Josiah Binsaris, Kieran Webster, Leroy O’Shea and 16yo boy lose $800k over illegal Don Dale tear gassing

The NT Supreme Court has axed a $800k payment to four Aboriginal boys who were illegally tear gassed while locked in Don Dale, saying their assault was an ‘honest mistake’.

Josiah Binsaris, Kieran Webster, Leroy O’Shea and another 16-year-old boy were who cannot be named were locked in the Behaviour Management Unit, when Youth Justice Officers released tear gas into their cells. Picture: (A)manda Parkinson

Four boys who were unlawfully tear gassed in Australia’s most notorious children’s prisons have been denied a $800,000 pay out.

On Friday Supreme Court Justice John Burns handed down the full court of appeal decision striking out $200,000 in damages to each of ‘the Don Dale four’. 

Josiah Binsaris, Kieran Webster, Leroy O’Shea and another 16-year-old boy were who cannot be named were locked in the Behaviour Management Unit, when Youth Justice Officers released tear gas into their cells in order to stop another teenager who was “ on a rampage” on August 21, 2014.

Over a decade of appeals the High Court ruled that the use of the riot control agent on children was a breach of the Weapons Control Act, with the teenagers granted damages for the assaults and batteries.

The Supreme Court heard that in the lead up to the incident the Aboriginal teenagers were consistently left in their cells for 23 hours a day.

Footage taken from the so-called “riot” at Don Dale Youth Detention Centre in August 2014 shows corrections officers tear-gassing six kids — most of whom were in their cells — wrestling them to the ground and calling them “little f****rs”.

That evening Binsaris and the 16-year-old were kicking on their doors, damaging their cells and yelling “f—k you. You are f—king us around”, but Mr Webster and Mr O’Shae were not causing any disturbance.

That evening another teenager broke out of his cell and started “yelling” and “running around” smashing windows and a computer, with Youth Justice Officers then pumping in tear gas to subdue him — a use of force the High Court ruled was unlawful.

In September 2023 Supreme Court Justice Jenny Blokland awarded the four teens a total of $960,000 in damages, saying the use of tear gas went beyond “mere negligence” calling their treatment “callous”.

The then-teenagers said as the gas filtered into their confined cells, they thought they were going to die as they choked on the fumes and their eyes and throat started to burn. 

Mr Webster told the court that it was as if a “bomb” had gone off.

“At first we were kind of joking about dying and then we started to seriously believe it because it was just so hard to breathe,” the then 15-year-old said.

“I thought that I was eventually going to stop breathing. We started shaking each other’s hands and saying our goodbyes.”

Footage taken from the so-called “riot” at Don Dale Youth Detention Centre in August 2014 shows corrections officers tear-gassing six kids — most of whom were in their cells — wrestling them to the ground and calling them “little f****rs”.

Mr O’Shea, who had asthma, said: “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.”

Handycam footage played to the court showed the guards making disparaging comments and being hostile towards the children, with one officer saying “Go grab the f—king gas, we’ll gas him”.

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

Another guard was captured laughing, saying “That’ll learn you … Now he’s shitting himself”.

The Supreme Court heard the Royal Commission into the Protection and Detention of Children in the Northern Territory revealed that 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”.

However 18 months after Justice Blokland’s decision, the full court of appeal said it was an error to award $800,000 in exemplary damages.

They found at the time Youth Justice Officers did not know that the use of tear gas on children was unlawful, and believed their actions were necessary in the emergency circumstances.

The full court of appeal said it was an error to award $800,000 in exemplary damages.

“While it is no doubt correct to say that senior officers working in a youth detention centre should know what types of force may, and may not, be used in that setting, that is not to say that an honest mistake on their part will necessarily ground an award of exemplary damages,” Justice Burns said.

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

This means after 11 years of legal battles, Mr Webster and Mr O’Shea will only receive $50,000 each, with the 16-year-old will receive $40,000 and Mr Binsaris will get $20,000.

Justice Burns said the payments would be subject to a 4 per cent per annum interest rate dating back to 2014.

On Tuesday the North Australian Aboriginal Justice Agency, who represented the four teenagers, said they were assisting its clients to review the decision and consider their appeal options.

“After 10 years the Northern Territory Government is still unwilling to acknowledge the seriousness of tear gassing young people in their care and has sought to litigate rather than resolve the claims of the youth affected,” a NAAJA spokesman said.

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.

Originally published as Josiah Binsaris, Kieran Webster, Leroy O’Shea and 16yo boy lose $800k over illegal Don Dale tear gassing