1 Friday, 12 May 2000

2 [Status Conference]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 10 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Good morning, Your Honour.

8 Case number IT-96-21-A.

9 JUDGE HUNT: Appearances, please.

10 Prosecution.

11 MR. YAPA: May it please Your Honour. I'm

12 Upawansa Yapa, appearing for the Prosecution, with

13 Mr. Christopher Staker, Mr. Norman Farrell; Mr. George

14 Huber, case manager.

15 JUDGE HUNT: Thank you very much.

16 For Mr. Delalic.

17 MR. ACKERMAN: Good morning, Your Honour.

18 I'm John Ackerman, appearing on behalf of Mr. Zejnil

19 Delalic.

20 JUDGE HUNT: And is your client here?

21 MR. ACKERMAN: He is not, Your Honour.

22 JUDGE HUNT: Thank you.

23 For Mr. Mucic.

24 MR. KUZMANOVIC: Good morning, Your Honour.

25 Tom Kuzmanovic here on behalf of Mr. Mucic.

1 Mr. Morrison is sitting as a judge and is not available

2 today.

3 JUDGE HUNT: Thank you very much.

4 For Mr. Delic.

5 MR. KARABDIC: [Interpretation] [Microphone

6 not activated]

7 JUDGE HUNT: I'm sorry to ask you to repeat

8 that, but you didn't have your microphone on.

9 MR. KARABDIC: Excuse me. I am Salih

10 Karabdic, barrister from Sarajevo. With me is my

11 colleague, Tom Moran, from Houston, Texas.

12 JUDGE HUNT: Yes. Thank you.

13 And for Mr. Landzo.

14 MS. SINATRA: Good morning, Your Honour. I'm

15 Cynthia Sinatra, and along with Peter Murphy, we

16 represent Esad Landzo.

17 JUDGE HUNT: Thank you very much.

18 Now, each of the appellants who are present,

19 are you able to hear the proceedings in a language

20 which you understand?

21 Mr. Mucic.

22 THE APPELLANT MUCIC: [Interpretation] Yes,

23 Your Honour.

24 JUDGE HUNT: Mr. Delic.

25 THE APPELLANT DELIC: [Interpretation] Yes.

1 JUDGE HUNT: And Mr. Landzo.

2 THE APPELLANT LANDZO: [Interpretation] Yes.

3 JUDGE HUNT: Thank you.

4 The principal purpose of this preliminary

5 conference is to sort out, if we can, the order in

6 which the various groups of the grounds of appeal will

7 be argued, the identity of the counsel who are going to

8 take the principal burden of the argument, and the

9 estimates of time. We have got a motion which was filed

10 by the three appellants who are present, but that was

11 stood to one side whilst you all considered the

12 matter.

13 I notice, from an assignment for you,

14 Mr. Ackerman, that you say you will not be here for the

15 whole week, or you will not be available for the whole

16 week that the appeal has been fixed. That sounds as if

17 what I'd suggested on the previous occasion should be

18 adopted, and we put the grounds of appeal relating to

19 your client on first. There is what I might group as

20 the command responsibility, Common Article 3, and

21 protected persons. Is that right?

22 MR. ACKERMAN: Your Honour, I will be here

23 through noon Thursday of the week we're arguing.

24 JUDGE HUNT: Yes.

25 MR. ACKERMAN: So we can put it on at the

1 Court's convenience, as long as I can be finished with

2 all the Delalic issues by noon on Thursday.

3 JUDGE HUNT: Well, I should hope that you

4 will be.

5 MR. ACKERMAN: I should hope so too. I know,

6 however, there are going to be some evidentiary matters

7 that may be somewhat lengthy, and I just wanted to make

8 sure that I had concluded with the Delalic issues prior

9 to that.

10 Beyond that, I really don't -- it's not

11 important to me the order in which we do things. But

12 most of the Delalic issues are unique to that case in

13 any event. There is a command responsibility issue in

14 Delalic but it's just kind of at the periphery of that,

15 and the main command responsibility issues, I think,

16 are going to be argued primary by Mr. Moran. I will

17 only spend a very brief time on the Prosecution's

18 suggestion that the law is to be expanded in that

19 regard.

20 JUDGE HUNT: Yes. The matters in which

21 evidence is likely to be called would be the Judge

22 Odio-Benito grounds, both of them, and Judge

23 Karibi-Whyte grounds. I think those are the only ones,

24 so they obviously should go to the bottom of the list.

25 The proposal I put forward last time, for

1 everybody's consideration, was that we should start

2 with the command responsibility.

3 That's the Prosecution's burden, I would

4 think, Mr. Yapa. Have you any problem going first on

5 that?

6 MR. YAPA: We do not have any problem because

7 we have appealed against the acquittal of Delalic, and

8 this is one of the grounds that we'll be urging. So we

9 do not have any problem starting first, or going

10 first.

11 JUDGE HUNT: Very well, then. We will have

12 command responsibility first, the Prosecution leading

13 off.

14 Mr. Ackerman, you say you are going to say

15 very little about this, but you are a respondent to the

16 Prosecution appeal. Do you want to carry the burden on

17 behalf of the appellants, or is there some agreement

18 between you as to who else should be?

19 MR. ACKERMAN: Your Honour, my part of that

20 would be quite brief because I'm only concerned about

21 the Prosecution's allegation that there should be some

22 expansion of that concept. Mr. Moran will basically

23 carry the burden for the other defendants on that

24 point.

25 JUDGE HUNT: Thank you.

1 MR. KUZMANOVIC: Your Honour, Tom

2 Kuzmanovic. One of our grounds of appeal is on the

3 command responsibility --

4 JUDGE HUNT: Oh, yes, I understand that.

5 MR. KUZMANOVIC: -- and I'm definitely going

6 to be arguing that. Mr. Moran and I have already

7 discussed what various portions of that are going to be

8 split between us, but either Mr. Morrison or I are

9 going to be arguing that.

10 JUDGE HUNT: Is there any agreement as to the

11 order in which you want to address? You will recall

12 that I did say on the last occasion that we expect the

13 first counsel to carry the burden of the argument; we

14 don't want other counsel merely repeating that --

15 MR. KUZMANOVIC: I understand that.

16 JUDGE HUNT: -- but they may, of course, add

17 anything which relates to their own clients or matters

18 which they feel should be added.

19 MR. KUZMANOVIC: I think Mr. Moran will be

20 arguing the legal sufficiency arguments and I will be

21 arguing the factual sufficiency arguments. That's

22 basically the difference between the two of us, and

23 Mr. Moran can talk about that in more detail if you

24 like. But we're not going to be covering the same

25 ground, Your Honour.

1 JUDGE HUNT: All right.

2 MR. MORAN: Your Honour, I think it may be

3 helpful to the Court.

4 JUDGE HUNT: Yes.

5 MR. MORAN: I think what I will probably be

6 discussing generally will be the law, and we're simply

7 asking for slight clarifications in the Trial Chamber's

8 holding, where -- and I agree with the application of

9 the law to the facts from the Trial Chamber,

10 obviously. I don't think Mr. Kuzmanovic and I have

11 very many disagreements as to the law that is to be

12 applied --

13 JUDGE HUNT: But is there any agreement as to

14 who should go first?

15 MR. MORAN: I think it was agreed that I was

16 to go first.

17 JUDGE HUNT: All right. Thank you,

18 Mr. Moran.

19 Well, then, Mr. Ackerman, you'll go third, of

20 the appellants; is that satisfactory to you?

21 MR. ACKERMAN: Yes.

22 JUDGE HUNT: Very well, then. The

23 Prosecution, Mr. Moran, Mr. Kuzmanovic, and

24 Mr. Ackerman.

25 Then we head into different country with the

1 Common Article 3 matters. This is, I think, your baby,

2 Mr. Ackerman, is it not?

3 MR. ACKERMAN: Your Honour, it's part of the

4 cross-appeal of Mr. Delalic, and I will argue that but

5 I will argue it very briefly. I think I would not

6 spend more than ten minutes on that issue. I think

7 it's pretty thoroughly briefed and it's not something

8 that is unfamiliar to this Tribunal.

9 JUDGE HUNT: That's right. Certainly not.

10 All right, then. Well, then, I think Mr. Mucic merely

11 adopts Delic's ground, so there's not likely to be any

12 additional material there, is there?

13 MR. KUZMANOVIC: No additional material, Your

14 Honour.

15 JUDGE HUNT: And Mr. Delic has raised the

16 same issues. How long do you think you'll be,

17 Mr. Moran?

18 MR. MORAN: Your Honour, we'll just settle

19 for whatever Mr. Ackerman says. Judge Ackerman, I'm

20 sure, will cover it pretty well.

21 JUDGE HUNT: Thank you very much. And there

22 is also this ground by Mr. Delic whether the Geneva

23 Conventions apply where Bosnia was not a party to them

24 at the relevant time. That should not take very long.

25 MR. MORAN: Your Honour, I was thinking ten

1 minutes, and I think it's pretty well briefed. Mainly

2 just for questions from the Court as much as anything.

3 JUDGE HUNT: From the Prosecution's point of

4 view, how long do you think you'll be addressing on

5 this one, Mr. Yapa?

6 MR. YAPA: I would put it at ten minutes,

7 Your Honour.

8 JUDGE HUNT: This one should finish well

9 within the hour then.

10 MR. YAPA: Yes.

11 JUDGE HUNT: I should have asked about the

12 command responsibility. How long do you think that's

13 going to take, from the Prosecution's point of view,

14 Mr. Yapa?

15 MR. YAPA: We have tried our best to be as

16 concise as possible in our written submissions, so I

17 should say if there are any matters to be clarified,

18 about 30 minutes, 30 to 35 minutes.

19 JUDGE HUNT: Thank you. What about you,

20 Mr. Moran? I realise that you will depend upon what

21 the Prosecution says, but I'm just trying to sort out

22 how many days we should list for each day.

23 MR. MORAN: Your Honour, I expect I will not

24 take much more time than the Prosecution. Again, I

25 think it will mainly be questions from the Tribunal,

1 from the Appeals Chamber.

2 JUDGE HUNT: And from your point of view,

3 Mr. Kuzmanovic?

4 MR. KUZMANOVIC: Your Honour, roughly the

5 same time, possibly a little less.

6 JUDGE HUNT: Mr. Ackerman will be very short.

7 MR. ACKERMAN: A little shorter, 15, 20

8 minutes. Maybe 15.

9 JUDGE HUNT: All right. We better say two

10 hours for that. That's the estimate.

11 Now, also the roughly associated group, the

12 protected persons matter. Well, I think you were first

13 off the mark again, Mr. Ackerman, on that one, because

14 Mr. Mucic has adopted your ground. Mr. Delic, I think,

15 has almost copied it.

16 MR. ACKERMAN: Your Honour, I may take five

17 to ten minutes on that, and I think Mr. Moran intends

18 to argue that, if I'm not mistaken.

19 JUDGE HUNT: Oh, you mean first.

20 MR. ACKERMAN: No, I will probably go first

21 for five or ten minutes, but I think Mr. Moran is maybe

22 going to argue more extensively than I.

23 JUDGE HUNT: Mr. Moran, how extensively?

24 MR. MORAN: I was thinking, Your Honour, on

25 the treaty interpretation, I might have about

1 20 minutes, and then Mr. Karabdic will have 10 to 15

2 minutes explaining the actual law of citizenship as it

3 applied to the Socialist Federal Republic of Yugoslavia

4 and Bosnia-Herzegovina.

5 JUDGE HUNT: And, Mrs. Sinatra, this is your

6 first ground, I think, the first matter that you're

7 involved in, your Ground 6. How long do you think

8 you'll be?

9 MS. SINATRA: Your Honour, I believe that --

10 Ground 6 is which one, Your Honour? I don't have the

11 brief in front of me.

12 JUDGE HUNT: "The Trial Chamber erred in law

13 in finding that the victims of the alleged crimes were

14 protected persons for the purposes of the Geneva

15 Conventions."

16 MS. SINATRA: I will defer to Mr. Moran and

17 Mr. Ackerman on that argument.

18 JUDGE HUNT: All right. Thank you.

19 MS. SINATRA: Thank you.

20 JUDGE HUNT: And the Prosecution?

21 MR. YAPA: Your Honour, in respect of this

22 ground, the response will depend on the time and the

23 substance of the argument that the --

24 JUDGE HUNT: That's understood Mr. Yapa.

25 MR. YAPA: So it may be half the time.

1 JUDGE HUNT: Half the time. Thank you.

2 Let's say about an hour and a half at the outside.

3 Then there's the international character of

4 the conflict. I think that might be you, Mr. Moran. I

5 think you seem to have the most to say about it in the

6 written submissions. Will you be going first?

7 MR. MORAN: Your Honour, since Judge Ackerman

8 will be gone, I will be going first, and I won't be

9 going very long. It's not something that the Appeals

10 Chamber has not dealt with before. I think the Appeals

11 Chamber is pretty familiar with the issue.

12 JUDGE HUNT: You all will have seen, I

13 assume, the recent decision in Aleksovski which deals

14 with the question of judicial precedent, so that you

15 will have to deal with that one along the way.

16 MR. MORAN: Yes, Your Honour, and I

17 understand that. In fact, we've thought about the

18 issue of precedent at some great length.

19 JUDGE HUNT: Yes. Mrs. Sinatra, this is also

20 one of yours, Ground 5: "The Trial Chamber erred in

21 law and in fact by finding that an international armed

22 conflict existed with reference to the events alleged

23 to have occurred at the site of each camp."

24 MS. SINATRA: Yes, Your Honour. We will have

25 nothing further to add to Mr. Moran's argument.

1 JUDGE HUNT: I'm not quite sure whether

2 Mr. Mucic has added this or not. Ground 10 might have

3 adopted it.

4 MR. KUZMANOVIC: I think it did, Your Honour,

5 and we will simply rely on Mr. Moran's argument on that

6 issue.

7 JUDGE HUNT: The Prosecution will be

8 similarly short, I think, Mr. Yapa.

9 MR. YAPA: Yes, Your Honour.

10 JUDGE HUNT: That one is well within the

11 hour.

12 Now, we start on the evidentiary matters.

13 The Judge Odio-Benito and the Vice-president of the

14 Republic of Costa Rica. We've got the expert, whose

15 already the subject of a report.

16 MR. MURPHY: Your Honour, yes.

17 JUDGE HUNT: What's going to happen there?

18 MR. MURPHY: Your Honour, we don't know yet

19 whether the Prosecution wishes to --

20 JUDGE HUNT: They've got until Monday to let

21 us know.

22 MR. MURPHY: Your Honour, they do. And if

23 they do not require him, Your Honour, we will rely on

24 his written report and will not call him as a witness.

25 JUDGE HUNT: Thank you. And the Prosecution

1 has never identified any expert which they wish to

2 call?

3 MR. YAPA: At the moment, what I can say is

4 we may file an opinion on Monday. We've not taken a

5 final decision yet. We have time till Monday, so we'll

6 decide on Monday.

7 JUDGE HUNT: All right. Thank you. How long

8 will the argument go on this one?

9 MR. MURPHY: Well, Your Honour, there are

10 some other witnesses also -- oh, is Your Honour just

11 referring to Judge Odio-Benito at this time?

12 JUDGE HUNT: Yes, that's right.

13 MR. MURPHY: Your Honour, may I put it in

14 this way --

15 JUDGE HUNT: I assume you will be leading on

16 this.

17 MR. MURPHY: I will. I will be doing all the

18 arguments on these ground dealing to both

19 Judge Odio-Benito and Judge Karibi-Whyte.

20 Your Honour, I had thought of these as a

21 group in a sense that they are, in a way, separate from

22 the substantive merits of the case, and I was proposing

23 to address them really as a group, and I had estimated

24 the time that I would need to deal with all three of

25 those grounds of argument as about one hour.

1 Your Honour, there will be, of course, other

2 witnesses in regard to the ground involving Judge

3 Karibi-Whyte.

4 JUDGE HUNT: I'll come to that in a minute,

5 but if I can take them a little more logically.

6 There's the evidence that you wish to put forward about

7 Judge Odio-Benito and the Relief of the Victims of

8 Torture Fund.

9 MR. MURPHY: Your Honour, I've been having

10 some communications with Mr. Staker and Mr. Yapa, and

11 we anticipate that very early next week we will be

12 putting before the Court an agreement as to several

13 evidentiary issues which ought to suffice for all

14 purposes. I don't anticipate that any further evidence

15 will be necessary on that ground.

16 JUDGE HUNT: Thank you. Well, now, on the

17 Judge Karibi-Whyte matter --

18 MR. KUZMANOVIC: Your Honour, excuse me.

19 JUDGE HUNT: Sorry.

20 MR. KUZMANOVIC: Before we get to that issue,

21 Mr. Murphy and I have discussed this yesterday.

22 Mr. Morrison will be talking to Mr. Murphy on the

23 Judge Odio-Benito issue and will handle a portion of

24 that oral argument. What portion that is we're not

25 certain yet, but he will, obviously, not cover the same

1 ground that Mr. Murphy covers.

2 JUDGE HUNT: You don't know how long he's

3 likely to be then, do you?

4 MR. KUZMANOVIC: No, I don't. I'm sorry,

5 Your Honour.

6 MR. ACKERMAN: Your Honour, may I intercede

7 for a second?

8 JUDGE HUNT: Yes, Mr. Ackerman.

9 MR. ACKERMAN: You're now going into the two

10 matters that you indicated would be last on the list.

11 There are a number of issues in the Delalic appeal that

12 we haven't talked about dealing with.

13 JUDGE HUNT: Yes. You're quite right. I'm

14 going in the order in which I had them grouped

15 originally, but you're right. These will be the last

16 two. Can I just finish dealing with them and then come

17 back to you?

18 MR. ACKERMAN: Absolutely.

19 JUDGE HUNT: Yes, Mr. Murphy. The Judge

20 Karibi-Whyte ones, you say that you are putting forward

21 some oral evidence, apart from Mrs. Sinatra's evidence

22 about waiver.

23 MR. MURPHY: Your Honour, yes, and we will

24 file a list of those witnesses, together with their

25 statements, on Monday as per the scheduling order.

1 JUDGE HUNT: How long do you think that they

2 will all take?

3 MR. MURPHY: Your Honour, including

4 Mrs. Sinatra, I would hope to do all that evidence

5 perhaps in half a day or at the worst a little more.

6 It will depend, of course -- I'm trying make a

7 reasonable allowance for cross-examination by the

8 Prosecution, but it shouldn't really take any longer

9 than that. Maybe no more than two or three hours, but

10 Mrs. Sinatra will be, obviously, at some length.

11 JUDGE HUNT: And the argument, you say, will

12 take about an hour.

13 MR. MURPHY: Yes. But that includes all

14 three of those grounds.

15 JUDGE HUNT: Yes. Now, Mr. Delic and

16 Mr. Mucic have joined the bandwagon, if I may so

17 describe it, by adding a ground. Will you be adding to

18 the evidence or to the argument?

19 MR. MORAN: No, Your Honour. We'll stand on

20 Professor Murphy's argument and evidence.

21 MR. KUZMANOVIC: And we will do likewise.

22 JUDGE HUNT: Thank you. Yes, Mr. Murphy.

23 MR. MURPHY: There are just two other

24 matters, if I might, before we leave those grounds.

25 One is a very short matter of protocol in which I would

1 appreciate the Court's guidance. Would it be the

2 Court's preference when she testifies, Mrs. Sinatra

3 should wear a robe or not?

4 JUDGE HUNT: Certainly she should not. She

5 comes as a witness.

6 MR. MURPHY: Your Honour, I thought so, but I

7 wanted to be sure of that.

8 JUDGE HUNT: Once when I was sitting at the

9 bar table and I was obliged to give evidence in the

10 case, much to my embarrassment, I asked a similar

11 question and I was told I should remove my wig, but

12 that was a different matter altogether.

13 MR. MURPHY: Yes.

14 JUDGE HUNT: But they didn't expect me to get

15 undressed completely.

16 MR. MURPHY: Your Honour, I will make sure

17 Mrs. Sinatra removes any wig she may be wearing.

18 MS. SINATRA: Or get undressed completely

19 either.

20 MR. MURPHY: Your Honour, the second matter I

21 wanted to raise, and I do this with great diffidence

22 because I know Your Honour has put forward an order in

23 which these things should be taken, Your Honour, I

24 would like to submit that there would be some merit in

25 taking this group of ground relating to the Judges

1 first for this reason: Your Honour, they are separate

2 from substantive merits of the case, and they effect,

3 of course, all the accused.

4 Your Honour, there is a possibility, and I

5 put it no higher than that, that it may be that the

6 Appeals Chamber would find that one or more of these

7 grounds is sufficiently compelling to require the

8 reversal these convictions. Now, if that should

9 happen, Your Honour may find it advisable to not

10 pronounce on any wider issues of law as to which a full

11 judgement of this Appeals Chamber might be obiter,

12 because it may well be, Your Honour, that those issues

13 of law, some of which are obviously of great

14 importance, would have to be considered by a future

15 Trials Chamber and possibly by a future Appeals

16 Chamber. Your Honour, I make that suggestion only with

17 great diffidence in the hope --

18 JUDGE HUNT: I'm puzzled as to how it affects

19 the hearing, because I think you misunderstand the

20 dynamics of an Appellate Court. It is very unlikely

21 that we will come to some agreement after hearing the

22 argument.

23 MR. MURPHY: Your Honour, it is. I --

24 JUDGE HUNT: It would have to be a very

25 strong matter to do that.

1 MR. MURPHY: I respectfully agree.

2 JUDGE HUNT: It might be quite absurd for us

3 to go away and consider it and then come back several

4 weeks later and say, "We've come to this conclusion.

5 Now we will or will not go on with the other matters."

6 I think with the date being fixed, we should

7 hear them all. You're quite right. If that were the

8 result of the case, it would save us a lot of time and

9 effort not to have to pronounce upon matters which, as

10 you say, would be simply obiter, but it's not going to

11 affect the hearing, if I may put it as boldly as that.

12 So I think from the problem that we have or,

13 shall I say, Mr. Ackerman has, which is a reasonable

14 one seeing that we forced the date on, we should get

15 him away and, therefore, all the evidentiary matters

16 should be at the end of the list.

17 MR. MURPHY: Your Honour, yes. I'm much

18 obliged.

19 JUDGE HUNT: All right. Well, now, there's

20 another matter which at least two of the appellates --

21 I'm sorry, yes Mr. Yapa.

22 MR. YAPA: On this aspect, there are a few

23 submissions that we wish to make on the calling of

24 witnesses on these two matters. Mr. Staker will make

25 them.

1 JUDGE HUNT: Yes, Mr. Staker.

2 MR. STAKER: Yes, Your Honour. We are aware

3 that the parties have until Monday to indicate what

4 witnesses they will be calling and to file their

5 statements. I don't know if it may be possible for the

6 other parties to give some kind of indication today how

7 many witnesses there may be and how long it may be

8 expected. That may assist to some extent, now that

9 we're trying to plan the course of the hearing, to have

10 some knowledge of that.

11 JUDGE HUNT: In the motion which was filed,

12 they did nominate, as I recall, a court reporter, a

13 trial counsel, and Mrs. Sinatra. But I'm more

14 interested, frankly, to see what the statements say,

15 which will give us a better indication of where we're

16 going.

17 MR. STAKER: That was going to be my next

18 suggestion, Your Honour. I don't know if one

19 possibility that might be worthy of consideration is

20 whether the witness testimony might be given in

21 affidavit form, in which case the Prosecution would

22 then be able to examine whether there may be points

23 which it might be in a position not to contest and any

24 oral testimony would then be confined to

25 cross-examination on points of contention.

1 The alternative suggestion would be simply to

2 invite the other parties to file witness statements

3 which are as comprehensive as possible.

4 JUDGE HUNT: They've been required to by the

5 scheduling order to do that. I certainly agree with

6 you. It may be worthwhile taking them as the evidence

7 in the case if there's no dispute about it, but they

8 certainly -- they do have to file witness statements,

9 so we'll see what's in them to see where we're going.

10 MR. STAKER: Thank you, Your Honour.

11 MR. MURPHY: Your Honour, let me, if it will

12 help the Prosecution, indicate this: that our

13 intentions remain basically the same as we'd indicated

14 in our previous communications to the Court. The

15 witness statements that will be filed on Monday are, in

16 fact, in affidavit form.

17 JUDGE HUNT: I hope they're more relevant

18 than the earlier ones, Mr. Murphy. I mean when this

19 issue first arose, you may recall in a separate opinion

20 I almost gave an advice on evidence, which seems to

21 have been completely ignored.

22 MR. MURPHY: Your Honour, I think the Court

23 will find that the witness statements will cover the

24 issues that we hope to address. Of course, the issues

25 are confined to a quite narrow compass.

1 JUDGE HUNT: Yes. But even in the motion,

2 you see, the emotional reaction of one of the witnesses

3 is put forward as a matter of some importance. I would

4 have thought, with all due respect, that that is

5 totally and absolutely irrelevant. What we are

6 concerned with is what people saw and heard.

7 MR. MURPHY: I think Your Honour will see

8 from the witness statements that that is what the

9 witnesses deal with. Your Honour, they are based

10 entirely on the personal observation of the witnesses

11 as to what was happening in the courtroom, and, Your

12 Honour, that's really the scope of the evidence.

13 The only additional matter, of course, is the

14 testimony of Mrs. Sinatra regarding the waiver issue.

15 JUDGE HUNT: That will be more detailed, I

16 should think.

17 MR. MURPHY: Your Honour, it will.

18 JUDGE HUNT: Does that conclude the one about

19 the two Judges? The next one where there's at least a

20 joint approach is cumulative charging. That is an

21 expression which I think is probably erroneous, because

22 there is an issue, a very live one, about cumulative

23 charging. We're dealing here with a cumulative

24 convicting, and that's with Mr. Mucic and Mr. Delic.

25 Who is going to take the burden of that one?

1 MR. KUZMANOVIC: Your Honour, I'm going to

2 take the lead on that.

3 JUDGE HUNT: How long do you think you'll

4 take, Mr. Kuzmanovic?

5 MR. KUZMANOVIC: Twenty minutes, Your

6 Honour.

7 JUDGE HUNT: And what will Mr. Delic be --

8 what will you be adding, Mr. Moran?

9 MR. MORAN: Your Honour, if I add anything,

10 it would be probably under five minutes.

11 JUDGE HUNT: Yes. And the Prosecution?

12 MR. YAPA: It will be between 10 to 15

13 minutes.

14 JUDGE HUNT: I should say that there must be

15 a distinction between cumulative charging and

16 cumulative convicting, and most of the law that we've

17 got at the moment relates solely to cumulative

18 charging. So it is a new issue in that sense.

19 Then there are the remaining individual

20 grounds. Mr. Mucic has a series about grounds 5 and 6,

21 the admissibility of the OTP interviews; ground 8, the

22 conduct of the Defence; and ground 12, unlawful

23 confinement. How long is that going to take?

24 MR. KUZMANOVIC: Your Honour, Mr. Morrison

25 will be handling those sections, and I would assume

1 that all combined it will not take more than 35 to 40

2 minutes.

3 JUDGE HUNT: Thank you. And the

4 Prosecution?

5 MR. YAPA: Maybe 20 minutes, Your Honour.

6 JUDGE HUNT: Yes. All the written

7 submissions are very detailed, I'm grateful to see.

8 Now, Mr. Delic has got a series of grounds of

9 appeal relating to the legal and factual sufficiency of

10 the evidence, and that is his issues 9 and 10, 11 and

11 12, 13 and 14, 15 and 16, and 17 and 18.

12 MR. MORAN: Your Honour, those were -- I

13 think those were pretty well briefed. I don't expect

14 to take much time on that. We do, of course, have the

15 same issue that Mr. Mucic raised as to illegal

16 confinement.

17 JUDGE HUNT: Yes, you're right.

18 MR. MORAN: If that's to be discussed at all

19 by us, I'll discuss it behind Mr. Morrison, and if I do

20 it will be very, very short. I don't expect long

21 argument on any of those issues, and it might be easier

22 just to deal with them as a group --

23 JUDGE HUNT: Oh, yes.

24 MR. MORAN: -- and plan on either

25 Mr. Karabdic or I spending about 15 to 20 minutes on

1 them total, at a maximum.

2 JUDGE HUNT: It's a little difficult to know

3 the way in which it's been drafted. And when you say

4 whether the evidence was legally sufficient, is that an

5 issue as to what is required by the law, or whether you

6 start off by saying there's a case to answer and

7 therefore should it be accepted?

8 MR. MORAN: Your Honour, in the tradition I

9 come from -- and it's probably a term of art in the

10 United States, and if I've used it or abused it, I

11 apologise -- but in the United States, evidence is

12 legally insufficient if no rational fact-finder could

13 find all the elements of the offence beyond a

14 reasonable doubt.

15 JUDGE HUNT: No prima facie case.

16 MR. MORAN: No prima facie case. If no --

17 JUDGE HUNT: But why are we concerned about

18 no prima facie case when we've got all of the

19 evidence?

20 MR. MORAN: Well, Your Honour, again, in the

21 tradition where I come from, you get a legal review on

22 appeal of whether any rational fact-finder could find

23 all the elements, and --

24 JUDGE HUNT: But I don't see the purpose of

25 it.

1 MR. MORAN: Well, Your Honour, if no rational

2 fact-finder, taking all the evidence, viewed in the

3 light most favourable to the Prosecution --

4 JUDGE HUNT: Then you had no case to answer.

5 MR. MORAN: Then there was no case to

6 answer.

7 JUDGE HUNT: But you set out to answer it, so

8 why are we concerned with it on appeal?

9 MR. MORAN: Your Honour, again, I think we're

10 dealing with a different tradition, and I may have -- I

11 may not have handled this as well as I should have

12 and --

13 JUDGE HUNT: I'm not criticising you. I'm

14 just trying to find out what it is we're going to have

15 to determine and why.

16 MR. MORAN: Well, Your Honour --

17 JUDGE HUNT: If, at the end of the trial, the

18 Trial Chamber gave a perverse decision, then you will

19 succeed. If they didn't and there was evidence to

20 support a conviction, then you will lose. It seems to

21 me that we don't need to deal with them separately.

22 MR. MORAN: Yes, Your Honour. Well, the

23 remedy that I'm used to is a different remedy.

24 JUDGE HUNT: Yes.

25 MR. MORAN: One remedy would be if it was

1 just -- if the fact-finder was just so wrong, even if

2 there was legally sufficient evidence, there was a case

3 to answer, if the appeals court just said, "This is

4 just wrong," we would get a new trial.

5 JUDGE HUNT: Well, I come from a different

6 tradition, I'm afraid, and ten years in the Court of

7 Criminal Appeal taught me that you don't seek to

8 determine issues you don't have to if there is an

9 answer to another ground raised. But anyway, we'll

10 worry about that when --

11 MR. MORAN: Yes, Your Honour. Basically the

12 two different issues in the tradition I come from would

13 be the remedy as opposed to the -- and also the

14 analysis would be slightly different.

15 JUDGE HUNT: Well, you see, you may have a

16 problem there with the Tadic judgement. You see, the

17 Tadic judgement has stated a basis for upsetting the

18 Trial Chamber's decision on fact.

19 MR. MORAN: Yes, Your Honour, I understand.

20 JUDGE HUNT: As I see it, if it was not a

21 decision which a reasonable Trial Chamber could reach,

22 then there would be the same remedy: There would be an

23 acquittal.

24 MR. MORAN: And --

25 JUDGE HUNT: It's not a new trial point, in

1 other words.

2 MR. MORAN: Yes, Your Honour. And we would

3 have no objection if the Court ordered an acquittal.

4 JUDGE HUNT: Yes. But you see, you would get

5 a new trial, which is the only other remedy of that

6 all, only if the Trial Chamber had erred in law and it

7 was not a matter which could be cured on an appeal.

8 MR. MORAN: Yes, Your Honour.

9 JUDGE HUNT: So that if there was a decision

10 on an issue of fact for which there was no legal basis,

11 because there was an insufficient leading of evidence,

12 you would get an acquittal; and if there was a decision

13 on an issue of fact which no reasonable Trial Chamber

14 could reach, then you would get it upset on the issue

15 of fact and again an acquittal.

16 So it doesn't seem to me that we have any

17 problem about different remedies.

18 MR. MORAN: No, we have no problem with

19 different remedies. Again, it's the tradition I come

20 from. There's a slightly different analysis that I've

21 talked about, and we would be more than willing to

22 consider them as the same points.

23 JUDGE HUNT: Well, it's not quite the same, I

24 agree with you, but one seems to me to be unnecessary

25 if we find for you on the other.

1 MR. MORAN: That's correct, Your Honour.

2 JUDGE HUNT: Yes. All right. We've got that

3 sorted out.

4 Now, Mr. Landzo's individual grounds. The

5 first one of selective prosecution, which is raised by

6 grounds 1, 7, and 8.

7 Yes, Ms. Sinatra.

8 MS. SINATRA: Yes, Your Honour. I will be

9 addressing the individual issues for Landzo, which are

10 particular to him, which would be selective

11 prosecution, the issues dealing with diminished mental

12 responsibility, and the sentencing issues, which -- it

13 was properly briefed, I believe, but in addition to

14 that, the only thing I will add is taking into

15 consideration the new decisions that have come down

16 since the brief has been filed.

17 JUDGE HUNT: Oh, yes, of course. How long do

18 you think you'll be on selective prosecution?

19 MS. SINATRA: I think with all three of these

20 issues I would be a maximum of 30 to 45 minutes, Your

21 Honour.

22 JUDGE HUNT: You understand that we're going

23 to argue all sentencing together --

24 MS. SINATRA: Okay.

25 JUDGE HUNT: -- as a group. So how long on

1 these two?

2 MS. SINATRA: On selective prosecution, 10

3 minutes; on diminished responsibility, 30 minutes, Your

4 Honour.

5 JUDGE HUNT: You realise that there is a very

6 real issue here as to whether this is a "defence" at

7 all.

8 MS. SINATRA: I'm taking it because it says

9 so in the Rules of Procedure. That's for the

10 Prosecution to argue --

11 JUDGE HUNT: They also talk about a defence

12 of alibi. That doesn't mean it's a defence, does it?

13 MS. SINATRA: I didn't see that in their

14 response.

15 JUDGE HUNT: No, but it's in the same Rule.

16 I have read the Prosecution submissions as saying that

17 it is merely a matter in mitigation, which of course is

18 what it is even in the two common law countries of

19 which I'm aware, where the special defence is a

20 defence. They are only matters in litigation.

21 So I want you to be very clear because you

22 haven't dealt with this anywhere in your submissions.

23 Of course, the Rules can't provide a defence which the

24 international law does not provide.

25 MS. SINATRA: I appreciate you bringing that

1 point up to me at this point, and I will take a look at

2 this under a new light. Thank you.

3 JUDGE HUNT: It's not the time here to debate

4 it, but I think you seem to have overlooked this

5 problem. When you say in England, Australia, and

6 elsewhere where this defence exists, if it succeeds,

7 then a conviction for manslaughter is entered, and you

8 brush that to one side by saying you're entitled to an

9 acquittal, that overlooks the fact that this is only

10 ever a matter in litigation.

11 MS. SINATRA: Well, I believe if it lowers it

12 to another offence, then that's not just a punishment

13 issue, that is an issue of what it is exactly that the

14 defendant is convicted of.

15 JUDGE HUNT: Well, there is a lot of law on

16 this and a lot of research on it, which I suggest you

17 might like to have a look at.

18 MS. SINATRA: I shall between now and June

19 5th.

20 JUDGE HUNT: Indeed, there is a Law Reform

21 Commission report which had to deal with the issue as

22 to whether it should be abolished altogether and left

23 solely to sentence, and it's something which you have

24 not dealt with in your submissions at all.

25 MS. SINATRA: You're right. I believe the

1 last time I looked at it was in relationship to the

2 international permanent criminal court, where they did,

3 I believe -- the rules that they have promulgated will

4 allow it to be an affirmative defence. And so I was

5 basing my submissions on the research that I did on the

6 International Criminal Court from the Rome Statute.

7 JUDGE HUNT: That may be so, but there's a

8 lot more than just the Rome Statute.

9 How long do you think you'll be, then, on

10 sentence?

11 MS. SINATRA: Fifteen minutes, Your Honour.

12 JUDGE HUNT: Thank you.

13 Now, the Prosecution and Mr. Mucic taking

14 opposing views as to his sentence, how long would the

15 Prosecution take?

16 MR. YAPA: Your Honour, on that ground, we

17 shall be 20 minutes.

18 JUDGE HUNT: Twenty minutes. And from

19 Mr. Mucic's point of view?

20 MR. KUZMANOVIC: Your Honour, we will take

21 probably about the same time. Mr. Morrison will be

22 handling the sentencing issues.

23 JUDGE HUNT: Yes. And Mr. Delic also has an

24 appeal against sentence.

25 MR. MORAN: Yes, Your Honour. It will be in

1 the neighbourhood of about 20 minutes.

2 JUDGE HUNT: Thank you.

3 Now, just a few general matters. If there is

4 an agreement with the Prosecution about some documents

5 for the Judge Odio-Benito points, could you file those

6 in advance so that we can read them before the

7 hearing? It will save a lot of time.

8 MR. MURPHY: Yes, we will. I anticipate,

9 Your Honour, that we'll probably do that quite early

10 next week.

11 JUDGE HUNT: Thank you.

12 Now, Mr. Delic has never filed a notice of

13 grounds of appeal. We do have an index which I think

14 sets them out, an index to the brief. But there really

15 should be a document which is called "Grounds of

16 Appeal," and that is what defines what the appeal is

17 all about.

18 MR. MORAN: Yes, Your Honour. At the time of

19 the judgement, I consulted with some other persons here

20 and read the Rule, and the Rule -- although the

21 practice had been to list in the notice of appeal what

22 the grounds were, the Rule did not seem to require

23 that.

24 JUDGE HUNT: Well, it's interpreted that way,

25 I think, in every other case. You should have a list

1 of your grounds of appeal so we know what the grounds

2 of appeal are.

3 MR. MORAN: Yes, Your Honour. And because we

4 didn't know at the time what our grounds of appeal

5 would be, we just filed a general notice of appeal.

6 However, I will file --

7 JUDGE HUNT: I accept that that is perfectly

8 all right; you have to put a notice of appeal on within

9 time. But then there should be some document somewhere

10 which identifies your grounds of appeal, and merely

11 having them in an index to your brief doesn't help. Of

12 course, you've added two sets as well.

13 MR. MORAN: Yes, Your Honour. And I will

14 file that, with the Court's permission, within a week.

15 JUDGE HUNT: Thank you. I hope you'll follow

16 the same numbering as the ones you give in the index,

17 because we're all working on that index.

18 MR. MORAN: Your Honour, I will take the

19 index and move it into that.

20 JUDGE HUNT: Thank you very much.

21 MR. MORAN: Your Honour, while I'm on my

22 feet, there's one other question I'd ask the Court:

23 It's come to my attention that in the last couple of

24 weeks, some decisions have been handed down from

25 American courts which may bear on the ex post facto

1 issue, the application of the Geneva Conventions.

2 Specifically, there is a new decision from the Supreme

3 Court of the United States, which I have not read yet,

4 frankly, that does deal with the issue.

5 It's been my practice in the past, as you get

6 closer and briefing is closed, that either at the time

7 of oral argument or slightly before, if there is some

8 authority that has not been discussed, just to simply

9 file a list of citations to authority that are not

10 cited in any briefs --

11 JUDGE HUNT: Yes.

12 MR. MORAN: -- would that be helpful to the

13 Court?

14 JUDGE HUNT: It certainly would. It might be

15 helpful also if we can have access to it. If it's on

16 the Internet, we can get it from there, I suppose, but

17 if it's been in a reported form, we'd like a copy of

18 it.

19 MR. MORAN: Yes, Your Honour. As of now, I

20 think it's just on Lexus, I know, and it probably has

21 not yet been printed by the West Publishing Company.

22 JUDGE HUNT: If it has before the trial, we

23 would be very grateful to you if we could have a

24 copy --

25 MR. MORAN: Yes, Your Honour.

1 JUDGE HUNT: -- which we'll then distribute

2 to all the Judges.

3 Now, Mr. Mucic has filed a grounds of appeal

4 but has to file another document consolidating that

5 with the two that have been added. So would you make

6 sure, Mr. Kuzmanovic, that there is another document

7 filed which adds those two?

8 MR. KUZMANOVIC: Yes, I will, Your Honour.

9 JUDGE HUNT: Thank you.

10 Mr. Ackerman, there's been some tut-tutting,

11 I suppose, about the form of your documents, calling it

12 a cross-appeal. From those who are interested in the

13 niceties of things, you can't have an appeal against an

14 acquittal. What you're really saying, as I understand

15 it, is in what, in Sydney, we called a notice of

16 contention. What you're saying is that if the

17 Prosecution succeeds on its appeal, then you want to

18 argue that the judgement was wrong in other respects.

19 That's not strictly a cross-appeal.

20 MR. ACKERMAN: Your Honour, I struggled quite

21 a bit with trying to figure out how to go about what I

22 did, but my concern was this: If we came to the point

23 in the appeal where the Appeals Chamber determined that

24 it was necessary that there be a new trial for Zejnil

25 Delalic, there were issues that had been, I thought at

1 the time, very central to his trial that needed to be

2 decided by the Appeals Chamber so that they could be

3 definitive then when the new trial came along. So

4 that's the reason I filed the cross-appeal.

5 If there's not to be a new trial, then the

6 issues in the cross-appeal are of no moment at all to

7 Mr. Delic, we don't care about them. We only --

8 JUDGE HUNT: Can we agree that they should

9 not be called a cross-appeal but perhaps some other

10 form of title? My suggestion is a notice of

11 contention. So that we have to determine them only if

12 the Prosecution succeeds in its appeal.

13 MR. ACKERMAN: Yes, you may call them that if

14 you wish, Your Honour. My intention is that they are

15 of no moment unless the Appeals Chamber says, "We're

16 going to order a new trial for Mr. Delalic, and in that

17 new trial, the Trial Chamber will take note of our

18 decision on these two issues."

19 JUDGE HUNT: Or it may be possible, I haven't

20 looked at it closely enough, it may be possible for the

21 Appeals Chamber to determine the matter if they do

22 uphold the Prosecution appeal on the evidence which was

23 at the trial. But it would also, at that same time,

24 have to determine these issues which you've raised.

25 MR. ACKERMAN: Yes.

1 JUDGE HUNT: So we're agreed that that's the

2 way we approach it?

3 MR. ACKERMAN: That's certainly the intention

4 I had at the beginning, and what it's called is really

5 of no concern to me.

6 JUDGE HUNT: Thank you. We've got your note,

7 Mr. Ackerman, about the parts of your brief that should

8 be treated as confidential. I suppose if we just have

9 a red stamp that says "Confidential" on those pages,

10 that would be sufficient, would it?

11 MR. ACKERMAN: I assume --

12 JUDGE HUNT: I'm sorry. Does it include more

13 than just the evidence that you attached to the brief?

14 The references in the brief itself are confidential?

15 MR. ACKERMAN: Well, there are some extracts

16 attached to the brief that are confidential. In the

17 body of the brief, those are referred to and then

18 footnoted to either the extracts or some other parts of

19 the testimony of those persons, Witnesses D and DC-4, I

20 think.

21 JUDGE HUNT: And you've nominated those pages

22 where the content of the confidential -- or the closed

23 session evidence, you've nominated those as being

24 confidential as well.

25 MR. ACKERMAN: Yes.

1 JUDGE HUNT: All right.

2 MR. ACKERMAN: I mean, my position, Your

3 Honour, as you probably know from listening to me

4 before, is that too many things are confidential. But

5 I was asked to tell you which pages that material

6 appeared on, and I've now done so, and what the Court

7 wants to do with that information is of no concern to

8 me.

9 JUDGE HUNT: Thank you very much for that.

10 Mr. Yapa, the Prosecution's response may need

11 some form of confidentiality as well. If you've dealt

12 with the evidence in Mr. Ackerman's brief that was

13 heard in closed session, then the pages upon which

14 you've referred to its contents would have to be

15 declared somehow confidential. Would it be possible,

16 over the next week or so, for somebody to have a look

17 through to see whether there are any pages which should

18 be marked confidential?

19 MR. YAPA: Yes.

20 JUDGE HUNT: It's very important when you're

21 writing a judgement that you have some notification of

22 what is confidential and what is not, because it's very

23 easy to include something which you shouldn't.

24 MR. YAPA: Yes.

25 JUDGE HUNT: The only other matter I want to

1 raise are the sitting times. The proposal is that we

2 sit from 10.00 until 11.30, then from noon until 1.00,

3 from 2.30 until 4.00, and then from 4.30 to 5.30. That

4 gives us five hours a day. But on Wednesday, assuming

5 we're still going on Wednesday, that last session, the

6 4.30 to 5.30 one, will not be possible because one of

7 the Judges has another matter, which unfortunately

8 cannot be moved, at that time in another courtroom.

9 Are there any other matters, this being a

10 Status Conference, that anybody wants to raise?

11 MR. ACKERMAN: Your Honour, there are a

12 number of issues in the Delalic appeal that we haven't

13 talked about yet.

14 JUDGE HUNT: Oh, dear, yes. I thought we'd

15 covered everything.

16 MR. ACKERMAN: The Prosecution appealed and

17 has contended that the Trial Chamber erred when it

18 prevented the Prosecution from presenting rebuttal

19 testimony or reopening its case. They've complained

20 that Delalic should not have been acquitted as to Count

21 48 and that the Trial Chamber's definition of "knew or

22 had reason to know" was incorrect.

23 JUDGE HUNT: That's all command

24 responsibility, at least the last part of it is. I

25 don't know what Count 48 is from memory. Unlawful

1 confinement. Thank you.

2 MR. ACKERMAN: Yes.

3 JUDGE HUNT: Yes. You want those dealt with

4 at the time, perhaps with or straight after command

5 responsibility.

6 MR. ACKERMAN: I think so, yes.

7 JUDGE HUNT: Can you identify the grounds of

8 appeal?

9 MR. ACKERMAN: Well, it's the Prosecution's

10 brief, Your Honour. I think the way I have identified

11 them in my reply is number 4, whether Delalic -- no.

12 Number 5, the Trial Chamber correctly prevented the

13 Prosecution from presenting rebuttal testimony or

14 reopening its case. Number 6, the acquittal of Delalic

15 as to Count 48. That tends to deal with protected

16 persons, but it also deals with the question of aiding

17 and abetting, and that's an important issue that needs

18 to be discussed.

19 JUDGE HUNT: So that's -- apart from the

20 definition of command responsibility, that means

21 grounds of appeal 5 and 6 should be argued immediately

22 after command responsibility.

23 MR. ACKERMAN: I would think so. I'm not

24 sure they are 5 and 6 in the Prosecutor's brief, but

25 they deal with those issues, the reopen/rebuttal issue,

1 the aiding and abetting issue, and this "knew or had

2 reason to know," which I think probably I can include

3 within the command responsibility remarks that I'll

4 make.

5 JUDGE HUNT: Thank you.

6 Within our own organisation, the way we've

7 got command responsibility are the Prosecution grounds

8 of appeal 1, 2, 3, 5, and 6, which I think includes all

9 of those matters. So those are the ones which we

10 propose to have argued at the beginning. Perhaps our

11 general heading was a little off the mark.

12 Now, is there anything that anybody else

13 wishes to raise at this stage?

14 Yes, Mr. Staker.

15 MR. STAKER: Your Honour, this relates to the

16 matter that's just been discussed. It was our

17 understanding that those grounds of appeal which you

18 identified would be dealt with under the heading of

19 command responsibility, although I did want to point

20 out some of the Prosecution arguments in relation to

21 those grounds of appeal. In fact, we rely on Article

22 7(1) of the Statute rather than 7(3).

23 JUDGE HUNT: Oh, yes. That's actually noted

24 on my sheet here. We've been trying to have the

25 research that we've got arising out of the briefs under

1 the various headings, and they are all in that one.

2 MR. STAKER: Thank you, Your Honour.

3 The other matter I also just wanted to

4 mention is in the Prosecution response brief, I think.

5 In particular, there are a number of general

6 preliminary headings dealing with matters such as

7 judicial notice and standards of review on appeal. Our

8 understanding would be that it's not necessary to

9 address these specifically in oral argument. To the

10 extent that the issues come up under grounds of appeal,

11 they can be referred to.

12 JUDGE HUNT: I've heard Mr. Yapa on them

13 before. If I may say so to all the parties, the

14 written submissions have been very helpful. And don't

15 worry, they are being read.

16 MR. STAKER: Thank you, Your Honour. There

17 is another matter that Mr. Yapa would like to address.

18 JUDGE HUNT: Yes.

19 MR. YAPA: I beg Your Honour's indulgence to

20 mention one matter, a general matter.

21 There has been a query about the composition

22 of the Prosecution team. I have mentioned the names of

23 three persons, including myself, as appearing for the

24 Prosecution. Earlier there was Mr. Rod Dixon as a

25 member of the appeals team for the Prosecution. He is

1 no longer in the service of the Prosecution. But there

2 is one other gentleman who is in the appeals team, but

3 he served as a court deputy for some time.

4 JUDGE HUNT: I saw him name there, yes.

5 MR. YAPA: Mr. Roeland Bos. And he was in

6 the Celebici case for a very short period, but I have

7 not mentioned -- marked his appearance here, but he's

8 in the Appeals Chamber. Of course, subject to any

9 objection from my learned friends in the Defence.

10 JUDGE HUNT: At what stage of the trial was

11 he the court deputy?

12 MR. YAPA: I could mention the dates. He was

13 there from the 10th of March, 1997 to September 1997,

14 in all 29 court days he has been in court.

15 JUDGE HUNT: Well, counsel for the Defence

16 should consider that matter. It's something worth

17 considering, although I should say that my experience

18 with this Tribunal is that the Court Deputy plays no

19 part in the resolution of the case. They are very

20 important people to have, and they certainly know the

21 evidence probably better than anybody, certainly the

22 documents, but they do not play any part at all in the

23 writing of the judgement. But if there's anything that

24 you want to raise, I suggest you contact Mr. Yapa well

25 and truly before hearing the appeal so that the issue

1 can be resolved one way or the other.

2 Whilst you're on this, having names on

3 documents, Mr. Yapa, not so much in this case but we do

4 have a problem when do you not put the names of counsel

5 on the documents and yet you expect us to put them on

6 the decisions, because we don't know who to include.

7 MR. YAPA: Yes.

8 JUDGE HUNT: It seems to have been only a

9 fairly recent development in the OTP that they don't

10 put all the names on the documents. May I suggest that

11 somebody reconsider so that we know what names to put

12 on the decisions and judgements?

13 MR. YAPA: I thank Your Honour. Of course,

14 this matter has been resolved. The question came up

15 earlier as to what names should be put onto the

16 decision when the decision is made, and there is no

17 problem as such, but the decision to put down only one

18 name when papers are filed is a decision that has been

19 taken in the Prosecution, but this matter will be

20 reconsidered.

21 JUDGE HUNT: We would be very grateful.

22 Either that, or you give us some document with the

23 names of counsel that you want on the decision.

24 Otherwise, we are either going to offend someone by

25 deleting them or offend them putting them on when they

1 had nothing to do with it, especially if they've lost.

2 MR. YAPA: Thank you, Your Honour.

3 JUDGE HUNT: Any other matters to be raised?

4 I'm very grateful to you all. We'll count

5 that as -- the time will start to run on -- What is

6 it? -- Rule 65 bis, Status Conferences, again from

7 today, and we shall see you on the 5th of June.

8 I'll adjourn.

9 --- Whereupon the Status Conference

10 adjourned at 11 a.m.

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