Constable Zachary Rolfe will be forced to front the coronial inquest into the death of Kumanjayi Walker, after the Supreme Court threw out his attempt to avoid a series of questions about the 2019 police shooting.
WARNING: Aboriginal and Torres Strait Islander readers are advised that this article contains an image of a person who has died, used with the permission of their family.
Northern Territory Coroner Elisabeth Armitage is currently presiding over a long-running inquest into the death of 19-year-old Kumanjayi Walker, which began in early September and is scheduled to recommence in February 2023.
Constable Rolfe was found not guilty of murder, manslaughter and engaging in a violent act causing death after a Supreme Court trial earlier this year.
Jurors heard he fired three shots at Mr Walker in self-defence, after Mr Walker stabbed him in the shoulder during an attempted arrest in Yuendumu, north-west of Alice Springs, in November 2019.
Constable Rolfe and his colleague Sergeant Lee Bauwens last month launched a complicated Supreme Court judicial review of a decision made by Coroner Armitage, arguing police officers shouldn't be compelled to answer questions that could result in disciplinary action within the force.
Justice Judith Kelly, who presided over two-days of legal argument about the statutory construction of the Coroner's Act, ruled their claim could lead to "an absurd result".
"The one construction I consider to be untenable is the one advocated by the plaintiffs. One cannot discern a legislative intention to partly abrogate the important and fundamental privilege and to leave intact the less important, but related penalty privilege," Justice Kelly wrote.
"That would be an absurd result."
Constable Rolfe was called briefly to give evidence at the inquest into the police shooting in Alice Springs last month, but claimed penalty privilege over a series of questions related to his personal text messages and use of force history.
He was excused from giving further evidence until after the Supreme Court decision was handed down.
Under Northern Territory legislation, the coroner has the power to issue a certificate to witnesses in a coronial inquest which protects them from incriminating themselves by honestly answering questions.
In her ruling, Justice Kelly said the certificate provision was introduced in 2002, after a "perception by the Coroner that the Coroner's ability to get to the truth was being hampered by the fact that witnesses were refusing to answer questions, claiming privilege against self-incrimination."
Penalty privilege not a 'fundamental common law right'
Judge Armitage earlier ruled police officers should be compelled to answer questions with the protection of the certificate, but lawyers for Constable Rolfe and Sergeant Bauwens argued the certificate wouldn't cover them for internal disciplinary matters, claiming penalty privilege.
Justice Kelly this week ruled a penalty privilege claim was not available to witnesses in the context of a coronial inquest, meaning the officers will likely be forced to give evidence without the protection of a certificate at all.
"Penalty privilege is not a fundamental common law right of the same nature as the privilege against self-incrimination or legal professional privilege," Justice Kelly wrote.
"In the case of police officers and other public officials, almost all criminal acts would also have the potential disciplinary consequences with the result that the coroner could almost never require police officers (and others) to answer such questions on the provision of a certificate."
Justice Kelly said the arguments put forward by Constable Rolfe and Sergeant Bauwens' lawyers would "subvert" the purpose of the relevant sections of the Coroner's Act.
"Given the expressed object of the Act to implement recommendations of the Royal Commission into Aboriginal Deaths in Custody, and the key role of police officers in such proceedings … and given the expressed object of the 2002 amendment to make it easier for the Coroner to ascertain the truth by limiting the ability of witnesses to refuse to answer questions, such an interpretation would not advance the objects of either the original Act or the 2002 amendment."
Justice Kelly also wrote that if, on appeal, she was found to be wrong in her judgement that penalty privilege did not exist, then Judge Armitage's original ruling should be upheld.
"On the assumption that penalty privilege did apply, it was abrogated by s38 [of the Coroner's Act] to the extent that the Coroner was empowered to require a person to answer, notwithstanding a valid claim to penalty privilege, on provision of a certificate under that section that had the protective effect," Justice Kelly wrote.
The inquest into the death of Kumanjayi Walker is scheduled to resume for two weeks in February 2023, when Constable Zachary Rolfe and Sergeant Lee Bauwens are expected to be called to give evidence.
Final submissions are scheduled to take place in April, before Judge Armitage considers her findings and recommendations.
If an appeal of Justice Kelly's ruling is launched, documents must be filed within 28 days.