Inquest into the death of Kumanjayi Walker (Ruling No 8)

[2023] NTLC 25

CITATION:	Inquest into the death of Kumanjayi Walker (Ruling No 8)
[2023] NTLC 025
TITLE OF COURT:	Coroners Court
JURISDICTION:	Alice Springs
FILE NO(s):	A51 of 2019
DELIVERED ON:	22 November 2023
DELIVERED AT:	Darwin
HEARING DATE(s):	On the papers
FINDING OF:	Judge Elisabeth Armitage
CATCHWORDS:	Coronial proceedings; inquests; death in custody; application for recusal

Care and Protection of Children Act 2007 (NT), s301
Coroners Act 1993 (NT) ss 3, 4(2), 14(2), 12(1), 15(1)(a) and (b), 19, 20, 21, 24, 25(1), 26,
34, 35, 36, 40(3), 41(2), 43(1)
Police Administration Act 1958 (NT), s4(1), Part IV

Police Administration Regulations 1994 (NT), r 18

Annetts v McCann (1990) 170 CLR 596
Bauwens v The Territory Coroner [2022] NTSC 92
Charisteas v Charisteas (2021) 273 CLR 289
Dato Tan Leong Min v Insider Trading Tribunal [1999] 2 HKC 83
Decker v State Coroner of New South Wales (1999) 46 NSWLR 415
Domaszewicz v State Coroner (2004) 11 VR 237
Doomadgee v Clements [2006] 2 Qd R 352

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Firman v Lasry [2000] VSC 240
Holmes v Commissioner of Police [2011] NTSC 108
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 017 Inquest into the death of Kumanjayi Walker (Ruling No 3) [2022] NTLC 019 Inquest into the death of Kumanjayi Walker (Ruling No 5) [2022] NTLC 024 Inquest into the death of Kumanjayi Walker (Ruling No 6) 2022 NTLC 027
Inquest into the death of Tanya Day Coroners Court Victoria, COR 2017 6424
Inquest into the death of Veronica Nelson (COR 2020 0021) [2023] VicCorC 28312
Johnson v Johnson (2000) 201 CLR 488
Kontis v Coroners Court of Victoria [2022] VSC 422
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Maksimovich v Walsh (1985) 4 NSWLR 318
Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Musumeci v. Attorney-General of New South Wales (2003) 57 NSWLR 193
Priest v West [2012] VSCA 327
QYFM v Minister for Immigration (2023) 97 ALJR 419
R v Doogan; Ex parte Lucas Smith (2005) 1 ACTR 1
R (Clarke) v Chairman of the Magnox Public Inquiry [2019] EWHC 3596
Re JRL; Ex Parte CJL (1986) 161 CLR 342
Re Royal Commission on Thomas’s Case [1982] 1 NZLR 252
Rolfe v The Territory Coroner [2023] NTCA 8
Smits v Roach (2006) 227 CLR 423
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509

Vakauta v Kelly (1989) 167 CLR 568

Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government
Liability (Lawbook Co, 2022, 7th Ed)
Coroners Court of New South Wales, State Coroner’s protocol; supplementary arrangements
applicable to section 23 deaths involving First Nations Peoples
Coroners Court of Victoria, Practice Direction 6 of 2020; Indigenous Deaths in Custody
Coronial Council of Victoria, Review into the experience of bereaved families with the
coronial process (Final report, March 2022)
Coronial Council of Victoria, Literature review into improving the experience of bereaved
families within the coronial process, August 2021
Dudgeon,P., McKenna, V., Smith, D., Ketchell, M., Tabuai K., Tabuai A., Manada, A.,
Robotham, J. (2023) Coronial responses to Suicides of Aboriginal and Torres Strait Islander
People, Research Report
The Hon Justice Peter Hall, The role of counsel assisting in commissions of inquiry (2005)
Bar News 29
Judicial College of Victoria, Coroners Bench Book - Working with counsel assisting
Judicial Commission of New South Wales, Local Court Bench Book – Coronial Matters
Newhouse, G., Ghezelbash, D., & Whittaker, A (2020), The experience of Aboriginal and
Torres Strait Islander participants in Australia's coronial inquest system: reflections from the
front line, International Journal for Crime Justice and Social Democracy, 9(4), 76-89
Northern Territory, Parliamentary Debates, Legislative Assembly, 3 March 1993, 78977899
(Mr Stone, Attorney-General)
Royal Commission into Aboriginal Deaths in Custody (Final Report, 15 April 1991), Vol 5,
Recommendations 11, 27, 28, 30

APPEARANCES:

Counsel assisting:	Ms G Huxley
Instructed by Maria Walz Legal
For Zachary Rolfe:	Mr L Officer
Instructed by Tindall Gask Bentley Lawyers
For the Brown Family:	Mr G Mullins KC with Ms P Morreau
Instructed by Streeton Lawyers
For the Walker, Lane and	Mr A Boe, Mr D Fuller and Ms G Boe
Robertson families:	Instructed by Hearn Legal
For the Northern Territory	Dr I Freckelton AO KC with Ms A Burnnard
Police Force:	Instructed by PFES Legal
For NAAJA:	Mr P Boulten SC with Ms B Wild and Mr J Murphy
Instructed by NAAJA
For the Parumpurru Committee:	Mr J McMahon SC and Mr C O’Bryan
Instructed by Doogue & George
For the Northern Territory Police	Ms S Ozolins
Association:	Instructed by Northern Territory Police Association
For Sergeant Bauwens:	Ms KN McNally Instructed by McNally & Co
For Sergeant Nankivell and Constable	Mr J Hunter KC
Kirstenfeldt:	Instructed by Gnech & Associates
Judgment category classification:	A
Judgment ID number:	[2023] NTLC 025
Number of paragraphs:	170
Number of pages:	59

IN THE CORONERS COURT
AT ALICE SPRINGS IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. A51 of 2019

In the matter of an inquest into the death of

Kumanjayi Walker

Introduction

1.        On 9 November 2019 police members from the Alice Springs Immediate Response Team (IRT) travelled to Yuendumu. The IRT members encountered Kumanjayi Walker in House 511 Yuendumu. During an incident inside the house, one of the IRT members, Constable Zachary Rolfe, shot Kumanjayi Walker three times. Kumanjayi Walker was taken to the local police station where he passed away. Constable Rolfe was charged with murder. On 11 March 2022 he was acquitted of murder and two alternative charges of manslaughter and engaging in a violent act causing death. The inquest is inquiring into the circumstances of Kumanjayi Walker’s death.

Background to the application

2.        It was apparent from the brief of evidence that this would be a significant inquest inquiring into complex matters concerning the circumstances of the death, the care, supervision and treatment of the person being held in custody, matters connected with public health and safety, and the identification of recommendations with respect to the prevention of future deaths in similar circumstances. The coronial investigation report prepared by Commander David Proctor (retired) which identified and discussed, in a summary way, some of the issues likely to be considered was 170 pages in length.[1] Numerous draft coronial reports prepared by Superintendent Scott Pollock (retired) also identified issues likely to be considered.[2] Because of the number and complexity of the potential issues raised in the coronial investigation reports the inquest was listed to run from 5 September 2022 through to 25 November 2022. As at 6 September 2022, 80 witnesses were identified on a draft witness list circulated to the interested parties.

3.        When investigating a death in custody the Coroner must appoint a person to assist the Coroner for the purpose of the inquest.[3] Given the size and complexity of the brief of evidence a Counsel Assisting team was appointed consisting of Dr Peggy Dwyer (now SC), Mr Patrick Coleridge and, as solicitor assisting, Ms Maria Walz. That team is larger than those usually appointed for regular inquests in the Northern Territory, but is modest when compared to similarly large inquests interstate, [4] and other inquiries of this scale. For the listed sittings of 23-27 October 2023 (since vacated) Ms Georgia Huxley was appointed as Counsel Assisting.

4. Since the first directions hearing on 29 March 2022, at least 19 persons or entities have been granted leave to appear or be represented at the inquest under s 40(3) of the Coroners Act 1993 (NT) (Act). Some of those persons or entities have sought to be represented only for the purposes of giving evidence to the inquest. Many others have been regular attendees. Those granted leave to appear include the Brown family, the Walker, Lane and Robertson families (WLR families), Constable Zachary Rolfe, the Northern Territory Police Force (NTPF), the Department of Health, the Parumpurru Committee of Yuendumu (Parumpurru Committee), the North Australian Aboriginal Justice Agency (NAAJA), the Northern Territory Police Association (Association), Territory Families, Housing and Communities, Constable James Kirstenfeldt, Sergeant Paul Kirkby, Sergeant Lee Bauwens, Sergeant Paul Kirkby, Superintendent Scott Pollock, Constable First Class Anthony Hawkings and Constable First Class Anthony Eberl.

5.        An electronic brief of evidence with a current index of items totalling 56 pages has been tendered in the proceedings. A copy of the current index is Annexure A to these reasons. Many of the brief items have sub-folders, containing multiple files. It has been estimated that the brief runs to possibly over a hundred-thousand pages.[5] Objections to the ‘receipt’ of evidence have been heard and ruled on as they arise, whether orally or in writing. Transcript of the oral hearings presently stands at close to 5000 pages.

6.        In addition to the events in and around House 511 Yuendumu Community that in the most immediate sense resulted in Kumanjayi Walker’s death, issues covered by the evidence as identified in the submissions of the NTPF include:[6]

(a)	police risk assessments and briefing processes;
(b)	the ‘decoy plan’, initial decision to evacuate, and failure by police to tell community members of Kumanjayi Walker’s death in a timely manner;
(c)	the updating of various NTPF General Orders and policies, and the new police handbook;
(d)	the various use of force options including the use of police dogs, and the use of firearms by police generally and in remote communities;
(e)	the alleged militarisation of policing in the Northern Territory;
(f)	the establishment of CREC, the Aboriginal Liaison Officer (ALO) program, the mentoring program and mutual respect agreements;
(g)	the role of Aboriginal Community Police Officers (ACPO) and ALOs.
(h)	the training of NTPF members including in relation to use of force and matters such as unconscious bias, mental health first aid and cross-cultural training;
(i)	the prevalence (or lack thereof) of racist attitudes within the NTPF;
(j)	efforts by the NTPF to improve leadership and culture;
(k)	the challenges of policing in a remote community, including fatigue;
(l)	the challenges of running a health service in a remote community;

(m) evidence from Territory Families;

(n)	the challenges of running concurrent criminal and coronial investigations;
(o)	the availability of support services and housing standards in Yuendumu, and the importance of such services for diverting young people, like Kumanjayi Walker, from crime;
(p)	police recruitment processes; and,
(q)	although it might be taken to be subsumed by item (j) of the NTPF list, the adequacy of processes for police discipline.

7.        As I said in Ruling No 3,[7] the inquest’s examination of these ‘issues’ is not at large, and the ‘issues’ arise only insofar as they may bear upon my ‘ultimate powers and duties to make findings, comments or recommendations at the conclusion of the inquest under ss 26, 34 and 35 of the Act’ in relation to this death. Where I have ‘received’ evidence on a particular issue over objection, I have explained why I consider there to be a potential nexus between the evidence and the subject matters of ss 26, 34 and 35 of the Act. [8]

8.        Part way through the sittings the Court visited Yuendumu on 14 and 15 November 2022 (the Yuendumu Visit). The sittings were extended to 30 November 2022 and by that date 54 witnesses had given evidence. The inquest was adjourned part-heard and resumed on 27 February 2023 through to 10 March 2023. During those sittings a further 16 witnesses gave evidence, bringing the total to 70. The inquest was again adjourned part-heard.

9.        Since February 2023, only two witnesses remain to give evidence, Mr Rolfe[9] and Sergeant Bauwens. Although both witnesses had been scheduled to give evidence in the 2022 sittings, they objected to giving evidence shortly before they were due to be called on the basis that their answers might tend to expose them to a civil or disciplinary penalty (ie, penalty privilege). I dismissed the objections on 25 October 2022.[10] An application for judicial review was commenced and heard by Justice Kelly on 23 and 24 November 2022. On 12 December 2022 her Honour dismissed the applications.[11] On 5 January 2023 Mr Rolfe filed a Notice of Appeal against Justice Kelly’s decision, with the practical result that he was not able to be called during the February 2023 sittings. The Court of Appeal heard the appeal on 11 April 2023. The Court of Appeal unanimously dismissed the appeal on 28 June 2023,[12] and issued a clarification of its decision on 1 August 2023.[13] Mr Rolfe did not seek special leave to appeal to the High Court.

10.      Allowing for the completion of the appeal process, the expiration of time to lodge an application for special leave to appeal, the availability of a court, and the timetabling of other inquests, the inquest was listed to resume on 23 October 2023 for the two final witnesses to give evidence. As it was desirable to avoid any further delays that might be caused by legal argument, on 21 September 2023 the interested parties were advised that if any interested party wished to make any further applications they were to be filed with supporting submissions by 6 October 2023 and any submissions in response were to be filed by 13 October 2023. It had been hoped that if any applications were forthcoming, a decision could be delivered without disrupting the allocated sitting week.

11.      On 6 October 2023 Mr Rolfe filed an application for recusal, discussed below. Regrettably, and in light of late stage at which the application was made, that was beyond my capacity and the sitting week of 23 October 2023 was vacated. Pending the outcome of this and any further applications, the inquest is presently listed to resume on 26 February 2024 for one week.

The Production Application

12.      On 16 August 2023 Mr Rolfe sought documents under two headings, ‘Materials relevant to the Spotlight Program/NPO’ and ‘Materials relevant to Yuendumu visit’ (the Production Application). Some of the requested documents were provided. In respect of some of the remaining documents, which included correspondence between myself and Counsel Assisting, by email dated 29 August 2023 Ms Walz stated that,

…

(d) while there is no apparent forensic relevance to your request for correspondence between the Coroner and Counsel Assisting, that correspondence is subject to legal professional privilege in any event. (emphasis added)

The application for recusal

13.      By application filed on 6 October 2023 Mr Rolfe invites me to recuse myself on the grounds of apprehended bias. In supporting submissions Mr Rolfe states that he is concerned ‘that the impartiality of the inquest is compromised’ on the basis of a number of matters, assessed cumulatively. The key matters are said to be:

(a)	The conduct of the Yuendumu Visit on 14 and 15 November 2022 and things said by Counsel Assisting and community members during the visit;
(b)	The amendment of a non-publication order on 23 March 2023 (23 March NPO Amendment); and,
(c)	The relationship between Counsel Assisting and the Coroner, in particular, the assertion of a client/legal advisor relationship in correspondence dated 29 August 2023.

14.      Sergeant Bauwens, Sergeant Nankivell and Constable Kirstenfeldt join Mr Rolfe’s application for recusal, and essentially or explicitly adopt his submissions.[14] In these reasons where I refer to Mr Rolfe’s submissions this should, unless stated otherwise, generally be taken to be a reference to the submissions of all of the applicant police officers. To the extent that the officers who have joined the application have raised some limited further arguments, I have done my best to identify and address them.

15.      The WLR families, the Brown family, NAAJA, the Parumpurru Committee, and the NTPF filed submissions opposing the application for recusal.

16.      Counsel Assisting filed submissions on ‘the law and relevant considerations that are raised by Mr Rolfe’s application’. The NTPA submitted ‘that the various concerns raised by Mr Rolfe warrant careful examination and consideration’. Neither the NTPA nor Counsel Assisting submitted in favour of a particular outcome.

17.      Mr Rolfe filed additional submissions on 13 October 2023 concerning the order in which his two applications should be determined. He seeks to have the recusal application determined before a determination on the application for the documents and Sergeant Bauwens joins in this submission. This creates some logical difficulties because the two matters are closely connected, as is demonstrated by Mr Rolfe’s own submissions on the recusal application.[15] However, as Mr Rolfe and Sergeant Bauwens have asked me not to rule on the application for production, I will not do so.

18. Having carefully considered Mr Rolfe’s application for recusal, for the reasons that follow, I am not persuaded that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues arising under the Act. Accordingly, I decline to recuse myself from proceeding with the inquest.

Submissions regarding the timing of Mr Rolfe’s application

19.      More than one interested party was critical of Mr Rolfe for bringing his application shortly before the recommencement of the inquest when it had the potential to result in the sittings being vacated.[16] These interested parties submitted that the delay was objectionable because most of Mr Rolfe’s complaints concerned matters that had occurred months before the application was made.

20.      For example, noting the particulars of Mr Rolfe’s application, the NTPF identified that the application had been brought:

(a)	325 days, or over 10 months, after the Yuendumu Visit;
(b)	185 days, or six months, after Mr Rolfe was dismissed from the NTPF;
(c)	161 days, or over five months, after the Directions Hearing at which the position regarding the 23 March 2023 NPO Amendment was clarified; and,
(d)	100 days, or over three months, after the Court of Appeal dismissed Mr Rolfe’s appeal which had the effect of requiring him to give evidence.[17]

21.      For these and other reasons, the NTPF, represented by Dr Freckelton AC KC and Ms Burnnard, submitted that the current application,

…appear[s] to constitute a further attempt on behalf of Mr Rolfe (and Sergeant Bauwens) to distract from and delay the inquest process. Brought, as they are, immediately before Mr Rolfe and Sergeant Bauwens are scheduled to give evidence from 23 October, in respect of which they have already made unsuccessful objections to giving evidence before the Territory Coroner and in appellate proceedings before a single judge of the Supreme Court and the Court of Appeal of the Northern Territory, they could be seen as the adoption of another forensic tactic and should be found to be without merit. [18]

22.      In addition, the Brown family, represented by Mr Mullins KC and Ms Morreau, submitted that the principles of waiver[19] meant that,

…the unreasonable delay in bringing the objection since November 2022 operates to prevent Mr Rolfe from doing so now. The significant personal and institutional cost that would be incurred should the Coroner accede to the application inclines strongly against such a course.

23.      Similarly, the WLR families submitted that it was ‘difficult to see [the application] as anything other than strategic’, although, ultimately, their position appears to have been that the application should simply be dismissed on its merits.[20]

24.     Mr Rolfe submitted in reply that the criticisms were ‘unjustified’, that his application was ‘premised upon a cumulative sequence of events concerning the conduct of this inquest’ including Ms Walz’s statement made 29 August 2023 regarding legal professional privilege.[21] If that were correct it would appear to amount to a concession by Mr Rolfe that the ‘concerns’ arising from the Yuendumu Visit and the 23 March 2023 NPO Amendment would not, without more, give rise to a reasonable apprehension of bias.

25.      I also have some doubt about Mr Rolfe’s suggestion that he could not bring this application until ‘late August’[22] at the earliest. Mr Rolfe’s original submissions stated that the ‘concerns arising from interactions during the Yuendumu visit’ when coupled with the 23 March 2023 NPO Amendment gave rise to the ‘concern that the impartiality of the inquest is compromised (viewed from the perspective of a fair-minded lay observer).’ [23] Those concerns were not expressed as being dependent on the statement about LPP in Ms Walz’s 29 August 2023 email, as they now seem to be. In response, the WLR families submitted that, ‘presumably because of the spectre of waiver,’ Mr Rolfe’s reply submissions ‘place much greater emphasis on the LPP [legal professional privilege] issue than appeared in [the] earlier submissions.’[24]

26.      This is not the first time another interested party has criticised Mr Rolfe for the ‘lamentably and inexplicably’ late stage at which he has brought key applications.[25] Although I have determined each of these applications on their merits, I have previously made comments about the ‘regrettable timing’ of Mr Rolfe’s applications and observed that, as a matter of fact, their ‘lateness … has disrupted the efficient progress of this lengthy and complex inquest.’[26]

27.      Ultimately, for the reasons that follow, I am persuaded that I do not need to and, therefore, should not determine whether Mr Rolfe’s delay in bringing this application is unjustified or whether the principles of waiver are engaged. Accordingly, I will put these submissions from my mind.

Legal Principles

The test for recusal on the ground of apprehended bias

28.      There was substantial agreement between the parties as to the relevant principles, as well as their application to coronial proceedings.[27]

29.      In QYFM v Minister for Immigration, [28] the High Court considered the principles to be applied when determining an application for recusal on the ground of apprehended bias. Chief Justice Kiefel and Gageler J said:[29]

The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner [v Official Trustee in Bankruptcy] [30] by reference to previous authority and has often been repeated [citations omitted]. The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The “double might” serves to emphasise that the criterion is concerned with “possibility” (real and not remote), not probability.

30.      The application of the test is to be approached in three stages, and requires:[31]

(a)	identification of the factor which is said might lead a judge to resolve the question other than on its legal and factual merits;
(b)	articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and
(c)	assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

31.     The first step requires the identification of some incompatibility, association, conduct or interest. The second step requires an explanation of ‘how the existence of the incompatibility, association, conduct or interest (or other identified matter) might be thought by the fair-minded lay observer possibly to divert the judge from deciding the case on its merits’.[32] The third step must be undertaken after that logical connection has been articulated.[33]

32.      The test is objective, in the sense that it requires a reasonable apprehension that the judicial officer may not decide the case impartially. Moreover, it is not sufficient that the judicial officer is expected to decide the matter in a manner adversely to a party. As Mason J said in Re JRL; Ex Parte CJL: [34]

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”.

33.     The test is ‘founded on the need for public confidence in the judiciary.’[35] Accordingly, a judicial officer should not automatically stand aside when requested to do so as this would amount to an abdication of the judicial function and encouragement of procedural abuse.[36] As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner: [37]

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

34.      Nevertheless, the authorities recognise that a judge who is not persuaded that they are disqualified from continuing to hear a case may decide that it is prudent that they not continue to sit.[38] The rationale for this practice appears to be that, in ‘a case of real doubt’, a decision not to sit could ‘avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification.’[39] In such a case, in determining whether to decline to sit a judicial officer may properly have regard to factors including ‘the stage at which the objection is raised, the practical possibility of arranging for another judicial officer to hear the case, and the public … role of the court before which the proceedings are being conducted.’[40] Given the advanced stage of this coronial investigation, I do not understand any party is submitting that I should cease to investigate the death of Kumanjayi Walker if I am not disqualified from doing so. In any event, I am not satisfied that this is a case ‘of real doubt’.

35.     In addition, the High Court noted in Ebner that as ‘a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying.’[41] While this ‘does not depend simply on whether the judge considers that the matter would not be disqualifying’, the test of ‘“serious possibility” involves some degree of judgment being brought to bear, on which different people may reasonably take different views.’[42]

36.      Finally, the rule against bias is subject to the exception of waiver,[43] which applies ‘with particular force to a party represented by counsel.’[44] In Michael Wilson & Partners Ltd v Nicholls, [45] the High Court said that a party or lawyer who ‘knows of the circumstances’ that can support a bias claim ‘but acquiesces by not taking objection … will likely be held’ to have waived their right to object. [46] Similarly, in Smits v Roach, [47] Kirby J accepted as settled law that:[48]

where a litigant, aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it.

37.      Having noted those authorities, I reiterate that it is unnecessary for me to consider whether the principles of waiver are engaged in this case.

The qualities of a fair-minded lay observer

38.      The construct of a ‘fair-minded lay observer’ provides the ‘standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system.’[49] In QYFM the fair-minded lay observer was described by Kiefel CJ and Gageler J as, in substance, person who is:[50]

(a)	neither complacent nor unduly sensitive or suspicious;
(b)	cognisant of human frailty and aware of the reality that the judge is human;
(c)	understands that information (and attitudes) consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional decision-maker;
(d)	nevertheless taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation will have a greater capacity than most to discard irrelevant, immaterial or prejudicial material and to discharge the judicial function uninfluenced by professional relationships;
(e)	not assumed to have a detailed knowledge of the law or of the character or ability of a particular judge;
(f)	not so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting the apprehension of bias;[51] and,
(g)	aware of the identity of the party asserting bias and the nature and significance of the decision for that party. Hence, an applicant in proceedings seeking the review of a decision to cancel the applicant’s visa ‘might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges.’

39.      Above all, the fair-minded lay observer is also taken to be reasonable and does not make snap judgments.[52] In Johnson v Johnson, Kirby J said that although the fair- minded lay observer was not a lawyer:[53]

Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair- minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

40.      Finally, a fair-minded lay observer is taken to be aware of “the nature of the decision and the context in which it was made[54] as well as to have knowledge of the circumstances leading to the decision.[55]”

The nature of coronial proceedings

41. In light of that final point, it is necessary to say something about the jurisdiction exercised by a Coroner under the Act, and the relationship between a Coroner, her Counsel Assisting and such ‘interested parties’ as are granted leave to appear or be represented under s 40(3) of the Act.

42. These proceedings arise from a death in custody and the Act requires the Coroner to investigate the death[56] and hold an inquest.[57] The inquest forms a part of the investigation.[58] The Coroner bears the sole responsibility for assessing evidence, making findings, and reporting on mandatory and discretionary matters.[59] The inquest must be conducted in accordance with the principles of natural justice.[60]

43. Although a Coroner’s Court shares some features with other ‘courts’, [61] and its functions involve the administration of justice, [62] an inquest is ‘of an investigative nature, quite unlike that which a court undertakes in the ordinary course of things.’[63] Significantly, a Coroner does ‘not adjudicate upon proceedings inter partes’ and any ‘findings which they make do not determine legal rights.’[64]

44.     In addition, and unlike a judge, the Coroner’s inquisitorial and investigative functions commence long before the matter reaches the inquest hearing. These functions are supported by broad investigative powers including those of entry, search and seizure, [65] the giving of directions for autopsies and exhumation,[66] the giving of ‘directions to police officers for the purpose of investigating the death’,[67] and directions requiring the giving of information.[68] Although the inquest must generally be held in public, [69] there is no similar requirement[70] concerning the broader investigative powers. Nothing in the Act suggests that those broader investigative powers cease when the inquest starts.

45.      The unique nature of the coronial jurisdiction was recently discussed by the Court of Appeal in in Rolfe v The Territory Coroner. [71] There, Grant CJ, Barr and Brownhill J noted that: [72]

[53] … Coronial inquests are proceedings which by their very design and purpose eschew the ordinary rules of procedure and evidence in favour of a system directed to discovering the causes, both direct and systemic, of a death or disaster. As Lord Lane observed in R v South London Coroner; Ex parte Thompson:

Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.

[54] Similarly, in Mirror Newspapers Ltd v Waller, Hunt J observed:

The other section of the Coroners Act to which I referred was s33, which provides that the coroner is not bound to observe the rules of procedure and evidence applicable to proceedings before a court of law. The need for such a departure from the rules of procedure is obvious, because an inquest or an inquiry does not have parties, and there are no pleadings, charges or indictments which define the issue to be tried. Although usually there are legal representatives for the interested parties, the coroner must consider the interests not only of those parties but also of other persons as well. It is often left to the coroner himself to maintain a vigilant eye upon the relevance of evidence, and objections to the evidence are not always readily apparent. The absence of defined issues is of paramount importance in relation to this question. Their absence necessarily requires the adoption of different procedures to those applicable to proceedings before the ordinary courts of law.

46.      As a result of the process being ‘much less rigid than a trial proper whether civil or criminal’[73] and the Coroner’s broad discretions as to how to conduct an investigation (which includes the inquest),[74] the Coroner may receive a wide range of information, including information that will ultimately be found by the Coroner to be of ‘little, if any, probative value’.[75] Ultimately, in dealing with any information, the Coroner, who is also a judge of the Local Court, [76] is required by training, tradition and oath or affirmation to act judicially and discard the irrelevant, the immaterial and prejudicial.[77]

47.      Coronial proceedings investigate a death. Family members of the deceased have a positive interest in the conduct of an inquest. [78] The ‘interest’ of family members is not inherently greater or lesser than that of others with interests in the inquest, and their views are not inherently more or less important. But of all the interested parties it is the family who will likely find the process most distressing and traumatic. That is one reason why coronial practice applies principles of therapeutic jurisprudence. The practise is concerned with the well-being of all people who have been affected by the death, but in particular recognises and responds to those who are grieving, who are commonly family.

48.      Family and affected community members are encouraged to attend and participate in inquests. Families, of whatever race or ethnicity, are frustrated when there are inadequate opportunities to participate in the process.[79] Some families require support to meaningfully participate in proceedings in a culturally safe way. One example of meaningful participation is sessions directed to the airing of family impact statements, which have been described as not ‘remotely unusual’.[80] Ultimately, appropriate engagement may take different and flexible forms depending on the needs and circumstances of the family.

49.      Family concerns about a death are likely to be particularly acute when the death is of an Aboriginal man held in police custody. It is important that all stages of the coronial process remain alert to the impacts of institutional and intergenerational trauma and are sensitive to cultural needs and grief. [81] Jurisdictions in Australia are finding ways to engage Aboriginal peoples meaningfully in the inquest process, and to respect and recognise their unique cultural considerations.[82] For example, the Inquest into the death of Tanya Day[83] opened with an acknowledgement of country by a Yorta Yorta Elder and sand from the riverbanks of Dhungalla was poured onto the court bench where it remained until the conclusion of the proceedings, when it was returned to the Dhungalla.[84] Even so, courtrooms may not always be considered a safe or culturally appropriate place for Aboriginal families who have experienced a death in custody.

50.      In recognition that coronial practice should do more to meet the needs of Aboriginal and Torres Strait Islander families, dedicated Aboriginal Engagements Units have been established in Victoria and New South Wales, and have been funded in the Australian Capital Territory, Queensland and Western Australia. [85]

The role of Counsel Assisting

51. Section 41(2) of the Act provides that:

(2)

A coroner:

(a)	may appoint a person to assist the coroner for the purpose of an inquest; or
(b)	must appoint a person to assist the coroner for the purpose of an inquest into a death in custody.

52.      Later in these reasons, I will return to Mr Rolfe’s claim that the ‘assistance’ to which this provision refers is limited to direct assistance ‘with the conduct of an inquest in public’[86] and that it is inconsistent with the text, context and purpose of the Act for Counsel Assisting to provide ‘private and confidential advice’ to a

Coroner. [87]

53.      Beyond recognising that the ‘relationship’ between Counsel Assisting and those they assist ‘could not be said to be analogous to that which exists between counsel and a judge’, [88] there is limited authority on the ‘role’ of Counsel Assisting or his or her relationship with a Coroner. Accepting that the scope of the role may depend on the terms of the statute that creates it, the limited commentary and authority on this topic suggests that Counsel Assisting’s functions include:[89]

(a)	the management and administration of inquiry processes and procedures;
(b)	the development of investigation strategies and investigation programmes;
(c)	working with other investigators to assemble the inquest brief, direct avenues of inquiry, identifying witnesses and assisting them to complete statements;
(d)	an ‘advisory role’ which ‘requires counsel assisting to advise the commissioner on the conduct of hearings’, such as whether they ‘should be conducted initially in private or in public or both’;
(e)	the proper and effective conduct of commission hearings (in public or, as appropriate, in private), including the calling and questioning of witnesses, and the raising and addressing of issues of law that may arise;
(f)	making opening and closing submissions on the evidence, the key issues, and the findings, comments and recommendations that may be appropriate; and,
(g)	within strict constraints, assisting the Coroner in the report writing phase, for instance by providing chronologies and neutral summaries of the facts.

54.      Regarding the report writing phase, in R v Doogan, the Full Court of the Supreme Court of the Australian Capital Territory heard an appeal from an application for judicial review of the decision of a coroner on a ground of apprehended bias (among others). A particular of the apprehended bias ground was that Counsel Assisting, Mr Lasry, had noted in open court that he had set aside time to assist the Coroner in writing the final report. [90] The appellants submitted that ‘any sharing of that responsibility with counsel who had been advocating propositions that were contrary to the interests of the [appellants] would inevitably give rise to a reasonable apprehension of bias.’[91]

55.      The Full Court rejected this submission, and dismissed the ground:[92]

[165] While … a coroner cannot delegate his or her responsibility to weigh
the evidence and make appropriate findings, that does not mean that he or she

must write the report unaided. On the contrary, a coroner is entitled to have counsel assisting or an associate undertake a range of tasks, such as providing a summary of the evidence, an outline of the relevant statutory provisions and references to authorities.

[166] In the present case, the evidence does not suggest that Mr Lasry intended
to trespass into areas that were exclusively the responsibility of the first

respondent, and we are unable to see how the terse note upon which [the appellants’] submissions had been founded could provide any support for the [appellants’] contentions.

56.      Mr Rolfe drew my attention to a decision of the New Zealand Court of Appeal[93] and a decision of the Hong Kong Court of Appeal, [94] which he said contained statements contrary to those in Doogan. [95] He also sought to distinguish a decision of the High Court of England and Wales[96] that, like Doogan, appeared to permit the participation of a commissioner’s assistant in at least an early ‘stage’ of the report writing process.[97]

57.      Ultimately, the issue of whether Counsel Assisting may assist in the preparation of a final report does not arise and nor did Mr Rolfe suggest that it did. In those circumstances, I will not attempt to resolve the differences, if any, between these authorities.

58.      In Doogan the Full Court also noted that although Counsel Assisting should be ‘guided by the overriding principle that their goal is the attainment of justice rather than the achievement of a preconceived objective’, Counsel Assisting has a duty to vigorously test the evidence, and may advance tentative conclusions because:[98]

… justice is not always, nor even usually, attained by a forensically passive approach in which counsel assisting eschew any responsibility to explore particular possibilities actively or to test assertions which may or may not be accurate. On the contrary, coroners are entitled to expect that counsel assisting them will actively pursue the truth and that will almost inevitably involve identifying particular possibilities or tentative conclusions and testing the evidence with a view to determining whether it can be confirmed or discounted.

59.      The rule against bias does not apply to Counsel Assisting but evidence of bias on the part of an assistant may lead to an inference of bias on the part of a Coroner, where the Coroner adopts or condones the assistant’s actions.[99] However, in Doogan, the Full Court also observed that ‘there is no general principle requiring judges and magistrates to intervene whenever counsel is shown to have made some intemperate or otherwise unfortunate remark in relation to the proceedings.’[100]

60.      I will now consider the ‘particulars’ of the application for recusal.

The Yuendumu Visit

Mr Rolfe’s concerns regarding the Yuendumu Visit

61.      Mr Rolfe contends that the Yuendumu Visit provides a ‘background of concerns’ to the 23 March 2023 NPO Amendment. In summary, the ‘background of concerns’ appears to be that:

(a)	Dr Dwyer and I had ochre placed on our foreheads during a scheduled ceremony performed by senior Warlpiri women;
(b)	some community members made comments in the presence of myself and Dr Dwyer to the effect that Mr Rolfe ought to lose his job as a NT police officer and that there was a need for customary ‘payback’, and that Dr Dwyer and I did not immediately, and affirmatively, condemn or disassociate ourselves from those comments;
(c)	Counsel Assisting:

(i)              enquired with community members about how ‘justice’ could be achieved;

(ii)             stated that the views of community members, expressed during the Yuendumu Visit, ‘will be taken into account’;

(iii)           offered to obtain more information for the community in respect of the criminal trial in response to their concerns about the feeling they had of injustice about its processes; and,

(iv)            stated that she ‘understood’ that the community wants justice and ‘We will see what we can achieve together.’

62.      In light of Mr Rolfe’s submissions that he was taken by surprise by these events, I will now discuss the planning for the Yuendumu Visit.

Community engagement and planning for the Yuendumu Visit

63.      The inquest followed a trial and acquittal which had received significant media attention. Some family and community members had expressed their grief about the death, their concerns about the trial process and the justice system more broadly, and these matters were widely reported in the media. It was in this context that at the first directions hearing on 29 March 2022, the trauma and grief suffered by the family and community arising from the passing of Kumanjayi Walker was acknowledged. I said:[101]

While much has been said about this death, I recognise that the family’s and the community’s voices have not yet had an opportunity to be heard and understood. This inquest cannot undo the past. We will, however, provide the family and the community with the opportunity to express their distress, their fears and concerns, and their hopes for the future. We will endeavour to not simply hear them, but to understand them. In a fair and balanced way, we will seek to better understand what happened on 9 November 2019 and why it happened, with the goals of determining the truth and making recommendations which may assist in preventing future deaths in similar circumstances.

64.      As is usual in coronial proceedings, the Counsel Assisting team met with family and affected community members to assist them to engage in the coronial process, to identify any issues or concerns that were important to them, and to identify relevant witnesses. The Counsel Assisting team went to Yuendumu and spoke to community members. In a second directions hearing conducted on 26 May 2022 this process of engagement with family and community members was expressly raised and encouraged. I said:[102]

At the last directions hearing I acknowledged that the families and community's voice had not yet been heard. That remains true. But I understand that some of you have now had the opportunity of meeting my counsel assisting, Dr Peggy Dwyer and Mr Patrick Coleridge. I sincerely thank you for welcoming them warmly into your community over the last few days. We are genuinely seeking to understand and give a voice to your grief and loss and hopes for the future. I understand you have much to share and say and Peggy and Paddy will continue to meet and work with the family and the community to provide a pathway for your full participation in this inquest.

… essential feature of this proceeding and you are very warmly welcomed here today.

65.     Discussions between the parties, the Counsel Assisting team and family and community members continued. These discussions included matters such as how the family and community could be supported to participate in the inquest which was to be held in Alice Springs and not at Yuendumu, the location of the death. Although the Local Court does sit in Yuendumu as part of a ‘bush circuit’, the community infrastructure was insufficient to accommodate extended coronial sittings involving numerous parties. In those circumstances, the possibility of a visit by the Court to Yuendumu was raised by family and community members with the Counsel Assisting team.

66.     Through discussions with the Counsel Assisting team and interested parties, community members extended an invitation to the Court to visit Yuendumu at the commencement of the inquest. The invitation was communicated to all interested parties and noted on the draft witness lists that were circulated on 1 and 5 August 2022 as follows:

Opening of Inquest in Yuendumu. Coroner and parties to meet in Yuendumu to pay respect to Kumanjayi, his family and community and to hear from family and community leaders about aims for inquest. Culture and ceremony to be advised by Yuendumu elders and Kumanjayi’s family.

67.      At a third directions hearing on 15 August 2022,[103] Dr Dwyer informed the Court of the invitation that had been extended by community members, who wished to speak to the Court in Yuendumu in an unhurried and informal way about how they felt. Dr Dwyer made it clear that the visit would not be formal evidence and the possibility of ‘ceremony’ was raised. Although that invitation had been extended, Counsel for the Brown and WLR families submitted that the community was not presently able to facilitate the visit at the outset of the inquest, due to recent community unrest. Accordingly, I decided that the inquest would commence in Alice Springs on 5 September 2022. However, the need for there to be a ‘view’ in Yuendumu at a later stage in the proceedings was raised, together with the possibility that such a visit might provide an opportunity for less formal community engagement. As the inquest was now commencing in Alice Springs, Mr McMahon SC informed the Court that one or more members of the Parumpurru Committee wished to make an ‘opening statement’ and I indicated that I was open to contributions from the community.

68.      There were no objections during the various directions hearings to the proposals for ‘opening statements’ from community members or a visit to Yuendumu at some point in the future to conduct a view and meet with family and community informally.

69.      The ‘final’ draft witness list produced prior to the commencement of the inquest identified that the inquest would commence with informal opening statements from three community members, followed by a presentation by a former employee of the Northern Territory Aboriginal Interpreter Service, Ms Jodie Clarkson, and cultural advisor and interpreter, Ms Valda Naparrula Shannon, on ‘two-way listening’, which explained some of the difficulties associated with interpretation especially concerning legal concepts and practices for which there was no Warlpiri cultural equivalent.[104] During the inquest further steps were taken to enhance cultural competency. These included: engaging an interpreter and cultural adviser, Ms Valda Naparrula Shannon, live streaming into Yuendumu, and providing information via a website, which included Warlpiri interpretations of some parts of the proceedings.

70.      Through their engagement with community members in preparation for the inquest, the Counsel Assisting team identified that there were many longstanding confusions, misunderstandings and misapprehensions on the part of many community members about the inquest. Community members said that they did not know what would happen during the inquest or how it differed from the trial. In an effort to clarify some of these matters, a ‘Community Education Key Messages’ document was produced with the assistance of an interpreter. The information in written English was uploaded to the coronial website, as was a spoken Warlpiri recording of that information. The recording was also played in Alice Springs and Yuendumu over local radio. The written English document is Annexure B.

71.      On 5 September 2022 the inquest commenced in Alice Springs. The community members made their ‘opening statements’ which were not received as evidence. They spoke about issues that were of concern to them and placed those issues in a cultural and historical context.[105] In summary:

(a)	Mr Ned Jampijinpa Hargraves provided some insights into Warlpiri culture, Warlpiri punishment (including spearing through the legs), parumpurru which means justice, the values of yapa (Warlpiri), the need to work together to make a community that is safe for our children and karrinjarla muwajarri (meaning ‘ceasefire’), which was said to reflect the desire of some members of the Yuendumu community that police not be permitted to carry firearms in their community;
(b)	Mr Robin Japanangla Granites described the pain of losing a young Warlpiri life and drew a link between the trauma of Kumanjayi’s death and the trauma suffered by Warlpiri during the Coniston Massacre. He expressed dissatisfaction with the Australian justice system and with some of the reporting in the media of the events and the trial. At the end of his statement, Mr Granites extended a fresh invitation to the Court ‘to come out and sit with Warlpiri elders, and talk to us. We invite you to Tanami Desert, in Warlpiri country, to be part of our culture and lore.’ I indicated that we would ‘work towards finding a way where we can accept that invitation’; and,
(c)	Ms Samara Fernandez-Brown explained the profound impact Kumanjayi’s death had on the community, and its desire not for a particular outcome, but for ‘truth’.

72.      The approach taken at the commencement of the inquest was a sign of respect for and acknowledgement of the culture and country of the deceased, his family and community. As was explained in the two-way listening presentation, by receiving ‘opening statements’ from Warlpiri Elders, the Court demonstrated a respectful acknowledgement of the gerontocracy of the Warlpiri people.[106] Counsel for Mr Rolfe (Mr Edwardson KC and Mr Merenda) and his solicitor (Mr Officer) were seated at the bar table throughout and have not raised any concerns about what occurred.

73.     Discussions continued between the Counsel Assisting team and the interested parties concerning the deferred visit to Yuendumu. On 3 November 2022 a draft schedule for a proposed two-day visit was circulated to the interested parties, a copy of which is Annexure C.

74.      On 4 November 2022, Mr McMahon addressed the Court in respect of the proposed visit. [107] Mr McMahon explained that the Parumpurru Committee was inviting myself and all interested parties to Yuendumu so that the community could speak directly in a way not normally possible in a court proceeding and ‘share their voice about …at least some of the matters that have led to this inquest.’[108] The Court was also told that the community wanted me to listen to them speak about Warlpiri culture and lore including concepts of justice, grieving and sorry business.[109] Mr McMahon explained that it was ‘going to be essentially a listening experience.’[110]

75.      Mr McMahon also outlined a plan for the visit noting that it was not a strict schedule. On the first day he said there would be two welcomes by the Yuendumu Cultural Authority, a visit to House 511 known as ‘Memory House’, a community meeting or ‘what is locally known as a truth telling meeting’, which would involve a microphone being passed around and community members saying ‘what is on their mind’, and possibly some dance and a community barbecue. On the second day there would be a view of locations relevant to the inquest and a general orientation of Yuendumu. There would then be a ‘yarning circle’. He said that things might go ‘unexpectedly in some conversations.’[111] Mr McMahon made it clear that what was said would not be recorded or received as evidence.[112]

76.     Mr McMahon extended ‘a genuine invitation…to all the lawyers here and encourage[d] them to come’.[113] At the conclusion of the explanation and invitation interested parties were invited to respond but none chose to do so and no objections to either the visit or the proposed plan were raised.

77.     On 12 November 2022, Ms Hollway (solicitor for the Parumpurru Committee) emailed all parties to advise, as a matter of procedural fairness, that it was now proposed that some parts of the events of the visit to Yuendumu would be recorded. Apparently a local media organisation ‘PAW Media’, wished to record some parts of the visit for posterity. Ms Hollway stated ‘we do not of course anticipate such recordings going to matters which might be regarded as disputed facts. Rather, they may go to areas of cultural knowledge of value to the inquest’. If at some stage any of the recordings were sought to be tendered Ms Hollway noted that this would be addressed in the usual way in court (that is, with an application, submissions and, if necessary, a ruling). However, since the visit there has been no application that any of the recordings be tendered.

78.      On 13 November 2022, the final plan for the Yuendumu visit was circulated to the parties, a copy of which is Annexure D to these reasons. It specified that on the first day there would be a cultural welcome from the Senior Men, followed by a cultural welcome from the Senior Women.

79.      Mr Rolfe did not and has not objected to the visit or what was planned for the visit. His lack of objection together with the engagement of the interested parties in the visit itself, including by Mr Officer on behalf of Mr Rolfe, indicates an acceptance by all interested parties of the visit being an appropriate part of the coronial process.

The conduct of the visit and consideration of Mr Rolfe’s ‘concerns’

80.     The two-day visit ran largely consistent with the plan. The only significant variations were that I visited House 511, ‘Memory House’, on the first day instead of the second day. On day two, there was insufficient time to visit the pool or the grave site as planned and a “cleansing” ceremony was performed with native plants at the police station.

81.      Although the plan was substantially followed, the application for recusal is raised in respect of some things that are said to have occurred during the visit. Significantly, Mr Rolfe’s ‘concerns’ arise in circumstances where his legal representative, Mr Officer, was present on Day 1 of the visit, but chose not to remain for Day 2. There is no evidence that Mr Officer took any steps to inform the Counsel Assisting team that he had decided to leave Yuendumu. I do not recall when I became aware of his absence on Day 2.

Day 1 (14 November 2022)

82.      As planned, the day commenced with a cultural and formal welcome by the Senior Men. This welcome was conducted by way of singing, clap sticks and spears, observed by myself, Counsel Assisting and all those attending. At the conclusion of the welcome Counsel Assisting and myself were introduced to and shook hands with the men that were present and I expressed my condolences for their loss.

83.      Following the men’s ceremony myself, Counsel Assisting, and all those attending were welcomed by the Senior Women. This welcome included myself and Dr Dwyer (and some other women) having ochre applied to the forehead by a Female Elder who I had not previously met, and who was introduced to me as Kumanjayi Walker’s mother.

84.      Counsel Assisting and myself were then introduced to and shook hands with each of the women present and I expressed my condolences for their loss. A photo of Counsel Assisting being introduced to and shaking hands with a Senior Female is also annexed to the application for recusal. We were then escorted to House 511, ‘Memory House’, by some of the women.

85.      Concerning the first day, the first ‘concern’ is that ochre was applied to my forehead by the mother of the deceased. The second ‘concern’ is said to be a photo of Counsel Assisting ‘holding the hand of a community member’. Mr Rolfe’s submissions give the impression that his legal representatives learned of these matters from the photographs published in the media which he annexed to his application.[114] They do not acknowledge that each of these events occurred in full view of Mr Officer who was standing with a further 20 or more legal representatives some metres away, having accepted the invitation to participate.

86.      Both the ochre and the ‘hand holding’ occurred in accordance with the plan for a cultural welcome by Senior Women. In contrast, the cultural welcome by Senior Men, conducted with song, clapsticks and spears, does not cause Mr Rolfe concern. Why one form of welcome gives rise for concern, but the other does not, is unexplained.

87.      Kumanjayi Walker’s biological mother is deceased. I understood that the Senior Woman who placed ochre on my forehead was his mother in a cultural way. In any event, I was not concerned as it is not unusual in coronial proceedings to meet family members of the deceased, engage with them in culturally appropriate ways, and express condolences to them, and that was one of the purposes of the visit.

88.      The description of Counsel Assisting ‘holding hands with a community member’ is disingenuous. Following each ceremonial welcome myself and Counsel Assisting were introduced to, shook hands with, and expressed condolences to all the community members present, both men and women. All of these greetings occurred in the presence of Mr Officer. One of those greetings was to an elderly lady in a wheelchair. Dr Dwyer ‘shook hands’ with this frail lady by gently taking her right hand and she leaned in to speak in a sensitive way. Why one such greeting gives rise for concern, and yet none of the others does, is unexplained.

89.      A fair-minded lay observer would have understood, and Mr Rolfe knew, that the visit provided an opportunity for cultural welcomes and for family and community members to meet myself and the Counsel Assisting team. A fair-minded lay observer would appreciate that, by permitting our foreheads to be painted in ochre and by greeting community members in full view of all of the interested parties, myself and Dr Dwyer were simply respectfully receiving the cultural welcome that was being extended to us.

90.      In my view, these ‘concerns’ fail at the first, second and third stage of the Ebner test. I am not persuaded that Mr Rolfe has identified any relevant ‘incompatibility, association, conduct or interest’. Nor has Mr Rolfe articulated how my participation in one discreet aspect of the welcome ceremonies, and the ‘shake of one hand by Counsel Assisting, might cause me to deviate from making findings or recommendations on their legal and factual merits. That is to say nothing of the reasonableness of any such apprehension.

Day 2 (15 November 2022)

91. Mr Rolfe is concerned about certain things community members said and certain responses by Counsel Assisting. Noting that Mr Officer chose not to attend the second day of the visit, Mr Rolfe’s concerns arise from his understanding of events as described in reports in the media, from photos depicted in the media which are annexed to his application, and from a review of audio recordings of events provided by the Coroner’s Office. The general tenor of those concerns is set out above at [61].

92.      Before responding to those concerns, I note that Mr Rolfe complains that he had ‘no forewarning’ that there was a ‘potential’ that the family of Kumanjayi Walker, and the broader community of Yuendumu, might express views about the events that led to Kumanjayi’s death, a desire for ‘payback’, perceptions of the processes adopted during the criminal trial, or other ‘contentious issues’ that had arisen in the inquest.[115] This is said to have occasioned him ‘prejudice’.

93.      I do not accept this. During his outline of the anticipated visit, Mr McMahon emphasised that there would be no strict schedule of events, or ‘defined list of issues’ for discussion, and that things might go ‘unexpectedly in some conversations.’ The matters complained of had already been raised by community members during their opening statements, in media reporting, and in some sworn evidence.[116] In those circumstances, it was readily understood that Mr McMahon’s reference to ‘discussions about matters that have led to the inquest’ could cover a broad range of topics which were important to the Elders, including topics specific to Mr Rolfe, payback and spearing, and concerns about the trial, even if those topics fell outside the issues to be resolved in the inquest. Indeed, on Day 1 many of the same issues were discussed in Mr Officer’s presence during the ‘truth telling session’ and these discussions have not given rise for concern. Ultimately, Mr Rolfe should have, and any fair-minded lay observer would have, anticipated that the family and community of Kumanjayi Walker may wish to express views about these matters.

94.      In any event, I do not accept that the mere fact that community members expressed their views about such matters, in my presence, might cause a fair-minded lay observer to reasonably apprehend that I might not impartially determine the issues arising at the inquest. The Yuendumu Visit was, as Mr McMahon explained, ‘essentially a listening experience’. That is what I did. A fair-minded lay observer would understand that it is normal, especially for a person with judicial training, to listen to someone express grief, or anger, without being ‘overborne’ by those expressions. It was on that basis that an apprehended bias application was dismissed, in comparable circumstances, by the Supreme Court of Victoria in Kontis v Coroners Court of Victoria. [117]

95.      Additionally, as NAAJA submitted, the vast majority of the information discussed during the Yuendumu Visit, including the statements giving rise to Mr Rolfe’s concerns, has not only been traversed in the media,[118] but has regularly been raised in open court in the inquest, whether in evidence or otherwise.[119] For example, the transcript records statements about some community members’ desire for payback by spearing;[120] the community’s views of what have been described as ‘racist’ text messages;[121] the community’s concern that Mr Rolfe is still a member of the police force;[122] and the community’s difficulty in understanding why evidence heard in the inquest was not heard at the trial.[123] Mr Rolfe does not raise any complaint in respect of those statements.

96.      Nor do I accept that the statements made by Counsel Assisting during the yarning circle give rise to a reasonable apprehension of partiality on her behalf, let alone that any such apprehension could be imputed to me. On this point, the main complaint appears to be that Dr Dwyer told the community that she ‘understood’ certain of their concerns, that the community’s views would be ‘taken into account’, and that she ‘actively enquired’ about the community’s views of ‘justice’, which was of ‘particular concern’. [124] In my view, these submissions take many of Dr Dwyer’s statements out of context and ‘imput[e]’ to the fair-minded lay person ‘a propensity to draw the most sinister of implications.’[125]

97.      For example, a fair-minded lay observer would understand that many of Dr Dwyer’s references to ‘justice’ were an attempt move the discussion away from Mr Rolfe and towards more restorative forms of justice. After referring to statements made the day before (in the presence of Mr Officer) about ‘justice’ and ‘payback’, Dr Dwyer asked,

If you put spearing to one side, is there anything else that payback or justice could involve? For example, are there better services for the community? Is there more things that you would like that would be part of justice that you could tell us about?

98.      Similarly, I reject the suggestion that Dr Dwyer’s comments were ‘liable to create an impression that the purpose of the inquest is to meet concerns expressed by the Yuendumu community.’ For Dr Dwyer to tell Kumanjayi Walker’s family, and community, that their views will be ‘taken into account’ or that they were being ‘understood’ did not convey that those views will be accepted, or preferred, or transform those views into ‘evidence’. A fair-minded lay observer would understand these comments for what they were: an attempt to reassure the community of Yuendumu that the inquest was committed to considering the issues arising at the inquest from all perspectives, including theirs.

Submissions regarding the recordings of the Yuendumu Visit

99.      Much of the remainder of Mr Rolfe’s submissions on the Yuendumu Visit are concerned with his request for, and the Counsel Assisting team’s provision of, an audio-recording of some of the visit. It is not entirely clear how Mr Rolfe presses this issue on the recusal application, in circumstances where I have not ruled on his entitlement to this material, and where he objects to me doing so before I have determined the recusal application. However, in light of Mr Rolfe’s submission that there has been a ‘lack of transparency’ about what occurred during the Yuendumu Visit it is necessary to make some observations.

100.    As it was never intended that the visit to Yuendumu would form part of the evidence in the inquest, there were no formal arrangements to record the proceedings. Ms Hollway for the Parumpurru Committee advised the parties that ‘PAW Media’ had decided to record some of the events.[126] A number of larger, or national, media organisations were also present and I understood they were permitted to record some events. There is no evidence that Mr Rolfe has made any request of those organisations for their recordings.

101.   From the Court’s perspective, a decision was made to attempt to capture audio of the main community gatherings in the event it might prove useful for other purposes, such as academic research. I am not aware of this being advertised to the parties. Arrangements for this purpose were unsophisticated and involved a junior court officer operating a small hand-held recording device. Unfortunately, because the court officer walked, or was seated, in close proximity to me, the recordings often captured private and irrelevant conversation between myself, Counsel Assisting and the court officer, including at times when I did not know I was being recorded.

102.   On 19 November 2022, Mr Officer requested copies of:

(a)	all video recordings of 14 and 15 November 2022;
(b)	all audio recordings of 14 and 15 November 2022; and,
(c)	all notes taken on 14 and 15 November 2022.

103.   On 14 February 2023, Ms Walz substantially agreed to Mr Officer’s request. I set out her email in full:

Dear colleagues,

As requested by some parties, I advise that I have just uploaded the following material to the electronic brief (in folder “Yuendumu visit recordings”):

1.          “Yuendumu time log”: the notes taken by the Coroner’s clerk as typewritten by the Coroner’s clerk. We are advised that these are a true copy of the handwritten notes; indeed, as you will see, they have not been edited to remove errata, or notes by the clerk to herself;

2.          Those parts of the audio recording of the visit to Yuendumu that were understood by the parties to be appropriate for recording, that is, public discussions/ceremony, edited to remove private conversations between the Coroner and other persons, such as her legal team (emphasis added). The recordings cover:

1.	The public ceremonies on the morning of Monday 14 November 2022 (“Yuendumu 14 November 2022 – part 1”);
2.	The public forum or “Community Truth Telling Meeting” on the afternoon of Monday 14 November 2022 (“Yuendumu 14 November 2022 – part 2”);
3.	The public forum or “Yarning Circle” on the morning of Tuesday 15 November 2022 (“Yuendumu 15 November 2022”).

3.          The document entitled “Coroner’s Visit to Yuendumu”, which was kindly prepared by the Parumpurru Committee setting out what would take place, and which was distributed prior to the Yuendumu visit. We note that there was no opposition, or alternative suggestion from any party.

4.          Relevant email correspondence between the parties about the visit, and the transcript of the discussion of what would take place, and what would be recorded, as outlined by Mr McMahon SC on 4 November 2022, which confirmed, without objection from any party, that, beyond the public ceremony and forums, the visit to Yuendumu was not anticipated to be the subject of ‘recording’. We note that that was the basis upon which each party was invited, and indeed encouraged, to attend all aspects of the Coroner’s visit to Yuendumu.

With respect to the matters that were recorded, we note the specific comment by Ms Hollway on behalf of Parumpurru that: “We do not of course anticipate such recordings going to matters which might be regarded as disputed facts. Rather, they may go to areas of cultural knowledge of value to the inquest.”

Please note that the Counsel Assisting team does not propose to tender any recordings from the Yuendumu visit, given that the statements made are not being received as evidence and do not bear upon the Coroner’s determination of any contentious factual issues in the inquest.

If you have any difficulties accessing the material in the Sharepoint folder, please get in touch with [the Coroner’s clerk] or me.

Kind regards,
Maria

104.    On 15 February 2023, Mr Officer wrote to Ms Walz, asking her to confirm that the recordings had been edited and if so, when, how, by whom, and on what basis. He also asked Ms Walz to confirm whether the Coroner’s Office was in possession of any video recordings.

105. On 17 February 2023, Ms Walz responded as follows (emphasis added):

Good afternoon Luke,

Thank you for your email below.

I can confirm the assisting team is not in possession of any video recordings of the Yuendumu visit.

Parties have been provided with audio recordings of the three significant public forums that took place at the Yuendumu visit. As indicated below, editing was conducted by the assisting team to remove irrelevant or private conversations, including those between the Coroner and her legal team. The edited portions are short and typically last less than a minute.

In relation to your question about the legal basis for editing, I note that the Coroner’s visit to Yuendumu was not conducted to take evidence or form part of the Coroner’s determination of contentious evidence in the inquest. The recordings will not be tendered by the assisting team. It was made clear in advance of the hearing that private conversations would not be recorded.

If there is some concern about the editing process, the Coroner is open to a written request to obtain a transcript so that the length and reason for each edit can be identified with more precision; however, I note that such a process would involve some significant time and expense and that it is unconventional for transcripts to be made of coronial views and cultural learning events which do not form part of the evidence before the Court. (emphasis added)

I hope this is of assistance. I am able to discuss the matter further if you consider it necessary.

Kind regards,
Maria

106.    Mr Rolfe did not express any further concern about the editing process, nor request that the Court obtain a transcript. He sent no further correspondence on the issue until 16 August 2023, some six months later, when he provided the parties with the Production Application.

107.   Ultimately, and in circumstances where Mr Rolfe has expressly objected to me ruling on the Production Application, the most I can say is that a fair-minded lay observer would not be surprised that Counsel Assisting edited the recordings so that they did not capture irrelevant and private conversations. As NAAJA noted, while this was in no way a ‘court transcript’, ‘a fair-minded lay observer would also be aware that court transcripts normally do not capture bar-table conversations – or conversations of a judge over the bench to their associate – and when they do, they are regularly removed by transcribers.’ The fair-minded lay observer’s view would be fortified by the expressed willingness to provide further information about the edits, and even to put the Court to the expense of ordering a transcript, if a request was made. But no such request was made.

The Amendment of the non-publication order on 23 March 2023

108.   Mr Rolfe’s next concern is the 23 March 2023 NPO Amendment. This was an amendment to an existing NPO, dated 24 November 2022 (the 24 November 2022 NPO). The effect of the amendment was to clarify that the November 2022 NPO was not intended to, and did not, prevent the Professional Standards Command (PSC) of the NTPF from using material contained in the coronial brief for the purpose of its statutory functions.

109.   Mr Rolfe objected to the amendment in circumstances where the interested parties had not been notified in advance of the intention to amend the NPO, and now complains that the amendment on 23 March 2023 and the failure to notify the parties in advance gives rise to an apprehension of bias. He speculates about my motives for making the 23 March order.

20-23	Musharbash, Yasmine “Yuendumu CDEP: The Warlpiri work ethic and Kardiya staff turnover” 2004 in The Indigenous Welfare Economy and the CDEP Scheme, ed F. Morphy and W.G. Sanders, 153-165. ANU Press
20-24	Musharbash, Yasmine Yuendumu Everyday: Contemporary life in remote Aboriginal Australia 2008 Aboriginal Studies Press

Page 50 of 53

Inquest into the death of Kumanjayi Walker (Ruling No 8) [2023] NTLC 025 Annexure F

20-25	Musharbash, Yasmine “Warlpiri fears/whitefella fears: Ways of being in Central Australia seen through an emotion” 2009 Emotion Space and Society 3 (2010) 95-102
20-26	Musharbash, Yasmine “‘Only whitefella take that road’: Culture seen through the intervention at Yuendumu” 2010 in Culture Crisis: Anthropology and Politics in Aboriginal Australia, ed. John Altman and Melinda Hinkson, 212-225
20-27	Musharbash, Yasmine “Monstrous Transformations: A Case Study from Central Australia” 2014, in Monster Anthropology in Australasia and Beyond, ed. Yasmine Musharbash and Geir Henning Presterudstuen, 39-55. Palgrave Macmillan New York
20-28	Musharbash, Yasmine (2017) “Telling Warlpiri Dog Stories”, Anthropological Forum, 27:2, 95-113,
20-29	Musharbash, Yasmine “A Story in and on Signs: Making Resistance and Acquiescence Legible as Forms of Resilience” 2019, in Pacific Realities: Changing Perspectives on Resilience and Resistance, ed. Laurent Dousset and Melissa Nayral, 23-43. New York and Oxford: Berghahn
20-30	Musharbash, Yasmine “An Introduction in 3 parts: Anthropological perspectives on the shooting of Kumanjayi Walker” 2022 The Australian Journal of Anthropology special edition
20-31	Pawu-Kurlpurlurnu WJ, Holmes M and Box L. 2008. Ngurra-kurlu: A way of working with Warlpiri people, DKCRC Report 41. Desert Knowledge CRC, Alice Springs
20-32	Perera, Suvendrini and Pugliese, Joseph “Death in a Dry River: Black Life, White Property, Parched Justice” 2011) Somatechnics 1.1: 65-86
20-33	Razack, Sherene H. “Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine” 2020 Feminist Legal Studies 28:1-20
20-34	Redmond, Anthony “Military policing and labour extraction in the north-west Kimberley” 2022 The Australian Journal of Anthropology special edition
20-35	Scarfe, Liz “Erasing Trauma – Erasing Indigeneity: How the settler colonial state erased Warlpiri trauma in the wake of the police shooting of Kumanjayi Walker” 2022 The Australian Journal of Anthropology special edition
20-36	Vaarzon-Morel, Petronella “Hope in a time of world-shattering events and unbearable situations: policing and an emergent 'ethics

Page 51 of 53

20-37	Fetal Alcohol Spectrum Disorder (FASD): An update on police and	2022
practice in Australia

Other

20 – 38	Australian Institute of Criminology report – Deaths in custody in	2021
Australian 2020-2021
20 – 39	Australian Institute of Health and Welfare – Hearing health	2021
outreach services for Aboriginal and Torres Strait Islander children in the Northern Territory July 2012 to December 2020
20 – 40	Human Rights Commission – Indigenous deaths in custody 1989-
1996 Profile – Male 48 died 28 April 1990, Elcho Island NT
20 – 41	KORF, Jens – article “Ear health and Hearing Loss” – Creative	20 MAR 2020
Spirits
20 – 42	NT Health “Hearing loss is preventable”	03 MAR 2020
20 – 43	PANTHEE, Madhu Yuendumu Peace Mission Presentation
20 – 44	Senate Report “The People behind 000: mental health of our first	FEB 2019
responders”
20 – 45	Root Cause Analysis (RCA) - Department of Health responses to a	14 JAN 2021
Critical Incident in Yuendumu in November 2019
20 – 46	7New Spotlight - Life and Death (45m56s) – recording
20 – 47	7New Spotlight - Life and Death (45m56s) – transcript
20 – 48	7News Spotlight - The Trial of 'Killer' Cop Zachary Rolfe (35m53s) – recording
20 – 49	7News Spotlight - The Trial of 'Killer' Cop Zachary Rolfe (35m53s) – transcript
20 – 50	7News Spotlight Footage video 1
20 – 51	7News Spotlight Footage video 1 – transcript
20 – 52	7News Spotlight Footage video 2
20 - 53	7News Spotlight Footage video 2 - transcript
20 – 54	7News Spotlight Footage video 3

Page 52 of 53

Inquest into the death of Kumanjayi Walker (Ruling No 8) [2023] NTLC 025 Annexure F

20 – 55 7News Spotlight Footage video 3 – transcript

Page 53 of 53

1.          Birth name of K Walker

2.          Information concerning K Walker’s juvenile criminal history

3.          The image or likeness of witness Claudia Campagnaro in connection to any reporting, commentary, broadcast, media or social media posts or comments concerning the Inquest into the Death of Kumanjayi Walker or Constable Zachary Rolfe

4.          The names XZ, BB and “Officer B” referred to in the evidence of Claudia Campagnaro at T2791

5.          The name of the friend of Claudia Campagnaro who participated in a recorded conversation with police on 14 October 2020, or any information that may identify her

6.          The name and image of Master TG, who was arrested by Cst Rolfe on 11 August 2011

7.          The name and image of Master CW, who was arrested by Cst Rolfe on 1 April 2019

8.          The names of any victims of domestic violence alleged to have been committed by Kumanjayi Walker, and any information that may tend to identify them

9.          The names of any alleged perpetrators or victims of domestic violence to which Kumanjayi Walker was exposed as a child, and any information that may tend to identify them

10.        The name of the person D“C”C referred to in the evidence of Cst Rolfe at T3267

11.        The information redacted from MFI C by Counsel Assisting

12.        In relation to the application on behalf of Cst Kirstenfeldt:

(a)	Paragraphs [5] and [20] of the submissions filed on behalf of Constable James Kirstenfelt dated 17 October 2022;
(b)	Paragraph [2](b) of the submissions filed on behalf of the Northern Territory Police Force dated 21 October 2022;
(c)	The evidence of Constable James Kirstenfelt given on 20 October 2022 regarding his mental health;
(d)	The report of Ms Angela Lebar dated 30 August 2022

13.        Application and granting of s38 certificate on 6 March 2023

14.        Information or photographs that would identify children depicted in the Facebook live videos 4- 18A, 4-19, 4-20, 4-22, 4-23, 4-25, 4-26, 4-27 and 4-28

17.        The names of the recipients of the SMS/MMS messages sent from Constable Rolfe at 1:08am and 1:10am on 25 September 2019, containing a video of bodyworn video of an incident in Todd Mall on 24 September 2019

18.        Sensitive images of K Walker recorded after he was shot on 9 November 2019 (including images of him receiving treatment and of immediately after his passing). In particular, the sensitive images contained in Ex 4-1 BWV:

• Donaldson 3 of 5

• Eberl 2 of 4

• Eberl 3 of 4

• Eberl 4 of 4

• Hawkings 3 of 10

• Hawkings 4 of 10

• Kirstenfelt 2 of 2

• Rolfe 2 of 4

19.        The part of the recorded statement of Claudia Campagnaro dated 19.08.20, which is contained in the final paragraph of p18 and the entirety of p19 of the transcript of that recorded statement

20.        The following brief items:

(a)	3-1 NT Police Recruitment File reference check- Corinne Smith
(b)	3-2 Email Correspondence and certificates- Trojan Securities (12p)
(c)	3-3 Statement Sgt Kevin Agnew 23 Jan 2020
(d)	3-4 NT Police Application- Rolfe
(e)	3-5 Statement Superintendent Sharma
(f)	3-6 AIFP Psychiatric profiling Report
(g)	3-7 NT Police Interview Panel recommendations
(h)	3-8 NT Police Interview Notes

(i)        3-25 Career Review - Const Zachary ROLFE

(j)	3-35 Email corro – Comd Currie – SSgt Williams
(k)	3-36 IRT Induction Course – Joining Instructions
(l)	3-37 TRG Training records
(m)	3-38 PROMIS Case Note Entry – 8854742
(n)	3-39 TRG Training Transcript
(o)	3-40 TRG Training Transcript
(p)	3-41 TRG Training Transcript
(q)	3-42 Load Bearing Vest – Business Case
(r)	3-43 Patrol Riffle – Business Case
(s)	3-44 Operation Moor Review
(t)	3-45 ABC News – militarisation of police
(u)	3-46 Ben Beede – Paramilitary and Militarized Police

(v)       3-47 Soldiers as Police Officers Police Officers

(w) 3-48 David Baker, Crime Law Society, 2009

(x)       3-49 Rolfe Bath Street Medical Centre records

(y)	3-50 Pharmaceutical Benefit Scheme records
(z)	3-50A NT Police recruitment file for Zachary Rolfe (88p)
(aa)	3-51 Vic Pol Recruitment Correspondence
(bb)	3-52 Email from Inspector Caroline West, Victoria Police 20 May 2020
(cc)	3-53 Statement Caroline West, Victoria Police 25 June 2020
(dd)	3-54 Extract of Rolfe’s application for Victoria Police
(ee)	3-55 Email Giannulidis Victoria Police – no criminal history 5 June 2020
(ff)	3-56 Expression of Interest for Queensland Police 1 February 2016
(gg)	3-57 Email Terry Poole – QLD Police – no intelligence holdings (6p) 9 June 2020
(hh)	3-58 QLD Police Report – involving Rolfe – 23/12/2011

(ii)       3-58A Email from Stephen Quinn QLD Police 23 June 2020

(jj)	3-59 WA Police application 2 February 2016
(kk)	3-60 Email Manju Subramanian, WA Police re nil criminal history 5 June 2020
(ll)	3-61 Email Marianne Walker, AFP – no outcomes 8 June 2020

(mm) 3-62 Email Judith Crowley, SA Police – infringement only 5 June 2020

(nn)	3-63 Email Brett Walsh, Tas Police – no record 5 June 2020
(oo)	3-64 EVANS, Tracey (14p) (ADF) 12 June 2020
(pp)	3-64A ADF Employment application extract (1p) 21 January 2010
(qq)	3-64B ADF Service History (7p) 17 December 2019
(rr)	3-64C ADF Service Certificate (1p) 3 May 2015
(ss)	3-64D ADF Conduct record (98p)
(tt)	3-64E Department of Defence Application for special Forces (4p) 28 August 2014
(uu)	3-64F Special Operations Command Application
(vv)	3-159 PAYNE, STEPHEN–statement (40p) 29 April 2022

(ww) 3-160 PHAM, William (AFP)–statement (3p) 18 March 2021

(xx)     3-161 Apple iPhone Xs (A1920) extraction report –redacted (8047p), Images and videos

(yy) 3-165 NT Police Internal Investigation Intinv2020-001 - 12 October 2019

(zz) 3-166 NT Police Internal Investigation IntInv2020-033 - 18 February 2019

(aaa) 3-167 NT Police Internal Investigation Intinv2021-006 - BWV dissemination
(bbb) 3-168 PROMIS Summary 9072699 8 September 2019
(ccc) 3-169 AXON_Body_2_Video_2019-09-08_0417 8 September 2019
(ddd) 3-170 AXON_Body_2_Video_2019-09-08_0418 8 September 2019
(eee) attachment to Ex 7-69 – list of children of interest

(fff) 10-11 McFARLANE, Professor Alexander 15 July 2020

(ggg) 20-50 7News Spotlight Footage video 1
(hhh) 20-51 7News Spotlight Footage video 1 – transcript

(iii)      20-52 7News Spotlight Footage video 2

(jjj) 20-53 7News Spotlight Footage video 2 - transcript

(kkk) 20-54 7News Spotlight Footage video 3

(lll)      20-55 7News Spotlight Footage video 3 – transcript

[1]          Coronial Memorandum of Commander David Proctor APM dated 31 August 2021 (Brief ID 1-1A).

[2]          Draft Coronial Memoranda of Superintendent Pollock dated between November 2020 and January 2021 (Brief IDs 1-2, 1-3, 1-4, 1-5, 1-6).

[3] Coroners Act 1993 (NT), s 41(2)(b).

[4]          See eg, Finding into death with inquest of Veronica Nelson (COR 2020 0021) [2023] VicCorC 28312.

[5]          Transcript of Proceedings on 13 September 2023, 368; Transcript of Proceedings on 21 November 2023, 3517.

[6]          Submissions of the NTPF dated 13 October 2023, [18].

[7]          Inquest into the death of Kumanjayi Walker (Ruling No 3) [2022] NTLC 019, [21]-[30]; see also Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 017, [9].

[8]          See eg Ruling No 2 [2022] NTLC 017, [34]-[38] (evidence of text messages) and [49]- [54] (evidence of Claudia Campagnaro); Ruling No 3 [2022] NTLC 019, [40]-[48] (dishonesty and recruitment), [49]-[71] (discriminatory attitudes), [72]-[77] (use of force and disciplinary history), [78]-[82] (drug use and procedures for drug and alcohol testing), [83]-[88] (possibly contamination of evidence of death).

[9]          Hereafter referred to as Mr Rolfe as he is no longer a member of the Northern Territory Police Force.

[10]         Inquest into the death of Kumanjayi Walker (Ruling No 5) [2022] NTLC 024. Strictly speaking, Ruling No 5 concerned an objection by Sergeant Kirkby. However, as I noted at [6] of Ruling No 5, during the course of argument on Sergeant Kirkby’s objection, counsel for Mr Rolfe and Sergeant Bauwens supported Sergeant Kirkby’s objection and flagged that similar objections were likely to be taken by their clients. It was this ruling that was the subject of review in the Supreme Court and Court of Appeal.

[11]         Bauwens v The Territory Coroner [2022] NTSC 92.

[12]         Rolfe v The Territory Coroner [2023] NTCA 8.

[13]         Rolfe v The Territory Coroner [2023] NTCA 8.

[14]         Submissions of Sergeant Nankivell and Constable Kirstenfeldt dated 12 October 2023, [1]. Sergeant Bauwens advised the Court, by emails from Ms McNally dated 12 and 17 October 2023, that he ‘adopts the submissions’ in chief and reply of Mr Rolfe.

[15] See, in particular, Submissions of Mr Rolfe dated 6 October 2023, [105]-[114].

[16]         On or before 20 October 2023, Mr Officer, on behalf of Mr Rolfe, advised the interested parties that, ‘a review will be filed immediately in the event Mr Rolfe’s application is refused, and a stay [of the inquest] will be sought’: Supplementary Submissions of the WLR families dated 20 October 2023.

[17]         Submissions of the NTPF dated 13 October 2023, [8].

[18]         Submissions of the NTPF dated 13 October 2023, [4].

[19]         See, Submissions of the Brown family dated 13 October 2023, [19], citing Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, [84].

[20] Submissions of the WLR families dated 13 October 2023, [13], [38]-[39].

[21] Reply Submissions of Mr Rolfe dated 17 October 2023, [13]; see also, [14].

[22]         Reply Submissions of Mr Rolfe dated 17 October 2023, [13].

[23]         Submissions of Mr Rolfe dated 6 October 2023, [6].

[24]         Supplementary Submissions of the WLR families dated 20 October 2023, [10].

[25] See eg, Submissions of NAAJA dated 11 September 2023 (on Mr Rolfe’s objections to ‘issues’ and evidence), [3]; Submissions of the WLR families dated 7 September 2023 (on scope of ‘issues’), [2]; Submissions of NAAJA dated 28 September 2023 (on Mr Rolfe’s further evidentiary objections), [3]-[13].

[26]         See, Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 017, [6]-[7]; Inquest into the death of Kumanjayi Walker (Ruling No 3) [2022] NTLC 019, [7]-[9].

[27]         As to which, see R v Doogan; Ex parte Lucas Smith (2005) 1 ACTR 1 at [10].

[28] (2023) 97 ALJR 419.

[29]         QYFM (2023) 97 ALJR 419, [37].

[30] (2000) 205 CLR 337.

[31]         QYFM (2023) 97 ALJR 419, [38] (Kiefel CJ and Gageler J).

[32]         QYFM (2023) 97 ALJR 419, [81] (Gordon J).

[33]         Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8].

[34] (1986) 161 CLR 342, 352.

[35]         Johnson v Johnson (2000) 201 CLR 488, [12].

[36]         Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294; Re JRL, Ex Parte CJL (1986) 161 CLR 342, 352.

[37]         Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [19].

[38]         Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [20].

[39]         Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [20].

[40]         Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [21].

[41]         Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [69].

[42]         Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275, [113].

[43]         Smits v Roach (2006) 227 CLR 423, [43] (Gleeson CJ, Heydon and Crennan JJ).

[44]         Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 2022, 7th Ed), 699 [10.370], citing Vakauta v Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ); Smits v Roach (2006) 227 CLR 423, [43]-[49] (Gleeson CJ, Heydon and Crennan JJ).

[45] (2011) 244 CLR 427.

[46]         Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, [76] (Gummow ACJ, Hayne, Crennan and Bell JJ).

[47] (2006) 227 CLR 423.

[48] (2006) 227 CLR 423.

[49]         QYFM (2023) 97 ALJR 41, [45] quoting from Charisteas v Charisteas (2021) 273 CLR 289, [21].

[50]         QYFM (2023) 97 ALJR 41, [49] (Kiefel CJ and Gageler J).

[51]         QYFM (2023) 97 ALJR 41, [47]-[49] (Kiefel CJ and Gageler J).

[52]         Johnson v Johnson (2000) 201 CLR 488, [12]-[14].

[53]         Johnson v Johnson (2000) 201 CLR 488, [53].

[54]         Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 459 [68].

[55]         Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 519.

[56] Act, s 14(2), noting s 12(1) and sub-(a)(iv) and (vii) of the definition of ‘reportable death’.

[57] Act, s 15(1)(a) and (b).

[58] Act s 3, definition of ‘investigation’.

[59]         See Priest v West [2012] VSCA 327, [3] (Maxwell P and Harper JA), [167]-[172] (Tate JA).

[60] Act, s 40(3).

[61]         Decker v State Coroner of New South Wales (1999) 46 NSWLR 415, [6], [15].

[62]         Musumeci v. Attorney-General of New South Wales (2003) 57 NSWLR 193, 199 (Ipp JA).

[63]         Domaszewicz v State Coroner (2004) 11 VR 237, [37]. See also, Decker v State Coroner of New South Wales (1999) 46 NSWLR 415, [6].

[64] Ibid.

[65] Act, s 19.

[66]         Act, ss 20, 21 and 24.

[67]         Act, s 25(1).

[68]         Act, s 36.

[69] Coroners Act s 43(1).

[70]         Or at least no express requirement.

[71] [2023] NTCA 8.

[72]         Rolfe v The Territory Coroner [2023] NTCA 8, [53]-[54].

[73]         Maksimovich v Walsh (1985) 4 NSWLR 318, 335-6 (Samuels JA)

[74] Coroners Act 1993 s 3 definition of Investigation.

[75]         Doomadgee v Clements [2006] 2 Qd R 352, [53] (Muir J).

[76] Coroners Act s 4(2).

[77]         Johnson v. Johnson (2000) 201 CLR 488, [12].

[78]         Annetts v McCann (1990) 170 CLR 596, [23].

[79]         Coronial Council of Victoria, Review into the experience of bereaved families with the coronial process (Final report, March 2022), 51.

[80]         Kontis v Coroners Court of Victoria [2022] VSC 422, [247].

[81]         Coronial Council of Victoria, Literature review into improving the experience of bereaved families within the coronial process, August 2021, 15.

[82]         See, for example, in New South Wales, the “State Coroner’s protocol; supplementary arrangements applicable to section 23 deaths involving First Nations Peoples” at [3.1]

notes/Final First Nations Protocol 9.3.22.pdf and in Victoria, “Practice Direction 6 of
2020; Indigenous Deaths in Custody”, [7.1].

[83]         Inquest into the death of Tanya Louise Day Coroners Court Victoria, COR 2017 6424

[84]         Coronial Council of Victoria, Literature review into improving the experience of bereaved families within the coronial process, August 2021 p15 citing Newhouse, G., Ghezelbash, D., & Whittaker, A (2020) The experience of Aboriginal and Torres Strait Islander participants in Australia's coronial inquest system: reflections from the front line, International Journal for Crime, Justice and Social Democracy, 9(4), 76-89.

[85]         Dudgeon,P., McKenna, V., Smith, D., Ketchell, M., Tabuai K., Tabuai A., Manada, A., Robotham, J. (2023) Coronial responses to Suicides of Aboriginal and Torres Strait Islander People, Research Report, 28.

[86]         Submissions of Mr Rolfe dated 6 October 2023, [126].

[87]         Submissions of Mr Rolfe dated 6 October 2023, [128].

[88]         Firman v Lasry [2000] VSC 240, [26].

[89]         See generally, Judicial Commission of New South Wales, Local Court Bench Book – Coronial Matters, [44-100], Judicial College of Victoria, Coroners Bench Book - Working with counsel assisting, [9.6.1]; the Hon Justice Peter Hall, ‘The role of counsel assisting in commissions of inquiry’ (2005) Bar News 29, 29.

[90]         R v Doogan (2005) 158 ACTR 1, [164].

[91]         R v Doogan (2005) 158 ACTR 1, [164].

[92]         R v Doogan (2005) 158 ACTR 1, [165]-[166].

[93]         Re Royal Commission on Thomas’s Case [1982] 1 NZLR 252.

[94]         Dato Tan Leong Min v Insider Trading Tribunal [1999] 2 HKC 83.

[95] Submissions of Mr Rolfe dated 6 October 2023, [23]-[24].

[96]         R (Clarke) v Chairman of the Magnox Public Inquiry [2019] EWHC 3596.

[97]         Submissions of Mr Rolfe dated 6 October 2023, [25].

[98]         R v Doogan (2005) 158 ACTR 1, [162].

[99]         R v Doogan (2005) 158 ACTR 1, [159]; see also Firman v Lasry (2000) VSC 240, [27]-[29] considering the conduct of Counsel Assisting in the context of a Royal Commission.

[100]       R v Doogan (2005) 158 ACTR 1, [160].

[101]       Transcript of Proceedings on 29 March 2022 (Directions Hearing), 9.

[102]       Transcript of Proceedings on 26 May 2022 (Directions Hearing), 2.

[103]       Transcript of Proceedings on 15 August 2022 (Directions Hearing).

[104]       Transcript of Proceedings of 5 September 2022, 17-22.

[105]       Transcript of proceedings on 5 September 2022, 5-11.

[106]       Transcript of Proceedings of 5 September 2022, 17.

[107]       Transcript of Proceedings of 4 November 2023, 3253-3256.

[108]       Transcript of Proceedings of 4 November 2023, 3253.

[109]       Transcript of Proceedings of 4 November 2023, 3253.

[110]       Transcript of Proceedings of 4 November 2023, 3253.

[111]       Transcript of Proceedings of 4 November 2023, 3256.

[112]       Transcript of Proceedings of 4 November 2023, 3256.

[113]       Transcript of Proceedings of 4 November 2023, 3256.

[114]       Submissions of Mr Rolfe dated 6 October 2023, [30]ff.

[115] Submissions of Mr Rolfe dated 6 October 2023, [27]-[29] and [33].

[116] See below at [95].

[117] [2022] VSC 422, [234]-[271], esp at [258]-[259].

[118]       Submissions of NAAJA dated 13 October 2023, [22].

[119]       Submissions of NAAJA dated 13 October 2023, [21].

[120]       Transcript of Proceedings on 28 November 2022, 3771; Transcript of Proceedings on 5 September 2022, 6; see also Transcript of Proceedings on 21 November 2022, 3589.

[121]       Transcript of Proceedings of 28 November 2022, 3805.

[122]       Transcript of Proceedings on 5 September 2022, 9.

[123]       Transcript of Proceedings of 25 November 2022, 3727; see also Transcript of Proceedings on 5 September 2022, 9.

[124] Submissions of Mr Rolfe dated 6 October 2023, [33](b).

[125]       See, Kontis, [261].

[126]       Although Dr Dwyer made a reference, during the visit, to an intention to obtain the PAW Media recordings, this was before a discussion regarding the licensing fees had occurred.

[127] For example, in the case of the identity of children in care under s 301 of the Care and Protection of Children Act 2007 (NT), material giving rise to legitimate public interest immunity concerns or a claim of legal professional privilege.

[128]       See, Holmes v Commissioner of Police [2011] NTSC 108; (2011) 30 NTLR 195.

[129]       PAA, s 4(1), definition of ‘prescribed member’; Police Administration Regulations 1994 (NT), r 18.

[130]       For example, Orders 2(a)(i) and (ii), which respectively permitted the disclosure of the brief to the NTPF and the family of Kumanjayi Walker, were clearly redundant in the face of Order 2(a)(iii), which permitted disclosure to any persons ‘granted leave to appear because they have a sufficient interest in the coronial proceedings, and their respective legal representatives.’

[131]       Transcript of Proceedings on 28 April 2023 (Directions Hearing), 4908-4909.

[132]       Transcript of Proceedings on 28 April 2023 (Directions Hearing), 4926.

[133]       Transcript of Proceedings on 28 April 2023 (Directions Hearing), 4926.

[134]       See for example Transcript of Proceedings on 28 April 2023 (Directions Hearing), 4894, 4899, 4900, 4901.

[135]       Transcript of Proceedings on 28 April 2023 (Directions Hearing), 4907.

[136]       See for example, Transcript of Proceedings on 5 September 2023, 46; see also, Transcript of Proceedings on 28 October 2023, 2739-2740.

[137]       So far as I am aware, the last correspondence with Mr Officer on this issue was Ms Walz’s email of 17 February 2023, to which Mr Officer did not respond.

[138] Submissions of NAAJA dated 13 October 2023, [50]-[51].

[139]       Submissions of Mr Rolfe dated 6 October 2023, [126].

[140]       Cf, Submissions of Mr Rolfe dated 6 October 2023, [126].

[141]       Ruling No 3 [24], citing Northern Territory, Parliamentary Debates, Legislative Assembly, 3 March 1993, 78977899 (Mr Stone, Attorney-General).

[142] Royal Commission into Aboriginal Deaths in Custody (Final Report, 15 April 1991), Vol 5, Recommendation [27].

[143] Royal Commission into Aboriginal Deaths in Custody (Final Report, 15 April 1991), Vol 5, Recommendation [27].

[144]       That the hearings of the inquest are the ‘culmination’ of the broader inquiry or investigation is confirmed by Recommendation 11.

[145]       See eg, Judicial Commission of New South Wales, Local Court Bench Book – Coronial Matters, [44-100], ‘Working with counsel assisting’; the Hon Justice Peter Hall, ‘The role of counsel assisting in commissions of inquiry’ (2005) Bar News 29, 29.

[146]       Submissions of Mr Rolfe dated 6 October 2023.

[147]       See eg Transcript of Proceedings on 5 September 2022, 23-29; Transcript of Proceedings on 27 February 2022, 4034-4043; Submissions of the NTPF dated 10 March 2023 on Referral for Contempt; Submissions of the WLR Families regarding Contempt dated 3 March 2023.

[148]       See eg Transcript of Proceedings on 5 September 2022, 29; Transcript of Proceedings on 27 February 2022, 4043.

[149]       Transcript of Proceedings on 28 April 2023, 4907.

[150]       See eg Transcript of Proceedings on 13 September 2023, 369.

[151]       Inquest into the death of Kumanjayi Walker (Ruling No 6) 2022 NTLC 027.

[152]       Inquest into the death of Kumanjayi Walker (Ruling No 6) 2022 NTLC 027, [9].

[153]       R v Doogan (2005) 158 ACTR 1, [52].

[154] Submissions of the Brown family dated 13 October 2023, [22]-[23].

[155]       Non publication order made 4 May 2023, Annexure A, items listed at 17, 19 and 20.

[156]       Inquest into the death of Kumanjayi Walker (Ruling No 7) 2023 NTLC 11, [6(e)].

[157]       Transcript of Proceedings of 13 September 2022, 369.

[158] And making such other findings, comments and recommendations required of me by ss 26, 34 and 35 of the Act.

[159]       Annexure J is a list of the written submissions received in relation to this application.

(Media to leave)

Truth Telling to the Coroner (translated by Valda)

Closing1: Luritja Action (dance performance) or speech by the Luritja family

Closing 2: Community BBQ facilitated by WYDAC

Cultural Matters of significance:

Yarning circle with Parumpurru Committee and young people of Yuendumu, overseen by

Elders, to talk about issues.