Cop Zachary Rolfe’s appeal on testifying delays Kumanjayi Walker inquest

The NT police officer who fatally shot Indigenous teen Kumanjayi Walker at Yuendumu is fighting to avoid testifying when the inquest resumes later this month.

Zachary Rolfe. Picture: Glenn Campbell

The coronial inquest into Kumanjayi Walker’s death will hear evidence as late as August as the Northern Territory police officer who fatally shot the Indigenous teen at Yuendumu fights to avoid testifying when proceedings resume later this month.

Constable Zachary Rolfe’s appeal against a Supreme Court ruling compelling him to answer questions even if his evidence exposes him to internal disciplinary ­action will be heard in April ­before Chief Justice Michael Grant and judges Peter Barr and Sonia Brownhill.

Coroner Elisabeth Armitage extended the inquest to include two more sitting weeks from July 31 to hear from the final witnesses and August 21 for a week of oral submissions. The inquest, which has already run for three months, will also sit for what was expected to be the final two weeks of evidence from February 27. Instead of concluding on March 10 for the coroner to consider her findings, the inquest will adjourn instead.

A Justice Department spokeswoman said the inquest would resume on July 31 to hear the balance of the evidence, including that of Constable Rolfe and Sergeant Lee Bauwens, who are among about 18 witnesses still expected to be called.

“The extension was necessary to allow Constable Rolfe’s appeal to the Court of Appeal of the Northern Territory to run its course,” the spokeswoman said. “Constable Rolfe and Sergeant Bau­wens will not be called until the sittings commencing July 31 to allow sufficient time for the Court of Appeal to determine Constable Rolfe’s appeal in relation to the issue of penalty privilege.”

When Constable Rolfe was summoned to give evidence in November, he refused to answer questions – by claiming “the penalty provision” – in relation to 14 categories of evidence to which he said his testimony could result in disciplinary action.

Ms Armitage ruled in November, after legal argument, that Constable Rolfe and Sergeant Bauwens were compelled to answer questions at the inquest.

Constable Rolfe and Sergeant Bauwens appealed the coroner’s decision and a two-day Supreme Court hearing, before judge ­Judith Kelly, was held in late ­November.

Constable Rolfe’s lawyers had argued that even if granted an immunity certificate stating that his answers could not be used against him, their client should not be compelled to answer questions that could incriminate him and expose him to further internal disciplinary proceedings.

The two police officers argued that claiming “penalty privilege” was a “common law right” and police officers could be forced to answer questions that could lead to disciplinary action at work.

In December, Justice Kelly upheld the coroner’s original decision. She said the plaintiffs’ arguments were “untenable” and that penalty privilege was not available in a coronial inquest.

Justice Kelly also ruled that it would be an “absurd result” if Constable Rolfe was able to avoid scrutiny at the inquest by claiming a “penalty privilege” against self-incrimination.

On January 5, Constable Rolfe lodged a Notice to Appeal Justice Kelly’s ruling that he could be compelled to answer questions when he returned to the stand.

The NT police and the ­Attorney-General have previously submitted that the plaintiffs argument, if successful, would have “dire consequences” for the conduct of inquests and make it “more difficult for the coroner to ascertain the truth and so derailing the purpose of coronial proceedings”.

NT police and the Attorney-General, Chansey Paech, will argue to the NT Court of Appeal that the ruling compelling Constable Rolfe to answer questions should be upheld.

If his appeal fails, he could seek special leave for a further appeal to the High Court of Australia.