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PROSECUTOR v ISSA HASSAN SESAY & ORS - PARTIALLY DISSENTING OPINION OF JUSTICE PIERRE BOUTET ON WRITTEN REASONS FOR THE DECISION ON REQUEST FOR THE GBAO OPENING STATEMENT TO BE GIVEN AT THE BEGINNING OF THE PRESENTATION OF EVIDENCE FOR THE THIRD ACCUSED - Case No. SCSL-04-15-T [2007] SCSL 52 (3 July 2007)

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TRIAL CHAMBER I

Public Document

PARTIALLY DISSENTING OPINION OF JUSTICE PIERRE BOUTET ON WRITTEN REASONS FOR THE DECISION ON REQUEST FOR THE GBAO OPENING STATEMENT TO BE GIVEN AT THE BEGINNING OF THE PRESENTATION OF EVIDENCE FOR THE THIRD ACCUSED

1. With due respect for my Learned Brothers, Justice Bankole Thompson, Presiding Judge and Justice Benjamin Mutanga Itoe, while I am in agreement and concur with their reasons and findings in the specific circumstances of the Decision, I cannot agree with their analysis of the law with regards to Rule 84 of the Rules and hence append this partially Dissenting Opinion.
2. Paragraph 8 of the Decision reads as follows with regards to the applicable law to Rule 84 of the Rules of Procedure and Evidence pertaining to opening statements:

The Chamber however, is of the opinion and accordingly holds and directs, that in a normal situation, where in joint trial, the parties do not intend to call or to rely on common witnesses, the procedure as clearly set out in Rule 84 is that each Defence Team is expected to make its opening statement only at the opening of its case if it so desires.

3. Rule 84 states that “At the opening of his case, each party may make an opening statement confined to the evidence he intends to present in support of his case. The Trial Chamber may limit the length of those statements in the interests of justice.”
4. This is a general provision that does not contain any particular measure or provide any specific procedure for joint trials where as in the case of the RUF trial we are dealing with multiple accused.
5. I am of the view that the sole fact that a case proceeds as a joint trial with multiple accused persons rather than a single defendant trial does not, on its own, alter or modify the general nature of Rule 84 that each Defence Team be allowed, if they so desire, to give its opening statement prior to the commencement of the presentation of the evidence.
6. For the purposes of this Decision, I wish to note that in our Decision disposing of the joinder of the RUF Trial, while we reiterated our obligation to proceed with each accused person as if he was being tried separately, this Chamber concluded, inter alia, that the alleged crimes “arise from a number of acts or omissions, allegedly, occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan.”[1]
7. The fact that two or more Defence Teams intend to rely on any so called “Common Witness” to present evidence on behalf of two or more accused is not, in my view, the only factor mandating under Rule 84 these Teams to give their respective opening statements at the commencement of the Defence case in such joint trial.
8. Indeed, the purpose of an opening statement is to outline for the benefit of the Court and the other parties the essence of the case to be presented. Opening Statements are fundamentally intended to assist a Trial Chamber to understand the evidence which is subsequently to be placed before it during the course of the Trial. The party making an opening statement can, for instance, present the nature of its case, the challenges it intends to make to specific charges alleged against that accused person as well as a resume of the evidence that it intends to bring before the court in support of its respective case.[2] In a joint trial for an opening statement to be meaningful and of assistance it can only be done before the opening of the Defence case and not before each and every individual case.
9. Hence, it is my view that, according to Rule 84, opening statements, if any, in either single or joint trials shall normally be held at the opening of each party’s respective case, that is the Prosecution case and the Defence case. In this regard, with particular reference to joint trials, I would like to refer to the case of Prosecutor v. Brima, Kamara and Kanu, wherein each Defence Team gave its respective opening statement pursuant to Rule 84 on the initial day of the Defence Case. Worthy of note is also that these separate opening statements were preceded by a joint opening statement focusing on factual and legal issues common to all the Defence Teams.[3]
10. Therefore, contrary to the opinion expressed in the Decision by my Learned Brothers, Justice Bankole Thompson, Presiding Judge and Justice Benjamin Mutanga Itoe, I am of the opinion that, pursuant to Rule 84, while each Defence Team will, if it intends to do so, give its opening statement with regards to the case against each of the respective accused and independently from the other co-accused, the opening statements by all the Defence Teams ought to be given, in the absence of any exceptional circumstance that could justify the exercise of this Court’s judicial discretion to order a departure from the provisions of Rule 84, at the overall commencement of the Defence phase of the trial, prompt.

[1] See, for instance, Prosecutor v. Issa Hassan Sesay, SCSL-03-05-PT, Decision and Order on Prosecution Motions for Joinder, 28 January 2004, paras 35 and 40.
[2] In addition, see for instance Prosecutor v. Charles Taylor, SCSL-03-01-PT, Interim Order in Respect of the Urgent and Public Prosecution’s Motion for Admission of Material Pursuant to Rules 89(C) and 92bis for Use During Opening Statement, 31 May 2007.
[3] See Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Transcripts, 17 May 2006, p. 2; Ibid., 5 June 2006, p. 3ff.