R v Chute (No 3) - [2017] ACTSC 409

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chute (No 3)
Citation:	[2017] ACTSC 409
Hearing Dates:	15 and 16 November 2017
DecisionDate:	22 December 2017
Before:	Mossop J
Decision:	1. The ACT Civil and Administrative Tribunal is directed to appoint a guardian with power to make an election for the special hearing to be a trial by a single judge without a jury.
Catchwords:	CRIMINAL LAW – PRACTICE AND PROCEDURE – Special hearing – fitness to elect trial by judge and jury or trial by judge alone – accused previously found unfit to plead to historical child sex charges – whether to appoint a guardian with power to make such an election – consideration of s 316(2) of the Crimes Act 1900 (ACT)
Legislation Cited:	ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT) Crimes Act 1900 (ACT), s 316(2)
Cases Cited:	R v Chute [2017] ACTSC 246 R v Chute (No 2) [2017] ACTSC 347
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 17 November 2017 I gave reasons for my conclusion that the fact that the procedure in s 316(2) of the Crimes Act 1900 (ACT) had been overlooked did not avoid the obligation to determine whether or not the accused was capable of making an election to have a special hearing conducted as a trial by judge alone: see R v Chute (No 2) [2017] ACTSC 347. Some evidence in relation to that issue was produced by the affidavit of the solicitor for the accused, Mr Walsh, dated 20 November 2017. The accused sought an opportunity to put on additional evidence in relation to that issue. That additional evidence has now been provided. It is a report of Dr John Roberts dated 9 December 2017. Both parties indicated that they consented to having the issue of capacity to make an election decided in chambers without additional written or oral submissions or cross‑examination of Dr Roberts. I will mark the report as an exhibit.

The report of Dr Roberts

Dr Roberts received instructions from the solicitor for the accused by letter dated 22 November 2017. That letter identified the issue as being whether the accused had the capacity to understand whether he should elect for a judge‑alone trial or a trial by judge and jury. It recorded that in response to a question from his solicitor as to whether or not the special hearing should be conducted before a judge and jury or before a judge alone, the accused replied “I wouldn’t have a clue, you’re the lawyer”. Dr Roberts noted the previous opinion of himself and others to the effect that the accused was unfit to plead. He interviewed the accused on 8 December 2017. He recorded that the accused did not recognise him notwithstanding that he had attended upon…

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 3)

Details

AGLC: R v Chute (No 3) [2017] ACTSC 409
Case: [2017] ACTSC 409
Decision Date: 22 December 2017

CaseChat Overview and Summary

The case of R v Chute (No 3) involved the respondent, Chute, who had previously been found unfit to plead to charges of historical child sex offences. The primary dispute centred on whether a guardian should be appointed to make an election on his behalf regarding the mode of trial, specifically whether the trial should be by a judge alone or a judge and jury. This decision was brought before the ACT Supreme Court, which was tasked with determining the appropriate course of action in accordance with section 316(2) of the Crimes Act 1900 (ACT). The court had to consider the implications of Chute's incapacity to make such decisions and whether appointing a guardian to make this election was legally permissible and in the respondent's best interests.

The court was required to decide on the legal framework governing the appointment of a guardian to make an election for a person who is unfit to plead. The primary issue was whether section 316(2) of the Crimes Act 1900 (ACT) allowed for the appointment of a guardian who could elect the mode of trial on behalf of the respondent. The court needed to balance the respondent's right to a fair trial with the need to ensure that the trial process was conducted in a manner that was just and appropriate, given his incapacity to make such decisions himself.

In determining the appropriate course of action, the court examined the statutory provisions and case law relevant to the appointment of guardians in criminal proceedings. The court held that section 316(2) did indeed permit the appointment of a guardian to make an election for the respondent. The court found that it was in the best interests of justice to appoint a guardian who could make the election on Chute's behalf, as this would ensure that the trial proceeded in a manner that was fair and appropriate, taking into account his incapacity. The court emphasised the need to protect the respondent's rights while also ensuring that the trial process was not unduly delayed or compromised. Based on these considerations, the court directed the ACT Civil and Administrative Tribunal to appoint a guardian with the power to make the election for a trial by a single judge without a jury.

The court's decision was to direct the ACT Civil and Administrative Tribunal to appoint a guardian for Chute with the power to make an election for the special hearing to be a trial by a single judge without a jury. This decision ensured that the trial would proceed in a manner that was just and appropriate, given Chute's incapacity to make such decisions himself. The court's direction aimed to balance the respondent's right to a fair trial with the need to protect his interests and ensure that the trial process was conducted in a manner that was consistent with the law.

Orders

Orders of the court

1. The ACT Civil and Administrative Tribunal is directed to appoint a guardian with power to make an election for the special hearing to be a trial by a single judge without a jury.

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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