1 TTuesday, 24th September 1996.
2 (Closed Session)
13 Pages 6137-6142 in closed session.
Tuesday 24th September 1996
1 (Open Session)
2 (10.30 a.m.)
3 THE PRESIDING JUDGE: Mr. Niemann, on I guess it was 20th, last
4 Friday, we had directed the parties to present oral arguments on
5 the issue of whether or not the statements of witnesses taken by
6 the Defence may be produced for use by the Prosecutor on
7 cross-examination of the witness once the witness testifies. At
8 that time the Defence indicated they needed additional time.
9 We have received the material submitted by the Defence
10 yesterday and we have received the material submitted by the
11 Prosecutor on Friday. Without suggesting what the burden might
12 be with respect to this issue, Mr. Niemann, would you proceed
13 first, please?
14 MR. NIEMANN: Yes, your Honour. Your Honour, I have prepared an
15 outline of argument which may assist the Chamber while I go
16 through this argument. I hand up a copy of that. There are
17 four copies. The Defence have been provided with a copy of the
18 outline, your Honour.
19 THE PRESIDING JUDGE: I am sure your argument will be so orderly that
20 we do not need it, but if you say it will help, we will look at
21 it. We will not hold you, I suppose, to it.
22 MR. NIEMANN: Your Honours, the issue, it seems to us, for
23 determination here is during the course of the trial and after
24 the witness has testified in chief, can a cross-examining party
25 call for the production of a previous relevant statement of the
26 witness in possession of either the witness, the accused or the
27 opposing party and does the Tribunal have the power to order the
28 production of the relevant statement?
1 Your Honours, I start with looking at Rule 54, a much
2 quoted provision in the Rules, but in respect of this matter it
3 is, in fact, quite specific. It provides, your Honours, that at
4 the request of either party (and I am paraphrasing here) the
5 Trial Chamber may issue such orders as may be necessary for the
6 conduct of the trial. It goes on to refer to other matters,
7 including subpoenas. Your Honours, in our submission, this
8 provision, certainly in terms of giving the Chamber power, is
9 very broad and would cover the situation with respect to the
10 question in issue in this motion.
11 In addition to that, your Honours, there is also Rule
12 98 which is additional to Rule 54, in our submission, and it
13 provides that a Trial Chamber may order either party to produce
14 additional evidence, and it may itself summons witnesses and
15 order their attendance. In our submission, the reference to the
16 word "evidence" in Rule 98 is wide enough to include matters
17 which may be prior witness statements and which may be used to
18 impeach the witness. So, it is our submission that there are at
19 least two provisions available to the Chamber when it looks to
20 what power it has to make the order that is requested by the
21 Prosecution in this case.
22 In determining the approach to be taken by the Chamber
23 in resolution of any issue, it is our submission that, as a
24 matter of general principle, the approach that the Chamber
25 should take is one which favours the best fair determination of
26 the matter consonant with the spirit of the Statute and general
27 principles of law.
28 Your Honours, this principle is reflected at least in
1 one place in the Rules. It seems to us that it would not need
2 to be so reflected as it is a general principle and should apply
3 in any event, but one can see it reflected in Rule 89(B) where
4 it says and it provides, "In cases not otherwise provided for in
5 this Section, a Chamber shall apply rules of evidence which will
6 best favour a fair determination of the matter before it and are
7 consonant with the spirit of the Statute and the general
8 principles of law".
9 We would, your Honours, urge you to approach this
10 issue in a similar fashion with respect to this issue.
11 Your Honours, the Rules themselves do not, in our
12 submission, support the proposition that witness statements
13 obtained by an accused or his or her counsel or on their behalf
14 by third parties are for all purposes and at all times protected
15 from production, whether it be on the basis of lawyer-client
16 privilege or otherwise.
17 In our submission, on the contrary, the Rules support
18 the proposition that once it is determined that the evidence
19 will be used at trial, then any restriction that may otherwise
20 apply will be waived.
21 Dealing with the question of pretrial discovery, we
22 see in Rule 67(C) a reference to the Defence being required to
23 make available to the Prosecutor for the Prosecutor's inspection
24 "any books, documents, photographs and tangible objects which
25 are within the custody and control of the Defence and which it
26 intends to use as evidence at the trial".
27 In our submission, the words "intends to use as
28 evidence at the trial" is the factor for consideration here. If
1 there is to be a principle of legal professional privilege
2 applicable as such, then that may well apply up until the time
3 when a decision is made to use the material at trial.
4 It may be said, well, of course, this provision is not
5 triggered unless a similar request is made by the Defence under
6 Rule 66(B) of the Rules, and that is a Rule which provides a
7 general inspection by the Defence of material in possession of
8 the Prosecution. In our submission, your Honours, Rule 66(B)
9 trigger, if I can call it that, has nothing to do with the issue
10 of legal professional privilege at all. It merely goes to the
11 question, if such a request for an inspection is made by the
12 Defence upon the Prosecution, then an equal right of inspection
13 is available to the Prosecution of Defence material.
14 So the point I wish to make by this is that if there
15 was a right of inspection by the Prosecution, the limitation
16 upon the Prosecutor's right of inspection is the limitation
17 imposed by the reference to the intention to use it at trial.
18 So once that intention is made, it is our submission that any
19 privileges that might otherwise attach are not contemplated to
20 obstruct the application of this provision to the right of the
21 Prosecutor to inspect.
22 It may be that the Defence could still raise some
23 objection based on privilege and that matter could be litigated
24 as such, but it is not contemplated that that will happen
25 because, in our submission, there is an assumption that once you
26 either determine that you are going to use the matter at trial
27 or, alternatively, you elect to call the witness and, therefore,
28 present the evidence at the trial, there is, in effect, a waiver
1 of any privileges that might otherwise have attached.
2 Your Honours, Rule 70(A) is a provision in the Rules
3 which deals with what is commonly known as work-product. It
4 provides that, "Notwithstanding the provisions of Rules 66 and
5 67", so at the outset it does make itself exceptional to 66 and
6 67, in other words, 66 and 67 do not apply to "reports,
7 memoranda, or other internal documents prepared by a party, its
8 assistants or representatives in connection with the
9 investigation or preparation of the case, are not subject to
11 In our submission, your Honours, this provision goes
12 to what is referred to as "internal documents", so where it
13 says, "reports, memoranda, or other internal documents", it is
14 all reports and memoranda which are internal to the party. That
15 is why I say that there may be a privilege that operates up
16 until the time that you elect to either call the witness or
17 you make a decision that we are going to rely on this material
18 for the purposes of trial. It then ceases to be internal. The
19 word "internal", in my submission, relates to the situation
20 prior to the decision is made or prior to the calling of the
22 THE PRESIDING JUDGE: But, I gather, Mr. Niemann -- excuse me, if
23 I may ask you just one question -- according to your position,
24 Rule 70(A) would not include a privilege on the part of the
25 Defence to withhold witness statements once the witness
27 MR. NIEMANN: Yes.
28 THE PRESIDING JUDGE: Does it include or does it protect the right,
1 that is 70(A), to withhold witness statements at the discovery
2 stage, pretrial?
3 MR. NIEMANN: No, it does not if a determination is made at that
4 stage that the witness statement or the evidence will be used at
5 trial because, in my submission, that is the effect of Rule
7 THE PRESIDING JUDGE: 67(C) is the reciprocal discovery provision.
8 In other words, if the Defence asks for material under 66(B),
9 then that triggers 67(C) which would require it to provide
10 reciprocal discovery. But you are saying that Rule 70(A) which
11 talks about the protection of internal memoranda etc., does not
12 act as a privilege against disclosure of statements by either
13 party, because Rule 70(A) says, "Notwithstanding the provisions
14 of Rule 66" which governs the Prosecution's right to provide
15 discovery ----
16 MR. NIEMANN: Yes.
17 THE PRESIDING JUDGE: --- or obligation to provide discovery to the
18 Defence. So it says, "Notwithstanding Rule 66 and
19 notwithstanding Rule 67", and 67(C) is the obligation on the
20 part of the Defence to provide reciprocal discovery, it then
21 goes on to say that notwithstanding the obligations under these
22 Rules, you are not required to provide internal memoranda, etc."
23 MR. NIEMANN: That is right.
24 THE PRESIDING JUDGE: You are saying then that 70(A) excludes
26 MR. NIEMANN: Yes, in this very limited circumstance. It would at
27 least in certain ----
28 THE PRESIDING JUDGE: Because it would violate 66(A) because in
1 66(A) the Prosecutor has to give statements, and then in 70(A)
2 it says, notwithstanding 66 and 67, you do not have to give
3 internal memoranda. So, if it relates to statements, what does
4 70(A) do to 66(A)? It knocks it right out?
5 MR. NIEMANN: Yes. It may be that the wording of 66(A) is broader,
6 but 66(A) deals with material that the Prosecutor relied upon in
7 order to found the indictment. There is an assumption on that
8 basis. I am trying ----
9 THE PRESIDING JUDGE: It includes the obligation to provide
11 MR. NIEMANN: Oh, yes.
12 THE PRESIDING JUDGE: And you cannot rely on Rule 70(A) by saying
13 that it is privileged?
14 MR. NIEMANN: We can in circumstances where it is not intended to use
15 the material as evidence in the proceedings. It is the
16 intention to use it as evidence, in our submission ----
17 THE PRESIDING JUDGE: Then it is no longer protected from pretrial
19 MR. NIEMANN: Yes. It may be, your Honours, that Rule 70(A) could be
20 interpreted wider than the way I have by reference to memoranda
21 or other internal documents does not include statements itself.
22 I mean, that is another interpretation. I was specifically
23 dealing with it in terms of, if there is a privilege that
24 attaches to statements by the Defence, that those documents lose
25 that privilege in the event of an intention to call the witness
26 to give evidence or, alternatively, to decide to use that
27 evidence in the proceedings. It may be, your Honours, that one
28 could interpret Rule 70 as being much narrower and excluding
1 statements as such.
2 THE PRESIDING JUDGE: You recognise then, though, that the Defence
3 has no obligation to provide witness statements to the
4 Prosecution pretrial, unless the reciprocal discovery provisions
5 in 67(C) become applicable, is that not so?
6 MR. NIEMANN: It may be in terms of rights, the Prosecution has no
7 rights, unless it triggers the Rule 66(C). That does not
8 prevent the Prosecution from submitting that statements of
9 witnesses that are intended to be used during the course of the
10 proceedings by the Defence should, for the efficient conduct of
11 the proceedings and the Chamber, be made available. That is
12 another matter.
13 The right as such would seem to be triggered by an
14 application by the Defence under Rule 66(B) and that would then
15 flow to Rule 67(C). That is why I say that under Rule 67(C)
16 statements are available. If there is any limitation or any
17 ability by the Defence to prevent the Prosecution from having
18 those statements, it would be based on an argument that they are
19 internal and it is not intended to use them for the purposes of
20 evidence in the proceedings.
21 There is a variation in jurisdictions on this matter,
22 but there seems to be very solid law in some jurisdictions which
23 say the Defence should be free to go and obtain statements from
24 a wide range of people, and then at a subsequent stage elect
25 which of those statements or which of those witnesses they
26 intend to call as part of their Defence. It only becomes
27 available, in our submission, for inspection once that election
28 is made, unless of course there is some other overriding
1 principle, such as malafides or something which I am not
2 addressing here. I am just talking about the decision of the
3 attorney for the accused going out and exploring all the
4 possibilities in order for him or her to determine what sort of
5 defence to provide.
6 THE PRESIDING JUDGE: So the obligation then on the part of the
7 Defence to provide witness statements of its witnesses, pretrial
8 then, is founded in Rule 67(C) ----
9 MR. NIEMANN: Yes.
10 THE PRESIDING JUDGE: --- which would require then that reciprocal
11 discovery provision come into being, that is, that the Defence
12 have asked for discovery under 66(B), and there would be no
13 privilege at that time protecting the Defence from giving
14 statements, if it invoked the reciprocal discovery
15 provision ----
16 MR. NIEMANN: Yes.
17 THE PRESIDING JUDGE: --- unless you were to interpret Rule 70(A) as
18 protecting witness statements.
19 MR. NIEMANN: And, in my submission, there is no basis to interpret
20 that because of the word "internal" that appears there.
21 THE PRESIDING JUDGE: But we are beyond that now.
22 MR. NIEMANN: Yes.
23 THE PRESIDING JUDGE: We are beyond pretrial.
24 MR. NIEMANN: Yes. I refer to this merely to illustrate that a
25 general proposition that statements taken by an accused or his
26 counsel of witnesses have this sort of general blanket
27 protection which prevents them from ever being disclosed.
28 Your Honours, in our submission the full ambit of
1 legal provisional privilege, or lawyer-client privilege, is
2 contained in both Rule 70(A) and Rule 97 of the Rules. Rule 97
3 specifically deals with lawyer-client privilege. It provides:
4 "All communications between lawyer and client", and only lawyer
5 and client, "shall be regarded as privileged, and consequently
6 not subject to disclosure at trial, unless the client consents
7 to such disclosure; or", interestingly, "the client has
8 voluntarily disclosed the content of the communication to a
9 third party, and that party then gives evidence of that
11 I am not calling that in aid to say that it
12 specifically applies here, but the principle applies here. The
13 principle is that if you have a right to privilege, then that
14 right can be waived and one of the ways in which it is waived
15 can be the person giving evidence. In my submission, that is
16 what happens when a Defence witness comes before the Chamber and
17 gives evidence, then if any privilege did attach up until that
18 time, the moment they give evidence in the witness box, then any
19 privilege that may have attached to a statement that that
20 witness gave in the preparatory stage of the Defence case is
22 It is our submission, your Honours, that when it comes
23 to determining what is the ambit of lawyer-client privilege,
24 legal professional privilege, one should look to these specific
25 Rules of the Rules of Procedure and Evidence of the Tribunal in
26 order to make a determination of what applies.
27 There is reference, your Honours, to the Defence to
28 the right to silence. I will expand that more later in my
1 submissions, but it is our submission that the right to silence
2 is exclusive to the accused and it does not apply to
3 circumstances where a witness is a third party testifying before
4 the Chamber.
5 Your Honours, under international law and, in
6 particular, in reference to the UN Convention on Civil and
7 Political Rights, the principle of a fair trial is the dominant
8 principle. It is, and I am quoting, referring here, your
9 Honours, to the CCPR, the Civil and Political Rights Commentary
10 on that Covenant which we will make available to your Honours.
11 I do not have a copy of it just at the moment -- yes, it has
12 been made available to your Honours. I am sorry. The reference
13 I am referring to, your Honours, is at page 246 of the
14 Commentary which your Honours have.
15 JUDGE STEPHEN: Is this the work by Harris O'Boyle and Warbrick?
16 MR. NIEMANN: No, your Honour. It is an N.P. Engel, Publisher, Kehl,
17 Strasbourg. It is a document that should look like that. It
18 was just provided to your Honours.
19 JUDGE STEPHEN: Thank you. What page?
20 MR. NIEMANN: Page 246, your Honour, paragraph 19. Your Honours,
21 paragraph 19 refers to Article 14(1). Your Honours may recall
22 that Article 14(1) is in terms similar to the provisions in our
24 THE PRESIDING JUDGE: It is 21(A).
25 MR. NIEMANN: 21, yes, your Honour.
26 THE PRESIDING JUDGE: (A), I think.
27 MR. NIEMANN: It contains similar guarantees. It is not word for
28 word the same, but it is in general similar. In paragraph 19
1 there the learned author says: "This principle is at the centre
2 of the civil and criminal procedural guarantee and, with respect
3 to criminal jurisdiction, is specified by a number of concrete
4 rights in Articles 14 and 15. The right to a fair trial is,
5 however, broader than the sum of these individual rights."
6 Then it goes on in paragraph 20: "The most important
7 criterion of a fair trial is the principle of 'equality of arms'
8 between the plaintiff and respondent or the prosecutor and
10 Further on down in the same paragraph, five lines
11 down, the next sentence: "In addition, procedural rights, such
12 as inspection of records or submission of evidence, must be
13 dealt with in a manner equal for both parties".
14 Your Honours, in our submission, when dealing with
15 this question as a general principle, there is absolutely no
16 doubt that if the Prosecution called a witness and had a
17 statement that that witness had given to the Prosecution at an
18 earlier stage and the Prosecution had not disclosed it -- it has
19 an obligation to disclose it, but I am premising this on the
20 basis that it had not disclosed it -- your Honours would feel,
21 I am sure, constrained to order the Prosecution to make that
22 available to the Defence to permit cross-examination.
23 In our submission, if that were the approach to be
24 taken with the Prosecution witness, then in dealing with the
25 principles of international law and the equality of arms, and
26 bearing in mind that the reference here to equality of arms is
27 the equality between the Prosecutor and the defendant, then what
28 applies to the Prosecution with respect to inspection and access
1 to information, when it comes to a general principle, should
2 apply equally to the Prosecution as it applies to the Defence.
3 THE PRESIDING JUDGE: But now these cases come from civil law systems
4 and there is reference to a proceeding under Federal Bankruptcy
5 Law. I think that the Defence has given us two cases or
6 reference to cases that deal with that. In civil law system, of
7 course, we would not be having this discussion because the
8 investigating Judge or Magistrate -- I should ask Mr. Marro to
9 help me out with the terminology -- but in any case that person
10 would investigate and that person would gather all of the
11 statements of witnesses for the Defence, witnesses for the
12 Prosecution, the Prosecution gets a packet with all of the
13 witnesses statements and other material and the Defence does
14 too. So, clearly, there should be this equality of arms under
15 the civil law system. Each side would have statements of
16 witnesses of the other side.
17 Our Rules try to incorporate both civil and common law
18 notions, but at least, as they relate to pretrial discovery, it
19 appears that they are more adversarial in nature and more akin
20 to common law, and that until you get to the reciprocal
21 obligation under 67(C) the Defence would not have that
22 obligation to produce.
23 So what I am saying is, yes, that principle does apply
24 and in civil law systems everything would be on the table. But
25 that is not where we are. So, how does that apply in our Rules,
26 since we are not bound by national systems, how does that
27 apply? How does that fit in our Rules?
28 MR. NIEMANN: Your Honours, the Covenant reference that I am
1 referring to is the United Nations Covenant so it is not limited
2 to the European situation alone, although the foundation for it
3 may be reference to civil law cases. But we would argue that
4 the provision at civil law does not assist much in the
5 determination of this question because of the very matter that
6 your Honours have referred to. But, in terms of dealing with
7 the question of these principles under international law, the
8 principle of equality of arms is the most important criteria to
9 be applied. In our submission, that makes no difference,
10 whether it be a procedure under the Rules of this Tribunal or
11 under civil law or generally because this is the approach that
12 we would urge your Honours to take, having regard to the fact
13 that this is an international jurisdiction.
14 Whilst the specific Rules of the Tribunal may reflect
15 an adversarial system, and in respect of those Rules, of course,
16 all the parties are bound by the letter of those provisions, but
17 we are dealing here, in our submission, with something that is
18 not expressly stipulated. When it comes to a resolution of an
19 issue which is not expressly stipulated, we would urge your
20 Honours to have regard to the international law applicable in
21 this area and the principle of international law which is said
22 by the learned author of this commentary to be the dominant
23 principle as that of equality of arms.
24 So the point I was making was in the absence of any
25 specific Rules, which there are no specific rules dealing with
26 the very question that now confronts your Honours, we would
27 argue that the approach to be adopted is the approach that would
28 be applied in international law.
1 Your Honours, going on in the little handout that has
2 been given to your Honours, there is a reference in paragraph 52
3 in the middle of the paragraph when dealing with the calling and
4 examining of witnesses in a similar vein. There is a reference
5 there about 10 lines from the top: "The final version, adopted
6 in 1952 on the basis of a British initiative by a vote" -- it
7 refers to how it came into position -- "corresponds to the
8 language of Article 6(3)", and then the important part that
9 I refer your Honours to is this, it says: "As a result, the
10 right of the accused to obtain the attendance and examination of
11 witnesses on his behalf is subject to the restriction that this
12 be 'under the same conditions as witnesses against him'.
13 Criminal courts are thus provided with relatively broad
14 discretion, but in summoning witnesses, they must not violate
15 the principles of fairness and 'equality of arms'." Again it
16 brings, if your Honours please, to this question of what is good
17 for one party is good for another.
18 Again, going over the page in the last sentence in
19 paragraph 53 there is a reference there: "Of principal
20 importance here is that the parties are treated equally with
21 respect to the introduction of evidence by way of interrogation
22 of witnesses".
23 I make reference to these matters to reinforce the
24 submission in our submission, that the approach that we would
25 urge your Honours to take is what would you do to the
26 Prosecution in the event of this issue arising? If you would
27 say, "Well, the Prosecutor must produce the prior statement to
28 permit cross-examination", then, in our submission, that is the
1 approach that you should take with the Defence.
2 I touched a moment ago, your Honours, on the question
3 of self-incrimination because I believe it may also be an issue
4 which is expanded upon by the Defence in their submissions.
5 While I have this handout before your Honours, I will refer you
6 to it. It is dealt with specifically on page 264, the final
7 page there. In paragraph 59 the learned author states: "The
8 prohibition of self-incrimination has its roots in English
9 common law and today generally belongs to the essence of a fair
10 trial, such that it must also be viewed as being covered by
11 Article 6 of the European Convention. It relates only to the
12 accused. Witnesses, on the other hand, may not refuse to
13 testify". I immediately note that there is a provision
14 specifically dealing with witnesses in our Rules. "The term 'to
15 be compelled' refers to various forms of direct or indirect
16 physical or psychological pressure, ranging from torture and
17 inhuman treatment prohibited by Articles 7 and 10 to various
18 methods of extortion or duress" and so forth. Your Honours ----
19 THE PRESIDING JUDGE: That is just because to be free from
20 self-incrimination is a personal right that goes to the accused.
21 The right to be free from self-incrimination is a personal right
22 that goes to the accused.
23 MR. NIEMANN: Yes, and the point that we make, your Honours, is that
24 it is limited to the accused. It is not something that can be
25 expanded, as it were, in an umbrella fashion to everything that
26 the Defence do on their side of the courtroom. So, in our
27 submission, if a claim is raised that the accused does not have
28 to produce these documents based on that principle, then we say,
1 well, that does not apply to a witness who is called in the
3 Your Honours, the doctrine of legal, professional
4 privilege has many features in common in the various
5 jurisdictions and the various common law jurisdictions. There
6 are some variations between the common law jurisdictions -- I am
7 dealing specifically with them at the moment -- but, by and
8 large, these variations are more cosmetic than substantive. For
9 example, your Honours, in the United States there is a division
10 between the work-product doctrine, lawyers' work-product
11 doctrine, and the lawyer and client privilege. They seem to
12 have been separated. This, in other jurisdictions, has tended
13 to be wrapped up in the one doctrine. So, although the
14 principles that apply are, essentially, the same, in the United
15 States they have been divided, whereas in other jurisdictions,
16 such as in the United Kingdom and in Australia, for example,
17 they are rolled up into one principle.
18 THE PRESIDING JUDGE: That is not the way I read Australian
19 Evidence -- it is entitled "Adversary restrictions upon access
20 to information". On 209 it says -- this is from Australia
21 -- "It appears, therefore, that at common law the notion of
22 legal professional-privilege embraces two privileges, a
23 communications privilege, and a litigation privilege. It is
24 important that these two privileges be kept distinct, for they
25 each proceed from quite distinct and separate rationales, and
26 I would suggest that much of the confusion that currently exists
27 in this area is the consequence of not recognising that legal
28 professional privilege embraces not one privilege but two. The
1 difficulty in keeping the privileges distinct is compounded by
2 the fact that they overlap where communications are made for the
3 purpose of advice about litigation."
4 Then there are several pages of discussion of the
5 lawyer-client communications. That is on page 209. Then you get
6 to page 216 where the author on Australian Evidence begins to
7 discuss the second privilege which he calls "Material collected
8 for litigation". He says: "This separate privilege is
9 recognised in a number of recent Australian decisions. It
10 exists to encourage the pursuit of adversary litigation, and is
11 consequently unique to common law jurisdictions." Then on the
12 next page, 217, he says: "In consequence, the litigation
13 privilege is quite narrow. It extends to communications brought
14 into existence at the instigation of client or lawyer to pursue
15 litigation (for example, statements taken from witnesses), and
16 to any other work-product of the lawyer".
17 So it appears to me and also in Cross & Tapper, at
18 least the 8th edition that we received from the Defence -- I do
19 not have it readily to hand -- it also says that there are two
20 privileges; the first one, a lawyer-client and then the
21 litigation privilege. So statements, at least if you rely on
22 these three decisions, would fall in the second privilege, that
23 is, materials collected for litigation, as opposed to the first
24 privilege which is the lawyer-client privilege which is
25 expressed in our Rule, Rule 97. It is right in there.
26 MR. NIEMANN: Your Honour is quite right. There is certainly the
27 legal professional privilege, as it is understood in Australia
28 and England. It encompasses both privileges. The point I was
1 really making is that often it is sort of wrapped up and dealt
2 with as one doctrine, but certainly there is no question that
3 both privileges operate, but it is a question of how you treat
5 The only point I was making was that my interpretation
6 of the law of the United States was that it seemed to separate
7 them much more succinctly than the law of England or Australia.
8 That is the only point I am making, but I do not for one minute
9 quarrel with what your Honour has said. There is no question
10 that there are two issues and can be easily treated as two
11 separate privileges. In fact, your Honours, in a case that
12 I think has been provided to your Honours of Baker v. Campbell,
13 which is a decision of the High Court of Australia, 153
14 Commonwealth Law Reports, page 52 -- regrettably, I only have a
15 copy extracted from the Lexis -- at page 88 of that -- it has
16 not been provided?
17 JUDGE STEPHEN: No. I would be very interested to see what
18 Mr. Justice Murphy says.
19 THE PRESIDING JUDGE: We do have the decision, though, that Judge
20 Stephen ----
21 MR. NIEMANN: Of Grant v. Downs?
22 THE PRESIDING JUDGE: --- wrote about.
23 MR. NIEMANN: I have one copy here but, if your Honour pleases, while
24 I go through it I will have it put on the overhead projector
25 which might assist in your Honours looking at it. Then I will
26 undertake to make a copy available to your Honours.
27 THE PRESIDING JUDGE: Could you arrange for copies to be made?
28 Perhaps, Miss Sutherland, could you arrange for copies to be
1 made or passed to one of our law clerks, and copies could be
2 made right now and then returned to us. Did you get a copy?
3 MR. WLADIMIROFF: No.
4 THE PRESIDING JUDGE: One for the Defence as well. Then we will all
5 read it while we listen. Excuse me. Go ahead, Mr. Niemann.
6 MR. NIEMANN: I might come back to Baker v. Campbell while it is
7 being copied. I will deal with what is said by the Court in
8 Grant v. Downs, which is the other Australian case that
9 I referred to, your Honours.
10 THE PRESIDING JUDGE: You had better be careful because Judge
11 Stephen, that is his case. That is the problem when you refer
12 to cases that we have written -- not me but Judge Stephen. Go
14 MR. NIEMANN: The situation, your Honours, with respect to the two
15 principles that I would refer to in Grant v. Downs is, firstly,
16 the reference to what are the relevant principles in examining
17 legal professional privilege. On page 682 of the decision, at
18 the top of the page, it says in the first paragraph: "What then
19 are the relevant principles of law governing the privilege which
20 attaches to communications and materials submitted by a client
21 to his solicitor for the purpose of advice or for the purpose of
22 use in existing or anticipated litigation, in particular when
23 the materials have been called into existence to serve more than
24 one purpose", which is not the position here.
25 It then goes on. I am making reference to this to
26 draw attention to the position of law in Australia which is also
27 developed in the Baker and Campbell case. There is a reference
28 then to Seabrook v. British Transport, their Honours Justices
1 Stephen, Mason and Murphy go on to say "contained a
2 comprehensive review of the decided cases, illustrating as it
3 does by reference to earlier judgments, that the essential
4 elements of this head of privilege (which embraces
5 communications and investigations made by the client as well as
6 communications and work undertaken by the legal adviser" -- just
7 stopping there for a moment, your Honours, you can see from that
8 the approach in Australia (and, I would submit, the same in
9 England) is often to roll the two together and deal with it that
10 way -- "whether for use in litigation or for advice have been
11 differently expressed from time to time. The difference is not
12 one of expression only because, as his Lordship observed, the
13 course of decision tended to keep the privilege within narrow
14 confines until 1913". There is a reference to a decision of the
15 Court of Appeal. "Thereafter, certainly until more recently,
16 the decisions gave greater emphasis to the claim for
17 privilege". Then the next sentence is of use: "It has been
18 accepted that documents brought into existence after an accident
19 pursuant to a standing instruction previously given may be
21 So this is, in my submission, the question of bringing
22 into existence documents which may include statements, certainly
23 as it seems to be treated by the law in Australia, could and
24 probably do have privilege attached to them right up until a
25 point when that privilege is waived. So if one is approaching
26 it from that point ----
27 JUDGE STEPHEN: But you are not suggesting that Grant v. Downs
28 assists you at all? The whole point of Grant v. Downs was
1 whether the document was brought into existence for the purpose
2 of litigation or whether it was part of a routine accident
3 investigation procedure.
4 MR. NIEMANN: Yes. I acknowledge, your Honour, that the facts of
5 that case are not helpful to the situation here.
6 JUDGE STEPHEN: No.
7 THE PRESIDING JUDGE: This is not a witness statement case. This was
8 a report. It was prepared by an institution, mental
9 institution, I believe, that was submitted to their lawyers.
10 The issue was whether or not that report was brought into
11 existence for the sole purpose of litigation. Judge Stephen
12 says that is what it has to be, the sole purpose, and finds that
13 there are other purposes. So this would be, it appears,
14 protected by the first privilege, the privilege that exists
15 between lawyer and client, because that was their client. That
16 report went to the lawyer.
17 So the question then is even whether it is privileged,
18 but if they find it is privileged it is because it fits in the
19 first category. Communications between lawyers and clients are
20 pretty sacrosanct.
21 MR. NIEMANN: Yes, and they are dealt with specifically under our
22 Rules under a different heading.
23 THE PRESIDING JUDGE: They are under 97. Judge Stephen narrows it
24 from the British rule saying -- I do not know, Judge Stephen is
25 better to tell me what he intended -- he narrows it, and then he
26 says, though, in explaining why, "... The existence of the
27 privilege reflects to the extent to which it is accorded the
28 paramountcy of this public interest over a mere general public
1 interest, which requires that in the interest of a fair trial
2 litigation should be conducted on the footing that all relevant
3 documentary evidence is available". He says that we are
4 restricted in Australia to the sole purpose of balancing that,
5 that public interest. So I too do not see how it really relates
6 to this issue, but it is another judgment for us to read which
7 we did.
8 MR. NIEMANN: The specific facts of the case do not assist, but
9 I would argue it assists in reaching understanding if one is to
10 canvass the law of the various jurisdictions. It assists in
11 some understanding of that law.
12 JUDGE STEPHEN: But, I am sorry, it assists only in showing that
13 legal professional privilege does apply to witness statements
14 which are produced solely for the purpose of litigation.
15 MR. NIEMANN: Yes.
16 JUDGE STEPHEN: Yes, so that it goes directly against you to that
17 extent, if you regard it as applicable at all.
18 MR. NIEMANN: It does but ----
19 JUDGE STEPHEN: Unless there is waiver.
20 MR. NIEMANN: --- unless there is waiver.
21 JUDGE STEPHEN: And you say there is waiver when the witness gives
23 MR. NIEMANN: Yes. In our submission, that is the moment or, under
24 our Rules, it in fact can occur earlier, that is, once a
25 decision is made to use this evidence in the proceedings, then
26 the waiver ----
27 JUDGE STEPHEN: It is certainly authority to that effect that I would
28 be very interested to see.
1 THE PRESIDING JUDGE: Was it a witness statement or does it sound
2 like something that is in 70(A) of our Rules, that is, a report,
3 memoranda, or other internal documents? It may not be critical
4 to your position. I just wanted to understand your position.
5 MR. NIEMANN: Your Honours, the ----
6 THE PRESIDING JUDGE: Because, as I understand it, it was the client
7 who prepared this report.
8 MR. NIEMANN: In Grant v. Downs?
9 THE PRESIDING JUDGE: Is that right? Was it a client, Judge
11 JUDGE STEPHEN: My recollection of it is confined entirely to reading
12 this almost illegible copy that I have. I certainly do not
13 recall it.
14 THE PRESIDING JUDGE: I thought it was a mental institution; it was a
15 patient who escaped and was discovered, incurred bronchial
16 pneumonia or something and the mental institution, a client,
17 prepares a report and gives it to his lawyer.
18 JUDGE STEPHEN: Yes.
19 MR. NIEMANN: I do not put it any higher, your Honours, than simply
20 it may assist the Chamber to have an understanding of how the
21 law has been interpreted in that jurisdiction. I am in the
22 process of going through the various jurisdictions.
23 Your Honours, one of the matters that I would submit
24 is appropriate for consideration in this issue is this process
25 of calling for documents and whether, as it is understood in the
26 law of England, the United Kingdom and Australia, whether there
27 is provision or a practice which permits the calling for
28 documents in the course of the trial. In our submission, there
1 are numerous references that one can go to in relation to this
3 Again, in the extracts of the Australian Evidence book
4 by Ligertwood in paragraph 5.35 at page 227, which I again trust
5 your Honours have been given that page?
6 THE PRESIDING JUDGE: I suppose, I was going to ask you, you referred
7 to the commentaries, Blackstone, Cross on Evidence, I do not
8 know whether you were referring to the 7th or 8th edition, but
9 we now have the 8th edition, thanks to the Defence, but in any
10 case you referred to Blackstone, Cross and is it Ligertwood?
11 MR. NIEMANN: Ligertwood.
12 THE PRESIDING JUDGE: But you also give us the Evidence Act from the
13 criminal law of South Australia, is it section 29?
14 MR. NIEMANN: Section 29.
15 THE PRESIDING JUDGE: Which says that, "A witness may be
16 cross-examined as to previous statements made by him in writing,
17 or reduced into writing, relative to the subject matter of the
18 cause, without the writing being shown to him; but if it is
19 intended to contradict the witness by the writing, his attention
20 must, before such contradictory proof can be given, be called to
21 those parts of the writing which are to be used for the purpose
22 of so contradicting him: provided always, that the judge, at
23 any time during the trial, may require the production of the
24 writing for his inspection; and may thereupon make such use of
25 it, for the purposes of the trial, as he thinks fit". That is
26 from South Australia.
27 Then you give us a case from Canada, Peruta, is it,
28 which seems to have the same rule, section 10, if I am correct,
1 of their rules, of the Canada Evidence Act, that says: "On any
2 trial a witness may be cross-examined as to previous statements
3 made by him in writing, or reduced to writing, relative to the
4 subject matter of the case, without the writing being shown to
5 him, but, if it is intended to contradict the witness by the
6 writing, his attention must, before the contradictory proof can
7 be given, be called to those parts of the writing that are to be
8 used for the purpose of so contradicting him, and the judge, at
9 any time during the trial, may require the production of the
10 writing for his inspection, and thereupon make such use of it
11 for the purposes of the trial as he thinks fit".
12 Those rules of evidence seem very similar to me, if
13 not identical. But we do not have any interpretation of those
14 rules, at least I did not receive any, other than the Peruta
15 case, which I do not see in your outline. Are you going to tell
16 us how this Rule 10 operates?
17 MR. NIEMANN: Yes, your Honour. There is -----
18 JUDGE STEPHEN: Perhaps before you do that, I might read the next
19 paragraph of Peruta which does comment on the section? It
20 says: "The section gives a right to cross-examine as to a
21 previous statement in writing; it does not give him the right to
22 obtain a written statement in possession of the adverse party".
23 The South Australian section comes, as does the Canadian, from
24 English earlier origins.
25 MR. NIEMANN: Yes, and the right, in our submission, relates to the
26 question of a right as opposed to the ability to request the
27 Court to so provide it, as opposed to a right of the party to
28 have it. In our submission, it regularly happens that a party
1 in the proceedings in dealing with this question calls for the
2 document. The document may be objected to on the basis of a
3 claim for privilege. Because there is an ability of the
4 opposing party to claim privilege, that ability precludes it
5 from being a right of the other party, because it then falls to
6 be determined by the Court as to whether or not the claim is
7 made out, or whether or not the document is to be made
9 In our submission, when dealing with that question,
10 the issue is whether the Chamber or whether in these cases in
11 South Australia or in England, which has a similar provision,
12 section 5 of the English Act, does the Court have the ability to
13 order the production of the document, and clearly it does. It
14 does so in order to determine the matter between the parties and
15 it may call for the document and put it to whatever use it
16 thinks is appropriate for the proceedings. Although there was
17 quoted a Canadian case which appeared to have a contra view to
18 it, it is our submission that at no stage does the Canadian case
19 prevent the Court from ordering the production of the document.
20 The procedure, in our submission, is that one calls
21 for the document and the Defence, or the other party, may make
22 it available. Again the calling for it does not of itself
23 create a right to have it, but it can be made available. In
24 some jurisdictions, there are consequences that flow from the
25 calling for the document and it being made available, but they
26 are not matters to which, in our submission, it is necessary for
27 your Honours to be concerned with.
28 At no stage have I asserted that in interpreting
1 Section 29 of the South Australian Act or Section 5 of the
2 English Act or, indeed, the Canadian provisions, do these
3 provisions create a right in the other party.
4 THE PRESIDING JUDGE: It is not like the rule in the United
5 States ---
6 MR. NIEMANN: No.
7 THE PRESIDING JUDGE: --- 26.2 of the Federal Rules of Criminal
8 Procedure and the Military Courts-Martial Rule which would
9 allow for the production of the witness statements, even of the
10 Defence, after they have testified. But Mr. Justice Proulx --
11 I may be mispronouncing the name, P-R-O-U-L-X -- says in his
12 concurring opinion on page 19: "Finally, the trial judge, in
13 the exercise of his discretion and in the superior interest of
14 justice, can allow access to the statement, and even order its
15 production which can then work in favour of the prosecution".
16 Then he goes on on page 20 to say: "However, I cannot
17 conceive that the power to compel the Crown to produce the
18 statement of a witness is a narrow and isolated power.
19 I conceive it to be but one facet of a wider power to order
20 production that flows from the ability of the Court to control
21 its process so as to manifestly ensure fundamental fairness and
22 see that the adversarial process is consistent with the
23 interests of justice. Such a power must include the power to
24 order production of the statement of an accused."
25 He says "accused" but, as I recall, the issue was
26 really whether the Crown could obtain all of the witness
27 statements of the Defence witnesses at the commencement of the
28 Defence's case in chief. The trial Judge said, "Yes, you may
1 have them". It was reversed, of course, saying, "No, you do not
2 get them when the Defence begins to put on its evidence",
3 because they are privileged and there is no reciprocal
4 discovery. But, once the witness testifies, as I read it at
5 least, you get into this question. But there certainly is no
6 absolute right for you to get all of these statements. The
7 Judge needs to look at them first, I gather, to see whether
8 there is any inconsistency, excise anything that is a
9 work-product and then, perhaps, give them to you. I do not
11 Mr. Niemann, I have interrupted you.
12 MR. NIEMANN: No, your Honour.
13 THE PRESIDING JUDGE: You have discussed Blackstone -- this outline
14 is helpful -- Cross and Ligertwood.
15 JUDGE STEPHEN: I wonder if I can ask you for a page reference to
16 Cross because the edition of Cross that I have does not go as
17 far as 1000.
18 MR. NIEMANN: I am sorry, your Honour. We have a very old edition
19 here. I have not been able to get my hands on a more recent
21 JUDGE STEPHEN: We have. It is all right.
22 THE PRESIDING JUDGE: We have 8 but it belongs to the Defence. Maybe
23 at the recess we can look at what we need to, I do not know.
24 JUDGE VOHRAH: Mr. Niemann, so far you have quoted authorities from
25 Canada, Australia and the United States. In the Indian
26 subcontinent there are specific provisions in the Evidence Act
27 relating to privilege. Have you researched the authorities
1 MR. NIEMANN: In relation to privilege, no, your Honour, I confess
2 I have not touched on that. What I have obtained is some
3 material on the criminal procedure in Malaysia in relation to
4 impeachment of witnesses. Indeed, the provision in Malaysia,
5 Section 145, as I understand it, provides that a witness may be
6 cross-examined as to previous statements made by him in writing,
7 or reduced in writing, and relevant to matters in question in
8 the suit or the proceeding in which he is cross-examined without
9 the writing being shown to him or being proved. But if it is
10 intended to contradict him by writing, his attention must,
11 before the writing can be proved, be called to those parts of it
12 which are to be used for the purpose of contradicting him. So,
13 so far it follows almost word for word the English and
14 Australian provisions to which I referred.
15 JUDGE VOHRAH: Except -- may I interrupt you -- that I think that
16 particular provision has to be read in the light of specific
17 provisions relating to privilege, sections 126 to 130, which
18 also appear in the Indian Evidence Act. I think there are lots
19 of authorities on that. Unfortunately, I have not got any
20 textbook on it. Perhaps we could get access to them.
21 MR. NIEMANN: Perhaps I might come back to your Honour on that if
22 I can get access to this material? Regrettably, our library
23 facilities here are somewhat limited when it comes to doing
24 broad researches.
25 JUDGE STEPHEN: But would you not agree that the passage you have
26 just read has nothing at all to do with compelling the
27 production from the other side of prior witness statements? It
28 has everything to do with the fact that if one has in one's
1 possession a contradictory prior statement of a witness for the
2 opposition, one can then use it and there are rules about the
3 extent to which you have to produce it.
4 MR. NIEMANN: Yes, and certainly, your Honour is absolutely right,
5 the point that I make, though, is the proviso, the proviso which
6 I was about to say is not specifically incorporated in the
7 Malaysian law as I see it, but has been interpreted to apply in
8 the Malaysian law by case law. But in the English and
9 Australian provision to which I referred, it does provide
10 precisely what your Honour says, but then goes on to
11 say, "provided that ... " -- I should go to it.
12 THE PRESIDING JUDGE: "... that the judge may order the production of
13 the statement and use it as he sees fit". That is what is in
14 Australia, Canada and England.
15 JUDGE STEPHEN: But that is not ordering the production, compelling
16 the production, from a party who has a prior statement of its
17 witness; that is when the cross-examining party happens to have
18 a prior statement which contradicts the witness's evidence and
19 the Judge can compel the production of it. You are not
20 suggesting that the Judge can just, at his own volition, waive
21 the professional privilege that otherwise applies, are you?
22 MR. NIEMANN: No, I am not suggesting that, but I do not read Rule 29
23 or Rule 5 to be so limited as to prevent the Judge from ordering
24 the other party to produce the document.
25 JUDGE STEPHEN: Really? I see.
26 THE PRESIDING JUDGE: It depends upon how you read the Canada case.
27 You say that once a witness testifies, then to the extent that
28 he has a privilege it is waived.
1 MR. NIEMANN: Yes, and to the extent that there may be privilege
2 attached to it. The privilege works to protect the statement in
3 circumstances where the Defence, in exploration of what course
4 it may take in presenting its defence, may have freedom to
5 explore all options, and then to elect what option it wishes to
6 take in order to present its case at trial.
7 Once it has made that election, then the issue of
8 privilege no longer has work to do because the other issues
9 which could create all sorts of variations in the process at
10 trial are precluded from the Prosecution, at least, from the
11 Prosecutor, seeing it. But once the Defence make that election
12 and say, "Right, we are going down this particular route and we
13 are calling this particular witness", then, in our submission,
14 it is not a question of privilege applying to it.
15 Cross-examination is at large. One can ask questions and the
16 ability to attack the credibility of a witness, which is most
17 often the basis upon which these statements are sought, is a
18 legitimate and proper exercise in the process of
20 I go back to say that it is in the fair determination
21 of the matter before the Court that the exercise of the Court's
22 power to call for production of the documents must be there.
23 The Court can look at it and say, "In the fair determination of
24 it, I will order that it be produced and be made available". It
25 may be that the court says, "No, there is a legitimate claim of
26 privilege here which may arise as a basis of work-product which
27 is to be excised". So that is why it is not a right of the
28 Prosecutor. It is merely an ability to call for it, but the
1 Court has the power, certainly.
2 I would go so far to say, your Honours, that in the
3 fair determination or disposal of the matter it may be necessary
4 to go contrary to the claim of privilege and to produce the
5 document, if the Court so orders. There may be bases upon which
6 the Court could do that.
7 JUDGE STEPHEN: But, as I understand it, you have no basis at all at
8 the moment for suggesting that there is a contradictory prior
9 statement. All you are doing is saying, "Did you make a
10 statement?" Answer: "Yes", and then call for its production.
11 Is that not the veriest fishing expedition?
12 MR. NIEMANN: No. It is based upon material that was made available
13 to the Prosecution which has been tendered in the form of a
14 letter. It is based on the answers to the questions ----
15 JUDGE STEPHEN: I am sorry, I did not follow that.
16 MR. NIEMANN: A letter was tendered to your Honours from the Defence.
17 JUDGE STEPHEN: Saying there was a prior statement, yes, but not
18 saying it was in any way contradictory, of course.
19 MR. NIEMANN: No.
20 JUDGE STEPHEN: Does that mean that with each Defence witness you can
21 in cross-examination, because he has given evidence, require the
22 production of his earlier witness statement?
23 MR. NIEMANN: We can call for the production.
24 JUDGE STEPHEN: And you can ask the Bench --
25 MR. NIEMANN: To order its production.
26 JUDGE STEPHEN: --- to order its production?
27 MR. NIEMANN: Yes.
28 JUDGE STEPHEN: That seems to me to be the veriest fishing
2 THE PRESIDING JUDGE: We will stand in recess for 15 minutes. When
3 we return, though, we will hear from you to finish up and then
4 we will begin with the Defence's response so that we can finish
5 up by 1 o'clock, hopefully.
6 JUDGE STEPHEN: Have you copies of Baker v. Campbell there now?
7 MR. NIEMANN: I think it has been organised.
8 (The Court adjourned for a short time)
10 THE PRESIDING JUDGE: Mr. Niemann?
11 MR. NIEMANN: Thank you, your Honour. Your Honour, before the break
12 Judge Stephen directed a question to me in relation to whether
13 or not this exercise would amount to a fishing expedition. In
14 our submission, no, because it is specific to what the witness
15 was testifying. The statement is a statement relevant to what
16 the witness has said. It is not fishing to test the credibility
17 of the witness or, indeed, maybe it goes the other way and
18 confirms the testimony of the witness, but that is not fishing.
19 It is directly relevant to the issue for determination. In our
20 submission, if it were to be a statement in relation to
21 something else, then clearly we would not be seeking its
22 production and the Court, presumably, would not order its
24 JUDGE STEPHEN: What do you mean "something else"?
25 MR. NIEMANN: I mean, if it was a statement in relation to some other
27 JUDGE STEPHEN: About the weather?
28 MR. NIEMANN: Yes.
1 JUDGE STEPHEN: Of course you would not, that is an irrelevant
3 MR. NIEMANN: No, but the point I am making, your Honour, is that
4 often fishing expeditions concern themselves with
5 irrelevancies. In our submission, this is not relevant. It is
6 relevant because it is a means and mechanism by which the
7 credibility of the witness can be tested.
8 THE PRESIDING JUDGE: Maybe what is suggested as a fishing expedition
9 is that you are enquiring about what the witness testified to on
10 a prior occasion without first establishing some inconsistency.
11 Where we are with respect to Witness W is that a question was
12 asked by Mr. Tieger as to what he -- I realise it was in closed
13 and so I want to be careful -- had said in this statement. Then
14 there was an objection -- I have the transcript -- that that
15 question was privileged. So at the point when Mr. Tieger was
16 getting into what was said in that statement there was an
17 objection. Then we conferred and ruled and you never really got
18 into the contents of that statement. So, you never really made
19 a showing in the present posture that the statement was
20 inconsistent. So, assuming that you have to make that showing,
21 and the failure to make that showing would constitute a fishing
22 expedition, we are where we are because of how we have
24 MR. NIEMANN: Just to answer your Honour on that matter, in our
25 submission, either way it is not irrelevant and it is quite
26 impossible, obviously, if the party is not in possession of the
27 statement to make any showing as to what the contents of the
28 documents would reveal. But, in our submission, it is not
1 fishing because in either way it may well be relevant. It may
2 be relevant because it confirms that on a previous occasion the
3 witness said this, or it may be relevant because it shows that
4 there is an inconsistency. So, in our submission, it is not
5 fishing in that sense. Fishing is where there is absolutely no
6 idea whether or not there is anything there at all. You simply
7 cast the line in and hope to find something. That is not the
8 case here.
9 Your Honours, quickly I would wish to take you to a
10 provision that has now been incorporated into the law of New
11 South Wales. In relation to Section 36 of the New South Wales
12 Evidence Act, I have provided a copy of that to your Honours,
13 just the last piece of paper that I handed to your Honours. It
14 deals with the principle in Walker v. Walker which is where that
15 issue of Section 29 of the South Australian Act and section 5 of
16 the English Act come into play. But, in particular, section 36
17 is very interesting because it provides, and it is set out on
18 the second page there, if your Honours could go to that: "The
19 Court may order a person who is present at the hearing of a
20 proceeding; and is compellable to give evidence in the
21 proceeding; to give evidence and to produce documents or things
22 even if a subpoena or other process requiring the person to
23 attend for that purpose has not been duly served on the
25 So in my submission, your Honour, here is a much more
26 clearly expressed provision which sets out much more clearly the
27 power of the Court to make such an order and an order in the
28 absence of subpoena.
1 JUDGE STEPHEN: But is not the scope of that section well illustrated
2 by its title? "A person may be examined without subpoena or
3 other process", and all the section does is to say that somebody
4 who is compellable, and that, presumably, excludes a spouse ----
5 MR. NIEMANN: Yes, that presumably ----
6 JUDGE STEPHEN: --- and happens to be present at the hearing, can be
7 ordered to give evidence. But are you suggesting that this
8 deals with privilege and affects the law as to privilege?
9 MR. NIEMANN: No. What I am saying is that it is another provision
10 which deals with the process of the Court having the capacity
11 and power to order production. It specifically provides the
12 production or produce documents.
13 JUDGE STEPHEN: Yes, in the absence of a subpoena.
14 MR. NIEMANN: Yes.
15 JUDGE STEPHEN: But, surely, it is dealing with -- there is no such
16 adjective, I suppose -- subpoena-able documents. It has nothing
17 to do with the whole question of privilege. It is saying the
18 fact that you have not subpoenaed a document does not prevent
19 the Court from ordering its production.
20 MR. NIEMANN: I am not arguing that it has anything to do with
21 privilege, your Honour. There are two issues here, one is the
22 power to order, the other is the question of dealing with
23 privilege. They are two separate issues. The issue that
24 I merely cite in this form is that it is yet another example of
25 a power to order.
26 THE PRESIDING JUDGE: But, to follow Judge Stephen's line, only if it
27 is not privileged. If the statement belongs to the witness, and
28 if, for example, the witness has the statement, perhaps the
1 lawyer interviewed the witness, took a statement in writing,
2 signed and the witness had an attorney with him and the witness
3 says: "I want that statement to keep with me". If that witness
4 has the statement, assuming that he has the right to have that
5 statement because it is his, then that is the kind of thing that
6 you could produce from that witness. You are not following me?
7 MR. NIEMANN: No, your Honour.
8 THE PRESIDING JUDGE: You do not have to, just move along. That is
9 the beauty of law! That is OK. We can move along.
10 MR. NIEMANN: Your Honours, the position in the United States, in my
11 submission, is the most developed position anywhere in any
12 jurisdiction that I have been able to locate. I would certainly
13 urge your Honours to apply the law of the United States because
14 it is the most progressive and apply it having regard to
15 international principles.
16 In my submission, to apply any other principle other
17 than the principle that has now gone through the whole process
18 and reached the point where the law is in the United States
19 would be to apply a law which has not developed that far. In my
20 submission, I could take you to a number of authorities,
21 including a remark by your Honour Justice Stephen in Grant v.
22 Downs which talks about this whole process of fair trial, the
23 process of open proceedings and so forth.
24 It seems to me that the United States has grappled
25 with it and has actually introduced specific rules to deal with
26 it. Certainly, I would be urging your Honours to apply the most
27 progressive and up-to-date provision that there is available in
28 common law jurisdictions.
1 THE PRESIDING JUDGE: I am sitting here as the only United States
2 Judge between two Judges from a common law background. The
3 Defence might argue that it is not progressive, it is going
4 backwards. But, in any case, 89(A) of our rules of evidence,
5 our 10 rules of evidence, say that the Tribunal shall not be
6 bound by national rules of evidence. So whether it is
7 progressive, going forward or retrogressive, going backwards,
8 I do not know whether just because the United States has a rule
9 requiring the turning over of witness statements of the Defence
10 after they have testified, I do not know whether we should adopt
11 it or not because we say right in our Rules we are not to be
12 bound by national rules.
13 MR. NIEMANN: But, consistent with the Rules, your Honour, the
14 general provisions as set out in Rule 89(B) encourage your
15 Honours to apply the rules of evidence which best favour a fair
16 determination of the matter before it and are consonant with the
17 spirit of the Statute and the general principles of law. In my
18 submission, when doing so, it is appropriate to look to perhaps
19 the advanced and progressive provisions that are available,
20 certainly in common law jurisdictions where this issue arises,
21 particularly in addressing issues of privilege.
22 The foundation authority, your Honours, for the
23 amendment to the law of the United States, and the law of the
24 United States was not always as progressive as what it is now,
25 and it has gone through a process of evolution, the sort of
26 evolution that may well happen in all the other common law
27 jurisdictions, did come perhaps to a head in the Supreme Court
28 decision of the United States v. Nobles. I did wish to make
1 some reference to parts of this decision because I think it is
2 very instructive in seeing how the United States came to this
3 position and how, ultimately, this ended up as forming part of
4 the rules themselves.
5 This, your Honours, was a criminal prosecution in the
6 federal jurisdiction. In the case, the Defence counsel sought
7 to impeach the credibility of key Prosecution witnesses.
8 Perhaps before I go any further, I should give the citation for
9 this decision, although I think I have done so in my outline.
10 It is 422, United States, at 225:
11 "When the investigator was called as a witness, the
12 District Court stated that a copy of the investigator's report,
13 inspected and edited by the Court in camera so as to excise
14 references to matters not relevant to such statements, would
15 have to be submitted to the prosecution for inspection at the
16 completion of the investigator's testimony. When Defence
17 counsel said he did not intend to produce the report, the court
18 ruled that the investigator could not testify about his
19 interviews with the witnesses".
20 The principal decision of the Court is delivered by
21 his Honour Mr. Justice Powell. His Honour at page 227 of the
22 opinion crystallizes the question for determination by the Court
23 in the following words. He says: "The question presented here
24 is whether in these circumstances a federal trial court may
25 compel the Defence to reveal the relevant portions of an
26 investigator's report for the prosecution's use in
27 cross-examining him".
28 His Honour then goes on to deal with the facts and
1 circumstances of the case. He deals with the whole issue of the
2 adversarial system and quotes with approval a decision of the
3 Supreme Court of the United States in the United States v.
4 Nixon. This appears, if your Honours please, on the handout
5 judgment at page 21. It is the second to last paragraph on page
6 21 where his Honour cites a direct quote from Nixon and it is
7 instructive, your Honours, because it says: "We have elected to
8 employ an adversary system of justice in which the parties
9 contest all issues before a court of law. The need to develop
10 all relevant facts in the adversary system is both fundamental
11 and comprehensive. The ends of criminal justice would be
12 defeated if judgments were to be founded on a partial or
13 speculative presentation of the facts. The very integrity of
14 the judicial system and public confidence in the system depend
15 on full disclosure of all the facts, within the framework of the
16 rules of evidence. To ensure that justice is done, it is
17 imperative to the function of the courts that compulsory process
18 be available for the production of evidence needed either by the
19 prosecution or by the Defence."
20 In my submission, your Honours, this is a coming
21 together of what is at the very position here. When one looks
22 at the international standards that apply to interpretation, and
23 when one appreciates that the approach to be taken is the
24 equality of arms and, in speaking of the equality of arms, it is
25 the equality between the Prosecution and the Defence
26 respectively, in my submission, his Honour's reference to the
27 United States v. Nixon at this point is most instructive.
28 THE PRESIDING JUDGE: The reference to Nixon is very instructive in
1 terms of having all of the relevant facts, but Nobles itself,
2 though, was based on a finding that there was a waiver of the
3 privilege because the investigator used the report for
4 testimonial purposes. Of course, then once he uses the
5 investigator's report that contains the statements of two
6 witnesses, then there would be this waiver.
7 The concurring opinion, though, in Nobles, perhaps, is
8 more instructive because the concurring opinion by Justice White
9 distinguishes between the work-product doctrine and the
10 lawyer-client privilege, finding that that report itself would
11 not be privileged but protected by pretrial discovery, citing
12 Hickman v. Taylor, particularly a concurring opinion by Justice
13 Jackson who, curiously, was Prosecutor in the Nuremberg trials.
14 It was Justice Jackson's approach in Hickman v. Taylor which
15 Nobles, the concurring opinion bases its approach, that from my
16 perspective is more enlightening. The principle is certainly
17 there involving United States v. Nixon. I guess that was Nixon
18 as in President Nixon, is that so? I do not know. I have not
19 gone to the case.
20 MR. NIEMANN: Your Honour, I confess I am not familiar with it other
21 than the quote that is here.
22 THE PRESIDING JUDGE: But, anyway, the direct holding, though, finds
23 a waiver because of the use of the report by the investigator
24 for testimonial purposes and we do not have that here.
25 MR. NIEMANN: No. Your Honour, moving on to the issue of the right
26 to silence, though, which, as I say, I foreshadow would arise in
27 the Defence presentation: At page 23 Mr. Justice Powell deals
28 with that question there. At the second paragraph he makes
1 reference to the fact: "The Court of Appeals concluded that the
2 Fifth Amendment renders criminal discovery 'basically a one way
3 street'." Then he says: "Like many generalizations in
4 constitutional law, this one is too broad." Then the next
5 paragraph: "The Fifth Amendment privilege against compulsory
6 self-incrimination is an 'intimate and personal one' which
7 protects 'a private inner sanctum of individual feeling and
8 thought and proscribes state intrusion to extract
9 self-condemnation". The point being made, in my submission,
10 your Honours, again reinforces this question of it being
11 individual to the accused in the instances of this case.
12 There is also a further reference, which I will not
13 take your Honours to, at the bottom of the page to that issue as
15 There is then on page 25 of the handout -- I will not
16 read it out -- a reference to the work- product doctrine. That
17 is further developed, your Honours, on pages 27. His Honour
18 says in the second paragraph on page 27 when dealing with the
19 work-product doctrine: "At its core, the work-product doctrine
20 shelters the mental processes of the attorney, providing a
21 privileged area within which he can analyse and prepare his
22 client's case. But the doctrine is an intensely practical one,
23 grounded in the realities of litigation in our adversary
24 system. One of those realities is that attorneys often must
25 rely on the assistance of investigators and others".
26 The point I wish to extract from that reference there,
27 your Honours, is this question of the lawyer having the freedom
28 when defending an accused to be able to explore all
1 possibilities, and included among that is the obtaining of
2 statements, and then to have the freedom to elect which
3 particular statements they may choose to use in the course of
4 the Defence.
5 THE PRESIDING JUDGE: That comes from the concurring opinion?
6 MR. NIEMANN: I am sorry, your Honour?
7 THE PRESIDING JUDGE: I think it does. In any case ----
8 MR. NIEMANN: Your Honour, of course that then is reflected by the
9 amendment to the Rules in Rule 26.2. I do not think it is
10 necessary for me to specifically read the whole extract there as
11 it is available to your Honours. I am sure your Honours are
12 familiar with it. But it deals with this whole question. It
13 certainly, in my submission, having regard to the limited
14 canvassing of the law that there is available in all the
15 jurisdictions, is the pinnacle of all provisions available if
16 one looks at a fair determination of the issues between the
18 In our submission, your Honours, if your Honours are
19 to interpret the Statute of the Tribunal, it is appropriate,
20 having regard to the fundamental principles of international law
21 when it comes to interpreting such matters, to apply a provision
22 such as this or similar to this which would permit the best
23 determination and resolution of the issues between the parties.
24 Before I conclude, your Honours, as promised, I have
25 looked at the laws of Malaysia Evidence Act of 1971 and, in
26 particular -- I regret that I do not have a copy available to
27 hand to your Honours at the moment, but I will provide this to
28 you -- Section 129 provides that, "No one shall be compelled to
1 disclose to the court any confidential communication which has
2 taken place between him and his legal professional adviser
3 unless he offers himself as a witness, in which case he may be
4 compelled to disclose any such communications as may appear to
5 the court necessary to be known in order to explain any evidence
6 which he has given, but no others."
7 In our submission, this deals with the issue of the
8 accused waiving the right of privilege, and it would appear to
9 be waived once the accused decides to enter the witness box and
10 gives evidence. It is, in our submission, the similar situation
11 to which happens here, that if any privilege did attach, the
12 process of entering the witness box waives that privilege, and
13 that the request for production of the prior statements of the
14 witness relevant to the issues is an appropriate request by the
15 Prosecution and, in our submission, it is entirely proper for
16 the Court to order such production.
17 JUDGE STEPHEN: Could I ask you a question? Really, your submission
18 is based very largely, perhaps entirely, on there being a waiver
19 by the witness giving evidence.
20 MR. NIEMANN: Yes.
21 JUDGE STEPHEN: Is there any authority at all to that effect? I do
22 not recall it in any of the text on evidence. They deal with
23 waiver but not, as I recall it, from that.
24 MR. NIEMANN: There is one authority I just quoted, your Honour, that
25 is section 129 of the Malaysian provision which I just quoted
26 then, speaks of "No one shall be compelled to disclose
27 confidential communications etc. unless he offers himself as a
1 JUDGE STEPHEN: Yes, I would like to look at that carefully, but I am
2 thinking really of the textbooks on evidence. When they do deal
3 with waiver, they do not specify that giving evidence amounts to
4 waiver, do they?
5 MR. NIEMANN: No, I am not sure that I have any matters specifically
6 that may assist your Honour there, but ----
7 JUDGE STEPHEN: I will certainly have a look, but I just wondered
8 whether you had a reference.
9 MR. NIEMANN: Your Honours, there is a quote in Grant v. Downs which
10 may be of assistance in terms of the process by which one deals
11 with this. It appears in the decision of Justices Stephen,
12 Mason and Murphy at page 688 at the very bottom of page in the
13 judgment where it provides: "It is well accepted that the court
14 in allowing production and inspection of documents exercises a
15 judicial discretion. In so doing it needs to scrutinize with
16 care claims of privilege made on the ground now under
17 consideration. It is for the party claiming privilege to show
18 that the documents for which the claim is made are privileged.
19 He may succeed in achieving this objective by pointing to the
20 nature of the documents or by evidence describing the
21 circumstances in which they were brought into existence. But it
22 should not be thought that the privilege is necessarily or
23 conclusively established by resort to any verbal formula or
24 ritual. The court has power to examine the documents for
25 itself, a power which has perhaps been exercised too sparingly
26 in the past, springing possibly from a misplaced reluctance to
27 go behind the formal claim of privilege. It should not be
28 forgotten that in many instances the character of the documents
1 the subject of the claim will illuminate the purpose for which
2 they were brought into existence."
3 That may be assistance, if your Honour pleases, when
4 dealing with, for example, work-product privilege which may be
5 part and parcel of an otherwise verbatim record of the witness's
6 testimony or witness's statement. So, in a situation where a
7 claim is made to privilege based on the fact that it contains
8 work-product, which is clearly covered by, for example, the
9 Rules of the Tribunal, it seems to me, if your Honour pleases,
10 that this reference that I have just referred to suggests that
11 that should not prevent the Court from looking at it if such a
12 claim were to be made.
13 JUDGE STEPHEN: It is an excellently worded passage, certainly!
14 MR. NIEMANN: No doubt.
15 THE PRESIDING JUDGE: That again deals with the first privilege, that
16 is, the privilege between lawyer and client. Again that
17 opinion, that judgment, dealt with a report prepared by a client
18 given to his counsel. So the issue is under what circumstances
19 may an individual waive the lawyer-client privilege.
20 MR. NIEMANN: Yes.
21 THE PRESIDING JUDGE: Your position is a witness's statement does not
22 fit within a lawyer-client privilege. It fits within a
23 protection against discovery perhaps reflected in Rule 70(A) of
24 our Rules of Procedure and Evidence which deal with pretrial
25 matters. The only Rule we have on privilege is Rule 97 in our
26 Rules of Evidence and that is lawyer and client privilege. So
27 there is really a difference as I see it.
28 MR. NIEMANN: Yes, but -----
1 THE PRESIDING JUDGE: But I do not even see the Defence -- the
2 Defence has not once cited Rule 97 in the papers that they
4 MR. NIEMANN: But the point I would make, your Honour, is that if
5 your Honours are looking for authority to support the
6 proposition of waiver ----
7 THE PRESIDING JUDGE: I see.
8 MR. NIEMANN: --- then that is to be found in Rule 67(C) which talks
9 about the decision being made -- it talks about where it is
10 going to be used in evidence.
11 THE PRESIDING JUDGE: Yes.
12 MR. NIEMANN: So, in my submission, once that decision is made, that
13 operates in a sense in the same way as a waiver operates. So,
14 in my submission, ----
15 THE PRESIDING JUDGE: Even that privilege can be waived?
16 MR. NIEMANN: Even that privilege can be waived. The whole process
17 of waiver is further reinforced by Rule 97 in the reference to
18 the fact of the person entering the witness box and giving
20 Unless there are any other matters, your Honour? Your
21 Honours, I just need to draw your attention to the fact that in
22 my outline I have referred in paragraph 9 in a reference to
23 Grant v. Downs to page 608. I am informed that, in fact, the
24 correct reference is 686.
25 THE PRESIDING JUDGE: Thank you, Mr. Niemann. Mr. Wladimiroff?
26 MR. WLADIMIROFF: Thank you, your Honour. I think I would prefer to
27 confer with my colleagues before addressing the issue. May
28 I suggest that we adjourn at this moment and start at 2 o'clock
1 instead of half past 3?
2 THE PRESIDING JUDGE: That is why we recessed early. We indicated
3 when we returned we would like to hear your argument. So
4 I would like you to go ahead, please, with that. We really have
5 time constraints. We may have enough time to hear you some more
6 and the Prosecutor some more, but I would like you to begin,
8 MR. WLADIMIROFF: Right, your Honour.
9 THE PRESIDING JUDGE: We have your submission and we have looked at
10 your submission you filed yesterday as well as the materials.
11 We appreciate those. Some of them were not in English, but we
12 have reviewed carefully the materials, at least, that were in
13 English. If there is anything that you submitted that is in
14 Dutch, you may want to help us out a little bit. So I am
15 letting you know in advance our limitations.
16 MR. WLADIMIROFF: Yes, I appreciate that, your Honour. Perhaps
17 I should start by asking your permission that if it comes to the
18 technical aspects of common law, I feel more confident if those
19 aspects may be discussed by Mr. Kay, if necessary. I will try
20 to deal with it, but anyhow it would be fair if I concentrate on
21 the civil law aspects and deal with the common law aspects as
22 they are on the table.
23 As we have expressed in our brief, your Honours, we
24 take the position that we are not under an obligation to provide
25 the Prosecution with any statements, whether signed, unsigned or
26 produced by mechanical means, given on a previous occasion by
27 witnesses who testified for the Defence in front of the
1 We also oppose the idea that the Prosecution may
2 question witnesses as to the content of any discussions they may
3 have had with the representatives of the Defence. As you may
4 have seen in our brief, we have explained that the basis of our
5 position emerges from the international recognised principle
6 that the burden of proof in a criminal case rests with the
7 Prosecution and that the Defence should not be compelled to give
8 any evidence against himself.
9 We have taken the position that giving evidence here
10 should be understood in the broadest sense to relate not only to
11 testimony in court, but also supplying information to assist the
12 Prosecution in proving its case. We have pointed out in the
13 brief that such a position is consistent with Article 14 of the
14 International Covenant and is also part of the Statute in
15 Article 21.
16 In relation between a Defence lawyer and his client,
17 the Defence lawyer, on the one hand, acts on the instruction of
18 his client. He does not accept instructions from other parties
19 in the case. But, on the other hand, though, when it comes to
20 the execution of his instructions, a Defence lawyer is
21 independent; only he decides how to proceed within the law.
22 Within this system, the Defence lawyer is the legal
23 continuation of his client. He is the voice, the pen and the
24 brains of the client when it comes to representing him in legal
26 As far as the Defence lawyer and the client in this
27 system are one and the same to the outside world, rights of the
28 client may also be exercised by the Defence lawyer. The right
1 of the client to remain silent, therefore, is the basis of the
2 professional privilege of the Defence lawyer.
3 As you have rightly pointed out, your Honour, from
4 this principle two privileges emerge. One is the basis of the
5 privilege as such, that is any communication between the Defence
6 lawyer and his client, and the second one is the logical
7 continuation of being one and the same with his client when the
8 Defence lawyer acts on instructions of his client. That is the
9 second one we are dealing with here. We are not relying on the
10 first one. The first one, though, is the basis to understand
11 why the second one emerged.
12 From that point of view, we have been looking into
13 other systems to understand how this operates. We have been
14 focusing on four questions: Does the system maintain the right
15 to remain silent or are there indications to the contrary? Does
16 the system maintain the professional privilege, both aspects, or
17 are there indications to the contrary? Does the privilege
18 encompass communications with third parties such as witnesses or
19 are there indications to the contrary? Does a Defence lawyer
20 have to disclose as requested for by the Prosecution or are
21 there indications to the contrary?
22 We make a distinction when we are going to discuss these
23 questions between the right to cross-examine on the basis of
24 previous statements and the obligation to disclose. That is the
25 basis of our argument. We are not disputing the right to
26 cross-examine on the basis of previous statements, if you have
27 them. We are arguing that you cannot compel the Defence to
28 disclose such previous statements.
1 What have we found? How do these principles operate
2 in the jurisdictions of the world? As far as we could in the
3 limited time we had during the weekend, we researched the law in
4 common law systems and civil law systems, as well as the trends
5 in other systems such as the Islamic legal system and the
6 Communist system. The general trend in all jurisdictions is
7 that the right to remain silent emerges from the principle that
8 no one should be compelled to incriminate himself or to assist
9 the Prosecution in proving its case. That is all over the world
10 the basis of the criminal justice system. We have found no
11 system where an accused is not entitled to be defended by a
12 lawyer. We found in all systems that a Defence lawyer is one
13 and the same as, I just described, with his client. All systems
14 recognise the role of the Defence lawyer and the necessity to
15 work on the instructions of the client and, therefore, to
16 investigate matters under his privilege. The leading principle
17 is that the Defence lawyer is entitled to the same right as the
18 client, as if the client were in the position to do all that
19 work by himself.
20 That being so, it appears that the principle of
21 non-self-incrimination is not only a matter as regards the
22 client, but also affects the role of his Defence lawyer and then
23 we are in the second understanding of the professional
24 privilege. Defence lawyers generally do have a professional
25 privilege of this second type all over the world.
26 So the scope of our research was to investigate
27 whether legal systems provide for instruments that could be seen
28 as an infringement of that second professional privilege. The
1 general trend is that in most systems the judicial bodies are
2 authorised, be it in most cases under certain restrictions, for
3 example in the civil law systems the involvement of the Dean of
4 the Bar, to ignore the professional privilege in both senses of
5 a Defence lawyer if he is a suspect or an accused himself, or
6 when he is presumed to keep the corpora et instrumenta delicti.
7 These are generally recognised as exceptions and no others have
8 been found.
9 As far as we are concerned with the duties to assist
10 the Prosecution in proving its case, as claimed by the
11 Prosecution, we may pass to you the following information.
12 Statements of Defence witnesses made on behalf of an accused by
13 the Defence lawyers or their representatives in furtherance of
14 the Defence preparation, are privileged and not subject to
15 disclosure. This principle can be found in all adversarial
16 systems known to the Defence, except for the United States. It
17 has already been discussed extensively, so there seems little
18 left for me, that in England on the basis of Lord Denman's Act
19 that for more than 100 years it has been accepted that the legal
20 privilege of this second type is encompassed in British law,
21 that is that also in statutory provisions such as, for example,
22 the Police and Criminal Evidence Act, acknowledge that
23 communications between a professional legal adviser and his
24 client or any person representing his client or between such an
25 adviser or his client or any such representative and any other
26 person, hence "and any other person", made in connection with or
27 in contemplation of legal proceedings and for the purpose of
28 such proceedings are protected.
1 This provision may raise some questions related to
2 what must have been then the purpose of those documents drawn up
3 by the Defence, making notes or making notes of what a third
4 party such as a witness may have said. Are any communications
5 written down or not, should they only be made for the sole
6 purpose to be used in the trial or is the purpose of enabling
7 litigation a dominant position here? As I understand English
8 law, it seems to me that the dominant purpose here is the
9 leading principle. Therefore, we maintain the position that
10 under English law as long as it was our dominant purpose to
11 interview witnesses and to make notes about what they said, that
12 such work is protected under the second type of privilege. We
13 have found no evidence in the textbooks nor in the case law that
14 says other things about this.
15 So far we have no reason to believe that in English
16 law there is any basis to be found that a Defence lawyer may be
17 compelled to disclose any communication with third parties, such
18 as witnesses orally or being written down on a document, unless
19 there is a statutory provision which, we will argue, is not the
20 case here. I will come to that later.
21 In Canada we have found nothing that indicates that
22 under Canadian law a Defence lawyer may be compelled to disclose
23 previous statements of witnesses who are called to give evidence
24 in court. On the contrary, if we look to the Canadian Charter
25 as it is explained in the exhibit Annex B that we have given to
26 you, it is our understanding that although the debate on
27 disclosure has been concentrating on the duties of the Crown to
28 disclose, it did not concentrate on any duty of the Defence,
1 that is there are no provisions allowing the Court to impose any
2 obligation on the Defence to disclose such previous statements.
3 As a matter of fact, the case law presented by the Prosecution
4 simply and very clearly says that such an obligation cannot be
5 imposed on the Defence. So we really do not see how the case of
6 the Crown v. Peruta might support their case. It is our
7 understanding that also in the Canadian system Lord Denman's Act
8 is applicable and it is exercised in the same way as it is in
9 England. Therefore, we believe that the material handed over to
10 you by the Prosecution does not support the position. On the
11 contrary, we would say.
12 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, with respect to the
13 last case that you referred to, Peruta, as I questioned
14 Mr. Niemann, as I understand it, and it is important for me to
15 understand the posture of the case and how it arose, again as
16 I understand it there was an effort on the part of the
17 prosecutor, the Crown, to request from the Defence all witness
18 statements of its witnesses when the Defence began to offer its
19 evidence on its case in-chief. The prosecutor says: "We want
20 those statements." The trial judge gives them the statements.
21 Appeal reverses, saying that there is a privilege to those
22 statements, that in Canada there is no reciprocal discovery.
23 Maybe that is what you are suggesting exists, but it is not
24 there yet. There is no reciprocal discovery.
25 MR. WLADIMIROFF: That is right.
26 THE PRESIDING JUDGE: Therefore, the Defence does not have to hand
27 over those statements to you when they begin their case, but
28 again as I read the opinion of Judge Proulx, when he discusses
1 access to the statements that is when he says on page 19 that:
2 "The trial Judge in the exercise of his discretion, and in the
3 superior interests of justice, can allow access to the statement
4 and even order its production which can work in favour of the
5 prosecution." Then he goes on to say that: "I conceive it to be
6 but one facet of a wider power to order production that flows
7 from the ability of the Court to control its process so as
8 manifestly ensure fundamental fairness and see that the
9 adversarial process is consistent with the interests of
10 justice. Such a power must include the power to order the
11 production of the statement of an accused."
12 What I am asking you to do then is to focus on, if you
13 consider there is a difference, between pretrial discovery where
14 at least this Court finds that there is no right in the
15 Prosecutor because there does not exist reciprocal discovery,
16 and then the right of the Judge to order the production of the
17 statement and then allow the Prosecutor access to it for
18 cross-examination. Is there a difference?
19 MR. WLADIMIROFF: I think, so your Honour.
20 THE PRESIDING JUDGE: Because they recognise the privilege.
21 MR. WLADIMIROFF: Yes, it seems to us that a court can only order in
22 trial the production of that kind of material if there is a
23 statutory provision to that extent. If there is not the Judge
24 cannot simply by his own discretion lift the professional
26 THE PRESIDING JUDGE: Again, let me ask you this. Where in our Rules
27 does this privilege that you say protects the Defence from
28 production of a witness statement, statement now, after the
1 witness testifies? Where in our Rules does that privilege lie?
2 MR. WLADIMIROFF: To be frank with you, your Honour, that is the
3 problem of the Rules of this Tribunal.
4 THE PRESIDING JUDGE: It is not there?
5 MR. WLADIMIROFF: There is so much not there, there is so much indeed
6 not there, how many times have we not discussed the issue of we
7 should not get technical? There are no technical rules here.
8 THE PRESIDING JUDGE: So is there a rule in our Rules of procedure
9 that would protect this production?
10 MR. WLADIMIROFF: The Rules only respond to issues that have been
11 discussed apparently between the Judges when drafting the
12 Rules. The basis of your Rules, our Rules, is the Statute. The
13 flavour of the Statute is that it recognises the principle that
14 no one can be compelled to testify against himself or to
15 incriminate himself or otherwise assist the Prosecution to prove
16 its case. It is not expressis verbis in the Statute, but the
17 flavour of it, notably if you compare it with the International
18 Covenant and if you compare it with the comments on the
19 International Covenant, makes it clear that the professional
20 privilege is a part of our system in this Tribunal. Therefore,
21 both privileges are involved here. There is no reason to
22 presume that under the Statute the drafters of the Statute had
23 only their thoughts focused on the first privilege and did not
24 think about the second privilege.
25 I cannot read in the minds of Judges, but apparently
26 when the Judges drafted the Rules of disclosure they expressly
27 confined themselves to the Rules as you did. The Defence is
28 only obliged to disclose as far as special defences are
1 involved, and then only to the extent to provide the other party
2 with names, dates and places, not the statements as such. It is
3 not under the Rules that we have any obligation at the pretrial
4 stage to disclose any statement to the Prosecution, and you
5 recognised that.
6 THE PRESIDING JUDGE: Before you go on, in your submission on
7 page -- I am not sure what page its, they are not numbered
8 -- page 4, I think it is the fourth page, you say that Rule
9 70(A) protects all Defence materials. What I am trying to find
10 out is where in our Rules is there a protection? I gather you
11 say that Rule 70(A) protects all Defence material.
12 MR. WLADIMIROFF: I would say that Rule 70 applies to both parties.
13 It is the bottom line. It would not make sense to draft Rule 70
14 if there is no privilege.
15 THE PRESIDING JUDGE: So that is a privilege then that inures to the
16 benefit of both the Prosecutor and the Defence not to produce
17 certain materials?
18 MR. WLADIMIROFF: Yes, and the scope of that privilege is not
20 THE PRESIDING JUDGE: I understand in terms of pretrial because of
21 the different burdens, but that is a pretrial argument I think.
22 Rule 67(C), however, does require reciprocal discovery and that
23 is assuming that the Defence takes advantage of Rule 60(B) and
24 requests additional material. Then the Defence is required to
25 provide to the Prosecutor those materials that it intends to
26 rely on at trial. Is it your position that 67(C) would protect
27 the Defence from providing witness statements?
28 MR. WLADIMIROFF: I take a different view, your Honour. I approach
1 67(C) from the assumption that if the Defence triggers 67(C),
2 then apparently it waives its privilege.
3 THE PRESIDING JUDGE: OK. So then at least in our Rules if the
4 reciprocal discovery mechanism kicks in, then, if you
5 understand, applies?
6 MR. WLADIMIROFF: Yes, I understand that.
7 THE PRESIDING JUDGE: Then the Defence would be required to give its
8 witness statements. So it seems to me that there are conditions
9 under which witness statements can be waived, that is the
10 privilege that, you say, attaches. That is just one example.
11 JUDGE STEPHEN: Could I ask you in relation to that, do you regard a
12 statement by a witness as a document which you would intend to
13 use as evidence?
14 MR. WLADIMIROFF: Absolutely not, your Honour.
15 JUDGE STEPHEN: In that case, 67(C) would not apply to witness
17 MR. WLADIMIROFF: Absolutely. We are going to argue that. We may
18 waive our rights on the kind of material as listed here, but
19 before I could address the observations of the Presiding Judge
20 you put forward your question. We have no doubt that the
21 statements we have written down as we appreciated what the
22 witness might have said, is not a piece of evidence we are going
23 to produce at any stage.
24 THE PRESIDING JUDGE: If it is not a piece of evidence, then are we
25 really talking about privileged matters or are we really talking
26 about evidence that is outside of the arena of discovery? At
27 least in a concurring opinion in the Nobles case written by
28 Justice White, he makes that distinction and then he goes to
1 back to Hickman v. Tailor. What he is saying is that some
2 matters are really not evidence. There are really matters that
3 just stay out of the pretrial discovery. So you now say it is
4 not evidence. It seems to me I wonder what is the need for the
5 privilege, or are we just saying that this is excluded from
6 pretrial discovery?
7 MR. WLADIMIROFF: The purpose of why we have done what we have done
8 is to be able to understand what is the information that is
9 floating around and to be able to decide who will be called.
10 From that basis on the document, or whatever it is, serves as an
11 instrument to examine the witness in court. It has no other
12 purpose then.
13 THE PRESIDING JUDGE: So 70(A) then, as you indicated, protects all
14 Defence materials, including statements, is that your position?
15 MR. WLADIMIROFF: Yes.
16 THE PRESIDING JUDGE: OK. That protection carries through, even
17 though it is in part 5, I think, the pretrial part of our Rules,
18 it carries through to the time of trial, is that your position?
19 MR. WLADIMIROFF: Could you say that again?
20 THE PRESIDING JUDGE: You say that Rule 70(A) gives the Defence a
21 privilege not to produce statements of its witnesses, and I am
22 asking you is that a privilege that carries on until the time of
24 MR. WLADIMIROFF: I do not see any reason why it should not.
25 THE PRESIDING JUDGE: OK.
26 MR. WLADIMIROFF: You see, we make a distinction between witnesses
27 giving evidence in court and a witness statement which is for
28 trial preparation and used during the trial to examine the
1 witness by the moving party.
2 THE PRESIDING JUDGE: We have 10 Rules of evidence and you have
3 indicated there is a problem in that we do not have extensive
4 Rules of Evidence, we do not have these technical rules like the
5 United States.
6 MR. WLADIMIROFF: Absolutely not.
7 THE PRESIDING JUDGE: Intentionally.
8 MR. WLADIMIROFF: But not for the purpose to ambush any of the
10 THE PRESIDING JUDGE: Not for the purpose to ambush. We have been
11 through this trial for I do not know how many weeks, and we have
12 resolved questions like hearsay questions, leading questions,
13 what is the scope of redirect, misleading questions. All of
14 these issues we have resolved based on our 10 Rules of
15 Evidence. What I suggest to you is that 89(B), I think it is
16 89(B), that says that the Judges may admit all evidence that is
17 relevant and has probative value, is just designed just that
18 way, to give the Judges latitude, that this is not a jury
19 trial. Also these are trials before an International Tribunal
20 that involve both civil and common law considerations. So we
21 have 10 Rules of Evidence, but we have been ruling on these
22 technical objections. As a matter of fact, we have one that we
23 have to rule on that arose this morning.
24 So if there was a Rule like the one in Canada, it is
25 Rule 10, then would the Prosecutor be permitted to ask for the
26 production of the Defence witness's statement and then have
27 cross-examination of that witness after the witness testifies?
28 If there was that specific Rule, if we chose to have that
1 specific Rule in our Rules of Evidence.
2 MR. WLADIMIROFF: No, your Honour. I may draw your attention to page
3 19 of that Canadian decision. It says:
4 "Section 10 does not give the adverse party to the
5 right to obtain the prior statement of a witness he wishes to
6 cross-examine. Neither the spirit nor the text of this
7 legislation can lead to another interpretation. However, within
8 the limits of Section 10 a judge can authorise the production of
9 the statement and, therefore, access to it. Other situations
10 can occur during cross-examination. The situation, for example,
11 where the witness would need to refresh his memory with the help
12 of his prior statement, in which case both the party examining
13 him and the adverse party would be allowed to examine the
14 document. Finally, the trial judge in the exercise of his
15 discretion and in the superior interests of justice, can allow
16 access to the statement and even order its production which can
17 then work in favour of the Prosecution."
18 THE PRESIDING JUDGE: Yes. That sentence and the one that I referred
19 to on the next page it seems to me indicate that if there were a
20 Section 10 we could order the production of the statement.
21 MR. WLADIMIROFF: Only ----
22 THE PRESIDING JUDGE: But there is not that rule. I understand.
23 MR. WLADIMIROFF: No, there is not.
24 THE PRESIDING JUDGE: We do not have a Rule ----
25 MR. WLADIMIROFF: But only if we use it, your Honour. Once again we
26 make a distinction between what we use as evidence and what is
27 in evidence and those materials we do not use.
28 THE PRESIDING JUDGE: But in this Quebec case they were not being
1 used by the Defence. On the contrary, the Crown wanted to get
2 them before the Defence even had an opportunity to put on its
3 case. The trial judge gave them to the Defence. The Appeals
4 Chamber said no, because there is no reciprocal discovery; there
5 is this privilege. Nevertheless, at least the way that I read
6 the case -- maybe we will read it differently -- is that
7 notwithstanding this privilege, once the witness testifies then
8 the Judge can order production and it may inure to the benefit
9 of the Prosecutor.
10 MR. WLADIMIROFF: We apparently read it differently. As we read it,
11 as long as it is not in evidence and it will not be used as
12 evidence it is privileged. Therefore, the judge cannot simply
13 compel the Defence lawyer to produce it.
14 THE PRESIDING JUDGE: It is rare for a statement to come into
15 evidence because it is implicitly hearsay under at least common
16 law systems. So that a statement is not the kind of thing that
17 you just offer into evidence. It is the kind of thing that is
18 used for other purposes, like impeachment or to refresh a
19 witness's recollection.
20 MR. WLADIMIROFF: But is not the presumption here that one of the
21 parties is using the statement.
22 THE PRESIDING JUDGE: I thought the Crown wanted to use it and tried
23 to get it in advance of trial and the trial judge said no. But
24 that is OK. We may read it differently. In any case, the
25 privilege is found in Rule 70(A) and that privilege continues on
26 to trial, as you see it?
27 MR. WLADIMIROFF: Yes. We do not see any reason why the roots of
28 that principle should be dropped during trial, because it
1 emerges from a principle that simply comes from the nemo tenetur
2 principle, Latin for no one can be compelled to do anything that
3 will harm his case or to testify himself or to assist the
4 Prosecution. I do not see that that principle suddenly does not
5 apply during trial.
6 THE PRESIDING JUDGE: We will stand in recess then until 2.35.
7 (1.05 p.m.)
8 (Luncheon Adjournment)
1 (2.35 p.m.)
2 THE PRESIDING JUDGE: Mr. Wladimiroff, would you like to continue,
4 MR. WLADIMIROFF: Thank you, your Honour. I hope you will appreciate
5 that I feel a little embarrassed to discuss matters of common
6 law dealing with highly sophisticated and technical aspects
7 related to that law. So I will try to deal with it as far as
8 I can but, as I said at the very beginning, I would rather
9 prefer my learned friend here to explain those technical details
10 which I am not able to do as he can. So, I will go through the
11 material, but if any question may arise, I would rather prefer
12 him to address that, as far as common law is involved, if you
13 agree with this approach.
14 THE PRESIDING JUDGE: Yes, that is acceptable. We have your
15 submission in terms of just presenting the argument. That is
17 MR. WLADIMIROFF: Thank you, your Honour. We were left with South
18 Africa, as I see it, before going into Australia. As we see it,
19 in South Africa law, all confidential oral or written
20 communication made between the accused and his legal
21 representative in the latter's professional capacity and which
22 are made for the purpose of obtaining or giving legal advice are
23 privileged and may not be disclosed in a Court of law, unless of
24 course there is a waiver.
25 Apparently, also in South African law, as you have
26 seen on page 165 of the material we have handed over to you,
27 statements obtained by the Defence from prospective Defence
28 witnesses are also privileged in that system. As my learned
1 friend can explain extensively to you, also in South Africa the
2 same system operates as in England. It all derives from the
3 same Act which has been in operation now for about 130 years.
4 Listening to the Prosecution, it seems to us that their main
5 argument is that during all these 130 years that Act has been
6 misunderstood by the courts and practising lawyers. We believe
7 that is not the right representation of the Act. We are
8 referring to Lord Denman's Act.
9 If I may proceed to Australia, it is a little bit
10 risky what I am doing because I am arguing about an area of the
11 law where we have a very learned experienced lawyer here who
12 will try to explain to you, that also in Australian law there
13 could have been a basis for the argument that the Prosecution
14 may ask the court to compel Defence lawyers to hand over
15 material such as previous statements.
16 Our understanding of their law is that in Australia
17 again the same system applies as in Great Britain -- it emerged
18 from the same system -- and that is that, indeed, you have the
19 right, you are permitted, to cross-examine a witness on his
20 previous statements, but the law does not provide for an
21 obligation for the other party, that is the Defence lawyer, to
22 produce those statements. We have found no evidence in the
23 material handed over by the Prosecution, nor in the case law,
24 that a Defence lawyer may be compelled by the court to disclose
25 such statements as long as these statements are not used as
26 evidence in court by the Defence lawyer. That is, in our
27 understanding, the leading principle here. So we feel that the
28 material handed over by the Prosecution does not support their
2 I may draw your attention to the annex B that we have
3 produced where it deals with Australian Evidence by Ligertwood
4 at page 222 when it says: "Therefore, the proof of a witness
5 may be privileged, but if that witness is called to testify he
6 or she cannot refuse to divulge his or her observations of the
7 events in question. But this should be done without disclosing
8 that this information is also contained in the privileged
9 proof. This simple distinction between the communication or
10 work-product and the information to which it may refer can be
11 easily misunderstood". Indeed, I am afraid, the Prosecution
13 JUDGE STEPHEN: I am sorry, what page is that?
14 MR. WLADIMIROFF: 222, your Honour. It starts with, "In the second
15 place", and then it read as I did before. The case law ----
16 THE PRESIDING JUDGE: Are we to reserve questions regarding what you
17 say to Mr. Kay?
18 MR. WLADIMIROFF: I think that is what I am asking you. But Mr. Kay
19 is quite willing to jump on his feet and to answer any of your
20 questions, if you want to raise it now.
21 THE PRESIDING JUDGE: I had a question about South Africa, I suppose
22 I have a question about this, but you can go ahead. We have
23 your submission. You can go through your submission and then
24 I will ask questions. Is that acceptable to you? OK.
25 MR. WLADIMIROFF: Thank you, your Honour. Looking to the Grant v.
26 Downs case, it has already been discussed so there is little to
27 add, I would say. I may note perhaps again that that case deals
28 with civil case, not under the right to remain silent or the
1 principles we have been discussing so far. So we feel that case
2 is hardly relevant, but if relevant, it certainly does not
3 support the position of the Prosecution -- on the contrary,
4 I would say.
5 The South Australian Evidence Act, the reference made
6 by the Prosecution to section 29, again it does not say that by
7 permission to use previous statements that permission also
8 arises a possibility for the court to compel the Defence lawyer
9 to produce such previous statement. It is not in this section.
10 It is our understanding that it is also not South Australian law
11 that the permission to use it in cross-examination arises an
12 obligation to produce it, when such previous statement is under
13 the privilege of the lawyer. We have explained to you that,
14 indeed, it is under that second type of privilege.
15 The reference made to the New South Wales provision,
16 Concise Evidence Law by Blazey and others, at pages 30 and 31,
17 as we understand it, those provisions that -- Judge Stephen
18 already discussed that matter as far as Section 36 was involved
19 -- does not refer to witness statements. But the other one,
20 I mean Section 35, as we understand the Section, is absolutely
21 not relevant to the case here at hand. We understand it to deal
22 with the position where one of the parties uses a document but
23 does not tender it. Then the other party may ask the Court to
24 compel the proponent to tender it. That is quite a different
25 position to what we are arguing here. So we also feel that the
26 Prosecution may not rely on this Article or this Section to
27 substantiate their case.
28 I had little time to look into the Malaysia ones, so
1 I think Mr. Kay will deal with that one. I will leave it where
2 it is. I would rather prefer to proceed to civil law systems.
3 Then I am more confident that I can tell you things I really
4 know what I am talking about.
5 There was an observation, your Honour, you made at the
6 very beginning of this argument today that did surprise me
7 because, if I remember that well, what you said was -- let me
8 see, I have the reference here.
9 THE PRESIDING JUDGE: If this were in a civil law system, we would
10 not have this discussion?
11 MR. WLADIMIROFF: Here it is. You said that each side will have the
12 statements of the other side, everything will be on the table.
13 I am afraid, your Honour, that that is not the case. Civil law
14 systems, as you are well aware, work with investigating Judges
15 to prepare a case. In that context, indeed, both parties will
16 have access to all statements in the file of that investigating
18 But, within that system, there is no provision that
19 says that the Defence lawyer has access to the file of the
20 Prosecution if that file contains material which is not in the
21 file of the investigating Judge. The Prosecution has no access
22 to the file of the defending lawyer if he has material that is
23 not in the file of the investigating Judge.
24 It has been written a lot about, could it be
25 theoretically possible that the Prosecution has more in his file
26 than the investigating Judge? If you try to consume all that
27 theory about it, it simply comes down to the point that if the
28 Prosecution is not presenting material in evidence at the moment
1 the trial has started, it is irrelevant.
2 So he should present it at the very beginning of the
3 trial. He should give it to the investigating Judge or when the
4 investigating Judge is handing over the file back to the
5 Prosecution and the Prosecution decide, "Will I prosecute? Yes,
6 I will", then by handing over the file to the Judge, it should
7 be in. It cannot be case that there is anything in the file of
8 the Prosecution he may relay only later on during the trial.
9 Handing over the file to the Trial Chamber means that the
10 Defence lawyer has still access to that file. If you look to
11 the other side, the Defence lawyer may have spoken to potential
12 witnesses. He may have made notes about it and may even have
13 written down verbatim what those witnesses have said. They may
14 even go that far that you take such a witness to a public notary
15 to have an official record made up of what the witness has
16 said. At no possible stage of the trial such material is
17 evidence. Even when are produced such a statement written down
18 by a public notary and that is the statement under oath, it will
19 not be evidence.
20 We can only produce evidence as it is listed in the
21 law and the lawyer may not produce evidence himself. He simply
22 cannot. So, working under the civil law systems means that you
23 have a lot of material in your file which can never grow into
24 evidence, whatever you do with it, unless -- unless -- you
25 produce it in court and the Judge may find reason to call the
26 witness and to hear him on that material, which material by
27 itself is not the evidence but evidence is then given by the
28 witness. So, even when you have a public notary who has written
1 down a statement under oath of the witness, the Judge will call
2 the witness because the paper itself is not evidence.
3 THE PRESIDING JUDGE: So what happens to the statement now you
4 produce it to the Judge and what?
5 MR. WLADIMIROFF: Then in our problem I would say you waive your
6 right to keep it privileged, then the Judge may not use it as
7 evidence because it is not listed in our law as evidence. In
8 French law, as far as I am aware, it is the same, in Italian law
9 it is the same, in German law it is the same too because you
10 have this system of limited evidence. It is not free evidence.
11 Not everything can be put in. It is a limited system. The
12 issue we are ----
13 THE PRESIDING JUDGE: May I ask just on this question then, if
14 I understand you correctly, the Defence does not have access to
15 the Prosecution file?
16 MR. WLADIMIROFF: No.
17 THE PRESIDING JUDGE: The Prosecution does not have access to the
18 Defence file?
19 MR. WLADIMIROFF: That is right.
20 THE PRESIDING JUDGE: The investigating Judge or a Judge does the
21 investigation, takes statements from witnesses, both for the
22 Prosecution and for the Defence, puts them in a file and then
23 each party has the statements of the other witnesses and only
24 those may you use.
25 MR. WLADIMIROFF: That is right.
26 THE PRESIDING JUDGE: Then, of course, if a witness testifies, then
27 you may use that statement to cross-examine, I suppose? I do
28 not know whether there is a rule, but at least you can do it.
1 MR. WLADIMIROFF: In practice, it comes to that effect indeed.
2 THE PRESIDING JUDGE: Even though it is a statement of a Defence
3 witness, you may take that statement, cross-examine the witness
4 and there is no specific rule allowing that, but that is the way
5 it is done.
6 MR. WLADIMIROFF: Right. So ----
7 JUDGE STEPHEN: Can I just ask you to elaborate on that?
8 MR. WLADIMIROFF: Yes, please.
9 JUDGE STEPHEN: Take the case where the Defence counsel has a witness
10 who for some reason has not been questioned by the investigating
11 Judge, and in the course of the trial he wishes to introduce the
12 evidence of that witness. Of course, he has a witness statement
13 which he has taken from that witness. I assume that he can
14 introduce that witness and have him give evidence, is that?
15 MR. WLADIMIROFF: What you would do, under these circumstances, is
16 the material you have in your file which you call a witness
17 statement -- what is in a word? We would say, "These are my
18 notes about what I know about that witness", but even if I went
19 to a public notary and have it in a form you would call, indeed,
20 a witness statement and we would call a witness statement,
21 though not a piece of evidence but a witness statement, what
22 I would do is ask the Judge permission to call for that
23 witness. Then the Judge may direct the Prosecution to call for
24 that witness, a witness on behalf of the Defence. It is very
25 odd but you would ask the Prosecution ----
26 JUDGE STEPHEN: You would ask the Prosecution to call him?
27 MR. WLADIMIROFF: Yes.
28 JUDGE STEPHEN: But the Prosecution will not know anything about what
1 he might say.
2 MR. WLADIMIROFF: They are an officer of the court in that respect.
3 The Court orders the Prosecution to call for a witness on behalf
4 of the Defence. The Defence does not have the right in civil
5 law systems to call for witnesses themselves.
6 JUDGE STEPHEN: What does the unfortunate Prosecutor do suddenly
7 confronted with someone he has never spoken to and knows nothing
8 about what he can say?
9 MR. WLADIMIROFF: He is only the instrument, your Honour. He calls
10 for the witness. The witness will appear in the court and will
11 be examined by the Defence.
12 JUDGE STEPHEN: I see. All right. We have got to that stage and he
13 is being examined by the Defence ----
14 MR. WLADIMIROFF: Right.
15 JUDGE STEPHEN: --- and that has concluded. The next stage is,
16 perhaps, that the prosecuting counsel can ask questions?
17 MR. WLADIMIROFF: Yes, to be more precise, in our system, the Judge
18 starts questioning the witness and then the party who asked for
19 that witness will question the witness after that and then, your
20 example, the Prosecution will be the last one.
21 JUDGE STEPHEN: My critical question then is this: at any and if so
22 what stage can either the Judge or the prosecuting counsel
23 demand from the Defence his notes or his sworn statement of that
25 MR. WLADIMIROFF: None, never, because it is in our system
26 irrelevant. I do make a distinction here. In your system, you
27 make a distinction between material that has probative value
28 related to the guilt or not and material that relates to, let us
1 say, impeachment purposes, but may not be related to the guilt.
2 That distinction is not in civil law systems. It may be
3 indirectly an issue, but it is not regulated by the law. There
4 is no case law about it, there is no statutory provision that
5 deals with that distinction. None whatsoever. So what happens
6 is that the question never arises that a Defence lawyer will be
7 compelled to open his file. The only exception you will find in
8 all jurisdictions over the Continent if that material is related
9 to the guilt evidence in our sense, for example, when he is an
10 accused himself or he is participating in any crime, if those
11 materials were the corpora at instrumenta delicti, if they were
12 part of the delicti itself or were instrumental for that crime.
13 But, as far as he has prepared his case by talking to people, he
14 cannot produce evidence by himself. He can only propose to the
15 court to have a witness called and then the statement in court
16 will be evidence, but what the lawyer prepares can never be
17 evidence and can never be asked and is never asked. There is a
18 wide understanding all over Europe that that material is not
19 evidence, can never become evidence and is a part of your
20 professional privilege.
21 THE PRESIDING JUDGE: What about the Prosecutor, his file, does the
22 Defence have access to his file ----
23 MR. WLADIMIROFF: No.
24 THE PRESIDING JUDGE: --- to the extent that material -- so it is
25 equal? Both sides, both the Defence and the Prosecutors stay
26 out of each other's file? They are limited to what is in the
27 investigating Judge's file?
28 MR. WLADIMIROFF: There is a difference, though. If the Prosecution
1 has material that is exculpatory for the Defence, he is under
2 the obligation to produce it. If he has material that says it
3 is (A) and the other one says it is A accent, he is free to
4 choose which one he will use.
5 THE PRESIDING JUDGE: But any material that was not gathered by the
6 investigating Judge, as opposed to, say, the Prosecutor who may
7 go out and do his own investigation and talk with people, that
8 is excluded from the Defence access, just as the Prosecutor
9 cannot get at the Defence's file, is that so?
10 MR. WLADIMIROFF: That is right, but the theory has it that at the
11 end of the day when he hands over the file to the Court, he
12 cannot have anything that has not been disclosed to the
13 Defence. So if he has after all, it is excluded, it is
14 inadmissible, because he should have disclosed it during the
15 pretrial investigations.
16 THE PRESIDING JUDGE: So there the cards are truly on the table.
17 MR. WLADIMIROFF: Yes, when you entered the trial, it should be on
18 the desk on the part of the Prosecution. There is no doubt
19 about it.
20 THE PRESIDING JUDGE: Is this by rule -- are there rules -- or is the
21 practice you have been talking about?
22 MR. WLADIMIROFF: It is practice. Sometimes you see in systems like,
23 for example, in Germany you have more specific rules because
24 Germans do do things very properly, so you will have detailed
25 rules about this. In the Netherlands, they are very vague, as
26 they are in France. But the general practice is that at the
27 very start of the trial the material should be there and
28 disclosed to the Defence. The Defence is not under an
1 obligation to disclose anything.
2 THE PRESIDING JUDGE: Thank you. That tells me, I suppose, that a
3 new practitioner would not have a whole lot of guidance about
4 how to proceed in the civil law system, but I have been a lawyer
5 too long to start over again. I think I will just stay here,
6 but I understand. That does not violate, I gather, the
7 accused's rights, does it, the fact that this kind of practice
8 is a practice and not by rule?
9 MR. WLADIMIROFF: You see, if you look at the literature, as I have
10 done, for example, the Dutch one, you will read that this
11 distinction which one could make between professional privilege
12 in the context of the lawyer-client relationship should not be
13 distinguished from the professional privilege as far as lawyers
14 acting on behalf of his client. There are very good examples
15 such as, for example, a doctor, if he wants to heal his client
16 or patient, how you say that, it may be necessary to put
17 questions to the family about diseases which are in the family
18 or to put questions to a third party, for example, a partner of
19 the patient with whom the patient had, for example, sexual
20 relations. There might be a sexual disease involved. Then the
21 doctor, to do his profession well, under the privilege of his
22 profession, should be able to put forward questions to those
23 third parties without the risk of disclosure.
24 It is exactly the same as we feel it here in Europe
25 with lawyers. You cannot do your job, prepare a case, if you
26 are not able to communicate with third parties when those
27 communications are not protected. We do not maintain, as is,
28 apparently, the case in common law, that very sharp distinction
1 between the material that may be used in terms of evidence
2 related to the guilt and material that is related to impeachment
3 purposes; you do not. You will see in court on the Continent
4 that in most cases the Judge will not allow either party to go
5 into areas which are not relevant for the guilt, solely for
6 impeachment purposes. So you do not separate your material to
7 these differences. It is all in one.
8 THE PRESIDING JUDGE: President Cassesse, I believe -- maybe I should
9 not attribute remarks to him -- at least in terms of our Rules,
10 I suppose, has said -- I will be corrected if I am wrong and
11 this certainly is not evidence -- that our Rules, although they
12 combine both civil and common law systems, are tilted towards
13 the common law system, and that is because in part our Statute
14 is tilted towards the common law system. I could be wrong about
15 what he said, but just from listening to you and looking at our
16 Statute and our Rules, it looks that way except for 98 where we
17 can produce evidence and, of course, on appeal the Appeals
18 Chamber may call for new evidence which is not in our common
20 MR. WLADIMIROFF: But, your Honour, your order -- 97, was it not?
21 No, it is not. 98, it says: "A Trial Chamber may order either
22 party to produce additional evidence", evidence.
23 THE PRESIDING JUDGE: I understand.
24 MR. WLADIMIROFF: Yes. So we have a lot of problems here, I would
25 say, if we use words which may have a different meaning in
26 different systems. That is one of the problems I am facing
28 THE PRESIDING JUDGE: In common law, I do not think that a statement
1 would be evidence except under certain circumstances, but anyway
2 you are talking about civil law.
3 MR. WLADIMIROFF: Those certain circumstances, your Honour, are
4 giving rise to the problems we are discussing now. That is the
5 problem we have. Anyhow, what I have done is presented to you
6 an opinion of a Dutch law Professor dealing with the issue very
7 clearly. He was asked in a case (in which one of my partners
8 was involved) whether he had the privilege of non-disclosure on
9 the basis of Article 218 of the Dutch Codes of Criminal
10 Procedures as far as communications with third parties were
11 involved. The answer on the last page is clearly, yes, you do
12 have a privilege of non-disclosure related to your communication
13 with third parties as long as you acted as lawyer on behalf of
14 your client.
15 In between, you will find, if you could read it, a lot
16 about the reasoning of it. But just come down to the material
17 I have handed over to you, that is the Dutch Code of Criminal
18 Procedure, you will find on page 219 an Article 106 which
19 relates to that Article 218, as I have said. It simply says
20 that everyone who is mentioned in Article 218 cannot be obliged
21 or cannot be compelled to hand over any material which is under
22 their privilege.
23 It is very clear language and that is what I already
24 told you. You cannot simply go to the Defence lawyer and say,
25 "Well, we have the file of the investigating Judge, but we feel
26 you might have more, give it". It is impossible. It is very
27 clear in the law here. Article 218 in Dutch law does not list
28 exactly who are under this privilege. It says that those who
1 are obliged to keep secret all that has been entrusted to them
2 or has become known to them in their professional capacity have
3 the privilege of non-disclosure. It is for the judge to decide
4 who is such a professional helper. It is established case law
5 in evidence that Defence lawyers are.
6 What you see in France and what you see in Italy is
7 exactly the same system. You have a provision in the law
8 dealing with those who are under that privilege. Then you will
9 see that you cannot simply seize materials from them, nor can
10 you order them to hand them over except for, and there you will
11 have exceptions. It is exactly in the same system. Though
12 I could not find all the details in France or in Italy that
13 quick, I have produced all those parts I could find that
14 indicate, indeed, that the system functions according to the
15 same line of thinking.
16 What I have done with the German one is -- that is
17 more extensive. As I have already said, the Germans go more in
18 detail and that is the reason why I gave it all. Their system
19 is exactly the same, but the Germans make a distinction between
20 material that has been entrusted to you and material that has
21 become known to you, because that distinction acknowledged the
22 distinction between the client-lawyer relation, then it has been
23 entrusted to you, and the other relations of a lawyer acting on
24 behalf of his client, then it has become known to the lawyer.
25 In German case law though, they accept that also under
26 specific circumstances in trial preparation also third parties
27 may entrust you with material. So, it is more than just
28 becoming known to you. That is the reason why I have given you
1 this decision of the Trial Chamber of Frankfurt. That case
2 dealt with an opinion of an expert witness which was given to
3 the Defence lawyer. The Prosecution asked the Defence lawyer to
4 hand over that opinion of the expert witness. The Court ruled
5 that the Defence lawyer was not obliged to hand over that
6 opinion to the Prosecution.
7 Whatever the purpose of that opinion was, whatever in
8 common law would be the argument, was that made for the full
9 purpose to be evidence once or was it predominantly produced by
10 the expert witness on request of the Defence lawyer to be used
11 in evidence or was it not to be used in evidence but just to
12 instruct the Defence lawyer, it is irrelevant in the continental
13 system. So, the ruling was very clear on it. You cannot simply
14 ask a Defence lawyer to produce material he has been given by
15 third parties in order to prepare his case, whatever the
16 preparation is, what the purpose of his preparation is.
17 I must admit that the material I have given to you
18 about Yugoslavia is quite extensive and I am not able to tell
19 you all about it. The only thing I can tell you is that in
20 Article 151 of the Codes of Criminal Procedure comes down to a
21 stipulation that says: "No one can ask a witness or a citizen
22 to produce evidence or to co-operate with an examination unless
23 provided by law". It is my understanding, and it is in the
24 textbook I have given you, that this expression of "no one is
25 obliged to co-operate unless there is a statutory provision you
26 have to".
27 If you look into the statutory provisions, you will
28 see under Article 226 of the Yugoslav Code of Criminal Procedure
1 that the materials and the work-products of the Defence lawyer
2 are protected. No one can compel him to disclose what is within
3 his professional privilege. That is what it says. So that is
4 all I can tell you about Yugoslavia. It seems to me, from what
5 I have learned about it, that it is the same pattern again; no
6 distinction between material to impeach or evidence. It is all
7 the same. It is protected. You are not compelled to produce
8 any evidence or any material.
9 If I may proceed to the more global view from the
10 European Court, I will do that by just passing along what I have
11 done with the other systems, that is, the Islamic criminal
12 justice systems. It is not very elaborate, but you will find in
13 that material it simply shows there is no reason to believe that
14 in those countries they take a different view. It seems to us,
15 reading that Article, that also there they accept the principle
16 of the right of the accused to remain silent.
17 Therefore, as we understand it, there is no reason to
18 believe that a lawyer acting under the same principle will have
19 to disclose. As far as we are aware, there are no disclosure
20 obligations whatsoever in that system. But I only can say these
21 are indications we have got from that Article, that we have no
22 positive information about that. That is all we can give you.
23 THE PRESIDING JUDGE: The Article indicated in the introduction that
24 it was going to discuss the rights of the accused at ----
25 MR. WLADIMIROFF: Very promising.
26 THE PRESIDING JUDGE: -- two stages, investigation and prosecution,
27 and all that you gave us was investigation.
28 MR. WLADIMIROFF: And there it stops.
1 THE PRESIDING JUDGE: It stops at 107?
2 MR. WLADIMIROFF: There is nothing else. We can give you the book,
3 if you like. There is more interesting stuff indeed, but the
4 author starts as very promising and then when the point would
5 come ----
6 THE PRESIDING JUDGE: He never addresses a word about the rights of
7 the accused at trial.
8 MR. WLADIMIROFF: No.
9 THE PRESIDING JUDGE: So he needs to understand that when ----
10 MR. WLADIMIROFF: Again, your Honour, it is a taste of it. The taste
11 of it is not that we have the feeling that in that system you
12 have a different approach.
13 THE PRESIDING JUDGE: No, not really because it just tells me about
14 the investigation stage. I was very curious to find out what he
15 had to say about the trial, but he ended it too soon.
16 MR. WLADIMIROFF: That is what he did. China, also nothing more than
17 indications, are there any indications to believe that in
18 Communist China the criminal justice systems takes a different
19 view? Are there reasons to believe that the Defence lawyer is
20 totally separated from his client, he may not have the same
21 rights, he is under larger pressure, he may have to disclose.
22 You cannot read anything about it directly, but if you
23 sense a taste of what you read, it seems to us, for example, if
24 you look into Article 80, the idea behind it seems to us that
25 also in the context of a search you cannot compel a Defence
26 lawyer to do anything that might assist the Prosecution to prove
27 the guilt of his client, the defendant and certainly not to
28 co-operate with the Prosecution for impeachment purposes.
1 The same flavour you will find in Article 84. You
2 will see there it comes down to the relevancy test. So we feel
3 also here no positive indication. We cannot show you how it
4 works, but there is no indication if you read their Code of
5 Criminal Procedure that there is a different system there, that
6 in those countries the lawyer has less rights than his own
7 client and, therefore, this privilege is mutilated. No
8 indication whatsoever.
9 THE PRESIDING JUDGE: Just one question on that, if you are going to
10 respond to these questions, Article 36 says: "The testimony of
11 witnesses must be subjected in the courtroom to the questioning
12 and cross-examination of both sides, the Public Prosecutor and
13 the victim and the defendant and the defender, and only after
14 the testimony of witnesses on all sides has been heard and has
15 undergone verification may it be used as a basis for determining
16 a case". This is even more foreign to me than the Dutch system
17 you described.
18 MR. WLADIMIROFF: Yes.
19 THE PRESIDING JUDGE: What does this verification mean? What kind of
20 verification is there? Is the witness subject to being required
21 to verify his testimony? Is it important that the Court have
22 all evidence to make a credibility assessment or not? I do not
23 know what that means.
24 MR. WLADIMIROFF: I cannot answer that question, but as we read it,
25 it seems to us that also here you have an indication that the
26 evidence must be presented in court and there is no such a
27 system that either party can be compelled to put forward
28 evidence that is not inside the court.
1 THE PRESIDING JUDGE: It goes on to say: "Should the Tribunal
2 ascertain that a witness has intentionally given false testimony
3 or concealed criminal evidence, it shall handle" -- let me just
4 finish the sentence -- "the matter according to law". Again
5 I was wondering whether the Court were able to make a
6 determination as to whether this witness has not been truthful
7 or whether he has withheld evidence and what was the procedure.
8 MR. WLADIMIROFF: Not -- I would say as you may understand this line
9 in the context of common law, that is, a separate issue has been
10 raised now how to deal with that witness in court on the basis
11 of impeachment. Impeachment, your Honour, as it seems to me,
12 after reading all the material and thinking about it, is an
13 issue that has been elaborated within the common law system.
14 THE PRESIDING JUDGE: So why are we looking at the civil law
15 systems ----
16 MR. WLADIMIROFF: Because it teaches us ----
17 THE PRESIDING JUDGE: --- if the whole -- let me just finish -- if
18 the issue as framed by the Prosecutor is whether a statement of
19 a witness for the Defence may be used by the Prosecutor for
20 cross-examination after the witness testifies. We are focusing
21 on a pure impeachment issue, not on a pretrial production of
22 witness statements. I understand from listening to you as much
23 as I can the civil law system is that the investigating judge
24 develops the case, gives it to the parties and that is the
25 evidence. If the whole notions of impeachment really are not
26 something that are considered in civil law, then maybe we need
27 to go back to our common law authorities. I understand your
28 position on those.
1 MR. WLADIMIROFF: I would say there is more than that, your Honour.
2 Although the impeachment has been elaborated in common law
3 systems, how it works in common law systems is limited by the
4 same principles as by which civil law systems and, apparently,
5 other systems are ruled. That is the limit is set by the
6 obligations of the parties. The Prosecution is under the
7 obligation to prove its case and the defendant is not under the
8 obligation to assist the Prosecution in that. That also relates
9 to matters of impeachment.
10 The issues may differ, impeachment of what, but the
11 principles, apparently, are all over the world the same. You
12 cannot separate a lawyer from his client. You cannot say that
13 the privilege of a lawyer can be separated from that first
14 understanding of the privilege by simply saying, "For
15 impeachment purposes, we do not recognise your privilege. You
16 are simply compelled to produce your evidence which you have in
17 your file". You will see it nowhere except for the United
18 States. That is what worries us because ----
19 THE PRESIDING JUDGE: I see it in Canada and ----
20 MR. WLADIMIROFF: No.
21 THE PRESIDING JUDGE: I see it in the opinion and we have a Canadian
23 MR. WLADIMIROFF: It is not a ruling, your Honour. It is an opinion
24 which was overruled by the others. It is not a ruling of the
25 court. It is not held in Canada.
26 So we feel that the issue, how far can the Court go in
27 compelling the Defence to assist the Prosecution for impeachment
28 purposes, is not a matter that can be dealt with by
1 jurisprudence. It is a matter of statutory rules. If this
2 Tribunal feels that that is appropriate (and we dispute that),
3 all Judges should decide that and add it to the Rules. Then we
4 have a very clear situation and everyone knows exactly where we
5 stand. It is not to the discretion of the Trial Chamber to
6 amend, effectively, the Rules to the extent we have been
7 discussing today, because then Article 6 would ----
8 JUDGE STEPHEN: If I may interrupt you, there is no question of
9 having to amend Rules. The simple situation is the Rules do not
10 deal with it. So that if one did order disclosure, it would not
11 be a question of amending the Rules, would it?
12 MR. WLADIMIROFF: I think it is, your Honour. After we have started
13 a trial, there was no indication in the Rules whatsoever that at
14 any stage of the trial, after we have started our case, after we
15 have presented our first two witnesses ----
16 THE PRESIDING JUDGE: Excuse me, Judge Stephen is trying to help
17 you. What he is saying is it is not in the Rules, it is not a
18 matter of changing the Rules. It is a matter of creating a new
19 Rule, so take that help.
20 MR. WLADIMIROFF: Yes. I was going to confer with more words, so
21 I am not going to address it again.
22 THE PRESIDING JUDGE: We do not have a Rule on hearsay. I know you
23 really have been concerned about that. That is a subject of a
24 decision that we entered as well as a concurrent separate
25 opinion, basically saying, well, the decisions speak for
26 themselves. We do not have a Rule on hearsay. We do not have a
27 Rule on leading questions, as I said. We do not have a Rule on
28 the scope of the evidence. We do not have a Rule on misleading
2 Believe me, when the Rules were prepared, we received
3 recommendations from countries and NGOs from all over the
4 world. I am sure, if the United States had its way, the Rules
5 would be much more specific, but they are not so specific
6 intentionally. I think that comes through in our decision on
8 We have 10 Rules focusing on the admission of relevant
9 and probative evidence, non-jury case, International Tribunal,
10 civil and common law systems trying to come together to resolve
11 questions involving international and humanitarian law. We have
12 been through this trial and we have handled it.
13 There is no Rule on how the Defence should proceed to
14 use Prosecution statements for cross-examination, but we have
15 allowed it. For example, there is no Rule that would say: You
16 have to show the witness the statement first to see whether or
17 not he adopts it and show the inconsistency to him, as is in
18 Section 9, I guess, of the Canadian rule and whatever the rule
19 is in Australia. We do not have a Rule like that. We have not
20 required that you operate that way. We have used the discretion
21 of the Trial Chamber in controlling evidentiary matters. It was
22 done by design, but I understand your position. You wish there
23 were more Rules.
24 MR. WLADIMIROFF: No, no, your Honour. There are two issues here,
25 perhaps three. We dealt with one, that is, how should we
26 understand how these things operate in all jurisdictions? Now
27 we come to another issue, how should it operate within this
28 jurisdiction and this Tribunal? What we are saying here is
1 that, reading the Rules, we are fully aware, for example, on
2 hearsay evidence, that reading your Rule 89 it is not in there
3 and there was some bottom line phrased in Rule 89. So we were
4 aware of the problem. That is the reason why we raised it.
5 That is ----
6 THE PRESIDING JUDGE: Except in your motion you were contending that
7 the Rules do not allow for the admission of hearsay evidence.
8 Our decision said that our Rules do not address that issue.
9 Yes, they do not mention hearsay.
10 MR. WLADIMIROFF: That is not what I am saying. What I am saying is
11 that we were fully aware by the text of Rule 89 of the hearsay
12 problem. We may not like it and that is the reason why we have
13 proposed our motion, but we were fully aware the Rules properly
14 informed us about the problem.
15 Dealing with disclosure, if you read the Rules about
16 disclosure, they are drafted in a way, written in a way, that we
17 read them as extensive. These are the Rules of disclosure
18 within this Tribunal.
19 THE PRESIDING JUDGE: Not requiring you to give ----
20 MR. WLADIMIROFF: No warning whatsoever that during the trial we may
21 be confronted with another understanding, a more extensive
22 interpretation, no, not an extensive interpretation, adding to
23 the Rules a new principle which is absolutely contradictory to
24 what we feel is in the Rules, because the Rules show a closed
26 The Prosecution is obliged to disclose because they
27 have to support their indictment, and they have to provide in
28 the Rules us with material. The Rules are very clear. We have
1 no obligation to provide them with any material at the pretrial
2 phase. As I said before, these Rules come from the same
3 principle, who has the burden of the proof and what is the
4 position of the Defence here? Apparently, you have chosen, the
5 Judges have chosen, or the system, as has been described in the
6 Rules, in the pretrial stage no obligation on the Defence, only
7 to give limited information related to special defences. As
8 I explained, after the trial has started, the principles are the
9 same and you kept silent on that issue. So we understood that
10 also the principle applies in trial and, therefore, no
11 disclosure obligation whatsoever.
12 THE PRESIDING JUDGE: May I ask you just a few questions that really
13 relate to the motion that was filed by the Prosecutor early on
14 for Defence witnesses' statements? You may recall that the
15 motion was filed because it was the position of the Prosecutor
16 that there was an agreement between the Defence and the
17 Prosecutor that each side would provide its witness statements.
18 MR. WLADIMIROFF: It was not ----
19 THE PRESIDING JUDGE: You disputed the existence of that agreement.
20 Of course, the Prosecutor has offered as Exhibit 349 under seal
21 a letter from the Defence listing its witnesses and indicating
22 which ones you have a statement and for which ones you have a
23 video. But, in any case, you have disputed that there was this
24 agreement to exchange witness statements, but you sent a letter
25 indicating for which witnesses you had a witness statement.
26 The Prosecutor then filed a motion asking for all of
27 the witness statements 30 days prior to the time that the
28 Defence begins to offer its evidence. The Trial Chamber denied
1 that motion saying that in the Prosecutor's motion they had
2 failed to show any reasons which would entitle them to those
3 witness statements, other than the need to have an "orderly
4 trial", as I recall.
5 So that was our decision at that time, but the motion
6 that we were acting on at that time was a request for all of the
7 statements 30 days before the witness testifies -- that sounds
8 like what the Crown was asking for in the Peruta case -- and we
9 denied that. We denied that. If you have indicated that there
10 was no agreement, then at least that is a different position
11 than the Prosecutor. But it is not really, this issue is not so
12 much related to the Prosecutor. As I see it, it is more related
13 to the Trial Chamber.
14 We, Judges, will have to resolve credibility issues.
15 That is what I like about Section 10 from Canada and a similar
16 Section from Australia that allows the Judge to produce it. As
17 a Judge, when I am called upon to resolve a credibility issue,
18 what I have is testimony from Prosecution witnesses, use of
19 prior statements by Defence counsel for impeachment purposes.
20 It is very helpful to me in some instances to take a look at the
21 witness and then listen to what else and try to resolve these
22 very difficult credibility issues. But now, for the Defence
23 witnesses, you have indicated that that should not be allowed
24 because it is privileged ----
25 MR. WLADIMIROFF: Yes, we should have known before.
26 THE PRESIDING JUDGE: -- it is the privilege in 70(A) which, you say,
27 carries on through trial. That is my problem.
28 MR. WLADIMIROFF: We should have known before, your Honour.
1 THE PRESIDING JUDGE: If you had looked at the decision carefully you
2 would have known before. Just because the Defence does not have
3 to provide witness statements 30 days before they begin their
4 case in chief, does not necessarily, it can be argued, mean that
5 they are not relevant once a witness testifies for impeachment
6 purposes in the interests of justice, in the interests of
7 resolving credibility. But I understand, you say that you
8 thought that was for all times, even though all they asked for
9 was 30 days prior. They did not ask to use them for impeachment
10 purposes. They said, "Give them to us 30 days before".
11 MR. WLADIMIROFF: Your Honour, it is not a matter of simply reading
12 your decision and then the case is settled. It is the whole
13 system as it is. The Statute, the Rules and your decision at no
14 stage gave any indication that during trial, after we have
15 started to present our witnesses, after we have selected our
16 witnesses, after we have informed you about our witnesses, who
17 will be called, that at the time of the third witness this
18 problem will be raised and settled in the way as has been
19 suspended now.
20 THE PRESIDING JUDGE: If the Trial Chamber decides to overrule an
21 objection that someone makes about the scope of redirect, do
22 they say, "Well, look there is no rule. We had no idea that you
23 were really going to tie us so tightly to this business of going
24 beyond the scope of cross-examination. There is nothing in the
25 Rules dealing with that. We had no idea that you were going to
26 conduct these trials in such a technical way". I would say look
27 at the 10 Rules. The 10 Rules guide us in trying to acquire the
28 evidence that we consider is relevant and probative.
1 MR. WLADIMIROFF: I have tried to explain, your Honour, that dealing
2 with the evidentiary rules we take a different position here.
3 If you read those Rules, you will understand exactly what the
4 problems are because you know they are not extensive. They are
5 not exhaustive. It is a clear picture. We are dealing
6 with ----
7 THE PRESIDING JUDGE: But we have a rule on a lawyer-client
8 privilege. It is in our Rules of Evidence. It says that
9 communications between a client and a lawyer may not be
10 disclosed at trial. It is right there. So if you interpreted
11 that Rule to mean that they could not be used for impeachment,
12 then that is the way that you read that Rule. Not a surprise,
13 it is just your reading of the Rule. It is right in here and it
14 is in the section on evidence.
15 MR. WLADIMIROFF: Your Honour, we have been arguing that all
16 communications between lawyer and client cannot be seen as a
17 whole principle as such. It is one representation of the same
18 principle. We do not understand Rule 97 in the context of the
19 Statute, that the Rule curtails the principle as laid down in
20 the Statute that professional privilege is more than only a
21 lawyer client relation. As yourself explained to the
22 Prosecution, it has two aspects. We believe that both aspects
23 are in the Rules because it emerges from the Statute.
24 THE PRESIDING JUDGE: I thought you said you did not have any
25 indication from the Rules. Now you are saying that you have an
26 indication, but the Rules were interpreting them wrong.
27 MR. WLADIMIROFF: We have no indication in the Rules that there was
28 any obligation to disclose beyond what has been extensively
1 describe in the Rules.
2 THE PRESIDING JUDGE: OK. So the Rules are there. You interpret
3 them a different way.
4 MR. WLADIMIROFF: No, because the Rules should be understood in the
5 context of the Statute. The Statute recognises, because it
6 refers to the International Covenant, that there is a privilege
7 and that a privilege is also including your contact with third
8 parties. Indeed, we were confirmed in that belief because the
9 Rules simply said that we are not to disclose anything with
10 third parties. It says we have only to disclose to the
11 Prosecution when we have a special defence and nothing more.
12 Then you may say, "Well, that was not in our mind when we
13 drafted these Rules", but that is very difficult for the
14 lawyers, your Honour, to understand what has been in your minds
15 when you wrote these Rules.
16 THE PRESIDING JUDGE: No, no, I did not say it was in our mind.
17 I say that we have a Rule on privilege. In the 10 Rules of
18 evidence, we have a Rule on privilege. The question is whether
19 or not that rule on privilege precludes the use by the
20 Prosecutor of witness statements once the witness has
21 testified. That is something that we can look at, but then you
22 have said look to Rule 70(A). That precludes the disclosure or
23 the use.
24 So you have found two Rules in our evidence that you
25 say support your position. I do not understand when you say
26 that there is nothing in the Rules that deals with this issue.
27 MR. WLADIMIROFF: I am making a distinction, your Honour, between
28 rules that show as not extensive and makes clear there is a lot
1 left to the discretion of the Judges. That is, for example, the
2 case when we talk about evidence. We also have Rules that show
3 as exhaustive, they give you all, and then we learn in the trial
4 that the Judges say, "Well, that is not what we meant, they are
5 not exhaustive". That is our problem because we feel that the
6 Rules on disclosure were exhaustive.
7 THE PRESIDING JUDGE: What I am suggesting to you is that if the
8 existing Rules that we have, and you say in your submission that
9 Rule 70(A) prohibits the disclosure, if we were to reach a
10 different result, it is a question of our interpretation of that
11 Rule. That is all. But I understand your position. I do not
12 know what else we can say, but you can continue and say it
14 MR. WLADIMIROFF: Indeed, it will come down to, will the Tribunal do
15 it the American way by understanding internal documents,
16 according to the federal rules -- that is what it all comes down
17 to -- or do you interpret Rule 70(A) as seems to be the case in
18 other common law jurisdictions and as seems to be the case in
19 civil law jurisdictions? That is simply what we are arguing
21 THE PRESIDING JUDGE: You want it to be interpreted to include
23 MR. WLADIMIROFF: Yes. We want it to be interpreted as is the case
24 in common law systems other than United States and the civil law
25 system, that is, all material in the file of the defendant which
26 is not produced as evidence is under the professional privilege.
27 THE PRESIDING JUDGE: OK. If it needs to be interpreted that way,
28 I understand, then to incorporate the privilege, the second type
1 privilege, the materials collected privilege.
2 MR. WLADIMIROFF: Because one cannot separate it. A doctor cannot do
3 his work ----
4 THE PRESIDING JUDGE: If that is true, Rule 70 says: "Notwithstanding
5 the provisions of Rules 66 and 67", and then it goes on to say,
6 "internal documents" etc., "are not subject to disclosure or
7 notification". OK?
8 MR. WLADIMIROFF: Yes.
9 THE PRESIDING JUDGE: OK. In Rule 66(A), the Prosecutor is required
10 to give witness statements. So, how can 70(A) mean to say,
11 notwithstanding what we said in 66, you do not have to give
12 statements? That is preposterous.
13 MR. WLADIMIROFF: Because, as I explained ----
14 THE PRESIDING JUDGE: That is not an American rule or a British rule
15 or --
16 MR. WLADIMIROFF: Once again, your Honour, the scope might be
17 different. The working of Rule 70, the scope of Rule 70(A) is
18 not identical for both parties, because Rule 70(A) may not set
19 aside a principle that is at stake in criminal cases, that is,
20 the Prosecution will have to prove its case. So Rule 70(A)
21 means, in the context of Defence lawyers, that our obligation
22 does not go beyond 67(A)(ii), or if he waive by triggering 67(C)
23 other material. 70(A) confirms that, indeed, what is in
24 67(A)(ii) is limited to a kind of information which is not
25 confidential, is not privileged, cannot be privileged. It is
26 simply passing names, places, times and that is it, not giving
27 any statement whatsoever. That is confirmed in Rule 70(A).
28 As far as the Prosecution is referring to Rule 70(A),
1 70(A) cannot set aside for the Prosecution that they have
2 another obligation there, and that is to support their
4 THE PRESIDING JUDGE: But then 67(C) is the reciprocal discovery. It
5 says: "If the Defence makes a request pursuant to Sub-rule
6 66(B), the Prosecutor shall be entitled to inspect any books,
7 documents photographs and tangible objects, which are within the
8 custody or control of the defence and which it intends to use as
9 evidence at trial". You say that that does not include
11 MR. WLADIMIROFF: No, because we do not intend to use them as
12 evidence at the trial.
13 THE PRESIDING JUDGE: So, it is supposed to make it reciprocal as it
14 relates to 67(A). Under 67 -- 66(A), rather, the Prosecutor has
15 to give statements but the reciprocity, as is reflected in 67,
16 means that the Defence does not have to give statements.
17 MR. WLADIMIROFF: Yes, your Honour, because (C) says very clearly
18 "which it intends to use as evidence at the trial"; as we told
19 you, we do not.
20 THE PRESIDING JUDGE: It sounds to me as if the Rules are there. It
21 is a question of interpreting them.
22 MR. WLADIMIROFF: Yes.
23 THE PRESIDING JUDGE: If it is privileged, you would say it cannot be
24 used for impeachment purposes. If it is privileged, it is
25 privileged and the Prosecutor nor the Court will have the right
26 to produce it. We have the Rule that you say supports your
27 privilege. It does not seem to me like it is an absence of
28 Rules; it is a question of how we interpret our Rules, if we
1 accept your position. If you say if it is privileged, it is
2 privileged, we do not even get to impeachment.
3 MR. WLADIMIROFF: Yes, and on the basis of the Rules we thought that
4 that privilege was respected because there were limited
5 disclosure Rules and those disclosure Rules presented themselves
6 as exhaustive.
7 If I may, your Honour, let me try to proceed. We have
8 gone lateral through the material. I think the material we have
9 handed to you on the rulings of the European Court of Human
10 Rights may speak for themselves. The Funka case is a leading
11 case on the Continent. I may draw your attention to paragraph
12 41 of that case dealing with the merits of the complaint. The
13 leading opinion you will find in paragraph 44. We have given
14 you the whole decision so you will be able to see it in its own
15 context. When it comes to the bottom line, again that you
16 cannot compel someone to assist the prosecuting party.
17 THE PRESIDING JUDGE: The right not to assist the prosecuting party,
18 is that founded in also Article 21 dealing with
19 self-incrimination? That is the position that you took when the
20 motion was filed pretrial for all of the witness statements, 30
22 MR. WLADIMIROFF: That is right, your Honour.
23 THE PRESIDING JUDGE: Yes, 21(iv)(G), "... shall not be compelled to
24 testify against himself or to confess guilt". That is what
25 those decisions stand for?
26 MR. WLADIMIROFF: 21 is almost the same, substantially it is the same
27 as Article 14 of the International Covenant. The leading
28 opinion is that the Covenant is substantially the same as
1 Article 6 of the European Convention, because Article 6, section
2 2, is understood by the European Court as appears from the Funka
3 case in the same way.
4 THE PRESIDING JUDGE: You do not see a difference between the use of
5 witness statements before -- or the Prosecutor acquiring them or
6 having the right to obtain witness statements before a witness
7 testifies and after the witness testifies in terms of the
8 self-incrimination issue, you do not see a difference?
9 MR. WLADIMIROFF: From the principle, I do not see any difference
10 whatsoever. The principle applies before the trial starts and
11 when the trial is ongoing.
12 THE PRESIDING JUDGE: Rule 26.2, I gather, the American rule, which
13 stands out among all of them, which Mr. Niemann says is -- what
14 did he say -- forward thinking or something, I do not know,
15 progressive -- maybe it is retrogressive or whatever -- that
16 rule provides that the witness statements shall be provided by
17 the Defence after the witness testifies. In your judgment, does
18 that violate the right to be free from self-incrimination, that
20 MR. WLADIMIROFF: Yes, because it simply means that the lawyers are
21 no longer working on the sole instruction on his own client; the
22 client is not protected there when the Defence lawyer is not
23 taking the necessary precautions to avoid such violations.
24 Again, if you are aware of such a rule, then the statutory
25 provisions in the United States do not compel a lawyer to break
26 his professional secrecy because he can prepare the case in a
27 different way to avoid that he will have material he will be
28 compelled to produce. It is how the system works, how you
1 should judge it.
2 THE PRESIDING JUDGE: The Nobles case, which considered this very
3 issue, really has two parts to it. In the Nobles case in 1976,
4 the Supreme Court held that it did not violate the right to be
5 free from self-incrimination, that is, the use of this
6 investigators's report. Thereafter, in 19 whenever it was, 77
7 or 78, was when rule 26.2 of the federal criminal procedure was
9 So, what you had at that time was a decision by the
10 United States Supreme Court finding no violation of
11 self-incrimination before there was a rule in the rules of
12 criminal procedure.
13 MR. WLADIMIROFF: Yes, your Honour, but ----
14 THE PRESIDING JUDGE: But the other issue dealing with waiver,
15 I have already questioned Mr. Niemann about. I think that does
16 not help us much because there the investigator actually made
17 testimonial use of the report. But, as to the secondary holding
18 in Nobles, that is a finding by the Supreme Court before 26.2
19 was enacted. So the lawyers did not have 26.2 to hold up and
20 say, "Oh, this is what we can do".
21 MR. WLADIMIROFF: Might that not be explained, if I can? This is
22 going far beyond what I should do, but I understand that the
23 scope of the Fifth Amendment is not identical to what you will
24 find in Article 6 of the European Convention. That has also, as
25 I see it, much to do with the system of advocates under the
26 European Convention and as the system operates in the United
28 That is the reason why I started to explain that under
1 the continental system or, at least, the system which is under
2 the European Court of Human Rights, and I recognise the same in
3 those common law systems that have derived from the English
4 system, that the advocate, the barrister, or the advocate as it
5 is on the Continent, has a different position. The profession
6 functions not identical to the American lawyer.
7 Therefore, it might be explained that the
8 understanding of the Fifth Amendment in relation to how the Bar
9 in the United States functions may have reasoned that decision.
10 I really do not know, but that is my sense, because the
11 instructions under which a barrister works are so different to
12 what an American lawyer can do or should do or should not do.
13 If I only refer, for example, to the Codes of Conduct, they
14 differ so much. That might have reasons why within the limits
15 of the Fifth Amendment they have decided.
16 But whatever may be the reasons, I really cannot
17 explain this to you. I only say that the international standard
18 is that of the International Covenant. Yugoslavia is in
19 Europe. There we have this European Convention. These two
20 guidelines point to a quite different direction, whatever may
21 have been the case in the United States.
22 THE PRESIDING JUDGE: I suppose we will have to check, in 1976
23 I would guess the right to be free from self-incrimination had
24 been pretty well interpreted and probably more rights than exist
25 now, because at that time you had Miranda and all of those
26 rights. Now they have been going back. But in 1976, if I were
27 to guess, it was at its higher point and it started coming
28 down. But, at least in 1976, if we look at Nobles we probably
1 can got some guidance, but I do not know. We are talking
2 about ----
3 MR. WLADIMIROFF: But has there not always been a distinction between
4 the lawyer and the client? I do remember, for example, all the
5 discussions about paying your lawyer which raised a large
6 problem in the United States if the source of that payment was
7 in the context of crimes while, for example, on the Continent
8 and in England we take a different view here.
9 THE PRESIDING JUDGE: What, that you can do that or you cannot?
10 MR. WLADIMIROFF: Under certain conditions, you can be paid indeed.
11 THE PRESIDING JUDGE: In the United States you might lose it.
12 MR. WLADIMIROFF: Again we fear that the lawyer and the client are
13 ultimately one; you cannot simply say, "No one is going to pay
14 me, therefore, you will not have a lawyer".
15 I may draw also your attention, your Honours, to the
16 Niemietz case. There was a complaint about the search of his
17 law office. He claimed that would give rise to a breach of
18 Article 8 of the European Convention. I may draw your attention
19 to paragraph 37 where the European Court held that the search
20 impinged on professional secrecy to an extent that appears
21 disproportionate in the circumstances. It has in this
22 connection to be recalled that where a lawyer is involved, an
23 encroachment on professional secrecy may have repercussions on
24 the proper administration of justice and, hence, the risk
25 guaranteed by Article 6 of the Convention. Again, you see, the
26 link always back to Article 6 and the right not to incriminate
27 yourself in the broadest sense also relating to the lawyer
28 acting on behalf of his client.
1 THE PRESIDING JUDGE: What did they mean when they said
2 "disproportionate in the circumstances"? Are there any
3 circumstances where they can break into a lawyer's office?
4 MR. WLADIMIROFF: Yes, when the lawyer ----
5 THE PRESIDING JUDGE: If there is not evidence of an ongoing crime,
6 is there anything ----
7 MR. WLADIMIROFF: If the lawyer is involved in the crime himself or
8 when those materials are the corpora et instrumenta of the crime
10 THE PRESIDING JUDGE: So they were finding that that was not the case
11 there and that is why it was disproportionate.
12 MR. WLADIMIROFF: It was not clear. The Prosecution has also
13 referred to equality of arms which, I must say, was a very
14 stunning argument. I have never read ever before that the
15 Prosecution is arguing that they are entitled to the same
16 treatment as the Defence is. I think this is a very close
17 reading of what is really at stake here.
18 As far as the Prosecution is referring to the phrase
19 that the accused is entitled to obtain the attendance and
20 examination of witnesses on his behalf, subject to the
21 restriction that this be under the same conditions as witnesses
22 against him, that phrase is so logical if you know about the
23 civil law system, because you have to ask the Prosecution or the
24 Court to call the witness. You cannot call the witnesses
25 yourself. That is the problem.
26 So, if the Prosecution has the right, according to the
27 law, to call for witnesses and you, as the Defence lawyer, have
28 not, you are dependent on a Court order or the co-operation of
1 the Prosecution. Then the Convention says it would be highly
2 unfair, at least in the context of a fair trial, if you were not
3 able to call witnesses under the same conditions as witnesses
4 against you. It makes sense in logic, if you understand the
5 system. But it had nothing to do that if we are able to impeach
6 Prosecution witnesses on material that has been handed over to
7 us that the Prosecution may argue, well, then we have the right
8 to compel the Defence to hand over material to us to impeach
9 their witnesses, absolutely no basis in the Convention
11 THE PRESIDING JUDGE: What was meant, before you leave that, on page
12 175 of the Law and Practice of the European Convention on Human
13 Rights and the European Social Charter, where it said that
14 the ----
15 MR. WLADIMIROFF: Help me again, your Honour, you were referring to
16 -- I see, yes.
17 THE PRESIDING JUDGE: On page 175 it says: "The European Court of
18 Human Rights stated the principle of equality of arms is only
19 one feature of the wider concept of a fair trial which also
20 includes the fundamental right that criminal proceedings should
21 be adversarial. The right to an adversarial trial means in a
22 criminal case that both Prosecution and Defence must be given
23 opportunity to have knowledge of and comment on the observations
24 filed and the evidence adduced by the other party". Then they
25 were challenged. The French -- what system was that ----
26 MR. WLADIMIROFF: Absolutely clear to me because if you read the case
27 law of the European Court on this, what you will see is that,
28 for example, in Austria there were provisions in the law that
1 excluded the defendant from access to certain parts of the
2 file. In France, you will see the same. These cases have been
3 brought to the European Court. They ruled, obviously, that you
4 should have the same access to the file as the Prosecution.
5 There are no cases, none whatsoever since 1950 when
6 this all started, that ever the Prosecution complained that they
7 had no access to the file of the defendant. That is
8 outrageous. That would not be the case. The file is the file
9 of the court. We have the system of a file. There is no file
10 in common law systems. The file of the court is the file made
11 by the investigating Judge or the file handed over by the
12 Prosecution to the Court. Both parties should have the same
13 access to that file and there is no file of the Defence lawyer
14 involved here. It has nothing to do with that.
15 THE PRESIDING JUDGE: The file is what has been collected, but it
16 includes statements and both sides have access to it. In our
17 adversarial common law system, we depend on the lawyers kind of
18 to develop that, except that our Rules have a little taste of
19 the civil law system in that they kind of put the Judge in there
20 to elicit material, but you say it is illicit evidence and
21 statements are not evidence.
22 MR. WLADIMIROFF: No, as long as the Defence lawyer does not present
23 that material as evidence. We do accept within the context of
24 the common law a taste of the Rules of this Tribunal. For
25 example, if we show to a witness a document and we do not tender
26 it, we accept that the other party will say that the Court will
27 have to rule that we will have to tender that, because by
28 showing it to the witness in court we used it in court.
1 THE PRESIDING JUDGE: But we do not have a Rule on that.
2 MR. WLADIMIROFF: No, but in the setting of what is happening here in
3 this Court, we accepted that both parties, where there is no
4 file, have to co-operate in finding what are the facts in this
5 case. That is quite opposite to what the Prosecution is
6 asking. They simply want access to our private file on material
7 we are not going to use.
8 THE PRESIDING JUDGE: Have you completed your presentation? Mr. Kay
9 has a number of questions and then, the Prosecution, do you have
10 rebuttal? I think we had better stand in recess for 20 minutes.
11 MR. WLADIMIROFF: Let me just see, your Honour. I think I have dealt
12 with everything. Yes, I may refer your attention to the
13 Brandstetter case. We have given the decision, so I think it is
14 self-explanatory. That is all I had to say, your Honour.
15 THE PRESIDING JUDGE: We will stand in recess for 20 minutes. Then,
16 Mr. Kay, are you going to present then the common law aspects or
17 do we just ask questions about common law?
18 MR. KAY: Your Honour, yes, if I perhaps give a quick few minutes and
19 then field the questions, that might be the best way?
20 THE PRESIDING JUDGE: We will stand in recess for 20 minutes.
21 (4.04 p.m.)
22 (The Court adjourned for a short time)
23 (4.25 p.m.)
24 THE PRESIDING JUDGE: Mr. Kay, you may be seated. We are waiting for
25 some of our staff. Mr. Kay?
26 MR. KAY: Yes. Your Honour, might I start, first of all, by
27 reminding the Court that in the original motion by the
28 Prosecution in April of this year that they referred in their
1 argument that witnesses may be put on the stand to testify by
2 the Defence and we would be withholding the statement from
3 opposing counsel and the Court.
4 It was very much in the mind of the Prosecution that
5 these statements should be disclosed for impeachment purposes
6 when they filed their motion earlier in the year. In the
7 response filed by us, aware of that use of them, in paragraph G
8 I stated that they would be primarily used as a device of
9 impeachment. The Court may recollect that in oral argument
10 I also referred to that matter.
11 So, when the Court judgment was issued on 7th May,
12 there was no matter in relation to the decision that indicated
13 that statements would eventually be used at this stage of the
14 trial potentially as an impeachment device. So, aware of the
15 arguments, we embarked on the course of preparation of
16 collecting our witnesses together with all the baggage of
17 previous statements collected by lawyers not now on the team.
18 We believed that the judgment we were given on 7th May gave us
19 an absolute position in relation to that disclosure. It had
20 been presented in this way by the Prosecution and denied by the
21 Trial Chamber.
22 We dealt with common law systems, but in the course of
23 today the Malaysian Rules have been supplied to me. I know his
24 Honour Judge Vohrah will be familiar with these. But in section
25 126 of the Evidence Act of 1950 of the laws of Malaysia -- I do
26 not know whether that has been served on the Court just now --
27 it clearly states: "No advocate shall at any time be permitted,
28 unless with his client's express consent, to disclose any
1 communication made to him in the course and for the purpose of
2 his employment as such advocate by or on behalf of his client,
3 or to state the contents or condition of any document with which
4 he has become acquainted in the course and for the purpose of
5 his professional employment, or to disclose any advice given by
6 him to his client in the course and for the purpose of such
7 employment". Then there are the well-known exceptions which are
8 apparent in every jurisdiction, that illegal purposes and crime
9 or fraud will not be so protected.
10 Illustrations are given within Section 126 and Section
11 128 is a section that deals with privilege not being waived by
12 volunteering evidence: "If any party to a suit gives evidence
13 therein at his own instance otherwise, he shall not be deemed to
14 have consented thereby to such disclosure as is mentioned in
15 Section 126; and if any party to a suit or proceeding calls any
16 such advocate as a witness, he shall be deemed to have consented
17 to the disclosure, only if he questions the advocate on matters
18 which but for such question he would not be at liberty to
20 Then Section 129 deals, in fact, with circumstances
21 when confidential communications may be disclosed: "No one
22 shall be compelled to disclose to the court any confidential
23 communication which has taken place between him and his legal
24 professional adviser unless he offers himself as a witness, in
25 which case he may be compelled to disclose any such
26 communications as may appear to the court to be necessary to be
27 known in order", and here I underline "to explain any evidence
28 which he has given, but no others".
1 So this Statute, in our submission, envisages the
2 concept of legal and client professional privilege, but there
3 may be circumstances when an explanation is required by the
4 Court when that be waived. The kind of circumstance that I am
5 thinking of is if a defendant was to say, "My lawyer advised me
6 not to answer any questions at the police station and that is
7 why I gave no answer". In those circumstances, invoking section
8 129 of the laws of Malaysia, the Court would be entitled to an
9 explanation as to whether that was the advice actually given by
10 the lawyer. It is one that would require an explanation, but
11 the overall umbrella section is that of Section 126.
12 So the position here we say is identical in most,
13 well, in all common law countries, bar the United States of
14 America where they have specifically enacted through their
15 parliament or legislature rules that otherwise vitiate the
16 normal position within common law countries.
17 THE PRESIDING JUDGE: Let me ask you one question then. It seems to
18 me that we have agreed, based on the material that you have
19 given me, that there are two privileges, a communications
20 privilege and a litigation privilege. The litigation privilege
21 is one that protects disclosure of confidential communications
22 between lawyer and client. Then the other one, material
23 collected for litigation which is referred to in the United
24 States, perhaps, as the work-product doctrine, is the one that
25 is unique to common law and it extends to products such as
26 witness statements. This I get from the Australian Evidence
27 discussion as well as Cross & Tapper.
28 MR. KAY: Yes.
1 THE PRESIDING JUDGE: The Malaysian then, 126, clearly deals with the
2 first, the lawyer-client privilege, is that correct?
3 MR. KAY: If we look at the language carefully, "... for the purpose
4 of his employment as such advocate by or on behalf of his
5 client, or to state the contents or condition of any document
6 with which he has become acquainted in the course and for the
7 purpose of his professional employment", we would say that that
8 extends to communications by third parties to the lawyer acting
9 on behalf of the client.
10 THE PRESIDING JUDGE: Even though the rule, I gather, in England and
11 in Australia but to a certain modification is phrased the same
12 way, that they have interpreted two different privileges, one
13 materials collected and the other attorney-client.
14 MR. KAY: It may well be that in the separation of the concepts as a
15 way of dealing with circumstances that may arise for waiver or
16 disclosure, the concepts have been divided. But the essential
17 privilege is that of client-lawyer, and the lawyer being
18 indivisible from the client when he deals with the client as
19 well as third parties. That is the way we look at it and
20 understand it.
21 The Court has been concerned with the Canadian case of
22 Peruta. I must say I read that rather differently and I turn
23 back to the headnote.
24 JUDGE STEPHEN: I am sorry, when you say "differently", differently
25 from what?
26 MR. KAY: Her Honour Judge McDonald, as I understood it, believed
27 that was a set of circumstances that may be more applicable
28 under the American system than under the more limited common law
2 THE PRESIDING JUDGE: No, I think that Judge Stephen and I, from our
3 questions, may have a difference as to what is said, but this is
4 not the American rule ----
5 MR. KAY: No.
6 THE PRESIDING JUDGE: --- at all.
7 MR. KAY: I was listening to the argument and wondered whether your
8 Honour was believing that Canada came closest to the United
9 States in their system.
10 THE PRESIDING JUDGE: No, I do not think so. I think that the
11 Prosecutor cannot get the witness statements. It is just the
12 decision, that portion of it, that talks about access on page 19
13 and page 20.
14 MR. KAY: In a way, that is a practical problem. If the Defence use
15 a document in court through a witness as a memory refreshing
16 document, which I know your Honour referred to, or any other
17 document, they then cannot keep their privilege when they have
18 disclosed it in evidence in that form. It then would become a
19 statement within the proceedings to be used as a tool, as
20 I understand section 10, sub-section 1 and sub-section 2, of the
21 Act in Canada.
22 THE PRESIDING JUDGE: Except that the Defence did not use the witness
23 statements to refresh. The Crown wanted them before the Defence
24 began. The trial Judge said "yes", Appeals said "no" and then
25 there is discussion. We have all read it and we can talk about
26 it. So there was no using of the witness statement for
28 MR. KAY: It seems to have been a peculiar case where everything that
1 could have gone wrong did go wrong ----
2 THE PRESIDING JUDGE: That was my comment too.
3 MR. KAY: --- and the heat in the courtroom must have been extreme,
4 but there we are.
5 THE PRESIDING JUDGE: That did bring it closer to home, to the United
6 States, you know. I thought as I read it I was back there.
7 MR. KAY: Yes, we are dealing I think with Quebec here.
8 THE PRESIDING JUDGE: Be careful.
9 MR. KAY: I did not say any more.
10 THE PRESIDING JUDGE: No, we have a Judge from Quebec.
11 MR. KAY: But there we are.
12 THE PRESIDING JUDGE: So, anyway, go ahead.
13 MR. KAY: Your Honour, those were the observations I wanted to make
14 on our position which I hope the Court found helpful. If I can
15 deal with any other questions?
16 THE PRESIDING JUDGE: Just a couple of questions, if I may. You gave
17 us Cross & Tapper, 8th edition. Reading it on page 474 it says,
18 last full paragraph, right before "Confidentiality and
19 Waiver": "If a third party is consulted by a legal adviser for
20 the purposes of litigation, perhaps as a potential witness, a
21 question may arise as to the extent to which privilege can be
22 claimed in respect of communications to him. Since there is no
23 property in a witness, the third party is compellable. He is
24 then free to testify, subject to the ordinary operation of legal
25 professional privilege, which will not protects documents
26 submitted to him for expert advice, not otherwise protected. It
27 is dubious how far the old privilege in respect of witness
28 statements can survive the modern practice of requiring
1 disclosure in advance of trial."
2 What does all of that mean? We got it last night and
3 some cases are referred to in the footnote, but I have not
4 pulled them, if I can even find them.
5 MR. KAY: Yes. If the Defence consult a handwriting expert and
6 submit documents to him and he retains possession of copies of
7 the documents, the Prosecution know that you are not going to
8 call him as you have not served him as an expert. They may then
9 go to that witness and use the materials that you still left
10 with the expert as against you. I know, I have been there and
11 I have had it.
12 So, it is something that, in those circumstances,
13 because there is no property in the witness and you have not
14 retained the documents, it may well be the case that they can
15 use that material in relation to their case as against you. If
16 you have submitted specimens of signatures and not taken the
17 copies or the originals back with you, the police could, in
18 those circumstances, use that evidence if they came into their
19 possession. So, it is a rather extreme set of circumstances and
20 one where evidence comes the way of the Prosecution, rather than
21 being part of the formal collection of evidence.
22 THE PRESIDING JUDGE: Is the witness statement yours? If you take a
23 statement from a witness, witness X, could that witness ask for
24 that statement?
25 MR. KAY: He could ask for that statement ----
26 THE PRESIDING JUDGE: He says, "Give me a copy of my statement".
27 MR. KAY: --- and retain possession of it.
28 THE PRESIDING JUDGE: Then what happens if that witness is called by
1 you ----
2 MR. KAY: Yes.
3 THE PRESIDING JUDGE: --- and the Prosecutor wants to cross-examine
4 on a prior, inconsistent statement -- alleged inconsistent
6 MR. KAY: As he would be your own witness and that was your
7 statement, it would not be something that was subject to
8 disclosure. You would say, "That is our material and that is
9 subject to legal professional privilege".
10 THE PRESIDING JUDGE: If he had the statement and he wished to say,
11 "Judges, you know, I wish to impress upon you that this is not
12 an inconsistent statement; I am willing to give you this
13 statement", that is not something the witness could give us?
14 MR. KAY: No. I would call legal professional privilege, unless it
15 was in my interests and was a consistent statement, then I would
16 waive my privilege. But that is our right to waive the
18 THE PRESIDING JUDGE: In your materials you say that the privilege
19 relies in 70(A) of our Rules.
20 MR. KAY: Yes.
21 THE PRESIDING JUDGE: Is that correct?
22 MR. KAY: Yes.
23 THE PRESIDING JUDGE: Is that a privilege that only the Defence has
24 or does the Prosecutor have that privilege, in your view of Rule
26 MR. KAY: Both sides have that privilege, but the difference here is
27 that the Prosecution have to disclose statements to support the
28 indictment. The Prosecution have to disclose statements if they
1 want us to meet a case and be able to deal with a case as part
2 of a continuing trial.
3 If I can just make this observation? We have not
4 received full statements from the Prosecution in relation to all
5 these witnesses. Many witnesses were on short proffers, four or
6 seven lines, and some gave evidence for a day or two and we
7 cross-examined blind. There has not been a full statement given
8 to us for every witness, as would be the system under my
9 jurisdiction where you would disclose and have an orderly list
10 of statements with the content as full as possible of what a
11 witness was proposed to say. There are no procedures within our
12 Rules here that make that explicit.
13 THE PRESIDING JUDGE: That is what the Defence had asked. The
14 Prosecutor had asked, I think, in their pretrial motion as well
15 that if you did not have a statement, that you give a proffer of
16 what the witness would say. Then you said that the statements
17 that you had had been taken in Serbian, then translated into
18 Dutch, then into English ----
19 MR. KAY: Yes.
20 THE PRESIDING JUDGE: --- and they would not really be very helpful
21 because of the interpretation problems.
22 MR. KAY: Yes.
23 THE PRESIDING JUDGE: But they had asked for a proffer also. Anyway,
24 70(A) protects both of them, but because of the burden you would
25 say that it does not protect them as to statements?
26 MR. KAY: There is a necessity for them under the Rules to disclose
27 those statements in support of the indictment. We have not had
28 all those actually. There is outstanding correspondence
1 relating to a number of those witnesses in support of the
2 indictment whose statements we were not given.
3 THE PRESIDING JUDGE: The reciprocal discovery rule that we have,
4 Rule 67(C), do you read that as requiring the Defence to provide
5 witness statements?
6 MR. KAY: No. Those are products, material, to be used in evidence,
7 data, that kind of thing. We always had that in mind, that
8 triggering that you produce all your photographs, you produce
9 all your other documents that you were going to use as evidence
10 which we see as being the key phrase underpinning that, and it
11 being a trigger mechanism permits disclosure and access for us
12 to the Prosecution data in terms of material, measurements,
13 whatever, and would then impose the same trigger disclosure upon
15 THE PRESIDING JUDGE: In Canada, this Rule 10, I think, of the
16 Canadian Evidence Act talks about how the statement should be
17 produced and how you should show it to the witness, etc. We do
18 not have a rule like that in our 10 rules of evidence. Do you
19 think that that in any way affects the Defence counsel's right
20 to cross-examine Prosecution witnesses with respect to prior
22 MR. KAY: I think that is a very much a technical procedural matter,
23 how we go about it in the courtroom. When I put previous
24 statements, Mr. Wladimiroff, Miss de Bertodano did the same, we
25 always put that statement before the witness to give them an
26 opportunity to look at it. Just as a matter of observation
27 here, a large number of those statements were not disclosed to
28 us by the Prosecution, but we obtained by access to the German
1 file and the German proceedings. Therefore, they arose in our
2 hands from the proceedings in Germany where statements had been
3 supplied for the Prosecution authorities there, and we used them
4 within these proceedings for the purposes of inconsistency.
5 THE PRESIDING JUDGE: If the Chamber were listening to a witness and
6 perhaps a member of the Chamber were to consider that, one of us
7 or all of us had a question about the witness's veracity and it
8 became apparent that there was a prior statement, you do not
9 believe that the Trial Chamber would have the inherent authority
10 under either 54 or 97 -- I always get 97 and 98 confused,
11 I think it is 98, the power to produce, request product -- 98,
12 do you think that we would then have the power to say to the
13 lawyers: "Look, we have a question about this and we understand
14 there is a prior statement. We would like to have a look at it,
15 not the entire statement but only that portion that deals with
16 the witness's testimony"?
17 MR. KAY: This I believe is phrased for the purpose of producing
18 additional evidence in relation to the proceedings themselves.
19 If the Trial Chamber thought that it was necessary for a doctor
20 to be called by the Defence because we were making assertions of
21 a medical nature, you could order us to back it up with medical
22 opinion. That is why it is connected with your power to summons
23 witnesses and order their attendance. The phrase "additional
24 evidence", in our submission, is far too limited to include that
25 specific document of great interest to the Defence, and
26 ordinarily covered by privilege being the witness statements or
27 proofs of evidence that we have taken.
28 THE PRESIDING JUDGE: I had a question on the South African or at
1 least the portion of the law we were submitted.
2 MR. KAY: If your Honour could give me the annex, which particular
3 annex it is?
4 THE PRESIDING JUDGE: I cannot even find the section.
5 MR. KAY: Annex C from the International Encyclopaedia of Laws.
6 THE PRESIDING JUDGE: Yes, page 164. Of course, this deals with the
7 Prosecution or the Prosecutor, but they refer to a witness
8 statement privilege. It says: "Written statements obtained from
9 the police for possible witnesses are privileged until after the
10 final conclusion of the trial. This is known as witness
11 statement privilege. The privilege belongs to the Prosecutor
12 and he may waive it. In certain circumstances the Prosecutor
13 must abandon the privilege, for example, where the written
14 statement is used to refresh the memory of the Prosecution
15 witness in the witness box. The Prosecutor must also hand the
16 written statement over to the Defence if there is a serious
17 discrepancy between the written statement of the Prosecution
18 witness and his oral testimony." Then 92(K) is cited in the
19 footnote also which I have not looked at, but it appears that
20 there is something called statement privilege and it appears
21 just from looking at this that that is not something that anyone
22 would get. But if there is a serious discrepancy between the
23 written statement and the Prosecution witness there may be a
24 requirement that it is handed over to the Defence. I was
25 wondering why this sentence is in here if it is not
26 automatically always handed over to the Defence?
27 MR. KAY: In fact this is long entrenched. We now have very formal
28 discovery rules as a result of miscarriages of justices
1 involving certain cases in England. In the good old days even
2 before I started practise and when I just started practise there
3 was a great deal of playing cards close to the chest and what
4 you were entitled to get and what you -- although we had a
5 formal system of statements, whether you would actually disclose
6 other material where a witness had said something entirely
7 inconsistent in the old days was open to doubt. That was
8 gradually opened up and improved, so that there was much more
9 improved Prosecution disclosure. There was a rule of conduct
10 that if the advocate, the barrister, conducting the case was
11 aware of a previous inconsistent statement that you would then
12 disclose that as a Prosecutor to the Defence, so that you had
13 done your duty. Whether you got to see everything in the old
14 days was another matter and one probably was not given
15 everything anyway. Again that was applying privilege, even to
16 the State which is a very rare concept.
17 THE PRESIDING JUDGE: Yes, because in 484 it says "statements
18 obtained by the Defence from prospective Defence witnesses are
19 also privileged."
20 MR. KAY: Yes.
21 THE PRESIDING JUDGE: We have whatever this is, six pages, and this
22 is the first time I have read anything about South African law.
23 In any case, it seems to me that both are privileged but then
24 there is something known as this witness statement privilege.
25 Then under (C) which discusses the witness statement privilege
26 it is provided that the Prosecutor must hand the written
27 statement over to the Defence if there is a serious discrepancy
28 between the written statement of the Prosecution witness and his
1 oral testimony. There is no mention anywhere of the Defence.
2 MR. KAY: No.
3 THE PRESIDING JUDGE: It does not say, well, this does not apply to
4 the Defence. I was just asking you. I will check for myself.
5 MR. KAY: It did not apply to the Defence and never has under any
7 THE PRESIDING JUDGE: How was that? Under what rule is that?
8 MR. KAY: Again it is this principle of who bears the case, who has
9 to present the evidence.
10 THE PRESIDING JUDGE: Paragraph 481 does not deal with the burden of
11 proof and who has the burden. That perhaps is pretrial. What
12 481 seems to be talking about is at trial if it appears there is
13 a discrepancy, then it has to be produced. Then in 484 it says
14 that the Defence also has this privilege and I see nothing in
15 here to say that this obligation to produce if there is a
16 discrepancy shown applies to the Prosecutor only, because it is
17 entitled "Witness Statement Privilege" but may be so.
18 MR. KAY: I can advise your Honour it does, and that has been the
19 underpinning of all theory developed from England for 100
20 years. It has been the underpinning of the system.
21 THE PRESIDING JUDGE: So then you would agree with Mr. Wladimiroff,
22 I suppose, that Rule 26.2 of the Federal Rules of Criminal
23 Procedure violate the right to be free from self-incrimination?
24 MR. KAY: Yes.
25 THE PRESIDING JUDGE: And it also violates the materials collected or
26 litigation privilege, I gather.
27 MR. KAY: It is interesting that none of the European States who are
28 signatories to the European Convention on Human Rights have
1 undertaken such a system, although it has been in force in
2 America for many years. The nearest we have got to it is a
3 recent Act within Great Britain involving disclosure by the
4 Defence of the issues in the case, not the statements. The
5 Court may remember the arguments that ----
6 THE PRESIDING JUDGE: I do.
7 MR. KAY: --- we had and Judge Vohrah was interested in the matter and
8 aware of these recent developments. But it is not the witness
9 statement, it is not privileged material. It is merely the
10 issues in the case, whether you are running self-defence,
11 intoxication or whatever.
12 THE PRESIDING JUDGE: I recall you said there was a move towards this
13 more open discovery. If our Rules, though, provide for
14 reciprocal discovery and if our Rules for reciprocal discovery,
15 that is 67(C), include statements, would not that put our whole
16 discussion of this issue in a different frame?
17 MR. KAY: It is interesting in that it is a trigger discovery that
18 event (A) causes event (B). We have never been in that position
19 within this case. We have not triggered discovery under those
20 rules. So that even if they would apply and we were in that
21 position in this case, it has not happened. We have not arrived
22 at that stage.
23 THE PRESIDING JUDGE: I understand, but even in the United States in
24 the Federal Rules of Criminal Procedure there is an obligation
25 on the part of the Defence to trigger this reciprocal
26 discovery. In other words, the Defence has to ask for more than
27 what they would normally get. Then there is a triggering of
28 reciprocal discovery, almost verbatim as our Rules in 67(C).
1 What I am saying is, if that is privileged, if that is
2 privileged, then there is no way for the Rules to require its
3 production even if the duty is only triggered by your asking for
4 information. For example, if 67(C), the reciprocal discovery,
5 were to read, "If you dare to ask for anything under 66(B), then
6 you have to provide communications between your client and
7 yourself", that certainly would not be proper, would it?
8 MR. KAY: No. We have always been conscious of the trigger rule, and
9 no witnesses in cross-examination by us were asked to disclose
10 extra statements or anything like that. One does not know the
11 boundaries, but you do not want to trigger something and put
12 yourself in a bad position. So we have conducted this case very
13 carefully in that regard. Any material that we obtained came
14 from the Prosecution or from our own resources. We deliberately
15 sought not to pull the trigger just in case.
16 THE PRESIDING JUDGE: So if in fact the privilege that the Rules
17 recognise is in 97, the privilege that the Rules recognise is
18 the lawyer-client privilege, in bold type right in the Rules,
19 then certainly it was not the intention, it should not have been
20 the intention, to require that privileged information be
21 produced by 67(C), should it? If it requires statements to be
22 produced, then at least if you assume that the Judges knew what
23 they were doing when they drafted the Rules, then it does not
24 apply to a privilege protected under 97?
25 MR. KAY: It is specifically taking out whatever material there would
26 be within 67(C).
27 THE PRESIDING JUDGE: It is memoranda, reports and any other evidence
28 upon which ----
1 MR. KAY: If we look at this logically, we could not use internal
2 communication as between the client and ourselves. It would be
3 inadmissible material and it would not be material that would
4 fall within 67(C). So it is outside anyway.
5 THE PRESIDING JUDGE: That is why Justice White says in his
6 concurring opinion in Nobles that this kind of rule, this work
7 product rule, is not privileged; it is merely a restriction on
8 discovery, because it is not the kind of thing that you would
9 offer. It is not evidence anyway.
10 MR. KAY: Yes. I think that that is clear under the Rules as we
11 have, as your Honour points out, Rule 97.
12 THE PRESIDING JUDGE: But you say the privilege is in 70(A). OK.
13 MR. KAY: Looking at the status of 70(A) and what it refers to
14 documents, our statements that we have taken, we would say,
15 would fall within that status of reports, memoranda or internal
17 JUDGE STEPHEN: I have one question. It has been said on behalf of
18 the Prosecution that there is waiver of privilege involved in
19 the giving of evidence, and that the giving of evidence by a
20 witness waives the privilege that attaches, in my view anyway,
21 to the witness statement. What do you say as to that?
22 MR. KAY: The two are totally unconnected, in our submission. It is
23 the document that is the subject of the privilege. The witness
24 gives evidence and in giving evidence offers himself for
25 cross-examination. If we were so foolish enough, and I only use
26 this in a general sense, to say, "Have you made a statement to
27 us entirely consistent with what you are telling the Court now",
28 I have done it, I have put it in. But you do not hear, I hope,
1 advocates asking that kind of question. That would be a waiver
2 of privilege on exactly the same lines as the client
3 saying, "Oh, the solicitor told me not to answer any questions
4 to the police", very dangerous if you are introducing questions
5 and getting that information out because you have partially
6 waived privilege. Of course there is this concept as well of
7 partial waiver. It does not go to full waiver, this partial
8 waiver of privilege. It is interesting how all the
9 jurisdictions apply that theory of partialness, rather than
10 blanket waiver once you have gone so far down a particular
11 course of conduct, how important they view the client-lawyer
12 relationship for the efficacy of their business.
13 JUDGE STEPHEN: Thank you.
14 THE PRESIDING JUDGE: Mr. Niemann, do you have anything in reply,
16 MR. NIEMANN: Thank you, your Honour. Yes, very briefly. I just
17 wish to clear up one matter, at least in relation to what
18 documents we have discovered. We have given all the documents
19 that are required to be given under the Rules in relation to
20 supporting material and so forth. Any proffers that were given
21 or proofs of evidence that were given relate to witnesses where
22 there was no statement. We deny there is any matter outstanding
23 where we have any obligation to disclose.
24 Your Honours, the issue of whether the word "evidence"
25 mentioned in Rule 67(C) included statements was raised.
26 Certainly, if the use of the word "evidence" there does not
27 includes statements, then the obligations of the Prosecutor
28 under Rule 68 is vastly reduced in terms of his obligation to
1 disclose, because large amounts of statements have been
2 disclosed in consequence of Rule 68. It would seem that we have
3 interpreted our obligations much more widely than we thought we
4 had to do.
5 In addition to that, your Honours, under Rule 47 there
6 is a reference there also to evidence to provide reasonable
7 grounds, 47(A). It would seem that in a similar vein if
8 evidence does not include statements, then no obligation arises
9 there either.
10 In our submission, your Honour, to apply an
11 interpretation that evidence relates only to something that is
12 given once the witness enters the witness box, is a very narrow
13 interpretation indeed. Your Honours, in our submission, that is
14 simply not the case because there are numerous provisions that
15 one could point which make reference to things which constitute
16 evidence and they are much wider than simply the witness
17 entering the witness box and giving oral testimony.
18 JUDGE STEPHEN: The great pity is that we cannot blame an absent
19 draftsman for any defects in these Rules!
20 MR. NIEMANN: Your Honour, I was not prepared to.
21 JUDGE STEPHEN: Which Judges usually do.
22 THE PRESIDING JUDGE: In some of the materials that were submitted,
23 however, there is reference to statements being evidence under
24 certain circumstances, that is, they are used for impeachment
25 purposes but if it can be demonstrated -- well, let us see,
26 I cannot find the Rule but I thought that I read that there were
27 certain circumstances where the statement itself could then be
28 introduced, so it then would become evidence.
1 MR. NIEMANN: Yes. Your Honours, an example of that may be where it
2 is used to prove an inconsistency against a witness, the
3 document which may otherwise not have been evidence or could be
4 described not as evidence would so become. So it is simply too
5 narrow to refer to evidence as being only that which is admitted
6 as evidence before the Chamber and limited only to that. In my
7 submission, the use of the term "evidence" has a broader
8 interpretation and must be given a broader interpretation.
9 THE PRESIDING JUDGE: I was referring to 1140.8 of the Criminal Law
10 of South Australia where it says: "A prior inconsistent
11 statement proved under Section 29 is not evidence of the truth
12 of the contents of the document but only relates to the credit
13 of the witness." Then it cites cases. "However, the contents
14 of such document may be proved as evidence of its truth under
15 Section 34(C), 45(A) or 45(B) or by any other permissible
16 means. Where a witness who is a party admits making the prior
17 inconsistent statement, that statement becomes evidence of the
18 facts contained in it by virtue of that admission. Where the
19 witness is not a party the contents of the document only become
20 evidence of its truth where he admits them in such a way which
21 its contents become part of his evidence." Anyway, very
22 technical issues of evidence, but it appears that under certain
23 circumstances the statement could be evidence. We are
24 supporting to that rule.
25 MR. NIEMANN: That is our submission. It may or it may not be
26 depending on the circumstances, but it is certainly too narrow
27 simply to say that it only applies once the witness gives
28 evidence. Another matter, your Honours, is that essentially our
1 submission is this, that the full ambit of this whole issue of
2 privilege is catered for in the Rules. It is catered for in
3 Rule 70(A) and it is catered for in Rule 97. They are Rules to
4 which we submit your Honours should return if looking for an
5 interpretation of what is to apply in these circumstances. We
6 urge your Honours that in so doing your Honours apply the
7 principle as is enunciated in paragraph 89(B) in the question of
8 interpretation. At no stage am I saying, in my submission, that
9 the law of the United States should be given preference to any
10 other jurisdiction. All I am saying is that in terms of the
11 most progressive piece of legislation that appears to exist or
12 the most advance system in terms of how the law has developed is
13 that, and we would urge your Honours applying Rule 89(B) ----
14 THE PRESIDING JUDGE: I am one of three Judges. Do you want to pick
15 something else.
16 MR. NIEMANN: I emphasise again, your Honour, that I am not promoting
17 this system because of that. I am merely promoting it because
18 it is the best formulation of the principle and the most advance
19 formulation of the principle.
20 So, if your Honours are to interpret the provisions,
21 interpret the Rules which are specifically provided here and
22 provide the full ambit, in our submission, of the privilege
23 available in applying Rule 89(B), then this is the best indicia
24 your Honours can go to in terms of formulating a principle to
25 apply in the course of cross-examination.
26 THE PRESIDING JUDGE: Thank you, Mr. Niemann. Mr. Kay?
27 MR. KAY: There is just one matter. I know Mr. Niemann is resorting
28 I think now to flattery of the Court in relation to his
2 THE PRESIDING JUDGE: I think he is flattering the wrong person
3 because he is not looking at a group of American Judges. He is
4 looking at a group of three.
5 MR. KAY: Flattery and charm perhaps. Rule 47 is nothing to do with
6 this. This concerns the state of mind of the Prosecutor, that he
7 in his own mind is satisfied there is sufficient evidence
8 because he has researched the case. The operative word in 67(C)
9 is "as" evidence that it is going to be produced in the course
10 of the proceedings and become evidence in the case. The witness
11 statement is not evidence in the case if we do not choose to use
13 The Court knows that underpinning all this within
14 these Rules is the obligation to consider the general principles
15 of international law, and this is where I say Mr. Niemann is
16 using flattery because it seems the United States system that he
17 is advancing is actually out of line with all the other systems
18 internationally. It is on a limb, perhaps for particular
19 reasons relating to their jurisdiction and the conduct of cases,
20 but there is underneath all this the obligation on the Court to
21 determine these issues consonant not with national principles or
22 any particular nationality, but principles of general
23 international law. That is what we say we have been working
24 under in relation to this particular matter and the judgment of
25 7th May.
26 THE PRESIDING JUDGE: It is just that if you have indicated that
27 there is a move towards wider open discovery, and it is moving
28 along in England but it is moving, then to the extent that 26.2
1 reflects an opening up of discovery, not discovery but an
2 opening up of material for both sides in the form of allowing
3 for the use of witness statements and the tendering of witness
4 statements once they have testified, then it might be
5 progressive. The Rule in 1978, maybe it was ahead of its time
6 and maybe other countries are moving along slowly, but you are
7 correct, we do not apply the rules of national systems. We will
8 be looking at our Rules, I suppose, to see what there is in our
9 Rules that apply to the positions of the parties.
10 MR. KAY: Yes. We limited ours under our reform saying that it could
11 go no further without breaching those principles, which was when
12 all these matters were discussed under the Royal Commission that
13 I know Judge Vohrah knows about, and that was as far as the
14 progression was able to go.
15 THE PRESIDING JUDGE: Thank you, Mr. Kay. Mr. Niemann?
16 MR. NIEMANN: Nothing further, your Honour.
17 THE PRESIDING JUDGE: We will stand in recess for 10 minutes and then
18 return with the final ruling on this issue.
19 (5.12 p.m.)
20 (The court adjourned for a short time).
21 (5.25 p.m.)
22 R U L I N G.
23 THE PRESIDING JUDGE: On September 19th 1996 the Trial Chamber ruled
24 that the prior statement of Witness W was not privileged and was
25 subject to disclosure to the Prosecutor for impeachment
26 purposes. The Trial Chamber has reconsidered that ruling in the
27 light of the written submissions and oral arguments of counsel.
28 By a vote of two to one, with the Presiding Judge dissenting,
1 the Trial Chamber reverses that ruling and finds that such
2 statements are privileged and not subject to the disclosure of
3 the Prosecutor. A decision shall be issued in due course.
4 So we will continue with Witness W tomorrow in closed
5 session. Very good, 10 o'clock. We are adjourned until that
7 (The court adjourned until the following day).