The ongoing trial of businessman George Katsimberis on fraud charges has exposed alleged rot in the judicial system after the transcript of the court proceedings was ‘doctored.’
Katsimberis wants the case where he is accused of forging a plan for a house he built on behalf of Pokugara Properties in Harare’s Borrowdale area referred to the Constitutional Court (ConCourt) as he claims that his rights are being violated in the long running trial.
Pokugara is owned by businessman Ken Sharpe, which destroyed the show house without a court order after claiming that it was built using an unapproved plan.
Katsimberis’ lawyer Tino Chinyoka told the Harare magistrates court this week that his client doubted the completeness, accuracy, and fairness of his trial after he was given an official court transcript that was allegedly doctored.
According to Chinyoka, some court rulings, recorded tapes and arguments are now missing from the transcript.
Some of the missing segments provided by Chinyoka include rulings from March 25, 2022 and recorded tapes from March 8, 2022.
He argued that the transcript that was provided by the court made the events seem like they never happened.
Chinyoka alleged that the transcript was criminally tampered with such that some pages from the document were typed in huge fonts and double spacing resulting in 57 pages being reduced to only two.
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“Something serious, we have been given a transcript of your worship coming to court on 23 September 2022,” he said.
“I cannot explain without showing the tragic manner in which the record has been distorted.
“There is supposed to be 1.2 spacing for a ruling and new Roman 12 fonts. 10 pages translate to 57 pages.”
He said the doctoring of the transcript made his client a victim of an unfair trial.
Chinyoka said most of the missing segments on the transcript were periods when prosecutor Michael Reza featured.
“In the parts of the transcript missing are areas where the state said something that does not look good when revisited,” he said.
“It is those areas when this prosecutor said something that is omitted from the transcript.
“Why does this happen to this prosecutor?
“Why does the transcript omit the parts where he speaks?
“Some parts are edited out to ascertain that certain people do not come out in a bad light.
“The only person who benefits from what has been done is the state.
“You cannot have justice if court papers are carefully doctored so they omit certain reports.”
Katsimberis has alleged on several occasions that Reza was Sharpe’s hired gun in his trial.
In some instances, Chinyoka said, the transcript showed contradictory statements that were never said during court proceedings, including Katsimberis' admission of owing the plans.
“Some whole sections have not been recorded at all,” he said.
“Some of the whole sections have been amended in ways that in our submission, deliberately and wrongfully constitute a violation of the applicant’s right to fair trial as well as a violation of section 70 subsection 4 of the constitution.”
The section gives anyone on trial the right to have a copy of recordings of the proceedings.
“However, the reason why we want to raise this now is that from what parts of the transcript we have seen now it will not be possible to give this applicant a full copy of the transcript at the end because the sections we have been given, several of which have been signed by the court are not reflective of what has been going on,” Chinyoka said.
“We submit that because Mr Katsimberis is making an application to the ConCourt alleging a violation of his ongoing right to a fair trial, which includes how the trial is being conducted.
“He made a request to be given sections of already completed proceedings and in those sections, he has been given, there are parts so altered that only conclusions is that this is deliberate.”
Quoting a High Court ruling in the state vs Chizhanje, Chinyoka said the courts have said in circumstances where the record is unavailable for any reason it becomes impossible to review the proceedings or to challenge the conviction and sentence.
“We submit that because of the nature of the record even though the court… those sections that are available and have been signed as the correct record are so incomplete and so different from what transpired in court that there might as well be viewed as not having a record at all,” he said.
Citing another case between the state and Chidhando, Chinyoka said the rulings emphasised that the court must make sure that a complete record is made available to an accused person or a convicted person.
In October, Katsimberis made an application to have court processes halted until he gets the full transcript but presiding magistrate Vongai Guwuriro said the missing or distorted record could not stop proceedings.
Chinyoka said this indicated that the magistrate trusted the process of capturing what was being said during proceedings.
“What I take from that Your Worship is that the court has absolute faith in the record that comes from the recording equipment because the record that comes from the recording equipment must be word for word, everything that was said in court,” he added.
“I cannot see a rule in the Criminal Procedure and Evidence Act that empowers the transcriber or the clerk of court to summarise or somehow omit some parts of this record as either being irrelevant or not important.”
