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Home Issue 36 Zachary Rolfe could have made different choices, experts tell court

Zachary Rolfe could have made different choices, experts tell court

By KIERAN FINNANE

It is uncontested that Constable Zachary Rolfe fired three shots at Kumanjayi Walker in the evening of 9 November last year at the remote community of Yuendumu, north-west of Alice Springs.

The first shot was “perfectly reasonable”, according to US criminologist Dr Geoffrey Alpert, an expert in officer-involved shootings, whose evidence was given in Mr Rolfe’s committal proceedings in the Alice Springs Local Court today.

The second and third shots, in Dr Alpert’s view, fired in close range to Mr Walker, were  “excessive, unreasonable, and unnecessary”.

Evidence from Detective Senior Sergeant Andrew Barram, currently with the NT Police Professional Standards Committee, was also heard.

He said the first shot “may have been justifiable”; he was not of that view in relation to the second and third shots.

Mr Rolfe is accused of the murder of Mr Walker. He intends pleading not guilty. Indeed, his counsel will make submissions on September 25 that there is no case to answer. The committal has now been adjourned to that date.

Judge John Birch asked defence counsel, David Edwardson QC, if he intends to make submissions “in relation to the immunity under the Police Administration Act”. Mr Edwardson thought that may be a matter for the trial judge rather than the committal judge, with which Judge Birch agreed.

In any case, immunity is not “front and centre” of what he is intending to put to Judge Birch.

Dr Alpert found the first shot reasonable because it had been fired after Mr Walker had stabbed Const Rolfe with a pair of scissors.

Once that had “ended”, in his view, Const Rolfe had the opportunity to reassess and to choose a “hands on” response or less lethal force, such as his Taser. 

By “hands on” he meant he could have helped Const Adam Eberl who was “hands on” with Mr Walker.

“He could easily have helped him,” said Dr Alpert in his evidence-in-chief, “by using his hands and his ability to control [Mr Walker], who had been shot, mind you, but to control his hands and to control his use of the scissors, as to not inflict any more injury to the officers.”

Const Rolfe may have been too close, he said, to use the Taser in “probe” mode (when prongs shoot out with the wires attached), but he could have used it “drive-stun” mode (when just the prongs make contact with the skin). 

This “doesn’t incapacitate the individual, but is a pain compliance manoeuvre”: “I think he had the time to do that.”

Cross-examination of both witnesses turned mainly on these questions of time and control of Mr Walker.

The time to fire the three shots was potentially five seconds, according to Sgt Barram.

The inquest evidence was 2.7 seconds between shot one and shot two, according to prosecuting counsel Phillip Strickland SC. This was accepted by Mr Edwardson, who later referred to half a second between shot two and three.

These few seconds in any case were a “dangerous, adrenaline-driven, high stress encounter”, defence counsel Anthony Allen put to Dr Alpert, who agreed “absolutely”.

Const Rolfe had been stabbed but did not know the extent of his injuries; he had to make “split second decisions” in a “rapidly evolving” situation and his partner, Const Eberl, was “locked in combat with an armed assailant”. Agreed.

He did not have the right hand, holding the scissors, under control, put Mr Allen, to which Dr Alpert replied, “Well we learned that later, that’s correct.”

(Sgt Barram took a different view of this issue.)

Added to this was Const Rolfe’s knowledge of Mr Walker’s “predisposition for violence”, with reference particularly to the axe incident. And the situation was being made “all the more difficult” by Mr Walker.

Dr Alpert replied: “Absolutely it was made all the more difficult. But you know, these guys have a difficult job to do and they’re trained to do it well.”

The American witness was also challenged by Mr Allen on the relevance of his expertise in an Australian criminal court. He has given evidence in Australian civil matters and coronial inquests, but not previously in criminal matters.

He was also asked to accept that there are cultural differences between the United States and Australia (he agreed) and “in particular that there are cultural differences when one considers Indigenous Australians”, to which he also agreed.

However he told the court that for the last 10 years he has been spending several months in Australia, mainly in Queensland: “I’ve learned quite a bit … about Australian cultural and certainly the Indigenous cultural as well. I don’t consider myself an expert in it, but I’m familiar with it.”

Much time was spent on whether Const Rolfe had control of Mr Walker’s right hand, including evidence from Dr Andrew MacIntosh, a biomechanics expert.

On the basis of body worn video evidence, including enhanced single frames that were shown in court today, Dr MacIntosh maintained the opinion put in his report that “on balance, Walker was likely a low threat to Eberl at the time of the second and third gunshots.

“Walker’s right arm was likely pinned under his body by Walker’s posture and the weight of Eberl on Walker’s upper body.”

This assessment of the threat took into account the possibility of some mobility for Mr Walker’s right forearm and hand, he said.

Mr Edwardson challenged him on the obvious limitations of interpreting video footage – such as distortion of distance by the wide-angle lens of body-worn cameras and the position of the camera, usually on the chest, providing a different view from the line of sight of an individual.

Dr MacIntosh said he had tried to be “very careful” in relation to all of that.

With Sgt Barram, Mr Edwardson spent time on police training in relation to the use of force.

Sgt Barram said in his report Const Rolfe “had the option to draw his Taser, spray or baton instead of his firearm”.

However, Mr Edwardson put to him, that due to the potential lethality of an edged weapon, police are taught to draw their firearm ”to provide lethal cover.”

After that they can consider “the use of other less lethal tactical options if the situation permits, such as having one officer maintain lethal cover while another officer transitions to Taser.” Sgt Barram agreed with all of this.

He also agreed that firing two shots in rapid succession – a double tap – is taught in the NT police firearms package, “increasing the chance of incapacitating the subject”.

Sgt Barram had analysed the factors that led to the first shot being possibly a reasonable course of action. 

They were:

• Prior knowledge that Walker had armed himself two days prior to resist arrest;

• Rolfe had seen a bladed weapon in Walker’s hand;

• Rolfe had actually been stabbed by Walker with that improvised weapon, the logical extension of which is that if Walker was prepared to stab Rolfe, he was also prepared to stab Eberl;

• Eberl was in close contact with Walker, who was still armed;

• police training around the potential lethality of edged weapons, particularly when in close proximity; and

• such close proximity means there is not time or distance in which to consider and deploy other tactical options. In the short period of time Rolfe had to decide, it was reasonable to conclude that Walker would continue to attempt to stab Eberl.

But these factors did not apply to the second and third shots, under Sgt Barram’s “sinister interpretation”, as Mr Edwardson put it.

This was because Mr Walker’s resistance was “ineffective”.

The two officers “had control of him”: “He was face down on the ground, incapable of stabbing anyone, with an officer on top of him, and with his arm pinned under him, jammed up by a mattress.”

Mr Edwardson reminded him that he had agreed that he couldn’t see on the video that Mr Walker’s right arm was pinned underneath him.

“You don’t know that,” said Mr Edwardson.

“It wouldn’t be anywhere else,” replied Sgt Barram.

“What [makes] you say that?”

“Because it’s attached to his right shoulder, which is on the ground.”

Mr Edwardson asked him if he had ever discharged a firearm against an individual in his professional life?

“No,” said Sgt Barram.

“So you’ve never actually yourself, in a practical sense, been confronted with what Mr Rolfe was confronted with?”

“I have.”

“You have?”

“Yes.”

“You didn’t discharge?”

“No.”

Photos: Top, Mr Rolfe’s legal team, David Edwardson QC in the middle, Anthony Allen on the left. Above: Prosecutor for the DPP, Philip Strickland SC.

 

Last updated 3 September 2020, 8.45pm.

 

Related reading:

 

Zachary Rolfe: body-worn video of shooting shown in court

Zachary Rolfe: police give evidence about firearms training

 

3 COMMENTS

  1. It may be too early to comment on the hearing process as yet, but we can thank Kieran Finnane for taking the trouble to be present in the courthouse and on the lawns throughout the hearing. Finanne’s court reporting is always clear, informed, trustworthy. We are fortunate to have her on the job. Thanks.

  2. Good to see the experts come out of the woodwork with hindsight after the event. Remember the policeman who shot an early settler at Ti Tree some years ago?

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