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Brull, Michael --- "Top Blokes, Totally out of Character: When Five White Men Beat an Aboriginal Man to Death - R v Doody & Ors" [2010] IndigLawB 27; (2010) 7(19) Indigenous Law Bulletin 21


Top Blokes, Totally out of Character: When Five White Men Beat an Aboriginal Man to Death - R v Doody & Ors[1]

Michael Brull

These are the facts, as they were agreed to by the perpetrators. After a long night of drinking, Scott Doody, Timothy Hird, Joshua Spears, Anton Kloeden, and Glen Swain left a casino at 6 o’clock in the morning of 25 July 2009. They ranged in age from 18-23. Most of them were drunk, but Kloeden, the driver, was not.

Kloeden, in the words of Martin CJ, then thought it would be fun to 'take on the challenge of driving along the Todd River bed to the Telegraph Station'.[2] Even more fun, Kloeden then 'made the offensive and stupid decision to harass the Aboriginal people camped in the riverbed'[3] by the Schwarz Crescent causeway. They drove towards a group of at least six campers. The campers fled to trees for safety, except for an elderly Aboriginal person, who was unable to respond with adequate speed. Kloeden drove within a metre of him, with the intention of terrifying him by narrowly missing him.

Having driven away, Kloeden turned the car back to the camp due to a fenced off exit. Kloeden had not yet had enough fun for the night: he drove over the elderly man’s swag as they passed the camp again. One female camper, who saw the young men coming, threw a small log at their car. Some of the men got out of the car and ‘yelled abuse’[4] at the Aboriginal campers. The form of this abuse was not recorded in the judgment.

The night, now morning, was not yet over. Kloeden thought there was more fun to be had, so he drove at another Aboriginal camping group. The three Aboriginal people were sleeping. They were woken up by the car speeding towards them, and fled for their lives. Kloeden parked near the campers, and again ‘words were exchanged’.[5] Chief Justice Martin did not think it worth recording the nature of the words exchanged. However, journalist Bob Gosford interviewed several witnesses, including campers. They explain that the five white men called the Aboriginal campers ‘black bastards’ and ‘niggers’. The five white men also told the ‘black cunts’ to ‘f**k off out of this Todd River’.[6]

After this, the group decided to return to the home of Hird and Swain. Fun was still to be had. Once there, the group picked up more alcohol, Hird's gun and blank ammunition. They drove along and Hird shot his gun, though at one point it jammed. As they approached Schwarz Crescent causeway, they stopped the car so that Hird could fix his gun. Having fixed it, he shot it again. Chief Justice Martin noted that the car was intentionally stopped so that Hird would be able to 'scare the Aboriginal occupants'[7] of the camp they had terrorised previously.

This goal was achieved. As Swain testified to the police, the campers began running, and obviously 'feared for their lives',[8] according to the judge's rendition of Swain. Hird plainly contributed to this by holding the pistol outside the car in the direction of the camp.

An Aboriginal man, Kwementyaye Ryder, was one of the campers who had been terrorised by Kloeden's driving in the first instance. He responded this time by throwing a bottle, which hit the side of the car.

Kloeden immediately executed a sudden u-turn. He stopped so close to Ryder that Ryder could grab the bullbar. All four passengers raced out of the car, with Hird the first one out. Without checking the damage to the car, they chased Ryder, who tripped and fell. Confronted with a man 'lying defenceless and incapable of posing any threat to any of the offenders',[9] they repeatedly kicked him in the head, and Spears struck his head with a bottle. They told him 'Don't f**k with us'.[10]

Swain, who had kicked Ryder in the head twice, noticed that the man was lying motionless, and that something was plainly wrong. He called out 'Let's go', considering that the most appropriate reaction. They climbed into the car. Kloeden was still in the car because he was executing a three-point-turn. Apparently untroubled by what he saw, Kloeden was 'seen to drive away at a leisurely, normal pace'.[11]

The men proceeded to lie to the police over the course of a week. Swain and Kloeden lied to the police, saying that they had gone by themselves to a racecourse and fallen asleep there. Hird lied to the police, saying that he had gone to the casino with Doody and had not seen Swain or Kloeden. Justice Martin did not comment on it, but the matching alibis point to some collusion among the defendants.

Chief Justice Martin noted that it was apparent that the offenders 'would inevitably be caught',[12] which may help explain why Swain offered a full confession within a week. Out of the group of five, Swain was the 'only person who made a full and frank confession to the police and who gave them every assistance possible'.[13]

Those are the facts. Chief Justice Martin then had the task of interpreting them. He concluded that this 'crime is toward the lower end of the scale of seriousness for crimes of manslaughter'.[14] Not enough violence was inflicted, and the defendants supposedly could not have foreseen a serious risk of death from their violent attack. Repeatedly kicking someone in the head and hitting him with a bottle and then fleeing while the victim lies motionless is apparently not recklessness, but negligence to Martin CJ.

Chief Justice Martin then considered the possible value of inflicting a heavier sentence for the purposes of deterrence. He dismissed this too. His grounds for this are particularly striking: the violence 'arose out of an angry and aggressive reaction to a perceived insult'.[15] Plainly, there could be no value in deterrence with a mere crime of violence perpetrated by intoxicated youths responding to a perceived insult.

What did not feature in the judge’s discussion of deterrence was what he acknowledged repeatedly to be the 'atmosphere of antagonism towards Aboriginal persons'[16] manifested by the defendants. Nor was this mentioned as an aggravating feature. Which goes much of the way towards explaining his lenient sentencing: Doody, who did not physically strike Ryder, was sentenced to four years’ imprisonment, to be suspended after 12 months. Hird, Kloeden and Spears were sentenced to six years’ imprisonment, with a non-parole period of four years. Swain had half a year taken off both measures, on account of his confession.

Yet there is one other factor which played a crucial role in Martin CJ's sentencing, arguably the most appalling part of his decision. Chief Justice Martin went out of his way to provide character references for every single defendant. Doody is 'a person of positive good character'.[17] Hird is a 'solid, hard-working young man of good character'.[18] Kloeden has an 'underlying good character'.[19] Spears is a 'person of very good character'.[20] Swain, like Kloeden, was a 'person of underlying good character'.[21] These men of good character repeatedly terrorised Aboriginal people for being Aboriginal, before using a gun to terrorise them further, ending the night by beating a man to death, and then casually driving away without checking if their victim was okay.

Chief Justice Martin's grounds for these conclusions are astonishing. He notes character references in their favour, proving that many of them have friends and employers who think nice things about them. This hardly balances out what they did. He then scrapes the barrel in special pleading on their behalf, holding, for example, that Spears had never previously 'come into contact with the criminal law'.[22] Considering he was 18 at the time, this is hardly such an achievement. Hird, Kloeden, and Swain, on the other hand, despite their youth had previously had difficulties with the law. Yet Justice Martin was able to claim that this was 'totally out of character'[23] for all of them, and also that they were 'genuinely sorry'.[24]

Presumably he was able to judge their tremendous remorse from how they casually left behind the motionless man, who soon died as a result of the injuries inflicted upon him during the beating. This too was in their character. Or perhaps their remorse was manifested in the lies they concocted to tell the police. Or perhaps he judged their remorse from the fact that four out of the five did not cooperate with the police at all. The only one who spoke to police did so when it was already apparent that they would be caught.

What was missing from Martin CJ's sentencing remarks, and sentence, was a sense of revulsion at what the men had done. The five young men engaged in recreational activities that would not be out of place in a gathering of Klansmen.

This disgusting crime was not just an attack on Kwementyaye Ryder. It was an attack on Aboriginal people in Australia. It - and Martin CJ's judgement - was an attack on our decency as a people. I am appalled as a human being to live in a country where such a terrible crime can take place, where the media and public intellectuals (with the honourable exception of Chris Graham, editor of the National Indigenous Times, who gave me the judgement) have reacted with complete indifference.

I am horrified as a Jewish person to live in a country where a member of a small, vulnerable minority can be victimised in such a shocking manner, and the perpetrators can still be described as basically good people.

And I am ashamed as an Australian that this is the country I live in.

Michael Brull is studying a Juris Doctor at the University of New South Wales. He has written for the National Times, Overland, ABC The Drum, newmatilda, and a featured blog for Independent Australian Jewish Voices. He is active with Stop the Intervention Collective Sydney.


[1] (Unreported, Supreme Court of the Northern Territory, Martin (Br) CJ, 23 April 2010).

[2] Ibid [12].

[3] Ibid.

[4] Ibid [16].

[5] Ibid [17].

[6] Bob Gosford, ‘The Black Heart of Australia?’ ABC Drum (28 December 2009), available at <http://www.abc.net.au/unleashed/stories/s2781473.htm> .

[7] Martin CJ, above n 1[41].

[8] Ibid [23].

[9] Ibid [119].

[10] ABC Television, ‘A Dog Act’, Four Corners, 19 July 2010(Liz Jackson).

[11] Martin CJ, above n 1[74].

[12] Ibid [75].

[13] Ibid [99].

[14] Ibid [111].

[15] Ibid [115].

[16] Ibid [119].

[17] Ibid [130].

[18] Ibid [71].

[19] Ibid [81].

[20] Ibid [92].

[21] Ibid [106].

[22] Ibid [92].

[23] Ibid [51], [52], [56], [69], [80], [95], [104], [106], [119].

[24] Ibid [88], [100], [107], [119].