The coroner presiding over the inquest into the shooting death of Kumanjayi Walker will decide before the end of the week whether to recuse herself from the case after an application by the former Northern Territory police officer Zachary Rolfe.
Regardless of the outcome of the application, it is likely the already backlogged inquest will be further delayed, pushing back the prospect of Rolfe being forced to give evidence next week.
Guardian Australia revealed last Monday that Rolfe had applied for the NT coroner, Elisabeth Armitage, to recuse herself from the Walker case, another remarkable development in an inquest that had been expected to take three months but has dragged on for more than a year.
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 argue 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 submissions, lawyers for Rolfe argue 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, that the coroner may have had her face painted by Walker’s mother and that Dwyer held the hand of an elder.
Rolfe also argued that the lifting of a suppression order earlier in the year had assisted in a push for the NT police to dismiss the constable from the force. Rolfe was later dismissed but because of an open letter he published and not because of material released after the amendment of the order.
His application is joined by several other NT police officers but opposed by Walker’s family, the NT police and the Yuendumu community.
Multiple people familiar with the application who spoke with Guardian Australia said it was expected that Rolfe would appeal against the decision to the supreme court if Armitage did not recuse herself.
If Armitage did agree to recuse herself, then it would be unlikely a new coroner could be allocated the case before Monday, meaning that either decision is likely to result in further delays in the case.
It is understood Rolfe was scheduled to give evidence for four days starting next Tuesday, with Sgt Lee Bauwens expected to give evidence on Monday. Bauwens is one of three officers who joined Rolfe’s recusal application.
Rolfe had unsuccessfully applied to the NT court of appeal in an attempt to avoid giving evidence in the inquest.
In documents released by the NT coroner’s court on Friday, Ian Freckelton KC and Amanda Burnnard, on behalf of NT police, submitted that Rolfe and Bauwens had filed the recusal application to further curtail the inquest.
“The current application, invitation and objection appear to constitute a further attempt on behalf of Mr Rolfe (and Sgt Bauwens) to distract from and delay the inquest process,” police said in the submissions.
“They could be seen as the adoption of another forensic tactic and should be found to be without merit.
“The inquest should proceed without further distraction in relation to peripheral and groundless aggrievements so that it can be brought to a conclusion without additional delay, trauma for the family members of Kumanjayi Walker and expense for the Northern Territory.”
Julian McMahon and Conor O’Bryan, on behalf of the Parumpurru committee of the Yuendumu community, said that it could not seriously be suggested that simple gestures such as holding hands or receiving a traditional welcome were relevant to a recusal application.
“Far from being a cause for concern, the conduct of the coroner in visiting Yuendumu is exemplary of how a remote Aboriginal community should be engaged following the death of an Aboriginal person in custody,” the committee’s submissions said.
“The death of Kumanjayi Walker occurred in a complex cultural setting, leaving a community in grief, anger and bewilderment.
“The actions of the coroner in respectfully visiting Yuendumu to listen to Warlpiri people talk to their culture is of great utility. The actions of the coroner and counsel assisting were nuanced, culturally informed and courteous.”
Lawyers for Rolfe are expected to respond to the submissions on Tuesday.
