EXCLUSIVE: The top cop in charge of overseeing complaints about NT Police investigations had warned officers building the murder case against Constable Zach Rolfe that their use of force “expert” Snr Sgt Andrew Barram was “not suitable” to provide evidence due to a “conflict of interest”, internal police emails obtained by the NT Independent show.
However, those concerns were ultimately ignored with Sgt Barram becoming the prosecution’s star witness at the Supreme Court murder trial.
Records show senior police figures Commander Bruce Porter, then in charge of the police college, and then-acting Commander Martin Dole, wrote to Commander Danny Bacon, who was then in charge of Professional Standards Command, a week after Constable Rolfe was charged for murder in the shooting death of Kumanjayi Walker in 2019, to recommend Sgt Barram act as the use of force expert for the internal investigation.
Cmdr Porter suggested Sgt Barram was qualified to provide evidence due to his history as the officer in charge of the police college, including at the time Constable Rolfe was trained, had oversight of the police’s Operational Safety and Tactics Training (OSTT) and had been the NT’s representative on “many forums” relating to use of force.
However, Cmdr Bacon was adamant Sgt Barram was “not suitable” because he was too entrenched in the NT Police force.
“…I find that he is not suitable to provide [evidence],” Cmdr Bacon wrote in an email dated November 20, 2019, obtained by the NT Independent.
“I state this on the basis that all these reasons [raised by Porter] would place him in a perceived Conflict of Interest in relation to providing this report for Op Charwell [the taskforce investigating Rolfe].
“It perhaps could be mitigated if we were dealing with matters on a discipline level, but this matter is a Criminal Murder Charge and I think the less conflicts we have in place surrounding expert evidence the better it will be for the Integrity of the File.”
Cmdr Bacon added that he felt Sgt Barram could function as “a conduit for an individual interstate expert to assist and guide them to relevant policies and procedures” but that having him provide a local report was “fraught with increased risks both to the coronial and criminal trial”.
He recommended seeking an “independent interstate” expert.
Cmdr Bacon was Sgt Barram’s immediate supervisor in professional standards at the time and it remains unclear who overruled Cmdr Bacon to permit Sgt Barram to become involved in the case.
Sgt Barram not only provided information for the internal investigation, he was also the prosecution’s star witness on police use of force at the Supreme Court murder trial in the absence of any interstate or international witnesses brought by the prosecution that would be typical in a murder trial.
Sgt Barram testified at the trial that Constable Rolfe did not follow his training during the incident and that he had failed to maintain proper distance after engaging with Mr Walker inside a house in Yuendumu.
He also suggested Constable Rolfe had prematurely disengaged the holster device on his firearm after entering the home.
Sgt Barram, who told the court he had five black belts in martial arts, ultimately suggested that Constable Rolfe should have put his gun away after the first shot and engaged Walker with his hands while he was struggling with Eberl.
His evidence was torn apart by the defence team’s expert, former Australian Federal Police special operations veteran Ben McDevitt, who said Constable Rolfe was following proper training when he fired the second and third shots and that he “didn’t understand” Sgt Barram’s testimony.
“I again say (Sgt Barram’s suggestion) is a ludicrous statement,” Mr McDevitt told the court. “It’s just not in accordance with the training, or with the use-of-force model. I don’t understand it.”
It was argued throughout the case that Mr Walker was a low level threat at the time the second and third shots were fired because he was in the process of being restrained by officer Adam Eberl on a mattress.
However, Mr McDevitt told the court Mr Walker remained a potentially lethal threat throughout the three-shot sequence, and was more dangerous once Constable Eberl was wrestling with him on the ground.
“I’ve seen hundreds of ground struggles, taught them for years … and things can change incredibly quickly,” he said.
“One person can be in a dominant position, (then) half a second later, they’re not.”
Experts of ‘a much higher level’ than Barram sought by police: Emails
The internal police emails and notes from Operation Charwell show investigators were actively canvassing interstate and international use of force experts to provide opinions for their case against Constable Rolfe.
Lead investigator Detective Acting Superintendent Kirk Pennuto, had disagreed with Cmdr Bacon’s assessment of Sgt Barram, stating in another email that they had “already sourced SME’s [subject matter experts] at a much higher level and that Mr Barram’s background would inform the SME aspect”.
At the committal hearing, US-based criminologist Dr Geoffrey Alpert gave evidence after reviewing body-worn camera footage from the night of the shooting. He testified that it was his opinion that the first shot Constable Rolfe fired at Mr Walker was “reasonable” but that the second and third shots were “excessive, unreasonable and unnecessary”.
Mr Alpert’s testimony was relied on at the committal hearing to refer Constable Rolfe to the Supreme Court for murder.
However, Mr Alpert was not called to give evidence at the Supreme Court trial, with the prosecution relying solely on Sgt Barram’s “expert” evidence, which was rejected by the jury.
Detectives had raised concerns about ‘unfinished brief of evidence’ given to DPP for charges
Previously reported detectives’ notes from November 2019 show concerns were raised over what the detectives 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 charges.
Current DPP Lloyd Babb did not respond to a series of detailed questions from the NT Independent last week about the DPP’s involvement, but defended the decision to charge Constable Rolfe in a brief statement.
“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.”
Constable 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.
The NT Independent has also previously revealed police diary notes that contradict Police Commissioner Jamie Chalker’s public claims that he was not involved in the investigation and subsequent charging of Constable Rolfe.
Allegations of improper conduct, including political interference, relating to the procedures followed between the shooting and the arrest and charging of Constable Rolfe are currently the subject of an ICAC investigation, which is expected to include public hearings into the matter.