1 Wednesday, 18 July 2007
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.22 p.m.
6 JUDGE AGIUS: Good afternoon, everybody. Madam Registrar, could
7 you kindly call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
10 JUDGE AGIUS: Thank you, ma'am. For the record, all the accused
11 are here. From the Prosecutions team I notice the absence of Mr. Haynes,
12 Ms. Nikolic, and Mr. Ostojic.
13 From the Defence teams.
14 From the Prosecution side, I notice the presence of -- recognise
15 the presence of Mr. McCloskey and Mr. Nicholls and Ms. --
16 MR. NICHOLLS: Your Honours, again we are joined by Ms. Magilligan
17 and Ms. Janisiewicz today. Thank you.
18 JUDGE AGIUS: The witness is already present in the courtroom. I
19 take it there are no preliminaries. We hear none. Mr. Lazarevic, you
20 were still in possession yesterday. Go ahead.
21 MR. LAZAREVIC: Thank you and good afternoon, Your Honours.
22 JUDGE AGIUS: Good afternoon to you.
23 WITNESS: ALISTAIR GRAHAM [Resumed]
24 Cross-examination by Mr. Lazarevic: [Continued]
25 Q. Good afternoon, Mr. Graham. Mr. Graham, before I continue where I
1 left it off yesterday, I would like to go back very briefly to a few
2 things that still have not been clarified.
3 First of all, let me tell you that earlier today, we had a contact
4 with the Prosecutor's Office and for the record, I would like to say that
5 on page 43 of the transcript of Mr. Borovcanin's interview dated 22nd
6 February 2002, one thing has to be corrected, and I admit that this
7 must -- this could be our mistake. We did not notice it earlier. The
8 correction bears upon the legal representative of Mr. Borovcanin.
9 Again, we have listened to the tape, and we have informed our
10 learned friends from the Prosecution. They have agreed with what we have
11 learned, and just for the record, I would like to confirm that on that
12 day, on the 22nd February 2002, the representative for Mr. Borovcanin was
13 Zoran Bubic rather than Goran as it is stated in the transcript. If
14 necessary, I would like my learned friend Mr. Nicholls to confirm this for
15 the record again.
16 MR. NICHOLLS: Yes, Your Honours.
17 JUDGE KWON: The date of the interview is 20th instead of 22nd as
18 is written in the transcript.
19 JUDGE AGIUS: Yes, thank you, Judge Kwon, for that correction.
20 Yes, thank you, Mr. Nicholls. Mr. Lazarevic, you may proceed.
21 MR. LAZAREVIC: [Interpretation] Thank you very much.
22 Q. Mr. Graham, do you have a hard copy of the transcript that you
23 used yesterday? Do you have that on you?
24 A. Not -- I left it with the Court.
25 Q. The usher is kindly giving it to you now.
1 Could you please confirm for the record that you have those papers
3 A. I believe I have the -- is it the 16 page summary with various
4 pages and the other pile that I have starts with the 11th of March
5 interview. So I believe I do not have the 20th of February pages. I have
6 those now.
7 Q. Very well. The last thing, the 20th of January -- I apologise,
8 the 20th of February interview is really very important. Could you please
9 now look at page 5, lines from 10 through 16?
10 A. Yes, I've read those.
11 Q. Thank you. My question is this. It is very simple as a matter of
12 fact. In the lines that I have just asked you to look, it says that
13 Mr. Borovcanin graduated from the school of political sciences. Is that
14 the case?
15 A. Graduated in 1982 at the Sarajevo university, I studied political
16 science. Is that the line you mean?
17 Q. Thank you. That is the line, precisely. Further on, it says that
18 he obtained his master's degree from the school of civil defence. Is that
19 what is stated in the transcript?
20 A. The version I have said -- says, "I would just like to say that in
21 1998 I got a master's degree at the Belgrade university. I asked the
22 question in political science, Mr. Borovcanin's reply, no, this was the
23 so-called civil defence faculty, and I'm working on my Ph.D. at the
25 Q. Precisely. This was important in light of the questions that I
1 put to you yesterday with regard to Mr. Borovcanin's education.
2 [In English] When I met my client in the detention unit I received this
3 document from him, and I provided the OTP with a copy of this document.
4 We didn't have enough time to translate it. I have just received it.
5 So if this copy can be placed on the ELMO and with the
6 assistance of the interpreters, I think I will be able to make my point on
7 this document.
8 JUDGE AGIUS: Go ahead. Madam Usher.
9 MR. LAZAREVIC: [Interpretation]
10 Q. I would kindly ask for the record -- for the following to be
11 translated, "Decision on the Appointment as a Faculty Member," which is
12 the title of the document. And paragraph 1 of this document which reads,
13 and I'm going to read it aloud for the record: "Mr. Ljubomir Borovcanin,
14 master of sciences from Banja Luka is hereby appointed is an associate
15 lecturer for the course, the tactics of police intervention at the higher
16 school of the Interior in Banja Luka."
17 Sir, I have just shown you certain parts of transcripts and this
18 document. I don't expect you obviously to confirm the veracity and the
19 accuracy of these documents, obviously, but will you agree with me that
20 whatever I've shown you now, that none of these jobs that Mr. Borovcanin
21 performed or the qualifications that he holds, do not correspond to a
22 university degree in law?
23 A. Your Honour, I can I sum that's the case but I don't know. I
24 certainly assume it.
25 Q. Very well. I am satisfied with your answer. I will not insist on
1 any further explanation. And now I would like to continue where we left
2 it off yesterday. Just to jog your memory, I would like to remind you
3 that at the end of yesterday's sessions I asked you whether Mr. Zoran
4 Bubic asked whether his client, meaning Mr. Borovcanin, had agreed to an
5 interview in his absence, and you replied that Mr. Bubic did not ask that
6 of you. Do you remember that? That was your last answer yesterday.
7 A. No. I certainly do not remember Mr. Bubic asking me if his
8 client -- well, actually could you repeat the question, please, just to
9 make sure I understand it?
10 Q. Well, I just did it to take you back to the place where we left it
11 off yesterday. Yesterday we had both the question and your answer, I just
12 wanted to jog your memory in order to continue with today's conversation.
13 I'm going to read yesterday's transcript. The question was: [In English]
14 "All right. But can we agree that the transcript which is before us and
15 which is a record of the interview, it does not say that -- it doesn't
16 show that Mr. Bubic asked you at any point whether his client consented to
17 have the interview in absence of his lawyer. It's not reflected anywhere
18 in the transcript, correct?" And your answer was, "No it's not in the
20 A. That is my answer and it's the same, yes.
21 Q. Precisely sir. Actually, I just wanted to remind you where we
22 left it off. I'm not questioning your answer at all.
23 Do you have any knowledge whatsoever as to whether Mr. Zoran Bubic
24 or Mr. Goran Bubic, although you do not remember the two lawyers, do you
25 have any knowledge that any of the two of them spoke English at the moment
1 when you interviewed Mr. Borovcanin? Were any of the two of them fluent
2 in English at the time?
3 A. First of all, I thought about it carefully last night about this
4 issue, and I'm comfortable that there were definitely were two lawyers,
5 one on one day, and I think a second person turned up for a separate day.
6 There were never two on the same day is my recollection. And I certainly
7 have no recollection of either of them being fluent in English.
8 Q. Thank you very much. This will save us some more additional
9 questions, and I am very happy that were you able to remember such
10 details. We are still talking about the interview that was conducted on
11 the 20th of February. Mr. Bubic, the legal representative for
12 Mr. Borovcanin, at the moment when he arrived and when the interview
13 continued, did he ask you to listen to the recording of the interview that
14 was conducted up to then? Did he want to hear what Mr. Borovcanin had
15 said before he turned up? This is not reflected in the transcript.
16 That's why I would kindly ask you to confirm that for me.
17 A. No, he did not.
18 Q. When Mr. Bubic on the 20th of February arrived to attend
19 Mr. Borovcanin's interview, did you perhaps provide a copy of the Statute
20 of the International Tribunal and the Rules of Procedure and Evidence to
22 A. I do not recall doing so. I recall going to a different
24 Q. Thank you. Did Mr. Borovcanin's legal representative, Mr. Bubic,
25 again this is not reflected in the transcript of the interview or on the
1 tape, that's why I'm asking you, did he ask whether at the beginning of
2 the interview while he was still absent, Mr. Borovcanin had been informed
3 of his rights? Did Mr. Bubic ever ask that? This is not in -- reflected
4 in the transcript. That's why I'm asking you whether he ever asked you
6 A. Certainly have no recollection of him ever asking me that.
7 Q. Thank you. In the examination-in-chief, you discussed the
8 cautions that were given to Mr. Borovcanin during the interview. In the
9 presence of his lawyer, you used the term "possible suspicion" or
10 "possible suspect"? Do you remember that? This happened after Mr. Bubic
11 already joined you.
12 My question is this: Did Mr. Bubic, Mr. Borovcanin's lawyer at
13 the time, at the moment when this was said, did he intervene? Did he ask
14 what this meant? What is the meaning of the term "possible suspect"?
15 What of the status of his client was? Again, this is not reflected either
16 in the transcript or in the taped interview.
17 A. Your Honours, I didn't have that page of the interview in front of
18 me, but whatever was said would have been on the tape.
19 JUDGE AGIUS: Yes. Exactly. I mean, I think it's the case of
20 having the interview made available to the witness in case he wants to
21 have a look at it now, or for future reference, if he's asked further
22 questions that refer specifically to it.
23 THE WITNESS: Your Honour I have the interview. I just need the
24 page number.
25 JUDGE AGIUS: The page number.
1 MR. LAZAREVIC: Your Honour, I'll make reference to the page.
2 It's page 43 and 44.
3 JUDGE AGIUS: Yes, Mr. Nicholls?
4 MR. NICHOLLS: I don't really object, Your Honour, but you could
5 always go through the transcript and ask the witness what's not on a page
6 over and over again. So my suggestion is that it's more in the line of
7 argument that this was not asked, which is apparent from the transcript,
8 so I'm not objecting at this point but it's just a --
9 JUDGE AGIUS: I concede you that, Mr. Nicholls, but please do keep
10 in mind that we are lawyers coming from different jurisdictions and
11 different traditions and different schools, and the approach is not always
12 to what you are used to. So provided there is no harm done it may take us
13 a little more time, but at the end of the day we will get there.
14 Yes, Mr. Lazarevic.
15 MR. LAZAREVIC: [Interpretation]
16 Q. You see at this moment I'm going to give up on a number of
17 questions, but I'm going to reserve the right to issue an oral argument to
18 that effect. But there is one more question that I'm going to ask
19 Mr. Graham and that will be my summary of all the questions that I'm not
20 going to ask.
21 Besides having introduced himself as Zoran Bubic, a lawyer, from
22 the beginning to the end of the interview, during the time that he was
23 there, did Mr. Bubic utter a -- any other word during that interview?
24 A. Any word that he uttered will be on the tape.
25 Q. Of course, it would also be reflected in the transcript?
1 A. Yes.
2 Q. Thank you. I believe that you have saved both me and yourself
3 quite a lot of time and quite a lot of questions that I'm not going to ask
5 Now I would like to move on to the next interview which took place
6 on the 11th March, 2002. In that interview, from the very beginning,
7 Mr. Borovcanin's lawyer was there, but this time it was a different person
8 with a similar name, his name is Goran Bubic. Can you confirm that for
9 the Trial Chamber?
10 A. I accept there were two different lawyers on different days, but
11 their names, I couldn't confirm; but there were definitely two different
12 lawyers. Which was Goran and which was Zoran, I do not know.
13 Q. That is okay, but that's on page 1 of the transcript of the
14 11th March interview. I don't think that there will be any problems
15 there. But I will not insist on jogging your memory. If you can't
16 remember who is who of the two of them, then it's okay.
17 If you remember, yesterday we said that Mr. Borovcanin asked for
18 the tape from the interview to be provided to him so as to be able to
19 listen to that. You testified to that. In fact, that's on page 45 of the
20 transcript, and then you said that you were not sure that it was possible
21 that Mr. Borovcanin had been provided the 20th of February interview
22 through Mr. Jovicic duty as an officer with the Hague Tribunal. I don't
23 want to go into details, but in any case can you remember all that?
24 A. Yes, but I think on reflection if you go further through this
25 interview there is a passage where I'm actually handing the tapes over on
1 the 20th which confirms I took them back at this time.
2 Q. I apologise. I would just like to clarify this. Could you please
3 give me a moment? I would like to consult the transcript because I'm not
4 sure whether I received the correct translation of your words.
5 This is the essence of my previous question. As Mr. Borovcanin's
6 counsel, based on the information that we have, we are putting it to you
7 that Mr. Borovcanin did receive the tapes but only from the 20th of
8 February 2002, and that he received those tapes only four months following
9 the interview. Do you allow for this possibility? Do you agree that this
10 is correct?
11 A. I thought that he received the tapes in March 2002. It may well
12 be that transcripts could have taken that length of time to be prepared.
13 Q. Do you have your own independent recollection of what actually
14 happened or do you only have your assumptions; i.e., that you assume that
15 you were the one who provided him with the tape of that interview?
16 JUDGE AGIUS: Yes, Mr. Nicholls?
17 MR. NICHOLLS: My light is flashing. No objection but the
18 reference to this topic is -- if it helps my friend, is on page 163 at the
20 JUDGE PROST: The second interview?
21 MR. NICHOLLS: The second interview, sorry, Your Honours.
22 JUDGE AGIUS: The 11th March one, isn't it?
23 MR. NICHOLLS: Correct, Your Honours.
24 JUDGE AGIUS: Okay. Thank you.
25 Mr. Lazarevic.
1 MR. LAZAREVIC: [Interpretation]
2 Q. Okay. Let's then look at that. You have page 163 before you.
3 Look at the second interview. And please look at the lines from 1 through
4 4 or even through 7 on page 163 of that second interview.
5 A. Yes, I've got that.
6 Q. It arises from this, that you never provided Mr. Borovcanin with
7 the tapes. [In English] You would copy tapes. [Interpretation] Do you
8 have a takeover record? Did Mr. Borovcanin ever sign a receipt confirming
9 that he received those tapes from you? Because it doesn't arise clearly
10 from the transcript that this ever took place.
11 A. I'm not in personal possession of it. If there is one it will be
12 within the Tribunal's system, and I would not be able to recall whether I
13 handed it, the tapes, to Mr. Borovcanin or to his lawyer.
14 Q. Very well. Again we will not insist. If you can't remember, I
15 will not go on insisting. I would like to ask you to look at page 2 of
16 the transcript of this interview, the second interview. I believe that
17 you have it before you now.
18 A. I do, yes.
19 Q. And here you see the caution addressed at Mr. Borovcanin. That's
20 on page 2 of the transcript.
21 A. Yes.
22 Q. Yesterday, we had an occasion on the examination-in-chief to hear
23 that although at the beginning of this caution you told Mr. Borovcanin
24 that he was a possible suspect, the way that was interpreted to him was "a
1 Do you remember on chief Mr. Nicholls pointed to that fact, that
2 this is how the things transpired during the interview?
3 A. Yes, I believe from yesterday there were different words used on
4 different occasions, I'm not sure which occasion you're talking to,
5 talking about.
6 JUDGE AGIUS: That's a very pertinent remark that he's made to
7 you, Mr. Lazarevic. I think you need to be specific, more specific.
8 MR. LAZAREVIC: [Interpretation]
9 Q. Yes, sir. Let me draw your attention to this. It's page 2 of the
10 transcript you have before you. Lines 7 to 14. You have the English
11 version before you now. I will be reading the B/C/S transcript. That is
12 what Mr. Borovcanin heard, to show you my point. "Pursuant to information
13 available to the Tribunal, the Prosecutor of the Tribunal believes you to
14 be a suspect for certain acts that the Tribunal is concerned with.
15 Therefore, before I ask you any questions, I have to advise you of
16 your rights. You have rights because it is believed that you may, that
17 you are a possible suspect." I have been reading from the B/C/S
18 transcript. Now, you have this text in front of you.
19 A. I have an English version which differs -- is not absolutely
21 Q. Precisely. Precisely. That's my point. But what is really
22 important to me is what kind of caution Mr. Borovcanin received. I am not
23 trying to say that you deliberately fell short in any way in giving that
24 caution. I just want to draw everyone's attention to what Mr. Borovcanin
25 actually heard as caution.
1 Now, you are looking at the English text. Mr. Borovcanin was told
2 by you, "a possible suspect," but the translation he received from the
3 interpreter, the word "possible" is missing. So he heard in translation
4 that "he was a suspect." Do you agree with that?
5 A. Yes, if that's what the translation was.
6 Q. Thank you.
7 JUDGE AGIUS: My impression that that is not -- not only is not
8 being contested by the Prosecution, but it was pointed out -- specifically
9 pointed out by the Prosecution themselves. So can you go straight to what
10 you wish to get the witness to state?
11 JUDGE KWON: Can I draw your attention, Mr. Lazarevic, to line 9
12 of previous page, page 12, what you read from the B/C/S transcript was
13 translated by the interpreters as "a possible suspect as well." Is it
14 correct or not?
15 MR. LAZAREVIC: [Interpretation] Yes, precisely, Your Honour.
16 Q. So my point concerning is this -- actually I'm going to put it to
17 the witness now. The second part of the caution, where you again say to
18 Mr. Borovcanin that he may be a suspect and the interpreter interprets
19 that correctly, in the next sentence, however, Mr. Borovcanin hears that
20 he is at once "a possible suspect" and at the same time "a suspect." Do
21 you agree that that's what he heard?
22 A. I'm not contesting it. What I would say is that is not the
23 caution. That is explaining why I'm going to give the caution. The
24 caution is actually the next section.
25 [Trial Chamber confers]
1 JUDGE AGIUS: Yes, Mr. Lazarevic, sorry for that interruption. Go
3 MR. LAZAREVIC: Thank you, Your Honours. I will proceed.
4 Q. [Interpretation] Just one more question regarding the interview of
5 the 11th of March 2002, now I'm only talking about the 11th. Although the
6 interview continued on the 12, I'm only concerned with the 11th.
7 Throughout that interview, did the counsel, the lawyer,
8 Goran Bubic, legal representative of Mr. Borovcanin, utter a single word
9 apart from introducing himself for the benefit of the audio recording?
10 A. Without checking the transcript, I couldn't be certain, but if his
11 name is not mentioned in the transcript, then he will not have said
13 JUDGE AGIUS: All right. Mr. Nicholls, would you be prepared to
14 stipulate what is being suggested by Mr. Lazarevic? Otherwise we would
15 have to give Mr. Graham the opportunity to skim through the transcript.
16 MR. NICHOLLS: I don't think it's a huge point, but I think on the
17 11th and the 12th counsel did speak during the interview.
18 JUDGE AGIUS: All right.
19 MR. NICHOLLS: I don't think we are going to have a huge argument.
20 JUDGE AGIUS: You're not prepared to stipulate. So, Mr. Graham,
21 if you so wish, you can take your time to go through the transcript and
22 confirm or contest the proposition that was put to you.
23 THE WITNESS: Thank you, Your Honour.
24 JUDGE AGIUS: Thank you, Mr. Nicholls.
25 MR. LAZAREVIC: [Interpretation] I'm sorry, maybe I can be of
1 assistance. There is a search engine that can deal with it within a
2 minute. This interview is on 100 pages. I really don't want to take time
3 away from the Trial Chamber. I think that can be done very quickly and
4 then if the --
5 JUDGE AGIUS: I do appreciate your comments and your suggestion,
6 Mr. Lazarevic, but on the other land, do you really need the witness to
7 confirm to you if Mr. Bubic 1, or Mr. Bubic 2, whoever it was, intervened
8 at any time apart from saying good morning or good afternoon or my name is
9 Zoran or Goran Bubic? Can't you prove that through the transcript itself?
10 MR. NICHOLLS: I may be able to shorten it. I see on page 160 and
11 161 there is some discussion of how documents will be exchanged. So
12 technically it's -- I don't think it's a huge point but it is -- I can't
13 stipulate that he didn't say anything other than hello.
14 JUDGE AGIUS: I understand that, Mr. Nicholls. On the other hand
15 I don't think we need questions to establish what we can actually look at
16 and find out ourselves.
17 MR. LAZAREVIC: [Interpretation] All right. Then I will skip this
18 subject altogether. I just wanted to draw the attention of the Chamber to
19 certain facts that are pertinent to my argument.
20 Q. Mr. Graham, could we now look at page 115 of the interview?
21 That's the interview of the 12th of March 2002.
22 If you had a look at the transcript, it's line 10 on page 115 of
23 the transcript. Mr. Nicholls did not deal with this yesterday. But in
24 the version that is agreed between us and the Prosecution, it says that
25 Mr. Borovcanin did not hear the interpretation of the following
1 sentence: "In this interview, your rights remain exactly the same." Can
2 you confirm that this is in the transcript?
3 A. Yes, it is.
4 Q. Thank you. At the very end of this interview, on the 12th,
5 Mr. Borovcanin, if you remember, raised the issue again of getting the
6 tapes of those interviews. And as we had occasion to see a minute ago,
7 you had this conversation about securing tapes for Mr. Borovcanin, he was
8 told he would get them ASAP. We are now talking specifically about the
9 tapes of the 11th and 12th of March interviews.
10 A. May I ask which page of the transcript we are looking at?
11 Q. That's the page of the transcript -- the last page of the
12 transcript, 163, the first line, you are speaking.
13 A. Yes.
14 Q. Can you confirm that now?
15 A. Yes, I can.
16 Q. The Defence of Mr. Borovcanin asserts that the tapes of these
17 interviews of the 11th and 12th of March 2002 were not received by him
18 before he arrived here in The Hague at the Detention Unit. Do you allow
19 for that possibility?
20 A. I have no knowledge either way. I will certainly allow for it,
21 but I have no knowledge.
22 Q. Thank you. It's all right, sir. If you don't know, you don't
23 know. If you have that interview in front of you, look at page 162,
24 please. An offer was made to Mr. Borovcanin that in case something
25 remained unclear during the interview, or if he believed he needed to
1 reanswer a question, he could contact the Office of the Prosecutor and a
2 new interview would be organised. Can you confirm that?
3 A. Yes, I believe it says the best way to do it is for his lawyer to
4 contact our office.
5 Q. You see, I have to tell you that I did not calculate very
6 precisely how long all these interviews with Mr. Borovcanin took. I used
7 a rough estimate made by my colleagues from the OTP, but it is a total of
8 about 15 hours. Is that consistent with what you remember? Does that
9 sound correct? Around 15 hours?
10 A. I really have never sat and added it up. If the -- if that's the
11 fact, then, yes. The start and finish times are all there to be
12 calculated, but I've never done that. I'm not disputing it.
13 Q. But you do remember that there were several interviews, each one
14 lasting several hours?
15 A. It was a long interview.
16 Q. And that is precisely my point. Do you believe that in view of
17 all of that, Mr. Borovcanin would have been able to remember precisely
18 each question and each answer he gave during the interview without
19 listening to the tapes to jog his memory?
20 A. I'm sure he would not.
21 Q. Thank you. I suppose that your experience includes using cassette
22 recorders and that dubbing involves connecting two tape recorders,
23 pressing play on one recorder, pressing record on another recorder, and
24 the recording takes exactly the same amount of time as the tape is long.
25 Is that correct?
1 A. For copying one tape to the other, I believe the Tribunal had a
2 fast copying machine but I'm no expert.
3 Q. All right. But let's take it even that there wasn't one. The
4 dubbing takes as much time as the tape is long. What would therefore be
5 the reason for not making copies for Mr. Borovcanin?
6 A. Do you mean copies on -- at the location at the time?
7 Q. Certainly not, because I can't even assume that you had two tape
8 recorders at the location at the time, but within the next couple of days
9 was it possible, physically possible, to do that?
10 A. There was a procedure in place within the Tribunal for copying
11 tapes such as these. They had to be entered into the evidence unit and it
12 then passed out of my hands. I would not be responsible for copying.
13 Q. Very well. Thank you very much. I have two more questions to end
14 with. Before Mr. Borovcanin provided the interview, he did not take a
15 solemn declaration to say that he would speak the truth and nothing but
16 the truth; is that correct?
17 A. That is correct.
18 Q. My last question: After the end of the interview, Mr. Borovcanin
19 did not sign a receipt, a confirmation, or an affidavit that he had spoken
20 the truth and nothing but the truth during the interview in the same
21 fashion as the witnesses do here in the proceedings before this Tribunal?
22 A. He had not signed, no.
23 MR. LAZAREVIC: [Interpretation] Thank you. I have no further
24 questions for you, sir.
25 JUDGE AGIUS: I thank you so much, Mr. Lazarevic. Who wishes to
1 go next? I have on my list the Beara Defence team, the Popovic Defence
2 team, the Miletic -- and the Miletic Defence team.
3 MR. ZIVANOVIC: We will not cross-examine this witness Your
4 Honour, thank you.
5 JUDGE AGIUS: Merci, Mr. Zivanovic. Mr. Meek? Will you be
6 cross-examining the witness, Madam Fauveau?
7 MS. FAUVEAU: [Interpretation] Probably, Mr. President, for about
8 ten minutes or so.
9 JUDGE AGIUS: Thank you. You asked for 30 minutes, Mr. Meek?
10 MR. MEEK: That's correct, Your Honour. I'm hearing things again,
12 JUDGE AGIUS: [Microphone not activated] [Microphone not
13 activated] [B/C/S coming over English channel].
14 MR. JOSSE: We are hearing Serbian, Your Honour.
15 JUDGE AGIUS: The problem seems to be the following: That my
16 microphone registers as off when it is on. And secondly, whatever I am
17 saying very rightly so is being translated into Serbo-Croat. But that's
18 what I am receiving myself, which shouldn't be the case. Have you been
19 receiving the interpretation in Serbo-Croat? You have. So there is an
20 overlapping between the two channels, the Serbo-Croat channel and the
21 English channel. With regard to the French, Madam Fauveau? Are you
22 receiving interpretation in French?
23 MS. FAUVEAU: [Interpretation] I am indeed, Your Honour.
24 JUDGE AGIUS: All right. Okay. I think it may have been fixed
25 from what I can gather. Mr. Meek, sorry.
1 MR. MEEK: Thank you, Your Honour.
2 JUDGE AGIUS: I'm sure you understand.
3 MR. MEEK: Very understanding, Your Honour.
4 Cross-examination by Mr. Meek:
5 Q. Good afternoon, Mr. Graham, how are you?
6 A. Fine, thank you.
7 Q. Chris Meek and I represent Ljubisa Beara. I have a few questions
8 for you. First is on the first interview, February 20th, 2002, on page 2,
9 you're talking to Mr. Borovcanin about the fact that he has a right to be
10 assisted by legal representative or a lawyer, page -- line 20, correct, do
11 you see that?
12 A. In fact my papers have become mixed.
13 JUDGE AGIUS: Yes, Mr. Nicholls?
14 MR. NICHOLLS: If it helps we can replace the entire set.
15 THE WITNESS: No, I have it setup, Your Honour.
16 JUDGE AGIUS: It's all sorted out?
17 THE WITNESS: Yes.
18 JUDGE AGIUS: Thank you, Mr. Nicholls, any way.
19 MR. MEEK:
20 Q. Mr. Graham, if you would just take the time to read to yourself
21 lines 20 through 24, I would appreciate it.
22 A. I've read them.
23 Q. Now, do you have any specific recollection of after you advised
24 Mr. Borovcanin of the fact that he had the right to a lawyer in this
25 interview, that he responded to you, "Yes," that he understood, "I told
1 you that already. He can join us later." Do you see that?
2 A. Yes, do I.
3 Q. Can you tell this Tribunal, please, this Chamber, when it was that
4 you had discussions with Mr. Borovcanin prior to turning the tape recorder
5 on the 20th day of February 2002 at approximately -- I don't even see the
6 time but that morning or afternoon?
7 A. When Mr. Borovcanin first arrived at the Banja Luka headquarters,
8 I was -- I will have been waiting in the room and somebody would have come
9 to tell me that he was here. I went out for people who were being
10 interviewed. I always met them in the reception area and it will have
11 been at that point that he told me.
12 Q. Now, were you in the room by yourself or was Mr. Peter McCloskey
13 with you in the room?
14 A. When I met, first met Mr. Borovcanin, you mean?
15 Q. Yes, you just described that you had been in a room, someone would
16 have come and told you that the witness was there, the person being
17 interviewed, and you said I went out and met him. My question to you:
18 Were you with Peter McCloskey or not?
19 A. To the best of my knowledge, myself, Mr. McCloskey and the
20 interpreter will have been waiting in the interview room. At that point
21 there will be no guarantee that Mr. Borovcanin was going to turn up. That
22 was not uncommon, for people not to arrive.
23 Q. So I take it that the interpreter, Mr. McCloskey, and yourself
24 were in the same room, but yet you only went out to talk to and meet with
25 Mr. Borovcanin or did Mr. McCloskey go with you? That's my question.
1 A. To the best of my knowledge, Mr. McCloskey did not come with me.
2 The interpreter will have come with me.
3 Q. And how long did that conversation take place?
4 A. To the best of my knowledge it would be one or two minutes. It
5 would be to introduce myself, the fact that Mr. Borovcanin had a lawyer
6 who was not there would have been mentioned, and then we would have gone
7 down to the interview room.
8 Q. Yesterday you were shown the summons that was sent to
9 Mr. Borovcanin. Do you recall that?
10 A. Yes, I do.
11 Q. And in that summons, it's stated that he had the status of a
12 suspect. Do you remember that?
13 A. I do.
14 Q. Then again, how long have you been a law enforcement officer?
15 A. I joined the police in 1985, in the U.K.
16 Q. So by the time you did this interview you'd been a law enforcement
17 officer for approximately 17 years, correct?
18 A. That is correct.
19 Q. And you are very aware of the importance of a person who the
20 government or in this case the Office of the Prosecutor claims to be a
21 suspect to have the right to an attorney if he's going to be questioned,
22 don't you, sir?
23 A. I'm well aware of yeah, the importance of somebody that's going to
24 be questioned as a suspect. The term "suspect" is different in different
25 jurisdictions, I presume.
1 Q. Well, let me just ask you this, Mr. Graham. What did you presume
2 that it meant on the 20th day of February 2002?
3 A. I presumed it fitted in with the definition that I could not quote
4 off-hand, now after being out of the Tribunal for so long, but he fitted
5 the criteria for being a suspect; and therefore should be afforded the
6 rights to be given to somebody of such a status.
7 Q. And it's your testimony under oath that you met with him and he
8 told you that, "I have a lawyer, but he will be coming later because he's
9 tied up in court"?
10 A. That's my recollection, yes.
11 Q. And, sir, the only reason I'm pausing is because we both speak
12 English, and I'm trying to wait until the cursor stops so that the
13 interpreters don't get upset with us.
14 Now, did you, sir, being an experienced police officer, and
15 knowing the importance of a person being -- having the status of a
16 suspect, having legal counsel present, and specifically one who has told
17 you he has legal counsel present, did you explain to Mr. Borovcanin that
18 you did not need to start the interview and should not start the interview
19 until his lawyer arrived?
20 A. Again, if to the best of my recollection, yes, I told him we did
21 not need to start the interview. I do not recall and do not imagine that
22 I did not tell him we do not need to start the interview. That was up to
23 him. I gave him a very clear opportunity to start or not to start and to
24 postpone any way through whenever he felt was necessary.
25 Q. Did you take the time to advise him that in his position, if you
1 were him, you would wait for the lawyer?
2 A. The advice that I gave him is on the tape, and I was certainly not
3 taking putting myself the position of being a lawyer and giving him legal
4 advice. I just told him as it was, it's all on the tape exactly what I
6 Q. Mr. Graham, maybe I've been unclear. We haven't even got to the
7 taped interview. I'm talking about when you met him outside and it wasn't
8 taped and he told you he had a lawyer, sir.
9 JUDGE AGIUS: Yes, Mr. Nicholls?
10 MR. NICHOLLS: My friend is not being clear. I think he's correct
11 on that because Mr. Graham has already discussed the nature of that
12 conversation, I won't say in front of the witness exactly how he described
13 it, but he's described what happened outside the -- in the reception room
14 and how long it lasted and Mr. Meek is trying to make that into a long
15 conversation where there is no evidence of that.
16 JUDGE AGIUS: Yes, Mr. Meek. Why don't you go straight to the
18 MR. MEEK: Okay. I'll do that, Your Honour.
19 Q. Again, Mr. Graham, with all your experience and training and
20 you've testified the importance of a person like this having an attorney,
21 why didn't you tell him he should not start the interview until his lawyer
23 JUDGE AGIUS: I think he's answered that question. According to
24 him that would have been the proper thing for a lawyer to do, and he was
25 not filling that role.
1 MR. MEEK: Thank you, Your Honour.
2 JUDGE AGIUS: That's how I got it. So let's proceed.
3 MR. MEEK:
4 Q. Did you have any discussions with the senior legal adviser,
5 Peter McCloskey, who was present with you about this situation of
6 Mr. Borovcanin showing up having a lawyer but his lawyer not being present
7 since Mr. McCloskey was a lawyer?
8 JUDGE AGIUS: Are you in or out now, Mr. Meek?
9 MR. MEEK: Your Honour, at any time between the time Mr. Graham
10 says he met Mr. Borovcanin outside and before the interview started, sir.
11 JUDGE AGIUS: Okay. Before the interview started. He's already
12 told you that Mr. McCloskey was not with him at the time. He was with the
13 interpreter at the time. So Mr. McCloskey couldn't have said anything.
14 MR. MEEK: Let me clarify that if I might.
15 Q. You had this discussion with the interpreter and Mr. Borovcanin.
16 You walked inside. Am I correct so far?
17 A. You're correct.
18 Q. And at that point, you were in the room with Mr. Borovcanin,
19 Mr. McCloskey, the interpreter and yourself. The four of you, correct?
20 A. That is correct.
21 Q. Before the tape recorder was turned on, did you tell
22 Mr. McCloskey, take him aside or even in front of Mr. Borovcanin, Peter,
23 he has a lawyer but his lawyer is not going to be here. What should we
24 do? You're a lawyer, I'm not. Did you ever have that sort of
1 A. I do not recall any conversation with Mr. McCloskey. I will have
2 gone in and pointed out the fact that Mr. Borovcanin was here without his
3 lawyer, and his lawyer was at court and coming later. There was no
4 discussion about -- that I recall about how to continue. It then went on
5 to the tape which is standard procedure.
6 Q. Sir, may I ask you in your experience in law enforcement and
7 interviewing individuals, suspects, and potential suspects, do you prefer
8 that they have lawyers or not have lawyers, as a law enforcement officer?
9 JUDGE AGIUS: Yes, Mr. Nicholls?
10 MR. NICHOLLS: I would say that was totally irrelevant to this
12 JUDGE AGIUS: Yes. I suppose you wish to respond to that or move
13 to your next question.
14 MR. MEEK: I would like to respond to it. It goes to the -- this
15 issue goes to the voluntariness, or if anything was coerced, then I think
16 it's relevant as to whether or not this witness would have preferred to
17 take this statement from Mr. Borovcanin with an attorney or without an
19 JUDGE AGIUS: Yes. Thank you.
20 MR. NICHOLLS: He's just shown how totally irrelevant it is
21 because what was going on in the investigator's mind is -- has got nothing
22 to do with the way the interview was conducted. It doesn't matter what he
23 preferred about attorneys, what he preferred to have for lunch that day.
24 We've got the tape recording exactly the interview started. My
25 friend's -- of everything that happened during the interview, and my
1 friend has just gone through what happened before the interview.
2 JUDGE AGIUS: Yes.
3 [Trial Chamber confers]
4 JUDGE AGIUS: Mr. Meek, please proceed to your next question.
5 MR. MEEK:
6 Q. Sir, you flew in on last Saturday to testify; is that correct?
7 A. That's correct, yes.
8 Q. Where did you fly in from, sir?
9 A. Manchester, England.
10 Q. And yesterday you said that the first opportunity you had to
11 actually read a version of the transcript was on your flight over, is that
12 true, sir?
13 A. By that I mean I looked at it in the airport in Manchester, yes.
14 Q. And did you read it all?
15 A. I skimmed read it. I wasn't in a position to read it all in
16 detail at that stage.
17 Q. Okay. And so yesterday when you said you actually read the
18 version of it, today you're saying you skimmed it; is that correct?
19 A. Well, I read through it. But if you'd asked me detailed questions
20 on it, I would have struggled. One of the issues that I had was the font
21 that I'd been able to print it out in. Did not have the times PP font, so
22 a great many of the words did not make any sense to me.
23 Q. Now, also, in going back briefly, let me ask you, sir, you knew
24 because of the summons Mr. Borovcanin was a suspect. Can you tell me,
25 please, why it was that you kept telling him, when you were reading him
1 his so-called rights, that he was a possible suspect?
2 JUDGE AGIUS: Yes, Mr. Nicholls?
3 MR. NICHOLLS: I think if I recall, Your Honour's grounds rules
4 for this hearing was that everybody would have a chance to cross on the
5 limited issues we had here, but there would not be repetition of the same
6 questions and the same topics by all council which is what my friend is
7 doing. This was gone over in direct and also obviously in
8 cross-examination in quite a bit of detail.
9 JUDGE AGIUS: He did answer it yesterday, so it's perfectly
10 legitimate for you, Mr. Meek, to refer to that part of his testimony, and
11 if you need any clarification, you will proceed along those lines. But
12 not to repeat the same question, the same question that was already
14 [Trial Chamber confers]
15 JUDGE AGIUS: Yes. Go straight to the --
16 MR. MEEK: Let me rephrase it, Judge. I don't believe it's the
17 same question but I'll rephrase it.
18 Q. You testified yesterday that one of your colleagues who had been
19 an investigator with the Office of the Prosecutor gave you a sheet of
20 paper and that's what you read from, correct?
21 A. Yes, it's actually a document that was on the OTP system, under
22 one of the electronic files. He advised me where it was. I've got a hard
23 copy of it.
24 Q. And if I understand you correctly, that hard copy had the word
25 "You are considered to be a possible suspect," and that's why you read
1 it, correct?
2 A. Yes.
3 Q. But you were a police officer for 17 years before you took this,
4 and you knew that Mr. Borovcanin was actually a suspect. So my question
5 is why didn't you tell him that instead of just read from that document
6 when you knew that document wasn't correct?
7 A. I was a police officer in England working under the laws and
8 procedures of England for the period you're talking about. I was working
9 under the laws and procedures of the Tribunal, and this was a document
10 that was being used by the investigators within the Tribunal. I used it
11 in good faith, and I have no reason to question it.
12 Q. So if I understand you correctly, even though you knew
13 Mr. Borovcanin was a suspect, you were going -- you were willing to tell
14 him he was a possible suspect because you didn't want to question some
15 supposed ICTY procedure, is that your answer, sir?
16 A. Absolutely not.
17 Q. Okay. Then you had a senior trial attorney or senior trial
18 adviser, Mr. McCloskey, with you?
19 JUDGE AGIUS: One moment, Mr. Meek, do you wish to explain any
20 further? Because I think you were stopped right before you started to
21 explain further.
22 THE WITNESS: Yes, I absolutely did not -- I think you said I was
23 willing to tell him he was"a possible suspect," because I didn't want to
24 tell him that he was actually a suspect. That is not the case at all.
25 All the way through the interviews, I was trying to be totally
1 fair and honest and find the truth. There was no intention or plan or --
2 to mislead or misinterpret anything. I thought I was being perfectly
4 MR. MEEK:
5 Q. Let me -- in your last answer let me ask you if I understand it
6 correctly. You were -- you thought you were being perfectly -- I'm sorry,
7 perfectly clear in telling Mr. Borovcanin he was a possible suspect when
8 you knew he was a suspect; is that correct?
9 A. I used the terminology to try and explain to Mr. Borovcanin that
10 he had certain rights, and this was the reason I was giving him those
11 rights. The right with regards to the caution with regards to having a
12 lawyer present. So it was an explanation to him of why I was giving him
13 those rights whereas many of the people I interview as witnesses did not
14 have those rights.
15 Q. Well, many people you interview as witnesses, excuse me, strike
16 that, I'll start over. Witnesses being interviewed are different than
17 suspects being interviewed, aren't they, sir?
18 A. Exactly. That's why I was -- what I was trying to explain to him,
19 there was a reason for giving him those rights.
20 Q. Do you believe or excuse me, are you saying under oath that you
21 thought you were being fair and above board when you told him he was
22 considered a possible suspect when you knew he was considered a suspect?
23 JUDGE AGIUS: Yes? Mr. Nicholls?
24 MR. NICHOLLS: Asked and answered.
25 JUDGE AGIUS: Yes. Correct.
1 MR. NICHOLLS: And I'll make the point. I don't think there is
2 any need to continue to repeat "under oath." Everybody knows who is under
3 oath. It's just a -- there is no jury here.
4 JUDGE AGIUS: Okay. Skip that. We all do it, Mr. Nicholls.
5 Although sometimes I agree it maybe redundant. Yes, Mr. Meek?
6 MR. MEEK: I'm -- Judge, I don't think he's answered the question.
7 JUDGE AGIUS: He's more than answered it, and he's answered it
8 about six times already.
9 MR. MEEK: Okay.
10 Q. Now, you testified yesterday that the purpose of the interview was
11 to establish where Mr. Borovcanin was and what happened.
12 JUDGE AGIUS: You want the reference, Mr. Nicholls?
13 MR. NICHOLLS: No objection, just a reference, please.
14 MR. MEEK: Page 66 lines 24, 25, page 67, lines 1 and 2.
15 JUDGE AGIUS: Thank you, Mr. Meek.
16 MR. MEEK:
17 Q. I will read it to what you your answer was: Answer: "I don't
18 recall that being put as a direct question during the interviews, but the
19 purpose of the interview was to establish where Mr. Borovcanin was and
20 what happened. That was the purpose of the interview."
21 Do you recall that, sir?
22 A. I recall correctly that was in answer to a question about the
23 specific crimes or acts being put to Mr. Borovcanin in the interview.
24 Q. Well, I'm asking you was that the sole purpose of the interview,
25 just to establish where Mr. Borovcanin was and what happened?
1 A. The purpose, the complete purpose of the interview, I was going
2 through as it -- it's self explanatory really. I went through the -- his
3 background, his CV, and then the events in and around Srebrenica, and my
4 primary role was to go through a chronology of those events.
5 Q. Now, you'll agree with me, won't you, sir, that during the
6 interview on the 20th of February 2002, and the further interview on 11th
7 of March 2002, that Mr. Peter McCloskey from the Office of the Prosecutor
8 asked the majority of the questions to Mr. Borovcanin?
9 A. Yes.
10 Q. So I will ask you, if you know if your purpose was, as you just
11 explained, what was the purpose of Mr. McCloskey's questions for
12 Mr. Borovcanin? If you know.
13 JUDGE AGIUS: Yes, Mr. Nicholls?
14 MR. NICHOLLS: The relevance of this to the voluntariness of the
15 interview is completely escapes me. If the interview ends up being
16 admitted and Mr. Graham testifies, which will be brief, about parts of the
17 interview and how it's handled, then questions that go -- that may be
18 relevant at that point can be put. But the basis of this hearing, I don't
19 think dissecting all of this has any relevance whatsoever to the issues
20 which we have to resolve on its admissibility.
21 JUDGE AGIUS: What's your comment on that and please answer
22 limitedly to the admissibility aspect that is being raised by
23 Mr. Nicholls, Mr. Meek.
24 MR. MEEK: Your Honours, if you say I can't ask the question, I'll
25 proceed. I think it's relevant, but if you don't then I won't proceed.
1 [Trial Chamber confers]
2 JUDGE AGIUS: We had some doubts, but I think it's clear now in
3 our minds now and it's unanimous. We have no doubt in our mind that this
4 has got nothing to do with admissibility.
5 MR. MEEK: Thank you, Your Honours.
6 JUDGE AGIUS: We were going to say you're welcome, Mr. Meek, but I
7 don't -- go ahead.
8 MR. MEEK:
9 Q. Would you agree with me, Mr. Graham, that in interviews such as
10 these, when you start to give warnings to the people being interviewed,
11 that the mistake of one word or two words can be very important?
12 A. Well, it depends on the words and the context.
13 Q. All right. Well, let me ask you this: If you had dealt -- and
14 you have, I'm sure, in your 17 odd years or now 20 years, 22 years, as a
15 police officer, with people who have never come across and been entangled
16 in the criminal justice system, and they become a suspect, and they're
17 told that they have a right to an attorney, and they have a right not to
18 be -- not to answer questions but if they do, anything they say can be
19 used in a court of law and that person is a lay person; would you deem it
20 important that they were not told that whatever they said would be used
21 against them?
22 JUDGE AGIUS: Yes, Mr. Nicholls?
23 MR. NICHOLLS: Trying to make sure I understand. Is he saying
24 that based on the fact that he's been a policeman for 15 years, 20 years,
25 that he knows about the rights and the obligations and the way the system
1 works with all suspects being interviewed and that therefore a policeman
2 should know and would know these things? Because if he is, then it's
3 irrelevant in putting this to Mr. Borovcanin who is also a policeman for
4 the same amount of time.
5 JUDGE AGIUS: Thank you, Mr. Nicholls. As I understand Mr. Meek,
6 and Mr. Meek, I stand to be corrected if I misrepresent what you said,
7 Mr. Meek's question is the following: Mr. Graham, given your extensive
8 experience, given the common knowledge that we are dealing with a layman
9 and not a -- someone conversant with the law, do you give any weight to
10 the fact that when your statement, your caution, is being translated to
11 him, the words "against you" are omitted? Is -- did I represent your
12 question right, Mr. Meek?
13 MR. MEEK: You did, Your Honour.
14 JUDGE AGIUS: Thank you. Yes, do you wish to comments now on it,
15 Mr. Nicholls?
16 MR. NICHOLLS: No, if he's asking it in a vacuum context it has
17 nothing to do with this interview, then I guess don't object. However, I
18 will point out that it's also irrelevant to the extent that those words
19 are not part of our warning.
20 JUDGE AGIUS: That aspect can become a submission later. For the
21 time being it's being put as a proposition. It's being put as a
22 proposition to the witness. And please keep in mind, Mr. Meek, the
23 question that I put to the witness myself yesterday, whether he was aware
24 that those words were not translated, whether he was aware at the time
25 that those words were not translated to the witness, and he told us that
1 he wasn't; he only became aware of that now. So what he can answer you
2 now is how he feels about this whole affair now.
3 MR. MEEK: Well, no, I understand that he doesn't speak B/C/S, and
4 he didn't know it until now. But that begs the question -- I just
5 wanted --
6 Q. Do you understand the question?
7 A. The fact that the words "against you" were omitted?
8 Q. Yes.
9 A. Yes, of course those words should have been used, the jurisdiction
10 that I currently work in use the precise words of the caution, you have to
11 make sure the person understands what you're actually telling them and
12 then it becomes a matter of law.
13 Q. Yeah. And it's also important, is it not, that -- and again,
14 bearing in mind your expertise, so to speak, your years of experience as a
15 law enforcement officer, that when you go to interview a suspect and he --
16 the person, he or she is a suspect, they should be clearly told that
17 they're a suspect and not a possible suspect; do you agree with that, sir?
18 A. I believe I've answered that question. It depends on the law
19 enforcement area you're working in, and I was working within the laws and
20 procedures of this Tribunal.
21 JUDGE AGIUS: Any further questions, Mr. Meek? Because it's break
23 MR. MEEK: Your Honour, I see it's time for the break. I may have
24 a few questions after the break is all.
25 JUDGE AGIUS: All right. So we'll have a 25-minute break starting
1 from now. Thank you.
2 --- Recess taken at 3.45 p.m.
3 --- On resuming at 4.16 p.m.
4 JUDGE AGIUS: Yes, Mr. Meek?
5 MR. MEEK: Thank you, Mr. President.
6 Q. Mr. Graham, yesterday, upon questioning by Mr. Lazarevic, and for
7 the -- everybody here it would be on page 74 of yesterday's transcript,
8 lines 2 through 7, but previously to your answer, he had asked you if you
9 had ever told his client that he was free to leave the room, specifically,
10 and I think your answer was, again from page 74 of yesterday's transcript,
11 line 2, "When I'm reminding Mr. Borovcanin of his rights, I do tell him
12 you do not have to answer any of your questions, if you want to, in terms
13 of telling him he's free to leave the room. As I say, as an investigator
14 I would have no power of arrest and that would be just arresting somebody.
15 He's been out on a fresh air break so it didn't seem something I
16 needed to say at that stage."
17 Do you recall that, sir?
18 A. Yes.
19 Q. And that was the fresh air break on February 20th, when you
20 stopped the interview at 10.27 a.m. and started it again at 15 minutes
21 later, at 10.42 a.m. Do you recall that, sir? And if you're looking for
22 it it's in the first interview, page 23, is where the interview continues,
23 at 10.42 in the morning.
24 A. Yes. I think I state that in my opening lines of that tape.
25 Q. Do you have any independent recollection of that?
1 A. No, I do not.
2 Q. Okay. Did you make any notes on this interview?
3 A. Not that I recall, certainly not any detailed notes and none that
4 I kept. I was relying totally on the interview tape.
5 Q. So If you did take notes, you destroyed them? Is that what you're
6 saying, sir?
7 A. I didn't keep them. It was not normal practice to keep them. It
8 was with the interview, and I certainly wouldn't have made notes of
9 anything happening between -- in the breaks.
10 Q. So when you say you didn't keep them, you destroyed them or
11 through them away or did you leave them in a file here in the Tribunal?
12 A. No, they would have been shredded along with the interpreter's
13 notes at the time which was policy, but do I not recall making any notes.
14 I'm surmising if I did.
15 Q. Do you recall whether or not you and Mr. McCloskey went outside on
16 this short break to get fresh air and smoke a cigarette, perhaps?
17 JUDGE AGIUS: Yes, Mr. Nicholls?
18 MR. NICHOLLS: If I may -- where are we going?
19 MR. MEEK: Well, just --
20 JUDGE AGIUS: I hope not to smoke a cigarette.
21 MR. NICHOLLS: Did you and Mr. McCloskey go outside and smoke a
23 MR. MEEK: That's not what I asked, Judge. Let me rephrase it.
24 JUDGE AGIUS: That's what you asked actually, Mr. Meek, but you're
25 free to rephrase it.
1 MR. MEEK: Let me rephrase it.
2 Q. You indicated that Mr. Borovcanin did go outside, correct?
3 A. From the recollection I'm going off the tape, we had breaks and
4 I'm stating there on the tape that we've had a break for fresh air.
5 Q. Do you have any independent recollection of whether you and/or
6 Mr. McCloskey went outside and were next to or close to Mr. Borovcanin
7 during that break?
8 A. I have no recollection, but I would not have stayed close to
9 Mr. Borovcanin, particularly -- I certainly would not have had any
10 conversation with him whatsoever.
11 Q. Was there any times during these interviews when you were not
12 having conversations with Mr. Borovcanin, but during breaks of any length
13 of time you and Mr. McCloskey would be talking to each other in English
14 and be close enough where he could hear you?
15 A. I do not recall any, but Mr. Borovcanin from my recollection spoke
16 some English so --
17 Q. That's correct. So my question is did you recall having any
18 conversations with Mr. McCloskey to the effect that maybe it would help
19 Mr. Borovcanin if he would be a more open or tell the truth such that he
20 could hear you say such things?
21 A. Absolutely not.
22 Q. Okay. Now, I want to take you to the end of that interview on the
23 20th of February 2002, and you might find it on page 89. And Mr. Graham,
24 really my pages are a little different. But it's the very end of that
25 interview, the last three pages of the first interview. While you're
1 looking for it, I'm not sure that you really need it, but you say that the
2 tape is about to finish, time is 1715, being 5.15 in the afternoon, I'll
3 just turn and put a new tape in straight away. You see that, sir?
4 A. That is correct.
5 Q. And then, on down, you state -- the next thing that is stated on
6 this transcript and on the tape would be you saying, "Time is now 1740 on
7 Wednesday, the 20th of February 2002"?
8 A. That's correct.
9 Q. This is the then continuing for most of the day with
10 Mr. Borovcanin. You say, "If I can just confirm Mr. Borovcanin, when the
11 last tape finished, we were planning to carry straight on. However, it
12 was decided that senior trial attorney Mr. McCloskey should have a brief
13 chat with your lawyer, Mr. Bubic, and so to avoid any complications, you
14 were asked that you were not present while they had a legal consultation;
15 is that correct? Do you recall saying that, sir?
16 A. It's on the tape.
17 Q. Do you recall saying it?
18 A. I don't recall those exact words, no, but I'm happy that's what I
19 said because it's on the tape.
20 Q. Do you remember that 25-minute break?
21 A. I remember the incident, yes.
22 Q. And where were you, sir? Were you out with Mr. McCloskey and
23 Mr. Bubic?
24 A. No, I was not. I remained in the interview room with
25 Mr. Borovcanin, and I believe the interpreter.
1 Q. All right. So no interpreter went out with Mr. McCloskey and
2 Mr. Bubic?
3 THE INTERPRETER: Could you please slow down for the interpreters?
4 JUDGE AGIUS: Did you hear that, Mr. Meek? The interpreters would
5 like to you slow down.
6 MR. MEEK: I apologise to the interpreters.
7 JUDGE AGIUS: And that applies to you as well, Mr. Graham. Please
8 don't overlap between question and answer. Allow a short pause.
9 THE WITNESS: I do not recall if the interpreter remained or went
10 out with Mr. McCloskey.
11 MR. MEEK:
12 Q. You don't recall -- according to your testimony earlier today, I
13 believe, you don't recall that either one of these lawyers named Bubic
14 spoke any English; isn't that correct?
15 A. Which is why I do not recall whether the interpreter went out or
16 did not go out. I assume if Mr. Bubic did not speak English then the
17 interpreter will have gone out, but I have no direct recollection after
18 this length of time.
19 Q. Well, do you have any direct recollection of sitting in a room
20 with Mr. Borovcanin for 25 minutes just the two of you?
21 A. I remember remaining in the room. And I'm not sure that this was
22 even the only occasion that happened.
23 Q. You mean there were more occasions where Mr. McCloskey deemed it
24 necessary to have a brief chat with Mr. Borovcanin's lawyer outside the
25 presence of Mr. Borovcanin?
1 A. No. There were more occasions where there was a break for some of
2 these tapes. I could not tell you precisely at exactly which breaks
3 Mr. Borovcanin left the room, remained in the room. All I can tell you is
4 that, as is confirmed on the tapes, he was not asked any questions and
5 there was no interview during those breaks.
6 Q. Sir, you say on the tape that while you had planned to carry
7 straight on, that it was decided that Peter McCloskey should have this
8 chat with lawyer Bubic. Can you tell me, sir, who decided this?
9 JUDGE AGIUS: Yes, Mr. Nicholls?
10 MR. NICHOLLS: I haven't objected up until now, but I don't see
11 what this is relevant to as far as admissibility. I don't see what --
12 he -- he hasn't tied this up into any relevant legal issue and certainly
13 not any legal issue he's advised us of. We were limited to the issues
14 which were discussed on the 28th of June, that Mr. Lazarevic outlined, and
15 I just don't see where this is going. He's talking about a discussion
16 that -- between two attorneys. That has nothing, again, to do with the
17 issue before us now.
18 JUDGE AGIUS: Yes, Mr. Meek? Could you respond to that, please?
19 MR. MEEK: Yes, I'd like to respond, Your Honour. The fact is I
20 think that it may very well have relevance to the issue of voluntariness,
21 coerciveness, and whether this should be admitted against Mr. Borovcanin
22 because you see this was the end of the first interview and it stopped
23 immediately thereafter. Correct?
24 MR. NICHOLLS: Mr. Lazarevic representing his client went through
25 his entire cross-examination and there was no attack whatsoever in the
1 integrity of the Prosecution, of Mr. McCloskey, of Mr. Graham, or of
2 anybody involved.
3 Mr. Lazarevic has confirmed to us that he is not alleging that
4 there was ever at any time any coercion, any improper behaviour of that
5 kind whatsoever during any of these interviews with his client. Now, if
6 that's his position, his client, there is no foundation, there is no way
7 that Mr. Meek can go on this fishing expedition. He's got no foundation
8 for it whatsoever. He's just going through this speculative trawling
9 exercise in the hopes of finding some way to call Mr. -- the STA as a
10 witness. It's got no relevance, it's got no foundation, he should not be
11 allowed to continue down this path.
12 JUDGE AGIUS: Yes, Mr. Meek, how do you tie up the conversation
13 that apparently took place between Mr. McCloskey and Mr. Bubic, whichever
14 one of them it was, with the question of voluntariness and coercion?
15 MR. MEEK: I think --
16 JUDGE AGIUS: If the rest of the transcript, what the rest of the
17 transcript indicates is that the conversation was in the direction of
18 stopping the interview for the day so that the interviewee would have an
19 opportunity to consult with his lawyer, Mr. Bubic. And because of that,
20 the interview came to an end on that day. So how do you tie it up with
21 what you referred to as voluntariness and coerciveness? I use coercion
22 but --
23 MR. MEEK: I see that Your Honour has read the transcript.
24 JUDGE AGIUS: We have it here.
25 MR. MEEK: Yes, of course. The other question I have is I think
1 the objection of the Prosecutor went to my standing to ask these questions
2 more so than what -- where I was going with it. But if they want to --
3 let me answer if I might, Your Honours.
4 JUDGE AGIUS: Okay. Go ahead.
5 MR. MEEK: If they want to and they've told you and they've told
6 us, they want this interview admitted and they want it admitted against
7 not only the maker but everybody else, and I submit to Your Honours that
8 if something was all of a sudden there is a 25 minute break and Your
9 Honour must feel that it was only about whether we should stop for the day
10 or not, then I should be able to ask this witness what he knows about what
11 they talked about if anything and why they took the break.
12 JUDGE AGIUS: But then put that question and not the question that
13 you put before.
14 MR. MEEK: All right.
15 JUDGE AGIUS: But, however, one moment, Mr. Nicholls. You have
16 not reflected correctly the essence of what Mr. Nicholls pointed out to
17 you. What he pointed out to you is the following. We have listened to
18 two hours plus of cross-examination by the Borovcanin Defence team, at no
19 point in time was it hinted in the least that there was even the slightest
20 measure of coercion, and you're being taken to task on this. If that is
21 the position taken by the Borovcanin Defence team on behalf of their
22 client, how do you then move a step further and tie up the -- what we have
23 with the notion of coercion? If there is no allegation of coercion from
24 the person who is most interested in this?
25 MR. MEEK: Well, Your Honours, we certainly --
1 [Trial Chamber confers]
2 JUDGE AGIUS: Mr. McCloskey, the only information that --
3 Mr. Meek, sorry, the only information that transpires out of the relevant
4 part of the transcript is that there was indeed a conversation between
5 Mr. McCloskey and one of the Bubics, as a result of which once the
6 interview was started again, it was pointed out that discussions had been
7 held as a result of which it was felt appropriate that the interview will
8 not proceed on that day and that rather the interviewee would have full
9 opportunity to consult with his lawyer. That is what you have.
10 There is no indication from anyone or anything else that what
11 appears in the transcript is not truthful or faithful to what was stated
12 and what was audio recorded. That's the position. So our question to you
13 is: How do you relate this to the admissibility of the statement?
14 MR. MEEK: First off, Your Honour, as you stated, when they came
15 back on the record, Mr. McCloskey did, in fact, talk about that they
16 agreed that it would be appropriate to stop the interview at that time but
17 before that Mr. McCloskey had told Mr. Borovcanin that, "Your lawyer and I
18 were able to discuss your situation a little bit. As you know, he's new
19 in, to the case. I think you would agree that we were appropriate and
20 candid and good discussions." But how we would tie it to it is a
21 relevancy or the issue in this hearing as to the second -- the March
22 interview. Was what they discussed -- was what they discussed --
23 JUDGE AGIUS: One moment, earlier on, I can quote chapter and
24 verse, if I find it, yes. You said, "the fact is" -- that's page 41,
25 lines 9 onwards,"the fact is I think it may very well -- it may very well
1 have relevance to the issue of voluntariness coerciveness, so our question
2 to you if -- is the following: If what transpires from the transcript is
3 that supposedly Mr. McCloskey and Mr. Bubic came to an agreement that
4 rather than proceeding with the interview, the interviewee at the time
5 would have an opportunity to have consultations with his lawyers," how do
6 you fit that either in the ambit of voluntariness or the related and more
7 specific sphere of coercion? How do you fit this or your question with
8 what I have just told you? Or what you yourself had stated? If you wish
9 to --
10 MR. MEEK: No, I do wish to answer.
11 JUDGE AGIUS: -- or if you want to put another question, please go
13 MR. MEEK: I'm going to answer your question, judge, but what your
14 question is -- what you're saying is that it transpires from the
15 transcript that supposedly Mr. McCloskey and Mr. Bubic came to an
16 agreement that rather than proceeding with the interview, the interviewee
17 at the time should have the opportunity to consult with his lawyer.
18 Well, that is kind of amazing to me since they didn't care if he
19 consulted with his lawyer before they started interviewing him when they
20 knew he had a lawyer but that's not the issue, Judge That's not the
22 JUDGE AGIUS: That's a submission and it is not related to either
23 coercion or voluntariness in any case. I think we need to bring this to a
25 MR. MEEK: All right may I ask.
1 MR. NICHOLLS: I was just going to say, Your Honours, it's clear
2 that he is struggling to even articulate a basis of why this is relevant
3 which shows it's purely and nothing else but a fishing expedition. He has
4 not laid out any good faith basis whatsoever to go into this area. He
5 hasn't talked to the other party there, the attorney, there is something
6 very wrong any way -- I'll try to slow down, without a good faith basis to
7 start delving into the discussions between prosecutors and Defence
8 attorneys which occur at virtually every meeting, and I think we should
9 end it now. He has not been able to articulate a single rational basis.
10 He can't even -- he's reading and trying to think of something to say.
11 It's obvious.
12 JUDGE AGIUS: You have the last word, Mr. Meek, and then we
14 MR. MEEK: Your Honour, I think it's funny and kind of amusing
15 that they are so upset that they don't want me to ask this question, and
16 the only question is did Mr. McCloskey tell you what they talked about,
17 that's it.
18 JUDGE AGIUS: Stop, stop, stop.
19 [Trial Chamber confers]
20 JUDGE AGIUS: Next question, Mr. Meek. We see absolutely no
21 connection at all between your question and the aspects of coercion and
22 voluntariness which was not raised by the party who is more -- most
24 MR. MEEK: So if I understand well, then, I can't ask this witness
25 whose idea was it to teak the break or if Mr. McCloskey and he discussed
1 what they talked about?
2 JUDGE AGIUS: I think you can put that question, but I think one
3 of them has been already put and answered. And he told you, I don't know,
4 I don't recall. But you're free to ask both questions again.
5 MR. MEEK: Okay.
6 Q. Who wanted to take the break and decided to, if you remember?
7 A. I do not recall who instigated the break.
8 Q. Now, you were with Mr. McCloskey for a few days after this
9 interview, were you not?
10 A. Yes, I was.
11 Q. Did you and he discuss what had been talked about with Mr. Bubic?
12 A. No, we did not.
13 Q. Thank you very much. I have no further questions.
14 JUDGE AGIUS: Thank you, Mr. Meek. Madam Fauveau?
15 MS. FAUVEAU: [Interpretation] Thank you, Mr. President.
16 JUDGE AGIUS: Would you introduce yourself to the witness, please?
17 Cross-examination by Ms. Fauveau:
18 Q. My name is Natacha Fauveau Ivanovic and I appear it here for
19 General Miletic. I will have very few questions for you, in fact.
20 You spoke yesterday and today on many occasions about the caution
21 that you gave to the interviewee. And that involved information about his
22 rights. Do you remember that in the course of that interview,
23 Mr. Borovcanin was cautioned several times that it was very important for
24 him to tell the truth? I'm talking about the interview of the 20th of
1 A. I'm not sure what you're asking me to confirm, Your Honour.
2 Q. Could you look at page 34? I'm not sure it's the same number of
3 the page in your version, I'm not sure we have the same version.
4 A. Is this the first interview, Your Honour?
5 Q. Yes. Yes. That's the transcript of the 20th of February. That
6 should be the page ERN number 0068862.
7 A. I have that page in the English version.
8 Q. Could you read what is between lines 4 and 13, sorry, 14?
9 A. "We are evaluating everything you tell us and it's very important
10 for you to tell us the whole truth because we want to consider that as we
11 evaluate your situation, we don't view you as the -- as we may view Mladic
12 and Krstic and the major commanders in this case, and if you can be open
13 with us and honest with us, we will be able to talk to you and your lawyer
14 and consider the best way to handle your situation. But if we find that
15 you're evading us or protecting other people then we'll just have to do
16 our duty and just continue as without your cooperation.
17 "And we have heard throughout from General Krstic and others
18 blaming it on General Mladic, blaming it on the people that are in Serbia,
19 this kind of thing. So please I'll just stop now so you can think about
20 how important this is to tell us the whole truth, and I thank you for
21 everything you've said so far and the documents you brought."
22 Is that as far as you wanted me to --
23 Q. Thank you for that. I would like to know this: You certainly had
24 the opportunity to interview more than one person within the framework of
25 investigations at this Tribunal and in your national police force. Is it
1 customary to tell a person who has the status of suspect that it is very
2 important to tell the truth?
3 A. In my domestic jurisdiction we would tell somebody they should
4 tell us the truth, yes.
5 Q. To a person who has the status of suspect?
6 MR. NICHOLLS: Asked and answered.
7 JUDGE AGIUS: Yes, correct. I think that was included in your
8 question, previous question.
9 MS. FAUVEAU: [Interpretation] I would agree, Mr. President, but
10 what confuses me a little is that the witness answered "we would tell
11 somebody." That's why I wanted to clear it up.
12 JUDGE AGIUS: Thank you, Ms. Fauveau. And would that "somebody,"
13 you used the word "somebody," would that include a suspect?
14 THE WITNESS: Yes.
15 JUDGE AGIUS: Thank you.
16 MS. FAUVEAU: [Interpretation]
17 Q. Before the Tribunal, in the Tribunal, are you in the habit of
18 telling suspects that -- or were you in the habit of telling suspects that
19 it is important for them to tell the truth?
20 JUDGE AGIUS: Yes, Mr. Nicholls?
21 MR. NICHOLLS: I'm just not again clear how this is relevant or
22 how this goes to one of the issues in this case, if she can tie it in
23 somehow because it's not clear to me whatsoever. I mean, she's read out
24 the portion of the transcript, we've gone over some of this ground. Again
25 there has been no allegation whatsoever of any coercion or improperness,
1 so I don't know where it's going.
2 JUDGE AGIUS: Thank you, Mr. Nicholls but Madam Fauveau would you
3 like to comments on that? That can be tied up, Mr. Nicholls. I mean, so
4 I frankly I don't think you need to explain. In our mind it's quite clear
5 that it could be tied up, basically that that could be interpreted by the
6 interviewee as a kind of pressure. This is what she is after.
7 MS. FAUVEAU: [Interpretation] Very well, Mr. President.
8 JUDGE AGIUS: Kindly answer the question, if you need
9 Madam Fauveau to repeat it, then I'm sure she will.
10 THE WITNESS: Yes, if I could have the question again, please,
11 Your Honour.
12 JUDGE AGIUS: Madam Fauveau, please. I can actually read it. The
13 question was the following [Microphone not activated]. I'm sorry. "In the
14 Tribunal, are you in the habit of telling suspects or were you in the
15 habit of telling suspects that it is important for them to tell the
17 THE WITNESS: I do not have the record as to how many times I
18 used that phrase. I would imagine I have used it previously or since in
19 interviews at the Tribunal, but it would be on record. I would expect I
20 probably have used it, yes.
21 MS. FAUVEAU: [Interpretation]
22 Q. And when you used that phrase, is it because you suspect that the
23 person across the table from you is not telling you the truth?
24 A. Can I just be clear on one thing? I think the passage you're
25 referring to is not something that I actually said, but I'm still happy to
1 answer the question about what I do.
2 Q. You are perfectly right. These words here are not yours. But I'm
3 not going to go into that. My question is generally, it doesn't concern
4 this specific occasion only. When you remind somebody that it's important
5 for them to tell the truth, is it because there is a suspicion in your
6 mind that they are not telling the truth?
7 A. Not necessarily. It will depend on the circumstances. I'm just
8 reiterating what I consider to be a valid point whenever I would do that.
9 Q. I have to admit I don't really understand why is it necessary to
10 remind somebody to tell the truth if you have no suspicions whatsoever.
11 What is the purpose, then?
12 A. It's to make sure that they understand that that is what is hoped
13 for from the interview to establish the truth. Not everybody that is
14 interviewed does tell the truth.
15 MS. FAUVEAU: [Interpretation] I have no further questions, Your
17 JUDGE AGIUS: Now, I in my records, I have no indication that
18 anyone else wishes to cross-examine the witness. If I am not right or the
19 situation has changed, please let me know. No? Mr. Nicholls, do you wish
20 to re-examine the witness?
21 MR. NICHOLLS: I think very briefly, Your Honour.
22 JUDGE AGIUS: Go ahead.
23 Re-examination by Mr. Nicholls:
24 Q. You were asked one question on cross-examination by my friend
25 regarding when the tapes from the second interview would have been
1 provided to Borovcanin, and my friend stated that he did not receive them
2 until he arrived at The Hague. Are you aware of or do you recall when it
3 was that Mr. Borovcanin became a fugitive and failed to appear at his
4 appointment to voluntarily surrender?
5 A. I do not recall the exact date, but I am aware that there was a
6 further meeting with Mr. Borovcanin after these interviews and I was not
7 present. It was a different investigator.
8 Q. May I have one moment?
9 [Prosecution counsel confer]?
10 MR. NICHOLLS: Nothing further now, thank you.
11 JUDGE AGIUS: Thank you, Mr. Nicholls.
12 One moment. I need to consult with my colleagues, please.
13 [Trial Chamber confers]
14 MR. LAZAREVIC: Your Honour?
15 JUDGE AGIUS: Yes, Mr. Lazarevic.
16 MR. LAZAREVIC: I apologise. I don't have questions or anything,
17 but just to clarify this issue that Mr. Nicholls has just raised, can we
18 be more specific about the date when the Prosecution believes that
19 Mr. Borovcanin became fugitive? Because I would like to state that it was
20 in September, and the interviews took place in August so just -- in March,
21 I apologise.
22 JUDGE AGIUS: In March. Yes, Mr. Nicholls?
23 MR. NICHOLLS: I don't dispute that.
24 JUDGE AGIUS: Thank you.
25 [Trial Chamber confers]
1 Questioned by the Court:
2 JUDGE AGIUS: Mr. Graham, I have one short question for you. I
3 would take it that you are familiar with what is spelled out in our
4 Rule 42, the Rules of Evidence and Procedure, relating to the rights of
5 suspects during investigations and in paragraph (A)(iii), the rule
6 requires that the suspect is informed prior to questioning in a language
7 that he or she understands that he or she has a right to remain silent and
8 to be cautioned that any statement the suspect makes shall be recorded and
9 may be used in evidence. These are the exact words used in our rules.
10 You will notice that the rule or the subparagraph does not state "that may
11 be used against him or her in evidence or in a trial" or the words that
12 you use yourself.
13 Our question to you or my question to you is the following: If
14 Rule 42 does not contemplate the use, the specific use, of those words,
15 why did you use them? Why did you each time you cautioned the
16 interviewee, you used the words "against you"?
17 A. Because it was on the pro forma document that I had been provided
18 with that had been used by team members.
19 JUDGE AGIUS: All right. Thank you.
20 JUDGE KWON: Do you know that aide-memoire you referred to still
21 exists or not?
22 A. Cannot be certain it was an identical one, but I'm aware that
23 there is one that is very similar with that wording on, and I think the
24 Prosecution are aware of it.
25 JUDGE KWON: Thank you.
1 JUDGE AGIUS: Mr. Graham, I think we can safely bring your
2 testimony to an end here. On behalf of the Trial Chamber and the
3 Tribunal, I wish to thank you for having come over to give evidence, and
4 we also wish you a safe journey back home. Yes, Mr. Nicholls?
5 MR. NICHOLLS: Before Mr. Graham is completely released can I ask
6 a question?
7 JUDGE AGIUS: To whom?
8 MR. NICHOLLS: To you. It's procedural, Your Honour. This
9 hearing --
10 MR. JOSSE: Sorry to interrupt. Could the witness leave the
11 courtroom, please?
12 MR. NICHOLLS: That's fine.
13 MR. JOSSE: I know what this is, and I'd like him to leave the
14 courtroom, I'm sorry.
15 MR. NICHOLLS: Fine.
16 JUDGE AGIUS: Thank you, Mr. Graham.
17 [The witness stands down]
18 JUDGE AGIUS: I don't envisage the need to bring him back.
19 MR. NICHOLLS: Well, it's possible, Your Honour. That's why I --
20 JUDGE AGIUS: Okay, then.
21 MR. NICHOLLS: That's why I asked that he not be released.
22 JUDGE AGIUS: Go ahead.
23 MR. NICHOLLS: It's simply this, Your Honour, this hearing was as
24 you know, limited to a specific topic which we've thrashed out. During
25 the interview, Mr. Borovcanin brought documents to the interview which he
1 shared, the OTP brought documents which were used in the interview, and
2 documents were generated during the interview drawings and charts. In
3 addition on the second interview, Mr. Borovcanin brought a videotape and
4 the OTP brought a DVD and those were viewed.
5 JUDGE AGIUS: Yes.
6 MR. NICHOLLS: Not something I could get into in this hearing.
7 However, if it turns out that the interview is admissible regardless of
8 against whom at this point, I would want to do a brief direct rather than
9 bringing him back, in order to lay the foundation for the admissibility of
10 those documents which are on our 65 ter list. That's all I have to say.
11 I don't know if it would --
12 JUDGE AGIUS: Okay. No, no. Obviously you had discussed this
13 with some members of the Defence.
14 MR. NICHOLLS: Sorry, it may be possible to stipulate. I don't
15 know and we could talk about that.
16 JUDGE AGIUS: Yes. Does anyone wish to comment on that?
17 Mr. Josse?
18 MR. JOSSE: I'm quite loath to go before Mr. Lazarevic on this
19 particular subject. I don't know whether he has any submissions. But
20 yes, I do, Your Honour, because the Chamber in our submission first of all
21 has to ascertain whether this interview is admissible against
22 Mr. Borovcanin. Secondly, the Chamber will then need to decide whether
23 it's admissible against -- if the answer to question one is yes, is it
24 admissible against the six other accused? If the answer to that is yes,
25 then I for one on behalf of General Gvero, would like to ask him some
1 general questions about one or two things that have occurred in the
2 interview and also the other material.
3 Now, let me make our position plain. Regrettable as it may seem,
4 we contend that that cannot be done until the Trial Chamber has ruled on
5 both of those difficult questions, and so this witness in our submission
6 will have to return to The Hague.
7 JUDGE AGIUS: Thank you, Mr. Josse. Mr. Lazarevic, would you like
8 to comment on Mr. Nicholls' --
9 MR. LAZAREVIC: Well, basically my position is exactly the same as
10 Mr. Josse and very finely pointed out. But there is one issue. I cannot
11 exclude the possibility that we might stipulate something with the
12 Prosecution. However, there are some problems because it seems that some
13 part of documents that were used during this interview are missing, I
14 don't know for what reason, and I would like to have further discussion
15 and then follow -- but I think this should follow the decision on the
16 admittance of the interviews.
17 JUDGE AGIUS: Okay. Thank you, Mr. Lazarevic. Anyone else?
18 None? Please let us confer.
19 [Trial Chamber confers]
20 JUDGE AGIUS: It didn't take us much to disagree with you,
21 Mr. Nicholls, and agree instead with Mr. Josse and Mr. Lazarevic. It's
22 obvious that everything is predicated on the first two decisions to be
23 taken, that is admissibility, first vis-a-vis Mr. Borovcanin, second
24 admissibility vis-a-vis the other accused, and it would seem unavoidable
25 that if the statement is admitted, questions will need to be asked on the
1 content, on the rest of the contents of the statement which are not
2 related to voluntariness.
3 So I think the return of Mr. Graham is unavoidable, and I think
4 he's only got to fly from Manchester to here so let's not make a mountain
5 out of a mole hill. Yes, Mr. Nicholls?
6 MR. NICHOLLS: I might have been overly optimistic on the speed of
7 your decision on the first issue. I didn't know how long it would take.
8 I can see Mr. Josse's points, but what I was referring to at least
9 regarding the first step, Mr. Borovcanin, that that might be something
10 that would -- that could be resolved. And then when we got to the second
11 step we could see if more questions were needed. That was my point.
12 JUDGE AGIUS: Does that change anything, Mr. Josse, Mr. Lazarevic,
13 or do you retain -- stick by your position? I don't think it does.
14 MR. JOSSE: I do.
15 JUDGE AGIUS: All right. So that's the position. Now, we have,
16 before we return to the courtroom during the break discussed a little bit
17 what's going to happen next. And our idea is that or our conviction is
18 that you would probably need to make submissions on what has -- on what
19 has happened yesterday and today. There are of course two options.
20 If you are prepared to make oral submissions today, we would then
21 ask you to stand up and do so. But we understand that this could reach
22 you as a surprise because there was no indication that we would finish so
23 early today. So the other possibility is that you may wish to make your
24 submissions in writing, in which case, of course, you would find us
25 accepting that.
1 So there is the Prosecution, I suppose, Mr. Lazarevic, Mr. Meek,
2 that are mostly interested, but I'm not excluding by any means any of the
3 other Defence teams if in spite of not having cross-examined the witness
4 they wish to make submissions.
5 Mr. McCloskey?
6 MR. McCLOSKEY: Perhaps this is a creature of old habit, but this
7 is a simple issue. There is no major complicated law. I would like for
8 to us argue it and Defence to argue it today and have it done with and
9 perhaps you can deliberate on it while Mr. Graham is still here.
10 JUDGE AGIUS: Thank you, Mr. McCloskey. Mr. Lazarevic, first.
11 MR. LAZAREVIC: Your Honours, can I have five minutes? Maybe all
12 of the counsel because it's not related only to myself, but if we could
13 have 10 to 15 minutes to discuss this issue with our clients?
14 JUDGE AGIUS: Certainly, Mr. Meek, that applies -- Mr. Lazarevic.
15 That applies to you, Mr. Meek, and to any other Defence counsel that
16 wishes to participate in these. For the time being keep him here so that
17 we decide whether we are going to have oral submissions today or written
18 submissions later. Yes, Mr. Nicholls?
19 MR. NICHOLLS: One other option, Your Honour, I would prefer --
20 I'm ready. I'd prefer to do oral submissions. If we can just do them now
21 if everybody else is ready, or if not I would rather just do oral
22 submissions tomorrow rather than do this in writing because as
23 Mr. McCloskey says I think it's pretty simple, and we can probably do it
24 quite quickly. Whether it's today or tomorrow.
25 JUDGE AGIUS: Okay. Thank you, Mr. Nicholls. We'll have ten
1 minutes will suffice, Mr. Lazarevic?
2 MR. LAZAREVIC: I hope so.
3 JUDGE AGIUS: Thank you.
4 --- Break taken at 5.07 p.m.
5 --- On resuming at 5.24 p.m.
6 JUDGE AGIUS: Yes, Mr. Nicholls?
7 MR. NICHOLLS: Thank you, Your Honours. Subject of course to
8 Your Honours' decision, during the break we've talked and the parties
9 agree that it would be preferable to just make arguments tomorrow. That's
10 what everybody would like to do, if that's possible.
11 [Trial Chamber confers]
12 JUDGE AGIUS: Number 1, all this is premised on our releasing the
13 witness, first and foremost, agreed? I hear nothing against. All right.
14 Number 2, who wishes to make oral submissions tomorrow? Let's
15 start from you, Mr. Nicholls. Will you be making some oral submissions?
16 MR. NICHOLLS: Yes, Your Honour.
17 JUDGE AGIUS: For how long? How much time do you think you
19 MR. NICHOLLS: I'll be probably 20 minutes or less, 20 minutes
21 JUDGE AGIUS: 20 minutes. Okay. Mr. Lazarevic?
22 MR. LAZAREVIC: Well, yes, I will make an oral submission, and I
23 believe that 35 maybe minutes would be a sufficient --
24 JUDGE AGIUS: Mr. Meek?
25 MR. MEEK: Yes, Mr. President, I will make submissions, and I
1 would say 20, 25 minutes at the most.
2 JUDGE AGIUS: Madam Fauveau?
3 MS. FAUVEAU: [Interpretation] No, Mr. President. We will not make
4 any submissions.
5 JUDGE AGIUS: Okay. Anyone else thinks they would make
6 submissions, you would make submissions? No. So we are talking of one
7 hour and 20 minutes. We will reduce that to one hour and please arrange
8 amongst yourselves how you distribute the time.
9 Mr. Lazarevic, being the promoter of the whole matter, will go
10 first. Mr. Meek, you will go second. Mr. Nicholls, you will go third.
11 You should allow yourselves, then, some time for a reply, a response, if
12 there is a need for them, but all this needs to be completed in one hour.
13 We will sit tomorrow from 3.30 to 4.30. All right? Thank you.
14 Any further submissions on anything else?
15 MR. JOSSE: Could I just confirm, and that will conclude the
16 sittings this side of the recess; is that right, Your Honour?
17 JUDGE AGIUS: Yes, you are correct. Of course, between today and
18 Friday, we will be working intensively on some outstanding motions
19 including the joinder motion, which hopefully will be concluded and handed
20 down tomorrow.
21 MR. JOSSE: In writing, presumably, Your Honour.
22 JUDGE AGIUS: Yes, of course.
23 MR. JOSSE: Thank you.
24 MR. NICHOLLS: Just, Your Honours, just to be clear, I take it we
25 can now talk to Mr. --
1 JUDGE AGIUS: You're starting to make me suspect that I am not
2 clear at all.
3 MR. NICHOLLS: This is a new issue. You've been very clear. I
4 just take it that now the OTP can speak with Mr. Graham again because this
5 issue is done. Just on the topic of -- now the substance, meaning these
6 various exhibits that we would -- that we -- if there is no stipulation
7 that we will try to put in with him and that type of thing.
8 JUDGE AGIUS: I wouldn't pre-empt issues, because whether
9 Mr. Graham will return to testify again depends on whether the
10 Borovcanin -- alleged Borovcanin statement will be admitted in evidence
11 vis-a-vis Mr. Borovcanin and/or vis-a-vis the six other accused. If it's
12 not admitted, there won't be any need for you to speak to Mr. Graham any
13 further on the Borovcanin statement.
14 MR. NICHOLLS: Yes. I understand that, Your Honour, but --
15 [Trial Chamber confers]
16 MR. NICHOLLS: It's just that normally we speak to the witness
17 before he leaves, Your Honour. He's going back and --
18 JUDGE AGIUS: That's another matter. [Microphone not activated]
19 Is there any opposition from any of the Defence teams, Mr. Lazarevic?
20 MR. LAZAREVIC: No, Your Honour by all means. I trust my
21 colleagues from the Prosecution that they will not --
22 JUDGE AGIUS: I thank you for being pragmatic and constructive,
23 Mr. Lazarevic. So I think that concludes. Later on in the week you
24 should expect two or three decisions, if not four, and then we will
25 adjourn until August the 21st, not the 20th.
1 Thank you.
2 --- Whereupon the hearing adjourned at 5.33 p.m.,
3 to be reconvened on Thursday, the 19th day of July,
4 2007, at 3.30 p.m.