IN TRIAL CHAMBER II
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge David Hunt
Judge Fausto Pocar
Mrs. Dorothee de Sampayo Garrido-Nijgh
31 October 2000
DECISION ON DEFENCE MOTIONS FOR REJOINDER
Office of the Prosecutor:
Mr. Dirk Ryneveld
Ms. Peggy Kuo
Ms. Hildegard Uertz-Retzlaff
Mr. Daryl Mundis
Counsel for the Accused:
Mr. Slavisa Prodanovic and Ms. Mara Pilipovic for the accused Dragoljub Kunarac
Mr. Momir Kolesar and Mr. Vladimir Rajic for the accused Radomir Kovac
Mr. Goran Jovanovic and Ms. Jelena Lopicic for the accused Zoran Vukovic
The Trial Chamber is seised of the Defence of the Accused Mr. Kovac Request for Rejoinder, filed on 25 October 2000 (Request); the Prosecutors Response to the Defence of the Accused Mr. Kovac Request for Rejoinder, filed on 25 October 2000 (Response); the Defence of the Accused Mr. Kovac Reply to the Prosecutors Response to the Defence of the Accused Mr. Kovac Request for Rejoinder, filed on 26 October 2000 (Reply); and the Prosecutors Response to the Defence of the Accused Mr. Kovac Reply to the Prosecutors Response to the Defence of the Accused Mr. Kovac Request for Rejoinder, filed on 27 October 2000 (Second Response).
In the Request, the accused Radomir Kovac (accused) appears to request leave from the Trial Chamber to call three witnesses in rejoinder, pursuant to Rule 85(A)(iv ).1 Two of these his witnesses D .K. and D.M. - have already testified during his case; the third person Mrs. Slavojka Kovac - is the wife of the accused. The accused asserts that new issues were raised in the rebuttal evidence of prosecution witnesses FWS-87 and FWS-191, justifying calling the three witnesses in rejoinder. The assertions of the accused centre on the existence of a letter that two of the prosecution witnesses, FWS-87 and A .S., are alleged to have written to him.
The Prosecutor opposes the Request. She asserts that the rebuttal evidence did not give rise to new issues that would entitle the accused to call witnesses in rejoinder.
In the Reply, contrary to what seems to be his submission in the Request, the accused appears to contend that Mrs. Kovac is to be called not as a rejoinder witness, but as a witness for his case-in-chief, which has not yet been closed.
The Prosecutor opposed the Reply, submitting that the accused, in light of the earlier representations made by the Defence to the Trial Chamber, cannot now claim that he is entitled to a continuation of his case-in-chief.
2. Procedural history
The history of the proceedings related to the present problem is as follows. During the Prosecutors case-in-chief, counsel for the accused in cross-examination asked witness FWS-87 whether she remembered sending a letter co-written to the accused with A.S. through a third person from Montenegro to Foca. 2 At the end of the letter there was alleged to have been a heart drawn with an arrow piercing it, SACn arrow or Klanfa.3 FWS-87 replied: I dont remember that.4 In relation to the questions put to FWS-87 on the letter, the Prosecutor thereafter , brought the issue of Rule 96 (requiring that in sexual assault cases the accused shall satisfy the Trial Chamber in camera that evidence of the victims consent is relevant and credible) to the Trial Chambers attention.5 The accused, in response to the concern expressed by the Prosecutor, stated that , since he received a negative response from the witness on the letter, he decided not to investigate the matter any further and that the Prosecutor therefore has no reason for concern.6 During the cross-examination of witness A.S., the accused asked her whether she and FWS-87 together sent a letter with two hearts drawn at the bottom of it to Foca.7 A.S. replied that she never sent such a letter.8 The Prosecutor put no related questions to FWS-87 and A.S. during re-examination .
During the accuseds case-in-chief, witnesses D.K. and D.M. testified in relation to this alleged letter during examination-in-chief. Witness D.K. testified that the accused, before he got married, once told her that FWS-87 had written him a postcard or a letter.9 On the occasion of a visit to the accused and his wife, his wife said, jokingly, displaying that postcard, Here is the girl 87 writing to him.10 The Prosecutor cross-examined witness D.K. on the alleged letter.11 The witness appeared to recall a letter or postcard FWS-87 sent to the accused that the latter mentioned to her before his wedding as well as a postcard FWS-87 sent to the accused that the latters wife showed to the witness after their wedding.12 This witness testified that the postcard appeared to have been sent from abroad.13 The Prosecutor put it to the witness that The fact is, there was no postcard, was there, from France or anywhere?14 Witness D.K. replied that there was in fact such a postcard, but that she cannot really remember where it was from.15 During examination-in-chief, witness D.M. testified that the accused had referred to a letter he received from FWS-87 who was in Montenegro at that time, saying that she is happy and satisfied.16 She never saw or read the letter herself.17 During cross-examination, the witness, in response to the questions put by the Prosecutor , repeated that she never saw or read the letter herself, and that she doesnt know what happened to the letter.18 The Defence did not re-examine either D.K. or D.M. on the letter.
The Prosecutor sought to call certain witnesses in rebuttal in relation to evidence given by witnesses for the accused concerning matters which had not been put to witnesses called by the Prosecutor, but which should have been put to them in accordance with Rule 90(H)(ii).19 That evidence was of an alleged relationship between the accused and FWS-87 which, if it existed , was inconsistent with the charge that he had enslaved her. On 28 September, the Trial Chamber granted the Prosecutors application, but it was made clear that the evidence to be given in rebuttal concerning that alleged relationship was limited to those matters which had not been put to the Prosecutors witnesses in cross-examination.20 Those matters had been identified in general terms in the Reply filed by the Prosecutor in relation to its Motion. They did not include the alleged letter.
During the examination-in-chief in the rebuttal case, and, in accordance with the Decision on Rebuttal Case, the Prosecutor put no questions relating to the alleged letter to witness FWS-87. The Defence, cross-examined the witness, and asked her whether it was correct that at the time you worked in that coffee bar a certain Panta came from Foca and that you sent a letter to Kovac from him on two sheets of paper that were torn out of a notebook?21 The witness responded by saying no.22 The letter referred to was further described by the counsel for the accused as having a heart, drawn at the end, pierced with an arrow, which said Klanfa, the nickname of the accused.23 The witness was unable to explain why she testified during the case-in-chief that she couldnt remember having written such a letter, but she insisted that I never wrote any letter and No, it is not true that I wrote any letter.24 The Prosecutor did not re-examine the witness.
The accused Radomir Kovac contends, firstly, that he is entitled to a case in rejoinder because he would have to lead evidence on the absolute new assertions in relation to the alleged letter the negative answers during the rebuttal case instead of the answer I dont remember in the case-in-chief made by witness FWS-87. In relation to Mrs. Kovac, the accused states that she has direct knowledge about the alleged letter, since she personally destroyed the letter. The accused alleges that this new matter was raised by the Prosecutor during FWS-87s evidence in rebuttal .25
The accused contends, secondly, that he is in any event entitled to call Mrs. Kovac not in rejoinder to the Prosecutors case in rebuttal but as part of his case-in -chief.26 He says that he had agreed to the Prosecutors case in rebuttal proceeding before he had completed his case , which has not yet been closed.27
As to the first contention, the Trial Chamber does not accept that any new issue was raised by the answer of witness FWS-87 in her evidence in rebuttal, when cross -examined, that she had not written the alleged letter. The accused had already interpreted the answer she gave in her earlier evidence that she did not remember writing it as a negative response. It then became the duty of the accused to call any evidence he had upon that issue relating to the alleged letter during his case-in-chief. The evidence given by witnesses D.K. and D.M. related to that letter . Although it is asserted that their evidence in rejoinder will not be a repetition of the evidence they gave before, no attempt has been made to identify what that evidence would be.28 Further, it was open to the accused to call his wife, in addition to D.K. and D.M. during the Defence case. The fact that witness FWS-87 has now said that she did not write the letter has not altered the situation which the accused faced in his case-in- chief.
Moreover, even if the answer given by witness FWS-87 had raised a new issue during the rebuttal evidence, it was not one raised by the Prosecutor, whose counsel very properly asked her no questions in relation to the alleged letter. It was raised only in cross-examination by the accused, and in the face of a warning which had previously been given to his counsel by the Trial Chamber during a discussion of his entitlement to a case in rejoinder. During the Status Conference held on 16 October, it was pointed out to counsel that such entitlement arose only if the Prosecutor, not the accused, raised a new issue during her case in rebuttal.29
The argument by the accused that Rule 85(A)(iv) gives him an absolute entitlement to lead evidence in rejoinder is unsustainable. It is the obligation of the Prosecutor to lead all of her evidence in her case-in-chief. It is only if the accused raises a new issue in his evidence that she may lead evidence in rebuttal. She has no absolute entitlement to lead evidence in rebuttal merely because of Rule 85(A)(iii ). Rule 85(A)(iii) does not deal with her entitlement; it merely deals with the order in which evidence is given where an entitlement to lead such evidence exists . It is the same with evidence in rejoinder and Rule 85(A)(iv).
As to the second contention by the accused, that he has not yet closed his case, it is necessary to examine the circumstances in which it was agreed that the Prosecutor could proceed with her case in rebuttal at the stage when she did. The last accused to lead evidence was the accused Zoran Vukovic (Vukovic). One of the issues in his case was a medical one which required further testing to be done and reports to be provided upon the basis of the results of that testing. Because the request for a medical examination had been made by Vukovic very late in the case, the Trial Chamber was faced with a hiatus in the evidence when it was made clear by counsel for all the accused that the only evidence remaining to be given on behalf of all three accused related to that medical issue (which concerned only Vukovic). It was suggested to counsel for the accused that they consent to the Prosecutor proceeding with her case in rebuttal, as it was entirely unrelated to the evidence remaining to be given on behalf of Vukovic. At that stage, counsel for Radomir Kovac raised his clients entitlement to a case in rejoinder, when it was pointed out to him that it would depend entirely upon whether a new issue was raised in the Prosecutors case in rebuttal. At no stage did he mention calling evidence from Mrs. Kovac in his case-in-chief.30
The Trial Chamber would not have suggested, nor would it have permitted, the Prosecutors case in rebuttal to proceed if there had been any suggestion that the case for the accused Radomir Kovac had effectively not been closed. That was made very clear during that discussion, and the Prosecutors case in rebuttal proceeded upon that agreed basis. The somewhat ingenious submission now made by the accused that his case was still open to call evidence upon the same issue flies in the face of that agreed basis, and the Trial Chamber regards it as purely opportunistic.
The Trial Chamber considers that the arguments put forward in the Defence Request and Reply should be rejected.
For the foregoing reasons, the Trial Chamber hereby
Grants leave to the Defence to file the Reply and to the Prosecutor to file the Second Response,31 and
Rejects the Defence Request.
Done in English and French, the English text being authoritative.
Judge Florence Ndepele Mwachande Mumba
Dated this the thirty-first day of October 2000,
At The Hague,
[Seal of the Tribunal]
1- Rule 85 in relevant part provides:
(A) Each party is entitled to call witnesses and present evidence. Unless
otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial
shall be presented in the following sequence: (i) evidence for the prosecution;
(ii) evidence for the defence; (iii) prosecution evidence in rebuttal;
(iv) defence evidence in rejoinder [...].
2- T 1821 (5 Apr 2000).
5- T 1904 (6 Apr 2000).
7- T 2053 (19 Apr 2000).
9- T 5581 (13 Sept 2000).
11- T 5629-5630 (14 Sept 2000).
12- T 5629 (14 Sept 2000).
15- T 5629-5630 (14 Sept 2000).
16- T 5667 (14 Sept 2000).
18- T 5689-5690 (14 Sept 2000).
19- Rule 90(H)(ii) reads: In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.
20- Prosecutor v Kunarac and Others, Decision on Rebuttal Case, Case IT-96-23-T & IT-96-23/1-T, 28 Sept 2000, pars 8-9.
21- T 6132-6134 (23 Oct 2000).
22- T 6134 (23 Oct 2000).
25- Reply, p 3.
26- Reply, pp 2-3.
27- Reply, p 2.
28- The Trial Chamber directed counsel to provide a summary of any evidence which it was proposed the witnesses would give in rejoinder (T 6143 (23 Oct 2000)). That has not been done.
29- T 6075. Counsel said: I agree with what Judge Hunt just said: If some new issues are raised, I believe the Defence should have to right to a case in rebuttal. Judge Hunt replied: But that can only be determined after weve heard the prosecution case in reply, that if they raise something, not you, that if they raise something new, then obviously you would be entitled, in fairness, to meet it. At T 6076, counsel for the accused agreed with that.
30- T 6070-6073 (16 Oct 2000). The passage quoted in the preceding footnote followed shortly thereafter.
31- The Defence has failed to apply for leave to file a reply to the Prosecutors Response as required by the Order for Filing of Motions of 9 March 1998. However, in light of the advanced stage of the proceedings and the particular matter in issue, the Trial Chamber considers it to be in the interests of justice to treat the Reply itself as the required application for leave to file a reply and to grant the application. The Prosecutor applied for such leave in the Second Response.