On several instances, 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.”
However, earlier on Justice Chinembiri Bhunu ruled that the alleged previous inconsistent statements which Hitschmann allegedly made and which the State intended to use as one of the basis for impeaching him, could not be used for impeachment purposes because the statements were inadmissible in his own trial and hence were equally inadmissible against Bennett.
Hitschmann was however declared an adverse and hostile witness by Bhunu.
Delivering his long-delayed ruling in an application filed by the State seeking to impeach Hitschmann, the Judge said Hitschmann portrayed the demeanor of a deeply aggrieved citizen who had an axe to grind with the State and its functionaries. He described him as a melancholic wounded weeping soul who had been gravely brutalized and tortured at the hands of the State, its organs and functionaries. He said Hitschmann still viewed the State as an adversary because he had a pending appeal case against the State in the Supreme Court on related charges.
The Judge said Hitschmann gave his evidence at the instance of the State with the greatest reluctance.
Justice Bhunu also stated that Hitschmann engaged in slanging matches with Attorney General Johannes Tomana, whom he sought to portray in open court as an incompetent State functionary who was wasting the court and everyone’s time by calling him as a witness when he knew that he was not going to implicate Bennett.
After ruling and proving that Hitschmann was a hostile witness Tomana proceeded with the impeachment process starting with cross examining the firearms dealer. But it became apparent the cross examination would not go far as Tomana had very limited room to maneuver while Hitschmann who had legal points on his finger tips appeared to enjoy making mincemeat of the Attorney General.
The 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.
“The handwritten statement was not signed or witnessed by anyone. The witness (Hitschmann) told the court that his tormentors were drunk and disorderly such that in their drunken state they omitted to make him sign the statement. Having noted the omission, he then deliberately refrained from signing it, signifying his lack of free volition,” Justice Bhunu noted in his ruling.
Bennett is on trial for terrorism and may face a death sentence if convicted. He was arrested last February and his case is one of the outstanding issues stalling progress of the unity government entered by Zanu PF and the two formations of the Movement for Democratic Change (MDC). The MDC views Bennett’s arrest and court case as racism and persecution of MDC party members and supporters.
Hitschmann is a former police officer and was jailed for three years in 2006 for possession of dangerous weapons, a conviction and sentence he is appealing but was acquitted on the more serious charge of terrorism. Tomana wants the court to convict Bennett by relying on written confessions and a video recording made by Hitschmann in 2006. Hitschmann says he was tortured into making the confessions during interrogation at a military barracks in March that year.
The trial continues Tuesday.