On 11 September 2018, Mossop J delivered judgement as to the application for a permanent stay of the special hearing by John Chute. Greg Walsh appeared on behalf of the Accused. The history of the matter is set out in a number of judgments of the Supreme Court; R v Chute  ACTSC 246; R v Chute (No 2)  ACTSC 347; R v Chute (No 3)  ACTSC 409.
On 19 June 2018, the ACAT appointed William Tarrant, a member of the Marist Brothers religious order, as guardian for the accused with power to make an election for the proceedings to be by judge alone. On 26 July 2018, Mr Tarrant made an election for the special hearing to be a trial by a single judge without a jury. On 9 and 20 August 2018, the parties indicated that they did not wish to be further heard in relation to the application for a stay.
The basis of the application for a stay was previously set out in the judgement of Mossop J at  in R v Chute (No 2)  ACTSC 347.
The history of the Accused was set out in Mr Walsh’s Affidavit of 10 October 2017.3
Mossop J at  set out the medical conditions suffered by the Accused. A further Affidavit of 7 November 2017 of Greg Walsh was referred to at length, including the opinion of a forensic psychiatrist, Dr John Roberts  – .
His Honour also referred to further Affidavits of Greg Walsh of 10 November 2017, 20 November 2017 and 1 December 2017.
His Honour referred to the High Court decision in Subramaniam v The Queen  HCA 51; 79 ALJR 116 AT  – . In Subramaniam v The Queen, the Applicant had relied upon her mental health preventing her from being able to give reliable testimony and that further prosecution of the proceedings could have resulted in a serious worsening of her mental health.
Greg Walsh also relied upon the decision of McDonald v The Queen  VSCA 304; 263
A Crim R 356 at . The factor that gave rise to error as found by the Victorian Court of Appeal in that case, was the trial judge had erred in putting aside consideration the likely outcome of the proceedings if the Applicant was found to have committed the offences .
Mossop J at  referred to the factor of unfairness and oppression requiring consideration of the community’s interest in bringing matters to trial. His Honour observed that it would only be in extreme circumstances where an abuse of process is established, to determine whether it is appropriate that any particular charge against any particular defendant proceeds: R v Smith  VicRp 2;  1 VR 10 at .
His Honour placed particular emphasis on the descending judgment of Ferguson JA and the feature that the legislature had seen fit to establish process by which persons who were unfit to stand trial were the subject of a special hearing. His Honour ultimately made a finding that “to assess the question of whether unfairness is such as to amount to an abuse of process without recognition of the inherent features of that process would involve the subversion of the legislative scheme.”
Mossop J was also referred by Mr Walsh to the decision of TS v R  NSWCCA 174 at . In that case, Bellew J (with whom Leeming JA and Adams J agreed) found that the primary judge had erred because the appropriate question was whether or not a remedy was warranted in the particular circumstances of the applicant. At -, Bellew J observed:
“The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.”
In addition, the overall effect of her Honour’s reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial.”
A further fact in that case, was the fundamental unreliability of the Complainant’s evidence.
Greg Walsh also relied upon the judgment of Arrivoli v R  NSWDC 112.
That was a case in which Buscombe DCJ granted permanent stay in the context of historical sexual abuse by a member of the Catholic clergy who was 94 years of age at the time of the hearing of the application for a stay.
Another important issue that Mossop J addressed, was the requirement of the Accused to attend a special hearing. Greg Walsh submitted that having regard to the physical and psychological condition of the Accused, it was not probable that he had the capacity to attend, which was in accordance with the expert evidence of Dr Roberts and also the other medical evidence relied upon as referred to in the Walsh Affidavit. Section 316(1), provides that the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding. Section 316(6) provides that “unless the Supreme Court otherwise orders, ” the accused shall have legal representation at a special hearing.
Mossop J referred to Lipohar v The Queen  HCA 65; 200 CLR 485 at , in which the Court found there is “no trial in absentia at common law in the ordinary course ” His Honour referred to various specific statutory provisions, which authorise trials to proceed in the absence of the Accused. His Honour referred to Jenkins v Whittington  NTSC 65 at -  as to the circumstances in which a trial can be conducted in the absence of an Accused.
At , his Honour compared the Accused’s position to:
“how would the fairness of a trial be advanced by compelling someone who was delusional and uncomprehending of the process to be present during the trial? In this case, the situation is that the accused is unfit because he is unable to follow or adequately process the proceedings. In circumstances where no relevant forensic interest of the accused would be advanced by his presence at the hearing, the presence of a person who was unfit to plead does not appear to me to be an essential requirement of the special hearing process, notwithstanding the general principle in s 316(1 ) of the Crimes Act.”
His Honour ultimately found that there was no suggested reason as to the Accused being present including for an arraignment at the special hearing. His Honour dismissed the application for a permanent stay.
On 17 November 2017, Mossop J gave reasons for his 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)  ACTSC 347. Greg Walsh appeared as Counsel for John Chute. An Affidavit of Mr Walsh dated 20 November 2017 was relied upon in the further hearing of the matter.
A forensic psychiatrist, Dr John Albert Roberts, gave evidence and his Honour had set out the psychiatrist’s findings in respect of an examination of the Accused at the age care facility where he resided.
Dr Roberts was of the opinion that the Accused was not capable, by virtue of his mental state, of appreciating matters that he would need to consider in coming to a decision in relation to the need for him to elect a judge alone trial or a trial by judge and jury.
Mossop J at , concluded that the evidence of Dr Roberts was consistent with the evidence of Mr Walsh, arising with his dealings with the Accused shortly before he was seen by Dr Roberts. His Honour was satisfied that the Accused is incapable of making an election to have his special hearing conducted by judge alone. His Honour then made a direction to the ACT Civil and Administrative Tribunal requiring the appointment of a guardian to consider whether to make an election.
In this matter Greg Walsh acted for Chute.
On 24 July 2017, Murrell CJ found that John Chute was unfit to plead to an indictment containing 16 counts; R v Chute  ACTSC 246.
On 12 October 2017, the Accused sought an order that there be a permanent stay of the special hearing. Mossop J in R v Chute (No 2)  ACTSC 347 at  set out the grounds of the application on behalf of the Accused. Greg Walsh appeared as Counsel for the Accused in respect of the hearing of the application.
On 15 and 16 November 2017, argument took place in relation to the application for a stay. In the course of the argument, it became apparent that following this decision of Murrell CJ, neither of the parties nor the Court had given consideration to the operation of s.316(2) Crimes Act. That permits a person who has been found unfit to plead to elect, either directly or via a guardian to have a special hearing conducted as a trial by judge alone as opposed to a trial by jury.
Mossop J considered the interrelationship between s.316(1)(2) Crimes Act and section 68A & B of the Supreme Court Act 1933 (ACT).
His Honour concluded that there were three reasons why s.68B does not qualify s.316 so as to preclude the making of election by or on behalf of a person who has been found unfit to plead in relation to “excluded offences “ within the meaning of s.68B.
In these circumstances, Mossop J did not determine the application for a stay and heard further submissions as to how to proceed in relation to the operation of s.316(2).