In interpreting the remarks made during the meeting sight must not be lost of the fact that Mr Menashe was out to collect evidence of a request from the accused. It is not in dispute that the accused was the only person in the conference room who did not know that the discussions were being recorded. Air Vice-Marshal Mhlanga described the tape as inaudible. Mr Menashe also brought with him a transcript of the tape. It is not in dispute that using normal transcribing equipment available in this country one cannot produce the same kind of transcript as did Tara Thomas and Elizabeth Boutin from the same tape.
Tara Thomas told the Court that the transcript was made possible after the audio tape had been recorded on to a diskette and the diskette in turn played on equipment with equalizer. In fact the transcript was only made available to the defence after the commencement of the trial largely because the State considered it of no consequence.
Indeed the police officers who gave evidence told the Court it was not included in the docket because there was nothing on the audio and there were many gaps in the transcript. That the transcript is a relevant piece of evidence there can be no doubt. Indeed it should have formed part of the investigations.
According to Mr Menashe and Tara Thomas, there was a request at the second meeting for the assassination of the President and the staging of a military coup. Tara Thomas accompanied Mr Menashe to London to record the discussion on the tape recorder.
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The transcript produced by Tara Thomas and Elizabeth Boutin has complete sentences in certain sections and one can follow the discussions that took place in those sections. The court has already noted that the transcript refers to former Zambian President Frederick Chiluba and his alleged corrupt practices as well as other players on the Zambian political scene including Edith and one Penza who was killed.
The transcript is therefore relevant containing, as it does, portions which reflect clearly the discussions that took place. What is in the inaudible portions will of cause never be known. But to the extent to which the transcript contains meaningful discussions during that meeting, it is relevant. It is relevant because the State says there were various requests by the accused during that meeting for the assassination of the President and the staging of a military coup.
It is not in dispute that the transcript does not in fact contain evidence of such a request. Although the transcript is not complete, the fact that it does not confirm that such a request was made is relevant. A document is not only relevant because it supports the case for the prosecution. It is also relevant if it does not do so or if it contradicts the prosecution witnesses. In the light of this it was improper for the State to have ignored the transcript or at the very least not to have brought the contents of the transcript to the attention of the defence. However in fairness to the investigation team, there appears to have been a genuine but misguided belief that it was not relevant.
Besides the oral evidence given by Mr Menashe and Tara Thomas to the effect that the accused requested for the assassination of the President and the staging of a military coup, the video tape and accompanying transcript are no doubt important pieces of evidence in this case.
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Mr Menashe told the court that the meeting in Montreal was recorded in order to provide proof of the criminal intention of the accused. The video was played several times during the course of the trial. The video is accompanied by a humming sound almost similar to the sound that one hears on an aircraft in motion. The state witnesses attributed the interference to a central air conditioning system for the entire office block. What was said by the witnesses is audible in some places but not in others. This much is apparent from the transcript of the proceedings which reflects gaps in various places.
There is no doubt that both the picture and audio quality of the video tape are poor. The picture does not provide clear focus generally although one can identify the different people who took part in the meeting.
The audio quality is certainly poor as there are various inaudible portions in the video. In short the video does not provide a complete record of what was discussed. The State led evidence from Mr Chinhoyi. Mr Chinhoyi showed the court the various techniques used in tampering with a tape. He told the court in general poor focus cannot result by mistake especially if there is a monitor.
He examined the video tape in this case and did not see any evidence of tampering. He told the court however that one cannot say so with certainty as there are modern techniques that can be used in such a way as to make alterations undetectable. It was also his evidence that it is easier to tamper with a poor picture than a picture of good quality.
In his opinion the real difficulty with the video is that whilst the picture remains unbroken the sound is interrupted in several places. Mr Schober in his evidence told the court that technology exists to remove the buzzing sound and thereby enhance the audio sound. This was not followed up. The result is that there is before this court a video tape in which some of the discussions during the meeting are audible and others are not.
Because of the gaps one cannot say what words followed or how those words might have qualified the words that are audible. His assessment was that generally the audible portions of the tape correctly reflect the discussions that took place in Montreal. There were a few amendments to the transcript by Mr Menashe, Tara Thomas and the accused. Most of the amendments were not in contention. There is some dispute however on what was said before the accused uttered the words —.
In short therefore the correctness of the portions that are audible is not really in dispute although the admissibility of the video has been challenged.
In my view that decision correctly reflects the law on this topic. In the present case the authenticity and accuracy of the video have been established although suggestions have been made that it may have been interfered with. The fact that a tape is inaudible in parts is no reason to require its exclusion, particularly in a case, such as the present, where the accused accepts the accuracy of the portions that are audible.
In all the circumstances therefore this court reaches the conclusion that the video tape is admissible. Indeed it was for this reason that the State, at the close of the State case, amended the charge and removed all reference to such a request during the third meeting.
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The following arethe findings of the court on what happened. First, on the evidence before the court, Rupert Johnson could not possibly have been representing the MDC. The documentary evidence available suggests that Rupert Johnson represented himself as a director of Dickens and Madson, with the knowledge of Mr Ari Ben Menashe.
The suggestion that Rupert Johnson approached Dickens and Madson in his capacity as a representative of the MDC is not therefore tenable.
Second, the transcript of the meeting held at the Royal Automobile Club, though incomplete, does not reflect the request that Mr Menashe says was made for Dickens and Madson to arrange the assassination of the President and the staging of a military coup. The intelligible portions of the transcript reflect discussions on other topics. Third, it is clear that the third meeting, like the second, was recorded on tape by Dickens and Madson in order to secure evidence of a request by the accused for assistance in arranging the assassination and military coup.
Mr Menashe had been told that what he had brought to Harare on 23 November contained no evidence of such a request. Fourth, the video recording is generally of poor quality. The picture appears hazy and somewhat lacking in focus. Though audible in places, the audio quality is generally poor. The transcript of the video confirms that a lot of what was said is not inaudible. In short there are gaps and it is not possible to say what was said on those occasions. It was for this reason that the State applied to amend the charge following the discharge of Welshman Ncube and Renson Gasela at the close of the State case.
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There is no evidence to show that the accused specifically repeated this request at the third meeting in Montreal. Seventh, the audible portions reflect various statements being made by all the people in attendance. In the majority of cases questions were put to the accused and he would answer.
It is apparent from the video that the accused initially appeared confused and gave the impression he did not know what was being referred to. In later portions of the video he appears less hesitant and makes a number of remarks, some of them not innocuous.