The Queen v Rolfe (No 5)

Case [2021] NTSCFC 6

CITATION:The Queen v Rolfe (No 5) [2021] NTSCFC 6

PARTIES:THE QUEEN

v

ROLFE, Zachary

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  ON REFERENCE of Questions of Law Reserved for the Full Court of the Supreme Court

FILE NO.:FSC 3 of 2021 (21942050)

DELIVERED:  13 August 2021

HEARING DATE:  28 July 2021

JUDGMENT OF:  Southwood, Kelly and Blokland JJ, Mildren and Hiley AJJ

CATCHWORDS:

CRIME – Murder – Relationship between defences under ss 48BD and 208E of the Criminal Code and s 148B of the Police Administration Act – Good faith – Self-defence – Reasonable conduct

STATUTORY INTERPRETATION – Subsequent legislation – Multiple statutory defences – Two discrete statutes – No implied repeal – No inconsistency – Legislative intention

Criminal Code 1983 (NT) s 28, s 43AA, s 43BD, s 156, s 160, s 161A, s 208E
Correctional Services (Related and Consequential Amendments) Act 2014 (NT) s 57
Food Act 2004 (NT) s 37, 130
Fisheries Act 1988 (NT) s 7, s 33
Fisheries Amendment Legislation 2016 (NT) s 33, s 33A, s 33B, s 33C
Gaming and Betting Act 1912 (NSW) s 19
Gaming Control Act 1993 (NT) s 28, s 68, s 79
Interpretation Act 1978 (NT) s 17, s 62A, s 62B
Landlord and Tenant (Amendment) Act 1948 (NSW) s 62
Liquor Act 2019 (NT) s 23, s 142, s 155, s 156, s 157 s 212
Meat Industries Act 1996 (NT) s 9, s 62
National Security Act 1939-40 (Cth) s 13
Police Act 1990 (NSW) s 80
Police Act 1988 (SA) s 45, s 65
Police Administration Act 1978 (NT) s 5, s 25, s 26, s 34G, s 43BD, s 94, s 123, s 124, s 132, s 138B, s 147FA, s 147FR, s 148A, s 148B, s 148F, s 161, s 162, s 163,
Police Administration Amendment Act 2016 (NT) s 7
Police Administration Amendment (Powers and Liability) Act 2005 (NT) s 10, s 27
Private Security Act 1995 (NT) s 35, s 59
Road Traffic Act 1961 (SA) s 47
Sentencing Act 1995 (NT) s 43
Statute Law Revision Act 2005 (NT) s 35
Supreme Court Act 1979 (NT) s 21,
Terrorism (Emergency Powers) Act 2003 (NT) s 16, s 17, s 18, s 19, s 20, s 35
Territory Parks and Wildlife Conservation Act 1976 (NT) s 93, s 110
Tobacco Control Act 2002 (NT) s 47, s 56

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Associated Minerals v Wyong Shire Council [1974] 2 NSWLR 681; (1974) ALR 353; Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538; Blackpool Corporation v Starr Estate Co. [1922] 1 AC 27; Butler v Attorney General (Vic) (1961) 106 CLR 268; Commissioner of Police (New South Wales) v Eaton [2013] HCA 2; (2013) 252 CLR 1;“CMS” (A Child) v Giacomini [2003] WASCA 42; Director of Public Prosecutions (Cth) v…

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AGLC
The Queen v Rolfe (No 5) [2021] NTSCFC 6
Case
[2021] NTSCFC 6
Decision Date

CaseChat Overview and Summary

This matter concerned referred questions of law arising from a criminal trial. The defendant, a police constable, was facing charges, and the proceedings involved the interpretation of various statutory provisions relating to the conduct of police officers. The dispute centred on the scope of protection afforded to police officers under the *Police Administration Act* (NT) and its relationship with defences available under the *Criminal Code* (NT), particularly in circumstances involving the use of force.

The court was required to determine the applicability of s 148A of the *Police Administration Act* to s 148B of the same Act in its current form. Specifically, the court had to consider whether s 148A, which refers to the "performance of duties as a member," extended to the protection from criminal liability provided by s 148B, which covers acts done in good faith in the exercise of a power or performance of a function under the Act. Further, the court needed to ascertain whether s 148B applied to acts done by a police officer acting as a "public official" under an "authorising law," or if its protection was limited to actions taken directly under the *Police Administration Act*. The court also considered whether the defendant's actions, particularly the firing of shots, were undertaken in good faith within the exercise of a power or performance of a function under the *Police Administration Act*, especially when self-defence was also invoked.

The court reasoned that s 148A of the *Police Administration Act* did not apply to s 148B in its current form. This conclusion was based on the legislative history, noting that s 148B had been repealed and re-enacted in significantly different terms, while s 148A remained largely unamended and continued to have application in other areas, such as vicarious liability and claims for police torts. The court held that s 148B should be construed according to its plain terms, which provide protection for acts done in good faith in the exercise of a power or performance of a function *under the Police Administration Act*. The protection did not extend to acts done by police officers acting as public officials under separate authorising laws. The court also clarified that s 148A did not operate in reverse to deem an act done under the *Police Administration Act* as being done in the capacity of a public official under an authorising law.

The court answered the referred questions as follows: Question 1 was answered "No," meaning s 148A does not apply to s 148B. Question 2 was also answered "No," indicating that a member acting under the *Police Administration Act* is not acting in the capacity of a public official under an authorising law for the purposes of s 148A. Regarding Question 3, the court agreed with the Crown's proposition that the applicability of s 148B turned on whether the defendant fired the shots in good faith within the exercise of a power or performance of a function under the *Police Administration Act*, but noted that High Court authorities suggested this would only apply if the defendant genuinely believed their actions were under their power to arrest. The court indicated that the defence invoking self-defence under s 43BD of the *Criminal Code* might be inconsistent with such a genuine belief.

Orders

Orders of the court

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Background

Background to the litigation

The contents of the assumed facts and annexures do not constitute concluded facts. Nor do they constitute admissions made by the parties or agreed facts. However, the documents do contain some facts not in dispute, some facts the Crown will seek to prove at trial, and some facts the defence will press. The Court received the documents to provide a context for the resolution of the referred questions. They were received on a similar basis to that approved by the High Court in Director of Public Prosecutions (Cth) v JM.[1] The issues of law raised by the referred questions are concerned with how the law applies to the facts of this particular case. While the referred questions are contingent on facts yet to be established, the materials provided to the Court demonstrate that the referred questions are not hypothetical nor academic questions. The assumed facts The assumed facts can be summarised as follows. The defendant has the rank of Constable. In 2016 he was posted to Alice Springs. In November 2017 he became a member of the Alice Springs Immediate Response Team which provides additional general duty support and can immediately respond to “high risk” incidents. On 26 June 2019, Judge Birch convicted the deceased of aggravated assault, assault police and other offences. Judge Birch sentenced him to 16 months imprisonment, suspended after eight months and backdated to 22 February 2019. Judge Birch imposed 10 conditions on the suspended part of the deceased’s sentence including: (a) wearing an approved electronic monitoring device; and (b) completing the residential rehabilitation program provided by the Central Australian Aboriginal Alcohol Program Unit (“CAAAPU”) in Alice Springs. On 21 October 2019, the deceased was released from the Alice Springs Correctional Centre, fitted with an electronic monitoring device and entered CAAAPU. In the early hours of 29 October 2019, he removed his electronic monitoring device and left CAAAPU. These acts constituted a breach of conditions of his suspended sentence. On 5 November 2019, a warrant issued for the arrest of the deceased for breach of conditions of his suspended sentence. The warrant issued under s 43 of the Sentencing Act 1995 (NT). On 6 November 2019, Senior Constable First Class Christopher Hand and Senior Constable Lanyon Smith attended House 577 at Yuendumu to arrest the deceased for breach of his suspended sentence. The deceased armed himself with a small axe, threatened the police officers with the axe and fled. A body worn camera captured the incident. If proven, the incident amounts to the criminal offence of assault police. At 3 pm on 7 November 2019, Sergeant Evan Kelly briefed his patrol group including the defendant about the deceased and told them he was an arrest target. On the same day, the defendant viewed the body worn video of the axe incident several times. On 9 November 2019, following a request by Sergeant Julie Frost, the Officer in Charge of the Yuendumu police station, the defendant, Senior Constable Anthony Hawkings, Constable Adam Eberl, and Constable James Kirstenfeldt travelled to Yuendumu. On the same day Senior Constable Adam Donaldson, a member of the police dog operation unit, also travelled to Yuendumu.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SOUTHWOOD J
Fifth, the legislative history of s 148A and s 148B of the Police Administration Act supports the view that s 148A does not apply to s 148B in its current form. With one minor exception,[20] the Legislature has not amended s 148A since 2005 and it still has work to do in the operation of the regime dealing with claims of alleged tortious acts by members of the police force. While s 148B was repealed and re-enacted in completely different terms. Conclusions on Questions 1 and 2 For the reasons set out above, s 148A of the Police Administration Act does not apply to s 148B. Section 148B of the Police Administration Act is to be construed according to its terms. Section 148B of the Police Administration Act does not apply to acts done by a member only if the member is acting as a “public official” under an “authorising law”. We would answer to Question 1: “No”. However, the protection provided by s 148B only applies to acts done or omitted by a person (including a police officer) in good faith in the exercise of a power or performance of a function under the Police Administration Act. The protection provided by s 148B does not extend to acts done or omitted by police officers acting as public officials under an authorising law. As to Question 2, the effect of s 148A(1) of the Police Administration Act is that an act done or omitted by a member as a “public official” under an “authorising law” is taken to have been done or omitted by the member in the performance (or purported performance) of duties as a member. The subsection does not have the reverse effect, namely that an act done by a member under the Police Administration Act is taken to have been done by the member in the capacity of a “public official” under an “authorising law”. A member who acts under the Police Administration Act is not under s 148A of the Police Administration Act, or otherwise, acting in the capacity of a “public official” under an “authorising law”. We would answer Question 2: “No”.Question 3 The Crown submits that the answer to referred question 3 turns on whether the defendant fired the second and third shots (one of which was fatal) in good faith “in the exercise, or purported exercise, of a power or the performance, or purported performance, of a function under the [Police Administration Act]”. We agree with the Crown’s starting proposition. However, the Crown also submits that a succession of High Court authorities on similar provisions establish that s 148B of the Police Administration Act would only apply if the defendant genuinely believed that firing the second and third shots was done under his power to arrest the deceased. Further, the Crown says that on the Assumed Facts, and by the defence invoking self-defence under s 43BD of the Criminal Code, when he fired the second and third shots, the defendant was not exercising or purporting to exercise any power or function under the Police Administration Act. Nor is there any evidence to suggest that was the defendant’s genuine belief.

Ratio Decidendi

Legal Principle Established

Established by: SOUTHWOOD J

As currently enacted, s 148B of the Act provides protection to a person from civil and criminal liability for an act done or omitted to be done by the person in good faith in the exercise of a power or the performance of a function[4] under the Police Administration Act. The section differs from the repealed section in a number of important respects. First, protection, under the section, is for both civil and criminal liability. The protection is no longer limited to civil liability. Second, the protection is for acts done, or omitted, in the exercise of a power or the performance of a function. It is not for acts done or omitted in the performance of duties as a member. Third, the relevant powers and functions are powers and functions under the Police Administration Act. There is no reference in the text of s 148B to public officials, authorising laws or “the performance of duties as a member” which appear in s 148A. Consequently, there is a question as to whether s 148A now has any application to s 148B. Section 148A remains unamended. When enacted, s 148A applied in a part of the Act that only provided protection for members from civil liability. As s 148A has not been amended and the words “performance or purported performance of duties” remain in the section, and as those words no longer appear in s 148B, there is nothing to suggest that the application of s 148A extends to the protection of members from criminal liability. This interpretation is reinforced by the following considerations: (a)s 148B was repealed and re-enacted, not simply amended; (b)for good reason, the Legislature makes a distinction between the “performance of duties as a member” and the “exercise of a power or the performance of a function” by a member;(c)s 148B(1) states that it applies to acts done or omitted by a person “under this Act”, that is, the Police Administration Act; and (d)s 148A still has work to do, it applies to the provisions for vicarious liability and procedures for making a claim for police torts. Further, the authorising laws themselves commonly provide protection from civil and criminal liability for acts done or omitted by public officials under those Acts in similar terms to s 148B(1) of the Police Administration Act. Consequently, further protection under the Police Administration Act would seem to be unnecessary, and there is no reason to differentiate between the protection provided for the acts done or omitted by police officers as public officials, on the one hand, and other persons as public officials on the other hand. Following are two examples of the protective provisions of authorising statutes. Subsection 9(3) of the Meat Industries Act 1996 (NT) provides that every member of the Police Force is an inspector for the purposes of this Act. Section 62 of the Meat Industries Act states:Where an inspector does an act or makes an omission in good faith:(a) in the exercise or purported exercise of a power; or(b) in the performance or purported performance of a function,under this Act, no action, claim or demand, either civil or criminal, in respect of that act or omission lies, or shall be commenced or allowed, against the Territory, the Chief Inspector or an inspector.