ROY LESLIE BENNNET
HIGH COURT OF ZIMBABWE
HARARE28thFebruary 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 5thJanuary 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:
"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 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.
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 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.