Harare — Attorney-General Mr Johannes Tomana has sought leave to appeal to the Supreme Court against the High Court's decision to discharge and acquit MDC-T treasurer-general Mr Roy Bennett on charges of terrorism, banditry, insurgency and trying to depose a constitutionally-elected Government.
Mr Bennett was Monday acquitted by Justice Chinembiri Bhunu, who ruled that the State had failed to prove a prima facie case against the MDC-T treasurer hence there was no reason for him to be placed on his defence.
Chief law officer Mr Chris Mutangadura - who is representing the AG in his grounds of appeal -- submitted that Justice Bhunu had erred at law when he considered the pieces of evidence in isolation from the other thereby failing to take a holistic assessment of all evidence the total of which he said established a prima facie case against Mr Bennett.
"In other words, the existence of a bank account in the name of Peter Michael Hitschmann, the e-mail communication between Hitschman and Roy Bennett as well as the fact that the said e-mails contain messages pointing to the funding of firearms acquisition all point to a conspiracy between the said Hitschmann and the respondent (Bennett).
"The learned trial court misdirected itself when it ruled that the authenticity of the e-mail printouts was solely dependent on the credibility of a computer expert when, in fact, circumstances surrounding the discovery of the said e-mails was the most fundamental consideration which the learned trial court did not even bother to consider in its valuation of evidence," he argued.
Mr Mutangadura submitted that the court failed to make a finding of fact as to where the e-mails originated.
In the context of the e-mails having been found in possession of an alleged co-conspirator Hitschmann, he said, the fact that Mr Bennett disputed them called for the court to consider for a fact whether the e-mails were concocted or not.
Mr Mutangadura also submitted that the trial court had misdirected itself when it reasoned that police should have investigated whether Mr Bennett had a computer carrying the e-mail address used in the recovered e-mails when witnesses testified that he absconded to South Africa where he was granted asylum for three years.
He said Mr Bennett did not dispute absconding at the time of Hitschmann's arrest in 2006.
"The learned trial court erred at law when it found the testimony of Mutsetse (Pekerayi Denshad) appealing only because he acknowledged lack of knowledge as to the exis-
tence of computer criminals known as hackers without any tested evidence to the effect that the persons who discovered the e-mails on the person of Hitschmann are criminals known as hackers.
"By so doing, the learned judge contradicted his earlier finding of fact that the mere fact that e-mails can be faked does not mean that the e-mails before the court as exhibit 13 are also fake," he argued.
The chief law officer argued that the ultimate finding that the e-mails were not admissible on the basis that they are capable of being faked was consequently outrageous and defied logic.
He further argued that the judge made an error at law when he found that the authenticity of e-mails was predicated upon computer forensics and scientific detection, whereas the printouts were admissible on the credibility of the person who discovers them.
"Wherefore the appellant (the AG) prays for an order setting aside the judgment acquitting the respondent (Mr Bennett) at the end of the State case substituting it with an order putting the respondent on his defence," Mr Mutangadura submitted.
The Supreme Court will have to rule whether the AG has sufficient grounds to appeal against the High Court ruling.
The State alleged that when police arrested Hitschmann in 2006 following the discovery of an arms cache in Manicaland, the ammunition dealer implicated Mr Bennett.
Mr Bennett fled to South Africa and was arrested on his return in February last year at Charles Prince Airport.
He is the MDC-T's nominee for the post of Deputy Agriculture Minister and the treason case has delayed his swearing in with Zanu-PF arguing that the courts should clear him first while his party wanted him to be sworn in despite the charges he was facing.