Senior police should have referred evidence from an investigation into Constable Zachary Rolfe to the Director of Public Prosecutions (DPP) for an independent opinion on whether he should be charged with perjury, the Northern Territory Coroner has been told.
WARNING: Aboriginal and Torres Strait Islander readers are advised that this article contains an image of a person who has died, used with the permission of their family.
Assistant Police Commissioner Bruce Porter — whose portfolio includes the Professional Standards Command — told the coronial inquest into the death of Kumanjayi Walker that he would have referred the officer to the DPP, after a police investigation into allegations Constable Rolfe "lied" to a court in an earlier case.
The coroner heard Local Court Judge Greg Borchers wrote, in May 2019, that Constable Rolfe lacked credibility, "fabricated" evidence and "lied" in evidence during the case against Indigenous man Malcolm Ryder, who was later cleared of assaulting police.
During the case against Malcolm Ryder, Constable Rolfe told the court that he saw Mr Ryder "throwing punches" towards a fellow officer inside a bedroom where his stepson was being arrested, however, Judge Borchers said footage captured by one of the other officer's body-worn cameras showed no evidence of Mr Ryder trying to hit anyone in the bedroom.
Constable Rolfe's lawyer, Luke Officer, told the inquest that a witness who would have supported Constable Rolfe's evidence was never called in the case against Mr Ryder.
In cross-examining Assistant Commissioner Porter, Mr Officer said "one of the criticisms" of Judge Borchers had been that he did not accept Constable Rolfe's account that he had been punched or scratched by Mr Ryder.
Mr Officer: "One of the matters you took into account is the fact that [another officer] gave a statement that he had seen, immediately after the incident involving Malcolm Ryder, that Constable Rolfe had a mark on his head and … he had supported Constable Rolfe's accounts?"
Assistant Commissioner Porter: "Yes that's correct."
Mr Officer: "That's pretty significant evidence that was absent before the judge?"
Assistant Commissioner Porter: "Yes."
Constable Rolfe was acquitted of murder, manslaughter and engaging in a violent act causing death over the shooting death of Kumanjayi Walker after a five-week Supreme Court trial last year, with the jury accepting he acted in self-defence, good faith, and in the reasonable performance of his duties.
During Assistant Commissioner Porter's evidence, the inquest was told that a police investigation into the allegation of perjury led to three NT Police officers recommending the matter be referred to prosecutors to determine whether charges should be laid.
However, Superintendent Richard Bryson ultimately decided there was insufficient evidence to charge Constable Rolfe and the matter was never referred to prosecutors for their opinion.
At the time, Superintendent Bryson wrote: "My reading of the material on file more properly demonstrates that the members actions as being unprofessional, not criminal … We prosecute people where there as been a full and proper investigation … the files as presented demonstrate little in the way of actual investigation and little in the way of cogent admissible evidence."
Under cross examination by Counsel Assisting the Coroner Dr Peggy Dwyer, Assistant Commissioner Porter told the inquest he would have made the referral.
Dr Dwyer: "It's very significant, isn't it, for a judge of a court of the Northern Territory to make findings, adverse to the credibility of police officers?"
Assistant Commissioner Porter: "Yes."
Dr Dwyer: "In terms of oversight of your officers, it should be given significant weight?"
Assistant Commissioner Porter: "It needs to be looked at carefully, yes."
Dr Dwyer: "It should have been sent to the DPP as an objective oversight at that time?"
Assistant Commissioner Porter: "I agree, it should have."
Assistant Commissioner Porter agreed that police oversight not only had to be fair and objective, but also perceived to be fair and objective.
The court heard Constable Rolfe was issued "remedial advice" over the arrest of Mr Ryder for failing to turn on his body-worn camera.
Five 'warnings' about body-worn video
During the evidence of Assistant Commissioner Porter, the coroner heard there was an "issue" with Constable Rolfe's usage of his body-worn camera between 2017 and 2019.
Barrister for the NT Police Force, Dr Ian Freckelton KC, told the court the officer was given formal reminders about the "non-activation of his body-worn camera" on five separate occasions.
"Given the five warnings or five responses to failure to use body-worn video in 2018 … and the fact that … on 2 April in 2019 there was a complaint in relation to [an arrest] … and that incident also involved a failure to activate body-worn video, you're up to disciplinary action, aren't you?" Dr Freckelton KC asked.
"Yes," Assistant Commissioner Porter said.
He told the court disciplinary action should have been taken, but that Professional Standards Command was not made aware of some of the instances of body worn video not being used.
Constable Rolfe's lawyer reminded the court that on the night Kumanjayi Walker was shot by the officer – in November 2019 – his body-worn camera was rolling.
Constable Rolfe 'stood down' from duty
In earlier evidence, Assistant Commissioner Porter told the coroner he had issued Constable Rolfe with a notice of his intention to medically retire him, after his months-long medical certificate expired at the end of January 2023.
After a medical examination of Constable Rolfe, Assistant Commissioner Porter told the inquest he had "formed the opinion that [Constable Rolfe] had the inability to continue as a member of the police force."
"I provided him a notice advising that it was my intention to retire him … on 6 February. And then on 7 February he was provided a notice to stand down from duty pending the part 5 action," Assistant Commissioner Porter said.
Assistant Commissioner Porter told the inquest 'Part 5' of the Police Administration Act included "inability provisions".
The inquest was also told that Constable Rolfe had been issued a 'section 79' — a disciplinary notice — after a 2,500-word statement the constable penned prior to the inquest resuming for 2023.
His lawyers had until Tuesday, March 7, to respond to the disciplinary notice. Constable Rolfe remains a member of the Northern Territory Police Force.
The inquest continues.
