131. The Appeals Chamber recalls that a trial chamber is best placed to assess the credibility of a witness and reliability of the evidence adduced,[1] and therefore has broad discretion in assessing the appropriate weight and credibility to be accorded to the testimony of a witness.[2] Indeed, the ICTR Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments”.[3] As with other discretionary decisions, the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the trial chamber has correctly exercised its discretion in reaching that decision”.[4] The party challenging a discretionary decision by the trial chamber must demonstrate that the trial chamber has committed a discernible error. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of discretion.[5] In such cases the Appeals Chamber will deem that the witness evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or that the evaluation of the evidence was “wholly erroneous”, and proceed to substitute its own finding for that of the Trial Chamber.[6]

132. The Appeals Chamber is mindful that when exercising its broad discretion, 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.[7] The Appeals Chamber recalls that the many potential factors relevant to the trial chamber’s assessment of a witness’s credibility include corroboration,[8] the witness’s close personal relationship to an accused,[9] and the witness’s criminal history.[10] 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.[11] Finally, a trial chamber can reasonably accept certain parts of a witness’s testimony and reject others.[12]

133. The Appeals Chamber recalls that a trial chamber is not required to set out in detail why it accepted or rejected a particular testimony,[13] and that an accused’s right to a reasoned opinion does not ordinarily demand a detailed analysis of the credibility of particular witnesses.[14] However, a trial chamber must provide reasons for accepting testimony despite alleged or material inconsistencies when it is the principal evidence relied upon to convict an accused.[15]

[…]

136. The Appeals Chamber recalls that it is not an error of law per se to accept and rely on evidence that is inconsistent with a prior statement or other evidence adduced at trial.[16] A trial chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his previous statements.[17] However, a trial chamber must take into account any explanations offered for such inconsistencies when determining the probative value of the evidence.[18]

137. Similarly, a trial chamber has the discretion to evaluate any inconsistencies that may arise within or among witnesses’ testimonies and to determine whether, in the light of the overall evidence, the witnesses were reliable and credible.[19] Considering that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of a trial chamber to evaluate discrepancies and to consider the credibility of the evidence as a whole, without explaining its decision in every detail.[20]

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]

CONSIDERING that the admission of evidence is in the interests of justice if it is relevant to a material issue, if it is credible and if it is such that it would probably show that the conviction or sentence was unsafe;

[RULE 115 OF THE RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 12 JULY 2002.]

150. The Appeals Chamber recalls the finding in the Zigiranyirazo Appeal Judgement that “evidence concerning specific travel details taken after several years can only be of limited assistance in establishing the time and exact itinerary” of a trip taken in April 1994.[1] However, it also recalls that, in the circumstances of that case, the observations of the Trial Chamber on the site visit were found to be a relevant factor in assessing the credibility of the alibi.[2] As such, although it is true that observations from a site visit taken several years after an event may only be of limited assistance, their relevance will depend on the circumstances of each case. Therefore, the Appeals Chamber does not find that the Trial Chamber erred in law by comparing its observations during the site visit with the evidence of the alibi witnesses. The Appeals Chamber will therefore turn to consider whether the Trial Chamber was reasonable in this comparison.

27. […] The Appeals Chamber notes that document 6DA19 contains sufficient indicia of credibility, such as a date, reference number, and the signature of Vlastimir Đorđević.[1] Accordingly, the Appeals Chamber finds document 6DA19 to be prima facie credible.[2] […]

33. […] Given that the document bears sufficient indicia of credibility, such as a date, reference number, and a handwritten confirmation of receipt, the Appeals Chamber finds it to be prima facie credible.[3] […]

40. The Appeals Chamber notes that although the original, untranslated version of document 6DA22 in Annex D of the Motion does not include the page containing the relevant stamps and signatures, the Appeals Chamber is apprised of the name of the court and the date on which the judgement was rendered. The Appeals Chamber further notes that the Prosecution does not contest its credibility. Accordingly, the Appeals Chamber finds document 6DA22 to be prima facie credible. […]

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. […]

28. The Appeals Chamber recalls that evidence is credible if it appears to be reasonably capable of belief or reliance.[1] […] As to the two remaining documents, 4DA2 and 4DA27, both bear sufficient indicia of credibility, such as stamps or signatures or both, and the Appeals Chamber finds them also to be prima facie credible in the sense of Rule 115(B) of the Rules.

73.     The Appeals Chamber notes that it is normal for a witness who testified in several trials about the same event or occurrence to focus on different aspects of that event, depending on the identity of the person at trial and the questions posed to the witness.[1] Therefore, not every discrepancy may undermine a witness’s credibility. […]

22. The Appeals Chamber further recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not in issue during the trial or appeal proceedings.[1] The requirement that the fact was not in issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

47. This being said, the Appeals Chamber does not find it necessary to order Niyitegeka to file the Additional Statements or information concerning the identity of their authors. Niyitegeka makes clear that, in his view, the information contained in the Additional Statements reveals that Witness GGV was not credible. The Appeals Chamber notes that Witness GGV’s credibility is a matter that was litigated at trial and on appeal. While the Additional Statements may constitute material of an evidentiary nature, in light of what Niyitegeka discloses of their content they do not constitute “new facts” within the meaning of Article 25 of the Statute. Accordingly, Niyitegeka’s attempt to have them admitted as new facts for the purposes of review is bound to fail.  

93.     […] The Appeals Chamber again recalls that a trial chamber has full discretion to assess witness credibility,[1] and notes that a witness’s criminal history may be a factor in assessing credibility.[2] […] 

The Appeals Chamber found that a statement made by Radovan Karadžić and given to one of the Applicant’s investigators lacked credibility for the purposes of Rule 115:

108. With respect to the statement’s credibility, the Appeals Chamber notes that according to the Appellant, “it was impossible to get in direct contact with Mr Karadžić”.[1] Apart from this reference, the Appellant provides no further information as to the circumstances under which this document was produced and how it was communicated to him. As a result, the Appeals Chamber finds that 33-K-0088 is still of dubious credibility. The Appeals Chamber notes that it is yet unknown whether Radovan Karadžić will provide evidence in relation to the credibility of his alleged statement. Therefore, the Appeals Chamber dismisses the request to have the statement admitted at this juncture. This is, however, without prejudice to any renewed request to admit it in the context of a potential motion under Rule 115 of the Rules relating to evidence by Radovan Karadžić.[2]

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 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]

64. [...] [T]he Appeals Chamber recalls that the purpose of these proceedings was not to determine the full extent and responsibility for possible witness interference in this case. That is for other proceedings, if necessary, in accordance with Rule 90 of the Rules. The purpose of the review proceedings was simply to test the evidence advanced in support of the new fact [...]