Constable Zachary Rolfe had the “state of mind” and “mentality” to arrest Kumanjayi Walker and shoot him if he resisted, and then lied about it to “justify the unjustifiable”, a prosecutor has told a Northern Territory jury.
The prosecution began closing its case against Rolfe on Tuesday, as his murder trial in the NT supreme court entered its fifth week. It came as a second juror was discharged, meaning both reserve jurors have now been engaged.
Rolfe is charged with murdering Walker, a 19-year-old Warlpiri man, on 9 November 2019.
The court has heard he shot Walker three times while trying to arrest him in the remote community of Yuendumu, about 300km from Alice Springs.
Walker stabbed Rolfe with a pair of scissors shortly before the first shot was fired. Rolfe is not charged in relation to this shot.
He is charged with murder and two alternate charges in relation to the second and third shots fired at Walker.
Rolfe has pleaded not guilty, and his lawyers have argued his actions on the day were justified in light of the risk Walker posed to him and a colleague, the then-constable Adam Eberl.
In his closing address, prosecutor Philip Strickland SC said that Rolfe’s career had demonstrated “an obvious desire to becoming involved in direct action”. That includes his five-year stint in the army, a five-month course with a private security company in the US, his application to join the Special Air Service Regiment, and his additional training with the NT police’s immediate response team, Strickland said.
Strickland said the jury should consider the context to Rolfe confronting Walker in a Yuendumu property known as House 511.
He said this included his “preoccupation” with an incident three days earlier, when Walker threatened two police officers with an axe at a separate Yuendumu property known as House 577, as well as his “keenness” to be deployed to Yuendumu, his “insistence” upon leaving the Yuendumu police station to immediately track down Walker, and the “manner” and “state of readiness” in which he searched House 577 minutes before the shooting.
“All of those matters, we say, are evidence of a particular state of mind,” Strickland said.
“They’re all evidence of a mentality the accused had at that time and that mentality was that if Kumanjayi Walker showed any resistance, if he presented with an edged weapon, he would be prepared to draw his weapon, and if necessary fire it at Kumanjayi Walker.”
Strickland said the jury should find that evidence Rolfe gave to the court last week – that he had seen Eberl being stabbed by Walker and feared for his partner’s life – were lies that he made up to “justify the unjustifiable”.
He also told the jury not to rely on other parts of Rolfe’s evidence. He said evidence Rolfe gave about asking for another local officer to accompany them on patrol in Yuendumu on the night of the shooting had not been corroborated by any other officer in the room.
Strickland said they should consider with some “scepticism” evidence Rolfe gave about only being shown one corner of a document referred to as the operational plan.
And he said the jury could “treat with a large grain of salt” Rolfe’s evidence that he had two chains of command on 7 November 2019, when he informed multiple officers about the axe incident in Yuendumu the previous day.
‘Ludicrous’ to suggest Rolfe should’ve subdued Walker with his hands, ex-officer says
Earlier on Tuesday, a former senior police officer told the court it was “ludicrous” to suggest Rolfe should have used his hands to contain Walker.
Former police officer Ben McDevitt told the court that Rolfe had not acted inconsistently with his training in the shooting of Walker.
McDevitt, a former Australian federal police assistant commissioner who told the court he was a semi-retired consultant with a 38-year career in police and law enforcement agencies, was called as a witness in Rolfe’s defence.
He was the last witness in the trial.
David Edwardson QC, for Rolfe, asked McDevitt multiple questions about how his opinion of the shooting differed from that of Det Sr Sgt Andrew Barram, a senior NT police officer who appeared for the prosecution earlier in the trial.
Barram, who held senior positions in relation to the training of NT officers, previously told the court it was reasonable for Rolfe to fire the first shot, as it had occurred while Eberl and Walker were both on their feet and struggling.
But Barram said the final two shots were not reasonable, as the situation between Eberl and Walker had changed “substantially”.
“They had gone from a standing position in a fairly equal fight, to being on the ground … and constable Eberl pinning Mr Walker down,” he said.
On Tuesday, McDevitt described Barram’s evidence as “just an extraordinary assertion”.
“It’s a ludicrous proposition,” he told the trial.
“It’s patently wrong. It goes against the very training … that apparently Sgt Barram has given to so many officers.
“In my view once the struggle went from a standing struggle to the ground it became a far more dangerous and dire situation for constable Eberl.”
McDevitt said that training included that an officer was permitted to use their firearm when an offender posed a threat to them or a colleague with an edged weapon.
Barram said in his evidence that, given the position of Eberl in relation to Walker at the time the second and third shots were fired, Rolfe should have used “open hand” tactics to assist in controlling him.
McDevitt said: “Again … it’s a ludicrous statement and it’s just not in accordance with the training or the use of force model. I just don’t understand it.”
He said the tactical options model on which Barram had based some of his opinions was “heavily influenced” by a model he had developed for the federal police.
But he agreed with Strickland that he had never trained NT police officers nor had any knowledge of policing in remote Aboriginal communities.
McDevitt disagreed with Strickland’s suggestion that Rolfe had acted against his training during the shooting, but agreed Rolfe and Eberl had not been “tactically perfect” when they decided to enter the Yuendumu property known as House 511, where the incident occurred.
He said having an agreed plan of action before entering House 511 would have been preferable.
Judge John Burns discharged another jury member in the case. He had been informed that a family member of the juror had contracted Covid-19.
Burns said that although the juror had done the right thing and tested negative on multiple rapid antigen tests, the court could not accept the “even small risk” that they could infect other members of the jury.
It is the second time a jury member has been discharged in the case, and both reserve jurors have now been used.
Strickland’s closing address will continue on Wednesday.
