WARNING: This article contains confronting content and an image of an Aboriginal person who has passed.
A judge has lifted all suppression orders relating to the murder trial of a Northern Territory policeman who shot dead a Warlpiri teenager in 2019.
Kumanjayi Walker died in his remote NT community of Yuendumu after being shot three times during the course of an arrest by Constable Zachary Rolfe, who was charged with the 19-year-old's murder just days later.
Following two year of delays, Rolfe was found not guilty of murder and alternative charges last Friday after a marathon five-week court trial.
A coronial inquest has now been scheduled for September this year. Acting Territory Coroner Judge Elisabeth Armitage will preside over the inquest.
On Friday, Justice John Burns, the presiding judge in Rolfe's case, lifted suppression orders on scores of decisions, evidence and legal arguments relating to the trial, including some he conceded could cause "damage" to Constable Rolfe's reputation.
Kumanjayi Walker died after being shot three times in his home by a Northern Territory police officer during an arrest. Source: Supplied
The decision was made after a Supreme court hearing in Darwin a week after the trial ended and Zachary Rolfe was found innocent of murder and two other charges.
The jury did not get to see the text messages which were ruled inadmissible by Justice John Burns.
'Like the Wild West'
In text to an army friend Mr Rolfe wrote: "Alice Springs sucks ha ha. The good thing is it's like the Wild West and f*** all the rules in the job really...but it is a shit hole. Good to start here coz (sic) of the volume of work but will be good to leave."
In a subsequent text message, Rolfe wrote: "We have this small team in Alice, IRT, immediate response team. We're not full time, just get called up from the Gd's (general duties) for high risk jobs, it's a sweet gig, just get to do cowboy stuff with no rules."
The texts would have formed part of the prosecution's case, along with so-called 'tendency evidence'.
This is evidence that is intended to prove that a defendant, in this case, Constable Rolfe, had a 'tendency' to behave in a particular way.
The tendency evidence involved four incidents that happened in Alice Springs between January 2018 and October 2019, which the prosecution alleged showed Zachary Rolfe using excessive force when arresting aboriginal people.
Zachary Rolfe (L) during the arrest of Malcolm Ryder in 2018. Source: Supplied: NT Supreme Court
Rolfe 'deliberately assaulted' Aboriginal man: prosecutor
In todays court hearing, Crown prosecutor Philip Strickland SC cited the case before Judge Greg Brochers involving a man called Malcolm Ryder and Constable Rolfe.
“The finding was that the accused had deliberately assaulted Mr Ryder - and lied to cover it up", Strickland told the court.
"The finding was that the accused lied in his evidence in relation to that matter. So there has been a finding by a court in Darwin on the subject matter of the suppression orders.”
The Crown alleged Mr Rolfe asked a Detective "to scratch his face" to make it look like he had been attacked during the arrest.
Body Worn Video footage of the Ryder arrest was released as suppression orders in the case continued to lift throughout the day.
In its tendency evidence the Crown "alleged that the accused punched Ryder to his head, grabbed his hair and slung his head to the ground".
The Crown alleged Ryder required 13 stitches to a laceration to his left forehead.
The prosecution alleged Rolfe asked a detective to scratch his face to make it look like he had been attacked in the arrest.
The Crown included three other incidents in the tendency evidence – these three incidents were not the subject of any findings.
In the second incident, the crown says in April 2019 Rolfe arrested a 17-year-old indigenous boy after a chase in the dark.
“It's alleged that during the chase, the child stopped running and placed himself on the ground. The Crown alleges that the accused then banged the child's head into a rock several times.”
The child suffered a laceration and required four stitches.
The Crown alleged Mr Rolfe asked a Detective "to scratch his face" to make it look like he had been attacked during the arrest of Mr Ryder in 2018. Source: Supplied: NT Supreme Court
The Crown alleged Rolfe made another false statement to justify his use of force, claiming the youth had cut his head when he dived on the ground to hide from police during the chase.
Another incident was highlighted. It happened in October 2019 in Alice Springs when a man named Albert Bailey and his partner were arguing near the town council chambers.
It alleged Rolfe ran “and pushed Bailey at full speed into the wall of the building without any warning."
“As a result, Bailey fell heavily onto a bench seat striking his head. Bailey suffered a large laceration to his forehead “and required nine stitches.
In his reasons for denying the tendency evidence, Justice Burns said the jury would have to decide on five incidents involving constable Rolfe and this could be confusing and substantially increase the length of the trial.
“No admissions have been made by the accused about the allegations against him regarding the tendency of incidents.”
“No charges have been proven against him in that regard for the Crown to prove the facts in those tenancy incidents will effectively require it to conduct five separate trials, all within one proceeding.”
Prosecutor Philip Strickland successfully argued against all suppression orders. Source: Supplied: Guy McLean
'No further disciplinary action'
Even the prosecution admitted that apart from the Ryder case "it is true to say that other tendency matters have not been the subject of any findings."
Justice Burns added, said the evidence would divert the jury from its main function being an examination of the events of the night of November 9, 2019, and the accused's state of mind.
“Nothing in the evidence of the tendency incidents could in reference to the alleged tendencies assist the jury in understanding or inferring the accused state of mind at the time of the charged events”
Justice Burns pointed out that Constable Rolfe may have made many arrests during his time as a police officer in Alice Springs that didn’t involve the use of force
Earlier Constable Rolfe’s barrister, David Edwardson QC, argued because of this, the judge should continue to suppress the evidence, as “no finding has been made against Mr Rolfe in respect of those issues”.
“There was no further disciplinary action... taken against him," argued Mr Edwardson.
"So they’re no more than an argument that was advanced by the prosecution, unsuccessfully, as to conduct imputed against Mr Rolfe which has never been substantiated.
“Of course, if somebody made those allegations against Mr Rolfe outside of court, it would be plainly defamatory and he would be protected by the appropriate response; in other words, he’d sue for defamation."
Mr Edwardson also urged Justice Burns to continue to suppress text messages between Constable Rolfe and an army friend "because they have never been the subject of findings against him."
Defence lawyer David Edwardson QC speaks to the media outside the Northern Territory Supreme Court in Darwin, Friday, March 11, 2022. Source: AAP
Mr Edwardson cited a future coronial inquest, a possible ICAC investigation, and the fact that Constable Rolfe is facing disciplinary action by the police as further reasons to maintain the gag orders.
In the end, Justice Burns swept aside the defence pleas in the interest of "open justice" and the extraordinary public interest in the case, and revoked the orders.
“Whichever way one looks at the matter, while there may be some embarrassment, and potentially some damage to the reputation of Mr Rolfe, if that material which is subject to the suppression orders is published, that is of lesser importance, in my view, than ensuring that the public has the means of scrutinising the decisions which have been made by this court,” he said.
