A Northern Territory police officer can be forced to answer a coroner’s questions about the night he shot an Indigenous man dead.
Constable Zach Rolfe shot 19-year-old Kumanjayi Walker three times during a bungled outback arrest in Yuendumu, northwest of Alice Springs, on November 9, 2019.
An inquest into the Warlpiri man’s death has been repeatedly disrupted by a legal stoush about whether the 31-year-old officer has the legal right to refuse to provide evidence to the coroner and the court’s ability to compel him to do so.
Coroner Elisabeth Armitage previously determined that witnesses cannot decline to answer questions by invoking the penalty privilege, which Const Rolfe did when he appeared at the inquest in November.
She said penalty privilege was extinguished by the NT Coroner’s Act Section 38, which allows the coroner to compel a witness to give evidence that could incriminate them and for the provision of an immunity certificate from prosecution after doing so.
Const Rolfe’s legal team disagreed and took the matter to the Supreme Court for judicial review last month.
It said the certificate would not protect him from internal police disciplinary proceedings potentially stemming from his evidence, and Section 38 does not abolish penalty privilege and it remains available to him as a common law right.
Justice Judith Kelly disagreed and in a judgment released on Thursday she said “penalty privilege is not available in a coronial inquest under the Act”.
She said Const Rolfe’s lawyers’ arguments about why the coroner should be overruled were “untenable” and that to adopt their explanation of the act’s intention “would be an absurd result”.
She agreed with North Australian Aboriginal Justice Agency’s legal team’s submissions that the act did not intend for “penalty privilege” to apply at inquests.
“The mischief which led to the enactment of the 2002 amendment to (Section 38) was a perception by the coroner that the coroner’s ability to get to the truth was being hampered by the fact that witnesses were refusing to answer questions claiming the privilege against self-incrimination,” she said.
“It was intended to make it harder for witnesses to refuse to answer questions (and so easier for the coroner to ascertain the truth) – not to provide witnesses with an extended ability to refuse.”
Justice Kelly said that if her ruling that penalty privilege is not available was wrong then “the coroner was correct to hold that, on the assumption that penalty privilege did apply, it was abrogated by (Section 38) to the extent that the coroner was empowered to require a person to answer”.
The effect of the judgment is that Judge Armitage should now be able to compel Const Rolfe to answer uncomfortable questions about racist text messages that the inquest was told he sent.
He is also likely to be asked about the night he killed Mr Walker and his alleged misuse of police body-worn cameras, excessive use of force and a falsified NT police recruitment application.
All told, there are 14 categories of evidence Const Rolfe could be forced to answer questions about, including nine incidents related to investigations over his use of force on the job.
A jury found him not guilty in March of murdering Mr Walker, causing outrage in the Indigenous man’s grieving community, along with hopes that the inquest would provide answers where the trial had failed.
The inquest continues on February 27 when Const Rolfe is likely to be recalled if he does not appeal Justice Kelly’s ruling.
