Page 15069
1 Thursday, 23 June 2005
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.09 a.m.
5 JUDGE ORIE: Since the witness will testify in closed session,
6 he'll be cross-examined in closed session. The curtains may be drawn down.
7 We'll not yet turn into closed session. However, I'd like to
8 remind the Prosecution that we are still waiting for many of the
9 translations of the Zvornik contextual exhibits, and it goes without saying
10 that if there are no translations there, that, of course, the time limits
11 will be extended for the Defence to oppose against any of these documents.
12 Having said this, we'll turn into closed session.
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12 --- [Private session]
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Page 15215
1 [Open session]
2 THE REGISTRAR: We are in open session, Your Honours.
3 JUDGE ORIE: Thank you, Mr. Registrar.
4 Mr. Stewart, the curtains are almost up.
5 MR. STEWART: Yes. Your Honour, we're in open session?
6 Your Honour, I'm going to proceed cautiously because the matter
7 that I raise does relate to the evidence I just heard, but I do believe I
8 can deal with it conscientiously in open session in a way that doesn't
9 involve any risks for which we were in closed session. If, of course, at
10 any point the submissions do lead us back into closed session, well, no
11 doubt the Trial Chamber deals with that in the usual way. But I'm going to
12 deal with it entirely anonymously and avoid anything which points in any
13 way in open session to identification of the witness.
14 Your Honour, earlier today - and I don't need to go into the
15 particular matter and shouldn't in the circumstances - but Your Honour
16 commented on my objecting to a question that came in the course of Judges'
17 questioning. But, Your Honour, I do wish again to register an objection to
18 one of Your Honour's questions and a line of questioning, and it is found
19 at page 30, line 16. And I don't need, although it would be relatively
20 harmless to read it out anyway, but I don't need to. Your Honours will see
21 that.
22 May I summarise it in this way: It was a question relating to
23 the knowledge of the witness in matters outside the particular area which
24 we were dealing with, and then the questioning went on to invite evidence
25 from the witness in relation to other municipalities. Your Honour will
Page 15216
1 recall particularly a mention -- and again, Your Honour, I apprehend it is
2 entirely harmless for me to say this, Zvornik came up as a particular
3 municipality.
4 Your Honour, there are a number of points involved in this
5 objection. One is -- one is this. One can take them in any order really
6 because they're all there. One is merely not a procedural matter, Your
7 Honour. It is that in the application that was made to call this witness
8 as a witness, that we were given as an annex -- confidential annex to the
9 motion a list of -- it's 11 - there's a little Roman numbering - a list of
10 11 matters that the witness could testify about. I accept the words "inter
11 alia," which I well understand were there. Nevertheless, that is very much
12 in the nature of a 65 ter, but at that stage really a more advanced and
13 more specific 65 ter summary, because when a witness of this nature is
14 being applied for as a new witness, the case has moved on and the nature of
15 the application implies that the specification of the areas to be covered
16 by the witness should, in fairness, be more detailed, more helpful, and
17 more specific than is normally found in 65 ter statements. And none of
18 those 11 items even signal exploration with this witness of that sort of
19 area.
20 Secondly, Your Honour, the nature of the question and the answer
21 invited the witness straight away to go into areas of potentially remote
22 hearsay. It was clear that the witness was not giving any firsthand
23 evidence in relation to this matter. And, Your Honour, if this witness's
24 evidence in relation to those matters was to be invited by questioning in
25 that way, then one can ask rhetorically really what limits there are to the
Page 15217
1 flimsiness of the evidence which can be given in relation to such matters.
2 And, Your Honour, one contrasts it with the procedural
3 protections and procedural hoops that one has to go through in relation to
4 some of this evidence. We have viva voce evidence, and one can take that
5 particular municipality. We have viva voce witnesses in relation to that
6 municipality. In fact, we've got one or two, as it happens, by coincidence
7 still to come in relation to the particular municipality that I mentioned.
8 We have 92 bis procedures to protect, well, all parties and to protect the
9 procedure, and particularly to protect the defendant, 92 bis procedures to
10 ensure that any evidence which is not then fully given viva voce and fully
11 tested by cross-examination is properly and fairly admissible under that
12 rule, with notice, with an opportunity to put -- to respond, on the part of
13 the Defence, with a coincidence, still to come in relation to the
14 particular municipality I've mentioned.
15 We have 92 bis procedures to protect, well, all parties and --
16 and to protect the procedure and particularly to protect the defendant --
17 92 bis procedures to ensure that any evidence which is not, then, fully
18 given viva voce and fully tested by cross-examination is properly and
19 fairly admissible under that Rule, with notice, with an opportunity to put
20 -- to respond on the part of the Defence, with a further response, then,
21 invited from the other party, and then the Court, as has been indicated,
22 all three members of the Court carefully read that material and make a
23 ruling.
24 Your Honour, that sort of questioning we have today in this
25 surprising area for the Defence, as well, given that the indications as to
Page 15218
1 the area to be covered by this witness, is so far outside the ambit of
2 those normal protections and procedures for it to be -- and Your Honour, I
3 mean this in the technical sense -- objectionable; hence my objection. I'm
4 making it retrospectively but immediately, which I conceive to be the right
5 thing to do, rather than wait. Your Honours have made it perfectly plain
6 how much you dislike having interventions and objections made there and
7 then in the middle of and interrupting Your Honour's questioning, which has
8 the added drawback that it either has to be made in the presence of the
9 witness or with the witness taking his headphones off or with the witness
10 leaving court. So that's why I'm leaving it for this short interval and
11 then bringing it up, Your Honour.
12 But those are the essential points. And that whole line of
13 questioning is open to objection on those grounds. And, Your Honour, the
14 Defence does object to that whole line of questions and answers being
15 included in the evidence in this case.
16 JUDGE ORIE: Thank you, Mr. Stewart. Your objection seems to
17 touch quite clearly to basic differences in the adversarial trial structure
18 and the non-adversarial trial structure. And one of the questions raised
19 in this way is that if the Chamber wants to explore whether the witness has
20 any relevant knowledge on areas on which he's not specifically called by
21 the Prosecution, whether there would be limits on the Chamber's competence
22 to explore those areas and where the protective mechanisms that apply
23 between parties would similarly apply if the Chamber seeks to elicit
24 information from a witness, it's certainly a matter which would need proper
25 attention and reflection.
Page 15219
1 MR. STEWART: Your Honour, I certainly endorse that, Your
2 Honour, with respect. It's a serious -- it is a serious point, and I
3 apprehend that Your Honour is accepting that as such, which I appreciate.
4 JUDGE ORIE: It is accepting, as I said, it certainly is a
5 matter which would need proper attention and reflection. To that extent,
6 of course, it's accepted. I think I've been clear on that.
7 Any other issue to be raised? If not, we'll adjourn until next
8 Monday. But I have to be cautious to say whether we're sitting in the
9 morning or the afternoon.
10 [Trial Chamber and registrar confer]
11 JUDGE ORIE: Monday morning, I take it Courtroom II --
12 [Trial Chamber and registrar confer]
13 JUDGE ORIE: I'm informed that the next hearing will take place
14 next Monday in the afternoon, Courtroom II, and we'll adjourn until then.
15 --- Whereupon the hearing adjourned at 5.44 p.m.,
16 to be reconvened on Monday, the 27th day of
17 June, 2005, at 2.15 p.m.
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