By Professor Mark Finnane


More than 50 years ago a young legal academic from the University of Western Australia, Richard Harding, published his study of Police Killings in Australia. Issued as a Penguin Special, the book remains unique, a forensic legal study of numerous killings of citizens by police officers in the course of their duties. There is nothing else like it in Australian law and criminology

When police killed, observed Harding, they were very rarely brought to account, in spite of ‘a pattern of systemic abuse of the rules relating to deaths caused in arrest situations’. So disturbing was the abuse of the rules that Harding was drawn to conclude that the law had been changed, ‘not by the normal parliamentary or judicial means’ but by the practice of those administering the law –coroners, police authorities, attorneys-general.

‘If the formal law were to correspond with current practice’, wrote Harding, ‘it would read something like this:

Any policeman who negligently kills a felon in the course of arresting or trying to arrest him commits excusable homicide even if the felon could have been arrested in the immediate situation without the use of fatal force.’

Harding’s cases were contemporary, of the 1960s. But the practices he documented were of very long standing. If anything, police accountability for their actions had deteriorated in the twentieth century.

In even the most notorious of Australian police forces, the Queensland Native Police of the nineteenth century, there was a record of police officers accused of killing Aboriginal people being called to account. The short career of newly recruited Lieutenant Donald Harris was brought to an end with his dismissal from the police after his arrest for shooting an Aboriginal employee of a Gayndah farmer in 1863. A more experienced officer, Lieutenant Morehead was even committed for trial in the same year on a charge of murder of another Aboriginal man, again known to local settlers – though his committal came to nothing when the Attorney General declined to prosecute further. Charged in 1884 as an accessory before the fact of murder of a number of Aboriginal people in north Queensland, Sub-Inspector Nichols was saved from committal by a sympathetic magistrate, but dismissed from police service. Dismissal following involvement in unlawful killing was a common remedy in nineteenth century policing – in part reflecting the difficulty of clearing the evidence hurdles of a criminal trial. When a rare matter came to trial, as it did in Port Augusta in 1891 over killings in central Australia by Constable William Willshire, the barriers to conviction were formidable – and Willshire walked free, after a successful defence conducted by a founding father of Australian federation, Sir John Downer.

The legal impediments to conviction for a killing by police in the course of duty were compounded in the twentieth century by the marshalling of legal defence by the increasingly unionised police employees. Protection against legal actions brought by aggrieved citizens has long been a factor underlying the high rates of unionisation in Australian policing. In recent decades police unions have supplemented their capacity to marshal legal resources in defence of their members, with vigorous public media activity in the same cause.

Against this background, and in contrast to the position observed in the 1960s by Harding, the prosecution of Zachary Rolfe for the 2019 shooting death of Kumanjayi Walker at Yuendumu suggests that something has changed. It may not be common, but it is now not unknown for police officers to be charged with serious offences arising from their policing of Australian citizens. His acquittal on the other hand confirms the experience of 200 years of Australian policing – that a conviction of a serving police officer on such a charge is extremely rare. This is not to call into question an outcome of a jury trial, following lengthy proceedings and an earlier committal hearing. It is however to remind ourselves of the distance between a system that accords fairness to the accused and one that addresses the justice needs of victims and their communities.

The outcome of this most recent prosecution of a police shooting prompts again the question asked by Richard Harding a half-century ago – just what is the law in practice when it comes to police homicides? The acquittal follows a similar result in Western Australia just a few months ago, when an Aboriginal woman carrying a bread knife was shot dead on the street during an episode in which the lone woman was besieged by a multitude of police vehicles. In contrast to earlier police killings of the kind documented by Harding, these events have been killings documented on video for an entire Australian community to see.

Some see in the Rolfe trial and acquittal an exemplary case of the rule of law in action in Australia. But as Harding concluded years ago, what kind of law in practice is affirmed in the outcome? The event reminds us of the limits of rule of law as an instrument of justice, its shortcoming in establishing the truth of an event, its struggle for legitimacy when it confronts the common sense of everyday life, its careful quarantining of facts admissible within the bounds of the courtroom, its exclusion of other facts that may be required to make sense of an event. This is not even to go to the other troubling features of a rule of law exercised through a jury trial that is commonly absent Indigenous jurors.

In this context, the post-trial release of documents that cast a light on Rolfe’s disposition as a police officer working in central Australia accentuates the limitations of the courtroom as a site for addressing justice concerns. Hence the dignified response of the Yuendumu community and other Indigenous supporters in calling for the disarming of police in such community settings, establishes a new agenda. The call of the Black Lives Matter movement in the United States to ‘defund the police’ may have a rationale in that environment but was always going to struggle as an agendum in the very different Australian context. But a call to disarm the police in their everyday policing of Australian citizens in Australian communities is another matter. And indeed some have spoken already of this as a practice adopted by police familiar with their local communities, those less inclined to see remote Australia as a ‘Wild West’, to use Rolfe’s all too revealing phrase.

No parent of a troubled child, no kin of an adult struggling with their life choices, can accept the spectacle offered to us these days of such a person killed by a police officer, appointed to protect and serve the public, in circumstances that patently offered other choices. Fortunately the criminal trial alone, with all its limitations, does not exhaust the remedies possible in a rule of law society. Coronial inquiry and civil law actions, perhaps even administrative disciplinary proceedings, may yet bring to this most recent police killing more understanding, and contribute to prevention of others.

Image credit: ABC News, Michael Franchi