Former Northern Territory police constable Zachary Rolfe has made a third legal bid to avoid answering certain questions at the coronial inquest into the death of Kumanjayi Walker, this time in the NT Court of Appeal.
WARNING: Aboriginal and Torres Strait Islander readers are advised that this article contains the name and image of a person who has died, used with the permission of their family.
Mr Walker died in November 2019, after then-constable Rolfe shot him three times during an attempted arrest.
Mr Rolfe was acquitted of all criminal charges related to the shooting last year after a jury was told he was acting in self-defence, having been stabbed in the shoulder with a pair of scissors by Mr Walker.
In November last year, Mr Rolfe briefly fronted the long-running inquest but invoked a legal claim of "penalty privilege" against incriminating himself in internal police disciplinary proceedings.
He refused to answer questions about 14 different topics, including his text messages, use-of-force incidents, as well as events on the night of the shooting.
In December last year, Justice Judith Kelly ruled penalty privilege did not exist in the context of a coronial inquest, automatically forcing Mr Rolfe to answer questions.
However, lawyers for Mr Rolfe launched appeal proceedings in January, arguing the then-officer should not be forced to answer any questions which could lead to disciplinary action within the police force, and asking the Court of Appeal — made up of three Supreme Court judges — to rule Justice Kelly "erred" in her judgement.
Despite Mr Rolfe being dismissed from the NT Police force last week, for unrelated matters, the court was told the appeal argument could be relevant to other police officers who might be called to give evidence at coronial inquests.
Mr Rolfe has previously indicated he would appeal the decision to dismiss him from the force.
Rolfe claims 'penalty privilege'
Under Northern Territory legislation, the coroner has the power to issue a "certificate" to inquest witnesses, protecting them from incriminating themselves by honestly answering questions.
In her original ruling, Justice Kelly said the certificate provision was introduced to the Coroner's Act in 2002 after a "perception by the coroner that the coroner's ability to get to the truth was being hampered by the fact that witnesses were refusing to answer questions, claiming privilege against self-incrimination".
She also ruled "penalty privilege" — a legal claim against self-incrimination in disciplinary proceedings — did not exist in the context of a coronial inquest.
Mr Rolfe's barrister, Ben Doyle KC, disagreed, and on Tuesday urged the Court of Appeal to overrule Justice Kelly's findings.
"It's said that the purpose of the amendments [to the Coroner's Act] was to get to the truth, and that might be true on a general level … [but] it doesn't dictate that the [penalty] privilege was abrogated," Mr Doyle KC said.
"It gives the coroner a discretion. The coroner may well decide not to offer a certificate. The coroner might think that, in the circumstances, the risk of incrimination — even with the limited [certificate] protection — outweighs the value to the coronial process of requiring that witness to speak against themselves."
He argued that the correct interpretation of the Coroner's Act would mean Mr Rolfe, and others, could not be forced to expose themselves to a penalty, calling penalty privilege a "fundamental right".
"It's only a privilege against self-exposure, no one's suggesting that this stops other witnesses giving evidence … to the effect that constable Rolfe has committed acts which could expose him to penalty," Mr Doyle KC said.
"While … we wouldn't describe it as a human right, it is reflective of a right, or legal value, that is attributed to natural persons and that's part of the reason it's found not to be available to corporations," he said.
"It has a relationship to the dignity of the individual."
According to the Notice of Appeal filed on behalf of Mr Rolfe in January, the former officer ultimately wants the Court of Appeal to declare that he is "entitled to refuse to answer the questions" and that the Northern Territory coroner "cannot direct or compel the appellant to answer the question(s)".
Attorney-general and NT Police also argue against original ruling
Separate lawyers for Northern Territory Attorney-General Chansey Paech and for the NT Police Force also urged the Court of Appeal to overrule Justice Kelly's original decision. The Coroner's Act, they argued, should be interpreted in a different way.
Like Mr Rolfe, both parties argued penalty privilege did apply in the context of a coronial inquest.
However, lawyers for Mr Paech and the NT Police argued that the coroner's certificate could protect witnesses from disciplinary penalties.
"Unlike legal professional privilege, unlike self-incrimination, penalty privilege has a different place … A more secure basis for understanding privilege is that it doesn't have that status, as a right that is implied," Kirsten Edwards, for Mr Paech, said.
Ian Freckelton KC, for the NT Police Force, told the court the interpretation offered by Mr Rolfe's lawyers would lead to an "absurd, bizarre or irrational consequence" and mean witnesses could be forced to give self-incriminating evidence, but be protected from criminal proceedings by the coroner's certificate, while others could avoid answering any questions at all.
"In respect of a more-serious matter, the coroner could compel the giving of evidence and, where the consequences are less serious, the coroner could not," Mr Freckelton said.
Laywers for the North Australian Aboriginal Justice Agency (NAAJA) and Mr Walker's family urged the court to uphold Justice Kelly's original ruling.
Inquest to resume in July
Coroner Elisabeth Armitage last year excused Mr Rolfe from answering the questions in dispute, pending the decision of the Supreme Court and, ultimately, the Court of Appeal.
The inquest is currently expected to resume in Alice Springs in July, when Mr Rolfe has been scheduled to give evidence.
On Tuesday, the Court of Appeal reserved its judgement and will hand down its decision at a later date.
It remains open to any party to the proceeding to launch a further appeal to the High Court of Australia.
