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Rolfe: forensic evidence on which shot was fatal

By KIERAN FINNANE

The first shot fired by Constable Zachary Rolfe into Kumanjayi Walker’s back was not fatal.

This is the forensic evidence of Dr Marianne Tiemensma, a specialist forensic pathologist, who undertook a post mortem examination of Mr Walker.

The shot was fired at close range.

This information is contained in the “assumed facts” of the case released yesterday, as the Full Court considered four legal questions relevant to Mr Rolfe’s defence.

Mr Rolfe is accused of Mr Walker’s murder, or “in the alternative” with reckless or negligent conduct causing death, or “in the further alternative” with engaging in a violent act which caused the death.

He has indicated to the court that he will plead not guilty. His trial was due to start on Monday (26 July) but has been delayed due to Covid-19 travel restrictions affecting the senior prosecution lawyers who live in Sydney. More will known about rescheduling tomorrow.

The shooting took place in Yuendumu, 293km north-west of Alice Springs, in the evening of 9 November 2019.

The first shot was fired at 7.22:01pm, according to the assumed facts. It was fired after Const Rolfe had told Mr Walker to “Just put your hands behind your back”  and after Mr Walker had used a pair of scissors to stab Const Rolfe in the left shoulder.

At 7.22.04pm – 2.6 seconds after the first shot – Const Rolfe fired a second shot into Mr Walker’s left side.

Fractionally less than a second later, at 7.22.05pm, he fired a third shot into the same area.

Ballistic evidence indicates that the second and third shots were fired at a distance of no more than five centimetres from Mr Walker.

After being handcuffed, the wounded Mr Walker was taken to the Yuendumu Police Station, where police administered first aid. He was declared dead at 9.28pm.

Dr Tiemensma’s conclusion from the post mortem examination, according to the assumed facts, is that the fatal shot was either the second or third shot.

Her forensic evidence during the committal hearing of this case was not the subject of cross-examination and has not been previously made public.

The legal questions before the Full Court go to the possible defence of Const Rolfe’s actions under the Police Administration Act 1978, whose section 148B provides protection from civil and criminal liability for a person acting in good faith in the exercise of a power or performance of a function under the Act.

The Full Court has been asked to determine the capacity in which Const Rolfe was acting such that a defence under s 148B could be put to a jury for consideration.

The court has also been asked to determine the interaction of that defence with a similar provision of the Criminal Code – s 208E, protecting law enforcement officers from criminal liability in the performance of their duties if the conduct is reasonable in the circumstances  – and where a defence has been raised under s 43BD.

S 43BD is not specific to law enforcement officers, but applies to anyone raising self-defence, or defence of another, as justification for their conduct.

The exact phrasing of the legal questions is reported here.

Photo at top: Mr Rolfe (centre) outside the Supreme Court in Darwin, by ABC News Che Chorley.

 

Last updated 30 July 2021, 9.25am

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