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PROSECUTOR v ALEX TAMBA BRIMA & ORS - DECISION ON PROSECUTION TENDER FOR ADMISSION INTO EVIDENCE OF INFORMATION CONTAINED IN NOTICE PURSUANT TO RULE 92bis - Case No.SCSL-04-16-T [2005] SCSL 163 (18 November 2005)

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TRIAL CHAMBER II

DECISION ON PROSECUTION TENDER FOR ADMISSION INTO EVIDENCE OF INFORMATION CONTAINED IN NOTICE PURSUANT TO RULE 92bis

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde;

SEISED of the Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence (“Notice”);

SEISED of the Joint Defence Objections to Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence, filed 15 November 2005;

NOTING the oral application of the Prosecution on 16 November 2005 to tender the information and documents submitted in their Notice;

MINDFUL OF the Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, dated 25 October 2005[1];

CONSIDERING the Appeals Chamber’s Fofana – Decision on Appeal against “Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence”, dated 16 May 2005 (“Appeals Decision on Judicial Notice”)[2];

NOTING that Rule 89 of the Rules provides that:

(A)    The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.

(B)    In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

(C)    A Chamber may admit any relevant evidence.

NOTING that Rule 92bis of the Rules provides that:

(A) A Chamber may admit as evidence, in whole or in part, information in lieu of oral testimony.

(B) The information submitted may be received in evidence if, in the view of the Trial Chamber, it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation.

(C) A party wishing to submit information as evidence shall give 10 days notice to the opposing party. Objections, if any, must be submitted within 5 days.

CONSIDERING that Rule 89(C) vests the Trial Chamber with discretionary power to admit any relevant evidence and that the Trial Chamber has repeatedly ruled that “evidence may be excluded because it is unreliable, but it is not necessary to demonstrate the reliability of the evidence before it is admitted.”[3]

NOTING the Appeals Chamber interpretation of Rule 92bis of the Rules:

SCSL Rule 92bis is different to the equivalent Rule in the ICTY and ICTR and deliberately so. The judges of this Court, at one of their first plenary meetings, recognised a need to amend ICTR Rule 92bis in order to simplify this provision for a court operating in what was hoped would be a short time-span in the country where the crimes had been committed and where a Truth and Reconciliation Commission and other authoritative bodies were generating testimony and other information about the recently concluded hostilities. The effect of the SCSL Rule is to permit the reception of “information” – assertions of fact (but not opinion) made in documents or electronic communications – if such facts are relevant and their reliability is “susceptible of confirmation”. This phraseology was chosen to make clear that proof of reliability is not a condition of admission: all that is required is that the information should be capable of corroboration in due course.”[4]

CONSIDERING that the reliability of the evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of the context and nature of the evidence itself, including the credibility and reliability of the relevant evidence.

CONFIRMING HOWEVER that when the Trial Chamber comes to consider the reliability of the present evidence it will disregard opinion evidence and any evidence which goes to the ultimate issue, or which draws any conclusions or inferences which the Trial Chamber will have to draw, or which makes any judgments which the Trial Chamber will have to make;

NOTING that the Defence did not object to the admissibility of Documents 1, 2, 4, 7, 11, 12, 55, 56, 57, 58, 70, 78, 86, Communiqué (exhibit 57 from original Prosecution Proposed Exhibit list, filed on 26 April 2004), as listed in Annex 1 to the Notice;

FOR THE ABOVE REASONS the Trial Chamber partially grants the Prosecution application

AND ORDERS AS FOLLOWS:

1. The information contained in the following documents satisfies the requirements of
   Rule 92bis and is admitted into evidence to the extent sought in Annex 1 to the Notice:
   • (a) Documents 1, 2, 4, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29, 32, 34, 35, 38, 45, 46, 52, 53, 54, 55, 56, 57, 58, 60, 70, 77, 78, 82, 83, 85, 86, 88, 89, and Communiqué Exhibit No. 57 from the original Prosecution Proposed Exhibit List, filed on 26 April 2004;
   • (b) Documents 26 and 31, on the condition that the Prosecution files the complete documents;
   • (c) Document 81, on the condition that the Prosecution files a legible copy.
2. As regards Document 76, the information on pages 6, 12, 14 and 16 is admitted into evidence, but the information on page 2 relates to a period not relevant to the indictment
   (i.e. before 30 November 1996) and is therefore inadmissible and its tender as evidence is rejected.
3. As regards Document 79, Decrees 5/97 and 7/97 are admitted into evidence and Decree 1/97 is admitted into evidence on the condition that the Prosecution files the complete document.
4. As regards Exhibit No. 144 from the original Prosecution Proposed Exhibit List, filed on 26 April 2004 (unedited video footage, 6 January 1999), since there is nothing in the video to indicate where it was taken and no sources are identified, relevance cannot be established and its tender as evidence is therefore rejected.
5. The information admitted into evidence is allocated the Prosecution Exhibit numbers indicated in Annex A to this Order.
   

Done at Freetown, Sierra Leone, this 18th day of November 2005.

[Seal of the Special Court for Sierra Leone]

[1] Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-PT, Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence, 25 October 2005.
[2] Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-04-14-AR73, Fofana – Decision on Appeal against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence”, 16 May 2005.
[3] Prosecutor v. Brima, Kamara, Kanu, Decision on Joint Defence Application for Leave to Appeal from Decision on Defence Motion to Exclude all Evidence from Witness TF1-277, 2 August 2005, para. 6.
[4] Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-04-14-AR73, Fofana – Decision on Appeal against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence”, 16 May 2005, para. 26.