The full bench of the Northern Territory supreme court will consider whether the police officer accused of the murder of Yuendumu man Kumanjayi Walker can argue at trial that he was not criminally liable because he was fulfilling his duties as a police officer in “good faith” at the time of Walker’s death.
The “assumed facts” for the application, released by the court on Wednesday, indicate that NT police officer Zachary Rolfe, 29, shot 19-year-old Walker three times as officers attempted to arrest him. According to the assumed facts, the second and third of those shots were fired from no more than 5cm away.
According to the assumed facts, officers attended Walker’s house after he’d breached a court order by returning to the community, and then threatened officers with an axe.
It is alleged that Rolfe fired his gun after Walker had stabbed him with a pair of surgical scissors.
Rolfe is charged with murder and the alternative charges of reckless or negligent conduct causing death, and engaging in a violent act causing death. He has previously indicated he will plead not guilty.
The assumed facts for Wednesday’s application state that Rolfe first shot Walker in the back from close range, but Dr Marianne Tiemensma, a specialist forensic pathologist, determined that was not the fatal shot.
Rolfe then fired another two shots into Walker’s left torso over the following seconds, with ballistic evidence suggesting they were fired from only five centimetres away.
Dr Tiemensma concluded in her post mortem that it was the second or third shot that was fatal.
The assumed facts also say that Walker was handcuffed a minute after he was fatally shot.
After he was shot, Walker was then transported to the Yuendumu police station, where he was pronounced dead at 9.28pm.
The assumed facts also indicate Rolfe had watched bodycam footage of a previous incident, where Walker had allegedly threatened officers with an axe. He is said to have viewed that footage “several times” in the days before shooting Walker.
Defence lawyer David Edwardson QC had argued in court on Wednesday that provisions in the NT Police Administration Act provided officers with immunity in particular circumstances where they were acting in “good faith”.
“This provision can provide defence for the accused in respect to all three charges he faces,” he told five judges on the full bench of the NT supreme court.
“It is common ground that section 148B in the form of a defence provides immunity from liability, not from prosecution.”
Prosecutor Philip Strickland SC disagreed, saying Rolfe wasn’t performing a duty when he fired the second and third shots and isn’t afforded the protection of the Act.
Strickland said the Act didn’t give individual officers the power to prevent crime and its protections were not relevant to Rolfe if that was his intent.
The case is currently before acting Justice Dean Mildren. The hearing will continue on Friday.