R v Touch

The case of R v Touch involves the accused, Ka Touch, who stands charged with two serious offences arising from the death of her infant daughter, Melinda Jacsraimien Long. The charges include manslaughter under Section 13 of the Criminal Law Consolidation Act, 1935, and assault occasioning actual bodily harm under Section 40 of the same Act. Melinda, who was born prematurely, died at the Women’s and Children’s Hospital after sustaining severe injuries while in the care of her mother. The prosecution alleges that Melinda suffered multiple injuries, including fractures and a fatal brain injury, due to violent shaking and assault by the accused. The accused, a 34-year-old Cambodian woman, elected for trial by Judge alone and the trial was set to commence before Judge Kitchen. However, concerns about the accused's fitness to stand trial were raised, leading to a complex legal inquiry into her mental condition and its impact on her ability to participate in the trial.

The primary legal issue before the court was whether the accused's mental condition warranted a permanent stay of the proceedings, considering her inability to be present or provide instructions during the trial. The court had to balance the accused's right to a fair trial with her current mental state, applying the "common humanity" test to determine if proceeding without her presence would be just and reasonable. The court also considered the statutory provisions under Section 269MB of the Criminal Law Consolidation Act, which provides for the trial of objective facts in cases where the accused is mentally unfit to stand trial. The court examined whether the accused's absence during the trial of objective facts would constitute an unfair trial, despite her being represented by counsel.

In its ruling, the court concluded that the application for a permanent stay should be refused. The court found that the accused, although mentally unfit, could not be present or provide instructions during the trial, yet the proceedings could still proceed in her absence. The court held that the statutory provisions allowed for the trial of objective facts without the accused's presence and that it was not unfair to proceed in her absence given she was represented by counsel. The court emphasized that the accused's right to a fair trial could still be upheld, even if she could not physically or mentally participate. The decision to proceed with the trial in the accused's absence was deemed necessary and appropriate in this extreme case, ensuring that justice could be served without further delay.