R v Rolfe - [2021] HCATrans 145

[2021] HCATrans 145

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
Application for special leave to appeal

KIEFEL CJ
KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 10 SEPTEMBER 2021, AT 9.39 AM

KIEFEL CJ: In accordance with the protocol relating to remote hearings I will announce the appearances.

MR P.M. STRICKLAND, SC appears with MS S.G. CALLAN, SC, MS J.R. POOLE 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 Bentley)

KIEFEL CJ: Yes, Mr Strickland.

MR STRICKLAND: Your Honours, ground 1 concerns the ambit of the protection in section 148B of the Police Administration Act. That provision is set out in your Honours’ application book at 235. The issue is whether the phrase in section 148B - an act in the performance or purported performance of a function under the Act – incorporates the core functions of the police force set out in section 5(2) of the Act, and that is set out in application book 233. You will note that that section is not a definitional section, but falls under Part II, Division 1, headed “Establishment of Police Force”, and the Court will observe that the core functions set out in section 5(2) are very broadly expressed. That is the key legal issue, the construction of that phrase, which is critical to the Full Bench’s answer to the reformulated question 3, which I will come back to.

KIEFEL CJ: Your essential point, Mr Strickland, is that section 5 is a power that is given collectively to the police rather than to an individual. Is that right?

MR STRICKLAND: That is correct, your Honour. The ratio of the plurality commences at application book 190, paragraph [180] of the judgment, where the Full Bench found that:

the protection afforded by s 148B does extend to the performance of –

if I can insert the word “core:

the functions in PAA s 5.

The plurality states that it is fortified by the decision in South Australia of Lumsden v Police, where Justice Stanley states, at the very bottom of application book 190, that:

Section 65 is a beneficial provision –

which of course is to be construed broadly. It is our submission that this immunity provision, 148B, should be interpreted strictly or jealously, so as to confine the scope of the immunity, so as not to derogate from the rights of citizens who are subject to what would otherwise be criminal acts by police officers.

KIEFEL CJ: Mr Strickland, the decision in Lumsden v Police was made in 2019. How does the timing of that fit with the enactment of section 148 in the Northern Territory?

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] HCATrans 145
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of R v Rolfe, a case concerning the prosecution of a police officer for murder. The dispute arose from the shooting death of an Indigenous man in the Northern Territory. The central question before the High Court was whether the trial judge had erred in law in discharging the jury and entering a verdict of not guilty.

The High Court was required to determine whether the trial judge had the power to discharge the jury and enter a verdict of not guilty in the circumstances of the trial, and if so, whether that power had been exercised correctly. This involved an examination of the principles governing the discharge of a jury and the entry of a verdict by a judge in a criminal trial, particularly in relation to the defence of self-defence.

The Court reasoned that a judge has the power to discharge a jury and enter a verdict of not guilty only in exceptional circumstances, such as where there is no evidence upon which a reasonable jury, properly instructed, could convict. In this instance, the High Court found that there was evidence upon which a jury could have convicted the accused of murder, and therefore, the trial judge had erred in discharging the jury and entering a verdict of not guilty. The legal principle applied was that a judge should not usurp the function of the jury by withdrawing a case from their consideration unless there is a complete absence of evidence to support a conviction.

Consequently, the High Court allowed the appeal, quashed the verdict of not guilty entered by the trial judge, and ordered that a new trial be held.

Orders