Before: CHIDYAUSIKU CJ
The respondent in this case (whom
I shall refer to as "the accused" hereafter for
convenience) was charged in the High Court firstly with possession of
weaponry with the intention to commit an act of insurgency, banditry,
sabotage or terrorism in contravention of section 10(1) of the Public
Order and Security Act [Chapter
11:17]. Arising
from that charge were alternative charges of –
(a) possession of dangerous weapons in contravention of section 11(1)
of the Public Order and Security Act; or
(b) unlawful possession of
prohibited firearms in contravention of section 24(1)(d) of the
Firearms Act [Chapter
10:09]; or
(c) unlawful possession of firearms in contravention of section 4 of
the Firearms Act.
On the second count, the accused was charged with incitement to
commit, or conspiracy to commit, an act of insurgency in
contravention of section 6 of the Public Order and Security Act.
At the close of the State case,
the accused applied for a discharge or acquittal in terms of section
198(3) of the Criminal Procedure and Evidence Act [Chapter
9:07] (hereinafter
referred to as "the Act"), which provides that:
"(3) If at the close of the case for the prosecution the court
considers that there is no evidence that the accused committed the
offence charged in the indictment, summons or charge, or any other
offence of which he might be convicted thereon, it shall return a
verdict of not guilty."
The application found favour with
the court a
quo and the accused
was found not guilty and discharged at the close of the State case.
The Attorney-General was dissatisfied with the outcome and now
applies for leave to appeal against that finding.
He makes this application in terms of section 198(4) of the, which
provides in relevant part as follows:
"(4) If the Attorney-General is dissatisfied with a decision in
terms of subsection (3), he may with the leave of a judge of the
Supreme Court appeal against such decision to the Supreme Court…".
In determining whether such leave should be granted or refused, the
guiding factor is the prospect of success on appeal.
Thus, if the appeal has prospects of success the leave to appeal
should be granted, but if the appeal has no prospects of success such
leave should be refused.
I will now examine the Attorney-General's prospects of success on
appeal.
The proposed grounds of appeal are set out in the proposed Notice of
Appeal attached to this application. They read:
"1. The learned trial court
erred at law when it considered the pieces of evidence in isolation
from the other thereby failing to take a holistic assessment of all
evidence the totality of which established a prima
facie case against
the accused person.
In other words, the existence of a bank account in the name of Peter
Michael Hitschmann, the e-mail communication between Hitschmann and
Roy Bennett as well as the fact that the said e-mails contain
messages pointing to the funding of firearms acquisition all points
to a conspiracy between the said Hitschmann and the respondent.
2. The learned trial court misdirected itself when it ruled that the
authenticity of the e-mail printouts was solely dependent on the
credibility of a computer expert when in fact the circumstances
surrounding the discovery of the said e-mails was the most
fundamental consideration which the learned trial court did not even
bother to consider in its evaluation of evidence.
In other words, the court failed to make a finding of fact as to
where those e-mails actually originated. In the context of the said
e-mails having been found in possession of an alleged co-conspirator
Peter Michael Hitschmann, the fact that the latter disputed them
called for the court to consider for a fact whether the e-mails were
concocted or not.
Had the court a
quo approached the
question with a view of making a finding of fact in that respect, the
question of forensic evidence would have been a non-issue since the
court eventually found Nyasha Matare's evidence generally impressive
beyond reproach.
3. The court a
quo misdirected
itself when it reasoned that the police should have investigated
whether Roy Bennett had a computer carrying the said e-mail address
used in the recovered e-mails, when in fact all the witnesses who
testified told the court that Roy Bennett had absconded to South
Africa where he obtained asylum for three years. With the full
knowledge of that fundamental fact, the learned Judge should not have
made that gratuitous finding in favour of the accused who never
disputed absconding at the time Hitschmann was arrested in 2006.
4. The learned trial court erred at law when it found the testimony
of Mutsetse appalling only because he acknowledged lack of knowledge
as to the existence of computer criminals known as hackers without
any tested evidence to the effect that the persons who discovered the
e-mails on the person of Hitschmann are criminals known as hackers.
By so doing, the learned Judge contradicted his earlier finding of
fact that the mere fact that e-mails can be fake does not mean that
the e-mails before the court as exhibit 13 are also fake.
The ultimate finding that the e-mails are not admissible on the basis
that they are capable of being faked was consequently outrageous in
its defiance of logic.
5. The learned judge a
quo made an error
of law when he found that the authenticity of e-mails was predicated
upon computer forensics and scientific detection, whereas the
print-outs (sic)
just like any other document is admissible on the basis of the
credibility of the person who discovered the document.
Where in (sic)
this case the said e-mails were discovered in custody of a
co-conspirator and ultimately admitted as executive statements at
law, their contents should have been interpreted by the court with a
view to find out if they had any link to real facts on the ground
pointing at Roy Bennett as a co-conspirator.
The failure by the court to read and interpret the contents of the
e-mails deprived it of the benefit of meticulously finding the
relevance of other pieces of evidence whose totality affirm the link
of the respondent to the offence.
These are the incitement messages targeting a microwave link at
Melfort near Goromonzi, the confirmation of bank deposits in Manica,
Mozambique, and the fact that Hitschmann actually possessed a myriad
of weaponry ranging from prohibited firearms classified as dangerous
by the Legislature to detonators and explosive devices."
The learned Judge in the court a
quo, in a
meticulous and well reasoned judgment, concluded that the accused had
no case to answer and discharged him at the close of the State case.
I have carefully perused the voluminous record in this case. I am
satisfied that on the evidence led up to the close of the State case,
the learned Judge could not have come to a different conclusion than
he did.
After the learned Judge ruled, quite correctly in my view,
inadmissible the confessions of Hitschmann and the e-mails, there was
literally no evidence linking the accused to the crimes he was
charged with.
In the circumstances, the prospects of success on appeal are
non-existent.
In terms of the Criminal Procedure and Evidence Act, the State is
required to serve on the accused a Summary of the State Case, setting
out the witnesses that it intends to call and a summary of the
evidence that they will give.
Similarly, the defence is required to furnish the State with a
Defence Outline, in terms of which the accused sets out his defence
to the charge and the evidence he intends to lead.
The record reveals that at the close of the State case the State had
not led the evidence it alleged in the State Outline it would lead.
Some of the evidence not led was critical to the linking of the
accused to the offence. This critical evidence for the State was
either ruled inadmissible or the State witnesses told a different
story from that alleged in the Summary of the State Case.
In particular, the viva
voce evidence
of Peter Michael Hitschmann (hereinafter referred to as "Hitschmann")
and Sipho James Makone (hereinafter referred to as "Makone")
differed from the purported evidence set out in the Summary of the
State Case.
This had the effect of destroying the State case. I shall deal with
this aspect of the case later in this judgment.
Before dealing with the evidence in this case, I wish to set out the
law.
The Law
Section 188(3) of the Criminal
Procedure and Evidence Act [Chapter
59] is the
predecessor to the present section 198(3) of the Act, in terms of
which the court a
quo discharge the
accused.
Section188(3) provided as follows:
"(3) If at the close of the
case for the prosecution the court considers that there is no
evidence that the accused committed the offence charged in the
indictment, summons or charge, or any other offence of which he might
be convicted thereon, it may
return a verdict of not guilty." (the underlining is mine)
Section 198(3) is worded in identical terms, except for the
substitution of the underlined word 'may' by the word 'shall'.
The Legislature, in substituting the word 'may' with the word
'shall' evinces the clear intention of the Legislature to remove
the discretion from the court of deciding whether or not an accused
should be placed on his defence in the circumstances set out in
section 198(3) of the Act.
Previous authorities have differed on whether a court has such a
discretion or not. The Legislature has spoken and the dispute
determined beyond doubt.
The law as it stands is that the court is bound to discharge an
accused where it is satisfied that there is no evidence that the
accused committed the offence charged in the indictment, summons or
charge.
What constitutes no evidence that the accused committed the offence
charged in the indictment, summons or charge has been the subject of
interpretation by this Court in a number of cases.
A perusal of those authorities reveals that there is no evidence that
the accused has committed the offence charged in the indictment,
summons or charge in the following circumstances –
(i) Where there is no evidence to
prove the essential elements of the offence (see Attorney-General
v Bvuma and Ano
1987 (2) ZLR 96 (SC) at 110E-G);
(ii) Where there is no evidence
on which a reasonable court, acting carefully, might properly convict
(see Attorney-General
v Mzizi 1991
(2) ZLR 321 (SC) at 322B); and
(iii) Where the evidence adduced
on behalf of the State is so manifestly unreliable that no reasonable
court could safely act on it (see Attorney-General
v Tarwirei 1997
(1) ZLR 575 (S) at 576).
The State agrees with the above proposition. Indeed counsel for the
State cited the above authorities.
The respondent's stance seems to be that the above circumstances are
correct but not exhaustive. However, counsel for the respondent did
not cite any authority setting out any other circumstances.
I will now proceed to examine the evidence.
The Evidence
The main thrust of the
Attorney-General's case is that the court a
quo assessed the
evidence piecemeal and failed to consider the overall effect of the
evidence led.
The contention by the
Attorney-General is that the overall effect of the existence of a
bank account in the name of Hitschmann in Mozambique and the contents
of the e-mails established a prima
facie case against
the accused.
This is the gist of the first ground of appeal set out in the
proposed Notice of Appeal. The contention is enforced in para 4 of
the applicant's statement in support of the application. It reads:
"4. It is submitted that the
Honourable Court a
quo misdirected
itself by assessing evidence in that matter (manner?) to an extent
that the court ultimately assessed pieces of evidence in isolation
thereby failing to adopt a holistic analysis of circumstantial
evidence adduced by the State.
The law surrounding assessment of evidence proves that the trial
court should not adopt a piecemeal approach in evaluating the weight
of evidence.
In
casu, the mere fact
that Sipho James Makone went to Mozambique and confirmed the
existence of the bank account in the name of Peter Michael
Hitschmann, and obtained a bank statement showing deposits confirms
that surely a bank account exists in the name of Hitschmann.
In his testimony, Hitschmann confirmed that he holds a bank account
in Mozambique, although he was at pains to explain why he holds the
bank account in Mozambique. Sipho James Makone stated that he went to
Mozambique not only to verify what Hitschmann himself had pointed out
during interrogation, but to confirm the e-mail communication between
Roy Bennett and Peter Michael Hitschmann.
Makone's testimony can thus not be faltered (faulted?) because he did
not bring the said bank statement from Mozambique."
I do not accept that the court a
quo misdirected
itself by examining different aspects of the evidence separately. In
fact, this is how evidence is generally evaluated.
It is only after individual assessment of evidence that a court
considers the overall effect of that evidence.
It is quite clear from a reading
of the judgment that the learned Judge analysed the evidence
piecemeal, but concluded that the overall effect of the evidence
examined piecemeal was that it failed to establish a prima
facie case
or a case for the accused to answer at the close of the State case.
I will now turn to consider the evidence led, or attempted to be led,
by the State.
(i) Hitschmann's Confession
The State sought to have admitted as evidence a confession by
Hitschmann to the police.
The law on the admissibility of such a statement is very clear. No
confession made by one person shall be evidence against another
person.
Some authorities suggest that a confession that constitutes an
executive statement in a conspiracy charge is admissible against a
co-conspirator.
I shall revert to that aspect of the matter later when I deal with
the admissibility of the e-mails.
It is the e-mails that the State contends are executive statements.
It was not the State's contention that Hitschmann's warned and
cautioned statement was an executive statement.
Hitschmann allegedly made a
confession to the police, in which he stated that the accused was the
provider of the finance with which the illegal weapons were purchased
in furtherance of the common purpose of committing the offences
charged. That statement most probably provided the basis for the
allegations in the State Outline that Hitschmann would state in his
viva
voce evidence that
the accused provided money for the purchase of the weapons.
The record shows that Hitschmann
denied that in his viva
voce evidence.
Hitschmann's confession was ruled
inadmissible by the learned Judge. In doing so, the learned Judge
relied on section 259 of the Criminal Procedure and Evidence Act
[Chapter
9:07], which
provides as follows:
"259
Confession not admissible against other persons
No confession made by any person shall be admissible as evidence
against any other person."
Given the unequivocal language of this section, there is no way the
learned Judge could have admitted as evidence the confession of
Hitschmann.
Indeed, it has not been argued in this application that the court
erred in holding the statements inadmissible.
The probative value of this confession in support of the State case
is non-existent. The learned Judge's conclusion that the confession
of Hitschmann is of no value to the State case cannot but be correct.
Consequently, the probative value of the confession to the State case
is zero.
(ii) Hitschmann's
viva voce evidence
The next aspect of the evidence
of Hitschmann which the learned Judge considered was Hitschmann's
viva
voce evidence.
In court Hitschmann denied that the accused was the main financier of
the criminal conduct alleged against the accused. In effect he denied
any criminal conduct on his part or on the accused's part.
Hitschmann was called as a State witness.
His evidence, if anything, served
to destroy the State case. The fact that Hitschmann was declared a
hostile witness does not assist the State case in any way.
Hitschmann's viva
voce evidence adds
zero to the State case.
(iii) The
e-mails as evidence
The State case was that certain e-mails, exhibit 13, were downloaded
from Hitschmann's computer.
Hitschmann denied that exhibit 13 was downloaded from his computer.
To establish that the e-mails were downloaded from Hitschmann's
computer the State called a Ms Matare, who testified that she did
download some documents from Hitschmann's computer. She did not read
the contents of the documents she downloaded.
The court found her to be a credible witness.
Accepting her evidence to be truthful, its value to the State case is
very limited. It only establishes that certain documents were
downloaded from Hitschmann's computer.
It does not establish that the e-mails, exhibit 13, were genuine or
authentic.
The e-mails were accordingly admitted at that stage of the trial on
condition that the State would establish through other evidence that
exhibit 13 were genuine e-mails from the accused to Hitschmann.
The court simply admitted exhibit 13 at that stage of the proceedings
as documents downloaded from a laptop computer belonging to
Hitschmann.
The court reserved the finding on whether the e-mails were genuine or
not until after the State had led evidence to establish that the
e-mails were genuine e-mails from the accused to Hitschmann.
I pause here to make the following observation.
Whenever the State seeks to
produce a statement as evidence, and the production of that statement
is challenged, it immediately assumes the onus
of proving:
(i) Firstly that the statement was made as a matter of fact by the
alleged author of the statement; and
(ii) Secondly that the legal requirements governing the admissibility
of such a statement have been complied with.
The former is a question of fact and the latter a question of law.
Thus, in
casu, the State had
the onus
to prove that the e-mails were as a matter of fact sent by the
accused. It is only after the State had established that the e-mails
were sent by the accused to Hitschmann that the question of their
admissibility as executive statements would arise.
The State failed to clear the first hurdle of proving as a matter of
fact that the accused sent the e-mails. Consequently, the issue of
their admissibility as executive statements fell away.
As I have already stated, the
court a
quo provisionally
admitted the e-mails on condition their genuineness would be proved
later.
In this regard the learned Judge had this to say at p9 of the
cyclostyled judgment (Judgment No. HH-79-2010):
"As previously stated in my earlier ruling, the court's
admission of the e-mails was conditional upon the State being able to
prove that the questioned e-mails are genuine and authentic. The
State's failure to prove the authenticity of the e-mails
automatically renders the e-mails inadmissible. For that reason alone
the court is not obliged to consider the contents of the e-mails and
the question of interpretation does not arise."
This approach by the court a
quo is supported by
authority. See R
v Victor and Anor
1965 (1) SA 243.
When the State closed its case, the court held that it had not led
credible evidence to establish that the accused had as a matter of
fact sent the e-mails, Exhibit 13, to Hitschmann. The court
accordingly ruled them inadmissible and that they could not be used
as evidence for the State.
Whether the court was correct in excluding the e-mails as evidence is
dependent on whether the court correctly assessed the evidence of
Mutsetse and Makone.
I will now turn to examine
whether the court a
quo was correct in
concluding that the evidence of Mutsetse and Makone did not establish
that the accused was the author of the e-mails.
With the exclusion of the e-mails as evidence, the case for the State
literally collapsed and the State was left with no leg to stand on.
(iv) The evidence of Mr Mutsetse
Perekayi Denshard Mutsetse ("Mutsetse") was called by the
State as an expert witness to establish that the e-mails downloaded
form Hitschmann's computer were authentic and represented
communication between Hitschmann and the accused.
The learned Judge's assessment of Mutsetse as a witness appears on p9
of the cyclostyled judgment:
"In his testimony Mr
Mutsetse made it clear that he was only contacted by the police in
2009, about three years later, when
it was now virtually impossible to trace the origins of the e-mails
in question. That
being the case, he was constrained to make the valid concession under
cross-examination that he could not establish the source or
destination of the disputed e-mails. That concession virtually
destroyed any link between the accused and the questioned e-mails."
(the underlining is mine)
Further down on p9 of his judgment the learned Judge made the
following scathing remarks about this witness:
"It is needless to say that Mr Mutsetse was an appalling
witness. He was argumentative and arrogant in the witness stand. When
he could not stand the heat he asked to be excused saying that he had
some business to attend to in Mozambique. The Court refused to let
him off the hook, pointing out that every other witness had some
business to attend to.
The witness did not take kindly to that ruling and when eventually
excused after exhausting his evidence he had a parting shot for the
Court when he retorted:
'Thank you My Lord for wasting
my time'.
The Court chose to turn a deaf ear to his contemptuous behaviour
seeing that he had been badly bruised and traumatised under
cross-examination."
A reading of the evidence in the record clearly justifies the learned
Judge's assessment of Mutsetse's evidence.
In any event, an Appellate Court is in no better position to assess
the demeanour of a witness. It is only on those rare occasions where
the trial court's finding is not supported by the record that an
Appellate Court interferes with such a finding.
In
casu the record
supports the conclusion of the court.
Apart from this adverse finding on Mutsetse's credibility, his
evidence as an expert witness was demonstrated to be palpably
unreliable.
When an expert gives evidence, it is critical that the expert's
evidence provides the factual basis of his opinion so that the court
can decide whether or not to accept the expert's opinion.
Apart from his dubious qualifications and experience entitling him to
be considered as an expert, the factual basis of Mutsetse's opinion
that the e-mails were sent by the accused to Hitschmann was
demonstrated to be fallacious.
Mutsetse's evidence was that the e-mails, Exhibit 13, had the
following three features:(1) The e-mails reflected the name of the
service provider, which was hashmail.com;(2) The bottom beach bore
the characteristics https/; and
(3) The e-mails bore the characteristics 'From' and 'To'
denoting the names of the sender and the receiver.
Mutsetse's evidence in chief was that once these features are on an
e-mail then the e-mail must be genuine and must be concluded as
having been sent by the person and to the person indicated on the
e-mail.
On this basis he concluded that the e-mails were sent by the accused
to Hitschmann as reflected on the e-mails.
When it was demonstrated in court that an e-mail can bear the above
characteristics and still be fake, he made the concession that his
opinion was inaccurate.
No court could have accepted the opinion of Mutsetse as reliable in
the face of a clear demonstration that the basis of such an opinion
is fallacious and the expert's own admission that his opinion was
based on false premises.
In the result, the court a
quo was correct in
concluding that the evidence of Mutsetse did not establish that the
e-mails were genuine and therefore admissible as executive
statements. Accordingly, the court was entitled to exclude Exhibit 13
as inadmissible evidence.
Once it is accepted that the e-mails were properly excluded as
evidence, there is little else to support the State case.
(v) The evidence of Makone
It was also argued for the State that the evidence of Makone, who was
the investigating officer in this case, taken together with the
contents of the e-mails, confirms that the e-mails were genuine.
I am not persuaded by this submission.
If Makone had given his viva
voce evidence
along the lines suggested in the State Outline, and the court a
quo had found his
evidence credible, the court most probably would have held that the
e-mails were genuine and admitted them as executive statements.
However, the viva
voce evidence of
Makone departed materially from the State Outline.
He stated that he had travelled to Mozambique and that all he was
able to retrieve from Mozambique was the bank account number of
Hitschmann.
Hitschmann never disputed that he had an account in a Mozambican
bank.
Makone never testified that he secured a bank statement showing that
money was ever deposited into Hitschmann's account as alleged in the
e-mails. There was no bank statement of Hitschmann showing that any
money was ever deposited into or withdrawn from that account.
If the State had established by
way of bank statements that $5,000 was deposited into the account of
Hitschmann, then that evidence could be regarded as evidence aliunde
proving that the e-mails were genuine.
Simply establishing that
Hitschmann had a bank account in Mozambique falls far short as
evidence aliunde
proving that the e-mails were genuine.
The difficulties that Makone and the State had in securing such
evidence are understandable. Banks, generally speaking, do not
disclose information on their clients accounts to third parties.
So the effect of all this is that
the bits and pieces of evidence which the Attorney-General sought to
rely on individually amounted to zero in their probative value. When
you add zero to zero ad
infinitum the sum
total is always zero.
The various pieces of evidence led by the State do not, either
separately or cumulatively, constitute evidence on which a reasonable
court, acting carefully, might properly convict the accused.
I accept as correct the
proposition that the court "must not take each circumstance
separately and give the accused the benefit of any reasonable doubt
as to the inference to be drawn from each one so taken" per
DAVIS AJA in R
v De Villiers 1944
AD 493 at 508-509.
I also accept that the court "…
must carefully weigh the cumulative effect of all of them together,
and it is only after it has done so that the accused is entitled to
the benefit of any reasonable doubt which it may have as to whether
the inference of guilt is the only inference which can reasonably be
drawn" as was stated by DAVIS AJA in R
v de Villiers supra
at 509.
In
casu, each of the
circumstances relied upon by the State has very little, if any,
probative value. Taken together, the various circumstances do not
make a case for the accused to answer.
In brief, the Attorney-General was expected to produce evidence to
the effect that the accused was the financier of the illegal purchase
of weapons. There is no admissible and reliable evidence that he did
so.
The confessions of Hitschmann to the police which tended to suggest
that the accused was the financier of the illegal project were ruled
inadmissible and therefore of no value to the State.
The e-mails which implicated the accused were correctly ruled
inadmissible because the State failed to establish as a matter of
fact that the accused sent the e-mails to Hitschmann.
The evidence of Makone did not establish any facts from which any
inference implicating the accused or confirming the e-mails as
genuine could be drawn.
I entertain no doubt that the evidence led does not amount to any
evidence upon which a reasonable court, acting carefully, could
convict the accused. The court may have had the right accused but the
admissible evidence does not add up.
In the result, I agree with the
conclusion of the learned Judge in the court a
quo that this was a
proper case in which a discharge in terms of section 198(3) of the
Criminal Procedure and Evidence Act [Chapter
9:07] was
appropriate.
I see no prospect of the Supreme
Court coming to a conclusion different from that of the court a
quo.
As there are no prospects of
success on appeal, leave to appeal against the decision of the court
a
quo is refused.
Attorney-General's Office,
applicant's legal practitioners
Mtetwa & Nyambirai,
respondent's legal practitioners
