A Lamentable ‘Tendency’ of NT Justice

There has been another highly disturbing post-trial development in the saga of NT Police Constable Zachary Rolfe, acquitted for the murder of Kumanjayi Walker.  That’s strange, you might think, surely the trial is over and done?  Surely the juror decided a raging offender armed with a blade and an extensive history of violence represents a threat of the sort detailed in this video.  Not so, because the trial continues by other means. Let me explain, first by citing a story that appeared on Friday night on The Australian‘s homepage:

The jury in Zachary Rolfe’s murder trial was not told that in the lead up to Kumanjayi Walker’s death, the young Northern Territory policeman was involved in four other incidents of allegedly excessive use of force against Aboriginal arrest targets.

The twelve men and women who acquitted Constable Rolfe of murder were also not shown text messages in which he described Alice Springs as a “shithole” and “like the Wild West” with “f**k all rules in the job”.

Justice John Burns on Friday lifted all suppression orders relating to Constable Rolfe’s five-week NT Supreme Court trial. Defence lawyer David Edwardson QC called for prohibitions on publishing the so-called “tendency” evidence to remain to protect Constable Rolfe’s reputation. But Justice Burns said transparency was more important.

The decision clears the way for the public to learn the full scope of the argument crown prosecutors wanted to put to the jury. Prosecutor Philip Strickland SC wanted to argue Constable Rolfe displayed a pattern of behaviour in which he acted carelessly, allegedly used excessive force and then provided false statements to justify what he had done.

The article goes on to detail one allegedly discreditable incident:

In the most dramatic example, Constable Rolfe allegedly grabbed an Aboriginal suspect by the scruff of the neck, handcuffed him, hit him and “slung” his head against the ground, leaving him unconscious in a pool of blood for several minutes.

The court heard that afterwards, a female detective allegedly scratched Constable Rolfe’s face to give him a justification for what he had done. That evidence was supported by a statement from one of Rolfe’s former girlfriends, also a police officer.

A magistrate who considered the charges against the Aboriginal suspect, Malcolm Ryder, found him not guilty but concluded Constable Rolfe had deliberately assaulted Mr Ryder and then lied in evidence about what happened.

This incident, and others, may or may not have happened — and if they did, well to say they do not reflect well on Rolfe would be something of an understatement.  But that aside, what disturbs me about this is that these alleged incidents were deemed inadmissible to put before the jury during the trial itself for reasons well established in our system of jurisprudence.  They would probably be inadmissible in the case of any defendant. They would be doubly so in relation to a policeman, almost all of whom would have been involved in many violent incidents – it’s part of their job.  So why are they now being made public, by the prosecution, after the trial?

On Saturday morning, further was added to this story (emphasis added):

Constable Rolfe’s barrister, David Edwardson QC, argued successfully that the evidence was neither probative nor relevant. On Friday, he tried to persuade Justice John Burns it should remain secret, as the allegations were unsubstantiated and “no finding has been made against Mr Rolfe”. Justice Burns ruled “ensuring that the public has the means of scrutinising the decisions which have been made” was more important.

What is Justice Burns suggesting?   What decisions is he talking about?  Do these decisions include the verdict?  I suspect many people will read it that way.

Is he suggesting that the public now has a right to hear what the jury couldn’t, and make up its own mind?  That would be an extraordinary step. Or could it be the ‘decisions’ refers to the haste in which Rolfe was charged.  Is he suggesting that they mitigate the fault of the Police and DPP in this respect?  If that is what he believes, surely he could make the point to the coronial enquiry in his private capacity?  And if these incidents were to form part of this enquiry, why should they not remain sub judice for the time being?

I am not saying these incidents should be suppressed if, for example, an enterprising reporter had discovered them. But to have them released in this way – in the context of the trial – can clearly only have been designed for the prosecution to suggest: ‘Look we didn’t stuff up.  We were nobbled by a ruling that denied us crucial evidence which, had they known it, would have allowed the jurors to reach the correct verdict.’ 

The Mocker, writing in Thursday’s Australian was extraordinarily prescient:

If you happened to catch Philip Strickland SC’s comments outside court following Rolfe’s acquittal, you could be forgiven for thinking the Crown prosecutor was an advocate for Walker’s family. “The shooting at Yuendumu raised issues, not all of which could be explored at this trial,” he said.

We anticipate that those issues and the evidence that could not be examined in this trial will be very carefully scrutinised at the inquest. And it is our view that the family of Kumanjayi Walker and the Warlpiri community and indeed the Australian people deserve no less than that full scrutiny.”

Memo to Mr Crown: a coronial inquest is not a fallback for a failed prosecution. Neither is it for you to publicly allude to evidence that was not put to the jury. As for what the Australian people deserve that must include a police force and public prosecution service that is apolitical, impartial and objective.

A suggestion for the NT Office of the Director of Public Prosecutions: you might want to read and perhaps even follow your own prosecution guidelines, particularly that excerpt which mandates cases be initiated or continued only when there is a “reasonable prospect of conviction”. Also:

“A decision whether or not to proceed must not be influenced by any possible media or community reaction to the decision.”

Why then did your office give this case the go-ahead, let alone proceed to trial, when even a bush lawyer could tell you it would never get up?

This is a second trial, an ex officio continuation of the first, of Zachary Rolfe on the same charge, this time conducted in and by media.  The only difference is that, this time, the sentence is not custodial but reputational.   Effectively, the prosecution is declaring Rolfe guilty despite that fact that a jury found him innocent. That is certainly the way the Aboriginal community will see it.  And they will inevitably draw the conclusion that our justice system is broken and that it is stacked against them.

It is an inflammatory and extraordinary irresponsible course of action on the part of the DPP that can only have been designed as a pre-emptive defence against fall-out that will accrue against the Gunner government’s handling of this matter in any investigation or enquiry.

Once a verdict has been reached and the appeals process exhausted, then justice has been served and the State has a duty to accept that outcome.  After any high-profile trial there will be those that believe the jury got it wrong, and in many cases they would be right – witness Cardinal George Pell.  Such critics do have the right to express that opinion, no doubt about it.  But the State does not enjoy that same right.  If it believes that some egregious error occurred that corrupted the trial, it has the right to take steps to redress that anomaly through due process. 

The exclusion of the so-called ‘tendency’ evidence was no error or anomaly but normal judicial practice. That the dossier was shoved into the spotlight post-trial suggests ‘normal’ in Territory jurisprudence is anything but.

20 thoughts on “A Lamentable ‘Tendency’ of NT Justice

  • Doubting Thomas says:

    I was gobsmacked when I read that story in the Australian. I was amazed that they are having a coronial inquiry after the trial of Constable Roffe. All this suggests that the NT government and its justice system have learnt absolutely nothing since the Lindy Chamberlain fiasco.
    Those who read Joanne Lees’ account of Bradley Murdoch’s murder of her boyfriend and of the police investigation that followed will be aware that the NT police treated her as a very serious suspect in her boyfriend’s murder. They seemingly were quite content to treat her as the proverbial bird in the hand being worth more as a suspect than the then as yet unidentified Murdoch.
    As for the forthcoming coronial inquiry, in what way is this not, in effect, double jeopardy?

  • Daffy says:

    The nub of the issue is that people in general, and indeed the media, fail to understand how dangerous a sharp instrument is and how quickly it can be used to fatal effect. So fast in fact that it can all happen before one could draw a gun or even pull a trigger. But even then, bullets don’t always stop the attack. https://youtu.be/KT0KcenH_eQ and https://youtu.be/1uFtGr7CGsg, for instance. An angry attacker can cross several metres and use a knife against a person in less than a second! Nor can one shoot at the legs with reliable effect, as the first video shows, even aiming for mid torso the assailant continued.

  • Alistair says:

    It’s Willshire all over again. The Government and police hierarchy want to hang (metaphorically perhaps in Rolfe’s case, but certainly not in Willshire’s) a policeman, any policeman, to appease the Aboriginal “mob” and their do-gooding fellow travelers in the media and legal departments. Guilty or innocent is not important, but someone has to be held accountable for all the evils of the self-determination era … and, of course, the police are the easiest sitting ducks in the firing line.. I can’t say that I have much sympathy for Rolfe through. Everyone on the coal face of the Aboriginal industry must all know that they are being set up by their bosses to take the fall at the first sign of trouble.

  • Ian MacKenzie says:

    This is crazy. The essence of the case is that Rolfe has just been stabbed by a known violent criminal who has now lunged at Rolfe’s partner. In two and a half seconds … one and two and three …. he has to decide what to do. He decides to save his partner. Anyone who can’t work out why he was acquitted shouldn’t be left alone in traffic. Making other accusations public after the trial indicates another Australian jurisdiction with a politicised legal system.
    There is an interesting two-page spread in the Weekend Australian about the background to this case, headed “Neglect Repeats Cycle of Harm”. In particular two contributions illustrate the different approaches to the issues.
    One is by Warren Mundine who knows Kumanjayi Walker’s family. He writes:
    “A few years ago, senior police in an Australian state showed me extensive mapping of troubled families put together by police and family services. They found a small number of families took up most police and social services resources, some over five generations; with extensive criminal histories, family violence and murder, mental health issues, drug and alcohol abuse, juvenile and adult criminal records, and so on.
    All these family members were known to police or family services as victims and/or perpetrators of child abuse. The saddest part was the sixth generation, aged 0 to 5, were already known to social services and police.
    Don’t believe anyone who says this is caused by poverty. It’s not. I grew up in abject poverty. My siblings and I were always clean and tidy and we went to school every day. Most people I grew up with were poor and were the same…. And in all of these families all the adults worked.”
    He goes on: “Communities aren’t safe if laws are routinely broken, and no one does anything about it. Jobs are created by commerce, but businesses won’t set up in places where violence and property damage are rampant, nor will communities have proper services if nurses, teachers and police are not safe there.”
    “We as a nation, as well as indigenous communities, need to face up to the violence and dysfunction plaguing so many indigenous families and communities across Australia and speak openly and honestly about it. Its root causes aren’t a mystery; nor the solutions. What’s missing is the will.”
    The other contribution which caught my eye is by a former child protection officer. The sub-heading on that article is “How can we help vulnerable kids and families in an institution steeped in systemic racism”.
    So there you have it. The alternatives are “face up to the violence and dysfunction plaguing so many indigenous families and communities across Australia and speak openly and honestly about it” or blame “racism”. Seems to me the first suggestion is part of the solution, but the second is a big part of the problem.

  • lbloveday says:

    The Heading above the sub-heading cited by Ian MacKenzie “How can we help vulnerable kids and families in an institution steeped in systemic racism” is:
    “Aboriginality is not a risk factor for child abuse” and the article includes the assertion “Race is not a violence or abuse risk factor”.
    It is authored by Dr Tracy Westerman AM who is “a proud Nyamal woman from the Pilbara region of Western Australia”. There are plenty of images of her found in a Google or DuckDuckGo search.

  • Occidental says:

    Peter, the lifting of suppression orders regarding rulings on the admissibility of certain evidence is not unusual. The public should know what takes place in trials. One of the great problems facing the justice system in this country is the ever increasing tendency for suppression orders to be made, or for evidence to be heard in camera, or for the identity of witnesses to be hidden. Everyone sees the Rolfe trial through their own lens. For me dealing with police in outback Queensland over a 30 years gives me a jaundiced view of the “thin blue line”. Now living a world away from all that the three things that struck me was firstly that the police officer shot an offender who was armed (allegedly) with scissors. Twenty years ago people were aghast when police shot a woman holding a knife, now scissors is reason to kill someone, (to be fair a couple of years ago a policewoman shot dead a suspect in custody, when he punched her in the face – so I shouldn’t be surprised), soon it will be for speaking harshly, or failing to comply with a lawful direction. The second thing that struck me (and Pell’s trial alerted me to it), was how the jury trial for a number of reasons is reaching its “use by” date. When I practiced criminal law juries were the only thing standing between incompetent policing and injustice, so I was constantly defending the jury system. But in the Rolfe trial not a single Aborigine on a jury, in a jurisdiction (the NT) where most white people regard aborigines as little better than vermin. I mean whilst I probably would have convicted the accused, I would have been shocked if any other verdict had have been returned with that jury. The final thing was that this was always going end in tears, when for some reason the numpkin in charge of the police decided that it was necessary to arm officers with assault rifles to arrest a 19 year old delinquent who had taken off his ankle bracelet. For many quadrant readers they might not see the congruence of this act of policing with what we have seen in Victoria during the covid hysteria, but in fact they have a lot in common.

  • geoff_brown1 says:

    “where most white people regard aborigines as little better than vermin.” There’s never any reverse racism, though, is there?

  • Doubting Thomas says:

    Occidental, it’s one thing to argue against suppressing evidence that is, or has been, actually placed before a jury. It’s quite something else to remove a suppression order after the trial on “evidence” that was formally withheld from the jury at the trial.
    This particular individual was something considerably more of a handful than your average 19 year old delinquent, and I cannot recall reading anywhere that Rolfe or any other officer in this case was armed with an assault rifle.
    It would be interesting to read how you would have handled this arrest had you been one of the officers involved.

  • Occidental says:

    Geoff_brown1, I am not sure what you mean by reverse racism.If you mean aborigines views of whites, I doubt it is any higher, but that is irrelevant because there weren’t any on the jury.

    Doubting Thomas, It is not about evidence, but about argument. It is important in my view that the public see what takes place in the courts of the country. You rarely see reports In newspapers or the media about trial argument, but it is just as important as the verdict. The public should know how a trial was conducted and what led to the verdict. What is kept out of evidence is often what leads to a verdict, be it conviction or acquittal. Most trial counsel will tell you that the voire dire is where a trial is won or lost.
    As to this walker, I have not been able to turn up any report of him having a criminal conviction, which if true is almost unique. He obviously had drug problems because he left the drug rehabilitation facility where he was wearing the bracelet, presumably court ordered, hence the attempted arrest. But from the axe body cam video, he appears to be the usual indigenous delinquent. I am not trying to paint him as some harmless child, but there are far worse specimens than him in the communities I can assure you. My point was that the arrest of an alcoholic teenager for not attending rehab has been escalated by police to “raiding” his community with assault rifles. This is the sad state that many police forces have got to in this country. They, the police, have gotten into a downward spiral not just with indigenous community but some of white Australia where the use of overwhelming force is seen as competent policing – it is not. As to what I would have done, I would have waited till pension day, and gone around at 5.00pm. He would have been unconscious by then.

  • call it out says:

    Thanks lbloveday.
    Dr Tracy Westerman is a blue eyed blonde. And, as she claims, “a proud Nyamal woman from the Pilbara region of Western Australia”.
    The world has gone mad.

  • Tony Tea says:

    I’ve been wondering whether the five occasions of unnecessary conduct which were listed by the prosecution, and which you quoted the other day:

    “It is my opinion that Constable Zachary Rolfe has on five occasions engaged in conduct that unnecessarily led to situations where force was then required, that would not have been necessary had Rolfe adhered to police use of force philosophy and training.”

    are the same ones you quoted in your article today which the “prosecution tried to bolster its flimsy case”:

    “The jury in Zachary Rolfe’s murder trial was not told that in the lead up to Kumanjayi Walker’s death, the young Northern Territory policeman was involved in four other incidents of allegedly excessive use of force against Aboriginal arrest targets.”

    Was the case bolstering in court?

  • Peter OBrien says:

    Tony Tea

    I’m now not sure. It sounded like testimony but possibly it was just a statement made to the DPP.

  • Tony Tea says:

    Peter, yes I’m the same as you. I had thought the statement the other day was part of the testimony.

  • Brian Boru says:

    IanMac. “The alternatives are “face up to the violence and dysfunction plaguing so many indigenous families and communities across Australia and speak openly and honestly about it” or blame “racism”. Seems to me the first suggestion is part of the solution, but the second is a big part of the problem.” I AGREE
    At first I thought that an inquest would just be a continuation of the “industry” covering its backside and perpetuating the status quo. But let’s hope a number of people of good will can come forward and offer some solutions.
    Daffy. Thank you for the video links. The first in particular that showed police continually retreating until they had no option and then being vulnerable. I had a good friend in the U.S. who knew police who said to me “police do not go out in the morning wanting to kill black people”.
    We can’t know what was Rolfe’s mindset on the fatal day. We can know however that Walker would not have been killed if he had not previously used an axe and had submitted to arrest on the last occasion. Remember also that his grandparents had been warned by a considerate policewoman after the axe incident just how serious it was becoming. Did they pass on that message?
    Occidental. I, you and any person, including police, have the right, maybe even the obligation, to use deadly force if we believe it necessary to protect our life or limb.
    Of course we need court proceedings to be open and fully reported. Suppression orders may be necessary at specific times but the light of day is vital for justice.

  • Brian Boru says:

    The angry black man at the top of this article is both a symptom and part of the problem. Let’s hope his rantings on TV shock good people to find solutions.

  • Brian Boru says:

    Peter O’B. Thank you also for the link to that video on YouTube.

  • Peter OBrien says:

    Brian Boru, thank Daffy and Roger Franklin.

  • Dallas Beaufort says:

    So, the Noble Savage say’s Hark! Give me more so we can continue our cultural traditions par excellence while govenment agencies build back better.

  • Robinoz says:

    Because Rolphe did something on one or more occasions doesn’t mean he did them on the occasion referred to in his trial some of which was video recorded. There is a risk posed by presenting previous alleged activities to the jury. A criminal doesn’t have his previous criminal record presented to a jury so that there is no bias in the decision. Everyone should be tried on the facts of the specific case, even habitual long-term criminals.

    Why you would hold a Coronial enquiry after a trial in which it was disclosed why Walker died is anyone’s guess (I assume a death certificate was issued with the cause of death shown).

    If anything, I would have expected a Coronial enquiry to be held first and the Coroner then sending the findings to a superior court for an indictment to be lodged.

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