Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6137

1 TTuesday, 24th September 1996.

2 (Closed Session)











13 Pages 6137-6142 in closed session.

















Tuesday 24th September 1996

Page 6143

1 (Open Session)

2 (10.30 a.m.)

3 THE PRESIDING JUDGE: Mr. Niemann, on I guess it was 20th, last

4 Friday, we had directed the parties to present oral arguments on

5 the issue of whether or not the statements of witnesses taken by

6 the Defence may be produced for use by the Prosecutor on

7 cross-examination of the witness once the witness testifies. At

8 that time the Defence indicated they needed additional time.

9 We have received the material submitted by the Defence

10 yesterday and we have received the material submitted by the

11 Prosecutor on Friday. Without suggesting what the burden might

12 be with respect to this issue, Mr. Niemann, would you proceed

13 first, please?

14 MR. NIEMANN: Yes, your Honour. Your Honour, I have prepared an

15 outline of argument which may assist the Chamber while I go

16 through this argument. I hand up a copy of that. There are

17 four copies. The Defence have been provided with a copy of the

18 outline, your Honour.

19 THE PRESIDING JUDGE: I am sure your argument will be so orderly that

20 we do not need it, but if you say it will help, we will look at

21 it. We will not hold you, I suppose, to it.

22 MR. NIEMANN: Your Honours, the issue, it seems to us, for

23 determination here is during the course of the trial and after

24 the witness has testified in chief, can a cross-examining party

25 call for the production of a previous relevant statement of the

26 witness in possession of either the witness, the accused or the

27 opposing party and does the Tribunal have the power to order the

28 production of the relevant statement?

Page 6144

1 Your Honours, I start with looking at Rule 54, a much

2 quoted provision in the Rules, but in respect of this matter it

3 is, in fact, quite specific. It provides, your Honours, that at

4 the request of either party (and I am paraphrasing here) the

5 Trial Chamber may issue such orders as may be necessary for the

6 conduct of the trial. It goes on to refer to other matters,

7 including subpoenas. Your Honours, in our submission, this

8 provision, certainly in terms of giving the Chamber power, is

9 very broad and would cover the situation with respect to the

10 question in issue in this motion.

11 In addition to that, your Honours, there is also Rule

12 98 which is additional to Rule 54, in our submission, and it

13 provides that a Trial Chamber may order either party to produce

14 additional evidence, and it may itself summons witnesses and

15 order their attendance. In our submission, the reference to the

16 word "evidence" in Rule 98 is wide enough to include matters

17 which may be prior witness statements and which may be used to

18 impeach the witness. So, it is our submission that there are at

19 least two provisions available to the Chamber when it looks to

20 what power it has to make the order that is requested by the

21 Prosecution in this case.

22 In determining the approach to be taken by the Chamber

23 in resolution of any issue, it is our submission that, as a

24 matter of general principle, the approach that the Chamber

25 should take is one which favours the best fair determination of

26 the matter consonant with the spirit of the Statute and general

27 principles of law.

28 Your Honours, this principle is reflected at least in

Page 6145

1 one place in the Rules. It seems to us that it would not need

2 to be so reflected as it is a general principle and should apply

3 in any event, but one can see it reflected in Rule 89(B) where

4 it says and it provides, "In cases not otherwise provided for in

5 this Section, a Chamber shall apply rules of evidence which will

6 best favour a fair determination of the matter before it and are

7 consonant with the spirit of the Statute and the general

8 principles of law".

9 We would, your Honours, urge you to approach this

10 issue in a similar fashion with respect to this issue.

11 Your Honours, the Rules themselves do not, in our

12 submission, support the proposition that witness statements

13 obtained by an accused or his or her counsel or on their behalf

14 by third parties are for all purposes and at all times protected

15 from production, whether it be on the basis of lawyer-client

16 privilege or otherwise.

17 In our submission, on the contrary, the Rules support

18 the proposition that once it is determined that the evidence

19 will be used at trial, then any restriction that may otherwise

20 apply will be waived.

21 Dealing with the question of pretrial discovery, we

22 see in Rule 67(C) a reference to the Defence being required to

23 make available to the Prosecutor for the Prosecutor's inspection

24 "any books, documents, photographs and tangible objects which

25 are within the custody and control of the Defence and which it

26 intends to use as evidence at the trial".

27 In our submission, the words "intends to use as

28 evidence at the trial" is the factor for consideration here. If

Page 6146

1 there is to be a principle of legal professional privilege

2 applicable as such, then that may well apply up until the time

3 when a decision is made to use the material at trial.

4 It may be said, well, of course, this provision is not

5 triggered unless a similar request is made by the Defence under

6 Rule 66(B) of the Rules, and that is a Rule which provides a

7 general inspection by the Defence of material in possession of

8 the Prosecution. In our submission, your Honours, Rule 66(B)

9 trigger, if I can call it that, has nothing to do with the issue

10 of legal professional privilege at all. It merely goes to the

11 question, if such a request for an inspection is made by the

12 Defence upon the Prosecution, then an equal right of inspection

13 is available to the Prosecution of Defence material.

14 So the point I wish to make by this is that if there

15 was a right of inspection by the Prosecution, the limitation

16 upon the Prosecutor's right of inspection is the limitation

17 imposed by the reference to the intention to use it at trial.

18 So once that intention is made, it is our submission that any

19 privileges that might otherwise attach are not contemplated to

20 obstruct the application of this provision to the right of the

21 Prosecutor to inspect.

22 It may be that the Defence could still raise some

23 objection based on privilege and that matter could be litigated

24 as such, but it is not contemplated that that will happen

25 because, in our submission, there is an assumption that once you

26 either determine that you are going to use the matter at trial

27 or, alternatively, you elect to call the witness and, therefore,

28 present the evidence at the trial, there is, in effect, a waiver

Page 6147

1 of any privileges that might otherwise have attached.

2 Your Honours, Rule 70(A) is a provision in the Rules

3 which deals with what is commonly known as work-product. It

4 provides that, "Notwithstanding the provisions of Rules 66 and

5 67", so at the outset it does make itself exceptional to 66 and

6 67, in other words, 66 and 67 do not apply to "reports,

7 memoranda, or other internal documents prepared by a party, its

8 assistants or representatives in connection with the

9 investigation or preparation of the case, are not subject to

10 disclosure".

11 In our submission, your Honours, this provision goes

12 to what is referred to as "internal documents", so where it

13 says, "reports, memoranda, or other internal documents", it is

14 all reports and memoranda which are internal to the party. That

15 is why I say that there may be a privilege that operates up

16 until the time that you elect to either call the witness or

17 you make a decision that we are going to rely on this material

18 for the purposes of trial. It then ceases to be internal. The

19 word "internal", in my submission, relates to the situation

20 prior to the decision is made or prior to the calling of the

21 evidence.

22 THE PRESIDING JUDGE: But, I gather, Mr. Niemann -- excuse me, if

23 I may ask you just one question -- according to your position,

24 Rule 70(A) would not include a privilege on the part of the

25 Defence to withhold witness statements once the witness

26 testifies?

27 MR. NIEMANN: Yes.

28 THE PRESIDING JUDGE: Does it include or does it protect the right,

Page 6148

1 that is 70(A), to withhold witness statements at the discovery

2 stage, pretrial?

3 MR. NIEMANN: No, it does not if a determination is made at that

4 stage that the witness statement or the evidence will be used at

5 trial because, in my submission, that is the effect of Rule

6 67(C).

7 THE PRESIDING JUDGE: 67(C) is the reciprocal discovery provision.

8 In other words, if the Defence asks for material under 66(B),

9 then that triggers 67(C) which would require it to provide

10 reciprocal discovery. But you are saying that Rule 70(A) which

11 talks about the protection of internal memoranda etc., does not

12 act as a privilege against disclosure of statements by either

13 party, because Rule 70(A) says, "Notwithstanding the provisions

14 of Rule 66" which governs the Prosecution's right to provide

15 discovery ----

16 MR. NIEMANN: Yes.

17 THE PRESIDING JUDGE: --- or obligation to provide discovery to the

18 Defence. So it says, "Notwithstanding Rule 66 and

19 notwithstanding Rule 67", and 67(C) is the obligation on the

20 part of the Defence to provide reciprocal discovery, it then

21 goes on to say that notwithstanding the obligations under these

22 Rules, you are not required to provide internal memoranda, etc."

23 MR. NIEMANN: That is right.

24 THE PRESIDING JUDGE: You are saying then that 70(A) excludes

25 statements?

26 MR. NIEMANN: Yes, in this very limited circumstance. It would at

27 least in certain ----

28 THE PRESIDING JUDGE: Because it would violate 66(A) because in

Page 6149

1 66(A) the Prosecutor has to give statements, and then in 70(A)

2 it says, notwithstanding 66 and 67, you do not have to give

3 internal memoranda. So, if it relates to statements, what does

4 70(A) do to 66(A)? It knocks it right out?

5 MR. NIEMANN: Yes. It may be that the wording of 66(A) is broader,

6 but 66(A) deals with material that the Prosecutor relied upon in

7 order to found the indictment. There is an assumption on that

8 basis. I am trying ----

9 THE PRESIDING JUDGE: It includes the obligation to provide

10 statements?

11 MR. NIEMANN: Oh, yes.

12 THE PRESIDING JUDGE: And you cannot rely on Rule 70(A) by saying

13 that it is privileged?

14 MR. NIEMANN: We can in circumstances where it is not intended to use

15 the material as evidence in the proceedings. It is the

16 intention to use it as evidence, in our submission ----

17 THE PRESIDING JUDGE: Then it is no longer protected from pretrial

18 discovery?

19 MR. NIEMANN: Yes. It may be, your Honours, that Rule 70(A) could be

20 interpreted wider than the way I have by reference to memoranda

21 or other internal documents does not include statements itself.

22 I mean, that is another interpretation. I was specifically

23 dealing with it in terms of, if there is a privilege that

24 attaches to statements by the Defence, that those documents lose

25 that privilege in the event of an intention to call the witness

26 to give evidence or, alternatively, to decide to use that

27 evidence in the proceedings. It may be, your Honours, that one

28 could interpret Rule 70 as being much narrower and excluding

Page 6150

1 statements as such.

2 THE PRESIDING JUDGE: You recognise then, though, that the Defence

3 has no obligation to provide witness statements to the

4 Prosecution pretrial, unless the reciprocal discovery provisions

5 in 67(C) become applicable, is that not so?

6 MR. NIEMANN: It may be in terms of rights, the Prosecution has no

7 rights, unless it triggers the Rule 66(C). That does not

8 prevent the Prosecution from submitting that statements of

9 witnesses that are intended to be used during the course of the

10 proceedings by the Defence should, for the efficient conduct of

11 the proceedings and the Chamber, be made available. That is

12 another matter.

13 The right as such would seem to be triggered by an

14 application by the Defence under Rule 66(B) and that would then

15 flow to Rule 67(C). That is why I say that under Rule 67(C)

16 statements are available. If there is any limitation or any

17 ability by the Defence to prevent the Prosecution from having

18 those statements, it would be based on an argument that they are

19 internal and it is not intended to use them for the purposes of

20 evidence in the proceedings.

21 There is a variation in jurisdictions on this matter,

22 but there seems to be very solid law in some jurisdictions which

23 say the Defence should be free to go and obtain statements from

24 a wide range of people, and then at a subsequent stage elect

25 which of those statements or which of those witnesses they

26 intend to call as part of their Defence. It only becomes

27 available, in our submission, for inspection once that election

28 is made, unless of course there is some other overriding

Page 6151

1 principle, such as malafides or something which I am not

2 addressing here. I am just talking about the decision of the

3 attorney for the accused going out and exploring all the

4 possibilities in order for him or her to determine what sort of

5 defence to provide.

6 THE PRESIDING JUDGE: So the obligation then on the part of the

7 Defence to provide witness statements of its witnesses, pretrial

8 then, is founded in Rule 67(C) ----


10 THE PRESIDING JUDGE: --- which would require then that reciprocal

11 discovery provision come into being, that is, that the Defence

12 have asked for discovery under 66(B), and there would be no

13 privilege at that time protecting the Defence from giving

14 statements, if it invoked the reciprocal discovery

15 provision ----

16 MR. NIEMANN: Yes.

17 THE PRESIDING JUDGE: --- unless you were to interpret Rule 70(A) as

18 protecting witness statements.

19 MR. NIEMANN: And, in my submission, there is no basis to interpret

20 that because of the word "internal" that appears there.

21 THE PRESIDING JUDGE: But we are beyond that now.

22 MR. NIEMANN: Yes.

23 THE PRESIDING JUDGE: We are beyond pretrial.

24 MR. NIEMANN: Yes. I refer to this merely to illustrate that a

25 general proposition that statements taken by an accused or his

26 counsel of witnesses have this sort of general blanket

27 protection which prevents them from ever being disclosed.

28 Your Honours, in our submission the full ambit of

Page 6152

1 legal provisional privilege, or lawyer-client privilege, is

2 contained in both Rule 70(A) and Rule 97 of the Rules. Rule 97

3 specifically deals with lawyer-client privilege. It provides:

4 "All communications between lawyer and client", and only lawyer

5 and client, "shall be regarded as privileged, and consequently

6 not subject to disclosure at trial, unless the client consents

7 to such disclosure; or", interestingly, "the client has

8 voluntarily disclosed the content of the communication to a

9 third party, and that party then gives evidence of that

10 disclosure".

11 I am not calling that in aid to say that it

12 specifically applies here, but the principle applies here. The

13 principle is that if you have a right to privilege, then that

14 right can be waived and one of the ways in which it is waived

15 can be the person giving evidence. In my submission, that is

16 what happens when a Defence witness comes before the Chamber and

17 gives evidence, then if any privilege did attach up until that

18 time, the moment they give evidence in the witness box, then any

19 privilege that may have attached to a statement that that

20 witness gave in the preparatory stage of the Defence case is

21 waived.

22 It is our submission, your Honours, that when it comes

23 to determining what is the ambit of lawyer-client privilege,

24 legal professional privilege, one should look to these specific

25 Rules of the Rules of Procedure and Evidence of the Tribunal in

26 order to make a determination of what applies.

27 There is reference, your Honours, to the Defence to

28 the right to silence. I will expand that more later in my

Page 6153

1 submissions, but it is our submission that the right to silence

2 is exclusive to the accused and it does not apply to

3 circumstances where a witness is a third party testifying before

4 the Chamber.

5 Your Honours, under international law and, in

6 particular, in reference to the UN Convention on Civil and

7 Political Rights, the principle of a fair trial is the dominant

8 principle. It is, and I am quoting, referring here, your

9 Honours, to the CCPR, the Civil and Political Rights Commentary

10 on that Covenant which we will make available to your Honours.

11 I do not have a copy of it just at the moment -- yes, it has

12 been made available to your Honours. I am sorry. The reference

13 I am referring to, your Honours, is at page 246 of the

14 Commentary which your Honours have.

15 JUDGE STEPHEN: Is this the work by Harris O'Boyle and Warbrick?

16 MR. NIEMANN: No, your Honour. It is an N.P. Engel, Publisher, Kehl,

17 Strasbourg. It is a document that should look like that. It

18 was just provided to your Honours.

19 JUDGE STEPHEN: Thank you. What page?

20 MR. NIEMANN: Page 246, your Honour, paragraph 19. Your Honours,

21 paragraph 19 refers to Article 14(1). Your Honours may recall

22 that Article 14(1) is in terms similar to the provisions in our

23 Statute.


25 MR. NIEMANN: 21, yes, your Honour.


27 MR. NIEMANN: It contains similar guarantees. It is not word for

28 word the same, but it is in general similar. In paragraph 19

Page 6154

1 there the learned author says: "This principle is at the centre

2 of the civil and criminal procedural guarantee and, with respect

3 to criminal jurisdiction, is specified by a number of concrete

4 rights in Articles 14 and 15. The right to a fair trial is,

5 however, broader than the sum of these individual rights."

6 Then it goes on in paragraph 20: "The most important

7 criterion of a fair trial is the principle of 'equality of arms'

8 between the plaintiff and respondent or the prosecutor and

9 defendant".

10 Further on down in the same paragraph, five lines

11 down, the next sentence: "In addition, procedural rights, such

12 as inspection of records or submission of evidence, must be

13 dealt with in a manner equal for both parties".

14 Your Honours, in our submission, when dealing with

15 this question as a general principle, there is absolutely no

16 doubt that if the Prosecution called a witness and had a

17 statement that that witness had given to the Prosecution at an

18 earlier stage and the Prosecution had not disclosed it -- it has

19 an obligation to disclose it, but I am premising this on the

20 basis that it had not disclosed it -- your Honours would feel,

21 I am sure, constrained to order the Prosecution to make that

22 available to the Defence to permit cross-examination.

23 In our submission, if that were the approach to be

24 taken with the Prosecution witness, then in dealing with the

25 principles of international law and the equality of arms, and

26 bearing in mind that the reference here to equality of arms is

27 the equality between the Prosecutor and the defendant, then what

28 applies to the Prosecution with respect to inspection and access

Page 6155

1 to information, when it comes to a general principle, should

2 apply equally to the Prosecution as it applies to the Defence.

3 THE PRESIDING JUDGE: But now these cases come from civil law systems

4 and there is reference to a proceeding under Federal Bankruptcy

5 Law. I think that the Defence has given us two cases or

6 reference to cases that deal with that. In civil law system, of

7 course, we would not be having this discussion because the

8 investigating Judge or Magistrate -- I should ask Mr. Marro to

9 help me out with the terminology -- but in any case that person

10 would investigate and that person would gather all of the

11 statements of witnesses for the Defence, witnesses for the

12 Prosecution, the Prosecution gets a packet with all of the

13 witnesses statements and other material and the Defence does

14 too. So, clearly, there should be this equality of arms under

15 the civil law system. Each side would have statements of

16 witnesses of the other side.

17 Our Rules try to incorporate both civil and common law

18 notions, but at least, as they relate to pretrial discovery, it

19 appears that they are more adversarial in nature and more akin

20 to common law, and that until you get to the reciprocal

21 obligation under 67(C) the Defence would not have that

22 obligation to produce.

23 So what I am saying is, yes, that principle does apply

24 and in civil law systems everything would be on the table. But

25 that is not where we are. So, how does that apply in our Rules,

26 since we are not bound by national systems, how does that

27 apply? How does that fit in our Rules?

28 MR. NIEMANN: Your Honours, the Covenant reference that I am

Page 6156

1 referring to is the United Nations Covenant so it is not limited

2 to the European situation alone, although the foundation for it

3 may be reference to civil law cases. But we would argue that

4 the provision at civil law does not assist much in the

5 determination of this question because of the very matter that

6 your Honours have referred to. But, in terms of dealing with

7 the question of these principles under international law, the

8 principle of equality of arms is the most important criteria to

9 be applied. In our submission, that makes no difference,

10 whether it be a procedure under the Rules of this Tribunal or

11 under civil law or generally because this is the approach that

12 we would urge your Honours to take, having regard to the fact

13 that this is an international jurisdiction.

14 Whilst the specific Rules of the Tribunal may reflect

15 an adversarial system, and in respect of those Rules, of course,

16 all the parties are bound by the letter of those provisions, but

17 we are dealing here, in our submission, with something that is

18 not expressly stipulated. When it comes to a resolution of an

19 issue which is not expressly stipulated, we would urge your

20 Honours to have regard to the international law applicable in

21 this area and the principle of international law which is said

22 by the learned author of this commentary to be the dominant

23 principle as that of equality of arms.

24 So the point I was making was in the absence of any

25 specific Rules, which there are no specific rules dealing with

26 the very question that now confronts your Honours, we would

27 argue that the approach to be adopted is the approach that would

28 be applied in international law.

Page 6157

1 Your Honours, going on in the little handout that has

2 been given to your Honours, there is a reference in paragraph 52

3 in the middle of the paragraph when dealing with the calling and

4 examining of witnesses in a similar vein. There is a reference

5 there about 10 lines from the top: "The final version, adopted

6 in 1952 on the basis of a British initiative by a vote" -- it

7 refers to how it came into position -- "corresponds to the

8 language of Article 6(3)", and then the important part that

9 I refer your Honours to is this, it says: "As a result, the

10 right of the accused to obtain the attendance and examination of

11 witnesses on his behalf is subject to the restriction that this

12 be 'under the same conditions as witnesses against him'.

13 Criminal courts are thus provided with relatively broad

14 discretion, but in summoning witnesses, they must not violate

15 the principles of fairness and 'equality of arms'." Again it

16 brings, if your Honours please, to this question of what is good

17 for one party is good for another.

18 Again, going over the page in the last sentence in

19 paragraph 53 there is a reference there: "Of principal

20 importance here is that the parties are treated equally with

21 respect to the introduction of evidence by way of interrogation

22 of witnesses".

23 I make reference to these matters to reinforce the

24 submission in our submission, that the approach that we would

25 urge your Honours to take is what would you do to the

26 Prosecution in the event of this issue arising? If you would

27 say, "Well, the Prosecutor must produce the prior statement to

28 permit cross-examination", then, in our submission, that is the

Page 6158

1 approach that you should take with the Defence.

2 I touched a moment ago, your Honours, on the question

3 of self-incrimination because I believe it may also be an issue

4 which is expanded upon by the Defence in their submissions.

5 While I have this handout before your Honours, I will refer you

6 to it. It is dealt with specifically on page 264, the final

7 page there. In paragraph 59 the learned author states: "The

8 prohibition of self-incrimination has its roots in English

9 common law and today generally belongs to the essence of a fair

10 trial, such that it must also be viewed as being covered by

11 Article 6 of the European Convention. It relates only to the

12 accused. Witnesses, on the other hand, may not refuse to

13 testify". I immediately note that there is a provision

14 specifically dealing with witnesses in our Rules. "The term 'to

15 be compelled' refers to various forms of direct or indirect

16 physical or psychological pressure, ranging from torture and

17 inhuman treatment prohibited by Articles 7 and 10 to various

18 methods of extortion or duress" and so forth. Your Honours ----

19 THE PRESIDING JUDGE: That is just because to be free from

20 self-incrimination is a personal right that goes to the accused.

21 The right to be free from self-incrimination is a personal right

22 that goes to the accused.

23 MR. NIEMANN: Yes, and the point that we make, your Honours, is that

24 it is limited to the accused. It is not something that can be

25 expanded, as it were, in an umbrella fashion to everything that

26 the Defence do on their side of the courtroom. So, in our

27 submission, if a claim is raised that the accused does not have

28 to produce these documents based on that principle, then we say,

Page 6159

1 well, that does not apply to a witness who is called in the

2 proceedings.

3 Your Honours, the doctrine of legal, professional

4 privilege has many features in common in the various

5 jurisdictions and the various common law jurisdictions. There

6 are some variations between the common law jurisdictions -- I am

7 dealing specifically with them at the moment -- but, by and

8 large, these variations are more cosmetic than substantive. For

9 example, your Honours, in the United States there is a division

10 between the work-product doctrine, lawyers' work-product

11 doctrine, and the lawyer and client privilege. They seem to

12 have been separated. This, in other jurisdictions, has tended

13 to be wrapped up in the one doctrine. So, although the

14 principles that apply are, essentially, the same, in the United

15 States they have been divided, whereas in other jurisdictions,

16 such as in the United Kingdom and in Australia, for example,

17 they are rolled up into one principle.

18 THE PRESIDING JUDGE: That is not the way I read Australian

19 Evidence -- it is entitled "Adversary restrictions upon access

20 to information". On 209 it says -- this is from Australia

21 -- "It appears, therefore, that at common law the notion of

22 legal professional-privilege embraces two privileges, a

23 communications privilege, and a litigation privilege. It is

24 important that these two privileges be kept distinct, for they

25 each proceed from quite distinct and separate rationales, and

26 I would suggest that much of the confusion that currently exists

27 in this area is the consequence of not recognising that legal

28 professional privilege embraces not one privilege but two. The

Page 6160

1 difficulty in keeping the privileges distinct is compounded by

2 the fact that they overlap where communications are made for the

3 purpose of advice about litigation."

4 Then there are several pages of discussion of the

5 lawyer-client communications. That is on page 209. Then you get

6 to page 216 where the author on Australian Evidence begins to

7 discuss the second privilege which he calls "Material collected

8 for litigation". He says: "This separate privilege is

9 recognised in a number of recent Australian decisions. It

10 exists to encourage the pursuit of adversary litigation, and is

11 consequently unique to common law jurisdictions." Then on the

12 next page, 217, he says: "In consequence, the litigation

13 privilege is quite narrow. It extends to communications brought

14 into existence at the instigation of client or lawyer to pursue

15 litigation (for example, statements taken from witnesses), and

16 to any other work-product of the lawyer".

17 So it appears to me and also in Cross & Tapper, at

18 least the 8th edition that we received from the Defence -- I do

19 not have it readily to hand -- it also says that there are two

20 privileges; the first one, a lawyer-client and then the

21 litigation privilege. So statements, at least if you rely on

22 these three decisions, would fall in the second privilege, that

23 is, materials collected for litigation, as opposed to the first

24 privilege which is the lawyer-client privilege which is

25 expressed in our Rule, Rule 97. It is right in there.

26 MR. NIEMANN: Your Honour is quite right. There is certainly the

27 legal professional privilege, as it is understood in Australia

28 and England. It encompasses both privileges. The point I was

Page 6161

1 really making is that often it is sort of wrapped up and dealt

2 with as one doctrine, but certainly there is no question that

3 both privileges operate, but it is a question of how you treat

4 it.

5 The only point I was making was that my interpretation

6 of the law of the United States was that it seemed to separate

7 them much more succinctly than the law of England or Australia.

8 That is the only point I am making, but I do not for one minute

9 quarrel with what your Honour has said. There is no question

10 that there are two issues and can be easily treated as two

11 separate privileges. In fact, your Honours, in a case that

12 I think has been provided to your Honours of Baker v. Campbell,

13 which is a decision of the High Court of Australia, 153

14 Commonwealth Law Reports, page 52 -- regrettably, I only have a

15 copy extracted from the Lexis -- at page 88 of that -- it has

16 not been provided?

17 JUDGE STEPHEN: No. I would be very interested to see what

18 Mr. Justice Murphy says.

19 THE PRESIDING JUDGE: We do have the decision, though, that Judge

20 Stephen ----

21 MR. NIEMANN: Of Grant v. Downs?

22 THE PRESIDING JUDGE: --- wrote about.

23 MR. NIEMANN: I have one copy here but, if your Honour pleases, while

24 I go through it I will have it put on the overhead projector

25 which might assist in your Honours looking at it. Then I will

26 undertake to make a copy available to your Honours.

27 THE PRESIDING JUDGE: Could you arrange for copies to be made?

28 Perhaps, Miss Sutherland, could you arrange for copies to be

Page 6162

1 made or passed to one of our law clerks, and copies could be

2 made right now and then returned to us. Did you get a copy?


4 THE PRESIDING JUDGE: One for the Defence as well. Then we will all

5 read it while we listen. Excuse me. Go ahead, Mr. Niemann.

6 MR. NIEMANN: I might come back to Baker v. Campbell while it is

7 being copied. I will deal with what is said by the Court in

8 Grant v. Downs, which is the other Australian case that

9 I referred to, your Honours.

10 THE PRESIDING JUDGE: You had better be careful because Judge

11 Stephen, that is his case. That is the problem when you refer

12 to cases that we have written -- not me but Judge Stephen. Go

13 ahead.

14 MR. NIEMANN: The situation, your Honours, with respect to the two

15 principles that I would refer to in Grant v. Downs is, firstly,

16 the reference to what are the relevant principles in examining

17 legal professional privilege. On page 682 of the decision, at

18 the top of the page, it says in the first paragraph: "What then

19 are the relevant principles of law governing the privilege which

20 attaches to communications and materials submitted by a client

21 to his solicitor for the purpose of advice or for the purpose of

22 use in existing or anticipated litigation, in particular when

23 the materials have been called into existence to serve more than

24 one purpose", which is not the position here.

25 It then goes on. I am making reference to this to

26 draw attention to the position of law in Australia which is also

27 developed in the Baker and Campbell case. There is a reference

28 then to Seabrook v. British Transport, their Honours Justices

Page 6163

1 Stephen, Mason and Murphy go on to say "contained a

2 comprehensive review of the decided cases, illustrating as it

3 does by reference to earlier judgments, that the essential

4 elements of this head of privilege (which embraces

5 communications and investigations made by the client as well as

6 communications and work undertaken by the legal adviser" -- just

7 stopping there for a moment, your Honours, you can see from that

8 the approach in Australia (and, I would submit, the same in

9 England) is often to roll the two together and deal with it that

10 way -- "whether for use in litigation or for advice have been

11 differently expressed from time to time. The difference is not

12 one of expression only because, as his Lordship observed, the

13 course of decision tended to keep the privilege within narrow

14 confines until 1913". There is a reference to a decision of the

15 Court of Appeal. "Thereafter, certainly until more recently,

16 the decisions gave greater emphasis to the claim for

17 privilege". Then the next sentence is of use: "It has been

18 accepted that documents brought into existence after an accident

19 pursuant to a standing instruction previously given may be

20 privileged".

21 So this is, in my submission, the question of bringing

22 into existence documents which may include statements, certainly

23 as it seems to be treated by the law in Australia, could and

24 probably do have privilege attached to them right up until a

25 point when that privilege is waived. So if one is approaching

26 it from that point ----

27 JUDGE STEPHEN: But you are not suggesting that Grant v. Downs

28 assists you at all? The whole point of Grant v. Downs was

Page 6164

1 whether the document was brought into existence for the purpose

2 of litigation or whether it was part of a routine accident

3 investigation procedure.

4 MR. NIEMANN: Yes. I acknowledge, your Honour, that the facts of

5 that case are not helpful to the situation here.


7 THE PRESIDING JUDGE: This is not a witness statement case. This was

8 a report. It was prepared by an institution, mental

9 institution, I believe, that was submitted to their lawyers.

10 The issue was whether or not that report was brought into

11 existence for the sole purpose of litigation. Judge Stephen

12 says that is what it has to be, the sole purpose, and finds that

13 there are other purposes. So this would be, it appears,

14 protected by the first privilege, the privilege that exists

15 between lawyer and client, because that was their client. That

16 report went to the lawyer.

17 So the question then is even whether it is privileged,

18 but if they find it is privileged it is because it fits in the

19 first category. Communications between lawyers and clients are

20 pretty sacrosanct.

21 MR. NIEMANN: Yes, and they are dealt with specifically under our

22 Rules under a different heading.

23 THE PRESIDING JUDGE: They are under 97. Judge Stephen narrows it

24 from the British rule saying -- I do not know, Judge Stephen is

25 better to tell me what he intended -- he narrows it, and then he

26 says, though, in explaining why, "... The existence of the

27 privilege reflects to the extent to which it is accorded the

28 paramountcy of this public interest over a mere general public

Page 6165

1 interest, which requires that in the interest of a fair trial

2 litigation should be conducted on the footing that all relevant

3 documentary evidence is available". He says that we are

4 restricted in Australia to the sole purpose of balancing that,

5 that public interest. So I too do not see how it really relates

6 to this issue, but it is another judgment for us to read which

7 we did.

8 MR. NIEMANN: The specific facts of the case do not assist, but

9 I would argue it assists in reaching understanding if one is to

10 canvass the law of the various jurisdictions. It assists in

11 some understanding of that law.

12 JUDGE STEPHEN: But, I am sorry, it assists only in showing that

13 legal professional privilege does apply to witness statements

14 which are produced solely for the purpose of litigation.

15 MR. NIEMANN: Yes.

16 JUDGE STEPHEN: Yes, so that it goes directly against you to that

17 extent, if you regard it as applicable at all.

18 MR. NIEMANN: It does but ----

19 JUDGE STEPHEN: Unless there is waiver.

20 MR. NIEMANN: --- unless there is waiver.

21 JUDGE STEPHEN: And you say there is waiver when the witness gives

22 evidence?

23 MR. NIEMANN: Yes. In our submission, that is the moment or, under

24 our Rules, it in fact can occur earlier, that is, once a

25 decision is made to use this evidence in the proceedings, then

26 the waiver ----

27 JUDGE STEPHEN: It is certainly authority to that effect that I would

28 be very interested to see.

Page 6166

1 THE PRESIDING JUDGE: Was it a witness statement or does it sound

2 like something that is in 70(A) of our Rules, that is, a report,

3 memoranda, or other internal documents? It may not be critical

4 to your position. I just wanted to understand your position.

5 MR. NIEMANN: Your Honours, the ----

6 THE PRESIDING JUDGE: Because, as I understand it, it was the client

7 who prepared this report.

8 MR. NIEMANN: In Grant v. Downs?

9 THE PRESIDING JUDGE: Is that right? Was it a client, Judge

10 Stephens?

11 JUDGE STEPHEN: My recollection of it is confined entirely to reading

12 this almost illegible copy that I have. I certainly do not

13 recall it.

14 THE PRESIDING JUDGE: I thought it was a mental institution; it was a

15 patient who escaped and was discovered, incurred bronchial

16 pneumonia or something and the mental institution, a client,

17 prepares a report and gives it to his lawyer.


19 MR. NIEMANN: I do not put it any higher, your Honours, than simply

20 it may assist the Chamber to have an understanding of how the

21 law has been interpreted in that jurisdiction. I am in the

22 process of going through the various jurisdictions.

23 Your Honours, one of the matters that I would submit

24 is appropriate for consideration in this issue is this process

25 of calling for documents and whether, as it is understood in the

26 law of England, the United Kingdom and Australia, whether there

27 is provision or a practice which permits the calling for

28 documents in the course of the trial. In our submission, there

Page 6167

1 are numerous references that one can go to in relation to this

2 question.

3 Again, in the extracts of the Australian Evidence book

4 by Ligertwood in paragraph 5.35 at page 227, which I again trust

5 your Honours have been given that page?

6 THE PRESIDING JUDGE: I suppose, I was going to ask you, you referred

7 to the commentaries, Blackstone, Cross on Evidence, I do not

8 know whether you were referring to the 7th or 8th edition, but

9 we now have the 8th edition, thanks to the Defence, but in any

10 case you referred to Blackstone, Cross and is it Ligertwood?

11 MR. NIEMANN: Ligertwood.

12 THE PRESIDING JUDGE: But you also give us the Evidence Act from the

13 criminal law of South Australia, is it section 29?

14 MR. NIEMANN: Section 29.

15 THE PRESIDING JUDGE: Which says that, "A witness may be

16 cross-examined as to previous statements made by him in writing,

17 or reduced into writing, relative to the subject matter of the

18 cause, without the writing being shown to him; but if it is

19 intended to contradict the witness by the writing, his attention

20 must, before such contradictory proof can be given, be called to

21 those parts of the writing which are to be used for the purpose

22 of so contradicting him: provided always, that the judge, at

23 any time during the trial, may require the production of the

24 writing for his inspection; and may thereupon make such use of

25 it, for the purposes of the trial, as he thinks fit". That is

26 from South Australia.

27 Then you give us a case from Canada, Peruta, is it,

28 which seems to have the same rule, section 10, if I am correct,

Page 6168

1 of their rules, of the Canada Evidence Act, that says: "On any

2 trial a witness may be cross-examined as to previous statements

3 made by him in writing, or reduced to writing, relative to the

4 subject matter of the case, without the writing being shown to

5 him, but, if it is intended to contradict the witness by the

6 writing, his attention must, before the contradictory proof can

7 be given, be called to those parts of the writing that are to be

8 used for the purpose of so contradicting him, and the judge, at

9 any time during the trial, may require the production of the

10 writing for his inspection, and thereupon make such use of it

11 for the purposes of the trial as he thinks fit".

12 Those rules of evidence seem very similar to me, if

13 not identical. But we do not have any interpretation of those

14 rules, at least I did not receive any, other than the Peruta

15 case, which I do not see in your outline. Are you going to tell

16 us how this Rule 10 operates?

17 MR. NIEMANN: Yes, your Honour. There is -----

18 JUDGE STEPHEN: Perhaps before you do that, I might read the next

19 paragraph of Peruta which does comment on the section? It

20 says: "The section gives a right to cross-examine as to a

21 previous statement in writing; it does not give him the right to

22 obtain a written statement in possession of the adverse party".

23 The South Australian section comes, as does the Canadian, from

24 English earlier origins.

25 MR. NIEMANN: Yes, and the right, in our submission, relates to the

26 question of a right as opposed to the ability to request the

27 Court to so provide it, as opposed to a right of the party to

28 have it. In our submission, it regularly happens that a party

Page 6169

1 in the proceedings in dealing with this question calls for the

2 document. The document may be objected to on the basis of a

3 claim for privilege. Because there is an ability of the

4 opposing party to claim privilege, that ability precludes it

5 from being a right of the other party, because it then falls to

6 be determined by the Court as to whether or not the claim is

7 made out, or whether or not the document is to be made

8 available.

9 In our submission, when dealing with that question,

10 the issue is whether the Chamber or whether in these cases in

11 South Australia or in England, which has a similar provision,

12 section 5 of the English Act, does the Court have the ability to

13 order the production of the document, and clearly it does. It

14 does so in order to determine the matter between the parties and

15 it may call for the document and put it to whatever use it

16 thinks is appropriate for the proceedings. Although there was

17 quoted a Canadian case which appeared to have a contra view to

18 it, it is our submission that at no stage does the Canadian case

19 prevent the Court from ordering the production of the document.

20 The procedure, in our submission, is that one calls

21 for the document and the Defence, or the other party, may make

22 it available. Again the calling for it does not of itself

23 create a right to have it, but it can be made available. In

24 some jurisdictions, there are consequences that flow from the

25 calling for the document and it being made available, but they

26 are not matters to which, in our submission, it is necessary for

27 your Honours to be concerned with.

28 At no stage have I asserted that in interpreting

Page 6170

1 Section 29 of the South Australian Act or Section 5 of the

2 English Act or, indeed, the Canadian provisions, do these

3 provisions create a right in the other party.

4 THE PRESIDING JUDGE: It is not like the rule in the United

5 States ---


7 THE PRESIDING JUDGE: --- 26.2 of the Federal Rules of Criminal

8 Procedure and the Military Courts-Martial Rule which would

9 allow for the production of the witness statements, even of the

10 Defence, after they have testified. But Mr. Justice Proulx --

11 I may be mispronouncing the name, P-R-O-U-L-X -- says in his

12 concurring opinion on page 19: "Finally, the trial judge, in

13 the exercise of his discretion and in the superior interest of

14 justice, can allow access to the statement, and even order its

15 production which can then work in favour of the prosecution".

16 Then he goes on on page 20 to say: "However, I cannot

17 conceive that the power to compel the Crown to produce the

18 statement of a witness is a narrow and isolated power.

19 I conceive it to be but one facet of a wider power to order

20 production that flows from the ability of the Court to control

21 its process so as to manifestly ensure fundamental fairness and

22 see that the adversarial process is consistent with the

23 interests of justice. Such a power must include the power to

24 order production of the statement of an accused."

25 He says "accused" but, as I recall, the issue was

26 really whether the Crown could obtain all of the witness

27 statements of the Defence witnesses at the commencement of the

28 Defence's case in chief. The trial Judge said, "Yes, you may

Page 6171

1 have them". It was reversed, of course, saying, "No, you do not

2 get them when the Defence begins to put on its evidence",

3 because they are privileged and there is no reciprocal

4 discovery. But, once the witness testifies, as I read it at

5 least, you get into this question. But there certainly is no

6 absolute right for you to get all of these statements. The

7 Judge needs to look at them first, I gather, to see whether

8 there is any inconsistency, excise anything that is a

9 work-product and then, perhaps, give them to you. I do not

10 know.

11 Mr. Niemann, I have interrupted you.

12 MR. NIEMANN: No, your Honour.

13 THE PRESIDING JUDGE: You have discussed Blackstone -- this outline

14 is helpful -- Cross and Ligertwood.

15 JUDGE STEPHEN: I wonder if I can ask you for a page reference to

16 Cross because the edition of Cross that I have does not go as

17 far as 1000.

18 MR. NIEMANN: I am sorry, your Honour. We have a very old edition

19 here. I have not been able to get my hands on a more recent

20 one.

21 JUDGE STEPHEN: We have. It is all right.

22 THE PRESIDING JUDGE: We have 8 but it belongs to the Defence. Maybe

23 at the recess we can look at what we need to, I do not know.

24 JUDGE VOHRAH: Mr. Niemann, so far you have quoted authorities from

25 Canada, Australia and the United States. In the Indian

26 subcontinent there are specific provisions in the Evidence Act

27 relating to privilege. Have you researched the authorities

28 there?

Page 6172

1 MR. NIEMANN: In relation to privilege, no, your Honour, I confess

2 I have not touched on that. What I have obtained is some

3 material on the criminal procedure in Malaysia in relation to

4 impeachment of witnesses. Indeed, the provision in Malaysia,

5 Section 145, as I understand it, provides that a witness may be

6 cross-examined as to previous statements made by him in writing,

7 or reduced in writing, and relevant to matters in question in

8 the suit or the proceeding in which he is cross-examined without

9 the writing being shown to him or being proved. But if it is

10 intended to contradict him by writing, his attention must,

11 before the writing can be proved, be called to those parts of it

12 which are to be used for the purpose of contradicting him. So,

13 so far it follows almost word for word the English and

14 Australian provisions to which I referred.

15 JUDGE VOHRAH: Except -- may I interrupt you -- that I think that

16 particular provision has to be read in the light of specific

17 provisions relating to privilege, sections 126 to 130, which

18 also appear in the Indian Evidence Act. I think there are lots

19 of authorities on that. Unfortunately, I have not got any

20 textbook on it. Perhaps we could get access to them.

21 MR. NIEMANN: Perhaps I might come back to your Honour on that if

22 I can get access to this material? Regrettably, our library

23 facilities here are somewhat limited when it comes to doing

24 broad researches.

25 JUDGE STEPHEN: But would you not agree that the passage you have

26 just read has nothing at all to do with compelling the

27 production from the other side of prior witness statements? It

28 has everything to do with the fact that if one has in one's

Page 6173

1 possession a contradictory prior statement of a witness for the

2 opposition, one can then use it and there are rules about the

3 extent to which you have to produce it.

4 MR. NIEMANN: Yes, and certainly, your Honour is absolutely right,

5 the point that I make, though, is the proviso, the proviso which

6 I was about to say is not specifically incorporated in the

7 Malaysian law as I see it, but has been interpreted to apply in

8 the Malaysian law by case law. But in the English and

9 Australian provision to which I referred, it does provide

10 precisely what your Honour says, but then goes on to

11 say, "provided that ... " -- I should go to it.

12 THE PRESIDING JUDGE: "... that the judge may order the production of

13 the statement and use it as he sees fit". That is what is in

14 Australia, Canada and England.

15 JUDGE STEPHEN: But that is not ordering the production, compelling

16 the production, from a party who has a prior statement of its

17 witness; that is when the cross-examining party happens to have

18 a prior statement which contradicts the witness's evidence and

19 the Judge can compel the production of it. You are not

20 suggesting that the Judge can just, at his own volition, waive

21 the professional privilege that otherwise applies, are you?

22 MR. NIEMANN: No, I am not suggesting that, but I do not read Rule 29

23 or Rule 5 to be so limited as to prevent the Judge from ordering

24 the other party to produce the document.

25 JUDGE STEPHEN: Really? I see.

26 THE PRESIDING JUDGE: It depends upon how you read the Canada case.

27 You say that once a witness testifies, then to the extent that

28 he has a privilege it is waived.

Page 6174

1 MR. NIEMANN: Yes, and to the extent that there may be privilege

2 attached to it. The privilege works to protect the statement in

3 circumstances where the Defence, in exploration of what course

4 it may take in presenting its defence, may have freedom to

5 explore all options, and then to elect what option it wishes to

6 take in order to present its case at trial.

7 Once it has made that election, then the issue of

8 privilege no longer has work to do because the other issues

9 which could create all sorts of variations in the process at

10 trial are precluded from the Prosecution, at least, from the

11 Prosecutor, seeing it. But once the Defence make that election

12 and say, "Right, we are going down this particular route and we

13 are calling this particular witness", then, in our submission,

14 it is not a question of privilege applying to it.

15 Cross-examination is at large. One can ask questions and the

16 ability to attack the credibility of a witness, which is most

17 often the basis upon which these statements are sought, is a

18 legitimate and proper exercise in the process of

19 cross-examination.

20 I go back to say that it is in the fair determination

21 of the matter before the Court that the exercise of the Court's

22 power to call for production of the documents must be there.

23 The Court can look at it and say, "In the fair determination of

24 it, I will order that it be produced and be made available". It

25 may be that the court says, "No, there is a legitimate claim of

26 privilege here which may arise as a basis of work-product which

27 is to be excised". So that is why it is not a right of the

28 Prosecutor. It is merely an ability to call for it, but the

Page 6175

1 Court has the power, certainly.

2 I would go so far to say, your Honours, that in the

3 fair determination or disposal of the matter it may be necessary

4 to go contrary to the claim of privilege and to produce the

5 document, if the Court so orders. There may be bases upon which

6 the Court could do that.

7 JUDGE STEPHEN: But, as I understand it, you have no basis at all at

8 the moment for suggesting that there is a contradictory prior

9 statement. All you are doing is saying, "Did you make a

10 statement?" Answer: "Yes", and then call for its production.

11 Is that not the veriest fishing expedition?

12 MR. NIEMANN: No. It is based upon material that was made available

13 to the Prosecution which has been tendered in the form of a

14 letter. It is based on the answers to the questions ----

15 JUDGE STEPHEN: I am sorry, I did not follow that.

16 MR. NIEMANN: A letter was tendered to your Honours from the Defence.

17 JUDGE STEPHEN: Saying there was a prior statement, yes, but not

18 saying it was in any way contradictory, of course.


20 JUDGE STEPHEN: Does that mean that with each Defence witness you can

21 in cross-examination, because he has given evidence, require the

22 production of his earlier witness statement?

23 MR. NIEMANN: We can call for the production.

24 JUDGE STEPHEN: And you can ask the Bench --

25 MR. NIEMANN: To order its production.

26 JUDGE STEPHEN: --- to order its production?

27 MR. NIEMANN: Yes.

28 JUDGE STEPHEN: That seems to me to be the veriest fishing

Page 6176

1 expedition.

2 THE PRESIDING JUDGE: We will stand in recess for 15 minutes. When

3 we return, though, we will hear from you to finish up and then

4 we will begin with the Defence's response so that we can finish

5 up by 1 o'clock, hopefully.

6 JUDGE STEPHEN: Have you copies of Baker v. Campbell there now?

7 MR. NIEMANN: I think it has been organised.

8 (The Court adjourned for a short time)

9 (12.00).


11 MR. NIEMANN: Thank you, your Honour. Your Honour, before the break

12 Judge Stephen directed a question to me in relation to whether

13 or not this exercise would amount to a fishing expedition. In

14 our submission, no, because it is specific to what the witness

15 was testifying. The statement is a statement relevant to what

16 the witness has said. It is not fishing to test the credibility

17 of the witness or, indeed, maybe it goes the other way and

18 confirms the testimony of the witness, but that is not fishing.

19 It is directly relevant to the issue for determination. In our

20 submission, if it were to be a statement in relation to

21 something else, then clearly we would not be seeking its

22 production and the Court, presumably, would not order its

23 production.

24 JUDGE STEPHEN: What do you mean "something else"?

25 MR. NIEMANN: I mean, if it was a statement in relation to some other

26 matter.

27 JUDGE STEPHEN: About the weather?

28 MR. NIEMANN: Yes.

Page 6177

1 JUDGE STEPHEN: Of course you would not, that is an irrelevant

2 remark.

3 MR. NIEMANN: No, but the point I am making, your Honour, is that

4 often fishing expeditions concern themselves with

5 irrelevancies. In our submission, this is not relevant. It is

6 relevant because it is a means and mechanism by which the

7 credibility of the witness can be tested.

8 THE PRESIDING JUDGE: Maybe what is suggested as a fishing expedition

9 is that you are enquiring about what the witness testified to on

10 a prior occasion without first establishing some inconsistency.

11 Where we are with respect to Witness W is that a question was

12 asked by Mr. Tieger as to what he -- I realise it was in closed

13 and so I want to be careful -- had said in this statement. Then

14 there was an objection -- I have the transcript -- that that

15 question was privileged. So at the point when Mr. Tieger was

16 getting into what was said in that statement there was an

17 objection. Then we conferred and ruled and you never really got

18 into the contents of that statement. So, you never really made

19 a showing in the present posture that the statement was

20 inconsistent. So, assuming that you have to make that showing,

21 and the failure to make that showing would constitute a fishing

22 expedition, we are where we are because of how we have

23 proceeded.

24 MR. NIEMANN: Just to answer your Honour on that matter, in our

25 submission, either way it is not irrelevant and it is quite

26 impossible, obviously, if the party is not in possession of the

27 statement to make any showing as to what the contents of the

28 documents would reveal. But, in our submission, it is not

Page 6178

1 fishing because in either way it may well be relevant. It may

2 be relevant because it confirms that on a previous occasion the

3 witness said this, or it may be relevant because it shows that

4 there is an inconsistency. So, in our submission, it is not

5 fishing in that sense. Fishing is where there is absolutely no

6 idea whether or not there is anything there at all. You simply

7 cast the line in and hope to find something. That is not the

8 case here.

9 Your Honours, quickly I would wish to take you to a

10 provision that has now been incorporated into the law of New

11 South Wales. In relation to Section 36 of the New South Wales

12 Evidence Act, I have provided a copy of that to your Honours,

13 just the last piece of paper that I handed to your Honours. It

14 deals with the principle in Walker v. Walker which is where that

15 issue of Section 29 of the South Australian Act and section 5 of

16 the English Act come into play. But, in particular, section 36

17 is very interesting because it provides, and it is set out on

18 the second page there, if your Honours could go to that: "The

19 Court may order a person who is present at the hearing of a

20 proceeding; and is compellable to give evidence in the

21 proceeding; to give evidence and to produce documents or things

22 even if a subpoena or other process requiring the person to

23 attend for that purpose has not been duly served on the

24 person".

25 So in my submission, your Honour, here is a much more

26 clearly expressed provision which sets out much more clearly the

27 power of the Court to make such an order and an order in the

28 absence of subpoena.

Page 6179

1 JUDGE STEPHEN: But is not the scope of that section well illustrated

2 by its title? "A person may be examined without subpoena or

3 other process", and all the section does is to say that somebody

4 who is compellable, and that, presumably, excludes a spouse ----

5 MR. NIEMANN: Yes, that presumably ----

6 JUDGE STEPHEN: --- and happens to be present at the hearing, can be

7 ordered to give evidence. But are you suggesting that this

8 deals with privilege and affects the law as to privilege?

9 MR. NIEMANN: No. What I am saying is that it is another provision

10 which deals with the process of the Court having the capacity

11 and power to order production. It specifically provides the

12 production or produce documents.

13 JUDGE STEPHEN: Yes, in the absence of a subpoena.

14 MR. NIEMANN: Yes.

15 JUDGE STEPHEN: But, surely, it is dealing with -- there is no such

16 adjective, I suppose -- subpoena-able documents. It has nothing

17 to do with the whole question of privilege. It is saying the

18 fact that you have not subpoenaed a document does not prevent

19 the Court from ordering its production.

20 MR. NIEMANN: I am not arguing that it has anything to do with

21 privilege, your Honour. There are two issues here, one is the

22 power to order, the other is the question of dealing with

23 privilege. They are two separate issues. The issue that

24 I merely cite in this form is that it is yet another example of

25 a power to order.

26 THE PRESIDING JUDGE: But, to follow Judge Stephen's line, only if it

27 is not privileged. If the statement belongs to the witness, and

28 if, for example, the witness has the statement, perhaps the

Page 6180

1 lawyer interviewed the witness, took a statement in writing,

2 signed and the witness had an attorney with him and the witness

3 says: "I want that statement to keep with me". If that witness

4 has the statement, assuming that he has the right to have that

5 statement because it is his, then that is the kind of thing that

6 you could produce from that witness. You are not following me?

7 MR. NIEMANN: No, your Honour.

8 THE PRESIDING JUDGE: You do not have to, just move along. That is

9 the beauty of law! That is OK. We can move along.

10 MR. NIEMANN: Your Honours, the position in the United States, in my

11 submission, is the most developed position anywhere in any

12 jurisdiction that I have been able to locate. I would certainly

13 urge your Honours to apply the law of the United States because

14 it is the most progressive and apply it having regard to

15 international principles.

16 In my submission, to apply any other principle other

17 than the principle that has now gone through the whole process

18 and reached the point where the law is in the United States

19 would be to apply a law which has not developed that far. In my

20 submission, I could take you to a number of authorities,

21 including a remark by your Honour Justice Stephen in Grant v.

22 Downs which talks about this whole process of fair trial, the

23 process of open proceedings and so forth.

24 It seems to me that the United States has grappled

25 with it and has actually introduced specific rules to deal with

26 it. Certainly, I would be urging your Honours to apply the most

27 progressive and up-to-date provision that there is available in

28 common law jurisdictions.

Page 6181

1 THE PRESIDING JUDGE: I am sitting here as the only United States

2 Judge between two Judges from a common law background. The

3 Defence might argue that it is not progressive, it is going

4 backwards. But, in any case, 89(A) of our rules of evidence,

5 our 10 rules of evidence, say that the Tribunal shall not be

6 bound by national rules of evidence. So whether it is

7 progressive, going forward or retrogressive, going backwards,

8 I do not know whether just because the United States has a rule

9 requiring the turning over of witness statements of the Defence

10 after they have testified, I do not know whether we should adopt

11 it or not because we say right in our Rules we are not to be

12 bound by national rules.

13 MR. NIEMANN: But, consistent with the Rules, your Honour, the

14 general provisions as set out in Rule 89(B) encourage your

15 Honours to apply the rules of evidence which best favour a fair

16 determination of the matter before it and are consonant with the

17 spirit of the Statute and the general principles of law. In my

18 submission, when doing so, it is appropriate to look to perhaps

19 the advanced and progressive provisions that are available,

20 certainly in common law jurisdictions where this issue arises,

21 particularly in addressing issues of privilege.

22 The foundation authority, your Honours, for the

23 amendment to the law of the United States, and the law of the

24 United States was not always as progressive as what it is now,

25 and it has gone through a process of evolution, the sort of

26 evolution that may well happen in all the other common law

27 jurisdictions, did come perhaps to a head in the Supreme Court

28 decision of the United States v. Nobles. I did wish to make

Page 6182

1 some reference to parts of this decision because I think it is

2 very instructive in seeing how the United States came to this

3 position and how, ultimately, this ended up as forming part of

4 the rules themselves.

5 This, your Honours, was a criminal prosecution in the

6 federal jurisdiction. In the case, the Defence counsel sought

7 to impeach the credibility of key Prosecution witnesses.

8 Perhaps before I go any further, I should give the citation for

9 this decision, although I think I have done so in my outline.

10 It is 422, United States, at 225:

11 "When the investigator was called as a witness, the

12 District Court stated that a copy of the investigator's report,

13 inspected and edited by the Court in camera so as to excise

14 references to matters not relevant to such statements, would

15 have to be submitted to the prosecution for inspection at the

16 completion of the investigator's testimony. When Defence

17 counsel said he did not intend to produce the report, the court

18 ruled that the investigator could not testify about his

19 interviews with the witnesses".

20 The principal decision of the Court is delivered by

21 his Honour Mr. Justice Powell. His Honour at page 227 of the

22 opinion crystallizes the question for determination by the Court

23 in the following words. He says: "The question presented here

24 is whether in these circumstances a federal trial court may

25 compel the Defence to reveal the relevant portions of an

26 investigator's report for the prosecution's use in

27 cross-examining him".

28 His Honour then goes on to deal with the facts and

Page 6183

1 circumstances of the case. He deals with the whole issue of the

2 adversarial system and quotes with approval a decision of the

3 Supreme Court of the United States in the United States v.

4 Nixon. This appears, if your Honours please, on the handout

5 judgment at page 21. It is the second to last paragraph on page

6 21 where his Honour cites a direct quote from Nixon and it is

7 instructive, your Honours, because it says: "We have elected to

8 employ an adversary system of justice in which the parties

9 contest all issues before a court of law. The need to develop

10 all relevant facts in the adversary system is both fundamental

11 and comprehensive. The ends of criminal justice would be

12 defeated if judgments were to be founded on a partial or

13 speculative presentation of the facts. The very integrity of

14 the judicial system and public confidence in the system depend

15 on full disclosure of all the facts, within the framework of the

16 rules of evidence. To ensure that justice is done, it is

17 imperative to the function of the courts that compulsory process

18 be available for the production of evidence needed either by the

19 prosecution or by the Defence."

20 In my submission, your Honours, this is a coming

21 together of what is at the very position here. When one looks

22 at the international standards that apply to interpretation, and

23 when one appreciates that the approach to be taken is the

24 equality of arms and, in speaking of the equality of arms, it is

25 the equality between the Prosecution and the Defence

26 respectively, in my submission, his Honour's reference to the

27 United States v. Nixon at this point is most instructive.

28 THE PRESIDING JUDGE: The reference to Nixon is very instructive in

Page 6184

1 terms of having all of the relevant facts, but Nobles itself,

2 though, was based on a finding that there was a waiver of the

3 privilege because the investigator used the report for

4 testimonial purposes. Of course, then once he uses the

5 investigator's report that contains the statements of two

6 witnesses, then there would be this waiver.

7 The concurring opinion, though, in Nobles, perhaps, is

8 more instructive because the concurring opinion by Justice White

9 distinguishes between the work-product doctrine and the

10 lawyer-client privilege, finding that that report itself would

11 not be privileged but protected by pretrial discovery, citing

12 Hickman v. Taylor, particularly a concurring opinion by Justice

13 Jackson who, curiously, was Prosecutor in the Nuremberg trials.

14 It was Justice Jackson's approach in Hickman v. Taylor which

15 Nobles, the concurring opinion bases its approach, that from my

16 perspective is more enlightening. The principle is certainly

17 there involving United States v. Nixon. I guess that was Nixon

18 as in President Nixon, is that so? I do not know. I have not

19 gone to the case.

20 MR. NIEMANN: Your Honour, I confess I am not familiar with it other

21 than the quote that is here.

22 THE PRESIDING JUDGE: But, anyway, the direct holding, though, finds

23 a waiver because of the use of the report by the investigator

24 for testimonial purposes and we do not have that here.

25 MR. NIEMANN: No. Your Honour, moving on to the issue of the right

26 to silence, though, which, as I say, I foreshadow would arise in

27 the Defence presentation: At page 23 Mr. Justice Powell deals

28 with that question there. At the second paragraph he makes

Page 6185

1 reference to the fact: "The Court of Appeals concluded that the

2 Fifth Amendment renders criminal discovery 'basically a one way

3 street'." Then he says: "Like many generalizations in

4 constitutional law, this one is too broad." Then the next

5 paragraph: "The Fifth Amendment privilege against compulsory

6 self-incrimination is an 'intimate and personal one' which

7 protects 'a private inner sanctum of individual feeling and

8 thought and proscribes state intrusion to extract

9 self-condemnation". The point being made, in my submission,

10 your Honours, again reinforces this question of it being

11 individual to the accused in the instances of this case.

12 There is also a further reference, which I will not

13 take your Honours to, at the bottom of the page to that issue as

14 well.

15 There is then on page 25 of the handout -- I will not

16 read it out -- a reference to the work- product doctrine. That

17 is further developed, your Honours, on pages 27. His Honour

18 says in the second paragraph on page 27 when dealing with the

19 work-product doctrine: "At its core, the work-product doctrine

20 shelters the mental processes of the attorney, providing a

21 privileged area within which he can analyse and prepare his

22 client's case. But the doctrine is an intensely practical one,

23 grounded in the realities of litigation in our adversary

24 system. One of those realities is that attorneys often must

25 rely on the assistance of investigators and others".

26 The point I wish to extract from that reference there,

27 your Honours, is this question of the lawyer having the freedom

28 when defending an accused to be able to explore all

Page 6186

1 possibilities, and included among that is the obtaining of

2 statements, and then to have the freedom to elect which

3 particular statements they may choose to use in the course of

4 the Defence.

5 THE PRESIDING JUDGE: That comes from the concurring opinion?

6 MR. NIEMANN: I am sorry, your Honour?

7 THE PRESIDING JUDGE: I think it does. In any case ----

8 MR. NIEMANN: Your Honour, of course that then is reflected by the

9 amendment to the Rules in Rule 26.2. I do not think it is

10 necessary for me to specifically read the whole extract there as

11 it is available to your Honours. I am sure your Honours are

12 familiar with it. But it deals with this whole question. It

13 certainly, in my submission, having regard to the limited

14 canvassing of the law that there is available in all the

15 jurisdictions, is the pinnacle of all provisions available if

16 one looks at a fair determination of the issues between the

17 parties.

18 In our submission, your Honours, if your Honours are

19 to interpret the Statute of the Tribunal, it is appropriate,

20 having regard to the fundamental principles of international law

21 when it comes to interpreting such matters, to apply a provision

22 such as this or similar to this which would permit the best

23 determination and resolution of the issues between the parties.

24 Before I conclude, your Honours, as promised, I have

25 looked at the laws of Malaysia Evidence Act of 1971 and, in

26 particular -- I regret that I do not have a copy available to

27 hand to your Honours at the moment, but I will provide this to

28 you -- Section 129 provides that, "No one shall be compelled to

Page 6187

1 disclose to the court any confidential communication which has

2 taken place between him and his legal professional adviser

3 unless he offers himself as a witness, in which case he may be

4 compelled to disclose any such communications as may appear to

5 the court necessary to be known in order to explain any evidence

6 which he has given, but no others."

7 In our submission, this deals with the issue of the

8 accused waiving the right of privilege, and it would appear to

9 be waived once the accused decides to enter the witness box and

10 gives evidence. It is, in our submission, the similar situation

11 to which happens here, that if any privilege did attach, the

12 process of entering the witness box waives that privilege, and

13 that the request for production of the prior statements of the

14 witness relevant to the issues is an appropriate request by the

15 Prosecution and, in our submission, it is entirely proper for

16 the Court to order such production.

17 JUDGE STEPHEN: Could I ask you a question? Really, your submission

18 is based very largely, perhaps entirely, on there being a waiver

19 by the witness giving evidence.

20 MR. NIEMANN: Yes.

21 JUDGE STEPHEN: Is there any authority at all to that effect? I do

22 not recall it in any of the text on evidence. They deal with

23 waiver but not, as I recall it, from that.

24 MR. NIEMANN: There is one authority I just quoted, your Honour, that

25 is section 129 of the Malaysian provision which I just quoted

26 then, speaks of "No one shall be compelled to disclose

27 confidential communications etc. unless he offers himself as a

28 witness".

Page 6188

1 JUDGE STEPHEN: Yes, I would like to look at that carefully, but I am

2 thinking really of the textbooks on evidence. When they do deal

3 with waiver, they do not specify that giving evidence amounts to

4 waiver, do they?

5 MR. NIEMANN: No, I am not sure that I have any matters specifically

6 that may assist your Honour there, but ----

7 JUDGE STEPHEN: I will certainly have a look, but I just wondered

8 whether you had a reference.

9 MR. NIEMANN: Your Honours, there is a quote in Grant v. Downs which

10 may be of assistance in terms of the process by which one deals

11 with this. It appears in the decision of Justices Stephen,

12 Mason and Murphy at page 688 at the very bottom of page in the

13 judgment where it provides: "It is well accepted that the court

14 in allowing production and inspection of documents exercises a

15 judicial discretion. In so doing it needs to scrutinize with

16 care claims of privilege made on the ground now under

17 consideration. It is for the party claiming privilege to show

18 that the documents for which the claim is made are privileged.

19 He may succeed in achieving this objective by pointing to the

20 nature of the documents or by evidence describing the

21 circumstances in which they were brought into existence. But it

22 should not be thought that the privilege is necessarily or

23 conclusively established by resort to any verbal formula or

24 ritual. The court has power to examine the documents for

25 itself, a power which has perhaps been exercised too sparingly

26 in the past, springing possibly from a misplaced reluctance to

27 go behind the formal claim of privilege. It should not be

28 forgotten that in many instances the character of the documents

Page 6189

1 the subject of the claim will illuminate the purpose for which

2 they were brought into existence."

3 That may be assistance, if your Honour pleases, when

4 dealing with, for example, work-product privilege which may be

5 part and parcel of an otherwise verbatim record of the witness's

6 testimony or witness's statement. So, in a situation where a

7 claim is made to privilege based on the fact that it contains

8 work-product, which is clearly covered by, for example, the

9 Rules of the Tribunal, it seems to me, if your Honour pleases,

10 that this reference that I have just referred to suggests that

11 that should not prevent the Court from looking at it if such a

12 claim were to be made.

13 JUDGE STEPHEN: It is an excellently worded passage, certainly!

14 MR. NIEMANN: No doubt.

15 THE PRESIDING JUDGE: That again deals with the first privilege, that

16 is, the privilege between lawyer and client. Again that

17 opinion, that judgment, dealt with a report prepared by a client

18 given to his counsel. So the issue is under what circumstances

19 may an individual waive the lawyer-client privilege.

20 MR. NIEMANN: Yes.

21 THE PRESIDING JUDGE: Your position is a witness's statement does not

22 fit within a lawyer-client privilege. It fits within a

23 protection against discovery perhaps reflected in Rule 70(A) of

24 our Rules of Procedure and Evidence which deal with pretrial

25 matters. The only Rule we have on privilege is Rule 97 in our

26 Rules of Evidence and that is lawyer and client privilege. So

27 there is really a difference as I see it.

28 MR. NIEMANN: Yes, but -----

Page 6190

1 THE PRESIDING JUDGE: But I do not even see the Defence -- the

2 Defence has not once cited Rule 97 in the papers that they

3 filed.

4 MR. NIEMANN: But the point I would make, your Honour, is that if

5 your Honours are looking for authority to support the

6 proposition of waiver ----


8 MR. NIEMANN: --- then that is to be found in Rule 67(C) which talks

9 about the decision being made -- it talks about where it is

10 going to be used in evidence.


12 MR. NIEMANN: So, in my submission, once that decision is made, that

13 operates in a sense in the same way as a waiver operates. So,

14 in my submission, ----

15 THE PRESIDING JUDGE: Even that privilege can be waived?

16 MR. NIEMANN: Even that privilege can be waived. The whole process

17 of waiver is further reinforced by Rule 97 in the reference to

18 the fact of the person entering the witness box and giving

19 evidence.

20 Unless there are any other matters, your Honour? Your

21 Honours, I just need to draw your attention to the fact that in

22 my outline I have referred in paragraph 9 in a reference to

23 Grant v. Downs to page 608. I am informed that, in fact, the

24 correct reference is 686.

25 THE PRESIDING JUDGE: Thank you, Mr. Niemann. Mr. Wladimiroff?

26 MR. WLADIMIROFF: Thank you, your Honour. I think I would prefer to

27 confer with my colleagues before addressing the issue. May

28 I suggest that we adjourn at this moment and start at 2 o'clock

Page 6191

1 instead of half past 3?

2 THE PRESIDING JUDGE: That is why we recessed early. We indicated

3 when we returned we would like to hear your argument. So

4 I would like you to go ahead, please, with that. We really have

5 time constraints. We may have enough time to hear you some more

6 and the Prosecutor some more, but I would like you to begin,

7 please.

8 MR. WLADIMIROFF: Right, your Honour.

9 THE PRESIDING JUDGE: We have your submission and we have looked at

10 your submission you filed yesterday as well as the materials.

11 We appreciate those. Some of them were not in English, but we

12 have reviewed carefully the materials, at least, that were in

13 English. If there is anything that you submitted that is in

14 Dutch, you may want to help us out a little bit. So I am

15 letting you know in advance our limitations.

16 MR. WLADIMIROFF: Yes, I appreciate that, your Honour. Perhaps

17 I should start by asking your permission that if it comes to the

18 technical aspects of common law, I feel more confident if those

19 aspects may be discussed by Mr. Kay, if necessary. I will try

20 to deal with it, but anyhow it would be fair if I concentrate on

21 the civil law aspects and deal with the common law aspects as

22 they are on the table.

23 As we have expressed in our brief, your Honours, we

24 take the position that we are not under an obligation to provide

25 the Prosecution with any statements, whether signed, unsigned or

26 produced by mechanical means, given on a previous occasion by

27 witnesses who testified for the Defence in front of the

28 Tribunal.

Page 6192

1 We also oppose the idea that the Prosecution may

2 question witnesses as to the content of any discussions they may

3 have had with the representatives of the Defence. As you may

4 have seen in our brief, we have explained that the basis of our

5 position emerges from the international recognised principle

6 that the burden of proof in a criminal case rests with the

7 Prosecution and that the Defence should not be compelled to give

8 any evidence against himself.

9 We have taken the position that giving evidence here

10 should be understood in the broadest sense to relate not only to

11 testimony in court, but also supplying information to assist the

12 Prosecution in proving its case. We have pointed out in the

13 brief that such a position is consistent with Article 14 of the

14 International Covenant and is also part of the Statute in

15 Article 21.

16 In relation between a Defence lawyer and his client,

17 the Defence lawyer, on the one hand, acts on the instruction of

18 his client. He does not accept instructions from other parties

19 in the case. But, on the other hand, though, when it comes to

20 the execution of his instructions, a Defence lawyer is

21 independent; only he decides how to proceed within the law.

22 Within this system, the Defence lawyer is the legal

23 continuation of his client. He is the voice, the pen and the

24 brains of the client when it comes to representing him in legal

25 matters.

26 As far as the Defence lawyer and the client in this

27 system are one and the same to the outside world, rights of the

28 client may also be exercised by the Defence lawyer. The right

Page 6193

1 of the client to remain silent, therefore, is the basis of the

2 professional privilege of the Defence lawyer.

3 As you have rightly pointed out, your Honour, from

4 this principle two privileges emerge. One is the basis of the

5 privilege as such, that is any communication between the Defence

6 lawyer and his client, and the second one is the logical

7 continuation of being one and the same with his client when the

8 Defence lawyer acts on instructions of his client. That is the

9 second one we are dealing with here. We are not relying on the

10 first one. The first one, though, is the basis to understand

11 why the second one emerged.

12 From that point of view, we have been looking into

13 other systems to understand how this operates. We have been

14 focusing on four questions: Does the system maintain the right

15 to remain silent or are there indications to the contrary? Does

16 the system maintain the professional privilege, both aspects, or

17 are there indications to the contrary? Does the privilege

18 encompass communications with third parties such as witnesses or

19 are there indications to the contrary? Does a Defence lawyer

20 have to disclose as requested for by the Prosecution or are

21 there indications to the contrary?

22 We make a distinction when we are going to discuss these

23 questions between the right to cross-examine on the basis of

24 previous statements and the obligation to disclose. That is the

25 basis of our argument. We are not disputing the right to

26 cross-examine on the basis of previous statements, if you have

27 them. We are arguing that you cannot compel the Defence to

28 disclose such previous statements.

Page 6194

1 What have we found? How do these principles operate

2 in the jurisdictions of the world? As far as we could in the

3 limited time we had during the weekend, we researched the law in

4 common law systems and civil law systems, as well as the trends

5 in other systems such as the Islamic legal system and the

6 Communist system. The general trend in all jurisdictions is

7 that the right to remain silent emerges from the principle that

8 no one should be compelled to incriminate himself or to assist

9 the Prosecution in proving its case. That is all over the world

10 the basis of the criminal justice system. We have found no

11 system where an accused is not entitled to be defended by a

12 lawyer. We found in all systems that a Defence lawyer is one

13 and the same as, I just described, with his client. All systems

14 recognise the role of the Defence lawyer and the necessity to

15 work on the instructions of the client and, therefore, to

16 investigate matters under his privilege. The leading principle

17 is that the Defence lawyer is entitled to the same right as the

18 client, as if the client were in the position to do all that

19 work by himself.

20 That being so, it appears that the principle of

21 non-self-incrimination is not only a matter as regards the

22 client, but also affects the role of his Defence lawyer and then

23 we are in the second understanding of the professional

24 privilege. Defence lawyers generally do have a professional

25 privilege of this second type all over the world.

26 So the scope of our research was to investigate

27 whether legal systems provide for instruments that could be seen

28 as an infringement of that second professional privilege. The

Page 6195

1 general trend is that in most systems the judicial bodies are

2 authorised, be it in most cases under certain restrictions, for

3 example in the civil law systems the involvement of the Dean of

4 the Bar, to ignore the professional privilege in both senses of

5 a Defence lawyer if he is a suspect or an accused himself, or

6 when he is presumed to keep the corpora et instrumenta delicti.

7 These are generally recognised as exceptions and no others have

8 been found.

9 As far as we are concerned with the duties to assist

10 the Prosecution in proving its case, as claimed by the

11 Prosecution, we may pass to you the following information.

12 Statements of Defence witnesses made on behalf of an accused by

13 the Defence lawyers or their representatives in furtherance of

14 the Defence preparation, are privileged and not subject to

15 disclosure. This principle can be found in all adversarial

16 systems known to the Defence, except for the United States. It

17 has already been discussed extensively, so there seems little

18 left for me, that in England on the basis of Lord Denman's Act

19 that for more than 100 years it has been accepted that the legal

20 privilege of this second type is encompassed in British law,

21 that is that also in statutory provisions such as, for example,

22 the Police and Criminal Evidence Act, acknowledge that

23 communications between a professional legal adviser and his

24 client or any person representing his client or between such an

25 adviser or his client or any such representative and any other

26 person, hence "and any other person", made in connection with or

27 in contemplation of legal proceedings and for the purpose of

28 such proceedings are protected.

Page 6196

1 This provision may raise some questions related to

2 what must have been then the purpose of those documents drawn up

3 by the Defence, making notes or making notes of what a third

4 party such as a witness may have said. Are any communications

5 written down or not, should they only be made for the sole

6 purpose to be used in the trial or is the purpose of enabling

7 litigation a dominant position here? As I understand English

8 law, it seems to me that the dominant purpose here is the

9 leading principle. Therefore, we maintain the position that

10 under English law as long as it was our dominant purpose to

11 interview witnesses and to make notes about what they said, that

12 such work is protected under the second type of privilege. We

13 have found no evidence in the textbooks nor in the case law that

14 says other things about this.

15 So far we have no reason to believe that in English

16 law there is any basis to be found that a Defence lawyer may be

17 compelled to disclose any communication with third parties, such

18 as witnesses orally or being written down on a document, unless

19 there is a statutory provision which, we will argue, is not the

20 case here. I will come to that later.

21 In Canada we have found nothing that indicates that

22 under Canadian law a Defence lawyer may be compelled to disclose

23 previous statements of witnesses who are called to give evidence

24 in court. On the contrary, if we look to the Canadian Charter

25 as it is explained in the exhibit Annex B that we have given to

26 you, it is our understanding that although the debate on

27 disclosure has been concentrating on the duties of the Crown to

28 disclose, it did not concentrate on any duty of the Defence,

Page 6197

1 that is there are no provisions allowing the Court to impose any

2 obligation on the Defence to disclose such previous statements.

3 As a matter of fact, the case law presented by the Prosecution

4 simply and very clearly says that such an obligation cannot be

5 imposed on the Defence. So we really do not see how the case of

6 the Crown v. Peruta might support their case. It is our

7 understanding that also in the Canadian system Lord Denman's Act

8 is applicable and it is exercised in the same way as it is in

9 England. Therefore, we believe that the material handed over to

10 you by the Prosecution does not support the position. On the

11 contrary, we would say.

12 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, with respect to the

13 last case that you referred to, Peruta, as I questioned

14 Mr. Niemann, as I understand it, and it is important for me to

15 understand the posture of the case and how it arose, again as

16 I understand it there was an effort on the part of the

17 prosecutor, the Crown, to request from the Defence all witness

18 statements of its witnesses when the Defence began to offer its

19 evidence on its case in-chief. The prosecutor says: "We want

20 those statements." The trial judge gives them the statements.

21 Appeal reverses, saying that there is a privilege to those

22 statements, that in Canada there is no reciprocal discovery.

23 Maybe that is what you are suggesting exists, but it is not

24 there yet. There is no reciprocal discovery.

25 MR. WLADIMIROFF: That is right.

26 THE PRESIDING JUDGE: Therefore, the Defence does not have to hand

27 over those statements to you when they begin their case, but

28 again as I read the opinion of Judge Proulx, when he discusses

Page 6198

1 access to the statements that is when he says on page 19 that:

2 "The trial Judge in the exercise of his discretion, and in the

3 superior interests of justice, can allow access to the statement

4 and even order its production which can work in favour of the

5 prosecution." Then he goes on to say that: "I conceive it to be

6 but one facet of a wider power to order production that flows

7 from the ability of the Court to control its process so as

8 manifestly ensure fundamental fairness and see that the

9 adversarial process is consistent with the interests of

10 justice. Such a power must include the power to order the

11 production of the statement of an accused."

12 What I am asking you to do then is to focus on, if you

13 consider there is a difference, between pretrial discovery where

14 at least this Court finds that there is no right in the

15 Prosecutor because there does not exist reciprocal discovery,

16 and then the right of the Judge to order the production of the

17 statement and then allow the Prosecutor access to it for

18 cross-examination. Is there a difference?

19 MR. WLADIMIROFF: I think, so your Honour.

20 THE PRESIDING JUDGE: Because they recognise the privilege.

21 MR. WLADIMIROFF: Yes, it seems to us that a court can only order in

22 trial the production of that kind of material if there is a

23 statutory provision to that extent. If there is not the Judge

24 cannot simply by his own discretion lift the professional

25 privilege.

26 THE PRESIDING JUDGE: Again, let me ask you this. Where in our Rules

27 does this privilege that you say protects the Defence from

28 production of a witness statement, statement now, after the

Page 6199

1 witness testifies? Where in our Rules does that privilege lie?

2 MR. WLADIMIROFF: To be frank with you, your Honour, that is the

3 problem of the Rules of this Tribunal.

4 THE PRESIDING JUDGE: It is not there?

5 MR. WLADIMIROFF: There is so much not there, there is so much indeed

6 not there, how many times have we not discussed the issue of we

7 should not get technical? There are no technical rules here.

8 THE PRESIDING JUDGE: So is there a rule in our Rules of procedure

9 that would protect this production?

10 MR. WLADIMIROFF: The Rules only respond to issues that have been

11 discussed apparently between the Judges when drafting the

12 Rules. The basis of your Rules, our Rules, is the Statute. The

13 flavour of the Statute is that it recognises the principle that

14 no one can be compelled to testify against himself or to

15 incriminate himself or otherwise assist the Prosecution to prove

16 its case. It is not expressis verbis in the Statute, but the

17 flavour of it, notably if you compare it with the International

18 Covenant and if you compare it with the comments on the

19 International Covenant, makes it clear that the professional

20 privilege is a part of our system in this Tribunal. Therefore,

21 both privileges are involved here. There is no reason to

22 presume that under the Statute the drafters of the Statute had

23 only their thoughts focused on the first privilege and did not

24 think about the second privilege.

25 I cannot read in the minds of Judges, but apparently

26 when the Judges drafted the Rules of disclosure they expressly

27 confined themselves to the Rules as you did. The Defence is

28 only obliged to disclose as far as special defences are

Page 6200

1 involved, and then only to the extent to provide the other party

2 with names, dates and places, not the statements as such. It is

3 not under the Rules that we have any obligation at the pretrial

4 stage to disclose any statement to the Prosecution, and you

5 recognised that.

6 THE PRESIDING JUDGE: Before you go on, in your submission on

7 page -- I am not sure what page its, they are not numbered

8 -- page 4, I think it is the fourth page, you say that Rule

9 70(A) protects all Defence materials. What I am trying to find

10 out is where in our Rules is there a protection? I gather you

11 say that Rule 70(A) protects all Defence material.

12 MR. WLADIMIROFF: I would say that Rule 70 applies to both parties.

13 It is the bottom line. It would not make sense to draft Rule 70

14 if there is no privilege.

15 THE PRESIDING JUDGE: So that is a privilege then that inures to the

16 benefit of both the Prosecutor and the Defence not to produce

17 certain materials?

18 MR. WLADIMIROFF: Yes, and the scope of that privilege is not

19 identical.

20 THE PRESIDING JUDGE: I understand in terms of pretrial because of

21 the different burdens, but that is a pretrial argument I think.

22 Rule 67(C), however, does require reciprocal discovery and that

23 is assuming that the Defence takes advantage of Rule 60(B) and

24 requests additional material. Then the Defence is required to

25 provide to the Prosecutor those materials that it intends to

26 rely on at trial. Is it your position that 67(C) would protect

27 the Defence from providing witness statements?

28 MR. WLADIMIROFF: I take a different view, your Honour. I approach

Page 6201

1 67(C) from the assumption that if the Defence triggers 67(C),

2 then apparently it waives its privilege.

3 THE PRESIDING JUDGE: OK. So then at least in our Rules if the

4 reciprocal discovery mechanism kicks in, then, if you

5 understand, applies?

6 MR. WLADIMIROFF: Yes, I understand that.

7 THE PRESIDING JUDGE: Then the Defence would be required to give its

8 witness statements. So it seems to me that there are conditions

9 under which witness statements can be waived, that is the

10 privilege that, you say, attaches. That is just one example.

11 JUDGE STEPHEN: Could I ask you in relation to that, do you regard a

12 statement by a witness as a document which you would intend to

13 use as evidence?

14 MR. WLADIMIROFF: Absolutely not, your Honour.

15 JUDGE STEPHEN: In that case, 67(C) would not apply to witness

16 statements?

17 MR. WLADIMIROFF: Absolutely. We are going to argue that. We may

18 waive our rights on the kind of material as listed here, but

19 before I could address the observations of the Presiding Judge

20 you put forward your question. We have no doubt that the

21 statements we have written down as we appreciated what the

22 witness might have said, is not a piece of evidence we are going

23 to produce at any stage.

24 THE PRESIDING JUDGE: If it is not a piece of evidence, then are we

25 really talking about privileged matters or are we really talking

26 about evidence that is outside of the arena of discovery? At

27 least in a concurring opinion in the Nobles case written by

28 Justice White, he makes that distinction and then he goes to

Page 6202

1 back to Hickman v. Tailor. What he is saying is that some

2 matters are really not evidence. There are really matters that

3 just stay out of the pretrial discovery. So you now say it is

4 not evidence. It seems to me I wonder what is the need for the

5 privilege, or are we just saying that this is excluded from

6 pretrial discovery?

7 MR. WLADIMIROFF: The purpose of why we have done what we have done

8 is to be able to understand what is the information that is

9 floating around and to be able to decide who will be called.

10 From that basis on the document, or whatever it is, serves as an

11 instrument to examine the witness in court. It has no other

12 purpose then.

13 THE PRESIDING JUDGE: So 70(A) then, as you indicated, protects all

14 Defence materials, including statements, is that your position?


16 THE PRESIDING JUDGE: OK. That protection carries through, even

17 though it is in part 5, I think, the pretrial part of our Rules,

18 it carries through to the time of trial, is that your position?

19 MR. WLADIMIROFF: Could you say that again?

20 THE PRESIDING JUDGE: You say that Rule 70(A) gives the Defence a

21 privilege not to produce statements of its witnesses, and I am

22 asking you is that a privilege that carries on until the time of

23 trial?

24 MR. WLADIMIROFF: I do not see any reason why it should not.


26 MR. WLADIMIROFF: You see, we make a distinction between witnesses

27 giving evidence in court and a witness statement which is for

28 trial preparation and used during the trial to examine the

Page 6203

1 witness by the moving party.

2 THE PRESIDING JUDGE: We have 10 Rules of evidence and you have

3 indicated there is a problem in that we do not have extensive

4 Rules of Evidence, we do not have these technical rules like the

5 United States.

6 MR. WLADIMIROFF: Absolutely not.

7 THE PRESIDING JUDGE: Intentionally.

8 MR. WLADIMIROFF: But not for the purpose to ambush any of the

9 parties.

10 THE PRESIDING JUDGE: Not for the purpose to ambush. We have been

11 through this trial for I do not know how many weeks, and we have

12 resolved questions like hearsay questions, leading questions,

13 what is the scope of redirect, misleading questions. All of

14 these issues we have resolved based on our 10 Rules of

15 Evidence. What I suggest to you is that 89(B), I think it is

16 89(B), that says that the Judges may admit all evidence that is

17 relevant and has probative value, is just designed just that

18 way, to give the Judges latitude, that this is not a jury

19 trial. Also these are trials before an International Tribunal

20 that involve both civil and common law considerations. So we

21 have 10 Rules of Evidence, but we have been ruling on these

22 technical objections. As a matter of fact, we have one that we

23 have to rule on that arose this morning.

24 So if there was a Rule like the one in Canada, it is

25 Rule 10, then would the Prosecutor be permitted to ask for the

26 production of the Defence witness's statement and then have

27 cross-examination of that witness after the witness testifies?

28 If there was that specific Rule, if we chose to have that

Page 6204

1 specific Rule in our Rules of Evidence.

2 MR. WLADIMIROFF: No, your Honour. I may draw your attention to page

3 19 of that Canadian decision. It says:

4 "Section 10 does not give the adverse party to the

5 right to obtain the prior statement of a witness he wishes to

6 cross-examine. Neither the spirit nor the text of this

7 legislation can lead to another interpretation. However, within

8 the limits of Section 10 a judge can authorise the production of

9 the statement and, therefore, access to it. Other situations

10 can occur during cross-examination. The situation, for example,

11 where the witness would need to refresh his memory with the help

12 of his prior statement, in which case both the party examining

13 him and the adverse party would be allowed to examine the

14 document. Finally, the trial judge in the exercise of his

15 discretion and in the superior interests of justice, can allow

16 access to the statement and even order its production which can

17 then work in favour of the Prosecution."

18 THE PRESIDING JUDGE: Yes. That sentence and the one that I referred

19 to on the next page it seems to me indicate that if there were a

20 Section 10 we could order the production of the statement.

21 MR. WLADIMIROFF: Only ----

22 THE PRESIDING JUDGE: But there is not that rule. I understand.

23 MR. WLADIMIROFF: No, there is not.

24 THE PRESIDING JUDGE: We do not have a Rule ----

25 MR. WLADIMIROFF: But only if we use it, your Honour. Once again we

26 make a distinction between what we use as evidence and what is

27 in evidence and those materials we do not use.

28 THE PRESIDING JUDGE: But in this Quebec case they were not being

Page 6205

1 used by the Defence. On the contrary, the Crown wanted to get

2 them before the Defence even had an opportunity to put on its

3 case. The trial judge gave them to the Defence. The Appeals

4 Chamber said no, because there is no reciprocal discovery; there

5 is this privilege. Nevertheless, at least the way that I read

6 the case -- maybe we will read it differently -- is that

7 notwithstanding this privilege, once the witness testifies then

8 the Judge can order production and it may inure to the benefit

9 of the Prosecutor.

10 MR. WLADIMIROFF: We apparently read it differently. As we read it,

11 as long as it is not in evidence and it will not be used as

12 evidence it is privileged. Therefore, the judge cannot simply

13 compel the Defence lawyer to produce it.

14 THE PRESIDING JUDGE: It is rare for a statement to come into

15 evidence because it is implicitly hearsay under at least common

16 law systems. So that a statement is not the kind of thing that

17 you just offer into evidence. It is the kind of thing that is

18 used for other purposes, like impeachment or to refresh a

19 witness's recollection.

20 MR. WLADIMIROFF: But is not the presumption here that one of the

21 parties is using the statement.

22 THE PRESIDING JUDGE: I thought the Crown wanted to use it and tried

23 to get it in advance of trial and the trial judge said no. But

24 that is OK. We may read it differently. In any case, the

25 privilege is found in Rule 70(A) and that privilege continues on

26 to trial, as you see it?

27 MR. WLADIMIROFF: Yes. We do not see any reason why the roots of

28 that principle should be dropped during trial, because it

Page 6206

1 emerges from a principle that simply comes from the nemo tenetur

2 principle, Latin for no one can be compelled to do anything that

3 will harm his case or to testify himself or to assist the

4 Prosecution. I do not see that that principle suddenly does not

5 apply during trial.

6 THE PRESIDING JUDGE: We will stand in recess then until 2.35.

7 (1.05 p.m.)

8 (Luncheon Adjournment)






















Page 6207

1 (2.35 p.m.)

2 THE PRESIDING JUDGE: Mr. Wladimiroff, would you like to continue,

3 please?

4 MR. WLADIMIROFF: Thank you, your Honour. I hope you will appreciate

5 that I feel a little embarrassed to discuss matters of common

6 law dealing with highly sophisticated and technical aspects

7 related to that law. So I will try to deal with it as far as

8 I can but, as I said at the very beginning, I would rather

9 prefer my learned friend here to explain those technical details

10 which I am not able to do as he can. So, I will go through the

11 material, but if any question may arise, I would rather prefer

12 him to address that, as far as common law is involved, if you

13 agree with this approach.

14 THE PRESIDING JUDGE: Yes, that is acceptable. We have your

15 submission in terms of just presenting the argument. That is

16 acceptable.

17 MR. WLADIMIROFF: Thank you, your Honour. We were left with South

18 Africa, as I see it, before going into Australia. As we see it,

19 in South Africa law, all confidential oral or written

20 communication made between the accused and his legal

21 representative in the latter's professional capacity and which

22 are made for the purpose of obtaining or giving legal advice are

23 privileged and may not be disclosed in a Court of law, unless of

24 course there is a waiver.

25 Apparently, also in South African law, as you have

26 seen on page 165 of the material we have handed over to you,

27 statements obtained by the Defence from prospective Defence

28 witnesses are also privileged in that system. As my learned

Page 6208

1 friend can explain extensively to you, also in South Africa the

2 same system operates as in England. It all derives from the

3 same Act which has been in operation now for about 130 years.

4 Listening to the Prosecution, it seems to us that their main

5 argument is that during all these 130 years that Act has been

6 misunderstood by the courts and practising lawyers. We believe

7 that is not the right representation of the Act. We are

8 referring to Lord Denman's Act.

9 If I may proceed to Australia, it is a little bit

10 risky what I am doing because I am arguing about an area of the

11 law where we have a very learned experienced lawyer here who

12 will try to explain to you, that also in Australian law there

13 could have been a basis for the argument that the Prosecution

14 may ask the court to compel Defence lawyers to hand over

15 material such as previous statements.

16 Our understanding of their law is that in Australia

17 again the same system applies as in Great Britain -- it emerged

18 from the same system -- and that is that, indeed, you have the

19 right, you are permitted, to cross-examine a witness on his

20 previous statements, but the law does not provide for an

21 obligation for the other party, that is the Defence lawyer, to

22 produce those statements. We have found no evidence in the

23 material handed over by the Prosecution, nor in the case law,

24 that a Defence lawyer may be compelled by the court to disclose

25 such statements as long as these statements are not used as

26 evidence in court by the Defence lawyer. That is, in our

27 understanding, the leading principle here. So we feel that the

28 material handed over by the Prosecution does not support their

Page 6209

1 case.

2 I may draw your attention to the annex B that we have

3 produced where it deals with Australian Evidence by Ligertwood

4 at page 222 when it says: "Therefore, the proof of a witness

5 may be privileged, but if that witness is called to testify he

6 or she cannot refuse to divulge his or her observations of the

7 events in question. But this should be done without disclosing

8 that this information is also contained in the privileged

9 proof. This simple distinction between the communication or

10 work-product and the information to which it may refer can be

11 easily misunderstood". Indeed, I am afraid, the Prosecution

12 did.

13 JUDGE STEPHEN: I am sorry, what page is that?

14 MR. WLADIMIROFF: 222, your Honour. It starts with, "In the second

15 place", and then it read as I did before. The case law ----

16 THE PRESIDING JUDGE: Are we to reserve questions regarding what you

17 say to Mr. Kay?

18 MR. WLADIMIROFF: I think that is what I am asking you. But Mr. Kay

19 is quite willing to jump on his feet and to answer any of your

20 questions, if you want to raise it now.

21 THE PRESIDING JUDGE: I had a question about South Africa, I suppose

22 I have a question about this, but you can go ahead. We have

23 your submission. You can go through your submission and then

24 I will ask questions. Is that acceptable to you? OK.

25 MR. WLADIMIROFF: Thank you, your Honour. Looking to the Grant v.

26 Downs case, it has already been discussed so there is little to

27 add, I would say. I may note perhaps again that that case deals

28 with civil case, not under the right to remain silent or the

Page 6210

1 principles we have been discussing so far. So we feel that case

2 is hardly relevant, but if relevant, it certainly does not

3 support the position of the Prosecution -- on the contrary,

4 I would say.

5 The South Australian Evidence Act, the reference made

6 by the Prosecution to section 29, again it does not say that by

7 permission to use previous statements that permission also

8 arises a possibility for the court to compel the Defence lawyer

9 to produce such previous statement. It is not in this section.

10 It is our understanding that it is also not South Australian law

11 that the permission to use it in cross-examination arises an

12 obligation to produce it, when such previous statement is under

13 the privilege of the lawyer. We have explained to you that,

14 indeed, it is under that second type of privilege.

15 The reference made to the New South Wales provision,

16 Concise Evidence Law by Blazey and others, at pages 30 and 31,

17 as we understand it, those provisions that -- Judge Stephen

18 already discussed that matter as far as Section 36 was involved

19 -- does not refer to witness statements. But the other one,

20 I mean Section 35, as we understand the Section, is absolutely

21 not relevant to the case here at hand. We understand it to deal

22 with the position where one of the parties uses a document but

23 does not tender it. Then the other party may ask the Court to

24 compel the proponent to tender it. That is quite a different

25 position to what we are arguing here. So we also feel that the

26 Prosecution may not rely on this Article or this Section to

27 substantiate their case.

28 I had little time to look into the Malaysia ones, so

Page 6211

1 I think Mr. Kay will deal with that one. I will leave it where

2 it is. I would rather prefer to proceed to civil law systems.

3 Then I am more confident that I can tell you things I really

4 know what I am talking about.

5 There was an observation, your Honour, you made at the

6 very beginning of this argument today that did surprise me

7 because, if I remember that well, what you said was -- let me

8 see, I have the reference here.

9 THE PRESIDING JUDGE: If this were in a civil law system, we would

10 not have this discussion?

11 MR. WLADIMIROFF: Here it is. You said that each side will have the

12 statements of the other side, everything will be on the table.

13 I am afraid, your Honour, that that is not the case. Civil law

14 systems, as you are well aware, work with investigating Judges

15 to prepare a case. In that context, indeed, both parties will

16 have access to all statements in the file of that investigating

17 Judge.

18 But, within that system, there is no provision that

19 says that the Defence lawyer has access to the file of the

20 Prosecution if that file contains material which is not in the

21 file of the investigating Judge. The Prosecution has no access

22 to the file of the defending lawyer if he has material that is

23 not in the file of the investigating Judge.

24 It has been written a lot about, could it be

25 theoretically possible that the Prosecution has more in his file

26 than the investigating Judge? If you try to consume all that

27 theory about it, it simply comes down to the point that if the

28 Prosecution is not presenting material in evidence at the moment

Page 6212

1 the trial has started, it is irrelevant.

2 So he should present it at the very beginning of the

3 trial. He should give it to the investigating Judge or when the

4 investigating Judge is handing over the file back to the

5 Prosecution and the Prosecution decide, "Will I prosecute? Yes,

6 I will", then by handing over the file to the Judge, it should

7 be in. It cannot be case that there is anything in the file of

8 the Prosecution he may relay only later on during the trial.

9 Handing over the file to the Trial Chamber means that the

10 Defence lawyer has still access to that file. If you look to

11 the other side, the Defence lawyer may have spoken to potential

12 witnesses. He may have made notes about it and may even have

13 written down verbatim what those witnesses have said. They may

14 even go that far that you take such a witness to a public notary

15 to have an official record made up of what the witness has

16 said. At no possible stage of the trial such material is

17 evidence. Even when are produced such a statement written down

18 by a public notary and that is the statement under oath, it will

19 not be evidence.

20 We can only produce evidence as it is listed in the

21 law and the lawyer may not produce evidence himself. He simply

22 cannot. So, working under the civil law systems means that you

23 have a lot of material in your file which can never grow into

24 evidence, whatever you do with it, unless -- unless -- you

25 produce it in court and the Judge may find reason to call the

26 witness and to hear him on that material, which material by

27 itself is not the evidence but evidence is then given by the

28 witness. So, even when you have a public notary who has written

Page 6213

1 down a statement under oath of the witness, the Judge will call

2 the witness because the paper itself is not evidence.

3 THE PRESIDING JUDGE: So what happens to the statement now you

4 produce it to the Judge and what?

5 MR. WLADIMIROFF: Then in our problem I would say you waive your

6 right to keep it privileged, then the Judge may not use it as

7 evidence because it is not listed in our law as evidence. In

8 French law, as far as I am aware, it is the same, in Italian law

9 it is the same, in German law it is the same too because you

10 have this system of limited evidence. It is not free evidence.

11 Not everything can be put in. It is a limited system. The

12 issue we are ----

13 THE PRESIDING JUDGE: May I ask just on this question then, if

14 I understand you correctly, the Defence does not have access to

15 the Prosecution file?


17 THE PRESIDING JUDGE: The Prosecution does not have access to the

18 Defence file?

19 MR. WLADIMIROFF: That is right.

20 THE PRESIDING JUDGE: The investigating Judge or a Judge does the

21 investigation, takes statements from witnesses, both for the

22 Prosecution and for the Defence, puts them in a file and then

23 each party has the statements of the other witnesses and only

24 those may you use.

25 MR. WLADIMIROFF: That is right.

26 THE PRESIDING JUDGE: Then, of course, if a witness testifies, then

27 you may use that statement to cross-examine, I suppose? I do

28 not know whether there is a rule, but at least you can do it.

Page 6214

1 MR. WLADIMIROFF: In practice, it comes to that effect indeed.

2 THE PRESIDING JUDGE: Even though it is a statement of a Defence

3 witness, you may take that statement, cross-examine the witness

4 and there is no specific rule allowing that, but that is the way

5 it is done.

6 MR. WLADIMIROFF: Right. So ----

7 JUDGE STEPHEN: Can I just ask you to elaborate on that?

8 MR. WLADIMIROFF: Yes, please.

9 JUDGE STEPHEN: Take the case where the Defence counsel has a witness

10 who for some reason has not been questioned by the investigating

11 Judge, and in the course of the trial he wishes to introduce the

12 evidence of that witness. Of course, he has a witness statement

13 which he has taken from that witness. I assume that he can

14 introduce that witness and have him give evidence, is that?

15 MR. WLADIMIROFF: What you would do, under these circumstances, is

16 the material you have in your file which you call a witness

17 statement -- what is in a word? We would say, "These are my

18 notes about what I know about that witness", but even if I went

19 to a public notary and have it in a form you would call, indeed,

20 a witness statement and we would call a witness statement,

21 though not a piece of evidence but a witness statement, what

22 I would do is ask the Judge permission to call for that

23 witness. Then the Judge may direct the Prosecution to call for

24 that witness, a witness on behalf of the Defence. It is very

25 odd but you would ask the Prosecution ----

26 JUDGE STEPHEN: You would ask the Prosecution to call him?


28 JUDGE STEPHEN: But the Prosecution will not know anything about what

Page 6215

1 he might say.

2 MR. WLADIMIROFF: They are an officer of the court in that respect.

3 The Court orders the Prosecution to call for a witness on behalf

4 of the Defence. The Defence does not have the right in civil

5 law systems to call for witnesses themselves.

6 JUDGE STEPHEN: What does the unfortunate Prosecutor do suddenly

7 confronted with someone he has never spoken to and knows nothing

8 about what he can say?

9 MR. WLADIMIROFF: He is only the instrument, your Honour. He calls

10 for the witness. The witness will appear in the court and will

11 be examined by the Defence.

12 JUDGE STEPHEN: I see. All right. We have got to that stage and he

13 is being examined by the Defence ----


15 JUDGE STEPHEN: --- and that has concluded. The next stage is,

16 perhaps, that the prosecuting counsel can ask questions?

17 MR. WLADIMIROFF: Yes, to be more precise, in our system, the Judge

18 starts questioning the witness and then the party who asked for

19 that witness will question the witness after that and then, your

20 example, the Prosecution will be the last one.

21 JUDGE STEPHEN: My critical question then is this: at any and if so

22 what stage can either the Judge or the prosecuting counsel

23 demand from the Defence his notes or his sworn statement of that

24 witness?

25 MR. WLADIMIROFF: None, never, because it is in our system

26 irrelevant. I do make a distinction here. In your system, you

27 make a distinction between material that has probative value

28 related to the guilt or not and material that relates to, let us

Page 6216

1 say, impeachment purposes, but may not be related to the guilt.

2 That distinction is not in civil law systems. It may be

3 indirectly an issue, but it is not regulated by the law. There

4 is no case law about it, there is no statutory provision that

5 deals with that distinction. None whatsoever. So what happens

6 is that the question never arises that a Defence lawyer will be

7 compelled to open his file. The only exception you will find in

8 all jurisdictions over the Continent if that material is related

9 to the guilt evidence in our sense, for example, when he is an

10 accused himself or he is participating in any crime, if those

11 materials were the corpora at instrumenta delicti, if they were

12 part of the delicti itself or were instrumental for that crime.

13 But, as far as he has prepared his case by talking to people, he

14 cannot produce evidence by himself. He can only propose to the

15 court to have a witness called and then the statement in court

16 will be evidence, but what the lawyer prepares can never be

17 evidence and can never be asked and is never asked. There is a

18 wide understanding all over Europe that that material is not

19 evidence, can never become evidence and is a part of your

20 professional privilege.

21 THE PRESIDING JUDGE: What about the Prosecutor, his file, does the

22 Defence have access to his file ----


24 THE PRESIDING JUDGE: --- to the extent that material -- so it is

25 equal? Both sides, both the Defence and the Prosecutors stay

26 out of each other's file? They are limited to what is in the

27 investigating Judge's file?

28 MR. WLADIMIROFF: There is a difference, though. If the Prosecution

Page 6217

1 has material that is exculpatory for the Defence, he is under

2 the obligation to produce it. If he has material that says it

3 is (A) and the other one says it is A accent, he is free to

4 choose which one he will use.

5 THE PRESIDING JUDGE: But any material that was not gathered by the

6 investigating Judge, as opposed to, say, the Prosecutor who may

7 go out and do his own investigation and talk with people, that

8 is excluded from the Defence access, just as the Prosecutor

9 cannot get at the Defence's file, is that so?

10 MR. WLADIMIROFF: That is right, but the theory has it that at the

11 end of the day when he hands over the file to the Court, he

12 cannot have anything that has not been disclosed to the

13 Defence. So if he has after all, it is excluded, it is

14 inadmissible, because he should have disclosed it during the

15 pretrial investigations.

16 THE PRESIDING JUDGE: So there the cards are truly on the table.

17 MR. WLADIMIROFF: Yes, when you entered the trial, it should be on

18 the desk on the part of the Prosecution. There is no doubt

19 about it.

20 THE PRESIDING JUDGE: Is this by rule -- are there rules -- or is the

21 practice you have been talking about?

22 MR. WLADIMIROFF: It is practice. Sometimes you see in systems like,

23 for example, in Germany you have more specific rules because

24 Germans do do things very properly, so you will have detailed

25 rules about this. In the Netherlands, they are very vague, as

26 they are in France. But the general practice is that at the

27 very start of the trial the material should be there and

28 disclosed to the Defence. The Defence is not under an

Page 6218

1 obligation to disclose anything.

2 THE PRESIDING JUDGE: Thank you. That tells me, I suppose, that a

3 new practitioner would not have a whole lot of guidance about

4 how to proceed in the civil law system, but I have been a lawyer

5 too long to start over again. I think I will just stay here,

6 but I understand. That does not violate, I gather, the

7 accused's rights, does it, the fact that this kind of practice

8 is a practice and not by rule?

9 MR. WLADIMIROFF: You see, if you look at the literature, as I have

10 done, for example, the Dutch one, you will read that this

11 distinction which one could make between professional privilege

12 in the context of the lawyer-client relationship should not be

13 distinguished from the professional privilege as far as lawyers

14 acting on behalf of his client. There are very good examples

15 such as, for example, a doctor, if he wants to heal his client

16 or patient, how you say that, it may be necessary to put

17 questions to the family about diseases which are in the family

18 or to put questions to a third party, for example, a partner of

19 the patient with whom the patient had, for example, sexual

20 relations. There might be a sexual disease involved. Then the

21 doctor, to do his profession well, under the privilege of his

22 profession, should be able to put forward questions to those

23 third parties without the risk of disclosure.

24 It is exactly the same as we feel it here in Europe

25 with lawyers. You cannot do your job, prepare a case, if you

26 are not able to communicate with third parties when those

27 communications are not protected. We do not maintain, as is,

28 apparently, the case in common law, that very sharp distinction

Page 6219

1 between the material that may be used in terms of evidence

2 related to the guilt and material that is related to impeachment

3 purposes; you do not. You will see in court on the Continent

4 that in most cases the Judge will not allow either party to go

5 into areas which are not relevant for the guilt, solely for

6 impeachment purposes. So you do not separate your material to

7 these differences. It is all in one.

8 THE PRESIDING JUDGE: President Cassesse, I believe -- maybe I should

9 not attribute remarks to him -- at least in terms of our Rules,

10 I suppose, has said -- I will be corrected if I am wrong and

11 this certainly is not evidence -- that our Rules, although they

12 combine both civil and common law systems, are tilted towards

13 the common law system, and that is because in part our Statute

14 is tilted towards the common law system. I could be wrong about

15 what he said, but just from listening to you and looking at our

16 Statute and our Rules, it looks that way except for 98 where we

17 can produce evidence and, of course, on appeal the Appeals

18 Chamber may call for new evidence which is not in our common

19 law.

20 MR. WLADIMIROFF: But, your Honour, your order -- 97, was it not?

21 No, it is not. 98, it says: "A Trial Chamber may order either

22 party to produce additional evidence", evidence.

23 THE PRESIDING JUDGE: I understand.

24 MR. WLADIMIROFF: Yes. So we have a lot of problems here, I would

25 say, if we use words which may have a different meaning in

26 different systems. That is one of the problems I am facing

27 here.

28 THE PRESIDING JUDGE: In common law, I do not think that a statement

Page 6220

1 would be evidence except under certain circumstances, but anyway

2 you are talking about civil law.

3 MR. WLADIMIROFF: Those certain circumstances, your Honour, are

4 giving rise to the problems we are discussing now. That is the

5 problem we have. Anyhow, what I have done is presented to you

6 an opinion of a Dutch law Professor dealing with the issue very

7 clearly. He was asked in a case (in which one of my partners

8 was involved) whether he had the privilege of non-disclosure on

9 the basis of Article 218 of the Dutch Codes of Criminal

10 Procedures as far as communications with third parties were

11 involved. The answer on the last page is clearly, yes, you do

12 have a privilege of non-disclosure related to your communication

13 with third parties as long as you acted as lawyer on behalf of

14 your client.

15 In between, you will find, if you could read it, a lot

16 about the reasoning of it. But just come down to the material

17 I have handed over to you, that is the Dutch Code of Criminal

18 Procedure, you will find on page 219 an Article 106 which

19 relates to that Article 218, as I have said. It simply says

20 that everyone who is mentioned in Article 218 cannot be obliged

21 or cannot be compelled to hand over any material which is under

22 their privilege.

23 It is very clear language and that is what I already

24 told you. You cannot simply go to the Defence lawyer and say,

25 "Well, we have the file of the investigating Judge, but we feel

26 you might have more, give it". It is impossible. It is very

27 clear in the law here. Article 218 in Dutch law does not list

28 exactly who are under this privilege. It says that those who

Page 6221

1 are obliged to keep secret all that has been entrusted to them

2 or has become known to them in their professional capacity have

3 the privilege of non-disclosure. It is for the judge to decide

4 who is such a professional helper. It is established case law

5 in evidence that Defence lawyers are.

6 What you see in France and what you see in Italy is

7 exactly the same system. You have a provision in the law

8 dealing with those who are under that privilege. Then you will

9 see that you cannot simply seize materials from them, nor can

10 you order them to hand them over except for, and there you will

11 have exceptions. It is exactly in the same system. Though

12 I could not find all the details in France or in Italy that

13 quick, I have produced all those parts I could find that

14 indicate, indeed, that the system functions according to the

15 same line of thinking.

16 What I have done with the German one is -- that is

17 more extensive. As I have already said, the Germans go more in

18 detail and that is the reason why I gave it all. Their system

19 is exactly the same, but the Germans make a distinction between

20 material that has been entrusted to you and material that has

21 become known to you, because that distinction acknowledged the

22 distinction between the client-lawyer relation, then it has been

23 entrusted to you, and the other relations of a lawyer acting on

24 behalf of his client, then it has become known to the lawyer.

25 In German case law though, they accept that also under

26 specific circumstances in trial preparation also third parties

27 may entrust you with material. So, it is more than just

28 becoming known to you. That is the reason why I have given you

Page 6222

1 this decision of the Trial Chamber of Frankfurt. That case

2 dealt with an opinion of an expert witness which was given to

3 the Defence lawyer. The Prosecution asked the Defence lawyer to

4 hand over that opinion of the expert witness. The Court ruled

5 that the Defence lawyer was not obliged to hand over that

6 opinion to the Prosecution.

7 Whatever the purpose of that opinion was, whatever in

8 common law would be the argument, was that made for the full

9 purpose to be evidence once or was it predominantly produced by

10 the expert witness on request of the Defence lawyer to be used

11 in evidence or was it not to be used in evidence but just to

12 instruct the Defence lawyer, it is irrelevant in the continental

13 system. So, the ruling was very clear on it. You cannot simply

14 ask a Defence lawyer to produce material he has been given by

15 third parties in order to prepare his case, whatever the

16 preparation is, what the purpose of his preparation is.

17 I must admit that the material I have given to you

18 about Yugoslavia is quite extensive and I am not able to tell

19 you all about it. The only thing I can tell you is that in

20 Article 151 of the Codes of Criminal Procedure comes down to a

21 stipulation that says: "No one can ask a witness or a citizen

22 to produce evidence or to co-operate with an examination unless

23 provided by law". It is my understanding, and it is in the

24 textbook I have given you, that this expression of "no one is

25 obliged to co-operate unless there is a statutory provision you

26 have to".

27 If you look into the statutory provisions, you will

28 see under Article 226 of the Yugoslav Code of Criminal Procedure

Page 6223

1 that the materials and the work-products of the Defence lawyer

2 are protected. No one can compel him to disclose what is within

3 his professional privilege. That is what it says. So that is

4 all I can tell you about Yugoslavia. It seems to me, from what

5 I have learned about it, that it is the same pattern again; no

6 distinction between material to impeach or evidence. It is all

7 the same. It is protected. You are not compelled to produce

8 any evidence or any material.

9 If I may proceed to the more global view from the

10 European Court, I will do that by just passing along what I have

11 done with the other systems, that is, the Islamic criminal

12 justice systems. It is not very elaborate, but you will find in

13 that material it simply shows there is no reason to believe that

14 in those countries they take a different view. It seems to us,

15 reading that Article, that also there they accept the principle

16 of the right of the accused to remain silent.

17 Therefore, as we understand it, there is no reason to

18 believe that a lawyer acting under the same principle will have

19 to disclose. As far as we are aware, there are no disclosure

20 obligations whatsoever in that system. But I only can say these

21 are indications we have got from that Article, that we have no

22 positive information about that. That is all we can give you.

23 THE PRESIDING JUDGE: The Article indicated in the introduction that

24 it was going to discuss the rights of the accused at ----

25 MR. WLADIMIROFF: Very promising.

26 THE PRESIDING JUDGE: -- two stages, investigation and prosecution,

27 and all that you gave us was investigation.

28 MR. WLADIMIROFF: And there it stops.

Page 6224

1 THE PRESIDING JUDGE: It stops at 107?

2 MR. WLADIMIROFF: There is nothing else. We can give you the book,

3 if you like. There is more interesting stuff indeed, but the

4 author starts as very promising and then when the point would

5 come ----

6 THE PRESIDING JUDGE: He never addresses a word about the rights of

7 the accused at trial.


9 THE PRESIDING JUDGE: So he needs to understand that when ----

10 MR. WLADIMIROFF: Again, your Honour, it is a taste of it. The taste

11 of it is not that we have the feeling that in that system you

12 have a different approach.

13 THE PRESIDING JUDGE: No, not really because it just tells me about

14 the investigation stage. I was very curious to find out what he

15 had to say about the trial, but he ended it too soon.

16 MR. WLADIMIROFF: That is what he did. China, also nothing more than

17 indications, are there any indications to believe that in

18 Communist China the criminal justice systems takes a different

19 view? Are there reasons to believe that the Defence lawyer is

20 totally separated from his client, he may not have the same

21 rights, he is under larger pressure, he may have to disclose.

22 You cannot read anything about it directly, but if you

23 sense a taste of what you read, it seems to us, for example, if

24 you look into Article 80, the idea behind it seems to us that

25 also in the context of a search you cannot compel a Defence

26 lawyer to do anything that might assist the Prosecution to prove

27 the guilt of his client, the defendant and certainly not to

28 co-operate with the Prosecution for impeachment purposes.

Page 6225

1 The same flavour you will find in Article 84. You

2 will see there it comes down to the relevancy test. So we feel

3 also here no positive indication. We cannot show you how it

4 works, but there is no indication if you read their Code of

5 Criminal Procedure that there is a different system there, that

6 in those countries the lawyer has less rights than his own

7 client and, therefore, this privilege is mutilated. No

8 indication whatsoever.

9 THE PRESIDING JUDGE: Just one question on that, if you are going to

10 respond to these questions, Article 36 says: "The testimony of

11 witnesses must be subjected in the courtroom to the questioning

12 and cross-examination of both sides, the Public Prosecutor and

13 the victim and the defendant and the defender, and only after

14 the testimony of witnesses on all sides has been heard and has

15 undergone verification may it be used as a basis for determining

16 a case". This is even more foreign to me than the Dutch system

17 you described.


19 THE PRESIDING JUDGE: What does this verification mean? What kind of

20 verification is there? Is the witness subject to being required

21 to verify his testimony? Is it important that the Court have

22 all evidence to make a credibility assessment or not? I do not

23 know what that means.

24 MR. WLADIMIROFF: I cannot answer that question, but as we read it,

25 it seems to us that also here you have an indication that the

26 evidence must be presented in court and there is no such a

27 system that either party can be compelled to put forward

28 evidence that is not inside the court.

Page 6226

1 THE PRESIDING JUDGE: It goes on to say: "Should the Tribunal

2 ascertain that a witness has intentionally given false testimony

3 or concealed criminal evidence, it shall handle" -- let me just

4 finish the sentence -- "the matter according to law". Again

5 I was wondering whether the Court were able to make a

6 determination as to whether this witness has not been truthful

7 or whether he has withheld evidence and what was the procedure.

8 MR. WLADIMIROFF: Not -- I would say as you may understand this line

9 in the context of common law, that is, a separate issue has been

10 raised now how to deal with that witness in court on the basis

11 of impeachment. Impeachment, your Honour, as it seems to me,

12 after reading all the material and thinking about it, is an

13 issue that has been elaborated within the common law system.

14 THE PRESIDING JUDGE: So why are we looking at the civil law

15 systems ----

16 MR. WLADIMIROFF: Because it teaches us ----

17 THE PRESIDING JUDGE: --- if the whole -- let me just finish -- if

18 the issue as framed by the Prosecutor is whether a statement of

19 a witness for the Defence may be used by the Prosecutor for

20 cross-examination after the witness testifies. We are focusing

21 on a pure impeachment issue, not on a pretrial production of

22 witness statements. I understand from listening to you as much

23 as I can the civil law system is that the investigating judge

24 develops the case, gives it to the parties and that is the

25 evidence. If the whole notions of impeachment really are not

26 something that are considered in civil law, then maybe we need

27 to go back to our common law authorities. I understand your

28 position on those.

Page 6227

1 MR. WLADIMIROFF: I would say there is more than that, your Honour.

2 Although the impeachment has been elaborated in common law

3 systems, how it works in common law systems is limited by the

4 same principles as by which civil law systems and, apparently,

5 other systems are ruled. That is the limit is set by the

6 obligations of the parties. The Prosecution is under the

7 obligation to prove its case and the defendant is not under the

8 obligation to assist the Prosecution in that. That also relates

9 to matters of impeachment.

10 The issues may differ, impeachment of what, but the

11 principles, apparently, are all over the world the same. You

12 cannot separate a lawyer from his client. You cannot say that

13 the privilege of a lawyer can be separated from that first

14 understanding of the privilege by simply saying, "For

15 impeachment purposes, we do not recognise your privilege. You

16 are simply compelled to produce your evidence which you have in

17 your file". You will see it nowhere except for the United

18 States. That is what worries us because ----

19 THE PRESIDING JUDGE: I see it in Canada and ----


21 THE PRESIDING JUDGE: I see it in the opinion and we have a Canadian

22 Judge.

23 MR. WLADIMIROFF: It is not a ruling, your Honour. It is an opinion

24 which was overruled by the others. It is not a ruling of the

25 court. It is not held in Canada.

26 So we feel that the issue, how far can the Court go in

27 compelling the Defence to assist the Prosecution for impeachment

28 purposes, is not a matter that can be dealt with by

Page 6228

1 jurisprudence. It is a matter of statutory rules. If this

2 Tribunal feels that that is appropriate (and we dispute that),

3 all Judges should decide that and add it to the Rules. Then we

4 have a very clear situation and everyone knows exactly where we

5 stand. It is not to the discretion of the Trial Chamber to

6 amend, effectively, the Rules to the extent we have been

7 discussing today, because then Article 6 would ----

8 JUDGE STEPHEN: If I may interrupt you, there is no question of

9 having to amend Rules. The simple situation is the Rules do not

10 deal with it. So that if one did order disclosure, it would not

11 be a question of amending the Rules, would it?

12 MR. WLADIMIROFF: I think it is, your Honour. After we have started

13 a trial, there was no indication in the Rules whatsoever that at

14 any stage of the trial, after we have started our case, after we

15 have presented our first two witnesses ----

16 THE PRESIDING JUDGE: Excuse me, Judge Stephen is trying to help

17 you. What he is saying is it is not in the Rules, it is not a

18 matter of changing the Rules. It is a matter of creating a new

19 Rule, so take that help.

20 MR. WLADIMIROFF: Yes. I was going to confer with more words, so

21 I am not going to address it again.

22 THE PRESIDING JUDGE: We do not have a Rule on hearsay. I know you

23 really have been concerned about that. That is a subject of a

24 decision that we entered as well as a concurrent separate

25 opinion, basically saying, well, the decisions speak for

26 themselves. We do not have a Rule on hearsay. We do not have a

27 Rule on leading questions, as I said. We do not have a Rule on

28 the scope of the evidence. We do not have a Rule on misleading

Page 6229

1 evidence.

2 Believe me, when the Rules were prepared, we received

3 recommendations from countries and NGOs from all over the

4 world. I am sure, if the United States had its way, the Rules

5 would be much more specific, but they are not so specific

6 intentionally. I think that comes through in our decision on

7 hearsay.

8 We have 10 Rules focusing on the admission of relevant

9 and probative evidence, non-jury case, International Tribunal,

10 civil and common law systems trying to come together to resolve

11 questions involving international and humanitarian law. We have

12 been through this trial and we have handled it.

13 There is no Rule on how the Defence should proceed to

14 use Prosecution statements for cross-examination, but we have

15 allowed it. For example, there is no Rule that would say: You

16 have to show the witness the statement first to see whether or

17 not he adopts it and show the inconsistency to him, as is in

18 Section 9, I guess, of the Canadian rule and whatever the rule

19 is in Australia. We do not have a Rule like that. We have not

20 required that you operate that way. We have used the discretion

21 of the Trial Chamber in controlling evidentiary matters. It was

22 done by design, but I understand your position. You wish there

23 were more Rules.

24 MR. WLADIMIROFF: No, no, your Honour. There are two issues here,

25 perhaps three. We dealt with one, that is, how should we

26 understand how these things operate in all jurisdictions? Now

27 we come to another issue, how should it operate within this

28 jurisdiction and this Tribunal? What we are saying here is

Page 6230

1 that, reading the Rules, we are fully aware, for example, on

2 hearsay evidence, that reading your Rule 89 it is not in there

3 and there was some bottom line phrased in Rule 89. So we were

4 aware of the problem. That is the reason why we raised it.

5 That is ----

6 THE PRESIDING JUDGE: Except in your motion you were contending that

7 the Rules do not allow for the admission of hearsay evidence.

8 Our decision said that our Rules do not address that issue.

9 Yes, they do not mention hearsay.

10 MR. WLADIMIROFF: That is not what I am saying. What I am saying is

11 that we were fully aware by the text of Rule 89 of the hearsay

12 problem. We may not like it and that is the reason why we have

13 proposed our motion, but we were fully aware the Rules properly

14 informed us about the problem.

15 Dealing with disclosure, if you read the Rules about

16 disclosure, they are drafted in a way, written in a way, that we

17 read them as extensive. These are the Rules of disclosure

18 within this Tribunal.

19 THE PRESIDING JUDGE: Not requiring you to give ----

20 MR. WLADIMIROFF: No warning whatsoever that during the trial we may

21 be confronted with another understanding, a more extensive

22 interpretation, no, not an extensive interpretation, adding to

23 the Rules a new principle which is absolutely contradictory to

24 what we feel is in the Rules, because the Rules show a closed

25 system.

26 The Prosecution is obliged to disclose because they

27 have to support their indictment, and they have to provide in

28 the Rules us with material. The Rules are very clear. We have

Page 6231

1 no obligation to provide them with any material at the pretrial

2 phase. As I said before, these Rules come from the same

3 principle, who has the burden of the proof and what is the

4 position of the Defence here? Apparently, you have chosen, the

5 Judges have chosen, or the system, as has been described in the

6 Rules, in the pretrial stage no obligation on the Defence, only

7 to give limited information related to special defences. As

8 I explained, after the trial has started, the principles are the

9 same and you kept silent on that issue. So we understood that

10 also the principle applies in trial and, therefore, no

11 disclosure obligation whatsoever.

12 THE PRESIDING JUDGE: May I ask you just a few questions that really

13 relate to the motion that was filed by the Prosecutor early on

14 for Defence witnesses' statements? You may recall that the

15 motion was filed because it was the position of the Prosecutor

16 that there was an agreement between the Defence and the

17 Prosecutor that each side would provide its witness statements.

18 MR. WLADIMIROFF: It was not ----

19 THE PRESIDING JUDGE: You disputed the existence of that agreement.

20 Of course, the Prosecutor has offered as Exhibit 349 under seal

21 a letter from the Defence listing its witnesses and indicating

22 which ones you have a statement and for which ones you have a

23 video. But, in any case, you have disputed that there was this

24 agreement to exchange witness statements, but you sent a letter

25 indicating for which witnesses you had a witness statement.

26 The Prosecutor then filed a motion asking for all of

27 the witness statements 30 days prior to the time that the

28 Defence begins to offer its evidence. The Trial Chamber denied

Page 6232

1 that motion saying that in the Prosecutor's motion they had

2 failed to show any reasons which would entitle them to those

3 witness statements, other than the need to have an "orderly

4 trial", as I recall.

5 So that was our decision at that time, but the motion

6 that we were acting on at that time was a request for all of the

7 statements 30 days before the witness testifies -- that sounds

8 like what the Crown was asking for in the Peruta case -- and we

9 denied that. We denied that. If you have indicated that there

10 was no agreement, then at least that is a different position

11 than the Prosecutor. But it is not really, this issue is not so

12 much related to the Prosecutor. As I see it, it is more related

13 to the Trial Chamber.

14 We, Judges, will have to resolve credibility issues.

15 That is what I like about Section 10 from Canada and a similar

16 Section from Australia that allows the Judge to produce it. As

17 a Judge, when I am called upon to resolve a credibility issue,

18 what I have is testimony from Prosecution witnesses, use of

19 prior statements by Defence counsel for impeachment purposes.

20 It is very helpful to me in some instances to take a look at the

21 witness and then listen to what else and try to resolve these

22 very difficult credibility issues. But now, for the Defence

23 witnesses, you have indicated that that should not be allowed

24 because it is privileged ----

25 MR. WLADIMIROFF: Yes, we should have known before.

26 THE PRESIDING JUDGE: -- it is the privilege in 70(A) which, you say,

27 carries on through trial. That is my problem.

28 MR. WLADIMIROFF: We should have known before, your Honour.

Page 6233

1 THE PRESIDING JUDGE: If you had looked at the decision carefully you

2 would have known before. Just because the Defence does not have

3 to provide witness statements 30 days before they begin their

4 case in chief, does not necessarily, it can be argued, mean that

5 they are not relevant once a witness testifies for impeachment

6 purposes in the interests of justice, in the interests of

7 resolving credibility. But I understand, you say that you

8 thought that was for all times, even though all they asked for

9 was 30 days prior. They did not ask to use them for impeachment

10 purposes. They said, "Give them to us 30 days before".

11 MR. WLADIMIROFF: Your Honour, it is not a matter of simply reading

12 your decision and then the case is settled. It is the whole

13 system as it is. The Statute, the Rules and your decision at no

14 stage gave any indication that during trial, after we have

15 started to present our witnesses, after we have selected our

16 witnesses, after we have informed you about our witnesses, who

17 will be called, that at the time of the third witness this

18 problem will be raised and settled in the way as has been

19 suspended now.

20 THE PRESIDING JUDGE: If the Trial Chamber decides to overrule an

21 objection that someone makes about the scope of redirect, do

22 they say, "Well, look there is no rule. We had no idea that you

23 were really going to tie us so tightly to this business of going

24 beyond the scope of cross-examination. There is nothing in the

25 Rules dealing with that. We had no idea that you were going to

26 conduct these trials in such a technical way". I would say look

27 at the 10 Rules. The 10 Rules guide us in trying to acquire the

28 evidence that we consider is relevant and probative.

Page 6234

1 MR. WLADIMIROFF: I have tried to explain, your Honour, that dealing

2 with the evidentiary rules we take a different position here.

3 If you read those Rules, you will understand exactly what the

4 problems are because you know they are not extensive. They are

5 not exhaustive. It is a clear picture. We are dealing

6 with ----

7 THE PRESIDING JUDGE: But we have a rule on a lawyer-client

8 privilege. It is in our Rules of Evidence. It says that

9 communications between a client and a lawyer may not be

10 disclosed at trial. It is right there. So if you interpreted

11 that Rule to mean that they could not be used for impeachment,

12 then that is the way that you read that Rule. Not a surprise,

13 it is just your reading of the Rule. It is right in here and it

14 is in the section on evidence.

15 MR. WLADIMIROFF: Your Honour, we have been arguing that all

16 communications between lawyer and client cannot be seen as a

17 whole principle as such. It is one representation of the same

18 principle. We do not understand Rule 97 in the context of the

19 Statute, that the Rule curtails the principle as laid down in

20 the Statute that professional privilege is more than only a

21 lawyer client relation. As yourself explained to the

22 Prosecution, it has two aspects. We believe that both aspects

23 are in the Rules because it emerges from the Statute.

24 THE PRESIDING JUDGE: I thought you said you did not have any

25 indication from the Rules. Now you are saying that you have an

26 indication, but the Rules were interpreting them wrong.

27 MR. WLADIMIROFF: We have no indication in the Rules that there was

28 any obligation to disclose beyond what has been extensively

Page 6235

1 describe in the Rules.

2 THE PRESIDING JUDGE: OK. So the Rules are there. You interpret

3 them a different way.

4 MR. WLADIMIROFF: No, because the Rules should be understood in the

5 context of the Statute. The Statute recognises, because it

6 refers to the International Covenant, that there is a privilege

7 and that a privilege is also including your contact with third

8 parties. Indeed, we were confirmed in that belief because the

9 Rules simply said that we are not to disclose anything with

10 third parties. It says we have only to disclose to the

11 Prosecution when we have a special defence and nothing more.

12 Then you may say, "Well, that was not in our mind when we

13 drafted these Rules", but that is very difficult for the

14 lawyers, your Honour, to understand what has been in your minds

15 when you wrote these Rules.

16 THE PRESIDING JUDGE: No, no, I did not say it was in our mind.

17 I say that we have a Rule on privilege. In the 10 Rules of

18 evidence, we have a Rule on privilege. The question is whether

19 or not that rule on privilege precludes the use by the

20 Prosecutor of witness statements once the witness has

21 testified. That is something that we can look at, but then you

22 have said look to Rule 70(A). That precludes the disclosure or

23 the use.

24 So you have found two Rules in our evidence that you

25 say support your position. I do not understand when you say

26 that there is nothing in the Rules that deals with this issue.

27 MR. WLADIMIROFF: I am making a distinction, your Honour, between

28 rules that show as not extensive and makes clear there is a lot

Page 6236

1 left to the discretion of the Judges. That is, for example, the

2 case when we talk about evidence. We also have Rules that show

3 as exhaustive, they give you all, and then we learn in the trial

4 that the Judges say, "Well, that is not what we meant, they are

5 not exhaustive". That is our problem because we feel that the

6 Rules on disclosure were exhaustive.

7 THE PRESIDING JUDGE: What I am suggesting to you is that if the

8 existing Rules that we have, and you say in your submission that

9 Rule 70(A) prohibits the disclosure, if we were to reach a

10 different result, it is a question of our interpretation of that

11 Rule. That is all. But I understand your position. I do not

12 know what else we can say, but you can continue and say it

13 again.

14 MR. WLADIMIROFF: Indeed, it will come down to, will the Tribunal do

15 it the American way by understanding internal documents,

16 according to the federal rules -- that is what it all comes down

17 to -- or do you interpret Rule 70(A) as seems to be the case in

18 other common law jurisdictions and as seems to be the case in

19 civil law jurisdictions? That is simply what we are arguing

20 here.

21 THE PRESIDING JUDGE: You want it to be interpreted to include

22 statements?

23 MR. WLADIMIROFF: Yes. We want it to be interpreted as is the case

24 in common law systems other than United States and the civil law

25 system, that is, all material in the file of the defendant which

26 is not produced as evidence is under the professional privilege.

27 THE PRESIDING JUDGE: OK. If it needs to be interpreted that way,

28 I understand, then to incorporate the privilege, the second type

Page 6237

1 privilege, the materials collected privilege.

2 MR. WLADIMIROFF: Because one cannot separate it. A doctor cannot do

3 his work ----

4 THE PRESIDING JUDGE: If that is true, Rule 70 says: "Notwithstanding

5 the provisions of Rules 66 and 67", and then it goes on to say,

6 "internal documents" etc., "are not subject to disclosure or

7 notification". OK?


9 THE PRESIDING JUDGE: OK. In Rule 66(A), the Prosecutor is required

10 to give witness statements. So, how can 70(A) mean to say,

11 notwithstanding what we said in 66, you do not have to give

12 statements? That is preposterous.

13 MR. WLADIMIROFF: Because, as I explained ----

14 THE PRESIDING JUDGE: That is not an American rule or a British rule

15 or --

16 MR. WLADIMIROFF: Once again, your Honour, the scope might be

17 different. The working of Rule 70, the scope of Rule 70(A) is

18 not identical for both parties, because Rule 70(A) may not set

19 aside a principle that is at stake in criminal cases, that is,

20 the Prosecution will have to prove its case. So Rule 70(A)

21 means, in the context of Defence lawyers, that our obligation

22 does not go beyond 67(A)(ii), or if he waive by triggering 67(C)

23 other material. 70(A) confirms that, indeed, what is in

24 67(A)(ii) is limited to a kind of information which is not

25 confidential, is not privileged, cannot be privileged. It is

26 simply passing names, places, times and that is it, not giving

27 any statement whatsoever. That is confirmed in Rule 70(A).

28 As far as the Prosecution is referring to Rule 70(A),

Page 6238

1 70(A) cannot set aside for the Prosecution that they have

2 another obligation there, and that is to support their

3 indictment.

4 THE PRESIDING JUDGE: But then 67(C) is the reciprocal discovery. It

5 says: "If the Defence makes a request pursuant to Sub-rule

6 66(B), the Prosecutor shall be entitled to inspect any books,

7 documents photographs and tangible objects, which are within the

8 custody or control of the defence and which it intends to use as

9 evidence at trial". You say that that does not include

10 statements?

11 MR. WLADIMIROFF: No, because we do not intend to use them as

12 evidence at the trial.

13 THE PRESIDING JUDGE: So, it is supposed to make it reciprocal as it

14 relates to 67(A). Under 67 -- 66(A), rather, the Prosecutor has

15 to give statements but the reciprocity, as is reflected in 67,

16 means that the Defence does not have to give statements.

17 MR. WLADIMIROFF: Yes, your Honour, because (C) says very clearly

18 "which it intends to use as evidence at the trial"; as we told

19 you, we do not.

20 THE PRESIDING JUDGE: It sounds to me as if the Rules are there. It

21 is a question of interpreting them.


23 THE PRESIDING JUDGE: If it is privileged, you would say it cannot be

24 used for impeachment purposes. If it is privileged, it is

25 privileged and the Prosecutor nor the Court will have the right

26 to produce it. We have the Rule that you say supports your

27 privilege. It does not seem to me like it is an absence of

28 Rules; it is a question of how we interpret our Rules, if we

Page 6239

1 accept your position. If you say if it is privileged, it is

2 privileged, we do not even get to impeachment.

3 MR. WLADIMIROFF: Yes, and on the basis of the Rules we thought that

4 that privilege was respected because there were limited

5 disclosure Rules and those disclosure Rules presented themselves

6 as exhaustive.

7 If I may, your Honour, let me try to proceed. We have

8 gone lateral through the material. I think the material we have

9 handed to you on the rulings of the European Court of Human

10 Rights may speak for themselves. The Funka case is a leading

11 case on the Continent. I may draw your attention to paragraph

12 41 of that case dealing with the merits of the complaint. The

13 leading opinion you will find in paragraph 44. We have given

14 you the whole decision so you will be able to see it in its own

15 context. When it comes to the bottom line, again that you

16 cannot compel someone to assist the prosecuting party.

17 THE PRESIDING JUDGE: The right not to assist the prosecuting party,

18 is that founded in also Article 21 dealing with

19 self-incrimination? That is the position that you took when the

20 motion was filed pretrial for all of the witness statements, 30

21 days?

22 MR. WLADIMIROFF: That is right, your Honour.

23 THE PRESIDING JUDGE: Yes, 21(iv)(G), "... shall not be compelled to

24 testify against himself or to confess guilt". That is what

25 those decisions stand for?

26 MR. WLADIMIROFF: 21 is almost the same, substantially it is the same

27 as Article 14 of the International Covenant. The leading

28 opinion is that the Covenant is substantially the same as

Page 6240

1 Article 6 of the European Convention, because Article 6, section

2 2, is understood by the European Court as appears from the Funka

3 case in the same way.

4 THE PRESIDING JUDGE: You do not see a difference between the use of

5 witness statements before -- or the Prosecutor acquiring them or

6 having the right to obtain witness statements before a witness

7 testifies and after the witness testifies in terms of the

8 self-incrimination issue, you do not see a difference?

9 MR. WLADIMIROFF: From the principle, I do not see any difference

10 whatsoever. The principle applies before the trial starts and

11 when the trial is ongoing.

12 THE PRESIDING JUDGE: Rule 26.2, I gather, the American rule, which

13 stands out among all of them, which Mr. Niemann says is -- what

14 did he say -- forward thinking or something, I do not know,

15 progressive -- maybe it is retrogressive or whatever -- that

16 rule provides that the witness statements shall be provided by

17 the Defence after the witness testifies. In your judgment, does

18 that violate the right to be free from self-incrimination, that

19 rule?

20 MR. WLADIMIROFF: Yes, because it simply means that the lawyers are

21 no longer working on the sole instruction on his own client; the

22 client is not protected there when the Defence lawyer is not

23 taking the necessary precautions to avoid such violations.

24 Again, if you are aware of such a rule, then the statutory

25 provisions in the United States do not compel a lawyer to break

26 his professional secrecy because he can prepare the case in a

27 different way to avoid that he will have material he will be

28 compelled to produce. It is how the system works, how you

Page 6241

1 should judge it.

2 THE PRESIDING JUDGE: The Nobles case, which considered this very

3 issue, really has two parts to it. In the Nobles case in 1976,

4 the Supreme Court held that it did not violate the right to be

5 free from self-incrimination, that is, the use of this

6 investigators's report. Thereafter, in 19 whenever it was, 77

7 or 78, was when rule 26.2 of the federal criminal procedure was

8 enacted.

9 So, what you had at that time was a decision by the

10 United States Supreme Court finding no violation of

11 self-incrimination before there was a rule in the rules of

12 criminal procedure.

13 MR. WLADIMIROFF: Yes, your Honour, but ----

14 THE PRESIDING JUDGE: But the other issue dealing with waiver,

15 I have already questioned Mr. Niemann about. I think that does

16 not help us much because there the investigator actually made

17 testimonial use of the report. But, as to the secondary holding

18 in Nobles, that is a finding by the Supreme Court before 26.2

19 was enacted. So the lawyers did not have 26.2 to hold up and

20 say, "Oh, this is what we can do".

21 MR. WLADIMIROFF: Might that not be explained, if I can? This is

22 going far beyond what I should do, but I understand that the

23 scope of the Fifth Amendment is not identical to what you will

24 find in Article 6 of the European Convention. That has also, as

25 I see it, much to do with the system of advocates under the

26 European Convention and as the system operates in the United

27 States.

28 That is the reason why I started to explain that under

Page 6242

1 the continental system or, at least, the system which is under

2 the European Court of Human Rights, and I recognise the same in

3 those common law systems that have derived from the English

4 system, that the advocate, the barrister, or the advocate as it

5 is on the Continent, has a different position. The profession

6 functions not identical to the American lawyer.

7 Therefore, it might be explained that the

8 understanding of the Fifth Amendment in relation to how the Bar

9 in the United States functions may have reasoned that decision.

10 I really do not know, but that is my sense, because the

11 instructions under which a barrister works are so different to

12 what an American lawyer can do or should do or should not do.

13 If I only refer, for example, to the Codes of Conduct, they

14 differ so much. That might have reasons why within the limits

15 of the Fifth Amendment they have decided.

16 But whatever may be the reasons, I really cannot

17 explain this to you. I only say that the international standard

18 is that of the International Covenant. Yugoslavia is in

19 Europe. There we have this European Convention. These two

20 guidelines point to a quite different direction, whatever may

21 have been the case in the United States.

22 THE PRESIDING JUDGE: I suppose we will have to check, in 1976

23 I would guess the right to be free from self-incrimination had

24 been pretty well interpreted and probably more rights than exist

25 now, because at that time you had Miranda and all of those

26 rights. Now they have been going back. But in 1976, if I were

27 to guess, it was at its higher point and it started coming

28 down. But, at least in 1976, if we look at Nobles we probably

Page 6243

1 can got some guidance, but I do not know. We are talking

2 about ----

3 MR. WLADIMIROFF: But has there not always been a distinction between

4 the lawyer and the client? I do remember, for example, all the

5 discussions about paying your lawyer which raised a large

6 problem in the United States if the source of that payment was

7 in the context of crimes while, for example, on the Continent

8 and in England we take a different view here.

9 THE PRESIDING JUDGE: What, that you can do that or you cannot?

10 MR. WLADIMIROFF: Under certain conditions, you can be paid indeed.

11 THE PRESIDING JUDGE: In the United States you might lose it.

12 MR. WLADIMIROFF: Again we fear that the lawyer and the client are

13 ultimately one; you cannot simply say, "No one is going to pay

14 me, therefore, you will not have a lawyer".

15 I may draw also your attention, your Honours, to the

16 Niemietz case. There was a complaint about the search of his

17 law office. He claimed that would give rise to a breach of

18 Article 8 of the European Convention. I may draw your attention

19 to paragraph 37 where the European Court held that the search

20 impinged on professional secrecy to an extent that appears

21 disproportionate in the circumstances. It has in this

22 connection to be recalled that where a lawyer is involved, an

23 encroachment on professional secrecy may have repercussions on

24 the proper administration of justice and, hence, the risk

25 guaranteed by Article 6 of the Convention. Again, you see, the

26 link always back to Article 6 and the right not to incriminate

27 yourself in the broadest sense also relating to the lawyer

28 acting on behalf of his client.

Page 6244

1 THE PRESIDING JUDGE: What did they mean when they said

2 "disproportionate in the circumstances"? Are there any

3 circumstances where they can break into a lawyer's office?

4 MR. WLADIMIROFF: Yes, when the lawyer ----

5 THE PRESIDING JUDGE: If there is not evidence of an ongoing crime,

6 is there anything ----

7 MR. WLADIMIROFF: If the lawyer is involved in the crime himself or

8 when those materials are the corpora et instrumenta of the crime

9 itself.

10 THE PRESIDING JUDGE: So they were finding that that was not the case

11 there and that is why it was disproportionate.

12 MR. WLADIMIROFF: It was not clear. The Prosecution has also

13 referred to equality of arms which, I must say, was a very

14 stunning argument. I have never read ever before that the

15 Prosecution is arguing that they are entitled to the same

16 treatment as the Defence is. I think this is a very close

17 reading of what is really at stake here.

18 As far as the Prosecution is referring to the phrase

19 that the accused is entitled to obtain the attendance and

20 examination of witnesses on his behalf, subject to the

21 restriction that this be under the same conditions as witnesses

22 against him, that phrase is so logical if you know about the

23 civil law system, because you have to ask the Prosecution or the

24 Court to call the witness. You cannot call the witnesses

25 yourself. That is the problem.

26 So, if the Prosecution has the right, according to the

27 law, to call for witnesses and you, as the Defence lawyer, have

28 not, you are dependent on a Court order or the co-operation of

Page 6245

1 the Prosecution. Then the Convention says it would be highly

2 unfair, at least in the context of a fair trial, if you were not

3 able to call witnesses under the same conditions as witnesses

4 against you. It makes sense in logic, if you understand the

5 system. But it had nothing to do that if we are able to impeach

6 Prosecution witnesses on material that has been handed over to

7 us that the Prosecution may argue, well, then we have the right

8 to compel the Defence to hand over material to us to impeach

9 their witnesses, absolutely no basis in the Convention

10 whatsoever.

11 THE PRESIDING JUDGE: What was meant, before you leave that, on page

12 175 of the Law and Practice of the European Convention on Human

13 Rights and the European Social Charter, where it said that

14 the ----

15 MR. WLADIMIROFF: Help me again, your Honour, you were referring to

16 -- I see, yes.

17 THE PRESIDING JUDGE: On page 175 it says: "The European Court of

18 Human Rights stated the principle of equality of arms is only

19 one feature of the wider concept of a fair trial which also

20 includes the fundamental right that criminal proceedings should

21 be adversarial. The right to an adversarial trial means in a

22 criminal case that both Prosecution and Defence must be given

23 opportunity to have knowledge of and comment on the observations

24 filed and the evidence adduced by the other party". Then they

25 were challenged. The French -- what system was that ----

26 MR. WLADIMIROFF: Absolutely clear to me because if you read the case

27 law of the European Court on this, what you will see is that,

28 for example, in Austria there were provisions in the law that

Page 6246

1 excluded the defendant from access to certain parts of the

2 file. In France, you will see the same. These cases have been

3 brought to the European Court. They ruled, obviously, that you

4 should have the same access to the file as the Prosecution.

5 There are no cases, none whatsoever since 1950 when

6 this all started, that ever the Prosecution complained that they

7 had no access to the file of the defendant. That is

8 outrageous. That would not be the case. The file is the file

9 of the court. We have the system of a file. There is no file

10 in common law systems. The file of the court is the file made

11 by the investigating Judge or the file handed over by the

12 Prosecution to the Court. Both parties should have the same

13 access to that file and there is no file of the Defence lawyer

14 involved here. It has nothing to do with that.

15 THE PRESIDING JUDGE: The file is what has been collected, but it

16 includes statements and both sides have access to it. In our

17 adversarial common law system, we depend on the lawyers kind of

18 to develop that, except that our Rules have a little taste of

19 the civil law system in that they kind of put the Judge in there

20 to elicit material, but you say it is illicit evidence and

21 statements are not evidence.

22 MR. WLADIMIROFF: No, as long as the Defence lawyer does not present

23 that material as evidence. We do accept within the context of

24 the common law a taste of the Rules of this Tribunal. For

25 example, if we show to a witness a document and we do not tender

26 it, we accept that the other party will say that the Court will

27 have to rule that we will have to tender that, because by

28 showing it to the witness in court we used it in court.

Page 6247

1 THE PRESIDING JUDGE: But we do not have a Rule on that.

2 MR. WLADIMIROFF: No, but in the setting of what is happening here in

3 this Court, we accepted that both parties, where there is no

4 file, have to co-operate in finding what are the facts in this

5 case. That is quite opposite to what the Prosecution is

6 asking. They simply want access to our private file on material

7 we are not going to use.

8 THE PRESIDING JUDGE: Have you completed your presentation? Mr. Kay

9 has a number of questions and then, the Prosecution, do you have

10 rebuttal? I think we had better stand in recess for 20 minutes.

11 MR. WLADIMIROFF: Let me just see, your Honour. I think I have dealt

12 with everything. Yes, I may refer your attention to the

13 Brandstetter case. We have given the decision, so I think it is

14 self-explanatory. That is all I had to say, your Honour.

15 THE PRESIDING JUDGE: We will stand in recess for 20 minutes. Then,

16 Mr. Kay, are you going to present then the common law aspects or

17 do we just ask questions about common law?

18 MR. KAY: Your Honour, yes, if I perhaps give a quick few minutes and

19 then field the questions, that might be the best way?

20 THE PRESIDING JUDGE: We will stand in recess for 20 minutes.

21 (4.04 p.m.)

22 (The Court adjourned for a short time)

23 (4.25 p.m.)

24 THE PRESIDING JUDGE: Mr. Kay, you may be seated. We are waiting for

25 some of our staff. Mr. Kay?

26 MR. KAY: Yes. Your Honour, might I start, first of all, by

27 reminding the Court that in the original motion by the

28 Prosecution in April of this year that they referred in their

Page 6248

1 argument that witnesses may be put on the stand to testify by

2 the Defence and we would be withholding the statement from

3 opposing counsel and the Court.

4 It was very much in the mind of the Prosecution that

5 these statements should be disclosed for impeachment purposes

6 when they filed their motion earlier in the year. In the

7 response filed by us, aware of that use of them, in paragraph G

8 I stated that they would be primarily used as a device of

9 impeachment. The Court may recollect that in oral argument

10 I also referred to that matter.

11 So, when the Court judgment was issued on 7th May,

12 there was no matter in relation to the decision that indicated

13 that statements would eventually be used at this stage of the

14 trial potentially as an impeachment device. So, aware of the

15 arguments, we embarked on the course of preparation of

16 collecting our witnesses together with all the baggage of

17 previous statements collected by lawyers not now on the team.

18 We believed that the judgment we were given on 7th May gave us

19 an absolute position in relation to that disclosure. It had

20 been presented in this way by the Prosecution and denied by the

21 Trial Chamber.

22 We dealt with common law systems, but in the course of

23 today the Malaysian Rules have been supplied to me. I know his

24 Honour Judge Vohrah will be familiar with these. But in section

25 126 of the Evidence Act of 1950 of the laws of Malaysia -- I do

26 not know whether that has been served on the Court just now --

27 it clearly states: "No advocate shall at any time be permitted,

28 unless with his client's express consent, to disclose any

Page 6249

1 communication made to him in the course and for the purpose of

2 his employment as such advocate by or on behalf of his client,

3 or to state the contents or condition of any document with which

4 he has become acquainted in the course and for the purpose of

5 his professional employment, or to disclose any advice given by

6 him to his client in the course and for the purpose of such

7 employment". Then there are the well-known exceptions which are

8 apparent in every jurisdiction, that illegal purposes and crime

9 or fraud will not be so protected.

10 Illustrations are given within Section 126 and Section

11 128 is a section that deals with privilege not being waived by

12 volunteering evidence: "If any party to a suit gives evidence

13 therein at his own instance otherwise, he shall not be deemed to

14 have consented thereby to such disclosure as is mentioned in

15 Section 126; and if any party to a suit or proceeding calls any

16 such advocate as a witness, he shall be deemed to have consented

17 to the disclosure, only if he questions the advocate on matters

18 which but for such question he would not be at liberty to

19 disclose".

20 Then Section 129 deals, in fact, with circumstances

21 when confidential communications may be disclosed: "No one

22 shall be compelled to disclose to the court any confidential

23 communication which has taken place between him and his legal

24 professional adviser unless he offers himself as a witness, in

25 which case he may be compelled to disclose any such

26 communications as may appear to the court to be necessary to be

27 known in order", and here I underline "to explain any evidence

28 which he has given, but no others".

Page 6250

1 So this Statute, in our submission, envisages the

2 concept of legal and client professional privilege, but there

3 may be circumstances when an explanation is required by the

4 Court when that be waived. The kind of circumstance that I am

5 thinking of is if a defendant was to say, "My lawyer advised me

6 not to answer any questions at the police station and that is

7 why I gave no answer". In those circumstances, invoking section

8 129 of the laws of Malaysia, the Court would be entitled to an

9 explanation as to whether that was the advice actually given by

10 the lawyer. It is one that would require an explanation, but

11 the overall umbrella section is that of Section 126.

12 So the position here we say is identical in most,

13 well, in all common law countries, bar the United States of

14 America where they have specifically enacted through their

15 parliament or legislature rules that otherwise vitiate the

16 normal position within common law countries.

17 THE PRESIDING JUDGE: Let me ask you one question then. It seems to

18 me that we have agreed, based on the material that you have

19 given me, that there are two privileges, a communications

20 privilege and a litigation privilege. The litigation privilege

21 is one that protects disclosure of confidential communications

22 between lawyer and client. Then the other one, material

23 collected for litigation which is referred to in the United

24 States, perhaps, as the work-product doctrine, is the one that

25 is unique to common law and it extends to products such as

26 witness statements. This I get from the Australian Evidence

27 discussion as well as Cross & Tapper.

28 MR. KAY: Yes.

Page 6251

1 THE PRESIDING JUDGE: The Malaysian then, 126, clearly deals with the

2 first, the lawyer-client privilege, is that correct?

3 MR. KAY: If we look at the language carefully, "... for the purpose

4 of his employment as such advocate by or on behalf of his

5 client, or to state the contents or condition of any document

6 with which he has become acquainted in the course and for the

7 purpose of his professional employment", we would say that that

8 extends to communications by third parties to the lawyer acting

9 on behalf of the client.

10 THE PRESIDING JUDGE: Even though the rule, I gather, in England and

11 in Australia but to a certain modification is phrased the same

12 way, that they have interpreted two different privileges, one

13 materials collected and the other attorney-client.

14 MR. KAY: It may well be that in the separation of the concepts as a

15 way of dealing with circumstances that may arise for waiver or

16 disclosure, the concepts have been divided. But the essential

17 privilege is that of client-lawyer, and the lawyer being

18 indivisible from the client when he deals with the client as

19 well as third parties. That is the way we look at it and

20 understand it.

21 The Court has been concerned with the Canadian case of

22 Peruta. I must say I read that rather differently and I turn

23 back to the headnote.

24 JUDGE STEPHEN: I am sorry, when you say "differently", differently

25 from what?

26 MR. KAY: Her Honour Judge McDonald, as I understood it, believed

27 that was a set of circumstances that may be more applicable

28 under the American system than under the more limited common law

Page 6252

1 systems.

2 THE PRESIDING JUDGE: No, I think that Judge Stephen and I, from our

3 questions, may have a difference as to what is said, but this is

4 not the American rule ----

5 MR. KAY: No.

6 THE PRESIDING JUDGE: --- at all.

7 MR. KAY: I was listening to the argument and wondered whether your

8 Honour was believing that Canada came closest to the United

9 States in their system.

10 THE PRESIDING JUDGE: No, I do not think so. I think that the

11 Prosecutor cannot get the witness statements. It is just the

12 decision, that portion of it, that talks about access on page 19

13 and page 20.

14 MR. KAY: In a way, that is a practical problem. If the Defence use

15 a document in court through a witness as a memory refreshing

16 document, which I know your Honour referred to, or any other

17 document, they then cannot keep their privilege when they have

18 disclosed it in evidence in that form. It then would become a

19 statement within the proceedings to be used as a tool, as

20 I understand section 10, sub-section 1 and sub-section 2, of the

21 Act in Canada.

22 THE PRESIDING JUDGE: Except that the Defence did not use the witness

23 statements to refresh. The Crown wanted them before the Defence

24 began. The trial Judge said "yes", Appeals said "no" and then

25 there is discussion. We have all read it and we can talk about

26 it. So there was no using of the witness statement for

27 refreshment.

28 MR. KAY: It seems to have been a peculiar case where everything that

Page 6253

1 could have gone wrong did go wrong ----

2 THE PRESIDING JUDGE: That was my comment too.

3 MR. KAY: --- and the heat in the courtroom must have been extreme,

4 but there we are.

5 THE PRESIDING JUDGE: That did bring it closer to home, to the United

6 States, you know. I thought as I read it I was back there.

7 MR. KAY: Yes, we are dealing I think with Quebec here.


9 MR. KAY: I did not say any more.

10 THE PRESIDING JUDGE: No, we have a Judge from Quebec.

11 MR. KAY: But there we are.

12 THE PRESIDING JUDGE: So, anyway, go ahead.

13 MR. KAY: Your Honour, those were the observations I wanted to make

14 on our position which I hope the Court found helpful. If I can

15 deal with any other questions?

16 THE PRESIDING JUDGE: Just a couple of questions, if I may. You gave

17 us Cross & Tapper, 8th edition. Reading it on page 474 it says,

18 last full paragraph, right before "Confidentiality and

19 Waiver": "If a third party is consulted by a legal adviser for

20 the purposes of litigation, perhaps as a potential witness, a

21 question may arise as to the extent to which privilege can be

22 claimed in respect of communications to him. Since there is no

23 property in a witness, the third party is compellable. He is

24 then free to testify, subject to the ordinary operation of legal

25 professional privilege, which will not protects documents

26 submitted to him for expert advice, not otherwise protected. It

27 is dubious how far the old privilege in respect of witness

28 statements can survive the modern practice of requiring

Page 6254

1 disclosure in advance of trial."

2 What does all of that mean? We got it last night and

3 some cases are referred to in the footnote, but I have not

4 pulled them, if I can even find them.

5 MR. KAY: Yes. If the Defence consult a handwriting expert and

6 submit documents to him and he retains possession of copies of

7 the documents, the Prosecution know that you are not going to

8 call him as you have not served him as an expert. They may then

9 go to that witness and use the materials that you still left

10 with the expert as against you. I know, I have been there and

11 I have had it.

12 So, it is something that, in those circumstances,

13 because there is no property in the witness and you have not

14 retained the documents, it may well be the case that they can

15 use that material in relation to their case as against you. If

16 you have submitted specimens of signatures and not taken the

17 copies or the originals back with you, the police could, in

18 those circumstances, use that evidence if they came into their

19 possession. So, it is a rather extreme set of circumstances and

20 one where evidence comes the way of the Prosecution, rather than

21 being part of the formal collection of evidence.

22 THE PRESIDING JUDGE: Is the witness statement yours? If you take a

23 statement from a witness, witness X, could that witness ask for

24 that statement?

25 MR. KAY: He could ask for that statement ----

26 THE PRESIDING JUDGE: He says, "Give me a copy of my statement".

27 MR. KAY: --- and retain possession of it.

28 THE PRESIDING JUDGE: Then what happens if that witness is called by

Page 6255

1 you ----

2 MR. KAY: Yes.

3 THE PRESIDING JUDGE: --- and the Prosecutor wants to cross-examine

4 on a prior, inconsistent statement -- alleged inconsistent

5 statement?

6 MR. KAY: As he would be your own witness and that was your

7 statement, it would not be something that was subject to

8 disclosure. You would say, "That is our material and that is

9 subject to legal professional privilege".

10 THE PRESIDING JUDGE: If he had the statement and he wished to say,

11 "Judges, you know, I wish to impress upon you that this is not

12 an inconsistent statement; I am willing to give you this

13 statement", that is not something the witness could give us?

14 MR. KAY: No. I would call legal professional privilege, unless it

15 was in my interests and was a consistent statement, then I would

16 waive my privilege. But that is our right to waive the

17 privilege.

18 THE PRESIDING JUDGE: In your materials you say that the privilege

19 relies in 70(A) of our Rules.

20 MR. KAY: Yes.

21 THE PRESIDING JUDGE: Is that correct?

22 MR. KAY: Yes.

23 THE PRESIDING JUDGE: Is that a privilege that only the Defence has

24 or does the Prosecutor have that privilege, in your view of Rule

25 70(A)?

26 MR. KAY: Both sides have that privilege, but the difference here is

27 that the Prosecution have to disclose statements to support the

28 indictment. The Prosecution have to disclose statements if they

Page 6256

1 want us to meet a case and be able to deal with a case as part

2 of a continuing trial.

3 If I can just make this observation? We have not

4 received full statements from the Prosecution in relation to all

5 these witnesses. Many witnesses were on short proffers, four or

6 seven lines, and some gave evidence for a day or two and we

7 cross-examined blind. There has not been a full statement given

8 to us for every witness, as would be the system under my

9 jurisdiction where you would disclose and have an orderly list

10 of statements with the content as full as possible of what a

11 witness was proposed to say. There are no procedures within our

12 Rules here that make that explicit.

13 THE PRESIDING JUDGE: That is what the Defence had asked. The

14 Prosecutor had asked, I think, in their pretrial motion as well

15 that if you did not have a statement, that you give a proffer of

16 what the witness would say. Then you said that the statements

17 that you had had been taken in Serbian, then translated into

18 Dutch, then into English ----

19 MR. KAY: Yes.

20 THE PRESIDING JUDGE: --- and they would not really be very helpful

21 because of the interpretation problems.

22 MR. KAY: Yes.

23 THE PRESIDING JUDGE: But they had asked for a proffer also. Anyway,

24 70(A) protects both of them, but because of the burden you would

25 say that it does not protect them as to statements?

26 MR. KAY: There is a necessity for them under the Rules to disclose

27 those statements in support of the indictment. We have not had

28 all those actually. There is outstanding correspondence

Page 6257

1 relating to a number of those witnesses in support of the

2 indictment whose statements we were not given.

3 THE PRESIDING JUDGE: The reciprocal discovery rule that we have,

4 Rule 67(C), do you read that as requiring the Defence to provide

5 witness statements?

6 MR. KAY: No. Those are products, material, to be used in evidence,

7 data, that kind of thing. We always had that in mind, that

8 triggering that you produce all your photographs, you produce

9 all your other documents that you were going to use as evidence

10 which we see as being the key phrase underpinning that, and it

11 being a trigger mechanism permits disclosure and access for us

12 to the Prosecution data in terms of material, measurements,

13 whatever, and would then impose the same trigger disclosure upon

14 us.

15 THE PRESIDING JUDGE: In Canada, this Rule 10, I think, of the

16 Canadian Evidence Act talks about how the statement should be

17 produced and how you should show it to the witness, etc. We do

18 not have a rule like that in our 10 rules of evidence. Do you

19 think that that in any way affects the Defence counsel's right

20 to cross-examine Prosecution witnesses with respect to prior

21 statements?

22 MR. KAY: I think that is a very much a technical procedural matter,

23 how we go about it in the courtroom. When I put previous

24 statements, Mr. Wladimiroff, Miss de Bertodano did the same, we

25 always put that statement before the witness to give them an

26 opportunity to look at it. Just as a matter of observation

27 here, a large number of those statements were not disclosed to

28 us by the Prosecution, but we obtained by access to the German

Page 6258

1 file and the German proceedings. Therefore, they arose in our

2 hands from the proceedings in Germany where statements had been

3 supplied for the Prosecution authorities there, and we used them

4 within these proceedings for the purposes of inconsistency.

5 THE PRESIDING JUDGE: If the Chamber were listening to a witness and

6 perhaps a member of the Chamber were to consider that, one of us

7 or all of us had a question about the witness's veracity and it

8 became apparent that there was a prior statement, you do not

9 believe that the Trial Chamber would have the inherent authority

10 under either 54 or 97 -- I always get 97 and 98 confused,

11 I think it is 98, the power to produce, request product -- 98,

12 do you think that we would then have the power to say to the

13 lawyers: "Look, we have a question about this and we understand

14 there is a prior statement. We would like to have a look at it,

15 not the entire statement but only that portion that deals with

16 the witness's testimony"?

17 MR. KAY: This I believe is phrased for the purpose of producing

18 additional evidence in relation to the proceedings themselves.

19 If the Trial Chamber thought that it was necessary for a doctor

20 to be called by the Defence because we were making assertions of

21 a medical nature, you could order us to back it up with medical

22 opinion. That is why it is connected with your power to summons

23 witnesses and order their attendance. The phrase "additional

24 evidence", in our submission, is far too limited to include that

25 specific document of great interest to the Defence, and

26 ordinarily covered by privilege being the witness statements or

27 proofs of evidence that we have taken.

28 THE PRESIDING JUDGE: I had a question on the South African or at

Page 6259

1 least the portion of the law we were submitted.

2 MR. KAY: If your Honour could give me the annex, which particular

3 annex it is?

4 THE PRESIDING JUDGE: I cannot even find the section.

5 MR. KAY: Annex C from the International Encyclopaedia of Laws.

6 THE PRESIDING JUDGE: Yes, page 164. Of course, this deals with the

7 Prosecution or the Prosecutor, but they refer to a witness

8 statement privilege. It says: "Written statements obtained from

9 the police for possible witnesses are privileged until after the

10 final conclusion of the trial. This is known as witness

11 statement privilege. The privilege belongs to the Prosecutor

12 and he may waive it. In certain circumstances the Prosecutor

13 must abandon the privilege, for example, where the written

14 statement is used to refresh the memory of the Prosecution

15 witness in the witness box. The Prosecutor must also hand the

16 written statement over to the Defence if there is a serious

17 discrepancy between the written statement of the Prosecution

18 witness and his oral testimony." Then 92(K) is cited in the

19 footnote also which I have not looked at, but it appears that

20 there is something called statement privilege and it appears

21 just from looking at this that that is not something that anyone

22 would get. But if there is a serious discrepancy between the

23 written statement and the Prosecution witness there may be a

24 requirement that it is handed over to the Defence. I was

25 wondering why this sentence is in here if it is not

26 automatically always handed over to the Defence?

27 MR. KAY: In fact this is long entrenched. We now have very formal

28 discovery rules as a result of miscarriages of justices

Page 6260

1 involving certain cases in England. In the good old days even

2 before I started practise and when I just started practise there

3 was a great deal of playing cards close to the chest and what

4 you were entitled to get and what you -- although we had a

5 formal system of statements, whether you would actually disclose

6 other material where a witness had said something entirely

7 inconsistent in the old days was open to doubt. That was

8 gradually opened up and improved, so that there was much more

9 improved Prosecution disclosure. There was a rule of conduct

10 that if the advocate, the barrister, conducting the case was

11 aware of a previous inconsistent statement that you would then

12 disclose that as a Prosecutor to the Defence, so that you had

13 done your duty. Whether you got to see everything in the old

14 days was another matter and one probably was not given

15 everything anyway. Again that was applying privilege, even to

16 the State which is a very rare concept.

17 THE PRESIDING JUDGE: Yes, because in 484 it says "statements

18 obtained by the Defence from prospective Defence witnesses are

19 also privileged."

20 MR. KAY: Yes.

21 THE PRESIDING JUDGE: We have whatever this is, six pages, and this

22 is the first time I have read anything about South African law.

23 In any case, it seems to me that both are privileged but then

24 there is something known as this witness statement privilege.

25 Then under (C) which discusses the witness statement privilege

26 it is provided that the Prosecutor must hand the written

27 statement over to the Defence if there is a serious discrepancy

28 between the written statement of the Prosecution witness and his

Page 6261

1 oral testimony. There is no mention anywhere of the Defence.

2 MR. KAY: No.

3 THE PRESIDING JUDGE: It does not say, well, this does not apply to

4 the Defence. I was just asking you. I will check for myself.

5 MR. KAY: It did not apply to the Defence and never has under any

6 system.

7 THE PRESIDING JUDGE: How was that? Under what rule is that?

8 MR. KAY: Again it is this principle of who bears the case, who has

9 to present the evidence.

10 THE PRESIDING JUDGE: Paragraph 481 does not deal with the burden of

11 proof and who has the burden. That perhaps is pretrial. What

12 481 seems to be talking about is at trial if it appears there is

13 a discrepancy, then it has to be produced. Then in 484 it says

14 that the Defence also has this privilege and I see nothing in

15 here to say that this obligation to produce if there is a

16 discrepancy shown applies to the Prosecutor only, because it is

17 entitled "Witness Statement Privilege" but may be so.

18 MR. KAY: I can advise your Honour it does, and that has been the

19 underpinning of all theory developed from England for 100

20 years. It has been the underpinning of the system.

21 THE PRESIDING JUDGE: So then you would agree with Mr. Wladimiroff,

22 I suppose, that Rule 26.2 of the Federal Rules of Criminal

23 Procedure violate the right to be free from self-incrimination?

24 MR. KAY: Yes.

25 THE PRESIDING JUDGE: And it also violates the materials collected or

26 litigation privilege, I gather.

27 MR. KAY: It is interesting that none of the European States who are

28 signatories to the European Convention on Human Rights have

Page 6262

1 undertaken such a system, although it has been in force in

2 America for many years. The nearest we have got to it is a

3 recent Act within Great Britain involving disclosure by the

4 Defence of the issues in the case, not the statements. The

5 Court may remember the arguments that ----


7 MR. KAY: --- we had and Judge Vohrah was interested in the matter and

8 aware of these recent developments. But it is not the witness

9 statement, it is not privileged material. It is merely the

10 issues in the case, whether you are running self-defence,

11 intoxication or whatever.

12 THE PRESIDING JUDGE: I recall you said there was a move towards this

13 more open discovery. If our Rules, though, provide for

14 reciprocal discovery and if our Rules for reciprocal discovery,

15 that is 67(C), include statements, would not that put our whole

16 discussion of this issue in a different frame?

17 MR. KAY: It is interesting in that it is a trigger discovery that

18 event (A) causes event (B). We have never been in that position

19 within this case. We have not triggered discovery under those

20 rules. So that even if they would apply and we were in that

21 position in this case, it has not happened. We have not arrived

22 at that stage.

23 THE PRESIDING JUDGE: I understand, but even in the United States in

24 the Federal Rules of Criminal Procedure there is an obligation

25 on the part of the Defence to trigger this reciprocal

26 discovery. In other words, the Defence has to ask for more than

27 what they would normally get. Then there is a triggering of

28 reciprocal discovery, almost verbatim as our Rules in 67(C).

Page 6263

1 What I am saying is, if that is privileged, if that is

2 privileged, then there is no way for the Rules to require its

3 production even if the duty is only triggered by your asking for

4 information. For example, if 67(C), the reciprocal discovery,

5 were to read, "If you dare to ask for anything under 66(B), then

6 you have to provide communications between your client and

7 yourself", that certainly would not be proper, would it?

8 MR. KAY: No. We have always been conscious of the trigger rule, and

9 no witnesses in cross-examination by us were asked to disclose

10 extra statements or anything like that. One does not know the

11 boundaries, but you do not want to trigger something and put

12 yourself in a bad position. So we have conducted this case very

13 carefully in that regard. Any material that we obtained came

14 from the Prosecution or from our own resources. We deliberately

15 sought not to pull the trigger just in case.

16 THE PRESIDING JUDGE: So if in fact the privilege that the Rules

17 recognise is in 97, the privilege that the Rules recognise is

18 the lawyer-client privilege, in bold type right in the Rules,

19 then certainly it was not the intention, it should not have been

20 the intention, to require that privileged information be

21 produced by 67(C), should it? If it requires statements to be

22 produced, then at least if you assume that the Judges knew what

23 they were doing when they drafted the Rules, then it does not

24 apply to a privilege protected under 97?

25 MR. KAY: It is specifically taking out whatever material there would

26 be within 67(C).

27 THE PRESIDING JUDGE: It is memoranda, reports and any other evidence

28 upon which ----

Page 6264

1 MR. KAY: If we look at this logically, we could not use internal

2 communication as between the client and ourselves. It would be

3 inadmissible material and it would not be material that would

4 fall within 67(C). So it is outside anyway.

5 THE PRESIDING JUDGE: That is why Justice White says in his

6 concurring opinion in Nobles that this kind of rule, this work

7 product rule, is not privileged; it is merely a restriction on

8 discovery, because it is not the kind of thing that you would

9 offer. It is not evidence anyway.

10 MR. KAY: Yes. I think that that is clear under the Rules as we

11 have, as your Honour points out, Rule 97.

12 THE PRESIDING JUDGE: But you say the privilege is in 70(A). OK.

13 MR. KAY: Looking at the status of 70(A) and what it refers to

14 documents, our statements that we have taken, we would say,

15 would fall within that status of reports, memoranda or internal

16 documents.

17 JUDGE STEPHEN: I have one question. It has been said on behalf of

18 the Prosecution that there is waiver of privilege involved in

19 the giving of evidence, and that the giving of evidence by a

20 witness waives the privilege that attaches, in my view anyway,

21 to the witness statement. What do you say as to that?

22 MR. KAY: The two are totally unconnected, in our submission. It is

23 the document that is the subject of the privilege. The witness

24 gives evidence and in giving evidence offers himself for

25 cross-examination. If we were so foolish enough, and I only use

26 this in a general sense, to say, "Have you made a statement to

27 us entirely consistent with what you are telling the Court now",

28 I have done it, I have put it in. But you do not hear, I hope,

Page 6265

1 advocates asking that kind of question. That would be a waiver

2 of privilege on exactly the same lines as the client

3 saying, "Oh, the solicitor told me not to answer any questions

4 to the police", very dangerous if you are introducing questions

5 and getting that information out because you have partially

6 waived privilege. Of course there is this concept as well of

7 partial waiver. It does not go to full waiver, this partial

8 waiver of privilege. It is interesting how all the

9 jurisdictions apply that theory of partialness, rather than

10 blanket waiver once you have gone so far down a particular

11 course of conduct, how important they view the client-lawyer

12 relationship for the efficacy of their business.

13 JUDGE STEPHEN: Thank you.

14 THE PRESIDING JUDGE: Mr. Niemann, do you have anything in reply,

15 rebuttal?

16 MR. NIEMANN: Thank you, your Honour. Yes, very briefly. I just

17 wish to clear up one matter, at least in relation to what

18 documents we have discovered. We have given all the documents

19 that are required to be given under the Rules in relation to

20 supporting material and so forth. Any proffers that were given

21 or proofs of evidence that were given relate to witnesses where

22 there was no statement. We deny there is any matter outstanding

23 where we have any obligation to disclose.

24 Your Honours, the issue of whether the word "evidence"

25 mentioned in Rule 67(C) included statements was raised.

26 Certainly, if the use of the word "evidence" there does not

27 includes statements, then the obligations of the Prosecutor

28 under Rule 68 is vastly reduced in terms of his obligation to

Page 6266

1 disclose, because large amounts of statements have been

2 disclosed in consequence of Rule 68. It would seem that we have

3 interpreted our obligations much more widely than we thought we

4 had to do.

5 In addition to that, your Honours, under Rule 47 there

6 is a reference there also to evidence to provide reasonable

7 grounds, 47(A). It would seem that in a similar vein if

8 evidence does not include statements, then no obligation arises

9 there either.

10 In our submission, your Honour, to apply an

11 interpretation that evidence relates only to something that is

12 given once the witness enters the witness box, is a very narrow

13 interpretation indeed. Your Honours, in our submission, that is

14 simply not the case because there are numerous provisions that

15 one could point which make reference to things which constitute

16 evidence and they are much wider than simply the witness

17 entering the witness box and giving oral testimony.

18 JUDGE STEPHEN: The great pity is that we cannot blame an absent

19 draftsman for any defects in these Rules!

20 MR. NIEMANN: Your Honour, I was not prepared to.

21 JUDGE STEPHEN: Which Judges usually do.

22 THE PRESIDING JUDGE: In some of the materials that were submitted,

23 however, there is reference to statements being evidence under

24 certain circumstances, that is, they are used for impeachment

25 purposes but if it can be demonstrated -- well, let us see,

26 I cannot find the Rule but I thought that I read that there were

27 certain circumstances where the statement itself could then be

28 introduced, so it then would become evidence.

Page 6267

1 MR. NIEMANN: Yes. Your Honours, an example of that may be where it

2 is used to prove an inconsistency against a witness, the

3 document which may otherwise not have been evidence or could be

4 described not as evidence would so become. So it is simply too

5 narrow to refer to evidence as being only that which is admitted

6 as evidence before the Chamber and limited only to that. In my

7 submission, the use of the term "evidence" has a broader

8 interpretation and must be given a broader interpretation.

9 THE PRESIDING JUDGE: I was referring to 1140.8 of the Criminal Law

10 of South Australia where it says: "A prior inconsistent

11 statement proved under Section 29 is not evidence of the truth

12 of the contents of the document but only relates to the credit

13 of the witness." Then it cites cases. "However, the contents

14 of such document may be proved as evidence of its truth under

15 Section 34(C), 45(A) or 45(B) or by any other permissible

16 means. Where a witness who is a party admits making the prior

17 inconsistent statement, that statement becomes evidence of the

18 facts contained in it by virtue of that admission. Where the

19 witness is not a party the contents of the document only become

20 evidence of its truth where he admits them in such a way which

21 its contents become part of his evidence." Anyway, very

22 technical issues of evidence, but it appears that under certain

23 circumstances the statement could be evidence. We are

24 supporting to that rule.

25 MR. NIEMANN: That is our submission. It may or it may not be

26 depending on the circumstances, but it is certainly too narrow

27 simply to say that it only applies once the witness gives

28 evidence. Another matter, your Honours, is that essentially our

Page 6268

1 submission is this, that the full ambit of this whole issue of

2 privilege is catered for in the Rules. It is catered for in

3 Rule 70(A) and it is catered for in Rule 97. They are Rules to

4 which we submit your Honours should return if looking for an

5 interpretation of what is to apply in these circumstances. We

6 urge your Honours that in so doing your Honours apply the

7 principle as is enunciated in paragraph 89(B) in the question of

8 interpretation. At no stage am I saying, in my submission, that

9 the law of the United States should be given preference to any

10 other jurisdiction. All I am saying is that in terms of the

11 most progressive piece of legislation that appears to exist or

12 the most advance system in terms of how the law has developed is

13 that, and we would urge your Honours applying Rule 89(B) ----

14 THE PRESIDING JUDGE: I am one of three Judges. Do you want to pick

15 something else.

16 MR. NIEMANN: I emphasise again, your Honour, that I am not promoting

17 this system because of that. I am merely promoting it because

18 it is the best formulation of the principle and the most advance

19 formulation of the principle.

20 So, if your Honours are to interpret the provisions,

21 interpret the Rules which are specifically provided here and

22 provide the full ambit, in our submission, of the privilege

23 available in applying Rule 89(B), then this is the best indicia

24 your Honours can go to in terms of formulating a principle to

25 apply in the course of cross-examination.

26 THE PRESIDING JUDGE: Thank you, Mr. Niemann. Mr. Kay?

27 MR. KAY: There is just one matter. I know Mr. Niemann is resorting

28 I think now to flattery of the Court in relation to his

Page 6269

1 argument.

2 THE PRESIDING JUDGE: I think he is flattering the wrong person

3 because he is not looking at a group of American Judges. He is

4 looking at a group of three.

5 MR. KAY: Flattery and charm perhaps. Rule 47 is nothing to do with

6 this. This concerns the state of mind of the Prosecutor, that he

7 in his own mind is satisfied there is sufficient evidence

8 because he has researched the case. The operative word in 67(C)

9 is "as" evidence that it is going to be produced in the course

10 of the proceedings and become evidence in the case. The witness

11 statement is not evidence in the case if we do not choose to use

12 it.

13 The Court knows that underpinning all this within

14 these Rules is the obligation to consider the general principles

15 of international law, and this is where I say Mr. Niemann is

16 using flattery because it seems the United States system that he

17 is advancing is actually out of line with all the other systems

18 internationally. It is on a limb, perhaps for particular

19 reasons relating to their jurisdiction and the conduct of cases,

20 but there is underneath all this the obligation on the Court to

21 determine these issues consonant not with national principles or

22 any particular nationality, but principles of general

23 international law. That is what we say we have been working

24 under in relation to this particular matter and the judgment of

25 7th May.

26 THE PRESIDING JUDGE: It is just that if you have indicated that

27 there is a move towards wider open discovery, and it is moving

28 along in England but it is moving, then to the extent that 26.2

Page 6270

1 reflects an opening up of discovery, not discovery but an

2 opening up of material for both sides in the form of allowing

3 for the use of witness statements and the tendering of witness

4 statements once they have testified, then it might be

5 progressive. The Rule in 1978, maybe it was ahead of its time

6 and maybe other countries are moving along slowly, but you are

7 correct, we do not apply the rules of national systems. We will

8 be looking at our Rules, I suppose, to see what there is in our

9 Rules that apply to the positions of the parties.

10 MR. KAY: Yes. We limited ours under our reform saying that it could

11 go no further without breaching those principles, which was when

12 all these matters were discussed under the Royal Commission that

13 I know Judge Vohrah knows about, and that was as far as the

14 progression was able to go.

15 THE PRESIDING JUDGE: Thank you, Mr. Kay. Mr. Niemann?

16 MR. NIEMANN: Nothing further, your Honour.

17 THE PRESIDING JUDGE: We will stand in recess for 10 minutes and then

18 return with the final ruling on this issue.

19 (5.12 p.m.)

20 (The court adjourned for a short time).

21 (5.25 p.m.)

22 R U L I N G.

23 THE PRESIDING JUDGE: On September 19th 1996 the Trial Chamber ruled

24 that the prior statement of Witness W was not privileged and was

25 subject to disclosure to the Prosecutor for impeachment

26 purposes. The Trial Chamber has reconsidered that ruling in the

27 light of the written submissions and oral arguments of counsel.

28 By a vote of two to one, with the Presiding Judge dissenting,

Page 6271

1 the Trial Chamber reverses that ruling and finds that such

2 statements are privileged and not subject to the disclosure of

3 the Prosecutor. A decision shall be issued in due course.

4 So we will continue with Witness W tomorrow in closed

5 session. Very good, 10 o'clock. We are adjourned until that

6 time.

7 (The court adjourned until the following day).