Introduction
On Thursday 5 August 2010, the Special Court for Sierra Leone (SCSL) started hearing evidence from three additional witnesses following the Prosecution’s request to re-open their case in the trial of former Liberian president Charles Taylor. Supermodel Naomi Campbell, Carole White, and Mia Farrow have all testified before the SCSL about an alleged rough diamond given to Campbell by Taylor in South Africa after a dinner hosted by former president Nelson Mandela in 1997.
Charles Taylor, former President of Liberia
Background
On 20th May 2010, the Prosecution filed two motions, requesting to re-open their case by calling additional witnesses and secondly the Court issued a subpoena for Naomi Campbell who had early notified the Prosecution that she did not want to testify before the SCSL.[1] The Prosecution argued that the circumstances surrounding their application are central to their case and that the purported evidence is potentially valuable in establishing their case and this will not prejudice the accused. They further noted that the potential evidence was only made available to them in June 2009 after they had closed their case in February 2009 and having investigated diligently before presenting their case in chief. In the alternative, the prosecution in their application requested that the witnesses are called in rebuttal pursuant to Rule 85 (A)(iii) of The Court’s Rules of Procedure and Evidence (The Rules), which provides that the prosecution can present evidence after their case at the discretion of the Trial Chamber.[2]In a separate motion pursuant to Rule 54, the Prosecution requested that the court issue a subpoena for Naomi Campbell to appear as a witness, as she has stated through her lawyer that she is unwilling to testify.
Model Naomi Campbell
Applicable law and Test for Admissibility of Fresh Evidence
The procedure for presentation of evidence at the SCSL is governed by Rule 85 (A) of The Rules which provides inter alia that parties are entitled to call witnesses and the Chamber can further direct presentation of additional evidence. With regards the re-opening of a case, The Rules do not explicitly provides for it but other International jurisprudence have ordered that Prosecutions can re-open their case in a bid to adduce new evidence that was not available during their case in chief.[3] Thus, the test is of two folds. Firstly, the Prosecution must show that with reasonable diligence, the evidence could not be obtained during the presentation of their case, and that the Chamber must be satisfied that the probative value outweighs the fair trial rights of the accused.
Submissions and Responses
In their submissions, the Prosecution argued that both motions be granted for obvious reasons. Firstly, they maintained that they have exercised due diligence in conducting their investigation before presenting their case and the evidence they sought to elicit from the additional witnesses was not reasonably available during the preparation of their case. Also, it was maintained that during the emergence of this new evidence, two witnesses were willing to testify that Taylor gave rough diamonds as a gift to Campbell. However, Campbell, through her Lawyer informed the Prosecution that she would not consent to be interviewed about the allegation. Regardless the outright rejection, Investigators from the Office of the Prosecutor (OTP) continued to make relentless efforts to get the Supermodel talk to them, all being unfruitful. They argued that a subpoena be issued for Campbell because she is believed to possess material evidence that cannot be elicited without such judicial instruction, and that the evidence they sought would corroborate the evidence of both Farrow and White. With the former alleging that after the dinner in 1997, Campbell told her that she was given diamonds as a gift by some visitors from Taylor, while the latter confirmed that she was present when Taylor promised to send the gift and saw the gift being delivered to Campbell. In balancing the right of the accused with regards procedural fairness, it was maintained that both the move to call additional witnesses and their prospective evidence have been communicated to the defence in a timely manner that will enable them time for adequate preparation.
In an alternative argument, the Prosecution asked that the evidence they sought to elicit be allowed as evidence in rebuttal as a result of an issue arising directly from the defence’s case. They further maintained that this issue was not foreseeable and it could not have been reasonably contemplated in order for it to have formed part of their case. In their submission, it was argued that they were not in the position to know that Taylor would testify that he had never possessed diamonds other than his personal jewelry. Also Taylor has maintained that he was pre-occupied with official governmental responsibilities as opposed to the Prosecution’s claim that he was directing the war in Sierra Leone. This evidence, the Prosecution notes will show that Taylor was engaged in activities which culminated in financing or directing the operations of the AFRC/RUF junta regime in Sierra Leone.
In response, the Defence objected to both motions noting that no reasonable tribunal would consider an anticipated evidence relevant to any of the charges against Taylor and that the Prosecution has not discharged their burden for them to be granted an application to re-open their case as they have failed to establish any peculiar circumstance surrounding their application. They maintained that the Prosecution did not exercise due diligence in their investigations especially with regards Taylor’s alleged possession of diamonds, which the Prosecution has noted forms part of their case. The defence submitted that the anticipated evidence is of little probative value and if allowed will prejudice the fair trial rights of the accused noting that the Chamber had earlier rule to exclude Farrow’s declaration as part of the Prosecution’s strategy to cross-examine Taylor while he was testifying in his own defence.[4] Further, they argued that there can hardly be a nexus between the concluded Prosecution’s case and the anticipated evidence sought by the Prosecution.
With regards the issue of calling the additional 3witnesses in rebuttal, the defence argued that the new evidence sought must have arisen as a direct result of the evidence adduced by the defence and was not in contemplation during the prosecution’s case. Referencing SCSL decision in the AFRC case, the defence maintained that, calling additional witnesses to testify on diamonds is not a new issue arising from the evidence of the defence as the prosecution already has it as an issue and it should have been contemplated. Further, Counsel for Taylor noted the motive of the prosecution in calling additional witnesses to rebut claims made by Taylor will only attempt to challenge Taylor’s credibility and should not be allowed in the interest of justice.
In responding to the motion to subpoena Campbell, Counsel for Taylor argued that the anticipated evidence is of a minimal probative value and can be obtained from the other two witnesses that have already consented to testify and that it will only provide for media coverage as opposed to material evidence relevant for the proceedings. Turning to the Court’s earlier decision to subpoena former president Kabbah in the CDF case, the defence maintained that the prosecution has already noted that Campbell has made a public declaration that she did not receive diamonds from Taylor and that the Chamber should not allow the prosecution to speculate that Campbell will later on be of help. With a word of caution, the defence recalled that the SCSL lacks UN enforcement mandate and some states might not be obliged to enforce subpoena and concluded that there must be finality to mark the end of the prosecution’s case and that evidence has already been adduce with regards Taylor’s alleged possession of diamonds and if such application is granted to call additional witnesses, the evidence sought will only be cumulative which will bring the administration of justice into disrepute.
Replying to the defence’s response, the prosecution submitted that their burden is to show that the evidence is likely to be of importance to their case and that Campbell’s denial might be an impulsive public reaction. Further, she is believed to have received the diamonds and she could be in place to debunk her personal interaction with Taylor. Lastly, the lack of enforcement of court orders should not be a bar for the issuance of a subpoena.
Chamber’s Deliberations
In their deliberations, the Chamber noted that they have considered all written submission made by both parties. With regards reasonable diligence, the Chamber recalled that the prosecution has maintained that information relating to Taylor’s diamond gift to Campbell was only made available in June 2009 long after they have closed their case. The defence on the other hand argued that the prosecution had the responsibility to have investigated the South Africa trip especially when they were anticipating evidence of an arms shipment after the trip, hence they should have investigated the purpose of the visit and the circumstances surrounding this and all other travels. The Chamber notes that such test as prescribed by the defence is unreasonable as the prosecution could not have anticipated that the accused may have given diamonds away.[5] The Chamber accordingly found that the prosecution exercised due diligence in their investigations and information about Taylor’s gift to Campbell, only reached them long after they had closed their case.
On the probative value of the anticipated evidence, the Chamber stated that both the declarations from Farrow and White are of probative value and as such relevant to the prosecution’s case. The judges further noted that this has not been a trial by ambush as the prosecution has given adequate notice and relevant disclosure of materials to the defence. It was also held that the prosecution has assured the court that there will be no substantive delay if allowed to re-open their case and the defence will be allowed to test the new evidence, even if it requires them to apply for additional time and fresh evidence. Accordingly, the Chamber used its discretion to allow the motion in the interest of justice as the need to re-open the prosecution’s case is of a probative value and it does not outweigh the fairness of the proceedings. Hence the alternative motion to call the additional witnesses in rebuttal was not considered.
Conclusion
In recognition of the provisions of Article 17 of the Court’s Statute which provides for the rights of the accused and the applicable law with regards admissibility of fresh evidence, the SCSL after considering written submissions from parties ordered that the Prosecution re-opens their case in the trial of Charles Taylor. The application to re-open the case for the prosecution came as a result of information received by OTP investigators in 2009 that Super model Naomi Campbell received an uncut diamond from Taylor after a dinner party in South Africa hosted by Nelson Mandela.
[1] Taylor, Case No. SCSL-03-01-T-962, “Public with Confidential Annexes A and B Prosecution Motion to Call Three Additional Witnesses,” 20 May 2010 [hereinafter “Additional Witnesses Motion”]; Taylor, Case No. SCSL-03-01-T-961, “Prosecution Motion for the Issuance of a Subpoena to Naomi Campbell,” 20 May 2010 [hereinafter “Subpoena Motion”].
[2] See Rules of Procedure and Evidence
[3] Prosecutor v Brima, Kamara and Kanu, SCSL-04-16-T, “Decision on confidential prosecution Motion to re-open the Prosecution Case to present an additional witness” (28 September 2006) (hereinafter AFRC Re-opening Decision). Prosecutor v Milosevic, IT-02-54-T, “Decision on application for a limited Re-opening of the Bosnia and Kosovo component of the Prosecution case with confidential Annex” 13 December 2005
[4] See Prosecutor v Charles Ghankay Tayor, Trial Transcripts, 14 January 2010, page 101 (line 24)
[5] Taylor, Case No. SCSL-03-01-T-962, “Decision on Public with Confidential Annexes A and B Prosecution Motion to Call Three Additional Witnesses” (29th June 2010)
Last Updated on Wednesday, 22 September 2010 14:52
