Zachary Rolfe murder trial: Ex-cop initiated police liability protection

The legal clause that could excuse police constable Zachary Rolfe from liability for shooting dead Aboriginal teenager Kumanjayi Walker was first proposed by another policeman.

Former NT attorney-general and policeman John Elferink.

The legal clause that could excuse police constable Zachary Rolfe from liability for shooting dead Aboriginal teenager Kumanjayi Walker was first proposed by another policeman from Central Australia who had faced a man armed with a knife.

John Elferink, now a lawyer in South Australia but before that attorney-general in the Northern Territory, worked earlier in his career as a police officer based in Alice Springs.

As a serving officer, Mr Elferink was on three occasions forced to draw a gun to protect himself against an armed assailant. Two of those incidents involved non-Indigenous people brandishing firearms, and the third was an ­Aboriginal man with a knife.

On that occasion, Mr Elferink and his partner interrupted the man, seemingly trying to stab a woman. “He turns, sees me, holds the knife in front of him and starts walking towards me,” he said.

“I didn’t know at this point whether he was trying to give me the knife or whether he was trying to stab me.”

Mr Elferink’s partner struck the man’s arm with a baton, and the incident was resolved without further injury, but Mr Elferink still wonders what would have happened if he had fired his gun. “Would I have been charged? Possibly,” he said.

“These are the sorts of things that police officers have to deal with on a regular basis.”

When he entered parliament first as a member of the Country Liberal opposition, he proposed a bill to lower the evidentiary standard required for police officers to show they were trying to do the right thing.

“A court might say that a police officer was negligent but was probably acting in good faith, so he would have that defence,” Mr Elferink said. His plan covered only civil liability.

The Labor government of the day adopted the proposal and ­extended it to cover criminal lia­bility as well, enthusiastically supported by the Police Association and the police commissioner.

In his second reading speech, police minister Paul Henderson, who would go on to become the chief minister, said the government “does believe that police ­exercise delegated powers … in often extreme, dangerous and difficult circumstances.”

“A lot of policing is, by its very nature, a judgment call based on the circumstances of the particular case,” he said. “This legislation does further protect police ­officers from potentially vexatious claims and puts officers’ minds at rest that in the event that actions are brought against officers as a result of their actions in the course of their duty, they will be protected.”

The Supreme Court of the NT on Wednesday heard arguments about whether Constable Rolfe should have access to the liability defence, which states that a ­person is “not civilly or criminally liable for an act done … in good faith” under police laws.

Constable Rolfe shot Kumanjayi Walker three times after the latter stabbed him with scissors.

Mr Elferink said he initially thought extending the protection to cover criminal liability was a bridge too far but later decided to endorse the government’s legislation. It was passed with support from both sides of the NT Legislative Assembly.