Zach Rolfe to appeal ruling on Kumanjayi Walker inquest testimony

NT cop Zach Rolfe is set to continue his fight to avoid answering questions about the night he fatally shot an Indigenous teenager in Yuendumu in 2019.

The ‘memory house’ in Yuendumu where Kumanjayi Walker was killed in November 2019. Picture: Jason Walls

NT Police officer Zach Rolfe will appeal a Supreme Court ruling forcing him to testify at an inquest next month about his actions in fatally shooting an Aboriginal teenager in 2019.

Constable Rolfe was acquitted on all charges in March last year after shooting 19-year-old Warlpiri-Luritja man Kumanjayi Walker three times during a botched arrest in Yuendumu.

In December, Justice Judith Kelly dismissed Constable Rolfe’s application to overrule a decision by Coroner Elisabeth Armitage compelling him to testify when the inquest returns to Alice Springs in February.

But documents filed with the Supreme Court and seen by this publication reveal Constable Rolfe’s legal team has now lodged a formal appeal of that ruling.

His lawyers argue Justice Kelly was wrong to conclude Constable Rolfe was unable to invoke a “penalty privilege” exempting him from answering questions that might land him in hot water with his employer.

“The primary judge erred in holding that penalty privilege was not a right of a kind which engaged the principle of legality,” the documents read.

“The primary judge erred in holding that for the purposes of considering whether penalty privilege was available to be claimed, an inquest under the Coroners Act 1993 (NT) was not relevantly a curial proceeding.

Zach Rolfe leaves the Alice Springs Local Court after invoking the ‘penalty privilege’ in November. Picture: Jason Walls

“The primary judge erred in failing to hold that there was no basis in the text or structure of the Coroners Act 1993 (NT) to conclude that the right of a witness to decline to answer a question on the basis that to do so would tend to expose the witness to a penalty was not abrogated by express words or by necessary intendment.”

In her original judgment, Justice Kelly found penalty privilege was never intended to apply to Coronial inquiries at all, but even if it was, Constable Rolfe could still be compelled to testify under an immunity certificate.

She said his lawyers’ contention that witnesses could be compelled to implicate themselves in a crime but not an internal disciplinary proceeding “would be an absurd result”.

“In the case of police officers and other public officials, almost all criminal acts would also have potential disciplinary consequences with the result that the Coroner could almost never require police officers (and others) to answer such questions on the provision of a certificate,” she said.

Constable Rolfe took the stand at the inquest in November but was excused after invoking the privilege to refuse to answer questions about a number of topics, including “racist” text messages found on his mobile phone.

Originally published as Zach Rolfe to appeal ruling on Kumanjayi Walker inquest testimony