A screen grab from body cam footage of Constable Zachary Rolfe talking to Indigenous people two days before he shot Kumanjayi Walker three times (Image: AAP/Supplied by the NT Supreme Court)

The jury that acquitted police constable Zachary Rolfe of murdering Kumanjayi Walker knew what he said he had done and what other witnesses had to say about it, and had seen the body cam footage. What its members didn’t know was whether Rolfe had form.

If they read the news, they’ll now know the prosecution had wanted to place before them a significant volume of evidence suggesting that Rolfe did have form, relevant enough to inform their assessment of his actions on the day Walker died.

The defence had fought that and won. Not only was all that evidence excluded from Rolfe’s trial so the jury never saw it, but the court placed a suppression order over it to ensure it couldn’t be reported.

The suppression order was lifted, post-trial, only because the media went to court over it. What is now public is disturbing, but we must be careful when contemplating what to make of it. 

There are two aspects to Rolfe’s history that give serious pause. His attitude to his job was, on evidence of his private statements, somewhat different from the picture he sought to paint in interviews he gave while awaiting trial. In text messages obtained by the prosecution, he had described Alice Springs as being “like the Wild West” with “fuck-all rules”, and his role with the immediate response team as a “sweet gig, just get to do cowboy stuff with no rules”.

More concerningly, on four occasions in the two years before Walker’s death, Rolfe was the subject of allegations that he used excessive force on Aboriginal suspects during attempted arrests, and in three of them that he also fabricated evidence or lied to cover up his actions.

According to third party evidence, on one occasion — after Rolfe had allegedly punched a suspect causing unconsciousness — he asked another police officer to scratch his face so he would have an injury that he could use as justification for the force he had used. Apparently a magistrate later found that he had deliberately assaulted the suspect and then lied about it.

The prosecutor in the Walker case wanted all this evidence to be shown to the jury, along with a report by an expert who had reviewed 46 incidents involving Rolfe and had concluded that he had a disregard for safety and proper procedure. The argument was that the evidence showed a pattern of behaviour, something about which the jury should appropriately know.

This is a fraught area of the criminal law; it is a hellishly difficult balancing act for judges to determine whether evidence of things other than the specific alleged crime in question should be allowed in, on the basis that it speaks in some way to the likelihood that the accused committed this crime. 

What does Rolfe’s alleged track record for excessive violence during arrests of Aboriginal suspects tell us about whether he murdered Walker? In a literal sense, no more than what one coin toss can tell us about the next.

However, the law does recognise propensity as a real thing, that a clear enough pattern of a particular type of conduct can fairly inform an assessment of whether certain alleged things happened or what a person’s mental state at the time was. The court has to weigh whether the value of that information is greater than the prejudicial effect it is likely to have on the jury’s minds.

In this case, the judge concluded that the evidence of Rolfe’s past acts was not sufficiently relevant to what he had allegedly done to Walker, and so it was excluded. In this context, it’s only fair to keep in mind that there was no real contest over the facts of Walker’s death since it had been captured on video. The issue was whether Rolfe’s actions were criminal, and the jury determined that they weren’t. I can see why the judge ruled that what Rolfe had done on other occasions wasn’t going to be helpful.

It’s pointless to posit the “what if” scenario of that evidence having been put in front of the jury. It wasn’t, and that’s the end of it. Rolfe is entitled to the benefit of his acquittal and the case should not be retried in the media.

There is a different question, however, which can be fairly asked now that we know about Rolfe’s history: why was he in that room that day, holding a gun, at all?

It goes without saying that policing is a sacred trust; we clothe police officers with a badge and a gun, the authority and the power that go with them, as an act of faith in their personal integrity and their ability to wield their weapons and responsibilities with good judgment.

Rolfe, by any analysis, had a deeply troubling record. It says something about the Northern Territory Police Force that he was still out there in the Wild West, being placed in situations where split-second decisions must be made with potentially deadly consequences.

Policing is not, obviously, for the faint-hearted. We should be slow to second-guess operational decisions, especially those made under stress. But we can legitimately ask, and I think we should, what is going on in the NT and the oversight of its cops? It looks like Rolfe’s own descriptions of the conditions under which he worked may have been disturbingly accurate.