The coroner presiding over the inquest into the shooting death of Kumanjayi Walker has declined to recuse herself from the case after an application was made by former Northern Territory police officer Zachary Rolfe.
Two weeks before the inquest into the death was set to resume on Monday 23 October, Rolfe applied for coroner Elisabeth Armitage to recuse herself on the grounds of apprehended bias.
Rolfe shot Walker dead during a bungled arrest in the remote community of Yuendumu in November 2019. He was later charged with murder but found not guilty.
According to documents released by the court, lawyers for Rolfe argued that Armitage should recuse herself from the hearing because of how she and the counsel assisting, Peggy Dwyer, conducted themselves during a meeting with community members in Yuendumu, and because of a decision to revoke a non-publication order without consulting other parties.
In Armitage’s ruling, delivered on Wednesday evening, she wrote “I decline to recuse myself from proceeding with the inquest”.
“Having carefully considered Mr Rolfe’s application for recusal, for the reasons that follow: I am not persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues arising under the Act.”
In submissions, lawyers for Rolfe argued that Armitage may not be able to be impartial because of the visit, including because Dwyer did not object when Warlpiri elders mentioned spearing Rolfe as punishment for the shooting, and that Dwyer held the hand of an elder and the coroner may have had her face painted by Walker’s mother.
Armitage wrote: “I do not accept that the mere fact that community members expressed their views about such matters, in my presence, might cause a fair-minded lay observer to reasonably apprehend that I might not impartially determine the issues arising at the inquest.
“A fair-minded lay observer would understand that it is normal, especially for a person with judicial training, to listen to someone express grief, or anger, without being ‘overborne’ by those expressions.”
Armitage wrote that multiple parties were critical of Rolfe for bringing his application shortly before the recommencement of the inquest when it had the potential to result in the sittings being vacated.
“The delay was objectionable because most of Mr Rolfe’s complaints concerned matters that had occurred months before the application was made,” Armitage wrote.
The NT police force submitted that the application “appear[s] to constitute a further attempt on behalf of Mr Rolfe … to distract from and delay the inquest process”.
The police submission said the application was brought “immediately before” Rolfe was scheduled to give evidence on 23 October, after having already made an unsuccesful bid to avoid giving evidence.
Armitage wrote that the Walker, Lane and Robertson families submitted that it was “difficult to see [the application] as anything other than strategic” and their position was that the application should be dismissed on its merits.
Rolfe submitted in reply that the criticisms were “unjustified”, and that his application was “premised upon a cumulative sequence of events concerning the conduct of this inquest.”
