199. It is noteworthy, however, that Kupreškić specifically mentioned the fact that the accused in that case had made a timely objection before the Trial Chamber to the admission of evidence of the material fact in question.[1] In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.”[2] Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.

200. The importance of the accused’s right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused’s ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[3]

28. Accordingly, the Prosecution’s request for a ruling on waiver is not supported by the need to appoint an investigation or to order access. Moreover, the Appeals Chamber does not consider the requested ruling on waiver necessary, at this juncture, in order to enable Mr. Nicholas Stewart QC to testify. Insofar as Mr. Nicholas Stewart QC’s testimony may conflict with his obligations under Rule 97 of the Rules, the Appellant will be present in court to personally state whether he waives his lawyer-client privilege where necessary. The Prosecution’s request for a ruling on waiver of lawyer-client privilege at this point in time is thus dismissed. As a result, the Appeals Chamber need not address the Prosecution’s arguments on the consequences of such a waiver for the admissibility of evidence outside the trial record.[1]

63.    The Appeals Chamber recalls that, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[1] The Appeals Chamber, Judge Agius dissenting, does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeals hearing. In these circumstances, the Appeals Chamber, Judge Agius dissenting, dismisses without further consideration this part of Ground 15 of Ndayambaje’s appeal as well as Ndayambaje’s new allegation of error raised at the appeals hearing.

312. The Appeals Chamber recalls that, as a general principle, a party should not be permitted to refrain from objecting to a matter which was apparent during the course of the trial, only to raise it in the event of an adverse finding.[1] Further, it is settled jurisprudence that, if a party raises no objection to a particular issue before the Trial Chamber when it could have reasonably done so, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[2]