After Constable Rolfe was found innocent of murder and two other charges, family and friends of Kumanjayi Walker expressed their grief and despair on the steps of Darwin’s Supreme Court.
Their frustration was not just confined to the trial and the verdict, but encompassed the justice system itself.
“We thought we were coming to neutral ground where we can have a multicultural jury instead of just non-Indigenous people," said senior Warlpiri Elder Warren Japananka Williams.
“There were no Indigenous people, or Yapa (Aboriginal) people, on that jury. We felt that we were left out.
"Are we not part of Australia?”
Early on in the Rolfe trial, a juror with a family member in the police force was concerned enough about the issue of perceived bias to raise the issue with Justice John Burns.
Distraught supporters of Kumanjayi Walker console each other after the verdict. Source: NITV News
The juror was not challenged by the prosecution or defence over their impartiality, and was allowed to stay on.
It raised many questions: does the Territory have a problem with all-white juries?
And why has it taken the Rolfe trial to shine a light on the issue?
'More confidence' in representative juries
The judicial system in the NT recognised it had a problem years ago.
Following a murder case in 2011, the Full Court was concerned about the issue of racial representation.
"It is probably a good time for the whole of the Act to be reviewed and we suggest that a reference should be made by the Attorney-General to the Law Reform Committee," they found in a review.
“There’d be more confidence... if the community felt it was fully represented somehow or other on the jury."
The NT Law Reform Commission wrote three separate reports on the issue, in 2013, 2020 and 2021.
Several former Supreme Court Judges have also written papers and books on the lack of Aboriginal representation in the justice system.
Veteran Alice Springs criminal lawyer Russel Goldflam is a member of the Law Reform Committee that worked on the reports.
“There’d be more confidence, potentially, in the outcome of a trial if the community felt it was fully represented somehow or other on the jury," he told ABC Radio Darwin.
The Law Reform Committee report in 2013 made 21 recommendations.
Several reports have recommended more representation on juries. Source: Getty Images
These included relaxing the requirements for jurors to “be able to read, write and speak the English language”, and instead be “able to understand and communicate in the English language, similar to other jurisdictions."
The Committee also recommended relaxing the laws that disqualify people from being on juries if they have committed crimes that have resulted in gaol terms, as it overwhelmingly affected First Nations people, who make up "86 per cent of the prison population in the NT and about 25 per cent of the population.”
Using text messaging or social media to summons jurors instead of sending letters was also recommended because many town camps in Alice Springs have limited mail delivery.
“They (the recommendations) wouldn’t change anything radical, but they would see a better chance of having a broader cross-section of the community on juries,” Mr Goldflam said.
Remote communities excluded from juries
Perhaps the biggest impediment to greater Aboriginal representation on juries identified by the report is that there are only two so-called “jury districts” in the NT where jurors are picked from: Darwin and Alice Springs.
More than three-quarters of the NT's Aboriginal people live in remote areas, which effectively rules out people living in the bush ever serving on a jury.
The Law Reform report recommended these jury districts “be widened, to allow further representation from Indigenous communities.”
Even if jury districts were widened, there is another issue, that people in those areas are selected for jury duty from the electoral roll.
“The use of the Electoral Roll to obtain a list of suitable jurors should be looked at as there are large sections of society potentially excluded who may not be registered for jury service," the report found, "Aboriginal persons and migrants in particular.”
In its current annual report, the Northern Territory Electoral Commission said there are more than 24–thousand people missing from the electoral roll.
This was due, it found, to "difficulties in maintaining the roll in remote areas of the Northern Territory where enrolment and voting rates are significantly lower than in urban areas.”
To overcome this, the Law Reform Committee recommended a similar model that operates in New South Wales.
“The ‘catchment pool’ of the jury list [should] be expanded by adding to the Electoral Roll names taken from Centrelink and Motor Vehicle Registry databases.”
The Law Reform report estimates more than an extra 17 thousand people could be identified this way.
Trial by peers?
The concept of a trial by ones peers means every criminal defendant has a right to be judged by their fellow citizens or equals.
This is rarely the case for Aboriginal people in the dock.
Northern Territory Supreme Court Judge Graham Hiley also wrote a paper on the lack of Aboriginal representation in the judicial system in 2019, entitled “Trial by Peers?”
The Judge suggested the courts could “be assisted by one or more witnesses with appropriate expertise in relation to a particular cultural issue involved."
"This may well involve other Aboriginal witnesses who might have appropriate seniority, knowledge and experience to be called as experts in relation to a particular matter. Alternatively a party might seek to call a linguist or anthropologist with relevant expertise.”
He concluded by writing:
“Aboriginal people, particularly those who live in remote communities, should be consulted and their opinions and suggestions sought as to how their particular cultural and other issues could be better accommodated within the criminal justice system.”
Doctor Thalia Anthony is a Senior Lecturer in Law at the University of Technology in Sydney and specialises in criminal justice and Indigenous legal issues.
In her study, Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds, she found:
“The ‘peers’ that Indigenous Australians often face in a jury rarely come from the community in which they belong."
“For the institution of the jury to function as a moral conscience and for it to gain the confidence of Indigenous people, Indigenous people must believe that the jury is capable of understanding their moral and ethical worldview and the circumstances in which they live.
Doctor Thalia Anthony is a Senior Lecturer in Law at the University of Technology Sydney. Source: AAP
“Otherwise, the jury lacks legitimacy for Indigenous defendants where a white jury is determining guilt for Indigenous victims where the accused is white.”
All white juries fail to address the appearance of partiality against Indigenous defendants, and Indigenous victims of a white accused, that flows from the systemic under-representation of non‐white jurors on jury panels.
By dismissing the possibility of unconscious bias, courts reinforce the racial fault lines that systemically favour white people.
In the end, the NT Law Reform Committee report was dumped in the too hard basket, like many others.
Valerie Naparljarri Martin may have summed it up best on the steps of the Supreme Court after the Rolfe trial verdict.
“The biggest problem we have is racism.
“[There is] racism in the court system, and racism kills. “
