Court name
Special Court for Sierra Leone
Case number
SCSL 14 of 2004

Prosecutor v Sam Hinga Norman & Ors - Majority Decision on the Prosecution Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecutor's Request for Leave to Amend the Indictment Against Samuel Hinga Norman, Moinina Fofan

Law report citations
Media neutral citation
[2004] SCSL 168


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
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THE TRIAL CHAMBER


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

(Case No.SCSL-2004-15-T)


DECISION ON APPLICATION FOR LEAVE TO APPEAL
GBAO
- DECISION ON APPLICATION TO WITHDRAW COUNSEL


Office of the Prosecutor:

Defence Counsel for Issa Hassan
Sesay
:
Luc Côté
Lesley Taylor

Timothy Clayson
Wayne Jordash


Defence Counsel for Morris Kallon:


Shekou Touray
Raymond M. Brown


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

THE TRIAL CHAMBER (“Chamber”) of the Special Court for
Sierra Leone (“Special Court”) composed of Hon. Benjamin Mutanga
Itoe,
Presiding Judge, Hon. Judge Bankole Thompson and Hon. Judge Pierre
Boutet;
SEIZED of the Application for Leave to Appeal Gbao –
Decision on Application to Withdraw Counsel (“Application”) filed
on
9 July 2004 by Counsel for Mr. Augustine Gbao (“Defence”) pursuant
to Rule 73(B) of the Rules of Procedure and Evidence
of the Special Court
(“Rules”) as well as the Corrigendum to Application for Leave to
Appeal Gbao – Decision on
Application to Withdraw Counsel filed on 15 July
2004;

NOTING the Response filed on behalf of the Office of the Prosecutor
(“Prosecution”) on 19 July 2004 (“Response”);

NOTING ALSO the Note on Pleadings Re Leave to Appeal Gbao - Decision
on Application to Withdraw Counsel filed by Defence on 21 July 2004 in which
the
Defence stated it would not be filing a Reply because the Prosecution supports
the Application;


CONSIDERING THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES:


I. THE MOTION

A. The Defence Submissions:

  1. Pursuant
    to Rule 73(B) of the Rules, the Defence seeks leave to file an interlocutory
    appeal in respect of the Decision of the Special
    Court on the Gbao Application
    to Withdraw Counsel dated 6 July 2004, in which the Chamber found that the
    Accused Gbao had not established
    exceptional circumstances as required by Rule
    45(E) in order to withdraw his Counsel and ordered that Counsel currently on the
    Accused
    Gbao’s Defence Team must continue to represent the Accused and
    conduct the case to its
    finality.[1]
  2. The
    Defence application is based on the assertion that there exist exceptional
    circumstances and that leave to appeal should be granted
    in order to avoid
    irreparable prejudice to a party.
  3. The
    Defence submits that exceptional circumstances that justify the desirability of
    an appeal include:
    1. The
      right to legal representation and the right to defend oneself are fundamental
      aspects of the right to a fair trial;
    2. The
      novelty of the issue in question, since the Accused wishes to defend himself
      after having employed the services of counsel throughout
      the Pre-Trial period
      and he now wants to dispense with Counsel;
    1. The
      possibility of creating new jurisprudence in international criminal procedure
      since no Appeal Chamber has been directly seized
      with the issue of the right to
      self-representation, and there have only been three cases before international
      tribunals dealing with
      the right to self-representation, each providing a
      different result and solution to the problem;
    1. The
      Trial Chamber’s decision entails implications not only for the Accused but
      for his Counsel, since it requires counsel to
      remain until the end of the case
      and does so in circumstances where they would normally be professionally
      embarrassed by the Accused’s
      refusal to provide instructions and entitle
      them to withdraw, thus placing Counsel in a difficult position; and
    2. The
      Defence’s view that the Decision impacts on all aspects of the
      Trial.[2]
  4. The
    Defence avers that if leave to appeal is not granted, it may suffer the
    following irreparable damage:
    1. A
      conviction could be based on a trial where explanations, denials and assertions
      of the Accused were never proffered because of the
      absence of the Accused, in
      combination with the refusal to provide instructions. It is the contention of
      the Defence that the fact
      that the Accused has brought this situation upon
      himself does not divert from the fact that irreparable prejudice may be caused
      for
      the purposes of Rule 73(B);
    2. The
      Defence submits that cross-examination in the absence of proper instructions
      from the Accused would render the process ineffective
      and could potentially lead
      to the wrong questions being asked, with the potential of causing prejudice not
      only to the Accused but
      to the co-Accused as well; and
    1. Prejudice
      might result from investigations and calling of witnesses that might actually
      damage the Accused’s
      case.[3]
  5. The
    Defence further submits that irreparable prejudice may arise for the Prosecution
    by virtue of its inability to cross-examine the
    defendant and the inability of
    the Prosecution witnesses to identify the
    Accused.[4]

B. The Prosecution Response:

  1. The
    Prosecution concurs with the Defence request for leave to appeal and submits
    that it merits the careful consideration of the Trial
    Chamber.[5]
  2. The
    Prosecution submits that the following exceptional circumstances would justify
    granting leave to appeal:
    1. There
      is no guiding jurisprudence on the issues of the nature of and possible
      limitations on the right to self-representation. The
      Prosecution submits that
      this, coupled with the complexity of the trial, the gravity of the crimes, the
      non-recognition of the Court
      by the Accused and the joint trial, may be
      considered exceptional;
      [6]
      and
    2. The
      failure of the Decision to address Gbao’s request to exercise his right to
      self-representation, may in itself constitute
      an exceptional
      circumstance.[7]
  3. The
    Prosecution submits that there will be irreparable prejudice to the Accused if
    leave to appeal is denied. The Prosecution assumes
    that the denial of the right
    of the Accused to represent himself entailed his resolution to abstain from the
    proceedings as well
    as his refusal to provide Defence with instructions. Based
    on this assumption, the Prosecution agrees that Defence’s conduct
    of the
    case without the instructions or presence of the Accused may entail irreparable
    prejudice.[8]
  4. The Prosecution states that the interests of justice and the principle of
    finality will best be served by a consideration of this
    matter by the Appeals
    Chamber. It also states that this will prevent the issue from constituting a
    ground for appeal at the end
    of this trial and will ensure that the integrity of
    the trial is not compromised by the Defence’s dilatory strategies or other
    frivolous actions.[9]
  5. The
    Prosecution emphasizes that granting the Motion will not delay the current
    proceedings, since applications for leave to appeal,
    in accordance with Rule
    73(B) “shall not operate as a stay of proceedings unless the Trial Chamber
    so orders.” It submits
    that the matter does not require a lengthy appeal
    procedure pursuant to Rule 117(A) which stipulates that “any appeal under
    Rules 46, 65, 73(B), 77 or 91 shall be heard expeditiously and may be determined
    entirely on the basis of written
    submissions.”[10]

II. FACTUAL BACKGROUND

  1. In
    order to address the issues raised in this Motion, this Chamber considers that
    it is imperative that the factual background in
    this case be properly examined.
  2. The
    Accused Gbao was transferred into the custody of the Special Court pursuant to
    the granting of a request from the Prosecution
    for an order under Rule
    40bis of the Rules on 20 March
    2003.[11]
  3. After
    his transfer into the custody of the Special Court, the Accused appeared before
    Hon. Judge Benjamin Mutanga Itoe as suspect
    pursuant to Rule 40bis(J) on
    21 March 2003 in order to ensure that his rights as suspect were respected. In
    that instance, the Accused was assisted by
    a duty counsel provided by the
    Defence Office.
  4. On
    21 March 2003, the Accused filed a waiver to his right to a counsel assigned by
    the Special Court pursuant to Rule 45 of the Rules
    on the basis that he decided
    to retain his own
    counsel.[12]
    Subsequently, however, on 4 April 2003 the Accused declared himself indigent and
    filed a Request for Legal Assistance seeking
    the assignment of counsel by the
    Court pursuant to Rule 45 of the Rules.
  5. On
    16 April 2003, an Indictment against the Accused was filed by the Prosecution
    and approved by Hon. Judge
    Thompson.[13]
  6. On
    23 April 2003 the Registrar issued his Decision provisionally appointing Mr.
    O’Shea as Defence Counsel for the Accused.
    Mr. O’Shea represented
    the Accused during his Initial Appearance. The provisional appointment of Mr.
    O’Shea was subsequently
    made permanent by a Decision of the Acting
    Principal Defender on 17 December
    2003.[14]
  7. Mr.
    O’Shea and other assigned Counsel have acted continuously since their
    assignment and have appeared on behalf of the Accused
    Gbao at status
    conferences, the pre-trial conference and the beginning of trial.
  8. In a letter dated 11 June 2004 that was filed with the
    Court,[15] all three
    Accused in this case indicated that they would not attend trial or enter pleas
    of guilt until such time as the application
    challenging the lawfulness of the
    Special Court that is pending before the Supreme Court of Sierra Leone is
    decided and the judgement
    rendered public.
  9. All
    Accused did, however, appear at the status conference that was held on 23 June
    2004 and at the first day of the trial on 5 July
    2004.
  10. As
    already noted in the Decision, on the first day of trial, Defence indicated that
    the Accused Gbao wished to make an opening statement.
    After legal arguments
    were heard, the Chamber ordered that the Accused Gbao could make an opening
    statement pursuant to Rule 84
    of the Rules which provides as
    follows:

At the opening of his case, each party may make an opening
statement confined to the evidence he intends to present in support of
his case.
The Trial Chamber may limit the length of those statements in the interests of
justice.

  1. On
    6 July 2004, the Chamber warned the Accused to confine his statement to an
    outline or an overview of the evidence he intended to
    present in support of his
    case in accordance with Rule 84 and allowed the Accused to proceed with his
    opening statement. Despite
    these warnings, the Accused contested the
    constitutionality and the establishment of the Special Court in his statement,
    thus covering
    areas outside of the limits of Rule 84. The Court again warned
    the Accused to refrain from making political statements. After several
    interventions and observing that the Accused resolutely persisted in making a
    political statement which is totally outside the scope
    and purpose of Rule 84,
    the Court stopped the Accused Gbao from proceeding further.
  2. The
    record shows that at this point, the Accused remarked that if he was not given
    the opportunity to make this statement, he would
    “walk out of the court
    with protest” since he did not recognize the Special Court. He did not,
    however, immediately
    leave the Court.
  3. Later,
    the Court noted that the Accused Gbao had his hand raised and suggested that the
    Defence should speak to him. After doing
    so, Defence stated that Mr. Gbao
    wanted to address the Court, not under Rule 84, but under Article 17 as he was
    raising questions
    about his representation. Defence was given the opportunity
    to consult with his client and he then stated that he believed the Court
    should
    hear representations from the Accused.
  4. When
    his request to address the Court was granted, the Accused stated the
    following:

My position in this case is very simple and since my
right under Article 17 had been denied, I have decided not to recognise this
Court. And henceforth no lawyer should appear here, should represent me, should
defend me in this Court until the African Union,
European Union and the
Commonwealth of Nations interfere into this matter so as to define... what took
place in this
country.[16]

  1. Hon.
    Judge Itoe sought confirmation that the Accused Gbao was saying that he did not
    recognise the Court and that he didn’t
    want any lawyer to appear for him
    in Court anymore and that this was the application he had made. The Accused
    Gbao responded affirmatively.
    He was then informed that the Court would give
    him a ruling on this application that afternoon.
  2. The
    following exchange then occurred between the Accused Gbao and Hon. Judge
    Itoe:

THE ACCUSED GBAO:

Yes, sir, I want to make a further application.

MR. PRESIDENT:
Will you --

THE ACCUSED GBAO:

I want to make a short statement about my standing before Your Lordship.

MR. PRESIDENT:
Yes, yes, what statement? Yes, go ahead.

THE ACCUSED GBAO:

My standing before Your Lordship, together with the other Accused, does not
bind me to them in any way from taking any independent
action deemed proper for
my defence in the interests of transparent justice.

MR. PRESIDENT:
I hope he is -- the records have got Mr. Gbao in what -- so
you think they can defend you in a way, your other colleagues in the interests
of justice?

THE ACCUSED GBAO:

In the interests of justice it does not bind (inaudible) if they want
to go their own way, let them go.

MR. PRESIDENT:
Yes.

THE ACCUSED GBAO:

I stand to defend myself, I wish to fight my – to fight this case
anyhow I see proper I will bring total
justice.[17]

  1. Before
    the Court recessed, Mr. Côté of the Prosecution sought
    clarification of whether the application from the Accused
    was to replace his
    lawyer, to have no lawyer or to represent himself. He indicated that there was
    a provision under the Rules that
    was relevant. The Hon. Judges Itoe and
    Thompson stated that they understood that the Accused Gbao was applying not to
    have any counsel
    represent him due to the fact that he did not recognise the
    Court.[18]
  2. Later
    that day, this Court delivered the Gbao Decision which is the subject of this
    Application.
  3. On
    7 July 2004, the Accused Gbao did not attend the trial proceedings. The Court
    was informed by Defence for Gbao that the Accused
    had indicated in the form of a
    written declaration that he would not be in attendance at the hearing of the
    Court on 7 July 2004
    and on succeeding days because, as he stated, he did not
    recognise the Special Court. The Accused Gbao states the following in his
    declaration:
    1. I do
      not recognise the Special Court of Sierra Leone as a properly constituted court
      of law.
    2. As
      such, I am resolved to take no part in the proceedings at the Special Court,
      since to do so would indicate recognition of the Special
      Court’s
      legitimacy as a properly constituted court of law.
    3. Further,
      and to protect the integrity of my position, I wish to dispense with the
      services of my legal representatives forthwith.
    4. Given
      that the Trial chamber of the Special Court has ordered that I should retain
      their services I will henceforward refuse to furnish
      my former legal
      representatives with any further instructions whatsoever.
    5. Further,
      I shall demand they take no active part in the proceedings before the Special
      Court whatsoever on my
      behalf.[19]
  4. In
    its Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to
    Attend Hearing of the Special Court for Sierra
    Leone on 7 July 2004 and
    Succeeding Days, this Trial Chamber ordered that:

1. In the light of
the foregoing evidence, this Court is satisfied that the Third Accused has
expressly waived his right to be present
at his trial and this Court has no
other option but to permit the joint trial of all the three Accused persons to
proceed in the
absence of the Third Accused pursuant to Rule 60(A)(i) of the
Rules and it is so ordered;

2. Pursuant to Rule 60(B) of the Rules, the Chamber also directs that Mr.
Andreas O’Shea and other Members of his team will
continue to represent
the Third Accused in accordance with the Chamber’s Decision of 6 July 2004
on his Application to Withdraw
his Counsel;

3. The Chief of the Detention Facility of the Special Court shall maintain on
a daily basis a record of the waiver of the Third Accused
to appear in court,
during each trial session of the RUF group of
indictees.[20]

  1. The
    Accused Gbao has not subsequently appeared before this Court.
  2. On
    23 July 2004, the Principal Defender forwarded a letter from the Accused Gbao
    written to the Trial Chamber
    Judges.[21] In his
    letter, the Accused Gbao reiterated his position that he did not want any legal
    counsel to appear for him before the Court.
    He also requested that the attached
    document “In Response to Trial Chamber Decision of
    6th July 2004” be forwarded to our attention.
    The said letter has not been filed with the Court and is not part of the record.
    A copy of the letter is therefore appended to this decision.
  3. The
    attached document states that the Accused Gbao has chosen to respond to the Gbao
    Decision by way of writing to the Trial Chamber.
    In this document, the Accused
    Gbao states that he stands by his decision as outlined in the declaration of 7
    July 2004 not to have
    counsel represent him. He also explains at length why he
    continues to contest the legitimacy of the Special Court for Sierra Leone.
    He
    does not, at any point in the letter, state that he wishes to represent himself
    in the trial proceedings before the Court.

HAVING DELIBERATED, THE CHAMBER DECIDES AS FOLLOWS:

III. THE TEST UNDER RULE 73(B)

  1. Rule
    73(B) of the Rules states:

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 [emphasis
added].

  1. In
    its twin Decisions on the subject of interlocutory appeals in the RUF Case and
    in the AFRC
    Case[22] where
    the Prosecution sought leave of the Trial Chamber to file an interlocutory
    appeal 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.

  1. Explaining
    the rationale behind this Rule, the Court stated:

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
[sic] 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.

  1. In
    essence, as this Chamber noted in its 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:[23]

[T]he
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.[24]

  1. As
    we noted in the Decisions of 13 February 2004, 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
    (“ICTY”) and the International
    Criminal Tribunal for Rwanda in the
    interest of expeditiousness and the peculiar circumstances of this Court’s
    limited mandate.
  2. 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 Defence, in
    their application for leave to file an interlocutory appeal, have reached or
    established that there
    are exceptional circumstances and that there would be
    irreparable prejudice.

IV. EVALUATION OF APPLICATION’S
MERIT

  1. Given
    the ambiguity of the facts that have given rise to this Application, this
    Chamber must examine the factual foundation of the
    Motion before it can properly
    assess whether the necessary elements of exceptional circumstances and
    irreparable prejudice have been
    established.
  2. It
    is clear that both the Defence Motion and the Prosecution’s Response are
    premised on the assumption that the Accused Gbao
    had made an application before
    the Court to represent himself when he sought to have his counsel withdrawn.
    This assumption is based
    on the statements of the Accused Gbao that “my
    right under Article 17 had been denied” and later that “I stand
    to
    defend
    myself”.[25]
  3. An
    examination of the entire record, however, reveals that this assertion was not
    an unequivocal assertion of the Accused’s
    right to
    self-representation.
  4. During
    his opening statement, the Accused repeatedly stated that he did not recognize
    the legitimacy of the Special Court for Sierra
    Leone. As noted above, after
    several warnings regarding the scope of Rule 84, this Chamber prevented the
    Accused from continuing
    with his statement which was purely of a political
    nature rather than dealing with factual issues. At that point, the Accused Gbao
    stated that he would walk out of the court in protest. When later given the
    opportunity to address the Court, the Accused noted
    that since his right under
    Article 17 had been denied, he decided not to recognise this Court. He then
    stated that no lawyer should
    represent or defend him.
  5. After
    confirming that the Accused Gbao was applying not to have any lawyer appear for
    him since he did not recognise the Court, this
    Chamber informed the Accused that
    it would rule on his application.
  6. Before
    the Court recessed, the Accused Gbao stated that he wanted to make a short
    statement about his standing before the Court.
    After an exchange occurred
    between the Accused and the Court, the Accused Gbao stated:

I stand
to defend myself, I wish to fight my – to fight this case anyhow I see
proper I will bring total
justice.[26]

  1. In
    the context of all of the factual background of this case, as outlined above in
    detail and as the record shows this Chamber understood
    the Accused not to be
    asserting his right to self-representation, but to be stating that he had chosen
    not to participate in the
    trial proceedings since he did not recognise the
    Special Court.
  2. This
    interpretation was confirmed by the subsequent actions of the Accused. As he
    had threatened to do both in the letter dated 11
    June 2004 and orally on 6 July
    2004, the Accused Gbao chose not to attend proceedings on 7 July 2004 or on any
    subsequent date.
    In the documents that he addressed to the attention of the
    Trial Chamber on 23 July 2004, the Accused Gbao confirmed that he still
    does not
    want to have counsel represent him. He explained that he continues to contest
    the legitimacy of the Special Court, and
    did not, at any point, state that he
    wishes to represent himself before the Court.
  3. Thus,
    this Chamber finds that the Accused Gbao has not actually made a request to
    represent himself in the trial proceedings before
    the Court.
  4. Having
    so found, this Chamber is cognisant of the importance of the right of an accused
    person to self-representation. Article 17(4)(d)
    of the Statute of the Special
    Court for Sierra Leone states that every accused is entitled:

To be
tried in his or her presence, and to defend himself or herself in person
or through legal assistance of his or her own choosing; to be informed, if he or
she does not have legal assistance, of this right,
and to have legal assistance
assigned to him or her, in any case where the interests of justice so require,
and without payment by
him or her in any such case if he or she does not have
sufficient means to pay for it [emphasis added].

  1. In
    this regard, the Chamber refers to its Decision on the Application of Samuel
    Hinga Norman for Self Representation Under Article
    17(4)(d) of the Statute of
    the Special Court[27]
    in which the Trial Chamber examined a request by the Accused Norman to represent
    himself. This Chamber held that the Accused has
    a right to self-representation,
    but that such a right is qualified and not absolute and can be derogated from
    should the interests
    of justice dictate. The Accused Norman continues to
    represent himself in the trial proceedings with the assistance of standby
    counsel.
    The distinction to be drawn here, however, is that while the Accused
    Norman made a clear, unambiguous and written application for
    self-representation
    in accordance with the prescribed Rule, the Accused Gbao, for his part, has not
    actually made any such a request
    with the clarity that is supposed to accompany
    it.
  2. The
    Accused Gbao’s decision not to recognise the Special Court,
    notwithstanding the Appeals Chamber’s Decision on
    Constitutionality[28]
    and its Decision on Preliminary Motion on Lack of Jurisdiction: Establishment of
    Special Court Violates Constitution of Sierra Leone,
    does not make this issue
    any clearer. In fact, it renders it more uncertain as to what his intentions
    really were.
  3. As
    noted above, in order to grant leave to file an interlocutory appeal, this
    Chamber must be satisfied that both exceptional circumstances
    and irreparable
    prejudice have been established.
  4. Both
    the Defence and Prosecution have submitted that exceptional circumstances exist
    in this case due to the very nature of the request
    by an accused to exercise his
    right to self-representation and, we add, the appointment of standby counsel by
    the Court. They also
    point out that a decision of the Appeals Chamber on the
    issues of self-representation and withdrawal of counsel could provide useful
    guidance on very complex and important issues.
  5. This
    Chamber agrees that the right of an accused to represent him or herself is a
    fundamental right and an essential component of
    due process. It is also
    cognisant that there is no appellate case law in international criminal fora
    that have addressed the important
    issues of withdrawal of counsel and
    self-representation of accused persons and that could provide guidance on this
    matter. Viewed
    from this perspective, the results of the proposed appeal would
    be “of general importance... in international
    law”.[29]
  6. While
    the Chamber has found that the Accused Gbao had not clearly stated that he
    intended to exercise his right to self-representation,
    the Chamber discerns from
    the pronouncements of the Accused Gbao that there might be an implied intention
    to defend himself. In
    the circumstances and out of an abundance of caution, the
    Chamber is of the opinion that this could well be what the Accused was
    really
    intending when he made his comments to the Court.
  7. Having
    regard to the foregoing and in the interests of justice, we find that the issues
    raised in the submissions are of a fundamental
    nature and constitute exceptional
    circumstances. Moreover, a decision from our Appeals Chamber would provide
    useful guidelines for
    the future in such situations and would contribute to the
    advancement of the jurisprudence of international criminal law on the very
    important issues raised, this time, in total agreement by the rarely concordant
    choruses of the Prosecution and the Defence.
  8. The
    Defence and Prosecution have also submitted that irreparable prejudice will
    occur if leave is not granted to appeal the Gbao Decision.
    Since the Decision
    was delivered, the Accused Gbao has not attended trial proceedings. He has also
    chosen not to provide instructions
    to his counsel who continue to represent him
    in accordance with the Court’s order.
  9. This
    Chamber acknowledges that the conduct of the Accused has placed Defence Counsel
    in a difficult position since, as they have stated,
    they would normally be
    professionally embarrassed by the Accused’s refusal to provide
    instructions which could, inter alia, serve in enhancing their
    cross-examination of Prosecution witnesses and eventually the
    examination-in-chief and re-examination of
    Defence witnesses. While the Chamber
    does note that the Accused has chosen not to recognise the Special Court and has
    accordingly
    decided neither to attend proceedings nor to instruct Counsel, it
    accepts that irreparable prejudice may arise in these circumstances
    if leave to
    appeal were not granted.
  10. In
    conclusion, therefore, the Chamber finds that both the exceptional circumstances
    and the irreparable prejudice prongs of the test
    for leave to file an
    interlocutory appeal have been met in this Application.

FOR
THESE REASONS:


THE TRIAL CHAMBER ALLOWS THIS APPLICATION AND ACCORDINGLY

Grants the Defence leave to file an interlocutory appeal against Gbao –
Decision on Application to Withdraw Counsel dated 6
July 2004.


Done at Freetown this 4th day of August,
2004

Hon. Judge Pierre Boutet

Hon. Judge Benjamin Mutanga Itoe


Presiding Judge,
Trial Chamber


[Seal of the Special Court for Sierra Leone]


Hon. Judge Thompson will append a dissenting opinion to this Decision.


[1] Prosecutor v.
Sesay et al
., Case No. SCSL-2004-15-T, Gbao – Decision on Application
to Withdraw Counsel, 6 July 2004 (“Gbao
Decision”).
[2]
Motion, para. 6.
[3]
Id., para.
7.
[4] Id.,
para. 8.
[5]
Response, para.
15.
[6] Id.,
para. 9.
[7]
Id., para.
10.
[8] Id.,
para. 11.
[9]
Id., para. 12.

[10] Id.,
paras 13 and 14.

[11] Prosecutor
v. Gbao
, Case No. SCSL-03-09-PD, Order for Transfer and Provisional
Detention Pursuant to Rule 40(J). The Accused was at that point in time
detained
by the authorities of the Government of Sierra Leone pursuant to a request made
to them by the Prosecution under Rule 40
of the
Rules.
[12]Waiver
of the Right to Counsel, 21 March 2003. See also Order for Provisional
Detention, 22 March
2003.
[13]Decision
Approving the Indictment, 16 April 2003; Order Confirming Prior Arrest and
Transfer and Ordering Continued Detention, 16
April 2003. The Accused held his
Initial Appearance pursuant to Rule 61 on 25 April 2003 before Judge Thompson,
pleading not guilty
on each and all counts contained in the then Indictment
against him;
[14]
Decision, 27 January
2004.
[15]
Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Letter Re Issa
Hassan Sesay, 11 June
2004.
[16]
Prosecutor v. Sesay et al., Case No. SCSL-2004-15-T, Transcripts of open
session proceedings of 6 July 2004 at
34.
[17]
Id., at
35.
[18]
Id., at
36.
[19]
Prosecutor v. Sesay et al., Case No. SCSL-2004-15-T, Exhibit
1.
[20]
Prosecutor v. Sesay et al., Case No. SCSL-2004-15-T, Ruling on the Issue
of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the
Special
Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004,
para. 12.
[21]
Annex
A.
[22]Prosecutor
v. Sesay et al
., Case No. SCSL-2004-15-PT, Decision on Prosecutor’s
Application for Leave to File and Interlocutory Appeal against the Decision
on
the Prosecution Motions for Joinder, 13 February 2004 and Prosecutor v. Brima
et al
., Case No. SCSL-2004-16-PT, 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”).
[23]
Prosecutor v. Sesay et al., Case No. SCSL-2004-15-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, 1 June
2004.
[24]
Id., at para. 21.

[25] Motion, para.
4; Response, footnote 1.

[26] Transcripts,
supra note 16 at
35.
[27]
Prosecutor v. Norman et al., Case No. SCSL-2004-14-T, Decision on the
Application of Samuel Hinga Norman for Self Representation Under Article
17(4)(d) of the
Statute of the Special Court, 8 June 2004. This decision was
delivered orally. See also the subsequent decision in this case, Consequential
Order on Assignment and Role of Standby Counsel, 14 June
2004.
[28]
Prosecutor v. Kallon, Case No. SCSL-2004-15-PT, Prosecutor v.
Norman
, Case No. SCSL-04-14-PT, and
Prosecutor v. Kamara, Case No. SCSL-2004-16-PT
, Decision on
Constitutionality and Lack of Jurisdiction, 13 March
2004.
[29] Prior
version of Rule 73(B) of the Rules of Procedure and Evidence of the ICTY.