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Police Liability For Violent Acts: The Queen v Rolfe

In 2021, NT police officer Zachary Rolfe was charged with the murder of an Indigenous man from Yuendumu community whom he shot dead during an attempted arrest. Rolfe was eventually found not guilty of murder by a jury in March 2022. Prior to the trial, a number of voir dires were conducted and in the course of that process, questions concerning police liability for acts done in the course of their duties were referred to the Full Court of the Supreme Court for determination. The Full Court handed down its decision on those questions on 13 August 2021.

The facts

The accused attended the victim’s house with another police officer to arrest the victim in relation to alleged offences and for breaching the conditions of a suspended sentence.

When Rolfe asked the victim to put his hands behind his back, the victim produced a pair of scissors and stabbed Rolfe in the left shoulder. Rolfe fired a shot at close range at the victim’s back. That shot was not fatal. He then fired two more shots at the victim’s torso, one of which was fatal.

The police arrested the victim and took him back to the police station where he was given first aid, but later died.

Legislation on police liability

The Full Court considered questions concerning two provisions that purport to excuse police from liability for acts done while on duty.

The provisions considered were section 148B of the Police Administration Act 1978 (PAA) and section 208E of the Criminal Code Act 1983.

The court considered whether either or both of these provisions provided Rolfe with a potential defence to the charges he was facing, which included murder, and in the alternative: manslaughter, reckless or negligent conduct causing death, and engaging in a violent act causing death.

Police liability for acts done in good faith in the exercise of a power

Section 148B of the PAA states that a person is not civilly or criminally liable for an act done in good faith in the exercise of a power under the act.

The court was asked to consider whether this provision applied only to acts and omissions done in the police officer’s capacity as a public official under authorising law. The court answered this question in the negative, finding that the provision applied to a person performing a function or exercising a power under the PAA.

The court found that the reference to acts done ‘in the exercise of a power’ in section 148B of the PAA protects officers in relation to acts done in performance of the police functions set out in section 5 of the act.

These are:

  • to uphold the law and maintain social order;
  • to protect life and property;
  • to prevent, detect, investigate and prosecute offences;
  • to manage road safety education and enforcement measures;
  • to manage the provision of services in emergencies.

The court was then required to consider whether it would be open to the jury to find that at the time the accused fired the second and third shot at the victim, he was acting in the exercise of a power.

It found that the provision could be relied on by the accused, who at the time the shots were fired was arguably:

  • carrying out an arrest;
  • preventing the commission of an offence;
  • defending himself and the other officer against the victim.

The court also found that it was a question for the jury as to whether he was in fact performing such a function, which of these functions he was performing and whether he was acting in good faith.

Police liability for reasonable conduct

Section 208E of the Criminal Code Act 1983 states that a person is not criminally responsible for an offence if:

(a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and

(b) the conduct of the person is reasonable in the circumstances for performing that duty.

The court was asked to consider whether this provision was inconsistent with section 148B of the PAA and whether one provision was intended to modify the other.

The court found that the two provisions both offered partial immunity from liability based on different standards and that there was an overlapping area where both provisions applied.

Do these provisions provide a defence to Rolfe?

The court then considered whether the accused had a defence available to him under section 148B of the PAA and/or section 208E of the Criminal Code Act. The court found that both defences were open to the accused as the provisions were intended to be read together and the operation of one did not limit the other.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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