This article contains references to a deceased Indigenous person.
SBS News can reveal Northern Territory Police waited four months to send the NT's Director of Public Prosecutions (NTDPP) an 'opinion file' seeking advice after the death in custody of a 24-year-old Warlpiri man.
Known as Kumanjayi White for cultural reasons, the young man who also lived with disabilities died in May last year after he was restrained by two plain-clothes police officers in the confectionery aisle of an Alice Springs supermarket.
His death sparked nationwide protests over government inaction on Aboriginal deaths in custody, with protesters echoing calls by his family for an independent investigation.
White's family launched legal action against NT Police after it was announced the two officers involved would not be prosecuted in May — but discontinued the action earlier this month.
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Now, an internal memo obtained by SBS News via a Freedom of Information (FOI) request offers an insight into the reasoning behind the NTDPP's decision not to prosecute.
Internal memo anticipates 'anguish'
The email obtained through FOI is dated 26 May 2026 and was sent by the then acting director of the NTDPP Patrick Williams to all NTDPP staff announcing the news that no charges would be laid over White's death.
"Shortly following your receipt of this email, it will become public knowledge that I have determined there are no reasonable prospects of securing a conviction on any charge arising out of his death on the basis of the evidence provided by police," Williams writes in the memo.
He explains the decision would likely cause some "anguish" for White's family.
"For that reason, I have met with them on country this morning to inform them of the view that I have reached."
Williams goes on to explain the decision, noting that the department "may be the subject of some media criticism" as a result.
"That criticism may include questioning the integrity and independence of our office, noting the relationship between the NTDPP and NT Police Force," he writes.
You can be confident that the decision that has been reached in this case is one that has been made without fear or favour. It is a determination based solely on the available evidence.
To reassure staff further, Williams provided a timeline:
It notes that a police opinion file was delivered in September 2025, four months after White's death.
At that time, acting NT police commissioner Martin Dole told media that investigators had "compiled a full and comprehensive brief of evidence".
But the internal memo obtained by SBS News reveals prosecutors had asked police to obtain an additional independent report into the use of force in White's arrest "within days" of receiving the opinion file in September.
It was later revealed by Dole that this 'use of force' report was conducted by Queensland Police.
The email also shows Williams sought advice from external interstate senior and junior counsel on whether the evidence provided by police was sufficient to warrant prosecution.
Following news of White's death in custody, federal member for Lingiari Marion Scrymgour had called for the Australian Federal Police to run a separate investigation. White's family and community, based in Yuendumu, an Aboriginal community about 300km north-west of Alice Springs, also publicly called for an independent investigation.
The document suggests no other agency was approached to conduct an investigation, besides NT Police. The Northern Territory's coroner Elisabeth Armitage is now examining the case, with an inquest expected to occur next year.
A suppression order by Armitage prohibits the publication of anything in the brief of evidence, including CCTV of the incident inside Coles supermarket in Alice Springs.
Several interested parties will appear at the inquest including representatives for Coles Supermarkets, NT Police, Talice Security and sergeant Steve Haig.
'Stonewalled' for nearly a year
More than a year after the incident with police, White's cause of death remains undetermined.
Speaking on behalf of his family, CEO of the National Justice Project and lawyer George Newhouse tells SBS News that while the released memo provides some clarity about the decision not to prosecute the officers involved, little remains known about the charges that were considered.
"There is a charter of victims' rights in the Northern Territory, and it explains that people are entitled to be consulted. They're entitled to know the basis and the reasons behind a decision not to charge, and they're actually entitled to a review," he says.
Newhouse launched the now-discontinued legal action in the NT Supreme Court on behalf of White's senior next-of-kin, Ned Jampajimpa Hargraves, seeking further information about the decision not to charge anyone.
"The family had been asking for transparency for independent oversight of this investigation and the inquiry into Kumanjayi White's death. They got virtually stonewalled for nearly a year." The court action was withdrawn this month after police revealed the name and rank of one of the officers who made the call following the NTDPP's advice.
The decision over whether to pursue criminal charges in a death in custody case ultimately lies with the Director of Public Prosecutions. For White, this will also involve a referral from the coroner once the inquest into his death is complete.
White's family is now considering their options to take further action to find out what charges were considered by NT Police and the NTDPP.
Newhouse says the family were "horrified" to learn that the request by the NTDPP for an "independent interstate expert" to conduct the use of force report was ultimately fulfilled by Queensland Police.
"There are many academics who specialise in the use of force, including former police officers that could have been used to provide some independence," Newhouse says.
"The family are horrified that instead of seeking a truly independent report, the NT police and the DPP went to another police force with not the best track record of deaths in custody themselves.
"It gives the family absolutely no comfort that this report's been received."
Calls for reform
Following the decision not to prosecute in May 2026, Aboriginal and Torres Strait Islander social justice commissioner Katie Kiss renewed calls for justice reform.
"This case yet again highlights the urgent need to ensure that deaths in custody should be independently investigated. Police should not be investigating other police," she said in a statement.
Investigations must be conducted by organisations and individuals who have no potential or perceived conflicts of interest.
The call was initially backed by the Central Land Council in June 2025, which argued federal funding should be withheld from the NT until an independent investigation was set up.
Newhouse argues it's "not a transparent system".
"You can understand why First Nations people do not trust the police to investigate themselves when there's a death in custody," he says.
SBS News contacted the Northern Territory Police Force with a series of questions, including why it did not seek an independent use of force report prior to the NTDPP requesting it, why Queensland Police were ultimately commissioned for this, and why it isn't standard procedure for deaths in custody.
A spokesperson for police declined to answer specific questions, saying "the coronial investigation into the death of Kumanjayi White remains ongoing".
"It would be inappropriate for the Northern Territory Police Force to comment further."
Coronial inquest to be held
A four-week coronial inquest starting in April next year will examine the 24-year-old's death.
At a directions hearing in June, counsel assisting the coroner, Peggy Dwyer SC, said the inquest had not been able to be listed until the criminal investigation was finalised and would examine "the circumstances of why and how he [White] came to be restrained".
"The aim of an inquest is to get a truthful and proper account of what happened in the lead-up to Kumanjayi's death.
"We get that evidence to determine if there was any opportunity to do something differently that might have preserved Kumanjayi's life and to understand the circumstances."
The inquest was delayed until next year at the request of White's family so that all the evidence could be heard in one sitting block.
But Newhouse says the process is unlikely to satisfy the family's calls for accountability as it will focus on the circumstances.
"The family are also asking whether the police are investigating this death internally and trying to determine whether the officers involved complied with police policy and whether there will be any accountability through the normal internal police processes."
NT Police did not respond to questions put by SBS News as to whether an internal investigation had been conducted in line with its Code of Conduct, or if any internal mechanisms, processes or policies have changed since White's death.
Newhouse says the family remains committed to getting answers.
All the family have been asking for is justice, transparency, and independent oversight to ensure that the death of their loved one did not go without accountability.
Readers seeking support can ring Lifeline crisis support on 13 11 14 or text 0477 13 11 14, visit lifeline.org.au or find an Aboriginal Medical Service here. Resources for young Aboriginal and Torres Strait Islanders can be found at Headspace: Yarn Safe.
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