Federal Court of Australia

Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    The applicant is a man of the Kngwarraye and Aranda People who was born in August 1994 and grew up in Alice Springs. From the age of 14 years he spent periods in custody, ordered under the Youth Justice Act 2005 (NT) (the YJ Act). These included periods at the Alice Springs Youth Detention Centre (ASYDC) and at the Don Dale Youth Detention Centre (Don Dale) in Darwin. In addition, the applicant was held, while still a youth, for five days at the Darwin Correctional Centre, Berrimah (the DCC). There is an issue in the proceedings as to whether that was authorised by the YJ Act.

2    Each of the ASYDC, Don Dale and DCC is an institution established and maintained by the Northern Territory of Australia (the Territory).

3    Since turning 18 in August 2012, the applicant has served periods in adult prisons in the Territory.

4    These proceedings concern events and circumstances which occurred in the period from April 2011 to July 2012 while the applicant was in custody. The applicant claims that particular incidents constituted the torts of false imprisonment, the torts of battery or assault, and involved breaches of the duty of care owed to him by the Territory. He asserts that some of the conduct of officers in the Detention Centres constituted breaches of the YJ Act and of the Youth Justice Regulations 2006 (NT) (the Regulations) made under that Act. The applicant claims damages and compensation in respect of the consequences of these torts.

5    The applicant also claims that certain conduct constituted discrimination in contravention of ss 9(1) and 9(1A) of the Racial Discrimination Act 1975 (Cth) (the RD Act). He seeks relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), including an order for payment of damages by way of compensation in relation to the claimed contraventions and, in addition, invokes s 10 of the RD Act.

6    The first respondent is the Territory. The applicant alleges that it is liable, whether directly or vicariously, for the acts and omissions of officers in the Detention Centres of which he complains and that it breached a non-delegable duty of care it owed to him.

7    The second respondent is named as the “Superintendent of Don Dale Youth Detention Centre”. In effect, the applicant sues the office of Superintendent. No issue was taken in the trial about this manner of naming the second respondent. The applicant sues the Superintendent in the alternative because the Territory denies that it can be liable for the conduct of which the applicant complains, even if that conduct is otherwise established.

A chronology of the applicant’s detentions and imprisonments

8    It was common ground that to the date of trial the applicant has been held in detention or in prison in the Territory as follows:

9    The “ASJDC” in the table refers to the Alice Springs Juvenile Detention Centre. It is the name by which the ASYDC was formerly known. The “ASJHC” is the acronym for the Alice Springs Juvenile Holding Centre. Mr Yaxley, one of the respondents’ witnesses, described the ASJHC as a basic facility used for the short term accommodation of detainees with upcoming court appearances in Alice Springs. Although use of the ASJHC ceased in early 2011, it recommenced for a period in April 2012.

10    As an adult prisoner, the applicant was transferred between ASCC and the DCC for short periods, for example, to facilitate medical examinations and for like purposes. In addition, while at ASYDC he was for very short periods transferred to ASJHC because of short term accommodation difficulties at ASYDC. Those short periods have not been shown in the table.

11    The table indicates that, from 22 May 2009 to the time of trial, the applicant had not been in detention or imprisonment only in the following periods:

    24/07/2009 – 03/02/2010

    02/05/2010 – 21/11/2010

    13/11/2012 – 22/03/2013

    27/07/2013 – 31/08/2013

    02/09/2013 – 07/11/2013

    06/07/2014 – 25/08/2015

12    The applicant was in custody at the time of the trial, and arrangements were made for him to be brought to Court from custody.

An overview of the applicant’s claims

13    The events and circumstances which are the subject of the present proceedings are these:

(a)    the alleged unlawful isolation of the applicant at ASYDC on the night of 7 April 2011, which the applicant alleges constituted unlawful imprisonment;

(b)    following the transfer of the applicant from ASYDC to Don Dale on 15 October 2011, the keeping of him at Don Dale (other than for short periods at ASYDC and the DCC) until 9 July 2012. The applicant alleges that this constituted a breach of the duty of care owed to him by the Territory or the Superintendent resulting in negligent false imprisonment and mental harm;

(c)    the holding of the applicant in isolation at Don Dale and at the DCC between 27 December 2011 and 9 January 2012, which the applicant alleges constituted unlawful imprisonment;

(d)    the use of spit hoods on the applicant on three occasions while he was in the DCC between 28 December 2011 and 2 January 2012, which the applicant alleges constituted a battery, assault and a breach of the duty of care owed to him by the Territory or the Superintendent;

(e)    two incidents on 29 May 2012 at Don Dale, in the first of which the applicant says he was injured by an inappropriate use of force by detention officers when handcuffing and restraining him and in the second of which he alleges that he was subjected to an inappropriate use of force by Corrections Officers from the DCC. He alleges that the conduct in the first incident constituted an assault, battery and a breach of the duty of care, and that the conduct in the second a battery or assault;

(f)    the failure by the Territory or the Superintendent to test, diagnose and treat a visual disability from which the applicant says he suffers, which he alleges constituted a breach of the duty of care.

14    The applicant also pleads that the conduct of the Territory in transferring him from ASYDC to Don Dale in October 2011, the refusal to transfer him back to ASYDC in November 2011 and thereafter until 9 July 2011, and the placement of him at the DCC from 28 December 2011 until 2 January 2012 constituted contraventions of ss 9(1), 9(1A) or 10 of the RD Act. These claims were modified and confined in the final submissions.

15    The respondents denied liability on each of the applicant’s claims. In addition, they raised three substantive defences:

(a)    by reason that superintendents exercise an independent statutory discretion in the management of detention centres, the Territory cannot be liable, whether directly or vicariously for the actions on which the applicant sues;

(b)    by reason of s 215 of the YJ Act, the Superintendent has an immunity from action, because the acts which he impugns were done in good faith; and

(c)    the applicant’s claims, other than his RD Act claims and the claims in respect of the DCC, are time-barred.

16    As the reasons which follow will indicate, I consider that the applicant has made out only one of his claims, namely, the claim of unlawful imprisonment at Don Dale in the period between 2 and 9 January 2012. However, relief cannot be ordered in respect of that claim because it is time barred and, in the final submissions, the applicant abandoned any claim for an extension of time in which to commence the proceedings. Accordingly, the application must be dismissed.

Statutory provisions

17    The provisions of the YJ Act to which I refer in this section of the reasons are those which were in force in 2011 and 2012, being the times relevant to these proceedings. It is, however, convenient to refer to them in the present tense. The Prisons (Correctional Services) Act 1950 (NT) (the Prisons Act) which was applicable at the time of the events in issue in these proceedings, was repealed in 2014 but it is also convenient to refer to it in the present tense.

18    Under Pt 6 of the YJ Act, the Youth Justice Court in the Territory may, amongst other alternatives, order a youth found guilty of a criminal offence to serve a term of detention or imprisonment (s 83). Likewise, the Supreme Court of the Northern Territory may, when sentencing a youth, order that the youth “be detained in a detention centre or imprisoned” (s 82).

19    The YJ Act does not contain any definition of the word “detain”. However, Pt 8 of the YJ Act provides that the Minister, relevantly the Minister for Correctional Services, may approve an establishment to be a youth detention centre for the purposes of the YJ Act (s 148). By s 149(1) a youth must not be admitted to a detention centre except in accordance with the YJ Act. Section 5 defines a “detainee” to be “a youth lawfully detained in a detention centre”.

20    It was common ground that the applicant had been ordered by the Youth Justice Court or the Supreme Court to serve the periods in detention occurring before 13 November 2012, that ASYDC and Don Dale had been approved as detention centres, and that the applicant’s admissions to those detention centres had been in accordance with the YJ Act. In particular, it was not suggested that either s 82 or s 83 of the YJ Act had required the Supreme Court, in the sentence imposed on the applicant on 23 August 2011, to specify the detention centre in which he was to be held. In this respect, the powers of the Courts stand in contrast with their powers when refusing a youth bail. In those cases, the Courts must “specify the detention centre or other place at which the youth is to be detained” (s 24(3)).

21    Section 151(1) of the YJ Act requires the Director of Correctional Services (the Director) appointed under the Prisons Act to appoint an employee, within the meaning of the Public Sector Employment and Management Act 1993 (NT) (the PSEM Act), to be the superintendent for a detention centre. By s 151(2), such a superintendent is “responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees in the detention centre” (s 151(2)).

22    Section 151(3) of the YJ Act imposes obligations on superintendents:

S 151(3)    The superintendent of a detention centre:

(a)    must promote programs to assist and organise activities of detainees to enhance their wellbeing; and

(b)    must encourage the social development and improvement of the welfare of detainees; and

(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; and

(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 the removal of a detainee to a hospital for medical treatment.

23    As is apparent, s 151(3) imposes obligations on a superintendent, amongst other things, to maintain order and ensure the safe custody and protection of all persons within the precincts of the detention centre, whether as detainees or otherwise, and to be responsible for “the maintenance and efficient conduct of the detention centre”.

24    Section 152 of the YJ Act vests superintendents with the following powers:

152    Powers of superintendent

(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.

25    The respondents emphasised that the superintendents have the powers that are “necessary or convenient for the performance of [the superintendent’s] functions” (s 152(1)). In JB v Northern Territory of Australia [2019] NTCA 1; (2019) 343 FLR 41 at [118], Southwood J and Graham AJ described the power granted by s 152(1) of the YJ Act as “a very wide grant of power which is intended to ensure the superintendent has adequate capacity to perform his or her wide ranging functions and duties under the Act”. It is established that the power to do all things which are “necessary or convenient” for the performance of a function, while broad, is strictly ancillary, authorising the provision of subsidiary means of carrying into effect what is enacted in the statute itself and encompassing what is incidental to the execution of its specific provisions: Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 249-50. The power does not support attempts to widen the purposes of the Act, to add new or different ways of carrying them out, or to depart from the plan which the legislature has adopted to attain its ends: ibid.

26    Section 153 concerns the maintenance of discipline in a detention centre:

153    Discipline

(1)    The superintendent of a detention centre must maintain discipline at the detention centre.

(2)    For subsection (1), the superintendent may use the 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 be temporarily 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.

27    As is apparent, the superintendent is required to maintain discipline at the detention centre and, subject to subs (3) and (4), may use “the force that is reasonably necessary in the circumstances” in order to do so.

28    Section 153(5) permits a superintendent to isolate a detainee from other detainees for two specific purposes but limits the periods in which a youth can be held in isolation. Without the approval of the Director, the isolation must not exceed 24 hours (s 153(5)). Even then, the isolation may not exceed 72 hours. There is no provision for extension of the 72 hour maximum.

29    Section 154 provides for circumstances in which a detainee in a youth detention centre may be transferred temporarily to a prison:

154    Temporary removal of detainee to prison

(1)    If the superintendent of a detention centre is of the opinion that:

(a)    an emergency situation exists; and

(b)    a detainee should be temporarily transferred to a prison to protect the safety of another person,

the superintendent may apply by telephone to a magistrate for approval to transfer the detainee.

(2)    Subsection (1) applies only in relation to a detainee who is 15 years of age or older.

(3)    If the magistrate approves the transfer, the superintendent may arrange for the detainee to be transferred from the detention centre to a prison.

(4)    The approval must be in writing and the magistrate must send a copy of the approval to the superintendent as soon as practicable.

(5)    The superintendent may proceed under the telephone advice of the magistrate's approval despite that the written approval has not been received.

(6)    If the written approval has not been received, the superintendent must sign a version of the approval as authority for the person in charge of the prison to take the detainee into his or her custody.

 (7)    The period of transfer of the detainee must not exceed 24 hours.

(8)    However, the superintendent may apply to a magistrate for an extension of the period of transfer.

…

30    The effect of s 154 is that the circumstances in which a detainee may be transferred to an adult prison are limited. First, superintendents must be of the opinion that, an emergency situation exists, and that the detainee should be transferred temporarily to a prison “to protect the safety of another person”. The term “emergency situation” is not defined in the YJ Act. Secondly, superintendents may not act solely on their own opinion but must obtain the approval of a magistrate for the transfer (the approval may be obtained by telephone). Thirdly, the period of the transfer must not exceed 24 hours, although the superintendent may apply to a magistrate for an extension of the period (s 154(8)).

31    Section 157 provides for the delegation of powers and functions by a superintendent:

157    Delegation by superintendent

(1)    The superintendent of a detention centre may delegate in writing any of his or her powers and functions under this Act to:

(a)    a member of the staff of the detention centre; or

(b)    a person authorised by the Director for section 165(b).

(2)    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).

Matters pertaining to detention generally

32    At the times relevant to these proceedings, there were two principal detention centres in the Territory. These were Don Dale and ASYDC. Don Dale was much larger than ASYDC.

33    In 2011 and continuing to 4 September 2012, Mr Middlebrook, one of the Territory’s witnesses, held the substantive position of Executive Director for Northern Territory Correctional Services. This was the position of “Director” for the purposes of the YJ Act. There is an issue about the occupancy of that position during a period when Mr Middlebrook was on leave to which it will be necessary to return.

34    The evidence did not contain any document evidencing the formal appointment of a person as superintendent of either ASYDC or Don Dale. The respondents’ witness, Mr Fattore, deposed that the position of General Manager of Youth Detention based at Don Dale “encompassed the statutory positions of Superintendent of Don Dale and Superintendent of [ASYDC]”. He held that position until 28 October 2011 when he was succeeded by Mr Yaxley. The latter gave evidence to like effect, as did Mr Middlebrook. Mr Yaxley also explained that in 2011 and 2012, “Youth Justice” had been part of the Department of Correctional Services, which used the terminology of “General Manager”. Hence, this term had also been used in relation to his position.

35    No point was taken about the absence of evidence of a formal appointment of Mr Fattore or Mr Yaxley as Superintendents of Don Dale or of ASYDC.

36    A number of persons were employed in the detention centres, including Youth Justice Officers (YJOs) and Case Managers or Case Workers. Some YJOs were referred to as “Youth Workers” or “Senior Youth Workers”. Each detainee entering detention was allocated a Case Manager. Broadly speaking, YJOs were responsible for security, responding to incidents and generally managing detainees through the daily routines. Case Managers, on the other hand, were responsible for the well-being and rehabilitation activities of the youths in detention.

37    Mr Donald, the applicant’s Case Manager at Don Dale, said, and I accept, that an important task of Case Managers was the making of arrangements for detainees to contact their families. This involved establishing and maintaining the approved-contact telephone system and, on occasion, making arrangements for contact via videolinks.

38    Most of the detainees at Don Dale and ASYDC were male. Generally, female detainees were accommodated at Don Dale. The great majority of detainees were Indigenous. Mr Yaxley said that he could recall only “a handful” who were not Indigenous and Mr Donald said that he could recall only one or two.

39    The number of detainees in detention at any one time could fluctuate markedly and quickly, depending upon the number and length of remands and sentences.

40    All detainees were classified according to their risk profile. That classification was determined in accordance with a Classification Manual by reference to a number of factors, including the nature and extent of the detainee’s offences, their behaviour in detention, the risk of them escaping, the risk of them causing harm to themselves or to others, and the risk of them causing damage or disruption in the detention centre. All detainees were subject to regular behavioural assessments and classification reviews. These included assessments known as “SCATE assessments” and daily behaviour reports.

41    The more serious incidents in the detention centres were recorded in an “incident report” entered in the electronic “Integrated Offender Management System” (IOMS).

42    When reviewing a detainee’s progress and behaviour in the detention centre, the staff had access to the IOMS reports, the SCATE assessments, the daily behavioural reports as well as educational, medical and case manager reports.

43    Apart from the formal recording of classifications, the classification of detainees was indicated by the colour of the shirt they were given to wear. The classification structure, and the shirt colours assigned to each classification, were as follows:

44    Greater privileges (by way of greater freedoms and rewards) were given to those with lower security classifications, as an incentive for good behaviour. Mr Donald said, and I accept, that generally the “classification system works very well to reinforce and reward positive behaviours”, but that it worked better at Don Dale than at ASYDC.

45    The applicant’s classifications from 25 May 2011 until he ceased to be held in youth detention in August 2012 were as follows:

•    25 May 2011 to 8 June 2011 – Medium

•    8 June 2011 to 6 July 2011 – Low 1

•    6 July 2011 to 20 July 2011 – Low 2

•    20 July 2011 to 26 September 2011 – Low 1

•    26 September 2011 to 2 November 2011 – Medium

•    15 October 2011 – transfer from ASYDC to Don Dale

•    2 November 2011 to 6 December 2011 – Low 1

•    6 December 2011 to 26 December 2011 – Medium

•    26 December 2011 to 14 February 2012 – Maximum

•    14 February 2012 to 20 March 2012 – Medium

•    20 March 2012 to 18 April 2012 – Low 1

•    18 April 2012 to 20 June 2012 – Maximum

•    20 June 2012 to 11 July 2012 – Medium

•    11 July 2012 to 7 August 2012 – Low 1

The Applicant’s witnesses

46    The applicant gave evidence himself and led evidence from his grandmother, Ms Palmer, from Mr Peter Muir, and from a forensic psychologist, Mr Stephen Ralph. Mr Muir gave evidence as an expert in matters concerning the detention of youths. The respondents challenged his expertise and it will be necessary to make findings on that topic.

The Applicant

47    The applicant was 25 years old at trial. He was educated to Year 7 level, and it seems that, before going into detention, he had ceased schooling during Year 8. His school reports indicate that the applicant had experienced difficulty in progressing through his education. However, Ms Palmer described the applicant as having been good at maths. The applicant also had some schooling while in detention. The Education Assessment Forms completed in the ASYDC for the period 27 April to 12 September 2011 record that the applicant’s attitude to his education was at times poor. I note that, in the report of 5 July 2011, the teacher reported that the applicant “is capable of a higher standard of academic performance but his lowered self-confidence causes him to give up rather than take risks”. The teacher also reported that “Marley can work at a year 10 academic standard within [Northern Territory Curriculum Framework] guidelines”. The extent to which the applicant continued schooling after September 2011 is unclear as an IOMS Report of 1 September 2011 records the applicant as having “decided to drop out of School”.

48    It is apparent that the applicant underwent some vocational education while in detention as an email from Mr B Clee, a YJO, on 28 June 2012 recorded that one of the reasons why the applicant wished at that time to return to Alice Springs was to complete “the Certificate 1 in Pastry and Baking, currently running through Charles Darwin Uni” at the ASYDC.

49    In May 2018, Mr Ralph assessed the applicant’s cognitive functioning using the Raven’s Standard Progressive Matrices, which he described as a test of observation and clear thinking. He reported that this measure placed the applicant in the category of “Grade IV – Definitely below average in intellectual capacity” and on the very cusp of “Grade V – Intellectually Impaired”.

50    Mr Ralph noted that the applicant is unable to read or write but did not say whether that is what the applicant told him, or whether it was based on testing. In either event, it is contradicted by the evidence at trial. The documentary evidence included letters handwritten and signed by the applicant while in detention and, in evidence-in-chief, he confirmed that he was able to read them (although on one occasion he accepted counsel’s invitation to read the document for him). Later, when asked directly about his reading ability, the applicant said that he was “not that good at reading” and described himself as a “slow reader”.

51    The matters mentioned above, and my own observation and assessment of the applicant when giving evidence, including when he was asked to read documents, suggest that the categorisation of the applicant as close to borderline intellectually impaired may underestimate his cognitive capacity.

52    Nevertheless, I accept that the applicant has had limited education and that he has some cognitive limitations. I have taken these into account when assessing his evidence.

53    Although the applicant’s criminal record suggests that he is no stranger to courtrooms, it was evident that he did not find giving evidence easy or pleasant. For much of his evidence he had a subdued demeanour, and at times a taciturnity. Mr Donald, whose evidence I regarded as honest and reliable, also described the applicant as “often taciturn” in his dealings with him. There were numerous occasions in his evidence when the applicant said that he had no memory of matters relating directly to the incidents in issue.

54    I have endeavoured to keep in mind that there may be multiple reasons for the applicant’s subdued manner, taciturnity, and statements of poor memory, including cognitive limitations. I also take into account the applicant’s cultural background.

55    Much of the applicant’s evidence was inconsistent with the contemporaneous records. It is of course possible that it is those records which are unreliable, but I saw no reason to suppose that that was so. The applicant’s evidence was also inconsistent in several respects with the evidence of others, whose evidence I did consider reliable.

56    It was put to the applicant more than once that he was fabricating matters in his evidence with a view to advancing his interests in the litigation. He denied that that was so. Although there are significant sections of the applicant’s evidence which I do not think are reliable, I did not have the impression at trial that he was intentionally giving dishonest evidence or dissembling. Amongst other things, there were several occasions when he made concessions which were seemingly against interest and several occasions when he did not seek to embellish his account, even though the opportunity to do so was open. My impression at the conclusion of the trial was that, on some topics, the applicant had become convinced of the unfairness of his treatment while in detention, and that that conviction had resulted in embellishments in his recollection. In addition, I had the impression that, with respect to some matters, the applicant has “locked into” a version of events, despite its implausibility or inconsistency with contemporaneous records. These impressions have been confirmed on my subsequent reading and re-reading of the transcript.

57    The consequence is that, generally, I am unwilling to make findings based on an acceptance of the evidence of the applicant when that evidence is inconsistent with the contemporaneous documents and, in some instances, inconsistent with the evidence of others. That in turn means that there are significant parts of the applicant’s evidence which I do not accept.

Ms Palmer

58    The applicant’s grandmother (Ms Palmer) is an impressive person and was in many respects a sound witness. It was very evident that she has a strong sense of the value of family and of the importance of the applicant’s Aboriginal identity. Ms Palmer has obviously been a significant person in the applicant’s upbringing and has sought to instil in him the values of her family and Aboriginal identity and culture.

59    Throughout the applicant’s periods in detention, Mrs Palmer visited him regularly, weekly when he was in Alice Springs, and, from time to time, making the long return journey from Alice Springs to Darwin to do so when he was in Don Dale. She was influential in having the applicant transferred back to ASYDC in July 2012. Ms Palmer has a firm conviction that the applicant has been treated unfairly while in detention and I felt that that conviction influenced her evidence. For reasons to be given later, including the fact that the applicant had on some topics misled his grandmother about his own behaviour while in detention, there are some respects in which Ms Palmer’s conviction is unfounded. There were also some aspects of Ms Palmer’s evidence which I regarded as unreliable, and do not accept.

Mr Muir

60    Mr Muir was called to give evidence of an expert kind regarding the appropriate use of force and physical restraints in the youth detention environment. His academic qualifications are an Associate Diploma in Social Welfare obtained in 1982 from what is now the University of Western Sydney and a Bachelor of Arts from the Wollongong University obtained in 1989. He now conducts his own consultancy, specialising in youth justice, out-of-home care and child protection.

61    Between 1977 and 2012, Mr Muir was a member of the public service in New South Wales and from 1999 and 2008 occupied the position of Director Operations/Deputy Director General, Operations in the Department of Juvenile Justice. That position included responsibility for up to nine juvenile detention centres. Between 2008 and 2011, Mr Muir was the Director General/Chief Executive of Juvenile Justice and from 2011 and 2012 was the Assistant Director General (Service Delivery Improvement) for the Department of Family and Community Services in New South Wales.

62    Mr Muir acknowledged that he had never worked directly as a front line officer in a juvenile detention centre, had never worked in an adult prison and accepted that his involvement with youth detention had been at the executive management level.

63    During Mr Muir’s cross-examination, counsel for the respondent objected to the admissibility of the two reports containing Mr Muir’s opinions. The submission was that Mr Muir’s lack of front line experience in a juvenile detention centre meant that he was not qualified by study, training or experience, to express the opinions which he did in the reports. I rejected that submission noting, amongst other things, that the objection was made after the reports had been received into evidence without any objection to Mr Muir’s expertise to express the opinions they contained. In any event, it was evident that Mr Muir does have expertise acquired by experience. This includes his experience in the positions mentioned above and his experience in overseeing the design of training concerning the use of force in a youth detention environment, setting the parameters for, and reviewing, the materials prepared by his subordinates on the topic, and overseeing its implementation and integration into the training of front line officers. I accept that, by reason of his role in managing the large juvenile detention system in New South Wales, Mr Muir has acquired some expertise in relation to the use of force in the juvenile detention environment. His opinions, like those of any other expert, should be assessed taking into account the nature and extent of the expertise which he has acquired.

Mr Ralph

64    I will refer to Mr Ralph’s evidence later in these reasons.

The respondents’ witnesses

65    The respondents led evidence from 17 witnesses. These were:

    Mr Kenneth Middlebrook, the Executive Director of Correctional Services in the Northern Territory until 4 September 2012, and then the Commissioner of Correctional Services;

    Mr John Fattore, who between 11 January 2010 and 28 October 2011 was the General Manager of Youth Detention based at Don Dale and, in that period, the Superintendent of both Don Dale and ASYDC. Since October 2011, Mr Fattore has been the General Manager of Community Corrections in Northern Territory Correctional Services;

    Mr Philip Brown, who from 2010 until 2012 was the Acting Deputy Director of Operations for both Corrections and Juvenile Justice in the Territory;

    Mr Michael Yaxley, who from October 2009 until 28 August 2013 held the position of Assistant General Manager of Youth Detention in the Territory. In 2011, Mr Yaxley acted as General Manager of Youth Detention on several occasions when Mr Fattore was unavailable, and he acted continuously in that position from 31 October 2011 until 19 November 2012. On 31 October 2011, he succeeded Mr Fattore as Superintendent of Don Dale and ASYDC;

    Dr Christine Connors, the General Manager, Darwin Region and Strategic Primary Health Care Branch in the Top End Health Service (TEHS);

    Mr Gregory Donald, who was employed as a Case Manager at Don Dale between 2011 and 2015;

    Mr Barrie Clee, who from 2009 was the officer in charge of the ASJHC and then the ASYDC, but who performed duties at Don Dale from time to time;

    Mr Andrew McAllan, who in 2011 and 2012 worked as a YJO at ASJHC and ASYDC;

    Mr Randall Edwards, who from August 2011 worked as a YJO at Don Dale;

    Ms Julie Auton, who from April 2008 until January 2012 was a Chief Prison Officer at DCC, and from January 2012 a YJO at Don Dale;

    Mr Kalia Mangawai, who from late 2011 worked at Don Dale as a YJO;

    Mr Michael Hall, who has been a Senior Corrections Officer at DCC since January 2004;

    Mr Andrew Nicol, who has been a Corrections Officer with the Territory Department of Corrections since June 2010 (and since 2016 a Senior Correctional Officer);

    Mr Jacob Bonson, who has been a Corrections Officer with Northern Territory Corrections since July 1999;

    Mr Brian Leibhardt, a Corrections Officer at the DCC;

    Mr Nicholas Irwin, who has been a Corrections Officer with Northern Territory Corrections since 2005; and

    Ms Maria Pikoulos, a solicitor in the office of the Solicitor for the Northern Territory.

66    Part of the evidence in chief of Mr Fattore, Mr Yaxley, Mr Donald, Dr Connors and Mr Bonson, being their evidence on background and contextual matters, was provided by way of affidavit. Most of their evidence concerning the particular events and circumstances on which the applicant based his claims was given orally. Mr Leibhardt and Ms Pikoulos were not required to attend for cross-examination on their affidavits.

67    In addition, the Territory led expert evidence from two witnesses:

    Dr Gosia Wojnarowska, a Forensic Psychiatrist; and

    Mr Paul Conway, who has expertise in the management of youths in detention centres.

68    Before addressing the applicant’s particular claims, it is appropriate to address the meaning of the “isolation” to which s 153(5) refers, as this relates to more than one of the applicant’s claims.

The “isolation” to which s 153(5) refers

69    The terms of s 153(5) are set out in these reasons, at [26]. It was part of the YJ Act at all times material to these proceedings.

70    Division 8 of the Regulations as in force at material times had the heading “Management of detainees”. Regulation 72(1) in Div 8 provides that a detainee must not be isolated in a cell except under s 153(5) of the YJ Act. Its effect is that s 153(5) is to be regarded as stating exhaustively the circumstances in which a superintendent may isolate a detainee in a cell.

71    Regulation 72 imposes obligations on superintendents with respect to detainees who are isolated:

…

(2)    If a detainee is isolated:

(a)    the detainee must be continuously monitored by closed-circuit television or physical observation by a member of staff; and

(b)    written observations by a member of staff, including the date, time and name of the member of staff, must be recorded at intervals not exceeding 15 minutes.

(3)    The Superintendent must keep a journal recording:

  (a)    the date and time a detainee is isolated; and

  (b)    the name of the detainee; and

  (c)    the reason why the detainee was isolated; and

(d)    the time the on-call person in charge was notified and that person's name; and

(e)    the observations of a member of staff at intervals not exceeding 15 minutes and the name of the member of staff making the observation; and

  (f)    the date and time of exercise periods and ablutions; and

(g)    details of any approval by the Director for isolation exceeding 24 hours; and

  (h)    the date and time the detainee is released from the isolation cell.

72    Taken in combination, s 153(5) and reg 72 reflect an understanding that periods of isolation may be detrimental for youths in detention and are times of particular vulnerability.

73    Counsel for the respondents submitted that the isolation to which s 153(5) refers is the “complete inability for any kind of interaction between the detainees” with the consequence that, provided that the detainee had the ability to have interaction of some kind, there was no isolation.

74    The term “isolated” and its cognates are not defined in the YJ Act. The relevant meaning of “isolate” in the Macquarie Dictionary is:

to set or place apart; detach or separate so as to be alone.

That meaning and the composite term in s 153(5) “isolated from other detainees” suggests that the term is used in the sense of keeping the detainee separate or apart from other detainees. This implies that there must be “other detainees” from whom the detainee may be isolated, so that a detainee who is the sole occupant of a detention centre will not be isolated in the requisite sense: Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328; Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120, (2011) 80 NSWLR 296 at [81]. It may also be pertinent that the term “other detainees” is not prefaced by an adjective such as “some” or “all”.

75    Although it is common for legislation or regulations concerning imprisonment or detention to limit the circumstances in which a prisoner/detainee may be held separately from other prisoners, there seems to have been relatively little judicial consideration of the term “isolate” or its cognates in this context.

76    Rule 43 of the Prison Rules 1964 (UK) made pursuant to the Prison Act 1952 (UK) (Prison Act UK) was a counterpart of s 153(5). It provided (relevantly):

(1)    Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner’s removal from association accordingly.

(2)    A prisoner shall not be removed under this Rule for a period of more than 24 hours without the authority of a member of the board of visitors, or the Secretary of State.

…

In Williams v Home Office (No 2) [1981] 1 All ER 1211, Tudor Evans J regarded it as clear that r 43 provides an administrative power “to remove a prisoner wholly or in part from association with other prisoners”, at 1228.

77    In Bromley v Dawes (1983) 34 SASR 73 at 78, White J said of the term “separately confined”:

Separation means separation and no more. It has its origins in old legislation. Cf. the United Kingdom Act, 28 & 29 Vict. Cap. 126 s 17, separation of men from women, debtors from criminals, specially punished prisoners from ordinary prisoners, children from adults and the like.

78    In Sandery v South Australia (1987) 48 SASR 500, Olsson J said of the power in s 36 of the Correctional Services Act 1982 (SA) to “segregate” a remand prisoner that segregation “could, in practice, range from solitary confinement of a single prisoner to a separate confinement of a group of prisoners”, at 509.

79    In Fricker v Dawes (1992) 57 SASR 494, one of the issues was whether the plaintiff had been kept, unlawfully, in solitary confinement. In rejecting that claim, Mullighan J said:

[T]he evidence does not disclose that the plaintiff has been kept in solitary confinement. Apart from the periods when he was the subject of segregation and separation, he has been permitted to mix with other prisoners in the Division, although not all of them. Some prisoners, such as protectees, have been kept in an isolated group for reasons of their safety. The plaintiff has not been in association with them. From time to time he has been kept away from other prisoners for reasons of security. On occasions he has exercised alone, but in the main he has associated with other prisoners in the Division when he has been out of his cell. He has enjoyed various benefits and privileges, even though to a lesser extent than prisoners in B Division. His incarceration cannot be described as solitary confinement even though his association with other prisoners is curtailed due to the length of time he spends in his cell.

80    As in all cases of statutory construction, s 153(5) should be construed by reference to its text, context and purpose – see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 and 408 in which Brennan CJ, Dawson, Toohey and Gummow JJ said:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) use as ‘context’ in its wider sense to include such things as the existing state of the law and mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended remedy.

(Citation omitted)

81    In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [37], Gageler J, after referring to the passage in CIC Insurance v Bankstown Football Club just quoted, said:

… The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

(Citation omitted)

82    Consideration of context is important in the present case given that s 153(5) operates in the practical environment of a detention centre and with respect to the detention and well-being of youths, being persons under the age of 18 years – see s 6 of the YJ Act.

83    With limited exceptions, neither the YJ Act nor the Regulations in force at material times contain provisions with respect to the placement of detainees within a detention centre. The exceptions are s 153(5) and reg 72 with respect to isolation, s 154 with respect to the transfer of a detainee to an adult prison, and s 162 and Div 3 of Pt 5 of the Regulations with respect to at-risk detainees. It seems that, subject to these considerations and the implied condition of reasonableness, superintendents have a discretion as to the appropriate placement of detainees within the detention centre.

84    The evident purpose of s 153(5) is to limit the circumstances in which youths in detention will be deprived, at least involuntarily, of contact with, and the company of, other detainees and thereby to address a vulnerability to which they are likely to be subject. As indicated, it can be taken to reflect a legislative recognition that the contact and companionship of others is likely to be beneficial to the mental well-being of the young people in detention, by ensuring that they will have access to the reassurance, solace and support which their fellow detainees can provide.

85    Some features of s 153(5) may be noted. It is expressed in terms indicating the vesting of a power in superintendents, albeit a power which is subject to some qualifications. Putting reg 72(1) to one side, it is probable that, even absent s 153(5), the functions and powers of superintendents permitted the isolation of detainees – see s 151(2) and (3) and s 152(1). That being so, s 153(5) is more naturally to be understood as imposing a fetter on the superintendent’s power, by limiting the purposes for which a detainee may be isolated and the period for which he or she may be so isolated to the protection of the safety of another or for the promotion or maintenance of the good order or security of the detention centre. The latter expression is no doubt to be construed broadly but it does have limits.

86    Section 153(5) does not use the term “solitary confinement” which, on its face, has different connotations.

87    Taken at face value, s 153(5), in combination with reg 72(1), could be understood as precluding a superintendent from permitting a detainee to sleep alone in a room as a privilege, for comfort, to facilitate sleeping, to accommodate a detainee’s wish to be alone, to inhibit the spread of infectious diseases or when the gender or spread of ages of detainees make it appropriate for one detainee to sleep separately.

88    However, s 153(5) forms part of a section with the heading “Discipline”. Section 55(2) of the Interpretation Act 1978 (NT) has the effect that a heading to a section in an Act does not form part of an Act unless (relevantly) the Act was enacted after 1 July 2006. As the YJ Act received assent on 22 September 2005, the heading to s 153 is not to be treated as part of the YJ Act. However, this does not mean that the heading may not be considered in construing s 153(5) as, being part of the YJ Act when it was enacted, it forms part of the extrinsic material to which regard may be properly had: see Pearce DC, Statutory Interpretation in Australia, 9th Edition, LexisNexis Butterworths, 2014 at [4.59] and [4.65]. In any event, the subject matter of s 153 is aspects of the maintenance of discipline within a detention centre. That makes it natural to understand s 153(5) as imposing a fetter on the power of superintendents to isolate detainees for disciplinary purposes, so as to confine the exercise of the power (broadly speaking) to the purposes of maintaining safety, good order and security in the detention centre.

89    In JB v NT, Southwood J and Graham AJ (with whom Riley AJ agreed) said, at [123], that s 153(4) and (5) of the YJ Act are not concerned with discipline but had been enacted to ensure that superintendents do not evade the strict approach to discipline by using those powers to inflict a de facto punishment upon a detainee. If by this, their Honours meant that s 153(4) and (5) do not qualify the actions which superintendents may take in maintaining discipline in a detention centre, I respectfully disagree. The word “however” with which s 153(4) commences is a strong indication that it is a qualification on s 153(3), which is itself a qualification of s 153(2). In context, it is natural to understand s 153(5) as qualifying superintendents’ powers with respect to discipline by indicating the particular purposes and periods for which a detainee may be kept in isolation. That is to say, superintendents may isolate a detainee only within the circumstances prescribed in s 153(5) but not otherwise as a disciplinary measure. Superintendents are not empowered to use isolation as a punishment in the maintenance of discipline generally: isolation must be for one or other of the purposes to which s 153(5) refers. Regulation 72 precludes isolation for any other purpose.

90    This seems consistent with a more general view that forms of solitary confinement should not be used for purposes of punishment: Farr v Corrective Services Commission (Qld) (1999) 109 A Crim R 153 at 157; Bromley v Dawes at 78.

91    Section 153(5) seems to speak to the power of a superintendent to impose isolation on a detainee. It may not be applicable to actions taken by the superintendent in response to a request from a detainee or, possibly, with the agreement of a detainee.

92    Section 153(5) should be understood as intended to operate in a context in which detainees, having been deprived involuntarily of their liberty, will necessarily be subject to some restrictions on their ability to intermingle and interact with each other as they choose. The ordinary routines and regimens of a detention centre will mean that that is so. By way of example, several witnesses referred to the nightly lockdowns in the detention centres. The Northern Territory legislature may be taken to have known, when enacting s 153(5), that these lockdowns, including the separation of detainees for sleeping, are an ordinary incident of detention centre routine. It may be taken to have known that some separation of detainees of different genders or different ages would at times be appropriate. It may be taken to have expected, for example, that if there was only one female detainee in a detention centre, she may necessarily have to be kept apart from other detainees for some part of each day. There may be other circumstances in the ordinary routine of a detention centre in which some separation of a detainee is to be expected.

93    These considerations lead me to conclude that isolation of a detainee from other detainees to which s 153(5) speaks is the act of a superintendent which, by the manner of confinement of the detainee, keeps the detainee separate and apart from other detainees so as to preclude contract or interaction with other detainees. This means that a detainee will be isolated in the relevant sense when precluded from participation in detention centre activities even if the detainee can maintain some level of communication with some detainees.

94    Ordinarily, isolation in the sense just explained will occur when the detainee is confined to a particular room or cell and thereby prevented from intermingling or interacting with other detainees in the general activities and routine of the detention centre. However, a detainee may be isolated from other detainees even when not confined to a cell. It is the nature and quality of the “separation” from other detainees which is the critical matter, not the place where that separation occurs. So a detainee may still be isolated even when in an area larger than a cell.

95    Accordingly, I do not accept the submission of counsel for the respondents that isolation involves “the complete inability for any kind of interaction between detainees”. Some degree of communication with other detainees will not be inconsistent with isolation if the detainee is otherwise kept separate and apart from them. Depending on the circumstances, the preclusion of a detainee from contact with other detainees in the usual activities within the detention centre may be an isolation. A detainee’s ability to communicate with another detainee will not necessarily mean that the circumstances in which the detainee is held do not constitute isolation. Nor will the fact that one other detainee is accommodated in a shared cell, if the circumstances otherwise constitute “isolation”.

96    It will be a question of fact whether particular limitations and restrictions imposed in a given case constitute isolation for the purposes of s 153(5).

97    This is the understanding of the term “isolated from other detainees” which I will apply in these reasons.

The Alice Springs Youth Detention Centre

98    Before addressing the applicant’s particular claims, it is convenient to make some findings concerning the ASYDC and Don Dale as they were in 2011 and 2012.

99    The ASYDC was opened on 27 March 2011. Before that time, youth detainees who had imminent court appearances in Alice Springs had been held temporarily in the ASYHC. Those detainees who were to be held for more than a few days were usually transferred to Don Dale.

100    The ASYDC is located within the grounds of the Alice Springs Correctional Centre (ASCC), the prison for adult prisoners in Alice Springs. It was established by modifying the accommodation which had been used to accommodate low risk adult prisoners.

101    At the times relevant in these proceedings, the ASYDC comprised two wings, known as the “East Wing” and the “West Wing”. The two wings were separated by a classroom, a living area, a kitchen, a room for teaching staff and a central corridor. The East Wing contained most of the rooms used for the accommodation of detainees. These included two “dormitories” which could, when required, accommodate up to four detainees each. One of these dormitories was known as “Room 12” or “Cell 12”. There were four other rooms in the East Wing which were intended for use by a single occupant but in which a second detainee could be accommodated by putting a mattress on the floor.

102    The West Wing contained the office, medical and administrative facilities. It also had two rooms, Room 2 and Room 5, which could be used for the accommodation of detainees. In one version of the floor plan for the ASYDC, Room 2 is described as an “Isolation” room and Room 5 is described as an “At Risk” room. In the pro-forma documents used for the shift reports in ASYDC, Room 5 was described as “Isolation Room”. A recreation yard was located on the northern side of the building.

103    Mr Clee said, and I accept, that Room 5 was a multi-purpose room in that it was used to accommodate detainees who were “at risk”, to accommodate new admittees, for accommodation when ASYDC was full, and for the “placement” of detainees. In effect, “placement” was the isolation of a detainee, usually following an incident involving serious conduct by the detainee. A detainee in placement was kept in the Room and was not permitted to engage in the usual activities in the ASYDC or to mingle with other detainees. Detainees who were not on “placement”, but who were accommodated in Room 5 when the numbers in the ASYDC made that necessary, engaged in the same activities as did all other detainees.

104    Unlike the other accommodation rooms, Rooms 2 and 5 were air conditioned but they did not have fixed furniture. Beds were created by piling two or three mattresses on top of each other.

105    ASYDC was used for the detention of both male and female detainees.

106    The accounts in the evidence of the capacity of the ASYDC varied and I am satisfied that, to an extent, it had “elastic” walls. Mr Yaxley said, and I accept, that ASYDC had been notionally designed to accommodate 16 detainees. He considered, however, that it could comfortably accommodate only 10-12 detainees. Above that number, more room sharing was required than was appropriate which, as indicated, was achieved by putting mattresses on the floor.

107    A number of witnesses said that it was easier to operate ASYDC with smaller numbers than when it had 16 or more. This was because of the limited size of the shower, toilet, recreation and eating areas. Mr Clee said that 16 detainees could not be seated comfortably in the dining area at any one time. In addition, the Education Department of the Northern Territory, which provided teaching in the ASYDC, had a policy that, by reason of the size of the classroom, there should be no more than 10 students in it at any one time. That meant that classes had to be split. Although the evidence about this was not specific, my impression was that that policy was not always enforced.

The Don Dale Detention Centre

108    Don Dale was located in Darwin in close proximity to the DCC. It comprised two sections known as the “Main Centre” and the “Medium Section” respectively. The Main Centre contained nine accommodation rooms capable of housing two or three detainees in each. The Medium Section contained two large dormitory style rooms designed to accommodate up to 6 detainees in each, plus six single rooms which were generally allocated to detainees who had Low 2 and Open classifications.

109    The Main Centre also had two “At Risk” rooms which were airconditioned and monitored by CCTV and an area of high security accommodation which included the Behavioural Management Unit (the BMU), comprising five high security cells. The facilities at Don Dale included a basketball court, a swimming pool (which was filled in after 26 December 2011), a music room (which was converted to accommodation in mid-2012), and education facilities.

110    The Medium Section contained a large recreation room containing video games, a television, a pinball machine and table tennis table, facilities for woodwork and metal work and, from mid-2012, a music room. Unlike ASYDC, Don Dale also had a large oval which could be used for sporting purposes.

111    It seemed to be non-contentious that the activities, services and programs available to detainees in Don Dale were superior to those at ASYDC. Mr Yaxley referred, amongst other things, to a vocational technical studies program using the woodwork and metal work facilities, and to the swimming and the sporting facilities. He said, and I accept:

[30]    The better facilities at Don Dale gave the detainees better outlets for their energy and greater opportunities for rehabilitation. The better facilities also allowed for the classification system (discussed further below) to operate more effectively. Detainees achieving a low enough classification were accommodated in the Medium Section where they were afforded greater freedom and had access to the recreation room and oval. This was a significant incentive to behave.

112    Mr Fattore deposed that ASYDC was less suitable than Don Dale for the accommodation of long term detainees because it was smaller, less secure and afforded them less recreational, rehabilitative and vocational opportunities. He also noted that detainees who were transferred from ASYDC to Don Dale generally remained there until their release, unless court hearings or some other reason warranted their return to Alice Springs.

The 7-8 April 2011 false imprisonment claim

Overview of the applicant’s claim

113    In April 2011, the applicant was held at the ASYDC. In the final version of his statement of claim (the 6SC), he alleges that, after lockdown on the night of either 7 or 8 April 2011, he was removed from his room by two YJOs and held in an “isolation cell” overnight. The applicant pleads that that placement was not authorised under s 153(5) or under any other provision of the YJ Act or the Regulations, was undertaken for the purposes of punishment, and that it constituted false imprisonment.

114    Although not stated expressly, this claim seemed to be made against both respondents, with the claim against the Superintendent made in the alternative to the claim against the Territory.

Overview of the respondents’ filed defence

115    The respondents admitted that the applicant was removed from his room on the night of 8 April 2011 and placed in another room overnight and pleaded that this was done in order to facilitate a search for a mobile telephone in the possession of the applicant. They denied the contraventions of the YJ Act alleged by the applicant, in particular, that the overnight placement constituted “isolation” within the meaning of s 153(5) of the YJ Act and said that it was, in any event, authorised by s 151(3)(c) and 152(1) of the YJ Act.

The evidence as to the circumstances leading to the placement

116    The evidence indicates that the events in question occurred on the night of Thursday, 7 April 2011. The Court heard evidence about those events from three witnesses. These were the applicant, Mr Clee who at the time was the officer in charge of the ASYDC, and Mr McAllan, who was a YJO at ASYDC.

117    It was common ground that detainees were not permitted to have a mobile phone in their cells, at least without permission. Mr Middlebrook said that the potential uses of mobile phones in detention centre environments meant that they were considered “serious contraband”. While I accept Mr Middlebrook’s evidence, I also take into account the evidence of Mr Clee who was more of a front line officer than Mr Middlebrook that the incident involving the mobile phone on 7 April had been relatively minor.

118    The applicant said that the nightly lockdown at ASYDC generally finished at about 7 am; that detainees would then shower and have breakfast; that Monday to Friday the detainees attended school from 9 am to 3 pm (all in one classroom); and that, in free periods, detainees could play sport, sit around, or watch TV.

119    On the night of 7 April 2011, the applicant and two other detainees (Mr Turner and Mr Kennedy) were accommodated in Room 12. They, and in particular the applicant and Mr Kennedy, were using a mobile phone. None of the three detainees had permission to have a mobile phone. For present purposes, it is not necessary to make detailed findings concerning the manner by which they came to have the phone.

120    In his evidence, the applicant said that the three detainees had been using the phone to listen to music. They had been unable to use it to make calls because of a lack of credit.

121    Prison officers in the ASCC, who monitored the CCTV cameras in the ASYDC, observed the detainees using the mobile phone and, at about 9.45 pm, alerted Mr Clee. He was off duty at the time but attended ASYDC soon after. He and Mr McAllan went to Room 12 at about 10.10 pm. When they entered the room they asked for the mobile phone. There was a difference in the evidence as to what then occurred.

122    The applicant said that, in response to the officers’ question, he had pointed to the phone hanging on a fan fixed to a wall near the ceiling. It was on the charger making use of the power point near the fan. The applicant said that the two officers took the phone and “told us to pack our stuff up and took us down the back … [to] the back cells”. It was the applicant and Mr Kennedy who were relocated to the back cells.

123    The term “back cells” was commonly used at the ASYDC to refer to Rooms 2 and 5. The applicant described these cells as being approximately three metres by three/four metres, each with a blocked off window preventing light entering the cell, a steel door with an inspection aperture and, apart from a mattress and a pillow, as having no chair, television or a radio. He was alone in the cell (Room 5). Mr Kennedy was in Room 2. The applicant said that he had had difficulty sleeping that night, waking frequently and spending time walking up and down the cell. He said that he had lost count of how long he was in the isolation cell but was there “for a while” (with the implication being that it had been for more than one night). He had been aware at the time that Mr Kennedy was in the cell opposite him.

124    The applicant said that he had thought that he had been placed in the isolation cell because he had been caught with a mobile phone but he had not been told that by a YJO. Nor had he been told how long he would be kept in the isolation cell. He said that he had not wished to tell the YJOs how long he had had the phone or how he managed to get it into the cell because he didn’t wish to be “dobbing people in”.

125    The applicant acknowledged that, while in Room 5, he had tried to speak to Mr Kennedy in the cell opposite him. He did not accept that, on the morning of 8 April 2011, he had had breakfast and then gone to school, nor did he accept that on the night of 8 April 2011 he had been accommodated in a room with Mr Turner. He said that he had remained in the isolation cell by himself. Nevertheless, as already noted, the applicant’s claim of false imprisonment concerned a single night only.

126    The evidence of Mr Clee and Mr McAllan, who were called by the respondents, was generally similar. To an extent, that was unsurprising as both had refreshed their memory by reading the reports of the incident prepared by Mr McAllan in the early hours of 8 April 2011, as well as other documents.

127    Mr McAllan said, that on entering Room 12, Mr Clee had told the detainees that they had been observed using a mobile phone and charger and asked about them. Both the applicant and Mr Kennedy denied knowledge of these items. The two officers then took the applicant and Mr Kennedy (Mr Turner was asleep) to the West Wing. There, they carried out separate strip searches of each detainee, without finding either the phone or the charger. They then placed Mr Kennedy and the applicant in what Mr McAllan described as the “behaviour management units”, being Rooms 2 and 5 (although Mr McAllan was uncertain about the particular room in which each was placed).

128    Mr Clee and Mr McAllan then returned to Room 12 and asked Mr Turner about the location of the phone. He denied knowing its location. Mr Clee and Mr McAllan then conducted a thorough search of the room, in the course of which Mr McAllan located a mobile phone charger in a pillow case on the applicant’s bed. Mr Clee stood on a bed and located the phone behind the protective perspex shield of the CCTV camera. They then went back to the West Wing and spoke separately to the applicant and Mr Kennedy. Each gave different accounts of how they had come to be in possession of the mobile phone and each blamed the other.

129    Later that night (in fact in the early hours of Friday, 8 April), Mr McAllan made the reports of the incident from which he and Mr Clee refreshed their memories. Both were entered (at that time) into the IOMS. The incident report included the following details:

130    In the officer’s report, Mr McAllan included the following:

[OIC] Clee arrived at ASJDC at 22:10. SYW McAllan assisted OIC Clee with strip searches of Kennedy and Campbell however we found them not to be in possession of the phone. They both were then escorted to the Isolation Cells without force.

Clee and McAllan then returned to Cell 12 and questioned Detainee Jamal Turner about the phone and he stated that Kennedy had removed the phone from Detainee Campbell’s property and was using it. He said he didn’t know where it was. During the room search OIC Clee found the phone hidden behind the camera shield. We also discovered a charger for the phone hidden in a pillow case on Detainee Campbell’s bed.

Findings concerning the applicant’s placement in Room 5

131    I thought that both Mr Clee and Mr McAllan gave their evidence well. Each was clear and direct and did not seem to be embellishing or colouring his evidence.

132    Mr Clee said that, while the applicant was in ASYDC, he was at times “quite aggressive” but at other times “quite easy to talk to”. He also said that the applicant interacted well with some staff but not with others. I had the impression that Mr McAllan may have been one staff member with whom the applicant did not interact so well. This seemed to be reflected in Mr McAllan’s description of the applicant:

Look, Marley was one of the more challenging detainees to interact with, that we had in the Centre. Typically, Marley didn’t like to talk to officers, myself included, to any great degree. It seemed that Marley was typically doing one of three things in the Centre. He was either causing trouble, provoking someone else to cause trouble or he was shifting blame to someone else that he was involved in trouble himself. He wasn’t one of the most trustworthy detainees I ever came across.

133    I did not consider, however, that Mr McAllan allowed this assessment of the applicant to colour his evidence concerning the events of 7-8 April.

134    The evidence of Mr Clee and Mr McAllan concerning the events on the night of 7 April 2011 was consistent with the written report which Mr McAllan made in the early hours of 8 April 2011, at a time when the events must still have been fresh in his memory. There was no suggestion that Mr McAllan’s reports were concocted or for some other reason unreliable. It is true that Mr McAllan did not mention in his reports the enquiry made of the applicant as to the whereabouts of the mobile phone and the applicant’s denial of any knowledge. However, in both his reports he referred to the phone having been “hidden” behind the camera shield. I am satisfied that that is strongly suggestive that the phone was not in the location which the applicant claimed he had indicated to the two officers. Moreover, there was no apparent need for Mr Clee and Mr McAllan to have conducted the strip searches or to have returned to Room 12 to conduct the room search had the applicant voluntarily pointed out the location of the mobile phone and the charger.

135    Accordingly, I accept the accounts of Mr Clee and Mr McAllan as to the circumstances in which the mobile phone and charger were found and reject that of the applicant. This was one of the matters which caused me to have doubts about the applicant’s reliability generally.

136    However, the more critical questions in relation to this claim of the applicant concern his placement in Room 5, the purpose of that placement, and whether it amounted to a contravention of s 153(5) of the YJ Act. These questions give rise to three issues:

(1)    did the circumstances in which the applicant was held in Room 5 on the night of 7 April 2011 constitute “isolation” of the kind to which s 153(5) refers?

(2)    if so, did the Superintendent, by his subordinates Mr Clee and Mr McAllan, hold the opinion that the applicant should be isolated from other detainees:

(i)    to protect the safety of another person; or

(ii)    for the good order or security of the detention centre?

(3)    if each of these is answered in the affirmative, was the applicant isolated for more than 24 hours?

137    There is then a further issue, namely, whether the isolation of a detainee other than in accordance with the terms of s 153(5), may constitute the tort of false imprisonment? For reasons which will become apparent, it is not necessary to consider this issue in relation to the events on 7 and 8 April 2011.

Was the applicant isolated from other detainees?

138    I am satisfied that Mr Kennedy and the applicant were placed in Rooms 2 and 5 respectively at about 10.30 pm. Although the applicant does not complain that the period in which he was isolated was more than overnight, it is appropriate to make findings as to the circumstances which occurred on the morning of Friday, 8 April 2011.

139    The respondents’ case was that, although the applicant had continued to be accommodated in Room 5 for at least a few days, he had from the morning of Friday, 8 April continued to participate in mainstream activities in the ASYDC. For this purpose, the respondents relied on the evidence of Mr Clee and Mr McAllan and on the inferences to be drawn from documents.

140    Each of Mr Clee and Mr McAllan said that the applicant had not been in “isolation placement”, although the latter acknowledged that, by reason of being off shift on the morning of 8 April 2011, he did not know the time at which the applicant had been released from Room 5. Mr Clee said that he had not regarded the circumstances as warranting the isolation of either the applicant or Mr Kennedy, and that the applicant had not been treated in the manner of a detainee held in isolation.

141    The first document on which the respondent relied was the Incident Report completed by Mr McAllan on 8 April 2011 at 12.43 am, extracts of which have been set out above. Mr McAllan said that he had recorded “OIC Clee to consider further action” in the Incident Report because he knew that Mr Clee had not yet decided the action to be taken with respect to the applicant. I will record later the evidence of Mr Clee as to the action which would have been required had he decided to isolate the applicant. This document supports an inference that, at the time of its preparation, no decision with respect to the isolation of the applicant and Mr Kennedy had been made.

142    Secondly, the respondents relied on the shift reports. A shift report was made for each shift: the day shift which concluded at 2 pm; the afternoon shift which concluded at 10 pm; and the night shift which concluded at 6 am. Amongst other things, YJOs recorded in these reports the rooms in which the detainees were accommodated. Subject to the matter to be mentioned next, I consider that the inferences which can be reasonably drawn from the shift reports for the present purposes are limited. That is because the respondents did not tender the shift reports for the shift which concluded at 11 pm on 7 April 2011 or for any of the shifts on Friday, 8 April 2011. The shift reports for the day and afternoon shifts on Saturday, 9 April 2011 recorded the applicant as still being accommodated in Room 5, but the report for the night shift that day recorded him as accommodated in Room 12 with Mr Turner. That allows the inference to be drawn (which I do draw) that, at least by the night of Saturday, 9 April 2011, the applicant was no longer accommodated in Room 5.

143    The shift reports are completed on a pro-forma document which described Room 5 as “Isolation Room”. For the reasons already given, however, I accept that the mere fact that a detainee is accommodated in Room 5 does not necessarily mean that he/she is being isolated.

144    The failure of the respondents to tender the shift reports for the afternoon and night shifts on 7 April and for the three shifts on Friday, 8 April gives rise naturally to a concern about whether there had been some selectivity in the documents provided to the Court. However, Mr Clee said that he had been unable to find these reports, and, in the light of an objection from counsel for the applicants, the respondents’ counsel did not press his question asking Mr Clee to provide an explanation of why that was so. In that circumstance, it would not be appropriate to draw any inference adverse to the respondents on this issue, and the Court was not invited to do so.

145    The third document to which the respondents referred was the Detainee Behaviour Report for the applicant for the period 5-8 April 2011. In that report, the applicant’s behaviour for Friday, 8 April 2011 was described as “acceptable”. Mr McAllan, who completed the report for that day, recorded:

Marley’s day wasn’t too bad today however he is still long way from his best behaviour and attitude.

146    As is apparent, Mr McAllan made no record of the mobile phone incident. In his oral evidence, Mr McAllan explained that, by saying that he had completed the report at about 8 pm, before the incident had occurred. I am satisfied that Mr McAllan is mistaken about that as the mobile phone incident occurred on the evening of Thursday, 7 April 2011. Nevertheless, it seems improbable that Mr McAllan would have described the applicant in the terms set out had the applicant been isolated. That was the effect of Mr McAllan’s evidence. It was confirmed by Mr Clee who said that, had the applicant been placed in isolation, his behaviour and attitude should, in accordance with normal practice, have been recorded as “unacceptable”. Moreover, Mr McAllan did not mark the boxes on the pro-forma document which would indicate that the applicant had either been “separated” from other detainees or put in “room placement”. One or other of those boxes should have been marked had the applicant been isolated. Mr Clee said, and I accept, that a “room placement” occurred when staff thought it appropriate to place a detainee in a room for a short period, say 15-30 minutes, following an incident to give the detainee “time out on their own”. “Separation” on the other hand, occurred after more serious infractions. Mr Clee said, and again I accept, that “separation” is marked when a detainee has been placed in isolation. The absence of such a mark is accordingly an indication that the applicant was not regarded as being in isolation during 8 April.

147    For reasons unexplained in the evidence, the pro-forma Detainee Behaviour Reports for the applicant contain no entries for Saturday, 9 and Sunday, 10 April 2011.

148    Fourthly, the respondents produced the Detainee Behaviour Report for Mr Kennedy for the period 5-11 April 2011. This document did not record Mr Kennedy as having been in separation or room placement on Friday, 8 April 2011 but did for Saturday, 9 April. The comments concerning Mr Kennedy for Friday, 8 April 2011 were as follows:

Kennedy has not performed his rostered laundry duties for 4 days. His attitude is poor and he needs to lift his interaction and compliance with staff.

149    Mr Clee said, and I accept, that had Mr Kennedy been isolated, he would not have been able to do laundry and so there would have been no occasion for this comment. The respondents submitted that, if Mr Kennedy had not been in isolation on 8 April 2011, it could be inferred that nor had the applicant. Furthermore, Mr Kennedy is shown as having been isolated on 9 and 10 April 2011 and the comments referred specifically to him having been given “cell placement”. The inference from the documents to which I will refer next is that Mr Kennedy’s separation and “placement” on 8 April 2011 commenced after 5 pm that day. The respondents noted the absence of any corresponding entries for the applicant, contending that this too supported the inference that the applicant had not been in isolation on those days.

150    Next, the respondents drew attention to the officer’s report on Saturday, 9 April 2011 concerning Mr Kennedy’s conduct at about 5 pm that day. This report referred to misbehaviour by Mr Kennedy while playing cricket. His conduct included the throwing of a rock at the applicant. The report also recorded that Mr Kennedy was then placed in Room 5. Mr Clee said, and I accept, that the applicant could not have been outside playing cricket had he been in isolation. Further, Mr Kennedy could not have been given a room placement in Room 5 had the applicant been occupying that room. The respondents noted the absence of any documentation with respect to the applicant corresponding with the documents reporting Mr Kennedy’s “room placement” at 5 pm.

151    Finally, the respondents relied on the fact that Mr Clee had not prepared the documents which would have been required had the applicant been put on “placement” or “separation” in Room 5. The evidence indicated that these would have included completion of the “Isolation Room Placement Journal”, records of the monitoring of the applicant on 15 minute intervals in accordance with reg 72, as well as communications with Mr Yaxley.

152    In his final submissions, counsel for the applicant accepted that the isolation alleged by the applicant had ceased on the morning of 8 April 2011.

153    Having regard to these matters, I am satisfied that, although the applicant continued, after the morning of 8 April 2011, to be accommodated in Room 5, he was not kept in isolation for that day. Instead, after the conclusion of the lockdown on the morning of 8 April, he participated in activities in the ASYDC with the other detainees in the normal way. He was not kept separate from them nor precluded from interaction with them. The fact that the applicant resumed normal interactions on the morning of 8 April 2011 on the conclusion of the lockdown militates against the conclusion that his placement in Room 5 at about 10.30 pm on Thursday, 7 April 2011 constituted isolation for the purposes of s 153(5).

154    In summary, I am satisfied that the applicant was in Room 5 by himself from about 10.30 pm on the night of 7 April 2011 until the end of the nightly lockdown on the following morning. On the morning of 8 April 2011, the applicant resumed normal activities in the ASYDC and was not isolated. I doubt that the applicant can be regarded as having been isolated on the night of 7 April, but for the reasons which follow, it is not necessary to express a concluded view.

Was the applicant placed in Room 5 for a s 153(5) purpose?

155    Counsel for the applicant submitted that, while the initial transfer of the applicant to Room 5 may have been to facilitate the search for the mobile phone and charger or to undertake an investigation, those activities had been completed within a relatively short time. He submitted that the keeping of the applicant in Room 5 thereafter had been for a punitive purpose, which was not a purpose authorised by s 153(5).

156    Neither Mr Clee nor Mr McAllan had a clear memory of their purpose in placing Mr Kennedy and the applicant in Rooms 2 and 5. They referred variously to wishing to avoid the conflict between the applicant and Mr Kennedy which could arise from the detection of the mobile phone in Room 12 and to avoid collusion in the preparation of accounts of how they had come to be in possession of the phone.

157    I had the strong impression that Mr Clee in particular engaged in reconstruction on this issue. He said that “as far as I know … there was a bit of conflict between the three youths at the time and that it was decided then that … they were going to be separated off into separate rooms for the night”. He understood that the applicant had threatened Mr Kennedy but acknowledged that he had not himself heard the threat. Mr Clee went on to say that the three detainees “might have ended up fighting and injuring each other and – we run on a very small nightshift component of staff”. Mr Clee was not challenged in cross-examination about this evidence. Nor was it put to him that his purpose had been punitive.

158    Mr McAllan did not refer to threats between the applicant and Mr Kennedy. He gave the following evidence as to the purpose of the placement:

XXN:        And what was the purpose of placing them in those rooms?

A:    Well, the primary purpose was in case there was any angst between detainees. They had just been identified as having broken the rules of the centre, effectively, and so, if there was any angst between them, it kept a physical distance between them, so they couldn’t get into a physical altercation. It also served to dissuade them from concocting a story or threatening one another to present a particular story, and also, to assist in that process, we would typically cover the window of the door, and on this occasion, we did cover the window of the door in each room, so the detainees couldn’t see each other.

XXN:    And what’s the – or how did you cover the window of the door?

A:         With a sheet of A3 paper.

XXN:    And what’s the purpose of doing that?

A:         So they can’t see each other. So they can’t – there’s no visual intimidation. There’s also no – it also makes communicating and – and, again, colluding for a story more difficult.

159    There was other evidence in the trial indicating antipathy between the applicant and Mr Kennedy which provides some objective support for the officers’ concern to avoid conflict.

160    Although the evidence concerning the purpose of Mr Clee and Mr McAllan for the placement of the applicant in Room 5 at about 10.30 pm on 7 April 2011 was incomplete, I am satisfied that it was for the purpose of avoiding the conflict between the applicant and of Mr Kennedy which could be anticipated given the finding of the mobile phone and charger. That meant that the placement was for “the good order” of the ASYDC, within the meaning of s 153(5) of the YJ Act. Accordingly, had I found that the applicant’s placement in Room 5 for all or any of the period between 10.30 pm on 7 April and approximately 7 am on 8 April did constitute isolation, I would have found that it was authorised by s 153(5). I would also have found that the isolation was for a period of less than 24 hours.

Conclusion on the 7-8 April 2011 false imprisonment claim

161    This means that the applicant has not established the factual basis for his claim of false imprisonment with respect to his detention on night of 7 April 2011. That claim must be dismissed. It is not necessary to consider the other issues to which that claim gave rise.

Detention at Don Dale between mid-November and Christmas 2011

162    The applicant was transferred from ASYDC to Don Dale on 15 October 2011 and, with the exception of his imprisonment at DCC between 28 December 2011 and 2 January 2012 and a temporary transfer back to ASYDC in April 2012, was kept there until 9 July 2012. He was then transferred back to ASYDC and detained there until he turned 18, at which time he was transferred to ASCC.

163    The applicant pleaded that, on 14 October 2011, he had been induced to volunteer for transfer from ASYDC to Don Dale in order to solve overcrowding at ASYDC. He alleged that the detention officers at ASYDC had represented that:

(a)    the transfer would be for a period of two to four weeks, and that after that time he would be transferred back to ASYDC;

(b)    if there were no volunteers for transfer, those detainees serving the longest sentences would be transferred (the applicant knew that he was such a detainee); and

(c)    volunteering to transfer would assist his prospects of obtaining parole.

164    The applicant pleaded that he had requested retransfer to ASYDC in November 2011 but this had been refused. He alleged that Mr Yaxley had told him (it seems in November 2011) that he would not be transferred to ASYDC because:

(i)    he had been transferred to Don Dale because of behavioural issues; and

(ii)    he had first to achieve a lower security classification.

165    The applicant’s primary claim is that the failure to transfer him back to ASYDC by mid-November 2011 constituted a breach of the duty of care owed to him by the Territory or, in the alternative, by the Superintendent of Don Dale. He claims in the alternative that, by December 2011, the Territory and the Superintendent knew that he was distressed, frustrated and angry about his continued detention at Don Dale and that it was affecting his welfare. Although the form of the applicant’s pleading was not clear, his alternative claim seemed to be that the failure to transfer him, commencing in December 2011 and continuing until 9 July 2012 constituted a breach of the duty of care owed to him by the Superintendent of Don Dale.

166    The applicant claimed that the respondents’ breaches of the duty of care had resulted in his “false imprisonment” and “mental harm”. Although the form of the pleadings is curious, the applicant’s counsel said that the former was intended to be a plea of a form of negligent false imprisonment. The claim of “mental harm” was not particularised but at trial the applicant relied on Mr Ralph’s opinion that, in effect, he suffered from Post-Traumatic Stress Disorder (PTSD). I note that the matters on which Mr Ralph relied for his opinion did not include the fact that the applicant had been detained at Don Dale, rather than ASYDC, for an additional five weeks from 14 November 2011, when the other events commenced.

167    It is convenient to consider the applicant’s primary case separately from his alternative case. That is because account must be taken in the consideration of the latter case of events and incidents which occurred on and after 21 December 2011, some of which are the subject of other claims of the applicant. I will treat the primary case as relating to the failure to transfer the applicant bank to ASYDC in the period from mid-November to 21 December (although it is convenient to use the shorthand “Christmas 2011”) and the alternative case as encompassing the longer period.

168    The witnesses who gave evidence in relation to the applicant’s transfer to Don Dale and the keeping of him in Don Dale until Christmas 2011 were the applicant, his grandmother Ms Palmer, and the respondents’ witnesses Messrs Clee, Donald, Fattore, Brown and Yaxley. Before addressing the evidence, it is appropriate to refer to one further matter.

169    The Court was not provided with the remarks of Martin CJ when sentencing the applicant on 23 August 2011. However, the Warrant of Commitment for the applicant’s detention was in evidence. It was addressed:

To the Sheriff and Deputy Sheriffs, to all prison officers and to the superintendent of the Alice Springs Juvenile Detention Centre, Alice Springs in the Northern Territory.

Having recited the offence for which the applicant was sentenced and the terms of the sentence, the warrant continued:

YOU the said Sheriff and Deputy Sheriffs are ordered to deliver the offender to a prison officer, you the said prison officers are ordered to deliver the offender to the superintendent of the Don Dale Centre and you the said superintendent of that Centre are ordered to take the offender into your custody and keep the offender as provided for above.

170    As is apparent, the warrant required the applicant to be kept at Don Dale. However, it was not suggested in the trial that this had precluded the applicant from being kept at ASYDC. In particular, the respondents did not rely on the terms of the warrant as justification for the keeping of the applicant at Don Dale between November 2011 and July 2012.

The applicant’s account of his transfer to Don Dale in October 2011

171    Although the applicant did not claim that the respondents had committed any tort or breach of statutory duty in transferring him to Don Dale, it is appropriate to make findings about what occurred as it provides the factual setting for later events.

172    By reason of the retrospective commencement of the sentence imposed on the applicant on 23 August 2011, his non-parole period of 12 months was to expire on 21 November 2011. However, the applicant was informed on 13 October 2011 that his Parole Officer would recommend that consideration of parole be deferred for six months. The Parole Board agreed with that recommendation. The Minute of the Parole Board’s resolution on 19 October 2011 (four days after the applicant’s transfer to Don Dale) states:

The Board agreed with the recommendation to defer for 6 months to allow for the youth to demonstrate he can successfully obtain a low security rating in detention and his behaviour improves. Secretary to write letter to CAALAS and parents advising of such.

173    The applicant said that two detention officers, Mr Clee and Mr Tasker, had addressed a meeting of all the detainees in ASYDC on 14 October 2011; they had told the detainees that ASYDC was too full and that volunteers for transfer to Don Dale were sought; and that the transfers would be for two to four weeks until releases from ASYDC reduced the overcrowding. No one had volunteered. Mr Tasker then said that, if there were no volunteers, the detainees with the longest sentences would be transferred. He had looked towards the applicant as he said this. The applicant said that he understood this would mean that he would be transferred as, at the time, he had the longest sentence of all the detainees in ASYDC. He then volunteered. He made that decision even though he was concerned that it would mean that he would miss the twice weekly visits from members of his family.

174    In cross-examination, the applicant said that one of the reasons he had agreed to transfer to Don Dale was that the overcrowding in ASYDC made it uncomfortable. He also said that there had not been a promise that the transfer would be for only two to four weeks and that he had understood that, depending on the numbers in ASYDC, the period could be longer. He maintained, however, that nothing had been said to indicate that his return would be dependent on his behaviour.

175    As indicated, the applicant was transferred to Don Dale on 15 October 2011.

The respondents’ account of the applicant’s transfer to Don Dale

176    Mr Clee’s evidence that, as at 14 October 2011, the ASYDC was overcrowded was confirmed by the Daily Census Record which showed that 20 detainees (all male) were held in ASYDC that night. This was four more than the nominal capacity of the ASYDC and well over its optimal capacity, to which I referred earlier. Most of the detainees were on remand but three, including the applicant, were serving sentences.

177    Mr Clee had no recollection of the meeting on 14 October 2011. He said that it was not uncommon for meetings of that kind to be held on an ad hoc basis when ASYDC became overcrowded; for detainees to be invited to volunteer to transfer to Don Dale; and for him to provide the Superintendent with a list of recommended transferees. Mr Clee said that, in making his recommendations, he took into account a number of factors, including the length of a detainee’s sentence; the desirability of avoiding the expense of bringing a detainee back to Alice Springs for future court appearances; security considerations (as Don Dale was much more secure than ASYDC); and the greater availability of programs for detainees at Don Dale.

178    Mr Clee said that telling the detainees that volunteers would be at Don Dale for a limited period, or for a few weeks as claimed by the applicant, was not the kind of thing he himself would have said. He also said that the applicant’s behaviour, as recorded in the ASYDC records, made it appropriate for him to be considered for transfer to Don Dale and denied that the applicant’s Aboriginal ethnicity and heritage had played any part in the decision. He noted that every one of the 20 detainees in ASYDC at the time was Aboriginal.

179    I will refer shortly to an email which Mr Clee wrote on 13 November 2011 in which he disputed that the applicant had ever been told that he would be returning from Don Dale to ASYDC in about four weeks’ time. The applicant had made that claim in a memo to Mr Yaxley on 11 November 2011.

180    In addition to Mr Clee’s evidence, the respondents relied on inferences to be drawn from contemporaneous emails relating to the applicant’s transfer to Don Dale:

    14 October 2011 at 8.10 am – Mr Tasker to Ms Davis and Mr Fattore and cc’d to Mr Yaxley

Hi Deb

Can you please look into the Flight availabilities for Detainee Escorts to Don Dale. It is likely that we may have to transfer some Detainees to DRN due high numbers here.

Detainees G Kennedy, M Campbell, [redacted], [redacted] have all expressed an interest [in] going to DRN.

Shall advise during the course of the day pending court appearance.

    14 October 2011 at 8.23 am – Mr Fattore to Ms Davis, Mr Tasker and Mr Clements and cc’d to Mr Yaxley

Hi All,

We have 9 in court today and could lose up to five, I would recommend no more than two transfers be organised at this stage with further planned after we know the court outcomes.

Deb and Derek please work out who will be travelling and when and liaise with Anthony Clements regarding staff required from this end.

…

    14 October 2011 at 11.38 am – Ms Tanya Blakemore (a Senior Case Worker) to various persons including Mr Tasker, Mr Fattore and Mr Yaxley

Hi everyone,

I have just spoken with Derek [Tasker] re: transfer of Marley Campbell. Derek stated that Marley is keen to come up to Darwin. Marley was on the telephone to his mother while I was speaking with Derek. Derek spoke with Marley’s mother who stated that it would make her sad but if Marley wanted to go then she was ok with this.

…

    14 October 2011 at 11.42 am – Mr Tasker to Ms Blakemore, Mr Fattore, Mr Yaxley and others

Hi all

As Marley is being transferred to the DDC, Marley’s family has been approved to visit him this evening at approx 1700.

181    Mr Fattore said (and I accept) that he used the expression “I would recommend” in his email of 14 October 2011 as a means of conveying his approval.

182    Ms Wallace (a Case Worker) also recorded in her notes for 14 October 2011:

Marley has recently indicated he would like to be transferred to DDC. Due to the high numbers of detainees at ASJDC it was agreed Marley would be transferred tomorrow. Marley spoke with his family on [the] phone from the Case worker’s office and they will come and visit him tonight.

183    Mr Fattore accepted that he had probably discussed with Mr Clee or Mr Tasker the applicant’s transfer to Don Dale, but said (and I accept) that he had no recollection of doing so. His evidence about the circumstances in which transfers generally occurred was broadly similar to that of Mr Clee.

184    Mr Yaxley did not have any recollection of being involved personally in the decision regarding the transfer of the applicant to Don Dale. Apart from his having been copied in on the emails set out above, there is no evidence that he was so involved. Mr Yaxley’s evidence about transfers generally was again broadly the same as that of Mr Clee and Mr Fattore.

The absence of evidence from Derek Tasker

185    Neither party adduced evidence from Mr Tasker, who was an experienced SYO. Mr Tasker is no longer employed by the Territory Government but I accept that it was more natural for the Territory, rather than the applicant, to have called him to give evidence.

186    Ms Pikoulos, the solicitor with the conduct of the matter on behalf of the respondents, deposed to a conversation she had had with Mr Tasker in November 2018 in relation to his giving evidence. That discussion, together with information she had relating to other events, had led her to conclude that the potential for adverse mental health consequences for Mr Tasker made it inappropriate for her to contact him again with respect to the giving of evidence, and she had not done so.

187    That evidence of Ms Pikoulos was not challenged and I accept it. Accordingly, it is not appropriate to draw any inference adverse to the Territory from its failure to adduce evidence from Mr Tasker. Counsel for the applicant did not submit to the contrary.

Findings regarding the transfer from ASYDC to Don Dale

188    Counsel for the applicant accepted that the Superintendent had the power to transfer detainees from one detention centre to another, although he submitted that decisions about transfers had to be made in accordance with the “principles” evident in the YJ Act.

189    I am satisfied that the immediate reason for the applicant’s transfer from ASYDC to Don Dale was the overcrowding at the ASYDC. In the context of the overcrowding, the applicant was an obvious detainee to be transferred, given that he had already been sentenced, had no upcoming court appearances in Alice Springs; had a significant period of his sentence yet to be served; and it was known that his parole officer was recommending that consideration of his parole be deferred. The greater security and greater opportunity for worthwhile activities at Don Dale also made it more appropriate.

190    The latter was an important consideration as the IOMS contains eight reports of incidents of misbehaviour by the applicant in the period from 18 August 2011 to 14 October 2011. One of these incidents, which occurred on 8 October 2011, was particularly serious as the applicant had struck a YJO, Mr Garoni, in the face more than once. The applicant denied having any memory of that incident. Although a long time had elapsed, I thought that surprising, given the nature of the incident.

191    The IOMS also recorded that the applicant was refusing school attendance.

192    There is no reason not to accept the IOMS reports as reliable.

193    Quite apart from the IOMS reports, the applicant was made the subject of an Intensive Management Plan (IMP) on 19 September 2011. Mr Middlebrook had issued a “directive” on 31 August 2011 relating to both prisoners in an adult prison and detainees in youth detention to the effect that those who “continually pose a threat to other prisoners, staff or … security … and [require] a greater degree of supervision and management than general [detainees]” should be subject to an IMP. The IMP of 19 September in relation to the applicant stated that it had been prepared “in order to maintain the good security of the [C]entre”. It also stated that it had been “designed to address [the applicant’s] behavioural patterns”.

194    The summary of the applicant’s security classifications set out earlier in these reasons confirms that there had been a deterioration in the applicant’s behaviour after 22 August 2011.

195    I am satisfied that all these matters (occurring before 14 October 2011) made obvious the selection of the applicant for transfer to the bigger detention centre.

196    In my view, the applicant had accepted in the meeting on 14 October 2011 that it was inevitable that he would be selected for transfer even if he did not volunteer and so, with a view to making the best of it, had volunteered. The statements of the ASYDC staff in the contemporaneous records concerning the applicant’s willingness to transfer should be understood in this light. That is to say, it was not the case that the applicant had sought transfer to Don Dale, but rather his seeing that his transfer was inevitable, and so seeking to make the best of it. In in that sense, he was not a reluctant volunteer. He had been at Don Dale on some five previous occasions and was well familiar with its routines and facilities.

197    At the same time, I am impressed by the fact that, in his memo to Mr Yaxley of 11 November 2011, to which I will refer shortly, the applicant referred to an understanding that he may be at Don Dale for a period of about four weeks only. I think it unlikely that the applicant would in November 2011 have invented that account. To the contrary, I think it more likely that something was said which led him to understand that the transfer may be relatively short term. Any doubt in that respect is removed by the admission in the respondents’ filed defence that an (unidentified) officer had told the applicant that his transfer would likely be for several weeks only. I am satisfied that the applicant did believe, as a result of what he had been told before he volunteered for the transfer, that his period at Don Dale could be relatively short. That explains in part his letter to Mr Yaxley of 11 November 2011, and his disappointment on learning that retransfer would not occur. It also indicates that there was some justification for the applicant’s belief that he had been misled.

Consideration of retransfer to ASYDC

198    The applicant said, and I accept, that, shortly after arriving at Don Dale, he began to feel homesick. He told his Case Manager, Mr Donald, on more than one occasion that he wished to return to ASYDC and on 8 November 2011 Mr Donald made a record of his home sickness. Mr Donald booked visits for the applicant’s family and assisted the applicant to write a letter to Mr Yaxley who was then the Acting General Manager (and therefore Superintendent) of Don Dale. The letter (in the applicant’s own hand) stated:

Dear Mr Yaxley

is it ok if I can go back to Alice Springs? I have been here now for the 4 week(s) that I agreed to come here for. My Mum is expecting me to return to Alice Springs detention centre soon as agreed when I came up here. Thanks for your time.

11/11/11

Marley Campbell

199    The applicant said that Mr Yaxley had told him before he wrote this letter, that he would have to attain a Low 1 security classification before he would be retransferred to ASYDC. If that be correct, the applicant’s conversation with Mr Yaxley must have occurred relatively soon after he arrived at Don Dale, because the applicant achieved a Low 1 classification on 2 November 2011. The applicant said that he was angered by the requirement that he have a Low 1 classification because he had had a medium classification when he was transferred from ASYDC and had felt that he should be able to return there with the same classification. He agreed, however, in cross-examination, that he had known when he wrote the letter of 11 November 2011 that he would have to have a Low 1 security classification.

200    It is possible that the conversation with Mr Yaxley to which the applicant referred had not occurred until 2012, when he did not have a Low 1 classification. It is not necessary to make a finding about that.

201    The applicant did not give any evidence to support his pleaded claim that Mr Yaxley had told him that he had been transferred to Don Dale because of “behavioural issues”, and Mr Yaxley was not cross-examined to the effect that he had made such a statement.

202    Mr Donald provided the applicant’s letter to Mr Yaxley and others later on 11 November 2011. Mr Yaxley circulated the letter further (including to Mr Clee) and made it an item for discussion at the Management Meeting on Monday, 14 November 2011.

203    Mr Clee did not support the retransfer of the applicant to ASYDC on an ongoing basis. On Sunday, 13 November 2011, he circulated an email in which he:

(a)    disputed that the applicant had been told that he would return to ASYDC after four weeks, and said that the applicant had been transferred to Don Dale at his own request after expressions of interest had been sought from the detainees;

(b)    expressed concern about the effect which the applicant would have on a named 12 year old detainee in ASYDC, if he was returned;

(c)    expressed concern about the effect which the applicant’s return would have on Mr Kennedy, saying that they “do not do well in the same building and are often at times very difficult to manage”; and

(d)    stated his belief, based on the internal reports, that the applicant was doing well in DDC and “is quite settled”.

204    Mr Clee concluded by saying:

[ASYDC] is a very small operation in comparison to DDC, and the dynamics of the centre will change dramatically should Marley be transferred back here due to his personality and his overpowering influence on younger detainees.

205    Mr Clee was not challenged in his cross-examination about matters (b), (c) and (d) and I accept that they were genuine concerns held by him at the time.

206    There was no documentary evidence of the decision of the Management Meeting concerning the applicant’s request for transfer back to ASYDC. However, the decision must have been that the applicant would not be retransferred at that time. Either at that meeting, or shortly afterwards, a decision was made that the applicant would be returned to ASYDC over the Christmas period.

207    Mr Yaxley said that he did not have any particular recollection of receiving the applicant’s letter of 11 November 2011 but agreed that he had been aware from his discussions with the applicant that he was missing his family and wished to return to Alice Springs. He also said, and I accept, that he had considered that consistent good behaviour would be a condition for the applicant’s return to Alice Springs and agreed that he had conveyed that to the applicant. Mr Yaxley said in addition, and I accept, that there had been times when he had commended the applicant on his progress and behaviour.

208    Mr Donald deposed that the applicant’s family had been strongly in favour of him returning to Alice Springs, and that, while he had assisted the applicant to write the letter of 11 November 2011, he had not been a decision-maker in relation to the request.

209    Although the evidence did not indicate this expressly, I infer that the agreement that the applicant be transferred temporarily to Alice Springs over Christmas 2011 may have been in the nature of a compromise. Arrangements were made for the applicant to fly to Alice Springs on 23 December 2011 and to return to Don Dale on 3 January 2012.

210    The applicant said, and I accept, that he did not get a written response to his letter of 11 November 2011. He could not remember receiving a verbal response. Mr Yaxley said that he had not told the applicant that he would not be retransferred, and had not instructed anyone else to do so. However, he had expected a case worker to pass on that kind of information.

211    The evidence did not indicate when the applicant was told of the decision to transfer him to ASYDC for Christmas. I infer, however, that the applicant was so informed within a few days of 14 November 2011. The applicant claimed that he was not told how long he would be staying in ASYDC. I regard that evidence as improbable and do not accept it. I consider that the applicant must have realised that a long term transfer back to Alice Springs was not in prospect. I draw that inference because Mr Donald had a discussion with the applicant’s grandmother, Ms Palmer, on 18 November 2011 and made the following record:

Christine agreed that it would be good for Marley to stay in Don Dale but return to Alice for Christmas. She also agreed that she would encourage him to get a blue shirt, by behaving well. [I] was also told that she had a fair bit of family travelling up to Darwin so they would come and visit him.

212    It will be recalled that blue shirts were given to Low 2 classification detainees. As at 18 November 2011, the applicant was Low 1 (green shirt).

213    In her evidence, Ms Palmer did not acknowledge this conversation or its contents but I am satisfied that it occurred. Although Mr Donald was challenged in his cross-examination about the accuracy of his note, I am also satisfied that he recorded accurately what had been conveyed to him by Ms Palmer. It supports the inference that it was known by 18 November 2011 that, apart from the planned Christmas visit, the applicant would not be returning to ASYDC. If these matters were known to Ms Palmer, they are likely also to have been known by the applicant.

214    In any event, I am satisfied that, despite the applicant’s denial, he signed an acknowledgement on 29 November 2011 that he had been assessed as suitable for transfer to ASYDC for Christmas and confirmed that he understood that “if I am transferred I will return to Don Dale in approx. 2 weeks”.

The cancellation of the Christmas transfer to ASYDC

215    On 21 December 2011, the applicant assaulted another detainee by punching him in the face. That assault had a number of consequences. One was that Mr Yaxley cancelled the applicant’s transfer back to Alice Springs for Christmas. The applicant acknowledged that he had been told shortly after the assault that his planned trip to Alice Springs for Christmas would be cancelled and, further, that he had understood at the time that, if he did not improve his behaviour he would not be authorised to go back to Alice Springs. The applicant said he had been angry on being informed that his trip to ASYDC had been cancelled.

Duty of care: the applicant’s pleaded case

216    In [12] and [12A] of the 6SC, the applicant pleaded that the Territory and the Superintendent each owed him a duty of care to exercise the powers under the YJ Act and the Regulations “in a reasonable manner so as to avoid the applicant suffering from foreseeable harm”. In [13] and [13A], the applicant pleaded that each of these duties of care was non-delegable.

217    In relation to the detention of the applicant at Don Dale, the applicant pleaded that the respective duties of care required the Territory and the Superintendent to consider:

a.    the reasons why the applicant had been transferred to Don Dale;

b.    the requests of the applicant to be returned to ASYJC;

c.    whether imposing conditions on the return of the applicant to ASYJC was

i.    appropriate; and

ii.    authorised by the objects and provisions of the Act and Regulations, including those provisions referred to in paragraphs 9, 10 and 11;

d.    whether the provisions of the Act and Regulations could be met by continuing to detain the applicant at Don Dale against his wishes;

e.    whether the applicant may suffer harm from the continuation of his detention at Don Dale in the circumstances pleaded; and

 f.    transferring the applicant back to ASYJC.

218    As is apparent, this plea of the scope of the duty was that the Territory and the Respondent were required by their respective duties of care “to consider” each of the specified matters. However, later pleas indicate that the applicant’s claim was directed to the failure to transfer him back to ASYDC from Don Dale, and not to a failure to consider those matters. This plea is evident in [33]-[35A] of the 6SC.

[33]    In the circumstances, the first respondent was aware, or ought to have been aware, that:

a.    having told the applicant if he volunteered and agreed to be transferred from ASYJC to Don Dale for two to four weeks as a result of overcrowding at ASYJC;

b.    having unreasonably failed to transfer the applicant back to ASYJC when a place became available for him at ASYJC;

c.    having treated the applicant on the basis he had been transferred for behavioural reasons when the applicant’s transfer was for the purpose of the first respondent’s own accommodation requirements;

d.    unreasonably imposing discipline upon the applicant by maintaining the detention of the applicant at Don Dale on grounds not advised to the applicant until he had moved there, and without ensuring that his right to be heard in relation to that discipline; and

e.    having unreasonably separated the applicant from his family, community and Country,

would give rise to a foreseeable risk of harm to the applicant.

219    Paragraph [33A] replicates substantially [33] in the 6SC but in relation to the Superintendent.

220    The 6SC then continues:

[34]    In the circumstances, a reasonable person in the position of the first respondent and the second respondent, would have transferred the applicant from Don Dale to ASYJC by mid-November 2011.

[35]     The first respondent’s failure to transfer the applicant back to ASYJC from Don Dale by mid-November 2011 breached the Duty of Care.

[35A]    The second respondent’s failure to transfer the applicant back to ASYJC from Don Dale by mid-November 2011 breached the Second Respondent’s Duty of Care.

221    The applicant’s pleading of his alternative case is contained in [36] of the 6SC to which I will return later.

222    The applicant’s pleading of the harm said to have been caused by the respective breaches of the duty of care is contained in [37] of the 6SC:

[37]    The breach of Duty of Care and the Second Respondent’s Duty of Care referred to in paragraphs 35 and 36 resulted in the applicant suffering foreseeable harm, being:

a.    the false imprisonment of the applicant; and

b.    mental harm.

Particulars

The ongoing detention of the applicant at Don Dale constituting breach of the Duty of Care and the Second Respondent’s Duty of Care:

i.    was for a purpose, being the infliction of unlawful and inappropriate discipline upon the applicant, which was inconsistent with a reasonable exercise of powers under the Act and the Regulations;

ii.    was undertaken and maintained in the knowledge that it deprived the applicant of his rights, including his right to contact with his family, culture and Country;

iii.    inflicted punishment upon the applicant which was unfair, known by the applicant to be unfair, was contrary to the aim of developing the applicant’s sense of social responsibility and hampered his development in beneficial and socially acceptable ways in breach of section 4(n) of the Act; and

iv.    resulted in the applicant being detained at a place which was not authorised by the scheme of youth detention established by the Act and the Regulations.

223    In effect, the applicant claimed that the breaches of duty of care resulted in his “false imprisonment” by reason of him having been “detained at a place which was not authorised by the scheme of youth detention established by the Act and the Regulations” – see Particular (iv) in [37]. In addition, the applicant pleaded an unparticularised form of “mental harm”.

224    Although the applicant alleged that the place at which he had been detained was not authorised by the YJ Act, he did not plead any breach of statutory duty. As I understood it, the applicant’s case was that the pleaded unauthorised detention at Don Dale informed the breach of the duty he alleged: cf Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424.

The claim advanced at trial

225    The claim ultimately made on the applicant’s behalf with respect to his detention at Don Dale until Christmas 2011 was more confined and reflected in part the articulation of the applicant’s claim in [37] of the 6SC. Counsel submitted in [126] of the written submissions:

[126]    The First Respondent’s records confirm that the Applicant continued to be detained in Darwin for ill-defined disciplinary purposes. That detention was in breach of the YJ Act. The records show that officers in the employment of the First Respondent (including the Second Respondent) were aware of the Applicant’s strong family ties in Alice Springs. The maintenance of the detention of the Applicant in Darwin lacked lawful authority and breached both the Duty of Care and the Second Respondent’s duty of care, resulting in an unlawful detention. That is because the mode of detention imposed on the Applicant by the Second Respondent involved the removal from his family in Alice Springs for disciplinary reasons with restitution of that relationship being a reward. That constituted a breach of his duty of care resulting in an unlawful detention and, according to Dr Wojnarowska, contributed to an exacerbation of his diagnosed conduct disorder.

(Emphasis added and citations omitted)

226    Counsel confirmed this submission in the oral submissions:

Now, at paragraph 126, your Honour, we address what we say is the nub of the issue in relation to the maintenance of the applicant’s detention at Don Dale and, that is, the assertion of authority to maintenance his detention at Don Dale for what we describe as ill-defined disciplinary purposes. We make no bones about it. We say that that detention was a breach of the Youth Justice Act for this reason: it’s not possible to reconcile that decision either as an exercise of discipline or in pursuit of any of the other objectives of principles which are laid out in the Act.

(Emphasis added)

The form of loss alleged

227    The applicant’s claim that the breach of duty of care had caused “mental harm” can be put to one side for the time being. His alternative claim that the breach caused his false imprisonment involved some curiosity. False imprisonment is a tort in its own right and, as will be seen, its existence does not depend on there having been a breach of a relevant duty of care. The applicant did not seek to make out the tort of false imprisonment independently of the tort of negligence in respect of the continuance of his detention at Don Dale.

228    Despite not alleging the tort of false imprisonment, counsel referred to the applicant’s claim as one of “negligent false imprisonment”. The decision in Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474 suggests that false imprisonment, being a form of trespass to the person, may be caused negligently, and if so, that it is not necessary for an applicant to prove actual harm. However, if the cause of action is negligence, an applicant must prove a breach of a relevant duty of care and damage: ibid.

229    In order to satisfy the element of damage in the present case, counsel submitted that loss of liberty can be a form of damage forming the basis for the tort of negligence. Counsel referred in this respect to Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; (2016) 315 FLR 305 in which Mossop AsJ recognised, at [171]-[173], deprivation of liberty as being damage for the purpose of a cause of action in negligence.

230    However, this meant that the applicant set himself the task of proving a loss of liberty as a result of the breach of duty of care he alleged. Self-evidently, this was a difficult task. The applicant was held in detention by lawful authority. He had no liberty which could be lost, he had no entitlement, let alone liberty, to be held at ASYDC rather than at Don Dale, and he had no entitlement, let alone liberty, to be held in the place which he considered more congenial. His entitlement at best was to be held in detention in accordance with the law.

231    However, it is not necessary to discuss further the difficulties presented by this aspect of the applicant’s articulation of his claim, because, as will be seen, I am not satisfied that the applicant has established a breach of the duty of care.

Duty of care: principles

232    The applicant’s submissions concerning the duty of care owed to him by the respondents and the scope of that duty were brief. Counsel’s written submissions were as follows:

[122]    The relationship of gaoler and inmate gives rise to an established duty of care to take reasonable care for prisoners. That recognised duty arises from the extent and degree of control over prisoners and their resultant vulnerability and reliance on exercise of that duty. The duty is properly cast upon the First Respondent but can also be found for the Second Respondent, given his assumption of responsibility to determine when and on what terms the Applicant would be released from his authority and allowed to return to Alice Springs.

[123]    The case for the imposition of a duty of care in respect of young detainees which has adequate scope and operation is compelling. The terms of the YJ Act inform the scope of the duty.

(Footnotes omitted)

233    As is apparent, these submissions did not distinguish in substance between the duties said to be owed by the Territory and the Superintendent respectively.

234    In Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 at 183 (the sole authority cited by counsel for the proposition in the first sentence in [122]), the High Court confirmed that a police officer who had, by arrest, deprived the person of his personal liberty and had assumed control of him was under a duty to exercise reasonable care for his safety during the detention.

235    As previously noted, the respondents contended that the YJ Act vests an independent statutory authority with respect to the management of a detention centre in the Superintendent with the consequence that the Territory could not have any liability with respect to the applicant’s detention. For the reasons I give later, I reject that contention. I did not understand the respondents to dispute otherwise that they owed a non-delegable duty of care to exercise reasonable care for the health and safety of the applicant while he was held in detention. The authorities confirm the existence of such a duty: Howard v Jarvis at 183; Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36, (2004) 219 CLR 486 at [174]-[175] (Hayne J); R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 at 166; SBEG v Commonwealth [2012] FCAFC 189, (2012) 208 FCR 235 at [7], [19], [69]. The duty did not require the respondents to ensure the health and safety of the applicant, only to exercise reasonable care to that end. As was noted in SBEG at [19], a matter bearing on the question of breach of duty is the need of the Superintendent to ensure effective detention in accordance with the law.

236    In this respect, the statement of Gleeson CJ in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [5], in relation to the duty of care of statutory authorities is pertinent:

Acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons, is only the first step in an evaluation of the authority's conduct for the purpose of determining tortious liability. In some cases, the difficulty of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty. In other cases, of which the present is an example, recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources, and industrial relations.

(Emphasis added)

237    Likewise, McHugh J noted at [114] that the duty of care imposed on a statutory authority should not be inconsistent with the statutory scheme.

238    During the trial, counsel for the applicant referred to Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 in which Dixon CJ, McTiernan, Kitto and Taylor JJ referred to “the well-settled principle … that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered”. This principle was referred to in Sutherland Shire Council v Heyman [1985] HCA 41, (1985) 157 CLR 424 at 458 (Mason J) and in Crimmins v Stevedoring Industry Finance Committee at [62]. However, I do not see it as adding to the duty of care, or its scope, in the present case.

The duty of care and the “parens patriae responsibility”

239    Counsel for the applicant submitted that the scope of the duty of care of the respondents was informed by:

(a)    the provisions of the YJ Act, including s 4;

(b)    the special nature of youth detention; and

(c)    the parens patriae responsibility assumed by the Respondents when removing the Applicant away from his family.

240    Subparagraphs (a) and (b) are uncontroversial. In relation to subpara (c), an initial matter is that, contrary to the premise upon which the submission was based, the respondents had not removed the applicant from his family. The applicant’s detention occurred by reason of the sentence imposed by Martin CJ in the Supreme Court of the Northern Territory on 23 August 2011. The Warrant of Commitment issued by Martin CJ required the applicant to be taken into, and kept, in detention. That being so, the custodianship of the applicant by the respondents in compliance with the order of the Supreme Court was involuntary. Nevertheless, the respondents and in particular, the Superintendent, did have statutory responsibility for the physical, psychological and emotional welfare of the applicant whilst he was held in detention – see s 151 of the YJ Act.

241    Although referring to the parens patriae responsibility, counsel made only a brief submission concerning it:

[W]e say it would inform the nature and quality of the duty of care owed by the [Superintendent] because at that stage he’s isolated from his family. And let’s say that shortly after arriving at Don Dale the applicant manifested a deterioration in the conduct of the sort identified by Dr Wojnarowska. We would say that it was incumbent of the Superintendent, irrespective of the provisions of the Act, to seek medical treatment and, if necessary, the intervention of the Courts in its protective jurisdiction.

242    Counsel did not refer to the Court to any authorities concerning the “parens patriae responsibility”, its interaction with a statutory regime for detention like that contained in the YJ Act, or its interaction with the law of negligence. Nor did the submissions concerning the “parens patriae responsibility” engage with the applicant’s circumstances. Insofar as the submission was directed to the obtaining of medical treatment, the only complaint which the applicant makes concerning a lack of medical treatment is the alleged failure of the respondents to provide treatment with respect to his “visual disability”. I will address that claim later in these reasons. Counsel also could not explain how, or in what circumstances, the respondents could (or should) have sought “the intervention of the Courts in [their] protective jurisdiction”, as he had submitted.

243    In my view, the statutory regime contained in the YJ Act and, in particular, the statutory responsibility imposed on the Superintendent by s 151 of the YJ Act, is a surer guide to the scope of the duty of care owed by the respondents. I accept, however, that the parens patriae jurisdiction of the Courts is one manifestation of the value placed by the law on the protection of the young from serious harm: Secretary, Department of Health and Community Services v JWB & SMB [1992] HCA 15, (1992) 175 CLR 218 at 258-9 (Marion’s Case); Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33, (2003) 214 CLR 269 at [89] (Gummow and Kirby JJ). The jurisdiction derives from the direct responsibility of the Crown for those who cannot look after themselves: Marion’s Case at 259; Cattanach v Melchior [2003] HCA 38, (2003) 215 CLR 1 at [325] (Heydon J).

244    As is apparent from both the written and oral submissions, the claim ultimately made on the applicant’s behalf was that his continued detention at Don Dale was not authorised by the YJ Act because it had been for “ill-defined disciplinary purposes”. One of the difficulties in the case presented in these terms is that counsel did not articulate the disciplinary purpose or purposes alleged. In fact, the description of it as “ill-defined” seemed to be an acknowledgement that it was difficult to do so.

The legislative regime informing the scope of the duty of care

245    Counsel is correct in submitting that the duty of care and its scope is informed by the obligations imposed by, and under, the YJ Act. I have already referred to provisions in the YJ Act concerning the detention of detainees but note again that it makes the superintendent of a detention centre responsible, as far as practical, for the physical, psychological and emotional welfare of detainees (s 151(2)), and imposes obligations on a superintendent to:

    promote programs to assist and organise activities of detainees to enhance their well-being (s 151(3)(a));

    encourage the social development and improvement of the welfare of detainees (s 151(3)(b)); and

    supervise the health of detainees, including the provision of medical treatment (s 151(3)(e).

246    However, the superintendent must also maintain order in the detention centre, ensure the safe custody of all persons within it (s 151(3)(c)) and maintain efficient conduct of the detention centre (s 151(3)(d)).

247    The discharge by superintendents of their duties should take account of the objects and principles stated in the YJ Act. Relevantly, s 3(e) states that one of the objects of the YJ Act is “to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation”.

248    Section 4 of the YJ Act contains a statement of general principles which must be taken into account in the administration of the Act. Those principles are (relevantly):

(a)     if a youth commits an offence, he or she must be held accountable and encouraged to accept responsibility for the behaviour;

(b)    the youth should be dealt with in a way that acknowledges his or her needs and will provide him or her with the opportunity to develop in socially responsible ways;

(c)    a youth should only be kept in custody for an offence (whether on arrest, in remand or under sentence) as a last resort and for the shortest appropriate period of time;

…

(f)    a youth who commits an offence should be dealt with in a way that allows him or her to be re-integrated into the community;

(g)    a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth's offence and the interests of the community;

(h)    family relationships between a youth and members of his or her family should, where appropriate, be preserved and strengthened;

(i)    a youth should not be withdrawn unnecessarily from his or her family environment and there should be no unnecessary interruption of a youth's education or employment;

(j)    a youth's sense of racial, ethnic or cultural identity should be acknowledged and he or she should have the opportunity to maintain it;

…

(n)    punishment of a youth must be designed to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;

(o)    if practicable, an Aboriginal youth should be dealt with in a way that involves the youth's community;

(p)    programs and services established under this Act for youth should –

(i)    be culturally appropriate; and

(ii)    promote their health and self-respect; and

(iii)    foster their sense of responsibility; and

(iv)    encourage attitudes and the development of skills that will help them to develop their potential as members of society;

…

249    It is necessary to keep in mind that the s 4 Principles are to be taken into account in the administration of the YJ Act generally: they are not specific to detention centres. In fact, Principle 4(c) indicates that detention is a last resort, ie, when after account has been taken of the other Principles, it is regarded as appropriate. The application of the Principles to youths in detention is controlled to an extent by the fact of their detention. By way of example, the extent of the provision to a youth of the opportunity to maintain his or her sense of racial, ethnic or cultural identity will be less in the case of a detained youth than in the case of one for whom less severe sanctions are imposed.

250    The Regulations also impose relevant duties on the superintendent. By reg 69, the superintendent must maintain a comprehensive case management system to assess each detainee’s needs in relation to education, vocational training and rehabilitation and ensure an appropriate program of productive activities addressing the identified needs of each detainee is available to that detainee. In relation to the management of misbehaviour, reg 70 provides:

(1)    A member of staff must manage incidents of misbehaviour in the manner the member considers most appropriate, having regard to all the circumstances, including the interests of the detainee or detainees involved in the rules of the detention centre.

(2)    In the discipline or control of behaviour of detainees, a practice that is prohibited by the rules of the detention centre must not be used.

251    Regulations 64 and 65 provide:

64    Responsibilities of members of staff

(1)    Members of staff must exercise understanding, restraint and patience in the care, control and supervision of detainees and in the maintenance of discipline amongst detainees.

(2)    Members of staff must encourage positive behaviour among detainees that is consistent with increasing the responsibility and independence of detainees.

65    Detainee to follow instructions and rules

(1)    A detainee must:

(a)    follow all lawful instructions given to the detainee by the Superintendent or a member of staff; and

   (b)    obey the rules of the detention centre; and

   (c)    comply with all written instructions addressed generally to detainees.

(2)    A detainee aggrieved by an instruction must comply with the instruction to the extent practicable, but may later make a complaint in relation to the instruction.

252    As is apparent, some of these objects and principles may point in different directions. So much is acknowledged by Principle 4(g). Superintendents must therefore exercise some judgment and discretion in the exercise of the responsibilities imposed on them by the YJ Act. The best interests of the individual detainee are obviously an important matter but they are not the sole consideration. As indicated earlier, this means that, in assessing whether there has been a breach of the duty of care, account must be taken of the overall responsibilities of Mr Yaxley as Superintendent with respect to the efficient conduct of ASYDC and Don Dale (s 153(3)(d)) as well as of considerations personal to the applicant.

253    Counsel for the applicant also cross-examined some of the respondents’ witnesses by reference to the manual entitled “Youth Detention and Remand Centres Procedures and Instructions” (the YDRC Manual). Counsel also referred to the YDRC Manual in support of the applicant’s RD Act claims. Although counsel did not refer specifically to the YDRC Manual in relation to the negligence claims, it is appropriate to have regard to it in the present context.

254    The YDRC Manual was developed during 2010-2011 at the instigation of Mr Fattore. It is a comprehensive document extending over 239 pages and addressing multiple aspects of the management and conduct of detention centres. A copy is issued to all staff. The YDRC Manual identifies the YJ Act as its legislative base.

255    Counsel drew attention to a number of provisions in the YDRC Manual. Those which are relevant presently include section 1.6 which, under the heading “Don Dale Centre Principles of Practice”, sets out 14 principles. Counsel referred specifically to:

PRINCIPLE FOUR:    We treat staff, young people in our care and all visitors to the centre with courtesy, professionalism, dignity and respect while valuing diversity.

…

PRINCIPLE EIGHT:    Behaviour management focuses on strategies that reinforce appropriate behaviour and provides consistent, fair consequences for inappropriate behaviour.

PRINCIPLE NINE:    We provide an environment that respects individual rights to privacy, sexuality, confidentiality, religion and culture. We acknowledge that an individual’s privacy may be effected on occasion in the best interest of safety and security within the framework of our Centre’s policies and legislative responsibilities.

PRINCIPLE TEN:    We will provide clear and accessible avenues for complaint and grievance resolution, whilst offering advocacy and access to legal advice.

...

256    Section 3.1, under the heading “Duty of Care”, includes the following:

...

It is a well established principle of law that a duty of care is owed to detainees by those who have custody of them.

The duty of care owed to detainees is greater than that owed to the general public as a result of their custody status. That is, because detainees are unable to make decisions for themselves or control their own environment, Youth workers have an additional responsibility to ensure [a] detainee’s safety and protection.

…

257    The YDRC Manual did not contain any provisions concerning transfer of detainees from one detention centre to another.

Findings concerning the detention at Don Dale from mid-November to Christmas 2011

258    The applicant also alleges that the refusal to return him to ASYDC constituted forms of discrimination in contravention of s 9(1) and (1A) of the RD Act and I am conscious that, in keeping with the manner in which the claims were presented at trial, these claims will be considered separately. To an extent, there was some inconsistency in the submissions concerning these separate claims. I have endeavoured to keep in mind, however, before making the present findings, that they are also pertinent to the resolution of the RD Act claims.

259    I am satisfied that a decision must have been made at, or shortly after, the management meeting on 14 November 2011 that the applicant would not be transferred back to ASYDC for his ongoing detention. Instead, the Christmas visit was decided upon as a compromise. This was not a decision that the applicant should never be returned to ASYDC for his ongoing detention: only a decision that, for the time being, he should remain at Don Dale.

260    I am satisfied that Mr Yaxley, as the Superintendent of Don Dale from 28 October 2011, was the principal decision-maker in relation to the retransfer sought by the applicant. He had little recollection of his decision-making in relation to the request for retransfer but the evidence supports the view that he had taken into account the views of others. These included the view of Mr Clee in his email of 13 November 2011 (Mr Clee was not a participant in the meeting on 14 November 2011) and the view which Ms Blakemore, a Case Worker communicated in her email on the morning of 14 November 2011 that the applicant’s behaviour at Don Dale had been good and that she was happy to keep him there. Mr Yaxley also thought that he had sought Mr Middlebrook’s views about the transfer. I consider that unlikely, given that Mr Middlebrook was not generally involved in day to day operational decisions at Don Dale.

261    The claim that the applicant was until 21 December 2011 detained at Don Dale for “an ill-defined disciplinary purpose” and therefore without authorisation under the YJ Act requires consideration of three issues: the factual issue of why the applicant was kept at Don Dale; whether that was a “disciplinary purpose”; and whether, if it was, that made the continued detention at Don Dale unlawful.

Why was the applicant kept at Don Dale?

262    Mr Yaxley deposed that it was his practice as Superintendent to consider a number of matters when deciding whether to transfer a detainee from one detention centre to another. These matters included:

 (a)    the detainee's offending history and any offences they were charged with;

 (b)    the risks posed by the detainee including risk of harm to others or escape;

(c)    the length of a detainee's sentence, if sentenced or if facing charges, their next court dates and where they are required to attend court;

(d)    whether or not there were other detainees likely to be a positive or negative influence, or on whom the detainee was likely to be a positive or negative influence;

 (e)    the wishes of the detainee; and

 (f)    the capacity for the detainee to stay in contact with family.

263    These matters seem common sense and it is understandable that Mr Yaxley was not challenged about this paragraph in his affidavit.

264    Somewhat curiously, Mr Yaxley was not asked in examination in chief or in cross-examination to state his reasons for keeping the applicant at Don Dale in the period after mid-November 2011. He did say that his attitude had been that the applicant would have to have “consistent good behaviour” before he could be transferred back to ASYDC and that that would be sufficient by itself to warrant the transfer, but could not say that he had told the applicant those things. In saying that “consistent good behaviour” would be sufficient for retransfer, I understood Mr Yaxley to be referring to matters personal to the applicant and not to matters such as operational circumstances and the capacity of ASYDC.

265    There is no reason to suppose that Mr Yaxley did not have regard to the matters considered in his usual practice when considering the applicant’s request for retransfer to ASYDC. Putting to one side the RD Act claims, counsel for the applicant did not point to any reason for Mr Yaxley, in November 2011, to have applied a different approach in the applicant’s case. Some of them pointed in favour of a retransfer, and others against.

266    I consider it likely, and so find, that Mr Yaxley determined that the applicant should be kept at Don Dale (with provision for a Christmas return to ASYDC) because of the applicant’s recent poor behaviour at ASYDC with the implications that had for his management and the maintenance of order in the detention centres, the matters to which Mr Clee referred in his email of 13 November 2011 and in particular the operational considerations for ASYDC if the applicant was transferred, the matters to which Ms Blakemore referred in her email of 14 November 2011, issues concerning the capacity at ASYDC and the additional facilities and services available at Don Dale which made it preferable for his detention to continue there. In short, I am satisfied that the decision was made for genuine, and reasonable, operational reasons. I am also satisfied that the applicant’s wish to be closer to his family was not overlooked; after all this was the very matter which had led to the applicant’s request. Account was taken of it in the provision for the return to ASYDC over Christmas.

267    I think it probable that Mr Yaxley did make his decision in the belief that the applicant had not been given any understanding as to the likely length of his detention at Don Dale. In that belief Mr Yaxley was wrong. But his mistaken belief was understandable and “innocent”.

Did Mr Yaxley have a “disciplinary” purpose?

268    Counsel’s description of the purpose as an “ill-defined” disciplinary purpose makes it difficult to come to grips with this element of the submissions. At times, there seemed to be a suggestion that the “ill-defined disciplinary purpose” had been untoward, or not contemplated by the YJ Act. At other times, there seemed to be a suggestion that Mr Yaxley had made the decision for the purpose of imposing a sanction or punishment on the applicant. The applicant’s submissions did not articulate these suggestions or the basis for them.

269    Counsel noted that, on 26 March 2012, when Mr Yaxley had sought Mr Brown’s approval for the applicant’s temporary transfer to ASYDC in April 2012, he had said, amongst other things, that the applicant seeing his grandmother for her birthday and having regular family contact during the visit “would be a positive move to assist his re-integration and reward him for his mature and hard working approach”. Counsel’s submission emphasised the reference to “reward”. The submission seemed to be that, by not providing the “reward” in November and December 2011, Mr Yaxley had imposed a sanction, and that this evidenced a disciplinary purpose.

270    There is of course a sense in which the provision of a benefit or reward for good behaviour, and the withdrawal or non-provision of the benefit in the event of poor behaviour, is disciplinary. However, in the detention centre context, it is not unreasonable for a superintendent to provide rewards. In this respect, I refer to the evidence of Mr Donald:

[10]    Detainees with a lower security classification were afforded greater privileges within the detention centre as an incentive to good behaviour in detention. Those with open security were able to leave the detention centre to participate in external work programs, external rehabilitative programs like horse riding (Don Dale only), and sometimes even just to go with a Case Manager to a shopping centre or another public place to work towards their community reintegration.

[11]    In my experience, the classification system worked very well to reinforce and reward positive behaviours in the detention centre. When I was talking to detainee's about their behaviour I would say things like: "Now this is what you have to do to get to a blue shirt ..." Generally, I found that the detainees responded positively to that since it gave them specific goals to work towards with their behaviour.

271    Mr Yaxley gave evidence to similar effect:

[35]    A detainee’s classification had consequences for the privileges available to them and the restrictions of their behaviour in detention. Those detainees who had achieved a lower classification were given greater freedom and more rewards. The purpose of this scheme was to incentivise good behaviour in detention.

272    This evidence accords with common sense, and I accept it. The provision of such incentives can be seen as consistent with the YJ Act Principles 4(a), (e), (g), (m) and (n).

273    An intrinsic part of a system of incentives for good behaviour is the withdrawal of the promised benefit when the standard of required behaviour is not met or maintained. The incentive ceases to be an incentive if the promised benefit is still provided when it has not been earned.

274    By this form of “discipline” in the detention centre context, the consequences of poor behaviour and poor decisions are brought home to detainees. Given the express preference of the applicant, at least before December 2011, to be returned to ASYDC, it made common sense for his continued good behaviour to be made a condition of that return. It is accordingly appropriate to regard the holding out to the applicant of “consistent good behaviour” as a requirement for return to ASYDC as the provision of an incentive, and the cancellation of the trip on 21 December 2011 as the imposition of a sanction for his failure to maintain good behaviour and in this general sense as being “disciplinary”.

275    However, the evidence does not support a conclusion that the applicant was kept at Don Dale (rather than ASYDC) from 14 November until December 2011 as a punitive measure, whether wholly or in part. Mr Yaxley’s willingness to transfer the applicant to ASYDC over Christmas so that he could be closer to his family at that time is inconsistent with such a view. It may be inferred that the sentence of detention imposed on the applicant by the Supreme Court on 23 August 2011 had, amongst other things, had punitive elements but there was no indication that the selection of his place of detention before 21 December 2011 had been for some additional punitive purpose.

276    The reasons of Mr Yaxley identified above cannot reasonably be regarded as supporting a “disciplinary” purpose for the applicant’s continued detention at Don Dale in the period 14 November to 21 December 2011, other than in the general sense outlined above. Mr Yaxley’s reasons seem instead to have been directed to the maintenance of good order at ASYDC and Don Dale and to have been based on considerations of an unexceptional kind about the placement of one of the several detainees for whom he had responsibility. Mr Yaxley was entitled to impose reasonable measures to promote long term good behaviour by the applicant, including by providing incentives if the applicant maintained a standard of appropriate behaviour. The withdrawal of the incentive, which may be seen to be disciplinary, is an ordinary incident of this form of “discipline”.

Was keeping the applicant at Don Dale unlawful?

277    Even if the matters on which Mr Yaxley relied are characterised as “disciplinary”, the submissions of the applicant’s counsel did not indicate how the continued detention of the applicant at Don Dale was unauthorised. The YJ Act does not preclude superintendents from taking action for “disciplinary purposes”. To the contrary, s 153(1) imposes positive obligations on superintendents to maintain discipline at detention centres, albeit limiting the forms of the action which they may take for that purpose. Keeping the applicant at Don Dale could hardly be characterised as a proscribed form of discipline.

278    It was put to some of the respondents’ witnesses that the decision to keep the applicant at Don Dale was arbitrary, in the sense of capricious. In the final submissions, counsel characterised the decision as “arbitrary” and submitted that no consideration had been given to the applicant’s connections to his family or his country. Counsel also submitted that Mr Yaxley’s requirement that the applicant have a Low 1 classification before being transferred was “arbitrary”. Counsel noted that ASYDC was able to accommodate detainees with a Medium classification (that had been the applicant’s classification before his transfer to Don Dale); the condition had not been communicated to the applicant before the transfer to Don Dale and indeed had been imposed only after the applicant arrived at Don Dale; and, as will be seen, the applicant’s classification of Medium at the time of his transfer back to ASYDC on 9 July 2012 had not precluded that transfer. Counsel also submitted that, at the time of the applicant’s temporary transfer in April 2012, he had had a Medium classification. That is not so as the applicant’s classification at that time was Low 1.

279    The matters to which I referred earlier indicate that a characterisation of Mr Yaxley’s decision as arbitrary would not be appropriate. The reasons for the decision, on my findings, were both plausible and rational. It made sense to keep the applicant at Don Dale and to give him an incentive to behave appropriately. The very fact that the Christmas return was approved indicates that consideration was given to the family relationships. As to the connection to country, this was not a matter which featured at all in counsel’s cross-examination of Mr Yaxley.

280    I also note that in the closing submissions concerning the RD Act claim, counsel for the applicant withdrew reliance on the following paragraph in the written submissions concerning the omission to return the applicant to ASYDC:

[83]    At no time did [the Territory] take into account the consideration of the Applicant’s family connections, his Aboriginality or his country.

281    For these reasons, I reject the applicant’s claim insofar as it was based on the “ill-defined disciplinary purpose”.

Was the duty of care breached?

282    The question of whether the Territory or Mr Yaxley breached the duty of care owed to the applicant is to be determined objectively, and not by reference to Mr Yaxley’s subjective purpose. The approach stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48 remains influential. His Honour said:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

See also State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 at [7] (Gleeson CJ) and at [78] (Gummow and Hayne JJ).

283    Little attention was given in the evidence and submissions at trial to the question of whether a reasonable foreseeable consequence of keeping a detainee in the applicant’s circumstances at one detention centre rather than another was the suffering of a psychiatric injury. There was no suggestion that, before 2011, this had been the experience with other detainees. Nor was there evidence of this having occurred in other jurisdictions. Neither Mr Ralph nor Dr Wojnarowska gave any evidence confirmatory of the reasonable foreseeability of the risk arising from a detainee being kept in one detention centre rather than another. I will return to the evidence of Dr Wojnarowska to which counsel referred in the submission extracted above, but note now that the circumstances on which Dr Wojnarowska was asked to opine extended beyond the matters presently under consideration and involved assumptions not established by the evidence. There was nothing in the YJ Act, the Regulations or in the Policy Determinations to put Mr Yaxley on notice that such a risk might exist.

284    Nevertheless, I am willing to assume, for the sake of the analysis, that Mr Yaxley should reasonably have foreseen that a consequence of the decision to maintain the applicant at Don Dale on an ongoing basis could be that the applicant would develop a psychiatric illness.

285    A reasonable person in Mr Yaxley’s position would have had to balance a number of considerations in relation to the possible transfer of the applicant back to ASYDC. On one side, these included the foreseeable risk of injury which I have assumed, the applicant’s reports of home sickness, his request to be transferred back to ASYDC, and the greater proximity to his family that the transfer would give him. The 1,500 km distance of Darwin from Alice Springs meant that the detention of the applicant at Don Dale had a dimension of separation from family which was over and above that which was a necessary incident of the applicant being detained under the YJ Act. Quite apart from the statutory recognition in s 4(h) and (j), Mr Donald testified (and I accept) that the maintenance of family contact was “very important”.

286    On the other hand, there were numerous matters indicating that, taking into account a superintendent’s overall responsibilities, a reasonable superintendent could (and probably would) have concluded that it was appropriate for the applicant to be retained in Don Dale. Many of these were the same factors that had led to the applicant’s transfer to Don Dale in the first place. On the evidence, matters which made it objectively reasonable for Mr Yaxley to keep the applicant detained at Don Dale included:

(a)    ASYDC continued to operate at, or close to, its capacity. In the period from 11 to 30 November 2011, the daily average occupancy of ASYDC was 13.2 detainees and, for nine of those days, the detainees included a female for whom separate sleeping arrangements had to be made, thereby limiting the options for male detainees. With the exception of one day in that period when the occupancy was 11, the number of detainees at ASYDC exceeded its optimum capacity to which I referred earlier. This was especially so between 28 and 30 November 2011 when there were 15 detainees, including one female.

In the period from 1 to 23 December 2011, the average occupancy at ASYDC was 16.1 detainees – this average is calculated without reference to the occupancy on 3, 4, 10, 11, 17 and 18 December for which the evidence did not disclose the figures. On five of the days in December, the detainees at ASYDC included one female;

(b)    experience indicated that there could be marked and sudden fluctuations in the levels of occupancy at ASYDC. This meant that there was a real prospect of the overcrowding experienced on 14 October 2011 occurring again and at short notice. I note in this respect that there were 19 detainees at ASYDC on 9, 12, 13 and 14 December 2011 and 18 on 7, 8 and 15 December 2011;

(c)    the applicant was not on remand but was serving a significant sentence. He did not have future court dates in Alice Springs. Moreover, as consideration of his parole had been deferred, there was no prospect of him being released from detention in the near future;

(d)    ASYDC was less suitable for long term detainees such as the applicant. It was smaller, less secure (the chained security fence was easily climbable) and was able to provide detainees with fewer rehabilitative, vocational and recreational activities. Whereas ASYDC had one case worker, Don Dale had three. The advantages of Don Dale for long term detainees made it common for detainees transferred to it to remain there until their release. I accept Mr Fattore’s evidence about these matters. Mr Yaxley said, and I accept, that most of the detainees who transferred from ASYDC considered it better to be at Don Dale because of its facilities. I also accept Mr Donald’s evidence that he had been encouraging the applicant to stay at Don Dale because the programs available to him there gave him a better chance of obtaining parole before he turned 18 and thereby avoiding transfer to an adult prison as required by s 164 of the YJ Act;

(e)    the applicant’s reviews, in particular those in November 2011, indicated that he was progressing well at Don Dale. The SCATE assessment for 2 November 2011 included the recommendation that he be given a security classification of Low 1 because:

Marley’s behaviour has been excellent since his transfer to Don Dale. Marley has been compliant and he has not received any case notes the past 2 weeks.

However, it is to be remembered that it was as recently as 19 September 2011 that the applicant had been made subject to an IMP and as recently as 10 October 2011 that he had assaulted a YJO. Moreover, from 6 December 2011, the applicant’s security classification returned to Medium, and remained at that level for the rest of December. Counsel for the applicant submitted that this increased security classification was attributable to the applicant’s disappointment and anger at learning that he would not be transferred back to ASYDC. That is a possibility but the evidence is not such as to permit the Court to make a finding to that effect;

(f)    on the evidence, the foreseeable risk of the applicant developing a psychiatric illness was slim, and its occurrence improbable. The circumstance that the applicant and his family would have found it more congenial for him to be detained at ASYDC did not, of itself, bear on the assessment of the foreseeability of the risk of injury; and

(g)    the keeping of the applicant at Don Dale could be seen as providing him with an incentive to maintain good behaviour.

287    The matters just mentioned indicate that there were both operational considerations, and considerations personal to the applicant which made it appropriate for him to be kept at Don Dale.

288    In these circumstances, the Court could not conclude that it was unreasonable and so in breach of the duty of care for Mr Yaxley to have decided in November and December 2011 to keep the applicant at Don Dale rather than transferring him back to ASYDC on an ongoing basis. That being so, the applicant has not established a breach of the duty of care owed to him. It is understandable that the applicant may have had a sense of grievance, given the indication to him on 14 October 2011 that his transfer to Don Dale would be short term but the fact that his expectation of a return to ASYDC was not realised does not indicate a breach of the duty of care owed to him.

Conclusion on claims of negligence in keeping the applicant at Don Dale until Christmas 2011

289    In short, I am not satisfied that the applicant has established a breach of the duty of care by the keeping of him at Don Dale from mid-November 2011 to 21 December 2011. This means that it is unnecessary to consider whether this gave rise to the form of “negligent false imprisonment” claimed by the applicant and also to any form of actionable “mental harm”.

290    As indicated, I will consider the continued detention of the applicant at Don Dale from 21 December 2011 in a later section of these reasons, because that consideration must take account of the events which occurred on and after 21 December 2011.

The claim of false imprisonment: 26 December 2011 to 9 January 2012

291    The next claim in chronological sequence concerns the manner in which the applicant was detained at Don Dale and at DCC in the period between 26 December 2011 and 9 January 2012. The applicant pleads that, throughout this period he was held in isolation, that the periods in isolation were unauthorised, and that they constituted a form of false imprisonment which sounds in damages. He also alleges that his very transfer to DCC was unlawful.

292    The manner in which the applicant was detained between 26 December 2011 and 9 January 2012 had its origins in the “disturbance” which occurred at Don Dale in the early hours of 26 December 2011 in which the applicant had a prominent part.

293    Before coming to those events, it is appropriate to make findings about matters which occurred in the days preceding it.

Cancellation of the applicant’s Christmas transfer to Alice Springs

294    As already noted, approval had been given for the applicant to return to ASYDC over Christmas 2011. Flights had been booked for the applicant to travel to Alice Springs on 23 December 2011 and to return to Don Dale on 3 January 2012. He was aware of those arrangements. On the afternoon of 21 December 2011, the applicant forcibly punched a 14 year old detainee on the jaw, causing him injuries. This was a serious incident and the police were called.

295    In consequence of the applicant’s conduct, Mr Yaxley cancelled his transfer to ASYDC for Christmas and directed that he be placed in an isolation cell. That occurred with almost immediate effect.

296    The isolation cells were in the BMU and were referred to colloquially as the “back-cells”, the “cells” or the “BMU”. The BMU comprised five cells in a row on the south-western side of Don Dale, an enclosed exercise yard which also contained a shower, and a room described in the evidence as a “security lounge” (but marked on the plan of Don Dale as an “activity room”). The security lounge was not set up as a lounge. It was instead used as an additional bedroom in the BMU. Each of the five cells opened into the exercise yard. The security lounge also opened into the exercise yard but on the opposite side from the cells. The BMU was separate from the other accommodation in Don Dale.

297    Each cell in the BMU had concrete walls and was approximately 4 m x 3 m. The exercise area was approximately 15 m x 5 m. The applicant was placed in Cell 4. Each cell had its own toilet but not all had their own hand basin. A concrete slab provided the base for a mattress. Detainees were provided with a mattress, pillow, sheets and blanket.

298    It is evident that the cancellation of the Christmas transfer to Alice Springs caused the applicant to be resentful and angry. He attributed his behaviour in the early hours of 26 December 2011 to those feelings.

299    The applicant’s placement in the BMU was initially for 24 hours but, on the afternoon of 22 December 2011, Mr Yaxley sought the approval of Mr Brown for the placement to be up to 72 hours. Mr Brown was acting in the position of Director at the time as Mr Middlebrook was on leave. The evidence as to whether Mr Brown gave that approval was circumstantial, but I infer that it was given. On that basis, the maximum period during which the applicant could have been isolated pursuant to s 153(5) expired late in the afternoon of 24 December 2011. The applicant said that he remained in the Cell for the following day, Christmas Day. The documentary evidence to which I will refer in the next section of these reasons explains, in part, that circumstance.

The applicant’s threat of self-harm

300    At about 11.50 am on Saturday, 24 December 2011, the applicant complained about being hot and uncomfortable in his cell. This was an understandable complaint as, unlike some other areas at Don Dale, the BMU did not have air-conditioning. At 11.50 am, he told YJOs that he was unwell and wished to be moved to a cooler room. The YJOs explained that there was no other room available but set up fans in the BMU.

301    When the applicant was told that he would not be moved to an air-conditioned room, he said “well, I will kill myself then”. He repeated that statement shortly afterwards. The applicant said (and I accept) that he made these statements “because I was angry and I was feeling sick at the time”. The YJOs then placed the applicant “at risk” and informed Mr Yaxley and “On call Medical”. The applicant said that this meant that he was put on “suicide watch”. The records indicate that the applicant was kept under observation overnight, at 15 minute intervals. Ms Clancy, a YJO, recorded that she had told the applicant on 24 December that, if he was put “at risk”, he would have to stay in the isolation cell. The implication was that he would otherwise be returned to his usual room. I think this explains in part why the applicant was kept in the BMU for longer than the 72 hours permitted by Mr Brown’s authorisation.

302    A registered nurse attended the applicant at 9.52 am on Christmas Day. She made the following record of the attendance.

[A]fter talking to [the applicant] I realised he had no history of self-harm and only made the comment ‘I will kill myself then’ when told that he would not go to an air-conditioned room after fighting. This I believe was just attention getting behaviour. I discussed this with Dr Kingston and he is to be taken off risk.

303    It was not suggested that this record was inaccurate or that the opinion formed by the nurse had been inappropriate. Effect was given to the nurse’s recommendations and the applicant was recorded as ceasing to be “at risk” at 9.15 am on Christmas Day. It was not suggested that anything turned on the discrepancy between 9.15 am and the time when the nurse saw the applicant. It may be attributable to a simple recording error.

304    The applicant said that, after being taken “off risk”, he was still kept in the cell in the BMU. He said that he spent most of Christmas Day in the cell, although he had been allowed out for breakfast for two hours and again at about 4 or 5 pm. He did not have any visitors on Christmas Day. The applicant said that there were no other detainees in the BMU on Christmas Day but the Shift Reports indicate that there was another. The Shift Reports also warrant the inference that at some time on Christmas Day, the applicant was transferred out of the BMU. This is because the Shift Report at 2.45 pm records that he had been moved from Cell 4 to Room 12 (which was not in the BMU). Further, the applicant is not recorded in the 9.30 pm Shift Report as being in the Cells. I infer therefore that, despite the applicant’s evidence, he ceased being accommodated in the BMU at some time before 2.45 pm on Christmas Day.

The disturbance in the early hours of 26 December 2011

305    The applicant’s account in evidence in chief of his role in the disturbance on Boxing Day 2011 was brief. That account was to the following effect: there had been a “heap” of detainees out in the yard that night; Mr Yaxley had come into the yard and had been talking to the detainees, asking them why they were doing what they were doing; he had grabbed a light plastic chair and had hit Mr Yaxley with it; he then had threatened Mr Yaxley with a metal pole about one metre in length; because of his anger, he had not thought about the consequences of his actions; later, he and the other detainees had sat on the ground; police officers had arrived, handcuffed each detainee and escorted them to their cells or the BMU; and he had been taken to the BMU and detained there.

306    The applicant was cross-examined by reference to the CCTV footage but said that he could remember little of the events which were depicted. He did, however, acknowledge that he was shown throwing a plastic chair at Mr Yaxley and “pointing” a metal pole at him.

307    As will become apparent, the applicant’s account of his conduct in the events in the early hours of Boxing Day 2011 is incomplete and underplayed in significant respects.

308    The Court has evidence from Mr Brown and Mr Yaxley concerning the events on the night of Christmas Day and in the early hours of Boxing Day 2011. In addition, the Court received a good deal of documentary evidence including IOMS reports, other contemporaneous records, and communications, as well as the vision recorded by CCTV cameras. The evidence of Mr Brown and Mr Yaxley about the events in the early hours of 26 December 2011 was reliable. It was for the most part supported by the documentary evidence and CCTV footage.

309    On the basis of the oral and documentary evidence I make the following findings.

310    After the lockdown on the evening of Christmas Day the fire alarm in Don Dale was activated three times: at 9.15 pm, 11.45 pm and 1.20 am. Later it was found that the alarms had been deliberately activated by detainees in one cell holding a cigarette lighter to a smoke detector. Chubb Security attended in response to the first and second alarms and the Fire Department attended all alarms.

311    Following each alarm, all the detainees were moved, in accordance with established evacuation procedures, from their rooms to muster points in the courtyard adjacent to the maximum security section. This meant that all detainees were in the one area, whether they had come from their rooms or the BMU and whether they were male or female. However, the female detainees were mustered in a separate area of the courtyard. There were three YJOs on duty: one monitoring the male detainees; one monitoring the female detainees; and one exercising overall supervision. On the third alarm, some of the detainees took with them mattresses, pillows and blankets.

312    The “disturbance” commenced after the third alarm when some detainees disregarded the instructions of the YJOs, with several scaling the fence surrounding the swimming pool and jumping into it and some running onto the adjacent basketball court. Some detainees threw a mattress into the pool; some climbed onto the roof of the school building; one (recorded as Mr Voller) threw a table against a window to the administration offices; and some tried to set a blanket alight using a cigarette lighter.

313    The applicant was an active participant in the disturbance. He wrenched a one metre metal pole used to support the standpipe for a tap from the ground. The applicant used the pole to smash windows in the school building and then set about smashing a CCTV camera attached to that building and windows to the dining room area. He and other detainees sought to break into that area. In addition, the applicant repeatedly rammed himself into the door of the isolation unit in an attempt to break it down.

314    Other detainees were also running about, attempting to smash things, throwing chairs and tables, tearing mattresses and sheets and banging locked doors in attempts to open them. These included the doors to the Music Room and to the Youth Workers’ office. Detainees did break into the classroom and one (recorded as Mr Voller) threw a computer hard drive onto the basketball court, thereby smashing it. There was general yelling of abuse as well as yelling about escaping. Two couples of male and female detainees took advantage of the opportunity created by the mayhem to engage in sexual intercourse.

315    Not all the detainees in the courtyard area participated in the disturbance. Indeed, many remained compliant with the directions from the YJOs. Several of these were moved to the Medium Security area. Three became “trapped” in the airlock between the Maximum and Medium Security sections when YJOs deemed it imprudent, in the interest of maintaining security, to release them. It seems that those principally involved in the disturbance numbered 11.

316    There were several references to the disturbance as a “riot”, and I am satisfied that that is an appropriate description.

317    Mr Yaxley was notified and he arrived at Don Dale at about 1.45 am. He had also earlier attended after the second alarm. The police arrived at approximately 2 am and assistance was sought from Correctional Officers at DCC. Mr Brown arrived at approximately 4 am and remained until after the day shift arrived so that he could brief them.

318    On his arrival, Mr Yaxley immediately entered the courtyard area from the main office. He saw a number of detainees running around the courtyard area. In particular, he saw the applicant attempting to breach the courtyard external gate using the metal pole. CCTV footage shows Mr Yaxley moving towards the applicant in a purposeful way. I accept Mr Yaxley’s evidence that, while doing so, he was instructing the applicant to put down the pole and to cease his activities. The applicant did drop the pole but picked up a plastic chair which he threw forcefully at Mr Yaxley. He told Mr Yaxley that he would kill him.

319    The CCTV footage then shows another detainee (identified as Mr Lawrie) approaching Mr Yaxley in a threatening manner. Mr Yaxley said (and I accept) that Mr Lawrie was saying words to the effect of “what are you going to do now, Mr Yaxley, we’re in control”. Mr Lawrie had in his hands two jagged shards of glass using cloth material as a grip.

320    Mr Yaxley then started to retreat by walking backwards towards the door to the courtyard area. As he did so, the applicant moved towards him in a threatening manner, holding the metal pole at about head height and pointed at Mr Yaxley, and yelling at him “what are you going to do now, Yaxley, this is what you get for not sending me back to Alice Springs, I am going to kill you”. At about the same time, Mr Lawrie said to him words to the effect of “I am going to stab you and put holes in you, you mother fucker”.

321    As Mr Yaxley retreated toward the door to the Youth Workers’ office, another detainee (recorded as Mr Voller) approached him, saying “What are you going to do now, you mother fucker?” At about the time Mr Yaxley exited the courtyard area to the Youth Workers’ office the applicant said “get back in that office, this is our place, we run this place”.

322    Shortly afterwards, while in the Youth Workers’ office, Mr Yaxley saw that the external gate to the courtyard area was being breached. He and prison officers from DCC went immediately to that gate. By the time they got there, the gate had been opened and Mr Lawrie was standing there with the appearance that he was about to run. However, when he saw the prison officers and Mr Yaxley, he returned into the courtyard and the gate was secured.

323    While this was happening, other detainees were engaging in destructive behaviour, yelling abuse, threatening harm to YJOs, throwing chairs and tables, tearing apart mattresses, attempting to tear sheets, breaking windows, breaking educational equipment and banging doors.

324    Mr Yaxley decided, in conjunction with the Police and Correctional Officers that it was preferable to allow time for the detainees’ behaviour to abate, rather than to make an intervention with force.

325    By about 3-3.30 am, the 11 detainees had calmed to the extent that they could be escorted, individually handcuffed, back to their rooms or to the BMU. While this was occurring, they yelled abuse to the YJOs, kicked and punched at doors, and threatened to bash them. The applicant was among those yelling abuse at the YJOs, police and prison officers. One YJO, Ms Clancy, recorded that the applicant had yelled abuse at her as the detainees were being taken to their cells, including stating that “we were dogs and cunts”, that she was “a slut” and that the police and prison officers were “pigs”. She also said that she had heard the applicant and Mr Lawrie “make sounds like they were trying to draw spit through their throats” and said that she and other YJOs had left before they had had the chance to do so.

326    At about 3.30 am, the applicant was placed in BMU Cell 4. The Security Cell Placement Journal recorded this as a new period of placement in the BMU.

327    Subsequently, on 14 January 2012, the applicant was charged with a number of offences arising from his conduct in the Boxing Day disturbance. The Court was not provided with the summons or charge sheet, but the charges appear to have included aggravated assault, making a threat to kill, making a threat to injure or cause detriment, being armed with an offensive weapon, engaging in violet conduct, and unlawfully damaging property. The applicant had Court appearances on these charges on 8 and 29 May and on 12, 18 and 19 June, before he pleaded guilty on 29 June 2012 to the offences of being armed with an offensive weapon, aggravated assault and causing damage to property.

328    I record that, at the trial, the applicant did not pursue his pleaded claims that he had been subjected to an unauthorised use of force when taken to the BMU.

329    Mrs Palmer was cross-examined with reference to a letter dated 16 June 2012 she had sent to Mr Brown. In that letter, Mrs Palmer, amongst other things, relayed the applicant’s account of some of the events on the night of Christmas Day including quoting verbatim one statement said to have been made by the applicant in the incident. She confirmed that the account of the applicant’s conduct which she relayed to Mr Brown had been given to her by the applicant himself and there is no reason to suppose that that was not the case. That account was inconsistent with the documentary evidence, the CCTV footage and with Mr Yaxley’s evidence, so much so as to be seriously misleading. Amongst other things, it portrayed the applicant as having behaved in a responsible, even heroic, manner during the disturbance, including by disarming a fellow detainee who was threatening Mr Yaxley. On the basis of that account, Ms Palmer had contended in 2012 that the applicant’s “bravery” in the incident should have been recognised. It is plain that the applicant had not been truthful to Mrs Palmer.

Detention in the BMU: 26-28 December 2011

330    The applicant was held in the BMU until about 4.45 pm on 28 December 2011 when he was removed to the DCC.

331    The records indicate that, at the time of his transfer to the DCC, the applicant was regarded as having spent 61 hours and 27 minutes in “isolation placement” which is consistent with him having been in that placement since about 3 am on 26 December 2011, that is, when the applicant was placed in the BMU after the disturbance.

332    Initially, the applicant was held in Cell 4 in the BMU by himself.

333    On the evening of 27 December 2011, the circumstances in the BMU changed when an additional five detainees, including Mr McLean, were placed in it. Mr Yaxley deposed, and I accept, that this was because they had “escalated their aggressive and threatening behaviour” so that he considered that they should be placed in the BMU. This was achieved by the doubling up of detainees in the isolation cells. Mr McLean was put into Cell 4 with the applicant.

The removal to the DCC

334    On 28 December 2011, Mr Yaxley applied to a Magistrate in writing for approval to transfer the applicant to the DCC. I set out the substance of this application:

APPLICATION

I, Michael Yaxley, Superintendent, Don Dale Detention Centre, make an application that:

Pursuant to section 154(3) of the Youth Justices Act (“the Act”), detainee Marley Campbell be confined separately for a period not exceeding 24 Hours at the Darwin Correctional Centre and be returned to the Don Dale Centre at the expiration of that time unless further ordered by a magistrate to remain.

The grounds upon which the application is sought under section 154(1) of the Act, is that an emergency situation has occurred and as an interim measure and to resolve the immediate security and safety threat to staff and other detainees at the Don Dale Centre this detainee should be transferred temporarily to Darwin Correctional Centre.

Marley Campbell is currently serving a sentence of 2 years and 3 months for the offence of Aggravated ·Robbery. He has been identified as one of the main perpetrators in a serious incident that occurred at the Don Dale Centre in the early hours of the morning on 26 December 2011.

A series of fire alarms were activated by some of the detainees, causing all detainees to be evacuated to a common area for their safety. In the confusion that ensued Campbell and a fellow detainee, Jason LAWRIE, armed themselves, Lawrie with shards of broken glass and Campbell with a metal bar. They then caused damage to property.

Campbell and Lawrie threatened violence towards staff members and made threats to kill staff members and used the metal bar to jimmy open a perimeter security gate in order to attempt an escape. Their escape was prevented by staff and police who had attended in response to the situation.

Campbell and Lawrie have since been confined to security cells within Don Dale with eight (8) other detainees, as there are no facilities for them to be held individually. Campbell and Lawrie have continued to incite the other detainees housed in the same area to escape and cause violence to staff and further property damage. Campbell and Lawrie have asserted that staff at Don Dale cannot take any further action against them or other detainees for any attempts to escape or violence or property damage. This behaviour has continued since the incident and has not improved. Section 153(5) of the Act only allows detainees to be held in the security cells for a maximum period of 72 hours. This maximum period expires at approximately 3am on 29 December 2011. There are insufficient facilities to hold Campbell and Lawrie at Don Dale, given their behaviour.

Northern Territory Police are investigating the incident and I anticipate that charges will be laid.

In the meantime, Campbell and Lawrie are causing unrest and their behaviour is subversive to the good order of the detention centre, and this behaviour poses a threat to the security of the centre and to the safety of staff and other detainees.

(Emphasis in the original)

335    Mr Brown “vetted” this application before it was submitted to the Magistrate and gave his approval for it to be made.

336    Magistrate Wallace granted the application and returned the signed order to Mr Yaxley at 3.59 pm on 28 December 2011. The order stated as follows:

Pursuant to section 154(3) of the [YJ Act], detainee Marley Campbell be confined separately for a period not exceeding 24 Hours at the [DCC] and be returned to [Don Dale] at the expiration of that time unless further ordered by Magistrate to remain.

337    As is apparent, Magistrate Wallace made a positive order that the applicant be confined at DCC for a period not exceeding 24 hours. This appears to have exceeded the function imposed on a magistrate by s 154 which contemplated only the magistrate giving approval for the transfer. It was not suggested that anything turned on this.

338    The applicant and Mr Lawrie were transferred to DCC at approximately 4.42 pm that same day. Mr McLean was also transferred to DCC but the evidence did not indicate when that occurred, nor when he returned.

339    On 29 December 2011, Mr Yaxley applied for an extension of the period of transfer to DCC. Some of the application, including the statement of the grounds upon which the application was made, replicated the application made on 28 December 2011. However, Mr Yaxley provided further details concerning the background to the application and included the following additional material:

There are insufficient facilities to hold Campbell and Lawrie at Don Dale, given their behaviour, which was causing unrest and was subversive to the good order of the detention centre. In addition, they continue to make serious threats against staff and it is considered that they pose a continued threat to the safety of staff and fellow detainees …

Since the granting of [the order by Magistrate Wallace on 28 December], the remaining detainees held in the security cells continue to be disruptive and a further detainee, Rhys McLean has also become increasingly disruptive. Returning Campbell and Lawrie to these cells would be counterproductive before the remaining detainees have ceased their disruptive and violent behaviour and have returned to their normal accommodation.

340    Magistrate Wallace made the order in the same terms as on the previous day and sent the order by facsimile to Mr Yaxley at 3.59 pm that same day.

341    Mr Yaxley made a third and fourth application for an extension of the period of transfer on 30 and 31 December 2011 respectively. These applications were substantially in the form of the second application, albeit that Mr Yaxley added some information about progress at Don Dale and about the applicant’s behaviour at DCC. These applications were granted (by Magistrates Wallace and Neill respectively). The extension granted by Magistrate Neill on 31 December was for a period not exceeding 48 hours.

342    While at DCC, the applicant was held in isolation, initially in C Block and later in B Block.

343    On Monday 2 January 2012, Mr Yaxley applied for a further extension but Magistrate Smith declined to grant it. Mr Yaxley reported to staff at Don Dale that the Magistrate considered that “the emergency situation [is] not apparent as it stands today”.

Returning to Don Dale

344    The applicant was then returned to Don Dale at 2.40 pm on 2 January 2012. He, together with Mr McLean and Mr Lawrie, were then detained in the BMU, each on the basis of an IMP. The applicant was then held in the BMU until 9 January 2012, at which time he returned to the regular activities in Don Dale.

The Intensive Management Plan for the applicant

345    On 28 December 2011, Mr Yaxley and Ms Blakemore (the Senior Case Worker), prepared an IMP for the applicant in anticipation of his return to Don Dale. It was then thought that that would occur on 29 December 2011.

346    At its commencement, the IMP stated:

This intensive management plan has been designed to address Detainee Marley Campbell’s recent behaviours which include threatening staff with a weapon, namely a steel bar/pipe, extreme non compliant behaviour, inciting disruptive behaviour, and attempted escape, requiring the presence of police and the prison Emergency Response Group.

Detainee Marley Campbell requires a management regime that will ensure that his current conduct will be negated by a positive performance based set of disciplines.

If an “At Risk” situation should occur, an “At Risk” (Red) file is to be initiated and he is to be placed in a camera cell with the approved at risk material clothing/bedding items.

347    With respect to the applicant’s accommodation, the IMP provided:

ACCOMMODATION

Detainee Marley Campbell is to be housed away from the general population of his accommodation area in a setting that offers a higher degree of control and supervision than otherwise available to ensure the safety of staff, other detainees and his own safety. This placement is not a punitive sanction. Detainee Marley Campbell is to be housed in the isolation area.

Detainee Campbell shall have access to 30 minutes of recreation time outside of the cells, per shift, whereby he can also access the Prisoner Telephone System. He can be in the presence of one other detainee whom is also housed within the Isolation Area. Staff are to strictly monitor his behaviour, and if there is any adverse sign of his demeanour changing, he is to be relocated back to his assigned housing area.

Strict procedures are to apply to Detainee Marley Campbell in his accommodation area on a daily basis; staff should be firm but fair in dealings with him.

Detainee Marley Campbell will be subject to the regimes that apply to the approved accommodation area within relevant Superintendent Instructions.

The relevant Shift Supervisor will ensure that detainee Marley Campbell receives the approved "out of cell" time applicable to his current Management Plan.

348    With respect to “compliance with officers’ instructions”, the IMP provided:

COMPLIANCE WITH OFFICERS INSTRUCTIONS

Detainee Marley Campbell is expected to comply with all reasonable instructions issued by officers. In some instances, it may be appropriate to allow the prisoner a few minutes grace in which to begin complying with the instruction.

If Detainee Marley Campbell clearly refuses to comply with an instruction, he is to be resecured in the isolation cell.

(Emphasis in the original)

349    The evidence indicates that the IMP was implemented for the applicant when he returned to Don Dale on 2 January 2012 and he was kept in the BMU in accordance with its terms. The applicant said that he was told on his return that he was going “to start [on] a management plan”, and that his placement in the BMU would depend on his behaviour (“if I stuffed up … I’ve got to stay down there longer”). I accept that evidence.

350    The IMP indicated that it was to be reviewed on 3 January 2012. Mr Yaxley said, without objection:

It would have been reviewed at or around that time and a new plan prepared and circulated.

However, there is no reference in the documents to such a review having been undertaken. Mr Yaxley acknowledged that he had not been able to locate a revised plan, and such a plan was not in evidence. Mr Yaxley did not have recollection of the content of such a revised plan. In those circumstances, I am not satisfied that a review was undertaken or that a revised plan was prepared. I think it more likely that the IMP prepared on 28 December 2011 continued to govern the applicant’s detention.

The applicant’s pleaded claims

351    The applicant pleaded that his detention in isolation during the period commencing 24 hours after he went into the BMU in the early hours of 26 December 2011 until he was removed from the BMU on 9 January 2012 constituted false imprisonment, and sought damages on account of that false imprisonment. This claim was made in a number of alternative ways:

(a)    he had been kept in isolation for the whole of the period commencing at about 3.30 am on 26 December 2011 until 9 January 2012, and none of the period after 3.30 am on 27 December had been authorised pursuant to s 153(5);

(b)    in the alternative, he had been kept in isolation at DCC from approximately 4.45 pm on 28 December 2011 until removed back to Don Dale at 2.40 pm on 2 January 2012 and that detention was unauthorised. As part of this plea, the applicant contended that none of the first, second or third approvals given by Magistrate Wallace had authorised the applicant’s detention in isolation at DCC;

(c)    he had been kept in isolation in the BMU between 2 and 9 January 2012 which had been without lawful authority because it was unauthorised by any statutory power available to Mr Yaxley and, in any event, the continued detention in the BMU had not been authorised by the Director; and

(d)    if the Director had given an approval for the first 72 hours commencing on the return to Don Dale on 2 January 2012, the Director had not given, and it had not been open to the Director to give, approval for the continued detention in isolation from 5 January 2012.

352    For reasons which will become apparent, it is necessary to consider separately each of the two periods of detention in the BMU at Don Dale and the period at DCC. For this reason, I will not address separately the first of the applicant’s pleaded alternatives, that is, the claim in respect of the overall period.

The claim of false imprisonment in the BMU: 27-28 December 2011

353    A number of issues arise in relation to the applicant’s claim that he had been falsely imprisoned from, in effect, 3.30 am on 27 December 2011 until 4.42 pm on 28 December 2011:

(a)    did that period constitute detention in isolation?

(b)    if so, was that isolation for the purpose authorised by s 153(5)?

(c)    even if it was authorised, was the continued confinement in isolation after 3.30 am on 27 December 2011 until his removal to DCC, with the approval of the Director?

(d)    insofar as the respondents rely on the approval of Mr Brown, had he been vested with the powers and authority of the Director?

(e)    to the extent that the applicant was kept in unauthorised isolation, did that constitute false imprisonment so as to sound in damages?

Did the detention in the BMU between 27 and 28 December 2011 constitute isolation?

354    Earlier in these reasons I set out my understanding of the term “isolated from other detainees” in s 153(5) of the YJ Act.

355    Throughout his time in the BMU, observations were made of the applicant every 15 minutes. The great majority of the observations recorded that the applicant was “lying in bed” or “lying on bed”. The applicant was given his meals in Cell 4 and, so far as the records indicate, was allowed out to the exercise yard only once on each of 26 and 27 December 2011 and four times for a shower. However, Mr Yaxley said, and I accept, that the applicant had been permitted to leave Cell 4 twice each day for a half hour on each occasion. He also said that, until the applicant was joined by Mr McLean, his times outside of his cell had been as an individual. After he was joined by Mr McLean, there was at least one occasion when both he and Mr McLean were out of the cell at the same time. This is confirmed by the documentary evidence to which I shall return shortly.

356    The applicant acknowledged, and the evidence otherwise confirmed, that while in the BMU cell, he had been able to, and did, talk with the detainees occupying the other BMU cells. The evidence about the ease with which this occurred was not explicit. I infer, however, that this must, at least in part, have been by the detainees using raised voices. I observe that, at one stage, the applicant explained his inability to remember what the detainees had been talking about by saying “everyone was taking over each other”.

357    During the 30 minute periods while the applicant was out of the cell, he was also permitted to make phone calls.

358    Counsel for the respondents submitted that the applicant’s detention in the BMU Cell between 3.30 am on 26 December and 4.42 pm on 28 December 2011 did not constitute being kept in isolation because:

    the applicant had been able to communicate with the detainees in the other cells;

    from the evening of 27 December, he had had the company of Mr McLean;

    he had been allowed out of the BMU Cell on at least one occasion in company with Mr McLean; and

    account had to be taken of the fact that all detainees in Don Dale had less freedom and amenities during this period because of the damage which had been caused in the Boxing Day disturbance.

359    I do not accept this submission. First, I have rejected the construction of the term “isolate from other detainees” propounded by the respondents that isolation requires “a complete inability for any kind of interaction between the detainees”.

360    Secondly, on any reasonable view, the applicant was, by the direction of Mr Yaxley, separated from his fellow detainees in this period. The extent of the applicant’s isolation from other detainees and the usual activities in Don Dale is evidenced by the fact that he spent the great majority of his time lying on his bed. This was hardly a matter of choice for the applicant. I record that the applicant was not provided with anything at all with which to occupy himself, such as a television, reading material, games, puzzles, a pack of cards or the like. He had literally nothing to do. Although these are not the applicant’s words, his time in the BMU must have been one of mind numbing tedium. The fact that he was able to communicate with the limited number of detainees held in the BMU does not cause me to take a different view. He could not mingle with them or engage in activities with them, and, apart from the times in the exercise yard with Mr McLean, was not even permitted to be in the exercise yard with them.

361    In my view, the fact that from the evening of 27 December 2011 the applicant had Mr McLean in Cell 4 does not alter the view that he was kept in isolation from other detainees in the way discussed earlier in these reasons. That is to say, the circumstance that the applicant could have contact with, and the companionship of, one detainee does not alter the circumstance that he was kept isolated from “other detainees”. He continued to be subject to the same limitations and restrictions referred to earlier, despite being required to share Cell 4 with Mr McLean.

362    Although it is not conclusive of the position, I note that Mr Yaxley’s seeking of approval from Mr Brown for the applicant to be kept in the BMU for more than 24 hours, the terms of his application to Magistrate Wallace and the content of an email to Mr Yaxley from SYO Jamie Clee at about the same time evidenced an understanding by them that the applicant was in “isolation placement”.

363    Accordingly, I conclude that the applicant was kept in isolation in the BMU at Don Dale for the whole of the period commencing at about 3.30 am on 26 December and continuing to 4.45 pm on 28 December 2011.

Was the isolation between 27 and 28 December 2011 for a s 153(5) purpose?

364    The fact that the applicant’s claim for damages relates, in effect, to the period commencing at about 3.30 am on 27 December 2011, seemed to involve an implicit acknowledgement that his detention in the BMU for the 24 hours preceding that time had been for a s 153(5) purpose. However, as the applicant does not make that acknowledgement in respect of the period commencing at 3.30 am on 27 December, it is necessary to make findings concerning the purpose of the detention which preceded it and whether that was the continuing purpose.

365    Mr Yaxley’s evidence indicated that he had a number of reasons for placing the applicant and others in the BMU. These included the highly destructive behaviour of several of the detainees including the applicant, the damage to the Centre, the existence of damaged infrastructure strewn around the Centre which could be “weaponised” by detainees, the requirement for clean-up and repairs, the demonstrated potential of some detainees to injure staff seriously, and avoidance of the risk that the principal participants in the disturbance would engage in, or incite, other detainees to engage in, non-compliant behaviour. Mr Yaxley also noted that the nature of the doors to the “ordinary” bedrooms in Don Dale was such that they could be forced open by a determined detainee, with the consequent risk of escape. Having regard to these matters, he had thought that there was no safe place in Don Dale in which to accommodate the “higher risk” detainees other than in the BMU and had therefore decided that six detainees, of whom the applicant was one, should be held in there. He had discussed these matters with Mr Brown, including the options available for managing these detainees.

366    I accept this evidence. In particular, I accept his evidence that he had thought that the detainees were “likely to be in an escalated state for a number of days”.

367    It was obvious that action had to be taken after the prolonged period of uncontrolled, violent, destructive and threatening behaviour to restore good order at Don Dale, and to make it safe and secure. The applicant’s conduct, in particular his threats and conduct, made it especially appropriate for him to be isolated from other detainees in order to protect other persons, including Mr Yaxley himself, and to promote order and security at Don Dale. Mr Yaxley’s placement of the applicant and the other principal aggressors in the BMU could not reasonably be characterised as having been for other than a s 153(5) purpose. It is understandable that the applicant’s counsel did not submit to the contrary. Mr Yaxley deposed (and I accept) that this was his purpose throughout the period of the applicant’s detention in the BMU.

368    A number of matters provide an objective basis for Mr Yaxley’s continuing opinion:

(a)    Mr Yaxley himself observed that the applicant was “awake and disruptive” until 4.15 am on 26 December;

(b)    a YJO recorded the applicant as having “refused to comply with staff directions” at 10.35 am on 26 December 2011, although the evidence did not indicate the nature of the non-compliance;

(c)    an IOMS report records the applicant having said at 3.10 pm on 27 December that when released “I’m gonna fuck Yaxley up properly this time, that mother fucker is gonna get it”;

(d)    on 27 December 2011 at 10.13 pm, a YJO entered the following report in the IOMS:

Over the past 2 afternoon shifts I have heard the above detainees mention they are going to cause another disturbance as they are under the impression that the prisoner officers and police are too scared to try and stop them because they did not intervene during the last disturbance. It is not clear who exactly said this but it was heard via the intercom while the above detainees mentioned were in isolation.

The list of the detainees to whom the YJO referred included the applicant. The YJO also recorded that the “detainees were openly talking about taking it all away next time and stopping for no authorities”;

(e)    the IOMS contains a report from a YJO that he had heard the applicant and another detainee “threaten to do what they did on Boxing [Day], ie, run a muck as they described and also again next Xmas”.

(f)    the IOMS contains a report on an incident at 9.35 pm on 27 December 2011 in which seven detainees in the BMU had abused YJO Clancy calling her “a dog, slut, arsehole and cunt”, and stated that it was her fault that they were in the cell. One of the detainees said that he knew where YJO Clancy shopped and that he was going to have her bashed. The applicant was one of the group of detainees engaged in this abuse although YJO Clancy was not able to identify specifically whether he had spoken the words set out above;

(g)    the IOMS contains a report of five detainees in the BMU (including the applicant) making sexually offensive remarks to female detainee at approximately 9 am on 28 December 2011;

(h)    the IOMS contains a report by Mr Donald that he had been told at 11.12 am on 28 December 2011 that the detainees in isolation, who included the applicant, have formed a “gang”;

(i)    the IOMS contains a report of six detainees, including the applicant, yelling several times to Mr Lawrie as he was being taken to the toilet “go mad, run a muck Jason”; and

(j)    the IOMS records an incident of prolonged non-compliance by Mr McLean and the applicant on the afternoon of 28 December while they were out of Cell 4 for showers and phone calls. It will be necessary to return to an aspect of this incident but, for present purposes, I consider it of less significance because, by the time it occurred, Mr Yaxley had also sought the Magistrates approval for the transfer to DCC and that transfer occurred very soon afterwards.

369    No doubt some of these incidents were more serious than others and much may have depended upon matters of tone and context and whether they were no more than expressions of bravura. Mr Yaxley was, however, entitled to take the view, as he did, that the position in Don Dale was unstable and that the applicant was not evidencing behaviour consistent with the good order of the Centre. This isolation of the applicant from the compliant detainees was a way of restoring order at Don Dale and of calming the situation down. Accordingly, I have no difficulty in finding that the applicant’s continued detention in the Don Dale BMU until 4.45 pm on 28 December 2011 was for a s 153(5) purpose.

Did Mr Yaxley have the approval of the Director?

370    This issue gives rise to two questions: did Mr Yaxley in fact have the approval of Mr Brown in isolation for more than 24 hours; and, if so, did Mr Brown himself have the authority to give that approval?

Approval by Mr Brown?

371    The documentary evidence does not include any formal approval by Mr Brown, pursuant to s 153(5) of the YJ Act, for the applicant to be kept in isolation for a period beyond 24 hours. Mr Yaxley deposed, however, that during 26 and 27 December 2011, he had been in regular contact with Mr Brown concerning the circumstances created by the Christmas night disturbance and said “I would have asked for and received approval to keep the detainees housed in the BMU … for up to 72 hours”. He also deposed:

[83]    … While I do not recall the specifics of the conversations, I recall that the continuing placement of detainees in the BMU was discussion on a number of occasions.

372    This manner of expression, and the absence of any documentary evidence of the approval in accordance with reg 72(3)(g), gives rise naturally to a concern as to whether Mr Brown had in fact given his approval. However, Mr Brown, who was plainly an honest witness, confirmed that he had spoken to Mr Yaxley two or three times each day after leaving Don Dale on the morning of 26 December 2011. In those conversations, they had discussed, amongst other things, the need for IMPs for the “main aggressor detainees” and their appropriate placement.

373    Other evidence indicates that the length of time which the detainees were spending in the BMU was being monitored. It is also evident that the imminent expiry of the 72 hour limitation was a matter prompting Mr Yaxley’s application for approval of the applicant’s transfer to DCC. These matters evidence a consciousness by Mr Yaxley of the limitations imposed by s 153(5).

374    These matters in combination satisfy me that Mr Yaxley did seek and obtain the approval from Mr Brown for the continued placement of the detainees including the applicant, in the BMU.

375    I also infer that the absence of a written approval may be explained, at least in part, by the pressures on Mr Yaxley on 26 December 2011 and following. Apart from managing the detainees, he had to address and deal with multiple matters in the aftermath of the disturbance, including arranging the clean-up of Don Dale; arranging repairs and/or replacements by electricians, plumbers, glaziers, painters and locksmiths; replacing the damaged equipment and materials which were needed for ongoing operations; settling down, and attending to the welfare of, the detainees in the damaged detention centre, including those who did not participate in the disturbance; attending to the welfare and morale of the staff (some who had been emotionally affected by their experience); organising the rostering arrangements in order to provide increased security; reviewing matters bearing on the security of Don Dale and the safety of staff and detainees; and dealing with the Northern Territory Government in relation to the disturbance. There are references to these matters in the documentary evidence. No doubt Mr Yaxley did not have to attend to each matter personally, but it is reasonable to infer that they would have occupied a reasonable amount of time and provide a ready explanation of why he may not have sought in writing the approval of Mr Brown for the continued detention of the applicant in the BMU. That is not to say of course that these matters provided a lawful justification for Mr Yaxley not making a written record of Mr Brown’s approval, as required by reg 72(3)(g) of the Regulations.

The authority of Mr Brown

376    The applicant disputed that Mr Brown had been acting in the position, and performing the functions, of the Director while Mr Middlebrook was on leave and so able to give Mr Yaxley the necessary authority.

377    The applicant’s submissions as to the authority of Mr Brown as Director were brief:

The Director at the time was Mr Ken Middlebrook. He held an appointment under the Prisons Act and could appoint a delegate under s 7, but only in respect of powers and functions under the Prisons Act, not the YJ Act.

378    The applicant is correct in his submission concerning the effect of s 7(1) of the Prisons Act as it provides:

The Director may delegate any of the Director’s powers and functions under this Act to a person.

379    However, the YJ Act in s 216 (to which counsel for the applicant did not refer) contains its own power of delegation:

The Minister or Director may delegate in writing to a person any of his or her powers and functions under this Act.

380    The respondents did not adduce evidence of a delegation in writing of Mr Middlebrook’s powers and functions to Mr Brown. They also accepted that there was no documentary evidence of Mr Brown having been appointed as Acting Director. The respondents relied instead on s 41 of the Interpretation Act 1978 (NT) which provides:

41    Occasions for exercise of powers etc.

(1)    Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2)    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.

381     In JB v NT, Southwood J and Graham AJ (with whom Riley AJ agreed) noted that there were two possible interpretations of s 41(2), at [91]-[92]. The first is that the reference to “the person for the time being holding or occupying or performing the duties of the office, position or designation” is a reference to a person validly appointed or validly designated as such. The second, as I understand their Honours’ reasons, is that the term refers to the person who, for the time being, is in fact “holding or occupying or performing the duties of the office, position or designation”. Their Honours did not express a concluded view about these alternatives.

382    In my view, s 41(2) is to be understood in the light of subs (1). Just as a power may be exercised, and a duty performed, from time to time as occasion requires, the powers or duties conferred or imposed on the holder of an office, the occupier of a position and a person holding a particular designation may be exercised or performed, as the case may be, by the person who, from time to time, holds that office, occupies the office or performs the duties of that office, position or designation. The reference in the concluding clause in s 41(2) to the person “performing the duties’ of the office, position or designation is, to my mind, a legislative indication that, at least in respect of that alternative, the reference is to the person in fact performing those duties.

383    Moreover, having regard to the evident purpose of s 41(2), there is no need for it to be construed strictly. Like Southwood J and Graham AJ, I consider that s 41(2) is a recognition of “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 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”.

384    Apart from Mr Brown’s own evidence, which I accept, there is other evidence that in late December 2011 and early January 2012 Mr Brown was performing the duties of the office of Director in Mr Middlebrook’s absence. Mr Middlebrook said that it was his practice, before going on leave, to discuss arrangements with the Chief Executive of the Department of Justice to whom he reported directly; that there were three persons who were commonly appointed in his absence (so as to achieve a sharing of the relieving responsibility) of whom Mr Brown was one; that he had arranged for Mr Brown to act in his role during his absence in late December 2011 and early January 2012; and that he had understood at the time that Mr Brown had been given a formal delegation. There was no challenge to Mr Middlebrook’s evidence about these matters.

385    While there was in fact no formal delegation, the designation of Mr Brown to act as Acting Director in Mr Middlebrook’s absence was recognised in an email on 21 December 2011 from Ms Gerdes, the Executive Services Coordinator in the Correctional Services Section of the Department of Justice to a number of persons, including the Superintendents of DCC, Don Dale and ASCC:

Margaret Anderson will be away from late afternoon on 22 December 2011 and returning to work on the 5 January 2011 (sic). Phil Brown will be the Acting ED during this period.

Margaret will recommence as the Acting ED on 5 January 2011 (sic). Ken Middlebrook is back as ED from 16 January 2011 (sic).

386    Accordingly, I am satisfied that Mr Brown was performing the duties of the Director during Mr Middlebrook’s absence, with the consequence that s 41(2) authorised him to give Mr Yaxley the approval required by s 153(5).

387    The conclusion makes it unnecessary to consider the possible application of the principles discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93], a matter about which the parties did not make any submissions.

Conclusion regarding the December detention in the BMU

388    For the reasons set out above, while I consider that the applicant’s detention in the BMU was isolation to which s 153(5) refers, I am satisfied that the respondents have established that the whole of that period of detention was authorised. As the foundation for the applicant’s claim does not exist, it is not necessary to consider the remaining elements of his claim of false imprisonment in respect of that period.

The claim of false imprisonment at DCC: 28 December 2011-2 January 2012

389    Although I set out the full text of s 154 earlier in these reasons, I will for convenience repeat relevant extracts:

154    Temporary removal of detainee to prison

(1)    If the superintendent of a detention centre is of the opinion that:

  (a)    an emergency situation exists; and

(b)    a detainee should be temporarily transferred to a prison to protect the safety of another person,

the superintendent may apply by telephone to a magistrate for approval to transfer the detainee.

…

(3)    If the magistrate approves the transfer, the superintendent may arrange for the detainee to be transferred from the detention centre to a prison.

…

 (7)    The period of transfer of the detainee must not exceed 24 hours.

(8)    However, the superintendent may apply to a magistrate for an extension of the period of transfer.

…

390    Section 154 provides for the temporary transfer of a detainee to a prison. It requires three conditions to be satisfied before such a transfer may be made:

(a)    the superintendent considers that an “emergency situation” exists;

(b)    the superintendent considers that the detainee should be transferred temporarily to a prison to protect the safety of another person; and

(c)    a magistrate, on application by the superintendent, approves the transfer.

391    Although s 154(8) does not say so expressly, it is implicit that the same conditions must exist for an extension of the period of transfer.

392    As noted earlier, the term “emergency situation” is not defined in the YJ Act.

393    In his pleaded claim, the applicant seemed to impugn the validity of his transfer to the DCC and of his continued detention there because “no emergency situation existed” – see [72] and [73] of the 6SC. However, in the final submissions, lead counsel for the applicant confirmed that the applicant did not challenge the validity of the approvals (expressed as orders) of the magistrates and did not challenge the existence of the preconditions required by s 154 for the applicant’s transfer to DCC. The applicant’s claim therefore in respect of his detention at DCC was that it was unauthorised because the manner in which he was held at DCC constituted the isolation from other detainees to which s 153(5) refers and that isolation had not been approved by the Director.

394    Initially, the applicant was kept in a cell in C Block but at 8.15 am on 31 December 2011, he was moved to B Block. An email from the Acting Chief Prison Officer to Mr Yaxley on the morning of 31 December 2011 indicates that the applicant had been moved from C Block to B Block because he had, on the previous day, been calling out to other prisoners and visitors.

395    The conditions in which the applicant was detained in C Block and B Block were in substance the same. Mr Irwin, a Senior Corrections Officer, described Room 5 in B Block as containing a bunk, a toilet, a hand basin with a push-button tap, a camera behind a protector in one corner, solid concrete walls, and a steel door with a viewing window. The cell had an area of 15 m2 (5 m x 3 m). It was not air conditioned. Mr Irwin described Cell 4 in which the applicant was accommodated in C Block in similar terms. These descriptions were similar to those of the applicant.

396    The applicant was kept throughout in the cells by himself on the regime of a prisoner at risk of self-harm. This was not because the applicant was regarded as being at such a risk but because of his “behaviour issues”. This meant that he was subject to observation every 15 minutes and given “suicide watch clothes”, namely, a gown and shorts. Nearly all of the observations recorded in the “At Risk” Observation Sheet record the applicant as “lying on bed” or “moving around cell”, or an equivalent.

397    The Observation Sheet records the applicant leaving his cell on only eight occasions: four times for “hygiene” or a “shower”, twice to go to the Medical Clinic, once because his “Aan and Aunty” were visiting, and once to be relocated to B Division. If the applicant was allowed out at other times for exercise, these were not recorded. He was not provided with any means by which to occupy himself, had no means of telling the time and did not speak to other detainees. The applicant’s description to Mr Ralph of feeling as though “a day passed like a year” when he was in isolation seems particularly apt in relation to his imprisonment at DCC.

398    In these circumstances, there is no difficulty in concluding that, as a matter of fact, the applicant was kept at DCC in the kind of isolation to which s 153(5) refers, if that provision was otherwise applicable.

399    The confinement of the applicant’s case in the closing submissions means that the issue with respect to the applicant’s detention at DCC turns on the statutory regime applicable to that detention. The applicant claimed that the regime continued to be that contained in the YJ Act. The respondents contended that it was the regime in the Prisons Act.

400    The elements of the submission of lead counsel for the applicant on this topic were:

(a)    the Prisons Act does not contain any indication that a youth transferred to a prison is “transformed” into an adult prisoner;

(b)    section 154 of the YJ Act does not contemplate the “transformation” of a youth detainee into an adult prisoner; and

(c)    section 157(2) of the YJ Act evinces a legislative intention that prison officers, even when within the confines of a prison, are authorised to undertake the duties, functions and responsibilities of the superintendent with respect to youth detainees.

401    Section 157(2) of the YJ Act 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).

Counsel’s submission, as I understood it, was that, because both s 154(1) and s 157(2) operate in relation to an “emergency situation”, it should be inferred that, when in such a situation a detainee is transferred to a prison, the YJ Act, and in particular the limitations on the powers of a superintendent, continue to apply.

402    In my view, the submissions of the respondents on this issue should be accepted. In the first place, Div 2 of Pt 8 of the YJ Act makes it reasonably clear that the responsibilities of a superintendent exist in relation to the detention centre – see ss 151-153 in particular. A superintendent is not given responsibilities or functions in respect of youths which are independent of their detention in a detention centre.

403    Secondly, there is no indication that a superintendent has powers with respect to the management or placement in the prison to which a detainee has been transferred pursuant to s 154.

404    Thirdly, the Prisons Act does not contain any indication that a youth detainee transferred to a prison is to be subject to the same regime as existed in the detention centre. Section 157(2) of the YJ Act cannot reasonably be understood as such a provision as it is more naturally understood as referring to the circumstance in which a prison officer is called upon to provide assistance in, or about, the detention centre itself. Moreover, s 157(2) is directed to the powers of individual prison officers and not to obligations of the Director with respect to the conditions in which youth detainees are kept in prison.

405    Further, with limited exceptions, the Prisons Act does not distinguish between youths and adults in a prison. It is to be remembered that s 83 of the YJ Act authorises the Youth Justice Court and the Supreme Court to order that a youth serve a term of detention or imprisonment, with the implication that a youth sentenced to imprisonment will be subject to the regime for which the Prisons Act provides. Section 23 of the Prisons Act also contemplates that youths may be kept in prison because it provides for circumstances in which the Minister may direct the transfer of a youth prisoner to a detention centre.

406    Accordingly, I conclude that the management or placement of the applicant while he was in DCC was subject to the Prisons Act and not the YJ Act. The Director’s powers in relation to the applicant on his transfer to DCC were those contained in s 6(2) of the Prisons Act and not those in s 153 of the YJ Act. Section 6(2) provides:

(2)    Subject to this Act and the directions of the Minister, the Director has the control of all prisons and police prisons, and the custody of all prisoners, in the Territory.

407    In the exercise of those powers in relation to the applicant, the Director was not obliged to observe the restrictions and limitations on detention imposed by the YJ Act but had a discretion, to be exercised reasonably, in relation to the placement of the applicant within the DCC. Counsel for the applicant did not seek to invoke the implied condition of reasonableness in the exercise of the s 6(2) power.

408    This means that, while the applicant proves isolation of a bleak kind while he was in DCC, that detention was not unlawful. Accordingly, the applicant’s claim of false imprisonment in respect of the period from 28 December 2011 to 2 January 2012 must fail.

The claim of false imprisonment in the BMU: 2-9 January 2012

409    As previously noted, on his return to Don Dale, the applicant was again placed in the BMU. He pleads that the whole of the period until 9 January 2012 when he returned to a normal room constituted isolation for the purposes of s 153(5). The applicant’s evidence that he was in the BMU for “about four weeks” was wildly inaccurate.

410    Similar issues as were discussed in relation to the claim concerning the period between 27-28 December 2011 arise in respect of this period. I will address these in turn.

Did the detention in the BMU between 2 and 9 January 2012 constitute isolation?

411    In this period the applicant was placed in Cell 2. Until the morning of 5 January 2012, the Shift Changeover Check List sheets indicate that there were two detainees in Cell 2 but thereafter the applicant was its sole occupant until the night of 8 January 2012 when he was joined by another detainee.

412    The number of other detainees in the BMU between 2 and 9 January 2012 varied between five and nine.

413    The BMU Placement Journal for the period 2-9 January 2012 indicates that the applicant’s placement in the BMU was pursuant to a “management plan”. The Journal for 4 January 2012 reports “maximum isolation units morning procedure followed” which indicates an understanding by those involved that the applicant was undergoing a form of isolation. On 5 January 2012, the applicant had a period out of the BMU “for integration”. The applicant thought that he had not had any visitors but that is contradicted by the documentary evidence which indicates that he had visits from his family on the afternoons of 4 and 5 January 2012. The evidence did not disclose what the “integration” encompassed, but the use of the term tends to suggest that, while in the BMU, the applicant was isolated from other detainees, rather than integrated in the activities and routines of Don Dale.

414    On the basis of this record, Mr Yaxley deposed that, after 5 January 2012 “Marley was allocated reintegration time, which meant he was permitted to socialise with other detainees outside the BMU cohort as part of the progressive reintegration”. However, there is no reference to this in the tendered records, nor to any reviews or assessments of the applicant’s progress in the reintegration. In particular, there is no reference to reintegration steps in the notes of the case workers. I considered the absence of records surprising as, had there been reintegration of the kind to which Mr Yaxley referred, I would have expected some documentary references to it. I also note that there is no reference to periods of reintegration in the IMP developed on 28 December 2011.

415    I am satisfied that the applicant was placed, and kept, in the BMU in accordance with that IMP. I am also satisfied that, apart from the matters just mentioned, the regime which applied to the applicant while in the BMU in this period, and the conditions in which he was held, were the same as those which applied between 26 and 28 December 2011. The respondents did not adduce evidence of any relevant difference. I note again, that in relation to the period 26-28 December 2011, Mr Yaxley and others had regarded the applicant’s detention as isolation.

416    I conclude, for the same reasons as given in respect of the period in the BMU between 26 and 28 December 2011, that the applicant was in this period isolated from other detainees in the manner to which s 153(5) refers. This includes the periods in which there was a second detainee in the applicant’s cell.

Was the isolation between 2 and 9 January 2012 for a s 153(5) purpose?

417    Mr Yaxley did not depose positively to the purpose of the applicant’s detention in the BMU from 2 January 2012. He did say that the applicant had been accommodated in the BMU on an IMP and that the aim for detainees kept there was to “facilitate their re-entry into the mainstream accommodation”. That this was an aim in respect of the applicant’s detention in the BMU is confirmed by an email which Mr Yaxley circulated to the Don Dale staff on 29 December 2011 (at that time the applicant was in the DCC but it can be taken to have been also applicable to him):

All staff that has contact with the detainees that are on management plans must write an incident report for the following;

•    Non compliance and not following staff direction whilst out for half hour break.

•    Poor behaviour in the cells e.g. blocking the camera with food paper or cards etc.

•    Verbally threatening or abusing staff whilst in the cell or on their half hour break.

•    Displaying positive behaviour

The incident report must be clear and concise detailing the facts.

Please be clear that the intention is for the detainees on the Management Plans to reintegrate back to their rooms, this will be entirely dependant on the individual detainee's behaviour and at the discretion of management. Whilst the detainees are individually out on their reintegration please encourage the detainees that are listening and being compliant and cooperative to start thinking about making the right choices to return to the mainstream population.

418    Mr Yaxley also deposed:

[99]    Also throughout this time, repair works were being completed throughout the detention centre to repair damage caused during the Boxing Day Incident. Detainees could not get full use of the courtyard area until all of those works were completed. This hindered the detainees classified as Maximum and Admission, in comparison to those on lower classification, in the Medium Section, who had no restrictions.

I understood this to be in the nature of a reason, or an additional reason, why the applicant was kept in the BMU.

419    Earlier, I expressed my conclusion that a review of the 28 December 2011 IMP had not been undertaken and that a new IMP had not been developed. I add that, there is no evidence that, upon the applicant’s return to Don Dale, an up to date assessment was made of him, his behaviour or of the needs of the detention centre concerning him. Mr Yaxley did not claim that there had been such an assessment, as he said only that the IMP “would have” been reviewed at or around that time and a new plan prepared and circulated.

420    The Security Cell Placement Journal for the period 2 to 9 January 2012 provides only limited information. It can be said, however, that it does not contain any comments adverse to the applicant. The Court was not provided with detainee behaviour reports relating to the applicant for this period. I note, however, that the Seven Day Behaviour report for the week commencing 9 January 2012, when the applicant was back in his room, described his behaviour as “acceptable” and said that he was “well behaved and compliant”. It seems probable that there had been at least some improvement in the applicant’s behaviour even before 9 January 2012.

421    Mr Yaxley also deposed:

[98]    Also throughout this time, repair works were being completed throughout the detention centre to repair damage caused during the Boxing Day Incident. Detainees could not get full use of the courtyard area until all of those works were completed. This hindered the detainees classified as Maximum and Admission, in comparison to those on lower classification, in the Medium Section, who had no restrictions.

As can be seen, this evidence was very generalised, limiting the weight which can be given to it.

422    The respondents did not adduce evidence of any change in circumstances, or of any assessment, which had led to the decision on 9 January 2012 to remove the applicant from the BMU back to a normal cell.

423    In all these circumstances, I am not satisfied that the respondents (who, as will be seen, have the onus of establishing the lawfulness of the isolation) have shown that the applicant’s isolation in the BMU in the period from 2 to 9 January 2012 was to “protect the safety of another person” or “for the good order or security” of Don Dale. It may have been but the evidence does not satisfy me that that was so especially as, at the commencement of the period, seven days had elapsed since 26 December 2011 and the applicant had had the salutary experience of isolation and imprisonment at the DCC.

Was the detention in the BMU between 2 and 9 January 2012 authorised by the Director?

424    Counsel for the respondents drew Mr Brown’s attention to Mr Yaxley’s email of 2 January 2012 to various recipients when informing them that the applicant and Mr McLean would be returning to Don Dale that day. Mr Yaxley said in the email that the applicant, Mr McLean and Mr Lawrie would be “on the Intensive Management Plan from the security cell area”. Mr Brown gave the following evidence in chief in relation to the email and IMP:

XN:        Did you approve of the plan outlined by Mr Yaxley in this email?

A:           No.

XN:         When I asked that question, I didn’t mean by that, did you formally authorise Mr Yaxley to take these steps. I mean, did you think this was an acceptable proposal?

A:           Yes.

425    Mr Brown’s attention was then drawn to a report by Mr Yaxley to him on 4 January 2012 in which Mr Yaxley had said “all the detainees involved with the riot have been on [IMPs] from either the security cell or their normal room that are continuing to date and into the future with assessment dates on the 9/1/12”. He then gave the following evidence:

XN:        Did you approve of this? -

A:          I may have. I don’t recall.

XN:        Is there any reason to think that you did not approve of this?

A:          No.

XN:        If you had not approved this, would you have taken some steps?

A:           Yes.

XN:        What would you have done?

A:         I would have really asked the superintendent [for] justification on why we need to extend their assessments to the 9th of [January].

XN:       Did you do that?

A:         No.

XN:       Were you talking to Mr Yaxley on a daily basis around this time, for January 2012.

A:          Yes, I was.

XN:         So sitting here today you now can’t recall having the discussion with him where you told him you approved of this? –

A:           I don’t recall.

426    Counsel submitted that this evidence supported the inference that Mr Brown had given the requisite approval.

427    As is apparent in the quoted passages, Mr Brown said expressly that, while he had thought Mr Yaxley’s plan in relation to the applicant and Mr Lawrie was acceptable, he had not approved it. He could not say positively that he had approved the continuation of “all the detainees involved with the riot” on IMPs. At its highest, he could say only that he had not asked for a justification which he would have sought had he not given an approval. There are unsatisfactory aspects of this evidence (it was adduced by leading questions), and it seemed to depend on an inference drawn from a matter about which Mr Brown was surmising, rather than having a definite recollection. It is pertinent that Mr Brown was not asked whether he had considered the purposes of the isolation, or its period. He gave no evidence of any consideration of the 72 hour limitation on isolation imposed by s 153(5) in respect of this period. Nor for that matter did Mr Yaxley.

428    Even if those issues are put to one side, as noted earlier, Mr Brown ceased to perform the duties of Director on 5 January 2012 and Ms Anderson recommenced as the Acting Director. Mr Yaxley did not claim that he had sought approval from Ms Anderson in Mr Middlebrook’s absence and there is no evidence that he had done so. Even if Mr Yaxley had sought approval from Mr Brown or Ms Anderson, the maximum period for which they could have given approval expired at 2.40 pm on 5 January 2012.

429    There is no indication in the evidence that there was any advertence to the 72 hour maximum in respect of the period 2-9 January 2012.

430    I conclude that the respondents have not established a lawful justification for the applicant being kept in isolation for any of the period between 2 and 9 January 2012.

Unauthorised isolation in the BMU and false imprisonment

431    False imprisonment is often described as any wrongful total restraint on the liberty of the plaintiff which is directly brought about by the defendant: see, for example, Trindade FA, ‘The Modern Law of False Imprisonment’, in Mullany N (ed), Torts in the Nineties (Sydney, 1997) 229. The restraint is wrongful if it is without lawful justification.

432    In State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331, the Full Court of the Supreme Court of South Australia (Doyle CJ, Duggan and White JJ) said at [282]:

[T]he factual essence of the cause of action is the placing of a “total restraint” on the plaintiff’s movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation.

433    In Darcy v State of New South Wales [2011] NSWCA 413, Whealy JA, with whom Allsop P (while adding some reasons of his own) and Beazley JA agreed, said of the tort of false imprisonment:

[141]    In the 10 th edition of Fleming's The Law of Torts the learned authors say (at p 36 [2.80]):

The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is.

[142]    It is further observed, in the same paragraph, that the action was probably at first designed to furnish redress against wrongful incarceration in the colloquial sense, but that it has long outgrown these simple beginnings.

[143]    The elements of the modern tort of false imprisonment require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. In Troubridge v Hardy (1955) 94 CLR 147 at 152 these principles were explained by Fullagar J in the following terms:

The [appellant] did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the [respondent] was "acting in his office as a member of the police force". The mere interference with the [appellant's] person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the [respondent] to justify, if he could, by reference to his office or otherwise.

[144]    The restraint imposed must be a complete deprivation of, or a restraint upon the plaintiff's liberty and it must be actual rather than potential … The restraint must be upon a person's liberty to come and go and must be against his or her will ...

[145]    Modern authority confirms that the factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint, however, need bear no similarity to what one would normally describe as imprisonment. It has been said that the law has moved on from any such limitation …

(Citations omitted)

434    The tort is a species of the tort of trespass to the person and is accordingly concerned with direct and intentional forms of harm: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 per Kirby J (in dissent) at [137]. Later, at [141], Kirby J said:

[T]he principal function of the tort is to provide a remedy for "injury to liberty". It is not, as such, to signify fault on the part of the defendant. Damages are awarded to vindicate personal liberty, rather than as compensation for loss per se.

(Citations omitted)

435    Once the imprisonment is established, it is for the respondent to prove that it was lawfully justified: Watson v Marshall and Cade [1971] HCA 33, (1971) 124 CLR 621 at 626; Ruddock v Taylor at [64], [140]; Darcy at [143]. In Darcy, Allsop P described the lawful justification for the detention as being of “the utmost importance”, having regard to the importance of the liberty of the subject, at [2].

436    The question of whether persons lawfully imprisoned may sue for false imprisonment by reason of their unlawful placement in a particular prison or in part of a prison has produced different judicial responses. In some cases, the circumstance that such a prisoner is already subject to total restraint has been thought to mean that any further restraint cannot constitute the form of restriction on movement required for the tort of unlawful imprisonment. However, there has been some recognition that the further imprisonment of a lawfully detained prisoner may constitute unlawful imprisonment.

437    Before referring to the Australian authorities, it is convenient to refer briefly to authorities in other jurisdictions.

438    In Cobbett v Grey (1850) 4 Exch 729; (1850) 154 ER 1409, which is cited in some of the modern authorities, it was held that a prisoner who had been compelled to go to a less salubrious part of the prison in which prisoners in a different category were required by law to be confined had been unlawfully imprisoned.

439    However, the modern view in the United Kingdom has been that the unlawful placement of a prisoner within a prison does not provide the basis for a claim of unlawful imprisonment. In R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58, the issue was whether a prisoner who had been segregated from other prisoners otherwise than pursuant to r 43 of the Prisons Rules (referred to earlier in these reasons) and therefore unlawfully could bring an action for false imprisonment. In a second appeal (Weldon v Home Office) heard at the same time as Ex parte Hague, Ralph Gibson LJ had held in the Court of Appeal [1992] 1 AC 58 at 139:

There is no reason apparent to me why the nature of the tort [of false imprisonment], evolved by the common law for the protection of personal liberty, should be held to be such as to deny its availability to a convicted prisoner, whose residual liberty should, in my judgment, be protected so far as the law can properly achieve unless statute requires otherwise.

440    However, in the House of Lords, a different view was taken. Lord Bridge (with whom Lords Ackner, Goff and Lowry agreed) noted that s 12(1) of the Prison Act (UK) provided that a person sentenced to imprisonment “may be lawfully confined in any prison”. His Lordship said that s 12(1) provided lawful authority for the restraint of the prisoner within the defined bounds of the prison by the governor of the prison and by any prison officer acting with the governor’s authority, at 162. Lord Bridge used the term “restraint within … defined bounds” with a reference to the description of false imprisonment by Aitkin LJ in Meering v Graham-White Aviation Co Ltd (1919) 122 LT 44 at 54. Lord Bridge then continued at 162-3:

Can the prisoner then complain that his legal rights are infringed by a restraint which confines him at any particular time within a particular part of the prison? It seems to me that the reality of prison life demands a negative answer to this question. Certainly in the ordinary closed prison the ordinary prisoner will at any time of day or night be in a particular part of the prison, not because that is where he chooses to be, but because that is where the prison regime requires him to be. He will be in his cell, in the part of the prison where he is required to work, in the exercise yard, eating meals, attending education classes or enjoying whatever recreation is permitted, or in the appointed place and at the appointed time and all in accordance with a more or less rigid regime to which he must conform. Thus the concept of the prisoner’s “residual liberty” is a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to be quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another.

441    In his separate but concurring speech (with which Lords Ackner, Goff and Lowry also agreed), Lord Jauncey said that prisoners do not have a “residual liberty” vis a vis the Governor of the prison, which amounts to a right protectable in law, at 176. His Lordship held that the segregation of the prisoner altered the conditions under which he was detained but had not deprived him of any liberty which he had not already lost when confined, at 176. His Lordship distinguished Cobbett v Grey on the basis that it turned on provisions providing for the strict classification of prisoners and statutory requirements as to the places in which they could be confined.

442    However, all the speeches emphasised the importance of the lawful justification for the further “imprisonment” within the prison. It was accepted that there may be circumstances in which a prisoner subjected to a form of unauthorised confinement within a prison may be able to sue for false imprisonment. The prisoner locked in a shed by a fellow prisoner, and a prisoner subjected to restraint by prison officers who know they have no lawful authority for the restraint were given as examples: by Lord Bridge at 164; Lord Ackner at 166-7; and Lord Jauncey at 178.

443    Lord Jauncey also noted, at 178, that while the tort of false imprisonment requires total deprivation of liberty, the liberty in question is “such liberty as the individual presently enjoys and not deprivation of total liberty, namely, liberty which is otherwise totally restricted”.

444    In R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148, the question was whether a long term psychiatric patient was lawfully held in segregation in a high security hospital, having regard to the terms of a non-binding Code of Practice. That question was answered in the affirmative by the majority with the result turning on a close analysis of the legislative regime, the status of the Code of Practice, and European Conventions. However, Lord Steyn, who with Lord Brown was in dissent, was critical of the decision in Ex parte Hague, saying that, even in respect of convicted prisoners, it should no longer be regarded as authoritative, at [42].

445    Ex parte Hague was followed in Prison Officers Association v Iqbal [2009] EWCA Civ 1312; [2010] 2 All ER 663.

446    In New Zealand, the Court of Appeal held in Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; (2002) 1 NZLR 616 that habeas corpus was not available to prisoners seeking release from maximum security or segregation in isolation. The Court said, at 633, that “a change to the conditions on which an inmate is being detained either by segregation, reclassification or transfer to another institution does not create a new detention” for the purposes of the writ of habeas corpus.

447    In Canada, in Miller v The Queen (1985) 24 DLR (4th) 9, the Supreme Court of Canada considered whether a writ of habeas corpus could be issued to review the validity of the form of detention in which a prisoner was held. After an extensive review of the authorities, Le Dain J (in the judgment of the Court) held at 30-1:

Confinement in a special handling unit, or in administrative segregation … is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeas corpus should not be available for that purpose. I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.

448    The reasoning in Miller v The Queen was followed in May v Ferndale Institution (2005) 261 DLR (4th) 541 in relation to the availability of habeas corpus to prisoners who complained of the lawfulness of their transfer from a minimum security institution to a medium security gaol.

449    In Australia, issues relating to the availability of habeas corpus and false imprisonment in relation to the unlawful placement of a prisoner within a prison have arisen in a number of contexts. It is not necessary to refer to them all.

450    In Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622, 50 inmates of New South Wales prisons brought proceedings for relief designed to ensure that they would have access to condoms while in prison. Sheller JA, in the judgment of the Court of Appeal in NSW, referred to Ex parte Hague, to Miller v The Queen and to other authorities but concluded that it was unnecessary for the resolution of the prisoners’ claim to consider whether a prisoner enjoys a right of “residual liberty” vis a vis the State and whether the writ of habeas corpus runs when a person is held illegally in a prison within a prison, at 633.

451    In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, Hutley JA (with whom Moffitt P and Glass JA agreed) said at 328 in his discussion of the rights provided to prisoners under the Prisons Act 1952 (NSW) (Prisons Act (NSW)) that:

Section 22, which authorises the segregation of prisoners under the conditions there specified, implies that prisoners will not be segregated, unless those conditions are fulfilled. Whether any segregation of a prisoner not authorised by section 22 implies rights to a civil remedy sounding in damages does not arise in this case, because we are of the opinion there was in fact no segregation.

452    In Sleiman v Commissioner of Corrective Services [2009] NSWSC 304, Adams J considered whether a grant of leave under to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to amend proceedings in which the plaintiff impugned the validity of his placement in the high risk management unit (HRMU) at the Goulbourn Prison. His Honour reviewed several of the authorities referred to above, and others. These included the unreported judgment of Collins v Downs (NSWSC 14 December 1982) in which Roden J considered an application brought by the Commissioner for Corrective Services and others to strike out a statement of claim made by a prisoner who claimed to have been unlawfully detained in segregation in Goulbourn gaol in April and June 1979. The prisoner had alleged that that form of detention was not authorised by s 22 of the Prisons Act (NSW), which authorised the segregation of prisoners when certain conditions were filled. Adams J noted that Roden J had rejected the contention that, once a person is lawfully imprisoned, nothing his gaoler does with him during the authorised term of that imprisonment can constitute a trespass or false imprisonment. Roden J had concluded that “there is a right of action for false imprisonment available to a convicted prisoner if, during the term of the sentence imposed upon him when his imprisonment would otherwise be lawful, he is wrongly subjected to imprisonment of a nature or in a place not authorised”.

453    In Sleiman, in granting the plaintiff leave, Adams J concluded:

[60]    So far as prisons are concerned, the Parliament has instituted a structure of laws to govern the responsibilities of those to whom is delegated the custodianship of prisoners of the State. They are given great power and considerable freedom of action. But it is not untrammelled. It is self evident that the isolation of a person from communication with others is a severe and possibly dangerous step. It must be done with considerable care and only when it is truly necessary. It cannot be doubted that for these reasons the Parliament has made specific provision in the Act dealing with the exercise of this power. This demonstrates, amongst other things, that segregated custody is regarded by the Parliament as an exceptional form of custody and requires a unique system of implementation and control, in particular by necessitating a report to the Minister, regular reviews and giving the prisoner the right to apply to the Review Council for a review. In virtually every other aspect of managing a prisoner’s custody the Commissioner has almost unfettered control and authority (albeit subject to various forms of supervision) except where the prisoner is to be segregated.

[61]    Having regard to the exceptional character of segregated custody so far as the well being of the prisoner is concerned and the unique regime instituted by the Parliament as a safeguard, it is obvious that compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law.

[62]    This case is about what the law will do to require obedience to and redress departures from the obligations it imposes. It has nothing to do with the personal merits, or lack of them for that matter, of the prisoner. The law is blind to such considerations. The law will be enforced, not because of what is owed to the prisoner, but because of what it owes itself and the community it serves.

454    In State of New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566, the Court of Appeal in NSW (sitting as a Court of five) considered an appeal against an award of damages for false imprisonment to an offender who, by reason of chronic mental illness, had been made subject to a limiting term pursuant to the Mental Health (Criminal Procedure) Act 1990 (NSW). Part of limiting term included an order that the plaintiff be detained at a hospital. Instead, she was held for a time in a prison hospital which had not been gazetted as a hospital. The State argued that the plaintiff, having lost her entitlement to liberty at the relevant time, could complain only about the place in which she was detained. It submitted that that was a question as to the conditions of detention, a matter not going to the lawfulness or unlawfulness of the detention itself, for the purpose of the tort of false imprisonment.

455    All members of the Court held that the tort of false imprisonment was established, essentially for the reason that an order of a court entitling the State to deprive a person of his or her liberty does not justify detention in any place the State, or its relevant officers, deems appropriate, desirable or convenient, and that the lawfulness of the detention depends upon compliance with the terms of the order bringing it about – see Basten JA at [54].

456    Bathurst CJ regarded Ex Parte Hague as consistent with the Court’s conclusion as the effect of s 12(1) of the Prison Act (UK) under consideration in that case was, like s 27 of the Mental Health (Criminal Procedure) Act, a statutory requirement as to where prisoners should be confined, at [5].

457    Basten JA referred to Ex Parte Hague, Cobbett v Grey and to the judgment of Roden J in Collins v Downs and said at [61]:

… To be imprisoned in the wrong part of a prison, where there is strict classification, according to law, is a false imprisonment for which damages may be awarded. There is nothing in Hague which throws doubt upon that distinction: on the contrary, it was upheld.

458    In SU v The Commonwealth [2016] NSWSC 8, the question was whether Indonesian nationals who had been arrested unlawfully and held in detention were entitled to damages for unlawful imprisonment for the period continuing from their arrest until the time that the detention became lawful (pursuant to a court order). By reason of s 189 of the Migration Act 1958 (Cth), the plaintiffs could have been held lawfully in immigration detention during the same period. Hamill J concluded:

[47]    What is clear is that the incarceration of the plaintiffs in the cells at the Sydney Police Centre was a direct result of the decision to (unlawfully) arrest them. It is not to the point that a police station is one of the places where a person might lawfully be held in immigration detention pursuant to s 5 of the Migration Act. The plaintiffs were not detained in the cells at the Sydney Police Centre as a result of being in immigration detention. They were there to be arrested, charged and dealt with as remand prisoners. In this respect, the legal nature of their detention was different. One of the residual liberties that the plaintiffs enjoyed was the right to be dealt with according to the law. This included the right not to be arrested contrary to the provisions in s 3W. Nothing in the Migration Act alters the requirements for a lawful arrest.

[48]    Accordingly, they were wrongly imprisoned and there will be a judgment for each of the plaintiffs.

459    These authorities indicate the need for close attention to the statutory regime and to the term of the order for detention.

Limits on the authorised detention of the applicant

460    When imposing the sentence of detention on the applicant on 23 August 2011, Martin CJ was exercising the power vested in the Supreme Court by s 82 of the YJ Act, that is, the power to order that a youth “be detained in a detention centre”. The Warrant of Commitment set out earlier in these reasons, required that the applicant be kept at Don Dale. It did not contain any further specificity as to the place or conditions of the applicant’s detention.

461    As noted earlier, the YJ Act does not, with limited exceptions, contain provisions concerning the placement of youths sentenced to detention. However, the implication that the YJ Act requires that the detention which it authorises be detention in accordance with the provisions of the Act itself is strong. The very fact that the provisions concerning the imposition of sentences of detention and the provisions concerning the management and operation of detention centres are contained in the one enactment is by itself an indication that this is so.

462    The provisions of ss 149 and 150 are confirmatory that that is so. Section 149(1) provides:

(1)    A youth must not be admitted to a detention centre except in accordance with this Act.

463    Section 150 provides:

150    Explanation of rights and responsibilities

(1)    As soon as practicable after a youth is admitted to a detention centre, he or she must be given an explanation of the rules of the centre and his or her rights and responsibilities as a detainee.

(2)    The explanation must be given in a language and manner the youth is likely to understand, having regard to the youth's age, maturity, cultural background and English language skills.

(3)    Any action taken is not unlawful only because of a failure to comply with this section.

(4)    For subsection (1), an explanation of the rights and responsibilities of a detainee must include:

(a)    information about the consequences of breaching the rules of the detention centre; and

  (b)    information about the procedure for making a complaint.

(Emphasis added)

464    Although s 149(1) is seemingly directed to the admission of a youth to a detention centre, it is implicit that a youth, once admitted, is also to be detained in accordance with the terms of the YJ Act.

465    Section 150 is an explicit recognition that a detainee may have rights, as well as responsibilities, as a detainee.

Conclusion: the applicant was falsely imprisoned

466    Detention in isolation is a particular form of detention involving the imposition on detainees sentenced to detention in accordance with the terms of the YJ Act of an additional form of restraint. The very nature of this form of detention serves to confirm that that is so. The YJ Act authorises that more stringent form of detention only in the limited circumstances to which s 153(5) refers.

467    Unless placed in the BMU, the applicant did have some freedom of movement within Don Dale, some ability to interact with other detainees, and some ability to participate in the activities within Don Dale, albeit subject to the regimes and routines involved in “ordinary” detention. Whether this be characterised as a “residual liberty” seems immaterial because the applicant was entitled, at all times, to be dealt with in accordance with the law. That was a “right” given to him by the YJ Act. In particular, he could not be lawfully restrained within Don Dale other than in circumstances authorised by the YJ Act.

468    When the applicant was placed in the BMU, he became subject to the additional restraint and, on my findings, that additional restraint in the period between 2-9 January 2012 was unauthorised.

469    It may be true, as Lord Bridge said in Ex parte Hague, that detention in segregation is the substitution of one form of detention for another, but in the circumstances of this case it is the substitution of detention of a more stringent kind which is permitted by the YJ Act in only limited circumstances. Absent those circumstances, the applicant’s detention in isolation lacked the authority of the YJ Act. The reality of the different, and more stringent detention cannot be ignored.

470    In these circumstances, I consider the approach adopted by Roden J in Collins v Downs, by Adams J in Sleiman, and by Basten JA in TD, and for that matter the reasoning of Le Dain J in Miller v The Queen, as set out above, to be more in keeping with principle than the approach adopted in Ex parte Hague. In particular, it is consistent with the underlying principle that “[t]he right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes” (emphasis added): Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292 (Mason and Brennan JJ). At least with respect to the forms of detention authorised by law, I respectfully agree with the approach suggested by Professor Trindade in the article to which reference was made earlier:

The decisions of the House of Lords in Hague and Weldon that prisoners do not have a residual liberty vis-a-vis the prison authorities and that intolerable conditions in a prison do not render an otherwise lawful imprisonment unlawful thereby providing the prisoner with a potential action for false imprisonment should not, and are unlikely to, be followed by Australian courts. The decisions are based upon a strained reading of the words “may be lawfully confined in any prison” to mean “may be confined in any prison and whatever way the confinement takes place will be lawful”. Such a reading is not defensible and is contrary to current notions of personal liberty, freedom of movement and equality prevalent in Australia.

(Citation omitted)

471    Accordingly, I conclude that the unauthorised keeping of the applicant in isolation between 2 and 9 January 2012 constituted a form of false imprisonment which sounds in damages.

472    This conclusion can be reached more confidently because the respondents did not refer in their submissions to any of the authorities mentioned above, did not make any submissions directed to the underlying principles, and did not make any submission to the effect that the unlawful keeping of the applicant in isolation could not constitute unlawful imprisonment. In fact, they did not make any submissions on this particular issue at all.

473    I will defer for the time being the assessment of the damages to which the applicant is entitled for the unlawful imprisonment.

The claims concerning the use of spit hoods

474    The applicant’s pleaded case is that he had been placed in a spit hood by Corrections Officers on three occasions while he was at DCC with the first use occurring on an occasion when he was taken to the Medical Clinic. He pleaded that each of these placements was unlawful and constituted a battery or an assault. He pleaded in the alternative that the use of the spit hoods on each occasion constituted a breach of the Territory’s duty of care, and had caused him “harm, including, discomfort, difficulty breathing and, on the first occasion, mental harm arising from that physical harm”. He sought damages for the battery, assault and the harm caused by the breach of duty of care.

475    The respondents tendered a spit hood, which Mr Bonson also referred to as a “transport hood”. It was not an exact replica of the spit hoods used on the applicant but similar to them. It comprises sections of soft cotton cloth and mesh fabric, so located that the cloth will cover the mouth, and the mesh will cover the eyes. The applicant said that he had not had a clear look at the spit hoods used on him, but thought that the mesh fabric in those spit hoods was the same as that in the tendered item.

476    Although the 6SC included a plea that “a spit hood was not approved as a restraint”, the applicant did not adduce any evidence or make any submissions directed to establishing that proposition. That may have been because “transport hoods” were items of “approved miscellaneous equipment” in the Directive “Use of Restraints” issued by the Director on 14 November 2008. As will be seen, the applicant’s submissions focused instead on the term “reasonable physical force and restraint” in s 62(3) of the Prisons Act.

477    Apart from the plea that a spit hood was not an approved restraint, the applicant did not allege that the use of spit hoods could never be justified. His claim was that, in his particular circumstances, its application was not a reasonable use of force.

The applicant’s evidence concerning the spit hoods

478    The applicant’s evidence was to the following effect. He was to be taken to the Medical Clinic in DCC; the prison officers who were to take him had told him to go to the back of the cell and face the wall; when he did this, the officers had, without warning, put a spit hood on him; he had not understood what the officers were doing; he had “freaked out” and asked the officers what they were doing; with the spit hood on, he had not been able to see or to breathe properly; the spit hood remained in place for the whole of the period in which he had been escorted to the Medical Clinic, had seen the nurse, and had been escorted back to his cell; and that he had been angry because he was unable to speak to the nurse properly. The applicant said that he had worn the spit hood for “probably about four minutes”. He did not learn that the item put over his head had the name “spit hood” until he returned to Don Dale.

479    In his cross-examination, the applicant said that he had thought, when the spit hood was first put on, that the officers were “going to take me to bash me or something”. However, he also agreed that, when the Corrections Officers had come to his room, they had told him that he was being taken for a medical appointment and agreed that he had not been subjected previously to any violence from the Corrections Officers.

480    The applicant said that Corrections Officers had placed a spit hood on him for a second time when he was moved from Block C to Block B. On this occasion, they had warned him that they were about to put the spit hood on him.

481    The applicant said that the Corrections Officers used a spit hood on a third occasion when they removed him from his cell in Block B to Reception for his return to Don Dale on 2 January 2012. He had not been worried about being bashed on either the second or third occasions. The circumstances described by the applicant concerning the use of the spit hoods were no more detailed than just outlined.

The respondents’ evidence

482    I am putting to one side for the moment the evidence which the applicant led from Mr Muir, and the respondents from Mr Conway, concerning the use of spit hoods. The respondents’ witnesses who gave evidence with respect to the use of the spit hoods on the applicant were Mr Bonson, Mr Irwin and Mr Leibhardt (only Mr Irwin was involved in the placement of the spit hoods). I regarded Mr Bonson and Mr Irwin as reliable witnesses and, as previously noted, Mr Leibhardt was not cross-examined on his affidavit.

483    The DCC records show that the applicant was escorted to the Medical Clinic on two occasions while in DCC. The first was at 8.50 pm on 30 December 2011 when the applicant was held in Block C and the second on 31 December 2011 at 12.09 pm when the applicant was held in Block B. The respondents’ oral evidence concerned the second of these occasions. The B Block Shift Journal and the “At Risk – Observation Sheet” both record both the occasion on 31 December but the attendance on 30 December is recorded only in the At Risk – Observation Sheet. In relation to the former, the records indicate that Mr Irwin and Mr Tareka escorted the applicant to the Medical Clinic and returned him to Cell 5 at 12.25 pm.

484    The nurse who attended the applicant at the Medical Clinic on 31 December recorded that he had been complaining of flu like symptoms and epigastric pain, that he had been “brought to clinic wearing rip proof shorts, handcuffed and spit screen netting over face”, and that he had been “difficult to interview, giving problematic answers”. Although unclear, this manner of expression suggests that the nurse was referring to the content of the applicant’s answers, rather than communication difficulties.

485    Mr Irwin did not recall the use of a spit hood on 31 December 2011 but gave evidence of the practice which he said he adopted invariably when applying spit hoods. This was to the following effect: spit hoods were applied to prisoners who were known to spit at staff; the prisoner was told to stand at the rear of the cell, facing the wall with his hands by his side; two officers then entered the cell with one taking hold of the prisoner’s arms and the other coming from behind to apply the spit hood; a warning was not given because doing so would give the prisoner the opportunity to turn to spit; the prisoner was handcuffed and the escort to the destination commenced; and prisoners were told that the spit hood was being used for the safety of the prison officers because of the previous occurrences of the prisoner spitting. Mr Irwin said that neither spit hoods nor handcuffs were applied as a punishment.

486    As is apparent, there was relatively little difference between the description given by the applicant, on the one hand, and by Mr Irwin of his usual practice, on the other. Having regard to my reservations concerning the reliability of the applicant’s evidence, I am satisfied that the spit hoods were applied to the applicant in accordance with the practice described by Mr Irwin.

487    In cross-examination, Mr Irwin said that he believed that the applicant’s history of spitting was one of the reasons that a spit hood had been applied, that he believed that the applicant had spat on prisoner officer Deane a few days earlier in Don Dale, and that this had been passed on by word of mouth. However, he did not have an actual recollection that that was so.

488    Mr Irwin said that the Medical Clinic was approximately 100-120 m from the applicant’s cell Mr Conway timed a slow walk along the same path as taking about two minutes.

Did the applicant have a history of spitting?

489    Earlier, I referred to the report of YJO Clancy that she had heard the applicant and Mr Lawrie “make sounds like they were trying to draw spit through their throats”, which it prompted her and other YJOs to leave before they had a chance to do so. However, there is no evidence that the prisoner officers at DCC had any knowledge of this incident so that it could have influenced their thinking.

490    There is, however, evidence of the applicant spitting at Corrections Officers on the afternoon of 28 December 2011, shortly before his transfer to DCC. This followed an incident to which I have referred earlier in these reasons. About 2.10 pm on 28 December, the applicant and Mr McLean were out of Cell 4 in the exercise yard and security lounge in the BMU. They took turns to have a shower and to make phone calls. However, Mr McLean refused to return to the cell and threatened to smash YJOs with a small table. The applicant also refused to return to the cell. A confrontation and standoff then occurred and the YJOs called for assistance by Corrections Officers. Mr Bonson, Mr Deane and Mr Leibhardt attended. They removed each of Mr McLean and the applicant to Cell 4.

491    In his evidence in chief, the applicant said that the prison officer had “tackled” him to the ground and had then handcuffed him. However, after being shown the CCTV footage in cross-examination, he agreed that he had not been tackled to the ground or handcuffed. I considered that the applicant’s account of being tackled and handcuffed was one instance of his embellishment of an incident.

492    The IOMS contains a report of Mr Deane as follows:

Whilst removing Don Dale Juvenile Detainee M Campbell #360747 to the Management cell, the cell door was opened by a Don Dale staff member and prisoner Campbell was placed into holding cell #4. As the cell door was being closed, Don Dale Juvenile Detainee R McLean #408784 spat at me through the cell door and hit my chest area and face.

493    The IOMS also contains a report from Mr Leibhardt in similar terms. In his affidavit, Mr Leibhardt deposed:

As we were securing Marley in the cell, Officer Deane was spat on, hitting him on the chest area and on the side of his face. I saw and heard Officer Deane get spat on and recall Officer Deane saying words to the effect of “he’s just spat all over me”.

494    Mr Leibhardt recorded in his IOMS report that he had informed Mr Bonson and other Corrections Officers of what had transpired.

495    On 5 January 2012, Mr Deane provided another report entered in the IOMS in which he said that, having viewed the video footage of the incident, he had identified that it was the applicant, and not Mr McLean, who was the detainee who had spat on him.

496    As noted, in the incident report which he prepared on the morning of the following day, Mr Leibhardt had also attributed the spitting to Mr McLean. However, he had reviewed the CCTV footage in preparing for the proceeding and had identified that it was in fact the applicant who had spat on Officer Deane.

497    Mr Bonson did not witness the spitting incident but confirmed that he had been told at the time that one of the detainees had spat at Mr Deane. He also said that after the applicant and Mr McLean had been returned to Cell 4, a decision had been made, in accordance with the practice commonly adopted at DCC, to search the cells for contraband and to assess them for damage. He said that when they entered the BMU:

[T]he detainees were shouting threats that they would harm us, including threats to spit on us. Detainees were spitting on the mesh of the doors to their BMU cells. I could not say which specific detainees threatened to spit or spat on the mesh, as I was not familiar with the detainees.

498    No challenge was made to this evidence in Mr Bonson’s cross-examination. In fact his cross-examination comprised only one question.

499    The respondents did not call Mr Deane to give evidence. Although Mr Deane had initially provided an affidavit, at the respondent’s request, in anticipation of giving evidence in the proceeding, Ms Pikoulos deposed that, subsequently, he had declined to cooperate with them and they had not persisted with attempts to lead evidence from him. Counsel for the applicant submitted that a Jones v Dunkel inference should be drawn from the absence of Mr Deane from the witness box. Having regard to the content of Ms Pikoulos’ affidavit, I do not consider that it would be appropriate to draw that inference.

500    The respondents also tendered the CCTV footage of the incident on 28 December 2011. It does show an action of the applicant consistent with him spitting at a Corrections Officer after having been inserted into the cell. When cross-examined with reference to the CCTV footage, the applicant denied that he had spat at the Corrections Officer, and said that instead it showed him turning around and swearing at the officer. He agreed that the CCTV footage showed him, immediately afterwards, celebrating with Mr McLean but denied that they had been celebrating the fact that he had just spat on a prison officer.

501    Despite the applicant’s denials, I accept the respondents’ evidence about the applicant’s spitting on 28 December 2011. I reject as false the applicant’s evidence that he had only been swearing at the officers. His conduct was observed by two officers who made contemporaneous reports about it, although incorrectly attributing the conduct to Mr McLean. Mr Bonson noted more general spitting. The CCTV footage, including the applicant’s celebratory action, is corroborative of the Corrections Officers’ accounts. I note again that Mr Leibhardt was not required for cross-examination.

502    Accordingly, I am satisfied that the applicant did spit at Mr Deane in the incident on 28 December 2011 and that the action of spitting was reported by the prison officers amongst themselves.

503    Counsel for the applicant emphasised that a spit hood had not been used on the applicant in the transfer from Don Dale to DCC nor in any of his interactions with the Corrections Officers between the time of that transfer and its first use, which counsel thought had been on 31 December 2011. The inference was that this was an indication that use of a spit hood had not then been regarded as necessary. I decline to draw that inference. The evidence about the procedure adopted in relation to the transfer to the DCC is meagre and the latter is explicable because the prison officers’ interactions with the applicant before the first use of a spit hood had seemingly not involved physical contact with, or proximity to, him or his escort from one location to another.

504    Also pertinent to the prison officers’ apprehensions concerning the applicant spitting is the report of the Acting Chief Prison Officer at DCC to Mr Yaxley in an email shortly after the applicant’s transfer from C Block to B Block on the morning of 31 December 2011 that he had been “sighted spitting in his cell”. It is a reasonable inference that this conduct of the applicant had occurred and that it had been reported to the Acting Chief Prison Officer by Corrections Officers. It is, however, not clear when those incidents of spitting had occurred in relation to the first and second usages of a spit hood.

505    Of course the previous incidents of spitting are relevant only if known to the Correction Officers applying the spit hoods or to those directing their use. There is no express evidence to that effect. I infer, however, that the Corrections Officers did have that knowledge, noting again that the spitting on Corrections Officers on 28 December 2011 had been reported amongst themselves. It is also the kind of conduct about which the Correction Officers were likely to be apprehensive. In all these circumstances, I am satisfied that the Corrections Officers did have a reasonable basis for being apprehensive that the applicant would spit at them when being escorted within the DCC.

Findings concerning the use of spit hoods

506    The respondents submitted that there was evident confusion in the applicant’s evidence concerning the use of the spit hoods and inconsistency in the accounts he has given in relation to that use. They submitted that, whereas the applicant had pleaded, and testified in accordance with that pleading, that his transfer from C Block to B Block was the second occasion on which a spit hood had been used, the evidence shows that that transfer occurred at 8.15 am on 31 December 2012, that is, before the applicant was taken to the Medical Clinic just after midday that same day, with the consequence that the latter must have been the second use of a spit hood. However, in making that submission, the respondents overlooked that the applicant had been taken to the Medical Clinic at 8.50 pm the previous evening. That could well have been the occasion of the escort to the Medical Clinic to which the applicant was referring and it was the respondents who had assumed wrongly that he was referring to the occasion on 31 December at 12.09 pm. This issue was not explored in the evidence and I am disinclined to draw an inference adverse to the applicant on that account alone. However, proceeding on that basis, there are still difficulties in the applicant’s account because he testified to wearing a spit hood to the Medical Clinic only once. If the first occasion was at 8.50 pm on 30 December, his wearing of a spit hood to the Medical Clinic at 12 pm on 31 December must have been a second occasion (the nurse recorded him wearing a spit hood in the attendance on 31 December). Again, if the applicant’s evidence about his wearing of a spit hood on his transfer from C Block to B Block and again on 2 January be correct, that would mean that there were four occasions in all in which he wore a spit hood, but the applicant pleaded, and led evidence about, three occasions only.

507    These inconsistencies could be attributed to innocent slips in memory. However, that does not seem plausible given the significance which the applicant now seeks to attach to the use of spit hoods, in particular, as being a cause of Post-Traumatic Stress Disorder.

508    There are, moreover, some other inconsistencies. Although the applicant thought that he had been taken to the Medical Clinic for an examination of his hand, the At Risk – Observation Sheet suggests that it was because he had “spewed up some blood”. The evidence does confirm that the applicant was seen by a nurse in relation to his hand but that was on 1 and 2 January 2012, and on each of those occasions the nurse attended on the applicant in his cell rather than the applicant going to the Medical Clinic.

509    Mr Ralph said (and I accept) that the applicant had told him that he had been placed in a spit hood due to another inmate reporting that he had spat upon him. He also said that the applicant had denied to him that he had ever spat on a Corrections Officer. On my findings, the second claim is incorrect and the applicant must have known when speaking to Mr Ralph that that was so. There is no evidence at all to support the applicant’s first statement, and counsel for the applicant did not seek to cross-examine any Corrections Officer to that effect. The applicant said in evidence that he had not been told that the purpose of the spit hood was to prevent him spitting and that he had not known until he returned to Don Dale that the item was called a “spit hood”. However, Mr Ralph recorded (I find accurately) that the applicant had told him that Corrections Officers had told him “at the time” that the use of spit hoods was now “routine” practice.

510    In addition, the evidence of Mr Bonson and Mr Conway (which I accept) about the ease with which one can both see and breathe through the mesh fabric makes me think that the applicant exaggerated his evidence about the difficulty in doing so. I am not willing to accept that the applicant had difficulty breathing and any discomfort must have been no more than momentary.

511    While keeping in mind that some of these matters may be attributable to innocent slips of memory, they, and my assessment of the applicant’s reliability more generally, raise real concerns about the credibility of his evidence with respect to spit hoods.

512    Despite my reservations, I am willing to find that the first use of a spit hood was at approximately 8.46-8.50 pm on 30 December. I think it likely, and so find, that that usage was in accordance with the practice described by Mr Irwin, even if Mr Irwin was not involved in that usage. I accept that the subsequent uses of the spit hood to which the applicant referred did occur and that this was in the manner described by the applicant and Mr Irwin (although the applicant said that after the first use of the spit hood, he had been forewarned that one was to be applied). I also accept that the applicant found the use of spit hoods on the first occasion unpleasant and that it caused him some apprehension about what was to happen to him. This would have been especially so if the applicant had not known where he was to be taken and did not know immediately why the spit hood had been placed over his head. However, I think it likely, and so find, that he was told reasonably early on each occasion where he was being taken, and the purpose of the spit hood. My assessment is that the applicant found the use of spit hoods to be unpleasant and humiliating. This has led him to enlarge the experience in his mind, which has been manifested in his evidence concerning the difficulty in breathing and concerning his fright. That is to say, I consider that the applicant’s evidence about his experience with spit hoods, and their effects, was exaggerated.

Battery and assault: principles

513    Battery is the direct act of a defendant, whether intentional or reckless, which makes, or has the effect of causing, contact with the body of another: Marion’s Case at 311 (McHugh J). Assault, on the other hand, is comprised of a threat of intentional contact causing the other person to apprehend, reasonably, that conduct is to be made with their body.

514    In Collins v Wilcock [1984] 1 WLR 1172, Goff LJ said at 1177-8:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however, slight, may amount to a battery. So Holt CJ held in Cole v Turner [1904] 6 Mod. 147 that “the least touching of another in anger is a battery”. The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3 p 120:

The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.

The effect is that everybody is protected not only against physical injury but against any form of physical molestation … of course, a police officer may subject another to restraint when he lawfully exercises his power of arrest; and he has other statutory powers … But, putting such cases aside, police officers have for present purposes no greater rights than ordinary citizens. It follows that, subject to such cases, physical contact by a police officer with another person may be unlawful as a battery, just as it might be if he was an ordinary member of the public.

515    It was not in issue that the conduct of the Corrections Officers in placing the spit hoods over the applicant’s head constituted an intentional application of physical force sufficient for the tort of battery.

516    The issue between the parties was whether there had been a lawful justification for that application of force. This devolved to a factual issue: had it been reasonable in the circumstances for the Corrections Officers to place the spit hoods on the applicant?

517    The parties’ submissions paid relatively little attention to the legislative authority for the use of the spit hood on the applicant. I have previously found that the management of the applicant at DCC was governed by the Prisons Act and not by the YJ Act. Section 6(2) of the Prisons Act has been set out earlier, at [406].

518    In relation to the powers of prison officers, s 9 provides:

Every officer while acting as such is, because of 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.

519    Section 62 is an express statutory authority for the application of physical force:

62    Firearms etc. may be used

 (1)    …

(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 such 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 police prison.

520    The common law powers of a police officer vested in a prison officer by s 9 include the power to take reasonable steps to ensure that a prisoner does not injure himself or others and does not commit any further crimes, including the assault or battery of another: Woodley v Boyd [2001] NSWCA 35 per Heydon JA at [37], citing Lindley v Rutter [1981] QB 128 at 134 in which Donaldson LJ said:

It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.

521    Heydon JA went on to note that “in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight”.

The expert evidence regarding spit hoods

522    There was a difference between the experts, Mr Muir and Mr Conway, concerning the reasonableness of the use of the spit hoods on the applicant in the DCC.

523    Mr Conway worked in juvenile detention centres in New South Wales for the 30 years between 1988 and 2018. After commencing as a youth worker, he had positions as Case Manager, Coordinator, Trainer and Shift Supervisor. Mr Conway has undertaken, and delivered, numerous training courses relating to aspects of youth detention, including courses directed to the management of difficult behaviours and protective tactics. I was satisfied that Mr Conway has considerable practical expertise about these matters.

524    It became obvious during Mr Conway’s evidence that he has had relatively little experience as a witness. Nevertheless, I considered that Mr Conway gave honest and practically-based evidence. As will be seen, I have accepted his opinions.

525    Mr Conway said that the reasonableness of the use of force or restraints should be considered having regard to a number of matters including:

(a)    the alternatives available, such as negotiation with the detainee, because force should be used only as a last resort;

(b)    the proportionality of the level of force to the behaviour of the detainee and the risks associated with that behaviour;

(c)    the broader context in which the behaviour is occurring;

(d)    the risks to the safety and security of all involved (including staff and detainees) with the relevant considerations including;

(i)    the seriousness of the risk;

(ii)    the likelihood of harm resulting from the behaviour;

(iii)    the risk to the detainees and/or staff if force is used;

(iv)    the risk to the detainees and staff if force is not used;

(v)    the potential for the incident to escalate to involve a broader population of detainees; and

(vi)    the duty of care owed to both staff and detainees;

(e)    the urgency with which the action is required;

(f)    the knowledge of the responder of, in particular, the behavioural history of the detainee and other matters personal to the detainee; and

(g)    the force permitted under the applicable legislation or policy.

526    Mr Conway said that the applicant’s past behaviour meant that it was appropriate for him to be regarded as “a potentially dangerous detainee”. He considered that, having regard to the applicant’s behaviour in the Boxing Day disturbance, his non-compliance with the directions of YJOs on 28 December 2011 and his spitting on a prison officer on the same day, it was appropriate to assess, on 31 December 2011, that there was “a high risk” that he would spit on the prison officers escorting him to the Medical Clinic. He noted that the spitting by a detainee or prisoner on staff creates a risk of the staff member contracting a number of viral or bacterial infections including Hepatitis A, B or C, herpes or HIV. He had observed in his work experience the traumatic effect of spitting on staff members and the difficulties it can create for both them and their families (especially during the period of waiting for results of tests for the presence of infection).

527    Mr Conway considered that it had been appropriate for prison officers to consider ways by which the risk of the applicant’s spitting on them could be averted and said that the options were:

(a)    issuing a direction to the applicant;

(b)    applying force to the applicant’s head (I infer so as to cause him to bend forward);

(c)    the prison officers wearing Personal Protective Equipment (PPE); and

(d)    the use of an “escort mask” or spit hood of the kind in fact used.

528    Mr Conway discounted the first and second of these alternatives and said that it was appropriate for the third or fourth to be applied. He opined that, of these alternatives, it was appropriate to apply the spit hood to the applicant because:

(a)    the spit hood was made of cotton with a white fabric mesh over the face;

(b)    when trying the spit hood on himself, he could see and breathe through it without difficulty;

(c)    the spit hood was worn for a short period only; and

(d)    the spit hood was worn only within DCC.

529    The cross-examination of Mr Conway about these matters was limited. He confirmed that he had not been given information about how the spit hood had been put over the applicant’s head on the first occasion, and agreed “that it is unreasonable to apply a spit hood from behind and without warning”. I understood this opinion of Mr Conway to concern the manner in which spit hoods are placed on detainees generally.

530    Mr Conway did not give evidence about forms of PPE and it was not suggested in his cross-examination that PPE was practical. In particular, it was not suggested that use of full face helmets by the prison officers was appropriate.

531    Mr Muir concluded that, even before the Boxing Day disturbance, the applicant “was a young man who consistently challenged boundaries, was verbally aggressive at time to both staff and other detainees and had committed assaults on both groups”. He critiqued Mr Conway’s assessment of the applicant at the time of his transfer to DCC as “potentially a dangerous detainee”, saying that the same “could be said of almost any detainee”. Mr Muir also said that, “with the exception of the events around Boxing Day 2011, the overwhelming majority of [the applicant’s behaviour] fell within the definition of [challenging behaviour]”.

532    Mr Muir agreed with Mr Conway’s opinion regarding the impact of detainees spitting on staff. He said at [7.3]-[7.4]:

I agree with him that it does have a significant psychological impact on staff. Many staff expressed a view to me that [they] would rather be physically assaulted than spat upon. Mr Conway discusses the risk of contracting a disease through saliva and blood, however the advice to me from medical staff both in my own Department and from Justice Health NSW was that the risk of disease from being spat upon is exceptionally low.

This does not mean that health and safety considerations can be ignored … In my opinion, the risk to staff is overwhelming psychological.

533    Nevertheless, Mr Muir opined that the use of spit hoods on the applicant by the DCC officers was not reasonable. He gave the following reasons:

(a)    spitting by detainees is common in detention environments;

(b)    on the first occasion, the spit hood was placed on the applicant without warning;

(c)    at least on the first occasion, no negotiation with the applicant had been attempted;

(d)    the view that the applicant had a history of spitting was not reasonable as the only prior incident of spitting had been on the afternoon of 28 December 2011;

(e)    all of the applicant’s previous assaults on staff (including spitting) had been in circumstances in which force was being used;

(f)    there had been absence of proactive management of the applicant’s behaviour;

(g)    the applicant probably presented no greater risk of spitting than any other detainee, which could have been managed by negotiation and use of other options; and

(h)    the fact that the applicant had been released from his cell in DCC in order to shower without it being thought necessary that spit hood was necessary evidenced that he could be successfully managed without the use of spit hoods.

534    On the basis of my findings, the matters assumed by Mr Muir for reasons (d), (e), (g) and (h) are not established or at least would have to be qualified. I also considered that Mr Muir’s evidence tended to diminish the significance of the applicant’s conduct in the Boxing Day disturbance and the potential danger to staff he presented until the circumstances were stabilised. His view that the applicant was potentially dangerous in the same way as any other detainee seemed to me to be an unrealistic appraisal.

535    In cross-examination, Mr Muir confirmed that he considered that the use of spit hoods had been unreasonable because the prison officer should have fitted themselves with PPE and attempted a negotiation with the applicant. He said that by PPE he meant a “full-faced helmet” as a minimum and initially said that a small shield could also have been used Mr Muir later acknowledged that he would not have deployed a shield in the circumstances.

536    I consider the following matters relevant to the assessment of the weight to be given to Mr Muir’s opinions:

(a)    at least some of Mr Muir’s evidence seemed directed to underlying systemic matters about use of spit hoods, rather than their use in the particular circumstances of the applicant. The applicant’s legal representatives had not pressed the tender of significant portions of Mr Muir’s reports on the grounds that they were irrelevant to the pleaded issues. These included portions in which Mr Muir had critiqued aspects of the youth detention systems in the Territory. I had the impression that some of that critique influenced the opinions Mr Muir expressed about the use of spit hoods;

(b)    Mr Muir had a tendency not to answer questions directly, with the consequence that he frequently had to be pressed to answer the question asked of him. I had the impression that Mr Muir was one of those witnesses who hears the topic in a question rather than the question itself and so, for the most part, did not think that he was being deliberately evasive. I did, however, consider that this tendency of Mr Muir evidenced a lack of precision in his thinking. There were also instances when I did think that Mr Muir did avoid answering a question directly because he perceived that the answer would undermine his opinions, or would indicate that they were not realistic. There were also times when I thought that he was being argumentative;

(c)    Mr Muir has never worked in an adult prison such as DCC;

(d)    while Mr Muir does have expertise in relation to youth detention, his experience has mostly been at the executive management level rather than as a “front line” worker. I accept, however, that his work history has included the scrutiny of the training provided to detention officers in New South Wales and, as indicated earlier, accept that he has acquired expertise by virtue of having had the responsibility of managing the juvenile detention system in that State;

(e)    Mr Muir seemed to assume that the statutory authority with respect to the application of spit hoods in the applicant’s case derived from the YJ Act, whereas on my findings, it derived from the Prisons Act; and

(f)    Mr Muir was willing to give his opinions without knowing, and without making enquiry about, a number of matters, including matters which he acknowledged in cross-examination to be relevant. In particular, he gave his opinion about the use of full face helmets without knowing the number of people to whom they would have to be issued, that is, the number of people with whom the applicant may come into proximity on the way to and from the Medical Clinic, and the practicality of health practitioners conducting medical examinations while wearing such helmets.

537    Although asserting confidently that full face helmets should have been used, Mr Muir did not depose to having made any enquiry as to their availability at DCC. There was no evidence at all in the trial that such helmets were available at DCC in December 2011-January 2012.

538    For these reasons, I considered that the evidence of Mr Conway was more persuasive than that of Mr Muir. I prefer Mr Conway’s evidence.

539    Ultimately, Mr Muir accepted that, if the applicant was at risk of spitting, protection required that either he be put in a spit hood or the staff, including the health practitioner, provided with appropriate PPE.

Conclusion on the claim of battery and assault

540    The use of the spit hoods did not constitute a battery if there was a lawful justification for that use. In my opinion, there was such a justification. The evidence referred to earlier supports the conclusion that the Corrections Officers were aware of the incidents of spitting involving the applicant. It is the case that, at the time, Mr Deane and Mr Leibhardt thought it was Mr McLean, and not the applicant, who had done the spitting. However, they had seen Mr McLean do that in the company of the applicant, and the applicant celebrating the spitting with Mr McLean. It could not be concluded that the use of the spit hood was baseless.

541    Given ordinary understandings about the effects of spitting and the evidence of Mr Conway and Mr Muir about those effects on prison and detention officers, it is understandable that the Corrections Officers sought to protect themselves against the risk of spitting. Their use of the very piece of equipment provided at DCC for that purpose was in my view both reasonable and justifiable. I do not accept the opinions of Mr Muir on this topic.

542    It follows that the claim of battery fails. The claim of assault fails for much the same reasons.

The claim in negligence

543    The applicant did not make any submissions concerning the claimed negligent infliction of damage by use of the spit hoods. It was accordingly unclear whether this claim is pursued.

544    In any event, the applicant’s claim in negligence depends on him establishing that the use of the spit hoods caused him harm, as damage is the gist of the tort: Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 per Brennan J at [6]. The only harm the applicant alleges is that the spit hoods caused him “discomfort including difficulty [in] breathing” and, in respect of the first use of the spit hood, mental harm “arising from that physical harm”.

545    On my findings, the applicant did not suffer physical harm. In my view, his claims of difficulty in breathing were exaggerated but in any event, any short term difficulty in breathing he experienced did not result in physical harm. The applicant did not adduce any medical evidence to that effect. As I will indicate later, I am not satisfied that the applicant has suffered any psychiatric injury arising from the use of the spit hoods.

The claims concerning the incidents on 29 May 2012

546    The next claim in chronological sequence arises from events on 29 May 2012, in which force was applied to the applicant in two separate incidents.

547    The applicant’s pleading of these claims is:

[99]    On 29 May 2012, the applicant ran outside of the building at Don Dale, after being refused permission to have a shower. He was pursued by a guard who tackled him to the ground and injured his shoulder.

[100]    Later, on the same day after a fire alarm was activated:

a.    prison officers ordered the applicant to place his hands through the door of his cell and handcuffed him;

b.    a prison officer entered the applicant’s cell and grabbed the applicant from behind around the neck causing the applicant discomfort and problems in breathing;

c.    officers took the applicant out into the yard and handcuffed the applicant’s arm to a fence above shoulder height; and

d.    the applicant was left in that position for more than an hour and suffered discomfort and fatigue from being constrained in that manner.

548    As is apparent, the particular matter which is the subject of the first of these incidents (the “Tackling Incident”) is the tackling of the applicant. This is confirmed by the later pleas. The matters which are the subject of [100] (the “Evacuation Incident”) are of a more composite and prolonged kind.

549    The applicant alleges that the application of force by the detention officer in the Tackling Incident and by the prison officers in the Evacuation Incident was unlawful because each was:

  (i)    excessive and not reasonably necessary;

(ii)    involved the placement of the applicant in a constrained and fatiguing position in breach of s 153(2) and s 153(3)(c) of the [YJ] Act;

and, accordingly, constituted a battery.

550    The applicant alleges, secondly, that the pleaded actions of the detention officer and the prison officers respectively caused him to apprehend that the officers might make or cause physical contact with him and, accordingly, constituted an assault.

551    The applicant alleges, thirdly, that the actions of the officer in the Tackling Incident constituted a breach of the duty of care owed to him and that, by reason of the breach, he had suffered injury to his right shoulder. In the final submissions, counsel said that the applicant did not seek damages for the injury, only for “the trespass”, by which I understood counsel to mean the alleged battery.

552    The applicant made his claims in respect of the Tackling Incident and Evacuation Incident against the Territory only. He did not allege a breach of duty of care in relation to the Evacuation Incident.

553    In addition to documentary evidence and CCTV footage, the Court had evidence about the events on 29 May 2012 from the applicant, Mr Edwards, Ms Auton, Mr Mangawai (each of whom is a YJO) and from Mr Hall and Mr Nicol (each of whom is a Corrections Officer). Mr Conway and Mr Muir also expressed opinions about the reasonableness of the use of force by the detention and prison officers.

The applicant’s evidence concerning the Tackling Incident

554    The applicant’s evidence in chief about the Tackling Incident on 29 May 2012 was to the following effect: when he returned to Don Dale from a Court attendance in relation to the charges arising from the Box Day disturbance, he asked to have a shower but was told by a YJO that he had to wait; this had made him angry; later that day, while he was in the dining room, Mr Lawrie had a fight with another detainee in the hallway leading to the BMU; a YJO had left the dining room to go to the courtyard; he and another detainee, Mr Richards, had left the dining room and moved to the basketball court and swimming pool area; they were chased by YJOs and one of them, Mr McAllan, had tackled Mr Richards to the ground; Mr Richards was then taken to the “isolation cells”; when Mr McAllan returned, he tackled the applicant to the ground (“he grabbed me by the arm and slammed me to the ground … when I was on the ground, he put my arm behind my back like a chicken [and it] felt like my [right] shoulder was going to pop out”); he had told “them” that it was hurting and that it was going to break his arm; one of the YJOs had told Mr McAllan to let him go because he would break the applicant’s arm; and he had then been handcuffed and taken to the isolation cells.

555    In cross-examination, the applicant agreed that he had run out of the dining room to the courtyard area; that he had known when doing so that he was doing the wrong thing; that the staff were chasing him and telling him to come back; that he had disobeyed their directions; that he had known that in disobeying the directions he was doing the wrong thing; that the staff had asked Mr Richards to come with them to the BMU; that Mr Richards had refused; that Mr Richards was then taken to the ground and then removed to the BMU; and that he could not remember YJO Austin staying with him while Mr Richards was being removed, nor Mr Austin, and later Mr Edwards, trying to negotiate his movement to the BMU. The applicant denied that he had been lifted from a sitting position to his feet and insisted that he had been taken to the ground before being moved to the BMU. He also insisted that he had not struggled with the YJOs until after he had been taken to the ground.

The applicant’s evidence concerning the Evacuation Incident

556    The applicant’s evidence in chief about the Evacuation Incident was to the following effect: after he had been placed in the BMU, another detainee had sprayed the contents of a fire extinguisher about, generating a foam; the effect of the foam was that he had been unable to breathe, so he had used his shirt to cover his face and had sat down in the back corner of the isolation cell; Corrections Officers from DCC had come; they had told him to put his hands through the door hatch, handcuffed him, and then opened the door, walking him out of the cell as they did so; one of the Corrections Officers had then choked him, with the consequence that he “sort of like blacked out and hit the ground”; he and the other detainees were then taken to the fence next to the basketball court and handcuffed to it; his handcuff had been attached to the fence at about his eye height; he remained handcuffed to the fence for approximately 30 minutes; he had felt uncomfortable and his right arm had to started to feel “dead”; he was then taken back to “isolation cells”; the fire brigade had attended and there was “water everywhere” in his cell; and he had had to sleep that night in the damp conditions.

557    In cross-examination concerning the Evacuation Incident, the applicant said that he had not long been in the BMU before prison officers had come to get him and that a prison officer had put him in a headlock as he was being walked outside. Initially, the applicant demonstrated a movement of the prison officer putting his (the prison officer’s) hand around his throat but said that it was just the prison officer’s arm which had come across (and against) his throat. He said that the prison officer had been directly behind him when this occurred, that he had fallen to the ground but had been lifted up, taken to the fence and handcuffed to it. The applicant disagreed that he had been handcuffed to the fence at below eye level height; said that he had no memory of laughing and joking with other detainees while they were waiting; had no memory of YJOs, in particular YJO Auton, being present but said that the detainees had complained to the YJOs about being uncomfortable and had been told to “shut up”.

Findings concerning the circumstances of the Tackling Incident

558    It is not necessary to review separately the evidence of the respondents’ witnesses (Mr Edwards, Ms Auton and Mr Mangawai) regarding the Tackling Incident. I regarded each as giving honest and generally reliable evidence. There were some differences in their accounts but I did not think that surprising, given ordinary fallibility of human memory, the dynamic nature of the events which they were describing, the length of time which elapsed from 29 May 2012 until they gave their evidence, and the differing extents to which the witnesses had been involved in the Tackling Incident. For the most part, their accounts were consistent with the contemporaneous reports. They were also supported by the CCTV footage to the extent that it had recorded aspects of the incident.

559    My findings of fact are as follows. The detainees being held in the maximum security area of Don Dale on 29 May 2012 (of whom the applicant was one) commenced their evening meal in the dining room at approximately 6.30 pm under the supervision of Mr Standish and Ms Auton. This was later than usual. At 7.30 pm, the YJOs directed the detainees to return to their rooms. Some complied with the YJOs’ instructions but some, including the applicant, were slow in doing so. Mr Standish called for assistance by other YJOs (by contacting Mr Edwards who was the Senior Officer on duty). Mr Edwards and Ms McLellan attended. Mr Edwards then commenced moving three detainees, Mr Lawrie, Nathan Campbell and Mr Vigona back to the BMU. As this group of detainees left the dining room, Mr Richards called out to them “where are you going, come back here” in a seeming attempt to encourage further non-compliance. A fight then broke out between Mr Lawrie and Mr Vigona in the hallway leading to the BMU and there was yelling which could be heard in the dining room where the applicant and Mr Richards remained. Mr Standish went to assist Mr Edwards. He and Mr Edwards acted to move Mr Lawrie and Mr Vigona separately to Cells 5 and 1 respectively in the BMU. At some stage in the movement of these three detainees to the BMU, Nathan Campbell turned off the lights in the dining room.

560    While the movement of the three detainees to the BMU was occurring, the applicant and Mr Richards remained in the dining room. Ms Auton was supervising them and was joined by YJO Austin. The applicant told Mr Austin that he wanted to have a shower. Instead of remaining at his table, Mr Richards pushed up the servery door and “hopped over the bench into the kitchen”. He then emerged from the kitchen waving a large servery spoon in front of Ms Auton and in close proximity to her. Ms Auton took hold of the spoon as well and, after a short period of resistance, Mr Richards let it go. Mr Richards then started kicking forcibly a door exiting from the dining room. Ms Auton thought that the applicant had also engaged in this activity but that is not supported by the CCTV footage. Possibly, it happened out of the CCTV viewing range.

561    At about this time, Mr Mangawai entered the dining room from the courtyard. The applicant and Mr Richards took advantage of the door opening to push past Mr Mangawai and run out to the courtyard adjacent to the basketball court. Ms Auton, Mr Austin and Mr Mangawai followed them out. Mr Mangawai tried to calm the applicant and Mr Richards. So did Mr Austin.

562    When Mr Edwards and Mr Standish returned to the dining room after placing Mr Lawrie, Nathan Campbell and Mr Vigona in the BMU, they too went out to the courtyard. The applicant and Mr Richards were running about, evading the YJOs. The applicant said to Mr Richards “come on Ashley, come with me” in an apparent endeavour to persuade him not to be compliant with the YJOs. Both Mr Edwards and Mr Standish encouraged both detainees to stop this activity and to move to the BMU, but they did not comply. Eventually, the YJOs corralled the applicant and Mr Richards, who both sat down on a small concrete step adjacent to the basketball court. They continued to refuse to move to the BMU. Mr Standish warned the applicant that, if he did not comply with the direction to move to the BMU, he would be restrained. Mr Standish then took hold of Mr Richards by the arm using a technique which Mr Edwards described as “passive restraint”. This involved gripping him on his shoulder and at his wrist. Mr Edwards and Mr Standish then escorted Mr Richards to the BMU. While placing Mr Richards in his cell, Mr Edwards could hear a disturbance in H Block but he did not divert to deal with that.

563    When Mr Edwards and Mr Standish returned to the courtyard after placing Mr Richards in the BMU, the applicant was still sitting on the concrete step. Other YJOs were present, being Mr Mangawai, Ms Auton, Mr Austin and Ms McLellan. They had been encouraging the applicant to cease his non-compliance. Mr Edwards and Mr Standish again encouraged the applicant to move voluntarily to the BMU but he did not comply. Standing either side of the applicant, they took hold of his wrists and shoulders and started to pick the applicant up. The applicant struggled with them, trying to get away. Mr Edwards and Mr Standish then used a technique in which they had been trained, referred to as “ground stabilising”, and placed the applicant on the ground. The applicant continued to struggle while on the ground and was abusive to the YJOs.

564    There was no CCTV footage of the placement of the applicant on the ground. Mr Edwards had little memory of the actual movements of the applicant, Mr Standish and himself as the applicant was placed on the ground but said that he had maintained a firm grip on the applicant’s arms and “would have went down with him”.

565    In his report, Mr Standish said that he had done so “with force” but I understood this to be a reference to the fact of physical contact with the applicant rather than a description of the physical effort applied. That understanding is supported by the fact that Mr Edwards completed the “Use of Force Register” in accordance with the Don Dale protocols. Mr Muir said that any touching of a detainee is regarded as a use of force.

566    In any event, I am satisfied that, as the applicant was moved to the ground, Mr Edwards and Mr Standish followed him and there was something of a struggle. As the applicant continued to struggle, Mr Edwards directed Ms Auton to get handcuffs. While Ms Auton was away, Mr Edwards and Mr Standish continued their attempts to calm the applicant and to obtain his cooperation. When Ms Auton returned, the applicant was handcuffed with his arms behind his back. I am satisfied that use of handcuffs in the circumstances then pertaining was in accordance with the procedures in which the YJOs had been trained.

567    Once handcuffed, the applicant was moved to the BMU without further incident.

568    The respondents did not lead evidence from Mr Standish or Mr Austin. However, Ms Pikoulos deposed to the enquiries which she had made, without success, to locate them. It was not suggested that any inference adverse to the respondents should be drawn on account of the fact that evidence had not been led from them.

569    It is pertinent to keep in mind Mr Edwards’ evidence, which I accept, that before 29 May 2012 he had had a good rapport with the applicant. There is no reason to suppose that he had any animus towards the applicant.

570    The evidence summarised above indicates that the applicant’s account in his evidence in chief was incomplete in a number of material respects. In particular, the applicant made no reference to the repeated requests for his compliance with the YJO’s directions and, other than in his cross-examination, to his continued struggling with the YJOs. His evidence tended to diminish his own contribution to the circumstances about which he complains.

571    Secondly, contrary to the applicant’s evidence, Mr McAllan was not involved in the incident on 29 May 2012. Mr McAllan’s evidence, which I accept, was that he did not work at Don Dale in 2011 and 2012 and it is plain that he was not on duty on 29 May 2012. Mr Edwards did not even know Mr McAllan.

572    Thirdly, contrary to the applicant’s pleading and evidence, neither he nor Mr Richards were pursued and tackled to the ground (in the sense of a running tackle). Nor was the applicant “slammed” to the ground. Instead, after the two detainees had been cornered, Mr Richards was moved with little resistance to the BMU. The applicant was “placed” on the ground with Mr Edwards and Mr Standish endeavouring to do so in accordance with a standard technique.

573    However, I accept that there was a struggle during that placement and it may well have been the case that, in that struggle, and by reason of at least in part of the applicant’s own bodily movements, there was a time when the applicant’s arm was held in a relatively high position behind his back. The respondents’ evidence satisfies me that it was not done deliberately and that the applicant’s arm was not held in that position for a prolonged period. The applicant has not satisfied me that one YJO warned another to stop holding his arm in a strained position, in order to avoid breaking the applicant’s arm.

574    I accept that in the Tackling Incident, the applicant did suffer a soft tissue injury to his right shoulder. The respondents admitted that that was so. I also accept that the injury caused some discomfort – the CCTV footage shows him rubbing the shoulder shortly after he was placed in the cell by Mr Edwards and Mr Standish. I consider the injury to have been a result of the struggle initiated by the applicant rather than the specific manoeuvre which the applicant alleged.

575    I add that the applicant’s evidence about the injury to his shoulder was relatively brief. He said that at the time he was put in the cell by Mr Edwards and Mr Standish, his shoulder had been “sore”; that the soreness had persisted; that he had seen a doctor or nurse about the shoulder while he was still at Don Dale; and that he still has problems with the shoulder, feeling it when he leans or lies on it and when playing sport.

576    The Don Dale records show that the applicant was seen by a nurse on 15 June 2012 with a complaint of “bilateral shoulder pain”. The nurse recorded the applicant telling her that his arms had been “pulled tightly behind his back and he was handcuffed”. The nurse also recorded the applicant telling her that he had asked at the time to see a doctor but had been told that he could not see anyone for 72 hours. There was no corroborative evidence of that particular complaint. In any event, the nurse referred the applicant for review by a doctor at the Royal Darwin Hospital.

577    By reason of a mistake in the arrangements for the review, the applicant was not seen by a doctor until 23 June 2012. The doctor who saw the applicant at the Royal Darwin Hospital on that day recorded that the applicant had said that he had been having pain in both shoulders for a “few weeks”; that the pain had worsened after he had been handcuffed three weeks previously; and that while initially he had had pain in both shoulders, the left shoulder pain had completely resolved. The doctor prescribed Neurofen (which I understand to be an anti-inflammatory medication) and Panadol for one week and indicated that, if the applicant’s symptoms did not improve, an ultrasound scan of his right shoulder be undertaken. It does not appear that this scan was ever undertaken. If it was, the results were not included in the tendered documents.

578    The doctor who examined the applicant on 8 July 2012 (the day before his transfer to ASYDC) recorded that the applicant had “no medical issues” and that he was not on any medication. There is no evidence of the applicant having had any further medical attention to his shoulder.

579    The applicant did not adduce any medical evidence in relation to the right shoulder.

580    In all these circumstances, I consider that the injury to the applicant’s right should was not serious; it was in the nature of a soft tissue strain; and that its symptoms persisted for no more than 4-6 weeks.

Findings regarding the Evacuation Incident

581    The circumstances giving rise to the Evacuation Incident commenced even before the applicant had been placed in the BMU cell after the Tackling Incident. Nathan Campbell, who had been placed in the security lounge, smashed a panel adjacent to its rear exit door and, through the gap, was able to take a fire extinguisher from its bracket on the external wall and pull it inside. Mr Edwards heard some of the noise being caused by Nathan Campbell as he was placing the applicant in his BMU cell. There was also shouting from other detainees and other noise from H Block. He had also been alerted to the disturbance from Nathan Campbell while he was out at the basketball court attending to the applicant.

582    Nathan Campbell used the fire extinguisher to break the inspection window in the internal security lounge door and started to spray the extinguisher’s contents (a powder) into the BMU. Amongst other things, this made it difficult for the YJOs and detainees to see and breathe. Mr Edwards was physically affected by the powder and he asked Ms Auton to seek assistance from Corrections Officers at DCC, as well as contacting Mr Yaxley. The first Corrections Officer on the scene asked for breathing apparatus.

583    The Corrections Officers, proceeding without breathing apparatus, then commenced removing the detainees from the BMU, taking them one by one out into the courtyard area and handcuffing them to the fence. Mr Hall stated that the detainees were handcuffed to the wire mesh fence in the basketball area because “there was nowhere else suitable”. Although the evidence was non-specific, I infer that they were handcuffed to the fence by one arm only.

584    None of Mr Edwards, Ms Auton or Mr Mangawai witnessed the actual extraction of the detainees from the BMU cells but did see the detainees handcuffed to the fence.

585    Although there was CCTV footage of the extraction of some detainees, including the applicant, from the BMU cells and their movement to the exit door of the exercise yard, there was no footage of their movement from that door to the fence or of them while handcuffed to the fence.

586    The CCTV footage shows that five Corrections Officers were involved in the movement of the applicant although the fifth appears to have been an observer or a “reserve”. It supports the applicant’s account that he had put his hands through the inspection hatch in the door, that he had been handcuffed, the door was then opened and he was moved out of the cell. It also indicates that the applicant was subject to more restraint than the detainees who were evacuated before him.