Justice Banks Postpones GW Ruling

6
2009
Associate Justice Philip A.Z. Banks

Associate Justice Philip A.Z. Banks yesterday postponed his ruling on whether or not to review Judge Yamie Quiqui Gbeisay’s decision not to mark the Global Witness (GW) leaked documentary evidences as permanent.

After listening to legal arguments from both the defense and the prosecution on the matter, Justice Banks has decided to postpone his ruling for one week.

Gbeisay, then judge of Criminal Court ‘C,’ had earlier refused to permanently mark prosecution’s major documentary evidences contained in an alleged e-mail and spreadsheet obtained from Heine van Niekerk and Paul O. Sulovine (both in South Africa), who are believed to have authored the documents.

Gbeisay also compelled state lawyers to ensure that Niekerk was brought to the country to face the defense team to testify and be cross examined.

That judgment did not go down well with the prosecution who immediately sought Justice Banks’ intervention to review Gbeisay’s action, arguing that the judge was in error.

In the argument yesterday, a member of the government’s lawyers, Cllr. Daku Mulbah, said that the e-mails and spreadsheets were obtained from van Niekerk and Sulovine, who they had given immunity from prosecution.

“Those documents were accompanied  by an affidavit and notary that made them legal and qualified as our evidences, even in the absence of the authors coming to Liberia to testify about them,” Mulbah defended his argument.

Daku, who is also County Attorney for Montserrado, argued that Judge Gbeisay was in error by compelling them to only produce van Niekerk, and not bringing along Sulovine.

Prosecution argued that the e-mails and spreadsheets were voluntarily given to the government investigative team by Heine van Niekerk, Sable Mining’s West Africa director with whom co-defendant Sherman had the series of e-mail exchanges.

The document, they alleged, contained e-mails between defendant Varney Sherman and Klaus Piprik with regards to co-defendant Alex Tyler demanding a payment of US$250,000.

In his counterargument, a member of the defense team, Cllr. Cyril Jones, said the e-mails and spreadsheets were obtained illegally, for which van Niekerk and Sulovine should come to Liberia to testify.

Cllr. Jones also claimed that the affidavit was illegally obtained by the prosecution.

Jones explained that to obtain an affidavit outside of Liberia, especially in South Africa, they should have taken the affidavit to the higher court in that country to authenticate it, a legal requirement which he claims the prosecution failed to follow.

Cllr. Jones further explained that to use such an affidavit in the country, prosecution should have first sent the document to the Ministry of Justice to verify it and to subsequently turn it over to the Foreign Affairs Ministry for authentication.

“This is the legal requirement under our jurisdiction and they failed to do so, making the affidavit illegal,” Jones emphasized.

These are some of the arguments Justice Banks is expected to make a decision on next Monday.

Global Witness report claims that Sable Mining, a UK based mining company, gave its Liberian lawyer Cllr. Sherman over US$950,000 to have certain government officials at the time, including ex-Speaker J. Alex Tyler, to change the Public Procurement Concession Commission (PPCC) Law so that the Wologizi iron ore reserves would be given to the company without submitting it to a competitive bidding process.

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6 COMMENTS

  1. Liberia is a strange Country and some legal minds are getting even more creative with manipulative arguments. Interestingly, lawyers defending the criminal case against Sherman and others are not arguing or disputing merits of the evidence produced by the prosecution thus far, but how the evidence was obtained. This is laughable at best. These legal maneuverings are only intended to delay this case in an attempt to solidify their bribery games. This is a criminal case and so, how evidence was obtained should not be a question. Defendants, in this case, should either deny information contained in those emails and not the process in which they were obtained. Additionally, Judge Gbeisay does not legally have the option of admitting these evidence partially. The law is that they must be admitted in whole or rejected if they do not meet the criteria for admission into evidence. That is how I see it.

    • T.L; let’s face It. The Email evidence must be denied. It sends the wrong message. How a Judge decides a case, may very well reflect on the entire “LEGAL SYSTEM”. To accept an Email; without the key witness(s) appearance before the Judge, implies that anyone doesn’t have appear before a Judge; to TESTIFY. OK, just write the Judge a letter or send an Email… I believe, his Hon. Judge Gbeisey made the right decision; GAVE THE PROSECUTIONS AMPLE TIME, TO PRODUCE THEIR KEY WITNESS, Hans Van Niekerk. The Defense has every right to request the presence of the PROSECUTIONS’S key witness; to have him/her testify before the Judge and be cross-examine by the Defense Lawyer(s).

    • “This is a criminal case and so, how evidence was obtained should not be a question.” Oh my! The fact that this is a criminal case is even more reason why the manner in which the evidence was obtained should be a MAJOR issue. There are rules of evidence that must be adhered to – especially in criminal cases where one is at risk of losing his/her liberty. One cannot use the equitable power of the court to accomplish an injustice. If any evidence was obtained illegally, it MUST be suppressed.

      Moreover, any writing, such as emails, presented before a court must be authenticated before it is admitted into evidence. Can you imagine what the world would be like if anyone could just take a piece of paper into court saying it is an email and expect the court to accept it as true? That email must be authenticated either directly, through testimony of the sender or receiver of the email, or indirectly, through distinctive characteristics of the email.

      Lastly, a judge can certainly admit something (the email here) into evidence on a conditional basis until the existence of a separate fact is proven. So the judge in this case did nothing wrong by conditionally admitting the email into evidence until it had been authenticated. In the event that the email is not authenticated, the judge can suppress it at that point.

  2. If the judge had rule without cross examining the evidence the defence lawyer would have file motion for retrial on grounds of faulty evidence.hold your peacr

  3. We don’t care about the rules of evidence until faced with a kangaroo court, considering the heavy – handed manner this trial was taking. Some of us have seen a lot since our days as a rookie police investigator in 1967. Indeed, we’ve witnessed many political investigations, political trials, political convictions, political murders, and know of families who still carry the swords of endless vengeance: it tears a nation asunder.

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