The battle to limit the questions Constable Zachary Rolfe and other police officers can be asked at the coronial inquest into the death of Kumanjayi Walker has been heard in the Northern Territory Supreme Court.
- Lawyers for Constable Rolfe and Sergeant Lee Bauwens argue the pair have the “right” not to answer questions
- Constable Rolfe claims “criminal privilege” over 14 subjects
- Supreme Court Justice Judith Kelly will deliver her decision within two weeks
WARNING: Aboriginal and Torres Strait Islander readers are advised that this article contains an image of a person who has died, used with the permission of their family.
Over two days, lawyers for Constable Rolfe joined those for Sergeant Lee Bauwens in a complicated legal review of a decision handed down by NT Coroner Elisabeth Armitage earlier this month.
The officers argued that they should not be forced to answer questions that could lead to police disciplinary action.
Judge Armitage is currently leading a months-long inquest into the shooting of 19-year-old Kumanjayi Walker, who died in 2019 after he was shot by Constable Rolfe during an attempted arrest in Yuendumu.
Constable Rolfe was found not guilty of any criminal charges in connection with the death earlier this year and was briefly called to give evidence to the inquest last week.
After less than an hour in the witness boxhe claimed a “criminal privilege” and refused to answer further questions that might have exposed him to a penalty.
His objection covered questions on 14 subjects, including text messages, his application to the NT Police Force, incidents of use of force and the events of the day Kumanjayi Walker died.
Judge Armitage previously ruled in relation to another police officer, Sergeant Paul Kirkby, that she could give him a certificate protecting him from self-incrimination as a result of anything he said in the witness box.
Lawyers for both Constable Rolfe and Sergeant Bauwens told the court that a certificate would not protect the officers from internal disciplinary action, arguing that the relevant section of the Coroner’s Act was ambiguous when it came to the claim of penal privilege.
“It is an aspect of the operation of judicial officers who administer oaths and sit as tribunals that these privileges will be respected. We say that it is an ordinary right, although it is not a substantive right that operates outside of it context,” said Ben Doyle KC, for Constable Rolfe.
Both Police officer Rolfe and Sergeant Bauwens has, the coroner has heard, been involved in a number of text exchanges downloaded from Constable Rolfe’s phone, who used racist language.
They have asked Judge Judith Kelly to declare that “a coroner has no power … to compel a person to answer a question, regardless of a claim of ordinary criminal privilege”.
The Solicitor General, the police, NAAJA and Mr Walker’s family are arguing against
Lawyers for the Northern Territory Police, the NT Attorney-General, the North Australian Aboriginal Justice Agency and family members of Mr Walker made separate arguments to the judge, eventually urging her to make an order that would essentially compel Constable Rolfe and Sgt Bauwens to answer questions.
“It is extremely important to litigation in the area that … penal privilege is considered to have a comparable status to the privilege against self-incrimination, with the result that the coroner may direct a person … to answer questions where appropriate in the interest of justice,” said Ian Freckleton AO KC, for the NT Police Force.
“There is a high public purpose in enabling and ensuring that coronial proceedings fulfill their objective of finding facts and enabling recommendations and comments in the interests of public safety and the administration of justice.”
Dr. Freckleton told the court that the evidence available to witnesses in an inquest gave them “very broad protection” to enable coroners to hear all relevant evidence.
“For the truth to be arrived at by a coroner, they need to be able to receive as much evidence as possible from doctors, from detectives, from paramedics and, where relevant, from police officers,” said Dr. Freckleton.
Judge Judith Kelly is expected to deliver her verdict within two weeks.
The inquest will resume questioning witnesses tomorrow before the current block of meetings ends in early December.
It is scheduled for further hearings in February 2023, when Constable Rolfe is expected to return to give evidence.