Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14906

1 Friday, 24 July 1998

2 --- Upon commencing at 10.05 a.m.

3 JUDGE KARIBI-WHYTE: Good morning, ladies and

4 gentlemen. May we have the appearances, please.

5 MR. TURONE: Good morning, Your Honours, my

6 name is Turone and I appear today with Mr. Cowles and

7 Mr. Huber for the Prosecution. Thank you.

8 JUDGE KARIBI-WHYTE: May we have appearances

9 for the defence.

10 MR. O'SULLIVAN: Good morning, Your Honours,

11 my name is Eugene O'Sullivan, I appear on behalf of Mr.

12 Delalic and my colleague and lead counsel, Ms.

13 Residovic, will not be here today.

14 MR. OLUJIC: My name is Niko Djuric, attorney

15 at law from Zagreb, Croatia, and today I appear on

16 behalf of the defendant, Mr. Zdravko Mucic. Thank you.

17 MR. KARABDIC: Good morning, Your Honours, I

18 am Salih Karabdic and I am defending Mr. Hazim Delic,

19 together with me defending him is Mr. Tom Moran,

20 attorney from Houston.

21 MS. McMURREY: Good morning, Your Honours, I

22 am Cynthia McMurrey. I represent Esad Landzo, along

23 with Ms. Nancy Boler and Mr. Calvin Saunders. Thank

24 You.

25 JUDGE KARIBI-WHYTE: Thank you very much.

Page 14907

1 MR. DJURIC: Excuse me, Your Honours, in

2 order to avoid any problems with this mistaken identity

3 of appearances here. In the transcript, I seem to be

4 confused with Mr. Olujic and I would like the record to

5 reflect that this is not so.

6 JUDGE KARIBI-WHYTE: Thank you very much.

7 There is no way of mistaking the two of you. Kindly

8 swear the witness.

9 THE WITNESS: Damir Gogic.

10 THE WITNESS: I solemnly declare that I will

11 speak the truth, the whole truth, and nothing but the

12 truth.

13 JUDGE KARIBI-WHYTE: Yes, Ms. McMurrey, can

14 we hear you and your witness.

15 MS. BOLER: May I proceed, Your Honours?

16 JUDGE KARIBI-WHYTE: Yes, you may if you are

17 Mrs. McMurrey.

18 MS. McMURREY: Just so we don't get confused

19 with those twins again.

20 MS. BOLER: I consider that as a compliment,

21 but --

22 Examined by Ms. Boler:

23 Q. Good morning, Mr. Gogic, please state your

24 name for the Court.

25 JUDGE KARIBI-WHYTE: No interpretation.

Page 14908

1 THE INTERPRETER: Couldn't hear the witness.

2 There is no interpretation. I cannot hear the

3 interpretation into Bosnian. Yes, I can hear it now.

4 THE WITNESS: I am Gogic Damir. I come from

5 Konjic.

6 JUDGE KARIBI-WHYTE: Yes, sit down.


8 Q. You know that I am Nancy Boler and along with

9 Cynthia McMurrey and Calvin Saunders, I represent Esad

10 Landzo.

11 A. I apologise, I haven't heard the

12 interpretation well.

13 Q. Your Honours, he just stated that he did not

14 hear the interpretation well.

15 A. Yes, it's all right, yes.

16 Q. All right. Let me ask you to explain to the

17 Court what your current occupation is and where you are

18 stationed.

19 A. I am an officer in the Army of the

20 Federation. I reside in Konjic and I work in Bugojno.

21 It's about 110 kilometres from Konjic.

22 Q. And you and I have met before. We met last

23 night when I came to Konjic.

24 A. Yes.

25 Q. And just briefly a couple of weeks ago with

Page 14909

1 my last visit to Konjic?

2 A. Yes.

3 Q. And we spoke again last night at your hotel

4 when you arrived in The Hague, correct?

5 A. Yes.

6 Q. Let me ask you just a little bit about the

7 events of yesterday when you were travelling to The

8 Hague. Is it true that you travelled from Konjic to

9 the Sarajevo airport with another witness, potential

10 defence witness, whose name was Mehmedalija Rizvic,

11 nickname Hodza?

12 A. Yes, Mehmedalija Rizvic.

13 Q. Will you tell the Court to the best of your

14 knowledge why Mr. Rizvic is not here today?

15 A. As far as I know, on the way from Konjic to

16 Sarajevo, in the car, he felt sick. And at the airport

17 he went into the bathroom, he was vomiting and he

18 wasn't able to get on the plane and come here.

19 Q. You were also expecting another defence

20 witness named Senad Nemic to join you at the airport;

21 isn't that true?

22 A. Yes, that's true.

23 Q. But he never showed up?

24 A. He didn't show up. Attorney from Konjic,

25 Asim Suta, told me he will be waiting at the airport.

Page 14910

1 However, he wasn't there and I have no idea what

2 happened to him.

3 Q. All right. Let's go back to the years before

4 the war. You and Esad Landzo grew up together in

5 Konjic; isn't that right?

6 A. Yes.

7 Q. And your family and Esad Landzo's family

8 lived on the same street, the 15th of September Street,

9 true?

10 A. Yes, that's true.

11 Q. And how would you describe Esad Landzo when

12 you were growing up together in Konjic?

13 A. Esad was always quiet and withdrawn. As a

14 child, he always had some health problems, so that he

15 couldn't play with us, all those games that we used to

16 play. We mostly played football, soccer. And if he

17 did play with us, he would play only for a short period

18 of time where he would be a goalie because he couldn't

19 run and he couldn't really get physically very active

20 and get tired. He was generally a good guy, a good

21 boy.

22 Q. The Court has heard testimony about these

23 health problems, so I won't ask you to go into them

24 other than to just briefly describe in a very short

25 way, the types of problems that he had, why he was not

Page 14911

1 able to play as you've just described.

2 A. As far as I know, he had severe problems with

3 breathing. He frequently coughed. And she would get

4 tired quite quickly. I also know that he also had some

5 problems with fingers on the right hand, two or three

6 fingers. I am not sure whether all three or just two

7 fingers. So that he couldn't lift things. And this

8 was due to some kind of wounding, self-wounding with a

9 knife or with a piece of glass, I am not sure really

10 what it was.

11 Q. Let me now direct your attention back to

12 April of 1992, when the war broke out. You were in JNA

13 military school at the time; isn't that right?

14 A. No. When the war broke out, I was in

15 Konjic. I had left the military school in September of

16 '91.

17 Q. So that was some six months before. All

18 right. When you left the military school, how far

19 along were you in your training?

20 A. I had left the military school when I was

21 attending at third year of the school in Belgrade.

22 Q. You were in school in Belgrade, that was the

23 location of the military school?

24 A. Yes.

25 Q. Again, the Court has already heard testimony

Page 14912

1 about the shelling of Konjic and the refugees pouring

2 in and the fear and the panic, so although I am sure

3 you can comment on those, I won't be asking you any

4 questions along those lines, we'll just go directly

5 into what you did during the war, okay?

6 A. All right.

7 Q. All right. When the war began, you were a

8 member of the HVO military police; is that right?

9 A. Yes, yes.

10 Q. And what kind of duties did you have as a

11 member of the HVO military police?

12 A. As a member of the military police of the

13 HVO, I was in charge of securing facilities that were

14 of special importance and also to arrest the military

15 conscripts that did not respond to the call to come to

16 the army. Those were the main tasks that we were

17 executing.

18 Q. And at some point you then became a member of

19 the army military police of Bosnia-Herzegovina army

20 military police; isn't that right?

21 A. Yes.

22 Q. And how were your -- how did your duties as a

23 member of that military police differ from the HVO or

24 were they similar, what were your duties as a member of

25 the military police?

Page 14913

1 A. Here, we almost had the same tasks, but here

2 in this military police, we frequently had an

3 opportunity to defend, to go to the defence line of the

4 city, wherever they needed us. This was an additional

5 task that we didn't have in the military police of the

6 HVO.

7 Q. Okay. And I'll be asking you some questions

8 about that in just a bit. At some point did Esad

9 Landzo become a member of the military police?

10 A. Yes, he did.

11 Q. And do you recall when that was?

12 A. I remember that this was about 15 days, so

13 about two weeks after the death of our military

14 policeman in Bradina, which happened on July 12th of

15 '92.

16 Q. Then in the next month in August, there was a

17 swearing in ceremony for the military police; do you

18 recall that?

19 A. Yes.

20 Q. And you attended that ceremony, correct?

21 A. Yes, I did.

22 Q. And was Esad Landzo also at that ceremony?

23 A. Yes, he was.

24 Q. Through another witness, we showed a

25 videotape of that, so I won't be asking you any more

Page 14914

1 questions about the swearing in ceremony at this point,

2 okay?

3 A. All right.

4 Q. All right. And you were commander of the

5 third platoon of the military police?

6 A. Yes.

7 Q. And how many platoons were there in the

8 military police?

9 A. Three.

10 Q. And Esad was under your command as a member

11 of the third platoon, correct?

12 A. Yes.

13 Q. And so were you his direct superior?

14 A. I was.

15 Q. Would you describe his demeanour after

16 Celebici, when he became a member of the military

17 police? Demeanour, personality, the way he behaved.

18 JUDGE JAN: (No microphone)

19 THE INTERPRETER: Microphone, Your Honour.

20 JUDGE JAN: Which military police force are

21 you talking about?

22 MS. BOLER: The only question a few minutes

23 ago, the first question that I asked him --

24 JUDGE JAN: He was a member of the HVO

25 military police.

Page 14915

1 MS. BOLER: Correct. And then sort shortly

2 thereafter, he left the HVO military police and became

3 a member --

4 JUDGE JAN: Ask him. Because at that time,

5 there was no military police of the TO in the

6 beginning.

7 MS. BOLER: In the beginning, that is

8 correct. So he was the HVO.

9 JUDGE JAN: Let there be no confusion about

10 it.

11 MS. BOLER: All right.

12 Q. So there won't be any confusion, Mr. Gogic,

13 let me back up just a little bit to make the transition

14 from one military police unit to the second military

15 police unit.

16 A. My personal view?

17 Q. Not necessarily your personal view. The

18 judge asked that I go back and clear something up, just

19 in case there was some misunderstanding about that. So

20 I am just going to back up and ask you a question about

21 when you left the HVO military police and then joined

22 the military police of your army. The judge brought

23 up, and I know that he is correct, that when the war

24 first started, there was not an unit of the military

25 police in the Bosnia-Herzegovina army; isn't that

Page 14916

1 true? And that at some point later, and you tell me,

2 weeks, months, but at some point, then there was

3 established a unit of the military police in the army,

4 correct?

5 A. Yes. This is how it happened. In the

6 beginning there was just a military police of the HVO,

7 so that means that there was no military police of the

8 TO. And we were practically members of the military

9 police of HVO, beginning of June. So in the beginning

10 of June, military police of the TO was established.

11 And at that time, I transferred into that military

12 police because I deemed that that was the correct thing

13 to do at that time.

14 Q. And has it been your understanding through my

15 questioning that all of the questions that I have asked

16 you about Esad being a member of the military police,

17 Esad being sworn in in August, et cetera, all the

18 questions along that line, was it your understanding

19 that I was speaking of Esad being a member of the army

20 military police, not the HVO military police?

21 A. Yes, yes.

22 Q. Did that clear it up, Your Honour? Did that

23 clear it up? Okay. All right. Let me go back, I

24 believe the last question before we went -- before we

25 backtracked a bit was that I had asked you to describe

Page 14917

1 Esad's behaviour, his demeanour as a member of the

2 military police after he served at Celebici.

3 A. Well, when he came to the military police,

4 Esad was more withdrawn than usual. He was somewhat

5 depressed, perpetually depressed, so that he didn't

6 really socialise with us. For example, when we used to

7 play cards, he would sit by us, somewhere close to us,

8 but he wasn't really always with us. He was simply

9 close by. He was by himself, withdrawn and quiet.

10 Q. And you're able to make this comparison

11 because you knew him before he went to Celebici and you

12 knew him as a member of your platoon in the military

13 police, correct?

14 A. Yes.

15 Q. As his platoon commander, you were in charge

16 of giving him orders and assigning him duties; isn't

17 that true?

18 A. Yes.

19 Q. And did Esad Landzo respect you and look up

20 to you?

21 A. He did.

22 Q. Did he follow your rules and did he follow

23 your orders?

24 A. Esad was a good soldier. And as far as I can

25 remember, he never refused to carry out any of my

Page 14918

1 orders.

2 Q. We've mentioned -- we've talked a little bit

3 about his breathing difficulties and his hand injury,

4 and you were aware of these, you've testified to that.

5 Did you keep --

6 A. Yes.

7 Q. -- these things in mind, as you assigned him

8 tasks and duties?

9 A. Yes, I always had this in mind so that I

10 would always assign him somewhat lighter duties, for

11 example, guarding of the checkpoints, securing --

12 protecting the hospital and these type of lighter

13 duties where there was no need to be very physically

14 active or carry heavy loads.

15 Q. You mentioned guard the hospital, would you

16 give me a specific example of what you mean by guard

17 the hospital?

18 A. On one occasion, he was wounded, Mr. Mirsad

19 Catic also known as Cuperak was wounded. And he was at

20 the Konjic Hospital. And, at that time, I assigned

21 Esad to protect him personally at the hospital.

22 Q. When you first began your answer, the English

23 translation that I heard was, he was wounded. Let me

24 just give you a chance to clear that up. You did not

25 say that Esad Landzo was wounded, you're saying that

Page 14919

1 Mr. Mirsad was --

2 A. Mirsad Catic was wounded and I assigned Esad

3 to his -- to protect him at the hospital.

4 Q. Now, sometimes Esad Landzo's duties took him

5 to the frontlines just the way -- just like other

6 members of the military police; isn't that true?

7 A. Yes.

8 Q. And do you recall a time when you had a

9 mission in Glavaticevo?

10 A. I do remember.

11 Q. Okay. At some point in that mission there

12 were -- you had to climb some hills, correct?

13 A. Yes. We had to climb a hill that was quite

14 steep. And I know that Esad wasn't able to climb up on

15 foot to the top of the hill so that, so that we gave

16 him a horse. And he was riding a horse up to the top

17 of the hill.

18 Q. And at some point, you had Esad stay behind

19 to watch for deserters, correct?

20 A. Yes, this happened in the Village of Grusca,

21 where we had left three or four, I don't remember

22 exactly how many military policemen, among one of them

23 was Esad. And I left Esad there exactly due to his

24 health problems so that they were in charge of watching

25 out for the deserters who had left the defence line.

Page 14920

1 Q. And how long would you say that Esad remained

2 at that post while the rest of you went on farther?

3 A. He remained there about 15, 16 days.

4 Q. And, Your Honour, I am going to pass the

5 witness at this time.

6 JUDGE KARIBI-WHYTE: Any cross-examination?

7 MR. O'SULLIVAN: We have no questions for

8 this witness.

9 MR. DJURIC: We also have no questions for

10 this witness.

11 MR. KARABDIC: The defence counsel of Mr.

12 Hazim Delic has no questions either.

13 JUDGE KARIBI-WHYTE: Prosecution, any

14 cross-examination?

15 MR. COWLES: Your Honour, the Prosecution has

16 no questions for this witness, thank you.

17 JUDGE KARIBI-WHYTE: Thank you very much.

18 Thank you.

19 JUDGE JAN: He feels cheated.

20 (The witness withdrew)

21 MS. McMURREY: Well, unfortunately that puts

22 me back in the hot spot again, though. Your Honours,

23 we had the three witnesses scheduled for today, but Mr.

24 Gogic was the only one who was on the plane yesterday,

25 so we have no further witnesses to present to the Court

Page 14921

1 today and I do apologise. I am not giving up though.

2 JUDGE KARIBI-WHYTE: You had him and he

3 disclosed the difficulties, at least of one of the

4 witnesses. But there is nothing known about the third

5 one who still hasn't shown up. Have you heard anything

6 from him?

7 MS. McMURREY: Your Honour, it's my

8 understanding that he had spoken to Victim and

9 Witnesses and to our investigator just the night before

10 and assured them that he was in Sarajevo and would meet

11 them at the airport. And he just was a no show.

12 JUDGE KARIBI-WHYTE: Still hasn't

13 communicated to anyone?

14 MS. McMURREY: No, Your Honour.

15 JUDGE KARIBI-WHYTE: Where do we go from

16 here?

17 MS. McMURREY: I will be prepared Monday

18 morning to begin with Dr. Gripon. And we'll be

19 prepared to go forward at that point. And, hopefully,

20 we're still going to be on the schedule that we had

21 discussed with the Court last week. So I predict that

22 the Defence of Esad Landzo will be finished at least,

23 at the latest, Wednesday at the close of business.

24 JUDGE KARIBI-WHYTE: I think that suits the

25 Trial Chamber and we hope that we don't have any more

Page 14922

1 casualties on the way.

2 MS. McMURREY: I can assure you we won't have

3 any more missing witnesses on Monday.

4 JUDGE KARIBI-WHYTE: Thank you very much.

5 Now I have a few motions, which are pending. The top

6 of the list is the Prosecution's notification of

7 witnesses anticipated to testify in rebuttal. And

8 we've also had the Defence, the first defendant's

9 reaction to that motion.

10 MR. TURONE: Your Honour, we didn't have any

11 reaction to our brief on the rebuttal case. We didn't

12 receive anything.

13 JUDGE JAN: (Microphone not on)

14 JUDGE KARIBI-WHYTE: Have you any copies?

15 MR. O'SULLIVAN: Yes, Your Honour, we did

16 file an objection, although I did not receive the filed

17 copy that goes through the Registry, so it appears that

18 it may not have gone through the system, as far as the

19 lawyers are concerned. You may have received it, but I

20 don't believe counsel has.

21 JUDGE KARIBI-WHYTE: That's why we will be

22 able to hear arguments of that motion.

23 I think you're not prepared to argue it now,

24 so we will leave you time when you might have the

25 defence reaction. Otherwise --

Page 14923

1 MR. TURONE: Yes, Your Honour. Well, of

2 course, we couldn't add anything else but what we wrote

3 in our brief without reading the defence's reaction,

4 Your Honour.

5 JUDGE KARIBI-WHYTE: We may defer with the

6 other motion on the procedural aspect, that Hazim

7 Delic's motion for continuance in the alternative,

8 because of the change in the procedure.

9 MR. MORAN: Yes, Your Honour. I think it's

10 laid out fairly clearly in the motion what our position

11 is, that for reasons known only to the Plenary Session,

12 and I'm not objecting to that or saying it's the wrong

13 procedure, just in the middle of our trial the

14 procedure was changed rather drastically, and we would

15 ask for the relief that we set out, which is either

16 found under rule, I believe, 6C that the defendants

17 would be prejudiced by applying this change in the

18 rules, or in the alternative, after the witnesses are

19 done, let us have a break so we can go out and get

20 punishment witnesses. It's fairly straightforward.

21 It's a request in the alternative, and I personally

22 think that the best procedure would be to apply Rule 6,

23 I believe C, and continue under the prior procedure.

24 But whichever the Trial Chamber thinks is more

25 appropriate is fine with me, just so long as we have

Page 14924

1 some time to prepare punishment evidence for the Trial

2 Chamber.

3 JUDGE KARIBI-WHYTE: Do you have any


5 MR. TURONE: Your Honour, the Prosecution

6 takes the side of the defence, as far as this motion is

7 concerned. It is the submission of the Prosecution

8 that for general reasons of rationality, besides the

9 reasons stated by the defence counsel, such an

10 amendment of rules could not apply to a trial like this

11 at the very end of it. Thank you.

12 JUDGE KARIBI-WHYTE: Gentlemen, what are your

13 real difficulties in adjusting to what the procedure

14 has brought about?

15 MR. MORAN: Your Honour, we planned our

16 schedules and planned everything based upon both the

17 rules as they existed before July the 10th and the

18 Trial Chamber scheduling order of July 14th. There had

19 been a request for an amendment to that, and so that

20 should come as no surprise to the Trial Chamber. But

21 basically we've scheduled our lives and plans based

22 around that. And if suddenly we're to find that we

23 come back on August 31st and have to be prepared to

24 present evidence relative to punishment, that would be

25 a real problem for us and for the Prosecutor.

Page 14925

1 The Prosecutor may have evidence relevant to

2 punishment they would want to present. I have no feel

3 for that, but there are, of course, a lot of matters in

4 either aggravation or mitigation of punishment which

5 the parties may wish to present to the Trial Chamber,

6 but we thought we would have some period between final

7 arguments when the Trial Chamber took the issue of

8 guilt or innocence under advisement and the delivery of

9 a judgement on those issues to bring in these witnesses,

10 prepare these witnesses, frankly find them.

11 Until now our entire focus, and suspect the

12 entire focus of everybody in the courtroom, has been

13 the issue of guilt and innocence, not the issue of

14 punishment, if there is a conviction on some counts.

15 JUDGE KARIBI-WHYTE: I suppose that would

16 have been the usual thing, and this is where you focus

17 all your attention, so that even if the procedure has

18 changed, and then there was the Trial Chamber to

19 determine punishment, it would not do so without asking

20 you to make a contribution. You never had an idea

21 about what the conviction would be, and nobody starts

22 with a conviction.

23 MR. MORAN: I understand, Your Honour, and

24 the procedure you're discussing was under the prior

25 rules, and frankly, the procedure that I'm familiar

Page 14926

1 with and I think everyone else is familiar with.

2 JUDGE KARIBI-WHYTE: Because the prejudice

3 you're suggesting now is such that you should take

4 punishment into account and your address is how could

5 you.

6 MR. MORAN: Your Honour, what --

7 JUDGE KARIBI-WHYTE: Would you be doing that

8 in your addresses now without knowing exactly what the

9 fate of the accused is?

10 MR. MORAN: Your Honour, we think under the

11 revised rules we would be required to do that, and

12 we're just asking the Trial Chamber to, frankly, for

13 some guidance, and if the Trial Chamber is going to

14 follow the new rules that I set out in the motion, give

15 us some time to get punishment witnesses here.

16 The nightmare, I think, would be for us to

17 argue guilt and innocence and then -- and I'm not

18 saying the Trial Chamber would do this, I just wanted

19 to bring it to the Trial Chamber's attention -- then

20 some weeks later come back and find out we're handed a

21 judgement that says not only guilt and innocence but

22 also has punishment attached to it, which I think is

23 what the new procedure contemplates.

24 JUDGE KARIBI-WHYTE: Actually it a laborious

25 one to go ahead and attach punishment, but usually

Page 14927

1 after a conviction then you call on the accused to make

2 any submission.

3 MR. MORAN: Yes, Your Honour, I agree with

4 you completely. It's just my reading of the amended

5 rules that it contemplates that instead of being a

6 bifurcated procedure with a determination of guilt and

7 innocence and then, if necessary, going to punishment,

8 it would be a single procedure. Which again, I dropped

9 a footnote in there saying I'm not complaining about

10 the overall fairness of that, and I know of no reason

11 under the statute why that could not be the procedure.

12 I know of no reason under fundamental fairness why that

13 could not be the procedure. In fact, frankly, in my

14 country our Supreme Court says that constitutionally

15 can be the procedure.

16 So I don't that it's any deprivation of a

17 fair trial. It's just that we need to know how to

18 proceed from here.

19 MS. McMURREY: I believe we're all saying the

20 same thing on this issue, is that we started off

21 believing that we were just putting on evidence of

22 guilt or innocence, and if the Court did perceive right

23 now that the new procedural rules applied, everybody

24 would need to open their case in chief to put on

25 punishment evidence. But since the Court is saying

Page 14928

1 we're going to go by the old rules, you're not going to

2 change them on us in the middle of the game, then we

3 would just proceed under the old rules that we

4 presented evidence of guilt and innocence and once the

5 verdict is rendered you will allow us to put on

6 punishment evidence, as we had assumed from the

7 beginning in this case.

8 Are we all saying the same thing, I think?

9 MR. MORAN: I think we're all saying the same

10 thing. I think we're all agreed.

11 JUDGE JAN: Nobody has any vested right in

12 any procedure. And so far the procedural amendments

13 can be applied with the one exception: The procedural

14 amendments should not affect any vested rights. To

15 affect the vested right, then the accused has a right

16 he should be tried under the old procedure.

17 MS. McMURREY: And we have the utmost

18 confidence this Trial Chamber would not let us --

19 JUDGE JAN: Nobody has any vested right in

20 any procedure, except when it takes away a vested

21 right.

22 MS. McMURREY: I feel comfortable with that,

23 Your Honour.

24 MR. MORAN: And when I looked at Rule

25 6B, which says the procedural rules go into effect

Page 14929

1 immediately, and 6C that says -- excuse me, 6C that

2 says amendment to the rules go into effect immediately

3 but shall not prejudice the rights of the accused. My

4 initial reaction was that the new procedural rules are

5 in effect unless the Trial Chamber finds the

6 application of them would somehow prejudice the

7 defendants.

8 And so what I -- the reason I filed the

9 motion was to say if it's going to -- let's decide what

10 we're going to do in such a way that it does not

11 prejudice my client, and that's why I laid out the two

12 alternatives for the Trial Chamber.

13 JUDGE KARIBI-WHYTE: In many jurisdictions

14 where there is no pre-sentencing procedure after

15 conviction, there is something which is called

16 allocutus.

17 MR. MORAN: Yes, Your Honour, we call it

18 right of allocution.

19 JUDGE KARIBI-WHYTE: In allocutus you allow

20 even evidence to be introduced in mitigation, which is

21 almost equivalent to present it as procedure. So, even

22 if you are now being directed under the new procedure,

23 you will not be deprived of saying something before the

24 sentence is passed.

25 MR. MORAN: We just wanted to make sure.

Page 14930

1 JUDGE KARIBI-WHYTE: It doesn't make any

2 difference whatsoever. The earlier procedure is merely

3 elongating what normally should have been done very

4 briefly by protracting the trial and making all sorts

5 of unnecessary witnesses.

6 You can still do that, but not to the extent

7 to which you invite all sorts of experts to talk about

8 what the conviction should amount to. You are allowed

9 after conviction to call evidence in mitigation.

10 MR. MORAN: And I can think of many things in

11 mitigation that could be presented to the Trial

12 Chamber, everything from mental status to behaviour and

13 the detention facility, all of those things could be

14 mitigating, or for that matter, aggravating, and we

15 just want to make sure we have the opportunity.

16 JUDGE KARIBI-WHYTE: I think you would, yes.

17 You will have every opportunity to lead evidence in

18 mitigation and perhaps the Prosecution, whichever.

19 MR. MORAN: Yes, Your Honour.

20 JUDGE KARIBI-WHYTE: The other motion which I

21 have is on the competence of one of the judges, and

22 which perhaps, I should mention, should have been

23 brought to notice much earlier than now, because I have

24 dealt with it. I've even also sent it to the Bureau

25 long ago. In fact, they should have dealt with it much

Page 14931

1 earlier than now. And you would have been satisfied

2 about the issue. Why I have gone about it this way,

3 because if you have read it carefully, and I'm sure you

4 have, you will find the rules did not allow for

5 argument before the Trial Chamber. That is why it

6 allowed either the Presiding Judge or the Bureau, and

7 in fact, the Bureau itself does not take such

8 applications, except refer to it by the Presiding

9 Judge.

10 So, if you read rule 15D carefully, you will

11 find it was never intended to be argued, which perhaps

12 was the assumption of counsel. It was not intended to

13 be argued. Because if you rely on such open arguments

14 as the accused has every right under Article 21,

15 everybody accused of any matter has such a right, and

16 we could not be arguing that in the Trial Chamber which

17 is not properly constituted. It would only be two of

18 us, because the person affected will not be.

19 And secondly, the person affected is entitled

20 to representation, because the person's interest is

21 affected. So, in every way you look at it there is no

22 business for arguing it in open court.

23 Now, as I said, the Bureau will definitely

24 rule on the matter. Although, my views have been

25 complicated, because I have the primary duty of making

Page 14932

1 a ruling, and it is only when there is any conflict

2 that it is necessary to refer to them. Here there is

3 no conflict, and I refer to them because of the general

4 position of the trials in this Trial Chamber. Because

5 at every stage things have never looked as if fairness

6 has been involved.

7 So, I think I better refer it to the Bureau,

8 which will take a more impassioned attitude.

9 MR. MORAN: Yes, Your Honour. Of course, the

10 basic motion never accused anyone of being unfair or

11 having, in the words of rule 15A, personal interest or

12 an association that might affect impartiality. And no

13 one knew on our side that this motion had been referred

14 to the Bureau. If it had been, the motion you have in

15 front of you I don't think ever would have been filed,

16 Your Honour.

17 I think it needs to be made clear that no one

18 is saying that someone, anyone on the Trial Chamber

19 cannot be fair.

20 JUDGE KARIBI-WHYTE: We have it as a duty, as

21 judges, to assure that everything that is necessary for

22 the impartial administration of this trial has to be

23 assured. We wouldn't be here -- to make sure that all

24 our legal requirements for satisfying a valid trial.

25 We make sure that we have a valid trial.

Page 14933

1 If we find that there are any defects in our

2 procedure, we will not continue.

3 MR. MORAN: Yes, Your Honour, and I

4 understand that. I'm just standing up kind of as a

5 representative of everybody over here, but I think it

6 needs to be made perfectly clear on the record; there

7 has never been any intent on any part to accuse anyone

8 of any misconduct or unfairness or inability to be fair

9 or anything like that. We view it purely as a legal

10 question.

11 JUDGE KARIBI-WHYTE: I'm not even accusing

12 anyone. I'm only explaining the general feeling and

13 the environment of the trial; and therefore, if such a

14 thing affects the Trial Chamber, perhaps let a more

15 prestigious and a more impassioned group look at it,

16 instead of me taking the decision in my own interest.

17 MR. MORAN: First, Your Honour, I would never

18 admit there is anyone in this Tribunal more prestigious

19 than this Trial Chamber. You'd never get me to say

20 that. But I understand what you've done, Your Honour,

21 and we appreciate it.

22 JUDGE KARIBI-WHYTE: I think you will hear

23 from them shortly.

24 MR. MORAN: Thank you, very much, Judge.

25 JUDGE KARIBI-WHYTE: I think pending the

Page 14934

1 receipt of the Prosecution, of your motion, I think we

2 might rise. Perhaps, I believe by 12 o'clock you

3 should have that answer. So we come on here for their

4 views. So within one hour I expect that should be

5 solved. The Trial Chamber will now rise and resume at

6 12

7 --- Recess taken at 10.50

8 --- On resuming at 12.15 p.m.

9 JUDGE KARIBI-WHYTE: Mr. Turone, have you had

10 an opportunity to read the production of the Defence?

11 MR. TURONE: Yes, Your Honour, we are ready

12 to argue on the item. With Your Honour's permission,

13 since this is a typically common law issue, Mr. Cowles

14 will argue about that. I will only intervene, if

15 necessary, on any factual issue Mr. Cowles might not be

16 completely aware of. Thank you very much, Your

17 Honours.

18 JUDGE KARIBI-WHYTE: Let's hear you, Mr.

19 Cowles.

20 MR. COWLES: May it please the Court and good

21 afternoon, Your Honours.

22 Addressing the first issue raised by the

23 Defence concerning the proposed calling of the witness,

24 Rajko Dordic. And I do apologise if I mispronounce the

25 names as I am not used to it yet. Concerning that

Page 14935

1 witness, Your Honours, it is the position of the

2 Prosecution is that the calling of this witness in

3 rebuttal is justified as pure rebuttal evidence based

4 on the Defence position. We believe it's pure rebuttal

5 for two reasons, Your Honour. First of all, factually,

6 he will rebut the defence contention, the defence of

7 Mr. Delalic's contention, that this commission, the

8 military investigative commission was in operation.

9 Mr. Dordic will testify that he was released on the

10 third of June, 1992, and his release document does bear

11 that date. It is our position that factually, this

12 rebuts specifically the Defence proposition that the

13 commission could have signed in June as well, but,

14 instead, that Mr. Delalic, we believe it shows

15 specifically that Mr. Delalic signed in June, even

16 though the commission was operating in June. Later in

17 July, I think it is shown that the commission was not

18 operating -- I'm sorry, Your Honour?

19 JUDGE JAN: Who was the chairman of the

20 commission?

21 MR. COWLES: That I believe is mentioned as

22 Goran Lokas.

23 JUDGE JAN: Decided on his --

24 MR. COWLES: I'm sorry, I couldn't understand

25 Your Honour.

Page 14936

1 JUDGE JAN: Did he sign on his own authority

2 or on the authority on behalf of Goran Lokas?

3 MR. COWLES: I believe the document says for.

4 JUDGE JAN: For whom? The problem is that

5 you've not placed those documents which you want to

6 present now along with your motion, copies of the

7 documents. Have you got a copy of the document with

8 you?

9 MR. COWLES: Your Honour, I do not have it

10 with me. I believe they've been supplied to the

11 Defence. I'll refer to Mr. Turone on that specific

12 issue. I don't have the document with me right now

13 Your Honour.

14 JUDGE JAN: Why did you not produce the

15 document in the first instance when you were leading

16 your own evidence? Did you examine this witness during

17 the course of your investigations before?

18 MR. COWLES: No, Your Honour. It's my

19 information that the office of the Prosecutor was not

20 aware of this witness and did not examine him until --

21 JUDGE JAN: During the course of the

22 investigations, you did not examine him?

23 MR. COWLES: That is correct, Your Honour,

24 that is my information that I have been told by the

25 office.

Page 14937

1 JUDGE JAN: If you have that document, show

2 it to us, a copy of it.

3 MR. TURONE: It is --

4 MR. COWLES: Your Honours, I have now a copy

5 of the English in the original.

6 JUDGE JAN: In English, please.

7 MR. COWLES: Yes, I can forward that to you

8 with the help of the usher.

9 JUDGE JAN: For Goran Lokas. So you're

10 saying that when the commission was operating, it

11 should have been issued by the commission? Goran Lokas

12 was the chairman of the commission, wasn't he?

13 MR. COWLES: Yes, yes, Your Honour.

14 JUDGE JAN: Your argument that in the

15 presence of the commission, he signed it. How would

16 that help you?

17 JUDGE KARIBI-WHYTE: What is the rebuttal?

18 JUDGE JAN: You should examine this witness

19 in the first instance and that sign on behalf of Goran

20 Lokas. Who would be the chairman of the commission?

21 How would that help your case further?

22 MR. COWLES: Your Honours, we believe that it

23 shows that even though the commission was in operation

24 in June, that Mr. Delalic could sign on behalf of the

25 commission.

Page 14938

1 JUDGE JAN: On behalf of the commission?

2 MR. COWLES: Yes, Your Honours.

3 JUDGE JAN: Then you have to show evidence

4 that he was a member of the commission. If he was at

5 all in charge, he could have signed it himself instead

6 on behalf of Goran Lokas who was the chairman of the

7 commission.

8 MR. COWLES: I believe it shows that he was

9 in a position of authority.

10 JUDGE JAN: How? If he was in a position of

11 authority, he could sign on his own. Why should he

12 sign on behalf of Goran Lokas who was the chairman of

13 the investigative commission.

14 MR. COWLES: I'll defer to Mr. Turone.

15 JUDGE KARIBI-WHYTE: How does this rebut what

16 has been put in evidence?

17 MR. TURONE: Your Honours, if I may add

18 something with your permission. The evidence of

19 Jusufbegovic, which we believe Rajko Dordic is supposed

20 to rebut, is the very lines contained in page 11991 of

21 the transcript, when Jusufbegovic said he tried to get

22 in touch in July for the release of the two doctors in

23 July with members of the commission in order to have

24 them sign the release for them, for the two doctors,

25 and he couldn't find any member of the commission at

Page 14939

1 that time and that is the reason why for a very

2 exceptional reason, Zejnil Delalic signed this release

3 form for the commission.

4 The point on which Rajko Dordic should

5 testify is that on 3rd June, when the commission was

6 present every day on a daily basis in Celebici,

7 nevertheless, Delalic signed, although for the

8 commission, without any real need for him to sign for

9 the commission, since the commission was in Celebici on

10 a daily basis in those very days.

11 JUDGE JAN: His evidence that Goran Lokas was

12 injured.

13 MR. TURONE: Yes, but the members of the

14 commission were on a daily basis --

15 JUDGE JAN: Signed on behalf of Goran Lokas,

16 who was chairman of the commission.

17 MR. TURONE: Yes, yes, Your Honour.

18 JUDGE JAN: You have to lead other evidence

19 to show that Goran Lokas himself is not competent to

20 authorise. You will have to have evidence also. You

21 probably have to examine Goran Lokas also.

22 MR. TURONE: Your Honour, our argument is

23 that in the beginning --

24 JUDGE JAN: It's unnecessary that are not

25 bearing --

Page 14940

1 MR. TURONE: Your Honour, our submission is

2 that at the very beginning of June, when the commission

3 was there on a daily basis in Celebici, and we have all

4 the, a number of release documents, for instance,

5 signed by another member of the commission, other

6 than --

7 JUDGE JAN: Then you have to explain why

8 should he sign on behalf of Goran Lokas?

9 JUDGE KARIBI-WHYTE: Actually, that is the

10 evidence you should rebut, that he signed on behalf of

11 Goran Lokas. And if there is any evidence to show that

12 he could not have done that at that time.

13 MR. TURONE: In the submission of the

14 Prosecution, the fact that Mr. Delalic signed a release

15 document on 3rd June 1992, the fact itself that he

16 signed it on that date, when the members of the

17 commission were on a daily basis present in Celebici,

18 rebuts what Jusufbegovic said, Jusufbegovic and the

19 other witness mentioned --

20 JUDGE JAN: You're talking about some other

21 documents, you're talking about release of this

22 particular person.

23 MR. TURONE: But the evidence --

24 JUDGE JAN: That has nothing to do with this

25 release order.

Page 14941

1 MR. TURONE: But the evidence given by the

2 Defence witnesses state that the release of the two

3 doctors was done by Delalic in an exceptional situation

4 just because the members of the commission were not

5 there.

6 JUDGE KARIBI-WHYTE: They were authorised by

7 Cerovac.

8 JUDGE JAN: Authorised by Goran Lokas. And

9 he said, no, he had an authority to sign on behalf of

10 the investigative commission. In fact, this goes

11 against your case that he was in charge. Why should he

12 be signing on behalf of someone else? When he himself

13 is in charge of Celebici camp, why should he sign on

14 behalf of someone else?

15 MR. TURONE: Your Honour, the Defence

16 evidence given by witnesses Cerovac and Jusufbegovic --

17 JUDGE JAN: That is in respect of the two

18 doctors. You're talking about the release of this

19 particular gentleman, whom you want to examine as a

20 witness. And signed specifically on behalf of Goran

21 Lokas, who is admittedly the chairman of the

22 commission. Under the rules of procedure of this

23 commission, the chairman is competent to make an order

24 of this nature.

25 MR. TURONE: I see what Your Honour means.

Page 14942

1 But in the submission of the Prosecution, Mr. Delalic

2 on 3rd June did not have any real good reason to sign a

3 release document, since all the members of the

4 commission, except Goran Lokas, but with somebody else

5 acting as president of that commission were present on

6 a daily basis in Celebici. This rebuts the contention

7 of the Defence witnesses, according to whom the two

8 doctors and Miro Golubovic's release should be regarded

9 as very exceptional situations given to the facts that

10 the members were not present in Celebici. This is the

11 argument of the Prosecution.

12 JUDGE JAN: What does it say for the chief of

13 the investigating organ? This means the chief was

14 competent. Maybe the chief spoke to him on the

15 telephone. First, you'll have to examine Goran Lokas

16 also. But he did on his own without consulting him.

17 MR. TURONE: The evidence shows not only

18 Goran Lokas, but the other members of the commission

19 were also competent.

20 JUDGE JAN: Goran Lokas was competent and not

21 in his own to sign the release order.

22 MR. TURONE: Of course he was. Because after

23 his car accident, he quit the commission and the

24 commission itself could work and function with somebody

25 else acting as president.

Page 14943

1 JUDGE JAN: It's not a case of rebuttal

2 evidence. It's a case of fresh evidence. Because you

3 did produce two release orders. You did produce a

4 number of these orders signed by Mucic. You did

5 produce release orders signed by Delalic in respect of

6 the two doctors. This is really fresh evidence, not

7 rebuttal evidence. And now you can say that this

8 witness is not available to us, now we've obtained a

9 statement. This is fresh evidence.

10 MR. TURONE: It's also fresh evidence because

11 it was not available to the Prosecution.

12 JUDGE JAN: You had two years. The

13 indictment was issued in 1996, why did you not examine

14 all the witnesses?

15 MR. TURONE: Your Honour, the investigation

16 was very, very long and very hard and there are some --

17 there is some evidence which the Prosecution could

18 obtain only in recent times and the efforts to reach

19 all those documents --

20 JUDGE JAN: Don't call it rebuttal evidence,

21 it's fresh evidence.

22 JUDGE KARIBI-WHYTE: Fresh evidence.

23 JUDGE ODIO-BENITO: Fresh evidence.

24 MR. TURONE: I see Your Honours' point of

25 view. And in the submission of the Prosecution, there

Page 14944

1 might be some reasons to call it also as rebuttal

2 evidence. But, in any case, even if it is not rebuttal

3 evidence, and this is not our submission, of course.

4 JUDGE JAN: Make out the case for fresh

5 evidence. You have to make out a case for fresh

6 evidence.

7 MR. TURONE: Well, Your Honours, I think that

8 we explained enough our point of view as far as the

9 possibility of Rajko Dordic being a rebuttal witness,

10 but I think Mr. Cowles will tell you something else

11 about the other aspect of the situation being anyway

12 all these --

13 JUDGE JAN: Fresh evidence has a different

14 test.

15 MR. TURONE: Documents of fresh evidence not

16 previously available to the Prosecution.

17 JUDGE JAN: The test is different. But in

18 all reasonable effort, you could not obtain this

19 evidence earlier. Have you made any effort earlier to

20 contact these detainees?

21 MR. TURONE: We've been making efforts all

22 through these last three years in order to get relevant

23 documents for this case. And, unfortunately, some of

24 the relevant documents did not come early enough as to

25 be available for the Prosecution case. And this, I

Page 14945

1 would say, is covered by Rule 67 (d) of the rules of

2 procedure and evidence.

3 But, in any case, these were the factual

4 arguments, which I wanted to add to Mr. Cowles'

5 argument and I will stop here and let Mr. Cowles go

6 ahead. Thank you, Your Honours.

7 MR. COWLES: Well, I can't add much more than

8 that, other than we would argue that it's fresh

9 evidence, Your Honours -- I'm sorry. I can't add much

10 more than that. On a second fall-back position, Your

11 Honours, that it would be fresh evidence, newly

12 discovered evidence that is relevant and proper that we

13 could introduce. We did not have this document.

14 JUDGE JAN: What is the test for allowing

15 fresh evidence after the Defence has almost closed its

16 case? All your efforts which you made, this evidence

17 could not be relevant to you. If you have not made any

18 efforts, then no fresh evidence can be allowed.

19 MR. COWLES: I understand. And I believe

20 that would be true in your jurisdictions, Your Honours,

21 as well. However, it's my understanding that the

22 Prosecution did not receive this document in its --

23 JUDGE JAN: It's not a question of receiving,

24 you have a team of authorities and they were in the

25 field, they were examining all the detainees. And with

Page 14946

1 reasonable effort, you could have obtained this

2 evidence. And if you could show that you could not in

3 spite of all that, then, of course, it's a case for

4 fresh evidence. You see, to reopen the whole trial,

5 and the Defence will come up with a list of another

6 twenty witnesses. And then, particularly, this

7 document has been signed on behalf of Goran Lokas, who

8 was admittedly, is the chairman of the investigating

9 commission and the other evidence that he was also

10 injured. And maybe Goran Lokas also told him, please

11 sign it.

12 MR. COWLES: I understand, Your Honours.

13 JUDGE JAN: I am mentioning this to you. And

14 you'll have a long trial going right up to next year.

15 You have to make a case of fresh evidence. And despite

16 all your efforts, you could not get this evidence.

17 MR. COWLES: That would be our position, Your

18 Honour, is that this document was among many other

19 documents.

20 JUDGE JAN: Was he one of the detainees at

21 the camp? He was because he got a release order. Why

22 was he not contacted earlier? That's why I ask you,

23 did the OTP examine him during the course of the

24 examination? And you said no.

25 MR. COWLES: I was informed that Mr. Dordic

Page 14947

1 was not examined by the office of OTP during the course

2 of investigation until -- he was not discovered, Your

3 Honour, or found, physically found, until, I believe

4 it's April of this year, 1998, after the closure of the

5 Prosecution case, Your Honour. He physically was not

6 found.

7 JUDGE JAN: I have given you the test.

8 JUDGE KARIBI-WHYTE: Actually from what you

9 said, you discovered it about the 19th of June this

10 year.

11 MR. COWLES: No, Your Honour the document, I

12 believe, is dated 3 June --

13 JUDGE JAN: No, no.

14 MR. COWLES: The document arrived here in

15 June of this year, Your Honours.

16 JUDGE JAN: It's not a question of arriving

17 here. What efforts are made by the OTP investigator to

18 meet the detainees, particularly this person?

19 MR. COWLES: Well, I believe, Your Honour,

20 there has been a continuous investigation by our

21 investigators in the field in Bosnia, in Sarajevo, in

22 the attempt over several months to seize relevant

23 documents from different agencies and offices as well

24 as to locate additional witnesses whose names we may

25 have had, but whose physical whereabouts or presence

Page 14948

1 could never be confirmed or located. And that it was

2 only until April of 1998 that Mr. Dordic was finally

3 found and he had the copy of his release document.

4 JUDGE JAN: Now, the Defence is almost

5 finished.

6 JUDGE KARIBI-WHYTE: Apart from that, is this

7 office not available to you before now? The office of

8 the commission, the state commission?

9 MR. COWLES: That, I don't believe I can

10 comment upon that, I'll defer to Mr. Turone on that.

11 JUDGE JAN: If you'd done that in April,

12 maybe we would have given more time to the Defence to

13 rebut this document also.

14 MR. TURONE: Your Honours, the efforts to get

15 in touch and have cooperation from this commission was

16 started early, very early, two years ago, but the

17 cooperation was insufficient for a very long time and

18 until recent times --

19 JUDGE JAN: -- was providing you with

20 information about the witnesses. We have heard about

21 an association of detainees.

22 MR. TURONE: Of course we had some

23 information from that association, but about the

24 official institutions, the Commission for Prisoners of

25 War, et cetera, we started -- we started very early

Page 14949

1 making our efforts in order to find and receive the

2 relevant documentation, but only in recent time we

3 could reach some better cooperation.

4 JUDGE JAN: When did the OTP first meet

5 Dordic?

6 MR. TURONE: Not one of us ever met.

7 JUDGE JAN: I am talking about your

8 investigators in the field.

9 MR. TURONE: They could only get a copy of

10 the document. As I told you, we discovered the

11 existence of this, of this prisoner, this man, sometime

12 in April, I cannot be very precise about dates, I'm

13 sorry, Your Honour. And the release document was

14 obtained by him sometime later and provided to the

15 Prosecution sometime later. And, again, I cannot be

16 quite precise about the date.

17 JUDGE JAN: In my jurisdiction, the rules in

18 my jurisdiction are not, of course, applicable here.

19 Whenever you make an application for additional

20 evidence always at the close of trial, you have got to

21 file an affidavit, saying, giving the circumstances.

22 Of course it's not applicable here, but here there has

23 to be some basis on which you say that this evidence,

24 despite best efforts, could not be obtained here. And

25 maybe you have to examine maybe Goran Lokas also, the

Page 14950

1 circumstances under which --

2 MR. TURONE: Your Honour, my understanding of

3 a civil law system, things are slightly easier.

4 JUDGE JAN: That's why I prefaced my

5 statement with that observation.

6 JUDGE KARIBI-WHYTE: In the interest of

7 justice demands that the other side should not be taken

8 by surprise in this matter. If there was sufficient

9 reason why you could not have found this document

10 before now, then I would have understood that, why it

11 was. And from what I see, this commission has existed

12 all the time. And your investigation has been on with

13 them. And you could have discovered it with a diligent

14 search. And this is not the time when they could print

15 such evidence, when the purpose is -- without

16 explaining why you could not have done so before now.

17 Let's hear --

18 JUDGE JAN: About this particular witness.

19 MR. O'SULLIVAN: Yes, Your Honours, we have

20 before you, the opposition to this motion, a

21 notification by the Prosecution. I refer Your Honours

22 also to the part of the notification where the

23 Prosecution sets out what this witness' testimony will

24 be. This witness will only produce the document, we

25 are told. He cannot say who signed it or why it is

Page 14951

1 signed for Goran Lokas. We have just heard that they

2 contacted this witness in April, 1998 and disclosure of

3 this document came much later. In other words, they

4 contacted him prior to the close of our Defence case

5 and was disclosed much after we had closed.

6 As Your Honours have pointed out, we say

7 there is no basis for this witness or evidence in

8 rebuttal. And as Your Honours have quite correctly

9 pointed out, the fact that a document is signed for,

10 purportedly signed for someone is all but saying that

11 the document is irrelevant because it does not show who

12 has superior authority over the prisoners at Celebici

13 barracks which Mr. Delalic is accused of being. And we

14 oppose the calling of this witness and this document.

15 This is not proper rebuttal evidence as we have said.

16 And this witness cannot respond directly to what the

17 witnesses, Cerovac and Jusufbegovic testified to in

18 these proceedings.

19 JUDGE JAN: Let's talk about the next

20 witness.

21 JUDGE KARIBI-WHYTE: The handwriting expert.

22 JUDGE JAN: Why did you not examine him

23 earlier when there was a dispute about the genuineness

24 of these documents? This issue was raised so many

25 times.

Page 14952

1 MR. COWLES: It's my understanding, Your

2 Honour, if I may address Your Honour's questions,

3 Professor Stegnar will use the exhibits identified in

4 the Prosecution --

5 JUDGE JAN: I haven't said that. I said why

6 was it not examined before you closed your case?

7 MR. COWLES: These are new documents recently

8 seized, Your Honour.

9 JUDGE JAN: I think you want to view the

10 handwriting in respect of the documents which was

11 seized INDA-BAU.

12 MR. COWLES: I'm going to have to defer, on a

13 specific document issue I'll defer to Mr. Turone.

14 JUDGE JAN: Aren't these documents which were

15 seized from INDA-BAU on which there was given expert

16 evidence?

17 MR. TURONE: Let's say that we, as it is

18 explained in our brief, we sort of divide the possible

19 testimony of Mr. -- of Ms. Stegnar into two different

20 parts.

21 There is one part which has to do only with

22 the very new documents which the Prosecution will try

23 to tender through witness Chambers. And, of course,

24 through the one, also, through, with Mr. Rajko Dordic,

25 if he is allowed to testify. But some new documents

Page 14953

1 signed by Zejnil Delalic, which were seized very, very

2 recently, and then the first part of the testimony of

3 Ms. Stegnar is linked to the rebuttal witness Chambers

4 and to the very new documents he could find in these

5 very, very last few weeks.

6 In that part of the testimony Ms. Stegnar is

7 supposed to compare the signatures on these few new

8 documents not previously available to the Prosecution

9 with three authentic signatures of Mr. Zejnil Delalic

10 which are in evidence as part of his OTP statement, or

11 better, as attachment to the OTP statement, exhibit

12 99-3, and with the signature appearing on Exhibit 127,

13 which was authenticated within the defence case by

14 witnesses Sultanic and Vasogic (Phoen).

15 So this part of the testimony of Ms. Stegnar

16 has really nothing to do with the Vienna exhibits. She

17 is supposed to examine only new documents linked to the

18 testimonial of Mr. Stephen Chambers. The second part

19 --

20 JUDGE JAN: Aren't you then conceding that

21 the other documents obtained from INDA-BAU remain not

22 established that it was written all in the handwriting

23 of Mr. Delalic?

24 MR. TURONE: No, Your Honours.

25 JUDGE JAN: You're only producing the expert

Page 14954

1 with respect to the documents now seized.

2 MR. TURONE: No, no, no. I was just saying

3 that this, I've been talking about right now, is the

4 first part of the testimony of Ms. Stegnar on the new

5 documents.

6 JUDGE JAN: Does this mean you are not

7 interested in proving the propensity of the other

8 documents?

9 MR. TURONE: We are. I'm coming to the

10 second part now.

11 The first part of the testimony concerns only

12 new documents related to the testimony of Mr. Chambers

13 and Mr. Rajko Dordic. And the witness is supposed to

14 compare those signatures with three authentic

15 signatures in evidence.

16 And the second part of the testimony is

17 linked to the defence witness, what defence witness

18 Kevric said about handwriting and signature on Exhibit

19 119, which is actually one of the Vienna documents.

20 Exhibit 119 is a short document with seven or ten

21 lines, hand-written, and the signature of Zejnil

22 Delalic. It was shown to the -- to a defence witness,

23 Mr. Kevric who actually recognised the signature of

24 Mr. Delalic. Then in re-examination at question of the

25 defence counsel, he said, "Well, actually, I'm not

Page 14955

1 handwriting expert, it might be a forgery. I do not

2 know."

3 And on this basis and the submission of the

4 Prosecution, this is grounds to rebut this part of

5 re-examination and have the handwriting expert examined

6 also.

7 JUDGE JAN: If he said, "This is not the

8 handwriting of Mr. Delalic," then you could produce

9 evidence. He said "I don't know." So how is it

10 rebuttal now?

11 MR. TURONE: I see Your Honour's point.

12 JUDGE JAN: If he has taken up the position

13 this is not the handwriting of Mr. Delalic, fair

14 enough, you rebut it. But he said I don't know.

15 MR. TURONE: He said it might be a forgery.

16 JUDGE JAN: Might be a forgery or might not.

17 It leads to many possibilities. Has he said this is

18 not his handwriting?

19 MR. TURONE: We are all performing our

20 professional duty, of course. We submitted this

21 argument as our argument in order to have Ms. Stegnar

22 testify about --

23 JUDGE JAN: Let's analyse it. You see a

24 person make as statement and you want to rebut it by

25 saying it is not true. He is not saying it is not his

Page 14956

1 handwriting. He has not said that. So why the

2 rebuttal?

3 MR. TURONE: Your Honours, I don't want to be

4 argumentative here.

5 JUDGE JAN: Thank you, very much.

6 MR. TURONE: This is, I mean, allow me to

7 tell you, this is our legal argument. And this is the

8 argument through which we indicated also a second

9 possible part of the testimony of Ms. Stegnar. But I

10 would like to emphasise that the two parts are

11 different.

12 The first part is not really linked to the

13 Vienna documents. And even if in the last report Ms.

14 Stegnar might have mentioned some other Vienna

15 documents; in any case, the testimony we describe in

16 our brief as for the first part of the testimony

17 concerns only the new documents, and the three

18 handwriting samples we have in evidence, and not the

19 content of the previous report.

20 For the previous report concerning 119 and

21 the other Vienna documents, we felt it was our duty to

22 bring this argument to the Chambers and ask that Ms.

23 Stegnar be allowed to testify also on that.

24 This is what we thought we had to do in our

25 professional duty. This is all I have to say. It may

Page 14957

1 be on legal aspects of all this, Mr. Cowles, who is a

2 common lawyer, might add something if necessary.

3 JUDGE JAN: The principles of civil law and

4 common law are the same. Fair, expeditious trial,

5 nobody to take advantage over the other.

6 MR. TURONE: The very general principles are

7 certainly okay, under the same truth finding process,

8 maybe this is more strong in civil law systems, but as

9 far as --

10 JUDGE JAN: Might object to that.

11 MR. TURONE: But as far as the case in chief

12 and rebuttal case and the specific rules to that, I

13 would say that the civil lawyer would be a little

14 embarrassed.

15 JUDGE KARIBI-WHYTE: Thank you very much.

16 May we hear you?

17 MR. O'SULLIVAN: We strenuously object to the

18 calling of Professor Stegnar. My learned friend has

19 said that her testimony should only be limited to

20 analysis of newly seized documents based on three known

21 samples.

22 Can I direct Your Honours attention to the

23 notification? The notification has appended to it

24 three expert reports, or two reports and one addendum.

25 The first report dates November 26th, 1997. That's the

Page 14958

1 report that Ms. Stegnar prepared in anticipation of her

2 testimony at that time. And Your Honours will recall

3 that you did not allow the Prosecution to call her.

4 And that was upheld by the Appeals Chamber.

5 She is relying on a report which you said she

6 cannot rely upon in forming her opinions of July 1998,

7 which are the two that I refer to as the other

8 appendices to this notification. And page 7295, that's

9 the hand-written number at the top, I draw your

10 attention to the report of July 17, 1998 wherein Ms.

11 Stegnar refers almost exclusively to the Vienna

12 documents. You will know the Vienna documents are

13 Prosecution documents 104-147.

14 Her report of July is replete with

15 Prosecution exhibits which are the Vienna documents,

16 and the same is true for her addendum of 21 June -- 21

17 July, pardon me, 1998, wherein she makes reference to

18 the Vienna documents.

19 This amounts to the Prosecution trying to

20 circumvent Your Honours decision and our submission,

21 she should not be allowed to testify in regards to the

22 Vienna documents. This is not an appropriate time to

23 call this witness, when Your Honours ruled in December,

24 and upheld on appeal, we say that the issue is closed.

25 It cannot be revisited.

Page 14959

1 She is not looking at newly seized documents,

2 they are trying to indirectly have her look at the

3 Vienna documents, which is completely contrary to what

4 Your Honours ruled. And there is no way to divide her

5 analysis of newly seized documents with the Vienna

6 documents, as my honourable friend has suggested. In

7 fact, if you look at her report, she co-mingles all the

8 documents in reaching a conclusion.

9 This is an inappropriate form of attempting

10 to use an expert when Your Honours have said the

11 Prosecution cannot, and in our respectful submission

12 she should not be allowed to testify.

13 MR. TURONE: If I may just add a few words,

14 Your Honours. I feel slightly insulted hearing that I

15 might have tried to circumvent Your Honours. This is

16 not true.

17 I said immediately that Ms. Stegnar's

18 testimony is divided into two parts. And even though

19 she might have considered some other, some Vienna

20 documents in the report of 17 July, I did emphasise

21 earlier that we would not rely on that part of the

22 report of July as far as the first part of the

23 testimony.

24 In the first part of the testimony Ms.

25 Stegnar -- we are not forced to follow the very

Page 14960

1 arguments of any report of an expert witness. In our

2 testimony we would only ask Ms. Stegnar, as far as the

3 first part of her testimony is concerned, we would ask

4 her to examine the signatures appearing as signatures

5 of Zejnil Delalic on some very new documents linked to

6 witness Chambers, and would, we would ask her to

7 compare these signatures with the ones of Exhibit 99-3,

8 and Exhibit 127, just because this was authenticated by

9 Vasogic and Sultanic in the defence case.

10 We would not consider any other part of the

11 last July report of Ms. Stegnar in the first part of

12 the testimony if the first part of the testimony should

13 be admitted alone and the second part should not be

14 admitted.

15 We would, of course, go on to the second part

16 of the testimony on Exhibit 119, et cetera, if Ms.

17 Stegnar is admitted also on this part of the testimony.

18 So, I don't believe I tried to circumvent

19 anybody here. I hope I was clear about this

20 distinction, and if there is any other explanation I

21 should give, please request me to do that.

22 JUDGE KARIBI-WHYTE: I think perhaps let's

23 finish and I deserve to be a little more enlightened as

24 to the basis of the second part of your application,

25 and why you are now relying on this new documents for

Page 14961

1 rebuttal.

2 MR. TURONE: I'm afraid --

3 JUDGE JAN: Fresh evidence.

4 MR. TURONE: This is part of the testimony of

5 Mr. Chambers, Your Honour, which is not yet objected by

6 the defence of Mr. Delalic.

7 JUDGE JAN: You have not objected to the

8 gentleman appearing as a witness. You objected to

9 Stegnar appearing, you objected to Dordic appearing.

10 MR. O'SULLIVAN: That's correct, in the

11 written response it's not there, Your Honours.

12 JUDGE JAN: In your response you objected to

13 Professor Stegnar. You have not objected to Chambers

14 appearing as a witness.

15 MR. O'SULLIVAN: Correct. That's not in the

16 written report, or the written objection.

17 JUDGE JAN: Do you have no objection?

18 MR. O'SULLIVAN: We say that Prosecution has

19 the burden of proving it's rebuttal evidence.

20 JUDGE JAN: But you have not objected to it

21 in the motion moved by the Prosecution. Four witnesses

22 have been mentioned, one is Dordic and the other is Dr.

23 Stegnar, and as far as you're concerned where is

24 Chambers? You have said Stegnar should not appear and

25 you said Dordic should not appear, but you have not

Page 14962

1 said a word about Chambers.

2 MR. O'SULLIVAN: That was not part of our

3 objection in written form.

4 JUDGE JAN: You don't object to Chambers

5 appearing?

6 MR. O'SULLIVAN: We say the Prosecution must

7 show when he's here that this is rebuttal evidence.

8 JUDGE JAN: We are talking about fresh

9 evidence.

10 MR. O'SULLIVAN: We say the whole time the

11 Prosecution must satisfy Your Honours that it is

12 rebuttal and not fresh evidence.

13 JUDGE JAN: Now they want to produce fresh

14 evidence. You have not said a word about it in your

15 motion, response to the motion.

16 MR. O'SULLIVAN: That's correct.

17 JUDGE JAN: You should have said that.

18 JUDGE KARIBI-WHYTE: Specifically. But that

19 perhaps has provoked me to ask Mr. Turone what actually

20 is the basis of the objection? Because they have now

21 asked for Mr. Chambers to come up to give some

22 evidence, which as far as I'm aware has nothing to do

23 with the rebuttal. It is entirely new.

24 My view is that perhaps even if you did not

25 advert to it, the Trial Chamber has a duty to point out

Page 14963

1 areas which perhaps might have alluded counsel.

2 But if Mr. Turone would be more helpful, you

3 can give us the background of why you want that

4 evidence.

5 MR. TURONE: Your Honours.

6 JUDGE KARIBI-WHYTE: Not as for rebuttal.

7 Except you want to assume that it is rebuttal evidence,

8 but I did not understand it to be that.

9 MR. TURONE: But again, Your Honours, if you

10 allow me, since I -- in my system rebuttal evidence and

11 fresh evidence are treated in a different way than in

12 common law. But I believe that what I could say on the

13 matter of general principles of law, and again I will

14 ask Mr. Cowles to add something, the documents, or some

15 of the documents Mr. Chambers will produce have also a

16 rebutting effectiveness. And I would say that this

17 might be better determined and evaluated by the

18 Chambers, by Your Honours, when Mr. Chambers will be

19 here and will testify about his investigation and the

20 reasons why this investigation could give some results

21 only in July.

22 On the other hand, documents arrived only in

23 July, in the very last days, I would say, certainly

24 fresh evidence, which in the -- well, I'm missing the

25 word now, I'm sorry. Your Honours might evaluate and

Page 14964

1 determine whether to accept him on the basis of Rule

2 67, paragraph b.

3 And the fact that -- I suppose, the fact that

4 the Defence counsel did not include objections in their

5 motion is that they expect to see what happens when

6 Mr. Chambers takes the stand. And I expect them to be

7 very aggressive, maybe, but to do that at that time.

8 And this is why I would ask Your Honours to wait for

9 Mr. Chambers to be on the stand in order to evaluate,

10 then, the fresh evidence and rebuttal evidence which he

11 might produce.

12 I don't know if this is sufficient. If it is

13 not, I again would ask Mr. Cowles to add anything he

14 might be willing to add.

15 JUDGE KARIBI-WHYTE: Thank you for presenting

16 that properly. If you're not presenting evidence in

17 rebuttal but as evidence discovered thereafter, and

18 which you've properly informed the other party, then

19 perhaps it is part of the provision of Rule 67D.

20 Whether it is proper to be admitted for the purposes is

21 a different matter, and we will determine in the course

22 of the proceedings as a whole.

23 But you regard it as evidence which you have

24 now discovered which you think is reasonable to be

25 included as part of the proceedings.

Page 14965

1 MR. TURONE: Yes, Your Honours.

2 MR. O'SULLIVAN: Your Honours, if I could

3 have a final word. Two points: First, we say it is

4 the burden on the Prosecution to show the Chamber that

5 it's rebuttal evidence and not fresh evidence. And the

6 second point is this: I come back to Professor Stegnar

7 and ask Your Honours to look at her report of 17 July

8 and the addendum of 21 July, and with all due respect

9 to my learned colleague, you cannot separate, as Mr.

10 Turone has suggested, her views on the Vienna

11 documents, which Your Honours said she cannot testify

12 to, and her views on new documents.

13 Her report is based almost entirely on a

14 comparison with Vienna documents. She can't come here

15 and testify and say I'm going to blank that out of my

16 mind for the purposes of my testimony. She has

17 prepared a report last November, she prepared the one

18 in July based on that report in large part and makes

19 specific reference to documents Your Honours say she

20 cannot rely upon.

21 So it's incorrect, in my submission, to say

22 that somehow she can play mental gymnastics and ignore

23 her conclusions which are right here, which form the

24 basis of her opinion. And for that reason we say she

25 should not testify.

Page 14966

1 I will sit down after making one other

2 observation. If Officer Chambers is allowed to

3 testify, the issue there is one of search and seizure

4 and chain of custody, I would ask that on the issue of

5 admissibility be deferred to sometime after direct

6 examination, cross-examination and submissions, if any,

7 on issues of admissibility on the chain of custody, if

8 Your Honours rule that Mr. Chambers can testify, as a

9 procedural matter.

10 JUDGE KARIBI-WHYTE: The question of

11 admissibility cannot be determined until we see the

12 documents themselves and determine what they are. The

13 application before us is for permission to introduce

14 these documents. And if your opposition is that it is

15 improper to do so because of the arguments which you

16 have raised, then so be it. But that is not the

17 issue.

18 The argument of the Prosecution is that these

19 are new documents which have just been found and which

20 were not found before now, and they would like to

21 introduce them. Now, that is quite different from

22 Chambers. The Chambers argument is different from that

23 of Professor Stegnar. Professor Stegnar is trying to

24 authenticate the handwriting of your client in order to

25 corroborate whatever has been before the Trial

Page 14967

1 Chamber. This is what that evidence is seeking to

2 achieve.

3 MR. O'SULLIVAN: We say the evidence

4 presented at this time must be limited to rebuttal, and

5 as far as Professor Stegnar goes, she is not a

6 competent expert because of your ruling of last

7 December and a reading of her report of a few weeks

8 ago, which relies almost entirely on her analysis

9 carried out at the time of November, December 1997.

10 She can't separate in her own mind to testify between

11 these two reviews of documents.

12 JUDGE KARIBI-WHYTE: Thank you very much.

13 MR. TURONE: May I ask to add just a few

14 words? It's not a matter of separating something in

15 the head of an expert witness. I said that in my

16 opinion whatever be the report submitted by the expert

17 witness, the examining part might decide not to rely on

18 part of that report and limit the testimony on some

19 specific points.

20 And for the first part of the testimony of

21 Ms. Stegnar, as I said, is a matter of comparing the

22 signatures of the fresh evidence of the new documents

23 with the three samples already in evidence. And that's

24 nothing to do with Vienna documents. Thank you, Your

25 Honours.

Page 14968

1 JUDGE JAN: About Mr. Chambers, he has

2 discovered these documents now, after a search of the

3 records of the Konjic Municipal Headquarters, the TO,

4 whatever it is, the Bosnian army; why was this search

5 not carried out earlier?

6 You see the basic theme of all these trials,

7 whether they take the civil laws or the common laws, is

8 an expeditious and fair trial. Expeditiousness is as

9 important and is really relevant in the context of a

10 fair trial.

11 Why was this search not carried out earlier?

12 MR. TURONE: Your Honours, Mr. Chambers is in

13 a position to explain exactly what were all the efforts

14 done by the investigating team, and he will be in a

15 position to explain.

16 JUDGE JAN: Before he comes himself, you must

17 give us a statement on that. Why was it not this

18 search carried out earlier? He is your witness and you

19 have to satisfy us that this could not have been done

20 earlier.

21 MR. TURONE: We might ask Mr. Chambers to --

22 JUDGE JAN: But you must ask him first,

23 you're the Prosecutor, and satisfy us before we allow

24 Mr. Chambers to come.

25 MR. TURONE: We will ask Mr. Chambers to

Page 14969

1 prepare a statement explaining all this and file that.

2 JUDGE JAN: Statement to the extent why the

3 search was not carried out?

4 JUDGE KARIBI-WHYTE: Mr. Turone, nobody is

5 accusing you for not finding a thing which ought to

6 have been found and handed to you for the purposes of

7 your case. The substantive argument in all questions

8 of this nature is that with reasonable diligence this

9 document could have been found before now.

10 JUDGE KARIBI-WHYTE: Not that it has not been

11 found, could have been found. The institution has been

12 there. His offices were there. And if they had

13 actually done it in the proper way, they could have

14 been found.

15 MR. TURONE: I see Your Honour's point and I

16 agree with that as a matter of principle. And I would

17 say that Mr. Chambers is in a position to explain that

18 all was done with due diligence and there is an

19 explanation why all this came out and had the result

20 only these last few weeks. But if I have not

21 misunderstood Your Honours' request, Your Honours want

22 Mr. Chambers to let Your Honours have the statement.

23 JUDGE JAN: Not Mr. Chambers, the

24 Prosecution.

25 MR. TURONE: I mean the Prosecution have a

Page 14970

1 statement of Mr. Chambers explaining all this. Is this

2 what I have been requested?

3 JUDGE JAN: The statements of Mr. Chambers

4 may be the basis of the Prosecution's case. You have

5 to tell us. The statement of what Mr. Chambers' said

6 may be the basis of your explaining why this was not

7 done earlier. We're not interested in the statement of

8 Mr. Chambers, we're interested in the statement of the

9 Prosecution.

10 MR. TURONE: All right. All right, Your

11 Honour, that will be done.

12 JUDGE KARIBI-WHYTE: You see the first thing

13 that provokes my inquiry was when in your motion you

14 indicated that he will testify on the 19th June 1998,

15 he carried out searches of the premises, including

16 Canada. Now, this is so many months away from one

17 intensive investigation about this matter was that --

18 MR. TURONE: Yes, Your Honour is right. It

19 happened --

20 JUDGE KARIBI-WHYTE: It becomes unpardonable

21 to imagine that you can now come and tell us that you

22 have not found such relevant documents.

23 MR. TURONE: This happened after an enormous

24 number of requests, letters to the representative of

25 the Bosnian government at the embassy here in The

Page 14971

1 Hague. A large number of efforts which would be

2 explained to Your Honours with this statement and

3 further explanation by the Prosecution.

4 JUDGE KARIBI-WHYTE: You've got so many

5 documents of a like nature from the same commission,

6 state commission, for the missing. We've got so many

7 records from them and we've been dealing with them.

8 Because the burden is on you to show that you could not

9 have found this document at the time when you made the

10 investigation. It is only on that basis that the Trial

11 Chamber will be able to give you the relief. Because

12 it's not enough to wait for him to come and tell us why

13 he could not have, he couldn't.

14 JUDGE JAN: Yes, Mr. O'Sullivan, you wanted

15 to say something?

16 MR. O'SULLIVAN: His Honour Karibi-Whtye has

17 said what I was thinking and that is that we're in the

18 second year of this trial, and, perhaps, the third or

19 fourth year of investigations concerning these matters.

20 And the Prosecution, despite what they say, despite

21 what reasons they may offer, I think is a matter of

22 law. It's unfair at this point to produce documents in

23 June, 1998.

24 JUDGE JAN: There is also a psycho, forensic

25 expert you want to examine. Maybe you've got a case on

Page 14972

1 that, even to introduce a new defence.

2 MS. McMURREY: Your Honour, that's what I was

3 going to say.

4 JUDGE JAN: He was not a free agent. He had

5 independent personality and he was doing everything to

6 please his superiors. Your defence is basically this

7 is a new element and I think the Prosecution has a

8 right to rebut that, to express in this regard and not

9 realise it. Even if they're reliable, they do not lead

10 to a plea of diminished liability.

11 MS. McMURREY: Your Honours, we're not

12 objecting because under any common law system, or any

13 system that I am aware of, this is proper rebuttal

14 evidence and I had expressed my lack of objections to

15 the Prosecution earlier, so I believe that is totally

16 proper. If I had an objection that I could stand by, I

17 certainly would have offered it to the Court.

18 JUDGE JAN: I am sure of that.

19 JUDGE KARIBI-WHYTE: I think we'll grant the

20 first relief definitely. Your application to call an

21 expert witness, Dr. Landy Sparr, we grant that. But I

22 am not satisfied that Rajko Dordic would be a suitable

23 witness for rebuttal. You have not given enough

24 sufficient background why Stephen Chambers would come

25 to give new evidence, which is -- actually, I really

Page 14973

1 didn't see the value of Professor Stegnar, except you

2 want Professor Stegnar to come and give evidence on the

3 signature.

4 MR. COWLES: Your Honour, if I just may

5 address the issue of Investigator Chambers, I agree

6 certainly with Your Honours' permission that we should

7 present to the Court facts showing why this evidence is

8 fresh; why it could not have been seized earlier by the

9 exercise of reasonable diligence during the course of a

10 very lengthy investigation. I agree with Your Honours

11 and that is completely appropriate.

12 I would ask the Court leave to, perhaps,

13 amend, to file as soon as possible by the first part of

14 next week, an addendum to our proposal concerning Mr.

15 Chambers and the efforts of the investigation to seize

16 documents and why these documents are new, fresh

17 documents have just now been seized factually. If we

18 could provide to the Chamber those facts.

19 JUDGE JAN: I am sure you come from common

20 law. You can't keep the trial hanging on.

21 MR. COWLES: I agree with that. I

22 understand, Your Honours. I would just ask the Court's

23 indulgence to be allowed to supplement that factually.

24 JUDGE JAN: Anyway, I think she's concluding

25 her evidence next week. You said Wednesday as the last

Page 14974

1 day. You can bring your expert, this forensic, science

2 expert Thursday or Friday.

3 MR. COWLES: Yes, Your Honour, and he will be

4 available to testify Tuesday or Wednesday, if we're

5 able to conclude Ms. McMurrey's case.

6 JUDGE JAN: Make it Thursday or Friday.

7 MR. COWLES: Thursday or Friday. That's

8 fine.

9 JUDGE KARIBI-WHYTE: Thursday morning on the

10 condition --

11 MR. COWLES: I believe we've been planning

12 all along to be able to present him mid-week, so that's

13 fine.

14 JUDGE JAN: Please do that, so that we don't

15 waste any more time, otherwise, we'll have three free

16 days off.

17 MR. COWLES: We're ready to proceed. As I

18 said with Dr. Sparr, we will be ready Wednesday, if we

19 can present him. In fact, we can do that.

20 JUDGE JAN: Does that suit you?

21 MS. McMURREY: Your Honour, I feel so

22 confident that they'll be completed with Dr. Sparr by

23 the end of Friday, that I have made my reservations to

24 leave at 7.30 Friday evening. And my niece is getting

25 married Saturday, August, 1st. So I feel very

Page 14975

1 confident that that part will be completed.

2 MR. O'SULLIVAN: Have I understood your

3 ruling that witnesses Dordic, Chambers and Stegnar will

4 not be called?

5 JUDGE KARIBI-WHYTE: Yes, I think Dordic, his

6 evidence is not rebuttal evidence and Chambers hasn't

7 given enough grounds for calling in new evidence. And,

8 similarly, Stegnar, there is no basis for Stegnar. The

9 only evidence which definitely falls within the

10 rebuttal rule is Dr. Sparr.

11 MR. COWLES: Your Honours, may I have just a

12 moment to confer with Mr. Turone? Thank you, Your

13 Honours, we have nothing further.

14 JUDGE KARIBI-WHYTE: Thank you. I think

15 that's all we have for today. Well, we spent the week

16 with comparative leisure. I did not expect that. I

17 hope we'll do better next week and not waste so much

18 time.

19 JUDGE JAN: And allow Ms. McMurrey to attend

20 the wedding of her niece.

21 MR. COWLES: If I may just clarify. If Ms.

22 McMurrey's case is finished by, say, Tuesday evening,

23 is it the Court's intention that we can proceed into

24 Wednesday?

25 JUDGE JAN: Don't waste any time.

Page 14976

1 JUDGE KARIBI-WHYTE: Yes. Any time she

2 finishes, if you can call your next witness, offer it.

3 MR. TURONE: Did I understand that Ms.

4 McMurrey has only witness Gripon and nobody else?

5 JUDGE KARIBI-WHYTE: Well, we don't know more

6 than Gripon.

7 MR. TURONE: There might be other witnesses?

8 JUDGE KARIBI-WHYTE: That's the Defence. I

9 wouldn't know what the Defence has in mind.

10 MS. McMURREY: Yes, Your Honour, I am still

11 hoping for the one who got sick at the airport to make

12 a miraculous recovery.

13 JUDGE KARIBI-WHYTE: So we'll see you on

14 Monday at 10.00 a.m.

15 --- Whereupon proceedings adjourned at

16 1.20 p.m., to be reconvened on

17 Monday, the 27th day of July, 1998,

18 at 10:00 a.m.