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Rolfe trial delay, questions of law detailed

The trial of Zachary Rolfe, the police officer accused of murdering Kumanjayi Walker in Yuendumu in December 2019, has been adjourned to a date to be fixed.

Legal argument, in a hearing known as a voir dire, has been going on before the trial judge, Acting Justice Dean Mildren, in the Supreme Court in Darwin this week, behind closed doors.

Arising from this hearing, a matter of law has been referred to the Full Court for determination, at a time to be advised later today.

The trial proper, starting with jury selection, was due to begin in Darwin next Monday, July 26.

However, senior counsel for the prosecution – Sophie Callan SC and Philip Strickland SC – are from Sydney. With the concerning Covid outbreak there and no sign of it yet ameliorating, they could not come into the NT without quarantining for 14 days.

During the voir dire, the Sydney-based counsel have appeared by WebEx, but it is understood this could not be allowed for a jury trial, when all parties must appear in person.

UPDATE, 22 July 201, 4.55pm.

Acting Chief Justice Southwood indicated this afternoon that the Full Court would be hearing three questions referred to it in relation to the matter of R v Zachary Rolfe.

These questions are:

Question 1:
Does s 148B of the Police Administration Act 1978 apply to acts or omissions done or made, or purported to have been done or made, by police officers only if the police officer is acting in the capacity of a public official under an authorising law?

Question 2:
Having regard to s 148A of the Police Administration Act 1978, and based upon the assumed facts, is a police officer who acts or purportedly acts in the exercise of a power or performance of a function under the Act acting in the capacity of a public official under an authorising law?

Question 3:
Based upon the assumed facts, at the time the accused fired the second and third shots resulting in the deceased’s death, was he acting in the exercise or purported exercise of a power or performance or purported performance of a function under the Police Administration Act 1978, such that s 148B of the Act arises for the jury’s consideration?

The Full Court will convene at 10am next Wednesday, 28 July to consider the questions.

UPDATE, 28 July 2021, 12.56pm:

A fourth question has now also been referred to the Full Court by Acting Justice Mildren, media were advised yesterday. That question is:

The accused, Zachary Rolfe, is charged with murder contrary to s 156 of the Criminal Code. In the alternative, the accused is charged with reckless or negligent conduct causing death, contrary to s 160 of the Criminal Code. In the further alternative, the accused is charged with engaging in a violent act which caused the death of the deceased contrary to s 161A(1) of the Criminal Code. In these circumstances, is a defence under s 148B of the Police Administration Act 1978 potentially open in light of s 208E of the Criminal Code, and in circumstances where the accused has raised the defence provided by s 43BD of the Criminal Code’?

 

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