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PROSECUTOR v ISSA HASSAN SESAY & ORS - DECISION ON DEFENCE APPLICATIONS FOR LEAVE TO APPEAL RULING ON THE 3rd OF FEBRUARY, 2005 ON THE EXCLUSION OF STATEMENTS OF WITNESS TF1-141 - Case No. SCSL-2004-15-T [2005] SCSL 51 (28 April 2005)

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THE TRIAL CHAMBER I

DECISION ON DEFENCE APPLICATIONS FOR LEAVE TO APPEAL RULING OF THE 3rd OF FEBRUARY, 2005 ON THE EXCLUSION OF STATEMENTS OF WITNESS TF1- 141

TRIAL CHAMBER I (“The Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Benjamin Mutanga Itoe, Presiding Judge, Hon. Justice Bankole Thompson, and Hon. Justice Pierre Boutet;

MINDFUL of the Ruling on Oral Application for the Exclusion of Statements of Witness TF1-141 Dated Respectively 9th of October, 2004, 19th and 20th of October, 2004, and 10th of January, 2005 rendered on the 3rd of February, 2005 (“Ruling”);

SEIZED of the Application for Leave to Appeal – Ruling (3rd February 2005) on Oral Application for the Exclusion of Statements of Witness TF1-141 Dated Respectively 9th of October, 2004, 19th and 20th of October, 2004, and 10th of January, 2005 filed by Defence Counsel for the First Accused, Issa Hassan Sesay on the 7th of February, 2005 (“Sesay’s Application”) and of the Application for Leave to Appeal Ruling of 3.2.05 Following Oral Application for Exclusion of Statements of TF1-141 Dated 9.10.04, 19 and 20.10.04, 10.1.05 filed by Defence Counsel for the Third Accused, Augustine Gbao, on the 9th of February, 2005 (“Gbao’s Application”);[1]

MINDFUL of the Consolidated Response to the Applications, filed by the Office of the Prosecutor (“Prosecution”) on the 16th of February, 2005 (“Consolidated Response”);

MINDFUL of the Defence Reply to the aforesaid Consolidated Response, filed by Counsel for the First Accused, Issa Hassan Sesay, on the 18th of February, 2005 (“Sesay’s Reply”);

MINDFUL of the Defence Reply to the aforesaid Consolidated Reply, filed by Counsel for the Third Accused, Augustine Gbao, on the 21st of February, 2005 (“Gbao’s Reply”);

PURSUANT to the provisions of Article 17 of the Statute of the Special Court (“Statute”) and Rules 66 and 73(B) of the Rules of Procedure and Evidence (“Rules”);

RECALLING our Oral Decision of the 12th April 2005 refusing leave to appeal against the aforesaid Ruling of the 3rd of February, 2005 by the Defence Counsel for First and Third Accused respectively;

HEREBY ISSUES THE FOLLOWING WRITTEN REASONED DECISION:

I. SUBMISSIONS OF THE PARTIES

A. The Motion

1. The Defence submit that the Chamber erred in law in its Ruling and, with reference to the test contained in Rule 73(B) of the Rules, that the circumstances are exceptional to warrant an interlocutory appeal and that the Ruling will cause irreparable prejudice to the Defence.

2. With particular reference to the requirement of exceptional circumstances, the Defence submit that the Ruling disavows the legislative intent of Rule 66 of the Rules and makes substantial inroads into the intended restrictions of the disclosure process. The Defence contend that the Ruling would allegedly allow the Prosecution to continuously disclose and rely upon corroborative and cumulative evidence provided that (i) it emerges from existing witnesses, (ii) is a “building block constituting an integral part of, and connected with the same res gestae forming the factual substratum of the charges in the indictment” and (iii) was disclosed as little as 7 days prior to the evidence being called.[2]

3. The Ruling, the Defence further submit, now creates a new two-stage regime, namely: 1) disclosure of an original witness statement within the limits of Rule 66 of the Rules and 2) service of further statements containing corroborative allegations of the existing case, or even entirely novel allegations, without any procedural and evidentiary restrictions for the Prosecution. The Defence assert that this alleged new regime will represent a significant increase in the evidential support for the Prosecution’s case and consequently will have a substantial impact on both the management of the trial and the nature of the case against the Accused.[3]

4. With particular reference to the requirement of irreparable prejudice, the Defence submit that pursuant to the criteria applied in the Ruling, there is a significant possibility that there remain undisclosed at this time a large amount of corroborative allegations in support of the Prosecution’s case that might then be subsequently disclosed to the Defence. According to the Defence, this late disclosure would be in breach of the right of the Accused pursuant to Article 17 of the Statute and in particular of the right to be informed promptly of the nature of the case against him, the presumption of innocence, the right to be tried without undue delay and, finally, the right to have adequate time and facilities for the preparation of his defence.[4]

B. The Consolidated Response

5. In its Consolidated Response, the Prosecution submits that the Applications fail to satisfy the test of Rule 73(B) of the Rules and should therefore be dismissed.

6. In particular, the Prosecution asserts that the Accused will not suffer irreparable prejudice, as they have been promptly and fully informed of the case against them and will have ample time to prepare for the testimony of Witness TF1-141.[5] The Prosecution further submits that evidentiary rulings are not subject to interlocutory appeals, and that if any particular piece of evidence is relied upon by the Court in convicting an Accused, such evidence can be then contested on the appeal on the judgement, provided that an error was made at the trial level in relying on that evidence.[6]

7. In addition, the Prosecution submits that the Applications do not raise exceptional circumstances, as issues involving admissibility of evidence are a frequent and recurring occurrence at trial. If leave to appeal is granted, the Prosecution argues, the threshold for granting leave will be lowered subjecting most of the evidentiary rulings to interlocutory appeal.[7]

8. The Prosecution also states that it has a continuous obligation to disclose evidence pursuant to Rule 66 of the Rules and it is consequently allowed to rely on the disclosed materials.[8] Furthermore, the Prosecution notes that the Court found that the additional statements do not contain new allegations but are rather supplemental to the original statements of TF1-141.[9] In any case, according to the Prosecution, the Defence will benefit from a long period of time before TF1-141 is called in order to prepare for his testimony.[10]

C. The Replies

9. In each of their respective replies, both Counsel for the First Accused and Third Accused reiterate the main arguments in their original submissions.

10. In its Reply, the Defence for First Accused submits that, contrary to the assertion of the Prosecution, evidentiary rulings are subject to appeal at the interlocutory level before international tribunals.[11]

11. In addition, Counsel submits that the Prosecution in its Response implicitly conceded that the additional statements contain new evidence by acknowledging that the Defence will require additional time and facilities in order to prepare for the testimony of TF1-141.[12]

12. In its Reply, Counsel for Third Accused submits that the matter is of “fundamental importance, not only in the circumstances of this witness, but in principle for future fair conduct of the trial”.[13] The Defence claims, in particular, that the proposed evidence of Witness TF1-141 is entirely new and amounts to the addition of a new witness at a late stage in the proceedings.[14]

13. Counsel also submits that the Prosecution has failed to comply with its obligations pursuant to Rule 66 of the Rules by disclosing material apparently probative at a later stage, and that this conduct has caused prejudice to the rights of the Accused.[15]

3. THE MERITS OF THE APPLICATIONS

I. Introduction

14. The present Applications confront the Chamber once more with the delicate judicial task faced by international criminal tribunals of how to balance the due process rights of the Accused, which include pre-eminently that of a fair and expeditious trial, with the interests of the international community in not having criminal trials bogged down or encumbered by a plethora of interlocutory appeals thereby causing protracted delays in bringing the accused persons to justice.

II. Preliminary Observations

15. Both Defence Counsel in their Motions, and the Prosecution in its subsequent Consolidated Response, appear to be attempting or seeking to re-litigate and expand the issues already presented orally before the court and disposed of in the Ruling. In addition, both requests for leave do incorporate the proposed grounds of appeal which, having regard to the principle of judicial hierarchy, are premature and irrelevant in determining whether the prescribed test in Rule 73(B) for leave to appeal has been met.[16]
16. Unquestionably, the only relevant issue for determination by the Chamber is whether the Defence have met the requirements for leave to appeal as prescribed by Rule 73(B). Any other submissions not germane to that issue are, for the purposes of the present Applications, irrelevant and immaterial.

III. Applicable Jurisprudence

17. In one of our leading decisions on the subject of interlocutory appeals, namely, the Decision On Prosecution’s Application For Leave To File An Interlocutory Appeal Against the Decision On the Prosecution’s Motion For Joinder, we enunciated the test governing applications under Rule 73(B) of our Rules. There, we stated that:

“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 to the test are clearly conjunctive, not disjunctive; in other words, they must both be satisfied.” [17]

18. Briefly recalling the legislative history of Rule 73(B), we observed as follows:

“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 interlocutory appeals existed and the amendment was carefully couched in such terms so as only to allow appeals to proceed in very limited and exceptional situations. In effect, it is a restrictive provision.”[18]

19. Comparing the test applicable in our jurisdiction with that applicable in the jurisdictions of our sister international criminal tribunals, ICTY and ICTR, we had this to say:

“This Chamber also notes that the amendment to Rule 73 (B) created a novel test for granting leave to interlocutory appeal, as the requirement of “exceptional circumstances” does not feature in similar provisions in the Rules of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”).[19]

We then opined that “this Chamber must apply an entirely new and considerably more restrictive test than the one applied by the ICTR or the ICTY.” Despite this difference in applicable tests, we find instructive the observation of the Appeals Chamber of the ICTR in the Nyiramasuhuko Case, that:

“It is first and foremost the responsibility of the Trial Chambers, as triers of fact, to determine which evidence to admit during the course of trial, it is not for the Appeals Chamber to assume this responsibility. As the Appeals Chamber previously underscored, certification of an appeal has to be the absolute exception when deciding the admissibility of evidence.”[20]

20. Further, it should be emphasised that in subsequent decisions of this Chamber on the issue, notably, 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-2004-64-PT[21] and Decision On Prosecution Application For Leave To Appeal “Decision On First Accused’s Motion For Service and Arraignment, Decision on Application By First Accused For Leave to Make Interlocutory Appeal Against the Decision On the First Accused’s Motion For Service and Arraignment On the Consolidated Indictment[22], we re-echoed and applied consistently the criteria and principles in accordance with the plain and literal meaning of Rule 73(B). The Chamber then underscored the importance of the restrictive nature of the Rule and the measure of stringency with which it should be judicially applied.
21. Instructively, the Appeals Chamber of this Court, in its recent Decision on Prosecution Appeal Against The Trial Chamber Decision of August 2004 Refusing Leave to File An Interlocutory Appeal, explained the rationale behind the Rule in these terms:

“The underlying rationale for permitting such appeals is that certain matters cannot be cured or resolved by final appeal against judgement. However, most interlocutory decisions of a Trial Chamber will be capable of effective remedy in a final appeal where the parties would not be forbidden to challenge the correctness of interlocutory decisions which were not otherwise susceptible to interlocutory appeal in accordance with the Rules.”[23]

IV. Evaluation of Merits of Applications

22. Guided by the foregoing principles and in particular, the principle that “the applicant’s case must reach a level of exceptional circumstances and irreparable prejudice,”[24] the Chamber now proceeds to evaluate the merits of the applications. It should be observed here that this application is in essence disputing the decision of this Chamber in relation to the admissibility of evidence. And relying on the ICTR decision which we noted with approval, leave to appeal in this regard has to be the absolute exception.
23. As to the requirement of “exceptional circumstances”, the key contention of the Defence is that the Chamber erred in law in its Ruling as regards the test contained in Rule 73(B) and as such the circumstances are exceptional to justify the granting of an interlocutory appeal. Elaborating on this contention, the Defence submit that the Ruling disavows the legislative intent of Rule 66 and makes substantial inroads into the intended restrictions of the disclosure process thereby allowing the Prosecution the latitude of disclosing and relying upon corroborative and cumulative evidence provided that (i) it emerges from existing witnesses, (ii) is a “building block constituting an integral part of, and connected with the same res gestae forming the factual substratum of the charges in the indictment”, and (iii) was disclosed as little as 7 days prior to being called. These are disguised or veiled grounds of appeal.
24. The Defence submission goes further to hypothesize that the sum-total of the Ruling is the creation of a new two-stage regime, to wit: (i) disclosure of an original witness statement within the limits of Rule 66 and (ii) service of further statements containing corroborative allegations of the existing case, or even entirely new allegations thus augmenting the evidential support for the Prosecution’s case.
25. As already noted, the Defence is virtually arguing the substantive merits of the projected appeal and advancing the argument that the alleged erroneous nature of the Ruling is tantamount to “exceptional circumstances.” In this regard, it must be asserted that this Chamber has studiously refrained from embarking on any comprehensive or exhaustive definition of the concept of “exceptional circumstances” primarily because the notion is one that does not lend itself to a fixed meaning. Nor can it be plausibly maintained that the categories of “exceptional circumstances” are closed or fixed. It is, however, appropriate at this stage, to observe that what constitutes “exceptional circumstances” must necessarily depend on, and vary with, the circumstances of each case.[25]
26. “Exceptional circumstances” may exist depending upon the particular facts and circumstances, where, for instance the question in relation to which leave to appeal is sought is one of general principle to be decided for the first time, or is a question of public international law importance upon which further argument or decision at the appellate level would be conducive to the interests of justice, or where the cause of justice might be interfered with, or is one that raises serious issues of fundamental legal importance to the Special Court for Sierra Leone, in particular, or international criminal law, in general,[26] or some novel and substantial aspect of international criminal law for which no guidance can be derived from national criminal law systems.
27. Further, addressing the issue for determination, it is the Chamber’s view, therefore, that the critical question for determination, at this stage, is whether, in relation to the first part of the conjunctive test prescribed under Rule 73(B), the Defence has shown “exceptional circumstances” to justify the granting of leave by the Chamber, taking into account the exposition of the law in the foregoing paragraphs. Admittedly, showing “exceptional circumstances” does not automatically entitle the party seeking leave to the order sought. The test, we reiterate, is conjunctive in the sense that there must also be a showing of “irreparable prejudice”.
28. Has the Defence, therefore, established “exceptional circumstances” to warrant the granting of leave to appeal against the impugned Decision? The Defence allege that the Trial Chamber erred in law in concluding that the “Defence has failed to demonstrate or substantiate by prima facie proof the allegations of breach of the Prosecution of Rule 66(A)(ii) of the Rules, Article 17(4) of the Statute and the Chamber’s Order for Disclosure”.[27] It is also contended by the Defence that the Ruling is “a breach of the spirit and purpose (if not letter) of Rule 66 and more fundamentally of the Accused” rights pursuant to Article 17(4).”[28]
29. Based on the foregoing considerations, it is the Chamber’s considered view, and we so hold, that no exceptional circumstances have been established. That the probability of an erroneous ruling on the admissibility of evidence, without more, especially in light of the primacy given to the principle of extensive admissibility of evidence in the practice of international criminal tribunals, as opposed to the doctrine of strict adherence to the technical rules of admissibility applicable in some national law systems, cannot constitute “exceptional circumstances” for the purposes of a Rule 73(B) application. Furthermore, as previously stated, when deciding the admissibility of evidence, leave to appeal has to be the absolute exception, and in our opinion this has certainly not been demonstrated. Needless to mention that it would be premature for the Chamber, at this stage, to determine or speculate upon the issue of the probative value of the evidence whose admissibility is being challenged by the Defence in the projected appeal.[29]
30. Having thus found that no legally sustainable “exceptional circumstances” have been articulated by both Counsel for the First Accused and for the Third Accused to warrant additional analysis, it would be unnecessary to address the issue of “irreparable prejudice” given that the test is conjunctive[30]. It may, however, be pointed out that, as a matter of law, wrongful admission of evidence cannot cause, “irreparable prejudice” to the rights of an Accused person to a fair trial since it can, depending on the particular facts and circumstances of the case and the nature of the evidence, properly be a ground for reversal, in the event of a conviction. It cannot, therefore, be plausibly contended that the wrongful admission of evidence is a matter that “cannot be cured or resolved by final appeal against judgement.”[31]

FOR THE ABOVE REASONS, THE CHAMBER

DENIES the Defence Applications for leave to file an interlocutory appeal and accordingly DISMISSES the said Applications.

Done in Freetown, Sierra Leone, this 28th day of April, 2005

[Seal of the Special Court for Sierra Leone]

[1] The Sesay’s Application and the Gbao’s Application will herein also be referred jointly as the “Applications”.
[2] Sesay’s Application, para. 24; Gbao’s Application, para. 15.
[3] Sesay’s Application., paras 25-28; Gbao’s Application, para. 15.
[4] Sesay’s Application, paras 29-35. See also Gbao’s Application, para. 16.
[5] Consolidated Response, para. 8, paras 28-31.
[6] Id., para. 8.
[7] Id., para. 10.
[8] Id., paras 12-21.
[9] Id., paras 9 and 17,
[10] Id., paras 11, 17 and 31.
[11] Sesay’s Reply, para. 2. Interestingly, the Defence does not support this submission with any relevant authority, but rather asserts that “a cursory look at the ICTY and ICTR jurisprudence is sufficient to counter this argument”.
[12] Id., paras 4-7.
[13] Gbao’s Reply, page 4.
[14] Id., page 8.
[15] Id., pages 5-8.
[16] See, for instance, Sesay’s Application, paras 8-19; Gbao’s Application, paras 7-8, and 12-14. On the subject of interlocutory appeals, the International Criminal Tribunal for Rwanda has also condemned the practice of the parties of re-litigating the main thrust of submissions on which an impugned decision was rendered within an application for leave for interlocutory appeals, as well as proposing possible grounds of appeal in the same context. See Prosecutor v. Nyiramasuhuko et al, Case No. ICTR-98-42-T, Decision on Prosecutor’s Motion for Certification to Appeal the Decision of the Trial Chamber dated 30 November 2004 on the Prosecution Motion for Disclosure of Evidence of the Defence, 4 February 2005, paras 11-12; Prosecutor v. Bizimungo et al., Case No. ICTR-99-50-T, Decision on Bicamumpaka’s Request Pursuant to Rule 73 for Certification to Appeal the 1 December 2004 “Decision on the Motion of Bicamumpaka and Mugenzi for Disclosure of Relevant Material”, 4 February 2005, para. 28;
[17] Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15-PT, Decision On Prosecution’s Application For Leave To File An Interlocutory Appeal Against the Decision On the Prosecution’s Motion For Joinder, 13 February 2004, para. 10. See also, Prosecutor v. Brima et al., Case No. SCSL-04-16-PT, Kanu – Decision on Application for Leave to File and Interlocutory Appeal Against Decision on Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Statements, 4 February 2005.
[18] Id., para. 11.
[19] Id., para. 12. Rule 73(B) of the Rules of Procedure and Evidence of those tribunals states that:

“Decisions on all Motions are without interlocutory appeal save with the certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.”
[20] Prosecutor v. Ntahobali and Nyiramasuhuko, Case No. ICTR-98-42-AR73.2, Decision on Pauline Nyiramasuhuko’s Appeal on Admissibility of Evidence, 4 October 2004 (“Nyiramasuhuko Decision”), para. 5. See also Prosecutor v. Bizumungu et al. Case No. ICTR-99-50-T, Decision on Bicamumpaka’s Request Pursuant to Rule 73 For Certification To Appeal The 24 November 2004 Decision On Bicamumpaka’s Urgent Motion To Declare Parts Of The Testimony Of Witnesses GTA And DCH Inadmissible, 25 February 2005, para. 11.
[21] Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-PT, and Prosecutor v. Brima, Kamara and Kanu, Case No SCSL-2004-16-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 (“Decision of the 1st of June, 2004”).
[22] Prosecutor v. Norman, Fofana and Kondewa, Case No SCSL-04--14-T, Decision On Prosecution Application For Leave To Appeal “Decision On First Accused’s Motion For Service and Arraignment, Decision on Application By First Accused For Leave to Make Interlocutory Appeal Against the Decision On the First Accused’s Motion For Service and Arraignment On the Consolidated Indictment, 15 December 2004 (“Norman Decision”).
[23] Prosecutor v. Norman, Fofana and Kondea, Case No SCSL-04-14-T, Decision on Prosecution Appeal Against The Trial Chamber Decision of August 2004 Refusing Leave to File An Interlocutory Appeal, Appeals Chamber, 17 January 2005, at para. 29.
[24] See Decision of the 1st of June, 2004, para 21:

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.”

[25] See also Prosecutor v. Norman et al., Case No. SCSL-04-14-T, Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution’s Request for Leave to Amend the Indictment Against Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, 2 August 2004, para. 22. In interpreting the concept of “exceptional circumstances”, the European Court of Human Rights stated that it “is capable of being interpreted and applied in a wide variety of ways in the absence of a more precise statutory definition of the circumstances.” See H v. Belgium, ECHR, 1/1986/99/147, 28 October 1987.
[26] See, for instance, Prosecutor v. Sesay et al., Case No SCSL-04-15-T, Decision on Application for Leave to Appeal Gbao – Decision on Application to Withdraw Counsel, 4 August 2004, paras 55-57; Prosecution v. Norman et al, Case No. SCSL-04-14-T, Decision on Joint Request for Leave to Appeal Against Decision on Prosecution’s Motion for Judicial Notice, 19 October 2004, para. 20; See also id, Decision on Application by First Accused for Leave to Make Interlocutory Appeal Against the Decision on the First Accused’s Motion for Service and Arraignment on the Consolidated Indictment, 16 December 2004. The ECHR found exceptional circumstances in situations where public safety my be affected or where there is a serious risk that the course of justice might be interfered with. See Clooth v. Belgium, ECHR, 49/1990/240/311, 27 November 1991 and The Sunday Times, ECHR, 29 March 1979.
[27] Sesay’s Application, para. 2; Gbao’s Application, para. 2.
[28] Sesay’s Application, para. 3.
[29] See also Nyiramasuhuko Decision, para.8:

“... the admission into evidence does not in any way constitute a binding determination as to the authenticity or trustworthiness of the documents sought to be admitted. These are to be assessed by the Trial Chamber at a later stage in the case when assessing the probative weight to be attached to the evidence”.
[30] Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-PT, and Prosecutor v. Brima, Kamara and Kanu, Case No SCSL-2004-16-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, para. 24.
[31] Appeals Chamber Decision, supra note 23.