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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Touch

Details

AGLC: R v Touch [2005] SADC 65
Case: [2005] SADC 65
Decision Date: 16 June 2005

CaseChat Overview and Summary

This case involved an application for a permanent stay of proceedings in a criminal trial, on the basis that the continuation of the trial would be an abuse of process. The accused was mentally unfit to stand trial, and it was argued that her presence at the trial of the objective facts would exacerbate her mental condition, making it impossible for her to participate in the proceedings. The accused had elected for trial by judge alone, and there was no jury to be empanelled. The court considered the principles of the common law, and the statutory provisions of Part 8A of the Criminal Law Consolidation Act 1935. It was held that the application for a permanent stay should be refused, and that the trial could proceed in the absence of the accused. The judge found that there was no absolute requirement for the accused to be present for the consideration of the objective facts, and that it was not unfair to proceed in her absence, given that she could not assist in any forensic sense and was represented by counsel who had obtained instructions prior to the aborted trial. The decision was made in accordance with the balancing test, weighing the interests of the accused against the public interest in the resolution of the charges. The court emphasized that the discretionary remedy of a stay should only be ordered in an extreme case.

Orders