8.1 This insurance attaches from the time the goods leave the warehouse or place of storage at the place named herein for the commencement of the transit, continues during the ordinary course of transit …

…

11.1 In order to recover under this insurance the Assured must have an insurable interest in the subject-matter insured at the time of the loss.

[emphasis added]

FCA Kigali, as per incoterms 2010, customs cleared.

My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter’s friend, Dr. Watson: “How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.

The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

[emphasis added in italics and bold italics]

The logical process of a swap would require the following actions:

1. Remove lids

2. Empty out contents

3. Fill with material

4. Reseal lids

5. Fill and paint lids

6. Reposition drums

In addition to the above there are logistics to consider, specifically the space required and the means of transporting the tin concentrate out of the location and the replacement substance into the location.

The location for the swap to occur in would require an area large enough to discharge the tin concentrate into, and an area to store the substitute cargo ready for stuffing into the drums (assuming it was undertaken at the same location). The tin concentrate would need to be carried away at some point – presumably by the same method that the substitute cargo had been brought in.

In order to swap the tin concentrate for the iron rich substance a total of 18,000 kgs (in the case of shipment 6 as an example) of the iron rich substance would have been required. The iron rich material weighs 18 tonnes per shipment and is equivalent to approximately 6.25 to 7 cubic metres.

…

In order to carry such a quantity of substitute material in one load then a sizeable vehicle is required – an example of such a vehicle is provided below:

A vehicle would require maneuvering [sic] space and, assuming it carried away the tin after the swap, a place to park without causing suspicion.

As has been previously stated, the area of Excellent Mining’s loading facility is located in a residential area of Kigali and the road access is limited. Indeed, we note that the container transport lorries that took the laden drums to the Bollore bonded facility were unable to access the facility directly and the drums had to be moved by forklift to a more open area.

We have been presented with two documents named Excellent Mining Valuation Reports 1 and 2. The photographs of access points, the configuration of buildings behind the exterior boundaries and the types of buildings contained therein does not make it appear plausible that a large lorry carrying 18 tonnes of iron ore could access, deposit and then load 18 tonnes of tin concentrate at all.

There are many ways for the lids of the drum to be removed, using power tools or manually. The specific tool for such an activity is called a drum de-header and come in powered or manual versions. The cut is clean and there is minimal deformation, making the task of resealing the lids of the drums easier.

Once the tops had been removed from the drums then there is the question of removing the tin. It’s conceivable that 2 or 3 strong men could tip a loaded drum over but that runs the risk of deforming the drum itself. A powered vehicle would assist greatly with speed and precision and would be needed to return the drums to their previous location in any event. Indeed, this element of the operation presents major difficulties without powered assistance.

Loading of the substitute cargo could be achieved with shovels and several willing workers.

Resealing of the drums could take some time and would entail some noise, bright lights and smells. The application of the thick paint would require that the paint is given time to dry prior to further examination by quality / quantity officials and may therefore be best applied at time as far distant from the next inspection as possible.

The re-stacking of the drums in their original positions would need powered assistance.

The stolen tin concentrate would need to be loaded onto powered transport for extraction to its next destination.

In summary, in order to act expeditiously, the site of the swap would require a relatively large area where off-loaded concentrate and the swap cargo could be stored at the same time. The site would also require easy access for a relatively large vehicle and an area for it to wait (assuming it carried away the tin concentrate in one go and immediately it had been offloaded). Our understanding of Excellent Mining’s site is that it is a relatively small consolidation facility and the tin concentrate is received in bags.

Powered load-handling plant (such as a fork-lift) would be required to quickly and carefully up-end the drums and to replace in-situ the re-filled drums.

The above actions would cause noise, smell, dust and bright lights. It would also involve several participants and take considerable time to achieve. We have received no indication of such events unfolding at Excellent Mining’s premises.

Court: … You came to the conclusion that Excellent Mining is complicit in this theft, is because there are quite a number of people there, and it is quite unimaginable to you that all this can be done without them -- without Excellent Mining knowing it.

A: Exactly, Your Honour.

…

Court: I’m going into another assumption. Your assumption is premised on the fact that this theft is difficult to go away unnoticed, unless you are complicit. That is --

A:  Yes.

Court:  -- Excellent Mining.

A:  Yes, your Honour.

Court:  Now, just leave your theory on the side.

A:  Okay.

Court: Okay? So the assumption is that Excellent Mining wasn't part of this so-called conspiracy to steal, okay?

A:  Okay, your Honour.

Court: Now, if I changed this material fact to say that Excellent Mining is not part of this conspiracy, will it affect your theory? Your theory that theft took place within Excellent Mining?

Maybe I give you additional facts which I'm not quite sure whether you are aware of or not, because it came out in the course of the trial.

A:  Yes, please.

Court: The gentleman that you spoke to, Mr Theodore, is actually the director of the mine, of Excellent Mining. And he and his family actually stay within the compound at Excellent Mining.

A:  Okay.

Court:  Are you aware of that?

A:  I wasn't aware of it, this information.

Court:  You were not aware of it?

A: No, I wasn't aware that he lived in the compound.

Court:  Yeah. That's what he told us.

A:  Okay.

Court: That's why I say, if the assumption is that the Excellent Mining is not complicit in this theft, will your theory still hold that the theft took place at Excellent Mining?

A:  No, your Honour. On that point --

Court:  It's not possible, right?

A:  It's not possible, correct.

[emphasis added]

Furthermore, photographs in the provided Alex Stewart report for the stuffing of the container CMAU4868686 at Excellent Mining and those taken by Bureau Veritas for the opening of the same container in Dar Es Salaam show that the seals on the container had not been broken at Bollorè. The available photographs for the 8th shipment show that the red freight seal no. 00530031, the RRA Custom seal no. B683037 and the Precintia seal no. 047844 were all present at Excellent Mining (see Appendix 29) and at the port of Dar Es Salaam (see Appendix 22). Therefore, this container had not been opened at Bollorè in Kigali.

[emphasis in original removed; emphasis added]

The fact that customs seals are not tampered with does not prove that the container has not been accessed. Theft from containers is rife and there are many ways that this can be achieved by taking off customs seals without leaving any apparent marks, taking [out] bolts holding the securing flanges for the customs seals to go into and opening the door without touching the seals themselves or levering open the retaining plate on the right hand door that overlaps the left hand door thereby allowing that door to fully open.

Court: You look at the second sentence which starts with: "Theft from containers is rife and there are many ways that this can be achieved by taking off the customs seals without leaving any apparent marks ..."

I don't understand what is this. What do you mean by "by taking off the customs seals without leaving and apparent marks”?

A: Yes, there are different types of seals and each can be attacked in a different way in order to access or open the seal leaving minimal or no evidence.

Court: In our case, the 40-foot container has got three seals, right?

A:  Correct.

Court:  Before it left Excellent Mining to Dar es Salaam.

A:  Correct, yes.

Court: So are you saying that the three seals can be removed and re-attached back without apparent marks?

A: Some of them can. The bolt ones are more difficult but certainly the ones with the wire they're relatively easy. You put down a little metal implement and manoeuvre it and then pull it out, which shouldn't leave anything behind. The bolt ones either can be, I suppose, cut and then stuck back together again. You can -- there are instances, I understand, where you can put acid down between the lug and the bolts and corrode the sealing ring inside and then pull it off. And instances where you clamp hold of the bolt end so it doesn't move and then attach a drill with a large chuck to the lug at the bottom and spin it, and then eventually -- whilst pulling, and then eventually it comes away.

Court: What you're telling us is that the three different seals on the 40-foot container can actually be removed and re-attached without any apparent suspicion that it was tampered with, is that what you're trying to tell us?

A: I'm trying to tell you that, yes, but close inspection of the bolt one will, in most instances, show some tampering.

Court:  Sorry, come again?

A: The bolt ones are more difficult to undo without evidence of tampering. If you look closely, in most instances, there should be evidence of tampering with the bolt one.

Court: In other words, the other two seals are relatively easy, that's what you're saying?

A:  They are easier, yes.

Court:  Yes. So that the bolt seal is more difficult?

A:  Yes.

Court: But is it possible or is it impossible to be tampered with, without suspicion that it has been tempered with?

A: It is possible to tamper with them but close inspection should reveal it by a competent surveyor or somebody taking the time to have a look.

Court: So what does that mean? It is not possible to be tampered with, is that what you're trying to say?

A: I think it is possible to be tampered with.

Court: Then you give another example in that same sentence of how the drums can be removed from the container and you said -- I believe it's "out" not "our":

"... taking out bolts holding the securing flanges for the custom seals to go into and opening the door without touching the seals themselves or levering open the retaining plate on the right hand door that overlaps the left hand door thereby allowing that door to fully open."

So this another method you're suggesting that a container, that the contents in the container can be tampered with. Is that what you're trying to tell us, by not touching the seal but doing something to the doors of the container.

A: Indeed, yes. If you look at the container doors, if you recall the photos with the one door open, the one door closed, the door that was open is not closed first, so if you look at it that's the left-hand door, and then the right hand door comes over and there is a retaining plate that overlaps the already closed left-hand door. And then the locking mechanism on the right is the one that has the seals put on it. So what you could do is get a jimmy, for want of a better -- a crowbar, and bend back the sealing plates, which would allow the left-hand door to open, but that would, for sure, leave damage to the retaining plate’s coating because it would have to be bent maybe sort of 30 or 90 degrees. Is that --

Court: Below that, can you scroll down to the next page, 75. Yes, thank you. You give certain references here.

A: Mm-hm.

Court: Can I assume these are reference to show that the container can be tampered without raising suspicions that it has been tampered with?

A: Yes, your Honour. There are sort of YouTube videos that show means by which these different seals can be opened without leaving much of a trace.

[emphasis added]

A: Based on my surveyors' physical inspection of the drums, and based on my own observation of the photographs depicting all the drums from the time it left Excellent Mining until the time it arrived at the consignee's premises, MSC in Penang, I saw no evidence that the drums were subjected to any form of tampering.

…

Q: You were asked by the judge, okay, about what you were investigating, okay. And you say your finding is you don't accept the position that the drum lids were cut, okay? Can I ask you now, okay, what was your task, what was your purpose -- forget about the word "investigation", okay? Why were you doing what you were doing?

A: I suppose let's say a loss had occurred, and in this case, in the -- the erroneous cargo was delivered instead of the actual cargo, I would, of course, look into the possibility of theft, okay? In this case, since the cargo, they were all packed into steel drums and all the steel drums are also affixed with all the necessary seals provided from the point of origin, and we look into the aspect of whether these drums had been tampered with in order for the cargo to be removed from these drums. Our findings showed that there was no tampering of the drums and again -- and also the -- there was no tampering of the containers in which all these drums were stored in. I have looked into photographs from the time it left Kigali, photographs provided by the Alex Stewart surveyors. I compared that condition of storage, the location of the drums in which -- and how they were positioned in the container, and I compared that to the photographs and the survey report of Bureau Veritas in Tanzania, and the photographs showed us that the drums were in their very original position in which they were stowed in -- in -- in -- at Excellent Mining and in -- in Kigali. So that to us, that point, there was no -- there was no tampering of any sort that could lead me -- lead us to believe that theft has occurred. We have looked into all that possibility.

And adding to that, the same photograph provided by Bureau Veritas in Dar es Salaam, Tanzania, on the completion of loading after they're transferred into the shipping container, the condition of these drums, the position of these drums, again, when we compared to the photos we had to what we have seen when they arrived in MSC, Penang, the consignee, they were in exactly the same position. There was no evidence, there was no -- nothing to point, you know, to -- to any tampering of the container -- of the drums inside the container. No tampering of the seals of the container. The photos, to us, is quite strong to suggest that there was no tampering which could have led to the theft of the goods in our investigation, in our survey.

…

Court: Okay. What you are trying to tell us a few moments ago was that the drums for the sixth to the ninth shipments, from your investigation, they were not tampered with, right?

A: Yes.

Court: And the containers that arrived in Penang, they were also not tampered with.

A: Yes.

Court: Right? Therefore, your conclusion was that there was no theft, correct?

A: There's no tampering, therefore, there's no theft.

[emphasis added]

Q: … Just taking you back to your survey after the sixth shipment. When it was discovered that the cargo had been swapped, were there any additional instructions given to you by Mr Sim for the seventh, eighth and ninth shipments in terms of your survey?

A: I was instructed to inspect the container on arrival, check the seals, which need to be tallied with all the documents presented, and to also check the containers whether they are tampered or not and to witness the opening of the lid of the container -- sorry, of the drums and to witness the sampling of the cargo in everybody's presence at that time.

…

Q: Obviously at the time, the drums had already been cut open at MSC and you say that your inspection of it, you found that there were no signs of tampering or re-welding?

A: Yes.

…

Q: So essentially, from your affidavit you’re saying that your findings were that there was no tampering of the drums?

A: Yes.

[emphasis added]

Court: Mr Sim, I’m going to frame my question to you. Unfortunately, my question is going to be quite long so I seek your indulgence, pay attention to my question.

A: Okay.

Court: I am going to relate to you, and I stand correct by the parties if I’ve got my facts wrong, please interrupt my question, I’m going to relate to you the whole sequence of the movement of the cargo from Excellent Mining all the way to Dar es Salaam. Okay, Mr Sim?

A: Yes.

Court: When the cargo was at Excellent Mining, the focus of my question is really the degree of surveillance or security. At Excellent Mining warehouse, as you heard my exchange with counsel, you have official from the Rwanda Mining Board, who is a mineral field officer, and she was designated to be at the Excellent Mining literally the whole day, okay? Then you have the representative from Alex Stewart and you have the ITSCI, which is the International Tin Supply Chain Institute representative also there.

Mr Yee: Sorry, your Honour, it’s ITSCI. When you say MFO is there the whole day, do you mean the whole working day or --

…

Court: During the office hours. Then in addition to that, I don’t know whether you’re aware, within the premises of Excellent Mining, they have got security guards, and they have got CCTV cameras and the compound in walled. In other words, Excellent Mining has a wall that encompasses the compound. Okay? That is the degree of security they have at that stage. Then the cargo moved on to Bollore bonded warehouse. At Bollore bonded warehouse, there is a custom house there or near there and then the cargo will then be inspected by the revenue, Rwanda Revenue Authority. In addition to that, there is an Alex Stewart representative there too, okay? Then after that, the cargo will take a long journey of about 1,400, 1,500 kilometres to Dar es Salaam. Dar es Salaam, at the port area, the cargo will then have another surveillance which is the BV surveyor, you have got Bollore supervisor there, you have a Tanzanian officer there. Have you got it?

A: Yes.

Court: So I’m so sorry, it is a long question. This is really the entire supply chain from Excellent Mining all the way to Dar es Salaam, okay? I have explained to you the security aspect of it. Now --

Mr Yee: Sir, before you ask your question, you have missed out CCTV cameras and security guards at Bollore in Tanzania, in Dar es Salaam.

Court: CCTV cameras and?

Mr Yee: And security guards.

Court: At the port area.

Mr Yee: At the port area, yes.

Court: So now you’ve got this information. There are CCTV cameras at the port area too and there are security guards at the port area. Now, if you look at this entire supply chain from Excellent Mining all the way to Dar es Salaam, you tell me which is the weakest link.

A: In my opinion, your Honour, the weakest link is the area within Excellent Mining before the -- before the cargo left for its onward journey and voyage.

Court: Why do you say that the weakest link is at Excellent Mining?

A: Because it’s their private premises, okay, it is always in full control of the Excellent Mining people, that’s how I see it.

Court: You look at the security features at Excellent Mining, how can it possibly be the weakest link? No, I’ve already told you that there are security guards, there’s a wall compound, there’s CCTV cameras and then you have got mineral field officer that is stationed there during the office hours, then you have the Excellent Mining officer who stayed there, and then you have got the Alex Stewart people there, you have got the international tin supply chain representative there. How could it possibly be the weakest link?

A: Your Honour, the security would be most, utmost when everyone is there, as you mentioned, all the officials and surveyors, but I do not think they were there for the duration of the 24 hours, I believe they were only there during the working hours. So any -- any -- any time this -- that facility within Excellent Mining is not attended by these officers I think -- I think that there is a -- there is a -- there is a possible, you know, weakness, as you put it in the security.

…

Court: Can you tell me where is the strongest link?

…

A: The strongest link, in my opinion, would be in the -- the Dar es Salaam container terminal, or sometimes they will refer to as the container depot, that would be the strongest link.

Court: Please, that is the strongest link for you? Right. Then what do you consider the long journey from Rwanda to Tanzania, Dar es Salaam, you say that is not the strongest, it is not the weakest, is that what you’re trying to tell me then, because your weakest is, according to you, Excellent Mining, the strongest link is at Dar es Salaam. So the long journey is not the weakest, it is not the strongest link?

A: Yes, it is not the weakest, it is not the strongest.

Court: Would you like to explain to me what are the security features that you have in this long journey?

A: From the information I gathered from Bollore -- Bollore has informed, it is a straight on journey with not much security provided, that’s what I can gather.

…

Court: Would you like to explain to me why? There are hardly any security features there.

A: Yes.

…

A: Despite it not -- despite no security was provided to the conveyance vehicle or the drivers --

Court: … So what I’m saying here is that this long journey has hardly any security features. You’re saying it is not the strongest link. I want to hear from you why. And you chose Excellent Mining which has so many layers of security and you say that that is the weakest link. So I’m trying to understand your opinion.

A: I know it sounds bizarre but I --

Court: It is, Mr Sim and that’s what I want to hear from you, what is in your analysis, what is in your mind.

A: I have mentioned this earlier to the -- I think, the plaintiff’s lawyer, despite the long journey, there just appeared to be no reported incident, no records of anything untoward, and this is -- this is -- this is a journey, although a very long distance journey, right, we have a situation where, I think, during all these, sixth to ninth shipments, they were all different drivers that were assigned to the delivery. They were all different -- so it is -- for me, I don’t see anything having occurred that tantamount to, you know, a lack of security, your Honour.

[emphasis added]

Court: … My question to you is: you didn’t know that the drums were cut, you are not investigating into the theft of the cargo, then I’m asking you what are you investigating now, at that time, in 2018, because those are the things that troubled the insurance [company] and you’re not investigating those things, what are you investigating?

A: We have investigated, I -- we -- on our part here, we found no cutting of the drums.

Court: No, no, please, my question is: what are you investigating?

A: I was going on the probability that there was no cutting of the drum, there was no theft, okay, there -- something must have gone wrong from the point of origin based on all the evidence that I had before me.

Q: … Would you agree that the RIB, on behalf of NPPA, has conducted a thorough, on-the-ground investigation?

A: I don’t agree with that.

Q: Your basis, please?

A: Because they were not even aware of the method of theft. As they said here that they only reviewed the reports, and I also reviewed the same reports, so this is not really an investigation. This is a desktop review of reports by different surveyors.

Q: I put it to you, Dr Petrone, that this report by the National Public Prosecution Authority of Rwanda carries great weight. Do you agree with me?

A: I completely disagree. This is just a desktop job. It is not an investigation. I would say quite honestly, it’s an amateur job done to investigate this case. It’s just a desktop review of surveyor’s report, then some people with obvious conflict of interest in this matter have been asked if they have stolen the cargo or whether the cargo was stolen, and they have no basis for their statements here. They have done no investigation, no independent investigation was done. So I say this is not really -- this is not an investigation. This is just a summary of statement from people with interests in this matter.

Q: You have read this report, which is a final decision, and it is three pages. And you have come to many, many conclusions and assumptions, Dr Petrone. You agree?

A: Can you elaborate on my assumptions, please?

Q: Yes. You are saying, essentially, that they didn’t conduct a proper investigation. You are saying they conducted a desktop investigation. On what basis do you say that? Did you speak to RIB about this investigation?

A: Well, at the time when I was in Kigali --

Q: Did you speak to RIB about this investigation that concludes with the final decision on the case?

A: Okay, now that your question is completed, no, I didn’t speak to them at the completion of the investigation. No.

Q: I put it to you also, Dr Petrone, that in actual fact the NPPA does not need to state in great detail the evidence and investigations that it has carried out when reporting on the decision to close the case. You agree with me?

A: I’m not aware of this.

Q: In actual fact, Dr Petrone, you are not aware at all of what investigations and the extent of the investigations actually carried out. Isn’t it, Dr Petrone?

A: Counsel, I’m aware of what is written in this report.

…

[Q]: … In actual fact, Dr Petrone, you are not aware at all of what investigations were carried out, and the extent of those investigations carried out by RIB. Isn’t it so?

A: I’m not aware of other facts beside this document. Yes.

Court: No, can you please answer the question.

A: I’m not aware if there was any other investigation done.

[Q]: But you very boldly dismissed this report. Isn’t it so?

A: Yes, correct. I dismissed it. Yes.

[emphasis added]

5.3.17 For the 6th shipment, the chemical analysis shows the presence of cassiterite and wolframite, but not coltan. The certificates for other three shipments only show the presence of cassiterite (see Appendix 7). The quality certificates thus show that the 3T minerals are not found concomitantly in any of the four shipments in question.

5.3.18 As per my discussions with Dr. Hans Gäbler, BGR have mineralogical data from several 3T mine sites in Rwanda, Burundi, DRC and Uganda. I understand that a combination of the 3T minerals from the same mine site is rare.

5.3.19 Therefore, on the basis of the BGR’s results and of my discussions with Dr. Hans Gäbler, the contemporaneous presence of 3T minerals from the same mine is unlikely. Therefore, it follows that the grains of 3T minerals found within the iron oxide material in the drums at MSC in Malaysia were likely from a mixture and not from a single deposit.

5.3.20 In other words, the 3T minerals were not originally part of the iron oxide material placed in the drums, but they had been admixed at some stage with the iron oxide material and among them prior to the drums being filled.

5.3.21 Therefore, the main question was where in the chain of events of this matter the grains of all 3T minerals have found their way into the iron oxide material in the drums of the four shipments of this matter.

5.3.22 The grains of all 3T minerals would have had to be admixed with the pile of iron oxide material in a place where all 3T minerals are routinely stored and handled, since they likely did not originate from the same mine site.

5.3.23 As previously concluded in this report, it can be reasonably concluded that it is unlikely that the cassiterite grains found in the iron oxide material in the drums had originated from Tanzania. The concomitant presence of all 3T minerals admixed to the iron oxide material in the drums of the four shipments could have occurred only in Rwanda, which has mines of all 3T minerals.

5.3.24 Having excluded Tanzania from the likely country where the theft had occurred, the origin of the iron oxide material admixed with all 3T minerals was likely a trader, exporter or comptoir of these minerals in Rwanda. Excellent Mining is a trader of these 3T minerals.

5.3.25 On the basis of the above comments, in my opinion it was likely that iron oxide material had been brought at Excellent Mining and placed in a large pile on the floor of the open yard, in the same fashion as the Tin Concentrate cargo had been mixed for the four shipment of this matter. The pile of iron oxide would have been then shovelled into open drums after having cut open their lids and emptied them of their contents. During this operation, grains of 3T minerals present on the floor of the open yard or on other equipment/tools used at Excellent Mining to fill the drums would have been admixed to the iron oxide material.

…

8.5 Laboratory analyses carried out by BGR concluded that the probability that the cassiterite grains found admixed with iron oxide material in the drums have not originated from Nyaruvumu and Gituntu mines. All cassiterite grains in the four shipments in question had originated from the same source, with the likely origin being the Kibara belt, geological unit that extends across Rwanda, Burundi, parts of Uganda and the Democratic Republic of the Congo (DRC).

8.6 In consideration of the route of the drums, Burundi, Uganda and DRC have been ruled out as potential places where the theft had occurred, and thus Tanzania and Malaysia are also excluded. This leaves only Rwanda as the only place where the cassiterite grains found in the drum mixed with iron oxide could have originated from.

8.7 Furthermore, the BGR laboratory detected the presence of all 3T minerals in the tested samples. The contemporaneous presence of 3T minerals from the same mine is unlikely, as per information obtained from the database of samples at the BGR. Therefore, the 3T minerals found within the iron oxide material were likely from a mixture of mine sites and not from a single deposit. The 3T minerals were not originally together but had been mixed with the iron oxide material prior to ending up in the drums of the four shipments in question.

8.8 The origin of the material in the drums comprising the 3T minerals and iron oxide was therefore likely a trader of these minerals in Rwanda, since evidence presented in this report has ruled out Tanzania as a potential country where the theft had occurred. Excellent Mining is a trader of these 3T minerals and, in my opinion, it was the likely site where the iron oxide material had been mixed with the 3T minerals and then transferred into the drums of the four shipments.

[emphasis in original omitted; emphasis added in italics]

Court: Now, you have told us that there is a -- there is a possibility that the iron ore could have been contaminated by the original cargo of tin ore. Right? This afternoon --

A: We discussed about that, yes.

Court: … Now, when the test took place -- I don't care where the test took place, all right?

A: Okay, your Honour.

Court: You have to first unload the tin ore. I mean, it's common sense.

A: Yes, correct.

Court: You offload the tin ore, and then after that you fill it up with iron ore. Okay? Now, in the process, there is another possibility of contamination. Because there is tin ore and iron ore at the same place when you are offloading and loading a different substance.

A: Yes, your Honour. Yes.

Court: Correct?

A: It is correct. You are correct, yes.

Court: So it doesn't -- in other words, there is two possibilities of contamination of the iron ore, with the tin ore.

A: Yes.

A: Yes, it appears so with the method [the defendant’s expert] used, the 3T minerals were detected. Then further the conclusion says:

 “The contemporaneous presence of 3T minerals from the same mine is unlikely, as per information obtained from the database of samples at the BGR."

Now, you were showing here previously the table. There is a small probability that they could also originate from the same site, we could see there. It was not zero, it was showing some number of --

Q: Slow down. Slow down. Slow down. Go ahead.

A: So, therefore, the 3T minerals found within the iron oxide material were likely from a mixture of mine sites and not from a single deposit. I do not understand this conclusion, I have to say, because, first, they are stating that all four samples appears to be from the same source that, in my opinion, would be probably from the same mine site, according to their database. But then they say that it is actually very unlikely that these 3T minerals, tungsten, tantalum and tin, would actually originate from the same single deposit. Maybe Dr [Gäbler] would be more in a position to further elaborate this conclusion. I think it is contradictory to how I understand his conclusion:

Further:

"The 3T minerals were not originally together but had mean mixed doubt [sic] prior to ending up in the drums of the four shipments in question."

This is again debatable whether they were mixed or not. I think as the judge said earlier, and this is also my opinion, if initially there was a cassiterite concentrate in those drums and it was swapped, my logic tells me that cassiterite from the original shipment should be there and cassiterite can also come with the tantalum, with like traces of tantalum, I think this is also not disputed, and it could also then come with the tungsten.

[emphasis added]

FTIR results both show an alkyd resin based paint, however when the graphs are overlaid there are not enough similarities to be considered an exact match. An FTIR will only determine the resin origin of the sample, the differences in the stretches and peaks could be due to different thickness of samples or the presence of contaminants.

XRD analysis show many matching compounds; however the paint flakes backed with plaster showed a much higher reading of Calcite. It is difficult to determine whether this Calcite is a false reading due to the plaster or if it is filler being used in the paint. The Barite, Talc, and Magnesite found in the sample with the plaster may also be contamination and not a true reading of the paint’s composition. For a more accurate analysis, at least 10g of each sample would be required uncontaminated.

The heavy (toxic) metal analysis shows much higher concentrations of aluminium and zinc in sample 197256. This would suggest very different compositions of the two samples.

However, due to the contamination present and the difficulty in separating the sample from the lid cut out and the plaster, the results may be limited in representation.

Under magnification, the two samples appear visually very alike. The presence of the same contamination seems very closely matched across the two samples; however it has not been determined as to what this contamination is.

Considering all the results there is a very strong correlation between the two samples and it is possible to determine that the two paints share the same resin type, however due to the samples being contaminated it cannot be identified as a complete match. Provision of uncontaminated samples for further testing would allow for a more accurate determination.

3.35 The SOCOTEC paint analysis report clearly evidenced the chemical composition of these two paint samples was markedly different, and therefore the fingerprints of these samples did not match with each other. This meaning, that they were apparently not from the same paint manufacturer or source.

A: … So this is the IR spectrum of paint lid sample. There’s the sample initially painted, yes. And then on the next page you have paint flake sample. This is the sample taken from the rim of the drum. Now you could see on the Y-axis on the left side, you have the transmitters, and on the X-axis, you have wavelength number. Each -- now, this FTR analysis basically measures sample absorbance of infrared light at various wavelengths, yes, and energy levels of this absorbed IR are actually give you the fingerprint -- basically give you the composition of each of the compounds. And each of the compounds has a unique fingerprint, okay? So in order you would say that something matches, it has to be identical, it has to -- all the peaks need to match, but here clearly there are some peaks present in one sample and some peaks are not present in another sample. So if you go down. So now you have to see because it is transmitters, now you have to look at the peaks which are pointing down, yeah, and let’s now go from the left side to the right side. So we are of the region of 3,700 centimetres minus one. Yes. You can see there the two peaks. And now if you go back to each of the individual spectrums, you can see that in the paint flake sample, you have, first, two peaks which are not identified with the paint lid. This is 3728 and 3702. Then further, we go to the area of 3062, there are two peaks that appear in the paint lid and they’re not there in the paint flakes. Further, we go to the area of 2336, there are five peaks detected with the paint flakes and three peaks detected with the paint lid. Further, we can go to the 1950, that’s one peak with defected in the paint lid, and there’s no peak detected in the paint flakes. Further we go to peak of 1734, that’s the carbonyl group, you could see that carbonyl group -- I mean this peak has a shoulder in the paint lid, while in the paint flake sample, the peak is very -- yeah, this is basically -- yeah, this peak here. This one peak but then if you scroll up, this area we can see this small shoulder, like from the tip of the peak, 1 centimetre up on the right side, yeah, this one, yeah. So then we go to the fingerprint area, there are again differences, really visible differences, I can basically go one by one.

 1581 with the paint lid sample, there are two peaks only detected with the paint flakes, there are three peaks detected, if you scroll down.

[emphasis added]

Court: So, in other words, besides the two graphs, you need to look at the chemical composition of these two samples before you can come to the conclusion that they are the same?

A:  Yes.

Court:  Right?

A: Yes. It would be wrong -- scientifically wrong to just conclude based on the FTR analysis and say that white paints are of the same source because, as I said, even if these two FTR spectra would be identical, then we still have -- what about if the pigment was different in both of the paints?

…

A: Okay. So first phase we have rutile, it is titanium dioxide, and you can see in one sample, it is 59 weight per cent and in the other sample it is 3.5 weight per cent. Okay, I am aware that XRD method actually does not detect below 5 weight per cent but with that error we can clearly see that here it is, like, 10 times difference. So this first implies on different chemical composition. Further, if we go to the anatase, which is, like, the fifth row -- sorry, if we go to calcite, sorry, it is the fourth row, yes. Again, the difference in both samples is very obvious, at least to me. So what I'm saying now here in one paint source, rutile was used as a pigment, a white pigment, and in another paint type, the calcite was used as a pigment. Then there are other differences here let's say barite and magnesite were not actually detected within one paint sample and were detected in another one. So, to a scientist, this should be like a very clear position that we are clearly not talking about the same paint. I'm saying that because these results have normalised, the 100 per cent and we're talking about shares.

[emphasis added]

3.4 The Fourier Transform-Infrared (FT-IR) analysis carried out by SOCOTEC determined that the IR spectra of the flakes from the rim and the centre of the lid were identical. A slight difference in the intensity of signals (% Transmittance or %T) can be seen in the IR spectra. This difference in %T is to be expected for this technique and relates to the quantity, density or thickness of the paint, and the local quantity of chemical functionalities probed by the IR beam. The same sample tested twice will likely show difference in %T. Therefore, differences in %T do not relate to differences in the chemical composition of two samples.

3.5 The critical aspect to consider is the presence and position of signals, namely whether negative peaks in the IR spectra are found and at which position on the x-axis (wavelength measured in cm-1). Signals related to the stretching vibrations of aliphatic groups (-CH2- and -CH3) and carbonyl (C=O) in an ester group (COOR) can be found in the IR spectra in the ranges at between approximately 3,100-2,900 cm-1 and 1,600-1,800 cm-1, respectively. Therefore, the IR spectra for both samples related to an aliphatic ester paint or resin.

3.6 The IR results from the SOCOTEC laboratory thus concluded that both tested paints were polyester resins, which are more generally known in the industry as alkyd paints or oil-based paints.

A: … The way I say that these paints are exactly the same paint is based on my review of the FTIR data on page 900. So at page 900, you have a picture at the bottom of the page where there is the overlap of the two FTIR spectra.

Let me start by saying that FTIR is not a quantitative technique, which means it is a qualitative in nature. Therefore, look at the intensity of the peaks which are negative in this graph. So negative peaks are signals of chemical groups present in the sample.

So we need to ignore the intensity. We only look at the position, so the X-axis, which are centimetres to the minus 1 units. So this is like an energy of the bonds, how the bonds vibrate of different chemical groups within the samples.

If you look at this, just a quick glance, I would say that all the major signals -- so the fingerprint -- is the same. And, in fact, this is also confirmed by SOCOTEC, so these are two alkyd paints. And how can I say that? Simply by looking at alkyd paints are characterised chemically by a bond called ester bonds. And these ester signals can be seen as a prominent, in this case, negative peak, of around 1,700. Then there will be another around 1,270, and then there is another negative peak at around 1,100. So this is so-called the triplet of the ester bond vibration. So one group gives rise to three different signals. That's how we know that this is an alkyd paint, so ester alkyd paint.

Now, if we look now at other signals -- and I've listened to Dr Kuezma, the position. Of course, I was here at the time. She said that these two spectra do not match 100 per cent, therefore, they are different paints, something on those terms. Yes.

But as an IR expert, infrared spectroscopy expert, I have seen many, many spectra of complex material. So this is a complex material, it is a paint. If I had only one material, let's say water or glass, these are simple materials. Every time I record an FTIR, I always get the same signals. It is correct.

But once I have a paint, which is a complex material of about 10 to 20 ingredients interacting, what happens is that some of these interactions will impede, or block the freedom of movement of some of the atoms. So if I had, your Honour, the same sample and I carry out one analysis with an infrared beam, which is pretty much the size of a human hair, so it's a small spot. And I record one signal, if then I record another signal on the same sample of this complex material, I know already that I will get slight differences, because the local chemical environment in each point would be different. Because it is such a complex material, it cannot be homogeneous at such a small resolution.

So whenever I analyse different points on the same material, I expect to see some small differences. Of course the major signal would be the same, but there would be some vibration, some modes which could be impeded.

Specifically in this case, if I can go into the details, it is the area of so-called aromatic group. So this tells me that there is an aromatic group which has been added, an extra ingredient to modify this polymeric chain, this polymer of the paint. There are some aromatic group like benzene, which are big rings, usually comprising six carbons all linked together without the hydrogen. So this is the region of the aromatic groups. And I don't need to see three signals to say that this is an aromatic group. I only need two signals or one signal, because only aromatic functionalities are found in this region that we are talking about, because these will have different -- carbon and carbon will have different so-called stretching, you can have like symmetric stretching or anti-symmetric stretching, you will have bendy modes. So it will have several modes, some of these modes doesn't have this degree of freedom from point to point on the same sample.

Now, when I see two peaks and then three peaks, I know there is an aromatic group in there. That's why I'm saying this is exactly the same compound. Because maybe in that spot, one of these stretching didn't have the freedom to vibrate. That's all it means.

So that's why I'm saying that what Dr Kuezma explained was incorrect, and that's why I'm saying that even though to a layperson they might look different, but to me, because I know the origin of each peak, I know that this is the same region, I'm looking at the same compounds, same molecule. At all the peaks, there is a match. That's why I'm saying the two resins match.

[emphasis added in italics and bold italics]

3.12 SOCOTEC concluded that there was a ‘very strong correlation’ between the two paint samples. In my opinion, as a coating expert with experience in laboratory analyses of paint, and having worked with and published several peer-reviewed scientific articles by using IR spectroscopy, SEM-EDX, XRD, optical microscopy and ICP, I agree with this SOCOTEC’s comment. Therefore, in my opinion, the thin paint applied in the centre of the lid and the thicker paint applied over the welds were the same and they were likely “Email Brillante, Super Gloss” from Ameki Color in Kigali, Rwanda.

[emphasis in original omitted; emphasis added in italics]

5.2.6 I took the photograph below on the left-hand side at MSC in Penang on 12 September 2018 for the 9th shipment. The photograph on the right-hand side was provided by Sizer Metal and it coincides with a photograph found in the ‘Container Inspection Certificate’ dated 3 July 2018, which was prepared by Alex Stewart International Rwanda (see Appendix 18). The photographs show the same white drum with the box containing the tags on it. The layer of paint found on the drum at the arrival at MSC appears the same as that on the same drum at Excellent Mining prior to the closing and sealing of the doors of the container TCNU3309107.

5.2.7 In my opinion, the comparison of the photographs above is evidence that the thick layer of paint had been already applied onto the drum’s lid at Excellent Mining in Kigali prior to the completion of the stuffing operations and the closing of the container’s door.

5.2.8 Other photographs provided by Sizer Metals show the presence of a similar paint coverage on the lids of all drums at Excellent Mining, which was the same I have seen at the arrival of the drums at MSC in Penang for 8th and 9th shipments (see photographs provided by Sizer Metals for 6th, 7th, 8th and 9th shipments in Appendices 17, 19, 20 and 21).

5.2.9 Furthermore, all photographs provided by Sizer Metals for the drums in Kigali at the time of stuffing/loading into the respective containers show a strikingly similarity in paint coverage over the lids and rims of the lids as to those observed both in Penang and in the Bureau Veritas (“BV”) Stuffing Survey reports from Dar Es Salaam in Tanzania (see all four BV reports in Appendix 22).

5.2.10 No photograph was provided to me for the drums when the seals were applied or when the lids where painted. Therefore, I am not able to directly compare the appearance of the paint coverage over the drums’ lids when it had been originally applied with the paint coverage over drums at the time of stuffing/loading into the containers, and subsequently when the drums arrived at Dar Es Salaam in Tanzania.

[emphasis in original omitted; emphasis added in italics]

2.1 On 3 October 2018, I travelled to Kigali, Rwanda to investigate the standard operations at Excellent Mining. I also interviewed representatives from Bollorè Logistics in Kigali and met with the Rwanda Investigation Bureau.

2.2 I attended at Excellent Mining and met with the manager, Mr Theodore Sindikubwabo, and with the person in charge for the supply of minerals, Mr Emmanuel Uwimana. In attendance were also Mr Abizer Tambawala and Mr Jaffer Diwan from Sizer Metals.

2.3 I inspected an open yard at Excellent Mining where minerals are piled up and mixed on the ground, followed by sampling and then loading into the drums (see photographs in Appendix 11).

2.4 I enquired about the paint used on the drum’s lids and workers at the site explained that only a thin layer of a white paint is always applied by brush on the lids to increase contrast when information on the shipment is handwritten on the lids.

2.5 During my inspection, I located 1-L cans of paint stored at the open yard. Information visible on the can showed that the paint was “Email Brillante, Super Gloss” manufactured by Ameki Color, which is located in Kigali, Rwanda (see photograph in Appendix 12).

2.6 I have also inspected empty drums found at Excellent Mining’s premises, and all drums were intact. No evidence of welds was seen on any of the drums I examined at the site (see photographs in Appendix 13).

2.7 Through my interview with personnel at Excellent Mining and my inspection, I noticed the presence of one CCTV camera, which was not located where the drums with this Tin Concentrate had been reportedly stored prior to being stuffed/loaded into the containers (see photographs in Appendix 14). There were inconsistencies in the information I received from the Excellent Mining personnel in relation to the location of the CCTV cameras and on whether they were functioning properly at the time of my inspection. I requested for any recordings from CCTV cameras at the time of the four shipments of this matter, but I was informed that no CCTV camera was in place or functioning at the time. Furthermore, no invoice or receipt for the purchase of a CCTV camera was reportedly available upon my request, therefore I was not able to obtain evidence as to when the CCTV camera had been purchased in relation to the four shipments in question.

2.8 In essence, I found no evidence that a video surveillance system was in place at the time when the drums of the four shipments in question were stored at Excellent Mining’s premises.

2.9 There were other inconsistencies during my interviews with the personnel at Excellent Mining. I was initially informed that the drums’ storage location for the four shipments in question had been changed to another location where no CCTV camera was installed. This would have explained the lack of CCTV recordings. However, upon my request, Mr Abizer Tambawala phoned Mr Mwashi from Alex Stewart in Kigali, who stated that in his experience as a surveyor at Excellent Mining over many years the mixing of the material, sampling operations and storage of the drums were conducted always at the same yard. Mr Mwashi’s statement thus contradicted the information I received from Excellent Mining’s personnel during my interviews.

2.10 Subsequently, accompanied by the two Sizer Metals’ representatives, on the same day I travelled to the Rwanda Inspection Bureau (RIB) and met with Mr Damian Ndayisaba, the prosecutor in charge of the investigation into this theft. Mr Ndayisaba stated that RIB had no previous experience with such matters and that RIB had no information on who perpetrated the theft or where (see photograph in Appendix 15).

[emphasis in original omitted]

Q: Very generally, in a very general overview, I am going to ask you what your case theory is about in this case, okay, your findings? Now, would I be right to say that your case theory is that the thefts occurred undetected at the Excellent Mining premises?

A: Sorry, I think I missed a word. You said undetected?

Q: You say it's your case that the thefts occurred undetected at the Excellent Mining premises?

A: The case -- yeah, my case is that the theft --

Q: No, no, answer "yes" or "no", and then you explain. Very clear. I've asked you a very simple question. The beginning of your case theory is that the thefts occurred undetected at Excellent Mining premises. Yes or no?

A: Sorry, counsel. I can't agree on the word "undetected". I don't know what you mean by that. Undetected by who?

Q: I am asking you, then. Who do you think would have detected this crime? Wasn't that part of your investigation? I've looked at the evidence in this case, I've looked at your report. As far as I can see, you say this theft occurred undetected at Excellent Mining premises. If it had been detected, it would have been reported and stopped. Isn't it?

So that's why I'm proposing to you that your case theory must be that the thefts occurred undetected at the Excellent Mining premises?

A: Respectfully, your Honour, I don't understand the word undetected. You mean undetected by police, undetected by guards, undetected by Excellent Mining personnel?

Q: Undetected by everyone. That's what I mean. Dr Petrone, this is a very simple question.

A: Sorry, it's not very simple. You need to be specific on the word "undetected".

Q: I am telling you specifically what I mean by "undetected" is that no one knew about this theft. No one. Yes or no? Isn't that your case theory?

A: Your Honour, I think no one with the exception of the perpetrators, obviously.

…

Q: Of course, Dr Petrone.

A: Yes.

…

Q: So you agree with me that this theft occurred undetected at the Excellent Mining premises, yes? Only the thieves knew about it, of course.

A: If that is your definition of "undetected", yes, I agree.

Q: Thank you.

A: Yes.

Q: And you say that the swap must have taken place inside Excellent Mining's premises, and before the drums were loaded into the 40-foot containers. Yes?

A: Yes, that is correct.

Q: You say the tin ore had already been placed in the drums and sealed. And, therefore, the drums had to be cut, the lids of the drums had to be cut in order to do the replacement without tampering of the seals on top of the drum. Am I right?

A: That is correct.

Q: Good. And, therefore, it is not your case theory that this theft could have occurred at the Bollore warehouse. Yes?

A: That is correct.

Q: And, therefore, it is not your case that the theft could have occurred at the MSC premises. Correct?

A: That is correct, too. Mm.