NT youth detention royal commission: inmate v guard assault questioned

Footage of an incident at the Don Dale youth detention centre may be misleading, inquiry hears.

A juvenile inmate shown in footage highlighted by the child detention royal commission as evidence of a potentially serious incident in custody late last year may actually have assaulted prison staff rather than the other way around.

Counsel assisting the Royal Commission into the Protection and Detention of Children in the NT, Tony McAvoy SC, began yesterday by tendering the footage and pointedly remarking that the incident in December had occurred “on the same day that this commission was hearing evidence from Dylan Voller”. He did not explain why that coincidence was relevant.

Mr McAvoy did not simultaneously tender documents reflecting the Northern Territory government’s version of events, it appears due to problems with document management.

Claims by the witness, known only as BH, have been at the centre of a stoush between lawyers over procedural fairness that yesterday saw the NT Chief Minister, Michael Gunner, wade in and warn the commission that findings based on improper processes could harm children.

In his statement, BH alleged that guards had grabbed him while he was “pacing around, upset and crying” and forced him to the floor, causing him to “black out”.

“When I came to, the guards were on my back, holding me down, pushing my face into the concrete,” his statement said.

“They were yelling at me, ‘Stop resisting’, but I wasn’t resisting, and they kept pushing me back down. I was swearing because I was in a big mob of pain.”

But documents the Territory submitted in response, now released in partially-redacted form to The Australian, paint a very different picture. Several incident reports state that BH had been in his cell graffitiing the walls and “smashing his louvres” and then kicked the door until he broke the lock.

“Upon entry, the detainee swung a clenched fist at entering staff,” one document states. “Detainee was ground stabilised … detainee shirt was removed so a thorough search could be conducted.”

The sequence of events is difficult to reconstruct due to the commission redacting dates. There are photos of minor grazes of the type a young man might get from tripping on a pavement.

Another document headed, “Assault no injury — prisoner on employee/other” records that when youth justice officers tried to reason with BH and get him to stop writing on the walls “he replied with the words ‘F … k you’ every time’.”

The incident shown in the footage the commission released appears to have occurred after BH was moved to higher security cell because he had damaged his own. Guards’ descriptions of what happened next also record BH walking around “upset and crying and “looking amped up”, but there the accounts differ.

“Detainee (redacted) began to punch a viewing window on one of the room doors; he then walked to the mesh gate to the yard and began to kick at it. I then approached (redacted) and told him to cease his actions and to calm down. As I approached (redacted), he told me to ‘F … k off’,” the report of a second ‘assault no injury — prisoner on employee/other’ states.

“I tried to inform (redacted) that I had got a room with a TV and a fan set up for him in an attempt to de-escalate the situation when he slapped a football from my hands. Then without warning (redacted) lunged at me grabbing (me) by the collar of my shirt and attempting to strike at me.

Guards wrestle a young man to the ground at the Don Dale youth detention centre in footage tendered to the NT royal commission.

“Senior Youth Justice Officer (redacted) then came to assist me in the ground restraint. Due to the movement, I was pull(ed) off balance by (redacted) which made my momentum roll forward on top of him. (Redacted) was then control(led) on the ground with his arms behind his back. (Redacted) complained of a sore head, indicating to the rear of his head. (Redacted) was escorted to (redacted) and informed that a nurse would be called to assess him. (Redacted) was informed he would be put on a placement due to his attempted assault on an officer.”

The commission’s footage only showed the officers walking up to BH, briefly interacting with him and then tackling him to the ground.

Late on Tuesday, Mr McAvoy objected to putting the Territory’s version of events to BH as the Solicitor for the NT, Sonia Brownhill, had requested under the commission’s rules.

“I’ve been put in the position where I have to take a vulnerable witness of tender age to a range of propositions that are not clearly made out with photos that are not provenanced,” Mr McAvoy said.

“If each individual point of difference between an incident report and a statement provided by a vulnerable witness has to be tested, then we need significantly more time, commissioner. The way in which — the questions that are being posed by the Solicitor for the Northern Territory and their document, they’re not questions that can simply be asked of a vulnerable witness cold. I would object to doing that, commissioner.”

Ms Brownhill pressed the Territory’s case, noting “disjuncts” in BH’s evidence such as his claim to have been strip searched when documents recorded only a pat-down search.

“Those kind of issues, to the extent that the commission will be asked to make findings about what actually happened in relation to a particular incident are, in our submission, critical to be part of the testing of the evidence given by the vulnerable witnesses,” Ms Brownhill said.

“I understand … that the decision that has been made by counsel assisting about whether to ask questions … and what questions to ask, is founded on a discussion that counsel assisting is having with the vulnerable witness before the cross-examination is undertaken.”

“We seek to have the different picture put to the witness so that his evidence can somehow be tested by reference to what is set out in those documents. My learned friend now suggests that the process is not only that we will identify the matters for cross-examination and put those before counsel assisting, but that he will somehow decide not to pursue them all on the basis, apparently, (a) of a discussion with the witness, and (b) a view about whether or not those documents are reliable.”

Commissioner Margaret White temporarily stood the witness down but later ruled the inquiry would accept evidence from “vulnerable” in the manner counsel assisting and the witnesses’ lawyers saw fit, even if that limited the inquiry’s ability to make detailed findings.

Mr Gunner said yesterday that a complaint by BH about the December incident had been investigated by two key agencies and the child’s lawyers, and subsequently dropped, before the commission chose to highlight it.

“In response to this situation, NAAJA (the youth’s lawyers) were given access to all the footage from all the angles, as were the Department of Territory Families and the Children’s Commissioner, and the complaint … wasn’t pursued after all scrutiny was applied to the situation,” Mr Gunner said.

Commission spokespeople have not answered questions about whether the inquiry was aware of those investigations at the time the footage was tendered. Asked whether the Territory’s version of events had been put to the witness, a spokeswoman said:

“All documents sought to be tendered by the NTG in relation to vulnerable witness BH were tendered with the exception of one tab containing four photographs. The NTG has been invited to come back to the Commission on their relevance and provenance.

“The NTG did not provide questions to be asked of the witness. The NTG provided topics for cross-examination. Those topics were traversed by counsel assisting in the course of the witness’s examination or were already admitted in the statement.”