Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12397

1 Wednesday, 17 January 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.01 a.m.

5 JUDGE ANTONETTI: [Interpretation] Registrar, please call the

6 case.

7 THE REGISTRAR: [Interpretation] Good morning, Mr. President.

8 IT-04-74-T, the Prosecutor versus Prlic et al.

9 JUDGE ANTONETTI: [Interpretation] Let me welcome this morning

10 everybody in the courtroom, the Prosecution, the Defence, and the

11 accused.

12 Mr. Ibrisimovic, do you have any news from Mr. Pusic? We heard

13 that he's better, but maybe his counsel knows more. We are going to move

14 into private session before that.

15 [Private session]

16 (redacted)

17 (redacted)

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Page 12398

1 [Open session]

2 THE REGISTRAR: [Interpretation] We are in open session.

3 JUDGE ANTONETTI: [Interpretation] Before I read the decision, I

4 give you the floor, registrar, to give us an IC number.

5 THE REGISTRAR: [Interpretation] [Previous translation

6 continues] ... 5D submitted a list of objections to tender through Witness

7 CT. That will be given Exhibit number IC 217. Thank you.

8 JUDGE ANTONETTI: [Interpretation] Thank you. I will read very

9 slowly the oral decision that follows: The decision relates to additional

10 time granted an accused during cross-examination. The Trial Chamber will

11 fix the time for examination and cross-examination of every witness in

12 keeping with the envisaged time by the Prosecution on the estimate of the

13 19th of January, 2006, in keeping with Rule 65 ter of the Rules of

14 Procedure and Evidence. The Trial Chamber also grants additional time to

15 every accused depending on possible requests with regard to witnesses,

16 either through oral testimony or exhibits that are produced by the

17 Prosecution during examination-in-chief. Under these circumstances, the

18 Trial Chamber set the time allowed for examination-in-chief for Witness CU

19 at three hours, specifying that the accused would have respectively for

20 Mr. Pusic one hour, for Mr. Praljak one hour, for all the other accused 30

21 minutes each.

22 During yesterday's hearing, the counsel of Mr. Pusic indicated

23 that he would cede one part of his time to accused Praljak. In view of

24 that, having used 15 minutes, Mr. Pusic's counsel in theory ceded to

25 Mr. Praljak 45 minutes.

Page 12399

1 The Prosecution has objected to this manner of proceeding. The

2 Trial Chamber has confirmed -- has conferred yesterday on this issue and

3 decided to proceed as follows in the future: Additional time granted an

4 accused should not be used solely except for his -- should be used solely

5 for his own cross-examination and cannot be used by another accused. As a

6 result, following this oral decision, Accused Praljak does not have at his

7 disposal today more than 45 minutes having used 15 minutes yesterday.

8 There it is. We are now going to move into private session, lower

9 the blinds, and usher in the witness.

10 [Closed session]

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Page 12400











11 Pages 12400-12486 redacted. Closed session















Page 12487

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12 [Open session]

13 JUDGE ANTONETTI: [Interpretation] Since we're in open session,

14 Mr. Murphy would like to say something.

15 MR. MURPHY: I will not take very long, but I did ask to go into

16 open session for the purpose of addressing one or two issues that arose

17 before the break, and this does not involve anything that cannot be said

18 in open session.

19 Your Honour, the entire Defence, I believe, is somewhat concerned

20 by one or two of the things that the Bench mentioned just before the break

21 in response to Mr. Praljak. Primarily, the -- the suggestion that the

22 time issues will in some manner resolve themselves because the accused

23 have the right in due course to testify in their own defence.

24 Your Honour, of course there have been some differences between

25 the Bench and the bar as to the merits of adversarial versus inquisitorial

Page 12488

1 proceedings but these are essentially adversarial proceedings at least to

2 this extent: That the Prosecution bears the burden the of proof, and part

3 of that burden of proof is that by the time the Prosecution closes its

4 case, there must be at least a prima facie case against the accused.

5 Failing that, of course, the Defence can make a motion under 98 bis for a

6 judgement of acquittal. And the concern we have, Your Honour, when the

7 Judges say the accused can testify, that's an issue that should not

8 strictly arise unless and until the Judges have found that there is a case

9 for them to answer. And if the Trial Chamber should have reached a

10 conclusion on that issue before the end of the Prosecution case, obviously

11 that would be a matter of the gravest concern to the Defence, because it

12 would appear that that issue has already been --

13 JUDGE ANTONETTI: [Interpretation] Just a moment. I'm going to

14 stop you there, Mr. Murphy. When I said that I had the impression that

15 there was some misunderstanding, when I said that an accused can testify,

16 it is pursuant to the Rules, and the Rules provide for the fact that on

17 the basis of the examination-in-chief by the Prosecutor an accused can

18 testify if he so desires and presents -- after the Prosecution case, that

19 is. And the accused can testify as a witness.

20 So there was a misunderstanding there.

21 MR. MURPHY: Well, Your Honour, yes, I do understand that. My

22 point is, Your Honour, of course that unless there is a case for the

23 accused to answer, the question of him testifying would not arise, and the

24 Prosecution has the burden initially of persuading the Trial Chamber that

25 there is a case to answer. We certainly don't make that concession and so

Page 12489

1 the burden still rests on the Prosecution.

2 Your Honour, the -- the point that Mr. Praljak made earlier, we

3 feel, was well taken. This witness illustrates perfectly the point that

4 both the Prosecution and the Defence have been making here. We had a

5 witness whose evidence is really vital to both sides as to the

6 understanding of the events on and around the 9th of May and subsequently

7 in 1993. It was obvious from Mr. Scott's direct examination that he felt

8 he did not have time to develop the evidence as he would have wished. A

9 great deal of the evidence was in a sense taken for granted through

10 leading questions. I don't criticise Mr. Scott for that; he had no

11 alternative. But it makes it difficult for the Defence to adequately

12 challenge an and I think in the case of all the accused except perhaps

13 Mr. Coric's counsel we literally ran out of time in the middle of making

14 make what we thought were interesting and compelling points.

15 Now, Your Honour, we do feel -- we've said this before I don't

16 want to repeat it, especially since it is pending in the Appeals Chamber,

17 but nonetheless there does come a time when the rights of both the

18 Prosecution and the accused are prejudiced by the restrictions on time,

19 and I want to again renew the objection we've made to the conduct basis of

20 the trial and ask that ample time be allowed and that the Judges conduct

21 it in the interests of fairness to both parties rather than the completion

22 strategy. And I -- I think I may have spoken for all my colleagues but I

23 think they will amplify my comments if they wish.

24 JUDGE ANTONETTI: [Interpretation] Just one point, Mr. Murphy. I

25 would like to thank you for telling us that, but to understand what you're

Page 12490

1 saying most exactly, you said that the witness that was here, that there

2 were certain points that he raised and that the Defence did not have a

3 chance because of the time constraints to cross-examine him on those

4 matters. I think that's what you said.

5 Now, what points would you like to raise? What points were they?

6 Because it seems to me that when he responded to the examination-in-chief

7 and the questions of the Judges he answered most of them. But what are

8 you referring to precisely, and what part would you like to have had the

9 opportunity to question the witness about, which points?

10 MR. MURPHY: Well, Your Honour I can only speak for the Stojic

11 Defence on that with any great precision. I know in our case that we had

12 a number of other documents that we would have wished to put to the

13 witness and I think Ms. Nozica would have preferred to ask a large number

14 of other questions arising from the documents that we did put, to go into

15 detail about them.

16 Now, my -- my colleagues will -- will speak for themselves as to

17 their position, but I had the impression as an experienced advocate that

18 in general the cross-examination was necessarily rushed in order to comply

19 with the time limits, as indeed was the direct examination. And it's our

20 position, Your Honour, that in a case of this magnitude, which is in a

21 sense now the flagship of the Tribunal, if I can put it that way, the

22 emphasis should be on a calm and unhurried exploration of the facts rather

23 than a predetermined timetable in deference to the Security Council.

24 We've been through issues before and I know Your Honours understand them,

25 but I just felt in particular regard to this witness it was time perhaps

Page 12491

1 to make this point again because it did arise, I think, particularly

2 clearly today.

3 MR. KARNAVAS: If I could just supplement just -- just --

4 JUDGE ANTONETTI: [Interpretation] Just a moment, Mr. Karnavas.

5 I'll just respond to Mr. Murphy, and then I'll give you the floor.

6 While you were talking Mr. Murphy, I was looking at the documents

7 of the cross-examination of your client, and I looked through the

8 documents when there is a cross-examination, and I've just seen that most

9 of the documents were -- you asked about most of the documents. They were

10 presented to this witness and to another. And if you really had a very

11 essential and important document, I wouldn't have missed that. Rest

12 assured I would have raised it of my own accord.

13 So I take note of what you've said, but I do not see in what way

14 your defence was deprived of any of the things you wanted to do pursuant

15 to documents.

16 MR. MURPHY: Let me just at this if I may: Of course when we

17 prepare the cross-examination, we're doing so in the light of the time

18 limits that the Trial Chamber imposes on us so we try to discipline

19 ourselves to restrict the cross-examination in that way. But that raises

20 another question. Your Honour refers to the matter of defendants, the

21 accused working together, and, Your Honour, I think it's been indicated in

22 the course of the trial that we try to do that as much as possible. We

23 make joint filings and we try to agree on the time. But again, Your

24 Honour, the -- if the impression is being given that the six accused are

25 operating as in a sense a team, that is not the right impression because

Page 12492

1 each accused is responsible for his own defence. And while we do try to

2 cooperate as far as possible, we are also working in our own client's best

3 interest, and that from time to time will mean that we cannot necessarily

4 agree with our colleagues as to what should -- how the cross-examination

5 should be conducted. And Your Honour, I'm sure, appreciates that facts.

6 MR. KARNAVAS: If I may be heard just very briefly on the points

7 that you raised, Mr. President.

8 From the Prosecution's standpoint this witness was important, in

9 my opinion, one, they wanted to establish what happened to the gentleman,

10 how he was treated, but also because of his position they wanted him to

11 comment on certain documents, documents which they believe would lead the

12 Trial Chamber into believing that it was the HVO that were the aggressors,

13 particularly as it relates to May 9, 1993, setting up their witnesses to

14 follow.

15 At least from a common -- from a common position --

16 JUDGE ANTONETTI: [Interpretation] Just a moment, please. My

17 colleague wanted to say something but let me say that the fact that the

18 HVO on the 9th of May attacked is something that was noted by the Chamber

19 after following the Naletilic trial. Now, if you want to demonstrate the

20 contrary, you can always do that.

21 MR. KARNAVAS: Again --

22 JUDGE ANTONETTI: [Interpretation] You will have an opportunity to

23 do so through your cross-examination and witnesses. But this is a fact

24 that the Trial Chamber took note of.

25 MR. KARNAVAS: Very well, Your Honour. I understand that

Page 12493

1 Judge Trechsel and you come from a different legal system, and I

2 understand that Judge Trechsel believes that I have to put a case on

3 forward. I do not. I can attack their case.

4 The documents that General Praljak wanted to introduce and what we

5 wanted to develop was for you to have a complete picture. Right now your

6 picture is, at least it may be - I don't know but I suspect - that it was

7 the Croats that attacked on May 9th,end of story. What we're trying to

8 show is that there is a great deal of evidence for months on end that the

9 other side was preparing. The other side was positioning itself. The

10 other side was procuring weapons. The other side is issuing orders,

11 orders that are secret. The other side is planting their own men into the

12 HVO not only to gather information but also in order to gather weapons and

13 to attack. And so it leads us then up to May 9 and that we wanted to do

14 today is demonstrate that May 9th is not an open and shut issue. It is

15 something we believe that if it were -- if the HVO were the initial

16 aggressors, if you want to use that word, it was done so on a pre-emptive

17 basis and under international law that is a form of self-defence that is

18 recognised.

19 (redacted)

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Page 12494

1 (redacted)

2 (redacted)

3 (redacted) point but with respect to these

4 events. We're trying to help you. That's what we're trying to do.

5 I have full confidence that if you have all of the evidence you

6 will make the right decision. But what I'm saying is, please allow me to

7 give you the full picture.

8 And now we see two questions, two very important questions, one

9 from Judge Trechsel, one from Judge Prandler. Both are saying why are you

10 introducing these documents? Why aren't you following up? Well, the

11 answer is very simple: Time. We don't have the time. If we had the

12 time, we would be able.

13 So this has become an exercise of getting the documents in. If

14 you see my cross-examination, I'm rushed to get the documents in hoping at

15 some later time I'm going to be able write out an argument. I don't think

16 this is quite as persuasive. I'm not being critical I understand you're

17 under a tremendous amount of pressure and I sympathise with that but there

18 are some witnesses that I believe we need to be a little bit more flexible

19 on and you will -- you will see that at least this particular Defence team

20 will not abuse any time issue requested.

21 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, the only pressure

22 that we do have is to have the truth out. There are no other pressures.

23 MR. KARNAVAS: Let me help you out, Mr. President. I would be

24 more than happy this help you out, and I'm trying to do that. Thank

25 you.

Page 12495

1 JUDGE TRECHSEL: May I be allowed, as Mr. Karnavas has gone into

2 some speculations on what my opinion and attitude to the towards might

3 be.

4 I do not think that there is any difference. There may be in

5 certain cases. I may not be as poker faced, perhaps, as the ideal

6 American Judge would be, who, by the way, would not decide either, but I

7 fully accept that the Defence needs the possibility to cast doubts, to

8 present a different picture of reality. Please do not doubt this. That

9 is very legitimate, and I absolutely accept this.

10 MR. KARNAVAS: And, Judge Trechsel, I don't mean to be making any

11 suggestions, but take -- take General Praljak's presentation. He spent a

12 tremendous amount of hours trying to make it as cogent and as concise as

13 possible, and I think half an hour more is not going to kill us. It's not

14 going to kill the UN bank. We're going to make it up somehow. We see one

15 witness isn't able to attend this week. We're going to make it up. We're

16 going to find ways. But important witnesses, when we say to you,

17 Your Honours, we need an extra 15 minutes or half an hour, we don't say

18 that because we want to take up your time; we say it because we know the

19 case. We know how valuable it is, and if you wish for us to give you the

20 heads up, to give you some -- a predicate as to why we need the

21 additional, and what points we're trying to challenge, we'll be more than

22 happy to and perhaps we have failed in communicating that and maybe in the

23 future we will endeavour to do that, but please understand that we are not

24 trying to waste your time.

25 JUDGE ANTONETTI: [Interpretation] I'm going to give the floor to

Page 12496

1 Mr. Stewart, but before I do so, I'd just like to say this: Mr. Praljak

2 did do a lot of work, put in a lot of work, and the map is a result of a

3 lot of work on his part, and the part that we Judges looked at and we

4 accorded it an IC number is useful. That's quite obvious. But you ask

5 questions and we ask the witness a question and the witness was very

6 clear. So we weren't able to go beyond that. He said that the movement

7 of units did not come under his job and remit; it was logistics. So there

8 we have it.

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 Mr. Stewart, go ahead, and we're going to have the witness shown

15 in after that because the witness will be wondering what's happening.

16 MR. STEWART: I would like to say something very briefly but I

17 wonder if General Praljak could have the opportunity first, Your Honour.

18 I didn't see him there behind.

19 THE ACCUSED PRALJAK: [Interpretation] Very briefly, Your Honours.

20 Precisely this example as to who attacked whom on the 9th of May in Mostar

21 we have seen the Spanish Battalion's report that says that HVO turned back

22 units, and we heard another report about the Muslim who was watching all

23 that. The Chamber actually made its best decision based on -- at -- on

24 Tuta and Stela but based on documents that were not thoroughly examined,

25 and that judgement was made on the very few documents produced.

Page 12497

1 You have evidence that the brigade from Metkovici crossed over to

2 the other side, but I cannot discuss with this witness how many people

3 were killed in Metkovici.

4 JUDGE ANTONETTI: [Interpretation] Do not go into substance,

5 because we are now discussing purely procedural issues. As to substance

6 and merit, you will have ample opportunity to discuss it with other

7 witnesses. And of course the Trial Chamber always has the right to invite

8 its own witnesses.

9 Mr. Stewart first and Mr. Scott later.

10 MR. STEWART: Your Honour, I appreciate being allowed the

11 opportunity, if Mr. Scott doesn't mind at this point.

12 MR. SCOTT: If I can interrupt. My apologies to Mr. Stewart. The

13 most pressing point of the matter, there's a number of redactions that

14 have to be made very quickly before we lose control of that.

15 Unfortunately, since we have gone into open session there are a number of

16 things that will end to identify the previous witness. So at this time,

17 and I'm happy to give behalf additional time the Chamber wants to give to

18 Mr. Stewart, but I'm obligated to raise this without further delay.

19 There needs to be a redaction on page 97, line 4; a redaction on page 97,

20 line 9; a redaction on page 99, line 19; and a redaction on page 99, line

21 23.

22 JUDGE ANTONETTI: [Interpretation] We will see, but I don't think

23 that anything identifying of the witness was mentioned. I take note of

24 what you said, and we will investigate it.

25 MR. SCOTT: I We certainly ask the Chamber to look at it. In our

Page 12498

1 view at least several of them are a bit -- I'm not going to say -- I'm not

2 going to make the problem worse by pointing them again, but --

3 JUDGE ANTONETTI: [Interpretation] Yes, but the legal officer will

4 tell us, will give us the transcript presently, and we will look into it.

5 Believe me, I was extremely alert on this matter.

6 MR. SCOTT: Your Honour, I give the floor back to Mr. Stewart, but

7 I mean frankly, to be perfectly honest, we're not going to start the

8 witness today which is unfortunate, but I do want to be heard in

9 response. It's not fair to give the Defence collectively 20 or 25 minutes

10 and not give the Prosecution any time to reply. I do want to be heard

11 today after Mr. Stewart has finish.

12 MR. STEWART: I'll be as quick as I can to -- Mr. Scott can have

13 that opportunity, Your Honour. I don't have very much to say. First of

14 all, our colleagues do speak for the Petkovic Defence on these points as

15 well today. We support and associate ourselves with what they've said.

16 May we just add that Mr. Murphy is completely right to indicate that

17 coordination among the Defence teams, two counsel and a client on every

18 Defence team as a minimum has its distinct limitations as a practical

19 matter. There is only so much we can agree. There is only so much we can

20 do but we assure Your Honour that we do try very hard. And all I have to

21 add to our learned colleagues' submissions is this, Your Honour, that a

22 useful cross-check is a scrutiny of the transcripts of today's hearing and

23 that demonstrates if one looks at the transcripts it demonstrates the

24 pressures on experienced counsel my own lead counsel, for example, in

25 showing documents to the witness was continually in the position where the

Page 12499

1 time pressures prevented her from doing what she clearly wished to do,

2 which was to have the witness scrutinise the document in more detail to

3 answer the questions. The same applied in relation to maps for

4 General Praljak. If these jobs are going to be done and when the work has

5 been done, the preparation has been done, time to actually have the

6 witness look at the material and answer the questions thoroughly is

7 absolutely critical and that cross-check against today's transcript will

8 amply demonstrate the point.

9 JUDGE ANTONETTI: [Interpretation] Mr. Scott. You wanted to say

10 something. You have the opportunity.

11 MR. SCOTT: Mr. President, Your Honours, first of all, I -- just a

12 lead-in to my additional comments. I think it's unfortunate in the last

13 half hour at various times a number of people have started arguing the

14 merits of the case and arguing their positions, and that's not what we're

15 here to do. I could respond to every point that's been made about the

16 Prosecution position, the Prosecution theory of the case, what we contend

17 the evidence shows, but I don't think we should do that now. And I don't

18 think Mr. Praljak should, I don't think other counsel should stand up and

19 again -- arguing the merits of their case. This is a procedural point

20 that's being addressed now, and I appreciate the reason for --

21 Mr. Murphy's raised it.

22 Now, having said that, Your Honour, I feel the need under these

23 situations, because the Defence comes up and states these positions, and I

24 give them credit to the extent that they've mentioned that some of this

25 applies to the Prosecution as well, but nonetheless I must put a line

Page 12500

1 under that. As Mr. Murphy himself said several times, it is the

2 Prosecution itself in this case that has the burden of proof. The Defence

3 has the burden to prove nothing. And I can assure the Chamber that if

4 anyone in this courtroom feels the constant pressure of time, feels the

5 constant pressures of the limitations that, with all respect, the Chamber

6 has put on the Prosecution case, if anyone feels that most in the

7 courtroom it is the Prosecution. And I cannot -- I simply -- and I also

8 want to say, you know, everyone stands up and says, Your Honour, we worked

9 so hard to present our case and we've put so much effort into that, well,

10 Your Honour, that goes for the Defence -- Prosecution ten times as well.

11 We work very hard. We work weekends, we work at night, we stay all night,

12 we work very hard to present this case to the Chamber the best we can. So

13 I accept what counsel says, but what's -- it's a two-sided coin,

14 Your Honour. Prosecution works very, very hard to try to present this

15 case to the Judges as best we can. We don't do it perfectly; we make

16 mistakes. But if anyone wants to say, Oh, you know, we're so sorry, you

17 know, you're not receiving this, we worked so hard on it, Your Honour the

18 Prosecution works hard on this all the time - all the time - and our ox's

19 doors, so to speak, just like anyone else's or more so.

20 Now, in the circumstances we are in and the reason I made the

21 point yesterday about the allocation of the additional, and I'm going to

22 use the term, "special time," given to each accused when that accused is

23 particularly affected particular evidence. The reason I made that,

24 Your Honour, and I -- I will have to say -- I will say -- I'll slow down.

25 I will say that to take some of these positions is not the position I

Page 12501

1 would like to take. But again, when the Prosecution has been constantly

2 put in this situation and we're put at a disadvantage, when an hour of

3 direct examination is cut, then I have no other alternative; I have no

4 alternative. I am obligated out of fairness to my part of the case to

5 make sure the Chamber understands there is -- the Prosecution is not put

6 at any further disadvantage and indeed, with all respect, that the Defence

7 is not given more favourable treatment or given more time because that

8 time ultimately comes out of the Prosecution case. That is the reality.

9 And then with all respect, that is one of the things led the Chamber to

10 issue its ruling before about cutting the Prosecution time.

11 The Chamber became concerned, I'm sure, with the passage of time

12 on the calendar and therefore in response to that cut the Prosecution's

13 time, and just as the Defence continues to take more time now with all --

14 and again, I wish we all had more time, but we don't. And with -- our

15 time is limited and the Defence takes more time, at the end of the day,

16 with all respect, the Chamber's going to come back and say, We're going to

17 have to cut the time again because the calendar's going too slow. So it

18 does affect the Prosecution. It affects us directly and importantly.

19 So I -- I'll sit down, Your Honour. I just simply want to make

20 the point for the record, when the Defence stand up and with great respect

21 to Defence counsel who I do have great respect for, they may not think

22 that but I do, but when they stand up and talk about their concerns and

23 how their treatment how their treatment -- how their treatment about

24 getting a fair trial, Your Honour, take what they say and multiply that

25 five times for the Prosecution because we're very concerned about getting

Page 12502

1 a fair trial. And we can't have one side advantaged over the disadvantage

2 of the other. Thank you.

3 JUDGE ANTONETTI: [Interpretation] Right. We've heard Mr. Scott,

4 and as usual the Judges work together and we're going to deliberate on

5 what both sides said. In any case, I thank you for your remarks.

6 Concerning tomorrow's hearing, as you know, protective measures

7 are envisaged and granted for the witness who I will not name for obvious

8 reasons. They include a pseudonym and facial distortion.

9 Concerning time, we decided a moment ago that inasmuch as we have

10 four hours at our disposal tomorrow, we will give the Prosecution two

11 hours and two hours to the Defence. We would appreciate it very much if

12 nobody went beyond their time limit, and the present arrangements do not

13 envisage and do not make provision for any questions by the Judges or any

14 procedural problems. So please try to stay within your two hours.

15 The next witness, whom I am not naming, will speak to events that

16 have been the subject of testimony by other witnesses.

17 So, Mr. Scott, you can also have two hours for your

18 examination-in-chief.

19 I have to stop here because another trial is schedule for the

20 afternoon, and one of our colleagues is working 10 hours a day at two

21 trials. We are adjourned.

22 --- Whereupon the hearing adjourned at 1.46 p.m.,

23 to be reconvened on Thursday, the 18th day

24 of January, 2007, at 9.00 a.m.