Bennett trial: Judge extends the long rope to the AG

Peter Hitschmann impeached for demeanor in court and not departure from previously disowned statement as applied and intended by the AG.

As we previously predicted Justice Chinembiri Bhunu has granted self confessed Zanu PF Attorney General Johannes Tomana his wish by holding that star witness in the Roy Bennett banditry, insurgency and terrorism trial Michael Peter Hitschmann has turned hostile and must be impeached.

His reasons in arriving at that verdict had nothing to do with submissions tendered by the incompetent AG but rather his subjective judgement of the attitude of the state’s star witness turned hostile.


The learned judge held that Hitschmann had turned hostile to the prosecution case not because he had previously substantively supported it but rather because he had conducted himself in a manner that is against the State.

“The witness’s conduct in this case is against the state,” held Justice Bhunu.
Justice Bhunu held further that it was incompetent for the State to attempt to use the statement that had hitherto been disowned by the witness as the basis for impeachment.

In a clear case of the Judge turning prosecutor he then introduced a fresh ground for impeachment the state had not relied on in its application when he went on to hold that;

The demeanour of the witness in court had left him convinced that the witness had turned hostile to the State case and thus justified him granting the application on that alternative legal principle notwithstanding that the State had not relied on that alternative in formulating its application for impeachment.

“When the witness took the stand, he portrayed himself as someone who was deeply aggrieved and had an axe to grind with the State,” opined Justice Bhunu adding further that;
In his view the witness who is a former Police Officer views his former colleagues in the Police force as incompetent and sees the State as an adversary following his serving of a two year sentence after conviction in a matter he has since appealed against but has not been set down for resolution.
The Judge also found it absurd that the star State witness had uttered that he had been intrigued by Bennett when he watched a televised programme from Parliament that showed the MDC legislator assaulting Justice Minister Patrick Chinamasa and on that basis he ruled that;

“The witness in this case is accordingly an adverse and hostile witness and the State is obliged to cross-examine him.”

It raises questions about Justice Bhunu’s impartiality in this matter given a previous defence application for him to recuse himself from the matter that he dismissed.

Now that the State has got its wish to have its star witness impeached, the AG is now in the spotlight.

Given that the witness was not impeached on any departure from a previously attested statement but merely on his demeanour in court the AG must now expose how such demeanour is unfavourable to his case in his cross examination of the witness.

In doing so, he will attempt to use every means possible to commit Hitschmann to the words in the statement that the Court has persistently barred him from producing as evidence in the current trial.

In other words the AG will attempt to rewrite the statement he relied on to order Bennett’s prosecution through oral evidence extracted in the cross examination.

This will be a onerous task for the AG regard being paid to the consistency with which the witness has maintained that he was tortured into making the statement implicating Bennett.

Even if he should be tricked into making a volte face implicating Bennett once more the Court will have greatest difficulty in choosing which aspect of his testimony to rely on in coming up with the determination of the case.

Already the witness has unsuccessfully applied for personal legal representation and the defence can argue that this has left him exposed and insecure should he depart from his viva voce evidence.

Either way the State case appears very much in disarray at the moment and will require the best of the AG to put back on track.

But even if he fails the Judge in this matter can be expected to panel beat the matter with subjective reasoning to justify his determination which will only lead to an appeal being lodged to the Supreme Court in the likely event the State secures a flawed conviction.

What is evident for now is that the Judge has unintentionally thrown the AG a long rope with which to hang himself in this matter.

Relishing the chance to shine the AG went straight into cross examination of his star witness turned hostile by the court.

The rush was obviously motivated by the need to surprise the witness into confirming the statement he has disowned before he got any chance to consult anyone else.

It is a futile but nonetheless worthwhile attempt by the AG who refused to heed advice to abandon the case as it was and will always remain politically motivated rather than a genuine case of criminal conduct by the accused.