Transcript 10 May 2017 Web view.ROYAL COMMISSION 10.5.17P-3700C. LAIDLER XN ©Commonwealth of AustraliaMR MORRISSEY.ROYAL COMMISSION 10.5.17P-3652J. SHARP 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-773111

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

9.25 AM, WEDNESDAY, 10 MAY 2017

Continued from 9.5.17

DAY 36

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN, MS S. McGEE and MS R. RODGER 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 and MR D. INDEVAR for Dylan VollerMR P. BOULTEN SC appears with DR P. DWYER for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears with MS G. LEWER for the Central Australian Aboriginal Legal Aid ServiceDR K. HANSCOMBE QC appears for Jared SharpMR S. O’CONNELL appears for AN and AV

.ROYAL COMMISSION 10.5.17 P-3650©Commonwealth of Australia

5

10

15

20

25

30

35

40

MR McAVOY: Good morning, Commissioners. We’re ready to resume with Mr Sharp.

COMMISSIONER WHITE: Yes. Thank you. Thanks, Mr Sharp.

<JARED SHARP, RECALLED [9.25 am]

<EXAMINATION-IN-CHIEF BY MR McAVOY

MR McAVOY: Mr Sharp, before we rose yesterday afternoon, you were describing to the Commissioners a particular youth justice group conference that you had been involved in and the importance of having community leaders and Aboriginal elders involved in the process. We will come back to that a little bit later but before we move on, I would like to ask you about the figures related to your work as they stand now. So in the period since referrals have commenced to Jesuit Social Services in January this year, there have been, I think you said yesterday 17 referrals?---That’s correct.

Of those 17 how many have been completed?---As of today about six.

Six, so the one that you spoke of yesterday afternoon, completed yesterday?---That’s correct.

And are you able to tell the Commissioners the throughput times, the time from referral to completion of the conference?---Yes. Certainly. The throughput times have varied from 24 days, which was the shortest, to 41 days. And most of them have been, say, four to five weeks, from the point of referral to the conference taking place.

And I know it’s early days yet, but do you expect that to be the norm?---I do. I think there are going to be cases where, for various reasons, the time frames get put out but I think, in most circumstances, our experience is consistent with our Victorian program where some 95 per cent of young people who are referred wish to participate and do participate in a conference. So I’ve been incredibly pleased and pleasantly surprised with the engagement of young people because that’s probably the most critical dynamic. We meet with the young person three times before we put them in that room with the victim and with other stake holder, other participates.

COMMISSIONER WHITE: What about the take-up from the victims. That also seems to us to be a bit problematic, whether they will engage or not?---From our point of view, we’ve been really fortunate, Commissioner, we’ve had amazing support from the Witness Assistance Service, which is part of the DPP, and the Witness Assistance Service for every one of our conferences at the point of referral

.ROYAL COMMISSION 10.5.17 P-3651 J. SHARP XN©Commonwealth of Australia MR McAVOY

5

10

15

20

25

30

35

40

45

from the court, we contact them and they make contact with the victim. And because they’re trained in restorative practices they are able to explain to the victim what they can reasonably expect from the process and our experience is that what we will then get a call from the Witness Assistance Service, in the overwhelming majority of cases, to say the victim is happy to participate. And so far, I think we’ve only had one conference where the victim has not participated and that was a victim who was 86 years of age who initially wanted to participate but she called me up during the process to say, you know, she was having sleepless nights and she was just so worried. So she didn’t personally attend but, again, in that case the Witness Assistance Service met with her, took a detailed statement and was able to make sure that her views, the impact of the harm she suffered was conveyed to the young person.

What about if the victim isn’t a witness but was merely a complainant, there are circumstances where police and then, ultimately, the prosecutors decided they don’t need the witness and it may just be that it’s a plea of guilty, of course, does that – the Witness Assistance Scheme extend so far?---That’s a very good - - -

I thought probably not, and there is organisations like Victims of Crime, of course, who are well-established, probably who could fill that gap, if necessary, but would that be your understanding?---That would be my understanding. So for a referral that comes to our agency, the court will identify the appropriate attendees for the conference and sometimes there may be, for one young person, maybe 15 files and the court, in its wisdom, will then select which might be the more appropriate victims, if you like, or complainants. It could be to attend the conference to really bring home to that young person the impact. Commissioner, I think, in answer to your question, we are very much guided by the court as to who they identify as the appropriate, the victims or complainants in a matter. But we can certainly revisit that issue, if it becomes clear that one else should attend.

Well, it seems that for the restoration to work, the victim has to be, in many ways, as central as the perpetrator because it is the notion that the community will be healed by this process?---Exactly.

Is it not?---Absolutely. And I think that’s, for me, the most central part of our role is ensuring that we are seen to be and are impartial in how we deal with both the young person and the victim and put just as much care into the support and the safety of the process for the victim as for the young person. And just in relation to your point, Commissioner, I was just reflecting on a conversation I had yesterday with a victim who was the victim of the crime per se but as I was speaking to them I was thinking that their employer would also be a good person because they all suffered financial impact. So we will find a way, I think, for that - - -

Extending the community reach? Yes?---Exactly.

Well, that does sound a very useful development. Thank you.


5

10

15

20

25

30

35

40

45

MR McAVOY: Just on that point, Mr Sharp, of the six conferences that have been conducted, the victims were present at how many?---Five.

So you’ve got almost a full attendance?---That’s correct. And it was really – it was that conference where we had, you know, an 86 year old victim who I think she really did wish to participate. she was very interested in what happened in the process but, for obvious reasons, it simply became not possible.

COMMISSIONER WHITE: Except that – from what you say, there was participation because she wrote out her statement?---Well, that’s exactly right.

And we understand that in some places where they – a bit further along the road with this process, that quite often a victim will choose not to come, will either send a representative or will write a statement which is read out and, in that sense, will be participatory?---Absolutely. In that particular conference, what was also really striking to me was that the police officer who attended had personally also had first contact with that victim and was then able to relate to the young person, really, the fear and devastation that she observed when she first met with the victim at that point. So certainly the impact on the victim was made crystal clear to the young person.

Thank you.

MR McAVOY: Mr Sharp, you mentioned in your statement the role of the Witness Advisory Service?---Assistance Service.

Assistance Service. Sorry. Do you accept that if the youth justice group conferencing continues to expand, as it appears it may, that that will put a drain on the resources of that service? Do you believe that they might need assistance or additional resources to keep up with demand?---I very much do. I think they do an amazing job, but they are a very small organisation. I think they only have three staff in the Witness Assistance Service for the whole of the greater Darwin region and when you think of the numbers of victims going through the court process every day, having our process then put this additional demand on their very limited capacity, I don’t think is tenable in the long-term. And I think, for the benefit that I have personally observed and heard from victims as to participating in this conference, it is absolutely critical that Witness Assistance Service receive that additional capacity.

Thank you. There is a proposal by Jesuit Social Services to train some community-based convenors?---That’s correct. So we received a small amount of money from the Department of Health and that will enable us to run a number of restorative practices training sessions in remote communities. And we have also formed as I said yesterday, with Danila Dilba a really good partnership and are forming other partnerships with local Aboriginal groups to bring into a conference process Aboriginal – senior Aboriginal people, particularly role models and mentors who will be a positive influence for a particular conference.


5

10

15

20

25

30

35

40

45

In terms of training for the community, it will be the same type of training you completed?---It will be, I think, preparatory to that. I think – what I really would try and emphasise is the level of expertise that is required of a convenor. The evaluation in Victoria that was done by KPMG of all the youth justice conferencing programs, I think the expertise of the convenor was seen as probably the most crucial ingredient to successful group conferencing processes and I think in the Northern Territory it is absolutely obvious and essential that we have a large pool of Aboriginal convenors and I think, from our point of view with our program, we have plans to involve Aboriginal people as co-convenors and from that foundation then provide further training so that Aboriginal people can become convenors who we can employ and hopefully others can employ as well.

Thank you. The attendance of the youth at the conference, is that something that the court can then take into account in sentencing?---It is. In other jurisdictions such as Victoria, the court is required to take that into account. We don’t have the same, I guess, protection for the young person. So there is a risk in the Northern Territory that a young person can participate in the conference process and not have their participation taken into account.

COMMISSIONER WHITE: Well, do you think that would be a desirable legislative amendment, Mr Sharp?---I do, Commissioner. I think with young people every step that they take towards taking responsibility and participating in processes, they should be encouraged to do that. And sometimes a young person won’t have a great deal of insight into why they want to participate in this process at the outset but simply getting them there is the way in which you can then make sure that they come face-to-face with the victim, hear the impact and that’s by which the educative process can occur for them to take responsibility.

So it would be a useful tool, wouldn’t it, trying to persuade them to participate, if you could say, “Well, this will be taken into account”?---Absolutely. And I think again it comes back on our role, being impartial within the process, we are not here to sort of fetter the court’s sentencing discretion, obviously. We just provide the court with a very detail report of what happened and the court then makes the sentencing determination as it sees fit. But I think that – a provision such as a young person having that taken into account would simply ensure that there’s consistency and a sound principle basis to why young people should participate in programs such as ours.

MR McAVOY: Apart from the fact of the motivational aspect to having the sentencing court take into account participation in group conferencing, my understanding from your statement is that the participation in the conferencing that you undertake is not an easy out

for a young person. It’s quite confrontational for them and an intensive process?---That’s absolutely correct. I mean, my experience as a lawyer representing young people in court is that more often than not they are not required to speak for themselves. They have lawyers who do that for them. They certainly are not


5

10

15

20

25

30

35

40

45

confronted with coming face-to-face with the victims of their offending. And when you see the way young people respond, it’s not unusual that you will see them visibly shaking or looking down and absolutely ashamed of themselves, or they will be asked a question and they’re simply speechless. And I recall one of the conferences we’ve done where I actually asked that of the young person about how do you compare this process to court and he said, “It’s much harder”. And this is a young person who is currently in Don Dale and who – just to get him to the conference was an incredible achievement, and in the conference he was able to verbally apologise to the victims, each of the victims, who were present. So it was amazing to see him come, not only participate but take that responsibility and develop and really achieve change, I think, through that conference process.

Thank you. Now, in this group conferencing process, Jesuit Social Services is the conference provider and then there are secondary service providers who do the follow-up work with the youth in the community or elsewhere?---Yes, that’s correct. I think in the Northern Territory, as would be well know to many, there’s a very fragmented youth justice service sector. So from our point of view, working with services where the young people have existing relationships is absolutely crucial. So we’re not going to bring in an additional service provider if that young person already has a good relationship with a particular service. So our model is very much based on that, bringing in the services, the secondary services to the young person already has those relationships with.

There is an issue that arises, though, in that Jesuit Social Services then doesn’t have necessarily an ongoing role in the case management of the youth. Is that distinction beneficial as well as problematic, I suppose?---I think it’s a bit of both, to be honest. I think, like many people would feel when they attend a conference, they simply feel, “That’s it, I’ve done what I was there to do”, but, really, that’s only part of the bigger picture. And so at a conference, a young person, as with all the people who attend, will be asked to sign an outcome plan where they’re committing to perform a number of tasks. And those tasks are under two headings; one is repairing the harm and two is staying – what they can do to stay on track for the future, to stay out of trouble for the future. So from our point of view, our program brings that process together but post conference, if I’m acting as the convenor, I’m then reliant on working with those secondary services to make sure that the young person is completing those tasks.

So your role continues post conference, in a sort of an oversight fashion, to ensure that the plans and the service providers are completed?---That’s correct.

I just wanted to - - -

COMMISSIONER WHITE: I’m sorry. Is there any reporting back to court after – at any point after you’ve had the conference?---Absolutely. I should have mentioned that, Commissioner.


5

10

15

20

25

30

35

40

45

Yes?---So at the point of referral, the court will specify two dates: one is the return date and also the date at which the report that we need to provide the court is due. And I think, again, coming into Jesuit Social Services one of the things I’ve been incredibly impressed with is the level of depth to our reports to the court. They are typically around 10 pages and they are not full of opinion of the author, but really just providing to the court the quotes – direct quotes from the participates. So that the judge can get a sense of what was actually said and what happened through each step of the process. So our reports, in answer to your question, yes, are very detailed and I think a hall mark of our program.

And when the young person is tasked with doing particular things outside of the conference, you’re including that, of course, in your report back to the court, the outcome. So you will be relying on your secondary service suppliers to convey to you how that went?---That’s correct. So, for example, the conference that took place yesterday, an outcome plan would have been developed. We will then write to the court and provide the court report and we will annex the outcome plan to that. So the court is aware of the plan. It won’t have been completed by the return date, but the court can then make a decision as to whether, you know, it should adjourn matters for a short period for the outcome plan to be completed or put the young person on an order there and then but our role will always be to ensure that that outcome plan is completed.

MR McAVOY: Mr Sharp, the reality is, though, that the performance of many of the aspects of the outcome plan might have some costs associated with it. So that the youth might commit to returning to football training and playing football and there’s a registration cost for that. Is your organisation funded to meet those costs or how are they met?---It’s a very good question and I think it goes to the broader issue – the very siloed approach within the youth justice space where often there’s no one who will take direct responsibility for all of those things and make it possible for young people to participate in activities. Our program has a brokerage bucket, if you like, attached to the funding that Territory Families is providing and that will mean on a case by case basis we can pay for things like that, such as a pair of football boots or to register a young person with their local football team or to participate in some sessions with an elder who will work one-on-one with that young person post conference, or there’s a balance choice program which is fantastic to teach the young people through physical activity to make better choices so we can fund a couple of those types of sessions. So we’ve built that into our funding, our budget, because we are fully cognisant of those gaps in the youth justice system here.

Thank you. I just want to take you briefly to the recommendations that you’ve included in your statement, and at the page 74 of Mr Sharp’s statement, recommendation 10 speaks of the introduction of the President of the Children’s Court who has extended power to deal with all but the most serious criminal matters. Is that in part an option that has been influenced by your observations from New Zealand?---It is, as well as other jurisdictions. I think the Northern Territory is probably anomalous in not having a structure like this and I think it would just make a lot of sense to ensure that our jurisdiction is specialised and that young people can


5

10

15

20

25

30

35

40

45

be dealt with in a trauma-informed manner that recognises ..... brain development and I think a President of the Children’s Court with extended powers would very much help to achieve that.

COMMISSIONER WHITE: Is the case not, Mr Sharp, that the Northern Territory is, in fact, the only jurisdiction within Australia that doesn’t have such a position and a dedicated court?---That’s my understanding, Commissioner, yes.

MR McAVOY: Mr Sharp, I would just like you to look now at recommendation number 15. It’s on the next page. Recommendation number 15 goes to the use of lay advocates in the Northern Territory and also financial remuneration for elders who play roles in the court processes. Can you just expand on the use of lay advocates, in particular?---Certainly. So lay advocates is an initiative which was introduced in New Zealand as part of the Care and Protection of Children Act or Children and Young Persons Act in New Zealand and they perform a vital role for Maori young people, for example, Maori young people, who would otherwise – a court that’s dealing with that young person, wouldn’t have the cultural expertise to make sure that they’re aware of the background of that young person, the family of that young person, and the lay advocate is a person who the court appoints who is a senior person, who is from that young person’s community, who can make sure that the court is apprised of all of that information about who this young person is, who their family is, where their community is from, background issues that the court would otherwise not be aware of. I think it turns on its head, this presumption that we have in the Northern Territory, that our judiciary have all of this information already and don’t need it. Whereas I think it’s quite the reverse. We have to make sure that our judiciary can make the most expert decisions and informed decisions and be provided with this information.

Thank you.

COMMISSIONER WHITE: Sometimes it’s – where the child is under a child protection order, I think, from our understanding, there has been an assumption that the caseworker in child protection will provide this information to the court, but you’ve got plenty to evidence to suggest that at least a very stretched workforce just can’t do – play this role and comes at it from a different perspective; would that be your understanding?---That would certainly be my understanding and, I think, again, I compare the Northern Territory to other jurisdictions like Victoria where you have VACCA, and you have some level of rigour that gets applied to the statutory organisation to ensure that the voice of that young person, that their culture, their community, their identity is brought out through the court process which I just don’t think happens here.

MR McAVOY: If you can turn now to recommendation number 22, which is on page 76. Recommendation number 22 goes to section 50 of the Youth Justice Act and it – you’re suggesting an amendment to prevent media identifying a child accused or any witness involved in a Children’s Court case. I take it from your extensive work in the juvenile justice sector that you have some view of the effect of


5

10

15

20

25

30

35

40

45

being named in the media upon young offenders?---Absolutely. I’ve had clients who have been in the situation and it’s entirely negative. It is stigmatising, it’s damaging that to person’s prospects of rehabilitation, in a small community like the Northern Territory generally or Darwin that person will always then be known by their involvement. So it’s totally counterproductive and I think it just should not play any part in the way young people are dealt with for them to be named and shamed.

I just draw your attention finally to – I don’t want the operator to go to each of these recommendations, but there’s a recommendation 9 nine, recommendation 27 and recommendation 39, which all go to the need for quick response conferencing or diversionary options for young people. What’s the import of referring to it being a quick response?---Look, I think to take one step back, if I may, my Churchill experience showed me the New Zealand model in action. It’s a model that’s founded on restorative justice and I think that’s where the Northern Territory needs to move to. For processes like section 84 of the Youth Justice Act that does need to be a very intensive lengthy process. But in other circumstances and I’m thinking of situations like incident that occur at school or in out-of-home care or in youth detention, those are the circumstances where a quick response is needed to deescalate a situation to repair the relationships between the young people and the workers who are working with them. And that can be done, there are certainly plenty of models around Australia and internationally where quick response conferences can be brought together and to great effect. So I think we simply need to move system-wide to embrace restorative approaches rather than punitive approaches for children.

And I apologise, the recommendations that you’ve made, if read in full, would go to those particular scenarios. So they’re my questions of this witness, Commissioners. I understand there’s cross-examination from Ms Graham on behalf of CAALAS.

<CROSS-EXAMINATION BY MS GRAHAM

MS GRAHAM: Mr Sharp, one of the particular aspects that you recommended as having – the importance of having a specialist Youth Court and, in your mind, does that involve not only having specialist practitioners like the magistrate or judge, the prosecutors, the defence lawyers and so on but also extend to having a specialist and separate facilities for the court?---Very much so. And I think that was at the heart of the move in Darwin to have a separate court for children was to recognise all of the damaging impacts of having children in the same cell area as adults or in the same waiting area at court as adults. If we want to have a child-specific approach to dealing with young people, we simply have to move young people to a separate court area. And I think in Darwin it’s a terrific example where the court was purposely designed with children in mind. So that even the layout of the court is child appropriate.

Are you in a position either from your experience in the Northern Territory or elsewhere to comment on the impact of having a specialist Youth Court on the

.ROYAL COMMISSION 10.5.17 P-3658 J. SHARP XXN©Commonwealth of Australia MS GRAHAM

5

10

15

20

25

30

35

40

45

likelihood of children being refused bail or receiving detention as a sentence outcome?---Yes. I know from my own experience when I was working at NAAJA and contact I had with some experts in Tasmania, what they did there was they developed an intensive list and you had one sitting magistrate who sat in the Children’s Court with that intensive list. So the children who were cycling through the court with regularity would come back before that magistrate, who knew that young person, who knew their background issues and had, having all of that knowledge, could make the most informed decisions. And I don’t think it’s any surprise that with fantastic NGO providing bail support services in Tasmania there has been an incredible decline in the numbers of young people on remand. So I think that’s something we should certainly consider as well.

So to have a successful specialist Youth Court, you need to have those wraparound services that can be available to the decision-maker so that they can make the best decision about bail or about a sentence option; is that the case?---Absolutely. I think that’s what’s happened in Darwin. We’ve had a specialist set of judges who sit regularly in the Children’s Court and then we’ve had a number of agencies who base their services at court. So the judges can then bring those services in as appropriate for the young person.

In your role at Jesuit Social Services, do I understand that the pre-sentence conferencing that you’re running is exclusive to the Darwin and Palmerston area?---That’s correct.

Do you know whether there are any plans for your service to be made available in Central Australia, say in Alice Springs or Tennant Creek?---At the moment, we’ve only been provided the funding for Darwin and Palmerston. So we would very much like to expand our services across the whole of the Northern Territory. But obviously, that’s funding dependent.

Commissioners, I discussed with Senior Counsel Assisting one other topic that I would like to cover which is the Gladue reports. It will only take a couple of minutes.

MR McAVOY: No objection.

COMMISSIONER WHITE: Thank you. For those who aren’t familiar, if you’re going to raise that topic, it might be worthwhile explaining the name or getting Mr Sharp to explain that it comes from a name of a case.

MS GRAHAM: Yes, indeed.

COMMISSIONER WHITE: Otherwise people might think it’s some mysterious North American Indian name.

MS GRAHAM: Indeed. Perhaps if we could have on the screen the report of LV, please. Whilst that is being done, Mr Sharp, perhaps you could give a little bit of background about what a Gladue report is?---Yes, certainly. A report such as a


5

10

15

20

25

30

35

40

45

Gladue report comes from the case of Gladue before the Supreme Court of Canada and Gladue was the defendant in that case. And really, that case set the foundations for a very specialist approach for how Aboriginal people are dealt with in Canadian courts. It’s said that the Canadian system needed to move to a more culturally appropriate way, which included things like Gladue reports and other restorative processes. So a Gladue report is ordered by the court as an alternative to a conventional pre-sentence report and it has a very different focus. It looks at the background of the defendant in great detail. So a report such as this one on the screen would probably run to something like 40 pages. It provides enormous detail for the court about background issues, such as in Canada residential schools or stolen generation issues that that defendant may have experienced, or the family may have experienced, about that person’s home community, about trauma that they’ve experienced and potential options by way of healing processes for that person to participate in.

So perhaps we could go to page 30 of that report, please. And here we see the end of the report where the recommendations about options come in and there’s a range of different options posed, directed towards the rehabilitation and therapeutic aspects that the court might entertain when crafting a sentence. Is this kind of pre-sentence reporting something that you would like to see in the Northern Territory?---Very much so. And I think this is an example, as is, in my view, the New Zealand system, of a bicultural approach to justice. It is a way of working in an appropriate way with Aboriginal people and I think it’s definitely – whether in every particular case you need a Gladue report or a community justice group where elders can verbally inform the court of options such as this, I think it’s the future for the Northern Territory and it’s our opportunity to lead the country in how we can do better as a justice system for Aboriginal people.

Thank you, Commissioners. I have made available to the Commission three examples of Gladue reports and I just wonder whether I might Senior Counsel to tender those.

COMMISSIONER WHITE: Yes, thank you. And thank you for the positional element of your questioning.

MS GRAHAM: I’m sorry, Commissioner?

COMMISSIONER WHITE: I was just praising you for extra time, Ms Graham. That’s so unusual I thought you might have stopped to listen. Thanks, Mr McAvoy.

MR McAVOY: Thank you, Commissioner. There’s nothing arising. I do have some documents to tender but I will, for the purpose of the record, indicate that the witness, Lisa Coon, is represented by Ms Kothrakis. Leave was granted to cross-examine in the event that and certain matters have arisen and I’ve been informed by Ms Kothrakis that that didn’t occur and she doesn’t wish to cross-examine Mr Sharp.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Thank you. Will you tender then those Gladue reports?

MR McAVOY: There’s a few documents to tender.

COMMISSIONER WHITE: Dr Hanscombe, do you have any questions that you want to ask Mr Sharp.

DR HANSCOMBE: I don’t have any questions, thank you. I was just trying to indicate to Senior Counsel Assisting that counsel for the Northern Territory Government has the matter.

MR JACOBI: Sorry, Commissioners, I don’t have a question, I want to indicate some evidence was given with respect to the Witness Assistance Service of the DPP, which, of course, is part of the Northern Territory Government. I just wanted to inform the Commission that a statement of Mr Bill Munro is before - - -

COMMISSIONER WHITE: It’s a bit hard to hear you, Mr Jacobi.

MR JACOBI: Sorry. There is a statement of Mr Munro that has been tendered before the Commission and at paragraph 5 addresses the staffing complement of the DPP in Darwin as it then stood. I can also inform the Commission that the annual report of the DPP 2015/16 at pages 45 to 47 addresses the staffing FTEs of the DPP ..... service and addresses the services it provides. May it please the Commission.

COMMISSIONER WHITE: Yes. Thanks, Mr Jacobi. That’s helpful.

MR McAVOY: Thank you, Commissioner. The first matter is a statement of Mr Jared Sharp dated 21 March 2017. It’s a responsive statement to other matters which have arisen and it’s not been the subject of evidence today. Mr Sharp, do you recognise the document on the screen?---Yes, I do.

Thank you. And if you go to the last page, you see that that’s your signature?---Yes, it is.

And dated 21 March?---Yes.

The contents of that statement are true and correct to the best of your knowledge?---Yes, they are.

COMMISSIONER WHITE: That will be exhibit 356.

EXHIBIT #356 STATEMENT OF JARED SHARP DATED 21/03/2017


5

10

15

20

25

30

35

40

45

MR McAVOY: Commissioners, I also will, for the sake of completeness, tender the practice direction number 2 of 2016. It was referred to in evidence, and it has been loaded into the system.

COMMISSIONER WHITE: That is the practice, not our practice direction but it’s the practice direction - - -

MR McAVOY: Of the Youth Justice Court

COMMISSIONER WHITE: Yes, thank you. I was wondering why that was necessary. So it can be exhibit 357.

EXHIBIT #357 PRACTICE DIRECTION NUMBER 2 OF 2016

MR McAVOY: And there are three Gladue reports referred to by Ms Graham in evidence, which have been loaded in the system, and I will seek to tender those.

COMMISSIONER WHITE: Those three reports, exhibit 358.

EXHIBIT #358 THREE GLADUE REPORTS

MR McAVOY: That concludes the evidence of this witness, Commissioner.

COMMISSIONER WHITE: Thank you very much, Mr Sharp, particularly for your very lengthy detailed and helpful statement. Many matters are contained in it, of course, that haven’t been canvassed in your public evidence and thank you for the recommendations that you have appended to your statement, which will give us much assistance?---No problem. Thank you, Commissioner.

<THE WITNESS WITHDREW [10.03 am]

DR HANSCOMBE: May I be excused?

COMMISSIONER WHITE: Yes. Thank you, Ms Hanscombe.

DR HANSCOMBE: If the Commission pleases.

MR McAVOY: Commissioner, I understand Mr Morrissey is to take the helm.

COMMISSIONER WHITE: Thank you. Thanks, Mr McAvoy.

.ROYAL COMMISSION 10.5.17 P-3662 ©Commonwealth of Australia

5

10

15

20

25

30

35

40

45

MR MORRISSEY: Good morning, Commissioners. I call Ian Lea.

COMMISSIONER WHITE: Thanks, Mr Morrissey.

<IAN LEA, AFFIRMED [10.05 am]

<CROSS-EXAMINATION BY MR MORRISSEY

MR MORRISSEY: Thanks, Commissioner.

Mr Lea, would you state your full name, please?---Ian Lea.

What is your occupation?---I’m a Superintendent of Police and I’m currently responsible for the ..... Judicial Services Division.

Thank you very much. And did you prepare a statement in relation to this matter dated 5 May 2017?---I did.

With various annexures to it. Did you – have you had a chance to look at that statement for the purposes of today’s proceeding?---I have.

And what do you say as to the truth and correctness of the statement?---To the best of my knowledge, it’s true and correct. I have made one amendment.

Yes, of course. Would you spell that out, please?---It was in relation to paragraph 109 of my original statement.

COMMISSIONER WHITE: 109, was that?

MR MORRISSEY: Yes.

THE WITNESS: That’s correct.

COMMISSIONER WHITE: Yes. Thank you. Just turn that up. Yes?---In that statement, I stated that Community Corrections doesn’t monitor compliance with bail conditions. That’s clearly incorrect and they do have a role in that space.

So how would you like that to be expressed then, Superintendent?---I have a supplementary statement.

MR JACOBI: I apologise, we recognised the error this morning. We had a supplementary statement prepared and it’s only just been brought to court. The witness has, as I understand it, the only copy, in fact, I do not have a copy, and perhaps if we could arrange to have that copied. I apologise for that.

.ROYAL COMMISSION 10.5.17 P-3663 I. LEA XXN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Yes, yes - - -

MR MORRISSEY: Perhaps it would be quickest if I just had a quick look at it. It may be that I’m content to tender it straightaway.

COMMISSIONER WHITE: Yes. I would have thought so.

MR JACOBI: I’ve just been informed the witness has copies.

COMMISSIONER WHITE: Well, could you get – could you get the copies, please. Thank you. Give one to Mr Morrissey and one ..... helpful. And if you could just get one for us, thank you. Have you got an extra one there, Superintendent? Just one more we will need up here. It doesn’t need to be signed, we just want to look at the text. Thank you.

MR MORRISSEY: As you read that, Commissioners, can I indicate I have no difficulty with that being tendered along with the statement as an addendum to the statement, simply - - -

COMMISSIONER WHITE: Yes. Make it part of the statement, do you think?

MR MORRISSEY: Yes.

COMMISSIONER WHITE: Thank you.

MR MORRISSEY: Yes, I agree. So I tender the statement with the addendum.

COMMISSIONER WHITE: Yes. The exhibit plus the addendum of today, 10 May, is exhibit 359.

EXHIBIT #359 STATEMENT OF IAN LEA AND ADDENDUM DATED 10/05/2017

MR MORRISSEY: Okay. Thanks very much. Mr Lea, you’ve given a statement concerning policies and practices, to some extent, of various steps along the way in the process of investigation diversion and warnings, charge – sorry, arrest and summons and charge, perhaps in some respects the holding practices of police, and issues relating to bail and some further issues to that. And perhaps if I could just go through those step-by-step and you could speak to those. Could I turn, first of all, to the question of charge, or charge and summons – again, feel free – you may just look through your notes and raise as you see fit. The matters that bear upon the decision to arrest or to proceed by way of summons, can you explain how those are explained to junior police when they commence their operations?---During the training – at the training college there’s a lot of emphasis put on the considerations that officers must make as to whether they arrest in the first instance. It’s called the carps principles


5

10

15

20

25

30

35

40

45

and they’re in our general order and just reflects the common law principles whether they’re going to reoffend, whether they’re going to appear in court for a number of other matters, and that’s reinforced during training and in service training and it’s regularly examined during promotional exams.

Just on that question, are there operational reasons why, as a matter of general policy, police will be directed to prefer the approach of charging, as opposed to - - -

COMMISSIONER WHITE: Arrest and charge, is that – sorry.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: Yes.

MR MORRISSEY: I’m sorry, pardon me. Yes. I should ..... that. Yes. So for operational reasons, is it – are there sometimes directives or sometimes a policy adopted that in a particular area of crime or a particular region of the Northern Territory arrest and charge rather than summons will be the preferred approach?---I think in some of the task forces they do take that approach. It is particularly when dealing with high volume of crime. I mean that’s for the initial arrest. So, for example, if there’s a crime series with a number of offenders, they may all be arrested and then held under provisions of 137(2) for the purposes of investigation. That’s not necessarily proceedings charge. So in some instances, say, if there’s a group of five, some might proceed to be charged, bail refused some might go directly to diversion.

Yes?---So it depends on the mix of offences. So if you’ve got fresh offenders, first time offenders, the likelihood is that they will be referred straight to diversion. If you have got someone with a long history of serious offences then go along the charge, refuse bail, perhaps remand.

I think that’s in accordance with the order as well, but just – I’m really asking about the situations where you get a variation and you’ve mentioned that that may occur within the task forces. Let me ask you a general question about that: are you the appropriate person to whom to direct questions about task forces in general or is that a higher level than what you deal with?---That’s probably more of a higher level, the internal task force policies.

Alright. Well, perhaps I will park that question for another occasion. But aside from the task force situation, are there other situations where – and I think you’ve just adverted to one which I will explore – other situations where it may be that notwithstanding that a person is a first time or an early time offender, that they may find themselves subject to the arrest and charge process rather than summons. And one that you just mentioned is a situation where you have a group of offenders, and let’s say that you have a situation where you have, I will give you a concrete situation, five or six young persons are causing offences and mischief of various sorts as a closed shop in a shopping centre, for example. You come along, they’re


5

10

15

20

25

30

35

40

45

not known to police but at least there’s reasons to think that offences might have been committed. So is that a situation where it might be that an arrest will proceed and – it will more readily proceed by way of arrest than by summons?---It’s going to dependent on the circumstances. So first they’re going to have to have the belief on reasonable grounds so it’s more than just a mere suspicion that offences have been ..... and linking the specific individuals in that group to the offence. So it may be that there’s enough there CCTV footage and the seriousness of the offending that they are all bundled up and brought in for the purpose of further investigation. Then we come back to that scenario of sorting out whether they should be charged or not.

But it’s more likely that they will be brought in if there’s a group where you have got a reasonable belief and you’ve got a basis. But where there’s a group, notwithstanding that they may be first time or at least early time .....?---If there’s – where’s still a need for further investigation to exactly – sort out exactly who has done what.

Yes. Alright. Well, thank you for that. Now, could I just turn to the issue – some issues arising from eligibility for diversion and you’re familiar in terms of – and perhaps I will use that term in a general sense as encompassing the warnings that come earlier in the cascade, but also extending to section 39 diversion and/or indeed conferences following it. Now, you set out in your statement, at some length, direct quotes from the order and I wanted to take you to a couple of those, if I could. You have annexed to your statement, at annexure number 8, the youth general order; is that correct?---Sorry, can you tell me which paragraph we’re at?

I was going to take you to 61?---Okay.

That’s where the specific question is going, so I will come to that?---Yes.

Officers considering whether or not to give a warning, whether verbal or written, have a discretion as to whether to proceed that way; is that correct?---That’s correct.

Now there are some statutory limits on when they can do that, obviously, but once those statutory limits are found not to apply, there remains a discretion and I wanted to ask you about that at paragraph 61. Here, you said – and this is in respect to written warnings, but the issue arises in other contexts too:

It is not appropriate to give a written warning for offences that the community regards as more serious in nature such as unlawful entry, stealing or unlawful use of a motor vehicle.

Now, can you explain, first of all, where does the term, the phrase:

The community regards as more serious in nature.

Where does that come from?---Well, it comes from the actual policy document itself, but I think the origins are – we’re having to balance our community expectations


5

10

15

20

25

30

35

40

45

against the requirements under the Act. And so all these things are a balance depending on the ..... some of our people about getting that balance than others.

Yes. Well, I – I’m not – yes, I will get to the – some question of how that’s done on the beat, just some structural issues first, if I may. So does – that does not have a specific statutory basis, does it, the community regards as more – well, offences that the community regards as more serious in nature?---No.

That’s really a policy-based qualification on the statute, which is imposed under the order, in effect?---Yes. And I think under the role of the officer constable - - -

Yes?--- - - - which is sort of - - -

Would you just explain that a bit further?---Section 5 of the Police Administration Act has – outlines – and I’m a bit rusty on this - - -

That’s okay?--- - - - five points that are the role of police officers and community safety is one of those.

Yes. Alright. Thank you for that. Now, to come back to the phrase itself:

Offences that the community regards.

Now, can I just drill down on a couple of the terms there, as best you can, by “community”, what did you understand the term “community” to refer to; does that refer to the community at large, does it refer to – who do you think it refers to?---My interpretation it’s the general public of the area where the offending was occurring.

Does that community include the community from which the suspect or the alleged offender comes from?---I think it’s a community where the offending occurs. So you’ve got offences being – occurring in Darwin and the offender is from outside of Darwin, and so ..... and then the boarder Northern Territory community.

Yes?---So I don’t think you can base it on that part of it on the origins of the offender.

To what does a police officer, who is considering this issue, turn to ascertain what the community regards as serious, how does a young constable know that; are there documents they can refer to or - - -

COMMISSIONER WHITE: Well, there’s a list, isn’t there, that they can refer to?---There’s a list of serious offences in the Youth Justice Regulations describing serious offences - - -

MR MORRISSEY: Yes?--- - - - and so they relate – that list relates directly to section 39 of the Youth Justice Act.


5

10

15

20

25

30

35

40

45

Yes?---But, in general, I think their training is infused with those considerations about trying to get that balance right of whether you need to take action, the need for tolerance, the expectation that we look out for police legitimacy.

Yes. Just picking up on what the learned Commissioner just asked you there, do you equate the serious offences in that list to the serious offences to this phrase:

Offences that the community regards as more serious.

Would you say those two – obviously, there’s going to be some overlap, would you say they’re coterminous or they’re the same?---They’re parallel. I can add to that, perhaps, that within those serious offences there is a grade – for example, some assaults are less serious than other assaults.

COMMISSIONER WHITE: Yes. You might just have a push as opposed to a punch - - -?---That’s correct.

- - - for example, that sort of thing.

MR MORRISSEY: Yes. And just in terms of that discretion, is the purpose of that discretion, is the reason for having it, to enable the police officer on the spot to make an appropriate decision taking into account all of the circumstances?---Yes. I think it just reflects the ..... principles of which - - -

Alright?--- - - - are not here but we can supply them.

Yes. Okay. Now, I’m sorry to harp on it, it’s just – simply, it’s an issue that arises with respect to discretion at a number of points, and since this is the first one, I’m just going to – so as far as education goes with exercising discretions like that, you’ve indicated that there’s – it’s infused in the training at the college, what sort of refresher training – you’ve mentioned that it occurs when promotion is being sort, but apart from that community standards may change and various matters may come in, depending on leadership from the government or other social factors that are occurring at the time. So how – what sort of guidance is there available to constables who are having to enforce this?---Each of the major centres has what’s termed as “command training”, it’s on a five week cycle so they can get all the operational members coming ..... training, and that training is based around topics of concern at the time.

Yes?---So it may be on a police powers refresher.

Yes. So in the event that – I’m not suggesting that it would ..... anything the Commission might say or the Northern Territory Police might do, but in the event that it was thought that there needed to be some training in that space, in administering the – or in exercising the discretion whether or not to allow warnings or other discretions, how would such training be delivered? How might you – if it was seen that a protocol should be acted upon or a new approach should be taken,


5

10

15

20

25

30

35

40

45

how would that be delivered in practical terms to the constables? Through such line training? Is that appropriate .....?---Through that in-service training. The difficulty with that, of course, is ..... we do have online training. For example, we have a custody package that is online and that’s an annual requirement. It depends on the mix but, in general, the approach would be go to Police College and see if they can develop a package and then it’s rolled out across the Territory.

Alright. Thank you for that. Now, just – sorry – just a second, just excuse me. Sorry. Just perhaps if – just finally on that topic, you’ve indicated, without naming any names or pointing to examples, that there may be some officers who are better at it than others. Just in terms of where you see your room for improvement, what have you noticed and what has been done about it? And, again, I’m not asking for specific names to be given, but you said some are better than others. So - - -?---I know that my office – because I have judicial operations who later charges and also youth diversion people will constantly feedback to operational members in individual instances, and I understand it’s the same practice in Alice Springs from Prosecutions. And ideally where we’ve got active supervisors, that that should be – they should be monitoring that as well.

Could I just turn to some specific exclusions, if you like, there seems to be an exclusion of – under the general order that a written warning is expressly prohibited for offences where the properties of value are more than $100. Could you just ask you: is that – that would include a pair of Nike shoes or - - -?---Yes. And I think – it’s problematic where we actually attach the value to it - - -

Yes?--- - - - because it’s – it’s a little bit like cars, if – someone’s Porsche is no more value than someone’s Hyundai - - -

Yes?--- - - - depending on the circumstances, but also it is – I admit it is a dated document. So it’s a 2007 document. So - - -

So that’s one of the issues specifying amounts or being – coming to particular?---Yes.

But I take it you, subject to proper education, you’re happy with the existence of the discretion and you prefer to see it flexible and not constrained by things such as a $100 value?---Absolutely.

Thank you for that. Now, if I could turn to the issue, under the general order it’s said – and this is at paragraph 48 of the general order, if you need to go to it, that’s fine, just tell us, but it does provide there that only in exceptional circumstances should a youth be given more than two written warnings and not more than one for the same offence. Now, once again, appreciating the general spirit of that, nevertheless there will be – do you find – well, would you say that the exceptional circumstances limit is too rigid?---Written directly in policy, yes, but the reality is, in many cases, further versions are offered by the two diversion units because they will have a look at the offending in their totality.


5

10

15

20

25

30

35

40

45

Yes?---The difficulty there is that people outside aren’t aware because the number of diversions someone has had – an individual has had isn’t recorded unless they eventually make it to court. So then that information becomes available to lawyers, etcetera.

Do you find – yes – and, in fact, I’m really at a stage before we get to court though, but that’s useful information. Thanks. Could I just explore that a little bit, do you feel that the exceptional circumstances limit is not, in fact, proposing, in a practical sense, a burden, or do you think that in some cases it might?---Look, I’m – I think in some cases it might be, because it implies a lack of flexibility and we should be as flexible as we could, in fact. That’s - - -

Yes. Alright. Thank you for that. There are a number of statutory exclusions, turning to section 39, diversion, there are a number of statutory exclusions, turning to section 39 diversion, there are a number of statutory exclusions that you’re aware of there, do you see any value in persisting with the exclusion of traffic offences from section 39 diversion?---Not – well, not all traffic offences. I mean, there are more serious traffic offences which, for an adult, is immediate offence, for example, your drink-drivings and dangerous driving, etcetera, so putting those to the side.

Yes?---Minor traffic offences, and I gave an example recently, that if somewhere where I would consider cautioning an adult, why should that be a mandatory exclusion for a youth.

I must say, my notes failed me here but I’m tolerably clear, I recall it correctly, at one point there was reference, as a broad guideline, to – as a touchstone that you might consider reference for section 39 in situations where you might also consider charging by summons, in other words, the mode of charge, if you like, and the procedure might be a guide to whether or not you were favourably disposed to a section 39. Now, first of all, am I completely inaccurate about that? It was a question I wanted to ask, but I just - - -?---I don’t recall it being in there, but I’m happy to - - -

No. Leave aside if you – no, that’s alright. Don’t – don’t – you don’t have to adopt or talk about my .....

COMMISSIONER WHITE: Since you’ve raised the issue of traffic offending, is there a diversion to safer driving practices school or program?---We have had diversions for older youth to driving school. So for drive unlicensed. It’s problematic when it’s a 12 year old driving - - -

It is a bit, isn’t it?--- - - - and what you do in that space. But certainly we’ve got gone down that road and I know – I understand that Judge Oliver has also expressed interest in identifying a number of avenues where youth can be referred to.

Yes. And, of course, there’s so many driving unlicensed, there is some merit, surely, in enabling them to actually get a licence. In other words, go through a process of


5

10

15

20

25

30

35

40

45

driver skills so that they could apply for their licence and then drive lawfully?---We have had some very involved police officers in remote communities as a remedy to many drive unlicensed and introduce driving courses and that ensuring as many people as possible get a licence.

That’s a very positive diversion, isn’t it, or even in it’s not a diversion, just a program that offer into a community where everyone needs to drive because they’re so isolated?---Correct.

Alright. Thank you.

MR MORRISSEY: Yes. Sorry. Could I just turn to some issues of the situation for youths who have come into custody. First, could I address the issue of – or ask you to address the issue of custody notification. Now, it has been identified as a genuine issue in the past, although there have been some, perhaps, ad hoc arrangements in various places. In general terms, the inconvenience caused both for police and for the young person themselves in terms of accessing their responsible adult or the department or Territory Families and also their lawyers, has been noted. Now, what can you say that your approach to that and if there was to be – whether you support some species of custody notification, whether there’s anything in train at the moment and what it might look like?---Okay. We do have a requirement with youths to contact legal advice, allow them to contact a legal practitioner. So that – my understanding of that offer is invariably made but quite often not taken up.

May I pause there and interpret, I don’t want to stop and come back to this - - -?---Yes.

- - - but just on that topic, when is that offer made customarily? We’ve heard that it’s made during the electronic record of interview and we’ve seen that done, obviously, and it’s a requirement, but is that done upon admission to the watch-house or wherever it may be that the young person is taken?---There is a point where we issue what we call a section 140 caution. So it has the words “standard caution” in it, but also advice that they may contact somebody. We don’t actually specify a lawyer at that point, but in relation to youth they should be advised before any – they’re involved in any part of the investigation.

Just on that topic, and it’s not a criticism but it’s a matter to raise, the warning or the advice, if you like, under section 140 that’s given, is often administered to a kid who may be substance affected and, at any event, may be in that somewhat shocked state, rightly or wrongly, of being placed under arrest and brought along. So that – the warning at that point that they may have a right to contact someone is not – you obviously need to do more than that, which you do subsequently?---Yes. I mean – and my view is that if a person is affected at all, including adults, that 140 should be repeated at a later time.

Alright. Now, I cut in there just to explain what happened, so - - -?---Yes.


5

10

15

20

25

30

35

40

45

- - - please proceed, so you said there’s a duty on police to notify lawyers but, yes, go on?---But only on the request of the individual.

Yes. But now we’re speaking about custody notification more generally and a thorough going scheme. So what’s your – so there is no – is there such a thing in place at the moment and what is coming, as far as you understand?---Okay. Well, we do have a protocol with CAALAS. Until yesterday I thought we had one with NAAJA but it was pointed out here it wasn’t, but it’s written in the general order that for Indigenous people that we should offer them the opportunity to contact relevant Legal Aid agencies, so ..... custody of general order. But more broadly, Senator Scuillion, late last year wrote to the Northern Territory Government offering to fund a custody notification service, similar to the custody notification service they have in New South Wales, which consists of a number of lawyers operating over Redfern that are available 24/7 and it is mandatory under the New South Wales legislation for that contact to be made when an Indigenous person comes into custody.

Could you say a little more to the Commissioners about that offer, as you understand it?---So he’s made the offer to all jurisdictions to fund a custody notification service. So my understanding about the matter is now with the Attorney-Generals, police have indicated that we will happily go along with the custody notification service, if necessary, having pointed out the difficulty for some of our clients to speak to anybody when they first come into our custody, particularly if they’re seriously affected by substances.

So police have indicated a cooperative attitude to the institution, how would it be delivered? Now, just in practical terms, obviously. there are various sides to that, there’s – for example, NAAJA would need to have their arrangements in place and are prepared to, but how would the police deal with that by of training, advising of your staff, advising of officers and making provision to do that?---I think the training part would be quite simple because it’s no different now to what we do to allow someone to contact a solicitor, it just would be happening more often. Where difficulties might arise is if – if it’s a busy period in a watch-house and we have a requirement to – if there are time constraints around it and there are time constraints around a lot of the things we do, you would hope for some flexibility in that space - - -

Yes?--- - - - but with the contact actually made as desired by the individual.

At this point, are you able to indicate to the Commissioners, have you had any – is there any indication from the Attorney-General’s Department as to when that might – there might be – there might be an answer from Attorney-Generals as to when and how?---I haven’t heard anything for a couple of months. At that point, NT Attorney-Generals were talking with Senator Scuillion’s office and perhaps someone else from the Commonwealth Government and I think that’s just a process in training.

It may assist for the future, so I would ask you the question: in terms of rolling something out, are there specific Northern Territory issues that you think would need


5

10

15

20

25

30

35

40

45

to be addressed from the police point of view in such a scheme?---At the moment, section 135 of the Police Administration Act says we may supply details of a person in custody and make contact, but only with permission of that person in custody, so – whereas as I said in New South Wales it’s mandatory across the board, I don’t know how we would act – how they would deal with that part of it.

There may be a need for some machinery changes to legislation of that nature?---Perhaps.

Yes. Alright.

COMMISSIONER WHITE: Is that in the New South Wales equivalent of your Police Administration Act, as you understand it?---Yes.

MR MORRISSEY: The other issue that arises from custody is one about speed of processing and at paragraph 134 of your statement you raise that. So you’ve indicated what we know is the duty, a key priority for youths in custody is to process them quickly. It does happen sometimes that young persons find themselves in custody, ultimately, not to be proceeded against by way of charge, so they’re arrested and brought in for the investigation purposes, as you indicated earlier. Recently – and I don’t have the documents to show you at this point, although such documents are available, but recently at Alice Springs on the same day, three young persons found themselves in custody for a period of approximately 30 hours, in one case 29 hours and the other two cases 31 hours and 32 hours. Now, I appreciate that you can’t comment on the specific case itself, but it appears that in each case there was a responsible adult present, and I understand that’s sometimes is a reason why nothing can be done, but that there was one present in a timely manner, at least within the first 12 hours or so. So could I ask you to comment upon that phenomenon, not the case but this is as an exemplar, can you comment on that phenomenon because it is a worrying thing obviously if young people are kept without charge for 30 hours or so, some states, such as New South Wales, the limit is four hours or at some places six hours, can you explain how that might come about and what sort of structural things lead to that happening?---Okay. So 137(2) allows us to hold people in custody for the purpose of the investigation for as long as is reasonably necessary for the purpose of that investigation - - -

And pausing there, just – may I interrupt it, and don’t – I want to come back, but just there, that’s the situation that you referred to earlier where you might bring a group of people - - -?---Yes.

- - - that police might bring a group of people in, not being sure who were the lead offenders and perhaps not even being sure that all were offenders, but nevertheless needing to investigate; that’s the scenario, yes?---Yes.

Okay. Sorry, I interrupted, now keep going?---And also applies to individuals as well. So anybody that we ..... further investigation will be operated on the provision of 137(2). That being the case, we’re required to log every – the 137 form that they


5

10

15

20

25

30

35

40

45

log is really around what has to happen in relation to the individual. So if you ask me to speak to any particular case I would need to go through that and - - -

Yes. I’m not asking you to do that at this point?--- .....

I understand what you said?---But - - -

But structurally, just in terms of how that might occur, there’s a range of reasons and what are they?--- And it could be the need for forensic examination, it could be access to CCTV footage, any sort of – obtaining relevant statements from witnesses that pertain to determining what charges should be laid. There’s – yes, there’s a whole raft of things that might occur in the course of the investigation.

So recognising that there may be some coherent and rational investigative reasons, for pursuing that practice, but just turning for a moment, if we can, to the subjective reality of a young person who is taken into custody on that basis, who in fact may not have committed an offence, do you see – do you – in fact – well, do you acknowledge that there may be a genuine sense of injustice and, indeed, suffering on behalf of a young person caught up in that situation?---Absolutely. And that – I guess, when we – if I go back to my large groups - - -

Yes?--- - - - scenario, it is part of the process of trying to sort that out, who - - -

Well, that’s really what I was coming to, yes - - -?---Other primary offenders.

Acknowledging the issue there, what – there’s no task force dedicated to solving this problem right now, but what discussions have there been to minimise the number of people – because you understand it could be quite alienating within a community that people who have done – have not committed offences, might find themselves in custody for up to 30 hours, seemingly way too long for the purposes of investigation?---Yes. We don’t – I – my understanding is we don’t have any mechanisms in place at the moment. The Police Administration Act is under review, so – but I can’t speak to what considerations are being made in that space.

Are you able to say whether, in terms of that issue – of that legislative reform, whether this issue has actually been raised?---I can’t say definitively, no.

There is always a question of balancing between investigative, you know, provisions that enable investigators to do their job properly on the one hand and the collateral damage that it might cause within the community on the other hand. It’s an endless battle for you, I appreciate, but - - -?---It is. And in relation to ..... I mean, I understand Royal Commissions – the Commissioners have been through the Darwin watch-house ..... seen the screen - - -

Yes?--- - - - and they operate under ..... those same screens are monitored by a duty Superintendent who does provide a level of review of everybody in custody and how long they’ve been in custody.


5

10

15

20

25

30

35

40

45

Yes. Alright. Could I just turn to the issue of bail now. There are a large number of matters which you have spoken to, I’m only going to take you to some and then there’s some cross-examination to come from the representatives of CAALAS and NAAJA, but on bail – as a general issue, I did wish to raise – to raise this, we’ve heard – the Commission has heard evidence about the effect of conditions of bail being imposed. At a general level, sometimes it’s said young persons are set up to fail and other more specific complaints have been made, some of which are – which include that some of the terms of bail – the conditions of bail that are imposed seem to be imposed in a boiler plate or pro forma way, such as curfews and so on, and yet curfews can be very hard to comply with, firstly, because of transport and, secondly, because of the home situation of young people. Likewise, specific residential and static residential conditions and the duty to report to the ..... in that space can also be problematic. Finally, issues concerning the comprehension by young people of a complicated set of bail conditions, particularly young people who may be subject to conditions such as FASD are problematic. What do you say to the possibility of re-analysing the imposition of bail conditions in a more simplified and comprehendible way for young people and do you – well, perhaps I will put it more generally, first of all, do you agree that there can be problems with the imposition of multiple confusing bail terms and, secondly, is there a solution that you’re aware of?---I think there’s a combination of problems. So the comprehension of a 12 year old of conditions is not going to be good. The difficulty there the comprehension of the responsible – relevant responsible adult and - - -

Yes?--- - - - we have a lot of communication problems there as well. So it is a complex environment. So if we’ve got responsible adults with the capacity understand what it’s all about, that’s fine, then we have that degree of monitoring at home. But if we don’t have that capacity there, it’s problematic, but we still have to deal with how we’re going to control the behaviour. Because often these conditions are imposed to attempt to control the behaviour of the youth.

Just on that topic, though, do you think the conditions – where you have a multiplicity of conditions – and I understand police will impose those not for cruelty or gratuitous reasons, but to address what they see as a specific problem. But where you have multiplicity, do you see that as arising from a need to control criminogenic behaviour but he kids or by a need to get them to attend to court. I appreciate both are relevant, but the multiplicity of conditions seem at least to be aimed at behaviour control rather than attendance, but I’m asking for your comment on that?---When they eventually get to the point of having bail conditions put on them, the reason those conditions are there, we may still have – we have no indication that they’re not going to turn up to court, but we come back to that balance of trying to protect the community because we know that – we have a very reasonable expectation that they are going to be out offending at night if they’re out and about at night.

May I ask you about the term “community protection”, when that’s – when you’re considering that in a bail context, an officer, considering community protection, is an that acute concept in the sense of protecting the community for the next couple of weeks or is it a more long-term concept of protecting the community from the


5

10

15

20

25

30

35

40

45

consequences of projecting a kid into custody when maybe they shouldn’t be put there, thus increasing their chances of being a long-term pest and difficulty for the community. In other words, short-term or long-term community protection?---For the period up until they’re dealt with by the courts, I think, because we’re not operating in that post-court space and we will leave that entirely to the courts, but we do have a responsibility in that time.

Yes. Alright. I do have to deal with these issues with some level of shallowness, I’m sorry, but we have to move to another one now, if we could. I just wanted to ask you a question about a specific issue, and that is the issue of breaches of bail. In broad terms, do police find it difficult to deal with the issue of the offence of breach of bail and how to handle that, whether to proceed with it, first of all; secondly, whether to proceed by summons or charge. In other words, is it a matter that causes some administrative difficulty for police?---I think sometimes the decisions around how they’re going to proceed, it’s not necessarily the administrative difficulty because for breach of bail it can simply be a breach at the next scheduled court appearance, we don’t even need effectively to prepare summons file is my understanding.

Yes?---But if – certainly if the youth is out and about and more particularly if it’s associated with fresh offending, then I think, perhaps, the charges – a charge for breach of bail at that point is the correct approach.

COMMISSIONER WHITE: Why not just leave it at fresh offending, Superintendent? If a young person has breached a condition of bail and has committed an offence in that time, perhaps because they’re out at night and they do a break and enter, isn’t the gravamen of the conduct the break and enter, really?---It is as well. But I think also in that case, the court ordered – the bail, by that point, is usual court bail and we prefer to leave that up to the judges and, in many cases, the judges just put the breach of bail aside.

Thank you.

MR MORRISSEY: Yes. Well, that was the substantive question I was coming to, Commissioner.

COMMISSIONER WHITE: ..... Mr Morrissey.

MR MORRISSEY: Could I – just finally before I step aside for my learned friends, could I raise a specific issue with you, and that’s the issue of breaches of bail, where – breaches of bail and charging of offences, where a young person is in residential care and they have, one might say, a domestic issue, sometimes trivial, sometimes not so trivial, on occasions serious. But this Commission has heard of the difficulties occasioned by carers in residential care calling the police and notifying of an offence, placing police in a particular situation. Now, could you speak about that and could you indicate whether you see there as being the possibility for a protocol which might alleviate some of the difficulty?---Certainly. And it is increasing area of work


5

10

15

20

25

30

35

40

45

for us, dealing in that situation. My understanding is that the service providers staffing these houses have, as policy, that matters will be reported as an offence.

Just stop there for one moment and I want to continue with that, just to park that, the workers in the residential home are generally employed by whom?---By non-government organisations, contracted to government.

And do you understand, just from dealing with them, that they are under instructions to call the police in such situations?---That’s the advice I’ve received. I’ve not worked in that space for a long time.

No? Okay. Alright. Thank you. Anyway, I intervened. So yes, that happens and you have pointed that out. So what are the problems that poses for police?---Well, a criminal complaint has been made and we have a requirement to deal with it. I know two parts of my ..... here in Darwin, judicial operations where they lay the charges and also youth diversion are very uncomfortable with that scenario because particularly it’s dealing with behaviour that our own children have exhibited over the years, but in our situation we wouldn’t go down that pathway. So we do our very best not to lay those charges if possible or seek alternatives or deal with them through the diversion process. But, unfortunately, a lot of the children that are in care are at the higher end of the offending at various stages.

We’ve heard from Judge Johnstone, actually, earlier this week of a protocol that seems to have been adopted with some success in New South Wales as to how the residential care workers will proceed when they contact police and how police will proceed. What would you like to see done in that area to improve or to lessen your workload and to allow you to play a constructive role but following short of being forced to lay charges in some instances?---Territory Families, with their practice advisory group, are discussing options to move forward in that area and they’ve introduced their youth outreach officers. What ideally we would have in the longer term is something that where a lot of these youth are treated pre-offending and by the time it gets to that offending stage, police have invariably become quite reactionary, so – but I think that’s more a question of resourcing. But I know conversations are being held both within police, in – with Operation ..... and also in the interagency meetings with the ..... by Territory Families.

Yes. Alright. Thank you. Commissioners, those of my questions for now, I might have some follow-up ones, but - - -

COMMISSIONER WHITE: Could I just ask you a little bit about the new initiative of community and youth engagement officers. I realise that they’ve got a – they’ve had a role in the past under a slightly different name. That’s set out in paragraph 16 of your statement. And they’re frontline police officers that have been allocated a dedicated role dealing with youth, as I read your statement, and that’s a very recent initiative, is it not Superintendent?---Their role has been broadened to be more than youth. So they are engaging with the broader community whereas in the past - - -


5

10

15

20

25

30

35

40

45

It was just?---In fact, in the original incarnation, I just ..... purely police in schools and then that broaden to youth engagement and now it’s being a broader package, but they are working shift work, they are working the hours that the children are – of youth are out and about roaming the streets and so a lot of engagement is there. So, for example, one of the officers is heavily involved with midnight basketball and has a lot of youth coming into that space.

And do they receive extra training to make them a little more amenable to dealing with the youth that they might have to engage with in the public forums?---To date - - -

Yes?--- - - - our training in that area has been limited. However, the training Territory Families has with their new youth outreach officers, has a lot of – it is my intention to have all my youth diversion people go through that training, and maybe cut out substance and stuff that’s not totally relevant to us, but ideally we would also have – all the community and youth engagement officers go through the same training, so they also have the capacity for making – engaging in restorative justice conferencing, etcetera, so they do have that background.

We understand that there are quite a number of former New Zealand police officers in the Northern Territory in this police service and, of course, they’ve had a longstanding youth aid program where mainstream police officers then engage in extra training to deal with youth and get paid extra because they have those extra skills. Is something like that a possibility for this group of officers, because they always like extra pay, I realise that, but it helps to cement the status and the impetus for the specialised training?---Certainly that’s one of the factors that keeps police officers going and working in that area, because they’re – they’re not – they don’t have access to some of the other operational allowances. So often it is a loss of income to come and work in that space, but ..... certainly get support from the Police Association, I dare say.

I suppose so. They would have to do some extra study, though?---Indeed.

Yes. Thanks, Superintendent.

MR MORRISSEY: Could I invite Dr Dwyer to come.

COMMISSIONER WHITE: Thank you, Dr Dwyer.

<CROSS-EXAMINATION BY DR DWYER [10.55 am]

DR DWYER: Superintendent, My name is Peggy Dwyer and I appear for NAAJA, the North Australian Aboriginal Justice Agency. Sir, you were asked to give examples in your statement by the Royal Commission of how NT Police had implemented policies, practices and guidelines which dealt with the

.ROYAL COMMISSION 10.5.17 P-3678 I. LEA XXN©Commonwealth of Australia DR DWYER

5

10

15

20

25

30

35

40

45

recommendations from the Royal Commission into Aboriginal deaths in custody; do you recall?---Yes.

I suggest you did that in good faith by comparing the police general orders and your knowledge of the legislation with the recommendations from the Royal Commission; is that correct?---That’s correct.

One of the things you’ve been asked about is the recommendation you referred to at paragraph 204 of your statement, which is recommendation from the Royal Commission 243 that when an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the OIC at the police station should be required to immediately advise the relevant Aboriginal Legal Service. And you’re aware now, aren’t you, that since writing that statement, it’s actually often the case that the Aboriginal Legal Service, at least NAAJA, is not advised of a young person coming into custody; do you accept that?---I understand that was a statement made yesterday.

Alright?---But without drilling down individual cases and whether the youth has, in fact, indicated they want that contact to be made.

Did you make any – I’m not being critical, did you make any attempt when you wrote your statement to drill down into cases by asking police on the ground as to whether or not NAAJA is notified when a young person is taken into custody as a matter of course?---I did speak to some of these people working in the custody area, but I didn’t keep comprehensive notes, and they said that – the question is just about invariably asked of the Indigenous person in custody.

But in the absence of any sort of protocol, you would accept that lots of police officers would be ignorant about their responsibilities to call in Aboriginal Legal Service, wouldn’t you?---No. It’s written into the general custody general order.

Have you read the statement of Jared Sharp which is before the Commission?---I have only read some excerpts of it.

You’re familiar with Mr Sharp who was a senior lawyer working at NAAJA?---Yes.

Can I just remind you that in his statement from paragraph 55 and beyond, he talks about, in his experience, although those general orders require police to notify NAAJA when an Aboriginal child is in custody, it doesn’t always occur. You would accept that to be the case, wouldn’t you?---Again, I would have to go and look at the specifics and, in fact, the custody order comes partly under my umbrella, and it’s – I’m happy to take it on notice in the next audit process to actually have a look in that space.

Has there been any audit process, to your knowledge, as to whether or not that general order is complied with?---The only order that I’ve been involved in was one


5

10

15

20

25

30

35

40

45

we conducted in February. It wasn’t part of that audit and I am not across what has been done in previous audits.

Do you tell the Commission that you are happy to make it part of that audit process in the future?---I do.

Thank you. Just briefly, in relation to the evidence you have given about the absence of a memorandum, that is, as you know, a specific general order requiring the police make reasonable efforts to establish protocols with NAAJA and each Aboriginal Legal Service; do you know why that hasn’t happened?---No. I made inquiries with the relevant officer this morning and have been working in that space previously and he wasn’t able to offer an explanation.

Are you aware that NAAJA has made repeated attempts to try and make sure that a protocol is put in place?---I’m not but, I think, as part of my role, I share what we call the custody working group which answers to what is now the custody steering committee which has oversight of all custody policy in the territory and I’m sure that’s going to be on the agenda from now on.

Are you happy to take responsible for pushing that forward on the agenda?---Yes.

Thank you, Superintendent. Can I ask you now about arrest, again, in relation to the Royal Commission recommendation, that is the 1991 Royal Commission Recommendations, you told the Royal Commission at paragraph 178 that policies and guidelines have been put in place in order to implement recommendation 239 so as to ensure that police officers don’t exercise their power of arrest in relation to Aboriginal juveniles unless it’s absolutely necessary, I’m paraphrasing; do you see that? It’s paragraph 178 of your statement referring to recommendation 239 from Royal Commission Into Aboriginal Deaths In Custody?---Yes.

In summary, Aboriginal young people should only be arrested as a last resort; correct?---That’s correct.

Have you read the statement of Sandy Lau, who is the supervising summary prosecutor with the DPP?---I haven’t read her statement, I listened to part of her evidence yesterday.

Are you aware, then, that she provides examples for the Royal Commission of a number of young people being arrested in relation to single charges of breach of bail?---Yes.

And you would agree that that is unnecessary and against the policies?---I totally agree with that, personally.

Alright. Are you familiar that similar evidence was given in relation to that issue by Shahleena Musk who says at paragraph 47 of your statement, in her experience there appear to be a preference to arrest rather than to utilise less intrusive means of


5

10

15

20

25

30

35

40

45

dealing with children suspected of having an involvement in alleged offending. You would accept that that’s part of her evidence?---I would accept that’s part of her evidence.

Can I just advise you that Mr Sharp, paragraph 23 and 24 of his statement – paragraph 23, for example, says:

One issue that I wish to mention is the excessive recourse to arrest rather than less restrictive options as per section 22 of the Youth Justice Act.

So there, Superintendent, you’ve got two very senior and experienced former NAAJA lawyers and the senior summary prosecutor saying that arrest is, in fact, not a last resort with NT police with juveniles. Do you agree that it is not enough then to implement legislation or general orders, there has to be better training for the police on the ground as to what these orders mean in practice?---I’m satisfied with the quality of our training at the recruit level, and this is my – at least a personal observation at the moment, we do struggle sometimes with the – maintaining some of the cultural issues within the organisation, but there’s – but in explaining that, we are ..... where we’re dealing with youth and we’re wanting to speak to them about something and how long it takes to get hold of a responsible adult or a support person. So either we drive around with the youth and try and find this person or we take them into custody, and so that comes down to the mechanics of it. If I can go on, certainly in some simple offences that doesn’t apply.

COMMISSIONER WHITE: If you had more resources, and I really mean documentary resources, about who the contact people for the young person is, for example, a NAAJA 24 hour duty lawyer, that would surely be a first point of call. That would, perhaps, stop the driving around with the young person in the car, which is not always practical, we understand that, there are other policing obligations. So something like that would assist, wouldn’t it?---It certainly would.

DR DWYER: Superintendent, you referred to the difficulty of maintaining a particular culture. You would like to see, wouldn’t you a culture amongst your police officers of real acknowledgment of arrest as a last resort for young people in particular, agreed?---Yes.

You are aware that under the last ..... government there was a tough on crime approach generally promoted, including towards young people; would you accept that?---Yes.

And that was often promoted in the NT News, for example; would you accept that?---I’ve not been a great reader of the NT News, but I accept that that - - -

Was it difficult, in those circumstances, to maintain an appropriate culture amongst your police faced with a different culture promoted by the government and certain newspapers?---I think in that area, there’s a creation of community expectations which I think can affect the thinking of some of our people, but it is constantly


5

10

15

20

25

30

35

40

45

reinforced that arrest should be the last option. And I know people from my office have questioned individual police officers to say, “Okay, why did we go down this pathway?”. So there is a process of feedback.

You accept that that’s going to be a constant challenge for you in the future to reinforce the appropriate culture with respect to young people?---Yes. I think that’s - - -

In relation to police within schools, you agree with the general proposition that arrest of a child at school should be avoided in all but extreme, exceptional circumstances?---Yes.

It should be absolutely a last resort, you agree?---Not quite last, but certainly it’s not something that we would prefer as a protocol.

Well, arrest of children in general should be a last resort but particularly so within the school environment. Do you accept that?---If they’re not offending at the time.

Because you would certainly accept that it would be humiliating, degrading, embarrassing for a child to be handcuffed and taken out of school?---It can be, yes.

And it’s the opposite message to what you want to promote within the school environment, isn’t it, about trust between children and police. Sorry. You just need to say yes for the tape rather than nod your head. Did you say yes to that?---And that was part of why we used to have police in schools.

Right. But are you aware of incidents in recent years where in fact local police have arrested children in school?---I have read of it happening. I haven’t studied any particular instance in depth.

Shahleena Musk at paragraph 57 of her statement says that – tells the Commission there has been two separate instances she is aware of where police have arrested youth at their school – she names Rosebery Middle School – during school hours whilst the youth were in class. Each of these youth were handcuffed in front of the staff and other pupils, arrested and taken back for the watch-house for further inquiries to be conducted. At the time of their arrest there was no threat of a continuing offence and they were each lawfully at school and engaged in class. You would be very concerned to learn about that, wouldn’t you?---If that’s the exact circumstances, I think that in each of those cases, arrangements could have been made to deal with it in another way.

So you refer in your statement to specific officers with – who are engaged to be particularly connected with young people but, in fact, there’s for training of police across the board about how inappropriate it is in most circumstances to arrest children at school; correct?---Yes. And I think that training has been given; whether people have taken it on board would be another issue.


5

10

15

20

25

30

35

40

45

Final topic is in relation to children in residential care. It’s again a topic that was raised by my learned friend senior counsel. Have – are you aware of any memorandum of understanding or attempts to implement one between police and the Department of Children and Families in order to reduce the instances where police are called out?---I’m not aware of any current memorandum of understanding. However - - -

Do you think that would be a good idea?--- - - - there’s a meeting at 10 am tomorrow morning to commence discussions of an MOU.

I see. So an MOU is planned?---Yes. So that is underway.

Okay. Is there to be consultation with NAAJA or other agencies affected in relation to an appropriate MOU?---I think yes, because NAAJA has presence on the practice advisory group which will be informing the development of such a document.

Finally, Superintendent, Sandy Lau, again, summary prosecutor, told the Royal Commission yesterday – you may have been in court – about an incident where a youth was charged with malicious damage presumably for a $5 bin that was damaged within a residential care. Are you aware of that case?---Only what I heard when I was monitoring them.

Are you familiar with a case where a female client represented by NAAJA was charged with malicious damage to furniture as a result of tomato sauce being squirted on the furniture?---I am vaguely aware of that.

That’s an example of a case, isn’t it, which could – which should have been dealt with other than by way of arrest and charging; correct?---Ideally, yes.

Superintendent, NAAJA made repeated submissions to police prosecutors to withdraw those charges. Those submissions were rejected. The matter was taken to hearing and the charge was dismissed. In those circumstances, do you think it would be appropriate for police to talk to summary prosecutors about what is appropriate in terms of pursuing charges against children? That is, that your culture you’re talking about needs to permeate all police, doesn’t it, including summary prosecutors?---I’m sorry. Where – could you just tell me where this - - -

Certainly. At a residential care facility?---Here in Darwin?

In Darwin, a child was charged with malicious damage as a result of squirting tomato sauce on furniture. Firstly, you have given an answer that there were other ways in which that should have been dealt with by police other than charging?---Yes. I’m surprised that conversations weren’t held.

Surprised and disappointed, aren’t you, to hear that?---Yeah. I’m happy to go with disappointed.


5

10

15

20

25

30

35

40

45

Okay. And then in relation to the second part of the question, repeated representations were made to summary prosecutors to withdraw those charges once they had been laid but that was refused. The matter was taken to hearing. The charges were dismissed. Do you agree that in those circumstances there seems to be a need for summary prosecutors to get on board with a culture of trying to avoid charging and arrest and consequences for children within the criminal justice system?---Well, police don’t have any summary prosecutors in Darwin. We lay the charges.

I see. So you’re saying that, really, the buck has to stop with you in terms of avoiding the charges in the first place?---In this particular circumstance, I would prefer the opportunity to go and speak to the officers that laid the charges and go from there because I’m not across the detail.

Thank you. Nothing further.

COMMISSIONER WHITE: Thanks, Dr Dwyer. Ms Graham?

<CROSS-EXAMINATION BY MS GRAHAM [11.10 am]

MS GRAHAM: Superintendent, my name is Felicity Graham. I appear for the Central Australian Aboriginal Legal Aid Service, CAALAS. You have given some answers when you were questioned by learned Senior Counsel Assisting about how you would like to see greater flexibility in the parameters around when police can divert a child from the court process; is that right?---Yes.

And is that greater flexibility that you would like to see partly because of a recognition that children often need multiple chances before they can be successfully diverted and steered away from a path of getting into trouble?---Yes.

When a child participates in a pre-court diversionary process, the police create a number of documents or reports about suitability, completion and so on; is that right?---Yes.

As a matter of course, those reports about how the child has participated or whether or not they have been allowed to participate, are not made available to the defence lawyers that might then later act for the child or for the prosecutors who might later become involved in the proceedings; that’s right?---My understanding is that’s recently changed. And I can’t comment whether – I understand that it is starting to happen here in Darwin but there’s nothing – I can’t see anything that would preclude the provision of that information.

From your point of view there’s no impediment to providing that sort of information and in fact it might assist to more successfully divert a child down the track if that information is available about why they were not suitable or why they failed to

.ROYAL COMMISSION 10.5.17 P-3684 I. LEA XXN©Commonwealth of Australia MS GRAHAM

5

10

15

20

25

30

35

40

45

complete a pre-court diversionary program. Is that fair to say?---It is, and certainly that would give you the avenue to provide us with information to reconsider our decisions, if necessary.

So, for example, if the reason that a child didn’t complete a diversion was simply because a responsible adult, an aunty or so on, wasn’t able to get them to the appointment, that’s the kind of scenario where, if the court and the defence and the prosecution know about that, it can be reconsidered again?---Yes. It would be very rare these days that someone – that a diversion would be refused for something as simple as that. I know my staff make regular attempts to re-engage with the youth and re-engage the family until it almost gets to the point where – so they can justify their reasons for it. Which is why I would be more than happy for you to see these documents.

In terms of the decision-making going into whether a child is suitable to be diverted, is it the current situation that Aboriginal elders or respected community members are not involved at that stage of the process to help police decide about whether a child should be able to be diverted?---If we’re talking remand, could – I really can’t comment on mechanics of it because that’s really a question for a practitioner. And maybe perhaps I need to put – that could be for Constable McKinlay today, because he would be able to answer that better than I can.

COMMISSIONER WHITE: He is behind you, Ms Graham.

MS GRAHAM: Would you like to see a process whereby elders and respected community members are given a role in that early stage of deciding whether a child should be deferred from formal court processes and charging?---Yes. And if I can add comment, I think on a number of the remote communities this is already happening.

Is it the case that in remote communities diversion is an aspect which can really benefit from the fact that the communities are small and the relationships are often closer as between police, community members, other service providers and so on, and so there’s a real opportunity in particularly remote communities to promote diversion of youth?---Yes, and if I – I understand Terry McConnell, with his restorative justice approach, Real Justice – he does talk in terms of applying a restorative justice approach to entire communities, rebuild those communities where it is structural. So it’s certainly something we do across government.

I’m going to ask you some questions now about the pre-charge holding of a child, and you have given some evidence about the Police Administration Act permitting detention for the purpose of investigation. Would you agree that given arrest being a last resort for, particularly, children, that police should be prioritising investigating first before arrest?---That’s actually really a complex question because it comes down to the nature of offending. Quite often the arrest happens because they’re apprehended offending at the time. And at that point we don’t know who has done what, what the degree of involvement is, you know, who the primary offenders are


5

10

15

20

25

30

35

40

45

and who was – who are just tagging along. So there is a lot of sorting out in that space.

As a general proposition, it’s not necessary to arrest a child to interview them?---That’s correct.

And so where there’s not that urgency of arresting a child because they’re in the act of offending, isn’t the better course to identify the child that you want to speak with, identify their responsible adult and invite them to come to the police station for an interview or invite them to participate in an interview at another location without the need to arrest the child?---I can go along with that. Yes.

And it’s not necessary to keep a child in custody to investigate matters that don’t really relate to, or don’t require them to be in custody. So obtaining CCTV footage or speaking to other witnesses: that doesn’t require the continued detention of the child?---And not having personally been involved in any investigations involving CCTV, part of that is how much the investigating officers need to be informed about what they’re going to be questioning the child about. Because they need to have a reasonable idea of what has happened before the questioning can occur. So it’s one of those – again one of those difficult balances.

Are you aware that in other jurisdictions there’s judicial oversight of the period of investigation so that in order for police to keep someone for beyond, say, four hours, they need to attain a warrant from a judicial officer to extend the investigation period?---Yes.

And is that something that you think could be a check and balance on police in the Northern Territory in terms of this assessment of how long is a reasonable period of time to detain someone for the purpose of investigation?---My personal view is that it would actually create difficulties because the time taken to get such an order then increases the – if the order is given, then increases the time that the youth is in custody. My personal approach would be if it was seen as a major issue that internal controls be put in place and then we would have – we would need an audit process to ensure that we are adhering to those processes.

Would you agree that when investigating offences against children, the period of time that’s going to be reasonable is usually going to be much, much less than four hours?---Depends on the nature of the offence. And a lot of the requirements of the Youth Justice Act actually extend that period, because it can take hours just to contact the responsible adult.

Thank you, Commissioners.

MR JACOBI: Just one question.

COMMISSIONER WHITE: Yes. Thanks, Mr - - -


5

10

15

20

25

30

35

40

45

MR MORRISSEY: I have one question arising from something Dr Dwyer asked, and I – perhaps I should ask that before my friend sweeps up.

So Dr Dwyer asked you a question concerning the vexed phrase, tough on crime, and its impact on the notion of community expectation. And you drew a fairly nuanced link between the way in which, perhaps, politicians would express themselves. The question I have here is not a party politics question at all. It’s phrased at a fairly general level. But where political leaders set a particular tone by comments about young offenders – and I’m not limiting it to tough on crime; it might be a different approach – but where political leaders do set such a tone, can this affect the way your members view the notion of community standards, or community expectations?---Absolutely. And from the content of the effect of the NT News as well, what is coming out of the media will invariably the attitude of particularly a lot of our younger people, with less experienced people, their attitudes to what the community expects.

And that’s – that bears not just generally on the idea of community standards and community expectations, but it bears upon necessarily how such police officers might conduct themselves, pursuant to the relevant policies from time to time?---Yes. I think that’s a reasonable proposition.

Alright. Thank you.

COMMISSIONER WHITE: Mr Jacobi.

<CROSS-EXAMINATION BY MR JACOBI [11.21 am]

MR JACOBI: Superintendent, can I just come back to the topic of diversion, and I want to ask you this. Does the charging of traffic offences in practice always prevent access to diversion?---No. What will often happen in that circumstance is the traffic offences will be set aside by the court and then referred – they can be referred back for diversion. And often in that case the traffic offences are just set aside and not proceeded with, so it doesn’t totally preclude the diversion happening.

And is that a common practice?---Yes.

No further questions.

MR MORRISSEY: Commissioners, unless there are any further questions, it falls to us to thank Mr Lea for the thoughtful evidence that he gave.

COMMISSIONER WHITE: Thank you very much, Superintendent, for your assistance to the Commission and particularly thank you for your lengthy and careful statement, which I’m sure took a long time to prepare, and thank you for your

.ROYAL COMMISSION 10.5.17 P-3687 I. LEA XXN©Commonwealth of Australia MR JACOBI

5

10

15

20

25

30

35

40

45

cooperative answers here today. A lot of those topics, of course, will be matters that will concern us when we’re writing our report, so thank you?---Thank you.

<THE WITNESS WITHDREW [11.22 am]

MR MORRISSEY: Commissioners, Craig Laidler is the next time. I would – if the Commission was otherwise minded to take a short midmorning break, this is the time. We only received his statement yesterday. We are prepared to proceed. I would value the chance to have a quick chat to him, and it might - - -

COMMISSIONER WHITE: We would quite like to have it to have a look at, so that would be a useful thing too. Perhaps we will get copies upstairs.

MR MORRISSEY: We shall manage that.

COMMISSIONER WHITE: Thank you. Right. Adjourn for 20 minutes, please.

ADJOURNED [11.23 am]

RESUMED [11.47 am]

MR MORRISSEY: Commissioners, I call Craig Laidler.

<CRAIG LAIDLER, AFFIRMED [11.47 am]

<EXAMINATION-IN-CHIEF BY MR MORRISSEY

MR MORRISSEY: Thanks, Mr Laidler. Would you state your fall name, please?---My full name is Craig Bradley Laidler.

And what is your occupation and rank?---My occupation is police officer, superintendent of the Casuarina division.

And in particular, what is your involvement with task force Trident?---Task force Trident falls under my portfolio as the superintendent of Casuarina.

Casuarina. Alright. Thank you for that. Did you prepare for the purposes of this Commission a statement made available yesterday?---I did.

.ROYAL COMMISSION 10.5.17 P-3688 C. LAIDLER XN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45

Have you had the opportunity to read that statement for the purpose of today’s proceedings?--- I have.

Are the contents of that statement true and correct?---They are.

I tender that statement.

COMMISSIONER WHITE: Thank you. Exhibit 360.

EXHIBIT #360 STATEMENT OF CRAIG BRADLEY LAIDLER

MR MORRISSEY: There may be other materials tendered, Commissioners, but there is one in particular I would like to tender now. Are you familiar with the Task Force Trident 2017 concept of operations?---I am.

Yes. And, Commissioners, that is at tab 104 in the tender bundle, and I wonder if that could be brought up.

COMMISSIONER WHITE: That will be exhibit 361.

EXHIBIT #361 TASK FORCE TRIDENT 2017 CONCEPT OF OPERATIONS

COMMISSIONER WHITE: So that was – I’m told that should be as part of exhibit 337. Is that – Mr McGee will have to help you with that.

MR MORRISSEY: Yes. I am instructed that the Commissioner was right the first time. It should be tendered as a separate exhibit.

COMMISSIONER WHITE: Alright. Thank you. So 361.

MR MORRISSEY: So may I just confirm the statement was 360 and the Operation Trident was 361.


MR MORRISSEY: Thank you. Yes. Very well.

And do you have in front of you a copy of the operation – of the task force Trident document?---On the screen.

On the screen. Do you have a hard copy that you can read?---I don’t have a hard copy.


5

10

15

20

25

30

35

40

45

Perhaps just – may I just provide – we will just provide you with a hard copy, because I will take you to it. Not straightaway, but in due course. Thank you. Now, could I just – you were present in court in the course of the previous witness’s evidence?---Superintendent Lea, yes.

Superintendent Lea. Correct. And you have – and you heard he was asked questions on many of the topics which you have covered in your statement; correct?---Correct.

And it looks on first glance as if you and he make comments that are very much or substantially the same in nature on most of the policies that bear upon the various steps of policing he has been asked about?---That’s correct.

And is there any you would wish to dissent from or qualify that you heard stated by Superintendent Lea in evidence?---No. I agreed with the statements of Superintendent Lea.

Yes. Thank you. Well, in that event, I’m not going to canvass all of those with you, subject to questions from others. So may I just ask you, turning first of all to the notion of discretion: you are familiar that police officers have a – there is a discretionary component in the decision-making by police?---Yes.

At various steps along the way, whether to grant a particular type of warning, whether it proceed by charge or by summons, by arrest and charge or on summons, whether to approve for diversion and a variety of discretionary steps such as that, and you have covered those. Now, your position is that you accept, indeed, that custody is a last resort for young offenders?---That’s correct.

You agree, in general terms, that the – it’s desirable that the discretion police officers have be exercised on a case-by-case basis allowing the officer to bring all relevant factors to bear on the appropriate course?---Yes. The different complexities of matters that we deal with, so it’s best that we deal with them on a case-by-case basis.

Okay. Now, attached to your statement at CL6 were a number of policies including the discretion policy. And that policy – you have referred to this at – I won’t take you to your statement unless you need to go there, but at 71.2 of your statement, you refer to the requirement that the discretion be exercised in the public interest. And the term public interest is used there. Now, are you familiar with that passage of your statement?---Yes.

What’s the derivation – where does the notion of public interest come from? Is it a statutory term or does it come from policies or from the orders?---Public interest, I believe, comes from our general orders. It’s essentially the balance of the interests of the offender, and in this case the alleged young offenders, but also the balance of the expectations of the community.

Yes. Now, the notion of the expectations of the community is not a statutory notion, is it?---No.


5

10

15

20

25

30

35

40

45

Where – to your understanding, where does that come from, the expectation of the community?---It would come from discussions with the victims that are involved. We do – on every occasion where there is a victim involved, we speak to them and try to understand what their expectation is as far as the outcome of each investigation.

Yes. Yes. I understand that. And that’s – and the involvement of victims is a matter that you have adverted to at various points. But expectations of the community is a broader notion, is it not. So leaving aside the victims – or not leaving aside, but going – moving broader than the victims, how do you and those officers under your command assess what the expectations of the community are?---We assess obviously through how things are played out throughout the media, and basically whether or not decisions that we make in regard to discretion or prosecution, whether it’s going to have an adverse response when it’s actually, when those details are made aware to the community.

Yes. So you have mentioned the media there. You heard me ask Superintendent Lea a question as to one might say the responsiveness of the force in, when assessing expectations of the community, to the expressions of political leadership, regardless of their colour, and I’m not going to put you in a position to comment on one party or another, but do you agree with what Superintendent Lea said there, that political leadership can influence the way in which you, or police officers, exercise that discretion?---I agree. It certainly can.

Yes. And in a sense, police – you’re in a difficult situation there, because you have taken the view that you need to have regard to community expectations, but you don’t have any particularly scientific way to gauge what that is on a day-to-day basis; is that correct? And therefore you have got to turn to what the leaders say and what the media says and other normal ways of finding out what the mood of the times is?---Yes. That’s correct. There’s that a difficult balance.

It’s a difficult balance. Could I just ask: does it leave you exposed to this, that community expectations as expressed by the noisiest or most vocal sections of the community rather than the expectations of a broad section of the community – well, perhaps that’s a long question. It’s a massacre. When you assess community expectations, the voices that are easiest to be heard in that space are those of politicians and the media; would you agree with that?---I do agree with that, that – and obviously that’s what a lot is heard and seen, but we have just got to be – we have got to be aware as police officers that the decisions we make are fair and just and not just in line with those who are the loudest.

Is there a way that police can factor in the expectations of those members of the community who don’t have such a loud voice in politics or in the media, poorer people or people suffering various forms of difficulty or deprivation?---Yes. I believe it’s annually that a survey is run in regards to the police force and how we operate. So we do refer to the results of those surveys to try and determine how we’re operating as a police force. But other than that, it can be difficult.


5

10

15

20

25

30

35

40

45

Can you name – give a name to that survey?---It escapes me at the moment.

Later on, you don’t have to do it cold in the witness box, but can you provide – are you prepared to provide that later on?---Yes. Certainly.

Yes. Alright. Thank you. Grateful for that indication. Alright. Thank you for that. Concerning the issue of, perhaps in particular, you have mentioned discretion in general, and you agree that that discretion arises at some of the points that were pointed out by Superintendent Lea at the decision whether to proceed by summons stage, the decision whether to arrest or not, and decisions relating to diversion, bail and other steps?---Yes.

Could I just ask you now to give some specific application of that within the task force scenario, and could I ask you now to exhibit 361. That’s the Trident task force – task force Trident concept of operation. Now, briefly, could you explain a couple of structural things to the Commission. What is a task force?---A task force is essentially a section that will be created in regards to a particular need of the police force at the time.

Yes. Although the term task force has an acute feeling about it, the reality is that it can be an enduring institution, can’t it? It can last for several years and be proposed to have an ongoing life?---Yes. It certainly can. Trident itself, this concept of operations, even though it’s marked as 2017, have been in effect in some form, I think – inception was 2011.

Yes. Now, apart from task force Trident – I understand you’re inside task force Trident and not inside other task forces. But could you state whether there are other task forces currently active in the Northern Territory, to your knowledge?---Currently, that I’m aware of, there’s task force Sonoma, which deals broadly over youth crime, across the Northern Territory. There’s also task force Winx, which is similar to Trident, but operates in the Alice Springs command.

And are you familiar with other – I’m not going to ask you to get inside those, but other task forces perhaps that bear upon young persons who may be in or close to the offending – to offending?---Sorry. Can you just - - -

Yes. Are there other task forces into – with – dedicated to other offence types which are relevant to young persons?---Only really the task force Winx, which is property offending as well, but it’s the southern command.

But it’s just in a different region?---Essentially, yes.

Yes. Alright. Thank you for that. Well, can we turn to task force Trident, then. When was – what was the inception of task force Trident?---I believe 2013, sorry, was when it first began.


5

10

15

20

25

30

35

40

45

Thank you. Now, the document that is before you is a concept of operations. Do most task forces have a founding document such as a concept of operations?---Yes. Generally they will have a concept of operations or a terms of reference.

Now, this particular concept of operations is one which you played a significant part in drafting and formulating; is that correct?---That’s correct.

Alright. Thank you. So could I take you to some particular parts of it. Now, the executive summary – sorry. Could we go to page 3 of the document, please. The executive summary deals with identifying what the concept of operations is and it’s really a successor in title to the terms of reference of the previous strike force?---Correct.

And it identifies, in effect, the purposes of the task force and some of the tactics and strategies that are to be used in pursuit of that – of the goal; is that correct?---It does.

Now, the overall goal here included the reduction of the offending rate in respect of property crime in particular?---Correct.

Alright. Now, we have heard some evidence about the use of diversion and of – well, perhaps of discretionary matters within policing, where measures of a diversionary kind, both section 39 diversion and the warning sort of regimes, were excluded or that certain offences were excluded, and they were generally traffic offences, anomalously, and serious violent offences but not property offences. And you’re aware of that as a broad – leaving aside operation Trident, you are aware of that broadly speaking, aren’t you?---Yes. And there is some property offences though that are struck out as well.

Some serious property offences are excluded; correct?---Yes. Unlawful entries.

Yes. And you’re aware too of the 2007 based $100 cut-off in respect of some?---Yes.

Alright. Now, just if I may turn now to the purposes that are set out at the bottom of page 3 and into page 4. The objective of Trident was to reduce the rate of incidence of volume crime, with emphasis on unlawful entries. Secondly to target known property crime offenders via an intelligent led TCG process. Now, could I ask you this: this known property offenders, property crime offenders, was not exclusive to youth offenders but it included a large percentage of youth offenders, did it not?---No. It’s all property crime offenders, but it can and often does have a large amount of juvenile offenders.

Can you indicate either with precision or by way of estimate, what percentage of those known property crime offenders were young offenders or are young offenders?---No. I wouldn’t be able to estimate that.


5

10

15

20

25

30

35

40

45

Can you give a non-accountable estimate, in the sense that you wouldn’t be held to it but just as an impression as a working police officer, what sort of percentage we might be talking about there?---Probably presently it would be over 50 per cent would be young offenders.

Alright. Thank you. Going on, turning over the page to page 4, and here a purpose was to ensure property crime offenders currently on bail strictly comply with all bail conditions and all breaches were detected and prosecuted. Now, that proposal has two components. Ensuring strict compliance on the one hand, and pursuing breaches by way of prosecution on the other hand. Do you see that?---Yes.

Now, I will ask you some more questions about it, but do you see there a potential tension between the general purposes of the Youth Justice Act and, indeed, the discretionary regime that you have established under the order on the one hand, and this proposal whereby all breaches are to be detected and prosecuted on the other hand. Can I just ask, first of all, do you note some tension between those two?---Yes. I can – I see what you’re referring to in regards to that all breaches are detected and prosecuted.

Alright. Well, I will come back to that and I will certainly ask for your comment about it. Number 4: identifying targeting and managing repeat property crime offenders and locations. So far as that section deals with youth, young offenders, that, in effect, means the targeting and managing of particular young offenders; correct?---Correct.

Very well. Thank you. Number 5 reducing the chance of people being victimised. Although it doesn’t say so, the gist of that section there is aimed at victims and not merely person victims but corporate victims but property owners who may be repeatedly targeted for burglaries or for other or criminal damage or other victimisation?---That’s right. That’s centred around probably trying to get in a little bit earlier in respect of identifying why these offences are occurring and where we can intervene as far as the security and design of premises where it makes it a little bit more difficult. So they’re not subject to property offences.

Yes. The beneficiary of point 5 there is not limited to people. I appreciate the term people has been used but it also extends to corporate citizens who operate businesses that may find themselves burgled?---Correct.

Thank you. Alright. Could we now turn to – go down to the heading Preventing Crime. Trident ..... serious property crime – you will see at the bottom of page 4. And once again, there’s a reference to targeting, prosecuting and managing all recidivist property offenders. Now, obviously we are concerned here with the percentage of those offenders who are young offenders. If we look over the page and see who the primary targets are, that includes repeat offenders and some of the young persons you are dealing with are repeat offenders; is that correct?---That’s correct.


5

10

15

20

25

30

35

40

45

It also includes – you use the term bailees, and that’s a reference to those persons placed on bail; is that correct?---Yes.

Sorry. We just need to make sure that we understand that. And here, you have mentioned particular targets. One of them is ensuring compliance with enforceable conditions including curfews, drug and alcohol testing. Now, by enforceable conditions, do you mean – obviously all conditions are in theory enforceable because a breach of them might bring them back to court. Are you referring to conditions that are – the breach of which are more easy to detect?---It really means ensuring compliance with their bail conditions. The fact it has enforceable conditions in there isn’t intended specifically to refer there any particular conditions. It’s just the fact to ensure that bail conditions are complied with.

You have been in court, and I appreciate you would be aware of the issue, but I will just spell it out to make the question a fair one. You’re aware, aren’t you, that there has been issues raised by the panel yesterday by other witnesses, and they were raised with Superintendent Lea this morning: sometimes it may be that bail conditions imposed on a young person are difficult to comply with in the real world circumstances in which they find themselves; for example those who have got a home that may be unsafe or abusive or uncertain in a variety of ways, or those whose home is distant and compliance with a curfew is dependent on whether the bus turned up?---Yes. That’s correct. And there’s – so there will be conditions that are reasonable conditions, but there may also be a mitigating situation which causes them to be in breach of that bail condition. However, yes, there’s not – there’s no malice in that breach or it’s not intentional.

Yes. So just – and I appreciate you had already recognised that in your statement. You recognise it again here. Can I just point out once again and ask you for comment now on the tension that I’m referring to between, if you like, the humane and realistic approach that you were referring to there that the police try to adopt and perhaps are obliged to adopt under their orders and the statute on the one hand, and the task force approach which at least on the face of it, in the words used here, appears to suggest a strict and somewhat undiscerning approach to the enforcement of bail conditions. Now, you have noted that the tension was there but I didn’t let you comment on it; now I would seek your comment on it, if I could?---The tension is there in that document but this concept of operations doesn’t take away from our responsibilities towards dealing with young offenders. So there’s quite a stringent process that any charges need to go through before they can be laid against a young offender, that we would assure at senior level of police so that if there is alternatives, then those alternatives are sought. I think there’s further in this concept document where it refers to, you know, referrals through other agencies and basically what we can do to try and get young offenders on to the right track.

Yes?---And ideally is that we deal with them at the earliest opportunity so that it doesn’t get to this point of recidivist offending.


5

10

15

20

25

30

35

40

45

You are quite right to point out that you do make those references later on in the document. It may be we get to them, but if we don’t my learned friend can no doubt take the opportunity to take you there. But I do want to pursue this through the document, if I may. If we go to 3.2, headed Recidivist Offenders, here I will put to you that the proposition is that it’s fairly stark language is being used and I will ask you to comment on that. But you said:

A zero tolerance attitude is to be taken with all recidivist property offenders. These offenders will be targeted relentlessly and prosecuted for any and all offences committed. Arrest is the preferred option for recidivists offenders rather than other avenues i.e., summons, notice to appear, diversion.

Similarly, and I will get a general comment, because there’s a flavour to this which I need you to address:

When warranted bail should be vigorously opposed. If this is not possible or local Youth Court bail is granted, members will seek strenuous and onerous bail conditions –

and you have given some examples which match – examples or conditions which match the enforceable conditions that we referred to earlier on:

These conditions must be stringently enforced to reduce the opportunity for reoffending.

Now, can I come back to this issue of tension that I raised with you. On the face of the words there, it looks like a different and harsher regime both in respect to the general targeting of such offenders, firstly; secondly, with respect to the use of arrest as a preferred option; and thirdly, with respect to the opposition to bail and to the conditions. It seems a fair question to ask you to address that globally but if you want to break it up, that’s fine, you tell us, because you will have some detail that you want to give. But I have put the comment to you: there is a tension between your obligations generally and the ones which you have expressed here in the tribunal and the words used there, so could you explain how you deal with that tension?---So in regards to that, when we are speaking recidivist offenders, we’re talking about offenders – and again this document doesn’t just refer to young offenders. But when we are talking recidivists, we are talking people with significant criminal histories, particularly in respect of property crime.

Yes. Well, I understand that, but could I pursue the reservation that you just made there a little bit further. You said that this document is not aimed merely at young persons but nevertheless and without holding you to the 50 per cent, a significant percentage are young persons. So here, what appears to be that recidivist young offenders are going to face a zero tolerance attitude because you spelt it as being all recidivist property offenders. So although you did point that out, that there’s a difference and it applies to adults and there may be a different consideration with adults, could I ask you to deal with the tension I have identified with reference to


5

10

15

20

25

30

35

40

45

young persons. Do you – I mean, you understand the tension that I’m pointing to, so could you say how that is to be enforced with your officers within Trident?---So in – and what this concept of operations doesn’t do is take away our responsibility under the Youth Justice Act. We still have a responsibility in regard to arrest being that last resort and the considerations for diversion and summons. So there are occasions where there may be, like, a significant crime series where a number of youths are involved in the first instance and in the interests of the safety of the youths and the safety of the community – because quite often, as one I dealt with recently, where there was a number of stolen vehicles where they had basically hijacked the vehicle from an elderly woman and were driving these vehicles, breaking into houses etcetera right across the Darwin area. So an operation was in place for the evening to try and – to stop that offending for the safety of those young people as well as the community as well. The potential for injury in that to occur was substantial. So when we were able to take those juveniles into custody - - -

Yes?--- - - - there’s a significant amount of investigation that needs to come with that. But – so they were arrested but then we determined out of that group who is involved with what point of what offending. Some may have just jumped on at the end or something like that whereas others could be the key components of why that offending has taken place. Then we determine who is relevant for charge, whether or not there are any relevant summons, and who can be released almost straightaway on diversion or similar.

Yes. I think – and I think anyone would understand the point you make there. But that’s the approach you take generally speaking without regard to the operation Trident document in any event, isn’t it; that you would assess the seriousness of the offence and - - -?---Absolutely.

That’s how you would deal with it under the statutes and the existing orders. Just returning to 3.2, the zero tolerance strategy, do you agree that as it is expressed on the page there, feel free inform refer to another part of the document if that’s going to help to interpret. That’s one of the reasons you’re here to assist with that. But it does look as if a young officer reading this document might be forgiven for thinking that the normal discretionary factors are to be applied – are not to be applied but that a more rigorous approach is to be adopted; in other words, arrest them and fight their bail and remand them in custody. It does – these are my words, but I’m saying to you, I’m putting to you that it reads like that in that paragraph there. Do you acknowledge a young police officer might read it the way I’m suggesting?---In the first instance they may read it that way, but there is quite a strenuous path ahead of them before charges can actually progress. So that’s why it say:

Where warranted, bail should be vigorously opposed –

and if that’s not warned that’s not going to occur.

I think that’s – you’re correct to point out that where warranted. That’s an extension which you would say would apply to ameliorate the application of this to young


5

10

15

20

25

30

35

40

45

people. But if you go back to the arrest situation there, it’s pretty starkly stated, isn’t it? It says all recidivist property offenders and it refers to any and all offences committed, and arrest is the preferred option. There doesn’t seem to be any exemption there. Do you think it might be an idea to adjust that direction?---Certainly we can. But it does refer to recidivist offenders and when we are talking recidivist offenders we are talking about a significant criminal history where your cautions, your warnings and your diversion process has well and truly passed.

COMMISSIONER WHITE: Is that – would that be part of your assessment, if you’re dealing with a young person that you might come to the conclusion is a recidivist offender, you would actually look at their history to see whether they had that suite of other options rather than charging them and bringing them before the court?---Certainly we would. And the members of task force Trident are quite familiar with a lot of the – when we talk recidivist offenders, they know who we are referring to there because there’s particular groups that are active at any one time. So even prior to referring to them, they already are aware of a significant criminal history of particular people that they’re dealing with.

Do they actually have access to electronic filing systems when they’re out on the job?---All the time.

So they can do a quick look-up?---Yes. So out on the road, on foot, in a car, they have tablet capability, even mobile phone capability, where they can check criminal history. And failing that they also have a direct link to the communications centre, which can provide it over the air anyway.

And would their criminal histories – I mean, I know it’s a contradiction in terms, but some file of that kind – indicate whether they had actually had warnings or a diversion before?---They can go in and check the person’s - - -

They can check - - -?---What we call their promise ID. So basically their history of dealings with police. And it will outline warnings, diversion processes, and criminal charges.

So they would be fully informed?---Completely informed.

MR MORRISSEY: Just arising – it’s partly inspired by the Commissioner’s questions, but arising from the previous witness – I’m stepping sideways for a moment. We will come back to this. But Superintendent Lea spoke of the role of community and youth engagement officers and he described in his statement – you have touched on it as well, I think – that previously there were youth engagement officers and they had a role of – an outreach sort of a role, but it took them into the schools and it brought them really into a –it was very much focused upon the offenders and their milieu, or the potential offenders and their milieu, whereas the new community youth and engagement officers – and, Commissioners, this, for the transcript, is to be found at 24 and 26 of Mr Lea’s statement – indicated that now


5

10

15

20

25

30

35

40

45

there was going to be a move away from the schools-based approach and more emphasis on a whole community, on the whole community engagement, providing crime prevention advice and engaging with the community to open up communication channels with the community generally speaking. You’re familiar with that change?---Yes. I actually established the Northern Operations Division, which is where the community and youth engagement officers are situated. The idea around that move is that previously, when they were youth engagement police officers, they were attached to particular schools. So they spent most, if not majority of their time within schools. And so the identification there was a lot of the people that may need contact with these police officers either aren’t attending schools or it’s not particularly within schools that we are going to get that best contact.

Yes?---So what we have done is made them available to the entire community. And so then we try to engage with – I think I referred to in my statement, places like the neighbourhood activity centre at Sanderson Middle School, where there are young persons who, of their own volition most of the time, are trying to either get themselves back within that education stream and get back to school or receiving assistance to provide them, as far as moving forward with their lives, getting their Medicare cards, drivers licence and those type of things. And they’re the type of young people that we now need to make sure that we’re engaging with. We can have a role in that as well.

Yes. But could I ask you this: it appears that in your task force, just as in the new job description for the community and youth engagement officers, there’s an augmented focus on engaging with, I might say broadly, the victims of crime and also the community, with a view both to supporting them but also with a view to engaging them in the policing process by way of behaving more safely, providing useful intel, and other functions. Firstly, do you agree that that is a focus of the Trident task force?---The engagement with victims?

Yes?---Yes.

And engagement with the community with a view to encouraging safe behaviour of property owners and so on?---Absolutely.

And with a view – now, I don’t want you to go into operational matters, but just as a – at a general level, with a view to increasing availability of useful intelligence to investigative bodies such as the Trident task force?---Yes. We always work in partnership with the community.

Yes. Yes. Of course. But the community and youth engagement officers’ role, which – there has been, if you like, a broadening of focus of that role – was that developed consistently with the ideal – with the hope of suppressing property crime that operations Trident and Winx are pursuing? In other words, is there – well, is there some coordination between the way in which the task forces are set up and the community youth engagement officers role has developed?---Yes. So the idea with the northern operations division which houses the community and youth engagement


5

10

15

20

25

30

35

40

45

officers, is that mantra of engagement, prevention and awareness. So there’s regular contact between the task force Trident and the community youth engagement officers under that banner of the task force Sonoma that I spoke of earlier so that we’re not missing any opportunities, particularly early in the piece where – so if we – if Trident are dealing with offenders and they identify someone who is a first time offender or it’s very early in the piece where they have perhaps gone off the track, we can make referral through the community engagement police officers so that they can look to provide support and assistance and engage other agencies to support that young offender to perhaps getting back to school, back on the straight and narrow, so they don’t head down that path of offending.

Yes. Alright. Thank you. Could I return to the Trident document now. I just wanted to conclude with perhaps a more general issue here. The – one might say it’s a – well, the term targeting has been used, and it has been explained and it has been amplified at various points throughout the document. Now, I will be quite clear, I’m not putting to you any suggestion of racial profiling because there’s no such suggestion in the document at all. Are you aware that in other jurisdictions, from time to time police have been accused of, rightly or wrongly, racial profiling in the way in which they target particular groups for investigation?---Not specifically but - - -

May I – I will mention one to you. At one point there was an allegation in Melbourne concerning the alleged racial profiling of particular groups around the Kensington/Flemington flats in about 2013/2014. Have you heard of that particular issue and that particular complainant?---Not particularly. There’s nothing I can reference to it particularly.

That’s okay. That’s okay. I’m not expecting that you did, and this is a question without notice as well. But just in terms of that, where you have a task force which, for reasons that have been assessed as valid by police, have decided to use targeting of particular groups or offenders as a tactic, as a goal to pursue, how do you ensure that the group from which the targeted people come don’t perceive it as targeting based upon racial or other reasons? In other words not that you’re doing it for that reason, but that you may engender that perception: how do you deal with that possibility and – have you considered that possibility and if so, how do you deal with it?---I mean, we always consider that possibility. We are quite strongly values-led as an organisation, so I would actually personally find it upsetting to have that sort of accusation.

You are not getting an accusation; I hope you understand that?---No. But if it was, if we were dealing with a matter and that was how it was perceived. You know, we are not on a particular side, here. We are the gatherers of evidence and we complete the investigation and put that forward for courts to decide. So we don’t choose the people who are offending. And I just want to elaborate a little bit, too, on where it says targeting.


5

10

15

20

25

30

35

40

45

Yes?---That’s not just particularly targeting for the sense of prosecution. Like, when – I think it mentioned in that document targeting offenders who are due to be released from prison, what Trident will do is actually set meetings to brief people that we know are recidivist offenders that are returning to the community and actually hold conversations with them as to what their intentions are moving forward and particularly upon their release. So that, again - - -

COMMISSIONER WHITE: Do you go and see them in the prison?---Certainly, we do.

Are you talking about adult prisoners here rather than youth offenders?---No. Both.

Both? So you are really looking at a kind of through-care assistance for these people exiting the detention system?---Absolutely. It’s more beneficial to us to deal with people prior to offending than when the offending occurs. So if we can find a way that we can intervene in a positive light then that’s a win for everybody.

MR MORRISSEY: I think – can I just ask you to expand on that, because it’s going to be of interest to the Commission not just today but on other days too. Can I take you to page 6 of the document there. So you sought to explain what you meant by targeting and to say that it’s not merely about arrest and prosecution and here you have provided some details about that. Could I take you down, please, to the segment where you deal with parole?---Yes.

I may have taken you – sorry. I have lost my place there. Sorry. It’s parole breaches. So at the bottom of proactive offender management, you have referred the Commissioner to the meetings that you hold or you try to hold with young persons who are coming to the end of their time in custody and you have indicated that there are meetings that are held. After they’re released, do you maintain or do you endeavour to maintain some sort of contact while the person, if they are on parole, is on parole and could you explain how that’s done?---There’s none that I can think of recently in relation that actually deals with parole. But we maintain a relationship with Corrections.

Yes?---And so their case officer would be – or our Trident members would be in contact with their case officer and also the person who has been released, and basically hold conversations as to how they’re travelling, having been released from prison and whether or not they have, you know, employment or employment lined up, or you know, what their prospects are moving forward and where possible, if there is referrals that can be sort of facilitated through NT Police then involving ourselves, we’re helping with that facilitation.

Just on page 6, the reference to parole there is – makes specific reference to parole breaches and to a notion called swift, certain and fair. That sounds a little bit focused upon revoking parole, but I may be wrong. Can you explain what swift, certain and fair means?---It just means - - -


5

10

15

20

25

30

35

40

45

Is it a policy?---No. There’s not a policy. It’s to ensure that we are dealing with Corrections so those breaches are dealt with immediately; they are not sort of left or forgotten and that’s why the fair is there. It’s not a case of just trying to breach people, have their parole taken away. It has got to be a fair process. But we need to ensure that we’re not just allowing those breaches to go, you know, unnoticed or not dealt with. So it’s really an involvement of everyone. So the Corrections are involved, police involved and, of course, the offender.

So I suppose a constant theme of this is close monitoring of targeted persons before they are known to have offended because it’s good policing to know who might?---Yes.

Once you detect offences, investigation, charge and disposition follows. And then there’s some sort of potential contact following up. Can you say, as a matter of daily reality, though, how much contact – how much of the post-care or through-care of what you do actually happens. I mean, this is going to be a question of leadership, resources and so on. Can you say as things currently stand how active is that component of the program?---As things currently stand, it occurs daily. Obviously not for the same persons. Depends on the number of persons that we’re dealing at one particular time as how many recidivist offenders there may be that particularly, who have recently been active or recently been released from prison. But we keep a daily record of running sheets of contact that Trident have with these people.

Yes. Yes. Thank you. Now, just excuse me one moment, please. Commissioners, that’s as far as I was going to go with respect to the Trident issue and I have a couple of other residual matters. I don’t understand there are applications to cross-examine, but the timing of this was such that I would be supportive of some ad hoc questions by my friends, this statement only came in yesterday. But perhaps there won’t be any. So if could - - -

COMMISSIONER WHITE: I would rather think that they are structured questions than ad hoc questions.

MR MORRISSEY: I suspect.

COMMISSIONER WHITE: That sounds a bit random.

MR MORRISSEY: Structured questions which arise ad hoc without regard to the normal process is perhaps how I should put it.

COMMISSIONER WHITE: Okay.

MR MORRISSEY: I’ve got a couple of other questions – and thank you for explaining all of that, I might add that if there are other matters that you felt arose that and caught without notice on those questions, feel free to put those to the Commission with an augmented statement. Could I move to the issue of overcharging or the notion of overcharging, it has got a pejorative sound to it, which


5

10

15

20

25

30

35

40

45

police officers may bridle at when it’s used, but it’s a shorthand term, and we had a panel yesterday where we had representatives from the DPP and defence lawyers. Each of those noted, perhaps, the prosecution one might be the easiest one to read out. There has, in the recent past, been a problem with police overcharging, for example, I had carriage of one matter in which a young person had been charged with 169 offences arising out of one spree of offending. As a result, many charges were withdrawn when the matter finally proceeded as a plea to 27 charges. Defence representatives put similar anecdotes and observed a similar pattern. Now, could I ask you to comment upon that? I understand what – the police initial position is that you have a process in place of charge review, which requires three steps and it should be that that doesn’t happen at all, and yet the observations seem to be that it does happen from time-to-time. Could I ask you to explain what you think are the best ways – do you think the problem exists at all and, if so, how do you see it as being best dealt with?---I don’t think the problem currently exists. My position, where task force Trident has been part of my portfolio has only been since January 2017. Quite stringent in the way that I manage how the charging occurs, which is why we refer to that process of where it has to go through the briefing adjudicator, it needs to be approved by the authorised officer and then it goes to JOS and also, quite particular – and I can’t remember his commencement date, but Senior Sergeant Rob Jordan who took over as IOC of Trident is also quite particular in that respect as well. So I think the checks and balances are in place to ensure that that doesn’t occur.

I think you noted at paragraph 38 of your statement that there was an opportunity for defence lawyers to raise issues concerning the weakness of charges when they apply for bail and you saw that as being one check and balance. One of the issues with that, though, I will ask you to comment on this, is that you acknowledge that when people apply for bail very often the position is such that they haven’t received a full brief of evidence yet and they won’t have statements. So although, in theory, a defence lawyer applying for bail may be able to point to weaknesses, as a practical matter they’re not going to be able to deal with 100 charges or so and point out the weaknesses of those charges on a bail application where they haven’t received the brief. So do you agree that that’s a qualification to the point that you raised at paragraph 38?---So – I mean, where – with the bail considerations, what’s included there is the strength of evidence.

Yes?---So we provide what evidence we have to support the charges that we intend to be laid, so that they’re available for that bail consideration.

I take from what you’re saying, you endeavour to engender in your workers or those under your direction, I should say, a culture of not – do you appreciate – sorry, just take you back, do you appreciate the issue that I’m raising is that where a multiplicity of charges is raised, it’s not really open to the defence or to the applicant to point out the problems until they’ve got a brief of evidence to do that with?---Depending on – and, again, it would be a case by case - - -

I appreciate that - - -?---Yes.


5

10

15

20

25

30

35

40

45

- - - take the cases though where that is the case, you have many charges, a kid may have been caught up with a group and may face many charges, and it’s not clear that there’s going to be a contested hearing, so no brief has been served as yet. Do you agree then in that situation it’s very hard for the defence to meaningfully assist the court with weak – evidence about the weakness of a case?---I can’t speak for how it would be for the defence to deal with those bail applications but the expectation on my officers would be that if there is a large number of charges that would be because there has been a large number of offences, there is a prima facie case for each of those charges and a reasonable prospect of conviction.

Yes.

COMMISSIONER WHITE: It’s a very short time frame, though, isn’t it for everyone to get together any kind of coherent brief because the appearance will be – the first appearance will be less than 24 hours away. You’ve got to have something to say to the?---There certainly is. So we – as investigators, we try to obtain as much evidence as we can to make available in respect of the matter when it does go through its different stages. But particularly when you’re talking a large number of charges, there’s substantial work involved for the investigators, even if you have a significant team pursuing that, to obtain all evidence that’s included, your CCTV, your witness statements, your forensic evidence. It can be quite substantial.

It’s just not possible in that short time frame for the first appearance before the court. When do you think the defence lawyers actually get any brief for a first appearance?---It really depends on the number of charges. A small amount of charges, obviously, a file can be put together quite quickly, significant amount of charges could take some time.

They tell us – and, of course, it’s those who work in the courts, it’s their experience too that that will often be a minute to 10?---Which can occur, yes, of course.

Bit tricky, isn’t it.

MR MORRISSEY: May I just ask, just pursuant to that, this is my final questions, Commissioners. Just as a practising police officer, are you able to give some wisdom about a couple of areas that have arisen, and one of them is that there seems to be, from time-to-time, delays with bail applications, matters – and you’ve made some comments about this at paragraph 46. Could I just ask you to expand on a couple of those, it could assist the Commission for you to do so. You pointed to one delaying factor, being the absence of a – or the delay in securing a support person as one issue that can delay, is that – what frequency have you seen that happen with?---I couldn’t really say what the frequency would be. Again, there’s a number of factors that would come into it and particularly the time of night or time in the morning when we’re talking very late or very early hours of the morning, it can be quite difficult to make contact with a support person and it can be even more difficult to have the support person attend. So even when contact can be made, there can be difficulty in getting them to attend. Or they may not have available transport and,


5

10

15

20

25

30

35

40

45

depending on their location, we do what we can to have them attend at the watch-house or the location of the young offender. So there’s a few circumstances there that can sort of contribute to that delay.

I take it, based on that, you would agree with what you heard from superintendent Lea and from others, that it seems highly desirable to have a coordinated custody notification protocol in place that’s properly resourced both for you and for - - -?---Yes.

- - - those who are to be notified?---Yes.

You have also mentioned the availability of on-call judges, could you expand a bit about that, how does that apply and when does it arise?---Yes. Outside of court hours, judges on call are not available between 10 pm and 7 am, seven days a week.

There is - - -

COMMISSIONER WHITE: Is there no system for an emergency application after 10 pm?---There is for emergency. So the on-call list will have the available judges for those particular days. In an emergency, that judge can be contacted but if it’s not an emergency, particularly in relation to where we’re talking young people, they will wait until 7 am in the morning for that contact to be made.

MR MORRISSEY: Yes. Would the Commissioners excuse me one moment. Commissioners, there are applications from the representatives of NAAJA and CAALAS to ask five minutes and up to five minutes of questions, respectively. Given the record, I would support that.

COMMISSIONER WHITE: Thank you. Alright then. Thank you, Dr Dwyer.

<CROSS-EXAMINATION BY DR DWYER [12.40 pm]

DR DWYER: Superintendent, I just wanted to ask you – take you back to some evidence you gave at transcript 3699.1 about the meetings that Trident has with some young people who are known to be recidivist offenders prior to them being released into the community. I think you gave evidence that it’s practice to visit those prisoners in custody, for example, to ask them what their intentions are moving forward and that sort of thing; is that right?---Yes.

With great respect, Commissioner White described that as Throughcare, I don’t think that’s your words, you wouldn’t describe that as a formal Throughcare program, would you?---It’s not a formal program. It’s just us trying to stay in touch with those offenders particularly to prevent further offending.

.ROYAL COMMISSION 10.5.17 P-3705 C. LAIDLER XXN©Commonwealth of Australia DR DWYER

5

10

15

20

25

30

35

40

45

You agree that a prisoner Throughcare program is designed to reintegrate prisoners upon release, and that’s not what is your program?---That’s not what we do. No.

Okay. Where does your power come from as a police officer to go and talk to youth about what their plans are in the community; is there one?---No, there’s no power. It’s if – if people don’t want to speak to us in that respect, then there’s no conversation.

Is NAAJA ever informed before you go and speak to youth about what their plans are upon release?---I’m not specifically aware. That’s something that I could check with the officer in charge of Trident.

You are aware of the NAAJA Throughcare program, are you?---Yes.

Are you aware that that program aims to link children up with accommodation, Centrelink, counselling, transport to meetings, health and those sorts of important things?---Yes.

You support that program as being important part of reducing recidivism?---Yes.

Do you think it would be a good idea for police to notify NAAJA and work with them prior to seeing a child in custody?---Absolutely.

Thank you. Nothing further.

COMMISSIONER WHITE: Thanks, Ms Dwyer. I think I put quotation marks, sort of, around the use Throughcare, Dr Dwyer.

DR DWYER: Thank you, your Honour.

COMMISSIONER WHITE: Yes. Thank you, Ms Graham.

<CROSS-EXAMINATION BY MS GRAHAM [12.42 pm]

MS GRAHAM: Superintendent, my name is Felicity Graham. I appear for Central Australian Aboriginal Legal Aid Service, CAALAS. Could I ask you a question about providing the brief when – or providing pieces of evidence when someone first comes to court for their appearance. Is there any impediment to the police providing the video of an E Roy that a person participants in at that very early stage?---I can’t see why it would be an impediment.

And you would agree that it assists everyone if as much information can be provided at the earliest stage of proceedings as possible?---Yes.

.ROYAL COMMISSION 10.5.17 P-3706 C. LAIDLER XXN©Commonwealth of Australia MS GRAHAM

5

10

15

20

25

30

35

40

45

In terms of the strategies used by police in investigating, particularly with young offenders, one of the common investigative strategies is to – either by arrest or otherwise, have a circumstance where the police interview the young person about the allegations; is that right?---Sorry, what was the question? One of the investigative strategies is to interview the young offender?

That’s a common investigative strategy?---Yes.

And when there are a number of young people who are thought to be involved in offending together, it’s a common strategy of police to arrest all of the offenders in one go, put them all into custody and interview them one after the other?---Again, that’s a complex matter. It will be a case by case. It wouldn’t just be for everything where there’s a number of young offenders that we just arrest them all and interview them one at a time. It would depend on if there was currently offending and that the risk associated with that current offending. There may be – it would depend on the age of the young offenders as well.

You agree, though, don’t you, that it’s a common situation given whatever other factors might apply that police do arrest a number of young offenders and then proceed to interview them all as part of their investigation?---That can occur, yes.

And that’s a very common occurrence when you’re talking about dealing with young offenders?---It’s common in a series of offences if there’s a large group of offending at the same time.

In terms of the attitude of the task force to bail, is one of the other ways that the task force deals with its strenuous or stringent attitude towards bail to make applications for court granted bail to be stayed, pending a determination in the Supreme Court about whether the person should be released or not; are you aware of that mechanism?---No, sorry, ask me again.

Are you aware of a mechanism whereby the prosecution can seek a stay of a grant of bail by the magistrate pending determination in the Supreme Court?---Yes.

And that’s one of the strategies that is used by the task force, is it, in dealing with offenders who have been granted bail by the local court or Youth Court?---It’s not a strategy. But, again, each case on its merits. If bail has been granted and from a police perspective we don’t believe that – or we believe that that should be reviewed, then obviously that .....

And when a youth is concerned, that can result in several days of them remaining in custody after a court has decided that they should be granted bail?---It can.

When a young person breaches a condition of their bail, it’s common practice for police to refuse that child bail necessitating a court to then determine whether they should be released or not; do you agree with that?---No. Again, it would depend on the circumstance. If we’re talking about a young person who – it’s the only time


5

10

15

20

25

30

35

40

45

they’ve breached their bail, it’s the first time and the circumstances around that breach, all that would have to be considered.

Thank you, Commissioners.

COMMISSIONER WHITE: Thanks, Ms Graham.

MS GRAHAM: That’s all right. Thank you, Commissioners.

MR MORRISSEY: Thanks. Before my learned friend replies, there’s just one matter I would seek to deal with. Could I ask you to go back to the concept of operations document, please and particularly go to part 4, Marketing and Media. Now, in terms of – I just wanted to ask you a couple of questions about that. In terms of contact with the media, are there policies in place governing who it is that speaks to the media regarding aspects of Trident. In other words, is it limited to yourself or other seniors or is it something that can be done more broadly by other officers?---Through the Northern Territory Police we actually have a media unit. So any contact through media is facilitated by that media unit where it’s determined who is the most appropriate person.

You are referring there to the Northern Territory Police, generally, which has its own media section?---Yes.

So it’s done that way. Nevertheless, though, you’ve used – in section 4 you’ve got quite a – well, a fairly developed media policy concerning the purposes of the media – of media contact as far as Trident is concerned. And, in particular, you set out to educate the community, that’s in line with general police procedures, also to inform of activities and wins and to encourage responsibility and accountability by community members. But could I ask you this question: that policy doesn’t extend to criticising judicial officers in their disposition of individual cases, does it?---Certainly not.

And that’s not something that you would be prepared to countenance, in other words the – what I’m referring to is comments that one sometimes sees attributed to police officers, whether rightly or wrongly, I don’t know, but it is attributed to police sometimes in the media that they’ve complained of a sentence, they’ve said it’s a slap on the wrist or some other critical comment like that. You would regard such comments as inappropriate as emanating from the police involved; correct?---If it’s a criticism of the judicial process?

Yes?---Yes.

And are you aware of any occasions when somebody speaking or quoted as speaking on behalf of Trident has made such criticisms of a disposition?---No, not in my time, from January.


5

10

15

20

25

30

35

40

45

In any event, such criticism would not fall within the purposes of media which you’ve set out in part 4?---Certainly wouldn’t.

No. Alright. Thank you for that. I just have one question actually arising without notice but at 4.2 you’ve noted internal media profile, here – and you’ve indicated there that Trident should be viewed as a career highlight. I take it here what you’re attempting to do is develop some esprit de corps within the Trident Task Force, make it a desirable place to work and attract people – attract worthy people to work in .....?---Yes. And developing a stepping stone to our crime investigations.

What that suggests, as I think you’ve acknowledged in any event, is the task force is really here to stay as the coordinating group based in Casuarina to fight property crime?---I would suggest that, yes.

Alright. Thank you. Those are my questions.


<CROSS-EXAMINATION BY MR JACOBI [12.51 pm]

MR JACOBI: May it please the Commission. I have four topics quickly, Superintendent, can I take you to exhibit 361 and the topic heading 3.4 Offender Targeting, and in the final paragraph, which commences:

The TOFR list.

The last sentences commences with the word “identified”; can you see that sentence?---Hang on.

It’s the last sentence before 3.5?---Yes.

Can you explain to the Commission what it is in practical terms that you do with respect to first time youth offenders with respect to their referral to NOD?---So with first time youth offenders there’s a number of things that we can do. NOD is the Northern Operations Division I referred to before which houses the youth engagement community youth engagement officers. So when Trident or even just the general duties members deal with a youth particularly for the first time, they will go through their process as to what’s their most appropriate way to deal with that particular youth offender, whether it be a caution or a verbal warning or a written warning and through on through the diversion process. But what we can also do there is utilise the community and youth engagement officers to try and have them make some contact with the young offender and their family, so that we can assist where we can getting them on to that right track or identifying what it is that’s caused them to offend on that particular occasion. And in that contact, the community and youth engagement officers can also perhaps identify some risk

.ROYAL COMMISSION 10.5.17 P-3709 C. LAIDLER XXN©Commonwealth of Australia MR JACOBI

5

10

15

20

25

30

35

40

45

factors that may be prevalent in that young person’s life. So they can get themselves involved to perhaps reduce that and reduce the possibility of reoffending.

That was expressed in these terms in terms of first time youth offenders, is it limited to first time youth offenders in practice?---No. It really – as opposed to first time, it’s really early offending. So we want to involve ourselves and intervene as early as we possibly can so we don’t head down that prosecution path.

Under the heading 3.5 Justice Continuum, the first series of dot points deal with victims, and then over the page it deals with management of referral pathways for offenders. I want to deal with youth. Can you explain, in practical terms, what it is you to do with respect to referrals to external agencies and to Territory Families?---So the first part with Territory Families, so where we can engage with Territory Families, if there’s a particular young offender or perhaps a group of young offenders, they may be living in the same location or there may be some particular issues with their placement and so we will engage and have open communication with Territory Families so that from both sides we can intervene at that early point and perhaps look at whether or not a different placement might be relevant or might assist with preventing them from reoffending. The second part, which is through external agencies, like the YMCA and the NAC, which is that Neighbourhood Activity Centre, which we – honestly, we don’t have enough of, and then I’ve visited there myself personally, is you see young offenders who, of their own accord, take themselves into that centre to participate and the counsellors and that there do what we can to re-engage them in education or, as I said before, moving forward with their life. So getting things that a lot of us probably take for granted where at home, you know, you just – you had a Medicare card because mum and dad organised that for you and you knew when to get your drivers licence, because all of those things were just part of the family unit. Some of these young offenders don’t experience that and it’s not available to them. So the centre like the NAC fills that void and assists them there.

There’s a reference in the first dot point to support link, am I right in understanding that that’s the mechanism by which police make an electronic mandatory notification to Territory Families?---That’s correct.

And that’s the notification that’s required under section 28 of the Act?---Yes.

Perhaps if I can just ask you: since you have been in Trident, since the beginning of 2017, are the two dot points matters that are done in practice?---Yes.

And do they occur commonly?---They do, particularly as much as we can, we’re trying to broaden the involvement of the northern operations division and I do expect that their capacity or their numbers will grow as time goes on, with a focus on engagement.

Can I come to a different topic, and that’s with respect to the communication of the approach. You were asked questions by Counsel Assisting about perhaps a junior

.ROYAL COMMISSION 10.5.17 P-3710 C. LAIDLER XXN©Commonwealth of Australia MR JACOBI

5

10

15

20

25

30

35

40

45

police officer coming to understand what was expected by way of Trident operations. In addition to this document are there other mechanisms by which the operations and expectations of Trident are communicated to junior officers?---When they come to Trident, they’re generally quite experienced police officers anyway. They’re not straight out of the college and thrown into Trident. Trident is – it’s quite a competitive place for people to attain positions and so it’s people who have shown a high aptitude in regards to their application to policing. But there’s also – when they first begin at Trident, obviously they have a sit down with the officer in charge. They’re assigned to a team which has a supervising sergeant and expectations are clearly discussed with all new members.

Do those expectations include principles with respect to the treatment of youth?---Yes.

And can I finally come to the fourth topic. You referred to a survey that was conducted with respect to this community expectations. Can I suggest to you that that survey is known as the report on government services?---Correct.

And perhaps, just for the Commissioners’ benefit, my understanding is that in its 2017 incarnation, the relevant passages with respect to police are found in chapter 6 of that report. May it please the Commission.

COMMISSIONER WHITE: Thank you. Thanks, Mr Jacobi. I think you asked the superintendent if he could supply that document. It looks as though it has been fully identified, Mr Morrissey.

MR MORRISSEY: Yes. I’m grateful.

COMMISSIONER WHITE: If the Commission actually wants it, then we will perhaps request it from the NTG.

MR MORRISSEY: Yes. Thank you for that indication. Commissioners, that’s the evidence of the witness, and it falls to us to thank him for his - - -

COMMISSIONER WHITE: Indeed. Thank you very much, Superintendent, for your willingness to come and assist the Commission in its inquiry, and we thank you very much?---Thank you.

<THE WITNESS WITHDREW [12.58 pm]

COMMISSIONER WHITE: Now, is it sensible for us to get the next witnesses in and, sort of, settled, even if we do not much more than that.

MR MORRISSEY: Yes. Ms McGee will - - -


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: And we will take a shorter lunch break.

MR MORRISSEY: Thank you. Ms McGee will take Mr McKinlay’s evidence.

MS McGEE: Commissioners, I call Matthew McKinlay.

<MATTHEW McKINLAY, SWORN [12.59 pm]

<EXAMINATION-IN-CHIEF BY MS McGEE

MS McGEE: Mr McKinlay, could you state your full name and your occupation and rank, please?---Yes. Matthew McKinlay. I’m a constable with the Alice Springs Youth Diversion Unit.

And you have prepared a statement of the evidence you are prepared to give to this Royal Commission?---Yes. I did.

Could we have that statement on the screen, please. You have had an opportunity to familiarise with that statement for today?---Yes. I have.

And are the contents of that statement true and correct?---They are.

I tender that statement, please, Commissioner.

COMMISSIONER WHITE: Exhibit 362.

EXHIBIT #362 AFFIDAVIT OF MATTHEW McKINLEY

MS McGEE: Constable, you have held your current role in Alice Springs since May 2016; is that right?---Yes. That’s right.

And you have been doing formal youth diversion work with the Northern Territory police for some time prior to that however?---Yes. Since 2012.

2012. In terms of the structure of the office that you work in, you have explained those arrangements in your statement, but in particular could you tell us whether you have any interaction with Ms Jennie Renfree, who is the senior program and policy officer, Youth Services, Custody and Judicial Services Division, Crime Support Command?---Yes. Through email and phone contact.

And she is based in Darwin; that’s correct?---Yes. Yes.

.ROYAL COMMISSION 10.5.17 P-3712 M. McKINLAY XN©Commonwealth of Australia MS McGEE

5

10

15

20

25

30

35

40

45

And in terms of training for commencement in the unit, who actually delivers that training?---I couldn’t say at the moment. When I did my training, it was by a fellow by the name of Paul Dixon, who was the OIC of Youth Diversion at the time.

And what kind of duration and content was that program?---That was a three day restorative justice conference facilitators course.

Is that the training you have referred to in your statement as having taken place in 2012?---Yes.

Okay. In turning to Alice Springs, from your observations, can you tell us a bit about what life is like for a young person in Alice Springs, particularly as to entertainment and recreation available, particularly in the evening and free of cost?---Off the top of my head, I could not say. There are meetings in Alice Springs that address that particular topic. I have only been to one of them and beyond that I could not say.

So it’s not something part of your role in youth diversion that you have ready knowledge of those activities?---No. No.

COMMISSIONER WHITE: Do you know as a person who lives in Alice Springs, though, what goes on?---I have more of a knowledge in that based on what my children do in the evening. So there are sporting activities, there are Girl Guides, there are army cadets and air force cadets. There’s a whole range of activities available, but - - -

Is there something like night basketball available?---I know that is being looked into as a future activity in Alice Springs - - -

It’s not happening now?---No. I don’t believe so.

MS McGEE: Are you able to give any observations about the relationship between police and young people in Alice Springs and any positive aspects that you might be able to comment on?---I know we have got an active youth engagement unit in Alice Springs. And from my interaction with some of the young people who have also come on diversion programs, they seem to interact quite positively with our youth engagement section.

I just wanted to spend some time on the principles of diversion. You note at paragraph 18 of your statement that the needs of victims and the community are important but that the needs of the young person are the first priority. And that’s not just your view, is it; that is effectively a restatement of the principal section of the general order for youth diversion. Does that sound right?---Yes. Yes.

I won’t ask for it to come on screen, but just for the record at paragraph 18 of that general order for youth diversion it reads that whilst the needs for victims in the community should also be taken into account, the needs of the youth are paramount in any decision. And you believe in an approach which puts the needs of the young


5

10

15

20

25

30

35

40

45

person as the priority is really a practical one, isn’t it?---Yes. It is incorporated as part of our restorative process in how we develop programs for the young person to do as part of diversion.

And is that because in order to stop offending, which is of course the ultimate public interest being pursued, it’s necessary to address the cause of that offending?---Absolutely, yes.

And you would agree that those causes are generally unique to the offender?---Yes. Yes.

You state at paragraph 215 your understanding in summary that court outcomes and court processes do not do anything to address the reasons for offending and are therefore less effective at preventing offending. When you refer to court outcomes, what are you referring to? Could you give us some examples?---There’s court outcomes like having no further trouble orders, or even good behaviour bonds, as happened several times frequently where charges are just withdrawn due to a determination of no criminal responsibility on the part of the young person. And so there’s no accountability on the young person for their actions and a need to address those actions in a positive manner. They can just walk from court and that is the end of the matter as far as they’re concerned.

So effectively no engagement with those causes of offending?---Yes.

And do you have any views about the effectiveness of detention from your observations of young people in Alice Springs?---The only observation I would note is that where young people have had a period of detention it seems for more likely that they’re going to repeat that cycle on leaving detention.

That’s from your observations?---Yes.

You also state at paragraph 26 of your statement that, for a range of reasons, it sometimes takes several diversion opportunities before a person will be able to change their behaviour and so these further opportunities should be made available so far as appropriate?---Yes.

And again that’s consistent with the general order for diversion, isn’t it, which states at paragraph 20 that youth may be afforded several pre-court opportunities to change their behaviour, dependent on the seriousness and the circumstances of the offence and the youth?---Yes.

And that principle recognises, doesn’t it, the need for a case by case and a qualitative assessment of the appropriateness of a particular matter and a particular youth for diversion; is that right?---Yes.

And that kind of open-minded approach to diversion is consistent with the principles of the legislation?---Yes.


5

10

15

20

25

30

35

40

45

And I would just ask you to agree that section 4 of the Youth Justice Act subsection Q, which sets out the principles of the Youth Justice Act – it provides that unless the public interest requires otherwise, criminal proceedings should not be instituted or continued against a youth if there are alternative means of dealing with the matter. Does that summarise your understanding of what it is that you in your role in the Youth Diversion Unit are expected and required to carry out.?---Yes. Absolutely.

Okay. And notwithstanding those principles, you note at paragraph 44 of your statement that a young person can only be issued with two written warnings and can be referred for a maximum of two formal diversion programs?---Yes.

Could I just ask you to explain the source of those limitations and any views you might have about how they sit with those principles we just talked about?---So, the source of what I mention there is from our general orders. And certainly around written warnings, we are giving a young person several opportunities to address their behaviour at the lowest level that we can. And I think that’s currently appropriate, because if we have given two warnings, for example, for a stealing matter and somebody is still going into shops and stealing then there’s obviously something going on that we’re not addressing through just giving a written warning to somebody. So we need to have a more therapeutic intervention into that young person’s life to address why this is going on, because what we have been doing isn’t working. And similarly through a formal diversion process, I would say it’s more – it’s a stricter regime there, because we have offered somebody two goes at formal diversion process where we would have done an assessment of their capacity and an assessment of their barriers, put forward a whole range of ideas of how we’re going to address these issues, and if we have done that twice, we could certainly assess whether somebody could come back for a third diversion process, but I would be expecting more input from that young person as what are they going to do, what do they feel is the issues that need to be addressed in order to repair the harm of what they have done, because we have tried a number of things and they obviously haven’t worked. So it becomes more of a conversation with that young person of where do they think they should go in order to address this.

The provision in section 39(4) of the Act, which effectively allows for that two previous dealings in formal youth diversion: is that a provision that is used with any frequency by youth?---So it hasn’t come up very often. I know currently I’m probably going to have two youths who are on drug diversion, who are basically going to be re-assessed under that provision.

And could you – without obviously disclosing any child-identifying information, could you perhaps explain why that’s appropriate in those circumstances?---Okay. With one of them, they have previously failed a formal drug diversion. I gave them a second opportunity at a formal drug diversion earlier this year, which failed due to further offending again. Then they have been referred back to diversion for what is now not going to be a drug diversion but is a more formal diversion program including elements of a more rigorous drug diversion program running over 12 weeks instead of drug diversion normally runs over, say, a 6 week period.


5

10

15

20

25

30

35

40

45

That’s a more comprehensive diversion?---Yes. Yes.

Okay. From your observations – from your experience of youth diversion programs and participants, do you have any observations to make about the appropriateness of these restrictions which exist in the Act and in the general order on access to suitability and eligibility for the programs?---They’re certainly very good guidelines but they’re assessed by myself and other officers in the Youth Diversion Unit on a case-by-case basis as to whether it’s appropriate to, say, give that third written warning, due to time frames from initial offending and what they’re currently being investigated for. Or, as with the formal diversion programs, if a subsequent formal diversion program is an appropriate way to go for that young person given the circumstances.

So you apply with some flexibility - - -?---Yes. Absolutely.

- - - and focus on the circumstances to hand?---Yes.

Are you confident that those around you in your office do the same?---Yes.

And do you have any observations about that practice in other parts of – I suppose, I might get to this in a minute, but obviously first-hand decisions are made by officers other than yourselves, and do you have any observations about the implementation of that flexibility outside of Youth Diversion Unit, specifically?---Certainly with front line police officers, their knowledge of the Youth Justice Act and the implementation of that in practice might not be as thorough as us youth diversion officers. With further ongoing training that I have conducted over the past year, I certainly get more and more police officers give us a call in Youth Diversion for advice on how to proceed rather than taking some form of initial action for a youth they are investigating.

I was going to ask you about that part of your statement at paragraph 48, where you indeed say that less experienced police officers often seek the advice of more experienced senior officers and you also say at paragraph 49 that at some times arresting officers charge and then bail a person in circumstances where the offending behaviour constitutes a divertible offence?---Yes.

Something that you would divert for and therefore there has effectively been a breakdown or error. Would you accept that?---Yes. But with clarification on that. The circumstances assessed at the time an investigating officer might lead them to believe that the best course of action is what they have done for putting – charging someone, putting them before court. But because of the way the youth diversion is set up in Alice Springs where the arrest file will still come to youth diversion before it goes to court, we get a second chance to assess what has happened and whether it would have been more suitable for that person to go on diversion. In those instances, what would be a section 64 referral from court back to diversion, we make sure there’s a note on that file to say that the prosecutor will direct that from court back to diversion without any further conversation with defence.


5

10

15

20

25

30

35

40

45

So there’s some intervention that can be made, but would you agree if there was some perhaps better training much earlier, before the need for an arrest and a charge, that that would ameliorate the experience of a young person having that initial interaction at all?---It’s difficult to assess that on just a general term without a specific case-by-case basis, because initial investigating officers, when they have dealt with some incident out on the road, are taking the actions based on the information they have at the time and working that in with the legislation. So they have – are making decisions they feel are justified by whatever the circumstances are at the time. So, you know, I’m confident that the right decisions are being made at that time at point of arrest. But it’s just that when we reassess it later, see that some different avenue of action could have been taken.

Would you like, as a general proposition, to see enhanced training for officers outside of the Youth Diversion Unit in youth diversion areas?---Yes. And that’s something that I have been doing and continue to do in Alice Springs.

You mention in your statement the, kind of, stop and think approach. Could you just describe to the Commissioners a little bit about that approach you have been implementing?---That’s – certainly where it comes to high volume property crime, where the officers, you know, go in to an incident at the time where a number of offences may have occurred and a number of young people are involved in those incidents, and they have – it results in a number of people being in police custody, that once they have the opportunity to assess each person that has come into police custody, it may become clear that some of these people may not be suitable for diversion, and so would go to court, but some of the people that have come into police custody may be suitable for diversion and they may have an opportunity to be released from custody prior to charging them.

You might have heard while you were present in court this morning some evidence about the pressure on, particularly, young police officers, but certainly across the police force in general to be meeting community expectations, and perhaps messages that are portrayed in the media. Are you able to give any comment about – in Alice Springs and your observations of officers engaging with youth there – whether those – whether it be those factors or other police management policies, guidelines or attitudes having an impact on officers’ decisions about laying charges?---Well, certainly through my training – and, as you said, the stop and think that I put forward – they can still address the concerns of the community and everything – all the information they have got coming down from management in regard to dealing effectively with property crime, while still complying with the Youth Justice Act and dealing with each individual that comes into police custody individually and not as a group.

I appreciate you saying – certainly there are steps that can be followed to make sure those competing things are all managed effectively?---Yes.

But do you see any instances where perhaps those influences are outweighing a proper application of the diversion principles?---I think, yes, it does come across


5

10

15

20

25

30

35

40

45

sometimes, and it’s mainly to do with property crime, multiple offences, multiple offenders and seeing everybody who comes into police custody be treated in the same way.

COMMISSIONER WHITE: Is that a convenient time for us to break?

MS McGEE: Yes. Certainly.

COMMISSIONER WHITE: We will take a shorter lunchbreak and resume at 2 o’clock. So if you would – Constable, if you would be kind enough to come back then to finish your evidence?---Absolutely. Thank you.

ADJOURNED [1.18 pm]

RESUMED [2.11 pm]

COMMISSIONER WHITE: Thanks, Ms McGee.

MS McGEE: Thanks, Commissioner.

Constable, one of the issues we heard evidence about from earlier in the week from Hannam J, formerly the Chief Magistrate of the Northern Territory, and also a panel of lawyers of defence lawyers and a prosecutor lawyer was about the lack of provision of information and knowledge amongst those realms, the judges and lawyers, about diversion processes and outcomes and the reasons for certain outcomes. And we heard that in Alice Springs at the moment there has been some positive developments in terms of information sharing. Could you just tell the Commissioners about those?---Yes. So when young people have been referred to a diversion service and something has happened that causes them to go back before court for whatever reason, I receive information from our case management team and people in Relationships Australia in Alice Springs on what engagements they have had and what has happened in order to put this young person back before court. And that information, I normally provide as a document with the prosecution file and that document does not always seem to get to defence. And that is something that they would normally – in a perfect world, they would be addressing the issues in that document, if they were going to make a section 64 referral back to diversion. So, in order to prevent that document from being misplaced or not being handed on, where I can identify the defence counsel for particular youth, I will just email that directly to them so they have got that document on hand.

And can you see some value in that being perhaps a more formal protocol around that to encourage that information sharing with other persons engaging with these young people?---I can’t speak on how it works here in Darwin, because our


5

10

15

20

25

30

35

40

45

relationship with the defence counsel down in Alice Springs is very good, because even - - -

COMMISSIONER WHITE: That’s largely with CAALAS people; is that right?---CAALAS and the NT Legal Aid people.

Legal Aid?---Because even where it’s a section 64 referral, we will have a conversation with the defence counsel prior to that going to court so there won’t be any conversation in court about acceptance back on diversion; that will already have been established before we get to their court date.

MS McGEE: Okay. You mentioned in your statement at paragraph 226 to 228 – you talk about you would like to see youth diversion officers become qualified specialists?---Yes.

And you suggested a diploma of youth framework. Can you just briefly explain the need that you perceive for this and also what benefits that diploma might offer?---My reasoning behind that is to make the diversion sector more appealing to people in the police force, so that it is a specialist sector that people actually want to come to and want to participate in. And my – also my reasoning for having that in there is so that we have the training to deal with the issues that we’re addressing on a day-to-day basis in youth diversion, so that we have a background in early childhood trauma and how to effectively engage with young people who are dealing with early childhood trauma or behavioural problems such as ADHD and – or whatever it may be, or FASD, and all of these issues, whereas certainly what I do at the moment is, when I’m faced with these issues, I’m relying on expertise of other people in the – in my region on how to address them effectively. And I’m not the one who has any training or background in any of these things that are complex issues that frequently come up as part of diversion assessments for young people.

COMMISSIONER WHITE: And do you have any institution in mind that might deliver that diploma? Have you got a particular one that you looked at the content?---The only one I found online was through an online university run out of Sydney. So - - -

Do you remember which one it was? Was it Macquarie?---I must admit off the top of my head I couldn’t be sure because all I did was a Google search to see what was available in the youth engagement and youth justice fields.

Do you have any sense of how long that course was, that diploma course?---That was, I think, possibly up to a two year course.

And in the police service, extra qualifications attract extra remuneration, I would suppose?---Not specifically. For example, if I was a trained for being a detective, there’s a specific advanced diploma in public safety policing, which on successful completion of that does attract more remuneration. But not so much for this field.


5

10

15

20

25

30

35

40

45

Other specialisations, though, do, don’t they, in the police service?---Only a limited number. For example, police prosecutions is a specialist area but that doesn’t attract any more money for - - -

So it’s just a cohort within the police service?---Yes. Yes.

Alright. Thank you. But it’s worth exploring a little further, do you think?---Absolutely. Yes. Yes.

MS McGEE: In your statement at paragraphs 97 and through to 99, you talk about the limited availability of registered programs, even in Alice Springs, and the need to use unregistered programs for diversion programs there. Your statement sets out how that effectively gets worse the further outside Alice Springs that you go?---Yes.

And effectively there’s situations where, in very remote communities, there is young people who are on diversion plans formerly, but the content of that is effectively, “Stay out of trouble and stay at home.” Is that correct?---Yes. We have had a couple of incidents where that has happened over the last 12 months where the sort of minimum diversion program we could do with no conditions is, if you stay out of trouble for three months, the period of time for a diversion program, 12 weeks, then that would be the end of your diversion program: just stay out of trouble.

So certainly those are instances where there is no therapeutic, no restorative justice and no intervention in criminogenic underlying causes, would you agree?---Yes. I would agree.

And could you just describe then what do you perceive as the need for – need in this area for resourcing and funding? Is it more staff in your team or is it more services and programs in the community?---No. It’s more services and services in the community.

Just a final set of questions about culturally appropriate services. You talk at paragraph 247 about a Canadian approach to diversion. You say there that it seems to be addressing the issue that we have in Australia where communities often feel that a program is being imposed on them, and the Canadian approach is improving that by asking communities what their issues are and how they think the government can help?---Yes.

Are you referring to a sentiment in Aboriginal communities in the Northern Territory and elsewhere in Australia that they are being told what to do by government rather than engaged and asked for their own thoughts and solutions to problems?---Yes. I think that’s probably across the whole of community; that they prefer solutions to community problems coming from the community rather than having some outside agency coming and telling them what needs to be done.

And would you agree there’s a particular sensitivity to that in the Aboriginal communities in the Northern Territory, in your experience?---Yes.


5

10

15

20

25

30

35

40

45

You describe an approach to diversion programs in which Aboriginal people in the local community delivering those programs, you perceive that as a viable option where there’s no case management service available?---Yes. That was something I’m still in the process of working on, sort of, formalising something that happens in communities where the community engagement from the local police officers is very good. And they would do this as a matter of course, where there’s an issue in the community, and the community will come to the police officers, say, and with the young person or young people who have caused some problem in the community and they will not only say what the problem was, but also come forward with, “This is what the solution, what the community wants.” And so for diversion that’s exactly what we are looking for because it makes the young people responsible for their actions, it effectively deals with that in the community, and then everybody has sorted out the problem appropriately.

And in Aboriginal communities you would agree that the involvement of elders and respected community leaders adds a real legitimacy to that process for the young offender?---Yes.

And would you agree that ideally case management, conferencing and program services and the actual suitability assessment would be best practice delivered by local Aboriginal people in Aboriginal communities, whether in partnership with police or?---In partnership. Yes.

You have given the example of a conference in one particular community. Are you able to offer any other examples of where this kind of locally driven diversion activity is taking place or you think it could happen?---Yes. I know it’s definitely happened in several communities since I have been in diversion in Alice Springs. Papunya being one: I had a phone call from the police officers out there recently in regard to issues out there. It also happens in other places. And I get phone calls from the officers in these remote communities saying this is – something has happened, this is how the community has brought it on our attention and seek to address it, and is that in line with the Youth Justice Act and youth diversion? And invariably, yes, it is, because that’s exactly what we want to see in youth diversion.

So you’re supportive of that local .....?---Absolutely. Yes.

Commissioner, I have no further questions.

COMMISSIONER WHITE: I just wanted to ask a little bit about restorative justice conferencing. You have mentioned it a few times in your statement. Just from your own perspective working in Alice Springs, has that been taken up reasonably regularly?---So for victim offender conferencing that is something that we are continually working on to improve the number of victim offender conferences we do. So at the moment there are still a far larger proportion of just family conferences. And there’s a range of reasons behind that, whether – for example, at the moment there’s one young person who I’m dealing with who does not have the capacity to talk to the people who he has affected through his criminal activity. So I’m not


5

10

15

20

25

30

35

40

45

going to impose that as an outcome for him because it would not achieve anything, by making him do that.

Is that a cultural matter?---No. For this young person it had more to do with other - - -

Other issues?---Medical issues and other issues as well. Yes.

Fine. Thank you. We have heard from Mr Sharp, who is leading the Jesuit Social Services family, have restorative justice conferencing here in the top end. But it’s not rolled out into Alice Springs. Could you see a need for that happening there?---Is it my understanding for the Jesuits – is that they’re doing restorative justice conferences as part of section 84 of the Act.

Yes?---Which is not something that – we only deal with the section 39s and the section 64s.

So you have got any overriding picture of how it might play out in Alice Springs because it’s still quite a line, isn’t it? You deal with victims?---Yes. Yes. The only concern that hasn’t been addressed is if we have another agency working in that space where we have had – for example, Alice Springs, we have Relationships Australia engaging with the young people and their family for initial referrals under section 39 or section 64s, and so they have a bank of knowledge as to who this young person is, what their barriers are, who their responsible adult is, who the people in their life that they look up to and respect are. And then in a different space we have got a different organisation potentially coming in that does not have any of that information and whether that’s going to slow things down or be effective or – yes.

Certainly. But is there – do you think, from your knowledge of Alice Springs, is there an appetite for restorative justice conferencing to involve the victims?---Yes. When I go out and explain it to people, what I actually do and how it works and my key message to everyone is that even if nothing else happened, having a victim able to meet with a young offender and talk about what happened and how it has affected people and work out how they’re going to move forward is a very powerful in and of itself, even if nothing else happened.

Ms McGee?

MS McGEE: No further questions, and there’s no cross-examination.

COMMISSIONER WHITE: Yes, Mr Jacobi.


.ROYAL COMMISSION 10.5.17 P-3722 M. McKINLAY XXN©Commonwealth of Australia MR JACOBI

5

10

15

20

25

30

35

40

45

MR JACOBI: Just one topic. Can I take you to your statement at paragraph 95, and take you to the last sentence. You see the sentences commences with the word “informal”?---Yes.

Can you give some examples of where you have made arrangements for informal programs that are short-term in a remote location? You were asked some questions by Counsel Assisting about an occasion where there was no content, in essence, in the program?---Yes.

I just wonder whether you could give some examples of other programs where they have had content and you have been able to negotiate that in the community?---Okay. The only circumstances that I can think of off the top of my head are from ..... where I might have engaged the local school to keep an eye on the school attendance of a young person, engaged the local council to provide a short-term program for me that had a step delivery so people about could get employment at the end of their diversion program through the council and also any counselling sort of activities requires engagement with the local – the local clinic to make sure that there’s somebody able to carry that out and the length of that program.

Thank you. I have no further questions.

COMMISSIONER WHITE: Thanks, Mr Jacobi.

MS McGEE: I have to indicate, I apologise, I was not aware of the updated status and we do one cross-examination.

COMMISSIONER WHITE: I thought that might have fallen by the wayside from the answers that have been given. Yes, Mr O’Connell.

<CROSS-EXAMINATION BY MR O’CONNELL [2.27 pm]

MR O’CONNELL: Thank you, Commissioners. It’s just a very discrete area.

Mr McKinlay, my name is Stewart O’Connell. I represent some youth who were formerly in detention. I just want to ask you some questions about foetal alcohol spectrum disorder and cognitive disabilities?---Yes. Yes.

You would agree that it’s likely that there were a high number of sufferers of these conditions in the youth population that you deal with?---Yes.

Is that something that is factored in, firstly, to the assessment process?---Absolutely, it is. Yes.

And how is that?---Okay. Through the assessment process, the – whoever is conducting that assessment is looking at any background, family background,

.ROYAL COMMISSION 10.5.17 P-3723 M. McKINLAY XXN©Commonwealth of Australia MR O’CONNELL

5

10

15

20

25

30

35

40

45

cultural background, any medical history, education of the young person, in order to determine what that person is capable of doing as part of any diversion program. And hopefully – FASD being very difficult to diagnose – even if there isn’t a formal diagnose for FASD, there will be some information that would lead the assessor to believe that that is a factor for that young person.

And if the assessor does reach that conclusion, either on the basis of a diagnosis or a suspicion, does that then preclude the young person – presently as programs stand, does that preclude them from desertion?---No.

Are there programs that are specifically designed with FASD in mind?---Not as such, because where young people have a cognitive disability, some sort of learning difficulty or FASD, for example, either through the assessment process we will identify that they are already engaged with some agency to address those issues or if they’re not we put them in touch with those agencies so that they’re effectively dealt with.

And what about the issue of noncompliance? You noted that one of the main reasons that diversion falls over is because of non-compliance?---Yes.

Is it taken into account that children with FASD and/or cognitive disabilities might find it difficult to comply with the conditions of diversion?---Yes. But hopefully in the first instance any diversion program we have set up for that particular young person would be appropriate and achievable for them. If there is some issue along the way, we have things called compliance meetings to see if there is some issue that we hadn’t picked up in the assessment process and need to address and if we need to change the program to suit the person, then we will do that.

So if you found out that the noncompliance was due to such a condition, then it would be likely the young person would get a second chance?---It’s not so much a second chance as we re-think the diversion plan at that point to make it more appropriate for that young person, given their issues.

And I know you said that you need more services and programs all up, but do you think at the moment there’s a desperate need for move services and programs designed to deal with youth with FASD or cognitive disabilities?---I would say yes, but the caveat that, for example, in Alice Springs they have got a specific part of the hospital that’s just coming online to help identify, manage, and treat people with FASD, and so there are more services becoming available.

COMMISSIONER WHITE: Is that quite recent - - -?---That is quite recent. Yes.

- - - Senior Constable?---Yes.

Thank you.


5

10

15

20

25

30

35

40

45

MR O’CONNELL: And final question, Constable. You mentioned in your statement that when youth do well, for example, in relation to substance abuse rehabilitation, go back to their families or their peers, it can often quickly unravel?---Yes.

This may be beyond your remit but is there anything that is done as part of the diversion program to safeguard against that unravelling?---The best we can do as part of the diversion program is if we have identified when somebody goes back to their family or their peer group that there’s going to be continued ongoing issues that are going to make everything fall over for a certain period of time, that they’re – these young people are engaged with some other agency that are going to engage with that young person beyond the diversion process. Because we have identified that we stop at 12 weeks. And we want to make sure that that young person continues to have some support and not just nothing going forward.

Is there anything done, though, to contact – make contact with the families to see if they can modify their behaviours to support the youth?---From my experience, where young people are in that position, more than likely the young person in their family are engaged in other services with intensive family support services or Stronger Families or some other agency for addressing domestic violence or drug and alcohol abuse or something like that. So we make sure those agencies are aware of what’s happened with the young person on youth diversion so that can be carried forth in the future.

Thank you, Constable. Those are my questions.

COMMISSIONER WHITE: Thank you, Mr O’Connell. Anything arising out of that, Mr Jacobi?

MR JACOBI: There is. It’s simply one question.

In the complex cases to which Mr O’Connell referred, is it just you that makes the assistance, or do you have assistance from experts or others?---No. There will be assistance from experts and other people.

And are they within Relationships Australia; is that right?---No. When it comes to things like FASD and other cognitive issues, a lot of the time they’re already engaged with, say, CAMHS, the Central Australian Mental Health Service or some other counselling service who will assist and provide further information on that young person, or if we have a suspicion that these are issues then I have been using Head Space, because they have a forensic psychologist who specialises in child issues, to address those issues and how best to address them.

Okay. I have no further questions.

COMMISSIONER WHITE: Do you have anything arising out of one of those, Ms McGee?


5

10

15

20

25

30

35

40

45

MS McGEE: No, Commissioner.

COMMISSIONER WHITE: Well, thank you, Senior Constable McKinlay, very much for assisting us with our work. It’s good to have someone with the Alice Springs perspective coming in too. We’re very grateful to you for coming to us. Thank you?---Thank you very much.

COMMISSIONER GOODA: Thank you.

COMMISSIONER WHITE: And we will look into that youth justice diploma?---Absolutely.

Thanks?---Thank you.


MS McGEE: Commissioners, the next witness is Ms Jennie Renfree.

<JENNIE ANNE RENFREE, AFFIRMED [2.34 pm]

<EXAMINATION-IN-CHIEF BY MS McGEE

MS McGEE: Would you please state your full name?---Jennie Anne Renfree.

And your occupation?---Senior Program and Policy Officer, Youth Services, Northern Territory police.

COMMISSIONER WHITE: Would you mind just putting your microphone a little closer to where you are speaking. It’s a little bit difficult to hear. Thank you.

MS McGEE: And you have prepared a statement to this Royal Commission?---Yes. I have.

Just as it’s coming now, is that the statement that you have prepared?---Yes. That’s right.

And are the contents of that statement true and correct?---Yes. They are.

I tender that statement, Commissioner.

COMMISSIONER WHITE: Exhibit 363.

.ROYAL COMMISSION 10.5.17 P-3726 J.A. RENFREE XN©Commonwealth of Australia MS McGEE

5

10

15

20

25

30

35

40

45

EXHIBIT #363 AFFIDAVIT OF JENNIE ANNE RENFREE

MS McGEE: If you could go to page 3 of your statement, firstly. There’s a table under paragraph 15 there, and I understand you have been listening to some of the evidence this week and the Commission has heard a couple of different pieces of information about how many youth diversion staff there are in fact. Could you just talk us through, perhaps in some brief detail the evolution of the diversion unit staffing from 2000 to 2017. In particular, could you just describe the difference in the police and civilian positions as well?---Yes, certainly. When the juvenile diversion division was established back in 2000 it was with significant Commonwealth Government funding, which enabled us to hit the ground running basically with a large team of people that were sent out across the territory to set up the juvenile diversion scheme as it was known then. And some of those civilian positions were short-term temporary positions that were taken on. It included a lawyer in the short-term that assisted with contract development and we had a statistician as well for a while. Gradually that situation changed. Once Commonwealth funding was finished in 2006 – ’07, I think, was our last year – slowly those positions reduced. I think I explained in my statement the reason for that, was the Northern Territory Government took over that responsibility. There wasn’t additional funding provided for staffing, so that responsibility fell to Northern Territory Police. Gradually, though, we have increased again, and you will see as at this week, well, this month just gone, we have just about back – we are back to our full establishment as we were originally, with the allocation of five new police positions in the last month or so. A few of those positions are still vacant but they ..... recruitments in train for that.

MS McGEE: Could you just describe the difference between a police position and a civilian position within the unit?---Okay. I’m a civilian. I’m not a police officer. We also have a couple of administration office positions that assist with some of the policy work but also the administrative work.

So are those – sorry. Are those positions effectively not at the front line, directly involved with the case managers?---That’s right. Although I do have some dealing with the organisations, that’s part of my role.

Okay. If I could just ask you – I think you allude to this in your statement, that the effect of the progressive defunding prior to the current time has in effect meant there has not been sufficient staff component for the workload of the unit across the territory. Would you agree with that?---Yes. At times, that has been – there has been some delays and certainly with those new positions that have come on board recently it’s going to put us back to ..... to deal with all the cases as they come through.

Can I take you to tender bundle tab 34. It should come up on the screen, but I understand you have had a chance to look at it as well. This is – the date of the document isn’t apparent on its face, but it’s dated in approximately June of 2016. If I


5

10

15

20

25

30

35

40

45

could just go over to the next page. One more. It might be the last page. I’m sorry. I think the witness has my only copy of this document, unfortunately, with my relevant highlighting but - - -?---It’s with – behind you. They have their copy.

COMMISSIONER WHITE: Do you want to retrieve a document, Ms McGee?

MS McGEE: I might.

COMMISSIONER WHITE: I think it will be a lot easier for you if you did that.

MS McGEE: My apologies. If we just go to the page which is 1900, it’s page 2, you see about halfway down the page there, it says:

In 2014 Relationships Australia in consultation with Northern Territory Police Youth Diversion prepared a training manual that were used by service providers, but due to lack of staff and travel funds, no refresher training has been offered. New staff and service providers are generally encouraged to refer to the manual and they are offered informal training by NT Police Youth Diversion.

Is that one of the problems that arose as a result of the lack of funding and minimised staffing that you weren’t actually able to deliver to some of the case managers working - - -?---Case workers.

Case workers .....?---Yes. To a degree, yes. It was – what it’s meant is that we’ve not had the officers available to do the block training, what used to be able to happen is we used to fly people, the non-government service providers, in fairly regularly. We tried to do it every 18 months and we would have a three day workshop with them and sometimes follow up. I used to organise for extra services to come in around specific topics. That was limited somewhat because we had reduced staffing and also reduced funds for travel but, that said, we still had officers who would go out and provide one-on-one training whenever we – well, as often as we could when there were new staff came to some of the remote services particularly, but also in the urban area. So it wasn’t that there was no training at all, it’s just we weren’t able to deliver the block group training that we preferred to deliver. So it was often one on one training that we managed to continue.

COMMISSIONER WHITE: It states there that the minimum qualification requirements for facilitators are the same as for youth workers?---I’m not actually sure what that means. I’m sorry. I didn’t write that document. I vaguely recognise it. I think it comes from something from – or from Correctional Services when they had responsibility for youth justice.

So youth work – what sort of qualifications then are necessary to be working as facilitators for this kind of work?---Certainly from a police perspective, we would require a facilitator have been through the three day restorative justice training as a


5

10

15

20

25

30

35

40

45

minimum. Ideally, they’ve also been involved and supervised while they are actually facilitating a restorative justice conference.

And no more formal qualifications than that at all?---Not at this stage. Although, we have worked closely with Terry O’Connell from Real Justice over the years. Terry initially advised Northern Territory police when the juvenile diversion scheme was set up and spent – I think it was two to three years training our police officers. At one stage virtually all the Northern Territory police officers were trained in restorative justice, doing that three day course, that’s my understanding of how it was rolled out. I came in 2002. So a lot of that training had been done then. However, one of our senior officers, who was with Youth Diversion Unit in Alice Springs until about 18 months, took over. He was trained by Terry to continue that facilitator training. He is now a senior youth worker or caseworker with Relationships Australia in Alice Springs. So he has moved across and continued with that strong emphasis on restorative justice training.

MS McGEE: If I could just go to page 3 of that document, 1903, read down on the second half of the page it refers to the program requiring consistency in service delivery and there being a need for more resources to deal with the current backlog of formal youth diversion files. Northern Territory police advise Darwin, Alice Springs, Tennant Creek, Groote and Maningrida, in particular, have all increased offending over the past 18 months. Significant backlog in Darwin and Tennant Creek, at present, and Darwin, in particular, with a significant increase in section 64 court referrals, which have generally more complex time consuming clients. Could I just ask you, first, this was a document dated in about June of last year?---Yes.

Can you comment on whether that position persists to this day, given the – not yet the roll-out of the new staff?---Yes. That’s actually talking about not just police, but it’s actually talking about the need for youth diversion case management providers. So program providers under the youth diversion program which is now the responsibility of Territory Families but that program has always worked very closely with us. Certainly at that time there was real problems. In fact, additional funding was found, it was being set in train with the change of government and then the change of responsibility from Correctional Services through to Territory Families, and additional funding was actually found both for Darwin YWCA and it was actually MacDonnell Regional Council to enable them to deal with some of their backlog. And so that – yes, that has continued to a degree. At this stage, I understand there is about 20 files waiting assessment with the YWCA in Darwin. That was – the other day I was advised that. And I think Tennant Creek, they’ve caught up, they’re doing okay now.

Are you able to, based on your very extensive experience in the unit and ..... observed the changes in government and the changes in policy, the package that has been passed and is to be rolled out, do you have confidence that what is coming to the unit and to programs service providers is going to be adequate to meet the needs and operate that optimum level that you would like to?---I think from Northern Territory police perspective, yes, because we have been given a significant injection


5

10

15

20

25

30

35

40

45

of police officers, and that’s a very great opportunity. As I said, it brings us back to where we were with probably a similar level of all those years ago. In addition, and it’s certainly in my statement, through Sonoma we have had those linkages and this morning we covered both the role of the community engagement of police officers and the – I don’t think we went into it, but the remote community engagement – sorry, the community youth engagement officers and then the community engagement police officers. Sonoma has also endorsed increased working with Aboriginal liaison officers who ..... more recent positions who have come to some of our remote station and, wherever possible, Aboriginal community police officers. In fact, we’ve just recruited one from Darwin, Wadeye, just last month and she is currently undergoing training with the Territory Families block group of training that’s going through at the moment. That three week block. So – yes.

I wondered if you were going to make a comment in respect of the case management services, whether they are also in that category that you are confident that the – what is now going to be coming is going to bring them up to .....?---It’s not clear at this stage, because that’s within the ambit of Territory Families and, as you would be aware, there’s significant changes happening there with the ..... the youth outreach engagement teams and whilst that role is still – is seeming to be bedded down, but it appears that they will pick up some of that responsibility but that’s not been fully established yet. So we’re waiting to see.

.....?---Yes. But certainly there is a need for more case management. The one thing I might add there, though, whilst the YORET’s role has been – well, they’ve been funded and they’re currently being trained, my understanding is the YORETs are actually basically working up and down the tracks, so in the major urban centres where the majority of offending occurs but we will still have a need for a focus on remote communities as well, which is where we have our youth diversion program providers still in all of those areas. So that includes Maningrida and Groot. Yes. And just going back, I do understand Maningrida, in particular, still has a very high case load and for which they’re not probably funded to the level that ideally they would be.

You expect that will probably continue, is that what you’re saying?---Look, it does depend on offending and, certainly, we are doing what we can within the Youth Diversion Unit context to assist with that. Our officer has been going out quite regularly sort of for blocks of booking at a time. In addition, further on in this document, it mentioned the training manual that Relationships Australia prepared. They went out to Maningrida last year and ran a three day training session out there with that particular organisation, which was very helpful, I think, for their new staff that had come on board.

It would be a question of not enough rather than not appropriate?---Yes.

Just a question in relation to section 64 referrals. At paragraph 61 of your statement, you identify that a material change of circumstances is usually required for a section 64 referral to result in reassessment of suitability?---Yes.


5

10

15

20

25

30

35

40

45

I just wondered, where does the idea or the requirement of a material change come from, particularly when, as I understand the section, there’s already a consent with a prosecutor and the court makes the order, is it that the offender must show a material change of circumstances to you after that referral – to you or to the unit, after that referral has been made?---Look, I would have to take advice on that but my understanding is often a young person who may come back from court on a section 64, has already been participating in diversion and has failed for a range of reasons and that, I think, I outlined in my statement, that can be either withdrawal of consent by a responsible adult, it may be continued extensive offending. It might be that they’ve failed to engage in their agreed diversion program. And sometimes in the case of young people in care of the department, it may be that their living arrangements aren’t such that they can actually, or that they may be need be to be in care but they don’t have suitable living arrangements so they can’t actually engage. So they are in an unstable situation. So it depends on the circumstances and each are taken on its merits by our officers.

Just to clarify, is it your understanding that those particular circumstances are considered as the first step and then if a change is established, then a full suitability assessment is undertaken?---It’s very rare for it not to be reconsidered.

Okay. Thank you?---Yes.

At paragraph 63 you described that the Youth Diversion Unit decide, based on the suitability assessment, which diversion program to refer a youth to, having regard to their capacity, level of family support and needs and interests. And I just wondered if you’re able to comment on what kinds of – what specific elements of the Youth Diversion Unit training enables Youth Diversion Unit officers to be making assessments about, you know, what program is suitable to a child’s needs?---That’s generally taken on advice from the non-government organisations that work with us. So partly experience as well. But particularly based on advice that comes through on the assessment because they are the experts in many ways. They’re the ones that are spending that time doing the assessment with the young person and their family.

Are you aware of the – and I hope I get this acronym right, the YLSI screening tool?---Yes. Yes. Youth level of service case management inventory. Yes.

Thank you. And you’re aware that is it tool that is now being used in Community Corrections and it’s quite a comprehensive tool to assess criminogenic underlying needs?---Absolutely. We actually have been working or had been working quite close with Community Corrections around that and when they first started looking into that tool and sometime last year we sent, I think it was two police officers and one or two of the YWCA in Darwin, I know there were three people, I’m not sure who actually went and participated in that week-long training and came back and advised us it worked very well. So we are very committed to rolling that out. We are now awaiting for that to be brought in line along with what else is happening with Territory Families and the YORETs. But our understanding is it makes perfect sense for us to be using that. Whilst the assessment, that’s currently used, is actually


5

10

15

20

25

30

35

40

45

one that was developed by Relationships Australia a few years ago, the YORET – sorry – the YLCMI actually goes more into the criminogenic needs and background information that assists with in determining both the level of service need, but also what the long-term criminogenic outcomes are likely to be.

And in terms of programs that a youth might be suitable for and it might be needs-based, can you give any comment about the availability of programs that are suitable to young people’s needs in various locations across the Territory, particularly with a view to a quality of access in places like Darwin, versus .....?---Look, I don’t think it’s of any surprise to anyone here that remote areas struggle particularly struggle with programs. Unfortunately, there isn’t nearly enough in remote areas. We are mindful of that and certainly in diversion, as constable McKinley was outlining earlier, we try, wherever possible, to obtain anything that’s available in remote communities and to sort of hook that in.

COMMISSIONER WHITE: Do you ever – excuse me for interrupting, do you ever ask the communities whether they have some thoughts about what would make a good diversion program in their community, if there’s nothing much there otherwise?---I understand that does occur. Certainly where we have remote service providers, such as the youth diversion case management providers and I gave examples, I think, briefly in my statement where some of those providers have actually developed things on the ground. Say, for example, Groote Eylandt or Maningrida, Tiwi, for a long time we have been doing that. And we are guided by them in that case. But I think you were also referring to specialist programs, so - - -

Yes?--- - - - if you’re talking about specialist counselling and services like that, that’s sometimes harder. That said though, I’m aware that some of the services do travel and we try and keep tabs on who is going where and what may be available in some of those areas. But certainly, specialist mental health areas or counselling, it is difficult. It’s not limited though to the health area or the youth area, sadly, for the Territory.

MS McGEE: At paragraph 160 and 161, if you could just look at that, you refer to changes to the staffing model in urban and remote areas. I just wondered if you could explain what those changes are?---Yes. That’s what I briefly referred to at the beginning, I think, where partly, as a result of Sonoma, we now have additional police officers who come into youth diversion. But also we have agreement from the agency at the most senior levels that we will have increased access to both – what was the youth engagement, they’re now the community engagement police officers, community – sorry, this acronym only came in about a week or 10 days ago, so – and that we would also engage more readily with both the Aboriginal liaison officers and our community engagement police officers who are a group of Commonwealth funded officers that sit within police but operate in remote communities.

And, to your knowledge, do those officers that you’re engaging with have any or adequate knowledge of diversion processes and principles?---I think, in many cases, yes, more than some others, because they have already been working with us over


5

10

15

20

25

30

35

40

45

the years. Certainly in a lot of the youth engagement community and youth engagement police officers, at times, in the past, they’ve sat within youth diversion. We used to have an arrangement when they were school-based they would come in on school holidays, if they weren’t on leave, and they would actually come and sit in youth diversion and they do work quite closely with our officers anyway for a young person who has offended and on diversion.

Just a couple of last questions: at paragraph 163 under the topic Youths In Care, you talk about there being some separate arrangements being made for youths in residential care because you’ve outlined some of the difficulties and particular challenges for those children; could you just explain what those special separate arrangements are?---Yes. In fact, Superintendent Lea mentioned this morning that there’s a meeting tomorrow around MOU and it may be that these arrangements that we’ve made will be built into that. I’m assuming they will. But basically what was happening is we were finding – it was very difficult because a young person in care may have a few different case workers over a period of time and not have that constancy of care – support worker, sorry, that it was very difficult for a young person on diversion who was also in care for us to engage them effectively when they had a different caseworker over the period of the diversion and we were also having at times trouble finding out who the most appropriate person was to contact because early on quite a few years ago it was made clear that if a young person was in foster care, that the line of contact between the police and diversion needed to go through the agency, not the foster carer. Clearly, they’re part of that process but it had to be directly with the agency for a young person in care. We have now established these arrangements early last year to make sure that when any young person, who comes to police attention through diversion, is in care, that we can – can very quickly get access to the most appropriate person in the agency to come and talk with the young person and diversion and in this case to be assessed and things like that.

Just my last question: at paragraph 141, you express your views about some traffic offences that they should not be excluded and that you’ve been waiting for that since 2011 and also your view about the limit of the two diversions as an exclusion criteria. Could you just explain your, why it is you think that those limitations should be removed?---Sure. In relation to the traffic offences, it’s specifically – the main one is drive unlicensed, which has already been discussed today, that actually appear in the new Youth Justice Act in 2006 and we unaware it was going to be put in. It was a last minute inclusion. And although Superintendent Lea and I and a few others have been through that process with the rewrite of the Act, it appeared later, we were a little surprised, because up until then we had a lot of young people referred for diversion for an offence and ..... in particular, you mentioned earlier about being given the opportunity to get their licence and that was certainly what was happening. And, in fact, out to Groote, the youth development diversion unit over there actually had a vehicle with dual pedals that was bought for with diversion funds under the grant originally so they could be given driver training, and that was particularly important. Since then, of course, there’s now been driver training programs rolled out across the Territory and it is sometimes – it does occur that we


5

10

15

20

25

30

35

40

45

still make sure a young person is referred for that, even if we haven’t been able to officially divert them for that reason, because we can’t. But if it has been set aside, that can still be a sort of an additional outcome of the diversion.

COMMISSIONER WHITE: It seems a very straightforward way - - -?---It is.

- - - of getting rid of a lot of criminal conduct, doesn’t it?---Absolutely. Yes. And in many cases in the past it was actually – that was their main diversion outcome. If that’s the only offence and everything else based on assessment was seen to be going fine in their life, then that was the diversion was, and it was a fairly quick and easy one. Of course, for young people under driving age of 16, then that’s a different matter and that needs to be dealt with a bit differently, but still no reason why it shouldn’t be diverted. So we were very pleased when Ms Carney’s review in 2011 actually had that as a recommendation and a lot of work had been progressed to ensure that that went through with legislative change. That has been put on hold and I think that’s, yet again, been reactivated. So – yes.

MS McGEE: ..... purpose really is just to have flexibility to respond to the needs of - - -?---Yes.

- - - the youth in the particular matter?---Yes.

Those are my questions, Commissioner. There is a short cross-examination from Dr Dwyer.

COMMISSIONER WHITE: Yes. Thank you, Dr Dwyer. Could I mention, Dr Dwyer, we will need to close the court at about sort of five past-ish because we have a vulnerable witness coming in - - -

DR DWYER: I see.

COMMISSIONER WHITE: - - - at 20 past and we take 15 minutes to reorganise the live streaming and so on.

MR JACOBI: I have one question.

MS McGEE: Commissioner, I have been instructed 3.30 to commence the vulnerable witness ..... more likely.

COMMISSIONER WHITE: Well – so - - -

MS McGEE: But - - -

COMMISSIONER WHITE: Don’t take as a gift, which it might be. Right. Well, we’re fine then. There’s no proper - - -

DR DWYER: Thank you, your Honour.


5

10

15

20

25

30

35

40

45


<CROSS-EXAMINATION BY DR DWYER [3.03 pm]

DR DWYER: Ms Renfree, is it fair to say that – I beg your pardon, my name is Dwyer, I appear for the North Australian Aboriginal Justice Agency, NAAJA. Is it fair to say that from around 2006 until 2017 when the new commitment has been made to funding, the resourcing of diversion programs in the Northern Territory has been so poor that diversion ended up being really wholly inadequate for young people in the Northern Territory; would you accept that?---No, I wouldn’t say that totally. You’ve seen my statement - - -

Yes?--- - - - where we – I provided information on the number of youth justice conferences, both family conferences and victim offender conferences that have been held over the years.

But what you don’t provide is the numbers for young people who missed out on those diversions?---That can be provided if you like, but every young person that was referred for diversion was given that opportunity.

You accept, don’t you – I think my learned friend, Counsel Assisting, asked you about some of the problems and you said at times there was some delays but, in fact, the lack of resourcing meant that it went much further than just being a matter of delay for some young people, many young people across the Northern Territory missed out on diversion as an option because of the lack of resources; do you agree?---Not totally, no.

Alright. I just want to read you something from the statement of Mr Jared Sharp; you’re aware of who Mr Sharp is?---Yes, I do.

His statement is at exhibit 355. At paragraph 67, he says this:

When run well, diversion is an excellent process. Unfortunately, in recent years, demand has far outstripped capacity. For example, in 2016 it’s not been uncommon for there to be a waiting list of 70 to 80 young people in the Darwin region alone. This undermines the whole diversionary regime.

Were you aware of that sort of delay, 70 to 80 young people on the waiting list for diversion in Darwin alone?---Yes, I am. In fact, I was thinking that Mr Sharp must have been talking about Darwin. Not that those young people missed out, it’s that the diversion assessments were delayed and, yes, there are some cases where a young person may have continued to offend. We all understand, ideally, the diversion would commence fairly quickly and those delays, yes, have had impact. As I mentioned earlier, I understand now that as of last week or this week, that YWCA has currently 20 waiting assessment.

.ROYAL COMMISSION 10.5.17 P-3735 J.A. RENFREE XXN©Commonwealth of Australia DR DWYER

5

10

15

20

25

30

35

40

45

But I was asking you about that 10 year gap where the resourcing for diversion really fell away. The fact that diversion was delayed to that significant extent meant that it often just didn’t happen for young people, it wasn’t a reality?---Well, only if they continued to offend and they were referred to court and didn’t come back on a section 64. A young person will be offered, if they’re referred for diversion assessment, that assessment will occur.

Are you familiar with Sandy Lau, who is the - - -?---Yes, I am.

Alright. Ms Lau, in her statement, tells the Commission at paragraph 58, this is exhibit 351:

A problem facing the police in the YDU is the low number of staff allocated to diversion.

Are you aware that she said that?---Yes. And I’m also aware yesterday’s testimony she talked about three officers - - -

So in your statement at paragraph 18, if I could take you to that, starting with 18 you tell the Commission that the number of staff in the unit fell from a total of 17 to 12 positions; correct?---Yes.

And if you go back to paragraph 15, where you’ve presented a table, you suggest that in Darwin in 2017 there were six positions, four police and two civilians?---Yes.

But, in fact, the evidence of the prosecution on the ground is that there are half that number, only three and that that is having a significant effect on the utility of the diversion program; do you accept that?---I understand that’s what Ms Lau said yesterday. What she was referring to, though, is not the establishment, just simply the number of people in the office at the time. In March of this year, we had an officer leave, she was replaced within two or three weeks by an Aboriginal community police officer, but she immediately went on to the three week block training. She is now in the last week of that training with Territory Families. So we actually have three officers plus a sergeant. So we have two constables and an Aboriginal community police officer and the sergeant ..... this week.

Sure?---Yes.

But you accept, don’t you, that there has not been sufficient resourcing built into the system to allow for when people leave or go on holidays so that diversion can continue to run effectively?---There is now – there is not backfilling generally available except, as I mentioned earlier, at times we have had school-based constables come and sit with diversion which helps with that overlap and I expect into the future now that we have the agreement with Sonoma that we will have community and youth engagement police officers sitting with diversion more often.


5

10

15

20

25

30

35

40

45

That’s all very well for the future. You accept currently there has been a significant problem in diversion in terms of the lack of resourcing, don’t you?---Certainly the numbers are down in total does show that.

My question is not requiring an answer that certainly numbers are down, I want a straightforward answer to this question: you accept, don’t you, that the resourcing for diversion over the last 10 years, including currently, has been so low as to affect the ability of young people to engage in diversion effectively?---Certainly it has been lower than we would want it to be, yes.

So is the answer to my question yes?---Yes, but I would like to qualify it, at times, because those young people still eventually are able to be assessed but not within the timely manner that we would all agree.

But you understand young people and diversion and that diversion to be effective requires there to be an assessment that’s done in a sufficient period of time, a quick period of time, and then the diversion offered to the child in a - - -?---Timely manner.

In a timely manner, correct?---Yes.

I just want to ask you about diversion in communities. At paragraph 148 to 149 of your statement you talk about a response of the NT Government to some recommendations in a previous report. You note there a 2011 report of the review into the NT Youth Justice System. It recommended an increase for police diversion; correct?---Yes.

It recognised that report, didn’t it, that diversion was inadequate at that time for the young people to meet the demand; correct?---Yes.

And the response from the government was $300,000 per annum. That was not sufficient to meet the need, was it?---No. But certainly it enabled us to establish those two police positions in units in both Tennant Creek and Katherine which has made a big difference to us in delivering remote services.

One example you give at paragraph 149 is that CatholicCare:

What I was able to provide programs under this initiative.

Correct?---Yes.

If you have a look at the table at paragraph 109 of your statement, you will see there what I referred to. Now, Wadeye is the largest Indigenous community in the Northern Territory at the moment or is - - -?---Yes.

3000 people or a population of that number, correct?---That’s right.


5

10

15

20

25

30

35

40

45

Do you see there in 2016/17 the total number of diversions was four - - -?---Yes, that’s right.

- - - in 2015. ’16 it was 14. They’re pretty low numbers, aren’t they, for a community of that size?---Yes. But there has been significant government – across government effort gone into that community and not just by government but by the community in the last few years, and my understanding – and I could be corrected – is that offending generally is down in Wadeye and things have turned around significantly compared to how it has been at times in the past.

Let me give you another example: there’s Lajamanu there, also a significant population size of 1000 and above; correct?---I don’t know about Lajamanu whether it’s that many.

Alright. Will you accept that for a moment from me?---Mmm.

If you have a look at the numbers of diversion through, three in 2015/16, four in 2016/17, you accept that that reflects an inadequate diversion program in that community?---No. If you were to – and I would need to get the figures for you, but we’ve had relatively low numbers of offending overall in Lajamanu. Of interest, though, to you might be, if you look at Kalkarindji in 15/16 where you can see over the years we have had pretty low numbers of diversions, suddenly in 15/16 there was a spike in offending and we had 13 young people who were diverted and that’s an example of how we do respond when we have to.

Ms Renfree, are you aware of correspondence that was exchanged between the Youth Court Magistrate, police and other stakeholders about the need for an appropriate diversion program in that region - - -?---Yes, and I - - -

- - - because it was inadequate?---Yes. I did participate in a meeting near Katherine where the school principal, who wrote that, came into Katherine and we had a significant period of time talking about what we might be able to do out there.

So the diversion program was inadequate in Lajamanu; is that right?---That was what was believed at the time but the numbers of offending were very low comparatively and we certainly responded as we could to that.

When I asked you that question previously, you didn’t mention to the Royal Commission that actually the school principal in the community did think that diversion was inadequate?---I’m sorry. I didn’t think about that particular incident, but the numbers of offending at the time in Lajamanu was low.

Are there any other communities that you’re aware of that have raised concerns with you about the inadequacy of diversion programs available to them?---Are you talking about ones that don’t have youth diversion grants programs?


5

10

15

20

25

30

35

40

45

The ones that do or don’t, are there any communities that you are aware of in the last 12 months that have raised those issues with you or recently?---Well, certainly not with me directly, but I’m aware of some communities that would like to see more programs. They sometimes come up through the Youth Court. I’m aware that Ms Oliver sometimes has discussions in the Youth Court process with those communities.

You agree, don’t you, with the principle that locally run – locally resourced programs engaged with Aboriginal solutions for the Aboriginal population are the best and most effective, don’t you?---Yes, I do.

Do you agree you can’t have a one size fits all model for what diversion programs will work in Indigenous communities?---Yes, and I don’t believe we do.

Okay?---Yes.

For example, in a community, like Maningrida, there might be different family groups that will interact with different services; correct?---Yes.

And so there will be a need in those circumstances to resource different services to provide diversion programs for the different family groups?---Well, that’s perhaps an ideal world, but in the case of Maningrida the organisation that is funded is a locally run service called Malibam and they actually work across a lot of those organisations and my understanding is different people from different cultural groups will be involved through that process.

Do you accept that there might be some families who don’t interact with Malibam then, but they might interact, for example, with Bawinanga or Boonawarra, one of the other – one of – another group within Maningrida?---Yes. If that’s the case. But we’ve not been advised that, and so far we have not had problems with getting people on the basis it’s the wrong people culturally.

Do you accept that you might not be aware of some of the problems?---I understand that, yes.

Okay. In those - - -?--- ..... making that decision .....

Alright. Do you accept the government’s responsibility to henceforth, and particularly on the back of this Royal Commission, to go into Aboriginal communities and consult with the communities as a whole and ask them what diversionary programs will be best for their community?---Yes. And I would like to think that at times that has happened already. If you look at the example of the Tiwi Islands where we worked with them for many years on the skin group model in the way they approach diversion, that’s been very much community driven. So yes.


5

10

15

20

25

30

35

40

45

And is – as far as you’re aware, will the government commit to doing that after this Royal Commission is completed?---I couldn’t say. I would hope so, but I couldn’t say.

Just one final question – topic in relation to trauma informed practice, you note at paragraph 138 of your statement that members of the Youth Diversion Unit have received training in trauma informed practice in 2015 and restorative justice training in 2016?---Yes.

You would applaud that initiative; correct?---Yes, I actually organised it for them. Not that that should reflect on me so much, but, yes, we all agree that that’s required and into the future we’re looking for that to continue.

Okay. And because that leads to a greater understanding of the cause of offending and how to address it; correct?---Yes.

Do you agree that often police interacting with a young person are general duties police, they’re not specific youth detention – youth unit police?---Yes.

And sometimes those police are police in the communities who haven’t again had that specific training?---I couldn’t say. I suppose so.

Do you think it would be good idea, then, to introduce trauma informed training and training on restorative justice as a model for all police in the Northern Territory who would interact with young people?---As I said earlier, previously all police were trained in restorative justice some time ago. We ideally would be rolling that out gradually again, but reality is it is not possible to train a force of 1500 in one – so it’s a gradual thing. In relation to trauma-informed practice, I guess the agency would have to take that on notice. But - - -

But is that something that you think would be a good idea?---I don’t know about all police, but certainly it would be helpful, perhaps, to have youth-specific officers at different stations who have got those skills, and that’s something that has been discussed internally.

And helpful for police who are in contact with young people and making decision about diversion to have trauma-informed training?---As part of that, either that or referring back to officers that have that skill, yes.

Thank you?---More widely available, I suppose, is what you’re inferring, so yes.

Thank you.

COMMISSIONER WHITE: Yes, Mr Jacobi?


.ROYAL COMMISSION 10.5.17 P-3740 J.A. RENFREE XXN©Commonwealth of Australia MR JACOBI

5

10

15

20

25

30

35

40

45

MR JACOBI: I just want to clear a matter up that arose from the document that was headed Review of the Department of Correctional Services. And perhaps if that can be pulled up. It’s headed Program Name: Youth Diversion Grants Program?---Yes.

Do you have that document in front of you?---No. Yes. I do now.

Just very, very quickly, is the youth diversion grants program a program administered by Northern Territory police?---No. It was established by Northern Territory police. It has moved to five or six different agencies since 2006 or ’07.

Alright. And is the particular document you’re looking at here a Northern Territory police document?---No. It’s correctional services – well, actually, to be honest, I’m not sure because it says review. It’s not our document. No.

Alright. Now, the document refers to program facilitators of the youth diversion grants program?---Mmm.

Am I correct in understanding that program facilitators aren’t employees of Northern Territory police but in fact employees of the people to whom receive the grants?---Yes. Can you show me where that is? Sorry. I have only got the first page at the moment.

If you can come over to – this is the issue I want to clear up. If you can look at page 2, there’s a reference to program facilitator qualifications?---Yes. Yes. Thank you.

Am I right in understanding that the position of a program facilitator is a person that runs a program to whom a grant is given?---Yes. I would say that’s right. I haven’t actually seen that term used as such, but yes.

And the particular passage I wanted to come to which was the subject of a question is the second paragraph. It refers to minimum qualifications required for facilitators are the same as for youth workers?---Yes. That’s the one I queried before. I don’t quite understand what that means. I took the facilitators to be in terms of restorative justice facilitators.

COMMISSIONER WHITE: It looks a bit like that in context, doesn’t it?---Yes. Yes. It does.

MR JACOBI: And are you able to say whether the reference there to program facilitators are to Northern Territory police employees or to employees who facilitate the programs to whom the grants are given?---I would have to assume it’s the grants. Yes.

I have no further questions.

COMMISSIONER WHITE: Alright. Thank you. Ms McGee?

.ROYAL COMMISSION 10.5.17 P-3741 J.A. RENFREE XXN©Commonwealth of Australia MR JACOBI

5

10

15

20

25

30

35

40

45

MS McGEE: No re-examination, Commissioner. If the witness can be released.

COMMISSIONER WHITE: Nothing more? Yes. Thank you, Ms Renfree, for your assistance to the Commission. We are most grateful for the trouble you have taken in preparing all that material for your statement. Thank you very much?---Thank you.


MS McGEE: Commissioner, our vulnerable witness arrangements have been somewhat delayed. Ms Rodger is available to proceed with the next witness, Ms Crombie.

COMMISSIONER WHITE: Yes. Alright. Well, I think we will keep moving, then, and we may have to interrupt Ms Crombie, Ms Rodger, but - - -

MS RODGER: I understand.

COMMISSIONER WHITE: - - - we will – I, think, in the interests of using our time, we will keep going.

MS RODGER: Yes.


MS RODGER: I call Loretta Crombie.

<LORETTA CROMBIE, SWORN [3.21 pm]

<EXAMINATION-IN-CHIEF BY MS RODGER

MS RODGER: Ms Crombie, you made a statement dated 4 May 2017?---Yes.

And if you just have a look at the screen. Is that your signature?---It is.

And is that statement true and correct?---It is.

I tender statement 22, Commissioners.

COMMISSIONER WHITE: Exhibit 364, Ms Crombie’s statement.

.ROYAL COMMISSION 10.5.17 P-3742 L. CROMBIE XN©Commonwealth of Australia MS RODGER

5

10

15

20

25

30

35

40

45

EXHIBIT #364 AFFIDAVIT OF LORETTA CROMBIE

MS RODGER: Now, you are manager of the Youth Justice practice at the Department of Justice and Attorney-General in Queensland?---Yes.

And you’re responsible for the conditional bail program?---I’m involved in reviewing the conditional bail program as it’s delivered across the State.

So you have an oversight role?---That’s correct. Yes.

And the purpose of that program is to avoid young people going into detention on remand?---Yes. As an alternative to remand.

Can you explain who is eligible for the program?---Sure. The program is targeted for young people who are at very high risk of going into remand. So ordinarily it’s young people who are screening as high risk of reoffending.

And does the program assist people that are low risk?---Ideally not. We do some situations where people are lower risk may be referred to the program, but the target is those who are very high risk. Because of the nature of the support and the supervision structure that the program entails and the evidence around high risk young people should have high intensity programs, it’s far better targeted for that high risk group.

When you say ideally not in terms of referring low risk young people, can you explain why?---So in terms of the low risk young people, the referral process to go to conditional bail is ordered through the court. Ordinarily we try to encourage young people to have other bail options afforded to them before getting to the point where they have several conditions added to their bail, just because developmentally we acknowledge that for young people in adolescence between the ages of 10 to 17 they are far more likely to be impulsive and less likely to be thinking about longer term consequential thinking. And so we would prefer not to have onerous bail conditions for those young people in case they breach them and are inappropriately escalated through the youth justice system.

So is it fair to summarise what you have said in this manner: it’s ideal not to have row risk young people on the program because they then have more involvement with criminal justice system because of potentially breaching onerous bail conditions?---That’s right. Yes.

So it’s a pretty small cohort that you’re assisting; is that fair to say?---It is. Yes. On average per year it’s about 300, 350, or just above that.

And you said before it was a court-ordered program. It’s correct, isn’t it, that there’s an initial referral from a court which you attempt to deal with on the same day when the young person is at court seeking bail?---Yes. So we have just changed our


5

10

15

20

25

30

35

40

45

procedures in Queensland recently. So that if a court does order it, order a conditional bail program to reduce the amount of time a young person may have to go into remand while they’re waiting for a conditional bail program to be developed, the court can stand the matter down for a few hours, during which time we will interview the young person and their family and try to come back with a fairly simple version of a program that can identify their risk and needs and assure the court that we will continue to develop a more comprehensive program over the next week or two of interacting with the young person.

COMMISSIONER WHITE: And is that limited geographically, that program?---No. It’s not. In Queensland we have 26 youth justice service centre points that are scattered throughout Queensland, and they can provide a conditional bail program to young people throughout the state.

So effectively where ever there’s a Magistrates Court?---Yes. That is correct, your Honour.

MS RODGER: We might just stay with that topic for a moment. You do assist remote areas, don’t you, in Queensland?---We do. Yes.

But can you speak about the hardships of delivering services in remote communities?---Yes. As the Commission has already heard several times, I suspect, the quality of a program is dependent on services and programs available within each community and obviously the more remote locations have far less access to programs that we can link young people into, and one of the key things that we try to do for a young person who is on a conditional bail program where ever possible is to link them in with community elders or programs, community-based programs that the young person can be involved in far beyond the length of any youth justice order or youth justice involvement.

You say in your statement that it’s particularly important in Indigenous communities. Can you expand on that a little?---Yes. So because of the range of activities that we can provide in a conditional bail program, we find that for Aboriginal and Torres Strait Island young people being able to offer options like the restorative justice programs or linking them in with cultural monitoring and elders within their community that often provides a lot more connection for those young people in relation to their wider community. It helps them in relation to having more supervision and support, and also for those young people who may feel – become disconnected from that cultural group, it’s a really positive aspect for us to build that sustainable link, as I said. So when youth justice steps out, that young person is supported by their community.

And that may assist in them not reoffending and the like?---Yes. We have seen really great examples of that.

COMMISSIONER WHITE: Have you actually got some hard data evaluating this conditional program?---The conditional bail program? We did a review last year.


5

10

15

20

25

30

35

40

45

The review concentrated largely on the effectiveness of the program as an alternative to remand, and we found that 50 per cent of the young people who were placed on conditional bail program would definitely have gone into remand if it were not for the condition bail program, which was significant success for us when we are actively trying to ensure community safety but reduce as much as possible a young person being placed in remand if it’s not appropriate.

MS RODGER: In relation to the court, you said you do that initial assessment and report for the court but then in fact it’s then adjourned and you do a more detailed conditional bail plan. In the statement you talk about how important it is to develop a partnership with a young person. Can you explain what’s involved in that process?---Yes. Sure. I should clarify for – in terms of when we do a more detailed program, ordinarily, just so we are not clogging up the courts, we try not to have to bring it back, bring the more detailed conditional bail program to the court. So if the courts approve a generic CBP, the more detailed program is one that we deliver to the young person and their family on a weekly basis rather than actually bringing them in to the courts. But in terms of why it’s important to have a young person involved in the development, as I said, mentioned before, we really don’t want to be setting a young person up so that they have so many conditions that they’re unlikely to be able to fulfil those conditions. So it’s really important to first make sure that any sort of programs that we are linking the young person in are matched with their risks and needs, and also that they have interested buy-in to want to address or be participating in those programs.

Can I take you to annexure LC3 of your statement and in particular page 7. It’s going to come up on the screen there for you?---Yes.

Could you explain what that document is, firstly, and then talk us through some of the entries?---Yes. Definitely. So this is an example of a detailed conditional bail program schedule that is often attached to a conditional bail program. I should state this example is very evidently for a very high risk young person, as you can see. It’s quite detailed and ideally we would want to be reducing that level of detail to in programs as a young person progresses through their CBP. So the example that you have in front of you talks about the different components for the young person that this program was developed for. Obviously we are showing up when we were doing our YLCMI assessment to have employment and educational risks, family risk and some anger management issues. So the CBP was scheduled to run from 9 am to 1 or 2 pm every day. So that’s contact with a youth justice officer who will go and pick the young person up in the morning at 9 am, take them through a range of different programs that have been specifically designed for that young person and then take them back, transport them back home at the end of the day.

And it’s very comprehensive in the sense that it assists them with things all the way from organising a bank account, to education, to drug and alcohol counselling, if that’s what they require?---Yes. Absolutely. Often for these high risk young people, they have quite complex and challenging life styles and haven’t had very much support to be able to develop things like résumés or employment letters, etcetera, that


5

10

15

20

25

30

35

40

45

we often take for granted. So it’s really important when we’re doing a CBP assessment to really identify exactly what the young person’s needs are and help them from square one onwards.

So this is the case management aspect of the program, but you’re also able to assist young people in terms of accommodation?---Yes. So often we have two elements of accommodation for a young person who is on bail. We have some funded NGOs in Queensland who provide accommodation support. So they’re bail support services that are funded in Brisbane, Mount Isa, Townsville and Cairns. And we also – then our youth justice service officers who work with the young people as well may also provide additional support if the young person isn’t in stable accommodation.

In your statement, you mention that Queensland has no breach of bail offence and I think we have covered already the fact that conditions, for example, like curfew conditions, non-association conditions with other young people, they are the kind that sometimes young people can breach and end up in remand. When a child on your program does breach one of the conditions, how do you deal with that?---So, as I mentioned before, we try to take as much of a developmental approach for these young people as possible and acknowledging that, as you would have seen in the example on there, it can be quite challenging for even some of the most competent of us to follow such a detailed program. So we try to meet with the young person and try to determine whether it was an accidental or impulsive issue that led to them breaching their bail or whether there is a more significant issue that we need to address. If it is something that is far more significant, we do offer firstly an informal warning with the young person, and try to engage the family with that – in that process as well. If there is a continuing breach, then under our Youth Justice Act we would provide a formal warning and a formal warning letter to the young person and their family outlining what that breach has been. And then later if there is a continued breach, we can take that back to court and determine between all the parties within court whether the bail should be amended, revoked or continued.

But, again, the aim of the program is to do everything you can to keep the young person out of remand?---Absolutely.

In your statement, you talk about, and it may sound like an obvious question, why is it important to keep a young person out of remand?---So we have done some – I know that the Commission has recently had Vincent ..... talk around some of the negative impacts of young people being held in detention internationally and obviously that happens nationally as well. And we are of the view in Queensland Youth Justice that any time that a young person spends on remand can have significantly negative impacts. We have significant data that shows that even if a young person is in remand for only a short period of time overnight, they are a significantly higher risk of being remanded again in the future. And the second remand period will be much longer period. Once they are in detention, whether it is for a short period of time or not, they’re connected with peers who may have pro-criminal attitudes, which increases their likelihood of reoffending. They can get disconnected from education, so even though that remand period might not show up


5

10

15

20

25

30

35

40

45

on formal records, the fact that they may get enrolled into an education facility in a detention centre can show up in the education enrolment records later on, which can lead to exclusions. There’s disconnection from family and community. So there’s quite a long list of reasons why we think that remand, unless it’s absolutely essential, is quite detrimental to a young person.

And just finally, are you able to comment on the relationship between the lack of accommodation and substance abuse on recidivism and remand?---Yes. So, I guess one of the things that we hear quite regularly from decision makers in relation to whether they would grant remand or bail is often consideration of whether the young person has stable accommodation and/or any evidence of drug and alcohol use. That is something that we have tried to work quite hard to reduce the likelihood. We have had amendments to our legislation that was specifically stating that welfare reasons shouldn’t be a reason for a young person to be remanded. However, understandably, also the decision makers talk about the concerns that arise when a young person is – doesn’t have stable accommodation or is involved in drugs and alcohol. The limited access for young people to access safe and stable accommodation and/or drug and alcohol appropriate programs can create quite a challenge for us to get a balance right in relation to determining community safety or not. So, for example, we have young people who would be quite – would be ideal to go into a drug and alcohol program, but because of cognitive impairments, they’re not necessarily going to engage with some of the standard drug and alcohol programs that we have. And so we don’t have programs that adequately address youth-specific needs and/or some of the specific issues that a lot of the young people in youth justice have such as traumatic backgrounds, cognitive impairments, mental health, etcetera.

And how can that be addressed in your view?---Definitely through more funding for those programs in the community.

COMMISSIONER WHITE: Would you think that to be effective, a drug and alcohol program would, for young people, would need to be residential or should it be of some other kind?---I think it varies, depending on the different target groups. We have had a look in Queensland, and for our cohort or demographic, we have looked at a combination of accommodation based withdrawal and detox services and/or day programs as well. It becomes quite difficult for young people, for example, in remote communities to go to residentials because of the obvious limited access to different residential services; most of them would be in more metropolitan areas. So taking a young person out of community for a long period of time can obviously have a re-integrative – negative impact on their reintegration.

Are there any programs for young people tailored just for them for drug and alcohol and other dependencies that can go to communities outside the main metropolitan area; that is, go in and deliver the program over a couple of weeks as a day program because they’re living in their own place?---Yes. To be honest, it’s not an area that I have too much knowledge of. I am aware of some NGO funded programs that we have, particularly in far north Queensland, that do quite a diverse range of programs, but I don’t have detailed knowledge around what they look like.


5

10

15

20

25

30

35

40

45

And a rather different question but still on what I would call bail accommodation: where there is, in fact, nowhere suitable for the young person to live, but also not appropriate that they should be, for that reason, put on remand, what options do the placement people in your team have?---So, we have tried to foster strong relationships with child safety, particularly our trouble, or challenge for accommodation for young people is typically for young people under the age of 16 because a lot of the SAP services are provided for those who are only over 16. So for the 10 to 16 cohort, 10 to 16 year old cohort, we typically think that there is a role for child protection services to be involved in trying to find a safe accommodation for those young people. And as noted in my statement, we also do have some bail accommodation support services that can provide some accommodation for those young people.

Is it always difficult, though, to find – because it’s usually in a hurry, isn’t it, you have to find accommodation?---It’s usually 4 o’clock on a Friday afternoon. Yes.

That’s right. So it is a problem?---Yes. It is.

Thank you. And I’m not sure whether this is within your field at all, but after a young person has exited detention, may very well not have a suitable home placement?---Yes.

Can you tell us anything about what happens there with those arrangements, if any?---Yes. So in Townsville we have a supervised community accommodation that’s delivered by Mission Australia – I believe may be giving evidence later this week – and that’s particularly for young people coming out of detention on remand to help provide them with some accommodation for up to six months after leaving detention and transition them into longer-term accommodation. We have also been doing quite a lot of work internally within youth justice to look at how restorative justice like conferences can be held with a young person and their family to help prepare them for as a transition when they are returning from detention, where there may be opportunity to reconnect those young people through a process like that.

But it’s an interesting time to actually structure a conference of that kind, isn’t it?---It is. And it would be a conference outside of the legislation, obviously. So it wouldn’t be a court-ordered or a police-referred conference.

Ms Rodger?

MS RODGER: Commissioners, I don’t have any further questions and I think all that remains is to thank the witness for her assisting.

COMMISSIONER WHITE: Yes. Very well.

MR LAWRENCE: I have actually - - -


5

10

15

20

25

30

35

40

45

MS RODGER: Commissioners, Mr Lawrence has raised earlier an application for cross-examination. No such application has been received.

COMMISSIONER WHITE: You know the rules, Mr Lawrence.

MR LAWRENCE: No. No. No. Well, I gave it to Mr McAvoy in person this morning. I sent it. I don’t know how it hasn’t been received. But I can articulate it now, if it please the court. In view of this witness’s expertise concerning the conditional bail program, it sounds like a grand idea. We would dearly like to put to this expert the circumstances involving AD, which did include bail, and, indeed, I don’t know if the Commission is aware of the fact that when he was in detention in the BMU unit from 6 to 21 August, the youth justice magistrate did in fact order, presumably pursuant to the Bail Act, a bail assessment, and he was in fact assessed by a correctional officer on two days, interviewed at Don Dale on the 11th and the 13th of August.

And she eventually produced a report which I would be seeking to tender, which in the event is negative as to his – the department’s ability to supervise any conditions that would attach to any bail he was lucky enough to get. And that was brought before the learned magistrate on the 15 August and that material I only received yesterday from the adverse tender bundle which includes the court file copy, which confirms that. And what I would like to do, and I think - - -

MS RODGER: Might I interject there. Documents were received from Mr Lawrence but no application in relation to cross-examine or an indication of questions wanted to be asked. Now, that I understand that’s the material that he is talking about, it really is outside the issue of systemic issues that the hearings are addressing this week. The documents can be dealt with in the appropriate manner in due course.

COMMISSIONER WHITE: Yes. Thank you. It’s a little difficult to see how the particular instance of the – of your client’s bail can be a matter for someone from another jurisdiction, Mr Lawrence. Putting to one side any failures to comply with the direction about the cross-examination, you may say it’s an interesting hypothetical that you might like to put or something of that kind but I think not in those circumstances, but there is certainly no reason why the documents which have just received by this system can’t be - - -

MR LAWRENCE: I’ll tender that - - -

COMMISSIONER WHITE: No. I don’t want you to do that.

MR LAWRENCE: I’ll do it through Counsel Assisting. Yes. I will do that properly.

COMMISSIONER WHITE: You can discuss it with counsel, but it can be the subject, of course, of your submission as well.


5

10

15

20

25

30

35

40

45

MR LAWRENCE: Yes. The reason why I do persist, inevitably, is that I really think it would be of assistance to the board to posit AD’s journey and have this expert, an expert she is, she has been in the field for 10 years, tell the board what the bail conditional program would have done in that situation, which I would have thought, albeit not knowing the answer to the question you’re asking would be confident that he would have gone a – different things would have happened to him and it would provide very valuable evidence for the board to consider any recommendations which might suggest a replication of the Queensland regime.

MS RODGER: Commissioners, I’m loathe to interrupt again, but we have the vulnerable witness waiting.

COMMISSIONER WHITE: Thank you. Just let me make my ruling about Mr Lawrence. Mr Lawrence - - -

MR LAWRENCE: I didn’t realise there was a vulnerable witness. My timing is dreadful as usual.

COMMISSIONER WHITE: Not so good, but it doesn’t matter. You weren’t to know that. Mr Lawrence, I would – in any event would rule that it’s not a suitable question to be put to this witness. It’s a hypothetical. It’s an individualised case and I would be surprised if she would even be prepared to entertain such questions and she is certainly quite entitled, as a witness, to say it’s not the kind of question that she is qualified to answer. She is here for our assistance. There’s no doubt that at many points in your client’s engagement with the justice system, a different decision would have led to vastly different outcomes. I think we don’t have any doubt about that. This is one particular instance that if there were a different bail regime in the Northern Territory, things may have been different. So the application is refused. But thank you for drawing it to our attention.

MR LAWRENCE: Thank you, Commissioners.

COMMISSIONER WHITE: Have we otherwise concluded the questions for Ms Crombie?

MS RODGER: We have, if we can thank her for her attendance.

COMMISSIONER WHITE: Indeed. We are most grateful to you, Ms Crombie, for coming to our Commission from Queensland and sharing with us the innovative program of conditional bail that you have there, and it will be of considerable assistance to us in our deliberations?---Thanks very much, Commissioners.

Thank you.



5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Now, we need to adjourn while the court is reconfigured for the next witness. So I think it’s always 15 minutes, so we can’t make it any faster. Thank you.

ADJOURNED [3.48 pm]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

MATTER ADJOURNED at 4.28 pm UNTIL THURSDAY, 11 MAY 2017


5

10

15

Index of Witness Events

JARED NATHANIEL SHARP, RECALLED P-3651EXAMINATION-IN-CHIEF BY MR McAVOY P-3651CROSS-EXAMINATION BY MS GRAHAM P-3658

THE WITNESS WITHDREW P-3662

IAN LEA, AFFIRMED P-3663CROSS-EXAMINATION BY MR MORRISSEY P-3663CROSS-EXAMINATION BY DR DWYER P-3678CROSS-EXAMINATION BY MS GRAHAM P-3684CROSS-EXAMINATION BY MR JACOBI P-3687


CRAIG LAIDLER, AFFIRMED P-3688EXAMINATION-IN-CHIEF BY MR MORRISSEY P-3688CROSS-EXAMINATION BY DR DWYER P-3705CROSS-EXAMINATION BY MS GRAHAM P-3706CROSS-EXAMINATION BY MR JACOBI P-3709


MATTHEW McKINLAY, SWORN P-3712EXAMINATION-IN-CHIEF BY MS McGEE P-3712CROSS-EXAMINATION BY MR JACOBI P-3722CROSS-EXAMINATION BY MR O’CONNELL P-3723


JENNIE ANNE RENFREE, AFFIRMED P-3726EXAMINATION-IN-CHIEF BY MS McGEE P-3726CROSS-EXAMINATION BY DR DWYER P-3735CROSS-EXAMINATION BY MR JACOBI P-3740


LORETTA CROMBIE, SWORN P-3742EXAMINATION-IN-CHIEF BY MS RODGER P-3742


Index of Exhibits and MFIs

EXHIBIT #356 STATEMENT OF JARED SHARP DATED 21/03/2017

P-3661

EXHIBIT #357 PRACTICE DIRECTION NUMBER 2 OF 2016 P-3662

EXHIBIT #358 THREE GLADUE REPORTS P-3662


5

EXHIBIT #359 STATEMENT OF IAN LEA AND ADDENDUM DATED 10/05/2017

P-3664

EXHIBIT #360 STATEMENT OF CRAIG BRADLEY LAIDLER P-3689

EXHIBIT #361 TASK FORCE TRIDENT 2017 CONCEPT OF OPERATIONS

P-3689

EXHIBIT #362 AFFIDAVIT OF MATTHEW McKINLEY P-3712

EXHIBIT #363 AFFIDAVIT OF JENNIE ANNE RENFREE P-3727

EXHIBIT #364 AFFIDAVIT OF LORETTA CROMBIE P-3743
