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.