BHUNU J: This trial commenced with two assessors Mr. Musengezi and Mr.
Chivanda. Mr. Chivanda unfortunately got injured
during the course of the trial in a road traffic accident such that he was unable to continue with the trial. Both the
prosecution and the defence elected to proceed with the trial with only one
assessor. That being the case, I directed in terms of s 8 (1) and (2) of the
High Court Act [Cap 7:06] that the
trial may proceed without the injured assessor. The net effect of that
direction is that the verdict of the Court
must be unanimous otherwise there has to be a retrial in terms of s 8 (3) (b)
of the Act.
I now turn to consider the matter on the merits at the close of the
state case following an application for
discharge at the close of the state case in terms of s 198 (3) of the Criminal
Procedure and Evidence Act [Cap 9:071 The section
provides as follows:
“(3) If
at the close or 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 accused is charged with possession of weaponry for
insurgency, banditry, sabotage, or terrorism in
contravention of s 10 (1) of the Public Order and Security Act [Cap 11: 17] Arising
from that charge are alternative charges of:
a) Possession of dangerous weapons in contravention of section 11 (1) of
the Public Order and Security Act [Cap 11: 17].or
b) Unlawful possession of prohibited firearms In contravention of s 24
(1) of the firearms Act [Cap 10:091 or
c) Unlawful
possession of firearms in
contravention of section 4 of the firearms Act [Cap 10:09]
In the second count he is charged with incitement
to commit insurgency in contravention of section 6 of the Public Order and Security Act [Cap 11: 17].
Undoubtedly
these are very serious offences which have a bearing on the security of the
state and a question of life and death for the accused. In that case, the Court
is duty bound to consider the evidence with convenient speed and due diligence.
The state alleges that during the period extending
from sometime between 2002 and 2006 the, accused acting in common purpose and consort with one Michael Peter
Hitschmann a registered car dealer and former police officer
connived to unlawfully depose the lawful government of Zimbabwe through acts of
insurgence, banditry, sabotage and terrorism. To this end the two allegedly
conspired to unlawfully purchase, acquire and
possess arms of war and other military equipment. The accused is said to have been the main financier of the whole
criminal enterprise whereas Hitschmann doubled up as chief organizer and
executioner of the same.
1n
the prosecution of their criminal enterprise the two are alleged to have
targeted a microwave link and police water cannon trucks for destruction as
part and parcel of the grant plan to unlawfully depose the lawful government of
Zimbabwe.
The
facts giving rise to the allegations against the accused are to a large extent
common cause. The undisputed facts are that on 6 March 2006 acting on
information Chief Superintendent Sipho James Makone
and other police officers accompanied by members of the central intelligence
organization arrested and searched Michael Peter Hitschmann's person and
premises at number 33 Arcadia, Tiger Groove, Mutare on allegations of illegal
possession of arms of war.
It
is a matter of common cause and an established fact that during the search a
large quantity of an assortment of arms of
war, ammunition and other military equipment were recovered from Hitschmann's
person and premises. These comprised among others AK and FN rifles, MP5 and Uzi
submachine guns, grenades, illuminating flares, a tear smoke launcher and
canisters,
It is trite in our law that what is not in dispute
need not be proved. I shall therefore not waste any time dwelling on the
evidence of state witnesses geared towards establishing that Hitschmann was in fact found in possession of the bulk of weapons and
ammunition and military gadgets produced in Court as this is a foregone conclusion. I shall therefore dwell mostly
on areas of dispute and controversy.
Hitschmann's
laptop computer was also recovered from his house on the 9th of March 2006. The
state now alleges that incriminating evidence
in the form of e-mails was found and downloaded from the computer, a
fact which is hotly contested by the defence.
During the course of investigations Hitschmann made statements and
indications to the security authorities.
There is no direct evidence which links the accused to the commission of any of
the offences. The evidence proffered
by the state which tends to link the accused to the commission of the alleged
offences is to a large extent circumstantial. That evidence comprises:
a) Michael Peter Hitschmann's warned and cautioned statements
and indications.
b) Michael
Peter Hitschmann's viva voce evidence in Court.
c) Michael
Peter Hitschmann's bank account in Manica Mozambique.
d) Michael
Peter Hitschmann's laptop computer.
e) Michael
Peter Hitschmann's illegal possession of military weapons, ammunition and
gadgets.
1. Michael Peter Hitschmann's
warned and cautioned statements and indications
During the course of the trial I ruled the statements and indications to
be inadmissible against the accused in judgment HH-46-10. I
find myself constrained to repeat what I said in that judgment to the effect
that:
"While under detention
the witness made certain written statements and indications. On 7 March 2006 he made
a hand written statement at Adams Barracks and on 11 March 2006 he made a
typewritten affidavit at CID offices. The witness also made indications which
were captured on video tape at Adams Barracks. In all those statements and
indications he confessed and admitted having committed the offence in collusion
with others including the accused. He implicated
the accused alleging that he was responsible for financing the whole criminal enterprise
to violently effect regime change through force of arms.
The witness admitted in open court that he made
the said statements and indications to state authorities.
He however placed the admissibility of the statements and indications in issue saying
that they were involuntarily extracted from him through torture under
unfriendly and hostile circumstances.
It is common cause that when the witness made
the said statements and indications he had not been properly warned and cautioned. The handwritten statement was not
signed or witnessed by anyone. The
witness told the Court that his tormentors were drunk and disorderly such that in
their drunken state they omitted to make him sign the statement. Having noted
the omission, he then deliberately refrained from signing it, signifying his
lack of free volition.
I now turn to consider the admissibility of the
previous inconsistent statements upon which the state relies in its bid to
impeach its own witness. It is not in dispute that both statements and indications were made at the instance of state
authorities. It is a legal requirement that the police must properly warn and caution an accused person before asking
him to make a statement for production in Court. It is also common cause
that the witness was not properly warned and cautioned according to law before
making the statements.
That being the case, the
statements were obviously inadmissible against the witness this explains why they
were not used at his own trial. It follows as a matter of common sense that if the statements and indications were inadmissible
against the witness they were equally inadmissible against his alleged
accomplice That is to say the accused.
Having examined the statements and indications
in question l have no doubt that they are not ordinary
witness' statements. They are in fact confessions made by the witness not in
his capacity as a witness but as an accused person pending his own
prosecution.
Section 259 of the Criminal Procedure and Evidence Act [Cap
9: 07] provides that:
"259 Confession not admissible against other
persons
No
confession made by any person shall be admissible as evidence against any other
person."
The section is couched in simple
clear language such that it needs no further elucidation. It constitutes a
prohibition thereby making its provisions peremptory and absolute. I
accordingly hold that the statements and indications in question if tendered as
evidence will be inadmissible against the accused."
2. Michael Peter Hitschmann's Viva Voce Evidence.
It is needless to say that the state case hinged on
Peter Michael Hitschmann's evidence. According
to the summary of the state case he was supposed to be the state's star
witness. He was supposed to be the only state witness with direct
evidence implicating the accused. He was expected to implicate the accused in his capacity as an accomplice witness. This
witness was expected to tell the court
how he connived with the accused to depose the lawful government of Zimbabwe
through force and violence.
This witness
however gave his evidence with the greatest reluctance. As a result he was
openly hostile to the state case leading to his impeachment
Upon being
served with a subpoena to give evidence as a state witness in these proceedings
he responded by delivering to the Attorney General an affidavit in November
2009. In that affidavit he absolves the accused of any wrong doing or
complicity in the commission of the main charges or any related offences. In
paragraph 12 he had this to say:
"Consequently therefore, and as the police
are fully aware there is no relevant testimony I can give in respect of the charges
now being brought against Mr. Leslie Roy Bennett who was not involved in my
firearms business or in any dealings I had with firearms. In any event I do not
believe that I have been validly sub-poenaed
and unless advised to the contrary, I do not intend to appear in Court
on 9 November 2009."
Despite
his protests the witness had no option but to attend and give evidence as a
state witness at the accused's trial. It is
also common cause that the Attorney General called the witness to give evidence
with the full knowledge that he was likely to give evidence adverse to the
state case.
Not surprisingly when he appeared in Court, the witness gave evidence
which is unfavourable to the state
case which heavily leans in favour of the accused. He denied that the accused
had any hand in the commission of the offences as alleged or at
all. He steadfastly stuck to the same story he had told the Court at his own trial. He repeated his testimony to the effect that
at the material time government was encouraging farmers to surrender
their guns to the police. Some farmers were however reluctant to surrender
their guns and other military paraphernalia directly to the police. They chose
to use him as a conduit for conveying the
equipment to the police. This explains how he came to be in possession of the
arms of war and related military gadgets.
That explanation earned him an acquittal on the main charge but was
convicted on the lesser charge of being
found in possession of offensive dangerous weapons as he was and is still
admitting possession of the dangerous weapons in contravention
of s 13 (1) of POSA
CHITAKUNYE J's verdict was
that:
"From the above, this
Court is of the view that the accused (Hitschmann) cannot be found guilty
of the main charge. He (is) found not
guilty and acquitted on the main charge. He is instead
found guilty of the possession of dangerous weapons in contravention of Section
13 (1) of POSA”
Hitschmann was then sentenced to 4 years imprisonment of which 1 year
was suspended on appropriate conditions. He
has since completed serving the prison term although he has an appeal pending
in the Supreme Court.
Despite being subjected to a through searching and skilful cross
examination by state counsel this witness
stuck to his guns. He never wavered or altered his evidence. Throughout his
evidence in chief and cross-examination he
said nothing which may be construed as remotely implicating the accused or helpful to the state case. He admitted
ownership of the laptop from which the incriminating evidence was downloaded
but denied their authenticity labeling them fraudulent fabrications.
3. Michael Peter Hitschmann's
Bank Account in Manica Mozambique.
The back bone and thrust of the state case is that the accused was the
chief financier of the unlawful conspiracy
to depose the lawful government of Zimbabwe. In its summary of the
state case the state alleged that one of its
witnesses Chief Superintendent Sipho James Makone had in the course of investigations managed to obtain a bank statement
in the name of Peter Michael Hitschmann showing a
deposit of US$5000.00 meant to finance the illegal scheme.
The state was however unable to produce the alleged bank statement by
the closure of the state case. Chief
superintendent Sipho James Makobane in fact contradicted the state case in some
material respect when he denied that he had managed to obtain the bank
statement as alleged by the state. On the
contrary it was his testimony that he had failed to obtain the alleged bank
statement. He was still waiting for the
bank statement. The witness was in fact surprised that the trial had commenced
without the alleged bank statement having been obtained.
Apart from
the state's failure to produce the alleged bank statement no other credible
evidence whatsoever was led tending to show
that the accused may have financed the illegal scheme to unlawfully depose the lawful government of Zimbabwe. Above
all its discredited impeached star witness
one Michael Peter Hitschmann flatly denied that the accused in any way financed
the alleged conspiracy.
4. Michael Peter Hitschmann's Laptop Computer.
It
is common cause that during the course of investigations the police backed up
by other state security agents recovered
among other things a laptop computer belongng to Michael Peter Hitschmann. It is the state case that the police
with the aid of one Precious Nyasha Matare a typist in the ministry of State for National Security in The
President's Office downloaded e-mails from the laptop implicating the
accused. Hitschmann admitted in open Court that the laptop belonged to him but
disputed the authenticity of the e-mails.
Likewise
the defence challenged the authenticity of the e-mails saying that they were fraudulently manufactured by state agents in a
bid to falsely implicate the accused. That being the case the state bore the onus of establishing the
authenticity of the e-mails. To that end it called Precious Nyasha
Matare the typist who downloaded the e-mails and Perekayi Denshard Mutsetse in
his capacity as an expert witness as its main witnesses on this vital issue.
His status, experience, academic and professional' qualifications were however
hotly contested by the defence.
Ms Marare's evidence was to the
effect that on 6 March 2006 she was summoned to Senior Assistant Commissioner Muderedzwa's office at Murahwa building. when she
turned up at the office she was asked to assist with printing documents
from a laptop because those present had failed to print the required documents
from the machine.
She said that Hitschmann
helped her by pointing out information she was required to print She then
printed the e-mails that had been pointed out by Hitschmann. She recognized and
identified the e-mails before the Court as
the ones she had printed out by their e-mail addresses. All what she did was to
print as she had found the laptop already open and connected to the internet.
She could not identify the
laptop in Court with certainty as the one she had printed the e-mails from. All
what she could say was that it was similar because she was not shown its serial
numbers.
Ms Matare
appears to be mistaken that she printed the e-mails on the 6th March
2006. No printing took
place on that date because the laptop had not yet been recovered. That is the
date of Hitschmann's arrest. The laptop was only recovered on 9 March 2006.
Although the witness printed the e-mails in March 2006 the police did not record any statement from
her until about 3 years later in February 2009. This inordinate delay is
extraordinary and only serves to explain her faulty memory.
The defence disputed that
Hitschmann helped her by pointing out the e-mails she printed from the laptop.
Although she is now adamant that he did, she did not say so in her written
statement to the police. Hitschmann denied
that he helped her at all. Apart from this blemish or inconsistency this witness'
evidence was generally satisfactory and her demeanor beyond reproach.
She testified that she merely printed the e-mails, she did not read
them. She denied that she was a computer expert and professed ignorance as to
how computer documents may be faked or forged.
Perekayi Denchard Mutsetse professed to be a computer expert. Under
cross examination it however turned out that he merely
scraped through his '0' levels before obtaining a few relevant certificates
which he was at pains to elevate to the status of diplomas.
It was his testimony that his professional qualifications were as
follows:
1. Part one of City and Guilds
certificate in telecommunications.
2. A University of Zimbabwe
Certificate in Data Communication obtained in 2003
3. An Africa University CCNA
certificate obtained in 2006.
He then
joined Africom in 1999 as a technician rising to his current post of provincial
engineer. His responsibilities as provincial
engineer entail giving support and implementing new projects. He once worked
as cables technician for PTC.
The defence
disputed his qualifications and challenged him to produce the relevant
certificates. He was however, unable to produce the relevant
certificates by closure of the state case.
His evidence was to the effect
that it was virtually impossible to fake e-mail documents or reverse the date and time printed thereon by the mail server. That could only be
done by the service provider. It was his evidence that he had
examined the disputed e-mails and concluded that they were genuine because:
1. They reflected the name of the
service provider which is hashmail. com
2.
The bottom beach bore the characteristics https/
3.
The e- mails bore the
characteristics "From" and "To" denoting the
name of the sender and the receiver.
He then vouched that any e-mail which bore those characteristics was
genuine. Apart from the above tests he professed
ignorance of any other technical or scientific methods which may be used to verify the authenticity of e-mails. He had never heard of computer
fraudsters called hackers or computer forensic experts who use
scientific methods to determine the authenticity of documents generated
from computers.
The depth of his ignorance
concerning these matters as exposed during cross examination was amazing, to say the least considering that he professes himself to be a
computer expert. I am constrained to repeat what he said under cross
examination.
Q. 'Are you aware of any other tools and
software that can be used to track and verify the authenticity of e-mails.?
A. There is no such software used to trace
the genuiness or otherwise of e-mails. As you print the website
tells you where the e-mail is from.
Q. Do you know what computer forensic experts
use to determine the authenticity of an e-mail correspondence?
A. There are no such people like forensic personnel.
Q. You are saying there are no computer
forensic experts who check computer
faults and check out employee abuse
of computers? For instance, in South
Africa two years ago they had false e-mails
that were tracked 'by Peter House, you do not know about that?
A May be
they are
in South Africa as you say
but not in Zimbabwe.
Q You yourself are unable to, despite
being an expert, to use that software?
A. This document exhibit 13 came as printed
copies and not soft copies and we did not use any software.
Q. You did not use any known computer
forensic tools and software to determine the veracity of those e-mails.
A. We handle papers as they come
Q. The question is you did not use any of those
tools.
A. If the computer forensic people do exist
may be they exist in South
Africa not here.
Q. Are you aware of software called EnCase
used by computer forensic experts?
A. Where did that originate from? Like I
said we are not in the forensic department and we do not know about that and as
far as I know we do not have such software in Zimbabwe.
Q. You also obviously do not know another
software tool called forensic tool kit called FTK. do you know about it.
A. I am not into forensic.
Q. So we can safely conclude therefore that
you did not do any forensic investigations of where those e-mails might have
come from, where they were going, whether they were authentic or not.
A. Like I said I am not in the forensic
department may be you are.
Q. Are you aware Mr. Mutsetse the history of
the hard drive can actually be determined using those tools.
A. I am not in the forensic department..."
Using his mode of determining the genuiness of e-mails Mr. Mutsetse made
a fatal error when he identified a fake email
that had been created in Court as being genuine. Having previously steadfastly
testified that the date and time inscribed by the mail server could not be
altered or reversed Mr. Mutsetse had to eat humble pie when it was demonstrated
in open Court that this could be done
He also told the
court that he attempted to send an e-mail to the address reflected on the
e-mails but it bounced back because the address had been shut
down.
Communication is a two way
process. In this case it is self evident that there is no evidence tending to show that any of the e-mails in question was either sent or
received by the accused. It appears that no timeous
investigations were made to trace the source and destination of the e-mails in 2006 when the offences were allegedly committed. It seems no
investigations were carried out to ascertain whether the accused
owned or possessed a computer to try and establish whether or not he had send or
received any of the disputed e-mails.
In his testimony Mr. Mutsetse made it clear that
he was only contacted by the police in 2009 about 3 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.
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.
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 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 d id 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 traumatized under cross examination.
5. Michael
Peter Hitschmann's illegal possession
of military weapons, ammunition and gadgets.
It is a proven established fact that Michael Peter Hitschmann was found
in possession of a huge arsenal of military
weapons, ammunition and gadgets. It is also common cause that he has since been convicted of the illegal possession of the same.
No cogent evidence was however led to establish that the accused had either physical or legal possession of the illegal
weaponry. He did not have the detention, custody or control of the
illegal arms of war and other military paraphernalia.
Conclusion.
In summary it is
self evident that the state at the close of its case had failed to link the
accused to the commission of any of the offences charged or
any competent verdict arising there from because:
1. a) Its main state witness Michael Peter Hitschmann
turned hostile to the state case leading to his impeachment.
b) )His
discredited evidence was therefore of no benefit to the state case as he did
not implicate the accused at all but supported the defence case.
2. The supposed expert witness Perekayi Denshard Mutsetse turned
out to be an unreliable witness whose
evidence was proven to be dubious and erroneous. As a result the accused
could not scientifically or otherwise be linked to the commission of the
offence through the recovered e-mails. There was therefore, no nexus between an
the commission of the offences.
3. The accused could not be linked to the
commission of any of the offences through the confessions of his alleged co
conspirator because:
a)
Of improper investigation tactics and
procedures and
b)
By operation of law which prohibits the confession of
one accused to be used against the other.
In
conclusion I must commend the state for having put up a brave fight under very
difficult circumstances in defence and preservation of a constitutionally
elected government.
We however operate in an
adversarial legal system where a criminal trial is akin to a contest where
judges and assessors are mere referees or umpires. One cannot therefore, take a
dive at the centre circle and expect the referee to award a penalty.
Like in most contests a team
cannot be allowed to advance to the next stage unless it performs well at the preliminary stage. That is the spirit
in which s 198 (3) of the Criminal Procedure and Evidence Act [Cap
9:07] was crafted.
Having carefully considered the
above findings of fact and law, we carne to the unanimous conclusion that the state has failed to prove a
prima facie case against the accused on a balance of probabilities
thereby entitling him to his acquittal at the close of the state case.
The accused is accordingly found not guilty and
acquitted at the close of the state case.
The Attorney General's Office,
the
States legal practitioners.
Mutetwa and Nyambirai, the accused's legal practitioners.
