More Thoughts on the Territory’s Sorry Justice

In the ongoing saga of the Zachary Rolfe trial, of which I have written here and here, I would like to address a couple of loose ends.

The first of these relates to the verdict.  I have read a lot of opinion to the effect that sending Rolfe and his partner into the community, armed, to arrest a bail jumper at that particular time was heavy-handed.  That confronting a disturbed young man in this way was not appropriate policing.  That it should never have led to his death.  

All of that may or may not be true, but it is a reflection of police policy and procedures. It was not Rolfe’s decision.  He was acting under orders.  As a result, he and his partner found themselves being attacked with a potentially lethal weapon.  That was why he shot Walker.  It was common ground between the prosecution and the defence that the first shot was justified.  So, Rolfe was justified, at this point in using potentially lethal force.  He was not charged with firing that first shot.  He was charged with firing the second and third shots 2.5 seconds after the first.  That is roughly the time it has taken you to read this sentence.

Let’s look at this from the point of view of then-constable Adam Eberle.  Does anyone imagine that he, writhing on the ground with a demented and known violent offender brandishing a pair of surgical scissors in close proximity to his throat, would have said to his partner: ‘Zach, stop!  Before you pull that trigger, think! Is there a better way?’  Or more to the point, would he have appreciated his partner exercising that level of detachment?

Since I last wrote on this subject, more ‘tendency’ evidence has been released by the Northern Territory Supreme Court.   To quote the Australian:

The Northern Territory Supreme Court has released further details of the evidence crown prosecutors wanted to use to persuade the jury in Zachary Rolfe’s murder trial he had a tendency to use excessive force on arrest targets.

A suite of videos released on Monday night showed Constable Rolfe involved in physical altercations with Aboriginal men in Alice Springs. It comes after a similar video was released by the court on Friday. Court transcripts reveal prosecutor Philip Strickland SC wanted to use the videos to argue that Constable Rolfe tended to rush into situations, use excessive force and then provide false justification for his actions.

Mr Strickland did try unsuccessfully to persuade the jury that was what occurred when Constable Rolfe fatally shot Kumanjayi Walker. The jury acquitted him of all charges.

Judge John Burns ruled shortly before the trial began the additional “tendency evidence” could unnecessarily prolong the proceedings and confuse and distract jurors from their primary task of evaluating Constable Rolfe’s “state of mind”.

In other words, Justice Burns ruled that the ‘tendency evidence’ was irrelevant because it had already been established that Rolfe was justified in using force.  There was no question of him rushing into a situation and using excessive force.  So again I ask, why is this ‘evidence’ being thrust into the spotlight in this way.  This looks like another stitch up of the type that saw Rolfe charged in the first place.  Maybe I am being over-sensitive but this disturbs me greatly.

I have viewed the video of the Ryder arrest alluded to in my earlier article. It is very confusing and a number of officers are involved.  I could not identify the particular infringements that Rolfe is alleged to have committed but that could be because I’m not trained to analyse this kind of footage.  However, I’m betting you could compile a dossier of similar video evidence on almost any officer in the NT Police.

This footage, these incidents, are not relevant to Rolfe’s conduct in the Walker arrest.  They may be relevant to an investigation into Rolfe’s general conduct as a police officer – although no disciplinary proceedings have ever been instituted against him, as far as I am aware.  Or they may be relevant to an investigation into policing methods in the Northern Territory in general – in which case they would form just part of an array of evidence that I alluded to earlier, dossiers on every officer.  Either way, they have no place in the public domain until such investigations are complete.  And if no such investigations are contemplated, it is not the business of the justice system to release this information, however newsworthy it might be.


ONE OF the criticisms concerning the trial of Zachary Rolfe is that there were no Aborigines on the jury.  Chris Merritt had an interesting article in The Australian on March 15. Merritt states that racist bias was not a factor in Rolfe’s acquittal.  However, he goes on to say:

It is, however, worth noting that Rolfe’s jury was drawn from the Darwin community, which is on the coast,  1749km from Yuendumu in central Australia where the shooting occurred.

That is like selecting a jury from the suburbs of Brisbane to deal with an incident that took place in Melbourne.

If the goal was to ease community unrest, it failed.

Eliminating the possibility of local involvement was a wasted opportunity to build confidence in criminal justice – something that is clearly needed at Yuendumu – but it is not evidence that the jury in Constable Rolfe’s murder trial was racist.

I may be missing something, but I was somewhat perplexed by this sentiment from a journalist and lawyer as accomplished and objective as Merritt.  The jury was drawn from the Darwin community because that is where the trial was held.   If not Darwin, where else was the trial to be held?  It certainly could not be held at Yuendumu which would only leave Alice Springs.  That might be arguably more local to Yuendumu than Darwin, but it is not clear to me why easing community unrest would be the goal of a trial – other than by virtue of holding the trial in the first place and conducting it scrupulously according to law. I doubt that the decision on where to hold the trial had anything to do with community involvement.  

But getting back to the question of the jury.  My understanding is that the objection of the ‘community’ is not that the trial was in Darwin but, rather, that the jury included no Aborigines.  If by ‘eliminating the possibility of local involvement’ Merritt means excluding Aborigines from the jury, I can attest that there are Aborigines in Darwin.  However, even if the trial were held at Alice Springs, which has a higher Aboriginal population per capita than Darwin, it is highly unlikely any Aborigine would have been on the jury. 

Admittedly I have gained most of my legal knowledge from John Grisham Paperback University so I may be a little out of touch in Australian jurisdictions.  Bear with me.  In general, before a jury is empanelled, the defence counsel and the prosecutor have the right to challenge any potential juror without giving any reason.  These are called peremptory challenges.  It is not clear how many of these challenges are allowed in the Northern Territory – the only source I could find says that the number is limited, so perhaps it is determined on a case-by-case basis.  In NSW it is three. 

To begin with, it is a well-established fact that Aboriginal people are under-represented in jury panels.  There is no legal impediment.  Aborigines are not excluded for reasons other than apply to all other Australians.  There are a number of contributing factors to this – under-representation on electoral rolls, lack of competent English, lack of desire to serve and so on.  It seems to me this is nothing more than a continuation of Aboriginal ‘exclusion’ that prevails in other facets of society, work, education and so on.  So even in the best-case scenario under normal circumstances pertaining at the time of Rolfe’s trial, there would have been few Aboriginal people to choose from.

In any case, the utterances of both Chief Minister Gunner – that “consequence will flow” – and ICAC commissioner, Ken Fleming QC – that anyone who said black lives don’t matter is “guilty of corrupt conduct” – must have effectively poisoned the potential Aboriginal jury pool, not least in Alice Springs.  Eliminating Aboriginal jurors would be a tactical move on my part, had I been Rolfe’s lawyer, that could backfire but, in the interest of my client, it would be hard, possibly derelict, to resist.  But more importantly it would, no doubt, infuriate the ‘community’ even more than the fact that there were no Aborigines on the panel in the first place.  That might be why Darwin was felt to be the safest place for the trial.

If you’re looking for someone to blame for lack of Aborigines on the jury, you could start with Gunner and Fleming.

15 thoughts on “More Thoughts on the Territory’s Sorry Justice

  • Lewis P Buckingham says:

    I find myself conflicted by this case.
    Were the prosecution sure of their grounds, why not argue that the directions to the jury and the evidence admitted was inconsistent with natural justice and appeal to the High Court?
    After a single trip to Alice Springs I learned it was not safe to go out at night.
    On one occasion my wife was cautioned not to go to the supermarket at night.
    I went instead and was surrounded by arguing drunk citizens.
    The dry creek bed the next morning had discarded spirits bottles and rubbish from slabs of beer.
    The supermarket had a sense of siege, the door into it had a smashed window, yet to be repaired.
    When Rolfe commented on the situation in Alice he was arguably telling the truth.
    The airline bookings were done from elevated heights, out of fist and personal violence range.
    Perhaps they were prepared for axe and knife attack.
    However police training and response are always a vexatious area.
    In Victoria the police have lately been shooting mentally ill people.
    In NSW a special unit trains police in the handling of the drug damaged and mentally ill.
    This is also done at the Commonwealth level.
    As expressed in the op ed, if there is a problem in policing the buck stops at the top.
    This applies to Dan Andrews,the ADF especially while on active service, and, of course, at the local level in the Territory.
    My conflict is shown by the answer to the question
    ‘Could the arrest by Rolfe have been done better without loss of a life?
    This is a separate question as the one tested viz ‘Did the police officer use undue and disproportionate force in shooting the escapee, so killing him?’
    The first question needs be addressed.
    I accept that the previous arrests by the constable could well be following training and making the best of most conflicts he is forced to endure.
    The lead must come authentically from the community involved.
    Otherwise it will be seen to be imposed.
    However if Rolfe is made a scapegoat then no one will want to be part of the police force in the territory,
    especially competent and brave women.

  • Ian MacKenzie says:

    I’m not conflicted by this case. It seems obvious that in the 2.5 seconds – count them – one and two and three – that Rolfe had, having already been stabbed, to save his partner or do nothing and leave it to chance, the obvious thing to do was save his partner. That has no bearing on what we might think about the circumstances of Walker’s upbringing or what experience indigenous jury members might have brought to the trial. Was Rolfe right to save Ebert or not? That’s the essence of the trial. That the jury was unanimous comes as no surprise to me, but then I’m not trying to solve nationwide indigenous disadvantage through injustice to a n individual police officer trying to do his job in difficult circumstances.
    In my previous comment on O’Brien’s last contribution, I commended Warren Mundine’s approach of advocating an honest and open discussion of the violence afflicting remote indigenous communities, rather than the politically correct evasion of racism offered by others. I see nothing here to change my mind.

  • Lewis P Buckingham says:

    Its not as if the mentally ill only inhabit the territory.
    Under the heading’ Police bid to keep the secrets of the super taser’ Pg 10 Daily Telegraph March 22 nd 2022.
    No doubt paywalled, the gist from the report is that the NSW coroner thinks people should know that ordinary tasers don’t always work, but the super taser can and is less lethal than being shot.
    ‘ McKenzies family said at the time he did not need to be shot….’
    Better equipment and practices may have saved a life here.
    Well, that’s what the NSW deputy state coroner appears to think, otherwise why tell people about it all?
    Perhaps more ‘learnings’ need apply in the ‘Wild West’.

  • Suburban Boy says:

    Peter, in the NT the number of peremptory challenges allowed to each side is six (see Juries Act 1962, section 44).

  • Peter OBrien says:

    Suburban Boy, thank you. Six would ensure there were no Aboriginal jurors.

  • Doubting Thomas says:

    Assuming that there is a minimum number of Aboriginal jurors that would be acceptable to the diversity warriors, it would be helpful if they would let us all in on the secret. And they might also explain just which definition of Aboriginal they have in mind.
    My quaint understanding of the underlying principle of the jury system is that an accused person is entitled to trial by a jury of HIS peers, which probably does not include a jury of the victim’s peers.
    Regardless, also assuming that at least some “white” citizens would also be acceptable, and that at least some of each cohort would, on the evidence, vote to acquit, it’s hard to believe that the inclusion of Aborigines on a jury would have achieved anything constructive. A succession of hung juries would have been intolerable.

  • Carlos says:

    And of course, the idea that an ‘aboriginal’ jurist would process the facts and evidence in a partisan fashion is both patronising and racist.

  • Occidental says:

    Peter correct me if I am wrong but the essence of your article can be summarised as follows-
    1. The dossiers or incidents of Rolfe’s history of policing should not be in the public domain as they were not, for a number of reasons admitted into evidence at the trial.
    2. The lack of any aborigines on the jury is a societal problem not evidence that there was something particularly untoward in this trial.
    With regard to the first issue, my view is that everything the executive arm of government does including by asio and asis should be in the public domain.There seems to be what I regard as a secrecy reflex poisoning our country. Why can’t the body cam footage recorded by police be uploaded to say a government server for viewing by the public every day so that it is available for anyone to observe. What harm would that do. It might go a long way to showing the public what a difficult job police have. Why can’t a public servants work file be read by any member of the public. Say for instance your Grandchild is having a hard time at school and you believe it is the teachers fault. If the teacher is a public servant you would be able to view their file, what is the big problem with government being transparent. I can hear the argument that people will not join the public service under such conditions, but that is rubbish. They might not like the fact that their work history is accessible by everyone but that might only prompt them to do better. As to Rolfe’s trial, you are well aware that you can report in print anything said in a trial (or parliament) and have a defence to defamation. Trials are meant to be open, often Newspapers will breathlessly report accusations made by a party during witness examination notwithstanding that those accusations made on the street would be defamatory. The reason is that courts are the forum of dispute and justice. For public confidence they are, in the most part, open, and that should continue. Your very article is displaying the benefit of people being engaged in what takes place in a trial.
    Your second point is patently correct. That does not change the question though of whether or not justice was done, or, seen to be done. The jury system developed hundreds of years ago in England when communities were smaller and juries therefore representative of an accused’s peers. The concept of being tried by your peers is admirable. But thats not what is happening. In the most part after all excluded occupations and excuses from jury service you end being tried by the bored and the weird.
    Finally to put all my cards on the table, I don’t even think the walker kid had a pair of scissors, why in Gods name would he have a pair of scissors. I have seen photos of the alleged stab wound to Rolfe and I suffer worse from a morning shave. The red mark on his shoulder looked like it could have been done with a finger nail. Rolfe might have been in fear of his life or of his partners life, but not justifiably. They were wearing bullet proof vests, armed with pistols, capsicum spray etc etc. in the end Rolfe puts three bullets in a 19 year old armed according to him with a pair of scissors. I will say this, if I get pulled over for a random breath test in the NT I hope it is not by Rolfe.

  • Occidental says:

    Carlos, regarding the “aboriginal jurist” the idea is not that he would be any more impartial, but rather would bring his life experience to the jury. In other words during lunch they might find him or her sensible articulate and knowledgeable. When during deliberations a juror might say Police are always reasonable to aborigines the aborigine might say “well not always”, and give an example. Or a juror might say, if you have a pair of scissors in your hand and you are screaming you deserve to be shot. To which the aborigine might say, “oh in my community everyone picks up knives spears and axes and yells but never does anything”. It might not change the jurors view, but it gives the jury more perspective. As I have noticed ever increasingly many people have very narrow life experience and as a result find it difficult to comprehend events which are outside their own experience. More the reason to have jurors from a broad range of backgrounds.

  • Peter OBrien says:

    my concern is not that material is in the public domain. In my earlier article I made that point. My concern is the way in which this material was released by officialdom (complete with commentary such as ‘ensuring that the public has the means of scrutinising the decisions which have been made’) in the immediate aftermath off a sensational trial and contentious verdict. It is inevitably linked in the public’s mind to the trial. It looks and sounds like a stitch up to me.

  • Daffy says:

    Ian McKenzie is right. An attacker with a knife, particularly one charged up with adrenaline, anger and drugs, is incredibly dangerous. Such a person can easily traverse half a dozen metres in the blink of an eye. The cop did the right thing, the only thing.
    And then one bullet is rarely a stopper for an enraged attacker. There are videos on YT from police body cameras showing the horror that police can face, with attackers not disabled by multiple gun shots who keep on coming.
    If someone attacks you with a knife, you keep shooting until they stop.

  • Carlos says:


    Indigenous people do not look, act and think in a homogenous, predictable way, not anymore anyway. The term ‘indigenous’ now covers a vast spectrum, from the genuine to the partial and all the way to the mountebanks like Bruce Pascoe.

    As a jurist, I wonder how Uncle Bruce would have cast his vote?

  • Adam J says:

    He wasn’t attacking someone with a knife, he was attacking 2 police officers with scissors; both were no doubt equipped with body armour, taser, etc. Furthermore, in this case the police went hunting for him specifically, which means they ought to have been prepared for resistance and not for shooting.
    You know who else they hunted and shot? Ned Kelly.
    Not a few weeks ago this site was against abusive policing. What would you say if it was a business owner trying to defend their shop from the Victoria Police? We would hear how incompetent they are and there would be cries of ‘So are they going to shoot anyone who resists arrest with scissors?’
    Seriously it’s pathetic.
    I don’t support the prosecution because you can’t be prosecuted for shooting 2/3 bullets. But shooting someone 3 times because they resisted you is bad policing nothing else.

    Indigenous means any Australian native people; it does not mean Aborigines.

  • pmprociv says:

    Members of the Yuendumu community have been advocating for intervening police to not carry firearms. Is this on the basis of “fairness”, as if they inhabited some sort of tribal war zone? Maybe those police should be armed with only rocks, scissors, clubs and knives?
    A more fundamental question arises, one that nobody seems to have considered yet, but for me is critical: why are police in remote areas not recruited from the local communities? By definition, almost every white cop from an urban background is going to have “racist” attitudes”, however you choose to define them (“awareness of ethnic distinction”). Surely there must be plenty of eligible young males who could be trained in law enforcement? And think of the jobs created, as well as the invaluable role modelling.

  • DougD says:

    What do you think would have happened to an Aboriginal from Yuendumu if one had sat on Rolfe’s acquitting jury when he or she returned to Yuendumu. Respect for performing a difficult task? Or instead, some form of payback from Walker’s kin or from the entire community? Calling for Aboriginal representation on juries may involve issues a bit more complex than facile complaints that eliminating the possibility of local jury involvement was a wasted opportunity to build confidence in criminal justice.
    The conduct of the Crown in releasing evidence excluded from the trial by the judge suggests some authorities in the NT are running a vendetta against Rolfe. Hopefully, the inquest, expected to run for three months, will not join any vendetta. According to an ABC report on 26 May last:
    “The Northern Territory Coroner will look into the “past conduct” of Constable Zachary Rolfe and police responses to excessive force complaints in an inquest into the death of 19-year-old Kumanjayi Walker, a court has heard.
    Dr Peggy Dwyer [counsel assisting] told the court NT Coroner Elisabeth Armitage had been invited to travel to the community and hear from Mr Walker’s relatives ahead of the inquest.
    “Not necessarily to hear formal evidence, just in a way that honours the community of Yuendumu …,” she said.”

    But also hopefully, in a way that won’t create any impression that the coroner may be biased against Rolfe. If she does go, it would be wise for her to avoid Ken Fleming QC’s microphone.
    “Weeks of evidence about the circumstances of Mr Walker’s death were aired during Constable Rolfe’s trial, and Dr Dwyer told the court that witness statements and transcripts from the trial would be used as evidence for the inquest.
    “We won’t be going over all the same ground as the criminal trial and I think that’s important …”, Dr Dwyer said.
    “Because everybody has suffered great trauma in having to relive the circumstances of Kumanjayi’s tragic death from the trial, so we won’t need to do that in exactly the same ways.”

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