1 Monday, 12 January 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.28 p.m.
5 [Trial Chamber confers]
6 JUDGE ORIE: Good afternoon at this first hearing in 2009.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Thank you, Your Honours. Good afternoon
9 Your Honours. Good afternoon to everyone in and around the courtroom.
10 This is case number IT-06-90-T, The Prosecutor versus Ante Gotovina, et
12 Thank you, Your Honours.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 Mr. Margetts.
15 MR. MARGETTS: Mr. President, we're ready to call our next
16 witness, Dr. John Clark.
17 JUDGE ORIE: Yes, but I thought you would give us an opportunity
18 to wish everyone the best for the year to come in his personal life and
19 in his health irrespective of the positions we are in and the roles we
20 are playing in this courtroom. That's one.
21 Although I have taken notice that you are ready, Mr. Margetts. A
22 few other matters which I would like to briefly raise, this being the
23 following: We have come to a point in relation to the 54 bis application
24 and decision taken on that and further reports received since then that
25 the Chamber would like to receive from the parties their views on where
1 we are now should there be any further orders or is this -- has the
2 matter been concluded until now. The Chamber would like to receive
3 submissions from the parties, if possible, within one week, to give your
4 views on what the Chamber is expected further to do in relation to this
5 application. That's one.
6 Then, second, apart from the issue of what I could call the
7 Pittman letter, we have received a letter on 29th of December in which
8 applications are made even though not for the first time, at least.
9 These are more or less applications rather than claims in relation to
10 confidentiality. And before the Chamber would decide on the matter, the
11 Chamber would like to give an opportunity to the parties to make
12 submissions on the requests, applications, whatever you call it, made in
13 the letter of the 29th of December, in response to the Pittman letter.
14 MR. MISETIC: Your Honour, first, I'm not sure if we should be in
15 private for session for that or not.
16 JUDGE ORIE: I have not given any further details specifically
17 for that reason. But if you know what letter I'm talking about, then the
18 only thing I revealed is that it's 29th.
19 MR. MISETIC: I know the letter of which you speak. I think it
20 was the 19th, if I'm not mistaken.
21 JUDGE ORIE: I have written down, it the 29th.
22 MR. MISETIC: I think the letter is dated the 19th, but I could
23 be wrong.
24 JUDGE ORIE: Okay. I could be wrong as well.
25 MR. MISETIC: Okay.
1 JUDGE ORIE: But it's again the Rule 70, Rule 54 bis matter which
2 is raised in that letter, and the Chamber before where we earlier may
3 have responded to a claim, we feel that we are now more or less invited
4 to decide on a certain matter, and the Chamber would like to receive
5 submissions by the parties on that matter, if possible, the matter is
6 known to the parties, within still this week.
7 MR. MISETIC: Your Honour, I do need to clarify exactly what you
8 would like submissions on so ... there was an issue.
9 JUDGE ORIE: Perhaps we go into private session please.
10 MR. MISETIC: Yes.
11 [Private session]
11 Page 14126 redacted. Private session.
10 [Open session]
11 THE REGISTRAR: We're back in open session, Your Honours.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 MR. MARGETTS: Mr. President, just to be clear, of the first two
14 submissions will be written submissions.
15 JUDGE ORIE: Yes, we expect them to be written submissions.
16 MR. MARGETTS: Thank you.
17 JUDGE ORIE: Yes.
18 Mr. Margetts, you're ready to call your next witness. We'll
19 proceed because there's still, of course, a motion pending on the --
20 still a motion pending on the admission of the expert report --
21 MR. KEHOE: That's correct, Your Honour.
22 JUDGE ORIE: -- of the next witness.
23 The Chamber has decided that on the basis of the objections
24 raised until now, it will not decide not to admit the expert report and
25 that we'll proceed on the basis that the Chamber will consider admission
1 and -- of course, the Chamber will write down the reasons why it does not
2 accept the objections which are mainly based in the -- when given notice
3 et cetera. Well, the whole -- the main reasons for objecting against the
4 admission of the report. That is denied. We'll give the reasons in
5 writing, and we'll proceed on the basis, although no final decision has
6 been made yet on admission of the report, but we'll proceed on the basis
7 that the Chamber seriously considers admission of the report, which still
8 allows for critical questions which might change your mind as far as
9 admission is concerned. But the matter raised has not given us a reason
10 not to admit the report until now.
11 MR. KEHOE: There is yet another issue, Mr. President, besides
12 that. And that is obviously taken from the decision by the Office of the
13 Prosecutor to move ahead with Dr. Clark's testimony at this juncture
14 while the appeal on the adding the 189 additional victims in their
15 clarification schedule is pending before the Appellate Chamber. As I had
16 outlined previously, we had prior to that additional 189 victims. We had
17 spent almost 3.000 hours investigating the various homicides -- or
18 killings. I don't want to say homicides. Deaths that had been set forth
19 prior to the 189 coming in.
20 Now we're at a fork in the road because we have Dr. Clark, and if
21 I take it from the Prosecution's plan and the evidence they intend to
22 present, evidence concerning some of those 189 individuals is going to be
23 presented to Dr. Clark.
24 Now, one or two things can happen or would happen. One, on the
25 appellant side all of that 189 list is stricken, and all his evidence is
1 stricken as well.
2 Or, two, if the Appeals Chamber sustains the Trial Chamber's
3 decision, we, of course, will be coming back and ask for -- I can't
4 believe it would be less than a three-month delay to investigate the 189
5 murders that the Office of the Prosecutor decided to move forward with.
6 I will say that will unquestionably bring to bare bringing Dr. Clark back
7 for additional testimony, if need be, once that investigation has
9 So I present that, Judge, because, of course, on behalf of
10 General Gotovina, we don't want to waive any positions, but I also wanted
11 to be completely candid with Your Honour that to a certain extent we are
12 prepared to cross-examine, but we certainly haven't, although I have
13 touched on it, we certainly have not come near doing the proper
14 investigation on -- on another 189 deaths that have been presented.
15 So that's where we are. If the Prosecutor chooses to move
16 forward to led evidence on those 189, which I'm sure they have given what
17 I've seen in their evidence to be presented, that's going to trigger a
18 sequence of events that we will revisit at a later date, should the Trial
19 Chamber's decision be sustained. Of course, if it is not sustained, we
20 will move to strike all of that evidence as well as all testimony that
21 the Prosecutor now -- is now attempting to elicit from Dr. Clark.
22 JUDGE ORIE: Yes. Your position is perfectly clear that the
23 Chamber is put on notice that there may be an application, depending on
24 the circumstances, what the Appeals Chamber will decide. That you would,
25 also depending on what kind of evidence is elicited from the witness by
1 the Prosecution, that there's a fair chance that you would ask for more
2 time and for Dr. Clark to be re-called.
3 MR. KEHOE: Yes.
4 JUDGE ORIE: Yes. That's ...
5 [Trial Chamber confers]
6 JUDGE ORIE: Mr. Margetts, you're ready to call your next
8 MR. MARGETTS: Yes, Mr. President.
9 JUDGE ORIE: And that will be Dr. Clark.
10 MR. MARGETTS: That will be Dr. John Clark.
11 JUDGE ORIE: Yes.
12 [The witness entered court]
13 JUDGE ORIE: Good afternoon.
14 Good afternoon, Mr. Clark.
15 Before you give evidence in this Court, the Rules of Procedure
16 and Evidence require you to make a solemn declaration that you will speak
17 the truth, the whole truth, and nothing the truth. The text is now
18 handed out to you by Madam Usher, and I would like to invite you to make
19 that solemn declaration.
20 THE WITNESS: I solemnly declare that I will speak the truth, the
21 whole truth, and nothing but the truth.
22 JUDGE ORIE: Thank you. Please be seated.
23 WITNESS: JOHN CLARK
24 Examination by Mr. Margetts:
25 JUDGE ORIE: Mr. Margetts.
1 MR. MARGETTS:
2 Q. Good afternoon, Dr. Clark.
3 A. Good afternoon.
4 Q. Dr. Clark, could you please state your full name for the record.
5 A. John Clark.
6 MR. MARGETTS: Mr. President, if I could please have 65 ter 6498
7 presented on the screen.
8 JUDGE ORIE: Larger documents take a while now and then.
9 THE WITNESS: Yes, I can imagine.
10 JUDGE ORIE: Yes.
11 MR. MARGETTS:
12 Q. Dr. Clark, we're still waiting for the Croatian version to appear
13 on the screen. But if you look at that first page there, do you
14 recognise that as your curriculum vitae?
15 A. Yes, I do.
16 MR. MARGETTS: And, Mr. President, if we can just scroll through
17 that so Dr. Clark can confirm each page of that document.
18 And Dr. Clark
19 of him recognising that is his recent update of his curriculum vitae.
20 Q. Dr. Clark, is that your completed curriculum vitae?
21 A. Yes.
22 MR. MARGETTS: Mr. President, if this document could please be
23 given an exhibit number and entered into evidence.
24 MR. KEHOE: No objection.
25 JUDGE ORIE: Mr. Registrar.
1 THE REGISTRAR: Your Honours, this document shall be given
2 exhibit number P1250. Thank you, Your Honours.
3 JUDGE ORIE: P1250 is admitted into evidence.
4 MR. MARGETTS:
5 Q. Dr. Clark, can you please confirm that you are a forensic
6 pathologist of 24 years standing?
7 A. Yes.
8 Q. And you're currently occupying the position of consultant
9 pathologist to the University of Glasgow
10 A. Consultant forensic pathologist, yes.
11 Q. Yes, thank you. And between 1999 and the year 2001, you acted as
12 the chief pathologist, forensic pathologist, engaged by the Office of the
13 Prosecutor of the ICTY to conduct autopsies of bodies exhumed in Bosnia
14 and Croatia
15 A. Yes.
16 Q. Now, in regard to the bodies that you exhumed when you occupied
17 that position of chief forensic pathologist, how many different grave
18 sites were those bodies exhumed from?
19 A. I think there were about seven main areas throughout the Balkans,
20 which includes Bosnia
21 these areas, there were quite a number of separate sites, so likely
22 Srebrenica sites, there must have been at least half a dozen different
23 sites that we looked at. In Croatia
24 number of different sites there. So all in all, probably about 15, 16
25 graves, specific grave sites.
1 Q. And were also some of those grave sites located in the Drina
2 valley, and were some located in Kosovo?
3 A. Yes.
4 Q. And of those 15 to 20 sites, how many bodies were exhumed and how
5 many bodies would have you been responsible for the forensic analysis of
6 the remains of those bodies?
7 A. I can't remember the exact figure, but I think it is around about
9 Q. And, Dr. Clark, just in respect of the Croatian exhumations, it
10 is correct, isn't it, that you were involved in examining the remains
11 that were exhumed from the Knin cemetery for a period of about six weeks
12 between the 14th of June, 2001, up to the 27th of July, 2001
13 A. Yes.
14 Q. Now, in late October last year, you were requested by the Office
15 of the Prosecutor to produce an expert report in relation to your
16 forensic examinations. Is that correct?
17 A. Yes.
18 MR. MARGETTS: And, Mr. President, if I could please have
19 65 ter 6453 presented on the screen.
20 Q. Dr. Clark, you'll see on the screen the first page there. Is
21 that the first page of the report that you produced?
22 A. Yes.
23 MR. MARGETTS: And, Mr. President, if we could move to the last
24 page and Dr. Clark could see the final page.
25 Q. And, Dr. Clark, is that your signature that you see on that page
1 and the date there, the 11th of November, 2008. Is that the date you
2 completed the report?
3 A. Yes.
4 MR. MARGETTS: And, Mr. President, if this report could please be
5 given an exhibit number marked for identification.
6 JUDGE ORIE: Yes. It's to be marked for identification for the
7 time being.
8 MR. KEHOE: Yes.
9 JUDGE ORIE: Mr. Registrar.
10 THE REGISTRAR: Your Honours, this document shall be given
11 exhibit number P1251, marked for identification. Thank you, Your
13 JUDGE ORIE: And it keep that status for the time being.
14 Please proceed.
15 MR. MARGETTS:
16 Q. Now, Dr. Clark, in the course of your preparation to give
17 evidence today, did you review this report, and are there any parts of it
18 about be that in the body of the report or alternatively in the annexes
19 that you'd like to correct or clarify?
20 A. There's the very occasional grammatical error with a comma
21 perhaps missed but not important. There's only one -- I think it is on
22 -- if I can look at my own file?
23 JUDGE ORIE: If a hard copy is available for --
24 THE WITNESS: Just to save time.
25 JUDGE ORIE: -- the witness.
1 THE WITNESS: On page 12, this is a list of the Annex A cases for
2 KN01, and the seventh case down, which is 236 B, you'll see on the fifth
3 column under minimum number of shots, I have a figure 4. That should
4 actually just be 1.
5 MR. MARGETTS:
6 Q. Thank you, Dr. Clark. Are there any further clarifications or
8 A. Nothing of -- of great importance, I would say.
9 Q. Thank you. Dr. Clark, I'd now like to refer you to page 2 of the
10 report, and it's the second-last paragraph on page 2.
11 MR. MARGETTS: Mr. President, if that page could be shown on the
12 screen. And Dr. Clark is referring to that in the hard copy of his
13 report that he has brought with him.
14 Q. And -- yes, it's the last paragraph that appears on the screen.
15 And there's a reference there to the last sentence of that last
16 full paragraph appearing. It says that:
17 "Revised numbers are given in the discussion of the individual
18 graves, but as an initial guide, of the 295 bodies, 245 were probably
19 'true' cases ... and true is in inverted the commas ... and of the 94
20 body parts, perhaps about 50 appeared to be relevant."
21 Now can you explain to the Court what you meant when you referred
22 to cases as true cases?
23 A. Within the sites particularly there KN02 and KN03, there were
24 bodies which had no injuries in them, which appeared to be hospital
25 patients because they were wrapped in hospital sheets or had other
1 hospital-related items, and we took the view that these were probably
2 people who died of mainly natural causes in hospital and should probably
3 be excluded from analysis of the other findings. We may have
4 misinterpreted that, but that's the view I took.
5 Q. And when you arrived at the conclusion that other cases were true
6 cases, what type of indicia indicated to that you they were true cases?
7 A. These were cases which appeared to be people that had not died in
8 hospitals. In other words, they had normal clothing on them. They had
9 -- a lot of them -- well, the majority of them had trauma. And for
10 considerable number of the bodies, particularly -- mainly in KN01, there
11 were photographs of them at -- before burial and clearly showing that
12 they were not hospital patients.
13 Q. Thank you, Dr. Clark, for that clarification.
14 Dr. Clark, just for clarity I'd like to just go through the
15 numbering system that appears in your report and in the annexes to your
17 And can you confirm that the bodies were exhumed from the Knin
18 cemetery and they were exhumed from four separate areas of the Knin
19 cemetery and these different areas were given the reference KN01 through
20 to KN04?
21 A. Yes.
22 Q. And can you further confirm that where bodies were exhumed, the
23 letter B was affixed to that number; and where body parts were exhumed,
24 the letter BP was affixed to the number?
25 A. Yes.
1 Q. And each of the bodies exhumed from those four locations was
2 given an individual number?
3 A. Yes.
4 Q. Dr. Clark, in -- well, yesterday, you met with representatives of
5 the Office of the Prosecutor, and you've also had the opportunity in
6 meetings with the Office of the Prosecutor in December to go through the
7 autopsy reports which are relevant to the victims that are listed in the
9 MR. MARGETTS: And I'd like at this stage, Mr. President, to
10 bring up 65 ter 6779 on the screen.
11 JUDGE ORIE: This seems to be a problem.
12 [Trial Chamber and registrar confer]
13 JUDGE ORIE: Mr. Margetts, has it been released in e-court?
14 MR. MARGETTS: Thank you, Mr. President. It may be possible for
15 us to present a hard copy of that document. I have a copy of the
16 document in my possession. It's merely -- sorry, Mr. President.
17 [Prosecution counsel confer]
18 MR. MARGETTS: Mr. President, we've had some success.
19 Q. And Dr. Clark, if you could look at the left-hand side of the
21 MR. MARGETTS: And, Mr. Registrar, if you could just go through
22 the four pages of this document.
23 And, Mr. Registrar, if you can just scan down, and if you could
24 reduce the size of that so that Dr. Clark can see that full depiction of
25 that page.
1 Q. Dr. Clark is that your signature that you see there, and is that
2 today's date?
3 A. Yes.
4 Q. And does this list represent a listing of the autopsy reports
5 relevant to the bodies that are referred to in the annexes of your
7 A. Yes.
8 Q. Thank you, Dr. Clark.
9 MR. MARGETTS: Mr. President, if this document can please receive
10 an exhibit number and be admitted into evidence.
11 MR. KEHOE: Mr. President, I received this morning. Obviously it
12 was signed by Dr. Clark this morning. I don't know about the accuracy of
13 these numbers. We have any number of problems with the numbering system
14 in these documents. So at this juncture I'm not prepared to concede that
15 this document is an accurate assessment of these numbers that we have
16 been dealing with today.
17 JUDGE ORIE: Yes. I do understand that you had no possibility to
18 verify whether the information is correct. Well, first of all, of course
19 we have numbers; and second, we have the testimony of the witness that
20 these are the relevant ones. Is there any objection against admission as
21 such? Of course you can ...
22 MR. KEHOE: My objection to the admission is the accuracy of the
23 document if we can just MFI
24 the accuracy, I appreciate that.
25 JUDGE ORIE: Mr. Margetts, any problem in that?
1 MR. MARGETTS: Mr. President, we have no problem with that. Just
2 one matter that I may raise at this stage, and that is that these autopsy
3 reports have already been admitted into evidence by the decision of the
4 Trial Chamber of the 28th of November, 2008. So, Mr. President, you are
5 completely correct in characterizing this as the witness's testimony as
6 to the accuracy of those numbers and --
7 JUDGE ORIE: Yes, but I think --
8 MR. MARGETTS: [Overlapping speakers] ...
9 JUDGE ORIE: -- it might be a good idea to give at least some
10 time since the document has been disclosed very, very recently. If there
11 are any objections against which would affect the probative value such as
12 numbers not to be found anywhere that at least an opportunity is given to
13 the Defence to verify that.
14 MR. MARGETTS: Yes, Mr. President. We have no objection to that.
15 JUDGE ORIE: Mr. Registrar, this document marked for
16 identification would receive number.
17 THE REGISTRAR: Yes, Your Honour, this document shall be given
18 exhibit number P1252, marked for identification. Thank you, Your
20 JUDGE ORIE: And it keeps that status for the time being.
21 MR. MARGETTS:
22 Q. Now, Dr. Clark, in your expert report you refer to a team of
23 people that you were working with or you were leading as chief
24 pathologist in the mortuary examining the bodies exhumed from the Knin
25 cemetery. And you mentioned that that team consisted of about 20 people.
1 That's at page 3 of your report. And then at page 25 of your report, the
2 last page, you list the names of pathologists who prepared autopsy
4 Could you just outline to the Trial Chamber who the members of
5 the team were and their functions. And in a moment after you have done
6 that, in general terms we will then refer to one of the autopsy reports,
7 and we'll go through the report with the Trial Chamber.
8 A. Yes. Clearly an exercise of this sort requires a lot of
9 different specialisms to be involved. Bear in mind this is just simply
10 in the mortuary. This is nothing to do with the grave site. So at any
11 one time we would have three pathologists working, and they would be
12 working with anthropologists. There would be a photographer taking
13 evidence, photographs. There would be scenes of crime officers recording
14 documents and clothing, et cetera. Then there would be other people.
15 Radiographer, various mortuary technicians which were assisting with the
16 bodies. People washing the clothes, and there would be secretaries
17 typing the reports.
18 So it was quite a sizeable team but worked together, and there
19 were good systems in place.
20 The pathologists themselves, I had the job of recruiting these,
21 and over the whole season which wasn't just in -- in Croatia. I tried as
22 much as I could to recruit pathologists from as many different countries
23 as I could. So you'll see in the list on the last page that we have two
24 pathologists from South Africa, both with considerable experience of
25 gunshot injuries, and then we have the others are from Europe, from
2 They were not all present at the same time but three -- there
3 would be three, including myself, present at any one time.
4 Q. Thank you, Dr. Clark.
5 MR. MARGETTS: Mr. President, I'd now like to present for
6 illustrative purposes one of the autopsy reports to Dr. Clark. It is it
7 not presented for any specific reason other than it's a typical autopsy
8 report and evidence sheet and then just go through the documents in these
9 autopsy reports with him to indicate at what stage of the examination
10 these documents were produced and who produced them. It will be a lot
11 easier for us to do that with a document in hard copy. It would be
12 easier for Dr. Clark to identify the pages as I think for the parties to
14 I have the 65 ter, and it can be produced on the screen as well.
15 But if the court usher could assist me --
16 JUDGE ORIE: Any objection against the use of hard copy?
17 MR. KEHOE: No, Mr. President.
18 JUDGE ORIE: Please proceed.
19 MR. MARGETTS: And, Mr. President, this is 65 ter 6189, is the
20 autopsy report, and the evidence sheet, which is the second document, is
21 65 ter 6190. So if we bring up 65 ter 6189 at the moment.
22 Q. Now this is the autopsy report for a case identified as
23 KN01/223 B, and the reference to this case appears in Annex A to
24 Dr. Clark's report which is page 12 of his report, and it is the fifth
25 case down in Annex A, and there's a cause of death which is described as
1 gunshot injury, face.
2 Dr. Clark, I'd like you to look at this report, and if you could,
3 to describe to the Trial Chamber the process once the remains were
4 brought to the mortuary, the activities that the team engaged in, the
5 documentation they had in their possessions and which members of the team
6 were responsible for which part of the examination and for filling out
7 which -- filling out which pages of this documentation.
8 A. Okay. I think the easiest thing to do is to ignore the first
9 three typed pages and go straight on to the fourth page which is 825
10 which is the first one with writing on it.
11 The document from here on was the working document for each of
12 the pathologists. What would happen would be that a body would be
13 removed from the fridge and logged on various tables in the mortuary.
14 The very initial examination would be that it would be fluoroscoped, that
15 is a sort of form of X-ray done in the presence of the pathologist, and
16 that was simply a screening exercise to look for any metal fragments,
17 particularly bullets.
18 The findings of that were recorded on page -- sorry, I should
19 know this by heart. Is recorded on 828. Top half of the page which says
20 injuries, fluoroscopy findings.
21 So in this case the initial examination revealed no bullet
22 fragments or no significant bullet fragments in the remains. So that was
23 written on the page there.
24 The next page is going back to 825, and this is an initial very
25 general description of the remains. Just on opening the body-bag what
1 did we see. So we would describe as it skeletonised remains or an intact
2 body or soft tissues. It was a very general observation. And we would
3 also at this stage record the metal identification tag which was present
4 in the majority of bodies.
5 Having done that, the -- and any photographs taken as necessary,
6 the body is then -- the clothing is removed, any clothing on the body and
7 other items is removed but not recorded by the pathologist at this stage.
8 I'll come back to that. This is on page 826.
9 What we do record, however, was if there was any blind fold or
10 ligature on the body and anything other relevant with the remains. In
11 this particular case, there was nothing.
12 Next page is 827. This is a tick sheet to indicate as much as we
13 can, bearing in mind these are largely skeletonized remains, what we can
14 tell. Build, whether it was male or female, build, hair colour, anything
15 else. In most of these cases, it was impossible to tell any of these
17 Then the main work is described on 828. This is the body -- the
18 bones have been washed and the body is cleaned and laid out and with the
19 assistance of the anthropologist, the pathologist and anthropologist
20 would work together to look at the bones, reconstruct where necessary,
21 and to identify particular injuries. And once we had done this, the
22 pathologist recorded that on page 828, the bottom half. So this was
23 under head and neck. This lady clearly had a gunshot injury to her face
24 and neck, and I have described it. It is in scribbly writing, but this
25 is done in a mortuary and will be tidied up at a later stage.
1 Q. And, Dr. Clark, could you just indicate to the Court the distinct
2 roles played by the anthropologist and the forensic pathologist.
3 A. The anthropologist in an exercise like this has an invaluable
4 role because their expertise is looking at bones. So they do two things.
5 First of all, they examine the bones, put any broken bones together to --
6 particularly those that have been injured to see if there was any
7 particular pattern of injury to them.
8 JUDGE ORIE: Mr. Clark, may I interrupt you for a second. You
9 just referred to this lady where you earlier drew our attention to the --
10 to the pages where we find the tick boxes, where the person is described
11 as a male. So I was a bit confused by --
12 THE WITNESS: Oh, I'm sorry about that.
13 This is a good example -- yes, it is a man, I'm sorry. For some
14 reason I think we had chosen an earlier case which was a woman, and this
15 is indeed a man. I apologise for that.
16 JUDGE ORIE: Yes, may I invite you to very much focus on the case
17 before you when answering questions.
18 THE WITNESS: Thank you very much.
19 JUDGE ORIE: Please proceed.
20 THE WITNESS: This man clearly had an injury to his face and
21 neck, a gunshot injury, and we were able to describe it in some detail,
22 and describe the direction of the injury.
23 This appeared to us very much an injury which had occurred in
24 life, and we can argue about the reason for that in due course if need
25 be, but that is hence the tick of antemortem.
1 Moving on to the next page, which is 829, we obviously look at
2 the whole body. And you'll see that this page is blank because there
3 were no injuries in the trunk. That is the chest and abdomen. No broken
4 ribs, no nothing. So that is left blank as are the two sections on the
5 next page, which is 830, under arms and legs.
6 So this man, his only injury was -- was to the head and neck.
7 In this particular case, his body was -- was well preserved, and
8 we were able to look at the internal organs. This was very unusual, but
9 from time to time it was present. And we were able to tell at the very
10 least that this man had gallstones. That is totally irrelevant in the
11 cause of death, but it was there.
12 The next page, 831, is where we record any bullets or shrapnel
13 which we have removed from the body. In this case, there was none. That
14 does not go against a gunshot injury, I hasten to add. But there was no
15 bullet fragments left in the body. There are other tick sheets there.
16 The anthropology, there was no samples taken for that. The -- on every
17 case we took a sample for DNA
18 and that was typically the femur and the tooth. And these were samples
19 which were generally taken by the mortuary technicians under our
20 guidance. There were no other items were retained.
21 And so with that, that's the end of the pathologist's
22 examination. At the same time there are two -- well, actually three,
23 detachable sheets at the back of the report. This is 835, 836, and 837.
24 I'll come back to 832 later on.
25 These are sheets for the anthropologists, and we would -- the
1 pathologist would give these pages to the anthropologist and ask that
2 they complete them with such information as sex, estimated age range,
3 estimated stature because this was again part of their remitt and
4 specialism. They also did -- this is 836. They also did a complete
5 inventory of the bones present. And 837 is an examination of the teeth
6 when they were present.
7 These three pages, that's 835 to 837, once completed by the
8 anthropologist, would be given back to the pathologist, and armed with
9 that, and also armed with the body recovery report, which is 838, this is
10 a report prepared at the field, at the grave site, which was made
11 available to us, so with that, with the anthropology findings and with
12 other own findings we then completed page 832, which is the summary and
13 conclusions. Again you will see it is sort of scored out and what have
14 you, but this was done usually within the next few days in the peace and
15 quiet of an evening or weekend by the pathologist who would bring
16 together all the findings and write it down in this -- in this fashion
17 and would also give a formal cause of death at the end and then sign it.
18 Q. Dr. Clark, there is one other matter that I'd like to refer to
19 you to, and that is the evidence sheet. That is not part of this
20 document but is part of the second document. And if you could describe
21 at what juncture this evidence sheet is compiled and the relevance that
22 has to the pathologist's ultimate report.
23 A. The only relevance -- and these were sheets prepared by the
24 scenes of crime officers. The only relevance is in the last page which
25 is a colour photograph of the clothing. And I forgot to add that before
1 our conclusions, we went back to the clothing which was now washed and
2 laid out in the way that you can see in the last page of the -- of the
3 document, which is 6547. The pathologist would look at this clothing not
4 for any identification purposes, that was done by the scenes of crime
5 officers, but to look for any damage to it, like gunshot holes any
6 burning or any other finding, and that would be inserted in page -- the
7 second page of our report, which is 826.
8 Q. And, Dr. Clark, if could you move to the first three pages of the
9 autopsy report. That's 822 through to 824.
10 A. Yes. Once we had completed the conclusions on 832, then the
11 whole report -- all the pages were given to the secretaries, and they
12 typed up in the standard format all the findings which was able to be
13 brought down to a three-page document, which you have here. In this
14 document, the conclusions and cause of death are given on the first page,
15 and the other findings are listed in the other two pages. But if you
16 compare the two the typed report and the handwritten report, you will
17 find them -- exactly the same information in them.
18 Q. Dr. Clark, there is one final page that we haven't dealt with,
19 and that's the last page of the autopsy report, and that is the body
20 recovery report at 838.
21 A. I did mention that.
22 Q. Yes. If you could just go through that with me -- with us, with
23 the Trial Chamber again, just to indicate who prepared the body recovery
24 report and where was that prepared.
25 A. These were sheets, single sheets, prepared by the team exhuming
1 the body at the grave site. They made this sheet available to us in the
2 mortuary so that we were able to look at it when we were doing both
3 examination and the conclusions.
4 Q. Thank you, Dr. Clark.
5 MR. MARGETTS: Mr. President, unless there are any questions or
6 further clarifications that, Mr. President, you or Your Honours would
7 seek from the witness, then I'm going move on to some exemplar
8 illustrative photographs of some of the remains.
9 JUDGE ORIE: I would have one question for you.
10 On what basis would it be established that teeth would be
11 fractured post-mortem or antemortem by ...
12 THE WITNESS: That would be the appearance of them. It is not
13 always easy to distinguish the two, what is caused before and after
14 death. If it was a fracture of the tooth caused long after death, then
15 it is fairly obvious because the surfaces are a white surface. In this
16 case, it was decided that the injuries to the teeth -- we don't actually
17 identify injury to the teeth as such.
18 JUDGE ORIE: Well, 24 odontogram fractured -- fractured
19 post-mortem, 38 fractured post-mortem.
20 THE WITNESS: I'm not sure I follow that, Your Honour.
21 JUDGE ORIE: Page 837.
22 THE WITNESS: Oh, 837.
23 JUDGE ORIE: I see odontogram, and I see on the top right-hand
24 list of 8 --
25 THE WITNESS: Yes, I see them now.
1 JUDGE ORIE: -- I see 24 fractured post-mortem. I see 38 further
2 below, I see fractured post-mortem as well.
3 THE WITNESS: This sheet was filled out by an odontologist or at
4 least an anthropologist specializing in dental work, so this is his or
5 her document.
6 JUDGE ORIE: Yes, I do understand. Of course, the reason for my
7 question is that if a body apparently received important injuries
8 antemortem, and if it was then buried, of course I'm wondering what
9 caused teeth that are relatively strong, isn't it, to be fractured after
10 that moment, and if it was on the same day of the burial, what would
11 explain the distinction between half an hour before or half an hour
12 after. Of course, I'm also asking myself when there are such injuries to
13 the face, whether it's not more logical to expect that when these
14 injuries were inflicted, whether it would not have the teeth have
15 suffered from it as well, where apparently are the teeth on one side, if
16 I --
17 THE WITNESS: Yes. I'm afraid I can't answer to this. Did I not
18 complete the sheet. So I'm not sure what the anthropologist meant. I
19 fully accept that, yes, it is likely that a gunshot injury to the face
20 would cause damage to the teeth.
21 So I'm not entirely sure what is meant there, I'm afraid. Yes.
22 Thank you.
23 MR. MARGETTS:
24 Q. Yes. Dr. Clark, are you able to explain to the Trial Chamber how
25 you can determine whether bones are broken post-mortem or antemortem is
1 there any differences in the way that the remains appear?
2 A. It can be very difficult. A bone which is broken long after the
3 death as in when the body is being exhumed or even within the mortuary,
4 that would have a distinctive appearances. The edges would be white, and
5 we could easily distinguish that. I accept that it is very difficult to
6 distinguish an injury which is caused just before death and which
7 potentially was the cause of death with an injury which could be caused
8 in the hours or even few days afterwards. I have tried to explain that
9 in the -- in the report, and the difficulties we have for it.
10 MR. MARGETTS: Mr. President, since we're focussed on this case,
11 I do have two photographs relevant to this case. I hadn't informed the
12 Defence that I had intended to present these photographs because, in
13 fact, I hadn't intended to present them, but it may be, in light of the
14 Chamber's questions, may be useful to see the skull and to see the
15 contemporaneous photograph. They have, of course, been disclosed to the
16 Defence for quite some time.
17 MR. KEHOE: Your Honour, I -- I hate to take issue with my
18 learned friend. But I did receive later on last night a series of
19 photographs, and I have attempted to ascertain whether, in fact, I -- the
20 Gotovina Defence had received these photographs, and frankly the
21 production on photographs was quite spotty, so given what we were
22 attempting to do in preparing for this, I don't know if we have these
23 photographs, if we have not, given the fact that I received this
24 disclosure late last night.
25 JUDGE ORIE: Mr. Margetts.
1 MR. MARGETTS: The photographs that were sent over yesterday
2 evening are a difficult category of material as to these two photographs.
3 These two are additional photographs that are not in that package that we
4 disclosed yesterday. It is only for illustrative purposes. I wouldn't
5 be seeking to admit them.
6 MR. KEHOE: I don't recall receiving any such photographs in
7 addition to the photographs I received last night. And I checked my
8 e-mail just before I came to court today, and I did not see any. If we
9 want to take an earlier --
10 JUDGE ORIE: Mr. Margetts, was this disclosed a long time ago?
11 MR. MARGETTS: Yes.
12 JUDGE ORIE: They were part of earlier -- in relation to this
14 MR. MARGETTS: Yes.
15 MR. KEHOE: If I may, Judge, if that is the case, I can tell
16 Your Honour that what has been disclosed to us going through this
17 exercise concerning these autopsies and photographs over the past six
18 weeks has been spotty at best. I mean there have been large gaps with
19 confusing numbers and numbers that don't match. I can't tell you the
20 number of man hours that the Gotovina Defence team has put in trying to
21 straighten this out.
22 Now, I am not taking issue with my learned friend's comment that
23 he disclosed this. It could very well have been disclosed. I can tell
24 the Chamber that I didn't receive any notice that the photographs were
25 going to be used during the course of the examination.
1 JUDGE ORIE: Let's try to keep matters short.
2 There are I would say two possibilities. The one being that the
3 photographs that we expect to be shown by Mr. Margetts show clear
4 differences by what we have seen on paper. Then it might give an
5 additional opportunity to the Defence to challenge whatever is in the
6 paper or on the photographs, or it is more or less the same, then it's an
7 illustration, not more or less. Would it be worthwhile to do such an
8 exercise, of course, giving an opportunity to looking more closely at the
9 photographs, once so, perhaps mark them for identification for the time
10 being and then see whether you detect anything that could assist the
12 MR. KEHOE: Your Honour, I -- I appreciate that, that guidance.
13 The exercise is simply having an opportunity to take a look at it before
14 we engage in -- [Overlapping speakers] ...
15 JUDGE ORIE: [Overlapping speakers] ... it goes without saying,
16 Mr. Kehoe, that Mr. Margetts should have -- should have -- indicates to
17 you that he wants to use these photographs and at least refer to numbers,
18 if they had been disclosed already, and if not yet been disclosed to --
19 to give you copies of it. Well, let's not start telling whether the year
20 started good or badly, but if there are any objections from other Defence
21 counsel in relation to this.
22 Then let's have a look at the photographs which will be marked
23 for identification, Mr. Margetts.
24 MR. MARGETTS: Mr. President, if we could please have 65 ter 6793
25 presented on the screen.
1 Q. Now, Dr. Clark, this is a photograph of the remains or at least
2 the skull and other bones of the body marked KN01/223 B. And can you
3 indicate to the Trial Chamber by reference to your conclusions the extent
4 to which you relied on your examination of this skull in reaching the
5 conclusions that you reached.
6 A. Well, this -- to me at least anyway, this shows a very clear
7 injury typical of a gunshot injury with the entrance probably on the left
8 side of the lower jaw immediately above the letter N, the gap there. The
9 -- there is fracturing -- destruction and surrounding fracturing of the
10 lower jaw round about, and the bullet has then travelled backwards and
11 has damaged the bones of the neck, the spine which are the bones laid out
12 at the side, the right side. You can see that they are fractured. So
13 this looked to me like a gunshot injury which had gone through the lower
14 jaw to the left of the midline, back through the lower part of the face,
15 and had come out at the neck.
16 Q. Thank you, Dr. Clark.
17 MR. MARGETTS: Mr. President, if we could have an exhibit number,
18 please, for the autopsy report, which is 65 ter 6189, which is for
19 KN01/223 B and also -- and just for that document. Now this document has
20 already been admitted into evidence already. We just need an exhibit
21 number for it. It was admitted pursuant to the decision of 28 November,
23 JUDGE ORIE: Just for the photograph?
24 MR. DU-TOIT: [Overlapping speakers] ...
25 JUDGE ORIE: You say if we could have sn exhibit number for the
1 autopsy report and also just for this document. Now this document has
2 been ...
3 The autopsy report was admitted into evidence.
4 MR. MARGETTS: Correct.
5 JUDGE ORIE: So we don't need a number for that.
6 MR. MARGETTS: We don't have a number for it, though. It was
7 admitted pursuant to the written decision actually of 25 November, and
8 the materials have been uploaded steadily since that date for submission
9 to the registry and assignment of numbers.
10 JUDGE ORIE: Yes, then this autopsy report, Mr. Registrar, would
11 receive what number?
12 THE REGISTRAR: Your Honours, the autopsy report shall be given
13 exhibit number P1253. Thank you, Your Honours.
14 JUDGE ORIE: Any objections against admission of this autopsy
16 MR. MARGETTS: The --
17 JUDGE ORIE: No objections. P1253 is admitted into evidence.
18 MR. MARGETTS: The next document is 65 ter 6190, if we could have
19 an exhibit number for this please, and if it could be admitted into
21 JUDGE ORIE: I'm always confused if we're talking about numbers.
22 MR. MARGETTS: This is the evidence sheet, Mr. President. That
23 accompanied the autopsy report.
24 JUDGE ORIE: Yes. That's -- would receive number ...
25 THE REGISTRAR: Your Honours, the document shall be given exhibit
1 number P1254.
2 Thank you, Your Honours.
3 JUDGE ORIE: No objections. Then P1254 is admitted into
5 The photograph, which will be marked for identification for the
6 time being.
7 MR. MARGETTS: Yes. That's 65 ter 6793.
8 JUDGE ORIE: And that, Mr. Registrar, would receive?
9 THE REGISTRAR: Your Honours, this document shall be given
10 exhibit number P1255.
11 JUDGE ORIE: P1255 is marked for identification in order to give
12 an opportunity to the Defence to further verify.
13 Could I just ask one question about the photograph just shown
14 which is still on our screen. Do we see the four -- are these three or
15 four vertebrae on the right-hand side?
16 THE WITNESS: No, there are four.
17 JUDGE ORIE: The two are the two on top. That's -- it looks like
18 one, but these are two actually.
19 THE WITNESS: Yes. The top two are sitting on top of each other.
20 And then C-1, C-2, and then C-3, C-4.
21 JUDGE ORIE: Yes, thank you.
22 Please proceed.
23 MR. MARGETTS: Mr. President, I note the time. I just have one
24 final section to deal with Dr. Clark which is the presentation of some
25 photographs which are illustrative of the various findings.
1 JUDGE ORIE: How much time would that need?
2 MR. MARGETTS: Between 10 to 15 minutes.
3 JUDGE ORIE: Then I suggest that we first have the break. If it
4 would have been a couple of minutes, I would suggest that we continue our
5 first session.
6 We will have a break, and we will resume at ten minutes past
8 --- Recess taken at 3.44 p.m.
9 --- On resuming at 4.13 p.m.
10 JUDGE ORIE: Mr. Margetts, please proceed.
11 MR. MARGETTS: Thank you, Mr. President.
12 Mr. President, I'd now like to present to the witness a series of
13 photographs. These photographs, all have been disclosed to the Defence
14 for quite some time, and 14 of the 27 photographs have already been
15 admitted into evidence pursuant to the bar table submission and decision
16 of the Trial Chamber of 25 November. None of them have been given
17 exhibit numbers. It's presented as a package, and my intent is to get --
18 to ask for one exhibit number for the package of 27 photographs, and
19 effectively that will deal with 14 of the photographs that are the
20 subject of the 25 November 2008
21 the documents once they're all uploaded to e-court. This is a submission
22 which is intended to be illustrative of various materials that were
23 available to Dr. Clark and various different observations that he made of
24 the remains.
25 So, Mr. President, if I could please have 65 ter 6778 brought up
1 on the screen.
2 MR. KEHOE: If I may, Judge, these are the photographs that I
3 received last night that they were going to be used with -- endeavored to
4 try to find if they had been, in fact, been disclosed. I can say that I
5 was not totally successful in that regard. I don't question what my
6 learned friend says with regard to the admission of some these items. I
7 would like some guidance from him because it wasn't forthcoming in what
8 had been produced to us, what had been admitted, and what had not
9 pursuant to the submission to the Chamber.
10 MR. MARGETTS: Yes, Mr. President.
11 The reason that this package is put together and provided last
12 night is obviously that we met with Dr. Clark yesterday and we determined
13 what would be a helpful set of illustrative photographs to explain --
14 just to provide exemplars of what is referred to the various autopsy
15 reports and referred to in the expert report.
16 I can go through each of the photographs in turn and indicate to
17 my learned friend which ones have already been admitted, if -- if he
18 would like me to do that now, or alternatively we can alternatively do
19 that at the next break.
20 MR. KEHOE: I'm guided by what the Chamber would like me to do.
21 JUDGE ORIE: Yes.
22 MR. KEHOE: I would think that for the sake of identifying these
23 photographs other than from a KN number in this package, that might be
25 MR. MARGETTS: Well, Mr. President, we sent two documents over to
1 the Defence last night. One of them was the set of photographs with the
2 KN documents, and the second document was exactly the same document where
3 the ERN numbers referenced so that we would not have this difficulty in
4 course and that the Defence can do that reconciliation. I can give them
5 the same document again. I can send that e-mail again, if that would
6 help them.
7 MR. KEHOE: And pursuant to that exercise with the ERN numbers, I
8 was unable to find that some of these had been disclosed that. That was
9 my problem. I'm not trying to --
10 JUDGE ORIE: Yes.
11 MR. KEHOE: [Overlapping speakers] ... I just wanted to --
12 JUDGE ORIE: So the situation is Mr. Margetts says they were
13 disclosed and just send a list and from two different angles in order to
14 give you an opportunity to verify. You said, I was not able to verify.
15 Of course, I have got no idea whether it is because they were not
16 disclosed, whether you couldn't find it. I suggest that we proceed on
17 the same basis as with the two photographs which certainly were not
18 brought to your attention, although I think we saw only one of them,
19 isn't it?
20 MR. MARGETTS: Yes. You did see only one of them. There was a
21 second one I decided not to call.
22 JUDGE ORIE: You decided -- but I suggest that we proceed on the
23 same basis, and if there's any problem as far as lack of disclosure is
24 concerned, if there's any other problem in relation to that, we'll
25 resolve that, and they will be marked for identification for the time
2 MR. KEHOE: Yes, Your Honour.
3 JUDGE ORIE: Any further submissions by the Defence teams. If
4 not, then, Mr. Margetts, please proceed on that basis.
5 MR. MARGETTS: Mr. President, if you would allow me a just one
6 moment of explanation. Obviously when we're talking about Prosecution
7 files or we're talking about reporting records or we're talking about
8 exhumation reports and other documentation relative to -- to killings and
9 deaths, we're talking about hundreds if not thousands of documents. And
10 it's been a feature of this case that we have cooperated well with the
11 Defence in terms of assisting each other, in handling these materials,
12 and I actually am not of the view that that my learned friend's comments
13 today have accurately reflected a lot of the correspondence that's gone
14 between the Prosecution and Defence on this matter. A lot of the
15 correspondence has been the Defence indicating they had materials and --
16 JUDGE ORIE: I didn't notice anything of an unfriendly nature at
17 this moment, so I take it that the good spirit will continue also on from
18 this 12th of January.
19 Please proceed.
20 MR. MARGETTS: Thank you, Mr. President.
21 Mr. President, if we could please have 65 ter 6778 presented to
22 -- on the screen.
23 Q. Dr. Clark, you'll see before you two photographs, and that is on
24 page marked X023-0559. And under the heading pre-burial.
25 Could you indicate to the Court -- firstly, could you look at the
1 top photograph, and could you indicate to the Court whether that
2 photograph was available to you at the time that you were preparing your
4 A. Can I -- firstly, an apology that the problems with the
5 photographs may be partly mine, in that normally I would have inserted
6 photographs into the autopsy report -- the pathologist report, but the
7 time scale was such that I could not do that, and these were also
8 impossible because of the size to e-mail earlier so that --
9 JUDGE ORIE: Mr. Clark, there is no reason to make apologies in
10 this respect, so the Chamber does understand and does appreciate that
11 would you have liked to make our life even more comfortable, but don't
12 start apologising, there's no need for that.
13 Please proceed.
14 THE WITNESS: Okay.
15 A. Yes, available to me in compiling my report, final report, were
16 two types of photographs. One was a set of photographs which had been
17 made available to us at the time of the autopsies. We weren't entirely
18 sure where they came from. And I said in my report that they were
19 interesting and informative, but I based very little on them.
20 The second set of photographs are, of course, the autopsy
21 photographs that we took in the mortuary which I can very much verify.
22 MR. MARGETTS:
23 Q. Dr. Clark, if I can just stop you there. If we refer to page 3
24 of your report and to the comments that you make. Actually, referring to
25 page 2, and it's the top of page 2. You say that there were photographs
1 that were taken in the past showing bodies prior to burial, some lying in
2 the open and others laid out in the already excavated grave.
3 MR. MARGETTS: Now, Mr. Registrar, if you could just pan out,
4 please, on the photographs that are displayed on this pages.
5 Q. These exemplars of a photograph of somebody lying in the open and
6 a body in an already excavated grave.
7 A. Yes.
8 MR. MARGETTS: Mr. Registrar, if we could please move on to the
9 second page, that's the last four digits 0560.
10 Q. And, Dr. Clark, if you can just briefly identify the top two
11 photographs and what they indicate.
12 A. Yes. These are photographs from, the autopsy photographs, from
13 the person in the lower photograph. And so they are -- I mean, I can
14 explain the injuries if you want, but they are just to show the linkage
15 between the two. We have pre-burial photographs, and we have autopsy
17 Q. And, Dr. Clark, if could you just explain what you derived from
18 studying this skull.
19 A. Very briefly, top left photograph there is an arrow just to the
20 left of the midline of the centre of the photograph. Just below that,
21 there's a semi-circle going into a larger defect, that's a gunshot
22 entrance hole, so that's into the back of the head.
23 The next photograph on top right is looking at the front of the
24 skull, the front of the face, and you will see that the entire face is
25 missing, and this is the exit of this shot. So it's a shot just to the
1 back of the head, just to the left of the midline coming out and blowing
2 out of the face.
3 Q. Thank you, Dr. Clark. If we could now move on to the next page
4 which is the last four digits 0561. And Dr. Clark, if you could deal
5 first with the picture on the left, then move to the picture on the right
6 at the top, and then the picture at the bottom.
7 A. These relate to a paragraph in the pathologist report.
8 Effectively the top -- top of page 5 in which I discuss the difficulty in
9 the interpretation of injuries and how we decide whether a particular
10 body damage is a gunshot injury or could be something else, and there are
11 various levels of certainty. The photograph on the top left I thinks is
12 an absolute classic gunshot entrance hole in the top of the skull and
13 fractures reading at about -- round about. There is no doubt at all what
14 has caused that. Slightly less certain, photograph on the top right,
15 this the top of your shin bone, the tibia, and it has been put together
16 because it was in fragments, being glued together. And you can see just
17 below the arrow a dark defect which is probably again the entrance hole
18 but a little bit less well defined than the one in the skull.
19 And finally the photograph on the bottom, this is of somebody's
20 femur, thigh bone, here there is no -- we didn't find a nice -- a classic
21 round hole in the bone. But what it does show is the typical
22 fragmentation pattern of a bone when hit by a bullet of high velocity.
23 There is one at the top end which is the left end there. You can see
24 damage there, but even more visually found is at the lower end of the
25 femur to the right of the photograph where the bone is shattered. And
1 these, to us, were the evidence we were looking for to show these were
2 gunshot injuries.
3 MR. MARGETTS: And, Mr. Registrar, if we could move on to the
4 next page, 0562.
5 Q. And again, Dr. Clark, if you could deal with the top photograph
6 and then the bottom photograph.
7 A. I have referred to injuries typical of high-velocity weapons
8 which is more correctly called high energy transfer weapons, but high
9 velocity is easier. This is a sort of typical pattern. Legs of a man
10 who had been shot at least 14 times. And in the legs there are at least
11 five, probably five separate gunshot injuries.
12 And the bottom picture shows some of the -- well, shows the
13 bullets or fragments of bullets which were recovered from his body, and
14 these are typical of 6.60 millimetre diameter typical of high-velocity
15 ammunition, so these two cases are linked.
16 Q. Dr. Clark, are you able to say what type of weapon would have
17 fired this high-velocity ammunition?
18 A. Well, we were informed the likely weapon was an AK-47 assault
19 rifle. The bullet size certainly would fit with that, and we have no
20 reason to doubt that.
21 MR. MARGETTS: And, Mr. Registrar, if we could move on to the
22 next page marked 0563.
23 Q. And again, Dr. Clark, if you could deal with the top photograph
25 A. This is just to emphasis the huge destructive nature of
1 high-velocity ammunition when it hits the body, particularly when it hits
2 bone and particularly when it hits the skull. These two photographs are
3 the same person. The upper photograph shows obviously the mortuary
4 photograph, and you're looking at the right side of the skull which, even
5 though it has been glued together, shows a huge defect towards the front
6 which is the right side. That is the exit gunshot injury.
7 If you look in the pre-burial photograph, and I have inserted a
8 black arrow, down bottom left. You can you see that, to me, is brain
9 tissue which is coming out of the side of the skull. Obviously a very
10 damaged skull and corresponds with the upper photograph.
11 Q. Thank you, Dr. Clark. If we could move on to the next page which
12 is marked 05643. And if you could take these photos in the order that
13 you think is most sensible and just indicate, if you could, the location
14 on the page of the photograph that you're referring to.
15 A. Very briefly, these are just other examples of the type of damage
16 that we found in the bones which led to us believe that gunshot injuries
17 were the cause of death in that particular person. The top photo, top
18 left is of the lower jaw, and the middle photograph on the left is the
19 same person. That's the right collar-bone, and this was probably one
20 shot going through the jaw, through the jaw on the left-hand side an
21 ending up in the chest through the collar-bone. The bottom left corner
22 photograph shows somebody's left arm and shows a shot is he shoulder
23 which the right end and a shot at the elbow which is about the middle.
24 Top right photograph is a shoulder-blade scapula most of which is
25 missing, the lower half. Again, typical gunshot injury. And finally
1 bottom right is the left femur. There's a right intact femur for
2 comparison to the thigh bone. And the left femur shows obvious gunshot
3 injury at the lower end.
4 MR. MARGETTS: Mr. Registrar, if we could move on to the next
5 page which is 0565. And again, Dr. Clark, if you could indicate the
6 position of the photos on this page as you're discussing them.
7 A. One of the other things that we tried to determine in addition to
8 establishing that these were gunshot injuries was to see if we could tell
9 the direction of fire whether front of body, or from the back, or
10 whatever. And the way that this can be done, in some bones at least, is
11 to look at the detail of the damage to the bone. When a bone -- a bullet
12 hits bone, the first edge that it hits just leaves a sort of circle or
13 semi-circle. But on the inside of that bone, the other surface, you get
14 a bevelling effect like a crater going away from it, and that is easiest
15 to see on skulls, but this is a particularly good examples on the ribs.
16 The top pictures shows two ribs which were -- obviously a bullet
17 has gone between the ribs and has caused a semi-circle hole, the bottom
18 of the upper one and the upper part of the low one with some fracturing
19 that -- if you imagine the bullet going into the screen, into the page.
20 Down below there are two pictures of the same case. It's a bit
21 dark, but the one on the left is the bullet going in the same direction.
22 In other words, into the screen, but on the other surface of that bone, I
23 think can you see the sort of cratering, bevelling effect which indicates
24 that the bullet is coming out towards me.
25 Q. And that is the inner surface photo on the right?
1 A. Yes.
2 Q. You're making those final comments.
3 MR. MARGETTS: If we could now move, Mr. Registrar, please, to
4 the next page which is 0566. And again, Dr. Clark, if you could discuss
5 these two photos.
6 A. Again, this is it just an example of trying to determine
7 direction. The upper photograph is somebody's lower jaw, mandible, taken
8 from behind which is a view few people can envisage. And this is a
9 bullet which has gone through the back of the neck and come out through
10 the lower jaw. And the arrow in the upper photograph is showing the
11 bullet exiting, going into the screen.
12 The lower photograph is just another example to show the track of
13 that bullet. It's the same case. The bone stacked on the right-hand
14 side of the spine, the neck bones. And we're able to tell that this is a
15 single shot to the back of the neck coming out through the mouth, the
16 lower jaw in the midline.
17 Q. Thank you, Dr. Clark.
18 And, Mr. Registrar, if we could please move tonight next page,
19 which is it 0567.
20 A. Another one just showing tracks of bullets. It's also emphasises
21 the care that was taken with these reconstruction of the skills and the
22 expertise of the anthropologists in doing this. Because initially these
23 skulls are in fragments, but they have been glued together such that we
24 can identify tracks. There is one tack going through the top of the
25 head, that's the purple rod, and coming out the right side of the face.
1 And the second shot, the red rod, is going through the left side of the
2 jaw, that's the person's left, and coming out destroying the right side.
3 So just an example of determining directions.
4 Q. Thank you, Dr. Clark.
5 If we could move to the next page which is 0568.
6 A. The -- by far the greatest number of gunshot injuries that we saw
7 were what I call high-velocity gunshot injuries. And I've shown you
8 typical examples of that. Every so often we found bullet-holes in the
9 bone which did not have this fragmentation pattern and suggested to us
10 either the use of a handgun which is much lower velocity, or the other
11 possibility would be that this is a high-velocity bullet which had passed
12 through someone else or something else first and lost a lot of energy
13 before it goes in. I suspect the former is more likely.
14 The upper photograph, the white arrow, just follow it. You see a
15 semi-circle in the eye socket. The lower photograph is the back of the
16 head. This is the exit from the back of the head showing a very clean
17 circular hole with minimal disruption and compare that with the damage
18 I've shown you to the other bones.
19 Q. Thank you.
20 MR. MARGETTS: If we could now move on to 0569, which is the next
22 A. In addition to the high-velocity weapons, occasionally we found
23 injuries to the bones which were typical of shrapnel. Of the Annex A
24 cases, it has to be said that there was only one which showed convincing
25 blast or shrapnel damage. There were other cases in other bodies, but
1 this is the only one. And it is just -- it's difficult to describe, but
2 there's an irregular area in the hip bone and a piece of shrapnel metal
3 which is lying to the left of it was found with the body. I don't know
4 whether that occurred before or after death, and the cause of death in
5 this lady was given as unascertained.
6 Q. Thank you, Dr. Clark.
7 And now, Mr. Registrar, if we could please refer to the last page
8 of this presentation, and that is page 0570.
9 And, Dr. Clark, if you could explain these two photographs.
10 A. Occasionally we saw other types of injuries other than gunshot
11 injuries. And two types:
12 One is what we call blunt-force which is when the body is either
13 hit by something solid or the person themselves hits something solid like
14 a fall. In this case, 283, the upper photograph, you can see an area
15 fracturing just above the outer part of the right eye socket, the orbit.
16 It's got an arrow to it. And that was indicative to us of blunt force.
17 It looked to -- this is a typical pattern that we see as general
18 pathologists in our day-to-day work, and I think is very likely a
19 blunt-force injury applied in life.
20 The second photograph is unusual, and it's the only one of its
21 kind. This is on the left side of the head, and there was a slicing
22 through the bone which you can see with the arrow, and that's obviously
23 been caused by some sort of sharp instrument. Now it takes something
24 heavy and sharp to cut into the skull. I have suggested something like a
25 machete or a similar heavy weapon.
1 So these photographs are just to show, to illustrate the general
2 findings in my report.
3 Q. And, Dr. Clark, can you confirm for the Court that you put this
4 presentation together yesterday during the course of your meeting with
5 representatives of the Office of the Prosecutor?
6 A. The basis was already done, and we finished it yesterday, yes.
7 Q. Thank you, Dr. Clark. That concludes my questions.
8 MR. MARGETTS: And, Mr. President, if I could please have an
9 exhibit number for this presentation marked for identification.
10 JUDGE ORIE: Yes. Series of photographs, Mr. Registrar, the
11 number would be ...
12 THE REGISTRAR: Your Honours, this document shall be given
13 exhibit number P1256.
14 Thank you, Your Honours.
15 MR. MARGETTS: Thank you.
16 JUDGE ORIE: Looking at the Defence, we should keep status of
17 marked for identification.
18 Then P1256 is marked for identification, and the Chamber would
19 like to hear from the Defence as soon as possible.
20 MR. MARGETTS: Thank you, Mr. President. Those are my questions.
21 JUDGE ORIE: Thank you, Mr. Margetts.
22 Mr. Clark, I developed a custom that I address everyone Mr.,
23 Mrs., whether you professor, general, or a monsignor. Just for you to
24 explain, it's not any expression of not acknowledging your academic
1 THE WITNESS: Yes, thank you.
2 Mr. Kehoe.
3 Mr. Kehoe is Defence counsel for Mr. Gotovina and will now
4 cross-examine you.
5 THE WITNESS: Thank you.
6 MR. KEHOE: Thank you, Mr. President.
7 Cross-examination by Mr. Kehoe:
8 Q. Thank you, Mr. President. Good afternoon, Doctor.
9 A. Good afternoon.
10 Q. I think we had the pleasure to meet up in the cafeteria some
11 months back.
12 A. We did, yes.
13 Q. But it was quite brief.
14 Doctor, I'm just going to go through a few things in your report
15 and highlight a few others maybe to illuminate your report, so just say
16 anytime we are not understanding each other or you don't understand me,
17 please stop me, and I will attempt to clarify.
18 A. Okay.
19 Q. Doctor, you mentioned in your report the difficulties in making
20 forensic analyses under the conditions such as you confronted in Knin
21 because obviously these bodies had been in the ground for some time, and
22 there was a significant amount of decomposition. Is that right?
23 A. Yes.
24 Q. And I think you also --
25 MR. KEHOE: Mr. President, I will go through this quickly. It's
1 on page 3 of the witness's report.
2 Q. And you also mentioned that normally in the day-to-day affairs of
3 a forensic pathologist, you have some degree of organ structure on a body
4 which allows you to better ascertain angle of fire, possibly the level of
5 damage that was in just the torso area and not the bone. Any number of
6 pieces of information that you are unable to assess when just dealing
7 with skeletal remains?
8 A. Yes.
9 Q. Now in addition to that, I think you mentioned this morning, and
10 that would be at -- excuse me. This afternoon.
11 A. This afternoon, yes.
12 Q. Yes, I'm getting my time a little off here. And I do believe I
13 wrote this down in response to a question by Judge Orie --
14 A. The dental.
15 Q. It was on page 25 of the transcript, line 11 and 12. You were
16 discussing post-mortem and pre-mortem injuries, antemortem and
17 post-mortem injures, and you noted that often times it is almost
18 impossible, and again this is on page 4 of your report, to make an
19 assessment whether an injury was post- or pre-mortem item. Isn't that
21 A. That's right, yes.
22 Q. Because, I mean, I think again in your report -- and we're not
23 going to repeat this. On page 4 you go through any number of injuries
24 that happen to a body during the post-mortem simply by handling or by
25 burying or by transporting, et cetera, right?
1 A. Yes.
2 Q. And I'm interested, though, in your comment on page 4 of your --
3 page 4, subparagraph 2 of your report. And this is last sentence, and
4 you're talking about in the section deciding whether injuries found had
5 occurred before or after death, and you discussed the difficulty in it.
6 You note that in the end when -- this is the last sentence. Are you with
7 me, Doctor?
8 In the end, where there was doubt, the benefit of such doubt was
9 given to the injury being post-mortem in nature."
10 A. Yes.
11 Q. Now, you were trying to that to be careful, is that right, sir,
12 or --
13 A. Yes.
14 Q. Okay. My question is with regard to the actual bodies themselves
15 -- and let's go back to the next two paragraphs down beginning "strictly
16 speaking." It says:
17 "Strictly speaking, therefore, in these decomposed and often
18 incomplete bodies with no soft tissues in which to see bruising and no
19 body cavity in which to find internal bleeding or disrupted organs, it
20 was virtually impossible to be certain that any injury found necessarily
21 occurred in life. And theoretically, all of them could have occurred
22 after death even the very often gunshot injuries."
23 A. Yes.
24 Q. "Well, conscious of this theoretical difficulty, the report is
25 nevertheless compiled on the assumption that the vast majority if not all
1 of the gunshot and other specified injures found in these bodies occurred
2 in life, and that they were or contributed to the cause of death. To
3 assume otherwise would make any future analyses of the findings
5 So just to clarify, Doctor, you made a decision that when you saw
6 post injuries that if you couldn't determine if they were antemortem or
7 post-mortem, you said that they were post-mortem. Yet when you saw these
8 gunshot wounds, you assumed for the sake of your report that all of these
9 gunshot wounds were antemortem. Is that right?
10 A. Yes. The ones that we raised out in -- we took the view that all
11 gunshot wounds were antemortem. If you don't assume that, you have to
12 assume that these are people who have died in some other way of which
13 there is no evidence whatsoever on the bodies. And that not only that,
14 but that the bodies were then shot after death. That is the alternative
15 notion. Which is maybe possible, and that is for others to determine.
16 If I can clarify the -- if the damage to the bones was typical of
17 gunshot injury, and I have shown you plenty examples of that, then it's
18 fairly straightforward. It is the -- when the damage is less convincing
19 of gunshot and could be pressure effect on a bone, a broken rib which is
20 far less typical of a gunshot injury, and we could -- was much more
21 difficult to distinguish that from a post-mortem injury than from say
22 from a blunt-force trauma. And we -- these are the sort of situations we
23 erred on the post-mortem side. It is not so much the gunshot injuries.
24 Q. Let me go back to a scenario. And I'm not saying -- just when we
25 look at this hypothetical that all of these situations fall into this
1 category, but you can't, for instance, dispense with the possibility that
2 somebody died in a hand-to-hand combat situation and that after the body
3 was there, some person - and I'm not justifying the conduct - some person
4 shot into that body after it was dead. And you can't discount that
5 possibility because of the evidence that you were dealing with?
6 A. That's right. I can't discount that.
7 Q. I mean, does that account for your comment in the actual next
8 comment when you were trying to determine the cause of a particular
9 injury in discussing the difficulties:
10 "The vast majority of the injuries found in these bodies were
11 gunshot injuries or at least what were interpreted as such."
12 Now, was that a -- a -- again, an assumption by you when you were
13 looking at these injuries, and for lack of some other way to go, you just
14 assumed that they were gunshot injuries?
15 A. Well, we -- I mean, gunshots do have a fairly typical pattern,
16 and if it did have anything of the three that I have listed, then we
17 attributed them to gunshot injuries. It was the ones in which there
18 really was not very much just a broken bone, no bullet fragments, then we
19 doubted whether that was genuine gunshot or not. And these are the ones
20 that we erred on the other side.
21 Q. Just bear with me for one second, Doctor, but it appears from
22 this sentence that you are possibly erring in the other direction where
23 you say:
24 "The vast majority of the injuries in these bodies were gunshots
25 injuries or at least what were interrupted as such."
1 A. Well --
2 MR. MARGETTS: Mr. President, first of all, that has been asked
3 an answered; and, second of all, it would be helpful if the clarifying
4 sentences were read with that sentence.
5 JUDGE ORIE: Well, let me just ... just something was put to the
6 witness in the last question and no question followed yet.
7 MR. MARGETTS: Yes, Mr. President, and I'd say that that has
8 already been put to him at page 48, lines 18 to 22.
9 JUDGE ORIE: Yes. Mr. Kehoe can put whatever question in
10 relation to what he again put to the witness.
11 Please proceed.
12 MR. KEHOE: Thank you, Mr. President.
13 Q. Doctor, on that particular issue - and I'm just trying to get
14 from assistance from you on this - it would appear that when you saw an
15 injury that could have been or could have not been a gunshot injury, you
16 interpreted as a gunshot injury?
17 A. Yes. The ideal situation is clearly there is skin and soft
18 tissue and the whole body, and if we saw that plus the damage to the
19 bone, then that is a gunshot injury. All we have here is bones, largely,
20 so we are already missing 50 per cent of the evidence. So on the basis
21 of the damage to the bone, I'm interpreting that as a gunshot injury.
22 That's where the level of doubt is.
23 Q. But there is that level of doubt in your mind based on the
24 evidence that you were presented with?
25 A. Yes.
1 Q. In fact, Doctor, in your report on page -- and now if we move to
2 the cause of death in your report at page 5, you note under the
3 circumstances where there is no surrounding tissue and internal organs:
4 "It was therefore seldom possible to strictly prove a precise
5 cause of death, only to imply it."
6 A. Yes.
7 Q. And, in fact, Doctor, in coming up with this precise cause of
8 death, you, in fact, disagree -- and I'm -- take this from your
9 supplemental information sheet. You disagree or qualify the conclusions
10 made by your fellow pathologists who were examining some of these bodies
11 at the mortuary -- at the mortuary in Zagreb, did you not?
12 A. We seldom disagreed. I think I know what you're meaning, but
13 that it is just a few, and that has been done on reviewing of the cases
15 Q. I'm just taking this from your supplemental information sheet,
16 and if we can just take a look at -- on two, if we can bring up 65 ter
17 6184, I'm not certain that that's been received in evidence, but I will
18 just deal with the 65 ter number at this junction. But it has to do with
20 MR. KEHOE: If we could bring that up, please.
21 MR. MARGETTS: Mr. President, just for the witness's information,
22 the reference to the supplemental information sheet I think I indicated
23 to Dr. Clark during the course of proofing that additional information
24 here provided to the Office of the Prosecutor would be put in a written
25 form and provided to the Defence, and I just him to be clear that that's
1 what Mr. Kehoe is referring to when referring to the supplemental
2 information sheet.
3 MR. KEHOE: I appreciate that, Mr. Margetts.
4 Q. We have an autopsy -- we can just deal with the primary sheet.
5 This is by Doctor --
6 A. Maria de Mendonca.
7 Q. I'm not going to attempt to pronounce that. However, it denotes
8 where in the second paragraph on this individual there were multiple
9 comminuted fractures to the left rib, 6; right rib, 3, 4, 6, 7, 8, 9, 10.
10 These findings are neither consistent with nor indicative of being caused
11 by ballistic influence. And ballistic influence of bullets, isn't it?
12 A. Yes.
13 Q. But by blunt trauma of the chest, and the cause of death is blunt
14 trauma to the chest.
15 And I note that in your information that you gave to Office of
16 the Prosecutor during your proofing back in December, you told the
17 Prosecutor that the person may have died of either blunt trauma to the
18 chest or possibly by gunshot to the chest area.
19 Now, my question to you, Doctor, is not to determine who is right
20 and who is wrong, but there is a high degree of subjectivity in this.
21 And the reality is on this particular autopsy, you had some disagreement
22 or doubt with the pathologist who actually examined this body, did you
24 A. The disagreement, if you like, or questioning I think is a better
25 word, only came when I was reviewing all the cases. It was not in the
1 mortuary at the time because I cannot remember that. But well, I had the
2 benefit of going through huge numbers of autopsies. I had the benefit of
3 having had two years previously -- for the past previous two years
4 working this sort of material, and I am -- I just felt that the injuries
5 here were not dissimilar to injuries seen in gunshot -- other gunshot
6 cases. And I just question it. You will also note that I have not
7 changed the cause.
8 Q. You didn't examine this body?
9 A. I didn't examine it, nor I don't think there were there any
10 photographs taken of it, so it was difficult to review.
11 Q. Let's take a look at another one which is 65 ter 6248. I do
12 believe that is admitted already. I'm not certain given the listing of
13 things if these items have been admitted or not. I mean I don't want to
14 certainly do -- multiply these documents, but ...
15 JUDGE ORIE: The problem apparently is that in the 25th of
16 November decision, the OTP is invited to put all those documents that
17 were not yet admitted on a list so that numbers could be assigned to it.
18 Now, Mr. Margetts, did that happen?
19 MR. MARGETTS: Your Honour, that hasn't happened as yet, and
20 so --
21 JUDGE ORIE: And that causes the problem now that we are
22 assigning numbers not knowing whether they are admitted or not because
23 that is what the last part of --
24 MR. MARGETTS: Mr. President, I can inform the Court and the
25 parties that all of the autopsy reports referred to the annexes to
1 Dr. Clark's export report have been admitted but haven't been assigned
2 numbers. So I think that -- it would be our recommendation that the most
3 convenient way to proceed would be for numbers to be assigned as and when
4 they are presented, and obviously that that will alleviate the need to
5 assign numbers to those autopsy reports at a later time.
6 JUDGE ORIE: Yes. So it could have been done already since the
7 25th of November, that's six weeks ago. And you say now we take out the
8 ones we're using at this moment. We assign numbers to them and whatever
9 remains then will be on your list.
10 MR. MARGETTS: Mr. President, we did commence work on this
11 breaking each of -- we had large 65 ter numbers consisting of thousands
12 of pages, and we have been breaking those down into smaller 65 ter
13 numbers and uploading them, not only autopsy reports but identification
14 against Croatian reports and other materials as well so yes, it would
15 been a better situation if we had been able to provide those table in
16 accordance with the order, but I can assure, Mr. President, that we have
17 been working on it, and we're very close to finishing that process.
18 JUDGE ORIE: You mean by this week, isn't it?
19 MR. MARGETTS: Yes, Mr. President. I mean by this week, yes.
20 JUDGE ORIE: Yes, Mr. Margetts, then we expect the list, and then
21 of course as was said in the 25th November decision only documents that
22 were not yet admitted so you keep a good record of what is admitted now
23 so that these documents do not again appear then on your list which we
24 expect by this Friday.
25 MR. MARGETTS: Thank you, Mr. President.
1 JUDGE ORIE: Mr. Kehoe.
2 MR. KEHOE: Yes, Mr. President, I do believe that I said -- I
3 believe I'm not sure. I think it is part of that list, but if I can just
4 operate with the 65 ter numbers until we get to some clarity on whether
5 or not they are in or not. Or I could just put it in.
6 JUDGE ORIE: I don't understand we're talking about. The autopsy
7 report in relation to KNO0, 204 B which bears the police ID number 504
8 when I'm well-informed, which actually speaks of a blunt trauma chest.
9 And, Mr. Margetts, you assure us that all these autopsy reports appear in
10 the A to D annexes underlying the 25th of November decision.
11 MR. MARGETTS: Yes, Mr. President, all of the autopsies reports
12 referred to in annexes to Mr. Clark's expert report have been admitted
13 into evidence.
14 Secondly, we provided the Defence with a listing and a
15 referencing to the appendices that are referenced in the 25
16 November order, so if my learned friend refers to the exhibit list, he
17 will be able to see the listing on the left-hand side. And then whether
18 or not they're admitted appears in the far corner of the list we've
19 provided to the Defence.
20 JUDGE ORIE: [Overlapping speakers] ...
21 MR. KEHOE: [Overlapping speakers] ... just for sake of clarity
22 and for the transcript as to keeping track of the document.
23 JUDGE ORIE: Yes. Questions were put to the witness in relation
24 to this autopsy report. I take it that you wanted it to be a D number
25 assigned to it.
1 MR. KEHOE: Yes.
2 JUDGE ORIE: Mr. Registrar, this report which is numbered case
3 number KN01 --
4 MR. KEHOE: It's 65 ter 6184.
5 JUDGE ORIE: Yes. Now -- yes, as a matter of fact -- yeah. I
6 was dealing with the previous one.
7 MR. KEHOE: 6184 is KN204 [Overlapping speakers] ...
8 JUDGE ORIE: 204 B. Yes. Okay. That was the previous one which
9 we saw on the screen.
10 Mr. Registrar, the autopsy report KN01/204 B which has been shown
11 to the witness previously will have number, Defence number ...
12 THE REGISTRAR: This document shall be given exhibit number
14 Thank you, Your Honour.
15 JUDGE ORIE: D1221 was already admitted into evidence but now
16 continues its evidentiary life as D1221.
17 Please proceed.
18 MR. KEHOE:
19 Q. Doctor, I'm going to turn to yet another autopsy report for
20 KN01/281, which is 65 ter 6248. Again, it's on the screen. And again if
21 we go to the last -- or actually first -- fourth paragraph we have a
22 findings that are neither consistent nor indicative of being caused by
23 ballistic influence and by -- but by blunt trauma to the chest and
24 pelvis. There were no other kind of trauma to the bones and the cause of
25 death is blunt trauma to the chest and pelvis. And again in your
1 supplemental information sheet you took issue with this and noted that
2 the damage to the spinal column and vertebrae suggest that this death was
3 caused by gunshot injury. Is that right, sir?
4 A. Yes, I knew these cases would cause problems, but they have to be
5 taken in the context of all of other cases.
6 I looked at this report and felt that describing comminuted
7 fractures. Now comminuted means a bone which is broken into several bits
8 in the spine, is a very uncommon injury in -- with blunt force trauma as
9 we see it, either somebody being hit by something or even somebody
10 falling, or even a road accident. It is it a very uncommon injury, and I
11 felt in the context of all the other cases that an injury like that,
12 breaking up a bone is probably more likely gunshot damage.
13 However, you will note that I did not change -- well, I changed
14 the cause of death but put it unascertained because I felt that we could
15 not decide particularly easily. So the cause of death is -- I think now
16 should probably be unascertained.
17 Q. So, in fact, you did change Dr. Mendonca's conclusion?
18 A. I have not changed the post-mortem report, the autopsy report,
19 and that stands. And that she can be questioned on it if need be, but
20 doing my summary report, that I just taking everything into consideration
21 I felt that that was probably more likely to be gunshot damage. I'm sure
22 if we had discussed it at the time in the mortuary, we may have come to
23 -- I don't know what decision we would have come to, but we could have
24 discussed it.
25 Q. I understand.
1 MR. KEHOE: Your Honour, at this time, we'd like to offer 65 ter
2 6248 into evidence.
3 JUDGE ORIE: That is the supplemental information sheet?
4 MR. KEHOE: No, Your Honour, that is the next --
5 JUDGE ORIE: [Overlapping speakers] ... the next autopsy report.
6 MR. MARGETTS: Yes. Which is already admitted into evidence. It
7 just needs a number assigned.
8 JUDGE ORIE: Yes. That would be a D number, Mr. Registrar.
9 THE REGISTRAR: Your Honours, that will be D number 1222. Thank
10 you, Your Honours.
11 JUDGE ORIE: D1222, the Chamber establishes that it is it already
12 admitted, and that it will further carry this number.
13 Now let me just check ... yes, that supplemental information
14 sheet, is that available to this Chamber because you're referring to it?
15 MR. KEHOE: It hasn't been, Judge, but we have no objection with
16 it being made available to the Chamber.
17 JUDGE ORIE: Yes. Of course, I am a bit confused. In the
18 supplemental information sheet we're supposed to find -- we do not know
19 exactly the reasons that it was rather a gunshot injury than -- than
20 blunt trauma, and on the list attached to the report, we find
21 unascertained cause the death which are -- we have now three options.
22 MR. KEHOE: Yes, Your Honour. We have uploaded the supplemental
23 information sheet. We can bring it up and then just move it into
24 evidence so Your Honours --
25 JUDGE ORIE: Because otherwise we are missing a portion.
1 MR. KEHOE: It's a --
2 JUDGE ORIE: Mr. Margetts, is there any problem in uploading
3 that, since it now gives a bit more. It gives a third option for the
4 cause of death.
5 MR. KEHOE: It has been uploaded, Judge.
6 JUDGE ORIE: Yes. Supplemental information to be tendered by
7 you, Mr. Margetts?
8 MR. MARGETTS: Yes, Mr. President, possibly it would be
9 worthwhile having the witness review that supplemental information sheet
10 given --
11 JUDGE ORIE: And it will be marked for identification for the
12 time being and then we might ask you to do some homework, Mr. Clark.
13 If a hard copy would be available, and if -- do we have for the
14 supplemental information sheet, do we have a 65 ter number? Has it been
15 uploaded already?
16 MR. KEHOE: I have uploaded it. 1D64-0011.
17 JUDGE ORIE: 1D64-0011. Perhaps if it has been uploaded by the
18 Defence let's give it -- [Overlapping speakers] ...
19 MR. KEHOE: [Overlapping speakers] ...
20 JUDGE ORIE: Mr. Registrar.
21 THE REGISTRAR: This document shall be given exhibit number
22 D1223. Thank you, Your Honours.
23 MR. MARGETTS: And, Mr. President, if that could be marked for
24 identification pending the witness's review of that sheet.
25 JUDGE ORIE: Yes, D1223 is marked for identification, a hard copy
1 should be given to Mr. Clark.
2 And Mr. Clark
3 information sheet in which the last minute information is usually
4 reflected to see whether there are any matters which you find not
5 correct. If you could do that over night, so that we could hear from you
7 And which party is going to provide Mr. Clark with the ...
8 MR. MARGETTS: We will do that, Your Honours.
9 JUDGE ORIE: Yes, if you provide it to the registry, then it will
10 be given to Mr. Clark.
11 Please proceed, Mr. Kehoe.
12 MR. KEHOE: Thank you, Mr. President.
13 Q. Dr. Clark, I raise these issues not to question the good faith of
14 everybody involved, but simply, this highlights what you were saying in
15 your report on page 5. It says:
16 "Seldom possible to strictly prove the precise cause of death."
17 And people can look at this in different ways. Isn't that right?
18 A. Yes.
19 Q. Now, I noted during the course of your direct examination -- and
20 bear with me if I don't have the exact numbers. I noted that you had,
21 for instance, been in Srebrenica. And I think you noted there were six
22 different locations that you examined and --
23 A. At least six yes.
24 Q. And I think you didn't mention this, but I do believe I think I
25 read in some of your correspondence that you, in fact, were looking at
1 graves that had been disturbed and changed and bodies hidden, et cetera.
2 Isn't that right?
3 A. Yes, a few were like that, yes.
4 Q. Now, in this discussion you were examining bodies that were in a
5 cemetery in Knin.
6 A. Yes.
7 Q. A much different situation, for instance, than what you were
8 presented with in Srebrenica?
9 A. In some of the cases. Some of the sites in Srebrenica were
10 primary graves and not dissimilar to this one, other than -- here I
11 gather that the bodies were laid out, where in Srebrenica, they were
12 jumbled on top of each other.
13 Q. The bodies in this situation were laid out?
14 A. Yes.
15 Q. Now we have heard much talk. And by witnesses not much talk.
16 There has been talk by witnesses of this cemetery being a mass grave, and
17 for the sake of the Chambers reference, that would be pages 10661, line 7
18 through 10666, line 25, the testimony of Mr. William Hayden.
19 Now these bodies that were laid out in an orderly fashion were
20 not -- well, let's just talk about it. These bodies that were laid out
21 often times were in coffins, weren't they?
22 A. Some of them were, yes.
23 Q. Some were in plastic bags, right?
24 A. Yes.
25 Q. Some of them had identification numbers on them?
1 A. The majority in KN01 had identification labels.
2 Q. Some of them even had viles of blood around their neck?
3 A. Blood bottles. No blood in them. Blood bottles with a name in
5 Q. With the name of the person?
6 A. Yes, inside.
7 Q. So this particular cemetery was a cemetery that, you concluded,
8 was set out not to hide these bodies from the international community
9 such as you might have found in Srebrenica, isn't that right?
10 A. I don't think that is a question for me to answer.
11 JUDGE ORIE: Mr. Margetts.
12 MR. MARGETTS: I'm not sure what the basis is for asserting to
13 Dr. Clark that's what he concluded.
14 JUDGE ORIE: The witness answered the question by saying that he
15 doesn't think it is a question for him to answer. Apparently he
16 considers it to be beyond his expertise. But of course you can ask
17 questions of fact.
18 MR. KEHOE: Yes, sir.
19 Q. And I would refer to your report that -- and you say in page 11
20 of your report that it has to be remembered also that these were all
21 bodies from a normal cemetery and so may have been there before the
22 incident being investigated.
23 A. Yes.
24 Q. So first and foremost, this was not a cemetery that you concluded
25 as a forensic pathologist would contain bodies that were being hidden.
1 Isn't that right?
2 A. Well, I'm not sure I follow that. I mean, I barely saw the
3 cemetery. I wasn't involved in the exhumation. I don't know what -- how
4 you could interpret degree of hiding or not.
5 Q. I'm sorry?
6 A. I'm not sure there is much more I can say about that.
7 Q. Let me take it one step further. It certainly wasn't a cemetery
8 such as you found -- possibly found in Srebrenica or may have heard about
9 in Iraq
10 pushed into the ground and then dirt pulled over them?
11 A. Yeah. It's my understanding and based -- to some extent on the
12 photographs, the pre-burial photographs, that these were bodies placed
13 deliberately into a grave, killed elsewhere, and placed into a grave in a
14 relatively neat order.
15 Q. And when you concluded it was in a relatively neat order, you
16 took into consideration that these bodies were numbered and laid out in
17 an orderly fashion?
18 A. Yes. You can see that in the photographs there. The ones in the
19 grave any way are lined up.
20 Q. Now, let me talk with you a little bit about some of the
21 circumstances and the injuries that we have.
22 Now you note on page 24 of your report that of the assumed 245
23 genuine cases, 202 had died of gunshot wounds; 6, 2.5 per cent, from
24 blast injuries; one from blunt force trauma and a knife to the head, and
25 the remaining 35 were those dying from causes unknown.
1 Now, let's deal with the gunshot injuries. The gunshot injuries
2 that you saw -- in many cases were from high-velocity rounds?
3 A. Yes.
4 Q. And high-velocity rounds I think you told us were a 7.26 round
5 coming out of a AK-47?
6 A. Yes.
7 Q. These are the type of injuries that you expect to see in war,
8 aren't they?
9 A. Yes. Well, partly. More often in war you will find many more
10 explosive injuries than bullet injuries.
11 Q. But dealing with the gunshot injuries because we'll get to the
12 blast injuries as well.
13 A. In terms of gunshot injuries, yes, that is the sort of injury you
14 would expect.
15 Q. Just going a little further in your report. Again I'm staying on
16 page 24 for a bit, where you talk about the use of high-velocity rounds.
17 You note that there was no particular pattern to the shots then the
18 majority being to the trunk, the largest surface area of the body, and
19 striking the body from a variety of different directions.
20 Now, that assessment, Doctor, is consistent with an assaulting
21 army shooting at the enemy with an attempt to putting that enemy on the
22 ground. Isn't it?
23 A. It could be, yes.
24 Q. Well, that is it normally what the use of an AK-47 is, isn't it,
25 to spit out a significant amount of high-velocity rounds to put the enemy
1 on the ground?
2 A. Yes, of course, yes. I thought you were implying about
4 Q. I understand that the direction of fire becomes a difficult
6 A. Yes.
7 Q. But all I'm getting at here, is you have of your 245 genuine
8 cases, and 202 dying of gunshot rounds --
9 A. Yes.
10 Q. -- most of those people died of high-velocity -- of high-velocity
11 rounds. Most of them took shots to the trunk area, and that type of
12 shooting is consistent with an armed combat of people moving or shooting
13 in a direction against the enemy.
14 A. That pattern is. There was also a pattern of a certain number of
15 cases in which single gunshot injury to the head.
16 Q. We'll get to that in a second because we have some --
17 JUDGE ORIE: Mr. Kehoe, may I ask you to make the usual pauses
18 between -- because the transcriber has some difficulties in following
19 your relatively high speed of speech.
20 MR. KEHOE: Apologies, apologies.
21 JUDGE ORIE: I wouldn't say high energy, but high velocity.
22 MR. KEHOE:
23 Q. Doctor, you speak with a Scottish accent and I speak Brooklynese.
24 And there is some difficulty going back and forth, so I will take a pause
25 between a question and answer.
1 I'm sorry, did you finish your last answer?
2 A. Yes.
3 Q. Okay.
4 Now, you also note that - again this is it on page 24 -
5 28 per cent of the people appear to be killed by a single shot. Do you
6 see that?
7 A. Yes.
8 Q. Now, when you say a single shot, and this includes shots to the
9 cranium or wherever, the difficulty you have with that is that if there
10 is an shot to the cranium, which, based on your analysis, may be the
11 death shot.
12 A. Yes.
13 Q. It can take into account possibly multiple other shots to the
14 torso which you may not find because all you're dealing with is skeletal
16 A. That may account for a small number, but really a shot to the
17 torso unless it's in a very small area in the abdomen on either side is
18 going to leave damage on the bone. You have a very short space between
19 your ribs and your hip bone.
20 Q. I mean -- let me -- let me qualify that as the torso. Let me say
21 the trunk. If we have a shot to the head and spraying AK-47 rounds to
22 the head and some the trunk and people are taking -- a soldier is taking
23 several rounds to the trunk, in a very short order, that person will
24 bleed out. And when you look at the body, you may only see the shots to
25 the head and may not see what could be the fatal injury which is a shot
1 to the actual trunk.
2 A. Well, remember your spine goes down the back of your trunk all
3 the way. As I say there is a very signal area on either sides of the
4 abdomen on which there is no soft tissue from front to back, and, yes, I
5 have admitted that, but we could be missing a few shots, but I would
6 doubt very much if it was a huge number.
7 Q. I understand. And I understand that, but that is also a factor
8 in this equation which makes the actual cause of death very uncertain?
9 A. I think maybe you should get away from cause of death because the
10 important thing is the number of injuries or the fact that they have been
11 shot. The cause of death to some extent is subsidiary.
12 Q. Let's go -- I apologise.
13 Then I will take your lead and just say, that it calls into
14 question the number of shots that an individual body took on when that
15 person was shot.
16 A. Well, we are -- trying to estimate as well -- as best we could
17 the minimum of shots to each person, and on the one hand, we've got to
18 balance missing a shot through a soft tissue like the abdomen or the
19 thigh, but, at the same time, what we interpreted as one shot damaging
20 maybe two parts of the body could easily be one. So I think there is a
21 balance on either side.
22 Q. Again, Doctor, I understand the difficulties with being -- doing
23 this examination so far done the line. But it does become difficult to
24 make the assessment as to the number of shots even if someone only has
25 one shot to the cranium.
1 A. Yes. Which is why I put minimum number. That's the ones that I
2 can -- I'm fairly happy about.
3 Q. The next issue I just want to talk briefly about and to clarify
4 this, and that goes to actually when this -- these -- these killings,
5 deaths, if you will, transpired because there are some people that died
6 of natural causes, of course, some people that died of gunshot wounds.
7 A. With respect we don't know that people died of natural causes. I
8 can only speculate at that.
9 Q. We'll get to that. We have a few of those. We'll get to that.
10 Now, you note -- at page 1 of your report that the mortuary team
11 had fairly limited information -- page 1, paragraph 2.
12 A. Yes.
13 Q. "The mortuary team had fairly limited information about the cases
14 but were aware that they were said to have included alleged victims of
15 Operation Storm, the military offensive reported to have been carried out
16 against the Serb population in the Krajina region of Croatia from
17 August to November 1995."
18 Now, Doctor, were you made aware that there was combat between
19 the Serb forces and the Croatian forces, the HV, throughout the winter of
20 1994 and throughout 1995 through various operations up until
21 approximately July the 28th of 1995?
22 A. We weren't specifically made aware. I'm aware that that -- since
23 that that is a possibility, yes.
24 Q. Okay. And did you inquire as to where the Serb soldiers who were
25 killed in that operation were buried?
1 A. No. I mean you could take the argument that the less information
2 that we are given as -- in the mortuary, the better because we can be
3 more independent. I mean some people will take that view, and I think --
4 if we were given a great deal of specific information that may well could
5 prejudice us.
6 Q. It could help as well?
7 A. It could help.
8 Q. Yes.
9 A. But that perhaps could come at a later date in reviewing the
11 Q. Well, let's take that. It could come at a later date, and you
12 are looking at these bodies. There was no way for you to determine, was
13 there, which Serbs -- which individuals in that grave had been killed in
14 combat prior to the 4th and the 5th of August. Is that --
15 A. None at all, no.
16 Q. And let's take the outside of Operation Storm and say it went
17 from the 4th to the 8th of August, given at the outside a date. There
18 was no way for you to make a determination when you did the exhumation
19 and your forensic work which bodies in that grave were buried in there or
20 died after combat operations had ended in Operation Storm?
21 A. No. I have no detailed information of the grave site.
22 Q. You couldn't tell the difference. Would that be accurate?
23 A. Yes.
24 Q. Now, I -- I raise this point for this issue, and if I can turn
25 your attention to your annex for KN01, and I present this at -- on page
1 13. And I address you to the KN01/307 B to 315. Do you see those, sir.
2 A. Yes.
3 Q. One begins Dusan, Djukic. And then there are a whole bunch of
4 Beric's. Do you see that?
5 A. Yes.
6 Q. According to the evidence presented to this Court and the
7 clarification schedule that was presented by the Office of the Prosecutor
8 to the Chamber, these are events that took place in Varivode on the 28th
9 of September of 1995.
10 Now, were you informed that these deaths occurred approximately
11 28th of September 1995, well after the Operation Storm matters were over?
12 A. No. I mean, at the time of the autopsies, we had no identify
13 about identification. Identification of the bodies only came later on.
14 So we had no idea who was who. We could not identify a particular body.
15 Q. Well, let me take it one step further and move ahead from after
16 the actual time when you were doing the forensic analysis at the morgue
17 in Zagreb
18 your reports or having discussions with the Office of the Prosecutor as
19 late as yesterday, did you have discussions that deaths such as that had
20 occurred well after?
21 A. No.
22 Q. Now, if we look just at these -- and there are others. We can go
23 into them if you want to. But if you look just at these, in dealing with
24 the Varivode situation, there are at least four of that list were single
25 shots to the head.
1 A. Yes.
2 Q. Okay. Now, when you were -- and I'm talking about since the
3 2001 -- in trying to flesh out the work that you have done, did you ask
4 the Prosecutor if the Republic of Croatia
5 this matter so that you could have the benefit of findings that they had
6 made so you could maybe more accurately assess your conclusions?
7 A. No. I don't think that's our role. I mean, certainly not the
8 way that I'm used to practicing autopsy reports and giving evidence in
9 the -- in the UK
10 autopsy, and, if it is put to you certain scenarios, as you are doing at
11 the moment, I'm happy to agree or disagree. But it is not my role to
12 initiate investigations, unless it is something very peculiar and
13 difficult to understand.
14 Q. And my statement to you, Doctor, is I'm not disagreeing with
15 that. I'm just saying that type of situation where an investigation had
16 in fact been conducted in some fashion by the Republic of Croatia
17 to coming in here to testify today, none of that information had been
18 presented to you for your review to see if, in some fashion, additional
19 information could clarify or sharpen some of your conclusions.
20 A. No.
21 JUDGE ORIE: Mr. Kehoe the Chamber wonders, you're putting a lot
22 of information to the witness, for example, this one, whereas the Chamber
23 does not understand the report to say anything about when exactly these
24 people died, whether they died from gunshot injuries by -- during a
25 combat operation, outside the context of a combat operation. We find
1 nothing you put to the witness at this moment as part of the report. I
2 think the report describes the findings and the difficulties in making
3 any determination.
4 And I take it if you could have made determinations on the basis
5 of your expertise, which went beyond what we find here, that you would
6 have indicated so.
7 THE WITNESS: Yes.
8 JUDGE ORIE: And, if not, that you were not able to do -- to make
9 such determinations, such as whether the context --
10 MR. KEHOE: [Microphone not activated].
11 JUDGE ORIE: Mr. Kehoe, you are putting a lot of things to the --
12 Mr. Clark, yes, which seems not to be part of what he has presented here.
13 MR. KEHOE: We will go into yet further. I mean, if I can ask --
14 JUDGE ORIE: Well, if it brings us somewhere --
15 MR. KEHOE: It will bring us -- it will bring us, Judge, because
16 we will -- if you bear with me, Judge, there are numerous items here that
17 we will go into concerning what the Office of the Prosecutor has
18 presented to the Chamber as --
19 JUDGE ORIE: What the Chamber understands has been presented at
20 this moment is the findings of Mr. Clark. That is, what he found on a
21 skull, whether he found any clothing on the bodies, these kind of things,
22 and not anything more. So therefore --
23 MR. KEHOE: There is a lot more, Judge. This is a lot more. I
24 mean, that -- in presenting Dr. Clark with additional information as a
25 forensic pathologist, that he should have been informed of. There is a
1 lot more and a lot of these that -- as we go through them.
2 JUDGE ORIE: Well, until now, we haven't -- just for argument's
3 sake, if Mr. Clark would have known that there would have been an
4 investigation about a Varivode event, either prior to or after, what --
5 in what way would that have changed any of his findings or --
6 MR. KEHOE: Very simply. In his report -- I'll answer that
7 question. It would have given Dr. Clark a time range as to when events
8 took place. Now, quite clearly, Varivode is well outside of Operation
10 JUDGE ORIE: Yes. But is there -- was Mr. Clark, was he
11 focussing on timing of the cause of death? Is that part of what he
12 presents to us?
13 MR. KEHOE: That is always a part of a forensic pathologist's
14 determination. In this instance, it's a very difficult scenario to
15 approach because of the time, because of the decomposition of the bodies.
16 JUDGE ORIE: Let's ask Mr. Clark: Did you focus, in your
17 expertise, on the time at which death occurred in these cases?
18 THE WITNESS: No. Clearly these people had not died in the
19 previous few weeks, and they had been clearly dead for a considerable
20 time. Whether that was three years, four years, five years, longer, I do
21 not know, and I certainly could not at any stage tell that it was four
22 years, seven months, or four years nine months.
23 It has come over to me and to others in all our work in these
24 mass graves how variable the preservation of bodies are. And you can see
25 in this grave we have some bodies which are fully -- well, fully intact
1 and other ones that are completely skeletonized, how we can tell time of
2 death, well, I know we can't.
3 MR. KEHOE:
4 Q. You can't.
5 A. No.
6 Q. So you can't distinguish between, for instance, deaths that took
7 place in active combat from situations as what we have in Varivode that
8 took place on the 28th of September, 1995. Is that right?
9 MR. MARGETTS: Sorry [Overlapping speakers] ...
10 JUDGE ORIE: [Overlapping speakers] ... Mr. Kehoe, time is one
11 thing, and in your next question you refer to circumstances. Time, I
12 think, Mr. Clark already said, No, I couldn't make any, apart from the
13 bodies must have been there for quite some time.
14 THE WITNESS: Yes.
15 JUDGE ORIE: But circumstances, of course, can be related to
16 time; but if you cannot say anything about the time, then the next
17 question could be, Could you tell us anything about the circumstances?
18 And may I take it then whether it was combat or not, that we
19 would receive a similar answer, that you could not identify that?
20 THE WITNESS: Yes, exactly.
21 JUDGE ORIE: Please proceed.
22 MR. KEHOE:
23 Q. Let's take Judge Orie's comment about the circumstances. I mean,
24 is it clear from your report or your testimony that you don't know the
25 circumstances of the deaths of these people?
1 A. Not in any detail at all, no.
2 Q. So while the cause of death is very difficult, you have no idea
3 of the manner of death, right?
4 A. Well, I mean, the cause of death is not that difficult, you know,
5 given the conditions that I have explained. The manner of death is not
6 something -- certainly in my own jurisdiction is not something that we
7 ever decide. It may be in your own jurisdiction, but in the UK, and that
8 is what I'm used to practising in, manner of death is for the courts to
9 decide on, not the pathologist.
10 Q. Well, even in the UK
11 manner of death, and you are asked, Doctor, are you not, whether or not
12 these particular facts are consistent with what you found in your
13 forensic examination?
14 A. Yeah, but that's -- that's kind of cause of death. Manner of
15 death I understand as -- whether this is homicide, accident, suicide,
16 natural causes, and that is not -- we can give a guidance to it, but it
17 is not up to us to judge that.
18 Q. Well, with regard to the -- actually, the examinations that you
19 made, you excluded certain of the examinations as not relevant or not
20 true cases because you had concluded that this person had died in a
21 hospital and was not a true case, and I think you told us those were
22 mostly in KN02 or KN03.
23 A. Yes. We gave the benefit -- these are cases in which no cause of
24 death, no injuries, no obvious cause of death, and they had hospital
25 paraphernalia on them, shall I say, and we could --
1 Q. Let just look at a couple of those but --
2 MR. KEHOE: Excuse me.
3 I'm informed by my courtroom officer --
4 JUDGE ORIE: It's time for the break.
5 MR. KEHOE: That's right.
6 JUDGE ORIE: It actually is. Before we move to another subject,
7 we'll have a break, and we resume at 6.00.
8 --- Recess taken at 5.39 p.m.
9 --- On resuming at 6.01 p.m.
10 JUDGE ORIE: Mr. Kehoe, please proceed.
11 MR. KEHOE: Yes, Your Honour.
12 Q. Doctor, just going back to a couple of other issues, and
13 focussing mainly on KN01. I think that when you were -- you were
14 previously talking about Srebrenica, and I think you noted at one point
15 in one of your writings that 77 per cent of the people at the Kozluk
16 site had been shot in the back. Is that right?
17 A. Yes, I think so. I know what you're referring to. I'll tell you
18 what for that figure, I --
19 Q. Roughly.
20 A. I'm sure it's about that, yeah.
21 Q. And based on what you observed there, you could make general
22 hypothesis as to how those people died, couldn't you?
23 A. Yes, to some extent, the -- the evidence in that case was --
24 well, against them being combat casualties was the fact that they had
25 blindfolds and all the rest of it, but that a lot of the injuries were to
1 the back of the body which you with a not necessarily expect in
2 face-to-face combat. I think it is also worth stressing, and I have
3 already said it today, that it's a feature that in combat situations that
4 explosive injuries are much commoner [sic] than we saw earlier in Kozluk
5 and in the Knin cases.
6 Q. Just taking what you just said with regard to blindfolds and
7 ligatures. I think you had one woman that had a blind followed on?
8 A. Possibly, yes.
9 Q. But there was nothing like what you saw in Kozluk?
10 A. No, not at all.
11 Q. Now, staying with KN01, you told us this morning - and this is it
12 at page 13, line 16 in -- on my -- when Mr. Margetts was asking - when
13 you arrived at the conclusion that other cases were true cases:
14 "What type of indicia indicated to you that they were true cases?
15 "These were cases by which appeared to be people not dying in
16 hospitals. In other words that had normal clothing on them."
17 Now, let me -- let's go through a couple of these and again we're
18 dealing with KN01. And if we could bring up 65 ter 6387.
19 As you could see, this is a 25 to 45-year-old male, I believe,
20 female, excuse me, female with the cause of death being uncertain and the
21 case number is KN01/434 B. And if I could just go through Showing you a
22 sequence of documents here, doctor. And this is 1D -- moving away from
23 this document now, 1D64-003.
24 MR. KEHOE: Before we do that, Your Honour, I move into evidence
25 65 ter 6387.
1 JUDGE ORIE: Mr. Registrar.
2 THE REGISTRAR: Your Honours, this document shall be given
3 exhibit number D1224. Thank you, Your Honours.
4 JUDGE ORIE: Indeed D1224 was already admitted, although without
5 a number into evidence.
6 Please proceed.
7 MR. KEHOE: If we could turn our attention to 1D64-0013.
8 Q. Now, doctor, this is a woman whose name is Zagorka Ognjenovic, as
9 you can see it is -- the number is 434, which matches the autopsy report
10 that was just received in evidence, D1224. And she is likewise listed on
11 page 13 of your appendix as one of the cases from KN01.
12 If we can turn to 1D64 -- excuse me, if we could offer into
13 evidence ... actually, it's -- I'm sorry, if we can go to the next page
14 of this document. I'm informed that this is one document in toto, Mr.
15 President. If we can go to the next page.
16 Now, this woman who was on the Prosecutor's clarification
17 schedule appears to have died on the 2nd of August of 1995 in Banja Luka
18 Now, this particular information, sir, this is information that if you
19 had had this information, you would have concluded that this was not a
20 true or genuine case, wouldn't you?
21 A. Depends what you mean by true.
22 Q. Well --
23 A. It is implying that she died in a hospital. I'm not sure if it
25 Q. Well, she died -- go down to page 15. She died -- where the
1 death occurred, a hospital.
2 A. Under two, a flat or another place. Doesn't distinguish the two.
3 Q. The woman was clearly dead prior to Operation Storm. Would you
4 agree with me? If Operation Storm was 4 August 1995, this woman was dead
5 prior to Operation Storm, and according to this document it occurred in
6 another geographic location Banja Luka?
7 A. Time of death is given the 2nd of August, 1995, so, yes, I agree
8 I accept that.
9 Q. It would not have been a document that would have been a true
10 case, and you, had you been given this information, would have excluded
11 it from your data, wouldn't you?
12 A. Which I may well have done.
13 Q. Can you check?
14 A. I think I probably have excluded it.
15 Q. Well, if you look at --
16 A. The lists are not -- are not necessarily -- the listing on 12 and
17 13 does not necessarily imply, inverted commas, 'genuine cases,' it is
18 applying to all cases. And some of these will be undoubtedly, I think,
19 hospital or people who have died of natural causes, not relevant.
20 Q. I understand, doctor. Isn't it a fact that you excluded those
21 hospital cases from KN02 and KN03, and you likewise excluded the
22 uncertain conclusions from KN01 and KN03, but you included all of the
23 uncertain conclusions when you were dealing with KN01, did you not? I
24 can point to your report.
25 A. We certainly -- well, if you look at paragraph 3 on page 11, she
1 is one of the unascertained causes, and if I can quote:
2 "There may be evidence from other sources to suggest what may
3 have been the cause of death in some of these people, but the autopsy
4 report on their own can add little. It has to be remembered also that
5 these were bodies from a [indiscernible] normal cemetery and so may have
6 been there from before the incident being investigated."
7 And I would have thought that covers that quite adequately.
8 Q. Doctor, bear with me. Maybe I'm confused, so that could very
9 well be the case, and my apologies if I am. Those items that you
10 concluded were hospital patients. You excluded from your analysis on
11 KN02 and KN03. Here we have a death preceded -- that preceded Operation
12 Storm yet it is included in your analysis when you set forth the cases in
13 Annex a for cases KN01?
14 A. No. I think you misunderstood.
15 JUDGE ORIE: Mr. Kehoe, if you put to this witness what he
16 considered to be true cases, you should put to him what his answer was,
17 and I read to you on page 13, line 9 and following when he was invited to
18 explain what he referred to cases as true cases, he said:
19 "Within these sites, particularly there KN02 and KN03, there were
20 bodies which had no injuries in them, which appeared to be hospital
21 patients because they were wrapped in hospital sheets or had other
22 hospital-related items, and we took the view that these were probably
23 people who died of mainly natural causes in hospital and should probably
24 be excluded from analysis of the other findings. We may have
25 misinterpreted that, but that's the view I took."
1 So the elements of untrue cases in the testimony of this witness
2 was that bodies without injuries who appeared to be hospital patients
3 because being wrapped in hospital sheets or other hospital-related items
4 with them. That's how he defined this category, not those who died in
5 hospital, but those who were found without injuries and from what was
6 found, there was a strong suggestion or suspicion that they may have died
7 in hospital. That's what the witness testified.
8 So if you want to put any follow-up questions, could you please
9 refer to what the witness said, rather than to whether we are talking
10 about hospital patients. Now, we are talking about persons who were
11 found with hospital items or paraphernalia as the witness later said,
12 with them.
13 Please proceed.
14 MR. KEHOE: Yes, Mr. President.
15 Q. Now, Mr. Clark, that was the difference between the 295 of bodies
16 that you actually saw and the 245 who were true cases, right?
17 A. Well, I think it is wrong to settle on precise numbers. I have
18 said probably around about that.
19 Can I just go back to something you said earlier --
20 Q. If I may, doctor, I just read your testimony on line 234 of what
21 Judge Orie said. It says:
22 "Of the 295 bodies 245 were probably 'true' cases."
23 And true is in inverted comas. That's your testimony from
24 earlier today. I just wanted to be clear about that. I'm sorry, I
25 didn't mean to cut you off.
1 A. Well, the inference is -- the [indiscernible] is that I cannot be
2 concern. I'm sure there are some cases which we have put into the wrong
3 category, but I imagine it is quite a small number.
4 But you did say that I had excluded from my analysis the hospital
5 patient. That is it not true. My analysis is covering the entire grave
6 site, and I do cover these hospital patients, but they don't feature in
7 the gunshot analysis because they didn't have any gunshot injuries or
8 other injuries.
9 So it is wrong to say that I have excluded it from my overall
10 analysis. That's not true.
11 Q. That's fine, sir.
12 MR. KEHOE: We'll offer into evidence 1D64-0013.
13 JUDGE ORIE: Mr. Registrar.
14 THE REGISTRAR: Yes, Your Honour, this document shall be given
15 exhibit number D1225.
16 Thank you, Your Honours.
17 JUDGE ORIE: And this was a document which was not yet contained
18 in the documents the Chamber decided over, in the 25th of November,
19 Mr. Margetts, or was it?
20 MR. MARGETTS: No, Mr. President.
21 JUDGE ORIE: Any objection against admission of this document?
22 MR. MARGETTS: Mr. President, if I could have a moment to review
23 it, and if I could indicate to the Court in a moment whether it -- you
24 know, and possibly at the end of the session whether there is an
1 JUDGE ORIE: Yes. Then, while we find a fancy exhibit number,
2 but I think it should be D1225, maybe a mistake on page 79, line 10, is
3 marked for identification.
4 MR. KEHOE: May I proceed, Mr. President.
5 JUDGE ORIE: Please do so.
6 MR. KEHOE:
7 Q. Just staying with this issue just a bit, doctor. Let's bring up
8 65 ter 6432.
9 Now, in this particular autopsy, sir, is from KN03. It's listed
10 in your annex on page 20 as Dmitar Vujnovic, V-u-j-n-o-v-i-c. And the
11 death is marked as uncertain.
12 A. No, unascertained.
13 Q. Excuse me, unascertained. My apologies, I misspoke. And it's by
14 a Dr. Fialka.
15 MR. KEHOE: Your Honour, at this time, we'd like to offer into
16 evidence 65 ter 6432.
17 MR. MARGETTS: Mr. President, it is one of the ones --
18 JUDGE ORIE: It's one of the one of the ones already in evidence,
19 a number to be assigned.
20 Mr. Registrar.
21 THE REGISTRAR: Your Honour, this is document shall be given
22 exhibit number D1226. Thank you.
23 JUDGE ORIE: D1226 was already admitted into evidence but is now
24 assigned with this number, being the autopsy report, KN03/162B.
25 Please proceed.
1 MR. KEHOE: If we can bring up 1D64-0026. We have the
2 identification form on page 1.
3 Q. We can see the -- well, if you just go back to the first page,
4 please, just so we get the numbers straight there which is 162. Okay.
5 KN03/162 is the last listing on Annex A for KN03, and if we go to the
6 next page. And this notes that this individual died five days before
7 Operation Storm, 31 July 1995
8 information, this documentation, was not brought to your attention prior
9 to you doing your autopsies and certainly prior to putting this document
10 together or at any time when you met with the Prosecutor over the last
11 several months?
12 A. No.
13 MR. KEHOE: Your Honour, at this time, we'd like to offer into
14 evidence 1D64-0026.
15 MR. MARGETTS: Mr. President, this falls into the same category
16 as the last document. If I could have a moment to review these
18 JUDGE ORIE: Number to be assigned for marking this document for
20 Mr. Registrar.
21 THE REGISTRAR: Your Honours, this document shall be given
22 exhibit number D1227. Thank you, Your Honours.
23 JUDGE ORIE: D1227 is marked for identification.
24 Please proceed.
25 MR. KEHOE: Let's draw our attention to 65 ter 6398, which is an
1 autopsy by Dr. Aiyer from KN01. That should be -- that's all right.
3 Q. As can we can see it is KN01/443, the cause of death for this
4 female was unascertained. If we can turn to 1D6 -- and by the way, this
5 particular KN01/443 is listed in your annex on page 13, second from the
7 If we can turn our attention to 1D64-0033. My apologies, Judge,
8 it is 1D64-0032.
9 Your Honour, before we do that if I can admit the document on the
10 screen which is the autopsy for KN01/443.
11 JUDGE ORIE: Which apparently is already in evidence.
12 Mr. Registrar, it will continue to exist in evidence under number ...
13 THE REGISTRAR: Under number D1228, Your Honours.
14 Thank you, Mr. President.
15 JUDGE ORIE: D1228.
16 Please proceed.
17 MR. KEHOE: We were turning our attention to 1D64-0032.
18 Q. It's a Sava
20 MR. KEHOE: If we can offer into evidence 1D64-0032.
21 MR. MARGETTS: Again, Mr. President, same category of documents.
22 JUDGE ORIE: Yes. No objection.
23 MR. MARGETTS: No, no, no, if I could have some time for
25 JUDGE ORIE: Yes.
1 Mr. Registrar, this would be ...
2 THE REGISTRAR: Your Honours, this will be exhibit number D1229,
3 marked for identification.
4 JUDGE ORIE: D1229 keeps that status for the time being.
5 Please proceed.
6 MR. KEHOE: If we could turn our attention, Doctor, to 1D64-0043.
7 0042, excuse me. 1D64-0042. Apologies.
8 1D64-0042. I'm sorry.
9 If -- my apologies, Judge. If we can go to the next page of this
10 document. I thought we were talking about two separate documents, but
11 apparently we are not. If we go to page 2 of this -- no, this is not the
12 document. We'll get to this in a second. Okay.
13 If we could go to -- and my apologies here, Judge. Go back to
14 D1229 and go to the second page of that document. I thought they were
15 two separate documents from the doc ID numbers, but apparently it is not.
16 If we can go to the second page. There it is.
17 Q. Again, this is the individual that we had the other occupy for
18 which is Sava Besevic who died on 2nd August, 1995, whose in the
19 Appendix A for KN01. Again, this is it not information that was brought
20 to your attention either when you were putting these scheduling together
21 or when you were discussing these matters with the Prosecutor prior to
22 today. Is that right?
23 A. That's right, yes.
24 Q. Let us turn our attention to another report, and it is 1D64-0039.
25 Now, Your Honour, I can just tell Mr. Margetts, this is an
1 autopsy report that has not been included in your list, Mr. Margetts, but
2 it is discussed by Dr. Clark in the report, and it's for KN01/213.
3 JUDGE ORIE: Mr. Margetts, you'll verify whether -- because you
4 said all of them were in evidence.
5 MR. MARGETTS: Yes, Mr. President. All the ones in the annexes
6 are in evidence. The other ones discussed in the body of the report, are
7 not in evidence.
8 JUDGE ORIE: Okay.
9 MR. KEHOE: This is an --
10 JUDGE ORIE: Then it will need a number at a later stage.
11 Please proceed, Mr. Kehoe.
12 MR. KEHOE: Yes, Your Honour.
13 Q. If we could take a look at this, Doctor, this is a report that
14 you talk about, I believe, on page 9 of your report in paragraph 3. It's
15 the first bullet point.
16 A. Yes, I've got it.
17 Q. You're familiar it. Now, just going down, this is obviously, you
18 note, it appears to a military person. Third paragraph down:
19 "He died from a gunshot injury to the head with a bullet probably
20 passing from side to side at the front, entering in front of the right
21 ear, exiting on the opposite side, and fracturing the upper part of the
22 face. No bullet fragments remained."
23 You note there is no other gunshot wounds. Let's just read that.
24 "There were no other gunshot injuries, but there were several
25 fractured ribs on the outer part of both sides of the chest, the nature
1 of some of which at least was suggestive of a blow from a weapon or
3 "There was also fracturing of the upper end of the right shin
4 bone at the front, including a horizontal defect again suggestive of a
5 blow from a heavy weapon, one with relatively pointed edge.
6 "The findings suggested that therefore that this man had been
7 subjected to repeated blows and/or kicking prior to being shot in the
9 "It is my determination that the cause of death is a gunshot
10 injury to the head."
11 If I can just stay with this just a bit, Doctor, on this
12 particular, and if I put in layman's terms what we're talking about here.
13 You have concluded that there was some type of physical altercation, this
14 man was beaten, and after he was beaten, he was shot in the side of the
16 A. That's a suggestion from the findings, certainly. There may be
17 other interpretations, but that's what is suggested to me.
18 Q. I understand. And it's is almost a shot in the head that one
19 could speculate, looks like an execution?
20 A. Could be. Because it is right at the right temple from side to
22 Q. Show us that. Could you just with your hand show us the --
23 A. Sorry. Entering in front of the right ear, so it's just the main
24 part of the cheek-bone going through the head and coming out on the other
1 Q. So just -- if I can just put this on the record. You have your
2 finger right in front of your ear --
3 A. Yes.
4 Q. -- and the -- you speculate that the muzzle was at or -- well --
5 was certainly pointed in that direction with the exit wound on the left
6 side of the cranium?
7 A. Yes. Just because I'm touching the skin, I'm not necessarily
8 implying that the weapon was touching the skin, but it could well have
10 Q. I'm just using direction of fire given entry and exit wound.
11 A. Yes.
12 Q. Now, if we can go to --
13 MR. KEHOE: Can we admit this into evidence, Your Honour, please,
15 MR. MARGETTS: No objection.
16 JUDGE ORIE: Mr. Registrar.
17 THE REGISTRAR: This document shall be given exhibit number
19 Thank you, Your Honours.
20 JUDGE ORIE: D1230 is admitted into evidence.
21 MR. KEHOE: Let me turn our attention to some identification
22 material on this. That would be 1D64-0042. This is -- I'll wait until
23 this comes up.
24 Q. Just the first page. Wait till the English comes up. The first
25 page obviously identifies this individual as Radomir Bojanic.
1 MR. KEHOE: If we can go to the next page.
2 Q. We note that the date and time of death is 4 August 1995 and that
3 his occupation in line 10 is a military officer.
4 MR. KEHOE: Your Honour, at this time, we'd like to offer into
5 evidence 1D64-0042.
6 MR. MARGETTS: Yeah, Mr. President, I haven't heard from
7 Mr. Kehoe any indication as to why he asserts that this particular report
8 relates to the individual described in the autopsy report.
9 MR. KEHOE: Because it's the same name and the same date of
10 birth. It's -- I assume that we have a Radomir Bojanic born in 1948.
11 JUDGE ORIE: I take it that it's because it's the same number
12 because I'm not aware of any identification of anyone in the autopsy
13 reports drafted. But we have, of course, in the report and the
14 circumstances of death there. I think on the first page we also find
15 213, although without a B, which is found on the autopsy report as well.
16 That's -- may I take it that that identifies this person as the one
17 you're referring to.
18 MR. KEHOE: It does.
19 JUDGE ORIE: So it's not by name but by number?
20 MR. KEHOE: It's by number, it's by name, and it's by year of
22 THE WITNESS: Can I just make an observation.
23 If we just go back to that page.
24 My sketchy Bosnian and Croatian, but that looks to me like under
25 18. The cause of death is given as a gunshot injury to the chest,
1 whereas we find it was to the head. So there's a --
2 JUDGE ORIE: Yes, you would say that the Latin in the original,
3 "vulnis skolapitarius capitis [phoen]" is not the same as "vulnis
4 skolapitarium thoracis [phoen]."
5 MR. KEHOE: That's Latin, Judge.
6 JUDGE ORIE: Yes. Thoracis is about the chest, and the capitus
7 is about the head, so I'm -- it's exactly because I learned Latin, Mr.
8 Kehoe, that I was reading it in the original language.
9 MR. KEHOE: If I may, Judge. If we could, and I'm just notified
10 by my case manager, if we could have the translators translate 18 for us.
11 I think it will clarify the issue.
12 JUDGE ORIE: What --
13 MR. KEHOE: On the B/C/S version.
14 JUDGE ORIE: What is typed in or what is --
15 MR. KEHOE: What is typed in.
16 JUDGE ORIE: Well, do we have any Latin interpreters.
17 MR. KEHOE: That's not Latin.
18 JUDGE ORIE: What is typed in is Latin, and what is pre-printed
19 seems to be -- but we could ask -- it says uzroks mrti [phoen].
20 MR. KEHOE: The Latin is different in the two. That's what I am
21 getting at. If you see the Latin in 18 in the English, and you see the
22 Latin of 89 in the B/C/S, the original, it is different.
23 JUDGE ORIE: Yes. That is what Mr. Clark drew our attention to,
24 isn't it?
25 THE WITNESS: I don't think this is Latin. I think with respect,
1 it's B/C/S. I recognise that vulnis capitarium [phoen] from my work.
2 JUDGE ORIE: Yes, that seems to be the Latin part, the medical
3 Latin part, and is there any problem with the translation of what we read
4 in English to be the cause of death and then copy from the death
5 certificate? Is there any problem with that, Mr. --
6 MR. KEHOE: There is no problem with the death certificate being
7 a gunshot wound to the head.
8 JUDGE ORIE: But let me see that the translation of words in
9 Latin in the original B/C/S is translated in a different Latin in the
10 English version. That would be my provisional conclusion.
11 THE WITNESS: I would have thought somebody in the Court must be
12 able to translate what that means.
13 MR. KEHOE: [Overlapping speakers] ... [Microphone not
15 JUDGE ORIE: I take it that it is a mistake, as a matter of fact.
16 MR. KEHOE: I think it's a mistake.
17 THE WITNESS: Yes.
18 MR. KEHOE:
19 Q. Suffice it to say, Doctor, this individual, this Radomir Bojanic,
20 KN01/213 died of a gunshot wound -- you assume he died of a gunshot wound
21 to the head?
22 A. Yes.
23 MR. KEHOE: Again, Your Honour, we will correct it, but we will
24 offer into evidence 1D64-0042.
25 JUDGE ORIE: Any objections? Or same, you would like to look at
1 it first? Then we will have it marked for identification.
2 MR. MARGETTS: Mr. President, the -- these are documents that the
3 witness has not seen, and the witness is not able to make any comments on
4 other than to say that he hasn't seen them, and he is not being invited
5 to make any comments on them.
6 JUDGE ORIE: Yes. We could -- it seems to me that until now we
7 are always talking about people dying on or before the 4th of August.
8 Is that the issue?
9 MR. KEHOE: That was one issue with them. This issue is quite
11 JUDGE ORIE: This issue is quite different?
12 MR. KEHOE: Quite different.
13 JUDGE ORIE: Okay. Then you were not informed about the content
14 of this document at the time?
15 THE WITNESS: Not at all, no.
16 JUDGE ORIE: No time whatsoever? So then it will be marked for
18 MR. MARGETTS: Yes, Mr. President, I'd -- my submission would be
19 that if we're going to proceed with presenting these documents in this
20 way, and the witness isn't able to add anything to them, then it would be
21 better if they were dealt with as a bar table submission. If
22 alternatively there is a need to put them to the witness to see whether
23 they corroborate or contradict the report, then I would invite my learned
24 friend to do that, or I will alternatively --
25 JUDGE ORIE: It is clear that until now that the main purpose of
1 putting it to the witness is that the Defence apparently has in its
2 possession this information which is from a -- apparently from a
3 different source and which gives information that was unknown to the
4 witness when he drafted his reports or at any later stage.
5 Now, to the extent that on the earlier ones, we're talking about
6 the 2nd of August, that would have been a matter which I take it just to
7 establish that there are documents which put the date of death earlier
8 than the 4th of August could have been, I take it, easily been
9 established or agreed upon, as well as that this witness had -- has never
10 received any information about this. I mean, do we have to go -- but you
11 say this one is different, so I'm waiting and we'll look at what is
12 different in this one.
13 MR. KEHOE: Yes, Your Honour. Can we have these marked for
14 identification, Your Honour, at this time.
15 JUDGE ORIE: Yes.
16 Mr. Registrar, The number would be ...
17 THE REGISTRAR: This document shall be given exhibit number
18 D1231, marked for identification. Thank you.
19 JUDGE ORIE: D1231 keeps that status for the time being.
20 Please proceed.
21 MR. KEHOE:
22 Q. Now, we noted from the prior document, and I think that in the
23 course of looking at 213 which is the autopsy report, you had this
24 individual's clothing was camouflage. Can you concluded that this was a
25 military person, did you not?
1 A. Yes.
2 Q. Okay. Let me show you just by way of clarifying this, and if I
3 can take -- show you D -- page from D930. And this is a book by an ARSK
4 soldier Marko Vrcalj called: "The war for Serbian Krajina." And that's
5 the front page, Doctor, and I know you haven't seen this before, but I
6 want you to read one portion of, and I wanted to ask you some questions
7 based on your autopsy and the information.
8 MR. KEHOE: If I could go to page 9 in the English and page 8 in
9 the B/C/S. I think it's on --
10 JUDGE ORIE: First some clarification, Mr. Kehoe.
11 You put it to the witness that you concluded that this was a
12 military person, did you not, and in the report I read "possibly" which
13 is not the same as the conclusion.
14 MR. KEHOE: Possibly a military person.
15 JUDGE ORIE: Possibly a military person. Okay. Please proceed.
16 Is that what your conclusion was?
17 THE WITNESS: Yes.
18 JUDGE ORIE: Please proceed.
19 MR. KEHOE: Can I go to page 9 of the English and page 8 of the
20 B/C/S, and I need to go to the top of the page. I think we have one
21 further page on the English, please. It should be 10 in the English.
22 Q. If we can just read. And this is a book by an ARSK General,
23 Doctor, in Knin, that's writing about the events of the 4th. And I can
24 reference it for you, but suffice it to say that when he says that
25 afternoon in the first paragraph -- that is the 4th of August.
1 "That afternoon, Colonel Bojanic from the RV PVO air force and
2 anti-aircraft had committed suicide in his office because he couldn't
3 stand all this."
4 Now, I take it that that information was not given to you at any
5 point prior to today that there was evidence that Colonel Bojanic
6 committed suicide?
7 A. No.
8 Q. Doctor, and I understand you have to work with what you have, but
9 with this information if we look back at D1230 which is your autopsy,
10 this comment by Mr. Vrcalj is consistent with your assessment, that is,
11 of someone, in this case, probably a right-handed person putting a pistol
12 to his head and committing suicide, isn't it?
13 A. I'm not sure if we can say it was a pistol, but it was quite
14 extensive damage which would rather go against a pistol shot. More
15 likely to be a rifle, I would have thought.
16 Q. Doctor, if someone shot a .45 to the side of their head, it would
17 have significant damage, wouldn't they?
18 A. Not on the same scale I think as we found. I can't remember the
19 details, but I'd have to look up the report again.
20 Q. Do you want to go back to look at the report. You can.
21 A. Please.
22 Q. I'm sorry?
23 A. [Microphone not activated].
24 Q. Which is D1230.
25 A. If we can go on to the second page of that, please. And the
1 third -- the third page and up a bit. That's fine.
2 Well, that fracturing part suggests a high-velocity injury. Talk
3 about large defect, radiating fractures, large exit defect, fragmentation
4 to the upper part of the face, that very much suggested high velocity.
5 That doesn't mean to say that he could not have used a rifle to do it.
6 Q. That doesn't mean say he couldn't use a .45 and cause that kind
7 of damage, a .45-caliber weapon would cause extensive damage if one shot
8 oneself in the side of the head.
9 A. It would cause a hole going through, coming out the other side.
10 I'm not sure it would cause the degree of fragmentation that we've seen.
11 Q. Well, you don't have any reason to believe that this conclusion,
12 this statement, by Colonel Vrcalj is -- can be assistant with what you
13 saw at the time, isn't it, that the guy committed suicide?
14 A. It is consistent, it's not specifying which weapon was used, of
16 Q. Well, is this the type of information when you're making a
17 conclusion that someone in this instance was beat up and then in all
18 intents and purposes executed. Is this the type of information that you
19 would want to factor into the equation before you came to this
21 A. No. I mean I think the proper way of doing it is as we are
22 doing. I have given my views in the report. You're now putting various
23 scenarios to me which I am agreeing or disagreeing with. I'm quite happy
24 to do that. But if I was to look at every individual case, where do I
25 stop? How do I go about getting that information? That is not my task.
1 Q. Well?
2 A. But I'm happy to agree with scenarios put to me.
3 Q. And I guess just taking it one step further, I mean, you have
4 been here several times, here in The Hague, and the Prosecution has never
5 shown you this item on Colonel Bojanic, right?
6 A. No.
7 Q. Now let us turn our attention to a -- by the way before we go to
8 this -- let's go to this one first. And if we can bring up 65 ter 6325.
9 JUDGE ORIE: Before we continue, what are we going to do with the
10 part of the book, Mr. Kehoe?
11 MR. KEHOE: I'm sorry, Your Honour, it's in evidence already.
12 JUDGE ORIE: I hope you do not mind that I do not have all the
13 pages already in my mind which is and which is not admitted into
14 evidence. Could you give me the number.
15 MR. KEHOE: D930.
16 JUDGE ORIE: D930, and can we --
17 MR. KEHOE: Page 9 in the English.
18 JUDGE ORIE: 9 in the English.
19 MR. KEHOE: 10 in the English, 8 in the B/C/S.
20 JUDGE ORIE: Thank you.
21 MR. KEHOE:
22 Q. Doctor, this is -- this is the autopsy report that we talked
23 about just very briefly that you discussed in your report. It is a
24 woman, and it notes that there was an apparent blindfold - it's in the
25 second paragraph - made from a piece of blue cloth. There were also
1 ropes around the body or at least partly around it, a double length of
2 thick white cord around the chest and right upper arm and thicker piece
3 of rope lying free under it at the back of the chest.
4 Whether they represented true ligatures or bindings or were
5 applied to the body after death to ease of movement is very difficult to
6 say. Moving down, the only injuries present were what appeared to be
7 post-mortem fractures of the face, larynx, and most of the ribs on the
8 left side of the chest. There were no obvious bullet injuries or other
9 antemortem trauma. The general lack of findings and despite the presence
10 of the blindfold, it is not possible from this examination to say how the
11 woman died.
12 Now I take it -- this is, in fact, yours. And I will tell that
13 you this was a body according to the Prosecutor that was retrieved on the
14 22nd of September, 1995. And if I direct your attention to the --
15 MR. KEHOE: Your Honour, at this time, I would like to offer this
16 document into evidence.
17 MR. MARGETTS: Mr. President, this has already been admitted --
18 JUDGE ORIE: And it now receives then a number.
19 Mr. Registrar.
20 THE REGISTRAR: This document receives the number D1232.
21 Thank you, Your Honours.
22 JUDGE ORIE: D1232, autopsy report relating to case number
23 KN01/327 B was already admitted into evidence, and will bear that number.
24 Please proceed.
25 MR. KEHOE: Your Honour, if I can turn our attention to 65 ter
1 723. This is a two-page document concerning KN01/327. I'm sorry, I
2 think I have the wrong number here, Judge. Okay. If we can just look at
3 that document.
4 Q. That document reflects that, on the 22nd of September, 1995
5 document was retrieved from a well.
6 A. The body was retrieved from a well.
7 Q. The body was retrieved from a well. Excuse me. The body was
8 retrieved from a well. Had you seen this particular document when you
9 were doing your examination, sir?
10 A. No. I saw none of these documents.
11 MR. KEHOE: Your Honour, at this time, we'd like to offer into
12 evidence 65 ter 723.
13 MR. MARGETTS: Mr. President, we will have to check whether or
14 not that has already been admitted into evidence. I'm assured it hasn't
16 JUDGE ORIE: [Overlapping speakers] ... appears one of the
17 documents that was not tendered by the Prosecution, or is it?
18 MR. MARGETTS: It's already admitted into evidence.
19 JUDGE ORIE: Yes.
20 MR. MARGETTS: So it just needs a number. It was part of
21 Appendix A to the Prosecution's motion, so it only needs a number.
22 JUDGE ORIE: Mr. Registrar.
23 THE REGISTRAR: Your Honours, this document shall be given
24 exhibit number 1233.
25 Thank you, Your Honours.
1 JUDGE ORIE: D1233 was already admitted into evidence and is now
2 identified under this number.
3 Please proceed.
4 MR. KEHOE:
5 Q. Doctor, when you were looking at this document, did you consider
6 that this woman committed suicide?
7 A. No.
8 Q. Let's look at P320, which is a document that the Prosecution put
9 into evidence concerning a Mrs. Stegnjaic.
10 MR. KEHOE: Your Honour, if we could go into private session on
11 this. I note --
12 JUDGE ORIE: We turn into -- we turn into private session.
13 MR. KEHOE: My apologies.
14 [Private session]
11 Pages 14227-14229 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: We're back in open session, Your Honours.
25 JUDGE ORIE: Thank you, Mr. Registrar.
1 Mr. Kehoe, for you, until the end of the first session.
2 MR. KEHOE: Yes, sir.
3 JUDGE ORIE: Could I hear from other Defence counsel.
4 Mr. Kay.
5 MR. KAY: I have no questions, Your Honour.
6 JUDGE ORIE: Mr. Kuzmanovic [sic].
7 MR. MIKULICIC: I will have no more than 30 minutes.
8 JUDGE ORIE: No more than 30 minutes.
9 MR. KEHOE: If I may, Judge, I just looked at some of this, and I
10 think I will probably go into the second session. I apologise, but I
11 think I will.
12 JUDGE ORIE: Yes. But from I understand, that there is no way
13 that Mr. Clark could not be excused tomorrow. Then ... yes.
14 I didn't see you, Mr. Mikulicic, when Mr. Kehoe was standing, so
15 I apologise for addressing you as Mr. Kuzmanovic, who, apparently, is not
16 present today.
17 We will adjourn until tomorrow, Tuesday, the 13th of January,
18 quarter past 2.00 in this same Courtroom I, but not until I have
19 instructed you not to speak with anyone about the testimony, whether
20 already given or still to be given tomorrow, Mr. Clark.
21 THE WITNESS: I understand that, yes.
22 JUDGE ORIE: Yes.
23 We stand adjourned.
24 --- Whereupon the hearing adjourned at 7.08 p.m.
25 to be reconvened on Tuesday, the 13th day of
1 January, 2009, at 2.15 p.m.