By Abednego Davis
Associate Justice Philip A. Z. Banks yesterday reversed Criminal Court ‘C’ Judge Yamie Quiqui Gbeisay’s judgment that denied marking permanent the alleged Global Witness emails and spreadsheets as evidence, describing it as an “error.”
Judge Gbeisay, who was then presiding over the bribery case involving Senator Varney Sherman of Grand Cape Mount County and several present and past government officials, denied marking the evidences permanent unless Mr. Heine van Niekerk, a South African and executive of Sable Mining, a UK mining company, believed to be the author of the documents, comes to Liberia to testify about their authenticity.
Van Niekerk’s document allegedly outlined how Sherman, who was Sable’s Liberian lawyer, received US$950,000 from the company to be used as bribes and distributed it among the defendants that included former House Speaker Alex Tyler.
The intent of the money was to allegedly influence the public officials to change a portion of the Public Procurement Concession Commission (PPCC) Act that was then before lawmakers, so as to award the mining company the concession right to the Wologizi Mountain in Lofa County without going through any competitive bidding process.
“The allegations contained in a sworn affidavit sought to be marked as grave and it touches the nerve center of this case from a distance,” Gbeisay’s decision said.
Reversing Gbeisay’s judgment yesterday, Justice Banks said he should have treated the emails and spreadsheets “at a level at which he believes they may have been worthy or whether they are to be given any worthiness or credence or whether they should be accorded any credibility from all of the surrounding circumstances.”
He said Gbeisay cannot exclude them from the report on the grounds that they are hearsay.
Gbeisay’s judgment that he was doubtful of the information contained in the documents until the maker appeared to testify to its authenticity was erroneous, Justice Banks said.
“We wonder if Judge Gbeisay was deciding the case at this point since his concern was to the truthfulness of the allegation contained in the affidavit rather than the relevance of such allegation to the disposition of the issue before him that was the bribery case,” he said.
“In spite of the fact that members of the team who conducted the investigation were produced and testified to the documents, it was a clear error on the part of the judge, because it was legal and prudent for Gbeisay to have marked the emails and spreadsheet permanently,” Justice Banks declared.
Moreover, the justice explained “he did not see that the delivery of the documents to the state by a person who was legally in possession of said documents can be a violation of any of the constitutional rights of the defendants.”
“The state was authorized to do whatsoever they wanted to do with such documents as they pleased, including rights to privacy or against searches and seizures, and the release of such document to its investigation team did not require an order of the court to make the transfer illegal,” Banks emphasized.
Before yesterday’s decision, the prosecution had argued that emails and spreadsheets were the products and part of the report of its Special Investigation Team set up by the government to investigate the allegations made in the Global Witness report.
They claimed that the team collected the testimony from van Niekerk in his native South Africa, where he produced the documents on the basis of immunity from prosecution.