According to the Defence, “it is only through such disclosure that the accused is informed adequately of the material details of the nature and cause of the charges against him and thus be in a position to adequately prepare his defence and to examine, or have examined, the witnesses against him”.
The Prosecution explained that it did not obtain any statement from the witness, and it has no interview or proofing notes of this witness as Ms. Campbell has declined requests to speak to the Prosecution.
The Prosecution also asserted that it is under no statutory or other obligation to obtain a statement from every witness, particularly in the present circumstances, where the witness is uncooperative and has not agreed to be interviewed.
In its response, the Prosecution referred to the recent decision in the ICTY Stanišić and Simatović case (see previous post “Prosecution has no obligation to take a written statement from a witness for the purpose of disclosure”).
Yesterday, the Trial Chamber dismissed the Defence motion with references to the Stanišić and Simatović decision.
In particular, the Chamber recalled that "the Prosecution is neither able nor obliged to disclose documents that are not in its possession or to which it does not have access, nor is it obliged under Rule 66 to obtain a statement from an uncooperative witness”.
The Chamber also quoted the Stanišić and Simatović in that “the fact that a witness does not have a prior statement does not render a trial unfair or automatically put a party at an unjust disadvantage. A witness may provide evidence which was unforeseen to both parties during his viva voce examination, independent of any previous statements, and [ ... ] it is for the Chamber to determine, on a case by case basis, whether this new information could affect the fairness of the trial proceedings”.
Taylor, Decision on Urgent Defence Motion for Stay of Evidence Pending Disclosure of the Statement of Naomi Campbell, Case No. SCSL-03-1-T, T. Ch., 4 August 2010.
