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.
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
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
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
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
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
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
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]
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
22 THE APPELLANT: [Interpretation] My apologies. Can I take the
24 JUDGE POCAR: Yes, sure.
25 THE APPELLANT: [Interpretation] I was now advised by
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
1 [Private session] [Confidentiality partially lifted by order of Chamber]
2 THE REGISTRAR: Your Honours, we're in private session.
3 JUDGE POCAR: Thank you. Please, Mr. Krajisnik.
4 MR. KRAJISNIK: [Interpretation] Thank you.
5 Q. I should like to direct Mr. Stewart to the documents I hope you
6 have with you, namely three documents, AD4, AD5, and AD6.
7 A. Mr. Krajisnik, may I make it clear I have brought nothing with
8 me, nor do I know which documents the reference numbers you give refer
10 JUDGE POCAR: May I ask to give the witness these three documents
11 mentioned by Mr. Krajisnik, AD4, AD5, and AD6.
12 THE WITNESS: Thank you. Yes. Thank you. I have them. Well, I
13 have three documents, Mr. Krajisnik, Your Honours.
14 MR. KRAJISNIK: [Interpretation]
15 Q. This is your letter to the Chamber with an enclosed memo and
16 notes that you made during the -- your meeting with Judge Orie and
17 Mr. Zahar. Did you have occasion to review the material before and are
18 you familiar with the material? If not, you can have a look at it now.
19 A. Mr. Krajisnik, yes, I have the three documents. The letter with
20 a fairly long memorandum attached to it, and then, yes, the note of my
21 meeting with Judge Orie and the note of my meeting with Mr. Zahar. The
22 answer is, yes, I have reviewed all of -- well, what looked like copies
23 of these same documents. I have reviewed them carefully within the last
24 48 hours, yes.
25 Q. Can you confirm, Mr. Stewart, for Their Honours that these
1 documents were authored by you, that you wrote them or participated in
2 their drafting?
3 A. Yes, Mr. Krajisnik, I can. The -- the longer documents attached
4 to the letter of the 28th of October and possibly some of the letter
5 itself, but the longer document was actually drafted together with my
6 co-counsel, Mr. Josse. I think we pretty much split it 50/50, but right
7 now I wouldn't know exactly which bit came from which of us. But, yes,
8 it's got my name on it of course. If it was sent -- signed by me, yes.
9 Q. Thank you, Mr. Stewart. I'm happy with your answer.
10 Is there anything in the documents that you would wish to correct
11 at this time? You said that you have had occasion to remind yourself of
12 the contents of the documents over the past 48 hours.
13 A. Yes. There are two very small corrections. I'm ignoring
14 punctuation and things and so on, Mr. Krajisnik. There are two very
15 small corrections. In the note of the meeting with Judge Orie, Monday,
16 31st of October, in the penultimate paragraph on the first page, the
21 And there's the -- the word "days" is missing the next page in the
22 middle, but again I think that's pretty obvious but almost in the middle
23 of the long paragraph it says, "NS was near the end of the 120," and
24 that's a 120-day final cut-off but that's pretty trivial. Otherwise,
25 Mr. Krajisnik, I haven't seen anything, and I could confirm that so far
1 as these documents express opinions they are and remain my honest opinion
2 and so far as they express facts, those facts are absolutely and
3 completely true. Facts stated by me, assert by me, that is.
4 Q. Does this mean that you stand by the entire contents of the three
5 documents? Is that a conclusion we can draw, Mr. Stewart?
6 A. Your Honours, that's correct, yes. I confirm that.
7 Q. Thank you.
8 MR. KRAJISNIK: [Interpretation] I would kindly ask to go back
9 into open session now, Your Honours.
10 JUDGE POCAR: Yes. Madam Registrar.
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
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
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
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 --
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
1 Mr. Brashich, Mr. Dan Brashich. I was told that straight away by the
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
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
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
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
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
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
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.
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
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
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
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
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
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
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 --
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
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
10 JUDGE MERON: Thank you, Mr. Stewart.
11 JUDGE POCAR: Well, Mr. Krajisnik, may I ask you to continue your
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
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
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
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."
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,
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
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
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
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.
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]
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
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
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
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
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
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
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.
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.
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,
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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.
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
1 there was at least a possibility that it might have been granted by three
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
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] ...
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
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
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.
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
25 Q. Let me go to the next question, please. At that time, the 3rd or
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
10 Q. Let me leave that aside. Had you examined the Prosecution's
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.
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.
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.
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.
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
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
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?
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.
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
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
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
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
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
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
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.
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
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.
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
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?
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
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
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
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
25 A. Well, we -- we did our best to sift the material that came from
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;
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
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 --
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.
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
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.
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.
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
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
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
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
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,
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] [Confidentiality partially lifted by order of Chamber]
20 THE REGISTRAR: Your Honours, we're in private session.
21 MR. KREMER:
22 Q. I just want to deal with a few of the documents that had been
23 tendered during the course of the 115 applications. I'm going to start
24 with Exhibit -- I think it's AD1, which is the letter of George Mano.
25 A. Oh, yes. I haven't got that.
1 Q. No, I just --
2 A. Yep.
3 Q. It's my understanding that you became aware of the letter
4 sometime in September, October of 2004.
5 A. Yes, I think it was September, yes.
6 Q. And you were allowed to provide a response --
7 A. Yes.
8 Q. -- to the letter by Registry?
9 A. Well, I wasn't allowed. They couldn't stop me. I can write to
10 the Registry without their permission.
11 Q. All right. And in terms of the letter itself, perhaps you can
12 just give me your comment to the allegations in the letter to the extent
13 that you remember what you said?
14 A. I haven't read it for a very long time. I'll do my best to
15 remember it. The -- there was a certain amount of general personal abuse
16 and character assassination, as I remember; but he had some big complaint
17 about the agreed facts process.
18 I do remember that. I -- George Mano had no legal qualification
19 that I remember. He had very little idea at all, but I didn't blame him
20 for it, of what we were trying to do in a legal case. What I did blame
21 him for was not appreciating that he had very little idea. And he and I,
22 we never became great friends I've got to say. He was very resentful of
23 the fact that when he asked me if I would ask the registrar if he could
24 go and see Mr. Krajisnik on his own because, "I've got a few questions to
25 ask Mr. Krajisnik," I said, "No I wouldn't," and he asked me, "Why not?"
1 I said, "Because there wasn't the slightest chance that the registrar
2 would give such permission," and I didn't want it anyway.
3 And frankly, I regarded the idea -- he took that very badly, but
4 I regarded the idea of an intern getting shirty with me because I
5 wouldn't let him go and see Mr. Krajisnik on his own about something,
6 frankly, it was fantastic. I mean, he really had a nerve. He was
7 extremely importunate. I remember taking him along, which is -- I mean,
8 it's something I like to do to involve interns. I took him along to a
9 meeting with Mr. Harmon and Mr. Tieger, I think, was there as well and
10 Mr. Hannis as well on agreed facts.
11 At some point Mr. Harmon I could see was slightly stunned, was
12 slightly stunned to have George Mano pipe up from the end of the table,
13 "I can't accept that, Mr. Harmon." I mean, what a nerve he had. He
14 seemed to think that what we were supposed to do was learn all about Serb
15 history, whereas our view was we should learn enough about Serb history
16 to be able to run the case.
17 I could go on. I mean, that's what I seem to remember. I
18 remember some extremely scurrilous personal stuff as well. I remember
19 some actual factual rubbish. I remember him talking to me about going to
20 Spain for two weeks, which I didn't go. I went with three of my children
21 and I worked every morning until they saw fit to get up which was about
22 lunchtime for them at that time. And I went to Croatia for a few days
23 with my one-year-old then child which didn't seem unreasonable for a few
24 days in the summer. The whole thing -- I'm sorry it was scurrilous and
25 it was rubbish that letter, and I was incensed by it, actually. I must
1 say and now you remind me of it, I am again.
2 Q. Okay let's --
3 A. I'm sorry.
4 Q. He quotes you as having said lawyers say the client is the enemy.
5 Do you recall ever saying that?
6 A. Yes I do. That was something some lawyer friend of mine in
7 Latvia said that the senior partner of their firm told the juniors always
8 remember the client is the enemy; but it was a jocular way of saying what
9 we all know that clients lack judgement about their own case and you have
10 to restrain them and you have to override them sometimes with your own
11 judgement. That's all it was.
12 Q. So he misunderstood you?
13 A. Well, I -- whether he misunderstood me, I think is rather
14 charitable to say he misunderstood me. He misrepresented me in his
15 letter, whether he truly misunderstood me, I don't know.
16 Q. I'm going to AD2 which is a statement by --
17 A. Which the rest of the stuff in his letter is rubbish as well.
18 Q. All right. I'm going to go to a statement of Stefan Karganovic,
19 who I understand was your case manager from April 2005 to May 2006.
20 A. Yes. April, May, yes, that's right; yeah, yeah, April May 2006
22 Q. He also makes the allegation that you were fairly uninterested in
23 the historical and factual background of the case. How would you respond
24 to that comment?
25 A. Same answer, I think. I was interested enough -- as a matter of
1 fact, Mr. Krajisnik, as far as I remember, Mr. Krajisnik who legitimately
2 or not didn't hesitate to be critical, why shouldn't he given what was at
3 stake for him; but I don't remember Mr. Krajisnik being particularly
4 critical about that, certainly not when it came to his own evidence, he
5 was rather complimentary about my cross with things.
6 Q. And on the witnesses who offered political evidence was
7 Mr. Krajisnik heavily involved in the preparation for their
9 A. Yes, he was.
10 Q. Examination?
11 A. Yes, he was. I don't think -- we never refused to go see
12 Mr. Krajisnik either, if I remember. I'm not saying absolutely never,
13 after all there might have been odd days; but we made ourselves available
14 to him and he to us, I will compliment him on that even though it's his
16 Q. There's a suggestion that the Defence during the time of
17 Stefan Karganovic could be best described as improvisation?
18 A. That certainly describes Mr. Karganovic's work, but the -- a lot
19 of it -- he was a first-class interpreter and translator, by the way. No
20 question about it, about the best that I've come across, Mr. Karganovic,
21 but it's improvisation. I've -- I've described the way the case was. If
22 that's intended to be a description of what I've described, then it's
23 correct. If it's intended to be something different, then it's not
25 Q. Let's move on to Exhibit AD4 which you have in front of you, the
1 letter to Mr. Zahar --
2 A. Oh, yes.
3 Q. -- and the attachment which is in that exhibit. What do you
4 recall the -- to be the circumstances under which you prepared this
6 A. Tremendous castigation of the Defence team by Judge Orie publicly
7 and in court orders which in one case was gratuitously renamed to -- from
8 the application in order to contain a direct disparagement of the
9 Defence, when in fact we were -- we were really working hard, and we were
10 really doing, I felt in the circumstances, a good job in very difficult
11 circumstances, and I felt given what had been impose on us. The end of
12 the Prosecution case was an absolute nightmare, the last couple of
13 months, June, July 2005, absolute nightmare; and as I recall it here
14 Chrissa Loukas had left the case exhausted and had been exhausted even
15 before she'd finished on the case. We had Mr. Josse as new counsel. We
16 were -- we were struggling, and we were doing our best, and it seemed not
17 to be accepted that we were really trying hard. So those were the
18 circumstances. We felt we weren't being listened to as well.
19 Q. At any point during the course of your representation of
20 Mr. Krajisnik did you consider that you could no longer represent his
21 best interests and offer to resign the case?
22 A. It wasn't an option because the -- when Chrissa Loukas applied to
23 leave the case as early as October 2004, she wanted to go home. I mean
24 she came back from the summer recess in 2004, and she wanted to go home
25 to Australia, I mean; and the Registry made it perfectly clear it wasn't
1 going to happen. They weren't going to contemplate any change of the
2 counsel team. Eventually of course we did manage to organise a change
3 and it took real difficulty, cost neutral for the Registry, organised
4 that change which took a lot of work to Mr. Josse, but, no, I was -- the
5 directive on assignment of Defence counsel does not allow me to resign.
6 I also actually did say to Mr. Krajisnik quite early on when -- I think
7 probably around the time that Chrissa Loukas put in her application I did
8 say to him, "Mr. Krajisnik, I will stick with you to the end of this
10 Q. Because you viewed it as your professional obligation?
11 A. And I wanted him to know because he had people wanting to leave,
12 dropping away. He didn't like that. And I promised him that I would
13 stay with him to the end of the case, and he took it in the right spirit.
14 Actually, I've got to say Mr. Krajisnik was appreciative and always took
15 that in the right spirit, and of course I did.
16 Q. Let's just deal with one point that appears at page 7192, and it
17 deals with the problem of the Defence as a result of Mr. Krajisnik not
18 making his contribution to the Defence team.
24 A. It certainly had a -- it certainly had a negative impact. It --
25 it had to. But actually, I -- I said to the Registry, and I think I
1 probably must have said it to the Trial Chamber at some stage that what
2 this case really needed to be done at the pace at which the Trial Chamber
3 eventually settled down to, what this case really needed was three
4 counsel, or more than two let's say.
5 Q. And did you eventually get three counsel?
6 A. No, we didn't.
7 JUDGE POCAR: Mr. Kremer, we have to make a break. Is that an
8 appropriate moment?
9 MR. KREMER: Yes, whatever pleases the Court.
10 JUDGE POCAR: So can we break now for 15 minutes?
11 --- Recess taken at 6.03 p.m.
12 --- On resuming at 6.18 p.m.
13 JUDGE POCAR: We resume the hearing. I give the floor to
14 Mr. Kremer to continue the examination.
15 MR. KREMER: Thank you.
16 JUDGE POCAR: The cross-examination.
17 MR. KREMER:
18 Q. Mr. Stewart, just a few more questions and then we'll go --
19 THE INTERPRETER: Microphone, please.
20 MR. KREMER: I'm sorry.
21 Q. Mr. Stewart, just a few questions and then we'll return to open
22 session. I'm referring to paragraph 9 of Mr. Karganovic's letter. I
23 just want to -- I'll read you what he says and ask for your comment. He
25 "It seemed that the Defence team did not have a plan according to
1 which it operated, particularly in the phase when the Defence started to
2 present its evidence and no longer just reacted to some moves of the
3 Prosecution. The approach was more than -- more often than not
4 experimental rather than functionally directed."
5 How do you respond to that?
6 A. I don't agree.
7 Q. Did you in fact have a plan according to which the Defence team
8 operated when the Defence started?
9 A. Well, yes, we did, and Mr. Josse is a very experienced counsel,
10 and we -- we talked it through. I've got to say, we didn't really
11 involve Mr. Karganovic in those discussions.
12 Q. And when Mr. Mano was working as an intern was he involved in
13 discussions about legal strategy, trial strategy?
14 A. No.
15 Q. And was Mr. Karganovic invited to meetings between you and
16 Mr. Josse and the other legal assistants to talk about legal or trial
18 A. We had. I've got to say -- I mean, Mr. Karganovic is a very
19 affable member of the team. The team often met in all sorts of ways and
20 of course we always -- not always but nearly always had Mr. Karganovic
21 with us whenever we went to see Mr. Krajisnik, but I mean a huge amount
22 of talking went on between Mr. Josse and me without anybody else there at
23 all, as you'd expect.
24 Q. Now, Mr. Karganovic told the Court during the course of his
25 testimony that he had told both you and Chrissa Loukas that his inquiries
1 in respect of the allegations being made -- or to be made to
2 Mr. Davidovic were false; and notwithstanding his telling you that on the
3 27th of June, in the morning of the hearing in the afternoon
4 Chrissa Loukas asked him questions regarding whether he had extorted
5 money from a certain doctor. Do you remember that?
6 A. I remember a tremendous issue about the cross-examination of
7 Mr. Davidovic by Ms. Loukas. I do. But what I don't remember -- I'm
8 sorry, this is a suggestion that Chrissa Loukas already knew that the
9 allegations were false before she put them to the witness.
10 Q. And you knew too. That's the allegation that Mr. Karganovic put
11 to the Court last week.
12 A. That's untrue. That's absolutely untrue. Well, in the sense
13 that I'm absolutely sure it's untrue in relation to Chrissa Loukas,
14 because unless she was completely lying to me about this particular
15 issue, I'm absolutely confident that this is false in relation to
16 Chrissa Loukas; and it's certainly false in relation to me.
17 Q. All right.
18 MR. KREMER: Perhaps we could go back into open session, Your
20 JUDGE POCAR: Yes, please, Madam Registrar.
21 THE WITNESS: I'm sorry, Your Honours, can I be very clear
22 because this is -- because after all, I know Mr. Karganovic gave his
23 evidence in closed session; but this is a direct allegation by
24 Mr. Karganovic that Chrissa Loukas, knowing that the information she was
25 going to be putting to the witness was false nevertheless went ahead
1 and -- and put it. Is that -- is that what Mr. Karganovic was saying?
2 Can I -- I'm sorry if I'm repeating myself, but I'm rather startled. Is
3 that how far it goes?
4 MR. KREMER:
5 Q. That was my interpretation of it. Perhaps I can read you what
6 Mr. Karganovic said. I'm now referring to 484, 485 of the transcript:
7 "What specifically did you tell Ms. Loukas about your telephone
9 That's with the witness saying it was false:
10 "I told Ms. Loukas that the doctor said that the extortion that
11 was alleged on the part of Mr. Davidovic did not take place. The doctor
12 denied the allegation that was made by Mr. Krajisnik's investigators.
13 "All right. And were you present in court when the allegation
14 was put to Mr. Davidovic about this fact? Is that correct?
15 "I'm sure I was."
16 And he then a question later on:
17 "Did you tell Mr. Stewart that you were concerned about the
18 cross-examination that was being actively objected to by the Prosecution
19 continuing when you told her that the witness did not stand by the
20 investigator's statement?
21 "Answer: The Defence," meaning both Ms. Loukas and Mr. Stewart.
22 "Were both aware of the outcome of my telephone conversation and
23 the speculation was that Mr. Davidovic was such a powerful and
24 intimidating figure that even though these people may not have been hurt
25 by him, they did not dare to talk about it, so that was their view of
2 Do you recall Mr. -- sharing that opinion with Ms. Loukas after
3 you were made aware by Mr. Karganovic of the outcome of his telephone
5 A. No. I -- I don't. I -- I -- I did at the time. I'm sorry, I
6 really do not remember all the details and ins and outs, but at the time
7 it was a very big issue; and I did speak very specifically to
8 Chrissa Loukas about it.
9 The Trial Chamber were very concerned about it. I came to the
10 conclusion that although -- and I'll bluntly put it this way: Although
11 Chrissa Loukas's cross-examination had gone right up to the line on what
12 really could very punctually and very directly be put to the witness, it
13 hadn't crossed it; and I think the idea that -- that -- what I seem to be
14 reading here is the idea that Mr. Karganovic was some monitor of ethical
15 standards, some protector of ethical standards, which the other two of
16 us, Ms. Loukas and me failed to meet, well that's just not so.
17 Q. I'm going to put it to you simply, sir. Did Mr. Karganovic tell
18 you that the result of his telephone inquiry was that the witness who is
19 alleged to have been the subject or the victim of the extortion by
20 Mr. Davidovic had said that the allegation was false? Did he tell you
22 A. I -- I --
23 Q. On the 27th of June --
24 A. Oh, the 27th of June.
25 Q. -- 2004 before the witness testified?
1 A. No, I'm sure he didn't. There was a lot of discussion
2 afterwards, and I do remember becoming very unhappy about the reliability
3 of the information acquired by Mr. Karganovic. I -- I had been, and I --
4 what Chrissa Loukas put to the witness, it merited investigation to see
5 where we'd gone with the results that I've said, but -- but the -- the
6 idea that we were told this in advance in this way and nevertheless went
7 ahead, no, I don't -- I don't remember the dates and so on, but I -- no,
8 I don't accept that at all.
9 MR. KREMER: Open session, please.
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.
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
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
19 Q. And in fact Ms. Butler joined the Defence team in September of
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?
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
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
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
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
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
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
1 to you, those decisions then taken represented your honest, professional
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
25 THE WITNESS: Your Honour, I don't know what I said, but actually
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
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
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
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
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
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
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
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.
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
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
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.