The International Criminal Tribunal for the Former Yugoslavia

Case No.IT-96-21

  1. 1 Monday, 3rd November 1997

    2 (2.30 pm)

    3 JUDGE KARIBI-WHYTE: Good afternoon, ladies and gentlemen.

    4 I think we are still continuing with your examination,

    5 is it not?

    6 MR. NIEMANN: Yes, your Honour.

    7 JUDGE KARIBI-WHYTE: Your submission. You may proceed.

    8 MR. NIEMANN: Yes, your Honour.

    9 JUDGE KARIBI-WHYTE: Appearances, please.

    10 MR. NIEMANN: If your Honour pleases, my name is Grant

    11 Niemann, I appear with my colleagues, Mr. Turone,

    12 Ms McHenry and Mr. Khan for the Prosecution.

    13 JUDGE KARIBI-WHYTE: Appearances for the Defence, please.

    14 MS. RESIDOVIC: Good afternoon, your Honours, I am Edina

    15 Residovic, appearing on behalf of Mr. Zejnil Delalic,

    16 with my colleague, Eugene O'Sullivan, professor from

    17 Canada.

    18 MR. OLUJIC: Good afternoon, your Honours, my name is Zeljko

    19 Olujic, appearing on behalf of Mr. Zdravko Mucic. I am

    20 an attorney from Croatia. Appearing with me is my

    21 colleague Michael Greaves, attorney from the

    22 United Kingdom of Great Britain and Northern Ireland.

    23 MR. KARABDIC: Good afternoon, your Honours, I am Salih

    24 Karabdic, attorney from Sarajevo, appearing on behalf of

    25 Mr. Hazim Delic, with Mr. Thomas Moran, attorney from

  2. 1 Houston, Texas.

    2 MR. ACKERMAN: Good afternoon, your Honours, I am John

    3 Ackerman, I appear here with Ms Cynthia McMurrey on

    4 behalf of Mr. Esad Landzo. Thank you very much.

    5 JUDGE KARIBI-WHYTE: Thank you very much. Sorry for the

    6 short forgetfulness.

    7 MR. NIEMANN: Might we have document 124 on the screen,

    8 please.

    9 Your Honours, prior to the adjournment on Friday

    10 I had reached document 124, which is now on the screen.

    11 Your Honours, I had started to go through this document

    12 in order to make submissions about why it is that we

    13 submit that it is a reliable document and ought to be

    14 admitted into evidence.

    15 Your Honours will recall, this is a report and it

    16 was found on the premises of the --

    17 MR. MORAN: Excuse me, your Honours, we seem to be having a

    18 little problem with Mr. Karabdic's translation.

    19 MR. KARABDIC: It is better now.

    20 MR. MORAN: It has apparently been solved. Thank you very

    21 much.

    22 JUDGE KARIBI-WHYTE: It has improved his English.

    23 MR. NIEMANN: Your Honours, the centre paragraph of that

    24 document, which commences with the words, "in the course

    25 of the day of 25th October 1992", there is a reference

  3. 1 there to the fact that there was a warning of an attempt

    2 to assassinate and then, a little further down, there is

    3 a mention of the time, 1800 hours, and, "the two sniper

    4 bullets whizzed past my head and shoulders". I have

    5 already taken your Honours to references to that.

    6 Your Honours, into the next paragraph there is a

    7 reference, in the next paragraph, starting, "of course

    8 I knew", et cetera, in the last sentence there:

    9 "It is unfortunate that position is too well known

    10 to the HVO general staff. We believe that I am the only

    11 remaining hurdle to the achievement of this goal."

    12 Your Honours, in our submission this relates to

    13 the continued and -- the continued state of animosity

    14 that started to grow between the HVO and the BH army in

    15 the Konjic area, and particularly in which the accused,

    16 Mr. Delalic, was involved and has spoken of in other

    17 parts of the evidence.

    18 There are numerous references to this,

    19 your Honours, in other documents, and your Honours have

    20 also heard it in the evidence of General Pasalic.

    21 One particular document where it is mentioned is

    22 document 126, and if the first page of that document

    23 could please be put on to the screen now. The very

    24 bottom paragraph is the paragraph which I am referring

    25 to. This is a memorandum addressed to the main staff of

  4. 1 the supreme command. It is dated 27th April 1993.

    2 There is a reference to the HVO in paragraph 2 at the

    3 bottom there, where the author says:

    4 "The Konjic army command believes that the only

    5 one HVO company from the villages of Trija and Birja

    6 crossed over to the Chetnik side because they were no

    7 longer there."

    8 It goes on to make reference to the night the HVO

    9 forces crossed the lake.

    10 If we can go into the last page of that document,

    11 page 6, at the very top of the page, under paragraph 4,

    12 there is also a reference there in the second sentence

    13 of the first paragraph:

    14 "As for Pasalic and his staff (Ramic et cetera),

    15 he and most of his staff have been pro-HVO for a long

    16 time. We shall see whether this was under duress or

    17 willingly."

    18 Your Honours, going back now to document 124 on

    19 the first page again, second to last paragraph on that

    20 page, starting with, "I was also invited by a number of

    21 Bosnian associations in Switzerland and Germany to speak

    22 to their associations", there are other documents that

    23 I will take your Honours to subsequently which will

    24 relate to this question of speeches that would have been

    25 undertaken by the accused, Mr. Delalic, but the part that

  5. 1 I wish to go to at the moment is the last sentence,

    2 which says:

    3 "I therefore explained all our mission and plans

    4 to Edib Saric and the others."

    5 Your Honours, in document 130, at page 9 of that

    6 document -- the particular document, document 130, is a

    7 document which on its face is said to be written by the

    8 accused Mucic as former commander of the BH army camp,

    9 Celebici, and it is addressed to the 4th Corps staff in

    10 Mostar, and it is a report, a lengthy report. It is a

    11 report which relates to, amongst other things, the

    12 accused Zejnil Delalic, but the point that I wish to

    13 just go to in relation to this, your Honours, is that in

    14 the last sentence of that report, the very bottom of the

    15 page, there is a reference there to Saric. It says:

    16 "Under full moral, personal and military

    17 responsibility, I state as irrefutable fact that except

    18 in retrospect the TG commander Mr. Z Delalic had no

    19 knowledge of these events and neither ordered nor

    20 approved anything. On the contrary, he criticised me

    21 severely, as can be attested by his deputy, Saric, who

    22 was present when I talked about it."

    23 Your Honours, the reference in our submission to

    24 Saric in this document as the deputy to Zejnil Delalic

    25 is reflected again in the reference to Saric in the

  6. 1 document 124.

    2 JUDGE JAN: My memory may be faulty, but I have not heard of

    3 Saric before in this case. My memory may be very

    4 faulty.

    5 MR. NIEMANN: I am not sure, your Honours, whether it has

    6 been mentioned by other witnesses or in their testimony,

    7 but there are a number of documents that we have here

    8 that go to it; document 132, perhaps, as your Honour has

    9 raised the matter, I might go to that. This is a letter

    10 which appears to be written to the President, and it is

    11 about the accused Zejnil Delalic. In this letter, on

    12 the first page, he describes himself as Edib Saric in

    13 the very first sentence. Then he goes on to write about

    14 Zejnil Delalic, and sets out a biography there, and the

    15 appointment of Zejnil Delalic, at the very bottom of the

    16 page. It says in the centre of that page, page 1 of

    17 document 132, it makes reference that he has his own

    18 companies in Austria, Switzerland, Belgium and Germany.

    19 JUDGE JAN: Does this letter speak of Delalic's connections

    20 with Celebici camp?

    21 MR. NIEMANN: This letter we are now looking at, your

    22 Honour?

    23 JUDGE JAN: Yes, this one.

    24 MR. NIEMANN: I do not think it mentions the camp, not this

    25 particular letter. There are other references, but this

  7. 1 particular document does not refer to that.

    2 But the point I was just making there, your

    3 Honour, is that this is, in my submission, a reference

    4 to the deputy of the Tactical Group 1 commander.

    5 The final paragraph, going back now if I may to

    6 124, on the first page, in the final paragraph, the

    7 final sentence makes reference to that expression that

    8 we have seen a couple of times, "I have been in the war

    9 24 hours a day since last March, having previously

    10 abandoned all my businesses abroad."

    11 In my submission, your Honours, it is the

    12 similarity of language that is a factor which we would

    13 suggest goes to -- is another factor which goes to the

    14 reliability of this document, because the similarity in

    15 the use of expressions is a factor we would submit that

    16 your Honours should have regard to.

    17 If I could quickly just demonstrate that, in

    18 document 144 at page 6 in the centre of the page, if we

    19 could possibly have that, please, the very centre

    20 paragraph. Your Honours see there that there is a

    21 reference to:

    22 "March 1992, right up until 22nd November 1992,

    23 2200 hours, I was constantly there in my responsibility,

    24 without taking a day off, going anywhere or doing

    25 anything else. I was available 24 hours a day, except

  8. 1 for a trip to Zagreb at the beginning of March, where

    2 I was sent against my will at the request of the supreme

    3 command. I was a guest on a television show", which

    4 I referred to last time.

    5 This was also, I will not take your Honours to it,

    6 but I also made reference to similar type expressions in

    7 Exhibit 117.

    8 Then there is the next sentence:

    9 "Except for five days on mission in Zagreb in May

    10 1992."

    11 It then goes on, your Honours, in the very last

    12 sentence on that page:

    13 "I have not moved from the area along the Igman,

    14 Pazaric, Konjic, Jablanica, Prozor and Gornji Vakuf

    15 line."

    16 Your Honours, Exhibit 127, if we could have that

    17 one on the screen, please, is an order, signed under the

    18 hand of the co-ordinator and for the Territorial Defence

    19 and for the HVO commander. It is an order in 3rd June

    20 1992, it is addressed to the BHZTP Railway Company,

    21 Konjic main railway junction:

    22 "It is ordered to open up railway traffic at the

    23 Jablanica, Konjic, Hadzaric section."

    24 It relates, in my submission, to -- it has a

    25 relationship to the line that is mentioned in Exhibit

  9. 1 124 that I have just shown you.

    2 Going over on to the second page of Exhibit 124,

    3 if I may, and moving down to the paragraph starting, "at

    4 about 1400 hours" on the second page, about a third of

    5 the way down the page, it says:

    6 "At about 1400 hours, I crossed the border into

    7 Austria. Luckily I had a stamp in my passport dated

    8 26th November 1992. On the next day, I had a call on

    9 the mobile phone from Saric", Saric being the deputy

    10 that I took your Honours to previously, "who used the

    11 occasion to explain everything that remained to be

    12 explained."

    13 Your Honours, in Exhibit 131, at the bottom of

    14 131, and may I have that on the screen, please, yes, the

    15 first page, down, the very bottom paragraph there:

    16 "Two days later, Mihad Tinic et cetera came to me

    17 with a cellular phone, so I immediately tried to call

    18 the numbers in Zagreb and Vienna that Zejnil had left me

    19 with. I got through and from that day, all the way

    20 until the turmoil and our arrests in early December,

    21 I talked to him every day, even seven days a week."

    22 If your Honour goes to the top of this document,

    23 the person that would appear to be writing it describes

    24 himself as:

    25 "I was the deputy commander to the commander of

  10. 1 Tactical Group 1, Zejnil Delalic."

    2 As I have made reference to earlier, it is our

    3 submission that that person was Edib Saric, which is

    4 consistent, when one sees the reference to the phone

    5 call in Exhibit 131, and again the existence of the

    6 mobile phone and the phone call in that paragraph in

    7 Exhibit 124.

    8 Going back again to Exhibit 124, in the centre of

    9 the page, there is a -- the next paragraph immediately

    10 following:

    11 "Only a couple of days earlier, Arif Pasalic

    12 suggested I should leave the area for a while and

    13 recommended a way to do it."

    14 Your Honours, in Exhibit 131 -- I am sorry to have

    15 to go back again, but 131 -- there is a reference which

    16 seems very similar to that in the middle paragraph of

    17 131, in particular:

    18 "A Pasalic knew of it and in my presence he warned

    19 him of a potential ambush on the way through

    20 Herzegovina."

    21 There is a reference to providing him with papers:

    22 "He personally told me that he was going to travel

    23 that night and that Arif believed that he would only be

    24 going a day or two later."

    25 Your Honours, again going back to 124 in the

  11. 1 middle of the page, the next paragraph which has the

    2 number 3 in front of it that starts:

    3 "According to some Croatian newspapers, I had

    4 flown in a helicopter from Kobiljaca, while other papers

    5 said I had left for Kresevo."

    6 There are, in our submission, a number of

    7 references to these Croatian newspaper reports that

    8 appear in Exhibit 126 that I had taken your Honours to

    9 before. If we could just have the first page of 126,

    10 the top paragraph. You have a reference there in the

    11 sentence:

    12 "Due to the fact that I knew them personally and

    13 the fact that the Croatian media wrote and reported that

    14 I had gone over to the Chetniks."

    15 There is also a reference in document 130, on

    16 page 6 of document 130, the third paragraph from the

    17 bottom, if I could, please. Firstly there is a

    18 reference to the discord:

    19 "I am surprised that our leaders do not realise

    20 that this discord is well planned within the BH army,

    21 planned by both the Chetniks and the headquarters of the

    22 Croatian Community. Judging by the media, it is obvious

    23 that both the other sides respect Zejnil more than the

    24 BH army and it is unfortunately that I, a Croat, must

    25 say that."

  12. 1 This document, I would indicate, is a document

    2 that is said to be written, or is written, by the

    3 defendant Mucic.

    4 Your Honours, further down, going back now to

    5 document 124, if I may, towards the bottom of the page,

    6 in the sentence that starts with "(a).", there is a

    7 reference there to Arif Pasalic:

    8 "Is Arif Pasalic conducting this investigation on

    9 your orders or the orders of the Mostar HVO, or on his

    10 own?"

    11 I have shown your Honours reference to the fact

    12 that it is suggested that Arif Pasalic may have been

    13 sympathetic to the HVO. I took your Honours to that,

    14 and --

    15 JUDGE JAN: Mr. Niemann, there is one thing about these

    16 documents, the documents you have shown to us so far,

    17 show that he had left Konjic on 25th November at 8.00 pm

    18 in the evening. There was a criminal charge against him

    19 of desertion and it has been given the colour that he

    20 had joined the other side and left in a helicopter; he

    21 was merely trying to defend himself. How are these

    22 documents relevant to the charges against him before

    23 us?

    24 MR. NIEMANN: Your Honours, it is not that aspect of it.

    25 I am drawing your attention to these factors because, in

  13. 1 our submission, that shows that they are documents that

    2 can be relied upon and should properly be admitted into

    3 evidence.

    4 JUDGE JAN: There is a criminal charge against him.

    5 MR. NIEMANN: It is not for that reason. I am doing it to

    6 show their indicia of liability.

    7 JUDGE JAN: I just wanted to draw your attention -- go

    8 ahead.

    9 MR. NIEMANN: The relevance of them, your Honours, relates to

    10 other issues. The relevance particularly of this

    11 document relates to his position as Tactical Group 1 --

    12 commander of Tactical Group 1, the fact his deputy was

    13 Saric, and all I am doing in drawing your Honours'

    14 attention to these matters is that it shows this indicia

    15 of reliability.

    16 Your Honours, some of the documents vary with

    17 relevance, but some of the relevance of them is their

    18 interdependence on other documents. There are other

    19 documents which are, in our submission, much more

    20 relevant, but without these documents they may not have

    21 that mutual indicia of reliability, because it is the

    22 interrelationship which exists between them which we

    23 suggest makes them reliable and ought to be therefore

    24 accepted into evidence, so true it is that you can pick

    25 any one of these documents -- I withdraw that. True it

  14. 1 is that you can pick a number of these documents and

    2 say, "standing on its own, what is the relevance of this

    3 document? Why are you trying to put this into

    4 evidence?" The reason is, of course, what we are saying

    5 is that some of the things that are said in this

    6 document do not appear relevant on their own, but they

    7 go to show that there is a consistent pattern of events

    8 described, of circumstances, of similar terminology

    9 which appear -- which run as a thread through all the

    10 documents and makes them, in our submission, reliable

    11 and authentic because of this thread that runs through

    12 them.

    13 If someone says, "these are forgeries" or

    14 whatever, or somebody planted them in the premises or

    15 any such suggestion, it is curious then that they would

    16 have this thread, because one would have to have gone to

    17 extraordinary lengths to be able to achieve that

    18 objective, particularly getting to the point where you

    19 are creating similar phrases and expressions and

    20 events. In our submission, all this goes to establish

    21 that.

    22 Your Honours, we have heard the evidence of Arif

    23 Pasalic and he has -- already there have been some

    24 documents tendered, the documents tendered from this set

    25 of exhibits, which are now exhibits before you, so in

  15. 1 our submission that in itself is significant, that Arif

    2 Pasalic comes along to testify in these proceedings, he

    3 is shown Exhibit 1 37 -- if I could have that please --

    4 which is documents recovered -- document 137 which will

    5 appear on your screen momentarily, was a document found

    6 at the premises of INDA-BAU. It was found at those

    7 premises, so any suggestion that all of this is just a

    8 set-up or a forgery or whatever, it is curious, if that

    9 is so, that when this document is produced to General

    10 Pasalic --

    11 JUDGE JAN: Can it be made more legible?

    12 MR. NIEMANN: Particularly the signature down the very

    13 bottom, in fact the bottom part of the document is

    14 perhaps the more interesting part, the very last

    15 paragraph. When this document, which has been recovered

    16 by the Austrian police, from the premises of INDA-BAU,

    17 is shown to General Pasalic, he says "yes, that is my

    18 document". It is then tendered and becomes an exhibit

    19 in the proceedings, so in my submission that is

    20 significant in terms of the argument advanced by the

    21 Prosecution that these documents are reliable and is an

    22 indicia of reliability of the other documents, because

    23 the events described in this document, which was

    24 recognised by General Pasalic as his document, which was

    25 tendered in these proceedings, relates to these criminal

  16. 1 charges which he said he was responsible for

    2 instigating --

    3 JUDGE JAN: There is a charge sheet along with that showing

    4 the exact charges against him. One was of desertion and

    5 the other was of getting someone liquidated, a person

    6 bearing a Muslim name.

    7 MR. NIEMANN: Yes. So in our submission, a document which

    8 has been proved and admitted, we have here -- going back

    9 to Exhibit 124 -- a reference to that very issue, the

    10 very question of the investigation which General Pasalic

    11 attested to, which we submit further enhances the

    12 reliability of this particular document.

    13 Going to the last page of document 124, the

    14 paragraph commencing number 5, at the top of the page,

    15 there is a reference in this document to the supreme

    16 command general staff, and then the next to be slandered

    17 is Sefer, and your Honours have heard and seen lots of

    18 documents which have been issued by the chief of the

    19 general staff, Sefer Halilovic, and again referred to

    20 there and then the next line down, the reference to,

    21 "finally Divjak, who is certain to be finished."

    22 Again, your Honours have heard in evidence from

    23 General Divjak and how General Divjak was with the

    24 accused Zejnil Delalic in the latter part of 1992.

    25 Your Honours have heard how General Pasalic speaks of

  17. 1 also having General Divjak arrested, but for his

    2 protection.

    3 Your Honours, then there is again a reference to

    4 the HVO wanting to frustrate things, and then again one

    5 of these similar threads that I spoke of appears, when

    6 it says:

    7 "I will offer a reward of 10,000 German Marks to

    8 anybody who can prove that I have sold a single gun."

    9 I refer your Honours to document 144, document 144

    10 on page 3. It is the second to last paragraph, if

    11 I may, starting:

    12 "I bought 2,000 uniforms", which is another

    13 indicia, I say, of this thread, but your Honours see

    14 four lines down in the paragraph:

    15 "I will give 10,000 German Marks to anyone who can

    16 confirm or testify that I sold a single bullet, radio

    17 transmitter, gun, shell or anything similar."

    18 Not exactly the same words, but about the same

    19 topic and expressed almost in the same way. In our

    20 submission, that is very significant.

    21 Finally, there is again that reference, if we may

    22 go back to the final page of Exhibit 124, again that top

    23 paragraph, there is a reference there to the 2,000

    24 uniforms, you can see in the second to last line of the

    25 first paragraph on the third page of that document.

  18. 1 Your Honours, finally, the signature is, in our

    2 submission, significant. There is a reference there to

    3 "fire", at the very bottom:

    4 "Greetings to the homeland."

    5 Then it says "fire" and a Bosnian word which I am

    6 instructed means fire, and then immediately under is

    7 signed, "Zejnil Delalic". Your Honours, this reference

    8 to signing off under the name "fire" is, in our

    9 submission, also a matter which we say fits into this

    10 pattern.

    11 JUDGE JAN: What does "fire" mean in Bosnian language? What

    12 would that signify?

    13 MR. NIEMANN: The word is "oganj".

    14 JUDGE JAN: Has it any special significance in the Bosnian

    15 language?

    16 MR. NIEMANN: I submit, your Honours, that it is a code

    17 name.

    18 JUDGE JAN: I see. Then why sign, if that is using a code

    19 name?

    20 MR. NIEMANN: I do not know, your Honour. I cannot explain

    21 that. All I know is that it is something that emerged

    22 by other documents as well, and I can take your Honour

    23 immediately to one document. There is a reference to

    24 it, I believe, in the video, Exhibit 116. I am just

    25 looking through the transcript quickly for that, but

  19. 1 there is a reference to it there. There is also --

    2 I cannot see it now, but in Exhibit 126, page 6, at the

    3 very bottom of the page, where this document is signed

    4 off. On this occasion, we do not see the name Zejnil

    5 Delalic simply signed, but the interpretation here is

    6 "flame", which must be an interpretation of "fire", but

    7 in my submission, your Honours, it is again a reference

    8 to this pattern that appears.

    9 So, your Honours, there are other factors that

    10 I could take your Honours to, but in relation to this

    11 document, where we would submit it points to a pattern

    12 that runs through all the documents, but these are some

    13 of the main examples of that, and in my submission,

    14 having regard to all of the evidence your Honours have

    15 heard, having regard to the other exhibits that were

    16 located at the premises, having regard to the fact that

    17 some of those exhibits have already been tendered in

    18 evidence and are accepted as authentic documents, that

    19 these are more than adequate indicia of reliability such

    20 as to permit this document to be admitted into evidence

    21 and relied upon and I move that it be tendered and

    22 accepted in evidence.

    23 JUDGE KARIBI-WHYTE: Any observations, please?

    24 MR. O'SULLIVAN: Yes, your Honours. We object to the

    25 admission of this document 124 for two main reasons.

  20. 1 First, the issue of reliability and second, the issue of

    2 relevance. If I might expand briefly on those two

    3 points, I begin by observing that my learned friend

    4 speaks of "threads". Earlier, with the Austrian police,

    5 we talked about "chains of custody" which fell apart,

    6 and now the threads are dangling as well, and soon they

    7 will be grasping at straws in this issue, your Honours.

    8 My friend refers to document 124 and takes

    9 your Honours through at least seven other documents. In

    10 so doing, your Honours, he is asking you to compare and

    11 juxtapose names, words, phrases, places and events in

    12 document 124, which is not in evidence, in comparison

    13 with seven other documents which are not in evidence.

    14 This, in my submission, amounts to the Prosecutor coming

    15 very close to giving evidence in this case. The proper

    16 way to proceed is as he did with Exhibit 137, the one he

    17 said he showed to General Pasalic, the one that General

    18 Pasalic authenticated.

    19 The outstanding issue before your Honours is not

    20 only authenticity with regard to the provenance of these

    21 documents but also authenticity as to the authorship.

    22 When my learned friend says that he can interpret

    23 code names, he can tell you who Mr. Saric is, last week

    24 he compared two documents where in one we saw the name

    25 Ramic for months, we know that reference to a family

  21. 1 name such as Kuljanin, Mrkajic, not to mention Delalic,

    2 can refer to many different people, and for my friend to

    3 suggest that he can tell us what a family name or a code

    4 name means is beyond the pale.

    5 My friend seems to be suggesting that by showing

    6 one document to have been authenticated, Exhibit 137 by

    7 General Pasalic, necessarily all the documents to which

    8 he is referring are authenticated. This is completely

    9 fallacious reasoning. It ignores the fact of the burden

    10 on the Prosecution to prove all the elements of its

    11 documents.

    12 The more conventional way to proceed, and I urge

    13 the Trial Chamber to insist the Prosecution to proceed

    14 in this way, is to call witnesses who can authenticate,

    15 who can verify the reliability of documents. To have my

    16 friend stand up and take words, phrases and paragraphs

    17 out of context, to weave together a thread which can

    18 easily be criticised, cannot be relied upon, is not the

    19 appropriate way to proceed. In June your Honours did

    20 the same thing where the Prosecution opted not to call

    21 the proper police officers from Austria; you clearly

    22 indicated to them they were not proceeding in the proper

    23 fashion.

    24 In my submission this amounts to much the same

    25 thing without viva voce evidence to verify the

  22. 1 reliability of these documents. We are getting nowhere,

    2 we are wasting time and I urge your Honours to stop the

    3 Prosecution from proceeding in this way.

    4 Finally, on authenticity, I repeat there is no

    5 proof as to authorship and provenance of documents, and

    6 as far as relevancy goes, Exhibit 124 at least does not

    7 tend to prove or disprove any issue related to the

    8 indictment in this case.

    9 MR. GREAVES: Your Honour, it is a pleasure coming to court

    10 this afternoon to see a conjuror at work. Document

    11 number 124 depends upon a number of other documents. It

    12 is my submission to you that it is an illusion.

    13 Document number 131 is written by a man allegedly called

    14 Saric. I draw your Honours' attention to this: please

    15 look at the title of the document, "The Adventurer".

    16 Approach this document with care. Why is the author of

    17 it heading it, "The Adventurer"? Does that suggest to

    18 you, as I respectfully submit it should, that it is a

    19 document of perhaps less than complete integrity and

    20 truth?

    21 Secondly, there is no evidence whatever that this

    22 document has been produced by the man called Saric.

    23 Indeed, there is no evidence at all, in my submission,

    24 that this man Saric exists. The same may be said of

    25 document 132. There is simply no evidence whatever that

  23. 1 this is produced by a man called Saric. It is a

    2 document that might properly be described as flimsy.

    3 Of course, the danger is that we are introducing

    4 into evidence documents written by people who simply are

    5 not witnesses in the case. That gives, at the very

    6 best, this document and the other document allegedly

    7 written by Saric, zero weight, in my respectful

    8 submission.

    9 Then we come to the railway document.

    10 Your Honours may feel that the link between that

    11 document and document 124 could, at its very highest, be

    12 described as tenuous. Document 130, a document

    13 alleged -- which the Prosecution asserts is written by

    14 the defendant Mucic; there is no evidence, no evidence

    15 at all, that this document was produced by Mucic. As

    16 against him, at the very least, it is not relevant, it

    17 is not probative, in the absence of any proof that it is

    18 his document.

    19 In my respectful submission, that document in

    20 particular should not be admitted. When you look at

    21 those criticisms that I have, and I invite your Honours

    22 to listen with care to what my learned friend

    23 Mr. O'Sullivan has said, when you take those defects, it

    24 can properly be described as an illusion that you are

    25 invited to take on board, a great conjuring trick.

  24. 1 MR. ACKERMAN: Your Honours, I cannot help but be struck by

    2 an almost Alice in Wonderland kind of contrast between

    3 Friday morning and what we have been doing since then.

    4 Friday morning a man was brought here, at great expense,

    5 from the Bosnian government to authenticate documents

    6 for you, which he was only able to do, he said, if he

    7 could see the colour of the ink that stamped them and if

    8 he could make himself familiar with the signatures that

    9 were on them and otherwise independently verify that

    10 those documents were authentic. That was seen as an

    11 important process, both by the Office of the Prosecutor

    12 and by this court, I believe.

    13 Then after having had some lunch, all of a sudden

    14 we seem to have entered a new world, where documents

    15 with absolutely no indication of authenticity at all, no

    16 custodian, no nothing, are just being floated around the

    17 courtroom with the argument that there are threads

    18 between them that somehow give them so authenticity.

    19 Most of them are unsigned, most of them purport to be

    20 addressed to someone, but none of those someones have

    21 appeared here and said "yes, I received such a letter".

    22 Many, many times in my own life, and I am sure

    23 this is true of virtually everyone in the room, I have

    24 sat in my office or in my home and I have written;

    25 I have written letters that I have never sent, I have

  25. 1 written stories. I enjoy writing, and I would hate that

    2 at some point, someone would take those musings of mine

    3 and suggest that there is some authenticity to them with

    4 regard to facts. Some of the letters that I have

    5 written in anger and never sent, for instance, sometimes

    6 were not as factual as they might have been.

    7 JUDGE JAN: I hope they were not letters to the

    8 judges.

    9 MR. ACKERMAN: No letters to the judges, your Honour, along

    10 that line. I have always, I think, had good enough

    11 sense to tear them up before I sent them. It seems to

    12 me that letters, orders, things of that nature, really

    13 do not take on any kind of evidentiary quality unless

    14 there is proof you actually sent them to someone,

    15 because otherwise you might just be writing for your own

    16 amusement.

    17 That is what we are seeing here. We are seeing

    18 documents without foundation, documents without

    19 authenticity, documents that may or may not have meaning

    20 and it is like gathering up someone's garbage from

    21 outside their house and bringing it in here and saying,

    22 "after we have brought someone to tell you about the

    23 colour of seals on documents so you can be certain they

    24 are important, we have this black bag of garbage that we

    25 would also like you to consider". I just think it is

  26. 1 outrageous. This is not the way evidence should be

    2 presented to a court. What is happening here is even if

    3 somewhere down the road you agree that this is not the

    4 way evidence should be presented to the court,

    5 Mr. Niemann is doing a splendid job and I commend him for

    6 standing here reading it all to you so that even if you

    7 decide that it should not be before you, you will have

    8 heard it, and you will know what is in it. I think this

    9 needs to be stopped. I do not think it is proper.

    10 MR. MORAN: Your Honour, on a slightly different tack,

    11 limiting my remarks just to this particular exhibit --

    12 MR. NIEMANN: Your Honours, could I just indicate that these

    13 documents are not sought to be admitted against

    14 Mr. Moran's client.

    15 MR. MORAN: We are going to have some limited admissibility,

    16 none of these documents are going to be admitted against

    17 my client? Any of the documents, or just this

    18 document?

    19 MR. NIEMANN: Certainly this document is not admitted against

    20 him.

    21 MR. MORAN: Your Honour, I will not say that it does not

    22 prove anything one way or the other as to anyone, as to

    23 relevance.

    24 MR. NIEMANN: Your Honours, if I may reply to a couple of

    25 these points, firstly, it is very convenient for the

  27. 1 Defence to stand up and tell you how it is essential

    2 that the only way these documents can ever be admitted

    3 in these proceedings is to call the author, when they

    4 know that the author is their clients and they know that

    5 there is no way the Prosecution can ever call them, so

    6 they are then proceeding to tell you, "this evidence

    7 never gets before any courts anywhere in the world

    8 because the Prosecution can never call the author of the

    9 document if he is an accused person, so simply the court

    10 is deprived of that evidence". That your Honour, in my

    11 submission, is as much Alice in Wonderland as they would

    12 ever suggest anything that I am doing here is.

    13 Indeed, garbage in the garbage tin could be

    14 extremely valuable evidence if it is relevant and

    15 relevant to the issue in decision. Maybe hair samples,

    16 there may be blood, there may be a knife, a bullet, a

    17 gun, there may be anything in the garbage bin which may

    18 well be relevant and would be admissible.

    19 JUDGE JAN: Do not take him literally.

    20 MR. NIEMANN: Your Honours, I am sure that they wish to be

    21 taken literally. But, your Honours, these are not

    22 documents that were found in the garbage bin. These are

    23 documents that were filed on the premises and found on

    24 the premises in an orderly fashion, as if they were not

    25 intended to be thrown in the garbage bin.

  28. 1 Certainly we all may from time to time write

    2 something which we do not intend, which perhaps is

    3 inaccurate, that can be shown in my submission. The

    4 matters that I am drawing your Honours' attention to is

    5 the fact that these documents are consistent with the

    6 balance of the evidence. They are consistent and

    7 because they are consistent they are in our submission

    8 reliable. These are factors which are the indicia of

    9 reliability and make them properly admissible.

    10 So, your Honours, in our submission it does not

    11 assist, if that is what Mr. Ackerman is doing, because it

    12 has not been asserted again that Exhibit 124 was

    13 admitted against his client, to say that these may be

    14 just musings that have been written down. One often

    15 sees in cases diaries admitted against accused persons

    16 which are often generated in a similar way, where the

    17 contents of the diaries can be extremely relevant and

    18 admissible. In my submission, it does not assist to

    19 relate these to that sort of writing. These documents

    20 can be seen from their face to relate to the topic at

    21 hand, they relate to the issue at hand. They are a

    22 variety of documents, some of them are at a more formal

    23 stage than others, others may only be drafts, but

    24 your Honours, in my submission they are not garbage in

    25 the garbage can, they are in fact relevant, admissible

  29. 1 and it is entirely proper for me to make submissions to

    2 you about a thread of consistency that runs through them

    3 in order to demonstrate their authenticity.

    4 In my submission, your Honours, this document,

    5 Exhibit 124 should be admitted into evidence.

    6 MS. RESIDOVIC: Your Honours, though my learned colleague

    7 has already explained our general objections, may I add

    8 a few specific objections, since my learned colleague

    9 Mr. Niemann has commented on them already?

    10 MR. NIEMANN: Your Honours, I do object to this. Are we

    11 going to have both sides of the Defence get up and make

    12 submissions about these things? If that is going to be

    13 the case, I think the idea of the Prosecution closing

    14 its case before the end of the year is a very faint

    15 possibility. Every time I make a submission, I do not

    16 have my colleagues here all hop up and give us their

    17 views on it, which I am sure they could do and they

    18 would be very helpful. We constrain ourselves, and

    19 I would ask that the Defence be constrained in a similar

    20 fashion.

    21 MS. RESIDOVIC: Your Honours, I respect your decision that

    22 two of us should never comment on the same point, but

    23 I wished to make a few remarks in connection with the

    24 new points raised by the Prosecution, and if I may be

    25 allowed, I will do that. If not, I will refer to other

  30. 1 documents, but I will not be repeating the things that

    2 my learned friend Mr. O'Sullivan said.

    3 JUDGE KARIBI-WHYTE: I have always said, the rules of debate

    4 do not allow a ding-dong practice. I think there is a

    5 limit, so I think maybe your submissions are over. That

    6 was the reply. If you think, after that reply, you also

    7 should be entitled to speak, that is not right. One

    8 counsel is on his or her feet; you must put the

    9 arguments the way you think you could do it.

    10 MS. RESIDOVIC: Thank you. My colleague O'Sullivan has

    11 said everything that was necessary in connection with

    12 this document.

    13 JUDGE KARIBI-WHYTE: I do not think you have go on with a

    14 criticism, because I think it is enough to challenge

    15 every aspect of the Prosecution's presentation. That is

    16 all for the time being? We will reserve our ruling

    17 until later.

    18 MR. MORAN: Your Honour, can the record be clear that there

    19 was no offer of this document against Mr. Delic?

    20 JUDGE KARIBI-WHYTE: How many times will that be said?

    21 MR. MORAN: Your Honour, sometimes I get a little nervous

    22 about those things. I apologise if I am beating a dead

    23 horse.

    24 JUDGE KARIBI-WHYTE: I suppose so. It might not arise

    25 again. All right, I think it has been said

  31. 1 sufficiently.

    2 What next do you have for us?

    3 MR. NIEMANN: I have more of the documents, your Honour.

    4 I have many more of these documents, your Honour. I do

    5 not know of any other way to reduce the amount of time

    6 it takes to deal with them. These are documents that

    7 were found on the premises and we seek to tender them.

    8 JUDGE KARIBI-WHYTE: You can go ahead. It is your case.

    9 MR. NIEMANN: Thank you, your Honour. Might I move on to the

    10 next document, Exhibit 124. Might that be displayed --

    11 sorry, 125. Might that be displayed?

    12 MR. ACKERMAN: Your Honour, before this is displayed, I want

    13 to rise to object to its even being displayed. This

    14 document deals with a matter that Mr. Niemann --

    15 I understand that is what it deals with, that Mr. Niemann

    16 had agreed as late as last week was not material to this

    17 case, and did not have any business coming before this

    18 court. I do not know if I am confused about the

    19 document or not. Let me just look at it. (Pause).

    20 I have reason to believe that this refers to the Bubalo

    21 matter which we had basically agreed not to get into and

    22 it was not appropriate to come before the court. That

    23 is why I am objecting.

    24 MR. NIEMANN: Your Honours, the position is, and has been,

    25 and has not changed, is that we are not seeking to rely

  32. 1 on the document for any other purpose than the fact that

    2 it relates to or goes to prove the reference to the

    3 position held by the accused Delalic and Mucic. We are

    4 not seeking to rely on it or to introduce into these

    5 proceedings any other aspect of the matter. We would

    6 ask your Honours to disregard any other reference to it,

    7 but it has not been the case at all that there was an

    8 agreement that it would not be tendered into evidence.

    9 It was agreed, and Mr. Moran particularly is aware

    10 of this, it was agreed to be tendered into evidence on

    11 the limited basis that we argue that the persons in

    12 authority who went to create these documents, including

    13 General Pasalic, who already discussed a document which

    14 is now an exhibit, ought to have known the rank and

    15 position held by the persons, by the accused persons

    16 Delalic and Mucic, and that therefore it has that

    17 indicia of reliability.

    18 This particular document is --

    19 MR. ACKERMAN: Your Honour, I do not know if you are finished

    20 responding to my argument.

    21 MR. NIEMANN: I have not.

    22 MR. ACKERMAN: Please let him finish responding, but I have

    23 an additional something to say.

    24 MR. NIEMANN: With this particular document, your Honours, we

    25 say it is relevant for the very limited purpose that it

  33. 1 goes to show the thread of documents in relation to this

    2 point. It is merely a link in that chain, a link in

    3 that thread of documents which we say in combination

    4 establish the reliability of the documents in toto. In

    5 other words, it is merely a small part of that mosaic.

    6 MR. ACKERMAN: Your Honour, I would have no objection, other

    7 things being established, that is reliability,

    8 authenticity and relevance, to an offer for the purpose

    9 which Mr. Niemann has suggested that it be offered for.

    10 The way I have seen that handled and the best way

    11 I think to handle it is to take a permanent black marker

    12 and redact from the document all those things that the

    13 Prosecution does not intend it to be offered for,

    14 because there are judicial officers beyond this Trial

    15 Chamber who might be studying these documents for

    16 whatever purpose they might be studying them, with

    17 relation to my client Mr. Landzo in the future.

    18 I have no question, but what this particular Trial

    19 Chamber, this particular panel of three judges would

    20 clearly be able to separate in their own minds what the

    21 document is being offered for from the other things

    22 contained therein. I cannot say the same about future

    23 judges who might be making decisions with regard to

    24 documents in this case, so the safe way to deal with it

    25 is for the Prosecutor to take a permanent black marker

  34. 1 and on the copy going into evidence redact everything

    2 they do not mean to be offering it for.

    3 MR. NIEMANN: I find, your Honour, this is an extraordinary

    4 submission having regard to the document, bearing in

    5 mind in particular that Exhibit 137 has been admitted in

    6 unredacted form into evidence. It relates to the very

    7 question -- this particular document is a decision of

    8 the public prosecutor that all charges against the

    9 accused Zejnil Delalic and Zdravko Mucic are dropped, so

    10 why my friend would now stand up and say that some judge

    11 may be misled by it is an extraordinary submission in my

    12 view, your Honours. I would have thought that if

    13 anything else, they would have demanded that this

    14 document be admitted into evidence.

    15 But as I say, your Honour, we are not seeking to

    16 put it into evidence in order that it be evidence to the

    17 fact that the charges against Mucic and Delalic are

    18 dropped. We say whether they were dropped is

    19 irrelevant, because, your Honours, we are not tendering

    20 any of these documents so that your Honours would have

    21 regard whatsoever to the criminal charges, but,

    22 your Honours, if Mr. Ackerman is now telling you that he

    23 is concerned about other judges reading it and thinking

    24 that these gentlemen may have been accused of some

    25 charges and that that for some reason or another may be

  35. 1 a bad thing. I find it extraordinary that he would

    2 stand up and object to the tender of this document,

    3 which achieves the very objective that he is concerned

    4 about.

    5 MR. ACKERMAN: Mr. Niemann may be right, it may be

    6 extraordinary, but it also is consistent. When Exhibit

    7 137 was offered, I believe that I objected very

    8 strenuously to those portions of it which I felt were

    9 irrelevant and I believe that I suggested at that time

    10 that they should be redacted, and trying to be

    11 consistent, I think I am right and I think with regard

    12 to 137, that language should also be redacted from it.

    13 JUDGE KARIBI-WHYTE: Any other arguments?

    14 MR. NIEMANN: Your Honours, whether or not it is redacted,

    15 I do believe that your Honours are perfectly capable of

    16 ignoring the references in there to the charges as such,

    17 and accepting this document on the very limited basis

    18 that we submit it should be accepted into evidence

    19 under, and that is it goes to the mosaic of documents

    20 that are relevant in order to establish their position

    21 that I have referred to earlier.

    22 JUDGE KARIBI-WHYTE: We have listened to your arguments.

    23 This is not a reply to what Mr. Ackerman said.

    24 MR. NIEMANN: I will then proceed, your Honour, to examine

    25 the document, if your Honour pleases. Perhaps it could

  36. 1 be put on the screen.

    2 MR. ACKERMAN: Your Honour, just for the record, I take it

    3 that my objection and my suggestion on redaction is

    4 overruled?

    5 JUDGE KARIBI-WHYTE: It is on record. We will examine it.

    6 It depends on what we do with the exhibit itself. You

    7 have suggested it should be redacted.

    8 MR. ACKERMAN: My suggestion was it should be redacted before

    9 it was displayed to your Honours, so only the portions

    10 that the Prosecution is offering would be displayed to

    11 your Honours, since you sit as finders of fact, and with

    12 regard to future judicial bodies who may be considering

    13 this evidence. I just want the record to show whether

    14 or not my objection in that regard has been sustained or

    15 overruled.

    16 JUDGE KARIBI-WHYTE: Actually, I do not think it is really

    17 necessary for the purposes of this case. If the

    18 argument is for other cases or for other readers such

    19 redaction is necessary, I suppose it might be, but for

    20 our own purposes, I do not think it is necessary.

    21 MR. ACKERMAN: I am talking about perhaps the Appellate

    22 Chamber, your Honour, or perhaps a future judicial body

    23 that might be --

    24 JUDGE KARIBI-WHYTE: Are you sure your objection will not be

    25 on record?

  37. 1 MR. ACKERMAN: I think it probably is on record and I think

    2 now your Honours' view of that objection is on record,

    3 so I have probably made my record, I can sit down and be

    4 quiet.

    5 JUDGE KARIBI-WHYTE: If it is not redacted.

    6 MR. NIEMANN: Your Honours, in relation to document 125 that

    7 appears on the screen, on the original Bosnian version

    8 of that document, it is a typewritten document, it bears

    9 a seal on the bottom of the document, and it appears to

    10 be signed. In our submission, your Honour, it has all

    11 the appearance of a formal document of the type that

    12 your Honours have seen. It is a document that was found

    13 on the premises of INDA-BAU --

    14 JUDGE KARIBI-WHYTE: Let me interrupt you. It was a mistake

    15 to have actually asked you to continue, because I think

    16 we should be going for a short break. But before we go,

    17 I think when we return at 4.30, we might like to take on

    18 the arguments on the motion for leave to call Witness

    19 V. I do not know whether the Defence is aware of that

    20 motion, the motion for protective measures. I think in

    21 addition the motion to call Witness J. I do not think

    22 it will take too long. We will go for a short break.

    23 (4.00 pm)

    24 (A short break)

    25 (4.30 pm)

  38. 1 JUDGE KARIBI-WHYTE: Mr. Niemann, can we hear you on your

    2 motions? Who is presenting it?

    3 MR. NIEMANN: Ms McHenry will be arguing it for the

    4 Prosecution.

    5 JUDGE KARIBI-WHYTE: Let us hear it.

    6 MS. McHENRY: Good afternoon, your Honours.

    7 JUDGE KARIBI-WHYTE: Good afternoon.

    8 MS. McHENRY: I will not be long, your Honours. I believe

    9 the bases for our motions have been set out in our

    10 written pleadings, which were filed on Friday and given

    11 to the Defence Friday afternoon. Our first two motions

    12 concern Witness V, a security officer in the Tribunal.

    13 We first seek leave to call Witness V, his name was not

    14 on the initial witness list because we had not planned

    15 on calling Witness V at the time we filed our witness

    16 list. In the middle of October, there were some issues

    17 that came to Witness V's attention which we think is

    18 admissible and relevance for the case in chief. It may

    19 also be separately grounds for contempt that

    20 your Honours may also hear at the same time, but the

    21 present motion is with respect to its relevance as to

    22 the case in chief.

    23 With respect to Witness V we have also filed a

    24 motion seeking that his identity be kept secret from the

    25 public and media because this security officer has

  39. 1 worked in Bosnia and wishes to do so in the near

    2 future. I believe he has some prospects in that regard

    3 and he believes if his identity were known it could

    4 affect his ability to obtain and perform his job. Thus

    5 he has indicated that he will only testify if his

    6 identity can be protected from the public and media.

    7 We have also a motion for protective measures for

    8 Witness J. He is a witness who has already testified,

    9 who heard certain remarks made by the accused which we

    10 think again is relevant evidence at trial. The witness,

    11 who was already a vulnerable witness, is traumatised and

    12 has indicated that he does not wish to be in the same

    13 room with the accused again. Thus he seeks permission

    14 to testify using the remote witness room. There would

    15 be no restrictions on the rights of the accused or

    16 Defence counsel to view the witness. That is not what

    17 he seeks protection from.

    18 Your Honour, I believe the testimony of both

    19 witnesses will be very short, but nonetheless, we are

    20 requesting it as relevant evidence for the reasons

    21 stated in our motions. Unless your Honours have any

    22 questions, that concludes my submission.

    23 JUDGE JAN: Have we given you permission to recall

    24 Witness J?

    25 MS. McHENRY: No, your Honour, I believe Mr. Niemann spoke

  40. 1 to that on Friday.

    2 JUDGE JAN: You must seek permission to recall Witness J,

    3 then the other thing will arise.

    4 JUDGE KARIBI-WHYTE: He has been discharged.

    5 MS. McHENRY: In that case, your Honour, may I amend our

    6 motion to make also an oral motion to recall Witness J.

    7 I am sorry, I thought Mr. Niemann mentioned this, that we

    8 did not need to do so, but I would seek leave to orally

    9 request leave to call Witness J with respect to the

    10 matters that I believe everyone knows.

    11 JUDGE JAN: Why do you want to recall Witness J?

    12 MS. McHENRY: Because we believe the evidence concerning

    13 the alleged threat made to Witness J is direct evidence

    14 of consciousness of guilt and therefore that it is

    15 admissible evidence. It is the case in many systems

    16 that threats to a witness, as well as flight of an

    17 accused, are both, in addition to potentially being

    18 criminal offences in their own right, are evidence of

    19 consciousness of guilt. In particular, we believe that

    20 the reason that the accused have threatened the

    21 witnesses is because they do not want these witnesses to

    22 testify, because they realise that their truthful

    23 testimony will convict them, so we believe it is

    24 relevant.

    25 JUDGE JAN: The accused gave the threat while the witness

  41. 1 was appearing in the witness box or before that? Before

    2 he appeared in the court?

    3 MS. McHENRY: Your Honour, the threat was during the

    4 witness's testimony, and we believe --

    5 JUDGE JAN: The witness had already come, so issuing a

    6 threat, how would that prove his guilt?

    7 MS. McHENRY: Your Honour, it could certainly intimidate

    8 the witness, it could upset the witness, it could

    9 prevent him from coming back into the courtroom, all

    10 those things.

    11 JUDGE JAN: That is intimidating a witness; that is a

    12 contempt. Those are separate proceedings, contempt

    13 proceedings. How is it relevant to the Celebici case?

    14 MS. McHENRY: It is the contention of the Prosecution,

    15 your Honours, and in many legal systems, that

    16 threatening a witness, including while he is giving

    17 evidence, is evidence of consciousness of guilt. Had it

    18 occurred after the witness had finished, then it may be

    19 that there would be less evidence, but certainly it can

    20 be inferred that the accused were trying to intimidate

    21 the witness from either being so upset that he was

    22 unable to present a credible appearance, or such that he

    23 would refuse to come into the courtroom again, or

    24 upsetting him so that he would be too afraid to answer

    25 truthfully the additional questions that were being put

  42. 1 to him.

    2 JUDGE JAN: Was his examination-in-chief over, or was it

    3 before that he issued the threat?

    4 MS. McHENRY: Examination in chief was over, your Honour.

    5 JUDGE JAN: So he had testified what he wanted to say. How

    6 would a subsequent threat --

    7 MS. McHENRY: Your Honour, I certainly believe

    8 cross-examination counts as evidence too, and so the

    9 fact that it was during cross-examination the

    10 Prosecution does not believe is of any legal

    11 significance to whether or not the evidence is

    12 consciousness of guilt or not.

    13 JUDGE KARIBI-WHYTE: I think you will be able to call him if

    14 you want to.

    15 MS. McHENRY: Thank you, your Honours.

    16 MR. GREAVES: I was rather hoping your Honours might invite

    17 some comments from the Defence on the motion before

    18 deciding it.

    19 JUDGE KARIBI-WHYTE: Yes, you could. I am just putting you

    20 on notice.

    21 MR. GREAVES: Your Honour, it is a favourite trick of

    22 prosecuting counsel, and I sometimes act in that

    23 capacity myself, that when you do not have terribly

    24 much, you pick up a piece of mud and throw it. Your

    25 Honours, this is a peripheral irrelevant issue which is

  43. 1 not probative of any fact or issue. This consciousness

    2 of guilt thing is preposterous and I would invite

    3 your Honours to reject this application.

    4 MR. MORAN: Your Honour, just limited to Witness V, I find it

    5 most incredible that an employee of the United Nations

    6 will sit there and tell a court that is an arm of the

    7 Security Council of the United Nations that the only way

    8 he is going to testify is if he is granted some kind of

    9 anonymity. Your Honour, this guy -- protection of

    10 witnesses' identities I think has been overdone, and the

    11 court knows my feelings on that, but to take someone who

    12 is presumably an armed security guard for the

    13 United Nations in The Hague and to say that maybe

    14 because he will go back to Bosnia some day we are going

    15 to let him testify anonymously, and have him say to the

    16 court through the Prosecutor essentially that he will

    17 not appear unless he can testify anonymously --

    18 anonymously to the world, not as to the court or

    19 participants -- to me is absolutely incredible.

    20 I think the Blaskic Appellate Decision was handed

    21 down last week and Judge Karibi-Whyte, you can correct

    22 me on this, if I am overstating or understating what the

    23 Appellate Chamber held, but basically you held this

    24 Tribunal is an arm of the Security Council. To me it is

    25 incredible that if the Security Council summoned

  44. 1 Koffi-Anan to a meeting and said, "We want to hear what

    2 you have to say about this", if Koffi-Anan refused, he

    3 would have substantial problems remaining the Secretary

    4 General of the United Nations. To have an employee of

    5 the Tribunal itself put some kind of conditions like

    6 this on his testimony is just absolutely mind-boggling.

    7 If there is anybody that should be testifying, should

    8 not have any real fear of testifying, it is a security

    9 guard for the United Nations.

    10 We have had citizens of Bosnia-Herzegovina

    11 testifying here for the Prosecution with their names and

    12 their faces spread all over television and all over the

    13 newspapers.

    14 JUDGE KARIBI-WHYTE: I do not think this is really strange.

    15 When the Rules were being established, not only the

    16 Rules but the Articles of the Tribunal themselves were

    17 being established, they were conscious of the

    18 possibility of a witness being afraid of the security.

    19 If you look at the provisions, they are very clear,

    20 Article 20 is very clear about that. They did not even

    21 select whether you are an United Nations official or you

    22 are a private person. Everybody who feels genuinely and

    23 justifiably frightened of his security could be accorded

    24 such privileges.

    25 JUDGE JAN: We have already done that in the Dokmanovic

  45. 1 case, his arrest has been challenged by the Defence and

    2 we gave protection to one of the witnesses.

    3 MR. MORAN: Your Honour, I would just -- again, the Tribunal

    4 is well aware of my feelings about public testimony,

    5 just to me this is -- Judge Karibi-Whyte, you said

    6 "justifiable fears". What we have to be careful about

    7 is we do not let a witness -- I can think of one witness

    8 off the top of my head who said that he had real fears

    9 and was terrified if he testified publicly he would face

    10 some kind of problems and the next thing you know we

    11 were watching him on television. I am not saying that

    12 this person will do that, but we have to look at the

    13 justifiableness of the case.

    14 JUDGE KARIBI-WHYTE: We do not want to exaggerate the nature

    15 of the persons being tried. Nobody wants to play down

    16 or exaggerate their capabilities, so when somebody says

    17 he is afraid, and especially for things said to his

    18 hearing, you do not take it as if it is a joke.

    19 MR. MORAN: Your Honour, I have no problem and I am not

    20 objecting to Witness J testifying however he wants to

    21 testify. My comments are limited solely to Witness V,

    22 and the reasonableness of any perceived fears he may

    23 have.

    24 JUDGE KARIBI-WHYTE: I suppose so. He is also a frightened

    25 man.

  46. 1 MR. MORAN: Your Honour, you may know more about that than

    2 I do.

    3 JUDGE KARIBI-WHYTE: I am only relying on what was put

    4 here. I know nothing outside what is in the motions.

    5 I have no particular personal knowledge of it.

    6 MR. MORAN: Yes, your Honour. Like I said, my feeling is

    7 that the Trial Chamber should make an individualised

    8 determination of the reasonableness of these kinds of

    9 fears.

    10 JUDGE KARIBI-WHYTE: I agree, especially when threats come

    11 from inside, from an accused person directly. I think

    12 one should take it seriously.

    13 MR. MORAN: Your Honour, I do not know if there is any

    14 evidence that this security guard was threatened by

    15 anyone.

    16 JUDGE KARIBI-WHYTE: I suppose they are fears associated by

    17 what had been threatened to someone else.

    18 MR. MORAN: Of course this remains a fact issue for the Trial

    19 Chamber to decide and I am just suggesting that it is a

    20 fact issue that the Trial Chamber should face and should

    21 look at the reasonableness --

    22 JUDGE KARIBI-WHYTE: That is true.

    23 MR. MORAN: -- of the fears as it applies, especially to this

    24 one individual person.

    25 JUDGE KARIBI-WHYTE: Thank you very much.

  47. 1 MR. O'SULLIVAN: Your Honour, very briefly on behalf of

    2 Mr. Delalic, we take the position that this matter is not

    3 connected to the indictment and we oppose any further

    4 delays in these proceedings.

    5 MR. ACKERMAN: Your Honours, the issue with regard to

    6 Witness V is directly relevant to my client Mr. Landzo

    7 and no one else, and so I think it is probably

    8 appropriate that I say something about this motion.

    9 It appears that we are having a very hard time

    10 getting to the end of this case, and one of the reasons

    11 are collateral matters like this that seem to side-track

    12 us now and then. I think this is clearly a collateral

    13 matter, has no business being brought before this Trial

    14 Chamber at this point in time. The basic question that

    15 the Trial Chamber must ask with regard to Witness V and

    16 the testimony he proposes to give is whether or not he

    17 is here to give evidence that is relevant to any part of

    18 the indictment in this case. Relevant evidence is most

    19 often defined as evidence likely to make an issue of

    20 consequence to the determination of the issues before

    21 the Tribunal, of consequence to answering the questions

    22 that are contained in the indictment.

    23 The Office of the Prosecutor suggest to you, both

    24 in writing and orally, that the relevance of this

    25 evidence, in other words what it is about this evidence

  48. 1 that makes it relevant, is that it is evidence of

    2 consciousness of guilt. I find that preposterous. I do

    3 not know of a jurisdiction where this kind of evidence

    4 would be viewed as evidence of consciousness of guilt.

    5 Flight evidence in my country is admitted for that

    6 purpose. That is where a defendant tries to flee from

    7 an impending arrest, a defendant knows that he has been

    8 indicted and tries to flee that indictment. I agree,

    9 that can be evidence of consciousness of guilt.

    10 This is an incredible stretch, to suggest to you

    11 that whether or not -- that this alleged evidence,

    12 whether or not it is true, is evidence of consciousness

    13 of guilt. It can be equally evidence of consciousness

    14 of innocence. It has exactly the same quality on either

    15 side, and that is why it has no chance whatsoever of

    16 making any issue before this Tribunal more or less

    17 probable. It is just a waste of your time, it is just a

    18 way to keep this case from finally coming to a

    19 conclusion by spending a day or two dealing with this

    20 collateral matter. We had previously filed a motion

    21 asking for a hearing on it, because we thought that that

    22 hearing should be held out of fear that you would

    23 consider the memorandum that came to you from the

    24 Registry as evidence. We have now realised that that

    25 was in error, that you clearly would not consider it as

  49. 1 evidence unless someone took the next step to formally

    2 bring it before you, and that would largely have to be

    3 done by your Honours, based upon whether you felt that

    4 was necessary or not.

    5 So I think at this point the effort to further

    6 delay the conclusion of this proceeding by bringing in a

    7 matter collateral, on the dubious suggestion that it is

    8 evidence of consciousness of guilt, is improper and

    9 I think you should reject it and we should get on with

    10 Mr. Niemann's presentation of documents, and then on to

    11 the balance of the witnesses that are scheduled to

    12 appear before you in this case. Thank you very much for

    13 your attention.

    14 JUDGE KARIBI-WHYTE: Thank you very much. I am not too sure

    15 whether I am speaking for more than myself here. What

    16 we have before us now are applications for motion to

    17 call Witness V, and then another one, protection for

    18 Witness V, and then another application to call

    19 Witness J. I agree perhaps after that the Prosecution

    20 might consider giving us why they now want to call these

    21 witnesses. There is nothing like any particular offence

    22 before us, there is nothing like that, and much of what

    23 you have recounted perhaps might be what the Prosecution

    24 has in mind, but we are not too sure whether that is

    25 what will result from all this exercise. So at this

  50. 1 stage, we are only concerned with the application before

    2 us; that is whether these witnesses should be called,

    3 and the protection we should give to them.

    4 MR. ACKERMAN: Your Honour, I think the Prosecution has made

    5 it quite clear why they want to call these two

    6 witnesses. It has to do with statements allegedly made

    7 by Mr. Landzo and Mr. Mucic which have been set out in a

    8 memorandum that came to you from the Registrar. They

    9 have not indicated they have any other purpose in

    10 calling these witnesses, and I have therefore directed

    11 my remarks regarding the irrelevancy of this evidence to

    12 the contents of the memorandum that you received from

    13 Madam de Sampayo, regarding the report of a security

    14 guard as to what Mr. Landzo said on a certain date during

    15 the testimony or during a break. I do not think the

    16 Prosecution intends to call them for any other purpose,

    17 so I think it is rather clear what that purpose is and

    18 I think the Prosecutor would agree with me that is what

    19 that purpose is. That is not a secret. Rather than go

    20 through the exercise of saying, "okay, we are going to

    21 grant the motion" and then later hear an argument as to

    22 why the witness should not be heard and say, "you are

    23 right, we are not going to hear the witness", seems to

    24 take up even more of this Tribunal's time.

    25 I was hoping all of those issues could be dealt

  51. 1 with right now, get it over with, and we would know

    2 whether or not we are going to be facing these witnesses

    3 tomorrow. I do not think we should be, I do not think

    4 it is proper, I do not think it is relevant, I think it

    5 is collateral.

    6 MS. McHENRY: Your Honour, Mr. Ackerman has correctly stated

    7 the reasons the Prosecution is calling these witnesses.

    8 It is to provide evidence as is accurately recounted in

    9 the Registrar's memorandum. The Prosecution does

    10 believe this is relevant evidence for this trial in that

    11 it is evidence of consciousness of guilt and I will not

    12 repeat my arguments here, but that is why the

    13 Prosecution is seeking to call them, and to the extent

    14 that at least one witness is coming from a long

    15 distance, we do not disagree with Mr. Ackerman that it is

    16 acceptable for your Honours to decide it now, whether or

    17 not this is -- if in fact the witnesses come and testify

    18 consistent with the memorandum, whether or not that is

    19 relevant evidence. We do not object to that, and

    20 Mr. Ackerman has correctly stated why the Prosecution is

    21 calling them, and I will not repeat the Prosecution's

    22 argument as to why this is relevant evidence for the

    23 trial, but the Prosecution does believe it is relevant

    24 evidence for this trial, and as everyone agrees, it may

    25 also be supplementary evidence of contempt. But the

  52. 1 issue now is with respect to the trial, so we would be

    2 seeking to call them as evidence in its case in chief

    3 for the charges against these accused.

    4 JUDGE KARIBI-WHYTE: We will rise for a few minutes.

    5 (4.55 pm)

    6 (A short break)

    7 (5.10 pm)

    8 JUDGE KARIBI-WHYTE: The Trial Chamber has, as quickly as we

    9 could, gone into the issue. We find that there is no

    10 juridical basis for calling these witnesses. If the

    11 other arguments which we think might even be more

    12 contentious for calling these witnesses have been

    13 considered, the proper procedure for doing so can be

    14 undertaken. We are not too satisfied that merely

    15 calling witnesses at this stage to give evidence of

    16 consciousness of guilt for what was said is not the

    17 ideal way to proceed against matters of this nature. So

    18 we do not think we can grant the applications which are

    19 before us.

    20 Have you anything to say about the applications?

    21 MS. McHENRY: No, your Honour. We thank you for making

    22 such a quick ruling on this so we did not have to bring

    23 the witnesses as evidence in our case in chief. We will

    24 anticipate bringing these witnesses at another time as

    25 evidence of contempt, but there is no reason to do it at

  53. 1 the present time, so we will just defer that and talk to

    2 the witnesses about their schedules and everything else

    3 and then bring it separately. Thank you, your Honour.

    4 JUDGE KARIBI-WHYTE: Yes, we thought about that, and we felt

    5 perhaps there are procedures for bringing the real

    6 offence which was committed.

    7 MR. NIEMANN: I just should indicate, your Honours, that we

    8 may not either. We may decide not to take the matter

    9 any further.

    10 JUDGE KARIBI-WHYTE: Perhaps it might even be better if you

    11 did not. We refuse your applications. Now we will hear

    12 you on your applications.

    13 MR. NIEMANN: As your Honours please. Your Honours, the last

    14 document we were looking at was Exhibit 125, and perhaps

    15 if that can be displayed on the screen. Your Honours,

    16 when this particular document was shown to Mr. Moerbauer

    17 in his evidence at page 3653, lines 11 and 12, Officer

    18 Moerbauer said:

    19 "This document was in the binder I5. It was

    20 handed to me by my colleague, Navrat, at the police

    21 headquarters, Vienna."

    22 It was also a document that was shown to the

    23 witness Pasalic in the course of his evidence.

    24 Your Honours, the Prosecution's application to tender

    25 this document is merely on the limited basis that it is

  54. 1 part of the series of documents which deal with this

    2 particular issue, and it is not sought to be tendered as

    3 truth of the contents of any aspect of it that relates

    4 to whether or not the accused, Delalic and Mucic, were

    5 in any way guilty of the offences that are alleged

    6 therein. Indeed, in our submission, your Honour, the

    7 reference to the offences as such is not a matter which

    8 is relied on by the Prosecution, so it is tendered --

    9 sought to be tendered on a very limited basis.

    10 It does have a relationship, as I say,

    11 your Honours, to the whole range of other documents.

    12 I will not take your Honour to every one of them, but

    13 I am able to list them, where it is our submission that

    14 there is a relationship to them in the mosaic of

    15 documents that are tendered. Firstly Exhibit 117 which

    16 your Honours have already looked at, but further in

    17 Exhibit 145, which is a document which was again found

    18 on the premises, and simply is a reference to -- makes

    19 reference to the article of desertion under the Criminal

    20 Code, Article 217, relating to desertion. Your Honours

    21 can see that, there is the article as set out there in

    22 part.

    23 If your Honours look at the exhibit I am referring

    24 to, Exhibit 125, there is a reference there in that

    25 article, so the Prosecution seek to tender -- second

  55. 1 line, top of the page, there is reference to Article

    2 217. The Prosecution seek to tender it as it is part of

    3 a series of documents, others which are far more

    4 relevant than this document, and as I say, it has

    5 indicia of reliability because of the fact that it fits

    6 into this pattern. But we go further and say it is a

    7 more formal looking document than others I have referred

    8 to, because it has a reference there to -- it has a

    9 stamp there, which we have seen from other evidence

    10 tends to be characteristic of a lot of the documents

    11 which we have examined. I move that that document be

    12 accepted into evidence. As your Honours please.

    13 MS. RESIDOVIC: Your Honours, the Defence of Mr. Delalic

    14 objects to this document being admitted into evidence

    15 for the reasons already given, but since my learned

    16 colleague Mr. Niemann has given me the opportunity to go

    17 back to some of those arguments, allow me to present

    18 them.

    19 First of all, I should like to remind you,

    20 your Honours, that discussing the exhibits allegedly

    21 seized in INDA-BAU on 9th June already, my learned

    22 friend Mr. Turone, in response to a comment on your part,

    23 said that for the Prosecutor to prove that a certain

    24 document comes from a certain premise, that he would

    25 call Mr. Navrat and Mr. Unger. In line with that,

  56. 1 your Honours, Judge Karibi-Whyte clearly stated that if

    2 the Prosecutor fails to prove each of these elements

    3 then not a single of those exhibits would be admitted

    4 into evidence. You stated this on 9th June, on

    5 page 3647 of the transcript.

    6 Later, in your ruling of 25th September, in

    7 response to our submission that the value of some

    8 documents was being prejudged, you clearly said that the

    9 Prosecutor has to prove each of the elements of the

    10 case, which means that this Trial Chamber never ruled on

    11 the authenticity of these documents. Therefore there

    12 are no exhibits that have been proven to have come from

    13 the INDA-BAU premises. The Prosecutor has not still

    14 proven that any of the offered documents came from the

    15 INDA-BAU premises. Witness Navrat, called by the

    16 Prosecution, could not recognise a single one of those

    17 documents, nor did he mark any of those documents.

    18 Therefore, it would be essential for the

    19 Prosecutor, when tendering a document into evidence in

    20 this court, he should prove where the document comes

    21 from, who was its author, and only then to discuss its

    22 possible relevance and probative value. However, with

    23 respect to document 125, we encounter another problem,

    24 whereby the Prosecutor is trying to show you all these

    25 documents were in one place, that they are authentic and

  57. 1 that they are linked to one another, as he has tried to

    2 say with respect to document 124, claiming that there

    3 was a thread that testifies to its reliability.

    4 This document, on the dropping of charges against

    5 Zejnil Delalic and Zdravko Mucic, is a public document

    6 and it can be admitted anywhere. As Judge Jan has

    7 already noted, many phrases from the other documents

    8 tell the story on criminal proceedings against my client

    9 and Mr. Mucic. Therefore, to link to a public document

    10 several pieces of paper, unauthenticated papers out of

    11 the 2,700 bits of paper found in several places,

    12 allegedly, in Vienna and Munich, is not a way to prove

    13 the reliability of these documents, nor to prove that

    14 these documents come from the premises where they are

    15 said to have come from. Therefore the authenticity of

    16 these documents remains contested, and I think to rely

    17 on the thread indicated by the Prosecutor will not lead

    18 this court to ignore Rule 89 and Rule 95, according to

    19 which a fair trial would be in jeopardy if these

    20 documents, documents of this kind, were to be admitted.

    21 The next point I wish to make is something that my

    22 colleagues have already referred to, and that is that an

    23 unauthenticated and unreliable document is being proven

    24 with the help of other unauthenticated and unreliable

    25 documents, and not with documents as a whole, but with

  58. 1 sentences taken out of context. In the story as

    2 presented before this court, they are intended to show

    3 consistency and to lead us to the conclusion that all

    4 these documents are reliable and relevant.

    5 Let me, your Honours, draw attention to a

    6 technical point. Each time an exhibit is shown to you

    7 it is put on the monitor and you see the English

    8 translation of that document. I should like to ask my

    9 colleagues to put the next documents in the original,

    10 and then you will see that these are not documents,

    11 these are notes scribbled by various persons whose

    12 handwriting was never proven, and which can come from

    13 various sources.

    14 I would like to refer to the testimony of a

    15 witness here when we were talking about the

    16 possibilities as to which document was in which folder.

    17 The arguments I have already presented that were

    18 confirmed by the Prosecutor, and that is the appointment

    19 of the 11th, which was allegedly from Vienna, and that

    20 it was shown to my client. This is quite incorrect,

    21 because what my client was shown was another document

    22 with a fax number and this can easily be verified. It

    23 is number 1290 and if we review this method of

    24 presentation of all documents, including a public

    25 document which can be found with the Defence counsel or

  59. 1 various people who may have tried to participate in the

    2 propaganda or counter-propaganda against my client, and

    3 if it is not found to have come from a premises

    4 belonging to my client, then the reliability of that

    5 document, as well as the reliability of the assertion

    6 that it comes from that premises, can also be contested.

    7 The risk of linking these documents with other

    8 unreliable documents is obvious. If we just go back to

    9 the previous document, when the name Saric was discussed

    10 and later the name Edib Saric, instead of the Prosecutor

    11 relying on the evidence presented in this Trial Chamber

    12 and which clearly showed the unreliability of document

    13 124, we are being offered elements of unidentified,

    14 unauthenticated and highly problematic other documents.

    15 Namely, we are coming to the end of the case in

    16 chief, we have heard a great deal of testimony. When

    17 General Pasalic saw document 124, he immediately noted

    18 and said clearly that on 8th December, Tactical Group no

    19 longer existed. This same witness confirmed the report

    20 he sent to the supreme command and which indicated the

    21 position of Edib Saric, of whom we do not know whether

    22 he exists and what he is doing. When shown other

    23 documents, the witness confirmed as valid those

    24 documents. That same witness, General Pasalic,

    25 established that Edib Saric was appointed deputy

  60. 1 commander of Tactical Group 2, and this has nothing to

    2 do with Mr. Delalic or with Tactical Group 1.

    3 Also, another document has been admitted into

    4 evidence which clearly shows that Edib Saric, if all the

    5 Prosecutor wanted to refer to him in support of this

    6 thin thread of consistency, we see from that document

    7 that Edib Saric is a liaison officer in a temporary

    8 command of the group JUG. Therefore the evidence that

    9 we heard, with the help of a witness whose testimony we

    10 heard, is real proper evidence on the basis of which we

    11 can verify the validity of these documents. Bits of

    12 paper with problematic translations which we were unable

    13 to compare because some of the writing is quite

    14 illegible is not a way to prove the reliability or

    15 relevance of any document.

    16 I have said all this referring to a document which

    17 may be official and is not disputed, but what is

    18 disputed is that the Prosecutor in this case, as in all

    19 others, could not prove where it came from, the source

    20 of that document, because Navrat could not recognise

    21 this document. For these reasons and the reasons we

    22 presented earlier, I propose that this document, as well

    23 as the previous one, not be admitted into evidence.

    24 MR. NIEMANN: Your Honour, might I just quickly respond? One

    25 at a time I think might be easier. Your Honours, the

  61. 1 issue of whether or not there was a search of the

    2 premises and whether the documents were legally seized

    3 has been dealt with and disposed of by your Honours.

    4 I note what Madam Residovic has said about this being a

    5 public document and could be admitted anywhere and

    6 I rely on it.

    7 MR. GREAVES: Your Honour, in my submission there are three

    8 problems the Prosecution have. I note what my learned

    9 friend has said about my learned friend Ms. Residovic's


    11 Firstly, this document lacks any form of relevance

    12 or probative value. It is not probative of any fact or

    13 issue in my submission. Secondly, as far as the quality

    14 of the document is concerned, it is asserted that it is

    15 a public document. Your Honour, a number of remarks are

    16 made by my learned friend, and I will return to those in

    17 a moment, about the quality of the document. Of course,

    18 as my learned friend Mr. Ackerman said earlier on this

    19 afternoon, on Friday we had the keeper of documents,

    20 custodian of documents, come and prove public

    21 documents. The Prosecution, and this is their third

    22 problem in my submission, does it on this occasion in a

    23 quite different way.

    24 When we assert the Prosecution has to prove a

    25 document, we did not have in mind that counsel for the

  62. 1 Prosecution would be giving evidence as to the

    2 provenance of the document. What my learned friend has

    3 said is this: it is typewritten, it bears a seal at the

    4 bottom of the document, it appears -- note that word,

    5 "appears" to be signed -- it has all the appearance of

    6 a formal document of the type that your Honours has

    7 seen.

    8 Then a moment or two ago, he said:

    9 "It is a more formal looking document than others

    10 I have referred to because it has a stamp there which we

    11 have seen from other evidence tends to be characteristic

    12 of a lot of the documents we have examined."

    13 Your Honour, in my submission it is not right that

    14 counsel for the Prosecution should give evidence and

    15 say, "this is an authentic document"; that is for others

    16 to give evidence about and prove. That is why they had

    17 the keeper of records here last Friday.

    18 So in my respectful submission, there is no

    19 evidence that this document is a genuine one, not least

    20 because he asserts it has a stamp on it: there are very

    21 many people out there in the world who are very skilled

    22 at producing such stamps, and in my country during the

    23 Second World War, there was a whole army of them in

    24 prisoner of war camps doing precisely that; fooling our

    25 German friends up hill and down dale. That is why you

  63. 1 have to prove the document, you have to prove that it

    2 has a genuine stamp. That is why you call the keeper of

    3 records to say, "I recognise this as a genuine stamp".

    4 It is not for counsel for the Prosecution to give

    5 evidence and do it instead.

    6 JUDGE KARIBI-WHYTE: Have you any response to this?

    7 MR. NIEMANN: Yes, your Honour. Very quickly, it seems to

    8 be -- two things seem to be asserted. One is that I am

    9 giving evidence, which is not true. What I am doing is

    10 taking your Honours to the documents. The documents

    11 speak for themselves. It is entirely appropriate for

    12 counsel to refer to what a document says and show

    13 your Honours by reference to the document what is being

    14 said or what it shows. This is well known by counsel.

    15 Secondly, your Honours, it seems to be argued that

    16 there is only one way that a document can be admitted

    17 into evidence and one way only, and that if the

    18 Prosecution does not proceed pursuant to that one way

    19 then that is the end of the matter, the thing is not

    20 admitted. This document is not in the possession of the

    21 keeper of records; this document was found at the

    22 premises in INDA-BAU. Your Honours, it is the fact that

    23 it was found at the premises of INDA-BAU, which is a

    24 piece of evidence which the Prosecution considers to be

    25 a very important part of the evidence. You do not

  64. 1 bring -- if the original of the document was there,

    2 your Honours would say, quite rightly, "what is the

    3 relevance of this document?" It is because of where it

    4 was found; it is because of where it was located,

    5 because of its relationship to other documents, that

    6 makes it relevant and admissible and important, in our

    7 submission.

    8 So it is not correct to simply say, "the only way

    9 it can be done is to call the keeper of records". On

    10 its own, in isolation, calling the keeper of records,

    11 your Honours would have a very legitimate question; "why

    12 are you trying to put this into evidence?" In my

    13 submission, your Honour --

    14 JUDGE KARIBI-WHYTE: Let me find out exactly the proposal of

    15 entering these documents as exhibits. Is it for the

    16 authenticity of the documents or the content of what the

    17 documents themselves represent?

    18 MR. NIEMANN: Your Honours, the highly significant aspect of

    19 them is what they say and where they were. It is just

    20 the same as what often happens in so many cases that

    21 your Honours will be familiar with, where the police go

    22 in and execute a search warrant at the premises of a

    23 person who is subsequently charged with an offence.

    24 There is a whole range of things. One might be, in a

    25 drug case, tendering a set of scales. A set of scales

  65. 1 might be an innocent kitchen appliance used for baking

    2 cakes or something, or it could be a basis upon which

    3 people weigh out heroin or some other form of drugs.

    4 Just simply saying that you need the manufacturer of the

    5 scales to come along to tender them is a nonsense. It

    6 is where they are found that is the significant aspect

    7 of it and their contents, in our submission.

    8 JUDGE KARIBI-WHYTE: I think we have had enough for today.

    9 We should continue tomorrow morning at 10.00, if you

    10 still have more documents.

    11 MR. NIEMANN: I have more documents, your Honour.

    12 JUDGE JAN: How many more?

    13 MR. NIEMANN: About 20, your Honour.

    14 JUDGE KARIBI-WHYTE: Are you sure you have not covered the

    15 ground yet for which these documents might be ...

    16 MR. NIEMANN: Your Honours, I can assure you I would be

    17 delighted to simply tender them in one exercise and it

    18 be over with, but I fear that is not going to be

    19 possible. I have to deal with them individually,

    20 regrettably.

    21 JUDGE KARIBI-WHYTE: Thank you very much.

    22 (5.35 pm)

    23 (Court adjourned until 10.00 am the following day)