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Following the acquittal of Zachary Rolfe in the shooting death of Kumanjayi Walker, a careful media offensive has begun in the police officer’s defence. By Russell Marks.

The reporting of the Zachary Rolfe trial

Constable Zachary Rolfe outside the Northern Territory Supreme Court in Darwin on March 11, after he was acquitted of murder and related charges.
Constable Zachary Rolfe outside the Northern Territory Supreme Court in Darwin on March 11, after he was acquitted of murder and related charges.
Credit: AAP / Aaron Bunch

In the week since a jury with no Indigenous members took less than a day to acquit Constable Zachary Rolfe of murder and two other charges – after he shot a 19-year-old Warlpiri man three times at point-blank range in Yuendumu in 2019 – Rolfe’s supporters, including many in media, have taken the opportunity provided by continuing suppression orders to challenge the initial decision to charge him at all.

When The Saturday Paper went to press, the suppression orders remained in place, but journalists and media organisations were arguing in the Supreme Court that they should be lifted so the narrative being constructed by the Northern Territory police union and News Corp outlets could be balanced with facts and allegations that challenged it.

The pro-Rolfe media offensive began immediately after the verdict, on the steps of Darwin’s Supreme Court. “A number of public figures have had quite a lot to say before he was charged,” observed Rolfe’s lawyer, David Edwardson, QC, a situation he described as regrettable. “Consequences will flow,” he added, repeating a phrase Chief Minister Michael Gunner used in Yuendumu three days after the shooting of Kumanjayi Walker.

The following morning, The Australian’s front page carried an exclusive interview with Rolfe, which had been conducted by journalist Kristin Shorten in December 2019, the month after the officer had been charged with murder. Shorten has been co-hosting a podcast summarising each day of the five-week trial. The interview had been held back from publication until after the verdict. In it, Rolfe foreshadowed the testimony he delivered in court more than two years later.

“It is extremely unfortunate that Walker passed but I did what I had to do to protect my partner [Adam Eberl] and myself,” Rolfe told Shorten. “Walker put us in that situation. He put my partner’s life at risk and my own life at risk. I would not do anything differently.” He explicitly denied he was racist: “To put it as bluntly as I can, if a white guy stabbed me and tried to stab my partner, I’d shoot him just the same.” 

The Shorten interview on the front page was accompanied by a colour photograph of Rolfe and contrasted with a story – again by Shorten – about Kumanjayi Walker, whom she referred to by his birth name, under the headline “Unwanted son never had a chance”. It detailed substance-abuse claims about Walker’s biological and adoptive parents and painted a picture of extreme dysfunction, including domestic violence. The story claimed “it’s impossible to understand” the shooting of Kumanjayi Walker “without knowing Walker’s history”. Subsequent reports have provided additional detail about Walker’s record of lawbreaking. One lawyer – who has asked not to be named due to his position in a state government solicitor’s office – told The Saturday Paper this week that The Australian’s coverage was “basically blaming Walker for being shot by Rolfe”.

In December 2019, Rolfe told Shorten of his belief that he had been “thrown under the bus” by senior levels of the Northern Territory Police Force, despite the video footage captured by police body cameras, which Rolfe described as “evidence that cleared me”. He said police command “sacrificed me to appease a crowd, which is not what a good leader would do”. The clear implication was that senior police acted, according to Rolfe, to charge him with murder four days after the shooting merely, or mainly, to appease Walker’s family in Yuendumu and broader supporters of the Black Lives Matter movement.

Edwardson said as much during his closing address to the jury, where he lambasted the various senior NT police officers called by the prosecution to give evidence. “The executive of the Northern Territory Police Force and those they deployed to justify these charges, you might think,” said Edwardson, “have thrown everything at Zachary Rolfe because of a decision [to charge him] that should never have been made.”

The idea that Rolfe should never have been charged in the first place has emerged as a key theme in The Australian’s coverage during the week since the verdict. The Northern Territory Police Association and its president, Paul McCue, have maintained that belief since November 2019. “Let’s not forget, Constable Rolfe and Constable Eberl were set upon viciously and they followed their training,” McCue said on the Supreme Court steps following the verdict. He described as a “travesty” the fact that Rolfe was charged “so quickly and without a thorough investigation”.

The Australian ran a 4000-word summary of the events that led up to the shooting, emphasising Rolfe’s “calm” response when he encountered Walker inside house 511 in Yuendumu and his efforts to apply first aid to Walker afterwards. Its stablemate, the NT News, reported that Walker and Eberl “fell to the ground in a life-and-death struggle inside house 511”. While that is what Rolfe told the court he saw, it is not an accurate summary of Eberl’s own evidence: he told the court he was attempting to “ground stabilise” Walker, and Rolfe’s body-worn camera footage shows Eberl kneeling on top of part of Walker’s body.

In another report, The Australian described Rolfe as “a private schoolboy [who] fell in love with policing ‘to help people’ ”. That report referred to earlier complaints made against Rolfe for his use of excessive force. Unnamed police said that complaints about them were “not uncommon” in Alice Springs because the town’s Aboriginal legal aid lawyers often encouraged their clients to lodge complaints. The Australian’s letters page filled with comments grouping Rolfe’s prosecution with those of Lindy Chamberlain and George Pell, which “should never have been brought”, and describing the murder charge itself as “a miscarriage of justice”.

The day after the verdict, The Australian also reported on police diary notes that purported to reveal that “senior officers repeatedly expressed concern about the urgency and reasoning behind the decision to charge” Rolfe. Three senior officers – Deputy Commissioner Michael White, Assistant Commissioner Nick Anticich and Crime Commander Martin Dole – reportedly took Rolfe’s body-worn camera footage to the then Director of Public Prosecutions, Jack Karczewski, QC, for an “initial opinion” on the lawfulness of Rolfe’s triple-deployment of his police-issued Glock pistol at point-blank range. Karczewski is said to have recommended the murder charge on the basis of the footage. Rolfe’s supporters say that was a rushed decision. It could also be interpreted as a damning indictment of what was shown on the footage.

In the days following the verdict, the NT opposition leader, Lia Finocchiaro, joined a growing chorus of voices led by McCue alleging political interference from the very top in the decision to charge Rolfe. Chief Minister Michael Gunner had met Warlpiri elders three days after the shooting and promised an independent coronial investigation. “Consequences will flow as a result,” he said. The pro-Rolfe conspiracists are claiming those words show that Gunner involved himself somehow in the decision to charge Rolfe. The campaign has been successful enough to have the NT’s Independent Commissioner Against Corruption, Michael Riches, consider whether to inquire into the investigation into the shooting.

 

Monday’s editorial in The Australian declared the Rolfe trial ended in “the right verdict”. It proclaimed that the three charges laid against Rolfe – murder, manslaughter and dangerous act causing death – were never justified. Nor was the “picking up” of the case by the Black Lives Matter movement. The editorial concluded that the prevention of similar tragedies “must start with addressing the serious problems that afflicted Walker’s life”, not with the reform of policing in Aboriginal communities.

The NT News went further. “In race politics,” it declared, “it seems a white policeman may never shoot a violent black offender attacking him without being accused of racism and murder.” The paper is calling for Police Commissioner Jamie Chalker’s resignation.

Yet very little of the News Corp coverage – reflected as well in that of other commercial broadcasters – has engaged with the evidence presented at trial.

Walker became an arrest target at the end of October 2019 because he breached a court order imposed for non-violent property offending. The Royal Commission into Aboriginal Deaths in Custody recommended in 1991 that such breaches should be met with summonses, not arrests. Yet NT courts still routinely issue warrants for breaches, and one was issued for Walker.

Walker travelled to Yuendumu, four hours’ drive north-west of Warlpiri country, to attend his great-uncle’s funeral. Funerals regularly impose obligations on First Nations people well in excess of those imposed on settlers. Court orders in the Northern Territory routinely fail to account for funeral and other cultural obligations. Unsurprisingly, funerals in Aboriginal communities are often the reason people breach court orders.

When Yuendumu police tried to arrest Walker, he threatened them with an axe. Those officers, who knew Walker, said they never felt he was going to hurt them but mainly wanted to escape re-arrest, presumably in part so that he could attend the funeral. The officers revised their arrest plan and decided to wait until after the funeral.

When Zachary Rolfe, who was in Alice Springs at the time, saw the footage of the “axe incident”, captured on the officers’ body-worn cameras, he thought the Yuendumu police were “greatly downplaying” it, that it was being “swept under the rug”. He raised the footage with his superiors.

Rolfe recommended the Immediate Response Team (IRT), of which he was a member, be deployed to Yuendumu. He told the court: “I characterised [Walker] as a high-risk offender, extremely violent, who was … willing to use potentially lethal weapons against police.”

But Rolfe did not speak with the Yuendumu officers. He had never met Walker.

For Rolfe’s superiors, the axe incident meant Walker’s arrest would need to be planned. Yuendumu’s station sergeant and her superiors developed an operational plan for Walker’s arrest at 5am on the Sunday. Four IRT officers and a dog handler would be going to Yuendumu to do general duties, which included arresting Walker.

If this plan to deploy IRT officers was clear in the minds of police command, the IRT officers told the court they understood Walker’s arrest was the main objective. They were told to pack their IRT gear, which included an assault rifle.

After the IRT officers left the police station, just after 7pm, Rolfe entered one house – number 577 – and searched each room with his hand on his holstered Glock pistol. More senior officers, including those responsible for training NT police, told the court Rolfe wasn’t acting consistently with his training or with documented procedures, especially with children in the house. Rolfe maintained otherwise. In the background to this trial was a policy question: to what extent should trained police be allowed to escalate the risk of violent confrontation, and then to claim self-defence when possibly foreseeable violence eventuates?

The officers moved to houses 511 and 518. Senior police told the court they should have formulated a plan and set up a cordon. Rolfe claimed that would have been “impossible” with only five officers and a dog.

The IRT officers, it seems, responded to the axe incident not by planning Walker’s safe arrest but by preparing to use greater force to effect it. Outside house 511, one officer was brandishing the assault rifle. A woman asked why and said it looked like police wanted to shoot someone. “Someone probably shouldn’t run at police with an axe,” Eberl replied.

Rolfe and Eberl approached the front door of house 511. Inside they saw a young man who, it would soon emerge, was Walker. Walker gave a false name but Rolfe suspected he had his man.

Despite characterising Walker as a “high-risk” offender, Rolfe failed to notice that Walker had his hand in his pocket, which is basic police training. Rolfe moved close to Walker to identify him using pictures on his phone he’d taken from a crucial email – the one detailing the Sunday arrest plan – he claimed he hadn’t read in full. Senior police said Rolfe unnecessarily placed himself in a high-risk position. Deaths in custody are rife with evidence of police and guards escalating risk like this. New Zealand police don’t routinely carry guns and tend to be better at avoiding situations in which they might need to use one.

When the officers moved to arrest him, Walker stabbed Rolfe in the chest with a pair of scissors, causing a small wound. Rolfe told the court he instinctively reached for his Glock and noticed Walker’s hand already on it. When he made that allegation in court, it was the first time he’d done so. He hadn’t issued commands to Walker, nor had he warned Eberl. He hadn’t mentioned it to his colleagues afterwards. He didn’t mention it in his interview with The Australian. Prosecutor Philip Strickland, SC, suggested he was lying to the court, which Rolfe denied.

Eberl restrained Walker from behind. Rolfe said Walker was continuing to stab at Eberl with his right hand. That can’t be made out on the footage and Eberl neither complained about it nor had any injuries apart from a scratch on his left arm. Rolfe drew his Glock and fired one shot into Walker’s torso.

Prosecutors did not allege that first shot was unlawful. It did not cause Walker’s death. The trial came down to whether Rolfe was justified in firing the second and third shots.

Immediately after the first shot, Eberl tackled Walker onto a mattress and began “ground stabilising” him. In the footage, Walker can be seen lying on his right side, with Eberl above him. Walker’s right arm – the one holding the scissors – can’t be seen. Eberl told the court he believed Walker’s right arm was underneath his own body. A biomechanics expert said that even if it wasn’t, any force Walker was able to muster would have been minimal and easily dealt with by Eberl.

Rolfe told the court he saw Walker continuing to stab Eberl’s neck, chest and shoulder. Nothing in the footage or any of the other evidence is consistent with this. Rolfe told the court he didn’t have enough time to shout anything. He did, however, have time to place his left hand on Eberl’s back, and shoot two more rounds into Walker’s torso. One of them eventually caused Walker’s death.

Part of this tragedy is that had the shooting occurred near a major hospital, Walker would probably have survived.

When Eberl realised what had happened (“Did you? Fuck.”) Rolfe said, “It’s all good, he was stabbing me, he was stabbing you.” In court, Rolfe explained he said those words not to justify what he’d just done but to help Eberl “come down” from a state of “auditory exclusion”.

Rolfe contradicted his superiors on training and defensive tactics. Strickland tied him in logical knots, leaving him unable to say why, despite apparently being so well trained, he failed to take even the most basic precautions against a person he’d determined was extremely violent. Eberl could easily have endorsed Rolfe’s claims about Walker’s right hand. He didn’t.

Rolfe’s lawyer, David Edwardson, QC, gave the jury a single expert. In the mid-1990s, Ben McDevitt rewrote the Australian Federal Police’s approach to the use of force. Now semi-retired, he endorsed most of Rolfe’s decisions and assertions. He even said Rolfe should have had his Glock already drawn when he entered the houses in Yuendumu. “I’ve gone into dozens of houses,” he said, “with far more firepower than what Mr Rolfe had, which have had children in them.”

Edwardson skipped over Eberl’s evidence in his closing and suggested Rolfe had only been charged because of a conspiracy in the NT police executive to do so. The jury that acquitted Rolfe had no Aboriginal member, although it did include one juror whose sister is a serving police officer. A 2013 review by the NT Law Reform Committee recommended reforms to encourage more Indigenous jurors, yet they remain unimplemented.

 

Since the verdict, Walker’s family and the chief executive of the North Australian Aboriginal Justice Agency, Priscilla Atkins, have echoed longstanding calls to remove guns from police in Aboriginal communities. Gunner has so far resisted them.

Further details about the shooting, its lead-up and its aftermath will emerge at a coronial inquest, scheduled for three months from September. 

This article was first published in the print edition of The Saturday Paper on March 19, 2022 as "The killing of Kumanjayi Walker".

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Russell Marks is an adjunct research fellow at La Trobe University and works as a criminal defence lawyer in the Northern Territory.

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