Following months of serious legal disagreement to substantiate whether the e-mails and spreadsheets were illegally acquired by the Special Presidential Taskforce prosecuting several present and past public officials including Senator Varney Sherman of Grand Cape Mount County, based on the Global Witness (GW) alleged US$950,000 bribery report, the Supreme Court has dispelled any suggestions of hacking.
The Supreme Court reached that decision on Wednesday, August 22, when they reversed the Criminal Court ‘C’ Judge Yamie Quiqui Gbeisay’s acceptance of the defense team’s argument that the document must be marked temporarily because the 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.
The GW report had alleged that the defendants received over US$950,000 in bribes through Sable’s Liberian lawyer, Cllr. Varney Sherman, to alter the Public Procurement Concession Commission (PPCC) law that would have enabled the officials to award Wologizi Mountain in Lofa County to Sable without any competitive bidding process.
Besides Sherman, other defendants included former House Speaker Alex Tyler, a Nigerian national Chris Onanuga, former National Investment Commission boss Richard Tolbert, Sen. Morris Saytumah of Bomi County, Willie Belleh, former PPCC chair and Eugene Shannon, former minister of Lands, Mines and Energy (MLME) and former LMLE deputy minister, E.C.B. Jones.
Reversing Judge Gbeisay’s judgment, the High Court, speaking through Chief Justice Francis Saye Korkpor, declared that since the defendants alleged the email, the spreadsheets and other documentary evidences objected to were hacked, they had the burden to prove otherwise. “It was therefore, an error by the trial judge to have required the state to prove that the documents were not hacked.”
Korkpor said, the law does not provide what he considered as “temporary making” of the documentary evidences as was done by Judge Gbeisay, stressing: “after the prosecution’s witness testified to the documents and were subsequently marked and confirmed by the Court, same should be submitted to the jury or received by the judge sitting as a bench trial to determine its authenticity and materiality.”
Shortly, afterward, Justice Korkpor instructed his Clerk to mandate the judge now presiding over the Criminal Court ‘C’ to resume jurisdiction over the case and placed permanent marks on those documents objected to, “so that their authenticity and materiality will be determined at the appropriate time.”
Immediately, when the Supreme Court reversed Gbeisay’s decision Cllr. Fonati Koffa who at the time chaired the taskforce and now serves as Representative of District #2 in Grand Kru County, meanwhile, described the judgment as “vindication”.
“We feel vindicated that prosecution was just right. We are relieved because the High Court has spoken and has agreed with us that we were on the right path.”
Before that, the Koffa-led taskforce 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.”
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.”
It may be recalled that 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.