WARNING: Aboriginal and Torres Strait Islander readers are advised the following article contains the name and/or image of an Indigenous person who has died.
The family of a disabled Warlpiri man who died in police custody have discontinued action in the Northern Territory Supreme Court against NT Police and the Police Commissioner after finally being told who made the decision not to prosecute officers involved.
The 24-year-old man, known as Kumanjayi White for cultural reasons, died on May 27 last year after being restrained by two plain-clothed Northern Territory Police officers inside a Coles supermarket in Alice Springs.
Earlier this year, on the first anniversary of his death, Northern Territory Police informed his family that the Director of Public Prosecutions (DPP) had recommended no charges be laid against the officers involved. Queensland Police provided an "independent" use-of-force review, requested by Northern Territory prosecutors, which found the officers' actions were appropriate.
Last month, lawyers for the family announced they would seek Supreme Court orders requiring the production of documents identifying the decision-maker behind the decision not to prosecute, or requiring Northern Territory Police to identify that person before the court.
Despite initially understanding that it was the NT DPP who made the decision not to prosecute, lawyers for the family have now been told it was made by NT Police. As a result, the case was discontinued on Thursday.
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In a statement, Mr White's grandfather and family spokesperson, Ned Jampijinpa Hargraves, said they could not understand why it took Supreme Court action to "find out who made the decision not to charge anyone about my Jaja's (grandson) death".
"Me and my family have been asking for an independent inquiry into this horrific case for over a year, since the awful day that we lost Kumanjayi," he said.
"Now that we know who made the decision, we still want to know the reasons behind the decision; we want to know what charges did the Acting Assistant Commissioner actually considered and the reasons why each of those charges were ruled out. We want to know that. Any family is entitled to know that."
Mr Jampijinpa Hargraves said the family's lawyers are "continuing to investigate whether the decision of the NT Police can be challenged in the Courts," but noted they "can't say any more than that right now".
"We want transparency, justice and accountability for Kumanjayi White," he added.
The family were told of the outcome of the death in custody investigation and subsequent use-of-force inquiry in May after authorities flew to Mr White's mother's community of Lajamanu, where the family were participating in sorry business.
"After considering all available material, including the independent expert report and external legal advice, the DPP formed the view that there are no reasonable prospects of a successful prosecution," a DPP spokesperson said at the time.
Last month, George Newhouse, chief executive officer of the National Justice Project, which is representing Mr White's family, said that after waiting more than a year for answers, the family had been told no one would be prosecuted "without any proper explanation of who made that decision or how it was reached".
He told the ABC this week that correspondence between the family's lawyers and the DPP had "discovered that in fact it was the police who made the decision" not to prosecute.
"All the family of Kumanjayi White want is accountability, transparency and justice," he said. "They want to be treated the same as other Territorians, they want to know that this process has been independent and just."
Last week, National Indigenous Times reported that while the family's long-term requests for an independent investigation into Mr White's death were ignored, assault charges against federal Labor MP Luke Gosling had been referred to the Commonwealth DPP to avoid a perceived conflict of interest. It resulted in criticism from Aboriginal politicians and Mr Newhouse about a perceived double standard.
Authorities have still not explained how Mr White — who was under state guardianship and living in supported accommodation — died after being taken into police custody. In May, Northern Territory Police Commissioner Martin Dole said the cause of death remained "equivocal".
Nevertheless, immediately after his death, police chose to highlight Mr White's alleged criminality without any chance of defending himself in court.
"We were very upset about how the Assistant Commissioner spoke negatively about our Jaja in the days after the incident," Mr Jampijinpa Hargraves said. "Very hurt and upset."
The officers involved were never stood down by NT Police, with one — NT Police prosecutor Steven Haig — continuing to accept briefs, including prosecuting Mr White's father by kinship, Martin "Isaac" Jabarula White, in August last year.
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