Lawyers for the Northern Territory attorney-general and police force will urge the NT Court of Appeal to force Constable Zachary Rolfe to front the inquest into the death of Kumanjayi Walker, with a certificate protecting him against self-incrimination.
Constable Zachary Rolfe shot and killed 19-year-old Warlpiri-Luritja man Kumanjayi Walker during an attempted arrest at the remote community of Yuendumu in 2019.
A jury last year found him not guilty of murder, manslaughter and engaging in a violent act causing death, after a five-week Supreme Court trial.
Northern Territory Coroner Elisabeth Armitage is presiding over a lengthy coronial inquest into the shooting, which heard three months of evidence in Alice Springs last year, and is scheduled to resume next month.
Constable Rolfe was called briefly to the stand in November last year, but refused to answer a series of questions about fourteen topics, including his text messages and the events of the night of the shooting.
The officer claimed penalty privilege, arguing police could not be forced to answer questions which could result in an internal "penalty", or disciplinary action, being taken against them at work.
Judge Armitage had earlier ruled police could be compelled to take the stand and be given an immunity certificate, that protects inquest witnesses from incriminating themselves with their evidence.
But Constable Rolfe and his lawyers appealed against the decision in the Supreme Court, where Justice Judith Kelly ultimately ruled his argument was "untenable".
Justice Kelly found penalty privilege did not exist in the context of a coronial inquest, not only ruling that Constable Rolfe could be forced to answer questions, but he was not entitled to a protective certificate at all.
The officer has since launched an appeal, claiming Justice Kelly "erred" in her judgement, and that the coroner "cannot direct or compel the appellant" to answer questions where answers "would tend to expose the appellant to a penalty".
Appeal dates to be set this week
The Northern Territory Court of Appeal has not yet set a date to hear Constable Rolfe's appeal, but lawyers for Attorney-General Chansey Paech and the NT Police Force have now filed their arguments with the court.
Documents obtained by the ABC show the NT Police Force and attorney-general will argue that the coroner's initial ruling should be upheld, with police claiming the Coroner's Act "clearly abrogate[s] the penalty privilege."
"In respect of any questions the answers to which would tend to subject or expose the appellant to a penalty (within the meaning of the privilege against exposure to a penalty) the coroner may require the appellant to answer the questions subject to the terms of section 38 of the [coroner's] act, including the provision of a certificate," said the NT Police Force's Notice of Contention document.
Lawyers for the NT attorney-general filed similar documents, indicating they will argue it would be "preferable" for the Coroner's Act to be interpreted in a way which would compel witnesses to give evidence with the protection of a certificate.
A hearing on February 3 is expected to determine when the Court of Appeal will hear the arguments.
The coronial inquest is currently scheduled to resume for two weeks in Alice Springs on February 27, and Constable Rolfe was expected to be among the witnesses called to give evidence.
The ABC understands it is unlikely the officer will return to the witness box next month if appeal proceedings are still underway.
