There was already a trial, so why is there an inquest? UTS Professor of Law Thalia Anthony explains.
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Aboriginal and Torres Strait Islander readers are advised this article contains names and images of deceased people, and mentions of racial discrimination and racist language against First Nations people.
This week marks three years since Kumanjayi Walker was shot and killed by Northern Territory police constable Zachary Rolfe.
Rolfe was initially charged with murder, and later the alternative charges of manslaughter and violent act causing death were added. The trial did not come to a conclusion until March 11 2022, when a jury (with no Aboriginal representation) found Rolfe not guilty.
Now an inquest into Walker’s death is taking place.
What is an inquest?
An inquest is an independent inquiry into the causes of someone’s death that is conducted by a state or territory coroner. Inquests routinely occur in deaths in custody cases in the Northern Territory.
When a death in custody concerns a First Nations person, the police have exhibited a reluctance to pursue criminal investigations. Therefore, it usually requires the coroner to recommend a referral to police and prosecutors before criminal responsibility is considered by these agencies.
In Kumanjayi Walker’s case, the criminal proceeding occurred first. This is likely due to the weight of evidence making the possibility of conviction reasonable and, efforts by the #JusticeForWalker campaign to highlight prosecution was in the public interest. Both factors - evidence and public interest - can inform decisions to prosecute.
The coroner can not address criminal responsibility. They inform causes of the death, and action that can be taken to prevent similar deaths in custody. The coroner can also recommend disciplinary action against people who may be at fault.
The scope of the inquest
The inquest into the death of Kumanjayi Walker commenced on September 5 and is due to conclude on December 2 this year. An inquest aims to examine the broad causes of death, rather than lay blame. It has already begun to hear and receive evidence on the matters of Rolfe’s past, including violent conduct and racist attitudes.
The inquest will continue to consider whether the supervision and response by senior police to Rolfe’s past use of force, firearms and failure to turn on body-worn video was adequate. It will explore questions of the appropriateness of police arrangements, including the role of the Immediate Response Team to arrest Kumanjayi. Questions such as why violence was used in the arrest, and why police were arresting Kumanjayi in his home on the night of his uncle’s funeral are being explored.
The inquest will also receive evidence on structural racism in the NT, and the NT Police in particular. It will examine the role of the Northern Territory Intervention (a series of federal government laws and policies since 2007 that racially target Aboriginal communities in the NT) in police relations, and specifically in Yuendumu.
The inquest will consider police accountability mechanisms and the culture of the NT Police Force, and identify strategies for change to prevent similar deaths in custody. However, there is no legal obligation for governments and agencies to implement coronial recommendations.
Who does the inquest hear from?
Unlike in the criminal trial, Kumanjayi Walker’s family and the Warlpiri community at Yuendumu has legal representation and a voice in the proceedings. Evidence will also be provided by others outside of the law enforcement system. This includes expert statements by critical race theorists, including leading First Nations scholars, anthropologists, and police accountability scholars.
However, there are also at least 147 statements by police, and the inquest hearings have thus far heard from many more police witnesses than Warlpiri people and other Aboriginal people in the NT. Their lived experiences are valuable as they can provide unique insight in highlighting what needs to change about policing in the NT.
How will the inquest be different from the trial?
While an inquest receives information from a wide range of sources and witnesses and is overseen by a coroner, a trial only considers information within the rules of evidence and guilt is usually determined by a jury.
In the days that followed Rolfe’s acquittal, text messages were released which were ruled inadmissible by the judge in criminal trial, because they may not have reflected Rolfe’s thinking at the time he shot Kumanjayi.
These text messages revealed Rolfe described his job as “a sweet gig, just get to do cowboy stuff with no rules”. A few months later, text messages emerged in which Rolfe described Aboriginal people as “neanderthals who drink too much alcohol”.
Other evidence, including Rolfe’s history of repeated use of violence towards Aboriginal people while on duty, was also left out of the trial, as was his past unlawful conduct, including for public nuisance-violent behaviour. These have all been matters before the inquest.
What have we heard from the inquest so far?
Thus far, the inquest has focused on the conduct of the Immediate Response Team on the night of the shooting and the violent behaviour of Rolfe more generally as well as the failure of the police and prosecutors to punish his violence.
Kumanjayi Walker’s family have expressed their ongoing suffering and fear from the shooting. They have called for action to follow the inquest, including a ban on police guns in Aboriginal communities.
The opening statement of the inquest from Warlpiri man Ned Jampajimpa Hargraves – a strong advocate in the “Justice for Walker” campaign – spoke about the sense of danger that kardiya (white people), including police, had brought to his community. His final words to the coroner were
Your Honour, one last thing, there should be not – there should be no guns in the remote communities. There should be no guns, period, no guns.
What can an inquest find and what happens with its findings?
The coroner is likely to make a wide range of findings and recommendations in relation to NT police practises, policies, training and accountability. There may also be findings on Rolfe’s conduct and recommendations for NT police to take appropriate action.
Findings could also extend to whether there is racism embedded in the NT Police, in the conduct and attitudes of Rolfe, in Northern Territory and federal laws, and in government practises at Yuendumu. Whether anything changes is a matter for the agents implicated in the death in custody itself: the NT Police as well as the NT and federal governments.
Recommendations relating to other Aboriginal deaths in custody in the NT, such as requests to repeal certain police powers, have fallen on deaf ears. Instead, families have had to carry the burden of rallying for change. The consequence of agencies and governments failing to heed coronial recommendations is that First Nations deaths in custody tragically continue to occur.
Thalia Anthony, Professor of Law, University of Technology Sydney
This article is republished from The Conversation under a Creative Commons license. Read the original article.