The trial of a police officer charged with murder will be further delayed after the high court referred a decision on granting special leave to appeal to the full bench.
Northern Territory police officer Zachary Rolfe is charged with murdering Kumanjayi Walker in November 2019. He has pleaded not guilty.
The prosecution applied to the high court for leave to appeal a decision on Rolfe’s potential defences earlier this year. An NT supreme court ruled that Rolfe’s lawyers could argue in his defence that he shot Walker while believing “in good faith” that he was performing his duties as a police officer.
A stay in the trial was granted until the high court could hear the application on Friday. But the application has been referred to the full bench, to be argued at a later date.
The court foreshadowed that priority may be given to hearing the matter. If the application is granted, the appeal will be decided at the same time.
According to the assumed facts in the case, Rolfe shot Walker three times as he tried to arrest him in the remote community of Yuendumu.
It is the second and third shots, fired when the gun was no further than five centimetres away, that are the subject of the murder charge. Walker had been armed with a pair of scissors, which he had used to stab Rolfe before he was shot.
Prosecutor Philip Strickland SC told the high court during an earlier hearing last month that the full court of the NT supreme court’s ruling “eviscerated” protections provided to the community against the use of force by police.
“That it is open for a jury to conclude that the respondent was not criminally liable at the time he fired those lethal shots … if the jury find there is a reasonable possibility he is acting in good faith … he would avoid criminal liability without any consideration as to whether the use of force is reasonable in the circumstances,” Strickland said.
“We say that the reasoning of the full court really eviscerates the protection … provide[d] to the community about police officers, in particular, using lethal force where the law does not otherwise provide.
“It is an essential part of this case, of this murder case, to be tried.”
Bret Walker SC, for Rolfe, said during the same high court hearing that there was a “very clear, emphatic policy against fragmentation” of the trial process.
He said that the trial had already been delayed, referring to two instances when Covid-19 restrictions resulted in aborted court hearings.
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“The matters that I might characterise as being the social significance or community interest in the allegation of murder against a police officer acting as such are matters that were relied upon below to add to the usual imperative to have criminal proceedings heard as quickly as reasonably possible,’’ Walker said.
“It can hardly be said that this is a case that has been precipitant, that is unreasonably rapid, in its progress to trial.
“More recently, Your Honour has seen some unavoidable circumstances that have led to a delay in trial. Those are not matters that to the slightest degree indicate that this is a case which should, or could, with equanimity be viewed as appropriate further to be delayed.”