27. […] Relying on Wigmore’s Evidence in Trials at Common Law,[1] the Appellant concludes that because Milan Babić’s death, which resulted in the prevention or curtailment of the cross-examination of his evidence, was caused by “the voluntary act of the witness himself,” namely his suicide, the examination-in-chief must be struck out.[2]

29. […] In his appeal, armed with the Report’s finding that Milan Babić did in fact commit suicide, the Appellant attempts to rely on Wigmore for the general principle that evidence given by a witness in direct examination who commits suicide prior to, or during his cross-examination, should be excluded.

30. The Appeals Chamber concludes that the International Tribunal need not adopt this approach and finds that, despite Milan Babić’s death having been ruled a suicide, it remained within the Trial Chamber’s discretion to retain the evidence of Milan Babić on the basis that the interruption of his cross-examination, the majority of which had been completed, was unforeseeable and unavoidable.

The Trial Chamber had denied admission of a statement given by Halilović to the Prosecution at a time when he was questioned only as a witness, which was not taped or video-recorded according to Rule 43. On appeal, both parties agreed that the procedure under Rules 42 and 43 had not been followed since the Prosecution did not consider Halilović a suspect at that time, although it did inform him of his rights to counsel and to remain silent.

36. The Trial Chamber found that:

in order to protect the right of the Accused to a fair trial, in accordance with Article 21 of the Statute, it should be taken into account whether the safeguards of Rules 42, 43 and 63 of the Rules have been fully respected when deciding on the admission of any former statement of an accused irrespective of the status of the accused at the time of taking the statement.[1]

The Trial Chamber’s understanding of the protections afforded by the Statute and the Rules is consistent with the principles expressed in the case law of the International Tribunal and the ICTR[2] as well as the law of other jurisdictions.[3]

37. The Decision of 8 July 2005 dealt with the issue of whether the Statement had been taken in accordance with Rules 42, 43, 63, 89 and 95 of the Rules.[4] The Trial Chamber reasoned that the main question at issue was “what safeguards should have been applied by the Prosecution in order for a former statement of a now accused person to be admissible into evidence”.[5] The Trial Chamber concluded that:

[…] In the present case, Rule 43 [of the Rules] was not applied at the time of taking the Statement. Sefer Halilović has not chosen to waive his right to remain silent during trial. Thus, the Trial Chamber finds that the admission of the Statement would infringe upon the Accused’s right to a fair trial.[6]

38. Whether the statement would also be inadmissible due to a retroactive reading of Rule 43 of the Rules was not a decisive consideration in the Trial Chamber’s reasoning.[7] […]

39. […] In this respect, the Appeals Chamber emphasizes the large measure of discretion afforded under the Rules to Trial Chambers in establishing the authenticity of a document.[1] Considering that Trial Chambers’ decisions on issues of evaluation of evidence must generally be given a margin of deference,[2] it is only where an abuse of such discretion can be established that the Appeals Chamber should reverse such decisions.[3]

11.     The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2]

[…]

16.     The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […]

1280.            The Appeals Chamber is concerned by the practice of trial chambers in the exercise of their discretion, as in this case,[1] to postpone consideration of Defence objections to the admission of testimonial evidence on the ground of lack of notice to the phase of their final deliberations on the case. In the view of the Appeals Chamber, leaving the issue of whether facts could be relied upon as a potential basis for liability unresolved until the end of the trial, as the Trial Chamber did, creates uncertainty which can be a source of potential prejudice to the Defence.[2] While the Appeals Chamber considers that it would have been preferable for the Trial Chamber to rule on the Defence objections in a timely fashion to ensure clarity on the facts underpinning the charges on the basis of which it considered it could hold the accused responsible, it notes that Ntahobali, again, fails to substantiate his allegation of prejudice.