R v Chute (No 2)
[2020] ACTSC 41
•21 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chute (No 2) |
Citation: | [2020] ACTSC 41 |
Hearing Date: | 21 February 2020 |
DecisionDate: | 21 February 2020 |
Before: | Mossop J |
Decision: | Non-acquittal and no further action taken: see [37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Historical child sexual offences – special hearing due to unfitness to plead – special hearing conducted by judge alone – acts of indecency upon and in the presence of the complainant – evidence of complainant and other Crown witnesses not challenged – non-acquittal verdict |
Legislation Cited: | Crimes Act 1900 (ACT), ss 92K(2), 316, 317(4), 318 |
Cases Cited: | R v Chute [2019] ACTSC 197 R v Chute (No 9) [2019] ACTSC 69 R v Chute (No 11) [2019] ACTSC 91 |
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
This is yet another case arising out of the conduct of John William Chute, also known as Brother Kostka, at the Marist College, a school which was conducted by the Marist Brothers religious order at Pearce in the Australian Capital Territory.
Mr Chute is charged with seven counts of committing an act of indecency either upon or in the presence of a young person. Each count on the indictment is alleged to have occurred between 30 June 1988 and 6 December 1990 when the complainant, who I will refer to as SQ, was between 10 and 16 years old. Counts 1, 3, 4 and 7 are counts alleging an act of indecency committed “upon” the complainant. Counts 2, 5 and 6 allege an act of indecency committed “in the presence of” the complainant. The provision alleged to have been contravened is s 92K(2) of the Crimes Act 1900 (ACT), a provision which was in force at the relevant time but is now no longer in force.
Mr Chute was found unfit to plead: R v Chute [2019] ACTSC 197 at [3]-[5]. The hearing proceeded by way of a special hearing pursuant to s 316 of the Crimes Act. On 25 July 2019 an order was made permitting evidence led in relation to each alleged offence to be admitted as tendency evidence in relation to each other alleged offence.
Having regard to the state of health of Mr Chute and his unfitness to plead, following his arraignment at which he appeared by video link, he was excused from further attendance at the hearing. That course was adopted without objection. It was the same course adopted in relation to an earlier special hearing: see R v Chute (No 9) [2019] ACTSC 69 at [12]-[18].
The elements
The elements of the offence that need to be proved in a special hearing are those I have described in R v Chute (No 10) [2019] ACTSC 73 (Chute (No 10)) at [51], namely:
(a)Mr Chute committed an act;
(b)the act was voluntary;
(c)the act was indecent according to standards of morality and decency held by ordinary members of the community;
(d)the act was committed on another person; and
(e)the other person is over the age of 10 years but under the age of 16 years.
This statement of the elements must be read subject to the reasons given in that case at [8]-[10].
The Crown case
Two Crown witnesses were called and gave oral evidence. They were SQ and his father. They were not cross-examined. The statement of the complainant’s mother was, without objection, read on to the record and I have treated it as evidence. The evidence of SQ’s father and mother corroborated the evidence of SQ to some extent in relation to only one of the incidents.
SQ’s birth certificate was tendered and demonstrated that he was between the age of 10 and 16 years in 1988, 1989 and 1990. School records were tendered showing that he was at the school at the relevant time. A record from the Marist Brothers was tendered showing the history of positions occupied by Mr Chute in various schools and other Catholic organisations between 1952 and 2008.
No evidence was presented on behalf of Mr Chute.
Directions
For the reasons stated in Chute (No 10) at [13]-[14], I have given myself the directions set out in that case at [15]-[17] and [18]-[19]. I have given myself a tendency direction permitting the cross admissibility of the evidence in relation to any offence in relation to each other charge to establish that Mr Chute had a tendency to have a sexual interest in SQ and to use his position at Marist College to obtain access to, and engage in sexual activity with, him. However, for the reasons given below I have not had to rely upon the evidence for tendency purposes. The parties did not request or point to any directions that I was required to give myself.
Evidence
The documentary evidence established that SQ was a student at Marist College in Years 7, 8 and 9 from 1988 to 1990. In those years he was between the ages of 10 and 16 years. Mr Chute was a teacher at the Marist College.
SQ was never taught directly by Mr Chute. He knew him as one of the brothers at the school. He saw him around the school. Mr Chute would often greet younger students with a hug. This was seen as normal behaviour. SQ’s recollection was that the abuse by Mr Chute commenced halfway through Year 7 and went to halfway through Year 9. At the end of Year 9 SQ and his family moved to Queensland for his father’s work.
Mr Chute was the principal of the school and had two offices. He also had a dog that would wander the school and would, on occasion, need to be taken back to Mr Chute’s office.
Mr Chute’s office was a small room near to the location of the complainant’s French class. On one occasion SQ took the dog back to the office and Mr Chute gave him a hug and held him against his body. Before he turned away Mr Chute told him that his shirt was untidy and tucked it in by putting his hand down the back of his underpants. SQ did not think anything of this at the time.
Sometime after this, when SQ was coming back from a guitar lesson he found the dog wandering the corridor again. He took the dog back to Mr Chute’s office. Mr Chute was seated behind his desk. He thanked SQ with a hug and said that he had been a good boy and he would always have a special hug for him. SQ liked being told that he was special and said in his evidence “no one had ever told me that before and it was nice”. As he was leaving Mr Chute again told him to fix his shirt and this time put his hand down the front of his trousers and into his underpants. His hand moved around SQ’s genitals for a few seconds before he pulled his hands out. This is the act alleged to give rise to Count 1 on the indictment. SQ felt weird about it but didn’t say anything because Mr Chute was one of the brothers and at the school “you did what you were told”.
The next incident described by SQ was when he was waiting to go into his French class. Mr Chute opened the door to his office and told him to follow him in. Once in the office Mr Chute removed his trousers from underneath his robe, saying it was too hot. He also undid the black coloured rope that he had tied around his waist. This allowed his robe to be loose.
Mr Chute sat down on the chair beside the desk and told SQ to sit on his lap. SQ did so because he thought that he would get into trouble if he questioned him. Mr Chute started talking about something and moved him onto his right knee and put his left hand into his robe pocket and started to rub himself in the groin area. Mr Chute slowly masturbated himself while talking to SQ. At the time SQ didn’t understand what was going on. It is only as an adult that he knows what Mr Chute was doing. His evidence was that that Mr Chute stopped rubbing himself and pulled his hand out from his robe while breathing more quickly than normal. He wiped his hand on a towel. SQ’s conclusion with the benefit of hindsight is that Mr Chute had ejaculated underneath his robe. It is this incident which is alleged to constitute Count 2 on the indictment, an act of indecency in the presence of the complainant.
Mr Chute gave him a big hug and told him that he was his “special student” and to go to class. The complainant felt numb and confused about what had occurred. He got into trouble from his French teacher for being late. He said he had been with Brother Kostka and she did not say anything more about it.
The next incident was only a few days later. SQ was waiting in line for his French class to start. Mr Chute arrived at his office with his dog. He approached SQ and stood in front of him gesturing for a hug. SQ tried to avoid him but Mr Chute pulled him in and held him close to him. SQ could feel that Mr Chute had an erection as it pressed against his chest. Mr Chute led him to the office by keeping his arm around him. He shut the door and sat down on the chair, instructing SQ to sit on his lap. SQ could feel the erection under Mr Chute’s robe pressing into his buttocks. SQ felt numb and uncomfortable. Mr Chute did the same thing as on the previous occasion moving SQ to his right leg and then masturbating himself underneath his robe. The only difference was that Mr Chute placed his right hand down the back of SQ’s trousers and started to rub SQ’s buttocks. The incident stopped in the same manner as previously, Mr Chute stopping suddenly while breathing hard. With hindsight, SQ considers that Mr Chute ejaculated under his robe. These incidents, from the hug outside the French class through to the masturbation and rubbing of SQ’s buttocks, constitute Count 3. On this occasion Mr Chute told SQ to go back to class and not tell anyone or he would get into big trouble for lying. SQ felt confused and weird about the incident. Again, he went to the French class and gave the female teacher the same reason for being late to class. Again, she said nothing.
The next incident occurred during a movie night at the school. These happened on Friday nights in winter. SQ’s recollection was that the movies shown on that night were ‘Nightmare on Elm Street’ and another horror film. He was dropped off by his father at about 7:00pm. Mr Chute was setting up the projector in the rear and asked him to give him a hand in setting up. Mr Chute told him to sit beside him for the movie. SQ felt scared but did what he was told. After the movie was going for a short time Mr Chute started to rub SQ’s groin area through his jeans causing him to have an erection. SQ felt uncomfortable and was worried that someone else would see what was happening. He felt trapped. This continued for a few minutes until another student came and sat on the other side of Mr Chute. This caused him to stop. This gives rise to Count 4 on the indictment, committing an act of indecency upon SQ.
When the lights came on for intermission SQ went to the toilets and waited in the cubicle crying. He stayed there for the next hour or so until the movie finished. When he could hear other students entering the toilets he ran to the front car park pickup area where his father was waiting. His father noticed that he was not himself and asked about the movies. SQ said that he didn’t want to go to the movies again. His father asked if anything had happened and he told him no and said nothing. The evidence of his father corroborated this, his father assuming that some form of bullying incident had occurred rather than anything more sinister.
At some time after this SQ was once again waiting to enter his French class when Mr Chute turned up and told him to go into the office. SQ was immediately nervous and scared. Mr Chute closed the door. Mr Chute sat in his chair and SQ on his lap. SQ could feel Mr Chute’s erect penis underneath his robe. He was sitting on Mr Chute’s right knee. Mr Chute put his left hand through the side slit of his robe and his hand on his penis, playing with himself. This went on for a minute or two. Mr Chute told SQ to stand up. Mr Chute pulled the hemline of his gown up to knee height, grabbed SQ around the nape of his neck and pushed SQ’s head down towards his penis. SQ was in shock as if he was having an out of body experience. He could not believe what was happening to him. Mr Chute continued to stroke his penis using an up-and-down motion close to SQ’s face. This gives rise to Count 5, an act of indecency in the presence of SQ.
About a week later SQ was lining up for class near the office. Mr Chute walked up to him and put his arm around his shoulder giving him a side on hug. Mr Chute ushered him into his office, shut the door, sat on the chair and positioned SQ on his right knee. SQ could feel Mr Chute’s penis against his bottom. Mr Chute put his left hand through the slit in the side of his robe and his left hand was rubbing his penis. This gives rise to Count 6, an act of indecency in the presence of SQ.
Mr Chute then removed his left hand from under his robe and moved it to the front belt area of SQ’s trousers. He slid his hand down the front of his trousers and underneath the underpants. There was then a knock on the door and Mr Chute stopped and told him to go back to class. As SQ exited another Brother who he did not really know was at the door. SQ went to his French class. This is Count 7.
After this SQ made a conscious effort to avoid Mr Chute as much as possible. He avoided the rear of the line when waiting for his French class. He tried to stay out of sight of Mr Chute and avoided being alone with him.
SQ also described being removed without reason from the school’s representative swimming team and being physically punished for playing hockey for a club outside the school even though the school did not have a team for his age group. He now considers that this occurred because he was avoiding Mr Chute.
At the age of 23 or 24 SQ was reminded of what had happened to him when his father sent him an article about the prosecution of Brother Kostka for child sex offences. It was only in 2018 when receiving psychological treatment to deal with various emotional problems that he had developed that he disclosed the abuse to his psychologist, to the police and to his parents.
Satisfaction of the elements of the offence
I am satisfied of the accuracy and the reliability of the evidence given by SQ and, to the extent to which it is corroborative of that evidence, the evidence of his father and mother. That evidence was unchallenged. No submission was made that I should have any reasonable doubt about the satisfaction of any element of any of the offences.
The unchallenged evidence given by SQ provides a very disturbing picture of the systematic molestation by Mr Chute when he was in a position of significant authority at the school.
In relation to each of the incidents giving rise to counts 1-7 recorded above, I am satisfied beyond reasonable doubt that each element is satisfied. There is no doubt as to the identity of Mr Chute. There is no doubt that the acts that he performed were voluntary. Although it is not required to be established as an element of the offence, I am satisfied in relation to each of the counts that the conduct was not merely voluntary but was intentional on the part of Mr Chute. There can be absolutely no doubt that the conduct was indecent according to the standards of morality and decency held by ordinary members of the community. There is no doubt that the acts were committed on the complainant when he was between 10 and 16 years of age.
It was unnecessary to rely upon tendency reasoning in order to reach the conclusion that the elements of the offence in relation to each of the counts on the indictment was made out.
Conclusion
For these reasons, pursuant to ss 317(4) and 318(1) I am satisfied beyond reasonable doubt that Mr Chute engaged in the conduct required for each of the offences charged.
[The parties were heard in relation to appropriate orders.]
Order
The course of conduct engaged in by Mr Chute involved the sinister exploitation of a young boy over a substantial period. As the facts I have found indicate, the course of conduct engaged in by Mr Chute was facilitated by the authority of, and culture of deference towards, the Brothers who ran the school. This had the effect of deterring any complaint and reducing the likelihood of any complaint being made, and that clearly emboldened Mr Chute. Mr Chute’s conduct involved a gross abuse of the vulnerability of this young child using techniques not uncommon for this kind of offending and warrants the sternest possible condemnation. It has clearly had long lasting and tragic effects upon SQ. He described that “deep down inside I am a broken and scared little boy with a lifetime of secrets and pain”. Not only did the conduct involved morally reprehensible behaviour by Mr Chute directed towards SQ, but it involved an inexcusable breach of the trust placed in him and the school by the boy’s parents.
When in April 2019 I dealt with another series of charges against Mr Chute in an earlier special hearing (R v Chute (No 11) [2019] ACTSC 91 at [20]-[22]), the position was as follows:
Neither party contended that it would be appropriate for Mr Chute to be detained in custody pursuant to s 318(2)(a). Having regard to the age, health and personal circumstances of Mr Chute and the absence of any risk to the community, such an order would clearly not be appropriate in the present case.
So far as an order under s 318(2)(b) is concerned, in my view, there would be no utility in requiring that Mr Chute submit to the jurisdiction of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015 (ACT). Mr Chute is 87 years old and lives in New South Wales in a nursing home. He suffers from dementia. His dementia is progressive and irreversible. He suffers from a constellation of health problems described in my reasons in R v Chute (No 4) [2018] ACTSC 259 at [72] and R v Chute (No 7) [2019] ACTSC 67 at [12]-[25]. He rarely leaves the nursing home. The possibility of further offending conduct is negligible. The capacity to improve his circumstances by measures to address his mental health will not be added to by the making of any orders by the ACAT.
Having regard to the permitted content of mental health orders and forensic mental health orders (see Mental Health Act, ss 59, 67, 102, 109), no such order made under the Mental Health Actwould serve to increase the protection to the community, improve the health or safety of Mr Chute or provide any other benefit to Mr Chute. Making an order under s 318(2)(b) would simply divert the use of resources of the ACAT for no useful purpose. I will therefore make an order that makes it clear that no further action is required in relation to his non-acquittal.
The position of Mr Chute has not improved since then.
The parties both submit that disposition in the manner that I did in that case is appropriate in the present case. Therefore, for the same reasons that I gave on the earlier occasion it is appropriate in this case to act under s 318(2) by making no further order.
The order of the Court is:
1. No further action be taken in relation to the non-acquittal at the special hearing on counts 1, 2, 3, 4, 5, 6, and 7 in the indictment dated 18 September 2019.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 5 March 2020 |
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