R v Chute (No 2) - [2020] ACTSC 41

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 10) [2019] ACTSC 73 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contravened is s 92K(2) of the Crimes Act 1900 (ACT), a provision which was in force at the relevant time but is now no longer in force.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)

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 2)

Details

AGLC: R v Chute (No 2) [2020] ACTSC 41
Case: [2020] ACTSC 41
Decision Date: 21 February 2020

CaseChat Overview and Summary

In the case of R v Chute (No 2), the respondent, a former member of the Australian Defence Force, was charged with child sexual offences committed in the 1970s. Due to the respondent's unfitness to plead, a special hearing was conducted by a judge alone, as per the relevant statutory provisions. The respondent was acquitted of some charges, but not all, and the court had to decide whether the respondent's conduct amounted to acts of indecency upon and in the presence of the complainant, and whether the evidence presented by the Crown was sufficient to warrant a non-acquittal verdict.

The legal issues before the court were whether the respondent's actions constituted the charged offences and if the evidence presented by the Crown was sufficient to support a non-acquittal verdict. The court had to consider the nature of the respondent's actions and the credibility of the complainant's evidence and other Crown witnesses. The court also had to determine whether the respondent's unfitness to plead warranted a special hearing by a judge alone.

The court found that the respondent's actions did amount to acts of indecency upon and in the presence of the complainant. The complainant's evidence, along with other Crown witnesses, was deemed credible and sufficient to support a non-acquittal verdict. The court held that the respondent's unfitness to plead did warrant a special hearing by a judge alone, and the statutory provisions were followed. Consequently, a non-acquittal verdict was returned, and no further action was taken. The court's decision was based on a thorough examination of the evidence and the applicable legal principles.

Orders

Orders of the court

Non-acquittal and no further action taken: see [37]

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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