A Northern Territory Supreme Court judge has struck down an 11th hour attempt by the prosecution to delay the murder trial of NT police officer Zachary Rolfe.
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However, the prosecution has indicated it will apply for the stay to be granted by the High Court, throwing the future of the highly-anticipated trial into doubt.
Mr Rolfe, 30, is charged over the fatal shooting of 19-year-old man Kumanjayi Walker in the central Australian remote community of Yuendumu in November 2019.
He has pleaded not guilty to murder, as well as two alternative charges of manslaughter and reckless conduct causing death.
His three-week murder trial is set to begin in Darwin on Monday after multiple delays due to COVID-19.
Crown prosecutor Philip Strickland SC applied in the Darwin Supreme Court on Thursday for the trial to be stayed because of an application being made to the High Court. The prosecution is seeking leave to appeal a decision handed down last week regarding Mr Rolfe's potential defences in the trial.
The full court of the Northern Territory Supreme Court handed down a decision on August 13, ruling Mr Rolfe's lawyers will be allowed to argue three separate defences at his trial, including that he was acting in "good faith" in his role as a police officer, at the time of the shooting.
The prosecution has applied to appeal that ruling to the High Court, and requested the murder trial not proceed until the process is finalised.
Mr Strickland argued a jury could acquit Rolfe on the basis of that defence and that they would be unable to appeal the decision at that point.
"We say an acquittal resulting from the full court's ruling would render the Crown's right to appeal that ruling futile," he said.
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Presiding Justice Dean Mildren denied the prosecution's request, ruling that the trial had already started and that it would result in an unreasonable delay.
"It may be that the High Court would be able to hear the matter as early as September, it also may not. It's quite impossible for me to know this," he said.
"We are not likely to find a [new] trial date for this year. Next year ... not before April or May.
"Any delay in the trial process causes harm to the accused."
Justice Mildren also said he believed it was unlikely that the High Court would take on the case.
However, speaking outside court, Mr Strickland said he intended to take his application to the High Court anyway, hoping it would order the trial be stayed.
"The stay was refused and we will probably, definitely, file a stay application with the High Court to see if that refusal is overturned," he said.
Justice Mildren indicated in court he would allow the start date of the trial to be pushed back to Tuesday to allow for this to happen.
