childdetentionnt.royalcommission.gov.auchilddetentionnt.royalcommission.gov.au/.../Transcript-2… · Web view.ROYAL COMMISSION 27.3.17P-1868J. SIZELAND XN ©Commonwealth of AustraliaMR

AUSCRIPT AUSTRALASIA PTY LIMITEDACN 110 028 825

T: 1800 AUSCRIPT (1800 287 274)E: [email protected]: www.auscript.com.au

TRANSCRIPT OF PROCEEDINGS

O/N H-762185

THE HONOURABLE M. WHITE AO, CommissionerMR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO THE CHILD PROTECTION AND YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

DARWIN

10.32 AM, MONDAY, 27 MARCH 2017

Continued from 24.3.17

DAY 22

MR P.J. CALLAGHAN SC appears with MR P. MORRISEEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMR P. BOULTON appears with DR DWYER for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR J.B. LAWRENCE SC appears for ADMR G. O’BRIEN-HARTCHER appears for AGMS P. MORREAU appears for the mother of AJ

.ROYAL COMMISSION 27.3.17 P-1864©Commonwealth of Australia

5

10

15

20

25

30

mailto:[email protected]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

PUBLIC SESSION RESUMED

RESUMED [10.32 am]

COMMISSIONER WHITE: Mr Callaghan.

MR CALLAGHAN: I call James Sizeland.

MS BROWNHILL: He’s on his way, Commissioners. He’s just coming from the jury room.

COMMISSIONER WHITE: Thanks, Ms Brownhill.

<JAMES SIZELAND, AFFIRMED [10.33 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

MR CALLAGHAN: Could you tell the Commission your full name, please?---James Sizeland.

Mr Sizeland, you’ve prepared several statements for the purposes of this Commission; is that correct?---Yes, that’s correct.

Commissioners, at this stage, I tender statement 109 which is Mr Sizeland’s statement of 10 February 2017.

EXHIBIT #169 STATEMENT 109 OF MR SIZELAND DATED 10/02/17

MR CALLAGHAN: Statement 17 which is his statement of 13 February 2017.


.ROYAL COMMISSION 27.3.17 P-1865 J. SIZELAND XN©Commonwealth of Australia MR CALLAGHAN

5

10

15

20

25

30

35

40

45

MR CALLAGHAN: Statement 130 which is 10 February 2017.


MR CALLAGHAN: Statement 37 dated 17 February 2017.


MR CALLAGHAN: And an as yet, I think, unidentified statement dated 26 March 2017.

COMMISSIONER WHITE: That’s a bit difficult if it’s unidentified.

MR CALLAGHAN: It’s the statement of Mr Sizeland dated 26 March 2017.

COMMISSIONER WHITE: Thank you.

EXHIBIT #173 STATEMENT OF MR SIZELAND DATED 26/03/17

MR CALLAGHAN: Mr Sizeland, you’ve been employed in one way or another in Corrections since 1995; is that correct?---Yes, that’s correct.

And you were the deputy general manager at Don Dale between February 2014 and May 2015?---Yes, that’s roughly correct.

What were you doing immediately prior to that in February of 2014?---I was working on the commissioning team for the Darwin correctional precinct.

The role at Don Dale was your first in juvenile detention, was it?---Yes, that’s correct.

Did you have any previous training in working with children?---No, I did not.

Do you know why it was that you were selected or what it was thought were your qualifications to have the role that was given to you?---No. I’m not 100 per cent sure why I won the job. I won the position on merit through a selection panel.

Alright. When you started work at Don Dale, you were immediately confronted by a number of problems; would you agree with that?---Yeah, there were a number of issues at Don Dale, yes, that’s correct.


5

10

15

20

25

30

35

40

45

I’ll take you through some of them: just the general problem of retaining staff was already an issue when you started; would you agree with that?---Yes, I would agree with that.

The work conditions and remuneration were not, in your view, appropriate for the type of work and the efforts that the staff were making, would you agree with that?---Yes, I would agree with that as well.

There were also issues, or had been issues with escapes prior to your arrival; is that so?---Yes, that’s correct.

Three separate incidents in the previous year where a number of detainees had made their ways into the roof cavity; is that right?---There were three but I believe there might be more.

Alright?---Okay. Yes.

And how much of this was a function of the fact that the facility itself was inadequate?---I think it was a combination of inadequate staff training and an inadequate and unskilled facility.

Was this – I suppose when you start a new position it’s hard to get a sense of priorities but was this an immediate priority for you, the question of security?---No. The centre security was one of a number of priorities that I had, but yes, it certainly was a consideration and a concern.

COMMISSIONER WHITE: You don’t need to lean forward, Mr Sizeland---Okay.

It’s a reasonably good mic---Okay. Sorry.

Thanks.

MR CALLAGHAN: Did you put in place any specific measures to prevent escapes?---Initially, no. No, I just got a feel for the centre. There were a number of changes that were made but I don’t believe they were specifically security minded, no.

And just whilst we’re still on the condition of the facility itself, do you know about any issues involving asbestos at the facility?---Not in the Don Dale Centre. I’m not aware of asbestos in the old – if we’re talking about the old Don Dale?

Yes?---No.

Okay. Going back to the issues that you confronted, we’ve talked about staff retention, escapes, recordkeeping and information management was poor. That was something that you noticed straightaway; is that right?---Yes.


5

10

15

20

25

30

35

40

45

In fact, I’m going to take you to some documents you’ve given some interviews and I’ll be refreshing your memory about some things that you’ve previously said. There was an interview in 2015 with the Children’s Commissioner, that’s standard – supplementary tender bundle 227 which has not yet been tendered so I’ll tender that before I forget.

COMMISSIONER WHITE: That will be exhibit 169.

MR CALLAGHAN: And can I take to you page 125 lines 1 to 25, you may not have seen it for a while.

COMMISSIONER WHITE: Just a moment, Mr Callaghan, I got the numbering wrong.

EXHIBIT #174 SUPPLEMENTARY TENDER BUNDLE 227

COMMISSIONER WHITE: Sorry, Mr Sizeland, Mr Callaghan.

MR CALLAGHAN: That’s alright. Thank you, Commissioner.

Mr Sizeland, I’ve just got that transcript of that interview and again it’s not a quiz. I just put that there to refresh your memory, if you need it?---Mmm.

But I was interested in what you said there about talking to people about accountabilities and trying to journalise things and they’d just give you the most blank look?---Yes, I – I made that statement. That’s correct.

And in making that statement, were you conveying the picture in which recordkeeping was simply not something that was – or the need for recordkeeping was not understood generally by the staff as at the time you arrive?---The issue of recordkeeping and journalising things in that particular statement, I think, probably could be well explained by the fact that when I – as a correctional officer, in my experience as a correctional officer, we would journalise a lot. There was a lot of checks and balances in that place and that was a very heavy component of our training. When we did our initial course and it’s something that we’re actually assessed on. That training and assessment didn’t exist in the youth justice space. Staff weren’t aware of the importance of recording things and appropriately journalising things, yeah, that’s probably the best way I can explain it.

Just because they hadn’t been trained?---Well, they hadn’t been trained and that has led to a number of issues where staff became very slack in these areas and I don’t think they understood the importance. And that also reflected on the staffing model as well. There are issues in that space too, where there was really no one to do the checks and balances in a lot of those areas.


5

10

15

20

25

30

35

40

45

Can you just explain what you mean by that?---With the checks and balances?

Yes?---With the checks and balances in my previous experience there are actually positions that would do regular audits and compliance in relation to journal keeping, journal entries. There was actually positions that were specifically designed to do those checks and balances. Those positions didn’t exist in youth justice. There was just literally nothing - - -

COMMISSIONER WHITE: But where would they sit in the hierarchy?---In the correctional world they were sitting as correctional officers and also the seniors would play a role in ensuring that those things were signed off. However, in the youth justice role that level would be a shift supervisor position, to which you only had one on each day.

MR CALLAGHAN: On that transcript that you’ve got in front of you, you’re talking about training but it’s in the context of this discussion about accountabilities and recordkeeping, you use the phrase “long-term systemic issues”. Do you have a sense of for how long these had been systemic issues?---No. I believe a lot of the issues at Don Dale dated back a considerable period of time but for me to put an actual date on it I couldn’t, but I do believe it’s quite a span – a lot of these issues had been in place for an extended period.

COMMISSIONER WHITE: Are you talking about years and years?---Yes, I’m talking years and years.

Perhaps to the inception of the Youth Justice Act?---Possibly. Look, I wasn’t there.

No, I realise that---So I can’t say if it started off very well and went downhill or that’s the way it’s always been but I did get a sense from some of the long-term staff that - - -

Thank you--- - - - that’s the way it’s always been.

MR CALLAGHAN: It was not just in respect of recordkeeping that you thought that training was, or had been inadequate, was it? Your opinion, and again I can refresh your memory by reference to page 31 of this interview, but by all means don’t feel limited by what’s there. We’re interested to know what your view was about the situation with training generally at the time – at the time you arrived at Don Dale?---I thought the – I thought the training course, what was provided was very inadequate for the work the staff were doing.

And succinctly you put it in that interview, the whole thing was a joke; is that right?---That was my opinion, yes.

In fact, you made recommendations about this and we can go to either your statement or perhaps to pages 44 and 45 of the interview that’s on the screen. But you made a recommendation that YJOs obtain a certificate in youth justice; is that right?---Yes.


5

10

15

20

25

30

35

40

45

I believe that was actually part of the beta recommendation as well that we – that we have a formalised training model put in place for Youth Justice Officers that takes any starting Youth Justice Officer to a certificate 3 level and then there’s subsequent additional qualifications as the – as you go up the rank structure, for lack of a better words, so if you’re a senior then you’d have to have a certificate 4, shift supervisor would be looking at diploma level qualification. I was part of the working group who put together the core competency units for that particular training program and I believe it’s actually in place now.

Going back then, how did you make the recommendation and what happened to it?---Recommendations that I made at that particular time was made to the superintendent and to the Executive Director in relation to a number of the training flaws that I observed within the centre.

And when we use a term like superintendent, would you mind just identifying who we’re talking about at the time that you were doing these things?---The general manager.

Yeah, but actual names rather than titles?---Okay. Mr Russell Cardwell and the Executive Director, Ms Cohen.

Thank you. You also, I think, flagged training issues with the Commissioner and that’s what is referred to on the screen in front of you. Can you take a look at that. You talk about training being flagged a long time ago, put on the table a long time ago but the Commissioner directed that all resources be put into opening the new jail?---Yes.

MR O’MAHONEY: I object to the premise in the question. I’ve only had the most fleeting of moments to look at the document on the screen as has the witness but I can’t see questions and answers in it that accord with the premise that my friend put to the witness. It may be they are there and my friend can specify them when there’s talk of approaching the Commissioner.

COMMISSIONER WHITE: That it relates to Commissioner Middlebrook or what’s the missing proposition.

MR O’MAHONEY: My friend, I think, just put a question on the premise that approaches had already been made or also been made to the Commissioner, it wasn’t specified which Commissioner, but about training and I just can’t see – it was indicated that there was something on the screen before us to that effect. I just can’t see it, Commissioner.

COMMISSIONER WHITE: Well, we’ll have a look at it. Mr Callaghan.

MR CALLAGHAN: Perhaps he could look at it.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: You’re referring, I take it, on the paragraph that’s on page 45?

MR CALLAGHAN: Bottom of page 44 line 30 through to page 45 line 20.

COMMISSIONER WHITE: Perhaps you can ask the question then who is the Commissioner to which Mr Sizeland – to whom Mr Sizeland is referring at the top of the page, if that’s the concern that Mr O’Mahoney seems to have.

MR CALLAGHAN: There’s only one Commissioner that we’re talking about for the duration of your - - -?---Yes, there’s only one Commissioner, Mr Middlebrook.

MR O’MAHONEY: I’m grateful for that, the concern was the suggestion was there had been an approach to the Commissioner about training. I’ve taken an opportunity, my friend invited me to look at this document. I can’t see it in the document. There might be nothing in it.

MR CALLAGHAN: Let’s go through it. Mr Sizeland you were talking about training in this passage?---That’s correct.

And you said it was put on – something was put on the table a long time ago?---Yes, that’s correct.

Talking about the subject of training at that point?---That’s correct.

And you went on to say:

The Commissioner directed that all resources would be put into opening the new jail.

?---That’s what I was informed yes.

He said:

Everything gets put on hold.

?---Yes, that’s what I was informed, yes.

Everything including training?---Yes, the training package that we envisaged for youth justice was put on hold.

Yeah?---Due to the opening of the new correctional centre, that’s correct.

COMMISSIONER WHITE: Perhaps you can enlighten us, Mr Sizeland, did you yourself put up a memo that went to the Commissioner, to your knowledge, about youth training?---I didn’t put a memo to the Commissioner directly myself, no. I worked through the chain of command which is - - -


5

10

15

20

25

30

35

40

45

I understand that. I thought you might have got some feedback through the chain of command back down to you?---That’s how I receive the information, yes.

You did receive some indication from the Executive Director, perhaps, down through the general manager?---From the Executive Director that the training package would be the put on hold until the new correctional centre was opened.

Thank you. Thanks, Mr Callaghan.

MR CALLAGHAN: Thank you, Commissioner, that’s the direction the question was taking.

So in short, Mr Sizeland, you – when you took over you had all of these concerns about recordkeeping, training, infrastructure and so on?---They weren’t limited to those concerns but they were a number of the concerns that I had, yes.

What were some of the concerns that you had?---I thought the case management classification system was very rudimentary. I don’t believe they were engaging in a proper process of progressing young people in relation to their risks and needs. There didn’t appear to be any programs running within the centre and I don’t believe a lot of thought had been given to things such as the daily shift pattern, the daily staffing model and the structure of activities that may or may not occur in coordination with the classification system.

Alright. Well, we might come back to some of those as we go.

COMMISSIONER WHITE: Sorry. Did shifts include rostering?---The roster wasn’t – I don’t believe the roster was very robust. I don’t believe there was an appropriate staffing level. But the shift patterns actually, that I’m referring to, was actually talking about the starts and finish times of staff and how that impacted on a structured day.

Thank you.

MR CALLAGHAN: Let’s just stick with the topic of training the YJOs. The training they had was inadequate to your assessment?---In my opinion it was inadequate, yes.

Did you then take it upon yourself to give them some training of your own?---Yes, I did do some training with Youth Justice Officers.

And you heard, or have been taken to the evidence of Mr De Souza, evidence in this Commission. Has that been something that you’ve had the opportunity to read?---Yes, I have.

Indeed, you’ve responded to it in your statement?---Yes, I have.


5

10

15

20

25

30

35

40

45

And, in a nutshell, in relation to Mr De Souza’s evidence, which for the record we don’t need to see it but it’s at transcript 1647, he said to us that he’d said to you, “Well, this isn’t authorised training, you haven’t gone through me”. Your response is you didn’t need his approval because you had Mr Caldwell’s; is that right?---That is correct, yes.

And can I just ask when and how you obtained Mr Caldwell’s approval?---That was just through an informal discussion that I’d do some – do some training with some of the staff. Mr Caldwell was quite happy for me to do that.

COMMISSIONER WHITE: And to your knowledge, was that discussed or cleared with Mr De Souza who was the training officer?---No, it wasn’t.

MR CALLAGHAN: And there’s no formal record, to your knowledge, of that being submitted by you for approval or Mr Caldwell considering what was involved? It was – I’m not saying there’s no formal record of that, is that - - -?---I’m not – not aware of a formal record, no.

Alright. I take it your training model, if I can call it that, was simply drawn from your own experience?---It was drawn from a number of experiences I’ve had over an extended period of time, yes.

Working within the correctional environment?---Working within the correctional environment and I’ve also – used to hold qualifications as an instructor as well.

What sort of instructor?---Defensive tactic instructor and I had my certificate 4 in training and assessing.

Mr De Souza also spoke about the fact that this training or, in effect, that there was a group of staff that was hand picked by you, and again you’ve made your response to that in your statement. Can I just ask you about a couple of the staff involved though. Mr Kelleher, he was a friend of yours?---Yes, we were friends outside of work.

And you hell a high opinion of him as a youth justice worker – Youth Justice Officer?---I thought he did a good job as Youth Justice Officer, yes.

We won’t dwell for the moment on anything to do with Dylan Voller, but as an example of that was it the case that you, in effect, gave him a special task of managing Voller?---He did work with – am I allowed to say his name? I’m sorry, I didn’t think I was allowed to say detainees’ names.

COMMISSIONER WHITE: You can say his name. He has given public evidence---Thank you. He did do a lot of individual work with Mr Voller, yes, that’s correct.


5

10

15

20

25

30

35

40

45

MR CALLAGHAN: Did you, in effect, give him free rein, I think that was the words he used?---I wouldn’t say free rein but he did a lot of work with him, yes.

Thank you for your caution with detainees’ names, we are trying to be careful. Look, I’m not going to take you through all the references that you will have encountered or been asked about relating to Jimmy’s Boys or that sort of thing. I don’t think anyone suggests that’s a phrase that you’ve used. That’s one that you’ve subsequently heard but what I’m – would like to get you to comment on though is the proposition that within Don Dale there was what has been called a macho culture. Was that just a reflection of the sort of working environment that it was? Sorry, first, would you accept that that was – that was so, that it was a very masculine sort of environment and secondly was that because that was the sort of work you were doing?---Actually, I don’t necessarily accept that, that there was a masculine environment. There was a very wide range of staff who worked there from a whole range of backgrounds. I don’t accept it was actually a masculine environment when I started there, that was fairly much consistent for the period of time that I was there.

One of the things that Mr Kelleher talked about was your efforts to introduce rehabilitation programs?---Yeah, sorry.

Well, he suggested that you – I’m paraphrasing – but that you tried hard but you’d get shut down by management?---I did start a number of programs in youth justice. Management were quite supporting of a number of these programs but in my time management did shut down a program, yes, that’s correct.

Well, can we just – which ones did you introduce that they were supportive of?---I – okay, I so I commenced a stay sober strong program which I fitted it into a structured day, so it ran outside of education hours. That was a psycho-ed program that I had rewritten with the oversight of a psychologist to be delivered in the youth justice space. That was a rolling program that attended, that ran two afternoons a week for the boys and one afternoon a week for the girls and I made a point when the boys had finished that program and the girls to actually sit in on them and congratulate everyone on the last program. The other programs that I commenced – and this fits into the classification case management process – is that I commenced some external work activities which – which eventually evolved into what was known as the SEED program, that was the acronym that was given which stands for seek education, SEEK.

COMMISSIONER WHITE: Education and employment, instead of detention?---Thank you, yes, sorry, I had a blank then. Which eventually morphed into that and that was under the direction of the Minister so we were doing a number of external work programs with a few of the detainees who met those particular criteria under the classification manual who were of a certain age where they may not have been doing education and in one or two cases we worked closely with the Education Department to deliver education lessons that were outside of working hours. There were a number of sporting events also which was the velodrome program and prior to my commencing – and a gym program for one of the females


5

10

15

20

25

30

35

40

45

and prior to my commencing there was another gym program running that was run on an amateur boxing basis.

MR CALLAGHAN: And these were - - -

COMMISSIONER WHITE: I’m a bit interested, Mr Callaghan, in the training for work. That fits within your scheme to hear a little more about that.

MR CALLAGHAN: Yes, Commissioner, indeed.

These were the things that were being supported by management; is that correct?---Yeah. Yeah. Look, I - - -

Sorry to interrupt, but you just heard the Commissioner’s question?---Sure.

Can you elaborate on that on that aspect?---On the training for work? Sure. We had a – and I think one of the challenges was, look, I had a very supportive superintendent and it’s actually director in this particular space, because - - -

COMMISSIONER WHITE: If you would be kind enough to name them?---Russell Caldwell and Salli Cohen were very supportive in this particular area in my opinion and experience that I had in the case management space it actually fit into a best – it was a best practice model of trying to engage with community work placements. We had – excuse me – had one detainee in particular, we’re not talking very big numbers but we had him working on a construction site and I was – he was an open security rating detainee, we’d sign him out on a leave of absence. By the time he left custody what we’d done with him – and, unfortunately, this was not very well resourced and I don’t mean it to be inappropriate, but this was generally through our own contacts. We had actually arranged – once he finished working and has experience on the building site, that meant things like having his white card, experience with work, health and safety, experience on a work site, we actually managed to gain him permanent employment on a new worksite that was starting in Darwin for someone who had contracts. That same boy also fit in with his particular, I guess, centre’s plan. I put a lot of time and effort into him as well, ensured that he had his provisional driver’s licence when he left work – when he left Don Dale and I believe his parents, who were quite supportive actually, were also going to purchase a car for him, so he could fall into the space of actually being quite self-sufficient going to and from work. On another occasion we approached the Territory Wildlife Park, one of our young detainees who again fit this criteria of being an open security rating and being of that particular age where he could, you know, not – or he chose not to attend school full-time, we had him working at the Territory Wildlife Park as a volunteer doing work there as well. He actually wanted to do work as a Territory Ranger and we did actually put a fair bit of resources – you know, this had extended right through to the period of time of the old Don Dale through to the – for the period of time they were at the Holtze Centre and also went through to the new Don Dale as well. So we managed to do this and even though in times we were under a fair bit of stress with staff shortages we managed to maintain that sort of continuity for him. I


5

10

15

20

25

30

35

40

45

believe we also had him doing some home visits was well. His parents were quite supportive. And we also, through work that was done in head office, once the SEED program actually got a name and a title and we actually started putting, you know, some more resources from head office into it, we received funding for staff to do the Karen Sheldon Catering course which was a certified course in cookery and that was, again, run for a number of detainees that we would, you know, drop off and pick up on open security rating activities. We also had the – some – I think we – there was also some – and I’m stretching my memory a bit here, but I’m sure through the velodrome program we also had one or two of our boys do some work experience at a bicycle shop, fixing bicycles and engaging in those sorts of activities. I would like the program to have been, obviously, a lot bigger but as it was an unfunded exercise that I was undertaking, I guess, with limitations we had, you know, we were doing the best we could in the environment.

COMMISSIONER WHITE: Alright. So you’ve mentioned perhaps five detainees over the period?---I think - - -

Would there have been some more?---I think there was some more than that, yes. I think there was some more. I would – I’m – look, I haven’t kept a list, but I think there was more and we put a lot of time and engagement, obviously, with those detainees in relation to undertaking these activities. Yeah.

Thank you. Thanks, Mr Callaghan.

MR CALLAGHAN: Can I just pick up on the fact that in relation to that last one you were talking, you said it was unfunded. Were these just things that you were doing of your own initiative - - -?---Yes.

- - - within - - -?---I was doing these activities within the scope of my staffing model. That’s correct, yes.

So it wasn’t as if it was coming down from above, as it were?---It was coming from above in respect of, you know, these – when I proposed to Mr Caldwell that we do these activities, that as I said, I’m of the opinion it fits into the – an appropriate case management model, that they were very supportive of me undertaking them, but if you’re asking me if I had an employment officer in the centre, no, I didn’t. I used my existing staff. If you ask me if I had staff designated to do the drop-offs and pick-ups to and from work, no. On occasions that was activities I took on myself, if I was short-staffed I’d actually – on more than one occasion I’ve driven the kids to – whether it be Territory Wildlife Park, whether it be the Karen Sheldon Catering course, you know, it was a case of we simply made it work within the structure we had.

In a similar vein, you mentioned the safe sober strong program but in your statement – sorry, I probably know what I’m going to ask you, in your statement you say it was unfunded for a period of time, again is that just something you made work?---That was something I made work. Through my previous employment as the centre’s


5

10

15

20

25

30

35

40

45

management coordinator of Darwin prison, I actually had a lot of contact with people who ran and delivered programs and I had the – and that’s essentially where I sourced the staff member to come in and deliver the program as one of the clinicians who worked at the Darwin correctional centre. I sought approval for her to be paid to come in on overtime and I did so in a sense that, as I said, that it wouldn’t interrupt with the daily activities of education, so it was a program that ran after – after school hours. And the plan was that the – that once the initial program was – had been run for a period of time, that the case workers within the centre would then take over that responsibility of running that particular program. So the idea was it was going to be a rolling program and for every obvious reason I thought it was quite appropriate in relation to the issues that some of the young people faced in relation to substance abuse, drugs, alcohol.

COMMISSIONER WHITE: In your experience, Mr Sizeland, were the majority of the young people coming into your detention centre experiencing problems of addiction with cigarettes, alcohol and other drugs of dependence?---Yes, and in opinion, just my opinion, I believe it was getting worse as – during my time.

MR CALLAGHAN: Can we come back then to the suggestions that were being made by Mr Kelleher, because you’ve told us about things that you were doing and that you were fitting within your own circumstances, but he gave a specific example of a program into which some energy was invested but which was subsequently closed down?---Yes.

You’re aware of the example - - -?---Yes.

- - - in particular?---Mmm.

Do you recall that particular program or that initiative being closed down on the basis that, as Mr Kelleher explained it to us, it was deemed to be a thug’s sport and not appropriate?---I do remember that being closed down, yes.

And did you have a view about that?---Did I have a personal view about it?

Yes?---Yes, I do.

And that is?---Well, you know, I mean - - -

COMMISSIONER WHITE: Are you going to share it?---My personal view on that, on that program was – and I had this discussion with some people, I thought it was a very bold program. However, you know, I don’t think it’s any secret that I have an amateur boxing background. I’ve seen a lot of kids exercise and train, I used to box at the PCYC, the Police Citizens Youth Club, when they had a boxing club there, and I’ve seen a lot of these activities with young kids, and that’s essentially the basis and structure for the PCYC is to give kids some outlet and a club to go to, somewhere to go. The – the program had already commenced prior to my – me starting at Don Dale and the young man who was engaging that program, you know, his behaviour


5

10

15

20

25

30

35

40

45

and conduct within the centre, I’d have to say, was exemplary. He – he was the young boy – he wasn’t a boy, he was a young man, that I was referring to who we invested that time in with the employment opportunities and also the – ensuring that he had his provisional licence when he left the centre. He, you know, he was exercising a lot. He was managing his food. I had – I’d made arrangements through our store lady for him to be able to prepare his lunch each morning for work, but he also opened an account at a local store that was very close to his work site where he was allowed to buy some morning tea with the other workers to put him, like, a real life situation.

MR CALLAGHAN: I’ll just get you to pause there if you don’t mind because we do have some evidence about the program itself and we understand - - -?---So - - -

And you’re not being challenged about .....?---No. Do I think the program was good? Look, I thought it was good but whether it was appropriate or not, I’ll leave it to other people to make that decision on. But that particular detainee he’d done a lot of goal setting. His behaviour was exemplary. He took a lot of self – pride in himself. A lot of the other boys in the centre at that time were looking up to him. He was one of the older boys, you know, he’s 17 years of age. I know he was extremely disappointed when the program was cancelled. We didn’t however cancel any of the other activities we were doing with him and I – when he was, you know, discharged, I know he was very disappointed when that program was cancelled, it was a weekend that he was actually discharged, that he was released from our care and I made the trip to go and sit down and have a conversation with him before he was released and just had that general conversation about his future and what he wants to do with his life. So yeah, look, it was a good program but as I said, I think that’s for other people to decide whether or not it was entirely appropriate for a youth justice space.

Other people did decide it and it was closed down?---Okay.

Were there any other examples of initiatives like that being foreclosed by management, or any other examples that you can think of, of you trying to initiate something but meeting resistance from management?---No. I didn’t. All the other programs and activities that we were able to undertake were very supported by the senior management group. There was another initiative that I did want to undertake but within my resources, and that was going to be a community reparation activity, but within the resources of the centre it unfortunately just wasn’t viable. We did set up some initial meetings to see if there was some space for us to do some stuff with the Salvation Army, in relation to helping with their food carts, but obviously that would have been under close supervision, however unfortunately that didn’t go much further. We just weren’t resourced to do it and I never put that up through the senior management stream.

COMMISSIONER WHITE: When you talk about resource to do it, you’re really talking about extra staff?---I don’t have the staff to do it.


5

10

15

20

25

30

35

40

45

There was no other funding issue involved, surely?---No, I just didn’t have the staff to do it, simple as that. But I need to be clear, these activities weren’t on my staffing model. I was staffed for X amount of people a day within the centre. I didn’t have an additional one for this, an additional one for these activities. They just – they just weren’t there, so - - -

MR CALLAGHAN: In terms of other things that you were trying to do, can I ask you about an attempt you might have made to get a through-care model for some of the detainees and, if it helps, the interview that we were looking at before at pages 64 to 65 contains an exchange relating to that, if you want to refresh your memory or just tell us about it, whichever is easiest?---Yeah, I do remember this particular case and I do recall the – the engagement we tried to undertake to put a – what you’d consider to be a through-care model in place. I do recall, yes.

What I was going to ask you about this particular example was your – about your efforts to communicate with or liaise with DCF. I mean, you put it rather colourfully at line 43. We don’t need to - - -?---Right.

- - - dwell on that, but you – in terms of communications with DCF at one stage, you said well you may as well talk to this cup, presumably referring to a cup that was on the table at the time you were being interviewed?---That’s correct I made that statement, yes.

And was that, or was that indicative of the sorts of dealings that you had with DCF generally?---I didn’t – I didn’t find the service very helpful a lot of the time. I don’t feel that they were very engaging.

Can you elaborate on that?---It’s – it was probably just the sense that – you know, that we may be putting a high level of work into engaging with someone or trying to assist someone, and there just didn’t seem to be the same amount of receptive – reception on the other side. It was very nonchalant. We’re going to tick the box, this is what we’re doing, and that was it. Regardless of what plan and what we tried to put in place, it wasn’t going to change their particular model and I don’t – and I do understand that they may have their own resource issues or they may have their own boundaries, but when you’re looking at a continuity of services staff that come into our custody, through to the time they are in their care there are so many examples, I feel, that, you know, a real through-care model that has been thought through properly and engaged with would have been so beneficial to a number of the detainees who I’ve dealt with over the time. And I just – as I said, when I make comments like that, you probably see the frustration that I was venting, I guess, at the time.

That’s all I was going to get to really. I mean, this is one specific example, but you’ve already suggested there were others enough to engender in you this sense of frustration?---Yes, I was very frustrated with a number of other services that I felt should have been doing more, or could have been doing more in relation to some of the – some things that we were going through.


5

10

15

20

25

30

35

40

45

Can I ask whether that, on that particular subject, of that frustration that you felt with DCF, did you make others such as Mr Middlebrook aware of those frustrations that you were feeling?---No, I certainly – I certainly made my general manager aware of a number of the frustrations and I believe in a lot of cases I obviously worked quite closely with Mr Caldwell and I believe we shared a lot of those frustrations ourselves but that’s a discussion for him.

Right. So you raised them with him and discussed them with him?---I – you know, through the – through the – that’s generally how it worked. As the assistant general manager, I reported directly to the general manager. So I wouldn’t – obviously I would have a lot of contact as well with the Executive Director and on occasion I spoke with Mr Middlebrook but generally through my background I followed the chain of command so I’ll go through Mr Caldwell and I let him put them up through the chain.

COMMISSIONER WHITE: What opportunities – you said occasionally you’d speak to Ms Cohen and Mr Middlebrook, what opportunities did you have, in fact, to, as it were, go around the chain of command. Did they come and visit the centre from time-to-time as Executive Director and Commissioner?---Ms Cohen, I had a lot of contact with Ms Cohen. She would regularly come into the centre and have discussions with me and meet with the management group. So quite often – quite often it wouldn’t be an issue that I would go around my general manager or anything in that particular course. She would sit down and speak with both of us in relation to things we were doing within the centre and in relation to issues, problems. It wouldn’t be uncommon that if an issue arose that we would have a phone link-up with Ms Cohen to discuss maybe some problems that we had within the centre. She was very receptive when we – we would pick up the phone she would generally answer. It wouldn’t be a problem. She made time for us, so yeah. In those cases I need to qualify too, that she would take through to the Commissioner. As I say, I’ve known Mr Middlebrook for an extended period of time. I would speak to him if I saw him. Quite often if we had dignitaries or guests or something coming through the centre, I would talk to him but I wouldn’t go directly to him with issues, that’s not how it worked.

COMMISSIONER WHITE: But I was thinking of more informal chats that sometimes occur on occasion that you’ve just mentioned when they come for visits with other people?---Yes, they do happen. We do have conversations. I mean, that’s the – that was the informal chat that I was having with the Minister in relation to the SEED program when he was coming through the centre and we were talking about some of the activities we were doing. There was going to be a – you know, a watered down version of the centres to a job initiative ..... adult environment, that’s – that’s what the initial conversation we had with that. It was, again – but I’m very observant not to overstep my boundaries in these places too.

MR CALLAGHAN: Well, on the topic of boundaries that leads me to ask, or to raise with you the impression that Mr Kelleher had, was that Mr Caldwell was palming off 98 per cent of his work, I think he said, on to you, and that you were, in


5

10

15

20

25

30

35

40

45

effect, doing the jobs of more than one person. That was at least the perception on the floor, it would seem, or at least from him?---I – I can’t – I can’t take away from the fact that I was extremely busy in this job from the onset. I worked incredibly long hours. I worked very close with Russell but I found Russell to be a very supportive superintendent, so I can’t – I probably brought a lot of experience in relation to change that I – that I guess I – I attempted to initiate that was probably quite difficult in some areas with some of the – I think we said before, some of the long-term systemic issues, but no, I found Russell to be a very supporting superintendent and we both, in my opinion, worked very hard.

Well, do you feel in hindsight that you were doing work that was beyond the scope of your job description?---I don’t believe I was doing work beyond the scope of my job description. I was probably doing more work than one person should do. I think it’s probably a – a way to sum it up: there could have been two people in my role and to share out the duties and the magnitude of the work that I was undertaking but I don’t believe that I was stepping beyond my delegation or boundaries, no.

And indeed, in terms of the way you were performing your role, the impression is that you were spending a lot of time on the floor itself?---I attempted to. I attempted to undertake a number of activities that was engaging with staff, obviously there’s some things that I’ve put in my statement that indicate that I – I made the point of overseeing the case management panel and we would actually meet with every detainee in the centre. That’s an excellent – that’s just from my previous custodial experience, an excellent way to get to know people, and engage yourself in the case management of that particular high risk group. I did try very much to get on the floor and be as engaging as possible. But, unfortunately, my role also restricted me to a lot of office work and on-call work as well. And I, you know, sometimes you spent more times in the office than you like if you’re reviewing and reading reports. Sometimes you know, you had those moments where you spend a bit of time on the floor and engage with people. It was a very, very dynamic role, I thought.

Well, just to get some sense of it, in the interview that we’ve looked at page 7 lines 10 to 15, you’ve indicated that almost daily you would have contact with all the kids. Would that - - -?---Well, I wouldn’t say all the kids but I certainly had contact with the kids on a daily basis, yes. I would agree with that.

And that means, obviously, being out and around the yards and the cells and so on?---Yes, I regularly made a point of – of getting out on the floor - - -

Which - - -?--- - - - and just engaging where I could.

Which leads me to ask you about the by now notorious incident in which Mr Zamolo recorded a child doing something, eating something apparently disgusting?---Mmm.

You’re well aware of the incident that I’m talking about?---I’m aware of the – I’m now aware of it, yes.


5

10

15

20

25

30

35

40

45

Yes. And the information is that this occurred on 3 April 2014, which was on your watch, to speak?---Mmm.

Mr Zamolo says – and it would seem irresistible that there were other Youth Justice Officers present when he filmed that event taking place. You’d accept that?---I wasn’t there but if that’s – if that’s what he’s stated, then, you know, I won’t refute it.

Well, you’ve no reason to doubt his honesty?---Well, no, I’ve no reason to doubt the statement, no.

Or his honesty generally?---No. No.

Because he also went on to say that there was a practice of guards having and using their phones whilst on duty?---Mmm.

This was not something of which you were aware?---No. There were – guards would, which I – to be completely frank I was a little bit horrified about, there was no checks and balances at the entry point of Don Dale so there was no secure entry, so to speak. There seemed to be no procedure in place for – for what people were or weren’t supposed to do, but it was agreed that there were a number of lockers at the entrance of the centre that was actually inside the centre. There was like a staff room and a number of lockers and staff would leave their mobile phones, personal items, their bags, their lunch in this particular staff room. Generally in a correctional facility there would be some sort of infrastructure that’s actually off the main building, for example, like a locker room out the – right off the main area where staff would frequently use. We didn’t have that facility in Don Dale. So staff would take their phones into the staff break room and quite often on their breaks they’d check them in there. To answer this a little bit further there were two issues reported to me of staff having their phones on them whilst they were at work. And I dealt with both of those issues. They were the only two reports that actually came to me during my period in Don Dale.

COMMISSIONER GOODA: How would you, you know – like, in the detention centre, how would you, like, you can’t search guards I suppose, but how would you make sure they’re not taking things in? We’ve read about - - -?---Just - - -

- - - guards smoking cigarettes on-site?---Yes.

How would you do that as a superintendent?---In a normal correctional environment there’s a number of checks and balances you have to get through to get into the centre. There’s metal detectors, for example, the carry clear bags, you know, and now tobacco obviously being an authorised item in correctional centres, you know, people can’t bring in tobacco either. Unfortunately, it was a very, very difficult situation, youth justice, it was near impossible. On one occasion – one of these occasions that I did confront a Youth Justice Officer, someone reported to me they could literally see the phone in their pocket. On the next shift I had a conversation


5

10

15

20

25

30

35

40

45

with that particular officer who flat denied bringing the phone into the centre and it was very difficult for me to prove.

You would really on say .....?---I’d rely on it either being reported to me, which on two occasions it was, or I rely on the honesty of staff reporting it or adhering to the rules within the centre, which, unfortunately, you know, in the case of Mr Zamolo wasn’t the case.

And just going to the culture, would people – would guards generally do that? Would they say, well, so-and-so is in here with a mobile phone?---The seniors and shift supervisor certainly should or would. Unfortunately, historically, I did have some issue was a few of those staff members who were not adhering to instructions that had been given. I don’t know if it was a casual approach to – towards the correctional side of things in relation to what you can and can’t brick into an institution and I don’t know if that falls into that conversation that I had earlier about some of the systemic issues that I think were in Don Dale but there seemed to be a laxed approach towards – towards a correctional centre environment in relation to what can and can’t come in. Having said that, though, I did see – I used to see a lot of staff members checking their phones in the break room which was close to my office which told me a lot of staff were adhering to the rules, they would come up and check it in the breaks and put them back in the lockers which was the agreed practice.

Thank you.

COMMISSIONER WHITE: When you say, Mr Sizeland, that it was pretty relaxed about rules, could this not have been remedied once you perceived that there was a rather laid-back approach, in terms of security, contraband and so on, which you were used to from your - - -?---Yes.

- - - experience in adult corrections. Did you raise that with Mr Caldwell, and say, “You need to tighten these things up, this is just not acceptable”?---I believe we both did. We both attempted to. And that – and when we departed Don Dale for the CBU, that was actually a very good opportunity for us to tighten the process of what can come in and cannot come into the centre because an appropriate screening point for staff, to - - -

You can put the lockers outside the entrance, rather than within their lunch room?---The lockers at the CBU, unfortunately that space, the staff didn’t have lockers. They were to – it was for a period of time they were using their vehicles, they weren’t bringing their phones to work, but they had to go - - -

That’s not unusual in some workplaces where there’s security issues, though, is it?---Yes. In some workplaces. We would – there was a proper screening device with a metal detector, you had to walk through a metal detector, you would put your bags through a screen device that’s very similar to an airport screening device. So it was – so it – essentially, it forced the issue and that’s very consistent with all modern


5

10

15

20

25

30

35

40

45

correctional centres to have this particular screening point and unauthorised items can come through.

What – unless you’re going to be asking this line of questions, Mr Callaghan, what effect, in your mind, did the disregard of the rules by certain of the Youth Justice Officers have upon the young people who are in your care, where the rules were required to be observed very much exactly?---Yes, I think - - -

And they would be punished for swearing or for breaching quite minor rules. So how do you think that played out in helping the discipline in the centre?---I – I think it was quite problematic in my mind, and in my view. I’d had – I’d spent quite a fair bit of time engaging with quite a few detainees who were continually having issues, for lack of better words, with a number of staff, and – and they – they would raise issues with me, saying, well, you know, you know, so-and-so said this to me so I said this back, and then you’d take it to – take it to the officer and have that discussion with him and they’d engage with you and they’d say they stayed within the parameter of the rulings. I wasn’t happy with the discipline in Don Dale, and I think what you’re saying is a pertinent point. It was problematic.

If I might observe, one thing that all children seem to share in common is a great sense of unfairness. They seem to recognise it before most grown-up people do, and to them this would be unfair, wouldn’t it, that they were punished for breaches and guards apparently not?---I think – I think that would be a – that would be a fair statement to say, that I think the children would have a – would have a mindset of things being unfair in certain times, you know.

Thanks. Thank you, Mr Callaghan.

MR CALLAGHAN: I suppose just to close off on this issue, we’re aware now that Mr Zamolo did make this recording, publicly, and that a number of other people were present, both Youth Justice Officers and detainees. And yet if we accept what you say, no one mentioned anything about it to you?---It never came to me in any form through a – either a detainee or through an officer.

And indeed it was done so publicly it was – it was apparently posted on Snapchat but still no word of it filtered back to you in any form?---I heard rumours about the Children’s Commissioner investigating it once I left Don Dale.

No, I’m only talking about the time - - -?---No.

- - - when you were there and you were in charge?---Yep.

And your evidence is that you had no knowledge of it at all and the question is what explanation do you have for the fact that neither Youth Justice Officer nor detainee chose to report that incident to you?---I’m sorry, I don’t have any excuse at all for that. I was not aware of it and I certainly would have acted on it if I was aware of it.


5

10

15

20

25

30

35

40

45

In hindsight, what does it tell you about the culture of the place while you were there?---Unfortunately, for the period of time that you’re – you’re at work and you’re on the floor and you’re engaging, yeah, but the reality is that you’re not there 24 hours a day, you know. You’re not there – there were a number of issues that I did deal with when things were reported to me that occurred after-hours but you only know what you know. And if you’re not there and no one’s reporting it to you, you couldn’t – you couldn’t – you couldn’t – you can’t – can’t deal with these issues.

I suppose the question’s more directed towards what was there that could have made it difficult to report that to you?---I’ve no idea. I’ve no idea. I – to be completely frank, I’m surprised one of the detainees didn’t raise it as a – some sort of formal complaint if this activity was occurring in the centre - - -

Well, that might lead us to - - -

MR O’MAHONEY: Let him finish the answer.

THE WITNESS: I can’t – I can’t answer it. I’m sorry, I wasn’t there. That’s in a sense that - - -

MR CALLAGHAN: It’s alright, you can’t answer it.

COMMISSIONER WHITE: Are you going to a different topic.

MR CALLAGHAN: Yes, Commissioner.

COMMISSIONER WHITE: Would this be a convenient time to break.

MR CALLAGHAN: Actually, I might – sorry, not quite a different topic, there’s one last question on this topic, then it would be convenient. I’m going to show you a document which records something that was said by a detainee to DCF – to a DCF worker. It’s tender bundle tab 253, so that’s exhibit 64.253, and can I - - -

COMMISSIONER WHITE: Do you want to tender that?

MR CALLAGHAN: It’s already tendered, I believe. Yes, I’ll tender that.

EXHIBIT #64.253 TENDER BUNDLE TAB 253

MR CALLAGHAN: And in particular to the paragraph on page 8, just coming up from the bottom, the paragraph beginning:

YP disclosed –


5

10

15

20

25

30

35

40

45

and following. Do you see that? Can I just ask you to read just that paragraph?---This – which paragraph we’re in, just the whole thing?

You see the paragraph beginning with the words:

YP disclosed

?---Yep.

Just through to the words:

Show us all.

?---Okay.

I suggest to you that the effect of what was being reported there was that a detainee did have concerns about being recorded by Mr Zamolo, that he spoke to you about it and you put a stop to it, in effect, giving you credit - - -?---Yeah, okay.

- - - for doing that. Does that passage have any meaning to you?---No, I’m sorry, it doesn’t.

Alright. That was the note that I was going to finish off on that top Commissioner.

COMMISSIONER WHITE: Thank you. We’ll take a break for 20 minutes. Thank you, ladies and gentlemen.

ADJOURNED [11.35 am]

RESUMED [12.03 pm]

COMMISSIONER WHITE: Mr Callaghan.

MR CALLAGHAN: Before I go on, Mr Sizeland, you did another interview with the Children’s Commissioner in 2014, that’s in supplementary tender bundle 223 – and before I go on, I’ll tender that.

COMMISSIONER WHITE: Exhibit 64.223.

MR CALLAGHAN: No, I’m sorry, Commissioner, that’s in the supplementary tender bundle. It will need a separate number.

COMMISSIONER WHITE: I see. Of course, you’re right and I’m getting vague.


5

10

15

20

25

30

35

40

45

EXHIBIT #175 SUPPLEMENTARY TENDER BUNDLE 223

MR CALLAGHAN: Mr Sizeland, I’m going to move on to ask you some questions about the BMU. I can take you to different things that you’ve said about it, but in essence you didn’t like it any more than anyone else. Is that a fair summary? You thought it was a horrible place?---That’s correct.

Not a suitable environment for children?---That’s – it wasn’t a suitable environment, period.

I just want to clarify the purposes for which it was used. In some cases it was used to manage security?---Yes.

But also to manage behaviour; is that correct?---That’s – that’s correct, yes.

And Mr De Souza, at least, in the transcript 1649, suggested that in 2014 cell placements were constantly being used to manage behaviour. Would you agree with that?---I wouldn’t agree with that, no.

Whether or not it was a change under your – during your term, we’ll leave to the side for a moment, but in order to be effective in terms of changing behaviour, or the effectiveness of a BMU placement, must have depended, mustn’t it, entirely upon the detainee’s own mental processes. That is to say, they would have had to have been able to work out why they were there, what they’d done wrong, what they had to do to get out. They had to be able to think that through for it to be effective as a behaviour management tool; you’d agree with that?---I wouldn’t 100 per cent agree with that, but - - -

Tell me where you disagree with that?---For a detainee to understand why he’s there, for a detainee to understand what he has to do to get out, you know, in certain instances, I think, you know, you could say that we’ve released people for under, you know, who are sitting on a 24 hour placement for whatever reason, who may not have accepted that they’ve actually done something wrong, who may still be acting out and engage quite badly with staff, and I don’t – I don’t think a lot of the times in this particular – in a number of scenarios that it was managed very well either way in relation to – in relation to sometimes why people were put in there. The decisions were made to put people there and I don’t think it was managed well in relation to people accepting some sort of responsibility or the detainees accepting responsibility that they had actually committed some sort of a breach or done something wrong, whether it be, you know, on the scale of very serious or – or less so. It was – I don’t think it was suitably or ideally put together and/or managed.

COMMISSIONER WHITE: Alright. Well, I understand that answer. I don’t think it’s a truly responsive answer to Mr Callaghan’s questions. I wonder, Mr Callaghan, if you would be inclined to step through each of those criteria that might make it a


5

10

15

20

25

30

35

40

45

useful management tool that you mentioned to Mr Sizeland and see which ones he won’t accept or would prefer to posit some others.

MR CALLAGHAN: And I’m asking you, Mr Sizeland about its effectiveness, not about whether you think someone actually did recognise something they’d done that was wrong. But for this technique of placing a child in the BMU to be effective in managing behaviour, the child would first of all have to understand clearly why they were there?---I accept that. I agree with that, yes.

They would also have to understand what they had to do to get out?---That’s – that’s not necessarily true, no.

Well, why not?---Well, you know, in a number of cases, you know, it was – there was essentially a time period or not where a detainee just automatically came out.

Well then it was completely meaningless, wasn’t it, as an effective tool for managing behaviour if they’re going to get out at a specific time whether they had any insight into what they’d done wrong, it was an utter waste of time?---I would actually agree that in a number of cases it was actually a waste of time.

It was, on one view at least, just an act of cruelty, then, wasn’t it, to place these children into a situation where they were going to learn nothing from it, if it was a complete waste of time but they were being subjected to these conditions which everybody agrees were horrible?---I wouldn’t say it was an act of cruelty but it was certainly - - -

What word would you use?---I’d say it was a – I’m not sure I have a word to describe it, to be completely honest. I wouldn’t use the word “cruelty”.

COMMISSIONER WHITE: Would you use the word “punishment”?---Well, I had a different view on what they were actually – on what the BMU was being used for. I never agreed that it should have been used as a punishment per se. That’s not what I was used to in the environment that I came from. I believe it should only have been used as a – as a security holding area where the – the good order and/or jeopardy of the centre was placed in serious risk from - - -

But that’s the definition in the legislation?---That’s – it’s close to it, yeah.

Yes?---I think – I don’t – I didn’t approve of it being used as – as punishment per se. It really should only be when there’s a risk to centre security, to staff or other detainees that it should be used. That was my – my belief on it and the – unfortunately, the – the infrastructure – you know, I mean, the word “cruelty”, the infrastructure was terrible, it was completely inappropriate. Unfortunately, in that particular case there was nowhere else to use as a security cell.

MR CALLAGHAN: But if children were being let out without acknowledging what they’d done wrong, there was absolutely no effect on the centre’s security achieved


5

10

15

20

25

30

35

40

45

by their placement at all, was there?---I think it’s – that’s – on a case-by-case basis that’s probably quite a difficult one to answer. I think some detainees would readily accept that they’d, for lack of better words, messed up or there was an issue.

Yes. But .....?---Some – some - - -

MR O’MAHONEY: If he can be allowed to answer the question, please.

THE WITNESS: Some - - -

MR CALLAGHAN: Well, if he can answer the questions he’s asked, it will go a lot quicker.

MR O’MAHONEY: Well, if the questions were asked in a civil tone they might be more readily understandable.

MR CALLAGHAN: I’m sorry.

COMMISSIONER WHITE: Mr O’Mahoney, Mr Callaghan, come on.

MR CALLAGHAN: I’ll keep it civil, Mr Sizeland. I’m sorry if I’ve upset you?---No, you haven’t upset me at all.

No. I didn’t think I had?---No.

Let’s move on to the August 2014 placements. The lead-up to the incident on 21 August was preceded by the fact that children had been in the BMU for days on end and they hadn’t been told when they were going to get let out; that’s correct?---That is correct, yes.

You, in fact, have said – and I can take you to it if you like – but you were angling to your senior people to move them out?---I had put a submission through the superintendent that went to the Commissioner to – early in August to have all boys moved out of the BMU area.

Was that a written submission?---Yes, that’s – that submission went in writing to the Commissioner, yes.

Thank you. Did you have also a specific suggestion as to where they should go?---Yes, I did put up a specific suggestion.

Just tell us where that was?---I put up a suggestion that they should be accommodated in one of the decanter blocks in Darwin Correctional Centre. I specifically chose a particular area that would have a degree of isolation, obviously, from adult prisoners, that I knew – I knew the layout very well. They would have a large exercise yard. They would have access to fans and TVs in their cells. They would have – let me finish please – they would have ablutions and showers and wash


5

10

15

20

25

30

35

40

45

basins in their cells. They’d have natural light and given the high risk nature of what was occurring with this group I thought it would have been the best solution to manage them within that environment and it would have addressed all issues. I further proposed that we negotiated with the Department of Education to be able to deliver classes up there and I put that in my submission as well. And I would have put Youth Justice Officers – what I submitted to the superintendent was that we put Youth Justice Officers around the clock to work with these detainees to ensure that they had full access to a regular day and a regular routine.

And all of that was in your written submission?---Yes.

COMMISSIONER WHITE: Would you have thought, given the difficult behaviours that you were attempting to manage with this group of detainees, that it might have been necessary to hand pick the Youth Justice Officers who’d had better training and more experience?---In that – it’s – I think it’s interesting to note that I think it’s not necessarily better training, better experience. It’s who, (a), wants to work there, that’s one of the issues we had sometimes with trying to get staff to work in areas, and who would probably be most effective in relation to engaging with the boys. Who’s – who – you know, it’s sometimes – some people tend to get along with others better, some people have a better relationship with some particular detainees.

Perhaps you could – yes, I accept that?---We would have – having said that, with the staffing model literally it might have come down to who was available, who we could get to work there.

Perhaps in my question I was really suggesting that you might handpick the staff who would be the best fit for the job and I rolled it up with training and experience hoping that that might cover it but I understand your answer, thank you---Yes, I think it would have been whomever was available to cover the shifts and make sure we could have it manned at that point in time.

Not exactly consistent with the idea that you apparently had, though?---Sorry?

Having the best – just taking the staff that you could get?---That’s – ideally you’d find the most suitable people to work there but the reality is it’s who’s available on the roster, who’s prepared to do the shifts, who we can and can’t get, you know, that’s the reality of running a very small centre with a very limited staffing number.

Why is the reality so far away from what you call the ideal?---To be completely frank I think – I think that’s – that falls into – in my opinion, falls into what’s been allocated as what we would think is an agreed staffing number. What – what we would think at that particular time an appropriate level of staff to run a centre would be in comparison to what it should be. And, of course, in this base here, which comes back to the earlier conversation, it also comes back to what was deemed appropriate infrastructure at the time too. It’s certainly clear to everyone that certainly is not and was not. I think ideally what we should have had was obviously


5

10

15

20

25

30

35

40

45

a much more robust staffing model with, you know, in an ideal world with full-time trained staff who’d undergone the appropriate training to work in appropriate centre. That’s obviously your ideal world and it was far from it. So when I say sometimes that we – you know, we had to, you know, make concessions with the staffing model to try and make things fit and make things work, these are activities were outside of our allocated staffing group and it was quite difficult to – to honestly man. It wasn’t quite as straightforward as we might think.

Can I just ask, I know I’ve interrupted you a long time, Mr Callaghan, was this a decision, as far as you’re able to say and I know that you’re of course not at the senior executive level for these decisions but if you can say, was it a decision solely budgetary or was it something for philosophical that really you don’t need anything better than what you’ve got?---I think – to be completely frank, I think it was a bit of column A and a bit of column B. That – I got the sense that – that the – the entire youth justice space had been neglected for a long time and it’s also – but to invest in that area there’s a - - -

Low priority?---There’s a big cost attached to it. Well, you know, politely, I worked – respectfully, I worked on the commissioning of the new Darwin Correctional Centre which would have to be one of the most advanced correctional centres in Australia and I was learning about the systems and the capabilities of the centre and what it was actually geared for in relation to industries, vocational training, educational programs as functional as it was, and some of the numbers there are bigger than any other institution in Australia. So I’ve gone from that particular team and working on that particular site and that footprint and being involved in the operation of that, to stepping into – stepping into a place where we didn’t even have – you know, you can’t even begin to explain some of the failures of the centre, you know, and there was – it’s quite a – it was quite a shock and quite a surprise when I first started working there as to how – I won’t use the word “neglected” but how – how far behind it was and, you know, we talk about some of the staffing issues in relation to – in relation to currency with operational orders and it wasn’t – it was only just before I started the staff actually received some sort of a uniform. Prior to that they just wore casual clothes to work. That’s – that was the space that youth justice was in. It was – it was miles behind anything that I’d worked in before. So I hope that explains a little bit.

Thank you. Mr Callaghan.

MR CALLAGHAN: Can we go back to those who were detained in the BMU for a lengthy period prior to 21 August. The problem, or the unfortunate nature of that situation was obvious to you at the outset, I take it?---Yes.

And only became increasingly obvious as time went by, I would suggest?---I think it would be a fair thing to say that I felt an extraordinary amount of pressure during that time with those boys being secured.


5

10

15

20

25

30

35

40

45

Under that pressure, what did you do to reduce the stress for those detainees?---On a day-to-day basis, probably not a lot.

The way in which it might have been done would have been to adjust their IMP, would that be a fair observation?---Would have been, but it would have depended on what we were looking to adjust.

And I’d suggest that there was the opportunity to adjust and that this issue was drawn to your attention, at least on 15 August – and I’ll show you a document from tender bundle tab 181. And I’ll tender that at the outset.

EXHIBIT #64.181 TENDER BUNDLE TAB 181

There’s a case note from a case worker at Don Dale dated 15 August 2014. I’d ask you to read that?---Yep.

Can I get 15 August – sorry, it’s 11th, I’m sorry. That’s my mistake. It’s the 11th?---Okay. I’ve read that.

Read it?---Yes.

Do you accept that as accurate?---No, I don’t.

Tell us where you don’t?---Well, I – I – that’s not something that I would say.

COMMISSIONER WHITE: Part of that is something that you wouldn’t say, Mr Sizeland?---AGM Sizeland, did not answer the questions, I just say that these boys will get high security regimes. These boys, hang on, it’s changed, I’m sorry. The part where I’ve said they only come out for showers and phone calls, that’s just not an accurate thing I would say. And I’m not sure the context the conversation was with Greg in relation to this, so I’m – yeah.

Well, the second part, on the second page it talks about the physical context in which?---Okay ......

The conversation took place, I think, Mr Sizeland?---In a hallway, okay. So this is - - -

MR O’MAHONEY: Commissioner, it might assist, and it might be for reasons that are not clear, that this can’t be publicly revealed but maybe privately the witness could have indicated to him who it was that wrote the case note. It might assist with some context given what he just said.

MR CALLAGHAN: I’m told – and there’s no reason why it can’t be made public – that the note was written by Mr Bill Rogers?---This one here?


5

10

15

20

25

30

35

40

45

Yes?---I thought it was Mr Donald.

Well, you see the writer and – it refers to the writer and Mr Donald?---Myself and – well, look, I have had a conversation – I did have a conversation – a passing conversation with Mr Donald in relation to this. There was – and I’ve sort of had to stretch my memory a little bit on that one, it was a very passing conversation in the hallway. I actually don’t recall Mr Rogers being there, period, and further to this, I think that – I think that it would have been much better suited at the case worker’s schedule, a meeting with the general manager, and have the meeting minuted in relation to their concerns and in relation to a way forward. I don’t think a passing conversation in the hallway, to myself, in relation to these issues and then to – to make an extensive case note about the fact that they talked to me in the hallway in relation to these boys and their current situation, I’m sorry, I don’t – I’m – to be completely frank, I’m not 100 per cent accepting – accepting that – you know, I do remember talking to Greg, and – and, at that particular time, I had actually been advocating to Russell to get the – to find an alternative arrangement for those boys, yeah, so I’m not sure what else I can say in relation to that, sorry.

Alright. I understand. Can I take you to some IMPs dated 21 August. These are in tender bundle tab 184 and I’ll tender them.

EXHIBIT #64.184 IMPS IN TENDER BUNDLE 184 DATED 21/08

MR CALLAGHAN: These are all documents signed by you on 21 August 2014. The management regime for boys in the BMU, would you accept that?---Without seeing all of them, yeah, I’ll say yes.

Alright. Well, I’m only going to take you to two of them?---Okay.

If your counsel wishes to take you to others, they may do so?---Mmm.

But can I, for example, take you to page 4 on the first one. And you see there’s a series of six bullet points a little lower than halfway down the page, the last of which reads:

Destruction of.

?---Yeah.

And I’d suggest to you it’s clearly meant to be destruction of property but as you can see, in fact, what’s happened is that the child’s name has been inserted to overwrite the word “property”?---Okay. Alright. Sorry. I hadn’t realised.

And I’d suggest to you that that same error is replicated in each of the other documents, that is to say that the child’s name has been inserted into the field and


5

10

15

20

25

30

35

40

45

somehow it – it reads like that. Perhaps to be clear, I’ll take you to the next document, that’s on page 4 of that one, you see that same thing? And I shouldn’t have suggested that it was the case in all of the documents, but in at least one other I’d suggest that same error has occurred. What it’s suggesting, Mr Sizeland, is, to use a phrase adopted by Mr – or suggested by Mr Kelleher, that these documents were cut and paste jobs. Your response to that?---I wouldn’t say they were cut and paste jobs. They were just a Word document that was typed up. That’s all they were.

But I’d suggest to you that no individual attention was given to them, that they’re all, in effect, uniform?---They’re all very much the same, yes.

And that there’s no evidence in them of anybody turning their mind to the specific situation of any given individual?---I’d have to agree to that, yes.

And indeed, in the 2014 interview at page 43 you acknowledged, I’d suggest, that there might have even been a child in the BMU with no IMP at all?---Could you show me where that line was?

I can show you. It’s page 43. This is what is being put to you at that point in the interview, you - - -?---Okay.

- - - acknowledged that if you’d missed that it would be a pretty big miss, but you don’t recall it?---I don’t recall missing them, no, so – but I’d say that, I guess, I wouldn’t say that’s an omission.

Yes?---But I would say that I certainly accepted responsibility for the fact that I’ve done the plans.

Alright. I’ll just ask you some other questions about some other records. Not long after you started at Don Dale the PSU conducted an audit on the use of force register; do you recall that?---No, I don’t.

Alright. Can I get tender bundle tab 166, please. And you see the findings there record that at the time of the audit – sorry, I’ll just get that paragraph on the screen – you see there now, second paragraph from the top. At the time of the audit – you can read that for yourself?---Is that the second – the second paragraph?

Yes, the paragraph beginning:

At the time of the audit 26 March 2014.

?---Yes.

Do you accept that – well, does that refresh your memory?---That I had done this audit?


5

10

15

20

25

30

35

40

45

Well, it’s an audit that took place early in your tenure at Don Dale. And you recall I asked you some questions about the state of the record keeping that you inherited. This is an aspect of it, I’d suggest to you?---Yes, look, I wasn’t aware this audit was conducted and I need to be clear that I’ve only seen this audit, it had been conducted very recently.

So nobody told you about the fact that this audit had disclosed these deficiencies in March of 2014?---No one had told me the fact that there was deficiencies in March 2014, no. I do not recall seeing this previously.

Excuse me for a moment.

COMMISSIONER WHITE: Were you ever the delegated officer to sign off on - - -?---No, that was – my understanding that was actually delegated down to the shift supervisor of each shift, which would be comparable to a – as I said earlier, a chief correctional officer which would be a very standard role to be signed off on. That to me is that particular function.

MR CALLAGHAN: Well, just on that, can we go to the last page of the document that’s on the screen. Can we see in the columns there, there’s a finding that required that shift supervisors and Youth Justice Officers were to be reminded of responsibilities, and you’re nominated as the person responsible?---Okay.

Are you telling us that nobody ever communicated that responsibility to you?---Well, I’m telling you that I don’t recall this. So I – you know, if this has been brought to my attention previously, you know, great, but I – to be completely frank with you, I don’t recall this document and I don’t recall this issue, so no.

Well, indeed, there might be some support for what you say in that. If I can take you to another – a use of force register, and this one has to be identified the long way, it’s DDY.0002.0001.2804. This is a use of force register that you’ve signed off on at page 2840. That’s correct; is that right?---That looks like my signature.

Okay. I’ll tender this.

COMMISSIONER WHITE: That’s not in the – that’s not in any tender bundle, is it, Mr - - -

MR CALLAGHAN: No, I think that’s why I had to identify it the long way.

COMMISSIONER WHITE: Yes. Thank you.

EXHIBIT #176 USE OF FORCE REGISTER DDY.0002.0001.2804


5

10

15

20

25

30

35

40

45

MR CALLAGHAN: And can I then ask it to be scrolled through but suggest to you that from page 2841 onwards you see where – and we can keep going a few more, perhaps, none of these have been signed off, I’d suggest, until February 2015, or there might be one, but in the overwhelming majority of cases these weren’t signed off as was the one that you identified a moment ago. Would you accept that?---Yes, I do accept that, yes.

And that would be a failing similar to the failings identified in the audit about which you may not have been made aware, would that be right, that is, the failing in the keeping of the use of force register?---Yes. That is a failing.

Which does leave open, I suppose, the question as to why you weren’t

signing off on the use of force register yourself?---As I previously said, generally it was signed off by the shift supervisors as delegate. That was my understanding of those roles and functions.

And nobody told you otherwise?---No.

Okay. Thank you. I’ll – I know others want to ask you questions so I’ll wrap this up as quickly as I can?---Mmm.

Between December 2014 and January 2015 there are a number of other incidents at Holtze, and at Berrimah; is that right?---I – going to specifics, I would – I would say probably yes, but I – I’d need to know what instances you’re referring to.

Alright. 21 December 2014 a number of detainees surrounded a Youth Justice Officer, two attempted to escape, some climbed onto a roof. There was a lockdown?---I – yes. Yes, I think I do.

8 - - -?---That could be a number of instances though. There were a number of very similar instances to that.

Alright. Perhaps I can cut to a summary provided by Ms Cohen in her statement – her statement – statement number 50 at paragraph 168. She talks there of 15 level 1 incidents. Can I suggest to you that about a dozen of those occurred on your watch? Is that your sense of how many of that sort of incident there was – that there were during your tenure at Don Dale?---15?

No, 12?---12?

Is that your sense of it?---No. I thought the number would be much higher than that.

Higher than that?---Yeah.


5

10

15

20

25

30

35

40

45

Okay. And this is happening all the while you were working and your staff were working, I think, as you’ve suggested, disgracefully long hours; is that correct?---I was working exceptionally long hours, yes.

You’ve actually suggested that you were breaching work health and safety issues for the amount of time that people were having to work?---That was requiring work to – that was under direction that I do request staff to work triple shifts to complete reporting requirements through the major incident. That’s what I was referring to in that Children’s Commissioner report, yes.

COMMISSIONER WHITE: When you say triple shifts, could you just give us an indication, were these eight hour shifts then?---They were eight hour shifts. They started the day shift, they’d essentially had done a – on this particular occasion they had done an evening shift as an overtime position because we didn’t have enough staff. A major incident occurred on the evening shift that required staff to attend Royal Darwin Hospital with a detainee, that detainee did not come back until some hour late in the morning and those staff were required to stay back and finish the reports as per the recording requirements of Commissioner’s report 1.1.1 and they didn’t leave until 11 o’clock that morning. I had a robust conversation with the person who instructed me to ensure that occurred but, unfortunately, I had to ask the staff to stay back and do those reports and I was quite concerned about the wellbeing of our staff.

Can you share with us who instructed you to instruct the staff to work - - -?---That was the Professional Standards Unit, Mr Grenfell.

Mr Grenfell?---Yes.

Was that the only occasion that you can now recall where staff were being asked to do triple shifts, in other words, work around the clock?---That’s the only occasion that I can actually recall, but I believe it had happened on more than one occasion, and that was due to some of the high risk nature of the things that were occurring in relation to high risk activities where we might have a detainee who’s required to attend Royal Darwin Hospital because of, as I said, high risk activity. And, essentially, we were required to have, you know, staff man the centre but also staff do that hospital escort and it becomes very intensive on your staff model very quickly. It wouldn’t surprise me if people have crept over that third shift line. On that particular occasion that’s very clear to me that’s what was happening.

You’re thinking that it’s possibly less than five, just that you can recall?---Yes.

Just to three?---Yes.

What about double shifts though, Mr Sizeland?---Very, very common. That’s in accordance with the – with the EBA, that staff can do a double shift. Sometimes it’s on overtime, sometimes it’s on an agreed – an agreed time-off in lieu arrangement where they may request – may request time off at a later date but double shifts in the youth justice space were very, very common.


5

10

15

20

25

30

35

40

45

I know that you’ve made some comment early in your evidence to us about some of the difficulties, of course, with staffing. Did you observe the effect on staff working in a – in a highly difficult situation with some young people with behaviours that were pretty challenging for staff. Did you observe that working 16 hours was – after 16 hours was actually appropriate?---No, it wasn’t. I felt quite strongly that staff – staff were quite fatigued a lot of the time. And I think that – and that’s, you know – unfortunately, that was the nature of – nature of the work especially during the – during some of the crisis issue that is we’re having, staff, as in including myself, were very, very fatigued and that was, unfortunately, you know, I – I do actually commend some of the dedication of some of the staff who would step up on each occasion, and I – you know, and I can say for myself as I tried to – I tried my best not to let people down in that particular respect of turning up and assisting with dealing with the issues, but I would say that people were very fatigued and that’s all I can say on the matter.

With the consequence that their judgment may well be clouded because they are so tired about what is appropriate action in the circumstances?---Yep. I had – I had made recommendations and I’m thinking of a particular period, I’d certainly made very clear recommendations for a recruitment round to – to go ahead. That, at that time, was denied. There were reasons given for that, and I completely agree with what you’ve said. I don’t think it’s appropriate to have staff who may have impaired judgment, who are tired, making decisions on – on critical matters, or just, you know, even engaging with high risk environment. I do have my thoughts, concerns on that. I share the same view.

Thanks, Mr Sizeland.

MR CALLAGHAN: Can I pick up on an answer that you gave. You said you made a case for recruitment. When and in what way?---This was when? Was in 2015, not long after we’d moved into the new Don Dale centre. We’d lost a number of staff through resignations and it was a new staffing model, because it’s a different centre, it’s a larger centre, it was looking more different to – to, obviously, what we’d worked in with Holtze and the old Don Dale. Viewing the numbers and looking at where we were at I made a recommendation to the superintendent. I worked with him very closely as I’ve already stated. That we need to do a recruitment round. He agreed with my assessment and he took it to the Commissioner for approval for us to go through a recruitment process. That recruitment process was denied at the time due to the fact that we had no long gone through a rosters audit with the gentleman from Queensland. I can name him if you like. Mr McNamara. He did an assessment on our rostering, and the Commissioner at the time stated that he wanted to see the results of the rostering audit before he did a recruitment round. Unfortunately though, as everyone knows when you do a recruitment round, there’s a lag from the time that you advertise through to the time that you actually hire people and during that lag we got considerably short staffed and then when these numbers did go through, in relation to what our staffing model was looking like, we did do an immediate recruitment round and I believe that one was overseen by the superintendent, Mr Caldwell.


5

10

15

20

25

30

35

40

45

And that was in 2015?---Yeah, yes. Yes.

Well, that brings me to my conclusion and can I ask you to look at the document which is supplementary tender bundle 230, it’s a memorandum to the Commissioner. Mr Sizeland, there’s a paragraph under the heading Current Situation, it begins:

In consideration of –

and following. Can I just ask you to read that paragraph?---Okay.

And I’m not seeking to engage on the rights and wrongs of it. What I’m asking is whether anyone ever actually called you to account for not adhering to directives?---No.

Did anyone call you to account for not adhering to the Youth Justice Act?---No.

And was it ever explained to you what duties in your job description you might not have been performing adequately?---No.

I tender that document.

EXHIBIT #177 SUPPLEMENTARY TENDER BUNDLE 230 MEMORANDUM TO THE COMMISSIONER

MR CALLAGHAN: That’s all I have for Mr Sizeland.

COMMISSIONER WHITE: Thank you. Has an order been settled with counsel for cross-examination of Mr – well, it looks as though it is.

MR CALLAGHAN: The speed with which Mr Lawrence is out of the blocks is a clue to that question.

COMMISSIONER WHITE: Thank you. It has been settled then. Can I mention before you get under way - - -

MR LAWRENCE: Of course.

COMMISSIONER WHITE: - - - that we are having a closed court session at 2 o’clock. So we’ll need to cut into - - -

MR LAWRENCE: Yes.

COMMISSIONER WHITE: - - - your cross-examination, but get started.

MR LAWRENCE: Okay. Thank you.


5

10

15

20

25

30

35

40

45

<CROSS-EXAMINATION BY MR LAWRENCE [12.53 pm]

MR LAWRENCE: Mr Sizeland, my name’s Lawrence and I appear on behalf of the juvenile known as AD. Hopefully somebody will kindly – many thanks – reveal the identity of that nomenclature?---Thank you. Okay. Yep.

Do you remember him?---Yes. I know him quite well.

You know him quite well?---Mmm.

Now, what I’d like to ask you questions about firstly is about an incident that happened in the new Don Dale on 27 January 2015; do you remember that incident?---I’m – I’ll need to see the reports, I’m sorry, I don’t.

Well, let me refresh your memory. It was a group of detainees at G block had refused to move into the cells and they, in fact, had broken out of their wing and you were phoned up to attend; do you remember it now?---I do recall, yes.

It was a big incident, wasn’t it?---Yes, it was, sir.

There were police there?---No, the police didn’t attend that incident.

They did attend eventually?---They would have attend eventually to assess the damage but they didn’t attend when it was taking place.

The fire brigade were attending at some stage?---I believe the fire brigade were called. Yes, that’s true.

What happened was there was about seven youths broken out of their wing and the situation deteriorated and these youths were armed and they were literally smashing up the place?---That’s incorrect. They hadn’t broken out of their wing. The G block infrastructure, for lack of better words, held. They didn’t get out of the block. They had broken into the officers’ post. They were inside their block. They were armed. And we had the centre in a state of lockdown and we – we were, essentially, you know, coordinated around the G block area but they – they weren’t loose in the centre. That’s actually incorrect, sir.

Alright but some of them did break into the office?---A number of them broke into the offices, that’s correct.

And where is G block, please?---G block’s at the rear of – the rear of Don Dale. It’s one of the old medium security blocks. So one of the old concrete blocks at the back and it’s opposite S block, which is one of the – what we were using at the time as a lower security area.

.ROYAL COMMISSION 27.3.17 P-1900 J. SIZELAND XXN©Commonwealth of Australia MR LAWRENCE

5

10

15

20

25

30

35

40

45

And just for clarity, Don Dale being Don Dale 2, if we can call it that?---Don Dale 2, that’s fine.

The old Berrimah prison?---Okay. Yes.

Now, they were wielding lumps of wood, broom sticks and metal louvres as weapons?---That’s correct.

They were threatening Youth Justice Officers with the same?---Yes, that’s correct.

One Youth Justice Officer was, in fact, assaulted in the groin?---Yes, that’s correct.

Do you remember that?---Yes.

You witnessed it?---I didn’t witness it, but I witnessed the Youth Justice Officer on the ground.

And they were behaving in a very threatening manner?---You could say it was a very, very threatening, yeah, I agree on that. It was.

They were threatening to starve prison officers?---Youth Justice Officers, yes.

And they were swinging those weapons towards those Youth Justice Officers?---They were very threatening with them, yes.

And as you say, three of them, I think it was, broke into the officers’ post and it was a danger at that stage that they would all break out of the whole block armed. That was - - -?---I think - - -

- - - was a potential danger?---I think there was more than three of them that broke into the officers’ post.

Thank you?---And one of them was actually, was in the process of smashing his way out of the window that’s in the officers place, yes.

So it was a potential danger?---It’s a very dangerous situation, yes.

They were saying things like, “Come in and we’ll stab you”?---Yes.

And, in fact, they managed to get themselves onto the external phone lines and were making phone calls outside the jail?---That’s correct, yes.

And you were of the view that they were making phone calls with a view to getting assistance to abet their escape from Don Dale 2?---That’s what they informed me after the incident, yes, that’s correct.


5

10

15

20

25

30

35

40

45

And were you aware of the fact that they were on the phone while they were on the phone, weren’t you?---I could see them, yes.

So that was a concern there and then?---There were a number of concerns.

That was one of them?---That was one of them, yes.

And to react to that, you got some of our men to pull the phones out of the wall, if I can use that expression, they basically - - -?---We did. The staff went into the – a number of staff went into the officers’ post, pulled the – essentially removed the phone and they managed to restrain I think one detainee that was in there.

And while they were doing that some of these detainees were spraying some of the prison staff with fire extinguishers?---That’s correct, yes.

Now, the IAT were called out?---That’s correct.

By yourself?---No, that’s incorrect. They were called out by the superintendent.

Superintendent. Who was – was that - - -?---Mr Caldwell - - -

- - - Mr Caldwell?---Mr Caldwell called the IAT.

You were in agreement with that decision?---We certainly needed assistance, yes.

And things got worse because these detainees – and we’re talking about seven, aren’t we, at least seven?---I can’t remember the number but it might have been at least seven or eight or nine. I think there was quite a few in there, yes.

It escalated or degenerated because they then started lighting fires in the jail?---Against my advice they started lighting fires, yes.

They started fire in a cell?---No, not in the cell, they lit one in the courtyard and then they lit a mattress in the entry way to where the officers were, essentially, where I was stationed.

Now, fires in jail, I guess like anywhere, are deadly potentially; do you agree with that?---Are you talking to me or - - -

Yes?---They’re extremely dangerous, yeah, absolutely.

And the main danger really isn’t so much the flames, it’s the smoke. You’d agree with that?---Yes, I would actually agree with that, yep.

And these kids had chosen to light a mattress which is a particularly smoky aspect?---The mattresses can let off a lot of toxic smoke in my experience, yes.


5

10

15

20

25

30

35

40

45

Now, there was no access to a fire hose at this stage for your men but you were still nevertheless able to douse that fire with buckets of water; would that be correct?---We actually used a bin.

A bin?---A bin.

Thank you?---A large green bin.

Thank you for that. And these youths had set fire to the mattress which was exuding poisonous smoke and they placed that mattress in the doorway to block your men’s entry towards them?---I think it was more to try and poison us but I agree with what you’re saying, yes.

Now, either yourself or one of the IAT officers made a decision that we had to go in and stop this; correct?---It was my assessment we had to get the youths out of that environment as soon as possible due to the risk of smoke inhalation, yes.

And you’re a trained commander in IAT or at least you were?---In a previous life I was, yes.

And the proclamation was made, issued to those young detainees who were rioting “Cease and desist”, correct?---Something along those lines. I can’t remember the exact words.

And the youths refused to cease and desist after that proclamation; correct?--- ..... yeah, they didn’t actually – the communication that I had with one of the young men in there was that they weren’t going to cease or desist. They verbally told me they were going to keep going, yes.

And one of the complications in this situation was that one of the kids was actually compliant. He wasn’t part of a riotous gang. He was just sitting in a cell minding his own business basically; is that correct?---That is - - -

MR O’MAHONEY: I object. I’ve let this line of questioning go on for some time.

MR LAWRENCE: Thank you.

MR O’MAHONEY: I’m grateful for that expression of gratitude. Commissioners, it’s not clear that my friend’s client was involved in this incident. It’s a blow-by-blow description, it’s granular in its detail, and I just – if it is resulting in a line of questioning that’s relevant to my friend’s client’s interests I would be grateful for that indication. As it stands, I can’t see any link at all between my friend’s client and this line of questioning.

COMMISSIONER WHITE: Perhaps you can enlighten Mr O’Mahoney.


5

10

15

20

25

30

35

40

45

MR LAWRENCE: If my learned friend doesn’t know the relevance of this line of questioning bearing in mind this man was instrumental in making the decision to administer the gas on 21 August 2014, he clearly has no idea the meaning of relevance. And this objection is merely a gadfly objection to interrupt the time that AD has been granted to question this witness and to put me off my train of questioning. It’s obvious quite frankly as the nose on my face, the relevance of this questioning.

COMMISSIONER WHITE: I think Mr O’Mahoney is struggling.

MR LAWRENCE: Can I continue.

COMMISSIONER WHITE: Perhaps if you could – I believe that I understand where you’re going and I’m sure Commissioner Gooda knows where you’re going.

MR LAWRENCE: Yes.

COMMISSIONER WHITE: We’re not having any difficulty with that or its relevance. But I am suggesting that you don’t want to spend too much of your 45 minutes - - -

MR LAWRENCE: No, I don’t.

COMMISSIONER WHITE: - - - on this - - -

MR LAWRENCE: It’s not my 45 minutes. It’s AD’s 45 minutes and his family.

COMMISSIONER WHITE: Mr Lawrence - - -

MR LAWRENCE: And rest assured he is watching this as are some of his family members.

COMMISSIONER WHITE: We understand all of that, Mr Lawrence, and it is your 45 minutes because you’re his counsel. Mr O’Mahoney, I’m allowing the questions but Mr Lawrence is on a time limit.

MR O’MAHONEY: Thanks, Commissioner.

MR LAWRENCE: Now, it was that cease and desist, and they had refused, there was a complication because one of the kids was compliant, he was sitting in his cell, correct?---Sorry. Yes, that’s correct, sir.

Right. So the decision was to move in and quell the riot?---The decision to move in was made, yes.

Thank you. And the door in which they moved in to quell the riot was barricaded; correct?---It had a laundry trolley in front of it, yes.


5

10

15

20

25

30

35

40

45

It was barricaded?---With a laundry trolley.

And your men were able to get through that door?---They moved the laundry trolley aside, yes.

Was the laundry trolley on the outside or the inside of the door?---It was – the laundry troller was on the inside of the door, that’s where it had the burning mattress in it.

So they forced their way into the barricaded door?---Yeah, it was on wheels. It wasn’t barricaded very heavily.

Is that what you’re trying to say?---It was on wheels, it just rolled away.

Thanks for that. Now, as soon as those men entered the area where the seven kids were behaving in that manner up to that point, as soon as they entered, all of those kids immediately desisted; correct?---That is correct, yes.

And to quote you from an interview that you did with the detectives that night, they immediately hit the ground and dropped their weapons; correct?---Yes.

They laid down, face forward and the – those officers immediately applied restraints to them?---Yes, that’s correct.

And they were all taken out?---Except for the one hiding in the roof, but we got him out later.

Right. There was a head count and we discovered, in fact, that one was missing?---Yes, he was in the roof.

In fact, he had got himself up onto the roof?---Into the cavity, yes.

But he was fairly easily and quickly talked down by one of your colleagues?---That was by me.

By your good self and they were all taken and secured in the C Block which is the old remand section of Berrimah Prison?---That’s correct.

And that was known as a code yellow?---I can’t remember the specific codes for that particular centre but I’ll agree with that, yes. A code yellow is a ......

And a code yellow is a riot, isn’t it?---I think their codes are slightly different to ours, so there is a code that is a riot, but I’m not sure which ones – which ones are which for youth detention. They differ.

You’re the security officer, are you not?---I was, yes.


5

10

15

20

25

30

35

40

45

Well, you must know what code yellow is?---Let me be clear – sorry, maybe I’m not being clear. A code yellow in youth justice, the codes were actually different. So what we’d call a code yellow in youth justice might be a different code to the adult system, and at the moment I’m in the adult system. So I’m just saying to you I’m not clear. You’re right, there was a code that was riotous behaviour but I’m not 100 per cent sure if youth justice was code yellow in youth justice.

Take it from me in youth justice back then code yellow was a riot?---Okay. Thank you.

And that’s what this was, wasn’t it?---Yes. You could say that.

And the code that was called on the night of 21 August 2014 was not a code yellow, it was a code amber, wasn’t it?---I’m actually not 100 per cent sure what code they called. It was called before I attended.

Are you telling this court today that you’re not 100 per cent sure what colour code was called on the night of the gassing incident?---I’d have to read the reports. As I said, that code was actually called prior to my attending.

You’ve given sworn evidence about the gassing incident across the hallway in court 6 before Justice Kelly - - -?---That’s correct, yes.

- - - which included the colouring of the codes, didn’t it?---Yeah, but if I could read my statement I could probably confirm with you that that’s what was called.

Well, you can do that over lunch. But let me put it to you that the code that was called on 21 August 2014 to deal with my client was a code amber; do you accept that?---I accept that if it’s – if that’s what’s in the records, yes.

And the code amber is not a riot, a code amber is a code called for when an officer is in need of assistance; correct?---That sounds correct, yes.

Thank you. Might that be an appropriate time?

COMMISSIONER WHITE: Yes. Thanks, Mr Lawrence. Now, as I have explained Mr Sizeland, we do have to interpose a vulnerable witness at 2 o’clock?---Okay.

So you will actually have more opportunity, if you wish, to have a look at documents over the break. We think that might be about half an hour, that evidence, is that - - -

MR CALLAGHAN: I think that’s the current estimate but remains an estimate.

COMMISSIONER WHITE: It is. Here’s Mr McAvoy who will be helpful about the time estimate.


5

10

15

20

25

30

35

40

45

MR McAVOY: That’s my understanding, Commissioner, half an hour for the vulnerable witness.

COMMISSIONER WHITE: Thank you. That’s to give you some idea. So that you should be back here by 2.30 in order to resume the cross-examination?---Okay. Thank you.

<THE WITNESS WITHDREW [1.08 pm]

COMMISSIONER WHITE: And, Mr Callaghan, there’s no concern about Mr Sizeland actually consulting with Mr O’Mahoney about the documents that he’s concerned about.

MR CALLAGHAN: No.

COMMISSIONER WHITE: -- Is there?

MR CALLAGHAN: Or about anything else indeed.

COMMISSIONER WHITE: So you can talk to your lawyers about these issues if you need to do so to get any assistance at lunchtime. We’ll adjourn then until 2 o’clock. Thank you.

ADJOURNED [1.08 pm]

CLOSED SESSION ENSUED


PUBLIC SESSION RESUMED

RESUMED [2.44 pm]

COMMISSIONER WHITE: Thank you, Mr Lawrence.

<JAMES SIZELAND, ON FORMER AFFIRMATION [2.44 pm]

.ROYAL COMMISSION 27.3.17 P-1907 J. SIZELAND ©Commonwealth of Australia

5

10

15

20

25

30

35

40

45

<CROSS-EXAMINATION BY MR LAWRENCE

MR LAWRENCE: Mr Sizeland, in your statement, which is exhibit 170 paragraph 23, you state:

I’ve previously sworn an affidavit in relation to the events 21 August 2014 and it’s attached to my statement as annexure GS5.

And then you go on to respond to some allegations; do you agree with that---Without reading my statement, yeah.

Right. Paragraph 23 of his statement of 13 February.

MR O’MAHONEY: It’s not in front of the witness.

MR LAWRENCE: Yes. I’m aware of that. Have a look at this document.

COMMISSIONER WHITE: It can go on the screen, Mr Lawrence.

MR LAWRENCE: Yes, but I want him to have a look at this document.

THE WITNESS: Okay.

MR LAWRENCE: I think it’s been put on the screen. Well, paragraph 23 has been put on the screen. That’s the affidavit in question. Do you agree with that, JS5?---Yes, I agree with that.

And it’s dated 4 September 2016?---Yes, that’s correct.

Thank you. Now, in relation to the incident of 21 August, you first heard about that when – about 5 o’clock when you received a call from your colleague Mr Hansen; correct?---That sounds about right, yes, I did receive a call from Mr Hansen.

And he told you that some of the kids were misbehaving and throwing rocks; correct?---That’s correct, yes.

Did you ask him then why they were doing that?---No, I did not.

Did you tell him that you were unavailable for an hour and just monitor the situation?---Actually I told him I was unavailable. I told him to give the kids some space. I told him to monitor the situation. And I also told him that the other – that the general manager, not myself, was actually on call that evening, so yeah.

Thank you. You didn’t call back?---No, I didn’t call back. I referred any further calls to the general manager.


5

10

15

20

25

30

35

40

45

But you received a call at 7.45 pm from Mr Hansen again where he informed you that the situation is still not settled, they have become more aggressive and in his view it wasn’t going to end soon; correct?---No, that’s incorrect. I received a call from the general manager. I’m not sure of the exact time and it was the general manager whom – whom informed me that things were escalating, and I then – then I said I would attend, yes.

Right. And you headed in there via picking up Conan and Ben Kelleher?---That’s correct, yes.

And you picked up Ben specifically because you thought he’d have a fair chance of defusing the situation that was ongoing?---Well, that was my impression, yes.

And that affidavit that’s in evidence at paragraphs 32 and 33, you state examples of when in the past Ben has been able to defuse situations?---Yes. They are the two situations I was thinking about.

You get there round about 8 o’clock?---Yes.

And prior to that, you hadn’t been told that AD had breached his cell, had you?---Yes, I received a call on the way in - - -

Right?--- - - - from Mr Hansen. Mr Hansen informed me that there was a detainee loose in the centre at that stage.

Alright. So it was your view that it was around about then that AD had actually got out of his cell?---I can’t recall if he specifically said it was AD but I knew there was a detainee loose in the centre on the way into the centre, yes.

Okay. Now, Mr Middlebrook arrived about 8 o’clock?---I think he arrived a short time after me, yes.

Right. And the dog handler arrived at the same time as Mr Middlebrook with the dog?---I wasn’t present for when the dog handler actually arrived. I was in the centre.

Okay?---But I believe it was probably similar time.

And round about 8.34 pm, in fact, at 8.34 pm the IAT arrived. You accept that?---I accept that. That could be correct, yes.

Can you tell the Court how long it was after the IAT arrived a decision was made to administer gas?---Without reading my statement, no, I could not.

Approximately?---I’d have to actually read my reports and statement to give an approximate final.


5

10

15

20

25

30

35

40

45

I’ll move on. AD got out because one of the Youth Justice Officers hadn’t locked his cell; correct?---I actually believe that’s incorrect.

Alright. Well he got out because he broke a hole through the mesh, got his hand through that hole, tried the handle and it was unlocked; correct?---That – that lock in question I’ve always maintained was actually faulty, but nonetheless you’re right, the handle turned and the cell opened, yes.

Have you said anywhere at any time in any document, any recording, that you maintain that that handle was faulty?---I raised it with the investigator at the Children’s Commissioner. I indicated that there’s no independent locksmith has actually looked at that lock. I know that the PSU officers came and had a fiddle with it and managed to lock it. However, I maintain the locks are very worn and I don’t – I don’t quite accept the lock was actually left in an unlocked position. I would have preferred an actual independent locksmith to pull it apart to see how worn the mechanism is to see if it does lock every time properly, if there’s discrepancies in that place, that’s actually what I raised with the Children’s Commissioner.

Mr Voller was given a plastic plate that night to eat his dinner from?---That could be correct. I wasn’t there when dinners were issued.

That’s contrary to conditions?---I don’t think he should have a plastic plate in there, no, that’s correct.

He should have a paper plate?---He should have a paper or more disposable plate, yes.

Who gave him a plastic plate?---I don’t know.

Have you tried to find out who gave him a plastic plate?---No, I don’t. No, I didn’t.

It was a plastic plate that was used by him to craft a - - -

MR O’BRIEN: I object.

MR LAWRENCE: Alright. I’ll move on. Sit down. When you arrive you take control?---I coordinated with the superintendent and with the Commissioner to a degree, I took control of operations, yes.

And when you first arrived did you agree there was a lot of confusion evident with the Youth Justice Officers staff?---Yes. I’d agree there was a lot of confusion, there was a lot of noise and there was a lot of tension.

Now, you witnessed Ben trying to negotiate with AD but to no effect; correct?---Ben did attempt to – to talk to AD with – without much success.


5

10

15

20

25

30

35

40

45

Would it be fair to say that when you got near that attempt, you could witness AD actually getting angrier and it was – it would appear to be because of your presence. Do you accept that?---I believe that’s correct, yes.

Now, do you accept that during this entire incident there was two children in a cell doing absolutely nothing except playing cards?---Don’t think they were playing cards, no.

Alright. Well - - -?---And ......

Doing nothing naughty. Do you accept that?---I believe there was two people in the cell who weren’t actively engaging in destructive behaviour, I’ll agree with that, yes.

Thanks very much. Now, did you discover from Hansen that earlier in the night some of the kids had been complaining about a review that was due on 20 August?---No, I did not.

Did you discover it subsequently?---No, I have not.

Was it the case that there was a review due on 20 August for some of these kids?---I thought the day was 21 August but I could be incorrect on that.

Alright. Well, let’s say 21 August, and nothing had happened in relation to that review. Would you accept that?---The review I believe was conducted, yes.

Well, isn’t it the case that you were told that they were complaining about that and they started playing up by throwing wet tissues on the camera in the room?---No. I wasn’t told that. I was just told that they were playing up.

And weren’t you told that they were told by the shift supervisor or someone at least that they were going to be placed in another 24 hour placement because of them playing up?---No. I was not told that at all, and I only subsequently discovered it some time later during the investigation by the Children’s Commissioner.

Alright. Now, there is a directive in Corrections regulations that allows the use of it was in adult prison; correct?---That’s correct, yes.

And that’s directive 2.2.2; correct?---I would have to review it but I’ll say it’s correct if it’s correct, yes.

And that directive does not allow the use of gas in a youth justice centre?---I don’t believe it specifically says that you cannot use gas in a youth justice centre.

But it just allows it in an adult – it says in an adult facility?---It does say that, yes.

You knew that on the night?---Yes, I was aware of it that night.


5

10

15

20

25

30

35

40

45

Did you know there was two children in those cells who had asthma?---No, I was not aware that anyone in those cells had asthma.

Did you make checks to see as to their health situation before you became involved in the decision to administer CS gas?---No, I did not. There was no medical available.

Now, can I suggest to you that – have you seen the footage of the incident?---Of the 21 August incident?

Yes?---Yes, I have, yes.

And you’ve heard the audio components that are attached to that?---I’ve heard some of them, yes.

Can I suggest to you that, on my instructions from AD, he tried to climb through the storeroom window, which he had smashed earlier in his outburst, and in that storeroom there was several Youth Justice Officers. Would you accept that?---Yes, there was.

And the situation was that one of the Youth Justice Officers made a decision to push him back in by using a broom. Do you accept that’s what happened?---Yes, that is what happened.

Did you see that happen?---I physically did not see that happen. I saw it on the video recording afterwards.

Did you instruct the Youth Justice Officer to do that?---No, I do not.

Did you hear one of the Youth Justice Officers at that time say:

No, let the fucker come through because when he comes through he’ll be off-balance and I’ll pulverise – I’ll pulverise the little fucker. Oh shit, we’re recording, hey.

And then you hear laughing; have you heard that?---I’ve since heard that on the audio, yes.

Was that you?---That was not me.

Who was it?---I actually don’t know who it was.

I put it to you at that stage in the situation the Youth Justice Officers if they’d been behaving professionally should have just let the kid come through and arrest him. That would have been the end of the story?---I’m not sure if the – if the youth was going to come through that window armed or not. He was being very destructive and violent on that night so I can’t say it was just going to be a simple case of pulling him


5

10

15

20

25

30

35

40

45

out of the window and trying to – to use your words – arrest him. I don’t think it was quite that straightforward.

Alright. Well, he gets pushed back into the courtyard; correct?---That is correct, yes.

And it’s after that that he throws a piece of aluminium through the same window which hits one of your colleagues on the inside of the right arm; correct?---I thought he threw the metal bar prior to trying to climb out but I wasn’t 100 per cent sure.

Alright. Then we hear on the footage:

Go grab the fucking gas and fucking gas them through here. Get Jimmy to gas them through here.

Have you heard that?---I have heard that on the footage, yes.

Who was it who said that?---I do not know who says that.

Someone goes on to say:

It would make my job easier if you show Caine, he will just go ‘yep, approve, bang’ go fucking get them out.

Have you heard that?---Actually, no, I haven’t heard that. I’m not sure who said that, I’m sorry.

Were you there when that was said?---I don’t recall that being said on the night, no.

You haven’t heard it?---I’ve heard a lot of the footage. I don’t specifically recall though that particular line, I’m sorry.

Alright. Now, there was a guard dog, if that’s the right term – and it probably isn’t – that was out there with the IAT, an Alsatian; correct?---Yes, that’s correct.

And there was – and he was in the BMU?---He never actually got to go into the BMU, no, that’s incorrect.

Sorry, well, he was in the corridors adjacent to the BMU, forgive me?---He was in the corridor, yes.

Now, there was a dog plan, was there not, which was apparently to knock in the door of the basketball court, get the dog to distract AD and then other officers could come in the other door and arrest him; correct?---It was to try and contain him and get him to – to get AD to comply.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: And do you - - -?---It wasn’t to distract him. It was actually going to be used as a compliance method.

I see. Well, what’s the difference between distracting him and .....?---Well, it’s not a case of where – it’s not a form of we’re distracting him in one direction and we’re going to hit him in another. It was literally the case that the plan was to – with the presence of the dog, to get him to completely desist his activities, lay on the ground and the staff would go in there safely and, to use your words, arrest him or restrain him or whatever it is.

COMMISSIONER WHITE: Alright. Thank you.

MR LAWRENCE: Alright. And that didn’t happen?---No, the door had been jarred shut. The lock was smashed over.

So why didn’t you knock it in?---We couldn’t knock it in, not from the outside.

Well, are you telling this Commission now, on your oath, that you attempted to knock it in?---That door was jammed very hard shut. We could not knock it in.

Would you be good enough to answer the questions. I’ve only got a matter of minutes here. Are you telling this Commission that you attempted to try and knock it in?---I believe staff members did try and open that door. They could not. I personally did not, no.

Did you witness that?---I witnessed staff members trying to open that door, yes.

You did?---Trying to open the door? Yes, I - - -

Name them?---I can’t name the staff members, I’m sorry.

MR O’MAHONEY: There’s no need for my friend to raise his voice in that manner.

COMMISSIONER WHITE: Alright. Alright, Mr O’Mahoney, he knows that. He knows that.

MR LAWRENCE: Sorry.

COMMISSIONER WHITE: He knows that. He doesn’t need to.

MR LAWRENCE: I accept that.

COMMISSIONER WHITE: Yes. Yes. It’s probably not helpful.

MR LAWRENCE: And I agree with that. I apologise.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Are you unable, Mr Sizeland - - -?---Well, I’m unable in the way the door was shut tight. The staff member who was – you know, the dog was positioned in a spot, there was a staff member there trying to open the door, he could not get it open.

Mr Lawrence said can you - - -?---No, I cannot name the person. No. I’m sorry. It would’ve - - -

.....?---I just can’t remember. It was a Youth Justice Officer. I – you know, we positioned somebody on the door to open the door and they could not get it open.

How many Youth Justice Officers were actually called out to this incident, or were present on the floor themselves working?---On that particular night when I arrived all staff in the centre were essentially present there for the incident, and that includes the low security area staff had been essentially locked down and the staff were in the main or higher security area attending to this. So it was – it was essentially all available staff who were there.

Yes. How many?---A dozen to 15, plus IAT plus dog squad.

Could be 20 people?---I think it would have been between 15 and 20, yes.

Were they all men?---No. There was a number of females. There were certainly female staff who were there as well.

And you recognised them all as staff, except perhaps the people from the adult prison did you recognise them all as staff you worked with on a regular basis?---It would have been fair to say that I know all the staff there. I work with them on a regular basis, yes. Yep.

So you knew actually who was there?---I knew who was there on the night. I’d literally have to – probably the person who could tell me who was trying to open the door would be the dog squad officer. So it was - - -

Is there any reason why the dog squad officer would know the Youth Justice Officer trying to open the door?---Actually, that’s a very good point, actually, no, you’re right. But someone was assigned to open the door and they couldn’t open it and I just can’t recall who that was I’m sorry.

You can have an extra few minutes for my intervention, Mr Lawrence.

MR LAWRENCE: You’re too kind.

Following from that question, and can I suggest to you that there was enough staff available if there was any problems being faced in the maximum security unit to have them attend on that; would you agree with that?---I’m sorry, I’m not following your question.


5

10

15

20

25

30

35

40

45

Let’s say there’s a problem in the maximum security unit where the kids are kicking the door, they’re making a noise, they’re getting excited because of the ruckus that’s going on in the BMU, okay, and they’ve already escaped from there before, they’ve got up through the roof, through the ceiling?---That’s correct. Yes. That’s .....

That being the case you had ample resources to send a couple of Youth Justice Officers to those cells, stand outside, tell them inside, “Calm down, take it easy, it’s only AD, he’s going to be in our custody in a minute”, and you could have put one up on the roof just in case there was any potential of them getting up there; would you accept that?---I don’t know we would have put a staff member up on the roof, but as the night unfolded I’m not sure I 100 percent agree with that, no.

Now, I put to you that there was no need to administer the gas that night?---I have a different opinion on that point and ..... otherwise.

I put to you this, that once – and there’s evidence in this Royal Commission on this – that once the dog started barking my client, AD, gave up and he said as much. He said “I give up” and people heard him say that. Do you accept that?---I have heard that on tape, yes.

So you do accept it.

MR O’MAHONEY: I object. That is not the evidence. My friend has to be very careful about positing a question like that.

MR LAWRENCE: Well, there is evidence. The statement of AB says it for a start. My client gave that evidence.

MR O’MAHONEY: The way the question was framed, Commissioner, it seemed to be directly responsive to the answer and it was framed in terms of, “So you say X”, he didn’t just say that, he said something quite different.

MR LAWRENCE: Well, I don’t understand so I’ll just move on if I can.

COMMISSIONER WHITE: I think so, Mr Lawrence. I heard what – what Mr Sizeland said.

MR LAWRENCE: Yes.

COMMISSIONER WHITE: He has heard that that was said.

MR LAWRENCE: And also what my client instructs me and he’s given this evidence before this Commission is:

Tell Ben I want to talk to him.

Have you heard that was said?---No, I’m sorry.


5

10

15

20

25

30

35

40

45

And he was told:

No, you’ve had your chance.

Have you heard this? This was audio on the footage?---I do believe I did hear someone saying:

No, you’ve had your chance.

I don’t know who said that though.

And then some other Youth Justice Officer says he wants to talk to Ben, remember that?---I don’t actually recall that.

Well, this is the same sequence?---Okay.

And then it’s another Youth Justice Officer saying:

Hey, fellows, they’re going to be gassing them shortly.

And then another one says:

He wants to come out and he wants to talk to you.

And somebody then says:

Are you kidding?

And then another Youth Justice Officer said:

He said he wanted to talk to you, but I’ve said ‘you’ve had your chance so’.

And then another Youth Justice Officer says:

Yeah, don’t talk to him, he’s fucked now.

Now, was that you who said any of that?---No, that was not me who said that.

You’ve heard that on the audio from the Handycam?---I have heard words to that effect on the audio.

Who said it?---I don’t know. I don’t know who said it. I wasn’t there when it was said.

There’s also evidence before this Commission and it’s from the Children’s Commissioner’s investigation and subsequent report, and it’s at page 18 of that report, where AD is said to have jumped up on the window and told a Youth Justice


5

10

15

20

25

30

35

40

45

Officer who’s described as D by the Children’s Commissioner at page 18 that the Youth Justice Officer said he wanted to come out, and he was told not through the window, come out the door. And AD said to him, “No, the dog’s there”; have you heard about that happening?---No, I haven’t heard that happening.

Have you read the Children’s Commissioner’s report?---No, I haven’t.

You haven’t read it?---No, I have not.

Why not?---To be completely frank, when the Children’s Commissioner report was released I actually found a lot of the substance quite traumatising and I did not read it.

Well, do you accept that’s what was said?---Well, I haven’t specifically heard that on the Handycam so it’s difficult for me to accept that and I didn’t hear it with my own ears.

So that being the case, we don’t need to gas anybody, do we?---I still believe it was the best course of actions in relation to this incident.

The next day, AD had been taken – was returned to Don Dale; correct?---That’s correct, yes.

He had been taken overnight to the maximum security section of the adult prison, B Block?---That is correct, yes.

And he had been returned the next day because that was discovered to be unlawful; correct?---Yes, that’s correct.

And he was - - -

COMMISSIONER WHITE: Mr Sizeland, you really don’t need to keep leaning forward?---It’s habit.

I’m concerned you might be uncomfortable doing that all the time---It’s okay. Sorry.

MR LAWRENCE: And when he returned to Don Dale, he was placed – where was he placed?---I actually can’t remember.

Were you there the next day?---I was on duty the next day, yes.

Well, he was placed in the BMU again?---I can’t answer that. I don’t know if that’s correct or not.

Well you’re the deputy superintendent. You have care of AD, don’t you in law?---That’s correct, yes.


5

10

15

20

25

30

35

40

45

You’re his Dad. You’re the equivalent of his parent?---I wouldn’t go that far. But I certainly have care and oversight of that centre.

And the fact of the matter is, and the evidence is, that when AD was returned to Don Dale, after spending 17 days in solitary and having been gassed and then having a night in B Block, and then being spit hooded and returned to Don Dale, he’s put back in that BMU unit. That’s the fact. Do you accept that?---I’m just trying to think if – if it was actually the BMU that was used. I – for some reason I don’t – I’m just not sure that was actually the case.

Well, his evidence is that he was put back in the BMU, which was then empty. You’d accept that the BMU was empty the next day, 22 August?---I do accept that. That is correct, yes.

And he was kept in there for a period of three days. Do you accept that?---I actually thought we used the – from memory I thought we used the – one of the cells, the at risk cells at the front of the centre. I didn’t believe we used the BMU unit at that time. That’s why I have a question mark over this particular topic.

Well, can you remember this?---No, I cannot remember this.

COMMISSIONER WHITE: Would the records, sir, of the detention centre tell us where he actually was placed?---They should, yes.

If there were any controversy about it?---Mmm.

MR LAWRENCE: You’ve told us that the BMU, as far as you were concerned, was inappropriate and horrible?---That’s – I stand by that statement, yes.

Would you agree that AD – he was 14. After all of that, 17 days gassing, a night in B Block, spit hooded, should be put back into that BMU unit again on his own in a cell with no one else in any of the other cells?---I think the issue wasn’t the fact that we were using the BMU, it was the issue that whatever cell was used it was the only secure cell on the centre.



5

10

15

20

25

30

35

MR LAWRENCE: Isolation. Let me put this to you: as his guardian-in-law, didn’t you consider that AD, after all of that, should just be put in a cell, given a good talking to by either Ben or someone appropriate, and said, “Listen pal, you just seen what’s going on, you’ve got to pull your head in, you’ll be right, the other kids are still up there, you’re back here, you can stay in the maximum security cell, we’ll watch over you, you can have lunch, you can have a shower in private, you’re not going back to the BMU”. Don’t you think that would have been the proper thing to do to that boy?---I think it would have been by far the proper thing to do if we had the appropriate environment to do it within.

Well, you could have put him in another room?---Unfortunately, the domestic fabrication of Don Dale led to such a high risk – of a high risk of another escape that it was deemed too high risk at that time to move him to a standard cell and to qualify that, even the maximum security cells that we’re speaking of all had domestic fabricated doors that could be easily removed or kicked off. And staff – there were a number of concerns about another escape from custody and there were a number of concerns from staff about the volatility of some of these detainees. They’re not good, they’re not ideal, but there were very, very limited options as .....

COMMISSIONER WHITE: But what about using some other techniques. What about actually speaking kindly to the boy and suggesting to him that perhaps he could talk about his problems to someone he could listen to – who would listen to him and he felt that he could relate to? I mean, often this is – this is the next step when you’ve had turbulence, you then have sort of a period of confession, if you like?---It is, and you are right and over a period of time I actually did get to that space with this detainee where we could, but at that time there was a lot of very volatile behaviour and there was some extreme risk from some very high risk behaviour.

MR LAWRENCE: Ben Kelleher gave evidence, he didn’t give evidence here but it’s in his interview with the Children’s Commissioner that the next day he spoke to AD and AD apologised to him profusely for swearing at him the night before. Are you aware of that?---No, I’m sorry, I’m not aware of that.

You knew AD?---Yeah, I get along with him quite well, yes.

He was an Aboriginal kid from the bush.

MR O’MAHONEY: I object. He was from where he was from. If the question is directed at the witness’ knowledge of his background, so be it, but really that’s just a truism, it’s not in dispute and goes nowhere.


5

10

15

20

25

30

35

40

COMMISSIONER WHITE: Mr O’Mahoney, I don’t think there’s any need to object to that. Mr Lawrence is simply seeking to establish the degree of familiarity, Mr Sizeland with AD.

MR LAWRENCE: He had spoken to you about where he was from, hadn’t he?---We had many conversations, yes.

It was from the bush, wasn’t it?---He’d spent a lot of time locally as well but I do know where he’s from and I know what his family history is, yes.

He told you that he was hoping to go through ceremony?---That’s correct, yes.

And maybe even one day become an elder?---I had that conversation with him, yes.

Now, I just want to go back to complete this questioning. You’ve told us that you consider the conditions in BMU that AD was in for 17 days horrible and inappropriate; alright?---Yes.

Now, look, I can understand at least the logic in the fact that they were secure, those cells, and these kids had escaped on 2 August. I can understand that. But why did the conditions that they were subjected to in there have to be so horrible?---I’m sorry. I don’t understand the question.

COMMISSIONER WHITE: Couldn’t somebody have actually cleaned it, for a start, with a bit of carbolic soap or sugar soap or bleach. Just very basically there isn’t a single witness before this Commission, Mr Sizeland, on either side of the record, that is, from the Government’s side or from the detainees’ side, who hasn’t said that it was the most disgusting place, and not fit for a human being to be in?---I - - -

And part of that was it was filthy dirty?---Okay. Correct.

That’s just a management issue at the most basic level of getting some soap and hot water and cleaning it. Why couldn’t that have happened?---I was of the impression that hygiene actually happened in there on a daily basis with the place being mopped out on a regular basis.

But you couldn’t think that. You couldn’t think that against the uniform description of it as a place that stank?---Okay.

MR LAWRENCE: Mr Sizeland, why couldn’t you at least let the kids out and see some natural daylight?---I think the kids did come out on a daily basis for - - -

They got out into the courtyard for an hour where they had a shower, that was about it, wasn’t it?---I believe they actually got outside and onto the basketball court.

But it wasn’t for long, was it?---No, it wasn’t for long.


5

10

15

20

25

30

35

40

45

And when they were allowed out it was one at a time wasn’t it?---Initially it was one at a time and then I changed it up to two at a time.

Why couldn’t they be given – why couldn’t they be allowed to go to the bathroom privately, to do the toilet and then wash their hands after they’d done the toilet and then put back in the cell. Why couldn’t that happen?---I can’t answer that, I’m sorry. I don’t know the answer to that.

You know that AD was in the cell for 17 days?---Yes, I’m aware of that.

There’s no air-conditioning or a fan in that cell, is there?---No, there’s not.

Just a toilet bowl?---Just a toilet.

So after he defecates, he can’t wash his hands?---That’s correct, yes.

And then he gets his lunch given to him in there and he can’t wash his hands before he has his lunch?---That’s true, yes.

That’s cruel?---Unfortunately, it was the – the situation that we were in.

But you could have changed it, Mr Sizeland. You could have made it easier, quite easily?---Well, I actually did attempt to make it easier by having those boys moved out in a very early and initial stage of their placement.

Have you got any children?---That’s a personal question. I’d rather not answer.

Alright. Well, you were 14 once?---Yes, I was.

You remember what it was like?---Yes.

Where were you when you were 14?---Again, that’s a personal question I’d rather not answer.

MR O’MAHONEY: I object to this line of questioning.

MR LAWRENCE: No, I insist on this.

MR O’MAHONEY: Well, I insist on the objection.

COMMISSIONER WHITE: Well, I’ll rule on it, provided you don’t go over the top, Mr Lawrence, you can finish this line of questioning.


COMMISSIONER WHITE: You know what I mean.


5

10

15

20

25

30

35

40

45

MR LAWRENCE: Remember when you were 14, I don’t care where you were, right, you’re a 14-year-old boy?---Yes.

Can you imagine being in the cell that AD was in, and all of those conditions that he suffered under in there for 17 days in a row. Can you imagine that when you were 14?---No, I can’t, I’m sorry.

Well, try. Alright. Now, I want to put this to you: if you were subjected to that, you would complain, wouldn’t you?---I don’t think there’s a good comparison between my childhood and the activities of these – these boys. I couldn’t imagine a lot of things when I was 14. I couldn’t imagine arming myself. I couldn’t imagine threatening and acting in an intimidating manner towards staff. I couldn’t imagine escaping from lawful custody with force. I couldn’t imagine going to Palmerston, stealing cars and fulfilling what was planned out to be as a mass escape. I would never in a million years would have imagined these activities were going to happen. And I certainly couldn’t imagine what occurred on that night of the – of the mass break-out. So – in my own comparable story, it’s not appropriate to be brought up in this place, I’m sorry.

Well, thanks very much for that answer. Imagine if you discovered that your 14-year-old son had been subjected to these conditions.

COMMISSIONER WHITE: No, Mr Lawrence, I don’t – that’s – I think you’ve gone far enough on this theme, if I may rule, no more questions on it.


I want to put to you, you know, at the end of each day you go home, right, you have dinner, you watch telly, you get up the next day, you go back to work. That was going on throughout this period in August; correct.

MR O’MAHONEY: I object as well. If my friend is trying to again somehow direct more personal questions about different subject matter to this witness, it’s just not an appropriate line have inquiry. We’ve just had five minutes on the scope of the witness’s imagination. Are we really going to have his TV habits late at night. It’s just not appropriate, Commissioner.

MR LAWRENCE: I’m just about to end it, I think it is appropriate. I want to put something to him based on this.

COMMISSIONER WHITE: Well, perhaps you could reduce it a little, the background information and perhaps just relate it to he goes home every night, comes back every day. That’s the point of it, isn’t it?

MR LAWRENCE: While this is happening these kids who are under your care are in this BMU unit; correct?---That is true, yes.


5

10

15

20

25

30

35

40

45

Each day, each night, for AD, 17 days; correct?---That is correct, yes.

And I ask you now as a man how do you, as a man, how do you go along with this?---I think that’s a question that you should direct towards my superiors in relation to that matter.

Is that some way of saying you’re just obeying orders?---I did not have the authority to take those boys out into general population, given the high risk nature of what they were doing and I’m pretty sure that’s actually in my statement as well, that permission had been put up right through the line and unfortunately come back as it was, so I’m sorry.

I finally put to you, on behalf of AD directly and his nanna and his aunts and his other family members, that you, sir, are a coward and a bully and you should never have been let near any child detainees.

MR O’MAHONEY: I object, Commissioner. That is really not founded in the evidence and to frame a question by reference to people that the witness has never met, to indicate that four people have formed that view about him, how does he feel about it, there’s a way of addressing that sort of question that is appropriate and probative. That was not the way. I ask that it be reframed or withdrawn.

COMMISSIONER WHITE: Mr Lawrence appears for the clients for who he appears, Mr O’Mahoney, and so I think that part of your objection is not well-founded. What – we’re not going back over the evidence again but perhaps you might like to break that up into some parts as Mr O’Mahoney has invited you. Why do you propose that Mr Sizeland agree with you, that he is a bully. Why do you propose that he should agree with you that he is a coward.

MR LAWRENCE: Because the fact that you countenance the continual treatment such as this for that period makes you a bully. I put that to you?---What, do you expect me to agree to that or - - -

You can say whatever you want---Alright. All I can say is to ..... youse matter and your client is that, you know, when we had the initial – when we had the initial major incident there were some problems and there were some issues. I still met with him and gave him the – the decision or the classification, if you’d like, to go to the low security area for the benefit of him and the benefit of all those boys whom escaped. We went through some very difficult times. We built up our relationship again. I gave him more opportunities in the new Don Dale or Don Dale 2, as you call it, and we had him subsequently moved down to the low security area and we had issues in that place as well, as we mentioned, the – AD was the one who seriously assaulted an officer during the G Block incident by kicking him in the groin and that was quite a nasty assault, but I still worked with him, we still got him out and when we left Don Dale he was actively engaging with the other kids in the regular security area, you know, and we parted ways with a handshake. That’s all I can say. I’m not happy


5

10

15

20

25

30

35

40

45

with a number of things, but it was an extremely difficult situation that we were working in, and that’s pretty much all I can say on the matter, I think.

The Youth Justice Officer’s statement, Ian Johns, says at paragraph 86:

While I was on shift the kids requested on several occasions to see the assistant general manager, they got through to me on the intercom and I asked him if he was still going to talk to the boys in the BMU. And he replies yes, before I knock off.

That’s what happened on the night of 21 August, wasn’t it?---Actually that didn’t happen on 21 August. I have seen this statement recently. It’s the first time it’s ever been raised with me that there were requests to specifically to speak with me. And I don’t know what Ian Johns would have been doing in that particular area of the centre as the shift senior receiving those intercom calls, but no, I’m sorry, and – and I think it’s been very clear with a lot of the evidence that’s been given, that I’ve given, that I had no problems going out speaking to the boys. It was actually something that I would regularly do. I wouldn’t have a problem going out seeing if I had a request and that request wasn’t passed on to me by Ian or the shift supervisor that was on that night. Nor was it relayed to me when I actually attended that night for the emergency situation that was unfolding.

One last question. That affidavit that is before you which is JS5 attached to your statement of 30 February. Have a look at page 3, please?---One, two, three.

Have you got page 3?---Yes.

COMMISSIONER WHITE: It’s on the screen there---It’s on the screen, thank you.

MR LAWRENCE: Right, now read to yourself paragraphs 9 and 10?---Yes sir.

This is a sworn affidavit that was filed in the Supreme Court proceeding last September?---Mmm.

Those paragraphs are incorrect?

COMMISSIONER WHITE: In what particular, Mr Lawrence?

MR LAWRENCE: I can put the bit. Well, you remember being cross-examined about this at the trial, don’t you?---I did get cross-examined about one of the reports, but I don’t believe it was this one.


So those paragraphs are untrue?---I wouldn’t say they are untrue but at that time these detainees had not assaulted staff.

No. And you swore that affidavit, or you affirmed it with your lawyers, presumably?---Yes, that’s correct.


5

10

15

20

25

30

35

40

45

50

You read it?---Yes, that’s correct.

And you signed it?---That’s correct, yes.

And it’s inaccurate?---It’s inaccurate in the sense that assaults on staff started taking place after I signed this, and I – and I believe in my mind that’s where there was some confusion. There were a number of serious assaults that did occur but at the time of this particular incident, no, there had been a fair amount of threatening behaviour but no actual assaults.

Right. And the thrust of these paragraphs in your affidavit, of course, was to show to the court how potentially dangerous these children were, thus justifying your decision to gas them that night, wasn’t it?---No, it was just describing the detainees, how I knew them, my engagement with them through the processes that I’ve talked about.

Alright. Well, you’ve given – affirmed evidence here at the Royal Commission and you’ve also attached this affidavit, including these paragraphs 9 and 10 to your statement of 13 February as referred to earlier at paragraph 23; correct?---Yes. Correct.

And you would have done that with legal advice?---Yes. Correct.

Alright. And so why didn’t you rectify the incorrect paragraphs 9 and 10 before you gave it to these Commissioners to read and accept as truthful?---To be honest with you, I didn’t realise I had the opportunity to change this – this information that was handed to the Supreme Court.

I mean, this was a bit of a big deal when you were cross-examined. You had to concede in front of Kelly J that these two paragraphs were incorrect; remember?---No, I – I certainly conceded that – that – that that information wasn’t as correct as it should have been.

Right?---But it was, yeah, it was oversight.

An oversight?---It was an oversight, yeah.


5

10

15

20

25

30

35

Thank you.

COMMISSIONER WHITE: Thanks, Mr Lawrence.

<CROSS-EXAMINATION BY MR O’BRIEN-HARTCHER [3.31 pm]

MR O’BRIEN-HARTCHER: O’Brien-Hartcher, if it please the Commission, I appear on behalf of AG to ask some questions of this gentleman.

COMMISSIONER WHITE: Yes. Thank you. Just bear for a moment while - - -

MR O’BRIEN-HARTCHER: I think by the time I mention it he’ll know who I’m talking about.

COMMISSIONER WHITE: Yes, he’s just having a look.

THE WITNESS: Yes. I’ve got it ..... AG.

MR O’BRIEN-HARTCHER: So you know who my client is and who the person is that I want to talk to you about?---No – I know who the person is, yes.

So I represent AG and that’s the person on the piece of paper?---Yes.

And I want to ask you about an incident where she alleges you stomped on somebody’s head; do you know what I want to talk to?---Yes, I’ve seen the – yep.

Okay.

COMMISSIONER WHITE: And that’s the subject of Mr Sizeland’s statement of 10 February.

MR O’BRIEN-HARTCHER: That is correct. Mr Sizeland gave a statement on 10 February.

COMMISSIONER WHITE: Yes. Thank you.

MR O’BRIEN-HARTCHER: In paragraph 10 of that statement, sir, you say that this incident was one in which AJ attempted to punch you; is that right?---Yes, that’s correct.

Okay. And – but he never actually did punch you?---He didn’t connect, no. Not there he didn’t, no.

Okay. So he didn’t punch you that day. Sorry. I thought you were reading the statement. He didn’t punch you that day; is that correct?---He became non-

.ROYAL COMMISSION 27.3.17 P-1927 J. SIZELAND XXN©Commonwealth of Australia MR O’BRIEN-HARTCHER

5

10

15

20

25

30

35

40

45

compliant in – when we secured him, he had a bit of a roll. I shouldn’t say a bit of a roll. He became noncompliant in the BMU. He’s quite physically strong. Restraining him, I got a few bruises out of that. But – look, he didn’t land a shot on me outside in the courtyard where we were talking, no.

So the question was did he punch you that day?---No, he didn’t.

You chose to speak to him outside. Was there good CCTV coverage of that area where you chose to speak to him?---I believe there was. I think there was good CCTV coverage of that area, yes.

Okay. And we’re talking about an incident that happened on – well, could we have a look at the IOMS report that Mr Sizeland wrote for this incident and that’s JS7. Just – the incident date is 12 June 2014; is that correct?---Yeah, that looks correct, yes.

Okay. Thank you. I’ll just take you to the top of that page, Monday, 16 June 2014, 8.27 am. What does that date refer to?---That’s a – I’m sorry, that’s a – that’s a – that shouldn’t have come up with the IOMS report.

Sorry, sir?---That should not – when it says Monday the 16th, 2014, that shouldn’t be on the IOMS report. That’s something that shouldn’t be there. That’s a – I don’t know what that is ......

Given that it is there, what does it tell us?---I have no idea.

Does it tell us when you created this report?---16 June, no, it doesn’t because the reports, I believe, were actually written the same day.

Okay. Well, I just ask you to have a look at the bottom of that report?---Mmm.

Sorry, page 2 technical folk. Sorry ..... James Sizeland – signed James Sizeland, 16.6.2014. Is that the date the report was written?---I don’t know. My – from my recollection I should have wrote the report the same day.

Okay.

COMMISSIONER WHITE: Can you explain then why you’ve put that date which is the date that appears at the top of the IOMS report?---It might have had my signature block at the bottom of the page. I – I can’t – that’s – as I said, that looks like a signature block at the bottom, so, no, I can’t explain why it was the way it was, no.

Could it not be that that, in fact – the reason is that was the date that you filled it in?---No, I’m sure I wrote it the same day. I recall this incident and I did the reports.


5

10

15

20

25

30

35

40

45

MR O’BRIEN-HARTCHER: So your evidence is that you didn’t do this on the – you didn’t do your report on 16 June. You did it on 12 June; is that right?---Yeah, my recollection of this matter is I did the report on the same day as the incident, yes.

Alright. Do you know when anybody else wrote their reports?---I don’t know.

Okay. So your evidence is that that date at the top, 16 June 2014, 8.27 am, is not the date that this report was created, and it’s not the date and time that you wrote this report?---Yeah, the – no, I don’t believe it was.

Okay. This incident is described as an internal incident non-notifiable and it’s given an incident level 3 just below the bottom of the screen?---Yep.

What do those things mean?---Depending on the severity of the incidents, okay, so a level 1 would be a escape custody.

Alright?---a very high level incident.

Alright?---A level 2 might be a fight that has injury. A level 3 – and subsequently down the scale where you have level 3’s a lesser incident.

Okay?---Where an alarm’s raised but there’s no injuries or anything like that.

So if a detainee had punched a staff member, what level would that attract?---If there had been injury that would attract level 2.

What does non-notifiable mean?---Non-notifiable, that means the reports had to be done but if it’s a notifiable incident that makes it amongst level 1 or level 2.

And does that have anything to do with the retention of CCTV footage?---No, not necessarily.

Okay. Do you know whether footage was kept of this incident?---No, I’m not sure.

Okay. Is there a use of force report filled out?---I am going off memory but I believe there was, yes.

Okay. And that’s because there was a use of force on a detainee?---Yes, correct.

Okay. And if someone was looking for CCTV – I withdraw that. The use of force report, can we have a look at that, please. It’s JS11 from memory. And AG didn’t – AJ didn’t punch you that day; is that correct?---I’m saying he didn’t – he didn’t punch me on that day, no.

Okay. Thank you. This date on this use of force report was 11.6.2014; is that right?---11.6.2014, that’s the date.


5

10

15

20

25

30

35

40

45

Top right?---Top left.

Sorry, dyslexic, sorry---That’s the day on this form, yes.

That’s the date of the incident?---I believe so, yes.

Same incident as the IOMS report?---Yeah.

Different date now; is that right?---I can’t explain that, I’m sorry.

Now, you list your injuries there as left shoulder strain - - -?---Yep.

- - - bruised mouth, punch, skin off right elbow, skin off right knee: do you agree with that?---That’s close.

Now, you’ve just given evidence that AJ didn’t punch you that day?---Yes.

But the truth is he didn’t punch you, isn’t it?---No.

What you’ve written in that use of force report is not correct, is that what you’re telling this Commission?---As I said, he didn’t punch me in the yard. He, for lack of better words he certainly took a swing, that was actually in the BMU, he became very noncompliant, started wrestling, which is quite common for him, he used to do a lot of it. And yeah, it was like a – he got a hand free and just sort of did a little pop on my chin - - -

Okay?--- - - - when I was restraining him.

Your early answer that he didn’t punch you that day?---I don’t believe he intentionally punched me. That’s – I don’t believe.

That’s .....?---I don’t believe in the BMU he intentionally punched me.

That’s what you’ve written in your use of force report; is that correct?---Yes, bruised mouth.

Was AJ noncompliant outside in the yard at first point?---Once – once he – at the first point? I’m not sure what point you’re talking about.

Sorry, maybe that’s an unclear question. Thank you. You spoke to him outside, it was in the visitors’ area?---It was in the undercover shaded area.

Yes?---Yep.

And there was an incident where you say he attempted to punch you?---Mmm.


5

10

15

20

25

30

35

40

45

And then he was taken to ground by you and Ben Kelleher and Conan Zamolo?---It was mainly me.

Okay---Took him to the ground. Conan I believe called a code.

Alright?---Yeah.

Where did you have hold of AJ?---Had him by his arms.

Okay. And where did Kelleher have hold of AJ?---Well, I’m actually not 100 per cent sure because I was, you know, I was on the ground.

Were you on top of or underneath AJ?---I was underneath.

You were underneath?---I was underneath.

I see. And was he thrashing about and aggressive at that point?---Actually, at that point he was quite compliant.

He was quite compliant, just lying on top of you?---He was literally – it was literally just a case that we were there and staff came out and responded and we took him to the BMU.

Okay. So you’re saying that Kelleher and Zamolo weren’t there when this incident occurred. They came out?---No, they were there.

Okay. Now, in the BMU after this, when you took him there, he was struggling quite violently?---Yes, that’s correct.

And he had to be ground stabilised?---He still had one handcuff on his wrist, yes, that’s correct.

Okay. Ground stabilised twice?---I don’t think it was ground stabilised twice. I think it was once.

Okay. And what sort of surface was that?---Sorry, I don’t understand the question.

Well, the BMU, what is the surface of the floor?---It’s polished concrete.

Okay. Are you telling us he didn’t receive any injuries on that day?---I don’t believe he did, no.

Okay. Sorry, technical folk, could we see that use of force report again, I apologise. Just go up a little bit. Thank you. So AJ is redacted and injury – if injured, injury, nature of injury sustained. Now, there’s a marking there, is that because there’s been something put there and then erased?---I’m sorry, I’m not – no. Sorry.


5

10

15

20

25

30

35

40

45

So you’re saying that’s not correct?---No.

Okay?---There’s no – there’s no – I don’t know what – white-out or whatever you’re referring to, I’m sorry. No.

Well, extrapolating from that is it your evidence is that reports and those sort of things were never altered or interfered with in the youth detention centres?---Not that I’m aware of, no.

Okay. Thank you. Sir, I am suggesting to you that AJ did receive injuries that day and that he had scratches to his knees and injuries to his chin and arms because he was ground stabilised?---Look, I’m – I’m sorry, I don’t believe he had any injuries.

Okay. Would you agree with me that these reports don’t add up very well?---I agree that there’s some confusion on what those dates are doing there, yes.

Okay. And there’s also some confusion, for example, about when they were created and why you’ve got a wrong date underneath your signature?---There is some confusion but this can be easily traced through IOMS to see when the reports were added. It’s not a – I don’t believe it’s a great mystery.

Alright. But there’s a fair bit of misinformation in these reports. Would you accept that?---Now that I’ve seen it, it’s – you know, it’s not – it’s not great work with those dates on there, but as I said, I don’t think there should be a whole lot of confusion as to when the reports were created out of IOMS. That’s all recorded information.

COMMISSIONER WHITE: But one of the issues that perhaps makes it a little difficult for us is that you have produced these documents to the Commission as – and you’ve attached it to your statement as reflecting the – what they purport to be?---Mmm.

Did you not look at them or did your lawyers not go through them with you and say, “There seem to be some issues here about the dates, can you sort those things out?”?---Well, to be honest with you, if they’re – if they’re the reports that were submitted on the day, even with the typos or the incorrect information, no, I wouldn’t have changed them. That wouldn’t be right, that ......

But you can explain in your statement, you could acknowledge, “I can’t explain why these dates look inconsistent”?---And I have to say until now it was missed.

Nobody draw your attention to these oddities?---No, no one’s drawn my attention to that.

Alright, thank you---Okay.

MR O’BRIEN-HARTCHER: And there’s no CCTV footage of this, is there?---No, there wouldn’t be, no.


5

10

15

20

25

30

35

40

45

And that’s because no one thought that it should be saved; is that right?---Well, there was no police investigation, there was no – no complaint at the time. I wasn’t pursuing any external activity. So no, it wasn’t – I wasn’t saved at the time. It was really a bit of a non-event.

And part of that’s because it was classed as a non-notifiable incident, isn’t it?---No, if – if the – if I had deemed to press assault charges, then it would have been recorded. If the detainee in question had have made complaints or raised issues it would have been – likewise it would have been saved and recorded.

But conveniently none of that happened?---There was no complaint made by any Youth Justice Officer, myself or and/or .....

Given that – Sorry, I didn’t mean to interject?---Or ..... there was no complaint made, no.

Okay. I’ve got some things to put to you and then I’ll come back to that if I’ve got time---Okay.

What I’m suggesting to you, sir, what happened was this: that as per your use of force report AJ really did punch you that day?---He didn’t.

And you didn’t like it, and you and Kelleher and Zamolo took him to the ground; is that right?---No. It’s not. As I said, it was actually me that took him to the ground.

Okay. And I’m suggesting that you were angry because you’d been punched and sworn at and you stomped on AJ’s head?---I actually think that this is actually absurd. I would not stomp on a boy’s head, anyone’s head for that matter, and this is the first time that I’ve heard such an allegation and it certainly would have been reported much sooner if this had actually occurred as described in the complaint of the report.

And I’m suggesting to you that AJ was, in fact, injured and that the inaccuracies in these reports are because nobody wanted this to come to light; is that correct?---No, that’s completely incorrect.

Alright. Let’s just look at, quickly, the question of whether or not it could have been reported. Following this, AJ was taken to the BMU?---That’s correct, yes.

And in the BMU he’s only allowed to phone if an officer allows him; is that correct?---He could have made a phone call probably the following day.

Alright. Well, you would – would you have allowed him to make a phone call the following day?---Yeah, no problems, if he was calm and not being aggressive towards staff there would have been no problem with him making a phone call.

Was he calm and not aggressive towards staff?---I can’t recall the next day, I didn’t – I don’t recall seeing him, but I spoke to him directly after the incident and he’d – you know, we actually had a bit of a conversation.


5

10

15

20

25

30

35

40

45

And two days later he was taken to the adult jail; is that right?---That is correct, yes.

Okay. So there wasn’t, in fact, a chance for him to make a complaint before this happened?---He would have had full access to the Ombudsman, who had full access to the Children’s Commissioner, he would have had full access to all the entitlements that he would have had in the youth justice area, I have no shadow of doubt about it all.

Are you talking about in the adult prison?---Yeah, absolutely.

But juveniles have to be held in isolation in the adult jail, don’t they?---He was and in discussions he’d had with me is that he actually wanted to go across to the adult prison.

And that’s because of the appalling way that he was being treated in Don Dale, wasn’t it?---I don’t know what it was. He and I had a number of conversations about that. He – and I think the superintendent was probably in a much better position to answer this question than myself, but there was a lot of – a lot of work had initially gone into this particular detainee and then a lot of subsequent work when a submission was put up from the superintendent, but again he’s probably better to answer that, and my understanding was the – the magistrate for the Youth Court actually did make that decision to put him into the adult space if he had reoffended then came back in when he did reoffend and he did come back in he was expressing to me his disappointment for not going to the adult space so I can’t – I think other people are probably better to answer that.

Well, I’m suggesting that he didn’t have a chance to make a phone call and that he was conveniently transferred two days after he punched you.

COMMISSIONER WHITE: Well, there’s been a response to that question because it’s a repeated question, Mr O’Brien-Hartcher.

MR O’BRIEN-HARTCHER: Thank you, Commissioners. I would love to spend more time on my feet and ask more questions but I think I’ve used my time.

COMMISSIONER WHITE: Thank you for your gracious withdrawal. Thank you Ms Morreau.

<CROSS-EXAMINATION BY MS MORREAU [3.51 pm]

MS MORREAU: Mr Sizeland, I act for the mother of AJ. Now, do you know who I’m referring to when I say AJ?

COMMISSIONER WHITE: The same person---The same person.

.ROYAL COMMISSION 27.3.17 P-1934 J. SIZELAND XXN©Commonwealth of Australia MS MORREAU

5

10

15

20

25

30

35

40

45

MS MORREAU: The same person as in the incident that you’ve just been taken to - - -?---Yes.

- - - you’ve been taken to?---Yes.

I act for his mother---Okay.

Now, you’ve told us that you didn’t agree with the use of the BMU for behavioural management purposes but, as its name implies, it was used for those purposes during your tenure as the assistant GM?---It was, yes.

You’ve made it clear that you couldn’t pull boys out of the BMU once they were placed there but you did have a role, didn’t you, in them going in there in the first place?---I was a part of the mechanism, yes.

Yes. And is that part of this case management panel, is that the mechanism for determining that the housing would occur in the BMU once a high security rating, classification was given?---No, that’s probably a more senior decision that would include the general manager.

Can you explain how that worked?---Okay. So the classification – the classification – classification issues is supposed to be what you deem to be a progressive model of progressing people down through a number of classifications, you know, opening up opportunities and privileges and what have you.

I do understand the classification system - - -?---But the - - -

- - - is about the decisions - - -?---The decision to go into the BMU - - -

Yes?--- - - - as, I think I put in my statement, is – has to be approved by the general manager on either – on a 24 hour place. After that they could go in on a 70-something hour placement and, obviously, that’s with the – with the Commissioner. And under a directive you can house people there on offender management plans.

Alright. Now, you have said in your statement that some particular boys who you’ve put into a category called the high risk group - - -?---Yes.

- - - were there for more extended periods than these 72 hours; correct?---That’s correct yes.

So how would that occur? Would that occur practically with your knowledge?---Yes, that would occur with my knowledge.

Okay. There having been an initial decision higher up perhaps?---In consultation with the superintendent that the decision be made, yes.

Alright. And then that’s the initial decision to house in the BMU, correct?---To house on a management plan would be done with the consultation ..... yes.


5

10

15

20

25

30

35

40

45

Alright. So every offender that is placed in the BMU is on an individual management plan?---Unless they’re there for a 24 placement as of ..... or it’s an offender management plan. Yes.

So part of the management plan is put into place, what, after they’re placed there or prior to them being placed into the BMU?---It would depend on the incident, it would depend on what occurred. I think it’s different. At that time it was different in each particular case.

Right?---There were a whole range of issues that were involved with that.

But continuance in the BMU after this initial 72 hour period how would that practically happen?---It would be continuous, yes, the management plan would outline the accommodation placement, what activities would occur and what’s allowable and not allowable. Ideally, we can work through a period or a term where, you know, it’s – it can come out into general – into general – into general population, that’s the ultimate plan is to improve behaviour and bring them out, but again there was a number of serious deficiencies in this centre.

Okay. Can I just pull that back a bit, though. How would it be that someone would be permitted out of this management plan and into the general community; who would make that decision?---That would be made in consultation with the general manager.

Being Mr Caldwell?---Yes.

Okay. So a decision you’re describing by you or by this case management panel in consultation with Mr Caldwell?---No, it wouldn’t be made by the case management panel. It would be – that decision would be made by the – with the general manager from probably my position - - -

Okay?--- - - - in relation to them coming out.

So you and Mr Caldwell?---Me and Mr Caldwell. And we’d probably receive input from the – from the senior youth staff depending on who the case worker was. The case worker would definitely be consulted.

And then the decision to then keep them there post this initial 72 hours?---The same – same process.

Okay?---Yep.

And so the members of the case management panel as you’ve referred to in your statement are yourself and the case worker; is that really it?---In that particular period of time it was myself and the – the case worker but it – it evolved extensively over time to involve a lot more people.


5

10

15

20

25

30

35

40

45

Okay. Well, we know that AJ left a couple of days after this incident - - -?---Yes.

- - - you’ve been asked about, so in June 2014 left the care of Don Dale. So I’m just asking questions about up to that period?---Okay.

Okay?---Yes.

Alright. Now, he was one of these boys who fell within this high risk group; correct?---Unfortunately, yes.

Yes. And so he spent lengthy periods in the BMU, didn’t he?---He spent quite some time there prior to my starting at Don Dale and during.

And, in fact, on the day of the incident that you’ve been taken to already in questions, the precursor, if I may, to the physical interaction was that you and case manager Greg Donald were conducting a case management review with detainee AJ and advising him that he would be remaining in the management regime and would be classified as a high security rating. You remember putting that into your IOMS officers report?---That’s correct, yes.

Okay. And that was the case?---That, unfortunately, was the case, yes.

Yes. And his – he became quite upset and unhappy with that news?---That is correct, yes.

And the effect of that news, that is that he’s going to be maintained on high security, is that he – to stay in the BMU; correct?---That is correct, yes.

He didn’t want to go back to the BMU?---I think he was more annoyed with a number of things but he was certainly unhappy that he was going to remain at high security, yes.

Okay. Well your IOMS report – and you can see it if you like – but it indicates that he was instructed to return to his accommodation room and he refused to do so?---Once he became quite aggressive and noncompliant he was instructed to return to his room, yes.

Well, he started to argue and became verbally abusive, you’ve put in your report?---That is correct, yes.

Yes, and then he refused to go back to his accommodation room?---Yes, that’s correct.

And that accommodation room is in the BMU?---That is correct, yes.


5

10

15

20

25

30

35

40

45

I think you’ve then recorded that he refused to move from his seat and stated that staff would have to drag him?---That’s correct, he was – he became very threatening, yes.

Well, clearly he didn’t want to go to the BMU?---He was being very confrontational.

Do you accept that he didn’t wish to go back to the BMU?---At that point, unfortunately, his behaviour was indicating he actually wanted to have a fight with staff.

COMMISSIONER WHITE: What’s your answer, Mr Sizeland?---He didn’t want to go to the BMU? I don’t think it would have mattered at that stage. He just became extremely aggressive.

MS MORREAU: What, you mean he would have been taken to the BMU in any event for his conduct on that instance?---Not at that particular point in time, but he just became, he literally dug in and became very aggressive in relation to – in relation to his situation.

What did you mean by it didn’t matter by that point?---His behaviour, the way I was reading it, was – was that he was going to become physical, regardless of what we did or said, and that’s very consistent with the history of his behaviour in the centre for attacking staff, and high level noncompliance. He had a very, very big history of engaging physically with staff, and he’s – he – I think he made his decision that was going to be an altercation at that particular point in time. That’s how I read the incident.

So when you said in your evidence here that you didn’t think it much mattered by that point was that because the way that he was behaving was such that you would be taking him to the BMU even though he hadn’t been accommodated there?---No, I think his behaviour was that that he was going to – you know, there was going to be a physical altercation. That’s how I was reading things and I don’t – it didn’t mind that we were, you know, pleading with him, trying to talk to him, saying let’s ..... let’s just go, we don’t need to do this, and he – I think he’d made his mind up there was going to be an altercation.

I’m not asking about him, though, I’m asking about your response---Sorry.

Your – you took from that though that even if he hadn’t been housed in the BMU up to that point you were going to have to take him there because of his, as you say, increasing aggression at that point?---That might be correct, yes.

How many kids did you have that you put in this group of high risk individuals?---Up to that point I believe he was actually the only one.

At that instance?---At that point he was the only one - - -


5

10

15

20

25

30

35

40

45

Okay?--- - - - who was demonstrating very high risk behaviour.

In about June of 2014?---I believe so, yes.

Okay?---Yes, that’s correct yes.

And then you’ve talked about a group – a high risk group in about August 2014?---Yes.

How many kids were in that group?---It was about four or five.

So if we talk about your time at Don Dale, are we talking about a group of about half a dozen kids?---I think over time as people have come and gone you could say there’s probably half a dozen to eight very key high risk individuals, yes.

And were these the only one that is were on these individual plans?---During the first Don Dale, that was the – there was only half a dozen. Subsequent to us leaving Don Dale, I did not do any more management plans, period.

Okay. In – as part of your case management of these individuals, you talked about, in particular. In relation to AJ that there had been many times of physical interactions, aggressive physical interactions with staff; correct?---That’s correct, yes.

Was there ever any approach about looking at the reasons behind his physical aggression in a custodial environment – sorry, the detention environment?---I am not sure and I’m not sure if that happened on – during my time. I know the case workers would spend a lot of time speaking with him. Greg Donald was his case worker obviously and he used to spend a lot of time talking with him and engaging with him. There was - - -

To your knowledge did you personally have any knowledge when you were managing AJ on this management plan of any of the, you know, causal features to his behaviour in custody?---I couldn’t – I couldn’t answer that.

No?---The causal reasons. We’d had some, in the short time that I was there at that time we’d had some very serious incidences with him. And again, I had – I’d worked with him previously to, you know, put him in a low security unit, to engage with him. I used to spend a fair bit of time one on one talking with him. I think – and some other people would agree with me – that there did seem to be a significant shift in his, some of his behaviour when he came back into custody towards myself and towards the general manager with these high levels of aggression. I couldn’t answer the reasons why. I do suspect - - -

All I’m asking is whether there was an approach to attempt to sort of penetrate this escalation that’s occurring by looking at the causal factors and talking to him about them?---At that time, no, I couldn’t answer, I’m sorry.


5

10

15

20

25

30

35

40

45

Was there ever any psychological or psychiatric assistance given to kids that are acting up in custody?---At that point in time - - -

Yes?--- - - - there was some psychological services. It was all externalised. As we progressed with the Don Dale 2, we did have a psychologist on staff who worked very closely with the kids.

But not for AJ?---Not for AJ, no.

What about his family? Are you aware that AJ had a present and supportive mother whilst he was in custody. Were you aware of that?---No. I was not aware of his visits, no.

Is it – was it ever any – any part of attempting to manage, particularly this high risk individuals, ascertaining if they have family that could be involved in processes of making it a little bit more – I wouldn’t say easy but to try and streamline some of the processes in Don Dale?---I had done that, I guess, further down the track but in AJ’s case, no, that did not happen.

Are you referring to that matter you spoke about with Mr Callaghan where someone was on, I think, either open or low security and you spoke to their family about some of the - - -?---No, it was more some of the high risk detainees.

Okay. Alright?---I didn’t engage activities in that area, but in this person’s case he was – he appeared to me, mostly, to be agitated about the fact that he – he didn’t get what he wanted and he wanted to – he wanted to go to the adult prison.

Well, perhaps by this stage, we’re talking in June 2014, but there’s some time preceding that, and you have already told us you didn’t actually examine the reasons for his disquiet or escalating aggression in custody; correct?---I didn’t. I did speak with him on a number of occasions. I didn’t ask him directly that question.

Do you think that it would be a useful thing, as a general proposition, if there is a supportive family outside of a juvenile detention centre that they be involved and informed about problems that are occurring inside to attempt to help?---That is a – a process that does work, yes.

Even in your experience?---As I became more experienced in the role, that was something that I did do, yes.

Later on – something you learnt along the way; is that what you’re saying?---Well, familiarity with the – familiarity with the youth justice system, familiarity with the detainees and their families is something that, yeah, that did become quite helpful I found, yes.

Now, talking about – a little bit further about the reasons for some of AJ’s behavioural problems, did you become aware of any concerns of the relationship


5

10

15

20

25

30

35

40

45

breakdowns between him and some of the guards at the centre?---I wasn’t aware of any relationship breakdowns between him and the guards, no.

Okay. Did you ever hear any complaint or allegation that he had been bribed by guards to assault other detainees?---No.

Never heard that allegation?---No.

Did you hear about an allegation of that generally occurring in your centre?---No. I’ve given this some afterthought and I had dealt with a detainee through the classification process whom was giving a bit of a hard time to some of the younger boys. I regressed him up to the high area. I’m not sure if that – this is not the same person – I’m not sure if that’s the actual particular case of – I’ve heard that this – that this was going on, I’ve given that some thought but that has never come to my attention, no, and not with this particular detainee you’re speaking of.

So you’ve not heard about it in the time you were at Don Dale. Have you heard about some evidence given to the Commission that that was occurring involving AJ?---I’ve – no, I haven’t heard it in relation to AJ. No. I haven’t heard about it with AJ. Look, I’ll just leave it – I will leave it at that, sorry, I don’t know.

You did indicate some uncertainty about having - - -?---Well.

Having heard of the possibility involving someone else?---I don’t - - -

Can I ask you this question - - -?---Yeah.

- - - is it a shocking allegation to you?---Yeah, I find it extremely disappointing that – that staff might induce kids to be, you know, to – the bigger kids to pull the other kids into line. I find that terrible, especially when I’m the person down there speaking to the older detainees, the ones who are, you know, put into the low security area and I’m saying “Mate, these kids should be looking up to you, not being frightened of, what’s wrong with you man”, and I would say to them, “Look, if I get more reports of it, I’m not putting up with it, you know, you’ll be going up to that other area”, and then I sort of think to myself, was that just a bit of general schoolyard bullying going on or was it a little bit more – was there more to it than that. These are thoughts that I’ve had, obviously, well and truly after the case, but I really didn’t tolerate bullying in the centre from the bigger kids. I didn’t like it.

What about the proposition that some of those Youth Justice Officers were involved in this?---That’s the part that I find extremely disappointing and I – hasn’t ever been reported to me, and – and I – unfortunately, that’s a line of inquiry I suppose that’s going to happen through this process if that occurred.

A couple of things on the incident that you’ve been taken to. The CCTV footage, when would it be preserved? What would lead to the preservation of CCTV footage?---Either, generally if it’s a high level incident that would involve internal


5

10

15

20

25

30

35

40

45

action, so that’s action from either the Children’s Commissioner, Northern Territory Police, anything along those particular lines, we would ask for it to be stored separately.

And so who asks for the preservation, you personally?---It would go through the shift supervisor or myself.

Okay?---And we would – we would have it handed off and then handed to the appropriate investigating body.

Does the designation of incident level in the IOMS officers report has an impact on whether or not the CCTV footage is preserved?---Not necessarily all the time, no. It depends whether there’s an interested body in it.

You would require some external request?---As I said before, previously, if it was a police matter or some matter for external investigation, i.e., the Children’s Commissioner then we would store it and hand it over.

COMMISSIONER WHITE: How long is that footage kept, Mr Sizeland?---I think it was a pretty bad system. It was only kept for a number of days. It wasn’t kept for very long.

Before it was rolled over?---Yes, we had to act very quick on these sorts of things. We would – we - - -

Just a couple of days?---We would call a tech in pretty much straightaway, we would need to retrieve footage. We get somebody in immediately pretty much. So - - -

It occurs to me it’s a bit problematic, if you put a detainee in isolation or in any way unable to access making a complaint to an external person unless the complaints is actually emanating from management itself to the external provider, there is no hope of it being kept, is there?---I’m absolutely under no illusion that in this particular case he could have made a complaint if he so wished to. I’m under no illusion at all.

I’m not talking about a particular case, I’m talking in a systemic sense?---A systemic sense? In my initial evidence there was nothing that I thought was good about the entire centre in relation to the security systems.

And this is one example?---This is a very good example, actually.

Thank you.

MS MORREAU: You’re aware, of course, that AJ was taken to the adult prison a couple of days later?---Yes.

And that was at his request to the Court?---Yes.


5

10

15

20

25

30

35

40

45

And that he indicated to the Court that:

They just left me there in the back cells when I went in there –

meaning into Don Dale?---Mmm.

You were informed of this; correct, through a telephone call with his lawyer at the time of the appearance?---No, I believe that – I believe that it actually went to the general manager, that telephone call. I don’t believe I was on the – on that conference.

Okay. Would not some request, such as that, to a Court, lead you to think, “Well, maybe two days ago we had this use of force against him, we should preserve the CCTV footage of that”?---No. At that particular stage, as I said, the – the incident that occurred, you know, if it was going to be preserved would have been an assault charge coming from myself. I wasn’t pursuing any option that, I wasn’t worrying about it. I didn’t think, to be completely frank, I didn’t think a whole lot more of it.

Now, you’ve said in your statement that you have no doubt – and you’ve used similar emphatic terms in your evidence – that this would have been reported if it occurred, this allegation against you?---Yes. Absolutely.

Are you aware of other staff reporting on other staff for uses of force they think is excessive or inappropriate in your time at Don Dale?---In my time at Don Dale, let me think about that. No, I don’t believe there was but I’m under absolutely no allusion that in the exposed area that we were in at that particular point in time, and the people who were there, being the case worker, Greg Donald, that if I’d have behaved in a manner that this complaint that would have absolutely been reported and if it was witnessed by this particular person who said they witnessed it, the complaint would have gone through immediately. I’m under no – it would have – the complaint would have happened near immediately.

What I’m asking you is about why you have that level of comfort if it’s never occurred, that staff have never reported any other staff acting excessively towards detainees, in your time as the assistant GM?---Look, I don’t have any level of comfort in it at all. I’m just stating the fact that I’m not aware of staff reporting staff for issues.

Okay. If they were to do so where would they report to?---They’d report it to the general manager.

So to - - -?---To Mr Caldwell.

Mr Caldwell?---They could report to myself.


5

10

15

20

25

30

35

40

45

To you?---They could report, in some instances – there was an instance where a staff member went directly to the Professional Standards Unit. There were means and avenues for reports, yes.

And detainees who would they report to inside, other than making the calls that you’ve talked about to external agency?---Internally, they could report to the case management unit, they could put in a complaint form and they could also see the official visitor when the official visitor comes round.

Look, have you been told of the evidence from Mr Dave Ferguson that there was a reference to some guards, and I don’t know who except for one name, that’s Mr Kelleher I think, that they were Jimmy’s Boys?---Yes, I have been made aware of that.

Okay. Were you aware of that at the time?---No, I was not.

That that was a term bandied around about, at least Mr Kelleher but possibly more than one officer?---No, I was not aware of that term.

COMMISSIONER WHITE: Ms Morreau I think this has been canvassed pretty well today with this witness.

MS MORREAU: I’m sorry - - -

COMMISSIONER WHITE: If there’s anything - - -

MS MORREAU: - - - I didn’t realise he had been asked about that.

COMMISSIONER WHITE: Yes, he has. Yes.

MS MORREAU: Okay. Well, would you accept that the effect of that type of term would be – could be that there’s no point complaining to you about, say, Mr Kelleher’s actions?---Not at all. I don’t accept that for a moment, that – that someone would be wasting time bringing an issue to me – myself about any staff member.

The incident report that you’ve attached to your statement of JS10, that’s the one by Mr Donald, speaks of AJ being offered to retract some profanities that he issued towards you during this interaction outside. You can have a look at it?---Yeah, that – I actually don’t directly remember him giving the opportunity to retract it. But, yeah, I accept the report, yes.

Sorry, I’ll just get a copy of it. Sorry:

AJ directed to calm down and refrain from delivering verbal abuse, however at the offer of retracting these profanities he became more aggressive.


5

10

15

20

25

30

35

40

45

You see the passage I’m referring to? It’s in the middle of that second paragraph?---Yes, I see.

You don’t recall him being brought to task about his use of swear words?---No.

No?---No.

Was that something that occurred in the facility though?---Sorry.

That is, detainees being brought to task about the use of swear words?---Not very often. Not in my experience, no.

Because it couldn’t, in fact, be a bit provocative, couldn’t it?---What was that, a detainee wearing or a detainee being pulled up for swearing.

I’m sorry?---Sorry, I’m not following the question.

I’m putting the proposition to you that, you know, if you start pulling detainees up for using swear words that could be slightly more provocative towards them?---Depending on the – depending on the circumstances and depending on the situation. It could be provocative, yes.

COMMISSIONER WHITE: Ms Morreau, do you have very much more to ask?

MS MORREAU: No, I don’t.

COMMISSIONER WHITE: Because I think Mr Sizeland is getting a bit weary. He’s been in the witness box under cross-examination for quite a long time. If you could .....

MS MORREAU: I have one more question and that was it.

COMMISSIONER WHITE: It would be handy to bring yours to a conclusion then. Thank you.

MS MORREAU: Your report indicates that the communications towards AJ were about bringing him back to the BMU. Was there any – to your memory, any attempts to deescalate the situation verbally?---Yes, we did. We stood there and we talked to him for a bit. As I said, his body language and his demeanour became extremely aggressive and, yeah, we – that point of de-escalation was pretty much, you know, from everyone around the table trying to, “Come on, mate, don’t do this sort of thing”, so - - -

Thank you, Commissioner.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Thanks, Ms Morreau. Mr Callaghan, just so that others will be able to organise their day tomorrow, but what time – much time do we have available for the continuation of Mr Sizeland’s cross-examination?

MR CALLAGHAN: We can be accommodating. We either – the Commission can be accommodating – I know Mr Sizeland did have, or does have other commitments, I’m not sure where we’re at with that.

MR O’MAHONEY: I’m not up to speed on the latest in terms of the witness’s other commitments. I could very quickly get up to speed.

COMMISSIONER WHITE: Can you go and ask him. Thank you. Just bear in mind you don’t want it recorded.

MR O’MAHONEY: I’m grateful.

MR CALLAGHAN: I understand we have a vulnerable witness at 9.30.

COMMISSIONER WHITE: Yes. That was my understanding as well. I thought running through the cross-examination list there was probably, what, about three-quarters of an hour, do you think?

MR CALLAGHAN: If everyone kept to their estimate. I would allow an hour at least.

COMMISSIONER WHITE: And probably about a half an hour with the vulnerable witness that’s on at 9.30?

MR CALLAGHAN: Yes, although we also have to allow the changeover times.

COMMISSIONER WHITE: We do, yes.

MR CALLAGHAN: Adding that on and adding a little bit on to the estimates for cross-examinations, we’re starting to get to midday, I would have thought.

COMMISSIONER WHITE: 9.30 till 10.30 with the – let me see what Mr O’Mahoney has got - - -

MR CALLAGHAN: And there will be some re-examination or some examination as well, so that’s going to take us well and truly to midday.

COMMISSIONER WHITE: Yes, what about Mr Sizeland’s - - -

MR O’MAHONEY: His plans have changed, Commissioner, as a result of a weather event in North Queensland, so he is now at the Commission’s disposal and is happy to work in - - -


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Don’t let everyone else know that. That would not be a good plan.

MR O’MAHONEY: Well, Commissioner, I say that and I’m sure you say that in jest. I say that being very mindful of the leave that has been given and the timeframes that have been given for people to ask questions.

COMMISSIONER WHITE: Yes. Thanks, Mr O’Mahoney, well, that is helpful to know that position. I think we can indicate then, Mr Callaghan, that Mr Sizeland needn’t return before 10 o’clock tomorrow.

MR CALLAGHAN: Yes. That seems clear, Commissioner.

MR O’MAHONEY: If it please the Commission.

COMMISSIONER WHITE: So, Mr Sizeland, we’re going to have to stop now. You probably don’t mind that a bit. And we have a vulnerable witness who will be interposing closed court at 9.30 tomorrow morning. Best estimate is that that might be about half an hour, it might then we’ve got to change from closed court to open court, so that’s probably another quarter of an hour or so. So if you’re here at the court by around 10 o’clock, then you’ll be in ample time to resume?---Yes.

And we think then that you’ll probably be an hour to an hour and a half in the witness box after that. Of course, things change a bit but that’s our best estimate at this stage. Can you work around that?---Yes, Commissioner.

Thank you.

<THE WITNESS WITHDREW [4.22 pm]

COMMISSIONER WHITE: Alright then. Well, adjourn till 9.30 tomorrow, if you would.

MATTER ADJOURNED at 4.22 pm UNTIL TUESDAY, 28 MARCH 2017

.ROYAL COMMISSION 27.3.17 P-1947 ©Commonwealth of Australia

5

10

15

20

25

30

35

Index of Witness Events

JAMES SIZELAND, AFFIRMED P-1865EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-1865CROSS-EXAMINATION BY MR LAWRENCE P-1900

THE WITNESS WITHDREW P-1907

JAMES SIZELAND, ON FORMER AFFIRMATION P-1907CROSS-EXAMINATION BY MR LAWRENCE P-1908CROSS-EXAMINATION BY MR O’BRIEN-HARTCHER P-1927CROSS-EXAMINATION BY MS MORREAU P-1934

THE WITNESS WITHDREW P-1947

Index of Exhibits and MFIs


P-1865


P-1865


P-1866


P-1866

EXHIBIT #173 STATEMENT OF MR SIZELAND DATED 26/03/17

P-1866

EXHIBIT #174 SUPPLEMENTARY TENDER BUNDLE 227 P-1868

EXHIBIT #64.253 TENDER BUNDLE TAB 253 P-1885

EXHIBIT #175 SUPPLEMENTARY TENDER BUNDLE 223 P-1887

EXHIBIT #64.181 TENDER BUNDLE TAB 181 P-1892

EXHIBIT #64.184 IMPS IN TENDER BUNDLE 184 DATED 21/08 P-1893

EXHIBIT #176 USE OF FORCE REGISTER DDY.0002.0001.2804 P-1895

EXHIBIT #177 SUPPLEMENTARY TENDER BUNDLE 230 MEMORANDUM TO THE COMMISSIONER

P-1899

.ROYAL COMMISSION 27.3.17 P-1948©Commonwealth of Australia

5

Documents

childdetentionnt.royalcommission.gov.auchilddetentionnt.royalcommission.gov.au/.../Transcript-2… · Web view.ROYAL COMMISSION 27.3.17P-1868J. SIZELAND XN ©Commonwealth of AustraliaMR