A suppression order over a controversial police report into the death of Warlpiri-Luritja man Kumanjayi Walker has been lifted, revealing previously redacted details about the murder investigation into former constable Zachary Rolfe.
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.
The extensive report, dated August 2021, was prepared by Commander David Proctor for the purposes of the coronial inquest into the 2019 police shooting, and runs 170 pages in length.
It contains a series of scathing reviews of Northern Territory Police Force processes and concerns raised by prosecutors about the appropriateness of expert witnesses called in the murder case against Mr Rolfe.
Many of the issues in the report have since been explored by Coroner Elisabeth Armitage, in the coronial inquest that started in September last year.
Then-Constable Rolfe was acquitted of all charges, including murder, manslaughter and engaging in a violent act causing death, after a jury trial in Darwin last year.
The report and its earlier drafts have been the basis of a series of arguments between legal representatives for Constable Rolfe and the former Northern Territory police commissioner Jamie Chalker, both before and after the former's murder trial.
In September last year, the unredacted final draft was released to all parties in the coronial inquest into the death of Kumanjayi Walker.
Concerns about expert witnesses and 'perceived investigative bias'
The report revealed the Deputy Director of Public Prosecutions, Matthew Nathan SC, had dissuaded investigators from engaging the two use-of-force experts that were ultimately used in the murder case against then-Constable Rolfe.
In a previously redacted email from lead investigator Superintendent Kirk Pennuto to his superiors, he wrote that Mr Nathan had advised him NT Police Detective Senior Sergeant Andrew Barram and American Professor Geoffrey Alpert may not have been the best options for the prosecution case.
“Whilst there is no offence directed towards D/S/Sgt Barram, his experiences in the area of fatal police shootings cannot compare with those of his contemporaries,” Superintendent Pennuto wrote of the advice from Mr Nathan.
Commander Proctor wrote that New South Wales Police had declined to provide a use-of-force-expert, for unknown reasons.
Ultimately, no interstate expert was engaged “due to public comments by the Police Federation of Australia that they were supportive of Zachary Rolfe’s behaviour”.
The report showed Superintendent Pennuto's notes indicated he was told by his superiors to formally engage Professor Alpert "contrary to the advice of the DPP".
Commander Proctor's report said Professor Alpert "did not have the opportunity to properly consider all evidence potentially relevant to his own area of expertise", and that Detective Senior Sergeant Barram had "referenced materials … that were outdated" when providing his opinion.
"Not surprisingly, both Barram and Alpert provided identical opinions, given access to the same restricted information," Commander Proctor wrote.
Senior Sergeant Barram told the coronial inquest last year that no one had raised any suggestions of perceived bias with him.
Professor Alpert's evidence was used at Constable Rolfe's committal hearing, but not at the Supreme Court trial last year.
The report said that "any perceived investigative bias was seemingly not" in Constable Rolfe's favour, despite a "perception of bias in favour" of Mr Rolfe running in certain media and social media campaigns.
'Systemic' issues in specialist team deployment to Yuendumu
Constable Rolfe deployed to Yuendumu on November 9, 2019, as part of the specialist Immediate Response Team [IRT], after local officers requested assistance from Alice Springs with a spate of break-ins and the arrest of Mr Walker.
Commander Proctor said the entire deployment showed "significant system failures" and that communication breakdowns between ranks meant the purpose of the IRT's callout to Yuendumu was unclear.
"The IRT should not have been allowed to deploy at the time they did," Commander Proctor wrote.
"No mention was made [in an initial brief to the IRT] of the family of Kumanjayi Walker being intermediaries to assist in him handing himself into police.
"The message and mission had dissipated into a mission of 'simply arrest Walker'."
The report also noted the IRT's Standard Operating Procedures stipulated members subject to disciplinary action would be stood down during their investigation.
Constable Rolfe — despite having "several internal matters under investigation" at the time Mr Walker was shot — was still deployed as part of the IRT.
Commander Proctor's report detailed several concerns about Mr Rolfe's behaviour as a junior officer in Alice Springs and the "systemic failures" in supervision and reporting of police use of force.
"The largest contributing factor … is the absence of an 'early intervention system' to enable the early identification of officers who are engaging in or demonstrating behaviours that are not appropriate of expected from an officer," Commander Proctor wrote.
Commander Proctor was also highly critical of the Northern Territory Police Force's recruitment processes, which did not pick up on Constable Rolfe's failure to disclose his adverse military history.
The report found the force had stopped requesting information from military services because it would take "an excessive period of time", which Commander Proctor said brought into question the "integrity and rigour of the whole NT Police recruitment process".
Murder charge recommended four days after shooting
The speed at which Constable Rolfe was charged with murder — four days after the shooting — has been subject to much scrutiny since the 2019 shooting.
Commander Proctor's report showed investigating officers "held concerns" over the lawfulness of the shooting after watching the body-worn footage the day after it happened.
In his report, Commander Proctor said the Director of Public Prosecutions watched the footage two days later and requested police file a "short" brief of evidence two days after that, before Mr Rolfe was charged with murder.
He also addressed speculation that Constable Rolfe was transferred from Alice Springs to Darwin after the shooting, so that it would be easier for police to arrest him but, ultimately, found the motivation for Mr Rolfe's move was "on welfare grounds", after his name and address had been leaked on social media.
Commander Proctor detailed the "unique circumstance" of the investigations into the shooting, with both a criminal and coronial investigation running concurrently.
His report said such a circumstance was not covered by existing policy and procedure, and that there was a "misconception" the coronial investigation was "jeopardising the integrity" of the criminal investigation.
The coronial inquest into Mr Walker's death is scheduled to resume in Alice Springs in July, when Mr Rolfe is expected to give evidence.
