16 June 2017

Liberia: Sable Mining Bribery Trial - Justice Banks Identifies Errors in Judge Gbeisay's Ruling - Grants Certiorari

Monrovia — Prosecution lawyers in the landmark Sable Mining bribery trial triggered by a Global Witness report involving several current and former officials of government have been granted a Writ of Certiorari after Justice in Chambers, Philip A. Z. Banks, III, found several flaws in the rulings of the trial judge.

"This prejudice was further shown by the trial judge's threat to imprison the state prosecutors if the witness was not produced. In the cause of the arguments held with the Justice in Chambers, the co-respondent judge admitted that he made such threat by the assertion that he was only attempting to instill fear in the prosecutors" - Associate Justice Philip Banks ruling

A Writ of Certiorari is an order a higher court issues in order to review the decision and proceedings in a lower court and determine whether there were any irregularities.

Prosecution lawyers filed for the Writ based on their conviction that Judge Yormie Gbeisay of Criminal Court "C" made several erroneous rulings during the course of the trial and his refusal to rescind those rulings.

The Complaint

As part of reasons requesting certiorari, the prosecution noted that Judge Gbeisay, without the defendants providing any evidence that the emails and spreadsheet presented by the prosecution as evidence were obtained through hacking and mere hearsay, ruled setting the coming of Heine van Neikerk, who gave the instruments to the prosecution to testify in court, as precondition for the admission of the instruments into evidence.

Debunking Judge Gbeisay's assertion that Neikerk made grave allegations against the defendants, the prosecution, noted in their petition for the certiorari that, "Petitioner submits that Heine van Niekerk did not give testimony and/or make allegations against the defendants in his sworn statement to be considered by the court as 'grave allegations'".

The prosecution further described as "inconsistent, incoherent, prejudicial and above all grossly erroneous" the judge's statement that "... The email and the attached spreadsheets in question, if they were addressed to Hans-Van Niekerk, they became the properties of Hans Van Niekerk upon receipt of them.

In the minds of this court, the burden of proof shifts to the objector to prove the contrary that the emails and spreadsheets were not provided by Hans Van Niekerk or that Han Van Niekerk was not the recipient of any e-mail from Co - defendant Cllr. H. Varney G. Sherman... "

Still bringing the Justice in Chamber's attention to the litany of 'errors' on the part of Judge Gbeisay, the prosecutors recalled his statement:

"In response prosecution maintained and argued that the emails and spreadsheets were voluntarily given to the government of Liberia's investigating team by Heine van Niekerk, Sable Mining executive for West Africa with whom Cllr. H. Varney G. Sherman had the series of email exchanges.

"They, however, clarified that the statement was either a deliberate misstatement of the prosecution's position or erroneously stated.

"The fact is that it was both Heine van Niekerk and Paul O'Sullivan that gave the subject emails and its attachments to the investigators. Your Honor is respectfully requested to take judicial notice of the records in these proceedings," they clarified in the petition.

The petition further noted: "Petitioner says that this ruling was a gross error on the part of the Co-respondent Judge and highly prejudicial to the petitioner's case, and an unusual intrusion into the case by the trial judge whose role should be impartial and objective.

The trial judge erred when he intentionally equated a sworn affidavit to deposition by making reference to and citing Chapter 13 Section 13.3(4) of the Civil Procedure Law of Liberia.

The sworn Affidavit of Mr. Heine Van Neikerk simply confirms that he was the one who provided the emails and attachments, that he did so voluntarily and that he was a recipient of the e-mails and attachments.

Petitioner says that in any event, if the objectors felt that the emails were hacked or doctored, they had the burden to produce proof/evidence that the emails were hacked, and secondly, to secure the originals of the emails from the servers to show that the emails were doctored.

In the absence of these, the trial judge was in error in setting conditions for admission of the emails into evidence thereby shifting the burden to the Petitioner/Prosecution."

The petition reiterated that: "The mere allegation of a hacked emails, without more, especially where Prosecution/petitioner have shown multiple sources of the emails, including Heine Van Niekerk and a third source to which Van Niekerk gave the email, is insufficient to shift the burden of proving that the emails were not hacked."

"That Petitioner says that if Co-respondent Judge Gbeisay's ruling is not corrected the impression that it is the court that determines which witnesses to be produced and that although instruments had been identified, testified to and marked, the court can expunge relevant testimonies from the records and refuse to admit said instrument will run contrary to previous opinions of the Honourable Supreme Court regarding the admission of evidence."

The Ruling

Justice Banks ruled that there is no law in support of Judge Gbeisay's temporary marks on the evidence since all of the concerns raised regarding the authenticity of the evidence could have been handled at the time of the disposition of the case.

Justice Banks: "What is more amazing to us is that Judge Gbeisay seems to recognize the relevancy of the documents when he stated in his ruling that... 'the allegations made by Heines Van Neikerk as contained in the sworn affidavit sought to be marked is grave and touches the nerve-center or nucleus of this case be made from a distance' but notwithstanding of this recognition, the reserved the admission of the documents thereby preventing same from being tested as to its authenticity on grounds that he was doubtful of the information contained therein and that until and unless the maker appeared to testify to the documents, same would be expunged from the records."

Justice Banks wondered if Judge Gbeisay was deciding the case at this point since his concerns was to the truthfulness of the allegation contained in the affidavit rather than the relevance of the allegations to the disposition of the issue before him.

"What was the relevance of the temporary mark in the face of his doubt towards the documents? We hold therefore that Judge Gbeisay erred when he placed temporary marks on the documents, subject to the production of Heine van Neikerk by the State to testify to the said document," the ruling questioned rhetorically.

The Justice in Chambers noted that the documents in question were the work product and part of the report of the special investigative team set up by the government to investigate the allegations of the Global Witness Report and therefore such ruling would create a precedent that would make it virtually impossible for the state to prove or establish any case on the basis of an investigation conducted by State investigators and/or prosecutors since each person, object or document which were uncovered as a result of the investigation would be rendered meaningless and of no value.

"This prejudice was further shown by the trial judge's threat to imprison the state prosecutors if the witness was not produced. In the course of the arguments at the conference held with the Justice in Chambers, the co-respondent judge admitted that he had made such threat against the state prosecutors, but sought to excuse the said threat by the assertion that he was only attempting to instill fear in the prosecutors so they could take the matter more seriously and produce Mr. Heine van Niekerk.

"We do not and cannot take such threat lightly and clearly see it as demonstrating the bias and prejudice of the trial judge in his conduct of the case," Justice Banks noted in his opinion.

According to Bank, the threat to incarcerate members of the prosecution team was not the proper legal course and only served to heighten the seeming suspicion by the prosecution that he was biased in his handling of the case.

He further contended that ruling the evidence contained in the documents as hearsay based on the defendants' complaint was erroneous, noting that such a position would mean that any document unearthed by the State in the course any criminal investigation could never be admitted into evidence on the ground of hearsay since the author of the document uncovered by the State was not produced.

In this light, Justice Banks opined that Judge Gbeisay erred not to rescind his ruling when he was confronted by the prosecution.

The Associate Justice of the Supreme Court averred that the filing of the petition for the Writ of Certiorari by the prosecution cannot be said to constitute unreasonable delay and given the nature of nature of the ruling and timing ruling, when the trial was still ongoing, a reasonable basis existed to review and correct the ruling of the trial judge.

"Having said this, the Writ of Certiorari will lie to correct the ruling of Judge Gbeisay and same is hereby ordered issued," Justice Banks ordered.

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