47.     In the instant case, the Trial Chamber noted that “the burden of proof of the reliability … of the document lies on the party that seeks to rely on the document”, and that the requisite standard of proof was proof on the balance of probabilities.[1]  Without ruling on the issue as to whether such was the appropriate standard, the Appeals Chamber holds that the Trial Chamber did not err in stating that for a document to be admissible as evidence, the Party relying on it must establish that it has sufficient indicia of reliability.

48.     The Trial Chamber also found that, “the standard of proof required for admissibility should be lower than the standard of proof required in the final determination of the matter at hand through the weighing up of the probative value of all the evidence before the Chamber.”[2]   It is the view of the Appeals Chamber that, in that sentence, the Trial Chamber was making a distinction between admissibility and the final assessment of evidence.

49.     As to the second argument that the Trial Chamber erred in stating that the source of a document could be important in determining the reliability of a document, the Trial Chamber held that:

…the source of a document may, taken in context, impact upon the assessment of the reliability or credibility (or both) of the document. For example, evidence produced in support of a defence of alibi from a source other than the Accused may be of greater probative value than evidence provided or produced by the Accused. While noting this, the Chamber emphasizes that such an understanding of the relationship between the source of documentary evidence and its probative value must in no way be interpreted as a presumption of the guilt of the Accused. The Chamber has not, in any way, allowed its assessment of the probative value of documentary evidence to interfere with the right of the Accused to a fair trial.[3]

50.     The first and second arguments overlap.  Again, Musema has not given any instances where he attempted to adduce evidence before the Trial Chamber, which evidence the Trial Chamber rejected on the grounds that Musema himself was the source thereof. Every Trial Chamber is required, in assessing evidence, to determine its overall reliability and credibility.  In the instant case, the Trial Chamber stated that it had “assessed the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial.”[4] It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document.  Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.

31. […] As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies.  […]  The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable.[1]  Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence.  However, the Trial Chamber should consider such factors as it assesses and weighs the evidence. 

220.    The Prosecution is correct in maintaining that “the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration”.[1]  Rather, the absence of corroboration is simply one factor to be taken into consideration by the Trial Chamber in weighing the evidence and arriving at its determination of witness credibility.  Certainly, in cases hinging on a single witness’ identification of the accused made in difficult circumstances, corroborative evidence takes on more importance.[2]  However, of itself, the absence of corroboration is not a ground for the Appeals Chamber to intervene in a factual finding made by the Trial Chamber.

75. […] 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.  In framing the test in this manner, the Appeals Chamber has been guided by Rule 117(A) which provides that “[t]he Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it”.

70. Where the Rule 115 evidence is accepted for consideration, the Appeals Chamber has, in effect, decided that the evidence is sufficiently important that, if it had been before the Trial Chamber at trial, the conclusion of guilt could have been different.  At that stage in the proceedings, the new evidence may not have been subjected to any form of adversarial scrutiny, save for the Appeals Chamber’s initial assessment as to whether it was, on its face, credible.  It may be that there is no dispute between the parties as to this issue.  But, in the more likely case that the opposing party challenges the veracity of the additional evidence, the Appeals Chamber is faced with a choice – either it can test the evidence itself to determine veracity, or order the case to be remitted to a Trial Chamber (either the Trial Chamber at first instance, or a differently constituted Trial Chamber) to hear the new evidence.  In the present case, the Prosecution wished to challenge the veracity of several pieces of additional evidence submitted by the Defendants[1] and the Appeals Chamber decided that the most appropriate course was to hold an evidentiary hearing.[2]  In another instance, it admitted two pieces of conflicting evidence without such a hearing, without prejudice to the determination of the weight to be attached thereto.[3]

71. Obviously, an Appeals Chamber may choose to delay its entire decision on the admissibility and weight of new evidence until the time of the main appeal and decide, at one stage, whether the new material will be admitted and whether it will reverse the conviction.  Such an approach has advantages since the Appeals Chamber will be making its decision on impact at the same time it considers all the other evidence in the case and after it has completed its study of the trial record.  The disadvantage to this procedure is that the parties, in making their main submissions on appeal, are not informed as to whether they can rely on the additional evidence or not.  In some cases, the final appeal hearing will be prolonged considerably.  The present Rule 115 does not require the admissibility of new evidence to be decided at any particular time.  Thus, the Appeals Chamber should choose whether it is most expeditious to postpone hearing the evidence until the time of the main appeal hearing, or to do it earlier, according to the complexity of the new material and of the trial record in the context of what will be assessed.  It should be noted that Rule 117 instructs the Chamber to pronounce judgement on the basis of the record on appeal along with any additional evidence it has received.  This suggests that, even if the decision to admit the evidence is made at the same time as the main appeal, a two-step process is nonetheless envisioned in which new evidence, once admitted, will then be assessed as to its effect upon the appeal as a whole.

88. An indictment shall, pursuant to Article 18(4) of the Statute, contain “a concise statement of the facts and the crime or crimes with which the accused is charged”.  Similarly, Rule 47(C) of the Rules provides that an indictment, apart from the name and particulars of the suspect, shall set forth “a concise statement of the facts of the case”.  The Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and (4)(a) and (b) of the Statute.  These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.  In the jurisprudence of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.[1]  Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

25. The Appeals Chamber begins with the proposition that a party always has a right to be heard on its motion.  But the hearing need not always be oral.  In this regard, there is no provision in the Rules which provides for a right of a party to make oral submissions in connection with a written motion.  Similarly, the practice of the Tribunal allows for a decision on a written motion without any supplementary oral arguments, the motion itself being regarded as affording to the moving party a sufficient right to be heard. […]

36. [T]he notion of proof of guilt beyond reasonable doubt must be retained in the operation of Rule 98bis(B). This was recognised by Trial Chamber II’s decision in Kunarac.  The test applied in that case was correctly stated to be “whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict - that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis(B), ‘insufficient to sustain a conviction’”.[1] […]

37. The next question is how should the test of guilt beyond reasonable doubt be applied in this situation. The Appeals Chamber considers that the reference in Rule 98bis to a situation in which “the evidence is insufficient to sustain a conviction” means a case in which, in the opinion of the Trial Chamber, the prosecution evidence, if believed,[2] is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalić appeal judgement, where it said: “[t]he test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”.[3] The capacity[4] of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could.  At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.

See also paras. 33–35, 68.

Following its finding that the Trial Chamber’s acquittal for genocide did not meet the standard set forth in Rule 98bis(B), the Appeals Chamber used its discretion pursuant to Rule 117(C) of the Rules to order that there be no retrial on the one count of genocide:

73. […] [T]his discretion is recognised as well in the wording of Rule 117(C) of the Rules which provides that in “appropriate circumstances the Appeals Chamber may order that the accused be retried according to law”.[1] Similarly, national case law gives discretion to a court to rule that there should be no retrial.[2] The discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest.  These factors (and others) would be determined on a case by case basis. […]

The Trial Chamber convicted Jelisić of counts alleging violations of the laws or customs of war and crimes against humanity, to which he pleaded guilty. After the Prosecution presented its case on the remaining count of genocide, the Trial Chamber acquitted him pursuant to Rule 98bis(B) of the Rules. See paras. 1–5. Jelisić asserts that the sentence he received for the counts to which he pleaded guilty erroneously took into account the Prosecution’s evidence given at the trial for genocide. See para. 85. The Appeals Chamber held: 

87. The Appeals Chamber opines that in imposing sentence it was open to the Trial Chamber to take into account evidence presented during the genocide trial, insofar as that evidence was presented to demonstrate facts or conduct to which the cross-appellant had pleaded guilty.  The important point is that in considering evidence for the purpose of sentencing, the Trial Chamber should afford the cross-appellant an opportunity to test the evidence in cross-examination and/or by way of evidence adduced by the cross-appellant himself.