R v Touch - [2005] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v TOUCH
Ruling of His Honour Judge Rice
16 June 2005
CRIMINAL LAW
Application for a permanent stay of proceedings as an abuse of process - accused charged with the manslaughter and assault of her baby daughter - accused thought fit to stand trial - trial commenced - the nature of the evidence called at trial caused the accused to become mentally unfit to stand trial - Judge at earlier trial so ruled - confirmed at this trial - Judge proposing to proceed pursuant to s 269MB of Part 8A and consider material relevant to the objective facts - accused unable to be present at or in Court for that purpose because the nature of the evidence would exacerbate her mental condition - submitted that an accused has a right to be present at his or her trial, even of the objective facts, and because that was not possible in this case by virtue of her mental condition, a permanent stay should be granted - election for trial by Judge alone in all respects.
Held - application refused - no absolute requirement that the accused be present for a consideration of the objective facts - accused could not assist even if present - accused represented by counsel who had obtained instructions prior to the aborted trial - trial able to proceed in her absence.
Criminal Law Consolidation Act 1935 Part 8A ss 269H, 269M and 269MB(1), referred to.
R v Lee Kun (1916) 11 Cr App R 293; R v Howson (1982) 74 Cr App R 172 at 177; R v Collie [2005] SASC 148; Subramaniam v R 211 ALR 1; Walton v Gardiner (1993) 177 CLR 378; Hakim (1989) 41 A Crim R 372; R v WRC (2003) 59 NSWLR 273, considered.

R v TOUCH
[2005] SADC 65
Introduction

This is an application for an order that these proceedings be stayed because it is said its continuation would be an abuse of process. There is no dispute that the position of the accused comes within Part 8A of the Criminal Law Consolidation Act 1935 (“CLCA”) and that she is mentally unfit to stand trial. The factual circumstances that have led to this application are detailed below, but the basis of the application is that it would be harmful to the accused’s psychiatric health for her to attend the trial of the objective facts. It is submitted that an accused person has a fundamental right to be physically present at his or her trial and, because that cannot happen here, to allow the prosecution to proceed would be an abuse of process.
It is necessary to say something of the background facts before considering the legal issues involved.
Background circumstances
The accused is charged with two offences arising from the death of her daughter. The charges are as follows:-
“First Count
Statement of Offence
Manslaughter. (Section 13 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ka Touch between the 29th day of November 2001 and the 17th day of February 2002 at Kilburn, unlawfully killed Melinda Jacsraimien Long.
Second Count
Statement of Offence
Assault Occasioning Actual Bodily Harm. (Section 40 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ka Touch between the 29th day of November 2001 and the 17th day of February 2002 at Kilburn, assaulted Melinda Jacsraimien Long, a person under the age of 12 years thereby occasioning her actual bodily harm.”
The deceased in this case, Melinda Long, was born prematurely on 4th October, 2001. She was kept at the Women’s and Children’s Hospital (“WCH”) until 29th November, 2001 at which time she was taken home by the accused. The baby was re-admitted to the WCH on 31st January, 2002 and died on 17th February, 2002. It is the prosecution case that the deceased suffered numerous injuries whilst in the care of the accused between the dates of discharge and re‑admission. The deceased died of a brain injury but had also sustained fractures of her ribs, broken arms and broken legs. It is alleged by the prosecution that the deceased had been violently shaken by the accused as well as having been assaulted by her. The accused was spoken to by the police on 9th May, 2002 and allegedly admitted that the baby was in her sole care after leaving hospital until her return.
I have been informed that amongst the factual issues at any proposed trial would be that the deceased was not in the sole care of the accused during the period and that there was a limited time when she was in the care of the father; that the deceased was back in hospital for 19 days prior to the final operation and that part of the operative procedure may have contributed to or, in fact, caused the death. There is no need for me to comment further on those issues other than to note they may arise.
I note some further matters. The accused is a 34 year old Cambodian woman who is living with her mother and four year old son at Kilburn. By notice dated 1st June, 2004, the accused elected for trial by Judge alone. Further, there is a Rule 9 Notice on file seeking to exclude certain items of evidence, particularly a conversation between the police and the accused on 9th May, 2002.
The trial proceeded in the normal manner before Judge Kitchen commencing on 10th June, 2004. Although the issue of fitness to plead or stand trial was the subject of investigation before trial, eventually it was thought, at the commencement of the trial, that she was fit to stand trial. Ms O’Connor, who appeared before Judge Kitchen upon the trial and before me on this application, advised that the defence had obtained instructions from the accused on the facts and were in a position to proceed to trial.
Notwithstanding that the accused was initially fit to stand trial, the nature of the evidence led at trial caused an exacerbation of the accused’s psychiatric condition. Dr Raeside foresaw such a possibility in his report of 24th May, 2004. An investigation was undertaken pursuant to Part 8A of the CLCA. On 16th June, 2004, Judge Kitchen ruled that the accused was mentally unfit to stand trial pursuant to s 269H of the CLCA. His Honour ruled:-
“I am persuaded on the balance of probabilities that the accused is unfit to be tried by reason of her mental processes, being so disordered or impaired, that she is unable to exercise her procedural rights and unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings of this trial which was under way the space of one and a half days before concern arose as to the fitness of the accused to stand trial.”
His Honour also concluded that there was no reasonable prospect that the accused would regain the necessary mental capacity over the next twelve months.
The matter came on again before Judge Kitchen on 21st June, 2004 at which time the accused was not present. A short report from Dr Raeside of the same date explained her non-attendance in the following terms:-
“I am writing to indicate that I believe that Ms Touch is too unwell to both attend court and participate in ongoing legal matters at present. I interviewed her on 11/6/04 and 15/6/04 and gave evidence in court on both occasions about her mental state.
Ms Touch requires ongoing intensive psychiatric treatment and follow up with her treating psychiatrist, Dr Nick Adams, and may well require hospitalisation. Being exposed to ongoing evidentiary material in court about the death of her daughter is likely to seriously aggravate her current condition.”
An application for a permanent stay had been filed by that time. It is that application that is presently before the Court. If the application is not successful, the Court would then move to a consideration of the objective elements.
By a report dated 26th August, 2004, Dr Raeside updated the accused’s psychiatric condition. He provided this summary (pp 3-4):-
“In summary, I believe that Ms Touch continues to experience a moderately severe depressive disorder arising out of the circumstances of the death of her daughter and the subsequent legal matters. She has previously been identified as having an intellectual disability which further complicates the issues. She has an adequate understanding of the charges against her and a reasonable understanding of the court processes.
However, I continue to believe that Ms Touch would quickly become unfit to stand trial and quickly relapse to the state of depression and suicide risk that she was at the time of the aborted trial previously. I understand that there are still issues about the objective elements of the offence and am uncertain as to what to recommend as to how to sort that out. However, in my opinion, I think it would not be possible for Ms Touch to adequately sit in the court room, listen to the evidence against her, and participate appropriately in providing instructions to her defence counsel. Even with ongoing psychiatric treatment I would not be optimistic that her situation would improve sufficiently such that a trial could go ahead.”
The most recent psychiatric report is that from Dr Raeside of 24th March, 2005. Again relying on his summary, he had this to say (p 4):-
“In summary, Ms Touch appears to have had a further decline in her general mental health in recent weeks, possibly due to the current legal matters again coming to the fore, but also possibly following a visit to the Women’s and Children’s Hospital which seems to have produced a significant anxiety attack and probably has unsettled her since. In my opinion she continues to suffer from a Major Depressive Disorder, partially treated, complicated by underlying intellectual impairment.
As indicated in my previous report of 26/8/04 I continue to believe that Ms Touch would quickly become unfit to stand trial (if she is not already) and quickly relapses to the state of severe depression and suicide risk that she was at the time of the aborted trial previously. I do not think it would be possible for her to adequately sit in the court room, listen to the evidence against her, and participate appropriately in providing instructions to a defence counsel in a trial of objective facts.”
Discussion of the factual basis of the application
As previously noted, there is already a finding that she is unfit to stand trial. Although I would have the right to review such a finding if there was an adequate improvement in her psychiatric state, I was not asked by either counsel to undertake such a review. However, I can indicate that, had I been asked to undertake such a review, I would have come to the same conclusion. Divorced from the anticipation and pressure of a trial of the objective facts, she may be on the cusp of fitness, however, if forced to attend, I have no doubt she would be unfit to commence and stand trial. I propose to deal with the application on that basis. I accept and adopt Dr Raeside’s opinion.
I confirm my indication during the course of submissions that, given Dr Raeside’s opinion to which I have referred, I would not order that the accused attend Court for the purpose of any consideration of the objective facts. A consideration of the various reports and evidence given at the aborted trial (which includes the risk of self-harm) shows that the accused has some understanding of the trial procedures, but what caused or would cause a deterioration in her mental condition is the reminder of her child’s death that is necessarily involved in the trial. For that reason I would not even order the accused to be at Court, but not present in Court. For much the same reason I would not order her to attend at a place where she could view the proceedings by closed circuit television.
I therefore approach the application on the basis that the accused will not be present in Court for a consideration of the objective facts, nor will she be at Court or near at hand having seen and heard the evidence on closed circuit television. Further, she will not be in a position to provide ongoing instructions over and above the instructions provided prior to the aborted trial.
I return to the central question. Is the accused entitled to a permanent stay of the proceedings upon the basis that she will not be present (in any sense) during a consideration of the objective facts and will not be in a position to provide additional instructions?
Application of Part 8A CLCA
The Court has already recorded that the accused is mentally unfit to stand trial pursuant to s 269H CLCA. To put the matter beyond doubt, I make the same finding. Pursuant to s 269M that aspect was dealt with first.
That having been done, I decide that the Court should move to an application of s 269MB(1), namely, hearing “....evidence and representations put to the court by the prosecution and the defence....” relevant to the objective facts.
The section is silent as to whether the accused should be present or needs to be present for such a process. Further, the section is silent as to whether, if unable to be present because of mental unfitness in the form of mental illness, the trial of the objective facts cannot proceed.
The position at common law as to the accused’s presence at trial
There are a number of authorities on this point. It is convenient to start with R v Lee Kun (1916) 11 Cr App R 293. That case involved the trial of a man for murder, who was present at the trial but did not understand English. The accused was represented by counsel and no application was made to have the evidence interpreted. In the course of the judgment, Reading LCJ stated these matters of principle (at 300):-
“No trial for felony can be had except in the presence of the accused, unless he creates a disturbance preventing a continuance of the trial. (See Stephen’s Digest of Criminal Procedure, p. 194, and Rex v. Berry, 104 L.T.J. 110, per Wills J.; 1897.) Even in a charge of misdemeanour there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him, and have the opportunity, having heard it, of answering it. The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings. The prisoner may be unable, through insanity or deafness or dumbness, or the combination of both conditions, to understand the proceedings or to hear them, either directly or by reading a record of them, or to answer them either by speech or writing. In these cases a jury is sworn to ascertain whether the prisoner is ‘fit to plead’....”
The dictum was referred to in R v Howson (1982) 74 Cr App R 172 at 177. Those cases make it plain that the reason why an accused person should be present at trial is to hear the evidence against him or her and then have the opportunity to answer it.
In this State, the authorities were recently discussed in R v Collie [2005] SASC 148, delivered on 20th April, 2005. The appellant in that case was originally jointly charged with his wife with two counts of murder. His wife applied for a separate trial and that application was heard and determined in the absence of the appellant and his counsel and over objection. Ms Collie was unsuccessful in her application but the appellant was later successful in obtaining a trial separate from her.
The appellant was convicted. On appeal it was submitted that his trial was not conducted according to law because he was wrongly excluded from part of his trial. Duggan J (with whom Doyle CJ and Vanstone J agreed on this ground) reviewed the authorities and said this (paras 33-34):-
“As a general rule, an accused person must be present throughout his or her trial. Recognised exceptions to the rule include misbehaviour by the accused or voluntary absence such as by absconding. The general rule was stated by Lord Bingham in R v Jones [2002] 2 Cr App R 128 at [6] 1 as follows:
‘For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant (as in R v Abrahams (1895) 21 VLR 343 and R v Howson (1981) 74 Cr App R 172); or misbehaviour (as in R v Berry (1897) 104 L T Jo. 110 and R v Browne (1906) 780 J P 472); or because the defendant has voluntarily absconded (as in R v Jones (Robert) (No 2) (1972) 56 Cr App R 413, [1972] 1 W L R 887 and R v Shaw (Elvis) [1980] 1 W L R 1526). In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well‑established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.’
It is not altogether clear on the earlier authorities as to whether the rule is absolute in the sense that a breach will automatically vitiate the trial. This question is now linked with the consideration as to whether the proviso can be applied in such circumstances.”
Those discussions of principle relate to the absence, for one reason or another, of the accused from part of the trial, sometimes even an important part of the case, but certainly after the trial had commenced. The authorities do not discuss the situation where the accused does not attend at all, presumably for the very good reason that no arraignment would have taken place and therefore no issue joined between the prosecution and the accused. There would also be empanelment procedures to be adhered to, particularly the right of challenge. I also note that the discussions of principle relate to a trial proceeding in the normal manner or at least commencing in that way.
I was also referred to a recent High Court decision of Subramaniam v R 211 ALR 1. A detailed examination of the facts of that case is not necessary. The Court was considering the appellant’s trial under the Mental Health (Criminal Procedure) Act 1990 (NSW). The procedure under that legislation is quite different from that in Part 8A CLCA but its general purpose is the same. If there is a decision that a person is unfit to stand trial (applying the criteria of Smith J in R v Presser), a “special hearing” is conducted to determine whether the charge is proved to the normal criminal standard. Despite a finding of unfitness to be tried, the accused is entitled to give evidence.
In Subramaniam’s case, part of the appeal related to whether a permanent stay of the “special hearing” should have been granted by virtue of the appellant’s psychiatric condition, notwithstanding the statutory regime.
The case is distinguishable from the case at bar because the accused was present at trial. There were, however, similarities in that, following an earlier mistrial, the appellant began to manifest suicidal tendencies. Her deteriorating mental state was relevant in two ways, first, it prevented her from being able to give reliable testimony and, secondly, “further prosecution of the proceedings could have resulted in a serious worsening of her current mental state” (para 25). A permanent stay was said to be justified because of the oppression involved in the potential of a deterioration in her mental state.

Although the appeal was allowed because the primary Judge failed to explain to the jury the nature of the special hearing as required by s 21(4) of the New South Wales Act, the Court made general comments about applications to stay in the context of that legislation. The comments, which apply in a general sense to Part 8A, were as follows (para 28):-
“28.Stays in the context of the Act: One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end [see ss 26 and 28]. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a ‘limiting term’ of imprisonment that would have to be served if the person had been tried in the normal way [see ss 23(1)(b) and 24]. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General [see ss 19 and 20], provides reason to construe and apply the Act otherwise than according to its tenor.”
In the context of the facts of that case, the ground of appeal relating to the stay was rejected because no error had been shown by the trial Judge. However, the Court went on to say (para 35):-
“35..... This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare [see R v WRC (2003) 59 NSWLR 273]. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave.”
Principles to be applied on an application for a stay of proceedings
Although the application does not expressly rest on the accused’s mental condition per se or the real potential per se for its deterioration should she attend at any form of trial, Subramaniam’s case (supra) inclines me to say something on that topic.
The principles upon which the Court may grant a permanent stay of a prosecution had been the subject of development over the past couple of decades. There is no doubt that this Court has an inherent power to protect its processes from abuse. For present purposes, it is sufficient to rely upon passages in Walton v Gardiner (1993) 177 CLR 378 and cases referred to therein.
Mason CJ, Deane and Dawson JJ had this to say (at 392-3):-
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”
And later (at 395-6):-
“As was pointed out in Jago (see, in particular, (1989) 168 C.L.R., at pp. 30-34, per Mason C.J.; pp. 59-61, per Deane J.; p. 72, per Toohey J.; pp. 76-78, per Gaudron J.), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”
Something needs to be said about the weighing process. The charge of manslaughter is a very serious charge, allegedly involving not simply the unlawful causing of the death but the infliction of serious injuries upon the baby. There would be a strong community concern that any involvement of the accused and, if so, the extent of any involvement, be resolved promptly. Although there is no suggestion of any risk to the other child, the community would be right to be concerned if there is any proved involvement by the accused.
If proof is lacking that the accused was in any way involved in the death of her daughter or the injuries she sustained, then that should also be resolved in the community interest. Evidence may disclose the involvement of some other person.
Further, although the accused has a limited understanding of the trial process, she understands the nature of the charge. She is entitled to have her alleged involvement resolved. I have also taken into account that, if I grant the application, there is a much reduced risk of a deterioration in her mental condition.
Weighing the various considerations, the application, to the extent it related to her mental condition simpliciter, is rejected. In so deciding, I have had regard to the “common humanity” test in Hakim (1989) 41 A Crim R 372 (see also R v WRC (2003) 59 NSWLR 273).
Conclusion
I return to the central question I posed previously. Is the accused entitled to a permanent stay of the proceedings upon the basis that she will not be present (in any sense) during a consideration of the objective facts and will not be in a position to provide additional instructions?
In my view, the application for a permanent stay on this basis should be refused.
I am proceeding pursuant to Part 8A. The accused has been found mentally unfit to stand trial. I have decided to proceed first with the trial of the objective facts. There is an election of trial by Judge alone on all aspects. There is no arraignment, in the conventional sense, to be undertaken. There is no jury to be empanelled. The accused is not in a position, by virtue of her mental condition, to be present or give instructions or give evidence. She could not assist in any forensic sense. If she was present it would be in a physical sense and no more. She is represented by counsel who can put the prosecution to proof on the objective facts, particularly whether the accused caused any injury. Counsel also has instructions that were obtained prior to the aborted trial.
Although it would be expected that an accused would normally be present even upon the trial of the objective facts, on the facts of this case the trial is still able to properly proceed in her absence. Section 269MB is silent on the topic of the presence of the accused, and there is no absolute requirement that she be present for these purposes. Further, bearing in mind she could have no involvement and is represented by counsel, it is not unfair to her to proceed in her absence. In making this ruling, I am conscious of the fact that this is a discretionary remedy and should only be ordered in an extreme case.
The application is refused.