31 37 Prosecutor v Galic IT 98 29 AR732 Decision on Interlocutory Appeal

31 37 prosecutor v galic it 98 29 ar732 decision on

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31. 37 Prosecutor v. Galic , IT-98-29-AR73.2, “Decision on Interlocutory Appeal Concerning Rule 92bis(C)”, 7 June 2002, para. 9; see also Prosecutor v. Sesay et al. , SCSL-04-15-T-1049, “Decision on Defence Application for the Admission of the Witness Statement of DIS-129 Under Rule 92bis or, in the Alternative, Under Rule 92ter”, 12 March 2008, pp. 2, 3; see also Case No. SCSL-03-1-T 8 26 March 2020
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15. Thus, Rule 92 bis excludes any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that the accused planned, instigated, ordered, or committed any of the crimes charged, or aided and abetted in the planning, preparation or execution of such crimes, or that the accused was a superior who actually committed the crimes, or knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or failed to take the necessary and reasonable measures to prevent such crimes or to punish the perpetrators thereof. 38 Where the prosecution alleges that the accused participated in a joint criminal enterprise, Rule 92 bis excludes any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that he had participated in that joint criminal enterprise. 39 16. The “conduct” of an accused person necessarily includes his relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that state of mind is not admissible under Rule 92 bis . 40 17. Where the evidence is “so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.” 41 III. DELIBERATIONS 18. Dealing first with the Prosecution application for the documents to be admitted under Rule 89(C), the Trial Chamber finds that the documents must be channelled through a witness competent to give evidence in relation to the documents in order to be admissible under Rule 89(C). 42 The said documents Prosecutor v. Taylor, SCSL-03-1-T, “Decision on Prosecution Notice Under Rule 92bis for the Admission of Evidence Related to Inter Alia Kenema District and on Prosecution Notice Under Rule 92bis for the Admission of the Prior Testimony of TF1-036 Into Evidence”, 15 July 2008, p. 4. 38 Galic , ibid. , para. 10; see also Prosecution’s Second Amended Indictment (“Indictment”), paras 33, 34. 39 Galic, ibid. , para. 10, see also Indictment, para. 33. 40 Galic , ibid. , para. 11. 41 Galic , ibid. , para 13. See also Prosecutor v. Brdanin & Talic , IT-99-36-T, “Confidential Decision on the Admission of Rule 92bis Statements”, 1 May 2002, at para. 14. 42 Appeals Chamber Decision, para. 34. Case No. SCSL-03-1-T 9 26 March 2020
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were tendered in lieu oral testimony and therefore should have been tendered under Rule 92 bis . 43 Accordingly, the Prosecution application pursuant to Rule 89(C) must fail.
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  • Summer '16
  • Ramon Wawire
  • The Land, Evidence law, Liberia, Sierra Leone, The Trial Chamber

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