Northern Territory police constable Zachary Rolfe was investigated for perjury after a judge said he had lied about his actions during the violent arrest of an Aboriginal man in Alice Springs, newly released court documents show.
But police found there was insufficient evidence to charge Rolfe and another officer with perjury in relation to evidence they gave about the 2018 arrest of Malcolm Ryder.
On 11 March, a jury unanimously found Rolfe not guilty of the murder of Kumanjayi Walker, and of two alternative charges, in relation to a shooting at the remote community of Yuendumu in November 2019.
His defence team successfully argued prior to his trial that allegations about his conduct during other arrests was not admissible as evidence, in part because no findings of wrongdoing had been made against Rolfe and the judge found they were not relevant to the shooting. David Edwardson QC, for Rolfe, said in a court hearing regarding the evidence that his client had been cleared by his supervisors of using inappropriate force.
Following Rolfe’s acquittal the court lifted suppression orders and released hundreds of pages of documents relating to the pre-trial application, including the Ryder case.
Ryder was charged with hindering Rolfe in executing his duties as a police officer and unlawfully assaulting Rolfe after an incident at Ryder’s house in Alice Springs.
But a judge in the Northern Territory local court dismissed the charges against Ryder and found his version of events – that Rolfe had punched him in the face and then slammed his head into the ground, leaving him unconscious and in a pool of blood during the arrest – was the “more likely” version of how the injuries occurred than the evidence provided by Rolfe.
Internal police documents also reveal that even though a subsequent investigation found insufficient evidence for a criminal prosecution for perjury over Rolfe’s evidence in Ryder, it was recommended his conduct be reviewed by professional standards command, the NT police division which investigates disciplinary breaches and unprofessional behaviour. The documents do not indicate whether this was done or whether any further action was taken.
The documents also reveal that four officers who were involved in the Ryder arrest but were not under investigation declined to provide further statutory declarations to the detective investigating Rolfe for possible perjury, after the officers sought advice from the Northern Territory police association.
At Ryder’s trial in the Alice Springs local court, the court heard Rolfe and five other officers had attended Ryder’s house after a report of a disturbance and sought to arrest his stepson. Ryder was alleged to have interfered in this attempt by attacking police. The stepson was not charged with any offence.
But in May 2019, Judge Greg Borchers found Ryder not guilty, and strongly criticised Rolfe’s evidence in the case, including claims that Ryder had thrown punches, as “unreliable”.
The newly released documents show that in 2019, officers investigating the matter sent files to another police department seeking advice on the prospects of a perjury prosecution.
But the internal communication showed NT superintendent Richard Bryson, from judicial operations, advised the officer investigating Rolfe and another officer involved that “in my view it is unhelpful to present the files at their current standard” to the director of public prosecutions.
He said: “What is more important here is the member’s knowledge and motivation for saying ‘A’ in circumstances where the true situation appears to have been ‘B’.
“We don’t know anything about that knowledge or motivation because the members have never been asked since the incident in question almost two years ago.”
Bryson continued that it appeared “undue reliance” was being placed on the judge’s comments, when there was no evidence before him that Rolfe or another officer lied or fabricated evidence.
“My reading of the material on file more properly demonstrates that the members actions as being unprofessional, not criminal,” Bryson wrote.
“The members at the time were extremely junior and inexperienced … the material demonstrates that the members don’t know their powers, their evidence was poorly given, and they do not appear to have been properly briefed by the prosecutor.
“All of which appears to have led to the inevitable outcome.”
Bryson makes clear more work needs to be done, saying the files “demonstrate little in the way of actual investigation” or “cogent admissible evidence”.
“The resources of this office and that of the DPP to provide considered opinions are finite and should not be wasted reviewing material that clearly is short of the benchmark.”
On 21 February 2020, an investigator sent a further memorandum to the superintendent of the crime division, outlining additional steps taken to progress the investigation since Bryson provided his opinion. The memorandum makes clear that despite the investigator gathering further information there was not enough evidence for Rolfe or the other officer to be charged.
He says that investigators had obtained more information, and sought further statutory declarations from four officers involved in the Ryder arrest, who “declined to provide them after seeking advice from NTPA”.
Police also sought a statutory declaration from Borchers, but he declined this request, telling police to refer to the transcript of his decision.
He said Rolfe was not asked to be interviewed.
“The file is not able to progress to a standard beyond its initial submission … no significant discrepancy between the testimonies of the police has been identified,” the investigator wrote.
“There remains no reasonable prospect of conviction.”
But he said material gathered during the investigation gave “rise to potential disciplinary breaches and unprofessional behaviour” and he therefore recommended the file be sent to professional standards command for review. The documents do not indicate if this occurred.
