The High Court has reversed the Northern Territory Supreme Court’s ruling on four teenagers who were tear-gassed at Don Dale Youth Detention Centre in August 2014, finding the incident unlawful and ordering the NT Government to award damages.
In a majority ruling, the High Court found that the “deliberate and intentional” use of the tear gas towards the teenagers was unlawful under the NT Youth Justice Act and amounted to battery.
The defendants, represented by barrister Bret Walker SC, had appealed against the NT Supreme Court’s ruling that prison officers were authorised to use tear gas during the incident when guards tried to subdue a lone detainee who had left his cell.
They previously rejected a $150,000 settlement on the eve of their trial in 2018.
Northern Territory Supreme Court Judge Judith Kelly had previously ruled that the tear-gassing was “reasonable and necessary.”
But the High Court found exemptions allowing the guards’ use of the gas, which is classified as a prohibited weapon, did not apply in the youth detention centre and that its use resulted in “battery” on the detainees.
Damages will be determined later.
In August 2014, a violent confrontation broke out between correction staff and detainee Jake Roper, who escaped his cell.
Corrections reports said Roper was uncontrollable while “engaging in the exercise yard in violent and erratic behaviour assessed to pose a danger to staff.”
Three prison officers from the nearby adult jail were called in to respond to the unrest, when tear gas was used.
The court heard the gas affected four other detainees, Josiah Binsaris, Leroy O’Shea, Keiran Webster and a fourth person who cannot be named. They were locked in their rooms during the tear-gassing.
Although initial reports stated that six teenagers were tear-gassed in the 2014 incident, only four were involved in this legal proceeding.
High Court Chief Justice Susan Kiefel and Justice Patrick Keane wrote that the tear-gas was not allowed under Northern Territory laws.
“It is no part of a prison officer’s function to use a weapon in a youth detention centre,” the ruling stated.
The graphic footage of the tear-gassing and other acts including the use of spit hoods, leg shackles, and handcuffs shown on ABC TV’s Four Corners expose in 2016 had led to the 2017 Royal Commission into the Protection and Detention of Children.
The commission recommended the use of tear gas in youth prisons be banned.