The Trial Chamber refused to accept the brief, reasoning that it had received no submissions by the Defence which would cause the Trial Chamber to review or revise the scheduling order.
Last week, the Appeals Chamber reversed the decision, ordered to accept the accused’s final trial brief, and instructed the Trial Chamber to set a date to hear the Defence closing argument.
The Appeals Chamber noted that, under the practice of the SCSL, the final trial briefs of the parties contain the entire closing argument and the oral argument is reserved for highlighting details from that brief.
Filing the final trial brief is a condition precedent to presenting the oral argument and is an intrinsic part of that argument.
The Chamber recalled that the right to be heard at trial and to present a defence are fundamental rights of an accused.
The right to be heard at the conclusion of the trial is the right of the accused, not his counsel. The exercise of that right is discretionary, but it is the discretion of the accused that must be exercised, not his counsel.
The Trial Chamber had an obligation to ascertain on the record that the accused fully understood and agreed with his lawyer’s actions and representations and that he was aware that the consequences of that agreement included the possibility that his right to be heard at the conclusion of the case could be considered waived.
The Appeals Chamber concluded that the Trial Chamber did not establish that there was a knowing, intelligent and voluntary waiver by the accused. Absent facts sufficient to determine a waiver, the Trial Chamber erred in assuming that the accused had waived his rights and in proceeding as if he had.
Taylor, Decision on Defence Notice of Appeal and Submissions Regarding the Decision on Late Filing of Defence Final Trial Brief, Case No. SCSL-03-1-T, App. Ch., 3 March 2011