Zach Rolfe murder trial to go ahead as planned unless High Court intervenes before Monday

The murder trial of NT Police officer Zach Rolfe will go ahead as planned on Monday, pending an 11th hour bid for intervention by the High Court of Australia.

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THE murder trial of NT Police officer Zach Rolfe will go ahead as planned on Monday, pending an 11th hour bid for intervention by the High Court of Australia.

Rolfe has pleaded not guilty to the unlawful killing of 19-year-old Kumanjayi Walker in a police shooting in Yuendumu during an arrest gone wrong in 2019.

On Thursday, Crown prosecutor Philip Strickland SC applied for the trial to be stayed to allow the High Court to hear an application for an appeal of an earlier ruling of the NT Supreme Court which found an immunity defence under section 148B of the Police Administration Act could be put to the jury.

Mr Strickland said the decision to allow the “good faith” defence was “manifestly wrong” as it was inconsistent with a similar provision in the Criminal Code that requires police officers’ actions to be reasonable for the immunity to apply.

“If it is correct, a police officer could shoot a suspect dead and avoid criminal liability under s148B if a jury finds a reasonable possibility he was, in good faith, performing a core function,” he said.

“Those functions are very broadly couched — maintaining social order, protecting life, preventing the commission of an offence.”

Mr Strickland said the reasonableness clause in the Criminal Code provision served “to protect the citizens of the NT against the excessive use of force” by police.

“We say the effect of the full bench ruling is, really, to very significantly widen the immunity in s148B and in effect, to undermine those protective provisions in the Criminal Code by removing the issue of reasonableness,” he said.

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In reply, Rolfe’s barrister David Edwardson QC said there was “no reason” to suspect any error in the reasoning of the Supreme Court judges, “who were all fiercely in agreement on this particular question”.

“There is, in our respectful submission, absolutely no reason to think that the High Court is likely to intervene and particularly at this stage when the trial has already commenced,” he said.

“The notion that my client would have his trial put off into the ether for a very significant and potentially substantial period of time cannot and should not be countenanced.”

In declining to grant the stay, Justice Dean Mildren said he thought the prospect of success in the High Court was “limited” and on balance, the trial should proceed.

“The accused has now had the spectre of the most serious charge known to the law threatening his liberty for almost two years,” he said.

Zach Rolfe arrives at the NT Supreme Court on Friday. Picture: Glenn Campbell

“Approximately 50 witnesses have endured the uncertainty of the requirement of having to give evidence at the same time.

“In the case of the police witnesses, the deleterious impact of the burden of giving evidence in relation to the actions of a colleague is self-evident.

“In the case of the civilian witnesses in the community at Yuendumu, it could be fairly said that the burden is equally if not more intolerable.”

Justice Mildren said the Crown could still lodge an appeal after the trial was complete, although any decision on the application of s148B at that point would not affect an acquittal.

“Although it will not be of much comfort to the Crown in this case, it will resolve the question of law for the future, should the High Court decide to grant special leave,” he said.

But Mr Strickland said he would now apply for the High Court to grant a stay of its own, either on Friday or before the trial is due to begin on Monday morning.

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