Constable Zachary Rolfe has launched a legal bid to limit the scope of questions he can be asked when he gives evidence at the coronial inquest into the death of Kumanjayi Walker next week, Supreme Court documents show.
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.
His lawyers have filed papers in the court, seeking to join an earlier application by another officer, which argues police should not be forced to answer questions which could lead to disciplinary action against them by their employer.
The Northern Territory coroner is currently presiding over a months-long inquest into the death of Mr Walker, after he was shot by Constable Rolfe during a 2019 arrest attempt in the remote community of Yuendumu, 300 kilometres north-west of Alice Springs.
Constable Rolfe was earlier this year unanimously found not guilty of any offence related to the shooting, after a five-week Supreme Court trial.
He is currently scheduled to give evidence to the coronial inquest on Wednesday.
In coronial proceedings, the coroner has the power to issue a certificate to witnesses which protects them from incrimination as a result of their evidence.
It is designed to allow witnesses to answer questions without fear of legal repercussions, and to ensure the coroner hears all relevant information.
If Constable Rolfe is granted permission to join fellow officer Sergeant Lee Bauwens's application in the Supreme Court, their lawyers are expected to argue that the certificate does not protect them from internal disciplinary matters.
Supreme Court documents filed by lawyers for Sergeant Bauwens late last month state he – and now, Constable Rolfe – want the Supreme Court to declare "a Coroner does not have power … to compel a person to answer a question, notwithstanding a claim of common law penalty privilege".
The coronial inquest has previously heard Sergeant Bauwens, the former officer in charge of the specialist Immediate Response Team, is alleged to have used "filthy, racist terms" in a text exchange with Constable Rolfe.
Sergeant Bauwens was scheduled to give evidence to the inquest in October but was granted a temporary injunction by Justice Sonia Brownhill, which meant he could not be called "to answer questions on matters that could give rise to a claim for penalty privilege" until after the issue was resolved.
Justice Brownhill will hear the arguments on November 22.
It is unclear whether Constable Rolfe's evidence to the inquest, currently expected to be given before that, will be impacted by the Supreme Court proceedings.
Coroner Elisabeth Armitage had earlier ruled, in relation to another police sergeant, Paul Kirkby, there was a "real public interest" in him being compelled to answer questions and subsequently provided him with the certificate.
"I accept that there is a real possibility that disciplinary action could be taken against [Sergeant Kirkby] … if he is compelled to answer the questions," Judge Armitage wrote.
"While I consider that [a certificate] would provide a very broad immunity, I also acknowledge … that there may be some disciplinary contexts in which [his] evidence could still be used as 'evidence' against him."
Attorney-General, Police and NAAJA also seek to be included
Documents filed in the Supreme Court also show the NT attorney-general will intervene in the judicial review, along with the NT Police Force and the North Australian Aboriginal Justice Agency (NAAJA).
The NT Police Force and NAAJA are also parties to the ongoing coronial inquest.
Their roles in the Supreme Court proceedings are unclear.
The attorney-general, under NT legislation, has the right to intervene in any court proceedings that relate to the interpretation of NT law or when the judicial powers of a court are in question.
The coronial inquest into the death of Mr Walker will resume next week in Yuendumu and Alice Springs.
