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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 Thursday, 28 September 2017 - [Trial Hearing]
9 [Open Session]
10 --- Upon commencing at 10.03 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'll go to the evidence of
15 Mr. Donaldson in a moment.
16 Appearances, I note Mr. Desalliers, Ms. Carrier-Desjardins, and
17 Ms. De Bruir appearing for the Prosecution; Mr. Haynes is for the
18 Legal Representatives of Victims; Mr. Hannis for Mr. Ayyash; Mr. Khalil
19 for Mr. Merhi; Ms. von Wistinghausen for Mr. Oneissi, and Mr. Young and
20 Ms. Bafadhel for Mr. Sabra. There are also two representatives of the
21 Defence Office in the court.
22 Good morning, Mr. Young. You're on your feet already.
23 MR. YOUNG: Good morning, Mr. President.
24 PRESIDING JUDGE RE: Does that mean you've wrapped up your
25 cross-examination?
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 2
1 MR. YOUNG: If only. If only. If only. But we're nearly there.
2 Your Honour, there is a -- Your Honours, there are very important
3 preliminary matters I'd like to raise, please, if I may, just briefly,
4 just to update Your Honours on two matters.
5 Firstly, Your Honour will remember making the order in relation
6 to translations in relation to the 018 texts, which we were grateful for.
7 I wanted to, if I may, just to update you on that. And secondly to -- to
8 tell you where we are in relation to the 24 witnesses. I'm going to
9 propose a hopeful -- hopefully a sensible solution. And then I -- I
10 think Mr. Desalliers wants to make a point after that.
11 Your Honour, in relation to translations first --
12 PRESIDING JUDGE RE: Mr. Young, pause. Our court reporter is
13 suffering.
14 MR. YOUNG: Ah.
15 PRESIDING JUDGE RE: Could you just please slow down.
16 MR. YOUNG: Yes. Your Honour, the situation is this: That in
17 relation to translations, following Your Honour's order, or direction, on
18 Monday this week I understand the Prosecution disclosed a -- what were
19 called newly completed translations. There was no OTP letter dealing
20 with that as you normally have, but the metadata read: "Disclosure of
21 newly completed translations."
22 Your Honour, the situation is that we requested the same day to
23 see the originals, dating back apparently to 2011, and on Tuesday this
24 week we received -- we -- sorry, we requested on Monday the originals.
25 On the Tuesday we received what purported to be to the 2011 translations,
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 3
1 and I have a copy of that now. And it's fair to say they're in a form
2 where in relation to the -- the texts where there was said to be names,
3 the names are in bold and highlighted. So that's a relevant piece of
4 information given my cross-examination.
5 So I'd like to revisit Mr. Donaldson for five or ten minutes just
6 on that. I can deal with it very quickly.
7 In relation to the second point, which is the 24 -- forgive me,
8 the 24 -- the 24 named persons who were questioned on 018. Your Honour,
9 can I just put our position very shortly. In relation to these
10 24 witnesses, the Defence will not seek admission at this stage in the
11 light of the Trial Chamber's decision of the 25th of September. However,
12 the Defence have already notified the Trial Chamber of its intention to
13 seek leave to appeal of this decision. And if granted, and if the
14 eventual appeal is successful, the Defence will thereafter seek admission
15 of these statements.
16 In the meantime, Your Honour, as a compromise -- and can I ask
17 your learned legal officer to hand you some document, it's a one-page
18 document, which has been given to the Prosecution yesterday. If that
19 could please be handed up. Yes.
20 So instead of seeking to deal with 24 different witness
21 statements and then cross-examining on propositions and content,
22 Your Honours, I thought might be a sensible way to ask just a few generic
23 questions and deal with it in a space of five -- five minutes, hopefully.
24 And so we set out there the 24 named witnesses, and I'm having that
25 uploaded as a confidential aide-memoire of 24 names as we speak. And I
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 4
1 hope that might be a sensible alternate course which is faithful to the
2 Trial Chamber's decision in relation to witness statements. So that's
3 my -- that's what -- that's the update.
4 Your Honour, in relation --
5 PRESIDING JUDGE RE: Mr. Young, it's not actually 24. It's 20
6 because four of them are already admitted into evidence; is that right?
7 MR. YOUNG: I'm sure Your Honour is right. Yes, Your Honour is
8 right. So it's 20. I think it's probably from number 5 -- 6 to 24, I
9 think.
10 PRESIDING JUDGE RE: Numbers 2, 3, 5, and 24 already have exhibit
11 numbers.
12 MR. YOUNG: Well, yes. So I thought it best to describe it as a
13 confidential aide-memoire. There was never an intention to list the
14 names. We -- we explained a while ago we would never seek to list the
15 names in public. It was just to make a point in relation to the purport
16 of what comes from that body of evidence, and I think I can do that in
17 five or ten minutes. So I hope that's a sensible suggestion.
18 In relation to translations, given that we have the now disclosed
19 apparent original version, then I've -- I've asked for that to be
20 uploaded now. So I hope that's been done as we speak.
21 Finally, Your Honours --
22 PRESIDING JUDGE RE: Mr. Young, before you go on, let's just take
23 it a step further. These 20 witness statements or the propositions
24 within them, what's to stop you -- or if you're going to cross-examine on
25 propositions within them, it's up to you, but it probably would assist if
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 5
1 you gave the source of the information with an ERN so that we don't lose
2 it. But as you appreciate, you don't have to, in cross-examining,
3 provide the source of your information, but it's up to you.
4 MR. YOUNG: I've -- I've tried to do. I think I'll -- I'll --
5 with respect, I'll leave it as it is. All the ERNs are there. I think
6 I'll leave it there with some generic questions.
7 PRESIDING JUDGE RE: Mr. Young, what -- you said you wanted to
8 seek certification for interlocutory appeal in relation to the
9 Trial Chamber's decision not to admit witness statements under Rule 154,
10 which is the document provision as opposed to the Rule 155, 156, and 158,
11 which are the witness statement provisions.
12 Hypothetically, what if the Chamber is against you on appealing?
13 Where does that leave your cross-examination? Given that even -- even if
14 you successfully -- even if we grant you certification and you appeal,
15 Mr. Donaldson will be long gone by the time that we get any decision by
16 the Appeals Chamber. I think the last one, which didn't involve the
17 death of Mr. Badreddine, I think took four months to get a decision.
18 That was Mr. Nashabe. It does take a long time to get a decision on a
19 Trial Chamber decision from the Appeals Chamber.
20 MR. YOUNG: Well, as always, that is an excellent question. May
21 I have a little time to reflect? I have to say, I've been -- as I've
22 been rather engaged this week, I haven't, I have to say, had a chance to
23 go through your decision with -- with the detail I like. Others have
24 been dealing with that aspect of it. But I take on board what you say.
25 For my purposes, it would be -- I would be happy to proceed in
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 6
1 this short way given what you've indicated.
2 Your Honours, the third point I leave to Mr. Desalliers, save to
3 say I understand he would like to have access and inspection of all our
4 Defence computers, and I've got a response I will be giving him in due
5 course because we've declined the invitation for the reasons I'll set out
6 when I hear what he says.
7 MR. DESALLIERS: If I can reassure my learned friend, the
8 Prosecution is not asking for access to the Defence's computers. But if
9 I can get to that point directly, Your Honours.
10 Briefly said, there were subscriber records that are Defence
11 documents that were put to Mr. Donaldson during the course of the
12 cross-examination from the Sabra Defence. And we have -- well, the Sabra
13 Defence requested full exhibit number for these documents. We have asked
14 time to consider these documents fully, and we have made the request to
15 have access to the CD which is the source of the information of -- of the
16 information transmitted to the Defence by MTC, now Touch. So this was
17 simply a request for inspection according to Rule 112.
18 The Defence's position in relation to that request was based on
19 the letter of the Rule, which refers to "the end of the Prosecution's
20 case, following a Defence election to present its case" --
21 PRESIDING JUDGE RE: Mr. Desalliers, you'll have to wait then,
22 won't you?
23 MR. DESALLIERS: Well, Your Honours, if the Prosecution is not in
24 a position to inspect the underlying information that served as a basis
25 for the Defence, because this is Defence-constructed material, if the
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 7
1 Prosecution cannot have access to it, if it's too early, then it's too
2 early to tender it, plain and simple.
3 PRESIDING JUDGE RE: Mr. Desalliers, it's too early to invoke
4 Rule 112. That's the only point. Do you have another application? If
5 you have another application that the Defence -- I'm thinking aloud here
6 because it's taken me by surprise, that the Defence produced this
7 material, you'd have to provide some sort of authority. Our Rules don't
8 have the same provision as the ICTY's rules in relation to -- oh, I'd
9 have to look back at them. Or an application that the Defence provide
10 the material to the Chamber, for example. Although, how we're supposed
11 to go through the MTC raw material is a different matter without the
12 necessary technological expertise to extract the call data, the call
13 sequence tables, et cetera.
14 So why don't you think about your application? Because at the
15 moment, the status is the document is marked for identification. So your
16 position is preserved.
17 MR. DESALLIERS: It is, Your Honour. And we are simply trying to
18 put in the effort to understand fully the evidence that is not announced
19 as being intended to be used but it is tendered, and what was requested
20 was a full exhibit number. So now is the time to do these verifications,
21 not after the evidence is admitted.
22 So, Your Honours, if that is the position of the Chamber, we are
23 guided. But that will certainly inform us in our position as to whether
24 or not we can consent to these exhibits being tendered into full evidence
25 at that stage.
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 8
1 PRESIDING JUDGE RE: All right. Well, Mr. Desalliers, I just
2 point out Rule 112 that you invoke before, (A), it says: "At the end of
3 the Prosecution's case ..." It's not our position. It's just what the
4 Rule says. And you're not at the end of the case yet.
5 MR. DESALLIERS: Yes.
6 PRESIDING JUDGE RE: And it says:
7 "... following a Defence election to present its case, within the
8 time-limit prescribed by the Pre-Trial Judge or the Trial Chamber ..."
9 So it clearly envisages, as the rules where it comes from at the
10 ICTY, the Prosecution closes its case, any -- at ICTY it was Rule 98 bis,
11 here it's Rule 167, applications or judgements -- it wouldn't be a
12 judgement decision as determined, and then the Defence has to elect to
13 call a case, there is a timetable prescribed, they present an exhibit
14 list and a witness list, and that's when you make your application under
15 Rule 112 if they don't do it.
16 But, look, I'll turn to Mr. Young and I'll try and reason with
17 him.
18 Mr. Young, what's the impediment to providing the Prosecution
19 with the CD you obtained from MTC Touch if it's just the raw call data
20 records or whatever?
21 MR. YOUNG: Your Honour, the position is we received one Excel
22 document. The Prosecution have it. The Prosecution have the entire
23 chain of custody. They have the original from which they can check the
24 properties, the author, the last date modified. There is no legal basis
25 at all for this. And I -- I really don't like the insinuation that lies
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 9
1 behind it.
2 More so, it's very important that Your Honours know, I have the
3 correspondence from the OTP in front of me, it's much more than
4 inspection they're seeking, and I would like to indicate what they are
5 seeking. They are seeking, in addition to inspection, details of the
6 steps taken to create the extracts, including the measures taken to
7 ensure an extract is a full and complete extract from the original Excel
8 file.
9 Further, the OTP, as we understand, requests information
10 detailing what measures have been taken to ensure the integrity of the
11 CD, its contents and related metadata has been obtained and has not been
12 changed in any way.
13 This is what they are seeking. It's much more than inspection.
14 It's really outrageous, and the insinuation would seem to be that the
15 Defence and the Lebanese authorities are in some way colluding. I really
16 do not like the insinuation behind it.
17 PRESIDING JUDGE RE: Fair enough. But as we noted before, the
18 burden is on the party which is presenting evidence to show that it's
19 relevant and it has probative value. So you've got to demonstrate the
20 probative value of the evidence. And in one sense the Prosecution,
21 which, of course, bears the burden of proving its case beyond reasonable
22 doubt, has been put to proof quite strictly by the Defence in relation to
23 similar -- similar records. So there is -- it goes to the reliability of
24 the information. The Defence does have a burden to show that it's
25 reliable.
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 10
1 So in one sense the Prosecution is doing no more than asking the
2 Defence to show to the requisite standard that the information is
3 reliable.
4 Now, it -- I'm not -- I'm not judging it. I don't know. I
5 haven't seen the information. But I'm just saying procedurally that's
6 the way it appears from someone sitting here and hearing this for the
7 first time. It could be if you provide us with the -- this chain of
8 custody information we're in a better -- better position to deal with it
9 and the Prosecution can then respond to it, as we would with the
10 Prosecution in attempting to tender call data records or call sequence
11 tables or any other information they've obtained from Lebanon or
12 anywhere. That's all.
13 MR. YOUNG: We're more than happy to provide to you the chain of
14 custody. We will provide to you, if you seek that information, what we
15 have. But with respect, as I understand it, the test is -- the test
16 is -- yes, I'm -- I -- as I understand it, the test is prime facie
17 reliability. And if you recall when we dealt with it, I think you, your
18 good self, Your Honour, Mr. President, I think commented or opined they
19 appear to be prime facie relevant.
20 So I understand Rule 20(A) has already -- perhaps my co-counsel
21 could just help on that.
22 MS. BAFADHEL: Just to add, Your Honours, as Mr. Young suggested,
23 we would, of course, be happy to provide the contents to the Chamber.
24 But just to note that the responses were received in relation to the
25 Trial Chamber's order under Rule 20(A) on the 31st of March, 2014. They
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 11
1 were listed in Annex C. So my understanding was the -- they would have
2 gone through the Chamber -- through the Registry via the Chamber before
3 they got to us.
4 We were in lengthy discussions with the Chamber and the Registry
5 at the time, so in that sense you have already seen the contents. Again,
6 we can provide them again. This isn't similar to the Prosecution records
7 that they received from MTC, as Mr. Young indicated. It's literally a --
8 one Excel document that we did provide. We sent the original by e-mail,
9 the Excel. We just didn't send the CD to them. So they can, as
10 Mr. Young indicated, check the properties, verify who last modified it,
11 who authored it, and so forth.
12 PRESIDING JUDGE RE: All right. But appreciate our difficulty,
13 without seeing the material, it's a bit hard to rule in the abstract. I
14 appreciate you're saying it's come from Lebanon in response to the Trial
15 Chamber's order to Lebanon to cooperate.
16 MR. YOUNG: Your Honours, you will have it. We will send it to
17 you today.
18 PRESIDING JUDGE RE: Any chance of starting with the witness?
19 Yes, Mr. Desalliers. We've been here 20 minutes. We haven't --
20 it's like yesterday.
21 MR. DESALLIERS: Yes, Your Honour, I -- it would be difficult for
22 me not to say in one word that there is no insinuation. We are simply
23 applying the standard that was applied to the Prosecution. So I wanted
24 this to be put on the record.
25 PRESIDING JUDGE RE: I said that.
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PUBLIC Official Transcript Procedural Matters (Open Session) Page 12
1 MR. DESALLIERS: Yes, thank you very much.
2 And I want to come back to this issue of the 20 or 21 witnesses,
3 because I have to say that I really don't understand what the Defence --
4 what is the goal of the Defence? Is it to read in summaries but not
5 asking questions to Mr. Donaldson? I simply fail to understand what is
6 the objective of the Sabra Defence in relation to these witnesses.
7 PRESIDING JUDGE RE: All right. Is that the legal test,
8 Mr. Desalliers, is understanding what's going to happen or not? I don't
9 know what's going to happen either. But let's wait and see.
10 MR. DESALLIERS: Very well.
11 PRESIDING JUDGE RE: Judge Nosworthy said we'll apply the
12 wait-and-see principle. We may all be educated.
13 The witness, please.
14 [The witness takes the stand]
15 PRESIDING JUDGE RE: Good morning, Mr. Donaldson. We've kept you
16 waiting again with procedural matters.
17 Mr. Young, can you give us some sort of roadmap and estimate?
18 MR. YOUNG: Yes, certainly.
19 Your Honours, I'm -- I have just one matter which will take five
20 minutes to deal with in relation to yesterday. Then I'm going to move on
21 to deal with 546 in a general way, as I focused on the texts. That
22 should take maybe ten minutes or so. Then I'd like to just ask some
23 questions on persons that were questioned in relation to the 018 number.
24 At that stage, I'd like to return very briefly to deal with a matter to
25 deal with some texts in relation to a new translation. Once I've
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 13 Cross-examination by Mr. Young (Continued)
1 finished that, then I can -- I'm really moving towards the -- the
2 penultimate section. I hope that helps.
3 WITNESS: ANDREW DONALDSON [Resumed]
4 Cross-examination by Mr. Young: [Continued]
5 Q. So, Mr. Donaldson, forgive me. I'm going to try and wrap up a
6 number of different, short, discrete issues straight away.
7 If I may, can I just deal with a matter, though, that you raised
8 yesterday, just for the sake of completion, because you may remember,
9 sir, that you pointed out, when I was asking you some questions, that --
10 about -- you pointed out that the MTC, forgive me, subscriber information
11 we received through the RFA response lacked activation/cancellation
12 dates, and I believe you suggested that the Defence was being selective
13 for not cross-referencing the MTC subscriber databases that we had access
14 to.
15 Now in relation to that, for what it's worth, helpful or not,
16 yesterday a check was done after court on the MTC subscriber databases
17 provided by the Prosecution, and I suggest that in them, as it stands now
18 in 2017, the two numbers subjected to the two documents, 5D403 MFI and
19 5D398 MFI, do not appear in these databases. So for the sake of
20 completeness, I'm clarifying that position. And in -- invite you to
21 comment if you see fit.
22 A. Yes, thank you for having those checks made. I made the same
23 checks at lunchtime. And we can both agree, then, that these numbers
24 could not have been relevant prior to 2010. So that is a date context
25 that wasn't afforded to me yesterday, so I thank you for sharing that
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 14 Cross-examination by Mr. Young (Continued)
1 today.
2 Q. Well, my pleasure, Mr. Donaldson. I'll move on.
3 May I just turn now -- let's leave telephone numbers and move on
4 to the 546 number. I'm sorry to keep -- to move back to something I
5 started and then moved away from. But you recall the 546 number was what
6 you described as a follow-on number, the sort of middle number of the
7 three. And if you remember I questioned you about SMS to do with 546.
8 Do you recall that, sir?
9 A. Yes.
10 Q. I'll try and deal with this very briefly. Just to summarize,
11 the -- perhaps the main points. We went through the F -- sorry, the 546
12 texts. Every one, if you recall. And we concluded or we're in -- we're
13 on the same page on this, that the text was signed off by three people:
14 One was somebody called Fadi, another was called Nadia, and the third was
15 called Hala or Lalo. Do you recall that?
16 A. Yes.
17 Q. So just some general points in relation to that number now to
18 help the Court, please. Firstly -- and forgive me, I don't have the page
19 number in your report to hand, but maybe if you have that, that will help
20 you.
21 Can I suggest in relation to this number there is no evidence as
22 to who bought the line or the number?
23 JUDGE BRAIDY: Please can you remind us the context of 546,
24 because we are following also.
25 MR. YOUNG: Yes, certainly. 546 was a number I recall was said
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 15 Cross-examination by Mr. Young (Continued)
1 to have been used from late February, March to, I think, about July in
2 2005. And Mr. Donaldson alleges it's a follow-on phone. And then the
3 third phone after that was what's called the 657 number. I hope that
4 helps a little.
5 Q. In relation to that phone, is it right to say that the -- sir,
6 it's at page 31 of your report. Is it right to say that there are --
7 there is no evidence as to who bought the line?
8 A. Correct.
9 Q. Further, I believe there are no subscriber details as it's an
10 anonymous pre-paid subscription; is that fair?
11 A. Well, there are subscriber details but there is no name.
12 Q. Forgive me, that was the point, that there are no -- there
13 doesn't seem to be a name attached to it.
14 Thirdly, in relation to documentary evidence, is it fair to say
15 there is no documentary evidence to help attribute that number to
16 Assad Sabra?
17 A. Correct.
18 Q. Thank you. I think you've already agreed we saw that there was
19 no SMS evidence that featured Assad Sabra at all to help in any
20 attribution of that number to him?
21 A. Correct.
22 Q. We know there is no voice product evidence. Is it also fair to
23 say there are no witnesses to attribute that number, the 546 number, to
24 Assad Sabra?
25 A. Yes.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 16 Cross-examination by Mr. Young (Continued)
1 Q. But in fairness, as I indicated, there was some evidence in
2 relation to Hala or Lalo, and I think we counted some three texts that
3 were of possible relevance to Hala Salloum; is that fair?
4 A. It is. And that would appear to corroborate the witness evidence
5 indicating the user was Hala Sabra. As I said repeatedly, sir, I will
6 look at the totality of the evidence.
7 Q. Yes, thank you, sir. I was just coming to that. In relation to
8 attribution of 546 to her, it's fair to say you rely very heavily on this
9 one witness, PRH590, correct, whose statement was read or to be read and
10 has been admitted?
11 A. Well, it is one of many components and they are interlaced
12 through the phones. But I do rely upon it, yes, sir.
13 Q. To save court time, it may well be we can agree on this, as I had
14 originally intended to cross-examine you about this -- this statement and
15 to look at the quality of it. Can we agree, if I can just summarize it,
16 which may circumvent the need to question you on the witness statement,
17 that it relates to a statement from the -- a senior manager, a CEO of a
18 company, and it relates to observations on a document in a customer
19 database involving some third- or fourth-hand hearsay? Is that a fair
20 way of summarizing it?
21 A. I'm afraid I don't feel I appreciate the legal concepts you're
22 introducing here. I don't feel qualified to answer that question.
23 PRESIDING JUDGE RE: Mr. Young is going to put a proposition to
24 you based upon what someone, who is not a witness, has said. He's going
25 to ask you something about it, like whether you agree with it, whether it
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 17 Cross-examination by Mr. Young (Continued)
1 would affect your evidence, whether you'd take it -- taken it into
2 account. I think. Is that right, Mr. Young?
3 MR. YOUNG: Yes, certainly.
4 For Your Honours, the reference -- there is one line reference
5 in -- in Mr. Donaldson's report. It's paragraph 68, if that helps.
6 Paragraph 68. And it's footnoted at 168. So perhaps I should give the
7 P number. It's P01157. Yes, so it's been admitted I believe. And
8 Your Honour can see how it's described.
9 Q. Let me just try and very -- in a very succinct way see if we can
10 agree about the nature of it. Is it fair to say that in that statement,
11 the CEO of the company is commenting on a company record which somebody
12 else has looked at in relation to a possible call operator who's not been
13 identified and in relation to an anonymous source from a data entry
14 clerk? And I'm trying to do it justice in a few lines. Does that
15 resonate with you as a description of what the quality of the evidence
16 is?
17 A. Well, frankly, sir, I haven't read this statement in some time,
18 so I can't comment. I've no reason to doubt what you say. This is a CEO
19 and this is a business record and I doubt she made that herself.
20 Q. Yes, Mr. Donaldson --
21 PRESIDING JUDGE RE: Mr. Young, is that witness protected? The
22 difficulty with the report is all the witnesses are basically named or
23 the exhibit number is there and the witness name is next to it, but it
24 doesn't indicate whether the witness has got protective measures.
25 MR. YOUNG: I don't think -- I don't think this witness is, but
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 18 Cross-examination by Mr. Young (Continued)
1 I -- out of abundance of caution, I ...
2 MR. DESALLIERS: No, the name has already been mentioned
3 publicly. There is no difficulty in mentioning the name of the witness
4 or the company in public.
5 MR. YOUNG: So be it.
6 Q. Sir --
7 PRESIDING JUDGE RE: Mr. Young, perhaps to help here in the
8 transcript, you could have your people communicate with the court staff
9 as to where the witness -- any of the witnesses that you're going to
10 refer Mr. Donaldson to have protective measures. They can do it pretty
11 quickly.
12 MR. YOUNG: Yes, of course.
13 Q. Well, I won't say any more, Mr. Donaldson. I'm just going to
14 suggest that -- put the proposition that that's a -- a short summary of
15 the nature of the account, and it related to a -- I'm not sure that you'd
16 be able to remember. Do you recall where the name -- how the name Hala
17 Sabra originated in relation to a document that was found somewhere in
18 the database or not?
19 PRESIDING JUDGE RE: And, Mr. Young, for the record, as there's
20 no protective measures, it's the CEO of BioSwiss, Zeina Younane, whose
21 statement is Exhibit P1273 [sic].
22 THE WITNESS: I don't recall, sir.
23 MR. YOUNG:
24 Q. All right. Thank you, Mr. Donaldson. Look, I'll leave that
25 there. And I'll leave 546 there. I'm going to move on now, if I may.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 19 Cross-examination by Mr. Young (Continued)
1 MR. DESALLIERS: Your Honours, may I raise a point. I appreciate
2 that counsel for Sabra Defence is trying to save time, but I'm a bit
3 concerned that we're asking Mr. Donaldson to comment on statements that
4 he says he hasn't read for an extensive period of time and these
5 statements are not shown to him. They're -- I'm just saying that it's a
6 very limited exercise of very limited value if Mr. Donaldson is not
7 provided with the chance to look at these statements.
8 PRESIDING JUDGE RE: We'll let Mr. Young proceed. If Mr. Young
9 needs to show the witness statement or an extract of it to the witness,
10 I'm sure he will.
11 MR. YOUNG: Yes. Let me do it now, because I'd -- I'd really
12 like to tie everything up before I go to my final sections. So be it.
13 Q. Can we go back then -- sorry, sir. Can we --
14 MR. YOUNG: Yes, could we please have on the screen, just to give
15 Mr. Donaldson a chance to refresh his memory, as I'm sure I wouldn't
16 remember myself, item 302, which was this one statement from the CEO in
17 relation to this point. Item 302. And I think it's P11 -- 1157.
18 PRESIDING JUDGE RE: Which passage or paragraph?
19 MR. YOUNG: Can we go to paragraph 11, please.
20 Just to summarize, this company CEO, does he not, if you have --
21 when you have a chance to see it, talks about a -- yes, page 6 is the
22 relevant page where the witness starts to explain who they are and what
23 they do. Thank you. Paragraph 11.
24 Q. And can you see, sir, in paragraph 11 there that the CEO is
25 explaining about this cosmetic service, effectively where ladies, or
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 20 Cross-examination by Mr. Young (Continued)
1 indeed gentlemen, I'm sure, can have a free cosmetic service. And then
2 they have the opportunity to refer clients or refer people they may know
3 to have a free service as well. And can you see there that it explains
4 how they generate their work through call centres and customer referral,
5 and how the skin care adviser collects the name, the telephone number,
6 and the area where the referral lives, whether they work or not, so the
7 call centre knows what time to make a call. And importantly adds:
8 "Not all of this information is always provided by the client?"
9 And can we look at paragraph 14, please. At paragraph 14, does
10 it explain there that:
11 "In the event that a call is made to a referral and they are not
12 interested in having an appointment this information is recorded in the
13 database."
14 And what we're going to come on to is a short document, which is
15 what the Prosecution rely upon. In French it's entitled [Interpretation]
16 "Customer File." [In English] Thank you. And, yes, at paragraph 14,
17 they say if they're not interested that's recorded. And we'll see later
18 in the document that, indeed, whoever was using the 546 phone appears to
19 have refused this wonderful service of a facial.
20 Can we go to paragraph 17 -- sorry, I'm doing this, sir, to
21 refresh your memory and take you to the salient paragraphs. At paragraph
22 17 can you see there that it explains how in -- back in 2005:
23 "... the results of calls by call centre operators," should be
24 "were," were "not directly entered by them onto the system as it is now."
25 But that "the results of the calls were recorded on paper and were
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 21 Cross-examination by Mr. Young (Continued)
1 recorded subsequently on a database up to a month later by a data entry
2 clerk."
3 And I think, sir, that when you look at this you may find out
4 that -- I don't believe that the data entry clerk was ever identified.
5 Can we move on, on the next page, para 20, does it there go on to
6 explain that the data -- sorry, the call centre operator, and names the
7 person at the end of the paragraph 20, was no longer employed by the
8 company. So is it -- I suggest that it appears there was no statement
9 taken from that person nor from the person who entered the document onto
10 the record.
11 MR. YOUNG: And then can we go to the exhibit itself, which I
12 think we find on page 12. If we can scroll down please, sir. That's it.
13 If we could focus on the top left, we can see there: "Numéro du Client."
14 Name: "Sabra Hala." It appears the offer of the cosmetics was declined,
15 "Refus/Négatif." And we don't have much more information. It says:
16 "... postal/Ville: Hadath," Liban.
17 Q. And I think it's right to say, sir, to ask you a question, this
18 is, is it not, a company that operated in Lebanon as well as other parts,
19 I think, of the world?
20 A. Yes.
21 Q. Yes. Having had a chance to look at that, is it fair to say that
22 the name -- it's unclear how the name Hala Sabra actually arrived in the
23 document or who input it?
24 A. Well, to the latter half of the question I would agree. It's
25 unclear who inputted it. But this business has explained the process
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 22 Cross-examination by Mr. Young (Continued)
1 that they followed, and behold we have 546 recorded next to Mrs. Hala
2 Sabra living in Hadath. I can't comment any more than that.
3 Q. Thank you. I think we are in agreement on this document. It
4 seems that you're able -- unable to say who was the person who may have
5 spoken to a call operator who we don't know the identity of, and you are
6 not able to say how that name was reduced into this "Fiche Client"; is
7 that fair?
8 A. It is.
9 Q. Yes.
10 MR. YOUNG: Unless Mr. Desalliers has any more issues that he
11 would like me to raise, that's all I propose to -- to say.
12 JUDGE NOSWORTHY: Mr. Young, Hazzam Viviane would be the person
13 who referred the name of Hala ostensibly on that document?
14 MR. YOUNG: I have to confess, I am unclear myself not having had
15 many facials or opportunities like this. I really don't know,
16 Your Honour. I'm not clear that that's clear from -- from the witness
17 statement.
18 JUDGE NOSWORTHY: Because if it is intended to be the person who
19 made the referral, my question would be were any steps taken to connect
20 and make contact with that person and perhaps take a statement from that
21 person?
22 MR. YOUNG: Well, yes, thank you for that -- that question. I
23 should have asked that question. May -- if I may ask Mr. Donaldson.
24 Q. Can you help us, Mr. Donaldson, as to whether you have any
25 information as to whether this person called Hazzam Viviane may have
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 23 Cross-examination by Mr. Young (Continued)
1 provided a witness statement in relation to these facials?
2 A. I don't have any information of that nature.
3 Q. No.
4 MR. YOUNG: I'm sorry, Your Honour I -- no, I can't -- no. I
5 don't think I can take it any further. I don't propose to unless anybody
6 else has any questions.
7 PRESIDING JUDGE RE: "Nom du parrain," that's a -- is that the
8 referral? "Parrain" I thought was "godfather." Is it they have the same
9 meaning in French?
10 THE INTERPRETER: "Sponsor," maybe.
11 MR. YOUNG: I am being told "sponsor" in my ear.
12 THE INTERPRETER: Or "referral."
13 MR. YOUNG: Or "referral."
14 THE INTERPRETER: It can indeed also be a godfather, but not in
15 this particular context.
16 MR. YOUNG: Or a godfather.
17 THE INTERPRETER: But not in this context.
18 MR. YOUNG: But not in this context, I am told.
19 PRESIDING JUDGE RE: Thank you, Mr. Young, on that. What's the
20 next one?
21 MR. YOUNG: I'm moving on now, if I may, to a different topic.
22 Q. Mr. Donaldson, can we now -- can I now ask you some general
23 questions in relation to the investigation carried out in -- in relation
24 to witnesses questioned over the 018 telephone number. Just to preface
25 the questions.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 24 Cross-examination by Mr. Young (Continued)
1 On the 20th of June of -- of this year, to refresh your memory,
2 you gave evidence in relation to your methodology relating to the
3 approach taken when investigating third-party contacts. And at page 66
4 of the transcript from line 6, you stated that:
5 "... in this case, the focus was largely put upon distant
6 contacts and business reasons" -- sorry, "businesses," if you recall. Do
7 you recall giving that evidence?
8 A. Yes.
9 Q. And you explained very clearly, and for -- entirely
10 understandably that -- that there were two reasons. Firstly you
11 explained there may be a business record of an interaction between a
12 suspect and also you explained that the investigators would be looking
13 for people who would be potentially willing to assist the inquiry. Do
14 you recall saying that?
15 A. Yes.
16 Q. And you went on to add that you're -- which I understand, that
17 you're looking for a neutral source. And you went on to say that was
18 largely how a lot of these were carried out.
19 Now, in relation to investigation into these types of contacts
20 where you're trying to investigate who the users or user of 018 might
21 have been, can you -- I hope this isn't an unfair question, but can you
22 give us any idea of the number of persons the investigation team either
23 interviewed or even questioned on a less formal basis? Just an
24 approximate number.
25 A. No, I couldn't even guess, sir.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 25 Cross-examination by Mr. Young (Continued)
1 Q. May it be in the hundreds?
2 A. No, I couldn't even guess, sir.
3 Q. Well, I'm not asking you to guess but to -- you must presumably,
4 given you were responsible for the overall attribution exercise, surely
5 you have an idea if it's -- whether it's 50, 100, 200, 10? Can't you
6 give us a reasonable estimation of those that were questioned to see if
7 they may help?
8 A. Firstly, I wasn't responsible for the overall attribution
9 exercise, nor the investigation. And honestly, sir, if I was picking a
10 number, I would just be guessing. And I would rather that we move to the
11 numbers, which I'm sure you have in front of you, than providing a guess,
12 which I don't think helps anybody.
13 Q. Right. So be it. But presumably a key factor for you was to
14 naturally try to find people who were willing to assist the inquiry, yes?
15 A. Yes.
16 Q. I'm just going to ask you briefly about two individuals in
17 particular, and then -- then in -- come to another point. We've already
18 talked about PRH106. I'm going to ask you briefly about that person and
19 then about PRH069.
20 In relation to PRH106, if you have the -- if you need refreshing
21 about that you have the document, I hope. I've already asked you, I
22 think, in a different context about that witness. Suffice it to say,
23 when we looked at that, if you recall, we dealt with the fact that that
24 witness was one relied upon by the Prosecution. Do you recall saying
25 that or agreeing that?
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 26 Cross-examination by Mr. Young (Continued)
1 A. Yes, that is the case.
2 Q. And this is a witness who, it's fair to say, provided helpful,
3 useful information about various aspects of the matters he was questioned
4 on?
5 A. Well, you told me it's not my place to judge, sir.
6 Q. In relation to the 018 number, it's fair to say, and I'll take
7 you to it if you like, that witness was shown the full 018 number and
8 explained, in short, that the number that he was shown did not sound
9 familiar? Do you remember? I think we -- we dealt with that part of a
10 paragraph. It didn't sound familiar.
11 A. Well, I don't remember the specifics, but I do know we don't have
12 a single witness that attributes the number. Therefore, I would be able
13 to answer this about any witness and each them as we move through them.
14 Q. Right. Well, I'm not going to go back there. We dealt with that
15 briefly and the -- the witness statement's been admitted. I'm going to
16 move on to -- quickly to, if I may, in relation -- another witness, which
17 is PRH069.
18 MR. YOUNG: And can I have that statement on the screen, please.
19 It's item number 136 in the Sabra queue.
20 PRESIDING JUDGE RE: That's Exhibit P1150. It's an interview of
21 the witness.
22 MR. YOUNG: Thank you, yes. If we could have --
23 PRESIDING JUDGE RE: A protected witness.
24 MR. YOUNG: Yes.
25 PRESIDING JUDGE RE: Whose witness number you might put on the
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 27 Cross-examination by Mr. Young (Continued)
1 record.
2 MR. YOUNG: Yes, the witness number again is PRH069. And the ERN
3 is 61 -- 60185288. And we have the exhibit number, P1150. And it's a --
4 Q. Is this, sir, can you see, a transcript of an interview of the
5 witness PRH069 on a date in 2010, 19th of October?
6 A. Yes.
7 Q. And can I take you to -- straight to the relevant passages, I
8 hope. Can we have page 43, and line 3, and can you see here, sir, that
9 the investigators indicate they're going to show him a phone number to
10 see if he knows it or can recognize it. And then do they not set out, at
11 lines 8 to 10, the number that we're talking about; correct?
12 A. Yes.
13 Q. And at -- can we see here at lines 13 down that the witness
14 checked his mobile phone he appears to have with him to see if the 018
15 number was there, and that's at 16 to 17. Is it fair to say he appeared
16 to confirm that number was not in his mobile phone; correct?
17 A. Yes.
18 Q. And again, this appears to be a witness who's cooperative with
19 the investigators. Do you agree?
20 A. Not my place to say, sir.
21 Q. All right.
22 MR. YOUNG: Well, can we go to page 44, line 3 there. It's at
23 page 44, line 3.
24 Q. Do you see that the witness was there asked if Assad had his own
25 mobile phone in the past or somewhere in the past. And can I suggest in
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 28 Cross-examination by Mr. Young (Continued)
1 this 2010 interview, he effectively replied that he only had access to
2 the 657 number and no other number previous to that. Oh, I can't even
3 see reference to 657. But does he say no -- no number --
4 "I only have his number, this number.
5 "So you never had another number previously?
6 "No."
7 So is he saying there that he didn't have a prior number for him
8 prior to 2010, effectively?
9 A. Yes.
10 MR. YOUNG: And can we go to -- back to page 43, please, at lines
11 22 to 23 in the context of communications with Assad Sabra. If we can
12 just look at that very briefly.
13 Q. I don't -- I don't refer to the name of any particular place, but
14 did the witness explain here how he worked for a certain company at line
15 22, and that Assad used to tell him that whenever the business went on
16 sale to send him a message, at lines 23, "through his mom," or maybe
17 that's meant to be "mum," I know not. Is that what was recorded?
18 A. Yes.
19 Q. Does that answer suggest, therefore, that at -- at that period
20 Assad Sabra may not have possessed his own mobile phone?
21 A. Yes. And we see at line 30:
22 "You mentioned before that Assad is using his wife's ... Hala's
23 phone."
24 Which would be entirely consistent with my position. I believe,
25 as I've stated, that Mr. Sabra was the primary user of 018. And after
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 29 Cross-examination by Mr. Young (Continued)
1 the assassination, I don't believe he had a sole-use phone, for whatever
2 reason.
3 Q. But the point I -- I'm coming to -- thank you for that comment.
4 But the point is the witness is saying there, is he not, that at that --
5 a certain period Assad may not have possessed his own phone; correct?
6 Because he was asking for messages through his mom. Do you see that?
7 A. I see that. But I would also suggest: One, we are talking about
8 2010, unless I'm wrong; and two, there are number of inferences that can
9 be drawn beyond the fact that he didn't have a phone by asking for
10 messages through his mom. His mom may have been an astute businesswoman.
11 It's not a conclusive inference that you can draw from that information.
12 Q. Well, did the investigators ask the witness when he himself
13 worked at that company to try and identify a time-period when Assad did
14 not have a phone or may not have had a phone? Is it apparent from the
15 interview transcript they ever asked that question?
16 A. Not from the parts that you've shown me, no, sir.
17 Q. Because can I suggest that would have been a rather relevant
18 inquiry, would it not? Did he or didn't he have a phone, for example,
19 back in 2004, 2005?
20 A. Well, yes, but I can't comment upon the interview that I wasn't
21 part of. That would have been helpful information, yes.
22 Q. Right. Thank you, sir. I leave that there. Now I'm going to
23 come on to a -- a more -- a few general questions in relation to a --
24 a -- the wider investigation.
25 MR. YOUNG: May I ask that item 510 be uploaded onto the screen,
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 30 Cross-examination by Mr. Young (Continued)
1 please, for the benefit of the witness, but not for broadcast, please.
2 Thank you very much.
3 Q. Yes, Mr. Donaldson, can you see in front of you a --
4 MR. YOUNG: This is not for broadcast, please.
5 Q. I'm not going to refer to or name any of these names. I'm just
6 going to ask some general questions about what we see here. This is a
7 document entitled "Persons Questioned regarding the attribution of ...
8 018," and the -- the ERN is 1DT5-11128. And it's a one-page document
9 with a list of 24 witness names, the ERNs, and references to pages and
10 paragraphs. There are also some exhibit numbers for four of the
11 witnesses.
12 Were you aware of --
13 PRESIDING JUDGE RE: Mr. Young, I don't want to lose the
14 information on the document, so we'll receive it into evidence as a piece
15 of -- well, it's an aide-memoire. It's 1DT5-11128. And it's titled --
16 it was on the screen but it's now gone. Thank you. "Persons Questioned
17 regarding the attribution of ... 018." The next exhibit number is 5D412.
18 MR. YOUNG: Thank you.
19 Q. So -- so we tried to put together in one document a list of 24
20 names of persons who have been spoken to by investigators in relation to
21 the investigation into the 018 attribution. Were you aware that there
22 were 24 other persons who were asked during the investigation as to
23 whether they recognized the number 018?
24 A. Yes, I've already answered that, sir. I wasn't aware of the
25 number.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 31 Cross-examination by Mr. Young (Continued)
1 Q. Right. All right. Mr. Donaldson, if you weren't aware of the
2 number, I can understand that entirely. But looking at the -- are some
3 of these names familiar to you as people that were identified to be
4 approached to see if they could help in the attribution process?
5 A. Some names are familiar and many are not.
6 Q. I entirely understand that. I'm sure I wouldn't be able to
7 remember myself these names. I understand a number of -- a number of
8 them were also shown photo -- photographs for Mr. Sabra, which would be
9 normal investigation policy I imagine. Can you comment on that or not?
10 A. I can only say that that would often be done, yes.
11 Q. Yes.
12 JUDGE BRAIDY: Mr. Young or Mr. Donaldson, have you any idea of
13 the process of selection of these persons? For example, it's random,
14 like that? If you don't have, don't answer to me. But if you have an
15 idea.
16 THE WITNESS: Yes, the way that this would be done is that we
17 would profile a lot of third-party contacts. In some cases, hundreds.
18 And we would try and establish who we thought these people were. We may
19 find out that one's an insurance broker, one's a company that sells
20 products. I think we got to the point of somebody who was advertising a
21 flat for rent. And we profiled those numbers, and then those are
22 provided to the investigators, who would make an assessment and then go
23 out and conduct the investigations and interviews that they would select.
24 So that was generally the process.
25 MR. YOUNG: I thank Her Honour for the question.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 32 Cross-examination by Mr. Young (Continued)
1 Q. May I ask you - I don't need the name - but who was the
2 individual within the Office of the Prosecutor who would make a decision
3 on which persons to go and see? Because presumably --
4 MR. DESALLIERS: Your Honour, what's the relevance of this? And
5 an inquiry into the internal work product of the
6 Office of the Prosecution, I don't -- really don't see the relevance of
7 this line of questioning.
8 MR. YOUNG: I'll withdraw it.
9 Q. Let me put it a different way. Presumably, these -- a decision
10 taken to interview 24 persons isn't just taken arbitrarily, as you've
11 explained. There is a process. So would you have been involved in the
12 process of identifying those people which should be questioned?
13 A. I would have been involved in the process that I described to
14 Judge Braidy, which is going through the call records and trying to
15 ascertain who each and every third party was. I would then pass that to
16 the investigators. And from that point on, it was not a process I was
17 involved in.
18 Q. I understand that and I wouldn't expect a senior analyst of your
19 expertise to be involved in the -- the groundwork, as it were. But -- so
20 you were involved in the direction, because these individuals were, were
21 they not, were identified because their phones were alleged to have a
22 phone contact with the 018 number; correct?
23 A. Well, yes, their phones did have contact with the 018 number.
24 Q. So whatever the process was, is it fair to say it was expected
25 that these witnesses would be able to provide some information about the
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 33 Cross-examination by Mr. Young (Continued)
1 attribution of the phone?
2 A. It was hoped. We are dealing with investigations where we're
3 looking for perhaps business records or memories which are -- at least
4 five years had passed. So each is acknowledged as being a more complex
5 investigation than doing something live-time. So I don't think that
6 there was ever an expectation, simply a hope.
7 Q. And it's fair to say that none of these -- can you confirm this?
8 Or -- certainly I think you've already confirmed it generally. I suggest
9 none of these 24 witnesses recognized that -- that 018 number and
10 certainly none of them made that attribution to Assad Sabra.
11 A. You are correct. And I've already confirmed that, sir.
12 Q. Given -- may I ask you this: How -- when you receive that kind
13 of body of, as it were, non-recognition or non-attribution, isn't --
14 couldn't that be viewed as a possible negative indicator of attribution?
15 A. In the context of this investigation, I don't agree with that.
16 Q. Maybe it's not your practice, but when you have a body of
17 witnesses who -- who were chosen, selected, do not attribute the number,
18 shouldn't that body of evidence be reflected in your attribution report
19 so that the attribution report is transparent?
20 A. Well, I don't agree. These were not interviews where another
21 user was put forward, which would have been included. These are simply
22 people that couldn't help. And, frankly, it would seem the only standard
23 that would please you is if I put all of these and allowed a lawyer to
24 read through every single witness statement and every single document. I
25 tried to summarize, and I don't feel that this is -- the negative results
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 34 Cross-examination by Mr. Young (Continued)
1 are important information. But we can disagree on that, sir.
2 JUDGE NOSWORTHY: Mr. Donaldson, why do you say the absence of
3 positive affirmation is not a negative indicator? What makes you come to
4 that conclusion?
5 THE WITNESS: It's because of the context. If, for example, we
6 identify a garage, and we think, well, there is only one call to the
7 garage. What we'll do is go and interview the garage and say: Do you
8 have any records of cars that you repaired around this time? And it's
9 based upon a single call five years prior. And they say: We don't keep
10 records for longer than a year. They're then shown a seven-digit number
11 and asked on the basis of a single call five years prior: Do you
12 remember this number? They say no. I would say that's fairly
13 reasonable.
14 Now, it is a different situation where you have very significant
15 contact. And we've had this, people with hundreds and hundreds of calls
16 who have said: I don't know who that is. But I see that as a different
17 situation.
18 So I just would point to the context of these inquiries, and
19 that's why in their true context seen as I think they should be, I don't
20 take these as negative indicators.
21 JUDGE NOSWORTHY: Defence counsel, thank you.
22 MR. YOUNG:
23 Q. Just to be clear and to finish on this, is it simply not included
24 because it's not consistent with your case?
25 A. I reject that and I believe I've already provided my answer.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 35 Cross-examination by Mr. Young (Continued)
1 Q. Yes, very well. Thank you very much, Mr. Donaldson, on that.
2 I'm going to move away from general questions about interviews, and --
3 sorry, witnesses, and now I'd like to return, if I may, to a new document
4 which the Prosecution uploaded a few days ago, and ask you just,
5 literally, one or two questions about it. It relates to the -- one of --
6 one of the 018 texts, which we've just had some more information about,
7 sir. So I'm sorry to keep moving.
8 MR. YOUNG: But if we could have -- have item 511 on the screen,
9 I can explain what this new piece of information is.
10 PRESIDING JUDGE RE: What's the number?
11 MR. YOUNG: Yes, Your Honour. The number is 1DT5-11129 to
12 1DT5-11130. And --
13 PRESIDING JUDGE RE: The queue number, I meant.
14 MR. YOUNG: The queue number? Sorry, 511.
15 Yes, can I have page 2, please. Over to the next page. Yes.
16 PRESIDING JUDGE RE: My index currently only goes up to 509.
17 A description of the document, please?
18 MR. YOUNG: Yes.
19 PRESIDING JUDGE RE: It looks like it's text content.
20 MR. YOUNG: Yes, it's -- exactly so. So these are, I understand,
21 the Prosecution -- it's said to be a Prosecution translation of -- or,
22 sorry, not Prosecution translation. It's said to be a translation --
23 this is said to be a translation following a request from LSS back in
24 2011.
25 PRESIDING JUDGE RE: This is the "wahala" versus "Hala" versus
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 36 Cross-examination by Mr. Young (Continued)
1 "wa hala" issue that you traversed in some detail at point in the past.
2 What day, I can no longer remember.
3 MR. YOUNG: Yes, I don't have the date. As I say, this is
4 something we were provided with extremely very recently. But I
5 understand -- if Mr. Desalliers can help us, I understand the date of
6 these translations is said to be in 2011. I don't know if he can help
7 with that. That would be very helpful.
8 MR. DESALLIERS: Yes, Your Honours. This follows the filing
9 F3334 from the Registrar, following a request from the Chamber,
10 identifying or mentioning researches made in relation to the request for
11 translation of the CST that contained this wahala reference.
12 And in this filing, the Registry indicated that they had no
13 record for the CST, but they referred to another document that contains
14 some of the material or requested for translation some of the material,
15 which was dated 13 January 2011. We have identified this document that
16 was referred to at paragraph 3, and we have disclosed it to the Defence.
17 But this was not a document that was intended to be tendered as
18 translation of evidence. This was done in 2011 for internal work
19 purposes. But it was still disclosed to the Defence so that they could
20 see what was referred to at paragraph 3.
21 So might I also add that since LSS could not find any record of
22 request for translation of - and I will read the ERN so that we are
23 clear - 60198772 to -773_OEN_01, which is the one that is tendered into
24 evidence, and that the Prosecution could not find these records also, as
25 was apparent from the letter that was brought to the Chamber's attention,
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 37 Cross-examination by Mr. Young (Continued)
1 the Prosecution has requested a new translation of the whole CST to CSS,
2 and that was uploaded in the system, in the Legal Workflow, and disclosed
3 to the Defence.
4 So the Prosecution considered that it was the simplest way to go,
5 simply ask LSS to provide a freshly made translation. And it is in the
6 system. The Defence can use it to ask questions to Mr. Donaldson. But
7 now it is not the document that is shown to him. What is shown to him --
8 PRESIDING JUDGE RE: No, I get it. I don't know what we are
9 talking about. Sorry, I thought we were talking about the translations
10 which the Language Services Section said they couldn't do, of English --
11 sorry, Arabic-English transliteration, and the Registrar's submission of
12 the 22nd of September, 2017, in filing F3334, "Registrar's Submission
13 Pursuant to Rule 48(C) in Response to the Trial Chamber's Order of
14 21 September 2017." It said that they -- it was referring at paragraph 3
15 to the content of Exhibit P523, which is on the screen, and it was
16 requested for translation.
17 Now, am I -- am I -- where are we going with this?
18 MR. DESALLIERS: Your Honour, the Registry added this reference
19 to some of the content of P523 for which they could find a request for
20 translation, but this was in relation to a document that was intended for
21 internal work purposes. And that is the document that you have on your
22 screen right now. So this is not LSS translation of the CST. This is
23 something else entirely, and this is what is referred to at paragraph 3.
24 The Prosecution never raised this question of that document. It
25 just appeared in the filing from the Registry. Out of clarity, we
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 38 Cross-examination by Mr. Young (Continued)
1 disclosed it to the Defence so that they could see what we are talking
2 about. But the CST itself is something completely different. So this,
3 that you have on the screen, is not P523. It is something completely
4 different.
5 PRESIDING JUDGE RE: And?
6 MR. DESALLIERS: And --
7 PRESIDING JUDGE RE: Is the Defence going to ask Mr. Donaldson
8 question about this or -- or what? I don't know why we are still
9 talking.
10 MR. DESALLIERS: I am merely trying to clarify, Your Honours.
11 And if it's clear, I will sit down and allow my colleague to continue.
12 JUDGE BRAIDY: You mean this document is internally translated?
13 It's not -- not? No? This document on the screen, I mean.
14 MR. DESALLIERS: This document was not internally translated, but
15 it was a document for which the Prosecution asked LSS to make a
16 translation, but it was simply a document that was meant for internal
17 work product. It was not a piece of evidence that was intended to be
18 tendered. So it -- there are situations where we ask LSS to translate
19 documents for internal work purposes, and other situations where there is
20 evidence that we want to be translated.
21 So I simply wanted --
22 PRESIDING JUDGE RE: Seven minutes we've been talking about this.
23 Are we getting to the evidence?
24 MR. DESALLIERS: I will stop there if it's clear, Your Honour.
25 JUDGE NOSWORTHY: Might I ask a question. Does the document have
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 39 Cross-examination by Mr. Young (Continued)
1 within its contents the same words within the same context so that it
2 could be useful to us in our determination?
3 MR. DESALLIERS: Forgive me, Your Honour. I am not sure I
4 understand the question. But if I can --
5 JUDGE NOSWORTHY: That the words in issue would be wahala and
6 Hala and whether or not they were used or referred to a particular person
7 or a particular thing?
8 MR. DESALLIERS: Well, at page 2 of that document, I don't know
9 if it's the exact wording, but the essence is the same. And although
10 different scenarios have been submitted by the Defence for the meaning of
11 this, in that particular document it was translated as "how are you and
12 Hala," which I believe was the contentious point. I hope that assists.
13 JUDGE NOSWORTHY: Thank you, learned Prosecutor.
14 MR. YOUNG: Your Honour, I note the time. I'm wondering if this
15 is a good time.
16 PRESIDING JUDGE RE: Can you put me out of my agony. Are you
17 actually going to ask this witness any questions about this document, or
18 are we just going to discuss its provenance?
19 MR. YOUNG: Your Honour, no, I would like to have five or ten
20 minutes of questions. I would like to confer with my colleagues about a
21 matter before I do in relation to what Mr. Desalliers has said about the
22 history behind this translation.
23 PRESIDING JUDGE RE: Mr. Desalliers, the issue of the protective
24 measures for P024. I've had four people looking, including myself. I
25 can't find anything. Can you come back to us after the break? That is,
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 40 Cross-examination by Mr. Young (Continued)
1 I don't believe we made an order for protective measures. But can you
2 come back after the break?
3 MR. DESALLIERS: Yes, I will. And I will also relieve myself of
4 a duty that was imposed on me by the Chamber yesterday and remind the
5 Chamber that we need to discuss about other documents with Mr. Hannis. I
6 was asked to remind the Chamber.
7 PRESIDING JUDGE RE: Yes, it was a gentle request for a reminder.
8 I wouldn't go so far as to say it was an imposition, but thank you very
9 much for reminding. I'm sure Mr. Hannis would have done it if you
10 hadn't.
11 Mr. Young, when we come back we are going straight into this
12 document.
13 MR. YOUNG: Yes, I'll be ready.
14 PRESIDING JUDGE RE: All right. We look forward to it. So we'll
15 adjourn.
16 --- Recess taken at 11.31 a.m.
17 --- On resuming at 12.01 p.m.
18 PRESIDING JUDGE RE: I'm looking at you, Mr. Desalliers. Do you
19 have any news for us on the Witness 24 protective measures or not issue?
20 MR. DESALLIERS: Yes, Your Honour. The first decision where this
21 was addressed is filing F2644. This is a decision from the Chamber on
22 the admissibility of the witness statement. It is decision from the 12th
23 of July, 2016.
24 And the Trial Chamber had ordered that the identifying
25 information remain confidential --
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 41 Cross-examination by Mr. Young (Continued)
1 PRESIDING JUDGE RE: Mr. Desalliers, that's not what I'm asking
2 you. I'm fully aware of that. It says the Chamber ordered the
3 identifying information remain confidential until we decided otherwise.
4 That's not an order for protective measures.
5 MR. DESALLIERS: Well --
6 PRESIDING JUDGE RE: The question is simply this: Has the Trial
7 Chamber ever made an order, at the Prosecution's request, or anyone
8 else's request, giving protective measures to Witness 24. I haven't been
9 able to find it yet. Maybe you have.
10 MR. DESALLIERS: Well, Your Honour, I believe that this is
11 important to put into context. This was the first time that this was
12 addressed, and the Prosecution was instructed to inform the Trial Chamber
13 in 2016, when the statement was declared admissible, whether the witness
14 requests protective measures once it is able to verify with the witness.
15 Then on the 1st of May, 2017, in filing F3107. This is the
16 decision on the admissibility of the statement of PRH024 under Rule 158.
17 The Trial Chamber indicated at paragraph 44 that it sees no reason to
18 depart at this time from the provisional order protecting the witness's
19 identity and identifying information. It reiterated that:
20 "... the Prosecution should inform the Trial Chamber of whether
21 the witness requests protective measures, once the Prosecution can verify
22 with" the witness.
23 And the situation that we're in, Your Honours, is that we are not
24 in a position to contact the witness. We've made many attempts, and
25 these are, I believe, explained in the Prosecution's filing of the
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 42 Cross-examination by Mr. Young (Continued)
1 19th of September, 2017, filing --
2 PRESIDING JUDGE RE: That's all right. That's the information I
3 need. We haven't made an order for protective measures, as I suspected.
4 It is simply there was a -- we've ordered that the identifying
5 information remain confidential -- confidentially provisionally. That's
6 it. Okay. So we'll have to take it from there.
7 So thank you very much. I apologize for interrupting you, but I
8 was trying to get to a specific point and you've guided us there. So
9 thank you.
10 MR. DESALLIERS: Thank you, Your Honour.
11 PRESIDING JUDGE RE: Back to the witness.
12 Mr. Young.
13 MR. YOUNG: Thank you.
14 May we have the document on the screen, please. The document,
15 which is -- yes, it's still there, which is item 511 in the Sabra queue,
16 which we have identified with the help of Mr. Desalliers.
17 Q. Do you see that on the screen, sir?
18 A. Yes.
19 Q. I'm going to try to deal with this very briefly. And to put this
20 into context, do you recall, Mr. Donaldson, last week where I was showing
21 you various alternative translations in respect of what I'll term in
22 shorthand the wahala text?
23 A. My recollection is you were showing me translations of potential
24 theoretical spelling mistakes.
25 Q. Yes, well, you seem to recall the day and the fact we went
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 43 Cross-examination by Mr. Young (Continued)
1 through various alternative translations. And you may recall that I
2 suggested the original Prosecution instructions, which I showed on the
3 screen, were seriously flawed, as the expert was told, in the very first
4 line, to look for names in the text. Do you remember me pointing that
5 out?
6 A. Yes, and I recall my answer.
7 Q. Fine.
8 MR. DESALLIERS: And just for our purposes, can we please have
9 the reference of that document of the expert that was referred to? That
10 would be of assistance, thank you.
11 MR. YOUNG: Yes, certainly. It's item 394 on the Sabra queue.
12 And it was the -- the ERN I believe is 60292478. It's the Prosecution's
13 previous expert translator who was not used.
14 Q. So you recall, Mr. Donaldson, that I was suggesting that the
15 translation instructions for the abandoned expert were flawed. Do you
16 remember? And you remember the reason why I suggested they were flawed,
17 do you not?
18 A. Yes.
19 Q. Now, when we discussed also why these -- this -- why this should
20 have -- whether it should have been taken into consideration when you
21 sought to rely upon the text. Well, what we do know in the time between
22 the last time we were in court looking at this and now, as a result of
23 the helpful intervention of the Trial Chamber, is that from P523, which
24 is the translation text that you rely upon, is that it appears to have
25 been, from what we understand, some mix of LSS and internal OTP
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 44 Cross-examination by Mr. Young (Continued)
1 translations.
2 So let's now look at the document -- this document which is said
3 to be the original translation received from LSS in response to an OTP
4 request in 2011. That's the one on the screen.
5 MR. YOUNG: Can we go to the fifth column in the second row.
6 And -- well, in fact, can we start at the top row.
7 Q. Can you see that in the top row where we have "assad," in the
8 second row where we have Hala -- "wahala," the third row where we have
9 "asodi," and the fourth row where we have "assad," that all these names
10 are in bold?
11 A. Yes.
12 PRESIDING JUDGE RE: For the record, we are looking at a document
13 with ERN 1DT5-11129 through to -1130.
14 MR. YOUNG: Thank you.
15 Q. Given that whoever translated this has highlighted only the names
16 in the body of the content of these texts by putting them in bold, would
17 you agree it's a fair inference that whoever that translator was, they
18 were also privy to the same flawed instructions to look for names?
19 MR. DESALLIERS: I'm sorry, before the witness answers. I'm
20 still trying to find the document where the flawed instruction is
21 referred to. Can we please have the exact reference of this allegedly
22 flawed instruction? That would be of extreme assistance.
23 MR. YOUNG: Yes. It is item -- no. It's -- it's ERN 60292478 to
24 60292614 at page 8, paragraph 3.4(a), and it's item 394 on the Sabra
25 queue. And it was a set of instructions to the Prosecution's former
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 45 Cross-examination by Mr. Young (Continued)
1 abandoned expert translator.
2 MR. DESALLIERS: Thank you, that's very useful because it appears
3 to us that the question might not have been put entirely fairly, because
4 the instructions to the expert do not start at 3.4 of that document. And
5 that's the reason I wanted to raise it. The instructions start at 3.1.
6 So if any questions are put to the witness in relation to the
7 instructions, he should be shown the entire instructions. Thank you.
8 PRESIDING JUDGE RE: Are we going to see the document?
9 MR. YOUNG: Your Honour, we did see the document. I -- I put the
10 whole document on the screen. We dealt with the early paragraphs. Then
11 we went to 3.4. If my friend wants --
12 PRESIDING JUDGE RE: Mr. Young, as you've said yourself, this is
13 the problem with stopping and starting, chopping and changing. I think
14 we dealt with this, I think, about a week ago, which since then we've
15 had, I think, five days, maybe 22 hours of -- maybe not 22, but maybe
16 around 20 hours of questions to poor Mr. Donaldson. I just can't
17 remember.
18 MR. YOUNG: If I'm being invited to, by you, Mr. President, to
19 put the -- to refresh the witness's memory, I'm happy to do that.
20 PRESIDING JUDGE RE: Yes, not just his. Judge Braidy's just
21 reminded me it was actually Thursday last week we dealt with this. So it
22 is more than 20 hours of questioning have passed since that moment.
23 MR. YOUNG: Certainly. Can we have it on the screen, please,
24 which is item 394. I think it is on the screen. And can we go to 3,
25 paragraph 3.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 46 Cross-examination by Mr. Young (Continued)
1 Q. And let's go back, Mr. Donaldson, and I'll take you to 3.4. Do
2 we see here at 3.1 the expert describes that he received the following
3 direction in relation to two call sequence tables showing SMS content.
4 And then it gives the details.
5 Then do we see at 3.2 a direction to the expert "to review the
6 SMS content and translate them into the English language and insert the
7 translation or any change in the final column of the table entitled 'SMS
8 Translation.'"
9 At paragraph -- can we scroll up, please? At paragraph 3.3,
10 Mr. Donaldson, do you see, it adds:
11 "In addition to the translation, you are also requested to
12 complete a report to accompany the translations detailing your
13 qualifications/experience and in which the meaning of the SMS messages is
14 interpreted and any particular language or terminology is explained."
15 Then it comes on to the specific instructions.
16 "You are" --
17 3.4:
18 "You are specifically asked to:
19 "a) indicate given names of individuals;"
20 I hope that helps.
21 PRESIDING JUDGE RE: Yes, thank you. Now the name of the expert.
22 I can't remember. As I said, it was a week ago. I can't remember. Was
23 there some reason that the expert -- the now abandoned expert, as the
24 Defence is calling the expert, whose name can't be used?
25 We've had a week to reflect upon this one, Mr. Desalliers.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 47 Cross-examination by Mr. Young (Continued)
1 MR. DESALLIERS: Your Honour, I didn't anticipate that we would
2 return to this question. But we can verify if there is any issue. I
3 cannot say at present. We need to verify.
4 PRESIDING JUDGE RE: There was another point which arose. Again,
5 you're going to have to remind me. I think the question was asked why
6 was the expert abandoned. Was that ever answered or was that something
7 you had to make inquiries about? Because as we noted, it was long before
8 your time here.
9 MR. DESALLIERS: It was indeed long before my time, Your Honours.
10 But I believe that simply the Prosecution is -- or was relying on a
11 document that was described as an official translation. I can now
12 correct this because now we have a new translation that is -- that is
13 provided by LSS, but it's simply because we -- we had an official
14 translation from the Registry which didn't make it necessary to call an
15 expert on this question.
16 But, Your Honours, that's about as far as I can go. I wouldn't
17 have any other additional details.
18 But for the record, so that we are clear, this new translation
19 that was made has 60198772 to -773_D_EN. So that we are clear on which
20 translation the Prosecution is relying upon.
21 MR. YOUNG: Yes, Your Honour, the simple answer is the report --
22 the translations that were relied upon by Mr. Donaldson have nothing to
23 do -- no relevance for this new translation report they've now got in
24 September 2017 at all. And I don't see how it was of any assistance for
25 the Prosecution to now, having had all this history, this effectively
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 48 Cross-examination by Mr. Young (Continued)
1 litigation over this, for them to now produce a new report -- a new
2 translation. It makes no sense at all to me. But ...
3 If I can --
4 PRESIDING JUDGE RE: Yes, we would love you to continue.
5 Mr. Desalliers, are you proposing to substitute new translations
6 for old ones? If the answer's no, just say no and we'll move on. If
7 it's yes, please do it.
8 MR. DESALLIERS: For this specific one, yes. We are relying on
9 the new one.
10 PRESIDING JUDGE RE: All right. Okay. Well, you can do that
11 administratively.
12 Yes, let's go, Mr. Young.
13 MR. YOUNG: Yes. If I can get back to my question,
14 Mr. Donaldson.
15 Q. I think I was asking you given the fact that in the document --
16 MR. YOUNG: If we can please return so the witness can see the
17 document I'd referred him to when I put the question, I'd be very
18 grateful. That's -- thank you very much, sir.
19 Q. The question I think I was putting to you, sir, was this: Given
20 that all these apparent names in the body of the -- the SMS content here
21 in the original all appear to have -- exclusively highlighted in bold, is
22 it a fair inference, Mr. Donaldson, that whoever translated this may well
23 have been in receipt of the instructions to look for names?
24 A. Well, there is simply too much information I don't have to able
25 to provide any meaningful comment. This is not my area. I don't know
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 49 Cross-examination by Mr. Young (Continued)
1 who bolded it. I don't know the practices. I don't know about any
2 instructions, and I have no personal knowledge or experience that can
3 assist me here.
4 Q. I presume you've also got no recollection about whether that's --
5 that's another version you may have seen when you were writing your
6 attribution report in relation to the SMS text for 018?
7 A. I may have seen it in 2011, but I've seen a lot of documents in
8 between.
9 Q. So finally to tie this up and finish this point, is it fair to
10 say that you don't know, nor does anyone, it appears, whether this
11 translation on the screen was used in constructing Exhibit 523, which is
12 the version of the translations that currently and -- the Prosecution
13 rely upon?
14 A. Yes, it is correct that I cannot help in any way on this matter.
15 Q. Thank you. I leave that there. I'm going to turn to a new
16 topic. Mr. Donaldson, you'll be relieved to know this is the penultimate
17 issue I want to raise with you, and it's to do with your single user
18 argument.
19 MR. YOUNG: Can we have on the screen, please, slides 6 and 7 of
20 your Sabra presentation queue [sic], which is Exhibit P1952, please.
21 It's item 9, sorry. It's item 9, I think, in the queue. It's slides
22 6 -- 6 please, first. Thank you. So here we are.
23 Q. I think this is slide 6, you can see that, where we have
24 reference to three phones. And the top one, Purple 018, is described as
25 "single user." Can we go to page -- slide 7, please, and do we see here,
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 50 Cross-examination by Mr. Young (Continued)
1 effectively, this is the slide you use to encapsulate the points you were
2 wanting to make when advancing your single user argument; is that right?
3 A. Yes.
4 Q. Thank you.
5 MR. YOUNG: That can come down from the screen now -- from the
6 screen now, please. Yes.
7 Q. In your reports, Mr. Donaldson, you'll know very well how you set
8 out in some considerable detail your contact profile arguments, your
9 geographical profile arguments, and so forth. And we now know you've
10 authored some four substantial reports in relation to others and
11 certainly Assad Sabra. And we know the years. The first was in 2012,
12 the second is in 2013, the third in 2015, and the latest in August 2017.
13 Can you confirm that nowhere in any one of these reports do they
14 contain your single user argument?
15 A. They don't contain the points you've just shown me on the slide.
16 No, sir.
17 Q. Why did you not think, given with, with respect, you described it
18 in evidence as a very central point, why did you not think it relevant to
19 include it somewhere in your report?
20 A. What I sought to do was offer the evidence and not offer
21 conclusions. What I have tried to elicit in I think it was April of this
22 year were observations which I think go a little beyond and trying to
23 explain these, for me, not very difficult points. But ultimately there
24 comes a point when I have to stop writing. I don't feel that this is
25 amiss. And I think that anybody looking at my underlying material would
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 51 Cross-examination by Mr. Young (Continued)
1 be able to draw these same observations.
2 Q. Well, let me move on. In evidence you have explained what you
3 meant, helpfully, when I asked you some questions on the first day in
4 relation to single user, multiuser, and you made comments on occasional
5 user. And you will remember that you said they were fairly obvious terms
6 which were easily understandable. Do you remember saying that?
7 A. Yes.
8 Q. And, indeed, you went on to say they were so comprehensible and
9 straightforward that you saw no need to include any definition of them in
10 your attribution reports; correct?
11 A. Yes.
12 Q. So they were not defined in the attribution reports?
13 A. No. We've covered this, sir.
14 Q. You agree, I think, it's important we all understand what you
15 mean by them given that they explain the way that you make your arguments
16 on the attribution of the phones. So to remind us, just very briefly,
17 what you said about each one - single user, multiuser, and occasional
18 user - I'm going to refresh your memory before I ask you a few questions.
19 In terms of single user, you said that single user phone is a
20 phone that can be used on occasion by another phone. That's transcript
21 22nd September, page 16, line 20. And you said you were unable to say
22 how many persons may use a single user's phone; same date, page 23,
23 line 1. And you further defined it as a phone which is not a multiuser
24 phone; same date, page 18, line 2. Do you recall saying these things?
25 A. I would still say them now.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 52 Cross-examination by Mr. Young (Continued)
1 Q. And in relation to a multiuser phone, you defined this as a phone
2 where there is evidence pointing to multiusers in a consistent way;
3 that's the same date, page 17, lines 16 to 18. You added that volume was
4 a factor; page 53, line 4. And you said that you did not take one or two
5 inbound SMS inference being to the non-suspect user to be conclusive
6 evidence of the phone being a multiuser phone; page 17, lines 18 to 19.
7 And you added that even if some calls or texts were made or sent by
8 persons other than the suspect single user, that did not make it a
9 multiuser phone; same date, page 17, line 19 to 21.
10 In relation to occasional user, I recall you declined to come --
11 to define that, but you did give some personal examples. Do you remember
12 that you said that -- that in your opinion of only one or two inbound SMS
13 to a mobile phone, that may indicate someone falling under the category
14 of an occasional user of the phone. Do you remember saying something to
15 that effect?
16 A. Yes, I would stand by that.
17 Q. In terms of your approach to single user and multiusers, you
18 explained that where there is clear evidence for multiuser, you would
19 change from being a single user to being a multiuser. Do you remember
20 saying that?
21 A. Yes, and I would stand by that.
22 Q. And, with respect, that explains perhaps why in your PowerPoint
23 slide used to support your single user argument you set out one of the
24 reasons as being no evidence of multiuser; correct?
25 A. Yes, that is my observation.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 53 Cross-examination by Mr. Young (Continued)
1 Q. So on your reasoning, you've clearly acted on the presumption
2 that every phone is a single user phone in the first place; correct?
3 A. I will generally approach mobile phones from that position, but I
4 will look at the available evidence. And I really don't care, sir,
5 whether it's a single user or a multiuser. I will look at the evidence.
6 But I do generally start from a position of assuming that a mobile phone
7 may be used by one person, but then I look at the information.
8 Q. Can I suggest that you -- you have no right to rely upon this
9 approach or this presumption that all falls -- fall under the category of
10 single user from the start. And I'm going to put this to you: Do you
11 consider that all adult mobile phone users use mobiles in the same way as
12 described in the personal example given by you about yourself and your
13 wife?
14 A. I cannot account for every phone user, and I have seen many
15 different ways. But respectfully, I reject that you say I have no right
16 to take an approach of beginning by looking at the evidence and forming a
17 picture based upon that. I don't make any assumption of any value until
18 I've looked at it. So I think you're insinuating that I'm biased. I'm
19 not and I reject that, and I think you have no evidence for that.
20 Q. I'm just, Mr. Donaldson, with respect, and there is nothing
21 personal here, I'm looking at the logical way in which you're approaching
22 your methodology. What I'm -- I'm going to ask you, is this: Is it not
23 fair to say that mobile phone use depends upon many different factors,
24 such as age, background, circumstances, possibly financial and otherwise,
25 cultural context, and so on, and that these are the kinds of factors that
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 54 Cross-examination by Mr. Young (Continued)
1 may interplay when you're considering when you're looking at or should
2 look at how you approach phones?
3 A. I agree that there are a variety of factors, but I try and look
4 at the available evidence.
5 Q. You see, I suggest that this is rather more complex and involved
6 than the -- with respect, the simple way that you have described. And
7 I'm going to take some concrete examples.
8 Have you never come across situations where young men share
9 mobile phones?
10 A. I have come across situations where there are multiuser phones.
11 And I have --
12 PRESIDING JUDGE RE: Mr. Donaldson, that wasn't the question.
13 Please answer it.
14 THE WITNESS: I don't have that in my recollection in the way
15 that it's phrased.
16 MR. YOUNG:
17 Q. Well, let me put it another way. Have you ever come across --
18 have you never come across situations where families share mobile phones?
19 A. Sir, of course I have.
20 Q. You see, I'm suggesting that the -- the home circumstances that
21 you provide in relation to your -- your good self may not, with respect,
22 be the best way for the Judges to decide the approach when looking at
23 single user and multiuser. I'm going to suggest to you, with great
24 respect, that -- as I'm duty-bound, that your logic here and your
25 approach to single user phones is fundamentally flawed. And I'm going to
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 55 Cross-examination by Mr. Young (Continued)
1 put it in this way: When you described no clear evidence multiuser on
2 the screen in your presentation, with respect, I suggest you have adopted
3 entirely the wrong approach. Can you comment --
4 PRESIDING JUDGE RE: You're being challenged. Did you adopt the
5 wrong approach or not? Because Mr. Young will probably - probably, we
6 imagine - suggest to you in a moment the approach you should have
7 adopted.
8 So do you agree with him that you were completely wrong in your
9 approach or not?
10 THE WITNESS: Well, I'd like to divide this chunk of text into
11 two issues: One, I gave my personal experience because you were
12 repeatedly pressing me to define what single user is. Now, I would
13 suspect most people in the Chamber possess a phone, of which they are
14 likely the single user. And I was simply trying to show the simplicity
15 of single user is single user.
16 Now, I adopt a much more complex approach based upon the
17 available evidence, so I reject your assertion that I have used an
18 approach that is fundamentally flawed.
19 MR. YOUNG:
20 Q. Well, I'm going to suggest this, that if you're looking at a
21 phone, for example, one that has three years, on the face of it, regular
22 activity, you cannot presume from the start it to be a single user phone.
23 Would you agree with that?
24 A. Sir, it doesn't matter what I presume from the start. I have to
25 look at the available evidence in its totality.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 56 Cross-examination by Mr. Young (Continued)
1 Q. Let me put it -- this --
2 JUDGE NOSWORTHY: Mr. Young.
3 MR. YOUNG: Forgive me, yes.
4 JUDGE NOSWORTHY: Mr. Donaldson, in relation to the single user
5 usage, do you make any distinction between a professional and a business
6 phone and a personal one?
7 THE WITNESS: Yes, I would. And a business phone has
8 characteristics which are usually readily identifiable. You may often
9 see business switchboards high amongst the contacts. You can see the
10 phone change hands once a month sometimes. I've seen many things. But
11 between a commercial phone and a personal phone, I can certainly
12 differentiate.
13 MR. YOUNG: Yes.
14 Q. What I'm going to ask you is this: Whether or not there is
15 evidence of multiuse, surely that doesn't necessarily correlate with a
16 question as to how many users there were?
17 A. Could you just rephrase the question, sir? I'm not sure I
18 understand.
19 Q. Right. Yes, certainly. What I'm doing is I'm referring to --
20 I'm coming back to the -- a point that I'm taking in relation to how you
21 define single user. If you remember you said when I asked you how you
22 define it and you said "not multiuser."
23 So what I'm putting to you is this: Whether or not there is
24 evidence of multiuse, surely that doesn't necessarily correlate with a
25 question as to how many users there were. The one doesn't follow the
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 57 Cross-examination by Mr. Young (Continued)
1 other.
2 A. So when you have clear cogent evidence of multiuser, that doesn't
3 correlate with the fact that it may be a multiuser phone? I -- I don't
4 understand the way the question is phrased, sir.
5 Q. Do you accept that when you are making -- you're demonstrating --
6 seeking to make this argument, you are effectively trying to prove a
7 positive and I'm suggesting you can't rely on a negative. For example,
8 let's put it in a way that a -- a clearer way.
9 Even if there was no compelling evidence that a phone was a
10 multiuser phone, all right, there is no compelling evidence, that doesn't
11 necessarily mean that there weren't five people using it, does there?
12 A. I would look at the totality of the use of the phone and see if
13 there were patterns that would be indicative of a multiuser. I mean,
14 ultimately I'm not trying to present an argument. I don't have a dog in
15 this fight. I am just trying to show the evidence that exists. It is
16 for the Chamber to decide their view. I'm not making arguments.
17 Q. Well --
18 A. I'm trying to demonstrate facts.
19 Q. Mr. Donaldson, thank you for that answer. What -- what I'm going
20 to do is make a positive suggestion to you as to, perhaps, a better way,
21 and maybe we can agree this, a better way to provide some guidance to the
22 Judges as to, perhaps, the perfect profile of a phone exclusively
23 controlled by a single user. And I'm just going to make the suggestion
24 and ask you to comment.
25 Would you agree that these five following characteristics perhaps
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 58 Cross-examination by Mr. Young (Continued)
1 would be included in a perfect profile for a single user phone, for
2 example: One, where the contacts of the phone are exclusive to the
3 single user. Would that be a useful indicator of single use?
4 A. I have no idea what that last sentence means, sir, "the contacts
5 of the phone are exclusive to the single user"? How would one gauge
6 that, sir?
7 Q. Right. You don't -- you don't know what I mean when I -- I --
8 when I suggest that some contacts are more -- can be more -- deemed to be
9 more exclusive to one person than another? That doesn't -- you don't
10 comprehend that?
11 A. No, I feel very foolish, but you're going to need to explain it
12 to me because I just don't understand how you're gauging this and what
13 measures you're using and what the relationships between people are and
14 the phones. I'm lost.
15 Q. I see. Well, let me help you. Let's say we have evidence of 50
16 people -- of 50 people or -- let's say -- no, let's say five people, and
17 each of the five have ten family members. All right? If you follow me.
18 One family -- one person has ten family members which are all close,
19 immediate, blood family. The other four people have family members but
20 there is no relationship whatsoever between the other 40 and the ten that
21 seem to be people exclusively connected to that first person. Are you
22 understanding what I'm saying now?
23 PRESIDING JUDGE RE: Say there are two people using the phone,
24 you and your wife, and you've got a long-lost Auntie Marjory. Your wife
25 doesn't know Auntie Marjory. Auntie Marjory knows you and you put in
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 59 Cross-examination by Mr. Young (Continued)
1 there Auntie Marjorie's number. Your wife doesn't know Auntie Marjory.
2 That would be an example. Yes, Mr. Young?
3 MR. YOUNG: Yes, this is just in theory. Yes.
4 PRESIDING JUDGE RE: That being a contact -- a single -- a
5 contact which is -- pertains only to one of the single -- one person
6 who's using the phone that at least two people are using.
7 THE WITNESS: Now I understand it, Your Honour. So we're on
8 about a multiuser phone, not a single user phone in this theoretical
9 example.
10 MR. YOUNG:
11 Q. Right. Well, I'll come back to the question. I'm suggesting --
12 I'm going to suggest five different characteristics. Of the perfect
13 profile of a phone which is exclusively controlled by a single user. So
14 you -- do you understand the point? I am suggesting the first point
15 would be -- first characteristics, in theory, would be where the contacts
16 are exclusive to that single user. Do you accept that?
17 A. I don't accept that. I just -- I -- if it's not the example the
18 Presiding Judge gave me, I just don't understand. But maybe if you read
19 them all out?
20 Q. So are you saying then if you can prove that certain contacts are
21 exclusive to a user, that's not a helpful factor?
22 A. But I don't understand what you mean by "exclusive." The only
23 person that they ever speak to? I'm not trying to be difficult, and I
24 don't -- I'm not trying to be difficult, but I can't agree.
25 Q. Fair enough.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 60 Cross-examination by Mr. Young (Continued)
1 PRESIDING JUDGE RE: Your wife never talks to Auntie Marjory
2 because they had a big fight once. So you exclusively talk to Auntie
3 Marjory. That works?
4 THE WITNESS: It does. But if we're discussing a single user
5 phone, then I speak to Auntie Marjory. Yes, I -- but I'm perhaps not the
6 only person who does. I'm sorry. I'm lost, Your Honour.
7 MR. YOUNG:
8 Q. Let me move on to -- to point two. Would it be helpful if you're
9 dealing with, in theory, with a phone, and there is a solid body of text
10 evidence where the texts are solely to and from one person. Would that
11 be helpful in trying to demonstrate it's a single user phone?
12 A. It would be helpful. It would certainly be a good factor. But I
13 would be cognizant that, for example, perhaps a child is the user of the
14 SMS, and I would look at everything in its totality. But I agree it
15 would be a good indicator.
16 Q. Thank you, sir. Thirdly, if you've got a geographical profile
17 which only matches this particular individual, again presumably that
18 would be rather helpful to -- to make the argument it's a single user
19 phone, would it not?
20 A. Certainly. And the more complex the geographic profile, the
21 better.
22 Q. Excellent. Well, we're on the same page here. Fourthly, what
23 about where we -- all the -- all the witness attribution in the case
24 points to a single user. Would you agree that's a pretty useful
25 characteristic to make the argument it's a single user phone?
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 61 Cross-examination by Mr. Young (Continued)
1 A. Yes.
2 Q. And finally, can I suggest a fifth characteristic, where all the
3 documentation points towards the fact it's a single user phone. Do you
4 agree that also would be rather helpful?
5 A. If all the documentation pointed towards the same name, yes.
6 Q. Thank you. Well, look, we can do this, Mr. Donaldson, in a short
7 way or a long way. But in an effort to shorten the discussion, and
8 leaving aside the issue of who the users or user may have been, do you
9 accept that the -- you are nowhere near, in relation to 018, nowhere near
10 being able to demonstrate these five characteristics in relation to that
11 phone, are you?
12 A. I don't believe I'm the one to judge, sir. I believe I would
13 like to look at the evidence in its totality, which is all of the
14 evidence in my report.
15 Q. Right. I will leave the five. I'm not going to go through them.
16 I'm going to go to the next -- the next point that you make, sir, which
17 relates to, if you recall, and for the benefit of the learned Judges, the
18 second point you made to advance the argument was in relation to
19 non-service SMS statistics. Do you remember saying that? This was in
20 slide 7 of your 018 presentation, sir.
21 A. Yes, I recall highlighting the difference in use of the two
22 phones.
23 Q. Yes. And just to remind the learned Judges, I think the figures
24 you gave were some figures of 2 per cent for non-service SMS in relation
25 to 018, and then up to 23 to 27 per cent in relation to the two other
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 62 Cross-examination by Mr. Young (Continued)
1 numbers; correct?
2 A. Correct.
3 Q. I don't -- I don't criticize you for it, but it's fair to say I'm
4 not aware that these figures were set out, nor were the underlying
5 sources in your report, but they are the figures you gave. These figures
6 were first mentioned in that Sabra PowerPoint, weren't they?
7 A. Yes, but they were also in the underlying material from probably
8 2011. These aren't any secrets. These are accessible to anybody.
9 Q. All right. When you -- Mr. Donaldson, when you are pointing to
10 an alleged -- what you're -- what you're pointing to, forgive me, is an
11 alleged increase in the use of phone - that's people-to-people - activity
12 over the period from 2001 to 2006, 2007, are you not?
13 A. What I'm trying to point to is the difference in the use of SMS
14 between the three phones. And I'm seeking to align that with the other
15 available evidence.
16 Q. Can I suggest that over that period of time, it's right to say
17 there was an exponential growth in the use of mobile phones. Do you
18 agree?
19 A. I can't comment on that.
20 Q. Well, with respect, sir, you are senior communications analyst in
21 communications. I suggest, sir, that might be one very simple
22 explanation for the increase in the figures, and I suggest that the
23 percentage-wise may have nothing whatsoever to do with the issue of
24 single or multiuser, simply that people use more phones in later years.
25 A. But 018 we know had the facility to exchange text messages, and
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 63 Cross-examination by Mr. Young (Continued)
1 we saw the name Assad as a predominant name, so I don't agree with your
2 argument. I believe that the user of 018 didn't make that many text
3 messages; whereas the user of the latest phones made more. And we've
4 seen those at great length.
5 Q. You say predominant phone. There were two texts in the name
6 Assad. And if you recall, you agreed with me that somebody receiving two
7 texts may come under the category of an occasional user. You may
8 remember saying that.
9 But what I'm pointing out to you is this, sir, that whilst mobile
10 phones may have been a relatively new phenomenon in 2002 to 2004, isn't
11 it fair to say that may have changed dramatically in 2005 and 2006 where
12 people were getting used to in Lebanon, as they were around the world, to
13 texting people on their phones; hence, the increase, potentially, in the
14 statistics? Is that not a fair point?
15 A. I think without any underlying evidence, I don't think it's a
16 fair point. I think that you've just constructed an argument to suit
17 yourself. But if we looked at usage figures or some evidence to support
18 it, then I could perhaps agree with it. But I don't think that it's a
19 fair point you're making.
20 Q. I see. Are you saying that -- that we shouldn't take into
21 account real life, world activities and the use of phones in Lebanon at
22 that time? Is that an irrelevant consideration?
23 A. Not at all, sir. I would love to see the figures if you have
24 them. But I don't have them, and so I can't comment about changes in --
25 that specifically happened in 2005. But I'm sure if you have them,
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 64 Cross-examination by Mr. Young (Continued)
1 you'll show them to me.
2 Q. If you can't comment on the figures and the statistics, then why
3 do you make the argument in the first place? Because what you're doing
4 is you're eliminating or ruling out an argument that you haven't even
5 considered. It's a matter for you if you wish to comment. I'm
6 suggesting that, with respect -- with great respect, and there is nothing
7 personal here, I'm suggesting you've adopted a flawed approach.
8 PRESIDING JUDGE RE: It's being put as a proposition to you,
9 Mr. Donaldson, that you adopted a flawed approach.
10 THE WITNESS: I reject --
11 PRESIDING JUDGE RE: But this time on a different basis.
12 THE WITNESS: I again reject that. I have based my position upon
13 available evidence and not theoretical evidence which may or may not
14 exist.
15 MR. YOUNG: Well, thank you.
16 Q. One last question: Do you not accept that there was a lot more
17 SMS activity or a lot more SMS being sent in 2005 as opposed to 2002?
18 A. Within the whole of Lebanon? I don't have those figures, sir.
19 PRESIDING JUDGE RE: It's a matter of common sense. As the use
20 of mobile phones increased, the penetration increased -- I mean, I don't
21 have the Lebanese figures either. But we all know from our personal
22 experience that mobile phone usage has increased as the cost of handsets
23 has decreased and mobile plans have become more competitive. And with
24 the introduction of smartphones, that also increased the penetration and
25 the reach; that is, more younger people, teenagers and primary school
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 65 Cross-examination by Mr. Young (Continued)
1 children started have their own phones. Maybe not in 2005 but certainly
2 now. That the sort of thing Mr. Young is suggesting to you.
3 THE WITNESS: Well, I agree with everything you say, Your Honour.
4 I just don't have figures for 2005 as opposed to 2002 just available to
5 me. In terms of the generalities, I certainly agree it's a growing
6 industry.
7 MR. YOUNG:
8 Q. Thank you, Mr. Donaldson. I'm going to move on now. I'm coming
9 now -- this is the last section in my cross-examination, and I'm going to
10 turn to this now. I'm going to call -- call this section the alternative
11 018 user section.
12 Just to explain, in due course, sir, I'm going to be showing you
13 original documents -- or I'm going to be showing Their Honours and those
14 in court original documents. And we have prepared a redacted set for the
15 public so as to protect it -- identity of two individuals in particular
16 for reasons that will become clear, because I will be making the
17 suggestion that there are -- there are -- they are two candidates to have
18 been users of the 018 number at the material time other than Assad Hassan
19 Sabra.
20 MR. YOUNG: So I'm going to start the section by asking for on
21 the screen, please, not for public broadcast, item 111. This is -- if it
22 helps, Exhibit P01075. And I'm not going to describe the document. I'm
23 just going to ask you to look at it. I'm sorry, it's not on my screen
24 yet. It's coming. Yes. Yes. I --
25 Q. Simply to say we can see -- I can describe in general terms the
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 66 Cross-examination by Mr. Young (Continued)
1 nature of the -- the document as being a personal status extract for a
2 part of a Lebanese family whose name I do not read. But can I invite
3 you, sir, to look at the fourth row down, where you see -- or the second
4 row up from the bottom, one -- one male person is named there. Can you
5 see that name, please, sir? So it's the second row up from the bottom on
6 the left.
7 A. Yes, I'm aware of this individual.
8 Q. Yes. And just one point first: Can you note the spelling of the
9 first name with a single -- I -- there is no problem with the first name,
10 but you can note the consonant for the second -- the first consonant and
11 the two As in the middle; correct?
12 A. Yes.
13 Q. Right. And can we see to the right of the name basically details
14 about date of birth, religion, and marital status; correct?
15 A. Yes.
16 Q. Now, sir, so that you know where I'm going, I will refer to this
17 person as Alternative User 1 from now on. Alternative User 1. Above
18 that name in the third -- in the middle column, can you see another male
19 name, who I do not read out. I'm going to describe this person going
20 forwards from now as Alternative User 2. Can you see that person?
21 A. Yes, I'm just making a note, sir.
22 Q. Thank you. So 1 is the second row up; 2, the middle one. And
23 I'd be grateful if -- I thank you for making a note. If we could both
24 use the same terminology referring to the two different individuals.
25 MR. YOUNG: So if that can come down from the screen now, please.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 67 Cross-examination by Mr. Young (Continued)
1 And can we go to item 5, again not for broadcast --
2 PRESIDING JUDGE RE: Mr. Young, for the purposes of the
3 transcript why can't we use the name? It's been used before. The
4 Alternative User 1 and 2. It would make it much clearer, wouldn't it?
5 MR. YOUNG: Your Honour, we considered this. It's a matter for
6 Your Honours. But I'm making -- I'll be making -- I'll be making
7 assertions that these two individuals are viable candidates for being the
8 user of the 018 phone. So for that reason, I thought it prudent to give
9 them the name 1 and 2.
10 PRESIDING JUDGE RE: The users of the phone are therefore
11 implicated in the conspiracy and the false claim of responsibility or
12 merely users of the phone? There is a distinction, of course.
13 MR. YOUNG: Well, all hopefully will become clear. I am going to
14 take Your Honours directly to documentation about that and it will be a
15 matter for Your Honours. But I would be prefer -- I would be more
16 comfortable, please, if I could seek to protect their identity given the
17 matters I'm going to raise. I don't think Mr. Donaldson has a problem
18 with that.
19 PRESIDING JUDGE RE: Mr. Donaldson doesn't answer, so he probably
20 doesn't have a problem with it. Just so it's completely clear, Alternate
21 User 1, 1 -- there is five rows. And it appears -- in the original, are
22 these handwritten or records?
23 MR. YOUNG: I think these are -- these are from the Lebanese
24 Republic, the Ministry of Interior and Municipalities. They've come from
25 the --
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 68 Cross-examination by Mr. Young (Continued)
1 PRESIDING JUDGE RE: Mr. Young, that's not my question. Are they
2 handwritten?
3 MR. YOUNG: We can go to the original if need be.
4 PRESIDING JUDGE RE: If you don't know, it's okay.
5 MR. YOUNG: I don't know.
6 PRESIDING JUDGE RE: So I'm just trying to work out for the
7 transcript. Alternate User 1, the first one is crossed out and
8 apparently that's what you do when you die. They cross you out and put
9 in your date of death. So the second one was alive. Third, fourth, the
10 four names beneath the dead person, Ahmad Salloum, are all listed. All
11 right? So which is Alternate User 1? Which number? And which is
12 Alternate User 2?
13 MR. YOUNG: Your Honour, I explained Alternate User 1 is an
14 expression I'd like to use for the person named in the left-hand column
15 in the second row up from the bottom.
16 PRESIDING JUDGE RE: All right. Okay. So we've got to read up
17 rather than down. Okay. And the Alternate User 2 is which one?
18 MR. YOUNG: The one above. I've got no problem with naming the
19 first name, if that helps, in relation to Alternate User 1 as Asaad. But
20 if we go to the name above, I -- I don't intend to name -- there is no
21 need to name the first or the second name.
22 So the second row above -- the second row from the bottom is the
23 first alternate user. The next one above is the second. I hope that's
24 clear.
25 And to give more information on this, can I have that removed and
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 69 Cross-examination by Mr. Young (Continued)
1 can we have, please, item 5 on the screen.
2 JUDGE AKOUM: Actually, I want to correct something in line 23,
3 page 67, in relation to Alternate User 1 as the name should be written
4 with double A because it makes a lot of difference in Arabic.
5 MR. YOUNG: Yes, we'll be coming onto that in some detail. They
6 are two different names in Arabic. Yes, thank you.
7 Q. And do we have -- can you see here again, just to -- can we see
8 here a document here which helps a little bit further in terms of putting
9 the individuals into perspective.
10 PRESIDING JUDGE RE: This is the family chart. What's the
11 exhibit number, please?
12 MR. YOUNG: The exhibit number, Your Honours, is P01960. P01960.
13 Family chart.
14 And, yes, if we can see here -- I think if we can focus in,
15 please, on the -- towards the right in the middle. Towards the right.
16 Yes. If we can focus in -- if the cursor can go to the right. Yes,
17 below that. That's it. To that -- that individual there. We can see
18 there in that chart is identified the second alternate user. Then there
19 are said to be other family relations. But Alternative User 1 is not
20 appearing -- that name doesn't appear there.
21 Thank you very much. If that can now be taken down from the
22 screen now.
23 If I may, can I now have on the screen it's the first of a series
24 of four UNIIIC documents I'd like to take you to. Before I do -- let's
25 have the first one on the screen first and then I'll explain matters to
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 70 Cross-examination by Mr. Young (Continued)
1 deal with these -- to do with these reports. Could we have item 156 on
2 the screen, please.
3 PRESIDING JUDGE RE: Is this the one that's headed: Information
4 received by the UNIIIC from the --
5 MR. YOUNG: Yes.
6 PRESIDING JUDGE RE: -- Lebanese Internal Security Forces on the
7 12th of November, 2008 --
8 MR. YOUNG: Yes, it's not for broadcast, please. Not for
9 broadcast.
10 PRESIDING JUDGE RE: -- regarding number 018.
11 MR. YOUNG: Yes. Item 156 is unredacted original. The redacted
12 versions are at item 502 for the Court's assistance.
13 Q. So, Mr. Donaldson, can you see an unredacted document that you, I
14 think, may be familiar with. Can you see this is a -- a document that's
15 come from the UNIIIC; correct?
16 A. Yes.
17 Q. Yes. Can I make this clear just generally my approach: When
18 I -- if I'm referring to UNIIIC or the ISF in particular, I'm going to
19 discuss with you the ISF in a general way. I'm not going to ask you
20 about -- to comment on a specific branch or department. I'll be
21 referring to the ISF in a general way. So if we can both do the same,
22 I'd be grateful. I'm -- I'm having regard to matters considered.
23 So if we look at this, can we see here this appears to be -- this
24 appears to indicate that it relates -- this is a memo that relates to a
25 meeting between UNIIIC staff and members of the -- sorry, and
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 71 Cross-examination by Mr. Young (Continued)
1 representatives of the ISF. Do you see that?
2 A. Yes.
3 Q. And may I ask you, do you know when this -- the date of when this
4 document was prepared?
5 A. No.
6 Q. But can you confirm this is the first that we understand to be in
7 a series of five documents in relation to an interchange between the
8 UNIIIC and the ISF; correct?
9 A. This would be the first, correct.
10 Q. Right. Thank you. Now we're going to look at these documents in
11 some detail as I suggest they explain the reason why the Lebanese ISF
12 originally attributed the 018 number to the male person I've described as
13 Alternative User 1 and not to Assad Sabra.
14 So let's look -- looking at this document here, may I ask -- and
15 if you're uncomfortable with any detail -- I'm not going to -- I'm going
16 to try and avoid naming names of individuals. And if you're
17 uncomfortable at all with the questions, please say so.
18 Were you at a meeting that's -- the meeting that's described here
19 in the document?
20 A. No.
21 Q. When did you become aware of this -- this UNIIIC memo, please?
22 A. It would have been November 2008 and probably around the 13th of
23 November.
24 Q. I'm obliged. Presumably you are familiar, therefore, with the --
25 the content of this memo.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 72 Cross-examination by Mr. Young (Continued)
1 A. I've certainly read it.
2 Q. Because at that time, can you remind me, were you yourself a
3 UNIIIC staff member?
4 A. In November 2008? Yes.
5 Q. Are you aware of who, I don't ask for the names, but who was at
6 the meeting?
7 A. I would be aware, yes.
8 Q. There is only one name I'm going to ask you about in relation to
9 the ISF, and the Prosecution are aware of this. Can you confirm if
10 Wissam El-Hassan was at that meeting?
11 A. Not from my memory, no.
12 Q. Other than the -- was it simply the UNIIIC staff and the ISF, or
13 were there other agent -- agencies also present?
14 A. I don't know as I wasn't there.
15 Q. The content of this clearly is highly relevant, though, is it
16 not, to the attribution at that time in relation to the phone at least;
17 correct?
18 A. Well, I think context is everything.
19 Q. Do you know if the meeting was tape recorded?
20 A. I don't know as I wasn't there.
21 Q. Well, have you -- have you seen a -- any other documentation into
22 that self-same meeting on the 12th of November, 2008?
23 A. Not other than the minutes provided to me.
24 Q. So when -- when were you first provided with this?
25 A. Well, I answered earlier it would have been November 2008 and
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 73 Cross-examination by Mr. Young (Continued)
1 probably around the 13th of November.
2 Q. So it was a colleague of yours who drafted it, was it?
3 A. Yes.
4 Q. Can we see here that -- that -- that in terms of the content, is
5 it fair to say that the Alternate User 1 who -- who has been -- had been
6 identified as the apparent user of the 018 number through SMS and
7 contacts with a landline; correct?
8 A. Correct.
9 Q. And is it fair to say that the memo goes on to explain -- refer
10 to two particular SMS, which I don't go to just now. With respect, sir,
11 looking at the document here, it doesn't appear to identify how long that
12 person, Alternative User 1, had been identified as the apparent user of
13 the 018 number. Can you help us as to what your understanding was about
14 that?
15 A. No, I have no more information than you do, sir.
16 PRESIDING JUDGE RE: Mr. Young, I'm looking at the time. How
17 much longer are you going to be?
18 MR. YOUNG: This is my last section. It's quite involved.
19 PRESIDING JUDGE RE: You know how you've accused Mr. Donaldson of
20 not answering questions.
21 MR. YOUNG: This -- this would take the rest of the day.
22 PRESIDING JUDGE RE: You promise?
23 MR. YOUNG: Yes, without any question. This is my last section.
24 PRESIDING JUDGE RE: All right. And I take it you want this
25 document tendered into evidence?
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 74 Cross-examination by Mr. Young (Continued)
1 MR. YOUNG: Yes, please.
2 PRESIDING JUDGE RE: There won't be any objection from the
3 Prosecution, will there? Nope.
4 MR. DESALLIERS: There will be no objection, Your Honour.
5 PRESIDING JUDGE RE: 5D413 will be 60280949 through to 60280950.
6 It's a investigator's note from the UNIIIC about a meeting on the 12th of
7 November, 2008, with the Lebanese Internal Security Forces. We'll take a
8 break now.
9 --- Luncheon recess taken at 1.16 p.m.
10 --- On resuming at 2.32 p.m.
11 PRESIDING JUDGE RE: I note for the record Mr. Mair has replaced
12 Mr. Hannis for Mr. Ayyash.
13 Yes, Mr. Young.
14 MR. YOUNG: Thank you.
15 Q. Yes, good afternoon, Mr. Donaldson. So I think I was -- we
16 had -- we were discussing the -- the first UNIIIC memo that's still on my
17 screen. Is it still on your screen, sir?
18 A. Good afternoon. It is.
19 Q. Thank you. So just to -- in terms of the -- the timeline and
20 your -- your own involvement, can you correct me if I'm wrong, when was
21 the first time that you were based in Beirut?
22 A. I arrived on the 1st of October, 2007.
23 Q. And may I ask were you still there in November 2008? And I
24 recall I asked you about this when I was considering your CV, but had
25 you -- had you -- had you -- were you remaining there or had you moved on
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 75 Cross-examination by Mr. Young (Continued)
1 to Leidschendam?
2 A. Yes, the team I was with had been relocated to Den Haag.
3 Q. So when it came to this -- this memo, I think-- in relation to
4 the 12th of November, 2008, I think you mentioned that you became aware
5 of it the day later and that your colleague was in the meeting. I don't
6 need to know his name. But presumably you were aware that the -- the ISF
7 were involved in investigations into different suspect names and numbers
8 way before 2000 -- sorry, way before November 2008?
9 A. Yes.
10 Q. The identification of -- of a name and an attribution, as we see
11 here on the 12th of November, presumably followed a process involving the
12 ISF team?
13 A. Well, I can't speak to that, sir.
14 Q. You see, when we look about -- when we look at this memo, we can
15 see that it mentions that the Alternate User 1 had been identified as the
16 apparent user. And then it refers to the 018 number. But it's -- it
17 doesn't talk about the discovery of 018, for example, as if it was a news
18 as we've seen in other examples. So what I'm saying to you is can you
19 help us with any evidence as to when -- how long you understood the ISF
20 may have had 018 on their radar for?
21 A. I understand now. I don't think it was particularly long. I
22 believe the identification of the number and this memo were fairly close
23 in time.
24 Q. Well, I thank you for that. Is that from your recollection or
25 maybe from a document that you've seen recently that reminded you?
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 76 Cross-examination by Mr. Young (Continued)
1 A. That's from my personal recollection of the process.
2 Q. So -- and I know it's a while ago and it's not easy to look back,
3 but to your knowledge at the date of this meeting, was Alternative User 1
4 the first person suspected of being the user of that number?
5 A. Alternative User 1 was certainly the first person reported as
6 being the user of that number, yes.
7 Q. Yes, I think I used the word "suspected" and then you replied
8 using the word "reported." Can you just explain the difference?
9 A. Well, when this information arrived, no checks had been made. No
10 independent corroboration had been undertaken. And being honest, the
11 capabilities back in November 2008 to attribute were not as advanced
12 within the UNIIIC as they are in 2017 within the Tribunal for Lebanon.
13 They were more limited in terms of the resources held.
14 Q. Well, we can see here that this other alternate -- not -- not
15 Mr. Assad Sabra, that somebody else was -- was, using your terminology,
16 reported there as another user. But what I'm asking you is are you
17 saying you're aware that there were other persons suspected of --
18 suspected of being the user of that number before Alternative User 1?
19 A. No, this was the first information I'd seen pertaining to the
20 potential user of 018.
21 Q. Thank you. Let me just turn now just -- just to one or two
22 questions now on the detail and then we'll move on. We can see here in
23 terms of -- if you wouldn't mind looking at the -- at the content of the
24 memo. We can see here that he's said to have been residing at an
25 address, which I don't refer to, but it's an address that you -- you know
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 77 Cross-examination by Mr. Young (Continued)
1 well, do you not?
2 A. I'm certainly well familiar with the street from a point of view
3 of where it is on a map.
4 Q. Yes. And we can see whatever the -- the correct name should have
5 been recorded for that person. But in this -- in this instance, the
6 first name is recorded as Assad with A-s-s-a-d in English; correct?
7 A. That is what's written.
8 Q. From your understanding, presumably one of your duties when
9 you're working with the UNIIIC was, quite properly, to liaise with the
10 ISF in Lebanon.
11 A. You mean my personal duties?
12 Q. Well, you and your colleagues. That was part of your job, wasn't
13 it, to -- to liaise with fellow partner agencies?
14 A. Yes, that's why I sought the clarification. There was a liaison
15 point, but that wasn't me.
16 Q. Yes. In terms of this, can you help us as to when the ISF had --
17 first had information of an address attributable to the Alternative
18 User 1?
19 A. I can't make any comment about that information or when it may
20 have become apparent to them as I wasn't at the meeting and I haven't
21 discussed this with them.
22 Q. Do you know whether they had any information on who else was
23 living at that address at the time?
24 A. I can't speak to that either, sir.
25 Q. All right. Did you understand the reference to a landline
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 78 Cross-examination by Mr. Young (Continued)
1 there -- I don't report -- I don't need to cite the actual number, but
2 did you understand the number there that's cited, did you understand that
3 to be a reference to the landline of the number where Alternative User 1
4 lived?
5 A. Certainly not in November 2008. And I have not seen -- I am not
6 aware of evidence other than this that houses Alternative User 1.
7 Q. The contact between the 018 number and the other landline number
8 there was -- was clearly one of the reasons, was it not, in your
9 understanding, why the ISF were attributing the 018 number to Alternative
10 User 1, weren't they?
11 A. Well, that is what is written here, but I can't speak to the
12 veracity of it.
13 Q. Without revealing -- this may be difficult. But without
14 revealing the identity of that alternative user, can you indicate -- can
15 you give us an idea of the -- what it was about the contact with the
16 number that was behind their thinking? Was it the fact of the contact,
17 frequency of the contact, timing, or something else?
18 A. Well, frankly, I can't speak for them. What I could do is give
19 an equivalent example based upon my work experience and thought
20 processes, but I certainly can't account for --
21 Q. No.
22 A. -- what they were thinking or doing. But I'd be happy to expand
23 so what I would expect and processes I may follow.
24 Q. Thank you, no, Mr. Donaldson. I'm going to concentrate and focus
25 on this and what led the ISF to draw this information to the attention of
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 79 Cross-examination by Mr. Young (Continued)
1 the body that you were working for.
2 Do you, therefore, know -- do you have some idea of what sources
3 the ISF relied on to come to that initial attribution conclusion in
4 relation to Alternative User 1?
5 A. No more than you, sir.
6 Q. Well, I don't need to know where they were or who you were with,
7 but had you not been in meetings with the ISF before? I appreciate you
8 were not at this one. But presumably you know what the -- what they are
9 like. So I'm asking you had you-- had you been in meetings with the ISF
10 where you're discussing intelligence in relation to attribution of
11 numbers?
12 A. I had a meeting with the ISF. And on account of that meeting, no
13 more meetings were held involving me.
14 Q. Yes. Is it fair to say the second stated reason in this memo for
15 the identification of this individual as the 018 user, did it not relate
16 to their SMS investigation? And did -- did they cite two examples of SMS
17 that they were interested in?
18 A. That is what is written. But again, you are asking me to comment
19 upon a memo which I didn't write about a meeting I didn't attend and
20 statements from people I wasn't present and I don't know who made them.
21 So I can only confirm what's written in front of me. I think you'll
22 appreciate that.
23 PRESIDING JUDGE RE: Mr. Donaldson, a moment ago you said you
24 only had one meeting with the ISF, for unexplained reasons. What did you
25 mean by that?
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 80 Cross-examination by Mr. Young (Continued)
1 MR. DESALLIERS: Your Honour, may I intervene at that point. I
2 believe this part that you've just touched upon is covered by Rule 118,
3 and so I -- I want to flag it at this point because it is important. It
4 is a very difficult situation. We're trying to find balance and allow
5 questions from the Defence, and obviously also from the Bench and from
6 the Defence, but details of meetings between UNIIIC representatives and
7 ISF officers are in principle covered by Rule 118 and could not be the
8 subject of questioning to Mr. Donaldson.
9 So we have provided information --
10 PRESIDING JUDGE RE: Okay. I'll just go to Rule 118. It is
11 headed "Information never Subject to Disclosure without Consent of
12 Provider."
13 "(A) Where the Prosecutor is in possession of information which
14 was provided on a confidential basis and which affects the security
15 interests of a State or international entity or an agent thereof, he
16 shall not disclose that information or its origin without the consent of
17 the person or entity providing the information."
18 We are not talking about the content of the meeting. We're
19 talking about -- or the information which was provided. The fact that
20 there was a meeting. Mr. Donaldson said there was a meeting and as a
21 result of that meeting he never went to another one. I'm sure he can
22 answer that without disclosing any information that's been provided by
23 the Lebanese authorities that were provided on a confidential basis and
24 affect the state interests -- or, sorry, it affect the security interests
25 of the state.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 81 Cross-examination by Mr. Young (Continued)
1 I don't believe you can make a claim for the fact that he had a
2 meeting.
3 MR. DESALLIERS: Well, Mr. Donaldson already explained that he
4 had a meeting. But I am raising now to explain that the content of that
5 meeting could not be explored as it is covered by Rule 118. So --
6 PRESIDING JUDGE RE: You mean the provision of information by the
7 Lebanese authorities, pursuant, of course, to the Security Council
8 Resolution, to the UNIIIC or to the Prosecutor?
9 MR. DESALLIERS: Yes, Your Honour. But ...
10 PRESIDING JUDGE RE: Are you getting instructions on the screen
11 there?
12 MR. DESALLIERS: No, I'm looking at the transcript, Your Honour,
13 to make sure that I understood your question correctly.
14 PRESIDING JUDGE RE: I'm separating the information provided by
15 the Lebanese to Mr. Donaldson or whoever was there versus the fact that
16 there was a meeting, and the possible reasons why Mr. Donaldson never had
17 another meeting.
18 MR. DESALLIERS: And as I said, I'm raising to flag this,
19 Your Honours, because I would rather make it clear before questions are
20 put. Because the fact that there is a meeting, it's already been said by
21 Mr. Donaldson. But I wanted the record to be clear that the content of
22 such meeting could not be the subject of discussions or questions before
23 the Court.
24 So the fact that there's a meeting, it has already been said by
25 Mr. Donaldson. So I think I've made my point.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 82 Cross-examination by Mr. Young (Continued)
1 PRESIDING JUDGE RE: Mr. Desalliers, how can Mr. Donaldson saying
2 the reason he didn't have another meeting reveal of itself the content of
3 the information which the Lebanese provided to the UNIIIC? That's what's
4 escaping me. There are all sorts of ways of answering the question.
5 MR. DESALLIERS: I just thought it was my duty to raise this
6 point, Your Honour. I think it -- I wanted it to be clear for the
7 record. I didn't understand that he was asked the reason why he didn't
8 have another meeting, maybe I misunderstood.
9 But in any case, Your Honour, I don't have anything to add at
10 this point. But I thought it was important to be put to the attention of
11 the Chamber.
12 PRESIDING JUDGE RE: The question I asked was:
13 "Mr. Donaldson, a moment ago you said you only had one meeting
14 with the ISF, for unexplained reasons. What did you mean by that?"
15 I'm at a loss to see how that -- how him saying what he meant by
16 only having one meeting infringes Rule -- invites an infringement of
17 Rule 118. Mr. Donaldson can surely answer the question without
18 infringing Rule 118, that is, the information that the Lebanese might
19 have given him meeting.
20 MR. DESALLIERS: Well, Your Honours, I also don't know what the
21 answer is going to be provided to that question. It is also --
22 PRESIDING JUDGE RE: How can you make the claim if you don't know
23 what the answer -- look, you can only make a claim under Rule 118 if you
24 are certain that the Prosecutor is in possession of information provided
25 on a confidential basis affecting the security interests of a state. How
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 83 Cross-examination by Mr. Young (Continued)
1 can you make the application if you aren't aware of what happened at the
2 meeting?
3 MR. DESALLIERS: Your Honour, that's not entirely what I was
4 saying. What I was saying is I wanted to bring to the attention of the
5 Chamber what I believe are the limitations. This is also to the benefit
6 of Mr. Donaldson who is asked to answer questions. Maybe that assists in
7 clarifying what he can or cannot do. But this -- Your Honour, this is a
8 difficult position, but it is a position that once the information is
9 given, then we have a breach of this Rule.
10 So I just wanted to make sure that our position is stated on the
11 record. Mr. Donaldson has heard what I said, so has the Bench and the
12 Defence. But it is a matter of caution, Your Honour.
13 JUDGE BRAIDY: But, Mr. Desalliers, in 2007, the mission of the
14 UNIIIC is well known, and the cooperation between the UNIIIC and the
15 Lebanese authorities is also well known.
16 MR. DESALLIERS: But, Your Honour, with respect, the details of
17 meetings is another matter altogether.
18 PRESIDING JUDGE RE: All right.
19 Mr. Donaldson, the question I was asking you. You've heard
20 Mr. Desalliers flag a possible claim under Rule 118. Although, he
21 doesn't know what you're going to say or what the meeting was about or
22 anything about it. Are you able to answer my question?
23 THE WITNESS: The --
24 PRESIDING JUDGE RE: Bearing in mind the potential breach of
25 Rule 118 if you've been provided with information that -- on a
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 84 Cross-examination by Mr. Young (Continued)
1 confidential basis that affects the security interests of a state and
2 you're not allowed to disclose it without the -- that provider's consent.
3 THE WITNESS: Your Honour, I will be able to answer the question.
4 And I would also thank Mr. Desalliers for providing that focus.
5 The reason I paused is it's for me personally a slightly delicate
6 matter. I met with the investigator who, seven days later to the hour,
7 was murdered by a car bomb. And after that occurred, it was decided I
8 would not be attending more of these meetings. Shortly thereafter, we
9 were moved over to The Hague.
10 PRESIDING JUDGE RE: Now was that Captain Eid?
11 THE WITNESS: Yes, Major Eid.
12 PRESIDING JUDGE RE: All right. Thank you. That gives a lot --
13 that gives context and that gives a personal explanation. Yes, thank you
14 very much.
15 Yes, Mr. Young.
16 MR. YOUNG: Yes, thank you. Can we just go back to the memo and
17 I just want to take you to the two SMS, please, that we have.
18 Q. Now in relation to the SMS, may I ask you did you become aware
19 whether these SMS represent the original texts that the ISF have provided
20 to the UNIIIC?
21 A. I don't believe they are the same as the original texts.
22 Q. Can you help us as to what you understood the differences to be
23 between these texts and the original texts?
24 A. Well, what I am referring to is what's on the screen in front of
25 me which was written by an investigator subsequent to a meeting that I
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 85 Cross-examination by Mr. Young (Continued)
1 wasn't at. But I can see that it is not verbatim what I see in the
2 originals before me.
3 Q. Can you recall whether the originals at the time in 2008 were the
4 same as the originals which had been put before the Court, or do they
5 differ -- differ in any way?
6 A. They would be the same.
7 Q. The investigator that wrote this up, are you -- I presume you're
8 referring to an investigator from within the UNIIIC, are you, sir?
9 A. Yes.
10 Q. We -- so presumably what you're saying is it's that investigator
11 that subsequent to the meeting was the one who put the words in brackets
12 or in parentheses; is that right?
13 A. Yes.
14 Q. Can I ask you was it a -- are you able to say if this was a
15 Lebanese or non-Lebanese investigator?
16 A. My understanding is it would be a non-Lebanese investigator.
17 Q. I see. Do you know whether any other derivatives of the word
18 "Asodi" were discussed during that meeting or with you personally in
19 relation to this text?
20 A. I -- I can't provide anything helpful, and I don't know the
21 contents of the meeting beyond the memo which you have as well.
22 Q. Well, I don't think you'll be able to assist with this but I'll
23 try. Did you or your team ever consider that Asodi could have been a
24 reference to an individual with that surname as opposed to a derivative
25 of a first name?
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 86 Cross-examination by Mr. Young (Continued)
1 A. That is not something I've heard before, no.
2 Q. Did anyone in your team consider whether or not Asodi could have
3 been, for example, that -- another Arabic first name other than Assad,
4 possibly Azwaad [phoen] or something different to Assad?
5 A. I would simply suggest that we look at Asodi as it is written.
6 And me or my team, the value of us ascribing different names, I don't
7 understand.
8 Q. Right. Let's move on to another document.
9 MR. YOUNG: Can we take this down from the screen, please.
10 Q. Because it's right to say from that meeting, did the ISF provide
11 the UNIIIC with an additional document, which I'm going to put before you
12 and ask you to have a look at without saying too much more?
13 MR. YOUNG: If we could have item 156 in the Sabra queue on the
14 screen, please. Please, this is not for broadcast.
15 PRESIDING JUDGE RE: Is this the same one?
16 MR. YOUNG: This is different to the other one that was shown
17 earlier. I'm sorry, that's -- that's not it. If we can have -- it's --
18 it's a chart-type document with photographs. And it's the second page,
19 please, of item 156 in the Sabra queue. I can give the ERN range:
20 60280949 to 60280950. And it's 5D413 exhibit number. And if we can
21 please turn that round. If we can rotate that. Thank you. If you could
22 pause that there, please.
23 Just to identify this document.
24 Q. Can you confirm, Mr. Donaldson, it's right to say this is the --
25 a document that was provided by the ISF at the time of that meeting or in
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 87 Cross-examination by Mr. Young (Continued)
1 the meeting on the 12th of November, 2008?
2 A. I would imagine so.
3 Q. Well, if -- if we -- I don't go back to the previous memo unless
4 you want to, but you may remember at the end of the previous memo it
5 referred to a document being passed on. Anyway, do we see here a -- I
6 can say a -- a family chart with some photographs and some names. I
7 think they're in Arabic. Can you see that?
8 A. Yes.
9 MR. YOUNG: And if -- if the court officer would be so kind to
10 focus in on the -- the lower left two males. If we can bring the cursor
11 down -- down to -- yes, to these four. And to the two on the left.
12 Q. Is it right to say that the male on the left, bottom left there,
13 that that person is alternate -- Alternative Male User 2, and the one to
14 his right is Alternative User 1; correct?
15 I'm being reminded, in fact, there is an English version, as this
16 is rather unfair for you as perhaps you don't recognize the photographs.
17 MR. YOUNG: If we have an English -- I think we have an English
18 version --
19 THE WITNESS: Sir, I believe you're correct.
20 MR. YOUNG:
21 Q. Oh, right. Thank you. We'll leave it there then. So we can see
22 both Alternative User 1 and 2 there in the document that the ISF have
23 provided. Thank you. That's all I -- that's all I ask. Thank you.
24 MR. YOUNG: That can come down from the screen.
25 Your Honours, I'd be grateful for admission of this, please. Oh,
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 88 Cross-examination by Mr. Young (Continued)
1 it's already admitted.
2 Let me move on then. Can I go to item 154, please. Thank you.
3 And just to identify it. This is the -- a UNIIIC memo in relation to
4 information from the ISF on the 22nd of November, 2008. And the --
5 the -- this is not for broadcast. This is the unredacted version: ERN
6 60280089. Your Honours, the redacted version is item 503 in the Sabra
7 queue.
8 Q. So here, sir, is this the second in the series of the UNIIIC
9 documents on the 018 and 095 numbers?
10 A. I believe for the transcript it was 095 instead of 051. And I
11 believe this would be the second document.
12 Q. Yes, I'm grateful. Just for your information, I'm going to deal
13 with them in chronological order and I'm going to take you to four of
14 them.
15 So this -- it's fair to say, to describe this briefly, because
16 I'm anxious to go to the next one, this -- in this one, is this more to
17 do with information provided by the ISF in relation to the 095 number;
18 correct?
19 A. Correct.
20 Q. Again, I take it from your evidence that you were not at this
21 meeting?
22 A. Correct.
23 Q. But would it have been a colleague of yours that compiled this
24 memo in relation to that meeting on the 22nd of November?
25 A. Yes, and I believe it would be the same colleague as the previous
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 89 Cross-examination by Mr. Young (Continued)
1 memo who was the liaison point.
2 Q. Yes, well, just -- just briefly, is it fair to say that it in
3 relation to this, the ISF provide information on 095 number. But can we
4 see again in the second paragraph from the bottom of the page where it
5 describes the 018 number as suspicious, and then do they add that it was
6 used by Alternative User 1 who had been mentioned in the previous memo?
7 A. Yes.
8 Q. Right. And -- I see, thank you. Do you know if there -- if this
9 is the extent of the report of that meeting? Is this all there is or is
10 there another document, that you can help, may give a fuller picture of
11 what was said?
12 A. No, I won't be able to help with that, sir.
13 Q. Just one --
14 JUDGE BRAIDY: Mr. Young, just in the last session you put on the
15 screen and then take it back the family extract of this family in Arabic.
16 Have you the intention to put it again? Because I want to check the name
17 in Arabic.
18 MR. YOUNG: Yes, of course, I'm happy to put -- if -- can I do
19 that straight away so that -- there is not going to be an issue about the
20 differences in the name in Arabic. What -- the point I'll be coming on
21 with is the issues to do with the translation of the name.
22 So can we have that please on the screen again for Her Honour
23 Judge Braidy, the Arabic chart, which is item 110, please, in the Sabra
24 queue, Exhibit P1075. The English version is at 111 and the Arabic
25 version is at 110. So if we can have 110 on the screen for Her Honour.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 90 Cross-examination by Mr. Young (Continued)
1 JUDGE BRAIDY: Yes, I have seen the family extract in Arabic.
2 That's what I want to check, between the -- the difference in the name
3 between the two memo that you bring us to our attention before. One you
4 have Assad with one A, and the other one you have Asaad with two A, so I
5 was checking in Arabic and it seems it was with two As.
6 MR. YOUNG: Exactly. That was my next question, just to identify
7 the name as recorded in English.
8 JUDGE BRAIDY: Yes, just so I wanted to see the exact name in
9 Arabic, because in the pronunciation it differ. That's why.
10 MR. YOUNG: Thank you. So if we can just revert to the document
11 that we had just briefly and then I'll move on.
12 Q. Thank you. Mr. Donaldson, can you kindly focus on that paragraph
13 then and the point that Her Honour Judge Braidy has just made, is it
14 right in the English the spelling is with one S and two As? So it's
15 different from the spelling in the first memo.
16 A. That is correct.
17 Q. But again, is it not clear from the -- at this time, this is a
18 few weeks later, at this time the -- the ISF is still attributing the 018
19 number to Alternative User 1, not Assad Sabra; correct?
20 A. Yes.
21 Q. Thank you.
22 MR. YOUNG: May I ask for the admission, please, of that
23 document.
24 PRESIDING JUDGE RE: No objection? No.
25 The UNIIIC investigator's notes relating to a meeting or
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 91 Cross-examination by Mr. Young (Continued)
1 receiving information from the ISF on the 22nd of November, 2008,
2 ERN 60280089, and it's in respect of number 095, will be 5D414.
3 MR. YOUNG: Thank you. Most grateful. Can we have item 151 on
4 the screen, please. And take this off. Thank you.
5 Q. Yes, just to identify this, is this another UNIIIC memo in
6 relation to information from the ISF to the UNIIIC on the 23rd of
7 December, 2008. And we have the ERN range, I think that's already been
8 given, 60280086. It's just the one page. And is this -- Mr. Donaldson,
9 is this the third in a series of UNIIIC memos?
10 A. That would be correct.
11 Q. Again, may I ask was it written -- written -- to your knowledge,
12 was it written by your colleague who also prepared the previous two?
13 A. I would imagine so, yes.
14 Q. Now, here, is it right to say in the top five paragraphs do -- do
15 the ISF effectively set out their beliefs as to the alleged role played
16 by the two named individuals they suspected?
17 A. Yes.
18 Q. And again it's right to say that the 018 number is still at this
19 stage being attributed in December the 23rd, 2008, by the ISF to
20 Alternative User 1; correct?
21 A. Yes.
22 Q. But in terms of the spelling of the first name in the third
23 paragraph down from the top, does it appear to revert back to the first
24 memo with an A-s-s-a-d as opposed to the Asaad with the two As?
25 A. Yes. And as we discussed, the investigator who I believe will
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 92 Cross-examination by Mr. Young (Continued)
1 have drafted this is not Lebanese and I don't believe he speaks Arabic,
2 and I think that these details and subtleties may well be lost on him.
3 I'm simply indicating that to draw inferences from it. I just want that
4 context now.
5 PRESIDING JUDGE RE: Do you know who the investigator is who
6 drafted it?
7 THE WITNESS: There was a regular liaison point, and he largely
8 would draft all such minutes.
9 PRESIDING JUDGE RE: That means yes, you know who it was?
10 THE WITNESS: Yes.
11 PRESIDING JUDGE RE: Are you able to tell us? Is it a protected
12 witness?
13 THE WITNESS: It's not a protected witness. You've met him.
14 PRESIDING JUDGE RE: In the courtroom?
15 THE WITNESS: Via video-link, I believe. And as nobody on my
16 right has said anything, it's Mr. Holford.
17 PRESIDING JUDGE RE: Mr. Timothy Holford, who has testified?
18 Okay. Thank you.
19 MR. YOUNG: Thank you.
20 Q. If we can turn to the larger paragraph in the middle of the page,
21 which starts: "The ISF described ..." If you can just turn your
22 attention, sir, to that. In this larger paragraph, is it fair to say the
23 ISF described what they considered to be the profile of that individual
24 with information as to his -- his then, in 2008, employment, details of
25 where he then lived and other personal information, which I don't need to
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 93 Cross-examination by Mr. Young (Continued)
1 repeat. Is that a fair summary?
2 A. Yes.
3 Q. Were you privy to any further information on the profile of that
4 person other than what's recorded here, or is that as you can best
5 remember it?
6 A. No, I don't believe I was privy to any additional information.
7 Q. What I'm interested in is -- let me put it like this: Presumably
8 you worked closely with the -- the author of this document, did you not?
9 A. No. We lived on opposite sides of the continent. I don't mean
10 that in a facetious way. But I was based in the Netherlands, he was
11 based in Lebanon. We would communicate, yes, but he was focused on the
12 investigation side, I was focused on the communications. And indeed, at
13 this time I wasn't working on this project. I was working on another
14 one.
15 Q. Well, was he -- are you able to answer this or not: Was -- was
16 he then part of the UNIIIC, such as yourself at this time in November
17 2008?
18 A. Yes, and he was based in Lebanon.
19 Q. So he's somebody that you -- is he somebody you'd worked with
20 when you were in Lebanon? Because I think you'd told us -- I think you
21 said you spent several months there when you were seconded at the time
22 that you were in a private company?
23 A. Yes, I worked with him in Beirut.
24 Q. So whilst you were an analyst and he was more of an investigator,
25 presumably the two did meet at some stage and you shared information,
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 94 Cross-examination by Mr. Young (Continued)
1 surely?
2 A. Yes, we would have regular conference calls, but I don't have any
3 more information than what is provided here.
4 Q. Right. In that case I don't think you'll be able to answer the
5 next question which was whether or not there was any information as to
6 whether the ISF -- on the ISF's investigations into this individual,
7 Alternative User 1's activities in late 2004 and early 2005? Would you
8 be able to help on that or not?
9 A. I only have one memory and that may be appearing in later
10 documents. And if it isn't, I'm not sure I can share it.
11 Q. All right. Well, we'll -- we'll -- we'll come to them. There
12 are only two others. So I'm going to take -- move on soon. Again, may I
13 ask did -- did the UNIIIC keep their own records in relation to this
14 person, Alternative User 1, or was it a case of simply storing and
15 recording the information provided by the ISF?
16 A. The latter would be a fair representation at this time. And I
17 explained that the capacity of the unit was below that of the ISF to
18 attribute phones. But over the years, the unit developed a capacity of
19 its own by having many more sources of information.
20 Q. Presumably the ISF had access to the call data records to make
21 investigations on the phones? Full access, one assumes.
22 A. I don't feel fully comfortable answering that, sir. And it's not
23 something which I know to my personal knowledge.
24 Q. Well, then -- well, then, of course, I don't press you. But then
25 I trust there is no point in my asking you whether or not you were privy
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 95 Cross-examination by Mr. Young (Continued)
1 to information in relation to Alternative User 1's -- the investigations
2 into his personal circumstances, such as residence, the debt problems,
3 things like that?
4 A. No, I only have the same information as you, sir.
5 Q. Can you help me with this particular one, which is rather
6 relevant: Did the ISF confirm that the Alternative User 1 had no other
7 mobile phone other than the 018?
8 A. No, that is not something which I could adopt.
9 Q. Sorry, forgive me, I'm unclear. What -- what do you mean by
10 that, sir? Are you unaware what the position was?
11 A. Forgive me, there's a range of issues here. Are you asking did
12 the ISF ever attribute another number to Alternative User 1, or that they
13 categorically stated that at the time when he had 018 he had no other
14 phone?
15 Q. Well, let's deal with the first one first. Did they attribute --
16 did they provide another number for that -- for that person or not? For
17 that period. I'm not talking about the later period. We're going to
18 come on to 2007, 2008, where, in the next memo, we'll see that they've
19 attributed at a later date. I'm interested in 2004, 2005, and whether
20 you're aware whether at that time they had attributed any -- any number
21 other than 018, or was it simply 018?
22 A. Simply 018.
23 Q. Thank you. In relation to the next question, it may well be an
24 issue of resources or not, I know not. But did the UNIIIC independently
25 of the ISF investigate Alternative User 1?
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1 A. No.
2 Q. Are you saying no in terms of in 2008 or no in terms of at no
3 stage did the UNIIIC investigate that individual?
4 A. No in terms of 2008. And the reason for that is the project I
5 was working on was not in its infancy afforded external inquiries. They
6 would come later. Certainly this is an issue I'm relatively familiar
7 with, and a lot of thought and consideration was put to it. But at no
8 point, in my understanding, was Alternative User 1 considered a suspect
9 by the investigation.
10 Q. By which investigation?
11 A. The UNIIIC investigation.
12 Q. Is there a document from the UNIIIC where they've recorded their
13 reasoning and conclusions in eliminating Alternative User 1 as a suspect
14 or being the user of 018?
15 A. I would suggest you would best speak to the head of
16 investigations to look for such policy decisions.
17 Q. Have you ever seen such document? Can you say that much? Some
18 sort of document from the UNIIIC explaining their elimination of that
19 person as a suspect?
20 A. I've not seen such a document. But I've also not seen a document
21 treating him as a suspect, just in the balance of fairness.
22 Q. Right. Let's go to the -- another paragraph. Can we go to the
23 third --
24 JUDGE BRAIDY: Mr. Young.
25 MR. YOUNG: I'm sorry.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 97 Cross-examination by Mr. Young (Continued)
1 JUDGE BRAIDY: Mr. Donaldson, you just said that: In my
2 understanding it was Alternative User 1 was not considered as a suspect
3 by the investigation, and you said by UNIIIC investigation. You mean at
4 this time the UNIIIC investigation has another suspect, and this suspect
5 was Assad Sabra?
6 THE WITNESS: No, there was no alternative suspect. There was no
7 name. And there was little in November 2008, capacity-wise, available
8 beyond confirming information such as landline subscribers. In essence
9 in this time, the ISF were significantly ahead of the UNIIIC
10 investigation in terms of their capacity. And so while it may seem that
11 the UNIIIC was independently developing these leads, we were building
12 capacity. We were generating the databases. We were building the SQL
13 databases. We were getting the means to catch up.
14 JUDGE BRAIDY: Yes, it's understood. But when you say they
15 were -- you were talking about the ISF, they were ahead, "significantly
16 ahead of the UNIIIC investigation," yes, I agree, but that is a reason
17 more to investigate from the step that they have already investigated. I
18 don't understand why you didn't take into consideration their
19 investigation in case, or you didn't take in consideration the
20 information that they give you around a suspect, alternative or real
21 suspect. I don't know.
22 THE WITNESS: By the time UNIIIC had developed the capacity to
23 investigate in Lebanon fully and was making external inquiries, the ISF's
24 information had been revised.
25 MR. YOUNG: We're going to come on to revising the information.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 98 Cross-examination by Mr. Young (Continued)
1 Q. When was that then, sir? Can you help me? When do you -- when
2 do you say the ISF revised their information?
3 A. I could only put it to one of a number of months. Perhaps
4 January 2009. But I know that you have the information before you, sir,
5 so I'm sure you'll share it with me.
6 Q. Yes, well, before we get there, just looking back at the
7 paragraph here, can you turn to the third paragraph up from the bottom.
8 Is it fair to say that the -- the ISF were basically saying, in relation
9 to Alternative User 1, that -- were they referring to the fact of that
10 alternative user's previous number? So by that stage, is it fair to say,
11 this is in December 2008, they'd uncovered the later number; in other
12 words, his, what you would call, follow-on phone?
13 A. No, they had not discovered that at this time. And I am not even
14 sure if it was them who discovered it. I believe it's just written in
15 the phrase, referring to the above paragraph.
16 Q. All right. Well, staying with this paragraph. This is of
17 interest for this next reason, because in this paragraph, the third up
18 from the bottom of the page, is it fair to say the ISF were telling the
19 UNIIIC that there was a second possible user of -- of the 018 number?
20 And were they referring to who I'll describe as Alternative User 2?
21 Correct?
22 A. Yes. And I said this needs to be clarified. And what you have
23 is the insight into a very early stage of a complex investigation. I
24 think we can agree on that, sir.
25 Q. In the documentation I've seen, Mr. Donaldson, I've seen no
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 99 Cross-examination by Mr. Young (Continued)
1 clarification which eliminates Alternative User 2. Have you?
2 A. No, and I have seen no other information suggesting he is the
3 user in the past nine years.
4 Q. Did you -- did you meet with or -- what -- maybe it wasn't your
5 function or your role. But did you or any of your colleagues spend time
6 with members of the ISF who were coming or who were forming or who had
7 formed attribution opinions at that stage? Certainly in relation to 1,
8 if not 2.
9 MR. DESALLIERS: Your Honours, exploring this at length with
10 Mr. Donaldson, who says that he did not take part in such meetings,
11 serves no purpose. We're only threading on an area that, as I mentioned,
12 is very sensitive for the reasons I explained.
13 But Mr. Donaldson clearly said that he participated in one
14 meeting. So to ask him about what happened potentially in other meetings
15 serves absolutely no purpose. Your Honours, this line of questioning is
16 not relevant.
17 MR. YOUNG: That's not accepted. In our submission, it's
18 relevant to know what sort of information -- how informed he was about
19 the investigations. Even if he's not physically in a meeting, frankly,
20 he could have been incredibly well informed. There is such a thing as
21 e-mail and telephone. And I -- I don't accept that. I'm sorry.
22 PRESIDING JUDGE RE: All right. On the basis that Mr. Young's
23 put, we'll allow the question.
24 MR. YOUNG:
25 Q. Mr. Donaldson, do you see in relation to that third paragraph
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 100 Cross-examination by Mr. Young (Continued)
1 from the bottom that the ISF are apparently indicating that there was a
2 certain period of time when the user of 018 could have been Alternative
3 User 2? Do you see that?
4 A. I see that, but not the basis for that.
5 Q. Quite. That was my next question. Can you help us as to what
6 period of time the ISF were referring to in terms of possible use of 018
7 by the second alternative user?
8 A. No, on this theme I have the same information as you, sir. At
9 the time of these meetings, I was working on another suspect and
10 specifically upon cell dumps seeking to identify more suspects.
11 Q. I understand. So I think you've already made my next point,
12 which is it's unclear -- wholly unclear from this memo, is it not, what
13 was the basis as to why the ISF may have concluded he was -- Alternative
14 User 2 was also a possible user. Do we agree on that?
15 A. Yes.
16 Q. Can you help at -- in terms of you being informed, did you then
17 or later become informed as to what investigations, if any, the ISF
18 conducted into Alternative User 2?
19 A. No.
20 Q. Right. Without going into too much detail, sir, in public, in
21 relation to Alternative User 2, and I hope you still have the name
22 available to you in your -- on your notes that you made earlier, is it
23 right to say there is some evidence that we've dealt with in this -- in
24 the last two weeks that that individual was seeking to leave his own
25 country in 2005?
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 101 Cross-examination by Mr. Young (Continued)
1 A. My recollection may be faulty, but I believe there was discussion
2 of tickets, not who they were for. If we're referring to the SMS with
3 MEA.
4 MR. DESALLIERS: Could we have the reference, please.
5 MR. YOUNG: Yes, certainly. Transcript 20th September, page 95,
6 item -- it referred to item 18, P1272 in relation to the PMP 657. All
7 right. I'll -- I'll -- I'll move on.
8 But before I do, Your Honours, may I seek admission of that
9 document, please? This is the third UNIIIC memo.
10 PRESIDING JUDGE RE: No objection, Mr. Desalliers? All right.
11 The undated and unsigned investigator's note from the UNIIIC relating to
12 information obtained from the Lebanese ISF on the 23rd of December, 2008,
13 which is ERN 60280086, will be Exhibit 5D415.
14 MR. YOUNG: Much obliged.
15 On the screen, please, the fourth UNIIIC memo, please. Item 152
16 on the Sabra queue, in relation to a meeting between the UNIIIC and ISF
17 on the 8th of January, 2009. Thank you. This is the unredacted version
18 in English.
19 Q. For your assistance, sir, it's item 505, redacted version,
20 English and Arabic. And the ERN is 60280078. And it's one page again.
21 Do you have that in front of you, sir?
22 A. Yes.
23 Q. Again same question: Do you understand that this was also
24 authored by your colleague who you named earlier?
25 A. Most likely.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 102 Cross-examination by Mr. Young (Continued)
1 Q. Were any of these meetings tape recorded?
2 A. Not to my knowledge.
3 Q. In -- in this -- to summarize, in this memo does it record that
4 the UNIIIC received information from the ISF on the 8th of January, 2009,
5 and it does give one page of different details of that information?
6 A. Yes, this is a page of information.
7 Q. And is it right to say this is the -- it's at this time in
8 January 2009 that the ISF here begin to express some reservations over
9 their attribution of 018 number to the Alternate User 1; correct?
10 A. Yes, that is expressed in the information.
11 Q. Yes. In the second paragraph, for example, it explains, does it
12 not, how the ISF advised that 018 seems to be the Alternative User 1 and
13 names that male person again?
14 A. Yes.
15 Q. But here is it right to note the spelling of the first name is
16 different in paragraph 2, where variations of the first name appear;
17 correct?
18 A. You mean to the previous memos?
19 Q. Yes, I should have said to the previous memos.
20 A. Then yes.
21 Q. Now, is it fair to say the ISF here indicates to the UNIIIC, and
22 this is in paragraph 5, it seems, that they need to see the MTC SMS data
23 to have a clearer picture so as to verify their suspicions that
24 Alternative User 1 was, in fact, the 018 user. And do they also note
25 that there is an apparent change in the individual's lifestyle in
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 103 Cross-examination by Mr. Young (Continued)
1 paragraph 4?
2 A. Yes.
3 Q. And in the third paragraph, the paragraph above that, in the
4 third paragraph which starts off: "The ISF mentioned ..." Does it talk
5 about, in the last sentence, how it looks like he disappeared and then
6 just came back beginning 2007 when he started to use, and then he gives
7 another -- and then they give another phone number ending in 590;
8 correct?
9 A. That is what the information says.
10 Q. Yes. Is it fair to say from the documents we've seen so far, the
11 ISF do not appear to have attributed any other phone number to that
12 individual until this 590 number in 2007?
13 A. That appears to be what this information is saying.
14 Q. Does that have any potential relevance for you, Mr. Donaldson?
15 A. Well, I don't agree with the initial attribution to 018. And I
16 have not managed to complete the attribution for 590, so I'm not in a
17 position to comment.
18 Q. Yes. What about the fact that their view was he'd disappeared,
19 he'd gone off the radar. Do you know what information led the ISF to
20 suggest he'd disappeared?
21 A. No, I've the same information as you, sir, and it's the text in
22 front of me.
23 Q. For all you know, though, the ISF could have had, it seems, other
24 information you were not privy to by the sounds of what you're saying?
25 A. Anything is possible.
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 104 Cross-examination by Mr. Young (Continued)
1 Q. Where -- where a suspect disappears following a serious crime
2 incident, may that not be sometimes construed as quite revealing conduct?
3 A. I don't believe we've established that he did disappear.
4 Q. Well, do you know the basis upon which the ISF took the view he
5 had disappeared?
6 A. I have heard of no basis for that.
7 JUDGE BRAIDY: But at least they concur with you that the 018 was
8 closed on the 15th of February, 2005; yes?
9 THE WITNESS: Yes. And that is borne out as a certainty from the
10 call records.
11 MR. YOUNG: If we can scroll down, please, to bring the page up,
12 I'd be grateful. Yes. And we can stop there, please.
13 Q. Do you see there, sir, the large paragraph three up from the
14 bottom of the page? Can you have just a moment just to look at that.
15 You see, I suggest in this last paragraph on this page we can see that
16 the ISF are providing further information on their reasons for
17 attributing both the 018 number as well as the 207 -- 2007 number ending
18 in 590 to Alternative User 1? Can you see that?
19 A. Yes, I can see three sentences.
20 Q. Yes. And I'm going to suggest in the three sentences the ISF
21 gave the UNIIIC four discrete reasons which -- which indicated why the --
22 this individual was, in their view, the user of both these phones. So
23 I'm going to look at the four reasons in turn, one by one.
24 Is it fair to say they identified the first reason because of
25 018's contact with the 473 number which they say was alleged to be used
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 105 Cross-examination by Mr. Young (Continued)
1 by a female associated to Alternative User 1; correct?
2 A. That is what this text says.
3 Q. All right. So that's the first reason. And it's right to say
4 the 473 number was indeed, even on your long attribution period of 2001
5 to 2005, was a high-ranked 018 contact, was it not, ranking, I think, 6?
6 A. I would take your word for it.
7 Q. Indeed. Although the data didn't complete a full month because I
8 think the -- we know for the limitations in February 2005. But for the
9 call data you have for 2005 -- February 2005, that number, in fact, apart
10 from the non-SMS, as far as people-to-people is concerned, was the
11 highest-ranking contact of 018, wasn't it? Can you recall that?
12 A. I don't recall that.
13 Q. May I ask if you're aware if there's any record as to why 018
14 contact with a 473 number was significant other than the fact of the
15 relationship between the two individuals?
16 A. Again, sir, I don't have any more information than you. I'm just
17 looking at the text on the screen and saying, "Yes, that's what's written
18 there."
19 Q. All right. Let's go on to the second reason. I suggest they
20 cited a second reason to attribute 018 to Alternative User 1, and that
21 was because of its contact with a landline number which was mentioned in
22 the first memo. You remember the number?
23 A. Yes.
24 Q. The third reason, can I suggest, indicated in this paragraph for
25 the ISF to attribute to Alternative User 1 was because of contact -- was
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 106 Cross-examination by Mr. Young (Continued)
1 recorded as being because of contact with another landline of a female
2 that they could not specifically recall at that time; is that correct?
3 A. That's what's written there.
4 Q. Do you know if the UNIIIC followed up on this to ascertain the
5 identity of the female, her number, and any possible significance to the
6 individual?
7 A. I have no more information than you, sir.
8 Q. Presumably, as it's one of the four reasons why they're
9 attributing the number to that individual, it was followed -- followed up
10 by somebody, was it not?
11 A. I don't know. As I've said, sir, I have no information on this,
12 and I wasn't working on this number in January 2009.
13 Q. When was the first time you did work on this number?
14 A. I don't recall.
15 Q. Well, I -- I know the Purples may not have been a high priority,
16 but surely you can give us an idea on when you might have done some work
17 on 018.
18 A. No, there were other people in the team. And I have worked on
19 many, many numbers over the years. I couldn't even give you a year. But
20 I just want context for why I don't have any more information than you --
21 Q. All right.
22 A. -- about what's written on this paper and I have no personal
23 knowledge.
24 Q. All right.
25 JUDGE BRAIDY: So for you it's a first time you know about this
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 107 Cross-examination by Mr. Young (Continued)
1 information?
2 THE WITNESS: No, I would have read about this at the time. But
3 in terms of looking into the details myself or knowing the basis for some
4 of these things or what investigative actions were taken, I don't have
5 any more information as I wasn't working on this at that time. And I've
6 explained I was working on another suspect and trying on identify
7 Red Network users.
8 MR. YOUNG: Yes.
9 Q. Well, we fully understand you obviously were of considerable
10 seniority in the investigation, but can you give us any idea as to when
11 any of your colleagues, maybe more junior colleagues, started to do any
12 work on the 018 number, for example?
13 A. Well, certainly not more junior, but people would have begun
14 working at the very start when the information was received. But as I've
15 explained a couple of times now, when working out of the Beach Building
16 in Scheveningen, we had limited resources at this time. But what we did
17 is we learned, and we learned how people attributed phones in Lebanon,
18 and we built capacity.
19 So it was worked on. But at that stage, all that could be worked
20 on is confirming, for example, that the landline was indeed subscribed in
21 that name. We didn't have independent access to, for example, the Civil
22 Registry. So there is limited work that truthfully could have been done,
23 and it was only later that capacity began to build and external inquiries
24 were made.
25 Q. Can you give us the year when any external inquiries may have
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 108 Cross-examination by Mr. Young (Continued)
1 started?
2 A. I think they certainly began in earnest in 2010.
3 Q. Certainly that would correspond with interviews in relation to
4 this number. Let's look at the fourth reason given here. Can you
5 look -- can you just see it appears that they identified a fourth reason
6 to attribute 018 to the alternative user, where you see they mention
7 contact with a female relation's phone in a foreign country. Do you see
8 that? I -- I'm just using this language. There is no need to mention
9 the -- the country. But do you see that? It -- the fourth reason, I
10 suggest, seems to be because of contact between 018 and a -- and a female
11 relation's phone in a foreign country. Can you see that, sir?
12 A. Yes, I do.
13 Q. Can -- have you any idea why the ISF deemed the contact with that
14 foreign number to be significant?
15 A. No, and I am not aware of the number nor of the attribution. And
16 I'd also say that I think the four things you've just referred to could
17 potentially apply to Hala Salloum as well, if we were being fair.
18 Q. The -- sorry, going back for a moment to the third reason. You
19 recall I -- that -- that related to a landline of a female they couldn't
20 specifically recall. Did -- forgive me, did -- did anyone on your team
21 ever have the details of that female's landline -- or the name, sorry?
22 A. Yes, I've already answered that, and I'm not aware of such
23 information.
24 Q. Right. Do you -- Mr. Donaldson, if we didn't -- if we don't
25 fully understand the potential strength of the ISF reasoning when
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 109 Cross-examination by Mr. Young (Continued)
1 attributing the 018 number to this individual, is it fair to say it's
2 difficult to assess the merit or otherwise of their later revised opinion
3 that, in fact, the 018 user was not actually that person but it was Sabra
4 instead?
5 A. I would rather comment upon my own work than a separate
6 investigation that I wasn't involved in.
7 Q. I appreciate you'd rather comment on your own work. But if
8 you -- if the UNIIIC or the OTP cannot eliminate -- cannot eliminate --
9 cannot understand let alone eliminate a candidate, isn't that a certain
10 for you?
11 A. With my understanding of all the information at my command, this
12 information you're presenting me does not concern me. I think what
13 you're doing is taking a very early lead that was developed and
14 subsequently put to one side for reasons I am also not aware of. And
15 then putting it forward that somehow this is incredible evidence that
16 needs to be eliminated. So I don't have concerns about this.
17 You know in your 25 to 30 years of experience that
18 investigates -- investigations may begin with one name, that person is
19 looked at, investigated, perhaps eliminated, perhaps raised to suspect.
20 It's not the first name out is a solid name.
21 I mean, you talk about the quality. But here we have links to a
22 female they could not specifically recall at that moment. I mean, I
23 don't think we can present that as high-quality linkage in any fair
24 world.
25 Q. So is it -- is it fair -- are you saying, then, that you have no
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 110 Cross-examination by Mr. Young (Continued)
1 duty to consider these reasons to investigate them before you, yourself,
2 eliminate these as being credible leads?
3 A. My duty, sir, is to look at the available evidence in my
4 possession. Intelligence is not evidence.
5 Q. But can you simply -- can you ignore an investigation that's been
6 carried out by the Lebanese when you don't even know the extent and
7 nature of it?
8 A. I've not ignored it. But I am not aware of evidence which
9 credibly suggests that Alternative User 1 or Alternative User 2 were the
10 user of 018. And I don't believe that's what you're showing me now, sir.
11 I believe what you're showing me is an ongoing investigation which was
12 highly complex.
13 Q. You say you've not ignored it. But if I was to ask you who the
14 lady in question was that they thought may -- may have been responsible
15 for the 018 attribution, the 018 connection, you haven't been able to
16 indicate whether you have any knowledge of that connection at all.
17 A. Not to quibble, but I have been able. And I have said I have no
18 knowledge of that connection. I base my investigation upon the evidence
19 available to me, and I have tried to collect as much as possible.
20 Q. Well, look at the end -- can we look at the end of the document,
21 the bottom line, please. Do you agree that this document ends with
22 information that the ISF continue to state that they could not exclude
23 Alternative User 2 as a possible 018 user; correct?
24 A. That's what's written on this document.
25 Q. And again, is it fair to say there doesn't seem to be any written
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 111 Cross-examination by Mr. Young (Continued)
1 explanation as to why that person could not be excluded as a possible
2 user of 018?
3 A. There is not a written explanation beyond what's written on the
4 page, no.
5 Q. Thank you. And it's fair to say the document's also silent not
6 only on why the person should be excluded, but is it fair to say it's
7 also silent as to why the second individual may have been a user in the
8 first place, in the same way that the -- the previous memo doesn't give
9 any help?
10 A. Yes. And regretfully, I won't be able to provide any help.
11 Q. Can I ask you to think carefully about this next question. Over
12 the course of your involvement in this case, were there persons other
13 than these two individuals, Alternative User 1 and 2, or the accused
14 Assad Sabra, who was suspected by the UNIIIC of having access to or being
15 a user of the 018 number?
16 A. Not to my recollection. And truthfully, sir, I'd completely
17 forgotten any mention of Alternative User 2 until I saw this today. This
18 is not material I've looked at in around nine years.
19 JUDGE BRAIDY: But, Mr. Donaldson, you said that many have been
20 eliminated. That are not the only one. You are talking about general
21 investigation, yes?
22 THE WITNESS: Yes, I was just talking in generalities, that you
23 may have a suspect, but then you find out he has an alibi.
24 JUDGE AKOUM: Mr. Donaldson, when you write -- when you read this
25 memo thoroughly, you find that the drafter was not sure in one way or
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 112 Cross-examination by Mr. Young (Continued)
1 another who is the user of the 018. You can read, for example, "it still
2 needs clarification" for 018. We -- or what do they say? There is --
3 there was no contacts with the employer of -- who is suspected of using
4 018. They cannot exclude the possibility that beside this man there is
5 another user.
6 If they are still in this great doubt, what is the reason of
7 drafting such a memo?
8 THE WITNESS: I believe the purpose would be trying to keep the
9 UNIIIC informed as to lines of inquiry which were evolving and ongoing.
10 JUDGE AKOUM: Even if they were not able to find any result?
11 THE WITNESS: Yes. I believe that this is representative of
12 exchanges between investigators that were not meant to be seen or
13 presented as conclusive evidence. So I believe it's really being seen
14 out of context, the way we're seeing it today. Everybody makes notes,
15 exchanges notes with colleagues, and in a 12-year investigation things
16 change.
17 What we're seeing is a snapshot from nine years ago of ongoing
18 inquiries, and this was never meant for public consumption.
19 PRESIDING JUDGE RE: Mr. Young, what do you want to do with the
20 document? Do you want it received into evidence?
21 MR. YOUNG: Yes, please.
22 PRESIDING JUDGE RE: No objection, Mr. Desalliers? No. Okay.
23 5D416 will be -- a document I can't see on the screen. 60280087,
24 which is a UNIIIC investigator note regarding an information received
25 from the Lebanese ISF on the 8th of January, 2009, regarding mobiles 018
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 113 Procedural Matters
1 and 590. It's undated and unsigned. Although perhaps was prepared by
2 Mr. Timothy Holford.
3 Yes, please continue, Mr. Young. Anything else on this document?
4 MR. YOUNG: No, thank you.
5 PRESIDING JUDGE RE: All right.
6 MR. YOUNG: Moving on, now --
7 PRESIDING JUDGE RE: Mr. Young, I'm looking at the time. Where
8 are we going?
9 MR. YOUNG: I was going to the next documentation, which is in
10 2011, where there is information about the revised opinions and the
11 reasons for the revised opinions. That's next. Taking it through
12 sequentially in chronology. But we're making a lot of progress. This is
13 the last section.
14 PRESIDING JUDGE RE: How much longer do you need?
15 MR. YOUNG: I'm confident I can finish before lunch tomorrow.
16 PRESIDING JUDGE RE: No, no, no, no, no. We've heard the
17 "confident we could finish today" yesterday. I understand you need time
18 to do it properly, but we've based our sitting schedule for the period
19 we're in and in October upon counsels' estimates. And you started with
20 two to three days, we're up to day nine, we'll be into day ten tomorrow.
21 You appreciate if everyone did this ... we're trying to finish the
22 Prosecution case.
23 MR. YOUNG: I do apologize. This has taken significantly longer
24 than I ever thought would be possible.
25 [Trial Chamber confers]
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PUBLIC Official Transcript Witness: Andrew Donaldson –PRH230 (Resumed) (Open Session) Page 114 Procedural Matters
1 PRESIDING JUDGE RE: How many hours more do you need, Mr. Young?
2 Realistically.
3 MR. YOUNG: I believe two to three, realistically.
4 PRESIDING JUDGE RE: There is an analogy between days. That was
5 unkind and unnecessary.
6 Look, it's a number of considerations here, including
7 Mr. Donaldson, who is having to sit there and concentrate and have
8 questions thrown at him, whether it's by Prosecution or Defence, and the
9 Defence questions are obviously less friendly. So it does take a toll on
10 any witness. And, of course, on counsel too. I -- I've done it myself,
11 I know how long it takes to prepare and how tiring it is, how exhausting
12 it is to be on your feet, concentrating, listening, revising. It's very
13 difficult. I get that. But just let me -- just let us confer for a
14 moment.
15 [Trial Chamber confers]
16 PRESIDING JUDGE RE: Mr. Young, can you please overnight -- you
17 know what I'm going to suggest. Chop, yes, that's right. Just focus,
18 concentrate. You've -- the points you've made this afternoon, yes, we
19 get it. You've got to make those points. But it's taken a long time to
20 get there.
21 So let's resume tomorrow. Is there anything else we need to deal
22 with this afternoon? Nothing? All right.
23 We'll adjourn until Friday, the 29th of September.
24 --- Whereupon the hearing adjourned at 4.14 p.m. 25
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