Northern Territory Supremes shot down by the High & Mighty … Tear gas at Don Dale … What is a prison? … NT Court of Appeal delays locking-in sentencing order in drug case … Too much Vietnamese singing at Palmerston prompts bottle attack … Alan Zheng reports
In Binsaris, the heat was beginning to return to Darwin on the day of August 2014 when four Indigenous boys started tearing up and coughing. They were feeling an intense irritation in their noses and throats. Their breathing was raspy and difficult. They had found themselves on the receiving end of unwanted face-fulls of tear gas.
At the time, all four boys were detained in Darwin’s infamous Don Dale Youth Detention Centre. They were housed in a special part of the Centre known as the ‘Back Cells’ or, officially, the Behavioural Management Unit, which only comprised a mattress and stainless steel toilet.
Former Northern Territory Minister for Corrections John Elferink had described the Don Dale centre as being unequipped “for the most basic human functions.” If Don Dale was the worst, then the Back Cells were the worst of the worst.
Each of the boys subsequently commenced proceedings in 2016 seeking damages for intentional torts of assault and battery arising from several incidents, including the use of tear gas.
They claimed the use of a CS fogger was unlawful because the deployment of tear gas breached the Weapons Control Act 2001 (NT) and associated regulations prohibiting the use of gas which “can cause disability, incapacity or harm to another person”.
However, the CS Fogger can lawfully be used under some exemptions, including by prison officers, the meaning of which lay at the crux of the dispute.
According to the applicants, the now repealed NT Prisons Act empowered prison officers to possess and use in prisons such weapons as approved by the Director to maintain the security and good order of prisons and police prisons. This, they argued, did not empower weapon use in youth detention facilities.
The Territory argued that PO Flavell, a member of the immediate action team (IAT) from the neighbouring Berrimah Correctional Centre, had lawfully deployed the tear gas because he was appointed by the Director of Correctional Services and the CS fogger was supplied to him in performance of his duties.
Both the Supreme Court at first instance (Kelly J) and Court of Appeal (Southwood J, Riley and Graham AJJ) agreed with the Territory’s wider view.
Additionally, they found, PO Flavell’s deployment of the tear gas had been lawfully delegated and authorised by the wide powers of Russell Caldwell, Don Dale’s superintendent. Those powers allowed Caldwell to do what was “necessary or convenient” for his functions, including deploying tear gas to “bring to a halt a riot, or anarchy or violence”.
The Supremes rejected the substantive claims in tort. The assault claim arising out of the tear gas incident failed because there was no evidence of a threat by the officers to inflict harmful contact. The “mere presence” of several IAT officers wielding a CS fogger and a corrections dog was not sufficient.
The battery claim against the deployment of tear gas was no good either because the court found PO Flavell had lawful authority to deploy it.
Despite these findings, Justice Judith Kelly awarded damages for two other batteries involving the use of spit hoods and leg shackles .
The NT Court of Appeal had little else to add, despite NAAJA parachuting in fan favourite Bret Walker SC to lead Kathleen Foley on the boys’ appeal.
That there was new evidence on appeal was also not enough to swing the scales.
A written instrument appointing Caldwell as superintendent had fallen into the appellants’ hands. Caldwell had been formally appointed superintendent in September 2014, a month after the tear gas incident. He could not have authorised the use of tear gas at the relevant time.
The appeal judges would have none of the formalistic reading of the appointment rules, finding all that was needed for the appointment to take effect was the director orally communicate the appointment to the prospective appointee. The appellants’ motion to adduce the instrument was dismissed.
The court otherwise affirmed the trial judge, finding that as long as prison officers acted within the scope of their duties, then the use of any weapon supplied by the employer, could be exempted and capable of lawful use.
The High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) concisely dispatched the reasoning at first instance and appeal via three separate judgments, ordering the Territory to pay damages and cough-up costs.
In 21 brief paragraphs, Kiefel CJ and Keane J wasted no time picking apart the reasoning below. The use of any weapons against detainees was not positively authorised under law and to the contrary, one provision explicitly barred the use of any “form of physical violence”.
There was no statutory backing to the suggestion that one of the purposes for which a weapon could be supplied to a prison officer was to deploy tear gas on detained youth.
Alongside similar reasoning by Edelman and Gordon JJ, the Last Chance Saloon found the appellants had been right all along.
Even if PO Flavell otherwise had the authority to deploy tear gas, he could only do so when discharging his duties as a prison officer in a prison setting, not when delegated powers by a superintendent in a youth detention centre.
Gageler J’s trademark individualism set him adrift on different waters to the others. For one thing, he disagreed that the deployment of tear gas was impliedly confined to prisons, finding that the “security and good order” of prisons was but one purpose in which tear gas could be deployed and the statute remained silent on other authorising purposes.
Whether tear gas could be deployed in a youth detention centre hinged on whether it was reasonably necessary to achieve its purpose of restraining a breach of the peace caused by a detainee.
Despite Edelman and Gordon JJ’s suggestion that the relevant issue did not “turn on engaging or applying any wider principle”, Gageler found himself in a narrow subset of tort law concerning the power of police to interfere with innocent third parties, an area which had a “surprising dearth of modern authority”.
Revisiting the facts, Gageler gave weight to the fact that some of the Don Dale boys had not been involved in breaching the peace which preceded the deployment of tear gas.
In effect, he found that those boys had become collateral damage after the superintendent’s calculated decision to “do an act which it is known will cause harm to a bystander”. Such an interference constituted battery without a defence. Damages should follow.
Binsaris was an early omen of a horror month to come for the Territory’s Supremes.
The less-publicised case of Cumberland v The Queen involved 23-year-old Jesse Cumberland who had pleaded guilty to six drug offences arising out of commercial dealing in cannabis and MDMA, including to a 16-year-old child over a period of four months.
Cumberland was off to the greybar hotel but not for long thanks to mitigation. It was true that Cumberland was young, had a reasonable work history and favourable references. He had also suffered “long-term anxiety, fear and anger management problems” since the age of 15 when he was the victim of a violent assault.
The Supreme Court heard from a psychologist that 52-66 percent of people diagnosed with post-traumatic stress disorder develop substance abuse issues.
Justice Jenny Blokland, at trial, was sympathetic. Cumberland received four years and six months with a partial suspension on the table after two years.
The prosecution appealed, arguing the sentence was manifestly inadequate because the supply of a dangerous drug like MDMA justified punishment, denunciation and deterrence.
The Court of Appeal (Grant CJ, Kelly, Barr, Hiley JJ and Riley AJ) agreed and allowed the appeal.
But things went around the twist thereafter, with a near 11-month delay after judgment before the NTCA got its act together to lock in the re-sentencing orders.
Meanwhile, nearly two years had passed from the time Cumberland had entered the clink. He was only one week out from being released when the Court of Appeal re-sentenced him to eight years imprisonment.
Ex-South Australian District Court Judge Marie Shaw QC saddled up for Cumberland in the High Court (Virginia Bell, Stephen Gageler and Geoffrey Nettle JJ) arguing that the appeal hearing and subsequent delay had deprived the appellant of procedural fairness by denying him the proper opportunity to place further material before the court.
Despite email correspondence from the appellant’s counsel requesting consideration of a prison report, the NT court had re-sentenced Cumberland without doing so.
To make matters worse for the Top Enders, the Court of Appeal also erred in applying the principles relating to Crown appeals.
Emails between Shaw and the court had foreshadowed a submission on the appellate court’s residual discretion to dismiss the Crown appeal even where the sentence was shown to be erroneously lenient.
After the delay, “the discretionary factors against allowing the Crown appeal … were overwhelming”.
With its back against the wall, the Crown conceded procedural unfairness and sought the matter be remitted to the NTCA – which was refused.
Setting aside the re-sentencing orders would have left the original sentence in place, under which Cumberland would have been already released into the community. This made any remittal futile. Too bad for the Crown.
Cumberland did not spell the end of the bad month for the lawn order in the Territory, with error paving the way to a successful appeal in Nguyen v The Queen.
Singing the same song multiple times can make some people angry and a beer bottle, thrown with a shot-putter’s force, can cause a fractured skull, subdural haemorrhage and surgical intervention.
Those were the issues in Nguyen.
The drinks were flowing and there was singing of Vietnamese songs at a gathering in Palmerston.
Apparently the convivialities were irreparably damaged once Nguyen sang the same song three times. Words were exchanged between Nguyen and two other men and things escalated.
In the circumstances, the humble bottle was mightier than the sword. With hawkish accuracy, Nguyen used two beer bottles to injure Muoi Nguyen and Hung Tran.
Van Dung Nguyen was charged with assault and causing serious harm. At trial, the jury was unable to reach a verdict.
The relevant pillar of the Crown’s evidence was a record of a police interview where Nguyen admitted throwing a bottle of beer at the other person but said he had only done so in self-defence.
On the re-trial, the Crown decided it would not tender the record for what it termed “tactical” reasons. Its view was that the video was wholly or substantially exculpatory and not admissible. In any case, the Crown argued, it had absolute discretion on what to adduce.
Nguyen’s counsel had doubts and countered that the record was a mixed statement because it was inculpatory and exculpatory in nature. It was therefore admissible and should be tendered in fairness.
The Full Court, (Kelly, Blokland and Barr JJ), following its own decision in Singh, found that while the record was admissible there was no obligation to tender the record during the re-trial.
“There is no general rule or principle that the duty of fairness requires the prosecution to tender a record of interview with an accused simply because it contains admissible material.”
The re-trial was stayed and whether the record should be tendered wound its way to the High Court. In three separate judgments (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ; Edelman J; Nettle J), the Saloon came through for Nguyen, finding that the record should be tendered as a matter of fairness.
The Territorians’ hiccup lay in their conflation of the duty of the prosecutor and the admissibility of mixed statements. Whilst it is the prosecutor’s discretion to decide what evidence is presented, this is balanced against the prosecutorial duty to put its case fully and fairly before the jury.
That latter duty, despite some divergence of opinion, demanded that the record be tendered.
“There can be no doubt that fairness encompasses the presentation of all available, cogent and admissible evidence.”
The High & Mighty found the record comprised both exculpatory statements relating to a possible explanation of self-defence and inculpatory statements relating to Nguyen’s intention to throw the beer bottles.
Like the Carole King song, if the Crown wanted to bring in the fact that Nguyen intended to throw the bottles, it was obliged to take the bitter with the sweet and tender the whole record.
There were only limited instances in which it would be unfair to an accused to tender a record, including where an accused refused to comment.
As Edelman J put it, the Crown’s tactical decision not to adduce evidence of the admissions would have required Nguyen – a person “with cultural and linguistic disadvantages” to expose himself to cross-examination in order to put his account of events before the jury, an approach inconsistent with the prosecutor’s duty of fairness.
“In the absence of any compelling reason for the prosecution not to tender the record of interview, the maintenance of that refusal at trial is extremely likely to have been productive of an unfair trial with the consequence that any conviction would have involved a miscarriage of justice.”
With a trifecta of judgments reversed on appeal, the NT Supremes have – like their socially distant brethren in Victoria – been isolated, rejected and invalidated.