The State v Roy Leslie Bennett

The accused, Roy Leslie Bennett, was charged with various counts involving terrorism, sabotage and illegal possession of firearms in contravention of the Public Order and Security Act [Cap11:17] and the Firearms Act [Cap10:09]. During the trial, the state produced various exhibits including assorted ammunition, arms of war and a laptop computer belonging to Michael Peter Hitschmann, a convicted accomplice witness who had since been impeached by the court. The state alleged that the laptop was used as a mode of communication between the accused and Hitschmann in executing the alleged criminal acts. The state sought to produce certain e-mails as evidence of such communication. The e-mails were printed by Precious Matare, a typist in the Ministry of Security in the President's Office. On 6 March 2006, Matare was called to Mutare Central Police Station where she was asked to download certain e-mails from a laptop in the presence of Hitschmann. She printed certain e-mails from Hitschmann's laptop with his assistance in showing her what to print. Hitschmann had allegedly been assaulted or abused by police or state functionaries.

• Whether e-mails printed from an accomplice witness's laptop, pointed out by the accomplice, are admissible as evidence against the accused
• Whether evidence obtained through indications by an accomplice whose confession was allegedly obtained through duress is admissible
• Whether executive statements made in furtherance of a conspiracy are admissible against co-conspirators
• The application of sections 258 and 281(3) of the Criminal Procedure and Evidence Act [Cap 9:07] to evidence pointed out by an accomplice witness

The court ordered that the e-mails be admitted in evidence as exhibit 13. The objection by the defence to the production of the e-mails as an exhibit was dismissed.

1. Evidence that was pointed out by an accomplice witness is admissible against that accomplice under section 258(2) of the Criminal Procedure and Evidence Act, and becomes admissible against a co-accused under section 281(3) where it is alleged that both are involved in the same offence. 2. The admissibility of evidence pointed out by an accomplice is not tainted by alleged assault or abuse of the accomplice where the evidence was created before such assault or abuse occurred. 3. Executive statements made in furtherance of the commission of a crime are admissible against conspirators or partners in crime as an exception to the general rule that extra-curial statements are only admissible against their maker. 4. The acts and declarations of one conspirator performed and made in furtherance of the common purpose are admissible in evidence against other conspirators. 5. Courts must distinguish between the weight of evidence and the admissibility of evidence; the purpose of a criminal trial is to determine the correct factual position without reducing the trial to a game of wits.

The court observed 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. The court noted that Hitschmann's conviction deprived him of the presumption of innocence, and this conviction stands until it is upset by a higher court of competent jurisdiction, notwithstanding the pending appeal in the Supreme Court. The court commented that if Hitschmann's assailants could produce guns he pointed out without objection, there was no logical reason why the production of relevant e-mails extracted after he pointed them out should be objectionable. The court also observed that Matare's evidence was "innocuous" in that she merely testified to what she did with her own senses - punching the computer and printing what came out.

This case is significant in Zimbabwean criminal procedure and evidence law as it clarifies the application of sections 258 and 281(3) of the Criminal Procedure and Evidence Act regarding the admissibility of evidence pointed out by an accomplice witness against a co-accused. It reaffirms the exception to the hearsay rule that executive statements made in furtherance of a conspiracy are admissible against all conspirators. The judgment also clarifies the distinction between the admissibility of evidence and its weight, and establishes that evidence pointed out by an accomplice can be admitted even where the accomplice's confession itself may be inadmissible due to duress, provided the evidence itself was created prior to any improper conduct. The case demonstrates the court's approach to ensuring that relevant evidence is not excluded on technical grounds where it is material to the just determination of criminal proceedings.