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PROSECUTOR v SAM HINGA NORMAN & ORS - DECISION ON JOINT DEFENCE MOTION REGARDING THE PROPERTY OF CONTACTING DEFENCE WITNESSES - Case No.SCSL-04-14-T [2006] SCSL 80 (20 June 2006)

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TRIAL CHAMBER I

Public Document

DECISION ON JOINT DEFENCE MOTION REGARDING
THE PROPRIETY OF CONTACTING DEFENCE WITNESSES

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

SEIZED OF the “Urgent Joint Defence Motion Regarding the Propriety of Contacting Defence Witnesses”, filed by Court Appointed Counsel for the First, Second and Third Accused jointly (collectively the “Defence”) on the 11th of May 2006 (“Motion”), seeking clarification as to the propriety of contacting and interviewing confirmed Defence witnesses by the Prosecution during the Defence stage of the trial and prior to their testimony, and for a Court order for the exclusion of statements taken from Defence witnesses by the Prosecution;[1]

NOTING the “Prosecution Response to ‘Urgent Joint Defence Motion Regarding the Propriety of Contacting Defence Witnesses’”, filed by the Prosecution on the 15th of May 2006 (“Response”), opposing the Motion on the ground that there is no restriction on the right of one Party to contact or interview witnesses proposed to be called by the other Party, prior to their testimony;[2]

NOTING the “Prosecution Corrigendum to the “Response to Urgent Joint Defence Motion Regarding the Propriety of Contacting Defence Witnesses”, filed by the Prosecution on the 16th of May 2006 (“Corrigendum”);[3]

NOTING the “Joint Defence Reply to Prosecution Response to Urgent Joint Defence Motion Regarding the Propriety of Contacting Defence Witnesses”, filed by the Defence on the 17th of May 2006 (“Reply”), agreeing that the Prosecution is entitled to contact and interview Defence witnesses, but that such contacts should be regulated by clearly defined procedures with a notice given to the interested parties and reiterating that witness statements taken should be excluded;[4]

PURSUANT to Rules 34, 54, 89(B), 95 of the Rules of Procedure and Evidence of the Special Court (the “Rules”),

HEREBY ISSUES THE FOLLOWING DECISION:

I. PARTIES’ SUBMISSIONS

(a) Motion

1. The Defence state that on the 9th of May 2006, during the cross-examination of Ms. Wuiyatta Sheriff, Defence witness for the First Accused, it became apparent that the Prosecution had been directly contacting, interviewing and taking statements from Defence witnesses without the prior knowledge of the Defence and with a view of challenging their credibility during cross-examination by the Prosecution,[5] which, as a general principle, is not permissible.
2. The Defence submit that since the Rules do not expressly address the issue, The Chamber is enjoined to 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”, according to Rule 89(B) of the Rules.[6] The Defence further rely on Article 17(4) of the Statute, which states that the Accused shall be entitled to “(e) to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her”.[7]
3. The Defence also submit that it is unfair to allow the Prosecution to conduct interviews with confirmed Defence witnesses when the Defence were foreclosed from enjoying the same opportunity in relation to Prosecution witnesses by virtue of protective measures being in place.[8] The Defence submit that all their requests to interview the Prosecution witnesses, which were channelled through the Witnesses and Victims Section (“WVS”) to the Prosecution, were denied in toto by the Prosecution.[9] The Defence further submit that contrary to the principle of equality of arms, the fact that the Defence witnesses have chosen to testify without protective measures, affords the Prosecution a rather significant tactical advantage over the Defence.[10] Moreover, the fears expressed by some of the Defence witnesses, i.e. concerning the placing of their names on Defence witness lists would expose them to harassment by agents of the Prosecution, is now well-founded.[11] The Defence submit that once a list of witnesses is made known, it is customary for the other party to seek permission before approaching a confirmed witness,[12] which is a better practice to avoid allegations of bad faith and interference with witnesses.[13]
4. The Defence further argue that assuming that it is appropriate to interview confirmed Defence witnesses, The Chamber should endorse certain procedural safeguards, namely, that the request must be reasonable and that the witness must provide a fully informed consent to an interview which must be obtained without harassment or intimidation.[14] The Defence submit that WVS could be tasked with dealing with such a request as confirmed witnesses come under its auspices.[15]
5. The Defence contend that in post-conflict Sierra Leone, where many witnesses may be suspect and even fearful of figures of authority, they may feel compelled to give interviews to the Prosecution when such interviews are conducted at the police facilities with the use of the police staff.[16] Allegedly, both Defence witnesses, Mrs. Wuiyatta Sheriff and Mr. Joe Nunie, were summoned to the police station for an interview with the Prosecution[17] and it is unclear whether a proper consent was obtained from Mrs. Sheriff before she was interviewed.[18] The Defence, therefore, request the exclusion, under Rule 95 of the Rules, of any statements taken from Defence witnesses under such conditions.[19]

(b) Response

6. The Prosecution respond that “it is a fundamental principle in criminal as well as civil proceedings”, recognized in the ruling of the ICTY Appeals Chamber in the Mrksic case,[20] that there is no property in a witness.[21] The Prosecution submit that “[a] witness is never “attached” to either of the parties, at any stage of the proceedings”.[22] The Prosecution further submit that they have legitimate reasons to interview Defence witnesses, including for purposes of conducting their own reasonable investigations either to test the Defence evidence or to obtain information which can be used to undermine the reliability or credibility of a witness.[23] The Prosecution concede that such contacts can be restricted by the Court’s protective measures order depending on the circumstances of the case.[24]
7. The Prosecution further submit that the Defence relied on Rule 89(B) and Article 17(4) without providing any explanation as to their applicability in this case.[25] In response to the Defence’ submission to exclude witness statements under Rule 95, the Prosecution submit that in the Kamuhanda case in the ICTR, the ICTR Trial Chamber found that no case has been made by the Defence for excluding under Rule 95, the evidence obtained from a Defence witness, even if the Prosecution violated a witness protection order in contacting the witness.[26]
8. Even if it were a “customary courtesy” for a Party to seek permission to approach confirmed witnesses from the other Party, once a list of witnesses is made known, The Prosecution argue, that the Motion fails to establish how a departure from this “courtesy” can be inconsistent with the rights of an Accused.[27] The Prosecution also argue that a decision made by the Defence not to apply for protective measures for their witnesses cannot be said to be contrary to the principle of equality of arms.[28]
9. As to the necessity to establish procedural safeguards in respect of such contacts, the Prosecution respond that they fully accept that they have no power to compel Defence witnesses to speak to the Prosecution, save pursuant to a subpoena, and that they are subject to all professional obligations to ensure that a witness does not feel coerced or intimidated.[29] Invoking Article 17(1) of the Special Court Agreement, the Prosecution argue that there is nothing improper in seeking the assistance of the police to locate witnesses, especially in rural areas, and to make facilities available for conducting interviews.[30] They contend that if there is a suggestion that a particular witness feels intimidated or coerced, it needs to be examined on a case-by-case basis[31] and that only then can a decision be taken on whether or not a statement taken from such a witness should be excluded pursuant to Rule 95 of the Rules.[32] The Prosecution submit that in relation to witness Wuiyatta Sheriff, there is no evidence indicating that she felt harassed or intimidated[33] and in relation to witness Joe Nunie, there was no statement obtained and therefore there is no need to address certain allegations made by this witness in relation to the circumstances surrounding his interview.[34]
10. The Prosecution finally undertake, in order to allay any possible concerns, to refrain from seeking to interview any further Defence witnesses until The Chamber has ruled on the matter[35] and propose the adoption of the following procedure, should the Motion be denied:

(i) The Prosecution will seek to establish contact with the witness via [WVS]. Like the OTP, it is expected that the [WVS] will need to enlist the aid of the local police to locate the witnesses, and to make facilities for the interview available.

(ii) The Prosecution will at the commencement of any interview with a Defence witness provide the witness with a document in the form of [a Statement attached to the Response as Annex A],[36] and have the document read to the witness in the witness’s own language, if the witness does not speak English. The Prosecution will also request the [WVS] to request the local police to inform the witness of the substance of Annex A when approaching the witness to arrange an interview.

(iii) The Prosecution will reinforce to its investigators the need to be especially vigilant when interviewing persons who are listed as Defence witnesses in this case to ensure that the witness is aware that the interview is voluntary and that the witness is under no coercion.

(iv) Should any of these measures prove to be impracticable in the future, the Prosecution will revert to the Trial Chamber.[37]
(c) Reply

11. The Defence reply is that they do not claim that the witnesses are “attached” to the Defence but rather that the Prosecution should not contact Defence witnesses without a request being made either to the Defence or the WVS.[38] Such requests, they contend and submit, must be reasonable.[39] The Defence do not dispute that there are legitimate reasons for the Prosecution to contact Defence witnesses.[40]
12. The Defence further agree with the Prosecution that interviews must be conducted in a way that a witness does not feel coerced or intimidated,[41] especially with witnesses like Wuiyatta Sheriff, who is “an illiterate woman from a rural area”, and who was not informed nor did she know of her right to refuse to be interviewed.[42]
13. Also, the Defence do not dispute the fact that the Prosecution can seek the assistance of “Sierra Leonean authorities” in conducting their investigations as provided in Article 15(2) of the Statute, but submit that such assistance shall be limited to situations where it is “appropriate”.[43] The Defence submit that it is not appropriate, in the circumstances described above, for the Prosecution to use police staff to approach and question witnesses or to use their facilities for interviews,[44] especially because they have already provided all the identifying information on their witnesses to the Prosecution.[45]
14. Finally, the Defence urge The Chamber to adopt the procedure proposed by the Prosecution with the following modifications.[46] In step (i), replace “Like the OTP, it is expected that the [WVS] will need to enlist the aid of the local police to locate the witnesses, and to make facilities for the interview available” with “It should be the responsibility of the WVS to determine the best and least coercive method for locating and contacting witnesses”. In step (ii), replace “in the witness’s own language, if the witness does not speak English” with “in a language the witness comprehends” and replace “The Prosecution will also request the [WVS] to request the local police to inform the witness of the substance of Annex A when approaching the witness to arrange an interview” with “When approaching the witness, the WVS should also inform him of his right not to cooperate with the Prosecution”.[47]
    

II. APPLICABLE LAW

15. Although there is no specific provision in the Rules directly applicable to the issue raised in the Motion, recourse may be had, however, to Rule 89(B) of the Rules, which provides as follows:

(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.

16. The Chamber further notes that since the Motion seeks to exclude witness statements taken so far by the Prosecution from Defence witnesses, the applicability of Rule 95 of the Rules should also be examined. This Rule provides as follows:

No evidence shall be admitted if its admission would bring the administration of justice into serious disrepute.

III. DELIBERATIONS

17. For an avoidance of doubt, The Chamber notes at the outset that the ownership over a witness by any Party, is not being asserted or claimed. Both the Defence and the Prosecution recognise and accept that there is no proprietary interest in a witness at any stage of the proceedings, be it in the pre-trial or trial phase. The Chamber adopts the law as stated by the ICTY Appeals Chamber in the Mrksic case cited by both Parties, that witnesses are not the property of either the Prosecution or the Defence and that therefore, both Parties have an equal right to interview them.[48] The issue that must now be determined is whether there is an obligation for the Party wishing to interview a witness to declare its intention to do so to the other Party and whether such contacts should be done directly or through certain procedural safeguards.
18. We see no merit in the Defence submission that it is against the principle of equality of arms for the Prosecution to contact Defence witnesses directly when the Defence were precluded from doing so in relation to the Prosecution witnesses due to the protective measures being in place. The Chamber emphasises that in granting those protective measures to the Prosecution witnesses, The Chamber took into account the existence of a legitimate fear on the side of the Prosecution witnesses.[49] If the Defence had made the necessary applications before The Chamber, and asserted that Defence witnesses expressed fear that “by placing their names on the defence witness list, they would expose themselves to harassment by agents of the Prosecution”, then the procedure that applied to the Prosecution witnesses would have applied in a similar way to the Defence witnesses.
19. The Chamber is of the view that it is indeed an act of courtesy rather than obligation for a Party to give a prior notice to the opposing Party of its intention to contact or interview a witness of the opposing Party. Other international criminal tribunals have also held the same view. In Oric the ICTY Trial Chamber concluded, by reference to the Stanisic case, that in order to avoid allegations of improper interference with a witness who, to the Prosecution’ knowledge, is to be called by the Defence, it would be prudent for the Prosecution to discuss its intentions to interview a witness or potential witness with the Defence and to record the interview. However, that Trial Chamber did not rule specifically on the question of whether and when the Prosecution should have informed the Defence of their intention to interview a Defence witness since it was no longer necessary in that case.[50] Similarly, the ICTY Trial Chamber in Stakic stated that “as an act of courtesy and in the absence of general rules, the Prosecution would be prepared just to contact or to inform the other party in advance”[51] of their intention to contact a Defence witness for purposes of calling this witness on behalf of the Prosecution in a different trial.
20. Based on the above considerations, The Chamber concludes that it would be prudent and fair for the Prosecution to give notice to the Defence of their intention to interview their witnesses in order to avoid allegations of bad faith or improper interference with a witness.
21. The Chamber further holds that the Prosecution right to contact Defence witnesses is a qualified one.[52] The Chamber in this respect adopts the view of the Trial Chamber in Oric, that when exercising that right, it should be done in a way that will not be “obstructive or perversive of justice or the course of justice”.[53] The Chamber, therefore takes the position that, although the Prosecution have the right to interview Defence witnesses, “such right does not carry with it a corresponding duty on the part of the prospective witness to submit himself or herself to being so interviewed.” [54]
22. The Chamber notes that there is common ground between the Defence and the Prosecution as to the Prosecution power under Article 15(2) of the Statute and Article 17(1) of the Special Court Agreement, to seek the assistance of Sierra Leone authorities in their investigations.[55] The Defence contention, however, is that such a request for assistance must be “appropriate”.
23. We find merit in the Defence submission that the general population might feel intimidated by being approached by the police directly, considering that this Country has been through many years of armed conflict and that the social and political situation in Sierra Leone is such that it might reasonably lead to apprehension within the general population as to the role and power of the police. The Chamber, therefore, accepts the Defence submission that the appropriate organ to contact witnesses would be WVS, which statutorily, is tasked, inter alia, with “provid[ing] [...] appropriate assistance for witnesses [...] who appear before the Court”.[56] We opine therefore that the WVS, by virtue of their functions and objectives, namely, to provide protection, security and support to witnesses and victims,[57] is in the best position to determine how to approach a witness, who may otherwise feel intimidated, to explain to a witness his or her right to refuse to be interviewed and to make sure that a proper consent for an interview was obtained from the witness.
24. On the issue of the exclusion of witness statements The Chamber is of the view that the Defence have failed to make a case for the application of Rule 95, as it applies to the exclusion of evidence which has been or about to be admitted by The Chamber and which admission “will impact adversely and unfairly on the integrity of the proceedings before the Court”.[58] For the same reasons, The Chamber cannot entertain the request for the exclusion of the witness statement allegedly given by Wuiyatta Sheriff, as the Prosecution have clearly stated that they do not intend this statement to be admitted as an Exhibit.[59]
25. The Chamber finds that it is no longer necessary to recall witness Wuiyatta Sheriff in that cross-examination by the Prosecution has been concluded.[60] It is also the case that Court Appointed Counsel for the First Accused have concluded their re-examination,[61] subject to the request by Court Appointed Counsel for the First Accused “not to consider any responses to questions related to such a statement to be part of the record before a decision on the motion is made.”[62] The Chamber ruled that since the objection to such questions was overruled,[63] the questions do constitute part of the record and directed Court Appointed Counsel, if they so wished, to raise this issue as part of their written Motion. This they never did.[64]
    

IV. DISPOSITION

26. Based upon the foregoing reasons, The Chamber GRANTS the Motion in part and ORDERS that, should the Office of the Prosecutor (“OTP”) wish to proceed to interview a witness listed as a witness for the Defence or identified as such, the following procedure shall be followed:

(i) The OTP shall inform the WVS of their intention to interview such a witness.

(ii) The WVS, upon being informed beforehand of the location of the witness, shall contact the witness and inform him or her of the OTP’s intention to interview him or her and of his or her right not to consent or give the interview.

(iii) The WVS shall inform the OTP of the witness’s decision to give the interview or not.

(iv) If the witness agrees to give the interview, the WVS shall inform the OTP as to the location of the interview.

The Chamber, however, DISMISSES the Motion in all other aspects.

Done in Freetown, Sierra Leone, this 20th day of June 2006.

[Seal of the Special Court for Sierra Leone]

[1] Motion, paras 1, 20, 21.
[2] Response, para. 3.
[3] Corrigendum was filed in relation to para. 9 of the Response.
[4] Reply, para. 2.
[5] Motion, para. 2.
[6] Ibid., para. 5.
[7] Ibid., para. 6.
[8] Ibid., para. 8.
[9] Ibid.
[10] Ibid., para. 9.
[11] Ibid., para. 12.
[12] Ibid., para. 7.
[13] Ibid., para. 11 quoting Prosecutor v. Oric, IT-03-68-T, Trial Chamber, Transcript, 7 December 2005, (“Oric Trial Decision”), pp. 14516-14522.
[14] Ibid., paras 3, 13, 14, 15 quoting Prosecutor v. Kajelijeli, ICTR-98-44A-T, Trial Chamber II, “Decision on Defence Motion Seeking to Interview Prosecutor’s Witnesses or Alternatively to be Provided with a Bill of Particulars”, 12 March 2001; Prosecutor v. Mrksic, IT-95-13/1-AR73, Appeals Chamber, “Decision on Defence Interlocutory Appeal on Communication with Potential Witnesses of the Opposite Party”, 30 July 2003 (“Mrksic Appeal Decision”).
[15] Motion, paras 3, 11.
[16] Ibid., para. 16.
[17] Ibid., paras 17-18.
[18] Ibid., para 17.
[19] Ibid., para. 19.
[20] Response, paras 4-6, referring to Mrksic Appeal Decision, and Prosecutor v. Stakic, IT-95-24-T, Trial Chamber, Transcript, 20 February 2003, (“Stakic Trial Decision”), p. 12475.
[21] Response, para. 6.
[22] Ibid., referring to R v. Brown 1997 CarswellOnt 5992 (Canada: Ontario Court of Justice), para. 5; R v. Munro 1991 CarswellOnt 3538 (Canada: Ontario Court of Justice), para. 5; R v. Higgins [2003] EWCA Crim 2943 (England and Wales: Court of Criminal Appeal), paras 37-38.
[23] Response, para. 7.
[24] Ibid., para. 8.
[25] Ibid., para. 9.
[26] Corrigendum, paras 2-3, Response, para. 9 citing Prosecutor v. Kamuhanda, ICTR-99-54A-T, Trial Chamber, “Decision on Kamuhanda’s Motion for Disclosure of Witness Statements and Sanction of the Prosecutor”, 29 August 2002, paras 16, 20.
[27] Response, paras 10, 12.
[28] Ibid., para. 11, see also para. 13.
[29] Ibid., paras 14-15.
[30] Ibid., para. 16.
[31] Ibid., para. 17.
[32] Ibid., para. 18.
[33] Ibid., para. 19. Attached to the Response as Annex B is a Statement signed by Joseph Saffa, the Prosecution Senior Investigator, dated the 12th of May 2006, who describes that an interview with Wuyatta Sheriff took place on the 24th of March 2006 “in a peaceful atmosphere” and that “no threats or promises were made to her”.
[34] Response, para. 20. Attached to the Response as Annex C is a Statement signed by Joseph Saffa, the Prosecution Senior Investigator, dated the 12th of May 2006, who describes that a meeting with Joe Nunie took place on the 18th of January 2006, where Nunie stated that he would reserve his opinion for the court as he was going to testify in the defence case for Sam Hinga Norman and that the meeting was adjourned thereafter.
[35] Response, para. 22.
[36] Annex A is a statement from the Prosecution to a potential witness who is sought to be interviewed by them. It explains that the Prosecution is requesting an interview with a witness on the basis of his/her voluntary cooperation, that a witness is under no obligation to do it and that if he/she agrees, he/she may be asked in court about this statement.
[37] Response, para. 23.
[38] Reply, para. 3.
[39] Ibid., para. 4.
[40] Ibid.
[41] Ibid., para. 5.
[42] Ibid., para. 7.
[43] Ibid., para. 9.
[44] Ibid., paras 6, 8, 9. The Defence submit that “[f]or the Prosecution to suggest that average Sierra Leoneans might not feel intimidated by the police suggests that prosecution investigators may be (i) too deeply entrenched in the machinery of state authority to make objective determinations in this regard and (ii) insensitive to certain historical realities which occurred in this country during the war.”, para. 8
[45] Reply, paras 8, 9.
[46] See, supra, para. 10.
[47] Reply, para. 10.

[48] Mrksic Appeal Decision, III(b), para. 3; see also Oric Trial Decision, p. 14519 and Stakic Trial Decision, p. 12475.
[49] See, inter alia, Prosecutor v. Norman, Fofana, Kondewa, SCSL-04-14-T, “Decision on Prosecution Motion for Modification of Protective Measures for Witnesses”, the 8th of June 2004, para. 40.
[50] Oric Trial Decision, pp. 14519-14520.
[51] Stakic Trial Decision, p. 12473.
[52] See Mrksic Appeal Decision, III(b), para. 1.
[53] Oric Trial Decision, p. 14519; see also Mrksic Appeal Decision: “[T]he mere fact that the person has agreed to testify for the Defence does not preclude the Prosecution from interviewing him provided of course that there is no interference with the course of justice. Particular caution is needed where the Prosecution is seeking to interview a witness who has declined to be interviewed by the Prosecution, since in such a case the witness may feel coerced or intimidated. [emphasis added]”, III(b), para. 4.
[54] Oric Trial Decision, p. 14519.
[55] See also Mrksic Appeal Decision: “the Prosecution has the power to request interviews with potential defence witnesses and may seek assistance from state authorities to facilitate this contact.”, III(b), para. 2.
[56] Article 16(4) of the Statute.
[57] Rule 34 of the Rules.
[58] Prosecutor v. Sesay, Kallon, Gbao, SCSL-04-15-T, “Ruling on Gbao Application to Exclude Evidence of Prosecution Witness Mr. Koker”, the 23rd of May 2005, para. 8. The Chamber stated then that it “can exercise its discretion under this Rule and under its inherent jurisdiction to exclude evidence where its probative value is manifestly outweighed by its prejudicial effect.”, ibid., para. 7.
[59] “[The Prosecution] do have a statement [...] that appears to be from this witness. [...] [T]he statement is not signed but it is, nevertheless, relevant to what the witness has testified to today and there is a nexus between the statement and the testimony of the witness. [...] My intention is not to have this statement admitted an as exhibit. It is merely to attack the witness’s credibility. [...] I would just like to use the statement to refresh the witness's memory, if that's allowed.” Transcript of the 9th of May 2006, pp. 30-32.
[60] “As a matter of fact, cross-examination had completed. Beyond that question no more questions were going to be asked. [...] No more questions were going to be asked of this witness. Just like my co-counsel did mention, the records have suggested that she has already answered that question and we will rely on the records.” Transcript of the 9th of May 2006, pp. 44-45.
[61] Ibid., see also p. 48, lines 9-11. The witness was asked if she was interviewed by the Prosecution after she last came to WVS – she answered no.
[62] Transcript of the 9th of May 2006, p. 45, lines 7-13.
[63] Ibid., p. 37, line 26. The objection brought by Court Appointed Counsel for the First Accused was that the question asked by the Prosecution was “open-ended”, i.e. “did you ever say that you have never set eyes on Chief Hinga Norman when he came to the meeting in Koribundu?”, p. 34, lines 27-29; See also ibid., pp. 34-37.
[64] Ibid., p. 45, lines 14-19.