By KIERAN FINNANE
A decision by the High Court today means that police officer Zachary Rolfe will not be able to rely on the so-called “good faith” defence in his trial for the murder of Kumanjayi Walker in Yuendumu on November 9, 2019. He is pleading not guilty to the charge.
The good faith defence, as provided for by s 148B of the NT’s Police Administration Act, would require only that Mr Rolfe honestly believed that in fatally shooting Mr Walker he was carrying out his functions as a police officer. If that were his honest belief, he would be immune from criminal liability in the matter.
This s 148B defence would not require that his conduct was reasonable in the circumstances, a test that is required by the Criminal Code defences to a charge of murder that are available to ordinary citizens (and are of course available to him).
Crown prosecutors had applied to the High Court for leave to appeal the decision by the Full Court of the Northern Territory on a question of law in this matter.
The Full Court decision held that the good faith defence would be available to Mr Rolfe.
The Full Bench of the High Court described the NT Full Court’s construction of the protection offered by s148B as extending to the exercise or performance of “any police function” – as opposed to functions and powers specifically “conferred” on members of the police force by the Act – as “overboard and erroneous”.
It set aside that part of the Full Court’s decision, which means that Mr Rolfe will not have the advantage of that very broad-brush defence, which in the Crown’s view would have undermined the Criminal Code‘s protections for the public from excessive use of force by police.
In its reasons for decision, the High Court said that it had been necessary to correct the Full Court’s error but warned that “it should not be assumed that this Court will do so in every case”.
Of particular concern was the “fragmentation of proceedings”, in other words, the interruption to the trial of Mr Rolfe, which had formally commenced and was stayed on the very day that jury was due to be empanelled.
The trial is currently listed to recommence on February 7 next year, with a pre-trail hearing scheduled for 19 November.
Last updated 10 November 2021, 9.13pm.