A Lamentable ‘Tendency’ of NT Justice

Peter O’Brien

There has been another highly disturbing post-trial development in the saga of NT Police Constable Zachary Rolfe, acquitted for the murder of Kumanjayi Walker.  That’s strange, you might think, surely the trial is over and done?  Surely the juror decided a raging offender armed with a blade and an extensive history of violence represents a threat of the sort detailed in this video.  Not so, because the trial continues by other means. Let me explain, first by citing a story that appeared on Friday night on The Australian‘s homepage:

The jury in Zachary Rolfe’s murder trial was not told that in the lead up to Kumanjayi Walker’s death, the young Northern Territory policeman was involved in four other incidents of allegedly excessive use of force against Aboriginal arrest targets.

The twelve men and women who acquitted Constable Rolfe of murder were also not shown text messages in which he described Alice Springs as a “shithole” and “like the Wild West” with “f**k all rules in the job”.

Justice John Burns on Friday lifted all suppression orders relating to Constable Rolfe’s five-week NT Supreme Court trial. Defence lawyer David Edwardson QC called for prohibitions on publishing the so-called “tendency” evidence to remain to protect Constable Rolfe’s reputation. But Justice Burns said transparency was more important.

The decision clears the way for the public to learn the full scope of the argument crown prosecutors wanted to put to the jury. Prosecutor Philip Strickland SC wanted to argue Constable Rolfe displayed a pattern of behaviour in which he acted carelessly, allegedly used excessive force and then provided false statements to justify what he had done.

The article goes on to detail one allegedly discreditable incident:

In the most dramatic example, Constable Rolfe allegedly grabbed an Aboriginal suspect by the scruff of the neck, handcuffed him, hit him and “slung” his head against the ground, leaving him unconscious in a pool of blood for several minutes.

The court heard that afterwards, a female detective allegedly scratched Constable Rolfe’s face to give him a justification for what he had done. That evidence was supported by a statement from one of Rolfe’s former girlfriends, also a police officer.

A magistrate who considered the charges against the Aboriginal suspect, Malcolm Ryder, found him not guilty but concluded Constable Rolfe had deliberately assaulted Mr Ryder and then lied in evidence about what happened.

This incident, and others, may or may not have happened — and if they did, well to say they do not reflect well on Rolfe would be something of an understatement.  But that aside, what disturbs me about this is that these alleged incidents were deemed inadmissible to put before the jury during the trial itself for reasons well established in our system of jurisprudence.  They would probably be inadmissible in the case of any defendant. They would be doubly so in relation to a policeman, almost all of whom would have been involved in many violent incidents – it’s part of their job.  So why are they now being made public, by the prosecution, after the trial?

On Saturday morning, further was added to this story (emphasis added):

Constable Rolfe’s barrister, David Edwardson QC, argued successfully that the evidence was neither probative nor relevant. On Friday, he tried to persuade Justice John Burns it should remain secret, as the allegations were unsubstantiated and “no finding has been made against Mr Rolfe”. Justice Burns ruled “ensuring that the public has the means of scrutinising the decisions which have been made” was more important.

What is Justice Burns suggesting?   What decisions is he talking about?  Do these decisions include the verdict?  I suspect many people will read it that way.

Is he suggesting that the public now has a right to hear what the jury couldn’t, and make up its own mind?  That would be an extraordinary step. Or could it be the ‘decisions’ refers to the haste in which Rolfe was charged.  Is he suggesting that they mitigate the fault of the Police and DPP in this respect?  If that is what he believes, surely he could make the point to the coronial enquiry in his private capacity?  And if these incidents were to form part of this enquiry, why should they not remain sub judice for the time being?

I am not saying these incidents should be suppressed if, for example, an enterprising reporter had discovered them. But to have them released in this way – in the context of the trial – can clearly only have been designed for the prosecution to suggest: ‘Look we didn’t stuff up.  We were nobbled by a ruling that denied us crucial evidence which, had they known it, would have allowed the jurors to reach the correct verdict.’ 

The Mocker, writing in Thursday’s Australian was extraordinarily prescient:

If you happened to catch Philip Strickland SC’s comments outside court following Rolfe’s acquittal, you could be forgiven for thinking the Crown prosecutor was an advocate for Walker’s family. “The shooting at Yuendumu raised issues, not all of which could be explored at this trial,” he said.

We anticipate that those issues and the evidence that could not be examined in this trial will be very carefully scrutinised at the inquest. And it is our view that the family of Kumanjayi Walker and the Warlpiri community and indeed the Australian people deserve no less than that full scrutiny.”

Memo to Mr Crown: a coronial inquest is not a fallback for a failed prosecution. Neither is it for you to publicly allude to evidence that was not put to the jury. As for what the Australian people deserve that must include a police force and public prosecution service that is apolitical, impartial and objective.

A suggestion for the NT Office of the Director of Public Prosecutions: you might want to read and perhaps even follow your own prosecution guidelines, particularly that excerpt which mandates cases be initiated or continued only when there is a “reasonable prospect of conviction”. Also:

“A decision whether or not to proceed must not be influenced by any possible media or community reaction to the decision.”

Why then did your office give this case the go-ahead, let alone proceed to trial, when even a bush lawyer could tell you it would never get up?

This is a second trial, an ex officio continuation of the first, of Zachary Rolfe on the same charge, this time conducted in and by media.  The only difference is that, this time, the sentence is not custodial but reputational.   Effectively, the prosecution is declaring Rolfe guilty despite that fact that a jury found him innocent. That is certainly the way the Aboriginal community will see it.  And they will inevitably draw the conclusion that our justice system is broken and that it is stacked against them.

It is an inflammatory and extraordinary irresponsible course of action on the part of the DPP that can only have been designed as a pre-emptive defence against fall-out that will accrue against the Gunner government’s handling of this matter in any investigation or enquiry.

Once a verdict has been reached and the appeals process exhausted, then justice has been served and the State has a duty to accept that outcome.  After any high-profile trial there will be those that believe the jury got it wrong, and in many cases they would be right – witness Cardinal George Pell.  Such critics do have the right to express that opinion, no doubt about it.  But the State does not enjoy that same right.  If it believes that some egregious error occurred that corrupted the trial, it has the right to take steps to redress that anomaly through due process. 

The exclusion of the so-called ‘tendency’ evidence was no error or anomaly but normal judicial practice. That the dossier was shoved into the spotlight post-trial suggests ‘normal’ in Territory jurisprudence is anything but.

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Published by Nelle

I am interested in writing short stories for my pleasure and my family's but although I have published four family books I will not go down that path again but still want what I write out there so I will see how this goes

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