Court bars any Zachary Rolfe ‘tendency’ evidence

Prosecutors in the murder trial of NT police constable Zachary Rolfe cannot use so-called ‘tendency’ evidence about his past conduct.

Zachary Rolfe. Picture: Gary Ramage

Prosecutors in the murder trial of Northern Territory police constable Zachary Rolfe cannot use so-called “tendency” evidence about his past conduct.

The decision, handed down by NT Supreme Court judge John Burns on Thursday, likely strengthens Constable Rolfe’s defence by making it harder for the crown to prove he was not acting in good faith while exercising police powers.

The decorated officer is accused of murdering Aboriginal teenager Kumanjayi Walker after the latter stabbed him with scissors during an attempted arrest in the outback community of Yuendumu in 2019.

Rolfe shot Walker three times. The prosecution says only the first shot was justifiable.

The trial was initially scheduled to take place last year but was delayed while the two sides argued about what defences Constable Rolfe could use.

Both agree he could argue he acted in self-defence or acted reasonably in the course of his duties.

Disagreement about a broader good faith immunity defence went all the way to the High Court, which finally ruled it was applicable, subject to certain conditions.

The case is being closely watched by members of the police force, some of whom think Constable Rolfe should not have been charged. It has also caught the attention of activists who see Walker’s death in the light of America’s Black Lives Matter movement.

Justice Burns on Thursday refused an application by defence lawyers to have text messages sent by Constable Rolfe excluded from evidence. They had argued that investigators acquired the texts illegally.

Justice Burns told the court arrangements would be to try to ensure the trial – due to get under way on February 7 – was not disrupted by coronavirus.

Extra jurors might be empanelled in case some caught Covid-19. Doing so was not without risk as enlarging the group could increase the chances of virus transmission.

Justice Burns suggested the courtroom layout could be changed to allow jurors to sit farther apart but it remained unclear whether doing so would be effective. “I think that is something that I will need to at least attempt to get some advice from the chief medical officer (about),” the judge said.

The case returns to court on 31 January.