Courtroom Manoeuvring Causes Defence Counsel to Claim Sabotage
A morning session of cross-examination of the civil party witness Say Sen contributed little to the body of knowledge of Case 002/02. Despite many attempts by Nuon Chea’s Defence Counsel,Victor Koppe, to encouraging Say Sen to better recall the people he knew and the events of the years 1974 to 1979, the witness had negligibly more to add to his prior testimony. A plethora of objections from other counsel and adverse rulings from the bench, further chewed up Mr. Koppe’s precious examination time with bickering.
Mr. Koppe opened with reiterating that Mr. Say had testified that he knew five people of one family: Grandmother Ngor; her husband, Meas Khun; her daughter, Meas Surat; her son, Meas Sokha and in law, Mon Boeun. He asked the witness if he knew why they had been arrested.
The President sustained Senior Assistant Prosecutor de Wilde’s objection that this was a repetitive question. He ruled that it is intended to draw speculation and, as such, the question should be asked of those that did the arresting.
After Mr. Say said that he had no special relationship to Grandmother Ngor, he explained that he “treated her like a mother and she treated (him) like a son.” The relationship continues on this basis today although, as he has been busy, he has not seen her for a year. Mr. Say did not know whether Grandmother Ngor knew about the rape of her daughter, Meas Surat. He has never discussed it with her. They “were lucky to survive and didn’t want to talk about the misery (they) went through in regime.”
When Mr. Koppe tried to read in from Grandmother Ngor’s statement, Mr. de Wilde objected as “twice as speculative and inappropriate.” Mr. Koppe agreed to move on and asked if Meas Sokha (the brother) knew of the rape. Again, Mr. Say said they had never discussed it and has not seen Meas Surat “for a long time.” International Civil Party Lead Co-Lawyer, Marie Guiraud, objected to questions about whether Meas Surat wanted to file to be a civil party or to claim compensation for a rape as speculative. Mr. Koppe rephrased the inquiry but Mr. Say said he did not know the answer. Mr. Say then went on to testify at variance with his testimony of yesterday. He said he “didn’t know for sure that she was sexually raped at the time, (he )only knew they played around with her sexually but not the rape.” Mr. Koppe was quick in seeking clarification that he was talking about the rape of two women by guards who violated them with M79 missiles, and one woman died. Mr. Say confirmed it was but repeated that he knew “only of physical playing around but not of a sexual act” concerning Meas Surat.
The President cautioned the defence counsel not to use staff names but to use “unknown” or “X”.
Ms. Guiraud raised a concern about the potential repercussions on the life of an alleged victim of alleged violence who has never revealed themselves publicly.
Mr. Koppe said he “can’t begin to comprehend this objection” but Judge Fenz did, and summarized for him that an objection was not being made. “Counsel is raising an issue of privacy when it comes to an issue of sexual violence.” The judge said that the Chamber
acknowledges an issue with privacy of victims of sexual violence and the bench was directing that, on future occasions, identification of such an individual should be made by passing a witness the person’s name on a piece of paper. “If more questions are necessary, the Chamber would envisage a closed session.”
Mr. Say did not watch a rape of Meas Surat. The President told Mr. Say he did not have to answer the follow up question of how he then knew about the rape as he had already answered it.
When asked if he had seen the executions of Meas Khun and Mon Boeun he said that he had seen Khun interrogated and tortured, and knew he had passed away a month later. On further questioning, he admitted to having carried Meas Khun back to detention after the torture but that he was not at the interrogation. Neither could he ask Meas Khun about it later as Meas Khun was detained in the west and he was detained in the east.
Mr. Koppe then queried if Mr. Say knew why Mon Boeun was arrested and addressed the court: “I know you don’t want to hear it but I’m allowed to ask it.” The President ruled it was repetitive and speculative and the witness did not need to answer.
Mr. Say did not know Sok Suth or Sok San. He did not know the names of many of the prisoners as most of them passed away. “Only children and I survived the period.” He could remember a prisoner, Ta Chin, who died, and Ta Non. Counsel read from a statement the witness had made to DC-Cam in which he was quoting as saying that he “knew most of the prisoners” and asked what he meant by “knew them.” Eventually, Mr. Say could recall “Panh”, a senior Lon Nol Military Officer. He was too young to know his position and “had no right” to ask the man, but Panh was considered a prisoner of war and killed.
The President asked defence counsel “to specify clearly (his) question. During the period of Democratic Kampuchea, pseudonyms were used. The civil party was not responsible for keeping a list of prisoners.” Mr. Koppe protested that he only wanted one name, that that was all he was asking. Nil Nonn said such confusion and repetitive questions were not allowed, that the civil party had provided two names, and that the minor tasks with which the witness had been charged had not required names in order for him to do his job.
Ms. Guiraud objected that the counsel was trying to say that what the civil party was testifying to was uncorroborated, that this is not proper questioning, and that the questions are “out of place.”
She added a stinging rebuke: “For the record, he has badly interpreted DC-Cam evidence which did not say she was raped. It is a tactic to distort the evidence of the civil party. Counsel needs latitude but not to insinuate that civil party witnesses are liars.”
Mr. de Wilde chimed in that the “civil party never said he told the prisoners that they were going back to the cooperatives. It was always Penh.”
The President thanked counsel for their comments and cited Rule 91.3 that states that parties can oppose question that are not truthful. He pointed out that the “Chamber has discretion to decide on questions. Each party has rights in the questions put. It is the Chamber’s duty to decide and to expedite the hearing but the same thing keeps happening.” Mr. Koppe said he would rephrase “broader” but the next question (on if Mr. Say knew any more details of prisoners so Mr. Koppe could find corroboration) also was ruled as answered and as one that could lead to speculation.
Mr. Koppe asked Mr. Say if he saw his father’s execution. He had not. Mr. Koppe questioned him as to why, then, he had told DC-Cam investigators that he had “seen it with your own eyes.” Ms.Guiraud asked for the reference to the DC-Cam document. The court told defence counsel to cite documents correctly “in three languages.” Mr. Koppe did so and then read in that Mr. Say had said he climbed a tamarind tree and saw his father being hit with a hoe. Mr. Say’s statement said that the witness had later returned and retrieved his father’s clothes but his hat was taken by the Deputy Chief of the prison. Civil Party Co-Lawyer Martine Jacquin and National Co-Prosecutor Chea Leang objected on the basis of repetition. Mr. Say repeated that he had not seen the murder.
Mr. Say could not remember when Kev Chandara was detained, people were “going in and out.”
The President interrupted to instruct Mr. Koppe to use yesterday’s transcript as a basis for putting his questions, that there was no question about Kev Chandara. Mr. Koppe retorted that Judge Lavergne had asked the question. Judge Lavergne posited that as, Kev Chandara had two aliases, Mr. Say might know him under a different name. The National Co-Prosecutor supplied the aliases and Mr. Say, after some confusion, said he could remember that Kev Chandara was in Kraing Ta Chan. Mr. Koppe could not pry out of him as to when Mr. Chandara was in the prison. The counsel was castigated by the court for his efforts and warned not to add anything else to his questions that would evoke “unnecessary responses.” Nil Nonn said there was a Cambodian expression: “only answer what you are asked or you put yourself in a hot seat.”
Mr. Koppe asked Mr. Say if he recalled a scene which Mr. Chandara was forced to watch of the mutilation of women, but Mr. Say did not. Neither did he know Keo Sam Ath whom Mr. Chandara claimed was the only other survivor of Kraing Ta Chan besides himself. Nor did Mr. Say see the release of 40 to 50 prisoners around the time of the liberation of Phnom Penh, and, regardless of anything to which another witness had testified, he knew of no such release. Mr. Koppe quoted from the commune chief’s testimony that said Mr. Say was one of the prisoners released. Mr. Say contributed that he remembered only four or five prisoners being released and that he “was freed in 1979.” Mr. de Wilde offered a word of explanation. He felt the “ambiguity” had arisen because Mr. Koppe had read only part of the quote concerning the release. He then read in from the commune chief’s statement that his order was “to release Say Sen to look after the water buffaloes.” Mr. de Wilde felt this “information was enlightening.” Judge Lavergne said the statement reads: “had him tend the buffaloes.” Mr. Koppe protested that he was just asking for clarification here.
Mr. Say has spoken to neighbors, survivors and authorities about these traumatic events. For instance, he spoke to representatives of the Governor of Tram Kok province in 1996. He could not recall the details as he has been interviewed so many times. When Mr. Koppe reviewed the circumstances of his father’s killing from the prior statement, Mr. Say could not recall giving them to the interviewer as it had been “many years ago.” He did remember talking to a journalist about the deaths of two famous actors, Nop Nem and Kim Nova. He had seen them on their arrival. Nop Nem was taken out and executed. Kim Nova was executed after she “was played around with.”
Mr. de Wilde objected to questions on these events as the information is not in the evidence in chief. There had been no interrogation of the actors. Mr. Say could not remember exactly what happened when the actors were brought in. He had not recognized them but someone in the office of the Chief told him who they were. He knew they had been taken to Chhen’s office and then taken out and killed, not detained. Ms. Guiraud objected when Mr. Koppe tried again to ask about the interrogation of these prisoners as there was no evidence that any had taken place. The President ordered counsel to rephrase and only ask the unanswered part, cautioning him “not to intimidate” the witness. When Mr. Koppe said he was just trying to help the witness remember something about a famous actress, Nil Nonn said that not everyone is interested in film actors, that he, himself, was not, and counsel was not to either repeat questions or ask questions to which there had already been a response.
Mr. de Wilde raised an objection that the documents cited had been cross-checked and there was no mention of a Kim Nova. He named a different actress who was born in Kampot province. After the break, Mr. Koppe cited that, by process of elimination, the actress that had been referenced as being executed at Kraing Ta Chan had to be either Kim Nova or another female lead of the film “Time to Cry.” It could not have been “just some random actress.” Judge Lavergne responded that the documents would have to be read in more detail but that he did not think there was any uncertainty over identification. He further remarked that this “manner of asking questions is highly problematic.” Again, Mr. Koppe defended his process on the basis that he was asking open questions about what had happened. Ms. Guiraud protested that the civil party had said he did not recognize the woman but that she had been identified by someone else and wanted to know “what is the point in this line of questioning?”
Mr. Koppe protested: “I’m being sabotaged. Enough is enough already.”
The President again ruled that he would not allow questions with “the repeated part included.”
Mr. Koppe moved on to ask Mr. Say if he knew the official name of Kraing Ta Chan. The witness only knew it as Kraing Ta Chan Security Office or Prison. He had not seen any other name written on any documents. Further, he did not know anything about it being a “re-education centre,” nor about the purpose of it being to “re-educated” people. The civil party testified that he only ever held conversations with Ta An about his duties collecting sugar palm juice or tending cattle. Mr. Koppe tried to ask Mr. Say if, while he was at Kraing Ta Chan, it had surprised him that, although everything was done in secret, he was allowed to wander. Mr. de Wilde rose on the points that the witness did not have access either to the findings of the court nor would he have had access to what was going on in the “broader country” at the time. He added Mr. Say “could not be confronted over facts he didn’t know.”
The President ruled the question was a request for speculation and no answer was necessary.
Mr. Say said he did not observe the guards being secretive. Mr. Koppe brought up that he had seen the barbed wire, heard the loud music, and knew people were prevented from seeing executions. Mr. Say admitted he saw the three levels of barbed wire. Another try at finding out if the witness thought it “surprising” that he could go in and out of the prison elicited from Mr. Say only that he was fearful at the time when he was tending the water buffaloes.
There was quite a heated debate in the courtroom when Mr. Say said that he had not been instructed not to talk to people when he was outside the prison because there were no people living around the prison at that time for at least 5 to 6 km. Mr. Kobbe challenged this because there are “many, many villages” there now. The President asked for Mr. Kobbe to quote the basis of his question. There was none. Counsel was asking for the witness’s general knowledge. Mr. Kobbe referred to a map that shows Mr. Say’s home some three km. from Kraing Ta Chan and various villages. Mr. de Wilde jumped in saying that Mr. Koppe must be “confused” about the topography as there are five or six hills around the prison site and not a lot of villages. He claimed “the reality of the map is being distorted.” The President acknowledged that the map might not reflect what the civil party experienced in 1975-1979, but Mr. Koppe said he was going on his personal observations. Mr. Say clarified that there are some villages there now but not when he was at Kraing Ta Chan.
Mr. Koppe concluded his cross-examination of Mr. Say by putting to him that, if he had been in Kraing Ta Chan at all, it was briefly before 1975 and that he was not there at liberation. “Not true. I escaped in 1979,” strongly voiced the witness.
Khieu Samphan National Counsel Kong Sam Onn wanted a better explanation of Mr. Say’s time in the military unit from which he had fled. Mr. Say explained that he was never a member of the military. He had just been a guard. When a B52 bomber conducted a bombing raid, he had rung a wooden bell in warning “of the bad situation” and then returned to his village. He was not sure if this was in 1973 or 1974.
The cross-examination shifted to miscellaneous details about Mr. Say’s time in the Kraing Ta Chan. There was one other person brought to the prison when Mr. Say was arrested but he was put in a separate building and Mr. Say never saw him again. It was in the wet season. As the witness cannot read, Mr. Kong read out the text on a map and asked him to identify various buildings in the prison compound. Mr. Say did not know the source of the information from which the map had been drawn. He pointed out the buildings where he had been detained. On arrival, he was in the west house but he was moved several months later to the east house. To his knowledge, the interrogation room had only ever been in the one location. He could not remember exactly how long his period of initial detention was but he thought one to two weeks. Mr. Say kept track of the days prisoners survived after torture by bending leaves on the branch of a palm tree every night. Maximum length of survival was 18 days. He said he “had been there quite some time” before he was allowed out to carry urine and faeces and that was when he started the count. Three other prisoners also were allowed out to work: Ta Chin Ta Muk and Yeay Ngor. Mr. Say bristled at Mr. Kong’s suggestion that he had been released shortly after his arrest in 1974. He was emphatic that “no one was released. We were let out to work.” There may have been others doing work in other buildings but he could not recall their names. Neither could he remember how long he had been the one to shackle in the other prisoners as he was “young at the time.” Old Yeay Ngor was the cook but frequently he helped distribute the rice and soup with Ta Chin. He does not know who would have had the task for other groups. Other work he did included ploughing the fields using water buffalo, planting rice and vegetables such as cucumbers. Ta Chin carried urine and faeces too, and worked with him in the fields. They tended to a pair of buffalo each.
Mr. Say testified that, prior to 1975, Ta Chhen was head of the security office. After that date, Ta An, Ta Penh and Big Duch were the prison administration. Mr. Kong notified the court that he would reserve his questions on staff until after the WESU report and the Tribunal’s ruling.
Mr. Kong asked Mr. Say to explain what he meant in a statement when, concerning a rape in the mobile unit, he had said someone had told him: “he had just done, go and see.” Mr. Say said a guard had told him that he had just killed some women and ordered him to go and bury them. When he returned from this duty the guard had asked him if he “had seen anything.” He told the guard he had seen the M79 missiles the guard had put into the women’s vaginas. Mr. Say said he “did not dare say anything about it to anyone, that he “would have done anything to survive.”
The witness defined a “moral offence” as “to play around with, to molest a woman.” He did not know what the punishment for it was. Neither did he know if any prisoners were accused of immoral offences.
Mr. Say saw Ta Mok two or three times. Not anticipating that he would ever be testifying, he had not counted the visits. It was probably after the liberation of Phnom Penh but he could not recall the year. Soldiers identified Ta Mok to him. Mr. Say had been walking his water buffalo to the pond, when Ta Mok got out of a car two to three meters away from him. The car was parked near the east gate. Ta Mok met Ta An and they went into the office. A security guard told him who it was on his way back from the pond after Ta Mok, also known as Ta 15, had gone. He had heard of Ta 15 but he got a chance the others in the mobile unit did not to see him. Mr. Say had not dared to look straight at the leader.
Mr. Kong moved on to the gravesites. Mr. Say could not estimate the number of them. “Many…some were small, some larger. One pit contained only two or three bodies.”
Neither had he counted the coconut trees. Some have died and there are only 20 to 30 left now.
He did not know how many pits he would have covered: “So many, too many to recall them all.”
He had gone to the site of the exhumations the year of the liberation to pray for the dead. He had not worked on the exhumation. The sites he visited had already been dug out and there was a very strong smell. It was nearby where some gold had been found. A monk’s committee was involved in counting the remains, he had not done so.
Mr. Say had met Yeay Ngor in prison. He had met her husband Khun first as Khun was brought in before the others in the family. Mr. Say could not remember how long it was between when Khun and the others were brought to Kraing Ta Chan. Mr. Say could remember all of the children’s names. They were put to work on the plantation and in the rice fields, “whatever was ordered.” He knew that Boeun had died from a beaten received during interrogation. As Ngor was old, she was assigned light work of making porridge, gruel.
As it was 3:30 P.M. on a Friday and traffic would shortly be getting bad, the President called an adjournment. He reminded Mr. Say that his testimony was not finished, that he would be called again.
With that, every one made haste for the parking lot.