1. The ACT Civil and Administrative Tribunal is directed to appoint a guardian with power to make an election for the special hearing to be a trial by a single judge without a jury.

CRIMINAL LAW - PRACTICE AND PROCEDURE - Special hearing - fitness to elect trial by judge and jury or trial by judge alone - accused previously found unfit to plead to historical child sex charges - whether to appoint a guardian with power to make such an election - consideration of s 316(2) of the Crimes Act 1900 (ACT)

ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT)

Crimes Act 1900 (ACT), s 316(2)

R v Chute [2017] ACTSC 246

R v Chute (No 2) [2017] ACTSC 347

1. On 17 November 2017 I gave reasons for my conclusion that the fact that the procedure in s 316(2) of the Crimes Act 1900 (ACT) had been overlooked did not avoid the obligation to determine whether or not the accused was capable of making an election to have a special hearing conducted as a trial by judge alone: see R v Chute (No 2) [2017] ACTSC 347. Some evidence in relation to that issue was produced by the affidavit of the solicitor for the accused, Mr Walsh, dated 20 November 2017. The accused sought an opportunity to put on additional evidence in relation to that issue. That additional evidence has now been provided. It is a report of Dr John Roberts dated 9 December 2017. Both parties indicated that they consented to having the issue of capacity to make an election decided in chambers without additional written or oral submissions or crossexamination of Dr Roberts. I will mark the report as an exhibit.

2. Dr Roberts received instructions from the solicitor for the accused by letter dated 22 November 2017. That letter identified the issue as being whether the accused had the capacity to understand whether he should elect for a judgealone trial or a trial by judge and jury. It recorded that in response to a question from his solicitor as to whether or not the special hearing should be conducted before a judge and jury or before a judge alone, the accused replied "I wouldn't have a clue, you're the lawyer". Dr Roberts noted the previous opinion of himself and others to the effect that the accused was unfit to plead. He interviewed the accused on 8 December 2017. He recorded that the accused did not recognise him notwithstanding that he had attended upon him as recently as 25 October 2017 for the purposes of preparing a previous report.

3. Dr Roberts obtained from the accused an update as to the accused's perceptions of his own health. Dr Roberts referred to the available medical records which showed that the accused suffered from:

(a) dementia leading to short and long-term memory loss;

(b) a predisposition to falls;

(c) osteoarthritis in his shoulders, knees and hip;

(d) type II diabetes;

(e) ischaemic gliosis (that is, the presence of scarring in the brain due to vascular deficiency);

(f) peripheral oedema in both legs;

(g) high cholesterol;

(h) hypertension;

(i) aortic stenosis; and

(j) renal function issues.

4. As to his capacity to make the decision, in the relevant parts of the report Dr Roberts provided as follows:

I discussed this alternative [namely trial by judge alone versus a trial by judge and jury] with [the accused] and he replied that he couldn't make such a decision; that he could recollect that you as his solicitor had raised the matter.

[The accused] when questioned as to whether he believed he could make a decision in this regard he replied, "I can't figure it out", he asked the rhetorical question as to whether a Jury because of 12 persons might listen more but then commented on a Judge only that he feels that he was not competent to make such a decision; that he is "grasping at things".

... [The accused] commented that he felt that his solicitor should make the decision and I indicated to [the accused] that it was my understanding that the decision had to be made by him on the advice of his solicitor and that his request that his solicitor make the decision for him was not appropriate.

[The accused] stated that he did not believe that he could instruct his solicitor to make a decision in regard to such an election even if the solicitor would explain to him the various matters for consideration.

[The accused] commented on a tendency to panic, he again expressed the fear of travelling to Canberra, he referred to there being a sensation of "panic in me" that it was worse today and in reverting to the question I had posed to him in regard to his making an election in relation to this matter, [the accused] stated he had been receiving a magazine but he was no longer able to read as before, he pointed to a magazine on the side-table and commented "I can't make a decision to cancel a magazine".

It is my understanding that matters relating to the election of a Judge alone versus a Judge and Jury [trial] requires complex consideration of multiple factors.

I am of the view, confirmed by my visit to [the accused] on 8 December 2017 that by virtue of the conditions referred to in my previous report of 3 November 2017 and confirmed by my visit on 8 December 2017; that [the accused] by virtue of his mental state is not capable of appreciating matters that he would need to consider in coming to a decision in relation to the need for him to let as to whether he wishes a Judge or Judge and Jury in this matter.

His failure to comprehend the complexities of coming to such a decision is the result of the conditions from which he suffers and which have been commented upon in my previous report and which underlies the decision of him not being fit to stand Trial.

6. In order to be capable of making a decision as to whether or not to elect for a trial by judge alone, the accused must, in my view, be capable of:

(a) understanding the nature of the decision and the choice to be made;

(b) understanding advice as to what considerations should be taken into account in relation to that decision;

(c) understanding advice as to those considerations and hence the reasons for a recommendation provided by the accused's lawyer;

(d) making a judgment for himself as to whether or not to accept or reject that advice and make the required decision (and, conversely, not being in a position where because of his intellectual incapacity he has no choice but to accept the advice).

7. Murrell CJ accurately summarised the state of the psychiatric and psychological evidence in relation to the accused's fitness to plead: see R v Chute [2017] ACTSC 246 at [15]-[17]. The evidence was largely consistent in that it was that the accused had difficulties with working memory and impairment of his ability to retain information and to appreciate the substantial effect of evidence so as to be able to follow the course of the trial. It was this evidence that led her Honour to find that he was unfit to plead.

8. The decision required to be made for the purposes of an election is a more discreet process than following the course of a criminal trial. However it does involve a need to be able to understand advice and the capacity to weigh, with the benefit of that advice, various matters so as to reach a decision about what course to take.

9. This is not a case where the evidence in relation to that more limited exercise is entirely clear. There is certainly a possibility that notwithstanding his unfitness for trial, the accused is capable of making a discreet decision even though it involves the balancing of multiple considerations.

10. However the expert evidence directly on this point is that of Dr Roberts. There is, in my view, insufficient basis to reject the unchallenged evidence of Dr Roberts in relation to the capacity of the accused to make this decision. The evidence of Dr Roberts is consistent with the evidence of Mr Walsh, his solicitor, arising from his dealings with the accused shortly before he was seen by Dr Roberts. In the light of the evidence of Dr Roberts, I am satisfied that the accused is incapable of making an election to have his special hearing conducted by judge alone. Therefore I will make a direction to ACT Civil and Administrative Tribunal requiring the appointment of a guardian to consider whether to make an election.

1. The ACT Civil and Administrative Tribunal is directed to appoint a guardian with power to make an election for the special hearing to be a trial by a single judge without a jury.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.