The judge presiding over the murder trial of Northern Territory constable Zachary Rolfe has urged the jury to ignore emotion or sympathy that may have arisen during confronting evidence in the case when they consider their verdict.
Judge John Burns gave the jury his directions in the supreme court on Thursday. The jurors have now retired to consider their verdict after an almost five-week trial.
Rolfe, 30, has been charged with murder and alternative charges of manslaughter or engaging in a violent act causing death. The alternative charges are only considered by the jury in the event that Rolfe is found not guilty of the more serious charges.
The court has heard Rolfe shot Kumanjayi Walker, a 19-year-old Warlpiri man, while trying to arrest him in the remote community of Yuendumu, about 300km from Alice Springs, on 9 November 2019.
Walker stabbed Rolfe with scissors prior to the first shot being fired. This shot was not subject to any charges.
But the court heard that 2.6 seconds after the first shot, Rolfe fired again, and then 0.5 seconds later he fired a third time. These final two shots were fired from close range at a time when Rolfe’s partner, then constable Adam Eberl, was attempting to restrain Walker on a mattress. The prosecution alleges Walker no longer posed a threat to Rolfe or Eberl at that stage. The defence says Rolfe acted reasonably to protect against the threat to himself and Eberl, who Rolfe says he believed Walker was attempting to stab.
Burns told the jury that although the confronting nature of the evidence in the case could arouse strong emotions, they should “guard against” that.
“You must not let emotion or sympathy affect your verdicts,” he said.
Burns told the jury that the prosecution had to prove beyond reasonable doubt that Rolfe did not hold an honest belief that it was necessary for him to fire the second and third shots in order to protect Eberl, and that firing the shots was not a reasonable response in the circumstances, as Rolfe perceived them.
Burns said the prosecution must prove beyond reasonable doubt that firing the shots was unreasonable, in the circumstances as Rolfe perceived them to be, for Rolfe to perform his duty as a police officer.
The crown must also prove that Rolfe did not honestly believe, when he fired the second and third shots, that this was reasonably necessary to perform his duty or function as a police officer.
Burns said that if the jurors were not convinced about the prosecution’s case in relation to any of these defences, they must find Rolfe not guilty of all charges.
To reiterate this, he drew the jury’s attention to comments made by prosecutor Philip Strickland SC on Wednesday that if they believed Rolfe’s evidence that he had perceived Walker to be stabbing Eberl at the time of the shooting, they must find him not guilty.
Burns said it was important for them to understand the distinction between perception of events and reality in hindsight.
To demonstrate this, Burns provided an example of a police officer who shot a bank robber after seeing them threatening a teller with a gun, only to discover after the shooting that the robber was armed with a replica firearm. As the police officer perceived the gun to be real when he shot the bank robber, he would be protected from criminal prosecution, Burns said.
“The important question may well turn out to be what was the perception, rather than the reality,” he said.
Burns also reiterated that despite the extensive evidence about Rolfe’s training and the events leading up to the shooting, he was charged with criminal offences, not a police regulatory offence about failing to follow orders or not acting in accordance with his training.
He also said that despite the jury having seen extensive footage of the shooting they should “guard against” considering it as an event broken down into tenths or one-hundredths of a second, rather than as a “single extremely brief and violent incident”.
The jury foreperson informed the court late on Thursday that they had yet to reach a verdict and would end deliberations until Friday morning. The foreperson also requested that a transcript of Burns’ directions be provided to jury members.
The foreperson said earlier on Thursday that if they had not reached a verdict by Friday they did not intend to deliberate over the weekend but would resume on Monday.
