By KIERAN FINNANE
The High Court will deliver its decision on a legal matter in the murder trial of police officer Zachary Rolfe next Wednesday, 10 November.
Mr Rolfe is accused of the murder of 19-year-old Kumanjayi Walker in Yuendumu on 9 November 2019. He is pleading not guilty.
The High Court’s decision will concern whether or not to grant special leave for an appeal by the Crown Prosecutor in the Rolfe trial of a decision by the Full Bench of the NT Supreme Court.
That decision held that the so-called “good faith” defence under the NT’s Police Administration Act is available to Mr Rolfe.
This defence, laid out in the amended section 148B (an amendment which only came into force in 2018), provides immunity from civil and criminal prosecution to persons carrying out their functions under this Act, if they were doing so “in good faith”.
No test is required for this defence that the conduct also be reasonable in the circumstances as the person perceived them, unlike the defences to murder (self-defence and/or defence of another) available to ordinary citizens, provided in other legislation.
Pending its decision, the High Court ordered a stay in Mr Rolfe’s trial which remains in place.
The Supreme Court has nonetheless listed for trial for three weeks, commencing on 7 February next year, although the High Court decision could have a bearing on whether and when the matter can run.
In a pre-trial hearing this morning, Chief Justice Michael Grant (left, replacing retired trial judge Dean Mildren) also heard from Philip Strickland SC for the Crown that he intends, very shortly after the High Court delivers its decision, to serve a notice under s 97 of the Evidence Act.
This section concerns the admissibility of “tendency evidence”, which goes to “the character, reputation or conduct of a person, or a tendency that a person has or had”.
David Edwardson QC for the defence advised the court that “we certainly will be arguing about the admissibility of the foreshadowed s 97 application”. The question was whether that argument could wait for the start of the trial next February.
“That will certainly be determined in advance,” responded Chief Justice Grant. “I am not going to have that tendency argument on the first day of the trial.”
He set a time on 19 November to hear that argument, which, as well as the content of the notice, will be the subject of a suppression order until the admissibility of the evidence has been determined.
Chief Justice Grant also raised with counsel potential breaches of existing suppression orders in the Rolfe matter as well as of the sub judice doctrine by the Daily Mail website in the UK, and the Channel 7 Spotlight program, “posted on various platforms which can be accessed from the Northern Territory”.
Mr Strickland, although he had not yet fully considered that material, said that if it had not been removed by 19 November, he anticipated asking the court for “a take-down order”.
Mr Edwardson said the defence would “support that wholeheartedly”.
The Chief Justice pointed to the “problematic” reach of such an order, particularly in relation to the Daily Mail website, as well as a question about contempt proceedings: by whom would they be “properly instituted”? Would it be the DPP?
He asked Mr Strickland to give that question some attention.
Last updated 10 November 2021, 9.04pm.