Report No. 198
The Prosecution suggested that B should neither see the accused persons nor should they see him when giving testimony, otherwise, there would be 'retraumatisation'.
The Trial Chamber observed that face to face confrontation allowed observation of the facial and bodily expressions of the witness. (Coy v. Iowa (1988) 487 US 1012), though "it is not an indispensable ingredient of a fair trial. Where there is conflict between the protection of a vulnerable witness and the requirement of a face to face confrontation, the latter must yield to greater public interest in the protection of the witness". This is exemplified by Rule 75(B)(iii) which enables the Trial Chamber to order "appropriate measures to facilitate the testimony of vulnerable victims and witnesses."
On facts, it was held that there was no proof of 'vulnerability' of witness B on the possibility of traumatisation, except the ipsi dixit of the prosecutor. Retraumatisation is essentially a medical, psychological condition which required better proof than the evidence before the Trial Chamber. This submission was, therefore, rejected.
At the same time, the Trial Chamber also rejected the accused's plea that Rule 90(A) implied that a witness could only be heard in the Courtroom.
An extract of the observations and directions of the Trial Chamber may give some idea as to what should be the nature and content of directions in similar circumstances:
"Direct evidence is evidence presented directly before the Trial Chamber either from the court room or, in appropriate circumstances as determined and directed by the Trial Chamber, from the remote witness room. The mandate of the Trial Chamber is to ensure a fair trial and maintain a balance between the rights of the accused and the protection of the witness."
The Trial Chamber did not prescribe a remote room, but directed a screen to be placed in the court room to prevent witness B from seeing the accused and therefore, negate the possibility of the witness being traumatised, as he had claimed he would be.
The Court then gave a number of significant directions. It said: