Transcript 9 May 2017 Web view.ROYAL COMMISSION 9.5.17P-3568K. ENGELS XN ©Commonwealth of AustraliaMR MORRISSEY.ROYAL COMMISSION 9.5.17P-3589K.M. WELLS XN ©Commonwealth of AustraliaMR

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TRANSCRIPT OF PROCEEDINGS

O/N H-773110

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

11.26 AM, TUESDAY, 9 MAY 2017

Continued from 8.5.17

DAY 35

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MS. R. RODGER, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND 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 SharpMS SWIFT appears for Shahleena Musk

.ROYAL COMMISSION 9.5.17 P-3554©Commonwealth of Australia

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MR. J. LAWRENCE QC appears for AD


CLOSED SESSION ENSUED

[REDACTED INFORMATION]

PUBLIC SESSION RESUMED

MR MORRISSEY: Good morning, Commissioners. I call Kirsten Engels.

<KIRSTEN ENGELS, SWORN [11.26 am]

COMMISSIONER WHITE: Thank you. Would you kindly be seated now, Ms Engels.

<EXAMINATION-IN-CHIEF BY MR MORRISSEY [11.26 am]

MR MORRISSEY: Ms Engels, would you state your full name please---My name is Kirsten Laurel Engels.

And what is your occupation and your rank?---I’m a detective sergeant with the Northern Territory Police Force, my rank is detective sergeant.

Yes.

COMMISSIONER WHITE: Mr O’Mahoney, are you appearing.

MR JACOBI: I make no claim to be Mr O’Mahoney. No one could step into his shoes. Mr Jacobi, from .....

COMMISSIONER WHITE: Mr Jacobi, I do apologise terribly. I actually do know who you are. I must have been thinking of your colleague.

MR JACOBI: I will take it as a – I will take it as a promotion.

COMMISSIONER WHITE: Alright. Thank you.

MR MORRISSEY: Thanks.

Ms Engels, for the purposes of these proceedings, did you prepare a statement dated 22 March 2017?---Yes, I did.

.ROYAL COMMISSION 9.5.17 P-3555 K. ENGELS XN©Commonwealth of Australia MR MORRISSEY

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And have you had the opportunity to read that for the purpose of today’s proceeding?---Yes, I have.

Are the contents of it true and correct?---Yes, they are.

I tender that statement, Commissioners. It has been rather heavily redacted.

COMMISSIONER WHITE: Yes. I just need to adjust some exhibit numbers from the last session, Mr Morrissey, so let me correct those first. What I had allocated 342 to should be 344. That is Mr Lima’s statement, and 345 for Mr Clee’s statement, and 346 for Mr Hansen’s statement, so Ms Engels’ statement will be exhibit 347. My apologies too everyone for that error.

EXHIBIT #344 RESPONSIVE STATEMENT OF LUIS LIMA DATED 22/03/2017

EXHIBIT #345 RESPONSIVE STATEMENT OF JAMIE CLEE DATED 15/03/2017

EXHIBIT #346 RESPONSIVE STATEMENT OF TREVOR HANSEN DATED 13/03/2017

EXHIBIT #347 STATEMENT OF KIRSTEN ENGELS DATED 22/03/2017

MR MORRISSEY: Thanks. In addition to that, did your statement respond to the comments made in a review document?---In part, yes, they did.

In part?---Yes.

And have you had a chance to look at that review document, as a way of explaining what your statement is talking about?---Yes, I have.

Yes, thank you. Commissioners, I tender that review document. That likewise has been heavily redacted in, we hope, appropriate manners.

COMMISSIONER WHITE: Yes, thank you. Exhibit 348.

EXHIBIT #348 REVIEW DOCUMENT


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MR MORRISSEY: Commissioners, could I just mention something. Because there will be cross-examination – or examination of the witness concerning certain interviews that were gained in the course of the investigation, the witness has had the opportunity to read those before coming to the Commission and has hard copies of them before her, when I take her to them. Could I identify for the record, that the matters – that the exhibits to which she will be taken are, firstly, 64.276, which is the transcript of the sworn witness statement of AT, the vulnerable witness known as AT.

COMMISSIONER WHITE: That’s already an exhibit, is it not?

MR MORRISSEY: It is, but I think it’s important just to identify these now, because – for coherence purposes.

COMMISSIONER WHITE: Yes, indeed.

MR MORRISSEY: Secondly, exhibit 64.279A is a transcript of a witness interview with a young person, for our purposes here to be known as XX. 64.294A is a transcript of interview with a young person to be known in this questioning as YY. And finally, reference will be made to exhibit 64.301A, a record of interview conducted between the witness and Mr Zamolo. Just to be clear, this material in this sequence of questioning relates to the investigation and not primarily to Mr Zamolo himself at all and will be confined to that area.

Thank you. Now, Ms Engels, you became the officer in charge of investigating allegations made by the young person AT; is that correct?---That’s correct.

You did not assume that role until some 15 months after the initial complaint was made; is that correct?---A number of months, yes.

Yes. And so others had carriage of the investigation earlier and, in fairness to you, it is the fact that although you were the corroborator on an interview on September – sorry, I will take a step back. 23 September there was an interview done with AT?---Yes, that’s correct.

That’s the document which contains the allegations that he made and which you found yourself investigating?---Yes. That’s correct.

And you were the corroborator; is that right?---That’s correct.

But you were not the officer in charge of the investigation at that point?---That’s correct.

You assumed that role later?---Yes, that’s correct.

Yes. Thank you. Alright. Now, just – I want to deal with two aspects in my questioning of you and it’s really limited to the two allegations that he made. I will


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pursue those through, and then ask you some general questions at the end, and that’s your evidence?---Okay.

Is that okay? Now, so the two – so on that – in that interview, AT made a number of troubling allegations of conduct to which he had been subjected whilst in Don Dale; is that correct?---Yes.

And among those were, firstly, an allegation that he had been filmed by Mr Zamolo whilst he was in the shower; is that correct?---That’s correct, yes.

And there was said to be a sexual component to that, because the allegation was that he was filmed whilst masturbating?---The fact was, yes, he stated that he thought he had been videoed whilst he was masturbating in the shower.

Well, he said he – I will take you to the interview of what he specifically said in a moment?---Sure.

Anyway, you are aware of that allegation. You recall that; is that right?--- .....

And you’ve had your – you’ve had the chance to read over the interview and some of the evidentiary material, obviously not at all, for the purpose of today’s proceeding?---Yes.

Tell us when you’re caught at a disadvantage over not recall a particular thing. That’s fine?---I will.

The other allegation was one concerning an assault that he alleged that was said to occur when he was at a water bubbler and he said he was hit three times with a torch on the knees, that he fled to the kitchen where there was said to be cameras. That he was, his term, “clotheslined” by an officer named Walton, and that he then returned to his room where he was further assaulted by Zamolo; is that correct?---Yes, I recall that, yes.

Alright. So I’m going to take you through those. Now, in the interview, and perhaps we could go – perhaps I could ask you just to turn to the interview now. I want to establish the facts of what he said, what the nature of the allegation was, at the start. So I’m going to be taking you through his interview now for some minutes. Alright. Do you have that in front of you?---Yes, I do.

Could you turn to page 2 please. Now, when you conducted, when I say you, I mean you collectively with Ms Hutchison, who was the interviewing officer who you were corroborating; correct?---Yes.

This interview was taken on oath; is that correct?---Yep – yes.

That was – you can tell – well, it was seen that that was the appropriate course to take, given that he was a young person and he was giving his account orally?---Yes.


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Yes, thank you. And that’s why that was done?---Yes.

You don’t do that with a suspect, do you?---No.

And so that wasn’t done with Mr Zamolo when he was interviewed?---That’s correct.

Now, can I just take you through – now, I want to take you to the filming allegations. I will take you to specific parts of it. Could you look at page 3, please, and here Commissioners I will be reading some of this onto the transcript, but it’s important to set it out because the witness has taken action based upon it. Here, he describes – about halfway down the page, you will see it’s said:

We were all having a wank and Conan walked in and pulled out his phone and started recording it, because he thought it was funny because we were standing on our tippy toes.

You see that?---Yes.

Look at the next answer too, and he says:

He has told us that he sent it to everyone on Snapchat.


At this point you had an allegation that Conan had pulled out his phone and started recording; correct?---That’s right.

You also had evidence of an admission he had not merely filmed but sent it to everyone on Snapchat?---Well, no. I didn’t have evidence, I had an allegation made. I don’t believe that was evidence.

Well, wait a moment. You’ve got a sworn account from a potential witness that something happened; correct?---Yes.

That’s the basis of many sex offences you proceed to charge; correct?---Certainly is, yes.

So a sworn allegation is good enough to constitute evidence, isn’t it?---Okay. Well, yes, alright. Well, that – that was the beginning of the evidence, yes.

Yes. That’s what you had here at this point?---That’s what I had at that point.

Yes. Alright. Let’s press on. Could you go to page 38, please. And I appreciate – while you are doing this, I will just acknowledge there are other matters concerning other alleges before that time, so I will take you to 38 because that’s where this matter seems to resume. Now, at 38, the following appears. This is about 10 lines from the top. You will see he says this:


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I grabbed my towel and stuff that was on top, and went into the shower, and all the boys in there, they were all having a wank and that, and Conan come in with his phone and pulled his phone out because me and –

a name, I won’t read out the names. Okay. “Me and” another person:

…we all stood on our tippy toes. I don’t know why. Yeah. He thought it was funny. He started recording us and stuff and walking around the bath – walking around the bathroom in the shower recording us and that.

COMMISSIONER WHITE: No, Mr Morrissey. That’s not redacted on the copy that’s up on the screen.

MR MORRISSEY: Could we – could that be taken from the screen if that’s the case. If – the Commissioners having noted that, that raises the possibility there will be more, so we won’t have that on the screen, but I will read with verbal redaction and the witness knows not to say the name of the person.

COMMISSIONER WHITE: Yes.

MR MORRISSEY: Thank you, Ms Engels. Alright. So do you say there on page 38 the passage I’ve just read out to you, he renews the allegation that Conan was filming?---Yes.

If you go down to the page to the – there’s a paragraph beginning, inaudible, “when we finished”, do you see that?---Yes.

So third line there – second line there he says – well:

We come out of the shower, yes. He was – he showed us, told us that he sent it to other people and everything.

Do you see that part there?---Yes.

Once again, there you have an accusation that Conan Zamolo admitted sending it; correct?---Yes.

If you go over the page now to 39, please. If you look at the third passage of conversation you see Hutchison says, “Okay.” And then AT says:

Yeah. He showed me that he recorded it and stuff.


And then it goes on to say – he explains more about that. He says – Hutchison asks:

Tell me about him showing you recorded .....


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And he says:

We were all standing up brushing our teeth and that right there at the sinks, and after our showers brushing our teeth and that, and we all started talking about him recording us and stuff and he was like, “Here, look I did.” And quickly showed us and then when all of us boys seen it we tried taking the phone off him so he quickly shut the app and put it in his pocket and walked out again, because we were all trying to grab it off him and have a look.

Now here you have repeated, but in somewhat more detail, the accusation that Conan Zamolo actually acknowledged that he did film; correct?---Yes.

Now, further down the page, the question is asked:

When he showed you, what did you see?

And Hutchison says, “In as much detail as possible,” and AT says:

Me, the wall and he was walking around like I was saying and everything and you could see my back and my bum, my legs, my arms, the back of my head.

Do you see that part?---Yes.

So you see there what he is identifying what he saw on the film, which was that “you could see my back and my bum, my legs, and my arms.” Correct? And just to jump forward to another witness, you are aware that another witness who says they saw an image also described seeing something similar, I think it was described as “his arse”, but a similar shot?---I can’t recall.

I will take you to that soon, that’s okay. That might be a bit – alright, thank you. Could we go then to page 40 and ask you to note there, the third line the question was, “So you were naked?” Answer, “Yes.” You see that?---Yes.

So at this point of the interview what you have got is a clear accusation that Zamolo filmed, that he filmed while wanking, masturbating, that the image that he showed revealed a naked view from behind of the bum, or to use the other witness’ term, the “arse”, of AT; is that correct?---Yes.

That’s what you had at that point. Now, if we could go to on page 42 and 43, what I don’t want you to name anyone – I don’t want you to name anyone. If you just briefly run your eyes over that, do you see that he identified a number of people who he said could have been present?---Sorry, 42?

I’m not asking you to tick off who they were, but just – you see there’s a couple of names mentioned there. Okay. Now have you been provided administratively with a list of pseudonyms?---Yes.


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Xs and Ys. So you would be able to, if needs be, to go to a particular person, you can without naming them?---Yes.

Alright. Thank you. Could we please go on to – so in any event, as an investigator, it was relevant to you to know that AT was saying these people were there when it happened?---Yes.

And you did note that and in fact you interviewed a couple of them subsequently?---Yes.

Thank you. Alright. Now, could we go to 46, please. Now, Hutchison asked the question halfway down the page:

How did you know it was being recorded?

Answer:

He told me.

Question:

What did he say?

Answer:

I looked and I seen it.

Hutchison says:

Okay. What did he say?

He said:

“I’m recording you and I’m putting it on Snapchat.”

Hutchison says:

Okay. And, once he said that, what happened?

All of us were telling him to fuck off and leave us alone.

Now, you recall that being said?---Yes.

And at that point the information now includes that the image was – that there was an admission that he had placed the image on Snapchat; correct?---Yes.


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At page 47 at the top, I just ask you to note once again here that when asked what did he see, he said:

Arse, and I was standing on my tippy toes facing the window.

If you look a little bit – sorry, and you – sorry, well, I will just point that one out now. If we go down, he continues describing what he can see, he says:

When he told us, I put my head back behind the wall just to see if he was doing it. That’s when he could just see my feet, you know, before he just – when has just entered, just started recording, and he was holding his phone up and he’s like, “See?” And then I looked.

So you will see the word “see” is in inverted commas?---Yes.

So you see that the witness AT, at that point, was indicating that – once again Mr Zamolo had actually shown him what was on the screen. Do you agree with that?---Yes.

If you go to page 48, please, do you see here there’s another reference to showing. So it said here:

How long did the video go for? How much of the video did you get to see?

Answer by AT:

Little bit, because after we were finished and we were standing there brushing our teeth and that, because he still had to watch us and stuff you know, and he showed us, all us boys. Tried grabbing the phone off him and, yes, he just put it in his pocket and walked back out.

So once again he was maintaining he saw what was happening and he saw the image on the phone?---Yes.

And furthermore, a bit further down the page, there’s this:

And when he said he was going to show everyone, what do you think he meant by that?

Answer:

Send it to everyone on Snapchat.

Okay. And what’s Snapchat?

A social website.


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Now, you have seen on 48 he says that. He said that before on 46 as well, as you recall. Now Snapchat, to your knowledge, is a social media application that involves the transmission and subsequent deletion of images; is that correct?---Are you asking is that what my knowledge of it is?

Yes?---Yes.

Yes. Alright. Thank you. Can we go over, please, to page 50. Question:

How many times did you see the video?

Answer:

Only that once.

Okay –

says the questioner –

I know you said you saw yourself in the video. Did you see anyone else?

Answer:

No, because it started off on me. Yeah. And it had been looking behind the thing when he said it had. He would have started it as he was saying that, “I’m recording youse” and everything. He would have started it before he said that.

Alright. So once again, you have the witness explaining the process by which he was filmed and the words said by Mr Zamolo; correct?---Yes.

And you’re aware that words said by a suspect or an accused, in due course, can constitute admissible evidence by of being an admission?---Yes, it can.

Yes. Go over to page 51 please at the top:

He didn’t let me watch the whole thing and he didn’t tell me what he officially did with it. He just said he’s going to send it and show everyone and that.

Once again he was maintaining that Zamolo had acknowledged and admitted that he had taken the film and that he was intending to pass it around; correct?---Yes.

And at page 54, you find this passage halfway down:

And then, when we walked out, we were just saying, “Don’t be a dumb cunt.” And then he’s like, “No, no. I deleted it – I deleted it.”


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I will just pause there. So at that point he’s – what AT was saying is Zamolo claimed to have deleted it; is that correct?---Yes.

And pressing further:

And then when we walked out of the room and we were all locked down, he walked back out here to come back to the office. As he was walking past our windows he was like. “I was talking shit to you, youse are so gullible.”

Question:

That’s what he said to you?

Yeah.

So obviously didn’t delete it? Okay? He was saying that he didn’t again?

So again you’ve got some details of admissions by Zamolo that he actually had done the taping – done the recording, I’m sorry; is that correct?---Yes, I guess the – one of the sentences there “I was talking shit to you, youse are so gullible,” I guess could be read a couple of ways.

That may be so indeed. Could you please go over to 55, and I’m drawing this to your attention because of the Snapchat issue. This is the third time Snapchat is referred to, but at the fourth passage on the page, you see question:

What was it recorded on? I think it was already on Snapchat. You had – you know how you click on Snapchat and how I said you got three seconds and all that?

Then you will see some explanation about Snapchat. And then at the bottom you went on to ask this question:

No, I understand. I’m just wondering whether it was videoed straight into Snapchat or whether it was videoed on his phone and then –

and you get the answer from AT:

It was videoed straight into Snapchat, and he did send it. I honestly don’t know how you’re going to get that.

Now, just on that topic, is it – have you made inquiries as to whether you can recover images from Snapchat, that were sent by Snapchat?---I know you can’t.

Yes. When you say you know that, how do you know?---I’ve – my experience within my unit, I’ve tried to get a variety of messages that have been deleted through various applications and I’ve not had any joy with any.


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Now, are you referring to when you search a phone - - -?---No.

- - - under a warrant one can’t recover things that were sent via Snapchat, but is there a way that you’re aware of, of approaching the service provider or some other body, to find such material?---I can tell you that I’ve tried to do it with Facebook Messenger, and I imagine it would be the same sort of process. What I’ve had to do is prepare an affidavit that goes to the AFP, to the Commonwealth, to America. They’ve come back and said, “You don’t have the right information on it.” It’s about a one to one and a half year process to gather deleted messages. So I guess I’m making an assumption that it’s going to be – and from what I’ve been told from other investigators, it’s the same sort of process.

Alright. Just to clarify that. When it comes to Facebook there can be a delay of a year to a year and a half to obtain material?---Yes.

But it can be obtained; is that correct?---Well, I don’t know. None of us have actually got right through to the end processes, as far as I know, in the Northern Territory.

You’re not seriously disputing that Facebook material can be obtained, are you?---I’m not going to answer that because none of us have managed to get any back so far.

Go on to page 56 – but – and when it comes to Snapchat though you haven’t made that inquiry, so you don’t know how long it takes?---Not Snapchat, no.

Alright. So what you had is you had – okay, thank you. Can we go, please, to page 56 here. And just to take this – this is the final bit of evidence I wanted to take you to about this. Question from you:

Why do you think he did this? Again, if I go to Conan and say, “Why did you do that?” What do you think his answer would be? What do you reckon?

And the witness said:

I reckon he with be speechless.

And you said:

About what?

And AT said:

There’s no really reason why you had record a kid having a wank. It’s not really funny, is it? I think if you did go and ask him, he would shit himself and know that he fucked up.


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That was the response, wasn’t it?---Yes.

Now, following that investigation – I’m going to jump away from this interview now, because I’m going to go through this allegation, we will come back to the other one shortly. Following that, you interviewed – you pursued the investigation, you tried to find out what you could find out; correct. Now, you interviewed – you ultimately interviewed Mr Zamolo; is that correct?---That’s true.

When you were interviewing, you put – you understood yourself to have the duty to put the relevant alleges to him and see what his responses were; correct?---Yes.

And that page 26 – and you can go to it if you want, I will read a passage to you, but if you want to look at the contents you can, that’s fine. But look at 26 of that interview. You were putting to him that other witnesses had said things that corroborated and you said this:

I don’t believe there has been any chance to corroborate that information between the two of them.

Do you see that part?---No.

Sorry, just take a moment and look?---Yes, I’ve found it, yes.


What you were putting to him, in effect, was, “Look, I’ve got two witnesses here.” In fact you – perhaps you had more, but you were putting to him, “Look, there’s no real chance of these people putting their heads together and coming up with a story.” Correct? That’s the thrust of the question you were asking. Just read it and see if you agree with me?---Yes – yep.

Alright. Sorry. Just give me one second. I just want the key for the names of the – thanks. Alright. Now, your investigation proceeded to interviewing a young man who’s on your list as XX; is that correct?---Yes.

I’m just going to take you to a couple of things that he says, but in short he said he saw, if you go to page 16 of that interview, please?---Yes.

Now, if you look down the bottom, I won’t read this out, just read it if you wouldn’t mind, and then tell me if you agree. What he was saying is that he saw Conan taking images or taking an image of AT, I’m sorry?---Yes, that’s what I read.

Okay. Furthermore – and if you look at 17, if you look at the second last, third last line, he describes seeing AT. I will read that out:

I just seen AT on tippy toes and his arse.


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Sorry, the question was:

What did you see on the screen of the phone?

He says:

I just seen At on tippy toes and his arse.

And that was it; correct? Do you see that?---Yes.

So that was a description of a similar image to what AT had described seeing; correct?---Yes.

So you’ve got two people saying they awe an image on Zamolo’s phone and the image is rather similar; correct?---Yes.

At least in terms of what it depicted. Alright. Thank you. He gave some other information at 21 he said on 21, he said, if you look at the top:

Then he showed Ben.

Do you see that?---Yes.

And so you understood, from subsequent investigations, that referred to Ben Kelleher; is that correct?---Yes.

Alright. And finally, at page 22, this particular XX described that – just look in the middle:

Yeah, to me, because I was sitting at the table.

You see that bit? He described that – AT was describing that Zamolo had placed it on Facebook. Takes a bit of reading, that one. Take a moment and tell me if you agree?---I don’t know if that’s the same incident. Okay.

It seems to be, but that’s fine. If you’ve got a reservation, that’s – I’m not going to push you about that. You think it may refer to another incident?---It may.

That’s fine. So now – so you had that material. Now, finally, you interviewed a third youngster on the list, who is YY. Just have a look at YY. Now, could you just look there, please, at page 8. Alright. So do you see here what the witness said is he’s asked:

What do you think Conan – what do you think – why do you think Conan had his phone facing towards AT? What do you think he was doing?

Answer by the witness:


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Recording him.

Question:

And what makes you think he was recording him.

Answer:

Because that’s what it looked like.

So there you have further evidence that a witness saw recording happen; correct?---Yes.

If you look at 11, page 11 of that document, please. Once again, you will see at the bottom of the page here this witness is asked questions about what happened afterwards and it’s described that, starting at the centre of the page:

He walked back to the door. He was with some other officers.

What happened when he met up with the other officers?

I don’t know.

You don’t know. Are you able to recall who those other officers were?

Answer:

Ben.

When you say Ben, are you aware of his last name.

Answer:

Kelleher.

Anyone else?

No.

So here you have – now, this particular witness wasn’t saying that he overheard anything said between those two, but it was evidence that confirmed what was said by the previous witness that, having finished doing what he was doing, Zamolo went and spoke to Ben; correct?---Yes.

Alright. Thank you for that. At this point your situation was this: you had a witness who was potentially relevant to the allegations in Ben Kelleher?---Yes.


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And you had a fourth boy on your list there, ZZ. Just have a look?---Yes.

That was a person who was potentially an eyewitness to these matters as well; correct?---Yes.

Now, subsequently, you interviewed Conan Zamolo and he gave an explanation that he admitted that he had a phone wrongfully on the premises; correct?---Yes, he did.

He admitted having that phone in the shower area; correct?---Yes.

And he admitted holding it up as if he was filming; correct?---Yes.

But his account to you was, at that time, that he didn’t actually film; correct?---That’s right.

His story was at that point he said, “Well, I didn’t actually do it, I just pretended to.” Correct?---That’s right.

Alright. But did you put, at any point, to Conan Zamolo, “Well, you did it – the witnesses are saying you did a bit more than that, Mr Zamolo. The witnesses are saying they actually saw the images.” Did you put that to him?---I can’t recall every word that I put in the interview, but I feel that I asked him about whether he did video that – record that particular incident or not.

Alright. Could I just take you to – excuse me one moment. Sorry, we’re just going to organise the paperwork here, but I’m going to take you to the finalisation report. This is exhibit 64.303. Do you have your finalisation report there?---I think I do. Yes, I do.

Concerning this finalisation report, could I take you to page 1?---Yes.

Now, on page 1 at the top of the list of allegations of Mr AT, you listed that particular allegation:

Staff member Conan Zamolo recorded inmates while having a shower and masturbating.

You see that listed that allegation?---Yes.

That was one to deal with. At page 2, you said this:

On the 29.10.2015, Conan spoke with young person.

That’s Mr YY for our purposes; correct?---Yes.

And you said this:


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No new details gained and minimal corroboration of information gained from [REDACTED INFORMATION]

Is that correct?---Yes.

But can I put to you that that’s - - -

COMMISSIONER WHITE: Can you just delete that name, thank you.

MR MORRISSEY: What did I – sorry. Sorry, yes. Thank you. Thanks, Commissioners and if that happens again .....

COMMISSIONER WHITE: I can’t tell you what will happen if you do it a third time, Mr Morrissey.

MR MORRISSEY: No. I understand.

So anyway you’ve put that “minimal corroboration of information gained from AT”. But what I want to put to you is that that’s not accurate: that in fact what that witness was saying was that he actually saw the filming happening; correct?---The report that I prepared there was just basically thumbnails of what my interpretation of the information that I had gained from each person. It was designed to, I guess, point the person who was going to go through it at the information that I had, and that’s the way that I’ve – I’ve summarised what I got from there.

Well, that may be so, but you agree that that’s inaccurate. When you said:

No new details gained and minimal corroboration deigned from AT.

That’s inaccurate, because it leaves out the fact that this witness saw filming?---I don’t – I don’t think I’m saying – I’m not negating the fact that he had evidence to offer, I’m just saying there was nothing – nothing major, new was gained from the interview with him.

Could we go over to page 3, please. Now, here the person referred as XX. Do you see under witnesses?---Yes.

Go to the second line, where it’s XX, you see - - -?---Yes.

- - - that person:

XX was spoken to and he stated that he thought Zamolo had recorded inmates having a shower.

See that?---Yes.


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But that’s not accurate, is it, because what that witness was saying is that he saw Zamolo recording and that he saw the image of that recording; correct?---That’s what he said and that’s the way I’ve summarised it.

Yes. But do you agree now that it’s completely inaccurate to say that that witness was spoken to and he stated that he “thought” Zamolo had recorded inmates?---Well, no. I don’t think it – I don’t think I’ve written it inaccurately. There has been no intent to inaccurately record what was written there, it’s just the terminology I’ve used, it’s not - - -

Well, that – it’s the terminology that you’ve used that I’m pressing you about, though. You’ve said “thought”, whereas in reality he saw not only the filming, but the fruits of the filming?---Well, he has told me that he saw, and I’ve just written as he thought he – he thought Zamolo had recorded it.

Do you think - - -

COMMISSIONER WHITE: Well, do you have – well, you are probably going to ask the question, are you?

The word “thought” lends some equivocation to the statement, though, Ms Engels?---Certainly no intent to do that, Commissioner. I just - - -

If you say, “Well, I think I saw something,” that suggests you can’t be certain about it. Whereas if you say, “I saw something,” that’s quite a different proposition; is it not?---Yes.

Thank you.

MR MORRISSEY: Well, do you have an explanation for why you’ve used the minimal term – the minimal phrase, he “thought” Zamolo had recorded inmates having a shower. What’s your explanation for that?---I don’t really have an explanation for that. That’s just the way I’ve summarised it.

Could we go – at the bottom of the third page, you will see conclusion:

All inquiries have now been completed.


Now, that wasn’t the case, was it, that all inquiries have been completed?---I don’t think I meant all possible in the world inquiries. All the inquiries that I’ve done have been completed.

But you didn’t have – you hadn’t found Ben Kelleher yet; correct?---Yes, that’s correct.


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You hadn’t spoken to the boy described as ZZ on the list; correct?---Yes, that’s correct.

Had you asked the PSU, the Professional Standards Unit at – from Corrections, to provide any footage that they might have saved?---No. Can I respond to that?

Of course you can?---Okay. In getting this file, as you rightly pointed out at the start, I did get it quite a number of months on from when it was actually instigated and I did take into account a lot of the issues which I referred to in my statement. Can I just refer to my statement now?

Yes, that’s fine. But I think – I think it’s safe – I think you’re not going to be – no one is going to put to you that you didn’t raise those issues. You don’t need to summarise them. You can if you want to, but - - -?---I guess I’m making the point when I say “all inquiries” I’m not suggesting that every inquiry that could have been done, you know, ad infinitum, was done. I’m just merely saying this finalisation report was very – it was a report I prepared which isn’t a normal police document, which I’ve alluded to in my statement, and I wanted another set of eyes on it, I wanted someone to have a look at what we had done to date and check it was sufficient. It wasn’t meant to say there were absolutely no other inquiries that could have been done over the term of the investigation.

But I think it’s – I do want to press you about that for a moment, if I could. It’s one thing to say that there were not – that you weren’t meaning to say all inquiries ad infinitum were followed, but you agree there’s nothing ad infinitum about Mr Kelleher or ZZ or the footage. Those were directly relevant pieces of evidence, if they existed, which bore directly upon the questions that were raised; correct?---Well, in relation to the recording, as you know, I had executed a search warrant and had Mr Zamolo’s phone and had downloaded some - - -

Many images. That’s okay. We accept that, that’s fine?--- - - - tens of thousands of images and we had gone through, and we actually found six, and between us – and it was a collaborative approach, we sort of formed a view if it had been on his phone that we would have found it, that it was highly unlikely that he would have deleted that particular one when the other six were clearly – clearly there for us to see.

Well, why did you do that (a) when you knew it was Snapchat, which is a self-deleting item, and (b) that you had at least some evidence that he said to the witness, “I deleted it”?---There are – there are a few reasons. One of them we spoke about Snapchat and the second that they’re saying the video – if it had gone straight from the video to Snapchat the time delay and him coming around and then watching it being recorded suggested to me it was perhaps done on his phone. I guess it was that world of unknown, with not having it in front of us, and the likelihood of succeeding in a position of such a recording, it seemed highly unlikely that it would be anywhere near successful, considering we didn’t have the actual image to put before the court.


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But you had two witnesses saying they had seen the image on the phone; correct?---Yes. However, in my experience with the criminal courts and the level of proof we have to bear, to not have the actual image in front of them seemed to me, and those around that looked at my file, as incredibly unlikely.

When you say – are you overstating what your state of mind is there, incredibly unlikely when it was Snapchat?---Yes, I believe so. I believe getting it – well, yes.

What do you base that on. Did you get any expert advice or learned advice about it?---Definitely we took a – every one of us went through that file and those particular recordings and the lack of. It wasn’t just – you know - - -

Specifically about Snapchat, though?---No, not specifically about Snapchat.

Going to your statement to this Commission, if we could at paragraph number 60, this is at page 8?---Paragraph what, sorry?

Paragraph 60. Here you were being asked why – you were responding to some questions from a review as to why you didn’t pursue a particular young person, being ZZ, and you respond as to why you didn’t pursue. At 60 your response was this:

In relation to this specific complaint, this never occurred. The only evidence available, taken at its highest, was that Conan Zamolo was holding a phone while boys were masturbating in the shower.

Now, that’s false, isn’t it, that statement?---I don’t believe so.

Because the evidence taken at its highest was that two boys had seen him filming and had seen the images that he filmed, and had heard him admitting that he filmed it, and he was going to send it to Snapchat?---And my job was to prove that in a criminal court.

Yes. But just a moment. Here you are saying the only evidence available, taken at its highest, was that Conan Zamolo was holding a phone while boys were masturbating. And that’s not the case, is it? You did evidence in your hand that he had done a lot more than that; correct?---Well, I had – yes, I had statements from those boys, but the evidence that I had to present before the court was those thoughts alone, or those - - -

Sorry, go on with that. What do you mean those thoughts alone? You had the sworn evidence of the complainant AT, corroborated by two other individual who saw the filming happen, one of whom saw the image; correct?---I still don’t believe that would have been enough to come – to get a successful prosecution in the criminal court.

Yes. But why did you use the phrase “the only evidence available, taken at its highest”? You were overstating how bad the case was, weren’t you, at that point?


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Just have a look at – you’ve used the term “taken at its highest”. Do you agree with that?---Well, I believe the evidence I had was lacking the ..... which was the actual material that was recorded.

Right. I want to turn now to the assault allegations. Now, here we go back to the interview please?---Yes.

Here, on page 3, the allegation is first made, isn’t it? Here, it is said:

I was having a drink and then inaudible hit me in the knees with the torch and stuff. I went to run out into the dining room. It’s like – it has got two doors, but they both open up. One you’ve got a door latch at the top, but it was closed. One was open. Walton was hiding this side of the wall, and as I was coming – running out this side, he put his arm out and clotheslined me, and then I got back up and ran back into my room and Conan chased me back into my room, and started hitting me in the kneecaps more.

Now, that’s the initial time he made the allegation on tame?---Yes.

And you’ve got three things there, haven’t you? You have got the three hits at the water bubbler; correct?---Yes.

You’ve got the clotheslining incident by Mr Walton as alleged?---Yes.

And then you’ve got the return to the room and more hitting; is that correct?---Yes.

So three specific instances of alleged assault at that point; correct?---Yes.

Alright. Now, if we move ahead now, please, to page 7. And I’m just pointing these out to you as we go. You see he repeats that allegation on page 7, do you agree with that, in the middle of the page? Just read that quickly to yourself?---Yes.

Alright. Could you go over please to page 9 of 122 and here, you have the question – a “Mmm” at the top by Hutchison, and AT says:

I’m frigging – he just come up and his us in the kneecap for a laugh. Thought it was a game.

And then a little bit further down Hutchison says, “For a laugh?” And AT says:

Yeah. It wasn’t like for – we didn’t do anything.

And then the hitting is described further down. And he says this:

I don’t know how he hit me, a normal hit swing, um, it wasn’t with the bit where the light comes out. He turned it upside down and he did it with that end.


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Hutchison says, “Mmm”. And he says:

But you know how – you know, if you hit someone hard on the bone with metal, it hurts –

naturally. Correct? Do you see that?---Yes.

So you had an allegation that he was hit hard on the bone and it hurt; correct?---Yes.

If you look over the page on 10, five lines from the top he described this:

Yes, I had bruises and stuff on there. And yeah, I ended up telling a couple workers about – I think I told Johnsy and all that, because that was their boss at the time.


Johnsy was put on the map at that point?---Yes.

And did you understand there were two workers with the surnames of Johns working at Don Dale at that time?---No.

Did you seek to speak to any person called Johns?---No.

You see you have got an allegation of bruises here, haven’t you?---Yes.

Why didn’t you follow that up to see whether or not Mr Johns had seen bruises?---When we looked at the this particular allegation, he went on to state [REDACTED INFORMATION] sorry, I’m sorry about that.

No. That’s okay. AT, yes?---AT went on to explain that he did believe – taking the investigation in its entirety, he believed that Mr Zamolo was acting in some sort of game.

Just stop there for a second?---Yes.

Those are your words, not AT’s words; correct. I’m going to take you through his words. So do you agree with that? That’s your words, not his?---Okay, for now that’s my words. Yes.

Alright. Let’s go through, and we will see if - - -?---Yes.

- - - you can point out what you want to point out there. At page 10 further down:

How hard did he hit you?


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Enough that I didn’t want to run or anything. I didn’t – I hated him being on shift and stuff. Like, enough me just not – not to forgive him.

So you can see there that AT was expressing a grievance about how hard he was hit; correct?---Yes.

Alright. Now, can we keep going over to page 12 here.

Where did he hit you? Which knee did he hit you?

Look in the middle:

Both knees.

You see that?---Sorry. Yes.

How many times?

I don’t know. Probably like three times before I tried running out in the dining room, and then when I ran back into my room it was just continuously, you know. I just curled up in a ball.

Correct?---Yes.

So here you’ve got details that there was three hard hits at first and then continuous hitting when he curled up in a ball in his room; correct?---Yes.

There’s no game that you know of that involves that, is there? The game of hitting with a torch?---Yes. I believe there can be a games that occur that are taken at the time that they were at, yes, I can.

A game between a guard and a mid-teenage boy hitting with a torch?---When I went on to talk to him later on through that statement, and I said to him, what did you think – I’m again using my words but I asked him what he thought Mr Zamolo was doing and he said, “I think he thought it was just a game”.

Yes. But that’s – just come down the page a bit. He said – Hutchison says:

Why do you think he hit you?

I don’t know, but um – then three times when he hit me, before I tried running, he was laughing about it like it was a game, you know.

Is that what you’re relying on, that comment?---That’s one of the comments that I’m thinking of.


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But it wouldn’t matter in the least, would it, if Zamolo thought it was a game, to the question of whether the assault was made out, would it?---Yes. I do think it would make a difference.

..... defence to hitting a young teenage person with a torch that the person doing the hitting thinks it’s a game?---No, I don’t think for a moment – I think the behaviour that was displayed by Mr Zamolo towards these kids is appalling, absolutely appalling.

Is it a defence to the charge?---I think to prove a charge of assault I must prove someone’s intent. I must prove that.

What – an intent to hurt?---An intent to assault someone. And intent to - - -

Well, that’s made by the application of force, isn’t it?--- ..... of force. Yes, it is.

Yes. With a torch, three times on the kneecaps causing bruising; correct? He goes on, look at page 13:

John Walton was part of it because he clotheslined me.


There’s no lawful justification that allows somebody to clothesline a prisoner, is there?---Depends on – it would depend on the circumstances of what actually occurred.

Did you look at the guidelines as to use of force in youth detention?---No.

Why not?---I didn’t look at them. I can’t answer that.

But you’ve got an allegation of somebody clotheslining – which you understand to be a stiff arm in the upper head – or the upper - - -?---I would think so.

Yes. Clotheslining, you understand - - -?---An arm putting out to prevent somebody to enter an area, I would have thought.

Yes. And – alright. Could we just go – I will skip over one bit there. Of course, you feel free, if you know there’s a bit that we should go to, that’s fine. Please don’t hesitate to point out and your counsel can also do, that’s fine, because I am putting to you these parts. Directly after – alright. Go to page 16.

Okay, why did you run towards the dining room?

Answer:

Because there was cameras there.


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And then he goes on to say:

Why were you running towards the dining room that had the cameras and the lights?

Cause they were going to belt me, I know.

Correct?---Yes.

It doesn’t sound like a game, does it, that particular passage? Do you agree with that?---Yes.

Go over the page to 17:

What happened in your room.

This is down the bottom. Answer:

He was hitting me continuously.

Whereabouts?

Um, in the legs and that.

Look over the page:

With what?

Answer:

The torch.

Question:

How did it stop?

Um, me screaming “stop”.

Now, do you see that part there? That doesn’t sound like a game, does it?---No.

It sounds like a full on assault on a kid with a torch on two occasions causing pain, suffering, and fear; correct?---Those are your words.

Well, they are my words but do you agree with them?---To a point.

Yes. Okay. So there’s no defence available to the law to an assault charge of believing that you are playing a game, is there?---I believe, if there is a context of


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playing a game, and people at that time think that they are, I think that that goes towards intent for sure.

Yes. But you need some evidence that the person thought they were playing a game, even – I mean, I’ve already put to you that that’s not a defence, but even on your thesis of it, for that to be a defence you would have to have some evidence that that is what the person thought; correct?---Sure.

Yes. When you came to interview Mr Zamolo, you didn’t even put this incident to him, did you?---No.

Zamolo never said he thought it was a game or that it was consent; correct?---No, that’s true.

You didn’t even ask him the question; correct?---That’s true.

Alright. Question at page 24:

Because he hit me in the kneecaps, that’s why I ran out into the dining room. I wasn’t doing nothing wrong, and he hit me for no reason, so I wasn’t going to do what he was saying.

You see he said that; correct?---Yes.

What he’s describing is he is running away with an assault with a torch; correct?---Yes.

So there could be nothing lawful about Mr Walton clotheslining him in that situation when he is simply running away, could there?---In his words.

Yes, in his words. I will finish this. Thank you. That’s the evidence that I wanted to put there. Now, just turning very quickly to how you dealt with this in the finalisation report. Could you have the finalisation report there, please. If you look at page 1 of the finalisation report, do you agree with this: there was no mention whatsoever of the torch clothesline allegation at all?---Yes, I do agree.

You go over to page 2 of that report, do you see here in reference to, on page 2 of your report, you’ve indicated at the bottom there, you see 14, 316:

Senior Constable Engels and Kennon interviewed Zamolo. All known matters relating to –

individuals –

and Don Dale activities were put to him. Do you see that?---Yes.


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That was not correct, was it, because you didn’t put to him anything about the torch or clotheslining incident; correct?---Yes. I have omitted to put that in there, yes.

Yes. Alright. Why was that you omitted it?---Beg pardon?

Why did you omit it?---I don’t know.

Why did you omit to put it to him in the interview?---As far as the interview went, we had spoken about it at length with – this wasn’t your average everyday file. I had spoken about it with my supervisor, who was in the interview with Mr Zamolo with me, and it was one we had deemed that we believed deemed the intent wasn’t there to assault AT, which is why we didn’t pursue that line of - - -

But that – okay. So just stop there for a second. Are you basing that on the game theory, aren’t you, on the idea that Zamolo believed it was a game?---That, and the – we had built a bit of a profile on Mr Zamolo, and we had – I had trawled his phone, tens of thousands of images. I dealt with him at the – met him at the search warrant that we had done. It seemed feasible, knowing what we knew about him, his maturity level was only one notch about the children he was working with. It never changed from that for me, and it seemed feasible that there was some sort of behaviour going on that he felt that he wanted to be on the level with those boys, goofing around and joking around with them all the time.

Sure. So surely that was something you had to ask him?---We didn’t - - -

Why didn’t you ask him that question?---We had made a decision not to pursue that line.

Sure. But the question is why?---For the reasons I’ve just explained.

No. But why didn’t you ask him? You were relying upon on a profile of him as a big cuddly teddy bear who didn’t understand - - -?---Certainly not that – certainly not that.

Okay. So why - - -?---We had seen him as – his behaviour in that detention centre was despicable. None of us had – we all collectively agreed that the behaviour he was displaying was not okay.

And at the bottom there, Conclusion on page 3, “All inquiries have now been completed.” Once again I put to you that was untrue because you hadn’t even asked Zamolo why he did it; correct?---That sentence was put with a thought in mind not to omit something.

Yes. Could I ask you this as well: wouldn’t it have been – what would have happened – just gaming it out, you had obviously thought about the interview. What would have happened if Zamolo said, “No, that didn’t happen, I just didn’t hit him


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with the torch, no game, no fun. It just didn’t happen.” What would you have done then, charged or not charged?---I don’t know, I would have to think about that.

Well, in the event you had an allegation of hitting continuously with a torch, clotheslining, followed by a good further bout of hitting in the cell, and you had a person saying, “Well, that just didn’t happen.” No – in other words, no excuse, no game, no misunderstanding, even if that is valid. Well, you would have charged, wouldn’t you?---I don’t know.

Alright. Finally, just in terms of your statement to the Commission here, and then I’ve got a couple of final questions and I’ve finished. In terms of the Commission, at – could you just go to paragraph 56(a). Just have that open in front of you. So here you were discussing – it was put to you, or at least you had to respond to a question why you didn’t speak to a Watson, and you correctly pointed out there was no such person, but you guessed it was Walton they were talking about?---Yes.

Alright. So you went through that. And you’ve set out at – at (b) you’ve set out what I might describe as the game defence, or the game idea, and you’ve made some references there. Can I just put a couple of things to you here. Go over to (c) now. You have said you took a number of matters into account as to why you wouldn’t charge and one was the context of his relationship with Mr Zamolo; you see that?---Yes.

Can I put to you that the key component of the relationship between those two he was a mid-teenage prisoner in detention in respect of whom Mr Zamolo had duties; is that correct?---Yes.

But you were referring to a relationship of fun and games – of a game; is that right?---Exactly – sorry, which exact point are you - - -

Second line of paragraph (c)?---(b)?

(c)?---I believe that there was – I had believed there was a relationship between them that was on a – yes, a nature where Conan Zamolo was trying to be on his level, absolutely.

Was the decision not to put those alleges in the record of interview taken by you after due consideration with the superior?---Yes.

So you decided, “We will not put that to Zamolo. We won’t ask him”?---I think that – I don’t know if we put it out quite that clearly. I think it was just as we – my line supervisor was with me in the interview, and she had had carriage of the file prior to myself, so we had planned the interview and we hadn’t gone there with that particular line.

I’ve got some general questions about the investigation here. I need to put something formally to you. I put it to you: you should have pursued charging in respect of the


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assault and you should have pursued charging in respect of the filming in the shower. What do you say to that?---I don’t believe that either of them would have been successful.

Could I now take you to something else. Just the difficulties that you face in an investigation of this nature. You had difficulties – you understood that there were difficulties in obtaining the CCTV footage, is that correct?---Yes.

You understand that because you came into the matter late?---Yes.

And, although you didn’t specifically inquire yourself, your thinking was, “Well, somebody else must have already made that inquiry.” Is that correct?---That and the vast times I’ve got CCTV from certain places, and know that pretty much a month is about the utmost that most people keep – most agencies keep their CCTV for.

I mean, because you didn’t ask – I think I’ve got to put this question – did you bring a bit of a – no one is putting to you that you deliberately did this. Okay?---Sure.

But I need to ask you the question: did you bring a slightly defeated attitude to the question of obtaining that CCTV, bearing in mind you didn’t actually ask for it?---Not defeated. I knew the people that had had it before me and I, either rightly or wrongly, made the assumption that they would have – had there been it, they would have pursued that, I knew it was so far down the track from when the allegations were said to have occurred that it was – I felt not likely at all that they would have held any CCTV.

COMMISSIONER WHITE: Was there no notation on the file that you inherited to say anything about their attempt to get CCTV?---No.

If they had, surely that would – a competent investigator would have put that on the file?---Yes. I didn’t see a notation on there.

MR MORRISSEY: Having not seen a notation did you follow up and ask anyone?---I didn’t.

No. Did you ask Kyra Andrews or the – or her superior Dave Ferguson at the PSU?---No, I didn’t.

Alright. What about – in terms of finding Mr Kelleher – you understand he was found for the purpose of this proceeding – don’t you think you could have tried a bit harder to find Mr Ferguson?---The

COMMISSIONER WHITE: Kelleher. Mr Kelleher.

MR MORRISSEY: Sorry. Mr Kelleher, I apologise. Thank you. Yes, Mr Kelleher. I apologise?---Look, the supervisors that I had at the time had made extensive inquires, and her husband is very – is also a police officer in the technical


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unit, so I knew she was up to date with – you know, ways and means to find people, and she had tried really quite hard to find Mr Kelleher, and not been able to do it. So I accepted that.

Why recommend closing the file, though? Why not just leave it open, pending the discovery of witness ZZ, or Mr Kelleher? Why not just leave it open?---Well, that’s not what we – that’s not a general protocol for the police. We generally see something through to the end and then if we – it’s always there. It can always be reopened. I had asked – it’s still open now. That finalisation report hasn’t been signed off. With sexual – child sexual offence files, they perpetually remain in our system ready to be reopened with the flick of a mouse.

You’re not in a specialist unit – sometimes some states have got special youths investigating offences or alleged offences in custodial settings, and obviously you’re in a generalist area .....?---Child abuse task force.

But did you have to have regard, in respect of the complaint which – there were many complaints but some of them had a sexual connotation to them, particularly the one I’ve been pressing you about. Do you have to have regard to any particular order in guiding your conduct when dealing with a young and vulnerable witness?---You mean in detention?

I mean in dealing with this particular complaint. What order bears upon how you conduct yourself with a teenage complainant whose complaints include a sexual complaint?---We have general orders for investigations.

What do they require you to do in respect of the complainant?---No different than dealing with any other child abuse task force matter that comes into our hands, and that is the legislation that binds us when it comes to reporting to the Territory Families, to the CEO, ensuring that the evidence is gained in an evidential manner, for example child forensic interviews, vulnerable witnesses.

But what about ..... may I stop you there, I understand – no, sorry, I shouldn’t have cut you off, because you got to vulnerable witnesses. That’s where I’m at. Okay?---yes. Vulnerable witnesses. That’s to do with the collection of evidence and giving of evidence in court, as opposed to the actual investigation.

So what sort of contact – or what sort of contact did you maintain with the complainant between the time when he made his record of interview and the time when you submitted your discontinuance application?---I guess, remembering that when he made that complaint it wasn’t my file. It went through two hands before it got to me.

That’s okay, we understand that. What’s the answer?---Well, I can’t talk about what contact was made with him when this allegation was made as it wasn’t – I’m not privy to that.


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Just you, though?---I got it from when I got it.

Yes. What - - -?---Okay.

- - - contact did you maintain?---I didn’t make any with him, for the reason that I wanted to just – the file had been sitting there for so long. I was very cognisant of that. I wanted to progress, and I wanted to be able to tell him the outcome of the file.

You understand sometimes – because of your sex offence experience, you’re aware sometimes complainants feel abandoned, shut out, and as if the investigation is not being pursued properly. You are aware that that phenomenon can happen; correct?---Yes.

Alright. And you’re aware – when you’re dealing with sex complainants you are aware of managing that by maintaining contact and support with the complainant?---Yes.

You do that routinely, taking for example - - -?---Take that very seriously, yes.

Take a – take a female complaint of say 15 or 16 years of age. You would routinely keep them advised as to the steps you’re taking; correct?---No, I wouldn’t. Not necessarily at all. I try to maintain a lot of contact through other avenues, in order – I don’t regularly keep young victims of sexual offences updated with the court process of the investigation process, no.

Alright. Well, leave aside the investigation process then. You maintain contact with them for support and wellbeing reasons don’t you?---I check on them through various avenues. Yeah.

Did you do that with this complainant?---I didn’t. I want to press on and get to some conclusion with this file. That was my main motivation.

Alright. Well, can I just ask you this: why is it that you treated him differently to the way you might treat sex offence complainants?---I – I didn’t treat him differently. It was just a decision I made, at that stage, I wanted to progress it. I wanted to get some conclusion before I made contact with him.

Alright. Do you see now, now that you – now that you’re here, and now that you’ve been through what you’ve been through, and been asked questions and so on: do you understand how it has the potential to alienate people from making complaints if they feel that they’re not going to be advised of the progress of it and it that may be withdrawn without any consultation from them?---I would hope no one would feel that way, because that’s what I spend my days doing, and ensuring that that doesn’t happen. I am passionate about it, I love my job in that area, and I would hate to think that anyone would think that way.


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So in respect of this particular individual do you see the danger of what’s happened? He is a person, vulnerable in custody, making a complaint, finally coming out and making a complaint, and then that complaint is processed without consultation with him, and there’s an application to withdraw the complaint despite that he’s sworn it’s true, and there’s no contact with him. Do you see how that might be alienating to him?---It could be, though never the intention.

No. You certainly – no one is suggesting you had that intent, but did you care enough about it, that’s my question to you?---Yes – yes. Yes, I did. Absolutely.

Alright. Those are my questions.

<EXAMINATION BY MR JACOBI [12.31 pm]

MR JACOBI: ..... you gave, in your statement at paragraph 56(c), which Counsel Assisting has already taken you to, an explanation in the third line. I apologise. It’s exhibit 347, Commissioners, a statement to the effect he hadn’t made a complaint in the past because he didn’t think Mr Zamolo meant to hurt him?---Yes.

And Counsel Assisting has taken you to a number of passages in the interview – the interview is exhibit 64.276. There was one passage that Counsel Assisting did not take you to. Can I take the Commission to it, at page 24. I very much hope I’m using the same references. Yes. Can I ask you to look at the last question that appears on the bottom page 24 which is the question:

Do you think he thought it was a game?

?---Yes.

And then to turn over to ATs answer and then the answer was there, “Yeah.” And it continues on with a further explanation that he offers. And there was a further question that you asked:

Do you think he meant to hurt you?

There, and you say – sorry, ATs response is:

No, I don’t think. That’s why I hadn’t made a complaint.

Your answer is:

Okay.

He goes on to say:

.ROYAL COMMISSION 9.5.17 P-3586 K. ENGELS XN©Commonwealth of Australia MR JACOBI

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At the same time ..... and everything in there, so that’s why I hadn’t said something.

Then there’s a further question that appears:

So if I’ve got this straight, you don’t think he meant to hurt you, but you do think that this force was too strong for you.

And the answer is:

Yeah.

I just want to take you back to the statement. Is that the passage that you were relying upon with respect to the statement with respect to intent that appears at paragraph 56C in your statement?---Yes. It is, yes.

And I’m correct in understanding that that’s not a passage that counsel assisting has taken you to otherwise.

DR DWYER: ..... I object to this, for this reason – I don’t know whether I need to go to the microphone, but it’s really distorting to take the witness to that without reading the first paragraph that’s on there, which puts it in context.

MR JACOBI: I’m happy to read the full paragraph. It’s not – all my purpose is, Commissioners, is simply to take the witness to a passage which appears – that’s not –Counsel Assisting has not taken this witness to. I’m not attempting to paraphrase the evidence.

COMMISSIONER WHITE: Then you are exposing yourself, too, to a bit of a lecture about what constitutes an assault too, Mr Jacobi.

MR JACOBI: I accept that’s so, but the difficulty I face is Counsel Assisting that is indicated that there were any passages that - - -

COMMISSIONER WHITE: Yes, yes. Quite entitled to do that.

MR JACOBI: And that’s – and that’s all I am seeking to do, and I will sit down.

COMMISSIONER WHITE: But in fact you will need to put the whole passage, because that’s what you are complaining about, to put it in context.

MR JACOBI: I’m not – there’s no complaint, and I’m happy to go back. If you come back to the top of page 25, the answer of AT is:

Yeah. But he’s a very big bloke, and he’s always – even when we’re in bad behaviour –

.ROYAL COMMISSION 9.5.17 P-3587 K. ENGELS XN©Commonwealth of Australia MR JACOBI

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and there’s inaudible –

the procedures are – procedures and stuff. He’s always, like, rough with us and he knows that. He’s a lot bigger than most of us in there, and he just doesn’t understand that he can just come to us and start hitting us and thinking it’s a game.

That’s when:

He’s a big bloke.

And then your question was:

Do you think he meant to hurt you there?

AT’s answer is:

No, I don’t think, that’s why I hadn’t made a complaint.

The only question I wish to ask is: is that the passage you were referring to in your statement at paragraph 56(c) in the third line?---Yes, it is.

Thank you. I have no further questions.

COMMISSIONER WHITE: Nothing arising out of that, I take it, Mr Morrissey.

MR MORRISSEY: No, nothing arising from that, Commissioners. It just falls to us to thank Ms Engels for coming along and enduring questioning.

COMMISSIONER WHITE: Yes, indeed. Yes. Thank you, detective, for coming and assisting the Commission in its work?---Thank you.

You’re free from your summons now.

<THE WITNESS WITHDREW [12.35 pm]

COMMISSIONER WHITE: Now, Mr Morrissey.

MR MORRISSEY: Your Honour, I indicate – I’ve had it administratively communicated to me that the Commission would like to rise now. Mr Wells is present, but his evidence has been attenuated. We think we can deal with that in 10 to 15 minutes after the lunch break, if that is suitable.

COMMISSIONER WHITE: Can we take – yes. Thank you, we will do that. I think there are some other commitments that intervene here.

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MR MORRISSEY: Yes, I understand that.

COMMISSIONER WHITE: We will take a short lunchbreak, though. Perhaps 45 minutes.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: Is that satisfactory for everyone? So we will try and be back here at quarter past 1. So a little short of 45 minutes, that’s 40 minutes. Thank you.

ADJOURNED [12.36 pm]

RESUMED [1.23 pm]

MR MORRISSEY: Commissioners, I call Kieran Wells.

<KIERAN MICHAEL WELLS, SWORN [1.24 pm]

<EXAMINATION-IN-CHIEF BY MR MORRISSEY

MR MORRISSEY: Mr Wells, would you state your full name please?---My name is Kieran Michael Wells.

What’s your occupation and rank?---I’m a police officer. I’m a detective acting senior sergeant, currently the acting officer in charge of the NT Police Special References Unit.

Are you familiar with a document known as the Northern Territory Police Youth Detention Taskforce Review of Northern Territory Police Involvements in Youth Detention Centres 2006 through 2016?---I am.

Did you play a part in collating the information and producing that report?---Yes, I did.

Have you had the opportunity to look at that report and familiarise yourself with it in recent times?---Yes.

Yes. Thank you. I’m not sure it’s apt to ask whether it’s true and correct, but I’m going to tender that in any event. May I tender – this is in the Wells tender bundle at tab 17. I tender that document.

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COMMISSIONER WHITE: What’s the Wells tender bundle? Perhaps we need to start with that. I don’t - - -

MR MORRISSEY: It’s a new exhibit number altogether.

COMMISSIONER WHITE: We are doing it - - -

MR MORRISSEY: Yes.

COMMISSIONER WHITE: - - - exhibit-by-exhibit, document-by-document or is it a tender bundle?

MR MORRISSEY: Yes. I think – well, it may be ..... there’s a bit of uncertainty as to how many we will tender them, and we will likely - - -

COMMISSIONER WHITE: Let’s do them as individual exhibits then.

MR MORRISSEY: Yes. If we could tender this one.

COMMISSIONER WHITE: Yes. Thank you.

MR MORRISSEY: This is the only one that will be taken to the – that the witness will be taken to now.

COMMISSIONER WHITE: Exhibit 349.

EXHIBIT #349 NORTHERN TERRITORY POLICE YOUTH DETENTION TASKFORCE REVIEW OF NORTHERN TERRITORY POLICE INVOLVEMENTS IN YOUTH DETENTION CENTRES 2006 THROUGH 2016 REPORT

MR MORRISSEY: Do you have a copy of that in front of you there?---Yes, I do.

Could I just take you for 10 to 15 minutes to a couple of aspects of the report there, could you please go to page 7 of 34. And that’s – actually, perhaps, sorry, not 7, if we could go, first of all to the findings section at 5 of 34. Now, there are – you made five recommendations in this report; is that correct?---That’s correct.

Could you just explain briefly what was the background to bringing this report into existence?---Following – to the best of my knowledge at least, once the Royal Commission was called there was – an order came down that we were to examine police interactions or investigative activity or general interactions within Northern Territory youth detention centres. Terms of reference were made out and a taskforce was appointed and, as a result of that, for want of a better expression, I was placed as the investigations manager.


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And all of the reviews, you’re involvement was as investigation manager all of the reviews that were conducted were, in effect, funnelled through you, is that correct?---That’s correct.

And you made recommendations based upon the evidence that you received?---Yes.

Alright. So just – if we turn to the first of those recommendations, here you had to deal with an issue at page 5 of 34 with what you described as instances of noncompliance or seeming noncompliance with relevant provisions of the Care and Protection Act, particularly sections 28 and 33, which you have then set out. Now, here you have issues concerned mandatory reporting. Can you just explain to the Commissioners, in general, terms what sort of instances you had, some examples of instances, and then I will get you to explain what you meant by seeming noncompliance as opposed to real noncompliance?---Certainly. So, Commissioners, what we noted was that there were a number of instances in which it appeared that the necessity to make reports to the CEO, under section 28 of the Act, hadn’t been adhered to. And that happened on a number of occasions, across a number of different types of matters that had occurred within a detention setting. When I say “seeming noncompliance”, that is because we acknowledge the possibility that notifications may have been made and hadn’t been recorded properly. But across the board, when I look at these, I take the view that it would appear that we have not complied.

Yes. Just in respect – in relation to that, can you say – I appreciate it may be a little bit early in the process, but can you say what do you think lay behind those failures or seeming failures to report?---Well, I think I need to make quite clear that this is a snapshot review and so we didn’t examine causation because – quite simply, because I wasn’t given the terms of reference to do so. So anything I would put my mind to would be a personal opinion and possibly speculative.

We won’t ask you to speculate but in terms of dealing with the issues for the future you do need to formulate some sort of a concept of what the problem may be without making any adverse findings against anyone in the past but what do you see the scope of the problem and potential causes and ways you can deal with it?---Okay. I think it’s clear that if we see that there has been a number of instances of noncompliance, that there may have been an inconsistency of understanding, amongst particularly generally police members, as to their responsibilities to comply with this legislation.

COMMISSIONER WHITE: Can I just intervene here to ask you: it means, from your evidence, that some superintendents or youth justice officers were putting in complaints. Was it across the board a failure to notify or was it just instances where you thought that was happening?---Commissioner, I will try and answer you, I’m not sure if I’ve understood you, when we talk about a failure to comply under section 28, that’s a piece of legislation that’s directed solely at the police.


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Yes?---And so the majority of complaints that we’ve received from detention centres have emanated from the detention centres themselves - - -

I see?--- - - - from staff within there. And so there’s no suggestion there, from my point of view, I haven’t examined a culture of reporting within those centres holistically.

Yes, my misunderstanding is – thank you?---Thanks, Commissioner.

MR MORRISSEY: Can I move to the heading Ancillary Issues on page 7 of 34. There’s a number of specifics here and some of them seem to be specific issues that you have raised, but they’re matters that are of interest to the Commission and also of interest to the vulnerable people who were dealt with. So looking at that paragraph begin:

Ancillary issues identified.

One that you’ve noted is:

Inconsistencies in relationship between police and Correctional Services in the provision of witness statements and physical evidence.

Now, could we just deal first with witness statements and then deal with the physical evidence which includes CCTV, alleged weapons and other hard pieces of evidence that could become exhibits in the right circumstances. With respect to the taking of statements, to what ..... regulation that you made before that you haven’t been asked to deal with causes, but what, having identified the problem as you have here, what are you seeing as a way forward and what are you urging as a way forward to deal with the taking of statements and the making available of potential witnesses to take statements?---I’m just trying to find that particular area you’re looking at, sir. Is it in the first paragraph or - - -

Yes. The second line there, you see:

In the provision of witness statements.

Do you see the second line, end of it?---Yes.

And I think you have given more detail about that over the page. But, in essence, what you pointed to was difficulties in getting witnesses to make statements, finding time to make them - - -?---Yes.

- - - getting people to proceed to make a complaint, a formal complaint with a view to - - -?---It appeared, on the face of things, that youth justice officers were often being asked to provide their statements in regards to issues that had occurred within their workplace in their own time.


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So there’s the problem of them having to make time themselves to go and participate in a potentially lengthy process .....?---Yes.

Were there any issues – in terms of the workers you understood that sometimes workers in youth justice felt various pressures not to make statements, partly they had to work with the kids, partly they had to be loyal to their friends, did you notice any such pressures and is there a way of dealing with those?---I can’t say that that stood out to me, once again in a snapshot view, as a glaring issue, but was very apparent to me was the difficulties in having people meet appointments outside work in regards to workplace incidents.

Did you find any instances of reluctance by youth justice officers to pursue complaints even when it was quite clear they were the victim of something that had occurred?---Yes.

And what did you attribute that to?---I wasn’t sure. The question in my mind was whether, perhaps, these were regular occurrences and they felt they had been dealt with internally and fairly.

Yes?---Or whether there was a general reluctance because people had to expend a great deal of their own to come and seek further assistance from the police.

Could we turn from statements to the provision of hard evidence now. The Commission has heard some instances of, during investigations, hard evidence being difficult to locate or, indeed, impossible to locate and in your investigation you found something similar. There are instances of CCTV not being produced and instances of particular hard evidence. What is it that you see is the – what did you think was the way forward in promoting the gaining of hard evidence by police investigators?---Certainly, there is a need, when that evidence is identified, to identify it at the earliest possible juncture in an inquiry and to seek it out. One of the recommendations that was made was to enhance the role of an officer currently assigned to the adult correctional facility, albeit more in an information role at the moment, to move over, perhaps under an MAU to look after youth detention as well - - -

Could I ask you to turn – is that the matter that you referred to leading to recommendation number 5?---What page are we on?

Page 8 of 34?---Yes.

Yes, could you – sorry, I interrupted you and that’s – I’m just glad we are on the same page - - -?---Yes. Sure.

- - - could you explain to the Commissioners what is hoped by that if that measure was adopted?---Well, it was my view that perhaps we could have someone closer to on-site, that if, for instance, delays were going to be experienced due to other issues arising, that we could notify some type of liaison officer who could begin the process


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of asking for things like CCTV footage to be retained, to ensure that it remained available to the investigators.

As things currently stand, to whom would a police investigator turn in order to secure the CCTV? Do they go to the professional standards unit or do they go to the general manager, superintendent of the institution itself?---My own experience within detention centres conducting investigations has been fairly limited. Looking across the reviews that were conducted, it would appear that a number of avenues might have been pursued. So at times I could see evidence that CCTV had been obtained from the professional standards unit, at other times it appeared that CCTV was being sought from senior officers within the centres.

COMMISSIONER GOODA: Do you think there would be – is there a problem with that? Sometimes from the centres themselves if some of the officers are the subject of complaints?---Potentially, sir. What I do certainly think, Commissioner, is that we can always simplify processes by having a single point of contact - - -

That’s like - - -?--- - - - to attempt to elicit this type of evidence.

The recommendation number 5 takes it out of - - -?---That’s one way that I thought that we might be able to at least partially deal with that issue, yes.

Thank you.

MR MORRISSEY: I just want to turn to recommendation number 4, we’re still on the same page 8 of 34, at the top here you’ve mentioned there was a number of cases identified in which matters concerning youths were reported to police who did not attend or have direct contact with the youth in question, and you’ve said that there were a number of matters identified to follow up. I’m not going to ask you about individual cases?---Sure.

But could I ask you this: in terms of the – one of the challenges facing police investigating allegations by young persons in detention is to gain the trust of those young persons so they can give their evidence – give of their best in giving their evidence; would you agree with that as a general - - -?---As a general proposition?

Yes?---Yes.

And do you agree also that there’s – where police delay in attending, whether it’s for good reasons or other reasons, the effect for the young person may be an alienating and, if you like, disappointing effect where they might be discouraged from pursuing a complaint because there has been a lapse of time because of police attendance?---Sir, I’m happy to answer that question, however, because you placed it within the context of this paragraph, I feel I need to provide some more information.

Yes. That’s fine. Please do?---So the largest majority of those cases that we identified and which youths hadn’t been spoken to, referred to conflict between


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detainees where there was limited information to suggest that it had been anything but that.

Yes?---So I do agree with your proposition, sir, that it’s extremely important that if a detainee makes a complaint and wants the assistance of the police, that we should attend there as promptly as we can. However, in these cases, these were reports made by Correctional Services in which they stated that an incident had occurred. Now, they had stated at the time that police attendance was not required. As part of this review, I thought that it would be best to exercise caution with that and so people were sent out to speak to the youths in question and, to the best of my knowledge, most of those youths indicated that Correctional Services had advised their wishes quite accurately.

Just on that topic - - -

COMMISSIONER WHITE: Can I - - -

MR MORRISSEY: Sorry. Go on.

COMMISSIONER WHITE: Can I just ask this question then: because it’s a Corrections ambiance where they are in detention and if an allegation is particularly against a youth justice officer, one can see that there might be some hesitation when the blood has cooled to think, “Hmm, this might not be such a good idea to pursue this complaint, I’m here for a good deal longer”. Now, police have to be mindful of that scenario, even though the young person might say, “I don’t wish to continue with it”. If there was actual evidence, for example, CCTV would often reveal that, of an assault, surely the police would have to override that young person’s actions?---Yes, Commissioner, I actually go to that in my statement and talk about areas in which I think it’s best to respect the wishes of young people because we always have to take into account their wishes. However, I’ve stated, within the body of my statement, that I believe that any allegation that involves the exploitation or the exercise of unlawful force against a youth by an adult would not fall within those parameters, it would not be an appropriate course of action.

Thank you.

MR MORRISSEY: Just to clarify that, could we just take you to 41 and 42 of your statement there – sorry, in fact, I won’t trouble you with that for now. That’s okay. Don’t worry. Sorry, I just – you’ve mentioned – sorry, in the report, the following appears – and this is still at page 8 of 44 – that decision makers, particularly at the triage level, are required to be mindful of the special responsibilities that police have to youths. Then you’ve pointed out, subsequently, the issue that you just raised. In the situations, though, where a young person makes an allegation either against staff or against the institution more broadly, for example, that there has been a fight but the institution should have looked after them better or should have protected them better in some way. In that sort of situation, what is there that can be done to improve response times by police. In other words, to guarantee as speedy as possible


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attendance. Is that the role of the intelligence officer that you refer to or potential role?---No. At this stage, most calls to the police go through our joint emergency services communication centre. Now, there are particular policies that apply to the Police Force, such as graded response and our investigation management guidelines that talk about grades of response and how those things should be assessed.

Are those grades – may I just interject for a moment, are those grades sensitive to this issue, the issue of this particular vulnerability?---Not specifically, no.

No. Is there capacity to do that, to develop those response guidelines with respect to the – what you’ve described here as the special responsibility police have to youths?---I think the – a matter of the changing of policy is probably left to someone other than me. I think, generally, we have – we have the Care and Protection of Children Act. We have the Youth Justice Act.

Yes?---I think most police are cognisant of the fact that these are particularly special members of our community that require a greater level of care.

Thank you very much. Yes, those are the questions I have.

MR JACOBI: I’ve got no re-examination.

COMMISSIONER WHITE: Thanks, Mr Jacobi. Thank you very much, indeed, for assisting the Royal Commission with its inquiries---Thank you, Commissioners.

We are also very grateful that the Commissioner directed your taskforce to carry out those investigations. It certainly saved the Commission a great deal of work?---I’m glad we were of assistance.

We are much obliged to you for that document---Thank you very much.


MR MORRISSEY: Commissioners, It’s now time for the youth justice panel. Commissioners, we now have the legal processes panel, we need to have a number of chairs put into position.

COMMISSIONER WHITE: Yes. We will allow you to do some scene changing.

MR MORRISSEY: Thank you. The witnesses I will call, in any event, are Sandy Lau, Nicola MacCarron, Shahleena Musk and Anna Gill as part of that.

COMMISSIONER WHITE: Mr Morrissey, can I just ask you a housekeeping-type question about – I have two statements from Sandy Lau, one dated 2 May and the


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other 7 May. I did a comparison, they’re virtually identical but one has a couple more paragraphs. Which is the - - -

MR MORRISSEY: One second, please. It may occasion some small inconvenience, but because of the way that the questions are structured we would like to tender both, even though the second is merely an augmented version of the first.

COMMISSIONER WHITE: Very slightly, isn’t it. Just slightly.

MR MORRISSEY: It is slightly, but it’s because we have structured our questions with respect to the first of those and there has been an element of haste in doing those. So I would seek to tender both.

MR JACOBI: Perhaps if I can explain, I appear for Ms Lau - - -


MR JACOBI: - - - it was intended – there were some additional matters that the Commission sought to have addressed and rather than produce a supplementary and have to refer to both it was intended the second be substituted for the first. So that was the intent.

COMMISSIONER WHITE: It caused a little grief on my part trying to actually line them up to find out where the changes were, because there clearly were some. In any event, thank you for that explanation, Mr Jacobi.

MS SWIFT: Commissioners, could I announce my appearance. My name is Swift – S-w-i-f-t – I appear for Ms Shahleena Musk, who is in this panel.

COMMISSIONER WHITE: You appear for Ms Musk and Ms MacCarron?

MS SWIFT: Ms Musk.

COMMISSIONER WHITE: And MacCarron?

MS SWIFT: No. Just Musk.

COMMISSIONER WHITE: Just Ms Musk?

MS SWIFT: Yes.


MS GRAHAM: Commissioners, I appear for Ms Gill from CAALAS.

COMMISSIONER WHITE: Yes. Thank you, Ms Graham.


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MR MORRISSEY: Thank you. Commissioners, I call, perhaps one-by-one, Sandy Lau, Nicola MacCarron, Shahleena Musk and Anna Gill, and perhaps they could be sworn.

COMMISSIONER WHITE: One at a time.

MR MORRISSEY: One at a time. Yes.


<SANDY LAU, SWORN [1.49 pm]

<NICOLA MacCARRON, SWORN [1.49 pm]

<SHAHLEENA MUSK, SWORN [1.49 pm]

<ANNA GILL, AFFIRMED [1.49 pm]

MR MORRISSEY: Could I commence with Ms Lau. Would you state your full name please?

MS LAU: Sandy Lau.

MR MORRISSEY: What is your current occupation?

MS LAU: I’m a prosecutor with the DPP.

COMMISSIONER WHITE: You just might need to do something about being heard, because it’s not very convenient the way everyone is being seated for that purpose. Could you remember to swing around the microphone so that - - -

MS LAU: Yes, I will.

COMMISSIONER WHITE: Thank you. Thank you very much, Ms Lau.

MR MORRISSEY: Yes, Ms Lau. And in the course of your employment were you a – sorry – what’s your current – the nature of your current employment?

MS LAU: I’m a supervising summary prosecutor with the DPP in the Northern Territory.

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MR MORRISSEY: Prior to being a supervising summary prosecutor what was your role?

MS LAU: I was a senior summary prosecutor.

MR MORRISSEY: Have you prepared a statement in two editions, essentially, statement number 24 for the purposes of these proceedings?

MS LAU: Yes, I have.

MR MORRISSEY: Have you had the chance to read that for today’s proceeding?


MR MORRISSEY: Are contents true and correct?

MS LAU: Yes.

MR MORRISSEY: Thank you. I tender each of those statements.

COMMISSIONER WHITE: I guess they will have to be two exhibits, then, Mr Morrissey.

MR MORRISSEY:

COMMISSIONER WHITE: So for the statement of the 2 May 2017, exhibit 350.

EXHIBIT #350 STATEMENT OF SANDY LAU DATED 02/05/2017

COMMISSIONER WHITE: And for the statement dated 7 May 2015, exhibit 351.


MR MORRISSEY: Ms MacCarron, would you state your full name, please.

MS MacCARRON: Nicola Marie MacCarron.

MR MORRISSEY: And what’s your current occupation?

MS MacCARRON: I am currently a solicitor at the Northern Territory Legal Aid Commission.

MR MORRISSEY: We can’t - - -


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COMMISSIONER WHITE: Sorry, we just – we can’t here you at all, Ms MacCarron.

MS MacCARRON: I apologise, Commissioner. I’m currently a solicitor at the Northern Territory Legal Aid Commission.

MR MORRISSEY: Yes. And how long have you been in that position?

MS MacCARRON: Almost five years. Five years in August.

MR MORRISSEY: Thank you. Did you prepare a statement for these proceedings.

MS MacCARRON: Yes, I did.

MR MORRISSEY: Have you read that statement?

MS MacCARRON: Yes, I have.

MR MORRISSEY: Are the contents true and correct?

MS MacCARRON: Yes, it is.

MR MORRISSEY: I tender that statement.


EXHIBIT #352 STATEMENT OF NICOLA MACCARRON

MR MORRISSEY: Ms Musk, what is your full name?

MS MUSK: Shahleena Raquel Musk.

MR MORRISSEY: What’s your occupation?

MS MUSK: I’m a senior policy advocate at the Human Rights Law Centre in Melbourne.

MR MORRISSEY: Before you held that position, were you employed at NAAJA and in what capacity?

MS MUSK: I’ve been a – I’ve performed a range of roles over my eight and a half years at NAAJA. More recently for over three half years I was a senior youth lawyer and managing the youth team.


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MR MORRISSEY: Thank you. And have you prepared a statement for this proceeding?

MS MUSK: Yes. There are two statements.

COMMISSIONER WHITE: Yes. They’re both bearing the same date, Mr Morrissey.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: Do you want them both in for this one or the - - -

MR MORRISSEY: We want the – well, hang on – sorry, just a moment, please. We will just identify that by number. Excuse me, sorry, Ms Musk. Statement number 27.

COMMISSIONER WHITE: Which is dated – is it the one – you have to, perhaps, do better than that for me.

MR MORRISSEY: 11 April.

COMMISSIONER WHITE: Is it the one of 119 paragraphs or the one of 116 paragraphs?

MR MORRISSEY: Just excuse me one moment, Commissioner, and we will give you an answer to that question.

MS ..........: It’s the one of 119 paragraphs.

MR MORRISSEY: The 119 paragraph statement.

COMMISSIONER WHITE: Thank you. I think we will have to identify it in that way, then. So Ms Musk’s statement of 11 April of 119 paragraphs is exhibit 353.

EXHIBIT #353 STATEMENT OF MS MUSK DATED 11/04/2017

MR MORRISSEY: Ms Gill, would you state your full name.

MS GILL: Anna Louise Gill.

MR MORRISSEY: And what is your occupation?

MS GILL: I’m the local and youth court practice manager CAALAS.

MR MORRISSEY: How long have you been employed at CAALAS?


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MS GILL: Since 2007.

MR MORRISSEY: Did you prepare a statement for this - - -

MS GILL: I did.

MR MORRISSEY: For this panel. And have you had the chance to read that statement for the purposes of - - -

MS GILL: Yes.

MR MORRISSEY: And are the contents true and correct?

MS GILL: Yes, they are.

MR MORRISSEY: Thank you. I tender that statement as well.


EXHIBIT #354 STATEMENT OF MS GILL

MR MORRISSEY: We have a wide range of matters to go to here and I might just commence, if I could, by asking questions arising from the issue of delays from arrest to court. And perhaps if I could just commence by asking you, Ms Gill, about that topic, you’ve made a comment at paragraph 12 of your statement. What’s your experience of that issue, delays from arrest to charge to court.

MS GILL: Well, as the situation stands there’s no set period that police have to abide by in terms of investigating offences when youths are charged. It’s just a reasonable period, which means that it’s at the full discretion of the police in terms of their investigations. So I’m aware of situations where young children have been held – I think the longest we have had recently was 36 hours before being brought before a court.

MR MORRISSEY: How common is it that children are held for lengthy periods?

MS GILL: That’s a - - -

MR MORRISSEY: Extreme - - -

MS GILL: - - - particularly extreme example, but certainly 24 hours wouldn’t be abnormal.

MR MORRISSEY: Yes. And what are the reasons for that period of time, as police express it or as you’ve observed.


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MS GILL: Often it appears to be as part of their investigation they go looking for other co-offenders, conduct records of interview with each of them and often that forms their, the basis of charges against each co-offenders. That obviously all takes some time.

MR MORRISSEY: Alright. Thank you. Could I just ask Ms MacCarron, if I could direct a question to you about that. What’s the effect of that delay? When delays like that happen, what’s the effect for the young person and for their effective representation?

MS MacCARRON: Well, the young person is held in custody in that time, if they are arrested and not granted bail. As for their representation it’s likely, when a young person is being held in custody in that time, we don’t actually know that they are there. We will only be aware of them when they present at court, usually in the cells on the morning of the day that they are scheduled to appear. So, for instance, if someone is arrested on a Friday afternoon it is unlikely that they will – we will – they will only be able to appear in court on the Monday morning, and we will only find out about their presence there, then.

MR MORRISSEY: And how does that impact upon your ability to take instructions or to formulate strategies for making applications for bail and so on?

MS MacCARRON: It becomes very difficult. We will only get the paperwork in regards to that child on the day they appear in court. Usually, that paperwork – well, there are delays in getting that paperwork. It will often be closer to 10 am when we get the paperwork, if not after. We will have to meet with the child, find out where their responsible adults are, if they are not there, make arrangements, plan – make a plan for bail and go from there. It happens all very quickly. If we are not able to do those things on the day, before we are required to appear in court, then the child will inevitably be remand again.

MR MORRISSEY: Ms Gill, could I just ask you a question arising from this. Are there particular issues in Alice Springs for female detainees who are placed in the watch-house?

MS GILL: Yes, there are. If a female detainee is not granted bail, the usual course would be that the youth be remanded at the detention centre. At the current time, the Alice Springs detention centre is not receiving female detainees, so they are remaining in the watch-house for extended periods of time. Even periods after they’re brought before a court and if they are once again remanded by the local – sorry, by the Youth Court, they will return to the watch-house and have to wait for the next court date in custody in the Alice Springs watch-house. That’s particularly difficult for females. They’re held in a cell at the front of the watch-house. We have had one young lady recently, I think – she had to put the mattress up to block the glass to use the toilet, things like that, because her cell was visible to everybody.

COMMISSIONER WHITE: No drop – no drop down curtain inside the - - -

.ROYAL COMMISSION 9.5.17 P-3603 LAU/MacCARRON/MUSK/GILL ©Commonwealth of Australia

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MS GILL: No. And obviously watch-houses - - -

COMMISSIONER WHITE: I mean, that’s not a – that’s not a big financial burden on the – on the police budget.

MS GILL: No.

COMMISSIONER WHITE: Has anyone advocated for something as simple as that?

MS GILL: I don’t know. I expect there may be concerns around what’s allowed in the cell, in terms of safety issues. Because it’s a watch-house, there’s – it’s a very uncomfortable place to be held for longer than what would normally be just a processing time period for someone else. But we had a young lady, I believe it was six days she spent in the Alice Springs watch-house, and the detention centre have actually said recently that they’re going to send females up to Don Dale, even if it’s only for a period of a few days.

COMMISSIONER GOODA: So how long have they not been receiving young women in the - - -

MS GILL: It’s become a real issue in the last few months. There has been issues with young people, I think in domestic violence orders between males and females out there, and I think the – the – the detention centre have just decided the risk and the issues around it are too much, and they have decided that’s how they are going to deal with it. They will just hold. Because I understand the females often were held in the back cells, which are the old isolation cells, to be separated.

MR MORRISSEY: Could I just, Ms Musk, could I direct a question to you please, concerning the issue of notification of when a young person is in custody. First of all, can you says there a process in case whereby NAAJA or CAALAS are notified that a young person has come into custody?

MS MUSK: Well, I’m aware CAALAS has a protocol in place with NT Police in the Alice Springs region, although the half Northern Territory where they operate out of that – if there’s an Aboriginal youth in custody then CAALAS will be notified. In regards to NAAJA and NT Legal Aid, there is no protocol in place. As a lawyer who is responsible and available 24/7, we have got a custody phone, always – always accessible for communications regarding youth in custody. It is very rare to get phone calls from NT police that there’s a youth in custody.

Both myself and Nicola, who are – have been youth lawyers for many years, we over periods of time will have the custody phone, and I can talk to many, many examples where I’ve been aware the next day that a number of young people have been in custody, but I didn’t receive a phone call the night before to notify me that these young people were in custody. So there’s no protocol in place, which would have been consistent with the Royal Commission into Aboriginal Deaths in Custody


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around notifying Aboriginal youth in custody, but there’s nothing in place in the Northern Territory.

MR MORRISSEY: I take it from what you are saying a protocol would be highly desirable?

MS MUSK: It would be highly desirable.

MR MORRISSEY: Yes.

MS MUSK: And in line with what CAALAS has got, which ensures that young people can speak to a lawyer in that circumstance. Someone from CAALAS can attend at the police station to speak to the young person to notify a responsible adult or family that that young person is in custody, and that doesn’t exist in the top half of the Northern Territory.

MR MORRISSEY: Ms Lau, can I direct a question to you, please, about that. If such a protocol was to be contemplated, can you see any institutional blockages to there being such a protocol and if there to be such a protocol who would you suggest it should obtain?

MS LAU: I don’t think there would be any impediment if – if police were to provide this information to defence. I don’t see any issues from a prosecution perspective. We don’t get notified, also, when a young person is in custody, and we only find out when we get the court list for the day.

MR MORRISSEY: Yes. Thank you. Could I move to - - -

COMMISSIONER WHITE: Can I just take that up with - - -

MR MORRISSEY: Yes, of course.

COMMISSIONER WHITE: You, in a sense, don’t know what work you will have either, until the last moment, either do you?

MS LAU: No.

COMMISSIONER WHITE: Reading your statement, it’s pretty plain that you are in the same position as the defence lawyers, from that point of view.

MS LAU: And I try to highlight the reason for the delay in getting the paperwork to defence at court, and that’s because depending how many people are remanded overnight – both adults and young people – when the judicial operation section collects a file and lays charges for that morning, the overnight arrests we’re talking about, depending how many files there are, and then the logistical issues that I’ve referred to in paragraphs 17 and 26 of the statement dated 7 May. I will only get the paperwork at court when rounds deliver the files to court to me, and I provide that to


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defence. So whilst Ms MacCarron raised the issue of the delay in taking instructions and opposing bail, we’re also – prosecution are also reading the files for the first time at the bar table.

COMMISSIONER WHITE: And what – apart from being collocated with those who prepare the charges and the files, have you got any other suggestions as to how this might be improved? Because, of course, from a justice point of view, it’s pretty appalling, and I speak from my experience, many years as a judge, that this is an almost impossible load for both prosecutors and defence lawyers to carry.

MS LAU: One suggestion would be for electronic briefs – for a system of electronic briefs to be implemented in the Northern Territory. That would – I suppose the delay would significantly be shortened, and ensuring that both prosecution and defence are adequately prepared before court commences at 10 o’clock.

COMMISSIONER WHITE: And, at the moment, you would need to have some capacity to have a program that shared these?

MS LAU: Yes, with the court and also with defence.

MR MORRISSEY: May I just ask about that. To your knowledge, are computer systems that are used in the court system compatible with what is used by the Crown, the prosecution, and by the police, and finally by the defence organisations?

MS LAU: It depends what media format you’re talking about. Certainly, we have a lot of issues with CCTV.

MR MORRISSEY: Yes.

MS LAU: because we can’t change the format of CCTV, So police can only – depending on the security system a shop utilises, they can only download using that system, and we have to install a player in order to play that program. In relation to statements, though, it will just be on PDF, so I don’t see any issues with serving those paper documents that way.

MR MORRISSEY: Ms Lau, could I remain with you, possibly. We just – I’m going to try to move through the topics. We’ve got some time pressures, I apologise for cutting short what’s interesting. In your statement, you made reference to a practice of, on some occasions at least, of overcharging and in particular at paragraph 42 you said this:

There has been, in the recent past, 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 one spree of offending. As a result, many charges were withdrawn and the matter finally proceeded as a plea to 27 charges.


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Can you say what – just from your observation, what are the parameters of the problem of overcharging, and what do you think lies behind the practice? What do you think is the cause?

MS LAU: I think in this scenario it was much to do with relying on co-offenders’ admissions. In this specific case there were six young people. All were charged, all made different admissions, effectively, to over 100 charges. Police in this instance relied on the co-offenders’ admission to form the basis of the charge initially.

MR MORRISSEY: Yes, I understand that. Could I just ask, with respect to that: have you – as a prosecutor, you’re aware of the evidentiary problems that that entails. That obviously, viewed in isolation, an admission by one person is simply not admissible against another.

MS LAU: Yes.

MR MORRISSEY: Do you think the police are – the charging police are aware of the evidentiary problems of doing that?

MS LAU: This issue has been raised with police in our regular meetings with them, and I believe that this practice has significantly reduced since those conversations took place.

MR MORRISSEY: Yes. Can you say when those conversations took place?

MS LAU: I would be guessing. I would say that - - - MR MORRISSEY: You don’t have to guess, but estimate.

MS LAU: - - - later part of last year.

MR MORRISSEY: Alright. Thank you. Could I ask Ms MacCarron, please: what’s the effect of overcharging like that in situations where a person is seeking bail shortly after being charged with a large number of offences?

MS MacCARRON: Well, obviously, when a file comes before the court with a large number of offences, be that 40, be it 80, it obviously is not a good look for that child and it does seem, in my opinion, that the children who are being charged with such numbers of offenders are what’s colloquially termed the “frequent flyers”. In that case, the prosecution will ultimately – or inevitably oppose bail. They will often, and I mean no offence to my friend, in that circumstance positively assert that there is further evidence forthcoming. That might be CCTV, it might be forensics. That will be said to the court, the judge will not be minded to grant bail, the young person will be remanded in custody, often for a lengthy period of time.

And often in these circumstances you will find that the young person is saying, “I didn’t do that. I may have done one, two and three but I didn’t do the other 57.”


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And in that case you set the matter for hearing and it will be a number of months. Well - - -

MR MORRISSEY: Could I direct a question to Ms Musk, arising out of all of that. How easy – when there’s a bail application like that and police indicate, “We have charged with 100 offences, we expect there to be evidence.” How easy it for you as a lawyer, coming in cold and quickly into a case, to test that evidence so that the magistrate can make a reasoned decision?

MS MUSK: It’s pretty difficult in the sense that police, or prosecutions through the police, will assert that there is evidence to support all these charges, and one would have thought prosecutions would not be pursuing charges where there’s no real prospects of a finding of guilt. So there should be evidential material there, and then if they’re laying the charge and filing in the court, and I’ve got concerns around that, and there has been a number of complaints that have been made by NAAJA in relation to overcharging, and charging whether there’s insufficient evidence or no reasonable prospects. When it comes to applying for bail it is, as Ms MacCarron said, a bad look.

The magistrate is being told from the prosecutions that, “There is further material coming, we have been told that there’s CCTV.” But there’s no clarity around the nature of the CCTV, whether or not it actually identifies individual X or Y, and it’s just assertions from the bar table and it really hard and, as Ms MacCarron said, the majority of the children who are, in a sense, targeted for this are children who are known to the court and of course known to the police. So this person has got a history of similar offending. This person is on an order at this present, so there’s all these things that stack up against the young person.

So it’s not a presumption of innocence. It seems there’s a lot stacked up against getting that young person remanded and more than often the young person are remanded at the time they’re brought to court. So they would have had a police bail application refused, and they will find themselves in court, so they’re already in the dock when you’re trying to put a case for bail.

MR MORRISSEY: Could I just stay with you and ask about the question of charging. When charges are laid, are you finding that there’s an increase in the amount of – in the use of the arrest mechanism, rather than the summons mechanism, and could you say something about what the effect of that is?

MS MUSK: Yes. So the legislation actually requires – well, imposes upon police an obligation to pursue, I guess, the attendance at court by way of summons as opposed to arrest, but my experience over the many years I’ve been practising in the Youth Court is police will arrest a young person for the purpose of investigation, for a vast array of offences, but also for an offence which I don’t believe should be pursued by way of arrest, is a breach of bail. And that’s something which NAAJA has written to police around, and I’ve put in my evidence around young people being arrested at their school, specifically for offending like breach of bail or for offending


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which isn’t said to be recurring offending, or where there’s a perception that they’re likely to commit further offences, so there’s evidence in my statement – material in my statement that go to explain where they’re acting in contravention of 22 of the Young Offenders Act.

MR MORRISSEY: I was about to take you – so yes ..... section 22.

MS MUSK: Youth Justice Act.

MR MORRISSEY: Yes. Could I turn to Ms Gill, please. Sorry, we have to sort of keep moving along here. One of the issues that has arisen is the conduct of the electronic records of interview, and here there appear to be issues that have arisen concerning the presence of a responsible adult, or the presence of a lawyer, or the presence of what could be called a support person. Can I just ask you for your impression about that. We have heard, for example, about the lack of notification, outside of your area, of lawyers. Could you say the pros and cons of that, and particularly say what the value of the support person is, and what the problems are with the support persons that actually get there.

MS GILL: I think in Alice Springs, because it’s a smaller town, the support persons we – that are relied upon more by police tend to be family members. It’s not like up here, where I understand the Red Cross are often used. We do have another service, and I believe it is the Red Cross, but I very rarely see a non-family member on records of interview. One problem that I notice in records of interview often is the support person is told that they’re not allowed to intervene, they’re purely there to be a presence, I guess a comforting presence for the young person, but they’re not actually meant to intervene in the process, and that’s something I’ve seen police tell support people in records of interview.

MR MORRISSEY: I appreciate the police tell them that. Can I ask you whether you’ve ever seen any – or perhaps ..... I will direct this question to Ms Lau, if I could. May I just ask you this: in terms of the role of the support person there, have you seen instances – are you aware of instances where the support person perhaps has not performed the role, perhaps through ignorance of the role, perhaps not advising the person properly about their rights to legal representation, or to a lawyer, or to silence, or so on?

MS LAU: You mean the police officer when they’re explaining the role of the support person?

MR MORRISSEY: Well, I mean – yes, well, perhaps there’s an interrelationship between the two. What I mean is: have you seen – have you observed instances where the support person has not ensured that the rights are given by the police?

MS LAU: I haven’t directly, no.

MR MORRISSEY: What do you see as the role of the support person?


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MS LAU: I haven’t seen – obviously, I’ve seen lots of records of interview where there is a support person but I haven’t seen one where police gave directions to say effectively, “You are not allowed to speak.” I’ve not heard one couched in those terms.

MR MORRISSEY: Perhaps if we come back to Ms MacCarron. Can you say - - -

COMMISSIONER WHITE: Just before we - - -

MR MORRISSEY: Sorry .....

COMMISSIONER WHITE: - - - move that one. But have you seen any instances where the police explain to the support person the positive aspects of their role?


COMMISSIONER WHITE: You have?

MS LAU: I have.

COMMISSIONER WHITE: Right. Thank you.

MR MORRISSEY: Ms MacCarron, can I just ask you this: you have made some comments at different times about the support person and their role. What would you like to see by way of support and education for support persons to ensure they are in a position to perform their function.

MS MacCARRON: Well, firstly, just perhaps if I can address what Ms Lau said, and perhaps we look at the interviews differently, but I see the police as always delivering the same rote spiel and that is, “You can be there for the young person, you are allowed to support them, but you are not to interrupt, and you are not to – to merely do anything merely to sit there.” As my friend said .....

MR MORRISSEY: So it’s by way of emotional support only?

MS MacCARRON: Emotional support.

MR MORRISSEY: Yes.

MS MacCARRON: Really, what should be happening is that the explanation of the right to silence, and the right against self-incrimination, should be explained to the support person, the support person should be able to repeat that back to the police officer, and should understand it themselves. And this is particularly relevant to support people who may be recent migrants or Indigenous people who do not have English as their first language.


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MR MORRISSEY: So what sort of – what can be done? I mean, we’re living in the real world that it’s going to be community members that perform that role. What do you see as a positive way of augmenting their confidence and their knowledge?

MS MacCARRON: Perhaps there needs to be training programs in place, particularly for the service, which I believe is the Red Cross at the moment, that is there as the default support person if the young person can’t have anyone else. They should be trained appropriately, and should understand the rules and the rights themselves.

MR MORRISSEY: Very well. Thank you. Could I turn to the issue of bail, now. We have got a number of topics that we need to work through. And there is an initial question that I wanted to go to, which is somewhat central here, concerning the offence of breach of bail. Perhaps if I could start with you, Ms Musk, here: what do you say about the offence of breach of bail? Should it apply to youth in the Northern Territory? What are the effects of it and what would you like to see happen to it?

MS MUSK: So I’ve seen a lot of reports and reviews into, I guess, the Northern Territory and also other jurisdictions around the offence of breach of bail and its application to young people, and in our experience working here, since breach of bail became applicable to young people, it actually contributed to the vast number of young people going into remand. That’s my experience, and I’m sure the statistics that will back that up. In other jurisdictions, it doesn’t apply to juveniles. So I think, in Victoria at least, I’m aware that they’ve got pro-bail provisions in their Bail Act which ensure that young people are not being arrested for an offence of breach of bail, they’re not being prosecuted for an offence of breach of bail, and there are a range of different considerations that the decision-maker must take into account at the time of determining whether or not to grant bail.

But in the Northern Territory, young people are entrapped by the same bail considerations as do apply to adults, presumptions against bail in the Bail Act apply to young people, there are no pro-bail considerations or particular youth specific provisions in the Youth Justice Act for young people.

MR MORRISSEY: Thank you. Ms Lau, can I take that up with you for a moment. Do you view there being any tension between the application of the Bail Act, with its various presumptions that apply in certain circumstances on the one hand, and its application to youths who are subject to the Youth Justice Act with its statutory presumptions on the other hand?

MS LAU: So bail presumptions under the Bail Act applies to youth but, in a way, they are read down in accordance with the principles of the Youth Justice Act, and in relation to bail conditions, they’re there for a reason and often the conditions imposed by the court is to assist the young person in taking away the environmental factors or temptation to go away and commit offending, such as if a young person generally commits offences with other young people at night-time, then the curfew and the non-association condition is to assist them from going out late at night and


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falling into the traps of reoffending with their usual co-offenders. So I think that bail conditions are there for a good reason.

MR MORRISSEY: Yes. I’m going to ask the others some questions about bail conditions, but could I ask you one more which appeared at paragraph 68 of your statement. You indicated this:

We have implemented a new procedure whereby youth prosecutors are now required to inform police whenever bail is varied or dispensed with. The information is provided to the watch commander and the officer in charge of the Trident Task Force each afternoon. That information is then disseminated by email to other officers of police. There appears to be some improvement in this area in the last few weeks:

Could you explain what lay behind that change and what the effects have been?

MS LAU: Effectively, they were cases before the court where young people were being arrested for breach of bail when either the bail condition had been dispensed with or the matters were finalised and no longer on bail. So that’s what prompted this assistance by prosecutions.

MR MORRISSEY: Alright. Thank you. Could I address a question to Ms Gill. There has been issues raised in the Commission from time to time about the proliferation of bail conditions. Judge Hannam actually mentioned this as well. What do you say about the proliferation of bail conditions? Do you see that there are occasions when it’s appropriate? Do you see there are occasions when there are too many conditions for the child to meaningfully understand them? What are your comments?

MS GILL: One – one thing concerned me in the past you may get a first offender youth who commits an unlawful entry in company with other people. They are then placed on a raft of conditions straight up, just almost as a matter of course, because they’re a youth. And sometimes the – and that would be like a curfew or sometimes reporting, that sort of thing. And in my – in my experience then they – if they have dysfunctional family at home, or there’s problems with staying at home, they then breach their curfew and obviously they get a charge of breach of bail. It’s another criminal charge, end up in custody again. I do think that for recidivist offenders who are constantly – I think my learned friend colleague referred to it as a – the “frequent flyers”, yes, there probably is need for conditions. But I do have reservations as to whether much thought is given, in imposing conditions, in taking into account the history of the youth, their family circumstances; that sort of thing.

MR MORRISSEY: We heard evidence from Judge Johnstone the other day concerning ways in which bail conditions can be communicated to the young person and some practice of texting conditions. Do you think – do you see – first of all, do you perceive that sometimes young people subject to bail don’t fully engage with or don’t understand their bail conditions? And secondly do you see the texting of the


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bail conditions and the use of social media that way as a potentially constructive step?

MS GILL: In relation to the texting, etcetera, most of my clients I don’t think would have a mobile phone.

MR MORRISSEY: Yes.

MS GILL: There may be a family mobile phone, but not something you can rely on. They regularly get lost, as well. But in relation to – sorry, the other part of your question was?

MR MORRISSEY: Well, do you see that – sorry, were you seeing kids – the first part of it was are you seeing kids not understand their bail conditions?

MS GILL: We have a bit of a different situation in that – because CAALAS is notified every time a youth is taken into custody, and that’s an informal agreement with the police in Alice Springs, invariably a lawyer will go down to the watch-house and see a youth in custody 24/7 in person, usually.

MR MORRISSEY: Yes. Alright.

MS GILL: So we get an opportunity to explain any bail conditions, because we will do the application.

MR MORRISSEY: Taking as the presumption that the police will impose these multiple conditions, bona fide, in other words I’m just asking you to assume the police, in the instance I’m talking to you about, feel they have a good reason to impose the individual conditions they do for the good of the young person. Could I ask, and perhaps I direct this question to Ms Musk – in the first instance anyway – can you see a way in which you could engage with police to simplify and reduce the number of conditions without compromising the intention that the police have in securing the person’s attendance at court in a safe and secure way?

MS MUSK: I have got an issue with how – it’s like my friend was saying, around bail conditions. It seems to be that you get the whole box and dice, rather than actually looking at what you’re trying to achieve, and that’s getting a young person to court, and that’s what bail should be about. Of course, it’s trying to prevent reoffending as well, but there isn’t any understanding of what the younger person’s living arrangements are, the family dynamics, or what needs to have – and I think it moves into the next big ticket item that’s around the failure that the NT doesn’t have bail support program. We don’t youth support officers, we don’t have services engaged to try and assist young people who are struggling, so there’s a real – like, huge gap in the system right there and then as, when young people are getting into trouble, why is it this criminalisation, why is this – this punitive approach?


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MR MORRISSEY: Can I just interrupt for one second. I just wanted to direct your answer to a particular condition that seems to proliferate. That’s the condition of a curfew. Now, is that – that seems to be imposed in a blanket way, and do you – what are the problems with the sort of blanket curfew requirement that you .....

MS MUSK: Yes. So the majority of the breaches of bail that I see in the Youth Court is breach of curfew, and there are so many reasons why young people breach curfew, and it can largely be a result of their living arrangements, the dysfunction in the family home. Many young people sign bail papers and they don’t even know the conditions, they just get told, “This will get you out.” This will – you know, “You sign this and you can go home.” And they don’t really pay much attention to that. And whether or not they’ve had someone who is a bit savvy with the criminal justice system as their responsible adult, or someone at the police station to properly inform the young person about their obligations – there’s so many issues wound up in this.

But I think the big issue I was trying to get at why – we’re not looking at why these young people are getting into trouble at this early stage, rather than simply it’s around trying to control and put all these, I guess, obligations on the young person which don’t really address why they’re getting into trouble in the first place.

COMMISSIONER WHITE: Aren’t a lot of the problems that are being sought to be confined by a curfew that many of the offences in fact occur at night, when they’re wandering around and breaking into shops, or the range of – the range of fairly standard property offences. And if it was simply a condition, which we heard they regularly impose in the Parramatta Youth Court in New South Wales, is not to be in a public place after a particular time, then where they actually sleep is of no business of the public authorities, for example. Is that something that has been trialled anywhere, here in the Northern Territory?

MS MUSK: Are you talking about bail - - -

COMMISSIONER WHITE: A bail condition that just says they’re not allowed to be out in a public place after 8 o’clock at night.

MS MUSK: With – the magistrates ordinarily would – there’s definitely the curfew conditions that’s one of the box and dice items. The other one is not to go to, like CBD of Darwin or CBD of Palmerston. There’s the non-association with certain young people, that have been alleged to have got in trouble with, so they’re the common type of conditions that are imposed.

COMMISSIONER WHITE: They deal with the problem, of course, more particularly do they not of young people in fact staying in various homes because – for whatever reason they have for doing so, so that they’re not in fact bailed to an address which is problematic for them. Does that reduce some of the problems?

MS MUSK: I was going to suggest that there are – I really believe that there should be a bail support program in the Northern Territory.


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MS MUSK: Akin to what is either in New South Wales or Victoria. So I know that – I think it’s in Victoria, where a young person is in police custody, there’s this after-hours service that’s called automatically and that after-hours service will go straight down on the station, engage with the young person, try to get in touch with family, so a responsible adult for the young person. If the young person is in care, they’ve got access to Child Protection records and information. That’s the type of service that we should be looking at here, is where young people at the station – that’s when we should be looking at the question of bail and that supports they need that can address the risk factors.

So if it is around, “This young person was caught walking around at night with X, Y and Z,” or, “This person doesn’t seem to have stable living arrangements,” a service that addresses that, rather than put these conditions on a young person where – that they have limited capacity to meet, because they are at risk. So it’s - - -

MR MORRISSEY: Sorry. May I interrupt there. I just – because we have to move to the next issue, but I just – Ms Lau, you made – this is the final bail issue that I wanted to raise here. You suggested there were two legislative possibilities at 67 of your statement. You mentioned the Bail Act could be amended or that there be youth specific bail provisions inserted into the Youth Justice Act. Currently, you have pointed to the somewhat uneasy situation whereby the presumptions in the Bail Act are read down according to some process of judicial reasoning by reference to the provisions in another Act. It’s a difficult process. Do you have a preference yourself out of the two options? Would you prefer to see a reform to the Bail Act, and keep all people under the Bail Act, or would you prefer to see specific bail provisions relating to youth?

MS LAU: Well, considering the Youth Justice Act covers a whole range of topics, there’s no reason why bail can’t be added into the Youth Justice Act, given it takes into account police powers, or forensic procedure in relation to young people, and sentencing and diversion, so I don’t see why bail can’t be incorporated into just the one Act.

MR MORRISSEY: It would create no difficulties for prosecutors dealing with bail issues to have that done?

MS LAU: No.

MR MORRISSEY: Can I turn to diversion. I’m sorry, because we could remain fruitfully on that for a long time. Turning to the issue of diversion, perhaps if I could commence by addressing this question to Ms MacCarron, and then I have a question for Ms Gill after that. So could I just ask, in relation to section 39 diversion, that’s pre-charge diversion, are you familiar with some of the areas that are exempted from the application of that? So traffic offences, persons who have two previous referrals,


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persons charged with certain classes of offence, and persons who fall within police discretion.

MS MacCARRON: Yes.

MR MORRISSEY: Could you please say, first of all, how do you see the process of diversion as currently working, given those restrictions?

MS MacCARRON: Well, my interpretation of section 39 is that all children who are arrested or charged should be considered for diversion unless they fall into those serious offences or are not – or do not fall into the mandatory diversion requirement. As I see it, however, it seems that police are not diverting children in the first instance: they are bringing them to court. It seems that there’s a small minority that get to go to diversion in the first instance, and they are normally the very first offenders. They’re not – it’s not – the consideration is not extended to all children who are charged. Indeed, if a child has a lengthy record, or if they have had the opportunity of diversion before, diversion is immediately, it seems, to be ruled out.

MR MORRISSEY: Let me just stop – can I stop, because I just want to get specific. So you’ve noted there are two categories, if you like, of situations where diversion won’t be considered. Firstly, there are mandatory situations.

MS MacCARRON: Yes.

MR MORRISSEY: And I want to ask you a question about that. Do you favour the retention of those mandatory categories that you can’t get diversion for traffic offences, you can’t get diversion .....

MS MacCARRON: No, absolutely I believe that traffic offences should fall within – well, should be able to be diverted. I’m at a loss as to explain why they are not, at the moment, but definitely I think the legislation should be amended to include traffic offences.

MR MORRISSEY: Alright. Could I just turn to the discretionary area. Your understanding is police exercise a discretion to refer for section 39 diversion according to a rather vague notion of the seriousness of the offence.

MS MacCARRON: Indeed.

MR MORRISSEY: Can you say what you understand to be the parameters of that - - -

MS MacCARRON: Well, legislatively the serious offences should be the ones that are set out in the regulations. However, it would seem that police will consider a particularly violent assault, or a string of unlawful entries, even if it is for a first time offender, as not suitable for diversion, because it’s too serious and it should come to


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court, and there is no reason for that, legislatively, why it should – that should be occurring.

MR MORRISSEY: Ms Gill, could you comment on the situation in Alice Springs as far as that goes.

MS GILL: It is a very similar situation. The definition of serious offending is quite vague, and it seems to be up the discretion of the individual officer who is dealing with the youth at the time and considering diversion. It does appear that a lot of kids, especially if they’re charged with a number of unlawful entries – which is the usual, we see a lot of that offending – are refused diversion, brought to court, and it feeds back into the overcharging as well, because if there’s overcharging they get refused diversion, and then if negotiations occur there’s delay. We have recently had a matter where a youth eventually got diversion, but some many weeks after the offending, after the charges had been negotiated down. So it sort of plays into a lot of other issues.

MR MORRISSEY: You’ve indicated that there’s, if you like, an interface what might be seen as overcharging and eligibility for diversion. When a court gets wind of that, is the court able to revisit the question of diversion or do they need the prosecutor’s imprimatur?

MS GILL: They need a prosecutor’s agreement.

MR MORRISSEY: Yes.

MS GILL: They can say diversion is a good idea, but it needs the agreement of prosecution for it to be referred back to diversion.

MR MORRISSEY: Do you see – what do you see about progression attitudes where a magistrate makes it clear that the magistrate is considering that diversion perhaps should be reconsidered? Do you see that the prosecutors proceed on a case by case basis, or do they proceed in in accordance with policy, or is it somewhat capricious depending upon who’s present?

MS GILL: In relation to the prosecution as distinct – I’m talking about court referred diversion, obviously - - -

MR MORRISSEY: Yes. We’ve jumped to that, yes.

MS GILL: - - - dealing with a prosecutor. And we have police prosecutors in Alice Springs. I think they’re actually quite reasonable in reconsidering diversion. Obviously, it helps if the court is on your side and wants them to reconsider diversion. But, to be honest, the police prosecutors we have in Alice Springs will more likely, probably, consider diversion than police at first instance.


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MR MORRISSEY: Yes. Thank you. Ms Lau, can I turn to you on that question. What’s your perception of the issue, where a magistrate finds that the matter perhaps should have been considered for diversion at an early stage, and is now considering doing under section 64. What are the matters you would take into account; what are the matters you would recommend the police prosecutors, when they handle it, take into account?

MS LAU: When I was practising in the Youth Justice Court, we had situations where the matter would be first mentioned and, through discussion with diversion, prosecution will find out that this young person actually hadn’t been considered for diversion previously. There has been occasions where, instead of going through the section 64 process, we have simply adjourned the matter and prosecution has referred that matter to diversion without formally going through section 64. I believe this process is still continuing, in Darwin at least.

MR MORRISSEY: Could I ask, is there liaison between yourselves, DPP prosecutors, and the police – who provide summary prosecutions as well – as to having a consistent and common position about how diversion is addressed?

MS LAU: I think we do have a – I think the approach taken, and it’s in my statement, that my understanding is that the current officer in charge of the Youth Diversion Unit is very accommodating in relation to accepting youths back on a section 64 referral. I don’t know if my friends’ experience is different to my experience.

MR MORRISSEY: Could I turn to the issues, and perhaps remaining with you for a moment, if I could, issues concerning the YDU and their role in diversion. Do you notice – or what do you say about the staffing levels of the YDU?

MS LAU: Well, the difficulty for prosecution is we try to communicate with Youth Diversion Unit the day before court for all the youths that are in court on diversion for the very next day, but unfortunately my understanding is that they have three youth diversion officers that service the whole of the Top End. Sometimes it is quite difficult to get them on the phone or on email to ask them specifically questions about a particular young person, for example. But - - -

MR MORRISSEY: Might I ask you the sorts ..... interrupt and then keep going, but what’s the source of your understanding that it’s – that they only have three persons?

MS LAU: Because I regularly have meetings over at the Youth Diversion Unit.

MR MORRISSEY: You know all three of them?

MS LAU: And I know all three of them.

MR MORRISSEY: Yes. Alright. Okay. Sorry – now, yes. But I interrupted you, so yes, proceed.


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MS LAU: And my understanding is that they’ve recently employed four additional youth diversion officers for the Top End, and one for Tennant Creek, and one for Alice Springs.

MR MORRISSEY: Can I ask you, finally, and just remaining with you: you’re aware there’s a provision for diversion under section 84 of the Act, but it seems hitherto to have been very seldom used. Are you familiar with it ever being used?

MS LAU: Yes. The presentence conference you are referring to?

MR MORRISSEY: Yes.

MS LAU: I believe in the last, I will say three years, maybe I’m aware of maybe twice a year that it has happened, on average.

MR MORRISSEY: Alright. So it’s extremely underutilised. Perhaps I can – so perhaps – I just wanted to turn to Ms Musk, if I could. Could I ask you that same question, I’ve got something else to come to, but in terms of that, are you aware of it ever being used?

MS MUSK: So it’s not diversion. It’s actually part of the sentencing process. So the court – it’s restorative practices. So when I was working in the Youth Court, probably twice a year, and back then it was facilitated by the community justice centre. I understand Jesuit Social Services are now convening a number of conferences, and I think Mr Sharp will be talking about that when he gives evidence, but yes. It’s part of the sentencing process. It’s a chance for restorative conference involving the victim, the offender, family of the offender, and possibly the victim, if it’s a juvenile, involves members of hopefully the Aboriginal family, if it involves Aboriginal people, and it – I take it you’ve had evidence already around restorative practices.

MR MORRISSEY: Yes, we have.

MS MUSK: So – but it has been rarely utilised simply because they didn’t have the resources to convene those conferences and the CJC were, at the time, in charge of the - - -

MR MORRISSEY: They’ve got a broader range of - - -

MS MUSK: Yes. So doing any types of mediations and mandated – I guess, mediations as part of the local court jurisdiction.

MR MORRISSEY: Alright. Thank you – sorry.

COMMISSIONER WHITE: And that – the restorative justice model is rather different from the usual mediations that you would expect in the small claims - - -


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MS MUSK: Yes. And there are issues around how they were being convened that was raised by the chief youth magistrate at the time, and it had to go – there needed to be an adjustment of – like a practice direction to try and guide the process and ensure it was addressing the concerns of the Chief Magistrate at the time.

MR MORRISSEY: Ms Gill, can I just ask your experience

…that was raised by the Chief Youth Magistrates at the time and it had to go – there needed to be an adjustment of – like a practice direction to try to guide the process and ensure that it was addressing the concerns of the Chief Magistrate at the time.

MR MORRISSEY: Ms Gill, can I just ask your experience of this issue in terms of - - -

MS GILL: I have never in my time working in Alice Springs working at CAALAS, I’m not aware of it ever happening.

MR MORRISSEY: Were you aware of any service that was capable of delivering the – of facilitating it or - - -

MS GILL: No.

MR MORRISSEY: As far as Darwin goes – as far as Alice Springs goes, it has been a dead letter really.

MS GILL: It’s just never been done.

MR MORRISSEY: Could I turn to the issue of delay now and perhaps if I could turn to Ms MacCarron for this one, you’ve made some comments about the delays that arise following diversion referrals, could you say a little about that and where you see the blockages to lie, what might be done about that.

MS MacCARRON: Well, from my time in the Youth Justice Court, if a child – this is when a child has either failed diversion or not been referred in the first instance.

MR MORRISSEY: Yes.

MS MacCARRON: They attend the court and they’re referred under section 64 of the Act, the matter will be adjourned for three weeks so that child can be assessed for diversion as to whether or not they are suitable. Usually, more often than not we would come back to court in three weeks. Luckily, the child was often excused at that juncture, but the lawyer would come back to court in three weeks and the child would not have yet been assessed. So the matter would then be, again, adjourned for three weeks. Sometimes that would happen another time. If the child was eventually assessed as suitable, the matter would then be adjourned for three months so that they may complete the diversion program. Often that wouldn’t occur within that three month time frame and the matter would be adjourned further for the diversion


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program to be complete. I’m not sure what the reasons were for that. I assume that sometimes it was the fault of the child if they were not attending, but I think it’s probably the broader problem that the youth diversion unit is not funded as it should be.

May I ask a - - -

COMMISSIONER WHITE: Who does the - - -

MR MORRISSEY: Sorry. Go on.

COMMISSIONER WHITE: Can I just ask you this, Ms MacCarron: who does the assessment of suitability for diversion? Is that the youth diversion unit ..... service provider of the program?

MR MORRISSEY: I can answer that if you want.

MS MacCARRON: I actually don’t know. I’m sorry.

MS MUSK: I can answer. So it’s – there’s contracted providers around the Northern Territory and Darwin is the YWCA and they’ve got a – at the time when I was operating in this jurisdiction there were two assessors, so they’re the people who meet with the young person and their responsible adult. They provided material around the background of the offending, so a quasi-statement of facts. The young person has to admit guilt and they work out if there’s identifiable victims, if they want to be part of a restorative justice process, they will talk to the victim. So it could take a length of time and the plan has to meet the needs of the young person and the causal factors, contributing factors to the offending.

So it could be if the kid has got issues around drug and alcohol, the kid might have to go to a number of counselling sessions. If there’s issues around mental health then he might have to go and get an assessment, but the restorative practice is the larger portion, the time consuming portion of the diversion plan. At the time I was working there, there was a waiting list of, I think it was around 50 kids that were waiting to be assessed and that was pushing all the other kids back. That was simply because in our discussions with the YWCA it was two people operating around the Darwin and Palmerton area, they were under-resourced, overworked and they had this backlog of young people waiting for the assessments, and then they had to convene the conference. They had to continue case managing and supporting the young person and there was a dearth of services that were supporting that plan.

MR MORRISSEY: Yes. May I just ask – sorry, because we have other topics to cover in the last remaining 10 to 15 minutes. May I just ask – direct a question here to Ms Lau. Do the DPP receive any sort of a note from the YDU in the course of administering diversion as to why a particular young person is not suitable for diversion?


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MS LAU: No, not formally. Do you mean as part of the section 64 - - -

MR MORRISSEY: Yes.

MS LAU: - - - process - - -

MR MORRISSEY: Yes. As part of the process - - -

MS LAU: - - - when they fail? There is a exit memo that is done and it’s written and its provided to defence as well and the court.

MR MORRISSEY: Yes.

MS LAU: It explains the reason why this person, this young person, didn’t complete diversion or has been exited from the diversion program.

MR MORRISSEY: It’s really an end point though – could I perhaps – could I just ask Ms Gill about that. How useful would it be for defence lawyers, defence representation, to be able to be informed about the progress of a particular young person on diversion and to coordinate that with any other legal matters they might be facing in the meantime.

MS GILL: It would be very helpful to know a bit more about diversion. Historically, it’s always been you refer them off, as part of the section 64, and then you might not see your client for three months and then – well, they do the diversion – sorry, it will be adjourned for two weeks in Alice Springs, they’re assessed as suitable, they go off and you just don’t know. Three months later you will be told they failed at the bar table. These days I understand that we are getting the exit reports when we request them. We’re not provided them as a matter of course, but I do understand that we are being given them. And I don’t think that’s a deliberate withholding of the reports, I think it’s just never been done as a matter of practice that we get the reports - - -

MR MORRISSEY: Yes.

MS GILL: - - - but now that we’re asking for them we are getting them. It would be very helpful to know more about what happens in the diversion realm, particularly – well, both from a court referral and the section 64 and diversion at the first instance because we do have services in Alice Springs that the lawyers have good relationships with and if you know a particular child is going through diversion you can make contact with the youth worker - - -

MR MORRISSEY: Yes.

MS GILL: - - - and say, “Can you assist them in making their appointments if their family can’t for whatever reason”.


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MR MORRISSEY: Could I just ask you, just in terms of – we’ve heard Judge Hannam that the judiciary was certainly shut out from any knowledge the way the diversion process was proceeding until the final point when either an exit memo, saying it wasn’t going to happen, was provided or otherwise. Can you, yourself, point out, if you like, how things would improve for the system generally, I don’t mean just on behalf of your client but for the system generally, if the diversion process was more open, more open to the judiciary, more open to the defence and more open to those who were able to assist the child and support the child?

MS GILL: I think it would make a huge difference and - - -

MR MORRISSEY: You ..... impacting from the point – we speak in institutional terms, what about from the point of view from the young person who is going through the diversion program, do you see it as potentially beneficial to them to have involvement by their own legal representation, perhaps other support services that they might have already in place?

MS GILL: I think it would definitely assist and I think it would assist them with getting more meaning and understanding of what the process of diversion is. I do find that a lot of young people don’t quite understand what they’re being sent off to do. We will assist them to get to their first diversion reassessment from court. But after that, I do worry that if the young person – you very rarely have a young person who is able to get themselves to appointments and they don’t really understand necessarily the implication of not going to those appointments, the long-term ramifications of having to come back to court and get a criminal record, etcetera - - -

MR MORRISSEY: They’re serious matters. Yes.

MS GILL: Yes. And I think if someone was more aware of them having to – having diversion obligations and be able to assist them with that, the child would get more out of diversion and they would have more likelihood of being successful.

MR MORRISSEY: Alright. I’ve got one final question concerning diversions, and perhaps I will direct this to Ms MacCarron, sometimes it’s thought that eligibility for diversion and the process of seeking eligibility for diversion can compromise the right to silence of a young person. You understand that the Act preserves the criminal procedure rights of a young person. That creates all sorts of difficulties because, and we’re aware of – there’s an impetus for defence lawyers to advise persons to make no comment, make no admission, we’re not otherwise apprised of the facts. What’s your experience and perception of that issue – of impact of diversion and the hope of diversion upon the exercise of the right to silence and do you think practices could be examined fruitfully in that respect.

MS MacCARRON: Most definitely. So my understanding of diversion is that it is to assist the young person to take responsibility for their actions. The understanding, however, of police seems to be that a child has to admit guilt - - -


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MR MORRISSEY: Of the elements of the offence.

MR MORRISSEY: - - - of all the elements and all the offences before they can be diverted. I have been on the receiving end of custody calls from the watch-house where I’ve had a police officer say to me, “We want the young person to do a record of interview, they need to admit the offending before we will divert them”. I’ve had discussions with them at that point saying that, “No, for them to be diverted they do not need to admit the entirety of the offending, they just simply need to take responsibility”, and, indeed, through the diversion program that he could be encouraged to take even more responsibility but there is not a requirement and there should not be a requirement to make admissions to the offending.

MR MORRISSEY: Could I pursue that just for one second, please. Do you find that young persons – those who guilty are guilty of an offence, that they instantly face their responsibility or can it be a process that develops over time, sometimes assisted with a bit of support such that diversion can bring.

MS MacCARRON: A lot of people are very honest and will instantly admit the offending, but there are obviously ones who do not want to, for whatever reason, and obviously the diversion program can assist them to realise what they’ve done wrong, why it is wrong and that they should be taking responsibility.

MR MORRISSEY: I think we need to turn now to some Territory Families issues, Commissioners. I’m sorry. I know there are time constraints here and I am moving, in a sense, somewhat - - -

COMMISSIONER WHITE: You are doing very briskly. One would almost say you’ve broken into a trot, Mr Morrissey.

MR MORRISSEY: Yes, a light stumble, your Honour. On Territory Families, Ms Musk, could I direct this question to you: it seems there has been an increase in, if you like, the criminalisation of the behaviour of children in the care of Territory Families who are in residential placement. So persons who are, if you like, at home, commit actions which could be quite severe or could be trivial but they may constitute domestic property damage, verbal assaults on staff, that sort of thing; what do you say about that? Have you noticed any sort of increase in the proliferation of charges - - -

MS MUSK: In my years in the Youth Court, it has been a common theme and anything from a young person kicked a door, that’s criminal damage, and it might have been a little hole in the door and rather than trying to deal with it in an alternative way or including – just give the ..... timeout, let them sit down and then talk to them, “Why did you do that?”, “You’re going to have to fix it in some way”, or, “You’re going to do some chores to somehow remedy the harm”, or allow that person to take responsibility. It’s become a really concerning practice with certain service providers of out-of-home care to call the police and report it and then, of


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course, it results in an investigation, inevitably a charge and prosecution in the courts.

It has been something that both Legal Aid and NAAJA have raised with the department – well, it’s now Territory Families, but the Department of Children and Families back in my time, and with police around the criminalisation of incidents within placement. I know in New South Wales there’s a specific protocol that has been developed and I think the judge talked about that yesterday - - -

MR MORRISSEY: Judge Johnstone yesterday - - -

MS MUSK: Yes.

MR MORRISSEY: - - - spoke about - - -

MS MUSK: Yesterday.

MR MORRISSEY: - - - that. That’s true - - -

MS MUSK: Spoke about that - - -

MR MORRISSEY: - - - and you’re familiar with that.

MS MUSK: Yes. I - - -

MR MORRISSEY: Could I ask you a question, I will just .....

COMMISSIONER WHITE: Hang on. Can I just hear the answer.

MR MORRISSEY: Of course, of course, of course.

MS MUSK: That’s what we – that’s what we – in terms of correspondence, we wrote to the department and said we’re really concerned about this criminalisation of incidents. We gave them a number of examples where this had been prosecuted through the courts – or even the youth judges at the time dealing with matters where ..... to hearing has said this is inappropriate, it shouldn’t have been in this court. There should be alternative mechanisms in place to deal with this and, effectively, the charging and criminalising young people for behavioural incidents that aren’t being appropriately managed is of great concern to the court and, of course, to our organisations.

MR MORRISSEY: I just wanted to raise a matter with Ms Lau, if I could, on this topic: it’s – the discussion we’ve had so far is one of the glorious ones that occurs between lawyers and police, in a sense, that the lawyers have a view about how things should be done, the police another view, but one component in the discussion needs to be the residential workers themselves. Did you have a view about what might be done to support residential workers here so that if a constructive protocol,


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such as the one Ms Musk referred to, were agreed to that you would get by in and understanding from the workers? You made a comment at 53 of your statement that there’s an issue of the adequate training of residential placement workers - - -

MS LAU: Yes.

MR MORRISSEY: - - - to deal with troubled youth.

MS LAU: And that’s my impression from reading on all the cases that come before the court, the examples I gave are generally disorderly within the dwelling house type offences or very minor criminal damage. The example I gave was damaging a waste paper bin to the value of $5 being a charge of criminal damage.

MR MORRISSEY: Yes.

MS LAU: And from reading the statement of witnesses, the carers, it does appear that – I don’t think, and it’s my personal opinion, that they have been trained adequately to deal with troubled youths in those placement and I think training may affect – like, may change the ultimate outcome if the carers were trained in troubled youth.

MR MORRISSEY: Did you have an impression from the statements that you looked at, that the troubles occur for a residential worker in that situation in circumstances where it’s not just the troubled kid that they’ve got to deal with at the time, but perhaps a couple of other kids who have got troubles and pressing and difficult needs of their own at the very same time?

MS LAU: Yes. I see it’s not uncommon for multiple young people to be residing at the same facility and it isn’t until when an assault occurs in that context, that either the young person is moved or the carer is moved away from that facility to go work somewhere else.

MR MORRISSEY: Ms Gill, could I turn to you with a different topic now. Here, we have issues concerning the attendance of Territory Family caseworkers at court. Now, obviously, it’s of benefit when that occurs, probably, but what issues have you observed with the attendance of Territory Family caseworkers and what comments can you make about that.

MS GILL: Historically, in the time that I’ve been at CAALAS, in the past, we’ve had trouble with workers coming to court or being aware of the relevant children actually having court.

MR MORRISSEY: Can we just – I just – perhaps, can I put something to you here and you tell me if this right.

MS GILL: Sure.


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MR MORRISSEY: There are sometimes issues of Territory Family workers simply not knowing they have to come to court; is that - - -

MS GILL: Yes. That has been historically - - -

MR MORRISSEY: Yes.

MS GILL: To be fair, it’s improved in the last few months and I think that might be a result of this - - -

MR MORRISSEY: Yes.

MS GILL: - - - Commission. There are now always Territory Families workers at court. Whether they’re the child in particulars worker - - -

MR MORRISSEY: Yes. How frequently do you get the right caseworker or the child’s caseworker?

MS GILL: I don’t think I – it varies. Often you will have someone who knows everything about the child and then another time they’re in a meeting or they’re on leave and you get someone who is really just there as a representative to sit in court.

MR MORRISSEY: Is that a function of being in Alice Springs where it’s a smaller community and there may be better shared information just because it’s a closer community?

MS GILL: Yes. Probably.

MR MORRISSEY: Yes. Could I just turn – ask Ms Lau a question about that. You’ve indicated at paragraphs 48 and 49 of your statement there that there are issues that you’ve seen when a caseworker from Territory Families attends, that they don’t actually have knowledge of this particular child or the information relevant to it. What’s the practical effect of that on a courtroom day, what happens?

MS LAU: Effectively, the matter is stood down so that the caseworker that attended court can go and make a phone call and find out some more information - - -

MR MORRISSEY: Yes.

MS LAU: - - - from the young person’s own caseworker.

MR MORRISSEY: That may be inconvenient, but if it could be resolved on the day it seems to be not a major systemic issue but would you say it’s usually resolved on the day or does it sometimes result in longer adjournments?

MS LAU: I would say fifty-fifty from experience. Sometimes they’re able to find that caseworker on short notice and actually get that caseworker to come to court


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after a lunchtime adjournment, for example, and some other times the matter just gets adjourned because they’re unable to make contact.

MR MORRISSEY: Where they’re not able to make contact, can that result in a child being remanded back into custody; is that one of the potential consequences?

MS LAU: I don’t believe so.

MR MORRISSEY: Very well. Could I turn to the issue of – sorry, one second.

COMMISSIONER WHITE: If the child was already remanded in custody but still has a caseworker, families, might the absence of that caseworker have some effect on whether the child continued to be remanded in custody while the matter is being further considered by the - - -

MS LAU: I don’t believe so, because usually the matters that the court are seeking information on are not directly relevant to the case, in any event.

COMMISSIONER WHITE: Right.

MS LAU: If the young person were to get bail on that particular day, they can certainly leave with the caseworker that attended court on that day, there’s no impairments.

COMMISSIONER WHITE: Alright. Thank you.

MR MORRISSEY: May I - - -

MS MUSK: Can I just say something else?

MR MORRISSEY: Sorry. Yes. Of course. Yes.

MR MORRISSEY: The court will not proceed without the responsible adult, it’s actually mandated in the legislation and any decision around bail and where the young person is going to go requires the responsible adult to be there. So there has been times when you’ve called a caseworker in the morning at 8 o’clock, you’ve stood down until midday, you’ve stood down until 2, you’ve stood down until the afternoon and the court makes phone calls, we make phone calls, it does happen and it has continued to happen. There’s so many issues that are wound up with this as to whether or not police are actually notifying the department when the young person is arrested for an offence in the first place, and that is probably a reason why there’s no caseworker at court on the day and - - -

MR MORRISSEY: Because the Territory Families is not itself being notified.

MS MUSK: They’re not – yes. And so there are systemic issues all the way through this.


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MR MORRISSEY: ..... notification by arresting police of various agencies is a recurring theme here; do you see any resistance by police to notifying other agencies or is it simply they’re busy and no protocol in place?

MS MUSK: Well, there’s no obligation in the legislation, there’s no protocols in place like they do in CAALAS in – sorry – in Alice Springs with CAALAS. That’s the issue. So if children are in care and they’ve been arrested, there is a requirement to notify Territory Families that their child is in custody and they need to be there.

MR MORRISSEY: Could I ask about an another – another – just on this topic, it’s a related topic, where a child is not in care does the court have the power to use section 51 to ask Territory Families to investigate that question - - -

MS MUSK: Yes.

MR MORRISSEY: - - - whether the child should come into care, and when that’s done, what happens to the child? Is that situation where they may find themselves in custody - - -

MS MUSK: Yes.

MR MORRISSEY: - - - while an investigation is occurring?

MS MUSK: So there’s many children, especially from remote communities, that get arrested and brought over to – so refused bail in a remote community and brought over to Darwin or Alice Springs and these children often do not have a responsible adult or any family in court. The young person doesn’t have a phone number, we don’t have contacts details for the young person and, of course, we can’t pursue a bail application because the magistrate will not entertain it without a responsible adult there. And, in those circumstances, we might adjourn for a day or two and try calling anyone we know to try to get in contact with family in the hopes that they can support a bail application and either appear in person at the court or, in some instances, the magistrate, by convention, are facilitating bail applications with a responsible adult on a mobile phone. Where we aren’t able to get into contact with a responsible adult within a number of days, a section 51 report is requested because the child is in need of care. They’re committing offences or alleged to have been committing offences, we’ve have got no family for them, they’re effectively homeless if we can’t secure accommodation, and there is no accommodation options in the Northern Territory. Sorry.

MR MORRISSEY: Okay. Just one second, please. Commissioners, we really are in the last few minutes now. I’ve got some mental health questions that I would like to put. We are going to fail to put all the questions that we thought we should. but I will just press ahead and do what can be done.


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COMMISSIONER WHITE: Unfortunately, for those of us who are used to sitting until we finish, Commissioner Gooda and I have a meeting at 4 o’clock with some stakeholders in the Commission, so we can’t sit on this evening.

MR MORRISSEY: I direct this question, in the first instance, to Ms Lau, these are concerning the mental health services available for young people at court. Now, in the adult mental health court, there are such practitioners available, what are you seeing in relation to the availability of mental health specialists in the youth justice space and what is the point that you wish to make about that and ..... for the youth justice space?

MS LAU: I think there needs to be more specialists in the Northern Territory that are easily assessable. The reality, currently in the Children’s Court, is child psychiatrists, whenever you need a report, are interstate practitioners, they generally do over a video link interview with the young person if they’re in custody. If the young person is in a remote community and requires treatment, then they have to fly in to Darwin and then fly out to the remote community which is very time consuming, but also it takes a long time to get the report for the purposes of court, and the matters are adjourned for a significant period awaiting for those expert reports.

MR MORRISSEY: But you would like to some parity between the way it’s dealt with in the adult justice space?

MS LAU: If there’s enough designated mental health practitioners available, I don’t see why it can’t be extended to the Youth Court.

MR MORRISSEY: What’s the effect of that – and perhaps I will direct this question to Ms Musk, what’s the effect of that gap when you’re dealing with a young person that comes into custody and presents with evident mental health issues of an acute kind?

MS MUSK: Yes. So it happened a couple of times and with one young girl, in particular, I can’t really get into a case study, can I? But, ordinarily, where we’ve got concerns, I can’t get instructions, I will ask the court to order a mental health assessment under 74 and that’s the Mental Health and Related Services Act. And on those occasions, I’ve had a young girl remanded for five days and there has been various reasons given by Don Dale or the CAMS, the Child and Adolescent Mental Health Service, as to why this young person hadn’t been seen, hadn’t been assessed and even after five days I was still concerned about that young person’s mental health. And I know that young person, I’ve dealt with her over the last 18 months on a number of occasions and she presented at least three other occasions with the same sort of symptoms and other lawyers had seen her on those occasions and she hadn’t been assessed on any of those occasions and there had even been a section 67 request that was under the Youth Justice Act for a mental health assessment then and that hadn’t been facilitated.


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When the CAMS teams finally saw her, they said that she was fine, she was fit for court and they said that – it was a drug-induced behaviour and she’s fit for court. And then we finally got the section 67 returned by a child forensic psychiatrist from New South Wales and he said that she has got the early stages of schizophrenia and ongoing - - -

MR MORRISSEY: Could you just give me a time as to how – how long did that process take?

MS MUSK: Months. And there was a complaint that we wrote at the invitation of Ms Oliver, who was a youth judge at the time, to Department of Health as to their .....

MR MORRISSEY: Is that disclosable? Are you able to provide that or .....

MS MUSK: NAAJA would have that.

MR MORRISSEY: Yes. I just – because of time factors, I just have one question I must ask now and I direct this one to Ms Gill, and it just simply concerns Throughcare, this is the last question I am able to ask, Commissioners. Ms Gill, could I just ask you this: is there Throughcare available at all in Alice Springs?

MS GILL: Not for youth, no.

MR MORRISSEY: No. You’re aware of the NAAJA program?

MS GILL: Yes.

MR MORRISSEY: What needs to be done to achieve that being put in place?

MS GILL: Well, CAALAS doesn’t have any dedicated youth officers in our sphere. We used to run an adult Throughcare program, that funding got – I believe it got defunded. So at the moment we rely on the ad hoc services of just various services in Alice Springs, but there’s nothing cohesive or united.

MR MORRISSEY: Yes.

MS GILL: Obviously CAALAS would be in a position to run a Throughcare program if we had the resources and youth officers, etcetera.

MR MORRISSEY: Thank you very much, Ms Gill. Commissioners, we must - - -

COMMISSIONER WHITE: We were just agitating whether Mr Sharp will be available tomorrow morning to finish his evidence. We simply must leave here at quarter to 4 and if he were, because I know the program has us starting at 10 which seems to be languidly late.

MR MORRISSEY: Commissioners, I believe Mr McAvoy is dealing with - - -


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COMMISSIONER WHITE: Yes. I understand that too, but it might allow you to have a few more questions - - -

MR MORRISSEY: Yes.

COMMISSIONER WHITE: - - - if you galloped to the finishing line.

MR MORRISSEY: Yes. Yes. Thank you. Well, perhaps while Mr McAvoy is making an inquiry, perhaps I could ask – take the current gap anyway and ask a couple of questions – yes, thanks. Could I just ask the – one of you raised, and I just can’t recall which one it was now, who raised the issue of the value of having a juvenile justice officer placed at the Youth Justice Court. Ms Musk, I think that might have been you who raised that issue. Could you just speak to that, please, what’s – what do you – what does a juvenile justice officer connote? What is the role of a juvenile justice officer?

MS MUSK: So I’ve worked in Western Australia where there was a juvenile justice officer that used to sit between the prosecutor and the defence lawyer and I think, from my experience, they were people who had certain qualifications – so around psychology, or sociology, or ..... social work. They were able to obtain a lot of information about the young person at – around supports or services which were available in the community. And, especially when the young person could be looking at a bond, provide – and if it’s a matter that could be dealt with on the day, “These are options available that the court could consider and these are the conditions that your Honour might want to consider as part of an order, whether or not it’s a good behaviour bond, attendance at this counselling session, here’s the contact details for that.” So they were, in a sense - - -

COMMISSIONER WHITE: They’re sort of a resource?

MS MUSK: A resource. Yes. Providing - - -

COMMISSIONER WHITE: Would that person also act as a bit of coordinator with the other - - -

MS MUSK: Yes.

COMMISSIONER WHITE: - - - people, like education for example, and health, who might also have an interest in the case?

MS MUSK: Yes – yes. And so in all other jurisdictions there’s the juvenile justice officers that are part of the court system.

MR MORRISSEY: The one that you’re referring to – are you – is there a particular model that you’re familiar with that you like, that you think is a – would be a useful model.


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MS MUSK: I’ve got a number of suggestions as to what could be potentially brought into the Northern Territory, and one thing in particular – and this is not the juvenile justice officer, but this is like a youth support service and I know, I think it’s actually in New South Wales. I don’t know if the judge talked about it yesterday, but as soon as a young person comes to court, rather than simply the lawyer or the legal team trying to not only deal with their criminal matter, provide advice and representation, but there’s a youth justice service which is available at the court to meet the young person, provide them with information about the process, to link them to any services, especially if they’ve got unstable living arrangements.

So it could be accommodation and accommodation support service. If there are issues around their current bail conditions, to be able to navigate their way through that. And they also provide advice to the parent and family around what the court process is and support programs that are available. So that’s something which I was keen to see, because at the moment NAAJA and legal aid have to do this work. If a young person is out of school, ring up the school; if the young person has got issues with drug and alcohol, ring up Bush Mob, make a referral on behalf of the young person. I’m talking hours filling out these documents, all kinds of .....

MR MORRISSEY: Can I ask – just an application of that role, we have heard evidence of an education justice officer in Victoria and other similar initiatives were discussed by Judge Johnstone. Is there, in the Northern Territory currently, an education – the equivalent of an education justice officer who is performing that type of role?

MS MUSK: Yes.

MR MORRISSEY: And, if there is, what you’re proposing by way of a juvenile justice officer or a youth justice officer, would that be a useful coordinating function to allow education, mental health resources and so on .....

MS MUSK: And I think – I think, in the Northern Territory, we need to figure out what we need and not simply transplant different programs from other jurisdictions as though that is the panacea for the issues here. I did look at Victoria’s – the education justice initiative, and I understand there’s an evaluation report about the success of the program, and that has been going for at least a year. It might be two years. But that – what is needed here in the Northern Territory, especially in Darwin and Alice Springs where the majority of our clients have been out of school and not engaged in anything productive for a length of time.

And the majority of children I dealt with, if not all of them, were not in school by the time they were making their way through the court system. And if there was an education/justice initiative where education staff were based at the court house to meet the child and their family, to understand where they’ve disengaged, what level they’re at, and that’s – you need trained people, educators who are able to make that assessment with information from the Department of Education, or whatever school – community school, if need be, and then map out what is going to fit the needs of


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that young person. And it might not be mainstream schooling, it could be ..... education plan through the local engagement centre. It could be a training program. It could be ..... catering, and the training program that they’ve got there. That just doesn’t exist in the Northern Territory.

MR MORRISSEY: Thank you very much - - -

COMMISSIONER WHITE: Perhaps you could get some - - -

MR MORRISSEY: I have an indication here, and it’s simply what I’ve been indicated by note, that it would be proposed to start Mr Sharp at 3.25 pm today. So

COMMISSIONER WHITE: That’s very precise. Does that – that suggests, then, Mr Sharp is available to continue tomorrow morning? Is that the position, Mr McAvoy?

MR McAVOY: If I may, Commissioners, Mr Sharp and his counsel have indicated their availability to start at 9 am tomorrow morning. I don’t think that inconveniences any of the other parties, and if we can get a start this afternoon that would be good, but - - -

COMMISSIONER WHITE: Well, we would very much like to do that, yes, thank you. Thanks Mr McAvoy. Do you need to take that much of Mr McAvoy’s time, Mr Morrissey? Because you have been going so fast you have probably just about covered the field, have you?

MR MORRISSEY: By no means have I covered the field, but we’re also – I’ve been vicious in imposing time limits on others from time to time, and I feel terrible not to do the same for myself here. But there are a couple of other matters, and I wonder if I could have indulgence to go to 3.15.

COMMISSIONER WHITE: By all means.

MR MORRISSEY: And just deal with a couple more matters. And I appreciate the patience of those whose time impinged upon. I have got a question of Ms MacCarron concerning criminal procedure here, and the issues of disclosure of the evidence. Now, in the situation where a young person has determined to plead not guilty, or alternatively has not yet determined to plead guilty, can you just tell the Commissioners: what’s the source of law that governs the disclosure of statements and a full brief? In other words, is there a source of law or is there merely a convention by reference to adult law, and are there delay – have things changed in that respect in recent times, and what effect has that had on delays before matters are determined?

MS MacCARRON: Well, my understanding is that there is no legislative source. It is simply a convention. There is also no practice direction that I’m aware of. The Youth Court, to my knowledge, is following loosely the procedures in the local


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court, which is that there should be a preliminary brief disclosed at first instance. Often, however, that is inadequate or not there. In which case, once a child indicates that they want to contest the matter or indeed are not sure if they want to admit the matter, we will list the matter for what’s called a CMI, a case management inquiry at that point.

MR MORRISSEY: And what sort of time – just – I’m interrupting here, but can you just explain what sort of time delays does that engender before you have a full brief?

MS MacCARRON: A – well, a brief service order will be made. That will normally be in a couple of weeks time. It has been, in my observation, the practice of the sitting magistrate to say to the prosecution, “How long do you need to get your brief together?” They will, depending on the matter say, “Well, I can see that there’s six police officers, there’s three civilian witnesses, there’s CCTV, and there’s forensic, that will probably take – “ and they will give an estimate of two weeks, three weeks, however it might be, and that will be – then a brief service order will be made at that point. Normally, if a matter is being contested right through to hearing, I would imagine it would be about eight weeks until a hearing date could be obtained.

MR MORRISSEY: Experience elsewhere suggests that sometimes disclosure orders of that nature will be a good cure to any overcharging, whether that’s done innocently or not. In other words, the requirement to furnish full briefs of evidence on a hundred or more charges will soon result in a more realistic number of charges proceeding.

MS MacCARRON: Indeed. And perhaps if matters were commenced by way of summons, once the evidence has been obtained, then perhaps we wouldn’t have this delay. But however, as we’ve discussed previously, matters are often commenced by way of arrest, in which case the young person is brought to court and these decisions need to be made on limited evidence that is just not there.

MR MORRISSEY: Can I direct a question to Ms Gill here. I just have a question concerning the privacy and the respect for anonymity of young persons. In the Northern Territory there does seem to be a practice of identification of young persons. What do you say about that? Do you think there should be augmented privacy? What form should that take in terms of the young person’s identity and disclosure?

MS GILL: Children who are in care – obviously their identity is not disclosed, and the court will be closed for those matters. My view is that, obviously, anything in the Youth Court should be not disclosed. A practice in South Australia, that was the practice then - - -

MR MORRISSEY: Were the closed courts in South Australia or was there simply a non-publication order?


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MS GILL: Casting my mind back, I can’t remember. I just know that it was initials, and the other issue we face in Alice Springs – and this is something that is peculiar to Alice Springs – is we don’t have a designated Youth Court as such. The Youth Court sits on Mondays and Fridays. Adult matters will be interspersed, so – and we don’t have a specialist youth judge. The judges take turns. The Local Court Judges take turns. So that causes issues as well because you will often have people sitting in court, family waiting for an adult sentence to support their adult person, but they will have to sit through Youth justice matters and so will hear those matters that are conducted in open Youth Justice Court. So even though the list isn’t published, people can still go in and sit in court and hear, which for a young person, is, can be very devastating.

MR MORRISSEY: Commissioners, we have reached 3.15. I think it now falls to us to cease, but may I suggest though that we thank all panellists for the breakneck speed at which we have proceeded and then allow them to be released.

COMMISSIONER WHITE: Yes, thank you. Mr Lawrence.

MR LAWRENCE: I would like to raise an issue my client ED, concerning the issue of asking some questions of this panel in order to elicit and adduce evidence which I say is relevant.

COMMISSIONER WHITE: I know you have made this application, Mr Lawrence, twice and it has been refused on each occasion. It’s not the appropriate venue for ventilating the matters that you want to with one particular panel member. It has not been the purpose of this hearing to deal with things of that kind.

MR LAWRENCE: Well, with respect, I – obviously, I will follow the dictates of the Commission, but the reason I raise it is that we – look, I’m representing AD as you know.

COMMISSIONER WHITE: Yes, I know.

MR LAWRENCE: He is a 14 year old.

COMMISSIONER WHITE: Mr Lawrence, I have read the submission that you made to the solicitors, yes.

MR LAWRENCE: Yes. And very much at the kernel of the disaster that this Royal Commission has discovered, black hole, if you like, was the period in which he spent in the BMU. And we have elicited and adduced a lot of relevant evidence as to how on earth that occurred, including evidence from the Minister himself, who has given evidence that he knew about the conditions in the BMU. We have heard from Mr Goldflam, on behalf of the criminal lawyers, who said he also knew what were the conditions there. The principal legal officer of the NAAJA service was actually taken through a tour halfway through his stint.


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COMMISSIONER WHITE: Mr Lawrence, we all know this and you know we’re tight for time, so - - -

MR LAWRENCE: I am trying to make it relevant, if not persuasive, and we are - - -

MR MORRISSEY: ..... may I interrupt for a moment.

MR LAWRENCE: Well, I - - -

MR MORRISSEY: It is not appropriate for this to be done at this point. My submission is - - -

COMMISSIONER WHITE: No, I understand the position, Mr Morrissey. Just – well, I will just ask Mr Lawrence to - - -

MR LAWRENCE: I will – I’ve tried - - -

COMMISSIONER WHITE: I will allow him to finish but - - -

MR LAWRENCE: Thank you.

COMMISSIONER WHITE: - - - at some shortened space than he had in mind.

MR LAWRENCE: Thank you. Many people have given evidence about how – he gave evidence about his conditions.

COMMISSIONER WHITE: Yes, Mr Lawrence. All of that is – many, many - - -

MR LAWRENCE: The guards - - -

COMMISSIONER WHITE: - - - people knew how dreadful it was.

MR LAWRENCE: That’s right.

COMMISSIONER WHITE: Yes. And?

MR LAWRENCE: Now we’re in a position where he, and the other boys’ direct legal representatives at the time, are in a position to inform this board, who surely wants to know what they knew about where he was and what the conditions were. Everybody else has given that evidence and it would be artificial, with the greatest of respect, not to avail ourselves of the soldiers that were representing those boys at that time as to what they knew and that has to be relevant. And they’re here now. That’s all I wish to ask of them, that aspect.

COMMISSIONER WHITE: Thank you, Mr Lawrence. Now, Mr Morrissey, you wanted to - - -


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MR MORRISSEY: I oppose leave being granted, Commissioners. This is a panel designed to deal with specific issues. There are a number of other reasons for opposing but that should suffice: this is a learned panel. It is not appropriate to – the people appearing here have appeared on that basis and not with respect to their individual activities. They shouldn’t be questioned about it. It’s inappropriate to raise it here.

COMMISSIONER WHITE: It – that has been the view of the Commission, Mr Lawrence, that the purpose for the panel was systemic and not individual, and that it would not be appropriate to cross-examine them further in relation to particular cases. The subject matter that you wish to pursue perhaps needs a different forum, but certainly it needs a different occasion to this one. So the application to cross-examine some of these panel members is refused.

MR LAWRENCE: If it please the Court.

COMMISSIONER WHITE: Thank you.

DR DWYER: Your Honour, I just rise to ask if a non-publication order might be made over the application from the point of the principal officer of the NAAJA service was taken through ..... starting with that sentence through to that aspect. That was not the forum to raise that issue. I’m not confident it won’t be taken out of context by newspapers covering it. In fact, the principal officer of NAAJA did answer questions about that and, in my respectful submission, that application was inappropriate and should be struck from the record, at least in terms of public access for it.

COMMISSIONER WHITE: It’s a bit of a tricky one, Dr Dwyer, that one, about striking the application from the record.

DR DWYER: Just a non-publication order over it, perhaps, your Honour. It is – my concern is it being taken out of context by newspapers covering the Royal Commission.

COMMISSIONER WHITE: It’s a risk that we take. It’s – the certainty that will excite the media’s interest if there’s a non-publication order will the application probably is counterproductive because we have seen leaks, hand over fist, in relation to matters in this Commission and there are a lot of people here, a lot of – a lot of opportunity to speak to somebody. I think, in those circumstances, a responsible journalist would not make anything of this application.

DR DWYER: May it please the Commission.

COMMISSIONER WHITE: Thank you, Dr Dwyer. Thank you, panel members. We are terribly sorry that you couldn’t have had a whole day to talk about the many issues. As you know, they’ve come up in different circumstances with different witnesses. It’s very good to hear your voices on these systemic matters. We are


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sorry it was a bit of a rush through because there’s such a lot of things to consider, but it has been very useful and, of course, we’ve got your larger statements which canvass these things in considerable detail and they’ve been read by us, of course, with great interest. So thank you.

MS SWIFT: On that note, Commissioner, I’m .....

COMMISSIONER WHITE: I’m sorry. I didn’t ask you whether you needed to do anything. Yes, Ms Swift.

MS SWIFT: Sorry. Yes. I did raise some questions through ..... through counselling assisting. Just in relation to ..... because we are short of time today, if there are any other issues that you would be assisted by, could we seek leave to file a further statement.

COMMISSIONER WHITE: You don’t even need leave. You can certainly notify the solicitors for the Commission. Any panel members who, having heard other people and thought about things more, wish to put any further matters in, certainly you are invited to do so. Yes. Thank you, Ms - - -

MS GRAHAM: CAALAS is grateful for that indication also, because it has been a very rushed process this afternoon.

COMMISSIONER WHITE: Yes. Although, again, we are grateful to the care that has gone into the statements. Yes, thank you, Ms Graham.

MR MORRISSEY: May the panel be excused at last.

COMMISSIONER WHITE: Yes. So 25 past after all.

<THE WITNESSES WITHDREW [3.24 pm]

COMMISSIONER WHITE: Call Mr Sharp?

MR McAVOY: Yes, Commissioners. The next witness is Mr Jared Sharp. He is in the hearing room.

COMMISSIONER WHITE: He is.

MR McAVOY: If he could move to the witness box.

DR HANSCOMBE: May it please the Commission, my name is Hanscombe. I was granted leave on 26 April to represent Mr Sharp.

COMMISSIONER WHITE: Yes. Thank you, Ms Hanscombe.


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<JARED NATHANIEL SHARP, AFFIRMED [3.25 pm]

COMMISSIONER WHITE: Thank you. Would you kindly be seated.

<EXAMINATION-IN-CHIEF BY MR McAVOY [3.25 pm]

MR McAVOY: Mr Sharp, could you tell the Commissioners your full name please?---Jared Nathaniel Sharp.

And your current occupation?---Currently the general manager for the Northern Territory of Jesuit Social Services.

And you’ve prepared a statement for this Royal Commission dated 24 April 2017?---That’s correct.

If you look on the screen in front of you, you can see a document. Do you recognise that document?---Yes, I do.

That statement runs to 78 pages plus annexures, it’s some – recognise that statement as your statement?---Yes, I do.

Are the contents true and correct?---They are.

Do you wish to make any changes to that statement?---No.

Commissioners, I tender the statement of Jared Sharp dated 24 April 2017.

COMMISSIONER WHITE: Yes. Thank you, Mr McAvoy. That’s exhibit 355.

EXHIBIT #355 STATEMENT OF JARED SHARP DATED 24/04/2017

MR McAVOY: Thank you.

Mr Sharp, I just want to take you initially to your curriculum vitae, which is annexure 1 to your statement. Now, you have worked with the Northern Australian Aboriginal Justice Agency in the past from May 2009 on a full-time basis through to 2012?---That’s correct.

And in 2012, it’s correct you undertook a Churchill Study Fellowship?---That’s right.

And that report is annexed at annexure 2 to your statement?---Yes.

.ROYAL COMMISSION 9.5.17 P-3640 J.N. SHARP XN©Commonwealth of Australia MR McAVOY

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Now, in that study tour you visited Canada, the United States, and New Zealand?---Yes.

And the purpose was to investigate strategies for increasing cultural integrity of court processes for Aboriginal young people?---That’s right. I was awarded the Justice James Muirhead Fellowship, and that was in honour of the late James Muirhead J, who was a passionate advocate for improving the Northern Territory justice system because of the systemic issues that Aboriginals face in achieving justice.

And the study tour that you took, what period was that over?---It was approximately six weeks and early 2013.

And you attended in those jurisdictions and observed court practices in those jurisdictions?---I did.

Can you just briefly explain how – what you saw in those jurisdictions, which are, if you heard the evidence of Professor Baldry yesterday, settler jurisdictions. Can you just explain how that has influenced your work following that point in time?---I think I could only describe it as life changing opportunity that I had. I was able to observe a number of initiatives in different jurisdictions, that are similar to Australia in a lot of ways, in the way particularly indigenous people have been treated by the dominant culture and the mainstream justice system, and I was able to see different initiatives that have been developed in jurisdictions like Canada and New Zealand to try and ameliorate some of the detrimental impacts of the justice system and also some of the positives. Some of the positive ways in which those justice systems have tried to harness culture as a way of getting people on a path towards their rehabilitation and, unless you do that, you are doomed to failure in a lot of cases for Aboriginal people.

And so that informs the work you’re doing currently?---That’s right. I mean, I was able to see the Gladue Court in Canada, in Toronto, where there are specialist Gladue reports that are prepared, similar to a pre-sentence report but written by an Aboriginal person that documents the history, the trauma that that person, their family, has experienced. And so that means that a judge who comes to the task of sentencing that individual isn’t just presumed to know all of that information, but is presented with the full picture about that person, their family, experiences similar to residential schools in Canada or Stolen Generation issues in Australia that then mean the judge can make an informed decision as far as sentencing goes.

And that wasn’t something you had seen occurring in the Northern Territory?---No. No nothing like that exists in the Northern Territory.

Existed then or exists now?---Or – or now. One of the most shameful factors I think of the Northern Territory justice system at the moment is that we have no Aboriginal justice programs at all, and I think we are unique amongst Australian jurisdictions in having that disgraceful honour.


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Mr Sharp, you’ve provided a very detailed statement covering many issues. Today, I want to focus on your present employment, and the youth justice group conferencing undertaken by the Jesuit Social Services and perhaps the future that that might take. Now, Jesuit Social Services are funded at the moment; is that correct?---That’s correct.

.....?---It has been announced, but we haven’t formally received the funding, but it has been announced.

To undertake youth justice group conferencing?---That’s correct.

Pursuant to section 84 of the Youth Justice Act?---Yes.

Can you explain to the Commissioners what form of conferencing that is?---So that occurs at a point of time when a young person has appeared in court, they’ve entered a plea of guilty and, prior to being sentenced, the Youth Court Judge will adjourn the sentencing process for a pre-sentence conference to take place.

And to facility the Jesuit Social Services being able to undertake that service, there was a practice direction made last year?---It was actually prior to our service commencing. So the practice direction was issued at the beginning of 2016. There had been some conference – some presentence conferences convened, prior to our service starting, by the Community Justice Centre. So the practice direction was written at that time, when the Community Justice Centre was really the sole provider of those conferences.

And that practice direction is practice direction 2 of 2016 and it provides, at 2.3, that the court may also from time to time appoint an alternative convener for a presentence conference and it’s under that provision that Jesuit Social Services have been the subject of referrals?---That’s right. And I think this is one of those examples of a provision in the Youth Justice Act that has never been funded until this time. I think our service is now the first service ever in the Northern Territory, and I think it’s the first service ever to receive funding specifically to run conferences pursuant to section 84.

So prior to the change in the practice direction, there was a provision for the Community Justice Centre to undertake section 84 conferences?---Yes. They’ve been running them for a number of years, but without resources to do that. So there’s a number of people at the Community Justice Centre who have worked really hard to make that possible, but without having the resources to do with it the regularity they should.

Are you able to say what terms of numbers they were able to attend to for conferencing?---I’m not. I know they have not been convened regularly, and I think that’s because they simply didn’t have the capacity, and one of the things that services in the Northern Territory youth justice system need is the certainty that this option is available, and that’s something we’ve quickly discovered that if you


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actually say to the court, to the legal services, “We are here, we have this service,” if you offer that it will be utilised because the court is crying out for options like this.

So the – are you familiar with the form of the Community Justice Centre conferencing model?---I haven’t ever been part in one of those – myself in one of those conferences, but I’ve been told about the process.

And are you able to indicate whether you see the conference methodology undertaken by Jesuit Social Services as something different to that which was previously offered by – well, and currently offered by Community Justice Centres?---Look, I think there is a difference, and I base that on my experience as a sessional mediator in the past with the Community Justice Centre. So I’ve mediated matters through the Community Justice Centre, and I know – you know, their funding is very limited. When they do fund someone to do a mediation, it’s really just for that period of the mediation. So a three-hour mediation. It doesn’t include the preparation time. And I think our model is quite different because, whereas you might have a conference for that two to three hours, the real bulk of the work is 30 hours of preparation, and I just – I don’t think, and I might be wrong, but I don’t think under the Community Justice Centre model there is simply that capacity to do that depth of work prior to a conference.

I just want to ask you a few questions about the funding that Jesuit Social Services came to receive, or is about to receive. You cover that at paragraphs 114 to 121 of your statement. At paragraph 115, you indicate that you contacted the CEO of Territory Families, Ken Davies and the deputy CEO Jeanette Kerr to explain what the service was and your willingness, I expect, to be able to assist in the Northern Territory and, as a result of that, further discussions occurred and an offer was made to Jesuit Social Services to perform some services?---That’s right. I think, in its context, Jesuit Social Services had made the decision to commence piloting youth justice group conferencing in the Northern Territory irrespective and prior to that funding announcement by Territory Families. It would have been with a very small capacity, but Jesuit Social Services had identified the huge need in the Northern Territory for a program similar to the youth justice group conferencing program that it runs in Victoria and has done since 2004, so it had made the decision to divert some of its resources and also use philanthropic money that it was lucky enough to get to commence this program in the territory. So we were speaking with Territory Families about that and wanting to, I guess, partner with them to see this as a really comprehensive and more readily available option for the court.

The funding at the moment that has been agreed to in principle with Territory Families is in relation to section 84 conferencing only?---Primarily. I think there’s also capacity for other court referred conferences from time to time at the discretion of the Youth Court.

Is that a matter that’s part of the contractual negotiations?---Not really. I think – for example, we’ve currently got one referral that’s not a section 84 matter. That’s a section 64 matter, and that’s a matter where the Police Youth Diversion Unit formed


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the view that diversion was no longer going to be the right option for this young person, but they recommended to the court that Jesuit Social Services undertake a group conference with that young person and the court then made an order for a section 64 conference to be convened by our service.

And that’s section 64 of the Youth Justice Act?---That’s correct.

And that service that’s being provided in relation to the section 64 is one is covered by the existing funding arrangements or is it something Jesuit Social Services picked up?---I think it’s covered by our existing funding arrangement with Territory Families, but again this is in the context of a contract that’s yet to be executed. But my recollection is that it covers court referred conferences. And, in my view, the capacity to do these section 64 conferences is unbelievably important in the Northern Territory, where so many Aboriginal kids get maybe one or two chances at diversion, and then they face a future of formal criminal charges. And if there is another alternative then the court can then, in appropriate cases, utilise that. In this particular example, while we’re here today, that conference is being convened for this young person who would have otherwise been exited, for want of a better word, from diversion and faced formal charges.

So for the benefit of the Commissioners, section 64 of the Youth Justice Act provides that where a person has been – the police have determined that a person is unsuitable for further diversion, that the court can then make an order.

COMMISSIONER WHITE: It’s on the screen, section 64, and the panel talked about it too, a little bit earlier, Mr - - -

MR McAVOY: I’m sorry. I missed that part, Commissioners. Thank you.

Is the service that the Jesuit Social Services is currently providing – and I understand you’re currently in operation – is it something that is done in partnership with any Aboriginal organisations?---Yes, that’s correct. We are deliberately – in the Northern Territory context, we are we are very conscious of the fact that our Victorian program is obviously in a markedly different context than the Northern Territory. So, for example, all the referrals for our youth justice conferences so far have been Aboriginal young people, so it became imperative for us to partner with Aboriginal community controlled organisations. So we have done a number of presentations to Aboriginal community controlled organisations like NAAJA, Danila Dilba. We have a partnership Danila Dilba where, in the convening of a conference, we invite Danila Dilba youth workers to come and be part of the conference to provide case management support to that young person, and it has been really successful so far.

I will come back to the role of community leaders and family in the process. You’ve trained in a particular form of conferencing that is being used now by Jesuit Social Services?---Yes, that’s right. I’ve personally participated in restorative practice facilitation training.


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And where did you undertake that training?---That was in Queensland.

And the training was for – how long did it take?---It was three day training.

And is there the capacity for people to be trained in the Northern Territory in that form of conferencing?---Absolutely. And I think – what I’m hoping, and I think a lot of those who work in this sector do hope, is that restorative justice becomes a mainstay of your youth justice and child protection systems, and that it becomes a discrete specialisation. And obviously, what you need, if you’re going to have a discrete specialisation is a real professional, highly professionalised workforce, who is fully trained and has – you know, professional development opportunities. So for our organisation, our team in Melbourne are all able to access regular professional development opportunities that’s run through our funding body, the Department of Human Services in Victoria, and also professional development through internal mechanisms and peer to peer mentoring opportunities as well.

So I understand, from looking at paragraphs 132 and 133 that – 132 in particular that there has been a referral from the Supreme Court for some very serious matters?---That’s correct.

And that’s the first of those referrals from the Supreme Court?---That’s correct.

Is that an important development in the operation of the service?---I think it is. I think – what – what – what my analysis of the evidence base around restorative justice conferencing is, is that it’s almost the more serious the offending, the more effective the process will be. And often that’s because of the harm that is more real, for want of a better word, that the victim and the community have suffered. It becomes far more important to repair the relationships between the parties to make sure that the victim can move forward with their life, and the young person can understand the devastation that they’ve caused to the victim or victims.

Okay. Now, since you’ve started receiving referrals – when was the first received?---The first referral was, I think 31 January 2017.

And how many has the Jesuit Social Services received since then?---As of today, it’s 17.

So it’s – there’s a number per week that you’re receiving?---That’s right. It’s fluctuated a little bit, but it has been a pretty consistent pattern of several per week.

COMMISSIONER WHITE: And what’s your – what’s your strength of your establishment in the territory?---As in our capacity within - - -

Is it you or are there others?---I now have a convenor who we have been able to employ. and the funding that Territory Families have almost provided to us will mean we will shortly be able to advertise for two more workers. One will be a coordinator and then we will have two specialist convenors, so that will be for the


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Darwin/Palmerston region to manage the case load and future case load that we will have.

We did have an opportunity to have a look at the restorative justice conferencing in the ACT, which – you know, is a comparable size, even if it’s nothing like it in dimensions, and they certainly had a reasonably big establishment to undertake their work, but that was certainly their total approach to managing most of the youth justice files?---Yes. And I think Commissioner, it’s – the nature of this work is it is so intensive that if you compromise on your capacity, and take on too many per worker, then the quality will suffer. So we’re certainly very mindful of that and I’ve been really lucky to benefit from the coordinator of our Victorian program who has come up regularly to assist us with managing the numbers that we’ve had so far. So – but it’s – we’re certainly very cognisant of that.

And what about the space in which to conduct the conferencing? That’s still floating a bit?---We have – we have office space, and then when it comes to convening the actual conference we’re guided in large part by the wishes of the victim as to the most appropriate place for them to hold the conference. So we’ve had them in a number of locations in Palmerston in Darwin. Some of the most notable, I think – one was a local Member of Parliament’s meeting room, which was very close to the victim and the victim who attended, I think, really benefitted from being in that location where they felt very comfortable and safe. We’ve had another one, and in fact the one that’s happening today is also at the Healing Room of the Danila Dilba Malak office – or Clinic, I should say, which is a fantastic room because it was established as a space for stolen generations survivors to come together on a regular basis, and it just has a lovely feel of healing and to really make sure that particularly the young person feels supported. So we’ve had it in different venues which is always – it will change according to the needs of the different parties who are participating.

COMMISSIONER GOODA: What – Mr Sharp, the profile of the staffing, for instance. How do you intend to make sure it’s culturally secure for Aboriginal people? The staffing issues, maybe as a starting point?---I mean, so far, we’ve employed one person who is very experienced working in the youth sector, he’s a social worker with 20 years’ experience.

Aboriginal?---Not Aboriginal. So it is front of mind for us. We have a fantastic partnership with Danila Dilba. We have also secured a small amount of funding to run restorative practice training in Darwin, Alice Springs, and 10 remote communities through the Department of Health, and what we are hoping through that, it will be an introduction to restorative practices and what we’re hoping is that was we can get the word out and get Aboriginal people involved in the process that we will then be in a position to then employ those very same people.

Because as we go through this, we’re looking – you know, workforce is a real issue across the whole range of the issues this Royal Commission is looking at?---Exactly right. And I think just from our experience so far, when I think of the conferences


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that have been most powerful, there was one that we did in Katherine about two weeks ago, and we had a very highly respected elder from Katherine who co-convened the conference with us, and when I think of the dynamic in that room: we had police there, we had the young person’s family there, other non-Aboriginal people there, but the real power was the victim was a senior Aboriginal man from a local organisation, and this particular elder – who was phenomenal who knew this young person, and the family, and where he was from, and how important culture was for him. So she could communicate in a way that others simply couldn’t as the victim is in the same category. So I think, for us, it’s absolutely top of the list, is to be making sure that we have Aboriginal people running these conferences.

MR McAVOY: Commissioners, I note the time.

COMMISSIONER WHITE: Yes, we are running a bit over.

MR McAVOY: Yes. There is – there are - - -

COMMISSIONER WHITE: 9 o’clock tomorrow.

MR McAVOY: Yes. 9.15.

COMMISSIONER WHITE: 9.15.

MR McAVOY: 9.15 is suitable.

COMMISSIONER WHITE: Will that be sufficient time?

MR McAVOY: I think I’ve probably got – yes, I – 9.15 will be sufficient.

COMMISSIONER WHITE: 9.15. Alright. Thank you. I’m sorry to cut you short, Mr Sharp. Thank you for staying on?---No problem.

Thank you.


MATTER ADJOURNED at 3.50 pm UNTIL WEDNESDAY, 10 MAY 2017


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Index of Witness Events

KIRSTEN ENGELS, SWORN P-3555EXAMINATION-IN-CHIEF BY MR MORRISSEY P-3555EXAMINATION BY MR JACOBI P-3586

THE WITNESS WITHDREW P-3588

KIERAN MICHAEL WELLS, SWORN P-3589EXAMINATION-IN-CHIEF BY MR MORRISSEY P-3589


SANDY LAU, SWORN P-3598NICOLA MacCARRON, SWORN P-3598SHAHLEENA MUSK, SWORN P-3598ANNA GILL, AFFIRMED P-3598THE WITNESSES WITHDREW P-3639

JARED NATHANIEL SHARP, AFFIRMED P-3640EXAMINATION-IN-CHIEF BY MR McAVOY P-3640


Index of Exhibits and MFIs

EXHIBIT #344 RESPONSIVE STATEMENT OF LUIS LIMA DATED 22/03/2017

P-3556

EXHIBIT #345 RESPONSIVE STATEMENT OF JAMIE CLEE DATED 15/03/2017

P-3556

EXHIBIT #346 RESPONSIVE STATEMENT OF TREVOR HANSEN DATED 13/03/2017

P-3556

EXHIBIT #347 STATEMENT OF KIRSTEN ENGELS DATED 22/03/2017

P-3556

EXHIBIT #348 REVIEW DOCUMENT P-3556

EXHIBIT #349 NORTHERN TERRITORY POLICE YOUTH DETENTION TASKFORCE REVIEW OF NORTHERN TERRITORY POLICE INVOLVEMENTS IN YOUTH DETENTION CENTRES 2006 THROUGH 2016 REPORT

P-3590


P-3599


P-3599


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EXHIBIT #352 STATEMENT OF NICOLA MacCARRON DATED 28/04/2017

P-3600


EXHIBIT #353 STATEMENT OF MS MUSK DATED 11/04/2017 P-3601

EXHIBIT #354 STATEMENT OF MS GILL DATED 02/05/2017 P-3602

EXHIBIT #355 STATEMENT OF JARED NATHANIEL SHARP DATED 24/04/2017

P-3640


Documents

Transcript 9 May 2017 Web view.ROYAL COMMISSION 9.5.17P-3568K. ENGELS XN ©Commonwealth of AustraliaMR MORRISSEY.ROYAL COMMISSION 9.5.17P-3589K.M. WELLS XN ©Commonwealth of AustraliaMR