R v Touch (No 2) - [2006] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TOUCH (No 2)
Criminal Trial by Judge Alone
[2006] SADC 100
Reasons for the Verdicts of His Honour Judge Rice
25 August 2006
CRIMINAL LAW
Manslaughter - trial by Judge alone - accused unfit to stand trial - consideration of the objective elements - accused alleged to have caused the death of her baby following two separate occasions of trauma and/or violent shaking - medical intervention necessary to prevent intracranial bleeding and death - death after insertion of an atrial shunt - consideration of whether the accused's actions were a substantial cause of death.
Held: objective elements of the offence are established - a finding to that effect is recorded - it is declared that the accused is liable to supervision.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Macaskill (No 2) 81 SASR 155; R v Pagett (1983) 76 CrimAppR 279 at 288; Royall v R (1990) 172 CLR 378 at 398; R v Bristow (1960) SASR 210; R v Jordan (1956) 40 CrimAppR 152; R v Smith [1959] 2 QB 35; R v Bingapore (1975) 11 SASR 469; R v Hallett [1969] SASR 141; R v Evans & Gardiner (No 2) [1976] VR 523; R v Wilson (1991-2) 174 CLR 313, considered.

R v TOUCH (No 2)
[2006] SADC 100

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 accused elected for a trial without a jury.
Background to this trial
The conduct of the trial before me requires some explanation.
A trial upon these charges commenced before another Judge of this Court in June, 2004. That was also a trial without a jury. The accused was present for that trial. As mentioned, the main charge against her alleged that she unlawfully killed her daughter. As the evidence progressed, a question arose as to whether the accused had become “unfit” such that the trial should not continue. Psychiatric reports were obtained and evidence given before the trial Judge on her fitness to continue with the trial. After a consideration of that material, the trial Judge ruled that she was unfit to attend Court. An investigation was then undertaken for the purposes of Part 8A of the Criminal Law Consolidation Act 1935.
On 16 June, 2004 the trial Judge ruled that the…

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 (No 2)

Details

AGLC: R v Touch (No 2) [2006] SADC 100
Case: [2006] SADC 100
Decision Date: 25 August 2006

CaseChat Overview and Summary

The accused was charged with two offences arising from the death of her baby: manslaughter and assault occasioning actual bodily harm. The accused was unfit to stand trial, and the court had to decide the objective elements of the offence and whether the accused's actions were a substantial cause of death. The court found that the objective elements of the offence were established, and the accused's actions were a substantial and operating cause of the death of the baby. The court held that the accused was liable to supervision. The court found that the accused's actions were both unlawful and dangerous, and a reasonable person in the accused's position would have realised that she was exposing the baby to an appreciable risk of serious injury. The court found the objective facts of manslaughter proved against the accused.

Orders