NT government appeals $800,000 payment to Kieran Webster, Josiah Binsaris, Leroy O’Shea and another Don Dale teenage illegally tear gassed in 2014

NT attempts to overturn a $200,000 payment to four boys who were illegally tear gassed in Don Dale a decade ago. See why the government claims it was not “callous” or “unreasonable”..

Four boys who were illegally tear gassed in one of Australia’s most infamous children’s prisons pleaded with guards for water as they were handcuffed and pinned to the ground.

This was the vision Territory government’s lawyers played to the Supreme Court of Appeal on Tuesday, arguing that the unlawful use of force on four Aboriginal teenagers in their cells at Don Dale Detention Centre was not “callous” or “unreasonable”.

Kieran Webster, Josiah Binsaris, Leroy O’Shea and another boy who cannot be named were awarded a total of $960,000 in September 2023, after the High Court and NT Supreme Court found that the use of tear gas on the four teenagers in the Youth Justice facility was illegal.

The appeal court heard that on August 21 2014 the four boys — two of whom have asthma — were locked in their cells and merely “bystanders” as another teenager escaped and caused damage in the Behaviour Management Unit.

No warning was given before the noxious gas started seeping into each of their locked cells, with a recording capturing a boy cry out: “I can’t breathe”.

The teenagers have described choking on the gas, their eyes and throats burning, as a video captured a laughing guard saying: “that’ll learn you … Now he’s shitting himself”.

The High Court and NT Supreme Court found that the use of tear gas on the four teenagers in the Youth Justice facility was illegal.

In September Justice Jenny Blokland found the unlawful use of the prohibited weapon in the youth detention facility went beyond “mere negligence” calling their treatment “callous” and stating: “it must never be allowed to happen again”.

A decade later, the Territory government is attempting to overturn more than $800,000 in exemplary damages arguing it was “manifestly excessive”.

It is not opposing the total of $140,000 — an average of $35,000 per boy — in total and aggravated damages.

NT government senior counsel David McLure argued there was not evidence of conscious wrongdoing, or a scornful and insulting disregard for the boys’ rights.

Mr McLure disagreed with Justice Blokland’s assessment there was a “systemic” failure by the government to ensure that Don Dale workers knew their use of force was illegal.

The High Court ruled in 2020 that while prison officers were authorised to use the gas in a Corrections facility, it was not lawful in a youth detention facility.

However, Mr McLure said it was unreasonable for these officers to have known the future ruling of the High Court, and they acted on the “honest and reasonable” belief they were able to gas the boys.

In September Justice Jenny Blokland found the unlawful use of the prohibited weapon in the youth detention facility went beyond “mere negligence”

“(A Senior worker) formed the view that the temporary discomfort of the respondents was preferable to the risk of serious and potentially and lasting injury, or permanent injury to (the boy) or the staff,” Mr McLure said.

Handycam footage from the night also showed officers egging each other on saying they would “pulverise the little f — ker” and “go grab the f — king gas, we’ll gas him”.

But Mr McLure argued that “punishing the Northern Territory for repelling things said by low-level Youth Justice officers will do nothing to prevent a reoccurrence of the decision … to deploying CS gas”.

The senior counsel for the ‘Don Dale four’ , Kathleen Foley simply put: “they were all treated as troublemakers, when they were indeed bystanders”.

Despite the potentially lethal gas being used in a confined space on two asthmatic boys, she said none of them were offered medical care until 10pm — about 45 minutes after they were gassed.

Ms Foley said ultimately, the fact that Don Dale workers did not know that their use of force was unlawful was a failing by the Territory government and it should feel the “sting” of the $800,000 penalty.

“They failed to protect those detainees from the unlawful use,” she said.

 The appeal judges adjourned the matter for further consideration.