18.     The Appeals Chamber recalls that in determining whether or not a Trial Chamber’s finding was reasonable, it “will not lightly disturb findings of fact by a Trial Chamber.”[1]  In the first place, the task of weighing and assessing evidence lies with the Trial Chamber.  Furthermore, it is for the Trial Chamber to determine whether a witness is credible or not.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.[2]  But the Trial Chamber’s discretion in weighing and assessing evidence is always limited by its duty to provide a “reasoned opinion in writing,”[3]  although it is not required to articulate every step of its reasoning for each particular finding it makes.[4]  The question arises as to the extent that a Trial Chamber is obliged to set out its reasons for accepting or rejecting a particular testimony.[5]  There is no guiding principle on this point and, to a large extent, testimony must be considered on a case by case basis. The Appeals Chamber of ICTY held that:[6]

[t]he right of an accused under Article 23 of the Statute to a reasoned opinion is an aspect of the fair trial requirement embodied in Articles 20 and 21 of the Statute.  The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty . . . applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case.”[7]  The European Court of Human Rights has held that a “tribunal’ is not obliged to give a detailed answer to every argument.[8]

19.     In addition, the Appeals Chamber of ICTY has stated that although the evidence produced may not have been referred to by a Trial Chamber, based on the particular circumstances of a given case, it may nevertheless be reasonable to assume that the Trial Chamber had taken it into account.[9]

20.     It does not necessarily follow that because a Trial Chamber did not refer to any particular evidence or testimony in its reasoning, it disregarded it.  This is particularly so in the evaluation of witness testimony, including inconsistencies and the overall credibility of a witness. A Trial Chamber is not required to set out in detail why it accepted or rejected a particular testimony.  Thus, in the Čelebići case, the Appeals Chamber of ICTY found that it is open to the Trial Chamber to accept what it described as the “fundamental features” of testimony.[10]  It also stated that:

[t]he Trial Chamber is not obliged in its Judgement to recount and justify its findings in relation to every submission made during trial.  It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible. Small inconsistencies cannot suffice to render the whole testimony unreliable.[11]

21.     It is for an appellant to show that the finding made by the Trial Chamber is erroneous and that the Trial Chamber indeed disregarded some item of evidence, as it did not refer to it. In Čelebići, the Appeals Chamber found that the Appellant had “failed to show that the Trial Chamber erred in disregarding the alleged inconsistencies in its overall evaluation of the evidence as being compelling and credible, and in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond reasonable doubt on these grounds.”[12]

113.   On whether Witness F could easily recognize Musema, the Appeals Chamber finds that Musema’s arguments are not sufficient to raise doubt as to the reliability of the contested identification testimony.  The Appeals Chamber notes that during a meeting convened by the bourgmestre of Gisovu commune, which was one of the three occasions where F had seen Musema prior to the events, F was able to observe Musema for a period of 30 minutes.[1]  Musema gives the impression that an identified suspect needs to be personally well known to the witness.[2]  This is not the case. Prior knowledge of an identified suspect is a factor that a Trial Chamber may take into account when assessing the reliability of a witness’ testimony,[3]  but that is not a sine qua non; identification may be based on other factors. In any event, the Appeals Chamber is of the opinion that it was within the discretion of the Trial Chamber to accept, in support of the evidence of identification before it, the fact that Witness F had met Musema on several occasions.

205.   In setting out its general findings in the Section entitled “Evidentiary Matters,” the Trial Chamber stated as follows:

In raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful.[1]

206. Musema accepts the above observation as a correct statement of the law as regards the burden and standard of proof. The Appeals Chamber is of the same opinion.

361.   The Appeals Chamber in Čelebići then stated:

Having considered the different approaches expressed on this issue both within this Tribunal and other jurisdictions, this Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other.

Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction.  This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.[1]

Applying this test, the Appeals Chamber in Celebići found that as between the Article 2 offences and Article 3 (common Article 3) offences of ICTY Statute at issue in the case,[2]  the multiple convictions entered by the Trial Chamber could not be affirmed, because while the Article 2 offences contained a materially distinct element not contained in Article 3 (common Article 3) offences, the reverse was not the case.  Following the approach set out in the second paragraph of the cited statement from Čelebići, supra, convictions under Article 2 were upheld, but those entered under Article 3 (common Article 3) were quashed by the Appeals Chamber.

362.   In the Jelisić Appeal Judgement, ICTY Appeals Chamber adopted the reasoning it had followed in the Čelebići case, and held that the multiple convictions entered under Article 3 and Article 5 of ICTY Statute are permissible because each Article contained a distinct element requiring proof of a fact not required by the other Article.[3] 

363.   In the view of the Appeals Chamber, the above test concerning multiple convictions reflects general, objective criteria enabling a Chamber to determine when it may enter or affirm multiple convictions based on the same acts.  The Appeals Chamber confirms that this is the test to be applied with respect to multiple convictions arising under ICTR Statute.  The Appeals Chamber further endorses the approach of the Čelebići Appeal Judgement, with regard to the elements of the offences to be taken into consideration in the application of this test.[4]  In applying this test, all the legal elements of the offences, including those contained in the provisions’ introductory paragraph, must be taken into account.

380. The factors that a Trial Chamber is obliged to take into account in sentencing a convicted person are provided for in Article 23 of the Statute and Rule 101 of the Rules.  Those factors are: the general practice regarding prison sentences in the courts of Rwanda;  the gravity of the offence; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; and the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served.  This list is not exhaustive;  it was held by the Appeals Chamber of ICTY that it is inappropriate for it “to attempt to list exhausitively the factors that  […] should be taken into account by a Trial Chamber in determining sentence”.[1]

63.     The issue here is whether the Trial Chamber’s consideration of the impact of trauma was in accordance with the law. The established practice of both the Trial Chambers and the Appeals Chamber supports a finding that it was. Trial Chambers normally take the impact of trauma into account in their assessment of evidence given by a witness. This approach was properly adopted by the Trial Chamber in this case. Contrary to Musema’s assertion, the Appeals Chamber finds that such an approach is, in fact, favourable to him. Indeed, the fact that the Trial Chamber should take into account the impact of trauma on a witness’s memory implies the Trial Chamber’s awareness of such factors (as in the case of the passage of time) and of their possible effect on the ability of the witness to recount events impartially and accurately. 

185.   In Kupreškić, the Appeals Chamber of ICTY stated the role of the Appeals Chamber in cases where the factual findings of a Trial Chamber are likely to be reviewed in light of new evidence.  ICTY Appeals Chamber held in the above-mentioned case that:

“Where additional evidence has been admitted, the Appeals Chamber is then required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.”[1] 

“[…] miscarriage of justice may […] be occasioned where the evidence before a Trial Chamber  appears to be reliable but, in the light  of additional evidence presented upon appeal, is exposed as unreliable.  It is possible that the Trial Chamber may reach a conclusion of guilt based on the evidence presented at trial that is reasonable at the time […] but, in reality, is incorrect.”[2]

“[…] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.”[3]

186.   It is the Appeals Chamber’s view that such principles are also applicable before ICTR when the admission of new evidence entails a review of the Trial Chamber’s factual findings.  The Appeals Chamber finds this to be the case in this instance.

34. The Appeals Chamber notes […] that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction.  […]

[…]

39. In cases before this Tribunal, a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances.  While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”.  In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence.  As stated by the Canadian Court of Appeal in R. v Harper:

Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.[1]

[…]

See also paras. 33-38, 40.

68. [….] The Appeals Chamber does, however, take this opportunity to clarify that, in its view, the more appropriate standard for the admission of additional evidence under Rule 115[1] on appeal is whether that evidence “could” have had an impact on the verdict, rather than whether it “would probably” have done so. 

69. The Appeals Chamber considers this change from the earlier Tadić formulation  [Prosecutor v Duško Tadić, Case No. IT-94-1-A, “Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence”, 15 October 1998, para. 71] as more a matter of timing than substance.  The “would probably” standard is still basically appropriate for the ultimate determination of whether a miscarriage of justice has occurred requiring a reversal.  The Appeals Chamber emphasises too that, regardless of the standard used, it is a difficult task to determine whether the interests of justice require the admission of new evidence.  The Appeals Chamber, therefore, expects a party seeking to admit evidence to specify clearly the impact the additional evidence could have upon the Trial Chamber’s decision.  If it fails to do so, it runs the risk of the evidence being rejected without detailed consideration.

463. There is no provision in the Statute or the Rules that specifically permits the Appeals Chamber to take into account post-conviction substantial co-operation with the Prosecution.[1]  What is clear, however, is that appellate proceedings are not intended to permit a de novo review of sentence, with Article 25 clearly limiting appeals to allegations of errors of law or fact invalidating the decision or occasioning a miscarriage of justice respectively.  The instant case clearly does not fall within either category, as it is not alleged that the Trial Chamber erred in any way.  However, the Appeals Chamber notes that Rule 101(B)(ii) requires the Trial Chamber to take into account “any mitigating circumstances including the substantial co-operation with the Prosecution by the convicted person before or after conviction.”[2]  In light of the Rule, the Appeals Chamber considers that, in appropriate cases, co-operation between conviction and appeal could be a factor that the Appeals Chamber too may consider in order to reduce sentence.  This will of course depend on the circumstances of each case and the degree of co-operation rendered.  In the present case, the interests of justice demand that this factor be taken into account.