R v Chute (No 9)

[2019] ACTSC 69

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Chute (No 9)

Citation:

[2019] ACTSC 69

Hearing Dates:

18 and 19 March 2019

DecisionDate:

19 March 2019

Before:

Mossop J

Decision:

See [18]

Catchwords:

CRIMINAL LAW –– JURISDICTION, PRACTICE AND PROCEDURE – Special hearing – participation of accused – application for arraignment via audiovisual link from a remote location – response to charges from accused not required – no objection by Crown – application allowed

CRIMINAL LAW –– EVIDENCE – Application for the accused to be excused from attending special hearing – current bail undertaking to appear – accused located in New South Wales – accused is of poor health – accused not fit to plead – excusal of the accused would cause no forensic disadvantage – application allowed

Legislation Cited:

Bail Act 1992 (ACT), s 30

Crimes Act 1900 (ACT), ss 316(1), 316(8)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 32, 32(2), 32(2)(a), 32(2)(b), 32(3)

Cases Cited:

R v Chute (No 4) [2018] ACTSC 259

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

R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1

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:

1. The accused has made an application to be excused from attending court during the course of the special hearing notwithstanding that he has given a bail undertaking to appear. The Crown has sought an order under s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) that would permit the accused to appear by audiovisual link for the purposes of the conduct of an arraignment. I will deal with the application under s 32 first.

Audiovisual link

1. Section 32 permits a court to direct that a person may appear before it by audiovisual link from a place outside the Australian Capital Territory (ACT) but within Australia.

1. Under s 32(2) the court may only make that direction if satisfied that “the necessary facilities are available or can reasonably be made available”: s 32(2)(a) and “it is in the interests of the administration of justice to make the direction”: s 32(2)(b).

1. In relation to the availability of necessary facilities, the affidavit of Vienna Conliffe dated 18 March 2019 discloses:

(a)    that the manager of the residence at which the accused lived had communicated to the Crown that he was content for a member of the Australian Federal Police (AFP) to attend the residence to facilitate an audiovisual link between the court and the accused;

(b)    that the Crown had secured an AFP officer with adequate audiovisual equipment to attend the residence on the required date and at the required time to facilitate an audiovisual link between the court and the accused; and

(c)    that the Crown had tested the audiovisual link as between the court and the AFP officer and that that test had been successful.

1. In my view, these…