In court papers opposing an application by AG Johannes Tomana for leave to appeal to the Supreme Court against the High Court’s decision to acquit Bennett on Monday, the popular politician said Tomana’s, conduct bordered on criminality.
High Court Judge Chinembiri Bhunu acquitted Bennett on charges of terrorism, banditry, insurgency and trying to overthrow President Robert Mugabe’s government in 2006.
Bennett’s acquittal would have allowed him to join the government as Deputy Agriculture minister. His party and his lawyers say the AG is scraping the bottom of the barrel to keep the senator in the dock.
If the High Court allows Tomana to appeal to the Supreme Court, the case might take years, thereby sustaining President Robert Mugabe’s excuse that Bennett will only join the government if the courts clear him.
Opposing papers submitted to the Supreme Court by Bennett’s lawyers yesterday noted that the state was so desperate to nail him that it had repeated false information in its leave to appeal application.
“The actions of the Attorney-General in this regard are criminal, and potentially very dangerous for the entire populace as it means other fabrications might have succeeded elsewhere,” said Bennett in his opposing papers. “I believe that this honourable court would be entitled to refer the Attorney-General’s conduct for proper investigation with a view to prosecuting whoever included the false information in the state summary.”
Bennett alleges that the state had repeated in its latest application lies about Mozambican bank statements and e-mail communications that are supposed to implicate him as the financier of the terrorism plot.
The state failed to sustain this evidence in the initial trial presided over by Justice Bhunu, yet was using the same “evidence” as a basis for its appeal.
State papers filed by chief law officer Chris Mutangadura on behalf of Tomana on Wednesday submitted that Bhunu had erred at law when he considered the pieces of evidence in isolation from the others, thereby failing to take a holistic assessment of all evidence. Mutangadura argued that the totality of state evidence established a prima facie case against Bennett.
“In other words, the existence of a bank account in the name of Peter Michael Hitschmann, the e-mail communication between Hitschman and Roy Bennett as well as the fact that the said e-mails contain messages pointing to the funding of firearms acquisition all point to a conspiracy between the said Hitschmann and the respondent (Bennett),” argued Mutangadura.
“The learned trial court misdirected itself when it ruled that the authenticity of the e-mail printouts was solely dependent on the credibility of a computer expert when, in fact, circumstances surrounding the discovery of the said e-mails was the most fundamental consideration which the learned trial court did not even bother to consider in its valuation of evidence.”
However, in his response Bennett denied that the court’s analysis of the evidence was “piecemeal”.
He said it was clear from the court’s judgement that Tomana seemed to be “glossing over very serious improprieties in how the prosecution included demonstrably false material in the state summary fully knowing that it did not have evidence to support the allegations”.
Bennett raised concern over his failure to obtain his passport and other documents from Mutare magistrates’ courts on Wednesday. He said he discovered that “the passport had been uplifted from the clerk of court by Michael Mugabe, one of the applicant (Tomana)’s senior officers who initially handled the prosecution of my case”.
“I am shocked that the applicant thinks that the trial should simply have ignored the very material discrepancies between the state summary and the evidence led in court which showed that the Attorney-General’s office had in fact fabricated information that had been included in the state summary,” reads Bennett’s court papers filed yesterday afternoon by his lawyers, Beatrice Mtetwa and Trust Maanda.
“My understanding is that an accused person and a court rely on veracity of the state summary in the conduct of a trial and where there are material and unexplained prejudicial discrepancies, a reasonable court is entitled to refuse to act on such criminally contrived evidence.”
Bennett said he was astounded that Tomana thought the court should have ignored the fact that there were no bank statements when the state summary said they would be produced by Superintendent Sipho James Makone.
Regarding the e-mails, Bennett said the state failed to lead even the “most basic evidence” on how they were originated.
“I cannot quite understand how it can be seriously said the court erred in analysing (information technology expert Perekayi Denshad) Mutsetse’s testimony. Mutsetse testified as an expert on IT; he stated how he had identified the alleged e-mails as genuine and authentic,” reads Bennett’s papers. “It was therefore relevant for the court to take into account the fact that Mutsetse had identified a fake e-mail created in court as genuine, merely because it had the same characteristics as the e-mails produced by the state.”
Bennett said the state case rested on inadmissible and irrelevant “evidence” premised on Histchmann’s alleged confessions and indications, which were rejected by Bhunu in the initial trial.
“Once these were ruled inadmissible there was virtually no cogent and reliable evidence to connect me to any crime. It is therefore an outright and demonstrable lie that the trial relied on bare averments by the defence in the application for discharge,” he added.
Bennett disputed claims by the state that he fled the country when the allegations first appeared in 2006.
“Not a single one of the state witness led evidence that they had come to my premises to conduct investigations and found me absent. No evidence was led that I absconded to South Africa and none could have led as I left Zimbabwe openly through a properly designated exit point using my passport,” he argued.
“When I applied for political asylum the Zimbabwe government in fact responded that there were absolutely no criminal charges against me. I deny that the judge could have found as a fact that I absconded to South Africa without any evidence being led in this regard.”
The High Court is yet to set a date to prosecute the state application.