Very little has been learnt from the death in custody on Palm Island

On the second Tuesday in November 2019, I sat down to have lunch with my editor, Meredith Rose. This was the first opportunity we’d had to meet, after months of work over the phone and in electronic dispatches. Just two days earlier, news had broken of the shooting of Kumanjayi Walker in Yuendumu, and we were talking of this when my phone buzzed with an email:

Hi Andrew,

I am of the understanding that you assisted the Palm Island Council on the Cameron Doomadgee case.

As you may be aware, a fatal shooting of a young 19 year old man, Kumantjayi Walker by NT Police at Yuendumu, 300kms west of Alice Springs occurred on Saturday 9 November 2019. The Warlpiri people have decided to conduct an independent coronial and private investigation into the issues and events leading up to and following the fatal shooting.

Accounts of the Warlpiri people to date claim that the Yuendumu community (approximately 700 people) were attending a funeral at the time of the shooting. Kumantjayi Walker was at home on his bed and three policemen had travelled to Yuendumu from Darwin (not from Alice Springs or Yuendumu) to arrest him for breach of parole. Kumantjayi was known for breaking into the clinic and shop both at Yuendumu and Papunya. The Department had arranged for the health staff to vacate Yuendumu prior to the arrest. He was shot three times, in front of his mother, grandmother and children, who witnessed the event. The body (unconscious or dead) was dragged from the house into the back of the paddy van and kept overnight in the police station, which immediately went into lock down mode, following the shooting. Warlpiri community congregated outside the police station demanding communication, but police refused to engage family members, local Aboriginal police or elders. On Sunday 10 November at 4am in the morning, a plane landed at Yuendumu and the police officers from Darwin were flown out. We are of the understanding that the dead body remained in the Police Station overnight and left at 7.30am on the Sunday morning.

There are many questions but as yet no answers.

Today, the Warlpiri people are meeting with the Chief Minister, Hon Ken Wyatt and the Police Commissioner this afternoon at Yuendumu. The Warlpiri people are calling for an Independent investigation, including autopsy (coronial) inquiry. The Warlpiri people are also calling for the establishment of the Yuendumu Select Committee to oversee the private investigations and coronial inquiry, to examine the findings of the internal review of the NT Police and to ensure that the community remains safe.

The Warlpiri people are looking for a private investigator (pro bono) and would like to know if you are interested in assisting us.

Please call me on 0419****** for further discussion.

Regards

Dr Lisa Watts

Researcher and Consultant

I handed my phone across the table and Meredith, after reading, looked at me without a word. I tried to not let it spoil our meal.

After lunch, I had further exchanges with Lisa, and some others, to assess her authority to speak for the family of Kumanjayi and elders in his community. I learnt that she had married into the Butcher family at Papunya, members of the legendary Warumpi Band, about thirty years ago; her daughter, Anyupa, was also linked to the Yuendumu community. Lisa had done a doctorate on water rights under native title and land claims. I started emailing around to see who else might be able to help.

Two days later, after spending a night in Alice Springs to meet Yuendumu elders Robin Granites and Harry Nelson, who gave confirmation of the community’s request for my help, I drove with the team I’d assembled into Yuendumu, 300 kilometres north-west of Alice and one of scores of similar “camps” around the town. The next community along is Kintore, another 400 kilometres down the same road. The lawyers I’d brought with me included Greer, my eldest daughter, who works for a law firm in Melbourne; Christian Hearn, an energetic solicitor who operates a one-man show out of his briefcase in Sydney; and Tamzin Lee, a Darwin-based barrister who happened to be in Alice Springs that week. I’d worked with Tamzin recently in a child protection case in Darwin, and persuaded her to come with us at the last moment because I knew she’d worked in these communities for many years. Greer’s boss, Bill Doogue, had agreed to pay her way and given his approval for her to expend pro bono energy on the case. The travel expenses for the rest of our motley crew were covered by Lisa’s GoFundMe campaign. In two days she had raised more than $60,000, such was the outrage that many throughout the country felt about yet another Indigenous death in custody.

We planned to stay five days, to get a sense of the place. As each day unfolded, an increasing feeling of Groundhog Day descended on me, and at night I lay sleepless in a donga on the outskirts of town. This group of dongas is cheekily called the Hilton, but it was not physical discomfort that kept me awake, nor the heat, though the temperature stayed in the high thirties and on the fifth day hit 42. One night I woke in fright to see a horse wandering around outside my door.

On our fourth evening, at about 7.30pm, almost a week to the minute since Kumanjayi was shot, I was standing in front of the house in which it happened. People called it the Red House, and had done long before his blood was spilled there. It was also almost 15 years to the day since Cameron Doomadgee was killed. As we stood outside the broken fence, a dusty orange glow gripped the horizon and two whirly-whirlies could be seen in the distance. It was dry, hot and almost airless.

We stayed outside the fence of the house and watched as Valerie, a woman we’d met at the community meeting a few hours earlier, where she was chosen to be on a select committee to represent the family at the inquest, walked around the front door, barefoot and using a tree branch to sweep the dirt outside the house. She was performing a sombre ritual. Her grief was palpable, and her wailing in Warlpiri brought more barefoot children into the yard.

Valerie later told me that she’d been clearing the way for our team, but just then it was too much for me. It did not feel right to intrude. We retraced our steps to our LandCruiser and drove back to our accommodation in silence, to let be done whatever needed to be. At the community house, where Greer and Tamzin were accommodated, we found Lisa, who was apologetic for the delay.

Half an hour later, we returned to the Red House. Valerie was still at the door holding the branch but now beckoned us into the yard, where several other women sat in the red dirt. One of them was one of Kumanjayi’s four grandmothers, and this was her house. Valerie spoke my language well and told me that she had not been a witness to any of the events of the previous week, and so had been asked by the family to show us through.

It was my turn to apologise, to Valerie, Lisa and the other women, for the anxiety I knew we must be causing, and for the intrusiveness of our going into the house. I was in no hurry to see the death scene. I’d seen many before but I wasn’t sure I wanted to see this one. But we had to.

We entered almost in a huddle. Months if not years of rubbish littered the unpainted cement floor, and the kitchen bench buzzed with flies over half-eaten cans of beans, cured meat, and other things I normally associate with camping. Oddly, police exhibit markers had been left in some of the rooms. There was no furniture other than some rusty, dormitory-style beds. The one mattress I saw looked to have a bullet hole in its side. I have walked through slums in Mumbai, and through refugee camps on the Thai–Burma border, but neither was more deprived than this. The house was worse than Fourth-World conditions. Conditions that serve to dehumanise.

The 19-year-old’s last moments were breathed here. He hid here, knowing that police were coming for him. We didn’t stay inside for very long, and as we went to leave, Valerie stopped us at the door, a purposeful expression on her handsome face. She pointed to a tin cup with the remnants of tea in it on the floor, next to a cap. These things, she said, were Kumanjayi’s, and this was where he had lain before the police came.

The next day, Ned Hargraves, a Warlpiri elder who had been elected chair of the select committee, casually told me he wanted to give me a skin name. Ned got around on crutches, having been crippled by polio as a young man. Embarrassed, I said I didn’t want one, almost too quickly. I was not ready to take on skin responsibilities just yet. But this, as I later learnt, was not offered as some kind of feather in my cap, it was just a cap. As explained to me later by a non-Indigenous man who had lived here for more than 40 years, it would identify for Ned who I was to him, and perhaps to some others; it would set my place in relation to them. Ned then said he would name me after his father’s totem, Warlawurru (the wedge-tailed eagle). One of his young minders handed me a note with this word written on it.

As we drove out of Yuendumu after five long days, the burden of Lisa’s request, and the effect of meeting Kumanjayi’s family, sat heavily on my shoulders. All four of us were shell-shocked, attempting to act light. When a wedge-tailed eagle flew across the windscreen, we tried not to be spooked by it.

This bird is on the coat of arms of the Northern Territory and used as an emblem by the NT Fire and Emergency Services, the South Australian and New South Wales police services, as well as the Australian Defence Force. The man charged with Kumanjayi’s murder was a ADF member before becoming a territory police officer.

As much as I would like to, I cannot at the moment go into detail about this shooting. The acting deputy Northern Territory police commissioner has publicly stated that three shots were fired and the events captured on body cameras worn by the police, including the shooter. The coronial and criminal investigation is still in its infancy and will likely take years to unfold.

What I can say is that very little, if anything at all, seems to have been learnt by police or government agencies from what happened on Palm Island. Leaving aside the utter awfulness of still another fatal police shooting of an Indigenous person, it’s the way in which some of these agencies, as well as some other non-Indigenous people, have responded that already leaves me with a bitter taste. It reinforced my initial reticence to jump into the case. I am treading softly, and with short steps; I am reminding myself that, while there is much that appears to be similar, the Yuendumu community is very different to Palm Island’s. For a start, the Warlpiri nation has a reputation for being strong, and the use of Warlpiri language and cultural practice is vibrant throughout the community. I had an interpreter with me, but the possibilities for misunderstanding still seemed high.

One thing was the same: many I met were traumatised. I heard descriptions of how Kumanjayi had been dragged out of the house, “like a kangaroo”, his hands cuffed behind his back, and while only a few had actually seen this incident, many had already heard the story. He was then taken in the back of a paddy wagon at speed to the police station, less than half a kilometre away. He died there soon after from his gunshot wounds. Stories abounded that the police had prevented medical staff from going into the station due to fears for their safety.

After the shooting, there were armed police patrols in the town. They even went to the school at one point, and had to be asked to leave by distressed teachers. I also heard that a few of these police attempted to hand out lollies to children, who ran away. Some mothers told us that their children found it hard to sleep, fearing that police would come and “get them” too.

On my second visit a week later, I was asked to attend a meeting of the initiated men, under a spindly tree on the edge of town. The group included some who’d been at family and community meetings. Lightning lit the horizon, followed by staggered rumbles of deep-throated thunder. These men said little but made it clear that I was being watched closely. I in turn tried to say as little as possible, for I did not want to promise what I could not deliver.

I was mid-sentence in a response to a question, after being introduced by Ned, when the men all got into their cars and drove off. It was a reminder that none of this is about me – and yet it is about all of us, and the divide that remains between black and white Australia.

When I returned to Yuendumu for a third time since the shooting, our legal team had expanded to include two more, both again working pro bono. Northern Territory law requires that any tort claim against police for trauma inflicted by police in a community has to be commenced within two months of the incident occurring. As none of our existing team were personal injury lawyers, I enlisted the help of Paula Morreau, who’d been responsible, a decade earlier as a solicitor in my then legal firm, for the tort claim of Cameron Doomadgee’s family against Senior Sergeant Chris Hurley; Paula is now a barrister, so I also enlisted a Sydney solicitor to instruct on the matter. Because of the trust placed in me by the community, and because it was important to ensure that they understood the process, our whole team went back to Yuendumu to introduce the new lawyers.

I also had another task to perform. I’d received a copy of the interim autopsy report, disclosed by the coroner’s office the previous week. It detailed the entry points of the three bullets found in Kumanjayi Walker’s body and explained the cause of death. I was obliged to inform the family and the elders of this, and to obtain instructions on whether they wanted another autopsy done, this time by an independent forensic pathologist. Although I did not have access to the footage from the police body cameras, the interim report gave clues as to the interaction between Kumanjayi and Constable Zachary Rolfe, the officer who shot him.

According to Warlpiri custom, it was not appropriate for Kumanjayi’s young widow or his foster mother to be present at this meeting, so they were led outside. I then summarised the report’s contents, to the gasps of the family and the silence of the lawyers, and said it would be best if the details were withheld from the rest of the community at this stage. The family and elders agreed with this, and then the husband of a sister of one of the grandmothers wanted to speak. He could barely do so as he told us that he had held Kumanjayi as a newborn baby and initiated him as a man. Struggling to keep his composure, he put his hands out in the manner of cradling an infant. He had as much trouble stopping them tremble as I did holding his gaze. I asked for and expressly obtained their permission to write about this now, in fact they emphatically asked that I do so. They want the world to know what is happening to them.

The day before our arrival, a magistrate in Alice Springs had heard submissions from the Adelaide silk representing Constable Rolfe as to why the committal proceedings should be moved to Darwin. Among the arguments for this was the claim that there had been undue activity on social media, which would prevent Rolfe receiving a fair hearing in Yuendumu or Alice Springs. The deputy director of prosecutions, after expressing the Walker family’s preference for the hearing to be conducted in Alice Springs, where they could afford to attend, then submitted that he did not oppose the submission to move the matter to Darwin.

When told of this, some of the family collapsed in grief and others shuffled about in anger.

Back in Alice Springs from Yuendumu, I was shown a newspaper report about Constable Rolfe. There was a photograph of him in a Canberra pub on the day of the submission hearing, where he’d appeared via video link; he was smiling and drinking with friends.

A week later, the magistrate refused the application to move the committal proceedings to Darwin, saying he was not satisfied that such a move was in the interests of justice. It was a small victory for the Yuendumu community.

Constable Rolfe remains free on bail and suspended from duties, on full pay. He has made clear that he will plead not guilty and has the support of his police association. The association president’s public statements, which appear to be in contempt of the current court process, point to his service history as including episodes of heroic acts. Yet, that he was given bail in a secret hearing conducted over the phone by a local magistrate, is a matter that bears further examination.

This is an edited extract from The Truth Hurts, to be launched in April, 2020, from Hachette Australia.