77. In the instant Application, the Court observes that following his arrest on 21
July 2004, the Applicant was charged on the same day with the offence of
murder. However, the Applicant was committed to the High Court for trial
only on 21 October 2009 and there is no indication from the Respondent
State’s submission to justify the period of about five (5) year and three (3)
months that elapsed from the time of the arrest. Subsequent to the
committal proceedings, the matter was adjourned to the next session to be
fixed by the District Registrar on a date to be notified and the Applicant was
remanded in custody. When the matter was brought for hearing on 28 June
2010, it was adjourned again due to the non-appearance of two prosecution
witnesses who were considered as key to the case. The trial eventually
commenced on 19 June 2012, which is seven (7) years, ten (10) months,
and twenty-nine (29) days after the Applicant was arrested.
78. In assessing reasonableness of the length of the Applicant’s pretrial
detention, the Court also notes that, as the record shows, all of the evidence
submitted at the original proceedings appears to have been obtained in
2004, in the immediate aftermath of the Applicant’s arrest with the exception
of the post-mortem report which was signed in 2005.
79. The Court is cognisant of the Respondent State’s averment that the delay
in investigating the case was necessitated by the need to produce key
witnesses and the Applicant did not oppose the adjournments. However,
the Court is of the considered view that while it might have been necessary
to produce the witnesses, the delay in doing so and the overall length of the
pretrial detention did not abide by due diligence as required in such
instances. Notably, the period of more than five (5) years that elapsed
between the Applicant’s arrest and his committal to the High Court for trial
cannot be said to be reasonable in the circumstances and the fact that the
Applicant did not object to the adjournments is not a valid justification for
the delays. As a matter of facts, despite a two-year stay to do so, the
Respondent State failed to locate all of its own proposed witnesses.
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