Director of Public Prosecutions v Rossiter (No 2)

[2025] ACTSC 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Rossiter (No 2)

Citation: 

[2025] ACTSC 12

Hearing Date: 

3 February 2025

Decision Date: 

3 February 2025

Before:

McCallum CJ

Decision: 

Pursuant to s 20 of the Supreme Court Act, I direct that a warrant issue for the arrest of the accused.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where accused not on bail failed to appear for trial – whether the Court has power to issue a warrant for his arrest

Legislation Cited: 

Bail Act 1992 (ACT) ss 10, 11

Magistrates Court Act 1930 (ACT) s 89

Supreme Court Act 1933 (ACT) ss 20, 70A

Parties: 

Director of Public Prosecutions ( Crown)

John Henery Rossiter ( Accused)

Representation: 

Counsel

S Saikal-Skea ( Crown)

No appearance (Accused)

Solicitors

ACT Director of Public Prosecutions

No appearance (Accused)

File Number:

SCC 124 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․John Rossiter was due to stand trial today on an indictment containing five counts of historical child sexual offences.  He failed to appear.  Plainly, a warrant should issue. However, a question has arisen as to the Court's power to issue a warrant in circumstances where Mr Rossiter was either the subject of a decision to dispense with bail or is a person in respect of whom no specific order or direction was made in relation to bail (I cannot tell which from the Magistrates Court file). 

2․I am of the view that the Court has power under s 20 of the Supreme Court Act 1933 (ACT) to issue a warrant for Mr Rossiter’s arrest. My reasons for that conclusion are as follows.

3․It is helpful to begin by explaining the circumstances in which the trial came to be listed for hearing today.  Mr Rossiter was committed for trial by the Magistrates Court on 3 May 2024.  On the first occasion when the matter came before this court, the Court directed, as commonly occurs, that he was excused from further attendances in the event that he was legally represented.  He has been legally represented throughout the proceedings until today. 

4․This morning, before the matter was called for trial, his counsel and solicitor sought leave to withdraw in circumstances where they have been unable to obtain instructions from Mr Rossiter and in light of his failure to appear.  In the course of that application, the Court was informed that the legal representatives had anticipated the possibility that Mr Rossiter may not appear, having spoken to him by telephone over the weekend.  In response to a question from me, it was confirmed that he had stated that he was not proposing to attend court.  In the circumstances, I granted leave to the legal representatives to withdraw.  The matter was then called for trial.

5․During the period when the accused was legally represented, he was arraigned by me by AVL on 3 July 2024.  He entered pleas of not guilty to all charges.  The process of arraignment enlivens the jurisdiction of this Court. 

6․Subsequently, on 29 July 2024, the matter was listed for trial by jury today with an estimate of five days.  The accused was not present on that occasion but was legally represented.  As already indicated, I am satisfied that he was aware of the listing date today in light of the conversation with his former lawyers to which I have referred. 

7․Customarily in this Court, where an accused person is on bail and fails to appear when required, the Court issues a warrant under s 70A of the Supreme Court Act.  That section provides:

Failure to attend Supreme Court as required

(1)If a person duly bound by recognisance or served with a subpoena to attend as a witness in a proceeding before the Supreme Court fails to attend, or remain in attendance, before the Supreme Court as required by the recognisance or the subpoena, the court may issue its warrant directing that the person be arrested and brought before the court to give evidence in the proceeding.

(2)If a person duly bound by a recognisance or served with a subpoena to attend as a witness in a proceeding before the Supreme Court appears or is brought before the Supreme Court, after having failed to attend or remain in attendance before the Supreme Court as required by the recognisance or the subpoena, the court may, if satisfied that the failure to attend was without just cause or reasonable excuse—

(a)order the person to pay a fine not exceeding $5 000; or

(b) order that the person be imprisoned for not longer than 6 months; or

(c) make orders under both paragraph (a) and (b).

8․One possible interpretation of that section is that it refers to witnesses bound by recognisance or who have been served with a subpoena to attend as a witness, rather than to accused persons. That interpretation is confirmed by the words at the conclusion of the section which state that the court may issue its warrant “directing that the person be arrested and brought before the court to give evidence in the proceeding.” It is also confirmed by the heading, “failure to attend” (rather than failure to appear). The heading is part of the Act: s 126 of the Legislation Act 2001 (ACT). Witnesses attend court; parties appear. An accused person, of course, cannot be brought before the court to give evidence.

9․In any event, that is the section that has customarily been resorted to for the purpose of issuing a warrant in the case of non-appearance by a person on bail, presumably on the premise that the person is bound by his or her recognisance to appear on the trial date.  I note, however, that the word “recognisance” does not appear in the Bail Act 1992 (ACT). Rather, s 6(1)(b) of the Act contemplates that a person granted bail will give “an undertaking” to appear.

10․As already noted, however, the accused is not on bail. He is a person as to whom the requirement for bail was either dispensed with or is taken to have been dispensed with: see ss 10(1) and 10(3) of the Bail Act.  Subsection 10(3) provides that where no specific order or direction is made by the court in relation to bail, the court is taken to have dispensed with the requirement of bail.  It follows that the accused is a person whose only obligation to appear is to be inferred from the fact that the court’s jurisdiction has been enlivened and he knows that he is required to appear for trial today. 

11․Section 11 of the Bail Act provides, as to the effect of dispensing with bail:

While the requirement for bail is dispensed with under this Act in relation to a person accused of an offence, the person is entitled to be and to remain at liberty in relation to the offence until the person is required to appear before a court in relation to the offence. 

12․As I have indicated, Mr Rossiter must be taken to know that he was required to appear today for trial in relation to the indictment on which he has been arraigned. 

13․It would be an absurdity in the circumstances if there was no power to bring the accused before the court to stand trial. The Magistrates Court has an express power in such circumstances under s 89 of the Magistrates Court Act 1930 (ACT) to issue a warrant for the person’s arrest to answer to the information and be further dealt with according to law, upon being satisfied on oath that the summons was properly served a reasonable time before the time scheduled for appearance.

14․Absent any express statutory provision conferring power to issue a warrant, the question is whether that power falls within s 20 of the Supreme Court Act.  That section provides:

The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.

15․Subject to being satisfied, in the language of s 11 of the Bail Act, that the person has knowledge of the requirement to appear before a court in relation to the offence,[1] it seems to me that this is very much the kind of circumstance intended to be addressed by s 20 of the Supreme Court Act.  The accused’s appearance is necessary to administer justice in the Territory.  I consider that, in order to administer justice in the Territory in these proceedings, it is necessary to issue a warrant for the accused’s arrest in light of his failure to appear and answer the call for trial. 

[1] In the course of revising this ex tempore judgment, it has occurred to me that knowledge of the requirement to appear is not necessarily a condition of the issue of a warrant.

Orders

16․For those reasons, pursuant to s 20 of the Supreme Court Act, I direct that a warrant issue for the arrest of the accused. 

17․I note that before, being granted leave to withdraw, the accused’s counsel requested that certain medical information accompany the warrant.  I am informed by the Registry that it is not possible for medical information to be physically attached to the warrant.  In the circumstances, I direct that the Court provide to the Warrant Sergeant, together with the original warrant, the two medical reports specified by counsel, namely, the general practitioner’s letter dated 17 October 2024 and the DGM Psychology Pty Ltd report, originally dated 24 November 2024, and I ask that the Warrant Sergeant be politely requested to forward that information to any person charged with responsibility for executing the warrant. 

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 3 February 2025