R v Chute (No 10) - [2019] ACTSC 73

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chute (No 10)
Citation:	[2019] ACTSC 73
Hearing Dates:	19, 20 and 21 March 2019
DecisionDate:	28 March 2019
Before:	Mossop J
Decision:	The accused is found not guilty on count 1 and 13. The proceedings are adjourned.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Historical child sexual offences – special hearing due to unfitness to plead – special hearing conducted by judge alone – allegations of indecent assault and commission of an act of indecency – whether proved beyond reasonable doubt that accused “engaged in the conduct required for the offence charged” – evidence of complainants not challenged
Legislation Cited:	Crimes Act 1900 (ACT), ss 79, 81, 92K, 92K(2), 316, 316(1), 316(6), 316(7), 316(8), 316(9), 316(9)(c), 317, 317(3), 317(4), 318, 318(2), 319, 319(2), Pt 3 Crimes (Amendment) Act (No 5) 1985 (ACT) Crimes Amendment Act 2004 (ACT) Crimes (Amendment) Act (No 5) 1985 (ACT) Crimes Amendment Bill (No 2) 2004 (ACT) Crimes Legislation Amendment Act 2013 (No 2) (ACT), ss 441, 441(1), 441(2) Criminal Code 2002 (ACT), ss 13, 14, 15 Evidence Act 2011 (ACT), ss 165, 108C, 165B Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 41, 80, 80A, 80B, 80C, 80D, Ch 4, Div 4.4.4 Law Reform (Sexual Behaviour) Ordinance 1976 (ACT), ss 3, 4, 5(a), 5(b), 5(c), 6 Legislation Act 2002 (ACT), s 102 Royal Commission Criminal Justice Amendment Act 2018 (ACT) Supreme Court Act 1933 (ACT), ss 68C, 68C(2), 68C(3)
Cases Cited:	AK v Western Australia [2008] HCA 8; 232 CLR 438 Fleming v The Queen [1998] HCA 68; 197 CLR 250 R v Ardler [2003] ACTSC 24; 175 FLR 272 R v Ardler [2004] ACTCA 4; 144 A Crim R 552 R v Chute [2017] ACTSC 246 R v Chute (No 4) [2018] ACTSC R v Chute (No 6) [2019] ACTSC 53 R v Mulcahy [2010] ACTSC 98
Texts Cited:	Explanatory Statement, Crimes Amendment Bill (No 2) 2004 (ACT)
Parties:	The Queen (Crown) John William Chute (Accused)
Representation:	Counsel K Lee (Crown) G Walsh (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused)
File Number:	SCC 178 of 2016

MOSSOP J:

Introduction

John William Chute has been subject to a special hearing under s 316 of the Crimes Act 1900 (ACT). That has taken place because he was found unfit to plead: R v Chute [2017] ACTSC 246.

On the assumption that these proceedings are “sexual offence proceedings” (as to which see [38] below), s 74 of the Evidence (Miscellaneous Provisions)Act 1991 (ACT) prohibits publication of the complainant’s identity or a reference or allusion from which the complainant’s identity might reasonably be worked out. Because of the potential application of that provision, the names of complainants and witnesses who gave complaint evidence have been anonymised.

The accused had a religious name of Brother Kostka. The witnesses referred to him as such. In these reasons he is referred to as the accused…

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 Chute (No 10)

Details

AGLC: R v Chute (No 10) [2019] ACTSC 73
Case: [2019] ACTSC 73
Decision Date: 28 March 2019

CaseChat Overview and Summary

In R v Chute (No 10), the accused faced a special hearing due to unfitness to plead, concerning historical allegations of child sexual offences. The charges included indecent assault and commission of an act of indecency. The court had to determine whether the prosecution proved beyond reasonable doubt that the accused "engaged in the conduct required for the offence charged." The special hearing was conducted by a judge alone, as is permitted in such cases.

The central legal issue revolved around the burden of proof in a special hearing. The court had to assess whether the prosecution met its onus to establish the essential elements of the alleged offences. The accused did not challenge the evidence presented by the complainants, which described the incidents in detail. This left the court to focus on the applicability of the evidence to the statutory criteria for a conviction.

The court found that the prosecution had not met the requisite burden of proof for two of the charges, leading to a not guilty verdict on counts 1 and 13. The remaining charges were not addressed in the ruling, and the proceedings were adjourned, leaving open the possibility for further legal action on the unresolved counts. The decision underscores the high threshold for conviction in special hearings and the importance of clear and compelling evidence in such proceedings.

Orders

Orders of the court

The accused is found not guilty on count 1 and 13. The proceedings are adjourned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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