Harare — Attorney-General Johannes Tomana yesterday applied to have a defence outline by MDC-T treasurer Roy Bennett on terror-related charges thrown out, arguing it was filed out of time and in breach of the law.

In a preliminary issue raised before the start of the trial, which is expected to be determined tomorrow by the presiding judge, Justice Chinembiri Bhunu, Mr Tomana argued that the defence outline appeared more of an application to quash the charges.

However, defence lawyer Mrs Beatrice Mtetwa opposed the application, saying the AG had no powers to impose on Bennett what he should include in his defence.

She made a counter-application seeking an order to bar arms dealer Peter Michael Hitschmann from testifying, arguing that he had nothing to tell the court for the State.

She said Hitschmann signed another affidavit disowning an earlier one upon which the State is relying saying it was written under duress.

Mr Tomana wants the defence outline filed by Mrs Mtetwa struck off the court record, arguing it was filed out of time and in contravention of the Criminal Procedure and Evidence Act.

The AG added that the contents of the defence outline were vague and more of an application to strike out the State outline, which he felt, was not procedurally correct.

"In terms of Section 66 of the Criminal Procedure and Evidence Act, the accused is required to file his defence outline at least three days before the commencement of the trial. The three days do not include weekends and public holidays.

"The document that was filed by the defence on 4 November 2009, gave the AG only two days to consider the papers. That did not comply with the Criminal Procedure and Evidence Act.

"The document, itself, does not amount to be a defence outline provided for by the Act.

"Besides attempting to tender a plea of not guilty, the document appears like an application to strike out the State outline. It seeks to quash the charges, but this is not the form in which such an application is made. It should be done well before the trial date," said Mr Tomana.

But Mrs Mtetwa counter-argued that the AG wanted to tell Bennett how to craft his defence, thereby infringing on his constitutional rights.

"The State cannot apply to have the accused person gagged on what he has to say just because the AG does not like what is in the defence outline," said Mrs Mtetwa.

Mrs Mtetwa applied for Hitschmann not to testify, saying he had nothing to say in the trial.

"Hitschmann's lawyer formally wrote to the AG that he had no evidence to give.

"The AG received that communication and instead of thanking the lawyer, the lawyer was actually arrested and is currently on bail," said Mrs Mtetwa.

She also submitted that the evidence of the other State witnesses hinged on Hitschmann and that if Hitschmann does not testify, the testimonies of the other witnesses would all be hearsay and inadmissible.

Mrs Mtetwa insisted that certain portions of the State outline that had to do with Hitschmann's evidence should be struck off.

Mr Tomana, she argued, acted unethically by proceeding to trial with an affidavit that Hitschmann disowned and that his case should be referred to the Law Society of Zimbabwe for an inquiry.

"It is a conduct not worthy of an Attorney-General to proceed with an affidavit that is against what is in the State papers.

"When the AG appears before this court, he is just like any other officer of the court and prosecutorial discretion should be exercised impartially.

"The court has information that the AG has not acted in fairness. Unprofessional conduct by officers of the court should be referred to the LSZ.

"An AG is for everyone. He should be impartial. He is AG for Bennett and for whoever is in Zimbabwe," she said.