The coroner presiding over the inquest of Kumanjayi Walker may have to disqualify herself from the case, lawyers for Cons Zachary Rolfe say.
Walker, 19, was shot three times by Rolfe during an attempted arrest in the remote NT community of Yuendumu in November 2019.
Rolfe was found not guilty of murder and two alternative charges after a six-week trial in the NT supreme court in Darwin.
A three-month inquest is examining the events surrounding the Warlpiri man’s death.
The inquest did not hear from any witnesses on Friday, and was dedicated to legal argument, specifically as it related to claims by lawyers for Rolfe that issues which had been agreed on as central to proceedings should no longer be considered relevant.
But David Edwardson KC, for Rolfe, said that coroner Elisabeth Armitage may in fact have to disqualify herself from hearing the inquest, as she had been granted access to an unredacted version of a police report that would only be included into evidence in its redacted form.
The NT police force had claimed legal professional privilege over part of what is known as the Proctor report, meaning that Rolfe’s team and other parties only received redacted versions.
The Proctor report relates to the investigation into Rolfe’s shooting of Walker, including the involvement of expert witnesses.
But counsel assisting the coroner informed Rolfe’s lawyers on 4 September that Armitage had received the report in “unredacted form”.
“This of course then raises a very significant and important issue,” Edwardson told the court on Friday.
“Putting to one side the question of whether the disclosure of the unredacted portions amounts to waiver [of legal professional privilege], there is a much more significant issue that arises from this unfortunate and concerning sequence of events.
“The issue is the consequence of access to extraneous information by a presiding officer.”
Edwardson said that the question of disqualification must arise if the NT police force maintained legal professional privilege over the report.
Phillip Boulten SC, for the North Australian Aboriginal Justice Agency (Naaja), which is one of several parties to the inquest, including the NT police association, made clear that the submission regarding Armitage had been unexpected.
“We were unaware of an argument that would suggest that you might be conflicted as continuing in the inquest,” he told Armitage.
“That’s a matter of some concern. We would like to look at that issue with some great care.”
Earlier in the hearing, Dr Peggy Dwyer, counsel assisting Armitage, outlined the significant logistical issues which could flow from Rolfe’s lawyers submitting objections to the inquest only days before it was due to start,
“No explanation has been provided to this court as to why that was done. No apology has been made to this court for the enormous imposition.
There has been no apology to the family of Kumanjayi for that disruption or to other parties at the bar table.
“The actions of the lawyers for Constable Rolfe affectively ignores the orders that your honour made for the timetable of submissions in April and the appearance at May. We cannot have that, going forward – we cannot.”
Edwardson said that it had been necessary to hear Dwyer’s opening before submitting opposition to the scope of the inquest, and said that if the objection had not been raised then the entire proceedings would have been far more seriously disrupted.
But he said “we accept and apologise if that has caused, or anything else has caused, inconvenience to your honour, to counsel assisting or anybody else.”
The inquest continues on Monday, when it is expected that legal arguments regarding the scope of the proceedings and Armitage’s involvement will be completed.
