A Supreme Court judge has rejected a move to ban the publication of allegations NT Police Commissioner Jamie Chalker and senior executive members intentionally withheld evidence from the defence team and the Director of Public Prosecutions in the Constable Zachary Rolfe murder case.
The DPP had moved for the suppression order after allegations were made by the defence that a crucial report prepared for the coroner was “seized” and “edited” by police and later “buried”.
Mr Rolfe’s lawyer David Edwardson told the court today that coronial reports compiled by officer Supt Scott Pollock will refute evidence expected to be given by the prosecution’s star witnesses.
Mr Edwardson said the reports were not provided to the defence team until they became aware of them and subpoenaed the reports, which were only recently handed over in part, with large sections redacted.
Mr Chalker’s lawyer Mary Chalmers said the reports needed to be redacted due to legal professional privilege.
Mr Edwardson said Mr Chalker had refused “not only the existence, but also the production of these materials on the basis that we could not demonstrate a legitimate forensic purpose”.
“Not only was there a legitimate forensic purpose, but patently they should have been disclosed, they should have formed part of the prosecution brief, and Mr Pollock should be a witness who’s presented by the DPP as a matter of fairness to the accused,” Mr Edwardson told the court.
Mr Edwardson said the reports contained relevant information about the shootings, including Mr Rolfe’s police training.
He said that Mr Pollock had considered reports made by the prosecution’s two expert witnesses and had set out in his own report for the coroner “why those expert opinions were misconceived, ill-informed and wrong”.
“That was not disclosed to the defence,” Mr Edwardson said.
“But it gets much worse than that. Assistant Commissioner [Nick] Anticich, it would seem, who was instrumental in the charges preferred against my client, is the person who ultimately stopped the progression of that report because it was inconsistent with the case that they wanted to present, that is, the prosecution case.”
Crown prosecutor Sophie Callan then made an application to the court for any references to the Pollock reports – and claims that they were intentionally withheld – be suppressed from being reported by the media due to concerns it could taint a potential jury in the upcoming trial.
Mr Edwardson and a lawyer for News Corp opposed the suppression order.
“You can’t quarantine and hide or conceal reports that go to the very issue that the jury will have to consider,” Mr Edwardson said.
Pollock report ‘seized’ and ‘edited’ by police: Defence lawyer
Mr Edwardson further said that the Pollock reports for the coroner that were in draft form were “seized” and edited by the officer in charge of the criminal matter, Kirk Pennuto.
“The Coronial inquiry was the province of Mr Pollock, who created the report or the draft reports, they were then seized by Mr Pennuto, and it’s Mr Pennuto who then sought to try and, as it were, edit the Pollock reports,” Mr Edwardson said.
Ms Callan rejected Mr Edwardson’s submissions to the court that the matter should not be suppressed.
“There is a proper basis for non-publication orders where there is a real risk that media reporting may extend widely a notion that there has been an unfair prosecution, at least to date, in relation to Mr Rolfe,” she said.
Justice Mildren rejected the prosecution’s argument for suppressing the publication of the details presented in court.
“I don’t propose to make a non-publication order,” he said. “I do not believe that the matters that are being raised are likely to affect the jury panel, and therefore I don’t propose to make any order at all.”
Ms Chalmers refuted claims that Mr Chalker had intentionally withheld the reports.
“That’s simply not the case,” she said. “The assertion is refuted to the extent that there’s a suggestion that something nefarious has gone on.”
The defence team and prosecution continued arguments over the full release of the Pollock reports with a decision reserved until later this month, after further information from the prosecution is presented.
Mr Rolfe has been charged with the murder of 19-year-old Kumanjayi Walker in Yuendumu in November 2019. It’s understood he will plead not guilty. The trial is scheduled to be heard in Darwin and will run for five weeks beginning next month.