procedural. Application for a certificate under s 128 of the Evidence Act 1995 refused. The judge concluded at [27] that it was not in the interests of justice for Rolfe to give evidence in the proceedings.
Key principles
Under s 128(4) of the Evidence Act 1995 (NSW), the court may require a witness who has objected to giving potentially self-incriminating evidence to give it only if the court is...
Whether the interests of justice require a certificate is assessed by considering the competing interests in the particular case. Relevant matters can include the importance and...
In this case, the interests of justice did not require a certificate for Rolfe. The judge considered that his objectively unreliable and partly exculpatory account could give the...
Issues before the court
Whether the interests of justice required a certificate under s 128(4) so that Timothy Rolfe could be required to give evidence in the trial of the...
Whether proposed use of Rolfe's evidence created material fairness concerns for Rolfe's future trial and for the current accused's trial.
How the reliability and potential value of the proposed evidence affected the interests-of-justice assessment.
Plain English Summary
The judge refused to give Timothy Rolfe a certificate that would have allowed the Crown to require him to testify while he was awaiting his own trial. The judge weighed the Crown's interest in using parts of Rolfe's account against the risk of unfairness to the four accused and to Rolfe. In particular, the judge was concerned that Rolfe's conflicting and unreliable accounts could help the Crown in the current trial, while a promise by prosecutors to quarantine his evidence did not prevent police from pursuing further investigations. The decision turned on the circumstances of this case and the judge's assessment that the interests of justice did not require Rolfe to testify.
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Deep Dive
2,397 words · generated 28/09/2026
What happened
In R v Mujuevic, Saliba, Rymer, Cusens [2017] NSWDC 215, Judge Norrish QC considered an application concerning Timothy Rolfe, a person charged alongside the four accused but ordered to be tried separately. The prosecution wanted to call Rolfe as a witness in the trial of Eldin Mujuevic, Jamie Saliba, Chris Michael Rymer and Troy Cusens.
Cited legislation
No linked legislation citations have been extracted yet.
The shared charges had crystallised into counts 1 and 2 of the indictment. The judge had ordered separate trials after concluding there was “a real risk” of positive injustice to the four accused if Rolfe were tried with them. That assessment arose in part from Rolfe’s 23 March 2017 interview and the risk that his account could affect the jury’s view of the other accused, including through their association with the same motorcycle club ([3]–[4]).
The Crown’s proposed use of Rolfe was not straightforward. He had given an account to police in March 2015 and a materially different, exculpatory account in March 2017. The Crown’s case was that he was one of three masked men involved in the shooting and subsequent beating of Mr Christian, despite Rolfe’s later account. The prosecution wanted to rely on parts of that account, including his admission that he was inside the clubhouse, while also putting to him that he had participated in a joint criminal enterprise ([14], [19]–[20]).
The application concerned s 128 of the Evidence Act 1995 (NSW). Rolfe objected to giving evidence on the ground that it might tend to prove he had committed an offence. The judge determined that there were reasonable grounds for the objection and then considered whether the interests of justice required the evidence to be given ([5]–[8]). The judge refused the certificate on 19 April 2017 ([27]).
The proceeding was a voir dire determination within the criminal trial. It did not decide whether Rolfe committed an offence, whether the accused were guilty, or whether any account given by Rolfe was ultimately true.
Why the court decided this way
The judge treated the interests-of-justice inquiry as a balancing exercise involving the Crown, the witness, and the accused. He noted that the relevant factors were “wide ranging” and that the categories were not closed. The judgment identifies considerations including the importance of the evidence, its likely reliability, the character of the proceeding, resulting unfairness, the likely effects of requiring the evidence, and means of limiting publication or use ([24]).
The Crown had a legitimate evidentiary interest in calling Rolfe. It proposed to rely on part of his 23 March account as evidence placing him inside the clubhouse, which could support Mr Christian’s account of where the initial assault occurred. The judge recognised the potential significance of this evidence to the prosecution’s case, particularly in light of the absence of physical evidence establishing that the assault occurred inside the clubhouse ([25]).
But the Crown’s use of the evidence was selective. The Crown did not accept Rolfe’s account as a whole and anticipated putting to him that he was one of the masked men and participated in a joint criminal enterprise. The judge considered that the Crown expected Rolfe not to accept that version and had no reasonable basis for expecting him to do so ([14], [20]). That created a concern that the evidence might enable the Crown to use the parts helpful to its case while presenting a challenge to Rolfe’s credibility on other parts.
The reliability of the proposed witness was central. The judge contrasted Rolfe’s March 2015 account with his March 2017 account. The earlier account was inconsistent with his physical presence at the shooting and with physical evidence known to police. The later account was given after Rolfe had, in the judge’s view, considerable knowledge of the physical evidence available in the trial, including CCTV footage bearing on movements around the clubhouse ([19]). The judge described Rolfe as objectively unreliable in material respects, including by reference to the Crown’s own position on the account ([25]).
The judge also considered the likely effect on the accused’s trial. Rolfe’s evidence could give the Crown an opportunity to place admissible evidence before the jury supporting part of Mr Christian’s account, including in relation to the assault inside the clubhouse. The judge considered that the risk of an unreliable account could affect the fairness of the trial, and noted that the reasons for separating Rolfe from the other accused were connected to the same features of his account ([16], [21], [26]).
A further concern was the position of Rolfe in relation to his own future trial. A certificate under s 128(7) would generally protect certified evidence from being used against him, subject to the statutory exception for proceedings concerning falsity of the evidence. The Deputy Director of Public Prosecutions offered to quarantine Rolfe’s evidence from the prosecution of his case and use a different prosecutor. But the judge considered that the undertaking did not bind police investigators and did not necessarily prevent further inquiries prompted by the evidence ([9]–[10], [15]).
The judge considered authorities addressing fairness where a person awaiting trial is required to give evidence. In particular, he referred to Lee v The Queen [2015] HCA 20 and to Gedeon v The Queen [2013] NSWCCA 257. He understood those authorities as recognising that potential unfairness to an accused witness, including the possibility that information may reach prosecutors or investigators dealing with a future prosecution, can be relevant to the interests-of-justice assessment ([12]–[13], [26]–[27]).
Ultimately, the judge considered that the circumstances went beyond the general proposition that accomplice evidence may be unreliable. In his assessment, requiring Rolfe to testify would risk unfairness both because of the nature and reliability of his evidence and because of the use the Crown proposed to make of it. The judge therefore concluded that the interests of justice did not require the certificate ([21], [25]–[27]).
Before and after state of the law
The judgment applied the statutory framework in force at the time, rather than announcing a new test. Section 128(1), as quoted in the judgment, applied where a witness objected to giving evidence on the ground that it might tend to prove the witness had committed an offence. Under s 128(2), the court was to decide whether there were reasonable grounds for the objection. If so, the court was required to explain relevant protections to the witness. Section 128(4) then permitted the court to require the evidence if the statutory conditions were met, including that “the interests of justice require that the witness give the evidence” ([5]–[8]).
The judge’s account of the law emphasised that “interests of justice” did not have a closed list of relevant factors. He relied on the discussion in Odgers’ Uniform Evidence Law and referred to R v Collisson [2003] NSWCCA 212 and Turco v HP Mercantile Pty Ltd (No 2) [2009] NSWCA 209 in considering potential reliability and other relevant circumstances ([24]). Collisson was particularly important because it concerned refusal of a certificate for an accomplice whose criminal matter had not been finally dealt with. The judge noted the established concern about calling an accomplice before that person’s own criminal activity has been dealt with ([23], [26]).
The judgment also connected the statutory inquiry with broader fair-trial concerns. It referred to Lee v The Queen [2015] HCA 20 in discussing the effect of prosecution access to evidence obtained from an accused under compulsion. The judge acknowledged that Rolfe’s situation was not necessarily the same as evidence compelled by the New South Wales Crime Commission, but considered that the risk of information being used to support further investigative steps remained relevant ([12]–[15]).
The result was an application of existing principles to the particular procedural position of an accused who had been separated from a co-accused’s trial, remained charged, and was asked to testify under objection. The judgment does not establish that a certificate should generally be refused whenever a witness is awaiting trial or is an alleged accomplice. It records a fact-specific assessment of reliability, evidentiary use, trial fairness, and the limits of the proposed safeguards.
The supplied judgment contains no account of later judicial treatment of this decision. It therefore does not establish whether later courts followed, distinguished, or otherwise treated it.
Key passages with plain-English translation
At [24], the judge said the relevant considerations were “wide ranging” and that the categories were not closed. In plain English, the court was not confined to a checklist. The assessment could account for the practical consequences of requiring the particular witness to testify, alongside the value and quality of the evidence.
At [16], the judge explained that the Crown’s proposed use of Rolfe could provide evidence admissible against all four accused, including support for part of Mr Christian’s account. The practical point was that testimony given by a person who was himself charged could affect the case against others, not merely his own position.
At [15], the judge considered the limits of the prosecutor’s undertaking. The promise to quarantine the evidence could regulate prosecutorial handling, but in the judge’s view it did not prevent police from conducting further investigations. In plain English, the proposed safeguard did not control every government body that might come into contact with information generated by the testimony.
At [21], the judge described the circumstances in which Rolfe came forward as creating “an unacceptable unfairness to the accused”. That was the judge’s evaluation of the particular circumstances, including the Crown’s position that it would rely on parts of Rolfe’s account while disputing other parts. It was not a finding that the four accused were guilty or innocent.
At [27], the judge stated the result directly: “I do not propose to issue a certificate for him to give evidence in these proceedings.” The order resolved only whether Rolfe could be required to testify under the proposed s 128 certificate in that trial.
What fact patterns trigger this precedent
The decision is most relevant to a certificate application where a proposed witness is also charged with related offences and has not yet been tried. That procedural position makes the witness’s exposure to self-incrimination and the potential effect of testimony on a future trial salient. Here, Rolfe had been separated from the trial of the four accused and was expected to face trial later ([1]–[5]).
It is also relevant where the witness has given materially different accounts and the prosecution expects to challenge the witness while relying on selected parts of the evidence. The judge regarded the differences between Rolfe’s earlier and later accounts, his knowledge of evidence available to the Crown, and the prosecution’s anticipated position as important to reliability and fairness ([14], [19]–[21], [25]).
Another relevant feature is the proposed use of the testimony against co-accused. The judge was concerned that Rolfe’s evidence could assist the Crown on a contested factual issue, including the location of the initial assault, and could be used to support the account of another prosecution witness ([16], [25]).
Finally, the decision may be relevant when proposed protections consist of prosecutorial undertakings that do not extend to investigators or other parts of law enforcement. The judgment treated that limitation as relevant to the risk of further use of the information ([10], [15]).
These features are not a substitute for the statutory test. The decision does not say that any one feature automatically determines whether the interests of justice require a certificate. It records how the judge assessed their combined effect in this case.
How later courts have treated it
The material provided is the 2017 District Court judgment itself and lists the authorities considered by Judge Norrish QC. It does not include later cases discussing or applying R v Mujuevic, Saliba, Rymer, Cusens. On this source alone, later treatment cannot be established.
The judgment’s own treatment of earlier authorities is identifiable. It treated R v Collisson [2003] NSWCCA 212 as central to the application and concluded that its reasoning supported refusing the certificate in the circumstances. It considered Gedeon v The Queen [2013] NSWCCA 257 in relation to a witness awaiting trial and the interests-of-justice inquiry. It also discussed Lee v The Queen [2015] HCA 20 in relation to fairness and the potential use of evidence in a later prosecution ([12]–[13], [26]–[27]).
The judgment referred to X7 v Australian Crime Commission [2013] HCA 29 and Lee v New South Wales Crime Commission [2013] HCA 39 in support of the relevance of potential unfairness where evidence may be available to prosecution or investigators ([27]). It also referred to R v Booth [1982] NSWLR 847 concerning the practice of dealing with an accomplice’s criminal activity before calling that person as a witness ([23]).
Those are relationships between the 2017 judgment and the cited authorities. They do not establish how courts treated the 2017 decision afterwards.
Still-open questions
The judgment expressly raised, but did not resolve, a question about s 128(7): who determines whether evidence is false, and by what process, when the witness has given conflicting accounts and the prosecution alleges that the later account is largely false ([10]). The judge noted that the exception to the certificate’s protection for proceedings concerning falsity could have practical significance in Rolfe’s circumstances.
A second issue was the extent to which a prosecutor’s undertaking can address risks arising from investigations conducted by police. The judge considered that the undertaking was binding on prosecuting authorities in relation to the evidence itself, but did not restrict further inquiries by the Commissioner of Police ([10], [15]). The judgment did not determine what additional safeguards, if any, would be sufficient in a different case.
The judge also acknowledged that requiring Rolfe to give evidence under s 128 was not necessarily equivalent to obtaining evidence under compulsory Crime Commission powers. He treated the comparison as arguable rather than deciding that the situations were legally identical ([15]). The precise relationship between those settings was therefore left open.
Finally, the judgment does not supply a formula for weighing the Crown’s need for evidence against the witness’s position and the fairness interests of co-accused. It says the factors are wide-ranging and not closed, then applies them to Rolfe’s particular circumstances ([24]–[27]). The balance in another case would depend on its evidence, procedural history, proposed use of the testimony, and available protections.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Catchwords
2014/003479312014/003474052014/00347675
Judgment (2 paragraphs)
[1]
Judgment
Application by Timothy Steven Rolfe for a certificate under Evidence Act 1995 s 128; see transcript p 1405,1407,1407
HIS HONOUR: The prosecution has indicated from the time the Court ordered that Timothy Rolfe be tried separately from the current accused that it would wish to call Mr Rolfe to give evidence in the Crown case. To put the matter in historical context, as I understand it, Mr Rolfe, along with the four current accused; that is, and in no order of importance, Mr Mujuevic, Mr Saliba, Mr Rymer and Mr Cusens, was ordered to stand his trial in this Court in respect of common charges which have crystallised into counts 1 and 2 in the indictment.
On 28 March of this year, I gave a judgment in respect of what initially started out as an application for a separate trial by another accused, but which ultimately morphed into a determination that Mr Rolfe should be separately tried from the other four accused. The Crown has a discretion there and after as to in which order the accused would be tried, and to my mind properly determined that the four accused should be tried first, and Mr Rolfe should be tried at another time.
I will come back to some of the matters that I referred to in that judgment in the context of dealing with aspects of the matter ventilated this morning. But it is worthy of note in light of what I had foreshadowed to be my decision in this matter, that I concluded on the material available to me on or before 28 March that there was "a real risk" of positive injustice to the other accused by Mr Rolfe being tried jointly with them in circumstances where the Crown and Mr Rolfe would rely upon the detail of his further interview of 23 March 2017 (exhibit 14 on the voir dire) which prompted the separate trial application.
I noted, amongst other issues that arose for determining that Mr Rolfe should be separately tried, that there were aspects of his account given on 23 March 2017 and in explanation of a different account he gave in March 2015 that raised:
"(a) real risk of infecting the jury's mind in respect of the reputation, proclivity and/or attitude and conduct of the co accused, particularly through their common association with the same motorcycle club and the character of the Crown case against each of them."
The matter I have been required to resolve today concerns the question that arose very early in the piece as to whether I should grant Mr Rolfe a certificate pursuant to s 128 Evidence Act 1995, hereinafter to be referred to as "the Act". Mr Rolfe was produced today by arrangement with the Court. The issue of whether a certificate should be issued under s 128 was clearly a threshold matter that had to be attended to, including an examination of whether Mr Rolfe objected to giving evidence, bearing in mind Mr Rolfe was a co accused of the four accused now on trial, and was required to stand his trial at a later time, and given the fact that Mr Rolfe has not been offered any immunity from prosecution or any "benefit" in respect of the matter. One ordinarily would expect that his trial would follow upon this at some future time.
Section 128 Evidence Act 1995 provides that:
"(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law..."
The Court must determine whether or not there are reasonable grounds for the objection (s 128(2)), and if the Court determines that there are reasonable grounds for the objection, as I did very early in the piece for obvious reasons, I am required to inform the witness, subject to the terms of s 128(4) of the matters set out in s 128(3).
s 128(4) states
"The Court may require the witness to give the evidence if the Court is satisfied that:
(a) the evidence does not tend to prove that the witness has committed an offence against or arising...a law of a foreign country [which does not apply here] and
(b) the interests of justice require that the witness give the evidence."
I got to the point in discussing the matter with Mr Rolfe in the presence of the accused and in the presence of his counsel, Ms Evers, of determining the question of whether the "interests of justice" require the witness to give evidence. As I said earlier, that became the focal point of the inquiry. In respect of that matter I have heard submissions from the parties. I have received a number of authorities, some of which I will refer to shortly, and I received some further evidence in the course of the Crown's submissions, particularly a notice, or notices, issued by the Crown to the solicitors for the accused that the Crown "presently intends to seek leave to question Timothy Steven Rolfe as though the prosecution were cross examining that witness." Being a notice of an intended application pursuant to s 38 of the Act.
.The other document tendered by the Crown, which is exhibit 28 now on the voir dire, was a document forwarded to Ms Evers in respect of a claim by her of potential unfairness to her client if the Crown was to call Mr Rolfe to give evidence in this trial. This is an email forwarded to Ms Evers by the Deputy Director of Public Prosecutions. It states, inter alia:
"To allay any concerns you have about an unfair advantage being given to the crown(sic) in having your client's evidence...being used against him, or in framing the prosecution case, I will ask the present Prosecutor to quarantine any evidence your client may give in the present proceedings. I will also ask for a different Prosecutor to be briefed in the prosecution of your client. The new Prosecutor will not be given access to the evidence he gives in the present trial. However, this undertaking is subject to s 128(7) of the Evidence Act which deals with protections about the falsity of any evidence he may give."
The Deputy Director then went on to say, in the context of the complaint made about Mr Rolfe's trial not proceeding first, "...I am nevertheless of the view that the above safeguards sufficiently protect your client's interests." Section 128(7) of the Act provides that a certificate issued under the section has the effect that his evidence on a relevant topic cannot be used against the person who is the beneficiary of the certificate, either directly or indirectly, "...However, this does not apply to a criminal proceeding in respect of the falsity of the evidence."
I take the reference to that subsection, in the context of the email sent by the learned Deputy Director, to be a reference to any falsity of evidence given by the witness. I must say, in passing, bearing in mind I am giving extemporare reasons, and I have not had the opportunity to go back to chambers and organise my thoughts in the manner in which one would have the opportunity, if one had the luxury of being able to publish a judgment in two or three weeks' time, that an interesting issue arises as to who determines (and how it is done) the falsity of the evidence of Mr Rolfe in the context of a history where Mr Rolfe, firstly, gave an account in March 2015 denying any knowledge of any relevant matter concerning the circumstances of the shooting of Mr Christian and then gave an entirely exculpatory account for himself in the interview on 23 March 2017, that is exhibit 14 on the voir dire, in respect of whom the Crown would seek to allege that the account that he did give to police constituting exhibit 14 on the voir dire was largely false, beyond the fact that he admitted being inside the clubhouse. The Crown will suggest that he, Mr Rolfe, was in fact one of the three balaclavaed men that Mr Christian has identified as being the principal participants in the circumstances, firstly, of his shooting, and then his subsequent beating in Grex Avenue outside the Minchinbury clubhouse of the Mount Druitt chapter of the Rebels Motorcycle Club. On the Crown case there will be much "falsity" if Rolfe gives evidence in accordance with Exhibit 14.
To go back to the Evidence Act just briefly, I note s 17 of the Act clearly permits a person, who may be described as an "associated defendant or accused", to give evidence in the trial of other accused persons. S 17(3) of the Act states that an associated defendant/accused is not compellable to give evidence for or against a "defendant or an accused" in a criminal proceeding, in this matter I point out the four accused here, "unless the associated defendant accused (Mr Rolfe) is being tried separately from the...accused". This is precisely the current situation.
It is worthwhile, also, citing s 38 of the Act because, if Mr Rolfe is required to give evidence, and gives evidence consistent with the account set out in the "statement", or interview conducted on 23 March 2007, the Crown would seek leave to have him declared "unfavourable" to the party calling him, that is the prosecution, in accordance with s 38(1) of the Act. I do not need to recite the detail of s 38 beyond noting that that would require leave of the Court, and it would permit, if leave was granted either generally or on terms, cross examination of the witness to proceed by the prosecution.
As part of the background history to this matter, I note that the Crown has indicated, both at the conclusion of the preliminary legal discussion before the empanelment of the current jury, and subsequently, that its case is that Mr Rolfe was one of the three balaclavaed men, notwithstanding the account he had given in the "statement", which comprises exhibit 14 on the voir dire.
I received submissions from Ms Evers, who I granted leave to appear in relation to this matter on behalf of her client who has a clear interest in the determination of this matter, particularly in the circumstances where her client has not yet been tried in relation to matters that would be the subject of his evidence. I have also received submissions from counsel representing the accused persons. I have taken all the submissions into account, and I have also taken into account the arguments put on behalf of the Crown by the learned Crown Prosecutor. It is worth noting, from all those submissions, that I received, at least from the accused, some mixed messages as to whether it was in the interests of justice for the certificate to be granted. Certainly, it was, as I understood the position of Mr Steel, representing Mr Saliba's interests, that a certificate should not be granted. He primarily relied upon matters arising from the decision of R v Collisson [2003] NSWCCA 212. The additional matters he raised were, to some extent, a corollary of the conclusion reached in Collisson, which I will come back to shortly. I have taken into account what he put, and also what was put by Ms Carroll within narrower compass.
Mr Pickin's position, on behalf of Mr Mujuevic, and I don't mean this unkindly of him, was somewhat equivocal. He recognised the tensions that existed in the consideration of s 128 of the Act, in the context of a foreshadowed application for leave pursuant to s 38 of the Act.
The Crown, naturally, submits that it is in the interests of justice for the certificate to be issued. It is clear that the only way in which Mr Rolfe can give evidence in the trial, given all the circumstances I have outlined earlier, is under the protection of a certificate. If he does not have the protection of the certificate, the undertaking by the learned Deputy Director of Public Prosecutions is entirely valueless. But, of course, I point out in relation to that undertaking that to my mind it does not bind the Commissioner of Police or those employed by the Commissioner of Police for the purposes of the investigation of this matter. Of course, it carries with it a caveat or a qualification to which I have already referred. The circumstances in this particular matter, given its history and particularly given the conflicting accounts given by Mr Rolfe, give rise to uncertainty as to what necessarily would constitute for the purposes of s 128 of the Act evidence that was relevantly "false".
To deal with the position of the Crown, the Crown particularly referred me to a Victorian decision which was concerned with the operation of s 38 and the circumstances in which a witness would be declared or regarded as "unfavourable". That decision DPP v Casey Garrett (a pseudonym) [2016] VSCA 31, reflects upon the terms of the section and the responsibility of a trial judge in determining whether evidence was "unfavourable" to the Crown. The decision in its terms, to my mind, does not state anything particularly significant
That is different from the position in New South Wales. In fact, the decision involves a citation of a number of authorities which are well known in New South Wales in relation to this matter. Perhaps on the basis that the Evidence Act (Vic) has only been operational in that State for a short number of years compared to the opportunity over a 21, 22 year period for the jurisprudence under the Act to develop in New South Wales.
Some of the decisions that are cited for the purposes of the reasoning of the Victorian Court of Appeal include the decision of Kanaan v The Queen [2006] NSWCCA 109, Kneebone (1999) 47 NSWLR 450 and SH (2011) 6 ACTLR 1, particularly at [35]. The authorities cited within that judgment and the judgment itself, without having heard further argument on the point from the parties at the bar table other than the Crown and Ms Evers, persuades me that the strength of authority, at least prima facie, militated in favour of a grant of the Crown's application to cross examine the witness if he gave evidence as anticipated.
The two issues that actually emerged for consideration in light of those observations were, firstly, the issue raised directly by Ms Evers as to whether the circumstances of a fair trial for Mr Rolfe could be satisfied, where the Crown in these proceedings had the opportunity to call him, examine him and cross examine him, as with the opportunity without leave of the parties to cross examine him, in respect of the subject matter of the allegations that would require him to face his trial at a later time. The case that most reflected upon the circumstances here in my view that was cited by Ms Evers, although all the cases to which you have referred me have been referred to in the course of discussion, was the decision of the High Court in Lee v The Queen [2015] HCA 20, particularly at [40] [47]. There the Court was considering a somewhat different situation to here in the sense that the Court was concerned with the use that can be made, or had been made, in the prosecution of the appellant at trial of evidence given by the appellant under compulsion before the New South Wales Crime Commission. Mr Lee appealed to the Court of Criminal Appeal on the basis that the conditions of a fair trial had been fundamentally compromised by the fact that the DPP had access to information made available through the Crime Commission inquiries, particularly arising out of evidence given by Mr Lee under the compulsive provisions of that Act. The High Court set aside the decision of the Court of Criminal Appeal concluding that the appeal did not fall to be decided by reference to whether there can be shown to be some practical unfairness in the conduct of the appellants' defence affecting the result of the trial. It was held that:
"This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants' trial was altered in a fundamental by the prosecution having the appellants' evidence before the commission in its possession."
Their Honours went on to observe, particularly at [46] [47] that it was:
"...a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which (NSWCC Act) sought to protect. Rather, (their) trial was one where the balance of power shifted to the prosecution."
Their Honours applied the dictum in the High Court judgment from 1987 of Wilde v The Queen (1988) 164 CLR 365, that where there was a fundamental flaw in the conduct of the trial according to law, the 'proviso' in the Criminal Appeal Act could not be applied and thus could not be applied in this particular circumstance.
The answer to that complaint; that is, that even though Mr Rolfe may be protected by the certificate, answers he may give in answer to questions asked of him either by the Crown or by the parties could be seized upon for further investigation, is said to lie in the undertaking which has been communicated to Ms Evers. I have some concerns whether the undertaking given by the Deputy Director of Public Prosecutions meets the concerns that have been raised by Ms Evers, particularly the concern of the use of evidence given by Mr Rolfe for further inquiries to be undertaken by the New South Wales Police Force. Certainly the undertaking given by the learned Deputy Director of Public Prosecutions is binding upon those that prosecute, insofar as the evidence itself is concerned, but the undertaking does not, in my view, restrict any further inquiries that may be undertaken by the Commissioner of Police leading to the production of further evidence additional to and/or separate from the evidence given by the accused.
I note in relation to this matter that there has been a constant complaint made to this Court, which I will be in due course communicating to the Chief Judge that notwithstanding directions that were given by the learned Chief Judge that evidence to be served upon the accused persons was to be served by particular dates, regularly, as I understand it, or at least additionally, a deal of material has been served upon the defence in, as I would understand it, either contravention or without regard to the directions that the Chief Judge gave to ensure this trial was able to commence in mid March 2017.
In fairness to the learned Crown Prosecutor, he came into the case at a late juncture, and in fairness to the learned Crown Prosecutor, there is little the learned Crown Prosecutor can do if additional material is provided to him by the New South Wales Police Force that may be relevant in his view to the proper conduct of the proceedings.
That having been observed, it would, however, seem to me, just for the moment assuming that the situation of this accused giving evidence, if I could use the expression "under compulsion" in the context of objecting to giving evidence and having the protection of a s 128 was analogous to evidence given under compulsion before the New South Wales Crime Commission, (there is an argument that the two situations are not necessarily the same) the matter would not be resolved in the manner I foreshadowed solely upon that particular basis. Whilst, as I said, there is a risk of further material being available to the prosecution, notwithstanding the undertaking by the learned Deputy Director, there has been, in my view, an honourable attempt, at least by the Director of Public Prosecutions to quarantine the direct effect, at least, of any evidence given by Mr Rolfe in these proceedings.
In my view, the matter ultimately is resolved, noting the matters I have already referred to, by what was the subject of decision of R v Collisson [2003] NSWCCA 212. Before I turn to Collisson, I should point out that in addition to the judgment cited by Mr Evers dealing with the risk for unfairness to a person such as Mr Rolfe, as discussed in the decision of Lee, there is the decision of Gedeon v The Queen [2013] NSWCCA 257. That is a judgment of the Full Bench of the Court of Criminal Appeal, but the primary judgment agreed to by all the judges sitting was given by the learned Bathurst CJ. The relevant passages with which I am concerned relate to his Honour's consideration and the Court's agreement with in relation to ground 6 of the appeal, particularly [284] [295]. In that case, application was made to cross examine Mark Standen by an accused person in the context of, firstly, Mr Standen at relevant times to the events giving rise to the prosecution, being a senior law enforcement officer in New South Wales, and secondly, Mr Standen, between the events giving rise to the charges that Mr Gedeon faced and the trial of Mr Gedeon, himself being charged with very serious criminal offences. Mr Standen, awaiting his trial, was sought to be cross examined about matters arising both within Australia and beyond Australia, which also raised the subtlety of the issue of whether there was protection in respect of offences that were criminal offences, but not in accordance with Australian law. It was held that the trial judge in the matter of Gedeon had properly exercised the power not to grant a certificate, and thus not require Mr Standen to give evidence, concluding that it was not "in the interests of justice" for Mr Standen to give evidence in relation to the subject matter of the trial in the context of he being a person awaiting trial in relation to other matters.
I note what his Honour said at [293], particularly referring to a judgment cited by Ms Evers of X7 v Australian Crime Commission [2013] HCA 29, particularly at [124], and the agreement of the High Court to that proposition in that judgment in the decision of Lee v New South Wales Crime Commission [2013] HCA 39. What those judgments, in conjunction with one another, including of course the 2014 High Court judgment in Lee, confirm in my mind is that in an appropriate case, the interests of justice will include potential unfairness to an accused person who is a witness in a related proceeding who gives evidence over objection, particularly if the risk of unfairness may involve the provision of the information to the prosecution or investigators for any future prosecution of the witness arising out of evidence given at the trial.
In Collisson, the Court of Criminal Appeal considered s 128, somewhat differently drafted, as there have been amendments to the section since the decision in 2003, where a trial judge concluded that it was not 'in the interests of justice' for a person to be granted a certificate under the Act. I note, in relation to the facts of Collisson, two things. One that the witness, who was not granted the certificate and thus not called to give evidence, was an "accomplice" of the accused, which is the situation of Mr Rolfe vis à vis the accused here. But also I note that, in respect of that particular witness, the Crown did not in fact have a proof of evidence. In other words it did not have a clear indication of what evidence the accomplice may give in the circumstances of the matter, which is different, it might be said, to the circumstances here. Although the prosecution here has not formally 'proofed' the witness. That having been said, it is worthwhile noting, by reference to the judgment I gave on 28 March 2017, that the interview given by Mr Rolfe on 23 March contained an account, as I have earlier indicated, that was "exculpatory", summarised, as best as I could summarise in the circumstances, at p 4 and 5 of my earlier judgment. The initial interviews given by Mr Rolfe two years before contained an account which I summarised at p 3 of the earlier judgment, providing a totally different picture to the one subsequently given by Mr Rolfe when he was interviewed on 23 March 2017.
I have to note, in passing, Ms Evers' complaint as to the fact that the interview on 23 March 2017 arose because, on her submission, her client had been improperly interviewed at an earlier time, I now understand that to be 3 March, and the interview on 23 March 2017 was in effect an attempt to "formalise" as a "statement" from Mr Rolfe his version of events. Given that the interview with Mr Rolfe on 3 March 2017 had come to Ms Evers' notice, she being not present when her client was interviewed, in the form of a statement from a police officer setting out in hearsay form what was alleged to have been said by Mr Rolfe.
In the decision of Collisson, the Judge, at first instance, had concluded these matters. A witness proposed to be called by the Crown was "an accomplice" who was "inherently suspect". He went on to say in the trial, "Secondly, this is even more so where the accomplice, although charged, has not been finally dealt with". This is the situation here. He cited authority going back to R v Booth [1982] NSWLR 847, (particularly at 850) concerning the practice in calling an accomplice usually involves the accomplice being dealt with by the Courts for any criminal activity the subject matter of the trial before that person is called to give evidence. The desirability of that practice is self-evident. I note the observations of the trial judge, set out at [14] of the judgment of the Court of Criminal Appeal, and also the conclusions of the trial judge set out at [16] of the judgment of the Court of Criminal Appeal.
The appellant had argued that his Honour had erred in determining that it was not in the interests of justice, pursuant to s 128(5)(c) of the then Evidence Act. The arguments of the appellant being set out at [26] of the judgment of the Court of Criminal Appeal. The Court of Criminal Appeal said, amongst other things, "As I have observed, it was not contested that his Honour was correct in stating 'well established principle' that the evidence of the accomplice was 'inherently suspect'". Equally, it was pointed out that the relevant witness was a witness who fell within the class or category of witnesses referred to in s 165 of the Act, whose evidence may be unreliable, and in respect of which a warning to the jury, if requested, may be necessary, pursuant to s 165(2). His Honour went on to analyse what might be anticipated to be the evidence of the witness. He dealt with inter alia, at [34], the possible 'remedy' of an adjournment. Of course, here there is no issue of this trial being adjourned to enable Mr Rolfe to be dealt with.
The considerations that are relevant to a determination of whether it is in the interests of justice to issue a certificate are wide ranging. For example, if one has regard to the learned author Stephen Odgers SC, and his well regarded text, Uniform Evidence Law, reading as I am from the 11th Edition, mindful of the fact that there is a 12th edition, particularly at p 768 769 of that Edition, there are, he suggests, a wide ranging number of factors. It cannot be said the categories of "factors" are closed that would be relevant to the consideration of whether the interests of justice were met such as to warrant the issue of a certificate. I am particularly mindful, of course, of key matters, the importance of the evidence in the proceeding, for example, but I am also mindful of reference that he makes to "the likelihood that the evidence will be unreliable, even if a certificate is given", citing Collisson and a decision of the Court of Appeal, Turco v HP Mercantile Pty Ltd (No 2) [2009] NSWCA 209, the character offending, the character of the proceeding, who the party is seeking to adduce to evidence, the resulting unfairness to a party, including of course the relevant witness (the matter urged on behalf of Mr Rolfe), the likely effects of requiring the giving evidence, the means available to limit its publication, et cetera et cetera.
There are, of course, in the context of considering the interests of justice, a large number of interests to be considered. There are the interests of the Crown, and the Crown represents the community. There are the interests of the witness, principally urged, of course, by Ms Evers, and of course, there are the interests of the individual accused. The interests of the Crown dictate the granting of the certificate to enable it to rely upon only part of his account given on 23 March 2017, that is the "statement" that is exhibit 14 on the voir dire, to establish on his own admission that he was relevantly within the clubhouse at the time that Mr Christian was set upon. The Crown relies upon that, not only to partially implicate Mr Rolfe by his presence, but also to seek to rely upon Mr Rolfe's account of relevant events to partially support the account of Mr Christian, that is that he was within the clubhouse at the time that he first was assaulted. For the Crown, in some respects, this is an important matter, depending upon the assessment of the reliability of Mr Rolfe, because, as has been pointed out in the course of the conduct of the trial, the matter very much at the heart of the conduct of the case on the part of Mr Mujuevic is that there is in fact no "physical evidence", as I will understand it, of the assault of Mr Christian actually occurring within the confines of the clubhouse, as opposed to outside the clubhouse.
The Crown would rely upon Mr Rolfe, by his presence by implication, to be seen to be part of a joint criminal enterprise. It is in the interests of the Crown, it is said, then to put to him that he in fact was part of a joint criminal enterprise beyond the account that he gave on 23 March 2007. That is, he was actually participating in a joint criminal enterprise as one of the three balaclavaed men in circumstances where, amongst other things, this was not clearly understood by Mr Rolfe's legal representatives up until shortly before an order for a separate trial was made. This is in circumstances where the Crown does not reasonably expect him to agree that he was part of a joint criminal enterprise, and was one of the three balaclavaed men. In other words, the Crown would wish to put that proposition to him in circumstances where it has no confidence, nor any understanding, that Mr Rolfe will agree with that proposition.
Insofar as Mr Rolfe's interests are concerned, it is not in his interests that he would be required to provide information that may lead to further investigations outside of the control of the Director of Public Prosecutions, which may, notwithstanding the undertaking given to him by the learned Deputy Director of Public Prosecutions, still be relied upon for the prosecution of him. Even if it is not material that directly relates to the evidence that he would give in this trial.
It is in the interests of each of the accused for him not to give evidence because the calling of Mr Rolfe to give evidence in the trial, as the Crown contemplates, gives the Crown the opportunity in circumstances it would not have had if Mr Rolfe been required to be tried with the four co-accused, to give direct evidence admissible, not just 'against' Mr Rolfe, but admissible against all the accused, supporting part of the version that I have already referred to of Mr Christian in the absence of physical evidence of Mr Christian being assaulted within the clubhouse.
One of the matters that would arise from determining that a certificate would be issued in the interests of justice would be that the issue of the certificate would provide the opportunity for the Crown, in cross examination, if leave were granted that the witness be cross examined pursuant to s 38 of the Act, to put to the witness, notwithstanding the objection of the witness to giving evidence in the first place, a version of events that could be seen to implicate the co accused, which, as I said, the Crown expects that the witness will not adopt. In fact it has no reasonable basis for concluding he would adopt that version of events.
On the issue of his reliability, the facts are that when first arrested in March 2015, and when he took the opportunity to give an interview to police in circumstances where he knew he had the right to silence, he gave an account, as I have already referred to and I have summarised in a previous judgment, that was inconsistent with his physical presence at the shooting, but also inconsistent with physical evidence known to the police of which the accused, Mr Rolfe, could not have known was available to them at that time. When a police take in a suspect for questioning, they do not start off an interview by telling the suspect all that they know about the matter to give the particular suspect the opportunity to adjust his version to fit in with what the police investigating the matter may understand the situation to be.
Two years later when Mr Rolfe volunteered a version on 3 March 2017 in the absence of his counsel, to which I have already referred, confirming that account on 23 March, that is 20 days later, in the midst of the trial that I was conducting or at least the pre trial issues I was conducting, Mr Rolfe, gave an account which was exculpatory, but which was made by him with some considerable knowledge of the physical evidence that was available in the trial, particularly a matter greatly relied upon by the Crown to warrant, it says, the opportunity to submit he was the balaclavaed third man. That is evidence of the CCTV footage from various places within the environs of the clubhouse and Grex Avenue, that place a car over which Mr Rolfe had control in the vicinity of the clubhouse before the attack upon Mr Christian and leaving that area at the time of or shortly after the timing of the attack upon Mr Christian and which limits the number of people that could have been at the Clubhouse.
In my view the calling of the witnesses in the circumstances I have outlined, in circumstances where the Crown has a version given by him with the full benefit of understanding one would have thought the Crown case against him in circumstances where the Crown itself does not rely upon the truthfulness in the entirety of the version given by the witness is an opportunity for the witness to have what might colloquially be called a free kick or a free hit primarily at the expense of the accused on trial at the present time and particularly the accused, Mr Mujuevic, Mr Saliba and Mr Rymer. Mr Cusens is not as, if I might use the expression, "directly implicated" in the context of the version that would be anticipated for Mr Rolfe.
The circumstances in which Mr Rolfe comes forward to, in my view, self evidently attempt to exculpate himself in circumstances as I have pointed out that the Crown does not accept to be the truth, or the whole truth, creates an unacceptable unfairness to the accused. A relevant matter, in my view, to the issue of whether it is 'in the interests of justice' for such a person to come forward to give evidence.
Mr Rolfe is not on trial when he gives evidence. In the context of the certificate protecting him from the use of the evidence he gives at any future proceedings, just citing the effect of a certificate under s 128, the current situation provides him with an opportunity to give evidence with absolutely nothing to lose so far as his own interests are concerned in that narrow sense.
It should be pointed out, of course, that one of the policy reasons for the existence of s 128 is quite undoubtedly that people will, in circumstances where they otherwise might not be required to give evidence in the fear that they may incriminate themselves, tell the truth. The reality is the Crown itself understands that when he comes forward he is a witness who will not tell the whole truth, as the Crown would see it. But will be a witness upon whom the Crown would seek to rely in part but not in whole.
It is to be pointed out, of course, that in the context of the use of the expression "inherently unreliable", this witness does not come forward simply as being "inherently unreliable" on the basis solely that he is an accomplice of, or an alleged accomplice, of the three accused. As I have pointed out, on the Crown's own standards, in the context of what the Crown says is its justification for putting to him in cross examination if granted leave to do so that he was one of the balaclavaed men, he is by reference to those matters referred to by the Crown, "objectively unreliable" in material respects. He is objectively unreliable in material respects that in my view would not particularly aid the Crown case beyond what it can otherwise establish from other sources. Particularly the evidence from the closed circuit television and the previous contact that Mr Rolfe may have had with a number of the co accused.
In my view, the self evident unreliability of the witness, if permitted to give evidence under the protection of a certificate, bearing in mind on the Crown case he was a close associate of one or other or all of the accused, is a matter
that would be infectious to the circumstances of a fair trial for each of the accused. It is to be borne in mind in that regard that the hallmarks or reasons ascribed to identify his unreliability that lie in the matters raised in his interview of 23 March 2017 were, themselves, reasons for separating him from the co accused in the first instance. In that regard, as I earlier pointed out by reference to the judgment I gave on 28 March, Mr Rolfe, in fairness to him, in order to explain substantially inconsistencies between his latest account and the first accounts he gave to the police would, of necessity, in order only to protect his own credibility, give the reasons for failing to fully disclose his knowledge of relevant matters as he would suggest they were understood by him as explained in his version to police on 23 March 2017 that justified separating him from the other accused.
Thus, it is in these circumstances, taking all those matters into account, that I have concluded that in this particular instance it is not 'in the interests of justice' that a certificate be issued to Mr Rolfe. I do not propose to issue a certificate for him to give evidence in these proceedings.
[2]
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Decision last updated: 15 August 2017
Application for a certificate under s 128 of the Evidence Act 1995 refused. The judge concluded at [27] that it was not in the interests of justice for Rolfe to give evidence in the proceedings.