A police shooting: The fatal three seconds and the tragic aftermath

Kumanjayi Walker’s cards were marked in advance. Firstly by an environment forged by more than 230 years of neglect towards Indigenous communities and secondly by conditions that led him to be born with what some who knew him suspected to be Foetal Alcohol Spectrum Disorder.

Kumanjayi Walker was 19 when he was shot dead in the remote community of Yuendumu in 2019.

Both parents would die from substance abuse conditions, his mother soon after his birth and his father in a Darwin prison.

Zach Rolfe’s cards were also marked, giving him opportunities Walker could never imagine – one of three sons born into a stable Canberra family committed to community service.

His parents, Debbie and Richard Rolfe, were awarded Orders of Australia for philanthropic work and are respected figures in the ACT. When Rolfe was presented with a national bravery medal for saving two tourists from a flooded Northern Territory river, the Canberra Times headlined the story: “Zach Rolfe, son of Richard and Debbie, receives highest bravery award.”

That was April 2019. Seven months later he was charged with murdering Kumanjayi Walker.

How these two men from different worlds would meet in a fatal confrontation in Yuendumu, about 300 kilometres from Alice Springs, has been the subject of a Supreme Court trial and national outrage. It has also raised serious questions about the justice system in Australia.

To some, Rolfe’s murder acquittal shows the system is biased against Indigenous people, and to others it shows the policeman was charged not on the evidence but through expediency.

So is he a wolf in sheep’s clothing or a sacrificial lamb?

As a kid, Kumanjayi Walker moved around the Northern Territory, eventually arriving in Yuendumu, where his adopted mother and girlfriend lived. Aged 19, he had a 13-page police record, including attacks on police and crimes of violence against Indigenous victims.

His background and mental condition led him to act with little understanding of the consequences. Serving a sentence in a drug and alcohol detention centre, he cut off his ankle bracelet and escaped to Yuendumu. This could only end with his arrest and return to custody.

Former Canberra Grammar student Rolfe spent five years in the army, including a tour of duty in Afghanistan, before in 2016 joining the NT police. His military and police training centred on remaining calm and assessing options, while Walker had to fend for himself.

Zachary Rolfe with then governor-general Peter Cosgrove in early 2019, after the officer’s 2016 river rescue.

A week after arriving at Alice Springs, the new probationary constable rescued two tourists swept away in the flooded Hugh River. After first saving one found near the bridge, Rolfe - wearing only pink underpants - floated and swam more than six kilometres before reaching the second, who was clinging to a tree with a broken hand. When she told him she couldn’t swim, he put her on his back to reach safety.

At this point Rolfe was the NT police’s golden child – an interstater who moved to the outback to do good. He volunteered for the Immediate Response Team (IRT), a group deployed to dangerous scenes. It was an added responsibility to his role as a general duties officer. At induction, he hit every target in firearms training and was soon considered a key member of the IRT.

On November 6, 2019, Yuendumu police tried to arrest Walker. When they approached, Walker charged with an axe, and they stepped aside to let him run past. Their response was appropriate, as their training stresses keeping distance from an offender with a sharp weapon.

In Victoria, police recruits are given a training drill. An instructor armed with a red pen plays an offender while the recruit, wearing a white T-shirt, has to take defensive action. At the end of the exercise the T-shirt is always slashed with red marks, showing that someone with a knife coming forward moves faster than a police officer moving backwards. The safe distance is usually considered at least seven metres.

Well-intentioned critics question why police are trained to use guns if the offender is “only” armed with a knife. Australian Institute of Criminology figures show of the 278 homicides in Australia in 2019-20, 104 were from stab wounds and 35 from gunshots.

Because of Walker’s threatening response, local police called for the Alice Springs IRT to make the arrest. This was when Rolfe became involved. Requests to use local police as backup were refused. A message was sent through the community to ask Walker to surrender at the police station.

He told an elder he would surrender but not until after the funeral of a community member on Saturday, November 9. This message was apparently not passed to police.

Despite concerns, the arrest occurred on November 9, straight after the funeral. Some police recommended it should be set for the following morning. As a constable, it was not Rolfe’s call.

The atmosphere was so tense the government medical team left Yuendumu that morning because of “safety concerns due to community unrest”. Evidence was given at Rolfe’s trial that if the medics had been there, it is probable Walker would have survived.

Rolfe’s bodycam showed a composed police officer approaching the suspect, who denied he was Walker. He was placed against a wall where his face was checked against a phone photo.

Once identity was confirmed, he was told to put his hands behind his back. If there is any criticism of Rolfe at this stage, it is not that he is too aggressive but not aggressive enough.

His deliberately relaxed approach allowed Walker to put his hand in his right pocket to grab a pair of medical scissors and stab Rolfe in the shoulder. With no distance between them, Rolfe stepped back and fired one shot, hitting Walker, who continued to struggle with a second officer on the ground.

Rolfe fired two more shots. The officers forced the weapon from the wounded man and attempted first aid. They took him to the police station, a short distance away. In the back of the police vehicle Walker asked for help and Rolfe assured him: “I’ve got you brother.”

At the station, ill-equipped police attempted to save Walker’s life. He died an hour after he was shot.

Family members maintain they should have been taken inside the police station to comfort the dying man but Walker’s uncle Derek Williams would later tell the Supreme Court: “People was yelling and screaming and wanted to throw rocks at the station, and yeah, I just calmed everybody down.”

A Melbourne protest over the death of Kumanjayi Walker on November 13, 2019 - the same day Constable Zach Rolfe was charged with murder.Credit: David Crosling

Walker’s death occurred the year before the murder of George Floyd in Minneapolis, which created the worldwide Black Lives Matter protests. Walker’s death sparked similar outrage around Australia, with mass rallies and calls for justice.

Meanwhile in Yuendumu, investigators were viewing police bodycam footage and interviewing witnesses. But what they lacked were civilian eyewitnesses. There was no one to dispute Rolfe’s version of events. It all came down to Rolfe’s bodycam – a blurry record of the three seconds from the first shot to the third.

Detectives’ preliminary findings were that “the use of fatal force is justified”. They added that there were “no reasonable grounds for arrest” of Rolfe. Those investigators were replaced within 36 hours.

The Northern Territory’s Chief Minister, Michael Gunner.Credit: Alex Ellinghausen

It was, of course, an internal inquiry that would have done nothing to placate the community until those conclusions could be independently tested at a public hearing.

Three days after the shooting and one day before Rolfe was charged, Northern Territory Chief Minister Michael Gunner and NT Police Commissioner Jamie Chalker flew to Yuendumu on a private plane. Gunner told the community “consequences will flow”.

Even though the use of fatal force was initially judged as justified, and the investigation was incomplete, and Rolfe was not an escape risk, he was charged with murder four days after the shooting.

Was he charged on the evidence or to satisfy community demand and stop possible riots?

It is unclear who made the decision but, under the doctrine of the Office of Constable, the arresting officer must reasonably believe the suspect committed the offence. The initial investigators did not reach that threshold. One of the fresh team wrote there was a “direction” to charge Rolfe with murder.

The Director of Public Prosecutions was approached for advice and for reasons yet to be explained did not provide a written opinion. Though homicide detectives are trained to be prodigious note-takers, the assistant commissioner in charge of the Rolfe investigation took no notes relating to crucial meetings that lead to the decision to arrest.

Constable Zachary Rolfe (centre) leaving court on the first day of his trial for the murder of 19-year-old Kumanjayi Walker. Credit: Zach Hope

The usual standard for launching a prosecution is that it is more likely than not to be successful. Some argue that in controversial cases even a weak prosecution allows the facts to be aired in court to show transparency.

But this case could have been heard in the Coroner’s Court with broader rules of evidence than in the Supreme Court. An inquest is the search for the truth. A criminal prosecution does not examine what happened but what is provable. The Age approached six experienced former homicide investigators and each said they would have prepared the case for inquest.

So why charge Rolfe after an investigation that took little more than a long weekend? He wanted to return to Canberra, and senior police feared it would be difficult to arrest him outside the Territory. In reality, they panicked.

Rolfe’s trial took five weeks and the prosecution called 40 witnesses, including experts, to provide opinions. When Rolfe was charged, it was based on the bodycam record of the vital three seconds. The reconstructions, forensic testimony and scientific conclusions came later.

Despite public outrage, the racial overtones and the detailed Brief of Evidence, at law this was a simple case. Did Rolfe reasonably fear for his life and the life of his colleague? If the answer was yes, then he was not guilty. If not, he was guilty of homicide.

The Crown case was that Rolfe’s first shot was justified but the next two - 2.6 seconds later and then 0.5 seconds after that - were not. It was that he formed murderous intent or showed reckless indifference in those seconds while Walker, still armed, wrestled on the ground with a second officer.

It was an argument rejected unanimously by the jury.

On March 11, Rolfe was acquitted of murder and the lesser charges of manslaughter and engaging in a violent act causing death. Yet he remains on forced leave, facing 11 internal disciplinary charges, with more to follow.

It has now emerged that after he was charged, police launched an internal investigation into Rolfe, checking his notes, emails, texts and bodycam records. They checked around 3000 interactions and honed in on four: Three arrests and a text to a mate.

After the trial it was revealed Rolfe was subject to scathing criticism in another case. In May 2019, Judge Greg Borchers pointedly rejected Rolfe’s evidence, acquitting a man charged with hindering and assaulting the constable. “I find that Constable Rolfe lacks credibility,” the judge found.

He stated the injuries sustained by the accused were likely due to Rolfe’s excessive force.

Rolfe’s actions were cleared by a routine internal review. A month after his murder arrest the file was sent for an opinion on whether he should be charged with perjury. That option was rejected due to lack of evidence.

The prosecution tried to introduce these examples as tendency evidence to show Rolfe was unnecessarily violent, a tactic that failed as the trial was legally obliged to concentrate on the actions of Walker and Rolfe that culminated in the shooting. Justice John Burns suggested the prosecution had “cherry picked” through Rolfe’s career to support its case. The tendency evidence was rejected as inadmissible.

Burns told the jury: “You cannot reason that the accused is a person of bad character or is a bad police officer and accordingly is likely to have committed the offences with which he was charged. Everyone, whether police officer or not, is entitled to defend themselves or to defend others who are under attack - indeed, a police officer has a duty to defend others who are under attack.”

If Rolfe was considered a loose cannon, why was he appointed to the IRT? Why, until the shooting, was his conduct record spotless? Why, if he used unnecessary force in previous arrests, was he not prosecuted at the time? Why were those examples only resurrected after he was charged with murder?

Why was a draft coroner’s briefing paper written by a superintendent, which disputed conclusions by prosecution expert witnesses, buried, and his investigation shut down by one of the officers who authorised Rolfe’s arrest?

Was Gunner briefed by Chalker on the private plane to Yuendumu that Rolfe was about to be charged before the Chief Minister promised that “consequences will flow”?

The roles of Chalker, Gunner, then DPP Jack Karczewski, QC, and several senior police in a case where there are no winners will be examined later this year at a Coronial inquest.

The decision to prosecute, rather than to reserve the decision until after an inquest, was a disservice to all Northern Territory remote communities, as it delayed the examination of the fundamental issues of police training, cultural sensitivities, the safest way to police in similar circumstances and whether the attempt to arrest Walker on the day of the funeral was premature.

If new evidence was uncovered against Rolfe by the Coroner, the case against him would have been stronger. But under the rules of double jeopardy, he cannot be tried again.

Kumanjayi Walker was the victim of a thousand injustices and more than 200 years of cultural oppression. Zach Rolfe had to deal with the consequences in a little over three seconds.

We loaded the gun. He just pulled the trigger.

John Silvester is the co-author of The Silent War: Behind the shootings that shocked Australia and writer and narrator of the award-winning ABC documentary Trigger Point, on police shootings.