Monrovia – Justice in Chambers, Philip A. Z. Banks, III, has issued a stay order on the ongoing Sable Mining bribery trial based on a petition for a Writ of Certiorari by the prosecutors.
Report by Lennart Dodoo – [email protected]
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.
The writ was filed for by the prosecutors on Monday due to Judge Yamie Gbeisay refusal to rescind several rulings which the prosecutors believed were erroneous.
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, would be the 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 spread sheets 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 spread sheets 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 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 confirm 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.”
While Justice Banks is yet to hear from both sides to decide whether indeed the Judge Gbeisay’s ruling was erroneous, he has called for a conference with the prosecution, Judge Gbeisay and the defendants and has also issued a stay order on the trial.
“By the directives of His Honor Philip A. Z. Banks, III, Associate Justice presiding in Chambers, you are hereby cited to a conference with His honor o Thursday, April 13, 2017 at the hour of 3:30 p.m. in connection to the above mentioned case.
“Meanwhile, you are hereby ordered to stay all further action on this matter, pending the outcome of the conference,” Sam Mamulu, Actg. Clerk of the Supreme Court.