By KIERAN FINNANE
UPDATE 23 August 2021, 9.21am.
High Court Justice Jacqueline Gleeson has this morning ordered a stay – a halt in proceedings – in the trial of Zachary Rolfe until 4pm, September 10.
Empanelment of the jury was scheduled to start in the Supreme Court in Darwin this morning at 10am.
On September 10, the High Court will hear the prosecution’s application for special leave to appeal the recent decision by the Full Court of the Northern Territory about legal questions in this matter.
As reported below, the key concern of the prosecution is with the police immunity defence provided by section 148B of the NT”s Police Administration Act 1978.
At Friday’s hearing of the stay application Crown prosecutor Philip Strickland SC went so far as to say that if this defence were allowed there would be “a real issue as to whether a trial ought to proceed at all” (though this would be a decision not for him, but for the Director of Public Prosecutions).
Justice Gleeson, photo High Court of Australia’s website.
This is because, he said, under s 148B the only matter the accused would need to raise would be that at the time of the alleged unlawful second and third shots – which on the forensic evidence are the shots that killed Kumanjayi Walker – he was exercising a policing power or function in “good faith”, that is, honestly.
The challenge for the Crown would be to prove beyond reasonable doubt that he did not honestly believe, in that moment, that he was acting as a police officer.
Whether or not the conduct was reasonable would not come into it, whereas the defences available to him under the Criminal Code, in sections 48BD and 208E, “impose notions of reasonableness”.
Allowing the accused to take advantage of the “good faith” defence would mean that the Criminal Code defences would have “very little, if any role to play”, according to Mr Strickland.
“We say that the reasoning of the Full Court really eviscerates the protection that 48BD and 208E provide to the community about police officers,” he said, “with the concept of reasonableness being an essential part of the limitations on the use of force.”
In other words, the Crown’s view is that, in upholding the role for the good faith defence in this murder trial, the Full Court’s ruling undermines the Criminal Code‘s protections for the public from excessive use of force by police, as the Criminal Code requires that the use of of force has to be reasonable in the circumstances.
Mr Rolfe was represented at the High Court by Brett Walker SC.
He argued that the legislature (in this case, the NT Parliament) accepted the possibility of acquittals in a trial during which “there has been a significant error of law”. So it wouldn’t be a case of “someone getting away with murder” – “to use inappropriate language as has been used against us” – but rather “a process of a trial according to law, during the course of which there are some rulings, some of which may be right, some of which may be wrong”.
On the Crown’s point about the Full Court ruling’s “evisceration” or undermining of the Criminal Code defences, Mr Walker said there is “no jarring inconsistency” in the general provisions of the Criminal Code, available to everyone, “yielding to” the specific provisions for law enforcement officers in the Police Administration Act.
Mr Walker said that “on its face” the good faith defence of s 148B is “without serious possibility of contrary argument” – in other words, very difficult to disprove beyond reasonable doubt, as it’s about what was in the mind of the accused.
Nonetheless Mr Walker said there is a “very considerable … overlap” between honesty or good faith and reasonableness: “The more unreasonable conduct is, the more credible or plausible it will be that there is a lack of good faith, or to put it another way, the more difficult it may be to demonstrate good faith.”
If it were proper to do so on the evidence, argued Mr Walker, it would “impossible” to understand if the Crown did not cast doubt on the reasonableness of the accused’s conduct in order to eliminate or exclude the good faith defence.
All of this will be canvassed again and no doubt in greater detail during the hearing of the application for special leave on September 10, but it would have been “inutile” (pointless) to pursue that application, said Mr Strickland, if the trial were to proceed, as by September 10 the evidence would have been heard and framed by the permitted defences.
Justice Gleeson’s decision to stay the trial thus gives purpose to the Crown’s course of action.
Meanwhile, Acting Justice Dean Mildren in the NT Supreme court has adjourned the trial until Monday September 13, at 9am, with Mr Rolfe excused from appearing if he is legally represented.
Last updated 23 August, 2.11pm (minor edits).
Earlier article, headlined ‘Rolfe trial: Crown battles on at the High Court’, published 20 August 2021:-
An application to stay the trial of Zachary Rolfe, the NT police officer accused of murdering Kumanjayi Walker, has been refused by trial judge Acting Justice Dean Mildren.
The application was made by the Crown after applying to the High Court for special leave to appeal a recent decision in the matter by the NT Supreme Court’s Full Court of five justices.
The Full Court considered a range of matters concerning possible defences in the case, but what concerns the Crown in particular is their decision to allow the accused to rely on the immunity defence provided under s 148B of the Police Administration Act 1978.
That section was originally introduced in 2005, but confined to protecting officers from civilc liability. The extension of immunity to criminal liability was only legislated in 2018.
A defence under s 148B would let the jury, having heard all the evidence, consider whether there was a reasonable possibility that Mr Rolfe, when he shot Mr Walker for the second and third time (the alleged unlawful and fatal shots), was acting “in good faith” in the course of his duties as a police officer.
The Crown has argued that the only defence available to Mr Rolfe is self-defence under the Criminal Code because, in firing the second and third shots, he was no longer attempting to affect an arrest – a policing function – but was rather defending himself and / or his police partner.
In the stay application hearing yesterday, Philip Strickland SC for the Crown (left) argued that if the trial proceeded, the jury could reach a decision to acquit on the basis of a defence that “on our case, the accused is not entitled to as a matter of law”.
And the Crown could not appeal against that acquittal, even if it were based on an erroneous ruling. An accused can appeal their conviction, but there is no right to appeal an acquittal.
Mr Strickland argued that exceptional circumstances exist, a requirement for the Crown’s special leave application. There was the reference of legal questions to the Full Court, for one, and there is also “a very powerful public interest in the present case … It’s of great interest to the accused and his family, police officers, the community in Yuendumu, the wider public in the Northern Territory”.
David Edwardson QC for the accused described the Crown’s chances of getting special leave on the basis that there was some error in the Full Court’s decision as “quite frankly nonsense”, and argued against there being a public interest in their appeal, as only South Australia has “a comparable immunity provision [for police officers] that deals with criminal liability”.
Justice Mildren rated the Crown’s chances of being granted special leave by the High Court as “limited”:
“It’s not evident to me that the application has other than weak prospects of success especially as this is an application for leave to appeal in a criminal proceeding against an interlocutory ruling in circumstances where the legislation does not encourage or contemplate such a process.”
Taking into account the “balance of convenience” – including impact on the accused, the community of Yuendumu where the killing took place, all witnesses, the court itself and the many organisational difficulties in rescheduling the trial, not least the availability of counsel – he denied the stay application:
“Granting a stay would disrupt the trial which has already been disrupted by the COVID crisis. It’s important that criminal trials are dealt with expeditiously and in accordance with the policy of the Criminal Code. The balance of convenience lies with the trial proceeding and accordingly the application for a stay is refused.”
Undeterred, Mr Strickland immediately advised that he would apply to the High Court for a stay, and seek a hearing on the matter today (Friday) or Monday morning.
So, while in principle the trial should proceed on Monday – or possibly as late as Tuesday if the High Court hears the application on Monday morning – if the Crown succeeds at the High Court, there will be further delays.
Photo at top: High Court of Australia in session. Photo from their website.
Last updated 23 August 2021, 9.09am.