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 arrangements are sufficient for the limited scope of appearance by the accused which is contemplated.

1. In considering whether it is in the interests of the administration of justice to make the direction, s 32(3) provides that the court may consider—

(a)whether the evidence or submission can more conveniently be given or made from the place;

(b)whether the making of the direction is unfair to any party opposing the making of the direction;

(c)whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding;

(d)anything else that the court considers appropriate.

1. In the present case, the basis on which it is sought to have the accused appear by video link is that:

(a)his physical and mental condition means that his appearance at the special hearing would be physically difficult and would carry with it risks to his health; and

(b)his appearance in person at the special hearing would be of little utility to him, his legal representative or the court because his dementia means that he would be unable to contribute in a substantive way to the court process.

1. The evidence that discloses this position has been referred to in the reasons which I have given in R v Chute (No 4) [2018] ACTSC 259 at [20]-[39] and R v Chute (No 7) [2019] ACTSC 67.

1. It is proposed to use the video link solely for the arraignment.  After that counsel for Mr Chute has applied for him to be otherwise excused from participation in the proceedings.  So far as the arraignment is concerned, having regard to the fact that the proceedings are a special hearing, he is to be treated as having pleaded not guilty in any event: Crimes Act 1900 (ACT), s 316(8), and hence his response to the charges will not be required. However, notwithstanding that, counsel for the Crown has sought that the accused be arraigned because of the operation of s 316(1) and the decision in R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1. While the legislation in the Territory is different in material respects from New South Wales legislation, the participation of the accused in the arraignment is sought in order to reduce the risk that the absence of his participation in the arraignment be seen as an unlawful departure from the requirements of s 316(1).

1. So far as the matters referred to in s 32(3) are concerned, the position is as follows.

(a)Whether the evidence or submission can more conveniently be given or made from the place: This consideration does not on its terms apply because it is drafted on the basis that the person is a witness who is to give evidence or a person who will be making a submission. However, the opening words of s 32 contemplate a person may “appear before” a court using audiovisual means. In the present case it is absolutely clear that the appearance of the accused will be more conveniently achieved if he appears by audiovisual link.

(b)Whether the making of the direction is unfair to any party opposing the making of the direction: The accused did not oppose the application.  The making of the direction in the present case is not unfair to the accused.  Rather, the application was made at the same time as the accused made an application to be excused from appearance for the purposes of the special hearing by reason of his medical condition.  The making of a direction will allow him to appear by audiovisual means and avoid the necessity that he travel from his present residence in Sydney.  In the unusual circumstances of this special hearing, his nonappearance at the special hearing will not be unfair to him because he would not be able to participate in the hearing in any substantive way and, given that the special hearing is being conducted by judge alone, will not suffer prejudice by reason of his failure to appear in person.

(c)Whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding: Court efficiency is not a significant consideration in relation to the present application.

(d)Anything else that the court considers appropriate:  The relevant considerations have been dealt with above.

1. In my view, having regard to the above considerations, in the unusual circumstances of the present case, it is clear in the interest of justice that the accused be permitted to appear by audiovisual link for the purposes of his arraignment at the commencement of the special hearing.

Excusing the accused

1. The accused is presently on bail and required to appear for the purposes of his proceedings.  He has not appeared for the purposes of his trial. 

1. For the reasons given in Chute (No 4) at [74]-[90], there are only very limited circumstances in which the common law would permit a criminal trial to proceed in the absence of the accused. Whilst a number of jurisdictions have provisions of general application which give a trial judge discretion to permit a person to be absent during the whole or part of a trial, there is no equivalent in the ACT: see Chute (No 4) at [79]. This may be something to which the legislature should give consideration. In the case of a special hearing the legislative requirement is that it be conducted “as nearly as possible as if it were an ordinary criminal proceeding”: Crimes Act, s 316(1). That would ordinarily require the attendance of the accused, although having regard to the nature of the provision and the variety of circumstances in which a person may be unfit, s 316(1) must be sufficiently broad as to accommodate the non-attendance of an accused person at a special hearing.

1. In the present case, the accused has sought to be excused from appearance because of the difficulty, discomfort and health risks associated with him being required to travel from Sydney to Canberra for the purposes of a hearing in circumstances where he has been found unfit to plead and he would be able to make no substantive contribution to the hearing, either by way of giving instructions to his legal representative or otherwise.  My findings in that regard are reflected in the reasons that I gave in R v Chute (No 4) at [72] and R v Chute (No 7).

1. For the reasons I have just given he will be able to appear for the very limited purpose of being “arraigned”.  I refer to being arraigned in this way because that process will involve the identification of the accused and a public reading of the charges but will not involve him pleading to the charges because he has been found to be unfit to plead.  Instead, it will involve the court identifying that he is taken under the legislation to have pleaded not guilty.

1. While it would be possible to have him appear by audiovisual means for a greater portion of the special hearing, he seeks to be excused as, on the evidence he would, at the very least, not understand the proceedings and would find further involvement tiring and unpleasant.

1. In my view, for the reasons given in Chute (No 4), the fair conduct of a special hearing to be conducted as a trial by judge alone in the case of a person who is unable to follow or adequately process the proceedings does not have to involve the accused appearing at the trial in person in circumstances where leave has been sought to have him excused and his nonappearance will cause him no forensic disadvantage. It is therefore open under s 30 of the Bail Act 1992 (ACT) to excuse him from his obligation to appear at the special hearing and direct that the special hearing proceed notwithstanding that he has not appeared.

1. In my view, it is appropriate that he be excused from appearance for the purposes of the special hearing other than to the limited extent that I have indicated.  In relation to both applications I will direct as follows:

1.     Notwithstanding the bail undertaking given on 9 August 2016, the accused is excused from attending the special hearing commencing on 19 March 2019 so long as he is legally represented at that hearing.

2.     The accused may appear at the hearing for the purposes of arraignment by audiovisual link.

3.     Subject to order 2, the special hearing may proceed notwithstanding that the accused is not present at the hearing.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 28 March 2019