IN THE DISTRICT COURT

AT SYDNEY

DPP v JOHN PHILLIP ROLLESTON

APPLICATION FOR STAY OF PROCEEDINGS

OUTLINE OF SUBMISSIONS

ON BEHALF OF JOHN ROLLESTON (the applicant)

Generally

1. The District Court (the Court) holds the power to protect its own

processes from abuse1. If the interests of justice demand it, the

court has the power to permanently stay a trial, and such a power

is to be exercised only in the most exceptional circumstances.2 In

this instance the Court will have recourse to this power, as the

circumstances present the potential for an abuse of process in

combination with significant delay prejudicing the fair trial of the

Accused. In this instance, Mason CJ’s observations with respect to

control of the prosecution of an indictment in criminal proceedings

in Jago are relevant:

1 Jago v District Court (NSW ) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; Moevao v Department of Labour [1980] 1 NZLR 464 at 482

2 Williams v Spautz (1992) 174 CLR 509 at 519, 529, Jago (id) Barton v AG; Connelly v DPP [1943] AC 1254 at 1301.

1

NSW.0039.002.0207_R

“The question is not whether the prosecution should have been brought but whether the court whose function is to dispense justice with impartiality and fairness both to the parties and the community which it serves should permit its processes to be employed in a manner which gives rise to unfairness...

The continuation of process which will culminate in an unfair trial can be seen as a ‘misuse of the court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial” (p. 28-29,30-31)

2. The principles set out in Jago v D istrict Court 168 CLR 23: at

[30], state that the power to prevent an abuse of process is

derived from the public interest in addition to a consideration for

the fairness to the accused

"In essence then, the power to prevent an abuse of process in this context is derived from the public interest; first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.” (Mason CJ at 30)

3. The power to stay proceedings cannot be exercised on the

basis of delay unless there is some other significant prejudice

present. In Jago Deane J (at 55) said:

2

NSW.0039.002.0208_R

“...the burden of criminal proceedings even where intensified by such delay cannot, without more, properly be seen as unfairly oppressive or as an abuse of the process of the particular court...the stage can, however, be reached where the delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable. ”

4. In the present case the delay of 30-41 years has in itself produced

significant prejudice to the applicant. See “Delay” below.

5. Further there are other prejudicial factors that each multiply the

siginificance of the delay. These are:

i. The number of counts (33).

ii. The number of complainants (14); and

iii. The lack of specificity as to the date and time in respect of

counts 2-33 inclusive. (See “Overloading” below.)

6. Some cases where delay is present in addition to further

prejudicial factors resulting in a stay of proceedings are:

• R v Westlev r20041 NSWCCA 1923 (25-26 YEARS DELAY

AND LACK OF SPECIFICITY)

3 R v Westley [2004] NSW CCA [192] at [12]: In his judgment, Nash ADCJ, after an extensive review of the evidence dealt seriatim with the various grounds of the application. As to the prejudice to the applicant caused by the delay, his Honourreferred to Jago v The District Court of New South Wales [1989] HCA 46; (1989)168 CLR 23, R v Nicholson (1998) 102 A Crim R 459 at 467-8, R v Davis (1995) 81 A Crim R 156 and other cases, and noted that delay itself is not sufficient, that actual prejudice by reason of the delay must be shown, and is not

3

NSW.0039.002.0209_R

In R v Westley, confusion as to exact dates resulted in a failure

i to establish that the complaint was under 14 years at the time of

the alleged offence. The appeal was upheld and the

proceedings were stayed.

• R v Littler, unrep, CCA, 4 June 2001 (38-46 YEARS DELAY

AND PREJUDICE TO THE ACCUSED)

The Criminal Court of Appeal upheld an appeal against a

refusal by a trial judge to grant a permanent stay. The relevant

conduct was alleged to have occurred between 1955 and 1963.

The witnesses were dead, demented or unable to be identified.

The applicant’s ability to remember the contextual facts of the

alleged events with reasonable reliability was compromised.

Evidence established that the applicant would not be able to

give evidence coherently and fluently, nor would he be able to

remember evidence previously given by other witnesses or

quickly comprehend questions put to him during examination.

• John Phillip Aitchison v DPP, (1996) 90 A Crim R 448 (7-9

YEARS DELAY AND PREJUDICE TO THE ACCUSED)

Higgins J in the Supreme Court of the ACT granted a

permanent stay in circumstances where the Accused had been

presumed, although the longer the delay, the more likely it will be that actual prejudice can be shown.

NSW.0039.002.0210_R

dealt with for significantly more serious matters occurring

subsequent to the charges before the court. These subsequent

matters had received negative publicity that would have

prejudiced the fair trial of the Accused.

A multiplicity of proceedings would have been needed to

prosecute the matters and the Judge was satisfied that these

convictions would not be given custodial sentences.

Delay

7. Deanne J in Jago (adopting Kirby P in the court below) sets out

five considerations on the effect of delay producing unfairness

et seq pp60-61.

“In his judgment in the present case, Kirby P. identified five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. As his Honour indicated, the first four of them can be traced to the opinion of the Supreme Court of the United States (delivered by Powell J.) in Barker v. Winao [1972] USSC 144; (1972) 407 US 514 (see also United States v. Von Neumann [1986J USSC 6; (1986) 474 US 242; Bell v. D.P.P. (1985) AC 937, at pp 951-952; Herron v. McGregor, at p 252; Rea, v. Clarkson, at p 968; Watson v. Attorney-General (NSW) (1987) 8 NSWLR 685, at pp 697-698). I would slightly adapt

5

NSW.0039.002.0211_R

them to read: (i) the length of the delay; (ii) reasons given by the prosecution to explain or justify the delay; (Hi) the accused's responsibility for and past attitude to the delay; and, (iv) proven or likely prejudice to the accused. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Rea, v. Clarkson, at p 972; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at p 32). Those five "heads" provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of the delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf. Mills v. The Queen, at pp 924-925; Aboud v. Attorney-General (NSW), at pp 683-684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with

NSW.0039.002.0212_R

the courts (see the judgment of Gaudron J. on this appeal).

8. The delay in the present case is lengthy, between 30 and 41

years. 4

9. The effect of the delay has been such as to produce a situation

where any trial of the Applicant would necessarily be unfair.

10. Patient notes have been produced in respect of only 2

complainants, namely Ewe I (Count 1) and Fws - (Counts 2-6). There are no clinical notes in respect of

the remaining complainants or any records whatsoever. In the

case of a medical practitioner there is particular prejudice in

that the patients' notes are a record of treatment and the only

record the Applicant (or any medical practitioner) would have to

ascertain the identity of the patient, treatment provided, the

dates, times and places relevant to the provision of medical

services. In effect a patient's record is a road map for follow up

treatment and an aide memoire. The Applicant is denied these

records. It is not a country town situation where a doctor would

have contact with a small community.

11. In most cases of delay there is a landscape or life pattern such

as school attendances and teacher contact residence at certain

4 Jago v District Court (NSW) (1989) 168 CLR 23 at [13]

7

NSW.0039.002.0213_R

premises, work history, .social activities and sports. In the

Applicant's case, none of these reference points are available.

12. A reasonable practice would see approximately 50 patients per

day. In the Applicant's case, using this figure, he has had

approximately 360,000 consultations in the past 30 years.

Apart from the records referred to above, the Applicant does

not have any opportunity to determine his recollection, his

activities or movements in or out of Australia rerevant to the

charge period.

13. The complainants were complete strangers to the applicant

prior to the "consultations". Following the alleged consultation.~{ J /e.vr/ there was no further contact with the applicant. It is therefore

impossible for the Applicant to adequately address the

allegations by reason of the delay.

14. In the present case the court will have regard to the fact that

f wc !(Count 1) made a complaint to the HCCC in 1998.

f wo I (Counts 7 and 8) made a statement in August

2007 and rwH I (Counts 9 and 10) made a statement

in May 2003 to the HCCC.

15. The delay has caused the following difficulties for the applicant:

i. Absence of relevant witnesses.

ii. Absence of medical records in respect of all but two

. complainants.

8

NSW.0039.002.0214_R

iii. The ability of the applicant to recall events 30 to 41 years

ago.

The applicant is now 72 years of age and his ability to recall the

contextual facts and circumstances has necessarily diminished

over time.

16. In these types of cases fact and fantasy is compounded by the

lapse of time. Furthermore two of the complainants are sibli~ ·

~ (Counts 7 and 8) and f WH I (Counts 9 and 1 ovrhe

reliability of the evidence of all complainants is highly

Z questionable. Furthermore the admissibility of complaint would

be an issue in the trial in the light of "fresh in memory"

provisions in the Evidence Act and at Common Law. See

Littler (supra). Adams J identifies a matter of prejudice

concerning 'the effect of delay on the applicant's ability to

remember with reasonable reliability' what might be called 'the

contextual facts of the alleged occurrences.'

Adams J said at [38]:

[38] The second significant matter of prejudice, which I have already referred to in passing, concerns the effect of delay on the applicant's ability to remember with reasonable reliability what I might call the contextual facts of the alleged occurrences. These comprise, not only the possible presence of significant witnesses to some of the alleged offences or the alleged surrounding circumstances but also the actual timetable of activities and responsibilities undertaken by the applicant and his relationship, if any, with the complainants. To make a rather obvious point, if the

9

NSW.0039.002.0215_R

applicant had committed the alleged offences, it seems likely that he could remember doing so, at least in general terms (though it is important to note that specific offences are alleged). If, on the other hand, he did not commit the alleged offences, then his knowledge of and recollections about the complainants, his interactions with them, and the surrounding circumstances, might well be extremely vague. The mere fact that the applicant remembered what University he went to, when he started teaching, what he taught at Westmead and other such matters would not justify the inference that his recollection of contextual facts was likely (as distinct from possibly) to be good. Indeed, it seems to me to be an affront to common sense and experience to suggest it. Simple forgetting, mistakes, confusion, confabulation are obviously likely in all of us and all the more dangerous in a trial context because the person almost certainly will not know when any one or more of the last three have occurred. The mere fact that this might be no more a problem for the applicant than his contemporaries does not make it any the less seriously prejudicial.

17. Section 294 Criminal Procedure Act 1986 (for proceedings

commenced after 1 January 2007) requires a direction that

absence of, or delay in, complaint does not necessarily indicate

that the allegation is false and that there may be good reasons

why a victim of sexual assault may hesitate in making or refrain

from making a complaint.

18. The new s 165B of the Evidence Act (for proceedings

commenced after 1 January 2009) regulates warnings that are

given to juries in criminal proceedings concerning delay and

forensic disadvantage to the accused. Section 165B(2)

10

NSW.0039.002.0216_R

provides that if the court, on the application by a party, is

satisfied that the defendant has suffered a significant forensic

disadvantage (witness deceased or unable to be located or

potential evidence lost or unavailable: s 165B(7)) because of

the consequences of delay, the court must inform the jury of the

nature of the disadvantage and inform the jury of the nature of

the disadvantage and of the need to take that disadvantage into

account when considering the evidence. The mere passage of

time is not to be regarded as a significant forensic disadvantage

(s 165B(6)) and the judgeTieed^noTtake th is^ctiurrtf there are

good reasons for not doing so: s165B(3). The section is

intended to make it clear that (contrary to the tendency at

common law following Longman v The Queen (1989) 168 CLR

79 for judges to routinely give warnings in relation to forensic

disadvantage arising from delay) information about forensic

disadvantage need only be given if a party applies for it, and

«&honlrt only be given where there is an identifiable risk of

; I prejudice to the accused. Such prejudice should not be

^ assumed to exist merely because of the passage of time.

See Criminal Trial Courts Bench Book at f2-6451 - f2-6601.

19. Such directions could not adequately meet the difficulties

referred to above.

20. Furthermore, it is noted that whilst delay in and of itself does

not provide the threshold required to exercise the discretion to

stay proceedings, it certainly goes to the issue of oppression. In

i i

NSW.0039.002.0217_R

conjunction with the overcharging, there is a sufficient abuse of

process to justify the staying of proceedings.

21. In R v Jeffrey Gilham - BC200712178 - 2007 NSWSC 231,

Howie J explored oppression by delay and prejudice:

[67] The jurisdiction of this Court to stay a criminal trial by reason of delay in the commencement of proceedings cannot be doubted. The jurisprudence in respect of abuse of process caused by delay or otherwise is settled, although its application to any particular case can be problematic. It is unnecessary to set out the relevant principles in this judgment or to say any more about the power of this Court generally to protect itself from an abuse of its processes than the following brief observations.

[68] The decision to grant a stay is often referred to as discretionary in that it requires a value judgment involving the weighing of different considerations that arise in the administration of criminal justice. In Carroll Gaudron and Gummow JJ said at [73]:

The power to stay is said to be discretionary. In this context, the word 'discretionary' indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are n o t...

12

NSW.0039.002.0218_R

[69] However, the ultimate question is one of determining, whether it is in the public interest generally that the trial of the accused proceed or that the Crown be restrained from exercising its right to invoke the jurisdiction of this Court by the presentation of an indictment. The exercise of the Court's power to restrain the Crown is an exceptional one and should only be exercised where the accused has proved to the Court that there is no other procedure open to cure the unfairness or prejudice said to arise from the delay in the commencement of proceedings.

[70] The accused accepts that delay of itself will not generally be sufficient to warrant the court staying a prosecution even thought the length of delay is relevant to the issue of oppression. I have already noted that the accused does not assert impropriety on the part of the police or the Director. There is no suggestion that the initial investigation was incompetent, although the fresh evidence is criticised on the basis that it would have been available at the time of the initial investigation if the right questions had been asked of witnesses or had it been thought that further expert evidence was required. The submission was made that the Crown was little better off in terms of available evidence than it was at the time the decision was made to proceed only on the killing of Christopher.

22. The Crown is not relying on ten

the Crown have indicated it will not sever the indictment. It

would appear the Crown is relying on the similarity between the

alleged offences in respect of all complainants. That is medical

practitioner and young male patients. See R v De Jesus 22 A

Overloading the Indictment

NSW.0039.002.0219_R

23. Thirty two weak cases can look overwhelmingly strong when

considered together. However this is the very prejudice the

courts have attempted to guard against. See R v Phillips

(2006) 22*£LR 303 at [78]-[79],

rIt can be appreciated that separate trials of the several complaints by different complainants adds to the cost of the prosecutions and the defence of the accused.

j ^ However, the dangers in the trial of the appellant, of J admitting the evidence relevant to all of the several! allegations against him, was very great. Despite the \

I efforts of the trial judge to give the jury preciseinstructions on the separate admissibility and use of different evidence, in a case such as the present, such instructions were bound to be confusing and prone to error. The prejudice to the fair trial of the appellant was substantial.

24. See also R v Ellis (2003) 144 A Crim R 1; R v Milton [2004]

NSWCCA 195; R v Barton (2004) NSWCCA 229 and R v

Fletcher [2005] NSWCCA 338 per Simpson J at [49]-[50],

25. The Victorian case of G B F v The Queen (2010) VSCA 135

(Nettle and Harper JJA and Hansen AJA is also relevant. See

[51]-[55].

26. The indictment as it currently stands would required directions

and reasoning by the jury bordering on the metaphysical.

27. In the case of Mr. Rolleston, the number of charges and the

number of counts will produce an unworkable trial in that the

jury, despite directions, will be unable to properly consider

the evidence in respect of each count. There would be

14

NSW.0039.002.0220_R

approximately 900 permutations of fact. This is clearly

oppressive in itself. Furthermore, the prejudice produced by

this approach would be incurable.5

Conclusion

28. The indictment is oppressive and will produce an unworkable

and unfair trial. This together with the delay and its own

consequences compounds the unfairness in a way that Adams

J described in Littler. if is not simply a matter of adding one

area of prejudice upon another but addressing the multiplying

effect of each area of prejudice which exponentially renders the

prejudice and oppression overwhelming and incurable.

29. In totality this therefore is an exceptional case warranting

intervention so that the potentiality of an oppressive and unfair

trial can be avoided.

A J Bellanto QC Michael AinsworthSamuel Griffith Chambers Samuel Griffith Chambers

5 G B F v The Queen [2010] VCSA 135 at [51]

15

NSW.0039.002.0221_R