Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2706

 1                           Monday, 19 January 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 8.59 a.m.

 5             JUDGE MOLOTO:  Good morning to everybody in and around the

 6     courtroom.  Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning

 8     everyone in and around the courtroom.  This is case number IT-04-81-T,

 9     the Prosecutor versus Momcilo Perisic.

10             JUDGE MOLOTO:  Thank you very much.  Could we have appearances

11     for today, starting with the Prosecution.

12             MR. THOMAS:  Good morning, Your Honours.  Good morning to

13     everybody in and around the courtroom.  Barney Thomas, Salvatore Cannata,

14     and Carmela Javier for the Prosecution.

15             JUDGE MOLOTO:  Thank you very much.  For the Defence.

16             MR. GUY-SMITH:  Good morning, Your Honours.  I would like to

17     welcome as a new intern Havneet Sethi who has just arrived and is going

18     to be working with us now.  From last week we have Eric Tully, who's our

19     new intern.  Our other intern is no longer with us.  We also have Tina

20     Drolec; Milos Androvic; Chad Mair; our case manager is Daniela Tasic; and

21     I'm Gregor Guy-Smith.

22             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.  And yes, Mr.

23     Thomas.

24             MR. THOMAS:  Your Honour, Mr. Cannata will be leading the witness

25     this morning.

Page 2707

 1             JUDGE MOLOTO:  Mr. Cannata.

 2             MR. CANNATA:  Good morning, Your Honours.  Before we start, may I

 3     get the confirmation that the next witness MP-228 is a protected witness

 4     with facial distortion and pseudonym.

 5             JUDGE MOLOTO:  Indeed.  We would like to place that on the

 6     record.  Do you want to us to do that now, or do you want us to go into

 7     private session for the purpose of doing that?  I'm not quite sure what

 8     the procedure is.

 9             MR. CANNATA:  I would like to do that in private session.

10             JUDGE MOLOTO:  May the Chamber please move into private session.

11     Can we wait for the ... sure, absolutely.

12             THE REGISTRAR:  Your Honours, we are in private session.

13                           [Private session]

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Page 2708











11 Pages 2708-2721 redacted. Private session.















Page 2722

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16   (redacted)

17                           [Open session]

18             THE REGISTRAR:  Your Honours, we are back in open session.

19             JUDGE MOLOTO:  Thank you very much.

20             You see, if you look at the guide-lines, sir, at paragraph 21,

21     page 9, we say:

22             "A party calling a witness under Rule 92 ter may be permitted by

23     the Trial Chamber to read out a short summary of the witness's Rule

24     92 ter statement and/or conduct a limited direct examination of the

25     witness where such examination is forecast on clarifying or highlighting

Page 2723

 1     particular aspects of statement.  In addition, the calling party will be

 2     permitted to show documents to the Rule 92 ter witness, and such

 3     documents may be tendered into evidence.

 4             You see, just to clarify, not to re-lead evidence that is already

 5     contained in the statement of the witness or in the testimony of the

 6     witness that is being tendered as evidence, and I thought you said this

 7     witness is a fact witness, and if he is a fact witness, he has testified

 8     in the Dragomir Milosevic case on what he saw and what he photographed,

 9     didn't he?  Thank you.

10             MR. CANNATA:  Can we now move to another set of questions, with

11     your leave, Your Honour.

12        Q.   Witness, did you investigate the incidents occurred on 24th

13     of May, 1995, at Safeta Zajke Street?

14        A.   Yes.  Yes, I did investigate that particular incident.

15        Q.   Thank you.  Did you prepare a sketch for that incident as part of

16     your duties?

17        A.   Yes, I did.

18        Q.   Thank you.

19             MR. CANNATA:  Can I please have 65 ter 5743, which has been

20     admitted as P454 under seal, please.

21             MR. GUY-SMITH:  Once again, I rise and ask the same question that

22     was asked before.  This is an exhibit that was used during this

23     gentleman's testimony in Dragomir Milosevic, and the Prosecution has

24     obtained the results of that testimony.  That testimony has been

25     introduced pursuant to 92 ter, and this particular exhibit as well as the

Page 2724

 1     other exhibits have all been admitted in this case as Prosecution

 2     exhibits with regard to the very specific incidents that Mr. Cannata is

 3     now questioning the witness about.  I'm assuming, again.

 4             MR. CANNATA:  Well, I'm grateful for the assumption.  I would

 5     first of all like to ask the question, then receive an objection.

 6             JUDGE MOLOTO:  Ask the question, sir.

 7             MR. CANNATA:  The question will be whether the witness is in a

 8     position to explain and take the Court through the sketch to explain what

 9     has been drawn there.  If we -- if I can get the B/C/S original one on

10     full screen.  Can we move to the next page.  Actually, to the third page,

11     the next one, please.

12        Q.   Witness, is that the sketch that you prepared for the incident in

13     Safeta Zajke Street?

14             MR. GUY-SMITH:  Well, excuse me.  That is exactly the question

15     that was asked, page 4626 in the testimony, that has now been admitted by

16     this Court.

17             "Question:  Witness --"

18             Never mind.  I'll let it go.

19             MR. CANNATA:  But before the witness is asked to give an

20     explanation, I'd like the witness to confirm that that's his exhibit.

21             MR. GUY-SMITH:  I really am terribly sorry, but there are rules

22     of procedure and there are ways of asking questions and not asking

23     questions.  He has an answer to this question.  He had an answer to the

24     question by virtue of the admission of the previous testimony to which

25     this witness testified that he would give the same answers.  He really

Page 2725

 1     does need to think about how he's going to structure the examination;

 2     otherwise, all we're doing is going through a rehash of that which was

 3     done before, which if he chooses to use his time that way, that's fine,

 4     but it's a terrible waste of time.

 5             JUDGE MOLOTO:  Mr. Cannata.

 6             MR. CANNATA:  I won't go into a full re-litigation on this issue.

 7     What I wanted to note for the benefit of the record is that this page and

 8     the next page of this document are originally part of the same sketch

 9     made by the witness.  Now, with your leave, Your Honour.

10             JUDGE MOLOTO:  Originally part of the same sketch?

11             MR. CANNATA:  Yes, the sketch originally prepared by the witness.

12     It's a single page which consists of the page that you have in front of

13     you on the e-court and the next page.  They have been divided up in two

14     halves for the uploading into e-court.

15             JUDGE MOLOTO:  I'll allow that question, Mr. Cannata, and I think

16     we've got to stop after this.  If you want to -- if you want him to say

17     those are two parts of the same document, you can go ahead and establish

18     that.  Yes, Mr. Guy-Smith.

19             MR. GUY-SMITH:  Yes.  For purposes of the record, at page 4627:

20             "A:  These two pages of the sketch should be put together.  These

21     are actually two halves of one in the same sketch."

22             MR. CANNATA:  If I may continue, I was getting to my point.

23             JUDGE MOLOTO:  Mr. Cannata, the thing is, the Bench must also

24     know where you are going, and the Bench must be satisfied that you are

25     not repeating what is already on the record, and now Mr. Guy-Smith keeps

Page 2726

 1     on saying, Well, this question you are asking, it's on page so-and-so of

 2     the transcript.  This transcript has been tendered as an exhibit.  What

 3     is the purpose of tendering this transcript if we are going to rehash the

 4     evidence that is in the transcript?  Otherwise, maybe we must do away

 5     with this 92 ter procedure and just call your witnesses viva voce because

 6     it seems to be a complete waste of time and duplication of the

 7     information.

 8             MR. CANNATA:  Your Honours, may I ask some follow-up questions to

 9     the witness.

10             JUDGE MOLOTO:  Mr. Cannata, I'm afraid -- I'm going to allow you

11     to ask follow-up questions, yes, if they are not questions that are

12     already on the record.  If they are, I'm sorry.  I'm going to have to ask

13     you to sit down.  You may ask your question.  Let's hear what it is.

14             MR. CANNATA:

15        Q.   Mr. Witness, do you see at the right corner on the bottom of the

16     page, which is the one on your screen, and arrow with an "S" within?

17        A.   Yes, I do.

18        Q.   Can you tell the Court what that marking stands for, please?

19        A.   That arrow marks the direction of the north because in my

20     language the letter S stands for "sjever," that is, "north."

21        Q.   In your sketch, does any markings that reflect any determination

22     as to the direction of fire of the mortar fire of that bomb?

23        A.   Yes.  There is the dotted line marked with number 10.

24        Q.   And what direction does that dotted line number 10 describe?

25        A.   That direction is south-east.

Page 2727

 1             MR. CANNATA:  Thank you, Mr. Witness.  I have no further

 2     questions, Your Honour.  Thank you.

 3             JUDGE MOLOTO:  Thank you very much, Mr. Cannata.

 4             Yes, Mr. Guy-Smith.

 5             MR. GUY-SMITH:  Thank you, Your Honour.

 6                           Cross-examination by Mr. Guy-Smith:

 7        Q.   I have but a few questions, sir.

 8             Is the area behind Safet Zajke Street the bottom of Mount Zuc?

 9        A.   Yes.

10        Q.   And right behind the area that you were investigating on the 24th

11     of May, in that location were there military units of the ABiH?

12        A.   No.  On that location where this shell impacted, there are only

13     family houses.  This is a residential area.

14        Q.   I appreciate that.  Behind the area where the shell hit, were

15     there ABiH units positioned there, approximately 1 to 200 metres behind?

16        A.   No.  They were positioned possibly 2 kilometres behind this area

17     in the mountain.

18        Q.   I see.  Did you engage in any investigation with regard to

19     potential fire that could have come from those military positions?

20        A.   No, I have not participated in any such investigation.

21             MR. GUY-SMITH:  Thank you very much.  I have no further

22     questions.

23             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.  Any re-examination?

24             MR. CANNATA:  No, Your Honours.

25             JUDGE MOLOTO:  Thank you.  Thank you, sir.  That brings us to the

Page 2728

 1     end of your testimony.  May I take the opportunity to thank you for

 2     taking the time to come and testify at the Tribunal.  You are now

 3     excused.  You may stand down.  Thank you very much, and may you please

 4     travel well back home.

 5             And before we let you off, I guess we need to move into private

 6     session for purposes of your exiting.

 7             MR. CANNATA:  Thank you, Your Honour.

 8                           [Private session]

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24                           [Open session]

25             THE REGISTRAR:  Your Honours, we are back in open session.

Page 2729

 1             THE COURT:  Thank you very much.  Mr. Thomas, I understand what

 2     you are telling us about today.  Is it not so that we do have a witness

 3     scheduled for tomorrow?

 4             MR. THOMAS:  If I could just check with our case manager, Your

 5     Honour.

 6             JUDGE MOLOTO:  Thank you.

 7                           [Prosecution Counsel confers]

 8             MR. THOMAS:  The situation, sir, is that the next scheduled

 9     witness is for Thursday, but there is a possibility that we might be able

10     to do something in terms of bringing that witness forward.  That is

11     something that needs to be investigated today, sir.

12             JUDGE MOLOTO:  Okay.  Thank you very much.  Before we break up --

13     yes, Mr. Thomas.

14             MR. THOMAS:  I've just received confirmation that we can bring

15     that witness for tomorrow, so we can adjourn until tomorrow morning.

16             JUDGE MOLOTO:  Thank you very much.  Before we break up, can I

17     make this appeal to the parties to please think very seriously about the

18     use of this 92 ter procedure in such a way that if it is used, it does

19     not become repetitive; and if it cannot be used without being repetitive,

20     will you consider seriously leading evidence viva voce.  I'll leave it at

21     that.  I hope the parties will come back to the Chamber with some kind of

22     agreed position between the two of you, and if you are not able to agree,

23     then you'll also report that, and we'll take it from there.

24             Court adjourned until tomorrow in the afternoon, quarter past

25     2.00, courtroom II.  Court adjourned.

Page 2730

 1                           --- Whereupon the hearing adjourned at 9.54 a.m.

 2                           to be reconvened on Wednesday, the 21st day of

 3                           January, 2009, at 9.00 a.m.