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PUBLIC Official Transcript Procedural Matters (Open Session) Page 1
1 Special Tribunal for Lebanon
2 In the case of The Prosecutor v. Ayyash, Merhi,
3 Oneissi, and Sabra
4 STL-11-01
5 Presiding Judge David Re, Judge Janet Nosworthy,
6 Judge Micheline Braidy, Judge Walid Akoum, and
7 Judge Nicola Lettieri - [Trial Chamber]
8 Wednesday, 13 December 2017 - [Trial Hearing]
9 [Open Session]
10 --- Upon commencing at 10.10 a.m.
11 THE REGISTRAR: The Special Tribunal for Lebanon is sitting in an
12 open session in the case of the Prosecutor versus Ayyash, Merhi, Oneissi,
13 and Sabra, case number STL-11-01.
14 PRESIDING JUDGE RE: Good morning. We're sitting today to
15 receive as much evidence as possible as remains in the Prosecution case.
16 So let's start with appearances, commencing with the Prosecution.
17 MR. MILNE: Good morning, Your Honours. Alexander Milne on
18 behalf of the Prosecution. I am joined today by my learned friend,
19 Mr. Marc Desalliers, and we are assisted by Ms. Tanja Zekaj.
20 MR. HAYNES: Good morning, Your Honour. Peter Haynes for the
21 participating victims, assisted by Kiat Wei Ng.
22 MR. HANNIS: Good morning, Your Honours. I am Tom Hannis, along
23 with Chad Mair and Jason Antley, representing the interests of
24 Salim Ayyash.
25 MR. AOUINI: [Interpretation] Good morning, Your Honour,
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 2
1 honourable members of the Bench. I am Mohamed Aouini, representing the
2 interest of Mr. Hassan Habib Merhi, and I am assisted today by Mr. Hedi
3 Aouini. Thank you.
4 MR. HASSAN: [Interpretation] Good morning, Your Honour,
5 honourable members of the Bench. I am Yasser Hassan representing the
6 interests of Mr. Oneissi, and I have with me Ms. Natalie von
7 Wistinghausen and Mr. Gyo Suzuki representing Mr. Oneissi as well.
8 Thank you.
9 MR. YOUNG: Your Honours, good morning. My name is David Young,
10 representing the interests of Assad Sabra, and I am assisted today by
11 Mr. Eric Tully. Thank you.
12 PRESIDING JUDGE RE: And I can see that there are also, it
13 appears, three representatives of the Defence Office in the courtroom.
14 Mr. Milne and Mr. Desalliers, you have evidence to present.
15 MR. MILNE: Your Honours, yes. We have a number of statements to
16 be admitted following decisions of the Trial Chamber, and I trust that
17 the Trial Chamber, as have the officers, received a schedule kindly
18 prepared by Ms. Zekaj, which sets out the items and proposes exhibit
19 numbers.
20 PRESIDING JUDGE RE: Yes, thank you.
21 MR. MILNE: Your Honours, the first of the witness statements to
22 be admitted is in respect of person PRH680, and that is the late
23 Colonel Wissam El-Hassan.
24 There are a series of items, and I will, if I may, from time to
25 time pause and invite the formal addition of the exhibit numbers for
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 3
1 those.
2 The statement of Colonel Hassan has been admitted by the Trial
3 Chamber under Rule 158. And with the leave of the Court, I will simply
4 summarize, briefly, the nature of those interviews.
5 The originals are two audio-taped interviews which have been
6 transcribed, and I'm sure that the Trial Chamber will have seen that, in
7 fact, the nature of the transcript is both in English and in Arabic. In
8 brief terms, Colonel El-Hassan was interviewed by representatives of the
9 Office of the Prosecutor in June of 2012. At that time, his role was
10 that of the head of Bureau of Intelligence in the Information Bureau of
11 the ISF.
12 In the autumn of 2005 during the investigation into the
13 assassination of former Prime Minister Hariri, the ISF had discovered
14 that Network 2, as it was then known, comprised of 18 phone numbers, and
15 these were linked with a special subscriber feature called the VIP
16 option.
17 Further investigation indicated a possible link between that
18 phone network and Hezbollah, and therefore as a consequence,
19 Colonel El-Hassan arranged a formal meeting with officials from Hezbollah
20 on the subject of those phones. He described a series of four meetings
21 he attended with the Hezbollah secretary-general, Mr. Hassan Nasrallah,
22 which took place in September and October of 2005.
23 During these meetings, Colonel El-Hassan and Mr. Nasrallah
24 discussed Network 2, or as we now know it the Green Network.
25 Colonel El-Hassan, in meeting with Mr. Nasrallah, provided him with facts
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 4
1 regarding the administration of the Network 2 phones, and specifically
2 the payment of invoices, including the VIP option. And this led to a
3 second and third meeting on the subject.
4 At the third meeting, Mr. Nasrallah confirmed that Network 2 was
5 a Hezbollah network of phones. He explained that Hezbollah used
6 Network 2 to track Mossad agents operating in Lebanon. Mr. Nasrallah
7 provided the names and telephone numbers of the alleged Israeli agents to
8 Colonel El-Hassan.
9 The two interview summaries can please be given exhibit numbers.
10 The first of them has the audio ERN 60263704 to 60263704, with the
11 wording "final read" after it. And could that please become
12 Exhibit P02121.
13 PRESIDING JUDGE RE: Yes, that will be Exhibit P2121. And for
14 completion, the date of that please, Mr. Milne.
15 MR. MILNE: That would have been the 16th of January -- I beg
16 your pardon, I think that was the 17th of January, 2012.
17 PRESIDING JUDGE RE: June, wasn't it?
18 MR. MILNE: June. Slip of the tongue. June 2012.
19 PRESIDING JUDGE RE: There were two, weren't there? There was
20 the 16th and 17th of June.
21 MR. MILNE: Yes, the numbering, in fact, is slightly in reverse
22 because the very similar number, ending 705, is the earlier one of the
23 two. It's simply they got reversed when being numbered. So that which
24 ends 704 is the second one, but could that please be Exhibit P2121. And
25 the exhibit 60263705 to the same number, again (final read), to be P2122.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 5
1 Each of those, accompanied of course by the transcript, if
2 it's --
3 PRESIDING JUDGE RE: Yes, the transcript and audio of the
4 interview of Mr. Wissam El-Hassan, as described, will be Exhibit P2122.
5 And so the transcript was clear, was that for the 16th of June, 2012?
6 MR. MILNE: Yes.
7 That was accompanied by a formal witness acknowledgement. And
8 for completeness, we have included that. That is 60263708. And that,
9 please, to become Exhibit P2123.
10 PRESIDING JUDGE RE: And that is dated the 17th of June, 2012.
11 And that will be Exhibit P2123.
12 MR. MILNE: Now, following the meetings, the ISF analysed the
13 numbers provided by Mr. Nasrallah and found that three of the Network 2
14 phone numbers were very rarely active in the same area as the numbers
15 provided; that is, the target numbers. Mr. El-Hassan, Colonel El-Hassan,
16 retrieved a copy of that analysis of the three telephone numbers
17 allegedly attributed by Hezbollah to Mossad agents, and their co-location
18 with the Network 2 phone numbers, that is, with what we now know to be
19 Green 300 and Green 023.
20 That analysis is -- it has, for clarity, been known as WAH004.
21 Could that please become our Exhibit P02124.
22 PRESIDING JUDGE RE: Yes, that will be Exhibit P2124.
23 MR. MILNE: And finally, we have the certification of the
24 authenticity of that report, which was a separate document. And perhaps
25 that could become Exhibit P2125. And the ERN for that: 60294239 to
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 6
1 60294252.
2 PRESIDING JUDGE RE: All right. That will be Exhibit P2125. And
3 can you please place on the record the ERN for Exhibit P2124.
4 MR. MILNE: Your Honour, yes, I omitted to do so. I apologize.
5 The ERN for that, that is Exhibit P2124, is 60263777 through to 60263779.
6 PRESIDING JUDGE RE: Exhibit P2125, according to the description
7 we have here in your schedule, the two documents are responses to request
8 for assistance the Prosecution sent to the -- I think it would be the
9 Lebanese prosecutor-general, and the responses are from the Lebanese
10 Internal Security Forces.
11 MR. MILNE: And they are intended simply to certify the
12 authenticity of the earlier report, which is 2124.
13 PRESIDING JUDGE RE: What more can you tell us about the report?
14 MR. MILNE: Simply that, Your Honour, that it reflects the
15 analysis done by the ISF at the time, calling into question the use of
16 those particular phones - that is, Green 300 and Green 023 - and giving
17 rise to doubt that they were indeed pursuing Mossad agents at the time.
18 The Prosecution say, of course, they were fulfilling a different
19 role during the period with which we are concerned.
20 JUDGE BRAIDY: So, Mr. Milne, the qualification of "rarely" that
21 you said, it's your qualification?
22 MR. MILNE: Yes, "very rarely" I think was the expression used.
23 Very rarely active in the same area as the numbers provided. We can't
24 exclude the possibility they may have occasionally been in the same area,
25 but they do not appear to have been tracing the numbers or following the
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 7
1 numbers as suggested to Colonel El-Hassan.
2 PRESIDING JUDGE RE: So to put it in plain simple terms: The
3 Lebanese ISF was saying that Hezbollah was using Green 300 and Green 023
4 to surveil Mossad agents?
5 MR. MILNE: Hezbollah was saying that. The ISF were not saying
6 that.
7 PRESIDING JUDGE RE: What were the ISF saying?
8 MR. MILNE: The ISF was saying that there was no sufficient
9 coincidence between the Mossad agents, or the alleged Mossad agents, and
10 these numbers to suggest that the two were moving in any way in sequence.
11 They were not surveilling those numbers is what we say.
12 PRESIDING JUDGE RE: So who was surveilling the Mossad agents,
13 the Lebanese?
14 MR. MILNE: Well, Hezbollah claim that they were. I don't think
15 the Lebanese had any involvement in this, Your Honour. Not as a -- not
16 on an official level, or not on an official level that we are aware of.
17 PRESIDING JUDGE RE: So how can they say the two Green Phones
18 weren't following the Mossad agents then?
19 MR. MILNE: Because they were provided with the numbers by
20 Hezbollah suggested to be Mossad agents and it was suggested that the
21 Green Phones were following those. And on the analysis of the ISF, they
22 were not. It's as simple as that.
23 PRESIDING JUDGE RE: Nothing is ever as simple as that involving
24 Mossad-associated agencies, Mr. Milne.
25 MR. MILNE: The Trial Chamber will be aware that you authorized
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 8
1 the admission of this statement under filing 3371 on the 20th of October
2 this year. Sadly, of course, the reason for that requirement was the
3 assassination of Colonel El-Hassan on the 19th of October, 2012.
4 JUDGE BRAIDY: And, Mr. Milne, when you said "Green Phones." In
5 all the report, there is no indication of colour, because colour coded
6 has been after. So it was Network 2, Network 1, Network 3. And what is
7 your evidence to say that Network 2 is Green or Network 1 is Green?
8 MR. MILNE: Green is only our note of -- our notion for it. The
9 numbers were identified. Instead of using the expression "Network 2," we
10 now use the expression "Green Network" for these particular numbers. But
11 the numbers were identified. The numbers were discussed. So we know
12 they're the same numbers.
13 JUDGE BRAIDY: But the problem in the statement, there is no
14 indication of the numbers. Because it wasn't so clear what are the
15 numbers that they are talking about.
16 MR. MILNE: The numbers were identified to Hezbollah by
17 Colonel El-Hassan. I will -- if you'll allow me, I may return to this
18 topic because I may be able to put the documentation in front of you for
19 this later on. For the moment, we were simply summarizing the interview
20 as such, but I can return to the other documents if you wish later in
21 order to demonstrate the link that we draw.
22 JUDGE BRAIDY: Because it's so important and late
23 Wissam El-Hassan is not here anymore.
24 MR. MILNE: No.
25 PRESIDING JUDGE RE: Yes, we would appreciate that, Mr. Milne.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 9
1 Can you also, before you complete your summary in relation to these
2 exhibits, just elaborate slightly on the relevance and the probative
3 value. The Chamber has already made a decision and it relates to
4 paragraph 49 of the amended consolidated indictment, which alleges the
5 four accused and the late Mr. Mustafa Amine Badreddine were or are
6 supporters of Hezbollah.
7 So can you please connect the decision, the exhibits, and
8 paragraph 49 of the indictment in terms of the relevance and probative
9 value?
10 MR. MILNE: What the Prosecution would submit needs to be kept in
11 sight at all times is that there are four, formerly five, accused on the
12 indictment. Our role is to demonstrate the guilt, we say, of those
13 individuals rather than any other body or any other bodies.
14 Each of them, we say, with varying types of evidence, is tied by
15 their support to Hezbollah. The most obvious of those, of course, being
16 Mustafa Badreddine, lauded after his death as being a military commander
17 of Hezbollah.
18 We say simply this: These accused had access to the facilities
19 and the materiel of Hezbollah, and therefore availed themselves of it.
20 We need not, in our submission, at this stage go further than that. But
21 they were able to make use of Hezbollah facilities, such as telephones,
22 and we would invite you to infer perhaps other facilities as well.
23 PRESIDING JUDGE RE: But you're not going so far as to argue a
24 "but for" causation here?
25 MR. MILNE: I am not arguing a "but for" at this stage,
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 10
1 Your Honour, no. There is "but fors" that could arise, one would
2 suspect. But our focus is only upon the accused, and it is upon the
3 accused that we are concentrating.
4 As far as Hezbollah is concerned, we know this demonstrates, if
5 nothing else, that these were a network, that they operated as a network.
6 Which we have always asserted, in any event. That they were
7 pre-purchased, that they were in place, and designed only to operate as a
8 network.
9 We say that the ones with which we are concerned, and, of course,
10 the ones which we draw your closest attention to are the three Green
11 Phones in the lead-up to the assassination of former Prime Minister
12 Hariri operated as a smaller network. It's quite clear that the other
13 phones all stopped operating, and therefore presumably stopped operating
14 on the orders of somebody. And that that was not coincidence. It was
15 not simply that everybody got bored of using the Green Phones. There was
16 a decision taken that only the three would be operative, and we place, in
17 our submission, those three in the hands of the first two accused and
18 Mr. Badreddine.
19 I hope that assists.
20 PRESIDING JUDGE RE: The former Mr. Badreddine -- or the latter
21 Mr. Badreddine, on the Prosecution's case, and on the evidence we've
22 received, being a senior Hezbollah military commander.
23 MR. MILNE: Yes.
24 PRESIDING JUDGE RE: Thank you, Mr. Milne.
25 MR. MILNE: Your Honour, the next witness summary will be read by
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 11
1 my learned friend in relation to another decision made by the Trial
2 Chamber under Rule 158.
3 JUDGE AKOUM: Mr. Milne, before you continue, you said before,
4 describing the role of Mr. Hassan, that he was the head of Bureau of
5 Intelligence in the Information Bureau. Do you mean "or the Information
6 Bureau"? Because, to my knowledge, the Bureau of Intelligence in the ISF
7 is the same, like the Information Bureau.
8 MR. MILNE: Well, if I've confused the two, then I accept that as
9 my fault. I think we took that, in fact, from his description. But it
10 could be that it became slightly muddled when it was transcribed.
11 JUDGE AKOUM: In line 25, page 3.
12 MR. MILNE: I beg your pardon, to which transcript is Your Honour
13 referring? 705?
14 JUDGE AKOUM: Today's transcript, page 3, line 25.
15 MR. MILNE: I apologize. No, Your Honour, the description that
16 we took was head of bureau of the Bureau of Intelligence. Now, we
17 understood that to be part of the Information Bureau, but perhaps that is
18 not the precise configuration within the ISF, but he described himself as
19 the head of the Bureau of Intelligence.
20 JUDGE AKOUM: So you can say that either the head of the bureau
21 of intelligence or the head of bureau of information, because the bureau
22 of intelligence is the same bureau of -- it's the same.
23 MR. MILNE: I'm grateful for that clarification. Thank you,
24 Your Honour.
25 PRESIDING JUDGE RE: Before you come to that, Mr. Desalliers, I
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 12
1 have a very brief decision admitting Exhibits 4D466 and 4D466.1 into
2 evidence.
3 The decision is: On 18th of October, 2017, the Defence of the
4 accused Mr. Hussein Hassan Oneissi, tendered 17 requests for assistance
5 and four responses from the Lebanese authorities for these requests for
6 assistance during the cross-examination of Prosecution analyst Mr. Andrew
7 Donaldson.
8 The Trial Chamber collectively marked the requests for assistance
9 and four responses as Exhibit 4D466 and marked an index table of these 21
10 documents as Exhibit 4D466.1.
11 The Prosecution did not object. The Chamber postponed the formal
12 admission of the documents for uploading the index table into
13 Legal Workflow, and the four responses to the requests for assistance
14 were still only at that time available in Arabic, and the official
15 translations were still pending. This is at pages 68 and 80 through 83
16 of the transcript of 18th of October, 2017.
17 On the 14th of November, 2017, the Defence of Mr. Oneissi
18 informed the Trial Chamber's senior legal officer that the official
19 translations of the four responses to the requests for assistance were
20 received and uploaded to Legal Workflow. The index table has been
21 prepared and also uploaded.
22 Therefore, the Chamber admits these two documents into evidence.
23 Yes, Mr. Desalliers.
24 MR. DESALLIERS: Yes, Your Honour. The next exhibit to be
25 formally admitted relates to PRH028. The statement of PRH028 was
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 13
1 admitted by the Chamber in a decision dated 8th of December, 2017, in a
2 decision declaring admissible the witness statement and granting
3 protective measures for the witness.
4 PRESIDING JUDGE RE: Mr. Desalliers, what's the title of the
5 decision, please.
6 MR. DESALLIERS: It is "Decision Admitting Witness PRH028's
7 Statement Pursuant to Rule 158 and Granting Provisional Protective
8 Measures."
9 The Prosecution filing in relation to this decision is filing
10 F3124. So the Prosecution queue for F3124 will show two documents: The
11 transcript of the audio interview of the witness that took place on the
12 2nd of June, 2010. The ERN for that interview can be found at
13 60140591_TS_D_AR_EN_02. And the associated material with this interview
14 can be found at ERN 60140590 to 60140605.
15 So this decision declaring the statement admissible, I will read
16 the summary, for the record, of that statement from PRH028.
17 The witness confirms that he knows Salim Jamil Ayyash and
18 explains how he does know him. He also confirms that he knows Hassan
19 Habib Merhi and explains how he does know him. The witness gave the
20 investigators his own telephone number and numbers for members of his
21 family and social circle. The witness described members of Mr. Ayyash's
22 family and social circle.
23 He confirms that Salim Jamil Ayyash used to have a shop in
24 Harouf, which is now closed, and that Salim Jamil Ayyash worked at the
25 Civil Defence in Harouf.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 14
1 The witness is aware that Salim Jamil Ayyash trades in cars and
2 displays some of his cars at a particular showroom. The witness
3 recognized a photograph of Hajj Salim/Salim Jamil Ayyash, whom he last
4 saw two or three years prior to giving his interview in 2010.
5 Your Honours, that completes the summary of that statement, and
6 we would propose a combined exhibit number for the transcription of the
7 interview itself and the accompanying material as P2126.
8 PRESIDING JUDGE RE: The documents, as described, dated the
9 2nd of June, 2010, will be Exhibit P2126 relating to Witness 028.
10 MR. DESALLIERS: Thank you, Your Honour.
11 PRESIDING JUDGE RE: Yes, Mr. Aouini.
12 MR. AOUINI: [Interpretation] Your Honour, thank you very much.
13 During the summary that was read by my colleague from the
14 Prosecution, it was mentioned that PRH028 had met Mr. Merhi. After
15 reviewing the interview and the contents of the interview, we couldn't
16 find anywhere this information was mentioned and how the Prosecution
17 concluded that this witness had actually met Mr. Merhi.
18 Therefore, we would like to ask them for a reference for where
19 this information was mentioned.
20 Thank you, Your Honour.
21 PRESIDING JUDGE RE: Yes, that's a fair request. That will be in
22 Exhibit P2126.
23 Can that please be brought up on the screen, and the Prosecutor
24 will assist you there, Mr. Aouini.
25 MR. DESALLIERS: Your Honour, I don't believe that this statement
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 15
1 can be shown publicly because of the protective measures.
2 PRESIDING JUDGE RE: It's not.
3 MR. DESALLIERS: Oh, I'm sorry. Your Honours, I will try to find
4 the reference requested by my colleague.
5 PRESIDING JUDGE RE: Maybe a word search. You're only looking
6 for one name, aren't you?
7 MR. AOUINI: [Interpretation] Your Honour, in the interview the
8 witness does not mention at all Mr. Merhi, unless the Prosecution has a
9 different opinion and other references that they can indicate to us.
10 Thank you.
11 MR. DESALLIERS: Your Honours, I would suggest to move to the
12 other topic. We'll continue searching and come back to provide the
13 answer as soon as we find it.
14 PRESIDING JUDGE RE: There's no hurry, Mr. Desalliers. We can't
15 get to the next witness statements immediately.
16 Mr. Aouini, did you bring this to the Prosecutor's attention
17 before we came into court?
18 MR. AOUINI: [Interpretation] No, Your Honour. We were unable to
19 do so. But I am sure that in the interview of this witness, he never
20 mentioned at all Mr. Merhi.
21 Your Honour, I also would like to clarify one thing to the
22 Prosecution: The only matter that might be confusing is that the
23 Purple 231 was asked to the witness and he couldn't recognize the number
24 and didn't identify it. But he does not mention at all Mr. Merhi or
25 knowing Mr. Merhi.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 16
1 Thank you, Your Honour.
2 MR. DESALLIERS: Apologies, Your Honour.
3 Yes, the way the summary was built is, I accept, in a rather
4 oblique way, but this was to give the full meaning to the decision
5 granting protective measures for that witness. So that the connection
6 that is made and allows us to understand why -- because I -- what I
7 stated in my summary is that the witness confirmed that he knows, not
8 that he met but that he knows, Mr. Merhi, and explained how he knows him.
9 And that reference in that statement, it is at page 10, line 12,
10 Your Honours. But I couldn't go into those details publicly.
11 MR. AOUINI: [Interpretation] Your Honour, in reality I do not
12 understand what my colleague is trying to say. There is nothing in the
13 witness statement, no information in the interview with that witness that
14 states that he knows Mr. Merhi or met him. Perhaps the Prosecution is
15 referring to the wife, simply. Who is your wife, simply.
16 This is why the Prosecution must use the correct words in the
17 summary. So the witness never identified Mr. Merhi.
18 PRESIDING JUDGE RE: Mr. Aouini, we understand what you're
19 saying. I think, though, that the summary -- you're both right. You're
20 right in the sense of what the interview strictly says, and
21 Mr. Desalliers was right sense in the sense of the reference to a family
22 member of -- a family member.
23 And it's the combination of this interview and other evidence
24 which takes Mr. Desalliers to the point which is in his summary, so the
25 summary is slightly -- slightly -- ever so slightly inaccurate in terms
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 17
1 of what the interview says. But the effect of the evidence, I think
2 you'll concede, Mr. Aouini, that taking that exhibit, P2126, with another
3 exhibit gets you to the point -- or gets us all to the point that
4 Mr. Desalliers has mentioned.
5 I am talking obliquely, but I think you understand what I'm
6 saying.
7 All right. Mr. Desalliers, what's the next one?
8 MR. MILNE: Your Honours, the exhibits to be admitted are a set
9 of six, we would say, graphic designs. They have been described as
10 photographs. And we have a presentation queue. It may assist in the
11 Trial Chamber have that. There's no reason why these cannot be displayed
12 publicly. They range in the Prosecution queue F3347, Prosecution
13 provision of photographs at the invitation of the Trial Chamber. And the
14 range of the photographs, as thus described, is D0114224 through to
15 D0114229.
16 The reason that these are before the Trial Chamber are that these
17 documents --
18 PRESIDING JUDGE RE: Mr. Milne, they can be displayed, I take it?
19 MR. MILNE: Yes, yes. These are graphic designs found on the
20 computer taken from the home address of Ahmad Abu Adass. No particular
21 elements of themselves, save for this: That on the 25th of September
22 this year, the Trial Chamber deemed admissible a document put forward on
23 behalf of the Sabra Defence under Rule 154, that document was a two-page
24 unsigned document simply headed "Summary of the Investigation Reports
25 About the Explosion, Number 418/11," and whoever wrote it made passing
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 18
1 reference to six photographs and expressed an opinion as to possible
2 similarities to buildings at the site of the explosion.
3 However, the filing that was put forward did not include these
4 pictures and the Trial Chamber observed, in your decision, that you would
5 have been assisted by them. The Prosecution, therefore, put these
6 forward under our filing F3347 and under filing F3355. The Trial Chamber
7 deemed them admissible.
8 They are please, collectively, to acquire the exhibit number
9 P02127.
10 I should mention that we put these forward as an extract. In
11 fact, they had previously been admitted as part of a much wider range,
12 and can -- the identical images can be found as a small part of
13 Exhibit P116, which came into existence probably about three years ago.
14 But we felt that these should be linked to the documents that the Trial
15 Chamber had already seen. And, therefore, these are the only documents
16 identified from the computer that could possibly correlate with the
17 description given in that short investigative summary, and there are
18 indeed six of them.
19 PRESIDING JUDGE RE: What's the title and number of the
20 Trial Chamber decision, please.
21 MR. MILNE: If you give me a moment, I will get the actual title
22 before me. It is simply entitled "Decision Admitting Six Photographs
23 into Evidence." It was submitted on 10th of October and approved the
24 following day. But that is the filing F3355, to which I made earlier
25 reference.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 19
1 PRESIDING JUDGE RE: Thank you. So this is an extract of
2 Exhibit P116.
3 Mr. Young, you can't object to this as an extract?
4 MR. YOUNG: No.
5 PRESIDING JUDGE RE: The photographs D0114224 to D0114229 will be
6 Exhibit P2127.
7 The next statements you have for admission, Mr. Milne, are those
8 from Witness 56. The slight complication is that the decision hasn't yet
9 been filed but will be. So if we admit them now, we'd have to change the
10 decision to say that it is the reasons for admitting the documents. I
11 prefer not to do that and complicate things further, so we'll come back
12 to those a little bit later.
13 MR. MILNE: Your Honour, the only further complicating factor,
14 and I don't seek to throw any obstacles in the way of the Trial Chamber,
15 is simply that we have suggested five numbers for those. If we can
16 simply move onto the following numbers and keep those. Now, what we will
17 be asking, assuming we are successful, of course, is five numbers between
18 Exhibit P2128 through to P2132 be granted to those five statements.
19 PRESIDING JUDGE RE: Yes, we will certainly do that. But it may
20 be a convenient moment for the Legal Representatives of Victims.
21 Are you ready, Mr. Haynes?
22 MR. HAYNES: Certainly, I can occupy a little of your time if you
23 want.
24 Today I think we can complete the evidence to be submitted on
25 behalf of the participating victims by reference to your two decisions,
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 20
1 that's F3456 and one earlier this morning, F3476.
2 F3476 is the decision by which you have recorded in the cases of
3 Salim Ayyash and Hassan Sabra, that they do not contest a series of facts
4 proposed by the participating victims as being reflective of their
5 relationship to deceased victims and their relevant suffering.
6 3456 is, of course, the decision admitting into evidence the
7 documents underpinning those facts. The total number of documents
8 thereby admitted - and this is by reference to Annex A to F3286 filed on
9 the 21st of August, 2006; and Annex B, filed the same day - is 226. Of
10 those 226 documents, 42 are already in evidence. And by reference to
11 your decision 3456, six which were objected to will not be admitted into
12 evidence.
13 Therefore, the total number of documents admitted in the
14 composite document, which will become 1V0045, is 178.
15 There is a slight technical problem in that we still need to
16 excise from the composite documents the six that you have declined to
17 admit, but we are hopeful that can be done during the course of the day
18 and the ERN numbers adjusted accordingly.
19 Can I just briefly summarize the documents that form the
20 composite exhibit 1V0045. 99 of them are identification certificates,
21 passports, and family personal extracts. Three are press clippings. 56
22 are medical documents. Eight are photographs. 19 are death
23 certificates. And 41 are miscellaneous statements.
24 And what I propose to do for the public summary is simply to take
25 some examples of those documents. There are two presentation queues:
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 21
1 PQ 1 is the confidential queue, and PQ 2 the public queue. If we can use
2 the public queue, I will simply give page numbers of both the Arabic and
3 English. And we'll start with the first category of documents; that's
4 identifications and passports.
5 If we go to PQ 2 and put on the screen the documents which is
6 between pages 53 and 54 in Arabic and 55 and 56 in English.
7 Thank you very much. I think that will do. This document is the
8 identity card of Victim 1, Robert Aoun, who you might remember gave
9 evidence before you in person. And it underpins the uncontested fact
10 number 2, that Victim 1 is Robert Aoun, born on the 26th of March, 1967,
11 in Thoum, Batroun District, Lebanon. He currently resides at the same
12 address and he is the brother of the deceased, Joseph Aoun.
13 I hope, with a little less difficulty, we might now be able to
14 move to the document which is at pages 71 to 72 in Arabic and 73 to 74 in
15 English. Although, I think the file size might be the difficulty.
16 This is the --
17 PRESIDING JUDGE RE: The public versions you're displaying,
18 Mr. Haynes, are they the ones we are putting on the screen?
19 MR. HAYNES: Yes. This is the identity card of
20 Ghina Mneimneh Ghalayini born on February 1954 in Lebanon. You might
21 remember her daughter was the first witness who gave evidence as part of
22 the victims' case, and this document underpins uncontested fact number 5.
23 Can we move on, please, to the document at page 342 in Arabic and
24 343 to 344 in English. This is the identity card of Victim 18,
25 Rachid Hammoud, was who born on July 1963 in Lebanon, and that is
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 22
1 uncontested fact 59.
2 Moving on swiftly, please, to pages 357 to 358 in Arabic and 359
3 to 360 English. We'll see the identity card of Nabih Mhanna who was born
4 on the 28th of February in 1957 in El-Dammour in Lebanon, and that's
5 reflected in uncontested fact 68.
6 And the last from this category of examples of these documents is
7 at page 458 and is the passport copy of Mahmoud Wazzan, showing that he
8 was born in 1962 in Beirut, which is recorded in uncontested fact 94.
9 The next category of documents which we will introduce by example
10 are the family personal extracts that relate to a number of the
11 participating victims.
12 Can we start, please, by looking at the document at page 602 in
13 Arabic and page 603 in English. This is the family personal status
14 extract of the Darwich family. It shows the relationship of
15 Saadeddine Darwich, Sahar Kalaoui, Abdel-Qader Darwich, and
16 Nivine Darwich to the deceased person Mohammed Darwich. And their
17 relationships to him are all set out at the uncontested facts numbered
18 127, 134, and 135. There is an unfortunate error in agreed fact 134 in
19 that the geographical knowledge of the Legal Representatives of Victims
20 was tested by recording that Damascus was in Lebanon when, in fact, of
21 course, it should say Damascus in Syria. But I state that for the
22 record, that there is that mistake in uncontested fact 134.
23 PRESIDING JUDGE RE: Mr. Haynes, I'm looking at 134. It refers
24 to someone being born in Beirut, Lebanon. Are you looking at the same
25 version?
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 23
1 MR. HAYNES: It's that the numbering changed from our proposed
2 facts to those which were recorded as uncontested. I can, very swiftly,
3 I think, tell you what the number is in the facts --
4 PRESIDING JUDGE RE: Oh, yes.
5 MR. HAYNES: -- that you were --
6 PRESIDING JUDGE RE: It's 138.
7 MR. HAYNES: Thank you.
8 PRESIDING JUDGE RE: That went through the Trial Chamber as well.
9 It's not just you. And the Defence. Oh, dear. We'll have to correct
10 that.
11 MR. HAYNES: We will. Moving on, can we look at the document at
12 page 657 in Arabic and 658 in English. This is the family personal
13 status extract of the Tarraf family, and it demonstrates that V045
14 and 046 are the siblings of the deceased Ziad Tarraf, and those facts are
15 recorded in the uncontested facts at 142, 143, and 144.
16 We can move onto the last of the examples of the family personal
17 status extracts by looking at pages 691 and 692 of the presentation
18 queue. This document is the family personal status extract of the Nasser
19 family, and it shows the relationships of V049, V050, V052, and V053 with
20 the deceased Talal Nasser. And those are uncontested facts 154, 156,
21 158, and 159.
22 Next, I would just like to introduce to you some press clippings.
23 They relate at the evidence of Lana Ghalayini, which you will recall.
24 And the first of those is at page 82 in Arabic and the pages 83 to 86 in
25 English.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 24
1 This is a press clipping entitled "A sit-in at the crime scene
2 urging officials to remove the rubble off of Ghalayini." V003 and V004
3 are depicted in the press clipping, and that is uncontested fact 8. It's
4 a press clipping from a publication called Al-Liwaa and it is written by
5 a Salam Nassereddine, and this is dated the 2nd of March. Of note, the
6 Merhi Defence, of course, objected to the admission of this document, but
7 the Trial Chamber held in decision 3456 that the photographs depicted in
8 the press clipping corroborate V04's testimony and admitted this as part
9 of the composite document.
10 The next record of documents I'd just like to illustrate by
11 example are medical documents, and we can start by looking at the example
12 at pages 200 to 201 in English and 202 to 205 in Arabic, an American
13 University emergency unit report.
14 This document shows that V010 was admitted to the emergency unit
15 at the American University of Beirut Medical Centre on the 14th of
16 February, 2005. Due to the explosion, she suffered from lacerations to
17 her scalp, facial bruises, and hypertension. She received 25 sutures to
18 her laceration. And that matter or those facts are recorded as
19 uncontested fact 30.
20 If we could move on, please, to the document at page 308 to 309
21 in English, 310 to 312 in Arabic, another admission note from the
22 American University of Beirut Medical Centre.
23 This is an admission note for V014 dated the 14th of February.
24 Due to the explosion of the 14th of February, 2005, V014 was injured and
25 admitted to the emergency unit at the American University of Beirut
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 25
1 Medical Centre, where he was treated. And that is reflected in
2 uncontested fact 47.
3 If we could move on, please, to the document at pages 346 to 347
4 in English, 348 to 350 in Arabic.
5 This document is the basis for uncontested fact 63. It relates
6 to V018 who was admitted to the American University of Beirut Medical
7 Centre on the 14th of February, 2005, due to injuries sustained from the
8 explosion. His attending physician was Dr. Rachid Haidar. V018 lost
9 consciousness and suffered from forearm burns and multiple lacerations
10 over his cheek and left thigh. In addition, he had a fracture in his
11 left leg, secondary burns on his right leg, and the vision in his right
12 eye was blurred. A CT scan of V018's brain and skull showed that there
13 was a nasal septal deviation to the right, foreign bodies at the level of
14 soft tissue of the right external ear, and in the subcutaneous tissues of
15 the head. There was also diffuse subcutaneous soft tissue swelling
16 mainly in the right anterior aspect of the neck. He was discharged on
17 the 8th of March, 2005.
18 Moving on to pages 373 to 374 in English, 375 to 377 in Arabic.
19 This document underpins uncontested fact 70. V019 was admitted to the
20 emergency unit at the American University of Beirut Medical Centre on the
21 14th of February at 1500 hours. His attending physician was
22 Dr. Jamali Faek and Dr. Karam Salim Karam. Due to the explosion, he
23 suffered from lacerations to his right hand and he was discharged at 1600
24 hours the same day.
25 Moving on to the document at pages 653 to 654 at the presentation
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 26
1 queue in English, and 655 to 656 in Arabic. This is a medical note from
2 the neurology unit and relates to victim V043, and reflects uncontested
3 fact 141, that V043 suffers from depression and was still suffering from
4 depression as of the 26th of October, 2011.
5 A similar note is to be found at pages 714 in English and 715 in
6 Arabic relating to Victim V053, Siham Harb.
7 This is a document dated the 27th of October, 2011, issued by a
8 neurologist named Dr. Abdul-Rahmen Chatila, and the document proves that
9 V053 suffered from and was being treated for chronic depression at that
10 point in time.
11 The last of the medical notes I want to show you is that at page
12 880 in English and 881 in Arabic. This document relates to Rabih Nohra,
13 Victim 80. It's a medical report dated the 26th of February, 2014, and
14 provides that due to the 14th of February, 2005, explosion V080 suffered
15 from injuries to his face and around his eyes. In addition, the
16 explosion left permanent scars on his face.
17 That's the last of the medical documents I want to show you by
18 example.
19 The next category of documents are the photographs. And if we
20 can look at the document at page 345, please.
21 This document relates to Victim V018, Rachid Hammoud, and it's a
22 photograph of him after the explosion. It shows his face, hands, and
23 shirt covered in blood and him being assisted by two men. And that is
24 reflected in uncontested fact 62.
25 A different version of this photograph is already in evidence.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 27
1 It is P00100 at page 17, and it's an extract of a document at ERN
2 D0184545, entitled "Photographs of the Hariri Explosion taken by
3 Ahmed Azakir provided in the statement of Ahmed Nabil Ismail, tendered by
4 PRH053."
5 The very last document I am going to show you by example is one
6 of the miscellaneous documents, and it's page 466 in English and page 465
7 in Arabic.
8 This is a Poly Service rental contract confirmation, and it
9 relates to Mahmoud Wazzan, V029, and it underpins uncontested fact 96,
10 which states that he had to vacate his commercial premises in the Starco
11 building due to damage caused as a result of the 14th of February
12 explosion.
13 Those are all of the documents I'm going to show you examples of.
14 At some point fairly shortly later in the day we will have a
15 reconstructed version of the composite list of 178 documents, which we
16 will ask you to admit into evidence as 1V005. I am confident that will
17 be done very shortly, but that's all I propose to say now.
18 PRESIDING JUDGE RE: Why can't we admit it now and you resubmit
19 the document later?
20 MR. HAYNES: No reason at all.
21 PRESIDING JUDGE RE: All right. The 178 documents, with an ERN
22 that Mr. Haynes will remind us about in a moment, will be 1V005.
23 MR. HAYNES: [Microphone not activated]
24 PRESIDING JUDGE RE: Mr. Haynes, you just said a moment ago it
25 was 1V45?
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 28
1 MR. HAYNES: Yes. And the ERN range will be V000E015.
2 PRESIDING JUDGE RE: Yes, that's 1V45.
3 Mr. Milne, we've got the statements of Witness 56, the witness
4 statement of Ms. Kei Kamei, and a call sequence table. Then there is
5 another one. I'm not sure about the witness's pseudonym, with proposed
6 exhibit numbers P2135, 2136, and 2137. We've also got summaries for
7 Witness PRH088. Summaries for Witness 103, that's Mr. Ziad Ramadan. Are
8 there any others?
9 MR. MILNE: Your Honour, those are the ones we anticipate dealing
10 with. I think, in fact, there is an element there of duplication,
11 because the items under filing F3425 do relate to PRH088.
12 PRESIDING JUDGE RE: All right. We'll come to those.
13 Just to plan what else we have to do today, Mr. Hannis or
14 Mr. Mair, you have some -- five, Mr. Hannis, you're indicating, five
15 exhibits for admission.
16 MR. MAIR: Good morning, Your Honours. Yes, we sent an e-mail
17 last night with five documents. In our preparation and double-checking,
18 we identified an issue with one of those, the first one on our list, C1,
19 which has caused us to do some additional internal investigation, so I
20 would request that we defer that one until we can complete that
21 investigation. But the other four, I'm happy to address at any point in
22 time. And I don't believe it will take very long.
23 PRESIDING JUDGE RE: Mr. Young, you have a few, don't you?
24 MR. YOUNG: Your Honour, yes, we do. Ms. Bafadhel will be
25 dealing with these, and I'm sure she'll be down for the next session.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 29
1 PRESIDING JUDGE RE: There aren't any from the Merhi Defence or
2 Oneissi Defence, are there? No. Okay.
3 The Chamber has --
4 MR. AOUINI: [Interpretation] Your Honour, we have some documents
5 that were MFI'd and we would like to submit them to be given full exhibit
6 numbers. It related to two call sequence tables. They were given MFI
7 numbers, and we would like to submit them to be given full exhibit
8 numbers. Thank you, Your Honour.
9 PRESIDING JUDGE RE: Of course. Yes, thank you. That's from our
10 decision F3463 for Exhibits 3D431, -433, -436, and -437. The Ayyash
11 Defence one was 1D433. Okay. We'll come to that after the break.
12 All right. That's a suitable time. And we'll update the parties
13 afterwards whether we have the decision on Witness 56 filed.
14 Yes, Mr. Aouini. There is more?
15 MR. AOUINI: [Interpretation] Thank you, Your Honour. I had
16 requested to take the floor today. Would it be possible to give me some
17 time, because I have a small intervention to make. It would be
18 preferable to be able to do it after the break, if I may, Your Honour.
19 Thank you.
20 PRESIDING JUDGE RE: Well, yes, you certainly won't be doing it
21 before the break. I can assure you of that.
22 So we'll take a break now and resume shortly.
23 --- Recess taken at 11.40 a.m.
24 --- On resuming at 12.14 p.m.
25 PRESIDING JUDGE RE: Mr. Haynes, that annex of non-contested
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 30
1 facts which stated that Damascus was in Lebanon. I've asked our legal
2 officer to coordinate with your team, and we're re-proofreading, very
3 carefully, every fact, because I don't want to have to file one
4 correction and then have to file another one. So when everyone is
5 satisfied that we have got it completely correct - and there are 178
6 facts - we'll file a corrected version. So thank you for that.
7 And I note Ms. Bafadhel has replaced Mr. Young for Mr. Sabra, and
8 Mr. Hassan has departed.
9 Yes, Mr. Haynes.
10 MR. HAYNES: I just wanted to mention something else in that
11 regard. It is far simpler in terms of recreating the composite document
12 to leave pages blank where documents have been excised so that the ERN
13 range runs consistently, and so that is what we will do, if it causes no
14 objection.
15 PRESIDING JUDGE RE: Yes, that works. We would, of course,
16 prefer a white page blanked to a black page inked.
17 Mr. Mair, what have you got for us?
18 MR. MAIR: Thank you, Your Honour.
19 If I could, in fact, begin by addressing Your Honours on
20 Exhibit C1 MFI and ask for some guidance as to how to proceed.
21 As Your Honours will recall, C1 is linked to the evidence of
22 Witnesses PRH041, who has protective measures, and also PRH082. In the
23 statements of both of those witnesses, they were shown a series of
24 photographs which were not annexed to the statement, and when the
25 Prosecution tendered the statement into evidence, they did not include
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 31
1 the photographs.
2 In your decision admitting the statements, which is F1869, the
3 "Decision on Prosecution Motion to Admit the Statements of
4 Witnesses PRH082, 041, and PRH459 and to amend the Rule 91 Exhibit List,"
5 at paragraph 11, Your Honours agreed that the photographs should be
6 admitted into evidence with the statements and will accordingly treat
7 them as if they were attachments to the two witness statements.
8 It may facilitate matters if Exhibit P482 is brought onto the
9 screen. This is the statement of PRH041, so I would just request
10 caution, as that witness has protective measures. And paragraph 28 is
11 the list of photographs that the witness was shown.
12 As I understand matters, the Prosecution have disclosed to us
13 four sets of photographs of individuals. The photographs shown to the
14 two witnesses were drawn from these four sets, and we can see that the
15 numbers listed there in non-sequential order. The document currently
16 marked C1 is the first set of photographs -- or one set of photographs
17 disclosed to us by the Prosecution.
18 The statement itself does not refer to the entirety of the set
19 that Your Honours have before you now as C1. However, the four sets of
20 photographs are not before you.
21 In our searches, we were not able to find a composite set of the
22 extracted photographs that were shown to the witness, but it appears that
23 they were extracted from the various sets of photographs.
24 The point that we wish to make is that the witness was shown the
25 first photograph in C1 and did not recognize that individual. So we are
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 32
1 content, Your Honour, that photograph is before you as C1, but we also
2 understand that if C1 is there, that that is not a full representation of
3 what the witness saw -- the two witnesses saw during their interviews.
4 So I wanted the record to be clear in that regard and ask for
5 guidance as to how to proceed. But as I understood Your Honours'
6 decision, there was no dispute over whether Exhibit C1 would become an
7 exhibit in this trial. The question at the time was whether it received
8 a Prosecution exhibit or a Defence exhibit. And as the witness was here
9 at the time and we did not wish to delay any further, it was given a C
10 exhibit and we moved on and have not returned to it yet. Thank you.
11 PRESIDING JUDGE RE: The relevance and probative value is not
12 recognizing the person in the first photograph at 60098038, which is a
13 photograph of Mr. Ayyash from those publicized by the Prosecution in the
14 publication of the indictment. The evidentiary value for the Defence is
15 the witness not recognizing that. The other photographs you say are
16 irrelevant for Defence purposes. Have I got that correct?
17 MR. MAIR: Yes, Your Honour. That is correct.
18 PRESIDING JUDGE RE: Does the Prosecution have anything to say
19 about admitting into evidence the photograph of Mr. Ayyash for the
20 purposes of connecting it with the witness not recognizing that
21 photograph and not admitting the others?
22 MR. MILNE: Your Honour, we have no objection and we had no
23 objection at the time. I think we didn't feel it was a Prosecution
24 exhibit because we weren't relying on it, but it's perfectly proper for
25 my learned friend to rely upon it and for it to acquire an exhibit
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 33
1 number.
2 PRESIDING JUDGE RE: Okay. Mr. Mair, can you give me some
3 description which links it to the witness statement? And it will be
4 1D468.
5 MR. MAIR: Is Your Honour asking about the title and the ERN
6 range for the entire document currently marked as C1 or as the image with
7 the ERN 60098038, which is an image of Mr. Ayyash extracted from a larger
8 set of images?
9 PRESIDING JUDGE RE: Yes, and can you please link it to the
10 exhibit number of the witness statement and the decision admitting it.
11 MR. MAIR: The exhibits -- the witness statements are P482, which
12 is the witness statement of PRH041, paragraph 28; and Exhibit P462, which
13 is the witness statement of PRH082. I don't have the paragraph number to
14 hand but I'm sure we could find that. And the decision dated 27 February
15 2015, F1869, is the "Decision on Prosecution Motion to Admit the
16 Statements of Witnesses PRH082, PRH041, and PRH459, and to Amend the
17 Rule 91 Exhibit List."
18 PRESIDING JUDGE RE: Yes, thank you.
19 [Trial Chamber and Legal Officer confer]
20 PRESIDING JUDGE RE: The others, 1D304, 1D452, -453, and -454,
21 are all marked for identification. Some of them are the subject of a
22 decision in which the Chamber, I think, basically ordered that they be
23 admitted into evidence.
24 MR. MAIR: If I could first add to my previous submission, it's
25 paragraph 46 of P462, before we get too far away on the transcript.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 34
1 Turning to Your Honour's question, yes, Exhibit 1D453 was the
2 subject of Your Honours' recent decision. The other two exhibits, 1D452
3 and 1D454, flow from that document. And I understand that, and the
4 Prosecution will correct me if I'm wrong, their position was those two
5 documents could not be admitted until the underlying evidence was
6 admitted, but I don't know that they have raised any specific objections
7 to those two documents.
8 For 1D453, it has been modified and we have a new version that is
9 currently on our presentation queue that I would ask the new version
10 receive the Defence -- the full exhibit number, 1D453.
11 PRESIDING JUDGE RE: What's the modification, Mr. Mair?
12 MR. MAIR: Your Honours ordered us to change a number of the
13 headings of the call sequence table and to replace certain values that
14 were alphanumeric values that had been changed to 0 to revert back to the
15 original alphanumeric values. So we made those changes and we updated
16 the CST. It's in our presentation queue for Mr. Donaldson at number 381
17 in the queue, and it has a new ERN of 1DT1-0893 to 1DT1-0905.
18 PRESIDING JUDGE RE: Yes, it's coming back to me. This was the
19 call sequence table that you showed to Mr. Donaldson during his
20 cross-examination on the 6th of October, 2017, and the Chamber's decision
21 of 7th of December, 2017, F3463, "Decision admitting Into Evidence Call
22 Sequence Tables Tendered by the Ayyash and Merhi Defence, Exhibits 1D453,
23 3D431, 3D433, 3D436, and 3D437 Marked for Identification." Consequently,
24 1D453 marked for identification will be admitted into evidence.
25 Yes, next.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 35
1 MR. MAIR: I would request that 1D452, which is a PowerPoint
2 entitled "Accident Scene Phone Activity, 20 to 21 November 2004," which
3 was also shown to Mr. Donaldson and which is based upon the call sequence
4 table you just admitted as 1D453, have its MFI removed as well, please.
5 PRESIDING JUDGE RE: Just one moment so we can refamiliarize
6 ourselves with this particular exhibit. Is it the same for 1D452 or is
7 that different?
8 MR. MAIR: If I misspoke a moment ago, I was just referring to
9 1D452. The request would also apply to 1D454, which was a series of
10 charts entitled "Common Usage and Co-location Analysis." This is the CST
11 currently marked for identification. This is not the modified version
12 that we're asking for the exhibit number now.
13 PRESIDING JUDGE RE: Can any of these be displayed?
14 MR. MAIR: I believe it's just page 2 that was not for broadcast,
15 as it had some confidential information on it. The rest can, Your
16 Honour.
17 PRESIDING JUDGE RE: Those three documents - 1D452, 1D453, and
18 1D454 marked for identification - will be received into evidence.
19 Did you want to say something about this, Mr. Desalliers? Should
20 I have asked you before I said that?
21 MR. DESALLIERS: You haven't, Your Honour. Thank you for asking.
22 Simply a clarification, Your Honour, because 453 was the CST prepared by
23 the Ayyash Defence, in Exhibits 452 and 454, PowerPoints prepared by the
24 Ayyash Defence. So the Prosecution doesn't have an objection for their
25 admission into evidence, but with, of course, the reservation that these
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 36
1 would be for demonstrative purposes only. So 452 and 454, in our view,
2 could only be admitted for demonstrative purposes.
3 PRESIDING JUDGE RE: Did you have any other intention of how the
4 Trial Chamber could use them, Mr. Mair?
5 MR. MAIR: I believe that that was the language used when they
6 were tendered. They were tendered as demonstrative evidence. Our
7 position has not changed.
8 PRESIDING JUDGE RE: Great. We have agreement between the
9 Prosecution and Defence on that one.
10 Yes, Mr. Mair, any others?
11 MR. MAIR: One last document, Your Honour, is 1D304 MFI, which is
12 a response to a request for information on all telephone traffic and
13 telephone subscribers in the possession of Ogero for the period of 1
14 September 2004 to 31 December 2005.
15 This document was tendered during the cross-examination of PRH711
16 and also shown to PRH709 and PRH713. At the time it was tendered, the
17 Prosecution said it did not object as it was of limited value, because
18 the Prosecution did not rely upon the RFA response. I did not push for
19 its full admission at the time of tender because I was planning to show
20 it to the subsequent witnesses and I inadvertently forgot to tender it
21 following their testimony.
22 It's additionally relevant to the two Ogero-based call sequence
23 tables that were produced by the Prosecution, tendered and withdrawn and
24 retendered by the Ayyash Defence during Mr. Donaldson's testimony, as the
25 material referred to in this RFA response forms the basis of those two
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 37
1 CSTs, which are found at P522 and 1D446. So I would ask that that
2 document also have its MFI removed.
3 PRESIDING JUDGE RE: All right. I take it that that's unopposed?
4 Yes, Mr. Milne is nodding his head. So 1D454 marked for
5 identification will be received into evidence.
6 MR. MAIR: 1D304 is the exhibit number.
7 PRESIDING JUDGE RE: Yes, I circled that but I went to the one on
8 the bottom. Okay. Yes. 1D304 marked for identification will be
9 received into evidence.
10 MR. MAIR: That's all I have for Your Honours today. Thank you
11 very much.
12 PRESIDING JUDGE RE: Mr. Mair, on the subject of Ayyash Defence
13 exhibits, are there any other outstanding documents you've tendered
14 during the Prosecution case? I can't think of any.
15 MR. MAIR: Based on our records, that is all of the exhibits
16 related to Ayyash or Ayyash-tendered exhibits currently marked for
17 identification. I think we're caught up.
18 PRESIDING JUDGE RE: And as far as I can recall, there is nothing
19 awaiting decision in relation to the Ayyash Defence?
20 MR. MAIR: No.
21 [Trial Chamber and Registrar confer]
22 PRESIDING JUDGE RE: Yes, Mr. Mair.
23 MR. MAIR: Your Honours, I arise to correct myself already. In
24 fact, there are a number of additional documents marked for
25 identification. Those would be the witness statements, I believe, if my
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 38
1 numbers are correct, 14 witness statements from 13 witnesses that are
2 currently marked for identification.
3 In light of Your Honour's decision, I don't believe that there is
4 anything that can be done at this point in time. So we would ask that
5 those remain marked for identification as we are still considering our
6 position. We won't be withdrawing them, but we also understand that they
7 could not have their MFI status removed.
8 So I wish to correct that there are those additional statements,
9 but I don't believe that any change could be made to them at this point.
10 PRESIDING JUDGE RE: Those ominous words, "we are still
11 considering our position," can you elaborate on what is meant by that?
12 I'm sure there is some subtext there which has maybe escaped me.
13 MR. MAIR: I'm afraid I can't say much more, other than based on
14 the stage of the case that we are at, there is nothing more that can be
15 done. And there is various stages yet to come in this trial and that the
16 status of those exhibits may be impacted by those stages. I realize
17 that's quite vague, but I hope that answers Your Honour's question.
18 PRESIDING JUDGE RE: Yes, you're saying there is nothing further
19 to be done in relation to those statements which were marked for
20 identification at the moment, but that may change later in the trial.
21 And that is by virtue of the Trial Chamber's, I don't know, seven, eight
22 or so decisions in relation to receiving Defence witness statements
23 during the Prosecution case over the objection of the other party, here
24 the Prosecution, and basically saying we won't do it.
25 MR. MAIR: Yes, that's correct, Your Honour.
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PUBLIC Official Transcript Ruling (Open Session) Page 39
1 PRESIDING JUDGE RE: Oneissi, I had one there.
2 Ms. von Wistinghausen.
3 MS. WISTINGHAUSEN: Yes, Your Honour.
4 PRESIDING JUDGE RE: Oh, there's one. I'm sorry. It's 4D364.
5 But I don't think you have to do anything. I have a decision in relation
6 to this, so I will render the decision.
7 MS. WISTINGHAUSEN: I think we've done everything we had to in
8 relation to that.
9 PRESIDING JUDGE RE: The decision is the following:
10 The amended consolidated indictment alleges that the accused,
11 Mr. Hussein Hassan Oneissi, was involved between December 2004 and
12 January 2005 in locating a person to make a false claim of responsibility
13 for the future attack against Mr. Rafik Hariri. For this purpose,
14 Mr. Oneissi was in the vicinity of the Arab University Mosque of Beirut
15 on several days during this period.
16 Counsel for Mr. Oneissi cross-examined the Prosecution expert
17 witness Mr. Gary Platt and showed him a series of maps illustrating how
18 mobiles attributed to members of Mr. Oneissi's family activated cell
19 phone towers in the area of the mosque between December 2004 and February
20 2005.
21 Counsel tendered the maps into evidence on 19th of April, 2017,
22 and they were collectively marked for identification as Exhibit 4D364
23 MFI.
24 On 21 November 2017, counsel for Mr. Oneissi filed an application
25 requesting the Trial Chamber to admit into evidence that exhibit, amongst
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PUBLIC Official Transcript Ruling (Open Session) Page 40
1 others, that was F3419, "Oneissi Defence Motion for the Admission Into
2 Evidence of Three Documents Marked for Identification." The application
3 requested the admission into evidence of two other documents, exhibits
4 marked for identification, which the Trial Chamber will deal with
5 separately.
6 The Oneissi Defence submitted that Exhibit 4D364 MFI is relevant
7 and probative of innocent reasons why Mr. Oneissi would have been in the
8 area of the Arab University Mosque. The Defence explains how the maps
9 were created in support of the exhibit having prima facie reliability and
10 hence some probative value.
11 The Prosecution responded on 7 December 2017 that the Oneissi
12 Defence failed to provide the underlying material or demonstrate the
13 criteria for selection of calls and dates in the maps contained in the
14 exhibit. It is not possible, the Prosecution submitted, to identify
15 whether the selected calls are representative or not of the movement of
16 the mobiles. A single contact with a cell tower may be a mere aberration
17 or reflect someone calling while driving through or past an area. This
18 is set out in filing F3465, "Prosecution Response to 'Oneissi Defence
19 Motion for the Admission into Evidence of Three Documents Marked for
20 Identification.'"
21 The Trial Chamber considers that the Oneissi Defence has
22 established the relevance and prima facie reliability and hence probative
23 value of Exhibit 4D364 MFI and has established enough probative value to
24 warrant its admission into evidence. The Prosecution's concerns, in the
25 Trial Chamber's view, regarding selectivity go to the weight of the
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 41
1 exhibit, which the Trial Chamber will assess along with all the other
2 evidence later in the trial.
3 The Chamber therefore orders that Exhibit 4D364 marked for
4 identification be admitted into evidence.
5 That completes that decision.
6 Ms. Bafadhel, just before you get there. We now have a decision
7 filed in relation to Witness 088 but we'll come to that later.
8 Ms. Bafadhel, what do you have for us?
9 Yes, Mr. Milne.
10 MR. MILNE: Your Honour, before my learned friend seeks to expand
11 upon the documents, I would remind both the Sabra Defence and indeed the
12 Trial Chamber of the guideline that any summaries for statements should
13 be disclosed to the opposite party the day before they are read out.
14 We received them at 12.19 since we've been sitting in court.
15 Even with a quick view, there are one or two aspects that I'm not
16 entirely comfortable with. And coupled with that, we have a ten-page
17 list of items which the Sabra Defence indicate they wish to have
18 admitted.
19 Now, they, we must assume, from the numbering at the top of each
20 section, relate to the various motions where admissions have been granted
21 by the Trial Chamber. But, Your Honour, I am not in a position to check
22 these or the accuracy of these whilst I sit here. I referred them
23 immediately to my colleague who has been dealing with these matters.
24 Your Honour, there is an unhappy history with the documents that
25 have come from that quarter, and I remind myself of the comment that I
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 42
1 think President Ronald Reagan used to make to Mr. Gorbachev, which was
2 the Russian equivalent of trust but verify, and we would certainly wish
3 to do that before anything further is admitted.
4 We worked late last night and provided the summaries that were
5 required. I was here this morning before 7.30, expecting, perhaps, a
6 very late submission from the Sabra team. I did not expect to have to
7 wait until the second trial session today at 12.19 to receive it, and I
8 would submit that we are entitled to the same courtesy which we have
9 always extended to the Defence in the advance service of these documents.
10 PRESIDING JUDGE RE: Ms. Bafadhel, there is a lot of force in
11 what Mr. Milne is saying. The decisions relating to these documents were
12 issued sometime ago. The first one is 3024 -- or, I'm sorry, it's --
13 3024 was the "Sabra Defence Motion for the Admission of Documents Related
14 to the Claim of Responsibility - Character, Religious Beliefs, and
15 Associates of Ahmad Abu Adass With Updated Annexes."
16 The Chamber's decision was delivered on the 25th of September,
17 2017. That's almost three months ago. I think it's that one. So
18 almost -- it's been three months since you've had very good notice that
19 the Chamber was going to receive these into evidence, and the Trial
20 Chamber's guidelines are quite clear on the need for summaries in
21 relation to any documents or witness statements.
22 And we set this date for hearing a week before last, I'm pretty
23 sure. So we've had two weeks' notice of this hearing, and we had a case
24 management meeting yesterday afternoon. You were there, of course. And
25 our legal officers communicated with the parties in advance, saying that
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 43
1 this day was reserved for the admission of evidence.
2 So there's been a lot of, well, prompts there, if I could put it
3 diplomatically, to spur you into action. So what do you say?
4 MS. BAFADHEL: Your Honour, of course, quite rightly, I can only
5 stand and apologize. We should have released these statements to the
6 Chamber and the Prosecution, of course, earlier. I don't want to lay out
7 our excuses here. I don't think that would be appropriate. Only to say
8 that we were also, my colleagues and I, were working until midnight last
9 night and in the office by 8.00 striving to get this done. So we had a
10 lot of revisions to do --
11 PRESIDING JUDGE RE: Ms. Bafadhel, you've had months notice of
12 this, so I don't understand why you would be here until midnight. I
13 mean, we appreciate that the closer you get to crunch -- we've all been
14 in that situation, and the Trial Chamber itself is today in trying to get
15 two decisions finalized so that we can complete the reception into
16 evidence of Prosecution evidence. But you've had a long time to, I think
17 to put it colloquially, get your act together or your house in order for
18 this one.
19 MS. BAFADHEL: Your Honour, you'll understand the procedural
20 history around a number of these documents, and a lot of the supporting
21 statements that we were tendering are still -- well, have been rejected.
22 So we've had to revise and work on the contents of these documents
23 accordingly.
24 We are a small team, with a lot of filings that we've been
25 dealing with, so at the time this was being dealt with in a piecemeal
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 44
1 fashion and had to all come together quite recently. So we have been
2 striving. But again, I do apologize. The Prosecution is quite right in
3 that they should have more time to review, and I hope that that can be
4 possibly afforded.
5 In terms of what we can go on with, we can move on with the
6 summaries for PRH103. And whenever the decision on PRH056 comes in, we
7 can also move on for the summaries for the motions for admission of
8 evidence 1 to 6 shortly thereafter. But I leave it to Your Honour as to
9 whether I go straight into it now or whether other summaries are read out
10 to allow the Prosecution a bit more time to review and verify, as they
11 require.
12 PRESIDING JUDGE RE: Mr. Milne, is your complaint about the
13 summary of Ziad Ramadan's statement or the entirety of the list which you
14 want to the check, or both?
15 MR. MILNE: It's both, Your Honour. And as far as 056 is
16 concerned, we still haven't had a summary. Although, I note that the
17 Trial Chamber indicated to the Sabra Defence yesterday which of the
18 statements they sought would be admitted. We have provided, in
19 anticipation, a summary of our statements. But be that as it may --
20 PRESIDING JUDGE RE: Ms. Bafadhel, is there one here for
21 Witness 056? I can't see the summary there. Just pause for a moment,
22 please.
23 Ms. Bafadhel, our legal officers informed you yesterday, as we
24 said at the case management meeting, that we were admitting all of the
25 Prosecution's statements of Witness 056 and some of the Defence tendered
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 45
1 statements. That was -- we'd finished that by about half past 3.00. Our
2 legal officers, our -- I think your legal officer telephoned our legal
3 officer to find out which ones, which we informed you that we were
4 admitting four and we told you which ones they were.
5 The decision will be filed shortly, but it will say that we are
6 admitting those four, which we've already told you about. Another three
7 we're rejecting on the basis of relevance. Another three we have found
8 are relevant but lack sufficient reliability; that is, there is nothing
9 to indicate their provenance. They appear to have come from the Lebanese
10 investigatory case file but are undated and unsigned, and we've said that
11 they lack probative value at the moment. But if you can cure that, we
12 will reconsider whether we receive them into evidence.
13 So there is only four statements you really need to have had
14 summaries, I'm putting it in the past tense, prepared for by today. And
15 the guidelines are quite clear: When admitting statements, the public,
16 which is following the proceedings, should be informed of what we are
17 receiving into evidence. Unlike at other international criminal courts
18 and tribunals, where things are admitted in decisions and the public has
19 no idea if the exhibits aren't on the web site as to what we've actually
20 received. So it's quite important for the public nature of the
21 proceedings.
22 So how are we going to rectify this, looking forward?
23 MS. BAFADHEL: I'm grateful, Your Honour. I can say I actually
24 thought it had been circulated. I've just sent a quick e-mail back now,
25 so it should be circulated right now, a draft version of that. So I'm
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 46
1 hoping that has reached everyone in the courtroom, although I am having
2 issues with Outlook at the moment so I'm not quite sure.
3 PRESIDING JUDGE RE: All right. As a matter of fairness, the
4 Prosecution and the other parties should have a chance to review the
5 summaries. There have been complaints, of course, from the Defence about
6 the Prosecution's summaries, and Mr. Aouini rose this morning and pointed
7 out something which was ambiguous or even incorrect in one of the
8 Prosecution's summaries, but then he'd had some time to reflect on it.
9 So we've got to give the Prosecution the same chance to do that.
10 All right. So can we move, Mr. Desalliers or Mr. Milne, to
11 Witness 088. The Trial Chamber has filed a decision of today's date,
12 13th of December, 2017, F3479, "Decision on Prosecution Motion to Admit
13 Two Documents and One Witness Statement and for Protective Measures for
14 PRH088." And you've got some exhibit numbers reserved for that, so we'll
15 move to those ones and come back to the Witness 056 numbers later.
16 MR. MILNE: We can do even better than that, Your Honour. We can
17 introduce Ms. Bari again, who has been dealing with this witness and has
18 joined us in order to deal with the summary.
19 PRESIDING JUDGE RE: Welcome back, Ms. Bari. I didn't see you
20 were sitting in the back there. It's been a while.
21 I should have put your appearance on the record before but I've
22 noted it now.
23 MS. BARI: Good afternoon, Your Honours. Thank you. Indeed, it
24 has been a long time. And good afternoon to my learned friends too.
25 So today I seek to have admitted into evidence two documents and
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 47
1 one witness statement in accordance with the Trial Chamber's decision,
2 filing number 3479.
3 I will firstly deal with the witness statement of PRH088 for
4 which an application of protective measures was also sought and granted,
5 Your Honour. The witness statement for this witness appears at
6 presentation queue 4, which is the original English, and 5 which is a
7 translated Arabic. This is not for public viewing, Your Honour. Due to
8 the short notice, redacted versions are not available but can be done for
9 the future.
10 This statement is dated the 19th of September, 2006. It is
11 relevant as the witness PRH088 identifies a landline number that was in
12 contact with one of the Red Network phones, that being Red 636 which was
13 identified as Subject 5.
14 In his statement, he identifies this landline number as a public
15 pay phone for a shop that was based in Nabatiyeh, which was used from the
16 period 2001 to 2002 but was deactivated on the 7th of March, 2006. No
17 records were kept of people using this pay phone.
18 It's the Prosecution's case that the Red Network was a 100
19 per cent closed user group that did not make any calls outside its
20 network other than to call service providers.
21 This specific landline number only made one call to this Red 636
22 number on the 12th of February for a duration of nine seconds and never
23 called that number again, and this would suggest that the call made by
24 this landline number was a misdial to this Red Network phone.
25 This was further elaborated on by Mr. Gary Platt, PRH147, in his
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 48
1 evidence identifying it as a misdial in transcript dated 26th of July,
2 2016, transcript number 282, at page 11, lines 8 to 18. The ERN number
3 for this statement is 60008423 ending 60008428, and I would ask the Court
4 to allocate the exhibit number P2135.
5 PRESIDING JUDGE RE: All right. The document as described will
6 be Exhibit P2135. The date of the statement, the transcript says the
7 19th of September, 2006. That couldn't be right. It is?
8 MS. BARI: It is indeed, Your Honour.
9 PRESIDING JUDGE RE: All right. Anything else, Ms. Bari, or is
10 that it for the afternoon?
11 MS. BARI: I have two remaining documents to be submitted into
12 evidence.
13 The next document appears at presentation queue 1, which is the
14 original Arabic, and 2 is the English translated. Again, this is not for
15 public viewing. This is our subscriber note for a phone number that was
16 identified as being registered to Protel Company LCC.
17 The ERN for this document is 60252843. I would ask the Court to
18 allocate Exhibit P2136 to this document.
19 This document is relevant to the Prosecution's case because
20 Yellow Phone 763 was in contact with the phone number ending 360 of the
21 Protel Company five times between the period July 2004 to December 2004.
22 Mr. Gary Platt gave evidence that all 14 Yellow Phones and Blue
23 428, which is Subject 18, were also in contact with other landline phone
24 numbers also subscribed to this company. This subscriber note is
25 therefore of probative value in the analysis that Protel Company LCC was
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 49
1 a common contact to the Yellow Phones and the Blue Network phones, which
2 are alleged to have been used in the planning and the preparation of the
3 attack against Mr. Hariri.
4 Nothing further to add in relation to that.
5 PRESIDING JUDGE RE: All right. That document will be admitted
6 as P2136.
7 MS. BARI: Finally, the last document which appears at
8 presentation queue 3. This is also not for a public viewing. The ERN is
9 D014672.
10 I would ask the Court to allocate Exhibit P02137 to this
11 document.
12 PRESIDING JUDGE RE: The ERN is lacking a 0. It should be 2 -- I
13 start again, D0146720. And it's described as a Microsoft Excel document,
14 file of a CD. It appears to be a response to a request for assistance
15 sent by the Prosecution -- no, before that. It would have been the
16 United Nations International Independent Investigations Commission in
17 2008 to, it appears, the Alfa telecommunications company in Lebanon. The
18 document relates to Alfa active pre-paid mobiles.
19 MS. BARI: Yes, Your Honour, that is correct. That is the
20 unfortunate and long title of this document, but as I shall go on to
21 explain the nature and the content of this document to help the Court
22 understand its relevance and probative value.
23 This document is a subscriber record which assists in identifying
24 the registered subscriber of this phone number as being a person named
25 Jaber Wael Afif. The phone number in this record is 319348. It
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 50
1 describes this phone being an Alfa active pre-paid line that was
2 activated on the 9th of December, 2003, and was deactivated on the 24th
3 of October, 2005.
4 It's relevant to the Prosecution's case and probative value for
5 two reasons.
6 Firstly, it supports previously tendered evidence to show that
7 this number, which the Prosecution describes as a Blue Network phone,
8 Blue 428, known as Subject 18, was purchased in a manner to protect his
9 identify through the use of false or counterfeit documentation. A
10 counterfeit driving licence in the name of Jaber Wael Afif had been
11 provided as part of the contract for this Alfa active pre-paid also in
12 the name of Jaber Wael Afif. And it's therefore the Prosecution's
13 position that this subscriber, the named subscriber in this record, was
14 not the real phone user of this phone.
15 Secondly, this phone number was one of the 15 Blue Network phones
16 that were set up in December 2003 and were topped up on a monthly basis
17 for a period of nearly a year before being used in initial preparatory
18 stages of the conspiracy, particularly in the Blue mission set-up phase
19 of the conspiracy.
20 I've nothing further to add in relation to that document, Your
21 Honour. Thank you.
22 PRESIDING JUDGE RE: That's it?
23 MS. BARI: Yes, Your Honour.
24 PRESIDING JUDGE RE: Thank you, Ms. Bari.
25 What's next -- did I give an exhibit number for that? That last
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 51
1 document will be Exhibit P2137, as described by Ms. Bari.
2 Yes, Mr. Desalliers.
3 MR. DESALLIERS: Your Honours, two documents. They are in
4 relation to filing F3412, "Prosecution Motion for the Admission of a Call
5 Sequence Table Related to the Accused Merhi Pursuant to Rule 154 and a
6 Related Witness Statement Pursuant to Rule 155." Your Honours have
7 issued two decisions. They are both dated 12th of December in relation
8 to that issue.
9 The first that I will highlight is decision F3477. It is
10 "Decision Admitting Into Evidence an Expert Report for J.E. Philips
11 Demonstrating Single Person Use of Green 071, Purple 231, and the Grey
12 Phone Through Cell Site Analysis." In this decision, Your Honours have
13 formally admitted into evidence Mr. Philips' report as P2120, which was
14 previously MFI'd.
15 The second decision --
16 PRESIDING JUDGE RE: Mr. Desalliers, just pause for a moment. So
17 I'll formally put on the record, consistent with that decision, F3477,
18 Exhibit P2120 MFI is now received into evidence.
19 MR. DESALLIERS: Thank you, Your Honour. The second decision in
20 relation to that topic is another decision dated 12th of December, 2017.
21 It is F3478, "Decision Admitting Into Evidence a Call Sequence Table
22 Relating to the Grey Mobile and the Corresponding Witness Statement."
23 Very briefly, Your Honours, I will first highlight that the list
24 that we have circulated yesterday with the proposed exhibit number
25 unfortunately have reversed the ERN numbers for both documents, so I will
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 52
1 start with the CST for -- the combined CST for Purple, Green, and the
2 Grey Phone. It is at ERN D0534265 to D0534328. That, Your Honour, was
3 declared admissible in the decision of -- from yesterday, F3478. So for
4 the record, it is the call sequence table that was used by Mr. Philips
5 for the preparation of his latest report. So the proposed exhibit number
6 for that document would be P2133.
7 PRESIDING JUDGE RE: All right. The call sequence table CST/0445
8 for the date range 24th of September, 2004, to the 15th of February,
9 2005, for numbers described as Purple 231, Green 071, and the Grey Phone,
10 will be Exhibit P2133. And can you briefly tell us the relevance and
11 probative value of this? I know it's in the decision, but just for the
12 transcript, please.
13 MR. DESALLIERS: Yes, this combined CST is relevant and probative
14 as it shows and as was explained by Mr. Philips in his report and his
15 evidence before the Chamber, this CST shows the use of these three phones
16 and allowed Mr. Philips to determine through the analysis of the CST that
17 these three mobile phones could have been used by a single person. So
18 the relevance of that combined CST is to allow Mr. Philips to provide
19 evidence as to the possible co-location of these three phones or
20 possibility that these three phones could have been used by a single
21 user.
22 PRESIDING JUDGE RE: And the purpose of the Trial Chamber [sic]
23 producing this call sequence table of the three phones - Purple, Green,
24 and Grey - was as is set out in the decision of yesterday's date, the
25 12th of December, F3478, and earlier decisions on this was to rebut a
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 53
1 suggestion put by counsel for the accused Mr. Merhi in cross-examining
2 Mr. Andrew Donaldson that the co-location or possible co-location of the
3 Grey Phone and the Green Network phone as pleaded, Green 071, suggested
4 that the user of the Grey Phone was someone other than Mr. Merhi.
5 The Prosecution consequently did a cell dump and a call sequence
6 table for the Purple personal mobile 231 attributed to Mr. Merhi, the
7 Green Network 071 attributed to Mr. Merhi, and this new phone, the Grey
8 Phone, and Mr. Philips prepared a report, which the Chamber has received
9 into evidence as P2120, stating that the three had possible co-location
10 and hence a single user between September 2004 and 15th of February 2005.
11 Anything else on this one, Mr. Desalliers?
12 MR. DESALLIERS: Simply again, pursuant to the Trial Chamber's
13 decision in relation to the call sequence table, the Chamber declared
14 admissible the statement of Ms. Kei Kamei, who explained the method she
15 used for the preparation of the combined CST. So this statement is
16 simply tendered to show the reliability of the said CST, so we would
17 request the admission into evidence of that statement. It is dated
18 2nd of November, 2017. It can be found at ERN 602326298 to 60326302.
19 And we would suggest for this statement, Exhibit P2134, please.
20 PRESIDING JUDGE RE: All right. The statement can be displayed,
21 can't it? There are no protective measures for this witness, and it's
22 just a statement about methodology. We won't show a date of birth, don't
23 worry.
24 MR. DESALLIERS: I don't believe there is any issue, Your
25 Honours.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 54
1 PRESIDING JUDGE RE: All right. That statement of Ms. Kei Kamei
2 will be received into evidence as Exhibit P2134. And to correct the
3 transcript, a moment ago at page 52, line 12, it appears I misspoke where
4 the transcript records me as saying:
5 "And the purpose of the Trial Chamber producing this call
6 sequence table of the three phones ..." If I said "Trial Chamber," I
7 meant to say "Prosecution," so I correct that.
8 MR. DESALLIERS: Your Honours, if I may correct myself, this
9 statement could be shown --
10 PRESIDING JUDGE RE: Mr. Desalliers, just wait. Okay.
11 MR. DESALLIERS: This statement could be shown, save for its
12 annex. So the annex is not for public display.
13 PRESIDING JUDGE RE: Yes, Mr. Desalliers. Anything else?
14 MR. DESALLIERS: That completes, Your Honour, this part.
15 PRESIDING JUDGE RE: What's next?
16 MR. MILNE: Your Honour, the Trial Chamber has invited the
17 Prosecution to read in now the summaries of those witness statements for
18 PRH103, Ziad Ramadan, which were admitted on a previous occasion.
19 Casting my eye down, they were admitted a year ago today, actually 13th
20 of December last year, and therefore received numbers some time ago but
21 the summaries were not read at the time.
22 Your Honour, the three exhibits which have been admitted:
23 Exhibit P01774 was a statement of the 16th of February, 2005; P01775, a
24 statement of the 1st of December, 2005; and P1776, a statement of the
25 22nd of May, 2006.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 55
1 In its decision admitting statements of Witness PRH103 under
2 Rule 158, and that was your decision of the 12th of December, 2016,
3 filing F2901, the Trial Chamber had declared admissible those three
4 witness statements as tendered by the Prosecution. They were formally
5 admitted and received the exhibit numbers. And the presentation queue
6 for those is entitled, F2601, "Prosecution Motion to Admit Two Statements
7 and an Interview Transcript of PRH103."
8 The witness, Mr. Ramadan, was a former work colleague and friend
9 of Mr. Abu Adass. Mr. Abu Adass appeared in the video claiming
10 responsibility for the attack, which the Prosecution say is a false
11 claim.
12 This witness's evidence is relevant and probative of issues
13 relating to Mr. Abu Adass, including his character, his behaviour, and
14 what he told the witness regarding a man known as Mohammed whom he had
15 met at the mosque.
16 On the 16th of February, 2005, the Lebanese authorities had
17 interviewed this witness, and again in December of 2005 and May the
18 following year the United Nations International Independent
19 Investigations Commission also interviewed him.
20 Across the three statements, the witness described, amongst other
21 things, the following: That on the Friday evening before Ahmad Abu Adass
22 disappeared, that is Sunday, the 16th of January, 2005, he had told the
23 witness about Mohammed, a young man whom he met at the mosque. He said
24 that Mohammed had been sitting alone and not joining the prayers, and
25 after the prayers Mr. Abu Adass had spoken with Mohammed, who stated that
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 56
1 the man, Mohammed, stated that he had groan up in a Christian orphanage
2 but his birth family was Muslim. Hence, he was converting to Islam.
3 Mohammed had told Mr. Abu Adass that he was working at the Port
4 of Beirut importing cars with a Christian car dealer and they shared
5 their profit. Mohammed had told Mr. Abu Adass that he no longer wanted
6 to live in the eastern area, which is a Christian neighbourhood, and that
7 he wanted to live with Muslims.
8 Mohammed also told him that he wanted to break his business
9 partnership and get his capital so that he could marry a Muslim girl and
10 live in a Muslim neighbourhood. He was looking for another job or
11 another field of work where he could invest his capital.
12 Mohammed told Mr. Abu Adass that he would come back to see him in
13 a couple of days. However, Mohammed disappeared for almost ten days.
14 The witness, that is Mr. Ramadan, never met Mohammed.
15 After Mr. Abu Adass disappeared, his parents spoke with this
16 witness. On the day of his disappearance, one of the parents told the
17 witness that someone had come early in the morning to take Ahmad
18 Abu Adass and show him an apartment but he never came back. The
19 following day, the parent told the witness that the family had received a
20 phone call from someone telling them that Ahmad Abu Adass was fine but
21 that their car had broken down on their way to Tripoli and that
22 Mr. Abu Adass was sleeping in an apartment.
23 In the UNIIIC statement of 1 December 2005, the witness stated
24 that Mr. Abu Adass did not know how to drive a car and that Mr. Abu Adass
25 did not have a mobile phone. The witness also stated that he did not
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 57
1 tell the Lebanese authorities about Mohammed because he was scared and he
2 feared that his knowledge of this information endangered his life.
3 Your Honour, that is the summary of those three statements. Your
4 Honour, pending the decision of the Trial Chamber, we can go no further
5 with witness statements.
6 There are a small number of, for want of a better expression,
7 housekeeping matters which might be usefully resolved at this stage, and
8 I hope we can do these relatively briefly.
9 First of all, might I deal with an exhibit that remains on the
10 Prosecution list as being marked for identification, and that is
11 Exhibit P506 MFI. It has a slight history. P506 MFI was the original
12 call sequence table for the landline of the Reuters News Agency, and it
13 was referred to during the evidence of a witness, PRH012.
14 The Trial Chamber is now thoroughly aware that many of the
15 landline CSTs had to be revised. This one was revised. When it was
16 revised, it got a new number, and the new number, which is a full exhibit
17 number, is P1970.
18 Now, I raise this because ordinarily, of course, 506 MFI would
19 simply fall away and be disregarded. However, the transcript shows that
20 506 was the item being shown to the witness. One option, which we would
21 commend, is that we abandon instead P1970 and P506 refers to the new
22 revised exhibit. That might also render the transcript a little more
23 comprehensible when one returns to it.
24 PRESIDING JUDGE RE: Any objection? No. All right. We'll note
25 that P1970 and P506 MFI are the same exhibit.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 58
1 MR. MILNE: Yes.
2 PRESIDING JUDGE RE: And P506 MFI will be admitted and received
3 as P506. That will mean that there are two duplicate exhibits, but
4 that's not going to affect anything.
5 MR. MILNE: The next is shorter still and I hope very simple.
6 There is an MFI under the Prosecution heading, which is P577 MFI. It was
7 the witness statement of a witness PRH553 who in fact gave evidence with
8 the benefit of protective measures and was vive voce. I think out of an
9 abundance of caution, the possibility of adducing the witness statement
10 was left open. We do not seek that, and we are content that the list
11 marked for that witness statement is simply withdrawn. The evidence is
12 that which is the vive voce evidence on the transcript. So 553,
13 Prosecution 553 MFI -- I beg your pardon, Prosecution 577 MFI need not be
14 used.
15 PRESIDING JUDGE RE: Okay. We note that the --
16 MS. BAFADHEL: Your Honour, sorry to interrupt, but would you
17 indulge us with the time just to check whether this was used with the
18 witness in court, and if so to what extent? Because I know that the
19 Sabra Defence did cross this witness and just to see if that has any
20 impact before we give our position, please.
21 PRESIDING JUDGE RE: Yes. Have you discussed this with Defence
22 counsel, Mr. Milne?
23 MR. MILNE: Your Honour, we have not. My recollection was that
24 this was not actually -- I don't think the witness statement was put to
25 the witness. It would not, in any event, become a Prosecution exhibit.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 59
1 We were not putting it to him and we did not seek to rely upon the
2 statement.
3 If it were properly put to the witness for, say, the purposes of
4 contradiction, the Defence did not seek its admission at the time. If
5 they chose to do so and could make out good grounds for that, then
6 obviously that could be done so it would become a Defence exhibit. I am
7 quite content for my learned friend to check it, but I don't think it
8 needs to remain a Prosecution MFI for that purpose. And this goes back
9 to the 10th of September, 2015, so it is quite some time ago. It's never
10 been raised since then.
11 PRESIDING JUDGE RE: All right. We'll let Ms. Bafadhel and other
12 Defence counsel check this over the break.
13 What else?
14 MR. MILNE: We have a couple of corrections to make.
15 In Mr. Donaldson's PowerPoint presentation reflecting Mustafa
16 Badreddine, we corrected one of the slides. The exhibit number for the
17 PowerPoint presentation was P2022, and slide 56 was corrected, but we
18 failed to read onto the record the ERN. The corrected slide received the
19 subnomination P2022.2, but unfortunately there doesn't appear to have
20 been any ERN provided at the time. The ERN for that slide, it's a single
21 slide, was D0532332. Single page.
22 PRESIDING JUDGE RE: Noted.
23 MR. MILNE: I note quizzical looks, but I hope -- and if there is
24 any confusion, I will confirm this with the court staff afterwards.
25 A further correction of an ERN, this is not something that I
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 60
1 would choose to expand upon, but it is Exhibit P765. Can I say simply
2 that when that was introduced, there was a slightly wrong ERN provided
3 and I can now provide the correct one. The correct one is 60130939 to
4 60130940. The error the first time round was that the starting page
5 ended 95 when it should have ended -- I beg your pardon, 935. It should
6 have ended 939. So could that please be corrected on the record on
7 Legal Workflow for that exhibit.
8 PRESIDING JUDGE RE: Also noted.
9 MR. MILNE: And in this sequence, a subpart, that is, an extract
10 from that exhibit, P765. The Trial Chamber instructed us to extract one
11 part of it, and that extract should now become P765.1. And again, Your
12 Honour, what I will do, with the Court's leave, is provide the full
13 details to the court staff.
14 PRESIDING JUDGE RE: What's the ERN of the extract?
15 MR. MILNE: Your Honour, I don't think that has -- it's a
16 separate ERN. But I can identify the precise element from within the
17 broader range, if that assists.
18 PRESIDING JUDGE RE: That's fine. As long as it has a unique
19 identifying number.
20 MR. MILNE: Well, the full range is only two pages. It is an
21 element of that.
22 PRESIDING JUDGE RE: All right. A semi-unique identifying number
23 then.
24 MR. MILNE: I am assured that the correct extract for that, in
25 fact, should be 60130935 to 60130937.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 61
1 PRESIDING JUDGE RE: All right. That extract will be P765.1.
2 MR. MILNE: Your Honour, for those who care to do so, we have
3 a -- if one looks on Legal Workflow for the marked for identification
4 items still remaining for the Prosecution, one of them is still listed as
5 Exhibit P522 MFI. I'm not entirely clear why, Your Honour. It was a
6 Prosecution MFI. And in October of this year, at the request of the
7 Ayyash Defence, it became a full exhibit. Strictly speaking, it's a
8 Defence exhibit, but the Ayyash Defence decided that it should keep the
9 number and therefore it is P522. So it now appears both in the admitted
10 list and in the MFI list, but it is an admitted exhibit and therefore can
11 be disregarded as far as the MFIs are concerned.
12 What remains are essentially five items MFI, each of them
13 relating to Mr. Andy Donaldson: His telephone attribution reports and
14 his witness statement. And the reason that they, as it were, linger in
15 limbo with the MFI attachment is because they will receive some footnotes
16 related to the exhibit numbers that have been given today. We can do
17 that relatively quickly, although we cannot realistically complete that
18 process today. But we could do it in very short order.
19 And beyond that, we are trusting that there will be no further
20 Prosecution exhibits marked for identification.
21 Your Honour --
22 PRESIDING JUDGE RE: Mr. Milne, with Mr. Donaldson's reports, is
23 putting in the exhibit numbers of the exhibits we've admitted today, such
24 as Witness 56 --
25 MR. MILNE: Yes.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 62
1 PRESIDING JUDGE RE: -- replacing the ERN or whatever is there
2 and that's it?
3 MR. MILNE: Yes. In fact, two also of the other decisions that
4 have resulted in numbers today will also play a role in that.
5 Now, Your Honour, that is, I think, as far as I can properly take
6 matters at present. One last remaining issue that I would ask for the
7 Trial Chamber's indulgence on is simply this: That as was rightly
8 observed, there are a number of filings still being exchanged between the
9 parties.
10 Some of those filings will be completed before the
11 Christmas/holiday New Year recess begins at the end of next week. Some
12 will not. We would simply ask that given the holiday season, that the
13 recess period not count for the purposes of filing. And by that I mean
14 that the normal extension granted for court holidays cover that period.
15 Your Honour will be aware that when a filing is due on a
16 non-court day, it is the next court day which will conventionally apply.
17 So if a filing were due, for the sake of argument, on a Saturday, it
18 would be normally the following Monday. Similarly, if it were to follow
19 due on Christmas day, and one or two of them do in fact, it should not
20 fall due until the 27th at the earliest, but I would ask that the Court
21 extend that period for the benefit of all parties simply so that,
22 firstly, our staff can take a well-deserved rest, and secondly so that we
23 can prepare properly to respond in the new year.
24 PRESIDING JUDGE RE: What's the end date?
25 MR. MILNE: The last day of recess officially is the 5th of
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 63
1 January. Therefore, the first day post-recess will be Monday, the 8th.
2 PRESIDING JUDGE RE: Do Defence counsel have any objection to
3 that proposition?
4 MR. AOUINI: [Interpretation] Thank you, Your Honour. My
5 observations are not related to this but are related to what was
6 mentioned on page 61, lines 16 and 17. Mr. Milne and the Prosecutor
7 spoke about decisions, but I wasn't really clear whether there would be
8 additional decisions pertaining to Mr. Merhi. Will the CSTs pertaining
9 to the Grey Phone, will they be included later on? And I would like the
10 Prosecution to explain that a little bit, particularly what he was
11 referring to in line 16 and 17 of page 61.
12 PRESIDING JUDGE RE: Mr. Aouini, this is what Mr. Milne raised at
13 the case management meeting yesterday, that he wanted to recognize that
14 the time for responding to filings be suspended during the court recess
15 to allow staff to have a break. So let's deal with that first. I want
16 to deal with that one first, and then we'll come to --
17 MR. AOUINI: [Interpretation] Thank you very much. I'm not
18 touching upon this issue in particular. I'm referring to another matter
19 that was mentioned by Mr. Milne in page 61, lines 16 and 17. He
20 mentioned decisions, but the matter was not clear to me. I would like to
21 have a little bit more explanation with regards to these two decisions.
22 Is he referring to the Grey Phone? I would like to have more details
23 from the Prosecution.
24 I think my colleague has understood what I'm referring to. Thank
25 you, Your Honour.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 64
1 PRESIDING JUDGE RE: Mr. Milne, just pause for a moment, please.
2 I want to deal with the issue we were dealing with, which was the
3 suspension of time, because that's on the transcript. I want it all to
4 be in the same block on the transcript without interposing other matters.
5 Ms. Bafadhel, you're objecting to the Prosecutor wanting to
6 suspend the time for responding?
7 MS. BAFADHEL: No.
8 PRESIDING JUDGE RE: -- during the recess or not?
9 MS. BAFADHEL: No, Your Honour.
10 PRESIDING JUDGE RE: Wait, wait. Okay.
11 MS. BAFADHEL: It's just to flag that we do have two pending
12 motions whereby the response following the suspension would therefore be
13 in January. Therefore, delaying an upcoming motion that we were planning
14 on filing as well as the attendance of PRH -- possible attendance of
15 PRH555. So in that instance, it would be a request for shortened
16 deadlines on F3471, which is the "Sabra Notification in Relation to the
17 Order to the Sabra Defence and the Prosecution Regarding Call Sequence
18 Table Submitted for Admission Into Evidence."
19 PRESIDING JUDGE RE: Ms. Bafadhel, please slow down. We'll come
20 to that one later. That's on my list of things to deal with. That won't
21 be affected by what I'm trying to get to before I let everyone go and
22 have lunch.
23 The issue of suspending the time for responding over the recess,
24 which should be, I would have thought, uncontested and uncontroversial,
25 let me deal with that first. I have to make an order.
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PUBLIC Official Transcript Ruling (Open Session) Page 65
1 MS. BAFADHEL: I'm grateful.
2 PRESIDING JUDGE RE: The Chamber makes the following order under
3 Rule 9, the variation of time limits:
4 For the period Monday, the 25th of December, through to Friday,
5 the 5th of January, 2018, being the period of judicial recess which
6 includes three official Tribunal holidays of the 25th and 26th of
7 December 2017 and the 1st of January 2018, the Chamber will vary the
8 period for responding to or replying to any filings, and the period will
9 be suspended for those dates to resume on Monday, the 8th of January,
10 unless otherwise specified in relation to specific filings.
11 That completes the order. I did that extemporarily and it wasn't
12 particularly elegant, but I think everyone knows what is meant by that.
13 That means that period doesn't count, just like a weekend wouldn't.
14 No, Mr. Milne?
15 MR. MILNE: I am obliged, Your Honour, yes. And we certainly
16 understand it. I'm sure my learned friends do.
17 I can, I hope, put my learned friend, Mr. Aouini's mind, at rest.
18 The items I was referring to, which have received numbers or will receive
19 numbers, were specifically PRH680, PRH028, and PRH056 still to come,
20 since they are referenced in Mr. Donaldson's footnotes and it will be
21 those items that are changed.
22 I understand that that applies to three out of the four accused.
23 In relation to the Sabra report - and I'll be corrected by my learned
24 friend who is dealing with it if I get this wrong - there is an error --
25 I'll let my learned friend explain, but it's a minor matter.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 66
1 MR. DESALLIERS: Yes, Your Honour. We simply realized that there
2 was an exhibit that was referred to in four footnotes in the attribution
3 report for Mr. Sabra, and it referred to an old ERN for the transcription
4 of an audio-recorded interview, so we would like to correct this to make
5 the reference to the right exhibit.
6 And while we are correcting this report, we suggest that since
7 there was one MFI remaining, it was admitted as a final report even
8 though the statement of PRH024 hadn't been formally admitted at that
9 point, so it remained as an MFI in the report. It has since been
10 formally admitted into evidence, so we would also correct this and change
11 the exhibit number for all references to the statement of PRH024.
12 Simply put, Your Honours, we simply want to correct four
13 footnotes and eliminate an MFI reference that was kept in the final --
14 what was the final version of the report for Mr. Sabra.
15 PRESIDING JUDGE RE: What's the exhibit number?
16 MR. DESALLIERS: It is P1953.
17 PRESIDING JUDGE RE: So in short you want Mr. Donaldson to make
18 some tiny revisions to his report, P1953, which you will show to the
19 Defence and then resubmit in a corrected form?
20 MR. DESALLIERS: Exactly, Your Honour.
21 PRESIDING JUDGE RE: I will leave that to you.
22 Now, Ms. Bafadhel and Mr. Milne, can we resolve the situation
23 today? We might be able to do Mr. Ramadan's evidence. The other ones,
24 Mr. Milne?
25 MR. MILNE: We can --
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 67
1 PRESIDING JUDGE RE: Of course, we have tomorrow reserved if we
2 have to. We can sit tomorrow morning to complete the Sabra evidence if
3 we need to, if you can't resolve it this afternoon, because we have to
4 come back anyway because of the -- after the break for Witness 056, and
5 Mr. Aouini has a few things he wants to say at some point, and I also
6 have to deal with the issue of Witness 555, which won't take that long.
7 MR. MILNE: We will look at the summary for Mr. Ramadan over the
8 lunch break, Your Honour. And if we can agree, we will.
9 As far as the ten-page document is concerned, I'm afraid that is
10 not likely to be completed that quickly. I suspect we won't be able to
11 agree that this afternoon, but we will obviously give it our urgent
12 attention.
13 PRESIDING JUDGE RE: Okay. We'll take a break now.
14 --- Luncheon recess taken at 1.51 p.m.
15 --- On resuming at 3.11 p.m.
16 PRESIDING JUDGE RE: Ms. Bafadhel, you wanted to check P577 MFI.
17 MS. BAFADHEL: Yes, Your Honour. We have done the checks and
18 actually it appears we're not quite the only quarter that needs to
19 verify.
20 The statement itself, which is P577, was used in re-examination
21 by the Prosecution. It's at transcript of the 10th of September, 2015.
22 It's introduced at page 40, lines 9. And then from page 41 onwards to
23 page 43, Prosecution counsel proceeds to read out a number of paragraphs
24 from the statement. And then following a leading question, there is an
25 answer from the witness.
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1 So it is put to the witness in that sense and relied on by the
2 Prosecution, so I'm not quite sure whether the re-examination there will
3 stand without that exhibit.
4 PRESIDING JUDGE RE: I don't understand what you just said.
5 You're not quite sure whether the re-examination there will stand without
6 that exhibit. What do you mean by that?
7 MS. BAFADHEL: Put simply, Your Honour: The witness's answer
8 won't be understood without the two pages of statement portions read to
9 the witness. Is the Prosecution intending to remove -- withdraw its
10 entire re-examination on this point or that portion of it? Since the
11 statement was relied on.
12 PRESIDING JUDGE RE: How could the Prosecution withdraw its
13 entire re-examination once it's already occurred and is on the record?
14 What is done cannot be undone in that sense. It's a bit Shakespearean,
15 but that's your land of birth.
16 MS. BAFADHEL: Sorry, Your Honour. I'm having issues with the
17 transcript. But quite rightly so, in that sense the statement being put
18 to the witness can't be unrelied on by the Prosecution, cannot be undone
19 at this point either. The witness's answer is on the record, as should
20 the statement be.
21 PRESIDING JUDGE RE: I'm still a bit lost.
22 Mr. Milne, maybe you can help me.
23 MR. MILNE: I'm equally lost, Your Honour. We rely upon the
24 answers given by the witness. It's the way we do these things. If
25 something was read to him and he adopted it, then what he adopts that was
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 69
1 read to him becomes part of his evidence. But we don't need, nor did
2 anybody at the time insist, that the document that was read out should
3 become an exhibit. If the Defence wanted it to be an exhibit, they could
4 have asked for it to be an exhibit but they did not. Nobody at the time
5 seemed interested in the document becoming an exhibit. It was left open
6 I think out of an abundance of caution and we don't need it.
7 PRESIDING JUDGE RE: The Prosecution doesn't want to tender it.
8 Is the Defence intending to tender it, Ms. Bafadhel?
9 MS. BAFADHEL: No, Your Honour. It's not a Defence exhibit.
10 Perhaps it's easy if we just go to the transcript and you will see how
11 the answer of the witness cannot in itself be understood if you don't see
12 the two pages of statement that's being put to him followed by a leading
13 question.
14 And it was Your Honour at the time didn't quite understand where
15 the Prosecution was going and requested the MFI, and it was on that
16 basis. So in order for that to be corrected and understood in the
17 future, I think it should maintain that the statement remains as a
18 Prosecution exhibit. It was not used by the Defence for it to become a
19 Defence exhibit.
20 PRESIDING JUDGE RE: Having looked at the transcript, it appears
21 the Prosecutor put portions of a statement given to the UNIIIC to the
22 witness. The witness adopted portions of it. There is some discussion
23 about the names of people who appear in the statement but they weren't
24 put on the record.
25 Where does it take us, Ms. Bafadhel? It appears the Prosecution
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1 got what it wanted from the witness by, I'm not sure if "refreshing the
2 witness's memory" is the correct way of referring to it, but portions of
3 the statement were adopted by the witness. What more do we need to do?
4 It was marked for identification at the time so that we wouldn't lose the
5 document. Do we need to keep it now? Is it the Defence application to
6 tender the entire document? The Prosecution may not oppose it, given
7 that they were reading portions of the statement to the witness.
8 MS. BAFADHEL: Yes, Your Honour. To have the full context of the
9 names and the significant portions that were being put to the witness,
10 it's appropriate for the entire statement, to see what was being adopted
11 by the witness at that time on the stand versus what was being put to him
12 and said in his statement some years ago, for that to be on the record.
13 PRESIDING JUDGE RE: Mr. Milne, is the statement relevant and
14 does it have some probative value, or has it been milked for its
15 relevance and probative value? When I say "milked," I mean already there
16 is nothing left.
17 MR. MILNE: There is nothing that we require, Your Honour. If my
18 learned friend wants it to become an exhibit, then it can become a
19 Defence exhibit.
20 PRESIDING JUDGE RE: Without objection from the Prosecution?
21 MR. MILNE: Without objection.
22 PRESIDING JUDGE RE: All right. Ms. Bafadhel, you want it to
23 become an exhibit without an objection from the Prosecution? It's
24 already been -- the witness has been questioned on it.
25 Under what Rule would you be tendering it?
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 71
1 MS. BAFADHEL: That was my question, Your Honour, since we've had
2 a number of discussions as to whether this would be a statement and
3 whether the Defence can tender statements during the Prosecution's case
4 and so forth. I'm not quite sure which Rule you would be applying.
5 PRESIDING JUDGE RE: Well, there was Rule 155, without
6 cross-examination; Rule 156, with cross-examination; Rule 158, the
7 witness is not available today, it appears.
8 MR. MILNE: This is --
9 PRESIDING JUDGE RE: Rule 154 I think would be pushing it.
10 MR. MILNE: It's academic, Your Honour, that if my learned friend
11 thinks this is a previous inconsistent statement, it can be put --
12 effectively put to a witness. It doesn't require, as it were, the
13 initiating procedure of 155, 154, 161, or anything of that nature for the
14 Defence to put something to the witness. Just as in many cases documents
15 have been put to witnesses during the course of the rest of the trial,
16 and the Defence have not had to define exactly which Rule they want to
17 put under because it's being put in the course of cross-examination. 155
18 and the like is what gets the witness to the court in the first place.
19 PRESIDING JUDGE RE: Yes, I was just testing the waters there,
20 Mr. Milne, to see what the response might be.
21 MR. MILNE: I know this -- we're going to return to this topic
22 very shortly, I anticipate, in a different context.
23 PRESIDING JUDGE RE: Look, the only serious point there,
24 Ms. Bafadhel, is that it wasn't put by the Defence to the witness so what
25 Mr. Milne says is, of course, quite correct. That's the normal way in
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 72
1 which you would put a prior inconsistent statement.
2 But having said that, we'll admit it. That will become 5D469.
3 What's the ERN? All right. Whatever the details are for
4 Exhibit P577 MFI --
5 MR. MILNE: I can assist.
6 PRESIDING JUDGE RE: I'm just wondering, do we make it a Defence
7 exhibit or a Prosecution exhibit? The Prosecution doesn't want to tender
8 it. It's already been marked for identification because the Prosecution
9 has used it in the examination of the witness, but the Defence wish to
10 tender it into evidence. What do I do? Defence exhibit or a Prosecution
11 exhibit? I know it's a deeply philosophical question, but do you care,
12 Mr. Milne, if we just leave it as it is and just take away the MFI?
13 MR. MILNE: I have to accept the same approach that has been
14 taken on a previous occasion in relation to, I think it was, 522 MFI,
15 which again was, strictly speaking, a Defence exhibit which had been a
16 Prosecution exhibit but ended up back with a Prosecution number.
17 There is no -- just as there is no property in a witness, there
18 is no property in an exhibit. If my learned friend wants to put it in,
19 it doesn't greatly matter. But we make it clear, as we have, that we are
20 not relying upon it.
21 The ERN, if that would assist -- very well.
22 PRESIDING JUDGE RE: Don't need that. Okay. We'll leave it
23 as -- we'll admit P506 for the reason -- MFI, for the reasons I've just
24 outlined, as P506 which the Sabra Defence are relying upon rather than
25 the Prosecution. But the Chamber notes in doing this that it's evidence
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 73
1 -- actually, it was P577 MFI, not 506.
2 So P577, although originally marked for identification as a
3 Prosecution exhibit, will be treated as any other piece of evidence by
4 the Trial Chamber.
5 Have you run out of work, Mr. Milne? I mean in terms of
6 tendering exhibits in the next few minutes.
7 MR. MILNE: Yes, Your Honour.
8 PRESIDING JUDGE RE: The decision on Witness 56 has been filed
9 but not distributed, so let's proceed with that one.
10 MR. MILNE: When Your Honour says "proceed," does Your Honour
11 want the summaries of the witness statements read? Very well.
12 PRESIDING JUDGE RE: Indeed.
13 MR. MILNE: The Trial Chamber will have at presentation queue
14 F3389, "Prosecution Renewal of Application Under Rule 158 in Respect of
15 Witness PRH056." There are, from the Prosecution, five witness
16 statements all declared admissible initially under Rule 156 with the
17 exception of parts concerning specific issues. That was in a decision on
18 a Prosecution motion dated 29 September 2017, filing number F2224. And
19 the Trial Chamber granted protective measures in an oral decision of the
20 17th of September, 2015. The Prosecution renewed its applications on
21 these statements but this time under Rule 158, and that was done on the
22 27th of October 2017.
23 The five statements, it may be easiest if I simply read onto the
24 record now the five that we seek, and they will begin, please, with
25 L0005303 to L0005318. These are not in chronological order because that
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 74
1 statement was not the very first but it was the 13th of April, 2005, and
2 18th of July, 2005. And might that please acquire Exhibit P02128.
3 PRESIDING JUDGE RE: Yes, that will be Exhibit P2128. And I note
4 from Legal Workflow the decision has now been distributed.
5 MR. MILNE: The next is 300142 to 300150, 7th July 2005. And
6 might this please be Exhibit P02129.
7 PRESIDING JUDGE RE: Yes, admitted as P2129.
8 MR. MILNE: The next, ERN 207605 to 207617 of the 5th of May,
9 2006. Exhibit number, please, P02130.
10 PRESIDING JUDGE RE: Yes, that will be admitted as P2130.
11 MR. MILNE: And the final one in this sequence with an ERN
12 60034933 to 60034986 was taken on the 7th to 8th of June, 2007,
13 Exhibit P02131.
14 PRESIDING JUDGE RE: Admitted as P2131.
15 MR. MILNE: I apologize. I may have said that was the last. In
16 fact the next is the last, which 60147225 to 60147249. This, on the
17 1st of July, 2010, Exhibit P02132.
18 PRESIDING JUDGE RE: That will be Exhibit P2132.
19 MR. MILNE: The witness statements taken collectively from
20 PRH056, the witness was able to speak about the history of the Abu Adass
21 family and of Ahmad Abu Adass. The witness described aspects of the life
22 of Ahmad Abu Adass, of how he studied until he was 21 and then he worked
23 at a computer company and a printing house; that he started to pray when
24 he was studying and he would pray at the El-Houri mosque at the Arab
25 university not far, a few minutes away from the Abu Adass home.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 75
1 According to the witness, Ahmad Abu Adass never drove a car as he
2 did not know how to drive. He had a computer but no internet
3 subscription. He never visited public internet cafes to browse the
4 internet, and he was never interested in politics.
5 The witness was able to speak about the description that Ahmad
6 Abu Adass had given of meeting a man named Mohammed in the mosque one
7 evening in late December 2004 or early January of 2005. The witness knew
8 that Ahmad had left home on the 16th of January and had told his family
9 that he was meeting Mohammed.
10 On the morning of 16th January 2005, following dawn prayer at the
11 mosque, Ahmad had left to meet with Mohammed. Ahmad Abu Adass did not
12 return home, but the witness was able to speak about telephone calls
13 received at the Abu Adass household during the following day, 17th
14 January.
15 The witness saw Ahmad on Al Jazeera in February 2005, and
16 commented that his face was much thinner than before, his beard was
17 styled differently, and he was wearing a turban on his head which he had
18 never done before. When Ahmad was reading the statement, the witness
19 noticed that his voice was low and not like normal.
20 Your Honour, with those numbers, the Prosecution will now be able
21 to complete the footnotes to the other reports. We are in the Trial
22 Chamber's hands on this. If the Trial Chamber wished to delegate the
23 responsibility for changing the MFIs to full exhibits to the legal
24 officers, we are content. If the Trial Chamber feels that it would be
25 more appropriate that be done formally in open court, again we will make
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1 ourselves available.
2 PRESIDING JUDGE RE: You're submitting a revised version, I take
3 it? Will it have a cover that says "Revised Version" or something like
4 that? A number 5 or something?
5 MR. MILNE: Well, it may well do, Your Honour. The change to the
6 cover is probably the least of our worries, but it will be made clear
7 that it has been updated. And we will notify all parties of the
8 amendments, which are simply to reflect the updated footnotes that now
9 have exhibit numbers and any -- if there are typographic errors, and it
10 will be nothing more than typographic errors that have been spotted in
11 one or two places, they will have a list of those. We do not propose to
12 put that as a separate annex or anything of that nature, provided
13 everybody is aware of what has changed.
14 PRESIDING JUDGE RE: We don't need a separate annex. But if you
15 could liaise with the Chamber's legal officers and the Registry about how
16 to do this. It may be we admit it with a .1 or a .2 number as the final
17 revised version. Although, you would be very optimistic to write "Final
18 Revised Version" as the title, wouldn't you?
19 MR. MILNE: I suppose we could call it the
20 absolutely-final-never-to-be-updated version. We have come a long way
21 and obviously a number of items have been picked up as we've gone along,
22 but we're as confident as we can be that everything now should be in
23 final format.
24 PRESIDING JUDGE RE: Thank you, Mr. Milne. We'll deal with it in
25 that manner.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 77
1 Yes, Ms. von Wistinghausen.
2 MS. WISTINGHAUSEN: Yes, Your Honour. I'm not really challenging
3 the accuracy of the summary. However, I'm stumbling upon paragraph 3 of
4 the summary, where it reads in the first sentence that:
5 "PRH056 was able to speak about the description that Ahmad Abu
6 Adass had given of meeting a man named Mohammed at the mosque one evening
7 in late December 2004 or" - this is how Mr. Milne interpreted the hyphen
8 today - "early January 2005."
9 However, when you look at the five witness statements, four of
10 which are relevant when you look at the timing that the Prosecutor chose,
11 late December 2004 or early January 2005, you will see that in
12 Exhibit P02128, the witness says:
13 "Ahmad told me that he had met Mohammed around December 2004 in
14 El-Khoury mosque ..."
15 In Exhibit P02129, he said about the start of January 2005 he
16 went to pray at dusk and he usually took ten minutes but he took longer.
17 And I asked him why he was late and he said that he had met someone at
18 the mosque.
19 In the witness statement with the Exhibit P02131, she says:
20 "This was about three weeks or one month before Ahmad left
21 home ..."
22 And in the witness statement with exhibit number P02132, she says
23 they met for the first time at least one month or one and a half months
24 before Ahmad's disappearance.
25 So if you look at these four witness statements, the timing could
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 78
1 be as early as the beginning of December until beginning of January, and
2 I just wanted to putting this clarification on the record. Thank you.
3 PRESIDING JUDGE RE: I've noted that.
4 Mr. Milne, I take it you don't want to respond to that? Okay.
5 Noted for the record your observations on the summary.
6 Mr. Aouini, we need to admit into evidence Exhibits 3D431, -433,
7 -436, and -437 marked for identification, which are call sequence tables
8 that you tendered and the subject of decision F3463, the 7th of December,
9 2017, "Decision Admitting Into Evidence Call Sequence Tables Tendered by
10 the Ayyash and Merhi Defence - 1D453, 3D431, 3D433, 3D436, and 3D437
11 Marked For Identification."
12 So as a result of that decision, those exhibits I've just
13 referred to will be received into evidence; namely, 3D431, -433, -436,
14 and -437 marked for identification.
15 Is there anything else we need to do with that, Mr. Aouini?
16 MR. AOUINI: [Interpretation] There is another MFI, a fifth MFI.
17 It's 3D435. These are maps associated to phone 980. So these are maps,
18 illustrative maps.
19 Additionally, there has been a change -- there's a change in the
20 ERN numbers.
21 PRESIDING JUDGE RE: Apologies, it was just brought to my
22 attention during the break and I had overlooked it. I've now found it.
23 Yes, I was going to ask the Prosecution if there is any objection.
24 Mr. Milne, Mr. Desalliers, that is 3D435, which is, it says, it's
25 in French, [Interpretation] "Illustrative map number 980, Green 061."
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1 [In English] No, maybe it's my French. [Interpretation] Green 71, not
2 61.
3 MR. DESALLIERS: Your Honours, we have no objection as
4 demonstrative purposes.
5 PRESIDING JUDGE RE: All right. Well, that's nice and simple
6 isn't it, Mr. Aouini? I can just admit it and we can move on.
7 We'll admit it into evidence. 3D435 marked for identification
8 will become 3D435.
9 MR. AOUINI: [Interpretation] Your Honour, I also wanted to
10 mention the correct ERN numbers. There has been a change in ERN numbers,
11 and I would like to mention that.
12 We had previously also mentioned that there has been a change in
13 the ERN numbers for the mentioned exhibits. If you wish, I can read the
14 numbers on the record.
15 With regards to 3D0431, the new and the correct ERN is 1DT3-8214
16 to 1DT3-8252. With regards to Exhibit 3D00433, the new ERN number is
17 1DT3, and the range is from 8318 to 8350. With regards to
18 Exhibit 3D00436, the new ERN number is 1DT3, and the range is from 8283
19 to 8317. With regards to the last Exhibit 3D00437, the new ERN number is
20 1DT3 from 8253 to 8282.
21 That was it, Your Honour. Thank you.
22 PRESIDING JUDGE RE: Yes, thank you very much. That's noted for
23 the record.
24 Ms. Bafadhel and Mr. Milne, I turn now to the issue of the
25 cross-examination of Witness 555. That's a former Prosecution
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 80
1 investigator, Mr. Quentin Mugg, which there are no protective measures.
2 The situation is that the Trial Chamber at the beginning of the
3 trial decided to admit his statement into evidence under Rule 155 without
4 cross-examination. The Sabra Defence sought reconsideration, and the
5 result was that they informed the Chamber they wished to cross-examine
6 Mr. Mugg on issues other than those in his statement, and his statement
7 related to --
8 MR. MILNE: Can I assist, Your Honour?
9 PRESIDING JUDGE RE: Was it video -- it was something to do with
10 the early investigation. I'm just trying to find it. I can't remember.
11 MR. MILNE: He produced the video footage from which stills were
12 taken coming from the Suleiman Frangieh tunnel of the vehicle which we
13 say was the bomb-laden Mitsubishi Canter travelling through. And there
14 were a series of stills obtained from the video system within that
15 tunnel. Mr. Mugg formally produced those.
16 PRESIDING JUDGE RE: Yes, I see. I'm looking at the transcript
17 of 20th of January, 2014, where it said:
18 "The witness statement describes still images from CCTV footage
19 obtained at the crime scene. His statement does not concern the acts and
20 conduct of the accused. The evidence is relevant and probative and meets
21 the requirement of Rule 155 and the relevant Practice Direction. The
22 Trial Chamber decided to admit the statement into evidence but without
23 requiring the witness to attend for cross-examination."
24 And that was at page 11 to 22 of the -- no, it wasn't. I can't
25 find it, but it doesn't matter.
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1 The Sabra Defence wish to cross-examine the witness on matters
2 not connected with the video stills but other matters connected to their
3 defence, so the Chamber made the decision some time ago that the witness
4 would be called for cross-examination.
5 To assist or to facilitate things, the Sabra Defence contacted
6 the witness with the assistance of the Prosecution and have taken a
7 statement from Mr. Mugg, which is dated 13th and 24th of November, 2017.
8 And the two interviewers, Mr. Geoffrey Roberts and Ms. Sarah Bafadhel,
9 who appear to be possibly placing themselves in jeopardy as finding
10 themselves as a witness in the case if something goes belly-up, which is
11 why in the English system we have an instructing solicitor who normally
12 takes these statements, as you will appreciate, Ms. Bafadhel, but be that
13 as it may, submitted the statement for tender into evidence under
14 Rule 155 in filing F3468 on the 8th of December, 2017, the Sabra motion
15 for reconsideration and for admission of evidence pursuant to Rules 154
16 and 155.
17 It's in two parts. It's seeking to tender Mr. Mugg's evidence
18 into evidence under Rule 155 and the statement of another witness, that
19 the -- under Rule 154 that the Chamber has already rejected previously.
20 So you're seeking reconsideration of that.
21 So we'll deal with that, the second one, separately, and we'll
22 await submissions from the Prosecution in relation to that.
23 Now, Mr. Milne, in our case management meeting yesterday, you
24 said the Prosecution would be objecting to the Chamber receiving that new
25 statement of Mr. Roberts, Ms. Bafadhel, and Mr. Mugg under Rule 155.
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1 Having reflected upon it overnight, does your objection still stand? If
2 it does, I'll let you know what we'll do. If it does and you don't wish
3 to receive it, we will treat the witness statement as if it doesn't exist
4 and Mr. Mugg can come and be cross-examined and the Defence can put all
5 the things which are in the statement to Mr. Mugg and he can give that
6 evidence or not.
7 MR. MILNE: Well, Your Honour, I should just preface what I say
8 with this: We're aware of the Trial Chamber's order that he should be
9 made available for cross-examination. We cooperated with the Defence.
10 We anticipated that at some stage he may well need to be called, and my
11 understanding is that he is readily available and could be called upon,
12 given some notice, to attend at court. That would cause us no problem.
13 The problem that we have with this is that the approach taken --
14 my learned friend needed to simply say: Please bring him. We wish to
15 cross-examine. Instead, they sought to put in a Rule 155 statement, most
16 usually for a witness in chief. And, indeed, 155 talks about the
17 possibility of a witness then being brought for cross-examination.
18 So whilst the Rules do not spell it out, they anticipate that the
19 155 process will bring somebody to court for the first time, effectively
20 bring them here for evidence in chief. This witness is already a
21 Rule 155 witness, because his statement's been read under that Rule. So
22 it doesn't require another Rule 155. So, to that extent, we would submit
23 this is rather pointless and potentially moot.
24 Now, this is a somewhat arid legal argument since nobody is
25 arguing that he could not be made available. What we are concerned about
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 83
1 here and the real nub of this matter, in my submission to you, is what
2 they are attempting to do with him. The Sabra Defence have failed not
3 once but twice to have the underlying statement, the statement of a
4 witness, admitted into evidence.
5 Having failed twice, the reconsideration they seek is basically
6 to try to go round that refusal. And now for the first time, their
7 argument is: Oh, we don't want this witness for the truth of the
8 contents of what they say. We just want Mr. Mugg to come here and repeat
9 what that witness said to him, and that way we can get around the
10 obligation of calling that witness, which is precisely what they sought
11 to do under Rule 154 previously.
12 It's still under the same Rule. Your rulings in relation to
13 statements coming in under 154 remain as before and so far intact, and
14 I --
15 PRESIDING JUDGE RE: Mr. Milne, if I could just interrupt you
16 there.
17 The Defence wish to have the evidence of the second witness
18 before the Chamber in some way or another. Getting it through Mr. Mugg
19 isn't particularly going to help. But if there is a Defence case, the
20 Defence, of course, may seek to -- well, they can call that witness, the
21 second witness, or -- again, under Rule 155, 156, or 158, and seek to
22 tender the witness's statement.
23 What is wrong with the Defence, as a precursor in the Prosecution
24 case, laying the foundation with Mr. Mugg, as they have done with other
25 witnesses throughout the Prosecution case? Isn't that the most
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1 convenient way of dealing with it? That is, putting aside -- putting to
2 one side --
3 MR. MILNE: Yes.
4 PRESIDING JUDGE RE: -- completely the reconsideration point. We
5 have no view on that at all. We haven't seen your submissions.
6 MR. MILNE: There is no issue that Mr. Mugg was one of the two
7 people who took this witness statement. One of the other people who took
8 the witness statement has already given live evidence before the Trial
9 Chamber and was never questioned about this.
10 So there is no issue he took the statement. The problem that we
11 have is an attempt to repeat what I'm afraid my learned friends forbearer
12 did many, many times before you, which is reading out sections of an
13 interview taken by an investigator, saying: "Did so-and-so say this?" to
14 which the investigator would say: "Yes." And then, Mr. Mettraux would
15 say, effectively: Well, you can take that as the truth of what was said.
16 And time and time again, I got plenty of exercise because I was
17 on my feet repeatedly pointing out that that is not the way that evidence
18 is placed before a trial chamber. It's a usurpation of the Rules of
19 Evidence and it's simply a waste of the Court's time.
20 PRESIDING JUDGE RE: Mr. Milne, Ms. Bafadhel comes from the same
21 bar as you. She would never repeat that mistake or basic error of
22 advocacy I'm sure. I'm sure she's going to stand up and say that
23 herself.
24 MS. BAFADHEL: I think I'm stepping into a little dangerous path
25 here.
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1 But I just -- I think the Prosecution's arguments, with respect,
2 are based on the misunderstanding that we are not relying on the truth of
3 the content of what the witness said. It's that it was said as part of
4 the investigation, and that what was done with this information and how
5 it was transmitted to the STL Prosecution, that's what we're seeking to
6 rely on it for.
7 And we put in the reconsideration to clarify that point
8 explicitly for the Trial Chamber. That it's not that the facts are
9 necessarily truthful and that it did occur, but that it was said as an
10 allegation at the time. And that, in our respectful submission, should
11 have been investigated.
12 PRESIDING JUDGE RE: So the point of cross-examining Mr. Mugg on
13 this is to demonstrate that there was a flawed investigation into this
14 aspect of the case against Mr. Sabra. Is that as far as you wish to take
15 it?
16 MS. BAFADHEL: Quite right, Your Honour.
17 PRESIDING JUDGE RE: What's the problem with that, Mr. Milne?
18 She's not falling it into the Mettraux trap, if I can call it that, of
19 asserting the truth of the contents via third-, fourth-, fifth-hand
20 hearsay.
21 MR. MILNE: What was said by the witness is of no value if it was
22 not true or potentially true. So she, with respect, is seeking to go
23 round this problem and to have her cake and eat it. She wants to be able
24 to say that this -- we don't rely upon the truth of the contents of this,
25 and yet you, the investigator, should have relied upon the truth of the
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1 contents of this. You should have explored it as being true.
2 Apart from anything else, it's an invalid exercise since they
3 have taken the statement from Mr. Mugg in which he says: "Look, I sat in
4 for this one interview. Essentially, I don't know what happened after
5 that because I wasn't part of the further investigation into it."
6 Now if the Trial Chamber is prepared to countenance a full
7 investigation into the investigation, then we can, if you wish, spend
8 several more months laying out the exploration of every blind alley, how
9 we closed each one of them down. But we have not sought to do that
10 because we do not regard that as the proper function of the Trial Chamber
11 or the proper function of a trial.
12 I can see why the Defence would wish to divert the process in
13 that direction, but it is not something that is a proper exercise of your
14 discretion.
15 PRESIDING JUDGE RE: Mr. Milne, aren't you being a little overly
16 restrictive there? You've been a defence counsel yourself. You know
17 it's a normal defence strategy to attack the methodology, processes of
18 the investigation, to say: Had you investigated in this line, you
19 wouldn't be indicting my client. You would have taken another route and
20 found the real culprits, et cetera.
21 Aren't they doing no more than that, saying that you should have
22 followed what was in that witness statement, which you took, made the
23 recommendation to your superiors or whatever. But you didn't, did you?
24 And therefore, the whole thing was flawed and has gone off in the wrong
25 direction and the wrong man is before, or here not before, the court.
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1 MR. MILNE: And as a Recorder of the Crown Court, I regularly
2 tell juries not to speculate on what they have not heard, which would be
3 my submission to you.
4 The problem is here that this is --
5 PRESIDING JUDGE RE: Mr. Milne, just for those who don't know
6 what a Recorder of the Crown Court is, it means a part-time judge, I take
7 it, or a QC who from time to time who sits as a judge in criminal trials.
8 MR. MILNE: That's correct, Your Honour, yes.
9 And the danger here is that essentially this is inviting
10 speculation on points that are not truly germane to the issue that you
11 have to decide. To suggest to a witness who cannot deal with it: "Oh,
12 this could have been explored further," when he can't say whether it was
13 or not, is a futile exercise.
14 Now if the witness, who is the underlying witness, comes to court
15 and says: "I know this was true and I can say this was true and I am
16 prepared to swear it was true," that would be one thing. But for an
17 investigator who was simply told: "Look, we've got the witness sitting
18 in the chair. Please go and interview the witness, find out what this
19 witness has to say, write it down, put it in a nice note, and bring it
20 back," the witness -- the investigator will ask questions, he may ask
21 around the topic, he will try to get as much detail as possible, but he
22 or she will not be able to say whether what he is being told is true. He
23 or she may not have the authority to make a decision as to whether it
24 should be carried further.
25 More importantly, he or she will not have, necessarily, the full
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1 picture, because those who control the investigation will be looking at
2 many different pieces. And if one has five, six, eight witnesses all
3 saying the same thing and one says something slightly different. Well,
4 one may look at that witness, one may explore the use of that witness,
5 but that would -- it's far more likely that a responsible investigator
6 will say: "When eight people tell me something consistently without any
7 obvious reason to lie and one says something different, and I have to
8 choose between them," a responsible investigator will say: "The
9 preponderance of the evidence goes in a particular direction and that is
10 the direction I should follow."
11 Now, any investigation - any investigation - no doubt, with the
12 benefit of hindsight, could be looked at and people could say: Well, we
13 could have explored this, we could have explored that. We might have
14 discovered something further, some further details along the way. Would
15 it have changed the final outcome? It would have to be something so
16 fundamental, so absolutely fundamental that had been missed.
17 And as I'm sure the Trial Chamber will be familiar, any
18 responsible organization tasked with the duty of investigation is likely
19 to have, essentially, a review, a post-mortem at the end of a major
20 investigation and say: What could we have done better, what did we
21 learn, what did we miss. But in this case, when we have presented large
22 areas of consistent, cogent evidence, to simply say -- essentially, it's
23 a bit like watching a man wash windows and standing behind and saying you
24 missed a bit. I mean, yes, they can do that but it doesn't prove that
25 the job has not been done properly.
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1 And individual witnesses like this are not going to assist you.
2 If my learned friend thinks that there is some truth in this, if they
3 think that they can demonstrate that this was true and not what we
4 assert, then obviously the witness can be traced, the witness can be
5 sought, can be brought to court and give evidence. But having an
6 investigator say: "Well, the witness said this to me and we put it on
7 the record and we moved on," it doesn't assist you in any way at all.
8 Now, Your Honour, we will, as far as the reconsideration is, we
9 will put submissions in, we will put written submissions, because we say
10 the position has changed on this. There was no suggestion hitherto that
11 it was not for the truth of its contents. That appears to be a shift in
12 position simply because they failed in the direct approach and are now
13 taking the indirect one. And that is what we are -- we feel you should
14 be alive to and you should be wary of.
15 [Trial Chamber confers]
16 PRESIDING JUDGE RE: Ms. Bafadhel, we don't need to hear from
17 you. The Chamber made an order in January 2014 for the witness to attend
18 for cross-examination. The Prosecution hasn't asked us to reconsider
19 that order. The order still stands. The witness may attend for
20 cross-examination. We won't be receiving the Rule 155 statement. The
21 Prosecution objects. If you wish to cross-examine the witness about
22 anything, you may do so.
23 Now we're warning you, from what Mr. Milne has said, there may
24 well be objections to the subject matter. But this may not be the only
25 matters you wish to cross-examine the witness on. I don't know. So
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1 we'll leave it to you.
2 The Chamber confirms its order of 20th of January, 2014, that
3 Mr. Mugg attend for cross-examination. And when he comes, you can
4 cross-examine him and the Prosecution can object to the questions. It
5 may be you get no further than one question, or it may be that you have a
6 full day. I don't know.
7 MS. BAFADHEL: I'm grateful, Your Honour. Considering the
8 fundamental line of inquiry that we have as to who Mr. Abu Adass left
9 with, I think we may have quite a lot to deal with him on that date.
10 MR. MILNE: Your Honour, that leaves perhaps hanging in the air
11 the question of what happens to this motion, because you've indicated you
12 will not receive the 155 but it is principally a 154 reconsideration.
13 Are you seeking a written response from the Prosecution to the
14 Trial Chamber, or are you inviting the Defence to withdraw that
15 application?
16 PRESIDING JUDGE RE: The motion, F3468, of the 8th of December,
17 2017, seeks to tender into evidence: A, the statement of Quentin Mugg
18 under Rule 155; and B, the statement of another witness under Rule 154.
19 The Chamber has already ruled against receiving the evidence of the
20 second witness, but the Defence have put out an application for
21 reconsideration.
22 MR. MILNE: Yes.
23 PRESIDING JUDGE RE: That stands.
24 MR. MILNE: Okay.
25 PRESIDING JUDGE RE: The Chamber will not, as I've just said, not
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1 in a particularly elegant way, will not receive the statement of Mr. Mugg
2 under Rule 155. We'll put that into -- whatever position we formalize,
3 we'll add that to it. We'll note what I've said today.
4 So Mr. Mugg shall attend for cross-examination. And, yes, the
5 Prosecution should -- if you want to, you should respond to the
6 application for reconsideration of the decisions relating to the
7 non-admission of the statement of the second witness. That's a separate
8 matter.
9 MR. MILNE: Thank you. That's clear. And we will respond in
10 writing to the second part; that is, the reconsideration.
11 MS. BAFADHEL: Your Honour, just to --
12 PRESIDING JUDGE RE: Just because the first part is dealt with.
13 MR. MILNE: Yes.
14 PRESIDING JUDGE RE: The Rule 155 has disappeared.
15 Yes, Ms. Bafadhel.
16 MS. BAFADHEL: Your Honour, just to reiterate our previous
17 request, which is in light -- especially now in light of your decision as
18 to PRH055. We would request a shortened deadline for a response on
19 this - especially since the Prosecution seem to have formulated its
20 position in some detail already - for a shortened deadline for next week,
21 allowing also some time to reply, so that we're not having to deal with
22 the recess time issues. And so -- again, so that we can resolve this so
23 that Mr. Mugg can attend sometime in January.
24 PRESIDING JUDGE RE: Well, I'm not seeing the connection. The
25 Chamber -- the recess finishes on the -- was it the 5th? So the first
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1 week of January, starting on the 8th, is the week when we can hear
2 Mr. Mugg's evidence. So sometime later in that week. We'll set a date
3 well in advance.
4 Why does the matter of the reconsideration matter? You can still
5 put the statement to Mr. Mugg whether or not it's received into evidence.
6 We don't need to have formally determined your reconsideration. We may
7 well have. But it's not a precondition, as far as I can see, for hearing
8 Mr. Mugg, because if part of your cross-examination is related to the
9 fact that he took a statement from another witness, you can put that to
10 him and suggest to the witness, Mr. Mugg: "Well, this is what Witness X
11 said to you and what did you do about that?" or whatever you want to put
12 to him. You don't -- that witness -- that statement doesn't need to have
13 been admitted for you to do that.
14 MS. BAFADHEL: But, Your Honour, it would assist to have a
15 decision on it in order to have a defined framework as to our entire
16 cross-examination with the witness. I leave it to you, Your Honour, but
17 the Sabra Defence would personally like to have a decision on the matter
18 before calling Mr. Mugg or having him appear for cross-examination.
19 PRESIDING JUDGE RE: Well, Mr. Milne, the Chamber doesn't see any
20 reason to change the time. Do you want to file something earlier?
21 MR. MILNE: No, thank you. We'd like the time that we are
22 entitled to.
23 PRESIDING JUDGE RE: Ms. Bafadhel, logistically it may not be
24 possible to get a decision. There is a judicial recess and it won't only
25 be the counsel who will be taking a short break.
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PUBLIC Official Transcript Evidentiary Matters (Open Session) Page 93
1 Mr. Aouini, you said you wanted to take a few minutes today to
2 say something. The floor is yours.
3 MR. AOUINI: [Interpretation] Your Honour, honourable members of
4 the Bench, I wanted today to, and in this public hearing, discuss a
5 procedural matter that is extremely important for the Merhi Defence team.
6 We, in the Merhi Defence team, we consider that we are about to
7 suffer a considerable prejudice that will be unavoidable as a result of
8 the blatant violation of the principles of just and fair proceedings.
9 Unfortunately, we were asked not to touch upon these matters during the
10 public hearing and not to explain the reasons behind this prejudice that
11 is affecting the Merhi Defence team, because there are a number of
12 elements that we would like to discuss and present with regard to the
13 prejudice that we are suffering as a result of the proceedings and the
14 violation of the basic principle of these proceedings.
15 I would like to discuss a little bit the course of the
16 proceedings in this case. Today and almost four years after the start of
17 the trial, which the Prosecutor based on investigations and inquiries
18 that lasted for more than ten years, and after the Prosecution has almost
19 reached the end of its case, and after he summoned all of the witnesses
20 on their witness list, the Prosecution is trying today to open a new case
21 that will turn everything and turn this case upside down.
22 The trial started four years ago on the basis of an indictment --
23 so the trial started four years ago on the basis of an indictment which
24 attributed two phones to Mr. Merhi. We, in the Merhi Defence team,
25 relied on this indictment and its contents to prepare our Defence
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1 strategy. And we've conducted our research, our investigations, and our
2 cross-examination accordingly and according to the contents of that
3 indictment.
4 After all this, the Prosecutor comes today and under the pretext
5 of presenting additional, complimentary, and rebuttal evidence, because
6 sometimes we were told that this evidence is a rebuttal evidence to the
7 evidence that we have submitted as a Defence team. The Prosecutor is
8 trying today to present us with new material facts, [Redacted]
9 [Redacted] But there is a number of
10 new information and evidence that were presented to us by the
11 Prosecution.
12 This new information, Your Honour, is not simply rebuttal or
13 complimentary evidence. These are essential material facts that are
14 being presented for the first time to your Chamber after the Prosecution
15 has presented his case and after they have presented all of the witnesses
16 and exhibits as per their witness and exhibit lists.
17 Since the start of the trial, we have been trying to defend the
18 rights and interest of Mr. Merhi with regards to two phones that were
19 allegedly attributed to him, the Green and the Purple Phones, two phones
20 that are attributed by the Prosecution to Mr. Merhi indirectly. They are
21 not attributed to him directly but indirectly. But today the Prosecution
22 presents us with two additional phones and additional information.
23 Without going into the detail of this information, but there is new
24 information that are being presented to us, new material facts.
25 All of this opens new doors and paves the way for new allegations
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1 and maybe accusations. This new information -- and when I talk about
2 this new information, Your Honour, I repeat I will not go to the details
3 and talk in detail about this information, but your Chamber is well aware
4 of these new material facts. So this new information was previously
5 inexistent in the indictment, although these are considered to be
6 essential material facts in any trial that relies on the legal basis of
7 fairness and equality of proceedings.
8 The Prosecution is -- presenting us with this new information at
9 this really late stage of the proceedings and the trial undermines the
10 integrity of the entire proceedings, the previous proceedings, because
11 there were no measures that were taken to prevent the prejudice that
12 might affect the Merhi Defence team.
13 Your Honour, honourable members of the Bench, preparing the
14 Defence case is done on the basis of the content of the indictment and on
15 the basis of the nature and extent of the accusations. These must be
16 well known to the Defence from the start of the trial and not at the very
17 final stages of the Prosecution case.
18 Today, the Defence is presented with this new information - new
19 phones, [Redacted], without going into the details of this matter -
20 and the Prosecution is continuing his investigations in this regard.
21 Therefore, the Prosecution is trying to open a new case while completely
22 disregarding the law and procedures.
23 Lest it not be forgotten that we are representing an accused in
24 an in absentia trial, and in such trials lawyers are guided by two
25 constants, both of which must remain reliable and infallible in order to
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1 safeguard the very legality of the trial. And I mean by that: First,
2 what is included in the indictment; and second, the fairness of the
3 proceedings. The indictment and the fairness of the proceedings. So the
4 fair and just proceedings.
5 The Prosecutor's position never fails to both underimpress and
6 amaze us. He is seeking to present this information as being simply
7 peripheral and that are not at the very heart of this case, while the
8 Prosecution's entire case and every expert called by the Prosecution -
9 Philips, Donaldson, and Platt, especially those three - have constantly
10 asserted that the crux of the case, the Prosecution case is based on
11 telephone attribution. And since the telephone attribution the anonymous
12 mission or covert phones is a virtually impossible process, basically the
13 investigation was based on attributing these phones by linking them to
14 other personal telephones. And thus, these anonymous phones would
15 definitely be attributed to known individuals. And this is what the
16 Prosecution is trying to do today - and again, I don't want to go into
17 all the details - in addition to the SMS contents and all of this
18 information.
19 All of these -- all of this information are not peripheral
20 information. These are part of the main and principal material facts
21 against Mr. Merhi. The Prosecutor tells you that he performed every due
22 diligence to gather the information when they came to know about the Grey
23 Telephone and to explain that in his late application. However, they
24 totally missed the point. The due diligence test holds for the
25 Prosecution investigation phase in order to uncover this phone.
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1 The Prosecutor had all the call records for all of Lebanon for
2 nearly ten years, and due diligence was not used in order to identify the
3 phones that had been used before and after the Purple 231 phone had been
4 used, and no -- or the efforts of the Prosecution that -- so his prompt
5 action once this evidence fell spontaneously into his lap cannot equate
6 with due diligence. And I think Your Honours know that quite well.
7 Your Honours, honourable Bench, the Prosecution or the Prosecutor
8 had announced the closure of his case by last Easter. And on several
9 occasions, the Prosecution and the Prosecutor repeated that Mr. Donaldson
10 will be the final witness for the Prosecution. Unfortunately, the
11 Prosecutor today is seeking to present new material information. And
12 again I repeat that I do not wish to go into the details of this
13 information.
14 And looking into this evidence -- because it actually requires on
15 our part conducting investigation and inquiries in order to defend the
16 interest of our client and to fulfil our professional obligations to
17 defend Mr. Merhi. So looking into this new evidence could even require
18 until next Easter, Easter 2018 if we actually want to look into the two
19 new phones that are being presented in addition [Redacted]
20 [Redacted].
21 What is also more unfortunate, Your Honour, is that the
22 Prosecutor is seeking to introduce this information in a manner that is a
23 blatant violation of the two main referential points that preserve the
24 legality of these proceedings, and I mean by that: The content of the
25 indictment and insisting or abiding by the highest principles of fairness
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1 and justice.
2 Your Honours, let me be brief. The Merhi Defence counsel is
3 expressing its reserves and submitting legal complaints about the
4 fairness and the integrity of the current proceedings against Mr. Merhi,
5 and that is why we respectfully ask the Chamber to respect the highest
6 principles of just and fair proceedings.
7 Your Honours, the matter is in your hands. I leave it in your
8 hands. And our written submissions will be submitted to clarify further
9 the matter, and I hope to submit those by the end of today. Thank you,
10 Your Honour.
11 PRESIDING JUDGE RE: Thank you, Mr. Aouini. Is there anything
12 else today?
13 Ms. Bafadhel and Mr. Milne, is there any chance of reaching
14 agreement overnight?
15 MR. MILNE: Your Honour, the statements that are advanced on
16 behalf of the Sabra team for Mr. Ramadan run some 48 pages. Therefore,
17 reading the summary and trying to divine where the individual parts come
18 from is a rather longer process than could be managed over lunch. We
19 should manage that overnight.
20 As regards the ten-page schedule that we were presented with, we
21 have some comments upon that which we will communicate to the Defence
22 this afternoon and they will have them in time for tomorrow.
23 Is the Trial Chamber minded to resume here tomorrow?
24 PRESIDING JUDGE RE: At 10.00 a.m., yes.
25 MR. MILNE: Thank you.
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1 PRESIDING JUDGE RE: Ms. Bafadhel, you have given us a large, I
2 think ten pages, of a list of documents the Chamber has decided, between
3 the 25th of September and the 30th of November at least, that it would
4 admit into evidence. The Prosecution and the LRV before have provided
5 schedules -- or, sorry, indexes with exhibit numbers, proposed exhibit
6 numbers. It would be very helpful if you could do the same. There may
7 be a shortcut method of admitting the evidence. You'll have to
8 coordinate with the court officers to do that.
9 MS. BAFADHEL: We can certainly --
10 PRESIDING JUDGE RE: That is, to reserve some numbers.
11 MS. BAFADHEL: We can certainly deal with that this afternoon.
12 PRESIDING JUDGE RE: What about the summaries in relation to
13 Witness 056? The ones we told you about yesterday. The four witness
14 statements we were going to admit into evidence or we will admit into
15 evidence. When will you have a summary of those statements for the
16 Prosecution to scrutinize?
17 I don't want to come back to court tomorrow morning and have
18 Mr. Milne or another Prosecutor say: "Oh, look, we only got them five
19 minutes ago when we were in court."
20 MS. BAFADHEL: Your Honour, it was circulated at 1.00 p.m., so
21 the Prosecution should already have it.
22 PRESIDING JUDGE RE: Good. I'm pleasantly surprised. Thank you.
23 Mr. Milne, have you looked at it? Has anyone looked at them?
24 You've had, oh, three and a half hours.
25 MR. MILNE: In between doing all the other jobs, Your Honour, not
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1 in any great detail. But they will be looked at overnight.
2 PRESIDING JUDGE RE: We would very much appreciate if some
3 consensus or agreement can be reached before court so we don't have
4 in-court disputes about whether the summaries are accurate or not as
5 we've had today.
6 Is there anything else we need to deal with today? We'll adjourn
7 until tomorrow, when we'll complete the reception of evidence for the
8 Sabra Defence.
9 --- Whereupon the hearing adjourned at 4.32 p.m.
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