THE State V ROY Leslie Bennnet

HH 33-2010
                                                                                     CRB 178/09

THE STATE
versus
ROY LESLIE BENNNET


HIGH COURT OF ZIMBABWE
BHUNU J
HARARE 28th February 2009 and 5 February 2010


ASSESSORS: 1. Mr. Musengezi


Mr Tomana, Mrs Ziyambe and Mr Mutangadura, for the State
Mrs Mtetwa and Mr Maanda, for the Defence

       BHUNU J: The accused is charged with various counts involving terrorism, sabotage
and illegal possession of firearms in contravention of the Public Order and Security Act
[Cap11:17] and the Firearms Act [Cap10:09].
       As the trial progressed the state called one Precious Matare. This witness testified as to
how she down loaded e – mails from Hitschmann's laptop which tend to implicate the accused.
The e-mails have since been admitted in evidence as exhibit 13. They were admitted for the
purpose of showing that they were downloaded by the witness and not for the truthfulness or
otherwise of their contents.
       In my judgment of the 5th January HH 23-010, I sounded a caution to counsel not to
confuse the weight of evidence with the admissibility of evidence. That caution appears to
have escaped Mrs Mtetwa when she complained bitterly to the Court in the following vain:

       "My Lord it looks like there is a reversal of onus in the manner this matter is
       preceding…

       My Lord there is already a finding of fact before the Court that the e-mails were
       created before the assault took place. This means my lord has accepted that the e-mails
       were created by Hitschmann. That is a finding of fact my Lord. You have already
       found That Hitschmann is a convicted co conspirator. Those are findings of fact that
       my lord has made this morning."

       In admitting the e-mails the Court in its discretion chose to follow the procedure laid
down in the case of S v Banda and others 1990 (3) SA 466 at 506. In that case it was held that
in cases involving allegations of conspiracy, a foundation must be laid by proof, sufficient
evidence in the opinion of the Court to establish prima facie the fact of conspiracy. In that case
FRIEDMAN J made the pertinent observation that:
2
HH 33-2010
CRB 178/09

       "A foundation must be laid down by proof, sufficient evidence in the opinion of the
       Court to establish prima facie the fact of conspiracy between the accused and then
       every act and declaration of each member of the conspiracy in pursuance of the
       original concerted plan, and with reference to the common objects, in contemplation of
       the law, the act and declaration of them all and is original evidence against each of
       them. R v Heyne and Others (supra).

       It does not matter whether the evidence is admitted before a conspiracy is proved,
       provided, however, that a conspiracy is eventually proved.

       In R v Levy 1929 AD 312, certain schedules and other records kept by one accused
       were admitted before the proof of the conspiracy. CURLEWIS JA. At 326 – 8 said:

       “… (Sometimes for the sake of convenience, the acts or declarations of one are
       admitted in evidence before proof is given of the conspiracy, the prosecutor,
       undertaking to furnish such proof in a subsequent stage of the case. But such mode of
       proceeding rests in the discretion of the judge… The schedules were therefore in my
       opinion, properly admitted… as acts done in the course of the acting and a step in the
       proof of common purpose. Of course, if it were found at the conclusion of the case for
       the prosecution that a common purpose had not been established, then the schedules
       would have to be rejected and could not be regarded as evidence against the accused"

       The same remarks apply to my admission of the facts and e-mails as tendered by the
State at this stage. The Court's acceptance of the e-mails is contingent upon the State proving
that they constitute genuine communication between the alleged conspirators, that is to say, the
accused and Hitschmann.
       That being the case, the question of reversal of onus does not arise. The state still bears
the burden of proving what it alleges beyond reasonable doubt. In particular the state has to
prove that the e-mails accepted by the Court comprise genuine communication between the
alleged conspirators regarding the execution of the crime
        Of course, if it were found at the conclusion of the trial that a common purpose has not
been established beyond reasonable doubt, I will have no option but to reject the e-mails and
the facts upon which they were admitted.
       Thus the admission of the e-mails constitutes a step by the state towards discharging its
burden of proof.
       Now, it appears that the defence labouring under the erroneous belief that the
admission of the e-mails constitutes a reversal of the onus of proof has now embarked on a
spirited endeavour to prove its defence. In its mistaken belief the defence has sought to rely on
a fake e-mail it deliberately created in the name of the Attorney General Mr Tomana. In cross
                                                                                               3
                                                                                      HH 33-2010
                                                                                      CRB 178/09

examining the State witness the defence has vehemently refused to let the prosecution have
sight of the fake e-mail
       It appears to me that the refusal by the defence to disclose the contents of the fake e-
mail is a deliberate attempt to unfairly emasculate the State and preempt any objections which
the State might have regarding the use of the fake e-mail in this trial. If there is anything
objectionable in the fake e-mail there will be no point in objecting to its use after the
proverbial horses have bolted, so to speak.
       The e-mail which the defence seeks to rely on is deferent from that relied upon by the
state in two material respects. Firstly, the state e-mail is a questioned document. Its
authenticity is in issue. There is therefore need to prove its authenticity or otherwise.
       On the other hand the defence e-mail is not a questioned document; it is a known fake
document. A known fake document is one which undoubtedly tells a lie about itself There is
no need to prove its falsity or otherwise. This is for the simple but good reason that it is an
established fact that it is a false document.
       Secondly, the state e-mail does not seek to embroil or incorporate the name of the
defence counsel into the proceedings as part of the State's evidence against the accused.
       On the other hand the defence e-mail deliberately seeks to embroil the Attorney
General's name into the evidence based on false facts. For that reason I consider it highly
improper if not unethical for defence counsel to use the Attorney General's name in a false
document while at the same time denying him sight of the fake document so that he can not
take appropriate and timely action regarding the use of a document which admittedly contains
false information concerning him or his office.
       I have said time and again in the course of this trial that a criminal trial is not a game of
chance or hide and seek where one party seeks to take advantage of the other by deliberately
concealing facts or evidence.
        It appears to me an abuse of process for the defence to deliberately cite the Attorney
General or his office in a fake document which has no bearing on him or his office and then
denying him sight of the document before it is used against the state case.
       For those reasons I hold that it is inappropriate and not permissible to use the Attorney
General's name or office in a false document with the object of proving the defence case.
4
HH 33-2010
CRB 178/09

       Counsel for the defence has disclosed to the court that the purpose of seeking to use the
false e-mail is to prove that a fake e-mail can be made anywhere in the world and therefore
exhibit 13 is a fake e-mail which could have been made anywhere in the world.
       With respect it appears to me that counsel for the defence is missing the point. The
mere fact that a fake e-mail can be created anywhere in the world does not necessarily mean
that exhibit 13 is a fake document. For instance if the defence were to allege that the guns
before this Court are toy guns, the mere fact that toy guns can be manufactured anywhere in
the world is no proof that the guns before us are toys.
       By the same token, the mere fact that genuine e-mails can be created anywhere in the
world is no proof that exhibit 13 is a genuine document.
       My understanding of the rules of procedure is that the crisp issue before us is the
authenticity of exhibit 13. Once the defence has alleged that the e-mails are fake documents
the state bears the burden of proving their authenticity beyond reasonable doubt. If however,
the defence wants to assume the responsibility of proving that the e-mails are in fact forgeries
they are free to do so, but what happens if they fail to prove what they allege?
       This witness has openly told this Court that she is not an expert witness. She does not
know how fake e-mails are created. She gave no evidence concerning the authenticity or
otherwise of the e-mails. She did not read them. All what she did was to extract the e-mails
from the laptop. Her evidence has no bearing whatsoever on the authenticity or otherwise of
the e-mails before us.
       The purpose of cross-examination is to seek clarification, to dispute the veracity of the
witness' evidence or to attack her credibility. Common sense dictates that there is nothing to
clarify or dispute when she has made it clear that she has no evidence to give concerning the
authenticity of the e-mails. There is equally no basis for attacking the witness's credibility
based on evidence she has not given. It is therefore unfair and inappropriate to confront her
with a fake document with the object of establishing that a different document is a forgery.
       While under cross-examination counsel is allowed a wide berth but that is no license to
quiz the witness on evidence that she has not given and has no knowledge of the same. That
can only amount to harassment of the witness without providing any probative value to the
evidence.
       The Attorney General is not a witness to these proceedings. That being the case,
deliberately citing his name or office in a false document might have the effect of forcing him
                                                                                            5
                                                                                   HH 33-2010
                                                                                   CRB 178/09

to give evidence in rebuttal. This is wholly inappropriate considering that it is common cause
that the defence e-mail is infact a false document. The Attorney General cannot be both
prosecutor and witness in the same case.
       The deference is however free to confront any witness who gives any evidence
concerning the authenticity of exhibit 13 without incorporating the Attorney General's name or
his office in a false document.
       I accordingly hold that it is inadmissible to question the witness Ms Matare on the basis
of the fake e-mail presented to her by defence counsel.




The Attorney General's Office, the States legal practitioners
Mutetwa and Nyambirai, the accused's legal practitioners.