71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.”[3]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

28. The Appeals Chamber recalls that, as a general rule, a Trial Chamber is primarily responsible for assessing and weighing the evidence presented at trial, and that, in this regard, it is incumbent on the Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible.[1] In this exercise, the Trial Chamber has the inherent discretion to decide what approach is most appropriate for the assessment of evidence in the circumstances of the case.[2]

29. Similarly, the issue as to whether it is necessary to rely on one or several witness testimonies to establish proof of a material fact depends on different factors that have to be assessed in the circumstances of each case.[3] It is possible for one Trial Chamber to prefer that a witness statement be corroborated, but neither the jurisprudence of the International Tribunal nor of the ICTY makes this an obligation.[4] Where testimonies are divergent, it is the duty of the Trial Chamber, which heard the witnesses, to decide which evidence it deems to be more probative,[5] and to choose which of the two divergent versions of the same event it may admit.

47. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness.[1] In so doing, a Trial Chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[2] Some factors are particularly relevant for the assessment of accomplice witnesses, including: the extent to which discrepancies in the testimony were explained;[3] whether the accomplice witness has made a plea agreement with the Prosecution; whether he has already been tried and, if applicable, sentenced for his own crimes or is still awaiting the completion of his trial;[4] and whether the witness may have any other reason for holding a grudge against the accused.[5] Corroboration is also one of many potential factors relevant to the Trial Chamber’s assessment of a witness’s credibility.[6] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case.

201. The Appeals Chamber recalls that it is not a legal error per se to accept and rely on evidence that deviates from a prior statement or other evidence adduced at trial.[7] However, a Trial Chamber is bound to take into account any explanations offered in respect of inconsistencies when weighing the probative value of the evidence.[8] In this case, the Trial Chamber explicitly considered the Appellant’s contention at trial that Witness LAG “made some prior inconsistent statements.”[9] The Appellant has not articulated either how the Trial Chamber erred in evaluating the prior statements or how the particular inconsistencies raised here could potentially result in the Trial Judgement being reversed or revised.

47. […] Although there were many inconsistencies within the various statements made by Mr Nobilo concerning other issues which could have discredited him as a witness in relation to these issues, a mere disbelief of a witness’s denial of a particular fact does not by itself logically permit a tribunal of fact to accept beyond reasonable doubt the truth of fact which he denied. […]

1100.  […] the jurisprudence of the Tribunal which draws no distinction, for the purposes of evaluation of evidence, between witnesses called by the parties and witnesses called by a chamber.[1]

82. […] the Appeals Chamber observes that it is not unreasonable for a Trial Chamber to accept certain parts of a witness’s testimony and reject others.[1]

145. A tribunal of fact is always permitted to accept part and reject part of the same witness’s evidence. The Appeals Chamber is conscious that it is a substantial step to take to accept the statement given by a witness in preference to his or her sworn evidence, especially when the witness seeks to repudiate the relevant part of the statement. 

614. […] The Appeals Chamber, Judge Pocar and Judge Liu dissenting, considers that in-court viva voce evidence is generally more reliable than prior statements.[1] This is based on the indicia of reliability provided by cross-examination of in-court evidence. A trial chamber preferring a witness’s prior statement to his or her viva voce evidence should provide reasons for doing so. […]

59. The Appeals Chamber has repeatedly held that a Trial Chamber can reasonably accept certain parts of a witness’s testimony and reject others.[1]

25. There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages. The Appellants have not attacked the procedure prescribed by Rule 15(A) or Rule 15(B). Under these provisions, a witness could be heard by two judges; that the procedure is, in effect, available only over a short period of time is not relevant to the principle involved. Nor have the Appellants attacked the procedure prescribed by the old Rule 15(C) by virtue of which, in a part-heard case, a substitute judge could come in for the remainder of the trial; that this was possible only with the consent of the accused (where opening statements had been made or evidence had begun to be presented) was, again, not relevant to the principle involved. And then there is the case of deposition evidence admitted under Rule 71. In all these cases, the temporarily absent judge or the substitute judge, as the case may be, is faced with the task of evaluating evidence not given before him.

[…]

34.     The recomposed Trial Chamber may recall witnesses so as to enable the substitute judge to assess their demeanour on particular points. The recall decision would be made by the recomposed Trial Chamber after the proposed judge has joined it. Where video-recordings are available, an absent judge who reviews such recordings does so as a member of the bench, as in all the cases mentioned in paragraph 25 above. In like manner, in this case the substitute judge would be hearing recalled testimony as a member of the recomposed Trial Chamber. The recall power lies within the normal competence of the recomposed Trial Chamber. It was not for the two judges to authorize it to exercise that competence, although they could note that competence.