9:30 – Court has been called to order.
Yesterday’s witness, Isaac Mongor, is not in the courtroom. Prosecution seeks to call a different witness, then recall Isaac Mongor to finish his testimony when the new witness is finished.
Prosecutor Brenda Hollis makes an application regarding that next witness, for whom the court has refused a closed session. After a closed session was rejected, the witness then said that he needed security for himself and his family in place before testifying in open court. Those added protection measures are only available this week and for a limited time after he returns. The witness may no longer be available after this week. The prosecution proposes that the chamber limit the prosecution’s direct examination to one day, today. The defense would be limited to cross examination of one-and-a-half days, or two days if the chamber decides to sit for a full day on Friday. Prosecutor Hollis cites precedents at the Special Court and other international tribunals, including the International Criminal Tribunal for the former Yugoslavia (ICTY). At other tribunals, judges have found that such limitations on cross examination have not infringed on the rights of the accused.
Lead Defense Counsel Courtenay Griffiths responds that the tribunal and not the parties have control over the proceedings. The prosecution cannot dictate how the proceedings are run. I have a professional duty to the accused, and I would be in breach of that duty if I were to agree before hearing testimony that my ability to cross-examine would be limited. The statutory provisions and Rules of Procedure of the Special Court for Sierra Leone. He cites rules 17, 26bis, 54, 75a, 85b, 89b and 90f of the [pdf] Rules of Procedure and Evidence [large PDF file]. The rules do not provide for limitations on the time or scope of cross examination. The chamber should focus on justice and fairness, prioritizing it over expediency and efficiency. The chamber already ruled on this in rejecting an earlier prosecution motion. That all said, we understand the prosecution’s concern for witness safety and protection, but this cannot infringe on the right of the accused to a fair trial, which includes a right to full cross-examination. The rights of the accused are paramount and should take precedence over those of witnesses and victims. Griffiths cites a decision at the ICTY (Brdjanin). Under rule 90f, the only limits that should be placed on cross examination is when the defense is wasting time by asking irrelevant or harassing questions.
Judge Lussick asks Griffiths if he is arguing that it would be appropriate for the court to limit the prosecution’s direct examination, and if he is saying that while the defense might finish its cross-examination by Friday, it should not be compelled to do so. Griffiths says this is what he is saying.
Judge Sebutinde asks Hollis why the prosecution is asking for a limit on its own direct examination. It had been estimated that direct examination of this witness would take 16 hours, and now the prosecution is proposing to cut that to 5-and-a-half hours. Hollis responds that the limits are a matter of fairness to the defense. That’s the only reason the prosecution included a self-limitation in its application.
Hollis replies to Griffiths’s arguments, saying the prosecution does not seek to dictate how the proceedings are run, but that any party may make applications for due consideration by the judges. Further, this is not a question of efficiency, but rather of fairness and justice. The witness may not return if the application is not granted. Fairness and justice have a place on both sides of the courtroom, not just one. The rights of the accused must be balanced with the rights of the victims and witnesses, as was stated in the ICTY decision cited by Griffiths.
Judge Doherty says the judges have no further questions of the prosecution or defense. They will retire to weigh the arguments and court will reconvene at 10:10, when a decision will be given.
With the delay in video and audio, this summary account will resume at 10:40.