Heated arguments as to whether or not e-mails and spreadsheets obtained by Global Witness (GW) were illegally acquired and therefore be excluded from evidences that are expected to be used against several defendants, including former House Speaker Alex Tyler, were yesterday entertained by Criminal Court ‘C’.
Judge Yamie Quiqui Gbeisay is expected to decide on the matter next Monday.
The defense team had argued that email exchanges and spreadsheets between Sherman and Sherman Incorporated and Sable Mining were hacked by the prosecution to create evidence against their clients, which they claimed was illegal.
They also alleged that the process used to obtain the emails and spreadsheets was in violation of the rights of privacy and against illegal search and seizure.
Defense lawyer Moses Paegar argued that the prosecution said Global Witness collected those documents from Heine Van Niekerk, a South African and one time executive of Sable Mining in that country, where they went to investigate the matter.
“Under our laws, evidence gathered in such manner cannot be used against any defendant in this country, because it was collected from a foreign country, and under a foreign jurisdiction,” Cllr. Paegar stated. “Why [did they] not allow Niekerk to come to Liberia to testify, if they were interested in using his statements as evidence?” he asked.
“They claimed that former President Charles Taylor had in his possession over one billion United States dollars, but up to the present they have failed to produce the evidence against him,” Paegar reminded the court.
“Therefore,” Paegar said, “the documents must be excluded from other evidences.”
In counter argument, the prosecution claimed that the emails and spreadsheets were outstanding evidences to prove the guilt of the defendants, stressing, “Any attempt to refuse marking and admission will cause the defendants to go free of their criminal conducts that had undermined the integrity and credibility of Liberia nationally and internationally.”
The GW report alleged that the defendants received over US$950,000 in bribes from then Sable’s Liberian lawyer Cllr. Varney Sherman to change the Public Procurement Concession Commission (PPCC) Act that would have enabled the officials to award Wologizi Mountain in Lofa County to Sable without any competitive bidding process.
Prosecution also argued that the exclusionary doctrine is only applicable when the evidence had been illegally obtained, specifically, evidence obtained as a result of torture, “but no such evidence was obtained from a person of personal knowledge growing out of privileged conversation and business transaction who voluntarily gave such emails to prosecutors.”
“In this case,” the prosecutor said, “we obtained said emails and other business records from a recipient and participant in the email communications who transacted with co-defendant Sherman.”
The confusion erupted when prosecution’s first witness and Liberia Anti-Corruption Commission investigator Marc N. Kollie testified that they gathered credible information from emails and spreadsheets obtained from GW’s private investigator Paul Sullivan and Heine Van Niekerk, a senior staff of Sable Mining, the UK mining company, when they met during their investigation in that country.
“The email communication was documentary evidence obtained by the investigators as a means of the regular course of business transaction among the defendants,” prosecution’s resistance alleged, adding “it was Heine Van Niekerk who gave the emails subject to these proceedings to the investigators.”
Kollie said Niekerk also gave emails and other documents to private investigator Sullivan, “including business records of Liberia Iron Ore Investment,” a subsidiary of Sable Mining.
“Niekerk said he voluntarily turned over those documents to Sullivan to form cogent part of our resistance,” the prosecution said.
The documents alleged Sherman exchanged emails with the other co-defendants, including Sable Mining, to change the law and subsequently award the Wologizi Mountain to Sable Mining.