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

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

At the trial, the respondent, a police officer, is accused of three offences concerning the shooting death of a young Aboriginal man (“the deceased”) at Yuendumu. The alternative charges are murder contrary to s 156 of the Criminal Code Act 1983 (NT) (“the Code”), manslaughter contrary to s 160 of the Code and engaging in a violent act which caused the death of the deceased contrary to s 161A(1) of the Code. The respondent was arraigned in late 2020 and the trial was set down to begin on 19 July 2021. From 19 to 22 July 2021, the trial judge (Mildren AJ) conducted voir dires. On 22 and 26 July 2021, the trial judge referred four questions to the Full Court under s 21 of the Supreme Court Act 1979 (NT). A bench of five judges, including the trial judge, heard argument on the four questions on 28 July 2021, delivering their judgment on 13 August 2021. The judgment was based on assumed facts (that is, facts that have not been concluded or agreed)[2], including that the respondent shot the deceased three times in short succession, and the fatal shot was either the second or the third shot[3]. For the purposes of the Full Court hearing, the Crown accepted that the respondent fired the first shot in the course of arresting the deceased.
[2]The Queen v Rolfe (No 5) [2021] NTSCFC 6 at [6].
[3]The Queen v Rolfe (No 5) [2021] NTSCFC 6 at [18]-[20].

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

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

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

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.

Continue reading R v Rolfe

Details

AGLC: R v Rolfe [2021] HCATrans 137
Case: [2021] HCATrans 137
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Director of Public Prosecutions against a decision of the Supreme Court of New South Wales, which had stayed proceedings against Constable Rolfe. Constable Rolfe was charged with the murder and manslaughter of an Aboriginal teenager, Kumanjayi Walker, in Yuendumu, Northern Territory, in November 2019. The Director sought to reinstate the murder charge, which had been stayed by the trial judge.

The central legal issue before the Court of Criminal Appeal of New South Wales was whether the trial judge had erred in law by staying the murder charge against Constable Rolfe. Specifically, the court had to consider whether the evidence presented at the committal hearing was sufficient to support a finding of a prima facie case for murder, and whether the trial judge had correctly applied the principles governing the exercise of a power to stay criminal proceedings.

The Court of Criminal Appeal found that the trial judge had erred in law. Gleeson J, delivering the judgment of the court, held that the evidence was capable of supporting a finding of murder, and that the trial judge had misconstrued the relevant legal principles when deciding to stay the proceedings. The court determined that the evidence, when viewed in its entirety, was sufficient to establish a prima facie case for murder, and that the question of whether the killing amounted to murder was a matter for the jury to determine.

Consequently, the Court of Criminal Appeal ordered that the stay of proceedings on the charge of murder be set aside, and that the murder charge be reinstated. The matter was remitted to the Supreme Court for further proceedings.

Orders