Prosecutor v Sam Hinga Norman & Ors - Dissenting Opinion of Hon. Judge Benjamin Mutanga Itoe, Presiding Judge, on the Chamber Majority Decision Supported by Hon. Judge Bankole Thompson's Separate But Concurring Opinion, on the Motion Filed by the Second (
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THE TRIAL CHAMBER
Before:
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Hon. Judge Benjamin Mutanga Itoe, Presiding Judge
Hon. Judge Bankole Thompson Hon. Judge Pierre Boutet |
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Registrar:
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Robin Vincent
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Date:
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13th Day of December, 2004.
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PROSECUTOR
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Against
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Sam Hinga Norman
Moinina Fofana Allieu Kondewa (Case No.SCSL-04-14-T) |
DISSENTING OPINION OF HON. JUDGE BENJAMIN MUTANGA ITOE,
PRESIDING JUDGE, ON THE CHAMBER MAJORITY DECISION SUPPORTED BY HON. JUDGE
BANKOLE THOMPSON’S SEPARATE BUT CONCURRING OPINION, ON THE MOTION FILED BY
THE THIRD ACCUSED, ALLIEU KONDEWA FOR SERVICE OF
CONSOLIDATED INDICTMENT AND A
FURTHER APPEARANCE
Office of the Prosecutor:
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Defence Counsel for Sam Hinga
Norman: |
Luc Côté
James Johnson |
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Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr. Tim Owen, QC Defence Counsel for Moinina
Fofana: |
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Michiel Pestman
Arrow Bockarie Victor Koppe |
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Defence Counsel for Allieu Kondewa
Charles Margai Yada Williams Ansu Lansana |
I, HON. JUDGE BENJAMIN MUTANGA ITOE, Judge of the Trial Chamber of
the Special Court for Sierra Leone, Presiding Judge of the said Chamber;
MINDFUL of the Motion for Service of Consolidated Indictment and a
Further Appearance, filed on the 4th of November, 2004,
for the 3rd Accused, Allieu Kondewa
(“Applicant”);
MINDFUL of the Prosecution Response to
Motion for Service of Consolidated Indictment and a Further Appearance, filed on
the 10th of November, 2004;
MINDFUL of the Trial Chamber’s Decision and Order on Prosecution
Motions for Joinder, including Separate Opinion of Hon. Judge Benjamin
Mutanga Itoe, dated the 27th of January, 2004;
MINDFUL of the Trial Chamber’s Decision on the First
Accused’s Motion for Service and Arraignment on the Consolidated
Indictment,
including Separate Concurring Opinion of Hon. Judge Bankole Thompson
and Dissenting Opinion of Hon. Judge Benjamin Mutanga Itoe,
dated the
29th of November, 2004;
MINDFUL of my Separate Opinion dated the 27th
day of January, 2004 on the “NATURE AND LEGAL CONSEQUENCES OF THE RULING
IN FAVOUR OF THE FILING OF CONSOLIDATED INDICTMENTS”
which is annexed to
the Chamber’s Decision also dated the 27th day of
January, 2004, granting the Prosecution’s Motion for Joinder;
CONSIDERING the provisions of the Statute of the Special Court
(“The Statute”) and particularly those of Articles 9(1), 17(2),
17(4)(a),
17(4)(b) and 17(4)(d);
CONSIDERING the provisions of Rules 26(bis), 40(bis)(J), 47, 48, 50,
51, 52, 61 and 82 of the Rules of Procedure and Evidence of the Special Court
(“The Rules”);
MINDFUL of the International Convention on Civil and Political Rights,
particularly the provisions of its Articles 9(2) and 14(3)(a);
ISSUE THE FOLLOWING DISSENTING OPINION ON THE CHAMBER MAJORITY DECISION
SUPPORTED BY HON. JUDGE BANKOLE THOMPSON’S SEPARATE
BUT CONCURRING
OPINION, RELATING TO THE MOTION FILED BY THE THIRD ACCUSED, ALLIEU KONDEWA, FOR
SERVICE AND ARRAIGNMENT ON THE CONSOLIDATED
INDICTMENT AND A SECOND
APPEARANCE.
(A) HISTORICAL BACKGROUND
- The
3rd Accused, Allieu Kondewa, was arrested on the
29th of May, 2003, on an 8 Count Individual Indictment,
dated the 26th of June, 2003, approved by His Lordship,
Hon. Judge Pierre Boutet, with virtually the same offences as those in the
indictments of
both the 1st and the
2nd Accused. He made his initial appearance before Hon.
Judge Pierre Boutet in accordance with the provisions of Rules 61(ii) and
61(iii)
of the Rules. He pleaded ‘Not Guilty’ to all the counts of
the Indictment. The number of this Indictment is SCSL-2003-12. - On
the 7th of November, 2003, the
3rd Accused, filed a motion alleging defects in the
form of the
Indictment.[1] The Trial
Chamber delivered its Decision on the 27th of November,
2003, on the said motion and ordered the Prosecution to elect either to delete
in every count and wherever they appear
in the Indictment the phrases “but
not limited to those events”, and “including but not limited
to”, or provide
in a Bill of Particulars specific additional events
alleged against the Accused in each count. Additionally, the Trial Chamber
ordered
that the Amended Indictment or Bill of Particulars be filed within 7
days of the date of service of its decision and be served on
the Accused
according to Rule 52 of the
Rules.[2] - The
introduction to the Bill of Particulars, filed on the
5th of December,
2003,[3] states that the
Prosecution stated that the Bill of Particulars contains “additional
events in support of the Counts charged
in the [Initial] Indictment.” The
Prosecution submitted that these additional events, were “an expansion of
previously
mentioned events referred to at Paragraphs 20-24 of the
Indictment” and included districts and towns within the territory of
Sierra Leone, and one reference to “road ambushes” at various
locations. - For
the purposes of this Dissenting Opinion, I adopt mutatis mutandis my
review of the historical background in my Dissenting Opinion on the Motion Filed
by the First Accused, Samuel Hinga Norman for
Service and Arraignment on the
Second Indictment, set forth in pages 3 to 6 of the same Opinion. Furthermore,
I adopt the outline
of the submissions of the parties and the applicable law as
set forth in the Decision of the Majority on this current Motion, at
pages 2 to
8 of its Decision. - For
purposes of this Dissenting Opinion, I am adopting in its entirety, the contents
of my Separate Opinion dated the 27th of January, 2004,
appended to the Chamber Joinder Decision also dated the
27th of January 2004.
(B) SERVICE OF THE CONSOLIDATED
INDICTMENT.
INTERPRETATION AND APPLICATION OF RULES 52(A) AND 52(B) OF
THE RULES
- On
arguments relating to this issue that are raised by the Applicant, it is
contended that the provisions of Rule 52 of the Rules
have been violated in that
he has not been personally served with the Consolidated Indictment as ordered by
the Chamber in its Joinder
Decision of the 27th of
January, 2004. The Chamber in this regard, it would be recalled, ordered that
“The said Indictment be served on each of
the Accused in accordance with
the provisions of Rule 52 of the Rules.” It is on record that service of
the said Indictment
was, contrary to that Order, effected instead on the
Applicant’s Counsel. - Rule
52 of Rules provides as follows:
Rule 52(A):
Service of the Indictment shall be effected personally
on the accused at the time the accused is taken into the custody
of the Special Court or as soon as possible thereafter.
Rule 52(A):
Personal service of an indictment on the accused is
effected by giving the accused a copy of the indictment approved
in accordance with Rule 47.
- The
question to be answered at this stage is whether the provisions of Rule 52 of
the Rules and the Order of the Court to this effect
were or have been complied
with. - The
Prosecution in answer to this question, clearly admits that service on Counsel
instead of on the Accused personally “was
an administrative anomaly”
which, according to them, “has caused no identifiable prejudice to
him” because, again
according to the Prosecution, the Third Accused has
demonstrated knowledge of the charges contained in the Consolidated Indictment,
as he has defended himself against these charges in the first trial session and
at the beginning of the second trial session. - These
arguments, to my mind, are neither convincing, acceptable, nor are they
sustainable, particularly in this case, and upholding
them would have the effect
of empowering one party to the proceedings, in this case, the Prosecution, to
flout the law to the detriment
of the interests of the other party, the Accused,
and his statutory right to a fair and public trial as well as to be promptly
informed
of the charges against him as guaranteed by the provisions of Articles
17(2) and 17(4)(a) of the Statute, by Rule 26(bis) of the
Rules, by Article 9(2)
of the ICCPR, and more pertinently still, by the necessary intendment,
interpretation, and the combined effects
of the application of both Rules 52(A)
and 52(B) of the Rules. - In
resolving issues of this nature, it is my opinion that a fidelity, not only to
strictly interpreting but also, strictly applying
the provisions of the Statute
or of the Rule that is alleged to have been violated, is of primary importance.
Both arms of Rule 52
of the Rules are not only clear but mandatory. They should
therefore be interpreted and applied as mandatorily as they are enacted. - It
is my considered opinion, and I do so hold, that what law and justice is all
about, for us Judges, is to uphold and to prevent
a breach of the law and to
provide a remedy for such a breach if any, and in so doing, to boldly tick right
what is right, and when
it comes to it, to equally and boldly tick wrong, what
is really wrong and in the process, to disabuse our minds of any influence
that
could misdirect us to tick right, what is ostensibly wrong, or wrong, what is
ostensibly right because it would indeed be unfortunate
for justice and the
due process if, by whatever enticing or justifying rhetoric, or by any means
whatsoever, however ostensibly
credible or plausible it may seem, we reverse
this age-long legal norm and philosophy as this would amount to rocking the very
foundation
on which our Law and our Justice stand and have, indeed, held on to,
and so firmly stood the test of times. -
The questions to be asked and to be answered directly without any justifying
rhetoric are indeed twofold; firstly, whether the said
Consolidated Indictment
was served in accordance with the provisions of Rule 52 of the Rules and
secondly, whether in execution of
the Order of the Court, the said Indictment
was served in accordance with the prescriptions of the said Order. The answer to
one
which holds good for the other, is in the negative. - It
must in this regard, be conceded that “an administrative anomaly” as
the Prosecution has rightly described the failure
to effect personal service on
the Applicant in accordance with the provisions of Rule 52(A) and 52(B) of the
Rules, was an administrative
muddle which should be put right since it is, in
itself, a violation of the law for which there must be no other judicial remedy
than declaring it illegal, annulling it accordingly, and ordering that service
of the Consolidated Indictment be effected in conformity
with the provisions of
Rules 50(A) and 50(B) of the Rules rather than resorting to advancing
interpretations or arguments of convenience which were clearly deplored in the
International Criminal
Tribunal For The Former Yugoslavia (ICTY) case of THE
PROSECUTOR V DELALIC, all in order to justify and redeem a
manifest violation of the mandatory provisions of Laws or Rules that leave no
room for the exercise of a judicial
discretion and which, in their context, are
as clear and as unambiguous as these twin Rules in question. - Our
Chamber has always taken these principles and factors into consideration and has
opted for the Literal Rule in the sphere of Statutory
Interpretation in
interpreting texts by giving them their ordinary and everyday meaning and
applying them exactly as they are written. - For
instance, in The Chamber’s Decision of the 6th of
May, 2004, on The Applicant’s Motion Against Denial By The Acting
Principal Defender To Enter A Legal Services Contract
For The Assignment Of
Counsel, Case No. SCSL-04-16-PT, commonly known as Brima - Principal Defender
Case, we refused to accept importing
extraneous interpretations to statutory
provisions or regulations which are as clear, I would say, as those of Rule 52
of the Rules,
and took the view that ‘holding otherwise would be
attributing to a very clear regulatory instrument, a strange and extraneous
interpretation and meaning
which was never envisaged’. The Chamber
in so holding, relied on the dictum of LORD HERSCHEL in the case of THE BANK OF
ENGLAND V VAGLIANO BROTHERS [1891]
AC 107 at page 144 where His Lordship had
this to say:
“I think the proper cause is in the first
instance, to examine the language of the Statute and to ask what its natural
meaning
is.”
- It
would certainly amount to attributing to a very clear regulatory instrument, a
strange and extraneous interpretation, meaning,
and application which was never
intended by the Legislator, the Regulatory Body or Authority that enacted it,
if it were ever decided
that serving a judicial process on the Accused’s
Counsel is good and justifiable when it statutorily and mandatorily should
be
served on the Accused personally. - In
our Decision on the Kondewa Motion To Compel The Production of Exculpatory
Witness Statements, Witness Summaries And Materials
Pursuant To Rule 68 of the
8th of July, 2004, a decision rendered soon after the
BRIMA PRINCIPAL DEFENDER DECISION, This Chamber had this to say on an issue that
involved the interpretation to be given to the provisions of Rule 68 of the
Rules, and I quote:
“In addressing this aspect, the Chamber
wishes to observe, by way of first principles, that no rule, however
formulated, should be applied in a way that contradicts its
purpose. A kindred notion here is that a statute or rule must not be
interpreted so as to produce an absurdity. In effect, it is rudimentary
law
that a statute or rule must be interpreted in the light of its
purpose. Another basic canon of statutory interpretation is that
a statute is to be interpreted in accordance with the legislative
intent.” Restating the law on statutory interpretation,
the Trial Chamber of the ICTY in the case of THE PROSECUTOR V. DELALIC had this
to say:
“...The rationale is that the law maker should be taken to mean
what is plainly expressed. The underlying principle which is also
consistent with common sense is that the meaning and intention of a statutory
provision shall be discerned from the plain and unambiguous expression
used therein rather than from any notions which may be entertained
as just and expedient...”
- The
absurdity in issue in this case, and what ‘may be entertained as just and
expedient’ as stated in the foregoing dicta
will be to hold that service
on his Counsel should substitute personal service on the Accused himself as
mandated by Rule 52.
- Certainly,
seeking like the Prosecution is, to justify, a flagrant violation of a mandatory
provision by submitting that the breach
has caused no “identifiable
prejudice” to the Applicant, is a cover up argument of convenience which,
in the context
of the dictum in the DELALIC CASE, is proferred only to be
accepted just for the purposes of convenience and expediency, and not
because it
is, nor is it convincing to argue, that it is in conformity with the law. - The
issue at stake here, to my mind, is not only one of interpretation but also and
equally, one of the application of the provisions
of the Regulatory Instrument
in issue. In this regard, I am of the opinion that to give effect to the
necessary intendment of the
Regulatory Body that enacted the provisions of Rule
52 as they appear in the Regulatory Instrument, they must not only be
strictly interpreted but also and equally, strictly applied. - In
this regard, LORD DENNING had this to say in the case of ROYAL COLLEGE OF
NURSING VS DEPARTMENT OF HEALTH AND SOCIAL SECURITY
[1980] AC
800:
“...Emotions run so high on both sides that I feel we as
Judges must go by the very words of the Statute without stretching
in one way or
the other and writing nothing in which is not there...”
LORD ESHER M. R., in the case of R. V JUDGE OF THE CITY OF LONDON COURT
[1892] 1 QB 273 9 CA stated that “if the words of the Act are clear,
you must follow them even though they lead to a manifest
absurdity...”
- In
the case of DUPORT STEEL VS SIRS [1980] 1AER 529 LORD DIPLOCK said
that:
“...where the meaning of the statutory words is plain
and unambiguous, it is not for the Judges to invent fancied ambiguities
as an
excuse for failing to give effect to its plain meaning because they themselves
consider that the consequences of doing so would
be inexpedient or even unjust
or immoral...”
and JERVIS CJ in the case of ABLEY VS DALE (1851) N.S. pt. 2, ol. 20,
233,235, had this to say:
“...if the precise words used are plain and unambiguous, in our
judgment we are bound to construe them in their ordinary sense, even though
it
does lead to an absurdity or manifest injustice...”
- Still
on this trend of reasoning, BLANEY J in the case of BYRNE V IRELAND [1972] IR
241, reproduced the treatise in Maxwell on the
Interpretation of Statutes
(12th Ed.) 1969 at p.29 and I
quote:
“Where by the use of clear and unequivocal language
capable of only one meaning, anything is enacted by the Legislature, it
must be
enforced however harsh or absurd or contrary to common sense the result may be.
The interpretation of a Statute is not to
be collected from any notions which
may be entertained by the Court as to what is just and expedient; words are not
to be construed,
contrary to their meaning, as embracing or excluding cases
merely because no good reason appears why they should not be embraced
or
excluded. The duty of the Court is to expound the law as it stands...”
I would say here, that our duty as Judges of this Chamber, is to expound the
law and in addition, to apply it as it is or as it is
written.
- In
light of the above, it is my considered opinion, that Rule 52 of the Rules which
mandatorily provides for the personal service
on the Accused as soon as
“the accused is taken into the custody of the Special Court”
reiterates and gives effect to
the statutory provisions of Article 17(4)(a) and
17(4)(b) which require respectively that the Accused:
“ be
informed promptly and in detail in a language which he or she understands, of
the nature and cause of the charge against
him or her” and
“have adequate time and facilities for the preparation of his or her
defence and to communicate with Counsel of his or her
own choosing.”
- It
would appear apparent therefore, as it is clear, that the Plenary of Judges of
the Special Court for Sierra Leone, the Regulatory
Authority of this Court, in
conceiving, drafting, adopting and promulgating the two arms of Rule 52 as they
are worded, was conscious
of and wanted to give effect to the preponderance of
the personal involvement of the Accused in the process as well as of the
statutorily
recognised predominance of his personal implication and that of his
choices in that process and particularity in the conduct of his
defence as
provided for in Article 17 of the Statute. -
It can therefore be deduced, that what the Plenary meant and intended in
achieving, by giving the provisions of Rules 52(A) and 52(B)
the insistent and
mandatory coloration of a personal service of the Indictment on the Accused,
which should in fact be the case,
is that a service of the Consolidated
Indictment which is the subject matter of this contention, should personally be
effected on
the Accused himself, and not on any other person, albeit, his
Counsel, and that proceeding otherwise or doing it the way it was done
in this
case, violates this clearly written Rule. - Besides,
and in addition, the directive that the service be effected personally on the
Applicant was an Order of the Court. Its execution
therefore, in the manner that
was contrary to what the Court had directed in that Order, is, in itself, a
breach of the law which
the Prosecution has implicitly acknowledged but is, at
the same time, seeking to circumvent through convenient interpretational,
procedural or administrative mechanisms and arguments which, to my mind, neither
justify nor do they redeem this fundamental breach
of the law.
(C) DIFFERENCES BETWEEN THE 3 INITIAL INDICTMENTS
AND THE CONSOLIDATED INDICTMENT AND THE ISSUE OF A REARRAIGNMENT
- The
issue that has given rise to the controversy here relates to the differences in
the contents of the 3 Initial Individual Indictments
and the Consolidated
Indictment and whether or not, depending on the nature of the differences or
changes reflected or appearing
in the Consolidated Indictment, rearraignment on
this new Indictment against the 3 accused, is an imperative. - I
would like to observe here preliminarily, that even though the Rules, in their
Rule 50, contain provisions for amending an Indictment,
there is no Rule that
institutes or regulates the phenomenon of what we are now referring to as a
Consolidated Indictment. The Rules
provide for an Indictment under Rule 47,
which should be served personally on the Accused in accordance with the
provisions of Rule
52 of the Rules. -
If the Prosecution, for any legal reason such as provided for in Rule 48 and
after the initial appearance of the Accused, seeks to
modify the already
approved Indictment, it is my opinion that it has the option of either applying
to the Trial Chamber, under the
provisions of Rule 50(A) of the Rules, or filing
a New Indictment which should necessarily involve going through the Rule 47
procedures,
particularly if it turns out that the amendments sought by the
Prosecution are substantial and in fact, contain new particulars and
new
charges. Should the Prosecution opt to apply for an amendment which contains new
charges, the provisions of Rule 50(B)(i) of
the Rules should ordinarily apply
without a further recourse to the Rule 47 procedures. - It
is necessary to recall here again that when the Prosecution presented its
Joinder Motion under Rule 48(B), it did not annex the
Consolidated Indictment to
it so as to enable the Trial Chamber to appreciate the nature and the extent of
its contents. Notwithstanding
this flaw which I highlighted as significant and
substantial in my Separate Opinion dated the 27th of
January, 2004, The Trial Chamber, without the benefit of having seen or verified
the proposed Consolidated Indictment before ruling
on this Motion, granted it
and ordered that a Consolidated Indictment be filed merely on the assurances
furnished by the Prosecution
and which they did not live up to. In these
circumstances, I was, and am still of the opinion that this Consolidated
Indictment should
have been subjected to the Rule 47 procedures since I consider
it to be a New Indictment. - The
Majority Decision of the Court overruled my point of view on this particular
issue and the Prosecution thereafter proceeded to
file directly in the Registry,
the Consolidated Indictment after the Order granting the Joinder Motion. It is
on this Consolidated
Indictment that the Trial of the Applicant, First Accused,
Samuel Hinga Norman, Moinina Fofana, the 2nd Accused,
and Allieu Kondewa, the 3rd Accused, is now
proceeding. - In
the course of examining the instant Motion for Service of Consolidated
Indictment and a Further Appearance, filed by the 3rd
Accused, the Trial Chamber, after putting the 3 Initial Individual Indictments
and the New Consolidated Indictment under scrutiny,
has come to realise that
this Indictment has made the following significant amendments and additions to
the Individual Indictment
of the 3rd Accused, Allieu
Kondewa (see underlined portions):
a). Paragraph 25(a) (CI) –
and at or near the towns of Lalahun, Kamboma, Konia, Talama, Panguma and
Sembehun;
b.) Paragraph 25(b) (CI) – and Blama;
c.) Paragraph 25(d) (CI) – in locations in Bo District including
the District Headquarters town of Bo, Kebi Town, Kpeyama, Fengehun and
Mongere;
d.) Paragraph 25(e) (CI) – in Moyamba District including Sembehun,
Taiama, Bylagao, Ribbi and Gbangbatoke;
e.) Paragraph 25(f) (CI) – in Bonthe District, including Talia (Base
Zero), Mobayeh, Makose and Bonthe Town;
f.) Paragraph 25(g) (CI) – in road ambushes at Gumahun, Gerihun,
Jembeh and the Bo-Matotoka Highway;
g.) Paragraph 26(a) (CI) – Blama, Kamboma;
h.) Paragraph 27(a) (CI) – Kenema District, the towns of Kenema,
Tongo Field and surrounding areas.
- An
analysis of the contents of the Consolidated Indictment and those of the Initial
Indictment of the Applicant, the 3rd Accused, reveals
that factual allegations have been added to the Counts of the Indictment that
are material. It is noted, however,
that the Bill of Particulars, in support of
this Indictment was filed on the 5th of December, 2003,
provides additional events in support of the Counts charged in the Initial
Indictment, and that the Initial Indictment
of the 3rd
Accused together with the Bill of Particulars contains the exact charges as the
Consolidated Indictment. - In
my Separate Opinion dated the 27th of January, 2004, in
expressing my concerns which today are very and even more legitimate, for our
failure to subject the Consolidated
Indictment to the Rule 47 judicial scrutiny
procedures, I had this to say:
“During our examination of and
deliberation on the final draft on the 23rd of January,
2004, I raised certain issues with the Learned and Honourable Brothers and
Colleagues, which I thought should be set
out as the fourth, in addition to the
three Orders we made at the tail end of our unanimous Judgement just after the
mention of
‘FURTHER CONSEQUENTIAL ORDERS.’ It was to read as
follows:
‘That the said Indictment be submitted to a designated Judge for
verification and approval in accordance with the provisions
of Rule 47 of the
Rules within 10 days of the delivery of this Decision.’
I further added that the Accused Persons had to be called upon to plead
afresh to the Consolidated Indictments. What ran through my
reasoning in making
this proposal was that the Consolidated Indictment we are ordering the
Prosecution to prepare was in fact, to
all intents and purposes, a new
indictment which needed to be subjected to the procedures outlined in Rule 47
and 61 of the Rules
of the Special Court and this, notwithstanding the fact that
all of the Accused persons already earlier made their initial appearances
and
had already been arraigned individually on the individual indictments,
which might not necessarily contain the same particulars as those in the
consolidated indictment that are yet to be served on the
Accused persons for
subsequent procedures and proceedings before the Trial Chamber.
- In
addition, I had this to say on Page 4, Paras 13-15 of my Separate
Opinion:
“The other issue which I consider important in the
present context is the submission by the Defence Counsel for Mr. Samuel
Hinga
Norman, Mr Jenkins Johnston, who argued that the anticipated consolidated
indictment should have been exhibited as part of
the Motion and that a failure
by the Prosecution to do this in order to ensure judicial scrutiny amounted to
non-compliance with
a condition precedent for the granting or even the examining
of the application for joinder. Defence Counsel for Mr. Moinina Fofana,
Mr.
Bockarie, agreed with this submission by his colleague.”
On this submission, the Prosecution replied that the Rules do not provide
for this procedure and that the Defence contention must
not be considered as a
condition precedent for the filing or granting of the application for joinder.
Our finding on this argument
in the circumstances, is, and I quote:
"...the Chamber is of the opinion that, due to the need for expeditiousness
and flexibility in its processes and proceedings...recourse
to procedural
technicalities of this nature will unquestionably impede the Special Court in
the expeditious dispatch of its judicial
business...The Chamber, therefore, does
not think that it is necessary for the Prosecution to exhibit an anticipated
consolidated
indictment...to establish a basis for
joinder."[4]
I share these views expressed in our judgment but even though we have
unanimously upheld the argument of the Prosecution in this regard,
and although
we know that the consolidated indictment is still undisclosed, I think that we
should remain resolved in our determination
and quest to steadily build up some
jurisprudence from certain shortcomings or lacunae in our Rules, which case law
will enhance,
advance, and not necessarily prejudice a proper and equitable
application or interpretation of our Rules. This will in fact encourage
the
application of the ‘Best Practices Rule’ which is neither contrary
to nor inconsistent with the general principles
of international criminal law
and procedure.”
- I
took this stand largely because I felt that the Consolidated Indictment that was
to be filed, considered only on the basis that
it was a merger of 3 Individual
Indictments involving 3 Individual Accused Persons, who in fact, had already
been arraigned individually,
was New, and particularly in the context of
apprehensions of uncertainty as to the expected content of the Consolidated
Indictment
which the Chamber neither had the privilege nor was it given the
opportunity to examine before it was filed by the Prosecution. - It
is indeed my considered opinion, even putting aside the extensive and
significant changes that the Prosecution has introduced in
the Consolidated
Indictment, that this Indictment, a product of a merger of 3 Indictments,
coupled with its altered form, is New,
and this, even if those additional
particulars or charges, which we now know of, did not feature in it. This
position is supported
by the various dictionary meanings of the word New
contained in Paragraph 23 of my Separate Opinion already referred to. - If
We as a Chamber in our Joinder Decision dated the 27th
of January, 2004, ordered that the Consolidated Indictment be assigned a new
case number and that the said Indictment be filed in
the Registry within 10 days
of the date of the delivery of our Decision, coupled with a further order for
fresh service of the said
Indictment under the provisions of Rule 52 of the
Rules, it is in my opinion, and in a sense, a recognition by the Chamber of the
novelty of this Indictment which I again say, merges and replaces the 3
Individual Indictments that had earlier been filed and given
3 different case
numbers. - In
a situation such as this, the provisions of Article 17(2), 17(4)(a) and 17(4)(b)
of the Statute including those of Rule 26 (bis)
of the Rules which guarantee to
an Accused, the right to a fair, public, and expeditious trial as well as the
right to be promptly
informed of the nature and cause of the charge against him
or her, would, in my opinion, be violated if this trial proceeds without
a
fulfilment of the legal formality of a regular personal service of the
Consolidated Indictment, on the Applicant. - In
addition, a rearraignment of the Accused on the entirety of that extensively
amended Indictment is necessary because it has now
unveiled itself and confirmed
its real designation and characterisation as a New
Indictment.
(D) WHY THEREFORE IS REARRAIGNMENT IN
THIS CASE NECESSARY?
- In
the case of R V JOHAL AND RAM, [1972] CAR, 348, The Court of Appeal of England
observed that the longer the interval there is between
arraignment and an
amendment, the more likely it is that injustice will be caused, and in every
case in which an amendment is sought,
it is essential to consider with great
care whether the accused person will be prejudiced thereby. - In
this regard, I had this to say in my RULING ON THE MOTION FOR A STAY OF
PROCEEDING IN THE FODAY SANKOH CASE, CASE
NO.SCSL-03-02-PT
“In taking this stand, I was and still
am guided by a reverence to the importance a plea occupies in a criminal trial
because it marks,
after the filing of the indictment, the actual commencement of
criminal proceedings which, in any event, cannot get underway
without a plea having been entered.”
See Page 5 line 14-17 of my Ruling dated the 27th
of July, 2003.
- In
fact, BLACKSTONE’S CRIMINAL PRACTICE, OXFORD UNIVERSITY PRESS, 2003
Edition, Page 1303 Paragraph D11.1 directs as follows:
“If
there is a joint indictment against several accused, normal practice is to
arraign them together. Separate pleas must be
taken from each of those named in
any joint Count”
- This
longstanding and respected practice directive, should, in my opinion, be adopted
and applied to this situation where the Trial
Chamber did, under Rule 48(A) of
the Rules, rightfully grant the joinder of the 3 persons who initially were
individually indicted,
but are today being jointly charged and tried. The
necessity for a rearraignment here is dictated by the fact that even though they
are charged jointly, they have to be tried as if they were, as provided for
under Rule 82 of the Rules, being tried separately, so
as to forestall a
violation of their individual statutory rights spelt out in Article 17 of the
Statute and particularly, their right
to a fair trial. - It
is my opinion that rearraignment, as the 3rd Accused is
soliciting in this case, is necessary since the Consolidated Indictment which I
hold is New. Furthermore, since arraignment
which involves reading the charges
to the Accused and explaining them to him or her should need arise, so as to
promptly acquaint
him with the charge or charges against him or her before
obtaining his or her plea is an important and vital triggering element in
any
criminal trial, it is further and also my opinion, and I do so hold, that a plea
is an equally important component of the provisions
of Article 17(4)(a) of the
Statute, when considering and determining whether the provisions of this
Article, have been respected
or have been violated. - It
was stated in the Canadian Decision of the Ontario Court of Appeal in the case
of H. M. THE QUEEN V JEFFREY MITCHELL, (1997), 121
C.C.C. (3d) 139 (ONT. C.A.),
that arraignment is intended to ensure that an accused person is aware of the
exact charges when he
or she elects and pleads and further that all parties to
the proceedings have a common understanding of the charges which are to
be the
subject matter of the proceedings which follow. - As
a follow up and to give effect to this statutory provision, Rule 47(C) of the
Rules provides as follows:
The Indictment shall contain and be
sufficient if it contains the name and particulars of the suspect, a statement
of each specific
offence of which the named suspect is charged and a short
description of the particulars of the offence.
- Furthermore,
Rule 61 of the Rules provides as follows:
Upon his transfer to the
Special Court, the accused shall be brought before the
designated Judge as soon as practicable
and shall be formally charged. The
Designated Judge shall:
(ii) Read or have the indictment read to the accused in a language he speaks
and understands, and satisfy himself
that the accused
understands the indictment;
(iii) Call upon the accused to enter a plea of guilty or not guilty on each
count; should the accused fail to do so,
enter a plea of not guilty
on his behalf.
- Rule
50 of the Rule provides as follows:
50(B)
If the amended indictment includes new charges and the accused has already
made his initial appearance in accordance with Rule 61.
50(B)(i)
A further appearance shall be held as soon as practicable to enable the
accused to enter a plea on the new charges.
- BLACK’S
LAW DICTIONARY, 7TH ED. Page 81 defines an
‘AMENDMENT OF INDICTMENT’ as:
“The alternative of
changing terms of an indictment either literally or in effect after the grand
jury has made a decision on
it. The indictment usually cannot legally be amended
at trial in any way that would prejudice the defendant by having a trial on
matters that were not contained in that Indictment”.
- In
the case of THE PROSECUTOR V KUPRESKIC, the Appeals Chamber of the ICTY held as
follows:
“the question whether an indictment is pleaded with
sufficient particularity is dependent upon whether it sets out the material
facts of the Prosecution’s case with enough detail to inform the defendant
clearly of the charges against him so that he may
prepare his
defence.”
- I
would add here that if this trial proceeds without a rearraignment and
individual pleas taken on each count of the Consolidated
Indictment and the
Accused is convicted, this trial could, on appeal, be declared a nullity by Our
Appellate Jurisdiction, The Appeals
Chamber, which could, depending on the
circumstances, quash the conviction, and enter either a verdict of acquittal, of
discharge,
or of a retrial. - In
these circumstances, I have no hesitation in concluding that the Prosecution in
introducing a Consolidated Indictment, has indeed
filed, with the leave of the
Trial Chamber, a New Indictment. Under normal circumstances, it should have been
subjected to the scrutiny
of a Designated Judge under the provisions of Rule 47.
In the alternative, the Prosecution has, in accordance with the provisions
of
Rule 50 of the Rules, and with the tacit leave of the Trial Chamber, amended
the 3 Initial Individual Indictments of the 3 Accused
persons and has merged
them into this one Consolidated Indictment. - In
either case, a combined reading of the provisions of Articles 17(2) and 17(4)(a)
of the Statute and of Rules 47(C),48(A), 50(A)
and 50(B)(i), 52(A), 52(B),
61(ii), 61(iii), and 82(A) of the Rules, clearly demonstrates and confirms the
necessity for a rearraignment
of the 3 Accused persons on the Consolidated
Indictment which, notwithstanding views to the contrary expressed in the
Majority Decision
is, and indeed, has all the characteristics of what it takes
to be a New Indictment. -
I would like to add that in law, a plea on an old Indictment is not, and should
no longer be valid, nor does it hold good any longer,
in respect of a New
Indictment. It is therefore my opinion that the pleas recorded during all the
initial appearances of the 3 Accused
Persons, are not transferable for them to
constitute a basis for proceeding on the new Indictment without going through
the obligatory
stage and formality of arraigning these same persons on the New
Indictment or which they are now being, not only jointly indicted
but also
jointly tried. - The
International Criminal Tribunal for former Yugoslavia has held the view that
where an indictment is amended or where a consolidated
indictment is prepared
and either the amended or the consolidated indictment contains new charges, it
will, as decided by the Trial
Chamber in the case of THE PROSECUTOR V
BLAGOJEVIC, (where a consolidated indictment was the document in issue), be
termed a New
Indictment. The Chamber noted as follows:
“the
Amended Indictment included new charges and the accused has already appeared
before the Trial Chamber, a further appearance
shall be held as soon as
practicable to enable the accused to enter a plea on the new charges”
- In
yet another case of THE PROSECUTOR V MARTIC, The Trial Chamber of the ICTY
arraigned the Accused on the amended indictment which
it declared to be a new
indictment. His Lordship, Hon Judge Liu had this to say in this
case:
“I will ask Madam Registrar to read out the new charges
brought against you. Then I will ask you whether you plead guilty
or not guilty
to the specific charge. Since the initial indictment has been replaced by the
amended indictment, I will ask you to
enter pleas with regard to all charges
contained in the new indictment.”
- It
has been argued that the Consolidated Indictment is not a new Indictment and
that accordingly, there should be no rearraignment
since the Accused Persons had
already been arraigned on their Initial Individual Indictments. In effect, the
Prosecution takes the
view that the Initial Individual Indictments are still
valid notwithstanding the existence of the Consolidated Indictment dated the
4th of February, 2004, on which the trial is now
proceeding. - I
of course do not subscribe to this view at all because if, as the Prosecution
contends, the 3 Individual Indictments are the same
in content as the
Consolidated Indictment, one wonders why it felt obliged to go through the
procedures of applying to replace them
with the single Consolidated Indictment,
into which the 3 Initial Individual Indictments are now all merged. In any
event, the question
should be put as to why the Prosecution is seeking to hang
on to the 4 Indictments in one proceeding involving 3 Accused Persons
who today
are jointly indicted and are being jointly tried. - In
my opinion, the Consolidated Indictment introduced after the Joinder Decision,
as an indictment which has superseded the 3 Initial
Individual Indictments
against the Accused persons, is a New Indictment. Indeed, in my Separate Opinion
on the Joinder Motion, I
expressed the view that the trimming down of the 3
indictments to form one Consolidated Indictment constituted a fundamental
amendment
to the 3 Initial Individual Indictments and that it would require
compliance with the provisions of Rule 47 followed by a rearraignment
of the
Accused Persons on the New Consolidated Indictment under the provisions of Rule
61(ii) and 61(iii) of the Rules.
THE CASE OF R. V
FYFFE AND OTHERS [1992] CLR 442
- I
have taken cognizance of the dictum in Fyffe’s Case where Their Lordships,
Russel, Douglas Brown and Wright J. J., recognised
that the general rule is that
arraignment is unnecessary where the amended indictment merely reproduces the
original allegations
in a different form, albeit including a number of new
Counts. - A
closer analytical examination of this case reveals however, that the facts and
the raison d’être of Fyffe’s decision are
distinguishable from those in the present motion. In the Fyffe case which was
decided in the Criminal
Division of the Court of Appeal, the 5 Accused
Persons/Appellants faced but a single 11 Count Indictment for drug offences.
This
Indictment was substituted by a 27 Count indictment alleging basically the
same facts as the 11 count indictment did against the
same accused persons who
had been arraigned together and jointly tried all along. Learned Counsel, Mr.
Wright, submitted that there
should have been a rearraignment on the substituted
27 Count indictment and that failure by His Lordship, The Learned Trial Judge,
to call a rearraignment, rendered the proceedings, null and void. This
submission was overruled. The Lord Justices of the Court of
Appeal had this to
say:
“In the circumstances that we have described, we are
satisfied that no more than one indictment was ever before the Court in
this Case and that what happened was an amendment of the
indictment as originally granted” and in addition, that this was
done for the convenience of Defending Counsel.
- Comparing
and distinguishing this decision with our case in hand, and very much unlike the
situation in the Fyffe Case with only one
Indictment in issue, the Norman case
has four Indictments – three individual and one consolidated in which they
are all jointly
charged and are now being jointly tried. - Let
me however observe and say here, that if in Fyffe’s case, Their Lordships
found, with only 2 exceptions which the Law Lords
considered immaterial, that
the 27 counts later preferred, reproduced what had appeared in the initial 11
count Indictment, The Allieu
Kondewa situation is clearly distinguishable from
Fyffe’s. In the latter case, it was one 11 count Indictment charging the
5
Appellants only for drug offences that was replaced by the 27 count Indictment
charging the same five indictees with the same drug
offences. -
In the Kondewa situation, 3 indictees, originally indicted on 3 Individual
Indictments, are now standing jointly charged and tried
on a Consolidated
Indictment that has replaced, stayed, and in my opinion, extinguished the 3
Initial Individual Indictments. In
addition, the records now clearly show, that
this Consolidated Indictment, unlike Fyffe’s, has introduced new
locations that
did not feature in the Initial Individual Indictment against the
Accused. In my Judgment, and as the facts have indeed established, these,
unlike in Fyffe’s case, are amendments in substance. - Their
Lordships in Fyffe’s case further had this to say:
“With
two immaterial exceptions the 27 counts reproduced what had appeared in
the 11 counts. They added no new allegations and charged no new
offences. In our judgment, there were no amendments of substance; there
were amendments of form. We are satisfied that this being the proper
interpretation of what happened the Judge gave leave to amend and it was
unnecessary to re-arraign the defendants. They had pleaded
to precisely the same
charges as were laid in the 27 counts, albeit when they were encapsulated in the
11 counts. There was no indictment to be stayed and no new indictment to
be preferred. In our view the judge was right to reject the motion to
arrest judgment.
We are fortified, Their Lordships continued, in the views we have formed by
some observations of LORD WIDGERY CJ in the case of R
V RADLEY, 58 Cr App Rep
394, 404 when His Lordship said:
“It is perfectly permissible, if an amendment is made of a
substantial character after the trial has begun and after arraignment, for
the
arraignment to be repeated, and we think that it is a highly desirable
practice that this should be done wherever amendments of any real significance
are made.
It may be that in cases like Harden (supra) where amendments are very
slight and cannot really be regarded as in any way introducing
a new element
into the trial, a second arraignment is not required, but judges in doubt on
this point will be well advised to direct
a second arraignment.”
- It
is pertinent to observe here that in Fyffe’s case, drug offences which
were the core issue. Certainly these are less significant
and indeed minor
offences, when compared to the grave charges of murders and killings for which
Fofana and his Co-Accused Persons
are indicted, and for which the due process
dictates the exercise of even more caution than the ordinary and a reinforced
posture
of scrupulousness and scrutiny in the conduct of the proceedings. - On
this issue and having regard to the nature and the gravity of the offences for
which the 3 Accused Persons stand indicted, the
necessity to strictly respect
and apply the procedural rules, and in the exercise of this judicial caution, to
order a rearraignment,
is even a more imperative obligation in order to avoid
being perceived or seen to have violated any of the fundamental rights
guaranteed
to the Accused Persons by either the Statute or the Rules of
Procedure and Evidence and particularly, their right to a fair trial
as
guaranteed under the provisions of Article 17(2) of the Statute and Rule 26(bis)
of the Rules.
(E) EFFECTS OF LACK OF ARRAINGMENT
ON THE VALIDITY OF THE PROCEEDINGS
- In
the case of R. V WILLIAMS, [1978] QB 373, it was held that a failure by the
Court to have the accused arraigned does not necessarily
render invalid,
subsequent proceedings on the indictment where the defence, as in the
Williams’s case, waives the right of
the accused to be arraigned, either
expressly or impliedly, by simply remaining silent while the trial proceeded
without arraignment.
Williams’s conviction was upheld despite a lack of
arraignment because he, being the only person in court who knew he had not
been
arraigned, raised no objection at the time. Had he objected but the court
nonetheless refused to arraign him, it is submitted
that any conviction would
have been quashed. Fofana, the Applicant in this case however, clearly objected
to his trial going underway
without his having entered a plea on the
Consolidated Indictment.
THE AMERICAN PERSPECTIVE
ON REARRAIGNMENT
- In
the PEOPLE V WALKER, [338 . 2d, 6 Cal App. 19], the California Court of Appeal
held that where an indictment is amended, regular and orderly procedure
requires that the defendant be rearraigned and be required to plead
thereon
before trial, but if the defendant makes no demand or objection
and is convicted on trial without having entered a plea, an objection that there
was no plea is waived and is unavailable to him. This case was decided
on the same rationale as the English case of R V WILLAMS (ante) - In
HANLEY V ZENOFF [398 p.2d 241 Nevada 1965], a Neveda Court held that when
an amended indictment is filed which changes materially the information to which
the defendant has entered a plea, he must be
arraigned on such amended
indictment. In McGILL V STATE, [348 f.2d 791 (1965)], it was held
that if rearraignment is necessary to avoid the possibility of prejudice,
the defendant should be arraigned. I consider, as I have already
indictated, that there is a possibility of a prejudice of an unfair trial to the
3 Accused Persons
if they are not served with and rearraigned on the
Consolidated Indictment as early as possible so as to avoid an aggravation of
the said prejudice. - In
SHIEVER V STATE [234 P.2d 921 Okla Crim. App 1951], it was held that where an
amendment to an information charges a new crime or
where the effect is to charge
a crime when the information prior to the amendment/information did not, the
defendant should be rearraigned.
(F)
ANALYSIS
- The
Applicant, 3rd Accused, Allieu Kondewa, is no
longer being charged individually but jointly in one indictment with two other
accused persons. This, in my opinion, subjects him to either a New
Indictment which, indeed, it is.
(G)
CONCLUSION
- In
the light of the above, and considering the predominantly consistent pattern of
the law and the jurisprudence relating to the issues
raised, I do find as
follows:
1) ON RULE 26(bis) OF THE RULES OF
PROCEDURE AND EVIDENCE
- Having
regard to the foregoing factual and legal analysis of the issues that have been
raised by the Applicant in this Motion, and
the provisions of Rule 26(bis) which
reads as follows:
The Trial Chamber and the Appeals Chamber shall
ensure that a trial is fair and expeditious and that proceedings before the
Special
Court are conducted in accordance with the Agreement, the Statute and
the Rules with full respect for the rights of the accused and
due regard for
protection of victims and witnesses,
I find that the following points contravene, not only the provisions of
Articles 9(1), 17(2), 17(4)(a), and 17(4)(b) of the Statute
of the Special Court
as well as those of Articles 9(2) and 14(3)(a) and 14(7) of the International
Covenant on Civil and Political
Rights, but also those of Rules 26(bis), 50, 52,
and 61 of the Rules.
(2) SERVICE OF THE INDICTMENT
- Having
granted the Joinder Motion and ordered service of the Consolidated Indictment
(which bears a new number) in accordance with
Rule 52 of the Rules, the Trial
Chamber should give effect to its own Order, consistent with the provisions of
the said Rule and
those of Rule 26(bis), as it would again, to my mind, violate
the statutory rights of the Accused, if service of the Consolidated
Indictment
were effected in a manner other than that provided for under Rule 52 on which
the Order of the Chamber was based and made. - I
say here that any action taken in violation of a mandatory provision of the law
should, of necessity, be declared null and void
even if that provision, as could
possibly be argued to justify a toleration of that violation, fails to prescribe
that remedy. This
is even the more so in criminal matters where the liberty of
the individual which is universally considered sacred, is at stake and
where, as
I have said, the necessary intendment of the enacting body of these
provisions of the Statute and of the Rules in relation thereto, is to effect
a
personal service on the Accused and on no other person in his stead. I
accordingly therefore, declare the service of the Consolidated Indictment on the
Accused’s Counsel, null and void.
(3)
DIFFERENCES BETWEEN THE INITIAL INDICTMENTS AND THE CONSOLIDATED INDICTMENT AND
THE NECESSITY FOR A REARRAIGNMENT
- In
further justifying its stand on the Consolidated Indictment, the Prosecution
argues that since the Consolidated Indictment contains
‘no new
charge’, no further arraignment is required and further,
“that as held by the Joinder Decision and referred to in the
Norman Motion, the Indictments against the Three Accused contain exactly
the
same charges(Counts).” - This
argument to me is as curious as it is misleading because we indeed could not, as
a Trial Chamber, at the time we were rendering
the Joinder Decision, arrive at
such a finding and conclusion when it is clear from the records, that we did not
have the opportunity
of seeing the Consolidated Indictment which, in my opinion,
ought to have been annexed to the Motion so as to enable Their Lordships
to
ascertain the real content of that “yet-to-be-disclosed Consolidated
Indictment”. - In
fact, we could not have arrived at such a finding because we overruled the
submission to have it annexed to the Joinder Motion
on the grounds that
“it will impede the Special Court in the expeditious dispatch of its
judicial business.” - It
would, to my mind, occasion a breach, not only of the provisions of Article
17(4)(a) of the Statute, of Articles 9(2) and 14(3)(a)
of the International
Convention on Civil and Political Rights, but also, those of the provisions of
Rules 26(bis), 47, 50, 61, 82
of the Rules, if the Accused Persons were not
individually rearraigned and a plea entered by each of them on each of the
counts in
the Consolidated Indictment, particularly within the context of, and
the necessary intendment of the promulgators of the provisions
of Rule 82(A) of
the Rules. - It
is my opinion, that the service of the indictment on the accused as well as his
arraignment on that indictment, are very important
components in the mechanism
that is, and should in fact always serve as an instrument to convey to the
accused, a clear picture of,
and a message regarding “the nature and
cause of the charge against him or her” as required by Article
17(4)(a) of the Statute. This, to my mind, is cardinal to the issues in this
case. - Consistent
with this legal position that I am stating, it cannot be said, as far as this
matter is concerned, that these statutory
provisions have been complied with
having regard to the uncertainty created in the minds of the accused persons as
to the status
of and the facts in the Initial Individual Indictments,
vis-à-vis the status of and facts contained in the ongoing Collective
Consolidated Indictment. - In
the absence therefore of a message to this effect, which is clear, certain, and
unambiguous, on the nature and content of the Consolidated
Indictment as well as
of its effective service on the Accused as stipulated in Rule 52(A) and 52(B) of
the Rules and by Our Court
Order, it is my considered opinion, that the
provisions of Article 17(4)(a) would not have been complied with. I would add
and say,
that they would indeed have been violated. - Having
regard to the above, I rule in favour of granting the
3rd Accused’s Motion on all grounds that are
canvassed in his arguments and do hold that that the Consolidated Indictment
filed
with the Unanimous Leave of The Chamber and on which the trial is now
proceeding is not only a valid, but also is a New Indictment. - In
my opinion, it is not too late for the Accused to be rearraigned on the amended
Indictment. - This
I would say, is an inherent power exercised by the Court either on its motion or
at the request of the Prosecution, since an
amendment of any kind, including the
addition or subtraction of a count, may be made at any stage of the trial,
provided that having
regard to the circumstances of the case and the power of
the Court to postpone the trial and if, as we held in the Majority Decision
dated the 2nd of August, 2004, on the
Prosecution’s Request For Leave To Amend The Indictment Against Samuel
Hinga Norman, Moinina Fofana,
and Allieu Kondewa, Case No. SCSL-04-14-T, the
amendment can be made without injustice. See also R V JOHAL AND RAM
(ante). - Accordingly,
I do make the following Orders:- That
the Prosecution immediately and forthwith, and by a written Motion, applies to
amend the said indictment under the provisions
of Rule 50 of the Rules so as to
have lawfully incorporated in the said indictment, the particulars and facts
featuring in the said
Consolidated Indictment and which are new.
- That
OR IN THE ALTERNATIVE
That the Prosecution submits the said Indictment to the verification process
provided for in Rule 47 of the Rules with a view to a
new initial appearances
for the Accused for purposes of their rearraignment on the approved and
confirmed Consolidated Indictment
under the provisions of Rules 61(ii) and
(61(iii) of the Rules.
2. That the Accused should, after the amendment is granted, be rearraigned on
the amended Consolidated Indictment before the trial
proceeds further and this,
only after some procedural formalities required or permitted by the law,
including, but not limited
to, those provided for under Rule 66 and 72 of the
Rules, as well as those related to recalling certain witnesses who have so far
already testified, if the defence so desires and makes an application to this
effect by way of a Written Motion.
3. That a personal service of the Consolidated Indictment dated the
5th of February, 2004, be immediately and personally
effected on each of the Accused Persons.
4. THAT THESE ORDERS BE CARRIED OUT.
Done at Freetown this 13th Day of December,
2004. |
||
Hon. Judge Benjamin Mutanga Itoe
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Presiding Judge
Trial Chamber [Seal of the Special Court for Sierra Leone]
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[1] Prosecutor v.
Allieu Kondewa, Case No. SCSL-03-12-PT, Preliminary Motion Based on Defects
on the Indictment against Allieu Kondewa, dated the 7th
of November,
2003.
[2]
Prosecutor v. Allieu Kondewa, Case No. SCSL-03-12-PT, Decision and Order
on Defence Preliminary Motion for Defects in the Form of the Indictment, dated
the 27th of November, 2003, para. 11; Annexure, paras
(ii), (iii).
[3]
Prosecutor v. Allieu Kondewa, Case No. SCSL-03-12-PT, Bill of
Particulars, dated the 5th of December,
2003.
[4] Decision of
27 January 2004, Supra note 1 at paragraph 11.