R v Rolfe

[2021] HCATrans 136

[2021] HCATrans 136

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 stay

GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON FRIDAY, 20 AUGUST 2021, AT 12.58 PM

Copyright in the High Court of Australia

HER HONOUR:   In accordance with the current practice I will announce the appearances of the practitioners.

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

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

HER HONOUR:   At the outset, can I indicate that my current disposition is to list the special leave application for a hearing on 10 September, if that is convenient to the parties.  Mr Strickland, is that convenient to your client?

MR STRICKLAND:   Yes, your Honour.  It is convenient, your Honour.

HER HONOUR:   Mr Walker?

MR WALKER:   Your Honour, it will be made so, no doubt.

HER HONOUR:   Excellent.  Let me then take that one step further.  A proposed possible timetable would be for the respondent to file a response by 4.00 pm, Wednesday, 25 August; a reply to be filed by 4.00 pm, Tuesday, 31 August and an application book to be filed by 4.00 pm, Thursday, 2 September.  You do not need to comment on that now, but can you, Mr Strickland, remind me to come back to that.  Given Mr Walker’s response I will start by listing the special leave application for Friday, 10 September 2021 at a time to be fixed.

MR STRICKLAND:   Yes, your Honour.

HER HONOUR:   Mr Strickland, we will now move on to the stay application.  For convenience, I might just identify the documents that I have.  I have the application for a temporary stay dated 19 August 2021 and an affidavit in support of that application affirmed by Collette Dixon on 19 August 2021.  I also have the application for special leave to appeal filed on 19 August 2021.  I have the outlines of submissions from each side.  Is there anything else that I need from your side, Mr Strickland?

MR STRICKLAND:   No, your Honour.

HER HONOUR:   Mr Walker?

MR WALKER:   No, your Honour.

HER HONOUR:   Thank you.  All right, Mr Strickland.

MR STRICKLAND:   Thank you, your Honour.  As your Honour knows this trial is to begin on Monday, but we have sought a stay yesterday and that stay was refused.  That is one of the factors that your Honour will consider pursuant to Jennings v Burgundy Royale that we have already sought a stay in the court below and that stay has been refused.

HER HONOUR:   Let me clarify the facts as I understand them.  Is it correct to say that the trial has commenced and Acting Justice Mildren intends to commence empanelling the jury next Monday?

MR STRICKLAND:   That is true.  The Criminal Code states that because the accused has been arraigned, which he was late last year, the trial is deemed to have commenced.  That is the language of the statute.  But, other than that, what your Honour says is correct.

HER HONOUR:   All right, thank you.  Go on.

MR STRICKLAND:   Thank you.  Your Honour, there really are, between the parties on this stay application, only two matters in real dispute.  The first is to do with the substantial – is to do with the prospects of the leave itself and the second is to do with the balance of convenience.  Can I just very briefly give your Honour the context in which these legal issues have been addressed by the Full Court.  Your Honour, can I take ‑ ‑ ‑

HER HONOUR:   Mr Strickland, I am sorry – before you go that far, can I take you to your application.  I just want to clarify exactly the nature of the order that you are seeking.

MR STRICKLAND:   Yes, your Honour.

HER HONOUR:   So, we can put order 1 aside, but looking at order 2 it has two elements.  One is to set aside the order of Acting Justice Mildren.  Is that really what I am being asked to do?

MR STRICKLAND:   That is the consequence of what your Honour is being asked to do - that is what your Honour is being asked to do is to order a stay of the trial and the consequence of that order will be that Acting Justice Mildren’s order will be revoked – or will be quashed.

HER HONOUR:   But I am obviously not hearing an appeal from Acting Justice Mildren’s decision?

MR STRICKLAND:   No, that is correct.

HER HONOUR:   All right.  Should I not really be confining myself to the second question that is raised by order 2?

MR STRICKLAND:   Yes, your Honour.

HER HONOUR:   All right, thank you.  Now, you say there are two issues.  One is prospects and one is balance of convenience.

MR STRICKLAND:   That is correct, your Honour.  Before I get to both of those, I thought it would be helpful in a couple of minutes just to outline the context in which those issues need to be considered.  The first is could I ask your Honour to go to a document which is called the “Assumed Facts”.  It is at page 130 of the bundle.

HER HONOUR:   I am afraid I do not have a bundle, except for a bundle of papers that my associate has put together, but I do have a document which was filed yesterday, and it is the reference to the Full Court, and it has on page 3 “Assumed Facts”, dated 22 July 2021.

MR STRICKLAND:   That is it.  That is the document, your Honour.  So, I will take your Honour to the status of those assumed facts for the purpose of the Full Bench, but just give to your Honour the factual context of this case. 

In November 2019, the respondent, who was a police officer from the Northern Territory, was deployed from the Alice Springs Police Station to the Yuendumu to effect the arrest of the deceased, Mr Kumanjayi Walker, for breach of an order of suspended sentence.  At the time of his arrest he was brandishing some scissors - and I do not know – again, perhaps I am going to a bundle I assumed your Honour had, but perhaps does not.  In the “Assumed Facts” document there are a number of annexures.  I do not know if your Honour has those annexures.

HER HONOUR:   I have some annexures, yes.

MR STRICKLAND:   If you go to annexure E, which is my page 165, your Honour will see those scissors.

HER HONOUR:   Yes.

MR STRICKLAND:   If your Honour goes to the assumed facts - 133 of my bundle and it is at paragraph 19 of the assumed facts.

HER HONOUR:   Yes.

MR STRICKLAND:   The respondent asks Mr Walker to put his hands behind his back and, after being stabbed with the scissors, fires a shot at close range into the middle region of the deceased’s back.  That first shot is not fatal, according to the forensic evidence, and the first shot is not the subject of any charge.  Thereafter, the deceased and the respondent’s fellow officer, Mr Eberl, fell to the ground.  Mr Eberl was on top of him and the deceased was then pinned down on a mattress by Eberl. 

Then, as your Honour will see from the assumed facts, the defendant – the respondent then fired two shots in quick succession to his left torso.  One of those, or perhaps both of those, were fatal.  The second shot was fired 2.6 seconds after the first and the third shot was fired half a second after the second. 

Now, those two shots are the subject of the charge and the issue in the case – the only issue in the case is one of justification.  That is the context, in my submission, of the Full Bench’s decision in the stay.  That is the context in which we say, given the issue is justification, that the prospects are not insubstantial.

The legal issue, if I could take your Honour to our special leave application proper, that sets out the relevant provisions that are the subject of the Full Bench decision.  If your Honour goes to – again, this is my pagination system – page 18.

HER HONOUR:   Yes.

MR STRICKLAND:   Page 18 sets out the terms of 148B of the Police Administration Act and the Full Bench decision is to the effect that the words “performance of a function under this Act” picks up the language of section 5, which your Honour will see on page 16, picks up the core functions of the police force, which include protecting life, preventing offences, et cetera.  So, if I could take your Honour now to paragraph [204] of the judgment – that is at my page 114.

HER HONOUR:   I have that.

MR STRICKLAND:   The key matters that will be the subject of a special leave application – and this is the decision of the plurality, which is that the protection conferred on them by section 148:

extends to acts done . . . in the performance . . . of functions in s 5 of that Act.

On the assumed facts it would be open to the jury to find that at the time he did the acts which are the subject of the charge . . . the accused was performing . . . the function of preventing the commission of an offence by the deceased –

That picks up the language of section 5(2):

and/or the function of protecting life (that of Constable Eberl) -

That also picks up the function of section 5:

and/or that he was exercising . . . the power to arrest –

That picks up a function under section 124.  How the jury will be directed is made clear – if this defence would go to the jury – at page 121 of the bundle, also [220] where the plurality referred to what “good faith” means:

that a person to whom the section applies –

148B:

will not be criminally liable if they are acting in good faith - that is to say, honestly.

…..we agree with that.  Your Honour will note the footnote at 62, Hamilton v Halesworth, Little v Commonwealth, Webster v Lampard all support that proposition that what “good faith” means is acting honestly.

Now, if I could just pause at paragraph [204](b) – and your Honour will note about – the answer is referable to the assumed facts.  What I am about to do is to answer a proposition put by my learned friend, Mr Walker, about this is fact sensitive.  It is requiring your Honour, or the High Court, to deal with matters before the evidence is finalised.

HER HONOUR:   Is this in relation to ground 2, or is it in relation to both grounds 1 and 2?

MR STRICKLAND:   This is both grounds, but I am referring to Mr Walker’s submission at paragraph 4, which I do not have at the moment, but the effect of that submission is that this is a – the answer to this question is fact sensitive and this Court should not be ruling on pre‑trial rulings that are fact sensitive before the evidence is completed.  We disagree with those submissions because we say that what the High Court will be required to deal on is really legal issues to do with the construction of 148B, whether it incorporates section 5, and the significance of section 25, which confers functions on members.

So, if I can just go back to that issue on the assumed facts.  That is dealt with – the significance of the assumed facts is dealt with by Justice Southwood and Acting Justice Mildren at – if your Honour goes to paragraph [25] of the judgment, your Honour will see that first, question 3 is raised – paragraph [25], subparagraph 3:

Referred question 3 did raise issues of mixed fact and law but its ultimate determination depended upon how the Court ultimately framed and analysed the question.  Some aspects of question 3 were quintessentially matters for the jury.

So, that is why it was reformulated. 

However, the scope and operation of s 5 –

and the interplay between 5 and 25 raises important questions of law.

HER HONOUR:   The Full Court seemed able to deal with it.

MR STRICKLAND:   Correct, exactly.  If your Honour goes to paragraph [6] of the judgment it sets out the significance of the assumed facts.  They do not:

constitute concluded facts . . . agreed facts.  However, the documents do contain some facts not in dispute, some facts the Crown will seek to prove at trial . . . The Court received the documents  to provide a context for the resolution of the referred questions.

In other words, pursuant to what the High Court said in DPP v JM.  They are not just ruling on a hypothetical or an advisory – the assumed facts ground the legal issues.  The point is, your Honour, that the ruling of the Full Bench – and, indeed, what will…..on the special leave does not depend upon what evidence is led at trial.  It is a legal question about the construction of the statute and that is why the Full Bench was able to deal with it and did deal with it.

We say the application, that is the special leave application, is warranted and, indeed, necessary because the ruling of the Full Bench, we say, is manifestly wrong.  We say it is manifestly wrong because that decision means – that is, the decision that I have taken your Honour to at paragraph [204] – that it is open for a jury to conclude that the respondent was not criminally liable at the time he fired those lethal shots 2 and 3 if the jury find there is a reasonable possibility he is acting in good faith, that is, honestly, that he honestly believed he was performing the core function such as protecting Mr Eberl’s life or preventing Mr Eberl being stabbed, in other words, he would avoid criminal liability without any consideration as to whether the use of force is reasonable in the circumstances. 

We say, on the facts of this case, that would really render the other statutory defences, section 208E and section 48BD, that is self‑defence and – 208E, that would really render them – have very little role, if any, to play.  We say that the reasoning of the Full Court really eviscerates the protection that 48BD and 208E provide to the community about police officers, in particular, using lethal force where the law does not otherwise provide, i.e. with the concept of reasonableness being an essential part of the limitations on the use of force.  It is an essential part of this case, of this murder case, to be tried.

HER HONOUR:   That might be the proper interpretation of section 148B.  Do you want to say anything about why the interpretation is wrong, or how the interpretation is wrong?

MR STRICKLAND:   Yes, we do, your Honour.  It is captured in our submissions – in our special leave application.  But, first, does your Honour have the Police Administration Act?  Sorry, I beg your pardon.

HER HONOUR:   I have what is attached to the ‑ ‑ ‑

MR STRICKLAND:   I am sorry – I will just take your Honour to the key provisions.  If your Honour goes to page 15 of the bundle, they are the relevant provisions.

HER HONOUR:   Yes.

MR STRICKLAND:   The first thing – why we say the Full Bench decision is wrong is this.  Section 148B refers to a person not being criminally liable for an act done by – and these are the key words:

the person in good faith –

in the exercise of a function.  I am omitting the irrelevant words.  So, 148B provides protection on the person.  The performance of a function under this Act we say is a performance of a function of the person.  It is wrong, in my submission, to pick up section 5 - if your Honour can turn to page 16 - because section 5 confers functions on, not a person – confers core functions on the police force, which is defined in section 4, which is on page 15.  So, there is a conflation, we say ‑ ‑ ‑

HER HONOUR:   The police force is the totality of the members of the police force, is it not?

MR STRICKLAND:   It is, your Honour.  It is the totality of the members of the police force, but it is a separate entity from the members.  They are not interchangeable.  Your Honour, where the functions – the source of the function that is referred to in the second section of 148B is in section 25.  Can I take your Honour to section 25, which is at page 17?  That provides:

Subject to this Act, a member –

which is defined as a member of the police force:

shall perform the duties –

That is a synonym for “functions”:

and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on him.

Now, “any law” includes the common law and “any law” includes any statute, including the criminal law.  The function or duties that are conferred by section 25 are subject to other statute law, most importantly in this case the Criminal Code.  The Criminal Code imposes limitations on those duties.  A critical limitation in relation to the use of excessive force is 48BD and 208E which impose notions of reasonableness.

So, 25 would have little work to do if section 5 were to say, well, the core functions of the police force, unconstrained by the law conferred on them.  That is why we say that provision – that is why we say the court’s interpretation of, in fact, incorporating the section 5 core functions into 148B is incorrect.

HER HONOUR:   All right, thank you.

MR STRICKLAND:   Your Honour, the other point I wish to raise in response to my learned friend’s written submissions is about raising questions of public importance.  Now, I understand Mr Walker’s submission about there were two States, but since filing the special leave application we have in fact discovered there is a third jurisdiction which has a similar statutory regime.  That is the Police Act (NSW) where section 213 is a similar provision to section 148B and section 6(2) sets out the functions of the police force.

So, we say that there are three jurisdictions where this matter has some significance.  It is relevant, we say, that the High Court does not appear to have ruled on questions of the scope of immunities in a case where there was an issue about the relationship between an immunity such as section 25 – section 148B and section 5.  All in all, your Honour, we say that the prospects of a grant of leave are not insubstantial.

Your Honour, in the written submissions we have sought to distinguish the decision of Elliott, which I have no doubt my learned friend may rely upon, which is about the criminal process should not be fragmented and obviously as a matter of principle that is correct.  But, as your Honour knows, that decision being simply a decision to refuse special leave does not bind your Honour, does not bind the Bench that will consider the special leave application. 

We say (a) it is distinguishable because Elliott concerns a different statutory regime than the one in the Northern Territory and we set out in the written submissions briefly why that is so.  It concerns an evidentiary ruling.  This matter does not involve an evidentiary ruling.  It concerns a matter as to whether a statutory defence is available on the critical matter of justification and it did not concern a charge of murder – that is Elliott.  This is not a case where the accused if convicted on a wrong ruling can come back after the trial process. 

Now, if I can answer Mr Walker’s point in relation to 414 of the Criminal Code.  My learned friend says the Crown does have some remedy under 414 of the Code.  Does your Honour have that provision handy?

HER HONOUR:   Only if it is – no, probably not.  Is this the point that the circumstances are not exceptional, that they are simply the product of the legislative scheme that precludes a right of appeal from an acquittal?

MR STRICKLAND:   I think the legislative scheme – the Elliott point is somewhat different.  The Elliott point is there is a scheme whereby the Crown cannot seek rulings – cannot appeal against interlocutory rulings and, in effect, they have to accept – even if those interlocutory rulings are wrong, they have to accept it because a speedy trial is more important.  That is the essence of Elliott.

We say that scheme is different.  One of the reasons for the difference is that here – in Elliott what happened was there was a seeking for an advanced ruling - of an evidentiary ruling and under the terms of that statute, under the terms of the Elliott statute – sorry, the Victorian Police Act – I think section 391A – it talks about the importance of an – the expeditious hearing and that was one of the relevant statutory factors, whereas here, how this matter would come to the High Court comes by a different route. It comes by section 21 of Supreme Court Act whereby Acting Justice Mildren referred the matter to the Full Bench under section 21 of the Supreme Court Act. There is no consideration in section 21 of the need for expedition. We say it is a different statutory scheme.

HER HONOUR:   Acting Justice Mildren seemed to suggest that the disruption of the proceedings – and that would be where all of this is about to lay – was contrary to the policy of the Criminal Code.  I was going to ask you to identify what his Honour was referring to there.

MR STRICKLAND:   Your Honour, it is true in the Criminal Code that by virtue of – in the Criminal Code, your Honour – in the Supreme Court Act there can be an appeal against interlocutory rulings by leave.  But that provision in the Supreme Court exempts, in effect, criminal proceedings.  It says it is subject to Part 10, Division 2 of the Criminal Code.  The Criminal Code, which is the equivalent in New South Wales of the Criminal Appeal Act, does not provide for any interlocutory rulings by either the prosecution or the accused.

So, Acting Justice Mildren said there was a policy of not appealing interlocutory rulings and that is in order to ensure the trial is not disrupted.  To that extent there is a similarity, but what we say – where we say Elliott is different is one - this did not come to the Full Bench by virtue of an interlocutory ruling.  I know Acting Justice Mildren says – or stated in his reasons that it came to him to be decided by virtue of section 192A of the Evidence Act.  Does your Honour recall his Honour saying that?

HER HONOUR:   Yes.

MR STRICKLAND:   That, in fact, with respect, is incorrect. Section 192A involves advanced rulings relating to matters to do with evidence. When the matter was referred to his Honour it was never on the basis that – and it could not be on the basis of some evidentiary ruling. It concerns whether a statutory defence is available. It then got referred to the Full Bench under section 21 of the Supreme Court Act which gives plenary powers to the Full Bench – or to the judge to refer any part of the proceeding, the criminal proceeding, to the Full Bench and the Full Bench accepted it.  So, we say ‑ ‑ ‑

HER HONOUR:   You accept that exceptional circumstances are required to justify fragmentation of the trial process?

MR STRICKLAND:   Yes, we do.  We do.  We say the exceptional circumstances are these.  First, we adopt what was put before us in the stay by Mr Edwardson QC, that this is an exceptional case.  The circumstances of the case are exceptional, that is, it is the alleged murder of an indigenous man by a police officer in the course of what is said to be his duties.  It has divided the police and the indigenous community, and it has captured the interest of the Territory and, indeed, the nation.  That is what is put below, and we agree with that.

It is obviously a trial which includes a charge of murder and what is exceptional is, if the trial proceeds in accordance with the Full Bench’s ruling, the defendant could be acquitted of that most serious charge because of the Full Court’s error.  We say that the ruling does not simply go to some peripheral matter or some evidentiary ruling.  It goes to the heart of the case as to whether that particular defence, being a good faith defence, is available to him where the only issue then in the trial, the only real issue in the trial, would be whether he honestly believed he was performing one of the core functions.

The other matters, in my submission, would be of almost no relevance at all.  That would, in my submission, be a trial, we say, that is not in accordance with the law.  It is no remedy to say well, it can be remedied after he is acquitted, and the law can be clarified.  That would not do justice in this case, which is a case which is, we say, of great importance in the Northern Territory.

The remedy in 414(2) does not affect the respondent’s acquittal under 414(5) and it does not remedy the injustice.  We say it is that factor which weighs heavily in the balance of convenience and that is an exceptional factor in this case.

We say the Court is not limited by any provision.  Its inherent jurisdiction allows it to correct that error by the Full Court, that critical error, and the only time it can…..do so is if special leave is granted and if a stay is granted so as to allow special leave to proceed in any meaningful way.  They are my submissions on why they are exceptional circumstances.

HER HONOUR:   Let me just pick you up on that.  Are you suggesting that the listing of the application for special leave on 10 September is lacking in meaning in some way?

MR STRICKLAND:   No, I am sorry.  If I submitted that I did not mean it that way.  No, to the contrary.  We say that if a stay is not granted the trial would proceed on Monday.

HER HONOUR:   Yes, I understand that.

MR STRICKLAND:   The special leave would be rendered inutile.

HER HONOUR:   You do say that.  The application on the 10th?

MR STRICKLAND:   Yes, your Honour, we do because the trial would be proceeding on Monday.  It would conclude – the evidence would conclude before 10 September.  We would have to open on – the trial – the evidentiary - the facts on the trial have been narrowed considerably and the trial – we could not commence a trial until we knew whether section 148B had any application in this case.  It would affect the openings.  It would affect how the arguments were couched.  The jury need to know from the beginning what are the real issues in the case. 

We would say the critical issue in the case is in relation to 48BD, whether the police officer’s response – whether the shooting was a reasonable response in the circumstance as he perceived them - that is the critical issue, and in relation to 208E whether his response was reasonable in the circumstances of his performing the duty.  If 148B applies, I could not open on that basis. 

That would not be the critical issue in the case.  The only critical issue is did he honestly believe that what he was doing was performing a duty as conferred under section 5(2).  So, the issues would be quite different.  Just to make that clear, we say if the special leave was heard on 10 September it would be inutile if the proceedings commenced on Monday.  They are my submissions, your Honour.

HER HONOUR:   Thank you, Mr Strickland.  Mr Walker.

MR WALKER:   May it please your Honour.  At the heart of the matter is what appears to be common ground and to be emphatically shared by both parties reflecting, with respect, the Court’s approach, namely against the fragmentation of criminal process.  Behind that figure of speech, of course, lies the notion that the cases are not to be interrupted, which includes being deferred, as to any of their aspects, or delayed in their course towards completion.

So that one can immediately see that the orthodox position, that is the usual as opposed to exceptional case, is that a special leave application seeking to challenge, in this case, a lower court, being in this case a Full Bench, having made a determination with significance for the course of a pending trial that every time a special leave application is raised with respect to such a decision that there ought to be a deferral of the trial proceedings to see what happens.

In our submission it is quite to the contrary.  The practice of the court, given the very clear, emphatic policy against fragmentation accepts that points that the Crown may wish to raise pursuant to a grant of special leave may be unavailable because it is too late to do so.  That is the very nature of the firm policy against fragmentation of the trial process.  Things that could be done at leisure will not be able to be done at all.

The next proposition is that what my learned friend relies upon as constituting exceptional circumstances completely misconstrues the way in which the matter was put below.  The matters that I might characterise as being the social significance or community interest in the allegation of murder against a police officer acting as such are matters that were relied upon below to add to the usual imperative to have criminal proceedings heard as quickly as reasonably possible.  It can hardly be said that this is a case that has been precipitant, that is unreasonably rapid, in its progress to trial.

More recently, your Honour has seen some unavoidable circumstances that have led to a delay in trial.  Those are not matters that to the slightest degree indicate that this is a case which should, or could, with equanimity be viewed as appropriate further to be delayed.

Your Honour’s questioning of my learned friend concerning what my learned friend eventually called the inutility of the 10 September fixture for special leave established without doubt that the intention on the part of the Crown is that the case be delayed for an indefinite period, an indefinite period which, however rapid the Court’s attention, both to the application for special leave and, were it granted, to any appeal, would nonetheless be far too large in the scheme of things, of which this case is an example, to be regarded as consistent with speedy trial values.

Then that leads, of course, to the particular policy of the law shown by the relevant legislation concerning grievances, that is disagreements, by the Crown with rulings that may turn out to have significance to the outcome of a trial, certainly significance to the running of a trial.

It is plain to demonstration from section 414(2) of the Criminal Code that it is understood that part and parcel of the non‑fragmentation of criminal process is that there may be rulings uncorrected before a verdict that produces an acquittal.  The policy of the law is, in the absence of the statutory permission of an appeal against acquittal, to allow the law to be scrutinised by the process with which your Honour is familiar of a reservation of a question of law.

So, it is quite plain at the level of the relevant legislature that it is accepted as appropriate that there be acquittals which may turn out to have been secured after a trial in the course of which there has been a significant error of law.  That puts paid to the notion that this is an argument where, to use inappropriate language as has been used against us, there was a possibility of someone getting away with murder.  Far from it.  The process is a process of a trial according to law, during the course of which there are rulings, some of which may be right, some of which may be wrong.

It has never been the case that the possibility that a wrong ruling adverse to a Crown argument is one which gives rise, given the absence of an appeal against acquittal, to an imperative to defer or delay, or worse, to stay a criminal trial in order that eventually the High Court be asked to consider an appeal.

It is for those reasons, in our submission, that far from being an exceptional case, as the authorities and as is conceded is required, this is just an ordinary case that the Crown having run and lost an argument and wishing to be heard by way of appeal against that outcome.  That is not exceptional, that is ordinary.

Can I turn then to the question of the prospects of special leave.  With respect, to the extent that the point turns on distinguishing so as to separate completely, the police force constituted of its members, and a member, that is a person who is a member, for the purpose of considering the intended effect of the immunity provision in question, then, in our submission, it has to be seen as at least somewhat tenuous.  That is because it is impossible to understand how an artificial entity, for statutory purposes, a police force, can discharge its functions otherwise than by the performance of the duties in the exercise of those very functions by each and every one of its members, all of whom, of course, fall within the description of “a person”.  That is the first point.

The next point concerns the supposed rendering of otiose in some inappropriate fashion of general provisions concerning self‑defence and the like were the Full Court’s interpretation of the immunity provision in this case to be upheld.  Now, in our submission, 148B is, on its face, clearly, without serious possibility of contrary argument, a specific provision for the persons caught by its terms.  Self‑defence provisions and the like are, of course, provisions that apply generally.  There is no jarring inconsistency by general provisions yielding to the extent of a validly determined specific provisions operation.  So, one can put that to one side as, as it were, at first sight anything like a compelling case for special leave.

Otherwise, our learned friend advanced in favour of the prima facie merits of the claim for special leave consequentialist propositions that if the Full Court is correct, then the law may operate so as to provide for what I will call an honest position dispensing from criminal responsibility and puts the argument on the basis that that stands in contradistinction from the court’s understandable policy otherwise to require reasonableness to be considered, particularly with respect to the application of force either by private persons or public officers.

That, in our submission, is based upon an obvious fallacy, namely that honesty, on the one hand, good faith if you like, and reasonableness on the other, are the twain that never meet.  The overlap is very considerable.  The more unreasonable conduct is, the more credible or plausible it will be that there is a lack of good faith or, to put it another way, the more difficult it may be to demonstrate good faith.

Your Honour, it is not necessary for me to illustrate by hypotheticals to see that that is a matter of the ordinary experience of life and common sense of a kind that a jury will be required to call in aid.  To put it another way, were this case to proceed as we earnestly submit it should, given our client’s ardent desire for the trial to commence, were it to proceed, it is impossible to understand that the Crown would not in due course call in aid the supposed unreasonableness of conduct if the evidence rendered that a proper submission at all, in order to cast doubt, that is to eliminate or exclude, the availability of a good faith defence.

For those reasons, those combined reasons that what appear to be the cardinal points supposed to show strength on a special leave application, upon scrutiny, are nowhere near so formidable as to lift this case into an exceptional occasion for the exercise of what is admittedly a supervisory jurisdiction to be entertained most sparingly indeed, namely a supervisory jurisdiction which requires and involves the fragmentation and indefinite delay of serious criminal proceedings.

HER HONOUR:   Mr Walker, having regard to what Mr Strickland has said about the utility, or lack of, of the special leave application, if I were to refuse to stay the proceedings would it follow that I ought to vacate the application for special leave and simply have that dealt with in the ordinary course?

MR WALKER:   That is an available consideration for your Honour.  Your Honour should – I am sure you do appreciate that my appearance means that I am not in a position to say that the trial team representing my client would, as it were, all of them be distracted by preparing concurrently for a special leave application.  So, I would not like your Honour to have that impression.

But, of course, some of them are vitally necessary for preparation of a response to a special leave application and so, if the Crown now assures the Court, as it has, that 10 September will be too late – that is my paraphrase of “inutile” – then it would be better in the interests of justice that my side is not burdened, as it will be, to some extent, by needing to divert resources to responding to a special leave application. 

It is only…..which I put it, your Honour, that if the Crown regards the special leave application as inutile unless there be a stay, then, in our submission, it is something that the Court can take at face value and for the extra reasons I have put, it would be therefore appropriate to spare us the need next week to attend to a response to a special leave application.

HER HONOUR:   Perhaps it even goes higher than what I proposed about vacating.  If the Crown is saying that the application is lacking in utility, then perhaps it would follow that the application ought to be dismissed if the stay is not granted.

MR WALKER:   What one might well say, as I do, that no doubt the Crown would make that application, given that it is the Crown.  Your Honour, I have briefly referred to, as I say, the ardent desire of our client for the trial to proceed.  In our submission that is of great importance and unless there is something that really outweighs the great public interest that here coincides with the private interest of an accused person demonstrated by the Crown then that ought to be the end of favourable consideration of a stay of proceedings.  When you add that it is for the purpose of that indefinite duration then, in our submission, we have here the spectacle of considerable logistical effort to bring the case to this point. 

It is not as if the Crown is able to say we have always been opposed to a trial commencing unless and until we have rulings favourable to us on the matters in question.  That would have been an untenable position for a Crown at first instance or before the Full Court and it should be equally untenable here.

HER HONOUR:   Mr Walker, is there any significance in the fact that the Crown did not seek leave to appeal to whichever is the relevant court, the Court of Criminal Appeal or the Full Court, from Acting Justice Mildren’s decision yesterday?

MR WALKER:   No, your Honour.  I think in light of the strictures expressed in Burgundy Royale, it is to be expected that what I might call the requirement to apply below first before coming to this Court will usually involve the need to come to this Court too quickly to contemplate that there be an intermediate appellate consideration of a stay beforehand.

Now, that does not mean that there cannot be or should not be in an appropriate case, but given the kind of urgency of an impending resumption of trial hearing on Monday, then I would not go so far as to ask your Honour to count against the Crown’s application.  They have not, as it were, sought an appeal at the intermediate level from Acting Justice Mildren’s refusal of the stay, no.

HER HONOUR:   All right, thank you.  Was there anything else, Mr Walker?

MR WALKER:   No, that completes our submissions, your Honour.

HER HONOUR:   Thank you.  Mr Strickland.

MR STRICKLAND:   Your Honour, just two points if I might.  The first is the avoidance of fragmentation of a trial is but one of the competing principles that are relevant to the exercise of your Honour’s jurisdiction.  That much is made clear in R v Elliott. 

The other competing principle is that the community whom the Crown represents has a right to a trial according to law.  We do maintain that the nature of the trial and the issues that are inherent in this trial, which are the proper use of police power, excessive use of force, particularly in relation to indigenous communities, is a matter of great public interest.

I accept what my learned friend, Mr Walker, says.  It was used by Mr Edwardson below in terms of the need to get the trial on quickly.  That is true.  But we used it for this stay in a different way, which was to say that there is a real public interest in this particular trial being dealt with in accordance with law, not just the trial itself but the issue that is embodied in the ruling that 148B can effectively be used, we say, to undermine the principles in the Criminal Code. 

I will come back to that in a moment because we do say that the honesty provisions, the good faith provisions in this case, render effectively superfluous the other defences.  I want to come back to that in just a moment.  But that is what we say is the exceptional nature of this case.

Now, there is a real question, your Honour, and I am about to come to inutility, as to whether, if all that the – if the only matter that the prosecution have to – sorry, the only matter that the accused needs to raise is an evidentiary issue is if they exercise the power or the function, I should say, honestly and that the Crown must prove beyond reasonable doubt that it did not do so, there is a real issue as to whether a trial ought to proceed at all.  That is a matter for the Director, not for your Honour.

But your Honour will note what I said about shot 1 and shots 2 and 3.  Shot 1 is not the subject of any charge.  Shots 2 and 3 are.  The essential reason for the distinction between those three shots is that on the evidence – and what has happened is, as well as 148B, there has been an interlocutory ruling by Justice Mildren in relation to the evidence of an expert, Mr Baron, who is a – I should say Sergeant Baron, Detective Baron who is the person who is in charge of training of police officers in the Northern Territory.  He has given a report in relation to whether the use of force was reasonable.  But the critical part of his evidence, which has now been admitted, is that the difference between shots 1 – which was not the subject of a charge – and shots 2 and 3 which are, is that shots 2 and 3 was not a reasonable response in the circumstances.  Shot 1 was. 

So the issue of reasonableness in this case is not just critical, but it renders – if the only issue is one of good faith then what the Crown would have to do is to say well, he was – we accept he was acting in good faith in shot 1, but somehow over two and a half seconds he is not acting in good faith in shots 2 and 3.

So, although my learned friend is correct at a high level of generality that honesty and reasonableness overlap, they are two distinct concepts.  Those different concepts are reflected in different elements in the offences.  For example, in self‑defence, one element is honest belief as to the necessity of doing an act and the other is whether the response is reasonable in the circumstances as perceived.

So, it is quite often the case, and it is certainly the case here that one element, being honesty, is not really an issue and the only real issue is the reasonableness of the response, the proportionality of the response.  That is that case here.  That is really the issue in the case.  We say that is what makes it exceptional, that it entirely transforms the nature of this case and even renders it a matter for consideration whether the case can properly proceed at all.

They are my submissions in reply.

HER HONOUR:   Thank you. 

MR WALKER:   Your Honour, I am sorry ‑ ‑ ‑

HER HONOUR:   Mr Walker, I will allow you to say something, but, Mr Strickland, does your client intend to seek a further application for a stay on the basis of the hearing date of the special leave application?

MR STRICKLAND:   Your Honour, we could do so, but can I indicate this?  In the argument before Justice Mildren, we indicated that, given our inquiries in relation to the High Court Registry, that it was possible we could get a special leave on that earlier date, and we asked Justice Mildren if that was determinative could the stay application before Justice Mildren be deferred and his Honour said that was not determinative.  So, a further stay application before Justice Mildren on the basis that special leave would be granted, in my submission, based upon his own reasoning and his own

indication to us would get the same result.  We would not get the stay before Justice Mildren.

HER HONOUR:   Thank you.  Mr Walker.

MR WALKER:   Your Honour, I am so sorry.  An artefact, I am sure, of being remote physically from those instructing me, I should have drawn to attention, apropos my learned friend on the general importance point calling in aid the Police Act (NSW), section 213 ‑ ‑ ‑

HER HONOUR:   Yes.

MR WALKER:   The actual provisions of that section do not include the express advertence to “criminal responsibility” and simply use the expression “a member of the police force is not liable for any injury or damage caused by any act or omission”, et cetera, language that your Honour will recognise as surely from the heartland of civil liability in trespass or negligence and not anything to do with criminal responsibility.  So, the enticing possibility that special leave is being sought for an argument that may affect the understanding of the law applicable in New South Wales and not merely in South Australia and the Northern Territory should be resisted.  May it please the Court.

HER HONOUR:   Thank you, Mr Walker.  Mr Strickland, is the trial due to resume at 10.00 am Northern Territory time on Monday?

MR STRICKLAND:   It is, your Honour, however – it is, is the short answer.  I did indicate to Justice Mildren that if, not knowing at that stage whether a stay application should be heard on Friday that it could be heard on Monday, and his Honour did entertain the possibility that it could be adjourned till Tuesday.  I do not know if my learned friend, Mr Walker, would – if your Honour would countenance a ‑ ‑ ‑

HER HONOUR:   I need to deal with the timetable.  What I propose to do is reserve my decision and deliver a judgment at 9.30 am Sydney time on Monday.

MR STRICKLAND:   If the Court pleases.

HER HONOUR:   Can I just come back to the question of the stay application, I am really troubled by your submission about lack of utility, Mr Strickland.

MR STRICKLAND:   Yes, your Honour.

HER HONOUR:   Are you able to indicate whether your client would withdraw the application in the event that the stay application fails?

MR STRICKLAND:   I would need to get some instructions on that, your Honour.

HER HONOUR:   All right, can you do that?

MR STRICKLAND:   I am afraid, because of my location, I cannot do that immediately, your Honour.

HER HONOUR:   I see.

MR STRICKLAND:   If your Honour were content to allow – would your Honour be content to allow that in writing, that response?

HER HONOUR:   Yes, all right.  Mr Walker, can your client live with the proposed timetable that I set out earlier?

MR WALKER:   Yes, your Honour.

HER HONOUR:   And yours, Mr Strickland?

MR STRICKLAND:   I am sorry, could your Honour repeat that – apologies.

HER HONOUR:   Is the timetable that I proposed at the beginning of the hearing acceptable for the special leave application?

MR STRICKLAND:   Yes, it is, your Honour.

HER HONOUR:   All right.  For the moment I will make orders that the respondent file the response to the special leave application by 4.00 pm on Wednesday, 25 August 2021, the applicant file its reply by 4.00 pm on Tuesday, 31 August 2021 and the applicant file the application book by 4.00 pm on Thursday, 2 September 2021.  I assume that it goes without saying that the documents will be served on the opposing party as soon as they have been filed.

Mr Strickland, could your client please notify my chambers and Mr Walker’s client by 4.00 pm this afternoon, Sydney time, whether it will withdraw the special leave application in the event that the application for a stay is unsuccessful.

MR STRICKLAND:   We will do that, your Honour.

HER HONOUR:   Thank you.  I will reserve my decision and adjourn the proceedings to 9.30 am Sydney time, Monday, 23 August 2021.

MR WALKER:   May it please the Court.

AT 2.06 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 23 AUGUST 2021