Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004

Prosecutor v Alex Tamba Brima & Ors - Decision on Prosecution Application for Leave to File an Interlocutory Appeal Against Decision on Motion for Concurrent Hearing of Evidence Common to Cases Scsl-2004-15-pt and Scsl-2004-16-pt (SCSL 16 of 2004) [2004]

Law report citations
Media neutral citation
[2004] SCSL 119


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

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295996


THE TRIAL CHAMBER


Before:
Judge Bankole Thompson, Presiding Judge
Judge Benjamin Mutanga
Itoe
Judge Pierre Boutet
Registrar:
Robin Vincent
Date:
1 June 2004
PROSECUTOR
Against
Issa Hassan Sesay
Morris Kallon
Augustine
Gbao

(Case No.SCSL-04-15-PT)


DECISION ON PROSECUTION APPLICATION FOR LEAVE TO FILE AN
INTERLOCUTORY APPEAL AGAINST DECISION ON MOTION FOR CONCURRENT HEARING OF
EVIDENCE COMMON TO CASES SCSL-2004-15-PT AND SCSL-2004-16-PT


Office of the Prosecutor:
Luc Côté
Robert
Petit

Defence Counsel for Issa Hassan
Sesay
:
Tim Clayson
Wayne Jordash



Defence Counsel for Morris Kallon:


Shekou Toure


Defence Counsel for Augustine
Gbao
:
Girish Thanki
Andreas O’Shea


THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court
for Sierra Leone (“Special Court”), composed of Judge Bankole
Thompson,
Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre
Boutet;
NOTING the Decision on the Prosecution Motion for Concurrent
Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT
(“Decision”)
of 11 May 2004;

SEIZED of the Application for Leave to File an Interlocutory Appeal
against the Decision on the “Prosecution’s Motion for Concurrent
Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT
(“Application”) filed by the Office of the Prosecutor
(“Prosecution”) on 14 May 2004;

RECALLING the Court’s Decision and Order on Prosecution Motions
for Joinder dated 27 January 2004 in respect of Accused Issa Hassan Sesay,
Alex
Tamba Brima, Morris Kallon, Augustine Gbao, Brima Bazzy Kamara and Santigie
Borbor Kanu (“Joinder Decisions”) in
which it ordered the joint
trial of Issa Hassan Sesay, Morris Kallon and Augustine Gbao of the RUF
(“RUF Case”) and a
separate joint trial of Alex Tamba Brima, Brima
Bazzy Kamara and Santigie Borbor Kanu of the AFRC (“AFRC
Case”);
NOTING the Order for Expedited Filing of 17 May
2004;

NOTING the Response to the Application filed by Defence Counsel for
Morris Kallon on 19 May 2004 (“Kallon Response”);

NOTING the Response to the Application filed by Defence Counsel for
Augustine Gbao on 20 May 2004 (“Gbao
Response”);

NOTING the Response to the Application filed by the Defence Counsel
for Issa Hassan Sesay on 21 May 2004 (“Sesay Response”);

NOTING the Consolidated Reply to the responses filed by the
Prosecution on 24 May 2004 (“Consolidated Reply”);

NOTING THE SUBMISSIONS OF THE PARTIES:


A. The Prosecution Motion

  1. Pursuant
    to Rule 73(B) of the Rules of Procedure and Evidence (“Rules”), the
    Prosecution seeks leave to appeal against
    the Decision of this Chamber denying
    the Prosecution’s Motion for Concurrent Hearing of Evidence in the RUF and
    AFRC Cases
    on the basis of exceptional circumstances and irreparable prejudice.
    The Prosecution states that if granted leave, it will argue
    that the Decision
    contains errors and misconceptions in law by the Trial
    Chamber.[1]
  2. On
    the issue of exceptional circumstances, the Prosecution argues that pursuant to
    the Decision over one hundred and fifty witnesses
    will have now to testify twice
    in court, in separate trials, to exactly the same facts, and that this will
    happen in a relatively
    short period of time and before a court which is located
    in the country where the violations that such witnesses will be called to
    give
    testimony about took place. The Prosecution further contends that all these
    witnesses, including women and children subjected
    to sexual abuses and
    mutilations, will hence re-live their trauma and undergo additional
    cross-examinations of their
    experiences.[2]
  3. In
    addition, the Prosecution submits that the Decision will cause irreparable
    prejudice to its case. As a result of the hardships
    and risks involved in
    testifying before the court, the Prosecution contends that some witnesses will
    then refuse to appear for the
    second trial for the purposes of testifying. This,
    the Prosecution concludes, will cause loss of evidence that will not only entail
    great detriment to the ascertainment of the truth and the fairness of the
    judicial process, but, indeed, will also cause irreparable
    prejudice to the
    Prosecution’s
    case.[3]

B. The
Defence Responses

  1. In
    their responses, each of the Defence Counsel submits that the Application should
    be rejected on the grounds that it does not meet
    the test provided for in Rule
    73(B) of the Rules, namely, exceptional circumstances and irreparable prejudice
    to the Prosecution’s
    case.

The Kallon
Response

  1. The
    Defence submits that the trial of the AFRC Case is separate and distinct from
    the trial of the RUF Case, for which a date for
    the commencement of the trial
    has already been set. The Prosecutor is therefore obliged to show exceptional
    circumstances and irreparable
    prejudice in respect of each case and separately
    from each other, which it failed to do in the
    Application.[4]
  2. Further,
    the Defence submits that the Decision is based on the Trial Chamber’s
    exercise of discretion based on an assessment
    of the practical effect of the
    possibility of a concurrent hearing of evidence and a resolution of such
    discretion by the Appeals
    Chamber will not materially advance the
    proceedings.[5]
  3. Finally,
    the Defence also submits that the Prosecution has not advanced any new arguments
    in its Application, but rather has barely
    reaffirmed arguments upon which the
    Trial Chamber has already deliberated in its
    Decision.[6]

The
Gbao Response

  1. With
    particular reference to the Prosecution’s arguments on exceptional
    circumstances, the Defence submits that the Prosecution
    has failed to establish
    the exceptionality of the case of a witness called to give evidence twice in two
    separate trials. The Defence
    in facts submits that this is invariably the case
    where there are a series of trials arising out of the same political conflict
    and,
    albeit protective measures for witnesses cannot provide for a specific
    figure on the identity of the various witnesses, this situation
    must arise in
    international criminal cases where the same general factual context gives rise
    to a number of individuals in different
    trials.[7]
  2. In
    addition, the Defence contests the argument that the witnesses will now,
    following the Decision, have to be cross-examined again,
    because the total
    number of cross-examinations will not increase by proceeding with a separate
    hearing of evidence but rather always
    corresponds to the total number of the
    accused involved in the trials and entitled to examine a
    witness.[8]
  3. In
    the case of irreparable prejudice to its case, the Defence contests any
    prejudice to the Prosecution due to the large number of
    witnesses to be called
    and due to the system of witness protection that should ensure the security of
    the witnesses whenever call
    to
    testify.[9]
  4. In
    addition, the Defence submits that the Prosecution can always apply to seek the
    specific evidence of particular witnesses to be
    heard concurrently if it can
    show special justification, rather then applying for a blanket ruling on more
    than half of the witnesses
    contained in their initial witness
    list.[10]

The
Sesay Response

  1. Defence
    Counsel for Sesay asserts that the Application simply reiterates the
    Prosecutions arguments presented in connection with the
    Joinder Decisions and
    with the Decision itself and does not provide any further evidentiary detail or
    arguments that might allow
    proper adjudication.

C. The
Consolidated Reply

  1. In
    its Reply, the Prosecution rebuts the Defence assertions that the Application
    does not satisfy the requirement of exceptional circumstances
    and irreparable
    prejudice of Rule 73(B) of the Rules.
  2. In
    particular, the Prosecution also reasserts that for both the RUF and the AFRC
    Cases there will be over a hundred and fifty witnesses,
    subjected to
    extraordinary security and mental conditions and due to testify in the same
    environment were the alleged crimes were
    committed. The denial of the
    possibility to hear such witnesses concurrently, in its view, will require
    witnesses to appear in court
    twice and might increase the risk of refusals from
    certain witnesses to testify for a second time. According to the Prosecution
    these
    amount to exceptional
    circumstances.[11]
  3. In
    addition, the Prosecution submits that the previous resolution of the Trial
    Chamber of the Motion for leave to appeal the Joinder
    Decision is irrelevant for
    the Application as joinder and concurrent hearings of evidence are two
    completely different issues and
    measures.[12]
  4. With
    particular reference to the submissions made in the Gbao Response on the
    possibility for the Prosecution to seek specific applications
    for the concurrent
    hearing of particular witnesses, the Prosecution submits that such an
    ad hoc” approach is undesirable, as “would frustrate
    an orderly organization of the trial process and would be against the interest
    of judicial economy” as the Prosecution would have to submit individual
    motions for over one half of its
    witnesses.[13]

HAVING
DELIBERATED THE CHAMBER DECIDES AS FOLLOWS:

Introduction

  1. This
    Motion once more confronts the Court with the vexed question of one of the
    criminal law’s recurring themes, both nationally
    and internationally,
    namely, interlocutory appeals.

Order Requested

  1. In
    more specific terms, as anticipated in the section above dedicated to the
    Prosecution submissions, the present Application seeks
    leave of this Trial
    Chamber to appeal against its Decision on the Prosecution Motion for Concurrent
    Hearing of Evidence Common to
    Cases SCSL-2004-15-PT and SCSL-2004-16-PT of 11
    May 2004.

Legal Basis For the Motion

  1. The
    Prosecution’s Motion is filed pursuant to Rule 73(B) of the Rules. Rule
    73(B) is in these terms:

“Decisions rendered on such motions
are without interlocutory appeal. However, in exceptional circumstances and to
avoid irreparable
prejudice to a party, the Trial Chamber may give leave to
appeal. Such leave should be sought within 3 days of the decision and shall
not
operate as a stay of proceedings unless the Trial Chamber so orders.”

Applicable Jurisprudence

  1. In
    its twin seminal Decisions on the subject of interlocutory appeals in the RUF
    Case and in the AFRC
    Case[14] where
    the Prosecution sought leave of the Trial Chamber to appeal interlocutorily
    against its Joinder Decisions in respect of the
    aforementioned cases, this
    Chamber took the opportunity to articulate the principles governing applications
    of this nature.
  2. Emphasising
    that Rule 73(B) of the Rules generally does not confer a right of interlocutory
    appeal but only grants leave to appeal
    in exceptional cases, the Chamber opined
    as follows:

“As a general rule, interlocutory decisions are
not appealable and consistent with a clear and unambiguous legislative intent,
this rule involves a high threshold that must be met before this Chamber can
exercise its discretion to grant leave to appeal. The
two limbs of the test are
clearly conjunctive, not disjunctive; in other words, they must both be
satisfied.”

Explaining the rationale behind this Rule, the Court had this to say:

“This interpretation is unavoidable, given the fact that the second
limb of Rule 73(B) was added by way of an amendment adopted
at the August 2003
Plenary. This is underscored by the fact that prior to that amendment no
possibility of an interlocutory appeal
existed and the amendment was carefully
couched in such terms so as only to allow appeals to proceed in very limited and
exceptional
situations. In effect, it is a restrictive provision.”

In essence, the purport of our Decisions of 13 February 2004 can be put this
way: that the overriding legal consideration in respect
of an application for
leave to file an interlocutory appeal is that the applicant’s case must
reach a level of exceptional
circumstances and irreparable prejudice. Nothing
short of that will suffice having regard to the restrictive nature of Rule 73(B)
of the Rules and the rationale that criminal trials must not be heavily
encumbered and consequently unduly delayed by interlocutory
appeals.

  1. As
    we noted in those Decisions, our test for granting leave to file interlocutory
    appeals is more restrictive in comparison with that
    applied by International
    Criminal Tribunal for the former Yugoslavia and the International Criminal
    Tribunal for Rwanda in the interest
    of expeditiousness and the peculiar
    circumstances of this Court’s limited mandate. Based on the foregoing
    restatement of the
    applicable principles of law, we now proceed to address the
    key question for determination that is, whether the Prosecution’s
    case for
    leave to file an interlocutory appeal reaches the level of exceptional
    circumstances and irreparable prejudice. This goes
    to the merit of the
    application.

Evaluation of Application’s Merit

  1. It
    is significant to note that the Prosecution’s case in support of the
    “exceptional circumstances” prong of the
    test is predicated upon two
    averments or assumptions, namely, (i) that over one hundred and fifty witnesses
    will have to testify
    twice in two separate trials in a relatively short duration
    to the same facts, and (ii) that of the witnesses re-living trauma during
    cross-examination. The Chamber fails to see how the fact that one hundred and
    fifty witnesses will have to testify in two separate
    trials in a relatively
    short period of time to the exact same facts which constitute the most atrocious
    violations of international
    criminal law to which they were victims or
    witnesses, as alleged by the Prosecution, before a court located in the country
    where
    the violations, allegedly took place coupled with, as the Prosecution
    submits, the likelihood of re-traumatization do constitute
    “exceptional
    circumstances” for the purposes of Rule 73(B) of the Rules especially in
    the light of the Chamber’s
    analysis at paragraphs 34-39 of the Decision in
    question. In what lies the exceptionality, considering the entitlement in law of
    each accused to a separate trial barring a joinder decision? These contingencies
    may create some inconveniences and hardships but
    do not, singly or cumulatively,
    amount to “exceptional circumstances” in the context of Rule 73(B)
    of the Rules, taking
    into account the Orders for witnesses’ protective
    measures[15] and the
    expert services of the Victims and Witnesses Unit of the Special Court including
    the psychological counselling component
    of such services. The claim of
    “exceptional circumstances” by the Prosecution is legally
    unsustainable, and therefore
    fails.
  2. Consistent
    with our Decisions of 13 February 2004 on the issue of leave to file an
    interlocutory appeal, we do not think it necessary
    or appropriate to examine the
    merits of the Prosecution’s submissions on “irreparable
    prejudice”, having found
    that there has not been a showing of
    “exceptional circumstances” especially since the test is conjunctive
    and not disjunctive.

DISPOSITION

  1. For
    the foregoing reasons and considerations, the Trial Chamber hereby denies the
    Application.
Done at Freetown this 1st day of June 2004

Judge Bankole Thompson

Judge Benjamin Mutanga Itoe

Judge Pierre Boutet
Presiding Judge,
Trial Chamber



[Seal of the Special Court for Sierra Leone]



[1] Application,
paras 3-10.
[2]
Id., paras
12-14.
[3]
Id., paras 15-17. In addition, the Prosecution reaffirms its arguments as
stated in its Application for Leave to File an Interlocutory
Appeal against the
Trial Chamber’s Decision of 27 January 2004, 3 February
2004.
[4] Kallon
Response, para.
9.
[5] Id.,
paras 11 and 13.
[6]
Id., para.
12.
[7] Gbao
Response, para.
2.
[8] Id.,
para. 3.
[9]
Id., paras
4-5.
[10]
Id., para.
7.
[11]
Consolidated Reply, paras
8-12.
[12]
Id., para.
13.
[13]
Id., para.
17.
[14] Decision
on Prosecutor’s Application for Leave to File and Interlocutory Appeal
against the Decision on the Prosecution Motions
for Joinder,13 February 2004
(“Decisions of 13 February
2004”);
[15]
Prosecutor v. Issa Hassan Sesay, SCSL-2003-05-PT, Decision on the
Prosecutor’s Motion for Immediate Protective Measures for Witnesses and
Victims and for Non-Public
Disclosure, 23 May 2003; Prosecutor v. Morris
Kallon
, SCSL-2003-07-PT, Decision on the Prosecutor’s Motion for
Immediate Protective Measures for Witnesses and Victims and for Non-Public
Disclosure, 23 May 2003; Prosecutor v. Augustine Gbao, SCSL-2003-09-PT,
Decision on the Prosecution Motion for Immediate Protective Measures for
Witnesses and Victims and for Non-Public
Disclosure, 10 October 2003.