'Australia is a Crime Scene': The 20th Anniversary of TJ Hickey's Death

Hickey was 17-years-old when he was impaled on a metal fence after riding his bike by a NSW Police vehicle. His story is often harked back to in NSW Aboriginal politics and the conversation around Aboriginal deaths in custody, and it continues to have a devastating impact on the Redfern Aboriginal community, especially due to the contested role of police in his death.

The events after Hickey’s death were, as described by a 2019 petition presented by NSW Greens senator David Shoebridge on behalf of the Hickey family, an “inadequate” police investigation and “incomplete” coronial inquest. 

A transcript of an ABC 7:30 report from 2004 reveals some of the key attitudes from police and politicians in the months following Hickey’s death — as well as during the coronial inquest. 

Initially, police denied any role in the death. At the time, NSW Police Commissioner Ken Moroney told the ABC that the two police vehicles in the area were instead focused on apprehending a suspect. 

“It was a matter of happenstance that Mr Hickey rode past the police,” said Moroney. “[The police] didn't give him a second thought”. 

This was supported by Bob Carr, then NSW Premier, who claimed there were no sirens or “squealing tires”.

“Indeed, it took the police and the vehicle some minutes to return when they were alerted to the bicycle accident,” he said.

Even John Howard, Prime Minister at the time, publicly stated he didn’t “see any evidence, though, that he was being pursued by the police. I think the allegations that have been made against the police are unreasonable.”

But a coronial inquiry into the incident delivered conflicting police accounts of the events preceding Hickey’s death.

According to events established in the coronial inquest and detailed further in the findings of the Coroner, two police constables were manning the police wagon “Redfern 16” when Hickey passed them on his push bike. They followed him down a couple streets before Hickey reached a pathway that would lead to another street. Redfern 16 had mounted the kerb and followed Hickey down this same pathway. After crossing the next street, Hickey’s bike hit the metal fence and he was mortally wounded. 

Both constables failed to mention in their individual incident reports that they had mounted the curb and pursued Hickey on the footpath. Matt Peacock, reporting for the ABC, hypothesised that the constables omitted this because police paddy wagons are not permitted to engage in pursuits. 

One of the constables refused to testify during the coronial inquest, on the grounds that it might incriminate him. The other did testify but used the phrase “I don’t recall” so many times that even the Coroner’s Counsel, Elizabeth Fullerton, commented that, "a failure to recall is sometimes not an honest answer.” 

From these accounts, a significant portion of the inquest was about determining whether Hickey was “followed” or “pursued” by police. The NSW State Coroner, John Abernethy, found that Redfern 16 was following the boy but not pursuing him. He then labelled Hickey’s death as a “freak accident”.

Members of the Aboriginal community, including Raul Bassi from the Indigenous Social Justice Association, rejected this judgement.

“If you’ve got a person in a car going behind someone on a bike – if the car is going down the same road – then that’s pursuing,” they told Sydney Criminal Lawyers.

Hickey’s death could be considered an Aboriginal death in custody if we used the definition provided by the Federal Court in Eatts v Dawson, a 1990 case to determine whether the death of Aboriginal man David John Grundy came under the jurisdiction of, and could be investigated by, the Royal Commission into Aboriginal Deaths in Custody. Mr Grundy had been shot during the course of a house raid by NSW Police, who were looking for someone else, and NSW Police argued he wasn’t a “death in custody” because was not under arrest at the time of his death. 

The Federal Court found that, “to confine the meaning of ‘custody’ to ‘that state which follows arrest or similar official act’ is, in our opinion, to pay too close a regard to legal forms rather than the substantive character or quality of police activity.”

Further, the case established that a person is “in custody” if they are “watched or guarded by police”. 

However, police pursuits such as car chases were excluded from the scope of inquiry by the Royal Commision Into Aboriginal Deaths In Custody 1991 and the Hickey Coronial Inquiry findings of being “followed” would exclude Hickey’s death from this definition, even if police pursuits were analysed in the report. 

This is not definitive though, as explained by the Australia Human Rights Commission: “the “definition of [an Indigenous] death in custody has been both problematic and contested.”

This means calls from the Aboriginal community labelling Hickey’s death as a “death in custody” are not strictly incorrect. They reflect the story as told by community eyewitnesses, which the Hickey family say were never approached to be heard at the coronial inquiry. 

And these assertions are still being made, 20 years on.

The Hickey family continues to address the “unanswered questions”. Gail Hickey, TJ’s mother, told NITV on Wednesday she’s continuing to march because "I’ve got to fight 'til I get justice." 

Gumbaynggirr/Dunghutti/Bundjalung activist Lizzie Jarrett took time on Wednesday to connect the Hickey’s fight to the ongoing violence experienced by First Nations people

”Twenty years since a young teenage boy was innocently riding his bike through his neighbourhood and NSW Police decided he must be committing a crime because he was Black,” she said.

“I don’t want to be sad and angry ... but today is a day about being sad and angry. Today is a day that shows the reality that Australia is a crime scene that we still live in.”

Phoebe is McIlwraith is a Bundjalung and Worimi dubay/galbaan writer and content producer based in “Sydney”.