Aboriginal and Torres Strait Islander readers are advised that this article includes the names and images of the dead.
A High Court ruling today thwarted Northern Territory constable Zachary Rolfe’s ability to argue that he was acting in “good faith” as a police officer when he hit Yuendumu, North 19. One-year-old Warlpiri man Kumunjay Walker was shot dead. Area.
Rolfe has been charged with murder in connection with Walker’s death at his family’s home in November 2019. He is also facing alternate charges of murder and involvement in the violent act that led to Walker’s death.
The start of the trial was delayed against the background of legal arguments and decisions on the availability of the defendants. Particularly controversial has been the availability of police defense protection.
The full bench of the Northern Territory Supreme Court previously delivered a decision that confirmed that Rolf could argue the special police defense before a jury, including the “goodwill” defence.
The NT Court held that Rolfe was fulfilling a police function authorized by the Police Administration Act 1978 (Northern Territory) as he was executing a warrant for Walker’s arrest, potentially including when he fired all three shots. Therefore, the court said, Rolf could argue the police defense defense.
The High Court stayed the trial to allow prosecutors to appeal against the NT Supreme Court’s decision. The High Court delayed the trial, which is now set to begin hearing on the application in February 2022.
What is a “good faith” defense?
The defense’s argument that Rolfe is exempt from criminal liability relied on three legal propositions: he was acting in good faith as a police officer, acting in the proper performance of his duties, and acting in self-defense. Had been.
The “goodwill” defense is set out in the NT’s Police Administration Act. It states that the police are not liable, either civilly or criminally, when an action is taken
in good faith in the exercise of any power or performance of any act under this Act.
NT police relied on this defense in a recent anti-discrimination case brought by a tribal man who claimed he was racially targeted when police pulled him over for alcohol and drug tests .
The man, who was not speeding or driving in a dangerous manner, said the police stop and test was discriminatory and not random. He argued that the police were “always” harassing him and his family.
Although the Civil and Administrative Tribunal suspected that the drug test was random, it still considered the conduct of the police to be in good faith. This absolved the officer and the police force of potential liability.
What was the argument challenged by the prosecution in the High Court?
In Rolfe’s case, the prosecution sought to challenge the “good faith” defense before the High Court. Prosecutors probably considered this defense the easiest for Rolfe’s lawyers to prove before a jury, due to its criteria.
Since this depends on a subjective mental state, Rolfe may have argued that he believed the shooting took place in “good faith” while he exercised his power as a police officer. .
For this defense, the jury does not need to consider whether a reasonable person in Rolfe’s circumstances would have shot Walker multiple times and at close range. It remains only to decide whether Rolfe considers himself to be acting in “good faith” in performing his duties.
Read more: Kumanjay Walker murder trial for an indigenous death in custody will be the first in the NT. Why has it taken so long?
Of course, the jury would need to consider whether Rolfe was acting in “good faith” based on all evidence that was not a conviction. Nonetheless, this was a stronger basis for potential immunity than other defenses.
The High Court unanimously found that a “good faith” defense was not available until it could be established that Rolfe was exercising a power under the Police Administration Act, including arrest. This is important because it is disputed whether the fatal second and third bullets were justified and required for arrest.
Therefore, the High Court overturned the NT Supreme Court’s decision. However, the High Court did not rule out the availability of a “good faith” defense in other cases involving allegations of police misconduct.
What defenses are still available to Rolf?
Rolfe still has two other police defense defenses available.
The first is under the Criminal Code Act 1938 (NT), which states that law enforcement officers can claim immunity from criminal liability in situations where they are properly performing their duties.
The second is that Rolf acted in self-defense, which is prescribed under the same NT criminal code. This defense requires evidence that a person believed their conduct was necessary to defend themselves, and that their conduct was an appropriate response to the circumstances as they perceived them.
Unlike the “good faith” defense, these two other defenses require evidence that the firing was objectively justified in response to the circumstances.
Police’s other defense claims
In the 2002 police shooting of Mr Jongmin, an 18-year-old Aboriginal man in the NT, the officer claimed it was “a serious error of judgment”.
The indictment for a dangerous act was quashed because it was brought outside the Police Administration Act, which requires charges against police officers to be brought within two months. It failed on procedural grounds.
Read more: Police body cameras may provide the best evidence – but better regulation is needed
Recently, a northern region local court considered the availability of police immunity in another case involving a senior constable who attacked three tribal people in 2020.
Similar to Rolfe, the officer argued that he was acting properly to perform his duties. This was the first time the defense had been tested in the field.
The court found, however, that the officer had not proved the defense due to discrepancies in the evidence. He was found guilty on all counts: two counts of aggravated unlawful assault and one charge of unlawful assault.
Rolfe’s Supreme Court trial will determine whether other defenses can be successfully argued in the case involving the police firing. It will also hinge on how the jury considers the evidence and credibility of witnesses and defendants.
Ultimately, however the court decides, the trial will have significant implications for the ongoing relationship between police and Aboriginal communities and perceptions of justice in the Northern Territory and across Australia.