R v Rolfe [2021] HCATrans 137 (23 August 2021)

Last Updated: 23 August 2021

[2021] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D2 of 2021

B e t w e e n -

THE QUEEN

Applicant

and

ZACHARY ROLFE

Respondent

GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON MONDAY, 23 AUGUST 2021, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR: The applicant (“the Crown”) seeks a stay of a criminal trial pending determination of an application for special leave to appeal from part of the judgment of the Full Court of the Supreme Court of the Northern Territory (“Full Court”)^[1], on a question referred to the Full Court by the trial judge prior to the empanelment of the jury.

At the trial, the respondent, a police officer, is accused of three offences concerning the shooting death of a young Aboriginal man (“the deceased”) at Yuendumu. The alternative charges are murder contrary to s 156 of the Criminal Code Act 1983 (NT) (“the Code”), manslaughter contrary to s 160 of the Code and engaging in a violent act which caused the death of the deceased contrary to s 161A(1) of the Code. The respondent was arraigned in late 2020 and the trial was set down to begin on 19 July 2021. From 19 to 22 July 2021, the trial judge (Mildren AJ) conducted voir dires. On 22 and 26 July 2021, the trial judge referred four questions to the Full Court under s 21 of the Supreme Court Act 1979 (NT). A bench of five judges, including the trial judge, heard argument on the four questions on 28 July 2021, delivering their judgment on 13 August 2021. The judgment was based on assumed facts (that is, facts that have not been concluded or agreed)^[2], including that the respondent shot the deceased three times in short succession, and the fatal shot was either the second or the third shot^[3]. For the purposes of the Full Court hearing, the Crown accepted that the respondent fired the first shot in the course of arresting the deceased.

As a result of some disruption caused by the COVID-19 pandemic, the trial is now listed to commence on Monday 23 August 2021. On 19 August 2021, the Crown filed the special leave application, and applied unsuccessfully to the trial judge for a stay of the trial pending its determination. On 20 August 2021, the special leave application was listed for hearing on 10 September 2021.

The special leave application concerns the proper interpretation of s 148B(1) of the Police Administration Act 1978 (NT) (“the Act”), which provides relevantly:

“(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act.

...

(3) In this section:

exercise, of a power, includes the purported exercise of the power.

performance, of a function, includes the purported performance of the function.”

The Full Court concluded that s 148B may apply to relieve a person from criminal liability for the performance or purported performance of the “core functions” of the Police Force of the Northern Territory specified in s 5(2) of the Act^[4]. Those core functions include to uphold the law and maintain social order, to protect life and property, and to prevent, detect, investigate and prosecute offences.

Relevant principles

It is well established that the jurisdiction to grant a stay of proceedings pending determination of an application for special leave to appeal is “extraordinary” and requires the identification of “exceptional circumstances”^[5]. The purpose of the power to order such a stay is to “safeguard against the exercise of this Court’s appellate jurisdiction being rendered in some degree inutile or a source of adverse collateral consequences in the event of special leave to appeal being granted”^[6].

The considerations relevant to deciding a stay application include, but are not limited to, the prospects of the special leave application, any prejudice occasioned to the other party to the proceeding and the balance of convenience^[7]. It is not necessary for the applicant to demonstrate that the prospects of success of the special leave application are high, but rather that they are not insubstantial^[8].

Consideration

Although the applicant did not seek leave to appeal from the trial judge’s refusal of the stay application, the respondent did not contend that this was a matter telling against the grant of the stay. For its part, the Crown did not dispute that the respondent would suffer significant prejudice by any delay of his trial. Accordingly, the main issues are the prospects of the special leave application and the balance of convenience.

In construing s 148B, the plurality of the Full Court adopted the view^[9], expressed by Stanley J in Lumsden v Police^[10] in connection with analogous legislation, that the provision is “beneficial” and there is “no justification for reading down its terms”. The Full Court’s construction extends the scope of the respondent’s defences significantly beyond s 208E of the Code, which provides a defence to the charged offences if, relevantly, a person is a police officer acting in the course of his or duty as a police officer and “the conduct of the person is reasonable in the circumstances for performing that duty”.

In characterising s 65 of the Police Act 1998 (SA) in this manner, Stanley J referred to a quite different legislative context, anti‑discrimination legislation. However, it is at least arguable that s 148B ought to be construed in accordance with cases such as Board of Fire Commissioners (NSW) v Ardouin^[11], Stephens v Stephens^[12] and Puntoriero v Water Administration Ministerial Corporation^[13], which hold that immunity provisions will be construed “jealously” or strictly so as to confine the scope of the immunity conferred. There is a presumption that the legislature is taken to intend that a statutory power will be exercised reasonably^[14]. There may also be a presumption that the parliament of the Northern Territory would not have intended a significant alteration to the principles of criminal responsibility for loss of life without expressing itself with “irresistible clearness”^[15].

It is arguable that s 148B applies only to functions that are expressly conferred on members of the Police Force of the Northern Territory, such as the power of arrest in s 124 of the Act, and not to functions that may be identified by reference to the core functions stated in s 5(2), such as a function to protect the life of a particular person (other than the deceased). It is arguable that the performance of a function derived or based upon one or more of the “core functions” is not performance of a function “under the Act” within the meaning of s 148B.

The proper construction of s 148B in relation to the alleged use of lethal force is a matter of significant public importance in the Northern Territory (and South Australia^[16]). On the Crown’s case, if the Full Court is correct, the respondent may avoid criminal liability without consideration as to whether the use of force comprising firing the second and third gunshots was reasonable in the circumstances: a significant departure from the common law^[17] and, on its face, from the operation of s 208E of the Code. In all of these circumstances, and subject to the important principle against fragmentation of criminal trials, I am satisfied that the Crown has substantial prospects of obtaining a grant of special leave to appeal.

The principle against fragmentation of criminal trials is well established^[18]. Criminal proceedings should be heard as quickly as reasonably practicable, and arguably especially in a case concerning the alleged misuse of police powers with fatal consequences. The principle applies at all stages of the criminal process, including before the jury has been empanelled^[19]. This Court must avoid any unwarranted interference in the administration of criminal justice by the courts below^[20]. Further, the Court is not “fitted to the supervision of interlocutory processes of a criminal trial”^[21]. As the trial judge observed, if the Court were to grant special leave in this matter, it would follow that any stay would be extended until the determination of the appeal, inevitably leading to a significant fragmentation of the trial process. According to his Honour, if the trial were stayed until the determination of an appeal by this Court, the trial may not resume until April or May 2022 at the earliest having regard to the court’s availability, counsel’s availability and the availability of witnesses.

In R v Elliott^[22], special leave to appeal from a preliminary ruling on a question of law prior to the empanelment of the jury was refused in circumstances bearing significant similarity to this case. In particular, the relevant legislative scheme denied the prosecution a right to appeal from an acquittal, and Brennan CJ, Gummow and Kirby JJ noted that there were two competing considerations^[23]: the prosecution’s entitlement to a trial according to correct rulings on questions of law; and the delays and likely miscarriages of justice presumed to result from interlocutory appeals in criminal trials. In refusing special leave, their Honours observed that the relevant legislative scheme gave greater weight to the despatch of criminal trials than was given to protecting the prosecution’s ability to appeal against rulings which it thinks to be incorrect. The same must be said of the Code, which allows the consequence that there may be uncorrected rulings before a verdict produces an acquittal.

The Crown sought to distinguish Elliott on the basis that the relevant ruling was made pursuant to a statutory scheme by which the court was empowered to make preliminary rulings “so as not to delay criminal trials once the jury is impanelled”. The Crown noted that the trial judge referred questions to the Full Court pursuant to s 21 of the Supreme Court Act 1979 (NT), which power is not directed to the expeditious conduct of criminal trials, or the expeditious determination of questions of law prior to jury empanelment. I do not accept that this is a significant distinction. In any event, the trial judge’s referral to the Full Court in this case was evidently intended to facilitate the efficient disposition of the trial.

Like Elliott, this case raises important questions for consideration. However, the case is different from Elliott and exceptional in that it concerns a charge of murder against a police officer arising out of the fatal shooting of a young Aboriginal man, ostensibly in the exercise of the officer’s duties. The trial of a member of the Police Force, whose functions included the protection of life, in connection with the death of the deceased, is a matter of the gravest community concern. The scope of the respondent’s available defences is of central importance in the trial. The injustice of a possible acquittal of a police officer for murder of a young man in the context of the attempted execution of an arrest warrant, on the basis of an incorrect ruling on a question of law, is of a different order of magnitude from an acquittal on a charge of white collar crime, however egregious.

The trial has already been fragmented by the trial judge’s referral of questions to the Full Court for determination, albeit this fragmentation coincided with delay caused by the COVID-19 pandemic. The further prejudice to the respondent that will be suffered by a stay as well as the trial judge’s grave concerns about the prospect of further delay and uncertainty, including as a result of the COVID-19 pandemic, and the inconvenience to the court and to the approximately 50 witnesses who will give evidence are all matters weighing against the grant of a stay. Acknowledging that the special leave application may ultimately be refused on the basis of the principle against fragmentation of criminal trials, the question of the proper construction of s 148B is of sufficient importance generally, and in this case, to justify a three week stay of the trial pending the determination of the special leave application. In the exceptional circumstances of the case, I am persuaded to grant a stay of the respondent’s trial to 4.00 pm on 10 September 2021 or until further order.

Accordingly, I order a stay of the respondent’s trial to 4.00 pm on 10 September 2021 or until further order.

My published reasons will be incorporated into the transcript.

Please adjourn the Court.

AT 9.41 AM THE MATTER WAS CONCLUDED

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^[1] The Queen v Rolfe (No 5) [2021] NTSCFC 6.

^[2] The Queen v Rolfe (No 5) [2021] NTSCFC 6 at [6].

^[3] The Queen v Rolfe (No 5) [2021] NTSCFC 6 at [18]-[20].

^[4] The Queen v Rolfe (No 5) [2021] NTSCFC 6 at [111] per Southwood J and Mildren AJ, [180]-[182], [189], [204](a) per Kelly and Blokland JJ and Hiley AJ.

^[5] Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447 at 440-450 [12]- [14]; [2016] HCA 9; 329 ALR 372 at 375. See also Sewell v The Queen [2001] HCATrans 529; Roddan v Director of Public Prosecutions [1998] HCA 20; [1996] 6 Leg Rep 13; Re Rozenes; Ex parte Burd [1994] HCA 11; (1994) 68 ALJR 372 at 373; [1994] HCA 11; 120 ALR 193 at 195; Fuller & Cummings v Director of Public Prosecutions (Cth) (1994) 68 ALJR 611 at 614; Eastman v The Queen [1995] 12 Leg Rep C9. Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28 at 31; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681at 684.

^[6] Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447 at 449 [12]; [2016] HCA 9; 329 ALR 372 at 375.

^[7] Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447 at 450 [14]; [2016] HCA 9; 329 ALR 372 at 376. See also Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 684; Sewell v The Queen [2001] HCATrans 529.

^[8] Mercanti v Mercanti [2017] HCA 1; (2017) 91 ALJR 258 at 260 [11]; [2017] HCA 1; 340 ALR 225 at 227, citing Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 685.

^[9] The Queen v Rolfe (No 5) [2021] NTSCFC 6 at [180]-[181] per Kelly and Blokland JJ and Hiley AJ, see also [139]-[140] per Southwood J and Mildren AJ.

^[10] (2019) 135 SASR 265 at 271 [15].

^[11] [1961] HCA 71; (1961) 109 CLR 105.

^[12] (1970) 72 SR (NSW) 459.

^[13] [1999] HCA 45; (1999) 199 CLR 575.

^[14] Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 at 362 [63].

^[15] Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at 307-308 [307]- [308].

^[16] See Police Act 1998 (SA), s 65.

^[17] See Woodley v Boyd [2001] NSWCA 35 at [37]; R v Whittington [2006] NTSC 64; (2006) 17 NTLR 235 at 239 [11]- [12]; McCann v Director of Public Prosecutions [2004] EWHC 1805; [2016] 1 Cr App R 6 at 93-94 [24], [26].

^[18] Alqudsi v The Queen [2015] HCA 49; (2015) 90 ALJR 192 at 195-196 [22]; [2015] HCA 49; 327 ALR 1 at 6, citing Pan Laboratories Pty Ltd v Commonwealth (1999) 73 ALJR 464 at 466 [11]; Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447 at 450-451 [15]- [16]; [2016] HCA 9; 329 ALR 372, 376-377. See also Smith v The Queen (1994) 181 CLR 338 at 346; R v Elliott [1996] HCA 21; (1996) 185 CLR 250 at 257.

^[19] Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 at 339; R v Elliott [1996] HCA 21; (1996) 185 CLR 250 at 257; Alqudsi v The Queen [2015] HCA 49; (2015) 90 ALJR 192 at 195-196 [21]- [23]; [2015] HCA 49; 327 ALR 1 at 6. See also Criminal Code 1983 (NT), s 336(2).

^[20] Eastman v The Queen [1995] 12 Leg Rep C9.

^[21] Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28 at 32.

^[22] [1996] HCA 21; (1996) 185 CLR 250.

^[23] R v Elliott [1996] HCA 21; (1996) 185 CLR 250 at 257.