R v Vinayagamoorthy
[2008] VSC 599
•7 November 2008
| IN THE SUPREME COURT OF VICTORIA | Unrestricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1628 of 2007
| THE QUEEN | |
| v | |
| ARURAN VINAYAGAMOORTHY SIVARAJAH YATHAVAN ARUMUGAM RAJEEVAN | Accused |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | October 2008 | |
DATE OF RULING: | 7 November 2008 | |
CASE MAY BE CITED AS: | R v Vinayagamoorthy & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 599 | |
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Criminal law – Terrorism offences pursuant to the Criminal Code Act 1995 (Cth) and the Charter of the United Nations Act 1945 (Cth) – Admissibility of expert evidence relating to the Liberation Tigers of Tamil Eelam (“LTTE”)
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.E. Dean S.C. with Mr K. Armstrong | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr B.E. Walters S.C. with Ms P. Murphy on behalf of Vinayagamoorthy Mr M. O’Connell S.C. on behalf of Yathavan Ms. F. Todd on behalf of Rajeevan | Robert Stary & Associates |
HIS HONOUR:
The three accused have pleaded not guilty to a series of offences arising under Part 5.3 of the Criminal Code Act 1995 (Cth) (“the Act”).
That part of the Act deals with “terrorism” and to alternative offences arising under the Charter of theUnited Nations Act 1945 (Cth).
The first accused, Aruran Vinayagamoorthy, has been indicted on eight counts:
(i) Membership of a terrorist organisation, namely the Liberation Tigers of Tamil Eelam (“the LTTE”) contrary to s 102.3(1) of the Criminal Code – Count 1.
(ii) Making funds available to a terrorist organisation, namely the LTTE contrary to s 102.6(1) of the Criminal Code – Count 2.
(iii) Providing support or resources to a terrorist organisation, namely the LTTE contrary to s 102.7(1) of the Criminal Code – Counts 4, 5 and 7.
(iv) Making available an asset to a prescribed entity, namely the LTTE contrary to s 21 of the Charter of the United Nations Act 1945 (Cth) – Counts 3, 6 and 8.
The second accused, Sivarajah Yathavan, has been indicted on four counts:
(i) Membership of a terrorist organisation, namely the LTTE contrary to s 102.3(1) of the Criminal Code – Count 1.
(ii) Making funds available to a terrorist organisation, namely the LTTE contrary to s 102.6(1) of the Criminal Code – Count 9.
(iii) Providing support or resources to a terrorist organisation, namely the LTTE contrary to s 102.7(1) of the Criminal Code – Count 11.
(iv) Making available an asset to a prescribed entity, namely the LTTE contrary to s 21 of the Charter of the United Nations Act 1945 (Cth) – Count 10.
The third accused, Arumugam Rajeevan, has been indicted on four counts:
(i) Membership of a terrorist organisation, namely the LTTE contrary to s 102.3(1) of the Criminal Code – Count 1.
(ii) Making funds available to a terrorist organisation, namely the LTTE contrary to s 102.6(1) of the Criminal Code – Count 12.
(iii) Providing support or resources to a terrorist organisation, namely the LTTE contrary to s 102.7(1) of the Criminal Code – Count 14.
(iv) Making available an asset to a prescribed entity, namely the LTTE contrary to s 21 of the Charter of the United Nations Act 1945 (Cth) – Count 13.
The legislation is not without its complexities, but at the heart of it for this ruling is proof of what is a “terrorist organisation”.
The following parts of the Code are of importance:
Section 100.1 of the Code provides in part:
“(1) In this part:
funds means:
(a)property and assets of every kind whether tangible or intangible, moveable or immovable however acquired; and
(b)legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such property or assets including but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.
organisation means a body corporate or an unincorporated body, whether or not the body:
(a)is based in Australia; or
(b)consists of persons who are not Australian citizens; or
(c)is part of a larger organisation.
terrorist act means an action or threat of action where:
(a)the action falls within sub-section (2) and does not fall within sub-section (3); and
(b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c)the action ins done or the threat is made with the intention of:
(i) coercing or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country or part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
(2)Action falls within this sub-section if it:
(a)causes serious harm that is physical harm to a person; or
(b)causes serious damage to property; or
(c)causes a person’s death; or
(d)endangers a person’s life other than the life of the person taking the action; or
(e)creates a serious risk to the health or safety of the public or section of the public; or
(f)seriously interferes with, seriously disrupts or destroys an electronic system including but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for or by an essential public utility; or
(vi) a system used for or by a transport system.
(3)Action falls within this sub-section if it:
(a)is advocacy protest dissent or industrial action; and
(b)is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
(4)In this division:
(a)a reference to any person or property is a reference to any person or property wherever situated within or outside Australia; and
(b)a reference to the public includes a reference to the public of a country other than Australia.”
Section 102.1 of the Code contains further definitions as follows:
“(1) In this Division:
member of an organisation includes:
(a)a person who is an informal member of the organisation; and
(b)a person who has taken steps to become a member of the organisation;
and
(c)in the case of an organisation that is a body corporate – a director or officer of the body corporate.
terrorist organisation means:
(a)an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs); or
(b)an organisation that is specified by the regulations for the purposes of this paragraph (see sub-sections (2), (3) and (4)).”
It is common ground that there has been international strife in Sri Lanka for many years and that the basic divide is between the Tamil population to the north and the Singhalese population to the south.
It is alleged that the “governing body” of the Tamil population is the LTTE (the Liberation Tigers of Tamil Eelam) and it is alleged that the LTTE is a terrorist organisation.
I have been asked to rule on the admissibility of the evidence of Dr Chalk and Dr Smith. Their evidence is challenged in a number of ways. If both the doctors or either of them were to give evidence, they would do so as experts on the LTTE. Their evidence is challenged as not being a properly identified area of knowledge or study which would give rise to expert evidence. The basis of their expertise is challenged which in turn becomes an attack on their expertise, even if the area of expertise does not.
It would follow that they were not sufficiently qualified to give evidence which would assist the jury and therefore the evidence lacks sufficient relevance to be admitted.
It is also submitted that even if the evidence is admissible, I ought regard its probative value as so slight that I ought exclude it in the exercise of my discretion to exclude evidence in circumstances that its prejudicial value exceeds its probative value. It was not directly submitted, but I assume it would also include a submission that it would be unfair for this material to be used against the accused.
The purpose of the evidence of the experts is to establish that the LTTE exists as an organisation, that it has a particular structure and to articulate that structure. In particular, it is led to establish that one of the “wings” of the LTTE is the Black Tigers (“BT”) and the BT are suicide bombers. It is not suggested that the experts would give direct evidence that the LTTE is a terrorist organisation and that various apparent terrorist activities which have occurred in Sri Lanka and elsewhere can be attributed to the LTTE. It had been submitted as part of the Summary of Prosecution Opening that that might be the case. The admissibility of that part of the material from these witnesses was abandoned before the argument commenced.
It must be said at the outset that the “form” of the evidence to be given is difficult. What has been provided by each “expert” is a report (in Dr Chalk’s case, two reports). The language used is not that which would be employed in direct speech and some of it is extreme.
It follows and it is understood by the parties that if the experts are allowed to give evidence, the evidence will be led in measured and moderate language.
It is, I suppose, clear enough that members of a jury would have some knowledge of what has been happening over the last 20 years in Sri Lanka. How accurate such knowledge would be is problematical. Evidence could be given about the history of Sri Lanka. Persons who have been present in Sri Lanka could give evidence of what they saw and, to a limited extent, what they heard. A member or former member of LTTE could give evidence of what activities they engaged in, including terrorist activities. The question which falls for consideration is whether an expert can give evidence about those matters.
The case against the accused is that they, together with one Thillainadarajah Jeyakumar, who is now deceased (d.o.d. 29/03/07), were the senior leaders of the LTTE in Australia and that the LTTE is a terrorist organisation.
It is argued that Jeyakumar had been the head of the LTTE in Australia. The accused are said to have held the following positions:
(1) Vinayagamoorthy was the administrative and finance coordinator for the LTTE in Australia.
(2) Yathavan was the coordinator for Victoria.
(3) Rajeevan was the assistant coordinator for Australia.
It is also suggested that Yathavan and Rajeevan assisted Jeyakumar and Vinayagamoorthy in their duties.
It is the Crown case that a large number of documents have been recovered, including from the homes of the accused, which indicate a connection with the LTTE. That may be a direct connection or an indirect one through an organisation called the Tamil Co-ordinating Committee (“TCC”).
The Crown also relies upon:
Material obtained by way of intercepted telephone conversations and some material on video tape showing the accused present at certain alleged LTTE activities; and
Evidence of collection of funds in Australia and the purchase of certain material including electronic material. The Crown argues that those activities are on behalf of the LTTE.
The allegations put by the Crown are denied and some of the interviews and other material are the subject of objection. It is not conceded that LTTE is a terrorist organisation or, for that matter, that there is an Australian arm of the LTTE.
The most often quoted passage describing the role and place of the expert witness is that of Heydon JA (as he then was) in the New South Wales Court of Appeal decision of Makita (Australia) Pty Ltd v Sprowles[1]:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”
[1](2001) 52 NSWLR 705 at 743.
The first matter which arises in this case is whether or not study of the LTTE or Tamil Tigers is a field of specialised knowledge. I am of the view that it is. It could be part of a derived form of another discipline, namely, history and political science, to name two. The existence, development, structure and workings of the LTTE is a field of specialised knowledge.
The two witnesses tendered by the Crown have made studies of the LTTE. Much of the material which they have studied is learning, and for experts in this social science in particular that will often not always be so. There are four different questions. The first I have already dealt with. I do accept that the study of the LTTE is a field of specialist knowledge. The second question is whether or not the area of study is outside the area of ordinary knowledge so that a jury might be informed about by an expert. I have already indicated that jurors might have knowledge of some of the events in Sri Lanka in the last 20 years, but it could not be assumed that they would have any detailed knowledge sufficient to decide a case such as this. Direct evidence of some of these matters could be called, as I have already said, but that would not exclude calling an expert. In war crimes trials, witnesses could be called to give eye witness evidence of atrocities committed by individuals or in the presence of individuals. That would not preclude for example, the calling of expert historical evidence that there was ongoing policy of the German regime towards genocide. Such evidence might be necessary to prove that the act involving an individual was part of a more general policy so that it might qualify as a “war crime” and a crime against humanity.
I would accept that what Kellam J said in R v Dong Song Choi & Ors[2] (also known as In the Matter of Pong Su (Ruling No. 19)) is correct when his Honour accepted “expert evidence” could be received to show a feature of the North Korean society as it related to a person who held the position of a title of “political officer”.
[2][2005] VSC 66.
The next matter is whether or not either Dr Chalk or Dr Smith are qualified to give expert evidence about the LTTE, even in general terms. The evidence which the Crown would seek to lead is evidence as to the structure of the LTTE. Although in one sense that is evidence of a matter of fact, it is evidence which would equate with evidence of opinion, as it is usually described when dealing with experts.[3]
[3]See Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 162.
It does not seem to me that there are assumed facts other than an assumption that the LTTE exists or existed so as to become the subject of detailed study. That assumption, however, is to be regarded separately from the conclusion about the same matter. The witnesses can readily be tested on the proposition that the only reason they have concluded that the LTTE exists as an organisation is because that was assumed from the outset. Many areas of study will start with propositions. It does not follow that the conclusion will be in favour of it.
It is important to note that Kellam J, in a later ruling in R v Dong Song Choi & Ors[4] ruled that two other “experts” could not be led. His Honour was not satisfied that the basis (“factual foundation”) of the evidence was such that it could be admitted.[5] He would also have excluded the evidence in the exercise of his discretion.[6]
[4]Also known as In the matter of Pong Su (Ruling No.24) .
[5]Ibid, p. 21.
[6]Ibid, pp. 22-23.
At least since Clark v Ryan[7], caution has to be exercised to prevent an expert being used to argue a particular case and present it “more vividly and cogently before the jury”[8].
[7](1960) 103 CLR 486.
[8]Per Dixon CJ at 491. See also HG v R (1999) 197 CLR 414, 428 [41], [42] and [43].
Here, the two witnesses have undertaken a particular study of the LTTE. They can each be cross-examined about the nature of the study they have undertaken.
Much of the cross-examination of the witnesses at the committal was directed to these very issues. It seems to me that it was shown that there were gaps in the expertise of each of the witnesses, in particular Dr Chalk.
I am left, however, in what I regard as an entirely unsatisfactory position. Although both of the witnesses were extensively examined at the committal, the evidence it was intended they would give was much broader than now defined.
The suggested evidence, that is, the report of the expert which would have shown attribution to various occurrences in Sri Lanka is not persisted with. That seems sensible since the underlying basis for that evidence would be marginal.
For the purposes of this ruling I have taken the experience of Drs Smith and Chalk from their affidavits filed 7 June 2007 and 13 September 2007 (Chalk) and 29 June 2007 (Smith).
Dr Smith’s affidavit reads as follows:
“1. My qualifications are … I have a Doctor of Philosophy in the Social Sciences from the University of Bath.
2. Until January 2005 I was the Deputy Director at the International Policy Institute, King’s College, London (KCL), where I worked predominantly on security issues in South Asia and had done so for the past two decades. I still have a close association with King’s College.
3. I have been appointed as a Visiting Fellow at the Department of Politics at Bristol University (where I have also been appointed to serve on the Research Ethics Committee for the Faculty of Social Sciences and Law); the Centre for Research in Innovation Management at the University of Brighton; and the Royal Institute for International Affairs (Chatham House).
4. I now work mainly as an independent researcher. My work includes undertaking academic research, consultancy and policy research projects. I have undertaken extensive research on security and development issues in South Asia, which has required gaining considerable knowledge of Sri Lankan politics and security issues.
5. For these reasons I am frequently asked to advise policy makers on Sri Lanka. I have advised the United Kingdom’s Foreign and Commonwealth Office, including the British High Commission in Sri Lanka, the United Kingdom’s Ministry of Defence, and the United Kingdom’s Department for International Development. I have also been a technical advisor to the Government of Sri Lanka on the reconstruction of the armed forces. In May 2004 I assisted the London Metropolitan Police Service with a study on Sri Lankan diaspora organised crime in the United Kingdom.
6. My most recent fact-finding visit to Sri Lanka was in September 2006 but was unavoidably cut short. I have followed recent events extremely closely, particularly in relation to conflict and security. My next fact-finding visit will be in 2007.
7. I am the author of a number of relevant publications including a research monograph for the Small Arms Survey in Geneva on the humanitarian impacts of illegal arms trafficking. In May 2006 I lectured at the Emirates Centre for Strategic Studies Research in Abu Dhabi on the same subject and the Centre is about to publish my lectures in English and Arabic. A recent piece of research on Sri Lanka and the Maldives has just been published by James Sentinel. James Intelligence Review published my most recent research in October 2006. In June and July 2006 I gave talks at Chatham House and in the United Kingdom’s House of Commons on the current situation in Sri Lanka. I have recently prepared a journal article on Sri Lanka for International Affairs and I have submitted a paper on the same topic to a project for the Norwegian Ministry of Foreign Affairs. I am also completing a paper on the failure of the Liberation Tigers of Tamil Eelam (“LTTE”) to make the transition to the political mainstream for the Clingdael Institute in The Hague as part of a major project for the Dutch Ministry of Foreign Affairs.
8. In addition, I have received a large number of consultancies and grants for work on South Asia. I am frequently asked to give my views on the BBC. I was, for example, called upon to give my views of the assassination of Lakshman Kadirgamar by the BBC World Service on the night of the event and the presidential election on the day of the results. I have recently given interviews on the BBC World Service with regard to the current security situation in Sri Lanka.
9. I am a frequent visitor to Sri Lanka and I have spent approximately 25% of my time in-country over the past few years.”
Dr Chalk’s affidavit reads as follows:
“I have a Doctorate in Political Science from the University of British Columbia, Canada and a Joint Masters of Arts (First Class Honours) Degree in Political Science and International Relations from the University of Aberdeen, Scotland.
I have been employed full-time at the RAND Corporation since 1999. Prior to joining RAND, I was employed as an Assistant Professor of Politics at the University of Queensland, Brisbane (January 1996 – May 1999) and as a Visiting Postdoctoral Fellow at the Australian National University, Canberra (June 1996 – February 1997).
My present duties at the Rand Corporation include research, analysis, report writing/publication, client briefing and liaison and project management. I am also periodically required to provide expert oral and written submissions for the United States Congress and am frequently called on to give media interviews.
I have more than ten years experience in research and analysis in the fields of terrorism, insurgency and transnational security issues. My research and writing experience regarding the LTTE includes the publication of more than books, articles and reports dedicated to the LTTE. My knowledge of the LTTE also reflects knowledge garnered through my current status as a member of several national and international committees and working groups relating to counter-terrorism issues. I have previously consulted with security agencies in the United Kingdom, Australia, and Canada.
In addition to my employment at the Rand Corporation, I also undertake the following roles:
(a) Associate Editor, Studies in Conflict and Terrorism;
(b) Specialist Correspondence, Janes Intelligence Review;
(c) Adjunct Professor and Terrorism Subject Matter Expert – Naval Postgraduate School, Monterrey, United States of America; and
(d)Adjunct Professor of Terrorism and International Security – Asia Pacific Centre for Security Studies, Honolulu, United States of America.
I have previously been a member of the following:
(a)the Steering Group for the United State Institute of Peace’s International Research Group on Political Violence, Washington, D.C., United States of America; and
(b)the Council for Security cooperation in the Asia-Pacific Study Group on Transnational Crime.
In addition to my experience as set out in my affidavit of 7 June 2007, I have written more than ten books, book chapters, articles and reports that directly address the LTTE as a terrorist-insurgency. Major titles include:
(a) “Tigers Evolve”, Jane’s Intelligence Review (March 2007);
(b) “Training the Tigers”, Jane’s Intelligence Review (January 2007);
(c) “The Liberation Tigers of Tamil Eelam”, in Brian Jackson et al., Breaching the Fortress Wall (Santa Monica, CA: RAND, 2007);
(d) “The Liberation Tigers of Tamil Eelam Insurgency in Sri Lanka”, in Rajat Ganguly and Ian Macduff eds., Ethnic Conflict and Secessionism in South and Southeast Asia (London: Sage Publications, 2003);
(e)“The Tamil Tigers”, in Peter Chalk and Bruce Hoffman, The Dynamics of Suicide Terrorism (Santa Monica, CA: RAND 2005);
(f) “Diaspora Support for Insurgencies: The LTTE and the Tamil Diaspora”, in Dan Byman et al., Trends in Outside Support for Insurgent Movements (Santa Monica, CA: RAND, 2001);
(g) “The LTTE’s Military-Related Procurement”, in Dan Byman et al., Trends in Outside Support for Insurgent Movements (Santa Monica, CA: RAND, 2005);
(h) “The Tamil Tiger (LTTE) Insurgency in Sri Lanka”, in Abdel-Fatau Musah and Niobe Thompson eds., Over a Barrel, Light Weapons and Human Rights in the Commonwealth (London: Institute of Commonwealth Studies, 1999); and
(i) “The Liberation Tigers of Tamil Eelam’s (LTTE) International Organization and Operations – A Preliminary Analysis”, Canadian Security Intelligence Service (CSIS) Commentary No. 77 (March 17, 2000).
In addition to the matters outlined I paragraph 3, above, I am regularly called upon as a Sri Lanka expert by media organisations around the world, including major nationally-syndicated outlets in the United States, the United Kingdom, Australia, Canada and India. I have also been invited to numerous international conferences to talk on the LTTE and I have given key-note addresses to forums organized by groups such as the World Alliance for Peace in Sri Lanka (WAPS).
I have spent extended periods of time in Sri Lanka both pre and post the Ceasefire Agreement of 2002 and I have witnessed, first hand, conflict conditions in Jaffna, the symbolic heartland of the LTTE. I have additionally travelled extensively to states known to play a prominent role in the LTTE’s international procurement and lobbying network, including Thailand, Singapore, Canada, Australia, the United Kingdom, France, Norway and South Africa. I have well-established contacts in all of these countries which has helped me gain a thorough understanding of the scope and parameters of the Tigers’ global operations.
While most of my information on the LTTE has been procured from official Sri Lankan sources (government, military, police and intelligence), I have made every attempt to assess this data in an impartial manner and, when possible, to have it corroborated by independent third parties, including foreign service personnel from Australia, the United States and the United Kingdom; non-governmental organisations (for example, Human Rights Watch/HRW, the United Nations Development Program/UNDP and the International Committee of the Red Cross/ICRC); and academics with a thorough background in LTTE activities. I have also been approached on several occasions by LTTE sympathisers and supporters, and I have factored their perspectives into my own arguments and thinking. Combined, I believe this has facilitated a thorough understanding of the Tamil-Sri Lanka conflict that is both informed and objective.”
Just what those various claims to expertise, knowledge and experience mean were the subject of cross-examination and it is not accepted by the defence that the qualifications can be expressed as clearly as that. For example, what Dr Chalk means by the expression, “representatives of the LTTE”. He is criticised as being no more than a conduit for the Sri Lankan authorities. The general range of his studies is wider than that, but it is, nonetheless, quite narrow.
In general, Dr Smith has a background and experience which is more conducive to the conclusion that he is an expert in the LTTE as an organisation.
The evidence of the two witnesses will now be limited to the matters touching on the organisation of LTTE. The difference in the qualifications of the two witnesses is substantial.
Dr Chalk relies upon a number of either confidential or undisclosed sources and that is of concern. It is particularly when Dr Chalk speaks of the organisation of the LTTE he relies upon a document described in footnote 13: “Outline Structure of the LTTE: Confidential document supplied to the author by Sri Lankan sources, November 2006”. Reference to that document is repeated in footnote 17.
He was cross-examined about the document at the committal and at p.851 he said:
“I’d like to find out where you get this information from, you have stated that there are four main sections, a military office department, a central committee, a finance arm and a planning and development secretariat; do you see that?---M’mm.
Your report is footnoted in various places on that page, so for instance the existence of 11 person central committee, is footnoted with the members names outlined; correct?---Yes.
At the end of the page there is a footnote which says ‘Outline structure of the LTTE’ a document which was supplied to you in November 2006; do you see that?---Yes.
I want to ask you about the document you refer to in footnote 13, did that document set out the structure that you described on that page, the four main sections of the LTTE?---The document itself was more extensive, detailing – in more detail this is a redacted version of that document for the sake of clarity.
The information on that page that describes the four main sections, comes from this document; is that right?---That’s correct.
It’s described as a confidential document, what do you mean by a confidential document?---That it’s not been publicly released.
All right, but you are in essence, publicly releasing it by publishing the information in it?---That’s why it’s a redacted version of the document. I have not reproduced the document in tis entirety and I have permission to reproduce those elements that I did.
Before you published this part of your report, did you check to see if you had permission to publish it, did you?---Yes.
Did you check that from the person who gave you the document did you?
---Yes.The document was given to you by what you describe as Sri Lankan sources; what do you mean by Sri Lankan sources?---Government sources.
What arm of the government gave you this document or do you need to check?---No.
- - - before you can say that?---The security arm of the government.
What part of the security army, was it?---Intelligence services.
An intelligence officer of the Sri Lankan army gave you a document about the structure of the LTTE, is that right?---Not of the army.
Sorry?---Not an intelligence officer of the army, it was an intelligence officer, not a military intelligence officer.
What intelligence service supplied you with the document?---The Sri Lankan intelligence service, the Internal Intelligence Service.
The IIS, is that right?---Yes.
You received this document in November last year; is that right?---Yes.
Where were you when you got it?---I was in the United States.
So someone from the IIS who was in the United States, gave you this confidential document; is that right?---No.
How did you get it?---I got it through a secure transmission that was sent via Rand.
From Colombo?---I do not know where it was sent from.
Do you know who sent it to you?---I know the person.
Are you prepared to nominate the person?---No.
Why not?---Because it was requested that I didn’t. I respect the confidentiality of the source.
So are you claiming sort of a journalist privilege or academic privilege, or how would you describe your desire not to answer?---Well frequently in research an understanding is if information is to be used in a document that is to be published, and the source would rather the specifics of that information not be known, an agreement of non-attribution is made. It’s a standard practice.
Did you inform this person who provided you with this document, that you were going to quote from it in your court report?---Not in my court report, no. But I did let him know that it would be used in another report which was published before this report.
What was that one?---It was a Rand document.
So having been granted permission to quote from it in a Rand document, you reproduced that part of the information from the Rand document in this report; is that correct?---Correct.
If you could turn to p.6 where you have outlined various aspects of the military office department. Did the information contained on p.6 down to footnote 17, also come from the same document?---Part of it.
Footnote 17 quotes the same document does it not?---It does.
Also a paper that you wrote entitled, ‘Liberation Tigers of Tamil Eelman’s International Organisation and Operations: A preliminary analysis. Commentary No.77 CSIS March 17, 2000”. So you quote your own document there?---M’mm.
The 2000 paper also touched on the structure as you understood it, of the LTTE; is that not right?---Yes.
You obtained the information that you published in that document, also from Sri Lankan Government sources; is that not right?---No that – the information in that document was procured from a wide range of sources, not exclusively Sri Lankan Government sources.
One was an Asia Week article written by a journalist called Davis; is that right?---Yes.
One was a book written by a colleague of yours, Rowan Gunaratna; is that correct?---Yes that’s correct.
And from Sri Lankan Government sources; is that right?---That’s correct.
What Sri Lankan Government sources?---Military, predominantly military sources.
If I can just go back to p.6 of your first report, you give an estimate of the current fighting strength of the LTTE. Apparently this is information that is based on author interviews, Sri Lankan Armed Forces and intelligence, and Internal Intelligence Bureau, Colombo, 2004; is that right?---Yes, and it also, if you turn the page, some of the sources listed in footnote 19 would have also contributed to that.
Footnote 19 outlines again “Author interviews, Sri Lankan Armed Forces and western diplomat officials?---M’mm.
Colombo, May 2004, and a number of papers and newspaper articles; is that right?---That’s right.
Were these briefings that you received from the Sri Lankan Armed Forces members and the Internal Intelligence Bureau in Colombo in May 2004 confidential?---No mention was made of it being confidential. I don’t have a security clearance in Sri Lanka, so.
Who did you speak with?---Precisely these people.
Yes, but who are they?---Again, non-attribution. I’m not prepared to provide specific names.
Sorry?---I’m not prepared to provide specific names.
Why not?---On the basis of what I previously stated, non-attribution, that’s the agreement.
There was a specific agreement made by you with each one of the people that you spoke with in Colombo in May 2004 from the Sri Lankan Armed Forces and from the Internal Intelligence Bureau that you would not reveal the names of your sources; is that right?---Correct.
You would refuse to do so even if a court directed you to; is that what you’re saying?---I don’t know what the legal position is, but unless I was presented with perjury, yes.
It wouldn’t be perjury; you wouldn’t be prepared to perjure yourself, surely?---No – or whatever the term is.
Does the same apply to the western diplomatic official that you referred to in footnote 19 of your affidavit?---Yes.
What country does that person come from?---I’d rather not say.
Was that part of the agreement you had with the person?---Yes.
Not only would you not say who they are, but you wouldn’t even reveal what country they came from; is that right?---That is correct.
Have you had similar discussions with people involved with the LTTE?
---Yes.Who?---Their political representatives in Australia, their political representatives in Canada. I’ve actually spoken to one former member of the LTTE in Sri Lanka. Names were never presented to me so I cannot - - -
You don’t know the names of these people?---No.
When did you speak with the political representatives of the LTTE in Australia?---Following the SPUR meetings.
Who were they?---They just presented themselves as representatives of the LTTE point of view.
The point of view?---I can only assume that that was a reference to the political representation of the organisation overseas.
They didn’t say they were representatives of the LTTE; is that what you’re saying?---Not directly, no.
They presented themselves as people who were sympathisers with the LTTE; is that what you’re saying?---Presenting the political? No, they stated, ‘We would like to present the political point of view of the LTTE’.
Who is they?---These individuals that approached me.
Yes, but who are they?---I don’t know their names. They never offered them.
When did you meet with them?---In Melbourne, in Canberra, and in Oslo.
When?---At the times of the WAPS meetings and at the times of the SPUR meetings.
Did they outline the structure of the LTTE to you?---No.
Did you give them any undertaking that you would not reveal their names?
COUNSEL: He didn’t know what their names were?---No.
MR BOULTON: It doesn’t follow there was no undertaking.
(Discussion ensued.)
Did those people, wherever it is that you met them, tell you about any of the matters that are outlined on pp.5 or 6 of this report?---No.
HIS HONOUR: Dr Chalk how did you happen to have a meeting with persons you believed to put the view of the LTTE, how was that arranged?
---It wasn’t arranged, they approached me.At these meetings, conferences?—Yes, following the conferences.
Yes?---So they were in attendance.
MR BOULTON: Have you ever done anything systematic or deliberate or organised, to actually seek out information about the structure of the LTTE from anyone other than the Sri Lankan armed forces, the Sri Lankan Internal Investigations Bureau, western diplomats or newspaper articles, journals, papers or the like?---I have and have been unsuccessful.
What have you done?---I’ve attempted to make contact through various intermediaries who do have contact with the organisation and members of the organisation. It has never been available to me so I’ve had to rely on the – on the sources that I’ve had.”
Whatever the position of non-attribution of sources in journalists or academics might be, such an idea creates great difficulty in a criminal trial. It is almost impossible to cross-examine about undisclosed sources because they cannot be checked.
It seems to follow that much of what Dr Chalk gives evidence about on the question of structure is derived from the above report. He was cross-examined further about it at the committal:
“In footnote 26 on p.11, you actually nominate key LTTE political councillors, who gave you those names?---Those names were included in a confidential report that was given to me in November 2006.”
On numerous occasions Dr Chalk relies upon Sri Lankan armed force officials and intelligence officials. They are not named, in summary, that material is covered when the witness said at page 880, line 24 and following:
“For the reasons that you’ve already outlined many times in your evidence today, is it the case that you would not stipulate any further particulars about who the source of that information is?--- It is.”
Similar criticisms were directed at his “knowledge” of attacks purportedly by the LTTE. The possibility of Dr Chalk giving that evidence is not pursued, so I will not separately deal with it.
When Dr Chalk’s evidence is looked at as a whole, it is difficult to see what the factual foundation for his opinion is sufficient for it to be properly and adequately tested in a criminal trial.
The circumstances in which expert evidence will be admissible are set out clearly and succinctly by Heydon JA in Makita (see paragraph 23) .
When dealing with the proposed evidence of Dr Chalk, it becomes clear that there are difficulties in his “refusal” to identify and hence make available his sources, particularly as they relate to the critical issue of the structure of the LTTE. There is the risk in the circumstances that he becomes, if not actually, little more than a conduit between the jury and those who have provided him the information.
If, in accordance with Makita –
(a) it must be established that the facts on which the opinion is based form a proper basis for the opinion; and
(b) the evidence must explain how his training and expertise in the field has been applied to observations or assumed facts so as to produce his opinion.
When considering the proposed evidence of Dr Chalk, it seems to me that neither the basis of his opinion nor the application of his specialised knowledge to it can be made out.
In those circumstances I am not satisfied that his evidence is admissible.
If I am wrong about that, I am satisfied that the difficulties which defence counsel face in relation to the cross-examination of Dr Chalk are such that I should exercise my discretion to exclude the evidence.
Dr Smith’s evidence reveals that his actual experience in Sri Lanka is superior to that of Dr Chalk in many ways. Apart from the qualification set out earlier, Dr Smith, in his affidavit, went on to say:
“PARA 11
As such, my knowledge of Sri Lankan politics and security issues is based upon interviews, often from sources that can unequivocally be considered ‘sensitive’. I therefore consider that much of the information I use to compile expert reports is often better and perhaps more up-to-date than the information that is available from secondary sources and websites.
Much of the information in my report annexed to this affidavit at ‘CS-1’ cannot be found on websites or newspapers – or even from commercial intelligence sources – but is the outcome of field research conducted over many years, across Sri Lanka and not just in Colombo.
I confirm that insofar as the facts stated in my report annexed to this affidavit at ‘CS-1’ are within my knowledge. I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion. I have addressed this report to the Court.”
As with many issues faced in these Courts, Dr Smith’s evidence suffers from some of the vices already outlined with reference to Dr Chalk. Some of his sources are treated as confidential. The general nature of the sources are known. In other instances, although not making any claim to confidentiality, he simply does not know the names of those to whom he spoke. He is quite frank about those matters. All of that has to be considered in combination with his ongoing studies of the events in Sri Lanka. Dr Smith was cross-examined about these matters in detail by Mr Boulton and I will set out some important parts of that cross-examination:
“Thank you. Who contracts you to provide research assistance?---A variety – I mean, just at the moment a good deal of my work is writing expert witness reports for the British Courts on Tamil asylum seekers in the U.K. It’s my job to help the courts make up their mind as to whether or not to grant asylum. That has been much busier – I’ve had much more work in that direction than I imagined but I guess I’ve done work for over the last couple of years for organisations in the United States, in the Netherlands and in the U.K. as well.
Just in relation to the court reports in relation to asylum seekers, who has contracted you there, the person seeking asylum or the Home Office or its equivalent who might be defending a government decision about asylum?
---Whoever wishes to – generally the – the solicitors representing the asylum seekers or the refugee legal centre which is funded by the home office to assist asylum seekers.Have you provided reports to the British government in the context of these court cases?---Not directly to the government, no, I’m shortly to do – to do some similar kind work for the – for the Home Office or not directly related to the Home Office but in support of their country of origin information process and I’m about to give some lecture in that area. I’m – I’m open to doing work for the Home Office certainly I just haven’t announced it yet.
Fine, you mentioned work that you have undertaken in the Netherlands, in the United States, and Britain, what work have you undertaken in the United States?---I’ve done some work for a consultancy firm called Central Technology, to look at arms trafficking, undertaken by the LTTE and Diaspora activities in South-East Asia. In the Netherlands I worked for an organisation called the Klingindal Institute, looking at the extent to which the LTTE was prepared to (indistinct) restrained and becoming a mainstream political movement after the ceasefire agreement in 2002.
What is the Klingindal Institute?---It’s a research institute in the Netherlands in the Hague – funded by that particular project was funded by the – the Ministry of Foreign Affairs in the Netherlands.
Who funded the work that you undertook in the United States?---I was the, I was paid by the consultancy firm.
What was that firm?---Sorry?
What’s the name of the firm?---Centro Technology.
For whom was that report commissioned?---I don’t know. The American Government.
The United States Government?---Yes.
In your affidavit you have stated that are frequently asked to advise policy makers on Sri Lanka, and that you have advised the UK’s foreign and Commonwealth Office, including the British High Commission - - -?---Yes.
In Sri Lanka?---Yes.
Was that on a contract?---That was a contract through Kings College. Kings College through of my first career at British Universities; the University of Sussex and Kings College, London. I was what was called in the UK a contract researcher whereby I would go out and look out for consultancy contracts, research contracts, grants and so on and bring those to the College and that would kind of pay my way through the system. And when I was at Kings College the last two or three years, or I was there, an increasing amount of my work came from the British Government, the Foreign Office, the Department for International Development in particular. And that was the – quite a bit of my work around 2003/2004, was paid for by the British High Commission in Colombo to work for the government of Sri Lanka.
In that capacity you describe yourself as a technical adviser to the government of Sri Lanka; is that right?---That’s how they, that’s how they billed me. After the ceasefire the government of Sri Lanka set up a defence review committee to look at the defence – the organisation of defence and security in Sri Lanka, and to look at future defence policy and posture. I was asked by the Chair, General Dennis Perera to become his technical adviser, which I did so with a colleague, in addition – a colleague from Kings College.
Although the work that you conducted was paid for by the British Government, you were providing advice to the Sri Lankan Government; is that correct?---Absolutely, yes.
Was your position as technical adviser contingent on the approval of the Sri Lankan Government? Could they - - -?---Yes it was – I was asked to serve on that committee –or to serve that committee by the Chair who was appointed by the Prime Minister.
The Prime Minister of Sri Lanka?---Yes.
Do you have any current role in advising the Sri Lankan Government?---No I don’t. I have contacts in the government; I have contacts at the High Commission in London, the Sri Lankan High Commission in London, but I have no ongoing contracts with the government or indeed with the British Government.
What do you mean by you have contacts with Sri Lankan Government officials in London and Colombo?---I visit occasionally to discuss Sri Lankan issues.
So as a private researcher, as an individual, as somebody not employed by any university, you can gain access to high ranks of government in Sri Lanka; is that correct?---Yes I can – I mean I have a network of contacts in Sri Lanka and outside Sri Lanka that I have maintained since leaving Kings College, yes.
You’re a regular visitor to Sri Lanka; have been since the 1990s apparently; is that right?---Yes indeed, yes that’s correct.
During the time that you have spent in Sri Lanka you have built professional relationships with members of the government; is that right?---With members of the government yes, and other individuals and organisations as well.
You’ve built professional relationships with very senior police officers; is that correct?---That is correct, yes.
And you’ve built relationships with very senior members of the Sri Lankan Armed Forces; is that correct?---Yes, yes to a certain extent.
You have been given access to privileged information that would not normally be available to non-Sri Lankan citizens; is that correct?---I think – I think – well I think I have developed some close, some close contacts and some good relationships with in Colombo especially, not just from government, but from elsewhere. And I feel that I am able to access you know, good levels of information about the situation in Sri Lanka.
You have excellent contacts with the Intelligence Services in Sri Lanka?
---Contacts with the Intelligence Services, yes.Your affidavit reads that your report provided to the Federal Police in this case, ‘Is based significantly upon interviews conducted and knowledge acquired during recent visits. I have excellent contacts with the police, the Armed Forces, including the Intelligence Services, which includes access to detailed and sensitive sources of information.’ Obviously - - -?---Yes I think that’s correct.
- - - that’s a fair and accurate summary of the type of contact that you have; is that right?---Yes, yes.
So that you have been given extensive access to Sri Lankan intelligence information?---Not extensive, no, but – no, it depends what you mean by extensive. I feel that I’m able to maintain a good grasp of information and analysis on what is happening in Sri Lanka, and I do that by visiting Sri Lanka regularly and talking to people in government or in the security services and in the NGO community, journalists and so on and so forth. I try and visit as regularly as possible, usually about three times a year, to maintain these contacts and to maintain my level of information.
Are you able to tell the court who it is that provides you with intelligence information in Sri Lanka?---I – I would rather not because I think that the people who talk to me would rather that I didn’t, and the interviews that I get from the intelligence services are off the record. Less so with the police and so on, but the intelligence interviews that I’ve had are generally off the record.
Nevertheless, whether they be off the record or not, you have used them extensively during the course of your preparation and authorship of the report which is tendered in these proceedings; is that not correct?---If I’m referring to an off the record interview I will refer to it in a footnote as off the record.
What about the on the record - - -?---If it’s on the record it’s on the record, if it’s a published source it’s a published source.
What about your contacts with the police; have they been on the record or off the record?---Both, both. Sometimes I am given information and asked to keep it off the record, but as much as possible, and this is my job I think as a researcher, is to bring as much of that information as possible on the record and then publish it for – in the public realm. So it’s a mixture.
Would it be fair to say that your knowledge of Sri Lankan politics and security issues is largely based upon interviews?---It’s largely based. I mean, I read as much as possible, I cover Sri Lanka on a weekly basis by keeping up-to-date on websites and so on, newspapers, international commercial intelligence reports such as Jane’s, but the interviews that I do in Sri Lanka are all part and parcel of that information gathering process which is ongoing and which I have to do for my expert witness reports for the British courts. I wouldn’t say – I would not say that I rely exclusively on interviews that I gain in Colombo or elsewhere in Sri Lanka, but I do try and visit as much as possible because I feel that that’s an excellent way of corroborating the information and also cross-referencing and gaining access to new areas of information.
You have read the newspapers about Sri Lanka?---Yes, I do.
You look up websites to find information out about Sri Lanka?---Yes, I do.
You read books about Sri Lanka; correct?---Yes.
The body of knowledge concerning Sri Lanka is restricted in its published form, is it not?---I’m sorry, I don’t understand your question.
There are not many books about Sri Lanka, the current political - - -?---There are, if you’re prepared to look, particularly if you’re in Sri Lanka, and there is a fair amount of published material. I mean the quality differs obviously but there is information available, there is information available from commercial – what we call commercial intelligence outlets such as Jane’s Information Group for whom I’ve worked in the past, and yes, there is information available on Sri Lanka in published form, both electronic and in the print media.
You nevertheless would rely more on your face to face interviews than you would clearly on other people’s work on this topic, would you not?---It’s a mixture. I mean, you – it’s a constant process of cross-referencing and trying to get as much information on the record as possible and no, I don’t rely exclusively. I mean, I do – I value my contacts in Sri Lanka, I value what they have to say to me, and I try and use that information in a responsible way, but I don’t rely exclusively on it. I also have, you know, my own analysis of what’s going on.
Indeed. Nevertheless, the report which is tendered in this case is substantially the outcome of field research in Sri Lanka, is it not?---Field research and just generally being a researcher specialising on Sri Lanka over the past decade or so. It’s an accumulation, it’s accumulated knowledge.
In your affidavit you said that your knowledge of Sri Lanka politics and security issues is based upon interviews, often from sources that can unequivocally be considered sensitive; do you agree with that?---Yes.
You said that you therefore consider that much of the information that you used to compile expert reports is often better and perhaps more up to date than the information that is available from secondary sources and websites; is that correct?---Yes, I mean, it depends really on which kind of websites, that – I mean, there’s a lot of – I mean, Sri Lanka – the political situation in Sri Lanka, the security situation in Sri Lanka is highly polarised and a lot of information on – on websites is geared to addressing one point of view or the other and as one goes through those – those sources one has to be able to discern what is kind of a partial and partisan and what isn’t, what is good information and - - -
- - - the same would apply to your face-to-face interviews, would it not?
---Yes, yes, of course, I mean, it’s the job of a researcher, it’s my job to – to filter what I think is good information, whether it be from an interview or whether it be from a secondary source and work out what I think is good and correct information and what is not.You said in your affidavit that much of the information in your report which was the next to the affidavit cannot be found on websites or newspapers, or even from commercial intelligent sources but came from field research?
---That’s right, yes, I mean some of the information can be found on – in secondary sources, some of which I – I’ve published myself therefore it becomes a secondary source in itself. Other information comes form – from interviews and my field research.So far as your report deals with security issues, your field research would largely be sourced from Sri Lanka Government officials, would it not?---No, not necessarily, I mean, I talk to a range of people, in fact had the conflict not re-started in 2006, I would imagine that I would now have a running dialogue with the LTTE in Kilinochi, but access to Kilinochi is now heavily restricted. I also talked to journalists, I also talked to non-governmental organisations. I mean, government officials and so on are just on – one area of – of one source of information amongst several within Sri Lanka.
It would be ill-advised to rely on the face value of information given in an interview by a Sri Lanka official about their views of matters touching upon the LTTE, would you accept that as a general proposition?---It depends – it depends in what – in what vein the discussion is taking – I don’t think you can – you can say that that is – is unequivocally true, it’s – you know sometimes you will – you will be talking to somebody and you’ll feel that their analysis of the LTTE is not correct or is – is exaggerated or – or whatever. Sometimes you might think that it’s – that it is a good analysis, it just depends. I don’t think you can take any kind of blanket statement on that at all. Sources of information differ, individuals give you different types of information and an individual can give you different types of information as well.”
That does not represent the whole of his cross-examination, but the material gives a good indication of his method, approach, knowledge and attitude.
It is clear that Dr Smith has a wide ranging experience in the area in which he expresses expertise. He takes his position very seriously. He is in a position to give evidence about the structure of the LTTE both in Sri Lanka and overseas. Some aspects of his evidence are based upon sources which he regards as confidential, but when you look at his evidence as a whole, the development of his expertise is quite broad-based and he has approached all the material critically and he is far removed from being a conduit of others.
When the whole of the cross-examination of Dr Smith at the committal proceeding is looked at, it is clear that he is a witness who can be cross-examined about his evidence in a proper and meaningful way. It would not, in all the circumstances, exercise my discretion to exclude the evidence.
In dealing with Dr Smith, I would respectfully adopt the reasons of Kellam J in the matter of Pong Su (Ruling No.19)[9] when he was dealing with the evidence of Dr Buzo at [31]:
“I am satisfied on the material before me that knowledge as to the internal workings of North Korean society, like the field of political science, is a field of specialised knowledge. I am satisfied that Dr Buzo has demonstrated that by reason of his training, study, writing and interpreting duties he is an expert in the circumstances of the political system which pertains in North Korea. I am satisfied that much of what he has to say in his statement and in his evidence is properly the subject of expert knowledge and is not within the realm of knowledge of the ordinary member of the community. I do not accept the submission of Mr O’Sullivan that Dr Buzo necessarily has to have detailed knowledge of the North Korean shipping industry in order to express an opinion as to the position and role of a political secretary on the Pong Su if his statement properly establishes the basis of such opinion. In my view, Dr Buzo’s statement and evidence does properly establish the basis of his opinion in relation to the function of a political officer upon a ship of the type of the Pong Su. The opinion proffered is based upon the witness’s expert knowledge of the political circumstances which pertain to work units in North Korean society. The opinion is based upon facts as have been identified by him, and so far as the opinion is based on assumed facts, there is an identification of the basis upon which the assumption is made. As was amply demonstrated upon the voir dire when Dr Buzo gave evidence, counsel for the accused are able to test the credibility and the weight of the evidence to be given by Dr Buzo. In the end it is a matter for the jury to decide whether the opinion is credible and whether it should be given any weight and if so how much weight. The evidence of Dr Buzo is admissible as part of the circumstantial case to be considered by the jury in relation to such other evidence that is admissible against the accused man Choi. Clearly, the jury would need to be satisfied beyond reasonable doubt of the nature of the authority of Choi before he could be convicted, and the evidence of Dr Buzo alone could not so satisfy them. However, that is not to say that such evidence is inadmissible. It will be a matter entirely for the jury to consider whether Dr Buzo’s evidence has any and if so what credibility or weight, and whether in combination with such other evidence as may be admissible, they are satisfied beyond reasonable doubt of the power and authority of Choi upon the ship.”
[9]Op. cit.
As a matter of contrast, His Honour excluded the evidence of two proposed witnesses, Balbina Hwang and Joseph Bermudez. The position of those two witnesses was, in my view, somewhat analogous to that of Dr Chalk and His Honour’s reasoning supports the exclusion of his evidence.
In this case, as I have already observed, the fact that “evidence” of these proposed witnesses was in the form of a report.
As the argument progressed, a number of matters were “removed” from the reports. In particular, material attributing various conduct to LTTE was not relied upon. In Dr Smith’s report, paragraphs 1 – 14 as amended set out the history of the LTTE. Paragraphs 16 and 17 and 32 – 37 as amended set out the nature of the leadership and objectives of the LTTE. Paragraph 51 set out the dependence of the LTTE on foreign funding.
The material obtained in paragraphs 63 and 77 was left in a somewhat unsatisfactory position after the committal. If it is to be relied upon by the Crown, the basis for Dr Smith’s belief would need to be clearly established. The material in paragraphs 98 – 101 and 105 also requires more detailed examination.
It is important that Dr Smith’s evidence be reduced to statement form, i.e. an actual proof of evidence which it is anticipated he will give. In general, I accept that he is qualified to give evidence of the history and structure of the LTTE, including overseas financing.
Until his proof is produced and he has been tested on voir dire, I am not in a position to rule finally on the matter, but proceed generally on the basis that a good part of his evidence, as now confined, will be admitted.
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