By KIERAN FINNANE
UPDATE 17 August 2021, 5.03pm: In the latest development, the Crown is moving to make an application to the High Court for special leave to appeal the recent decision of the Full Court, reported on here.
They are seeking an expedited hearing and meanwhile are applying for a stay of Mr Rolfe’s jury trial pending the outcome of the application to the High Court.
The stay application will be heard by trial judge Acting Justice Dean Mildren in the Supreme Court in Darwin this Thursday afternoon.
In another setback, the trial of Northern Territory police officer Zachary Rolfe for the killing of Kumanjayi Walker, has been deferred. Earlier today, the delay was to be just one day, to allow the Crown “to consider its position” following the Full Court decision handed down last Friday.
However, a snap lockdown, imposed from midday today in Darwin, Palmerston and Katherine after a positive Covid-19 case was identified in Katherine, has now pushed it back further, until Monday, 23 August.
Meanwhile, in its decision the Full Court did not accept the Crown submission that Mr Rolfe’s only possible defence was self-defence under s 43BD of the Criminal Code, and that the defences providing possible immunity to him as a police officer were not open for the jury’s consideration.
Philip Strickland SC for the Crown had put to the court that Mr Rolfe was no longer exercising a policing function or power under the Police Administration Act 1978 (NT) when he fired the alleged unlawful second and third shots.
He argued that was because the serious harm or death arising from those shots, essentially fired at point blank range, would have been incompatible with Kumanjayi Walker’s arrest – the purpose of an arrest being to bring an individual before the court.
The justices prefaced their decision on Friday by saying that the assumed facts and annexures (the latter suppressed from publication) “do not constitute concluded facts … [nor] admissions … [nor] “agreed facts”.
Rather they contain “some facts not in dispute, some facts the Crown will seek to prove at trial, and some facts the defence will press.”
In view of the assumed facts, the Full Court decided that a jury could potentially find that the accused, in firing the second and third shots, was performing a policing function, “preventing the commission of an offence by the deceased”, “and/ or the function of protecting life” (his police partner’s), and/ or exercising a power under the Act – “the power to arrest the deceased”.
Whether or not the jury finds that Mr Rolfe was indeed exercising these powers or performing these functions will be for them “to determine after they have heard all of the evidence,” said the court.
Likewise, the separate question of whether it was “reasonably possible” he was acting “in good faith” – a requirement of the defence under s 148B – will be a question of fact for the jury to determine.
After all the evidence is heard, the trial judge, Acting Justice Dean Mildren, will instruct the jury on “the matters they need to be satisfied of” to make these determinations.
The Full Court also found that a defence under s 148B of the Police Administration Act 1978 (NT) is not limited by s 208E of the Criminal Code.
That section provides for immunity from criminal responsibility for law enforcement officers if the relevant conduct is “reasonable in the circumstances for performing that duty”.
So, all three defences advanced by Mr Rolfe’s legal team – s 148b, “the so-called good faith defence”, s 208E, “the reasonable performance of duty defence”, and self-defence under s 43BD – are potentially available to him.
Mr Rolfe 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.
Photo at top: Empty jury box in the Supreme Court in Alice Springs. It will of course remain empty for Mr Rolfe’s trial which will be held in Darwin, but the proceedings will be beamed into the court here, which will be open to the public. Photo from our archive.