Days before the inquest into the death of Kumanjayi Walker began, Northern Territory Police considered referring Constable Zachary Rolfe to the Director of Public Prosecutions for allegedly perjuring himself during a 2019 court case, the coroner has heard.
The allegation related to a ruling by Alice Springs Judge John Birch that Constable Rolfe "lied" in his evidence about the 2018 arrest of Indigenous man Malcolm Ryder and likely "deliberately banged" the man's head into the ground.
The alleged incident was ruled inadmissible by the Supreme Court and was not able to be used by prosecutors as "tendency evidence" in the murder trial of Constable Rolfe in March this year.
Constable Rolfe was found not guilty of murder, and two alternative charges, in relation to the shooting of 19-year-old Kumanjayi Walker after a five-week Supreme Court trial.
Northern Territory Coroner Elisabeth Armitage is now presiding over a three-month coronial inquest in Alice Springs, examining the circumstances of the Warlpiri-Luritja man's death.
In an attempt to have the Ryder issue, and several others, wiped from the list of coronial inquest topics, the officer's lawyers told the coroner police were considering charging Constable Rolfe with perjury, in relation to Judge Birch's 2019 ruling.
"We suggest that the Ryder incident referral to the DPP, made on the doorstep of the commencement of this inquest, by the Executive of the Northern Territory Police is not coincidental," barrister David Edwardson KC told the court.
"The ventilating of the Ryder incident issues and the prospect of a future charge about that incident has the very real capacity to interfere with his prospects of receiving a fair trial, should the director decide to recommend bringing a prosecution against him."
But within minutes, lawyer for the NT Police Force, Ian Freckleton KC, told the court he had an "update" which could "alleviate the concerns" of Constable Rolfe and his lawyers.
"This issue has been given further consideration by Crime Command and the decision has been made not to refer the perjury issue to the DPP," Mr Freckleton KC said.
"Constable Rolfe will not be charged with perjury in respect of this issue."
Inquest suspended as legal argument continues
The three-month inquest into the death of Kumanjayi Walker began on Monday last week, with three of around 80 expected witnesses giving evidence in its first few days.
Friday was set aside to hear legal argument about objections raised by Constable Rolfe's lawyers, who seek to narrow the scope of the coroner's inquiry and strike out evidence relating to Constable Rolfe's background.
Counsel Assisting the Coroner, Peggy Dwyer, told the court the officer's legal team raised the objection four working days before the commencement of the inquest, despite having "every opportunity" to do so in the months before.
"No explanation has been provided to this court as to why that was done," Dr Dwyer said.
"No apology has been made to this court for the enormous imposition.
"The actions of the lawyers for Constable Rolfe effectively ignores the orders that your Honour made for the timetable of submissions.
"The logistical issue that follows has very real consequences. People take time off work, they arrange childcare, the Northern Territory Government and its agencies book scarce accommodation for witnesses."
Constable Rolfe's barrister, David Edwardson KC told the coroner that he was not required to raise his objections ahead of time, and could have objected to evidence as it emerged throughout the inquest.
"Insofar as some suggest notice should have been given earlier, we apologise," Mr Edwardson KC said.
"There has been a lot of mixed messages, as happens with all cases of this nature, about what might be led, how it might be led and, in some cases, what we understood would not be led. But that position has changed."
Mr Edwardson argued four "categories" of evidence fell outside of the coroner's jurisdiction when it came to the inquest, including:
- Constable Rolfe's "accuracy and honesty" in his application to the NT Police force
- Text messages from Constable Rolfe's phone as evidence of "systemic racism or cultural bias" within the police
- Whether or not Constable Rolfe was affected by drugs on the night Mr Walker died
- Internal police "disciplinary" matters involving the young constable.
"[The challenged issues] have all the hallmarks of a roving Royal Commission, rather than the adducing of relevant and permissible evidence," Mr Edwardson KC said.
"The introduction of this evidence is so remote and removed that it will, we suggest, demonise Zachary Rolfe, which is particularly offensive, having regard to the unanimous acquittal following the exploration and detailed examination of the cause and circumstances of the tragic death of Kumanjayi Walker."
Dr Dwyer maintained that Constable Rolfe would be "treated with respect" when it came to the inquest.
"I can assure his legal team that when Constable Rolfe … will be treated with respect and he will have an opportunity to reflect on the questions that I put him, because he has a lot of valuable information that then this court needs to consider," Dr Dwyer said.
Mr Edwardson also objected to Constable Rolfe's ex-fiance, who spoke to investigators about the Ryder incident, being called as a witness.
Decision on legal argument expected early next week
Constable Rolfe's lawyers also argued for access to an unredacted version of a police report, referred to as the "Proctor Reports", which Northern Territory Police have claimed legal professional privilege over.
The court heard the unredacted document was provided to the coroner's office, which David Edwardson KC argued meant privilege had been waived.
He flagged there could be a "problem" with Coroner Elisabeth Armitage presiding over the inquest if NT Police maintained their claim of legal professional privilege over the document.
Lawyers for other parties involved in the inquest, such as Northern Territory Police and NAAJA, will make submissions to the coroner on Monday regarding the scope of her inquiry.
Coroner Elisabeth Armitage is expected to hand down a decision early next week.
