R v Chute (No 8) - [2019] ACTSC 68

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chute (No 8)
Citation:	[2019] ACTSC 68
Decision Date:	18 March 2019
ReasonsDate:	28 March 2019
Before:	Mossop J
Decision:	See [6]
Catchwords:	CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s prior sexual activities – operation of s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – other alleged abusers – change in evidence may show complainant’s evidence unreliable – leave granted
Legislation Cited:	Evidence (Miscellaneous Provisions) 1991 (ACT), ss 76, 76(1), 77, 78, 78(3), 78(4)
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

By application in proceeding filed 18 March 2019, the accused sought leave under s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to adduce evidence of the sexual activities of one of the complainants in the proceedings. Previously I have identified the complainants as Complainants 1 to 6. I will continue to identify them in that way. The present application relates to Complainant 1. I made an order granting leave. I am required under s 78(4) to give written reasons for that order and these are those reasons.

As it was ultimately articulated, the application was targeted to the exploration of the credibility or reliability of Complainant 1’s evidence arising out of allegations which were directed to other Brothers of the Marist Brothers religious order but who Complainant 1 now stated were wrongly identified as the alleged perpetrators and that other Brothers were in fact responsible. These allegations are not allegations made relating to the accused, although the accused is recorded as being present during some of events relevant to the allegations. The unusual circumstance that gives rise to the application is that, at least insofar as is disclosed on the material presently available, the complainant has completely retracted allegations made against other Brothers, while adding newly identified brothers as perpetrators. Counsel for the accused seeks to be able to explore in cross-examination how that change in evidence came about and, I infer, whether it involved recently recovered memories, reconstruction of events or some other process. Counsel for the accused submitted that in order to do so it was necessary to explore the sexual history of the accused insofar as it involved the other matters which he, either in the past or currently, alleges occurred. Evidence so elicited may cast doubt upon the reliability of the evidence given in relation to the present accused both as to identification as well as generally.

The relevant statutory provisions are as follows:

76 General immunity of evidence of complainant’s sexual activities
(1)Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.
(2)Subsection (1) does not apply…

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 8)

Details

AGLC: R v Chute (No 8) [2019] ACTSC 68
Case: [2019] ACTSC 68
Decision Date: 18 March 2019

CaseChat Overview and Summary

The case of R v Chute (No 8) was heard in the Supreme Court of the Australian Capital Territory, where the defendant, Chute, appealed against the decision of a magistrate to exclude evidence of the complainant’s prior sexual activities. This was a matter of criminal law and evidence, specifically regarding the admissibility of certain types of evidence under the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court was required to determine whether the evidence of the complainant's prior sexual activities could be adduced under s 76 of the Act and whether the trial judge was correct to exclude the evidence under s 78.

The legal issues before the court involved the interpretation and application of s 76 and s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The defendant argued that the evidence of the complainant's prior sexual activities should be admitted as it was relevant to the reliability of her evidence, particularly in light of other alleged abusers. The prosecution opposed this, asserting that the evidence was inadmissible and that its admission would be unfair and prejudicial. The court needed to balance the probative value of the evidence against the potential for prejudice and unfairness.

In its decision, the Supreme Court held that the trial judge was correct to exclude the evidence of the complainant's prior sexual activities under s 78 of the Act. The court found that the probative value of the evidence was outweighed by the risk of unfairness and prejudice. The court acknowledged that the evidence might have been relevant to the reliability of the complainant's evidence, but it concluded that the prejudicial effect substantially outweighed the probative value. The appeal was therefore dismissed.

The final orders of the court were that the appeal be dismissed, and leave was granted to appeal to the High Court of Australia. The trial judge's decision to exclude the evidence of the complainant's prior sexual activities was upheld, and the defendant's application to adduce such evidence was denied.

Orders

Orders of the court

See [6]

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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