Covid lockdown makes Zachary Rolfe murder trial start a remote possibility

The prosecution of police constable Zachary Rolfe for the alleged murder of Aboriginal teenager Kumanjayi Walker could be delayed until next year or beyond.

Constable Zachary Rolfe leaves Darwin Supreme Court on Wednesday with no fixed date for the start of his trial. Picture: Glenn Campbell

The prosecution of police constable Zachary Rolfe for the alleged murder of Aboriginal teenager Kumanjayi Walker could be delayed until next year or beyond because of the coronavirus crisis in NSW.

The full bench of the Supreme Court of the Northern Territory on Wednesday heard legal arguments about what defences would be available to Constable Rolfe if his case comes to trial.

Constable Rolfe shot Walker three times after the latter stabbed him with scissors during an attempted arrest in the outback community of Yuendumu.

The defence and the prosecution agree that the first shot was justifiable. The murder charge depends on the second and third shots, which were fired at close range 2.6 seconds after the first shot and after Walker had been wrestled to the ground.

Under Territory law, Rolfe could claim he was acting in self-defence or acting reasonably in the course of his duties.

His lawyers say he should be excused from all civil and criminal liability if a jury is persuaded he acted in good faith while exercising powers and functions under police legislation.

The prosecution disagrees, saying Constable Rolfe could not conceivably have been exercising the power of arrest if, by shooting Walker, he was trying to kill or harm him. “If the purpose of an act of shooting someone is to kill that person, that must be a different purpose from the purpose of arresting them,” Philip Strickland SC told the court.

Constable Rolfe’s barrister, David Edwardson QC, ridiculed the notion that a police officer could not be attempting an arrest and acting in self-defence or defence of another at the same time.

He said when his client fired the second and third shots, he believed his partner was at mortal risk of injury by Walker, who was still clutching a pair of scissors.

“(The prosecution say) that somehow takes away the continuation of the power of arrest,” Mr Edwardson. “It simply does not and cannot … withstand any sensible legal analysis.”

Earlier, judge Dean Mildren heard from the parties about when the trial might occur. It had been scheduled to start this week, but Mr Strickland and his colleagues were caught up in Covid-19 travel restrictions, forcing a delay.

Mr Strickland told the court that obliging the crown to brief another barrister would be unfair and the Director of Public Prosecutions had indicated he would refuse to do so.

Acting Director of Public Prosecutions Nicholas Papas QC told The Australian it was regrettable that Covid-19 restrictions had affected the case but declined to comment further.

Speculation has been mounting that the DPP could drop the charges against Constable Rolfe altogether.

The prosecution on Wednesday conceded that the defences available to Constable Rolfe would depend on the full breadth of evidence and could not be decided on agreed facts alone.

The Supreme Court of the NT is expected to deliver its judgment within a fortnight. Justice Mildren will hear from the parties again on Friday about possible dates for a trial.