we talk specifically about this case, I'm

19 going to ask you to describe for us the basics of an X-ray plate and what

20 it is we need to know about the fundamentals of it before we begin to

21 study it and draw conclusions from it.

22 A. Well, a radiograph, as we call it, radiograph or X-ray, is

23 obtained. Usually in the field of trauma, we obtain two radiographs taken

24 at right angles to one another. This is important because you have a

25 three-dimensional structure which you're trying to visualise in two

1 dimensions, so one plate, one view taken either from the front or the side

2 would be insufficient to ascertain the position of bones that have

3 undergone trauma and displacement.

4 The radiographic plate, bone simply stops X-rays reaching the

5 plate and leaves the plate looking white. Soft issues and air allow

6 X-rays to reach the plate and the plate turns black. So we see bones as

7 essentially white structures, gaps between bones and structures around the

8 bones as essentially black structures.

9 Q. Doctor, just to clarify a little bit, I'm going to ask you to

10 refer to the computer screen and I would direct or ask everybody in the

11 courtroom to look at their computer screens. Would you put up the frontal

12 or AP view of the bone and describe for us where the front of that bone

13 is? When we talk about the front of the bone, can you maybe indicate

14 where that is for us?

15 A. I'll need to flick a few screens forward here, if you bear with

16 me. These lines will appear. We can come back to them later on. But if

17 you want to look starting at the frontal bone, we'll just get past this

18 and then we'll come on to this.

19 That is a view of the frontal view. That's looking at the front

20 of the leg. It's if the person was standing directly in front of you and

21 you were looking at it.

22 Q. Perhaps with your cursor you could show us on the right hand of

23 the 2001 X-ray there, could you maybe drag the cursor along the front of

24 the bone.

25 A. Well, the front of the bone would actually be down here.

1 Q. You've --

2 A. Because that's facing towards you. So that's the front of it

3 there.

4 Q. Now --

5 A. Can I just clarify that? Remember that an X-ray is passing

6 through the body from front to back. So what is superimposed on it is the

7 back of the bone. So we're looking straight through from front to back.

8 Q. Now, the left side of the image of the bone, would it be fair to

9 say that that is the side of the bone and not actually the front of the

10 bone?

11 A. Correct.

12 Q. Now, Doctor, in specifically now regarding this case, were you

13 requested to examine a number of X-rays and to study them and to make a

14 report on them?

15 A. Yes, I was.

16 Q. And --

17 MR. GROOME: Your Honour, at this time I seek to tender

18 Prosecution document number 166, the CV of Dr. Raby, and Prosecution

19 Exhibit 169, the report of Dr. Raby.

20 JUDGE HUNT: I must have an early edition. It doesn't have

21 numbers on the bottom.

22 Is there any objection, Mr. Domazet?

23 MR. GROOME: I have fresh copies. They will be provided in a

24 minute.

25 MR. DOMAZET: No, Your Honour.

1 JUDGE HUNT: Thank you. The CV will be Exhibit P166 and the

2 report dated the 12th of December, 2001 will be P167.

3 MR. GROOME:

4 Q. Doctor, I'd ask you to return to your first slide, and I'll ask

5 you a few questions about your conclusions. Before --

6 JUDGE HUNT: I'm sorry. I'm sorry. I misread it. The report

7 should be P169. I had written down the two consecutive numbers, but --

8 MR. GROOME: Yes, you are correct, Your Honour. It's 169.

9 JUDGE HUNT: It is 169. I'm sorry to interrupt.

10 MR. GROOME:

11 Q. Now, Doctor, before we actually get into your analysis, I want to

12 ask you about -- can you describe for us in measuring distances on bones,

13 or let's say on the tibia, did you choose a reference point from which you

14 took all measurements?

15 A. Yes, I did.

16 Q. And can you show us with your cursor where the reference point

17 was?

18 A. The reference point is the distal tibia, which is that point

19 there, that structure there. It's a slight curve, but take the highest

20 point. It's actually been marked there and you can also see on this other

21 radiograph a similar point has been marked.

22 Q. And is there -- what is the scientific name for that part of the

23 tibia?

24 A. It's called the plafond.

25 Q. I'd ask you just to spell that for our reporters.

1 A. It's p-l-a-f-o-n-d.

2 Q. Now, can you describe for us in measuring the distances on a

3 fracture, or let's talk about this case specifically, how did you approach

4 the task of comparing the two X-rays that were provided to you?

5 A. Well, having established that fixed reference point which was

6 common to both radiographs, it's then possible to make comparable

7 measurements from that distal point to the tibia to the various parts of

8 the fracture.

9 Q. Now, when the bone is fractured completely into two separate

10 sections, does that impact from where you take measurements from?

11 A. If there is some bony overlap, then it's possible to get slightly

12 confused, but the way to overcome that is to make sure that you use the

13 fixed portion of bone which isn't going to move. In this case, that's the

14 lower portion of the bone, which is why we've taken the distal end of the

15 bone as the reference point.

16 Q. I'm going to ask you to proceed to your next slide. Now, on the

17 X-ray from 1992, did you take a measurement from the reference point to

18 the lowest part of the fracture on the lower portion of the bone or the

19 tibia?

20 A. Yes, I did.

21 Q. And would you tell us how it was you determined what the lowest

22 point of the fracture was?

23 A. Well, if I take that arrow off one second and use my cursor again

24 if it will come up, you can see, I hope, that we can see the -- this is

25 the front of the bone. Remember we're looking side on at the leg now. So

1 this is the front portion of the tibia, shin bone, and you can see it

2 coming up to this point here at which point there is a black line going

3 across. Now I'll just draw your attention to this structure here, which

4 is the top half of the fracture as it were. This bone has actually

5 overlapped and displaced slightly. So this -- you could say, Well, why

6 don't I measure there? That's because it's not, in fact, physically at

7 this moment attached to the bottom half because the bone has broken in two

8 along this line here. So I can trace with confidence the front edge of

9 this bone and I can follow it -- follow it to there where it should

10 continue towards the top of the screen but then it stops, and at this

11 point it goes off at an angle and, therefore, that's the distance from my

12 fixed reference point on the front of the bone looking side on to the most

13 proximal portion of the fracture.

14 Q. And what was the measurement of that distance?

15 A. That's 8 centimetres.

16 Q. Can you please proceed to your next slide. Did you measure --

17 make a similar measurement on the X-ray plate from 2001?

18 A. Yes, I did.

19 Q. And can you tell us how you determined where the lowest portion of

20 the fracture on that leg was?

21 A. Yes. Well, if we do -- repeat the same exercise, now, this case,

22 the fracture that is or has been clearly present in this bone is no longer

23 visible as a black line because the fracture is united, but what you can

24 see is the legacy of the healing process, which is this white substance.

25 You can see here, normally, the centre of a bone is actually fairly dark

1 but there is this white substance here, which is the way the body has

2 healed across the fracture line. Therefore, this delineates where the

3 fracture line was, and you can see it going down. And that process

4 terminates at this point here, which is why I've made that measurement as

5 the lower end of the fracture that has occurred in the past in this leg.

6 Q. And when you measure that distance, what was it?

7 A. This is only 4 centimetres.

8 Q. Now, Dr. Raby, these are two different X-rays taken a number of

9 years apart. Are there any problems with comparing the distances or the

10 measurements on two X-rays that were taken by different machines at

11 different times?

12 A. There's a potential problem if the factors used to take the

13 radiographs are substantially different. The main thing would be possible

14 difference in magnification, but if one actually looks at the radiographs

15 and looks at these bones, and particularly those of the ankle, which are

16 actually slightly cut off the bottom of the right-hand image, these bones

17 are virtually the same size. So in other words there is no major

18 magnification factor at work here.

19 If it is present, it is a matter of millimetres and therefore

20 these two X-rays are, in fact, comparable.

21 Q. Now, would you please proceed to your next slide?

22 JUDGE HUNT: Mr. Groome, remembering that you're calling this

23 witness in reply, you would be entitled to put to him specifically the

24 evidence given by the Defence witnesses which you have to deal with in

25 some stage.

1 MR. GROOME: Yes, Your Honour.

2 JUDGE HUNT: But you don't have to ask it in a non-leading form.

3 You can put to him the witnesses' evidence about the calcification or

4 whatever it was so that he can deal with it. You may want to do it after

5 he's been through all of these slides, but at some stage you are entitled

6 to put it to him directly.

7 MR. GROOME: Yes, Your Honour. I actually planned it a little

8 later but if the Court finds it helpful --

9 JUDGE HUNT: No, no, no. The way you asked that last question was

10 so carefully non-leading, I thought you might have been under a

11 misapprehension that you were not allowed to ask it in a leading form.

12 MR. GROOME: Thank you, Your Honour.

13 JUDGE HUNT: All right.

14 MR. GROOME:

15 Q. Did you make a measurement from the reference point on the 1992

16 X-ray to what you determined to be the highest point on the fracture?

17 A. Yes, I did.

18 Q. And how did you determine where the highest point on the fracture

19 was on the 1992 image?

20 A. The process is exactly the same as for the -- as discussed

21 previously. If I take this off, again our proximal reference point,

22 bottom end, is the same, and again, what we are looking for is -- I have

23 decided, determined, here is the fracture, here is the fracture line going

24 here. I'm looking for the uppermost portion of that. And I can also

25 confirm that that's the uppermost portion because I can also see this

1 fragment of bone here, going up here, should actually marry with this

2 piece here, but it doesn't because it's fractured and displaced and

3 therefore is a portion of bone going to this point here, and that then

4 marries with the fracture line that I've determined coming up at this

5 point here. So there is the upper margin, which then fits in like that.

6 Q. And what did you calculate the distance between your reference

7 points?

8 A. That's 14.5 centimetres.

9 Q. And did you make a similar comparison or measurement on the X-ray

10 from 2001?

11 A. Yes, I did.

12 Q. And can you please move to your next slide? Can you describe for

13 us how it was you determined on this healed bone where you believed the

14 original fracture -- the highest point on the original fracture was

15 located?

16 A. Again, a similar process. From our fixed reference point at the

17 bottom, I have an idea of the approximate plane of the fracture from down

18 here, and then I'm looking to see where the bone returns to normal. You

19 can see here that this bone here is actually much whiter and thicker than,

20 for example, its counterpart at the front and that there is a bulge in the

21 bone, a step in the bone, and this is where the fracture has reached. It

22 follows up that line to this point here. So I have two methods of

23 identifying that that is the top end of the fracture which has now healed

24 at that site, which gives me that line there.

25 Q. Doctor, before we move on to that, I want to ask you about this

1 bump that you've described. Would it be fair to say that that is a result

2 of the healing process or the remodelling process of the bone?

3 A. That's correct.

4 Q. Can you describe for us is there a standard way that the bone

5 remodels itself or are there variations?

6 A. There are variations, but they are relatively minor.

7 Q. Can you please describe for us a little bit about the process of

8 remodelling and the possible variations in what you would see on a healed

9 bone?

10 A. Well, following a fracture, the body will try and immobilise the

11 fracture site by laying down some tissue to try and stop movement and to

12 try and help bone to form again across the fracture site, thereby

13 repairing the bone. The technical term for that is callus. It's not true

14 bone but it's a sort of primitive tissue. It does that to try and

15 immobilise the bone, relieve pain and allow the bone to start healing.

16 After a period of time, this substance called callus, which has served its

17 purpose, starts to be reabsorbed by the body and that area replaced by

18 new, healthy bone, as we would understand bone.

19 As a result of that process, there is usually left telltale mark

20 or sign where that process occurred. It's unusual for the process of a

21 fracture, particularly if the fracture has initially been displaced

22 somewhat, for that to occur with absolutely perfect match. So the body

23 then undergoes this process which we describe of remodelling, remodelling

24 that primitive callus tissue into healthy bone tissue. It's very rarely

25 that it's an absolutely perfect alignment, so you end up with a little

1 telltale bump or mark where that process has occurred. If the fracture is

2 very severely displaced, and they are unable to get very good alignment,

3 that may be a very major deformity that's left and signs left. If the

4 fracture has been able to be pulled into good alignment with only a little

5 bit of repair work done -- to be left to be done by the body, then that

6 telltale sign will be relatively small.

7 Q. And this phenomenon that you're talking about now, how -- in

8 distance, how far would it progress past the original fracture site? Can

9 you give us a value of what the limits are?

10 A. I think it's difficult to give exact values, as I've said. It

11 slightly depends on how displaced and how malaligned the fracture is. But

12 a good, simple fracture with good alignment, you'd expect this to be a

13 matter of one to two centimetres maximum.

14 Q. Okay. Looking at this particular X-ray from 2001, can you give us

15 an opinion regarding how wide or how long this remodelation process, how

16 far along the bone or how much of the bone does it occupy?

17 A. Looking at this, I don't think -- I think this bone has been in

18 reasonably good alignment following the fracture and initial treatment,

19 and that the extent of this remodelling would be fairly limited, and that

20 therefore what we are seeing here as a legacy of that process is very

21 close to the original fracture site.

22 Q. So in other words, the bump that you've described, it's your

23 belief that the fracture line is in the same proximity as that bone?

24 A. Absolutely.

25 Q. In your opinion, is it possible that -- that the actual fracture

1 line could be two to three centimetres below that bump or feature you

2 described for us?

3 A. I think that's too far away. I think it would be less than that.

4 Q. I'd ask you to look below that bump that you've determined to be

5 the highest point and ask you, do you see any feature along that bone that

6 would indicate to you the possibility that the fracture terminated at a

7 point lower than the point that you've selected?

8 A. No, I don't think that's possible.

9 Q. Now, did you measure this distance between, on the 2001 X-ray,

10 from the reference point to the highest point of the healed fracture?

11 A. Yes.

12 Q. And what value did you determine for that?

13 A. Twenty centimetres.

14 Q. Now, doctor, we have been looking at the side or lateral view of

15 the two X-rays from 1992 and 2001; is that correct?

16 A. That's correct.

17 Q. Did you also conduct a similar exercise with the AP or frontal

18 view of the X-rays?

19 A. Yes, I did.

20 Q. I'd ask you to proceed to that slide. I'm sorry, before we go

21 there, did you also trace the fracture on both of these X-rays?

22 A. I did.

23 Q. Would you please show us the fracture in the 1992 X-ray?

24 A. I take that off and take you through that. As I described

25 earlier, one has to determine where there is a break in the bone, and that

1 is seen as this black or darker line extending to this point here, so the

2 break is from there. Remember again, this is an overlap. This shadow

3 here, this white structure here, is the top part of the bone which has

4 been, as it were, displaced and forced down a little bit. So it may

5 confuse you. I hope I'm making this reasonably clear. The fracture

6 therefore starts there and goes through to that point there, like that.

7 Q. Maybe if you would remove it and put it back one or two times to

8 assist us. Could you now trace the fracture on the 2001 X-ray for us?

9 A. Well, again, we've -- as I've previously explained, I've

10 determined the -- where the fracture line, I believe, lay at the front of

11 the bone. Remember again, we are looking at the side, so this is the

12 front. From this point here and it terminates at that point there. The

13 line we can see of the repair and healing of bone through here, coming up

14 here, and then there is a sort of long tongue projection up the back of

15 the bone there, getting close to the point at the top, to give a fracture

16 line of approximately that plane.

17 Q. Could you remove and put that back one or two times to assist us?

18 Now, if we might move to the frontal or AP view.

19 JUDGE HUNT: Before that happens, I wonder if you could get the

20 doctor to explain this to me. When you compare the red line which he has

21 showing the fracture, and the measurements he has taken, I'm just a little

22 curious to know why the -- on the 1992 one, the measurement is taken from

23 a point above the bottom of the fracture. I know why the doctor says

24 that. But when he gets to the 2001, the fracture appears to end above

25 where the measurement is taken.

1 MR. GROOME:

2 Q. Do you understand the Judge's question?

3 A. Yes. I've been trying to simply indicate the general plane of the

4 fracture. The actual measurement I think you should take as the true

5 extent of the fracture. I'm trying to indicate the degree of angularity

6 and the overall length of the fracture indicative. I've not measured

7 that. The red line has not been measured. It's been drawn by me freehand

8 to just try and assist you in understanding the plane of the fracture, but

9 it's not an accurate measurement.

10 Q. Doctor, let me ask you this. Let's look at the 2001 X-ray and the

11 top of the yellow arrow that says 4 centimetres, there is a gap between

12 that and where the red line terminates?

13 A. Yes.

14 Q. Can you explain --

15 A. Again, the measurement -- the green and yellow lines are ones that

16 I've accurately measured. The red line is simply a free-hand depiction by

17 myself of the approximate plane of the fracture, to show that there is

18 quite a difference in the steepness of the angle of the fracture. It does

19 not represent an accurate measurement.

20 Q. Okay. Proceed to the frontal view. Now, let's start with the

21 1992 image. And if you would proceed to the first calculation that you

22 made regarding that.

23 A. I should go through the process before. This is the fixed

24 reference point, the bottom or distal end of the tibia, the tibial plafond

25 which I defined earlier. This is the point which I use as a reference.

1 2001, similar point. Here again is the fracture. And again, you have

2 this problem perhaps of not quite appreciating that there is a fracture

3 line there and you say there is another line there. This is again due to

4 the bone having overlapped. So to calculate, we again are going to use

5 the distal portion, that's the bottom half of this bone, which is fixed to

6 the ankle joint. This is the part which can move. So that would be

7 inaccurate. So we can use the portion which doesn't move with reference

8 to our distal point. If we trace up the margin of the bone and we get to

9 the point here, then we see taking off is one line there and another line

10 there. So that is the distance that I've measured from there to that

11 point there, which is that.

12 Q. Could I just ask you to retrace? You said that the bone took off

13 in two directions. Could you just retrace the cursor a little bit slower

14 to show us again?

15 A. From this point, there are two lines that you can see. There is

16 one line going across in this direction, which ultimately ends up going

17 there, and there is another line going in that direction. Remember, this

18 is a roughly circular, three-dimensional structure, so the fracture line

19 -- one of these fracture lines is actually going around the front of the

20 bone. Another one is passing around the back of the bone. It's doing it

21 in a spiral fashion. So that they are forming different angles and

22 passing in a different plane to finally meet at that bony spicule up

23 there. So eventually, if you can imagine tracing around this as a

24 circular object, you go along there, up there, around there, up to this

25 point here, back down to -- this is the back of the fracture, if you like,

1 and back where you started.

2 Q. Can you -- just once again, can you trace what would be the front

3 portion of the bone in this image?

4 A. Front portion in this image is this portion here. This you see

5 would marry with this portion of the bone here, which is where the

6 fracture has occurred, and this bone has overlapped. So this portion of

7 bone here should in fact, in a normal person, be fitting into here, just

8 slightly like a jigsaw. The two pieces would marry back together if we

9 could get them into position.

10 Q. What did you calculate that measurement to be?

11 A. Eight centimetres.

12 Q. And did you also take a measurement to the highest point on the

13 fracture as you determined it?

14 A. Yeah.

15 Q. I'm sorry, let's move to the 2001.

16 A. We can do it whichever way you like.

17 Q. Let's do it in the order of your slides.

18 A. Okay. Similar process here, exactly the same as we did on the

19 side-on view. Taking our fixed reference point, what we can see here

20 again is this interruption of the normal appearance of the centre of bone,

21 which is the telltale sign of where the body has had to heal the fracture,

22 where the fracture line has, in the past, been passing across this point

23 here and coming down to this point here. So there is the distance that I

24 ascertained that was the lowest point of this fracture.

25 Q. And what measurement did you find there?

1 A. Three centimetres.

2 Q. Okay. Can we proceed to your next slide?

3 A. M'hm.

4 Q. Again, would you describe for us how you determined or did you --

5 how did you determine the highest point of the fracture on the 1992 X-ray?

6 A. Well, if I take it off and show you again, taking our fixed

7 reference point distally -- and again, I'm looking for -- this, as I

8 explained just a minute ago, is slightly more complicated because it's

9 describing a spiral around this bone, so what I've taken is where this

10 line comes across and meets here, in fact then goes up the side of the

11 bone and then there is another bony bit there. So on this view, I have

12 decided to take this point here. There could be an argument for measuring

13 there or there, but I've already used that as the highest point on the

14 side-on view. I understand this is slightly difficult for you to

15 understand but it's because it's a spiral injury in a circular structure

16 which we are seeing in two dimensions. So I've ascertained -- and the

17 reason that partly I've done there is because I can do the same comparable

18 exercise on the other foot. But that is where I've decided -- I'll just

19 clarify that. Where this line here, site of the fracture, comes across

20 and meets the other side of the bone.

21 Q. And what did you calculate that to be?

22 A. Nine centimetres.

23 Q. Doctor, before we move on, can you once again just point with your

24 cursor to the highest point that -- the point that you did not choose, but

25 the highest point of the fracture that we can see?

1 A. There. It's a spicule of bone, a shard of bone, if you like,

2 sticking out there.

3 Q. Now, we are able to see that because the bones have dislocated; is

4 that not correct?

5 A. They have moved apart. Technically, it's not a dislocation. I

6 don't think we should define a dislocation, but this, yes, the bone has

7 fractured and has moved slightly apart, has angled, so that we can see

8 that as a separate structure.

9 Q. Assuming for a second that these were X-rays of the same leg,

10 would you be able to see that same point on the image in 2001? Would you

11 expect to see that?

12 A. We would expect to see the telltale signs of bony remodelling.

13 Q. On the same --

14 A. On that.

15 Q. Now, did you make a similar calculation or comparison with the

16 2001 X-ray?

17 A. I did. And again, from my fixed distal point here, traced up the

18 side of this bone, where there is again this telltale bump, as we

19 described before, indicating that there has been bony remodelling here and

20 that the fracture site is there or very close to that point, like so.

21 Q. What measurement did you get there?

22 A. 11.5 centimetres.

23 Q. Now, I'd ask you to remove those -- the blue line and 11.5

24 centimetres, and I want to ask you something about the bump that you've

25 observed. What would be -- in your expert opinion, what would be the

1 maximum distance or variability of where the fracture, original fracture

2 line could be from that bump or feature that you've observed on this

3 bone?

4 A. Again because it's a relatively small bump, if we like to use that

5 term, it implies that there has been a relatively small amount of callus

6 formation and bony remodelling, which again suggests that the fracture

7 site was close or very close to that point.

8 Q. Now, there are a couple of black lines at the top of the image. I

9 know that you did not make them, but can you describe for us what you see

10 when you look at that portion of the bone?

11 A. Well, what we're seeing here is just a tiny portion of the bony

12 remodelling that we could see on the side-on view. The side-on view in

13 that radiograph from 2001, if you may remember, the top-most portion of

14 the fracture I'd ascertained as being some 20 centimetres from the distal

15 joint. I don't think I can accurately measure it on this front view, but

16 that's just sort of peeking out the side of this bone. But to see it

17 properly is -- the best way to look at it is as we already have done, is

18 from the side-on view.

19 Q. Okay. Now, in addition or as a result of this comparison of the

20 measurements, do you have an opinion regarding whether or not the X-rays

21 from 1992 and 2001 are of the same leg?

22 A. I have an opinion.

23 Q. Can you please tell us what that opinion is?

24 A. It is not the same leg.

25 Q. In addition to the measurements that you took, are there other

1 features of the fractures and the heel fracture themselves which support

2 your conclusion that they are not of the same leg?

3 A. Yes. I think -- can I proceed to the next slide?

4 Q. Yes, please.

5 A. If you take those lines off again, I think probably the most

6 telling factor is that if we look at these fractures, so again if I draw

7 your attention -- this is the main fracture line at the front of this

8 radiograph. On this radiograph there is actually a healing fracture also

9 going through here, again part of the spiral process so that, as in this

10 one, you see one line there and one line there. On this one you can see

11 one line healing through this point, and there's another line healing

12 through that point. It's less easy for you to see, I appreciate. There

13 is a little dent there which is again like the corollary of this bump

14 here. In my opinion, that's where the fracture line was.

15 Now, if I then mark those in for you, you have two fracture lines

16 which appear superficially to lie in approximately the same position and

17 plane. However, if we then look at the second component of these

18 fractures, namely this one, you'll see in this one the longer and more

19 vertical fracture lies above the red line, whereas on this fracture the

20 longer and more vertical component of this spiral fracture lies below the

21 red line. Clearly, that cannot have happened by any stretch of the

22 imagination between this radiograph on your left and the radiograph on

23 your right. Therefore, these are clearly radiographs of two different

24 legs.

25 Q. Now, Doctor, earlier today did I ask you to take a white tube and

1 to draw approximations of the fractures, of both fractures on the same

2 tube?

3 A. Yes, you did.

4 MR. GROOME: I'd ask Mr. Domazet -- I gave it to Mr. Domazet to

5 look at it. I'd ask if Mr. Domazet would give it to the usher and it be

6 provided to the witness. If I could just see it before it's given to the

7 witness. Perhaps we'll call this Prosecution artefact 172.

8 Q. Now, Doctor, did you trace as best you are able the fracture line

9 that you observed from the two radiographs taken in 1992?

10 A. Yes, I did.

11 Q. Maybe I'd ask you to just hold that up above the computer screen

12 so the Court can see. What colour did you do that in?

13 A. 1992 is in black.

14 Q. How is the front of the bone indicated on that tube?

15 A. By the letter "F".

16 Q. And did you also trace the fracture or the healed fracture that

17 you observed in the 1992 X-ray?

18 A. Yes, I did.

19 Q. What colour did you do that in?

20 A. That's in red.

21 Q. Do those two lines correspond?

22 A. No.

23 Q. I'd also note -- did you put your name and the date on that tube?

24 A. Yes, I did.

25 MR. GROOME: Your Honour, at this time I would tender Prosecution

1 artefact 172 into evidence.

2 JUDGE HUNT: Any objection, Mr. Domazet?

3 MR. DOMAZET: No, Your Honour.

4 JUDGE HUNT: It will be Exhibit P172.

5 MR. GROOME:

6 Q. Now, Doctor, just so that it's clear to those of us who may look

7 at this tube, is it a scale representation?

8 A. No. I'm no great artist. It's the best I can do, but I think

9 it's fairly close to what we're looking for.

10 Q. Now, in addition to your examination of the fracture, did you make

11 observations or comparisons between other parts of the bones depicted in

12 the two radiographs?

13 A. Yes, I did.

14 Q. And could you please describe for us what you did -- what

15 comparisons you made?

16 A. Well, these are radiographs labelled from 1992 and 2001 of the

17 heel bone and associated bones around it taken from the two radiographs

18 we've already been looking at. And one can compare the appearances of

19 these bones to see if there are any major differences, and I found

20 several.

21 If I can draw your attention to the appearance of the bone here.

22 This is call the talus, and at the back here it articulates with this bone

23 here which is -- you've called the heel bone. Technically, it's the

24 calcaneus. And you can see the rather globular configuration. It's a

25 rounded structure. I hope you can appreciate that.

1 If you take the same bones, here is the talus, here is the heel

2 bone or calcaneus, and here is the portion that I'm interested in. You

3 can think -- see this has a rather sharp and angulated, thin appearance as

4 compared to this thick, globular, rounded appearance of the bone here.

5 Q. Now, Doctor, it has been suggested to the Chamber by another

6 expert, Dr. Vucetic, that over the course of the nine years between the

7 taking of these two X-rays that a bone has -- it is normal for a bone to

8 undergo deterioration and regeneration, and in this process of

9 deterioration and regeneration that one would expect to find differences

10 such as this between X-rays taken of the same bone nine years apart.

11 Would you agree with that conclusion?

12 A. I don't agree with that conclusion, not in this instance. There

13 may be some truth in what he says about certain bones at certain sites,

14 particularly after trauma, but this is a bone away from the trauma site.

15 It's not a bone which is known to change its appearance particularly

16 through life. It's a bit like having blue eyes or grey hair or whatever.

17 That's kind of in your genes, and that's the way the bone forms.

18 Everybody is a little bit different, and there is no reason to suggest

19 that these bones should change their shape like this at this site.

20 Q. Is there another or are there other features which you found to be

21 different --

22 JUDGE HUNT: Before you leave that one, Mr. Groome, I'm having a

23 little trouble perceiving where we're referring to. If you look at the

24 1992 one on the screen and near the red arrow, there is a rounded shape

25 which goes down over a darker area and then comes back over a lighter

1 area. Now, is that the one that the doctor is referring to? Keep going.

2 Yes, that's the one I'm referring to. Now, if you compare that to the

3 2001, is there not a similar shape coming down through the other bone?

4 There seems to be some sort of a shadow of something there.

5 THE WITNESS: I think the point here, I have the advantage of

6 knowing the detailed anatomy of this area, but what you can hopefully see

7 is this white line here which comes up to there and is continuous with

8 that. This is actually on the other side of the bone. Again, this is a

9 three-dimensional structure, so left and right, as it were, would be

10 superimposed one on the other. But I can see this runs in continuity with

11 this portion here.

12 JUDGE HUNT: Well, there are --

13 THE WITNESS: And this side, if I do the same thing, I get to

14 here. This white line comes up here and runs in continuity with this

15 portion here. This white line continues on.

16 JUDGE HUNT: So the shape that I can see in the 2001 is on the

17 wrong side of the ankle.

18 THE WITNESS: The shape there is actually present here. It's that

19 shape there. It's on the other side of the bone now.

20 JUDGE HUNT: Now could I ask you this then, Doctor --

21 I'm sorry, Mr. Groome, but I want to get this very clear in my

22 mind.

23 On 2001 where the red arrow is, is that almost like a spur there

24 that comes out? It's very faint.

25 THE WITNESS: There is a little spur that comes out at that point

1 there, just there, yes, which is not present on the other.

2 JUDGE HUNT: Is that the part that you're referring to though,

3 Doctor? That's what I want to know.

4 THE WITNESS: The overall -- yes. That's part of what I'm

5 referring to. But the overall configuration is of a thin, almost sharp

6 tongue of bone here, whereas here I've got a globular, rounded, much

7 larger protrusion of bone there. There is this second portion here which

8 is, if you like, on the other side of the heel, away from us, which

9 marries with that there. But I'm concerned that this portion here does

10 not have anything similar on this radiograph to that portion there.

11 JUDGE HUNT: Thank you, Doctor. I now understand what the part of

12 the bone was that you're referring to.

13 I am sorry to have interrupted, Mr. Groome, but I didn't want to

14 lose it before we went on to the next one.

15 MR. GROOME: Yes.

16 Q. Doctor, is there another feature that you compared between the two

17 bones?

18 A. Yes. Again, there's this little bony excrescence here, which if

19 you compare it with its counterpart on this again similar sort of process,

20 this is a relatively small little bump here, whereas on here we have a

21 much bigger, rounded bump. And again that's different, and there's no

22 reason why that should particularly change with time.

23 Q. Are these the two most significant differences that you found in

24 the heel structures and the foot structures between the 1992 and the 2001

25 X-rays?

1 A. Well, I've highlighted these two as I'd hope that they were the

2 two easiest for non-technical people to appreciate. There are some others

3 which I can try and demonstrate to you if you would like.

4 Q. I'd ask you to go through each of those now.

5 A. Well, if we look at the 2001 film, if we -- this is the back of

6 the heel bone, and we can see that there's quite a big bump here as this

7 comes out and round. This is a very thick white piece of bone.

8 Unfortunately in this, and this is why I have not highlighted it

9 particularly, I can actually see that this is different at this point here

10 but I have to confess it is obscured by this wire support frame. So I may

11 have difficulty in persuading you that that is a major difference.

12 However, if I move on to this area here, I hope you may appreciate

13 that there are a series of white lines running vertically, probably one,

14 two, three, four, five -- five or six. The similar portion of bone here,

15 there is, at most, one.

16 Q. Doctor, can you tell us what those white lines are?

17 A. This is part of the internal structure of the bone. If you

18 remember and appreciate that when we take an X-ray, we see the bone. So

19 you don't see the skin overlying it. So you can see the bone, but the

20 X-ray keeps going. So you're actually looking at the internal

21 architecture of the bone. This is like the internal scaffolding. So

22 there are struts, very fine struts of bone inside the bone. As you can

23 see, it is a solid object, which are the internal scaffolding. These are

24 called bony trabeculae, if I can indulge you with that Latin term, but

25 that's the technical term. Think of it as scaffolding struts.

1 Q. Can you spell "trabeculae" just for the court reporter?

2 A. Yes, I can. T-r-a-b-e-c -- no. I have to write it down. I'm

3 sorry. I'm getting mental lock. I can do it, but it's one of these long

4 words. I can do it. T-r-a-b-e-c-u-l-a-e.

5 Q. And, Doctor, would a trabeculae, would one expect that to change

6 significantly over the course of nine years in the same person?

7 A. No, you would not.

8 Q. Are there any other features that you examined?

9 A. On the same theme, you can also see here the supporting

10 scaffolding of these trabeculae. Now, in this case in 1992, they radiate

11 fairly uniformly from a line along here, this white line here, radiating

12 out towards the back of the heel bone.

13 If you look in this case here, the white line isn't nearly as

14 distinct, but the way these radiate out, not in the same pattern, they

15 actually form two sort of groups. There's one group which is going back

16 in this sort of direction, and there's another direction which actually

17 curve down towards this point.

18 Now, as I say -- I appreciate that may be a -- slightly difficult

19 to appreciate to those who are not used to looking at these things, but to

20 recap, I'm trying to say that these come in a rather more uniform radial

21 pattern whereas these form two distinct groups, one rather straight and

22 one rather curved. I don't know if that can be appreciated or not.

23 Q. Now, Doctor, in addition to everything that you've compared so

24 far, did you also compare the tibia -- I'm sorry, the fibula that's

25 apparent in both X-rays?

1 A. I did.

2 Q. I'd ask you to maybe flip back to one of your earlier images that

3 will allow you to tell us your conclusions regarding that. Can you first

4 tell us what you observe when you look at the tibia of the 1992 bone?

5 A. It's normal. There is no evidence of injury -- sorry. To the

6 fibula.

7 Q. I'm sorry. Yes, to the fibula.

8 A. The 1992 film, the fibula is entirely normal. There's no evidence

9 of fracture.

10 Q. Now, what do you see when you look at the fibula on the 2001

11 X-ray?

12 A. There is evidence of a healed fracture of the lower third of the

13 fibula.

14 Q. I'd ask you to maybe trace one or two times with your cursor to

15 show us where you believe the fracture was on the fibula.

16 A. It's in this area here. On this radiograph it doesn't show quite

17 so well. In reality, in life, I have the advantage of what is known as a

18 bright light where I can put the radiograph against a very bright light

19 and show up that dark area of the radiograph. I haven't got the capacity

20 to do that here, but on the original radiograph that's approximately where

21 the fibula fracture is.

22 Q. If these two X-rays were of the same person, looking at the

23 remodelation or the body's repair of the fibula in the 2001 X-ray, would

24 you expect to see -- be able to see that fracture on the 1992 X-ray if it

25 were the same person?

1 A. Yes.

2 Q. Now, it has also been at issue in this matter what impact a

3 refracture approximately a year or slightly less would have on the ability

4 to compare -- make the comparisons that you've made. So I would ask you,

5 would you describe for us what, if anything, what impact would it have if

6 a person suffered a refracture of the bone approximately three centimetres

7 below the original fracture of the tibia approximately one year later?

8 A. Well, I don't think that hypothesis can be answered because I

9 don't think it would be able to refracture the bone three centimetres away

10 from the original fracture.

11 Q. Can you describe for us why you think that is not possible?

12 A. Well, if you're going to refracture, the obvious place for the

13 refracture to occur would be at the original fracture site. There is a

14 theory that sometimes fractures unite and are even stronger than original

15 bones so the fracture won't occur there, and there is some truth in that.

16 So what would actually happen is that a refracture, if another injury was

17 sustained, would occur well away from the fracture. So I think there's

18 only two possibilities that could occur if the patient sustained another

19 similar spiral type injury. They would either refracture exactly through

20 the original fracture site or they would sustain another injury to this

21 bone at some great distance, but I don't believe it's possible to have a

22 second injury very close to the original fracture.

23 Q. Looking at the two X-rays that you looked at, is it possible that

24 a refracture of the bone approximately one year later accounts for the

25 differences in measurements and angles that you have seen?

1 A. No, I don't believe that's possible.

2 Q. In course -- in the course of your work in this case, did you have

3 an opportunity to read the report of Dr. Yvan De Grave?

4 A. I did.

5 Q. And would you please comment on his findings and methodology that

6 he used?

7 A. His methodology I felt was extremely sound and basically his

8 findings and mine concur.

9 Q. Did you have an opportunity to look at the report of Dr. Vucetic?

10 A. I did.

11 Q. Would you please comment --

12 JUDGE HUNT: There are two reports, remember.

13 MR. GROOME: I'm sorry.

14 Q. On the two reports of Dr. Vucetic, one in November of last year

15 and one in December of last year.

16 A. I did.

17 Q. And would you please comment on the methodology and the findings

18 in his report?

19 A. There wasn't so much methodology but the findings I disagreed with

20 because his measurements and his comments about the type of measurements I

21 thought were erroneous.

22 Q. Thank you, Doctor. I have no further questions.

23 JUDGE HUNT: Well, Mr. Groome, he is called in reply. Is he --

24 are you not going to ask him to explain why they are erroneous?

25 MR. GROOME: Yes, Your Honour.

1 JUDGE HUNT: Particularly the effect of the callus formation on

2 the ability of measure and the fact that even Dr. Raby's measurements

3 differ according to which view you're looking -- which view he looks at

4 the X-ray, and they certainly differ amongst each other. That's the

5 purpose of calling him as a witness in reply, if I may suggest.

6 MR. GROOME: Yes, Your Honour.

7 Q. Can you please comment for us on the differences or the reason, as

8 you understand it or believe it to be, the differences between the

9 measurements that each of the experts who have examined these X-rays have

10 come to?

11 A. From memory, I think the most obvious problem that they have is to

12 say why is it that a measurement taken on one view, a front view, is a

13 different measurement on the side view. Well, that's because it's a

14 spiral fracture. So where you see -- if you look at the image in front of

15 you on the left-hand side, for example, I'll try and explain this part.

16 Again imagine this is our fracture line, so on this frontal view, I'm

17 taking it on the one side of it to be there because that's where it

18 crosses the bone there, on the other side to be there, because that's

19 where it crosses the bone there. So that gives me two measurements on

20 that view.

21 Now, if I look at this bone side on, I'm going to be looking at

22 this portion of the bone, right up the centre. Therefore, where I see the

23 break in that bone on the side-on view will actually be probably about

24 there and that will give me a different measurement, therefore, from that

25 distance and a different measurement from that distance. The fracture is

1 spiralling around the bone. So it simply depends on which angle you view

2 the bone from. In fact, if you were to take, say, ten X-rays at 20 degree

3 intervals going around the bone, every time where you measured the

4 fracture line appeared to you, it would change. So it is not at all

5 surprising that the measurements on one view are not the same as on the

6 other view. In fact, that's entirely what you'd expect.

7 Q. And were you able to determine how Dr. Vucetic chose the point

8 that he measured from?

9 A. I don't, because he provided no diagrams such as were provided

10 with the other reports. He just made statements and gave measurements.

11 Q. Now, Dr. Vucetic, one of the measurements that he calculated was

12 the distance from the same reference point that you used, but he

13 calculated the distance between that and the lowest portion of the upper

14 part of the tibia that was broken that had overlapped. In your opinion,

15 is that a sound way to measure and compare fractures?

16 A. No. It makes no sense whatsoever.

17 Q. And why does it make no sense?

18 A. Because to treat the fracture, you're going to place the bones

19 under traction and move them apart and back to their normal position.

20 Therefore, the distance between the fixed distal reference point and the

21 part of the fracture that he is measuring is subsequently then going to

22 move by several centimetres.

23 Q. Now, Dr. Vucetic also talked about that callus formation or the

24 remodelation of bone made it very difficult to have any reliable findings

25 regarding measurements on the 2001 X-ray. What would be your opinion of

1 that assertion?

2 A. I don't think that's the case. I mean, we can see where the bone

3 remodelling has occurred. We can see the telltale signs of the

4 approximate fracture line and the two coincide. So that to suggest that

5 the callus or the remodelation, as you call it, is not closely

6 approximated to the fracture line, again makes no sense.

7 Q. And accepting, however, that assertion, would it explain the

8 differences that you found between the two bones, the two X-rays?

9 A. No. I don't think it would.

10 MR. GROOME: Nothing further, Your Honour.

11 JUDGE HUNT: Mr. Domazet?

12 MR. DOMAZET: Yes, Your Honour.

13 Cross-examined by Mr. Domazet:

14 Q. [Interpretation] Good morning, Dr. Raby. On behalf of the

15 Defence, I shall have a few questions for you.

16 First of all, relating to the fracture itself and the

17 possibilities of healing. In any situation when a fracture heals, is the

18 fracture line always visible?

19 A. Yes, almost certainly it is.

20 Q. If that is so, how then can we tell that the fracture has healed?

21 A. We can tell because we can see, as the example in front of you

22 shows, that the two fragments of bone are not absolutely now perfectly

23 aligned, but we can see that there is normal bone growth across that

24 area. And we can also tell, in the real world, by clinically examining

25 the patient, which is actually as important as looking at X-rays.

1 Q. So your opinion is that on the radiograph of 2001, this fracture

2 line is visible. I mean, the whole fracture line.

3 A. I can see where the fracture was, yes.

4 Q. Once a fracture has healed, can the fracture itself be seen or the

5 newly formed bone, the callus?

6 A. Newly formed bone.

7 Q. This newly formed bone tissue or callus, does it merely fill in

8 the gap or crack, or does it cover the area of the fracture, thickening

9 the bone?

10 A. It covers the area of the fracture and may thicken the bone.

11 Q. This bone thickening, is it visible on a radiograph?

12 A. Yes, it is.

13 Q. Judging by this thickening visible on radiographs, do we use them

14 to orientate ourselves regarding the place, the location, of the fracture,

15 or do we see the fracture line on the healed fracture?

16 A. You can see both, because you can see the line of the healed

17 fracture. You don't see the fracture itself because it's filled in, but

18 you see where the filling in of the fracture has occurred, and you also

19 see the remodelling of the bone around that site.

20 Q. In that case, in your opinion, is it possible to have such

21 precision regarding the appearance of the fracture after it has healed?

22 A. Yes, I think you can be quite precise where the fracture was, once

23 healing has occurred.

24 Q. And in view of the years that have gone by after the original

25 fracture, how do these years affect the site of the fracture? Does this

1 have an effect regarding the degree of difficulty in determining the

2 fracture site?

3 A. Not really. In good circumstances, complete healing will have

4 occurred at about six months, and after that time, there will be very

5 little or no subsequent change. The interval of another year, five, 10 or

6 20 years are unlikely to change the radiograph any further from about six

7 months after the original injury.

8 Q. When you were answering Mr. Groome's questions regarding the

9 fibula, when asked whether it is possible for the fibula to have been

10 broken or cracked in 1992 without that being visible on the x-ray, I think

11 that you said that that was impossible or highly improbable.

12 A. That's correct.

13 Q. Yesterday, Dr. Vucetic showed us radiographs of another case, with

14 views of the fibula from two angles showing that on one of those angles,

15 the fracture could not be seen, whereas on the other view it was visible.

16 Would you agree that that was possible?

17 A. That is in general possible, but not in this case.

18 Q. In the case of a refracture, Mr. Groome's questions referred to a

19 possible refracture three centimetres away from the original fracture.

20 This is a figure that was given by the accused himself, Mitar Vasiljevic,

21 who had heard from the doctors that the refracture was three centimetres

22 away. However, if we put aside that figure, which need not at all be

23 reliable, and we have medical documentation to show that 11 months after

24 the original injury, there was a refracture, does a refracture, as a term,

25 imply a fracture at the same site, a repeated fracture at the same site?

1 A. A refracture, in my understanding, would mean a fracture through

2 the original fracture line, not another fracture close to it.

3 Q. Yes. That is what I thought. So in your opinion, a refracture is

4 a repeated fracture at the same site as the previous one.

5 A. [No audible response]

6 Q. You said a moment ago, answering a question from Mr. Groome, that

7 at times, this refracture - at least that was the term translated to me -

8 was greater than the first fracture, larger, more significant. Could you

9 explain what you mean? Does it mean a more serious fracture or what

10 exactly you meant?

11 A. Well, I don't think I said it was a greater fracture. I said if

12 you had a second fracture, it may be further away, away from. But I don't

13 believe I said that it would be a greater fracture, and if I did say that,

14 that's not what I meant.

15 Q. So very well. Let me refer to what you just said, that it was

16 further away from the first fracture. Could you explain a little what

17 that means?

18 A. Well, as I think I tried to explain earlier, if you are going to

19 have a second fracture - by a second fracture I mean a different fracture

20 at a different site, so not a refracture, which is another fracture

21 through the original site - if you're going to have a second fracture, you

22 will do one of two things, either go through the original site, which

23 would be a refracture, or a second fracture would most likely occur well

24 away from the site of the original injury. So in this case, where we can

25 see the fracture is in the lower part of the bone, a second fracture would

1 most likely occur in the upper part of the bone, in fact not even on the

2 X-rays that we have here. It would be higher up the leg than that.

3 Q. But there are no such traces on the radiograph of 2001?

4 A. That's correct.

5 Q. In view of the medical documentation that we have saying that, in

6 May 1993, Mitar Vasiljevic had a second fracture, and you have radiographs

7 taken in 2001, would it be possible to conclude that that refracture from

8 1993, that is following the one of which you are looking at the X-ray from

9 1992, left the kind of traces that are now visible on the radiograph of

10 2001?

11 A. No, I don't think that's possible.

12 Q. Could you please explain why not? Do you mean that the refracture

13 was absolutely identical to the 1992 fracture and that is why you have

14 such an opinion, or is there some other reason for it?

15 A. Well, the measurements that I've given you between the first and

16 second radiograph are quite different. The angles of the fracture are

17 quite different, and in particular, on the radiographs that were still up

18 on the screen, as I showed you, the orientation of the short versus the

19 long fractures are entirely opposite to one another. I have already said

20 that it would not be possible to have a second fracture at the same site,

21 because you would either refracture, in which case the overall

22 appearances, second radiograph would match the first, which they clearly

23 don't, and so, as I say, it is not possible that there has been a second

24 fracture at the site.

25 You say you have medical documentation to say this has occurred.

1 I think we would need to see the radiographs to show the second fracture

2 and compare it with the first at that time, and I would be very happy to

3 look at these if they were available.

4 Q. When you refer to a radiograph, you mean a 1993 radiograph of the

5 second fracture? I assume that is what you mean.

6 A. If that's when the second fracture is alleged to have occurred,

7 then that's when I would like to have a radiograph of, yes.

8 Q. Yes, but my question was: The radiograph of 2001, on which there

9 are traces, visible traces, of a fracture, is it possible to establish, on

10 the basis of that radiograph, whether there was a refracture or not?

11 A. In my opinion, the radiograph of 2001 has evidence of one

12 fracture. I see no reason to suggest that there has been two fractures on

13 this radiograph.

14 Q. In the event that in 1992, and in 1993, there was a leg fracture

15 at the same site, would it be possible to establish that in 2001? Would

16 there be any difference, or would you just see a single, healed fracture,

17 particularly bearing in mind the nine-year time interval?

18 A. I would see evidence of probably a single, healed fracture. The

19 evidence that I have in front of me is that the radiograph of 2001 does

20 not represent the fracture that is visible in 1992.

21 Q. When commenting a moment ago on Dr. Vucetic's report, you said

22 that he did not provide any images or sketches or drawings. However,

23 yesterday, he did bring some drawings, which have been admitted into

24 evidence, and I'd like you to look at them, as we are having a break now,

25 and then we can comment on them after the break. This will give you a

1 chance to look at them during the break, if the Prosecution hasn't already

2 shown them to you before you started your testimony today.

3 JUDGE HUNT: Were they admitted in evidence, Mr. Domazet?

4 MR. DOMAZET: Yes, Your Honour.

5 JUDGE HUNT: All right. As long as they are exhibits, then the

6 doctor may have a look at them. What was the number, do you know?

7 MR. DOMAZET: Yes, it's D39.1, D39 -- 39.2, 39.3, 39.4, 39.5, and

8 this table.

9 JUDGE HUNT: Yes, they were certainly in evidence. I'm sorry, I

10 thought you were also referring to the X-rays that the -- that Dr. Vucetic

11 had of another patient demonstrating the --

12 MR. DOMAZET: No, Your Honour.

13 JUDGE HUNT: -- fact that the regrowth or the remodelling had

14 masked the original injury. You don't want him to have a look at those?

15 Because I don't think they were put in evidence, were they?

16 JUDGE JANU: Yes, 38, yes.

17 JUDGE HUNT: Oh, Exhibit 38. Do you want him to look at those as

18 well?

19 MR. DOMAZET: Yes, Your Honour, if possible, yes.

20 JUDGE HUNT: Very well. Those may be shown to the doctor during

21 the vacation -- during the adjournment. We will -- yes, Mr. Groome?

22 MR. GROOME: Just a brief scheduling matter. Dr. Broeders should

23 be here by now. I anticipate that's going to take 15 or 20 minutes to

24 switch this computer equipment with Dr. Broeders' audiovisual equipment

25 that he has, just so that the Court knows. I don't know if the Court

1 wants us to just put him on in the afternoon and finish possibly early in

2 the morning session, or whether the Court wants to take a break in the

3 middle of the morning session.

4 JUDGE HUNT: Just in case Dr. Raby wants to refer to this, I think

5 we should keep this on the screen, and if necessary we will take a break

6 while it's being done.

7 We will resume at 11.30.

8 --- Recess taken at 11.02 a.m.

9 --- On resuming at 11.35 a.m.

10 JUDGE HUNT: Yes, Mr. Domazet.

11 MR. DOMAZET: [Interpretation]

12 Q. Dr. Raby, I hope that you were able, during this break, to take a

13 look at the evidence I've referred to provided by Dr. Vucetic.

14 A. Yes, I have.

15 Q. Have you had an opportunity to also read the supplemental report

16 by Dr. Vucetic which was not available to you at the time when you gave

17 your first opinion? And in it, there is also a table provided by him.

18 A. I have read that, but I don't have access to it to refer to at

19 this moment.

20 JUDGE HUNT: What is its exhibit number? 29.1, is that the -- or

21 29? Because the doctor could be given the original exhibit.

22 MR. DOMAZET: I think that it is D38, but ...

23 JUDGE HUNT: 38 was the Vucetic report, and actually, the court

24 deputy was just telling me before we came in that it doesn't seem to have

25 ever been handed in as an exhibit. It was made Exhibit 38, D38. So we'll

1 need a copy of it anyway, but do you have a copy that you can show

2 Dr. Raby?

3 MR. DOMAZET: [Interpretation] Do you have in mind the one dated

4 28th December of 2001? Is that what we have in mind?

5 JUDGE HUNT: I have in -- I haven't got the document in front of

6 me either, but I'm thinking of the one that he sent, we received during

7 the court vacation and in which he talked about the different

8 measurements.

9 MR. GROOME: I have a copy handy if --

10 JUDGE HUNT: Thank you very much indeed, Mr. Groome. Do you have

11 a number on it by any chance so that we can resolve --

12 MR. GROOME: I have the original filing. I have the original

13 filing, not the --

14 MR. DOMAZET: I can give a copy also. I can give a copy.

15 JUDGE HUNT: Thank you. All right.

16 MR. DOMAZET: I wasn't sure that --

17 JUDGE HUNT: As long as there are no secret messages in it,

18 Mr. Domazet. That's all we were worried about. That was a joke.

19 MR. DOMAZET: [Interpretation]

20 Q. The first two pages of the supplemental report contain an

21 explanation of Dr. Vucetic, and on the third page there are matters that I

22 consider to be relevant and that I would like Dr. Raby to comment since he

23 has been brought here to rebut this very evidence.

24 Dr. Vucetic, in the supplemental report of his, mentions the

25 determination of the upper spot of the fracture of tibia on the profile

1 X-ray dating from 1992, and he finds that your measurement was 14.5

2 centimetres. Dr. De Grave's measurement was 15.2, and Dr. Bollen's 13

3 centimetres. And he believes all these variations to be significant and

4 believes that they need to be explained. The reasons for them could be a

5 different methodology used in interpretation of the X-rays. Dr. Vucetic's

6 measurement was 15.4. This pertains to the upper spot. Could you comment

7 on this, please?

8 A. Well, I think -- if I can look at these images so I can remind

9 myself exactly what we're looking at. I have the thing off.

10 So this is on the -- just remind me, 2001 or 1992? 1992, I think

11 you said.

12 Q. 1992.

13 A. Well, as I pointed out to you earlier, there is a degree of

14 interpretation as to where you actually define the fracture line to end.

15 It seems to me that the differences in those measurements are actually

16 very small and probably not significant. Surely of more significance is

17 the comparative between the approximate same distance in 2001, where there

18 is quite a degree of difference between the two. It's really that that

19 matters rather than the very small differences in the measurement of the

20 single film by different people dated at the same date.

21 Q. Yes. We will get to the 2001 X-ray. However, this that I

22 referred to pertained to the X-ray of 1992, which is much more clear and

23 can be more easily used to determine things than the one from 2001. Now,

24 as we speak of the X-ray from 1992, the values for the lowest point differ

25 in a very small degree, some three to four millimetres, so this cannot be

1 constituted as significant, but in the X-ray of 2001, using the same view,

2 Dr. Vucetic found that this spot was at some four centimetres, which

3 cannot be really viewed clearly but is interpreted as the final point of

4 the fracture healing. Dr. Vucetic's measurement was 5.5 centimetres. And

5 this has been explained in this table that you perhaps have in front of

6 you, and all of the differences in various measurements have been entered

7 into this table, so I would like to hear your comment regarding this.

8 A. He has provided me with some diagrams to show where he may have

9 measured to, although I'm just a little confused because the diagram is of

10 a right leg but we are examining a left leg. I guess I could just invert

11 the image. Having said that, he labels four points, some of which relate

12 to the overlap of bone, but it's not clear to me which of the four points

13 he's used for his measurements, although he's labelled them and signified

14 that they exist. I can't at this moment see where he's chosen to measure

15 them because he's given figures but doesn't say which of the points he

16 actually used for his measurements. So I'm a little confused as to

17 exactly where he took the measurements from. But I suspect that that's

18 one of the explanations for his different values that he has taken, and as

19 I explained to you earlier in the morning, it's the bottom part of the

20 bone that's attached to the ankle and therefore not going to move that I

21 believe should be used. And I think the other experts have come up with

22 similar figures to mine also believe should be used, and I have a feeling

23 that he may have used measurements from the fixed distal point, which I've

24 already indicated, to the bottom end of the fracture in the top part of

25 the bone, which, as I also explained, is overlapped and therefore the

1 distances are different, and therefore I would suspect that in fact

2 represents erroneous methodology.

3 Q. When we talk about the upper point of the tibia fracture, the

4 point where it has healed in the X-ray from 2001, according to you, it was

5 determined to be 20, and Dr. Bollen determined it to be 20.3 centimetres.

6 You can see in front of you the opinion of Dr. Vucetic, which states that

7 the point that you took to be the upper point of the fracture is in fact a

8 trace of a healed fracture, and that according to him, fracture can be

9 seen in the part -- in the middle part, in the central part of the bone,

10 and the cortex of the bone shows thickening of the newly created bone,

11 which took place when the bone healed, and this is linked to the cortex at

12 a distance of a few centimetres from the fracture. He proceeds to explain

13 - and you can see that on page 3 of the opinion which is in front of you

14 - that this thickening and the callus is especially manifested in the

15 fractures which were treated in the way that Mr. Vasiljevic's fracture was

16 treated, by immobilisation and various -- and tractions. And because of

17 that, Dr. Vucetic believes that this point that you determined to be 20

18 centimetres is a trace of a healed fracture, and that that point, which

19 can be seen radiographically as a change in the bone cortex, is not the

20 trace of the fracture line. He believes the fracture line to be lower and

21 to be readily visible on the X-ray. He believes that it is at 16.5

22 centimetres from the lower point of tibia. Can you comment on this

23 assertion of Dr. Vucetic expressed in the supplemental report as well as

24 yesterday in the courtroom?

25 A. Yes. I mean, I think I can take some comfort that Dr. De Grave,

1 Dr. Bollen and I come to virtually identical conclusions and identical

2 figures. I don't really think it's for me to explain why the last

3 gentleman in this list has come to a completely different figure. I don't

4 really understand how he's come to that. An explanation of callus around

5 the fracture site extending - he would then have to say by three and a

6 half to four centimetres - in a fracture of this type is really an

7 untenable argument.

8 Q. Since you are talking about measurements, it is true that in this

9 table, we can see that Dr. De Grave's and Dr. Bollen's measurements are

10 the same. I would just like to remind you that Dr. De Grave in fact used

11 the expert opinion of Dr. Bollen. We know that Dr. De Grave is not a

12 radiologist, so he accepted somebody else's measurements. It is also true

13 that the differences between all of you are small. However, the

14 explanation of Dr. Vucetic that I just read concerning the thickening of

15 the bone wall and what you see at 20 centimetres is only the healing of

16 the fracture and not the beginning of the fracture line is basically the

17 substance of the differences in your opinion.

18 A. Well, that is the substance, and I think that measurement made on

19 that basis is wrong. I believe that the line we can see, that the bump in

20 the cortex represents where the fracture ends or very, very close to it,

21 certainly nothing like four centimetres short of it.

22 Q. No, it is not four centimetres. You yourself have said that there

23 can be variations of one to two centimetres. And here, if we were to

24 accept the upper point used by Dr. Vucetic, the variation would be three

25 and a half centimetres. But it can definitely not be the upper point used

1 by you and measured by you to be 20 centimetres, and this is where the

2 difference lies.

3 I would like for you to look at the table in front of you, and

4 when we are discussing the frontal X-ray of tibia dating from 1992, the

5 lower fracture line of tibia -- the lower fracture point of tibia is,

6 according to Dr. Bollen, five centimetres. Dr. De Grave didn't discuss

7 this. And you believe this to be eight centimetres, which you will

8 certainly admit is a significant difference.

9 Is this difference caused by measuring different points or is

10 there another explanation to it? Could you please explain?

11 A. I think I mentioned earlier I think what's probably happening here

12 is that they're measuring the part of bone sticking down furtherest of the

13 top part of the fracture whereas I confined myself to the fixed bottom

14 part of the fracture.

15 Q. The X-ray from 2001, the frontal view of it, the lower point of

16 the fracture is measured by Dr. Bollen as being three centimetres and 3.9

17 centimetres in the profile view. Do you think it is contradictory because

18 these two projections should be showing the same image?

19 A. No. As I explained earlier, when you look from side on, you're

20 not seeing the same point of the fracture as when you're looking front

21 on. It's spiralling around the bone. And if the two measurements were

22 the same, that would actually be quite unusual. So the difference in

23 measurements is exactly what one would expect.

24 Q. As far as your measurement of that same point is concerned, and

25 now we're talking about the X-ray from 2001, does this apply or the

1 difference is even greater? In the front view, you measured it to be

2 three centimetres, and in the lateral view four centimetres. So there is

3 a one centimetre of difference. And could we say that it is difficult to

4 determine the fracture line of a fracture after nine years have passed?

5 A. I don't think the differences are significant. I think that

6 demonstrates where the fracture line is with reasonable accuracy.

7 Q. Your measurement of the upper point of the fracture line in the

8 frontal view of an X-ray from 1992, you measure it to be 9 centimetres and

9 14.5 centimetres for the same point in the lateral view. And when we

10 compare these measurements, there should be the same point used in both

11 frontal and lateral view of the X-ray from 2001. Dr. Vucetic finds

12 completely different values for the upper point of the fracture. In the

13 frontal view, it is 11.5 centimetres, and 20 centimetres in the lateral

14 view. He believes this to be impossible. Can you comment on this as

15 well, please?

16 A. I think it's the same explanation as I've given you. It's a

17 separate view of a spiral fracture, and if the two were the same, it would

18 be unusual. We would expect them to be different.

19 Q. Don't you believe -- don't you think that these differences are

20 far too significant, great?

21 A. No.

22 Q. In the supplemental report on page 6, there is a comment of

23 Dr. Vucetic, and he uses three points. I will read this to you, and I

24 will ask you to comment on this. He believes that you are not using the

25 same points in your measurements and that the points should be the same in

1 frontal and lateral view both in 1992 and 2001 X-rays.

2 A. Sorry, can you just say that again? The points on the 1992 and

3 2001 should be the same. Is that what you're saying?

4 Q. No, not myself. Dr. Vucetic is saying that, yes, that in order to

5 determine the same points, it should be -- they should be the same, that

6 you are not measuring the same points in frontal and lateral view and that

7 the lateral view is done in the event of fractures in order to determine

8 the same points and that this is the only way to identify them in

9 different views.

10 A. Well, the whole point of doing two views is to identify different

11 points, not the same point. If you only had to see the same point, then

12 you wouldn't need to take two views. The second view is to determine the

13 configuration of the fracture which will not be visible on one view. So

14 that if you were to take one view here, you would be very erroneous in

15 fully appreciating the extent of this fracture. So that when you take a

16 side-on view after the frontal view, you get some separate measurements

17 which actually clarify the extent, the size of the fracture, the length of

18 the spiral, et cetera, et cetera.

19 Q. Yes, but in this case, this is a fixed point from which you

20 start. Dr. Vucetic also finds that the lower point of the fracture on the

21 1992 X-ray was fixed in both views at the same level of eight centimetres,

22 so please correct me if I'm wrong. And that in both views you measured

23 the same points. But that is not the case with the other measured points

24 on the 1992 X-ray and the 2001 X-ray.

25 A. It just so happens that on one of these measurements the

1 appearance or the site of the fracture on the side view and the frontal

2 view coincide. That's actually quite unusual. We would not expect them,

3 in the majority of cases, to do so. So the one that actually has the same

4 measurement is not to do with the same point, because the lateral view is

5 giving you a separate view and the side-on view is giving you a separate

6 view to the front view, and you would not expect to be measuring the same

7 point. You're seeing the fracture from a different perspective. So you

8 will have different points to measure to from your fixed reference point.

9 Q. Regarding the fracture line, a spiral fracture - and this is not

10 in dispute - in what way did you determine the angle, in view of the fact

11 that a spiral fracture takes the form of a letter "S", so to speak, so

12 that there are different angles?

13 A. That's absolutely correct. So if you were to attempt to take,

14 say, ten radiographs around the leg at various angles, you would see a

15 different angle for the fracture at every site. We take two, by

16 convention, because that generally suffices to give us the information

17 that we need. So you can determine the angle as it appears, which may not

18 be exactly as it is, as it appears on the front view, and you can take and

19 measure an angle as it appears on the lateral view, the side view. It's

20 not -- the angle in terms of treating the patient that we perceive there

21 is not -- is not particularly crucial. So it's not important that we

22 determine the minutiae of the angle of the spiral to determine the

23 treatment of the patient.

24 JUDGE HUNT: I think, Doctor, what Mr. Domazet is seeking to put

25 from Dr. Vucetic's evidence is it may not be important for the purposes of

1 treatment, but for the purposes of comparison, when one party is saying it

2 is the same person and the other is saying it cannot possibly be the same

3 person, it has some relevance, does it not? That's, as I understand it,

4 what is being put to you.

5 THE WITNESS: Yes. And I think we've previously, I hope, shown

6 where I've drawn the angles from, how I've determined where the fracture

7 sites were and shown the comparison between the two and shown that they're

8 really quite different.

9 MR. DOMAZET: [Interpretation]

10 Q. On the last page of the report that you have before you,

11 Dr. Vucetic indicated six of his conclusions in summary form. This is on

12 the last page. So would you be kind enough to look at them and comment on

13 them? Because after all, they are conclusions of an expert witness whose

14 testimony you are rebutting today. And if you could tell us which of

15 these points you may agree with and which you disagree with, and if you

16 disagree with them, why you disagree with them?

17 A. Okay. Point 1, he states it's not possible to establish the

18 previous appearance of a healed fracture based on a radiograph taken nine

19 years following healing. I would disagree. I think it is possible. I

20 think I've shown that to be the case. We can see the legacy of the

21 fracture. We can see where the callus formation has been and the

22 remodelling has occurred. We can see the extent of the fracture. The

23 fact that it's nine years is no more important than if it was nine

24 months. In that intervening period, it would have changed very little

25 since, and in ten years from now, it will have changed very little since.

1 So that period of time is not particularly important.

2 Point 2 --

3 Q. [In English] One moment, doctor, please. [Interpretation] Point

4 1, you said it was not possible. Dr. Vucetic said it was not possible in

5 detail. He didn't say that it was not possible at all but simply that it

6 was not possible to establish in detail. After all, that's not quite the

7 same, is it?

8 A. I think we can establish to within a few millimetres, if not more

9 than a centimetre, where the original fracture lay.

10 Q. Very well. I was just pointing out that Dr. Vucetic didn't say

11 that it was not possible to establish but that it was not possible to

12 establish in detail. So that's fine now, and I apologise for interrupting

13 you. Please continue.

14 A. Point 2, he states that determination of the upper and lower

15 fracture points is varying in individual measurements in each expert, in

16 both the AP, which is the frontal, front-on, and the lateral, which is the

17 side-view, radiographs in 1992 and 2001. I think we've discussed this and

18 shown that there are various points one could take to measure. I've

19 explained why I've chosen mine. They accord with certainly one if not two

20 of the other experts, and disagree with one. And I think I've explained

21 why those discrepancies may occur, namely the overlapping and shortening

22 of bone and using the upper portion as a measurement site, which, in my

23 opinion, is erroneous. So I think that's an explanation for point 2.

24 Q. Do you have any comments to make regarding the other points of

25 these conclusions?

1 A. Point 3, he says that the values measured are significantly

2 different. I think we've looked at several of the measurements and found

3 that they are remarkably similar. There are one or two that differ and

4 I've explained, partly on the basis of the previous answer, why they may

5 differ.

6 Q. That probably also applies to point 4. Could you please comment

7 on point 5 as well?

8 A. He says that it is possible by traction to correct the bone length

9 shortening at the fracture site, which can result in an enlarged distance

10 measured between the limiting points of the fracture line from the upper

11 to the lower part of the bone. Well, that actually doesn't make any sense

12 whatsoever because the whole purpose of traction is to replace the two

13 ends of bone together, like a jigsaw puzzle, back to where they should

14 originally be, and as I have measured the fixed portion of the bone which

15 doesn't move in this process, if the top part is replaced on the bottom

16 part, then that traction process should not affect any of the measurements

17 that I have made whatsoever.

18 Q. Finally, Doctor, since I received your detailed CV a moment ago,

19 but it can clearly be seen that you're an expert radiologist, my question

20 is: In your practice so far, how frequently have you encountered

21 orthopaedic patients?

22 A. Probably 50 or 60 patients per day.

23 Q. I beg your pardon. In view of this number, I must ask you, then,

24 how many patients you have daily as a whole.

25 A. I'll clarify the word "patients." Remember, as a radiologist, I

1 don't generally see patients. I see the X-rays or the scans of various

2 types of patients. Between 9.00 and 11.00 on every weekday, I will report

3 fractures of bones in approximately 30 to 40 patients. Throughout the

4 rest of the working day, I will then report on various types of scans

5 using various types of radiological equipment on a further 20 to 30.

6 Q. So what you are telling us is really viewing the X-rays of those

7 patients; is that right?

8 A. That's correct.

9 Q. But in your practice, have you had occasion to actually directly

10 follow the treatment of trauma patients with fractured bones? Have you

11 participated in that treatment in any way at any orthopaedic clinic?

12 A. No. It is not the role of radiologists to do that. No

13 radiologist in the world does that. We do follow the radiographs and are

14 consulted by our orthopaedic surgeons to discuss with them the findings on

15 the radiographs, but we rarely see the patients. It's not our role.

16 MR. DOMAZET: [Interpretation] Thank you, doctor. I have no

17 further questions.

18 JUDGE HUNT: Mr. Groome?

19 Re-examined by Mr. Groome:

20 Q. Doctor, before the break, Mr. Domazet made some reference to two

21 different views of a leg that Dr. Vucetic brought with him, which were

22 never put into evidence. My question to you: Is it standard practice --

23 I think it may already be clear, but is it standard practice to always

24 take two views of any fracture?

25 A. Yes. It's absolutely standard practice.

1 Q. In the 1992 X-rays that you have, that you examined, did you have

2 two views in that case?

3 A. Yes.

4 Q. In the 2001 X-rays, did you have two views in that case?

5 A. Yes.

6 Q. In the 1992 X-rays, did they conform to the standard protocol for

7 how X-rays were taken -- should be taken?

8 A. Yes.

9 Q. And in 2001?

10 A. Yes.

11 Q. Now, Mr. Domazet asked you that in the example that Dr. Vucetic

12 talked about, there was a fracture of the fibula apparent in one but not

13 in the other. And he -- and your answer was, in general, it is possible,

14 but not in this case. Would you please elucidate on that answer?

15 A. Well, the question he asked was is it possible and/or likely that

16 as the example that was apparently shown that you may see no fracture on

17 one radiograph, but if you look carefully at the second one, then you do

18 see the fracture, and yes, that's one of the reasons why we take two

19 X-rays at right angles to one another. But I had both X-rays, and there

20 is no fracture on either of them. So in this case, that comment or

21 question doesn't really apply.

22 MR. GROOME: Thank you, no further questions.

23 Questioned by the Court:

24 JUDGE HUNT: Doctor, I wonder if you could just clear something up

25 for me? I'm not sure that I fully followed what you had said. You told

1 us, as I recall, that the fracture is likely to have healed after about

2 six months. Now, is there -- is it possible for there to be a refracture,

3 rather than a fresh fracture, as long as about 12 months after the

4 original fracture?

5 A. Well, yes. If the patient sustains another injury, they could

6 refracture through the original fracture site, yes.

7 JUDGE HUNT: So the fact that it's healed doesn't prevent it from

8 refracturing? It remains vulnerable to an identical fracture?

9 A. Potentially, yes. It's unusual but it is possible.

10 JUDGE HUNT: And if there is a new incident which places pressure

11 upon where the old fracture was, is it likely to fracture in the same

12 pattern, in the same attitude, et cetera, because of a weakness in the

13 bone?

14 A. If a fracture was to occur at the original fracture site, it would

15 follow the original fracture. I think I tried to say earlier on, if you

16 sustain a second injury, either that will occur or you would get a second

17 fracture at some distance away from the original fracture. What will not

18 occur is what is being suggested here, is that you would have a second

19 fracture close to but not following the original pattern of the first

20 fracture.

21 JUDGE HUNT: And you said, as I recall, that you can see only one

22 fracture on the X-rays?

23 A. That's correct.

24 JUDGE HUNT: The original -- any of these X-rays?

25 A. That's correct.

1 JUDGE HUNT: And that means that either there was no second

2 injury, or if there was, it was a pure refracture of the original injury?

3 A. That's correct.

4 JUDGE HUNT: What is the prospects of that happening, say, 12

5 months after the event?

6 A. The chances are small.

7 JUDGE HUNT: Do you want to ask any questions about that,

8 Mr. Domazet?

9 MR. DOMAZET: [Interpretation] No, Your Honour. It's better not, I

10 think, for me to ask any more questions.

11 JUDGE HUNT: Mr. Groome?

12 MR. GROOME: No, Your Honour.

13 JUDGE HUNT: Thank you, Doctor, very much for coming along to give

14 evidence and the evidence you've given, and you are now free to leave.

15 [The witness withdrew]

16 JUDGE HUNT: Mr. Groome, you say we're going to have some process

17 by which these PowerPoint demonstrations are preserved?

18 MR. GROOME: Yes, Your Honour. Once the doctor has an opportunity

19 to take his equipment out, we will bring him down to our computer lab,

20 where he will print out or get us some kind of copy of everything we've

21 seen today.

22 JUDGE HUNT: Right.

23 MR. GROOME: And the next expert has to set up his equipment,

24 which also includes some kind of audiolink so that we can hear the

25 speech. This took about 15 minutes to set up this morning. I would

1 anticipate with the audiolink at least 20 minutes to set up.

2 JUDGE HUNT: First of all, this has to be dismantled --

3 MR. GROOME: Yes.

4 JUDGE HUNT: -- and then the next one has to be put in.

5 MR. GROOME: Yes.

6 JUDGE HUNT: So how long do you think? It's not worth waiting

7 around to start before lunch.

8 MR. GROOME: That would be my suggestion, Your Honour, we start

9 first thing this afternoon with the Professor. I don't believe he's going

10 to be very long.

11 JUDGE HUNT: Right. Is he the only other witness we've got

12 today?

13 MR. GROOME: Yes, Your Honour.

14 JUDGE HUNT: All right. May I ask, Mr. Domazet, bearing in mind

15 the leave we've granted for you to call evidence, to reopen your case as

16 well, have you been able to make any arrangements for the witnesses to be

17 given visas, et cetera, bearing in mind the troubles we've had before?

18 MR. DOMAZET: [Interpretation] As far as I have been informed by

19 the Witness and Victims Unit, there will be no problems with the visa and

20 his travel, but as we said before, there was no need for this witness to

21 come in view of the fact that you, too, were of the opinion that this

22 witness should not be recalled. If necessary, the Witness and Victims

23 Unit can organise his travel, and they said they could do that already on

24 Saturday.

25 JUDGE HUNT: I don't know whether we're talking about the same

1 witness. If you remember, when Mr. Groome sought to call Witness VG117 in

2 reply and we indicated fairly clearly that we didn't think it was an

3 appropriate matter in reply after you had objected to it, there was then

4 some discussion about having the Prosecution case reopened, and you said

5 that you had witnesses that you would have called from the school to

6 demonstrate that the person there who was purporting to be from the Red

7 Cross was somebody, not the accused, but who resembled him. Now, I'm

8 worried about you calling that witness or those witnesses.

9 Have you been able to talk to the Victims and Witnesses Section

10 about them?

11 MR. DOMAZET: [Interpretation] Yes, Your Honour. I had someone

12 else in mind. I was thinking of the other person that we agreed should

13 not come to testify.

14 As for this witness, let me tell you that talking to

15 Mr. Vasiljevic now, discovered that there was a person but whose name we

16 don't really know. We just know the name of a relative. And now we would

17 have to look for that person. We still have to establish the identity of

18 that person, because that really was not part of my case in the pre-trial

19 brief, because the event in the Vuk Karadzic School and the women brought

20 from Velika Gostulja on the 22nd of June were events that were not

21 considered at all. And in fact, this morning I heard that the Prosecution

22 had that evidence at the time but didn't want to use it. They didn't want

23 to call that witness.

24 I have never received the statement of VG117 in the disclosure

25 process, and even now we don't really have a statement. So I was really

1 not in a position to verify any of that. I will do my best to react very

2 quickly, but I fear that the position I am in gives me very little time.

3 I will do my best to do something during the weekend, but to be quite

4 frank, it will be extremely difficult, especially as I still don't have

5 the statement of that lady, nor her testimony.

6 So as for the people who were working there, if that was the Red

7 Cross at all that was listing the people in that school, because this was

8 something I did not investigate at all.

9 JUDGE HUNT: I understand the difficulties that you will have, and

10 we'll certainly allow you to do what is necessary to follow it up.

11 I'm a little worried when you say you heard this morning that the

12 Prosecution had the evidence but had decided not to use it, because that

13 is exactly what was said yesterday by Mr. Groome, and we asked him to

14 explain why he hadn't called this witness in his case in chief. It's not

15 something we found out anyway other than what we've been told in court.

16 But I have been shown a document which is a little bit more extensive than

17 was in that list of witnesses.

18 Have you given that to Mr. Domazet, Mr. Groome?

19 MR. GROOME: Your Honour, there was no statement taken in this

20 case. There were some investigator's notes. They were provided to

21 Mr. Domazet on Wednesday regarding --

22 JUDGE HUNT: That, I think, is the document we have, about a

23 three-page document.

24 MR. GROOME: Yes, Your Honour.

25 JUDGE HUNT: Yes. You have nothing better than that?

1 MR. GROOME: No, Your Honour.

2 JUDGE HUNT: No. But it's perhaps not the best, but it certainly

3 does demonstrate the nature of the evidence she can give. But I do

4 emphasise what I said this morning. She's not going to be allowed to give

5 evidence about other matters than the one very limited issue upon which

6 you've been given leave to reopen your case. And it really is a simple,

7 straightforward matter once you look at it from that point of view. She

8 saw somebody she says was the accused and that he said that he was from

9 the Red Cross and that was going to help them in some way in being

10 relocated. That's so, is it not?

11 MR. GROOME: Yes, Your Honour. That would be the entire substance

12 of her testimony.

13 JUDGE HUNT: Yes. Well, Mr. Domazet, we will understand if you

14 can't produce somebody next week about it, but I don't want this to go on

15 too long. As you can see, there's a very real problem about running two

16 trials in tandem with two judges sitting something like nine or ten hours

17 a day. So I want to get everything that we can get done by the end of

18 next week before the end of next week.

19 It clearly will not be the addresses, you will be very grateful to

20 hear because you will not have to spend this weekend preparing an address,

21 but nevertheless, anything to do with evidence I would expect to be given

22 as soon as possible, hopefully next week. But if you can't, then that's

23 too bad. We've just got to allow you the time.

24 Is there something you want to add, Mr. Groome?

25 MR. GROOME: Not on this matter, Your Honour, but on another one.

1 JUDGE HUNT: Is there anything else you want to put, Mr. Domazet?

2 MR. DOMAZET: [Interpretation] As I said, I will try and see what I

3 can do, because it is in the interest of the Defence to produce such

4 evidence if accessible.

5 As for the closing address, I am appreciative of all the problems

6 the Chamber has, but I would request, even if we do complete the case by

7 the end of next week, that we are given sufficient time for our written

8 submissions, because the preparation of the closing address itself will

9 take one day or less than one day, as far as I have been able to gather

10 from Mr. Groome. So could that day be fixed at a later date, when the

11 other members of the Trial Chamber would be free. So we would come just

12 for that closing address. And so that would give me time to prepare my

13 closing address at home in my own office, where I have much better

14 facilities than I do here.

15 JUDGE HUNT: I have already accepted that you won't be able to

16 give us an address by the end of next week, and certainly now that we are

17 going to have a break, it would be preferable that your written final

18 brief was complete rather than having to add to it as we had originally

19 suggested in relation to the evidence given this year.

20 We also understand, or at least certainly as an old advocate I can

21 understand that the case has swivelled in many ways, even over the last two

22 days, that you will have to treat with some care in your final addresses,

23 and for that reason alone it would be better to have everything we can

24 from you in writing.

25 What -- if we can finish the evidence, except perhaps for this one

1 witness of yours, and provided that your cross-examination of the

2 Prosecution witness doesn't open up a Pandora's box, the best thing to do

3 would be to fix a date a few weeks down the line to enable this other

4 trial to get well under way and then we could perhaps have each of you on

5 separate days so it's not a full four-hour, four-and-a-half-hour day.

6 That would break it up for the Judges who have to sit on two trials at

7 once. But we worry about the particular time that you need for your final

8 addresses when we know when the evidence is going to finish. So I don't

9 think there's any point in trying to fix that now, but you may be assured

10 that you will be given the opportunity to put in final written briefs

11 after the evidence has finished.

12 MR. DOMAZET: Yes, Your Honour.

13 JUDGE HUNT: All right. Thank you.

14 Now, Mr. Groome. You had some other matter.

15 MR. GROOME: This is a matter I meant to raise on Wednesday. I

16 just keep forgetting it. Over the Christmas break, the Prosecution had

17 D26 examined by forensic experts.

18 JUDGE HUNT: What is that?

19 MR. GROOME: D26. It's the ledger from Visegrad hospital covering

20 the time period that includes the 14th of June.

21 JUDGE HUNT: Yes.

22 MR. GROOME: We have the results of that. I want to -- I've made

23 Mr. Domazet aware of the results. It's perhaps something that we can put

24 into evidence in agreement. They have found no evidence of forgery or

25 alteration of the document other than what we ourselves could see, the

1 changing of the name of Lukic to some other name. But they have found no

2 other evidence of forgery.

3 JUDGE HUNT: Is that only for the 14th of June? You see, if your

4 case is going to be that the accused was taken -- I've forgotten the date

5 now. The 22nd, I think it was, before St. Vitus Day.

6 MR. GROOME: That was the 27th or the 28th.

7 JUDGE HUNT: The 28th, yes. Has there been any examination of

8 this register around those days to see whether he could have been admitted

9 on that day and there's been an alteration of that part of the register?

10 MR. GROOME: They have looked at a number of pages, if the Court

11 likes. I have not seen the report. It's being put through the Evidence

12 Unit. I can -- we will be filing the report. Whatever the report says,

13 we can either enter the report or I'll agree --

14 JUDGE HUNT: No. I don't you to tell me the results, but I'm just

15 curious to know whether there has been any examination of the hospital

16 registers, admission registers, for example, at the time when your case

17 may be that he was in fact admitted, if this tape has legs.

18 MR. GROOME: The main ledgers from Uzice hospital were already

19 examined. Nothing was found.

20 JUDGE HUNT: Even for those dates.

21 MR. GROOME: Even for those days.

22 JUDGE HUNT: I thought you had said that, but I just wanted to

23 make that clear.

24 MR. GROOME: I should correct myself, Your Honour. At that time

25 they looked through the entire book and found nothing. So that would

1 include those days. His name does not appear on the 27th.

2 JUDGE HUNT: But there is no interference with the records --

3 MR. GROOME: Not that they can --

4 JUDGE HUNT: -- at around the 28th or whatever date it was.

5 MR. GROOME: No, Your Honour.

6 JUDGE HUNT: All right. Now, the Visegrad hospital, is that the

7 one that you're having looked at at the moment?

8 MR. GROOME: It was looked at. We now have the result and that's

9 what I'm informing the Court about now.

10 JUDGE HUNT: Right. Well, when that's ready, you bring it along.

11 We'll be here.

12 MR. GROOME: And one other matter. For this afternoon's

13 testimony, I believe that if we assign the Defence witness whose voice we

14 will be talking about today, I believe if we assign him a pseudonym, we

15 can conduct all of the proceedings in open court. So if everybody is in

16 agreement with that, perhaps we could assign him a pseudonym, and I will

17 draft up the pseudonym sheet over the break.

18 JUDGE HUNT: Very well, then. Now, there's just one other matter

19 which I should have dealt with before -- I'm sorry. Have you finished?

20 MR. GROOME: If I just know what pseudonym number we will assign

21 him, I'll --

22 JUDGE HUNT: You're the one who has the numbers. It was 117 this

23 morning, so it must be 118.

24 MR. GROOME: No. It's a Defence witness. Perhaps it would be

25 better to give him a Defence number.

1 JUDGE HUNT: I'm sorry. Are you going to seek protective measures

2 for this witness, Mr. Domazet?

3 MR. DOMAZET: [Interpretation] Yes, Your Honour. In order not to

4 err, since I don't have other information available to me now, I think

5 that we had a Witness D101, so this one could be D102.

6 JUDGE HUNT: My last VGD number is 4. I don't know where 101

7 comes from.

8 MR. DOMAZET: [Interpretation] Yes. I think that on one occasion

9 we did, but, all right, if it was VGD4 then this one could be VGD5, if

10 it's easier.

11 JUDGE HUNT: Just in case there's an error there, we should give

12 it some leeway.

13 MR. GROOME: Your Honour, there was, remember, Defence

14 Exhibit 22.1. That's where we had some pseudonyms, and that went up until

15 VGD21.

16 JUDGE HUNT: Oh, I'm sorry. Yes. I used to have that next to my

17 list of exhibits.

18 Let's make this one 30 so there can be no problem about it.

19 VGD30.

20 Have we finished?

21 MR. GROOME: Yes, Your Honour. Thank you.

22 JUDGE HUNT: Now, this report from Dr. Henri Bakker, the doctor

23 from Gouda, that was marked as Exhibit D41, and that is the one which

24 should now be withdrawn because Mr. Domazet does not wish to call him. It

25 was also an annex to Dr. Vucetic's original report, which was Exhibit D38,

1 so that we will just simply have marked on that annex that it is not in

2 evidence. And if you ever any problems with that, let me know after

3 you've had a look at your own documents.

4 But there was a report -- one of the reports from Dr. Vucetic we

5 don't seem to have actually as an exhibit. Perhaps the court deputy can

6 speak to counsel about it as we adjourn and see if we can get a copy so

7 that it can be the exhibit.

8 We will resume -- I think, if that witness is only going to be a

9 short time, we will resume at 2.30. Thank you.

10 --- Luncheon recess taken at 12.34 p.m.

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1 --- On resuming at 2.35 p.m.

2 JUDGE HUNT: Have we got the witness? Yes, Mr. Domazet.

3 MR. DOMAZET: [Interpretation] Your Honour --

4 JUDGE HUNT: I was just reading what I think you're going to tell

5 me about. This is from the observatory.

6 MR. DOMAZET: Yes.

7 JUDGE HUNT: All right. Thank you very much for that. We're up

8 to Exhibit number 44. Do you have any objection to it, Ms. Bauer?

9 MS. BAUER: No, we don't have any objections, Your Honour.

10 JUDGE HUNT: Thank you very much. Well, the letter from the

11 observatory at Belgrade, dated the 9th of January, will be Exhibit D44.

12 And the -- I'm sorry. Yes, D44. And the English translation will be

13 Exhibit D44.1.

14 MR. DOMAZET: [Interpretation] Your Honour.

15 JUDGE HUNT: Yes.

16 MR. DOMAZET: [Interpretation] I have also received a translation

17 of Rules 154 and 300 -- 151 and 154 of the Penal Code of Republika Srpska.

18 JUDGE HUNT: Thank you, Mr. Domazet. We'll deal with it in a

19 moment.

20 [The witness entered court]

21 JUDGE HUNT: Sir, would you please take the solemn declaration set

22 out on the card the court usher is showing you.

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

24 whole truth, and nothing but the truth.

25 JUDGE HUNT: Sit down, please, sir.

1 WITNESS: TON BROEDERS

2 THE WITNESS: Thank you.

3 JUDGE HUNT: Yes, Ms. Bauer.

4 Examined by Ms. Bauer:

5 Q. Mr. Broeders, good afternoon.

6 A. Good afternoon.

7 Q. Could you please explain to us shortly your professional

8 background in forensic speech and audio analysis --

9 JUDGE HUNT: Name and address would be -- at least the name might

10 help. His name first.

11 THE WITNESS: My name is Ton Broeders. I've been working for the

12 Dutch Forensic Science Institute since 1988, and I've worked in the field

13 of speech and audio analysis since I joined. In fact, I set up the

14 speaker identification and audio analysis facility in that forensic

15 institute in the Netherlands, and I've been court-appointed expert on

16 permanent oath with the Dutch courts since, I think, 1991. I don't

17 exactly remember the date.

18 I've been involved in case work ever since I joined the institute

19 in 1988 virtually, and I've -- in the course of these years, I've joined

20 and also been a founding member of an organisation which is active in this

21 area. The organisation is called the International Association for

22 Forensic Phonetics. I'm presently a member of the Executive Board of this

23 organisation. And I also have a function in an expert working group of

24 NC. NC is the European network of forensic science institutes. It has

25 expert working groups for virtually all forensic disciplines, and I'm

1 chairing the expert working group on forensic speech and audio analysis.

2 MS. BAUER:

3 Q. Mr. Broeders, last August did you receive from the OTP a

4 minicassette and a normal cassette in your laboratory?

5 A. Yes, I did. And if I may refer to the report that I sent to the

6 Tribunal on October the 9th, I think I have made reference to those

7 materials.

8 MS. BAUER: At this point in time, Your Honour, I would like to

9 tender the report of Mr. Broeders as P113, and his curriculum vitae as

10 Exhibit P112.

11 JUDGE HUNT: Any objection, Mr. Domazet?

12 MR. DOMAZET: No, Your Honour.

13 JUDGE HUNT: Thank you. That will be Exhibits P112. I've already

14 got a 113. I don't know what it is, but it's been crossed off my list.

15 MS. BAUER: Your Honour, we're going to double-check, but that was

16 the number I was given for the report.

17 JUDGE HUNT: The numbering system looks very interesting but

18 there's an awful lot missing. If we -- if we perhaps give it a number

19 later on, but the CV will be Exhibit P112 and you can proceed on the basis

20 that the report will be in evidence.

21 MS. BAUER: Thank you, Your Honour.

22 Q. Now, Mr. Broeders, what were the principal exercises you undertook

23 with these tapes?

24 A. Well, as I indicated in my report, I was originally first asked to

25 improve the intelligibility of the recording, to do an enhancement job so

1 to speak. Later, I was also asked to compare -- to compare the voice of a

2 male speaker in a particular part of this recording on the microcassette

3 with material -- with reference material of a known speaker, so that was

4 what I was asked to do at a later stage, and that is also when the

5 minicassettes which I refer to on page 2 of my report were submitted to

6 me. So that was in August, at the end of August, of last year.

7 Q. Thank you, Mr. Broeders.

8 MS. BAUER: Your Honour, I have here a pseudonym sheet in case it

9 becomes important to refer to names, that those names are not referred to,

10 and I would just hand it out to everybody.

11 JUDGE HUNT: Well, it will become an exhibit.

12 MS. BAUER: It's P93.

13 JUDGE HUNT: P93. That will be Exhibit P93, and is under seal.

14 MS. BAUER:

15 Q. So Mr. Broeders, in case you have to refer to the names, please

16 use the pseudonyms that are attributed to those two names.

17 Now, Mr. Broeders, what are the two methods you used to -- in

18 order to compare the voices or make a speech analysis?

19 A. What I did was I used the method that I normally use in this type

20 of examination, which, in fact, is also explained to some extent in the

21 appendix to the report which I've submitted. And the examination actually

22 consists of two parts. One part is basically an auditory analysis of the

23 material, and the second part is an acoustic analysis of the material. So

24 that is what I did.

25 What I think is special in this case is that as far as the

1 auditory analysis is concerned, an important element of the auditory

2 analysis would also be a linguistic and phonetic analysis of the

3 material. Because the material in question concerns a language that I'm

4 not expert of, or even that I even speak myself, in these cases what I

5 will tend to do, what I will always do, is to find somebody who is

6 suitably qualified to do a linguistic or phonetic analysis, and preferably

7 both, so that is what has happened in this case too. So those parts of

8 the analysis that I cannot perform myself because of this limitation in my

9 knowledge in the cases of languages that I am not familiar with, those

10 elements of the analysis have been done by somebody else. This is also

11 indicated in my report, and the specific findings of this native speaker

12 expert have also been set down on paper and are, I think, an enclosure of

13 the report.

14 JUDGE HUNT: I wonder, Ms. Bauer, whether we could have some

15 definition given to us of linguistic and phonetic analyses, because I have

16 a feeling that this witness may have a different view to the Defence

17 witnesses' views.

18 THE WITNESS: Yes, I would be happy to try and do that. A

19 linguistic analysis is one where essentially what you try to do is

20 describe in as much detail as possible the language variety which is

21 used. To refer to English as an example, because that is perhaps one that

22 some of us are familiar with, it is clear that one can distinguish various

23 varieties of English, which to some extent will be regionally marked but

24 they might also be socially marked. In other words, there are a number of

25 parameters in terms of which a language variety can be described. When it

1 comes to the pronunciation level of the variety, then we speak of a

2 phonetic analysis, so then we are going to be looking in depth, if you

3 like, in detail, at the accent, the style of pronunciation, the style of

4 speech that is used. So that is what would happen in a speaker

5 identification examination. An analysis would be made of the unknown

6 material and also an analysis would be made of the reference material, and

7 of course, in order for there to be support for identity, you would expect

8 those analyses to correspond to some extent. To the extent to which they

9 disagree would be an indication of non-identity, very briefly.

10 Q. Now, Mr. Broeders, after you did your acoustic analysis which you

11 were able to do on your own, what were the preliminary findings you had?

12 A. The preliminary findings were that what is important as part of

13 the preliminary findings is the quality of the materials that were

14 submitted. The questioned material is of poor quality in this sense, that

15 the speakers are removed considerably from the microphone, as a result of

16 which the sound quality or the recording quality of the speech is not very

17 good. In photographic terms, you could say that the resolution is not

18 very high, if that helps, that metaphor. So part of the initial, the

19 introductory, examination is always to assess the quality and the

20 suitability of the material for the examination. So that has also

21 happened here. So as I've already said, the questioned material is --

22 possibly it was recorded surreptitiously, I don't know, but anyway, it

23 sounds very much as though the speakers were quite removed -- some

24 distance removed from the microphone.

25 The reference material also had important limitations in that

1 although it was plentiful in terms of quantity, I mean there is a lot of

2 it in terms of duration, they were recorded in conditions with a lot of

3 reverberation, which in itself is not ideal but also it differs very

4 clearly from the questioned material. And the importance of the

5 seriousness of this difference in recording conditions can be illustrated

6 perhaps by telling you that there are automatic speaker identification

7 procedures, but these are very, very sensitive to differences in recording

8 conditions. Now, perhaps that helps to understand it also when you apply

9 method which depends heavily on auditory analysis, that differences in

10 recording conditions are also very, very awkward and can make it much more

11 difficult to make an examination than if the conditions are ideal or more

12 suited to the examination.

13 So that was also part of the initial conclusions, that the

14 material did not allow, in the positive sense anyway, a very strong

15 conclusion. Let me perhaps explain. It is sometimes easier to draw a

16 negative conclusion than it is to draw a positive conclusion. So you do

17 not always have to have hi-fi quality material in order to draw a negative

18 conclusion, a conclusion of non-identity.

19 Q. Let me ask you, was the -- but the quality of the questioned

20 material, was it good enough to make any comparison or was -- would you

21 have said it was -- is your conclusion that it was difficult to make an

22 analysis but it wasn't impossible?

23 A. It is definitely the latter, so it was difficult but it was not

24 impossible. If I'd felt it was impossible, my judgement would eventually

25 have been -- my conclusion would have been no judgement, because that is

1 also one of the ways in which an examination can be concluded.

2 So that is one of the first decisions you have to make, and that

3 is, you know, is the material -- does it lend itself to the examination at

4 all? And it does with the limitations that I've tried to explain.

5 Q. And the questioned material, what were sort of the conclusions at

6 first? Was it -- the questioned materials, was it one conversation? Was

7 it -- was there any evidence of -- that this particular sequence of the

8 conversation was altered in any way?

9 A. Well, what -- what happened, of course, was that initially I was

10 asked to concentrate on part of a recording on a particular side of a

11 microcassette, so to give you the full picture, as it were. So I did not

12 necessarily look in detail at the entire recordings of the entire

13 microcassette. There are two sides, and there are signals, there are

14 recordings on both sides. But the interest of the Prosecution clearly was

15 on a particular excerpt on side A, I think. So that is what I

16 concentrated on. I did look at the rest of the contents of the tape also

17 but not in as much detail as you would wish to do if you were going to do

18 a full-fledged integrity examination.

19 However, for the passage of interest, I did look in very

20 considerable detail to see if this contained any indications of any

21 discontinuities which may occur in a recording, and in fact, I did find

22 one discontinuity which obviously, you know, I tried to account for in a

23 sense that as the question was aiming at: Is there any evidence of

24 discontinuity? Is there any evidence of the tape having been

25 manipulated?

1 Well, an important point to make first perhaps is that when the

2 cassette came to my laboratory, the safety tab had not been removed. So

3 that means that if it was put into a tape recorder at any stage, it might

4 have been -- the recording might have been over-recorded, if you see what I

5 mean. So that is the first routine check that we do. So we remove the

6 safety tab so that we ourselves could not make an accidental

7 over-recording.

8 So that means that, theoretically anyway, it could easily have

9 become subject to over-recording, involuntary over-recording even. I'm not

10 saying it has been, I'm just saying that, you know, theoretically the

11 safety tab hadn't been removed which perhaps should have been done.

12 In the passage in question, I did find one discontinuity, and I

13 would happy to show it to the Court if I may. I don't know if that's --

14 JUDGE HUNT: Yes, by all means, but I wonder if you could just

15 explain, at least to me, when you say "discontinuity," is it simply a

16 break in the recording, that recording has been turned off and on again,

17 or is there some interference apparent in the tape itself?

18 THE WITNESS: Well, I'm using the term "discontinuity" advisedly,

19 I hope, in the sense that I wish to avoid implying any causes or implying,

20 you know, how it arose. So I'm taking a very sort -- I'm trying to take a

21 very careful, cautious position where I say I'm looking for

22 discontinuities. I'm not jumping to conclusions as to why they arose.

23 And that is always a separate issue anyway, I think personally, you know,

24 what the explanation for it is.

25 I can show you what I found and perhaps that will help clarify the

1 issue. I don't know if you can see this at all on your screens.

2 JUDGE HUNT: Is it on the computer or the video?

3 MS. BAUER: It is on computer. However I would like also, in

4 order that everybody can follow better, I mean, we can show it, but also

5 that Mr. Broeders is marking the English transcript where he detected this

6 slight interruption of the transcript of this recording, and it's

7 Exhibit 109.2.

8 JUDGE HUNT: That can be shown on the ELMO there.

9 THE WITNESS: I'm not --

10 MS. BAUER:

11 Q. Do you have a copy?

12 A. Yeah. I think so, yeah.

13 Q. Okay.

14 A. So there's a line between 15 and 16 in the text, and that is

15 exactly where the discontinuity occurs. So after the original text in

16 B/C/S where it says: "... she fell over him," and then just before the

17 question: "On 27th June," there is this discontinuity which I can show on

18 the screen, on the computer, and I can actually play this part of the

19 passage.

20 I can first point it out. If you can see my -- the arrow on your

21 screens, this is where it is, okay? And this is where the woman's voice,

22 the woman says, "27th June," and this is the answer, I think, by the male

23 voice.

24 Let's just go through this passage so that you can hear the right

25 passage, I hope.

1 [Audiotape played]

2 Okay. So this is the discontinuity. This is the question, and

3 this is the answer, I think. So once more.

4 [Audiotape played]

5 So that is the -- in the excerpts that I was asked to concentrate

6 on, this is the only discontinuity I have found. Now, I'd like to clarify

7 this a little bit, and that is that unfortunately, perhaps, in this day

8 and age, it is possible -- I'm not saying it has happened, far from it,

9 but it is possible to -- to enter a recording into a computer system and

10 to permutate it, to change it, to alter it, to edit it in such a way that

11 technically, technically it is not detectable if it's done properly and if

12 it's done competently.

13 So in other words, it is the fact that you do not find traces of

14 interference in a tape recording on a cassette or whatever doesn't

15 necessarily mean it hasn't taken place, unfortunately, because as I said,

16 in a computer system there is software, which is not even very expensive,

17 which can be -- which in fact I have on this laptop, that can be used to

18 cut and paste, in popular terms, in such a way that technically it's not

19 possible. So I have to make that reservation.

20 What we have here is in fact a -- is in fact a discontinuity which

21 I think personally I cannot fully account for. I cannot be sure it is not

22 what -- it is not what an over-recording would look like, and I would like

23 to show you what that looks like perhaps.

24 I hope I'm making myself clear when I use the term

25 "over-recording." The term "over-recording" I use to indicate that suppose

1 you have a recording which has a certain duration. If you put that

2 cassette into a recorder and you press the record button, then you make an

3 over-recording of an existing recording. That is not normally what you

4 want to do, obviously. That is what I call an over-recording, making a

5 recording on top of another recording.

6 If you do that, you will normally always leave a smoking-gun-type

7 signal, and I can show you that because it occurs -- I think it occurs

8 on -- at one stage on this recording. After seven minutes of this

9 recording, we have a brief passage where I think it occurs. I'm trying to

10 find the exact coordinates now.

11 Q. Mr. Broeders, just to clarify, if you say "recording," do you talk

12 about the recording as such, the whole tape, or do you speak about the

13 sequence we are concerned with --

14 A. I'm now --

15 Q. -- on my question --

16 A. I'm now -- I'm now outside the sequence that we are concerned

17 with. So the example I'm hoping to give is one which occurs in -- at

18 seven minutes from the beginning of the tape, and our sequence, if you

19 like, is at roughly 20 minutes after the beginning of the tape. But I'm

20 just mentioning it to illustrate, I hope, what I mean -- what a

21 recording -- over-recording looks like, and -- sorry. I'm just trying to

22 find the position. I have to have the list for that. I'm sorry. Got

23 it.

24 7:44 is the time. So here we have a passage which sounds like

25 this:

1 [Audiotape played]

2 And what this looks like to me is you have a similar discontinuity

3 that I was showing earlier, and this may have arisen because somebody was

4 listening to the tape and was accidentally briefly touching the record

5 button. In my experience, in those cases where I've done these types of

6 examinations, I've actually quite regularly come across recordings where,

7 for example, policemen, in listening to a recording, accidentally pressed

8 the record button and created an over-recording, you know, where that was

9 the explanation for that occurring.

10 So what is different from what I've just showed you in the

11 relevant excerpt is that here we have clearly this sequence of events, you

12 know, which is considerably longer. So it does not look like an

13 over-recording. That is the point that I'm trying to make.

14 I cannot fully account for it, but it doesn't look like an

15 over-recording.

16 Q. So, Mr. Broeders, if we go back to the transcript and look at the

17 transcript, the portion of the questioned material above this interruption

18 is completely -- is one sequence with no signs of any interference,

19 interruption, or alteration?

20 A. That's right. So the only place within the excerpt of interest,

21 if you like, is -- is the one that I've just mentioned. Before that there

22 is nothing. After that, also, there is nothing.

23 Q. Did you find a similar interruption at the rest of the tape, not

24 any more in the sequence but in the rest of the tape, as you found in this

25 particular portion?

1 A. Yes. There is one that I found at -- sorry, at 23 -- well, right

2 at the beginning of the tape, I also found one or two which look similar,

3 and I think these may be accounted for as false starts.

4 It's very often the case, if you get recordings that are made by

5 civilians, not professional recordings made by policemen or professional

6 recordings in the recording industry but recordings made by individuals,

7 private individuals, that the tapes tend to get a little bit messy because

8 they check first whether the recording works, et cetera, so it's -- that

9 is always difficult, or it may be very difficult to reconstruct exactly

10 what has happened. And in those very early stages of the tape, there are

11 one or two things that might point to recordings, beginnings of

12 recordings.

13 Q. Is there any other plausible explanation apart from that somebody

14 accidentally pressing an erase head or a recording button that you would

15 take into account that could have happened?

16 A. The problem with microcassette recorders - and there is every

17 reason to believe that this recording was made with a microcassette

18 recorder - is that they tend to be relatively cheap and also not

19 relatively high quality and they tend to -- they may malfunction. The

20 discontinuity may have arisen as a result of some sort of temporary hiccup

21 in the tape transport, but that is a speculation on my part. It is not

22 unusual for things to occur, events to occur, in this type of recording

23 equipment that one cannot immediately account for, precisely because the

24 equipment is relatively cheap. And it is also, for example, difficult to

25 reproduce switching transients which one uses to examine tapes, because

1 usually you rely on switching transients to be consistent and to be the

2 same whenever you make certain action, but on very cheap equipment, there

3 is not the consistency that you would ideally expect.

4 JUDGE HUNT: Can you tell us what you mean by that expression

5 "switching transients"?

6 THE WITNESS: A switching transient is an event that takes place

7 and that is visible and audible very often when, for example, a recording

8 stops. I can show you one because on this tape, you can see here, for

9 example, there is an interruption in the recording and there is one here.

10 Now, at the end of this recording, if I can zoom in, you can see, I hope,

11 a switching transient, if I zoom in a little bit more, and here you are.

12 So this is the recording and this is where it ends, and this may together

13 constitute a switching transient.

14 Perhaps a slightly better example is at 2534. That's a little bit

15 -- 2534, zoom out a little bit. Almost there. So this is a better

16 example, actually, of what I mean. So this is the end of the recording

17 and this is a typical -- this is what you typically expect to see when you

18 switch off and end the recording. This is -- there are two heads in a

19 tape recorder, a record head and an erase head, and what happens typically

20 is the tape first passes the erase head, the erase head erases the tape,

21 and then the tape that has been erased goes through the record head. Now,

22 what you see is when you switch off, when you stop the recording, both

23 these heads will leave a mark and those marks are visible on the tape, on

24 the recording. So those are switching transients. And what I'm saying is

25 that these are consistent in good quality equipment but in bad quality

1 equipment, unfortunately, they are not always consistent. They are not

2 always the same, in other words.

3 MS. BAUER:

4 Q. So doctor, from all the analyses you conducted, did you find any

5 obvious signs of alteration or possible intervention with this tape?

6 A. I found no signs, no indications of positive interference with the

7 tape, except the one at seven minutes that I mentioned and the one at 23

8 minutes in the excerpt of interest, which we have talked about, which I've

9 tried to say what I think about. So in other words, there are no

10 indications that the tape has been tampered with, but I have to make the

11 proviso that I made earlier, that it is theoretically always possible for

12 a tape to have been tampered with in such a way that technically there are

13 no traces left.

14 JUDGE HUNT: May I just ask you this? The blip that we had in the

15 passage of interest, as you call it, when I asked you whether that was

16 interfering with the tape or just interfering with the operation of the

17 tape, you said that you were being very careful to use non-judgemental

18 descriptions.

19 THE WITNESS: Yes.

20 JUDGE HUNT: If you had to find out which it was, what do you have

21 to do, and did you do it here and, if so, what result did you get?

22 THE WITNESS: Well, I think if -- what I'm trying to say is that

23 basically, a technical examination will only tell you in the best case, if

24 you're lucky, what has factually happened, whether there was any bona fide

25 or mala fide attitude on the part of whoever did it is difficult to say.

1 That is, a technical examination will not normally tell you that. And

2 what I would rather say is that if there is a -- some sort of technical

3 intervention in the tape, then I think it is also, for a non-technical

4 person, possible to determine what the likelihood is of this being a bona

5 fide or a mala fide action.

6 JUDGE HUNT: Are you able to say, for example, that it was the

7 original tape, that it hasn't been copied?

8 THE WITNESS: That is a very interesting and very difficult

9 question, because then we are going into the field of authenticity: Is

10 this the original tape? The only way really -- this question has come up

11 in this same Tribunal in an earlier case, that I'm aware of, perhaps even

12 more. The problem with that is that you need a claim -- in order to

13 usefully examine that question, you need a claim from somebody that it is

14 an original tape, okay? So if somebody says it's a copy, then that's the

15 end of the route technically speaking. That's the end of the route. A

16 copy cannot be authenticated. But if you have a story, a sort of

17 chain-of-custody story, then you can check that story and you can check

18 the tape against the story.

19 JUDGE HUNT: But is there any way of telling from the tape itself

20 that it has been copied itself?

21 THE WITNESS: That's not -- there are circumstances when it's not

22 possible because -- I can give you an example. If you have a recording in

23 your computer, if you digitise a recording, then you can copy that on to a

24 cassette and you can do that in such a way that you do not have any

25 switching transients except at the end, which will only tell you it was

1 made on that tape recorder, which is, you know, fine.

2 JUDGE HUNT: So there is no way of telling from the tape itself

3 whether it's a copy or an original?

4 THE WITNESS: There may be indications, but what I'm trying to say

5 is if there are no indications, even then you can't be sure. There may be

6 very obvious indications that there are over-recordings, for example, in a

7 tape, and then you know that something is missing, okay? But it is -- but

8 if you do not find an indication, then you cannot conclude from that so it

9 must be a virgin, authentic tape, unfortunately.

10 JUDGE HUNT: I'm sorry, Ms. Bauer, but I thought that the witness

11 had got to the stage where I had to know that. You proceed.

12 MS. BAUER:

13 Q. Doctor, after you compared -- you applied this technical method

14 and you inquired with a linguist from the linguistic point of view, what

15 would you say were the overriding conclusions that you came to?

16 A. Well, given the quality of the questioned material and also the

17 quality of the reference material and the misfit, to some extent, in terms

18 of both the recording conditions and also the communicative context, a

19 term which I use to indicate the context in which the language is used --

20 after all, what happens is that the questioned material is what sounds

21 like a very informal gathering of a number of people with a recording

22 which may, in fact, have been made surreptitiously. The reference

23 material is a relatively formal situation where there is an interrogator

24 or an interviewer from the Tribunal who is talking to somebody, to the

25 reference speaker. These are very different circumstances, and you have

1 to allow for differences to arise simply because the communicative

2 context, the context in which the speakers were engaged, is very

3 different.

4 Speech has a very important behavioural aspect, dimension, and the

5 behavioural dimension will vary with the situation in which a speaker

6 finds himself, more so for some speakers than for others, but there is

7 this possibility. So there is a certain amount of difference can be -- is

8 -- can be accounted for. For example, if the language is much more

9 informal in one context than another, then maybe that is not necessarily

10 an indication of non-identity. That may be accounted for by the

11 difference in context. So bearing these different technical and

12 communicative considerations in mind, then the conclusion was that there

13 is a considerable degree of similarity.

14 Also, apparently, in terms of the linguistic and phonetic analysis

15 that was performed by the expert native speaker, but at the same time, the

16 quality of the material is such that you have to allow for the possibility

17 that if you were going to compare a lot of -- a relatively large number of

18 speakers with this questioned material, that once or twice, you might come

19 across a similar degree of similarity, a similar degree of

20 correspondence. That's what I'm trying to say in my conclusion.

21 Q. If you say a relative large numbers of speakers, do you mean any

22 speaker or a speaker of a confined area?

23 A. Well, yes. Well, I was going to say obviously, but apparently

24 it's not obvious. I would be assuming clearly the linguistic analysis

25 makes it clear that for anybody to qualify as the questioned speaker, they

1 would have to meet those requirements, in other words they would have to

2 be speakers of that particular variety. Okay? So that by itself reduces

3 the number, so we are not talking about the western hemisphere in terms of

4 male speakers. We are talking about somebody who would meet linguistic

5 profile, so who would come from the area that the linguistic profile

6 indicates roughly. He might not live there but linguistically speaking.

7 So I'm talking not -- I mean, you know, it's difficult to put a figure

8 there, but I'm saying a relatively large number of people and that means

9 not if you take ten, you're likely to find somebody who is equally

10 similar, but I am thinking of hundreds or thousands. That's what I'm

11 thinking of.

12 Q. Now, Mr. Broeders, you also had an opportunity to look at Defence

13 witness's' report on the subject. My first question would be, from the

14 face of the report, did you have any indication that this person is an

15 expert in the sense of forensic audio and speech analysis?

16 A. Well, that's a question you can answer in several ways. One way

17 of answering it is that I -- because of my -- partly because of my

18 functions, I mean, you know, my position, in the international speech and

19 audio -- forensic speech and audio analysis context, I have never come

20 across this person's name. So that is an indication. But apart from

21 that, if I look at the report itself, what strikes me is that Professor

22 Krstic calls himself criminalist, which is obviously a very wide field,

23 and I think at the -- on the final page of the report, he also adds

24 criminology or professor of criminology, which is an entirely different --

25 well, not entirely, but it is a different field again.

1 The other thing that strikes me about the report is perhaps it

2 strikes me more in what it fails to do than in what it does do. What it

3 fails to do is it does not address the report proffered by the

4 Prosecution. More specifically, in the Prosecution report there is a

5 linguistic, a phonetic analysis of the language variety of the questioned

6 material and the reference material. I have not found hardly -- I found

7 hardly any references to that, to the Prosecution report. And also, I

8 have not found a counter or alternative analysis or any argument about the

9 analysis except for one -- one passage in the report, which is the one

10 about the vocals of Serbian, which I'm afraid I am at a loss to fully

11 understand. That is something that happened to me a number of times, I

12 have to say, that in some -- in places, the report was not terribly clear

13 to me. In some cases, because I know the field relatively well, I was

14 able to infer sometimes what was meant.

15 But to come back to my point, it is particularly striking, I think

16 in -- that it does not address the main issue, in the sense that it does

17 not offer an analysis of the material at issue.

18 Q. Now, doctor, as you said, there were four parts mainly to this

19 report, and one of it was, in the beginning, a psychological analysis of

20 the speech, I believe. Is this a method you would apply as --

21 A. Well --

22 Q. -- phonetic?

23 A. -- the -- after an introduction which touches on a number of

24 general issues which are interesting but, I mean, do not really address

25 the main issue, there is a section on -- which is called a psychological

1 analysis. Now, I, as a linguist and a phonetician, as a member of the

2 organisations that I have mentioned, I would not embark on such an

3 exercise myself, nor would any of my colleagues. In fact, the IFP, the

4 International Association for Forensic Phonetics, has a code of practice

5 and the code of practice explicitly tells members of the organisation not

6 to engage in psychological profiling, not to engage in statements about

7 the truthfulness of speech recordings that are submitted for examination.

8 That is not to say that, forensically speaking, these are

9 completely irresponsible activities. The issue, of course, of

10 psychological profiling is a very important one, but I think it should be

11 addressed by psychologists, and it should not be addressed by linguists or

12 phoneticians.

13 JUDGE HUNT: Mr. Broeders, do you know this International

14 Association of Voice Identification to which Professor Krstic belongs?

15 THE WITNESS: Well, I know the organisation. You may have seen --

16 I've also added the Interpol review that I wrote for the triennial

17 Interpol forensic science symposium.

18 What -- I try to do that and the reason I've added it is because

19 it gives my idea of the present state of the art in the field. I also

20 refer to the organisation except that I call it by slightly different

21 name. On page 5 of 22 of this report, the Interpol report, I refer to the

22 International Association for Identification, IAI, which has a

23 subcommittee, the VIAAS, which in fact is a group of people who work in

24 modified tradition of the voiceprint.

25 Now, the voiceprint technique is extremely controversial and was

1 subject to a fairly strong condemnation or a very critical study

2 undertaken by Bolt and others in the 1970s, I think it was, or 1968. All

3 of these matters I refer to in my Interpol report. And I think I would

4 take issue with the suggestion made by Professor Krstic that the most

5 advanced state of the art in terms of speaker identification is to be

6 found in the United States. In fact, the actual state of affairs in the

7 United States is, as I have described it in my Interpol report -- Michael

8 Saks, who is a very prominent professor, American professor of law and

9 psychology, has made a survey into the extent to which speaker

10 identification is accepted by American courts, and in America, in the

11 United States, the experts, most of them, are working in the IAVI and the

12 admissibility of that type of evidence by these practitioners is limited

13 to say -- to -- you know, to qualify it.

14 So I know the organisation. I know that it is a group of people

15 who have evolved out of using voiceprints. Some of the members of the

16 organisation are excellent phoneticians. Peter Ladefoged is one, is a

17 phonetician, Professor of Phonetics in the University of California, Los

18 Angeles. He's mentioned also by Professor Krstic. And I can only say

19 that Peter Ladefoged is one of the most prominent phoneticians around.

20 So it's not -- I'm not saying that the organisation that you refer

21 to doesn't have very good phonetician members.

22 MS. BAUER:

23 Q. In fact, Mr. Broeders, Professor Krstic, in his report, does he

24 view as the voiceprint actually the form of speaker identification as a

25 valid and a good form of speaker identification?

1 A. Well, I must say that a lot of time reading through Professor

2 Krstic's report, I agree entirely with a lot of what he says. So -- I

3 mean, some bits of the report I like very much because I agree entirely

4 with them; other bits I find difficult to understand. But I agree, I

5 think, with Professor Krstic where he condemns the voiceprint approach,

6 which I think he is doing.

7 What I have a little -- what I have problems with, in fact, is his

8 conclusion. The conclusion of his report, at the very end is one that

9 puzzles me considerably, because although the actual content of it I --

10 you know, is perhaps not very difficult, the argument that he uses I find

11 very puzzling. Because on page 23 of his report, and that's the final

12 page that I have, it says "Opinion," and then in the last -- very last

13 sentence it says: "Since in the delivered material for which it is

14 claimed that it originates from the same speaker, there are no identical

15 characteristics of the voiceprint," and this puzzles me, because to the

16 extent that I understand his argument, he does not approve of using

17 voiceprints. He disapproves strongly and yet it is used as an argument on

18 which the conclusion is based, and I find that not comprehensible.

19 JUDGE HUNT: Can I just interrupt you again? I'm sorry.

20 Mr. Domazet, we have not got Professor Krstic's CV yet, have we? You said

21 that was being translated.

22 MR. DOMAZET: [Interpretation] You will receive the CV in English.

23 I may have it ready this evening, but I'm sorry, I don't have it on me

24 right now, because I think it is important.

25 JUDGE HUNT: I was looking for it, and I'm glad to say it isn't

1 because I've lost it. I just haven't been given it yet.

2 I'm sorry to have interrupted you, but I just thought it might

3 help, because I remember asking whether this particular person was a

4 psychiatrist.

5 Yes. Well, you proceed, Ms. Bauer.

6 MS. BAUER:

7 Q. Another criteria or subject of Professor Krstic's report is the

8 influence of a so-called cocktail party phenomena on the examination.

9 Would you see that as a very crucial point in this -- in these

10 circumstances we are talking about here?

11 A. Well, the cocktail party effect is a well-known concept in

12 auditory phonetics, in the study of the perception of speech, and it is

13 used to refer to the, in a way, surprising ability of human beings to

14 concentrate on one voice in the middle of a cacophony of voices, in the

15 middle of a multitude of voices. That is something that human beings can

16 do. We can follow, we can hook on to a speaker even when there are lots

17 of people speaking at the same time.

18 The relevance of that effect to this particular recording is not

19 entirely clear to me because in the relevant passage anyway, the passage

20 of interest, most of the time the speakers are taking turns. So there is

21 no question of picking one voice out of a lot of voices. The speaker --

22 the woman asks questions sometimes and the man answers it or he

23 volunteers. He tells a story. But there is no simultaneous speech from,

24 you know, an X number of speakers. So to that extent I'm not sure what

25 the relevance of the cocktail party effect is to the taped material that

1 we're talking about.

2 Q. As the third part, Professor Krstic sort of had a chapter on

3 characterisation of vocals in Serbian language. I think we are not quite

4 sure what he meant with vocals, but what was your conclusion on that

5 section of his report?

6 A. That is in fact a section that I find difficult to follow, I hope

7 not because of a lack of knowledge on my part, although that is always

8 possible. I think what -- this is the one area where I think he does

9 actually come to a statement which could be part of a linguistic profile

10 in the sense that if I understand it correctly, he says that the voice is

11 undisputed Serbian.

12 Now, again, you know, we get into a very difficult area of what is

13 a language. What is a dialect? How many dialects are there? Let me say

14 that from a linguistic point of view, there is no way, from a linguistic

15 point of view, that you can define a language or a dialect. The best

16 answer to that question that was given by a very prominent linguist -

17 whose name I forget - is that a language is a dialect with an army and a

18 navy. So in other words, the question of a particular language variety is

19 a language or a dialect political one. It is not a linguistic one.

20 JUDGE HUNT: But, Doctor, may I give you an example where I think

21 that could not be so? Coming home on the tram last night, I was sitting

22 in front of two people who were clearly from the Office of the Prosecutor

23 and who did not realise that they had an English speaker sitting in front

24 of them, and they were chatting. Now, as an Australian - I am - I was

25 able to determine quite clearly that the male was a New Zealander, and I

1 did so because of the vowels.

2 THE WITNESS: "Fulp" [phoen].

3 JUDGE HUNT: Yes. Well, there are some other words that you could

4 use that are well-known to demonstrate the problems that New Zealanders

5 have with vowels. Now, that is a dialect, I suppose, of English and New

6 Zealand, just as Australian is. And I was able to determine he was a New

7 Zealander, and I thought probably from the South Island, simply because of

8 the vowels that he used.

9 Is that not a genuinely effective way of determining where a

10 person comes from?

11 THE WITNESS: Of course. I'm not -- I would hate to suggest that

12 that is impossible. That is very well possible, Your Honour, but the

13 point that I'm trying to make is that where -- I mean, even -- there is

14 ultimately no such thing as New Zealand English because there are always

15 people who are more central, more core New Zealand speakers than others.

16 In other words, at the edges. I mean, it's like the definitions of any

17 concepts. The closer you look at them, the more they evaporate, okay?

18 Now, the point I was trying to make is whether you call something

19 a language or dialect is a political question. The fact that southern

20 British English has become the prestige variety in England is a political

21 accident. If another King had been killed at the right or the wrong time,

22 another variety of English, perhaps Scottish, would have been the prestige

23 variance, okay? So what I'm trying to say is we can distinguish variance

24 of languages wherever we are, but to rate them in a hierarchy as language

25 versus dialect, that is a political question. That's what I'm trying to

1 say.

2 JUDGE HUNT: But all that Professor Krstic seems to be saying is

3 that the particular person involved here, who has a pseudonym VGD30, came

4 from Serbia or some area of Serbia.

5 THE WITNESS: I don't know. I don't know if that's what he's

6 saying. What I can read is that his voice is undisputed Serbian. But if

7 I don't know what is understood by "Serbian," it is theoretically possible

8 that Professor Krstic or anybody else calls anything Serbian that he

9 wishes to call Serbian. It's not for me. I mean, it's not -- I mean, the

10 text is unclear in that sense. But you may be right. It is definitely

11 possible to read that into it. That is a possible explanation. But I

12 don't find it particularly clear. And the other thing is that I do not

13 find it supported with arguments. It is a claim which may be correct,

14 which may be incorrect, but it would help us to assess it if there were

15 arguments given, which is what happens in the Prosecution report. At

16 least an attempt has been made to do that.

17 So it is -- it has the status of a more or less gratuitous

18 observation which may be correct, but it's difficult to judge.

19 The rest of this section I find irrelevant to the question. In

20 fact, that is also what Professor Krstic is saying. His definition of

21 vocal is completely erroneous and wrong, I'm afraid to say, from a

22 linguistic point of view, which is why I hesitate to accept that he is a

23 linguist, but that is by the way.

24 The experiment that he reports on the top of that -- at the top of

25 the next page is one into what I think is vowel formants, which is a

1 technical story about the spectral composition of vowels, and there have

2 been many attempts to identify speakers, to distinguish speakers in terms

3 of the spectral composition of their vowel sounds. It's one of the things

4 that you can look into. And these spectral composition of vowel sounds is

5 related to the resonating function of the glottal and oral cavity. So the

6 oral cavity functions as a resonating chamber. You can -- as a physicist,

7 you can measure these resonating chambers and then you can -- you end up

8 with certain figures for what are called formants, and that basis of that

9 you can see if you can identify human beings.

10 What he seems to be saying is that this scientist at the Yugoslav

11 National Institute for Security did this study and found that he was

12 unable to do it. Okay, that's possible and that has been done before, and

13 it is a negative result, as far as I can see, as in fact also Professor

14 Krstic says. But the relevance to the issue is not entirely clear.

15 MS. BAUER:

16 Q. So in order to conclude this section, did you see any -- any --

17 anything apart from that he criticises the use or the attribution of a

18 nationality to -- to the speaker, VGD30? Is there anything that would be

19 a counter-thesis to the linguistic report?

20 A. I don't think there's any substance -- anything of substance to

21 contradict or to agree with the points made in the Prosecutor's report.

22 Q. Now, on the last -- the last portion was entitled "Phonoscopic,

23 Identification of Voice and Possible Detection In View of the Truthfulness

24 of Its Contents." Could you please comment on this section?

25 A. Yes. I've already indicated that in the organisation that I'm a

1 member of, members are not supposed to make any statements about the

2 truthfulness of the speech that they examine. The -- what I also find

3 somewhat peculiar is the use of the term phonoscopics. The term

4 phonoscopy, I also explained that in the survey that I wrote for the

5 Interpol symposium. The term phonoscopy was used and still is used to

6 some extent, especially in Eastern European countries. There's always

7 been a enormous amount of speaker identification work going on behind the

8 Iron Curtain. Partly -- I don't know, but partly this may have been

9 because the standard of proof or of scientific proof was different from

10 what it was in the West. I don't know. But there was a lot of work going

11 on in Eastern Europe, and in fact there's a reference to this sort of

12 thing going on in Solzhenitsyn, the Red Circle.

13 Now, it still is called phonoscopy. The trouble with the word

14 phonoscopy is that it sounds very scientific. I mean, the trouble in the

15 sense that it suggests more than it is. It has a ring which associates it

16 with dactyloscopy, fingerprint -- fingerprinting for identification

17 purposes. But what is puzzling also is that phonoscopy, as it was

18 practised in Eastern European countries to the -- as far as I'm aware, was

19 not about detecting the truth. It was basically trying to establish

20 whether speakers were identical, but not detecting the truth. So the use

21 of the term phonoscopics here is also somewhat peculiar. None of my

22 colleagues would use that word except again people from Lithuania, Estonia

23 perhaps. You know, from the former Eastern Bloc countries.

24 Q. Mr. Broeders, in this section, Professor Krstic lists a number of

25 things which ought to be done in order to make a voice identification. I

1 think -- I think you'd agree that most of the things that he listed that

2 ought to be done are correct. However, did you see anywhere that he

3 undertook this exercise he outlined ought to be done?

4 A. That is -- this is one of the areas where I agree entirely in the

5 sense that, for example, on page 20 -- 20 -- the final page, for example,

6 he says that there are all sorts of things that you can do, that is it is

7 possible -- the final paragraph, just above "Opinion" on page 23.

8 It says, "According to everything stated so far, it is quite

9 possible to talk about speaker sociolect and dialect as well as the

10 problem whether the language in question is the person's native language

11 or to what extent is his language influenced by some other language," and

12 he goes on. I agree, but why doesn't he do it? I mean, that is the --

13 that is a question that inevitably presents itself. If you say, as

14 Dr. Krstic does, that these are the things that one can do in respect of a

15 language sample, why doesn't he go ahead and do it in respect of this --

16 the material that we are looking at here? That is what I find a little

17 bit strange.

18 Q. Now, going last again to his opinion, we talked already about the

19 conclusion he had, "There are no identical characteristics of the

20 voiceprint," but he continues to say, "There is a grand possibility that

21 it is not the same speaker." What does this tell you? Does he exclude

22 any possibility that it might be the same speaker?

23 A. I'm not sure what he means by "a grand possibility." I find that

24 -- the impression I get is that the text was translated into English, and

25 not always equally felicitously, so I don't know -- I'm not sure whether

1 it means a great possibility or a small possibility. I think actually

2 probably it means a sizeable, a good possibility, in which case basically

3 the conclusion is the same as that of the -- in the Prosecution's report,

4 essentially, namely that there are similarities but, you know, it is

5 difficult to -- I mean, you know, his conclusion is it is possible it's

6 not the same speaker. The argument that he uses in the same sentence I

7 find incomprehensible, as I've already said. "There are no identical

8 characteristics of the voiceprint," that argument used by somebody who has

9 just explained that voiceprints are not reliable, I find incomprehensible,

10 but again it may be a translation problem there.

11 Q. Now, Mr. Broeders, the analytical methods you use in order -- or

12 you used in this -- in this case, are they accepted in courts of different

13 countries?

14 A. Well, again, that is a difficult question because there are

15 common-law countries and there are continental-style countries, there are

16 adversarial systems and non-adversarial systems. In the situation in the

17 United States, where we have the Judge who has the gate-keeper function is

18 the one that was described in my Interpol survey. So in other words, in

19 the United States, whenever you have technical or scientific evidence, you

20 have to go -- you may have to go through a Daubert hearing, and I happened

21 to see on the Internet yesterday that in the United States, fingerprint

22 evidence has been rejected for the first time in history in the sense that

23 the fingerprint expert is not allowed now to say that two fingerprints are

24 a match. So to give an idea of what happens in the United States.

25 Now, in the Netherlands - and that's always a source of confusion

1 - we do not have a system of admissibility of evidence. So any type of

2 evidence is admissible, and it is up to the Judge to decide whether he or

3 she thinks it makes any sense. So it's a difficult question to answer. I

4 can say, yes, it's accepted in the Netherlands, in Belgium, et cetera, but

5 that's meaningless because virtually anything is accepted, except that you

6 may get very little speaking time, as it were, because, you know, it

7 doesn't -- but let me put it this way: In the U.K., contrary to what

8 Professor Krstic says -- and this is a point that I'd like to actually

9 explicitly make, because it's very confusing. On page 25 of the -- sorry,

10 22 in handwriting, page 22 of his report, he has a paragraph starting

11 with, "It is interesting that." And then he talks about what has happened

12 in the United Kingdom. Now, that's very confusing, what he writes here.

13 What happened in the United Kingdom was that in the sixties or in the

14 seventies, there was an organisation called the British Academic -- sorry,

15 the British Association of Academic Phoneticians -- sorry, the British

16 Association for Academic Phoneticians, the BAAP. These people, who worked

17 at universities passed a motion saying that phoneticians should not appear

18 in courts of law to pronounce upon identity, non-identity of speakers.

19 That's what they said. They said this because they felt that a lot of

20 misinformed and badly informed experts were working in the U.K.. They

21 also said this because they believed there was no reliable method.

22 This has since -- now, what Krstic says is that in his final

23 sentence of that paragraph, "The outcome of which is that the phoneticians

24 there managed to prevent the use of phonoscopics as evidence in court."

25 That is not true at all. First of all, it wouldn't be called

1 phonoscopics. But apart from that, Peter French, Dr. Peter French,

2 somebody who appeared again for this Tribunal last year, is somebody who

3 makes a living appearing in British courts, and that wouldn't be possible

4 if it was not accepted, if this type of evidence was not accepted. So

5 there are at least five or six people that I know who, on a very regular

6 basis, make these kinds of -- do this kind of work.

7 JUDGE HUNT: But Mr. Broeders, in the U.K. I'm sure it must be the

8 same, it doesn't go under the same name, as the American test, but there

9 must be an acceptance by the Judge that the evidence is -- relates to a

10 recognised scientific procedure. Now, if that has been accepted in the

11 U.K., as it appears to have been, has it been accepted elsewhere in the

12 adversarial systems, where you need to pass such a test?

13 THE WITNESS: As far as I'm aware, what has been happening in the

14 U.K. is that he do not have the strict possibility, because of course in

15 the U.S. nine times out of ten there is no Daubert hearing either, but you

16 can always use it as a defence, but in the U.K., as far as I'm aware, the

17 issue is open, so -- I mean, it hasn't been thrown out in that same sense

18 and -- so there is a difference there. And the Defence may -- I mean,

19 what happens more frequently is that you have Pre-Trial Conferences where

20 the experts of the two parties come together and say, "This is what we

21 agree about and this is where we disagree." So that is the way they try

22 to resolve it. But the issue that you're addressing, the scientific

23 status of the evidence -- of the method as such is not approached head-on,

24 if you like. But what I can say about it is that, as I've already

25 indicated, speech has an important behavioural dimension, like, for

1 example, handwriting, which makes it very ill-suited, if you like, for

2 automatic examination, analysis, et cetera, and also, it makes it

3 difficult to, you know, distinguish. There is a great deal of overlap,

4 possibility of overlap, between different speakers. So in other words,

5 the distinguishing power of speaker identification is -- even under the

6 best circumstances, is poorer, is worse, than, for example, fingerprints,

7 again, if fingerprints are -- if not carried out according to the proper

8 protocols.

9 So I mean, in very popular terms, we are not talking DNA here,

10 right? In very, very popular terms.

11 MS. BAUER:

12 Q. Now, in order to go back to the reference material, having read

13 the Defence expert's report and having thought about this issue, would

14 this alter in any way your findings that you conclude that it is possible

15 that it is the same speaker in the reference material and in the

16 questioned material?

17 A. No. The report by Dr. Krstic would not change my report at all,

18 on any points.

19 Q. So you would reaffirm that?

20 A. Yes, I would, yeah.

21 MS. BAUER: Thank you very much. No further questions.

22 JUDGE HUNT: Mr. Domazet?

23 MR. DOMAZET: Thank you, Your Honour.

24 JUDGE HUNT: I'm sorry, just before you start, my list was wrong.

25 I had crossed out the wrong number. So this report will be Exhibit P113.

1 Sorry to interrupt you.

2 Cross-examined by Mr. Domazet:

3 Q. [Interpretation] Mr. Broeders, good afternoon. I will ask you

4 several questions regarding your report. First of all, could you please

5 look at paragraph 5(3) of the your report, that's on page number 4?

6 A. Yes.

7 Q. Here, in this section, you explained what the tape 1001 consists

8 of, and this is the tape that is at issue here, and if I understood you

9 correctly, you also stated that on page A, there were six separate

10 recordings. Is that true? On side A, I'm sorry.

11 A. Well, I don't have -- I don't know off the top of my head, so to

12 speak, but there were a number of separate recordings, definitely. In

13 fact, I have some sort of rough and ready sketch of the contents of side

14 A, which I'm trying to dig out now, which I could perhaps show the Court.

15 It is a little bit rough and ready, but it gives a good idea, I think. So

16 what we have is -- I'm afraid it's Dutch but it says "side A" at the top

17 and it says "side B" a little lower down. And then side A is the side of

18 interest, and -- so side A and side B and then -- and then here, this is

19 the -- again, I would not like to say that this was one continuous

20 recording because I have to allow for the possibility that there is some

21 false starts at the beginning. I did not look into that. I was not asked

22 to do it, so I didn't really systematically look into it, but here there

23 are clear interruptions.

24 Now, I have to warn you, because this is out of scale, if you

25 like, so the 25 minutes look considerably shorter than the one minute

1 here, okay? So it's out of scale. This should be much, much longer, but

2 the times are there, again in a very rough and ready fashion, 25 minutes,

3 one minute. So essentially, what it looks like on side A is a longish

4 recording of approximately 25 minutes, plus a number of very brief ones

5 which I have not particularly paid attention to, except because to look at

6 the switching transients because I wanted to know what they looked like,

7 to confirm that the recording had been made on a microcassette.

8 Did I answer your question?

9 Q. In this drawing of yours, what are these marks towards the end?

10 So are they the interruptions in the last recording and the one before the

11 last, these markings that you put on?

12 A. Are you referring to the discontinuities that we talked about?

13 Q. Yes, is that what it means?

14 A. Well, I can show you perhaps -- can I switch to the computer

15 again? Because that's -- I can in fact easier now. The -- what you see

16 here is -- this is not all of side A because we were running out of space

17 a little bit, and also what happened after this, here where my mouse is,

18 if you can see that, was not of very great interest. There is no

19 recording there, so we stopped there, but this is the 25 minutes, okay?

20 As you can see at the bottom, because it says 24, 25 minutes, okay? And

21 these are the first two separate recordings, if you like. So this

22 corresponds partly to what you -- to the first part of what you just saw

23 in the drawing, but the drawing gives a complete picture for side A.

24 Now the matter of the -- the passage of interest is the one that's

25 marked here with those two little arrows, if you like. So this is the

1 part of interest that we have been talking about. I can zoom into this,

2 if you like, and then press this button then I zoom in. This is where the

3 marks are again? Okay? And this is the "Mitar, like ... Mitar" passage

4 that starts here, so to speak. Now, the discontinuity was at 25 something

5 -- no, 23 -- sorry, I have to look it up again. Sorry about this. If

6 you list them, we can also find them. Was it 2344 I think actually? Here

7 it is. I've got it. So we now -- this is where it is. Okay?

8 Q. All right. That's on the ELMO. So could you please show on this

9 drawing of yours that's on the ELMO where what you've just shown us on the

10 computer is?

11 A. Somewhere here. Oh, sorry. It's -- this is 25. If this is 25,

12 then it's somewhere here. Because it's 23, 23 minutes into the recording

13 on side A.

14 Q. Since we have transcripts of the part of this tape, did you -- in

15 fact transcripts for the whole recorded material, so for the entire side.

16 Did you make those transcripts at all or not?

17 A. No. I did not make any transcripts. The transcripts that I have

18 looked at was in fact limited to that one or two pages, A4 size, and which

19 were the transcripts of the -- what I call the relevant passage. And what

20 I received was both a B/C/S transcript and an English translation. So

21 that's what I've seen. And, of course, I've listened to the tape a number

22 of times.

23 Q. So you were provided only a transcript of one part of the tape;

24 however, you listened to the entire tape?

25 A. Yes, that's right.

1 Q. Did you observe any other differences in the tape, as far as the

2 intelligibility of what was recorded is concerned? Is there any

3 difference in other parts as compared to this segment that the Prosecution

4 asked you to examine?

5 A. Well, what I can say is that the 25 minutes recording was of a

6 similar quality, in the sense that when people speak with little effort,

7 it is probably extremely difficult or it may be difficult to make out

8 exactly what they are saying. If they raise their voices, which happens

9 from time to time, I think it's probably easier. My yardstick for this is

10 that with the transcript that I had, I was able to follow, if you like,

11 the native, original language that I was listening to, okay? I could

12 recognise the spelling in the original language that I was hearing. So

13 that gives me some idea of the degree of intelligibility, because although

14 I do a lot of this work, day in and day out, it is difficult to determine

15 the intelligibility of a recording in a foreign language, obviously.

16 As to the rest of your question, what about the rest of the tape,

17 I also remember listening to the B side because what I did after -- simply

18 as a professional -- out of professional curiosity, I'm afraid, when I

19 noticed this one hiccup, my tendency is to see if there are any others on

20 an evidential tape simply because you always want to find out. So I

21 listened to the tape, in the sense that I tried to spot any further

22 hiccups or discontinuities or transients of that sort. I did that very

23 quickly, in the sense that that was not explicitly part of what I was

24 asked to do, but I did nevertheless try to do it systematically.

25 Q. If I understood you correctly, you followed on the transcript only

1 the part of the tape for which the transcript was provided to you but it

2 is a smaller part of the tape; isn't that so?

3 A. No, no, sorry. In that case, I didn't make myself clear. What I

4 did do was listen to all of the tape except that I wasn't listening for

5 what was being said, because that wouldn't make sense to me most of the

6 time, anyway. But I was listening out for events that might be

7 interesting from a technical point of view, from the point of view of how

8 the recording was made, from the point of view especially of are there any

9 major discontinuities that point to over-recordings, is this what looks

10 like continuous recording, these sort of aspects are things -- and again,

11 in order to do this, you always listen to the tape, to the background

12 noise. If there is a change in the background noise, if there is one,

13 that again may be an indication of something untoward having happened to

14 the tape. So there are -- critical listening is very important, a very

15 important step to any form of tape analysis, and you would always want to

16 do that, and major irregularities or potential irregularities would always

17 be noticed ideally any way.

18 JUDGE HUNT: We will have to take the break now, Mr. Domazet.

19 It's 4.00. We will resume again at 4.30.

20 Before I go, we have no transcript of the whole of this tape, but

21 I notice that at the foot of page 4 of Mr. Broader's report, in the last

22 incomplete paragraph on the page, something which I had never been aware

23 of before, where the -- what's his number, VGD30 has identified himself as

24 such. If that is correct, it may be of some significance in the case.

25 See in the second last line on page 4? Anyway, you might like to look at

1 that over the break.

2 We will adjourn now.

3 --- Recess taken at 4.00 p.m.

4 --- On resuming at 4.30 p.m.

5 JUDGE HUNT: Mr. Domazet.

6 MR. DOMAZET: [Interpretation]

7 Q. Mr. Broeders, let us resume where we left off half an hour ago.

8 We were talking about your listening to the tape, and my question was

9 whether you listened to the whole tape and used the transcript only for

10 the relevant part. I asked you this because on the basis of my own

11 listening to the tape, and I refer specifically to the first 25 minutes,

12 the conversation of the speakers, for me at least, was absolutely

13 incomprehensible up to this point which is of significance and which,

14 though with difficulty, was intelligible, which leads me to believe that

15 something is wrong, that it's rather strange that only particular part

16 should be much clearer than the 20 minutes that preceded it, during which

17 at least I, as a layman, was unable to understand anything.

18 I don't know whether you were able to follow in a similar fashion

19 in view of the fact that you don't know the language and whether the

20 person who assisted you and who does know the language could help you in

21 that respect.

22 A. Yes. What I can say is that the -- what we did do was concentrate

23 on the passage of interest, and although I understand that originally

24 there was an interest on the part of the Tribunal to make a full

25 transcript of the tape, or there may have been an interest in the sense

1 that originally the question that was put to me was to enhance the tape,

2 that was not really followed up, for reasons which I have not looked into

3 and do not really concern me or affect me.

4 So although that was the original request, to improve the

5 enhancement of the tape, the intelligibility of the tape, we actually, as

6 a forensic institute, offered the possibility for a Tribunal Prosecution

7 interpreter to come and make a full transcript, and I think that -- I

8 don't know to what extent this has taken place, because on one or two

9 occasions an interpreter has been -- has come to the forensic institute

10 and has listened to the tape, but the arrangement was that the

11 interpreters or the listeners would make their own transcripts and it

12 would not be a forensic institute transcript, if you see what I mean.

13 So that is also why I don't know whether, in fact, a complete

14 transcript was made. I have never seen it. And I've only listened,

15 concentrated on the passage of interest.

16 Now, your position that it is remarkable that only this passage

17 should be intelligible and the rest should be unintelligible, I'm not

18 really in a position to answer that one because, first of all, I'm not a

19 speaker of the language in question; and secondly, I have not really

20 listened to the tape from that perspective. The perspective that I

21 listened to the tape to was to see if there were discontinuities in the

22 recording situation, differences in background noise, those sort of

23 features which might be indicative of manipulation or whatever.

24 I have not found those, but it is not impossible for a recording

25 of this type, which sounds like a surreptitious recording or a recording

1 where the microphone was removed a long way from the speakers for these

2 recordings to contain passages of different degrees of intelligibility.

3 It is quite natural for that to occur because sometimes conversation can

4 liven up and sometimes they can be less interesting. So I'm afraid I

5 cannot really answer your question on that point.

6 Q. Thank you. But as far as I am -- understand you, this was not

7 done by you. The tape of which I received a copy was not enhanced by you,

8 at least this part of it. I know that you focussed on this particular

9 portion and taped it on another tape, but I am talking about the original

10 tape, and it was not done at your institute, if I understand correctly.

11 A. The enhanced -- the request was made to make an enhancement. What

12 we do regularly, also with Dutch police and Dutch requests of this type,

13 is that we ask the people requesting this to, first of all, tell us how

14 much they have already on paper and then to come to the laboratory and do

15 the work in -- with using our facilities. You see, it is not easy -- I

16 mean, we cannot simply set a number of knobs and switches to improve a

17 tape. It's very much a very special job in the sense that it is difficult

18 to assess the effect of certain types of filtering. So preferably we have

19 the listener, the person who is making the transcript, there, so that he

20 can interact with the technician and say, "Look, this is the best position

21 for this part of the tape." So that is why -- that is what tends to

22 happen, and as I've already I think also made clear in the report, a lot

23 of the work that is called "tape enhancement" goes on for the purposes of

24 cosmetic improvement of tapes because tapes have to be played in courts

25 and there may be unpleasant noises that can easily be removed. But if

1 it's a matter of subliminal or marginal intelligibility, what I've found

2 is that it is extremely important to have a very good listener who speaks

3 that particular language variety very, very well, and then you can still

4 get a lot of words on paper.

5 But when it comes to the question, "Did you do an enhancement

6 job," well, I've already, I think, tried to indicate what has happened.

7 The request was there. We dealt with it by saying, "These are the

8 facilities." On one or two occasions, an interpreter came along, but I've

9 never seen a complete transcript of the recording.

10 Q. In view of the fact that you are not a speaker of the language,

11 and you have explained the difficulties you had as a result, could you

12 tell me how great is the influence of the person who knew the language and

13 who took part in this over the final conclusion that you've reached in

14 this case? How great was the influence of the assistance he provided?

15 A. The influence is essential, because if the linguistic or phonetic

16 analysis suggests that there are major discrepancies, major differences,

17 between questioned and reference material, then this type of conclusion

18 could not be drawn. So what I've tried to explain in my report is that if

19 you are dealing with a foreign language, it is absolutely essential that

20 there is in linguistic and phonetic analysis of the language variety, if

21 that is not the case, a very strong proviso, a very strong reservation,

22 has to be made if a conclusion is drawn at all because clearly, if -- I

23 mean, this sort of information is so essential that it is not really

24 responsible to draw a conclusion if that type of analysis cannot take

25 place. So in that sense, it is an essential condition.

1 Q. But if we have the opinion of such an expert that this is a

2 dialect spoken by people from eastern Bosnia, bearing in mind that in my

3 opinion - and I don't think you would deny it - that that is a dialect

4 spoken by at least hundreds of thousands of people, if that expert is not

5 also a phonetics expert, to what extent, then, was his assistance

6 decisive? To what extent was his influence important for you?

7 A. In the sense -- it's difficult to quantify, but what I've tried to

8 explain is that it is an essential condition. And what in this type of

9 situation I try to do is to -- although I cannot assess the details of the

10 analysis, I can follow the reasoning behind the analysis. So what I try

11 to do is to make sure that the person I consult uses linguistically sound

12 arguments. Whether these arguments are correct, I cannot really

13 ultimately assess, but I can decide whether they are linguistic arguments,

14 in the same way as I can decide that in the report that was submitted by

15 Dr. Krstic, there are no linguistic arguments that are given.

16 Q. Yes, but my question was preceded by the statement that a large

17 number of people use that dialect. So I don't know how important that

18 would be when a linguistic expert said that those were people from eastern

19 Bosnia. To what extent was -- did that affect the final conclusion

20 regarding the possibility that this was the voice of one and the same man?

21 A. Well, the conclusion is not that it is the voice of one and the

22 same man, so I think we have to try and -- I would like to repeat that

23 that is not in fact the conclusion. What the conclusion is, is that it is

24 possible that it is the same speaker, and there is a very essential

25 difference there. Again, I can say that if the linguistic analysis had

1 been negative, convincingly negative, then that conclusion would not have

2 been drawn, could not have been drawn. So that is where the importance

3 lies.

4 Q. Yes. If I understand you properly, a negative linguistic analysis

5 would be that that person is not using a similar dialect. Is that what

6 you mean when you say "a negative linguistic assessment"?

7 A. Generally, yes, unless of course there were reasons to explain

8 why, because some people simply speak two, perhaps even more, varieties of

9 language. I mean, these cases do occur, but normally that would be a

10 cause for further questions, obviously.

11 Q. Yes. That was why I said what I said at the beginning, and that

12 is that an extremely large number of people use that dialect, and in my

13 view, this expands the range of people who could have been the speaker.

14 So, though I did not say that you have said that it was one and the same

15 speaker, but you did say that it was a possibility. But allow me now to

16 go on to another question.

17 Or maybe before I do that, let us clear this up. Let us clear up

18 what His Honour Judge Hunt wanted to ask. So will you please look at page

19 4, and the last paragraph.

20 JUDGE HUNT: When you do so, you must be very careful not to use

21 the person's name, to use the pseudonym that you've got on that sheet

22 there.

23 Whilst the witness is looking for that, Mr. Domazet, your

24 questioning after the adjournment started off with your own personal

25 experience in listening to this tape. I hasten to add, as I'm sure you

1 are aware, that is not evidence, and if you want to go into the witness

2 box to tell us how the tape sounded, you should do so, but not at this

3 moment.

4 MR. DOMAZET: [Interpretation]

5 Q. Have you found this last paragraph? Will you please avoid

6 mentioning the name, as it has the pseudonym VGD30, but the explanation:

7 "Since his voice on Exhibit 2002 is not in dispute, it would follow from

8 this that it is not in dispute on Exhibit 2001 either," which obviously is

9 not the case. So could this be an error in the report itself, a slip?

10 A. That's always possible, I'm afraid, except that I don't quite see

11 it. I was working, apparently, on the assumption that the material that I

12 call 2001 and 2002 was not question material but reference material. Is

13 that a wrong assumption?

14 JUDGE HUNT: It may be that I have led you all into this problem,

15 and I'm sorry if I have done so, but this report came to me only as you

16 came to give evidence, and I read it a little bit too hurriedly.

17 I see on the front page or page 2 of your report you have

18 identified it as the conversation with the investigator. I had misread

19 it, and I am sorry for having done so.

20 I'm afraid, Mr. Domazet, I'm at fault.

21 MR. DOMAZET: Yes. [Interpretation] Very well, then. I withdraw

22 that question, and there's no need for us to go into it now.

23 Q. In your conclusions which are to be found in paragraph 5.8 and

24 then in paragraph 6, there is an addition by you in which an explanation

25 is given that the name or the shortened name of this person is mentioned

1 in the conversation, and you highlight this as being significant for

2 identifying the speaker. I would agree with you if that man had actually

3 uttered those words and if the whole thing is not planted.

4 So the question is: Could somebody have acted out that part, too,

5 if we can use that term, if everything may have been said by a person who

6 used this name and said what he did without it actually being the witness

7 himself, who is absolutely denying having participated in such a

8 conversation altogether?

9 A. Yes. The reason -- actually, why this was added in the report is

10 that this is what we -- this is normal practice in the reports that I

11 write. Sometimes recorded material contains internal evidence that might

12 point to, point to the identity of the speakers. I would not say it was

13 significant. I would say it might be relevant. That is also the spirit

14 in which I've written it.

15 It is not -- I would hate to suggest that it is conclusive; far

16 from it. It is an indication that ultimately may carry some weight. The

17 least you can say is that it may be relevant, and that is also why it was

18 included.

19 More specifically as to your question whether if you start from

20 the assumption that this whole recording or this part of the recording is

21 a frame, is a put-up job, if you like, well, of course anything is

22 possible from that point of view. It is always possible for that scenario

23 to be the case. So you cannot exclude that possibility at the same time.

24 The real question, I suppose, is how much evidence is there for it,

25 because that ultimately decides the reality value of that scenario.

1 Q. At the very beginning when you were explaining, you told us in a

2 very fair manner and a correct manner all the possibilities for abuse, and

3 you said that it was absolutely possible - I think you used the word

4 "computerised" - for a computerised conversation to be taped over the

5 original tape without one being able to notice it through an expert

6 analysis. Did I understand correctly what you said at the beginning?

7 A. Yes, that is what I said.

8 Q. Let me also ask you: A witness was heard here in court who said

9 himself that he participated in this conversation, and he said that he --

10 or, rather, she switched on the tape recorder and later switched it off.

11 She claimed that there were no interruptions and that the conversation was

12 taped for about one hour and a little longer. Would that be possible on

13 the basis of your analysis and your testimony here today?

14 A. Well, I think it's fairly obvious that on side A of this cassette

15 there are interruptions, because if you -- I don't know if you still have

16 this picture in front of you, but there are a number of takes, if you

17 like, a number of separate recordings on side A , but it is not clear to

18 what extent that is necessarily a problem. Whether it can be reconciled

19 with the statement that a recording was made of one hour's duration is a

20 different matter, but then I think we very easily enter into the realm of

21 correct -- the correctness of memories of people, and that is an area in

22 which I am not competent except to say that, you know, the -- what people

23 tend to do when they make a recording is they may well forget about all

24 the false starts that they made. I mean, that is something that people --

25 because it doesn't appear to be relevant. So for one thing, that is

1 something that you find on a tape. On the other hand, the duration of the

2 recording that looks continuous on side A is 25 minutes, and the other

3 bits are relatively short.

4 So I cannot, on the basis of that, recognise -- reconcile that

5 with the statement that you just put to me.

6 Q. Thank you, Mr. Broeders. I have no further questions.

7 JUDGE HUNT: Ms. Bauer.

8 Re-examined by Ms. Bauer:

9 Q. Mr. Broeders, as far as the Prosecution understands, is VGD30 did

10 not dispute that he had a conversation, but it was only a dispute what he

11 really said.

12 Now, if we look again at P109.2, the excerpt of the relevant

13 portion we are concerned with which forms part of the 25 minutes -- do you

14 still have the copy?

15 A. Somewhere, no doubt. Yes, I have it.

16 Q. If you look at that copy, from lines 4, when the relevant portion

17 starts, to line 15, did you find any indication of interruption or that it

18 had been stopped, tampered or over-recorded with?

19 A. No.

20 Q. From lines 16 to 26, have you found there any interruptions?

21 A. No.

22 Q. And is there anything on it that would indicate to you that it is

23 not VGD30 we are talking about on this recording?

24 A. Well, let me put it this way: That the statements that

25 Prosecution attributes to VGD30 in this excerpt sound to me as though they

1 were coming from the same person, okay? So, in other words, that is what

2 I can say and that is also, I think, what is -- can be said on the basis

3 partly again of this linguistic and phonetic analysis. So in other words,

4 I would not like to suggest that the utterances here are from different

5 speakers. I would also point out that it would be somewhat unlikely, in

6 view of the nature of the conversation, for there to be more speakers

7 involved. It wouldn't make too much sense probably if, you know, this

8 conversation took place between various people. This part, I mean. In

9 other words, it sounds like a dialogue at this stage.

10 MS. BAUER: Thank you, Mr. Broeders.

11 No further questions, Your Honours.

12 JUDGE HUNT: Thank you very much, sir, for coming to give evidence

13 and for the evidence which you have given. You're now free to leave.

14 Mr. Domazet, that other document that you have given us, the

15 English translation of the Official Gazette with Articles 153 and 154 of

16 the relevant statute, that will be Exhibit D45.

17 [The witness withdrew]

18 MR. GROOME: Your Honour, if I may make an inquiry regarding that

19 particular document?

20 JUDGE HUNT: Yes.

21 MR. GROOME: It's my understanding that -- I guess what I'm just

22 curious about is, is this still an issue, the law -- is it still an issue

23 that I need to deal with in my closing submission? It was my impression

24 that the recordings were admitted and that this will not be an issue, what

25 the law in Yugoslavia is regarding the recording of conversations. If it

1 is, I'd just like to know so I can address it.

2 JUDGE HUNT: If I may say so, that's all you need to say, but the

3 point was taken that they were in opposition to provisions of a statute.

4 We asked him for the terms of the statute. We were shown an opinion which

5 didn't refer to them, so we asked to have it completed. But the document

6 has been -- I'm sorry, the tape has been admitted notwithstanding these

7 provisions.

8 MR. GROOME: Thank you, Your Honour.

9 JUDGE HUNT: It's just to complete the record on it. That's why I

10 didn't bother to ask you whether you objected to it because it was a

11 matter I thought we'd made clear before. We wanted to have it complete.

12 MR. GROOME: I'm just being cautious, Your Honour, thank you.

13 JUDGE HUNT: That's all right. Yes, Ms. Bauer.

14 MS. BAUER: Your Honour, there is one small problem we have been

15 made aware of. P113 is actually mentioning the name of the protected

16 witness.

17 JUDGE HUNT: We will place it under seal.

18 MS. BAUER: And we would make then a redacted public version as

19 P113.1.

20 JUDGE HUNT: As soon as you bring it along, yes, it will be

21 marked, because we want to be able to refer to the contents in any

22 judgement we give.

23 MS. BAUER: And another information, the slides of this morning,

24 one colour copy has been done and copies will be reproduced and delivered

25 to the Chamber Monday morning.

1 JUDGE HUNT: Is it of each stage that he showed us these arrows?

2 MS. BAUER: Yes.

3 JUDGE HUNT: Because it will be very difficult to read the

4 transcript unless we have something like this, and it is in the same order

5 that he dealt with. You may have to provide an operator as well, I'm

6 afraid.

7 MS. BAUER: I'm just advised we could also get the whole

8 PowerPoint presentation, how it is presented.

9 JUDGE HUNT: I heard it all. It came through the sound system.

10 But it would be very good if it could be checked that it's in the right

11 order so that if we are reading his evidence, we will be able to follow it

12 on these colour prints in the correct order. But thank you very much for

13 that.

14 Is there anything else we can deal with at this stage? We will

15 be, I understand, in Courtroom II, back in the shoebox, next week.

16 Now, how much work do you think we've got for next week, Mr.

17 Groome? They are all your witnesses.

18 MR. GROOME: Your Honour, recalling your admonition regarding the

19 psychiatrist, I would hope to think that we would finish Monday, but

20 especially in light of the other two fact witnesses I expect to be

21 extremely brief, I hope to finish Monday. The problem that I asked you be

22 made aware of regarding the visa has been sorted out. The person will be

23 here over the weekend, so he should be ready to testify Monday as well.

24 JUDGE HUNT: If we are so far free next week that we no longer

25 need to sit this extra hour a day, I think we will proceed along the usual

1 hours on Monday and, if necessary, Tuesday, because it does cause some

2 inconvenience about having to sit the longer hours.

3 Very well, then, we will adjourn now until 9.30 Monday, in

4 Courtroom II.

5 --- Whereupon the hearing adjourned at

6 5.03 p.m., to be reconvened on Monday, the 14th day

7 of January, 2002, at 9.30 a.m.

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