NT government launches appeal of $800,000 in damages to four teenagers tear gassed in Don Dale

A Don Dale guard was recorded saying he would ‘pulverise the little f*cker’ before four teenage bystanders were unlawfully tear gassed. See why the NT government is trying to appeal their $800,000 payout.

The Territory government has appealed a $1m payout to four Aboriginal boys who were tear gassed, handcuffed and sprayed down with fire hoses on a basketball court while locked up in one of Australia’s most infamous children’s jail.

Kieran Webster, Josiah Binsaris and Leroy O’Shea and another boy who cannot be named were all locked in cells at Don Dale Detention Centre when they were tear gassed as Corrections staff tried to subdue another teenager in August 2014.

Nine years after the incident and following a series of appeals, Supreme Court Justice Jenny Blokland found the use of the gas was unlawful and awarded the four teens a total of $960,000 on September 1.

In an appeal lodged just 10 days later, the NT government claimed the awarding of $200,000 in exemplary damages to each of the victims was “manifestly excessive”.

The appeal did not seek to overturn the $140,000 in total general and aggravated damages awarded to three of the four boys.

In her September judgement Justice Blokland highlighted the NT government “strongly opposes any award of exemplary damages” and had never apologised for their treatment of the four boys.

Kieran Webster, Josiah Binsaris and Leroy O’Shea and another boy who cannot be named were all locked in cells at Don Dale Detention Centre when they were tear gassed as Corrections staff tried to subdue another teenager in August 2014.

Justice Blokland found the unlawful use of tear gas went beyond “mere negligence” calling the treatment “callous”.

Handycam footage played to the court showed the guards making disparaging comments and being hostile towards detainees.

“Go grab the f**king gas, we’ll gas him ... get Jimmy to gas him through here,” one officer was recorded saying.

“I’ll pulverise the little f**ker. Oh shit, you’re recording,” another said.

The then-teenagers described choking on the tear gas with their eyes and throats burning, while a recording captured one guard laughing and saying: “That’ll learn you … Now he’s shitting himself”.

The asthmatic Mr O’Shea said he thought he was going to die: “The worst thing was not knowing how long it was going to last and how long we were going to have to sit in there and burn.”

A window at the old Don Dale Youth Detention Centre in Darwin that featured in the infamous tear gas incident. Picture: Amos Aikman/The Australian

The court heard the Royal Commission into the Protection and Detention of Children in the Northern Territory had shown tear gas was used on children with “no guidelines, or legislative or policy safeguards, specific to youth detention centres regulating its use or any research results available as to the lethal contamination time in children”.

In 2016 the NT government prohibited the use of the gas in youth detention, although it said in 2018 this did not apply to NT Police deployed to the children’s jail.

Justice Blokland said the exemplary damages were needed to ensure it “must never be allowed to happen again”.

In its appeal the NT government’s solicitor Maria Pikoulos argued Justice Blokland was incorrect in finding the workers “engaged in conscious wrongdoing or acting in contumelious (scornful and insulting) disregard of the respondent’s rights”.

Ms Pikoulos also argued the court was wrong to award damages over the claim the government “allowed an environment to exist where senior officers did not know the extent of their powers”.

Originally published as NT government launches appeal of $800,000 in damages to four teenagers tear gassed in Don Dale