By KIERAN FINNANE
Prosecuting counsel in the trial of Zachary Rolfe, Philip Strickland SC, will arrive from Covid-afflicted Sydney to go into quarantine this week at Howard Springs, allowing the trial, postponed from July 26, to go ahead on 18 August.
His co-counsel, Sophie Callan SC, is not available then and will be replaced by another barrister.
Mr Rolfe, a Northern Territory police officer, is accused of murdering Kumanjayi Walker in the remote community of Yuendumu, 293km north-west of Alice Springs, in the evening of 9 November 2019.
He is alternatively charged with reckless or negligent conduct causing death, or with engaging in a violent act which caused the death. He has indicated to the court he will plead not guilty to the charges.
The Full Court met last Wednesday to hear legal argument about Mr Rolfe’s proposed defences.
There are three, as outlined by his defence counsel David Edwardson QC 9(left): “the so-called good faith defence” provided by section 148B of the Police Administration Act; “the reasonable performance of duty defence”, under s 208E of the Criminal Code (specific to law enforcement officers); and, self-defence under s 43BD of the Criminal Code Act.
The justices were asked to consider, in relation to s 148B, in what capacity Mr Rolfe was acting when he discharged the second and third shots – the fatal shots fired 2.6 seconds after the first shot, and at no more than a 5cm distance from Mr Walker. These are the shots which the Crown alleges were unlawful.
The Crown argument, in relation to the applicability of s 148B, is that at this point Mr Rolfe was no longer affecting an arrest – a policing function – but was acting in self-defence as he saw it. This would mean that his actions in firing the second and third shots were no longer protected by s 148B, which applies to a person acting in good faith “in the exercise of a power or performance of a function” under the Police Administration Act.
Mr Strickland put it like this: “He’s not doing it [shooting Mr Walker] in order to detain him to take him before court. I mean, that’s what one is required to do when one arrests a suspect. He’s doing it to cause him such a degree of injury, such a significant degree of injury that the attack [Mr Walker’s violent resistance] will cease. That’s the purpose.
“That’s the exercise. So it’s not exercising a power for the purposes of arrest.”
This argument raises the question of how the Act defines policing powers or functions (s 5) and which are “conferred on members and [which are] conferred on the police force as an entity”, said Mr Strickland.
Mr Edwardson saw the Crown construction of events as “artificial”.
He argued that from the moment Mr Rolfe told Mr Walker to put his hands behind his back through to him being handcuffed (as he was after being shot three times) was “one continuous transaction to effect his arrest and, with respect, we say to say otherwise is absurd”.
He also argued that Mr Walker’s stabbing of Mr Rolfe before Mr Rolfe shot him as “the intervening factor that strongly points towards the exercise of the lawful power of arrest”.
Acting Chief Justice Stephen Southwood raised “a difficulty .. in breaking up the fired shots” and its premise of “a specific intention”.
Mr Strickland pointed to the ballistic evidence that the second and third shots were fired “really at point blank range” and, combined with other evidence, the Crown case will indeed be “that the intention in firing those second and third shots was either to kill or cause grievous bodily harm. That’s the basis of the murder charge, obviously.”
“And you say that’s incompatible with an intention to arrest?” he was asked.
Mr Strickland (right) accepted, however, Mr Edwardson’s argument that Mr Rolfe’s evidence on this point of intent will be relevant as to whether s 148B applies.
“If he gives evidence,” he added.
He also accepted that his submissions were made on the basis of the assumed facts (a tightly constrained document) and other material before the court, including the body-worn video evidence, but that “the whole universe of facts relevant to 148B has yet to be established”.
Sophie Callan SC for the Crown also accepted that “the extent to which any or all three of the statutory defences are engaged, in the sense of being left to the jury, will depend on the evidence at trial and that will be a matter for the trial judge at an appropriate time.”
The crucial point of disagreement between the parties, Mr Edwardson reiterated, remained around whether or not that, when the shots were fired, Mr Rolfe was exercising a power of arrest.
If the jury found that at this time he was not exercising in good faith a police power or function, they would move onto consider the Criminal Code defences – the reasonable performance of duty (s 208E), and self-defence (s 43BD), said Mr Edwardson, acknowledging the “different notions and different considerations” in proving these defences.
As he had explained in outlining the defences at the start, s 208E, which is specific to law enforcement officers, only requires that the officer is acting “in the course of his duty as opposed to exercising a power or performing a function”.
“That is a matter to be decided on the facts,” he said.
Both it and s 43BD require that the accused believes the conduct is necessary – a subjective test – but also an assessment of reasonableness in the circumstances as the accused perceived them – an objective test.
The Full Court are expected to deliver their reasons for decision within a fortnight from the sitting, ahead of the trial’s commencement.
Photos of counsel are from our archives, September 2020 (the committal hearing).