262. The Appeals Chamber recalls that the ICTY Appeals Chamber has affirmed that the Prosecution has the obligation to determine whether evidence is exculpatory under Rule 68.[1] This Appeals Chamber follows that position and considers that in order to allege a breach of Rule 68, the Defence must first establish that the evidence was in the possession of the Prosecution, and then must present a prima facie case which would make probable the exculpatory nature of the materials sought.[2] If the Defence satisfies the Tribunal that the Prosecution has failed to comply with its Rule 68 obligations, then the Tribunal must examine whether the Defence has been prejudiced by that failure before considering whether a remedy is appropriate.[3]

263. The Appeals Chamber finds that in the present case, the Appellant has failed to demonstrate that the Trial Chamber erred in finding that the Prosecution was not in possession of any prior statements the detained witnesses may have given to the Rwandan authorities. The Appellant rather appears to argue that since the detained witnesses were called by the Prosecution, it was the Prosecution’s duty to obtain the statements. The Appeals Chamber does not accept such an extension of the scope of Rule 68.