Death of Kumanjayi Walker

Walker was sentenced to 16 months' jail for the November 2018 break-in. However, the judge backdated and partly suspended the sentence so that Walker could attend a rehabilitation program at CAAAPU. Eight days after transferring from prison to CAAAPU, Walker cut off his monitoring device and absconded, heading back to Yuendumu once again. Since Walker had violated the terms of his suspended sentence, a warrant was issued for his arrest, and his girlfriend was warned. Acting on a tip-off, two local police officers confronted Walker at a house in Yuendumu on 6 November.[6] Walker lunged at the officers with a small axe or tomahawk; the police retreated and Walker ran off into the scrub,[12] dropping the axe on the front porch. The two officers later said that they did not consider Walker to be a threat to their lives, seeing the use of the axe as "more of an intimidation to get out of the room... a show to his partner... he just wanted to get away".[13]

Although Walker was a violent offender, the failed arrest was the first time he had threatened violence against police.[12] The task of arresting him passed from officers based in Yuendumu to the Alice Springs-based Immediate Response Team. This team, which included Rolfe, arrived in the town on the evening of Saturday 9 November. The NT Supreme Court later heard that the IRT members were aware of the axe incident, and had viewed the body-worn camera footage from the failed arrest attempt.[14]

On 6 November, unidentified offenders ransacked the home of the manager of Yuendumu's medical clinic. The following day, the windscreen of her car was smashed, and on Friday she and her husband drove to Alice Springs, 300 km (190 mi) away, to have it fixed. Later that day, someone tried to break into the house again, as well as the home of a colleague at the clinic. That night, the homes and vehicles of two other nurses and a midwife were attacked with shovels, pickaxes and other weapons. There had been similar incidents in the preceding months, and, fearing for the nurses' safety, health department officials decided to evacuate all medical staff and their families on the morning of 9 November.[15]

The shooting took place on the evening of 9 November 2019. Rolfe and his partner, Constable Adam Eberl, went to the house where Walker was staying and attempted to arrest him. A struggle ensued during which Walker produced a pair of surgical scissors and stabbed Rolfe in the shoulder.[13][14] Rolfe fired a total of three shots at Walker. According to court documents, the assumed facts (comprising body-worn camera footage from Eberl and Hawkings along with transcripts from the audio) include the following:[16]

At 7:21:50pm, the accused stated to the deceased, "Just put your hands behind your back." The deceased then retrieved a secreted pair of scissors and stabbed the accused in the left shoulder before the first shot was fired.

At 7:22:01pm, the accused fired one shot into the middle right region of the deceased's back. This shot was fired at close range.

Dr Marianne Tiemensma, a specialist forensic pathologist, undertook a post mortem examination of the deceased. She concluded that this shot was not fatal.

The accused fired a shot at 7:22:04pm into the deceased's left side torso (2.6 seconds after the first shot).

At 7:22:05pm, the accused fired another shot into Walker's left torso (0.53 seconds after the second shot).

Ballistic evidence indicates the second and third shots were fired at a distance of no more than five centimetres from the deceased.

Dr Marianne Tiemensma's conclusion from the post mortem examination is that the fatal shot was either the second or third shot.

At 7:23:10 pm, handcuffs had been successfully applied to the deceased.

A seriously wounded Walker was then taken to Yuendumu police station and given first aid. The local health clinic was closed, and Walker died about an hour after the shooting.[14] The Royal Flying Doctor Service could not fly to Yuendumu because it was impossible to guarantee that the crew would be safe from attack when they landed. Residents set fire to the clinic and threw rocks at nurses who arrived by road from Alice Springs, striking one in the head.[17][18]

Some members of the Aboriginal community have since blamed Walker's death on the absence of medical staff at the clinic or the RFDS decision not to attend the incident.[18] Subsequently, Yuendumu elders successfully demanded that the local clinic manager, who had been out of town at the time having her vandalised car repaired, not be allowed to return.[19]

Although an investigation into the incident was initiated, senior police sought to expedite charges against Rolfe. Rather than wait for detectives to gather evidence, Deputy Commissioner Michael White, Assistant Commissioner Nick Anticich and Crime Commander Martin Dole sent the body-worn camera footage to prosecutors on 11 November – an unusual step so early in a case. On the basis of the footage alone, Director of Public Prosecutions Jack Karczewski determined that murder charges should be laid. Karczewski and senior police directed that charges be laid no later than the November, and took the unusual step of demanding investigators sign non-disclosure agreements about the case.[20]

The Chief Minister of the Northern Territory, Michael Gunner, flew to Yuendumu on 12 November and promised the community that "consequences [would] flow".[21][20]

Rolfe was charged with:

• murder, contrary to section 156 of the Criminal Code Act 1983 (NT);
• in the alternative, manslaughter, contrary to s. 160 of the Code; and
• in the further alternative, engaging in a violent act which caused the death of the deceased, contrary to s. 161A(1) of the Code.[22]

The charges related only to the Rolfe's second and third shots, which were considered to have been fatal.[23] In the Northern Territory, murder carries a mandatory minimum sentence of 20 years' jail.[24] Rolfe pleaded not guilty to all counts.[22]

In the Northern Territory, police officers enjoy protection from civil and criminal liability in the performance of legally-defined functions under s. 148B of the Police Administration Act 1978 (NT). The defence raised the question of whether shooting an offender in defence of a fellow officer – an act not specifically contemplated in the Act – was such a function. This question was considered by the full bench of the Supreme Court and, ultimately, the High Court of Australia. Rolfe was represented in the High Court case by high-profile barrister Bret Walker. In a unanimous decision, the full bench of the High Court held that the protection from liability applied only to "those of the common law ... and the power of arrest".[22][25]

The court case was known as The Queen v Rolfe. Rolfe remained free on bail during the trial.[24] Given the significant publicity surrounding the case, Rolfe's defence team successfully sought to have the trial moved from Alice Springs to Darwin.

The murder trial, before Supreme Court Justice John Burns, took five weeks. To find Rolfe guilty of murder, the jury would have to consider that the prosecution had proved that the officer intended to cause the death of the deceased or cause him serious harm. The prosecution would also need to prove:[26]

• Rolfe was not acting in defence of himself or his partner when he fired the second and third shots;
• that his conduct was not reasonable in the circumstances; and
• that he was not acting in good faith in exercising his duty as a police officer.

The prosecution had hoped to use four previous complaints of excessive force by Rolfe during unrelated arrests as "tendency evidence"; however, Justice Burns agreed with the defence that these incidents were not relevant to the case, along with some text messages sent by Rolfe in which he suggested that there were "no rules" in policing with the semi-tactical squad.[27] The defence argued that, while the case was tragic, Walker had been responsible for his fate. Barrister David Edwardson SC criticised the NT police executive and three of the prosecution witnesses, and said that the trial was not about non-compliance with orders, but about "what Zachary Rolfe saw, heard, felt, and perceived when he made that critical decision".[28]

The jury deliberated for seven hours before reaching a unanimous not-guilty verdict on 11 March 2022. Following his acquittal, Rolfe told the waiting media that while he welcomed the verdict, "a lot of people are hurting today — Kumanjayi's family and his community... and I'm going to leave this space for them".[29]

Anticipating that members of the Yuendumu community would not receive closure in the event that Rolfe was acquitted, the NT Government prepared a secret report canvassing a whole-of-government response to any not-guilty verdict. This report predicted brain and nervous system damage in children, an increase in risk-taking behaviour, and attacks on police, health workers and local businesses.[30][31]

Following the verdict, Yuendumu elder Ned Jampijinpa Hargraves called for police in remote communities to be disarmed.[8] His call was supported by the Aboriginal Peak Organisations of the Northern Territory and Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar. However, the Territory Government has ruled out this option, citing the risk to officers' safety.[41]

Rolfe was the first Northern Territory police officer to be charged for the shooting death an Aboriginal person since Robert Jongmin was shot dead by Senior Constable Robert Whittington in 2002. (Whittington was charged with "causing serious actual danger", but the prosecution was barred by a statute of limitations.)[42] Some observers, such as Jamie McConnachie of National Aboriginal and Torres Strait Islander Legal Services, saw the trial as an opportunity to provide redress for deaths in custody more generally.[29] Others noted that to see the trial in these terms was to ignore the facts of the case and deny the accused procedural fairness.[21]

When Rolfe was arrested the following day at the police barracks in Darwin, one of the investigating officers noted in her police diary that she was "not comfortable with arrest and rushed process without full assessment of evidence and ability to investigate objectively".[20] The rushed prosecution was also criticised by the union representing police.[21]

Following suggestions of political interference in the decision to prosecute, the Territory's Independent Commissioner Against Corruption confirmed that he was considering whether to launch an inquiry into the case. Gunner has denied being involved in the decision to prosecute, and has praised Police Commissioner Jamie Chalker as "an absolute straight shooter".[31][21][30]

Jurors for the case were drawn at random from the electoral roll in the Darwin area. As the electoral roll does not contain racial data, the racial makeup of the jury is not known. However, Warlpiri elders observed that no jurors in the Rolfe trial were "noticeably" Aboriginal and suggested that this may have affected the outcome.[43][44]

Despite the fact Rolfe was exonerated, critics have asked why he was not held on remand for the two years between his arrest and the verdict.[43]

A campaign under the slogan "Justice for Walker" (#justiceforwalker) was begun in the aftermath of the shooting, with protesters rallying in Alice Springs days after the shooting, and in the capital cities of Australia in 2019.[7][32] The campaign continued after the acquittal of Rolfe, led by Walker's cousin, Samara Fernandez-Brown.[8]

On 2 April 2022 the NT Independent Commissioner Against Corruption (ICAC), Michael Riches, announced that he would be examining the few days leading up to Rolfe's arrest to assess allegations of improper conduct relating to Rolfe's arrest and charge. He would then also decide on the value of a public inquiry to lay bare the matter. The allegations, made by the NT Police Association, the Country Liberal Party and Rolfe himself, suggest political interference by Chief Minister Michael Gunner or Police Commissioner Jamie Chalker. Gunner strongly denies the allegations and says he welcomes an inquiry.[45]