In the days following the fatal police shooting in 2019 of Indigenous man Kumanjayi Walker, Northern Territory Chief Minister Michael Gunner flew to the remote town of Yuendumu, intent on placating angry members of the Aboriginal community. Referring to the coronial investigation, he declared “Consequences will flow as a result”.
This was news to me and many others I suspect, for I did not realise that Gunner could assume the role of coroner. Nor were we aware he had apparently completed an exhaustive and complex investigation in a matter of days.
It would also have been a surprise to Constable Zachary Rolfe, who had shot Walker three times after the violent and troubled young man stabbed him with a pair of scissors. Mind you, not half the surprise of learning the next day he would be charged with the murder of Walker.
A question for you, Chief Minister: how is that prediction of yours looking, particularly in light of Rolfe’s acquittal on all charges last week? Gunner still refuses to acknowledge his remarks were inflammatory and prejudicial. “There has been (a) deliberate and irresponsible misinterpretation of my words from that day,” he said this week. “Words have been deliberately taken out of context despite constant clarification.” In other words, the real victim of this travesty of justice is Gunner, not Rolfe.
Gunner’s comments infuriated NT Police Association president Paul McCue, who accused him of pre-empting the coroner’s findings and implying wrongdoing by police. Gunner refused to withdraw his remarks, saying later that month that when the Association had a chance to reflect, “they will see they have overreacted.”
There has never been a single criminal conviction for an Aboriginal death in custody in #Australia. Not one.
— Sophie McNeill (@Sophiemcneill) March 11, 2022
My thoughts today are with the loved ones of Kumanjayi Walker and all the Yuendumu community https://t.co/OiNOMsYrLc
Gunner is but one of many officials in this affair who regarded with disdain Rolfe’s right to be treated fairly, whether it be in the criminal, coronial or administrative processes. Take Ken Fleming QC for example. “One of the most important messages today is ‘Black Lives Matter’,” the then NT Independent Commissioner Against Corruption told a protest rally in Alice Springs the week after the shooting. “Anybody who says contrary to that is guilty of corrupt behaviour.”
Days later, having announced he would no longer be involved in the investigation of Walker’s death, Fleming tried to rationalise his actions. “My intention when participating in the community meetings in Central Australia was to explain our ability to independently look into these matters,” he said. Well he certainly made that clear. Small wonder the agency’s new commissioner, Michael Riches, announced last month he had “great concern” about the public’s “lost trust and confidence” in ICAC.
If you happened to catch Philip Strickland SC’s comments outside court following Rolfe’s acquittal, you could be forgiven for thinking the Crown prosecutor was an advocate for Walker’s family. “The shooting at Yuendumu raised issues, not all of which could be explored at this trial,” he said.
“We anticipate that those issues and the evidence that could not be examined in this trial will be very carefully scrutinised at the inquest. And it is our view that the family of Kumanjayi Walker and the Warlpiri community and indeed the Australian people deserve no less than that full scrutiny.”
Memo to Mr Crown: a coronial inquest is not a fallback for a failed prosecution. Neither is it for you to publicly allude to evidence that was not put to the jury. As for what the Australian people deserve that must include a police force and public prosecution service that is apolitical, impartial and objective.
A suggestion for the NT Office of the Director of Public Prosecutions: you might want to read and perhaps even follow your own prosecution guidelines, particularly that excerpt which mandates cases be initiated or continued only when there is a “reasonable prospect of conviction”. Also: “A decision whether or not to proceed must not be influenced by any possible media or community reaction to the decision.” Why then did your office give this case the go-ahead, let alone proceed to trial, when even a bush lawyer could tell you it would never get up?
This week NT Police Commissioner Jamie Chalker denied accusations that the police probe was compromised by political interference, saying they were “factually incorrect” and that the investigation into Walker’s death was “normal”.
Let’s see how that sits with the investigation’s team diarised observations in the lead-up to Rolfe’s arrest as high-ranking police administrators bypassed investigators and sought an opinion from DPP only two days after the shooting. Detective Sergeant Kieran Wells noted it was “extremely concerning that crucial elements of an extremely serious criminal/coronial investigation were being hastened for no discerning justifiable reason.”
Senior officers directed Detective Sergeant Isobel Cummins to compile a brief for DPP by 1pm on November 13 – just four days after Walker’s death. She wrote she was “not comfortable with arrest and rushed process without full assessment of evidence and ability to investigate objectively.” Wells again upon being informed of Rolfe’s arrest: “Investigators on scene do not agree with course of action, both arrest element and charge.” But according to the Commissioner, this was a “normal” investigation. Really?
As for what has been written about this trial, it was The Washington Post which, albeit inadvertently, identified the skewed and partisan analysis that many commentators have utilised.
“No police officer ever has been convicted of murdering an Indigenous person in Australia,” wrote correspondent Michael E. Miller. “Some legal experts and activists saw Rolfe’s prosecution as a test for whether the justice system was willing to take seriously Indigenous deaths in custody.”
Our hearts go out to all Warlpiri people and community, and most importantly to the family and friends of Kumanjayi Walker, following the news of the Zachary Rolfe verdict. We stand with you, and with justice for First Nations people. 💛 https://t.co/4QffMDMSII
— Amnesty International Australia 🕯 (@amnestyOz) March 11, 2022
This is both a flawed and disconcerting conflation, and one that is anathema to the right of the accused to have a fair trial. Justice is not served by delivering guilty verdicts according to a quota. It was an individual in the dock, not the institution of policing. Evidently the jury, to its credit, was not distracted by extraneous considerations.
This week Riches announced his office was considering whether to conduct an inquiry into Rolfe’s arrest. “While I appreciate the public interest in the matter, I will not be rushed to decide whether or not I will investigate,” he added. Unlike the NT Police executive, one could say.
The last word should be left to Rolfe’s lead counsel, David Edwardson QC, who forcefully maintained throughout the trial his client was wrongly charged. Speaking outside court following the acquittal, he had a message not just for the police administration, but also for the highest level of government in the Territory. And his choice of words was no coincidence.
“Consequences,” he said, “will flow”.
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