August 19, 2021

Indigenous Australia

A question of good faith: The trial of Zachary Rolfe

By Russell Marks
Image of Constable Zachary Rolfe. Image via Facebook

Constable Zachary Rolfe. Image via Facebook

The alleged murder of Kumanjayi Walker by a police officer has ignited a legal quandary

The trial of the decade – that of Constable Zachary Rolfe, charged with murdering a young Aboriginal man in Yuendumu – will go ahead, with Rolfe protected, perhaps uniquely, by the Supreme Court’s interpretation of a new Northern Territory law. The Crown wants to appeal that interpretation to the High Court. But the Supreme Court today denied it the time to allow that to happen. If the High Court ever does look at it, Rolfe might already be acquitted. At issue here is a legal question that strikes at the core of our society and our history: can police officers kill with practical impunity?

On November 9, 2019, Rolfe and his colleague, Constable Adam Eberl, went inside the Walker family’s house in Yuendumu, a Warlpiri community to the northwest of Alice Springs, looking for a 19-year-old man now known as Kumanjayi. He was on a suspended prison sentence, originally imposed for several offences (including assaulting police), and their job was to arrest him for breaching it by leaving residential rehabilitation too early. Three days earlier he’d also come at local police officers with an axe, which had prompted a new assaulting police charge. When the two officers found Kumanjayi in a bedroom of the house, he is said to have stabbed Rolfe as he and Eberl tried to make an arrest. Rolfe shot Kumanjayi in the torso. Rolfe says Kumanjayi then tried to stab Eberl, so Rolfe shot Kumanjayi twice more. Even then, Eberl has since said in court, Kumanjayi continued to resist. But two hours later he was dead, and Rolfe was charged with murder within days. He has since been additionally charged with manslaughter and “dangerous act causing death”. Prosecutors say the officers ignored an arrest plan that had been carefully put together by the sergeant in charge of the Yuendumu police station, a plan that involved Kumanjayi’s family and respected their obligations to attend a funeral that afternoon.

The police union immediately condemned the murder charge, and one disgusted officer reportedly emailed the entire Territory police force under the subject “#Bluelivesmatter”. Rolfe was granted bail by a Territory judge in an equally rare out-of-court hearing and was allowed to return to Canberra, where his parents live. Rolfe’s trial is now a proxy for Australia’s expression of the Black Lives Matter movement. For that movement, and for many others who sympathise with the multitude of ways settler criminal law has failed Aboriginal people, the prospect that a police officer can shoot a 19-year-old Aboriginal man at point-blank range three times in his own bedroom and escape conviction is almost too terrible to contemplate.

In the sweep of Australia’s settler-colonial history, to say that it is rare for a police officer to be charged with the murder of an Aboriginal suspect would be to significantly understate the true position. Police officers were routinely used as colonial enforcers, especially on the expanding frontier. On the 50th anniversary of Arthur Phillip’s raising of the Union flag at Sydney Cove, a posse of police troops opened fire on a group of trapped Aboriginal people at Waterloo Creek in New South Wales and hacked with their swords those who tried to flee. The posse then pursued survivors into other camps and massacred whoever they found. They admitted to killing 40 Aboriginal “warriors”, though the actual death toll is conceivably much higher. Despite concern from the Colonial Office in England and an official inquiry the following year, no charges were ever laid.

The pattern was set early, and it keeps repeating. In September 1983, a 16-year-old Yindjibarndi boy, John Pat, was found dead in a police cell in Roebourne, a former gold rush town in the Pilbara. A coroner confirmed he’d most likely died from his traumatic head injuries. Off-duty officers had assaulted him outside the town’s pub. One may have kicked him in the head. When he was thrown into a police van, “like a kangaroo” said a witness, his head probably connected with it. At the police station, he fell onto concrete before being dragged into a cell. Witnesses said police systematically beat John and other prisoners. He was unconscious, but police said later they thought he was just pretending to sleep. The officers refused to give evidence at the inquest. They were all charged with manslaughter, but an all-white jury acquitted them. Pat’s violent death was one of those that led to Bob Hawke’s government calling a Royal Commission into Aboriginal Deaths in Custody.

In October 2002, an acting sergeant, Robert Whittington, shot 18-year-old Robert Jongmin in Wadeye, in the Northern Territory. Jongmin had heroically tried to disarm another young man who’d been aiming a rifle at a crowded oval. Whittington’s bullet hit Jongmin in his back, fracturing his fifth rib on his right side. It travelled upwards through his right lung, then hit his windpipe before emerging from the left side of his neck, just below his jaw. For the bullet to have left Whittington’s gun, passed through Jongmin’s body in the way that it did, and to have then entered a bedroom in a house behind him (where it was later found), forensic evidence showed Jongmin was most likely – as the coroner later put it – “running towards the house crouching or bending down in order to try to avoid being shot at”. Following an investigation, Whittington was charged with murder, which was later downgraded to “dangerous act causing death”. But he was charged too late. Territory law at the time required that police officers had to be charged with a crime within just two months of committing it, or not at all. (For everyone else, there was – and is – no time limitation for serious charges such as murder.) The Supreme Court threw out the charges against Whittington.

Perhaps the most notorious of these cases, owing to Chloe Hooper’s remarkable book The Tall Man, is the violent death of 36-year-old Cameron Doomadgee in a Palm Island cell in November 2004. Doomadgee had been arrested, allegedly for causing a public nuisance. An hour later he was dead, the autopsy revealing four broken ribs and ruptures to his liver, spleen and portal vein. Senior Sergeant Chris Hurley was arrested and prosecuted for assault and manslaughter. An all-white jury found him not guilty.

No police officer has ever been found guilty in a criminal court for unlawfully killing an Aboriginal person in Australia. Zachary Rolfe’s trial had originally been listed for July this year, but a brief COVID-19 lockdown in the Territory delayed it until this week. Five of the Territory’s Supreme Court judges last week gave answers to an important set of legal questions about various provisions of the Territory’s laws, and about how exactly the trial judge should instruct the jury after it hears the evidence at the trial. Those answers seem to favour Rolfe’s defence. The Crown wants to appeal the judges’ answers to the High Court. Acting Justice Dean Mildren of the Supreme Court – who was one of the five judges who participated in the Full Court’s decision – today denied it the time to do so. That raises the prospect that Rolfe’s trial may go ahead on an interpretation of the law which may be incorrect. The Crown knows it won’t be able to appeal the jury’s decision to acquit Rolfe.

The legal questions considered by the Supreme Court judges are complicated, but essentially they’re about how three different Territory laws interact with each other. Depending on the evidence that’s presented to the jury during the trial, each of those three laws might work to provide Rolfe with a defence to his charges. 

The first of those laws is well-known: the law of self-defence. If the evidence shows that Rolfe both believed it was necessary to shoot Kumanjayi (either in self-defence or to defend Eberl) and that shooting Kumanjayi was a “reasonable response” in the circumstances as Rolfe perceived them, then the jury should acquit him. The problem for Rolfe is that there were (at least) two officers present, and Kumanjayi’s weapon was a pair of scissors. The asymmetrical nature of the weapons has shades of the use of guns by colonisers against the spears of Aboriginal nations. Judges, juries and prosecutors of the 19th century regularly accepted the self-defence arguments put forward by settlers – including police – even where they’d massacred large numbers of Aboriginal people. In our century, is gunfire a “reasonable response” to scissors?

In case it isn’t, there’s a second law that might protect Rolfe. It establishes that, even in circumstances where you or I might be convicted of murder or manslaughter, a serving police officer can’t be, if he is “acting in the course of his or her duty as a police officer”, and his conduct is objectively “reasonable in the circumstances for performing that duty”. Police are tasked with performing numerous duties. Relevantly to Rolfe’s trial, those duties include arresting criminal suspects, upholding the law, preventing crimes and protecting life. Even if the jury can’t quite squeeze Rolfe’s three point-blank shots into the law of self-defence, it might be persuaded that shooting Kumanjayi was “reasonable in the circumstances” for Rolfe to arrest him, to prevent him from committing a crime and/or to save Eberl’s life. Or it might not.

The third law is the most controversial. Since September 2018, police officers in the Territory have had what appears to be a new defence available to them: if an officer is at least “purporting” to exercise a power (such as the power of arrest) or to perform a police function (such as preventing a crime, or saving a life), then he only needs to show that he acted “in good faith” to be forgiven for any crime. “Good faith” appears to establish an entirely subjective defence. So even if Rolfe’s three point-blank shots were objectively unreasonable, the jury might be persuaded that he honestly believed he had to fire them.

In its present form, that third law – section 148B of the Territory’s Police Administration Act – had never been considered by a Supreme Court judge. Prosecutor Philip Strickland SC, a prominent Sydney barrister, argued that it shouldn’t be available in relation to Rolfe’s second and third shots – one of which killed Kumanjayi – because body-cam footage allegedly records Rolfe immediately justifying them on the basis that he believed he was defending Eberl. That, said Strickland, meant that Rolfe was no longer trying to arrest Kumanjayi, which meant that he was no longer “exercising a power” under the Police Administration Act. But Rolfe’s lawyer, David Edwardson QC, suggested that Rolfe’s evidence might be that he was doing a number of things at once. Perhaps he was saving Eberl’s life and preventing an assault and still trying to arrest Kumanjayi. All five Supreme Court judges agreed with Edwardson. In any case, they concluded, even if Rolfe had stopped trying to arrest Kumanjayi and was only trying to defend Eberl, that would still mean he was “performing a police function”. So, yes, he’d be entitled to rely on section 148B.

All five judges also agreed that each of the three potential defences operates independently: one doesn’t cancel out any other. So, for instance, prosecutors can’t argue that acting “in good faith” depends on him acting “reasonably”. The effect of the Full Court’s judgement is that even if the jury isn’t persuaded, on the evidence, that Rolfe acted in self-defence, or that three point-blank shots were “reasonable in the circumstances” in his performance of a police duty, the jury might still be persuaded that he honestly believed he needed to shoot Kumanjayi three times.  If the jury is also persuaded that he was doing something at least vaguely police-ish, it would be obliged to acquit – even if what Rolfe did satisfies the legal tests for murder or manslaughter.

A. A. Phillips, schoolteacher and critic, once identified an “Australian tradition” informed by democratic and egalitarian values. (He overlooked settlers’ relations with the First Nations.) But for those who subscribe to such values, and therefore expect that police are constrained by the law, the implications of the Full Court’s ruling are staggering. What’s to stop a police officer who shoots and kills a person in what are clearly unreasonable circumstances from simply claiming later that he honestly believed that it was necessary to do so? This is why objective tests – such as those contained in the first two laws outlined above – are so important. Police regularly say things in court which challenges objective reality. When 21-year-old Brazilian man Roberto Curti stole two packets of biscuits from a convenience store in Sydney’s CBD in March 2012, as many as a dozen police officers chased him, tackled him, handcuffed him and repeatedly drive-tasered him – an incredible 14 times – while he was laying on the ground. At the inquest, the officers gave evidence that they believed they were acting in accordance with their training, and that what they were doing was necessary. Had they relied on a law such as section 148B, that may have been enough to secure acquittals. (As it was, the four officers who were eventually charged – albeit merely with assault, not homicide – didn’t rely on the equivalent provision in NSW’s law. The three who had used tasers were all acquitted anyway. A fourth officer was found guilty of using too much capsicum spray, but escaped conviction.)

Police officers in other states have successfully invoked provisions equivalent to section 148B, however. In Adelaide, a police officer was tasked to attend a traffic complaint involving two motorcycles. He drove to the scene and pulled up very close to one of the motorcycles, he said, to prevent it from driving off. He thought he’d put the car into “park” but hadn’t. When he took his foot off the brake, the car moved forward. He went to slam the brakes, but hit the accelerator instead and ran over the motorcycle and its driver, causing serious injuries. Although accidental, this is classic “driving without due care”. The officer was charged and convicted. Despite “inconsistencies” between the officer’s evidence and that of witnesses, the Supreme Court overturned his conviction in 2019. Section 65 of South Australia’s Police Act says police aren’t criminally liable for anything they do, as long as they were at least purporting to exercise a police power or perform a police function, and were doing so honestly.

Surprisingly, the High Court has never considered these laws that grant police officers immunity to being prosecuted for what would otherwise be serious crimes. It won’t get an opportunity to do so before a jury decides Rolfe’s fate (unless the High Court takes the extraordinary step of halting a trial that has already begun: the Crown will seek an urgent stay application directly from the High Court tomorrow or Monday). The Territory’s Supreme Court is known to occasionally twist itself into logical knots to justify the unjustifiable: four of its judges famously found the gassing of four Aboriginal teenagers inside Don Dale’s Behavioural Management Unit in 2014 lawful before the High Court overruled them last year.

Boiled down, what the Territory’s Supreme Court mainly said was that it’s up to jury to decide, after seeing the evidence, whether Rolfe was acting reasonably when he fired the second and third shots – or, indeed, whether he was even purportedly exercising a police power, or acting in “good faith”. The High Court would generally be reluctant to interfere with that ruling.

At the committal, Eberl said he tackled Kumanjayi to the ground after Rolfe fired his first shot and tried to secure Kumanjayi’s right arm, which was holding the scissors. It’s at that point that Rolfe fired his second and third shots, which were fatal. If the objective evidence (such as the body-cam footage) suggests, for instance, that Rolfe was simply retaliating in anger after Kumanjayi stabbed him with scissors, the jury may yet decide that he wasn’t acting in “good faith”, despite what he says in evidence.

But can a murder ever be committed in “good faith”? The Full Court’s reasoning leaves open the possibility that the jury might acquit a police officer who killed a young Aboriginal man in what would otherwise be illegal circumstances. What if the evidence so clearly makes out a criminal homicide that the jury’s acquittal is itself unreasonable? That’s the kind of result a trial judge’s directions to a jury are generally meant to warn against. On the Full Court’s reasoning, the trial judge would leave all questions about “good faith” to the jury. The Crown wants the High Court to draw some boundaries around the “good faith” defence, so that it can’t be used if, for instance, the evidence in a particular case clearly establishes a vengeful murder. But if that’s to happen, it’s likely to be after Rolfe has been tried. If Role is acquitted, the Crown’s only option would be appeal the legal question in the abstract. Even if it wins, Rolfe would remain acquitted.

This is all conjecture. Zachary Rolfe will be tried on the allegation that he murdered 19-year-old Kumanjayi Walker by shooting him once, then twice more, inside Kumanjayi’s own bedroom in a Warlpiri community. Against settler Australia’s propensity to excuse police crimes, especially against Aboriginal people, that itself is radical. But laws such as section 148B make it much too likely that police who kill when they don’t need to will go unpunished by the criminal law. If there is an Australian tradition, it might be forgiving police crimes against Aboriginal people. Today, the Northern Territory Supreme Court found one more way to try to extend that tradition.


Note: Since this article was published, the High Court has granted a stay until at least September, so that it can decide whether or not to grant a prosecution application for special leave to appeal the Northern Territory Full Court’s judgement.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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