Actions of guard found to ensure 'safety of Dylan Voller'

By KIERAN FINNANE
 
The acquittal on aggravated assault charges of the youth worker (guard), who held 13 year old Alice Springs boy Dylan Voller pinned to a mattress in Aranda House in December 2010, will not answer all of the questions the public have about this incident, including the non-legal question of whether this is any way to deal with a troubled youth no matter how provoking his behaviour.
 
The incident, images of which are now being shown around the world, is but one of the many highlighted by last Monday’s Four Corners program, and the only one to date to come before the courts.
 
It shows a whirlwind set of manoeuvres by three men to immobilise Voller on the mattress – the procedure is called “ground stabilise” – while he is stripped of his clothing and his cell is cleared of the playing cards he was holding and the bits of paint he had peeled from the walls.
 
Only one of the men, youth worker Derek Tasker, is involved in the application of force, allowing the others to do what they do. The procedure follows, in part, an Emergency Management Protocol for dealing with “at risk” detainees. Its point is to remove any hazardous materials from the detainee’s room to prevent self-harm. This includes removal of normal clothing and the provision of a non-rip gown.
 
First though, in light of the emphasis of Chief Minister Adam Giles on his knowledge of incidents being limited to “our time in government”, it is worth being clear about the timeline of this incident and the prosecution and acquittal of the youth worker.
 
The incident occurred on December 9, 2010. Voller made a complaint that day to police. There was an initial interview by police and an effort to obtain the CCTV footage of the incident. For unexplained reasons it was not available and eventually the police closed the investigation. It was claimed by the officer conducting it that he had been told by another officer that Voller no longer wanted to pursue the complaint.
 
Meanwhile the Children’s Commissioner got hold of the CCTV footage and forwarded it to police, causing the investigation to be reopened in February 2012.
 
During all of this time a Labor Government was in power in the Territory. The Country Liberals came to power in August 2012.
 
On November 13,  2012 the youth worker, Derek Tasker, was charged with aggravated assault.
 
Issues around the admissibility of the CCTV footage in the form available caused the charges to be dropped in July 2013, but the charge was re-laid on September 27. The case was finally heard by Magistrate Daynor Trigg on December 5 and 6, 2013.
 
Mr Trigg delivered his decision on February 5, 2014, finding Tasker not guilty.
 
Significantly, one would think, in terms of who knew what when, that decision was appealed by the Director of Public Prosecutions. The hearing by Justice Peter Barr was on June 23, 2014, and his decision, which dismissed the appeal, was delivered on December 1, 2014.
 
Later that month, ABC Alice Springs journalist Anthony Stewart reported on the case, including the CCTV footage that went to air on ABC TV News.
 
From the time the charges were laid to the decision of the Appellate Court and the ABC broadcast of the footage – with commentary by then Corrections Commissioner, Ken Middlebrook, then Children’s Commissioner Howard Bath, and a Human Rights lawyer – the Country Liberal Government was in power.
 
Mr Giles, questioned about what he had seen when by a commercial radio station on Friday morning, said: “I mean I had seen the footage of the gassing component [in August 2014] before because that was in our time of government and that’s been referred to police, it’s been immediate, but any of the footage before we came to government I hadn’t seen.”
 
If this is so, we can only ask under what rock has the Chief Minister (and his advisers and Ministers) been living?
 

ASSAULT WAS ‘AUTHORISED’ SAYS YOUTH WORKER

 
Before Magistrate Trigg, youth worker Tasker admitted that he assaulted Voller – in that he applied force to him without his consent – but denied that the assault was unlawful.
 
According to Mr Trigg the prosecution accepted that the assault was “authorised” under the relevant legislation and protocols for dealing with “at risk” detainees, but contended that the force used was excessive.
 
The documentation of Voller’s detention at that time was in a shambles. It is unusual to see exclamation marks in a written decision. Mr Trigg writes:
 
“There is no ‘declaration of at risk status’ form (appendix A) relating to 9.12.10!” and “There is no ‘individual management plan’ form (appendix B) relating to 9.12.10!”
 
An “at risk – observation sheet” was available but it did not make mention of anyone entering Voller’s observation room at the time of the alleged assault.
 
“I find this most surprising,” writes Mr Trigg, noting numerous other deficiencies with the paperwork. However, the first entry on the observation sheet, made at 20.42 on that night reports that Voller was “lying on right side screaming”.
 
A separate unsigned “incident report” said that Voller made a threat to kill himself at 20.40. This was heard by Tasker and another youth worker, Jason Bryers. Voller was spoken to about it by the officer in charge, Barry Clee.
 
According to Mr Trigg, the prosecution case accepted that “at risk” procedures were invoked at this point.
 
From the incomplete and at times inaccurate paperwork, Mr Trigg could not establish that this was so but “it would be unfair on Tasker” if he did not proceed on the assumption that it was. If it were not so, there would have been no basis for making Voller wear the “at risk” robe and if he hadn’t had to wear the “at risk” robe then there would have been no lawful basis for “Tasker applying any force to Voller so that he could be stripped”.
 
Clee had asked Voller to put on the gown himself at 20.40. Voller refused. The gown was not left with him. Clee said Voller spat at him as he was closing the door. He gave evidence that Voller had spat at him some 200 times in his various dealings with him.
 
Voller had previously been in an “at risk” gown on December 7, apparently without incident. Both Clee and Tasker were involved on this date.
 
Apart from getting the detainee to wear the non-rip gown, the Emergency Protocol outlines other requirements, as referred to by Mr Trigg: “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.”
 
In the appeal hearing Justice Barr noted further the requirement to “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’.”
 
On the basis of the CCTV footage there is no evidence of any efforts from the youth workers in this regard, and certainly when they hurriedly exit the room leaving Voller naked and alone, he appears distraught. None of this was explored in his decision by Magistrate Trigg.
 
Justice Barr, going over the evidence, noted: “There was no further communication between Barry Clee (or any other youth worker) and [Dylan Voller] after 20:44 hours, when [Voller] refused the non-rip gown, up to the time [Tasker], Bryers and Clee entered the observation room at 20:51 hours and the alleged assault occurred.”
 
The first physical contact by Tasker with Voller is that he grabs him by the throat. He said he only did this to stop Voller from spitting at them. Although he said “your best restraint is no restraint” in this instance he was “left no alternative”: “The tape obviously shows that I am holding him, but that’s for his safety and our safety and I’m certainly not and I’d like to just describe again, it’s just holding, I’m not you know, holding hard, all I’m just trying to do is just control the situation.”
 
Mr Trigg noted that in cross-examination Crown Prosecutor Stephen Robson had appeared to suggest that Tasker should have tried something else before resorting to force. However, Tasker was not in charge, Clee was, and in the distribution of tasks, Clee was the communicator, Tasker’s role was to “ground stabilise” while Bryers was to remove Voller’s clothes. It was all done “at the quickest reasonable speed” and in Mr Trigg’s view “Tasker cannot be criticised for any overly prolonged physical contact with Voller”.
 
In considering whether the level of force was excessive, as the prosecution contended, Mr Trigg noted the size differential: “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.”
 
Nonetheless he found that there was “no gratuitous strike or punishment inflicted” and that it was “reasonable and prudent for Tasker to take hold of Voller in the head area and turn his head away from him, and use sufficient force to keep his head pointing away”.
 
He accepted that it was necessary to ‘ground stabilise’ Voller to reduce the risk of Bryers being punched or kicked when it came to removing Voller’s clothing; to reduce the risk of Voller hurting himself; and to give Tasker the best opportunity of exiting the room/cell without repercussions from Voller.
 
He found the degree of force used to take Voller to ground was not unreasonable: “Voller was not lifted off his feet and thrown onto the ground. He was not ‘pole-driven’ into the mattress.”
 
“Whilst it is arguable that Tasker might have been able to achieve his lawful purpose using less force than he did, 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.”
 
On appeal, Justice Barr did characterise the series of actions as “physical violence” albeit of a “low level”.
 
The manoeuvre of taking Voller to the ground “was reasonably skilful, and swiftly executed”, said Justice Barr. “Force was used, but the force did not appear to be excessive. It probably did not require significant force for [Tasker] to turn [Voller’s] head to one side and then unbalance him to put him to ground, face down on the mattress. [Tasker] said in evidence that he ‘guided’ [Voller] down onto the mattress, and that is consistent with what the CCTV depicts; [Voller] does not appear to fall heavily. [Tasker] said he was very mindful throughout of the significant difference in weight between [Voller] and himself.”
 
The prosecution case relied on the statutory prohibition of physical violence for maintaining discipline. However, in Justice Barr’s view  the actions were not taken for the purpose of maintaining discipline but rather to “ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise”. To this end, the restriction on the use of force as reasonably necessary did not apply.
 
“I am satisfied that the purpose of the conduct engaged in by [Tasker] from 20:51:39 hours on December 9, 2010 was not to maintain discipline at the detention centre, but was rather for ensuring the safe custody and protection of [Dylan Voller].”
 
Clee, Bryers and Tasker were not forcing Voller’s compliance “but were acting to ensure that they, as youth workers at the detention centre, complied with their obligation to remove the detainee’s clothing after the detainee had refused to do so. It is an important factual distinction. They were not making [Voller] take off his clothes; they were removing [his]clothes because [he] had refused to do so” in order to “deny him the means of suicide or self-harm”.
 
Meanwhile, as drawn attention to by Amos Aikman in The Australian (July 29), the Youth Justice Act  has been amended so that only the Corrections Commissioner or a person authorised by the Minister can commence proceedings for an offence against that Act and the proceedings must commence within six months of the Commissioner becoming aware of the offence (s 215A).
 
The Youth Justice Act was not the only relevant legislation in the case brought against Tasker; clauses of the Criminal Code were also relevant. However, given the specific focus of public controversy and the Royal Commission on juvenile detention, these changes to the Youth Justice Act may limit future legal action in relation to what many see as abuses of power against vulnerable (even if difficult and at times dangerous) youths.