Ex-ICAC boss forcefully urged NT cops to arrest Rolfe over Walker’s death

The NT’s inaugural corruption commissioner allegedly advocated so forcefully for the arrest of Zachary Rolfe over Kumanjayi Walker’s death, a staff member apologised to a police commander.

The Northern Territory’s first Independent Commissioner Against Corruption Kenneth Fleming KC. Picture: Keri Megelus

The Northern Territory’s inaugural corruption commissioner, Kenneth Fleming, allegedly advocated so forcefully for the arrest of Zachary Rolfe over Kumanjayi Walker’s death that one of Mr Fleming’s staff later phoned the NT Police’s commander of police standards to apologise for his boss’ comments.

Commander Daniel Bacon told an inquiry into the arrest that Fleming was acting like “king of the sandpit” at a briefing he gave to ICAC about the investigation into Walker’s death.

At that briefing, options including a summons for Mr Rolfe were discussed on the afternoon of November 13, 2019. Mr Rolfe was arrested later that day. The Australian has obtained a transcript of Mr Bacon’s evidence to the 2022 inquiry into whether Mr Rolfe’s arrest was proper.

In his evidence, he claims Fleming, who died in April, preferred an arrest over a summons, and told him: “No, you have to arrest, you have to arrest.” Fleming was appointed by then NT police commissioner Jamie Chalker to have “oversight” of the Walker investigation.

NT Police Commander Daniel Bacon.

Mr Rolfe’s arrest, however, came despite Mr Bacon already warning senior police, including two assistant commissioners, that only one of five criteria for his arrest had been met. He put this in an email a few hours before the arrest. He received a reply saying “Noted”.

At 10.24am on the day of Mr Rolfe’s arrest - five hours before the order to arrest was given - Senior Investigating Officer Kirk Pennuto states “arresting is premature”.

The Australian has previously reported that other experienced investigators strongly disagreed that Mr Rolfe had committed an offence, with several heated discussions about justifications for his actions, including that he appeared to have been acting in self-defence, or defence of his Immediate Response Team partner Adam Eberl.

There was deep police infighting over the decision to charge Mr Rolfe with murder, with officers expressing strong objections.

Fleming was a king’s counsel and a barrister with 42 years’ experience when he began work in the newly created role of NT corruption commissioner in November 2018. Mr Bacon’s evidence is likely to raise questions about whether Fleming’s view may have influenced police.

The transcript of Mr Bacon’s evidence to the inquiry – marked confidential – shows that he told the inquiry Fleming’s view was “well known” by other senior police including acting commissioner Nick Anticich, acting deputy commissioner Martin Dole and assistant commissioner Michael White.

Mr Bacon said his concerns were also known to senior police. However, he told the inquiry the decision had been made. “They were already going to arrest anyway,” he said in his evidence.

Mr Bacon told the inquiry he was not offended by Fleming’s remarks. He said one of Fleming’s staff, Matt Grant, phoned later to apologise for the way Fleming had spoken at the briefing.

“He apologised to me, you know, that afternoon, so it wasn’t just my perception,” Mr Bacon said. “It was just the way he – I don’t think he was rude, but it was … ‘No, this is what we should do. This is how we should do it’, and all that sort of stuff.

“And I said, ‘well, you know, there’s a process at play and … there’s more than one way to skin a cat’. We don’t have to um, you know, arrest, or we don’t have to go down a certain pathway.”

Zachary Rolfe was found not guilty of all charges in relation to Kumanjayi Walker’s death. Picture: Ryan Osland

Mr Bacon told the inquiry the ICAC was so new at the time he believed it did not know its own role.

“This is this whole thing about people trying to find their position … (Fleming) gave the appearance that ‘I’m the new king of the sandpit, and you will do what I say’,” Mr Bacon told the inquiry.

Incumbent NT ICAC Commissioner Michael Riches referred The Australian to ICAC’s independent inspector, Bruce McClintock SC, who appeared unaware of Mr Bacon’s 2022 evidence and said “these issues have not been the subject of any complaint to me”.

Mr McClintock did intervene after Fleming addressed a Black Lives Matter rally while involved in the Walker investigation.

Mr McClintock told The Australian by email on Sunday: “My only official action in relation to the Yuendemu incident was to deal with several complaints which the ICAC itself referred to me in 2019.

“The core complaint was that certain remarks Mr Fleming had made at a rally showed bias in relation to the incident. I required Mr Fleming to disqualify himself from any involvement in any ICAC investigation concerning the shooting at Yuendumu.”

The inquest into Walker’s death is scheduled to resume on Monday, when coroner Elisabeth Armitage is expected to continue to examine Mr Rolfe’s claims of racism in NT Police. He was found not guilty of all charges in relation to Walker’s death.