ARMS TRIAL: Validity Of Emails Under Spotlight
By Sebastian Chiweshe, Harare
HARARE: The high profile trial of MDC treasurer general Roy Bennett turned emotional with Attorney General (AG) Johannes Tomana, who is leading the prosecution team, accusing the defence of ‘caricaturing’ and ‘demeaning the person of the AG.’
Emails scrutinised
Bennett’s lawyer Betrice Mtetwa had produced a fake email from a sender named “Johannes Tomana” to prove that emails can be created anywhere and by anyone.
Prior to that, High Court Judge Chinembiri Bhunu had ruled that emails allegedly printed from key state witness Michael Peter Hitschmann’s laptop in 2006 should be used as evidence in the ongoing treason trial of Bennett.
Last week the defence objected to the production of the emails in court saying Bennett never knew of their origins.
“From the beginning, the person of the Attorney General has been personally dragged into this matter improperly,” said a visibly angry Tomana, as he took issue with the production of the emails under his name.
“There is no need to caricature the person of the attorney general… This is embarrassing and must be excluded.” Tomana went to say the defence was ‘infringing’ on the AG’s right to ‘prosecute without fear, favour and prejudice.’
“By now it is quiet clear that the attorney general lacks insulation provided for under (the constitution of Zimbabwe. I urge the court to stop the defence [from pursuing] this jocular [portrayal] of the person of the attorney general. These documents (emails produced by Mtetwa) should not be produced as they try to interfere with my roles,” added Tomana.
“This goes to confirm that the defence is personalising this matter to the extent of infringing the freedom [I am entitled to by the constitution as an AG].
An equally irked Mtetwa denied caricaturing the AG, adding that she was only trying to prove that emails can be faked.
harare
“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 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.”
Bhunu had ruled the emails purportedly written by Bennett and Hitschmann to hatch treason plan were admissible, given that they had been written before Hitschmann was tortured.
He added: “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… It is plain to that the emails in question are relevant and vital to the just determination of this case. I therefore hold that the emails are admissible as evidence against the accused.”
Mtetwa came short of telling the judge Bhunu that he was biased towards the state.
“It appears to me that there is a trend to reverse the honours [given to the accused that he is innocent until proved guilty]. Anything that the state produces is being treated as fact because it has been produced by the attorney general.”
“How then does the accused prove that the emails [judge had ruled admissible] are fake and not authored by the accused? You [judge] said these emails were written before the state witness was insulted [by state agents] yet the state has not placed that evidence before you.”
Bhunu will rule on Monday, when the trial resumes, whether Mtetwa’s materials can be used in the trial to cross examine a 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.
As Tomana and Mtetwa were arguing Bennett remained calm and was laughing, as was the gallery. The judge at some point had to order the gallery to be silent.
Prosecutors allege 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.
The arms dealer and former policeman denies the charges, 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 – formed last February by MDC leader Morgan Tsvangirai and Mugabe after a violent election in 2008 – has pleaded not guilty to the treason charges levelled against him.
Short URL: http://investigativezim.com/?p=2498
Posted by Sebastian Chiweshe
on Feb 4 2010. Filed under ARMS & DRUGS, FEATURED STORIES & BLOGS, Featured Stories, NEWS.
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Three important elements in Email forensics- Originating IP, Geo-location of IP and Electronic ID of the computer that sent the email [which every computer submits to the server]. Even if the state gets all three right, they will need to prove that Hitschmann was indeed on the keyboard on the day and time at which emails were sent. Proving that they were sent from his computer is not good enough as he could have been in prison on the day [or in Mutare with a solid alibi when Geo-location of Originating IP shows emails were sent from Harare] The email that Mtetwa brought to court to prove emails can be forged cannot pass that test unless they generated it from a computer that can be directly linked to Tomana through Electronic ID, ISP, Time and Geolocation. I hope the prosecution and defence both have the necessary expertise.
this case is tricky