Murder trial of Zach Rolfe delayed further

The High Court has agreed to hear a prosecutors’ challenge about whether the NT cop can claim immunity from civil and criminal liability under police administration laws.

Zachary Rolfe leaves the High Court in Canberra. Picture: Gary Ramage

The highly anticipated murder trial of Zach Rolfe will be delayed further after the High Court agreed to hear the crown prosecutors’ challenge about whether the NT cop can claim immunity from civil and criminal liability under police administration laws.

The High Court on Friday decided to grant the crown prosecutors an opportunity to present their reasons for why the defence should not be used, which will be heard by the full bench at a later date.

Constable Rolfe, 30, has pleaded not guilty to murdering 19-year-old Aboriginal man Kumanjayi Walker during a botched attempted arrest in the outback community of Yuendumu in 2019.

Kumanjayi Walker.

On the eve of the trial the prosecution sought special leave from the High Court to appeal a decision made by the NT Supreme Court’s full bench about whether Constable Rolfe could also claim immunity under the territory’s Police Administration Act.

That broad defence ­requires only that a jury be reasonably persuaded Constable Rolfe could have been acting in good faith when he shot Walker for them to find him not guilty.

Under NT law, if Constable Rolfe were to be acquitted using the ­immunity defence and the ruling was later found to be incorrect, he could not be retried.

Philip Strickland SC, acting for the crown, told the court on Friday that under the ruling a police officer could be completely protected from criminal or civil liability even if they don’t act appropriately in the course of their duties.

Chief Justice Susan Kiefel asked whether his essential argument was that the immunity defence is one given collectively to the police rather than to an individual, to which Mr Strickland said “that’s correct.”

Justice Kiefel said the question about whether the shooting had occurred in “good faith” was a matter for the jury. “Our task is to see whether those questions are open to the jury,” she said.

Constable Rolfe’s lawyer Bret Walker SC said the jury should be able to give consideration whether his client acted in good faith and it would be an error to delay the proceedings any further.

But Mr Strickland fired back, declaring that due to the “particular circumstances of this case” – that being the murder of an indigenous man by a police officer – “an acquittal on an incorrect basis should not be tolerated.”

He said the ultimate ruling on Constable Rolfe’s defence would also have significant repercussions for the use of police controls as other cases in South Australia had been adjourned to await the outcome of the High Court’s decision.

Constable Rolfe was joined in the Canberra courtroom by his parents and sat silently throughout the proceedings.

It is rare for the High Court to intervene in criminal matters. Last month justice Jacqueline Gleeson granted a stay to delay the trial just one hour before the jury was due to be empanelled, declaring there would be an injustice if there was an acquittal on the basis of a wrong legal construction.

She said a case that involved the alleged murder of a young Aboriginal man by a serving police officer was a matter of the gravest community concern.

Friday’s decision means it is likely there will be a long delay before the trial can be held, however the High Court noted they would take into account the urgency of the matter when setting a date for the next hearing.