Northern Territory police officer Zachary Rolfe has launched an appeal of a Supreme Court decision that ruled he could be forced to front the coronial inquest into the 2019 police shooting of Kumanjayi Walker.
Lawyers for the officer filed a Notice of Appeal in the Supreme Court earlier this week, claiming Justice Judith Kelly "erred" in her decision handed down in December last year.
Documents obtained by the ABC show that Constable Rolfe will seek a declaration that the coroner "cannot direct or compel the appellant" to answer questions where answers "would tend to expose the appellant to a penalty".
The appeal raises questions as to whether Constable Rolfe will give evidence when the inquest into Mr Walker's death resumes in February.
Northern Territory coroner Elisabeth Armitage is presiding over an extensive inquest into the death of the Warlpiri-Luritja man, who was fatally shot by Constable Rolfe in 2019.
She heard three months of evidence last year and the inquest is set to resume for two weeks from February 27, when Constable Rolfe is expected to face and answer questions.
Constable Rolfe was found not guilty of murder, manslaughter and engaging in a violent act causing death, after a criminal jury trial in early 2022.
Jurors in that trial heard the Constable Rolfe fatally shot Mr Walker during an attempted arrest in the remote community of Yuendumu, 300 kilometres north-west of Alice Springs, after the 19-year-old stabbed him in the shoulder with a pair of scissors.
Rolfe’s lawyers say 'penalty privilege' bars questions on certain issues
Constable Rolfe briefly fronted the inquest during hearings in November 2022 but was excused from answering questions related to 14 different topics — including his text messages, his application to the Northern Territory Police Force (NTPF) and his prior use-of-force reports – while the Supreme Court reviewed Coroner Elisabeth Armitage's decision to compel officers to give evidence.
Constable Rolfe and his colleague, Sergeant Lee Bauwens, argued in the Supreme Court in November 2022, that police officers cannot be forced to answer questions that could lead to disciplinary action at work, claiming "penalty privilege" was a "common law right".
After two-days of legal argument, Justice Judith Kelly ruled against them and wrote their argument for Judge Armitage's decision to be overruled would lead to "an absurd result".
In December 2022, Justice Kelly ruled "penalty privilege" did not exist in the context of a coronial inquest and agreed with lawyers from the North Australia Aboriginal Justice Agency (NAAJA) that a certificate available to coronial witnesses was designed to protect them from self-incrimination but not disciplinary proceedings.
"[The certificate provision] 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 wrote.
Justice Kelly also wrote that if, on appeal, she was found to be wrong in her decision, then Coroner Elisabeth Armitage's original decision should be upheld.
"If I am wrong to prefer the construction contended for by NAAJA, it seems to me that the alternative construction contended for by the Attorney-General and the NTPF must be correct. The purpose and effect of s.38 is to abrogate the privilege against self-incrimination and to apply the same procedure to penalty privilege," Justice Kelly wrote.
The notice of appeal filed on behalf of Constable Rolfe shows the officer will argue Justice Kelly "erred in holding that penalty privilege is not available to a witness as a ground for declining to answer a question in an inquest".
A date for the appeal arguments to be heard by judges of the Northern Territory Supreme Court has not yet been set and it is unclear how long it would then take for a decision on the appeal to be handed down.
