R v Rolfe [2021] HCATrans 180 (2 November 2021)

Last Updated: 3 November 2021

[2021] HCATrans 180

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

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON TUESDAY, 2 NOVEMBER 2021, AT 10.00 AM

Copyright in the High Court of Australia

KIEFEL CJ: In accordance with the protocol relating to remote hearings, I will provide the names of counsel appearing in this matter.

MR P.M. STRICKLAND, SC appears with MS S.G. CALLAN, SC and MS S. PALANIAPPAN for the applicant. (instructed by Director of Public Prosecutions (NT))

MR B.W. WALKER, SC appears with MR J.D. EDWARDSON, QC for the respondent. (instructed by Tindall Gask Bently).

KIEFEL CJ: Yes, Mr Strickland.

MR STRICKLAND: Your Honours, may I inquire whether the Court has received our three pages of outline?

KIEFEL CJ: Yes, we have, Mr Strickland.

MR STRICKLAND: There are three other documents that I have asked to be sent to the Court. The first is a copy of the Fire Brigades Act, which is the relevant Act discussed in the High Court decision of Ardouin, an original version of section 155 of the Police Administration Act, and a general order of the Northern Territory Police issued under section 14A of the Police Administration Act. May I inquire whether the Court has received those documents?

KIEFEL CJ: Yes, they were received, thank you, Mr Strickland.

MR STRICKLAND: Your Honours, this case concerns the fatal shooting of an indigenous man on 9 November 2019. The respondent was a police officer working in Alice Springs and he together with other officers, notably Constable Eberl, from the immediate response team, were tasked to arrest the deceased at Yuendumu.

The respondent shot Mr Walker three times at a house in Yuendumu. The first shot was fired into the middle region of Mr Walker’s back after Mr Walker stabbed the respondent in the left shoulder. That first shot is not the subject of any charge.

After the first shot, Mr Walker and Constable Eberl, who had been standing, fell to the ground struggling. Constable Eberl was on top of the upper body of Mr Walker, who was lying on a mattress on the floor. The respondent then stood over the deceased and 2.6 seconds after the first shot, the respondent fired two further shots in quick succession from a distance of about 5 centimetres, that is from the deceased.

At that time, Mr Walker was lying face down on a mattress. One or both of those shots were fatal, and the respondent is charged with murder in relation to those two shots. The respondent was wearing a body‑worn video during the incident and that records Constable Eberl saying, within moments after the fatal shots were fired:

Did you? Fuck.

The respondent replied:

That’s me. It’s all good, he was stabbing me, he was stabbing me.

. . .

It’s all good, he’s got scissors in his hand, he was stabbing me, he was stabbing you.

All of those facts emerged from the assumed facts. The body‑worn video is attached to those assumed facts and the transcript of that body‑worn video that I read out, an extract of it, is at the core appeal book 35.

KIEFEL CJ: Mr Strickland, although these are assumed facts for the purpose of the reference, do I understand the respondent to reserve his position in relation to disputing some of them at trial?

MR STRICKLAND: I think that would be fair, your Honour.

KIEFEL CJ: In particular, in relation to the position of his colleague.

MR STRICKLAND: That is so.

KIEFEL CJ: I suppose the next thing that should be said about these facts is that we have a preliminary question here about whether or not this is hypothetical, so your reliance upon the detail of the facts is perhaps not necessarily to your advantage?

MR STRICKLAND: Your Honour, may I indicate this. Those facts that I have set out in the introduction are uncontroversial. What is controversial and what is not necessary for the purpose of this appeal is the precise position of Mr Eberl and whether Mr Eberl was in control of the deceased at the time of the fatal shots. The facts that I have outlined, and I have attempted to do so uncontroversially, are facts that by and large or perhaps entirely are not in dispute.

The matters that the respondent has indicated are in dispute are those that I have indicated which is the degree of control that Constable Eberl had over the respondent and that is not a matter that is relevant to resolve the statutory construction issue that is at the heart of this case.

I am going to address the Court – the structure of these oral submissions are as follows. I propose to address the Court as to the relevant provisions in the Police Administration Act and identify why particular rules of statutory construction favour our approach to that provision. I will then go to the issue of the hypothetical. I will then go to the issue of why special leave ought to be granted which will deal with both the materiality of the controversy between the parties as well as the issue of whether it is hypothetical or not. That is how I propose to address the Court, if convenient.

So I am now at speaking note point 3. I should say this before I go on. The criminal trial - your Honours will see in the chronology that this trial has been set down for hearing on 7 February 2022. In the pretrial hearings the respondent has stated he intends to reply on three defences: self‑defence under section 43BD of the Criminal Code; a specific defence for law enforcement officers which include the police under section 208E of the Criminal Code; and what is the subject of this appeal, the immunity or statutory defence under 148B.

This case concerns the ambit or scope of 148B and at issue is whether the phrase “an act in the performance or purported performance of a function under the Act” in section 148B incorporates “The core functions of the Police Force” set out in section 5(2) of the Act. I will be taking your Honours very shortly to the terms of those provisions.

The applicant contends that the Full Bench erred in holding that the protection afforded by section 148B extends to the performance of core functions under section 5(2) including, relevantly, the protection of life and the prevention of crimes. We have set out in our written submissions – and I will not take the Court to them – the relevant paragraphs of the findings are at core appeal book 207, in particular paragraph [205] of the plurality, and in the judgments of Justices Southwood and Mildren, court appeal book 165 at paragraph [111] and [120].

In very short compass, we say that special leave to appeal should be granted for these reasons, and I will develop them later on. First, the issue before this Court is not hypothetical. We do not seek an advisory opinion from the Court. There is extant litigation and, in our submission, a material controversy between the parties relates to the construction of section 148B. I will develop what that material controversy is later on.

We say the significance of an incorrect ruling on section 148B is that the respondent may be acquitted of murder or the alternative charge that he is facing on an incorrect basis, and this trial ought to be conducted in accordance with the law. The trial is of national importance. Whenever the police use lethal force against a citizen, that is a matter of public importance, and the public importance is more poignant when the citizen is indigenous, having regard to the controversial history of the State’s use of power against indigenous Australians.

Can I go to the first part of the submissions, which is the proper construction of section 148B, and could I ask the Court to go to the book of authorities at page 149. It is Part A. There are some parts of 148B that I wish to draw the Court’s attention to.

The first is the heading of 148B. That is incorporated into the Act pursuant to the Interpretation Act and it is under section 55(2) of the Interpretation Act (NT) and that is “Protection from liability”. That is similar to the language of the immunity provisions that we have referred to in our authority, the line of authority that can conveniently be called the Ardouin line of authority. There, the immunity in that Act refers to the “Board shall not be liable”.

The second thing to note – sorry, your Honours – Chief Justice, I will wait for you to ‑ ‑ ‑

KIEFEL CJ: Yes, thank you, Mr Strickland, sorry to hold you up.

MR STRICKLAND: Not at all. It is at 149 of the book of authorities, Part A. Chief Justice, do you have ‑ ‑ ‑

KIEFEL CJ: Yes, yes, I have located it, thank you.

MR STRICKLAND: I am sorry. So, protection from liability, similar to the language of Ardouin. The next matter to notice is that the liability extends to criminal and civil liability. The next matter to notice is the liability extends to “a person”. That becomes important when we deal with the legislative history. The old version or the original version of 148B protected a member, which is defined as a member of the Northern Territory Police Force, but when the legislation in 2016 came into effect that was changed to “person”.

As has been observed by Justices Southwood and Mildren at core appeal book 154 there are a number of persons other than members, i.e. police, who exercise powers or functions under the Act. They include doctors, nurses, correctional officers, persons appointed to the Appeal Board.

The next relevant phrase is “good faith” - an act must be done in good faith. I intend to say an act done, although obviously the immunity can apply to omissions, but that is not relevant in this case. I will refer to it as an act. An act must be done in good faith to attract the immunity. “Good faith” has been described as protean in character because the act appears in many different – I am sorry, the phrase “good faith” appears in many different statutes and, indeed, in different common law contexts. It is synonymous with the phrase “bone fide”.

In the Full Court of the Federal Court in Bropho [2004] FCAFC 16; (2004) 135 FCR 105 - it is not in my authorities - there is a useful discussion of “good faith”. I think it is discussed - it is used about 155 times in different statutes or something like that but there is a core meaning of that phrase. It is best defined in Black’s Law Dictionary as:

A state of mind consisting in (1) honesty in belief or purpose –

or honesty to one’s duty or purpose. That, in my submission, is a helpful and relevant definition of “good faith”. Good faith is directed both to the ends of a person’s conduct and the means of achieving that end. We have referred to that at paragraph 71 of our written submissions, based upon Justice White’s discussion of good faith in the decision of Campbell.

In the context of section 148B, it means that when a person – to retract the immunity, a person must have an honest belief that he is exercising a power under the Act – for example, a power of arrest – but he also must have an honest belief as to the means of exercising that power, in other words, if it is a power of arrest, he must have an honest belief that the use of force is reasonable to effect the arrest – under statutory power when force is used to effect an arrest it must be reasonable.

My learned friend in his written submissions correctly states, with respect, that questions of the reasonableness of the respondent’s conduct are relevant to assessing whether an act is done in good faith. So, we accept that there are common factual elements between the two concepts, but they are separate concepts and good faith does not require reasonableness as a test to satisfy that concept.

That particular matter was discussed by Justice Dixon, as he then was, in the case of Little v The Commonwealth. If I may take the Court to that authority, which is at volume 3, Part C, page 383 of the appeal book ‑ ‑ ‑

EDELMAN J: Which tab is that, Mr Strickland?

MR STRICKLAND: It is the joint book of authorities, Part C, tab 14, beginning at page 368. The relevant provision that Little was considering is set out at page 368 in the footnote, in the National Security Act - - -

KIEFEL CJ: Which page of the report is that?

MR STRICKLAND: Page 94 of the report.

KIEFEL CJ: Thank you.

MR STRICKLAND: Under the headnote, the section is set out:

No action shall lie against the Commonwealth –

et cetera. Justice Dixon considered generally what was required to fulfil or to qualify for the protection. At page 383 of the authorities book, which is page 109 of the report, at about point 2 or 3 of the page, at line 9, Justice Dixon, in a passage that has been oft quoted, said:

It has, however, been found not easy to define the exact conditions which must be fulfilled to qualify for protection. Bona fides has been regarded as indispensable.

He then goes on to discuss the authorities as to whether reasonableness is a relevant condition, in addition to the notion of good faith. His Honour concluded that it was not. His conclusion is reached at pages 385 and 386 of the book of authorities, which is page 111 of the judgment. Having discussed the authorities, at about point 6 of the page, his Honour says:

In dispensing with the necessity of reasonable grounds, these decisions did not escape comment or criticism and perhaps qualification . . . But the effect of the subsequent case of Chamberlain v. King seems to be that, provided there are some circumstances on which to base the belief, it is enough that the belief is honest.

That leads to the conclusion at page 386, having quoted Halsbury, Laws of England at about point 3 of the page:

The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision.

I raise that because I accept that there are other authorities in different statutory contexts where good faith and reasonableness are intertwined, but in the context of immunities that does not appear to be the case.

KIEFEL CJ: Mr Strickland, you talk of 148B as an immunity. Is that correct? It is a statutory defence, is it not?

MR STRICKLAND: It is, your Honour. The authorities have sometimes referred to provisions with similar language as “ an immunity”. For example, in Ardouin, which contains similar language, it is sometimes referred to as an immunity. I think in the High Court case of Fingleton it is referred to as an immunity. So the Court has used different language. In Webster v Lampard, I think Justice McHugh called it “a defence of statutory protection”.

It is given different words – sorry, different characterisations, but I accept that it can be described as a statutory defence. That is all I can say on that. Suffice to say that the courts have not, understandably, provided a uniform term to simply capture how that defence is described.

Can I note 148B(3), which is that exercise or performance includes purported exercise or purported performance of the function. I am now back at section 148B. That statutory extension of the definition reflects the common law, which is discussed in Little, which is that a person who honestly but mistakenly acts in pursuance of a statutory provision is also afforded the protection. Can I now turn to the critical phrase in 148B which is the words “under this Act”?

EDELMAN J: Mr Strickland, before you do move on to that, can I just clarify one point you made about good faith before you move on?

MR STRICKLAND: Certainly.

EDELMAN J: I understand you to accept that in this context “good faith” does not import a requirement of reasonableness, but you say that it includes a requirement that there is a belief that the means of the exercise of power was reasonable.

MR STRICKLAND: Yes.

EDELMAN J: Does that mean that in exercising the power you say that a conscious belief must be formed - a person must consciously interrogate themselves as to whether what they are doing is reasonable? If not, what does this requirement of “a belief as to reasonableness” mean?

MR STRICKLAND: To answer your Honour Justice Edelman’s question, I used that formula in the context of a particular statutory power, being the power of arrest, and I did so because that power which is contained in Part VII of the Police Administration Act involves necessarily – that power involves - the means to exercise that power when force is used must be reasonable. That is embodied in the statute itself, when one looks at the general order that I have taken the Court to, which I think is clause 23 of that order.

We say that if a particular power that is conferred under the Act includes the use of reasonable force, if I can use the relevant example here, then honest belief must include the means of exercising that power as well. I was using that as an example of where a particular statutory power under the Act is conferred. In that particular example, the honest belief in the reasonable use of force, we say, is necessary to jump over the hurdle of good faith.

EDELMAN J: Just so I understand then your answer, your answer is that when the power that is being exercised requires, for the actual valid exercise of the power rather than a purported exercise of it, when the power actually requires an element of reasonableness, there must be a positive belief that has been formed that the act is reasonable before the person can be in good faith?

MR STRICKLAND: Yes, your Honour, that is what we say. We say that the authority for that proposition emerges from the authorities discussed by Justice White in Campbell, which is in our written submissions.

GLEESON J: Is it that the person exercising the power has to consciously advert at the time of the exercise, or is it rather that they could not rely on a defence of good faith unless they consciously adverted to the question of whether they are exercising the power in good faith at the time of, in this case, the shooting?

MR STRICKLAND: Your Honour, we say the latter of your Honour’s formulations.

GLEESON J: All right.

GORDON J: Sorry to ask one more question about this, Mr Strickland - is another way of putting it that the requirement of good faith not only requires honesty but also requires fidelity to the exercise of the limits that are attached to the power?

MR STRICKLAND: Your Honour, I exactly embrace that formulation.

GORDON J: Thank you.

MR STRICKLAND: Indeed, that is consistent, Justice Gordon, with the formulation of “good faith” in that second definition in Black’s Law Dictionary, being faithful to the terms of the statute.

GORDON J: Can I just ask one more question - does that mean that the requirement for the limits that - fidelity to the limits depends upon the power being exercised so, for example, the power of arrest has its own inbuilt limit as does the common law powers, for example, for prevention of a crime?

MR STRICKLAND: That is so. Exactly right, your Honour.

GORDON J: Just so I am clear, is your answer to that the same then when you are dealing not with a police officer but, for example, a doctor for whom these provisions were drafted?

MR STRICKLAND: Yes, that is so, it is the same answer.

GAGELER J: Mr Strickland, I was going to draw your attention to Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 where a provision along these lines was described as sufficiently ‑ ‑ ‑

MR STRICKLAND: Can I just grab that authority, your Honour – could your Honour just give me one moment to grab that authority?

GAGELER J: Yes, of course.

MR STRICKLAND: I do have it somewhere. Thank you for that Justice Gageler.

GAGELER J: You have the authority?

MR STRICKLAND: I have it, yes.

GAGELER J: You have it to hand?

MR STRICKLAND: I have it to hand, thank you. I do have it to hand, thank you, your Honour.

GAGELER J: The point is sufficiently condensed in the first holding in the headnote, the reference being to the person “invoking the defence”, as it is called there:

genuinely but mistakenly believed that he or she was acting within the limits of the authority expressly or impliedly conferred by the relevant statutory provision ‑ ‑ ‑

As I understand it, that really captures your point.

MR STRICKLAND: It does, your Honour, and it captures – it does, your Honour, and it is also reflected in 148B(3) with the notion of purported exercise and purported performance of a function.

GAGELER J: Thank you.

MR STRICKLAND: Can I turn to the phrase under the Act? Now, there is a well‑defined approach to the construction of the phrase “under the Act” or “conferred by this Act” since at least the decision of this Court in Board of Fire Commissioners v Ardouin and the phrase describes acts or omissions which are expressly authorised by the terms of the Act. Those acts which would otherwise be unlawful by their nature because they interfere with the rights of persons or property are rendered lawful because they are performed with the express authority under the Act. That, as I understand it, is the ratio of Ardouin.

An immunity provision such as 148B does not apply to acts done without the need for the exercise of statutory power and that is why core functions cannot be incorporated into section 148B because many core functions do not interfere with the rights of persons. Many core functions are functions where there has been no express conferral of statutory authority.

Can I take the Court now to section 5, which is set out in Part A of the book of authorities at page 25, and section 5 sets out the core objectives or the core activities. What it does not do, either expressly or by invocation, is confer any specific powers on members. The section which does confer powers expressly is section 25, which is set out at page 38. That section provides that:

a member shall perform the duties and obligations and have the powers and privileges as are –

and these are the key words:

by any law in force in the Territory, conferred or imposed on him.

We say that is the source of the conferral of power and the performance of functions under section 148B, not section 5(2). We say that that process of statutory construction is consistent with Ardouin.

Could I take the Court to that authority, which is in appeal book 308 at Part C, tab 12, and for this – and only for this part of the submissions I do need to take the Court – I would like to take the Court to the Fire Brigades Act which I provided because it is difficult from the judgment to understand the particular provisions that are being referred to in this decision.

So, Ardouin, of course, is where Mr Ardouin sued the Board of Fire Commissioners for damages for personal injury which he received when his motorbike came into collision with a fire truck belonging to the fire brigade. Now, the Board of Fire Commissioners invoked section 46. You can see it either at page 313 – perhaps most conveniently at 313 – it is set out by Justice McTiernan who was in dissent. Right at the bottom of page 313, which is page 110 of the report, that sets out the language of section 46 of the Act:

“The board, the chief officer or an officer of the board exercising any powers conferred by this Act or the by‑laws, shall not be liable for any damage caused in the bona fide exercise of such powers”.

We say “conferred by this Act” echoes under the Act ‑ we say “shall not be liable” echoes not being civilly or criminally liable and we say “bona fide” echoes good faith.

Now, the Board of Fire Commissioners said that they were not liable to Mr Ardouin because the act of driving a truck along the street attached to ‑ the section 46 immunity attached to that act and the High Court with Justice McTiernan dissenting said that was not so. The act of driving a truck along the street, although it was part of – I am not using the language of Ardouin - a core function of the fire brigade, although it was a core function it did not fall within the ambit of the immunity because it did not involve exercising any power conferred by this Act. Chief Justice Dixon at page 313 of the appeal book – or page 110 – explained why that was so. He said that – the second line of page 110:

But it may be said generally that once a power is found which depends upon the statute and involves detriment or disadvantage to others . . . it appears to me that s. 46 is capable of applying –

and these are the key words for the purposes of this case:

it is not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority. It is a function of the Board under s. 19 . . . to extinguish a fire, to protect and save life.

If the Court goes to the Act, in section 19 – you will see it is under the heading “Duties and powers of board”:

It shall be the duty of the board to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property -

So, again, that may echo the core functions of the board, but likewise, it is no doubt a duty under section 28 for a brigade to proceed at all speed to the site of a fire. If the Court goes to section 28, again under the heading “Duties and powers”, it talks about:

A fire brigade, upon alarm of fire, shall . . . proceed with all speed to the place where the fire is –

and seek to extinguish it:

and save such lives and property as may be in danger.

Again, one may think, expressing the core functions of a fire brigade. But his Honour said – and this is about point 4:

But that –

and by “that”, he means the duties under section 19 and the duties under section 28:

involves no specific power to which s. 46 would necessarily attach . . . All I think that can be said in the present case is that s. 46 is not concerned with the use of a highway by fire brigade vehicles to reach the site of a fire and does not exclude a liability for negligence in the course of carrying out that duty or function.

By contrast, at page 312, he says that other specific powers – and if I can take the Court to section 20(e) – that is what Chief Justice Dixon refers to – under the heading “Duties and powers of board” – section 20(e) says that:

For the purpose of carrying out the provisions of this Act, the board may –

...

(e) by its officers, servants, or agents enter any land, building, or vessel where any fire has occurred, and retain possession thereof and of any property –

et cetera. Now, that power involves the interference of rights, that is, entering a building; retaining property. There are other provisions which involve the destruction of property. His Honour said that specific power which involves the interference of rights does attach to - that does invoke the protection. There is a specific power that interferes with rights. I will not take the Court to the remainder of the judgment, but they all echo what the Chief Justice said. For example, Justice Kitto says at page 321, that is, 118 of the judgment:

To drive a vehicle on a public street, for the purpose of dealing with a fire or for any other purpose, needs no grant of power.

At page 324, Justice Taylor draws the distinction, what he says is:

a significant distinction between its general authority and capacity to function as a statutory board and the special powers conferred upon it by the Act in relation to the prevention and control of fires.

So, your Honours, going back to section 5(2) of the core functions, you will see that many of those core functions are of a character not involving the invasion of private rights and not requiring any special authority. It is inapt, in my submission, to incorporate all those core functions as part of exercising of power or performing of function under the Act in section 148B.

Just to elaborate briefly, for most general duties of police officers the core functions would involve mundane but important tasks – crowd control, asking bystanders questions to investigate a crime, giving directions to citizens, patrolling the streets, giving advice about driving. All of those might be described as core functions, but they can hardly be said to invoke the immunity or the statutory protection under 148B.

KIEFEL CJ: Mr Strickland, as I understand your argument, you do however accept that the power of arrest in section 124 is contemplated by section 148B and you do accept that the common law powers to which section 25 refers would also come within section 148B. Is that correct?

MR STRICKLAND: That is correct.

KIEFEL CJ: If the common law powers come within the exclusion of liability in section 148B, is the requirement in faith attached to the exercise of the common law powers?

MR STRICKLAND: Yes, it does. Your Honour, the way it must work, in my submission, reflecting Ardouin, is that - take the common law power of to prevent an offence, and there is abundant authority that that is a common law power that police have. Conferred as it is by section 25 under the common law, it would mean that – and to be specific, where there is an act done by a police officer using force to prevent an offence, under the common law that is constrained. It must be a reasonable use of force to prevent an offence and that is a function which may be protected under 148B, not as a result of incorporating section 5(2) which is not tethered to those common law restrictions, but as a result of the common law powers.

That means, critically, that to invoke the protection under 148B, the officer must honestly believe that his use of force is reasonably necessary or is reasonable to prevent the offence. That would be the criteria for the application of the provision, whereas, if it was incorporated under section 5(2), there would be no such critical restraint on the exercising of that power.

KIEFEL CJ: The common law powers that would be relevant here would be the protection of life and the prevention of crimes.

MR STRICKLAND: That is so. There is an issue, your Honour, which – the prevention of crimes is undoubtedly a common law power. The protection of life is difficult to precisely describe as a common law power. There are adjunct powers.

KIEFEL CJ: Yes, I see.

MR STRICKLAND: For example, the common law power would prevent a breach of ‑ ‑ ‑

KIEFEL CJ: The common law powers most clearly would include the prevention of an offence and the apprehension of persons suspected of having committed an offence.

MR STRICKLAND: Exactly. My learned friend says ‑ ‑ ‑

STEWARD J: Mr Strickland, before you go on, can I ask, perhaps unlike 208E this is a subjective test on your argument ‑ that is, that the relevant member must honestly believe that they are using reasonable force. Is that right?

MR STRICKLAND: Yes, that is exactly right, your Honour.

STEWARD J: All right, thank you.

MR STRICKLAND: My learned friend is against us – the Ardouin line of authority and Stephens v Stephens and Puntoriero are civil cases and criminal immunity is a different species. It is a different landscape. Our submission is, first, in response to that, the fact that all of those, the Ardouin line of authority is a civil case, we say does not affect the proper construction of this provision, principally because section 148B protects both civil and criminal liability.

On this case, for example, the relevant act, being the firing of the fatal shots, involves both criminal and civil liability, potentially. It is a crime potentially and a cautious conduct. So it would be incongruous if the approach to statutory construction depended upon whether the provision was relied on in the civil or the criminal jurisdiction.

Furthermore, the rationale for the Ardouin construction, that is described as the jealous construction applies equally in this case. If I could finally take the Court to the last passage in Ardouin to which we draw the Court’s attention, at page 319. Justice Kitto, again in a well‑known passage, at page 116 of the authorities, last paragraph, states that:

Section 46 operates, then, to derogate, in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.

That statement has been adopted in many subsequent decisions and we say it applies equally here. My learned friend may say the difference here is 148B(2), if I could draw the Court’s attention to that provision. So, that is simply - the effect of that provision is that if the immunity applies then a person can still sue the State in relation to any civil claim. But that carve‑out or that provision does not affect the width of the criminal – the exemption from criminal liability and we say jealous construction in this case is necessary or is in the public interest to maintain the accountability of and the public confidence in the police because if the Full Bench’s construction was adopted then it would mean that police – any activity of a police officer, because core functions include any function, would not be tethered to any notion of reasonableness in the exercise of a power and that would expose or has the risk of exposing citizens to police abuses or excesses and so the rationale for the jealous construction applies equally in relation to section 148B.

We also draw in aid the principle, the well‑known principle that only clear words should be used - if there was to be a derogation of rights, clear, unmistakable language should be used and that is not the case in 148B. There is no clear and unmistakable derogation of rights and those rights being in relation to police use of force being reasonable, necessary and proportionate.

Can I just take the Court finally - this is the last part of what I wish to say about the relevant provisions of the Act and that is section 25. I do not need to dwell on this, but the Court could go to I think it is section 25 of the Act which is page 38 of the appeal book. I think from what has been said already - I do not need to dwell on this but suffice to say that is the provision that confers powers under 148B.

The powers include.....and common law powers and all of those powers, we say, have relevant restraints. For example, if one goes to Division 3 of Part 7 of the Act on page 102 of the book of authorities, Division 3 deals with arrest and every provision in that section involves the interference with the liberty of the citizen, obviously. But all of those provisions impose constraints on the exercise of powers.

Now, there are different types of constraints. There may be, for example, a precondition to the exercise of power, for example, a police officer needs a warrant. The restraint may be that a police officer must have a particular state of mind before a power can be exercised, for example, there must be a belief on reasonable grounds that the person has committed an offence, 1, 2, 3. Or when exercising power, the officer must use reasonable care in a broader necessary force when effecting arrest. That is clause 23 of the general order. The same can be said as we have said to the conferral of powers on the police by the common law in the manner we have discussed.

So, that is why we say that there is an important and practical difference between our construction of section 148B where the source of the power and it is also the functions of the member under the Act is section 25 because under section 25 the source of the power is tethered to those restraints of power that I have been referring to. That would not be the case if the source of power is section 5(2).

Now, could I next go to the legislative history of section 148B. I am now on point 9 of our written outline. We say in short that the legislative history does not indicate that Parliament intended that the protection afforded by section 148B extends to the performance of core functions under section 5(2). So could I go first to the original section 148B, and you will see that in Part B of the authorities under page 276. You will notice a few things about that. First:

This section applies to a person who is or has been a member -

and “member” is defined as a member of the Northern Territory Police Force. Secondly, it applies only to – it only extends to civil liability. It does not contain the word “function”.

Now, 148B was introduced – and I will not take the Court to it, but the relevant part is at Part E, pages 773 to 774 of the authorities but it is not essential to this, but I would simply say 148B was introduced to provide immunity from civil liability to acts done by members in their capacity as public officials under various legislation and it was designed to unify all those provisions in a single scheme.

So, for example, police officers who in their capacity as public officials under say the Fisheries Act or the Tobacco Act, they were to be given the same immunity because before 148B was introduced there were different immunities for different public officials. That was the purpose of 148B.

If I could now go to the 2016 Act and you will see from our chronology that the new 148B was introduced by the Police Administration Amendment Act which commenced on 28 September 2018. Could I ask the Court to go to, again, Part B at page 250. That sets out the Police Administration Amendment Act and we say that these provisions are important in our construction of 148B. The first matter to notice is that 148B, which you will see at page 251, is introduced in the same Act as Part VII, Division 7AA, which is headed “Blood testing for infectious diseases”.

Now, the purpose of that amendment we say is really quite important for the construction of this Act and I would like to take the Court to the second reading speech of this Act which the Court will see at Part E, page 900. The entirety of the second reading speech focuses on the following, and it is captured very simply by the very first paragraph in the second reading speech:

By nature of their work, officers of the Northern Territory Police Force are likely to encounter a transfer of blood or bodily fluids from a person during the course of their duties, potentially exposing that officer to a risk of contracting an infectious disease.

The purpose of this amending Act was to provide a regime where, if a police officer believed that they had been assaulted or spat upon or bitten or smeared with a substance, that officer could require the person who did those acts, described as the transferor, to be tested so that the member would know whether they had been exposed to an infectious disease. That was the purpose of this amending Act, and the sole purpose of it. So, just to take the Court to three or four provisions in the amending Act, first if the Court goes to 147FB, which is at page 257:

An affected member may apply to a senior member for a disease test approval in relation to a transferor if:

(a) there are grounds for disease testing –

et cetera. Grounds for testing are found in 147FB(5), meaning grounds for suspecting that there has been a transfer of a substance from the transferor to a member. At 147FD:

A senior member may grant a disease test approval –

Then, importantly for the purposes of this case, 147FR. That provides in subsection (1) that:

A member . . . may ask a medical practitioner, nurse or qualified person to take a blood sample from the transferor.

Then subsection (3) provides that:

Subject to subsection (4), the medical practitioner, nurse or qualified person must take a blood sample from the transferor –

That is an interference with rights, to go back to the analysis of Ardouin. To make it very explicit about what is being referred to, if I could ask the Court to go to section 155 which is at page 268. That has also been amended. Now, in the original 155 which I have asked the Court to have, you will see that that provides that a member shall not, without reasonable cause, publish or communicate any fact in the course of his duties, and that has been amended in 155 to:

A person commits an offence if:

(a) the person –

not a member:

person obtains information –

and this is the critical phrase:

in the course of performing functions connected with the administration of this Act –

So what Part VII, Division 7AA has done is to confer functions on persons other than police members and the word “function” in 148B has therefore replaced – has been added to capture doctors, nurses and qualified persons who are required under the Act to perform a function which interferes with the rights and liberties of a person and that those persons therefore attract the immunity or the statutory protection under 148B. It has nothing whatsoever to do with the word “function” picking up core functions in section 5(2). There is no indication in the second reading speech. There is no indication in the explanatory memorandum, that the word “function” - that adding the word “function” in 148B was to pick up core functions.

It is all to do with ensuring that the functions performed by non‑members – medical practitioners, nurses – it will be protected, and indeed, your Honours, that is clear – if I can finally go to the core appeal book page 155 – the explanatory statement to this amending Act is set out at paragraph [80] – and it is clear from that – in the last few lines:

This section reflects changes so as to include people acting under the new provisions of this Bill (i.e. medical practitioners, nurses and qualified persons).

So, we way that the.....officially makes it quite clear that there was no intention by Parliament to extend 148B to the core function under section 52. I now go to point 10 of the notes – and that is, we say, that the Full Bench ‑ ‑ ‑

GORDON J: Can I ask one more question, Mr Strickland, before you go to point 10? At the time that section 5(2) was introduced into the Act, was there anything to suggest that the inclusion of core functions was intended to expand the ambit of the powers and functions of police members not subject to any of the restrictions either in statute or at common law?

MR STRICKLAND: No, your Honour, there was not.

GORDON J: Thank you.

MR STRICKLAND: So, in relation to point 10, our submission – and I will say this at the outset - this is very much an ancillary point – our main point about construction focuses on the words “under the Act” and Ardouin and then the legislative history. But we say, as a supplementary point, the Full Court’s construction of 148B renders 208E in its application to police officers effectively inutile in circumstances where there is no evident legislative intention – from the materials I have taken your Honours – to do so.

We say that because if the Full Bench’s construction of 148B was correct, the core functions in section 5(2) would subsume all the duties performed by a police officer, for the purpose of 208E. Can I take the Court to 208E. You will see that at Part B, page 205 – and, as Justice Steward has correctly noted, this is an objective test:

A person is not criminally responsible –

if.....preconditions are required – in this case a police officer acts:

in the course of his or her duty –

and:

the conduct of the person is reasonable in the circumstances for performing that duty.

Now, section 208 is in Part VI of the Criminal Code Act, which is entitled “Offences against the person and related matters” – and its field of operation is this, that when a police officer commits an act which is otherwise contrary to the provisions of Part VI – he is not criminally responsible if those two preconditions are met.

Now, if 148B picks out the core functions, a police officer performing his core functions would only be not criminally liable if he acted in good faith. We say that that really renders inutile the second limb of 208E because the jury would not need to consider if the conduct was reasonable, but only to consider whether he honestly believed he was performing the core function – honestly believed that that core function was being carried out in a particular manner – so it is an entirely subjective belief, as Justice Steward has pointed out.

Now, that is all I wish to say about ground 1. Could I move on to ground 2 which really flows on from ground 1. I am now on points 11 and 12 of the outline. The issue in ground 2 is simply what is the role of “purpose” in the construction and application of section 148B and we say its role is this: to determine whether an act is done in good faith it is necessary to identify the purpose for which the act was taken. That is in our written submissions at paragraph 72, based on that authority of Justice White in Campbell.

So the mere fact that an incident occurred in a continuum does not obviate the need to identify a purpose for the act and that is because the purpose can change during the course of a continuous event, so the original purpose may transform into a different purpose. If there are multiple purposes for doing the act and one or more of those purposes was extraneous to the exercise of a power or the performance of a function the jury must be directed that 148B would not apply if that extraneous purpose was a substantial purpose. If there were multiple purposes the only relevant purpose that could be taken into account was where a power was exercised under the Act. So, this is really to do with how a jury would be directed in relation to the construction of 148B.

GAGELER J: Mr Strickland, again this topic is directly addressed in Webster v Lampard at page 606. It would assist me though if you were saying something different from what is said there ‑ ‑ ‑

MR STRICKLAND: No, we are not, and we accept what your Honour ‑ ‑ ‑

EDELMAN J: Mr Strickland, if you are saying, or accepting, that Webster v Lampard really governs this provision, and the provision is not in altogether different terms in Webster v Lampard, then how do you deal with the question of onus because in Webster the good faith type elements of the section were ones about which the onus was on the party in the position of the Crown to negate, whereas the question of what was a performance of a duty, or here the purported performance of a duty, which picks up the requirements of an honest belief that what was being done was compliant with the broad requirements of the duty were elements for which the onus was upon the party asserting the defence. As I understand what your submission is it is that you want to put the onus of both upon the defendant.

MR STRICKLAND: Your Honour, to quote - in a sense, to pick up the language of Justice Dixon in Little and adapting it to 148B, once there is an evidentiary basis for a jury to find there is a reasonable possibility that an act was done in good faith in the exercise of a purported power, then the Crown must negative that reasonable possibility beyond reasonable doubt.

EDELMAN J: Yes, thank you.

MR STRICKLAND: Now, can I finally deal with the issue that perhaps looms largest in my learned friend’s submission which is why special leave ought not to be granted because there is really no material controversy between the parties and the matter is hypothetical. I have left that important matter till last because we say that it is important for the Court to understand why we say the construction of 148B was wrong before we can identify what the material controversy is.

KIEFEL CJ: Mr Strickland, that might be a convenient time for the Court to take its morning break.

AT 11.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

KIEFEL CJ: Yes, Mr Strickland.

MR STRICKLAND: There are just two further points I wish to make, and these are relevant to the issue of whether special leave ought to be granted. The first is what I might call the material.....point; the second is the hypothetical point. My learned friend says that because we accept that 148B could be engaged – your Honours, I pause because Mr Walker cannot hear us.

MR WALKER: Your Honours, the position is I can hear my friend, but I cannot see anyone. I do not know why. Your Honours, should I leave in order to re‑enter?

KIEFEL CJ: I think that is probably best, Mr Walker, and if that does not work, we will adjourn until you have an opportunity to try again.

MR WALKER: I am sorry, your Honours, thank you. Your Honours, I can see everyone, thank you.

KIEFEL CJ: Good. Thank you, Mr Walker. Yes, Mr Strickland.

MR STRICKLAND: I just wish to deal with two additional points, what I might call the materiality of the controversy and the issue of hypothetical. My learned friend - and this goes to the issue of special leave as to why we say it should be granted - says that there is no real material controversy between the parties because we accept that section 148B could be engaged. Our answer to that is the real controversy is how section 148B is to be engaged and how a jury must be directed in relation to that proper construction.

In our submission, there is a significant legal difference as to whether a jury would be directed about our construction of 148B as compared to the Full Court’s construction of 148B. So, if, for example, the Full Bench was correct and the jury was instructed, well, if you find there is a reasonable possibility that the firing of the fatal shots was done in good faith to protect life, to protect Mr Eberl’s life, that is, in my submission, a materially different way, materially different from directing a jury at what we say is the proper construction which is that if there is a reasonable possibility that the respondent in firing the shots had an honest belief both as to the purpose of the Act to arrest – the power of arrest, and an honest belief that the force used to effect the arrest was reasonable or to use preventing an offence, he had an honest belief that firing of the acts – firing of the fatal shots was necessary to prevent an offence and he honestly believed that the use of force to prevent the offence was reasonable, that is a radically different way from directing the jury in a way the Full Bench would have if the Full Bench’s construction was adopted.

We say that really is the end of what we call the material controversy between the parties. It is a significant legal difference and there is a real issue as to whether that legal difference may affect the outcome.

In terms of the issue of being hypothetical, we say that the controversy that we are asking this Court to determine is capable of a final answer and it is not contingent, although it is based upon the assumed facts as its foundational aspect, it does not depend upon the Court needing to accept whether there are any so‑called disputed facts. This Court has said in Bass v Permanent Trustee at paragraph 51 that the formulation of specific questions can be tried separately from and in advance of the issues at trial if it assists:

in the more efficient resolution of the matters in issue.

KIEFEL CJ: But this is not entirely akin to a demurrer, though, is it, Mr Strickland? This is not proceeding upon a real acceptance of the facts as stated. It is an assumption of facts, some of which, which we have discussed at the outset, might alter and it is also the position here that the controversy on one view has not as yet arisen and it will not unless and until the accused – the respondent seeks to take advantage of the statutory defence in section 148B. At the moment it is a possibility, it might even be more than that, but the controversy has not as yet arisen. Really, what the Court is being asked to do is to determine whether the defence in particular forms can go to the jury.

MR STRICKLAND: Your Honour, we accept that, although we say it is on the assumed facts as I have taken the Court to. That is why I took your Honours to the issue of, if I can go back to a matter which may not have appeared crystal clear from the statement of facts. I might take your Honours to the transcript of the body‑worn video, which is at core appeal book 35, where the respondent is saying – I read from a part of that core appeal book at 35 where the respondent is saying - and this is part of the assumed facts:

Just put your hands behind your back.

It is at about point 2 on the page. Then Walker goes on and Eberl says:

Stop it mate.

Then Walker goes:

Ahhh! Ahhh.

(SHOT FIRED)

WALKER: Ahhh!

A little further down the page at point 6, Eberl says:

Did you? Fuck!

Then Rolfe says:

It’s all good, he was stabbing me, he was stabbing me.

. . .

It’s all good. He’s got scissors in his hand, he was stabbing me, he was stabbing me.

KIEFEL CJ: You have taken us to this, Mr Strickland.

MR STRICKLAND: Because we say it is virtually an inevitability that the 148B issue will be raised given that material, your Honour. It is virtually an inevitability that the respondent will say, “I was engaged in arresting the respondent” or, “I was engaged in preventing an offence”, because that is the undisputed material that was before the Full Bench and before this Court.

I am taking your Honours to this material because we say it is far higher than a possibility that 148B will be engaged. We would say it is a virtual inevitability, given the uncontroversial facts as to the respondent’s purported state of mind immediately after the shooting. That is the relevance ‑ ‑ ‑

KIEFEL CJ: Mr Strickland, if I could take you to the second point, which is the question of law posed initially and then reformulated by the Full Court and then again alternatively reformulated by you in the application for special leave. It has always been rather enmeshed with the facts. It has never really been stated as a pure question of law. Perhaps the closest it has got to that is in your acceptance that, if it is reformulated as a question, does a function under section 148B of the Police Administration Act include the functions listed in section 5(2) of that Act and your suggested answer is no.

If it is reformulated in that way, that might overcome the problem that it is even to some extent fact dependent in the way in which, both initially and as redrawn by the Full Court, as I said, enmeshed with the facts. As reformulated in the application for special leave, do you say that is sufficient for the purposes of the trial, that that question be posed and that answer be given?

MR STRICKLAND: Yes, we do, your Honour. Can I elaborate briefly upon that in two different ways. First, when the matter was debated before the Full Bench when this very question arose that formulation that we have suggested was the subject of agreement between the Bench and counsel. Could I just take the Court to the core appeal book 56 and Mr Edwardson, QC raised the issue of whether the court should answer the question because of Bass v Permanent Trustee‑type matters. Mr Edwardson said – this is at core appeal book 56 about point 3:

the parties are and do seem to be in furious agreement in terms of the construction –

that is in relation to questions 1 and 4:

really where we part company is the focus on s 148B which is what I’m intending to address.

The Acting Chief Justice says:

Well, it’s really about 3 isn’t it?

. . .

And whether 5’s in or out?

. . .

in a sense there are some legal issues in 3 . . . But the question so far as that goes is really is 5, s 5 of the Police Administration Act in or out. The Crown says it’s out. The defence says it’s plainly in.

Now, we also at core appeal book 82 try to tease out the legal question – this is about point 5 – and I do not think I got it entirely right because I left out the word “function”, but it is the same point. We thought that the legal question on the run I posed was for the purposes of 148B that the powers referred to in that section include a power under section 5 of the Police Administration Act. As I say, it should have included “function”.

That was how the parties before the Full Bench sought to tease out the legal question. The reformulated question we accept is not one that ought to be have been asked by the Full Court, the reformulated question for the Full Court, and we would say that the question that we have suggested, as the Chief Justice has stated, would sufficiently overcome any concern about it being too fact specific.

GAGELER J: Mr Strickland, can I just ask a related question. We have been given these facts as assumed facts but is it sufficient for the purpose of the proceeding under section 21 of the Supreme Court Act that we treat these as facts that the Crown will seek to prove at the trial?

MR STRICKLAND: Yes, your Honour.

GAGELER J: Thank you.

MR STRICKLAND: Can I say, Justice Gageler, that is the approach – this is the last point I wish to make. It dovetails into that last point which is this is the approach that was taken by this Court in DPP v JM. Can I just finally take the Court to this and then I propose to finish. If the Court could go to page 332 of Part C of the appeal book, tab 13.

Now, this was a case where there was - section 21 of the Supreme Court Act bears some similarities although it is in wider terms than the relevant – than section 302 of the Criminal Procedure Act in Victoria which is set out at paragraph 15, 346 of the authorities book. That is the Criminal Procedure Act:

if a question of law arises before or during the trial, the court may reserve the question for determination –

Here in section 21 of the Supreme Court Act, the proceedings may be referred, it is not confined to a court of law. What is important about this case is that the case – the question that is formulated by Justice Weinberg is set out at paragraph 8 of the judgment, and the question he asks was described as the original question:

For the purpose of s 1041A of the Corporations Act 2001 (Cth), is the price of a share on the ASX which has been created or maintained by a transaction on the ASX that was carried out for the sole or dominant purpose of creating or maintaining a particular price . . . an ‘artificial price’?

We say that teases out the legal question in the same way as our question does. Importantly, that question was based upon – was able to be answered in the frame of what could be described as the facts stated. If the Court goes to paragraph 19 of that judgment, page 347, the Court states:

The case stated then set out a number of “facts”.

Justice Weinberg described the facts set out in the case:

as “factual assertions . . . established for the purpose of the Court of Appeal –

Some of those facts were accepted and some of them were disputed. You will see that in paragraphs 20 through to 22. Some of them were, as Justice Gageler said, facts that the prosecution intended to prove – that is at paragraph 24. At paragraph 35 of the judgment the Court held that the question that the question that Justice Weinberg sought to have answered under 302 of the criminal proceeding was not hypothetical, even though it was contingent upon the prosecution establishing the facts at trial to the requisite standard of proof and again said it was similar to a demurrer process at paragraphs 32 and 33.

We rely upon DPP v JM on the same - as being authority.....proposition that this Court can treat the assumed facts in the same way that Justice Weinberg treated the facts. They are facts that the prosecution.....to prove, but the question we are seeking to answer is not hypothetical, even though it is contingent on those facts.

KIEFEL CJ: That may be so, Mr Strickland, but there is a difference between the decision in JM I think and this case, as was pointed out at paragraph 28 that the question as stated as a question of law was apt to be applied to the facts of the particular case. The question as it was posed here, and answered, binds up the facts with the law and it is in truth not drafted so as to be applied to the particular facts as the prosecution may make them out. It is really for the purpose of determining the question whether or not on the facts as stated the matter can go to the jury. I think we are in different territory.

Now, that might not mean you are necessarily in the hypothetical area, but you may be in an area where it is a question whether special leave should be granted because this is something that this Court does not ordinarily do. It does not determine on assumed facts whether a matter is apt to go to a jury.

MR STRICKLAND: The first part of what your Honour said in reference to JM, I did not hear the reception, so I did not hear. Did your Honour refer to a particular paragraph?

KIEFEL CJ: Paragraph 28 where it says the question is one which is apt to be “applied to the facts of the particular case”, and I went on to say that is rather different from here because in the question as reformulated by the Full Court, and answered, the facts are so bound up with question of law that it is in truth not just – it would not involve this Court just answering a legal question which can be applied to what the prosecution makes out.

It is in truth providing an answer whether on these facts the matter can go to the jury, and that is a point of some distinction, I think. It may mean, as I might have heard – it may mean that we are not in the hypothetical area, but we may well be in an area where this Court needs to consider whether or not this is a matter appropriate for special leave.

On the other hand, it may be that in the way in which the Full Court has approached it that the Court cannot leave the matter to rest there because it creates a problem. So refusal may not be appropriate either. The answer might be in your reformulation, or the original formulation during the hearing, as you pointed out to us.

MR STRICKLAND: Your Honour, may we say, in our submission special leave ought not to be refused because the Full Bench did not formulate the question properly. The parties were not given an opportunity to consider that reformulated question. What we had the opportunity to do was to debate what that question would be. We, on the applicant’s side, sought to tease out the legal question. There was no resistance, as we understood it, to that legal question being posed. So in my submission special leave ought not to be refused because of that particular process.

But your Honours, more importantly, when one looks at the answer given by the Full Court, if I could ask the Court to turn to paragraph [204] of the plurality judgment at page 207, (a) certainly captures that answer, does capture the controversy between the parties and it captures ‑ the judgment of Justices Southwood and Mildren captured it in a similar way at paragraph [111] and [120].

I perhaps do not need to take the Court to that as it is not the relevant judgment, but we say that where the parties debated and crystallised the relevant legal issue, where the Full Bench answered that legal issue in terms of [204](a), where that legal issue will undoubtedly have a material effect on this trial and how the jury should be directed, where the trial is to be heard in a couple of months, in February, there is no basis, we say, to refuse special leave or no proper basis to refuse special leave when this controversy can be cured by reformulating the question that we proposed and then answering it in a way - giving it the proper construction of that section for the benefit of a proper trial.

They are our submissions in relation to why special leave should be granted. Unless there is anything else, they are my submissions, your Honours.

KIEFEL CJ: Yes, thank you, Mr Strickland. Yes, Mr Walker.

MR WALKER: Your Honours, for some little period I have been able to listen to everything but everyone I see is frozen in some former position. I have not been able to in fact see other than still photographs of everyone. I confess, I am quite unable myself to address . . . technically.

KIEFEL CJ: Would it assist if we adjourn for a short period so that you could communicate with the Court’s IT people to see whether we can resolve this?

MR WALKER: Yes. Thank you very much, your Honour. I am hoping it will be just a couple of minutes.

KIEFEL CJ: Yes. It would be preferable if we were not all frozen while you are speaking to us.

MR WALKER: Thank you.

KIEFEL CJ: The Court will adjourn.

AT 11.53 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.02 PM:

KIEFEL CJ: Yes, Mr Walker?

MR WALKER: Thank you very much, your Honours. Your Honours, may I start, as our outline shows us doing, with how our friends finished. The position is that our submissions on whether the Court should hear and determine the substance of the issue is simply an orthodox answer with respect to the grant of special leave to appeal. On any view, it is an appellate jurisdiction – and so the extent to which material departure from the course of proceedings below is appropriate for a grant of special leave is particularly germane in this case.

So, as your Honours have seen, we disavow any constitutionally based dispute of jurisdiction. There can be no doubt that everything that was done in the court – or indeed, the courts below – could not in any way be described as divorced or disassociated from any attempt to administer the law.

It has all been for the purposes of a pending trial, although of course, depending on whether one is the Crown or the trial judge, the junctures at which the answers by the Full Court might be availed of, will differ. For the Crown, it may determine the evidence led – for the trial judge, of course, it may assist in the question of a proper direction.

But, for both of those actors in the criminal trial which is pending, of course questions of evidence to be led, or indeed whether any defence evidence.....of defence evidence – will depend upon events as they unfold, which can be neither usefully assumed or agreed and have not been assumed in a demurrer sense in this case.

In relation to a trial judge, of course, the direction to be given to the jury in due course must be shaped by the forensic course, including the course of the evidence and arguable matters of fact. In light of that none of those junctures has been achieved yet. It is in that sense devoid of a constitutional resonance that we have used the familiar language of advisory opinion or hypothetical question – hypothetical in the same way that in a commercial case, a matter of breach of contract may be hypothetical if the question of causation of any loss has been determined against the applicant for special leave and not itself a matter fit for special leave.

Your Honours, at the outset then, one goes to the course of proceedings below which commenced with the reference to the Full Court in the common appeal book at page 10. As it then took form, your Honours see three questions. Questions 1 and 2, we had thought, up until a short while ago, had fallen away.

But it may be – and I will return to this when seeking to construe section 148B of the Police Administration Act - that some of our learned friend’s submissions in address seek to revisit whether there is a limitation of some of the key terms in that provision to officers or persons other than police officers. If so, then.....relevance of some or other of questions 1 and 2 – but at the moment, as we had principally understood, questions 1 and 2, both answered negatively, have fallen away and are not the subject of any controversy sought to be ventilated in this Court.

Question 3, as your Honours know, suffered judicial redrafting about whatever questions there may be it is not in itself a step in the proceedings which is raised by the Crown as ground 4, let alone the object of the application for special leave that is the redrafting in the Full Court.

As originally drafted your Honours have already gathered, with great respect, that the reference there to the assumed facts is a reference to facts not agreed in what might be called a demurrer fashion and certainly not binding either of the parties, the Crown and the accused, to any particular step, or restraining any step, from being taken during the course of evidence and, for that matter, in the devising of arguments to a jury based upon the evidence.

It was a question that was asked in terms obviously intended to reflect the possible meaning of section 148B, by which I mean there was a controversy, of course the Crown accepted, that from all appearances of the forensic exchanges to date the accused harboured a different view of the availability of section 148 to protect him from criminal liability from that which apparently informed the position taken by the Crown because sooner or later it would devolve on the trial judge eventually to give directions to the jury binding them on matters of law.

Your Honours can.....from the courts below that question 3 was thought useful to be determined before a jury was empanelled. If your Honours go in the book to page 49 you will see the addition of so‑called question 4, the interrogatory part of which is in its last sentence, relevantly is a defence so‑called:

under s 148B . . . potentially open –

and the adverb of course gives away the provisional nature of the possible application of an answer one way or the other:

in light of s 208E –

a matter of interaction to which my learned friend turned towards the end of his address. There is also added, but not so dwelled on by our learned friend in address, the possibility of the raising by the accused of the so‑called defence provided by s 43BD, self‑defence meaning defence of self or another as well. I will be coming briefly back to that in terms of the interpretative arguments which form the substance of the controversy.

In the core appeal book if your Honours would then please to go to page 223, the answers to questions are given for reasons that are published, and your Honours see the negative answers – that is, favourably I suppose to the scope of the forensic position of the accused – and the answer to question 4 is yes, which is equally favourable to the accused in terms of the scope of argument available on his behalf.

As we understand it, notwithstanding what may have been revisited perhaps by implication and not intentionally in relation to questions 1 and 2, it is only the redrafted question 3 which is the object of the special leave application and of the attendant substantive argument of law on so‑called assumed facts before this Court.

Now, passing again over the fact that this is a redrafted question, as redrafted your Honours can see the evident intent of members of the Full Court, including the referring judge, as it happens, to assist the trial judge by reason of the phrase found in the redrafting “would it be open to a jury to find”, a form of words that is obviously calculated to render useful for the purposes, among other things, of eventually directing the jury.

In our submission, that really should be seen as the end of the matter so far as subject matter of a special leave application is concerned. The question asked is not one of the parties’ appeal grounds which can and should be subject to appropriate adjustment in the process of considering and granting special leave to appeal and, indeed, exceptionally during the course of an appeal if special leave were granted. Rather, that is the question that was asked and answered. That should be regarded in terms of the appropriateness of the now presented arguments for a grant of special leave to appeal to this Court of the position now sought to be put by the Crown.

It is in that sense that, in our submission, this is a very good – by which we mean egregious – example of threatened fragmentation of criminal process of the kind that usually, in nearly every case it can be said, this Court would tend strongly against. The appeal to the possibility that there might be a verdict, and from the Crown’s point of view a verdict leading to an acquittal that is wrong is in itself, of course, not seriously to be considered as a reason crying out for a grant of special leave to appeal, otherwise it is difficult to understand ‑ ‑ ‑

GAGELER J: Mr Walker, does the judgment of the Court of Appeal create an issue estoppel binding on the parties in the trial as to the scope of the reference to “function” in section 148B of the Act?

MR WALKER: No. Unquestionably the matter is complicated by, I think, three circumstances. The first is that all of this is based upon assumed facts. I have said enough about that for present purposes. The second is that neither the question nor its answer in terms involves the closing off of other possible ways of section 148B arising for the jury’s consideration, to adapt the language of the question.

It seems that question 3 would either authoritatively guide or, if it be different, provide a finding binding between the parties to the proceedings subject only to appeal, issue estoppel if one likes. With respect to section 148B not arising for the jury’s consideration, so against the prosecution, the scope of its forensic conduct, there may be that binding effect.

Then the next complication, of course, is that, as my learned friend has properly drawn to attention and which is common ground between the parties, the reasons for judgment of course include the matter which was to the forefront of the special leave application, at least when originally made, namely the resort in the interpretation of section 148B by their Honours to section 5.

In our submission, it is perhaps pushing to the outermost the notion of issue estoppel to regard the abstract question of whether section 5 informs the interpretation of section 148B as being something which is, as it were, now precluded from any further argument to or fro when the judge in due course prepares to give directions to the jury as to what is open for them to find and how they should proceed as a matter of law.

That is a very long answer in an attempt to deal with the question, which we find difficult, posed by Justice Gageler. The difficulty comes from the sequence that I have traced through question, answer and the reasons to the extent that section 5 in particular figures in them.

Your Honour’s question in particular focused on the notion or the concept of function, which of course is an expression found in section 148B, also as it happens in section 5 and its mother provisions to which we will be coming. I have tried to answer I think by focusing on the resort that is plainly had, among other things, in the context of the statute by their Honours in the Full Court to the notion of “function” in section 148B being informed by the notion of “function” in section 5.

Your Honours, I will not take it as a bodily response to my argument, but all your Honours are frozen again. I am sorry.

KIEFEL CJ: Well, we should adjourn again to see if we can do something about that connection. The Court will adjourn.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.33 PM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. Your Honours, I was in the course of saying that it cannot be a proper reason to grant special leave that there is the possibility that a verdict of acquittal following – a verdict of not guilty leading to the entry of an acquittal may have been based upon an error otherwise there is no real explanation for the familiar legislated appeals within criminal proceedings following an acquittal so as to correct error without disturbing acquittals.

In our submission, there is nothing more than a grievance by the Crown to the effect that there was an erroneous basis, at least one, for answers given to we think only one question, we think – only one question, 3, and that there ought to be, therefore, a second appeal notwithstanding that the first proceeding is before a Full Bench, that is, an appeal from the Full Bench.

That, in our submission, is an argument which is entirely counter to the usual expectation that criminal proceedings should not be fragmented. It would be to fragment for every preliminary question of that kind to be a candidate for special leave to appeal to this Court. The second point, more specifically, about this case as your Honours will have gathered is that it is clearly an appropriate ‑ ‑ ‑

EDELMAN J: Sorry, Mr Walker, just before you move on to the second point, the longstanding rule that this Court does not fragment the criminal process by grants of special leave in the usual course is one which has to be understood now, does it not, against the background of legislation in a number of States which have decided which pretrial issues are matters from which an appeal can be brought prior to a decision of a jury and which are matters from which no appeal can be brought. I am talking about an appeal to an intermediate appellate court.

MR WALKER: That is correct, but that still leaves, of course, open the question as to why this Court should so entrench upon, with respect, the salutary policy against fragmentation of criminal process by stepping into a breach, so‑called, left by a State or Territory legislative gap that would be entirely inappropriate to the position of this Court in the country’s judicature, in our submission.

EDELMAN J: I suppose the question I am asking is whether the fragmentation issue is really as black and white as it used to be or whether one really needs to look at what the particular issue is that might fragment the appeal or the criminal trial process, and in relation to that issue what the position of the legislature has been as to whether or not appeals can be brought in those circumstances and other circumstances where appeals cannot be brought.

MR WALKER: Yes. Well, with respect, the effect or spectacle of fragmentation is black and white. As your Honour correctly puts it, with respect, the setting against which related or relevant legislation such as those regulating the possibility of interlocutory appeals in criminal process is apt to add some shades of grey, but the fragmentation is still a very clear and unmistakable effect. That effect, in itself, is that which conduces against the grant of special leave, bearing in mind that it is obviously for the responsible legislatures to regulate the availability conditions and effects of interlocutory appeals, that is before the verdict of a jury.

The fact that there are possibilities of what I will call appellate proceedings, usually otherwise titled, but in the same proceedings following an acquittal which do not have the effect of disturbing the acquittal, only underlines that it is not, with respect, necessary in the interests of justice or for the purposes of the administration of justice that this Court supply the position of an interlocutory appellate court for criminal proceedings in which procedures such as the referral to the Full Court, as occurred in this case, have produced an outcome binding on a trial court.

Now, it is for those reasons, in our submission, that generally speaking – my first point about special leave – this is not a case that is apt for special leave. But when one goes to the particular aspect of this case, namely the transmogrification of the interlocutory issues referred to the Full Court then, in our submission, real doubt must tend the propriety – I should not say propriety – I mean the appropriateness of granting special leave to entertain a reframed question other than the question as it was, in the words of their Honours, redrafted in the Full Court.

For the reasons I have already put that is a question which, having been answered, does not or should not excite in this Court a fear that the administration of justice will be mis‑served by this Court failing to turn its own consideration to the questions of substance addressed in the Full Court.

Could I remind your Honours that although section 208E of the Criminal Code has been called in aid in the arguments that your Honours have heard from our friends concerning the interpretation of section 148B of the Police Administration Act, it is of course not the only other provision which has an important role to play in the future conduct of these trial proceedings. Your Honours are aware that section 43BD of the Criminal Code has also been raised in such a way as to add content to the issues upon which the Crown will bear ultimately the onus of proof to displace self‑defence or defence of another on the conditions stipulated by section 43BD, including reasonableness, beyond reasonable doubt.

So the issue that arises under section 148B is not in isolation in the pending trial. There is not only 208E, there is also 43BD, and your Honours know that each of those involve questions where community standards are applied through the prism of the reasonableness which informs each of those provisions.

The question therefore comes down, as we have put in our propositions 3 and 4 in the outline, to the arguable relation between those provisions. Now, one starts with the truism that they are both provisions which, at least by ordinary meaning, that is, a literal understanding of the enacted words, fall to be considered for their possible application in a case such as the present.

It is equally obvious, as we put in proposition 3, from again a straightforward literal understanding of the word “enacted” in each of section 148B and 208E, that they operate differently: good faith in the first; reasonableness in the second. For the reasons my learned friend has we think put in his own argument in common with us, it would be ridiculous to suppose that questions going to reasonableness would be regarded as irrelevant to questions of good faith. The relation is such that though reasonableness is not necessary for good faith, an adjudication of extreme unreasonableness may obviously inform the jury decision in light of all the evidence concerning whether good faith has also been excluded beyond reasonable doubt.

We think that, so far as these being issues in this case, the matter is clear if only by the fact that there was a referral of the questions in their original or transmogrified form – that is, there is no question that the first gate has been gone through, namely the expected issues in the case such as in due course and subject to the evidence as actually given, such as to raise for consideration by the trial judge directing the jury with respect to section 148B, as well as with respect to section 208E, as well as with respect to 43BD.

It is for those reasons, in our submission, that there should be an avoidance of treating section 148B as if it introduces some alien and jarring element in the jury adjudication at hand. We, of course, are not in a position to detract at all from the language with which our friend has fairly described the significance of the case, but that is social significance, not to be deprecated in the atmosphere of a special leave applicant but of course not in itself informative one way or the other as a matter of statutory interpretation were special leave to be granted as a matter of substance considered on an appeal.

Our present point is that there is nothing in the text nor the legislative history, to which I am going to come separately, of section 148B suggesting that a homicide by a police shooting in the course of a fracas upon an attempted arrest, nor the indigenous identification of the person killed could affect, one way or the other, a view of how the statutory provisions in question are to be construed. Those provisions are, in an intellectual sense, indifferent to the characters in that regard of the person killed.

Now, the argument concerning rendering section 208E inutile, by which we understand our friends to mean that the consideration of section 148B would swamp and render redundant any consideration of section 208E, is called in aid by what must be construing the later, that is, the 2016 section 148B because that is when the amendment introduced the relevant provisions, as if it were to be read so as not to have affected by its enactment through amendment the meaning of operation of existing provisions such as section 208E.

In our submission, that is a proposition which is not capable of acceptance in what I might call its most general or abstracted fashion, not least because it would run up against the usual preference in canons of interpretation for the later and more specific enactment to, if anything, impliedly repeal inconsistent aspects or understandings of earlier pre‑existing provisions.

But without leading the.....acts of implied repeal, we are as we try to point out in proposition 4, we are in the position to say that nothing in the enacted words - and I am now talking about the statutory text - of either of those provisions suggests by a syllable that section 148B must be read down or differently from an ordinary or literal meaning in order to avoid having some effect on section 208E either as to its meaning, which is not really in point in this case, or as to its usefulness of application by, as it happens, an accused person in this case.

So that the oddity is presented that, as it were, in the interests of accuseds being able to resort to section 208E, it should be understood that against the interests of accuseds, section 148B should somehow be read differently from the way the literal words would suggest. In our submission, that would be a most unsafe way to proceed to construe two provisions in the statutes of a jurisdiction, they being different statutes directed at probably similar spheres of operation, here the administration of criminal justice with respect to the conduct of police officers, because it is clear, with respect, and notwithstanding everything pointed to in the legislative history for the amendment of section 148B, that section 148B as amended was intended to provide what I will describe in colloquial terms as protection for police officers. I am trying to choose a neutral expression so as to avoid the necessary technicalities of speaking of defences in criminal statutes, et cetera.

But by a protection, I also mean to avoid using the perhaps not very useful expression “immunity”. The language of section 148B and we accept, as it happens, also the language of section 208E is language designed to map out the territory covered by the offence provision in question. They may be a number of offence provisions, obviously.....answering protections in the Criminal Code and in the Police Administration Act, both supplied.

In mapping out the territory, with respect, there is therefore the designation of the area within which conduct can constitute an offence calling for criminal punishment upon conviction. That, of course, is precisely the matter about which – unless extremely plain words of a kind not found here were used – the firm placement of the ultimate onus on the Crown cannot be mistaken.

There is no issue between the parties before your Honours that the onus is firmly – ultimately – based upon the Crown to exclude beyond reasonable doubt the elements not only that might make out a section 208E answer, but also the elements that would make out a section 148B answer.

There is no question in this case of course that – to use the jargon that the matters under both of those provisions, and for that matter, under section 43BD as well – have been well and truly raised by discharging what is sometimes called an evidentiary burden, if your Honours will forgive me at this preliminary stage of talking about an evidentiary burden being discharged before a word of evidence has been admitted before a jury that has not yet been empowered – without repeating my opening argument.

It is for those reasons that we put in proposition 4 that there is simply no textual or purposive reason, including to be gathered from the legislative history, as to why the ‑ embraced within the words used in the amended section 148B of “police officers”, who are persons, should not be regarded as effective, that is, revealing a statutory intention within the meaning that intention bears as a matter of statutory interpretation to afford protection to police officers as to other persons within the ambit of section 148B.

Now, your Honours are aware from the way in which we seek to put the matter in proposition 5 that we invoke the purported exercise of power on purported performance of function.....of course actual exercise or actual performance as indicating the intended and, with respect, beneficial ambit of the protection intended to be given to persons who as to some of them in many contexts within both provisions will be subject to what has been called the agony of the moment, as this case, with its split second chronology, provides by way of a very clear and illustrative example.

KIEFEL CJ: I see the time, Mr Walker. It might be a convenient time ‑ ‑ ‑

MR WALKER: I am so sorry, your Honour.

KIEFEL CJ: The Court will adjourn until 2.15.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. At the end of our proposition 5, we refer to conduct of likely central relevance to the pending trial, namely arrest by a police officer pursuant to a warrant, the prevention of offences and the protection of life. We submit that those are matters which are intrinsically within the powers and functions of a police officer and, indeed, very largely so as a matter of antecedent common law.

What we have, of course, governing this case is the clarity of the following statutory structure, these being an excursion through the Police Administration Act which is for the purposes of both propositions 5 and 6 in our outline. Your Honours are aware that the definition of “police force” unusefully directs one to its establishment in section 5, upon which I need not dwell, though I would come back of course to section 5(2) which is at the heart of the matter.

The police force thus established is constituted under section 6 and one sees that that is constituted by members, one of whom is a commissioner. To the Commissioner under section 14 is given control and management of the police force and the Commissioner is understood to be a person – see section 14(2) - with powers and functions, as one would expect.

KIEFEL CJ: Mr Walker, if, as you say, arrest pursuant to warrant, prevention of offences and protection of life are intrinsically within the powers and functions of a police officer as recognised by the common law, is the only real point of difference then between your client and the Crown where it arises? So on the Crown’s case it arises under section 25 and in your case it arises under section 5.

MR WALKER: In part, or subject to a large qualification, yes. We do not say it is only under section 5 at all. We call in aid other provisions as well.

KIEFEL CJ: What does section 5 give you that section 25 does not on what appear to be now, if not concessions, recognition by the Crown of how section 25 operates?

MR WALKER: We suspect nothing. We suspect in this case, this trial as pending on what is likely to be, though it cannot be guaranteed to be the evidence at the point for the jury is directed, there does not seem to be anything more than that. Now, it is true ‑ ‑ ‑

GORDON J: I am sorry, Mr Walker, can you just explain what is “more than that”?

MR WALKER: That is, more than the fact that whether under section 25 - or I will throw in section 124 or section 5, whichever one or more of those might be invoked, we submit that we do not need any more than the sufficiency of one or more of those provisions to engage 148B for the appropriateness of the jury being directed as to its possible application depending upon the jury’s view of the facts being the proper way for the trial to be conducted.

GORDON J: But there is a distinction between you, is there not, on the way in which one reads the functions? So, under 25 as I understand the Crown case, the Crown accepts that they, consistent with the way in which it has been set out in Webster that you bring to account, in effect, either by way of good faith or otherwise, the knowledge of the actor so the conduct must be reasonable, or to pick up the language which is in the top of page 606, believing they are acting within the limits of the authority conferred. You do not read section 5 in that way?

MR WALKER: No, it is 148B that would involve, just like 208E, what might be called the primary holding in Webster v Lampard. Of course, 148B, as I think my friend has made clear, recognises by its explicit inclusion of “purported exercise or purported performance” that there is availability of the answer to criminal liability supplied by a good faith but mistaken or, as it is sometimes put in related areas, an honest but mistaken view.

GORDON J: I am sorry, Mr Walker, my question was probably misconceived. My point is that you do not accept that the section 5 powers or functions are subject to the limitations that were agreed to by the Crown in relation to 25, or do you?

MR WALKER: I think we probably do. I may be misunderstanding, for which I apologise.

GORDON J: It is all right, sorry, Mr Walker. One can take section 5 and one can ask oneself when one reads things like - which are in very general language - to “protect life and property”, do you read that as the common law attaching to it all of its conditions that would ordinarily attach to it or do you read it as some broader function and power?

MR WALKER: The core functions to protect life and property no doubt involve in an unexceptionable fashion implied powers – that is, Parliament will not be understood to have enacted a function for a police force with members who have express powers and functions, the function of protecting life and property but without any means of doing so. However, the antecedent common law obviously supplies its own limitations.

One of the limitations is definitional and it has to do with pretence, so while pretending to protect life, administer lethal force to another person. If it was a true pretence then of course that is a form of administrative corruption and certainly no answer would be provided to criminal liability.

But if there was a mistaken view, formed, for example, in the agony of the moment by what might be glimpsed of a number of persons involved in, say, what appears to be a deadly fracas, that some conduct is appropriate in order to protect life, none of this being the subject of ordered reflection in legal chambers but rather split‑second calculations by a police officer sworn to the duty then, in our submission, it is clear that both the common law and statutory interpretation would require, if you like, by way of limitation that there needs to be a genuine belief in the reason one is undertaking conduct, in the example I have deliberately selected, to protect life, but you may be wrong in the sense that what you perceive to be a deadly fracas is nothing other than some horseplay.

That would be mistaken, to use the language of Webster v Lampard, and it would be in good faith. Of course, 148B ensures that there will not be the removal of protection from somebody who cannot, as it turns out, make out that they were exercising a certain power or function because the facts were not as they were mistakenly perceived to be.

Nonetheless, the state of mind, call it good faith, obviously shows that there is a purported performance or exercise on foot. It is for those reasons that in our submission section 5 simply cannot be dissevered, but we are putting that section 5 is, as it were, a..... There are no banners being waved in accordance with section 5(2) in order to protect officers who do not have the relevant state of mind, that having the relevant state of mind, according to a jury adjudication will be necessary.

It is necessary under either 148B good faith or under 208 reasonableness, but for the reasons set out in Webster v Lampard, proper allowance needs to be made so far as the interpretation of enacted provisions permits for the role of mistake, which, as we all know, never negatives good faith. It does not always necessarily negative reasonableness, subject of course to the genesis of the mistake.

STEWARD J: Mr Walker, I am sorry to interrupt, but can I just, for the sake of my own clarification, ask you whether - take the function of arrest – whether arising under section 5 in more generic terms, or under section 25 – do you accept the proposition put by Mr Strickland that the police officer must honestly believe that they are using reasonable force for the purposes of arrest?

MR WALKER: I am not sure that will be a critical question in every case but, as a general proposition, it is a composite concept, the use of reasonable force to effect an arrest – they are not separated matters – and the good faith – where good faith is the requisite state of mind – must of course address itself to the composite state of mind.

In other words, it is not possible to imagine that either the common law or Parliament has posited the notion of a state of mind of intention to arrest and then, quite separately, a state of mind to twist somebody’s arm up behind their back, for example. It is a composite and – at least in general terms – and I have to be cautious because individual cases may throw up – needs to revisit this – it means, my answer to Justice Steward is yes.

We say the whole composite of the intended arrest by the means that both the common law and a deal of regulatory provision makes available, namely reasonable force, is part and parcel of the same matter to which the mind of the accused needs to have been applied – or more accurately, in a criminal case, where the Crown needs to exclude that that was the case. Now, your Honours ‑ ‑ ‑

GORDON J: Mr Walker, may I just ask one related question and then I will stop. Does that mean that you accept – at the top of page 606 – that it usually suffices for the purposes of such a provision – and here we might use 148B – that the person invoking the defence genuinely but mistakenly believed that he or she was acting within the limits of the authority expressly or impliedly conferred by the relevant statutory provision or office – or here, we would add the common law?

MR WALKER: Yes. May I add an explanation why that clearly must be so. It is not, in our submission, juristically sensible to talk about a power without considering its limits. When you describe a power, you are saying something about where it is available, and where it is not – in other words, the limit.

The definition of a power is of course not only etymologically but functionally about limits and so, of course, when considering a state of mind about the exercise of a power, including in the context where it will suffice for it to have been the purported exercise of a power, consideration of limit must be involved, otherwise a person would say – impossibly, we would submit – I assert that in good faith I am now about to exercise a power, which I appreciate is limited in a certain fashion, and I have either not given any real thought or I have actually come up with a negative answer to the question whether what I propose to do will be outside the limits of power. Those are impossible propositions to entertain, properly at the same time. So, the answer again to Justice Gordon is yes.

EDELMAN J: Mr Walker, can I just ask whether these questions arise under the sort of the heading or the banner of “good faith” or whether they arise under the banner of whether what is being done is a purported exercise of the power. I mean, it seems to me that Webster v Lampard treats these types of issues, putting aside questions of malice or conscious bad intentions, as issues relating to the purported or actual exercise of the power. The reason obviously that it is important is it depends on who bears the onus of proof.

MR WALKER: Yes, is the answer. Though the word I think is not used in the passage to which your Honour’s questions have been directed, following their Honours’ warning about reducing the protection to the state of being illusory there is a reference to a genuine but mistaken belief that the person invoking the defence was acting within the limits of the authority. That is a very straightforward description of people purporting to act within a power, though being mistaken in that regard.

So it is definitely a matter that can be understood in connection with the extension of protection to purported performance and exercise but, of course, and not coincidentally, it is also part and parcel of the factual consideration of good faith. It may be ‑ ‑ ‑

EDELMAN J: But the onus would be on an accused person to show those matters to bring himself or herself within the concept of a purported exercise of power before the onus then shifts to the Crown to show that there was a lack of good faith.

MR WALKER: Your Honour, in this case the parties have both proceeded on the basis that it is a matter, if you like, for the accused, but it really means for the facts in the case as they strike the trial judge at the appropriate time or times as to whether the question, say, of 148B has been raised, a familiar aspect of a criminal trial, not confined of course to statutory protections like 148B. Then it would be of course the ultimate onus, as I have called it, on the Crown to displace beyond reasonable doubt the application of the protection, including by reference to the state of mind.

I think Justice Edelman may have been asking me to consider as well whether there is a more formal – as one sometimes sees enacted in criminal protections for accused persons – a formal substantive onus of proof which subsists throughout the proceedings on the balance of probabilities, normally it is enacted, lying on the accused. Your Honours are familiar with a number of statutory offences which have appended the possibility of answers available to an accused so long as the accused succeeds in proving it on the balance of probabilities.

Now, that is not the position that we understand the Crown takes in this case. It is certainly not the position we understand to be the case. This is rather in the general category of answers, whether they be self‑defence or accident, et cetera, where the case has to be such as to make it appropriate for the matter to be left to the jury and that can involve, as it were, some work by the accused or those on the accused’s behalf, but thereafter the ultimate onus rests completely on the Crown.

That is not an issue we think. Whatever differences there may be in those possibilities, that is not an issue before the Court today, and was not obviously the subject of any question referred to the Full Court, let alone answers given for reasons supplied by the Full Court.

Your Honours, I was about to say in relation to section 5, my shorthand combination of sections 25, 124, 125, 126, should not disguise the fact that section 25 of course does not in terms say anything direct about 148B or its meaning. It does, however, use expressions which are not the same but need to be understood as part of the context of the use of the expressions “power” and “function” in 148B. So section 25 requires – that is, it is an obligation under a statute to perform duties and obligations.

It is also a statutory prescription to have powers and privileges, as are by any law, which obviously includes this statute itself, conferred or imposed on.....who is the member, and importantly commences “Subject to this Act”, which is an ambulatory provision which will capture obviously amendments to the Act from time to time such as the 2016 amendment to 148B. To say that one is to perform duties subject to 148B is to say that you perform those duties with the potential of protection if tragedies occur, as might be supplied by 148B according to a jury assessment of the position.

Your Honours are aware that the same words “power” and “function” as are found in 148B are also found in the stipulation of the requisite oath before a member embarks upon his or her work as a police officer in section 26(1), using a slightly different combination of words, “powers, functions or duties”, again being referred to as “conferred or imposed . . . by a law”.

One then comes to the provisions of section 124 concerning arrest where there has been a warrant issued. Your Honours know that that is the narrative that will most likely be before the jury in this case where there is clearly a power enacted under subsection (1). I apologise to my friends if I have mistaken the matter, but we had understood that the clarity with which our friends have taken the position that it may be, depending upon the facts, that 148B should be the subject of direction to the jury as to its possible availability, arises largely because of the simplicity of the position under section 124(1).

Now there are cognate provisions, upon which I need not dwell, all granting powers such as section 126. It is as this point that one can return to section 5(2) to note that we are plainly not talking about mutually exclusive universes of reference between the specific provisions such as 25, 124, 126, et cetera, to which I have referred, and those matters set out in section 5(2).

There is a difference, of course, including the level of generality involved or, if you like, the level of specificity of the later provisions to which I have referred, or to use one that is very specific – I do not need to take your Honours to it but I give you the reference – subsection (1) of section 116G, where those advising the legislature obviously thought highly specific provision should be made of a kind that echoes section 148B with respect to the harm that may be done by the use of dogs and horses.

All of them, however, are in the universe of what police officers, being members of the police force, are assigned by their statutory appointment to do. That is why, in our submission, when construing the evident purpose of providing a measure of regulated protection for members in relation to whom the possibility of criminal liability arises, to note what the core functions of the police force, which is constituted by the members, are; or, to put it another way, given the generality of the expression “functions” referred to in section 148B, it is impossible to understand why one would avert one’s eyes from section 5(2) in order to understand contextually the meaning of section 148B.

That is why, in our submission, the end of our proposition 5 and the whole of our proposition 6, one has to remember that the force is constituted by members who are individuals who are sworn to exercise powers and functions and who have certain specific powers and functions granted by some of the provisions of which I have supplied some illustrations.

EDELMAN J: Mr Walker, assuming for a moment that everything you have said is correct, is there still not a question, when one approaches section 148B, of what level of generality one characterises any particular act that is done allegedly in the exercise of a power or the performance of a function? For instance, does one characterise a particular act as done in the exercise of a power or performance of a function as the function of arrest or does one characterise it at the higher level of generality with which section 5 is concerned, and how would that question be answered?

MR WALKER: It is answered by what I might call – I hope not wrongly – a functional perhaps purposive understanding of 148B, which is to provide protection for a person who might be considered to be a prospective accused or has become an accused, against criminal liability. Immediately, therefore, one has supplied the requirement for the application for provision that that which is protected against is liability for something which has constituted an offence. Thus, there is no difficulty in this case in positing that the conduct subject to these provisions, which are sometimes not helpfully called immunities, needs to be conduct which might otherwise infringe a person’s rights or interests rather than conduct which is not of its nature calculated to do so.

So, there is no question that 148B is entirely occupying the territory of providing an answer by way of protection to a person accused of having done something which constitutes a criminal offence but for that protection available to that accused in those circumstances bearing that.....to a jury verdict.

GORDON J: Mr Walker, I understand that is the argument, but what do you do with (2)(c), for example, to prevent an offence? Is that different from the common law power to prevent an offence which is subject to the use of reasonable force?

MR WALKER: No, we make no bones about it and I would imagine I would be enthusiastically joined in by my learned friend here that it would be bizarre and shocking to construe 5(2)(c) as having removed the limitation of reasonableness from the force by law available to exercise the function of preventing offences.

GORDON J: Well then, why do you need it in 25 when you accept that 25 picks up the statutory and common law powers. Why would you have it twice?

MR WALKER: If your Honour is asking me about 25 ‑ ‑ ‑

GORDON J: I am asking about a comparison between 25 and 5. If you accept that 5, for example, to pick one element, to prevent an offence, is subject to the common law restrictions then why do you need that when 25 does it automatically? You accept 25 picks up the statutory powers and the common law powers, subject to restriction?

MR WALKER: Yes, of course, but your Honour was asking me why does one need that in 5, the answer is full coherence. You cannot have 5 meaning power without limit and 25 meaning power with limit. Plainly, the functions do not extend beyond doing things which are within power. That would be intolerable.

GORDON J: So, therefore, section 5 adds nothing to 25, for your purposes?

MR WALKER: I suppose one could put it around the other way as well. You have it in 5 and in 25 and specifically for our case in 124.

KEANE J: Mr Walker, is not the upshot of the discussion you are having at the moment that when one looks at the actual answer to question 3 that the Full Court gave, the answer to that does not change from yes to no just because the relevant provision conferring the function is section 5(2) or section 25.

MR WALKER: Or section 124 at a specific ‑ ‑ ‑

KEANE J: Or section 124. The answer to the question that the Full Court answered is still yes and ‑ ‑ ‑

MR WALKER: Quite so, and that is when – I am so sorry, your Honour. That is why when answering Justice Gageler’s question about issue estoppel I drew to attention what I think I called the third difficulty arising from resort to the reasons for the answer. But yes, I agree with what Justice.....has put to me.

KEANE J: The other observation one might make is that whatever the force of Webster v Lampard as a guide to assisting one to determine whether a particular purpose has been pursued in good faith, the question that has come up is not going to produce an answer that determines that for this case.

MR WALKER: No, we entirely embrace that. Indeed, that is why I started by submitting your Honours should not grant special leave for an appeal from something which does not purport and should not be understood as now permitting what might be called a comprehensive survey in prospect with presumably contingencies to be considered in relation to what may happen before the charge to the jury is given concerning every aspect of 148B. When I say “every aspect of” I mean its held connection with section 5, its held connection with other provisions and its common ground conceded connection with, say, section 124.

This Court is not being enlisted, as it were, on a referral pretrial to vet in advance and provide, as it were, guidance to the trial judge, again contingently on how evidence may turn out, with respect to directions concerning protective provisions available to our client, let alone one specific protective provision, namely, 148B. That, in our submission, is best and in a most appropriate principled fashion, determined by refusing special leave.

If special leave were granted the appeal nonetheless should proceed by way of an appeal from what the Full Court did without adding an assignment the Full Court was never given as one for this Court in a kind of phantom original jurisdiction, or worse, a phantom statutory jurisdiction that your Honours have never been given and may not want, namely, to be a first‑stop appeal for interlocutory preliminary questions in relation to pending criminal trials.

Now, when one then comes to consider the role of section 5, returning to the question of the level of generality in question, my point is that 148B necessarily involves attention to the conduct alleged to constitute an offence and the need, either as a matter of statutory common law, or in many cases both, as in this case, concerning arrest, the need for there to be identified, raised by the accused so as to give content to the onus of the Crown, the availability, at least potentially, of an answer referring to the exercise of powers, including the purported exercise of powers, and the same with functions.

In our submission, that means that there will be no difference, let alone difficulty, arising from the obvious higher level of generality to be seen in section 5(2) compared with even section 5 – 25, which is still very general, and certainly with the provision right at the heart of this case, section 124, which is relatively specific though covering a lot of the work that a lot of police officers do a lot of the time.

Now, it is for those reasons, in our submission, that there will have to be consideration given of a kind that cannot possibly be anticipated in this proposed appellate argument before the evidence is in and before a trial judge decides on his or her charge to the jury on the facts as fairly available given the evidence and possible arguments at the juncture before the jury is sent out and for those reasons, in our submission, there is no interpretive crux thrown up by the self‑evident difference as one might expect from their placement in the statute between the general core functions as they are expressed in section 5(2) and provisions such as, I repeat, section 124.

It is clear that section 124 is one of the ways by which offences can be prevented as well as obviously one of the ways in which there can be prosecution in the absence obviously of in absentia trials. It is equally true that the arrest of a person about to commit an offence of a deadly kind will fit a protection of life function as well. So the question is whether there is something deceptive on the face of the verbal identity between “function” in section 5 and “function” in section 148B. It cannot be that the epithet “core” changes what is otherwise a function into something that is not a function.

GAGELER J: Mr Walker, can I just understand your response to the argument put against you in reliance on Ardouin.

MR WALKER: Yes.

GAGELER J: Is it simply that you read, or would have us read, section 5(2) as a source of coercive power, or is there something more to it?

MR WALKER: There is something more to it. Functions and powers are obviously related to each other in this sense, that one cannot exercise functions without exercising powers. That is, there must be the means to produce an end. That is why it is commonplace to find implied powers by the express imposition of a function.

GAGELER J: Well, if one is a natural person, Mr Walker, one can do the things that a natural person does in the performance of functions without necessarily exercising what would ordinarily be called a power, and that is the point about ‑ ‑ ‑

MR WALKER: That is quite right, your Honour, and I entirely accept that. We are talking here about provisions which are deemed necessary in order to regulate both in favour of the public interest in the punishment of crime and the public interest in the appropriate consideration for officers appointed to exert force, for example, for the public good and Ardouin requires, of course, that the provisions be understood as applying where the protected conduct is conduct which, but for the protection, would infringe rights or interests.

Plainly, that is completely true in this case and in other cases of which it might be emblematic – namely, the application of force of a kind that lacking justification would be a serious offence. It follows that the question which arises is whether a function of the protection of another’s life is conduct, the criminal liability for which can be as well regulated by 148B, given its terms, and the terms of section 5, as by the provisions of section 43BD.

In our submission, the terms of the provisions that we have been seeking to construe answer that plainly or, to put it another way, it would be most undesirable to introduce subtleties from interstitial reading of those provisions to deny that protection. There is no evident matter of policy of a deep legal kind, let alone purpose from the enacted words, by which one would remove the combination – and it is not the only combination – of 148B and 5 from the available answers for an accused.

We have other combinations – 148B and 124. I do not want to return to that theme against special leave, but in our submission when Justice Gageler asked me about coercive powers, if I understand that to mean, for example, the exertion of force that would require justification in order not to be a tort or a crime, then yes, and that is why it is important that 5 is read, as one would expect it, subject to the implications of law involved in the notion of preventing crime. You do not prevent crime from killing everybody you believe is genetically inclined to commit crime.

GLEESON J: Mr Walker, the interpretation that you are putting at the moment is not entirely consistent with that of the majority of the Northern Territory court, is it? I am looking particularly at paragraph 185 of their reasons at appeal book 199. I do not read their reasons to incorporate that kind of limitation on the powers in section 5.

MR WALKER: I do not think, with respect, there is any way of reading that – I think your Honour is referring to paragraph 185 - there is nothing there suggestive of the notion that the words of section 5 describing “core functions” are words that expound the notion that those functions are imposed on the police force or given to the police force as core functions bereft of any of what I might call civilised limitation.

GLEESON J: There is nothing there to say that they are subject to those civilised limitations, is there?

MR WALKER: Except contextually from the subject matter. It simply cannot be supposed that one can construe those words as having no limitation beyond asking.....expedient fashion, will doing this to this person prevent crime? Your Honour obviously appreciates.....preventive detention is a matter of the most fraught socio‑political and jurisprudential concern. The notion that section 5 on its face imposes a core function under general expressions of preventive detention is, in our submission, to be rejected as soon as it is raised.

In other words, read as a whole, this is a statute for the administration of the police. These core functions are to be understood as being exercised lawfully there being an antecedent common law and other provisions and the one I am very interested in is section 124, obviously, concerning arrest.

It is not suggested that section 124 is not also to be understood in terms of limitations that apply with respect to the reasonable exercise of power, it being unthinkable that Parliament has expressly authorised the unreasonable exertion of force. That is my attempted answer to Justice Gleeson to this effect, no, we do not understand that we are putting anything materially different from the way in which the Full Court proceeded to reason.

EDELMAN J: Mr Walker, can I ask you then about the example that the Full Court gives at paragraph [188], at the bottom of page 200 to the top of 201, where they refer to Mr Strickland’s example of:

a hypothetical case of a police officer going to absurd lengths to “maintain social order” and committing an offence in the process.

At [189], they go on to say that:

While there is some force in that argument –

and then I interpolate that they reject it because:

the plain words of s 148B compel the conclusion that the protection from criminal and civil liability conferred by that section does extend to acts done . . . in the performance of the functions ‑ ‑ ‑

MR WALKER: Which begs the question – I am so sorry, your Honour – which begs the question obviously, does performance of the functions in section 5 extend to the compulsory convening of instruction in – I do not know – the tenets of Maoism as one officer’s view of how one would maintain social order.

Now, that is the problem with illustrations, as their Honours well appreciated below, as your Honours must be warily appreciative of yourselves. No, one does not construe a statute absurdly – and maintaining social order is about as high a level of generality and abstraction as one can imagine with respect to police, but it has a conventional and well‑established use semantically in this area. Hence, for example, the American constitutional term “the police powers” which, of course, extends well beyond matters before the constabulary.

So, there are differences between levels of generality and the attention of the common law to the engagement in of conduct by police officers as between the different paragraphs of section 5(2) protecting life as an obvious relation to other express provisions such as self‑defence or defence of another.

In our submission, it would appear to be anti‑purposive and non‑protective in a bewildering way for a person – a police officer who has engaged in conduct – maybe mistakenly – it does not matter whether mistakenly or not – that is the point – maybe mistakenly – in order to protect another – should not be able to avail himself or herself of section 148B and neither, for the reasons we have put at proposition 7 is there any difficulty with applying section 148B alongside the other provisions to which I have already made sufficient reference.

GORDON J: Mr Walker, may I just ask one question, so I am clear – to clarify the answers you gave to both Justice Gleeson and to Justice Edelman? I had understood that counsel in the Full Court had put that when you read section 148B and section 5 together, there was – as I understood his submission – no imputation of any test of reasonableness because he read the section 5 functions as broader than those contained in section 25.

MR WALKER: Section 25 does not say anything more than section 5 does, with respect, your Honour.

GORDON J: I did not ask you that. I asked you whether that was a submission put to the Full Court below.

MR WALKER: Your Honour, going on the reasons, I think the answer is no, but ‑ ‑ ‑

GORDON J: I had in mind particularly application book 72 where counsel – and I just want to make sure I understand because I think it might provide an explanation of why the Full Court addressed it the way it did. It said – this is dealing with 148:

does not impute any test . . . sorry, does not impute any test of reasonableness. It simply requires that Mr Rolfe believed he was acting in good faith -

and then went on to compare it with 208E and the other defence.

MR WALKER: That comment about point 4 on that page.....I think that is a reference to 148B and, if one likes, a Webster v Lampard reading of it, that says nothing about – I do not read that as saying that section 5 has as a core function the engagement in the conduct which is unreasonable purportedly to protect life. Rather, that one may be mistaken but if acting in good faith with respect to the exercise of, say, a function under section 5, then there will be 148B protection.

I certainly do not read that submission as saying that section 5 is devoid of what might be called readings of lawfulness. This is a context, the Police Administration Act, in which one would not expect to be finding unlimited licence to engage in physical violence, including lethal violence. That is just unthinkable and, as a matter of subject matter, can be rejected in relation to section 5, and the notion of having a core function of doing something so appalling is itself a wrong approach to perceiving the intention of a legislature.

Finally, then, your Honours appreciate that we say that these proceedings are now at a point where they are truly allowed to proceed to the trial which has been fixed. It is, in our submission, a case where the matters which have been raised are not matters which can be seen in any sense to be critical – I stress the word “critical” – to the proper conduct of criminal proceedings which ideally should not be further fragmented.

There are jury questions raised. They do not all depend upon our arguments about section 5, and they may, in our submission, therefore properly be allowed to continue to whatever outcome those proceedings will produce. May it please the Court.

KIEFEL CJ: Yes, thank you, Mr Walker. Mr Strickland, any reply.

MR STRICKLAND: Yes, please. Your Honours, there was nothing in the respondent’s arguments before the Full Bench and there was nothing in the Full Bench’s judgment in relation to the construction of section 148B in which section 5 was read down in the appropriate manner in which my learned friend now reads down section 5. The respondent below submitted plainly that section 148 only required an honest belief and that reasonableness was not a relevant requirement of good faith, and the Full Bench embraced that submission.

KIEFEL CJ: Mr Strickland, be that as it may, I think it is fair to say that your argument has somewhat developed and been refined since the Full Court as well. The position we are now in is that it seems to be the case that the answer to the question would not.....we are talking really about the identified sources - section 5 or 25.

MR STRICKLAND: Your Honour, I do not make the point about – and I was not making the point to make some cheap tactical point about change of position because I acknowledge that the parties have developed their position as the arguments have been refined, as often happens. The submission I make, your Honours, is that the arguments by the respondent below were accepted, particularly at paragraph [220] of the Full Bench’s decision and that is significant in terms of whether special leave should be granted, if I could develop why.

Can I just take the Court to paragraph [220] of the Full Bench’s decision at 214, and that was in contrasting section 208E about the different standards that apply for what is described as the immunity. Section 203E is described quite correctly as applying where there is no criminal responsibility if the conduct is reasonable and:

s 148B provides that a person to whom the section applies will not be criminally liable if they are acting in good faith ‑ that is to say, honestly.

There is no reading at all in the Full Bench’s judgment that section 5 incorporates what is described as civilised limitations or incorporates reasonableness. There is nothing in the Full Bench that indicates that if you incorporate the prevention of an offence, and one uses force, that there must be reasonable force. So that means, your Honour, that if special leave was refused the trial judge would be bound by a judgment which neither party now accepts.

KIEFEL CJ: Mr Strickland, the difficulty, though, is that the application for special leave is from the orders of the Court. What you are saying is that there should be a grant of special leave to correct the reasons.

MR STRICKLAND: No, your Honour, we do not say that. We do not say that at all. We say, and it gets back to what is the proper question that ought to have been formulated by the Full Bench. What Justice Keane has said in questions is quite right, that the answer to question 3 does not change depending upon whether the source of power is section 5 or 25, but we have made clear from the outset, including in the special leave application, that the proper question that the Full Bench said it was going to grapple with and did grapple with was a different question, which is whether section 148B included the functions of section 5(2).

KIEFEL CJ: So your application for special leave is not based upon the question that the Full Bench answered, it is based upon the formulation that was made by counsel during argument before it which appears as your alternative reformulation in the application for special leave?

MR STRICKLAND: That is exactly right, your Honour. So, we say it cannot be what my learned friend says, the end of the matter for the purposes of special leave that the question that has gone to this Court because it can be answered yes either way that that is a basis to refuse special leave. That, in my submission, would be artificial and it would be unfair.

It is artificial because that is not the way the matter was argued below. It is artificial because that is not the answer that the Full Bench gave in paragraph [204](a). It is artificial and now, and particularly now, given my learned friend’s very proper analysis of how section 5 incorporates the civilised limitations or it incorporates concepts of reasonableness. It would be quite artificial to refuse special leave when there is an acceptance that section 5 should not be read as the Full Bench read it.

It would mean that the trial would go ahead on a basis that is acknowledged as being at the very best incomplete. So we say the answer to the dilemma - or the conundrum is that the Court should answer the question that was formulated. Can I just take the Court – I am sorry, we have formulated that question at the special leave application itself at core appeal book 228.

That is the reformulated question. We set out at footnote 8 in core appeal book 230 the procedural problems which led to the reformulated question. We say that we have properly raised, at the special leave application itself, what is the actual legal controversy between the parties.

KIEFEL CJ: As reformulated, that question does not address questions such as what “good faith” means in its application in this case and it does not discuss the limitations of reasonableness for the common law in section 25. You said earlier, in answer to a question I put to you, that the reformulated question relating to a function, and section 5(2), was sufficient for the Crown’s purposes. Is that still the case?

MR STRICKLAND: Not entirely, your Honour. We say the reformulated question ‑ ‑ ‑

KIEFEL CJ: I am not sure you can do this in reply, Mr Strickland.

MR STRICKLAND: Excuse me, your Honour.

KIEFEL CJ: Are you going to reformulate the question again?

MR STRICKLAND: No, no, we are not, we are not at all. We say – no, we are not, your Honour, we say that question is the appropriate question, and we say that we have given the answer to the question, and we say that, in judgment, it should be made clear that ‑ ‑ ‑

EDELMAN J: Mr Strickland, as I understand it, if Mr Walker’s argument is correct, and at the moment I do not understand you to be disputing that functions need to be read with, as you say, all of the civilised limitations that come within the implied powers to which they are subject, then the answer to the question you are posing is not the answer that you would give. The answer would be yes.

MR STRICKLAND: Well, your Honour, if the answer is yes, then it should be made clear that section 5(2) should be read down as containing the limitation because as it currently stands what the Full – if the Court accepts the submission that I have made that the Full Bench does not in any way construe 14B, particularly section 5, with the relevant limitations then, left uncorrected, the trial judge will be bound by a – the trial judge will not be bound by the statements made by my learned friend. The trial judge will be bound by the statements of the Full Bench where the question of reasonableness, where the submissions about reasonableness that were made by the respondent were accepted, which is that it had no place.

So we say that, consistent with the decision in JM, that the reformulated question we have put in our special leave application can be answered. It can be answered one of two ways. Either the answer is no, and indeed our primary submission, your Honours – we say that section 5 on its terms does not incorporate common law concepts of the common law limitations. It does not say so in terms, but if it is to be read down in the way Mr Walker has suggested – and, as I say, this is the first time that section 5(2) has ever been read down in that way as per the respondent’s submissions.

Can I just indicate that in the respondent’s written submissions, if I can take the Court to that at paragraph 39, the third last line says:

Reasonableness is not necessary for the defence, but it is unlikely that unreasonableness could be regarded as definitionally irrelevant ‑

KIEFEL CJ: Mr Strickland, if as I understand your primary position, the question is as you reformulated for special leave and the answer is no, would that not to be useful have to be qualified by saying something like but the powers of arrest or prevention of crime and perhaps protection of human life arise under the common law and therefore section 25 to which section 148B applies?

MR STRICKLAND: Yes, your Honour, we would accept that entirely. Can I just say something else about fragmentation. First, in answer to Justice Gageler’s question, “Does the ruling create issue estoppel?”, we say that the ruling provided by the Full Court has produced a binding judgment on the trial judge. It cannot be reagitated below.

Section 21 of the Supreme Court Act provides that, upon referral, the court must give an order or direction and that order or direction is obviously binding on the trial judge. So the answer at paragraph [204](a) that section 25 or section 148B incorporates the 5(2) core objective cannot be reagitated, in my submission. That would be inconsistent with section 21 of the Supreme Court Act.

Finally, in terms of fragmentation – perhaps I should say penultimately in terms of fragmentation, we respectfully agree with the observation made by Justice Edelman that the legislation has changed, or the landscape has changed since the principle in Elliott. In this case, fragmentation has occurred already because Justice Mildren has referred the matter under section 21(1). Section 21(1) is an indication that Parliament has accepted that the case can be delayed or fragmented whilst the matter is referred to the Full Bench.

Finally, and this is relevant to the special leave issue as well as the construction of section 148B, my learned friend has contended that you would not read section 148B differently from the literal words because it would render section 208 inutile. That submission assumes that the text of 148B does literally mean that function includes core function. We do not submit that you would read down 148B because of its effect on section 208E. Our submission is there was no intention compiled at either in the language of 148B or the extrinsic material suggest that 148B would be given the width that the Full Bench, in fact, gave it. That is clear from the judgment – from the paragraphs of Justice Gordon – I think it was Justice Gordon took my learned friend to at paragraph I think it is 198 of the judgment.

Your Honour, if a jury was directed according to the Full Bench’s construction then the jury would be directed, but if they found as a reasonable possibility that the respondent fired the shots in good faith to protect Mr Eberl’s life then he must be acquitted. Accordingly, if that were the direction the jury would never need to consider the community standard of reasonableness either in statute or at common law. That is whether firing those shots was reasonable as per section 208 or whether firing the shots was a reasonable response in the circumstances he perceived it, section 208, section 43BD or whether the prevention of the use of force and the prevention of offence was reasonable under the common law. They would never need to consider any of those questions.

KIEFEL CJ: Mr Strickland, just so I am clear about the matter, are you saying that the common law, which section 25 recognises – I understand you are saying they are subject to the common law limitations of reasonableness – but you also, I think, said earlier today that they are subject to the good faith requirement of section 148B. You are saying, I understand it, that those questions of powers whilst falling under the protection of 148B would be both subject to good faith and reasonableness, is that what you are saying?

MR STRICKLAND: No, your Honour. What we are saying is if the Full Bench’s construction was applied, it would be required to be applied by the trial judge, the jury would be directed, but if they found there is a reasonable possibility that the respondent fired the fatal shots in good faith to protect Mr Eberl’s life then that would be sufficient to grant an acquittal.

They would not therefore need to consider the standards of reasonableness either at statute or common law. We say that the issue of good faith – our construction of good faith, if goes to whether in good faith he was exercising the relevant power and whether he was – the means to exercise that power were reasonable.

EDELMAN J: Mr Strickland, can I just ask you one point about the textual approach that you take? Is it right to say that you effectively read 148B(1) when it says:

in the exercise of a power or performance of a function ‑

as meaning “in the exercise of a power in the performance of a function”, in other words that it is always the powers that one is concerned with rather than the functions, if those functions can be understood independently of the powers?

MR STRICKLAND: Your Honour, I must confess not to fully understanding your Honour’s question, and I apologise for that.

EDELMAN J: Well, Mr Walker makes the textual point that the reference to “performance of a function” picks up all functions, including core functions.

MR STRICKLAND: Yes.

EDELMAN J: You would dispute that ‑ ‑ ‑

MR STRICKLAND: Yes.

EDELMAN J: ‑ ‑ ‑ but textually, it says:

power or performance of a function –

And what I am asking is whether you read those words as meaning the exercise of a power in the performance of a function, in other words, the focus is only upon the powers.

MR STRICKLAND: No, your Honour, we do not. We read:

exercise, of a power –

as being a separate concept from:

performance, of a function –

and we say that is clear from, I think, section 148B(3), from memory, which is to discriminate between:

purported exercise of the power.

And:

purported performance of the function.

Now, both power and function are both subject to the conferral of ‑ or statutory conferral.

EDELMAN J: So, how then do you exclude section 5? The words are there:

good faith in the exercise of a power or performance of a function –

How do you exclude the words “or performance of a function”?

MR STRICKLAND: No, we do not exclude “or performance of a function”. As I understand it, we do not exclude that. We simply say that the word “function” does not pick up “core functions” in section 5(2). I do not know if that answers your Honour’s question.

EDELMAN J: No, I understand that, thank you.

MR STRICKLAND: Could I just get back finally to why we say special leave should be granted, and that is because if it is the case that the trial judge applying the Full Bench’s decision does not import the notion of reasonableness at any stage in the test under section 148B - and that is how, in my submission, the Full Bench decision should be read, there was no mention at all that these civilised limitations are important - then the trial will proceed on a basis that the parties now accept is an incorrect construction of section 5(2).

We do not invoke the fact that this is a murder case of national prominence on the basis of the construction of – it is not relevant to the construction of the provisions that my learned friend says, but it is relevant, that is, the - we are not dealing, as in Elliott, with an evidentiary issue, or an insider trading case, we are dealing with how the jury should be directed on a critical issue. We are asking the Court to intervene to resolve a critical issue in accordance with the reformulated question in circumstances where the fragmentation has been allowed under section 21 and, for that reason, we say special leave should be granted.

KIEFEL CJ: Mr Strickland, are you able to point to any case in this Court where this Court has granted special leave and dealt with a case on the basis of how a jury should be directed before the trial has commenced, or even during a trial?

MR STRICKLAND: Your Honour, JM, in my submission, is close to it because JM does tease out the relevant legal issue, which ‑ ‑ ‑

KIEFEL CJ: Yes, but that determined how the law as held would apply to the facts which the prosecution would make out. This, as you have clearly said, is about how the jury should be directed about whether a defence is available. I am not aware of any case in this Court where the Court has undertaken this task.

MR STRICKLAND: Your Honour, nor am I. However, we say that we are not far removed at all from JM because, although it is about how a jury should be directed, ultimately it turns on how should the statutory defence be construed.

KIEFEL CJ: But that will commonly be the case, Mr Strickland.

MR STRICKLAND: The answer to your Honour’s question is no, I do not have any precedent, but we say it is close to or akin to the decision in JM and the circumstances of this case, that all the unique reasons we have identified warrant the grant of special leave. Those are my submissions.

KIEFEL CJ: Yes, thank you, Mr Strickland. Mr Walker, do you wish to be heard further in relation to the reformulated question?

MR WALKER: I certainly do. May I start by rebutting the notion that we have altered our position from the way in which my learned friend Mr Edwardson argued it below or we have advanced at any stage here. In particular, may I dispel any notion that there is sweet concord between us concerning the need for reasonableness in relation to conduct in order for section 148B to be successfully invoked. I have never said that and there seems to have been some grievous misunderstanding of the concessions, I would have thought uncontroversial and obvious, concerning the meaning of section 5.

Mr Edwardson never argued that the core functions of the Northern Territory Police Force include the unreasonable exertion of force to protect a life, for example. It is too absurd for words. Of course, if there be a power to do something which itself is limited by reasonableness, something that I hope happily is mostly the case with the police, then section 148B is there for the unfortunate cases where that limit on power has been exceeded but there has been good faith conduct according to a jury assessment.

Section 148B operates differently, as we have always argued, from the way in which a reasonableness limitation applies to the exercise of power. That is why purported performance is necessary and appropriate and probably would have been implied in any event, see Webster v Lampard 148B. There has been no change whatever in our position.

It is for those reasons, in our submission, that any reformulation is inappropriate for a grant of special leave or appellate intervention. For what it is worth, and I do not suggest that my words as counsel have any standing anywhere after I have uttered them and they have been considered by your Honours, but of course it is clear that there will be no possibility of a serious suggestion that say the power under section 124 is available notwithstanding the means adopted are outrageous or unreasonable. No one has ever suggested that, that is an unreal, fantastic possibility. There should be no opportunity for reformulating questions in order to obtain special leave to deal with a matter which is not a live controversy. May it please your Honours.

KIEFEL CJ: Yes, thank you, Mr Walker. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 3.37 PM THE MATTER WAS ADJOURNED