Skeen v Northern Territory of Australia

[2021] NTSC 78

CITATION:Skeen v Northern Territory of Australia [2021] NTSC 78

PARTIES:SKEEN, Peter

v

NORTHERN TERRITORY OF AUSTRLAIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:2021-01659-SC

DELIVERED:  21 October 2021

HEARING DATE:  21 October 2021

JUDGMENT OF:  Kelly J

REPRESENTATION:

Counsel:

Appellant:K Foley and M Nguyen with P Morgan

Respondent:  T Moses

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Solicitor for the Northern Territory

Judgment category classification:    C

Judgment ID Number:  Kel2117

Number of pages:  5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Skeen v Northern Territory of Australia [2021] NTSC 78

No. 2021-01659-SC

IN THE MATTER of an appeal under the Local Court (Civil Procedure) Act 1989 (NT)

BETWEEN:

PETER SKEEN

Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA

Respondent

CORAM:    KELLY J

REASONS FOR JUDGMENT

(Delivered 21 October 2021)

1. This is an appeal against a decision of the Local Court dismissing the appellant’s claim for damages for four alleged acts of battery said to have been committed on the appellant by two Youth Justice Officers while the appellant was a detainee at the Don Dale Youth Detention Centre on 12 December 2016.  The acts of the Youth Justice Officers alleged to constitute battery in the amended statement of claim were:

   (a)lifting the appellant off his feet and then dropping him to the ground on his head;

   (b)placing a knee on the appellant’s back to hold him on the ground;

   (c)placing an arm or knee at the back of the appellant’s neck to hold his head to the ground;

   (d)holding the appellant face-down on the ground for over one minute;

   (e)removing the appellant’s shirt; and

   (f)removing the appellant’s shoes and socks.

2. The appeal against the judgment of the Local Court alleges that the reasons for decision are inadequate.  The notice of appeal contends that the trial judge erred in the following specific respects:

   ·failing to make adequate findings as to the force used against the appellant to enable a proper understanding of the basis on which the issues in the proceeding were resolved [Ground 1 (a)];

   ·failing to give adequate reasons for any such findings and/or for the dismissal of the appellant’s action [Ground 1(b)];

   ·failing to address, adequately or at all, whether the force used against the appellant constituted physical violence within the meaning of s 153(3)(a) of the Youth Justice Act 2005 (NT) as it stood at the relevant time [Ground 2];

   ·failing to give adequate reasons for finding, in light of the other options available to deal with the appellant, that the force used against the appellant was reasonably necessary in the circumstances [Ground 3]; and

   ·failing to address, adequately or at all, the appellant’s claim that the removal of his clothing and shoes constituted battery [Ground 4].

3. The respondent has conceded that the appeal should be allowed on Grounds 2 and 4 and this concession is rightly made.

4. The trial judge’s reasons do not deal at all with the allegations pleaded at paras [13] and [14] of the amended statement of claim – ie that the Youth Justice Officers removed the appellant’s shirt, shoes and socks and that this constituted a battery.

5. The trial judge’s reasons refer to s 153 of the Youth Justice Act as in force from 24 May 2018, rather than the date of the actions of the Youth Justice Officers said to constitute battery. This is important because s 152(2) provides that to maintain discipline, the Superintendent (and his delegates) may use force that is reasonably necessary in the circumstances. However, s 153(3)(a) as in force in December 2016 specified that reasonably necessary force does not include striking, shaking or other form of physical violence, and the appellant’s contention at trial was that the actions of the Youth Justice Officers amounted to “physical violence” within the meaning of s 153(3)(a). The trial judge in his reasons did not deal at all with the appellant’s contention that the actions of the Youth Justice Officers amounted to physical violence within the meaning of s 153(3)(a) – a logically prior consideration to the question of whether the force used was reasonably necessary. Instead, at para [10] of the reasons, the trial judge simply set out s 153 of the Youth Justice Act as it was in force as at 24 May 2018 (which did not contain that probation on “physical violence”) and found that the force used by the Youth Justice Officers was reasonably necessary in the circumstances.

6. An appeal from the Local Court to the Supreme Court is limited to questions of law.[1]  Both of these errors are errors of law.  Ground 4 involves an error of law in failing to apply the provisions of the Youth Justice Act in force at the relevant time.  Further, both Ground 2 and Ground 4 involved a failure to provide proper reasons.  A trial judge’s reasons for decision must identify the relevant legal principles and the main factual finding on which the judge relies in coming to the decision, so as to allow the parties to understand the basis of the decision and enable an appeal court to discharge its duty.[2]  These reasons fail to do so: the appellant’s claim for damages for battery was dismissed without the trial judge giving any reason for dismissing the claim for battery constituted by removing the appellant’s shirt, shoes and socks; and the reasons did not deal with the appellant’s contention that the actions of the youth Justice Officers amounted to physical violence.  The appeal should be allowed on Grounds 2 and 4.  That makes it unnecessary for me to deal with the other grounds of appeal.

7. The parties are agreed that the appropriate order in the circumstances is for the matter to be remitted to a differently constituted Local Court for retrial.  I agree.

8. ORDERS:

   (a)The appeal is allowed.

   (b)The matter is remitted to a differently constituted Local Court for retrial.

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[1]      Local Court (Civil Procedure) Act1989 (NT) s 19

[2]      DL v The Queen (2018) 266 CLR 1 at 12-13 [32] – [33] per Kiefel CJ, Keane and Edelman JJ; Mobasa Pty Ltd v Nikic (1987) 37 NTLR 199 at 202 - 204