Under siege MDC-T treasurer general riding the crest of tide of Zanu PF scripted persecution from the AG's Office complicated by the involvement of a judge the defense wanted to recuse himself from presiding over the highly charged and politicised case
Justice Chinembiri Bhunu ruled that evidence of e-mail correspondence between Peter Michael Hitschmann and Roy Bennett be admitted as evidence upon which the MDC-T Treasurer General must continue to be prosecuted in the matter where he is accused of amassing weapons for the purpose of committing acts of insurgency, banditry and terrorism against the Zanu PF government led by President Mugabe.
The learned Judge held that;
Hitschmann was an accomplice in the commission of the crime by Bennett as evidenced by his previous conviction on a lesser charge of possessing illegal weapons in 2006.
The entire State case hinges on evidence contained in the e-mails in dispute which must be admitted as they were transmitted before the Hitschmann was tortured and thus were not induced through torture as was the case of statements and video footage he has thrown out.
Johannes Tomana the Attorney General (AG) who has taken personal charge for Bennett’s prosecution sighed with relief from the realization that his persecution prosecution of Bennett was once again back on track following near collapse when handwritten and attested statements from Hitschmann as well as video footage from CIO and Army investigators that he had intended relying on had been previously dismissed as inadmissible evidence because of procedural flaws in the manner they were obtained.
The AG’s relief was short lived as the defense started discrediting the e-mail evidence to show why such evidence is unsafe to rely on in criminal prosecutions carrying the gravity of the prescribed capital punishment of the death penalty and or life imprisonment attendant in the Bennett case.
Nyasha Matare a CIO operative masquerading as a Clerk Typist was given an e-mail sent by Johannes Tomana implicating the AG in the commission of the crime by Bennett.
The incensed AG shot up his seat in protest at the unwarranted production of such falsified and damming evidence by the defense with the intent to tarnish not just his personal image but also bring into disrepute the office of the AG.
"If those documents are being produced to attack the person of the AG, they should be excluded. They are being used for the purposes of embarrassing my officers and me.
"This is not my trial, neither am I a witness in this case. From the beginning the defence has been trying to drag the person of the AG into the case. There is no need to caricature the person of the AG. That is an impermissible manner of proceeding with such a serious case.
"Of record, I have complained about the intemperate language used by the defence. By now, it is quite clear that the circumstances under which the AG has been forced to carry this State burden lacks insulation provided for under the powers of the AG," objected a furious Tomana.
But surely what is good for the goose must also be good for the gander in such a serious case.
It was the same AG who had hitherto caused the arrest and prosecution of Hitschmann’s legal counsel Mordecai Mahlangu simply because he had dared write to the AG informing him that his client would distance himself from statements that were extracted from him in March 2006 through torture.
The AG classified such correspondence a prosecutable attempt to defeat the course of justice which with hindsight now looks very damaging for the AG as the same evidence was rejected not once but twice by the High Court and Mahlangu was acquitted of the frivolous and vexatious charge leveled on him by the AG.
It is the same AG who has applied and been granted permission to use cyber evidence against an accused facing capital punishment if convicted who does not want the same evidence adduced in the same court if it implicates his office in the commission of the crime and we wonder why.
Could it be because he realizes how unsafe his key source of evidence against the accused is and how easily the source can be manipulated to incriminate the innocent and unsuspecting victims like him being made an accomplice in the commission of the crime he is prosecuting?
"The problem with counsel for the State is that when he enters this courtroom he considers himself the AG and not just a representative of the State.
"Even if you are a professor, doctor or whatever, when you are in court you get the same treatment as others. Mr Tomana is at par with me when he is in court and he does not get preferential treatment from the court because he is AG.
"You cannot stop the accused person from demonstrating the fakeness of the documents. How do you expect him to prove his case?" defense counsel Beatrice
Mtetwa provided the answer in response to the prosecution objection.
Hopefully the defense has not finished cross examination of the Nyasha Matare on this witness because there are many issues this witness can be useful in demonstrating the innocence of the accused in this matter.
Matare must be examined on the reasons why it was necessary for her to be called upon to print e-mails from Hitschmann’s instructions as if there were no other typists in the POLICE FORCE in Mutare whom the Police could have assigned the task given that they had to follow instructions from the impeached state star witness rather than use their own expertise in hacking into private e-mails.
Given that she has already admitted that she downloaded the e-mails from a court exhibit the defense must insist on her performing the procedure in-loco on the same computer for the court to be left in no doubt that she indeed downloaded the e-mails in evidence from the said computer.
Matare must also be asked to use the same computer to print the source document of the e-mails using free IP tracking software on the web which will show the origins of the emails in an IP address and the time it was generated as well the route it was delivered and the recipient IP address which must all link to the accused and his accomplice.
Such information will be useful in confirming or dispelling the Judge’s contention that the e-mail evidence was in existence prior to the impeached witness and accused’s arrest.
Further such evidence will be useful in locating the accused and the impeached witness at the crime scene and form prima facie evidence for their continued prosecution.
In the unlikely event the e-mails sources and destination link to the accused and impeached witness’ IP addresses that can be established in similar fashion, the defense will still have the opportunity to distance their clients from the crime by demonstrating that their clients could not have been involved in the communication based on alibi’s and merits contained therein.
Justice Bhunu has made so eyebrow raising decisions in this case to be trusted in his neutrality in presiding over the matter.
It was the same judge who determined that Bennett and Hitschmann were facing serious allegations that needed to be examined in a full trial rather than be dismissed on technicalities.
It was him again who impeached Hitschmann on the grounds of demeanor in court that the prosecution had not raised in its application.
Yet again it is the same Judge who has held that evidence in e-mails that were yet to be of record was sufficient grounds upon which the state must proceed with the prosecution and more alarmingly that the evidence was there before the witness was tortured into implicating the accused and thus is admissible in his court.
The paradox of it all is that the Judge’s findings indicate that he is getting feeds on the matter outside court hearings and is not reluctant to rely on such improper submissions in determining the matter.
However because the Judge and not the prosecution has been instrumental in keeping intact a case that is without merit, the AG finds himself in great difficulty responding to defense cross examination of issues that are not of his conviction but from third parties yet to be identified as will happen in due course of the trial.
For now the AG has surely been hanged out to dry and he is not coping well with the heat as evident from his furious interjections. He can however take solace in that so far the Judge has not let him down and hope that support will continue.
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