Bennett case: Judge defers Ruling on email evidence

By Raymond Maingire

HARARE – High Court Judge, Chinembiri Bhunu, has reserved judgement on the application by the State to bring in email evidence allegedly downloaded from the laptop of Peter Michael Hitschmann, a key witness and alleged accomplice in the terrorism case of MDC treasurer general, Roy Bennett.

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Editors Note:

Bennetts Lawyer needs to ask for this data. If the Emails are genuine, they will prove who was where and who sent them. (Editor)
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After the court had ruled as inadmissible evidence sourced through the so-called confessions from the firearms dealer, the prosecution, led by Attorney General Johannes Tomana now seeks to have the emails messages in question used as evidence of communication between Hitschmann and Bennett.

But the defence has challenged the production of the emails which it says could have been created by State security agents.

The State says the emails contain details of the alleged conspiracy between Bennett and Hitschmann to commit acts of insurgency and banditry.

“The State, My Lord, has been barred from relying on the admissions which were specified in this court, namely handwritten statements by Peter Michael Hitschmann, video evidence and the sworn statement by the witness,” said Tomana.

“For that reason, it has abandoned the use of those three admitted statements.

“These (emails) are documents separate from any admission that Peter Michael Hitschmann placed. These are documents which were found independently and separately from the admission. The objection by the defence counsel is ill-founded and must be dismissed.”

Tomana said the State was producing the printed emails as evidence to prove that there is such evidence.

Tomana was adamant the emails were “verifiable evidence” which must be treated separately from the other pieces of evidence which were ruled as inadmissible by the court.

“The emails contain relevant executive statements between the witness and the accused person and there is no rule of admissibility that bars this court from accepting them,” said Tomana.

The State on Wednesday called one Precious Nyasha Matare, a Central Intelligence Organization (CIO) operative, who works as a typist.

Matare told the court she was summoned by the police in Mutare soon after Hitschmann’s arrest on March 6, 2006, to assist them download the emails from Hitschmann’s laptop. The laptop is among the items which are being held by the State as exhibits.

On her part, Matare said she found Hitschmann in the office of the then Officer Commanding Manicaland Province, Senior Assistant Commissioner Ronald Muderedzwa. She says she was asked to print the emails following directions from Hitschmann, who was in handcuffs and leg irons.

Matare told the court she recognized the documents when they were produced before her through the email addresses which were there.

“My Lord,” said lead defence counsel, Beatrice Mtetwa, in her submissions,” the witness says that she is a typist. I do not believe that gives her the expertise to give evidence as to the origins of the emails.

“From her emails,” she added, “she clearly does not know the addresses of the various parties and she clearly cannot say the emails came from whom going where.

“The witness says she found the laptop on the table but does not tell us how the laptop came to be there.

“What was done by persons from the President’s office without following the proper procedure cannot be ruled admissible. My Lord, there can be nothing independent about emails that were printed in the same unfree circumstances as the other statements.

“This is particularly so, My Lord, as Hitschmann has already said that such emails were shown to him and does not know their origins.”

Mtetwa further contends the police should produce expert evidence to prove the emails were, indeed, an exchange between Hitschmann and Bennett.

“There is nothing, My Lord, which indicates that without a proper foundation and we respectfully submit that they remain prejudicial to the accused,” Said Mtetwa. “We, therefore, remain resolute to their production.”

After both submissions were made, Justice Bhunu reserved his judgement to Wednesday February 3, 2010.

Should Bhunu rule against the production of the emails, the State’s case will further crumble. The emails have become the last piece of evidence at the disposal of the State as it seeks to link Bennett to the offence, which carries a death penalty in the case of a conviction.

After adjournment the previous day, the matter opened Wednesday with Hitschmann telling the court that he was not the owner of all the weapons produced as exhibits in court.

Hitschmann further said the exhibits produced in Bennett’s trial were half of those produced in his own trial. In that case Hitschmann was acquitted on that particular charge but convicted on a lesser one.

The firearms dealer further said he did not know why the State summary in his case was different from that of Bennett, who is being charged of the same offence.

He also told the court that during his own trial in 2006 there was no mention of any email communication and bank deposits allegedly made by Bennett and that police did not seek his assistance in accessing his Mozambican account which he says is for his normal business transactions in the neighbouring country.

Hitschmann told the court he was not present when the emails were being downloaded from his laptop. He said he did not know the origins of a CD or of a desktop computer hard drive that were allegedly recovered from him.

The court also heard that the police did not highlight in their investigation log that they had recovered a laptop from him or that they had downloaded any emails, something that is a requirement during police investigations.

Asked if this was normal, Hitschmann, a former police officer responded, “It is not only abnormal, it is also dangerous, My Lord.”

Hitschmann also told the court he did not consider himself a hostile witness as has already been declared. He said he had tried to cooperate with the state.

Hitschmann further said he was only made aware he was being treated as co-accused with Bennett in October 2009 when he was being sub-poenaed to testify in the MDC official’s trial.

“It was never very clear whether I was the chief conspirator or deputy chief conspirator,” he said. “What I know is that I was not a conspirator.”

Additional Reporting: The Zimbabwe Times

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Posted by Dave Fish Eagle on January 27, 2010. Filed under Local News. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.