Australia: Kumanjayi Walker murder trial stayed as High Court considers good faith defence

NT police constable Zachary Rolfe entered the family home of Kumanjayi Walker in Yuendumu on 9 November 2019, in an attempt to arrest the 19-year-old Warlpiri man over having breached the conditions of a suspended sentence.

Despite the local police sergeant in charge having devised a nondisruptive way to take Walker into custody, Rolfe and constable Adam Eberl stormed the house.

According to Rolfe, he shot the teen at close range once, after Walker stabbed him with some scissors, and then twice more to protect Eberl.

Kumanjayi died two hours later in the Yuendumu police station. And Rolfe was subsequently charged with murder four days later.

A police officer being charged over the murder of a First Nations person is a distinctly rare event in Australia, despite the fact that Aboriginal deaths in custody have always been common occurrences within this settler colonial setting.

Indeed, if found guilty Rolfe would be the first Australian police officer ever convicted of the murder of a First Nations person.

However, last Monday, a last minute High Court decision saw the trial that was set to begin in the Northern Territory Supreme Court stayed to allow the higher court to deliberate upon one of the key findings made by territory judges in relation to the police officer's case.

The High Court intervened in the case less than an hour before it was set to take place on 23 August, as Crown prosecutor Philip Strickland SC sought special leave to appeal a recent decision made by the full bench of the NT Supreme Court in regard to Rolfe's defence.

The Supreme Court justices agreed earlier this month that Rolfe can argue three defences, which will act independently of each other. The first line of defence is that the now 30-year-old police officer was acting in self-defence, while the second position is that he was acting in the course of his duty.

But it's the third line of defence – that of acting in good faith – that's under question.

Section 148B of the Police Administration Act 1978 (NT) provides that “a person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act”.

The Police Administration Amendment Act 2016 (NT) inserted this relatively new protection from liability into the Police Administration Act. And it took effect on 29 September 2018.

What this rather broad protection means is that if Rolfe's lawyers can argue that he was simply performing a police function and did so in good faith – basically by his own account – he can be absolved of the crime of murder, regardless of whether his actions are objectively questionable.

Walker's family has welcomed the High Court's stay, which has been granted until 10 September, when the higher court will deliberate upon the matter. And it's now thought that the trial may not commence until 2022.

Since the Royal Commission Into Aboriginal Deaths in Custody handed down its final report in 1991, there have been close to 480 further First Nations custodial deaths.

This year alone has seen a spate of such deaths, with nine Aboriginal people having died in the custody of either police or corrections.

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