Sergeant admits ‘I let Zach Rolfe down’, as lawyer flags appeal on Coroner’s inquest ruling

Sergeant Paul Kirkby admitted Constable Zach Rolfe had been ‘shouting’ to ‘drown (him) out’ on body-worn camera footage while he was ‘losing (his) shit’.

Lawyers for an NT Police sergeant who sent “racist” text messages to Zach Rolfe will appeal a decision to compel him to answer questions about them at an inquest into the death of Kumanjayi Walker.

Constable Rolfe was acquitted on all charges in March after fatally shooting the 19-year-old during a botched arrest in Yuendumu in 2019, with his death now the subject of an ongoing Coronial inquiry.

Earlier, the court heard in the months prior to the shooting, then officer in charge of Constable Rolfe’s Immediate Response Team, Sergeant Lee Bauwens, had sent a text message in which he referred to Aboriginal people as “bush c**ns”.

Coroner Elisabether Armitage previously ruled the texts were admissible as “prima facie evidence that Sergeant Bauwens held overtly racist attitudes and that he expressed these views to his subordinates in the IRT”.

On Tuesday, counsel for Sergeant Bauwens and for another sergeant, Paul Kirkby, had unsuccessfully argued their clients could not be compelled to answer certain questions at the inquiry as it could expose them to internal disciplinary proceedings.

Sergeant Kirkby agreed to continue his evidence after Ms Armitage granted him a certificate of immunity, but Sergeant Bauwens’ barrister, John Suttner, flagged that he had received instructions to appeal the Coroner’s ruling to the Supreme Court.

Sergeant Lee Bauwens is yet to appear at the inquest. Picture: Glenn Campbell

In his testimony, Sergeant Kirkby admitted Constable Rolfe had been “shouting” to “drown me out” on body-worn camera footage after it was revealed he had apologised to the more junior officer for “losing my shit”.

Sergeant Kirkby said he had been chasing an Aboriginal man through an Alice Springs town camp when he caught up with him and “we had a shouting match”.

“The language was foul, my language was foul,” he said.

The court heard Sergeant Kirby later texted Constable Rolfe to apologise for “the stress caused by losing my shit the other night”.

Constable Rolfe replied: “Bro there was literally no stress about it, I’m all for that shit, I’ve done the same thing to you more than once before.”

“I’m always ready to make my camera face the other way and be a dramatic c*** for the film, ha ha,” he wrote, to which Sergeant Kirkby responded “And the Oscar goes to ...”.

Counsel assisting the Coroner, Peggy Dwyer, asked Sergeant Kirkby if he was “modelling” for Constable Rolfe that “it was not a big deal for you to lose your shit”.

“What you should have said was ‘No, it actually is a problem if you lose your temper like that and I’m going to do something about it’, isn’t that what leadership was required in those circumstances?” she asked.

Sergeant Kirkby said he had “no doubt” that that was “the right response”.

“Whether that response made me feel better about my response, how I acted, that it was not a big deal,” he said.

“I obviously thought it was a big deal because I texted him to apologise, but I let Constable Rolfe down, I let the police down.”

Sergeant Kirkby also agreed that he should have pulled Constable Rolfe up “on the suggestion that you can misuse body-worn video evidence”.

“In this instance there wasn’t a great deal of leadership going on in this text exchange,” he said.

Sergeant Kirkby said if Constable Rolfe “did do something with his camera where he turned it around”, that concerned him “on reflection”, but agreed that “it’s a bit hard to pull him up when he’s doing it to protect you”.

On Monday, Sergeant Kirkby admitted to “trying to manipulate what is happening by the use or the failure to use body-worn video” by warning other officers that the camera is rolling in case they “start talking inappropriately”.

But he denied having done so to “protect” Constable Rolfe when he was “doing something that would otherwise potentially be inappropriate”.

Constable Rolfe was acquitted on all charges by a Supreme Court jury in March after fatally shooting Mr Walker during a bungled arrest in Yuendumu in November 2019.

During the seventh week of hearings in the long running inquest on Monday, Sergeant Kirkby told counsel assisting the Coroner, Peggy Dwyer, he thought police body cams were “important and worthwhile” and he had never heard of any officer turning them off “deliberately to avoid capturing an incident”.

It came after Dr Dwyer revealed Sergeant Kirkby had texted Constable Rolfe two months before the shooting, saying: “Sorry about the stress caused by losing my shit the other night”.

“Stress you didn’t need, you sorted it well, I’d just had enough,” the text read.

“He was the second person to press my button that night.”

Sergeant Paul Kirkby says he doesn’t know why he texted Zach Rolfe saying ‘And the Oscar goes to …’. Picture: Jason Walls

When asked by Dr Dwyer what he meant by the message, Sergeant Kirkby said “I don’t know”, but that he thought it may have related to an incident in which he chased an Aboriginal man through a trucking yard and tackled him into a shed while his body cam was turned off.

Again Sergeant Kirkby said he did not know why he had not turned the camera on.

Dr Dwyer said Constable Rolfe texted back, saying “Bro there was literally no stress about it”.

“I’m all for that shit, I’ve done the same thing to you more than once before,” he wrote.

“I’m always ready to make my camera face the other way, and be a dramatic c*** for the film, ha ha.”

Sergeant Kirkby responded by texting: “And the Oscar goes to …”

“And Constable Rolfe replies ‘Ha ha’,” Dr Dwyer said.

“You’re laughing, aren’t you, about the way that body-worn video footage can be manipulated by police to present a situation?”

Sergeant Kirkby replied “Yeah, it seems that way”.

But he again denied knowledge of whether Constable Rolfe was suggesting “turning the camera around to face him and to pretend to have some sort of injury”.

Dr Dwyer: “Well what did you take him to mean?”

Sergeant Kirkby: “I don’t know.”

Dr Dwyer: “Well he was talking about acting on the film?”

Sergeant Kirkby: “Mm mm.”

Dr Dwyer: “Pretending that something had happened, correct?”

Sergeant Kirkby: “Yep.”

Dr Dwyer: “To falsify evidence that would be available later on, is that right?”

Sergeant Kirkby: “To act up, like, I don’t know.”

Dr Dwyer asked Sergeant Kirkby if he understood “”that you’re giving evidence, and you’ve made a promise to tell the truth” and he said he did.

“It’s plain as day that Constable Rolfe is suggesting to you that he’s prepared to feign something, to act up, that would give a particular impression on his body-worn video footage, correct?” she asked.

Sergeant Kirkby agreed that “that seems to be what it is” but said he couldn’t remember getting the text “so I don’t know what I was thinking at the time”.

“It must have been obvious to you, in getting the text message, can I suggest to you?” Dr Dwyer asked.

“Something must have been obvious to me,” Sergeant Kirkby replied.

“What do you say to a suggestion that it’s a failure of leadership from you to engage in that sort of text exchange with Constable Rolfe about being prepared to turn his camera to face the other way and act up for the film? Do you accept that?-” Dr Dwyer asked.

“A failure in leadership?” Sergeant Kirkby replied.

“Yes, I’d say that.”

Sergeant Kirkby was due to resume his testimony on Tuesday morning but the court was temporarily adjourned after his lawyer, Stephen Robson SC, argued his evidence could expose him to internal NT Police disciplinary proceedings.

But counsel for the force, Ian Freckelton KC, told the court Sergeant Kirkby had already “received remedial advice” concerning the text messages and that an officer “cannot be proceeded against in two different ways for the same conduct”.

While adjourning the court until 11.30am, Coroner Elisabeth Armitage did not indicate when she would be in a position to rule on the application.