R v Chute (No 7)
[2019] ACTSC 67
•18 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chute (No 7) |
Citation: | [2019] ACTSC 67 |
Hearing Date: | 15 March 2019 |
DecisionDate: | 18 March 2019 |
Before: | Mossop J |
Decision: | The application in proceedings dated 27 February 2019 is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – applicant accused of sexual offences against children – found unfit to plead – application for permanent stay based on poor health – application for permanent stay based on recent disclosure of complainant as to incorrect identification of other persons – application for permanent stay based on alleged failure by police to properly investigate allegations – whether grounds for stay involves a “significant change in circumstances” since previous application for stay for purposes of r 4750 of the Court Procedures Rules 2006 (ACT) – permanent stay refused |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 4750 Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Cases Cited: | R v Chute (No 4) [2018] ACTSC 259 R v Chute (No 5) [2019] ACTSC 52 R v Zonneveld [2018] ACTSC 97 |
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 was found unfit to plead. I have previously dismissed an application for a permanent stay of the proceedings: see R v Chute (No 4) [2018] ACTSC 259. The special hearing is listed to commence today on 18 March 2019. By application in proceeding dated 27 February 2019, Mr Chute made another application for a permanent stay of the proceedings.
The evidence in support of the application was the affidavit of 27 February 2019 filed with the application, as well as the following affidavits: two affidavits of Mr Walsh dated 4 March 2019; an affidavit of Mr Walsh dated 7 March 2019; an affidavit of Mr Walsh dated 9 March 2019; and an affidavit of Mr Walsh dated 11 March 2019. In addition, the accused relies upon certain parts of the evidence relied upon for the purposes of the previous application being that evidence referred to at paragraphs [18], [19], [20]-[26], [27]-[32], [33], [34]-[39], [40] and [41]-[47] of the reasons given in Chute (No 4). That evidence is a combination of affidavit evidence and the oral evidence of Dr John Roberts.
The present application was heard on Friday, 15 March 2019.
In these reasons, where it is necessary to refer to a particular complainant, I will refer to him as Complainant 1 to 6 in the same manner that I did in Chute (No 4): see R v Chute (No 4) at [9].
The principles to be applied in dealing with an application for a stay of proceedings are set out in Chute (No 4) at [49]-[50] and R v Zonneveld [2018] ACTSC 97 at [25]-[27]. The application of those principles in the context of a special hearing is discussed in Chute (No 4) at [51]-[70].
Grounds for second stay application
Counsel for the accused put forward a number of matters which he said would justify the grant of a permanent stay:
(a)the physical and mental condition of the accused;
(b)the recent disclosure by the Crown of additional evidence given by one of the alleged victims (Complainant 1) that he had made a mistake in relation to the identification of other Marist Brothers at the Marist College who he had said had molested him;
(c)the alleged failure by police to properly investigate the allegations made by the complainants; and
(d)an alleged failure by the Crown to disclose an unredacted version of a transcript of an interview between Complainant 1 and police.
This last point was abandoned by counsel for the accused during the course of the hearing when it emerged that in fact there had been no such non-disclosure.
The position of the Crown is that the threshold requirement of a significant change of circumstances required by r 4750 of the Court Procedures Rules 2006 (ACT) (the Rules) had not been met or, if it had, those changes in circumstances do not warrant a permanent stay of the proceedings.
Rule 4750
Rule 4750 of the Rules provides:
(1)An accused person may apply to set aside or stay any criminal proceeding against the person.
NotePt 6.2 (Applications in proceedings) applies to the application.
(2)The application must be made and heard before the accused person is arraigned.
(3)If the application is dismissed, the accused person may make a further application under subrule (1) in relation to the same or similar charges only if-
(a)there has been a significant change in circumstances; and
(b)the application is limited to the change of circumstances.
The significant subr for present purposes is subr (3). The manifest purpose of this provision is to prevent repeat applications for the stay or setting aside of any criminal proceedings unless there is some good reason why a further application is justified. Where a repeat application is allowed to be made, it is limited to the matters arising from the significant change in circumstances. By imposing the threshold requirement and limitation in subr (3), the Rules prevent repeat applications based upon grounds that were, or were available to be, pursued upon an earlier application. Such a rule is essential for the orderly disposition of the business of the court and prevents the delay or frustration of criminal trials (or special hearings) by the making of multiple applications for a stay upon grounds previously relied upon or able to be relied upon.
The rule has application in the present case. The present application involves, to a significant extent, the re-agitation of issues that were the subject of the previous stay application. The clear exception to that is the recent disclosure of the additional material relating to Complainant 1 (ground (b) at [6] above). So far as the medical condition of the accused is concerned (ground (a) at [6] above), subr (3) requires a significant change in circumstances to be established and then limits the basis for the new application to that change in circumstances. So far as an alleged failure by police to properly investigate the charges (ground (c) at [6] above), that ground is precluded unless it can be established that it amounts to a significant change in circumstances rather than being circumstances which were available to the accused but not relied upon for the purposes of the previous stay application.
Deterioration of medical condition
The evidence in relation to this comes from a number of sources.
The affidavit of Mr Walsh dated 4 March 2019 is to the effect that he observed a deterioration of the physical and mental condition of the accused over 2018 in early 2019. His opinion, which was admitted without objection, was that during 2018 the accused had deteriorated both physically and mentally. He observed that the accused engaged in less eye contact and was unable to maintain a meaningful conversation. He also appeared to Mr Walsh to be more frail. Mr Walsh set out the terms of a conversation that he had with the accused. It is not possible to place much weight on the terms of this conversation other than for its subsequent use as briefing material for expert medical evidence. Similarly, Mr Walsh sets out a number of entries from the notes of the nursing home where the accused lives but those notes are not significantly informative in relation to whether or not there has been a significant change in circumstances.
Counsel for the accused relied upon the report of Dr Olav Nielssen dated 20 February 2019. Dr Nielssen had previously interviewed the accused in July 2015. Dr Nielssen had the benefit of his previous report, an interview with the accused and a review of the documentation. He recorded that the accused looks “visibly older and more frail than at the time of the previous assessment”. He made a diagnosis of dementia which was probably vascular in origin. His opinion was that Mr Chute’s mental and physical health “has deteriorated significantly in the 3½ years since the previous assessment”. He says that he has survived for a period longer than the average after a diagnosis of dementia and that his prognosis was for further decline and transfer to a high dependency unit within the next year. His conclusion was: “In my opinion, he is unable to provide reliable or meaningful instructions to a legal representative, and is mentally and physically unfit to participate in any legal proceedings.” The basis for his conclusion that he was physically as opposed to mentally unfit to participate in legal proceedings is not explained in the report and the assumptions upon which that conclusion was based were not articulated.
Limited weight can be placed upon the report of Dr Nielssen for the purposes of determining whether the threshold question of r 4750 has been met. That is because Dr Nielssen was making a comparison between his observations of him in 2019 when compared to his observations in mid 2015, rather than at the time when the previous application was made.
Also relied upon was a report of Dr Roberts dated 28 February 2019. Dr Roberts had examined the accused on 20 February 2019. He recorded being told by the accused that he no longer goes for walks outside and that in the near future he will require assistance with washing and dressing since he finds that difficult. He recorded that since his last report approximately one and a quarter years ago, the accused had ceased using taxis and public transport. He recorded that the mini mental state examination (MMSE) produced a score of 20/30 suggesting moderate dementia, but also that because he had done this test on a number of occasions, there may be a practice effect leading to the result being on the high side. He recorded that the accused would be unable to comprehend the legal proceedings and that he would be:
a virtually passive participant in the trial, whose capacity to comprehend what was occurring would be minimal… It would be my impression on reasonable psychiatric grounds that the combination of dementia and physical debility would render brother Chute a most peripheral participant in the proceedings, in relation to persons whom he does not recollect and who asserts he has no memory of the matters relating to them.
Due to his infirmities his involvement in the procedure would be perfunctory.
Mr Walsh requested a further report from Dr Roberts based upon Mr Walsh’s attendance upon the accused on 26 February 2019. Dr Roberts did provide a further report on 5 March 2019. That report was based upon the evidence of Mr Walsh concerning a meeting between Mr Walsh and the accused in the afternoon on 26 February 2019. Dr Roberts commented that the difference in performance observed between Mr Walsh’s visit and Dr Robert’s visit was consistent with “sundowning”, namely, “a progressive decline in function occurring during the course of the day in a person suffering from dementia”.
Mr Walsh requested a further report from Dr Roberts concerning whether the accused’s physical health would be endangered if he were transported to the Australian Capital Territory (ACT) for the purposes of a special hearing which was expected to last some days, and an alternative scenario in which he was transported to the Territory for the purposes only of an arraignment which would last a total of approximately 30 minutes. In both cases Dr Roberts considered that because of his fluctuating hypertension and the agitation, anxiety and discomfort arising from travelling to an unfamiliar place, there would be a potential for cardiac arrhythmia to develop or a cerebrovascular accident to occur. The chance of that occurring was not quantified.
Counsel for the Crown submits that the observations made by Dr Neilssen do not support the submission that there has been a decline and that there has been a significant deterioration. His submission compared the report of Dr Neilssen with previous reports by Dr Nielssen, Dr Roberts and Mr Cipriani (a psychologist). For example, he points to the fact that the MMSE results recorded by Dr Roberts (20/30) are the same as recorded in his result in October 2017.
Similarly, he submits in relation to the report of Dr Roberts that it is consistent with his earlier reports and does not suggest that there has been a significant change in the condition of the accused.
Rule 4750 is somewhat unclear about whether the relevant comparison is between the situation at the date of the dismissal of the previous application or the date of the making of the application. The parties did not address this issue in their submissions, although the approach taken to the application was probably more consistent with an assumption that the relevant comparison started at the date of the original application rather than the date of its determination.
The position is that the original application for a stay was made on 12 October 2017. For reasons described in Chute (No 4) at [2]-[8], it was only finally determined on 11 September 2018 on the basis that as at August 2018 neither party wished to be further heard on the application.
The evidence does not establish a significant change of circumstances between September 2018 and 15 March 2019. None of the evidence was directed to that period. Consistently with Mr Walsh’s observations, I infer that there would be some modest deterioration in the physical and mental capacities of the accused but not a change which might be described as significant.
If the relevant period is that since October 2017 then I am satisfied on the basis of Mr Walsh’s opinion evidence, which was not objected to, that, consistently with what might be expected from a man of his age, his physical and mental condition has deteriorated to some extent over the course of 2018. It is also likely that he has suffered some loss of mental capacity even though his MMSE results remain the same. The risks associated with a requirement for the accused to attend the special hearing remain the same as they were at the time of the previous application: see Chute (No 4) at [38], [72].
For the purposes of criminal proceedings, the overall age and fragility of a person is a matter of significance in determining whether or not proceedings against them amount to an abuse of process. However, the significance of the modest deterioration in his condition must be assessed against the background of the level of physical and mental impairment that he suffered at the time of his previous application. He still suffers from a constellation of physical conditions as well as mild to moderate dementia as was the case at the time of the earlier application: see Chute (No 4) at [72]. The progressive but moderate deterioration in his condition during 2018 is clearly a change but it is not, in my view, a significant change of circumstances.
Recent disclosure
The Crown served upon the accused notes summarising an evidence in chief interview conducted between police and Complainant 1. The interview was conducted on 11 March 2019. The email was sent on 14 March 2019, the day before the hearing of the stay application. A transcript of the interview had not, at the time of the hearing of the application, been made available to the solicitor for the accused. The video of the interview has not been viewed by the solicitor for the accused.
This interview does not relate to the allegations made against the accused. Instead, it relates to allegations made by Complainant 1 against other Brothers at the Marist College. Of significance for present purposes is the fact that Complainant 1 is recorded as saying that he made a mistake about the Brothers against whom he made those allegations and that he now recalls that the Brothers who sexually abused him were different. While the change in his evidence is not directed to the allegations made against the accused or the identification of the accused as that person who committed the charged acts against him, the significant change in his evidence relating to the other brothers is likely to be a matter of significance so far as cross-examination on credit is concerned. Counsel for the accused submitted that, in addition, it may be a matter in relation to which expert evidence about recovered memory may be sought to be obtained.
I am satisfied that the service of notice of this evidence amounts to a significant change in circumstances for the purpose of r 4750.
Investigation by police
Counsel for the accused makes a number of complaints about the extent of police investigation of the allegations against the accused. These submissions are targeted at making relevant in the circumstances of the present case the remarks of Adams J in R v Littler [2001] NSWCCA 173; 120 A Crim R 512 at [24]-[25] and [37], which emphasise the obligation upon investigating police to search out material witnesses and to obtain evidence from them whether or not the evidence so obtained assists the prosecution or the defence. The failure to do so may be a factor favouring a permanent stay of proceedings.
The affidavit of Mr Walsh of 9 March 2019 identifies a series of matters in relation to which he asserts there has either been inadequate investigation or inadequate disclosure by the Crown. In relation to Complainant 1 that includes whether or not the Brothers referred to in an unsworn affidavit prepared by Complainant 1 as having been present during an incident involving the accused had been spoken to by police in relation to the events or whether witness statements have been obtained from them. Similarly, there is a reference to another named student (CN), but no evidence disclosed about whether or not that person had been interviewed. There is a reference to another Brother but no disclosure of any inquiry made of that Brother. There is reference in the interview with Complainant 1 to other students and to another teacher.
Similarly, there are other specific issues relating to the extent of disclosure in relation to Complainants 2, 3 and 4, summarised as follows:
(a)Complainant 2: redaction of paragraphs of an unsworn affidavit that was disclosed;
(b)Complainant 3: the identity of a school counsellor at the time referred to in a witness statement and the absence of any records of a complaint made when he was 12 years old to police at the Woden police station;
(c)Complainant 4: no disclosure of his criminal antecedents and the various aspects of the medical records relating to his cognitive functioning the subject of R v Chute (No 5) [2019] ACTSC 52 – an application for the issue of the issue of subpoenas which may disclose protected confidences within the meaning of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
In relation to Complainant 3 as well as Complainant 5 and Complainant 6, counsel for the accused points to prejudice arising from the inability to get instructions from the accused.
The position of the Crown in relation to this issue was that if there had been some failure to investigate or failure of disclosure, then this was something which was equally present at the time of the earlier application and hence there was no change in circumstances for the purposes of r 4750. The Crown relied upon the evidence in the affidavit of Vienna Conliffe of 14 March 2019 which provides the responses made by the Crown to inquiries about the extent of investigation and the disclosure of material made on behalf of the accused.
Although the whole of the brief of evidence is included as an exhibit to Mr Walsh’s affidavit of 9 March 2019, the date on which it was served on him was not disclosed. I infer, consistently with the other evidence that is before me, that it was served well prior to the making of the first application for a permanent stay of proceedings.
Each of the matters now raised by counsel for the accused is a matter arising from the extent of the material disclosed by the Crown to the accused as part of the brief of evidence. Any deficiencies in investigation or disclosure of those investigations are deficiencies which existed at the time of the hearing of, and well prior to the determination of, the first application for a stay. No change in circumstances or significant change in circumstances has occurred since that first application. As a consequence r 4750 applies and no further application for a stay may be made in relation to these matters.
No application was made to dispense with the operation of r 4750 and I do not consider that such a course would be appropriate. The circumstances of this case appear to be just the kind of circumstances to which r 4750 is properly directed.
Conclusion
For the reasons given above, the only relevant change in circumstances for the purposes of the present application is the newly disclosed material relating to complaints against other Brothers at the Marist College made by Complainant 1. This disclosure is not of direct relevance to the allegations in the present case. While there is some reference to the accused in the summary of the evidence, the evidence is not directed to any of the allegations against the accused in the present case. It is, however, potentially relevant to the reliability of the Complainant’s evidence in relation to the accused because it discloses what might turn out to be a significant inaccuracy in the information originally given to police in relation to brothers other than the accused against whom the Complainant made allegations. That inaccuracy and the reasons for the change in the evidence of Complainant 1 may be matters that have significant importance for the assessment of the reliability of his evidence generally. Clearly the representatives of the accused are entitled to time to consider the transcript of this further interview with Complainant 1. Counsel for the accused submitted that would be appropriate to permit expert opinion to be obtained as to whether or not the evidence of Complainant 1 in relation to these other Brothers involved recovered memories. It is unnecessary to decide at the moment whether or not the adjournment of the proceedings insofar as they involve Complainant 1 may be necessary. It is not obvious that such a course would be necessary having regard to the nature of the disclosures by Complainant 1, the capacity to challenge the reliability of his evidence on that basis and the fact that there is only limited connection with the allegations against the accused. In any event, the disclosure of this material is not, either by itself or in combination with the circumstances outlined in Chute (No 4), a circumstance which warrants a grant of a permanent stay of the proceedings. It is not a matter which renders the continuation of the proceedings against the accused so unfair as to amount to an abuse of process. It does not add to the matters referred to in Chute (No 4) so as to tip the scales in favour of there being an abuse of process. Rather, the disclosure of the additional material is a matter favouring the accused as it provides a significant opportunity to challenge the reliability of Complainant 1’s evidence. The capacity to deal with the prejudice, if any, arising to the accused from the recent disclosure of this material is increased by the fact that the trial is to be by judge alone and hence does not involve the time pressures and lack of flexibility of a jury trial or the risk that a jury may be prejudicially affected by measures taken to avoid prejudice to the accused.
That conclusion is sufficient to dispose of the present application. However, recognising that there is room for contention as to the meaning of the word “significant” I will also indicate that had I considered that the modest decline in the physical and mental health of the accused amounted to a significant change in circumstances then I would not have held that the proceedings now amounted to an abuse of process. Rather, having regard to the accused’s unfitness to plead by reason of his dementia, his capacity to usefully contribute to the proceedings was always negligible. So far as his physical condition would be affected by a requirement to attend the proceedings, the situation represents only a very modest change from the circumstances disclosed in the previous application and would not affect the conclusion ultimately reached. The position remains as previously described in Chute (No 4) with there being options to address his physical and mental incapacity to the extent that the law requires his involvement in or presence at the proceedings.
Counsel for the accused drew my attention to the analogous decision of Flannery DCJ in R v Crawford (Unreported, New South Wales District Court, Flannery DCJ, 1 November 2018) in which her Honour permanently stayed proceedings involving an accused person of 86 years old who was in a vegetative state, barely rouseable, had no capacity to communicate or to communicate in a rational sense and who if brought to court would require a full body lifting machine and three staff to be present. The case is distinguishable from the present by reason of the more advanced state of ill-health of the accused person, the fact that the statutory significance of arraignment differs as between the ACT and New South Wales, and the fact that the special hearing was required to be conducted before a jury rather than before a judge alone.
For these reasons the order of the Court is:
1. The application in proceedings dated 27 February 2019 is dismissed.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 28 March 2019 |
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