Kumanjayi White's family want NT Police to hand over investigation into his death. Who could take it?

Australia Broadcast Center

15 hours ago

Aboriginal and Torres Strait Islander readers are advised that this article contains the name of an Indigenous person who has died, used with the permission of their family.
Since 24-year-old Yuendumu man Kumanjayi White died after being restrained by Northern Territory police officers inside the Alice Springs Coles, his family has repeatedly called for an independent investigation.
But is that legally possible? Could the federal government intervene? And what other body could investigate the young man's death?
Mr White died after officers, who were not in uniform, responded following an altercation between Mr White, who lived with disabilities, and a security guard inside the supermarket on May 27.
NT Police alleged Mr White placed "items down the front of his clothing when he was confronted by security guards" and that a security guard was assaulted.
As Mr White's community of Yuendumu grieves, NT Police has refused his family's request to hand the investigation over and allow them to review the CCTV footage.
Assistant Commissioner Travis Wurst said he will lead the investigation and "provide oversight" along with NT Police's Professional Standards Command, pledging it will be "objective, professional and transparent".
"Detectives have collected a considerable amount of evidence and the public can be assured that a full and thorough investigative report will be prepared for the coroner," he said.
He said the evidence includes CCTV footage and the security guards' body-worn cameras.
The coronial inquest has been paused while police determine "whether any criminality was involved".
Police said they won't release evidence, including the camera footage which Mr White's family has requested to see, until their investigation concludes. They have not shared a timeline for the investigation.
The territory's forensic pathologist is also doing further work to determine Mr White's cause of death, after an autopsy was inconclusive.
We don't know yet what the evidence will show about how Mr White died.
John Lawrence SC, former Crown prosecutor in Darwin and former president of the NT Bar Association, said investigators should gather all evidence that is potentially relevant.
"It will include eyewitness accounts, body-worn camera footage of the security guards, forensic evidence that'll be gathered including the post-mortem determination as to the cause of death," Mr Lawrence told the ABC's Indigenous Affairs Team.
"It's then considered by the prosecutor as to what, if any, offences have been committed and what, if any charges are laid."
Jeremy King is principal lawyer at Robinson Gill Lawyers and head of the firm's police misconduct practice. He previously acted for the mother of Veronica Nelson, an Aboriginal woman who died in a Victorian prison cell in 2020.
Mr King said NT Police is required to look at whether any force was used and assess whether it was lawful, reasonable and proportionate.
"You would worry that perhaps (Mr White's disability) is not going to be front of mind with police when looking at this," Mr King said.
Advocacy groups including Justice Not Jails, Justice for Walker and Amnesty International have been at the forefront of calls for an external inquiry, alongside Kumanjayi White's grandfather, Warlpiri elder, Ned Jampijinpa Hargraves.
Indigenous Australians Minister Malarndirri McCarthy is also among those who have said it may be necessary for an inquiry to take place at arm's length from NT police, to ensure impartiality.
Marion Scrymgour, the federal Labor MP for NT electorate Lingiari, has called for Australian Federal Police (AFP) detectives to "take over" the investigation.
The Central Land Council (CLC) has called on the federal government to withhold funding from the NT government "until it sets up an independent police conduct commission".
Hannah McGlade, who is Kurin Minang Noongar associate professor at Curtin Law School, said the standard required under international human rights law is that police cannot investigate police.
"This is not independent or impartial," Dr McGlade said.
She pointed to the UN's minimum rules for the treatment of prisoners — the so-called "Nelson Mandela rules" — which state that any custodial death must be investigated by "a judicial or other competent authority that is independent of the prison administration".
Barrister John Lawrence SC, who represented one of the Don Dale youth detainees during the 2016 royal commission, alleged NT Police was selective in the information it provided about the events on May 27, which he says indicated "bias".
He criticises police for telling reporters Kumanjayi White had assaulted a security guard (which he says hasn't been established) and allegedly assaulted a woman earlier in the day — but not sharing details of Mr White's disability, or the level of force used when he was apprehended in Coles.
"Police putting that out there, not only besmirches horribly the deceased's character and sullies him, but it must have caused great grief and distress, and no doubt, anger for the family," he said.
The NT Police told the ABC in a statement "in the Northern Territory, there are specific legislation which governs the disclosure of information about a person's physical, mental health, disability and criminal records".
Some legal experts said the work the NT Police has done to date can and should be handed over to another investigative unit.
"The obvious candidates would appear to be units from other police forces," Mr Lawrence said, adding that the Victorian police force could be an option.
"Because you do want the best investigators gathering all of the evidence that's potentially relevant.
"Legally and constitutionally, the Labor government has legislative authority over the NT complete — they could just legislate tomorrow in the federal parliament, ordering the police investigation into the death of Kumanjayi White should be from now on handed over to a specialist unit from another state."
Victorian police accountability lawyer Jeremy King does not want to see the matter looked at by police in any jurisdiction.
"It doesn't matter whether it's NT Police, Victoria Police, NSW Police or New Caledonian Police, the fact of the matter is that police should not be investigating themselves," Mr King said.
"There needs to be an independent authority looking at this carefully and properly, and independently investigating it.
"And then coming back with recommendations regarding criminal charges, and then coming back with a brief for the coroner."
Mr King said that until there is independent oversight there will be little "incentive for police to act in accordance with the law and to not act with impunity in these situations because they know they'll just get investigated by their brother and sister cops".
It was NT Police that charged Zachary Rolfe with murder as well as the two alternative charges of manslaughter and engaging in a violent act causing death over the fatal shooting of 19-year-old Kumanjayi Walker during an attempted arrest in the remote community of Yuendumu.
A jury in the NT Supreme Court cleared Mr Rolfe of all charges in 2022.
The Little Children are Sacred inquiry on child sexual abuse is an example of an external body investigating criminality in the NT, and what is known as the NT Intervention afterward, an example of the federal government stepping in, according to Dr McGlade.
During COVID the AFP was brought into the territory to man checkpoints at Aboriginal bush communities.
"The NT will take federal assistance when it suits their interest," Dr McGlade said.
Mr King said if the "commonwealth wanted to take this seriously" it could drive another Black Deaths in Custody Royal Commission, but specifically looking at the NT, similar to the 2016 royal commission sparked by abuses as Don Dale juvenile detention centre.
"The commonwealth has the power to do that," he said.
But he added that communities may have little faith any royal commission's findings would be implemented.
The Northern Territory Chief Minister Lia Finocchiaro has vehemently ruled out an independent investigation. "It is entirely appropriate [that NT Police investigates] and this is exactly what happens for all deaths in custody," she told ABC Radio Darwin.
She said she wanted to avoid the previous Labor government's "mistakes" when then-chief minister Michael Gunner promised the Yuendumu community "consequences will flow" after the death of Kumanjayi Walker in 2019. A later ICAC probe cleared him of alleged political interference in the decision to charge Mr Rolfe.
Acting Commissioner of Police Martin Dole has issued a statement saying he "respectfully reject[s]" calls for the probe into Mr White's death to be handed to an external body. He said the major crimes division "operates under strict protocols and with full transparency".
The NT Police union told the ABC it wouldn't be commenting while an investigation is underway.
All deaths in custody in the NT must be reviewed by a coronial inquest.
Police said their investigation will be "independently reviewed by the NT Coroner, who has broad powers to examine all aspects of the incident and make findings without interference".
The NT coroner spent more than two years examining the 2019 police shooting of Kumanjayi Walker. Those findings will now be handed down on July 7.