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

Copyright in the High Court of Australia

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?

MR STRICKLAND:   I am sorry, Chief Justice.  I did not hear the tail of that question.

KIEFEL CJ:   I am sorry.  I am interested in the timing of the decision in Lumsden v Police in connection with the enactment of section 148B in the Northern Territory.  I take it that the decision had been pronounced  before section 148B was enacted.

MR STRICKLAND:   No, your Honour.  Section 148B was enacted in 2016 and commenced in 2018, I believe.  So it was enacted before the decision in Lumsden was handed down.

KIEFEL CJ:   But after the South Australian provisions were enacted.

MR STRICKLAND:   Correct.

KIEFEL CJ:   Thank you. 

MR STRICKLAND:   Paragraph [181] of the plurality’s judgment held that:

It can hardly be doubted, for example, that s 148B was intended to provide immunity from criminal liability –

again in relation to – I am adding the words “core function”, being:

the function of investigating an offence, or trying to prevent a crime.

Likewise, in paragraph [182] the Full Bench states again:

How can it be doubted that s 148B was intended to apply to a member of the Police Force –

to protect life, another core function.

GLEESON J:   Mr Strickland, did the majority, in construing section 148B, consider whether the core functions required statutory authority?

MR STRICKLAND:   No, they did not, your Honour.  Paragraph [183] is illustrative because the Full Bench found that it gained - it took comfort from section 26 of the Police Administration Act, which is a provision whereby police officers cannot perform duties unless they take an oath as prescribed, and it is our contention that that bespeaks error, because section 26 does not confer any function on a member, it merely is a precondition to the exercise of a power or function by a member.

This ground does raise a matter of public importance.  It does so because, our contention is, 148B does not have the width given to it by the Full Court, that width being that a police officer who does not act in good faith in performance, or purported performance, of a function, of the very broadly described functions would be completely protected from criminal or civil liability.

KIEFEL CJ:   Mr Strickland, in the way in which question 3 was answered by the Full Court, the question whether a particular function was being exercised, and the question whether it was being exercised in good faith, are left as questions for the jury.  Our task is simply to construe section 148B to see if those questions are open to the jury.

MR STRICKLAND:   That is exactly so.

KEANE J:   Mr Strickland, can I ask you, do you accept that section 148B does apply to individual police officers?

MR STRICKLAND:   Yes, your Honour.

KEANE J:   Given your fundamental proposition, which is that the functions set out in section 5(2) are functions that are functions of the police force as a collective, how does section 148B have an operation in relation to individual police officers?

MR STRICKLAND:   It has an operation by virtue of picking up and incorporating section 25 of the Act.  Could I take the Court to that section.  That is application book 234.  So that is headed “Function of members” and that section provides that – is that section which confers functions – although it does not use the word “functions” in the body of the section, but the word “duties” is synonymous.  It confers functions and powers, duties, conferred “by any law in force in the Territory” which of course includes the Police Administration Act itself. 

In particular, your Honour, it is Part VII of the Police Administration Act which confers specific powers on the police, and those powers are confined in particular ways.  It also confers functions on persons.  I am going to come back to how Part VII, Division 7, is relevant to interpretation of performance of a function.  So, Justice Keane, if I can come back to your Honour’s question when I deal with the legislative history of section 148B.

KEANE J:   Sure.

MR STRICKLAND:   Thank you.  Just to get back to the public importance of the issue raised, it is helpfully raised by the rhetorical question of the Full Bench at paragraph [182]:

How can it be doubted that s 148B was intended to apply to a member –

engaged in protecting a person’s life? The answer to that rhetorical question is this. If the Full Bench is correct, the respondent may be acquitted of murder without the jury considering whether the act of firing shots two and three were reasonable in the circumstances, and that would be a significant departure from the criminal law. It would erode also the principle of self‑defence embodied in section 43BD of the Criminal Code, which imports concepts of reasonableness.

The decision of the Full Bench has significant implications for the appropriate controls or limits or restraints in the exercise of police powers or the performance of police functions, particularly in relation to the use of force by police against citizens.  I am instructed that there were two cases in South Australia in which a defence under section 65 of the Police Act, referred to in Lumsden, which is the somewhat equivalent of section 148B, cases in South Australia have arisen, which have been adjourned pending the outcome of the decision in this Court.  I am instructed that the South Australian Director of Public Prosecutions will probably seek leave to intervene if special leave is granted. 

Before I take the Court to the Full Bench’s answer at question 3, I think it would be useful to briefly take the Court to some of the key facts, or the key assumed facts, which were before the Full Court, to make sense of the finding of the Full Bench in relation to the answer to question 3.  Could I take the Court to application book 122.  Before the Full Bench were assumed facts, as well as body‑worn videos and transcripts of those body‑worn videos.

In brief, the respondent was a police officer from Alice Springs who was tasked to go to go to Yuendumu, which is a small town near Alice Springs, to arrest the deceased.  At paragraph [18] of application book 122, the assumed facts were cited, that when entering a house at Yuendumu, the respondent asked the deceased to put his hands behind his back and the deceased stabbed the respondent on his shoulders with some scissors that were secreted in the deceased’s hand.  The respondent fired one shot into the middle region of the deceased’s back.  That first shot was not fatal.  It is not the subject of any charge.

Now, the body‑worn video, which was viewed by the Full Bench, and you will not find this in the assumed facts, this is in the body‑worn, but the body‑worn video shows that after the first shot, the deceased and the respondent’s colleague, Constable Eberl, fell to the ground on a mattress.  Constable Eberl was on top of the upper body of the deceased, pinning him down on the mattress on the floor.

Then, going back to application book 123, paragraph [20], the respondent, after the deceased was pinned down on the floor, the respondent stood over the deceased, put his hand on Constable Eberl’s body, and about two and a half seconds after the first shot fired the next two shots in quick succession, about five centimetres from the deceased.  Those second and third shots are the subject of a charge.  There is no issue in this case that the respondent shot the deceased and there is no issue that one or both of those shots caused the deceased’s death.  The only issue in the case is one of justification.  That is the context. 

If I can now turn to the finding or the ratio or the answer to the question is at application book 200.  At paragraph [204], the plurality found at (a) - we say that finding was in error, that is, the protection under 148B we say does not extend to acts done in performance of core functions, and we say that 148B is also in error in that on the assumed facts it was not open for the jury to find that the respondent was purported to perform a function of preventing the commission of an offence, that is, a core function which we say falls outside the ambit of 148B, and it would not be open for the jury to find that the respondent was performing a function of protecting a life.  That also is a core function outside the ambit of 148B.

KIEFEL CJ:   That covers the exercise of the power of arrest which is - what do you say to that?

MR STRICKLAND:   Well, we say to that that we do not concede on the assumed facts that arise, but we did concede at the Full Bench and we concede now that once all the evidence is concluded, it may be the case that that matter does fall within the ambit of section 148B because that is a specific power under the Act, that is, a power under section 124 of the Police Administration Act. 

If I can go finally to the judgment of Justices Southward and Mildren, because they pithily express the critical issue in the case.  If the Court can go to application book 163, the Full Bench, having discussed the core function of protecting life, states:

that if the second and third shots can be isolated, and the defendant fired those shots to defend Constable Eberl, those acts fall within the protection of s 148B of the Act so long as he genuinely believed it was necessary to fire the second and third shots to do so.  The defendant was under a duty to prevent an attack on Constable Eberl and save his life.

That finding pithily illustrates the point that the respondent may be acquitted of murder without the jury considering whether the firing of those second and third shots were reasonable in the circumstances to defend Constable Eberl’s life.

KEANE J:   But you accept, do you, that the jury would have to find that the incident did not occur in the performance of the function of arrest?

MR STRICKLAND:   That is correct.  We accept that.  Can I turn now to why we say the Full Bench erred and it can be expressed briefly thus.  If Parliament had intended to expand the ambit of section 148B in the manner held by the Full Bench ‑ that is, to incorporate section 5 core functions – Parliament would have used clear language in the terms of the section.  It would have been clear from the statute context and it would have been clear or reflected at least in the extrinsic material, such as the second reading speech or the explanatory memorandum.

First, in terms of textual analysis, if I can ask the Court to go back to the terms of 148B, at 235 of the application book.  We say that 148B refers to an act done in the exercise of a power or in the performance of a function.  What the Full Bench has done is to treat section 5(2), the core functions, as a definitional section whereby a function is defined as a core function.  We say that is wrong.  Section 5(2) simply sets out the broad objectives or purposes of the police force.  Secondly, in terms of contextual analysis ‑ ‑ ‑

KIEFEL CJ:   Mr Strickland, I am having a difficulty with this.  Section 148B refers to functions under the Act.  Section 5 uses the same language, “function”, but identifies those which are at the heart of the policing powers, the policing functions, the core functions, but they are still functions.  I am just having a bit of difficulty grasping what your point is about the construction of 148B.

MR STRICKLAND:   Because 148B refers to – there are two points.  I did not make it clear.  It refers to the performance by a person of a function - 148B refers to a function, and it is a function performed by a person.  Section 5(2) refers ‑ ‑ ‑ 

KIEFEL CJ:   This is your collective versus individual point you made under section 5?

MR STRICKLAND:   That is correct.  That is true, and also it distinguishes between a function which is a specific function generally conferred under Part VII as distinct from very broadly defined core functions in section 5(2).  They are the two distinctions, and if I can come to the second now ‑ ‑ ‑ 

GLEESON J:   Mr Strickland, can I suggest that one distinction between the individual functions and the core functions may be that independent functions require statutory authorisation, and core functions may not?

MR STRICKLAND:   Your Honour, can I say, we embrace that entirely, and we say that that, what your Honour Justice Gleeson has said is found in section 25.  Section 25, we say, is the key to understanding 148B because in – if I can go back to section 25, that conferred - that requires functions to have a specific statutory authority, that is, it is a duty, which we say is a function:

as are, by any law in force in the Territory, conferred –

and so when one looks at – section 25 should be seen – has the three‑minute bell warning been given, your Honours?  I am not sure if I heard it.  I will continue on.  Section 25 ‑ ‑ ‑ 

KIEFEL CJ:   Yes, the buzzer has gone - the three‑minute warning.

MR STRICKLAND:   Thank you.  I will be as quick as I can.  Section 25 picks up specific powers under Part VII and those powers which have statutory authority can only be exercised upon particular conditions being fulfilled, such as a warrant being issued or particular states of mind being held, such as a reasonable belief a crime may be committed.  It is quite distinct from core functions, which do not have that statutory authority, and which are not susceptible to those particular restrictions, or constraints that are the feature of the specific powers.

KIEFEL CJ:   The power of arrest is a specific function.

MR STRICKLAND:   Exactly, and that is why we make the distinction, your Honour.  Could I just go - given that I have limited time in relation to the function, I want to deal with what Justice Keane has said about how does the word “function” operate.  For that, you need to look at the legislative history of section 148B.  That appears at application book 134 and that is the original section 148B, and what you will note is that it applies to members, not persons, and it protects civil liability only and it does not contain the word “function”.  That section was brought in to include members who act as public officials get the protection under civil liability.  That is not so important.

If you go over the page at paragraph [41] at application book 135, you will see that 148B introduced by the Police Administration Amendment Act, coincided with the introduction of Division VIIAA, also under Part VII, and that established:

provisions for the taking and testing of blood samples by persons who were not members –

So when section 148B refers to “functions”, it is referring to the specific functions conferred under Division VIIAA on persons such as doctors and nurses performing the function of taking a blood sample from a person and you will see that that becomes ‑ ‑ ‑

KIEFEL CJ:   Mr Strickland, was this argument put in the Full Court?

MR STRICKLAND:   Before the Full Bench?

KIEFEL CJ:   Yes.

MR STRICKLAND:   The legislative history was put before the Full Bench and the Full Bench have referred to it at both application book 134 and also at application book 148, which I will very briefly take the Court to, because that sets out the explanatory memorandum at paragraph [80].  But the point is, your Honours, that the word “function” introduced in the 2016 Bill was not introduced to pick up core functions under section 5(2).  The word “function” was introduced to ensure that the function performed by persons such as medical practitioners, nurses, would be protected by the immunity that was offered in the same way that members were given the protection under the old 148B.  In short, the legislative history of 148B does not indicate that Parliament had any intention to confer the extremely wide protection on police for both criminal and civil liability held by the Full Bench.

KEANE J:   …..suggest to you that it was not intended to confer an immunity in respect of officers acting in good faith in the execution of the function of arrest pursuant to a warrant.

MR STRICKLAND:   That is correct, your Honour.  We do not suggest that.  I note I have been given the double buzzer.

KIEFEL CJ:   Is there anything further that you wish to add?

MR STRICKLAND:   I wish to briefly talk about ground 2.  If I could be given an extra two minutes for that, I would be grateful, but if not, I will not.

KIEFEL CJ:   Yes, Mr Strickland. 

MR STRICKLAND:   Your Honours, we say if ground 1 is upheld, it follows that the answer to question 3 at paragraph [204](b) is incorrect.  That is what ground 2 picks up.  It is incorrect because those matters are not functions performed under the Act that are outside the scope of 148B.

We say that if ground 1 is upheld, ground 2 grapples with the ambit of the protection in section 148B, namely, whether 148B can be engaged if the impugned act was done for a purpose outside the scope of the functions and powers of the Police Administration Act, such as protection of life, but also there is a function where the performance is within the scope of 148B, such as, for example, arrest.

That was not dealt with by the Full Bench because it started from the wrong starting point.  It held that all the relevant functions specified at paragraph [204](b) were within the scope of 148B.  So the Crown position  is that 148B is only engaged if, on the evidence, it is open to find that the firing of shots two and three were done in the exercise of power to arrest the deceased. 

That would need to be either the sole purpose or at least the dominant purpose for 148B to be engaged.  In other words, but for the purpose of arrest, the act of firing shots two and three would not have been committed.  We say that that ground 2 really travels with ground 1 so that the jury can be properly instructed as to the ambit of 148B.

Your Honour, we have made our submissions about fragmentation in the written submissions and I do not think I need to add anything further.  Thank you, your Honours.  They are my submissions.

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

MR WALKER:   Your Honours, may I start by taking you to page 245 of the application book, paragraph 9 of our friend’s submissions in reply, where it is said that:

the applicant does not suggest that, depending upon the evidence led at the trial, the respondent would be prevented from relying on s 148B as it relates to the power of arrest conferred by s 124 –

Now, it needs to be pointed out that, at the very least, therefore, the terms of section 148B are not argued by the Crown to be unavailable with respect to the events in question.  To remind your Honours, the events in question involve an attempted, eventually accomplished, arrest in answer to a warrant, during the course of which the deceased person launched and carried out attacks on those seeking to arrest him.

It is a split‑second exercise.  That is why, in our submission, there is something artificial…..that the concession of the Crown in its paragraph 9 in the reply submissions does not leave section 148B, as conceded by the Crown, to govern a jury consideration, depending upon all the other events that may unfold in an evidentiary sense at the trial.  That would not call for this Court’s intervention, that would be unnecessary further delay in proceedings which bespeak, by their very nature, the real need to have a verdict as soon as possible.

Your Honours, the next point to be made is that section 124, to which my learned friend refers as bestowing a power of arrest, in fact, probably should not so be seen.  It regulates various aspects of arrest under matters - under warrant - under subsection (1) permits, for example, arrest without warrant upon reasonable cause to believe that there has been a warrant issued.  In our submission, section 124 does not look at all as if it is the full detailed regime for powers of arrest which, in our submission, naturally and according to the evident purpose of a police force, regulated by statute, no doubt, to include arrest without warrant in appropriate situations.

It really means that on any view, section 148B is not sought, by the proposed argument in this Court, to be removed from the jury’s consideration altogether, by which I mean their jury consideration of the issue of good faith.  To remind your Honours, there could be little doubt about the intended breadth of the application of section 148B, bearing in mind that in subsection (3) the exercise of the power extends to the purported exercise of the power.

While on section 148B, could I address something my learned friend has not addressed in his remarks this morning, but which are relied upon against us, namely, that there is a general public importance – we suppose that means extending beyond South Australia and Northern Territory – with reference to the regulation of civil liability by provisions in the form of section 148B.

It is to be recalled, of course, that there is a common pattern, with which your Honours are no doubt familiar, in such provisions, replicated here by subsection (2), which would mean that with respect to civil liability there is not the removal of liability but simply the referral, as it were, of the claim to Treasury rather than to the private resources of the police officer.  That, in our submission, suggests that there is nothing warranting the attention of this Court with respect to the metes and bounds of the answer to a civil claim provided by provisions such as section 148B.

This is a case about the large matter – we do not shrink from that – of whether what Parliament has, in terms, enacted in section 148B, is a matter upon which the jury must be instructed according to law if the facts, in the trial judge’s assessment, render that appropriate at the trial of our client.

In our submission, there can be no doubt about what “criminally liable” means and it extends, obviously, to offences as serious as those which are in question in these proceedings.  There can be no doubt what “good faith” means, both as to its distinction from and overlap with motions of reasonableness which, in any event, as has been conceded, will be before the jury in all likelihood, depending upon how the facts fall out.

So it comes down really to the question of what the exercise of a power or performance of a function under this Act – that is, the whole of the Act, not parts of the Act – means in section 148B(1) and the proposed attack on the reasoning of the Full Court concerning the significance of section 5.

In our submission, the proposed error is one which, in order to be demonstrated, would show a very considerable gap in the legislative creation and regulation of the police force of a kind that is quite at odds with very old common law understanding, now much regulated by statute, concerning the role, function and powers of what I will call constables.  First of all, section 5 is definitional, by listing the so‑called core functions.  Second, they are, on any view of it, functions, and third, they are the functions of the police force.

The police force is, if one must use the word, a collective.  What it is, is a police force consisting of one special member, the Commissioner, and all the:

other members appointed and holding office -

That is section 6.  We know under ‑ ‑ ‑ 

GLEESON J:   Mr Walker, do you accept that provisions like section 148B are generally construed to apply to the performance of functions and powers that involved the interference with rights, otherwise, in other words, they are functions that require statutory authority?

MR WALKER:   The first part of the question the answer is yes, but not the second part.  In our submission, there will always be a question as to what I will call justification, which may arise under common law as well as under statute.  So yes, of course the purpose of a provision like section 148B is to regulate aspects of the conduct of people with important, and in some circumstances drastic, powers to do things which ordinarily other people may not be able to do, and all in the public interest as perceived by the common law and second by Parliaments, from time to time and in different ways.

Yes, the interference with rights, including a right to life, is comprehended in the notion of civil or criminal liability, but that does not mean that section 148B will always look for a predicate, as it were, being an explicit statutory conferral of a specific power to do the actual thing which has brought about what would otherwise be an infringement of rights for which there could be civil or criminal liability.  That, in our submission, comes from the evident significance of the application of reasonable force, that is, what would otherwise be trespass to the person or assault with respect to a number of the different functions of police officers.

Now, some of them are held in common with all of us, but certainly held by police officers.  That is why, in our submission, this is not a case of what might be called a shortage or a “gap”, as I put it earlier, of any statutory power because section 5(2) could scarcely be read as understood as creating the core functions of a most salutary and significant kind such as upholding law, maintaining social order, protecting life and property, preventing, detecting, investigating and prosecuting offences, and lead it to what happens to be a miscellany of special matters in Part VII of the Act to enable the police force to discharge those core functions.

When one goes to Part VII, it is a cheap shot, but rhetorically I can point out that it starts off regulating resort to dogs and horses and then it moves to a number of other matters, particularly matters of real social significance such as the taking of samples and such as different kinds of warrants or no need for warrant, as regulated by specific provisions for search and seizure, again very important social and political matters regulated specifically.  Part VII has not ‑ ‑ ‑

GLEESON J:   Mr Walker, would it not be fair to observe that where the legislature wanted to permit police to interfere with rights, it has done so specifically through Part VII.

MR WALKER:   No, if your Honour means by that, as I apprehend you do, that that is an exhaustive statement of empowerment to do things which would otherwise give rise to civil liability or in some cases criminal liability, then absolutely not.  In our submission, you will not find in Part VII any power to permit a police officer to prevent – to protect life.

GLEESON J:   But certainly do have powers to use reasonable force in various ‑ ‑ ‑

MR WALKER:   In highly specific respects where there is regulation by individual schemes to be found within Part VII, but one would like to think that the core function of protecting life which is given to the police force which consists of its members is not a function for which no power exists and therefore good faith, and may I add for good measure a reasonable form of conduct with the intent to protect life, would lack all protection under section 148B. 

That would sit most oddly with other aspects of the criminal law in particular such as self‑defence or defence of another.  It is for those reasons, in our submission, that the notion that Part VII or other statutes provides the only way in which there can be powers exercised to discharge core functions ought to be rejected.  The scheme of the Act explicitly appears, with respect, to provide otherwise. 

My learned friend criticises as plainly in error some of their Honours below referring to the need for members of the collective, the police force, to take an oath before they are entitled to exercise or perform any of the powers, functions or duties conferred upon a member of the police force by a law of the Territory, namely, that there must be an oath taken first, an oath the text of which you will find at application book 192 and which bespeaks the understanding of Parliament by reason of stipulating for that form of oath in the schedule that there will be, what we would call most obviously in the public interest, an ample imposition of duty…..swearing of the oath. 

Simply using the old but useful phrase “preventing offences against her Majesty’s peace” would be enough, in our submission, obviously to convey the attempt, including by physical force if necessary, to execute an arrest and to prevent a threat to life which was in course maybe one’s own life, but certainly others’ lives. 

It is for those reasons, in my submission, that this is not a matter of shadow implication but rather a straightforward statutory regulation of the police force, from which it cannot be said that all common law considerations have been driven – there is no provision to that effect – and where Part VII collects what might be called a miscellany of particular aspects of police power without betraying any indication at all there was to be found a comprehensive, useful – that is, purposively sensible – collection, exhaustively of all and any powers by which core functions might be discharged.

KIEFEL CJ:   Mr Walker, what do you say to Mr Strickland’s argument about legislative history of section 148B?

MR WALKER:   There is nothing in the legislative history which would suggest that 148B is confined in particular to Part VII.  It is found in Part VIIA.  It deals in terms with matters travelling outside the Act – see, for example, the extension of the concept of a member’s conduct as a member of the police force to the other officers that it can be held, as it were, by proxy under section 148A.  That is the first thing.

The second thing is, none of the history suggests that there was intended some contrast between the generality in the public interest of the core functions of the collective, which is the police force in section 5, and the protection in linguistically comprehensive terms bestowed by section 148B.  It is quite plain that the word “function” appears in both 148B(1) and section 5 and we can find nothing in legislative history, extrinsic or sequential, suggesting that there was not to be observed that important conceptual identity. 

That, of course, leaves what your Honour the Chief Justice raised with my friend at the outset, does this all turn on the notion of section 5 bestowing a function on a collective and therefore being irrelevant or outside the ambit of the protection intended plainly to be granted by section 148B, to which, in our submission, the answer must be surely that could not be right, bearing in mind that the nature, I think, of all of the core functions is that, though some of them, such as the first of that named, might be regarded as maintained or contributed to by the collective, such as the good example of all members of the police force, most of them will have to do with the exigencies facing individual members, maybe in groups of more than one but nonetheless individual members, from time to time in the execution of their duties.

It is for those reasons, in our submission, that there is simply nothing in the proposition that section 5 describes functions of collectivity so as to exclude from the protection of section 148B members of that collectivity who happen to be, at the time and at the place, the person or persons called upon to discharge that function imposed collectively on all the members of the police force.  To put it another way, one could not read section 5 as describing a function which is not to be discharged severally by such individual members of the police force who find themselves in such

positions from time to time.  The protection of life alone is, in our submission, a headline example of that form of reasoning. 

Now, your Honours, it is for those reasons that, in our submission, that which ordinarily would be regarded as inappropriate, namely the continued fragmentation and delay of these proceedings, is not justified by the practical application of any ruling by this Court with respect to the conduct of the trial, bearing in mind the power of arrest concession by the Crown.  In our submission, in any event, by reason of the legislative acceptance through the power to refer questions following acquittal, there may be even acquittals which will be not subject themselves to appeal, notwithstanding the possibility that the Court of Appeal sees error in, for example, a direction to the jury.

That really means that one ought not to approach the full discretion your Honours have with respect to a grant of special leave on the basis that the cardinal principle must be that in the event of a trial, any looming error ought to be regarded by reason of the possibility of an acquittal thereby as something which the law cannot tolerate.  The law does tolerate that for reasons which, as your Honours appreciate, are both traditional and contemporary with respect to appeals against acquittals.  For all those reasons, in our submission, this is not a case apt for the grant of special leave.  May it please the Court.

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

MR STRICKLAND:   The first is that there is a real practicality in the Court intervening at this stage.  The practicality is that even if 148B is left to the jury on the issue of a power of arrest, it is fundamentally different to leave it to the jury on the basis stated by the Full Bench, namely that as long as the accused genuinely believed he could fire the second and third shots to defend Mr Eberl’s life, or to prevent him from being stabbed, that grounds a statutory defence.  That is fundamentally different from a case where his function was simply to arrest him.  So it has a great practical application in this case.

KEANE J:   Mr Strickland, does that contention you just made depend on this notion that there must be a dominant purpose or a sole purpose of effectuating the arrest?

MR STRICKLAND:   No, it does not, your Honour.  It does not, because, we say no matter how we – under no circumstances does the issue of protecting a life or preventing a stabbing, which is the core functions, that does not engage 148B, no matter how – whether the power of arrest is dominant or otherwise.

KEANE J:   But if there were the occasion, because section 148B speaks of an occasion, that is, in the exercise of a power or function, if the occasion were the exercise of the power to arrest, if that were the occasion, and the mental element, requirement of good faith, is satisfied, or cannot be negatived, I suppose, then it would not matter, would it, if the accused was also motivated by a desire to protect his colleague or himself?  The relevant point would be that the occasion was the exercise of the power of arrest, and so long as the accused was acting in good faith, would he not then be entitled to the benefit of the immunity, even if he was also motivated by a desire to protect his colleague or himself?

MR STRICKLAND:   Your Honour, that may be so.  However, if the Full Bench does not correct the error, the jury would be directed that it would be sufficient - if they are satisfied, if they have a reasonable doubt that the accused honestly believed that - when he fired the second and third shot, that he honestly believed that was to prevent the stabbing, then they need go further.  That is why how the jury is directed about the application of 148B has a real practical importance, we say.

KEANE J:   But the jury would have to find that the occasion - they would have to be instructed that so long as the occasion, when that occurred, was an occasion of the exercise of the power of arrest and that the accused was acting in good faith, the accused would be entitled to the benefit of the immunity.

MR STRICKLAND:   Your Honour, we accept that, and your Honour’s question goes directly to ground 2, which is the issue of how dual or multiple purposes fit into when one is outside the ambit and when one is within the ambit.

KEANE J:   But 148B is not concerned with purposes.

MR STRICKLAND:   No.

KEANE J:   The mental element is good faith.

MR STRICKLAND:   That is right.

KEANE J:   It applies where there is a particular occasion.  It is not concerning itself with whether the accused might be entitled to the benefit of the immunity if he was motivated by a particular purpose rather than another purpose.  It is concerned with whether he is acting in good faith in the exercise of the function.

MR STRICKLAND:   Your Honour says “occasion”.  It is the exercise of power or the performance of a function.

KEANE J:    Yes.

MR STRICKLAND:   We say that how that – I am answering my learned friend’s response that because we have conceded power to arrest that somehow means that there is no real utility or practicality in the High Court intervening.  We say that the way the Full Bench has asked the question would have a very real effect on how the jury would be instructed about the application of 148B and ‑ ‑ ‑

KIEFEL CJ:   Finish your sentence.

MR STRICKLAND:   Thank you.  I just wanted to say briefly to the second and third point, what my learned friend has said about section 5(2) reflecting the common law about police powers may be so but what is critical for the purposes of 148B and the interference of rights is the common law confers various restraints and protections, particularly in relation to the use of force. 

We have set that out at paragraph 21 of our written submissions.  In particular, the use of excessive force or lethal force can only be used under certain circumstances, particularly with notions of reasonableness.  So there are no gaps in police - the construction we contend does not mean there are any gaps.  It is simply about the limits on those powers.  That is the significance of this case.

Finally, my learned friend says that an acquittal on a wrong construction is something that can be tolerated.  We say that in the particular circumstance of this case, the murder of an indigenous man by the police in a remote community, an acquittal on an incorrect basis should not be tolerated because it can be cured by this Court in circumstances where the proceedings have already been fragmented.  If the Court pleases.

KIEFEL CJ:   The Court will adjourn to consider the course that it will take.

AT 10.34 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.42 AM:

KIEFEL CJ:   This application for special leave is to be referred for the consideration of the Full Bench of the Court.  How long do you think the argument will take before the Full Bench, Mr Strickland?

MR STRICKLAND:   We think one day, your Honour.

KIEFEL CJ:   A full day?

MR STRICKLAND:   For the application?  I beg your pardon, your Honour ‑ ‑ ‑ 

KIEFEL CJ:   It will be argued as on appeal, so it will be full argument.

MR STRICKLAND:   I understand.  Your Honours, we think a half a day to one day, depending upon if the South Australian DPP is given leave to intervene.

KIEFEL CJ:   Yes, of course, the intervention.  Yes.  Mr Walker?

MR WALKER:   I agree, your Honour.

KIEFEL CJ:   Thank you.  Do the parties seek any priority to be given to this matter, given the delay on the trial?

MR WALKER:   We submit it is urgent, your Honour.

MR STRICKLAND:   We agree, your Honour.

KIEFEL CJ:   All right.  That will be taken into account.  The parties will be contacted about what arrangements can be made to facilitate an earlier hearing.

MR WALKER:   May it please the Court.

MR STRICKLAND:   If the Court pleases.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn.

AT 10.43 THE MATTER WAS CONCLUDED