Reformulation of Questions in Trial Disputed by Parties
The Queen v Rolfe [2021] HCA 38 (10 November 2021)
The respondent, a member of Northern Territory Police Force, was alleged to have fatally shot the deceased after being deployed to arrest.
The respondent was charged with murder and alternative offences under Criminal Code (NT). On trial, the judge referred questions to the Full Court of the Supreme Court of Northern Territory of Australia which was reformulated by the Full Court as "based upon the assumed facts". The parties are in dispute over reformulation of the third question.
Facts:
The respondent is a member of the Police Force of the Northern Territory with the rank of Constable, charged with one count of murder; in the alternative, manslaughter; and in the further alternative, engaging in a violent act which caused the death of a person.
On 9 November 2019 the respondent and a number of other police officers were deployed from Alice Springs to assist in the arrest of Charles Arnold (Kumanjayi) Walker ("the deceased"). The respondent directed the deceased to put his hands behind his back. The deceased did not do so. He stabbed the respondent in the left shoulder with a pair of scissors. The respondent shot the deceased three times.
Prior to the commencement of the respondent's trial, the trial judge referred four questions to the Full Court of the Supreme Court of the Northern Territory ("the Full Court") under s 21 of the Supreme Court Act 1979 (NT).
The questions were referred to on the basis of a set of "assumed facts". The third question states "at the time the accused fired the second and third shots resulting in the deceased's death, "was he acting in the exercise or purported exercise of a power or the performance or purported performance of a function under the Police Administration Act 1978, such that s 148B of that Act arises for the jury's consideration?".
The question was reformulated by the Full Court as "based upon the assumed facts, at the time the accused fired the second and third shots resulting in the deceased's death, would it be open to the jury to find that the accused was acting in the exercise or the purported exercise of a power, or the performance or purported performance of a function under the Police Administration Act, such that section 148B of the Act arises for the jury's consideration?". Where s 148B of that Act provides for the good faith defence on the part of the respondent, the answer given by the Full Court was "Yes". In its application for special leave to appeal, the Crown submitted that Question 3 as posed by the Full Court should have been answered "no".
Issues:
I. Whether or not the Full Court erred in reformulating the third question.
II. Whether s 148B applied to and provided protection for the functions stated in s 5.
Applicable law:
Interpretation Act 1978 (NT) s 55 - pursuant to which Pt VII of the PA Act, which is headed "Police powers", which heading is to be read as part of the PA Act.
Police Administration Act 1978(NT) s 5(2) - lists "core functions" of the Police Force.
Police Administration Act 1978(NT) s 25 - provides member of Police Force "shall perform the duties and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on" member
Police Administration Act 1978(NT) s 124 - provides that a member of the Police Force may, without warrant, arrest and take into custody any person who the member has reasonable cause to believe is a person for whose apprehension or committal a warrant has been issued by any Supreme Court Judge, Local Court Judge or justice of the peace.
Police Administration Act 1978(NT) s 148B - provides person "not civilly or criminally liable" for act done or omitted to be done "in good faith" in actual or purported "exercise of a power or performance of a function under"
R v Rolfe [No 5] [2021] NTSCFC 6 at [107] - provides that the protection afforded by s 148B did extend to the performance of the functions in s 5 of the PA Act.
Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71 - contemplates that the power exercised or function performed will be of a kind which may result in the commission of a crime or a civil wrong, which may be contrasted with powers or functions which are of a more general character and do not require any special authority.
Binsaris v Northern Territory (2020) 94 ALJR 664 at 670-671 [28] - provides that the common law powers include those to prevent the commission of a crime to apprehend a person suspected of having committed an offence.
Enever v The King [1906] HCA 3 - provides that the common law powers include those to prevent breaches of the peace.
R v Turner [1962] VicRp 2; [1962] VR 30 - provides that the exercise of the common law powers, like the statutory powers, is subject to constraints, such as doing only that which is reasonable and necessary.
Bass v Permanent Trustee Co Ltd [1999] HCA 9 - accepted that a question was not hypothetical where it proceeded on the basis of facts which were accepted to be true, as on a demurrer.
Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 - held that it was sufficient that the facts be identified as those which the prosecution would seek to establish at trial.
Sankey v Whitlam [1978] HCA 43 - emphasised how rare it is to make orders which would have the effect of fragmenting the ordinary course of criminal proceedings.
R v Elliott [1996] HCA 21; (1996) 185 CLR 250 at 257 - provides that making orders which fragment the ordinary course of proceedings is undesirable due to its delay.
Analysis:
The respondent argued that this matter was not appropriate for a grant of special leave because it depended upon facts which were not proved and had not been agreed. It was contended that Question 3 in the present case does not depend on facts assumed to be correct and in such sense is hypothetical. The assumed facts are bound up with the question of law so that the underlying question, whether a defence based on ss 5 and 148B is available to the respondent and may be put to the jury and answered.
By virtue of the oath members of the Police Force take, and the fact that the Police Force can only act through its members, its members are under an obligation and have a duty to carry out the core functions stipulated in s 5 of the PA Act. Their Honours concluded that s 5, when considered in the light of s 25 and the oath taken by a member of the Police Force, makes it part of a police officer's functions and duties to protect life and prevent offences.
Protecting life and property, and preventing offences can only be performed by individual members of the Police Force. However, its text and its location in Div 1 of Pt II suggest that its purpose is to identify the principal functions of the Police Force, but not to confer any particular power or function on its members.
The text and legislative history of s 148B do not point to the application of s 148B to the performance by members of the Police Force of the core functions under s 5(2). When s 148B was introduced in 2005, it extended protection, from civil liability, to members of the Police Force.
It has been necessary for the Court to express its conclusion on the substantive question at issue but it should not be assumed that this Court will do so in every case. Otherwise, the effect and delay which is caused by fragmenting the ordinary course of criminal proceedings would be a commonality, running counter to expediting hearings.
Conclusion:
The protection afforded by s 148B extends to the performance of the functions in s 5 of the PA Act.
The special leave to appeal is granted. The appeal should be allowed.
The Court sets aside order 3 of the orders of the Full Court of the Supreme Court of the Northern Territory of Australia made on 13 August 2021 and, in its place, order that:
(a) Question 3 is restated as follows: "Does a 'function' under s 148B of the Police Administration Act 1978 (NT) include the functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"
(b) The answer to question 3 is: "No, the relevant powers and functions to which s 148B of the Police Administration Act 1978 (NT) applies are those of the common law, which s 25 of the Act confers, and the power of arrest in s 124 of the Act."
