R v Chute

[2019] ACTSC 197

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Chute

Citation:

[2019] ACTSC 197

Hearing Date:

25 July 2019

DecisionDate:

30 July 2019

Before:

Mossop J

Decision:

See [27]-[29]

Catchwords:

EVIDENCE – FITNESS TO PLEAD – Accused found unfit to plead in earlier proceedings – accused remains unfit to plead – accused is unlikely to become fit to plead within 12 months – ACT Civil and Administrative Tribunal directed to appoint a guardian – guardian empowered to make an election under s 316(2) Crimes Act 1900 (ACT)

EVIDENCE – SUBPOENAS – Disclosure of protected confidences – whether there is a legitimate forensic purpose under s 79F Evidence (Miscellaneous Provisions) Act 1991 (ACT) – when evidence ‘would materially assist the applicant’s case’ under s 79F(2)(b)

Legislation Cited:

Crimes Act 1900 (ACT), ss 92(2)K, 92E(2), 314, 316(2), 316(3)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79A, 79F, 79G, Div 4.4.3

Legislation Act 2001 (ACT), s 139

Cases Cited:

In the matter of an application by McInnes [2009] ACTSC 29

R v Basham [2009] ACTSC 142
R v Chute [2017] ACTSC 246
R v Chute (No 5) [2019] ACTSC 52
R v NS [2016] ACTSC 346; 12 ACTLR 64

R v O’Rafferty [2016] ACTSC 141

Parties:

The Queen (Crown)

John William Chute (Accused)

Representation:

Counsel

P Dixon (Crown)

G Walsh (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Greg Walsh & Co (Accused)

File Number:

SCC 93 of 2019

MOSSOP J:

Introduction

1. John William Chute faces seven counts of committing an act of indecency on a young person contrary to s 92K(2) of the Crimes Act 1900 (ACT) and two counts of sexual intercourse with a young person contrary to s 92E(2) of that Act. The offences are alleged to have occurred between 30 June 1988 and 6 December 1990 at a time when Mr Chute was a teacher at the Marist College, Canberra and the complainant who I will refer to as SQ was a student there.

1. Mr Chute was committed for trial by the Magistrates Court on 1 May 2019. The proceedings were first before me on 25 July 2019.

Fitness to plead

1. Counsel for Mr Chute raised the issue of his fitness to plead. In earlier proceedings against him in this court he has been found to be unfit to plead: R v Chute [2017] ACTSC 246 (Murrell CJ). Being satisfied that there was a real and substantial question about his fitness to plead, I reserved the question for investigation: Crimes Act s 314. I admitted evidence relevant to that issue including material relied upon for the purposes of the previous finding, as well as expert and lay evidence arising since the earlier determination. Both parties contended that Mr Chute was unfit to plead.

1. I adopt the statement of principles set out by Murrell CJ in her earlier decision at [5]-[10]. The evidence that was before the Chief Justice was also before me and I adopt her  Honour’s summary of the evidence and reasons for concluding that he was unfit to plead as at the date of her Honour’s decision (July 2017). The position since then has not substantially changed. The evidence in the reports of Dr John Roberts, a forensic psychiatrist (dated 3 November 2017, 28 November 2017, 8 February 2019, 5 March 2019 and 6 March 2019), and the factual observations  Mr Walsh, the solicitor for the accused, recorded in his various affidavits in earlier proceedings (10 October 2017, 20 November 2017 and 4 March 2019) which were also in evidence and his affidavits in the present proceedings (3 July 2019 and 19 July 2019) make it clear that, while the accused’s deterioration has been slower than might have been expected, he remains unfit to plead. I was satisfied that he is unlikely to become fit to plead within the next 12 months.

1. For those reasons I made the order required by s 316(3) of the Crimes Act directing the ACT Civil and Administrative Tribunal (ACAT) to appoint a guardian for the purposes of making an election under s 316(2) of the Act.

Application to have subpoenas issued

1. By Application in Proceeding dated 23 July 2019, the accused seeks leave in accordance with div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for subpoenas to be issued to:

(a)Linda Clifton, psychologist;

(b)Trustees of the Marist Order; and

(c)Professor Lorraine Dennerstein.

1. The application was made and argued on the basis that the subpoenas would seek the disclosure of protected confidences. A protected confidence is “a counselling communication made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed”: see s 79A of the Evidence (Miscellaneous Provisions) Act. There may be an issue as to whether or not documents held by Professor Dennerstein and the Trustees of the Marist Order are protected confidences. However, that is not an issue which I need to determine on the present application.

1. A similar application was made in earlier criminal proceedings against Mr Chute: R v Chute (No 5) [2019] ACTSC 52 (Chute (No 5)). In that decision I said:

3.In dealing with this application I have adopted the same approach as approved by Refshauge J in R v WR (No 2)[2009] ACTSC 110 at [33], namely, to first consider whether there is a legitimate forensic purpose under s 79F and then, if so satisfied, permit a subpoena to be issued in order to obtain the documents so as to be able to conduct a preliminary examination of them under s 79G before deciding under s 79H whether to give leave for the disclosure of the protected confidence.

4.Section 79F obliges the court to refuse leave if the court is not satisfied that the applicant has established a “legitimate forensic purpose” for seeking the leave. In order to establish such a purpose, s 79F(2) requires the applicant to:

(a)identify a legitimate forensic purpose for seeking the leave; and

(b)satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.

5.The concept of legitimate forensic purpose is well-established. So far as (b) is concerned the legislative formulation requires that there be established at this stage an “arguable case” that the evidence in relation to which leave is sought “would materially assist” the applicant’s case in the proceedings.

The operation of s 79F(2)(b)

1. In Chute (No 5) at [7] and [19], I referred to the difficulty in interpreting the threshold test in s 79F. In that case, the late stage of the proceedings and the limited arguments on the application meant that it was not an appropriate case in which to confront the interpretive problem. The difficulty arises from the requirement in s 79F that the applicant for leave must satisfy the court that there is an “arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding”. The difficulty arises because of the use of the word “arguable” and the word “would”. The issue of whether the threshold for the grant of leave has been met is one which will usually need to be determined in circumstances where the applicant for the order has no detailed idea of what might be contained in the documents. As a practical matter it will therefore only be possible to identify, having regard to the nature of the documents and the time when they were brought into existence, forensically significant matters which they might contain. It is in that context that it is necessary to work out the relationship between the reference to “arguable” and “would”.

1. The critical point of distinction is whether the word “arguable” means arguable on the basis of proven facts or whether it extends to circumstances where the proposition is arguable on the basis of reasonably possible facts. Generally speaking, to identify a proposition as “arguable” suggests that the factual basis for the argument is proven and the argument is as to the characterisation or consequences of those proven facts. If that interpretation is adopted, then the threshold test in s 79F(2) focuses on whether it is arguable that the known facts are facts which “would materially assist” the applicant’s case. If fact X could be established then it would be open to argue that fact X materially assisted the applicant’s case. If fact X was only a possibility, then it could not be said that there was “an arguable case” that fact X would materially assist the applicant’s case. The difficulty for this interpretation is that it would mean that the threshold requirement was one which could rarely be met. That is because, as I have pointed out earlier, the usual situation is that the specific contents of the documents are unknown. It would be insufficient to point out that, having regard to the nature of the documents and the time at which they were brought into existence, they might assist the applicant’s case. Rather, in order to overcome the threshold, sufficient facts would need to be proven in order to permit the proposition that they would materially assist the applicant’s case to be an arguable one.

1. The alternative interpretation of the section is that there may be an arguable case even if the facts necessary to establish that it “would materially assist” the applicant have not been established. For the reasons given above, this is not the natural reading of the paragraph. It incorporates into the concept of arguability not only the issue of the characterisation and consequences of the known facts but also reasonable possibilities about what those facts might be. It means that if there is a reasonable possibility having regard to the known circumstances surrounding the documents being brought into existence that fact X exists, then it is open to consider whether fact X would materially assist the applicant’s case.

1. In R v NS [2016] ACTSC 346; 12 ACTLR 64, Burns J identified this issue. He reviewed previous decisions including: In the matter of an application by McInnes [2009] ACTSC 29 (McInnes), R v O’Rafferty [2016] ACTSC 141 and R v Basham [2009] ACTSC 142. In each of those cases, his Honour identified that the legitimate forensic purposes identified by the applicants were all expressed at a “reasonably high level of abstraction”. He continued (at [21]): “whether that was the intention of those who framed the provisions is debatable”.

1. He then set out the relevant part of the explanatory memorandum for the Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) which included:

Counsel should identify expressly and with precision the legitimate forensic purpose for which he or she is seeking access to the documents. It is insufficient for an applicant to say merely that it may assist their case.

1. His Honour then said (at [22]):

The expectation expressed in the Explanatory Statement that counsel would be required to ‘identify expressly and with precision the legitimate forensic purpose for which he or she is seeking access to the documents’ is likely to prove unrealistic in many cases, because in the absence of knowledge of the contents of the documents the party seeking access will usually have to express the asserted legitimate forensic purpose at a high level of abstraction such as, for example, to test the credibility of the complainant by reference to prior inconsistent statements about the alleged offence. In the light of the vagueness of the language in the Explanatory Statement, this may well be all that was intended.

1. His Honour then went on to consider the substantial issue of whether or not the threshold test continued to govern the scope of the material to which access might be given following the preliminary examination contemplated under s 79G. He concluded that it did not.

1. In interpreting a provision such as s 79F(2)(b), the terms of explanatory material presented to the Legislative Assembly may be of great significance. It may clearly disclose that an interpretation of an Act which is less convenient in practice or involves a greater departure from the status quo was clearly intended by the legislature. If that was the case then it would clearly be the duty of the court to give effect to that legislative purpose: Legislation Act2001 (ACT), s 139. Burns J correctly identified that the language used in the explanatory statement was insufficient to clearly indicate the legislative purpose of the provision. The sentence “It is insufficient for an applicant to say merely that it may assist their case” may be read as emphasising either:

(a)That it is not enough that the evidence “may” assist the applicant’s case. In other words, it is necessary to establish that the evidence “would” assist the applicant’s case.

(b)It is not enough for the applicant to identify as the forensic purpose that the evidence “may assist their case” generally. Rather, as indicated by the sentence in the memorandum preceding the one currently in question (quoted at [13] above), a particular forensic purpose should be identified expressly and with precision.

1. The existence of the earlier sentence referring to the need to identify “expressly and with precision” the legitimate forensic purpose indicates to me that the latter interpretation of the explanatory statement should be adopted. That in turn weakens the proposition that subs (2)(b) requires that the facts about the material assistance of the evidence to the applicant’s case be established on the balance of probabilities at the threshold stage, rather than being merely reasonable possibilities on the basis of the known facts.

1. Although none of the authorities prior to the decision in R v NS have considered the issue in detail, the interpretation that I have identified is consistent with the approach adopted in those authorities: see McInnes at [15]-[16]; R v Basham at [8]-[11]; R v O’Rafferty at [16].

1. For these reasons I proceed on the basis that the requirement in s 79F(2)(b) that there be “an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding” is to be interpreted as if the reference to an “arguable case” was the equivalent of “a reasonable possibility in light of the known facts” and did not require at the threshold stage the establishment of the facts that provide the material assistance.

The circumstances of this case

1. The offences in question are alleged to have occurred between 1988 and 1990.  The Crown alleges that all the acts of indecency and acts of sexual intercourse occurred in the office of the accused, except for one occasion which occurred at a school movie night.

1. The statement of SQ discloses that he saw the psychologist Linda Clifton in early 2018. The Crown case is that this was the first disclosure of the incidents. There is some unclear evidence which suggests it is possible that there was an earlier disclosure to a different psychologist. However, it may be that the reference to this disclosure is also a reference to the 2018 disclosure to Ms Clifton. The complainant has made a claim against the Trustees of the Marist Order and is represented by Porters Lawyers in those proceedings. The evidence discloses that a report of Prof Dennerstein has been served on the Trustees for the purposes of that claim.

1. The Crown does not intend to call Ms Clifton or Prof Dennerstein.

1. It is likely that the principal issue at the special hearing will be whether or not the complainant’s evidence about the incidents may be accepted beyond a reasonable doubt.

1. Counsel submitted that having regard to the lengthy delay in making any complaint and the profession of the complainant, what was said by way of initial complaint to Ms Clifton is likely to be of importance.  That was particularly so having regard to the evidence in SQ’s statement that his memories had “all [come] flooding back to me” when he had read a newspaper article in relation to the Marist College.

1. Counsel similarly submitted that the history given for the purposes of a civil claim for damages to Prof Dennerstein (and Ms Clifton if a report has been prepared for the purposes of that claim) would be significant.

1. He also submitted that it is important to know the modalities of treatment used in the course of the treatment of the complainant’s symptoms as the use of particular modalities may affect the credibility of the complainant. I accept the submissions of counsel for the accused that in the circumstances of this case the material sought pursuant to the proposed subpoenas may be of significant assistance for the accused in a case which depends upon the honesty and reliability of the complainant’s evidence.

1. Having regard to the nature of the case, the length of time between the alleged incidents and the complaint being made to police, I am satisfied that there is:

(a)a legitimate forensic purpose for the issuing of the subpoenas; and

(b)that there is in the sense I have explained at [9]-[19] above, an arguable case that the material in the documents sought pursuant to the subpoenas will materially assist the applicant’s case in the proceedings.

1. For these reasons I must conduct a “preliminary examination” of the evidence and decide whether leave should be given.

1. The orders of the Court are:

1.     The Registrar is directed to issue subpoenas in the form of the subpoenas annexed to the Application in Proceedings dated 23 July 2019.

2. Each subpoena is to be endorsed on the front page with the words: “This subpoena is issued pursuant to s 79G(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)”.

3.     The last day for service of each subpoena is Tuesday, 13 August 2019 and the return date for each subpoena is Thursday, 29 August 2019.

4.     The accused is to serve a copy of each subpoena on Porters Lawyers by the last day for service.

5.     The accused is to file and serve by Tuesday, 20 August 2019, affidavits of service for each subpoena served.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 30 July 2019