A third prosecution witness in the ongoing trial of Azeez Fashola popularly known as Naira Marley has told Justice Nicholas Oweibo of the Federal High Court sitting in Lagos how electronic tools used for accessing compromised credit card information was found on the laptop of the defendant.
The witness, Dein Whyte, who is the Chief Detective Officer and Head of the Cybercrime Section of the Economic and Financial Crimes Commission (EFCC), continued his testimony before the court while being led in evidence by the prosecuting counsel, Rotimi Oyedepo.
Whyte said “From my findings, it was clearly established that the defendant through his phone had in his possession credit card details that did not belong to him. That he shared this credit card information with another person and it was also discovered that a fraud report had been generated for the same credit card stating that it had been used fraudulently.
‘Investigation also revealed that the defendant had on his laptop which is registered to him, and recovered from him, electronic tools that are specifically used for accessing compromised credit card information as well as other electronic tools that are used to disguise both the identity and location of anybody accessing compromised credit cards in real time on the internet. Those were my findings”.
When he was asked by Oyedepo the role played by him and his team before Exhibit E (the forensic analysis) was produced, he answered saying, “As is procedural in investigation, where recovered digital evidences are of direct importance and value evidentially to a case, the procedure demands of an investigator or investigating team, where such evidences are recovered, to make a request to the Digital Forensic and Crime Laboratory Services Department to carry out forensic analysis of the content of these devices.
“In doing so, the investigator or investigating team, will include specifics to guide the forensic as to what is of utmost importance to the investigation. These specifics guide the Forensic examiner in narrowing down the analysis and search, extraction in these devices to areas of utmost importance as specified by the investigator or investigating team. On the request form, there is a section where the investigator may state these specifics. Examples might be SMS, Mails, pictures and websites”, Whyte said.
While analyzing the forensics report, Whyte revealed that the defendant has running on his computer, a VPN called IP Varnish (a tool used to disguise identity and location of the user).
According to him, “In relation to the contents found on the NOTES (a software application) on the devices of the defendant, wherein counterfeit card number was found alongside the details of the cardholder and an IP address, It would suggest that the only reason the possessor of this information will need an IP address attached to it, would be to satisfy the location specifics for consumption of transaction for merchants who require cards to be used only within countries and locations recognized by them.
“If these cards were to be used on the internet from Nigeria, the browser that is stated here will attribute in real time the location of the user to the IP address. And If Nigeria is not the compliant location of the card issuer, the transaction will be blocked. But if this card when being used passes through a VPN and assigned with the IP address to conform with the compliant location of the card issuer, the Nigerian Location will be disguised and substituted to be Cardiff, thereby giving the merchant the impression that the card is being used from Cardiff or otherwise the compliant location” he testified.
Counsel to the defendant, Senior Advocate of Nigeria, Olalekan raised objections to the evidence of witness.
Ojo said “PW3 is attempting to give evidence on what must have operated on the mind of the user, as to why certain things were saved on the NOTE. The basis of my humble suggestion is that this witness is not competent to give evidence of the state of mind of the user of laptop without the existence of evidence before your lordship that the particular state of mind exists.
He also added, “I wish to rely on the Provisions of S11(2) of Evidence Act in support of my objection. An investigating officer is not competent to ascribe a state of mind to any defendant. Whether the state of mind exists or not is a matter for judicial determination. PW3, though an investigator is not a psychologist but a forensic officer who cannot give evidence on the state of mind of a defendant”, he submitted.
Responding to the objection raised by the defence, Oyedepo retorted that the objection raised by the SAN missed its target. He said “Firstly, the question being answered by the witness is to connect (if any), the relationship between Pages 8 & 27 of Exhibit E (the forensic analysis). The witness is not only competent to give that evidence, but in the circumstance of this case, is in the best position to bring life to it, by explaining the relevance of the report of the forensic analysis that he sought for and obtained.
“I agree that the state of mind of the defendant is for the court to determine, however it is also the power of the court to rely on the facts and evidence supplied which is what PW3 is doing.
“Finally, the witness has not used the word intention. The SAN is mainly imputing that the word “suggests” as used by PW3 is him interpreting that there was an intention by the defendant. He misconstrued the choice of words of the witness; I hereby urge the court to discountenance the submissions of the defense, Oyedepo concluded.
In a short ruling, the Judge overruled the objection, saying that “the witness can give evidence on the reason he believes the defendant had those documents in his possession”.
Justice Oweibo had earlier dismissed the defendant’s objections to the forensic evidence presented by the witness at a previous proceeding.
In dismissing the objection, the court held that “It is the duty of the law enforcement agencies or police charging a person to court to investigate if the defendant committed the crime or not. The investigator must be able to link the defendant to the commission of the crime. The prosecutor must have made up his mind as to the involvement of the defendant before bringing the case to court. I do not agree the prosecution has declared the defendant guilty”, the Judge ruled.
Justice Oweibo has adjourned to September 26 & 30 2022 for continuation of the trial.
Background
On May 20, 2019, the anti-graft agency had arraigned the artiste Naira Marley, who sang the popular song: “Am I a Yahoo Boy”, before the Federal High Court, Lagos.
A large crowd of his supporters turned up to witness his arraignment on an 11-count charge bordering on money laundering and Internet fraud.
The anti-graft agency said the offences were committed on different dates between Nov. 26, 2018 and Dec.11, 2018, as well as May 10, 2019.
The commission alleged that Naira Marley and his accomplices conspired to use different Access Bank ATM cards to defraud their victims.
The EFCC also said that the defendant possessed and used counterfeit credit cards belonging to different people, with intent to defraud others.
The alleged offences are said to contravene the provisions of Sections 1 23 (1) (b), 27 (1) and 33(9) of Cyber Crime (Prohibition) Prevention Act, 2015.
Before Justice Nicholas Oweibo, Naira Marley pleaded not guilty.
The court granted him bail in the sum of two million naira, with two sureties in like sum.
