Thursday, October 13, 2011

13 Sept 2011: Sayedee defence documents

This date had been sent by the tribunal for the defence to respond to the prosecution application for charge framing made on 4 September. However tribunal started with a private discussion between the tribunal members for a few minutes and then the tribunal chairman asked the prosecutor to submit a particular application it have given relating to access to defence documents. After that it heard an application for the defence for a further adjournment. See comments at end of blog

Application by prosecution for copies of defence documents
It appears that the prosecution had submitted an application to the tribunal sometime earlier seeking copies of the documents and witnesses as required by section 9(5) of the 1973 Act. This states: ‘A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial.'

Prosecutor Haider Ali submitted that at the time the trial started the prosecutors should get a copy of the list of defence witnesses.

[It was not entirely clear whether Ali was arguing that the trial had now started and that the list should be given now. It was also not clear why this application was taken up today though it may have been because the tribunal wanted to give warning to the defence that they would have to give the list at time of charge-framing which could be soon]

The chairman responded to Ali by saying that according to Section 10(1) of the Act the trial commences at the time of framing of charge. [This provision starts by saying ‘The following procedure shall be followed at a trial before a Tribunal, namely:- (a) the charge shall be read out; (b) the Tribunal shall ask each accused person whether he pleads guilty or not-guilty; …..’ This happens immediately after charge framing]

The chairman went onto say that he would pass necessary direction on the application at the time of commencement of trial.

Defence lawyer Tanvir Ahmed Al-Amin said that though this court was not passing any order on the application, he said he needed to clarify certain points about the prosecution application.

He handed over the response that the defence had prepared opposing the application. He argued that there was uncertainty from the prosecution’s side on the date when the trial commences and the date when the defence would be required to submit their documents and list of witnesses.

The chairman argued that there was no confusion since section 9(5) of the Act provides that the defence was required to submit their documents and list of witnesses on the date of commencement of trial which is the date on which the charge will be framed.

'We are telling you that the trial starts on framing of charges and ends on judgement' the tribunal chaiman said

Amin referred to rule 37 and 38(2) of the Rules. Rule 37 states that: ‘When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons
for so doing.

Rules 38(2) reads: ‘An accused pleading not guilty will get at least three weeks time for preparing his defence.’

The lawyer argued that the accused could be discharged if the court does not find any prima facie case in the hearing dealing with the framing of charge and that therefore the defence would only start preparing their case after the accused pleas ‘not guilty’ which is on the day of framing of charge.

He argued that it would not possible or practicable for the defence to submit the defence documents or list of witness statements on the day of framing of charge. These documents could only be submitted once the defence has completed its investigation and on the first day of trial which he said was the day for the prosecutor to make opening statements and begin recording evidence.

The chairman then said that if there is any confusion between the Act and the Rules then the Act would prevail. He argued that the defence should be preparing its defence at this stage and that no further time for investigation would be given.

The defence lawyer argued that charge framing was a pre-trial stage and said that he wanted to show some commentary from the international tribunals to support this argument.

The chairman said that there was no need to see this as the tribunal was a domestic tribunal and would run by its own legislation.

Amin said that this was a 'special tribunal. He went onto drew attention again to the minimum tree weeks time that was mentioned for preparation of defence and argued that the defence would only be able to provide information about its witnesses after it had completed its defence preperation.

He said that the defence could only investigate after the charges were framed, so it was not possible for the defence to submit its witness list and documents on the date of framing of charge.

The chairman said that the three week time period given in the rules related to the time that the defense counsel had for preparation of its cross-examination of the witnesses and it was not for the investigation of the defence case. He said that the defence should have started investigation from the date of receipt of formal charge and documents.

Amin responded by saying that if this was the case then the tribunal should immediately adjourn the hearing to allow the defence sufficient time to prepare its defence. He argued that in other international tribunals the defence was given at least 6 months to one year to do this, and that in this tribunal there are as many as 31 counts against the accused amounting to 31 seperate cases and the defence would need at least one year time to prepare for all these counts and then it could submit list of Defence witnesses and documents on the day of framing of charge.

The tribunal chairman said that in its order, the tribunal would include reference to this application from the defence that it had sought an adjournment for one year.

Amin said that you may include this argument but you should place it in the context of this argument

Tajul Islam then got up and said that it was not practicable for the defence to submit defence documents and list of witnesses instantly on the day of framing of charge.

The chairman said that the tribunal would not give any order on this application now and will respond to the application sometimes in the future.

Application to adjourn charge-framing application
The first issue raised by Tajul Islam concerned the failure of the prosecution to have provided the defence copies of video evidence that it had given to the tribunal.
Islam argued that the clips of ATN Bangla and ETV were ‘documents’ within the meaning of the rules and should have been given to the defence by the prosecution at the time of serving other documents as required by the Tribunal’s order of 14 July 2011.

[There was an odd exchange that took place about the defence writen application. In the written application there must have been a quote which ended with a '....'. The tribunal took serious umbrage at this, and said 'What kind of document is this?' It appeared that he though Islam should have put the full quote in and not finished with '...' at the end. The tribunal said that the meaning was not clear, with Islam staing that the meaning of 'the sentence was very clear.' This went on for about five minutes]

The chairman argued that the video recordings were not documents under the tribunal’s rules and as such does not fall under section Rule 18(4) of the Rules. This states: ‘The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.'

Islam argued that if the tribunal commenced the charge-frame hearing without the defence being able to see these video documents on which the prosecution relies upon, it would be ‘dangerous for the defence’.

The chairman told Islam not to use this kind of language and told him that it was inappropriate to use such words.

Islam said that he use the word dangerous since the defence would be seriously prejudiced if it had to proceed without having copies of the videos.

Islam argued that any evidence relied on by the prosecution should be considered as a document in the context of providing a copy of it to the defence.

Islam said that he wanted to read to the court a High Court decision reported in the Dhaka Law Reports in 1985 which concluded that a video was a document.

Justice Jahir said that that decision concerned the defintion of 'document' in the Evidence Act, legislation which was excluded from the current proceedings by the 1973 International Crimes (Tribunal) Act.

Islam argued that this decision was applicable in the present case even though Evidence Act was excluded as it established a general principal that a video recording was a ‘document’ and that in any case the the 1973 Act did not exclude the General Clauses Act and that this contains a similar definition of document.

There was then an argument between the tribunal and the lawyer about whether the lawyer could read out the judgment. The chairman said that the tribunal judges had read it before, that it was nearly 50 pages long and that that to do so would amount to delaying the proceedings of the tribunal. 'You are wasting the court's time,' the chairman said.

Islam denied that it was a waste of time. 'This is a petition of the defence. This is my right. We are not referring to 400 pages. He said that he only needed to read two pages out and he needed to read it out to assist the court. Islam said that this was a ‘reasonable submission’ to make.

The tribunal chairman said, 'You are saying that a document includes a DVD and CD. We have read the judgement. You do not need to read it.'

Islam said he needed to read it to ensure 'a fair trial'

Eventually the tribunal chairman allowed Islam to read out the relevant part of the order which stated that a video recording equated to a document and that therefore the prosecution videos should have been submitted under Rule 18(4).

The chairman then asked Islam to look at Rule 18(6). The rule states: ‘The defence shall also require to submit three sets of list of witnesses along with the documents which the defence intends to rely upon before the Tribunal in compact disk (CD) or digital versatile disk (DVD) while furnishing the same under section 9(5) of the Act.” [I think the argument here was that CD and DVD were separately used as terms, and so the term ‘document’ in the rules did not necessarily include them]

Islam said that rule 18(6) was not relevant as the CD and DVD mentioned in the rule related to soft copy of the hard documents which the prosecution had submitted. But that if the evidence itself is a video recording then it was document and should be served on the accused before the Charge hearing.

The chairman then asked the lawyer to move onto the next point.

Islam said that despite the court’s earlier order the Jail authority had not allowed the defence counsel to meet the accused on 8th September 2011.

Justice Jahir asked whether the defence had made the application in writing to the jail authority and whether the jail authority had refused in writing. Islam said that the application was made in writing and it was refused orally.

The prosecution was then asked to reply on the adjournment application.

Haider Ali, for the prosecution argued that there was no need for the defence lawyers to consult with the accused which would only be needed after framing of charge at the time of preparation of defence.

He argued that the High Court case on ‘document’ did not apply to the tribunal

He however argued a video may be a document but need not be submitted at this stage and could be served upon the defence after charges were framed in the three weeks time fixed for preparation of the defence.

Islam for the defence then got up and referred to Rule 44 which states: ‘The Tribunal shall be at liberty to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodicals, and magazines, films and tape recoding and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it, and admission or non-admission of evidence by the Tribunal is final and cannot be challenged..’

He argued that this provision supports the contention that the video is a ‘document’ and the prosecution was required to submit it on the basis of the 14 July order.

Justice Jahir then asked the prosecutor Haider Ali to answer a question. He said that if the prosecution argument is that framing of charge process is part of trial then why would the prosecution not serve all the documents on the defence at this stage?

Ali then referred to a number of sections of the Act and rules of procedure and then submitted that framing of the charge is part and parcel of the trial but not trial itself.

The chairman then asked what was the meaning of ‘commencement of trial’. Ali argued that according to section 10(1) the trial commences on the day on which the charges would be read out to the accused which wsa when he would be asked to plea guilty or not guilty.

Justice Jahir then asked the prosecution what would be the harm of serving the video before the charge-framing took place.

The Chairman then pointed out that if the trial starts when the charge is read out by the court, then this appears to be in contradiction with section 9(1) and (2) which suggests that the charge framing is part of trial.

Ali responded by saying that according to section 10(1), 16 and 17(1) of the Act and relevant provisions of the rules, the charge-frame hearings do not mark the commencement of trial; the trial would commence on the day when the charge be read out to the Accused.

Islam said that he considered that the date of commencement of trial to be the day when the prosecution witnesses are called for evidence. He however submitted that since the Tribunal had made it clear at the beginning of the day that this matter would be decided on a later date, there is no point to make any further submission on that point at that stage.

After a lunch adjournment, Ali for the prosecution summraised his case concluding that the prosecution would provide copies of the videos after charge framing, but would be willing to give them as directed by the court.

The order was then given by Mr. Justice Fazle Kabir
This is an application for adjournment filed by the Defence on the ground that the Prosecution did not submit video recording of new clipping of ETV and ATN Bangla upon which the prosecution is relying upon and also that the defence did not get chance to consult with the Accused Delwar Hossain Syaedee in Jail Custody. Mr. Tajul Islam learned counsel appearing for the defence submits that as per Rule 18(4) of the Rules of procedure the Prosecution should have supplied copies of all documents which the Prosecution intend to rely. But the Prosecution did not submit news clippings of ATN Bangla and ETV to the Dfence. The learned advocate further submits that the learned counsel for the defence went to the Dhaka Central Jail when the Central Jail authority refused to allow them to meet with the Accused on 8th September 2011. As a result he could not get proper instruction from his client for charge hearing. On the aforesaid grounds the learned Defence Counsel asked for an adjournment for hearing of the charge matter.

Mr. Sayed Haider Ali the learned prosecutor appearing on behalf of the Prosecution opposed the adjournment petition filed by the Defence. Mr. Sayed Haider Ali, the learned prosecutor submits that the alleged video recording of the news clipping of ETV and ATN Bangla have been submitted to the Tribunal and will be supplied to the Defence when the trial will start. He also submitted that when charge hearing it is not at all necessary to take advise from the client and as such the ground for adjournment are frivolous. But the Porsecution informed that they are ready to supply the video clippings if the tribunal directs so.

We have perused the adjournment application and heard the submissions of both the parties. Considering the submissions made by both the parties we are inclined to allow a short adjournment to the defence lawyer for his defence. The learned prosecutor is directed to supply copies of the news clipping of the ATN Bangla and ETV by 15th September 2011. The Defence lawyer will collect their copies from the office of Registrar on that day. In the matter of meeting with the Accused we direct the Dhaka Central Jail authority to allow Mr. Tajul Islam and Mr. Tanvir Ahmed Al-Amin to meet Delwar Hossain Sayedee on 18th September 2011 insider the jail. Hearing of this case is adjourned today until 20th September 2011 for hearing on charge matter for defence.

Let a copy of order be sent to the Dhaka Central Jail Authority for necessary steps.
Tajul Islam asked for a copy of the order but the chairman told him that the defence first needed to make a written application explaining why they needed it.

1. The argument about whether or not the defence should provide a copy of its witness statements and other documents was interesting. First of all whatever the Act or rules say, it would have been ridiculous for the defence to have give to the prosecution a copy of the list of witnesses and documents that they are to rely on immediately after charge framing. It is only after charge-framing that the defence actually knows exactly what charges their client has to face, and after than they then need time to prepare their defence. For the defence to have to give the list of documents/witnesses immediately after hearing what charges they would have to face, would be completely ridiculous.

The fact that the tribunal was having to have this argument in the court today is partly because of problems in the 1973 Act and rules, and also partly because of problems of attitude understanding the need for the defence to have a right to prepare its defence. The Act and rules do give a distinct impression that at the time of charge-framing, and having heard the plea from the accused, that the trial has commenced, and so technically this does seem to be the point at which the defence has to provide these documents, according to the rules. However the defence is right that, in order to ensure a fair trial, its documents should be given at a time after its has completed its defence investgations.

The argument by the defence that they should give these documents at the time of the opening statement, which they said was when the trial started, does not seem to be supported in the rules. Moreover, this would actually be a very late stage to give these documents, since the prosecutors would themselves need time to look into them.

The Act and rules therfore ideally need to be amended so that the documents are given after the defence has been given time to undertake its investigations, but before the opening statement.

However it unfortunate that the tribunal and the prosecutors appear to have a minimal understanding about the right of the defence to properly prepare themselves. Could the tribunal really have suggested that the three week minimum period was to prepare themselves for cross examination rather than to prepare their defence? Did the tribunal expect that the defence's period of preparing its defence should start before it knew what the charges would be against him? This seems to be the case.

The tribunal should have recognised that the provisions in the 1973 Act and rules about requiring the defence to give its documents to the defence at the time of charge-framing would go against a 'fair trial' - a requirement in the 1973 Act itself.

2. The second issue that came up was about whether video evidence should or should no be treated in the same way as witness statements and be given to the defence to prepare for charge framing. There was a clear High Court decision, which apparently the tribunal said it was aware of, that stated that video evidence should be treated as a document in terms of disclosure to the defence. The tribunal said that this decision related to the interpretation of the Evidence Act which did not apply to the 1973 Act. The tribunal was correct that the Evidence Act does not apply, but clearly the decision was setting out a principle, and the tribunal had no contending principle explaining why the practice in normal Bangladesh practice should not be adopted. In any case there was clearly an overwhelming principle that all evidence should be provided to the defence - and it is difficult to see how video evidence should be treated differently from witness statements.

The tribunal finally backed down under pressure from the defence and when the prosecution said that it was fine with providing the DVDs. Why this argument was necessary, I have no idea. The tribunal should have realised right from the beginning that the DVDs should have been given at an earlier stage and given that order.

3. The Tribunal's strong position in this hearing on the need for the defence to see their client - despite the prosecution position - was good to see.

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