Police powers on trial

Rolfe could ‘avoid liability’ for death: Crown

TERRITORY cop Zach Rolfe “could avoid liability for the murder of an Indigenous man” regardless of whether his actions were reasonable unless a legal ruling is overturned, prosecutors have told Australia’s highest court.

Mr Rolfe is due to face trial in the NT Supreme Court next year over the shooting death of 19-year-old Kumanjayi Walker in an arrest gone wrong in Yuendumu in 2019.

But the case is on hold, pending an appeal to the High Court relating to an immunity from criminal liability for police officers acting in “good faith” in the performance of their duties under the Police Administration Act (PAA).

In submissions tendered to the High Court before a hearing next month, Crown prosecutor Philip Strickland SC said the NT Full Court’s interpretation of the law in question gave officers “unfettered protection”, unbound by any legal limits on police powers.

“As construed by the Full Court, section 148B provides a complete defence to any civil or criminal liability for any police officer acting, or purporting to act, in the course of any of the wide-ranging and broadly described core functions in (the PAA), with the only limitation being that the police officer acts in ‘good faith’,” Mr Strickland said.

“Such a construction is not consistent with the language and purpose of the specific provisions in (the Act) or the common law, which impose express limitations on police powers and functions such as through the use of ‘reasonable force’.”

In reply, Mr Rolfe’s lawyer Bret Walker SC argued that while “reasonableness is not necessary” for the immunity to apply, the question of reasonableness was not “irrelevant to the question of good faith”.

“The requirement for a police officer to be acting in good faith provides protection against the unwarranted application of this statutory defence and is an answer to the appellant’s contention that to permit the (interpretation) applied by the Full Court would eviscerate protections against the alleged unlawful actions of police or emasculate the careful protection that the law offers citizens against excessive police force,” Mr Walker said.

“Section 148B does no more than afford the respondent police officer a defence such that it justifies the conduct by acknowledging the invariably difficult role of a police officer.

“That is no different from the existence of circumstances in the law where conduct that is usually a criminal act is justifiable, including justifiable homicide, such as cases of selfdefence.”

The case returns to the High Court on November 2.