34. The fact that there had been a meeting held at Samvura’s house on the morning of 7 April 1994 involving the Appellant and distribution of arms is not in itself decisive for the Trial Chamber’s conclusion as to the Appellant’s responsibility for killings of the Tutsi civilians in Gisenyi. In fact, the Trial Chamber concluded that there was no evidence that the Appellant was present during the killings of 7 April 1994 and that, on that morning, the Appellant ordered the Interahamwe to kill the Tutsi and to prepare graves in Commune Rouge. Consequently, the principal issue is whether, should the Trial Chamber have had the benefit of hearing the testimony of Witness ABC1, it would have disbelieved Witness EB with respect to the events that took place on the morning of 7 April 1994. In the presence of contradictory accounts of the two witnesses, the Trial Chamber would have had to determine which of the accounts was reliable and, in light of evidence provided by Witness ABC1 in the Bagosora et al. case and the fact that [REDACTED], the Appeals Chamber is not satisfied that a reasonable trier of fact would have found this witness credible to the detriment of the account provided by Witness EB. Moreover, Witness ABC1 in the Bagosora et al. case only testified to the fact that the Appellant was not at [Samvura’s] house that morning and that there was no meeting there. The mere fact that [Witness ABC1] did not witness or hear him ordering the killings does not mean that this could not have occurred.The Appeals Chamber notes to this extent that Witness EB testified that the Appellant ordered the killing through a loudspeaker from his vehicle and not during the meeting at Samvura’s house.Consequently, and in light of the findings above concerning Witnesses AHI and AGX, the Appeals Chamber is not satisfied that the exclusion of the proffered additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would not have had an impact on the verdict.

18. [...] In Jelisi}, it was held that the Appeals Chamber “maintains an inherent power to admit such evidence even if it was available at trial, in cases in which its exclusion would lead to a miscarriage of justice.”[1] It must be emphasised that only in wholly exceptional situations will the Appeals Chamber resort to such a course of action.

Pages 3-4:

 7.          Rule 142 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) provides for the admission of additional evidence on appeal. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant must also show that the additional evidence is relevant to a material issue at trial and is credible. [2] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine, in accordance with Rule 142(C) of the Rules, whether it could have been a decisive factor in reaching the verdict.[3] Where the Appeals Chamber finds that the evidence was available at trial, it may still be admissible pursuant to Rule 142(C) of the Rules. However, in such a case, the applicant must demonstrate that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the verdict.[4]

8.          In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s verdict.[5] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[6]