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PROSECUTOR v ISSA HASSAN SESAY & ORS - WRITTEN DECISION ON SESAY DEFENCE APPLICATION FOR A WEEK’S ADJOURNMENT - INSUFFICIENT RESOURCES IN VIOLATION OF ARTICLE 17(4)(b) OF THE STATUTE OF THE SPECIAL COURT - Case No. SCSL-04-15-T [2008] SCSL 29 (5 March 2008)

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TRIAL CHAMBER I

Public Document

WRITTEN DECISION ON SESAY DEFENCE APPLICATION FOR A WEEK’S ADJOURNMENT - INSUFFICIENT RESOURCES IN VIOLATION OF ARTICLE 17(4)(b) OF THE STATUTE OF THE SPECIAL COURT

TRIAL CHAMBER I (“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;

SEIZED of the Sesay Defence Application filed on the 4th of February, 2008, for a One Week’s Adjournment - Insufficient Resources in Violation of the Statute of the Special Court;

MINDFUL of a similar but Oral Application made by the Sesay Defence team before the Chamber on Friday the 1st of February, 2008;

MINDFUL of the Chamber Oral Decision delivered in Court soon after the said Application was made, dismissing the said February 1st Oral Application;

MINDFUL of the Written Application and Submissions followed by lengthy Oral arguments made by Learned Lead Counsel for the Sesay Defence, Mr. Jordash, in support of the said Application that was filed on the 4th of February, 2008;

MINDFUL of the Oral Response to the said Application made instantaneously in Court at the behest of the Chamber on Monday, the 4th of February 2008 by Mr. Charles Hardaway, Learned Counsel for the Prosecution, urging the Chamber to dismiss the said application for a week’s adjournment;

MINDFUL of the provisions of Article 17 and particularly those of Article 17(4)(b) of the Statute of the Special Court;

MINDFUL of the provisions of Rules 26bis, 73ter(c), 73ter(d), 90(f)(i) and 90(f)(ii) of the Rules of Procedure and Evidence;

MINDFUL of our Chamber Oral Decision delivered soon after our deliberation granting Mr. Jordash’s Application for a week’s adjournment and the Orders made and laid down by the Chamber in that Oral Decision;

MINDFUL of our indication in that Oral Decision that a Reasoned Written Decision will be issued;

HEREBY ISSUES THE FOLLOWING WRITTEN AND REASONED DECISION AS INDICATED IN ITS ORAL DECISION DATED THE 4TH OF FEBRUARY 2008:

I. BACKGROUND

1. The facts briefly stated are that Learned Counsel, Mr. Wayne Jordash, is the Lead Counsel for the Defence Team of the 1st Accused, Issa Hassan Sesay. In the conduct of the Defence Case for his Client, he had already called 28 Defence Witnesses before he made this application on Monday, the 4th of February, 2008.
2. On Friday the 1st of February, 2008, he made an application to have this case adjourned to Tuesday the 5th of February, 2008, so as to dispose of time to prepare for the calling of the other witnesses. He complained of a lack of financial resources which he says were denied him by the Registrar.
3. During a Status Conference held by the Chamber on the 27th of November, 2007[1], Mr Jordash, after a lengthy exchange with the Chamber on the duration of his client’s case, informed us that he would close it by mid March 2008; a commitment which he reiterated in Court on the 19th of February, 2008.[2] We considered this date line reasonable in the circumstances.
4. By an Oral Ruling issued thereafter, following a protracted deliberation, the Chamber dismissed Mr. Jordash’s application for want of any legal basis to justify its being granted. We ordered that the next witness be called. He was, and after concluding his evidence on the same day, we adjourned the proceedings to Monday, the 4th of February, 2008, for the next Defence Witness to be called.
5. On the 4th of February, 2008, when we resumed the session with the expectation of taking a new Defence Witness, Mr. Jordash produced before the Chamber, a filed, yet-to-be served, but what we perceived to be an application similar to the one we had dismissed on Friday the 1st of February, 2008, and which he this time, introduced in the form of a written Motion. He filed it on that same day, the 4th day of February, 2008. In the application, he sought a week’s adjournment of the proceedings.
6. The Chamber, after another prolonged deliberation immediately after hearing the submissions, granted Mr. Jordash’s application for the one week’s adjournment but ordered that he respects his engagement to the Chamber made and taken on the 27th day of November, 2007, that the case of his client shall be closed on or before Thursday, the 13th of March, 2008.

II. SUBMISSIONS OF THE PARTIES

7. The submissions, briefly stated, are as follows.

FOR THE APPLICANT:

8. Basically, Mr Jordash’s application is premised on a lack of adequate resources by his Team to secure the attendance of and to prepare for the testimony of his Defence witnesses. In particular, Mr. Jordash again raised the issue of the imperative necessity for additional resources to be provided for him to engage another Counsel for the duration of his Client’s case.
9. He argues that he and Ms. Ashraph, a Counsel in his Team, are over-worked and overstretched and cannot, under such circumstances, and with the limited human resources which they dispose of, properly ensure the defence of their client as provided for in Article 17(4)(b) of the Statute.
10. Mr Jordash, to emphasise the point he is further making, puts across the following argument ‘No other Personnel at the Special Court is expected to work under such working periods for such extended periods of time and the working conditions are taking a toll on the physical and mental well-being of our team members.’[3] He further argues that he lacks insufficient team members of sufficient experience to prepare witnesses.
11. He again restates the argument that the case against Issa Sesay on its own and/or in relation to the other cases at the Special Court, is sufficiently serious, complex and sizeable to amount to exceptional circumstances which should warrant the provision of additional resources under the special consideration clause in the Legal Services Contract.
    
12. In summary, the Sesay Defence Team premises its application for the one week’s adjournment on the following grounds:

i. the inability to properly identify and prepare viva voce witnesses for immediate trial readiness; and

ii. the inability to carry out the remaining associated tasks given the number of lawyers on the Team.

FOR THE PROSECUTION:

13. Mr. Charles Hardaway, Learned Counsel for the Prosecution was only served with the Motion in the course of the presentation of this application by Mr. Jordash in Court that morning. He of course could not provide a written reply to it as would ordinarily have been expected. In view of the instantaneity and urgency of the application, Mr. Hardaway, prompted by the Chamber on his readiness to make any submissions impromptu in reply to Mr. Jordash’s application and submissions, had this to say:

‘Your Honour, for the record, the Prosecution does oppose the Defence request for an adjournment. The major basis for that opposition is the fact that the Prosecution’s Case closed on the 2nd of August 2006. We are now in February 2008. It’s approximately 18 months since the close of the Prosecution’s case for the Defence in - for the Defence for the First Accused in order to get their witnesses together.’[4]

14. In essence, the focus of Mr Hardaway’s objection to granting this application is on the fact that the Defence cannot be entitled to a week’s adjournment for the reasons advanced when they have had all the time to organize and prepare their Defence Case since the Prosecution closed its case on the 2nd of August, 2006.

III. APPLICABLE LAW

15. Article 17 of the Statute, in its provisions that are relevant to this application provides as follows:

Article 17(1): All Accused shall be equal before the Special court.

Article 17(2): The Accused shall be entitled to a fair and public hearing subject to measures ordered by the Special Court for the protection of victims and witnesses.

Article 17(4): In the determination of any charge against the Accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality.

Article 17(4)(b): To have adequate time and facilities for the preparation of his or her defence and to communicate with Counsel of his or her own choosing.

16. Rule 26bis of the Rules of Procedure and Evidence provides as follows:

The Trial Chamber and the Appeals Chamber shall ensure that a trial is fair and expeditious and that proceedings before the Special Court are conducted in accordance with the Agreement, the Statute and the Rules with full respect for the rights of the Accused and due regard for the protection of victims and witnesses.

17. Rule 73ter(c) of the Rules provides:

The Trial Chamber or a Judge designated from among its members may order the defence to shorten the estimated length of the examination-in-chief for some witnesses.

18. Rule 73ter(d) of the Rules provides:

The Trial Chamber or Judge designated from among its members may order the defence to reduce the number of witnesses, if it considers that an excessive number of witnesses are being called to prove the same facts.

19. Rule 90(f) provides as follows:

The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to:

90(f)(i). Make the interrogation and presentation effective for the ascertainment of the truth;

90(f)(ii). Avoid wasting time.

IV. DELIBERATION

20. The Chamber would like to observe here that Mr. Jordash has been Counsel on the Sesay case since July 2003 and has constantly, very consistently, and without any interruptions, been present to defend his Client’s interests in Court since the Prosecution commenced their case on the 5th of July, 2004 and closed it on the 2nd of August, 2006.
21. On the 25th of October, 2006, the Chamber issued its Rule 98 Decision on this case. This Decision put each of the Defence Teams on notice regarding those allegations contained in the indictment which it considered, cannot be sustained because no evidence capable of supporting them had been adduced by the Prosecution.

1. Basis of the Defence Application

22. Mr Jordash affirms that ‘on numerous occasions since the filing of the Motion, the Defence has raised the issue in Court and has complained of the unreasonable burden being placed upon Counsel and the Legal Assistants due to the size and complexity of the Defence Case and the inadequate resources provided by the Registry’.[5]
23. The Sesay Defence states that it is, in the circumstances, ‘unable to effectively prepare the defence with the current resources and in time to continue without delay’ and that the ‘Defence applies for a one week adjournment’ and furthermore, that ‘the Defence anticipates that it will require further adjournments within the next few weeks as the existing team continues to struggle to cope with the influx of witnesses, the associated legal tasks, and the various contingencies which arise.’[6]
24. ‘Since 7th January 2008’, the Sesay Defence states, ‘Ms. Ashraph and Mr. Kneitel have re-interviewed/proofed approximately 45 witnesses coming through the witness house. Witnesses to be heard live in Court were also interviewed by Mr. Jordash. Currently, as the Sesay Defence Team is expecting 46 witnesses into the witness house for re-interview in order to determine which of the witnesses will be put before the Court either viva voce or under Rule 92....every witness will have to be interviewed concerning their knowledge of the whole conflict in order for the Defence to make sensible and reasoned decisions about the merits of the particular witness.’[7] Mr. Jordash further argues that ‘it is simply not possible to prepare, proof and call up to 100 witnesses selecting from a possible 320, with only 3 people.’[8]
25. From the above submissions, it is clear that the Application for a week’s adjournment made by Mr. Jordash is premised on a lack and absence of Defence Witnesses in Court and also on the lack of resources to put together a team that can cope with and execute the tasks that the Sesay Defence has to assume in order to continue to call witnesses and to properly present their Client’s case. The application for one week’s adjournment, in effect, was made because Learned Lead Counsel, Mr. Jordash, had run out of Defence Witnesses to enable him to continue with presenting his client’s case on the day he made the application.
26. Mr. Jordash, in order to strengthen his arguments, makes an analogy between his Staff and Staff Members of the Special Court by stating that ‘no other personnel at the Special Court is expected to work under such working conditions for such extended periods of time...’.[9] He further argues that because of the size and complexity of his case, he should be granted additional resources so as to enable him to employ an additional Counsel to reinforce his Team.
27. In this regard, we would want to state here, in order to dispose of these 2 issues, that neither Learned Counsel, Mr. Jordash, nor any of his Collaborators who are all privately and independently contracted by the Special Court, are Staff Members within the definition of the Staff Rules and Regulations of the Special Court and furthermore, that the issue of additional remuneration for his team has now been laid to rest following our recent Decision[10] on this very subject dated the 12th of February, 2008.

2. Mr. Jordash’s Implication in this Case

28. In arriving at a decision on this Application, it is important to examine Mr. Jordash’s implication in the case. In this regard, the Chamber would like to again observe here that he has been Counsel for the 1st Accused, Sesay, since July 2003. He was subsequently engaged for this purpose by virtue of a Legal Services Contract[11] with properly defined terms including a remunerative clause which Mr. Jordash signed up to, not only as Assigned Counsel but also, as Case Manager for the Sesay Defence Team.
29. In his capacity as a Case Manager of the Team, Mr. Jordash, under the agreed remuneration, took on the responsibility of ensuring and preparing diligently and well in advance, a proper defence strategy for his Client as the Prosecution’s case proceeded. This was to be achieved by distilling, as the Prosecution’s case progressed, the evidence adduced on the material facts that are relevant to the allegations which have been made in the Indictment and in testimony against his Client who, through his regular and constant paper briefs to, and occasional in-Court consultations with Mr. Jordash in the course of the proceedings, has all along manifested his personal, factual, and strategic mastery of his case.
30. More importantly, Mr. Jordash, in close consultation with his client, should have determined progressively, and this, since the commencement of the Prosecution’s case on the 5th of July, 2004, the identity of the Defence Witnesses that were needed to rebut those allegations and facts that were testified to by Prosecution witnesses, in fulfilment of this objective.
31. We say this because Mr. Jordash had to depend on his client to assist him to identify issues and witnesses, to interview them, to carry out a forensic analysis of their proposed evidence, and thereafter, to determine those witnesses he was to call in order to properly present his Client’s case. The Chamber considers that this process should have been envisaged and commenced since July 2003 by Mr. Jordash when he came into this case and after which he has maintained a very close Solicitor/Client relationship with the 1st Accused up to date.
32. We in fact have cause to conclude, from the very lengthy, searching and thorough questions in cross examination of the Prosecution Witnesses by Mr. Jordash during the conduct of their case, that he was already sufficiently equipped with a good knowledge of the facts and information on which he based that exhaustive and thorough cross examination.

3. An Overview of the Proceedings

33. In order to understand the Decision and Orders made by the Chamber on this application, a historical overview of the proceedings before us is, to our mind, necessary.
34. In effect, this Chamber was seized of 2 cases: the CDF and the RUF Trials. As part of our strategy to achieve the statutorily desired objective of expeditious trials for each the 3 Accused Persons in the 2 Cases, we put in place, a system of double tracking with the 2 cases, alternating their hearings every 6 weeks. In this context, if we were hearing the CDF case for instance, Mr. Jordash and his Defence Team, during the duration of the CDF proceedings, were released from the intensity of Courtroom activity. This enabled or should have enabled him and his Team to dedicate themselves entirely to the preparation of all components and aspects of their RUF case.
35. The CDF case, which was the first that we started, commenced on the 3rd of June, 2004. The RUF Case kicked off on the 5th of July, 2004. We alternated their hearings accordingly. The Prosecution in the RUF case, called a total of 85 Witnesses to prove its case against the 3 Indictees. The Prosecution closed its RUF proceedings on the 2nd of August 2006. We rendered our Rule 98 Decision on the 25th of October, 2006.
36. Since we were still on with the CDF Case, it was expected that Mr. Jordash would commence his client’s defence case in January 2007.[12] He indicated a preference for the month of April 2007[13] so as to allow him time to interview and prepare his witnesses for testimony. In view of the importance the Chamber attached, and still attaches to the necessity for Mr. Jordash to properly prepare his Client’s case, we fixed the commencement of his Defence case for the 3rd of May, 2007 during which time the Chamber counted on the Sesay Defence Team to take advantage of the late start of their Client’s case, to identify, interview, and fully screen their witnesses in preparation for testimony with effect from that date.
37. In a Chamber scheduling Order dated the 30th of October, 2007 fixing the date for the commencement of the defence case for the 1st Accused, Sesay, we imposed on the Sesay Defence Team, the lighter burden and obligation, to file, on or before the 16th of February, 2007, a list of the witnesses they intended to call and to provide to the Prosecution, in lieu of their entire statements,[14] only a detailed summary of the facts they were to testify to.

4. Presentation of the Sesay Defence Case by Mr Jordash

38. The Sesay Defence Team, led by Learned Lead Counsel, Mr. Jordash, after this long lapse of time, commenced presenting its case on the 3rd of May, 2007 with the testimony of the 1st Accused himself, pursuant to the provisions of Rule 85(c) of the Rules of Procedure and Evidence. His testimony was concluded only on the 26th of June 2007. Thereafter, the Chamber heard the testimony of the 2 other Defence witnesses[15] from the 26th to the 28th of June, 2007, and adjourned the RUF trial to October, 2007.
39. During this interim period of the adjournment of the continued presentation of the Sesay Defence Case, it was naturally expected that the Sesay Defence Team would exercise all diligence to mobilize all their potential and essential witnesses in order to avoid any testimonial interruptions. It is on this understanding that we resumed hearing 2 Sesay Defence Witnesses[16] on the 4th and 5th of October, 2007 even before we delivered the Sentencing Judgement in the CDF Case on the 9th of October 2007. After that Judgement, we fully resumed the proceedings in the RUF Case with the hearing of the testimony of the next series of the Sesay Defence Witnesses.
40. The Chamber would like to indicate here that the decision it is taking on this application is predicated on Mr. Jordash’s long involvement in the Sesay Defence Case and on the apparent repetitiveness of some facts in the testimony of Witnesses who have so far testified for the 1st Accused.

5. The Chamber’s Stand on Multiplicity of Witnesses

41. In a Status Conference held on the 27th of November, 2007,[17] we pointed this out very lengthily to Learned Counsel Mr. Jordash and invited him to cut down on the number of his witnesses. He subsequently did but not as drastically as we expected.
42. In fact, it is on the basis of repetitious testimony of a number of his witnesses on certain issues, that we ordered Mr. Jordash, on Monday, the 4th of February, 2008, whilst ruling in favour of his application for a week’s adjournment, to reduce to a strict minimum, his long list of witnesses and to avoid calling those who are not only repetitive of each other, but also contribute largely to unnecessarily delaying the proceedings and increasing the size of the Sesay case.
43. This duplication of the evidence, in the Chamber’s view, has, to a large extent, occasioned the heavy work load that Mr. Jordash is now complaining about. We are compelled, as a Chamber, to observe that it has also resulted in an unnecessary consumption of valuable Court time and sometimes rendered inefficacious, the application of the notion of judicial economy.
44. It is furthermore, the Chamber’s view, that if the witnesses on these issues which are regarded as relevant for purposes of enabling the Defence to challenge the allegations in the indictment and the testimony of the Prosecution witnesses were properly assessed, the Sesay Defence Team would drastically have minimised the burden of work which it is now complaining about. Indeed, they should in fact have reduced to a strict minimum, the number of witnesses that is necessary to establish these facts for an eventual assessment particularly so where we have always, as a Chamber, at one time or the other in the course of these proceedings, given this directive to all the Parties in this Case.

6. Repetitive Testimony

45. A demonstration of such testimonial repetitiveness relates to the evidence led on the following issues and facts that the Defence seeks to establish, coupled with an unnecessarily detailed emphasis and consistently repetitive testimony relating to the pre - 30th November 1996 events that have a connection only to the pre-indictment era of the conflict, even if it is conceded that a historical introduction of these issues is, to a limited extent, relevant.
46. Evidence of repetitiveness in testimony includes mainly the following amongst others:
    1. That civilians who were working on Sesay’s and in other farms or on RUF projects were well treated and well fed by Sesay.
    2. That Sesay was generous and kind to the civilians.
    100. That the RUF provided free Schools and free Education to all civilian children as well as to those of the combatants.
    4. That there were RUF hospitals with RUF Medic Staff and that free consultation, treatment and drugs were provided to civilians by RUF staff in those hospitals.
    5. That civilians who cultivated farms for RUF Commanders did so wilfully, happily, singing and dancing in the process, were very well fed, and were never forced, least still, at gunpoint, to do the work.
    6. That civilians who were involved in diamond mining were not forced by the combatants to perform this task but rather, did so voluntarily and not at gun point and that they did it in their interests because they took a share in the proceeds on a conventional quota - 2 pile system that was agreed upon with their ‘Supporters’ who employed, supported and took care of them.
47. We observe in this regard, that his Defence strategy which consists of leading evidence of Defence witnesses who are unnecessarily numerous and repetitive of each other on the same or similar facts, contributes to delaying the proceedings and to violating the very statutory rights of his Client to a fair and expeditious trial which he is seen, and rightfully holds himself out, to be protecting.
48. We say this with due regard to the fact that the Prosecution, which after-all carries the heavier burden than the Defence in criminal proceedings, after listing 266 witnesses, ended up calling only 85 of them to prove their case against the 3 Accused Persons whereas the Sesay Defence Team for Sesay alone, on the contrary, still projects calling as many as more than 100 witnesses to establish his defence and to cast a shadow of doubt on his culpability.
49. On this issue of the number of witnesses that are required to establish any Party’s case, this Chamber has had this to say in its Decision on the Sesay Defence Application for the Attribution of Additional Resources on the grounds, where Mr. Jordash argued, inter alia, of the bigger size and complexity of the Sesay case as compared the others in the Special Court, and particularly, Charles Taylor’s in The Hague:

‘In relation to the issue of the size and complexity of the Sesay Case, the Chamber is of the opinion that it is not necessarily the number of counts on the indictment or the extensive number of witnesses that a Party seeks to call or in fact calls to establish his case that determines its size or its complexity...... We say this because it is, on the contrary, trite law that what is necessary for judicial purposes is the quality of the witnesses who, even though numerically small, can better and more effectively establish any given case than if their numbers were multiplied. In this regard, we lay more emphasis on the quality, the credibility, the focus and the probative value of the testimony of witnesses on issues which are relevant to the core issues that relate to the crimes alleged in the Indictment.’[18]

50. In this regard, the Chamber would like to observe here that if the Sesay Defence Team has characterised its case as big and complex, it would appear to be more because of their Defence strategy of multiplying its own burden by investing their useful energies in interviewing, proofing, and calling a number of witnesses who have turned out to be manifestly repetitive of each other in their testimony on certain facts and issues.
51. In order to resolve the issue of multiplying witnesses on the same facts and issues, the Chamber would, as we have always done in the course of these proceedings, rely on and apply the provisions of Rule 73ter(d) of the Rules which stipulate as follows:

The Trial Chamber or Judge designated from among its members may order the Defence to reduce the number of witnesses, if it considers that an excessive number of witnesses are being called to prove the same facts.

7. Corroboration in International Criminal Justice

52. We take the stand against the practice of an unnecessary multiplicity of witnesses in proceedings, not only because of its repugnancy to the judicial process and practice but also because this Chamber is cognizant of the well established principle in International Criminal Law that there is no requirement that the evidence of a single witness as to a particular fact be corroborated before it can be accepted. [19] On this issue, and to reinforce this principle, it was held in the Akayesu Case that ‘the Chamber can rule on the basis of a single testimony provided such testimony is, in its opinion, relevant and credible’. [20] It was also held by the Appeals Chamber of the ICTY in the Alekovski Case that ‘the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration’. [21]
53. The Chamber recognises however that it is a normal and accepted principle of practice that a party can only credibly establish its case through evidence and better still, where it is testimonially and or documentarily corroborated, by calling more witnesses than just one. The Chamber in this regard, is indeed cognisant of the need to have some pieces of evidence to be corroborated in certain circumstances so as to enhance its probative value when the Chamber is evaluating the credibility of all the witnesses who have testified to these facts.

8. Corroboration and Repetitiveness

54. Although we say here that corroboration should not be ignored in certain situations and even where this may not be statutorily required, we equally say that this cardinal and well established principle should not provide a platform or a justification for Parties to adduce evidence that is unnecessarily long or repetitive even if it were conceded that these repeated facts which rebut or contradict the core allegations that have been made by the Prosecution in the Indictment as well as in the testimony of their witnesses, were relevant.
55. The Chamber would like to mention here that Learned Lead Counsel, Mr. Jordash, has, on some occasions, reminded this Chamber of the fact that his Client has been held in detention since March 2003[22] and that he is entitled to a speedy and expeditious trial. Even though we share Mr. Jordash’s view in this regard, it is also true, and we have often reminded him of his own responsibility to contribute to our achieving this goal through the length of his questioning in cross examination during the Prosecution’s case then, and now, in his examination-in-chief and re-examination of his Defence Witnesses.

9. Have the Provisions of Article 17(4)(b) of the Statute been Violated?

56. The Sesay Defence Team alleges that the rights of their Client, under Article 17(4)(b) of the Statute, have been violated. In this regard, the Chamber holds the view that if the breach of that provision is entirely or contributively occasioned by the conduct of the Accused’s Defence Team as we hold, in the light of the preceding analysis, it is indeed the case here, Mr. Sesay would be, and is in fact estopped from complaining of or seeking a redress for such a breach on the grounds of the legal maxim of volenti non fit injuria.
57. We say this because from the foregoing analysis, it is abundantly clear that the Defence strategy and options adopted by the Sesay Defence Team of calling witnesses who have proven to be repetitive of each other with the attendant consequences of duplicating the evidence, hence delaying the proceedings by unnecessarily increasing the size and duration of the case which in itself is ordinarily not as complex as Mr. Jordash is characterizing it, is and remains largely contributive to any claims or allegations that are made, of a breach of Sesay’s rights under Article 17(4)(b) of the Statute. The Sesay case, as we have implicitly held,[23] can after all, be conducted with the now available resources placed at their disposal by the Registrar, and which we consider reasonably adequate in the context of the real and objective dimensions of the case.
    
58. It is therefore our considered opinion, as we have held in our Decision on Additional Funding, that the Registrar’s decision in these circumstances, does not violate the rights of the Accused under Article 17(4)(b) of the Statute. We reiterate this stand here and accordingly dismiss Mr. Jordash’s submissions in this regard for want of merit.

10. Equality of Arms

59. Mr. Jordash, again to buttress his case as to why he is unable to mobilize his Defence Witnesses so as to meet up with the hearing schedule of the Chamber, argues that the principle of equality of arms vis a vis the Prosecution has been violated in this case and states as follows:

‘I note that during the Prosecution Case of a similar size, the Prosecution relied upon at least 4 rotating in-Court Counsel as well as a full time Case Manager, several interns and at least, 10 investigators.’

60. Even though Mr. Jordash has not specifically mentioned the case in question, the Chamber would like to draw Learned Counsel’s attention to the fact that even if it were conceded that the Prosecution has 4 rotating lawyers, the fact he has not mentioned is that they assume the responsibility of prosecuting 3 Accused Persons each of who has a Defence Team with at least 3 Counsel in each Team. Counsel in these Defence Teams equally relay and back themselves up just as Prosecuting Counsel do.
61. In addition, and as we have already observed, the Prosecution bears a greater burden of proof than the Defence does in any criminal proceeding. In this regard, and we wish to reiterate, that it is the Prosecution that bears the heavy burden of proving the case against the Accused Persons beyond reasonable doubt. The Defence only bears the lighter burden to ‘poke specifically targeted holes’[24] into, or generally to raise a reasonable doubt in the Prosecution’s case.
62. The Chamber therefore, in dismissing once more, Mr. Jordash’s submission in this application where he again alleges that the principle of equality of arms has been violated, relies on and confirms the position it took on a similar issue that he raised earlier, in the Additional Funding Decision[25] where we had this to say:
    

‘In addition, the Chamber would like to reaffirm the principle that the Prosecution bears the burden of proving beyond a reasonable doubt, every count and every essential element of those counts, while the Defence only needs to raise a reasonable doubt in order to secure the acquittal of the Accused. This reality, we consider, might justify the attribution of more resources and more time to enable the Prosecution to accomplish this very heavy and delicate task.’

V. CONCLUSION

1. The Impropriety of the Application for a Week’s Adjournment

63. From the foregoing analysis and given the extraordinarily long time that the Chamber had placed at the disposal of the Sesay Defence Team before now to identify, assemble and prepare their witnesses for testimony, our reaction to Mr. Jordash’s application of the 4th of February, 2008 for a week’s adjournment and for reasons that are stated in it, was one of astonishment.
64. This was in part because of the engagement Mr. Jordash had made earlier and reiterated in Court on the 19th of February, 2008[26] and the latitude the Chamber had given to the Sesay Defence Team to prepare their witnesses in readiness for testimony. We observe here that the Chamber, issued constraints and orders, to Mr. Jordash that whilst one witness is testifying, there must be at least 2 standby witnesses ready to step in the Courtroom either as soon as the testimony of one is concluded, or in the event of any unforeseen eventuality.[27] This application therefore, in the light of the above, amounts to a breach of this Chamber’s Directives and Orders and should ordinarily have warranted its outright dismissal for being unjustified.
65. In view however of the fact that We reviewed the implications of a dismissal of the application and the negative impact it might have on the continuation and expeditiousness of these proceedings, the Chamber, after a deliberation on all the issues at stake, has decided to exceptionally grant the application for a week’s adjournment in order to enable Mr. Jordash, who in fact had no witnesses at all ready to testify before us on the day he made this application, to reorganize himself within that week and to prepare the rest of his witnesses for testimony from Tuesday, the 12th of February, 2008, until the close of his Case which the Chamber has fixed for the 13th of March, 2008.

VI. DISPOSITION

66. The Chamber, in order to ensure the expeditiousness of the trial as dictated by Article 17(4)(c) of the Statute and Rule 26bis of the Rules of Procedure and Evidence, and by virtue of the provisions of Rule 73ter(d) of the said Rules, issues as following Orders:
    1. That the Case is accordingly adjourned to Tuesday, the 12th of February, 2008.
    2. That the Defence Case for 1st Accused must be closed on or before Thursday, the 13th of March, 2008 in conformity with the engagement made by Learned Lead Counsel, Mr. Jordash, during the Status Conference that was held on the 27th of November, 2007.[28]
    3. That Mr. Jordash further reduces to a strict minimum, the list of Witnesses who he intends to call for the Defence of the 1st Accused.
    4. That the reduced list of the Defence witnesses who are yet to be called, be filed by Mr. Jordash on or before the 12th of February, 2008, including a detailed summary of their testimony with a view to avoid repetitiveness and an unnecessary duplication of evidence.[29]

The Chamber further consequentially Orders as follows:

1. That the Sesay Defence Team shall review the list of all the remaining witnesses to ascertain that they are not repetitive of previous testimony.
2. That very limited emphasis should henceforth be placed on facts which have already been testified to or to those which relate to episodes and events prior to the 30th of November, 1996.
3. That the Orders relating to a multiplicity of witnesses and an unnecessary duplication of evidence or repetitiveness in testimony shall apply to all the Defence Teams who are yet to call Defence Witnesses in the RUF Case.
4. THAT THESE ORDERS BE CARRIED OUT.
   

Appended as an Annex to this Decision is our Chamber Decision dated the 12th of February, 2007, in Case No. SCSL-04-15-T, On the Sesay Defence Team’s Application for Judicial Review of the Registrar’s Refusal to Provide Additional Funds for an Additional Counsel as Part of the Implementation of the Arbitration Agreement.

[1] Transcript of 27 November 2007, Status Conference, p. 21, paras 2-9.
[2] Transcript of 19 February 2008, p. 26, lines 22-23.
[3] Prosecutor v. Sesay, Kallon and Gbao, SCSL-2004-15-T, Sesay Defence Application for a Weeks Adjournment - Insufficient Resources in Violation of Article 17(4)(b) of the Statute of the Special Court (TC), 4 February 2008, para 16. [Sesay, Application]
[4] Transcript of 4 February 2008, p. 52, lines 19-26.
[5] Sesay, Application, supra note 3, para 1.
[6] Ibid, para 8.
[7] Ibid, para 9.
[8] Ibid, para 13.
[9] Ibid, para 16.
[10] Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Decision on the Sesay Defence Team’s Application for Judicial Review of the Registrar’s Refusal to Provide Additional Funds for an Additional Counsel as Part of the Implementation of the Arbitration Agreement of the 26th of April 2007 (TC), 12 February 2008. [Sesay, Decision on Judicial Review]
[11] Ibid, Legal Service Contract dated the 1st of October, 2005, signed by Mr. Jordash as Assigned Counsel and Case Manager for the Sesay Defence Team.
[12] Transcript of 27 October 2006, p. 37, lines 28 and 29 and p. 38, lines 1-2. Mr. Jordash said here that he would have preferred to start in January but that ‘there are certain things which have to be done to get ready’.
[13] Transcript of 27 October 2006, p. 15, lines 14, 15 and 21. Also p. 16, lines 2-9 in a Status Conference and on p. 37, lines 14 & 15. Transcript of 2 August 2006, p. 86, paras 23-26 on Mr. Jordash’s wish for the Defence Case beginning as soon as possible in the New Year at the latest. Also p. 87 lines 9-19. Further See p. 90, lines 16-21.
[14] Rule 73ter(B)(d)(iv), para 2, of the Rules of Procedure and Evidence.
[15] Testimony of DIS302 and DIS301.
[16] DIS074 and DIS177.
[17] Transcript of 27 November 2007, Status Conference.

[18] Sesay, Decision on Judicial Review, supra note 10, paras 23-24.
[19] Judge Richard May and Marieke Wierda, International and Comparative Criminal Law Series - International Criminal Evidence, (New York: Transnational Publishers, 2002), p. 120.
[20] Prosecutor v. Akayesu, ICTR-96-4-T, Judgement (TC), 2 September 1998, para 135.
[21] Prosecutor v. Alekovski, IT-95-14-1/A, Judgement (AC), 24 March 2000, para 62.
[22] Transcript of 1 February 2008, p. 69.
[23] Sesay, Decision on Judicial Review, supra note 10.
[24] Prosecutor v. Norman, Fofana and Kondewa, SCSL-04-14-T, Order to the First Accused to Re-file Summaries of Witness Testimonies, 2 March 2006 at p. 3, quoting Prosecutor v. Oric, IT-03-68-A, Interlocutory Decision on Length of the Defence Case, 20 July 2005, para. 7.
[25] Sesay, Decision on Judicial Review, supra note 10, para 39.
[26] Transcript of 19 of February 2008, page 26, lines 22-23.
[27]Prosecutor v. Sesay, Kallon and Gbao, SCSL-2004-15-T, Consequential Orders Concerning the Preparation and Commencement of the Defence Case (TC), 28 March 2007, para 10.

[28] Transcript of 27 November 2007, p. 21, paras 2-9.
[29] Transcript of 4 February, 2008, p. 65, lines 15-29.