R v Chute (No 7) - [2019] ACTSC 67

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 Crawford, (Unreported, New South Wales District Court, Flannery DCJ, 1 November 2018) R v Littler [2001] NSWCCA 173; 120 A Crim R 512 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…

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 7)

Details

AGLC: R v Chute (No 7) [2019] ACTSC 67
Case: [2019] ACTSC 67
Decision Date: 18 March 2019

CaseChat Overview and Summary

The defendant, Chute, was charged with various sexual offences against children. The matter was before the court on an application for a permanent stay of proceedings based on a number of grounds, including the defendant's poor health, an alleged failure by the police to properly investigate the allegations, and the complainant's recent disclosure that she had incorrectly identified other persons. The application was made under rule 4750 of the Court Procedures Rules 2006 (ACT), which requires a significant change in circumstances since the previous application for a stay. The court was required to determine whether the grounds for a stay involved a significant change in circumstances since the previous application for a stay.

The court found that the defendant's poor health did not provide grounds for a permanent stay as it had been previously considered in a previous application. The court also found that the complainant's recent disclosure did not provide grounds for a permanent stay as it did not involve a significant change in circumstances since the previous application. The court found that the alleged failure by the police to properly investigate the allegations did not provide grounds for a permanent stay as it did not involve a significant change in circumstances since the previous application. The court found that none of the grounds for a stay involved a significant change in circumstances since the previous application for a stay.

The court dismissed the application for a permanent stay. The court found that there had been no significant change in circumstances since the previous application for a stay. The court found that the defendant's poor health, the complainant's recent disclosure, and the alleged failure by the police to properly investigate the allegations did not provide grounds for a permanent stay. The court found that the defendant remained unfit to plead and that a permanent stay was not in the interests of justice. The court dismissed the application in proceedings dated 27 February 2019.

Orders

Orders of the court

The application in proceedings dated 27 February 2019 is dismissed.

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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