Tribunal Criminal Tribunal for the Former Yugoslavia

Page 609

 1                           Tuesday, 11 November 2008

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 2.33 p.m.

 6             JUDGE POCAR:  Good afternoon, everybody.  Madam Registrar, may I

 7     ask you to call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 9     everyone in and around the courtroom.  This is case number IT-00-39-A,

10     the Prosecutor versus Momcilo Krajisnik.

11             JUDGE POCAR:  Thank you.  May I ask Mr. Krajisnik if he can hear

12     me and follow the proceedings through the translation.

13             THE APPELLANT: [Interpretation] Your Honour, I can.  Thank you.

14             JUDGE POCAR:  Thank you.  Now let me ask for the appearances

15     for --

16             THE INTERPRETER:  Microphone, Your Honour, please.

17             JUDGE POCAR:  Oh, sorry.  I understand Mr. Krajisnik's counsel

18     for JCE is not here, so for the Prosecution now.

19             MR. KREMER:  Peter Kremer and Katharina Margetts appearing as

20     counsel for the Prosecution, assisted by our case manager

21     Alma Imamovic-Ivanov.  Thank you.

22             JUDGE POCAR:  I thank you.  And for the amicus curiae, please.

23             MR. NICHOLLS:  Colin Nicholls assisted by Qunicy Whitaker.  Sorry

24     I repeat.  Colin Nicholls, assist by Qunicy Whitaker.

25             JUDGE POCAR:  I thank you.

Page 610

 1             Now, this is an evidentiary hearing on appeal in the case of the

 2     Prosecutor versus Momcilo Krajisnik.  The purpose of the hearing is to

 3     hear the testimony of Mr. Nicholas Stewart, who has been called by the

 4     appellant, Krajisnik, as a witness under Rule 115 of the Rules.  Let me

 5     briefly summarise the relevant evidence which has been admitted in this

 6     appeal, and then I will detail the order in which we will hear the

 7     witness testimony today.

 8             First in its decision of 20 August 2008, the public version of

 9     which was filed on 4 November 2008, the Appeals Chamber admitted into

10     evidence under Rule 115 two statements, Exhibits AD1 and AD2 authored by

11     George Mano and Stefan Karganovic, respectively.  Both statements concern

12     the conduct of Mr. Stewart as lead counsel during the appellant's trial.

13             In its decision of 8 October 2008, the Appeals Chamber admitted

14     seven documents presented by the Prosecution as rebuttal evidence to

15     these statements, and that is Exhibits AP1 to AP7.

16             On 4 November 2008, the Appeals Chamber heard the testimony of

17     Mr. Mano and Mr. Karganovic in relation to their previously admitted

18     statements.

19             On 6th November 2008, the Appeals Chamber admitted into evidence

20     under Rule 115 six other documents also relating to Mr. Stewart's conduct

21     as counsel at trial, and that is Exhibits AD4 to AD9.  In the same

22     decision, the Appeals Chamber ordered the appellant to contact

23     Mr. Stewart to appear before the Appeals Chamber as a witness pursuant to

24     Rule 115.

25             I would like to remind the parties and the amicus curiae that all

Page 611

 1     the exhibits admitted on appeal are under seal.  Therefore, if the

 2     parties or the amicus curiae wish to refer to these documents, they

 3     should request private session.

 4             We will proceed in the following manner this afternoon:  First,

 5     the appellant will have one hour to conduct his examination-in-chief of

 6     Mr. Stewart.  Then the amicus curiae may question Mr. Stewart for 30

 7     minutes.  After that we have a break.  The Prosecution may cross-examine

 8     the witness for one hour, followed by the re-examination of Mr. Stewart

 9     by the appellant for 20 minutes.  These times allotted to the parties are

10     approximate and may, with leave of the Chamber, be varied if necessary.

11             As usual, I wish to remind the parties that they are not obliged

12     to use all the time allocated and that the Judges may interrupt them at

13     any time to ask questions to the witness.

14             Before we call the witness, let me address one procedural issue

15     regarding the supplemental briefs the parties and amicus curiae are

16     allowed to file on any impact of Exhibits AD1 and AD2, the rebuttal

17     evidence and the viva voce evidence of Mr. Mano, Mr. Karganovic, and

18     Mr. Karadzic.  These briefs are due on 14 November 2008, and on 5

19     November 2008, the Appeals Chamber decided that they be filed in a

20     consolidated filing which shall not exceed 7.500 words.

21             In light of its decision to admit Exhibits AD4 to AD9, the

22     Appeals Chamber hereby allows the parties and the amicus curiae to

23     include arguments on any impact of these six exhibits and Mr. Stewart's

24     testimony of today in the consolidated supplemental briefs.  Also, we are

25     still -- the Appeals Chamber extends the deadline for such consolidated

Page 612

 1     filing until 18 November 2008, and expounds the word limit for this

 2     filing to a maximum of 9.000 words.

 3             That being said, I would now like to call witness

 4     Nicholas Stewart.

 5                           [The witness entered court]

 6                           WITNESS:  NICHOLAS STEWART

 7             JUDGE POCAR:  Good afternoon, Mr. Stewart.  Can you hear me?

 8             THE WITNESS:  I can.  Good afternoon, Your Honours.

 9             JUDGE POCAR:  Thank you.  Could you please read the solemn

10     declaration given to you by the usher.

11             THE WITNESS:  I solemnly declare that I will speak the truth, the

12     whole truth, and nothing but the truth.

13             JUDGE POCAR:  Thank you.  Mr. Stewart, you may now be seated.

14             THE WITNESS:  Thank you, Your Honour.

15             JUDGE POCAR:  Mr. Stewart, can you please tell the Court your

16     full name and date of birth.

17             THE WITNESS:  Nicholas John Cameron Stewart, 16th of April 1947.

18             JUDGE POCAR:  Thank you.  Can you please tell us your profession.

19             THE WITNESS:  Yes.

20             JUDGE POCAR:  And give us a brief indication of your previous and

21     present occupations.

22             THE WITNESS:  I am a practising barrister at the bar of England

23     and Wales and have been since 1972.  I was appointed Queen's Counsel in

24     1987, and since 1992 or it may be 1991, I have been a deputy High Court

25     Judge of the High Court of England and Wales, which is of course a

Page 613

 1     part-time occupation.

 2             JUDGE POCAR:  Thank you, Mr. Stewart.  You ever been summoned to

 3     testify in the appeal proceedings in the case of the Prosecutor against

 4     Momcilo Krajisnik.  As it is the appellant, Mr. Krajisnik, who has called

 5     you to testify, he will conduct the examination-in-chief.

 6             THE WITNESS:  Yes, thank you, Your Honours.

 7             JUDGE POCAR:  Sorry.

 8             THE WITNESS:  I'm so sorry.

 9             JUDGE POCAR:  Afterwards, amicus curiae may question you followed

10     the questioning by the Prosecution and finally you will be re-examined by

11     the appellant.  And please also note that the Judges may pose questions

12     to you at any time of your testimony if they so wish.

13             THE WITNESS:  Yes.  Thank you, Your Honour.  I understand.

14     That's very clear.  May I -- Your Honour, may I ask two questions?  I

15     don't want to trespass on the appellant's or anybody's time.

16             The first one, Your Honour, is this:  That of course I'm aware

17     that two witnesses gave evidence last Monday, and of course I know who

18     they are because that was -- their identities were not kept secret; but a

19     great deal of their evidence was heard in private session.  If it's not

20     impertinent of me, Your Honour, I wonder why because I want to make it

21     clear that I seek no such privacy of anything for my own part, in my own

22     interests.  I would not have wished their evidence to be in private, nor

23     do I wish any of my evidence so far as absolutely unavoidable to be in

24     private.  I would wish myself to give my evidence entirely in public and

25     have as much as possible in public but I simply register that and I'm not

Page 614

 1     sure, Your Honours, may I ask I'm not clear why such evidence was given

 2     in private if that's an appropriate question for me to ask.

 3             JUDGE POCAR:  Well, as a witness you should be asked questions

 4     more than putting questions.  In any event, most of the documents, all

 5     number of documents that have been examined by -- or used during the

 6     examination in the hearing you are mentioning were private documents, and

 7     inevitably all the references to this was to be in private session.

 8             THE WITNESS:  Yes.  Well, thank you, Your Honour.  That does

 9     answer the question then on the technical level, and Your Honours and

10     everybody understands my position.

11             Your Honour, my other question which I believe is an appropriate

12     one for a witness, because I do wish to give what help I can, is I'm very

13     unclear, and it seems to me that it may come up quite quickly where I

14     currently stand in relation to privilege as regards Mr. Krajisnik and

15     what I am and am not free to say as his former counsel.

16             JUDGE POCAR:  Well, this is a matter essentially for you to

17     decide.

18             THE WITNESS:  Well --

19             JUDGE POCAR:  Some of your -- may be covered by privilege.  You

20     should use your privilege.

21             THE WITNESS:  Your Honour, in that case if the position is that

22     there has been no change in where I always stood as far as privilege was

23     concerned in relation to Mr. Krajisnik, then until anybody directs me

24     otherwise, I shall respect that, of course.

25                           [Appeals Chamber confers]

Page 615

 1             JUDGE POCAR:  Well, yes.  I wanted to ask the appellant if -- if

 2     he believes that the witness should stick to the -- to the privilege or

 3     not, I mean, because in a way it's up to you to waive it or not.

 4             THE APPELLANT: [Interpretation] I was advised by Mr. Dershowitz

 5     and Mr. Sladojevic that I should not waive my privilege, and I am

 6     inclined to follow their advice since they are more knowledgeable on the

 7     matter than I am.

 8             JUDGE POCAR:  Thank you, Mr. Krajisnik.  We take note of that.

 9     We take note of that, and of course you will take that into account in

10     putting the questions to the witness.

11             THE WITNESS:  And, Your Honour, of course, I've noted that

12     specifically, naturally.

13             JUDGE POCAR:  Judge Meron.

14             JUDGE MERON:  Mr. President, it seems to me that the privilege

15     belongs to the appellant, not to the lawyer normally, and if

16     Mr. Krajisnik called Mr. Stewart to testify on a range of issues, on that

17     range of issues it will be my sort of assumption that Mr. Krajisnik

18     waived privilege; and the range of issues on which Mr. Krajisnik would

19     want Mr. Stewart to testify are issues of ineffective assistance and

20     unfair trial.  So it seems to me that Mr. Krajisnik cannot have it both

21     ways.

22             THE APPELLANT: [Interpretation] My apologies.  Can I take the

23     floor?

24             JUDGE POCAR:  Yes, sure.

25             THE APPELLANT: [Interpretation] I was now advised by

Page 616

 1     Mr. Sladojevic that the examination should go ahead and that if we should

 2     come at a stage where this right could be infringed, we will definitely

 3     make a decision on that matter.  For the sake of respecting both the

 4     confidentiality and the privilege and the interest of the public, I will

 5     make a decision; but I would not wish to make it an obstacle to

 6     substantive testimony of Mr. Stewart.

 7             JUDGE POCAR:  I thank you.  That's why I was saying earlier that

 8     you should -- or you will take into account how far you want to waive in

 9     putting the questions.  But it is clear that if you put a question, the

10     witness will answer the question, because it's obvious if you ask it's

11     unavoidable that you are seeking an answer to the question you put.

12             So can we agree on that?  In that case, I give the floor to

13     Mr. Krajisnik for the examination-in-chief.  You have the floor,

14     Mr. Krajisnik.

15                           Examination by Mr. Krajisnik:

16        Q.   [Interpretation] Good afternoon, Mr. Stewart.

17        A.   Good afternoon, Mr. Krajisnik.

18        Q.   Since I was caution by the Chamber that reference to -- to the

19     documents calls for private session, I would therefore ask Their Honours

20     to go into public [as interpreted] session for a short while because I

21     will be referring to certain documents under seal.

22        A.   You mean private session?

23             THE INTERPRETER:  Private session, interpreter's correction.

24             JUDGE POCAR:  So, Madam Registrar, can we go into private

25     session.

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11                           [Open session]

12             THE REGISTRAR:  Your Honours, we're back in open session.

13             MR. KRAJISNIK: [Interpretation]

14        Q.   In the beginning of my examination, I would like to briefly refer

15     to the start of trial and the witnesses who were called at the time.  If

16     you remember, among others Madam Plavsic and Mr. Djeric were called.

17     This is my question:  Do you believe that the Trial Chamber allowed

18     enough time, and that it was a fair amount of time for the examination of

19     these witnesses?

20        A.   Well, Your Honours, Mr. Krajisnik said he briefly referred to the

21     start of the trial.  I don't think there's any dispute that Mrs. Plavsic

22     and Mr. Djeric were actually called right towards the very end of the --

23     of the trial hearing, but with that qualification.

24             No, Mr. Krajisnik, I don't believe the Trial Chamber allowed

25     enough time and that it was a fair amount of time.  When one considers

Page 620

 1     the amount of time which had been given to a number of other witnesses in

 2     the course of the trial and the very short allocation of time for these

 3     witnesses who certainly would have been expected, especially in the case

 4     of Mrs. Plavsic, to have far greater direct knowledge of the events with

 5     which the trial was concerned than many of those other witnesses, it

 6     seemed at the time to -- well, me and my co-counsel, there's no question

 7     about that, it seemed to us that it was really almost absurdly short

 8     amount of time to allocate for these witnesses, especially Mrs. Plavsic.

 9        Q.   Does this mean that you did not have an appropriate amount of

10     time for the examination of Madam Plavsic?

11        A.   Well, there are two points really, Mr. Krajisnik.  Of course,

12     knowing that we had a very short allocation of time, we naturally

13     tailored what examination we were going to conduct to that time and

14     didn't work out the cross-examination we would have gone in for it, we

15     had had far longer time.  But within the confines of what we were

16     allocated and what we did attempt to cover, we will -- and,

17     Mr. Krajisnik, I don't have detailed recollection of it, I believe the

18     transcript itself will show that we felt ourselves to be cut off in the

19     particular areas that we were wanting to pursue, especially in relation

20     to, again without recall the details, Your Honours, extracts from

21     Mrs. Plavsic's book.

22        Q.   As for Mrs. Plavsic's book, the title of the book is, "I

23     Testify."  Was the book fully translated before you commenced the

24     examination -- or, rather, before Mrs. Plavsic took the stand?

25        A.   I don't believe it was, Mr. Krajisnik.  My recollection, so far

Page 621

 1     as it goes, is no.

 2        Q.   Mr. Stewart, do you recall in what manner the Trial Chamber

 3     during their examination of Mrs. Plavsic or to what extent they relied on

 4     her book and how certain paragraphs or excerpts from the book were

 5     selected?

 6        A.   Mr. Krajisnik, Your Honours, I do not recall this in detail, but

 7     interviews had been conducted with Mrs. Plavsic in Sweden by an officer

 8     from the Trial Chamber.  I don't remember how far if at all the extracts

 9     of the book were particular content of those interviews which we were

10     supplied with.  I do just remember that it was what appeared to be a

11     limited and, if you like, highly selective choice of specific points in

12     Mrs. Plavsic's book.  But I think just -- so your question is to what

13     extent they relied.  I -- from my recollection, but the transcript would

14     show it, wouldn't it, I believe it was the Trial Chamber, she was a

15     Chamber witness; it was the Trial Chamber who in effect relied upon those

16     extracts.  I think they took the initiative in -- in adducing that

17     evidence as far as I recall.

18        Q.   Mr. Stewart, were you able to cross-examine Mrs. Plavsic in a

19     satisfactory manner, particularly on the issue of her book entitled --

20     entitled "I Testify"?

21        A.   Mr. Krajisnik, no I wasn't.  I thought the whole exercise was

22     unsatisfactory.  There wasn't any -- it wasn't a serious opportunity for

23     Mrs. Plavsic to be seriously examined I think either by the Prosecution

24     or by the Defence as it happened, but so far as her -- the extracts from

25     her book were concern, what I do -- what I do remember is that we were --

Page 622

 1     I think I've said we were rather cut off in trying to deal with this, and

 2     probably in trying to put the extracts from her book in context.  But I

 3     rather think this would all be very clear from the transcript and there's

 4     nothing I could add to it.  I don't believe I would have any recollection

 5     of that which would go beyond what's there on the transcript.

 6        Q.   Do you remember, Mr. Stewart, that I wanted to examine

 7     Mrs. Plavsic, and you will recall that I was prevented from

 8     cross-examining her?

 9        A.   I do remember that, Mr. Krajisnik.  And, Your Honours, I should

10     say that this is the -- this is the one very limited piece of the

11     transcript in relation to Mrs. Plavsic's evidence which I have reviewed;

12     and I have reviewed it actually in the course of today because it was --

13     I don't think it would be any secret, Mr. Krajisnik.  You and your team

14     sent it to me to review.  It's a quite short passage.  But Mr. Krajisnik

15     and Your Honours, I remember it very well, yes.  It refreshed my memory,

16     but I do have a very distinct memory.  We made a submission which again

17     is on the transcript.  Our submission was that you were very peremptorily

18     and unjustifiably cut off by Judge Orie from examining Mrs. Plavsic.

19     And, Mr. Krajisnik, we know I say that as someone who wasn't a huge fan

20     of your cross-examining our witnesses or any witnesses.

21        Q.   Thank you.  Now I want to go back to the pre-trial period when

22     you were appointed my counsel.  When taking over the case, were you

23     familiar with who had been my counsel before you?  Can you tell us his

24     name if you remember it?

25        A.   Oh, yes.  I remember that perfectly well.  Your Honours, that was

Page 623

 1     Mr. Brashich, Mr. Dan Brashich.  I was told that straight away by the

 2     Registry.

 3        Q.   Do you know or do you remember how long Mr. Brashich had been

 4     working on my case?

 5        A.   Yes, Mr. Krajisnik.  He'd been our case for -- well, some years.

 6     Two years, three years, four years maybe, but it was certainly a long

 7     time.  You were arrested and brought here in April 2000; and as far as I

 8     recall, Mr. Brashich became your counsel quite soon after that.  I don't

 9     remember exactly when, but not long after that, as far as I know.

10        Q.   Mr. Stewart, when you were taking over the case, did you expect

11     to receive from Mr. Brashich a work product which would make it possible

12     for you to put up a proper defence?

13        A.   Well, yes.  What I was told by the -- the Registry, and of course

14     it was true as far as it went, was that the trial had been due to begin I

15     think it was on the 14th of May, but I don't think the exact date

16     matters, that's a matter of record; but the trial had been due to begin

17     on the 14th of May, and sometime toward the end of April it had come to

18     light that Mr. Brashich either had been or was about to be disciplined

19     and, in fact, then was disciplined and suspended from practice for a year

20     and had to be taken off this case, but what I -- what I understood at the

21     beginning was that -- well, just that, really, that the case had been two

22     weeks away from trial in the hands of counsel who had been in the case

23     for a long period, and whatever his deficiencies or defects which had led

24     to him being suspended by the New York Bar, at that point I just assumed

25     that the trial was -- I beg your pardon, your case was at the appropriate

Page 624

 1     stage of preparation in the hands of your previous counsel for something

 2     that was due to start in two weeks', three weeks', four weeks' time.  I

 3     became disabused of that eventually, but when I started that's what I

 4     understood.

 5             So, yes, I would have expected to receive a lot of materials

 6     useful for a trial from previous counsel.

 7        Q.   Can you tell Their Honours what material you did receive?  Did

 8     you receive what you expected to receive from Mr. Brashich?

 9        A.   No, I didn't.  Mr. Brashich came here.  It was arranged that he

10     and I and my co-counsel being whom I'd brought into the case -- just

11     brought into the case at that stage, Ms. Loukas from Australia; we met

12     here for a week in August 2003, August 2003, and of course we came to see

13     you, Mr. Krajisnik, as well.  Mr. Brashich was supposed to bring papers,

14     in fact that's one of the main purposes of his trip.  The Registry paid

15     for him to come.  He was supposed to bring all the papers with him, and

16     he didn't.  He didn't bring anything apart from a few scraps of papers

17     here and there.

18             I eventually got papers out of him some two, three months later

19     something like that, and it -- roughly speaking, it was 13 large packing

20     cases of material from Mr. Brashich and 53 I think it was smaller boxes

21     of papers from his co-counsel or one of his co-counsel Mr. Kostic came

22     late autumn, something like that, after quite a struggle, and, no, it was

23     in a -- it was a vast amount of material in a barely organised state.  It

24     was not at all what I had expected to receive when I started.

25        Q.   Mr. Stewart, were you able to get an overview of what was in that

Page 625

 1     documentation, because when embarking upon a case you have to know what

 2     is there so that you can organise your defence.

 3        A.   Yes.  I think what had clearly happened, and a certain amount of

 4     surmise here, Your Honours, because Mr. Brashich had been extremely

 5     resistant to sending these papers for quite a while and made some

 6     reference to needing some time and some help from his secretary.  I think

 7     he had done some fairly hurried organisation.  That was the impression I

 8     got of this material.  So it was in sections.  I was able in make -- I

 9     was able to make a list.  I was able to make a schedule by broad category

10     headings, but within those categories, and maybe there were 20 or 30 in

11     each packing case, I wouldn't know precisely, Your Honours, but within

12     each category it was pretty disorganised then.

13             I also received, by the way, a fairly large number of CDs from

14     Mr. Brashich and some old-fashioned floppies as well.  Some of them had a

15     few files on them.  Some of them had a hundred files on.  Some of them, I

16     think, had a thousand or more files on them, but you had to go into the

17     files and open them to find out what they were.

18        Q.   Mr. Stewart, when you took over my case did you have a number of

19     cases, ongoing cases, in London which you had to complete?

20        A.   Yes, I had some work.  I'm a practising barrister.  Of course

21     I -- well, I'm happy to say I didn't have no work, so -- so, yes, I did.

22     And -- and naturally that was a point of discussion with the Registry.

23     I -- it was -- of course I had to organise my work and wrap up what I

24     could wrap up, release myself sufficiently to be able to do your case,

25     yes.  Although like, I would guess anybody, really, of course I wasn't

Page 626

 1     able to close down every single bit of work I was doing; and I had

 2     obligations to -- obligations to clients.

 3             JUDGE POCAR:  May I interrupt you a moment.  Judge Meron, you

 4     wanted to put a question now?

 5             JUDGE MERON:  Yes, thank you, Mr. President.

 6             Mr. Stewart, you spoke of the problems arising from the fact in

 7     Mr. Brashich did not in fact hand over to you a significant work product.

 8             THE WITNESS:  Yes, Your Honour.

 9             JUDGE MERON:  And that you received all those boxes.

10             THE WITNESS:  Mm-hmm.

11             JUDGE MERON:  Now, there was very little time at that time, and

12     the amicus in his -- the redacted and public version of his brief pointed

13     out to the fact that you chose not to seek a delay of the commencement of

14     the trial.  If that is correct, can you explain to the Bench the reasons

15     for the decision not to ask for a delay?

16             THE WITNESS:  Well, Your Honour --

17             JUDGE MERON:  In retrospect what effect do you think that had on

18     your ability to provide Mr. Krajisnik with a full and adequate defence?

19             THE WITNESS:  Well, Your Honour, the simple point is that it is

20     just not correct to say I did not seek a delay of the commencement of the

21     trial.  I struggled as hard as I could and fought as hard as I could to

22     seek a commencement of the trial.  What I didn't do, and I think this is

23     very significant in the whole history of this, we didn't make a formal

24     application to adjourn the trial because we had a number of meetings, I

25     wouldn't know exactly how many again, but we had meetings with the senior

Page 627

 1     trial officer, that was Mr. Harhoff at the time, of course Judge Harhoff

 2     now, we had meetings with Judge Orie.  It was usually with Judge Orie

 3     alone, as far as I remember, rather than with all three Judges, and these

 4     matters were vigorously ventilated, and we -- I made it very clear to --

 5     certainly to Mr. Harhoff, I made it clear to him in absolute penny

 6     numbers the position we were in and the state we were in; and I made that

 7     very clear to Judge Orie.  But the bottom line is that we were trying to

 8     negotiate, and that continued for quite a long while, really, as a way of

 9     dealing with it; but I, at one point in the discussions, I absolutely,

10     and this I remember verbatim, Judge Orie just said to me in one of these

11     meetings, "Mr. Stewart, this trial will start on the 3rd of February."

12     Or the 4th, perhaps it was.  Whatever the Monday was.  And then that was

13     it, "It will start."  And actually, Your Honours, I believed him.  It was

14     very clear to me that Judge Orie meant that.

15             JUDGE MERON:  And what significance did this all have on the

16     adequacy of the defence?

17             THE WITNESS:  Well, Your Honours, what happened again, and this

18     obviously dictated our approach as to whether we made a formal

19     application, the trial didn't start -- I think it was the 4th actually,

20     but the trial didn't start on the 4th of February and then just crack on

21     five days a week.  The discussions -- Judge Orie offered us a schedule

22     where we were to have I think it was 18, again I'm speaking from memory

23     and Your Honours will appreciate this is a few years ago; and I haven't

24     read up on all this, but we were offered I think 18 days with some

25     flexibility as to how we would structure that, whether we would have six

Page 628

 1     weeks at three days or so on, so many weeks at four days and so on.  We

 2     were offered flexibility on that on the understanding that when we had

 3     got those 18 days, I think it was, out of the way there would then be an

 4     adjournment; and it was until after Easter, which is around the 10th or

 5     the 11th of April.

 6             And although it was very difficult, in the light of what

 7     Judge Orie had said, "This trial will start," and in light of what he had

 8     offered us, I considered that an application for a more extensive

 9     adjournment at that point would be pretty much futile, as it happens.

10     And I did think that we could cope anyway, and it would be of some value

11     to us, actually, in getting to an unfamiliar Tribunal and getting to know

12     the ropes and getting the feel.

13             The understanding was that crime base witnesses would be produced

14     at that point that ought to be manageable.

15             The only thing that did happen in particular in those 18 days

16     which made things rather more difficult was the calling Mr. Deronjic, but

17     we did oppose that.  We did resist that, unsuccessfully, but we did

18     object to that.  That was a different matter.  Of course that was all

19     connected with Mr. Deronjic facing his sentencing hearing and it became

20     we thought slightly unsatisfactory.  Judge Orie was also the Presiding

21     Judge of the Chamber dealing with Mr. Deronjic's sentencing hearing.  So

22     we -- we -- there was quite a lot of discussion about the order of

23     events, the Defence.  We wanted Mr. Deronjic sentenced before he gave

24     evidence.  It was clear the Trial Chamber wanted it the other way around.

25     We lost that particular skirmish about Mr. Deronjic's evidence.

Page 629

 1             JUDGE POCAR:  May I put you one question, Mr. Stewart.  You said

 2     that you had these meetings essentially only with Judge Orie.  At the

 3     same time you said also you considered a formal application for

 4     adjournment or for delay in starting the trial would have been futile in

 5     light of the strong, firm position of Judge Orie.  Didn't it jump to your

 6     mind that perhaps a formal application would have involved the other two

 7     Judges on the Bench, and they may have had a different opinion?

 8             THE WITNESS:  Well, Your Honour, of course it crossed me mind but

 9     it didn't alter my conclusion, no.  Throughout this case and I don't mean

10     any disrespect to the other Judges, of course, there was a change of

11     Judge as well; but throughout this case it was very clear and Mr. Harhoff

12     is a very experienced senior trial officer of course was literally

13     metaphorically sitting at Judge Orie's elbow, it was very clear to us

14     that Judge Orie was effectively running that side of things.  Or if it

15     wasn't a fact, that was our judgement.

16             JUDGE POCAR:  Okay.  Thank you.  I take note of your judgement.

17             Judge Guney, you wanted to ask something at this point.  Please.

18             JUDGE GUNEY:  Mr. Stewart, an additional question to the question

19     of Judge Meron.  Considering that you were assigned as lead counsel to

20     the defence of Mr. Krajisnik on the 30 July 2003 and that you received

21     the case matter in a disorderly state and with delay from the former

22     counsel, Mr. Brashich, would you and could you say that you were enough

23     prepared to start the trial of Mr. Krajisnik on the 3rd February 2004?

24             THE WITNESS:  Well, Your Honours, no, we weren't in the sense

25     that it -- we felt, in fairness, the trial -- the whole trial should not

Page 630

 1     have been started as soon as that; but we had made our representations,

 2     and subject to what I've said about Mr. Deronjic, I will say, Your

 3     Honours, that it was not actually at that point of the trial in February

 4     that we found ourselves significantly hampered.  Those witnesses that --

 5     apart from Mr. Deronjic, those witnesses that we dealt with in that first

 6     run of evidence over that 18-day period or whenever it was, were, we felt

 7     at the time with hard work and difficulty, were manageable.

 8             And again our consideration as to whether to keep fighting

 9     further and whether to make a formal application for an adjournment had

10     to be viewed in the light of the fact that it was -- and I don't mean

11     this in any disparaging way, Your Honours, but it was quite a -- it was

12     quite a clever, well-thought-out offer that the Trial Chamber were giving

13     us to have this -- just this early chunk of a limited number of days with

14     our being offered some flexibility as to what the sitting pattern would

15     be with then some adjournment.  Because actually one effect of it was

16     that Mr. Treanor gave his evidence-in-chief during that first batch of

17     days, so his evidence-in-chief was concluded I think by the end of

18     February 2004; but I didn't have to cross-examine him then until

19     immediately after Easter, which was something like the 10th or the 11th.

20     And although heaven knows, Mr. Treanor's report was vast and detailed and

21     thorough and was an enormous challenge for us to get to grips with.  I

22     cross-examined Mr. Treanor; it was of course a help and an advantage to

23     us to have had his evidence-in-chief some weeks before we had to

24     cross-examine him.

25             But those are always considerations came into play and others of

Page 631

 1     course in considering whether in the light of this absolutely clear

 2     indication from Judge Orie whether there was any value in going the --

 3     the formal convetive application route as opposed to continuing what I

 4     would call, if you like, the negotiation mode, which did in fact continue

 5     for quite some time over the first few months of the trial.

 6             We were not negotiating, we felt, with a very strong hand in the

 7     face of -- when I say that these matters -- by the way it occurs to me

 8     were run, if that was the phrase I used by Judge Orie, I'm talking as far

 9     as the Trial Chamber is concerned, because we always had the very

10     distinct impression that, that such questions as when this trial would

11     start had an input and an influence and had pressures from beyond the

12     Trial Chamber itself.  That -- that seemed to us in all our conversations

13     to be transparently obvious.

14             I'm talking about New York.  In loose terms I'm talking about

15     New York, but perhaps I'm just using that as a label or metaphor for this

16     institution in the light of the -- what turns out to have been the fairly

17     appalling history of this case from the year 2000 through to 2003 and

18     2004.

19             JUDGE POCAR:  Yes, Judge Meron.

20             JUDGE MERON:  Thank you, President.

21             Mr. Stewart, you brought, I believe, a motion on the 22nd of

22     February, 2005.

23             THE WITNESS:  Yes.

24             JUDGE MERON:  Seeking an adjournment of the trial until the month

25     of August of 2005.  You wrote that you -- the current counsel, you

Page 632

 1     described yourself as, that you had not read more than "15 per cent of

 2     the overall documents."

 3             THE WITNESS:  Is that -- Your Honour, may I be clear?  I'm not --

 4     of course, Your Honours, I'm not -- I'm not disputing that.  I just want

 5     to be clear.  We had -- we had brought a motion seeking an adjournment in

 6     July 2004.  So Your Honour is now talking specifically about the second

 7     application.

 8             JUDGE MERON:  Yes.

 9             THE WITNESS:  Yes, I just wanted to be clear about that, Your

10     Honour, thank you.

11             JUDGE MERON:  You wrote that you by then you had not read more

12     than 15 per cent of the overall documents in the case, and during the

13     oral arguments on the 28th of February, 2005, your co-counsel,

14     Mrs. Loukas, complained that there was an "inadequately developed defence

15     strategy."

16             Here is my question first:  Could you please tell us if you were

17     ever able to complete your review and analysis of the relevant material?

18             THE WITNESS:  Well, no, we weren't.  We weren't, Your Honour.

19     We -- we never did.  It -- it -- we were never able to read all the

20     papers, but on the other hand nor would I, of course, realistically

21     suggest that any sensible lead counsel in any sensible conduct of any

22     case would read a hundred per cent of the papers.  After all heaven knows

23     what if there is such thing as delegation apart from anything else and

24     common sense sifting.

25             So far as defence strategy --

Page 633

 1             JUDGE MERON:  So before that would you say that this did not

 2     present a real problem that you did not cover more of the material in

 3     terms of efficacy of the defence.

 4             THE WITNESS:  No, I'm not saying that, Your Honours.  With

 5     respect, that would be going too far the other way.  For example, I had

 6     a -- I had a conversation with -- well, it was a semi-formal

 7     conversation.  It wasn't a casual conversation on the balcony and so on

 8     but we, I think, had a conversation with Judge Harhoff, one of many

 9     meetings with him had, Mr. Harhoff as he was then, in which he would say

10     and correctly he'd say, "Well of course there's all this paper, but we

11     all know that when you have this sort of paper 60 per cent of it is

12     completely irrelevant. "

13             Well, I would say:  "Well, yes, Fred, I agree with that but if

14     you could kindly tell me which 60 per cent that would help us enormously

15     and then we could simply concentrate on the other 40 per cent."  I don't

16     mean that in a flippant, jocular way.  That to some extent was a real

17     problem.  Of course, one is able to identify with luck quite quickly

18     stuff which is not really going to help, but it remained a problem, Your

19     Honour, because we would never know - I don't want to sound like a

20     particular politician - but we would never know what we didn't know.

21     That's the difficulty.

22             JUDGE MERON:  And on the comment by Mrs. Loukas about the

23     inadequate defence strategy.

24             THE WITNESS:  Yes, I -- I wouldn't -- [B/C/S on English channel]

25     sorry.  Something happened.  Never mind may I pick that up.  I wouldn't

Page 634

 1     myself stress that too much as a difficulty.  The -- the broad lines of

 2     strategy in order to know what you were trying to do when you were

 3     cross-examining Prosecution witnesses were pretty clear, and I wouldn't

 4     whatever priorities I had set myself, I certainly wouldn't have entered

 5     into -- embarked upon cross-examination of Prosecution witnesses without

 6     at least working out what I was trying to achieve even if I had

 7     difficulties in being confident that I and my co-counsel were -- were

 8     able to lay our hands on all that might be relevant to help us achieve

 9     it.

10             JUDGE MERON:  Thank you, Mr. Stewart.

11             JUDGE POCAR:  Well, Mr. Krajisnik, may I ask you to continue your

12     examination.

13             MR. KRAJISNIK: [Interpretation]

14        Q.   Mr. Stewart, now I would like to ask you to explore the topic of

15     the time that the Defence had at its disposal during the trial, little

16     time, lots of material.  And now let me remind you of your motion of the

17     14th of July, 2004, where you state in paragraph 14 -- now you're talking

18     about a lack of time that Their Honours have been asking you about, and

19     you stress this problem that existed both before the trial began --

20        A.   Yes.  You are talking -- Your Honours, Mr. Krajisnik, you're

21     talking about the first application we made for a substantial

22     adjournment, aren't you?

23        Q.   Let me quote from this motion and then I will ask your comment.

24     Two quotes.  On the 14th of July, 2004, you said:

25             "We are sure that the materials that the Prosecution has

Page 635

 1     disclosed to us without the material under Rule 68 goes beyond 500.000

 2     pages.  What we know is this is voluminous material and we have been

 3     unable to examine the material let alone read it."

 4             In paragraph 15 of the same motion you say:

 5             "We have been unable to read and take into account in an

 6     appropriate manner all the materials pertaining to the witnesses who have

 7     already been cross-examined.  We have often been presented with too much

 8     material and too little time.  We will never be able to do that before

 9     the Prosecution case ends, and it will be too late at that stage."

10             So my question to you is:  Is this what you mean, and do you

11     agree with me that the Defence team by July 2004 had not had enough time

12     to prepare for trial?

13        A.   Mr. Krajisnik, what -- what -- what was said in -- in the

14     paragraphs of the motion that you -- you quote was true.  Now, in my

15     tradition, of course, we make submissions as counsel.  It doesn't mean

16     that we will personally believe them.  That's a different issue

17     altogether.  But of course when we're saying where we are in relation to

18     our own preparation and our own handling of material, of course we are

19     telling the Court our view, and we are telling the Court honestly where

20     we stand, and that's what we were doing.  So that was correct,

21     Mr. Krajisnik, yes.  We wouldn't have said it otherwise.

22        Q.   Thank you very much.  Only the 16th of July, 2004, at page 4478

23     of the transcript you stated the following:

24             "We simply cannot do everything.  When we set our priorities from

25     among six basic jobs, and we can only do two.  We have come to the

Page 636

 1     conclusion that we cannot defend Mr. Krajisnik in an appropriate manner.

 2     He knows it too.  We know it too."

 3             And on the same day, the 16th of July, 2004, at page 4485 and

 4     4486 of the transcript, you said in Court commenting on the huge pile of

 5     documents and the lack of time for the preparation, this is what you

 6     said:

 7             "I should not have underestimated this problem for such a long

 8     time, and I should not have ignored the problem as I have been doing at

 9     times.  I should have warned the Trial Chamber promptly, and I wish I had

10     done that, but I'm doing it now.  We need time."

11             Now, my question to you is this:  Before this date did you warn

12     the Trial Chamber that you did not have enough time and that there was

13     voluminous material that you had to go through in order to be able to

14     defend me as well as possible?

15        A.   On numerous occasions, Mr. Krajisnik.  I wouldn't even know how

16     many.  The -- that message was conveyed loud and clear and had been for

17     months and months and months, almost on every opportunity we had.  It was

18     certainly conveyed to Mr. Harhoff constantly.  And really at any

19     opportunity that we had, we reiterated it.  Yes, that was loud and clear.

20        Q.   Thank you very much.  On the 29th of October, 2004, at page 7668

21     of the transcript you state the following:

22             "The problem is only exacerbated.  We're at the breaking point as

23     far as the Defence is concerned, because this team has been unable to

24     manage no matter what it looked like on the surface.  We could not have

25     managed this trial efficiently up to now."

Page 637

 1             Do you agree that in October 2004 the situation did not improve?

 2     By October 2004 the Defence team did not have enough time to prepare for

 3     the trial.

 4        A.   What happened, Mr. Krajisnik, I'm not attempting to sidestep your

 5     question at all, but I think that there are several points as there would

 6     be in a long trial which are critical, if you like.  They're watershed

 7     points, and there was one in the summer of 2004 which led to that

 8     application, and it's to do with what I referred to earlier, which is, if

 9     you like, the negotiation mode of trying to achieve a manageable trial

10     schedule and then moving to a different approach.

11             We -- we had an extensive discussion with Judge Orie, and the

12     Prosecution were there as well, of course, in one of these formal

13     meetings, I suppose it was a 65 ter whether it was or it wasn't, it was

14     in one of these rooms it was a formal meeting around the table to do with

15     the exercise of attempting to achieve significant agreement of facts, and

16     Judge Orie was prepared to give us weeks -- weeks possibly extending into

17     months in return for our pledging to really try to have a significant

18     batch of agreed facts with the Prosecution.

19             Now, when I say negotiation mode, I rather mean that, Your

20     Honours, because the language that Judge Orie used in these meetings was,

21     "If you have such-and-such," and I mean this message being conveyed by us

22     loud and clear about where we were and what we needed, Judge Orie would

23     say and I remember this distinctly, "If we give you such-and-such, then

24     it is going to cost me or cost us X days or X weeks."  And I do remember.

25     I don't believe it was disrespectful, it certainly wasn't intended to be,

Page 638

 1     but we had fairly punchy exchanges in these meetings.  I remember saying

 2     to Judge Orie, "Well, Judge, you know, with respect you sound like a

 3     banker," which was frankly less a tell of abuse than it might be now, but

 4     that was -- that was the way I put it, and it was true, really.  It

 5     was -- now, of course I respect -- I sit as a Judge myself sometimes

 6     although I don't really have to manage that sort of problem, but of

 7     course you Judges with respect, of course, have the job of trying to make

 8     sure the case moves along.  I understood that.  You don't have

 9     inexhaustible resources, but that -- that trade-off was where we were.

10             But what happened, and I put this in a nutshell now.  We sweated

11     blood to try to achieve that agreed facts.  No doubt, Mr. Mano has told

12     you all about it, but we sweated blood to try to agree facts.  I had to

13     push and drag a very reluctant team along on that at some point, but I

14     saw it as my job to deliver if I possibly could what I had assured

15     Judge Orie I would deliver, but in the end one weekend I thought very

16     hard about where we were and how the Prosecution had far greater

17     resources and far greater knowledge of what we were talking about; and my

18     anxieties that we were letting ourselves drift into facts that it was not

19     safe to agree because it was all provisional up to that point after all

20     all these discussions about agreed facts, and I came to the conclusion

21     one weekend that it was not in your interests, Mr. Krajisnik, to continue

22     with this exercise.  And I didn't believe I was in breach of duty to the

23     Trial Chamber, because my duty to the Trial Chamber was to try and do my

24     damnedest, which I did.  Having done that I decided it was in your

25     interest to pull the plug, which I did.  Judge Orie was furious.  He was

Page 639

 1     absolutely furious.  That was completely clear.

 2             Subsequent discussions I had with Judge Harhoff and we

 3     immediately switched back to what was going to be full trial mode then.

 4     Adjournment came to an end.  Time came to an end.  It was clear -- the

 5     recess was coming up of course, but it was clear we were going to crack

 6     on with this trial.  At some point I said to Judge -- Mr. Harhoff I said

 7     seems to me that Judge Orie, that we are being punished now for the

 8     failure to reach the agreed and Mr. Harhoff agreed that we were being

 9     punished.  Now, we, Mr. Krajisnik, you were being punished.  I'm' just

10     your counsel.  It made it very hard work for us, but we did

11     conscientiously try, but what I do think in this trial.  I think it

12     affected the dynamics significantly and it's referred to in one of these

13     documents.  I'm not used to being trusted by the Trial Chamber.  I'm used

14     to in 30-odd years to be completely trusted by Judges.  They may think

15     I'm incompetent, they may think I've got things, but I'm used to having

16     my word accepted; and I'm used to it being understood that when I say

17     I've done my best, I have done my best.  That was not accepted.  That was

18     not believed by Judge Orie.  It was quite clear that that was never

19     accepted again, so we moved to this full-on mode in the trial.  We

20     abandoned not completely forever but we abandoned the negotiation mode.

21     We had to launch that motion immediately for an application for

22     adjournment.  Didn't get us very far, did it?  Let's look at -- let's

23     look at what we might or might not have achieved by applications, it got

24     us nowhere nor did the next one; and this team then quickly, the Defence

25     team quickly became exhausted and when we reconvened after the recess I'm

Page 640

 1     afraid this team as a whole did not have the resources and the capacity

 2     and the energy to cope with the timetable and we were -- I'm going to

 3     make this the end of my answer now, we were saved paradoxically

 4     immediately in the short term by Judge El Mahdi leaving the case.

 5             If Judge El Mahdi had not left the case when he did in December,

 6     the Defence team would not have made it through to Christmas.  There

 7     would have been a physical collapse of the Defence team.  We were saved

 8     from that physical collapse by that accident that Judge El Mahdi leaving

 9     the case and being replaced then by Judge Hanoteau.  Judge Hanoteau of

10     course we were going to restart when Judge Hanoteau certified that he

11     read the papers.  The extraordinary thing about that being that the date

12     when we were going to reconvene for the trial was given to us before they

13     even knew which Judge had been appointed to replace Judge El Mahdi and

14     struck us as extraordinary that we were told when the trial restart, when

15     the un-known Judge had not yet been assigned was certified.

16        Q.   Mr. Stewart, with full respect I would like to ask you since we

17     don't have enough time thank you very much for your answer which was

18     really comprehensive; and I'm sure quite useful now I would like to ask

19     you a couple of questions on the same topic.

20             JUDGE POCAR:  Judge Guney would like to put a question on this

21     point.

22             JUDGE GUNEY:  Mr. Stewart, both appellant and the amicus allege

23     that both as a former counsel you provided ineffective assistance during

24     the pre-trial and trial period resulting in a denial of the appellant's

25     right to fair trial or alternatively rendering the judgement unreliable.

Page 641

 1             In the light of the event, if we want to classify it, the

 2     assistance that you received, how do you qualify it better assistance?

 3     For example, excellent treatment, special treatment ordinary fair

 4     treatment, or better than average?  Would you please give me your

 5     preference if possible?  Thank you.

 6             THE WITNESS:  I'm sorry, Your Honour, I -- it's me I am sure.

 7     I'd just like to be clear.  Are you asking me to classify the Trial

 8     Chamber's treatment of us in relation to right to a fair trial, or are

 9     you asking me to assess my own effectiveness as Mr. Krajisnik's counsel

10     or both?  I'm sorry, Your Honour, I'm just not clear enough about the

11     question.  It's obviously important, and I will answer it, by just want

12     to be very clear what it is.

13             JUDGE GUNEY: [Interpretation] Maybe both.

14             THE WITNESS:  On a scale -- the Trial Chamber's -- what the Trial

15     Chamber offered to Mr. Krajisnik by way of a fair trial on a scale of 1

16     to 10, 1 being completely shocking show trial, et cetera, et cetera,

17     verdict arranged in advance to 10 being impeccable, wonderful, absolutely

18     unsullied, immaculate fairness, 3 or 4.

19             The second question others to judge, Your Honours.  I did my

20     best, and I believe I did my professional best in what actually turned

21     out to be rather more difficult circumstances than I could have ever

22     anticipated, Your Honour, but I'm not the judge.

23             JUDGE GUNEY:  Thank you, Mr. Stewart.

24             JUDGE POCAR:  Yes, Mr. Krajisnik.

25             MR. KRAJISNIK: [Interpretation]

Page 642

 1        Q.   Let me remind you of some of your motions or submissions that are

 2     quoted in the transcript, and I will quote from one of them.  You

 3     addressed -- in fact, it's from the trial transcript of the 26th of

 4     November, 2004 at pages 8907, 8910.  You said that you felt unhappy, that

 5     you were ashamed because you were unable to go through all the materials.

 6             On the 28th of February, 2005, at 95989599 of the transcript, you

 7     say hundreds of documents are disorganised material and additionally

 8     there are dozens and dozens and dozens and dozens of thousands of pages

 9     of documents that I have not read for the most part.  I don't even know

10     what they're all about.  If I open a CD, I see thousands of files, and

11     there's no way I can find my way around them.  It is absolutely

12     impossible.  This is a hopeless situation.

13             On the 28th of September, 2005, at 17167 you state, "We have been

14     struggling to get the minimum done."

15             And now what I would really like to stress, on the 27th of

16     October, 2005, at 17883 and 17884, you say the following in court:

17             "I have constantly been raising these issues, and the Trial

18     Chamber have been ignoring them as if this is not part of the real world.

19     You are not interested in the things that affect the Defence in the

20     proper way and this has been your position throughout this trial.  As a

21     result --"

22             JUDGE POCAR:  Mr. Krajisnik, can you come to the question you

23     want to put to the witness.

24             MR. KRAJISNIK: [Interpretation]

25        Q.   My question is in the course of 2004 and 2005, did you have

Page 643

 1     enough time to prepare proper defence?

 2        A.   We were always just running to try to -- what's the metaphor?  We

 3     were running to try to stay standing, really, in a way.  That was -- that

 4     was what it was.  I -- I -- we --

 5        Q.   Can you give us your evaluation of your methods of preparation?

 6     Were you able to prepare properly, because on more than one occasion you

 7     publicly addressed the Trial Chamber saying that you were short of time,

 8     that you had voluminous material, and that you were not prepared

 9     properly.

10        A.   Well, what we did is what I think any competent counsel would do,

11     and Ms. Loukas's approach would be the same as mine.  You -- you focus on

12     what you most want to get out of cross-examination.  You try to hit the

13     key points.  And you build the detail around it.  Now of course you may

14     also work the other way around and sometimes if you've got lots and lots

15     of time and you can review all the material the process is not simply one

16     way as I describe; but in many instances, Mr. Krajisnik, I'll be frank

17     about it and Your Honours we didn't feel severely handicapped in relation

18     to every single witness, sometimes it would have been very clear in

19     relation to a particular witness what we were trying to achieve.  We

20     might have simply been trying to demonstrate that actually when you probe

21     that witness he or she didn't really know that much directly, and you

22     might have been able to do that actually without an enormous quantity of

23     material, but the problem really is that you want your team anyway with

24     appropriate delegation, you want to feel confident that your team has the

25     time and the resources to at least review the material to make sure that

Page 644

 1     you're not missing something; and that was what we were never able to do

 2     because we simply didn't have enough time and resources to deal with the

 3     volume of material.

 4        Q.   Thank you.  There's an important question that arises here, and

 5     it's the relationship between Krajisnik and the direct perpetrators of

 6     the crimes.  I will read to you an address to the Trial Chamber on the

 7     28th of February, 2005, by Ms. Loukas.  That's on page 9577 of the

 8     transcript.  She says:

 9             "The fact that we have not thoroughly read and analysed all the

10     potentially relevant documents means that our cross-examination of these

11     witnesses during the Prosecution case has been obstructed or prevented."

12             These words were uttered in public by Madam Loukas before the

13     Court.  Do you agree with them?

14        A.   Yes, I do, though it wasn't in relation to the -- on the whole,

15     Mr. Krajisnik, it wasn't in relation to the direct perpetrators of the

16     crimes, by which of course you mean the crimes as we say on the ground,

17     the specific individual perpetrators of the actual direct crimes.  It

18     wasn't really in relation to evidence of that sort that our primary

19     problems lay.  After all, Mr. Krajisnik, and we're not -- we're not

20     breaching any privilege here, that wasn't the key to the case.

21        Q.   Mr. Stewart, I only asked whether you agreed with her opinion,

22     and I'm saying that witnesses were being examined who spoke of the links

23     between Krajisnik and the people who executed the crimes.  Do you agree

24     with her assessment?  Is her answer yes?  Can I take it to be yes?

25        A.   Mr. Krajisnik, I think it's clear that so far as what Ms. Loukas

Page 645

 1     is saying there is applicable to witnesses in that category.  I

 2     whole-heartedly agree with her.  I don't really disagree with her

 3     generally.  I'm just saying that as a -- applying what see says there as

 4     a difficulty in relation to pure if that's not the wrong word, but the

 5     simple crime perpetrators, the on-the-ground crimes that that wasn't the

 6     main difficulty so it's -- yes, it's -- it's true what she says, but it

 7     just wasn't that -- the key problem for us.

 8             JUDGE POCAR:  Mr. Krajisnik, I have to warn you, your time

 9     expired five-minutes ago.  I decided to let you go on a bit farther

10     because of the numerous questions that were put by Judges, but now I

11     would ask you in five minutes to conclude your examination, please.

12             MR. KRAJISNIK: [Interpretation]

13        Q.   I'll put a question to you which refers to the transcript of the

14     23rd of February, 2006.  That's page 2853 and 2854.  It refers expert

15     witnesses.  You said:

16             "We had a huge deficit of time.  We had insufficient time to do

17     work which demands hours and hours, so we reached one of the most robust

18     decisions we made, that is, we decided to stop all further investigations

19     as regards expert testimony.  So we simply removed them from the list.

20     That's deeply regrettable.  Your Honours, they were deliberately taken

21     off the list because quite honestly we were unable to work on that

22     issue."

23             Could you please explain whether you agree with the decision you

24     made then and the way in which you decided not to call experts?

25        A.   Well, Mr. Krajisnik, it's -- if that answer were taken as

Page 646

 1     implying that we did not at some suitable stage seriously examine the

 2     question of expert witnesses, that isn't so.  Ms. Loukas, under my

 3     direction and with my pretty active involvement, did a comprehensive

 4     memorandum on expert witnesses which went through three stages.  It -- it

 5     marked three as we called it was very significant improvement on marks

 6     one and two; and she and I did discuss under each topic heading and in

 7     relation to the areas of expertise of the Prosecution, we did -- we did

 8     discuss it.

 9             We came to a reasonably firm provisional conclusion that actually

10     there was very limited potential, real usefulness of expert witnesses on

11     your side of the case, Mr. Krajisnik.  That -- that was my judgement.  It

12     actually -- I must say, Your Honours, it remains my judgement, actually.

13     The -- Ms. Loukas felt uncomfortable not being able to do more detailed

14     work on the memorandum which she'd already done.  The mark 1 and 2 were

15     nothing fantastic, I must say; but mark 3 was a good, useful piece of

16     work.  I don't wish to exaggerate that.  It was an example of -- it was a

17     robust decision.  Ideally we would have spent time on it, but actually in

18     judging what were going to be the likely benefit to your case, it was

19     actually a candidate for jettisoning among the priorities of work but,

20     Your Honours, and, Mr. Krajisnik, please don't think that actually

21     considerable thought and discussion did go into the question of expert

22     evidence because it did.

23             MR. KRAJISNIK: [Interpretation] May I put two more questions,

24     Your Honours, brief ones?

25             JUDGE POCAR:  If they are very brief.

Page 647

 1             MR. KRAJISNIK: [Interpretation]

 2        Q.   One question, Mr. Stewart, is the following:  There were

 3     investigators at Pale, and on page 4476 of the transcript you talk about

 4     the management of the team at Pale and the organisation of their work,

 5     which was a serious issue.  There was no time to give them proper

 6     instructions and to control them properly.  If we asked for reports from

 7     them, there was insufficient time to study the reports.

 8             Very briefly, was this opinion correct and do you abide by it

 9     now?  Just say yes or no, please, if you can.

10        A.   Yes.

11        Q.   My next question is the following:  In the judgement there is

12     reference to 555 -- or, rather, 555 footnotes of the judgement referred

13     to Prosecution experts.  The Prosecution called 22 experts.

14             Can you explain to Their Honours would it have been useful for us

15     to have called a certain number of experts to respond to this vast amount

16     of material to which the Chamber referred when writing the judgement?

17     Out of a thousand or so or 2.000 footnotes, 555 refer to experts.

18        A.   Mr. Krajisnik, I still don't think that expert evidence would

19     have made any significant difference to -- on your side of the case, no.

20        Q.   And just one more question to round off.  Can you tell Their

21     Honours whether you as counsel can say what sort of document minutes of

22     the Presidency are?  Is it a legal document?  Are these notes or what

23     sort of document is it?  Minutes -- minutes from a Presidency session,

24     what category of document is that?

25             MR. KREMER:  That's not a proper question, Your Honour.

Page 648

 1             MR. KRAJISNIK: [Interpretation] I apologise.  I didn't hear what

 2     the Prosecutor said.

 3             JUDGE POCAR:  Can you repeat it?

 4             MR. KREMER:  I'm objecting to the question because it's an

 5     improper question.  It's calling for an opinion of this witness on

 6     something that has been specifically decided by the Trial Chamber.  It

 7     was within the purview of the Trial Chamber to make this decision and not

 8     an opinion for your counsel to give today.

 9             MR. KRAJISNIK: [Interpretation] Your Honours, if I may explain,

10     if I may clarify.  I would like to hear Counsel Stewart's reply in order

11     to find out how he treated these minutes during the course of the trial.

12             THE WITNESS:  Your Honour, am I to answer the question or not?

13     It's a --

14             JUDGE POCAR:  That's a completely different question.

15             THE WITNESS:  Your Honour, with respect, I don't quite see a

16     different question.  Could I be clear what the -- what the new version of

17     the question now is then, please?

18             JUDGE POCAR:  Can you put it again, the new version.

19             MR. KRAJISNIK: [Interpretation]

20        Q.   Mr. Stewart, you had in your possession minutes of the

21     Presidency.  Please tell us as a lawyer and as counsel what your attitude

22     to these minutes was.  What did they represent, in your view?  Were they

23     legal documents, notes, or some other type of document?  How did you view

24     them in the course of the trial?

25             JUDGE POCAR:  Again, I don't believe it's correct, Mr. Krajisnik,

Page 649

 1     your question.  You're just putting it another way, but it's not really

 2     different.  You simply can't put it, and that's it.  The witness will not

 3     answer to your question.

 4             Mr. Krajisnik, you -- you took five more minutes beyond the

 5     minutes I gave you, so I think you should conclude now your

 6     examination-in-chief.

 7             MR. KRAJISNIK: [Interpretation] May I rephrase the question or

 8     should I end with my examination-in-chief, Your Honour?

 9             JUDGE POCAR:  I think you should end with the

10     examination-in-chief.  You rephrased it only once more, and it was the

11     same question actually.  I think you should stop.

12             MR. KRAJISNIK: [Interpretation] Thank you very much, Your Honour.

13             Thank you very much, Mr. Stewart.

14             JUDGE POCAR:  Well, this concludes the examination-in-chief.  We

15     will now break until 4.30, and we will continue with the amicus if he

16     wants to take the floor for examination for 30 minutes.

17             The meeting is adjourned for the moment.

18                           --- Recess taken at 4.06 p.m.

19                           --- On resuming at 4.30 p.m.

20             JUDGE POCAR:  The hearing is resumed, and I understand

21     Judge Shahabuddeen wants to put a question now.  Please.

22             I'm sorry.  Let's wait for the witness.  I'm sorry, I didn't look

23     properly around.

24                           [The witness entered court]

25             JUDGE POCAR:  Please, Judge Shahabuddeen.

Page 650

 1             JUDGE SHAHABUDDEEN:  Mr. Stewart, I was quite impressed by your

 2     manner of giving testimony.  Let me put this to you --

 3             THE WITNESS:  Thank you, Your Honour.

 4             JUDGE SHAHABUDDEEN:  -- we may have to make an assessment on the

 5     way Judge Orie's Trial Chamber acted, but your testimony is not really

 6     directed to any allegations against him.  I apprehend that your testimony

 7     is directed at the question whether you as counsel provided effective

 8     assistance to the appellant.  Is that right?

 9             THE WITNESS:  I suppose -- sorry, on the last point I'm not

10     absolutely sure, Your Honour -- well, my testimony is directed towards

11     answering the questions I'm asked.  I rather understood Mr. Krajisnik's

12     questions to be going primarily to the question of the fairness of the

13     trial and the way the Trial Chamber dealt with it.  Well, Your Honours,

14     whatever the way the questions are going to I do my best to answer them

15     but so far as what Your Honour says about Judge Orie is concerned, yes,

16     of course, Your Honours, I don't have a brief; but it's not my brief to

17     make allegations against anybody.  Your Honours do see in the written

18     material that I have confirmed and my facts set out there which I confirm

19     are true that I -- it's clear that there are certain aspects of the

20     handling of this whole matter of which I -- well, I don't show it from

21     saying I am as counsel -- former counsel of Mr. Krajisnik rather

22     critical.  I don't shrink from that, Your Honours.

23             JUDGE SHAHABUDDEEN:  You appreciate that the interest of this

24     Appeals Chamber in your testimony is whether the testimony assists the

25     Appeals Chamber in determining whether you rendered effective assistance

Page 651

 1     as counsel to Mr. Krajisnik.

 2             THE WITNESS:  I certainly understand that to be at least one of

 3     the very important aspects.  Yes, of course, Your Honours, yes.

 4             JUDGE SHAHABUDDEEN:  I think the most important aspect, you take

 5     it from me.

 6             THE WITNESS:  Well, Your Honour, as I was going to say, the

 7     judgement as to what's the most important aspect is a judgement for Your

 8     Honours and not for me.

 9             JUDGE SHAHABUDDEEN:  Yes.  Now, you have said somewhere that you

10     were confronted with tens and tens and tens and tens of thousands of

11     pages of written material.  Elsewhere I think there was a reference to

12     500.000 pages.

13             THE WITNESS:  Yes, I heard that this morning, and I -- yes.

14             JUDGE SHAHABUDDEEN:  Yes.

15             THE WITNESS:  This afternoon, rather.

16             JUDGE SHAHABUDDEEN:  I applaud your general proposition to the

17     effect that it was for you to form an intelligent appreciation of the

18     substance of the case and to proceed that way, delegating as you thought

19     proper to members of your team.

20             By the way, the Tribunal supplied you with funds to enable you to

21     employ both yourself and co-counsel and some assistance.  How many?

22             THE WITNESS:  How much funds or how many --

23             JUDGE SHAHABUDDEEN:  How many?

24             THE WITNESS:  Well, perhaps it's -- in the -- at the beginning of

25     the trial, from what I recall now, there was myself.  There was

Page 652

 1     Chris Lukic as my co-counsel, Tatjana Cmeric as my case manager, a young

 2     woman called Lucy Robb who was a recently but extremely intelligent

 3     graduate from Australia as a legal assistant.  I think we had maybe one

 4     other legal assistant at that time or perhaps a little while afterwards,

 5     and then another one in the summer.  It wasn't a big team.  There was

 6     the -- the maximum number -- I'm not even sure it was that, but the

 7     Registry has all this information.  At the most -- it was the core three

 8     were myself, Ms. Loukas, and Ms. Cmeric, and we had one or two other

 9     legal assistants at that point, yes.

10             JUDGE SHAHABUDDEEN:  All right.  All right.  And you were able

11     with that assistance to manage the proceedings, were you?

12             THE WITNESS:  Well, in the way that I've described, Your Honour,

13     barely.  And -- and that was true throughout.  I think the description I

14     use was of running just to stay standing, and that really was the

15     position.

16             JUDGE SHAHABUDDEEN:  Mm-hmm.

17             THE WITNESS:  So far as the funding was concerned, it was -- that

18     was -- that was difficult, because it is an aspect of this case.  The

19     Registry provides, and Your Honours will be familiar with this, the

20     Registry provides a designated amount for -- this of course was a

21     category 3 case, but assesses --

22             JUDGE SHAHABUDDEEN:  That's the highest category.

23             THE WITNESS:  That's the highest category, of course, but I think

24     the general feeling I don't think was controversial was even among

25     category 3 cases this was pretty high up the scale, but Registry provides

Page 653

 1     a standard amount; but it also assesses what contribution to that sum the

 2     accused should make and the Registry only ever provides the net amount --

 3     I've got to say this was -- it was a bone of contention between

 4     Mr. Krajisnik and me pretty much throughout the entire case.  We -- we

 5     were only paid the net amount, of course, and we only had the net amount

 6     until very late in the trial when the Registry did provide some extra

 7     funding towards the very end.

 8             JUDGE SHAHABUDDEEN:  All right.  Let's -- if I may proceed to say

 9     this:  That the Trial Chamber, this I gather from you, did not hold

10     hearings on every week of the working day, three times per week, and in

11     addition it gave certain adjournments, and that was a pattern which

12     enabled you to manage the proceedings?

13             THE WITNESS:  That isn't -- that's not -- that's not quite how it

14     happened, Your Honour.  The -- clearly the actual dates of hearings can

15     be seen from the record.

16             For the first few months of the trial up to July, yes, it was --

17     it was patchy in various ways that one sees.  There was that start that I

18     referred to, and then we resumed after April.  There was an adjournment

19     in May.  I forget precisely why there.  Then there was the agreed facts

20     exercise which was ultimately aborted.  But after that when we resumed in

21     the autumn but not every week because it depended on what happened with

22     witnesses and so on, but in principle we were sitting five days a week.

23     That was the scheduled contemplated trial pattern, yes.  And the --

24             JUDGE SHAHABUDDEEN:  Did you sit every day in the week?

25             THE WITNESS:  I -- Your Honour, I -- it -- it felt like it but

Page 654

 1     that doesn't mean it did.  The -- we certainly did not have -- it's not

 2     like, for example, my current trial.  We certainly didn't have a

 3     designated day a week off.  And this was actually when I first agreed to

 4     come into the case it was understood that there would be a regular

 5     pattern of -- this is what I was told what would happen of a week a month

 6     or a day each week off.  It wasn't like that.  The basic -- once the

 7     trial really got under way according to a more rigorous schedule after

 8     the summer recess in 2004, I think the basic principle was it was five

 9     days a week.  There was no designated day a week off.  But how that works

10     out in practice Your Honours will know.  Of course it's in the vagaries

11     of trials.

12             JUDGE SHAHABUDDEEN:  Let me get on to another point if I may.

13     You remember that on 28th of February, 2005, the Trial Chamber gave its

14     reasons relating to the six months adjournment when it said there:

15             "I have to say that --" that is Mr. Stewart -- Mr. Krajisnik

16     said, Mr. Krajisnik said to the Trial Chamber:  "I have to say that

17     whatever both my counsels stated here today I endorse.  I do not have

18     anything to comment, to raise in relation to the services provided by my

19     counsel.  They are both very good lawyers."

20             Do you remember hearing those words?

21             THE WITNESS:  I didn't remember it was on the 28th of February,

22     Your Honour, but I -- of course I distinctly remember a number of

23     occasions when Mr. Krajisnik said -- said something complimentary about

24     us, yes, do.

25             JUDGE SHAHABUDDEEN:  Yes.  And do you remember that on the 18th

Page 655

 1     of August, 2005, the Trial Chamber gave its reasons for oral decision on

 2     the appellant's claim to self-representation?  In paragraph 35 it said

 3     that:

 4             "The Defence team," including yourself, "that this is not a case

 5     of an existing dysfunctional Defence team or of a complete breakdown in

 6     the client/attorney relationship.  On the contrary.  The current Defence

 7     team is competent, dedicated, functioning, and working well with the

 8     accused.  There is no public interest in dismantling such a team."

 9             That was said by the Trial Chamber in denying the appellant's

10     claim to self-representation.

11             Do you remember those words?

12             THE WITNESS:  I do broadly remember them, Your Honour, yes.  I --

13     yes, of course.

14             JUDGE SHAHABUDDEEN:  Are they substantially reflective of the

15     position do you think?

16             THE WITNESS:  Yes, they are, Your Honour.  I -- I believe they

17     are with this qualification that -- well, "dysfunctional" is a quite

18     strong word sometimes.  There were by that time -- the stresses and

19     strains of the case were certainly causing far more difficulty than might

20     have been apparent to the Trial Chamber.

21             JUDGE SHAHABUDDEEN:  Thank you very much, Mr. Stewart.

22             THE WITNESS:  Yes.  Thank you, Your Honour.

23             JUDGE POCAR:  Thank you.  I have Judge Vaz.

24             JUDGE VAZ: [Interpretation] Thank you, Your Honour.

25             Mr. Stewart, I'd like to put a question to you.  You mentioned

Page 656

 1     earlier fairly extensively the difficulties you had with the funds

 2     allotted to you and the lack of time.

 3             You also added, however, that you were saved - I think that was

 4     the word you used - by the departure Judge El Mahdi leaving the case, and

 5     you were therefore saved by the fact that it took some time for

 6     Judge Hanoteau, who was going to be replacing him, to read all the papers

 7     and catch up on the case.

 8             Can we assume that this lack of time was made up for in those

 9     circumstances in that from that time onwards you were more comfortable in

10     defending your client Mr. Krajisnik?  Thank you.

11             THE WITNESS:  It was certainly helpful, Your Honour.  There's no

12     question about that.  That much time was available for us.  But it

13     wouldn't be -- it wouldn't be true to say that it in anywhere near

14     enabled us to make up the entire deficit.  It didn't.

15             JUDGE VAZ: [Interpretation] Well, if it wasn't the entire

16     deficit, can you maybe give us an assessment of how much of that deficit

17     was made up for?

18             THE WITNESS:  Well, Judge -- Judge El Mahdi left the case -- 14th

19     of December comes into my head, but I don't know whether it was.  But it

20     was sometime in December, and so we had two and a half months.

21     Ms. Loukas, as I remember, went to Australia for about a month over that

22     recess which she needed to do.  There was no question about that.  I

23     absolutely endorsed and encouraged that, and she went not -- not working

24     on the case.  So there was the recess, and I worked, I think, quite a bit

25     of the recess myself.  So when we came back from the recess in January

Page 657

 1     there were then six weeks.  I don't think that a lot of catching could

 2     have been done until early or mid-January when we were all back here, and

 3     then we had those -- we had those six weeks.

 4             Your Honour, I'm sorry, it's not intended at all to be an

 5     unhelpful answer if I say we just had six weeks.  So, yes, we did.

 6             JUDGE VAZ: [Interpretation] Thank you.  Thank you, and thank you,

 7     Your Honour.

 8             JUDGE POCAR:  Please, Judge Meron.

 9             JUDGE MERON:  Mr. Stewart, you spoke of the tactic or strategy of

10     the Trial Court to allow fairly extensive adjournments so that you could

11     come up to speed with reading and preparing for the trial.  Was there any

12     time during the case that you feel you came entirely up to speed and you

13     reached adequate command of the material?  This is my first question.

14             THE WITNESS:  No, there wasn't, Your Honour.  When you say I

15     spoke of the tactical strategy of the Trial Court to allow fairly

16     extensive adjournments, I am -- I'm recognising that in the earlier

17     months of the trial, from the 4th or whatever it was, of February through

18     to June and then including that agreed facts exercise, I'm recognising

19     that -- that the number of sitting days in relation to the number of

20     available sitting days was not that massive.  So, yes, there was -- there

21     was a degree of flexibility, no question about it.  So later on not

22     really.

23             JUDGE MERON:  So you have never come completely up to speed and

24     being in command of the material that you would have wanted

25     professionally?

Page 658

 1             THE WITNESS:  Well, that is my view, Your Honour, but critically

 2     we certainly were never in that position by the time the Prosecution case

 3     had closed.  I don't mean that we were fully later, but -- but critically

 4     in dealing with the Prosecution case, no, we never felt comfortable about

 5     that, Your Honour.

 6             JUDGE MERON:  Thank you, Mr. Stewart.  My second question is

 7     this:  Responding to Judge Guney earlier today, I believe you gave three

 8     to four points to the trial's fairness.

 9             THE WITNESS:  Yes.

10             JUDGE MERON:  Could you point to something specific that you

11     could have done but did not do because you did not have enough time to

12     prepare and which may have caused real prejudice to Mr. Krajisnik?

13             THE WITNESS:  Well, Your Honours, first of all it's, if you like,

14     I'm afraid the rather general point I'll be making that we had, in

15     relation to the case generally and specifically in cross-examination the

16     Prosecution witnesses we felt that we never had the time or the resources

17     to be confident that we had examined all the material which might have

18     been helpful.  Now, the next stage, what material that was and if we had

19     had it what we would have been able to do with it, that's -- that's I've

20     got to say from where I sit that's a bit speculative by definition

21     because that's exactly what I don't know.

22             Another thing I will say also that the 60 per cent guideline that

23     the Trial Chamber adopted in the time it allowed for cross-examination

24     was in my view and consistent view; and we made representations very

25     often to that effect, far too rigidly applied.  We had a rather -- a

Page 659

 1     continual run-in.  Judge Orie would keep referring to it as the 60 per

 2     cent rule, and I would keep correcting him by reminding him it was a

 3     guideline and he would say, "Yes I agree," and then two minutes later he

 4     would refer to it as a rule and that was each of us really trying to put

 5     our position.  It was to a considerable extent applied as a rule, and I

 6     can't remember them, Your Honour, but on the transcript there will be I

 7     think a number of occasions when I protested that -- that I did have more

 8     cross-examination and I was being chopped off, and we sometimes came in

 9     under the figure.  So -- so that is one specific illustration.  And that

10     is directly relevant.  After all, if we did have cross-examination that

11     we'd identified and wanted to put, we felt that was unduly rigid.

12             JUDGE MERON:  Thank you, Mr. Stewart.

13             JUDGE POCAR:  Thank you.  Judge Shahabuddeen.

14             JUDGE SHAHABUDDEEN:  The question of your being cut off in

15     cross-examination is to my mind different from the question whether you

16     had enough time to come to grips with the material --

17             THE WITNESS:  I completely agree, Your Honour.  I completely

18     agree.

19             JUDGE SHAHABUDDEEN:  Yes, thank you.

20             THE WITNESS:  I was really trying to answer Judge Meron's

21     question with two separate examples.  Yes, I agree with you.

22             JUDGE SHAHABUDDEEN:  You spoke in this connection of tens and

23     tens and tens and tens of thousands of pages.  May I ask you this

24     question:  If you personally had to read each of these pages and to

25     linger over any associated photographs, would you be in a position to

Page 660

 1     commence the trial as of this date?

 2             THE WITNESS:  Well, I -- Your Honour's really anticipated my

 3     answer because my answer would be I would still be down there in the

 4     office reading them.  Yes, Your Honour, is spot on with that, yes.

 5             JUDGE SHAHABUDDEEN:  Thank you.  Thank you.

 6             JUDGE POCAR:  I thank you.  Before -- before giving the floor to

 7     the amicus, I got -- did I get it correctly that you said that the --

 8     there was a break in the trial when Judge El Mahdi left?

 9             THE WITNESS:  Yes, Your Honour.  I -- I forget the precise date,

10     but I think it was the 14th or around the middle of December.  It was

11     shortly before the recess, the winter recess in 2004.

12             JUDGE POCAR:  I didn't check in the records of any minutes, but

13     it must have been one month earlier than.

14             THE WITNESS:  Than ...

15             JUDGE POCAR:  Than your recollection.  It must have been

16     mid-November.

17             THE WITNESS:  I stand to be corrected, Your Honour.  My

18     recollected is because I thought we cross-examined.

19             JUDGE POCAR:  [Overlapping speakers] ... elected as judge by the

20     General Assembly that must have been the term expired on the 16th of

21     November.

22             THE WITNESS:  Yes, Your Honour.  With respect I'm not sure --

23             JUDGE POCAR:  So you had another four weeks more.

24             THE WITNESS:  Your Honour, I would stand to be corrected.

25             JUDGE POCAR:  No, I'm just for the record.

Page 661

 1             THE WITNESS:  May I just invite the Trial Chamber to check that

 2     specific date because it could easily be because it could easily be that

 3     there was a time lag between Judge El Mahdi not being re-elected and

 4     deciding he would leave the case but, Your Honour, it's eminently

 5     checkable and, you know, I'm not -- I'm not going to say I know, it's

 6     just easily checkable, yes.

 7             JUDGE POCAR:  Sure.  Sure.  Well, let's move on to the -- to the

 8     examination by the amicus if he's ready to do so.  Please.  You have half

 9     an hour.

10             MR. NICHOLLS:  Thank you.

11                           Questioned by Mr. Nicholls:

12        Q.   Mr. Stewart, I just want to ask you at the time to begin with at

13     the time you undertook the defence of Mr. Krajisnik you had 33 years

14     experience as a barrister?

15        A.   Yes.  I'd been called to the bar 33 years.

16        Q.   Whereas 18 years were as Queen's Counsel?

17        A.   Seventeen.

18        Q.   Seventeen?

19        A.   Yes.

20        Q.   And your practice was mainly in transferring and commercial work?

21        A.   That's correct.

22        Q.   But you had some experience of crime?

23        A.   I had experience of crime and also I had experience of sort of

24     quasi-crime if you like of hearings before the European Court of Human

25     Rights of which I had been involved down in Turkey, fact-finding hearings

Page 662

 1     by committees of the Strasbourg court into cases against Turkey which

 2     clearly involve criminal allegations, yes.

 3        Q.   You had sufficient experience of criminal work to know that

 4     pre-trial preparation of a defence is absolutely essential?

 5        A.   It's rather essential in civil cases as well, Mr. Nicholls, as

 6     well, so yes, of course I was very well aware of that.  That applies

 7     generally to -- to any case for any client, yes.

 8        Q.   In this case when you took it on, there was for practical

 9     purposes, so far as you were concerned, practically no pre-trial

10     preparation?

11        A.   You mean as it turned out when I --

12        Q.   As it turned out?

13        A.   You're talking about what I took over from -- you're not talking

14     about our team's preparation, but you're talking about what I took over

15     from the previous team are you?

16        Q.   What you took over from the previous team.

17        A.   There wasn't -- there wasn't very much evidence of readiness for

18     trial.  I don't believe -- put it this way bluntly, and I could elaborate

19     a bit, I do not believe that at the time that Mr. Brashich was taken off

20     the case around April 2004, I do not believe that he was prepared to

21     start the trial and could have started the trial effectively on May the

22     14th if he had been lucky enough not to have been suspended by the New

23     York Bar.

24        Q.   Is it right that he provided you with practically no work

25     product?

Page 663

 1        A.   That's correct.

 2        Q.   And that he at an earlier hearing had said to Judge Orie when he

 3     was asked for his work product that it was all in his head?

 4        A.   That's true, and I wish that in my initial discussions with the

 5     Registry I wish that somebody had drawn that statement to my attention

 6     earlier, because I wasn't aware of it until a while later.

 7        Q.   You didn't get a complete or reasonably full set of papers until

 8     sometime towards the end of November of 2003; is that right?

 9        A.   I didn't get what you might call Brashich-style full set of

10     papers until that date, yes.

11        Q.   And it was then that you and Ms. Loukas were able to have serious

12     discussions about the situation that you were faced with?

13        A.   That's true.  Added to the fact -- added the fact that the

14     Registry actually wouldn't pay to bring Ms. Loukas here until -- I don't

15     know whether it was one month before the trial or six weeks before the

16     trial.  She was in Australia.  They weren't prepared to bring her here

17     anyway -- they brought her here once for a short visit in August.

18        Q.   Ms. Loukas was an experience the counsel in criminal cases?

19        A.   She was, yes.  She worked for the public defender's office.  I

20     think she had for all or most of her career she worked for the public

21     defender's office in Sydney, yes.

22        Q.   Did she indicate to you that it would take at least a year to

23     prepare this case properly?

24        A.   I don't specifically remember it but I'm not -- I wouldn't be

25     surprised if she said that, yes.

Page 664

 1        Q.   Did she during the months of December, January 2003 to 2004, did

 2     she constantly urge you to make an application for an adjournment?

 3        A.   Yes, she did, yes, and she -- and she said we must go on strike.

 4     We must refuse to start the trial.  She said a large number of things she

 5     felt very strongly about it, yes.

 6        Q.   In spite of that you took the view that the case should be --

 7     proceed on the basis that you've told us in your evidence in answer to

 8     questions from Mr. Krajisnik?

 9        A.   I didn't take the view the case should proceed, Mr. Nicholls.  I

10     took the realistic view that it clearly was going to.

11        Q.   And you --

12        A.   And it was not my decision.

13        Q.   And you were prepared not to make an application for adjournment

14     on the basis that you didn't think it would succeed?

15        A.   I was prepared not to make -- as I explained I was prepared not

16     to make an application for adjournment because I made the most vigorous

17     representations and Ms. Loukas was with me at a many of these meetings.

18     I made the most vigorous representations to the Trial Chamber because in

19     this -- I soon discovered that in this institution far more than the

20     courts that you and I are used to routinely; and I don't mean this in

21     itself critically, it can have its negative aspects, but I soon

22     discovered that far more of this sort of thing gets discussed and dealt

23     with outside the formal court environment than a you or I would be used

24     to in our own jurisdiction and I decided to -- we were doing it that way.

25        Q.   Do you agree that had you made an application for an adjournment

Page 665

 1     there was at least a possibility that it might have been granted by three

 2     Judges?

 3        A.   No, I don't actually, Mr. Nicholls.  I think it was practically

 4     doomed to failure I do because they -- they would have been dealing with

 5     an application where they would say, Well we're only asking you to do 18

 6     days and we've given you a flexible schedule over the next couple of

 7     months.  Ask for an adjournment in a couple of months' time if that

 8     doesn't work, which was a master of fact Mr. Nicholls.

 9        Q.   Do you --

10        A.   What I had in mind was that -- excuse me, if you would just let

11     me finish my answer.  The question of whether and when to time an

12     application for adjournment was under constant discussion; and for the

13     reasons that I've described we gave up on this negotiation mode which

14     actually when you look at the -- at the trial schedule from February to

15     end of June was moderately successful, actually, in getting us some time

16     during that period but when it call broke down, the collapse of the

17     agreed facts exercise, we did then make that application.

18        Q.   Do you agree that by not making an application to the Trial

19     Chamber you at least lost the opportunity of making a further appeal to

20     the Appeals Chamber?

21        A.   No, I don't, Mr. Nicholls, because I am -- my judgement at the

22     time and I actually still think -- I don't think I was wrong.  My

23     judgement at the time was that an application would have failed, and

24     Mr. Nicholls retrospectively I mean getting a bit hypothetical, it

25     follows my judgement that if that application had failed we would have

Page 666

 1     stood any realistic chance of success on appeal is that no we wouldn't;

 2     and we didn't appeal maybe you're coming to that.  I don't know.  We

 3     didn't appeal the refusal for the first application for adjournment.

 4        Q.   Do you agree with hindsight that your decision was wrong?

 5        A.   No, I don't.

 6        Q.   Do you recall saying on one occasion, "I shouldn't have

 7     underestimated the problem for so long.  I shouldn't have just brushed

 8     aside certain matters.  I should have brought this to the attention of

 9     the Trial Chamber a long time ago"?  That's the July application --

10        A.   Yes, I remember that.  I remember that perfectly well,

11     Mr. Nicholls.  If you say do I agree with the benefit of hindsight that

12     my decision was wrong with the benefit of hindsight we ended up no better

13     offer than if I had made the application at the beginning but that's not

14     quite the same thing.  If you're asking me now do I think, do I think

15     that when I made that judgement in February or just in the run-up to

16     February it was a wrong judgement at the time, no, I don't think it was

17     and I would like to say in relation to those comments which you -- you

18     quote from the transcript there is an element, and I don't think I was

19     misleading anybody here, there was an element there of wanting to mollify

20     and boost the morale of my extremely beleaguered team, and particularly

21     Ms. Loukas.  And I wasn't saying and the discussions with Ms. Loukas

22     didn't involve self-flagellation on my part and I got it all wrong,

23     Chrissa, and it was a complete blunder on my part.  It wasn't that, but I

24     wanted to --

25        Q.   [Overlapping speakers] ...

Page 667

 1        A.   But I -- Mr. Nicholls, I wanted to acknowledge that as it had

 2     turned out we were still beleaguered and actually another, if you like,

 3     disagreement between us was with the benefit of hindsight I was too

 4     trusting; and I did acknowledge this to Ms. Loukas I was too trusting of

 5     the Trial Chamber's willingness to look as we went along at future

 6     applications for an adjournment situation as it developed.

 7        Q.   If I may stop you for a moment if you understand.  I've only got

 8     half an hour --

 9             THE INTERPRETER:  Could the speakers please refrain from

10     overlapping.

11             MR. NICHOLLS:

12        Q.   I've only half an hour in which to ask you questions.

13        A.   Absolutely, Mr. Nicholls, but I wish to answer your questions.

14     Thank you.

15        Q.   I'll just follow on for a moment, please I just want to consider

16     the result of the decision.  You started the trial on the 3rd of February

17     of --

18        A.   I still don't know whether the 3rd or the 4th but it was a

19     Monday.

20        Q.   Let's accept whatever it was.  At the second application for

21     adjournment you said that your team had only read 15 per cent of the

22     papers in the trial.

23        A.   Did I say that my not quibbling, did I say.

24             JUDGE POCAR:  Mr. Stewart, please don't interrupt the question.

25             THE WITNESS:  I'm sorry.

Page 668

 1             JUDGE POCAR:  Otherwise the interpreters cannot follow.

 2             THE WITNESS:  I'm so sorry, Your Honour, of course I accept that

 3     point completely.

 4             MR. NICHOLLS:

 5        Q.   Let me put the question again.

 6        A.   Yes.

 7        Q.   At the second application for adjournment that is 13 months into

 8     the trial, you said your team had only read 15 per cent of the papers.

 9     Would you care to answer what percentage of the papers your team had read

10     on the 3rd, 4th of February when the trial began?

11             THE INTERPRETER:  Could Mr. Nicholls speak more into the

12     microphone for the interpreters, please?  Thank you.

13             THE WITNESS:  1 per cent, 2 per cent.  I don't -- Mr. Nicholls,

14     if there were half a million papers we must have read a few thousand, I

15     suppose, so it's a small percentage, yes.

16        Q.   Did you consider it was proper to commence a trial when your team

17     had only read between 1 and 2 per cent of the papers?

18        A.   I didn't think it was a good idea, Mr. Nicholls, but proper -- if

19     I may answer your question, to some extent this was if you like a

20     particular discussion between Chrissa Loukas and me.  She said we must go

21     on strike and I said actually, Chrissa, if we are in court and if the

22     Court says the trial starts, we may not like it, we have protested it, we

23     may fight it; but in the end if they say the trial starts, the trial

24     starts.

25        Q.   Let me go to the next question, please.  At that time, the 3rd or

Page 669

 1     4th of February had you properly your team properly conducted any

 2     investigations into the credibility of the Prosecution witnesses?

 3        A.   We hadn't been able to conduct any investigations, Mr. Nicholls,

 4     because the idea Ms. Cmeric, Ms. Loukas, and I, we'd not been able to go

 5     anywhere else.  We'd not been able to go down to the region.  We had the

 6     people in Pale.  To that degree, the people in Pale supplied us the

 7     information from time to time, but I think I just have to say with all

 8     honesty, Mr. Krajisnik probably won't like me saying it, they were

 9     amateurs.

10        Q.   Let me leave that aside.  Had you examined the Prosecution's

11     material?

12        A.   As much as we could, yes.  We examined the Prosecution in

13     relation to the witnesses that were coming up, Mr. Nicholls, particularly

14     to whom of course we gave priority.  We examined as much as possible of

15     the Prosecution material and Ms. Cmeric was helpful; Ms. Cmeric is a

16     highly intelligent, able woman who had had some previous involvement in

17     the case and did have some knowledge.

18        Q.   Had you examined any Defence material that might be available?

19        A.   Relatively little.  Ms. Cmeric, actually, as I remember, I

20     couldn't be absolutely sure of timing on this, Mr. Nicholls, but because

21     a lot of that even most of it if you like was in B/C/S, Ms. Cmeric did

22     look at that sort of material she -- she was pretty dismissive of a lot

23     of it actually she --

24        Q.   Did you have a proof of evidence from Mr. Krajisnik?

25        A.   No we didn't, Mr. Nicholls.

Page 670

 1        Q.   Next question, please.

 2        A.   Yep.

 3        Q.   Had you taken any detailed instructions from him for the purposes

 4     of cross-examination and for his defence?

 5        A.   Yes, of course we had.

 6        Q.   To what extent?

 7        A.   Well, we concentrated in the circumstances, we concentrated

 8     particularly on the witnesses that were coming up that was the -- that

 9     was the natural focus.

10        Q.   What was the proof what proof of evidence did you have?

11        A.   Of whom?

12        Q.   From Mr. Krajisnik.

13        A.   We didn't have a proof.  There was no formal proof.  There was no

14     proof of evidence prepared by my predecessor and nor did we attempt at

15     that pre-trial stage nor did we attempt to -- to prepare a proof of

16     Mr. Krajisnik.  It wasn't that we didn't, I did prepare one eventually of

17     course, but it wasn't at that stage a priority, Mr. Nicholls, no.

18        Q.   Had you by the 3rd or 4th of February identified any Defence

19     witnesses apart from Mr. Krajisnik?

20        A.   I doubt it, Mr. Nicholls, sent in -- in very -- I -- I doubt it.

21     Yes.

22        Q.   Ms. Loukas complained very much that there was no proper defence

23     case strategy.  Do you recall that?

24        A.   Oh, I recall Ms. Loukas complaining about that and actually quite

25     a lot of other things a lot of time, yes.

Page 671

 1        Q.   Was she correct that there was no defence case strategy?

 2        A.   Not really.  The -- the -- it was -- we -- we both agreed that we

 3     of course we would have liked more time.  We would have liked more time

 4     on everything.  We both agreed that we would have liked more time to

 5     develop the strategy in more detail, to move from the strategy -- well,

 6     to the sort of things you're talking about, to the strategy to --

 7        Q.   Is it --

 8        A.   Mr. Nicholls, I haven't finished my answer, I'm afraid.

 9        Q.   Remember I haven't [overlapping speakers] ...

10        A.   Mr. Nicholls, I remember; but if you ask me a question, please,

11     Your Honours, I wish to be able to answer it.

12        Q.   Can you take it a little more shortly please, Mr. Stewart?

13        A.   If it enables me to answer the question, Mr. Nicholls, I will.

14        Q.   Carry on.

15        A.   As I think I indicated earlier, we were able and we had a clear

16     enough idea of the strategy for that not to be the problem in the

17     examination of the Prosecution witnesses that we were faced with.

18        Q.   Mr. Stewart, the position is, is it not, that on the 3rd or 4th

19     of February your team was grossly unprepared to commence a trial?

20        A.   We'd done our best, Mr. Nicholls, but it follows that -- that

21     it -- we -- the trial was started too early.

22        Q.   Please the question is:  On the 3rd or 4th of February, your team

23     was grossly unprepared to commence a trial.

24        A.   If you're looking at the whole trial, yes, we were; of course we

25     were.  We knew that.

Page 672

 1        Q.   And there could be no doubt about it, that if you were to put

 2     yourself in Mr. Krajisnik's position it could not in the circumstances be

 3     a fair trial?

 4        A.   We told Mr. Krajisnik.  You're quite right.  It's the only

 5     qualification was that as I've indicated I don't think we ended up

 6     particularly hampered in relation to that first batch of witnesses if

 7     February; but yes we were grossly under-prepared to start a trial, a full

 8     trial.  We made that clear to Mr. Krajisnik.  We regretted it.  He knew

 9     we thought that.  There was no disguise.  We didn't want to worry him

10     unduly for heaven's stake but he was our client.  We owed it to him to

11     give him our frank view of that.

12        Q.   Do you agree that in no way there could be no fair trial in the

13     circumstances of the 3rd of or 4th of February?

14        A.   There couldn't have been a fair trial starting on the 3rd or 4th

15     of February unless -- unless suitable leeway were given later and

16     suitable time were given later.  It didn't follow as night follows day

17     that starting the trial only the 4th of February meant that it was bound

18     to be unfair, but it was going to be unfair unless adjustments, and

19     radical adjustments were made pretty soon after that to -- to allow us

20     adequate opportunity to -- to present Mr. Krajisnik's case.

21        Q.   Ms. Loukas said that you needed 12 months, do you agree?

22        A.   We're talking -- we were never going to get 12 months,

23     Mr. Nicholls, I mean we have to operate from that position, but if

24     Ms. Loukas and I'd agree if you're saying well; and I would have agreed

25     with her if you say what -- what -- what ought we to be allowed by this

Page 673

 1     institution and what ought we to have been given in order to prepare for

 2     this trial in the way that she and I would both be used to, yes, I never

 3     disagreed with her about that sort of assessment and wouldn't now.

 4        Q.   Now let me ask you this:  At the 65 ter meeting on the 3rd of

 5     January, Judge Orie referred to the papers in the case as being in a

 6     state of chaos; is that right?

 7        A.   Yes, it is absolutely right because apart from anything else he

 8     must have got that information from me because how would he have known I

 9     had the Defence papers.

10        Q.   And he acknowledged the difficulties that you had?

11        A.   I -- Mr. Nicholls, I don't know.  You'd have to cite to me what

12     constituted that acknowledgement.

13        Q.   But in spite of his saying to you that the Defence would have

14     difficulties and that the papers were in chaos, you still did not make an

15     application for an adjournment?

16        A.   I told Judge Orie there and then sitting across a table in the

17     light of everything he was saying that the -- that that was not a

18     suitable date on which to start the trial and Judge Orie said, "This

19     trial will start on the --" whatever it was, the 3rd or the 4th of

20     February.

21        Q.   You finally made your first application for an adjournment on

22     the -- in the months of July --

23        A.   Correct.  After the breakdown of the agreed facts exercise, yes.

24        Q.   And in that case of the adjournment you expressed all your

25     anxieties about the time and resources that you had?

Page 674

 1        A.   Correct.

 2        Q.   And what I suggest to you is that it was at that moment in time

 3     that you indicated that you shouldn't have underestimated the problem for

 4     so long and that you should have listened to your co-counsel.

 5        A.   The -- the last bit, Mr. Krajisnik, was to keep my team happy.  I

 6     did listen to my co-counsel.  Of course I did.  I just didn't agree with

 7     her all the time.

 8        Q.   Now, that application for an adjournment in July 2004 failed?

 9        A.   It did.

10        Q.   But you didn't apply -- you didn't appeal --

11        A.   Yeah.

12        Q.   -- the decision --

13        A.   Correct.

14        Q.   -- not granting you the adjournment?

15        A.   Correct.

16        Q.   Why not?

17        A.   Because I was about as sure as I could be that we would lose, and

18     I thought what would happen is what did in fact happen with the second

19     application for an adjournment, which we did appeal.  I thought that the

20     severe danger of appealing was that there would be some possibly ringing

21     endorsement from the Appeals Chamber but that the appeal would fail and

22     that would actually only encourage the Trial Chamber to push the trial

23     along.  I preferred to leave it.  I preferred to make a renewed

24     application at some later date which we always felt that the point would

25     come where we would have to make yet a further application.

Page 675

 1        Q.   Mr. Stewart --

 2        A.   So it was a judgement, Mr. Nicholls, which if you're -- maybe I'm

 3     anticipating the next question.  It was a judgement which I actually

 4     think was correct.

 5        Q.   Was it a judgement with which your client agreed?

 6        A.   Do you know, I simply don't remember, Mr. Nicholls.

 7        Q.   Did you consult him?

 8        A.   Of course.

 9        Q.   Do you regard it as a proper exercise of judgement not to make an

10     application for an adjournment or any other application on the basis that

11     you do not think the Tribunal will grant the application?

12        A.   I certainly think it's a highly material factor, Mr. --

13     Mr. Nicholls, yes, I do.

14        Q.   The position was that the first and the second applications for

15     an adjournment failed, as you have indicated, and you were left in a

16     position where you were effectively dealing with the case as it went

17     along adopting really a position of fighting -- fighting fires, fighting

18     bush fires; is that right?

19        A.   That's entirely correct, Mr. Nicholls, yes.

20        Q.   Is the position that in truth you never, never could make up for

21     the lack of preparation which you'd had at the outset?

22        A.   The outset meaning?

23        Q.   When you started the trial.

24        A.   We could -- we could never make up for -- for where we were.

25     Yes, we could never make up for where we found ourselves when we came

Page 676

 1     into the case and where we found ourselves when the trial started.  I

 2     agree with that, yes.

 3        Q.   And so far as cross-examination was concerned, you were never in

 4     a position to be able to say that you were able to examine all the

 5     material that you needed to examine in order to conduct effective

 6     cross-examinations?

 7        A.   Yes, that probably wasn't in relation to every witness,

 8     Mr. Nicholls, but generally speaking and certainly when we are talking

 9     about, if you like, the more important witnesses because plainly there's

10     such a category that's correct, yes.

11        Q.   It applied in respect of certain witnesses where you felt that

12     you did not have the material and so far as other witnesses were

13     concerned would the position be because of not be able to look at

14     material you'd never be in a position to know?

15        A.   Yes.  Again, it's a little bit sweeping to say never because some

16     witnesses, Mr. Nicholls, were inevitably relatively minor in the ambit of

17     their evidence; and in fact, you could be confident for practical

18     purposes that -- that you'd looked at what you needed to look at, yes.

19     But that's not a very large number, I think.

20        Q.   Now, I want to come on to the Defence case for a moment.

21        A.   Yes.

22        Q.   You were very concerned as to whether you had sufficient time to

23     prepare the Defence case?

24        A.   Yes, indeed.

25        Q.   That involved in the first case considering witnesses who would

Page 677

 1     give evidence before Mr. Krajisnik.

 2        A.   Yes.

 3        Q.   Deciding who those witnesses were.

 4        A.   Correct.

 5        Q.   The order in which they gave their evidence, and of course its

 6     content.

 7        A.   Yes, Mr. Nicholls.  The only qualification I make about that is

 8     that the order in which they gave their evidence would be low down the

 9     list of priorities really because frankly when you get into the question

10     of -- and the Prosecution I'm sure found this as well, when you get into

11     the question of bringing witnesses from the region to here your order is

12     often dictated by who you can actually get here.

13        Q.   Did you have sufficient time to prepare the examination at

14     those -- one, to decide who the witnesses were; two, to prepare what they

15     were going to say?

16        A.   I've got to say in relation to the Defence case, Mr. Nicholls, it

17     wasn't as -- the position wasn't as dire really as it had been in dealing

18     with the Prosecution case.  We never -- we never had as much time as we

19     would have wanted, and we had enormous difficulty at the early stage of

20     putting together and filing that list; and we can see from the record the

21     enormous problems in meeting the trial's -- Trial Chamber's deadlines

22     before we started the Defence case.  Once we were into it, it wasn't --

23     it wasn't the most dire and difficult aspect of the case for us.

24        Q.   Did you ask for more time?

25        A.   We -- yes, we -- we -- in the -- the filing of the 65 ter list

Page 678

 1     and the question of starting the Defence case, yes, we -- we asked -- I

 2     think on several occasions, we asked for more time and for deadlines to

 3     be deferred, and as far as I remember there were.

 4        Q.   Were there considerable difficulties in providing summaries of

 5     the Defence [overlapping speakers] ...

 6        A.   Yes, indeed there were.  Let me add that, of course, we had the

 7     additional difficulty at that point that Ms. Loukas had left the case and

 8     Mr. Josse was new to the case and that was an extra difficulty we had.

 9        Q.   Did those difficulties cause considerable difficulties with --

10     problems with Judge Orie and they brought you into conflict with him?

11        A.   Lots of things cause conflict with Judge Orie because we -- we

12     didn't like the rulings that Judge Orie made, and I think -- I must say,

13     Mr. Nicholls, I don't know, I'm not a mind-reader, but I do think that a

14     great deal of difficulty went back to what I call that breakdown in the

15     summer of 2004 and the agreed facts exercise, but yes it was not a happy

16     ship although it had been for many months.

17             JUDGE POCAR:  Mr. Krajisnik, sorry.

18             THE APPELLANT: [Interpretation] May I be allowed to leave the

19     courtroom for just a few minutes with your leave, and then I will be

20     back?

21             JUDGE POCAR:  Yes.

22             THE APPELLANT: [Interpretation] Thank you very much.

23             THE INTERPRETER:  Interpreters note, could the speakers please

24     slow down and make pauses between questions and answers both for the sake

25     of interpretation and the transcript.

Page 679

 1             THE WITNESS:  Yes, noted.  I apologise.

 2             JUDGE POCAR:  We can resume.  Mr. Nicholls, you still have three

 3     minutes to conclude your examination.

 4             MR. NICHOLLS:  Thank you.

 5        Q.   Mr. Stewart, did you consider that you had sufficient time for

 6     the preparation of the final brief?

 7        A.   No, not really.  It was terribly tight.  It was incredibly hard

 8     work, yes, but you expect hard work.  We would have liked quite a bit

 9     longer.

10        Q.   In the course of the trial, is it right that you were very much

11     concerned with priorities?

12        A.   That's not unusual, but yes, we were very much concerned with

13     priorities, Mr. Nicholls.  That's entirely correct.

14        Q.   But particularly so in this case because of the time that was

15     available to conduct the work that had to be done?

16        A.   I hundred per cent agree with that, Mr. Nicholls, yes.  That's

17     entirely correct.

18        Q.   Did that include cutting down on legal research?

19        A.   Yes, Mr. Nicholls, it did, but I -- that -- again that -- that

20     was not actually really that much of a problem.  We -- yes, we would have

21     liked to do more.  You know, sometimes -- sometimes counsel just want a

22     break.  Ms. Loukas, I think, would have dearly loved to occasionally be

23     released from the grind of cross-examining and do some legal research;

24     and I respected that feeling, but we were not hampered in the sense that

25     we did enough -- enough, Mr. Nicholls, to -- to know where we were going.

Page 680

 1     I mean, we -- we needed a legal road map, if you like of where we were

 2     you go we did that.  And yes, we did enough to do that, yes.  It would

 3     be -- a high priority to know at lease where you're going legally, of

 4     course.

 5        Q.   First you had to identify the members of the team who were to do

 6     the research?

 7        A.   That wasn't all that difficult, Mr. Nicholls, given the members

 8     of the team.  There weren't all that many choices.  Actually, I selected

 9     myself, actually, quite often for that.

10        Q.   Secondly, so far as any particular exercise was concerned, you

11     need to identify the people who were to do it.

12        A.   Of course.

13        Q.   And your team was very small indeed, wasn't it?

14        A.   It was, yes.

15        Q.   And so far as the lawyers were concerned, there was to begin with

16     yourself and Chrissa Loukas?

17        A.   Correct.

18        Q.   And then later you and Mr. Josse.

19        A.   Yes, Josse.

20        Q.   Josse.

21        A.   Commonly known as Josse, yes.

22        Q.   Were they really the two of them or the two of you as it might

23     be, were you really able to cope in the time that you had with the

24     identification of topics, the investigation of the of the topics as you

25     required as you would do to provide a quality service to Mr. Krajisnik?

Page 681

 1        A.   Well, Mr. Nicholls I'd also like to add, you said there's only

 2     counsel; for example, the person I mentioned, Lucy Robb, who was a legal

 3     assistant came with glowing prizes and honours from law school in

 4     Australia.  It is not as if we had no legal resources.  But the answer

 5     quality service, legal research is not a problem, actually, ultimately.

 6     I'm repeating myself really , Mr. Nicholls.  We were able to know enough

 7     about where we were going legally, we were.

 8             JUDGE POCAR:  Mr. Nicholls, I have to say that your time has

 9     expired.

10             MR. NICHOLLS:  Then I stop there.

11             JUDGE POCAR:  Thank you.  Let me turn to the Prosecution to --

12     for the cross-examination of the witness, please.

13                           Cross-examination by Mr. Kremer:

14        Q.   Mr. Stewart, I gather from your testimony in response the

15     questions of Mr. Nicholls that Mr. Krajisnik was very active in his

16     defence?

17        A.   Yes, he was.  He -- he -- Mr. Krajisnik is -- is very hard

18     working, and he produced large quantities of material, yes.

19        Q.   And did you during the course of his defence meet with him on a

20     regular basis?

21        A.   Yes, we did.

22        Q.   With respect to the Prosecution case, did Mr. Krajisnik provide

23     you with are proposed questions to ask to each of the Prosecution

24     witnesses that testified?

25        A.   Yes.  I -- I don't know whether he always presented his material

Page 682

 1     in the form of questions or sometimes in the -- in the form of notes, but

 2     one way or another I think he always, and I think always, produced notes

 3     in his own language which then so Tatjana Cmeric would usually be the

 4     first point at which that would be considered, yes.

 5        Q.   And with respect to documents, the half million pages of

 6     documents that had been provided by the Prosecution as disclosure, had a

 7     copy of those documents been made available to Mr. Krajisnik from the

 8     beginning of the disclosure and throughout its -- throughout the

 9     pre-trial phase and during the trial phase?

10        A.   I -- that wasn't really feasible.  The -- certainly not in hard

11     copy.  There was no question of -- there was no question of duplicating

12     the -- the room full of stuff that we had down at our office, but he was

13     provided with -- we -- we had a very regular exchange of CDs with

14     Mr. Krajisnik by which, of course, he was supplied with material.

15        Q.   Right.  And is it fair to say that Mr. Krajisnik's input into the

16     case was very strong and because of his knowledge of the political

17     history and -- and having lived the political history of

18     Bosnia-Herzegovina in 1992?

19        A.   Well, Mr. Krajisnik -- yes, of course Mr. Krajisnik knew a great

20     deal about the -- about his own case, and he is extremely industrious and

21     after all had an incentive; but he is by nature very industrious, yes.

22        Q.   And did you use your professional judgement in determining

23     whether and how to put Mr. Krajisnik's questions to the various

24     witnesses?

25        A.   Well, we -- we did our best to sift the material that came from

Page 683

 1     Mr. Krajisnik.  Mr. Krajisnik is a demanding client but I don't blame him

 2     in the least for that.  I'd rather have a client who gives you input than

 3     one that doesn't.  He provided us with material which was with the other

 4     material demanding to sift and consider, yes.

 5        Q.   Right.  Now, during the course of the Prosecution's case, am I

 6     correct that for the municipality witnesses you received a binder that

 7     included all of the material that the Prosecution intended to lead in

 8     respect of the municipalities in advance of the municipality evidence

 9     that would be called during the course of the case?

10        A.   Actually, I'm not at all sure that -- that consistently that

11     material was provided in advance of the evidence in relation to that

12     municipality.  I -- I just don't recall.  I've -- I have a feeling it may

13     not have been, but that's -- I don't know.

14        Q.   And did you not also receive a binder of the proposed evidence of

15     the witness, all previous statements of the witness, and any documents to

16     which the witness might refer during the course of his testimony?

17        A.   Oh, yes, we had had that, yes.

18        Q.   Right.

19        A.   That was provided.

20        Q.   And you at least knew for the purposes of preparation what

21     case -- what evidence the Prosecution intended to draw from the witness;

22     correct?

23        A.   Well, yes, because in -- as you quite rightly indicate, we -- the

24     statements, I think it must have been -- well, not just rare, but I don't

25     suppose it happened or if it did on one or two rare occasions there was

Page 684

 1     not a statement of the witness indicating what he was going to say apart

 2     from the 65 ter summaries of course which were -- with respect were

 3     pretty variable on the Prosecution's side.

 4        Q.   Now, let's back up a moment.  Let's go to when you were first

 5     retained as counsel for Mr. Krajisnik.  Did you meet with Mr. Krajisnik

 6     on occasion prior to the commencement of the trial?

 7        A.   Yes, of course, yes.

 8        Q.   And did you receive from him instructions as to what his defence

 9     would be?

10        A.   Yes.

11        Q.   And when you commenced as counsel there was already a pre-trial

12     brief prepared by the Brashich team which by my reading basically put the

13     Prosecution to the test of proving its case with no concessions or

14     admissions by the Defence.  Do you agree with that?

15        A.   Yes, I do.

16        Q.   And did you receive any instructions from Mr. Krajisnik to take

17     another position, a more conciliatory position during the course of the

18     presentation of the Prosecution case?

19        A.   Mr. Krajisnik, I don't recall whether it was with what degree of

20     reluctance, I don't know, but Mr. Krajisnik accepted our going into the

21     agreed facts exercise and attempt which was -- which was a very different

22     approach from Mr. Brashich, who I believe from talking to him what I seen

23     would -- would not contemplate that sort of process.

24        Q.   When you backed away from the admitted facts process prior to

25     communicating --

Page 685

 1        A.   Agreed facts.

 2        Q.   Agreed facts.  I'm sorry.  Agreed facts process.  Did you consult

 3     with Mr. Krajisnik on the decision that you were proposing to take?

 4        A.   Actually, I think that -- I think that the particular decision to

 5     pull the plug, as I put it, on that was taken by me over a weekend

 6     without final consultation with Mr. Krajisnik, as it happens.

 7        Q.   And when you advised Mr. Krajisnik did he encourage you to

 8     recommence the negotiations?

 9        A.   Oh, Mr. Krajisnik certainly didn't have any problem with that.

10     After all, if I'd expected he'd have any problem with my decision I would

11     have left it to go and see him at the Detention Unit.  No.  There was

12     no -- there was no difficulty about that decision.  In fact, my team were

13     delighted with that decision.  I was, if you like, the last one to want

14     to keep trying on this.

15        Q.   Now, let's talk about your understanding of the defence of

16     Mr. Krajisnik when the trial started.  You mentioned that you had spoken

17     on many occasions to Mr. Krajisnik before the commencement of the

18     Prosecution case.

19             Did you have a specific understanding of what the basic defence

20     strategy was when you cross-examined the first Prosecution witness?

21        A.   Yes.

22        Q.   And I'm going to suggest to you that the Defence strategy can be

23     summarised as follows:  One, that you wanted to put as much distance

24     between Mr. Krajisnik and Mr. Karadzic.  Is that right?

25        A.   That was certainly included in it, yes.

Page 686

 1        Q.   Number two was to show that Mr. Krajisnik was merely the

 2     president of the Assembly, a politician, and not someone who was in a

 3     decision-making role or capacity.

 4        A.   Yes.  That's -- it's a little bit more -- I don't blame you, but

 5     it's a little bit more crudely put than I would have formulated it, but

 6     very broadly, yes.

 7        Q.   That there was no link between Mr. Krajisnik and the crimes that

 8     were committed on the ground?

 9        A.   Links were the key, yes.

10        Q.   That he was not a member of the expanded Presidency.

11        A.   Yes, and that -- that's --

12             THE APPELLANT: [Interpretation] Mr. President, I do apologise.  I

13     don't know whether the Prosecutor should continue to put such leading

14     questions.

15             JUDGE POCAR:  I don't believe these are leading questions.

16             MR. KREMER:  They're leading questions, but I'm entitled to put

17     them, Your Honour.

18             THE APPELLANT: [Interpretation] If he does have that right, I

19     apologise; but I believe the Prosecutor should rely on the

20     examination-in-chief and put less leading questions, because he has a

21     professional lawyer before him; so he will answer in the proper way.

22             MR. KREMER:  I'm just trying to be of assistance.

23             JUDGE POCAR:  I don't believe these are leading questions.

24     Whether they're restricted or not to the cross-examination -- to the

25     examination-in-chief, this is something that we should appreciate later.

Page 687

 1             MR. KREMER:  Just to respond briefly, since we've opened up the

 2     whole area of fair trial and the effectiveness of counsel, this goes to

 3     the core of how effective counsel was at the commencement of the trial

 4     and throughout, and I will -- I won't stray from the effectiveness of

 5     counsel and the fairness of the trial.

 6        Q.   Did you also, Mr. Stewart, as part of the Defence strategy,

 7     attempt to show that Mr. Krajisnik was a participant in international

 8     negotiations and looking for a peaceful solution to the conflict?

 9        A.   Yes, not just in the international context, yes.

10        Q.   And you also had as a strategic goal know that Mr. Krajisnik had

11     no links with the army or the police?

12        A.   Well, we certainly wished to minimise, show -- yes.  Show how

13     little or non-existent they were, yes.

14        Q.   And that Variant A and B was not an official document?

15        A.   Yes.  We -- we certainly wished to undermine the Prosecution's

16     Variant A and B thesis, yes.

17        Q.   Right.  And also that the six strategic goals were not inherently

18     criminal, and it was policy, not a criminal plan?

19        A.   Correct.

20        Q.   And you received instructions as to what the goal was in terms of

21     the strategic goal for the Defence from Mr. Krajisnik before starting to

22     cross-examine the first witness in February of 2004?

23        A.   You're moving -- you're using the phrase "Strategic goal" quite

24     separately from the six strategic goals here.

25        Q.   Yes.

Page 688

 1        A.   Well, yes, though after all, we were counsel, so the actual --

 2     the actual strategy of running the trial was for us based on what

 3     Mr. Krajisnik instructed us.

 4        Q.   Yes, but you as counsel, based on the instructions of

 5     Mr. Krajisnik, had identified those specific goals which we had just

 6     discussed as being the principle areas that you wanted either to bring

 7     out positively or to the extent that a witness was commenting on them

 8     challenge for the purposes of setting up the Defence case that you knew

 9     would be coming; correct?

10        A.   Yes, and based on the instructions Mr. Krajisnik.  After all,

11     some of these goals were blindingly obvious without any serious need for

12     discussion.

13        Q.   Right.  Now, the Appeals Chamber can look at the opening

14     statement, but I -- that you made to the Trial Chamber in -- I believe

15     it's October of 2005.

16        A.   Yes, that would be right.

17        Q.   But all of the goals were identified there as basically issues

18     that the Defence had identified and was undertaking to prove, for

19     example, that Mr. Krajisnik was a mere president of the Assembly and had

20     no authority to make decisions in relation to the crimes that were

21     committed.

22        A.   Well, I don't specifically remember any more, but -- but, yes, it

23     would surprise me if such matters were not included in the opening

24     statement, yes.

25        Q.   Right.  And, in fact, the Defence case that you did present was

Page 689

 1     directed at establishing all of the Defence goals that had been defined

 2     before the Prosecution commenced and would do its very best to show the

 3     Trial Chamber a view that was different than presented from the

 4     Prosecution in this case.

 5        A.   Yes, correct.

 6        Q.   And it's my understanding that Mr. Krajisnik had always intended

 7     to testify on his own defence.

 8        A.   That was absolutely clear, yes.

 9        Q.   Yes.  And it was made clear to the Chamber that he would be

10     testifying subject to a 98 -- a favourable 92 bis decision, both by you

11     and by Mr. Krajisnik during the course of the Prosecution case?

12        A.   That's correct, and it's -- it's relatively unusual, but it was

13     absolutely crystal clear that Mr. Krajisnik intended to do that, yes.

14        Q.   Now, in terms of the allocation of time that was devoted to the

15     Defence case, Mr. Krajisnik testified for 40 days, did he not, in total?

16        A.   Yes, I think it was something like that.  Its is a matter of

17     record, but yes, that sounds right.

18        Q.   And in terms of the presentation of his evidence, I think

19     initially, in-chief it was 23 days?

20        A.   Again that sounds right, yes.

21        Q.   Right.  And were there any areas in his examination-in-chief that

22     you felt were not fully articulated?

23        A.   I didn't feel at the time when his examination-in-chief finished

24     that there were any glaring gaps, no.

25        Q.   And during the decisions in -- in who would be called for the

Page 690

 1     Defence was Mr. Krajisnik involved in those discussions?

 2        A.   Of course.

 3        Q.   When a witness was called to the stand we have it suggested by a

 4     witness previous that sometimes Mr. Krajisnik was surprised that the

 5     witness was in the witness box.  Do you recall calling a witness that you

 6     had not previously discussed with Mr. Krajisnik?

 7        A.   No, I don't.

 8        Q.   In preparing for the witnesses called in the Defence case, did

 9     you consult actively with Mr. Krajisnik and get his advice on what

10     questions should be put to the witness and how the witness might help him

11     in his case?

12        A.   Yes, in the sense that -- if -- if you means Mr. Josse and/or me,

13     yes.

14        Q.   Yes.

15        A.   Because by that time Ms. Loukas had left the case.

16             MR. KREMER:  If we could just go for a moment to closed session,

17     please.  I'm going to deal with some private or sealed documents.

18             JUDGE POCAR:  Madam Registrar.

19                           [Private session]

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

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25   (redacted)

Page 691

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10                           [Open session]

11             THE REGISTRAR:  Your Honours, we're back in open session.

12             MR. KREMER:

13        Q.   Now, just getting to -- getting back to sort of the Defence

14     strategy that you implemented, there were a couple of points that I want

15     to add to the list of areas that are part -- were part of the Defence

16     strategy during the Prosecution case and also during the Defence case and

17     that was an attempt to show that Mr. Krajisnik had no knowledge of the

18     crimes on the ground?

19        A.   Yes.

20        Q.   And another was an attempt to show that Mr. Krajisnik, A, that

21     there was no common plan and no criminal plan or -- and that

22     Mr. Krajisnik was not part of it?

23        A.   Yes.

24        Q.   Yes?

25        A.   Yes and yes.

Page 703

 1        Q.   Now, ultimately you did file a final trial brief in this

 2     proceeding, did you not?

 3        A.   Yes.

 4        Q.   And all of the issues that were part of the Defence strategy were

 5     covered in your final trial brief both in terms of attacking the

 6     Prosecution portrayal of those issues and in showing why the Defence

 7     portrayal was to be preferred?

 8        A.   Yes.  I -- I believe so.

 9        Q.   And I just want to confirm a few points about joint criminal

10     enterprise or JCE.  When you accepted the case, you understood that one

11     of the central planks, I think is the word used in your opening

12     statement, of the Prosecution case against Mr. Krajisnik was, in fact,

13     the theory of joint criminal enterprise; is that correct?

14        A.   Well, on the footing that I must have read the indictment before

15     I accepted the case.  The answer is yes.  I don't think I'd had ever

16     heard much about joint criminal enterprise before that in my life, no.

17        Q.   Before you started the trial in February of 2004, did you fully

18     familiarise yourself with the legal concept of joint criminal enterprise?

19        A.   Yes, we certainly did that, and Chrissa Loukas did it as well

20     because after we were able to do that without getting any papers from

21     Mr. Brashich it's -- of course we were.  We had -- of course we had the

22     indictment.  It wasn't that we could do nothing at all.

23        Q.   And so some of the time spent in the early stages while you were

24     waiting for the papers was doing the legal research and the legal

25     thinking necessary to deal with some of the interconnected factual

Page 704

 1     challenges that you were expecting to meet later on in the case?

 2        A.   In the very early stages, I mean, in a way it was almost all we

 3     could do; but, in fact, it would have been a perfectly logical, sensible

 4     thing to do anyway at that stage as one of the first things I'm quite

 5     sure for both of us although Chrissa was a very experienced criminal

 6     lawyer.  I think that JCE as we know it here was a new animal to us.

 7        Q.   Yeah.  I don't think you've answered my question.  Did you do it?

 8        A.   Oh, sorry, beg your pardon, yes we did, yes.

 9        Q.   And so you were aware then of the elements of the mode of JCE

10     liability when cross-examining Prosecution witnesses?

11        A.   Yes, yes.

12        Q.   And in your final trial brief you argued both the JCE in the form

13     pleaded is not an appropriate mode of liability in this case and the

14     conditions for liability under JCE have not been met in the case.

15        A.   Yes, and we had some extra brains on the matter by that time.  We

16     had Ms. Butler, Michelle Butler, who was certainly a serious brain; and

17     we had and some very, very good intern working with us.  The answer is

18     yes.

19        Q.   And in fact Ms. Butler joined the Defence team in September of

20     2005?

21        A.   That's right.

22        Q.   And she -- approximately?

23        A.   Yes, it was around that time.

24        Q.   And she recruited some interns to assist in drafting of the final

25     trial brief?

Page 705

 1        A.   Yes.  They put together -- they analysed and they put together

 2     material for that purpose, yes.

 3        Q.   And on the subject of JCE, the trial brief has a section from

 4     pages 39 to 58 dealing with the subject?

 5        A.   I'll take your word for the numbers, yes.  It's -- yes, of course

 6     it has a section, yes.

 7        Q.   And to your knowledge was Mr. Karganovic ever asked to

 8     participate in the -- in any discussions where JCE was discussed?

 9        A.   Well, I don't know about that, but I very much doubt it, to be

10     frank.  I very much doubt it.  He wasn't even on the case, of course, by

11     the time we got to the final brief.

12        Q.   Yes.

13        A.   He'd left some months before.  No, I really don't think so,

14     unless he just happened to be in the room, but I don't think so.

15        Q.   During the course of your Defence of Mr. Krajisnik, do you think

16     that at any point you did not fulfil your professional obligation to

17     protect his best interests as a client?

18        A.   No.  My professional obligation just pained to do my best.  No, I

19     don't feel I -- sorry.  I feel I did fulfil my professional obligation,

20     yes.  I should say, sorry, just looking and being very analytical, of

21     course, my professional obligation isn't just to do my best, it's that my

22     best should be good enough; and so I want to be absolutely clear.  I

23     believe I did my best and I believe my best with my team did fulfil our

24     professional obligations.

25        Q.   And at the end of this case, it's my understanding that

Page 706

 1     Mr. Krajisnik asked that you and Mr. Josse be added to the list of people

 2     who were to assist him on appeal.  Do you remember having any discussions

 3     with Mr. Krajisnik about working on his appeal?

 4        A.   Actually, I'm not sure that -- I don't remember that I was to be

 5     added to that list.  I thought I wasn't, actually, but perhaps my

 6     memory's playing me tricks there.

 7        Q.   Okay.

 8        A.   I think Mr. Josse certainly was because Mr. Josse has, in fact,

 9     assisted in -- whether it's Mr. Nicholls' team or since he became amicus

10     curiae or when he was Mr. Krajisnik counsel, I don't know; but he's

11     certainly been involved.

12        Q.   And you mentioned that Mr. Krajisnik was a very difficult client

13     during the course of the trial.  On at least one occasion Mr. Krajisnik

14     sought to self-represent.

15        A.   Yeah.  Well, I don't blame him for being difficult.

16        Q.   No, no.

17        A.   But he was.  I mean, yeah.

18        Q.   Ultimately a compromise was met or reached with the Trial Chamber

19     and he was permitted to ask questions with the leave of the Chamber of

20     Prosecution witnesses and also of Defence witnesses?

21        A.   Yeah.  That was very unsatisfactory.  The -- I -- it was very

22     unsatisfactory.  I, as counsel, and I was after all counsel throughout, I

23     did not consider it in Mr. Krajisnik's interests to have that right

24     because he would exercise it.

25             I must say bluntly, Your Honours, that the circumstances in which

Page 707

 1     that arose, as far as I remember, related to the evidence of Mr. Bjelobrk

 2     and the reasons for Mr. Krajisnik being given that right, I -- in my view

 3     are not correct and proper reasons.  What happened was that we needed

 4     more time -- this is my recollection, it's the best I can do:  We needed

 5     more time to -- for Mr. Krajisnik to instruct me to complete

 6     cross-examination of Mr. Bjelobrk; and what I remember was that the Trial

 7     Chamber then suggested at some point, well, if Mr. Krajisnik knows all

 8     this detail, then why doesn't he take over some of the cross-examination,

 9     and I objected to that; and that was an improper reason for sidestepping

10     counsel and giving the client the right to ask questions.  It was -- it

11     was -- in fact, it fitted the whole approach because it was designed to

12     save time, and I think specifically to let Mr. Bjelobrk if possible

13     finish his evidence on a Friday, although I believe he did come back

14     later.

15             It was in my view quite an improper reason for doing it.  It was

16     an unfair decision because it was -- it was obvious that Mr. Krajisnik

17     would take advantage of it for which I don't blame him, but it was going

18     to be against his interests.  It also, and I expressed this to

19     Mr. Harhoff, one thing that I felt rather annoyed about was it caused

20     enormous conflict between Mr. Krajisnik and me as it was bound to do, and

21     it was -- it was extremely unhelpful, as I did tell Mr. Harhoff

22     specifically of course with a view to him passing it on.  It was

23     extremely unhelpful and caused absolutely unnecessary conflict between

24     Mr. Krajisnik and me; and it was absolutely contrary to his interests.

25     And by the way I sought specific advice from the ADC, the Association of

Page 708

 1     Defence Counsel and my own bar in England and received an endorsement

 2     from both of my position in continuing to object to the Trial Chamber's

 3     position on that.

 4        Q.   And you did object?

 5        A.   I did object.  I objected consistently.

 6        Q.   Yes.

 7        A.   Of course, I wasn't going to stand up every morning and object,

 8     but my objections were overruled.

 9        Q.   Right.  In terms of the material you've mentioned on several

10     occasions you had a very strong team at the end.

11        A.   Yeah, I did.

12        Q.   And during the course of the Defence case, would it be fair to

13     say that the team was strong as well?

14        A.   It varied.  It's bound to.

15        Q.   Right.  Is it fair to say that during the course of the Defence

16     case there were not the same crises or difficulties that you experienced

17     as a Defence team during the Prosecution case?

18        A.   Yes.  I think to be fair there weren't really quite the same

19     strings.  I think that has to be acknowledged.  I think the strains at

20     certain points -- not points.  The strains at certain points in the

21     Prosecution case, the physical strains, the demands were heavier, and we

22     were given some extra money as well in the last few months of the case.

23     But, yes, the team varied, and you're quite right the team we had right

24     at the very end, although small, was, I felt, very high quality.

25        Q.   Can you point to any part -- any witness in the Prosecution case

Page 709

 1     where you feel that your cross-examination was inadequate professionally?

 2        A.   Well, I haven't done the exercise of picking over the transcripts

 3     to see whether my own -- analyse to see whether my own cross-examination

 4     was inadequate.  Well, the answer is I haven't, no, but I haven't

 5     attempted the exercise.

 6        Q.   And have you attempted the exercise for the cross-examinations

 7     done by Chrissa Loukas or Mr. Josse?

 8        A.   No.

 9        Q.   So you're not able to point to a single witness where you can say

10     that the cross-examination that was either curtailed or ineffective

11     because of failure or lack of time to prepare, lack of ability to review

12     documents had an impact?

13        A.   Well, no because I haven't done the exercise, but I think when

14     one looks at the transcript one can see times I protested then we were

15     not given enough time.

16             MR. KREMER:  Those are my questions.

17             JUDGE POCAR:  Thank you.  Mr. Krajisnik -- I'm sorry,

18     Judge Shahabuddeen.

19             THE INTERPRETER:  Microphone, Your Honour, please.

20             THE WITNESS:  I'm sorry, Your Honour, I'm not hearing you.

21             JUDGE SHAHABUDDEEN:  I'm going back to your reasons for not

22     requesting an adjournment, a point about which Mr. Nicholls examined you.

23     Do I recollect right your net position this way, that you might have

24     reasons now as you sit there to question some of the decisions you took

25     in the past; but that at the time, in view of all the circumstances known

Page 710

 1     to you, those decisions then taken represented your honest, professional

 2     judgement.

 3             THE WITNESS:  Yes, Your Honour, that's correct.

 4             JUDGE SHAHABUDDEEN:  Could I ask you one other question, that is

 5     this:  You remember the bit about not more than 15 per cent of the

 6     overall material having been read?  Now, I don't have the material in

 7     front of me, but I recall this -- this much, that that was a statement

 8     attributed to you and not to your team.  What is your position on that?

 9             THE WITNESS:  In the sense I -- I think I was -- and then it

10     seemed that I was interrupting.  I was going to raise the question maybe

11     it was an hour ago as to when that point was put to me is whether what I

12     had said was that I had not read or my team and that was exactly -- Your

13     Honour has it, that was exactly a question I was raising, but then it got

14     passed over.  I beg your pardon, Your Honour.  So the question now is

15     whether -- whether I -- whether I was saying I had not read more than 15

16     per cent.

17             JUDGE SHAHABUDDEEN:  Yes.

18             THE WITNESS:  Your Honour, if -- if I said it I said it when I

19     said it.  I can't say that I would have any useful recollection now of

20     the precise position.

21             JUDGE SHAHABUDDEEN:  I collect your meaning this way, that you

22     were saying that you had not read more than 15 per cent of the material,

23     that you were not saying that your team had read not more than 15 per

24     cent.

25             THE WITNESS:  Your Honour, I don't know what I said, but actually

Page 711

 1     as far as the recollection is concerned --

 2             JUDGE SHAHABUDDEEN:  One last question would be this:  Who

 3     examined Mr. Krajisnik?  You said he gave evidence for 40 days, and 23 of

 4     those days were spent on the examination-in-chief.  Who examined him?

 5             THE WITNESS:  I did most of it.  Mr. Josse did -- I don't know

 6     whether it was two, three days or something like that much more.

 7     Mr. Josse dealt specifically with intercepts.  It might not be absolutely

 8     the only thing he dealt with, but a small number of days were set aside

 9     when Mr. Josse dealt with intercepts but it was -- the bulk of it was me.

10             JUDGE SHAHABUDDEEN:  I thank you.

11             THE WITNESS:  Thank you, Your Honour.

12             JUDGE POCAR:  Thank you.  Judge Meron.

13             JUDGE MERON:  Mr. Stewart, replying to Mr. Kremer a few months

14     ago I understood that you said that you did not know of any instance of

15     cross-examination by you or by Mrs. Loukas, which suffered from lack of

16     time or from inadequate preparation.  I must say I have the impression

17     and I will have to look at the transcript that in answering the Judges'

18     question later, earlier today, your answer was quite different.  I had

19     the impression that you said that your cross-examination did suffer at

20     least from the fact that you were not given adequate time and you had to

21     curtail your cross-examination on matters of importance.  Could you at

22     set me right on this seeming contradiction.

23             THE WITNESS:  Yes, Your Honour, I don't see a contradiction.  I'm

24     being asked whether I can point to specific witnesses and specific

25     examples; and the answer is:  No, I can't.  By name, no I can't because I

Page 712

 1     had not been reading the trial transcript of all my cross-examinations.

 2     Your Honour, I'm afraid I don't see a contradiction.

 3             JUDGE MERON:  As a general proposition.

 4             THE WITNESS:  As a general proposition.

 5             JUDGE MERON:  You maintain what you said earlier today that you

 6     cross-examinations did suffer or they did not suffer?

 7             THE WITNESS:  Your Honour, yes, they did.  I knew at the time.  I

 8     can remember without being able to name the particular witnesses, we were

 9     well aware on many occasions that our cross-examinations were suffering.

10             JUDGE MERON:  So the significance of your answer to Mr. Kremer is

11     simply that you cannot speak specifically to one particular

12     cross-examination.

13             THE WITNESS:  Your Honour, it's because the trial finished two

14     years ago, and I have not made it my business to read the trial

15     transcripts of the Krajisnik case.

16             JUDGE MERON:  So as a general proposition you maintain what you

17     said earlier, but I cannot point to specific cases.  I understand.

18             THE WITNESS:  Absolutely, Your Honour has it a hundred per cent

19     right.

20             JUDGE MERON:  Thank you so much.

21             JUDGE POCAR:  Thank you.  I will now turn to Mr. Krajisnik.

22             Mr. Krajisnik, you can re-examine the witness and you have 20

23     minutes to do so.

24             THE APPELLANT: [Interpretation] Thank you very much, Your

25     Honours.

Page 713

 1                           Re-examination by Mr. Krajisnik:

 2        Q.   [Interpretation] Mr. Stewart, on several occasions we heard you

 3     say today, let me just give you a couple of examples, that you did not

 4     have enough time to prepare and as you said you had to put out the brush

 5     fires as you went along; and by way of an example, at page 35 and page 36

 6     of today's transcript you said that you did not have enough time to

 7     examine crucial witnesses and this pertained for the most part to

 8     Mrs. Plavsic and Mr. Djeric, their examination.

 9             Now I have a question for you.  Today the Prosecutor put to you

10     what you wanted to do, to separate Krajisnik from the crime base because

11     you considered that there was no link between him and the direct

12     perpetrators, that he was not a member of the Presidency, that he was not

13     a member of the joint criminal enterprise, and that he was nothing but

14     the president of the Assembly and a member of the negotiating team.

15             Now, my question to you is:  This lack of time, the fact that you

16     did not have the capability to prepare properly, was that one of the

17     reasons why you fail to prove what you wanted to prove in your case?  And

18     Mr. Kremer provided us with specifics, and now I just pinpointed some of

19     the things that you wanted to do, that you planned to do.

20        A.   Mr. Kiseljak, I'm sorry, I -- Your Honours, I can't say in the

21     end what were the reasons, given the burden of proof's on the

22     Prosecution, but ultimately I can't say what were the reasons why we

23     failed to prove what we wanted to prove.  That -- there seems to be much

24     more involved in that, Your Honours, than questions of time.  It's a

25     question of the actual evidence, and I don't feel that Your Honours would

Page 714

 1     wish me to get into that.

 2        Q.   Very well.  Thank you.  I hope that the Appeals Chamber will take

 3     a position on the weight or to what extent the lack of time led to your

 4     inability to carry out the tasks that you assigned to yourself.

 5             Now I have three brief questions.  I hope I will be able to ask

 6     questions directly, because there is a misunderstanding, and that

 7     pertains to Davidovic and Mr. Karganovic.

 8             I would like to remind you to the trial -- of the trial.  Do you

 9     recall what was the basis for the examination by Chrissa Loukas of

10     Mr. Davidovic in which she actually accused him of having extorted

11     somebody?

12        A.   I've got to say, Mr. Krajisnik, I do not have a detail

13     recollection of this.  No, I don't.

14        Q.   And if I were to tell you now that Ms. Loukas had in front of her

15     a statement prepared by the investigators does that refresh your

16     recollection?

17        A.   Mr. Krajisnik, what I remember is that -- that when I did as I

18     said I did, I did specifically inquire.  It was my responsibility to do

19     that given the furor which had arisen.  As lead counsel, I had to do

20     that.  All I can say is that when I did look into it with Ms. Loukas

21     particularly I reach the conclusion as I described in my answers to

22     Mr. Kremer's questions, but I don't remember now the details, I'm afraid

23     and even refreshment of my memory is, I think, not going to achieve that.

24        Q.   Fair enough.  One more question.  I hope that I will have no more

25     than one or two questions.

Page 715

 1             The Prosecutor today put a fact to you, reminded you of the fact

 2     that Krajisnik prepared a lot of materials for you and presented those

 3     materials to you, and now I would like to ask you this:  It was

 4     impossible for us to communicate directly because I don't speak English

 5     and, Mr. Stewart, you don't speak Serbian.

 6        A.   That's right.

 7        Q.   Were the negotiating resources a bottleneck -- or, rather, the

 8     interpretation resources, was that a bottleneck that prevented everything

 9     that I had prepared from being presented to you?

10        A.   Mr. Krajisnik, it was inevitably a frustration for you, and it is

11     inevitably and it was inevitably an extra element of the work that we had

12     to do.  So that whether it was Ms. Cmeric when she was the case manager,

13     and she was really more than a case manager; she was terrific in all

14     sorts of ways, whether it was Mr. Sladojevic later for whom you know I

15     have the absolute highest regard, the material had to go through them.

16     They are very good, very intelligent people.  They did some sifting,

17     Mr. Krajisnik.  They didn't simply pass on everything you did.  They'd

18     still be translating now.  That's a slight exaggeration, of course, but

19     it would have taken them a very long time.

20             But your material was considered, Mr. Krajisnik, it was.  It was

21     done as a way it should be through a team.  It was done by going through

22     the various members of the team in a suitably delegated manner.

23        Q.   And my last question:  You mentioned here and, well, this is a

24     fact, that I testified for 40 days.  Do you think that the testimony by

25     the accused could have rectified the disparity between the number of

Page 716

 1     witnesses called by the Prosecution and those called by the Defence, or

 2     was this done out of a necessity because we could not prepare the

 3     appropriate number of witnesses?

 4        A.   Sorry, was -- was calling you as a witness done out of necessity?

 5     Is that -- is that your question?  I'm not clear.  I'm sorry, perhaps I'm

 6     just --

 7        Q.   No, no.

 8        A.   [Overlapping speakers]

 9        Q.   Let me repeat the question now.

10        A.   Please.

11        Q.   Do you consider that calling the accused to testify, he proceeded

12     to testify for 40 days, could it have made up for the disparity between

13     the number of witnesses called by the Prosecution and witnesses called by

14     the Defence which did not manage to prepare a larger number of witnesses,

15     if I may add that?

16        A.   Well, Mr. Krajisnik, I think the best way I can answer that

17     question you -- you made it absolutely clear right from the outset that

18     you were going to give evidence.  I think I would take it that whatever

19     the ultimate value of your evidence in broad terms, the accused himself

20     is worth quite a lot of other witnesses because inevitably you had and

21     have very considerable knowledge of the subjects at hand, so the -- if

22     you're balancing on the scales, yes, you must have been -- how it would

23     work out for you was another matter, but you might have been worth quite

24     name of witnesses, yes.

25             THE APPELLANT: [Interpretation] Your Honours, thank you very

Page 717

 1     much, and I would like to give back to you the five minutes that you've

 2     gifted me at the beginning.  Thank you very much.

 3             JUDGE POCAR:  Thank you, Mr. Krajisnik.

 4             Well, this concludes the examination of the witness.

 5     Mr. Stewart, the Appeals Chamber thanks you for giving testimony.

 6             THE WITNESS:  Thank you, Your Honours.

 7             JUDGE POCAR:  And you may be excused now.

 8             THE WITNESS:  Thank you.

 9                           [The witness withdrew]

10             JUDGE POCAR:  This -- this also concludes this evidentiary

11     hearing.  The Appeals Chamber will now rise.  The hearing's adjourned.

12                           --- Whereupon the Appeals Hearing adjourned at

13                           6.59 p.m.

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