Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10469

1 Thursday, 15 June 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE PARKER: Good morning. We understand there is some matters

6 that counsel wish to raise.

7 Mr. Vasic.

8 MR. VASIC: [Interpretation] Good morning to all. Thank you,

9 Your Honours. Before we commence, I would like to broach a subject that

10 was already raised by my learned friend Mr. Moore yesterday in connection

11 with Mr. Pringle, the OTP expert witness.

12 I'm not sure if I understand my colleague correctly when he talks

13 about his position in relation to the Defence teams' position to have the

14 portion based on witnesses not heard in this case removed from the

15 expert's report, witnesses whose facts were used by Mr. Pringle for the

16 making of his expert report. The Defence moves that these portions be

17 removed and not used as part of his expert report. As for Mr. Moore's

18 proposal of yesterday for the witness to be shown transcripts from this

19 trial, that certainly remains a possibility. I don't think there should

20 be a problem with that. One thing, though, we believe that any conclusion

21 that Mr. Pringle reaches based on these transcripts will be a whole new

22 expert report. The Defence teams surely must be given a chance to

23 familiarise ourselves with these new conclusions, as envisaged by the

24 Rules.

25 I also notice that Mr. Moore has referred to a number of

Page 10470

1 insignificant changes. There is no way for us to know what these changes

2 will be, but certainly the foundation for the expert's conclusions changes

3 -- or rather, the Defence will have to change tack and develop a new

4 strategy for our cross-examination of this witness now that these new

5 conclusions seem to have been reached. I did not believe that we can give

6 our final position on this before we get a chance to see Mr. Pringle's

7 conclusions.

8 As for those witnesses in the expert report who have not testified

9 in this case, we still believe that these portions of the report should be

10 removed and not admitted in these proceedings. Thank you.

11 JUDGE PARKER: Ms. Tapuskovic.

12 MS. TAPUSKOVIC: [Interpretation] Your Honours, good morning. If

13 Mr. Moore has nothing to say about Mr. Vasic's words, I would like to

14 raise another issue, an issue that first came up on the 12th, the issue of

15 undisputed facts -- the issue of agreed facts. Mr. Vasic spoke about that

16 and the OTP spoke about that, too. We believe that tomorrow on the 13th a

17 new motion on agreed facts will be submitted. That appears not to have

18 been done, and the Defence teams believe that we need to address the Trial

19 Chamber to see why this was not the case. As you know, after the 16th of

20 March when the agreement on agreed facts was signed in relation to 35

21 different facts, there was a motion by the OTP informing us that the Trial

22 Chamber and the Defence teams rightly requested explanation in relation to

23 eight facts. On the 12th of May we accepted five of those eight right

24 away, Your Honours. We expected that right away -- or rather, by the 12th

25 of May and onwards, the Trial Chamber would be informed about this. This,

Page 10471

1 however, has not the been case.

2 Believe me, Your Honours, the Defence teams have no problems or

3 dilemmas concerning these agreed facts. There seems to have arisen a

4 problem on the part of the Prosecution, though, because on the 25th of May

5 the OTP informed us that there is one agreed fact that they would like to

6 have changed, one of those eight that we discussed. Two days ago we

7 received another proposal for yet another of those eight facts to be

8 amended or changed. The Defence firmly believes -- and I think all the

9 Defence teams are perfectly clear about the Rules on agreed facts between

10 the parties, and this appears to be an ongoing disposition. The Defence

11 teams continue to be prepared to discuss facts that may be agreed upon by

12 the parties. But the Defence teams are by no means prepared to further

13 change any facts that have already been agreed, or indeed that a month and

14 a half later the Prosecution should be allowed by the Trial Chamber to

15 change some facts that they are now not happy with.

16 I think it is necessary for us to continue negotiations on this

17 subject. I myself had a meeting yesterday on behalf of all our teams.

18 The only concern that we have in this respect is that the Prosecution

19 appears to want to have facts already agreed, changed and amended. This

20 is something that we can certainly not accept. As for any new facts, we

21 are open to further negotiations and to further contacts with the OTP.

22 Thank you.

23 JUDGE PARKER: Thank you.

24 Mr. Moore.

25 MR. MOORE: Yes. Firstly could I ask my learned friends if they

Page 10472

1 are going to make any submissions prior to court, would they have the

2 courtesy, perhaps, of informing us of those that we can address it.

3 With regard to Ms. Tapuskovic, we do not accept what she says in

4 any way at all. We have had a number of difficulties with the Defence. I

5 have on many occasion walked away and tried to find a route to

6 accommodate. With regard to the agreed facts there have been

7 difficulties; there have been difficulties both ways. I would like this

8 matter, if the Court would be kind enough, to put it over enough until the

9 conclusion of this witness's evidence, and we then can clarify the matters

10 more fully and the Prosecution can bring certain matters to the attention

11 of the Trial Chamber and the difficulties that we sometimes face. I give

12 one very small example. One of the proposed agreed facts is that

13 Sljivancanin was subordinated to Mrksic, as the Defence would say, until

14 the 29th of June, 1992. We have asked for the insertion of the words

15 not "until the 29th of June," but "at least until the 29th of June." The

16 reason is perfectly straightforward. We have material that suggests it's

17 later. It may not exactly be important in the case, but by the insertion

18 of the word "at least," what it means is we accept that there is

19 subordination up until that date and it may well then be that evidence

20 will be called in relation to the subsequent period. But as a result of

21 that, we don't get an admission and we are going to have to call evidence

22 and take court time for it.

23 So for my part, others are dealing with it. I obviously am aware

24 of what is going on. This has been rumbling. I have e-mails in November,

25 I have them in February. I thought the matter was resolved. It has not

Page 10473

1 been easy in any way at all and it is not exclusively the Prosecution's

2 fault. I refute that completely, but I would ask that these matters

3 please be put to the end of the day.

4 May I deal with the first matter, Mr. Vasic, and I dealt with it

5 yesterday, and I repeat it. This report was served on the Defence in

6 September. In October, they agreed to the report and they agreed subject

7 to cross-examination. We have heard nothing from the Defence about this

8 report until approximately five days ago when they say they're not happy

9 about the content of the report. I merely ask the question: Why is it we

10 hear five days prior to today, when in actual fact Vojinovic concluded his

11 evidence in mid-May. And if there was such concern about it, why was it

12 not mentioned prior to that date? I accept the Defence when they say:

13 Well, we may not have known that, for example, Tesic or Panic was not

14 going to give evidence. I accept that. But the die was cast when the

15 lists were given of the witnesses that we were seeking to reply. Nothing

16 has been said to the Defence -- by the Defence to me about this. So I

17 would submit I am rather surprised that there is such dissatisfaction at

18 this stage.

19 I repeat what I said yesterday. The witnesses, for example, Panic

20 and Tesic, who are not going to be called but formed part, a small part,

21 of Pringle's report, we will not reply upon. There is footnotes; they

22 will be removed and the conclusions from those officers will be redacted.

23 We seek to rely upon, again as I say and said yesterday, that Pringle's

24 reassessment of the position as a direct consequence of the transcripts

25 which were sent to him in relation to the military witnesses. The view I

Page 10474

1 took, if it is of any interest to my learned friends or, I hope, the

2 Court, is that if you wish to get a proper evaluation of command and

3 control, you should be able to also assess it on what the witnesses have

4 said under cross-examination as well as in chief, as well as in their

5 witness statements. And we would seek to reply upon those core documents

6 and that evidence as such.

7 I've spoken to General Pringle, actually this morning. My

8 understanding is that he has read virtually all of the military

9 transcripts, in particular Trifunovic, who is one of the core witnesses.

10 So assist my learned friends, and I say it in open court, my understanding

11 is that when he reads Trifunovic's evidence and the cross-examination,

12 that his conclusions remain the same in respect of the comparison or

13 similarity -- perhaps a better way of putting it, the similarity between

14 Trifunovic's or JNA's understanding of command and control and Pringle's

15 understanding of command and control. Again, as far as I understand it,

16 the conclusions he will re-appraise, but he thinks that they will be very

17 similar.

18 So there are no bomb-shells, if I may use that pun, to come with

19 my learned friends. I anticipate that Pringle will come to his

20 conclusions at the weekend. I will see him on Monday. I will inform my

21 learned friends. But their experts clearly have had this report for

22 almost eight months. If there is no difference, and they are aware that

23 Tesic and Panic and the other two witnesses are not giving evidence, I for

24 my part fail to understand why there should be any difference at all in

25 the method of cross-examination, the content of cross-examination, because

Page 10475

1 those experts also will have seen the transcripts, not only in chief but

2 also in cross-examination. With the utmost respect to my learned friends,

3 as Mr. Vasic said last week, he needed some time to read the report. I

4 understand fully the pressures of time on people; I know it better than

5 most. But there is nothing here that the Prosecution have done that is

6 improper. The report has been with my learned friends for eight months.

7 [Trial Chamber confers].

8 JUDGE PARKER: I don't think we need to hear you further,

9 Mr. Vasic. Thank you.

10 The matter of the agreement of facts can be left until the end of

11 this witness.

12 Can the position may -- made a little more clear about expert

13 reports. The report of an expert is the report of an expert. Inevitably

14 the expert will need to rely upon certain facts. Some of it comes from

15 their general knowledge, some of it from a study of documents and

16 instruments, and some of it comes from having read evidence that is to be

17 given in the case by witnesses who know of the facts. The report, as

18 such, remains the report of the expert and is admissible, assuming it to

19 be relevant. If the expert has relied on factual matters which are not

20 proved, then insofar as the expert relies on those factual matters, the

21 report is of no weight. So it's evidence, but it is of no weight because

22 the factual basis for it has not been proved. So if it is that there are

23 witnesses such as Tesic and Panic whose statements the expert had taken

24 into account and who are not called and there is no other evidence to

25 prove what those two or others in the same position would have proved, it

Page 10476

1 means that any conclusion based on that potential evidence is just of no

2 weight at all.

3 So that the fact that those witnesses may not be called

4 disadvantages the Prosecution; it does not disadvantage the Defence.

5 It is an everyday occurrence in trials where experts are called

6 that evidence during the trial will in some ways vary from what had been

7 anticipated in statements before the trial. It is a weakness if the

8 expert is not aware of what has been given in evidence during the trial;

9 it takes away from the value of that expert's evidence. So it is normal

10 for experts, for example, to be allowed to be present when other experts

11 give their evidence so that they can be fully informed about that. It is

12 also normal for experts to familiarise themselves with the evidence given

13 during the trial. And if their affects their evidence, they, when they

14 come to give evidence, must identify that and say what evidence they've

15 seen to be material and how it affects their opinions. It may alter their

16 opinions, it may provide further confirmation of their opinions, et

17 cetera. But there's nothing wrong; in fact, it is the preferred course

18 for experts as they come to give their actual evidence in the trial to be

19 familiar with the evidence that has been given during the trial by the

20 witnesses actually called, that is speaking about the matters relevant to

21 the expert's evidence.

22 Here Mr. Moore proposes that the original report will in fact be

23 modified to take away opinions that directly rely upon witnesses who have

24 not been called by the Prosecution. That will make the task easier, both

25 for Defence counsel and for the Chamber. So at present, unless something

Page 10477

1 unexpected emerges - and you must always allow for that - the Chamber

2 would not see that what is proposed by the Prosecution is either untoward

3 or that it is likely to produce any significant change to the nature of

4 the evidence given by the Witness Pringle, or to the course that evidence,

5 and especially cross-examination, is likely to take. The same issues will

6 be alive. Maybe instead of Witness X, there will be evidence from

7 Witnesses Y and Z that go to and form a particular opinion, but there will

8 be nothing to be anticipated at the moment that will be surprising about

9 that.

10 For that reason, we think, Mr. Vasic, that your concerns may be

11 too great at the moment for what, in truth, will actually emerge. But of

12 course, if something of real significance should happen, we will have to

13 review the situation in light of that.

14 I think that -- for those reasons we would say at the moment,

15 Mr. Vasic, that your actual motions that you formulated really should be

16 dismissed, but of course if there is some matter of real substance and

17 difficulty that emerges, you may renew your position. But we would not

18 anticipate that occurring.

19 I think we're now ready for the witness.

20 While the witness is coming, we'll move into closed session.

21 [Closed session]

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25 --- Whereupon the hearing adjourned at 4.27 p.m.,

Page 10595

1 to be reconvened on Friday, the 16th day of

2 June, 2006, at 9.00 a.m.