Four people awarded $800,000 in damages after a riot at the notorious Don Dale Prison in Darwin have had their compensation drastically cut on appeal by the Supreme Court.
The court had heard Ethan Austral, Leroy O'Shea, Keiran Webster and Josiah Binsaris broke out of Don Dale's Behavioural Management Unit (BMU), along with another detainee, Jake Roper, having armed themselves with gym equipment in 2014.
At that time, the four boys were between 15 and 17 years old in a facility widely criticised by human rights, Indigenous and legal organisations.
The court said Mr Roper "smashed a hole in the metal mesh on his cell door, put his hand through the hole and opened the door. This allowed him access to the exercise yard, which was a relatively narrow space outside the cells".
Once outside his cell, he began "yelling, running around and using the metal bracket from his cell light to smash various items".
Mr Binsaris and Mr Austral damaged property inside their cell whilst Mr O'Shea and Mr Webster "took no part in the disturbance," the court added.
All five were later recaptured, however, Mr Roper escaped again a few weeks later.
Staff used tear gas to subdue Mr Roper, in the process exposing the four others to the "riot control agent" while they were locked in the BMU. The court said the "CS gas fogger used to deploy the gas in the Centre was a prohibited weapon under the Weapons Control Act 2001 (NT)".
The judges noted, however, "There was no evidence that CS gas was more harmful to juveniles of the ages of the respondents than to adults. The gas was deployed in a controlled and graduated manner to ensure that only the minimum amount of gas necessary was used."
The High Court overturned the Supreme Court's verdict in 2020 that the guards' actions were lawful, and in 2023, the men were $960,000 in damages, with $800,000 of that in exemplary damages.
In overturning the exemplary damages, the Supreme Court said on Friday the High Court's decision did not change the original ruling that the use of force by the guards was necessary and not unreasonable during the riot.
The Court said an honest mistake, even if guards should have known what level of force was appropriate, was not necessarily grounds for an "award of exemplary damages".
The judges said a "fair reading" of the evidence provided by then-Deputy Superintendent James Sizeland and then-Commissioner Kenneth Middlebrook was that the reason they didn't "turn their minds to the use of CS gas in the Centre on 21 August 2014… was because they already had a belief that its use was authorised".
"This is very different to a reckless state of mind constituted by an understanding that it may not be authorised but using it anyway, or an attitude of not caring one way or the other whether its use was authorised," the court added.
The judges said whilst it was a "regrettable fact" that the safest method to deal with the situation in Don Dale was contrary to the provisions of the Act, it didn't "bespeak malice or conscious wrongdoing".
"In fact, conduct which, although unlawful, is done reasonably and in good faith is the 'antithesis of conduct which should be punished by an award of exemplary damages,'" they added.
The NT government, who have fought the charges for a decade in one way or another, accepted without the exemplary damages the men were entitled to interest. This will now apply to the remaining $160,000 in general damages between the four of them.
The North Australian Aboriginal Justice Agency (NAAJA) have represented four of the youth since litigation commenced in 2015.
In a statement, they said they were "assisting its clients to review the decision and consider their appeal options".
"After 10 years, the Northern Territory Government is still unwilling to acknowledge the seriousness of tear gassing young people in their care and has sought to litigate rather than resolve the claims of the youth affected," a NAAJA spokesperson added.
