Director of Public Prosecutions v Rossiter (No 3)

[2025] ACTSC 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Rossiter (No 3)

Citation: 

[2025] ACTSC 39

Hearing Date: 

17 February 2025

Decision Date: 

17 February 2025

Before:

McCallum CJ

Decision: 

Bail is refused.

Catchwords: 

CRIMINAL LAW – BAIL – where accused failed to appear for trial – where accused an elderly man who permanently resides in Queensland – failure to put forward any bail proposal to reside in the Territory – risk of further failure to appear   

Legislation Cited: 

Bail Act 1992 (ACT)

Supreme Court Act 1933 (ACT) s 20

Parties: 

Director of Public Prosecutions ( Crown)

John Henery Rossiter ( Accused)

Representation: 

Counsel

S Saikal-Skea ( DPP)

A Williamson SC ( Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Accused)

File Number:

SCC 124 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․John Rossiter is charged with five historical counts of sexual offences alleged to have been committed against his biological daughter.  The matter was previously listed for the taking of pre-trial evidence last year but that hearing did not proceed because a concern was raised about the accused’s fitness to plead.

2․The matter was then listed for trial on 3 February 2025.  At that point, the accused was not on bail but was required in accordance with the Bail Act 1992 (ACT) to appear for the trial date, of which he was aware. He did not appear. I issued a bench warrant, exercising the Court’s inherent jurisdiction under s 20 of the Supreme Court Act 1933 (ACT). The accused was arrested and brought to the ACT. He is currently in custody on remand at the Alexander Maconochie Centre.

3․The accused now seeks bail.  I note that the lawyers who have appeared for him today, Mr Williamson SC and Mr Deakes from Legal Aid, are retained only in respect of the bail application.  The accused’s previous lawyers were granted leave to withdraw when the accused failed to appear on 3 February 2025.

4․Mr Williamson SC has provided detailed written submissions.  The submissions assert that the accused failed to appear for his fitness hearing.  In fact, that was the day listed for the accused’s trial and the accused was present when that listing was made.  The fitness hearing was stood over to the same day after Mr Deakes informed the Court that he had been unable to obtain instructions from the accused because the accused refused to travel to Canberra.  It was not practicable to obtain instructions by telephone because the accused is hard of hearing. 

5․At one point (from recollection, although I have not checked the transcript), I was informed that the reason the accused would not come to Canberra was because he did not have the money for the airfare.  It transpires today that the accused has some $140,000 in savings which he was prepared to put up as a surety for his appearance when the trial is listed. 

6․The reason the fitness hearing was stood over to the first day of the trial date was that I assumed the accused would have travelled to Canberra before then and in time for his solicitors to obtain instructions about his fitness to plead.  He did not travel to Canberra.  As submitted by the Crown, there remains no satisfactory explanation for his failure to appear on 3 February 2025.

7․The application for bail today faces no presumption.  As Mr Williamson submits, it is in the category of offences referred to as being “presumption neutral”.  Mr Williamson has put forward powerful submissions as to why a man of the accused’s age should not be retained in custody.  The accused is now aged 96 and will turn 97 within a couple of months.  I am very mindful of the importance of his vulnerabilities being appropriately addressed.

8․On the other hand, as submitted by the Crown, there is a real risk that, if the accused now travels back to the state of Queensland, we will not see him again for these proceedings.  That is the inference to be drawn from the difficulties the accused has travelling, demonstrated in the difficulty Queensland police had in obtaining clearance for him to travel when the warrant was executed.

9․I explored the possibility of obtaining surety both from the accused and from his son and imposing a condition that the son post that security to secure an undertaking that he would personally accompany the accused to Canberra to attend his trial.  The son gave evidence by telephone this morning.  It is clear enough that he has been estranged from his father for a substantial period of time.  He did indicate a willingness to bring his father to the ACT for the trial if the Court imposed that condition on him.  However, I think it is fair to say that his evidence revealed that he would not be an enthusiastic enforcer of that condition.  In particular, as submitted by the Crown, there is clearly a substantial risk that the accused and his son might readily form the view that the accused was not fit to travel back to Canberra for his trial, having travelled back to Queensland, if bail is granted. 

10․In all the circumstances, and with some reluctance, I have concluded that bail must be refused today.  The accused has put forward no proposal for bail on condition that he remain in Canberra, notwithstanding the availability of the funds to which I have referred.  Travel is, obviously, an issue for his health.  In the meantime, the hearing of this matter has become urgent because of the accused’s age.  Owing to the resolution of other matters before the Court, the matter can be fixed for trial on 4 March 2025.  I propose to fix the matter for trial on that date.  In the meantime, if there is any further bail application or any further evidence sought to be adduced by the accused on the fitness hearing, or any other issue that might jeopardise the matter proceeding for trial on 4 March 2025, either party may have the matter relisted urgently before that date.

Orders

11․For those reasons I make the following order:

(1)Bail is refused.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: