R v Chute (No 6)

[2019] ACTSC 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Chute (No 6)

Citation:

[2019] ACTSC 53

Hearing Date:

Determined on written submissions

DecisionDate:

8 March 2019

Before:

Mossop J

Decision:

See [38]

Catchwords:

CRIMINAL LAW – EVIDENCE – TENDENCY EVIDENCE– JURISDICTION, PRACTICE AND PROCEDURE – alleged sexual offences against multiple children – tendency evidence admissible in relation charges relating to each single complainant – tendency evidence admissible as between complainants

Legislation Cited:

Crimes Act 1900 (ACT), s 316

Evidence Act 2011 (ACT), ss 55, 97, 97(1)(b), 101, 101(2)

Cases Cited:

HML v The Queen [2008] HCA 16; 235 CLR 334

Hughes v The Queen [2017] HCA 20; 344 ALR 187
McPhillamy v The Queen [2018] HCA 52; 361 ALR 31

R v Bauer (a pseudonym) [2018] HCA 40; 359 ALR 359

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

1. Mr Chute is the subject of a special hearing under s 316 of the Crimes Act 1900 (ACT) which is listed to commence on 18 March 2019. He faces 16 counts relating to six complainants.

1. The Crown has sought to adduce tendency evidence described as incidents 1 to 16 which are described in an Amended Notice of Intention to Adduce Tendency Evidence dated 28 September 2017.

1. Each of the incidents corresponds to a count on the indictment.  I have anonymised the names of the complainants.  The charges on the indictment may be summarised as follows:

(a)counts one to four relate to the Complainant 1;

(b)counts five to eight relate to the Complainant 2;

(c)counts nine and 10 relate to the Complainant 3;

(d)counts 11 to 13 relate to the Complainant 4;

(e)count 14 relates to the Complainant 5; and

(f)counts 15 and 16 relate to the Complainant 6.

1. Where there are multiple incidents involving a single complainant, the Crown seeks to have that evidence admissible as tendency evidence in relation to each other charge relating to that complainant.  Further, the Crown seeks to have the evidence in relation to each complainant admissible as tendency evidence in relation to each other complainant.

1. The tendency sought to be proved by the Crown is a tendency:

To have a sexual interest in young boys attending the college at which the accused taught and to use his position as a teacher at the college to obtain access to young boys in order to opportunistically engage in sexual activities with them.

1. If such a tendency was established, it would clearly be relevant evidence under the Evidence Act 2011 (ACT), s 55. Given that no relevant admissions have been made it is most likely that the issue at trial will be whether the events happened at all. It is in relation to that issue that the tendency evidence will be relevant.

1. For the purposes of s 97 of the Evidence Act