|Decision on Voir Dire and Statements of the Accused - 27.10.2006||
NTAHOBALI & NYIRAMASUHUKO
Paragraphs 12 and 13 of the Interlocutory Appeal contain the ratio of the Decision, finding that the Trial Chamber had not gone beyond the discretion allocated to it on evidentiary and procedural matters:
12. The Defence for Mr. Ntahobali argues that this procedure adopted by the Trial Chamber was impermissibly informal since prior statements of an accused should be subject to an inquiry conducted “in accordance with pre-established rules of law which are known to the parties” and not by merely requiring the parties to indicate their views on whether the Rules were complied with in taking the Previous Statements. The Defence for Mr. Ntahobali has not identified any error in the procedure adopted by the Trial Chamber. The voir dire procedure originates from the common law and does not have a strictly defined process in this Tribunal. There are no provisions in the Rules which direct Trial Chambers to adopt a formal procedure for determining whether they should conduct a voir dire. Instead, Rule 89(B) of the Rules provides that reference may be made to evidentiary rules “which will best favour a fair determination of the matter”. This discretion can extend to the conduct of a voir dire procedure when it is determined appropriate by the Trial Chamber. The procedure conducted by the Trial Chamber permitted the parties to make submissions as to whether the Prosecution and Co-Accused could use the Previous Statements to impeach Mr. Ntahobali. The Trial Chamber considered the submissions of the parties on whether it was necessary to grant the request for a voir dire procedure by the Defence of Mr. Ntahobali, and after finding that it was not necessary, the Trial Chamber determined the admissibility of the Previous Statements on the basis of the submissions made by the parties. At several stages during the hearing the Trial Chamber affirmed that this was the procedure to be followed, in particular when it stated:
We would like to hear the challenge, the basis of the challenge [to the admissibility of the Previous Statements]. And in the process, certainly, the Trial Chamber will examine the [admissibility] issue, including whether to determine the issue as presently presented, or whether there would be any need for voir – for trial within a trial, voir dire.
13. Therefore, the parties were informed of the procedure the Trial Chamber was adopting and made submissions pursuant to this procedure. Indeed, the procedure adopted by the Trial Chamber, while characterised as one adopted to determine whether a voir dire procedure was necessary, was very similar to a voir dire. The Trial Chamber heard the parties on the circumstances surrounding the taking of the Previous Statements, admitting a written affidavit from Mr. Ntahobali into evidence on that issue, and decided that no further evidence was required to determine whether the Previous Statements were in accordance with the Rules. The Appeals Chamber does not see any abuse of the Trial Chamber’s discretion in the way that it chose to proceed.
 [The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73 (Joint Case No. ICTR-98-42-T), Appel de l’Accusé Arsène Shalom Ntahobali à l’Encontre de la Décision Intitulée “Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 8 June 2006 (“Interlocutory Appeal”)], para. 5.
 Interlocutory Appeal, para. 8.
 Interlocutory Appeal, para. 6.
 As an example of the flexibility with which the voir dire procedure is utilised at trial, voir dire examinations have previously been deferred to the cross-examination stage in determining a Witness’s qualification as an Expert Witness: Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, Decision on the Prosecutor’s Motion for Admission of Testimony of Expert Witness Rule 92bis of the Rules, 24 March 2005, para. 27. See also [ The Prosecutor v. [efer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 5 (“Halilović Decision”)], para. 46 finding that a voir dire procedure is not necessarily required for identifying the voluntariness of an interview of an accused, although “there may be certain advantages in doing so.”
 Halilović Decision, para. 46.
T. 9 May 2006, pp. 3, 16, 42; T. 15 May 2006, p. 16.
T. 9 May 2003, p. 16.
 See the full submissions on T. 8 May 2006 pp. 76-78; T. 9 May 2006; T. 15 May 2006.
|ICTR Rule Rule 89(B)|