Officer Zachary Rolfe in bid to not testify on Kumanjayi Walker shooting

The NT police officer who fatally shot Kumanjayi Walker at Yuendumu is appealing a Supreme Court decision compelling him to answer questions at the coronial inquest.

Zachary Rolfe. Picture: (A)manda Parkinson

The Northern Territory police officer who fatally shot Kumanjayi Walker at Yuendumu is appealing against a Supreme Court decision compelling him to answer questions when the Indigenous teenager’s coronial inquest resumes next month.

Supreme Court documents obtained by The Australian show Constable Zachary Rolfe last week lodged a notice to appeal against Justice Judith Kelly’s December ruling that he can be compelled to answer questions when he returns to the stand.

When Constable Rolfe was called 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 internal disciplinary action.

The January 5 notice claims that Justice Kelly “erred in holding that penalty privilege is not available to a witness as a ground for declining to answer a question in an inquest”.

That decision came after Coroner Elisabeth Armitage ruled in November, after legal argument, that Constable Rolfe and another Alice Springs police officer, Sergeant Lee Bauwens, are compelled to answer questions at the inquest.

Constable Rolfe and Sergeant Bauwens appealed against the Coroner’s decision, and a two-day Supreme Court hearing, before Justice Kelly, was held in late November. They argued that claiming “penalty privilege” was a “common law right” and that police officers could not be forced to answer questions that might lead to disciplinary action.

But in December, Justice Kelly 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.

The inquest, being held in Alice Springs before Ms Armitage, has already run for three months and was scheduled to resume on February 27 for two weeks.

Constable Rolfe was expected to return to the stand next month but this fresh appeal – for which a date has not yet been set – creates uncertainty about whether he will be called again or when the inquest will resume.

In appealing against Justice Kelly’s ruling, Constable Rolfe is seeking an order that he cannot be directed or compelled to answer questions to which his answers “would tend to subject or expose the appellant to a penalty”.

During the November Supreme Court hearing, his lawyers had argued that, even if granted a certificate of immunity against self-incrimination, their client should not be compelled to answer questions that could expose him to further disciplinary proceedings.

But the NT Police and the Attorney-General 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”.

Justice Kelly agreed and upheld Ms Armitage’s original decision. She said the plaintiffs’ arguments were “untenable” and that penalty privilege was not available in an inquest.

If Constable Rolfe’s appeal fails, he is expected to face questions about a wide range of issues including use-of-force incidents, drug use, offensive text messages and his deployment to Yuendumu on November 9, 2019, when he shot 19-year-old Walker.

He was one of four officers sent from Alice Springs to arrest Walker on charges including assaulting police with an axe. During the arrest, Constable Rolfe shot Walker three times after the teenager stabbed him with a pair of scissors.

Constable Rolfe was subsequently charged with murder, manslaughter and engaging in a violent act causing death. In March, a Supreme Court jury acquitted him of all three charges.