Bhunu will make a ruling on the application for recusal on Monday.
The application was made in the judge’s chambers by Bennett’s lead counsel, Beatrice Mtetwa of Nyambirai & Mtetwa Legal Practitioners.
Speaking to journalists after an hour-long session in Bhunu’s chambers, Mtetwa said the judge’s ruling in May 2006 where he said evidence against Hitschmann, Bennett’s co-accused then, was “overwhelming” could influence the outcome of the trial. This, Mtetwa said, undermines Bennett’s presumption of innocence until proven guilty
Hitschmann is the state’s star witness against Bennnett.
Mtetwa said: “We have applied that the judge recuse himself from the case because in his judgement in May 2006 he said there was overwhelming evidence against Roy Bennett’s co-accused.”
The judgement in question was made in May 2006, but Bennett could not be tried because he had fled into exile.
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Earlier this week, Bennett’s defence lawyers had asked that Hitschmann be barred from testifying, because he had been induced through torture into making a confession implicating the politician.
Hitschmann, a gun dealer and collector, was acquitted of the same terrorism charges Bennett now faces, but served a two-year sentence for possession of unlicensed guns, including several automatic weapons.
Bhunu on Wednesday said charges against Bennett were serious and therefore technicalities should not stand in the way of evidence, indicating Hitschmann would have to testify at some point.
But the judge said he would allow questions about torture allegations made by Hitschmann.
Hitschmann submitted an affidavit to the Attorney-General’s Office claiming the statement he made when he was originally detained in Mutare was obtained under duress.
The lawyer, who submitted Hitschmann’s affidavit last week was later detained for 48 hours, accused of obstructing justice.
The state has listed eight other witnesses, all policemen or members of the country’s spy agency, the Central Intelligence Organisation.
Bennett’s arrest last month forced Prime Minister Morgan Tsvangirai to partially disengage from the unity government.
Chris Muronzi
