R v Chute (No 5) - [2019] ACTSC 52

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chute (No 5)
Citation:	[2019] ACTSC 52
Hearing Date:	28 February 2019
DecisionDate:	1 March 2019
Before:	Mossop J
Decision:	See [31]
Catchwords:	CRIMINAL LAW – EVIDENCE – Leave to issue subpoenas – subpoenas may disclose protected confidences – leave for the disclosure of a protected confidence – Division 4.4.3 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – legitimate forensic purpose – whether court satisfied an arguable case – whether documents would materially assist applicant’s case in the proceedings – evidence that complainant may have cognitive difficulties – evidence that complainant may not have recalled events throughout the period they are alleged to have occurred
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 6602(2) Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79F, 79F(2), 79F(2)(b), 79G, 79G(2), 79G(2)(a), 79H, Div 4.4.3
Cases Cited:	KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172 R v WR (No 2) [2009] ACTSC 110
Parties:	The Queen (Crown) John 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

Mr Chute is the subject of a special hearing which is listed to commence on 18 March 2019. He faces 16 counts relating to six complainants.

By application dated 27 February 2019, he has sought leave to issue six subpoenas to persons whose records may disclose protected confidences within the meaning of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act1991 (ACT).

In dealing with this application I have adopted the same approach as approved by Refshauge J in R v WR (No 2) [2009] ACTSC 110 at [33], namely, to first consider whether there is a legitimate forensic purpose under s 79F and then, if so satisfied, permit a subpoena to be issued in order to obtain the documents so as to be able to conduct a preliminary examination of them under s 79G before deciding under s 79H whether to give leave for the disclosure of the protected confidence.

Section 79F obliges the court to refuse leave if the court is not satisfied that the applicant has established a “legitimate forensic purpose” for seeking the leave. In order to establish such a purpose, s 79F(2) requires the applicant to:

(a) identify a legitimate forensic purpose for seeking the leave; and

(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.

The concept of legitimate forensic purpose is well-established. So far as (b) is concerned the legislative formulation requires that there be established at this stage an “arguable case” that the evidence in relation to which leave is sought “would materially assist” the applicant’s case in the proceedings.

In KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172, Basten JA said (at [31]-[32]) when dealing with…

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 5)

Details

AGLC: R v Chute (No 5) [2019] ACTSC 52
Case: [2019] ACTSC 52
Decision Date: 1 March 2019

CaseChat Overview and Summary

The appellant, R, was charged with offences against a complainant, who the respondent, Chute, represented. The dispute involved the disclosure of protected confidences by the respondent, with the appellant seeking leave to issue subpoenas under the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The legal issue before the court was whether the subpoenas should be granted to disclose protected confidences. This required determining if the court was satisfied there was an arguable case that the documents would materially assist the appellant’s case in the proceedings, and if the disclosure was for a legitimate forensic purpose.

The court considered the statutory requirements under Division 4.4.3 of the Act, which mandates that there must be an arguable case that the documents would materially assist in the proceedings and that disclosure was for a legitimate forensic purpose. The court noted that the evidence suggested the complainant may have cognitive difficulties and may not have recalled events throughout the period they are alleged to have occurred. This evidence was considered in the context of the seriousness of the charges and the potential impact on the complainant. The court was not satisfied that the appellant had made out an arguable case that the documents would materially assist in the proceedings, and therefore denied leave for the disclosure of the protected confidences.

The final orders of the court were as per the reasons provided, with the court declining to grant leave for the issuance of subpoenas to disclose the protected confidences. The court’s decision was based on the lack of an arguable case that the documents would materially assist in the proceedings, and the absence of a legitimate forensic purpose for the disclosure.

Orders

Orders of the court

See [31]

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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