The fight to limit the questions Constable Zachary Rolfe and other police officers can be asked at the coronial inquest into the death of Kumanjayi Walker has been heard in the Northern Territory Supreme Court.
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.
Over two days, lawyers for Constable Rolfe joined those for Sergeant Lee Bauwens in a complicated judicial review of a decision handed down by NT Coroner Elisabeth Armitage earlier this month.
The officers argued they should not be compelled to answer questions that could lead to disciplinary action within the police force.
Judge Armitage is currently presiding over a months-long inquest into the shooting death of 19-year-old Kumanjayi Walker, who died in 2019 after he was shot by Constable Rolfe during an attempted arrest in Yuendumu.
Constable Rolfe was earlier this year found not guilty of any criminal charges related to the death and was last week briefly called to give evidence to the inquest.
After less than an hour in the witness box, he claimed a "penalty privilege" and refused to answer further questions which could have exposed him to a penalty.
His objection covered questions about 14 topics, including text messages, his application to the NT Police Force, use of force incidents and the events of the day Kumanjayi Walker died.
Judge Armitage previously ruled, in relation to another police officer, Sergeant Paul Kirkby, that she could provide him with a certificate protecting him from self-incrimination as a result of anything he said in the witness box.
Lawyers for both Constable Rolfe and Sergeant Bauwens told the court a certificate would not protect the officers from internal disciplinary action, arguing the relevant section of the Coroner's Act was ambiguous when it came it the claim of penalty privilege.
"It is an aspect of the operation of judicial officers administering oaths and sitting as courts that these privileges will be respected. We say it's a common law right, even if it's not a substantive law right that operates outside that context," said Ben Doyle KC, for Constable Rolfe.
Both Constable Rolfe and Sergeant Bauwens have, the coroner has heard, been implicated in a series of text exchanges downloaded from Constable Rolfe's phone, which used racist language.
They have asked Justice Judith Kelly to declare "a coroner does not have power … to compel a person to answer a question, notwithstanding a claim of common law penalty privilege".
Attorney-General, police, NAAJA and Mr Walker's family argue against
Lawyers for the Northern Territory Police, NT Attorney-General, the North Australian Aboriginal Justice Agency and family members of Mr Walker made separate arguments to the judge, ultimately urging her to make an order which would, essentially, compel Constable Rolfe and Sergeant Bauwens to answer questions.
"It is extremely important for coronial proceedings in the territory, that … penalty privilege be regarded as having a comparable status into the privilege against self-incrimination, with the outcome that the coroner can direct a person … to answer questions, where it is expedient in the interest of justice," said Ian Freckleton AO KC, for the NT Police Force.
"There is a high public purpose in enabling and ensuring that coronial proceedings accomplish their objective of finding facts and enabling recommendations and comments in the interest of public safety and the administration of justice."
Dr Freckleton told the court the certificate available to witnesses in a coronial inquest gave them a "very broad protection" to enable coroners to hear all relevant evidence.
"For the truth to be arrived at by a coroner, they need to be able to receive as much evidence as possible from doctors, from correctional officers, from paramedics, and relevantly, from police officers," Dr Freckleton said.
Justice Judith Kelly is expected to hand down her ruling within two weeks.
The inquest will resume hearing from witnesses tomorrow before the current block of sittings finishes in early December.
It is scheduled for further hearings in February 2023, when Constable Rolfe is expected to return to give evidence.
