NT policeman charged with murder of Indigenous man … High Court to hear special leave and appeal together … Core functions of police force … Protection for civil or criminal acts committed by police … How far does police protection run? … “Unjustified” trial delay … Anna Kretowicz reports
Instead, the panel consisting of Chief Justice Kiefel, and Justices Keane and Gleeson referred the application to the Full Bench, where it will also be argued as on appeal.
Zachary Rolfe was a police officer from Alice Springs who was tasked to attend Yuendumu to arrest Walker. When entering the house, Rolfe asked Walker to put his hands behind his back, but Walker stabbed Rolfe on his shoulders with a pair of scissors he was hiding in his hand.
Rolfe then fired one shot into the middle region of Walker’s back (not the subject of any relevant charges), and footage from a body-worn camera then shows Rolfe’s colleague, Constable Eberl, falling to the ground on top of Walker and pinning him down.
Rolfe then stood over Walker and fired the two crucial shots, killing Walker, and which are the subject of the present charges.
The Full Court of the Supreme Court of the Northern Territory found that Rolfe could rely on section 148B of the Police Administration Act 1978 (NT), which conferred immunity from criminal liability from an act done or omitted to be done in good faith in the exercise of a power or performance of a function under the Act.
Relevantly, that was said to be protecting Constable Eberl’s life; a power or function derived from the common law.
Less than an hour before the trial was due to commence on Monday August 23, Justice Jacqueline Gleeson stayed the proceedings pending the prosecution’s application for special leave to the High Court on the s.148B question.
Her Honour considered that there would be an injustice if an acquittal were granted on the basis of an incorrect legal construction.
And so came the special leave application, heard tout suite.
One ground concerned the ambit of the protection conferred by s.148B, namely whether the phrase “an act in the performance or purported performance of a function under the Act” incorporates the core functions of the police set out in s.5(2).
Philip Strickland, appearing for the Crown, submitted that s.5 confers powers upon the police as a collective, but accepted that s.148B applied to individuals; a tension upon which Justice Keane alighted.
The Crown argued that the immunity should not be interpreted to include the “core” functions, and moreover, that it “should be interpreted strictly or jealously … so as not to derogate from the rights of citizens who are subject to what would otherwise be criminal acts by police officers”.
The Crown made the observation that the Full Court did not consider, in construing s.148B, whether the core functions it incorporated required statutory authority.
This was relevant as Rolfe was said to have been performing the common-law function of protecting life.
Strickland, however, accepted that Rolfe’s actions could nonetheless have been covered by the power of arrest, which having statutory authority, would have been covered by s.148B.
The Crown’s argument ultimately sought to make something of the collective versus individual distinction – around which questioning took up a fair chunk of Mr Strickland’s precious time.
Hastened along by the three-minute buzzer, the Crown weaved s.25 into its argument, submitting that that section required “functions” to have statutory authority.
The Crown advocated for a “dominant” or “sole” purpose test, in that it could only be enlivened if the function within the scope of the Act was the dominant or sole purpose for the officer’s actions where multiple actions could be identified.
High Court veteran Bret Walker appeared for the respondent, and submitted that special leave should not be granted because it was ultimately a question for the jury, and the Court’s intervention would cause “unnecessary further delay” and obfuscate “the real need to have a verdict as soon as possible”.
It was further submitted that the case had no real general public importance, and that the Crown’s proposed construction of s.148B “would show a very considerable gap in the legislative creation and regulation of the police force of a kind that is quite at odds with very old common law understanding” of the role, function and powers of the police.
The respondent rejected the Crown’s proposal that s.5 bestowed functions on a collective, and that while provisions like s.148B are generally construed to apply to the performance of functions and powers that involved the interference with rights, the immunity here should be understood to not always require explicit statutory authority.
To that point, the Part under which it was found (entitled “Police Powers”) could not be read as an exhaustive list of police powers, so it followed that s.148B must extend to common-law functions, such as protecting life.
In a neat finish, Walker submitted that the continued fragmentation and delay of these proceedings would not be justified by the practical application of any ruling by the Court, especially bearing in mind the Crown’s concession about the power of arrest.
In any case, an acquittal on a wrong construction is something that the law could tolerate.
After a lengthy deliberation, the panel referred the application to the full bench. It looks to be a sticky case; while the recent decision by the Supreme Court of South Australia in Lumsden v Police found that the equivalent provision did apply to protect a police officer, there are notable differences that limit its precedential value.
Lumsden concerned a police officer who had been directed to attend a traffic complaint as part of his duties. Long story short, he mistakenly thought he brought his cop car to a halt and accidentally pressed the accelerator instead of the footbrake when it continued to roll.
Unfortunately, Mr Wormwell and his motorbike were in the way, so causing injuries amounting to “serious harm” for the purpose of the aggravated offence of driving without due care, of which Lumsden was convicted.
Justice Stanley observed that s.5, which similarly defined the functions of the police force, was a “beneficial” provision in that it provided an “obvious touchstone” for identifying the functions and duties of a police officer; there was no warrant for reading it down.
So, the immunity in s.65 was enlivened in circumstances where the relevant act or omission of the officer occurred honestly and in the exercise or discharge of a power, function or duty conferred or imposed, whether under [that Act] or another law.
Those final words are the crucial distinction. The immunity that Rolfe seeks to rely on does not refer to functions “conferred or imposed” (merely “under“), nor does it extend to those under any other legislation or source of law.
This appeared to be crucial to the outcome in Lumsden, with his Honour reasoning that the application of the immunity where the officer was discharging the common-law duty to investigate a possible crime and control traffic was “reinforced by the provision that the power, function or duty could be imposed not only by the Police Act but by any other statute or by the common law“.
Section 148B was enacted after the equivalent South Australian provisions, so on the principles of statutory construction, it could be argued that the Northern Territory legislature would have been aware of them and made a conscious decision to enact a narrower immunity.
The answers to this statutory construction puzzle will present themselves all too soon, with the matter to be heard in November.