071123ED

Page 18154

1 into at the last minute when we saw this gap possibly developing. We have

2 identified some mistakes in that exhibit that need to be fixed before we

3 call that person.

4 JUDGE AGIUS: All right.

5 MR. McCLOSKEY: Though there is another exhibit, another book,

6 that will take -- that I could talk about briefly. It's an exhibit we

7 will be offering into evidence in one form or another, and it will take

8 court time. And we can take up -- it shouldn't take much time today, but

9 I think we could at least take up today, if you would like to, as opposed

10 to -- and save some time in the future on another exhibit for your

11 consideration.

12 JUDGE AGIUS: And that would be what?

13 MR. McCLOSKEY: The -- it's the duty officer notebook which you've

14 heard a lot of. It's now in e-court marked for identification various

15 parts of the duty officer notebook and the translations. What we have

16 done, in part, on the request of Mr. Bourgon, but on our own, is we have

17 created an exhibit that has from the 11th of July to the 23rd of July, and

18 it has the B/C/S on the left side and the English translation on the right

19 side, and we have tried to align the English translation as much as we

20 possibly could with the B/C/S original and it's a pretty high quality

21 colour photocopy. And it's just an exhibit that makes this very important

22 exhibit much easier to deal with. And we would like to -- at some point

23 -- offer it into evidence and the sooner the better so that you -- so

24 that you have it.

25 Now, it -- this exhibit can come in two forms. One form is a bit

Page 18155

1 more controversial than the other form. The form I have in front of me

2 right now is something that we've provided the Defence for a long time,

3 and it has in red marked the dates that we feel, based on the evidence,

4 the day is talking about, sometimes because it's market in the book or

5 other times someone has testified or that it can be interpreted from the

6 information in the book. We've also marked with red brackets who the

7 Prosecution believes wrote the notes. And that is based on the evidence

8 of Kate Barr, the handwriting expert. It's also based on people that

9 admitted or acknowledged that the notes were theirs. Some have testified,

10 some have not and so an investigator would go through that and if

11 necessary -- and tell you where we have relied on that.

12 This is just done so that when you're reviewing this, you don't

13 have to take the separate pieces of Prosecution evidence and try to figure

14 out who -- who we think wrote these things, and so we put it all in one

15 book. And it really makes this thing make more sense than the current way

16 it's in e-court now, and I've discussed this a bit with some counsel and

17 there are I think some objections to some of this.

18 JUDGE AGIUS: May I ask you in doing so, I take it that you would

19 be tendering that not as evidence but as a submission?

20 MR. McCLOSKEY: It could go either way. If you think it's more as

21 a submission, that's fine too, but whatever --

22 JUDGE AGIUS: Because I'm saying this because if there is a

23 controversy on the date, for example, or a controversy on the -- who was

24 the -- on the paternity of an entry in particular, that could be

25 interpreted at least from one approach as if it is testimony on the part

Page 18156

1 of the Prosecution. If they are contested, if those parts are contested.

2 MR. McCLOSKEY: I'm told that some are. So in that sense

3 submission is fine, we just thought it's the kind of thing that goes into

4 the jury room usually.

5 JUDGE AGIUS: Okay. As a submission, I would look at it from a

6 different aspect. As a submission.

7 With this -- have you finished, Mr. McCloskey, or not, yet, I'm

8 sorry, because I wouldn't like to cut you.

9 MR. McCLOSKEY: Also Mr. Haynes is not here.

10 JUDGE AGIUS: I noted that.

11 MR. McCLOSKEY: The complete translation -- there is a 2 volume

12 book, one is basically July August and the other which is fully translated

13 and then there is September-October. That's still being translated. But

14 the full translation of the both books is coming and will be also a

15 separate volume as per what we've talked about before.

16 But this is 11 July through 23 July, and most of the witnesses in

17 evidence that have talked about it. So it's as a submission is more

18 appropriate, certainly not -- we are not suggesting it's evidence in that

19 sense.

20 JUDGE AGIUS: Okay. I just wanted to pave the way for less

21 controversy basically. First caveat, we have been taken by surprise on

22 this because we were obviously not informed beforehand of this, and it may

23 well be that also the Defence teams have been taken by surprise. Is there

24 anyone of you who is prepared to stand up and comment on Mr. McCloskey's

25 proposition? Yes, Mr. Bourgon?

Page 18157

1 MR. BOURGON: Thank you, Mr. President. Indeed we are taken by

2 surprise just this morning because it was Mr. McCloskey told us earlier

3 this week that he wanted to discuss this exhibit, and then we received an

4 e-mail saying that they would not discuss the exhibit. So I don't have it

5 with me this morning because we were so informed.

6 Mr. President, we did discuss the issue with my colleague and

7 whether it is our preliminary position, and I speak for the client I

8 represent because my colleagues might have further observations, whether

9 it is as a submission or as evidence, we feel it is inappropriate for this

10 book to come in in that format. The format that my colleague is talking

11 about has indications and arguments in it, so it's not even a submission.

12 It's not like submitting something.

13 It's arguing that such a place in the book was written by a

14 definitive person and that at some point in the book there is a change of

15 date. These are in our respective view, respectful view, arguments that

16 must be made at the end of the case in its argument. I told my colleague

17 if he wants to take this book in its present form and to attach this to

18 his final brief as an argument, fine. But it's not a submission, and it's

19 not evidence, neither or both.

20 I already told my colleague where he has those red brackets I

21 disagree with him on the conclusions that he has drawn from those red

22 brackets. If this book should come in today as -- or at any time as a

23 submission, then we would have to answer this. The work that will be

24 required to answer this submission is doing at this stage what we would do

25 normally at the end of the case, and I think the right time to do this is

Page 18158

1 at the end of the case.

2 Mr. President, at the beginning of this case, right in the first

3 week, before we heard the first witness, I stood up before this Chamber

4 and I told the Trial Chamber this case is not ready to begin because we

5 need this logbook. So I cannot agree more with my colleague that the

6 translation of the logbook is required. It is something that we need, we

7 believe the Trial Chamber needs, that both parties needs. We are here

8 more than 18 months later. We still do not have a full translation of

9 these logbooks, whether it is the logbook, the notebook, the logbook, the

10 IKM book or another book. All these books, we are still missing some

11 parts of translation today and just to facilitate now we would like to

12 take a specific segment from 11 to 23 July only and to give this to the

13 Trial Chamber, we believe, Mr. President, and that's our again preliminary

14 submission, that this would be inappropriate. And we prefer simply for

15 the Trial Chamber to be given the translations that we have been asking

16 for since the beginning so that we have a full translation of the duty

17 officer notebook and a full version in B/C/S that we can compare but no

18 arguments and no submissions included in any of this material.

19 And just the last part is my colleague said two or three times

20 that this apparent exhibit would have been prepared at my request. I'm

21 sorry, maybe I forgot something, but I never requested that exhibit. I

22 may have been the first one to receive it. I recall when I was sitting in

23 his office looking at the original books, when I was given this copy, but

24 I don't think it was prepared at my request in no way. Thank you,

25 Mr. President.

Page 18159

1 JUDGE AGIUS: Yes, thank you, Mr. Bourgon. Mr. McCloskey? May I

2 ask you a question before you proceed? You said you had this book in two

3 formats, one less controversial than the other or one more controversial

4 than the other one. The one you explained, I take it, is the

5 controversial one?

6 MR. McCLOSKEY: That's what I called the teacher's edition.

7 JUDGE AGIUS: Yes. And what's the other one? Is it what

8 Mr. Bourgon --

9 MR. McCLOSKEY: It's the same thing without the red marks and just

10 to clarify, the red marks are not -- argument so much as Kate Barr

11 concludes, for example, that on this -- in the book, ERN page so and so,

12 the handwriting from the third line down to the 6th line down is X. And

13 so then we've just taken that and put that in the book so that -- just to

14 save the effort from doing that.

15 It gets slightly more interesting when we take the statement of a

16 guy, Ljubo Bojanovic, who was a duty officer, if you remember, he's dead

17 but he clearly in an interview with us stated -- pointed out where he

18 identified his handwriting. So we've put a red mark on that and put Ljubo

19 Bojanovic. So there is some hearsay in there as well, but it's mostly

20 people that acknowledge their own handwriting or it's based on Kate Barr's

21 report.

22 But we do have one that doesn't have the red marks. I think it as

23 the ERN numbers in red. But just to clarify, Mr. Bourgon, if you recall,

24 one of the early translations, the translation didn't match the number of

25 lines. It was -- didn't mirror image the translation. And Mr. Bourgon

Page 18160

1 pointed that out and asked us to see if we could fix that and so we did.

2 That was part of one of the main reasons why we did that.

3 But those are the two versions that we have and it appears we

4 don't really have that big an argument. Mr. Bourgon says it should be at

5 the end of the case. I think do we really need to wait to the end of the

6 case? If it was a two week trial no problem, but I think it would be

7 helpful for the trier of fact to have this at this time.

8 JUDGE AGIUS: Yes, thank you, Mr. McCloskey. Mr. Bourgon?

9 MR. BOURGON: Thank you, Mr. President. I think it makes a very

10 big difference to have an argument at the end or to have it now and to

11 basically use it because as they say, we always like when the Prosecution

12 is trying to teach the Trial Chamber, to teach the Defence, but in the

13 copy that we were given at the end there is kind of a summary and this

14 summary says that this specific bracket for the 12th of July, we say that

15 this is a specific duty officer and these are our reasons. And then they

16 go through the list of reasons. One of which is Kate Barr, the expert

17 handwriting, but many others are either statements or interviews, some are

18 in evidence, some are not in evidence.

19 JUDGE AGIUS: He admitted that.

20 MR. BOURGON: And that's why we feel it's not appropriate at this

21 time to get this material before the Trial Chamber. At the end they want

22 to make their argument that this line was written by Drago Nikolic on the

23 15th because for whatever reason, that's fine. Then the Trial Chamber can

24 look at the arguments at that stage and determine and give it the

25 appropriate weight.

Page 18161

1 JUDGE AGIUS: All right. When is a submission not an argument?

2 And when does an argument become a submission?

3 MR. BOURGON: First of all, the argument and the submission we

4 have to answer to it, and we are saying, Mr. President, that it is not the

5 right time to ask the Defence to answer to all of these submissions and

6 which we feel that there is a difference between the two. If you get this

7 book as a submission, then you will have to render a decision on the

8 submission. If it's a submission, then we have -- we need to be able to

9 respond to the submission and it has to be litigated.

10 JUDGE AGIUS: And wouldn't it be more beneficial to the Defence if

11 you know beforehand what position the Prosecution is taking in relation to

12 each or several parts from this duty officer's notebook?

13 MR. BOURGON: Absolutely, Mr. President. We know that. We have

14 received that book, and we know that this book where those brackets are,

15 we know where the gaps are, we know where the red brackets do not

16 represent in our view --

17 JUDGE AGIUS: Okay.

18 MR. BOURGON: -- what the position is. We think it's not the

19 right time for the Trial Chamber to get this information.

20 JUDGE AGIUS: Thank you, Mr. Bourgon. Does anyone else apart from

21 Mr. Meek who will agree with you --

22 MR. MEEK: Your Honour, thank you, Mr. President, Your Honours. I

23 understand this is not a normal court, and you're professional judges, but

24 it's obviously a final argument. And it's no place at this juncture in

25 this trial to have this submitted in any fashion. It's just obvious it is

Page 18162

1 argument.

2 I don't care if Mr. McCloskey says based on Kate Barr, what she

3 said, well, I guess on the other hand, you may have eight more copies

4 submitted to you by eight Defence counsel and eight teams here. This is

5 argument. And it's nothing else but final argument, and it should not be

6 put in front of the Court in any fashion at this time. Thank you.

7 JUDGE AGIUS: Anybody else would like to -- before I give you the

8 floor again, Mr. McCloskey, let's hear what the various Defence counsel

9 have to say. Yes, first Mr. Sarapa first and then Madam Fauveau.

10 MR. SARAPA: [Interpretation] In relation to the material we have

11 been discussing, I want to point out the following: I went through some

12 of the pages of the material, and I have to stress that some parts of the

13 logbook were misinterpreted fully. They do not give the original meaning.

14 They give something that is quite the opposite. And the material

15 in my view ought to be corrected in the sections where the contents were

16 misinterpreted -- mistranslated.

17 JUDGE AGIUS: That's another aspect which is completely different

18 from what we have been talking about. Madam Fauveau? I hope I haven't

19 ruined your weekend.

20 MS. FAUVEAU: [Interpretation] No, not at all. Not at all, Your

21 Honour. And I was just about to say that I would like to join in and

22 support the arguments put forward by Mr. Bourgon.

23 JUDGE AGIUS: Okay. Yes, thank you, Madam. Mr. McCloskey?

24 MR. McCLOSKEY: Just briefly, Mr. President, though I guess we

25 have all day. I won't do that to you of course.

Page 18163

1 JUDGE AGIUS: I'm a very patient man, Mr. McCloskey.

2 MR. McCLOSKEY: We know that. We appreciate that.

3 THE INTERPRETER: Could the speakers please slowly, please,

4 because everybody speaks the same language, thank you.

5 JUDGE AGIUS: My apologies.

6 MR. McCLOSKEY: We've provided this document weeks and weeks ago

7 with the request, please go through it, let us know if there is any

8 translation issues, any mistakes, anything you disagree with about who we

9 have concluded on, and I'm -- this is the first I've heard that there is

10 any mistakes so we'll see Mr. Sarapa -- on the translation issues. Other

11 Defence may not want to tell me where they think we are mistaken. That's

12 their right and so we are fine there.

13 I think the issue of submission obviously I think that's -- we get

14 into philosophy there which I will stay out of. And though there -- what

15 I'm hearing is an argument that sounds to me like we are back in an

16 adversarial system with a jury where the exhibits are being marked and

17 they go into evidence and they get set aside, and then when the jury goes

18 into the jury room they all go into the jury to look at it if they need to

19 see it. Of course, that just has no applicability here.

20 I don't think they are suggesting that. I can't imagine you not

21 being able to look at this evidence, evaluate the evidence, you know,

22 throughout the trial, otherwise the judgement wouldn't be able to come

23 down in -- for years. So this is just to try to make it simpler. It's

24 similar to the submission, as I think about it, regarding the intercepts.

25 We took evidence and then we backed it up. But this is even simpler in