Police who allegedly indiscriminately sprayed bystanders with pepper spray in Darwin’s CBD could face civil action for negligence or battery, a criminal lawyer has said.
- The Criminal Lawyers Association NT is concerned by the overuse of force or power by police
- They say victims can complain to police, the ombudsman, or pursue civil action
- NT Police Association president Paul McCue said he was confident officers acted appropriately
On December 9, police sprayed a large group of people standing outside Opium nightclub on Darwin’s Mitchell Street to break up an argument, which witnesses said was not violent.
Video obtained by the ABC showed a sustained burst of the spray directed into the crowd.
Mali Page was hit by the spray and said she wished the police had given better advice to affected people, she told ABC Local Radio Darwin.
“[It was] the worst burn I’ve experienced, all over your body and inside your body, and inside your nose and your eyes and your ears, just like fire,” she said.
“The really bizarre feeling [was when] the police officers, when it was happening, were telling me that they have experienced it for training.
“Good for them, they consented, they got paid for it, I did not consent to that, I did not do anything to deserve that and neither did anyone else who was there.”
Ms Page said she went to the doctor the following day and was prescribed steroids and anti-histamines which she said helped to reduce the swelling and “took the edge off the pain”.
“It’s the simple things like that, I wish the police had told us things like that would help, or told us to seek medical attention, or told us to use detergent to wash, not just water,” she said.
“I think if they’re going to use a product they should have an understanding of how it works and how to help people afterwards.”
Mali Page and her father Jaemie outside Opium nightclub on Darwin’s Mitchell Street. ((ABC News: Dane Hirst))
Potential for negligence, battery claims
There were a number of avenues for victims to pursue if they felt it was warranted, said Marty Aust, President of the Criminal Lawyers Association of the NT (CLANT).
“Simple things such as giving appropriate information to innocent bystanders is certainly something that should have been considered, clearly,” he said.
Mr Aust said the incident was frighteningly reminiscent of the tear-gassing of youths at Darwin’s Don Dale youth detention centre, which sparked a royal commission.
“What we need to do is be hypervigilant as members of the community to ensure that people that possess power over us use that power in a responsible way and are held to account if they go beyond using that in a responsible way,” Mr Aust said.
“I’m always concerned whenever there is what appears on its face to be overuse of force or using power in a way that’s not consistent with the mandate of the police force, or anyone who has power over the common citizen.”
He said victims could complain to the ombudsman, as several already have, or take things further in their own right, such as pursuing a civil action.
But he acknowledged the cost was often off-putting, and there is a two-month limitation on making the complaints, so victims should move swiftly and get legal advice if they did want to go further.
“Certainly there may well be scope for some sort of civil action in torts for negligence or even battery,” Mr Aust said.
He said there was “absolutely” the potential for an assault claim to be filed.
“That will depend on the facts of the matter, and that is probably yet to be established in its entirety and that’s probably part of the investigation by the ombudsman at the moment, and police are probably looking into it at the moment,” he said.
But he declined to say there was a problem in the Northern Territory with police doing the wrong thing.
“I certainly wouldn’t like to say that we do, I know that predominantly all of the people in the police force and those in prisons systems are there doing the best they can and working to the best of their abilities to be consistent with the powers they have,” Mr Aust said.
“But as with any organisation and as with common human existence you will have some people that go too far or under pressure react in a manner that is completely unacceptable and puts people at risk.”
Police union defends officers’ actions
Head of the NT Police Association, Paul McCue says police would only use capsicum spray during a serious incident. (ABC News: Shahni Wellington)
NT Police said it had received complaints about the use of capsicum spray and that they would be assessed in conjunction with the ombudsman.
The NT Police Association said capsicum spray was a tactical option for officers, although they did not like having to use it.
“They’re in volatile situations. That particular incident was late at night in one of the busiest streets in the Territory, it would take a serious incident generally for spray to be deployed,” association president Paul McCue said last week.
He said he was confident that the police officers acted appropriately.
“We don’t know the particular circumstances around it, what I do know is police have a tough job and they obviously take each particular situation on its merit, decisions have to be made in a split second,” he said.
–Top Twitter To Follow: