HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJTHE QUEEN APPLICANT
AND
ZACHARY ROLFE RESPONDENT
The Queen v Rolfe
[2021] HCA 38
Date of Hearing: 2 November 2021
Date of Judgment: 10 November 2021D2/2021
ORDER
1.Special leave to appeal granted.
2.Appeal allowed.
3. Set aside order 3 of the orders of the Full Court of the Supreme Court of the Northern Territory of Australia made on 13 August 2021 and, in its place, order that:
(a)Question 3 is restated as follows: "Does a 'function' under s 148B of the Police Administration Act 1978 (NT) include the functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"
(b)The answer to question 3 is: "No, the relevant powers and functions to which s 148B of the Police Administration Act 1978 (NT) applies are those of the common law, which s 25 of the Act confers, and the power of arrest in s 124 of the Act."
On appeal from the Supreme Court of the Northern Territory
Representation
P M Strickland SC with S G Callan SC and S Palaniappan for the applicant (instructed by Director of Public Prosecutions (NT))
B W Walker SC with J D Edwardson QC for the respondent (instructed by Tindall Gask Bently)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Rolfe
Criminal law – Defences – Where respondent member of Northern Territory Police Force – Where respondent alleged to have fatally shot deceased after being deployed to arrest – Where respondent charged with murder and alternative offences under Criminal Code (NT) – Where s 148B of Police Administration Act 1978 (NT) ("Act") provides person "not civilly or criminally liable" for act done or omitted to be done "in good faith" in actual or purported "exercise of a power or performance of a function under" Act – Where s 5(2) of Act lists "core functions" of Police Force – Where s 25 of Act provides member of Police Force "shall perform the duties and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on" member – Whether "function" under s 148B of Act includes core functions listed in s 5(2) of Act.
Criminal practice – Question of law arising before trial – Where trial judge referred four questions to Full Court of Supreme Court of Northern Territory of Australia – Where questions referred on basis of "assumed facts" – Where "assumed facts" not agreed and likely to be disputed at trial – Where Full Court reformulated third question – Whether third question hypothetical – Whether Full Court erred in reformulating third question.
Words and phrases – "assumed facts", "common law powers", "defence", "exercise of a power or performance of a function", "fragmenting the ordinary course of criminal proceedings", "hypothetical", "powers and functions of a police officer", "protection…
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- AGLC
- The Queen v Rolfe [2021] HCA 38
- Case
- [2021] HCA 38
- Decision Date
CaseChat Overview and Summary
The legal issues before the High Court included whether the term "function" as used in s 148B of the *Police Administration Act* encompassed the "core functions" of the Police Force as listed in s 5(2) of the same Act. Additionally, the Court considered whether the Full Court had erred in reformulating a question of law referred to it by the trial judge, and whether that reformulated question was hypothetical.
The High Court allowed the appeal, setting aside one of the orders of the Full Court. The Court restated the third question referred to the Full Court to clarify its scope. In answering the reformulated question, the High Court held that a "function" under s 148B of the *Police Administration Act* does not include the core functions listed in s 5(2). Instead, the Court determined that s 148B applies to the common law powers of police officers, as conferred by s 25 of the Act, and specific statutory powers such as the power of arrest under s 124 of the Act. The Court reasoned that the protection afforded by s 148B is limited to the exercise of powers and performance of functions that are themselves conferred or imposed by the Act or other laws, rather than the general objects or purposes of the Police Force outlined in s 5(2).
Orders
Orders of the court
1. Special leave to appeal granted.
2. Appeal allowed.
3. Set aside order 3 of the orders of the Full Court of the Supreme Court of the Northern Territory of Australia made on 13 August 2021 and, in its place, order that:
(a) Question 3 is restated as follows: "Does a 'function' under s 148B of the Police Administration Act 1978 (NT) include the functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"
(b) The answer to question 3 is: "No, the relevant powers and functions to which s 148B of the Police Administration Act 1978 (NT) applies are those of the common law, which s 25 of the Act confers, and the power of arrest in s 124 of the Act."
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
In its application for special leave to appeal, the Crown submitted that Question 3 as posed by the Full Court should have been answered "no". Alternatively, this Court should answer the question as drafted by the parties "no".The provisions of the Police Administration Act 1978 (NT) Section 148B, "Protection from liability", appears in Div 2 of Pt VIIA of the Police Administration Act 1978 (NT) ("the PA Act"). It is in these terms:"(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 a function under this Act.(2)Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.(3)In this section:exercise, of a power, includes the purported exercise of the power.performance, of a function, includes the purported performance of the function." Section 124, "Arrest of person where warrant issued", appears in Div 3 of Pt VII, which Part is entitled "Police powers". It provides:"(1)A member of the Police Force may, without warrant, arrest and take into custody any person who the member has reasonable cause to believe is a person for whose apprehension or committal a warrant has been issued by any Supreme Court Judge, Local Court Judge or justice of the peace.(2)Where a member arrests a person under subsection (1), the member shall, as soon as reasonably practicable thereafter, produce or cause to be produced to the person the warrant authorising his apprehension or committal, where the person has been apprehended in pursuance of a warrant authorising his apprehension, and the person shall be charged with the offence specified in the warrant." Part II of the PA Act is entitled "Police Force of the Northern Territory". Section 5 is located in Div 1 – "Establishment of Police Force" – of Pt II. It provides:"(1)There is established by this Act the Police Force of the Northern Territory.(2)The core functions of the Police Force are:(a)to uphold the law and maintain social order; and(b)to protect life and property; and(c)to prevent, detect, investigate and prosecute offences; and(d)to manage road safety education and enforcement measures; and(e)to manage the provision of services in emergencies." Section 25, "Function of members", is in Div 3 of Pt II and provides:"Subject to this Act, a member shall perform the duties and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on him." Section 26(1), which follows, relevantly provides that:"A person shall not exercise or perform any of the powers, functions or duties conferred or imposed upon a member of the Police Force by a law of the Territory unless he or she has taken and subscribed an oath in the form in the Schedule."The Full Court At issue before the Full Court, as relevant to this application, was whether s 148B applied to and provided protection for the functions stated in s 5. Southwood J and Mildren A-J reasoned that, by virtue of the oath members of the Police Force take, and the fact that the Police Force can only act through its members, its members are under an obligation and have a duty to carry out the core functions stipulated in s 5 of the PA Act[4]. Section 25, in its reference to duties, obligations, powers and privileges conferred or imposed on police officers "by any law in force in the Territory", includes the common law and statutory law[5], they observed. Their Honours concluded[6] that s 5, when considered in the light of s 25 and the oath taken by a member of the Police Force, makes it part of a police officer's functions and duties to protect life and prevent offences. So understood, s 148B applies to those s 5 functions[7].[4]R v Rolfe [No 5] [2021] NTSCFC 6 at [107].[5]R v Rolfe [No 5] [2021] NTSCFC 6 at [108].[6]R v Rolfe [No 5] [2021] NTSCFC 6 at [111].[7]R v Rolfe [No 5] [2021] NTSCFC 6 at [127].