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Teargassing of teenagers at Don Dale was unnecessary and unauthorised – court told

The teargassing of four boys in Darwin’s Don Dale youth detention centre was “manifestly unnecessary and unreasonable” and had no authorisation from any government document, the Northern Territory supreme court has heard.

It also heard allegations that three of the boys were given inadequate medical treatment for the effects of teargas, including one whose eyes were not examined because his spithood was not removed.

Four of the six teenagers involved in a now infamous incident inside the Darwin facility in August 2014 are suing the NT government, alleging the treatment they were subjected to amounted to assault and battery.

The case is one of two civil suits going before the courts relating to the Northern Territory’s controversial youth justice crisis.

Teargassing of teenagers at Don Dale was unnecessary and unauthorised - court told
Teargassing of teenagers at Don Dale was unnecessary and unauthorised – court told

The six had been held in isolation in the behavioural management unit (BMU), 23 hours a day for between six and 17 days following incidents including an attempted escape.

One got out of his cell and began causing damage, and guards deployed teargas under authorisation from the then corrections commissioner, Ken Middlebrook. The other detainees remained in their cells but were also subject to teargas.

The six youths were handcuffed, hooded and transferred to the adult prison.

The four plaintiffs in Monday’s case were aged 15, 16, and 17 at the time, and their barrister, Kathleen Foley, said the claim for damages would centre around the use of teargas, the use of handcuffs, the transfer to the adult facility, and the treatment three of the boys were subject to once there.

The NT government had abandoned an earlier defence of shackles and spithoods, conceding they were “excessive under the circumstances” but has maintained the use of handcuffs and teargas was justified.

Foley told the court the teargas was a potential breach of the weapons control act, and not authorised by legislation or the youth detention and remand centres procedures and instructions, even in an emergency response.

The five boys not outside their cells at the time were also subjected to the gas for up to eight minutes before being removed, and footage broadcast to the court showed two covering themselves with blankets to escape the gas.

Training material also dictated chemical agents should never have been used on people confined or detained, said Foley, adding that even if the judge found its use to be authorised, the plaintiff’s claimed it remained neither reasonable or necessary.

She said it was known to authorities that two of the boys suffered from asthma.

Extended footage of youth justice officers attempting to negotiate with the escaped detainee, and another later saying he would “pulverise the fucker” was also shown.

Lawyer for the NT government, David McClure, said he would argue the teargas was authorised, because Middlebrook drafted in prison officers and delegated them powers similar to police officers.

Legislation allowed the use of the gas, he said, and officers acted in self-defence and with necessary use of force to end the disturbance.

McClure submitted incident reports on the plaintiffs’ behaviour before the disturbance, and said the six were “difficult and sometimes dangerous detainees”.

He said there was nothing in the legislation cited which prefered the safety of detainees over staff, and he presented CCTV footage which he alleged showed at least one detainee threatening staff. The detainee disputed the claim.

After the teargassing the boys were brought outside the cells, with arms handcuffed behind them, and were laid on the ground and sprayed with a hose.

“A good deal more is required to provide adequate care,” Foley alleged, accusing the officers of falling “far short” of what was required even by the department’s own standards.

She said the medical care received at the adult prison, up to an hour later, was “cursory at best” and that records showed three of the boys were seen for just one and two minutes each.

She said one boy’s eyes were not examined because his spithood was not removed, and another was made to wear his contaminated clothes for the next four days, against directives which say they should be discarded.

McClure indicated they would be disputing key claims made by the plaintiffs about medical care and treatment in the adult prison.

A previously unseen video clip showed three boys being handcuffed, shackled, and spithooded at the adult prison.

The boys are suing the NT government for injury, loss and damage, including extreme distress and humiliation. Settlement negotiations are continuing as the trial proceeds, and the chief minister, Michael Gunner, on Monday said the government recognised there were some grounds for a case the be brought against it, but was negotiating “in good faith”.

Over the next 10 days the four detainees are expected to give evidence, as are three adult prisoners to serve as witnesses, and a number of past and present corrections staff members, including Middlebrook.

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