HARARE – High Court Judge Chinembiri Bhunu on Wednesday permitted the state to use controversial email evidence against MDC party treasurer Roy Bennett on trial for plotting to assassinate President Robert Mugabe.

The emails implicating the MDC politician were allegedly printed from key state witness Michael Peter Hitschmann’s laptop in 2006. Defence lawyers had asked Bhunu to reject them saying they could have been forged.

And tempers flared between Attorney General (AG) Johannes Tomana and the defence led by Beatrice Mtetwa, which protested vigorously against the judge’s decision and produced fake emails to prove that the alleged electronic communication between Hitschmann and Bennett could have been forged.

Bhunu will rule on Monday, when the trial resumes, whether Mtetwa’s materials can be used in the trial to cross-examine state witness Precious Nyasha Matare – a typist from the President’s Office in Mutare who claims to have printed Hitschmann’s emails that allegedly implicate Bennett to the terrorism charges.

In his ruling allowing use of the emails, Bhunu said they were vital and relevant to the just determination of the case, given that they had been written before Hitschmann had been tortured by state security agents and could therefore not be regarded as confessions.

“The emails cannot be tainted by the alleged abuse suffered by Hitschmann . . . I am constrained to say that the purpose of a criminal trial is to determine the correct factual position without sweeping anything under the carpet or reducing the trial to a game of wits,” said Bhunu.

“It is plain that the emails in question are relevant and vital to the just determination of this case. I therefore hold that the emails are admissible against the accused (Bennett). It is accordingly ordered that the emails be and hereby admitted in the evidence as exhibit 13.”

But Mtetwa courted the ire of the AG when she started cross-examining Matare to prove that the emails could have been created by anyone, anywhere in the world.

She gave the witness a number of fake emails to read out in court and the first email that Matare read out was from a “Johannes Tomana” which did not go down well with the AG, who accused the defence of “caricaturing” and “demeaning” the person of the AG.

“From the beginning, the person of the Attorney General has been personally dragged into this matter improperly. There is no need to caricature the person of the Attorney General . . . This is embarrassing and must be excluded,” said a visibly angry Tomana objecting to the production of the emails that bear his name.

He added that the defence was “infringing” on the AG’s right to “prosecute without fear, favour and prejudice”.

“If these emails are being used for the purposes of embarrassing us, then they should not pass . . . this trial is not about Tomana,” objected a furious Tomana saying he ought to be respected as the AG during the proceedings.

But an equally angry Mtetwa denied caricaturing the AG, adding that she was only trying to prove that emails can be faked.

“The problem with Mr Tomana is that he believes he is working as the AG. That is very erroneous; when you come in here you work as a state counsel. Full stop. The court must look at Mr Tomana in the (same) manner as me. He must not get preferential treatment. He is at par with me regardless of the fact that I do not have a title before my name,” said Mtetwa.

“Why should the accused (Bennett) not be allowed to place his full defence? We want to show that exhibit 13 (emails purported to have been written by Bennett and Hitschmann) could have been created by anyone, anywhere in the world.”

She said it was deliberate for them to use the name “Johannes Tomana” and those of his subordinates in the fake emails because they know the emails are not theirs.

Prosecutors allege that Hitschmann was paid by Bennett to buy weapons to assassinate President Robert Mugabe. They say Hitschmann implicated Bennett in 2006 when he was arrested after being found in possession of firearms, claims the gun dealer and former policeman denies saying he was tortured into making the confessions during interrogation at a military barracks in March that year.

Bennett, who faces a possible death sentence if convicted in a case that has heightened tensions in Zimbabwe’s fragile coalition government – has pleaded not guilty to the treason charges levelled against him. – ZimOnline