A New South Wales police officer was found guilty on November 28 for the death in custody of Dunghutti teenager Jai Kalani Wright.
Not only is this significant for Wright’s family, but the dangerous driving causing death decision is the first time a police officer has ever been convicted for a Black death in custody.
News of the outcome led to people expressing shock on their social media that justice had finally been done, as well as shock that it has taken so long.
An unmarked police car, driven by sergeant Benedict Bryant, crashed head-on into the stolen trail bike Wright was riding in the early morning in the inner-city suburb of Eveleigh, in February 2022.
The bike and another stolen car had been spotted close to the scene of the accident earlier on; Wright was struck by an oncoming vehicle while he and others were being chased.
NSW District Court judge Jane Culver agreed with crown prosecutor Phillip Strickland, who said Bryant, who had 22 years of experience, had received a direction not to pursue Wright on the trail bike. He should have realised this meant that the 16-year-old driver would likely drive in a dangerous manner to avoid apprehension.
Bryant’s conviction comes after decades of campaigning by First Nations people and allies to stop Aboriginal deaths in custody. The injustice of putting disproportionate numbers of First Nations people into the criminal justice system means many end up dead as a result.
Bryant has yet to be sentenced and it is unclear if his penalty will reflect the seriousness of his crime.
Guilty of causing death
“This verdict confirms that Benedict Bryant caused the death of Jai Wright. This is a tragedy that never should have happened,” said Nadine Miles, principal legal officer at the Aboriginal Legal Service NSW/ACT.
“It is rare for police officers to face criminal charges when they are involved in the death of a community member and even rarer for a court to return a guilty verdict.
“We are not aware of a previous instance where a police officer has been held criminally responsible for the death of an Aboriginal person in custody or in a police operation in NSW,” Miles said.
“It is critical that police are held accountable for their actions. The community should be able to trust that they will be safe when interacting with police.”
The inquest into the death of Wright started in January last year. But it was brought to an abrupt halt on February 19 last year, a week into proceedings, when NSW coroner Teresa O’Sullivan referred the case to the NSW Director of Public Prosecutions (DPP) to look into potential charges against Bryant.
O’Sullivan did the same in October 2020, after a prison guard shot an Aboriginal inmate in the back. However, the prison officer was eventually acquitted.
Bryant had pleaded not guilty to one count of dangerous driving causing death, contrary to section 52A of the Crimes Act. The crown prosecutor had to show that he had been driving in a dangerous manner, which lead to a crash and the death of Wright.
The maximum penalty Bryant now faces is 10 years in prison. The NSW DPP laid a back-up charge against the police officer; it is a second less serious charge that might serve as a conviction if the primary offence does not stick. This second offence is one count of negligent driving occasioning death, contrary to subsection 117(1)(a) of the Road Transport Act.
This traffic crime carries up to 18 months’ prison and/or a $3300 fine. If it is a second “major traffic offence” within a five-year period, the penalties climb to two years’ jail and/or a $5500 fine.
“Police use force against Aboriginal people at vastly disproportionate rates. There is a particular lack of accountability for police who cause harm to Aboriginal people,” Miles said. “The conviction of Benedict Bryant breaks with this trend and is an important step in the right direction.”
Dubious acquittals
Sydney Criminal Lawyers believes that Bryant’s conviction for an Aboriginal person’s death in custody is the first since the handing down of the 1991 final report of the Royal Commission into Aboriginal Deaths in Custody.
This opinion has been arrived at after speaking with First Nations experts, as well as consulting the literature.
It is rare for a police officer to even be charged for a Black death in custody. It appears that no prison officer has ever been convicted for a Black death in custody crime and it is even rarer for a corrections officer to be charged.
John Pat, a 16-year-old Yindjibarndi youth, died in a police cell on Ngarluma land in the Western Australian town of Roebourne, on September 28, 1983, after he had attempted to assist another Aboriginal man who was being beaten by local police. They turned on him, threw him in a police van and subsequently dragged him into the lock-up, to die an hour later.
The five police officers involved were acquitted and even reinstated to duty after the trial.
The November 19, 2004, death in custody of 36-year-old Mulrunji, or Mr Doomadgee, who belonged to the Bwgcolman community of Palm Island, and the subsequent acquittal of then Queensland Police sergeant Chris Hurley is another prominent example of a law enforcement officer being exonerated.
Hurley brutalised Mulrunji to the point of rupturing his spleen and liver. But he did not lose his job and was even, eventually, was given a promotion.
The starkest recent example of a police officer being acquitted after the killing of an Aboriginal person in custody is that of Northern Territory police constable Zachary Rolfe.
A sliding scale of charges were laid against Rolfe after he shot and killed 19-year-old Warlpiri Luritja man Kumanjayi Walker.
This involved a charge of murder, seconded by a charge of manslaughter and, if neither of those stuck, a conviction of a violent act causing death. However, the all-non-indigenous jury acquitted Rolfe of all three charges.
Rolfe’s trial showed clear evidence of a criminal justice system that, until last week, was incapable of prosecuting a police officer for killing a First Nations person. After shooting Walker once in the back, Rolfe then shot two bullets into the boy’s rib cage as he was lying on his back on the floor as the officer’s partner held him down.
Sign of accountability
The federal government’s real-time deaths in custody dashboard states that there have been 617 Aboriginal deaths in custody since the Royal Commission into Aboriginal Deaths in Custody.
So far this year, 33 First Nations people have died in the custody of either corrections or police.
O’Sullivan announced in mid-October a “profoundly distressing milestone”; the most Aboriginal deaths in custody in NSW in one year. Twelve First Nations people have died in custody since the beginning of the year.
Legal experts and deaths in custody campaigners have hailed Bryant’s guilty verdict as a sign of some police accountability.
However, there is still the possibility that the courts will only lightly sentence him. The other possible outcome is if the ex-officer successfully appeals his conviction outright.
“From that first day [when] we were told by a senior police officer that this happened, that a car pulled in front of Jai and caused the collision, we had to put up with police investigating police and this not being pursued by the DPP,” Wright’s father Lachlan Wright told the media after the verdict was handed down. “After that, we had to put up with going to a coronial inquest.”
Wright’s father, however, is holding on to hope. “If things can change in the future in regard to relationships between Aboriginal people in this country and the police force, maybe this won’t happen again.”
[Paul Gregoire writes for Sydney Criminal Lawyers, where this article was first published.]