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

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chute (No 2)
Citation:	[2017] ACTSC 347
Hearing Dates:	15 and 16 November 2017
DecisionDate:	17 November 2017
Before:	Mossop J
Decision:	See [19]
Catchwords:	CRIMINAL LAW – PRACTICE AND PROCEDURE – Accused previously found unfit to plead to historical child sex charges – proceedings listed for special hearing without consideration whether accused capable of making election for trial by judge alone – whether it is open to accused to make election for special hearing to be trial by judge alone – relationship between s 68B of the Supreme Court Act 1933 (ACT) and s 316(2) of the Crimes Act 1900 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT), ss 61, 92K, 316, 316(1), 316(2), 316(2)(a), 316(2)(a)(i), 316(2)(b), 316(2)(b)(i), 316(2)(b)(ii), 316(3), 316(9), 428J Crimes (Amendment) Act 1999 (ACT) Criminal Proceedings Legislation Amendment Act 2011 (ACT) Supreme Court Act 1933 (ACT), ss 68A, 68B, 68B(1)(b), sch 2
Cases Cited:	R v Chute [2017] ACTSC 246 Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116
Texts Cited:	Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 17 February 2011 Explanatory Memorandum, Crimes Amendment Bill 1999 (ACT)
Parties:	The Queen (Crown) John William Chute (Accused)
Representation:	Counsel J Hiscox (Crown) G Walsh (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused)
File Number:	SCC 178 of 2016

MOSSOP J:

Introduction

On 24 July 2017 Murrell CJ found that the accused 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).

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 are 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.

The special hearing has been listed to commence on 4 December 2017.

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 permits a person who has been found unfit to plead to elect, either directly or via a guardian, to have…

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) [2017] ACTSC 347
Case: [2017] ACTSC 347
Decision Date: 17 November 2017

CaseChat Overview and Summary

The case of R v Chute (No 2) involved the respondent, Chute, who had previously been found unfit to plead to historical child sex charges. The matter was before the court to determine whether the accused could make an election for a special hearing to be trialled by a judge alone. The dispute centred on the interaction between section 68B of the Supreme Court Act 1933 (ACT) and section 316(2) of the Crimes Act 1900 (ACT). Specifically, the court was required to decide whether it was open to Chute to make such an election for the special hearing, considering the circumstances of his unfitness to plead.

The court considered whether the statutory provisions allowed for an election for a trial by judge alone in a special hearing. It examined the statutory context and the legislative intent behind both sections. The court concluded that the provisions of section 316(2) of the Crimes Act 1900 (ACT) were not intended to apply to special hearings under section 68B of the Supreme Court Act 1933 (ACT). Therefore, the accused was not entitled to elect for a trial by judge alone in the special hearing.

The court held that the accused was not entitled to elect for the special hearing to be trialled by a judge alone. It found that the legislative intent behind the provisions of section 316(2) of the Crimes Act 1900 (ACT) did not extend to the special hearing provisions under section 68B of the Supreme Court Act 1933 (ACT). The court’s reasoning was based on the interpretation of the statutory language and the contextual application of the provisions.

The court ordered that the proceedings would continue as a special hearing before a judge alone, in accordance with section 68B of the Supreme Court Act 1933 (ACT). The final orders were to be made by the court, as outlined in [19] of the judgment.

Orders

Orders of the court

See [19]

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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