Don’t Just Blame The Guards: Don Dale Is What Systemic Violence Looks like

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The torture inflicted on juveniles was accepted by courts, commissioners, and politicians alike, writes Michael Brull.

One of the most haunting clips from the Four Corners expose on Monday was of Dylan Voller when he was just 13-years-old.

Wandering around his cell, shuffling cards, three large men burst in. Dylan tosses the cards to the side, as a burly man in black grabs him by the neck and swings him to the bed. As the man holds him down by the neck, another man immediately strips Dylan of his shorts and underwear, while the third man collects other items from the room. The burly man puts another hand on Dylan’s right buttock, as the other two continue taking things from the cell.

After a while, he rests his knee and considerable weight on top of Dylan. When he finally gets off Dylan and leaves, Dylan sits up. He stumbles towards the door, holding his face. He walks around the room, then falls onto the bed, seemingly crying into his hands. He is wearing the new white gown the three large men left in his cell.

It was left there because he had threatened to self-harm. The intervention by the three large gentlemen was supposed to protect him.

Four Corners went on to discuss other instances of Dylan being brutalised. Of Dylan being kneed and then punched to the floor, after briefly resisting one attempt to hang up the phone while talking. Of him being hooded and tied to a chair. Another instance of him being thrown to the ground and stripped naked by three large men. Of a large guard trying to cover the camera before threatening him. Yet what happened to him, when he was just 13, struck me as particularly upsetting.

The boy was grabbed by the throat, held down by the neck by a man twice his size, and stripped completely naked, without even a hint of warning or consent. It was brutal and humiliating. Where was their basic sense of decency?

Yet it is not just the guards who deserve scrutiny. Though the journalist, Caro Meldum-Hanna didn’t discuss it in her report, the burly man who grabbed Dylan by the neck and held him down was tried for assault. A magistrate found him not guilty of aggravated assault in February 2014. And the Supreme Court dismissed the appeal, upholding the guard’s actions as lawful.

The Courts Protect A 110kg Man From A 50kg Boy

The Magistrate was Daynor Trigg. Magistrate Trigg held that the prosecution had conceded that the use of force by the three large men was lawful, but argued that it was excessive. He then held that the force used wasn’t excessive. In appeal, the prosecution denied conceding that the use of force was lawful.

Magistrate Trigg laid out the facts of the confrontation (the guard is identified as “Tasker”):

“Voller was a slightly built 13-year-old youth who weighed something probably less than 50kgs. There was no evidence to suggest that Voller had any skills or tendency to actual physical violence. He was a known (even very well known) spitter. On the evidence, and on Tasker’s knowledge of Voller, the risk from Voller would most likely come from his mouth, rather than from other areas. Tasker was a large male (considerably taller than Voller and at least twice as heavy). Even if Voller did try to punch or kick Tasker (and there was no evidence to suggest that Tasker had any reason to believe this was a possibility) he was unlikely to cause any real harm to Tasker.”

The guard was estimated to be 110-115kgs. Magistrate Trigg observed that the “level of force to be applied to a 13-year-old boy should be considerably less than what may be required to subdue a 100kg adult male.”

Trigg said that it was “clear from the evidence” and from “common sense” that when “subduing” Voller, certain objectives had to be met. These included preventing Voller from striking the three grown men, or from spitting on them.

Magistrate Trigg paraphrased the account of Dylan as follows. Dylan “would spit if he felt scared as he was too young to hit people”. Dylan agreed that he had “threatened self-harm, which is something he did often, every time he got angry”.

When one of the guards, Barry Clee came to the door, he told Dylan that he had to put on the gown, because he’d threatened self-harm. Dylan said he didn’t want to put it on. He spat at the door after Clee left.

When the men burst in, the burly man “grabbed him by the throat with both hands, hard”. He panicked, and had trouble breathing. The large man put all his weight on Dylan’s face and back. He tried to twist his head to get air. He was sore, uncomfortable, and in shock. He said he wouldn’t spit and wanted to be let go. As the man got up, he “pushed off (Dylan) real hard”. Dylan felt “real sore”, and his jaw and whole back were sore for three or four days. He was scared, and wanted to complain.

Though the incident occurred in December 2010, it was almost two years before the large man was charged. Presumably, Dylan had to continue dealing with the guard and his colleagues during that time.

According to the relevant legislation, prison authorities may use the force “reasonably necessary in the circumstances” to maintain discipline, but not physical violence. However, if “an emergency situation exists”, a detainee can be “temporarily restrained”. There are various regulations that apply to a detainee considered “at risk” of self-harm. These include constantly monitoring the detainee, and referring them to a medical professional. The detainee is to be clothed in rip-proof material, and all potentially harmful items should be removed from the detainee’s possession.

The 'restraint chair' used on NT juveniles. (IMAGE: ABC)
The ‘restraint chair’ used on NT juveniles. (IMAGE: ABC)

The provisions also include this theoretically relevant proviso: “Throughout the implementation of this protocol, Youth Workers are, as far as possible, to maintain a humane and supportive attitude in their dealings with the detainee and should make active efforts to dispel the impression that any part of this protocol is being applied for punitive reasons.”

Turning to the account of the guards, Clee conceded that no second attempt was made to talk to Dylan before their entry. There wasn’t even any discussion of this possibility. There was no discussion about giving Dylan another chance to put on the white robe. Dylan had never before needed to be forcibly restrained to be put into the gown.

In the testimony of the burly guard, “The tape obviously shows that I am holding him, but that’s for his safety and our safety… We’re not out to, um, try and hurt him or anything like that… There’s our safety as well to consider……we’re not there as punching bags”. As for why he grabbed Dylan by the throat, “I’ve got him like that and that’s to, to stop him from spitting, because previous to that he was um, spitting”.

Magistrate Trigg found that it “was reasonable and prudent for [the guard]to take hold of Voller in the head area”. It was reasonable to “ground stabilise” Dylan. In holding down Dylan, the guard used a reasonable amount of force. While he may have been able to achieve his purpose with less force, “it is also equally arguable that if he had used less force he could have increased the risk of injury to himself, to Voller, and to Clee and Bryers.”

The risk of injury to a 110kg man by a 13-year-old boy less than half his size. Recall Magistrate Trigg explaining that “Even if Voller did try to punch or kick Tasker (and there was no evidence to suggest that Tasker had any reason to believe this was a possibility) he was unlikely to cause any real harm to Tasker.”

When the Supreme Court of the Northern Territory considered the appeal of this judgment in December 2014, Justice Peter Barr basically affirmed the Magistrate’s reasoning.

Justice Barr also helpfully noted some of the at-risk protocol Magistrate Trigg had left out. For example, “When placing the detainee in the observation room, endeavouring to calm the detainee and inform him regarding the ‘at risk’ procedures, asking the detainee if he requires anything and spending ‘as much time as possible comforting the detainee’”. Though the three men were eager to ensure Dylan wore a white gown, they seemed a little less attentive to that provision. Or the one about being humane.

Justice Barr observed that the Magistrate “did not… mention the fact that the respondent initially took hold of DV by the throat, with his left hand”. As noted above, he preferred to more euphemistically say that the guard took hold of Dylan’s “head area”. Justice Barr held that “the series of actions by which the respondent took hold of DV and took him to ground… was reasonably skilful, and swiftly executed. Force was used, but the force did not appear to be excessive.” He concluded that “an objective description of the actions involved” was that the “degree of physical violence was low level.”

Thus, some of the Northern Territory’s most sophisticated legal minds decided that three large men bursting into a room, grabbing a boy by the throat, throwing him down and stripping him naked wasn’t such a big deal after all. Both the Magistrates Court and Supreme Court found that this use of force was actually supposed to protect Dylan. One hopes that no one ever subjects their children to that kind of protection.

As for that risible claim, I simply ask that you try to imagine what effect that kind of protection might have had on a child who actually was considering suicide.

The Minister And Commissioner Defend It

Anthony Stewart reported on this story for the Northern Territory ABC News in December 2014. He obtained the footage of the altercation at the end of the legal proceedings.

The NT’s Corrections Commissioner Ken Middlebrook defended the guards without reservation. In the video interview, he said “I think the staff acted appropriately, and I supported them. I supported them in court, and I support them now.”

“We have to manage these people when they don’t behave,” he said. “No-one likes to use these sorts of methods, but if these young people don’t behave then there are things we have to do. I will not tolerate young people spitting on my staff, I will not tolerate them throwing bodily fluid or weapons, and if the staff need to constrain those people, that is what they have to do.”

Robyn Lambley, the NT Minister for Corrections also weighed in to support the guards. She complained that the footage on ABC didn’t include “the threats to self-harm and violence displayed by the male youth prior to the incident taking place.” Furthermore, Dylan “has been found guilty of more than 50 criminal offences, many of which were violent acts, over the past five years”. She did not explain why this justified Dylan’s treatment. Presumably she hoped to diminish public sympathy for him.

At the time that this was a public controversy, the Chief Minister of the NT was a man called Adam Giles. On Tuesday this week, he gave an interview to the ABC about the Four Corners report. He claimed to be shocked by some of the footage. He admitted that he was aware of the children being gassed. However, “One of the things I find most abhorrent is to see a child being struck or a child being hit. And the images of a corrections officer hitting a child and particularly throwing a child down, demonising them, stripping them naked, I thought was quite horrific. It is not something that I’d like to see.” Apparently, Giles was unaware of this incident with Dylan.

He said “the incidents around children being struck or demonised and thrown down: I wasn’t aware of that. I mean, those images were put in – all those images were taken well before we came into government and it is not something that we had made ourselves aware of.”

To an extent, this is true. Except for the two court cases, the comments by the Minister for Corrections, the comments by the Commissioner for Corrections, and the ABC release of the footage when he was Chief Minister.

What can explain Giles’s claim? Did he watch that boy get assaulted and stripped by a group of men and forget about it? Does he not follow the news, the Supreme Court, and the statements of his own Corrections Minister and Corrections Commissioner?

If Giles missed all that, he should be fired. The brutalisation of Dylan was not the act of a few rogue guards. The rot, the brutality, the viciousness – it is systemic. It goes to the top, to the Supreme Court, to the Cabinet of the NT Government. They publicly gave the guards a green light, and they should be held accountable for it.

And so should every other state and territory government. The Royal Commission should expand to the rest of Australia, because there is little doubt that there are many more stories like Dylan’s that we have been ignoring for far too long.

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Michael Brull

Michael Brull writes twice a week for New Matilda. He has written for a range of other publications, including Overland, Crikey, ABC's Drum, the Guardian and elsewhere. His writings can be followed at his public Facebook page (click on the icon below right).

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