Monrovia – The landmark trial is still in its embryonic stage but prosecution lawyers are already pointing out what they consider as series of errors on the part of the judge presiding over the case, calling on him to rescind a ruling he had made on March 20, 2017.
Report by Lennart Dodoo – [email protected]
“That Your Honor inadvertent use of this erroneous legal standard shifts the burden of proof on the defendants and therefore compelled the appearance of a witness whose appearance should be solely within the purview of the prosecution and whose non-appearance may be weighed by the trier of fact when considering what weight to give any evidence adduced from such witness” – Prosecution’s Motion to Rescind
Judge Yarmie Q. Gbeisay, Sr. a week ago ruled on a defense motion requesting the court to reject emails and spreadsheets presented by the prosecution lawyers as pieces of evidence being relied upon to prosecute them. They argued that the emails and spreadsheets were illegally obtained by hacking and have been tampered with.
The emails and spreadsheets are the documents relied upon by Global Witness to expose what is now the biggest bribery scandal known in Liberia’s history.
It is believed that Mr. Hienes Van Niekerk an executive of Sable Mining who allegedly exchanged emails with Co-Defendant Varney Sherman leaked the emails to Global Witness.
In his ruling in the defendants’ motion and the prosecution’s resistance thereof, Judge Gbeisay accepted to admit the emails and spreadsheets into evidence on condition that Van Niekerk will come to testify to them before the end of the trial.
Judge Gbeisay ruled: “It is but fair that Mr. Hienes Van Niekerk, prosecution’s very material witness, who claimed that he was the recipient of the series of e-mails and spreadsheets from Co-Defendant Varney Sherman be present in Court to personally testify to the documents so that he may be cross-examined.
The testimony is germane to this case, especially, considering the fact that Global Witness’ Report was allegedly based on leaked e-mails.”
But the unpleased prosecution believes the ruling does not run parallel with laws and centuries of precedence.
The prosecution argued: “Your Honor inadvertently ruled that Heine van Niekerk must appear before the Court on grounds of his sworn affidavit that he submitted to the prosecution emails and spreadsheets that were used by the investigators.
Movant submits that there was no challenge as to whether or not Heine Van Niekerk executed the affidavit: the issue by the Objectors in argument was the non-availability of the apostil; for the Court to demand the appearance of Heine van Niekerk as a condition precedent to accepting the emails and spreadsheets as evidential materials, although identified and testified to by prosecution witnesses and marked by Court is an attempt to overlook the laws controlling markings and admissions of evidential materials. Movant prays that Your Honor must rescind that portion of Your ruling.”
The prosecution referenced the judge to his statement in which he said, “This Court is of the considered opinion that every precaution should be taken to ensure that the defendants have maximum opportunity to establish and prove their innocence…”, arguing that “this standard inadvertently as it is contrary to law, contrary to centuries of criminal jurisprudence adopted by this jurisdiction and enshrined in our constitution that the defendants are innocent until proven guilty.”
They further argued that the judge’s “erroneous” of this standard shifts the burden of proof on the defendants and therefore compelled the appearance of a witness whose appearance should be solely within the purview of the prosecution and whose non-appearance may be weighed by the trier of fact when considering what weight to give any evidence adduced from such witness.
Judge Gbeisay’s assertion in his ruling that “the Court, however, agrees with Co-defendant Alex Tyler counsel contention that the alleged conversation between Co-Defendant Varney Sherman and Klaus Piprek with reference to Co-defendant Alex Tyler is a hearsay evidence and inadmissible, but the Court says same will be marked and may be admitted not for its truthfulness or probative value, but for the mere fact that such statement was made when proven and that said statement will not be used to determine the guilt of Co-defendant Alex Tyler.”
Was considered by the prosecutors as inadvertent and premature, taking into consideration it constitutes a prejudgment of the case as against Co-defendant Alex Tyler.
They further see as erroneous the judge’s assertion that Heine Van Niekerk made grave allegations against the Defendants, noting that Heine only confirmed that the email exchanges he had with Varney Sherman were delivered by him to the Prosecution and Paul O’Sullivan, and not that he accused the Defendants of any crimes.
“The doctrine of facing an accuser is inapplicable under the circumstances, and Movant prays that Your Honour will rescind and modify Your Honour’s ruling consistent with trial practice and procedures,” they asserted.