A Northern Territory police officer will likely know within two weeks whether he will be forced to answer a coroner’s questions about the night he fatally shot an Aboriginal teenager.
Constable Zachary Rolfe shot 19-year-old Kumanjayi Walker three times during a failed backcountry arrest in Yuendumu, northwest of Alice Springs, on November 9, 2019.
An inquest into the death of the Warlpiri man has been halted amid a Supreme Court legal ruling on whether the 31-year-old has the legal right to refuse to give evidence to the coroner and the ability of the court to compel him to do so.
Coroner Elisabeth Armitage previously determined that witnesses cannot refuse to answer questions on the basis of sentencing privilege, which Constable Rolfe did when appearing at the inquest last week.
She said the penalty privilege has been extinguished by section 38 of the NT Coroner’s Act, which allows the coroner to compel a witness to give evidence that may incriminate him and provide a certificate of immunity against prosecution after doing so.
Constable Rolfe’s legal team says the certificate will not protect him from internal police disciplinary proceedings that may arise from his testimony and that section 38 does not abolish the privilege of sanction and that he remains at the available to their client as a common law right.
The North Australian Aboriginal Justice Agency weighed in on the case, arguing that sentencing privilege is not available to investigate witnesses for a number of reasons, including Australia’s obligations to the law international law regarding deaths in custody.
Northern Territories Attorney General Chansey Paech also intervened, alongside the Northern Territories Police, with both sides backing Judge Armitage’s decision.
Ian Freckelton KC, who represents the police, said Section 38 gives witnesses broad protection so coroners can gather incriminating evidence.
He said allowing witnesses to claim sanctioning privilege for fear of being disciplined if they answered questions would undermine coroner’s inquests and the intent of the legislation.
“This is a significant attack on people’s civil liberties, but it is intended to achieve a socially desirable objective, namely that coroners can gather in their investigation as an inquisitorial tribunal, as much information relevant as possible in order to achieve their goals,” he said on Thursday.
Constable Rolfe was found not guilty in March of the murder of Mr Walker. The Aboriginal man’s grieving community was outraged by the verdict and said they hoped the inquest would do justice.
He was temporarily barred from further evidence last week during the inquest until the Supreme Court’s decision is handed down.
If Judge Judith Kelly finds Judge Armitage’s ruling correct, the coroner may compel him to answer uncomfortable questions about the racist text messages the inquest heard he sent.
Constable Rolfe is also likely to be questioned about the night he killed Mr Walker and his alleged misuse of police body-worn cameras, excessive use of force and demand for NT Police recruitment falsified.
In total, there are 14 categories of evidence that Constable Rolfe could be compelled to answer questions about, including nine incidents related to investigations into his use of force at work.
Judge Kelly reserved her decision and said she would strive to issue a judgment within two weeks, noting the urgency of the case.
Mr Walker’s investigation is expected to resume on Friday for a week of evidence before halting until the end of February.
