31. The Appeals Chamber will consider these challenges in turn. At the outset, it recalls that it is within the discretion of a trial chamber to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[1] The Appeals Chamber will defer to a trial chamber’s judgement on issues of credibility, including its resolution of disparities among different witnesses’ accounts, and will only find an error of fact if it determines that no reasonable trier of fact could have made the impugned finding.[2] Furthermore, 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]

48. The Appeals Chamber recalls that a trial chamber may rely on part of a witness’s testimony and reject other parts.[4] Furthermore, the Appeals Chamber notes that the Trial Chamber only relied on Witness SLA’s testimony where corroborated.[5] The Trial Chamber was therefore entitled to disregard Witness SLA’s claim of torture and still rely on his evidence with respect to the 25 April and 11 May Killings.

154. Regarding Setako’s contention that the Trial Chamber erred in its reasoning, the Appeals Chamber recalls that the task of weighing and assessing evidence lies primarily with the trier of fact.[6] Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a trial chamber.[7] It will only interfere where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.[8]

222. Setako’s submission that the Trial Chamber erred in dismissing his evidence for lack of corroboration due to contradictions in the testimonies of Witnesses SLA and SAT is unclear. If Setako claims that the Trial Chamber was compelled to accept his testimony because Witnesses SLA’s and SAT’s testimonies deviated from each other, the Appeals Chamber disagrees. The Appeals Chamber recalls that a trial chamber has the discretion to decide on the weight, if any, to accord to a piece of evidence, regardless of whether or not that evidence is corroborated.[9] This discretion is not affected by purported inconsistencies in other evidence.

31. […] the Appellant relies on the Appeal Judgement in Musema, which, in his view, found that when a Trial Chamber did not refer to a particular piece of evidence, it could be presumed that the Trial Chamber did not take this piece of evidence into account.[1]

32. Contrary to the Appellant’s view, Musema does not stand for such a proposition. In that case, the Appeals Chamber did not suggest that a Trial Chamber could be presumed to have ignored a piece of evidence just because it did not mention it in the Judgement. Rather, the Appeals Chamber held, in the paragraph cited by the Appellant, that it could be presumed (absent particular circumstances suggesting otherwise) that the Trial Chamber chose not to “rely on” an unmentioned piece of evidence—that is, that it considered the evidence but decided that it was either not reliable or otherwise not worth citing in the Judgement.[2] The Appeals Chamber in Musema furthermore expressly acknowledged that

… a Trial Chamber is not required to articulate in its judgement every step of its reasoning in reaching a particular finding. Although no particular evidence may have been referred to by a Chamber, it may nevertheless be reasonable to assume in the light of the particular circumstances of the case, that the Trial Chamber had taken it into account. Hence, where a Trial Chamber did not refer to any particular evidence in its reasoning, it is for the appellant to demonstrate that both the finding made by the Trial Chamber and its failure to refer to the evidence had been disregarded.[3]

Moreover, the reading of Musema proffered by the Appellant is inconsistent with the subsequent case law of the Appeals Chamber, which clearly establishes that a Trial Chamber is not obligated to identify and discuss in the Judgement each and every piece of evidence that it has considered.[4]

31. […] As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies.  […]  The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable.[1]  Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence.  However, the Trial Chamber should consider such factors as it assesses and weighs the evidence. 

52.     The Appeals Chamber further recalls that decisions of individual trial chambers have no binding force on other trial chambers.[1] A trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it.[2] Consequently, two reasonable triers of facts may reach different but equally reasonable conclusions when determining the probative value of the evidence presented at trial.[3] Likewise, the Appeals Chamber considers that an assessment as to whether the defence has been prejudiced by the Prosecution’s disclosure violations and whether a remedy is appropriate depends on the particular circumstances of the case.[4] An error cannot be established by simply demonstrating that other trial chambers have exercised their discretion in a different way.[5]

See also paras 257, 262, 439, 543.