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Justice Ndou sitting with Messrs Elliot Nyoni and Phanuel Damba, as assessors, gave the State the green light to lead evidence from Detective Sergeant Zibusiso Moyo in his capacity as the exhibit officer.
The State was allowed to call the witness subject to the fact that the defence teams of the trio be given the statement by Det Sgt Moyo and that the defence team should be allowed access to documentary evidence.
The court further ordered the prosecution team of Messrs Lovack Masuku and Samuel Pedzisai, from the Attorney General’s Office, to amend the summary of the State case and the defence teams be allowed enough time to prepare and that should the need arise during the testimony of Det Sgt Moyo, the defence be allowed to recall some witnesses who have already testified.
In his ruling, Justice Ndou said the State should have sought leave of the court to lead evidence from Det Sgt Moyo as provided for in the Criminal Procedure and Evidence Act.
The judge said it is a requirement that the State should provide the list of all witnesses, summary of their evidence and the list of exhibits to the defence team so that they prepare adequately for cross-examination and preparing the defence outline.
“There is no summary of the evidence that the State will deduce from Det Sgt Moyo. The fact that the State says the defence had indicated that they would object to the witness being called then they should have put their house in order.
“From the start of the trial, the State was aware it had to produce all the exhibits. The State should have prepared accordingly.
“The accused are facing a very serious charge and the court cannot allow short cuts. While the court does not have a say on which witnesses should testify, it has the duty to direct the proceedings to see that justice is seen to be done,” said Justice Ndou.
He said there should be fairness in the way the trial is conducted.
Advocate Sabelo Sibanda defending John Gazi and Advocate Lucas Nkomo, representing Charles Thomas and Paul Siwela, on Tuesday raised an objection to the State counsels calling Det Sgt Moyo.
Objecting to Det Sgt Moyo testifying, Adv Sibanda said Det Sgt Moyo was a surprise witness in the sense that when the trial opened the State never indicated that they were going to call him to testify.
He argued that there was no sworn affidavit stating what Det Sgt Moyo was going to testify and that they were given photocopied documents that were going to be produced barely five minutes before the resumption of the afternoon session.
He noted that according to the summary of the State case, it was indicated that Det Sgt Moyo was going to testify on the recording of the warned and cautioned statements showing that the trio made them freely and voluntarily.
He said there was a need for him to be given enough time to get full instructions from his client adding that Det Sgt Moyo would not be competent enough to answer some of the questions that the defence team would want clarified.
Adv Nkomo, instructed by Mr Sindiso Mazibisa and Mr Robert Ndlovu for Thomas and Siwela, said they were also objecting to the calling of Det Sgt Moyo on the same grounds advanced by Adv Sibanda.
He added that the State was bound by its declaration that it would not call Det Sgt Moyo as that declaration made the court and the defence counsels believe that they would not call him only to turn around and say they were calling him.
“The subject of his testimony is totally different from the evidence contained in the summary of the State case. The reason why it is necessary for the State to disclose the witnesses is for the court and defence counsels to monitor the said witnesses and ensure that they do not sit in court and listen to other State witnesses testifying,” said Adv Nkomo.
He said if Det Sgt Moyo is allowed to testify this would be prejudicial to the defence and an unfair advantage on the part of the State.
Mr Masuku said the State had decided to call the evidence of Det Sgt Moyo after realising during the course of the trial that there were some grey areas in the State case that needed to be clarified.
He said the purpose of calling Det Sgt Moyo was for him to clarify the movement of exhibits from the time the trio was arrested to time of the commencement of the trial.
The matter was rolled over to today when the defence team and the State counsels would come up with the date for the continuation of the trial.
Thomas (44), Gazi (54) and Paul Siwela (50) have pleaded not guilty to the main charge of treason and the alternative charge of subverting a constitutionally elected Government.
Thomas and Siwela’s in their defence outline have denied that they ever at one time from 1 March to 3 March 2011 acted in common purpose and conspired with any person to incite people of Zimbabwe or a section of them to rise against the Government by distributing fliers which contained messages calling on members of the public and the army to rise against the Government.
Gazi, through Adv Sibanda, states that at the time of the alleged offence and prior to his resignation from the MLF, he was its secretary-general.
He denies hatching a plan to distribute any fliers and conspire to incite members of the public or anyone else to rise up against or seek to overthrow a constitutionally elected Government through unconstitutional means.
Online Reporter