Tomana was given an opportunity to cross-examine Hitschmann after High Court Judge Justice Chinembiri Bhunu declared him a hostile witness.
Immediately after the impeachment, Tomana began cross-examining Hitschmann.
On several instances during the course of the cross-examination this week Hitschmann would refute the AG’s assertions saying: “Do not put words in my mouth. I never said that Your Honour. The record can speak to that.”
An earlier ruling that the AG could not ask questions or make reference to any of the statements or confessions allegedly made by Hitschmann, made Tomana’s task a very difficult one.
Section 259 of the Criminal Procedure and Evidence Act provides that confession is not admissible against other persons. The court also found that the statements that Hitschmann made to the police “had not been properly warned and cautioned”.
During cross-examination Hitschmann denied Bennett ever at any stage possessed the weapons recovered from his residence or that they were involved in illegal dealings.
He also denied that Bennett had deposited funds into his offshore account with a Mozambican bank.
On Wednesday the state brought in another witness, Precious Nyasha Matare, a typist from the President’s Office in Mutare, to testify that she printed the e-mails that allegedly implicated Bennett.
She told the court that she was called in to print the e-mails from Hitschmann’s laptop at Senior Assistant Commissioner Ronald Muderedzwa’s office.
Tomana then sought to produce the e-mails in court as evidence but was stopped in his tracks by the defence team led by Beatrice Mtetwa on the grounds that they were inadmissible.
“Hitschmann has made it very clear that such e-mails were shown to him but their origins were not known,” Mtetwa said. “My Lord, there can be no question that printing of e-mails cannot be regarded as oral evidence as my learned friend has sought to do,” she said, adding that Matare was not an information technology expert and could not know the origins of the e-mails.
“There is absolutely nothing that makes those e-mails admissible in court through this witness. The witness says she is a typist, and I do not believe that gives her the necessary expertise to give evidence on the origins of those e-mails. From her evidence, she clearly does not know the addresses of the various parties involved,” argued Mtetwa.
But Tomana was adamant the e-mails should be used as evidence in court arguing that Hitschmann had admitted that the laptop that is being used as an exhibit belonged to him.
“The admissibility of these e-mails is clearly covered by Section 281 of the Criminal Procedure and Evidence Act,” Tomana said. “The e-mails should be accepted as exhibit number 13. The state seeks to rely on those e-mails to prove that an offence was committed by the accused (Bennett),” he said.
“The e-mails stand alone and they are not confessions or statements made by this witness,” he said.
Justice Bhunu reserved his ruling on whether e-mails allegedly printed on Hitschmann’s laptop in 2006 should be used as evidence in the ongoing treason trial.