Binsaris v Northern Territory

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON AND EDELMAN JJ

Matter No D11/2019

JOSIAH BINSARIS  APPELLANT

AND

NORTHERN TERRITORY OF AUSTRALIA  RESPONDENT

Matter No D12/2019

KEIRAN WEBSTER  APPELLANT

AND

NORTHERN TERRITORY OF AUSTRALIA  RESPONDENT

Matter No D13/2019

LEROY O'SHEA  APPELLANT

AND

NORTHERN TERRITORY OF AUSTRALIA  RESPONDENT

Matter No D14/2019

ETHAN AUSTRAL  APPELLANT

AND

NORTHERN TERRITORY OF AUSTRALIA  RESPONDENT

Binsaris v Northern Territory
Webster v Northern Territory
O'Shea v Northern Territory
Austral v Northern Territory

[2020] HCA 22

Date of Hearing: 18 March 2020
Date of Judgment: 3 June 2020

D11/2019, D12/2019, D13/2019 & D14/2019

ORDER

In each matter:

1.Appeal allowed with costs.

2.Set aside paragraph 1 of the orders made by the Court of Appeal of the Northern Territory on 18 February 2019 and paragraph 1 of the orders made by the Court of Appeal on 10 April 2019 and, in their place, order that:

(a)the appeal be allowed with costs;

(b)set aside paragraph 1(a) of the orders made by the Supreme Court of the Northern Territory on 21 March 2017 and in its place order that there be judgment for the plaintiff on the claim for damages for battery arising out of the use of CS gas at Don Dale Youth Detention Centre on 21 August 2014;

(c)set aside paragraph 1 of the orders made by the Supreme Court of the Northern Territory on 3 December 2018 and in its place order that the defendant pay the plaintiff's costs of and incidental to the proceedings to be taxed on the standard basis. (These costs are to include the costs of all interlocutory proceedings other than those which have been the subject of separate costs awards); and

(d)the matter be remitted to another judge of the Supreme Court of the Northern Territory for assessment of damages.

On appeal from the Supreme Court of the Northern Territory

Representation

B W Walker SC with K E Foley and J A G McComish for the appellant in each matter (instructed by North Australian Aboriginal Justice Agency)

D A McLure SC with T J Moses for the respondent in each matter (instructed by Solicitor for the Northern Territory)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. KIEFEL CJ AND KEANE J. The Don Dale Youth Detention Centre is located in the Northern Territory. It was at the relevant time approved as a youth detention centre under s 148 of the Youth Justice Act (NT). On 21 August 2014 the appellants and others were detained in the Behavioural Management Unit of the detention centre when another detainee, Jake Roper, escaped from his cell, damaged property and caused a serious disturbance. The appellants Josiah Binsaris and Ethan Austral participated to the extent of damaging property in their cells. Details of the conduct which was engaged in are set out in the reasons of Gordon and Edelman JJ.

  2. The superintendent of the detention centre contacted…

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Details
Case
[2020] HCA 22
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by detainees against the Northern Territory, who claimed damages for battery arising from the use of CS gas at the Don Dale Youth Detention Centre. The dispute centred on whether the prison officers' deployment of CS gas, a prohibited weapon under the *Weapons Control Act* (NT), was lawful, or if any exemptions or delegations of authority rendered their actions permissible.

The legal issues before the Court were whether the prison officers were acting in the course of their duties such that an exemption under the *Weapons Control Act* applied, whether their actions were authorised by a delegation of the superintendent's powers under the *Youth Justice Act* (NT), and whether they possessed the powers of a police officer under the *Prisons (Correctional Services) Act* (NT) that might have authorised the use of CS gas. The Court was required to determine if the use of the CS gas constituted a battery, and if so, whether any statutory provisions provided a defence or positive authority for such an action.

The High Court reasoned that even if the prison officers were considered "prescribed persons" under the *Weapons Control Act*, any exemption from the prohibition on using a prohibited weapon would not confer positive authority to commit a battery. The Court found that the officers lacked specific positive authority to deploy CS gas in the circumstances, and therefore, its use constituted an unlawful battery. The Court concluded that the Court of Appeal had erred in finding the deployment of CS gas lawful.

Consequently, the High Court allowed the appeals with costs, setting aside the orders of the Court of Appeal and the Supreme Court. The matter was remitted to the Supreme Court of the Northern Territory for an assessment of damages for the battery.

Orders

Orders of the court

In each matter:

1. Appeal allowed with costs.

2. Set aside paragraph 1 of the orders made by the Court of Appeal of the Northern Territory on 18 February 2019 and paragraph 1 of the orders made by the Court of Appeal on 10 April 2019 and, in their place, order that:

(a) the appeal be allowed with costs;

(b) set aside paragraph 1(a) of the orders made by the Supreme Court of the Northern Territory on 21 March 2017 and in its place order that there be judgment for the plaintiff on the claim for damages for battery arising out of the use of CS gas at Don Dale Youth Detention Centre on 21 August 2014;

(c) set aside paragraph 1 of the orders made by the Supreme Court of the Northern Territory on 3 December 2018 and in its place order that the defendant pay the plaintiff's costs of and incidental to the proceedings to be taxed on the standard basis. (These costs are to include the costs of all interlocutory proceedings other than those which have been the subject of separate costs awards); and

(d) the matter be remitted to another judge of the Supreme Court of the Northern Territory for assessment of damages.

Background

Background to the litigation

These reasons summarise the facts relevant to these appeals and the procedural history, set out the applicable provisions of the three Acts in issue, and then explain why use of the CS fogger in the Detention Centre was unlawful.Facts In August 2014, the appellants were detained at the Detention Centre in Darwin, an establishment approved as a youth detention centre under the Youth Justice Act[55]. [55]Youth Justice Act, s 148. On the evening of 21 August 2014, the appellants, together with two other detainees, were detained in the Behavioural Management Unit ("the BMU") of the Detention Centre. The BMU consisted of five cells adjoining an enclosed exercise yard. The first cell was vacant. The appellants Keiran Webster and Leroy O'Shea occupied the second cell. The appellants Josiah Binsaris and Ethan Austral occupied the fourth cell. Jake Roper occupied the third cell. Another detainee occupied the fifth cell. The last two detainees are not involved in these proceedings. Jake Roper, the detainee in the fifth cell, Josiah Binsaris and Ethan Austral used toilet paper to cover the cameras in their cells, kicked their cell doors, yelled various statements, broke the lights in their cells and removed the metal brackets attached to the lights. Jake Roper smashed a hole in the metal mesh of his cell door, put his hand through the hole and opened the door, which was not locked but could only be opened from outside the cell, and went into the exercise yard. There, Jake Roper, among other things, damaged property, broke windows and caused a disturbance. Josiah Binsaris and Ethan Austral smashed a hole about the size of a soccer ball in the metal mesh on their cell door. They used a metal bracket taken from the light in their cell to chip pieces of concrete render from the walls to throw at staff entering the BMU. They remained in their cell. Keiran Webster and Leroy O'Shea played cards in their cell. Just after 5.00 pm, a youth justice officer telephoned the Deputy Superintendent and Assistant General Manager of the Detention Centre, James Sizeland, and told him that detainees in the BMU were being disorderly and throwing pieces of concrete at staff. Mr Sizeland instructed the youth justice officer to monitor the situation and give the detainees time to calm down. At 7.45 pm, Russell Caldwell, the Superintendent of the Detention Centre, telephoned Mr Sizeland and told him that the detainees in the BMU had not settled and were becoming increasingly aggressive and violent towards youth justice officers. At about 8.00 pm, Mr Sizeland, and two youth justice officers who had a good relationship with the detainees in the BMU, arrived at the Detention Centre. Mr Sizeland formed the opinion that his presence was aggravating Jake Roper and he withdrew. Mr Caldwell telephoned the Director of Correctional Services, Ken Middlebrook, and told him about the situation. Mr Middlebrook called Grant Ballantine, the Acting General Manager of Berrimah Correctional Centre, an adult prison, and asked him to mobilise members of the Immediate Action Team ("the IAT"), a dog handler and a general-purpose dog, and to send them to the Detention Centre. Mr Middlebrook drove to the Detention Centre.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ KEANE J GAGELER J GORDON AND EDELMAN JJ
The prison officers attending the Detention Centre have not been charged with violating s 6 of the Weapons Control Act and their potential criminal liability under that provision is not in issue. The issue here is whether the prison officers committed a battery, which directs attention to whether they acted with positive authority and the possible sources of that authority. Even if the prison officers attending the Detention Centre were within the exemption in s 12(2) of the Weapons Control Act (and they were not), any exemption from the prohibition in s 6 would not grant them positive authority to engage in what was a battery. It remains the case that, without any positive authority, such as that conferred in the context of prisons or police prisons by s 62(2) of the Prisons (Correctional Services) Act, the use of CS gas on the appellants was a battery and therefore unlawful.Conclusion For those reasons, the Court of Appeal erred in holding that the deployment of CS gas by a prison officer at the Detention Centre on 21 August 2014 was not an unlawful battery of the appellants.Enforced dosing In light of the views reached above, it is unnecessary to address the question of whether the use of CS gas in the Detention Centre constituted "enforced dosing with a medicine, drug or other substance" contrary to s 153(3)(b) of the Youth Justice Act.Orders For those reasons, each appeal should be allowed with costs. In each appeal, paragraph 1 of the orders made by the Court of Appeal on 18 February 2019 and paragraph 1 of the orders made by the Court of Appeal on 10 April 2019 should be set aside and in their place, order that:(a) the appeal be allowed with costs;(b)set aside paragraph 1(a) of the orders made by the Supreme Court of the Northern Territory on 21 March 2017 and in its place order that there be judgment for the plaintiff on the claim for damages for battery arising out of the use of CS gas at Don Dale Youth Detention Centre on 21 August 2014;(c)set aside paragraph 1 of the orders made by the Supreme Court of the Northern Territory on 3 December 2018 and in its place order that the defendant (the Northern Territory of Australia) pay the plaintiff's costs of and incidental to the proceedings to be taxed on the standard basis. (These costs are to include the costs of all interlocutory proceedings other than those which have been the subject of separate costs awards); and(d)the matter be remitted to another judge of the Supreme Court of the Northern Territory for assessment of damages.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE J, GAGELER J, GORDON AND EDELMAN JJ

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