JB & Ors v Northern Territory of Australia
[2019] NTCA 1
•18 February 2019
CITATION:JB & Ors v Northern Territory of Australia [2019] NTCA 1
PARTIES:JB
v
NORTHERN TERRITORY OF AUSTRALIA
AND:KW
v
NORTHERN TERRITORY OF AUSTRALIA
AND:LO
v
NORTHERN TERRITORY OF AUSTRALIA
AND:EA
v
NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NOS:AP No. 3 of 2017 (21513348); AP No. 4 of 2017 (21510204); AP No. 5 of 2017 (21508784); and AP No. 6 of 2017 (21508785)
DELIVERED: 18 February 2019
HEARING DATE: 24 August 2017
JUDGMENT OF: Southwood J and Riley and Graham AJ
CATCHWORDS:
APPEAL – Application to adduce further evidence – Evidence presented to Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory of Australia – Principles applicable – Factors relevant to the exercise of the discretion – Supreme Court Act 1996 (NT) – s 54 – Application dismissed
YOUTH JUSTICE ACT 2005 (NT) – Validity of appointment of superintendent of youth detention centre – Appointment valid
YOUTH JUSTICE ACT 2005 (NT) – Powers of the superintendent to deploy CS gas – Prison officers called upon to assist in emergency situation – Authority of prison officer to deploy CS gas – whether prison officer committed an offence contrary to s 6(e) of the Weapons Control Act for possession and use of a prohibited weapon – Prison officer exempted under s 12(2) of the Weapons Control Act – Prison officer acting in the course of his duty – Prison officer had authority under s 157(2) to deploy CS gas in an emergency situation
PRISONS (CORRECTIONAL SERVICES) ACT 1996 (NT) – Scope of prison officers use of prohibited weapons – Whether use of prohibited weapons confined by s 62(2) Prisons (Correctional Services) Act 1996 (NT) – Use of prohibited weapons not confined
YOUTH JUSTICE ACT 2005 (NT) – Whether general power granted to superintendent of youth detention centre under s 151(3)(c) and s 152(1) to do what is necessary and convenient to maintain order and ensure safe custody and protection of all persons confined by the disciplinary provisions in s 153 (3)(b) – application of the principle of generalia specialibus non derogant rejected – clear distinction between meaning of order and the meaning of discipline – superintendents power under s 152(1) not confined by s 153(3)(b)
YOUTH JUSTICE ACT 2005 (NT) – Whether deployment of CS gas enforced dosing – deployment of CS gas as a restraint in emergency situation not enforced dosing
YOUTH JUSTICE ACT 2005 (NT) – Youths transferred to adult prison – Youths handcuffed behind their backs when placed in prison van – Whether superintendent authorised handcuffing under s 155 – handcuffing authorised
PRACTICE AND PROCEDURE – Re-characterisation of pleaded assault and battery - Appellant bound by conduct at the trial
STATUTORY INTERPRETATION – Appeal – Youth Justice Act assented to before 1 July 2006 - Heading does not form part of Act – Interpretation Act 1996 (NT) – s 55(2)
TORTS – Appeal – Battery – Deployment of CS gas – Reasonable and necessary to discharge CS gas – Emergency situation – Appeals dismissed
TORTS – Appeal – Assault – Battery – Youths handcuffed in van while being transferred to adult prison – Use of handcuffs authorised by superintendent – Appeals dismissed
TORTS – Appeal – Assault – Battery – Youth ground stabilised for 15 minutes or thereabouts and restraints applied – Conduct of youth justice officers reasonable and necessary – Self-defence – Use of restraints to maintain order in an emergency situation – Appeal dismissed
Interpretation Act 1996 (NT) s 41(2), s 55(2)
Prisons (Correctional Services) Act 1996 (NT) s 9, s 62(2)
Public Sector Employment and Management Act 1996 (NT) s 4
Supreme Court Act 1996 (NT) s 54
Supreme Court Rules r 13.12(1)
Weapons Control Act 2001 (NT) s 6, s 12(2)
Youth Justice Act 2005 (NT) s 151(1), s 151(2), s 151(3)(c), s 152(1), s 152(3), s 153, s 153(2), s 153(3)(b), s 153(4), s 153(5), s 155, s 157(2)
Bloemen v The Commonwealth (1975) 49 ALJR 219; Commonwealth Bank of Australia v Quade [1991] HCA 61; (1993) 178 CLR 134; Coulton v Holcombe (1986) 162 CLR 1; Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Orr v Holmes [1948] HCA 16; 76 CLR 632; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418; Water Board v Moustakas (1988) 180 CLR 491; University of Wollongong v Metwally [No.2] (1985) 52 ALJR 481, applied
Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681; Balog v Independent Commission Against Corruption (1990) 169 CLR 625; Binse v Williams and Anor [1998] 1 V.R. 38, 91 A Crim R 340; Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) [2004] FCA 58; (2002) 116 FCR 390; Cobiac v Liddy (1969) 119 CLR 257; Fonteio v Morando Bros Pty Ltd [1971] VR 658; Gollin v Karenlee Nominees Pty Ltd [1983] HCA 38; 153 CLR 455; In re Birdsong 39 F. 599 (1889); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; Sarris v Penfolds Wines Pty Ltd [1962] NSWR 801, referred to
B (a solicitor) v Victorian Lawyers RPA Ltd [2002] VSCA 204; 6 VR 642, distinguished
Edwards v Tasker (2014) 34 NTLR 115, considered
Standard Minimum Rules for the Treatment of Prisoners, adopted by the First Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 20176 (LXII) of 13 May 1977.
REPRESENTATION:
Counsel:
Appellants:B Walker SC with K Foley
Respondent:D McLure SC with T Moses
Solicitors:
Appellants:North Australian Aboriginal Justice Agency
Respondent:Solicitor for the Northern Territory
Judgment category classification: B
Number of pages: 117
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINJB & Ors v Northern Territory of Australia [2019] NTCA 1
AP No. 3 of 2017 (21513348); AP No. 4 of 2017 (21510204); AP No. 5 of 2017 (21508784) and AP No. 6 of 2017 (21508785)
BETWEEN:
JB
Appellant
v
NORTHERN TERRITORY OF AUSTRALIA
Respondent
AND:
KW
Appellant
v
NORTHERN TERRITORY OF AUSTRALIA
Respondent
AND:
LO
Appellant
v
NORTHERN TERRITORY OF AUSTRALIA
Respondent
AND:
EA
Appellant
v
NORTHERN TERRITORY OF AUSTRALIA
Respondent
CORAM: SOUTHWOOD J, RILEY AND GRAHAM AJ
REASONS FOR JUDGMENT
(Delivered 18 February 2019)
Southwood J and Graham AJ
Introduction
In 2014 each of the appellants were youths serving a sentence of detention at the Don Dale Youth Detention Centre (“the detention centre”). All of them were tall, well-built youths who were between 15 and 17 years of age. The appellants all had lengthy criminal records including convictions for escaping from lawful custody, and Jake Roper had committed serious crimes of violence.
Each of the appellants commenced a proceeding in the Supreme Court against the respondent claiming damages for assaults and batteries said to have been committed by prison officers and youth justice officers during an incident at the detention centre on 21 August 2014 and during following incidents which occurred after the appellants were transferred to Berrimah Correctional Centre and later to Holtze Correctional Centre. Only some of their claims were successful.
The trial Judge awarded judgment for the respondent against the appellants on the following claims by:
(a) all four appellants for battery arising out of the use of CS gas[1] at the detention centre on 21 August 2014;
(b) all four appellants for assault (as distinct from battery) as a result of the deployment of a dog and the Immediate Action Team at the detention centre on 21 August 2014;
(c) all four appellants for assault and battery for being handcuffed behind their backs while being transported from the detention centre to Berrimah Correctional Centre on 21 August 2014;
(d) all four appellants for assault (as distinct from battery) for being placed in shackles, spit hoods and handcuffs at Berrimah Correctional Centre on 22 August 2014;
(e) LO for assault and battery at Berrimah Correctional Centre on 23 August 2014;
(f) all four appellants for assault (as distinct from battery) for being placed in shackles, spit hoods and handcuffs to travel to Holtze Correctional Centre on 25 August;
(g) EA for assault and battery arising out of an incident on 5 April 2015; and
(h) EA for assault and battery arising out of an incident on 6 April 2015.
All of the appellants have appealed against the dismissal of claims (a) and (c) above, and EA has also appealed against the dismissal of his claim (g) above for assault and battery arising out of an incident on 5 April 2015 when he was ground stabilised and handcuffed.
Claim (a) at [3] above was a claim for damages for battery as a result of the four appellants being exposed to CS gas which was intentionally and deliberately discharged by a prison officer on 21 August 2014. The respondent admitted that the appellants were exposed to CS gas but contended that the prison officer who discharged the gas was authorised to discharge the gas and it was reasonable and necessary for him to do so. In reply, the appellants contended that the prison officer was acting unlawfully because the canister used to discharge the CS gas was a prohibited weapon and the prison officer who discharged the gas committed an offence contrary to s 6 of the Weapons Control Act[2] as the use of the gas did not fall within the exemption granted by s 12(2) of the Act. In rejoinder the respondent contended that the use of the gas fell within the exemption granted by s 12(2) of the Weapons Control Act as by virtue of s 151(3)(c), s 152(1) and s 157(2) of the Youth Justice Act[3] the prison officer was acting in the course of his duty. Her Honour the trial Judge found that:
[…] the [respondent’s] contentions must be accepted.
In this case, the prison officer who deployed the CS gas was acting in the course of his duties having been called upon to assist in an emergency situation at [the detention centre] under s 157(2) of the Youth Justice Act and directed by the Commissioner to deploy the gas. Therefore the exemption under s 12(2) was engaged and he was not prohibited from using the CS gas by s 6 of the Weapons Control Act. Further, he had delegated to him all the powers necessary or convenient to ensuring the safe custody of detainees and the safety and protection of the detainees and others in the detention centre and there is no need to look to s 62(2) of the Prisons (Correctional Services) Act (which authorises the use of weapons within prisons and police prisons) or any further source of power.[4]
Claim (c) at [3] above was a claim made by all of the appellants for damages for assault and battery as a result of the appellants being handcuffed while being transported in a van from the detention centre to the Berrimah Correctional Centre, which was the adult prison, on 21 August 2014. The respondent admitted that the appellants were handcuffed while being transported but contended that: (i) the use of the handcuffs was reasonable and necessary and authorised by s 155 of the Youth Justice Act, or alternatively, pursuant to s 151(3)(c) and s 152(1) and (3) of that Act, to ensure the safe custody of detainees and protection of all persons within the youth detention centre, and all persons involved in transporting the appellants to the Berrimah Correctional Centre; and (ii) pursuant to s 9 of the Prisons (Correctional Services) Act,[5] to prevent the appellants from escaping. In reply the appellants contended that the use of handcuffs on the appellants was not authorised at all. Section 155 of the Youth Justice Act could not be relied upon because the superintendent, Mr Russell Caldwell, did not give evidence and there was no evidence that he approved the use of handcuffs. Her Honour the trial Judge rejected that submission.
Claim (g) at [3] above was a claim that was made solely by EA about an incident that occurred at the detention centre on 5 April 2015 during which he was ground stabilised by youth justice officers and zip ties and spit hood were applied to him. Her Honour the trial Judge found that; (i) the force used on EA was reasonable and necessary as a matter of self-defence to prevent EA from further assaulting Senior Youth Justice Officer Walton or any of the other officers present; and (ii) the force used was authorised by s 151(3)(c) and s 152(1) of the Youth Justice Act.
The grounds of appeal for all of the appellants for claims (a) and (c) are:
1. Subject to a successful application to adduce further evidence, the trial Judge erred in finding that the prison officer who deployed the CS gas at the detention centre on 21 August 2014 had authority by reason of s 157(2) of the Youth Justice Act, in circumstances where at the time there was no validly appointed superintendent of the detention centre under the Youth Justice Act.
2. The trial Judge erred in finding that the exemption provided by s 12(2) of the Weapons Control Act applied to the deployment of CS gas by a prison officer at the detention centre on 21 August 2014.
3. The trial Judge erred in finding that Mr Caldwell had called upon prison officers to assist in an emergency at the detention centre on 21 August 2014 for the purpose of s 157(2) of the Youth Justice Act in that the finding was against the weight of the evidence.
4. The trial Judge erred in holding that the power of the superintendent under s 152(1) of the Youth Justice Act was not limited by s 153(3) of the Youth Justice Act.
5. Subject to a successful application to adduce further evidence, the trial Judge erred in finding there was statutory authority for the application of the handcuffs to the appellants when they were transferred from the detention centre to Berrimah Correctional Centre on 21 August 2014, in circumstances where there was no validly appointed superintendent of the detention centre under the Youth Justice Act at the time.
As to the claim (g), EA pleads the following ground of appeal.
The trial Judge erred in finding that the use of force applied to EA during an incident on 5 April 2015 was reasonable and necessary.[6]
The factual background
The facts are as follows.
On 21 August 2014 the appellants were housed in the Behavioural Management Unit (“BMU”) at the detention centre. They were housed there because they could not be held securely elsewhere in the detention centre. They all escaped from the detention centre on 2 August 2014 and were variously recaptured on 4 and 6 August 2014.
The BMU consisted of five cells and an exercise yard which was immediately in front of and adjacent to the five cells. The BMU was occupied by the four appellants and two other youths. The first cell in the BMU was vacant. KW and LO were in the second cell. Detainee Jake Roper was in the third cell. EA and JB were in the fourth cell and an unnamed detainee was in the fifth cell.
On the evening of 21 August 2014, Jake Roper, the unnamed detainee, EA and JB used toilet paper to cover the cameras in their cells, kicked their cell doors, and yelled out statements like: “Fuck ‘em. Let’s just run amok.” and “Fuck you. You are fucking us around”. They broke the lights in their cells and removed the metal brackets for use as improvised weapons.
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. Once out of the cell, Jake Roper yelled out, ran around the exercise yard and used the metal bracket from the light in his cell to smash things. He smashed the window between the BMU and the admissions area, climbed through it and smashed a computer. Then he took a fire extinguisher and walkie talkie from the admissions area back into the BMU. He broke a window in the door leading from the exercise yard to the basketball court area and the window between the BMU and the storeroom. He broke all available windows. He used the fire extinguisher to try and break the locks on the doors.
EA and JB smashed a hole about the size of a soccer ball in the metal mesh on their cell door. They also 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. LO and KW did not engage in any such acts. They were playing cards while the other detainees engaged in disorderly criminal conduct.
Just after 5.00 pm on 21 August 2014, Shift Supervisor Hansen, who was a youth justice officer, telephoned the Deputy Superintendent/Assistant General Manager, Mr James Sizeland, who had finished his shift and returned home, and told him that the detainees in the BMU were being disorderly and throwing pieces of concrete at staff. Mr Sizeland instructed him to monitor the situation and give the detainees time to calm down.
At 7.45 pm Superintendent Caldwell telephoned Mr Sizeland and told him the detainees in the BMU had not settled and were becoming increasingly aggressive and violent towards youth justice officers. Mr Sizeland decided to go to the detention centre. He contacted two youth justice officers who had a good relationship with the youths in the BMU and collected them on his way to the detention centre. They arrived at about 8.00 pm. Mr Sizeland tried to see what was happening. Jake Roper was throwing and poking things through the broken windows and it was too dangerous for Mr Sizeland to raise his head to the openings to get a better view of what was happening. He could see there was a lot of glass on the floor near the BMU entry door. He was concerned that the glass was a hazard to staff and detainees and might be used as a weapon or cause accidental injury. He formed the opinion that his presence was aggravating Jake Roper and he withdrew.
Mr Caldwell telephoned the Director of Corrections, Mr Ken Middlebrook, and told him about the situation in the BMU. Mr Middlebrook was at a Rotary meeting. After Mr Caldwell spoke to him, Mr Middlebrook called Mr Grant Ballantine, the Acting General Manager of Berrimah Correctional Centre, which was then an adult prison, and asked him to mobilise some members of the Immediate Action Team, a dog handler and a general purpose dog and request them to go to the detention centre. Mr Middlebrook then drove to the detention centre.
Three Immediate Action Team members, Mr Phillip Flavell, Mr David Lovegrove and Mr Wayne Phillips, arrived at the detention centre at 8.30 pm. They were equipped with masks, helmets, protective vests, shields, batons and aerosol canisters of CS gas. Mr Sizeland asked them to remove the glass that had come through the corridor. When they attempted to do so projectiles were thrown at them and Jake Roper directed the fire extinguisher nozzle through a broken window and discharged dry powder at them. This impeded their vision and caused one officer some difficulty in breathing.
When Mr Middlebrook arrived at the detention centre, he could hear youths in the maximum security section, which is a separate section to the BMU, kicking and banging on their doors and yelling out. It was obvious to him that the incident in the BMU was inciting a number of those youths. His biggest concern was that a number of them might breach their doors and get out. The detention centre was built to domestic standards, not prison standards. Before this incident, some of the youths involved in the incident had pulled the central air-conditioning cassettes from the ceiling, got into the ceiling and done a lot of damage. As well as the possibility of a mass escape, should the maximum security detainees manage to get out of their rooms, the possibility of a fire was a major concern. If substantial damage was done to the detention centre and it was rendered inoperable there was nowhere else to relocate the detainees in the centre within a short period of time. Due to these concerns, Mr Middlebrook formed the opinion that it was necessary to bring the situation to a close quickly.
Mr Caldwell escorted Mr Middlebrook to the dining area at the end of a corridor which led to the BMU. Mr Caldwell and Mr Sizeland briefed him about what was occurring. They told him Jake Roper was out of his cell. He had smashed windows in the admissions area and in the storeroom and was throwing glass and other objects at the youth justice officers when they tried to talk to him. He had also discharged dry powder from the fire extinguisher in their direction.
Mr Sizeland told Mr Middlebrook that some of the detainees in the BMU had damaged light fittings and light switches in their cells. This was concerning because if the youths in the BMU damaged the electrical system, they could end up in the dark and youth justice officers and prison officers may be required to deal with the situation using torches.
Mr Middlebrook was told that youth justice officers had tried to talk to Jake Roper and calm him down but each time they attempted to speak to him, he threw objects at them. One youth justice officer had received a cut to his shoulder.
Mr Middlebrook saw some of the youth justice officers attempting to talk to Jake Roper and Jake Roper swinging a metal object and throwing things at them. He also saw the youth justice officers try to open a door to the BMU, and recover the debris in the passageway that had been thrown at them, but on each occasion Jake Roper threw more debris at them.
Mr Middlebrook suggested deploying the general purpose dog through the basketball court door to the BMU to distract Jake Roper so that the Immediate Action Team could safely go in and restrain him. The plan did not work. The prison officers could not open the door because Jake Roper had damaged the lock by hitting it with a fire extinguisher.
After that Mr Sizeland suggested using CS gas. Mr Middlebrook asked the members in the Immediate Action Team if they had CS gas and, if so, what form of container it was in. They told him they had aerosol cans of gas. This meant they could control how much gas was released. Mr Middlebrook then authorised the deployment of the CS gas. He did so on Mr Sizeland’s recommendation in the presence of Mr Caldwell.
Mr Middlebrook decided to deploy the CS gas as it was obvious to him that talking to Jake Roper was not working. The youth was not listening, and each time youth justice officers attempted to intervene he threw another missile at them. There was an emergency situation which needed to be brought under control quickly. Both Mr Middlebrook and Mr Sizeland were of the opinion that the least use of force that could be applied to deal with the emergency situation and to prevent injury and harm to the detainees and to staff was to deploy CS gas.
Jake Roper remained out of his cell and out of control. He was smashing up anything he could with the use of improvised dangerous weapons. EA and JB had also smashed up their cells with the light fittings. They were similarly armed and were throwing pieces of concrete render through a hole they made in their cell door. Detainees in the maximum security section were yelling out, and banging and kicking their doors. There was a risk of detainees getting out of their rooms, a risk of the facility being damaged or destroyed, and a risk of detainees escaping. Her Honour the trial Judge found there was an emergency situation which needed to be brought under control quickly.
Before the CS gas was deployed, Prison Officer Lovegrove read out the following proclamation: “On the orders of the Officer in Charge of the Prison and the powers invested in me, you are ordered to stop your actions and do as I instruct you immediately. If you fail to do so chemical agents and physical control will be used to restore the security and good order of the Prison.”
Her Honour the trial Judge found Jake Roper did not comply with Mr Lovegrove’s order. He yelled, “Come and get me dog cunts.” After the proclamation was read and Jake Roper did not comply, Mr Flavell deployed the CS gas into the BMU. He directed three short bursts (less than one second each) into the BMU through the broken window, in the hope that Jake Roper would become compliant after exposure to that amount of CS gas. That did not occur. Ultimately, he directed about six short bursts of CS gas into the exercise yard before Jake Roper became compliant. After the last burst of CS gas Jake Roper came within sight of the officers who were behind the door and lay on the ground. Had Jake Roper complied with the proclamation the CS gas would not have been deployed.
Her Honour the trial Judge found that the CS gas was not used on the detainees who remained in their cells. It was deployed for the purpose of temporarily incapacitating Jake Roper so he could be taken back into safe custody. The officers concerned all gave evidence that they believed the temporary discomfort to the other detainees in the BMU was necessary to accomplish this in a way that avoided the risk of serious, perhaps long lasting or permanent injury to Jake Roper and/or the prison officers.
Order was restored immediately after the CS gas was deployed. The appellants, Jake Roper, and the unnamed detainee, were handcuffed behind their backs, taken onto the basketball court, made to lie on their stomachs and washed down with a hose to decontaminate them from any chemical residue left by the gas. They were then taken in a van, still handcuffed behind their backs, to the Berrimah Correctional Centre.
The facts of the 5 April 2015 incident are set out in paragraphs [193] to [201] below.
Grounds of appeal 1 and 5 and the appellants’ application for leave to adduce further evidence
Ground of appeal 1 and the first limb of ground 5 were contingent on the appellants succeeding in an application to adduce further evidence in this appeal. The grounds relate to the dismissal of the appellants’ claims for damages for battery arising out of the use of the CS gas against them on 21 August 2014, and subsequently their being handcuffed behind their backs while being transported to the Berrimah Correctional Centre in a van. The claim for battery arising out of the use of the CS gas was dismissed in the court below because her Honour the trial Judge found the prison officers who deployed the CS gas had lawful authority to do so. They had been called upon by the superintendent, Mr Caldwell, to assist in an emergency situation in accordance with s 157(2) of the Youth Justice Act and this meant they had been delegated the powers of the superintendent necessary to maintain order and ensure the safe custody of the detainees and protection of all persons who are within the precincts of the detention centre.
The claim for battery for applying the handcuffs to the appellants while they were being transported to the Berrimah Correctional Centre in a van was also dismissed because her Honour the trial Judge found the prison officers who applied the handcuffs had lawful authority to do so. The application of the handcuffs had been approved by the superintendent under s 155 of the Youth Justice Act. Her Honour the trial Judge found that it could be readily inferred from Mr Caldwell’s presence on the basketball court when the detainees were handcuffed, hosed down, and placed in the van to be taken to the Berrimah Correctional Centre that he approved what occurred.
The further evidence the appellants sought to adduce was comprised of certain evidence Mr Caldwell and Ms Salli Cohen gave to the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (“the Royal Commission”). It was submitted on behalf of the appellants that Mr Caldwell’s and Ms Cohen’s evidence before the Royal Commission cast doubt on whether Mr Caldwell had been appointed superintendent of the detention centre as at 21 August 2014. If Mr Caldwell had not been appointed superintendent he could not have authorised the prison officers and youth justice officers to deploy the CS gas and handcuff the appellants on 21 August 2014 and the respondent’s defence to those particular claims for damages could not succeed.
If the appellants were granted leave to adduce the further evidence, they would be given leave to raise a matter on appeal which was not argued in the court below. At the trial the appellants submitted that the prison officers did not have authority to deploy the CS gas because: (i) the superintendent did not have authority to deploy the CS gas; (ii) the prison officers only had authority to deploy the CS gas within a prison (not within a detention centre); and (iii) it was an offence under s 6 of the Weapons Control Act for the prison officers to deploy the CS gas in the detention centre. The appellants submitted that the prison officers and youth justice officers did not have authority to apply the handcuffs to them while they were being transported to the Berrimah Correctional Centre in a van as there was no evidence that the superintendent had approved the application of the handcuffs for that purpose. During the trial the appellants did not submit that Mr Caldwell lacked all relevant authority as he had not been appointed superintendent.
At the start of the hearing of the appeal, the appellants moved to be granted leave to adduce the further evidence. The motion was dismissed on 24 August 2017. Following are our reasons for dismissing the motion.
In support of the motion the appellants relied on an affidavit made on 15 July 2017 by Ms Melissa Chung, and an instrument made on 15 September 2014 by the Commissioner (Director) of Correctional Services, Mr Middlebrook, appointing Mr Russell Caldwell as superintendent of the Alice Springs Youth Detention Centre, Aranda House, and the Holtze Youth Detention Centre in Darwin.
In her affidavit, Ms Chung stated the grounds of the motion and annexed the further evidence. This was comprised of (i) a statement Mr Caldwell made on 13 March 2017; (ii) pages P-2105, P-2106 and P-2145 of the transcript of his oral evidence before the Royal Commission on 29 March 2017 (which was seven days after her Honour the trial Judge delivered judgment); and (iii) page P-2356 of the transcript of Ms Cohen’s oral evidence before the Royal Commission on 30 March 2017. Ms Chung stated that the appellants only sought to rely on paragraphs [73] to [77] and [256] to [268] of Mr Caldwell’s statement.
The instrument of appointment of 15 September 2014 was as follows:
NORTHERN TERRITORY OF AUSTRALIA Youth Justice Act
APPOINTMENT OF SUPERINTENDENT OF DETENTION CENTRES
I, Kenneth Michael Middlebrook, Commissioner of Correctional Services, under s 151(1) of the Youth Justice Act, appoint Russell Stanton Caldwell to be superintendent for each detention centre specified in the schedule.
Dated 15/9/14
Commissioner
SCHEDULE
Alice Springs Youth Detention Centre
Aranda House
Holtze Youth Detention Centre
Shortly stated, Ms Chung deposed that the evidence of Mr Caldwell was that the powers of the superintendent were not “officially” or “formally” delegated to him until 15 September 2014. Ms Cohen’s evidence was that it only came to her attention “much later on”, after Mr Caldwell took up the role of superintendent, that the appropriate instrument had not been signed. In their written Summary of the Appellants’ Submissions on Appeal, counsel for the appellants stated: “The [further] evidence will include the undisputed fact that the person who was understood to be the superintendent of Don Dale on 21 August 2014 [Mr Caldwell] was not appointed by instrument at that time.”
The principles about receipt of further evidence
Under s 54 of the Supreme Court Act, the Court of Appeal has power, in its discretion, to receive further evidence, which may be taken on affidavit, by oral examination before the Court of Appeal or a Judge, or otherwise as the Court of Appeal directs.
For the further evidence to be received it was necessary for the appellants to establish that:
(a)by the exercise of reasonable diligence they could not have discovered the further evidence in time for it to be used in the trial below;
(b)the evidence proposed to be tendered is reasonably credible; and
(c)it is reasonably clear that the further evidence would have produced a different result if it had been available at the trial.[7]
The purpose of the above principles is to reconcile the demands of justice with the policy that there be an end to litigation so that the verdicts of the Courts are not of a provisional character. In Commonwealth Bank of Australia v Quade[8] the High Court stated:
In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of ‘the demands of justice’ and the ‘policy’ that there be an end to litigation at least prima facie (or ‘generally’) dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence [emphasis added].[9]
The appellants’ submissions
The appellants made the submissions which are set out in paragraphs [47] to [62] below in support of their application to adduce the further evidence.
An important issue at trial was whether the respondent had made out the various statutory authorisations which were pleaded in answer to the intentional torts alleged to have been committed by the prison officers and youth justice officers. That is, there was an important question, which was resolved against the appellants, as to whether the conduct of the various prison and youth justice officers on 21 August 2014 was lawfully authorised under the Youth Justice Act. The authorisations pleaded by the respondent relied on Mr Caldwell’s conduct as superintendent. While his conduct was in issue at trial, no issue was taken by the appellants about the validity of his appointment as superintendent under s 151(1) of the Youth Justice Act.
The further evidence not only called into question the validity of Mr Caldwell’s appointment as superintendent but raised a question as to whether he had actually been appointed superintendent before 15 September 2014. If Mr Caldwell was not appointed superintendent, or was invalidly appointed, he had no authority to request assistance from the prison officers at the Berrimah Correctional Centre, or authorise the deployment of the CS gas and the use of handcuffs. In turn, this would mean that on 21 August 2014, the prison officers had no lawful authority to deploy CS gas against Jake Roper, or handcuff the appellants behind their backs while being transported to the Berrimah Correctional Centre, and the conduct would be unlawful.
Before judgement was delivered in the court below, the appellants were unaware of the further evidence. If they had been aware of the further evidence at trial, they would have relied on it in support of their contention that the prison officers and youth justice officers did not have statutory authority to deploy the CS gas, and handcuff them when they were taken out of the BMU and moved to Berrimah Correctional Centre.
At the trial the appellants and the respondent conducted their cases on the basis that Mr Caldwell was validly appointed superintendent. Nothing occurred during the proceeding in the Supreme Court to give rise to any question about the validity, or reality, of Mr Caldwell’s appointment. Neither Mr Caldwell, nor Ms Cohen, were called to give evidence at trial; and the respondent did not make discovery to the appellants of the instrument of appointment made on 15 September 2014. The trial Judge delivered her Reasons for Decision on 21 March 2017 and Mr Caldwell and Ms Cohen gave evidence at the Royal Commission after that date on 27 March 2017.
It was only through the evidence of Mr Caldwell and Ms Cohen at the Royal Commission that the solicitors for the appellants became aware that there were circumstances which called into question the validity and reality of Mr Caldwell’s appointment as superintendent.
The appellants should be granted leave to adduce the further evidence if it is evidence that, had it been available at trial, would have both justified the appellants putting the validity and the fact of Mr Caldwell’s appointment in issue, and required consideration of that matter on the face of the evidence. The exercise of the Court’s discretion not to admit the further evidence ought not to be confused with admitting it while regarding it as still possible that the evidence would not change the result.
The appellants made two principal submissions as to why the further evidence was likely to have produced a different result if it had been available at trial. First, under s 151(1) of the Youth Justice Act, the appointment of a superintendent must be by written instrument and the further evidence established that Mr Caldwell was not appointed superintendent by any instrument until 15 September 2014. This meant that he was not validly appointed until then. Second, in the alternative, it was submitted that the further evidence revealed there was no appointment, of any kind, of Mr Caldwell as superintendent before 15 September 2014 because the position of superintendent had been abolished.
Subsection 151(1) of the Youth Justice Act required the Director of Corrections to “appoint” an employee within the meaning of the Public Sector Employment and Management Act to be the superintendent of a detention centre. The word “appoint” is not defined in the Youth Justice Act, and the appellants accepted the Youth Justice Act did not expressly require appointment by instrument. The question was: in this statutory context, what was required to effect an appointment? As the High Court has observed, the answer will vary according to the context.[10] One relevant matter is whether the Act confers on the appointee “statutory powers of considerable significance”.[11] The Youth Justice Act conferred significant powers and functions on the superintendent, which were to be exercised in relation to a vulnerable population – youths in detention. In that statutory context, the appellants submitted the word “appoint” must be understood as requiring appointment by instrument. As the further evidence showed, this is ultimately the form the appointment took when the respondent recognised there was a flaw in Mr Caldwell’s appointment. Alternatively, even if s 151(1) of the Youth Justice Act did not require appointment by instrument, a “degree of formality” was nevertheless required.[12] Before 21 August 2014, no step was taken with the requisite formality to appoint Mr Caldwell superintendent.
The further evidence was to the following effect. Prior to 15 September 2014, the validity of Mr Caldwell’s appointment as superintendent was a live issue within the Department of Correctional Services. This is apparent from the making of the instrument of his appointment on 15 September 2014. Between October 2013 and April 2014, there was a bewildering confusion of titles and re-titles for the various functions and roles that Mr Caldwell was assigned, none of which was statutory.
The statement of Mr Caldwell which was tendered during the Royal Commission provides a thorough exposition of his work assignments over the relevant period. That material revealed there was little actual congruence between the description of his role or duties and what the statute required of a superintendent. The functions of a superintendent are set out in s 151(3) of the Youth Justice Act, and in his statement to the Royal Commission, Mr Caldwell eschews some of the most important ones. He also stated that he did not have any statutory powers when he first acted as the person in charge of the detention centre.
The appellants accepted that none of the material in Mr Caldwell’s statement, or his oral evidence before the Royal Commission, is definitive. However, they relied on the lack of definitiveness in his evidence in support of their application. It was submitted that the less definitive the evidence is, the less likely there had been an earlier oral appointment; particularly if the putative appointee gives evidence that his understanding of his role lacks congruence with what the statute requires of the superintendent’s functions.
There was significant difficulty in identifying both the occasion and the words which constituted the appointment of Mr Caldwell as superintendent. There was no evidence that conveyed the fact that there was any speech uttered which appointed Mr Caldwell superintendent under s 151 of the Youth Justice Act.
In paragraph [63] of Mr Caldwell’s statement to the Royal Commission, he states his understanding of the functions he had as Director Youth Detention. There is nothing in that paragraph that coincides with the statutory responsibility of a superintendent. The evidence of Mr Caldwell before the Royal Commission is to the effect that, without anything happening, he ended up assuming the role of superintendent. That cannot constitute an appointment to the position. Mr Caldwell states that in circumstances where he was left as the most senior person at the detention centre, he was simply expected to assume the responsibility of running both the Alice Springs and Darwin detention centres. Further, Mr Caldwell’s understanding of his position, or that he occupied a particular position, is not evidence of an appointment to that position.
The effect of Mr Caldwell’s statement to the Royal Commission is that the restructure in the Department of Corrections resulted in the position of superintendent of the detention centre being abolished, and the replacement position did not have the statutory responsibilities of the superintendent. Paragraph [76] of Mr Caldwell’s statement makes it very clear that the position of superintendent was abolished. There was a replacement position, Director Youth Detention. The duties of the Director Youth Detention were the strategic duties outlined in paragraph [63] of his statement. Those duties are not the duties of a superintendent. Most of the duties of a superintendent are operational. Mr Sizeland had the operational role. Nothing was said that assigned the superintendent’s functions to Mr Caldwell.
The restructure of the Department of Correctional Services in April 2014 created a non-statutory position which was only understood by Mr Caldwell to subsume the statutory position of superintendent. Mr Caldwell and his superiors had a mistaken belief that such a thing could be done. They did not think that it was necessary to appoint somebody as superintendent because they abolished the position. The deliberate avoidance of using the word ‘superintendent’ in the title of Mr Caldwell’s position as Director Youth Detention is utterly without legal justification or bureaucratic merit. The position of superintendent was abolished, and replaced by another position with duties that did not match the superintendent’s statutory functions.
The outcome of the restructure of the Department of Correctional Services and the manner in which it was done was that Mr Caldwell was left in a position in the Department that he did not think was the position of superintendent because that position had been abolished. Nonetheless, he thought he was in charge of the detention centre. Mr Caldwell could not appoint himself superintendent. There must be an appointor and an appointee, and there must be a date when the appointment commences, otherwise there is not an appointment. The appellants contended that the evidence of Mr Caldwell tends to establish that whatever happened in April 2014 did not involve his appointment to a position with the functions the statute imposes on someone who is appointed superintendent of a youth detention centre.
Consideration of the motion to adduce further evidence
In our opinion, the submissions of the appellants on the motion to tender further evidence were unsustainable.
Prior to considering the appellants’ submissions about the content of the further evidence it was useful to note four preliminary matters. First, the functions of the superintendent set out in s 151(3) of the Youth Justice Act. Those functions are:
(a)must promote programs to assist and organise activities of detainees to enhance their wellbeing;
(b)must encourage the social development and improvement of the welfare of detainees;
(c)must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise;
(d)is responsible for the maintenance and efficient conduct of the detention centre; and
(e)must supervise the health of detainees, including the provision of medical treatment and, where necessary, authorise removal of a detainee to a hospital for medical treatment.
Obviously, these functions are performed by the superintendent with the assistance of other employees. The purpose of the provision is to identify the person with the ultimate responsibility for the performance of these functions.
Second, before Mr Caldwell became the person in charge of the detention centre, the position of the person who was the superintendent was titled General Manager/Superintendent. This suggests that the title of the position of the person in charge of the detention centre was General Manager. The General Manager performed a broad range of managerial functions and was responsible for performing the statutory functions of the superintendent. The only relevant change of title occurred in April 2014 when Mr Caldwell was permanently appointed Director Youth Detention. It was a change in title for the position of the person in charge of youth detention centres. The change in title was from General Manager/Superintendent to Director Youth Detention. Titles such as Executive Director, Director, General Manager and Assistant Manager are consistent with titles and, significantly, levels of employment across the Northern Territory Public Service.
Third, despite the discursive employment history contained in Mr Caldwell’s statement before the Royal Commission, the key positions held by him for the purposes of this appeal, were: (i) Acting General Manager/Superintendent of the detention centre from December 2013 to April 2014; and (ii) Director Youth Detention from April 2014 (when he was permanently appointed to that position) to April 2015 (when he resigned from the Department of Correctional Services). While he was in the position of Acting General Manager/Superintendent, Mr Caldwell held the position of Director Youth Justice which was a policy, strategic, programs and services position. That was his substantive position. The new position of Director Youth Detention involved a merger of the two positions held by Mr Caldwell. That is, of both his substantive position and the acting position. The person in that position was the superintendent of the detention centre.
Fourth, Mr Caldwell’s statement to the Royal Commission is not well drafted. In numerous parts of the statement, his evidence is non-responsive, incomplete, disjointed, vague and lacking in precise detail. These aspects of the statement have resulted in the statement not being truly chronological, and have significantly detracted from the clarity and coherency of the statement. It is also sometimes unclear what period of time Mr Caldwell is referring to in his answers to the questions raised in his statement. When considering what is said in his statement it is necessary to have regard to the manner in which the various questions are answered, and consider each answer in the context of the whole of the statement.
As to the manner of appointment, s 151(1) of the Youth Justice Act does not require the appointment of the superintendent to be in writing or by instrument. Nor does the subsection require the use of any particular words to make an appointment of a superintendent. The text of the subsection says nothing to that effect. All that is specified in the subsection is that the Director of Correctional Services must appoint an employee within the meaning of the Public Sector Employment and Management Act, who presumably may have other functions and duties, to be the superintendent. Likewise, there is nothing specified in the Youth Justice Regulations about the manner of appointment of a superintendent for a detention centre. Unlike other provisions in the Youth Justice Act which require certain determinations to be in writing, there is no specification in the Act or in the Regulations that the appointment of the Superintendent must be in writing. Nor does s 151(1) of the Act or the Regulations impose any conditions on how the appointment of the superintendent is to be effected or who is to be notified of the appointment.
In our opinion, there is nothing in the context in which the word ‘appoint’ is used in s 151(1) of the Youth Justice Act that requires more than a communication of the appointment between the Director and the prospective employee and an acceptance by the employee of the appointment. The appointment is a straightforward administrative appointment made by the head of the Department of Correctional Services, of a government employee to superintend youth detention centres. The functions and powers of the superintendent are clearly set out in the Act. While it may be best practice, the fact that someone within the administration of the Department of Correctional Services, after obtaining advice from the Solicitor for the Northern Territory, thought Mr Caldwell’s appointment should be recorded by instrument, cannot alter the requirements of the Youth Justice Act.
The only case about the meaning of “appoint” relied on by the appellants is the case of B (a solicitor) v Victorian Lawyers RPA Ltd.[13] The case concerned s 313 of the Legal Practice Act 1996 (Vic). That section granted a Recognised Professional Association (“RPA”) responsible for the discipline of legal practitioners in Victoria the power to delegate in writing to various people its powers and functions. That is, the Legal Practice Act 1996 (Vic) permitted the powers of an RPA to be delegated provided the delegation was in writing. There is no such requirement in the Youth Justice Act.
The decision of the Victorian Court of Appeal is distinguishable from these appeals because s 151(1) of the Youth Justice Act does not involve the delegation of powers in such a manner, and there is no requirement for the appointment to be in writing. Further, as was submitted on behalf of the respondent, s 151(1) of the Youth Justice Act is a mandatory provision. There must be a superintendent appointed at all times. This is to ensure that there is always someone in a detention centre that is responsible for carrying out the important functions listed in s 151(3), s 153(1) and s 173 (access to a medical practitioner) of the Youth Justice Act, including ensuring the safe custody and protection of the youths who are in detention. It would be remarkable if a lack of writing or a lack of some other kind of formality meant that there was no one at the detention centre who was responsible to carry out the important duties of a superintendent.
As to the question of whether Mr Caldwell was actually appointed superintendent, we point out Mr Caldwell stated in his statement to the Royal Commission that he was summarily placed in the position of Director Youth Detention by the Commissioner of Correctional Services in April 2014.[14] He found out he was placed in that position about 10 minutes before Mr Middlebrook announced it to staff. From this point onward, he was permanently in charge of Don Dale and Alice Springs Youth Detention Facilities.[15] He was expected to act as Director and Superintendent of Youth Detention from April 2014.[16] The process of merging the two roles (Director and Superintendent) was an organic process of trial and error.[17]
The above conclusion is supported by the further statement of Mr Caldwell that was read by the respondent for the purposes of the application to adduce further evidence. In it, he states:
In March/April 2014 the Commissioner announced a new organisational structure for DCS. The new structure effectively established the role of Director Youth Detention which included the duties of the General Manager/Superintendent. I was appointed to this position which effectively continued the existing state of affairs where I occupied both management and executive roles and functions in relation to youth detention. I accepted that position.
The conclusion is also supported by the unchallenged evidence of Mr Middlebrook at the trial and by the affidavits of Mr Middlebrook and Ms Cohen which were read by the respondent in response to the motion to adduce the further evidence. At the trial Mr Middlebrook was asked the following question and he gave the following answer:
Counsel:Would you just confirm for her Honour that Mr Caldwell was the superintendent of the Don Dale Detention Centre?
Mr Middlebrook: Yes, he was.
In his affidavit Mr Middlebrook stated:
In or about April 2014, the new organisation structure of NTDCS had been finalised and was ready to be presented to the employees of NTDCS. Prior to the presentation, I advised Mr Caldwell in person and in the presence of Ms Cohen that at the presentation I would be announcing his appointment to the position of Director Youth Detention which included the role of Superintendent. The Director Youth Detention position encompassed the same duties and responsibilities that Mr Caldwell had been performing since 11 November 2013. Mr Caldwell accepted the appointment. He remained in the position until 24 April 2015 when he resigned.
Ms Cohen’s affidavit corroborates the statement of Mr Middlebrook. Further, Ms Cohen gave oral evidence at the Royal Commission that when Mr Caldwell took over as the Director Youth Detention he had a dual role. He was Director in terms of being Ms Cohen’s second-in-command, and Superintendent of the detention centres. This statement is confirmed by an organisational chart made in April 2014 which is attached to the affidavit that Ms Cohen made on 11 August 2017. The chart shows that Mr Caldwell was to perform both the duties of Director of Youth Justice and General Manager of Youth Detention which was the title of the person who was the superintendent prior to the departmental restructure. It is irrelevant that Ms Cohen also gave evidence at the Royal Commission that she was told by one of the lawyers at the Solicitor for the Northern Territory that the appropriate instrument of appointment of Mr Caldwell as superintendent had not been signed. It is for the Court to declare the requirements of the appointment of a superintendent under s 151(1) of the Youth Justice Act.
As to the change of title of the person in charge of the Darwin and Alice Springs youth detention centres, there was, as we have said at paragraph [65], only one change of name. It came about as a result of a Departmental restructure.
As to the degree of congruence between Mr Caldwell’s role and duties and the duties of the superintendent under s 151(3) of the Youth Justice Act, it is apparent from a reading of the whole of his statement to the Royal Commission that there was a large degree of concurrence. In paragraph [33] of his statement Mr Caldwell describes the previous Superintendent’s (Mr Rainbird) duties as: operational budgetary issues, physical infrastructure, administration and procurement, personnel management, detainee services, detainee rights and welfare, operational rules, policy and discipline, safety, security and compliance, safety and emergency protocols and planning, food supply and utilities. Those duties are consistent with the duties set out under s 151(3) of the Act. It is apparent from his statement that Mr Caldwell went on to perform many of those duties when he was appointed Director Youth Detention. He discusses the merging of the two roles he was required to perform and the tension that this created. He states that most of his time was spent dealing with mounting operational issues. He issued directives and instructions to the general workforce. It is also apparent that a number of the higher level duties referred to in paragraphs [63] and [64] of Mr Caldwell’s statement are consistent with the duties of the superintendent set out in s 151(3) of the Act. There are the following examples: (i) providing strategic direction for programs and services is consistent with the duty described in s 151(3)(a); (ii) being accountable for efficient and effective management is consistent with the duty described in s 151(3)(d); (iii) driving a culture of improvement amongst staff is consistent with virtually all of the duties in s 151(3); (iv) managing operational working relationships with Indigenous elders, families and volunteer groups is consistent with s 151(3)(b); and (v) case management of the more problematic and difficult detainees is consistent with s 151(3)(c).
As to the submission about the lack of detail of the occasion of Mr Caldwell’s appointment, it is apparent that Mr Caldwell was appointed in April 2014, soon after the restructure of the Department of Correctional Services was completed. In effect, he was told by Mr Middlebrook that the position he was acting in was to become a permanent position. He was to be the Director Youth Detention and he was to perform the functions and duties of Director and Superintendent of Youth Detention.[18] This conclusion is supported by the statement of Mr Middlebrook at paragraph [75] which is corroborated by the affidavit of Ms Cohen.
As to the evidentiary effect of paragraph [63] of Mr Caldwell’s statement, it is important to read that paragraph in the context of the whole statement. When that is done, the first thing that emerges is that Mr Caldwell’s duties when he was Director Youth Detention and when he was acting in the position of General Manager/Superintendent were far wider than stated in paragraph [63]. The second thing that emerges is that it is clear that Mr Caldwell understood that as the Director Youth Detention he was to perform the functions of superintendent. In his oral evidence at the Royal Commission, Mr Caldwell stated that he assumed the new role of Director and Superintendent at a Department restructure in April 2014.
Paragraph [63], and the related paragraph [76] of Mr Caldwell’s statement, are more about Mr Caldwell’s concern about the difficulty in merging his executive role with the operational and management duties of the superintendent of the detention centre. Certain aspects of his executive role involved reviewing the operations of the youth detention centres and providing high level leadership and strategic direction. Mr Caldwell thought there was a potential conflict between those duties and the ordinary operational duties of the person in charge of the detention centres.
As to the issue of whether the position of superintendent was abolished, it is our view that the statement of Mr Caldwell is to the effect that the position of General Manager/Superintendent was replaced by the position of Director Youth Detention. The person in that position was the superintendent of youth detention centres. The position of superintendent was not abolished. It could not be abolished without amending the Youth Justice Act. In his statement, Mr Caldwell states that from April 2014 he was permanently in charge of Don Dale and Alice Springs Youth Detention Facilities.[19] The new structure effectively removed the position of General Manager/Superintendent and in its place established the role of Director Youth Detention.[20] In so doing the position of superintendent was not abolished. Mr Caldwell was expected to act as Director and Superintendent of Youth Detention from April 2014.[21] The process of merging the two roles was an organic process which had its difficulties.[22] There was a tension between the task of advancing strategic reform and dealing with mounting operational issues on a daily basis.[23] Prior to September 2014, Mr Caldwell was under the impression that in April 2014 he had been delegated the powers of the superintendent. This is to be inferred from what he states in paragraph [268] of his statement and the fact that throughout his statement Mr Caldwell gives examples of him carrying out the functions and duties of a superintendent under the Youth Justice Act. This is consistent with Mr Caldwell being appointed superintendent in April 2014. Further, the suggestion that the position of superintendent was abolished is fundamentally inconsistent with Mr Middlebrook’s evidence set out at paragraph [75] and the making of the instrument of appointment dated 15 September 2014. At the time the instrument was made, Mr Caldwell was the Director Youth Detention, and his title and duties including his duties as superintendent remained the same from April 2014 to April 2015.
The appellants’ submissions that the restructure of the Department of Correctional Services created a non-statutory position and that those undertaking the restructure of the Department did not think it was necessary to appoint somebody as superintendent because they abolished the position are simply not borne out by the further evidence.
A fair assessment of the further evidence leads to the following conclusions. Mr Caldwell was an “employee” within the meaning of s 4 of the Public Sector Employment and Management Act. In April 2014 Mr Middlebrook decided to appoint Mr Caldwell as the Director Youth Detention. This position included the role and functions of the superintendent of all youth detention centres in the Northern Territory. Mr Middlebrook told Mr Caldwell that he had appointed him to the position of Director Youth Detention which included the role of superintendent. Mr Caldwell accepted the appointment of Director Youth Detention and Mr Middlebrook formally presented Mr Caldwell’s appointment to Corrections staff in April 2014. Further, from April 2014 until he retired in 2015, Mr Caldwell performed the functions of superintendent. Mr Caldwell did not think that there was any requirement to appoint the superintendent of a detention centre by a written instrument until a lawyer from the Solicitor for the Northern Territory informed him that such an instrument was necessary. Mr Caldwell’s reflections on that advice and the lack of a written instrument do not alter the fact of his appointment.
We do not accept the submissions made on behalf of the appellants that reasonable diligence in the context of the proceedings in the Supreme Court would not have uncovered the further evidence now sought to be tendered on appeal. The appellants’ principal argument about grounds 1 and 5 is that the appointment of a superintendent must be in writing. As no written instrument of appointment made prior to 21 August 2014 was discovered by the respondent to the appellants (because there was no document to discover), the appellants and their legal representatives must have been alerted to the fact that there was no such instrument and to the possibility of raising at the trial the argument they now wish to press on appeal for the first time. Reasonable diligence required them to confirm the position and, if they had done so, they would have been informed of the full circumstances of Mr Caldwell’s appointment as superintendent.
If the further evidence was admitted, it would not have produced a different result to the result at trial for the claims of deploying the CS gas and handcuffing the appellants while they were transported to the Berrimah Correctional Centre on 21 August 2014. The further evidence does not vitiate the appointment of Mr Caldwell. It does not establish that he was not appointed superintendent and it does not establish that the position of superintendent was abolished. Nor does it raise a serious question about these matters. The further evidence failed to meet the requirement that it must be reasonably clear that the further evidence would have produced a different result. Mr Middlebrook validly appointed Mr Caldwell as superintendent of the detention centre in April 2014. He did so orally and the structural change which resulted in that appointment was announced to the Department of Correctional Services staff.
Mr Walker SC strongly argued on behalf of the appellants that the Court should not take into account the further materials relied on by the respondent during the hearing of the motion to adduce the further evidence. This was because the various documents showed inconsistencies which called for an explanation which could only be fairly and properly investigated if the materials were properly tested and that could only occur if leave was granted to the appellants to adduce the further evidence. In fact the other documents are largely consistent with our interpretation and understanding of the proposed further evidence. Consequently, we have had regard to those documents to the extent indicated in our reasons.
Hence, the motion to adduce the further evidence was dismissed. It follows that ground of appeal 1 and the first limb of ground 5 cannot be sustained and are rejected.
Subsection 41(2) of the Interpretation Act
During the hearing of the motion to tender further evidence, the Court raised for consideration by the parties whether s 41(2) of the Interpretation Act (NT) overcame any of the alleged difficulties with the validity or reality of Mr Caldwell’s appointment as superintendent on the basis that, at the very least, Mr Caldwell had been asked to perform, or had assumed the role, and was performing the duties of the superintendent.
Subsection 41(2) of the Interpretation Act states:
Where an Act confers a power or imposes a duty on the holder of an office or the occupier of a position or designation as such, the power may be exercised and the duty shall be performed by the person for the time being holding or occupying or performing the duties of the office, position or designation.
According to the submissions that were made to the Court there is a constructional choice between two possible interpretations of s 41(2) of the Interpretation Act. The first interpretation is:
(1)Subsection 41(2) deals with conferrals of power and impositions of duty on: (i) the holder of an office: (ii) the occupier of a position: and (iii) a ‘designation as such’. The operation of the subsection is predicated on valid appointments of holders and occupiers, and valid ‘designations as such’.
(2)Subsection 41(2) recognises that over the lifetime of any Act of Parliament there may be any number of people appointed to various offices, positions or ‘designations as such’.
(3)Subsection 41(2) provides that the power may be [is to be] exercised [and] the duty shall be performed by the person who is currently (‘for the time being’): (i) holding the office; or (ii) occupying the position; or (iii) performing the duties of the ‘designation as such’. That can only be a person who has been validly appointed or validly designated as such in accordance with the provisions of the relevant Act.
(4)The purpose of s 41(2) is to ensure that successors to an office, or position, or ‘designation as such’ are bound regardless of the manner and style of the appointment of previous holders or occupiers or designates, and that past holders, occupiers and ‘designates as such’ have no role to play.
The second possible interpretation of s 41(2) of the Interpretation Act interprets the words “performing the duties of” as operating upon the office, the position and ‘the designation as such’. This interpretation eschews reading the second half of the subsection severally as (i) the power may be exercised and the duty shall be performed by the person for the time being holding the office; (ii) the power may be exercised and the duty shall be performed by the person for the time being occupying the position; and (iii) the power may be exercised and the duty shall be performed by the person for the time being “performing the duties of” the designation. According to this interpretation the purpose of s 41(2) is to recognise the reality that from time to time, for various reasons including the absence of the holder of the office or occupier of the position, or the length of the process of appointment, it will be necessary for a person to act in the office or position or ‘designation as such’ on a provisional or interim basis until more formal arrangements are made, and to temporarily exercise the conferred powers and perform the imposed duties.
Given our reasons for the ruling on the motion to adduce further evidence it is unnecessary for us to resolve this issue.
Ground 2 and ground 4
Under ground 2 the appellants submit that the use of the CS gas at the detention centre on 21 August 2014 was unlawful because (i) it was an offence contrary to s 6 of the Weapons Control Act; and (ii) the trial Judge erred in finding that the exemption under s 12(2) of the Weapons Control Act applied to the prison officer’s use of the CS gas. Under ground 4 the appellants contend that the trial Judge erred in holding that the power of the superintendent under s 152(1) of the Youth Justice Act (to do what was necessary and convenient for the performance of his functions under the Act) was not limited by s 153(3)(b) of the Act (which excluded enforced dosing with a medicine, drug or other substance for the purpose of maintaining discipline). Ground 4 of the appeal is an integral part of the appellants’ submissions in support of ground 2.
The main thrust of the appellants’ submissions on ground 2 was as follows. It was common ground between all the parties that the canister used to deploy the CS gas on 21 August 2014 was a prohibited weapon and the deployment of the CS gas constituted the use of a prohibited weapon. Section 6 of the Weapons Control Act creates a number of offences about prohibited weapons. Subsection 6(e) of the Weapons Control Act states that “a person must not: […] possess, use or carry; a prohibited weapon except if permitted to do so by an exemption under s 12 or an approval”. The maximum penalty for doing so was 400 penalty units or imprisonment for two years. For the use of the CS gas on 21 August 2014 to be lawful the respondent must be able to “dis-apply” the prohibition on the use of the CS gas in s 6 of the Weapons Control Act by recourse to s 12 of that Act. The respondent could not do so because there was no authority under any statute for the use of the CS gas by a prison officer in a detention centre. Consequently, Prison Officer Flavell committed the tort of battery when he deployed the CS gas on 21 August 2014.
Subsection 12(2) of the Weapons Control Act provides:
Sections 6 and 9 do not apply to a prescribed person acting in the course of his or her duties as a prescribed person in respect of a prohibited weapon or body armour that:
(a)is supplied to him or her by his or her employer for the performance of his or her duties as a prescribed person;
(b)is seized by the prescribed person in the course of the performance of his or her duties as a prescribed person and is not dealt with except in the course of those duties.
Subsection 12(1) of the Weapons Control Act lists those persons who are prescribed persons for the purposes of s 12(2) of the Act. Subsection 12(1)(a) of the Act provided that “the following persons are prescribed persons for subsection (2): (a) an officer as defined in s 5 of the Prisons (Correctional Services) Act”. That is, a prison officer is a prescribed person. Additionally, members of the Defence Force, police officers, members of the Australian Customs Service, and members of the Australian Protective Service are prescribed persons. The superintendent of a youth detention centre and youth justice officers are not listed as prescribed persons in s 12(1) of the Weapons Control Act.
The appellants submitted that the scope of the exemption for prison officers was governed by s 12(2) of the Weapons Control Act. That subsection provided that s 6 did not apply “to a prescribed person acting in the course of his or her duties as a prescribed person in respect of a prohibited weapon … that is (a) supplied to him or her by his or her employer for the performance of his or her duties as a prescribed person”. Those provisions were interpreted by the appellants to mean that the Weapons Control Act only exempted the use of a prohibited weapon by a prison officer when the use occurred in the course of his or her duties in respect of a prohibited weapon. That is, during the performance of the particular aspect, or set, of a prison officer’s duties which involved the use of weapons. So it was necessary to determine what duties, if any, a prison officer had as a prison officer in respect of prohibited weapons.
The appellants submitted there was only one source of prison officers’ duties in respect of prohibited weapons. That was s 62(2) of the Prisons (Correctional Services) Act. That section must be considered because it is the only statutory provision that talks about the use of weapons which are supplied to a prison officer by his or her employer. That is the language and concept of s 12(2) of the Weapons Control Act. Section 62 of the Prisons (Correctional Services) Act supplied the legal regime which enabled content to be given to the requirements of s 12(2) of the Weapons Control Act.
Section 62 of the Prisons (Correctional Services) Act (as then in force) states:
(1) This section does not affect the operation of the Firearms Act.
(2) An officer may possess and use in a prison or police prison such firearms, weapons and articles of restraint as are approved by the Director as necessary to maintain the security and good order of a prisoner or a prison or police prison.
(3) An officer may use reasonable physical force and restraint against a prisoner as he or she considers necessary to maintain the security and good order of a prisoner or a prison or a police station.
It was submitted by the appellants that by its express terms, s 62(2) of the Prisons (Correctional Services) Act restricted a prison officer’s possession and use of prohibited weapons, including CS gas containers, to possession and use in a prison or police prison, neither of which involves youths in detention centres. There was a locational aspect to the use of CS gas and other prohibited weapons by prison officers. A prison officer cannot take a canister of gas which he or she is authorised to use on prisoners in a prison or police prison only and use it on youths in a detention centre. Subsection 12(2) of the Weapons Control Act is not a facultative provision. It is an exemption from liability according to its specific terms. There cannot be an extra statutory authorisation for the use of a container of CS gas contrary to s 62 of the Prisons (Correctional Services) Act.
There was no equivalent to s 62 of the Prisons (Correctional Services) Act in the Youth Justice Act. Subsection 157(2) of the Youth Justice Act did not overcome the locational constraint on the scope of a prisoner officers duties in respect of the use of a canister of CS gas prescribed by s 62 of the Prisons (Correctional Services) Act. As the superintendent had no power under s 152(1) of the Youth Justice Act to use CS gas in a detention centre, neither did a prison officer acting under s 157(2) of the Act. The stream cannot rise above the source. A prison officer would not be acting in the course of his or her duties if the prison officer was acting outside the scope of the superintendent’s powers, and in those circumstances his conduct would not fall within the exemption granted by s 12(2) of the Weapons Control Act. While at face value the “necessary and convenient” powers granted to the superintendent by s 152(1) of the Act are potentially very wide, a superintendent did not possess the power to use CS gas in order to fulfil his functions under s 151(3)(b) of the Youth Justice Act. Contrary to what was held by her Honour the trial Judge, the powers granted by s 152(1) of the Youth Justice Act were confined by s 153(3)(b) of the Youth Justice Act, which precluded the use of CS gas by the superintendent of a detention centre. The appellants’ submissions about s 153(3)(b) of the Act were as follows.
Section 151 of the Youth Justice Act deals with the responsibilities, functions and duties of the superintendent of a detention centre. Subsection 151(3)(c) of the Act stated that the superintendent of a detention centre must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise.
Section 152 of the Youth Justice Act states:
(1) The superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions.
(2) The superintendent has power to approve the participation of a detainee in programs conducted in accordance with section 151 in place of consent by a parent or responsible adult in respect of the detainee.
(3) The powers and functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre.
Section 153 of the Youth Justice Act states:
(1) The superintendent of a detention centre must maintain discipline at the detention centre.
(2) For subsection (1), the superintendent may use force that is reasonably necessary in the circumstances.
(3) Reasonably necessary force does not include:
(a)striking, shaking or other form of physical violence; or
(b)enforced dosing with a medicine, drug or other substance; or
(c)compulsion to remain in a constrained or fatiguing position; or
(d)handcuffing or use of similar devices to restrain normal movement.
(4) However, if the superintendent is of the opinion that:
(a)an emergency situation exists; and
(b)a detainee should temporarily be restrained to protect the detainee from self-harm or to protect the safety of another person,
the superintendent may use handcuffs or a similar device to restrain the detainee until the superintendent is satisfied the emergency situation no longer exists.
(5) If the superintendent is of the opinion that a detainee should be isolated from other detainees:
(a)to protect the safety of another person; or
(b)for the good order or security of the detention centre,
the superintendent may isolate the detainee for a period not exceeding 24 hours or, with the approval of the Director, not exceeding 72 hours.
Subsection 157(2) of the Youth Justice Act (as then in force) provides:
A police officer or a prison officer within the meaning of the Prisons (Correctional Services) Act, if called upon by the superintendent of a detention centre to assist in an emergency situation or in preventing an emergency situation from arising, is taken to have been delegated the powers of the superintendent necessary to perform the superintendent’s functions under section 151(3)(c) [emphasis added].
The appellants conceded that, if nothing else followed in Division 2 of Part 8 of the Youth Justice Act, the requirement to maintain order and ensure the safe custody and protection of all persons in the detention centre in s 151(3)(c) of the Act is of such generality that a very large range of action of a familiar kind involving the application of force might be necessarily implied as a power. But the Legislature did not stop at the general power and responsibility of the superintendent to maintain order and then leave it to case-by-case arguments about whether an application of force or use of CS gas was or was not within that power or responsibility. In the sections which follow s 151 in Division 2 of Part 8 of the Act, the Legislature provided levels of increasing specificity in the powers which a superintendent could exercise to maintain order in a detention centre.
The first level of increasing specificity in the powers which a superintendent may exercise is to be found in s 152 of the Youth Justice Act. Subsection 152(1) provides that the superintendent has the powers that are “necessary or convenient” for the performance of his or her functions. Section 153 of the Act then grants a superintendent specific powers to maintain discipline at a detention centre, which the appellants submitted was an aspect of maintaining order within a youth detention centre. Subsection 153(2) of the Act states that the superintendent may use force that is “reasonably necessary in the circumstances”. This meant that the power to exercise force for the purpose of maintaining order in accordance with s 151(3)(c) was confined by s 153(2) of the Act. The power to exercise force was then further confined or restricted by the provisions of s 153(3) of the Act which specified four types of conduct that “reasonably necessary” force did not include. Importantly, s 153(3)(b) provides that “reasonably necessary” force does not include dosing with a medicine, drug or other substance. The words ‘other substance’ are wide enough to include CS gas and the use of the CS gas on 21 August 2014 constituted enforced dosing. The only exception to the conduct excluded by s 153(3) in an emergency situation was contained in s 153(4) of the Act. This exception was confined to the use of handcuffs or similar devices. Subsection 153(4) of the Act expressly provides for the additional force that may be used in an emergency situation. It regulates what may happen in an emergency situation. While s 153(4) and (5) of the Youth Justice Act, no doubt, encompass discipline, they clearly go beyond discipline. It is well established that when the Legislature provides for a specific matter on terms which involve limits and safeguards and the regulation of the conduct in question, one cannot interpret general words elsewhere that might otherwise have encompassed such conduct free of those limitations and regulation. Consequently, as the superintendent was expressly excluded from using CS gas even in an emergency, the delegation effected by s 157(2) did not include the power to use CS gas and the use of CS gas was outside the scope of Prison Officer Flavell’s duties as a prison officer. The powers that are deemed to have been delegated by s 157(2) of the Act are the powers devolved on the superintendent only.
Consideration of grounds 2 and 4
The effect of her Honour’s finding that EA was ground stabilised for 15 minutes or thereabouts is that the battery ultimately relied upon by EA at the trial (being held in a ground stabilised for 30 minutes) was not proven.
The evidence and the facts
Her Honour the trial Judge found that the incident on 5 April 2015 occurred in the way described by the youth justice officers who were involved in restraining EA. Where EA’s evidence differed from the youth justice officers, her Honour preferred the evidence of the youth justice officers.
Her Honour rejected EA’s evidence that:
(1)A number of youth justice officers placed a knee on his neck and a knee on his back.
(2)A number of youth justice officers sat on him.
(3)He bit the flexi-cuffs off.
(4)He could not reach the judas hatch with his hands cuffed behind his back.
The effect of her Honour the trial Judge’s findings at paragraph [193](1) and (2) is, once again, to find that the battery ultimately relied on at the trial by the appellant was not proven.
From her Honour’s detailed review of the evidence of the youth justice officers it may be concluded that her Honour made the following findings of fact.
At about 11.30 am on 5 April 2015 Youth Justice Officers Palu and Grieg were locking detainees down in B Block for a 30 minute staff break. EA refused to go to his room. Youth Justice Officer Grieg tried to reason with him. He repeatedly asked EA what he wanted but he refused to answer and refused to go to his room. Youth Justice Officer Grieg then went and called Shift Supervisor Church and Senior Youth Justice Officer Walton to assist. Youth Justice Officer Palu remained with EA. Officers Church, Ross, Walton and another officer then came into B Block exercise yard. Shift Supervisor Church spoke to EA about his behaviour and asked him to return to his room. EA refused and he tried to break the locks of the judas hatches on rooms 8 to 16. Shift Supervisor Church was concerned that if EA succeeded he would have access to dangerous weapons as the padlocks are heavy. Shift Supervisor Church tried to talk him out of breaking the locks and requested him to return to his room. He told EA that if he went to his room he would be back out in an hour. EA again refused, showed no sign of compliance, and continued trying to break the locks.
As a result of EA’s continued refusal to go to his room Officers Walton, Ross and Grieg approached EA to take him back to his room. As they did so, EA started to walk to his room, but when he reached his room he kicked the door to his room with considerable force. He clenched his fist as if to throw a punch at Senior Youth Justice Officer Walton. He turned his back on Senior Youth Justice Officer Walton, clenched his right fist, and gestured as if to punch him. EA was holding a water bottle in his other hand. Senior Youth Justice Officer Walton responded by pushing EA on the chest away from him and into his room. EA then threw the water bottle with considerable force at either Senior Youth Justice Officer Walton or one of the other youth justice officers. After that EA moved out of his room, he threw a punch at Senior Youth Justice Officer Walton which missed, and continued moving towards the youth justice officers until he was within striking distance.
Officers Church, Ross, Walton, Grieg and Palu then put EA on the ground. EA struggled as they fell to the ground. Shift Supervisor Church restrained EA’s legs. Youth Justice Officer Palu and Senior Youth Justice Officer Walton restrained his upper body. EA continued to struggle violently while he was on the ground – thrashing about, moving his body, tossing his head and kicking his legs. Shift Supervisor Church instructed Youth Justice Officer Grieg to place handcuffs on EA. He believed that unless handcuffs were applied to EA it was likely that he would have continued to assault youth justice officers and that someone may have been seriously injured as a result. He was aware that EA had a history of assaulting youth justice officers. As her Honour the trial Judge noted,[49] EA’s prior assaults on youth justice officers, which were recorded in the detention centre records, included kicking a youth justice officer in the chest, punching a youth justice officers on two occasions, one on the jaw, threatening staff with metal louvres, and ripping out a light and making makeshift weapons. However, he does not appear to have been charged with criminal offences for committing these alleged assaults and property damage. EA was handcuffed behind his back with flexi-cuffs.
Shift Supervisor Church left shortly after the restraints were placed on EA’s wrists because his hearing aid had fallen out and he could not remain in charge without the ability to communicate properly. Thereafter, Shift Supervisor Ross took charge.
While on the ground EA was spitting at the youth justice officers who were restraining him. Senior Youth Justice Officer Walton told EA to stop spitting but he did not. After that Senior Youth Justice Officer Walton put a spit hood or mask on EA. EA swore at the youth justice officers calling them “mother fuckers”, threatened them, and kicked his legs around violently.
As soon as the youth justice officers had sufficient control over EA to safely move him, Shift Supervisor Ross authorised EA to be moved to the security yard which was used to accommodate detainees who were at risk of self-harm or on behavioural placements. The cells in the security yard were monitored by closed circuit cameras. Officers Walton, Palu, Grieg and Ross escorted EA to the security yard and placed him face down in a cell to remove the spit hood or mask. Then they left the cell. After a period of time they returned and removed the wrist restraints from EA. He placed his hands through the judas hatch so that this could be done. It took about 10 minutes for EA to be sufficiently compliant so that the wrist restraints could be safely removed.
It is unclear whether her Honour the trial Judge made any finding about whether the youth justice officers, who were restraining EA, crossed his legs and bent them towards his bottom, or tucked them behind him, while he was face down on the ground. In paragraphs [309] and [310] of her Reasons for Judgment[50] her Honour stated:
I reject EA’s evidence that a number of YJO’s kneed him in the neck and back and sat on him. YJOs Palu and Poeling-Oer and SSs Church and Ross were cross-examined about the way EA was restrained on the ground and they said that EA was ‘ground stabilised’ with a YJO having control of each of EA’s limbs. When cross-examined about if anyone put a knee into EA’s neck or back, the response from each YJO was either that that assertion was incorrect or that they did not recall anyone putting a knee to EA’s neck or back, and SS Ross denied that EA was sat on. (The others were not asked this.) The evidence of YJOs Palu and Poeling-Oer and SS Church was that EA’s arms were being held behind his back for the purpose of restraints being applied. YJO Poeling-Oer said that EA’s legs were shackled with YJO Grieg holding onto the shackles. He denied the proposition put to him in cross-examination that EA’s legs were crossed and tucked behind him.
I also reject EA’s evidence of biting the flexi-cuffs off. […]
It is arguable that in the above remarks her Honour the trial Judge rejects the contention that EA’s legs were crossed and tucked behind him. But as we have said it is by no means clear. Even if her Honour rejected EA’s evidence about this issue, there was still the evidence of Shift Supervisor Ross to consider. In paragraph [16] of the affidavit he made on 30 August 2016, Shift Supervisor Ross stated:
While on the ground detainee [EA] continued thrashing about and kicking. He was threatening and abusing staff. I cannot recall his exact words but he is saying things like “I’m going to smash you”. YJO Grieg attempted to control detainee [EA’s] legs by crossing them up behind him to prevent him getting leverage to kick YJO’s and get back to his feet.
During his cross-examination Shift Supervisor Ross gave the following evidence about this issue.
Counsel:You don’t mention it in your affidavit that his legs were shackled too, weren’t they?
SS Ross:They were crossed.
Counsel:Do you recall them being shackled?
SS Ross:Not at this stage.
Counsel:Can you describe for me how EA was being held while he was on the ground?
SS Ross:EA was face down. Staff members would have been either side of his body and one staff member had control of his legs.
Counsel:And you says legs were crossed – were they pushed up behind his bum?
SS Ross:Yes, in order to prevent him kicking.
We find that it is possible to reconcile the difference in the evidence of Shift Supervisor Ross and Youth Justice Officer Poeling-Oer because Youth Justice Officer Poeling-Oer left while EA was still being ground stabilised. It may well be that for a period of time EA’s legs were held in the manner described by Shift Supervisor Ross and for a period of time EA’s legs were held in the manner described by Youth Justice Officer Poeling-Oer. However, nothing turns on this because EA did not give evidence that he was having difficulty breathing because of the manner in which his legs were being held.
Her Honour the trial Judge made no finding about whether EA had any difficulty breathing as a result of the manner in which he was ground stabilised and the length of time he remained on the ground. However, her Honour expressly rejected EA’s evidence about why he was having trouble breathing, namely the weight on his back area which was caused by the number of youth justice officers who he claimed sat on him. It logically follows that if the alleged cause of the breathing difficulties did not exist the breathing difficulties did not exist. It is also difficult to accept that EA had any difficulty breathing whatsoever given his continuing violent actions and the verbal threats he was making to the youth justice officers while he was ground stabilised. EA did not give evidence that he tried to inform the youth justice officers that he was having difficulty breathing and they ignored him.
In paragraphs [43] to [46] inclusive of his affidavit made on 4 August 2016, EA deposed to the following.
I was on my belly on the ground. One worker had their knee on my back and there was also knee in my neck. The workers had their hands on my arms area holding my arms behind my back. My head was on the ground facing to the side. I couldn’t really breathe out well because there was too much weight on my back area. I felt short of breath.
About three of them were sitting on me holding me down. The guard John had my legs crossed over and bent upwards so that my feet were close to my bum. It was painful being in this position.
I was on the ground for half an hour. They were sitting on me the whole time.
I started spitting on the ground while I was in that position. I was spitting because I was puffed out and my throat was getting dry because they are on top of me. That’s when they put the spit hood on me.
EA was not cross-examined about whether he was having difficulty breathing or not.
The only youth justice officer who was cross-examined about this issue was Shift Supervisor Ross. During his cross-examination he gave the following evidence.
Counsel:Have you got a copy there of the PART manual that I took you to before, exhibit P 25? […]
SS Ross:Yes.
[…]
Counsel:Can I take you please to page 124? You see that page?
SS Ross:Yes.
Counsel:And if you look at the pages beforehand, they are dealing with different kinds of restraints, aren’t they […]?
SS Ross:Yes.
Counsel:You were aware, weren’t you, that when people are being restrained face down, there are particular issues concerning the need to ensure adequate breathing?
SS Ross:Yes there is.
Counsel:Were you aware that EA suffered from asthma?
SS Ross:No I wasn’t.
Counsel:Can you see at the bottom of that where it – at the bottom section where it talks about protect breathing and circulation?
SS Ross:Yes.
Counsel:The first dot point: Breathing and circulation must constantly be assessed in a floor assisted restraint?
SS Ross:Yes.
Counsel:See that, and then the second dot point: Individuals who have difficulty breathing in a facedown position must be immediately turned, face up by using a modified log role, remembering always to hold the limbs.’ Do you see that?
SS Ross:Yes.
Counsel:EA had trouble breathing when he was being held by the (inaudible), didn’t he?
SS Ross:I don’t recall.
Counsel:Were you are assessing his breathing?
SS Ross:No.
Her Honour the trial Judge made no criticism of Shift Supervisor Ross’s failure to recall whether EA had trouble breathing while he was ground stabilised.
The expert evidence
The respondent obtained an expert report from Mr Colin Kelaher who gave evidence at the trial in the court below. His expert report became exhibit D37. Mr Kelaher gave evidence that he had worked in corrective services for 30 years. He had been the Governor of two correctional facilities including Goulburn prison in New South Wales, and between 1999 and 2006 he was employed as the CEO of Group Australia Pty Ltd which is the largest private operator of correctional facilities in Australia. As to the incident that occurred on 5 April 2015, Mr Kelaher, stated the following in his expert report.
On 5 April 2015 there was an incident involving detainee [EA]. Detainee [EA] refused to return to his cell. Shift Supervisor Church attended to secure compliance by [EA].
After some negotiation, [EA] made his way back to his cell unassisted. As he approached the door to his cell he kicked the door with force and turned back towards the escorting YJOs. Detainee [EA] feigned a punch at YJO Walton. In response YJO Walton pushed [EA] inside the cell. Before the YJOs were able to close the cell, detainee [EA] then picked up a water bottle and threw the bottle that the YJOs. [EA] then attempted to exit the cell and punch YJO Walton. The YJOs ground stabilised detainee [EA].
Detainee [EA] continued to struggle violently with YJOs while on the ground. Flexor cuffs were applied to his wrists to prevent further punching. Detainee [EA] repeatedly attempted to kick YJOs and ankle shackles were applied to prevent further kicking. Detainee [EA] spat on YJOs Walton and Poeling-Oer. A spit mask was then applied. Once detainee [EA] had calmed down he was escorted to an isolation room where the restraints were removed.
In their IOMs report dated 5 April 2015, officers Church, Poeling-Oer and Walton describe the incident in detail including attempts to de-escalate the situation by talking to detainee [EA] for some 15 minutes.
I believe the use of zip ties or flexi cuffs on this occasion was reasonable and necessary in the circumstances to stabilise the detainee from further assault attempts. From my experience flexi cuffs are a suitable substitute for steel handcuffs when required in emergency situations. I believe that the application of a spit mask was reasonable and necessary to deal with the fact that [EA] spat on the YJOs.
It is apparent that Mr Kelaher’s report had been prepared on the basis of EA’s pleaded assaults, and consequently does not deal with either the period of time that EA was ground stabilised or the dangers of asphyxiation.
During his cross-examination, Mr Kelaher was asked the following questions, among others, and gave the following answers.
Counsel:Do you also say that the ground stabilising was reasonable?
Kelaher:Yes, it’s – it’s a common way of deterring their behaviour.
Counsel:Now, I want you to assume that EA was placed on the ground face down, his arms restrained behind his back and his legs were crossed and bent upwards towards his bottom?
Kelaher:That’s an assumption?
Counsel:Yes.
Kelaher:Okay.
Counsel:And I want you also to assume that he was held that way for 30 minutes?
Kelaher:Could you just describe the way he was restrained?
Counsel:Yes, was on the ground, face down.
Kelaher:Yes.
Counsel:He had his arms restrained behind his back.
Kelaher:Handcuffed?
Counsel:And he had his legs crossed and bent up towards his bottom.
Kelaher:Okay and was he being held that way, was he?
Counsel:Yes. And that’s … I want you to assume he was held that way by several officers for 30 minutes?
Kelaher:That’s the assumption, yes.
Counsel:You say that holding EA for that length of time in that position was reasonable?
Kelaher:Totally unacceptable.
Counsel:Because of the risk to him being unable to breathe, correct?
Kelaher:Sounds to me more like punishment than normal use of force to stop certain behaviours.
In his final answer, Mr Kelaher does not adopt the proposition that the reason why ground stabilising EA for 30 minutes was unacceptable was because of the risk of him being unable to breathe when held in that manner. Instead, he states that such restraint (as he was asked to assume) would be unacceptable because it would be punishment. He was not pressed by junior counsel for the appellant to deal with the issue of difficulty in breathing. It was largely on the basis of Mr Kelaher’s answers to the above questions that EA asked her Honour the trial Judge to find that he had been battered by the youth justice officers on 5 April 2015. However, the assumptions Mr Kelaher was asked to make did not include the fact that throughout the period EA was ground stabilised he violently resisted being restrained, and was released from the ground stabilised position as soon as he became compliant. The assumptions Mr Kelaher was asked to make suggested a static restraint of a compliant detainee in a fatiguing position for an extended period of time. He correctly stated that to be held in such a manner has every appearance of punishment. But that situation is vastly removed from the circumstances that her Honour the trial Judge found to exist on 5 April 2015.
At no stage was it put to Mr Kelaher that it would be unreasonable and an unauthorised battery if EA was ground stabilised for 15 minutes, or thereabouts, in circumstances where he continued to violently resist for the whole of that period.
Consideration of ground 6
In our opinion, this final ground of appeal should also be rejected.
We accept the respondent’s submission that the point now sought to be raised on appeal was not taken below. It should be rejected on the basis of the principles enunciated in Suttor v Gundowda Pty Ltd[51] and the line of cases which follow that decision. Where a point is not taken in the court below and evidence could have been given there which, by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.[52] Similarly, the point cannot afterwards be taken where, if the point had been raised, the respondent might have conducted the case differently at trial. The appellant’s submission should also be rejected on the basis that it is elementary that a party is bound by the conduct of his or her case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him or her, to raise a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so.[53]
We accept the respondent’s submission that the respondent would have conducted its case differently if the point had been raised below and that greater emphasis would have been given to the issue of the dangers of asphyxiation and whether any of the youth justice officers observed that EA was having difficulty breathing. Presumably, Mr Kelaher could have also been asked his opinion about such matters.
If we are wrong about the application of the above principles, this ground of appeal should be rejected on the basis that no error has been demonstrated in the manner in which her Honour the trial Judge came to her conclusion that the force used to restrain EA on 5 April 2015 was reasonable and necessary.
There was a proper evidentiary basis for her Honour the trial Judge’s finding that the period of time during which EA was ground stabilised would have been more like 15 minutes – perhaps slightly more or less. That evidence is contained in the Officer Reports about the incident on 5 April 2015 attached to the affidavits of each of the youth justice officers which were read in evidence. All of the Officer Reports were made no later than 2.40 pm on 6 April 2015. The evidence in those reports is to the effect that EA became non-compliant no earlier than 11.30 am on 5 April 2015. The reports of Officers Palu and Church state that EA was escorted into the B Wing observation room at 12:00 hours, and the report of Youth Justice Officer Poeling-Oer states that “soon after approximately 12:00 hours” EA was escorted to B-wing observation room. The effect of this evidence is to put a cap of approximately a half hour on the whole incident. It is not disputed that before EA was brought to the ground he was spoken to by the youth justice officers and walked down to his cell where he kicked the door and there was an altercation during which EA attempted to assault Senior Youth Justice Officer Walton. In his Officer’s Report, Officer Palu stated that:
…at approximately 11:40 hours SS Church, SS Ross and SYJO Walton attended. SS Church spoke with detainee [EA] about his behaviour and asked him to go to his room. Detainee [EA] still refused and began to try and break the padlocks from the judas hatches. He was asked for the final time by SS Church to go to his room and once again, refused.
In his Officer’s Report, Shift Supervisor Church confirmed that he arrived at 11:40 hours and that he spoke to EA. The effect of this evidence is to reduce the time during which EA could have been ground stabilised to less than 20 minutes. In his Officer’s Report, Senior Youth Officer Walton stated that “on arriving SS Church spoke to EA for approximately 15 minutes asking him to return to his room, whilst SS Church was talking to him EA was attempting to break the padlocks of the judas hatches. EA was asked multiple times to stop his behaviour.” The effect of this evidence, taken in conjunction with the estimated time of Shift Supervisor Church’s attendance as 11:40 hours and the cap on the incident of 12:00 hours, is to reduce the period of time which EA could have remained ground stabilised to about five minutes.
However, in paragraphs [8] and [9] of his affidavit, Youth Justice Officer Poeling-Oer contradicts what he said in his Officer’s Report. He stated in effect that at 12:10 hours he was relieved by another youth justice officer who took over holding EA’s legs and returned to his rostered block to continue his duties. If it is accepted that the incident on 5 April 2015 started at 11.30 am, the effect of this evidence is that the incident lasted for more than 40 minutes and there is a greater possibility that the period EA was ground stabilised could have been as much as 30 minutes. But no categorical conclusion can be reached if his evidence was accepted because it is unknown how long EA remained ground stabilised after Youth Justice Officer Poeling-Oer left.
During his cross-examination, Youth Justice Officer Poeling-Oer gave the following evidence.
Counsel:So, how long were you there for?
Poeling-Oer:Again, I think – those sorts of things are a blur. I would say it wasn’t any more than an hour. It would be half an hour; it wouldn’t – like I said, it’s a – but have to read that again, you know time it out and it have to go through my incident report.
The above evidence is to the effect that at the time he was cross-examined, Youth Justice Officer Poeling-Oer had no idea how long he was present at the incident on 5 April 2015. So that his evidence may be disregarded.
During his cross-examination, Shift Supervisor Ross gave the following evidence.
Counsel:He was held like that for 30 minutes or so, wasn’t he?
SS Ross:I don’t recall the exact timeframe.
Counsel:Can you put a timeframe on it?
SS RossNo more than 30 minutes.
[…]
Counsel:And he was held on the ground for possibly 30 minutes?
SS Ross:No more than 30 minutes.
A fair assessment of Shift Supervisor Ross’s evidence during his cross-examination is that he could no longer accurately recall the period of time that EA was ground stabilised. All he was capable of doing when he was cross-examined was making a rough estimate of time. In his Officer’s Report he does not state when the incident on 5 April 2015 ended. Consequently, his evidence may also be disregarded.
In this instance, her Honour the trial Judge has given considerable weight to the estimates of time recorded in the various Officer’s Reports about the incident on 5 April 2014 on the basis that they were made relatively contemporaneously with the incident, are likely to have been checked and, given the nature and purpose of such records, are expected to be accurate. Her Honour was entitled to do so. No error of fact has been established.
There was also a proper basis for her Honour the trial Judge’s conclusion that the force used on EA was reasonable and necessary. EA was a dangerous and volatile detainee. A considerable attempt was made by the youth justice officers to de-escalate the situation and escort him to his cell in a normal manner. Their attempts were unsuccessful. EA attempted to break the locks on the judas hatches, attempted to punch Senior Youth Justice Officer Walton, and came out of his cell towards the youth justice officers in a threatening manner. He was ground stabilised because the officers believed it was necessary to defend themselves. He violently resisted throughout the period he was ground stabilised. He was ground restrained for the shortest possible time. As soon as he ceased resisting in a violent manner, the youth justice officers stopped ground stabilising him and escorted him to a cell. It was unsafe to carry him into his cell while he was violently resisting. He was a large youth of about 180 centimetres in height who could have been seriously injured if he was dropped on the ground.
Notices of contention
The respondent filed a notice of contention in each of the appeals. The single contention in each appeal was the finding of the trial Judge that the exemption in s 12(2) of the Weapons Control Act applied to the deployment of the CS gas by Prison Officer Flavell on 21 August 2014 was supported on a ground in addition to those relied on by her Honour. The ground of contention was that:
The trial Judge erred in not finding that the Prison Officer was acting in the course of his duties within the scope of the powers and privileges pursuant to s 9 of the Prisons (Correctional Services) Act.
Section 9 of the Prisons (Correctional Services) Act states:
Every officer while acting as such is, because if his or her appointment, taken to be a police officer and to have the powers and privileges of a police officer for performing his or her duties as an officer.
In light of our reasons for dismissing each ground of appeal in each appeal it is unnecessary to deal with the notices of contention.
Conclusion
The appeal is dismissed. We will hear the parties further as to costs.
Riley AJ
I agree with the decision that the appeal should be dismissed for the reasons given by Southwood J and Graham AJ.
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[1] o-chlorobenzylidene malononitrile.
[2] All references to the Weapons Control Act are to the Act as it was in force on 21 August 2014.
[3] Unless stated otherwise all references to the Youth Justice Act are to the Act as it was in force on 21 August 2014.
[4] LO and Ors v Northern Territory of Australia [2017] NTSC 22; 317 FLR 324 at 344-345, [123] – [124].
[5] All references to the Prisons (Correctional Services) Act are to the Act as it was in force on 21 August 2014. The Act has since been repealed.
[6] Hereinafter referred to as ground 6.
[7] Orr v Holmes [1948] HCA 16; 76 CLR 632 at 640 per Dixon J.
[8][1991] HCA 61; (1993) 178 CLR 134.
[9](1993) 178 CLR 134 at 141 - 142.
[10] Gollin v Karenlee Nominees Pty Ltd [1983] HCA 38; 153 CLR 455 at 469-470.
[11] B (a solicitor) v Victorian Lawyers RPA Ltd [2002] VSCA 204 at 2 [4]; 6 VR 642, at 645 per Ormiston JA.
[12] B (a solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 at 644 [2] per Ormiston JA.
[13] (2002) 6 VR 642.
[14] Paragraph 76 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[15] Paragraph 79 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[16] Paragraph 268 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[17] Paragraph 266 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[18] Paragraph 268 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[19] Paragraph 79 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[20] Paragraph 264 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[21] Paragraph 268 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[22] Paragraph 266 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[23] Paragraph 267 Statement of Russell Caldwell to the Royal Commission and Board of Inquiry into the Protection and Detention of Children.
[24] Her Honour the trial Judge has made a slip and misquoted s 12(2) by using the word ‘prescribed’ instead of the word ‘prohibited’. However, nothing turns on this.
[25] LO & Ors v Northern Territory of Australia (2017) 317 FLR 324 at [123].
[26] See [96] above.
[27] s 60 Prisons (Correctional Services) Act.
[28] s 61(1) Prisons (Correctional Services) Act.
[29] s 62(2) Prisons (Correctional Services) Act.
[30] s 62(3) Prisons (Correctional Services) Act.
[31] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [54]; Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 632; Cobiac v Liddy (1969) 119 CLR 257 at 268.
[32] Sarris v Penfolds Wines Pty Ltd [1962] NSWR 801.
[33] Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 686.
[34] Fonteio v Morando Bros Pty Ltd [1971] VR 658; Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681.
[35] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [59].
[36] Binse v Williams and Anor [1998] 1 VR 381 at 389 – 391; In re Birdsong 39 F. 599 (1889).
[37] Standard Minimum Rules for the Treatment of Prisoners, adopted by the First Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
[38] Binse v Williams and Anor [1998] 1 VR 381 at 390.
[39] Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) [2002] FCA 58; (2002) 116 FCR 390 at [89].
[40] Binse v Williams and Anor [1998] 1 VR 381.
[41] (2014) 34 NTLR 115.
[42] Edwards v Tasker (2014) 34 NTLR 115 at [29] – [34].
[43] Edwards v Tasker (2014) 34 NTLR 115 at [41].
[44] LO and Ors v Northern Territory of Australia [2017] NTSC 22 at [179].
[45] LO and Ors v Northern Territory of Australia [2017] NTSC 22 at [107].
[46] Supreme Court Rules r 13.12(1).
[47] LO and Ors v Northern Territory of Australia [2017] NTSC 22 at [317].
[48] LO and Ors v Northern Territory of Australia [2017] NTSC 22 at [312] – [323].
[49] LO and Ors v Northern Territory of Australia [2017] NTSC 22 at [274].
[50] LO and Ors v Northern Territory of Australia [2017] NTSC 22 at [309] – [310].
[51] [1950] HCA 35, 81 CLR 418 at 438; Bloemen v The Commonwealth (1975) 49 ALJR 219; Coulton v Holcombe (1986) 162 CLR 1 at 7 to 8; Water Board v Moustakas (1988) 180 CLR 491; Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 at [53].
[52] Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 at [53]; Multicon Engineering Pty Ltd V Federal Airports Corporation (1997) 47 NSWLR 631 at 645.
[53] University of Wollongong v Metwally [No.2] (1985) 52 ALJR 481 at 483; Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 at [54]; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645.
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