The State v Roy Leslie Bennett

The accused, Roy Leslie Bennett, was charged with offences related to possession of firearms and arms of war. The State's main witness, Michael Peter Hitschmann, had been found in possession of a large quantity of firearms, ammunition and arms of war on 6 March 2006. He was arrested and detained at Adams Barracks. While in detention, Hitschmann made several written statements and video-recorded indications on 7 and 11 March 2006, in which he allegedly implicated the accused as having financed the criminal enterprise to effect regime change through force of arms. However, Hitschmann claimed these statements were involuntarily extracted through torture and made without proper warnings and cautions. He was not made to sign the handwritten statement. Hitschmann was subsequently prosecuted on substantially the same charges as the accused and was convicted only of possession of dangerous weapons under POSA, receiving a four-year sentence (one year suspended). When subpoenaed to testify as a State witness, Hitschmann delivered an affidavit in November 2009 absolving the accused of any wrongdoing. In court, he gave evidence unfavourable to the State case and favourable to the accused.

• Whether the State's main witness should be declared a hostile or adverse witness in terms of section 316 of the Criminal Procedure and Evidence Act
• Whether previous inconsistent statements made by a witness without proper warnings and cautions can be used to impeach that witness
• Whether confessions made by one accused person are admissible as evidence against another accused person in terms of section 259 of the Criminal Procedure and Evidence Act
• What constitutes an adverse or hostile witness and on what basis can such a declaration be made

The witness Peter Michael Hitschmann was declared an adverse or hostile witness to the State case. The State was granted leave to cross-examine its own witness.

The binding legal principles established are: (1) Previous inconsistent statements that are inadmissible in evidence cannot be used to prove inconsistency for the purpose of impeaching a witness. (2) Confessions made by one person are not admissible as evidence against another person pursuant to section 259 of the Criminal Procedure and Evidence Act. (3) A witness is adverse or hostile when shown to bear a hostile animus towards the party calling him such that he does not give evidence fairly and with a desire to tell the truth. (4) Hostility may be inferred from various considerations including the witness's demeanor in the witness stand, relationship with either party, previous conduct, and previous inconsistent statements - not from any single factor alone. (5) The witness's demeanor in the witness box is crucial in determining whether he is hostile or adverse. (6) Once a witness is declared adverse or hostile, the party calling the witness may cross-examine that witness.

The court made several non-binding observations: (1) The witness viewed his dismissal from the police force as unjust retaliation for being incorruptible while his colleagues were corrupt. (2) The witness believed he was selectively prosecuted on racial grounds as other suspects of different races had charges dropped. (3) The Attorney General called the witness knowing he was likely to give adverse evidence. (4) The handwritten statement was not signed because the witness's 'tormentors were drunk and disorderly' and the witness deliberately refrained from signing to signify lack of free volition. (5) The court noted it found it curious that the witness would find a video of the accused assaulting a Government Minister 'amusing and entertaining' and questioned whether he would have found it equally amusing if the roles were reversed - suggesting possible bias.

This case is significant in Zimbabwean criminal procedure and evidence law as it comprehensively addresses the principles governing impeachment of a party's own witness. It clarifies that: (1) previous statements made without proper warnings and cautions cannot be used for impeachment purposes; (2) confessions by one accused are inadmissible against co-accused persons under section 259; (3) hostility or adversity is not established merely by unexpected evidence or previous inconsistent statements, but requires proof of hostile animus; and (4) the witness's demeanor, relationship with parties, and overall conduct are critical factors in determining hostility. The judgment provides important guidance on the multi-factorial approach to assessing witness hostility and the limits on using involuntary or improperly obtained statements for impeachment purposes.