By KIERAN FINNANE
The multiple delays in the trial of Zachary Rolfe have just hit another snag: the retirement this week of the trial judge, Acting Justice Dean Mildren.
The Rolfe trial would have been the last case for this very experienced trial judge; that’s now not to be.
On Friday the High Court of Australia decided that its Full Bench of seven justices will consider whether to grant special leave to the Crown to appeal a decision in the Rolfe matter made by the Full Bench of the NT Supreme Court.
The likely dates for the High Court hearing are 2-3 November. Meanwhile, the stay ordered to the trial of Mr Rolfe remains in effect.
Justice Mildren (left) was on the bench in Darwin this morning. Counsel for both defence and prosecution asked that he, rather than postpone the trial indefinitely, set new dates for February next year, even if they would ultimately need to be reviewed.
That was when Justice Mildren told them that he’s retiring and a new trial judge will have to be selected.
This will be in the hands of NT Chief Justice Michael Grant.
Mr Rolfe’s bail has been extended to 5 November when there’ll be a directions hearing about how to proceed.
A decision about who will be the trial judge will no doubt be made before then, and new dates possibly set.
Meanwhile, three justices of the High Court, including Chief Justice Susan Kiefel, have heard initial argument from both prosecution and defence counsel about why special leave should or should not be granted.
It centres on the NT’s Police Administration Act, in particular its section 148B, which provides immunity from civil and criminal prosecution to persons if they were carrying out their functions under this Act “in good faith”.
Under that section no test is required that the conduct also be reasonable in the circumstances as the person perceived them.
Mr Rolfe, a police officer, is accused of the murder of 19-year-old Kumanjayi Walker in Yuendumu on 9 December 2019.
There is no contest that he shot Mr Walker, three times.
The first shot has been accepted as a lawful response to Mr Walker having stabbed Mr Rolfe with scissors, but the second and third shots, which were also the fatal shots, are alleged to be unlawful – an excessive use of force.
Mr Rolfe is pleading not guilty to the charge, on the grounds that shooting Mr Walker was justified.
One of the defences available to him, according to the NT Full Bench, is that offered by section 148B, meaning it would be open to a jury to consider whether the shooting was done in good faith as he carried out his functions or duties under the Act, and if they were so persuaded beyond reasonable doubt, they should acquit him.
If that’s correct, Crown prosecutor Philip Strickland Strickland (right) told the High Court justices, “the respondent [Mr Rolfe] may be acquitted of murder without the jury considering whether the act of firing shots two and three were reasonable in the circumstances, and that would be a significant departure from the criminal law.”
He argued that s148B should rather be “interpreted strictly … to confine the scope of the immunity, so as not to derogate [detract] from the rights of citizens who are subject to what would otherwise be criminal acts by police officers”.
Core policing functions set out in s5(2) of the Act “are very broadly expressed”, said Mr Strickland, and should be understood as being given to the police collectively rather than to individual officers.
They are distinct from the specific powers given to officers, such as the power of arrest, which are set out in other parts of the Act and have various conditions and constraints imposed upon them.
To understand the use of word “function” in s148B, the court needs to look at the legislative history of the section, argued Mr Strickland.
The original section did not use that word, it did not speak of “persons” but rather “members” and its protection was from civil liability only.
Its amendment, which was passed in 2016 and came into force in 2018, coincided with the introduction of a new division of the Act referring to the specific functions performed by persons such as doctors and nurses taking a blood sample from a person.
Those are the types of functions that s148B protections were intended to cover, not core policing functions, contended Mr Strickland.
“In short, the legislative history of 148B does not indicate that Parliament had any intention to confer the extremely wide protection on police for both criminal and civil liability held by the Full Bench.”
For Mr Rolfe, Brett Walker SC rejected Mr Strickland’s take on the history of the amended s148B as well as the distinction he made between the core functions of the police force as a collective and the specific powers of its individual members.
Some of the core functions, such as the requirement to set a good example, apply to the collective, said Mr Walker, but “most of them will have to do with the exigencies facing individual members, maybe in groups of more than one but nonetheless individual members, from time to time in the execution of their duties” – the “protection of life” being “a headline example”.
He concluded by saying that the possibility of an acquittal of the accused on the basis of an error in law should not be a reason that the justices entertain for granting special leave for the Crown’s appeal, and therefore the trial should be allowed to proceed.
Mr Strickland replied, emphasising the particular circumstances of this case, “the murder of an Indigenous man by the police in a remote community”.
An “incorrect basis” for acquittal could be “cured” by the High Court, and given that the trial has already been interrupted, the Court should hear the appeal.
Photo at top: In the High Court, photo from their website.