The judgment can be found at the following link:
http://www.malawilii.org/mw/judgment/high-court-general-division/2011/10

This is an egregious judgement that is beset by a number of errors of law and fact. The judgement is grossly unfair and fails on various levels.

1. Failure to deal with legal issues presented

SALC believes that one of the fundamental problems with the judgement is the failure to deal with the legal issues in the manner in which they were presented. There are vast areas of the applicant's case that the judge has failed to address. Throughout the judgement the judge fails to consider any of the authorities that supported the applicant's legal assertions. The applicant set out a body of case law on what constitutes an "unreasonable delay before trial" The applicant relied, in particular, on the cases of Dyer v Watson [2002] UKPC D1, [2004] 1 AC 379, 403-3, Boolell v The State of, Mauritius Privy Council Appeal (No 39 of 2005.), Mills v HM Advocate Privy Council DRA. No. 1 of 2002 and Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC).
None of the applicant's authorities are referred to or distinguished in the judgment. The judge assessment of the test for unreasonable delay also gives cause for concern. He cites A-G Ref No 1 of 1990. His assessment of the test in this case is grossly simplified; the judge totally ignores the two separate issues, the first issue to decide is whether the delay is unreasonable and secondly what is the effect of the delay. Instead the judge simply confines himself to what the effect of the delay is. The applicant submitted various authorities decided since A-G Ref No 1 of 1990 which have set out the correct test to assess whether a delay is unreasonable . The judge failed to make any reference these authorities cited by the applicant which take precedence over A-G Ref No 1 of 1990.

The judge also failed to take note of the fact that case laws suggests that once the first limb (see footnote 1) of the delay test is passed it is for the state to assert that a delay which ‘gives rise to grounds for concern,' is not in fact an unreasonable delay. In essence, the judge has cherry picked minute sections of an overruled and distinguished precedent in order to protect the state.
Where the judge cites A-G Ref No 1 of 1990 in relation to when criminal proceedings can be stayed he asserts that a case can only be stayed when trial prejudice can be proved. The applicant submitted a welter of case law that sets out that there is a second class of cases in which a case be stayed; namely when the breach of the right to a trial within a reasonable period of time and the affects thereof are so egregious that it amounts to abuse of the courts process to continue proceedings; The judge makes no reference to these authorities, he simply ignores them.
The judge decided that there is no risk of an unfair trial despite the state making no rebuttal of the various factors which the applicant contended would render his trial unfair. The judge then goes on to cite at page 7 para 2 Wemhoff v Federal Republic of Germany (1968) 1 EHRR 55. It should be noted that this judgment was not referred to by either the applicant or the state. It is clear the judge has cherry pick a small section of an outdated judgement to fit his own personal view of what the outcome of the case should be.

SALC believes that the judgment reflects a general failure to consider not only precedent on what constitutes an unreasonable delay in trial and whether the applicant was entitled to a stay of proceedings but also the constitutional and international fair trial rights as well.

2. Failure to deal with the facts presented and a lack of impartiality

The judgement also expresses a lack of impartiality towards the applicant, the attitude of the judge towards the applicant is aptly stated in page 3 paragraph 3 of the judgment which states that, ‘the applicant then went on to state that his life in prison was particularly difficult because he was not convicted of any crime and that he is allegedly an innocent man.' This statement shows a total lack of understanding for one of the central tenants of criminal law; namely that anyone accused of a crime is innocent until proven guilty. It is the guilt that is alleged and not the innocence.

At several points in the judgement the judge assumes facts to support a rebuttal against the claims of the applicant, where no facts are presented from the state. Where the applicant avers that he was never given a legal aid lawyer; that the state never clearly informed him of the charge he was facing or been afforded the opportunity to peruse the state's case against him to prepare a defence the judge blatantly glosses over the averments and substitutes them with assumptions in favour of the states conduct in these matters. Reading the judgement it becomes clear that the failure of the state to take any part in the legal proceedings has damaged the applicant's case rather than damaging the state's case.

It is SALC's view that the judge has overstepped his mark in these proceedings and is clearly not impartial in this matter. Much has been written on a judge's duty to be impartial in matters before him. The Supreme Court of Canada described the concept of judicial "impartiality" as referring to "a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case"( (1985) 2.S.C.R Valiente v. The Queen 673; http://www.lexum.umontreal.ca/csc-scc/en/pub/1985/vol2/html/1985scr2_0673.html, at p. 2).s The Human Rights Committee has also affirmed that the notion of "impartiality" in article 14(1) "implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties".( 12Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN doc. GAOR, A/48/40(vol. II), p. 120, para. 7.2.). It is our view that the judge failed the test of impartiality in this matter.

We hope that this judgment will be overturned on appeal and that the Malawian judiciary and will keep you posted on our efforts to support the appeal matter.

[1]The first limb is to decide whether in fact the delay can ‘on its face’ be said to be unreasonable. Once this test is passed the judge should look at three issues. Firstly can the complexity of the case explain the delay, secondly did the applicant contribute to the delay and thirdly did the state cause or contribute significantly to the delay and thirdly

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