High Court narrows 'good faith' defence in Zach Rolfe murder trial

Zach Rolfe will face a murder trial in the Northern Territory. Photo: file

Northern Territory policeman Zachary Rolfe won’t be allowed to use the defence that he simply acted in good faith in the exercise of his duties as a police officer when he shot and killed Kumanjayi Walker at the outback community of Yuendemu in 2019.

The High Court, which rules on significant matters of law, found this morning that Mr Rolfe could not use an immunity clause in police administration legislation. The clause means that police are not liable for acts carried out in “good faith” while exercising their duties.

Mr Rolfe’s murder trial has been repeatedly delayed by the effects of the pandemic and by legal challenges. It was set to begin on 23 August, but the prosecution urgently requested the High Court to stay the trial so it could seek leave to appeal part of a prior judgment by the Northern Territory Supreme Court.

The NT Supreme Court had ruled Constable Rolfe could argue he was not criminally responsible for Mr Walker’s death if the jury found he was acting in “good faith” in his role as a police officer during the arrest.

But the High Court agreed to intervene and rule on the matter on the basis that the death of an Aboriginal man by a police officer was a matter of gravest community concern and, therefore, any acquittal or conviction must be sound in law.

Section 148B(1) of the NT’s Police Administration Act says that a person cannot be civilly or criminally liable for something done in good faith in the exercise of their job. If relied upon in this case, the trial jury arguably would not need to decide whether Mr Rolfe had acted reasonably when he shot Mr Walker, because he would not be liable for his actions.

If he were then acquitted using the “good faith” defence, he could not be retried.

But today, the High Court found unanimously that the powers and functions allowed under the NT’s Police Administration Act were common law principles, and do compel individuals to act in a way that is reasonable and necessary.

The ruling means that Constable Rolfe will no longer be able to claim that he acted in good faith as he carried out his duties but must prove that his actions were reasonable. It’s also likely he will rely on a self-defence argument.

The 2020 committal hearing was told that three shots were fired on the night Mr Walker was killed. Constable Rolfe had been stabbed with scissors by Mr Walker before the first shot was fired at point-blank range. Body-camera footage of the attempted arrest was shown during the committal hearing.

Mr Rolfe faces a murder charge and supplementary charges of manslaughter and engaging in a violent act causing death. He has been suspended on full pay from the Northern Territory police and was granted bail to live in Canberra. It’s expected the trial will now begin in February.