Zach Rolfe’s last ditch legal bid could frustrate NT inquests, lawyers for NT Police say

The case for Zach Rolfe to be allowed to continue to avoid questions at an inquest into the death of Kumanjayi Walker has been described as ‘bizarre’, ‘irrational’ and ‘absurd’.

The ‘memory house’ in Yuendumu where Kumanjayi Walker was fatally shot by Zach Rolfe during a bungled arrest in 2019. Picture: Jason Walls

Zach Rolfe’s continued refusal to answer questions about the fatal shooting of Kumanjayi Walker could frustrate the viability of all Coronial proceedings in the NT, a court has heard.

Constable Rolfe last week refused to testify at an inquest into the death of the 19-year-old Warlpiri-Luritja man he shot three times in Yuendumu in 2019 on the basis that it would expose him to internal police disciplinary proceedings.

He was acquitted on all charges over the shooting by a Supreme Court jury in March.

Territory Coroner Elisabeth Armitage ruled that Constable Rolfe could be compelled to testify under the protection of an immunity certificate but his legal team asked the Supreme Court to overturn that decision, with hearings proceeding over two days this week.

On Thursday, counsel for NT Police, Ian Freckelton KC, told Justice Judith Kelly the force joined with Attorney-General Chansey Paech in urging the court to uphold Ms Armitage’s ruling.

“The issue being canvassed in these proceedings is extremely important for the viability of Coronial proceedings in the Northern Territory,” he said.

“For the truth to be arrived at by a Coroner, they need to be able to receive as much evidence as possible, from doctors, from correctional officers, from paramedics and relevantly, from police officers.”

Dr Freckelton said the consequences of overturning the Coroner’s ruling that the immunity certificate applied equally to disciplinary proceedings as it does to criminal proceedings “would be quite extraordinary”.

“Whether one uses emotive words such as ‘bizarre’, ‘irrational’ or ‘absurd’ doesn’t matter,” he said.

Members of Kumanjayi Walker’s family have criticised Constable Rolfe’s decision not to answer questions about his death. Picture: Jason Walls

“The outcome would be that a person could be compelled to give evidence although it would incriminate them (in an offence) – albeit that their words could not be used in future against them – but they could not be compelled if their words would be prejudicial for their interests in civil proceedings or disciplinary proceedings.

“Now, the problem there is manifest – in virtually any situation where a person might be in jeopardy of criminal proceedings, if they are employed as correctional officers or paramedics or police, the same conduct would almost inevitably give rise to disciplinary proceedings.

“And so if the plaintiffs are correct, the effect of (the compulsion/immunity provision) would be completely undermined, and by a lateral application of penalty privilege, they would be able to decline to give evidence altogether.

“We say, to use a neutral word, that would be anomalous.”

Dr Freckelton said instead, the provision “should be interpreted in such a way as to enable Coroners to undertake their important investigative duties in an effective way”.

Ian Freckelton KC outside court. Picture: Jason Walls

“The outcome of our submissions therefore, your honour, is to join with the Attorney-General to urge your honour to decline the applications for declarations and to uphold the ruling made by the learned Coroner,” he said.

Barrister for members of Kumanjayi Walker’s family, Andrew Boe, asked Justice Kelly if she would be able to hand down a ruling by the end of the week so that Constable Rolfe could be recalled to testify before the inquest wraps up for the year.

But Justice Kelly said that would not be possible.

“I think what I’ll do is reserve my decision and I will endeavour to have that decision and the written reasons therefore delivered within two weeks,” she said.

“And I do thank all counsel for your invaluable assistance in this matter.”

The inquest continues on Friday for another week before resuming again in April next year.