R v Chute (No 4)

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Mossop J
• Judgment Date: 11 September 2018
• Docket Number: File Number: SCC 178 of 2016
• Date: 11 September 2018

[2018] ACTSC 259

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop J

File Number: SCC 178 of 2016

The Queen

(Crown)

and

John Chute

(Accused)

Representation:

Counsel

J Hiscox (Crown)

G Walsh (Accused)

Cases Cited:

Aboud v Attorney-General for New South Wales (1987) 10 NSWLR 671

Arrivoli v R [2017] NSWDC 112

Barton v The Queen (1980) 147 CLR 75

Boulos v R [2008] NSWCCA 119

Director of Public Prosecutions, South Australia v B [1998] HCA 45; 194 CLR 566

Dupas v The Queen [2010] HCA 20; 241 CLR 237

Hakim (1989) 41 A Crim R 372

Jago v District Court of New South Wales (1989) 168 CLR 23

Jenkins v Whittington [2017] NTSC 65

Lipohar v The Queen [1999] HCA 65; 200 CLR 485

Maxwell v The Queen (1996) 184 CLR 501

McDonald v The Queen [2016] VSCA 304; 263 A Crim R 356

R v Abrahams (1895) 21 VLR 343

R v Chute [2017] ACTSC 246

R v Chute (No 2) [2017] ACTSC 347

R v Chute (No 3) [2017] ACTSC 409

R v Edwards [2009] HCA 20; 83 ALJR 717

R v Glennon (1992) 173 CLR 592

R v Hallocoglu (1992) 29 NSWLR 67

R v Howson (1981) 74 Cr App R 172

R v Jones (1998) 72 SASR 281

R v Jones (No 2) [1972] 1 WLR 887

R v Richardson [2016] ACTSC 22; 307 FLR 8

R v WRC [2003] NSWCCA 394; 59 NSWLR 273

R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1

Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116

TS v R [2014] NSWCCA 174

Walton v Gardiner (1993) 177 CLR 378

Legislation Cited:

Bail Act 1992 (ACT), s 30

Court Procedures Act 2004 (ACT), s 76

Crimes Act 1900 (ACT), ss 61, 79, 81, 92K(2), 300(1), 316, 316(1), 316(2), 316(6), 316(7), 317, 317(3), 317(4), 318, 318(2), 318(2)(b), 319, 319(2), 441, 441A

Crimes (Amendment) Ordinance (No 5) 1985 (ACT)

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

Crimes Legislation Amendment Act 2001 (ACT), s 61

Crimes Legislation Amendment Act 2013 (No 2) (ACT)

Criminal Code 1899 (Qld), s 617

Criminal Code Act (NT), s 361(1)

Criminal Code Act (Tas), s 369(2)

Criminal Procedure Act 1986 (NSW), ss 56, 130

Criminal Procedure Act 2009 (Vic), s 330(3)

Criminal Procedure Act 2004 (WA), s 88(4)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), 32

Human Rights Act 2004 (ACT), ss 21, 22

Law Reform (Sexual Behaviour) Ordinance 1976 (ACT), s 6

Mental Health (Forensic Provisions) Act 1990 (NSW), s 21(1)

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Stay of proceedings — applicant accused of sexual offences against children — found unfit to plead — election made for trial by judge alone — application for permanent stay based on poor health and delay — whether accused person who is unfit to plead required to attend special hearing — likely outcome of proceedings if special hearing does not lead to acquittal — delay — continuation of proceedings not involving unacceptable injustice or unfairness or an abuse of process — permanent stay refused

Decision

The Application in Proceeding dated 12 October 2017 is dismissed.

Mossop J

Procedural history

1 On 24 July 2017, Murrell CJ found that the accused, John Chute, was unfit to plead to an indictment containing 16 counts: R v Chute [2017] ACTSC 246. Her Honour ordered that the matter be listed for a special hearing under s 316 of the Crimes Act 1900 (ACT).

2 By Application in Proceeding, filed on 12 October 2017, the accused sought an order that there be a permanent stay of the special hearing. The grounds for that application were as follows:

1.1. The continuation of these proceedings by way of special hearing will involve an unacceptable injustice or unfairness to the Accused.

1.2. The allegations date back to 1979, some 38 years ago, and as a consequence, the Accused will be severely prejudiced in his defence by this extraordinary delay.

1.3. The Accused suffers from poor health, such that he is unfit to be tried and he has cognitive and memory deficits that significantly impair his ability to defend those allegations.

1.4. The circumstances involved in this prosecution are so unfairly and unjustifiably oppressive as to constitute an abuse of process.

3 The special hearing was listed to commence on 4 December 2017.

4 I heard argument in relation to the application for a stay on 15 and 16 November 2017. During the course of argument in relation to the stay it became clear that, following the decision of Murrell CJ, neither the parties nor the Court had given any consideration to the operation of s 316(2) of the Crimes Act. That subsection permits a person who has been found unfit to plead to elect, either directly or via a guardian, to have the special hearing conducted as a trial by judge alone as opposed to a trial by jury. I heard argument on the issue and on 17 November 2017 determined a trial by judge alone was available and that the accused remained entitled to make an election: R v Chute (No 2) [2017] ACTSC 347. Subsequently, further medical evidence was tendered and, on the basis of that evidence, I was satisfied that the accused was incapable of making an election to have his special hearing conducted by judge alone: R v Chute (No 3) [2017] ACTSC 409. I therefore directed that the Australian Capital Territory (ACT) Civil and Administrative Tribunal (ACAT) appoint a guardian to consider whether to make such an election.

5 The matter was mentioned before me on 15 February 2018, at which time it was anticipated that the ACAT would shortly appoint a guardian to consider the making of an election. In May 2018 it emerged that neither the registry nor either party had communicated the orders to the ACAT and it was for that reason that no appointment had been made.

6 On 19 June 2018, the ACAT appointed William Tarrant, a member of the Marist Brothers religious order, as guardian for the accused with power to make an election for the proceedings to be by judge alone.

7 On 26 July 2018, Mr Tarrant made an election for the special hearing to be a trial by a single judge without a jury.

8 On 9 and 20 August 2018, the parties indicated that they did not wish to be further heard in relation to the application for a stay of the special hearing. It is, therefore, now possible to determine that application upon the evidence and submissions previously made in light of the fact that the special hearing would be conducted before a judge sitting without a jury.

The Crown case

9 The accused is facing 16 charges. They are summarised in the following table. I have referred to the various complainants as Complainant 1, Complainant 2 et cetera.

Count	Offence	Date	Complainant
1	s 81, Crimes Act	1 January 1980 — 31 December 1980	Complainant 1
2	s 81, Crimes Act	1 January 1980 — 31 December 1980	Complainant 1
3	s 81, Crimes Act	1 January 1981 — 31 December 1981	Complainant 1
4	s 81, Crimes Act	1 January 1981 — 31 December 1981	Complainant 1
5	s 81, Crimes Act	1 January 1985 — 27 November 1985	Complainant 2
6	s 81, Crimes Act	1 January 1985 — 27 November 1985	Complainant 2
7	s 92K(2), Crimes Act	1 January 1986 — 31 December 1986	Complainant 2
8	s 92K(2), Crimes Act	1 January 1987 — 31 December 1987	Complainant 2
9	s 81, Crimes Act	1 January 1979 — 31 December 1979	Complainant 3
10	s 81, Crimes Act	1 May 1979 — 1 October 1979	Complainant 3
11	s 81, Crimes Act	1 February 1981 — 1 April 1981	Complainant 4
12	s 81, Crimes Act	1 January 1981 — 31 December 1981	Complainant 4
13	s 79, Crimes Act	1 October 1981 — 31 December 1981	Complainant 4
14	s 81, Crimes Act	1 January 1979 — 31 December 1979	Complainant 5
15	s 81, Crimes Act	1 January 1976 — 31 December 1976	Complainant 6
16	s 81, Crimes Act	1 January 1976 — 31 December 1976	Complainant 6

10 The charges under s 81 allege that the accused indecently assaulted a male person without the effective consent of that person, being a person under the age of 16 years. The charges under s 92K(2) are charges of committing an act of indecency upon the complainant, being a person of or above the age of 10 years but under the age of 16 years. The charge under s 79 is a charge of buggery without an effective consent of the complainant.

11 The offences in relation to Complainant 1 are alleged to have occurred when he was nine or 10 years old. He was a student at Marist College. Count 1 involved fondling the complainant's genitals over his underwear. Count 2 involved fondling the complainant's genitals over the top of his pants and then taking the complainant's hand and putting it on his lap over his penis. Count 3 involved the accused putting his hands down the complainant's pants and fondling his genitals. Count 4 involved putting his right hand down the complainant's pants and grabbing his penis. Complainant 1 first complained to another teacher at the time. In 2008 he told his wife about the incidents. He then spoke to a solicitor from Porters Lawyers. The complainant contacted police to report the incidents in late 2015 and participated in a recorded interview in 2016.

12 Complainant 2 was at the relevant time 12 to 14 years old. The accused taught him religious studies at Marist College. Count 5 is alleged to involve the accused giving Complainant 2 a bear hug, placing his hands inside the complainant's pants and fondling his genitals. Count 6 allegedly occurred when Complainant 2 was sitting at a desk and the accused was walking between the desks and rubbed his genitals against the complainant's arms and elbows. Count 7 allegedly occurred when Complainant 2 was 13 or 14 years old. The accused had invited several boys to work in the “pie wagon” during a rugby union carnival. The accused grabbed him in a bear hug and placed his hands down the complainant's pants, fondling his genitals inside his underpants for a few minutes. Count 8 is alleged to have occurred when Complainant 2 was...