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Constable Zachary Rolfe has launched legal action against Northern Territory Police Commissioner Jamie Chalker in a bid to have disciplinary action taken against him thrown out.
Key points:
- Constable Rolfe denies the 25 alleged breaches of police discipline
- The Supreme Court action is separate to the ongoing inquest into the death of Kumanjayi Walker
- The alleged breaches of discipline were uncovered while police were investigating Constable Rolfe over Mr Walker's death
Supreme Court documents show the officer is seeking to have a series of decisions related to internal police disciplinary matters quashed, arguing some disciplinary proceedings were not launched within the time frame required and other decisions made by senior officers "exceeded jurisdiction".
The documents show Constable Rolfe was charged with 25 alleged breaches of discipline in 2021, all of which he denied.
The details of the allegations against him were not specified in the documents and no adverse findings have been made against him in relation to the two files subject to the Supreme Court action.
Documents show the alleged breaches of discipline were uncovered while police were investigating Constable Rolfe for the alleged murder of 19-year-old Warlpiri-Luritja man Kumanjayi Walker in November 2019.
Constable Rolfe was found not guilty of all criminal offences, including murder, manslaughter and engaging in a violent act causing death, after a Supreme Court trial earlier this year.
A coronial inquest investigating the circumstances of Mr Walker's death began in September 2022. Hearings will resume in February next year, when Constable Rolfe is expected to give evidence.
During inquest proceedings in Alice Springs in November, barrister for the Northern Territory Police Force Ian Freckelton KC told the coroner there were ongoing disciplinary proceedings involving Constable Rolfe, which related to material found on his mobile phone.
"It is open to Constable Rolfe, if he is so inclined, to seek judicial review of the correctness or otherwise of that decision as a matter of law by December 12 of this year, your Honour, to enable Constable Rolfe to make a decision in that regard," Mr Freckelton KC said on November 16, 2022.
The documents filed against the Police Commissioner in the Northern Territory Supreme Court, on behalf of Constable Rolfe, were filed on December 11, 2022.
'Jurisdictional errors' in discipline, Rolfe argues
According to the Supreme Court documents, Constable Rolfe will argue police had "no power" to investigate the contents of his mobile phone for the purposes of disciplinary action.
Constable Rolfe's phone was seized by police on November 13, 2019, after he was arrested and charged with the murder of Mr Walker.
The documents say no warrant was executed to seize, search, or extract the contents of the phone before it was examined by criminal and coronial investigators throughout 2020 and 2021.
A series of text exchanges between police officers, using racist language, have been the subject of evidence at the ongoing coronial inquest into Mr Walker's death.
The coroner also heard body-worn camera footage was allegedly sent from Constable Rolfe's phone to an unnamed civilian.
Constable Rolfe will likely argue in the Supreme Court that internal police disciplinary action stemming from his phone being examined "misapprehended the limits of the power to obtain and use that evidence" and was a "jurisdictional error" on behalf of police.
Supreme Court documents also indicate Constable Rolfe will argue the two separate disciplinary actions taken against him in August and September 2021, constituting 25 alleged breaches, were commenced outside the legally required time frame.
The Police Administration Act dictates the disciplinary action must be commenced within six months of the alleged breach being discovered, unless an extension of time is granted by the police commissioner or a local court judge.
Constable Rolfe is expected to argue that extensions of time which were granted to investigating officers were "ineffective" because the dates of discovery relied upon by police were incorrect.
"There is no express or implied condition in [the Police Administration Act] that the act or omission must be discovered by a 'prescribed member' [of the police force] and accordingly, the decision of the hearing officer in determining his jurisdiction on that basis was ultra vires," the originating motion filed by Constable Rolfe's lawyer said.
"The disciplinary action was not commenced within the time fixed by [the Police Administration Act]."
During a short interlocutory application before Acting Associate Justice Meredith Huntingford this week, Constable Rolfe's lawyer Luke Officer told the court the issues were "quite discreet".
"This [court action] largely turns on the interpretation of a couple of statutory instruments … I don't envisage [calling] any witnesses," Mr Officer said.
The matter will return to court in January, before a hearing date is set for later in the year.
The ongoing coronial inquest into the death of Kumanjayi Walker will resume in Alice Springs in February 2023.