The Director of Public Prosecutions took no longer than 90 minutes to recommend a murder charge for Constable Zachary Rolfe after being provided an unfinished brief of evidence, in a meeting held just before Police Commissioner Jamie Chalker and other executives decided to arrest and charge the officer, police diary notes reveal.
The Office of the DPP did not directly answer a series of questions sent by the NT Independent about the circumstances of their involvement in the charges, including why it only took 90 minutes to determine the charge before all the evidence could be collected and if the police top brass had pushed it.
Current Director of Public Prosecutions Lloyd Babb, said in an email that “seeking of advice by police prior to the laying of a murder charge in the Northern Territory is standard procedure, and dealt with as expeditiously as possible”.
However, police diary notes from November 2019, show at least five detectives investigating raised concerns about what they said was the highly unusual involvement of the DPP before an investigation was finished, the speed at which the charges were being considered, and the handing over of an unfinished brief of evidence as the basis for a decision on potential charges.
The NT Independent understands then-DPP Jack Karczewski, and then-deputy director Matthew Nathan, were made aware of the detectives’ concerns in the unfinished brief of evidence.
Allegations of improper conduct relating to the procedures followed between the shooting death of Kumanjayi Walker on Saturday November 9, 2019 and the arrest and charging of Constable Rolfe late on the afternoon Wednesday November 13, is now the subject of an investigation by the Officer for the Independent Commissioner Against Corruption.
Constable Rolfe was found not guilty of murder, and two alternative charges of manslaughter and engaging in a violent act causing death, by a Supreme Court jury on March 11, after an almost five-week trial.
As revealed this week by the NT Independent, diary notes written by then-Detective Senior Sergeant Mark Grieve, stated that the decision for the arrest and murder charge came from the “top level of police” before specifically mentioning the Police Commissioner.
Mr Chalker had claimed last week that he had no involvement in meetings about the charges being laid.
The latest reported diary notes about the DPP brief of evidence meeting, written by Detective Superintendent Kirk Pennuto – who was the lead investigator into the shooting death of Mr Walker – show that he took the brief to a meeting with the DPP also attended by Acting Deputy Police Commissioner Michael White, Assistant Commissioner Nick Anticich, and then Commander Martin Dole.
The brief was being referred to by detectives as the ‘mini brief’ or the ‘short brief’, because they had not finished investigating, and had included the caveat that it was incomplete.
The diary entries show the meeting with then-DPP Mr Karczewski, and then-deputy director Mr Nathan, that began just before 2pm, went for no more than 90 minutes, on Wednesday, November 13, 2019 – four days after the shooting. Notes later showed that the DPP recommended a murder charge.
The notes also revealed the deadline for the brief of evidence had been brought forward twice by undisclosed figures for undisclosed reasons, from close of business that day until 1pm, which followed the police showing the DPP the police body-worn vision of the shooting at noon on Monday.
Current DPP Mr Babb did not respond to direct questions about these circumstances, if the DPP would be cooperating with the ICAC investigation or why their decision to charge was made with only a “mini-brief” and before all the evidence was collected.
Snr Sgt Grieve’s notes also stated that “director/deputy director provided Prima Facie case of murder based on 2/3 shots”.
Mr Babb did not respond to a question about whether the Office of the DPP makes decisions to charge based on “Prima Facie” evidence or the prospects of successful conviction.
“The matter was committed for trial by a Local Court Judge, following a contested committal,” Mr Babb said. “The Local Court Judge found there was a case to answer.”
Mr Rolfe was acquitted by the jury of all charges in the Supreme Court related to the death of Mr Walker, including the lesser charge of engaging in a violent act causing death on the basis of self-defence and the defence of his policing partner.
It remains unclear what threshold the then-DPP and deputy DPP used to determine the prospects of successful conviction before all the evidence had been collected.
The detectives’ objections to the DPP’s involvement would have also been known to Mr Karczewski and Mr Nathan before their decision to charge Constable Rolfe.
The reaction from the detectives to the DPP involvement
The key investigating detectives went out of their way in their notes, obtained by the NT Independent, to express their unhappiness about how things were progressing under the influence of the DPP and the police executive back in November 2019.
Notes from Det Snr Sgt Grieve show that he and other investigating detectives felt the DPP’s involvement was ‘abnormal’ in this case, partly because of the unfinished brief of evidence as the basis for a decision on potential charges.
“Member disagreed with this direction due to large amount of evidence/information to yet be reviewed,” he noted before the charge was laid.
“Consensus that this appears to be an abnormal situation and none of the members are completely happy with the report to bring interview forward or DPP involvement.”
Det Supt Pennuto called Det Snr Sgt Grieve on the Tuesday and told him he had to interview Constable Rolfe that day in Alice Springs, or to arrest him if he tried to fly interstate. The second detective recorded the legal basis on which he disagreed with the decision.
“Advised that any arrest would fall on to RM (reporting member) which would have to include being satisfied on RG (reasonable grounds) that an offence has taken place i.e. manslaughter,” he wrote in his diary.
“At present RM does not hold that belief pursuant to justification provisions i.e. in defence of self and others. S28CC (Section 28 of the NT Criminal Code).
“Deceased armed with scissors and had already stabbed Rolfe and quite possibly was attempting to stab (Rolfe’s partner Sergeant Adam) Eberl.
“UOF (use of force) training i.e. edged weapon = firearm especially at such close proximity and to continue firing until immediate incapacitation occurs.”
Detective Acting Senior Sergeant Leith Phillips, who was working in the Regional Investigations Division, and had been on the ground investigating the shooting in Yuendumu, made note of investigators’ concerns about how quickly the DPP was involved, and how fast the move towards charges were progressing.
“Leadership group in ASP (PHILLIPS / GRIEVE / WELLS) are collectively not happy that the DPP was engaged so early before ALL evidence was available to make a considered opinion based on ALL evidence given this investigation is still ongoing and information is still being gathered which may or may not be critical in the final outcome of the investigation,” he wrote.
“This is the first time in my career I have been required to sign a confidentiality agreement with regard to any investigation I have been involved with in this jurisdiction.”
Early on Wednesday morning, Det Snr Sgt Grieve told Detective Sergeant Kieran Wells, who had also been investigating in Central Australia, a “mini brief” would be given to the DPP that afternoon and Constable Rolfe was likely to be charged. He made several mentions of his feelings in his diary.
“Concerns are that the matter has not been fully investigated and a comprehensive brief has not been produced allowing the DPP to make a completely informed decision,” Dct Sgt Wells wrote in his notes.
“Issues regarding effectiveness of ongoing investigation and witness management should any decision be overly hastened.
“Reporting officer expressed concern regarding early involvement of DPP to evidence on a piecemeal basis without surrounding context and materials.
“Reporting officer advised that it was extremely concerning that crucial elements of an extremely serious criminal/coronial investigation were being hastened for no discerning justifiable reason.”
Even as late as 10am on the morning of the meeting with the DPP, Det Supt Pennuto had expressed his opposition to the pending arrest of Constable Rolfe, and a murder charge, in another meeting with Mr White, Mr Anticich, and Cmdr Dole.
“Arresting is premature. Need more time to examine outside of what the BWV (body-worn vision) captured,” he wrote.
Other diary notes written by Detective Senior Sergeant Mark Malagorksi stated he had met with Det Supt Pennuto on Wednesday for further planning for the investigation, where they discussed taking a brief of evidence to the DPP.
“Intent of the (police) executive appears to be to take a ‘package’ to the DPP,” he wrote in his notes.
On Wednesday afternoon, when told of the arrest and charge decision, Detective Sergeant Isobel Cummins wrote in her police diary the apparent reasons for the arrest and murder charge included “the way he was firing rounds” and that he “cannot say he was protecting partner”.
“Reporting member not comfortable with arrest and rushed process without full assessment of evidence and ability to investigate objectively,” she wrote.
“Process being rushed due to likelihood of travel to Canberra and DPP decision arising this afternoon.”
Police Commissioner in meeting with executives after DPP briefing
As previously reported, Det Supt Pennuto’s notes also showed that soon after the end of the DPP brief of evidence meeting, he waited in the foyer on level six of the NAB building NT Police executive headquarters in the city, while Mr Chalker met with Mr White and other police executives in Mr White’s office.
The detective’s notes show that Mr Chalker’s meeting began at 3:34pm.
After that final meeting, notes show detectives were told of the decision to arrest Constable Rolfe, which was done about an hour later, with the extraordinary offer by Det Supt Pennuto to the others that if they had not “formed the belief” the constable should be arrested, he would do it himself.
Det Snr Sgt Grieve’s diary notes written roughly 90 minutes after Mr Chalker’s meeting with executives, stated the decision for the arrest and murder charge came from the “top level of police” before specifically mentioning the Police Commissioner.
Police Commissioner’s denial and ICAC investigation
At his first press conference where he answered questions following the verdict, held on March 23, Mr Chalker told the media the investigation was done at “arm’s length” from him, and that he had never been involved in a meeting where the charges were discussed. He was asked, on the basis of some of the concerns outlined in the police notes, why Constable Rolfe was charged so quickly.
“I can’t give you an answer to that because I wasn’t involved in that,” he said.
“I’ve remained at arms-length from the investigation for the whole period of time,” he said. “The matter to charge (Constable Rolfe) was a matter for the investigation team and the DPP. I was as shocked as anybody…”
NT Police did not respond to the NT Independent’s questions at the time, but media manager Rob Cross told other media the Police Commissioner had no involvement in the process of the charge and decision to arrest.
But he did not address what Mr Chalker discussed at that meeting, and why he told media last week he had no involvement, and was “as shocked as anybody” when he learned of the charge. Journalists at the press conference did not ask when exactly he learned police had decided to charge Constable Rolfe with murder.
The NT Independent also reported on Monday that two days after the shooting, Mr Chalker had referred the matter to the ICAC for “suspected improper conduct”. The ICAC reporting guidelines for public servants specifically state that there must be a “reasonable” suspicion backed up with “one fact or more upon which your suspicion is based”.
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