Disturbing footage of teenagers being handcuffed and hosed down after being teargassed at the notorious Don Dale Detention Centre has been seen as evidence in an Northern Territory supreme court case.
The vision, which will not be released to media, is part of the NT government’s appeal over nearly $1m compensation awarded last year to four teenagers who were unlawfully teargassed at Don Dale detention centre in 2014.
Played before justices John Reeves, John Burns and chief justice Michael Grant, the video shows children screaming, with one yelling “my arm … my arm,” while another pleaded for more water to be hosed into his eyes to counter the effects of the teargas.
The NT government’s appeal is the latest turn in the decade-long compensation case and relates to an incident on 21 August 2014, when another detainee, Jake Roper, escaped from his cell within the Behaviour Management Unit of the centre and damaged property.
Last year Justice Jenny Blokland found the Northern Territory government unlawfully used the gas, a controlled weapon under NT legislation, without consideration of the four boys who were not out of their cells.
Blokland awarded Keiran Webster, Leroy O’Shea, Josiah Binsaris and one other teenager, who cannot be named, exemplary damages after officers in the centre deployed CS gas – a form of teargas – to “incapacitate” another boy during a “serious disturbance” in 2014.
Binsaris and one other boy were seen damaging property within their cell, but Webster and O’Shea could be seen sitting playing cards ignoring the disturbance around them.
She also found the way staff responded before, during and after the incident to be “callous” after guards failed to give any warning the noxious gas was about to be used.
In one of the videos shown to the court a guard can be heard saying he will “pulverise’ one of the boys and “that’ll learn you … now he is shitting himself” as the gas incapacitated the children.
But counsel for the NT government David McLure SC, challenged numerous statements of facts in Blokland’s judgment, including that the guards knowingly used teargas unlawfully.
The government argued the way the guards hosed down the children was in fact not callous and part of “decontamination” after being exposed to the potentially lethal gas. He said there was “no evidence of conscious wrongdoing”.
McLure went on to argue the children needed to be restrained as they had “previously escaped and presented escape risks”.
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He said the guards tried numerous ways to contain Roper including using an attack dog, but that plan was aborted when the door they wanted to use had been damaged by the teen.
He also argued an earlier judgment by Justice Kelly in 2016 had found the use of CS-gas as the “least restrictive” option after a plan to use an attack dog failed because the boys had damaged an exit door.
He argued the amount awarded to the boys by Blokland was “manifestly excessive”. He said if the court were to award any amount at all, then they should consider existing precedence where plaintiffs were awarded just $100,000 for damages after police used excessive force.
Counsel acting on behalf of the four boys Kathleen Foley SC said the way they were treated during and after the incident was deemed callous.
“We refer to the way that they were removed from their cells and being handcuffed behind their back, with their faces on the ground, hosed down, not being available to receive medical care until 10pm…,” she told the court.
“The use of the CS gas was not an unconscious decision. It was a deliberate act, and it was a deliberate act in relation to all of the respondents,” said Fowley.
Fowley referred to the evidence given by O’Shea, who was asthmatic and sharing a cell with Webster.
In an affidavit to the court, he said he feared he was going to die after the gas was deployed.
“The teargas affected me badly and from the way I saw Keiran acting, it seemed to affect him badly as well.
“My throat was burning, I was choking, my eyes were stinging, and my nose was running. Keiran looked like he was throwing up.
“After they sprayed the teargas, I felt complete fear. I thought I was going to die. The worst thing was not knowing how long it was going to last and how long we were going to have to sit in there and burn.”
The case was adjourned for consideration on Wednesday and no date has been set for a decision.
