Monrovia – The defendants in the Sable Mining bribery trial were craving that the Court was going to dismiss the admission into evidence series of emails being relied upon by the prosecution as key evidence.
Report by Lennart Dodoo – [email protected]
“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 rom 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 based on a leaked e-mails.”
But the court left their hope in the balance – much to the advantage of the prosecution – temporarily admitting into evidence emails and spreadsheets which the defendants claim were hacked from their emails and might have been tampered with.
However, the evidence was accepted by the court on one condition – that the key material witness, Heines Van Niekerk who allegedly exchanged emails with Co-Defendant Varney Sherman and apparently leaked the emails to Global Witness testifies in court and be crosses examined.
In his ruling, the judge of Criminal Court “C”, Yamie Quiqui Gbeisay, Sr. said, “It is but fair that Mr. Heines 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 H. Varney Sherman be present in Court to personally testify to the documents so that he may be crossed examined.
The testimony is germane to this case, especially considering the fact that Global Witness’ Report was allegedly based on leaked e-mails. The court itself needs to clear its doubt with reference to the leaked e-mails and the e-mails allegedly given by Heines Van Niekerk to Paul O’Solluvan and the State Prosecutors. The prime duty of the court is to search for the truth and there is only one truth in this case.”
Judge Gbeisay noted that the allegations made by Niekerk as contained in the sworn affidavit sought to be marked (as exhibit) is “grave and touches the nerve-center of this case to be made from a distance.”
While the judge temporarily admitted the emails and spreadsheets into evidence, he warned that if the prosecution rests its side of the case without parading Niekerk, the testimony of Niekerk contained in the sworn affidavit will be considered unduly and unfairly prejudicial to the Defendants’ interest; “this court will refuse admission of the emails and spreadsheets and will expunge rom the records of the trial all information regarding the emails and spreadsheets,” Judge Gbeisay averred.
In their objection filed before the court on March 13, 2017, the defendants including Morris Saytumah, Varney G. Sherman, among others, requested the court to ignore the admission of ‘’all emails and spreadsheets’’ relating to the case, adding that said documents were obtained as a result of ‘hacking.’
On another hand, Co-Defendant Tyler objected to the emails and spreadsheets on grounds that alleged conversation between Klaus Piperk and Defendant Sherman about him were ‘’products of hearsay.” Defendant Tyler’s request was granted in part as the said email was however marked by the court.
But the State or Respondent in their resistance filed on March 14th, 2017 maintained that the spreadsheets and emails were not obtained illegally or through ‘hacking’ as alleged by the Defendants (Objectors) while challenging the Objectors to prove that the emails were obtained by means of ‘hacking.’
“Prosecution further informed and impressed on the court that the documents were obtained through normal course of business; in that, the emails, spreadsheets and other business records were given to the state investigators by Heines Van Niekerk who was the recipient of the e-mails and the spreadsheets attached thereto from Co-Defendant H. Varney G. Sherman and that it was the same Heines Van Niekerk who gave copy of the emails to Paul O’Sullivan.
“Respondent/Prosecution maintained further that the e-mails, spreadsheets and other Liberia Business records having been given them in regular course of business, it falls within the preview of exclusive evidence and therefore, it is admissible.
In support of prosecution’ argument, it attached a Notarized Affidavit from Heines Van Niekerk to the effect that e-mails and spreadsheets were genuine emails and spreadsheets to the best of his knowledge and that they were given to the prosecutors upon request by him and that he admitted that he further authorized Paul O’Sullivan to upload from his computer for preservation of the above evidence. The Affidavit was signed and notarized on the 7th day of March A.D. 2017 in South Africa,” a segment of the Prosecution’ resistance stated.
Following the submission of the Prosecution’ resistance, the court entertained arguments from both parties before rendering a judgment on the issues raised about the admissibility of the emails into evidence in the trial.
In his ruling, Judge Gbeisay stated that on the issue as to whether the emails were ‘hacked or not,’ the prosecutors who introduced the emails and spreadsheets on the other hand, denied that it hacked the documents while insisting that said emails were voluntarily delivered to its investigators by Heines Van Niekerk who was an executive of Sable Mining Africa with whom, according to the State, Co-Defendant Cllr. Varney Sherman had series of communications in his capacity as legal Counsel for Sable Mining Africa.
“The question, then, is, does Heines Van Niekerk’s testimony, which is notarized by the Commissioner of Oaths, Sandton, South Africa, meet the legal standard in this jurisdiction to be considered authentic and genuine? Generally, when a communication is placed in mail box, it remains the property of the sender until it is received by the addressee.
The emails and spreadsheets in question, if they were addressed to Heines Van Niekerk, became the properties of Heines Van Niekerk upon receipt of them.
In the mind of this court, the burden of prove shifts to the Objectors/Defendants to prove to the contrary that the emails and spreadsheets were not provided by Heines Van Niekerk or that Heines Van Niekerk was not the recipient of any emails from Defendant Cllr. H. Varney G. Sherman,” he among other things, said.
Meanwhile, the Prosecutors’ First Witness in Person of Mark Kollie ended his testimony on the direct Monday.
In his direct testimony, Witness Kollie confirmed all of the emails and business records that were presented to him by the State thus corroborating his Testimony In Chief with the said documents presented before the court linking all of the defendants to the crimes levied against them.
The trial continues.