transcript 19 april 2017 web view.royal commission 19.4.17p-2480b. kelleher xxn ©commonwealth...

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TRANSCRIPT OF PROCEEDINGS

O/N H-772901

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

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

DARWIN

9.12 AM, WEDNESDAY, 19 APRIL 2017

Continued from 31.3.17

DAY 27

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND and MR D. INDEVAR for Dylan VollerMR P. BOULTEN SC appears with DR P. DWYER for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMS L. JARDINE appears for witness Conan ZamoloMR P. TIWANA appears for Benjamin KelleherMR A. LEWIN appears for Barrie CleeMS K. KATHRAKIS appears for Lisa Coon

.ROYAL COMMISSION 19.4.17 P-2430©Commonwealth of Australia

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COMMISSIONER WHITE: Mr Callaghan.

MR CALLAGHAN: Commissioners, in his statement of 25 November 2016, Mr Dylan Voller provided evidence that reflected adversely on a number of individuals. Those people have by now had the opportunity to consider and respond to that evidence and numerous statements of that nature have been provided and will be tendered. Mr Voller himself has provided an additional statement. This process has been ongoing even as some of the named individuals have given evidence relating to other matters, but we are now in a position where the oral evidence relating to Mr Voller’s situation can be finalised, and so to that end between now and Friday we propose to call, or in most cases recall, witnesses who have provided responsive statements and, indeed, tomorrow afternoon we propose to recall Mr Voller himself.

I’ve been told there are one or two preliminary matters that might have to be dealt with, but none of those affect the evidence of the first witness that we propose to call, and that is Mr Conan Zamolo, who does have, as we understand it, a need to finalise his evidence this morning.

COMMISSIONER WHITE: So you propose that before we deal with the preliminary matters, we will actually finish his evidence, if that’s the plan, and let him go?

MR CALLAGHAN: Yes. I submit that there’s nothing in the way of calling him now and finalising his evidence and .....

COMMISSIONER WHITE: I’m sure that he would be pleased to be finished with this Commission, if he possibly could.

MR CALLAGHAN: Indeed. So if it please - - -

COMMISSIONER WHITE: Could I just mention then just to all counsel who will be coming to the podium, just to assist our transcriber and voice identification, would you be so kind as to make sure that you mention your name and for whom you are appearing, just so that it’s fresh in her mind. She has no doubt listened to other voices in the interim. Thank you.

MR CALLAGHAN: I call Conan Zamolo.

<CONAN ZAMOLO, RECALLED AND RESWORN [9.15 am]

<FURTHER EXAMINATION-IN-CHIEF BY MR CALLAGHAN

COMMISSIONER WHITE: Thanks, Mr Zamolo. Please be seated.

.ROYAL COMMISSION 19.4.17 P-2431 C. ZAMOLO FXN©Commonwealth of Australia MR CALLAGHAN

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MR CALLAGHAN: For the record, once again, could you tell the Commission your full name, please?---Conan Lloyd Zamolo.

Mr Zamolo, of course you’ve given evidence here previously, but you’ve prepared two further statements in response to other evidence that’s been given; is that right?---Yep.

Okay. Can I show you first a statement dated 16 March 2017 with an annexure, CZ1. That’s the first of the statements in question; is that correct?---Yes.

I tender that statement.

COMMISSIONER WHITE: Thank you. Exhibit 286. Thank you.

EXHIBIT #286 STATEMENT OF CONAN ZAMOLO DATED 16/03/2017

MR CALLAGHAN: And there’s a further statement dated 16 March 2017 but, in fact, signed on the 23rd. Can we see that one on the screen, please. Can we just see a little more of the contents so that Mr Zamolo can identify it. Well, that’s actually dated 16 March. That’s actually the - - -

COMMISSIONER WHITE: Is that the previous one, do you think?

MR CALLAGHAN: Well, that is the one that should actually have been tendered, so that statement dated and signed 16 March 2017 should be deemed to be the exhibit, Commissioner that you’ve just given a number to.

COMMISSIONER WHITE: 286?

MR CALLAGHAN: Yes. We will deal with the other one in due course.

This is the one that’s prepared in response to Mr Voller?---Yes.

And that’s the one that we’ll be dealing with.

COMMISSIONER WHITE: Thank you.

MR CALLAGHAN: All right. Thank you. That can go off the screen. Can I ask for exhibit number 98 to be placed on the screen and page 84 of the transcript to come up. While that’s happening, Mr Zamolo, you recall you gave an interview or you were interviewed by an officer of the Children’s Commissioner?---Yes.

I just want to take you to part of that interview that relates specifically to Mr Voller, and perhaps could we go over to page 85 and then back to 84, please. Just – I’m not going to take you to it in detail, Mr Zamolo, it’s there for your assistance but I’m


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going to ask you specifically about something that you said there, because on page 84 at line 35 you offered the opinion that Mr Voller was scared of other detainees and his only protection was to play up and get isolated; do you recall saying that?---No, I don’t recall saying it.

Okay. Would you take a look at line 35 and refresh your memory?---Yes. Yes.

You – whether you recall saying it or not, can I ask you to turn your mind back to the situation in Don Dale and whether, in fact, it was the case, as you expressed it there, that Dylan Voller’s only protection was to play up so that he could get isolated; was that the way you saw it?---In my opinion, yeah, that’s what he would do.

And, in particular, was it your opinion that that was his only protection?---Well, not really. Obviously, we were there to protect him, but, yeah, he just used to play up a lot to be isolated from the other kids. I guess just the way he would act in jails sometimes he would upset a lot of the other kids.

Did you mean to imply there, at least, that you, the staff, could not protect him all the time and - - -?---We - - -

- - - in those circumstances his only option was to play up so that he got isolated?---In my opinion, yeah. I mean, we weren’t always there.

And so the system, if you like, for protecting detainees from other detainees was flawed to that extent; was that your opinion?---I mean, yeah, I mean, it’s a jail, like, you know, it’s not the safest place to be.

Thank you. That can go from the screen and can we at this point, please, play the video which is exhibit 58. Mr Zamolo, I’m sure you’ve seen this video before but I will just ask you to watch it again. I anticipate there will be perhaps more than a few questions about it so we will play it at the outset.

RECORDING PLAYED

MR CALLAGHAN: Thank you. You recognise that?---Yep.

In fact, was that your head we can see?---Yeah, that was the back of my head.

In the back of your head - - -?---Yeah.

- - - in the video. And, of course, you’ve been taken to this incident and considered it on a number of occasions; is that correct?---Yep.

In fact, this was the incident which ultimately led to you losing your job; is that right?---Yes.


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You can take it that most of us present have some familiarity with what has been said about it and what has been written about this incident previously – we can lose that image from the screen, thank you. We know that was Mr Kelleher who was speaking to Mr Voller - - -?---Yep.

- - - in the cell?---Yes.

My question for you is this, Mr Zamolo, what did Mr Kelleher say to you prior to entering the cell?---He said he was just going to talk to Voller.

Was that all?---Pretty much.

Did he say what he was going to talk to him about?---Well, Voller made some sort of threats to one of his kids.

Did he tell you that when he told you that he was going into the cell?---No, another guard mentioned it to Ben prior to him going into the cell.

No. Did Mr Kelleher associate his reason for going into the cell into the cell with the fact that Mr Voller had said something that made him angry?---Yep.

What did he say?---He said that he was going to go talk to Dylan Voller about what he’d said.

Right. And did he say anything else?---I don’t recall him saying anything else, no.

Was he angry?---To me, he sort of came across as disappointed more than angry.

We see in the video that Mr Kelleher appears to throw some wet paper at the camera; is that correct?---Yep.

That was something that was done by detainees when they wanted to block the camera, wasn’t it?---Yep.

Did Mr Kelleher have the paper in his hand when he entered the cell?---I think he did, yeah.

Did you see where he got it from?---No.

Did you question him as to why he had wet paper in his hand as he entered the cell?---I didn’t know that he had a paper towel in his hand. He asked me to assist, I did. We went – when we walked in he walked in and walked to the tap and wet the paper towel. I didn’t know he had it. And then he walked in and threw it at the camera. I never had a chance to even talk to him.

You saw him wet the paper?---Yes.


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Did you not query him as to why he was doing that?---No.

Was that because it was well understood that there was only one reason why you would wet paper?---No, I had no idea what he was doing. He told me he was going in there to talk to the kid.

But you’ve agreed with me that wet paper was a common means by which the camera in those cells might be blocked?---Yeah, I guess so.

And you saw him wet some paper?---Well, he walked into the ..... area, he walked to the tap, he wet it, he walked straight to the cell. I didn’t really have much time to question him as to, “Why are you wetting paper towel?”.

Whether or not you questioned him, did it not occur to you that one possibility that might explain why he was wetting the paper was because he was going to block the camera?---No. Nothing occurred to me at the time.

Mr Zamolo, I would just ask you to consider that answer one more time. Did it not occur - - -?---I had no idea why he was wetting the paper towel. I was there to assist him so he could open the cell to talk to Dylan Voller.

You understand though that assisting him might take on a very different context depending on whether the camera was operational at the time?---I had no idea he was going to try to block the camera.

Once you saw him do what he did, did it not raise new some concern about Mr Kelleher’s intentions?---Not really. I mean, he went in, he did exactly what he said he was going to do. He spoke to Dylan Voller and walked out. Had it have escalated, I guess, yeah, then I would have taken action, but I didn’t.

When you say he did exactly what he said he was going to do, it would appear from the footage, at least, that what was done was done in a fairly hostile and aggressive fashion; is that what he said he was going to do?---No. He said he was going to talk to Dylan Voller.

It wasn’t much of a chat though, was it?---I asked him not to go in. He did.

You asked him not to go in?---Yep.

Tell us about that?---I just told him don’t worry about it, what’s the point. He said what he said, it’s not going to change anything, just leave it. He said, “No, I want to speak to him”. He’s worked closely with him for a long time and he wanted to speak to him about what he said and he asked me to assist so he could open the cell door and talk to him, and so I did.

Even though you’d asked him not to do it, you assisted when he did do it?---Well, yeah.


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Mr Palu was present at the time; is that correct?---Yep.

And where was he?---I think he was standing up against the wall behind me, closer towards the door.

Had there been any discussion with him about the fact that Mr Kelleher was going to have a talk to Dylan Voller?---He was a shadow shifter. I’d spoken to Jesse and said just come along, Ben seems pretty disappointed in Voller, he wants to chat to him. Yeah, I said, “Come along, if it gets – if it escalates or it gets” - - -

COMMISSIONER WHITE: Mr Zamolo, if I could just stop you there, when you say he was a “shadow shifter”, I take it that means Mr Palu had just started work?---He just started, yeah.

And so he was learning the ropes - - -?---Yep.

- - - from some experienced Youth Justice Officers?---Yep.

MR CALLAGHAN: It clearly didn’t occur to you, did it, that this incident would ever be examined with the sort of scrutiny that it’s now receiving?---Yeah.

And is that because, as far as you were concerned, this sort of thing was just a daily occurrence?---No, I just never – I mean, like I said, Ben worked closely with the kids, at no time did I think that he was going to assault or hurt any of the kids.

No. But you saw what happened, and even if it mightn’t have involved a physical assault, it was still clearly an aggressive and hostile confrontation?---Well, I mean, he’s only human. He did just hear that he had threatened to rape his child.

Sure?---I mean – you know what I mean? Everyone has a breaking point. They’re going to snap at some stage.

And that’s what I’m getting at. Is the fact that a staff member might be provoked and snap and react in this sort of way something that was, in effect, a daily occurrence at Don Dale?---Yep.

It was?---Yep.

And is that part of the reason why you didn’t think it was particularly remarkable?---Yep.

COMMISSIONER GOODA: Mr Zamolo, was there any process for Youth Detention Officers to deal with that particular situation formally?---No.

Like, someone makes a threat to your family or children?---Yes, you’re supposed to report it to your shift supervisor and then maybe write up an incident report on it. I


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mean, I’ve had the same threats from Voller towards my children. I didn’t let it get to me.

So if it was just a normal incident - - -?---Just reported - - -

- - - report - - -?---Yep.

- - - would take care of it? There wasn’t anything specific - - -?---That’s how I dealt with it, yeah.

- - - about how you may protect your kids or if it was - - -?---No, no. It was just basically report it.

No assessment of how serious the threat was?---No.

MR CALLAGHAN: And can I just clarify the effect of the answers that you’ve just given to me, and I was adopting some language that you used in an interview with the PSU when you indicated that this sort of thing was a daily occurrence, and you just agreed with me that the scenario in which a staff member might snap and react with such hostility towards a detainee might have been a daily occurrence. We’re not just talking about Mr Voller there; is that right?---Voller would probably be the worst for like sort of horrible threats and that sort of nature. I think I’ve had one other threat from other kids, but I – yeah, I haven’t really heard such horrible threats from any other kid other than Voller.

I wasn’t really talking about the threats so much as the reaction, and it was the reaction which I understood you to go agree was a – something that was just a daily sort of event?---Yes.

And that wasn’t just Mr Voller?---No.

Mr Zamolo, you recall on the last occasion you were here we watched a recording you had made, a recording in which you urged a detainee to eat something disgusting?---Yep.

And you’re aware, in relation to Mr Dylan Voller, of evidence that he has provided to the Commission, in particular, in a new statement that you would have seen, paragraph 100, it was suggest that you were one of a group of staff that would humiliate and denigrate detainees; you’re aware of that suggestion .....?---Yep.

Your response to it?---No.

Mr Voller adds that he saw you – and this is in paragraph 210 of his new statement – he adds that he saw you flick some snot into a detainee’s mouth?---No.

So that didn’t happen?---I don’t recall it ever happening.


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Well, you don’t recall it, do you allow for the possibility that it may have happened?---No. I mean, I joked around with the kids a lot, but I’ve never done anything to humiliate them or degrade them or - - -

Well, in exhibit 97, which is Mr Voller’s original statement, at paragraph 207, he has said that you tricked him into drinking a carton of milk in which you tipped some salt; you’re aware of that?---I’m aware of his statement, yep.

And your response to that is that that didn’t happen?---Didn’t happen.

Well, let’s just stick with that one for the moment, that is, the allegation that you dared him, in effect, to drink some salted milk, and can I ask you to accept that this is going to be put against you: that you’ve admitted previously to the other occasion on which you told another detainee to “eat that shit, eat that little bit of shit”, you’ve admitted - - -?---Yep.

- - - that you did that?---But I didn’t dare him to do it.

But I’m just going to put a series of propositions to you, because I’m going to suggest it adds up to the point where a conclusion might be drawn against you. Mr Voller made that statement about the dare to drink some salted milk ever before that evidence of you saying “eat that shit” became public; do you accept that?---Yep.

You’ve given evidence, haven’t you, that boredom was a problem at Don Dale?---Yep.

In the course of looking for things to do, the kids would goof around and play pranks on each other?---Mmm.

And you were one of the Youth Justice Officers who, you say, actually tried to engage with them and to relate to them?---Yep.

You’ve also admitted, for example, grabbing the hand of a female detainee and using it to – playfully, to slap her face?---Yep.

What will be suggested, Mr Zamolo, is that all of these circumstances combined ..... lead us to a certain point, and from that point it’s a very short step to the to the position where maybe just because you were goofing around or getting into the spirit of things, you - - -?---If I did these things, I would tell you, just like I’ve told you with all the other ones that I did it, but I didn’t do these things. So - - -

Even as – as part of, perhaps, well-intentioned silliness - - -?---No.

- - - you didn’t – you won’t - - -?---No.

You won’t ..... into that. All right. Those are the questions I have for the moment, thank you, Commissioners.


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COMMISSIONER WHITE: Yes. Thank you.

MR O’BRIEN: Commissioners, good morning.

COMMISSIONER WHITE: Mr O’Brien, for – Mr Voller’s going to ask you some questions, Mr Zamolo.

<CROSS-EXAMINATION BY MR O’BRIEN [9.36 am]

MR O’BRIEN: So you understand I represent Mr Dylan Voller?---Yep.

Mr Zamolo, at paragraph 26 of the statement that has been tendered as exhibit 286, you’ve sworn that:

Although I told Mr Middlebrook that Youth Justice Officer Kelleher used paper on the camera to clean it, I believe he was attempting to cover the camera.

That’s what you said - - -?---Yes.

- - - to this Royal Commission, isn’t it, that’s what you – that’s your evidence in these proceedings, isn’t it?---Yep.

So you admit then, I imagine, that you did lie - - -?---Well, no, I didn’t lie - - -

- - - to Commissioner Middlebrook in relation to what - - -?---Well, no - - -

- - - you thought - - -?--- - - - I asked Ben what he did - - -

Hang on. Just a minute. To what you thought Kelleher was doing in throwing that paper at the camera, don’t you?---No. I asked him – they were his actions, they weren’t mine. He did it. I asked him, “Why did you do it?”, he told me he was cleaning the camera. It was an attempt to clean the camera.

You don’t – you don’t admit then in these proceedings, despite having said something quite different to these Commissioners as to what you said to your own Commissioner, that that was a flat outright lie?---I didn’t do it. Ask Ben why he did it.

But you said to the Commissioner Middlebrook that he did it to clean the cameras, but you knew at the time, as you’ve said in this statement to this Royal Commission, that you believe he was attempting to cover the camera? You see - - -?--- .....

- - - that’s a different statement, isn’t it?---I asked Ben, “Why did you do it?”, he told me he was cleaning the camera. That’s the answer I gave Middlebrook.

.ROYAL COMMISSION 19.4.17 P-2439 C. ZAMOLO XXN©Commonwealth of Australia MR O’BRIEN

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But you didn’t believe him?---Well, that’s what Ben told me he was doing. It doesn’t matter what I believed. I didn’t do it.

You didn’t believe him because exactly what Counsel Assisting has put to you, this was a common method that you knew that children used to cover the camera, and you saw Ben Kelleher doing it himself?---Nine times out of 10 the cameras are blocked, so for all I know Ben walked into that cell assuming the camera was blocked. So he was trying to clean it. But then again, like I did say to you - - -

Do you say - - -?--- - - - ask him.

- - - that you believed that he was - - -

COMMISSIONER WHITE: Just let him finish the answer, Mr O’Brien. Yes, go on, finish your answer, Mr Zamolo?---But like I keep telling you, they were not my actions. I didn’t do it. If you want to know why he did it, ask him.

MR O’BRIEN: Well, I will be asking him. I’m asking you what you believed and you’re saying now something different to what you put in your statement. You say – did you or did you not believe, as you said in this statement:

I believe that he was attempting to cover the camera.

Is that your evidence or is it not?

MS JARDINE: Well, your Honour – sorry - - -

COMMISSIONER WHITE: Yes.

MS JARDINE: Ms Jardine. I appear for Mr Zamolo.

COMMISSIONER WHITE: Yes, thanks, Ms Jardine.

MS JARDINE: The statement actually says “I believe”, as in present tense .....

MR O’BRIEN: Well, let me go a bit further than that.

COMMISSIONER WHITE: Well, break it down a little more.

MR O’BRIEN: Well, let me go – take you to paragraph 27, if I may, Commissioner.


MR O’BRIEN:

I told Mr Middlebrook that I believe Mr Kelleher had done it to clean the camera, as he would not get into trouble and because that is what he told me.


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You see. You didn’t want him to get into trouble. You were protecting him, weren’t you?---No, I was just an assisting officer. They weren’t my actions, like, I keep telling you, man, like, he did it. What I believe or what my opinion is – it means nothing.

Well, it does mean something because the Commissioner was asking you what happened and what you thought this was for - - -?---Well, at the time, I guess, me and Ben were mates, he told me he was cleaning the camera. I believed my mate.

And you did it to protect him, didn’t you?---No, I believed him. He was my mate.

Well, let me read from paragraph 27:

I had wanted to protect him.

?---Like anyone - - -

Is that not right?---Like anyone would protect their mate.

Is this statement not worth the paper it’s written on, Mr Zamolo?---It is what it is.

You were protecting him. That’s what you’ve said in this statement and that’s what you were doing, isn’t it?---Like I said, he was my mate.

And you lied to Commissioner Middlebrook, didn’t you?---No.

And you lied also to the Children’s Commissioner when they asked you about the very same thing. You said to them also:

I thought Ben was cleaning the camera by throwing this wet paper at it.

?---I did. He told me he was cleaning the camera.

He told me. I believed him.

How – I mean, really, are you saying that you are that stupid - - -?---Really?

MS JARDINE: I object, your Honour.

COMMISSIONER WHITE: Yes. You don’t have to use that language, Mr O’Brien.

MR O’BRIEN: Fair enough. I withdraw that.

It’s a pretty obvious sort of thing, isn’t it, Mr Zamolo?---Yes. To someone who has never worked there before, I guess it is. But like I said, cameras are blocked all the time. So he may have been throwing a wet paper towel to unblock the camera.


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Are you still protecting Mr Kelleher .....?---I’m not. I’m telling you how it is. I’m not protecting anyone.

I want to suggest to you that it’s a very significant matter to have lied in those investigations - - -?---I haven’t lied to anyone.

- - - to the Commissioner?---I haven’t lied to anyone.

And to the Children’s Commissioner, and that’s what you’ve done?---Okay. Whatever.

And I would suggest to you that you knew that he was covering the camera because you knew that he wanted to seriously injure Dylan Voller?---I did not know that. He ..... seriously injure Dylan Voller.

You had seen him only moments earlier throw a pear at the cell of Dylan Voller, hadn’t you?---Yes. Out of frustration.

And you had said in your proceedings earlier in these hearings at 14224:

Ben was angry. I was there if it got out of control. If Ben jumped on Voller, I was there to jump on Ben.

?---Yes. That’s why I was there.

That’s your evidence in these proceedings. That’s what you’ve said, isn’t it?---Yes. I mean, there was the chance. Like I said, the threats that Voller had made to him, there was the chance that he could snap and jump on him. So yeah, I was there for that reason. It didn’t happen.

You see, you knew - - -?---No. I knew there was a chance that it could have got out of control.

You knew that he was angry enough to inflict violence on Mr Voller and that’s what he intended to do?---No. Well, the video shows it for what it is.

Well, the video speaks for itself, doesn’t it, Mr Conan Zamolo?---Mmm.

You said in an email presented to this Royal Commission that – you told this Royal Commission in an email dated 9 December 2016, which is exhibited to your statement, I think, that you immediately reported this incident to Senior Youth Office Jamie Clee; do you remember saying that in that email?---Maybe. Yep.

Well, we will have it shown to you. It’s exhibit – that’s CS2. Go down to the middle of the page, please, that’s it, do you see that:

I reported the incident immediately to SYJO Jamie Clee.


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Do you see that?---Yes.

Now, that’s not entirely true, is it?---I don’t know.

Well, you didn’t report that Ben Kelleher had thrown a pear at the cell of Dylan Voller, did you?---No.

And you didn’t report that Ben Kelleher had attempted to cover the camera or had thrown paper at the camera, did you?---No.

So when you say to this Royal Commission in that email that you reported the incident immediately to Jamie Clee, the shift supervisor, that’s not entirely correct, is it?---I just reported that we had gone and spoken to him. I mean, it was all on camera, no one – I wasn’t tried to hide nothing. How can you when it’s on camera?

Well, you see, there was no incident report, no ..... on this report, no documentation saying, “Ben Kelleher threw a pear at the cell”, “Ben Kelleher threw wet paper at the camera”, there was no report like that, was there?---No, that’s right, there wasn’t.

Because you didn’t make one, did you?---No, and I was - - -

And nor did Mr Palu, did he?---No.

And now did Mr Kelleher, did he?---I don’t know. Ask him.

And – well, I suggest he didn’t and you knew it?---How would I know that?

You don’t know that? Very well. And certainly Mr Jamie Clee wasn’t told about it, was he?---Not from me, no.

So there was never to be any other reports about it, other than what was on the camera; correct?---Yep.

So it’s just as well Mr Kelleher didn’t manage to cover up it, isn’t it?---I guess so, yeah, very lucky.

Because if Mr Kelleher had managed to cover that camera, I suggest to you Mr Voller would have been in very serious danger?---No, he wouldn’t have been.

You knew that then and you know it now?---You just put words in my mouth. I just told you, no.

And you would have – if that camera had been covered up, you would have continued to lie to investigators investigating the matter, wouldn’t you?---Whatever, man.


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MS BROWNHILL: I object. The witness has already given evidence that he didn’t lie so the question is - - -

COMMISSIONER WHITE: Perhaps Ms Jardine can take the objection if she is so advised.

MS BROWNHILL: .....

MS JARDINE: .....


MR O’BRIEN: All we would know about what happened - - -

COMMISSIONER WHITE: The objection is upheld, Mr O’Brien.

MR O’BRIEN: Yes. I accept that.

All we would know about what had happened was from what you had said, what Mr Kelleher said, what Mr Palu said and what Mr Clee was told, correct?---Yep.

And none of that – none of them – said any of those things about the camera being covered up, about the pear being thrown, etcetera, etcetera, correct?---Yes, and it cost me my job, so - - -

It cost your job quite rightly, Mr Zamolo, didn’t it?---Yeah, and I accept that. And I accept that.

Because what you would witness to there was a man’s desperate attempt to inflict violence on a child if - - -?---Absolute rubbish.

- - - that camera had been covered up - - -?---Absolute rubbish.

MS JARDINE: .....

MR O’BRIEN: - - - and you know it?---Yep.

He has answered.

COMMISSIONER WHITE: The question doesn’t become evidence, Ms Jardine, the answer is the evidence.

MR O’BRIEN: You say in the transcript of these proceedings on page 1396 that:

Mr Caldwell, the superintendent, did not want to deal with things.

Do you remember saying that in these proceedings?---Yeah, in my opinion.


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So he largely left it to Mr Sizeland and the Youth Justice Officers, such as yourself, to deal with the difficult and intractable problems that were occurring within Don Dale Detention Centre; is that right?---Yep.

And he basically had a hands-off approach to those sort of difficult complexities that you were dealing with on a day-to-day basis; that’s your evidence, isn’t it?---Yes.

Now, you have said and ascribed and others have done likewise, I should say, that this is – that the work environment at Don Dale Detention Centre was a tough work environment?---Yeah.

You’d agree with that? You were dealing with some of the toughest kids around; correct?---Yeah.

You were dealing with clients like my client who had very problematic behavioural issues; correct?---Yeah.

And you’ve said in your evidence previously that you felt unqualified, untrained, true?---Yeah.

So effectively it was left to you and Mr Sizeland and the others working with you to deal with these difficult issues, wasn’t it?---Yep.

But your approach, Mr Zamolo, was never questioned or scrutinised, was it, until this incident, 16 August 2014, correct?---Yep. And that wasn’t my approach.

Your general approach, your approach to looking after these children was never scrutinised or questioned. You’ve given evidence to that effect, I think?---Yeah.

I want to suggest to you, and despite the nature of my questions so far, that – I’m not being critical of you here, but I want to suggest to you that you were partly in that job, largely, a large part of the reason you were in that job was because of your size, and your tough attitude towards these children; do you accept that?---No.

Because by this stage in 2014, I want to suggest, that Don Dale had become a place which was almost dysfunctional and these children were, as a result of that, largely out of control and unmanageable; do you agree with that?---I guess so.

And that the culture of the working environment required tough men, macho men - - -?---No.

- - - to deal with the children because of the difficult environment within which you’re working; do you agree with that?---No, it had nothing to do with being macho or tough.

I’m suggesting not so much that you were, but that was the attitude, be tough on these kids, that way they’ll comply, that way they will be compliant and behave in


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this very difficult and inappropriate environment; do you agree with that?---No, I was never tough on the kids. I was fair but firm.

A lot of the workers you were with, though, were involved in martial arts and cage fighting and - - -?---It had nothing to do with their job but, that’s what they did as a sport.

Do you agree with that proposition, Mr Zamolo?---Yeah, but they never brought it to their job. It’s not like they would walk in and kick a kid in the head.

In fact, I’ve counted as many as eight of your brethren within the Don Dale Detention Centre who were in that milieu of fighting - - -

COMMISSIONER WHITE: Yes, Ms Jardine?

MS JARDINE: Your Honour, this evidence was given at length at the last hearing.


MS JARDINE: We’ve all heard it and I’m not sure that this witness is the most appropriate person to be answering these questions.

COMMISSIONER WHITE: Thank you. Mr O’Brien, there really – Ms Jardine’s point is reasonably well taken, unless there’s some point to traversing this evidence, it’s probably wasting our valuable time.

MR O’BRIEN: Well, I hope not ever to waste the valuable time of this Royal Commission, Commissioner, but I do intend to make a point in relation to this, and I’m not going through the names and I’m suggesting that that was the nature of the people that he was working with. You’ve heard evidence about it - - -

COMMISSIONER WHITE: We have and did.

MR O’BRIEN: - - - I’m going to the culture of the place and I would like to continue the questioning on this issue.

COMMISSIONER WHITE: So far as it relates to your client.

MR O’BRIEN: Correct.

COMMISSIONER WHITE: Yes. You can possibly do that, but I don’t think we want to traverse the evidence that Mr Zamolo gave on the previous occasion at great length.

MR O’BRIEN: I don’t intend to do that.


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So I asked you whether you accepted that as many as eight of your co-workers in the detention centre who were in that milieu of fighting, martial arts and so forth; do you agree with that?---Yeah.

And I’ve suggested again that the reason why that was so was because of this culture of lockdown, this culture of be tough on the detainees, this culture of forced compliance by aggression.

MS JARDINE: I object.

THE WITNESS: Absolute rubbish.

MS JARDINE: .....

COMMISSIONER WHITE: When you – so that the - - -

MS JARDINE: I’m sorry.

COMMISSIONER WHITE: This live streaming and so on can be effective you do need to go around to the microphone. I’m sorry, but – perhaps, in fact, it would be sensible that you sat at that part of the bar table while your client is giving evidence and – perhaps, Mr Brownhill, your people might vacate - - -

MS BROWNHILL: Happy to vacate.

COMMISSIONER WHITE: - - - one seat. Thank you. Thanks, Ms Jardine.

MS JARDINE: Thank you, your Honour.

COMMISSIONER WHITE: I’m sorry about the interruption, Mr O’Brien. We might need to – perhaps you – would you like to make your objection again at the podium. Thank you.

MS JARDINE: I’ve forgotten what the question was, to be honest, but we’ve given – this evidence has been given.

MR O’BRIEN: Well, it hasn’t.

MS JARDINE: He hasn’t accept that there was this culture of detainees being locked down, culture of bullying, the premise in the question is not something that he’s accepted and he’s asking that question.

COMMISSIONER WHITE: Right.

MR O’BRIEN: Well, in fact, the transcript records that the question was answered. So it doesn’t seem the witness is troubled by the question.


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COMMISSIONER WHITE: No, I don’t think it’s the – troubled by the question, it is that he’s answered it previously and denies that there was a culture of aggression and the cultivation of martial arts-experienced YJOs was purposeful.

MR O’BRIEN: Very well. I will move on.


MR O’BRIEN: Paragraph 13 of your statement, Mr Zamolo, you’ve denied that – you’ve denied that you dared my client to do or eat disgusting things; do you see that?---Yes.

You say that you never dared Dylan Voller to undertake any act and you never dared any other detainee to undertake any act; do you see that?---Yes.

Now, as Counsel Assisting put to you earlier, you have accepted that you are recorded on your own telephone saying:

Go. Go. Eat that shit. Eat that bit of shit.

That’s what you said on the recording, isn’t it?---Yep.

Now, you’ve dealt with this same incident in an earlier statement in exhibit 97 and you said in that statement, paragraph 53:

During that incident, he –

the boy who was being told to eat this bit of shit:

…was encouraged by the other boys.

?---Yep.

Well, that’s not entirely true, is it? You were encouraging him, as well, weren’t you?---Everyone was. It was just all for the camera. Like I said before, it was inappropriate, I was an idiot and it was stupid and unprofessional. That’s all it was.

No one’s going to disagree with you about that. But what I’m suggesting to you is that you’ve said in this statement, in relation to – you didn’t dare any detainee to undertake any act but the evidence of the camera demonstrates that - - -?---Like I said he was going to do it regardless. It was just all for the camera. That’s all it was.

Do you think that:

Go. Go. Eat that shit. Eat that bit of shit.

Is not a dare or encouragement?---Like I just told you, it was all for the camera.


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Going back to the question then: do you accept that that statement in paragraph 13:

At no time did I ever dare any detainee to undertake any act.

Is wrong?---I didn’t dare him. He was already going to do it. He was dared by the other kids. I just said that for the camera.

You said that for the camera. You didn’t say that to the child, is that your evidence?---I said it to the child for the camera.

You were daring him to do that, you were encouraging him to eat shit, weren’t you?---No.

MS JARDINE: I object.

THE WITNESS: We didn’t even know what it was.

MS JARDINE: Again, this – his evidence relates to another witness, it doesn’t relate to Mr O’Brien’s .....

COMMISSIONER WHITE: Well, yes, he has a purpose though. I think I won’t uphold that to objection. Thanks, Mr O’Brien. But you’ve got your answers, no point in going over and over it.

MR O’BRIEN: I’m not going over and over it, with respect, Commissioner.

Now, Mr Dylan Voller has made an allegation of this kind in terms of your daring children, encouraging children to do disgusting things to the Children’s Commissioner in September of 2015, did you know that?---No.

Because it was that complaint to the Children’s Commissioner that led to your – to the police issuing a search warrant on your house and your house being raided on 24 September 2015; did you know that?---No.

You know that your house was searched?---Yeah, I did know that.

And they uncovered a number of telephones, correct?---No. They took the wrong phone.

COMMISSIONER WHITE: Is there any point in these questions?

THE WITNESS: I gave them the right phone, so they could see it for what it was.

COMMISSIONER WHITE: Just a moment, Mr Zamolo. Is there any point in repeating this evidence for the record, Mr O’Brien?


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MR O’BRIEN: Yes, your Honour, because my client has made allegations specifically against this client – this witness, that he, my client, was dared to eat certain things and drink certain things, either in his company or by him.


MR O’BRIEN: And in those circumstances where the – he’s admitted things that are on the video but he hasn’t admitted things that are not on video so I’m entitled to suggest to him.

THE WITNESS: Well, no .....

COMMISSIONER WHITE: Just a moment, Mr Zamolo.

MR O’BRIEN: That the complaint is – my client’s complaint is supported by the fact that he made the complaint earlier to the statement before this Royal Commission, that it was corroborated by evidence retrieved in a search warrant and video footage that’s been played at this Royal Commissioner and, therefore, supports my client’s assertion as to this witness’ activities towards my client.

COMMISSIONER WHITE: Well, yes, we certainly understand that, but Senior Counsel Assisting has put that proposition to Mr Zamolo.

MR O’BRIEN: Well, he said that it’s going to be put and he knew that – Senior Counsel Assisting knew that I was going to put these series of questions. So he started it and I’m finishing it, if you like.

COMMISSIONER WHITE: I’m really asking you perhaps not to repeat to the witness all of the evidence that he gave on another occasion on this topic because it was quite lengthy, if that is your purpose to .....

MR O’BRIEN: Well, I don’t think there have been any .....

COMMISSIONER WHITE: ..... an unreliable witness by doing so.

MR O’BRIEN: There have never been any evidence of a search warrant. I’m told my time is rapidly running out. I’m going to move on.

COMMISSIONER WHITE: Thanks, Mr O’Brien.

MR O’BRIEN: And I’m going to wrap that up by saying this: you’ve admitted, Mr Zamolo, what we’ve got against you from the objective evidence of CCTV footage, but you’re not going to admit anything that we don’t have on you ..... isn’t it?---No. That’s a lie. I’ve admitting to slapping the young girl in the face, that wasn’t on camera.


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You’ve admitted to encouraging other children to do disgusting things, haven’t you?---As a joke. I’ve never made them do anything .....

As a joke or otherwise. And you did that to Dylan Voller, didn’t you?---No.

You encouraged him to drink a carton of milk laced with salt, didn’t you?---No.

And I want to suggest that you were present when Mr Kelleher encouraged Dylan Voller to eat shaving cream mixed with toothpaste?---No.

You were there then, weren’t you?---No. I’ve got no idea what you’re talking about.

Now, you’ve agreed to putting some of the footage that you filmed of the detainees doing things onto Snapchat; that’s correct, isn’t it?---Yep.

And you’ve accepted that that was totally the wrong thing to do, haven’t you?---Yes.

Now, I want to suggest to you that you’re in the habit of humiliating children within this detention centre, including my client, weren’t you?---No. Suggest what you want.

And that’s why you posted these images on Snapchat, to humiliate these children. That’s what you were doing it for, wasn’t it?---No.

You did it for your own personal gratification and for the gratification of others who had similar mind to yours?---You can try and paint whatever picture you want.

Well, that’s what I’m suggesting was going on?---Suggest what you want.

You were taken these – this film you were placing on Snapchat for your own personal entertainment and gratification?---No.

One last topic for you, Mr Zamolo, before I let you go. You said in your early evidence – and this is at 1396 about line 33, that you had said some of the other youth workers made your life more difficult by treating the detainees in particular ways; do you remember saying that?---Yep.

And in particular you said that some other youth workers made it difficult to do things like not filling up water cups for kids in the BMU; is that right?---Yep.

Who were those - - -?---It wasn’t in the BMU, it was in the dorm.

In the dorm?---Yep.

Who were those officers?---I have no idea.

No idea who they are?---I don’t even know their names.


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You didn’t know them personally?---No.

You didn’t know who they were when they were working with you?---I worked with them. I mean, it was how long ago? I don’t know who they are, I don’t know their names.

What, you can’t remember or you don’t know who they?---I can’t remember.

Did you know who they were at the time?---Obviously at the time, yeah, but I can’t remember.

I want to suggest to you that one of them was Jamie Clee, was he one of those - - -?---No, not to my knowledge.

You can’t remember?---No.

It could have been him, but you’re not sure, is that your evidence?---I have absolutely no idea.

Because you can’t remember?---Yep.

Nothing further. Thank you.

COMMISSIONER WHITE: Thank you, Mr O’Brien.

<CROSS-EXAMINATION BY MR TIWANA [10.04 am]

MR TIWANA: May it please you Commissioners, I appear on behalf of Benjamin Kelleher. My name is Tiwana – T-i-w-a-n-a.

Yes. Thank you, Mr Zamolo. Leonard De Souza gave evidence before the Commission on 22 March. Mr De Souza was a Youth Justice Officer at Don Dale, wasn’t he?---Yep.

And he had been working there for a long time before you arrived on the scene?---I think so.

Mr De Souza was a well respected officer, wasn’t he?---Yes.

He was hardworking?---Yeah.

Now, when Mr De Souza gave evidence, he said this did Ben Kelleher, in relation to Mr Kelleher’s involvement with the detainees, and I quote - - -

.ROYAL COMMISSION 19.4.17 P-2452 C. ZAMOLO XXN©Commonwealth of Australia MR TIWANA

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MS JARDINE: Your Honour, I object. One, we’re on a very strict time limit and, two, I don’t know how this witness can make any comment of what Mr De Souza has said - - -

MR TIWANA: Well, I’m - - -

MS JARDINE: - - - about his - - -

COMMISSIONER WHITE: Well, I think we will have to hear where the question - - -

MR TIWANA: Yes.

COMMISSIONER WHITE: - - - is going, Ms Jardine, first. Thank you.

MR TIWANA: So this is what Mr De Souza said in his evidence, Mr Zamolo, and I quote:

He was quite strict actually with the detainees and he kept a more professional approach.

?---He was fair but firm.

So you agree with that?---Yeah.

Thank you. Mr Kelleher wasn’t afraid of hard work as a Youth Justice Officer at Don Dale, was he?---No.

And you agree, don’t you, that Don Dale was a hard place to work?--- Yeah.

And one of the most difficult places to work in, within Don Dale, was the BMU?---Yeah.

Most of the YJOs did not want to work in the BMU?---Yep.

But Benjamin Kelleher was one who did put up his hand to work in that unit?---Yep.

In fact, there came a stage when all of Benjamin Kelleher’s shifts involved him working in the BMU.

COMMISSIONER WHITE: Well, only answer that question ....

THE WITNESS: I don’t know, I worked with Ben. We did work in the BMU 90 per cent of the time.

MR TIWANA: Did you say 90 per cent of the time?---A lot. We were there in the BMU quite lot.


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In the BMU you would be working with some of the more difficult detainees?---Yep.

Dylan Voller spent a lot of time in the BMU, didn’t he?---Yeah.

Now, not only were other YJOs reluctant to work in the BMU but most of them also were not prepared to work with Dylan Voller?---Yeah.

And one reason for that was that he would spit at the YJOs?---Yep.

And another reason was that he would make threats towards YJO families?---Yeah.

Children and partners. However, Benjamin Kelleher did work with Dylan Voller, didn’t he?---Yeah.

In fact, he spent a lot of time with Dylan Voller?---Yep.

Mr Sizeland gave evidence that Ben Kelleher did a lot of individual work with Dylan Voller; would you agree with that?---Yeah.

And Mr Kelleher, one of the reasons why he worked with Dylan Voller, was that he was very keen on trying to help him as much as he possibly could.

COMMISSIONER WHITE: Well, only answer - - -

THE WITNESS: Yeah. I guess so, but – like, I can’t answer that. It’s not – you know .....

MR TIWANA: Okay.

COMMISSIONER WHITE: Just be careful when you ask your questions, Mr Tiwana, so that this witness can, in fact - - -

MR TIWANA: Yes.

COMMISSIONER WHITE: - - - answer them.

MR TIWANA: Yes, Commissioner.

But you are aware that he would spend a lot of time on a number of his shifts with Dylan Voller?---Yep.

Now, in a letter that you wrote to Commissioner Middlebrook on 13 November 2014, you said this – this is part of your statement that was tendered – and I quote:

Unlike many YJOs, Kelleher was succeeding in moderating Voller’s behaviour in order to protect other staff members and detainees from his verbal and


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physical abuse and seek a more harmonious set of interactions within the detention centre.

What you said there was a truthful fact?---Yep.

Okay. Now, I want to take you, Mr Zamolo, to the incident on 16 August 2014. Mr Kelleher started his shift at some time just before 3 o’clock in the afternoon; is that correct?---Yeah, roughly, I don’t know, maybe ..... shift.

You started round the same time?---Yeah, we started the same shift.

And on that particular day the two of you were based in the BMU?---Yeah.

And a new YJO, Jesse Palu, he had just started working at Don Dale a few days before 16 August?---I can’t remember. I know he was a shadow shifter. I can’t tell you how – like, how many days it was.

Okay. But at the start of the shift on 16 August, YJO Jesse Palu was work shadowing you?---Yeah.

Now, you became aware that Mr Kelleher had learnt from a senior YJO, Luke Ross - - -

MR O’BRIEN: I object to this. I mean, if it’s good enough for the goose, it’s good enough for the gander. If I’m going to be told that I’m wasting time traversing evidence that has been given already, I think the last five questions fall into that same category, and I only see us going to the same place.

COMMISSIONER WHITE: Yes. Thank you, Mr O’Brien.

MR TIWANA: You became aware - - -

COMMISSIONER WHITE: You’ve got – you’re on a fairly short timeframe - - -

MR TIWANA: I am.

COMMISSIONER WHITE: - - - so you might just sort of tighten the questions up if you wouldn’t mind.

MR TIWANA: Yes.


MR TIWANA: Okay.

You became aware that Mr Voller was continuing with abusing and threatening families of YJOs?---Yeah.


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And Mr Kelleher told you that he wanted to go and talk to Dylan Voller?---Yeah.

As you’ve said in evidence, he was disappointed in Dylan Voller; is that right?---Yep.

And you said in evidence that you went with Dylan Voller in order to provide assistance?---Yep.

Sorry, went with Ben Kelleher to provide assistance?---Yes.

In order to enter the BMU there had to be two YJOs entering together; is that correct?---Only if you’re going to open the cell door.

In your statement you say that you did not believe that Mr Voller was in any physical danger from Mr Kelleher?---Yes.

You’ve told us that you saw Mr Kelleher throw paper that he had in his hand towards the cameras?---Yes.

Now, you said that nine out of 10 times the cameras were blocked?---Not so much nine out of 10 times, I mean, the kids did block the cameras a lot.

It wasn’t unusual to block cameras with food products like milk and - - -?---Yeah, they’d block it with whatever they could block it with. They’d rip off stickers off poppers and stick them on – anything - - -

Also food products like - - -?---Yeah. Anything. Yep, everything and anything.

Now, when Mr Voller – sorry, Mr Kelleher went over and spoke to Dylan Voller, you were virtually next to him, weren’t you?---Yes.

You were standing near the cell door?---Yes.

And you heard the conversation that occurred between Mr Kelleher and Mr Voller?---I don’t recall any of the conversation.

But one thing you do recall is that at no stage did Mr Kelleher utter any threats towards Dylan Voller?---I don’t – I don’t recall any threats being made.

Following the conversation you and Mr Kelleher left and went back to the office; is that correct?---Yep.

And shortly after is it correct that Mr Voller spoke to you via the intercom?---Yep.

During that conversation that you had with Mr Voller he said words to the effect that he was a dog for saying those things about everyone’s families?---Yeah, it was something like that.


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MR O’BRIEN: I object to that. I object to that. If that’s going to be put, that’s going to be – the source of that’s got to be shown to the witness if he couldn’t recall it.

COMMISSIONER WHITE: Well, he didn’t say he couldn’t recall it. He said something like that.

MR O’BRIEN: Yes. Well, something like that should be put in a documentary form in my respectful submission.

MR TIWANA: For the record, Commissioners, it’s exhibit 64.202.


MR TIWANA: It’s an email from Jamie Clee outlining the conversation that he heard via the intercom.


MR TIWANA: Jamie Clee was present when you spoke to Dylan Voller, wasn’t he?---Yeah, he was.

COMMISSIONER WHITE: Do you want the document put up on the screen?

MR TIWANA: Yes please. If possible, thank you.

You see there that - - -

COMMISSIONER WHITE: ..... next to you if you want to see the actual words, Mr Zamolo.

MR TIWANA: You see there Dylan Voller proceeded to apologise for his comments?---Yeah.

He said along the lines of, “I still want to talk to Ben about working with me because the other officers won’t”?---Yeah.

Did he say that to you?---Honestly, it was so long ago.

COMMISSIONER WHITE: Do you accept that that might have been said?---But if that’s what it – yeah, yep. Yep.

MR TIWANA: And Mr – I’m about to finish – Mr Kelleher had indicated to you that he did not want to speak or have any contact with Mr Voller that day?---He said he would speak to him later.

Yes, and you told that to - - -?---Yeah.


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- - - Dylan Voller. Yes. Thank you.

COMMISSIONER WHITE: Yes. Thank you very much.

<RE-EXAMINATION BY MR CALLAGHAN [10.16 am]

MR CALLAGHAN: One query, Mr Zamolo. You’ve given evidence originally that the cameras were blocked nine times out of 10 or all the time. You’ve qualified that by saying they were blocked a lot?---Yeah.

Was that something that was raised by staff with management? Was that a concern that was expressed?---I don’t know. It was a concern I guess. I’m not sure what the shift supervisors did about it.

Did you raise it with shift supervisors or were you aware of staff raising it with shift supervisors?---Yeah, if the cameras were blocked, then, yeah, it would be dealt with.

Yes. But it was such a recurring thing, was that a concern that was expressed by staff, to your knowledge?---I don’t know.

Right. I understand there’s nothing - - -

MS JARDINE: No, your Honour.

COMMISSIONER WHITE: Nothing, Ms Jardine?

MS JARDINE: Nothing arising.

COMMISSIONER WHITE: Alright. Thank you.

MR CALLAGHAN: I have nothing further. May Mr Zamolo be excused.

COMMISSIONER WHITE: Thank you. Yes. Thank you. Thanks, Mr Zamolo, you’re discharged from your summons to the Commission now and you’re free to go---Okay. Thank you.

<THE WITNESS WITHDREW [10.15 am]

MR CALLAGHAN: Just excuse me for a moment. The Solicitor has indicated that there are some submissions that she would like to make as regards the cross-examination of Mr Voller, which is not scheduled until tomorrow, but I believe she wished to raise them as a preliminary matter - - -

.ROYAL COMMISSION 19.4.17 P-2458 ©Commonwealth of Australia

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COMMISSIONER WHITE: Is this a convenient time?

MR CALLAGHAN: - - - and now that the urgency is – is off, then this may be as convenient as any time.

COMMISSIONER WHITE: Alright. Thank you.

MS BROWNHILL: Thank you, Commissioners and Counsel Assisting. I wanted to briefly put on the record and explain how it has come to be that we have made an application to cross-examine Dylan Voller and that we will be cross-examining Dylan Voller, and also to put on the record the nature of that cross-examination and what we perceive to be its purpose in light of what we understand about what the Commission intends to do with Mr Voller’s evidence.

By way of background, of course, I think everyone appreciates that the default position for vulnerable witnesses who are aged 18 years and over is that cross-examine would be – cross-examination would be conducted through Counsel Assisting and any different position to be adopted would be for a party, and I use that term in inverted commas - - -

COMMISSIONER WHITE: Yes. I really don’t like it but I can’t think of any other one to use.

MS BROWNHILL: It’s much shorter than “person given leave to appear”.

COMMISSIONER WHITE: Precisely.

MS BROWNHILL: But there has to be an application for leave with a list of proposed questions and a statement of reasons as to why the questions should be asked by the counsel for the party as opposed to Counsel Assisting. In relation to Dylan Voller, of course, we understand that he holds and has held the status of a vulnerable witness by virtue of the operation of the Commission’s policy. We understood from various exchanges that occurred in December and I could, if necessary, take the Commission to the extracts of the transcript and so on, but I don’t think that that’s necessary.

But we understood from what happened in December that Mr Voller was a vulnerable witness whose vulnerability rendered him too fragile to be cross-examined by anyone other than Counsel Assisting. What was what we understood from references to various psychiatric reports, which we haven’t seen, and in – as a consequence of responses by his legal representatives to various applications about Mr Voller and the way he was going to give his evidence.

We then received directions that had been made by the Commission on 26 March which required any application for cross-examination of Mr Voller to be made supported by written submissions, and on the basis of the default position for cross-examination of vulnerable witnesses and on the basis of what we understood from


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what occurred in December, we sought for Counsel Assisting to cross-examine Mr Voller, and consistent with what we’ve done with the other vulnerable witnesses, we provided a fairly detailed set of notes for cross-examination which referred to various parts of responsive statements and also additional documents which we also provided.

On 9 April we were told that cross-examination by counsel other than Counsel Assisting does not raise any concerns about potential trauma or harm to Mr Voller, that being what we were concerned about, and that an application for cross-examination by myself would be supported by Counsel Assisting. We have undertaken to make that application for reasons which I will come to, but we want it to be understood that we haven’t singled Mr Voller out for some sort of special treatment as somehow different or separate from the way we’ve approached the evidence of all of the other vulnerable witnesses. We’ve been told to accept, although we haven’t been told why, that Mr Voller is now sufficiently capable of being cross-examined by someone other than Counsel Assisting and we’ve been invited to cross-examine him and that’s what we intend to do.

The second matter I wanted to address is that there appears to be somewhat of a disparity between us and the legal representatives, for the Commission at least, about the obligations of the Commission and Counsel Assisting in relation to the forensic or otherwise approach to the evidence which, as I’ve submitted on previous occasions, drives or derives from what the Commission ultimately intends to do with the evidence that it has heard from vulnerable witnesses. It’s clear from the letters patent and the notice – the appointment of inquiry that the Commission is appointed as a Commission of Inquiry and it’s required and authorised to inquire into specified matters.

In our submission, an inquisitive process incorporates an investigative function, and the pursuit of that function involves a duty on the Commission to investigate. We say that taking a statement or oral evidence from a witness who makes adverse allegations about their treatment, either by named or unnamed officers at a detention facility, is not the end of that duty to investigate. If the Commission intends to make findings about the truth of those allegations, then the Commission has a duty to forensically examine the evidence before it about these allegations. We say that such examination should include probing the alleging witness prior to the finalisation of their statement, obtaining and receiving alternative and contrasting evidence about those allegations, cross-examining the witness making the allegation in the light of that contrasting evidence, and cross-examining the witness in light of inconsistencies in the evidence or improbabilities in what they have to say.

And to the extent that the Commission intends to make adverse findings against individuals, we say that there is no coincidence of interests between those of the Commission and those of the individuals, and in any event, we say that the presence of a party, and again I use that term with inverted quotes, with coincident interests doesn’t absolve the Commission of its duty, and nor does providing an opportunity to such a party to test the evidence, particularly, we say, where the opportunity is not


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necessarily a real one because of the enormous body of potentially adverse material to be responded to in extremely short timeframes, in accordance with a process which requires responsive statements or inconsistent documents to be obtained, produced, instructions sought and so on, and written submissions about where those documents might go, before that opportunity can be realised.

So we raised these matters with the solicitors assisting the Commission recently and on 13 April we got a response which said that Counsel Assisting does not propose to assume the sole responsibility for protecting the Northern Territory government’s interests within these parameters in relation to the above issues. Now, with respect, to make that statement discloses what we suggest is a patent misunderstanding of the duty to investigate because the duty to investigate is not about protecting any particular interested persons’ interests; it’s about protecting all interested persons’ interests by ensuring the Commission’s processes as a whole are robust, reliable and fair.

Now, in the course of our correspondences, we’ve asked to be told a number of things because those things impact upon the nature and extent of any cross-examination, or indeed the need to cross-examine Mr Voller at all, and I will set out what those things are and then what responses we’ve had to them. Firstly, we’ve asked about the purpose of Mr Voller’s evidence; that is, what does the Commission intend to do with this evidence? For example, will the Commission descend into the detail and make findings about the truth of specific factual allegations? Will the Commission reach conclusions – legal conclusions about the fulfilment of legal obligations or - - -

COMMISSIONER WHITE: Could I just ask you to pause - - -

MS BROWNHILL: Certainly.

COMMISSIONER WHITE: - - - at this point, Ms Brownhill, in your submissions, have you taken into account that there is litigation in the Supreme Court which - - -

MS BROWNHILL: I was going to come to - - -

COMMISSIONER WHITE: - - - that relates precisely to these incidents.

MS BROWNHILL: Absolutely. I was going to make that submission because the Supreme Court proceedings are now listed for hearing three weeks commencing on 25 September. They raise in the pleadings the very 10 incidents that Mr Voller alleges in his statement.

COMMISSIONER WHITE: Exactly.

MS BROWNHILL: It seems to us, therefore, that Mr Voller will get his day in court and there will be a judicial determination about all of those allegations. The letters patent appointing the Commission expressly refer to and provide that the


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Commission need not inquire into a particular matter to the extent the Commission is satisfied the matter has been, is being or will be sufficiently and appropriately dealt with by another inquiry, investigation or a criminal or civil proceeding.

So it seems to us that the Commission shouldn’t and won’t grapple with the nitty-gritty of these allegations because they’re properly left to the Supreme Court. That is a matter which we say indicates and suggests to us that Counsel Assisting at least has determined that matters will be addressed at a systemic level rather than at the level of the finer detail about the truth or otherwise of the various allegations. The difficulty with that perception is that we’re having this three day hearing devoted to testing and cross-examining each of the witnesses who’ve made – well, not each of, but a significant number of the witnesses who’ve made responsive statements to the specific allegations made against them by Mr Voller, and similarly an opportunity for Mr Voller to be cross-examined about those matters.

The existence of this three day hearing leaves us still pondering the questions like will the Commission resolve direct inconsistencies between Mr Voller’s allegations and the responses from various officers? Will the Commission make findings about the credit of Mr Voller and the credit of the other witnesses? Will the Commission accept the truth of the generalised allegations made by Mr Voller even though they are virtually impossible to investigate or respond to? Or are we in the kind of hearing where the Commission is permitting Mr Voller to tell his story and to tell it publicly, and to achieve the therapeutic benefits that come from doing so, and ultimately the Commission will simply record Mr Voller’s personal impressions and feelings about his time in detention?

We’ve also asked the question: will Counsel Assisting be putting to Mr Voller the 26 responsive statements which address many of the specific allegations? Will Counsel Assisting put to Mr Voller the many documents which either contrast or clarify or provide critical contextual information to those specific allegations? We’ve also asked whether other parties have been invited to test Mr Voller’s evidence or cross-examine him.

And finally, we’ve asked what is it that’s actually in issue in relation to Mr Voller’s evidence, and we’ve pointed out that this is a matter which, presently, only the Commission, through Counsel Assisting knows. We’ve asked a number of times about whether the Royal Commission proposes to make findings of fact about the specific allegations made. We’ve essentially been told to assume that all allegations will be pressed unless we’re told otherwise. Reference has been made to the terms of reference, but we say they’re not the same as a pleading in a civil case or a charge in a criminal case. They’re broad matters which focus on systemic issues and it’s not possible to discern from them what factual and legal issues, amongst the myriad of allegations that are made, the Commission proposes to actually fix on and determine.

In addition to the presence of the Supreme Court proceedings which leads us to think that ultimately the Commission will not dwell around in the nitty-gritty, is the fact that during the March hearings we did provide detailed matters for cross-examination


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and documents in respect of vulnerable witnesses and with respect to Counsel Assisting what was done disclosed very little, in our submission, in the way of real forensic testing or cross-examination of the allegations made by those witnesses. Now, again, this suggests to you that Counsel Assisting at least has determined to focus at a much higher systemic level by reference to evidence about the system, rather than at that detailed factual level by reference to evidence about particular events or incidents. And what follow from those kinds of questions is the issue about credit.

The mere fact of a contest between Mr Voller – Mr Voller’s version of an event and another person’s version raises issues of credibility and if the Commission intends to make findings about what actually happened where that contest exists, then credibility is live and needs to be explored. We’ve asked those questions, of course, so that we can determine what it is we should be doing with our leave to cross-examine. What we’ve been told, unfortunately, doesn’t provide us with much guidance. So we’ve been told that the purpose of Mr Voller’s evidence is to be determined in a sense by some sort of relevance notion; that is, whether it’s relevant to the terms of reference of the Commission. So we’ve been pointed to things like failings of the youth detention system, the treatment of detainees, oversight mechanisms, whether more might have been done to prevent inappropriate treatment, deficiencies of the physical structures, organisational structures, transfers, lack of engagement and aspects of life in detention.

Now, all of those things are broad and appear to us to be systemic, but something like aspects of life in detention is broad enough to include and encompass these specific detailed allegations about the nature of that treatment and what it involved by reference to events and incidents. We’ve asked whether Counsel Assisting will test Mr Voller’s evidence. The answer we’ve been given is:

Mr Voller’s evidence will be tested either by direct examination or by other means.

Now, we’re not clear on what that means and it’s not clear to us what questions, if any, Counsel Assisting proposes to put to Mr Voller or even about what topics. In relation to our question about other parties and whether they’ve been given leave, we’ve not had an answer so we don’t know. And again, in relation to what is actually in issue, we’ve been pointed to the matters that I talked about in terms of relevance. So all of these questions which were designed to assist us to direct our cross-examination and perhaps to discard areas that we need not address because someone else will, we’ve had no information about.

So we feel compelled to cross-examine Mr Voller because we’ve been invited to do so and because it appears that, at least according to our current state of knowledge, he may not be cross-examined in the sense that we expect he should be, and for that reason, in terms of the nature and purpose of our cross-examination, what we will be doing is seeking to elicit Mr Voller’s position about important facts which we say have been omitted from or elided in the version of events that he has given about


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certain things, and we will also be seeking to address the issue of his credit to enable a finding to be made about his credibility if the Commission decides ultimately to go there.

We note and we’ve made the submission in writing that I think perhaps in correspondence, that there is actually no Browne v Dunn obligation in an administrative process like this, so it’s not necessary for each party to put their contrary case to each witness. Now, the conduct of cross-examination by various parties might lead you to think otherwise, but - - -

COMMISSIONER WHITE: It has from time-to-time made me think that perhaps people think that they’re in litigation.

MS BROWNHILL: Exactly. And there is no obligation to do that, so we do not propose to take up the Commission’s time putting every single contrary position to Mr Voller about every single allegation that he has made. It’s just unnecessary. Also, of course, we appreciate that there is a limited time in which to conduct the cross-examination. We’ve been given a period of two hours. We’re content with that period. We understand what has to happen in the course of these three days. But what it does mean is that we won’t be putting to Mr Voller questions about every single allegation that he has made, but we just want it to be understood that because of that we accept the truth of the ones that we don’t address.

I also have some submissions to make, Commissioners, about documents for tender and so on which we’ve dealt with in our written submissions on the directions, but I don’t anticipate that that is the time to be doing this. I’m not sure about that. So, for example, there are some responsive statements that we’ve prepared that the Commission has but that don’t appear to either be proposed for tender or in – having been made by any witness who’s been summoned to give evidence in these three days. So I would seek to put some submissions about - - -

COMMISSIONER WHITE: Perhaps Senior Counsel Assisting can clarify that position, Ms Brownhill.

MS BROWNHILL: Thank you. That’s all I wanted to say about the cross-examination approach.

COMMISSIONER WHITE: Yes. Thank you. Mr Callaghan, are you in a position to respond to the Solicitor-General’s submissions now or do you want to - - -

MR CALLAGHAN: Not entirely, because it was without notice and it invites a comprehensive response which will be - - -

COMMISSIONER WHITE: Well, it does.

MR CALLAGHAN: - - - forthcoming, but there are a couple of points I would like to make.


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COMMISSIONER WHITE: Yes. Alright. Except I don’t think most of this will be new though. There has been communications between the counsel and the Northern Territory Government on this very topic.

MR CALLAGHAN: No. But there are a couple of phrases thrown into that speech that must – issue must be joined immediately. For a start, I reject utterly any suggestion that any party is not being given a real opportunity to respond to evidence that is being received by the Commission.

COMMISSIONER WHITE: I didn’t see that as a point that was being made. Perhaps I must have missed the tone that you picked up.

MR CALLAGHAN: Well, that was the note that I made and it was followed by an expression of concern about time and resources and so on. The short point to be made is if there are difficulties with resources, we haven’t heard any evidence about it, and if that qualifies the real opportunity that any party, including the Northern Territory Government, has to respond, then we need to know about it.

COMMISSIONER WHITE: Well, I don’t think that’s the main thrust of the difficulties.

MR CALLAGHAN: That was a phrase that was used and that has to be rejected at the outset. The other phrase that issue was taken with was one that appeared in correspondence from the solicitor for the Commission which included the trite observation that Counsel Assisting does not propose to assume sole responsibility for protecting the Northern Territory government’s interests. Now, issue seemed to be taken with that but, in my submission, that is so trite that it invites the question that if Counsel Assisting has the sole responsibility of protecting the Northern Territory Government’s interests, what, it is asked rhetorically, is the solicitor doing here with two juniors? That is a statement that was made in correspondence by the solicitor for the Commission and from which there is no retraction.

As to the issue of what we’re doing with these three days, the witnesses who are being called are those from whom statements were provided by the Northern Territory Government.

COMMISSIONER WHITE: I think from all of them? Perhaps not all are represented by the Northern Territory Government.

MR CALLAGHAN: Not all of them but for the most part and the Northern Territory Government has requested that these statements be tendered. That is happening. There are one or two loose ends which we can discuss but seriously, they’re at the margins. The vast bulk of the material that has been supplied by the Northern Territory Government in response to Mr Voller’s statement is being tendered and I remind everyone that when Mr Voller gave his evidence, no one was named, his statement was redacted, all of this evidence is coming from people who, in effect – through themselves or their legal representatives, naming themselves and


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identifying themselves as being the person to whom Mr Voller was referring. His statement could have remained redacted, but that’s not the way it’s panned out because that’s the evidence that the Northern Territory Government has sought to place on the record before the Commission. And it can’t seriously be contended that these witnesses have some sort of protective statement whereby their statement should be received without being exposed to cross-examination, as Mr Voller will be. He doesn’t have protective status, neither do they. That’s why we’ve got this period set aside for them to be cross-examined. Those are the points that have to be made immediately and by way of explanation for what’s happening now and - - -

COMMISSIONER WHITE: What about the larger question, which is the one I think that we really do need to have some statement about? I think probably you would prefer to take some time to consider that response, Mr Callaghan?

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Yes. Well, it seems to me that it’s – while I understand the various witnesses will be cross-examined by those who have an interest on behalf of their client to do so, that broad question probably needs to be addressed earlier rather than later.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: What, in fact, is the Commission to make of the detailed evidence of Mr Voller? Commissioner Gooda and I, of course, have given this a lot of thought and the state of the pleadings and the state of play of the Supreme Court litigation, which has really only become I think to the fore for us this year, perhaps dominated by another piece of litigation last year - - -

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: - - - raises all of those issues of what the reach of the Commission is in the circumstances of current litigation, and we certainly are but a hand maiden when it comes to Supreme Court proceedings.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: So we really have to keep that pretty carefully in mind. And so issues of systems which are right and central to the terms of reference need to have a basis in fact, of course. You can’t talk about systems unless you have evidence to talk about systems, but we certainly can’t even begin to contemplate trespassing on the litigation.

MR CALLAGHAN: We would not do that but by the same token we can’t compartmentalise this Commission - - -

COMMISSIONER WHITE: It’s very difficult.


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MR CALLAGHAN: - - - because Mr Voller was part of the system for a very long time - - -


MR CALLAGHAN: - - - and a high profile one at that.


MR CALLAGHAN: So this evidence is not irrelevant.

COMMISSIONER WHITE: No, but what is proposed to be done with it probably will govern how at least I think the Northern Territory Government will approach the issue of cross-examination and it’s a fair question to raise.

MR CALLAGHAN: And the question having been I am practiced now and put as to the significance of Mr Voller’s civil action is one which can be answered, I would hope, fairly promptly and - - -

COMMISSIONER WHITE: Alright. I see it’s quarter to 11. Probably about time to take a midmorning break, but what’s the program that you’ve got now of witnesses?

MR CALLAGHAN: We move on to Mr Kelleher. I think then Mr Hansen, Mr Sizeland, Mr Tasker and Mr Palu. Now, the Northern Territory Government was not proposing to cross-examine those witnesses.

MS BROWNHILL: They’re our witnesses.

MR CALLAGHAN: Well, quite. They’re not - - -

COMMISSIONER WHITE: The - - -

MR CALLAGHAN: - - - ..... surely to understand ..... cross-examination.

COMMISSIONER WHITE: No, no. I think the point being made is that they’re a body of evidence that we can receive without having to address the issue that you raised.

MS BROWNHILL: Yes, correct.

COMMISSIONER WHITE: Yes. That’s all.

MR O’BRIEN: Can I be heard very briefly please, Commissioner?

COMMISSIONER WHITE: If Mr Callaghan’s finished.


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MR CALLAGHAN: I have.

MS BROWNHILL: I should just clarify that, Mr Kelleher is not a witness who - - -

COMMISSIONER WHITE: I understand that. He’s separately represented.

MR O’BRIEN: As with Counsel Assisting, Commissioners, we were not aware of that brief interlude by the Solicitor for the Northern Territory and we are taken a bit surprise – we are taken by surprise in relation to those submissions.

COMMISSIONER WHITE: But being a practitioner, Mr O’Brien, the issue surely hasn’t escaped you that we’ve got, in a sense, concurrent proceedings going on.

MR O’BRIEN: Yes, it hasn’t. And we would like to be heard at the opportune moment whether that’s in writing or we’re prepared to put submissions in writing at another time. We want to continue with these proceedings as quickly as possible. Obviously, Mr Voller has an interest in relation to being heard on those sort of matters and we intend to be heard, if accommodated, in appropriate fashion at an appropriate time.

COMMISSIONER WHITE: I’m not quite sure what you’re submitting, Mr O’Brien.

MR O’BRIEN: Well, in relation to the manner in which these proceedings come to bear either by way of cross-examination of my client or in relation to ultimate findings that are determined by the Royal Commission based on my client’s evidence and those whose evidence is, let’s say, maligned to it, well, we would want to be heard in relation to those type of matters at an early stage. And also in relation to whether or not there’s going to be any sort of traversal, if you like, of other matters that are in play for my client in other jurisdictions, well, in particular the Supreme Court of the Northern Territory.

COMMISSIONER WHITE: That’s the only litigation that there is concerning Mr Voller, isn’t it?

MR O’BRIEN: Correct. Well, apart from the ongoing bail issue which is proceeding through the same court but in a different – in the criminal jurisdiction.

COMMISSIONER WHITE: That’s a different matter altogether.

MR O’BRIEN: Yes. So those are the two matters that are involved in Mr Voller’s interest. Of course, AD has interests in that issue as well, because he’s also a plaintiff in the same proceedings. And no doubt Mr Lawrence will want to be heard in relation to it as well, I imagine. I’m standing at this stage to note our interest in this matter.


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COMMISSIONER WHITE: Thank you. I think perhaps we might have discerned that, Mr O’Brien.

MR O’BRIEN: Perhaps.

COMMISSIONER WHITE: Thank you. Now, is it convenient to take the break - - -

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: - - - before you call Mr Kelleher?

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Alright. Thank you. We will take a 20 minute break then. Return at 10 past 11.

ADJOURNED [10.50 pm]

RESUMED [11.21 am]

MR CALLAGHAN: I call Benjamin Kelleher.

<BENJAMIN KELLEHER, RECALLED AND RESWORN [11.22 am]


COMMISSIONER WHITE: Thank you, Mr Kelleher. Would you kindly be seated.

MR CALLAGHAN: Again, could you tell the Commission your full name, please?---Benjamin Kelleher.

Mr Kelleher, you’ve previously given evidence and, of course, you provided a statement which, for the record, is exhibit 106. In that statement, you make what I would respectfully suggest to you are some reasonable concessions, for example, in paragraph 36 you say as to the incident of 16 August 2014 that you would do things differently; is that correct?---Absolutely.

And with that and with all of your evidence, you would like the Commission to assessment what you say?---Yes.

.ROYAL COMMISSION 19.4.17 P-2469 B. KELLEHER FXN©Commonwealth of Australia MR CALLAGHAN

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Can I suggest to you though that there may be a problem with accepting any of your evidence and it is this: that your credibility might be judged by your assertion as to why you threw some wet paper at the camera?---Yep.

You were in the hearing room this morning, you saw the footage - - -?---Yes.

- - - played, you’ve seen it before, obviously, and you’ve taken an oath to tell the truth about everything?---That’s right.

Including the reason why you did what you did as recorded on that video. So I will just ask you at the outset why it was that you threw that wet paper at the camera?---If you, I’m sure, watch the video a few more times .....

I don’t plan on playing it to you?---Okay.

This doesn’t need to be - - -?---Alright. If you recall the footage, I threw that – when I went into the cell – and first of all one thing Conan wasn’t incorrect about is I actually took the paper towels, which the detainees don’t have access to, from the side of the BMU on the windowsill, the stuff that is generally used to cover those cameras is toilet tissue, different – different stuff, first of all. Secondly - - -

COMMISSIONER WHITE: Paper towel?---Yes, it was. There was a stack of paper towels which we used to clean up messes, generally – there’s also a broom there, it wasn’t there at the time. So in answer to your question when I first went into the cell you will see that I threw the paper towels at the camera twice. I caught it both times, looking at it the whole time, I didn’t take my eyes off it or change the density of the paper towels, I didn’t squeeze any of the water out. I didn’t change anything about what I was throwing at the cameras. You will also see that it was saturated and that is shown by how it all drips off the camera immediately after I throw it. In terms of when it sticks to the camera generally the boys just throw yoghurt or stick something to it, rather than saturate something, but obviously given you weren’t – haven’t worked there, you probably – it’s irrelevant, but that’s why it was so saturated, because it was just a big wet mess. I threw it twice. I didn’t look away from the camera, and after the second time I threw the piece of paper towels I was still looking at the camera the whole time. If I was, in fact, looking to cover it I’m pretty sure I would have continued to do so or change the – what I was using. I threw it twice, I looked at it, then I turned to Dylan. The reason why I threw it at the camera is because he has a long history of blocking his cameras and as per my statement he has said many times that people have – you know, he would get people fired and get people into trouble. He said that to me heaps of times and he said it to staff members a lot of times. I didn’t want to put myself in that position and funnily enough I have put myself in that position by acting the way I did. I take full responsibility for the way I acted that day in terms of yelling at Dylan and my – judging by the footage, obviously there’s no audio but given my stance it looks like I’m having a go at him which I actually am and I was disappointed in Dylan but at no point – just from the outset, like you said, would I want to, A, cover the cameras because that would immediately put me in the position where okay, once it’s covered he can say


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whatever he likes, any allegations would be made and I would lose the job I did really, really enjoy doing immediately, but secondly, yeah, I have no desire to – to physically impose myself on a young man. So - - -

But as you say, you were clearly having a go at him?---Yeah.

It was clearly hostile?---I did verbal, yes.

It was clearly aggressive?---Yes, verbally I was - - -

I’m interrupting you because I’m not dwelling on the conduct itself, I’m coming back to the camera?---Yep.

Are you seriously saying that you wanted that behaviour recorded?---I have no – I don’t want it to be recorded that I’m looking so aggressive. In hindsight I didn’t realise I looked that aggressive because I was standing over him. I have no – no problem with it being recorded that I – or have it being heard that I yelled at him because as per my statement, Dylan needs an authoritative figure and he needed to know that in this case I wasn’t joking around. I regret swearing and I regret, you know, the stance that I took over him. I didn’t realise until watching it how it looked, but at no point did I have in my head or feel it appropriate to either, A, threaten him physically, or, B, actually touch him.

Well, again, I’m sure others will ask you about that. I’m just testing your assertions that what appears to everyone else including, apparently, Mr Zamolo to be an attempt to block the camera - - -?---Yep.

- - - and your assertion was not. I take it you weren’t in the habit of blocking cameras?---No.

So as to your choice of material or the ineffectiveness of your method, can I suggest to you that’s not to be unexpected given it was your first time doing it?---Yes. I have used paper towels and the broom and whatnot to uncover the cameras before - - -

Alright?--- - - - but not – no, I obviously haven’t .....

What do you say to the proposition that you pay no special attention – you can be observed as paying no special attention as to whether or not you had succeeded in clearing it. You threw the towel then, as you say twice, then turn around straightaway, you didn’t check the lens to make sure that it was clear?---I might be wrong, but I think I do continue to look at it before I turned away.

We can assess that by looking at it. What do you say to Mr Zamolo’s evidence that it might have been obscured – these cameras might have been obscured by a sticker or something else, whatever they can get their hands on, I think he said this morning?---Yes.


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Was that, in fact, the case?---I mean, in my experience, the boys had covered the cameras with a multitude of things, yoghurt, the stuff off their drink containers and many other things as well, so - - -

And a piece of wet paper towel might not have been as effective if it was a sticker or something like that?---No, I think I – when they do stick toilet tissue over the cameras, generally they have to put a substance to it to make it cover up, you know, often yoghurt, milk or something like that. Sometimes they dip it in the toilet water, but there wasn’t much water in there, so it would depend.

You accepted, I think, that things were done that day that you wouldn’t normally do? Throwing a pear, for example?---Throwing a pear, yeah, absolutely I would not normally do that. And I understand that that minute of footage or that minute of my life sort of paints me in a certain light, but that’s for me to have to handle, I guess. I wish that I hadn’t done that.

And the ultimate suggestion and the only one that I’m going to make to you now is that you did something else that you would not normally do, and that was to attempt to cover the camera?---Attempt to cover it or - - -

That’s what I’m suggesting to you?---I don’t agree with that suggestion but - - -

Alright. That’s all I have. Thank you, Commissioners.

COMMISSIONER WHITE: Thank you. Mr O’Brien will ask you questions now. He’s for Mr Voller?---No worries.

<CROSS-EXAMINATION BY MR O’BRIEN [11.31 am]

MR O’BRIEN: Mr Kelleher, I may be a bit more blunt than Counsel Assisting. I’m going to suggest to you that you are lying to this Royal Commission in relation to your intent as to what you were doing when you threw the wet paper towels at the camera; what do you say to that?---I say that that’s not true, but I - - -

You see, you say that Mr Voller was – you know that Mr Voller was in the BMU cell, number 4, I think it was; corrects?---1, I think, just ......

1. Thank you. And he wasn’t going anywhere, was he?---No.

You came down to the back to the BMU and you retrieved the paper towel from the end of the BMU, the far end?---Yep. Next to the tap, yes.

You wet the paper towel with the tap next to the paper towels; correct?---Yes.

And you say usually there would be a broom there?---That’s right.

.ROYAL COMMISSION 19.4.17 P-2472 B. KELLEHER XXN©Commonwealth of Australia MR O’BRIEN

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But it wasn’t there?---No.

So you say that you had used the wet paper towel to attempt to clean the camera - - -?---Right.

- - - in the manner which we’ve seen recorded; correct?---Yes.

Why, if Mr Voller wasn’t going anywhere, didn’t you just go and try and find a broom and clean it that way if - - -?---I was upset at the time, sir, and I was disappointed in what I heard - - -

Having - - -?--- - - - I was - - -

Sorry. Did you say anything further?---No, that’s fine.

And we’ve seen how upset you were because we can see that you threw the pear with some level of aggression and force at the cell of Dylan Voller; correct?---Yes.

And you’re in an angry and hostile frame of mind; correct?---I wasn’t angry or hostile. I was disappointed.

You were angry, sir, weren’t you?---Whatever you choose to call it. I was disappointed.

Well, I’m suggesting that that footage demonstrates an angry man - - -?---That footage .....

- - - an angry man at this particular child?---Yes. That footage demonstrates me standing over him angrily. There’s no audio there, so - - -

And approaching the cell, throwing the pear in an angry fashion, that’s what it depicts, doesn’t it?---That is an angry thing to do. Yes.

And you see, we’ve been able to see this footage of you throwing this wet paper at the camera, haven’t we?---Yes.

That’s because the vision of the camera was not obstructed, was it?---No.

We can see you entering the cell with Mr Zamolo, can’t we?---Yes.

And we can see you clearly throwing the first piece of paper up at the camera, can’t we---Yes.

The camera wasn’t covered with any mark or dirt or any sort of obscurity, was it?---No.


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So if the camera wasn’t obscured there’s no reason to clean it, is there?---Correct, but I walked into the cell and threw it immediately twice, looked at the camera, it was clean, then I spoke to Dylan, so - - -

I see. You didn’t first check to see if it was dirty. You just assumed it would be?---Yes.

That is preposterous?---Okay.

That is preposterous. The fact is the camera was clean, there was no need to dirty it, you were throwing the paper in order to conceal the image, weren’t you?---And this why I regret even attempting to do it because I didn’t think that this far on it would come about that people are saying I wanted to cover the camera and hurt him physically, so - - -

You never thought there would be a Royal Commission asking you questions - - -?---No, of course not.

- - - about your conduct, did you?---No.

You see, Mr Voller says, as you know, that once that incident had happened and the camera remained unobscured, you threatened him. You threatened him and you said something to the effect of, “You’re lucky, I should break your fucking neck or arm for what you said about my family”. You know that’s what Mr Voller has said?---Yeah, I do know that’s what he said.

You see, it makes total sense that you might want to cover the camera if you’re intending to break someone’s neck or arm; correct?---Correct, but Mr Voller says a lot of things and he’s changed a lot of things since then. And, unfortunately - - -

Well - - -?--- - - - what he did say that day is not true and I didn’t make any threats.

Well, we see you standing over him, don’t we?---Yes. I wouldn’t assume that I would threaten to hurt him physically because I’m standing over him.

You think it’s clear to assume that from the image?---I said I wouldn’t assume that based on me standing over him.

Sorry. Okay. Well, I’m suggesting that that’s totally, totally consistent with your attempt to cover the camera?---You’re saying I attempted to cover it. It wasn’t covered.

Because if you had managed to cover the camera you would have inflicted physical harm upon that boy, wouldn’t you?---No, I would not.

That’s what you intended to do?---No, it wasn’t.


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That’s why you tried to cover the camera.

MR ..........: This is repetition now.

THE WITNESS: Yes. Listen, sir, I understand that, like, you’re trying to paint me based on what I did with the camera and whatnot but, again, I have no intention of physically harming Dylan. Yes, I yelled at him and I don’t regret what I said because I didn’t make any threats. I told him that I won’t be working with him anymore. I told him to pull his effing head in, a multitude of things. That being said, no physical threats were made and I don’t have any reason to, because I’ve known the guy a long time, we had a great relationship up until that point. I was disappointed in the way that he had acted continuously, especially after the positive, I guess, gains we had made in his behaviour and that was evident in the number of incident reports that he had made or had had made about him done drop over time. So yeah, look, I was upset with the guy and unfortunately the way that I did act has led us here and I wish that I hadn’t done it. I wish that I hadn’t even gone into the cell that day, but I did not make any physical threats against him.

MR O’BRIEN: You understand, don’t you, Mr Kelleher, that this Royal Commission and these Commissioners are going to be asked to judge your evidence in relation to whether or not you were attempting to cover the camera and whether you had, in fact, threaten Mr Dylan Voller?---Okay.

You understand that, don’t you?---Yes.

There will be no uncertainty as to submissions made by my client and by others that’s what you were doing. You don’t want to reflect for a moment on your evidence .....?---If that’s the case then I don’t understand why I’m sitting here. I’m telling you what I said and why I did. Also that I regret the way that the day played out and that’s all there is to it. I had a really good relationship with Dylan and that’s come out since the Royal Commission has started.

Alright: Sorry, I don’t want to go over the same ground if you don’t mind. I’m going to ask you some questions about that relationship, because after the incident you came to learn that Dylan had, through the intercom of the detention centre, issued something of an apology to you?---That’s right, but I had a rule with Dylan that if on the shift in question he played up or made an incident, whether it be at the start or end of the shift, that that would be the last time that we spoke until the next shift, so that it would deter him from, say, five minutes into me getting there doing something bad and missing out on the one-on-one time that we had, and I wasn’t going to change that that day.

Well, as it happened you had no one-on-one contact with him at all from that day?---No, that’s right.

But you’ve said, and I think my client accepts, that you did have a reasonably good relationship and rapport with him earlier on and throughout the course of your


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employment there and his attendance .....?---Up until he said that I threatened to break his neck, I don’t understand why – I do – I think I know why he would say such a thing, and I think it was a .....

Let’s not go into that?---Right.

What I want to suggest to you is this: you refused to talk to him after that point; correct?---Yes, until, I think, a day later.

Now, and I ignored his pleas and he was crying over the intercom?---Yes.

He was crying?---Yes.

And he was asking that you come and talk to him?---That’s right.

And you knew – did you know by that stage that he had said that you threatened him?---I’m sorry? That – did I know that he had said that I threatened him? No. But it was, as I said, part of the rules that I made with Dylan is that if he played up and if he threatened to, not just my family like you’ve insinuated, he threatened everybody’s family - - -

And that - - -?--- - - - so I went down and spoke to him the wrong way, so we’ve learned, and I finished with him for the rest of the shift.

At that stage, when this apology is coming through from Dylan Voller over the intercom, a child in your care with whom you had a decent rapport until that day, you thought that you would – you wouldn’t respond to him at all. You knew – sorry – I withdraw that. You knew by the time that you had come back to the – to the area where the intercom was there and spoken to Jamie Clee, that you had done something, you say, out of character, correct?---Yes.

You had behaved in an aggressive manner in throwing the pear; correct?---Yes, I had.

You had gone in and stood over him, correct, even on our own account, correct?---Stood over him literally, not as in - - -

Stood over him and - - -?---Yes.

- - - told him off - - -?---Yes.

- - - and yelled at him; correct?---Yes.

And all of that’s, you say, uncharacteristic and not the way you should have behaved?---Yes, generally with Dylan I didn’t behave that way.


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And he’s there crying on the intercom asking for you to go down and see him?---Right.

And you’ve refused to do it?---That’s right.

A young child with whom you’ve had a relationship, I suggest, in that sort of state. Wouldn’t you want to go down and say, “Look, I’m sorry for standing – and yelling at you” - - -?---I did go down and say sorry. I said sorry to him .....

Just let me finish the question. “I’m sorry for throwing the pear at you”?---Not at him, but okay.

But you didn’t do that, did you?---No, I went down the next day.

You left him crying in the cell alone?---I went down there the next day and he wasn’t alone, he had the other staff on shift for that particular day working with him.

By that stage that day, when this happened, he had been in the cell for almost 23 hours; that’s the case, isn’t it?---That’s right.

And he was in that cell on his own for the rest of that shift?---That’s right.

And into the next day?---I’m unsure about into the next day but I would ......

Until you went and spoke to him again?---Yes.

So I’m suggesting to you sir - - -?---I wasn’t willing to allow him to make those sorts of threats to the other YJOs and myself and then, because he cries on the intercom, think that it’s okay and get that attention, which – after knowing Dylan a long time, know that he wanted.

So you say, “The child had done something wrong, and I was going to punish him by not talking to him”?---I wouldn’t say that was a form of punishment from me, that was my rules with him.

But you knew by that stage that you had done something wrong by him. You’ve acted in an aggressive and hostile manner?---I acted inappropriately, yes.

But you weren’t going to go down and say, “Look, I’m sorry about that”?---Not for the remainder of the shift, no, I went the next day.

It slows a complete lack of empathy for a child in your care to behave like that, doesn’t it?---No, I don’t think so. I was just staying consistent with what I had done always with him.

It is totally consistent with your having made a threat to break a bone in his body; correct?---Incorrect.


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That’s what you had done and that’s why you didn’t - - -?---Incorrect. I need to keep repeating myself. I didn’t physically threaten Dylan that day or any other time. What I said to him that day, again, I will repeat myself again, I told him to pull his head in - - -

Well, you don’t repeat yourself, I’m going to do - - -?--- - - - and then - - -

- - - move to a different topic?---Okay.

I want to ask you about your Children’s Commissioner report interview, which is exhibit 107 and, in particular, 8285 if that can be brought up for your assistance. It’s exhibit 107. Thank you?---Which line, sir?

82 and about .25?---Yes, I see.

This is the evidence you gave to the Children’s Commissioner in relation to these and other events; correct?---That’s right.

And you were asked by the Children’s Commissioner to comment, I think, generally at this stage about the relationship you had with Dylan; right?---Correct.

And you said words to the effect:

Jimmy said Dylan’s playing up again, I’ll say go – I’ll go and work with him. Jamie would frequently say to me, “Can you work with Dylan today, you’re the one he listens to, just do whatever you want to do, if you want to get him out, go, if you want to take him out to watch TV”, and that’s what I mean by free reign.

?---That’s what I meant by free rein.

So you said you had been given free rein in terms of .....?---No. I said that’s what I meant by free rein, as in, I was given the, I guess, permission to do things outside the standard SOPs like watch TV, like play basketball, etcetera.

And, like, talk to him in the sort of firm, stern way that you’ve - - -?---It doesn’t say that there, extra activities.

I’m reading it into your statement - - -?---Right.

- - - because in your statement you say he needed a male role model - - -?---Authoritative figure, yes.

- - - an authoritative figure - - -?---Yes.

- - - “That’s why I spoke to him using swear words and so forth”?---Okay, if we can just - - -


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Well, is that correct or not.

COMMISSIONER WHITE: Just a minute Mr O’Brien - - -

MR O’BRIEN: Sorry, witness.

COMMISSIONER WHITE: - - - you’re going like a Gatling gun at the witness, and you just need to pause and ask the particular questions you want to ask.

MR O’BRIEN: Yes, your Honour.

COMMISSIONER WHITE: Because you’ve taken him to this part of the Children’s Commissioner evidence.

MR O’BRIEN: Very well.

THE WITNESS: If you mean swearing at him - - -

COMMISSIONER WHITE: Just wait a minute, Mr Kelleher?---Okay, sorry, your Honour.

And we will just get some structured questions here?---Yes.

Thanks.

MR O’BRIEN: You also said in your statement and also in this recorded interview that you used firm language and swore at him. I’m not criticising you for that?---No.

I’m just suggesting that’s part of the free rein you had?---Sir, what I mean by firm language and swearing at him, they’re two separate entities. When I swear I mean I swear, for example, and please excuse my language, we might say, “Oh fuck that”, “Oh fuck that”, and you know, we might say, “Oh, I don’t care about that shit”. Putting swear words into normal everyday conversation is something that we do regularly and that was a means for me to get on his level because unfortunately Dylan’s vocab didn’t extend much past that. And when I say “using firm language with him” it might mean that, yeah, if things get out of control for Dylan or he’s playing up I might tell him to pull his fucking head in or I might raise my voice but that was only a means for me to show him what I was saying.

In other evidence in these proceedings you’ve commented on what you perceived as the inefficacy of the management and leadership of Superintendent Caldwell; do you recall giving evidence about that?---Yes, I do.

And you gave evidence to the effect that he left things to Jimmy Sizeland to deal with?---My opinion, yes.


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Your opinion. In fact, Mr Zamolo said the same thing, that to a very large degree, especially when it came to difficult and complex problems within the detention centre, you were very much left to your own devices; correct?---At times, yes.

Yes. And one of those difficult problems – one of those challenges was the behaviour of my client, Dylan Voller; correct?---That’s right.

And so to a very large degree you would sort of be left at sea without any criticism of you, as to how you might deal with the very challenging behaviours of Dylan; right?---That’s right.

And, again, I suggest to you that this really meant that in – that that sort of behaviour that we can see demonstrated on the – on the video camera from 6 August 2014, even accepting what you say about what happened, it was that allowance by management to – or that inability to really direct you as to how to behave that allowed you to behave like that; correct?---I don’t know what sort of allowances management had in terms of being able to maybe train me more. I’m pretty sure everyone sort of did the best they can, certainly in terms of Jimmy and that. But yeah, I didn’t really have any other experience other than just time on the floor with those lads in terms of how I would best deal with things as they came up.

That’s right. And you’ve said you were more or less ill-equipped to deal with the kids .....?---In hindsight I thought I was. At the time I thought I was well equipped because Dylan’s behaviour is improving and that is recorded as to how it went. But after that incident and, you know, thereafter, in hindsight, I feel I wasn’t.

Well, he’s – I mean – I’ll leave that. I’ll move on. That – you see, what I’m suggesting is that you were – you were left in a position where you were required to use brute force and threats and actual violence in order to contain .....?---Where did I use brute force?

And manage his behaviour?---I don’t recall using any brute force. You’ve accused me of threatening to do so, but I haven’t.

I haven’t done it. Mr Voller has said it in a sworn disposition to this Royal Commission?---Right.

You understand that?---He’s also changed a lot of things he said in all his statements.

That is not the case, and I will continue to cross-examine you in relation to what he has said in this Royal Commission and - - -

COMMISSIONER WHITE: Well, I think you might need to actually, as you were very quick to challenge other counsel, to put a specific incident, and when you’re going to use the word “used brute force” then you must give an example of what you’re talking about.


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MR O’BRIEN: The example is that, the use of the force against Dylan Voller in that setting in BMU cell 1 where you threatened him. That’s what you - - -?---Where did I use, brute force is something physical, I didn’t touch the boy, and I didn’t – we keep saying I attempted to cover the camera. The camera wasn’t covered, there was no physical touching of the detainee. The only thing that I did wrong that day was yell at him and stand over him in a way that I feel was inappropriate and I think everyone think was inappropriate at the time but, other than that, I just acted within what I thought was appropriate in terms of handling Dylan and thereafter as well when I didn’t go and talk to him.

And the throwing of the pear is another example of the brute force?---Also – my apologies. Also that.

I’m suggesting there was a culture in this place where management just left it to you to do the best you could in difficult circumstances; you agree with that?---Yes.

And one of those things that you had on your side was your size, your strength and your martial arts ability; correct?---I think the thing I had on my side is that my upbringing was similar to those boys so I could build a good rapport with them. I think my chosen sport and size has no bearing – or, you know, no relevance, perhaps the stories I can tell to the kids and the way that we can chat about what I’ve done in my life, yes.

Let me explore that for a moment. Let’s talk about a 15-year-old boy in a cell in a detention centre - - -?---Right.

- - - in Darwin when his family is hundreds of kilometres away in Alice Springs, you get the picture, don’t you?---100 per cent, I brought them up from Alice Springs.

And he sees you, a strong young male who’s got some sporting prowess, he’s a martial arts champion of some notoriety; correct. That’s what he sees in you?---Amongst other things.

He’s looking for a male role model, as you say. He admires you, doesn’t it?---I would have hoped so at the time.

And he respects you, doesn’t he?---It wasn’t really evident in what he said about myself or other people’s families.

Previously, he did, didn’t he?---Right.

Correct?---Yes.

That was the basis of the rapport you had with him?---That had nothing to do with my chosen sport.


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I’m suggesting it had a lot to do with it, sir?---I don’t think someone’s chosen sport or what they do in their spare time equates to how well they work in their chosen profession.

Because you, Mr Kelleher, were reasonably well liked amongst your peers within the detention centre staff, other Youth Justice Officers, correct?---Yep, I had no dramas.

And there were a large number of you who were similarly engaged and entertained in relation to, and involved in martial arts activities; correct?---We could have all played rugby league. It doesn’t change. It doesn’t mean anything, sir.

Well, I’m suggesting, sir, that it does?---In what respect?

Because you are seen by my client to be someone who he could respect because you were tough?---Yeah, listen, Dylan and I had more in-depth conversations than about being tough or about sport and so I don’t think it extended to just that.

And the way that you effected control of him was by utilising your toughness - - -?---No. . Incorrect.

- - - and your machoness?---Actually, I - - -

Your fighting abilities?---No, that’s not true.

COMMISSIONER WHITE: Let Mr Kelleher answer rather than make statements, Mr O’Brien.

MR O’BRIEN: Well ..... but - - -

COMMISSIONER WHITE: Just - - -

THE WITNESS: I don’t agree, ma’am. I think that I got onto Dylan’s level and gained his respect by being able to sit with him when no one else really would and also we talked about more than just sports, as I’ve mentioned, so I’ve done more than just participate in martial arts in my life and I’ve been a lot of places and so we spoke about that also. It wasn’t limited to just because of my size and I think that’s evident given he asked to see me outside of the centre and stuff as well, you know.

MR O’BRIEN: You see, I want to suggest that you used your ability to be strong and tough against him in a forceful manner so that he coerced to you and so, as you said, to the Children’s Commissioner, “If he gets through a shift without incident please just make that happen”?---Where does it say that, sorry?

That’s what you said that Jimmy said to you.

COMMISSIONER WHITE: Reporting to somebody else saying to him.


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MR O’BRIEN: What Jimmy said to you?---That doesn’t automatically, you know, assume that I do that by being tough or macho. That’s just a sentence that someone said, “Please make that happen” would assume I’m talking about, you know, get him out, take him to watch TV, that sort of thing.

Mr Voller has made complaints in relation to you being involved with Mr Zamolo in what has been called dares, including that you - - -?---Yes.

- - - dared, encouraged him for some reward of chips or otherwise to eat toothpaste and shaving cream combined?---Yeah, I saw the statement.

And, indeed, we know that well before Mr Zamolo’s house was raided, Mr Voller had made a complaint of that type to the Children’s Commissioner, naming you?---Okay. I wasn’t aware but I have seen the statement.

Now, once Mr Zamolo’s house was I had raided we know evidence came to bear that he, in fact, was doing that; you accept that?---Yes.

You’ve said, I think, in your evidence-in-chief, correct me if I’m wrong, that you don’t recall him doing that and you never saw it happen?---No, that’s right. I think there was a – a claim that I was there during one of the incidents or I got shown a mobile phone and that did not happen.

In fact, the complaint by Mr Voller went further, the primary instigators of this sort of daring children to do disgusting and humiliating things was the group of you, Mr Zamolo and Mr Palu?---Okay.

You accept that or reject that?---No, I don’t. Unfortunately, what Conan did with – in relation to other things on his phone was unfortunate because it painted him a certain way but I wasn’t the type of - - -

.....?---He wasn’t the type of person to make that a habit and, you know, I wasn’t there, or it didn’t happen, this thing with the shaving cream. I don’t know off the top of my head. I haven’t read it for a while, but yeah, it didn’t happen and certainly the idea that Jesse Palu was a part of that also is, yeah, not correct.

You simply say you don’t know if it happened or not or it didn’t happen while you were there?---No, it didn’t. I was not there. No.

Okay.

COMMISSIONER WHITE: If it happened you were - - -?---I certainly wasn’t there, no.

Yes. Alright.


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MR O’BRIEN: Just so it’s clear, Mr Kelleher, you understand that Mr Voller has made these allegations well before this Royal Commission was even thought about?---That’s fine. Yes. Understood.

You understand also that when he made that complaint, Mr Zamolo’s phone cooperated to an extent?---Yes.

But you reject that you were ever part of it?---Yes, I reject that I was ever a part of anything like that, yeah.

Despite spending many a shift with Conan Zamolo?---Conan Zamolo, yes, that’s right.

Mr Kelleher, those are my questions of you. I thank you for your time---Thank you.

COMMISSIONER WHITE: Thank you, Mr Boulten.

<CROSS-EXAMINATION BY MR BOULTEN [11.58 am]

MR BOULTEN: Thank you, Commissioners.

Mr Kelleher, my name is Boulten?---Good morning – afternoon.

I represent NAAJA, North Australian Aboriginal Justice Agency. I want to ask you about what form of induction you received when you started to work in the youth justice system in the detention centre in Alice Springs or in Don Dale?---To the best of my knowledge, there was a three day induction. I unfortunately didn’t get to complete mine because we – we were understaffed at the time.

Did you get any training or pointers about how to deal with kids that came from traumatic backgrounds?---No.

Did you get any cross-cultural training to teach you about sensitivities of Aboriginal communities and culture?---Cross-cultural training was made available at certain times but, again, I wasn’t able to partake because of how busy – or my relationship with the kids that were there at the time I had to be at work.

Do you think that would have helped if you had that sort of training?---Yes. I mean, I have come from an indigenous background myself and I sort of leaned on that – those similarities with Aboriginal ..... people so it was helpful for me to have that. But, yeah, of course, anything to help us in that.

Did you ever get any training in boundary setting between you in your professional role and the detainees, like, especially with girls?---No. I do remember it being

.ROYAL COMMISSION 19.4.17 P-2484 B. KELLEHER XXN©Commonwealth of Australia MR BOULTEN

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brought up in the initial induction that we had separated docks of detainees, female and male and how they weren’t to associate, etcetera, but not worker to detainee, no.

What about using bad language even in good spirits or with good intentions; did you ever get any instruction, direction or training about that?---No.

What about training about when it was appropriate to use force on a detainee?---There was a PART training manual that was given to the workers and also I think it was a one day – forgive me if I’m wrong, it might have been one or two days but it was a PART training, but as I mentioned in my statement, I don’t think it was very relevant or, you know, practical.

Did it teach you anything about de-escalation of tension?---No, but from what I can recall there was some talk of what’s called baseline behaviour in the initial induction and the different levels of – that a detainee might go to and what we might use in accordance with where they are and on that scale, but nothing – nothing to talk about de-escalation, not from a I guess psych point of view, no.

You’ve talked in your evidence about you being given a certain amount of free reign in decision-making about how to deal with the most complex - - -?---Detainees.

- - - of the children in detention, and you’ve been critical of some of the management of Don Dale in particular. Did you ever raise with Mr Sizeland the concerns that you had that he was being, as it were, pushed into the front line more than he ought to be?---Off the record, I mentioned to Jimmy that, you know, he works pretty hard. He was always under the pump there and I’ve mentioned that here also, but not in a professional setting. I just stated I liked my job and I didn’t want to, you know, risk raising my head up above everyone because I had seen that in the past that was something that led to people being let go or moved on or whatever.

Did you think that you might be let go or moved on if you became, as it were, a troublemaker in the eyes of middle - - -?---Yes.

- - - or senior management?---Yes, definitely.

Do you think that that impacted on your career?---Yes.

COMMISSIONER WHITE: I wouldn’t mind that being explored a little bit more specifically Mr Boulten. If you don’t want to, I will ask the questions.

MR BOULTEN: Perhaps I will take the lead from you, your Honour.

COMMISSIONER WHITE: Thanks.

MR BOULTEN: But if you want to ask the questions - - -

COMMISSIONER WHITE: I will, if I want, but if you’re going to – if you - - -


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MR BOULTEN: No, I will - - -

COMMISSIONER WHITE: - - - will run with it - - -

MR BOULTEN: Fine.

COMMISSIONER WHITE: - - - then I will let you do it.

MR BOULTEN: Sir, in particular, you’ve been critical of Mr Caldwell and how he didn’t get down onto the floor and mix with kids but he would be seen regularly if someone came - - -?---Came into the centre.

- - - ..... an important person?---Yes.

So did you ever make any complaint to anybody about Mr Caldwell’s - - -?---No, I didn’t. I mean, I may have chatted about it amongst my colleagues, but I never made a complaint, no.

So did you choose not to make such complaints because you thought you might be setting yourself up as a target?---Yes.

In what sense?---Also I’m probably not qualified to decide what the AGM should or shouldn’t do and I didn’t want to be making those assumptions, you know, I was just a YJO at the time and I just stayed in my lane.

What did you think might happen to you if you raised issues professionally through the proper channels?---Firstly, I thought it probably would fall on deaf ears. I was a little bit upset given my ideas that I had brought to management in relation to giving the kids more options, or alternate pathways was shut down. I was a little bit sour about it so I just went, “I may as well say nothing”.

So in relation to that, the thing that really got under your skin, was when your boxing program was shut down; right?---Yes. The boxing program and the food – food van.

The food van for the homeless?---Yeah.

In the esplanade?---Yeah.

Okay. So just going to the boxing program, you’ve described it in your evidence previously, but could I just take you to something that you said about it in your interview with the Children’s Commissioner - - -?---Okay.

- - - back in November. Could exhibit 107 be put up at page 68, please. See the top of the page there, you described how Ms Cohen shut the program down the week before?---......

..... participant was about to engage in a really important bout?---Yes.


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And she said something like, “Boxing’s for thugs” or something like that?---Yes, that’s right. She said exactly that.

So if I can take you to line 32 where Ms Boyle asked you:

So outside that situation do you think management have got the kids’ best interests at heart.

Do you see that?---Yes, I do.

And you said, simply:

I would say no. Still say no because I feel like the management team there have an agenda they need to meet, or from what I can gather they need to meet a certain, you know, tick certain boxes for their performance review.

Did you have a sense that there was some systematic working against programs like recreational facilities, getting kids out of their cells, and that there was a growing trend towards keeping the kids in their cells as a punitive measure and that was it?---I don’t believe that it was management’s MO to keep kids in the cells longer than they needed to be because that then turned their behaviour bad. I think that every effort was made to try and, I guess, streamline the process of a day where we could have people out as much as possible. But in terms of extracurricular stuff or ideas being brought forward that might allow kids just to do more than they currently were, I don’t think that they were – I think the risk of something going wrong meant that they would just quickly push it to the side and just keep things as they were.

So you got the impression that management were risk averse, like .....?---Yes, that’s right, I understand, yes, that’s correct.

They were averse about risks of perhaps escaping?---Yes.

Or - - -?---In their defence – sorry to interrupt you, sir – in their defence, in some cases with the detainees that we did have there, probably rightly so, but the ones that we brought forward and had ideas for, I don’t think that that was a risk, no.

Just in relation to the boxing program, is was it just one person, one kid who ..... this?---It started out with two – it started with two boys. One was released and so he came back to the training officer and the court and the remaining one, yeah, he was the only person involved after that.

So only two detainees - - -?---Yes.

- - - got to go out to go to the gym?---That’s right.

You did take steps to set up a gym inside .....?---Yes, we did.


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How many kids were involved in that?---We involved each child in – they were separated into obviously their blocks, H Block being the high risk detainees, M Block being the ones with a bit more freedom and they were brought down in their separate blocks and the females also.

When you were told that boxing is a thug’s sport, were you aware back then in 2014 about a similar program in Sydney in Redfern called - - -?---Yes.

- - - Clean Slate Without Prejudice?---Yes, I had spoken to a couple of the lads involved just for some ideas.

And that this was a program that was carried out with the cooperation of and the input from the local area command?---Yes.

The Redfern police?---Yes, absolutely.

Did you say anything to management about, “Hang on, they’re doing this in Sydney”?---No. I said to Ms Cohen at the time that that’s like saying because I play rugby league that I have an alcohol problem, I think it was pigeonholing too much, you know, and we had Danny Green doing the coward punch stuff at the time which was a positive thing in the community. Things were looking up in terms of what combat sports can do for kids. So I was just – I didn’t say anything, I was disappointed. It actually says here in line 18 that I did bring that up at the time.

The Danny Green anti-king hit policy?---Yes. So I was just disappointed. I said nothing after that, and I went into nigh shell a little bit. I was disappointed.

It was the main reason why you chucked your job in?---Yes. As well as just feeling like I wasn’t supported at the time. I started a degree because I wanted to progress my way through, I guess, the ranks there, and I just felt like it started to be for nothing.

I want to ask you about Conan Zamolo’s Snapchats. You were a very good friend of his - - -?---I was, yes.

- - - back in those days. You’re not now though apparently?---We’re amicable.

Amicable. Alright. So did you have any social media contact?---Yeah, we had – we had – I don’t have Facebook, I don’t know if I had Instagram back then either. Social media for me at the time was pretty much non-existent, but we had each other’s phone numbers and everything like that, you know.

Okay. So did it ever come to your attention that he was posting images or footage on Snapchat sourced from mobile phone uploads from Don Dale?---I wasn’t send the Snapchats as an individual.

No. But that’s not really what I asked?---The question was - - -


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Did it ever come to your attention?---I had heard rumours, yeah.

All right. So did you ever ask him, “What you doing, Conan?”?---No, I didn’t.

And did you draw it to Mr Sizeland’s attention or anyone’s attention that Conan Zamolo was taking footage inside the detention centre?---I actually got told soon after that he had been spoken to by Mr Sizeland about that. So - - -

Who told you that?---It was just common knowledge in the detention centre.

Well, what did you understand Mr Sizeland had said to him?---Not to take his phone into the centre any more.

There’s been evidence before the Royal Commission that people did sometimes take their mobile phones into Don Dale?---Yes.

Were you aware of that?---Yes.

How common was that practice?---I mean, it’s one of those things where you go – you might hear that someone had taken, for example, Snapchats in the centre or had seen someone sending a text message. It was probably, you know, less than a hand full of times thaw would actually see it personally, but I guess it was common knowledge that it did happen.

Apart from you hearing it about Mr Sizeland giving a direction to Mr Zamolo about filming things, was there ever any memo or direction about bringing phones in?---No, there were signs posted at the doors entering into the, I guess, secure area just saying - - -

But it was common knowledge people were ignoring the signs?---That’s right.

So apart from the signs did any manager say, “This has got to stop”?---I can’t recall that happening, sir, no.

Okay?---It may have, though. I just didn’t receive it or know that happened.

You’ve, no doubt, heard about or seen or read about what was on the footage that Mr Zamolo’s phone was found to contain?---Yes.

And the sort of language that he used, for instance, when he was going into the cell at bedtime or wake-up time, whenever it was, talking about foul language and clearly he says he’s just mucking around, trying to develop or maintain some rapport with these kids?---Yes.

In your evidence earlier today, you made a distinction, apparently, between swear words that were a form of abuse and swear words that were just conversational swear words; do you remember your evidence about that?---Yeah.


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So when Mr Zamolo was in that room saying things like, “Who’s going to suck my dick today”, and all those sort of things, was that the sort of permissible swearing that you thought was okay?---I mean, I don’t think it’s okay and, from a professional standpoint, I don’t think it was okay, no. But I do also know that for Conan that was a means of him mucking around with the lads because outside of what you saw on that phone he did have a close relationship with a lot of the kids, but I certainly don’t think it was okay to say those things.

Alright. So you’ve given evidence forthrightly about how you believed that throwing the paper towel up to the camera was to clean it, not to conceal what was going to happen in the cell in October 2014. What about what you said in your report about that? Did you discuss what you would put in your report with Conan Zamolo?---I may have my dates a bit mixed up, but I actually went back to New Zealand soon after that and didn’t have a chance to chat to Conan pretty much. My report was done with the help of the legal aid that we get from the – I don’t remember the term – we got given some legal help once the ......

.....?---Yes, I believe so. So they were the people that helped us with our statements, not as a group but individually.

Well, what about in the immediate aftermath of the incident, did you talk to Conan Zamolo about - - -?---No, I think it was .....

Please listen?---Sorry.

Please listen?---Sorry.

Did you talk to him about, “Why you had thrown the paper towel stuff up onto the camera?”?---No. I – in fact, he probably didn’t ask because he didn’t want me to say I was either trying to clean it or cover it. He didn’t ask me the question.

So you never told him that you were throwing it up there to clean the camera?---I really don’t recall. It was so long ago. My conversations with him I don’t even remember.

See, what I want to suggest to you seems to be the position, that as the two of you both suggested in your reports, that the paper towel throwing was because you wanted to clean the camera, but you did discuss that with him at some stage in the immediate aftermath of the incident; what do you say about that?---That’s very highly likely.

And that you said to him something like what you’ve said to this Royal Commission, “Oh, I was just trying to clean the camera” or something; is that right?---It’s likely. I – as I said, I don’t recall all of that conversation.

What I would suggest to you is that given the implausibility – objective implausibility of that being true, you and he were working out how to get around the


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problem that you had been filmed throwing this stuff up onto the camera; what do you say about that?---Well, I think regardless of whether or not I was trying to cover it or not, it didn’t happen. So there’s not really much else to say about it.

You’re never going to change your position on that, are you?---No.

That’s all I want to ask.

COMMISSIONER WHITE: Thanks, Mr Boulten.

<RE-EXAMINATION BY MR TIWANA [12.16 pm]

MR TIWANA: Commissioners, just one question.

Mr Kelleher, when you were on your way to the BMU to speak to Mr Voller on 16 August 2014, did you communicate with the shift supervisor to explain where you were or where you were going?---Yep. The common practice is just to radio to the shift supervisor where in the centre you’re going.

And the shift supervisor was Jamie Clee?---Jamie Clee, yes.

And what did you say when you radioed?---This is Ben to Jamie, I’m going into the BMU.

Did you say specifically to see who?---Yeah, I would have said that I’m going to see Voller.

Thank you. That’s - - -

COMMISSIONER WHITE: Thanks, Mr Tiwana.

MR CALLAGHAN: There’s nothing further for Mr Kelleher. May he be excused.

COMMISSIONER WHITE: You’re released from your summons Mr Kelleher---Thanks.

You’re quite free to go. Thank you for your assistance---Okay. Thank you.

<THE WITNESS WITHDREW [12.17 pm]

MR CALLAGHAN: I call Trevor Hansen.


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<TREVOR HANSEN, RECALLED AND RESWORN [12.18 pm]


COMMISSIONER WHITE: Thank you, Mr Hansen, please be seated. Is Mr Hansen represented by your side?

MS BROWNHILL: Yes, he is.


MR CALLAGHAN: Mr Hansen, could you once again tell the Commission your full name, please?---Trevor Hansen.

You have prepared a further statement for the purposes of this Commission, that’s a statement dated 16 February 2017; is that correct?---That is correct.

And I might get that on the screen in front of you. You seem to have a hard copy in front of you as well; is that right?---You just have to let me know which one.

Well, there’s only one dated 16 February 2016; is that right? Or is there more than one? To cut things short, the one on the screen - - -?---Yep.

- - - which is specifically responsive to things said by Mr Voller. That’s the statement dated 16 February 2017; is that correct?---That’s correct, yes.

Yes. I tender that.

COMMISSIONER WHITE: Exhibit 287.

EXHIBIT #287 STATEMENT OF TREVOR HANSEN DATED 16/02/2016

MR CALLAGHAN: I think there are four grants of leave to cross-examine Mr Hansen, so I won’t for the moment take up any of the time. I will allow the parties to go about that business, Commissioners.

COMMISSIONER WHITE: Thank you. Mr O’Brien.

<CROSS-EXAMINATION BY MR O’BRIEN [12.19 pm]

.ROYAL COMMISSION 19.4.17 P-2492 T. HANSEN XXN©Commonwealth of Australia MR O’BRIEN

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MR O’BRIEN: My name’s O’Brien, Mr Hansen, and I represent Dylan Voller. Do you know that on 25 November last year my client swore a statement in these proceedings, and alleged within those – within that statement that you performed a wedgy upon him; you understand that?---Yes.

And you understand by that that you pulled his underpants up between his bottom cheeks and caused him pain and discomfort. That’s the allegation. You understand that, don’t you?---I understand the allegation. Yes.

Thank you, and I deny that?---I do, yes.

Now, since Mr Voller gave his statement and then his evidence in this Royal Commission, quite a number of other young former detainees have given similar accounts as to this wedgy occurring; you accept that?---I do, yes.

In fact, AN, BR, BQ, BE, AY, AU and AV are the pseudonyms given for eight other detainees who’s given – who have given evidence in statements subsequent to Mr Voller’s statement; do you understand that?---Yes, I do.

And I wondered then, given your evidence in March of this year, whether you had had time to reflect on whether you wanted to maintain your denial of having inflicted this type of discomfort on my client Dylan Voller?---No, I stick with what I’ve said. I’ve said the truth.

You see, there seems to be a body of evidence that this was your modus operandi to pull the pants or underpants up at the back of a young detainee’s body so that they wedged between the bottom of the child, that’s the body of evidence, you see, you’re dealing with here; you understand that, don’t you?---Yes.

But you say that wasn’t your modus operandi; correct?---Correct.

But you do acknowledge that you participated in this one man escort, as you’ve said, wherein you did grab the back of the pants and the arm of a detainee in order to escort them to particular places; correct?---That is correct, yes.

And you’ve accepted, I think, that that’s a form of restraint and use of force?---That is correct.

I want to suggest to you that – let’s assume that when you’ve done that, because of the forward motion of the – of the use of force, that the pants or underpants of the child have, in fact, travelled up between the bottom cheeks of the detainee, would you accept on that assumption that that is an invasive manoeuvre on that detainee?---No, I do not grab the underpants.

I’m asking you to accept that in the event that the child’s pants or underpants travelled up between the bum cheek of the child, for want of a better expression, that


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that would be an invasive technique and use of force; do you accept that or not?---No, I don’t, no.

I’m suggesting to you, sir, that that would be an invasive use of force in that technique; you don’t agree?---No, I don’t.

Very well. Because I want to suggest to you that that’s akin to an assault, even possibly a sexual assault; you don’t agree?---No.

You don’t accept that?---No, I don’t, no.

The use of your hand, your force, causing the garments of the child to travel up between the private parts of that child’s body, you don’t accept is an invasive manoeuvre?---No.

I want to suggest to you that not only is it a manoeuvre of some significant invasion of that child’s privacy, but also it’s a manoeuvre that may well traumatise a child. I expect that you will reject that?---Well, nobody ever made a complaint about it, so no.

Well, I’ve just told you there’s been nine complaints by former detainees in these proceedings about it?---That’s now.

Because they complain now, that means that it’s somehow discountable as being invasive or discomfort?---No. That’s – I did more one person escorts than just those nine so, sorry, I can’t answer that question for you.

Very well. I want to suggest to you this: for a young person who may have previously have been the victim of a child sexual assault or something of that kind, that could be extremely re-traumatising to have that sort of manoeuvre where the pants travel up behind their backside; would you accept that?---I’m not an expert in that field so I’m sorry, I can’t comment.

It’s not any sort of expertise. That is common sense, sir. You don’t accept it?---No.

You see, at paragraph 15, Mr Hansen, you say in your statement:

Nobody enjoyed using force and it was avoided.


I want to suggest to you, sir, that the evidence in this Royal Commission will suggest that you did enjoy using force and you did it often?---No.

The body of evidence will suggest in this Royal Commission, I suggest to you, that you took somewhat of a perverse pleasure in this method of restraining children?---No.


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I have nothing further of this witness, thank you.

COMMISSIONER WHITE: Yes thanks, Mr O’Brien. Thank you, Mr Boulten.

<CROSS-EXAMINATION BY MR BOULTEN [12.26 pm]

MR BOULTEN: Excuse me. I’ve left my note on the other side of the bar table. My name is Boulten and I’m appearing for NAAJA, the North Australian Aboriginal Justice Agency and just for these purposes, Commissioners, I’m also posing some questions that relate to one of NAAJA’s clients, AU.

COMMISSIONER WHITE: Thank you. Does Mr Hansen – do you know for whom those initials stand, Mr Hansen, AU? If not .....?---I did have all that information, yeah, I am aware of it.

Yes. Thank you.

MR BOULTEN: And also BR?---Yes.

Now, in relation to AU, you’ve put on a supplementary statement that deals with the particular allegations that that young person made concerning – I will use the term, a wedgy, or similar force?---The one I’ve got for AU doesn’t have a wedgy in it.

Okay. I will withdraw wedgy. It’s force that was applied to him. You’ve given evidence in your supplementary statement that relates to records concerning the use of force register that you say helps to demonstrate that you did not use force on him as he has contended in his statement?---Well, I put – hang on, I will see if I can find it – I’ve got nothing there for use of force for him at all. Are you sure I’ve got the right one?

Okay. So it’s a statement - - -?---AU?

A statement, AU?---Yep.

And it’s a statement dated 13 March 2017?---Yes. That is the one I’ve got here.

That’s exhibit 130 and you’ve said in paragraph 7 of that statement that you’ve recited his evidence in paragraph 7 of the statement; do you see that?---Yes.

So are you aware that that detainee gave evidence earlier in the proceedings suggesting that if it didn’t happen on the first day, it happened early in his time in Don Dale, perhaps in the first week; do you understand that?---No, I did not know that, sorry.

.ROYAL COMMISSION 19.4.17 P-2495 T. HANSEN XXN©Commonwealth of Australia MR BOULTEN

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So in your statement in paragraphs 9 and 10 you’ve referred to records that were kept at Don Dale and you’ve done so for the purpose of assisting you in demonstrating your denial, haven’t you?---Yes.

So when you gave evidence in Alice Springs you talked at some length about the use of force register; do you remember doing that?---Yes.

And you explained how the use of force register was often out of reach?---That is correct.

And, indeed, locked into an office that you personally didn’t have access to?---That is correct.

And it would be sometimes weeks and months that would go by without you being able to make an entry - - -?---No, that is incorrect. I never said weeks or months.

I will check that, but what’s your estimate about the .....?---I normally - - -

What is the type of gap that you can remember - - -?---It would depend on the day of the week. Like, for example, if it was a Monday, you couldn’t access it, you would make sure the next day that you would see to get that book back. If it was on a Friday, then, obviously, over the weekend it would have been harder, but you would still try to contact the on-call manager to see if they could get it out for you, or if you couldn’t get it, then obviously put it on the incident report.

There would be weeks or months that would go by without you using it though; right?---Using it, yeah, that’s correct, because you wouldn’t use use of force.

You used this wedgy approach as a common form of single person escort; right?---That is correct, yes.

You suggest that it’s not use of force though; is that right?---No, it’s use of force.

So did you enter every use of a wedgy in the register?---Yes.

Every time?---Well, it should be, yes.

Did you?---To my recollection, yes.

The use of force register was a very incomplete method of maintaining a record about use of force though, wasn’t it?---No. It was a register.

It was a register that wasn’t used comprehensively, wasn’t it?---No, it should have been used comprehensively.

No. That’s quite different though, isn’t it. What should have happened is not what always happened, did it?---Well, I can’t go by what other people did, but I used it,


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and if I didn’t, as I put on that incident report, I would put that the use of force register was unavailable.

So as I understand it, your approach generally to the multiple allegations that have been made about the way you used this single person – single person escort mechanism is, “Yes, I did it but it didn’t have the characteristics of a wedgy, wedging their underpants up into their bum crack”; is that right?---That is correct, yes.

And at the risk of being jumped on for asking a question very similar to what’s been asked by others, how come all these people have got it wrong?---I’m unsure. I’ve said I’ve done it multiple times and not at any stage during my time there did anybody put a complaint forward.

No one in management?---No.

Ever – excuse me?---No detainee, no - - -

Please. Please, just hang on a second. There wasn’t a single person ever in your career that pulled you aside and had a quiet chat to you to say “You shouldn’t actually be doing it” or “You shouldn’t be doing it that way”?---No, never.

Not one single person?---Not one person. No detainee ever put a complaint forward, no management, nobody had ever spoken to me about it.

The way you’ve explained it to the Royal Commission is that it was de rigueur, was the usual way of escorting a single person through the – through the facility?---No, that was the way I was trained when I first started.

It was your usual way?---Well, nobody else was trained. Everybody else that had been trained had left the employ.

So even though you were the only person in Don Dale whoever did it or you ever saw do it, because you were the only person who ever received training to do it that way, no one ever said to you “Why are you doing that?”?---No.

COMMISSIONER WHITE: I think I raised this with you when you gave your evidence in Alice Springs, Mr Hansen, but perhaps it’s worth asking you this similar question: was there discussion about the fact that it was no longer regarded as a suitable way in which to undertake a single person escort because nobody else was being trained in it?---No, it was never – never said to me, ever.

There was no conversation with - - -?---No conversation.

- - - other Youth Justice Officers that, “How come you get to do it this way and we’re not allowed to?”?---Officers had said things about it, like, I have put in my statement if anybody said anything I would tell them that they’re not to laugh at it, not to call it


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a wedgy not to do this, that I had been trained ..... nobody had told me ever to stop doing it, ever.

MR BOULTEN: So when people laughed at it, presumably they did if you told them not to?---Well, in the office afterwards - - -

Yes?--- - - - and I would say, “No, don’t do that, that’s not appropriate”.

What’s not appropriate?---To laugh.

To laugh in an informal setting?---Yes.

So who laughed at it?---I can’t remember off-hand.

What sort of person, what category of person, was it a Youth Justice Officer, was it middle manager. was to a shift supervisor - - -?---No .....

- - - was it a director?---No, there was nobody else in the offices, nobody else is allowed in there. So it was officers.

But what sort of person thought it was funny and was laughing about it?---Some of the officers.

Okay. Were they Youth Justice Officers?---Yes.

Were they shift supervisors?---No, because I was the shift supervisor.

Okay. Was it someone on top of you?---No.

So what did they say? What sort of comments did they make when they were cracking jokes about it or laughing?---Just laughing, really.

Yes, but this was not when it was happening, this was after the fact, you see?---I actually don’t listen to those comments. I mean - - -

Sorry?---I don’t actually listen to those comments. If somebody starts something like that - - -

Yes?--- - - - I would say, “Look, that’s not appropriate”, and nip it in the bud right away. It’s not something you want people to keep talking about so - - -

Apparently, you told these laughers that you were trained to do it this way; is that right?---May have said it one or – I mean, I have said it before, that I was trained that way and they would have got to do it.

So who trained you?---I was trained by the prison officers, we had cell insertions and extractions.


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When was that?---I’m not sure of the actual date.

What’s the name of the course?---Cell insertions and extractions.

Okay. And did you see this happening in the prison?---I never went to the prison.

So was the instructor a prison officer?---Yes, they were.

Did you receive a manual that demonstrated this technique?---No.

There was no drawings or diagrams or - - -?---No.

- - - or text?---No.

Instructions? This is word of mouth; is that right?---This was actually physically showing and doing it, yeah.

Okay. Physically showing what by whom upon whom?---Officer against another officer.

So they didn’t wedge up the other officer’s underpants?---I’m not sure.

Well, what do you reckon?---I’m not sure.

Perhaps they did?---I – not sure. As I said, I wasn’t the other officer. So - - -

The people in Don Dale who you escorted in this manner, were they typically shorter than you?---No. It was all people. It depended – it didn’t depend on the size, it depended on the number of staff around.

Yes, but when you did it they were smaller people typically to you?---No, I’ve done it to other people as well. So it depends on the size of the – number of staff that you have because if you’ve only got one staff member or two staff members on the floor, the one person escort was utilised because you’ve moved one on one and you could still have staff to do your duty of care to look after the other detainees on the floor, because if one person threatening another ..... you take one person away and take all the officers away, you could have the friends of that detainee go bash another kid. So you had a duty of care to make sure that you looked after all of your detainees and the one person escort was utilised one on one to take that person away but still look after all the others because you take that one away, you still have one that’s being threatened or may want to bash the friend or whatever, so you had a duty of care to look after all detainees.

Most of the ones that you took away were young people who weighed less than you and who were shorter than you and built more slightly than you; right?---No.


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COMMISSIONER WHITE: What do you mean by that answer “no”, do you say that the children that you performed a one handed escort on were as tall as you?---There were some, yes. I can’t remember actual names, but I did it on – as I said, to move detainees and if you had to move them quickly and effectively to stop the fights, to stop the – like, one person having a fight with somebody and other people joining in, the thing was to get them out of the road as quickly as you could but leave staff there so they could look after the rest of the detainees, so I did it on all sizes.

I think I understand that part of your evidence. Mr Boulten’s question was about what was the height and approximate weight of the detainees that you were managing in this particular way?---I actually never thought about it. I mean, you had detainees that were as big as me. There was detainees a lot smaller than me. They came in all different sizes and weights and everything. So I moved what had to be moved at the time to stop a fight from eventuating.

MR BOULTEN: So when I asked that question about whether these young people were typically shorter, less heavy and not as well built as you, it was a question about what the typical person was. Your answers to my question and your answers to Commissioner White’s questions about this very topic have been designed to smudge the issue that you were dealing with kids who were littler than you; right? That’s what you’re doing?---Well, most kids are littler than me, so yeah.

Why have you been given answers saying, “Yeah, but sometimes I dealt with tall kids”?---Well, sometimes I did move. You asked a question, you’re specificising it – making specifics on a size, I didn’t do that. I did it to all. I wasn’t picking on one size. I was actually responding to the situation.

So in conclusion, just this: apart from your initial training with prison guards, no one in the youth justice environment ever trained you otherwise in how to escort somebody without a partner; is that right?---No. We had PART, yes.

Sorry?---We had PART, yes.

Alright. Well, this was this technique included in the PART training?---No.

Did you understand the PART training was training which was designed to show you how to do it?---PART training was designed for a group environment so if you had two or three officers to move one detainee. As I said, this was a one person escort. If there was no officers around and I had to do a one person escort I would do it. If there were other officers around then PART would be utilised.

COMMISSIONER WHITE: Wasn’t it the case then, Mr Hansen, that since you were the only officer after all the others who had been trained in the one handed escort in the way in which you’ve described it, after they had all left the service, you were the only one doing it, no other Youth Justice Officer was in a position to be


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able to undertake the escort of a detainee by him or herself because they hadn’t been trained - - -?---That is correct, yeah.

- - - to do so?---That is correct, and I wasn’t qualified to train, so I couldn’t train them and show them how to do it. I’m not sure if it was ever thought of to train them, I never followed through on that.

MR BOULTEN: Did you ever see a Youth Justice Officer take someone themselves without assistance?---Yes, I’ve actually done it myself.

No, not you, someone else?---Yes.

Well, how did they do it?---Bear hugs.

Bear hugs?---Yeah.

Right. Did you think that was a good system?---No, because it wrapped around their chest and we were always taught to keep away from their upper body.

Did you tell them that?---I have told them, yes.

Did you tell them that they should be using the single-handed escort technique?---No because, again, I wasn’t trained to teach them.

I suggest to you that you had a propensity to wedge kids’ underpants up into their bum crack to make it really, really uncomfortable, bordering on painful to them, didn’t you?---No.

Alright. Thank you.

COMMISSIONER WHITE: Thanks, Mr Boulten.

MR CALLAGHAN: There’s nothing further for Mr Hansen. May he be excused.

COMMISSIONER WHITE: Mr Hansen, you are released from your summons to appear before the Commission now and you’re free to go. Thank you---Thank you very much.


MR CALLAGHAN: I called James Sizeland.

<JAMES SIZELAND, RECALLED AND RESWORN [12.47 pm]

.ROYAL COMMISSION 19.4.17 P-2501 J. SIZELAND ©Commonwealth of Australia

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COMMISSIONER WHITE: Thank you. Please be seated.

MR CALLAGHAN: Once again, Mr Sizeland, could you tell the Commission your full name, please?---James Michael Sizeland.

You’ve prepared a further statement dated 3 February 2017; is that correct?---That’s correct.

I will just get that on the screen in front of you. Is that the further statement that you’ve prepared for the purposes of this Commission?---That’s correct.

Yes. I tender that statement.


EXHIBIT #288 STATEMENT OF JAMES SIZELAND DATED 03/02/2017

MR CALLAGHAN: Mr O’Brien has leave to of the court to cross-examine.



MR O’BRIEN: Thanks Commissioner.

O’Brien is my name, Mr Sizeland and I represent Mr Dylan Voller. I want to ask you about 24 hour placements, first of all; do you know what I’m talking about?---Yes.

The Youth Justice Act – and I can take you to the section if you need to, but bear with me for the time being – the Youth Justice Act provides the power to a superintendent to isolate a child for 24 hours; you understand that to be the case now?---Yes, that’s the case.

And as at August of 2014 you understood that to be the position then?---Yes, I do.

Now, in the event that a longer period of isolation was required, the Commissioner was required to give approval for a placement of up to 72 hours under the Youth Justice Act as well; correct?---Yes, that’s correct.

.ROYAL COMMISSION 19.4.17 P-2502 J. SIZELAND XXN©Commonwealth of Australia MR O’BRIEN

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You know that now and you knew that in August of 2014; correct?---Yes, that’s correct.

Now, Mr Voller has claimed in his statement, and you’ve directly dealt with it in your statement that’s just been tendered, that you place him on 24 hour placements and indeed threatened to put him on 72 hour placements; you know that’s the allegation, don’t you?---I’ve read his statement, yes.

Now, you’ve said that you – obviously you accept that Mr Voller was placed, whilst you were the acting – sorry, assistant general manager of Don Dale Detention Centre, Mr Voller was placed on a number – quite a large number of 24 and 72 hour placements within the BMU?---That is correct, yes.

And you say, do you, that on each of those occasions you contacted Mr Caldwell and organised for his authority to make those placements?---Yes, that is correct.

Because you say, I imagine, based on what you’ve said in your statement, that you didn’t have the authority under the law to put him in a placement of 24 hours; correct?---That is correct. I did not have the authority.

Now, we’ve heard a lot of evidence in these proceedings, both in March and even today that Mr Caldwell was not often on the floor of the Don Dale Centre; do you accept that evidence?---He was often available, but he’s not often on the floor.

So I imagine that the discussions that you had with Mr Caldwell must have been over the telephone in most instances or by email, can you tell me?---No, quite often they were in person.

Right. That he was on the floor?---He was available in the centre. To put it into context, when you say he’s on the floor, you mean he’s actually out in the yard. Quite often Mr Caldwell was available in the centre and often it was quite easy to get access to him.

And I take it that, in many instances, the authority that was given to you to then direct your staff to take Mr Voller and isolate him in the BMU, that that authority was given verbally?---Yes, that’s correct.

And consequently that would explain why there’s very little, if any, written record of those authorities taking place; correct?---That would explain it, yes.

Because it is the case that almost every occasion Mr Voller was taken into isolation, there is no written authority for Mr Caldwell authorising it?---That could be correct, but authority had to be sought.

Now, and that deficiency of paperwork, if you like, relates to the practice that you had of simply asking him “Can I do it?”. Him saying, “Yes, you can”, and off it


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goes, putting it very basically?---Putting it basically that’s a systematic failure that had been in place for a long time, yes.

Now, I want to suggest to you that this is what may have occurred from time-to-time with Mr Voller, and it may even explain why he thinks what he does and has said what he said in his statement, that you would say to Mr Voller or have your staff say, but something you say to him, “You’re going to be on a 24 hour placement” and then go to Mr Caldwell for the authority. Did that happen?---Not in my recollection, no.

Well, you see, we’ve heard this evidence that you were left to deal with the complex problems, the difficult challenging behaviour of detainees and other things for Mr Caldwell. You’ve heard that evidence, haven’t you?---No, actually, I haven’t.

Let’s assume that that’s the evidence that’s come from a number of the youth workers who worked under your authority within Don Dale Detention Centre, okay, can you assume that?---Okay.

Now, do you accept that that was the case, that Mr Caldwell did leave those more complex, more difficult decisions to you?---Actually, no, I don’t. I don’t accept that. I think I’ve said before in my previous statement both Mr Caldwell and I worked very hard in the centre. He was always – made himself available to me and I would consult with him when we had these instances.

Would he always acquiesce to your point of view?---Not always but we would certainly have a discussion about what of the issues that we had. It wasn’t a black-and-white case. We still had to discuss it.

You see, the evidence has come to this Royal Commission about Mr Caldwell simply leaving it and sidelining you to deal with these matters isn’t simply isolated to the evidence before this Commission. Those same youth workers have said it to other investigators in relation to their interviews with the Children’s Commissioner and with, indeed, the PSU, you understand that?---Yes, I do understand it, but - - -

Their perception’s wrong?---I think people’s perceptions might be misunderstood in this case. I made – as I said, I made it very clear that both Mr Caldwell and I worked very hard in that centre. I may have been the face of, you know, as the assistant general manager who was more on the floor, more dealing face to face and that was something I did try to do, but I certainly consulted with Mr Caldwell on these issues, and he certainly made himself available. So I can’t accept that he just shoved me in to deal with these – that’s not how I recall these matters.

Now, in relation to these authorities that you have on the placement, do you agree with me that it would be a far more sensible and auditable approach to achieving an authority to isolate a child for 24 hours to get an approval in writing from the superintendent?---I think that there’s probably a much better system to be put in place in relation to this process, yes.


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COMMISSIONER WHITE: Do you agree that it should be in writing?---I agree that it should be in writing and I further agree that there should be an independent person conduct the review in relation to the authority to hold the person there, and it needs to be signed off by that person. With my correctional experience, that is the processes that we undertake in the system where we have an independent person look at it within a period of time to review the matter to see – to ensure that it’s justified. Unfortunately, we didn’t have the resources to do that in the youth justice space.

May I ask you this question, Mr Sizeland: you’ve had a bit of experience in the adult corrections system - - -?---A lot of experience, yes.

- - - and experience in the youth detention system, do you have an impression that isolation for 24 hours was used more often on young detainees than it is in the adult corrections system and, of course, I’m asking at the time you were there?---That’s actually a difficult – that’s a difficult question to answer on the hop. I think it was certainly a fallback position that had – that was – that a lot of staff would just undertake if someone committed a breach or was misbehaving, there would automatically be a placement. As to whether in the adult system they have a much more robust prisoner misconduct system, again, that’s been resourced and established over a very long period of time though, so it’s quite difficult to answer, but I think it was certainly more of a recognised fallback position in the youth justice space, just go straight to a 24 hour placement, yes.

It was a management tool to manage conduct?---That’s how I saw it, yes, when I started.

Rather than as an extreme position. In other words, it shouldn’t be happening very often that you would need to actually put someone on 24 hour isolation. Would that be a view that was not unreasonable to hold?---I actually share that view. I thought – I didn’t like a lot of the process that I saw when I started. However, it was a – it was quite a difficult situation that we found ourselves in a number of times in relation to the use of the 24 hour placement and/or placements.

Can I ask you this further question then – and you can have some extra minutes, Mr O’Brien – why was it being used as a fallback position?---I think that was – I think we talked about this last time I was here, that there were a lot of very bad habits that had been practiced over the years as – as – as agreed procedures, if that’s one way of putting it. And I think it was just one of those things that had occurred over a long time, and that’s when the new staff started, that’s essentially what they learnt from the older and/or more experienced staff and that may have been the case for why it was common practice for people to use it.

Thanks, Mr O’Brien.

MR O’BRIEN: I want to follow up on one of the Commissioner’s questions in relation to your evidence that it wasn’t a robust system. What you mean by that is, I imagine, that there wasn’t a great deal of concern put into things like documentation,


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rigorous processes, that’s what you mean by it not being robust; is that correct?---That’s one of the areas that I – that I think, where it’s not robust, in relation to the accountability and recording procedures.

And I think even you gave evidence, but I know there has been a great deal of evidence about the very difficult and challenging environment that Don Dale was, at least by 2014, probably earlier but certainly under your tenure there; correct?---It was a tough gig, yes.

You were facing so many different pressures that I imagine that having robust systems was probably down the bottom of the list of things to do; is that the case?---Well, it wasn’t necessarily the case. I could certainly identify the need for a number of these things, but you know, with changing systems and putting – implementing things that actually takes resources and that’s some of the things that I found very lacking on the ground, was appropriate staff at certain levels and trained staff to undertake these functions.

Well, thank you for that. One example of probably a very serious deficiency in terms of the robustness of the system was that it appears to be the case that Superintendent Caldwell was not, in fact, a superintendent at all. Did you come to be aware of that during the course of the evidence in these proceedings?---Are you referring to the fact that he wasn’t given the delegations?

Correct?---I found that out through the – through this – through this process.

He had never actually been delegated the powers of the superintendent under the Youth Justices Act by the Commissioner of Corrective Services. That was the situation that prevailed, I think, for the whole of 2014 until September of 2014 when he was actually formally delegated; correct?

MS BROWNHILL: I object to this questioning in the sense that it seems to be inviting Mr Sizeland to reach a legal conclusion about the effectiveness or otherwise of delegations or appointments or whether those could be effected by something other than a written instrument and those sorts – there are many complex legal issues wrapped up into the question.

COMMISSIONER WHITE: Well, there may be. I don’t think it’s the point of the question, but we will see if we can get what the point is and I accept - - -

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: - - - the intervention - - -

MR O’BRIEN: Very well.

COMMISSIONER WHITE: - - - Ms Brownhill, perhaps you could perhaps – using that as an illustration - - -


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MR O’BRIEN: It’s an illustration, an example of, perhaps, some of the deficiencies and failures, even at a very significant level that were occurring; correct?---That’s the evidence that’s been given. It’s very difficult to dispute that.

And I want to suggest to you that there was really a paucity, an absence if you like, or a lack of concern related to the rules governing the use of isolation in and around August of 2014; would you agree with that?---Actually, no, I wouldn’t agree with that.

And that – the – I mean, the person – just to illustrate that point a little bit further and perhaps just ..... I mean, the person that’s meant to be doing the placement doesn’t have the actual power to do it, it appears, you are not getting written authority from that person to make the placement, doesn’t that evidence an absence of real concern over the rigour and import of these laws which are going to lock a child away from others for 24 hours of a day?---I think that’s the case. That is correct, what the counsel is saying. However, that was always the case. It certainly wasn’t any different from August 2014 to any previous time. The processes that were in place for approvals and placements remained the same as they always had been.

So the situation had been – had prevailed before your time and until that August date at least?---That is my understanding, yes.

Okay. The gassing incident is the main incident on 16 August 2014 that had been some focus in this Royal Commission, and – sorry, 21st of – thank you very much, the 21st was the gassing incident of August 2014, and you know that the Children’s Commissioner did a report in relation to that incident and the trigger events for that incident; correct?---That’s correct, yes.

And included in that investigation were these very lengthy periods of isolation for a number of the detainees in the BMU. You understand that to be what they investigated as well as the gassing itself; correct?---That’s – I understand that, yes.

And you were interviewed as part of that process?---Yes.

And a number of your colleagues and staff were interviewed as well?---That’s correct.

And during that interview – during those interviews, one of the shift superintendents who’s unfortunately not named in the Children’s Commissioner report – and this is at page 32 of the report of August 2015 if you want to look at it – but what the shift supervisor said was that he thought that you had the authority to do 24 hour placements. Did you become aware that that’s what the shift superintendent, or one of the shift superintendents thought your powers to involve?---Actually, no, I’m not aware of that, no.


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Okay. And the shift – the Children’s Commissioner also was reasonably critical – perhaps we can bring up page 32 point – at about .8 of that. I note the time, Commissioner.

COMMISSIONER WHITE: Yes. I’m hoping that you didn’t have too much more to go.

MR O’BRIEN: I do. I’ve been given 20 minutes and I only started shortly before 1.

COMMISSIONER WHITE: I think a little earlier than that, Mr O’Brien.

MR O’BRIEN: You gave me a few minutes, I think, so - - -

COMMISSIONER WHITE: I did, but time flies when you’re standing up there.

MR O’BRIEN: I know, but these are important issues, I’m sure, Commissioner.

COMMISSIONER WHITE: Yes. Well, how are we travelling?

MR CALLAGHAN: I don’t wish to inconvenience Mr Sizeland, but it’s as convenient to take the lunch break now .....

COMMISSIONER WHITE: I think so. If we sit on everyone gets a bit cranky. The brain works better when we’ve had lunch. Thank you. Mr Sizeland, I’m sorry, we will – we – because it’s not going to be five or 10 minutes, we will need to ask you - - -?---Okay.

- - - to come back at 2. We will resume at 2 o’clock?---No worries.

Thank you.

ADJOURNED [1.07 pm]

RESUMED [2.16 pm]


MR O’BRIEN: Thank you, Commissioners.

So I was asking you about the Children’s Commissioner report, you might recall, in relation to the gassing incident and the preceding events triggering that incident?---Yes, I recall.


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And there it is on the screen. Can we go to page 32, please. I want to take you to that comment that was made by one of the shift supervisors. At the top of that page, about point 1 of the page, the first paragraph, the Commissioner, the Children’s Commissioner has recorded:

It became evident from these interviews with the shift supervisors that not all of them were aware who could authorise this type of placement.

And they’re talking about the 24 hour and 72 hour placement, you see?---Yes, I see that.

Continuing:

One shift supervisor told investigators that the assistant general manager –

that’s you, correct?---Yes.

Continuing:

…could approve a 24 hour placement, while the Minister needed to approve a 72 hour place.

That’s obviously wrong, isn’t it?---Yes, that’s incorrect.

That’s a shift supervisor with an incorrect understanding of the law as expressed to the Children’s Commissioner; correct?---That’s how it appears to be read, yes.

Now, if that time, in August of 2014, the shift supervisor was of the understanding that you could authorise a 24 hour placement, doesn’t seem much of a stretch that Dylan Voller might have thought that you had the power to do that type of placement, does it?

MS BROWNHILL: I object to the question. I have difficulty understanding the relevance of this witness’s understanding of what Mr Voller understood about the law in relation to 24 and 72 hour placements.

COMMISSIONER WHITE: Well, I imagine, Mr O’Brien, you’re probably going to move on to the – the relevant question out of this.

MR O’BRIEN: Yes, I will.

COMMISSIONER WHITE: We will see, Ms Brownhill.

MR O’BRIEN: You see, I suggest to you that one of the reasons why the shift supervisor thought that you could authorise 24-hour placements is that you were telling children, like my client, “You’re on 24-hour placement” and having them


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carted down into the BMU, that was the situation, wasn’t it?---Actually no, that was not the situation.

Well, that would explain why a shift supervisor would say to the Children’s Commissioner, “I thought Sizeland had power to do that”, wouldn’t it?---I couldn’t explain why a shift supervisor would say that.

Further on that page, the Children’s Commissioner also comments about the way in which the 24-hour placements were dealt with, and the second last paragraph we see that the Children’s Commissioner has said:

It became evident from interviews with staff that 24-hour placements were considered by most to mean that the young person remained on the placement for the entire 24 hour period, regardless of improved behaviour. The assistant general manager advised me that he would allow a 24-hour placement to finish earlier if good behaviour was demonstrated. However, he appeared to be think that this was more of a goodwill gesture as opposed to the expected process.

Do you see her findings there?---I do read that paragraph, yes.

Now, that was the case that almost every instance that Dylan Voller was placed on a 24-hour placement, he did, in fact, spend the full 24 hour in the cells apart from short breaks for showers and telephone calls; that’s right, isn’t it?---It would depend on his behaviour in the morning and if he was required to attend school. In the case of this particular detainee, quite often though his behaviour did not improve on that 24 hour period and he would be kept for the entire time.

In fact, it’s common that his behaviour actually deteriorated whilst he was in the BMU. Is that the case, do you agree with that?---I’ve dealt with him and his behaviour has deteriorated on a number of occasions, in a number of scenarios, yes.

Really in terms of the efficacy or effectiveness of the placement in the BMU, it wasn’t particularly helpful for you or the child, was it?---In some instances I would agree it wasn’t helpful.

Can I suggest in most instances it was ineffectual?---It was effectual in a number of areas for the good order of the centre. It was effectual to maintain control and security of the centre. However, in a number of cases, I don’t believe that it was helpful for the behaviour of some detainees.

In relation to 16 August 2014 when Mr Voller complains he was put in for 24 hours and then told he was going to be on for 72 hours or close enough to straightaway, you know the incident I am talking about?---I have read his statement. I know the incident that he’s referring to, yes.

You’ve disagreed that you said, “Alright, you’re on for 72”, you’ve disagreed with that, haven’t you?---I completely disagree with that.


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Okay. What we do know from that incident is within five hours of him being placed on the 24-hour placement, the Commissioner had authorised 72 hours, three days. That’s the case, isn’t it?---That might have been a result of an incident that occurred once he was in the BMU. I believe that to be the case, yes.

So there was no opportunity for him to prove himself within the 24 hours because the Commissioner had said put him in for three days?---When - - -

Correct?---The incident, put in context, was that when I went to speak to detainee Voller he spat directly in my face and I walked out. That was where I proved the line in the sand was sought for Mr Caldwell for a 72-hour placement.

You so asked Caldwell, Caldwell asked the Commissioner presumably; is that right?---That’s my understanding of the processes.

Okay. Do you know if that was done by paperwork or by telephone?---I can’t answer that, I don’t know.

I suggest to you it was done by telephone call and there was documentation from the Commissioner to Caldwell?---I couldn’t answer that.

Is that a possibility?---I couldn’t answer that.

Did you ever see any paperwork?---That would be handled by the superintendent.

Thank you?---I did not see that.

You see, the point is then once he spat in your face, you determine that you were going to ask Caldwell to ask the Commissioner for 72 hours; correct?---I reported to Mr Caldwell, Mr Caldwell took his action, I did a report and reported it to the police.

I will come back to the question, if I may. Once he spat at you, you determined that he was going to be in there – you would determine that you would go to Caldwell and ask for three days from the Commissioner; correct?---I can’t recall but I did report it to Mr Caldwell.

You can’t recall if you asked for him to be in for three days?---I cannot recall, no.

But that was the effect of what happened?---That would be the result of what happened, yes.

And - - -

COMMISSIONER WHITE: Can I just ask this, Mr Sizeland: you said you had a really good working relationship with Mr Caldwell?---Yes, I worked closely with Mr Caldwell.


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And discussed many things with him?---Yes.

Presumably you might have discussed with him what the appropriate response to this assault on you by Mr Voller was?---Yes, yes, that’s more than likely, but I just cannot exactly recall the conversation. I was probably a bit taken aback at the time. I reported it to him. He may have very well said to me, “Look, I will apply for a 72-hour placement”, and I’ve gone off and obviously cleaned myself up and, as I said, completed an incident report on the matter.

MR O’BRIEN: And the effect of that decision by the Commissioner was always going to be, no matter how he behaved, if the improved his behaviour or if it deteriorated, he would be there for 72 hours for the full three days. That was the effect of it, wasn’t it?---That would be determined by the Commissioner and the superintendent but I believe that to be true, yes.

Thank you. Can I suggest to you that the obvious problem with that regime is that it offers the child no incentive at all to try and remonstrate good – or demonstrate good behaviour to the staff if they know they’re straight in there for three days, no matter how they behave; do you get that?---Actually - - -

MS BROWNHILL: I object to the question. That wasn’t the evidence. The evidence was not given that no matter how they behaved they would be on a 72-hour placement.

COMMISSIONER WHITE: Well, perhaps if you just modify the question a little bit - - -

MR O’BRIEN: Certainly.

COMMISSIONER WHITE: - - - Mr O’Brien to accommodate the facts as they’re in the evidence.


The fact that the child being placed on a 72-hour placement was relayed to the child; correct?---I believe so but I don’t know by who.

And the child wasn’t given an opportunity to be heard in relation to that, were they? There was no sort of disciplinary hearing or embarkation on, “What do you think about that?”, or, “What’s your view about that?”?---That wasn’t part of the process, no.

No. Do you understand that section 156 of the Youth Justices Act requires the child be given the opportunity to be heard in relation to – in relation to disciplinary proceedings?---No, I was not aware of that.


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Right. So that would explain why that was never an option for a child when they were placed on 24 hours or 27 hours, correct, you weren’t aware of it, didn’t happen?---Well, I did actually quite often speak to young detainees I put on 24-hour placement and I had at times recommended that they immediately come out. That had occurred in the past.

But there was no formal process by which this method that they could have an opportunity to be heard about the decision, was there?---And I would agree with that and that’s one of the issues that I raised before in relation to there being a robust process.

That was another failing which demonstrated an absence of a robust process?---I would agree with that, yes.

Thank you, Mr Sizeland. Now, look, just while we’re on this page, let’s have a look at what – I don’t think it’s uncontroversial evidence in this proceedings but you might disagree, when asked to describe the BMU at interview the Children’s Commissioner writes on this same page, 32, about point 6:

One shift supervisor stated it was dark, dingy, repressive, very hot with no air-conditioning, inhumane as far as water goes inappropriate for today’s thinking and mindset.

Do you see that?---Yes, I can read that.

That’s a shift supervisor on your staff with those comments about the place; do you agree with them?---Yes, I do agree with them.

COMMISSIONER WHITE: I think Mr Sizeland might have given that evidence - - -

MR O’BRIEN: Thank you.

COMMISSIONER WHITE: - - - when he was here previously, Mr Voller.

MR O’BRIEN: O’Brien. For Mr Voller.

COMMISSIONER WHITE: Mr O’Brien. Yes. I’m over-identifying, aren’t I? My apologies.

MR O’BRIEN: No. Not at all.

You were aware – I want to suggest to you that keeping children in those conditions for stretches of up to 24 hours and up to 72 hours is just inhumane; what do you say to that?---I would say it’s – I wouldn’t use the word “inhumane”. I would say it was a very, very - - -


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Completely inappropriate?---Well, in context, I don’t think it was completely inappropriate.

It’s all you had?---It’s all we had, and it put us in this very difficult situation in the centre.

Alright. I just want to draw on that little bit. We know from other youth workers who have variously said that they were inadequately trained and you shared that view?---That’s correct.

We know also that the conditions and facilities at Don Dale were inappropriate and they’ve been described as inhumane; you would agree with that?---I would agree with that, yes.

You were dealing with difficult detainees in terms of behavioural management; correct?---I was dealing with some very extreme situations, I’ll agree with that.

And you were dealing with also a number of security breaches at the same time?---There was a very broad range of issues we were dealing with, yes.

Now, your background was in the IAT, and I think you were a commander in the immediate action team at one stage for Corrective Services; correct?---Amongst other roles I’ve undertaken, that’s correct.

Thank you. And that was obviously in the adult prison environment?---That is correct, yes.

And you also had some prowess in boxing, cage fighting, kickboxing, correct?---Boxing.

Boxing. You were involved in cage fighting?---And not a very good one too.

Thank you?---No, I’ve – sorry, from my personal thing, no, I’ve never been a cage fighter. I’ve refereed as a – an official in a lot of combat sports events but I’ve never been a cage fighter.

Thank you. And we know that a large number of your staff were involved in martial arts and cage fighting and boxing, different varieties of fighting; correct?---There were a number of staff that were involved in combat sports probably the easiest way to sum it up.

Don’t think for a moment I’m disparaging that type of sport, I’m not, but what I’m going to suggest to you it was those type of employees who were either drawn to the place or selected for the place; correct?---I wouldn’t agree with that. It’s difficult to say why people apply for a job. I think there’s probably a lot of networking that occurred with a number of staff who were already employed in the centre, obviously people who know people encourage people to apply for jobs. So it was – it’s


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probably one of those situations where people just network, speak to each other and that’s why people end up applying for positions.

When the night of 24 August came about, you knew that that was a pretty critical type of incident when you were called on shift; correct?---Was that 21 August?

21 August, yes?---The interest, yes, that’s correct.

The gassing accident?---Yes, gassing incident. Yes.

You’ve said in an affidavit which was involved in other court proceedings here in the Northern Territory that you requested the assistance of both Mr Zamolo and Mr Kelleher to come with you to the detention centre?---That is correct, yes.

And you’ve said that the reason that you selected those two was because you could trust them and they had a good rapport with staff; is that right?---I believed I could trust them. They had a good rapport with the detainees. In Mr Kelleher’s case, he had been instrumental in defusing a couple of serious situations that we had in relation to rooftop incidents and serious damage and assault towards staff. He managed to do so verbally without any use of force. His rapport with the kids I thought would be helpful in this particular instance. That’s the reason I asked him to come along.

You knew that both of them had never been involved in a situation quite like the one that presented you and others on 21 August?---I think it would be fair to say that probably much – pretty much everyone in the centre hadn’t been confronted with a situation like that before.

And both of those officers have given evidence that they feel now that they were inadequately trained to deal with the complexity of work within the Don Dale environment generally?---I would agree with that and - - -

You agree with that at the time?---And that statement goes for a lot of the staff working there.

So when you’re dealing with a highly charged environment like that presented you with 21 ugh a, they were obviously ill-equipped to deal with that situation too; cricket?---I would agree with that, yes.

I’m not suggesting they’re the only ones there, for a moment, you understand that, don’t you?---Yep.

So here we have the very difficult environment you’re working in, the inadequacy of the staff that you’re working with, the – your background in IAT, amongst other things, and a whole number of workers who’ve really seem to have a real significant interest in fighting, for want of a more broader term; correct?---There wouldn’t be that many staff there that would be combat fighters.


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At least eight, there was at least eight?---On that particular night on that incident?

No, no, generally speaking?---Generally speaking, there may have been half a dozen. I would have to literally sit down and work out who’s who, but having an interest in combat sport really didn’t affect the way a lot of the staff conducted themselves in the workplace.

When were you appointed as acting general manager of Don Dale?---In February 2014.

Yes, so – and by that stage, you on your own evidence, the place was pretty chaotic, wasn’t it?---Yeah, chaotic is one word I would use to describe it, there’s probably a lot of other words, but we haven’t got much time.

COMMISSIONER WHITE: Well, what other words would you use?---It was unorganised. They weren’t adopting best practice approach in relation to a number of areas. The centre wasn’t secure. The centre didn’t have security equipment. The – as I’ve given in my evidence, the classification and case management processes were lacking. There were no programs – foreseeable programs occurring outside of education. The classification process, which is supposed to work within what you’d believe to be a current model of the Throughcare model wasn’t occurring. And these were a lot of the things I put energy into. You need to ask yourself when you’re dealing with a classification process or a case management process, “Well, what next?”. If you’re going to classify someone down to an open security rating what next? What’s the plan? What’s the future hold? What programs or processes are you going to put in place to assist that person with the continuity of care through to the community in relation to job readiness, in relation to where they’re going to live, do they have a driver’s licence, do they have care on the outside. These are a lot of questions that no one had actually posed at a case management meeting before and these, in my previous life as the coordinator ..... senior management, was a very large part of my previous working life and, again, I was taken aback at the lack of progress in this space. When I say it was disorganised and understaffed in a lot of areas, it was actually very holistically disorganised and understaffed and, as I said, it didn’t have the same progress that I believe we had been putting into the adult system as I previously said. Sorry, that was a bit of a mouthful.

MR O’BRIEN: No, no. I appreciate it. I want to ask you a question and this is not meant to embarrass you or even in any way criticise you, I want to suggest that, do you think in hindsight, looking back at it now, that your appointment in February of 2014 with your background in IAT and prison security was a really, really – documented in an appointment – as an appointment a person can do, that there was an increased focus on security within the youth detention centre?---I would actually like to say to that that in the – probably the first six months of my employment at Don Dale, I put in a lot of changes in relation to shift patterns, in relation to staff attending the workplace, in relation to the classification, case management process that I’ve just spoke about, and right through to dealing and addressing a lot of staffing issues that I thought were quite pertinent to the running of the centre,


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commenced programs in relation to outside activities and also internal stay safe strong programs for substance abuse and we did so on a structured day basis, so it wouldn’t affect the education basis. I would actually go as far as to say I probably put more in place in the first six months that any of my predecessors in that time. It was only until the major break-out that we had the flaws in the centre were exposed and this very high risk behaviour with a number of other older detainees started occurring that we went to a crisis management period and there was a very heavy focus on security, yes, once that was exposed.

So - - -?---Can I just qualify that a little bit further. Being mindful that those boys who had escaped, I had case managed each one of them into the low security area and given opportunities to all those boys to progress, and have more access to activities, more access to out of cell time. Even though they had escaped from court previously and I had had some major issues with them in the past, I still was of the firm belief that the secure fence line was secure so I could safely have them in that area. These are the progressive moves I was trying to take and, unfortunately, it was very disastrous when they commenced this very reckless activity.

When you were asked a question a moment ago by the Commissioner in relation to describing the place at the time of your appointment and at the time, in 2014, you said that a number of features – but you seemed to focus, if I can suggest to you, on issues of security, concerns about security?---I’m sorry, I just thought I spoke about the case management and classification process.

COMMISSIONER WHITE: No, I think it was the answer before that. Is that what you’re referring to, Mr O’Brien - - -

MR O’BRIEN: Yes, your Honour.

COMMISSIONER WHITE: - - - when I asked for some other ways you would describe than chaotic.

THE WITNESS: When I said chaotic, it was a – yes.

COMMISSIONER WHITE: I think that – is that answer correct, Mr O’Brien?

MR O’BRIEN: Yes. Correct.

THE WITNESS: Okay. Failing infrastructure, failing security, failing a range of things. Yes.


MR O’BRIEN: I want to suggest that at least at some stage, either before or during your tenure and leading up to 21 August 2014, there was this enormous focus on security and it really came at the expense of doing anything else, for example, rehabilitation programs and programs generally fell well away from the objectives of


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the running of the centre; do you accept that?---Actually, I completely disagree with it. I’ve just stated the changes that we made within the first six months. It wasn’t until we hit the crisis management periods that that became a very strong focus of trying to keep people, you know, secure within the centre.

One of the things that you said in relation to that same answer that I referred you to a moment ago that you gave the Commissioner was that there were no programs outside of education. That didn’t exchange, did it?---Yes, it did.

There were programs that were organised by you and unfunded, correct?---They were programmed organised by myself.

And unfunded?---They were unfunded, but they still commenced - - -

So apart from what - - -?--- - - - the children still undertook those programs.

Apart from what you did, management, other than you, did nothing, did they?---Well, I thought I was management.

Other than you?---No, I would pose these ideas to the superintendent and ..... ED and quite often you know, I received a lot of support. I may have been the driver behind a lot of it, but, yeah, they certainly were supportive. I can’t say otherwise. I wouldn’t have been approved to do these things unless I had the approval of the superintendent.

They didn’t fund programs that you sought to run, did they?---No, but they approved for the payment and they - - -

I want to suggest to you that in 2014 under your tenure, Mr Sizeland, contrary to your evidence, that there was an overemphasis, a focus almost only on developing a child’s behaviour and encouraging compliance by locking down children and by isolating children; what do you say to that?---No, sorry, I disagree with it.

Now, I want to ask you, did you ever at any stage get any training on the prolonged impact of isolation on children?---No, I did not.

Have you come to realise now that there can be significant traumatic effects of isolating children for long periods of time?---I hadn’t received any training in it, but - - -

Isn’t it a matter of common sense?---It’s – it would be a matter of common sense, yes.

Especially in the conditions such as they were in the BMU?---Hard to disagree with that.

I want to suggest really, sir, to the extent that you were locking these cis down, you really had no choice, there was no programs, inadequate educational programs, there


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was inadequate facilities otherwise, you had no choice, you just had to lock them down as you did?---There was nowhere else in the centre that we could securely hold those detainees in and actually guarantee that we could maintain the order of the court.

One last area, Mr Sizeland, it’s in relation to the intensive management programs. You know that my client once the 72-hour placement had expired from the 16 – sorry, from 15 August he was then, according to you, placed on an intensive management program?---Yes, that’s correct.

And it’s been said in these proceedings that there’s – that they’re almost formulaic, they’re the same formula, you just exchange the name; do you accept that?---They were very close to each other, yes.

There are findings, without taking you directly to them, by the Children’s Commissioner that there was no evidence of any IMP holding Dylan in isolation before 21 August; do you accept that?---Actually, no, I don’t accept that.

You say that there were IMPs in place; is that right?---I’m telling you there were, yes.

There’s no documented evidence of that, do you accept that?---I do accept that, yes.

Is this another failing of the process and illustration of the lack of robust mechanisms within the use of isolation and the processes for it?---I would – I would concur with that, yes.

Because there is absolutely no documentary evidence as to why Dylan Voller was, after three days, held for a further – for a further three days in isolation, is there?---There is no documented evidence, no.

And I want to suggest to you, Mr Sizeland, that the IMP that was dated 21 August was not ever developed or put in place until after the gassing incident when everyone realised what the hell is this kid been in isolation for up to this point without one; correct?---That’s completely incorrect.

And I want to suggest this to you: if you – you’re familiar with the IMP plans, aren’t you?---Yes, I’m familiar with them.

I suggest to you in no paragraph, not one sentence of the IMPs ever allows isolation of a detainee specifically, does it?---I can’t answer, I’m sorry.

Do you want me to show you the IMP that Dylan Voller was on?---Yes.

Can I hand this to the witness.

COMMISSIONER WHITE: Yes, of course.


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MR O’BRIEN: I will do it myself.

COMMISSIONER WHITE: You stay there.

MR O’BRIEN: Here we go. Thank you, Madam Officer.

COMMISSIONER WHITE: Don’t give up that podium.

MR O’BRIEN: I will in one moment.

THE WITNESS: Thank you.

MR O’BRIEN: That’s the IMP dated 21 August 2014?---Yes.

That’s a document that you’re familiar with?---Yes.

You signed a number of them over the course of your employment at Don Dale?---Certainly. Yes.

And, in fact, I think it’s your signature - - -?---It is.

- - - and designation on the last page?---Yes.

Mr Sizeland, you know that the law under the Youth Justices Act allows isolation under certain circumstances; correct?---Yes.

I want to suggest to you that in no sentence in this IMP does it allow you, as the assistant general manager or anyone else, in fact, to isolate a child. Have a look at it?---I believe the – the IMPs come under a Commissioner’s directive that allows for the – for them to be held in a single cell accommodation. That’s my understanding of the - - -

And isolated for three days?--- - - - my understanding of the legislation with the Commissioner’s directives.

We can let others be the judge of it. I might seek that Counsel Assisting tender that, if it’s convenient and we can let others have a look at it?---That’s fine.

Mr Sizeland, I thank you for your time?---Thank you.

COMMISSIONER WHITE: Thank you. Mr Callaghan - - -

MS BROWNHILL: I have a single question.

COMMISSIONER WHITE: Yes. Can we just deal with the exhibit. Ms Brownhill, I assumed you might have a question.


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MS BROWNHILL: Yes.


MR CALLAGHAN: We will make that part of the record. We will mark that and make it an exhibit. I’m just checking that it’s not already part of – well, if the worst thing that happens is we have two copies of it, I will tender this one just to make sure we don’t lose track of it.

COMMISSIONER WHITE: Yes. It hasn’t got a number on it, I suppose.

MR CALLAGHAN: No, this copy does not, which is not to say there isn’t a numbered copy somewhere.

COMMISSIONER WHITE: There are quite a few intensive management plans which were tendered.

MR CALLAGHAN: This is the one dated 21 August 2014. I think that is in evidence somewhere but - - -

COMMISSIONER WHITE: Look, just to keep track of it, we will put it in again.

MR CALLAGHAN: I think there’s no harm in that.


EXHIBIT #289 INTENSIVE MANAGEMENT PLAN OF DYLAN VOLLER

MR CALLAGHAN: Thanks.

COMMISSIONER WHITE: Ms Brownhill.

<CROSS-EXAMINATION BY MS BROWNHILL [2.49 pm]

MS BROWNHILL: Mr Sizeland, you were asked some questions about the number of staff at Don Dale involved in combat sports during your time working at the centre; do you recall that evidence?---Yes, I do.

Are you able to say and you may not be – please say so if you can’t – approximately how many staff were on the books as employees of Don Dale in that period of time?---I’m sorry, I couldn’t answer that question off the top of my head. It was – it was actually quite difficult sometimes to know who or how many staff you had with the amount of casuals that were on the books. I have attended the centre on after-

.ROYAL COMMISSION 19.4.17 P-2521 J. SIZELAND XXN©Commonwealth of Australia MS BROWNHILL

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hours incidences and have been in the situation of introducing myself to staff who I have never met before because they were there on the casual pool and I have never met them on a Monday to Friday shift.

So it’s not possible to estimate, for example, whether staffing numbers were in the 10s, or 50s or 100s?---I doubt very much it would be in the 100s, I’d say you’re looking between possibly 50 to 80 possibly on the books. That’s just – that’s a very, very wild guess.

Thank you---Sorry.

<RE-EXAMINATION BY MR CALLAGHAN [2.50 pm]

MR CALLAGHAN: Mr Sizeland, I just want to take you back to one answer that you gave. It was a long answer that you yourself described as a bit of a mouthful, I think - - -?---Okay.

- - - where you listed a number of problems that were being suffered and I would suggest the essence of your answer reduces to the proposition that the institution was holistically disorganised and understaffed; do you recall that?---Yes.

From your perspective, from where you sat in the organisation, whose responsibility was that?---You would have to say the Commissioner.

Thank you. I have nothing further. May Mr Sizeland be excused.

COMMISSIONER WHITE: Yes. Thanks, Mr Sizeland. You’re released from your summons to appear before the Commission and you’re free to go now. Thank you for your assistance---Okay. Thank you very much. Thank you.


MR CALLAGHAN: I call Derek Tasker.

<DEREK JAMES TASKER, RECALLED AND RESWORN [2.52 pm]


COMMISSIONER WHITE: Thank you Mr Tasker. Would you kindly be seated.

.ROYAL COMMISSION 19.4.17 P-2522 D.J. TASKER FXN©Commonwealth of Australia MR CALLAGHAN

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MR CALLAGHAN: Mr Tasker, may you once again tell the Commission your full name, please?---Derek James Tasker.

You have, of course, appeared here previously, but since then – in addition to the evidence you gave then, you have prepared a statement dated 16 February 2017; is that correct?---The one that I have here is actually 10 February 2017.

I’m sorry, you’re right. The statement relating to Mr Voller is 10 February 2017; is that right?---That’s correct.

Yes. Thank you. I will tender that.

COMMISSIONER WHITE: 290.

EXHIBIT #290 STATEMENT OF DEREK TASKER DATED 10/02/2017

MR CALLAGHAN: Now, I just have a few questions for you. There was an incident involving Mr Voller that occurred on 4 October 2011 and it was an incident that followed a dispute over the use of a Wii, the video game. You know the one that I’m talking about?---Yes, I’m familiar with that.

I’m told – we have some footage of it, I’m told there’s some difficulty with it, I don’t need to play it to you. What I want to ask you this: after that incident, Mr Voller was taken to a room by staff?---That’s correct.

Placed into a room and then on the footage one of the staff can be seen placing something over the window on the door to the room?---They’re actually covers and we have them all – on all of our doors on the Alice Springs Juvenile Detention Centre.

That’s what I wanted to ask you: what is the cover and why is it put there?---That was something that was done prior to me being in charge or anything like – for that period of time. It was just when we moved in there, they had those hatches put in there and if my memory serves me correctly, it was for light at night-time ..... during the day because the light actually would shine in the room.

So was the effect of putting the cover on the room to make it dark inside the room?---We would leave the light on in the room as well.

Well, why put the cover on the door. I’m not following?---If they were on a placement or anything like that, we would just have the light on dimmer but we would also have the cover on there as well.


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The other matter I wanted to ask you about concerned the circumstances in which you were charged with an offence committed against Mr Voller, and to be clear you were ultimately acquitted of that charge; that’s correct?---That’s correct.

That was an offence that was allegedly committed on 9 December 2010 but you were ultimately acquitted of that charge?---In both the Magistrates and the Supreme Court.

Correct. But in the process of the prosecution of that charge, it was at one stage dropped because there were problems with the evidence, but you were later recharged; do you recall that?---Yeah, that was my understanding, yep.

Yes. Tell me, do you know why the charge was dropped at that stage?---I think it was to do – something with the footage, but I can’t recall to be honest with you.

Alright. So some explanation was given to you at the time, do you think?---Of – yeah, if my memory correct, I think it may have been to do with the footage. I’m not 100 per cent sure though.

Can I ask you this: did you know at least it was likely or on the cards that you would be recharged, that the charge would be brought again?---That was actually put to me by my solicitor that the charge may be brought up against me again, yeah.

Right. Were you at court on the day the charge was dropped?---I don’t think I was. I can’t remember to be honest with you. I don’t think I was.

Do you recall that later that day, and take it from me it was the same day, that is the day on which the charge was – was dropped – you drove down the street where Dylan’s mother lived; do you recall that?---I do.

And in paragraph 56 of the statement that’s been tendered today, you provide an account of the reason why you found yourself in that street; is that correct?---That’s correct.

Do you need to take a look at that?---I’m actually having trouble locating it.

Para 56 in the statement of 10 February, statement relating to Mr Voller.

COMMISSIONER WHITE: Perhaps someone can assist Mr Voller.

MS BROWNHILL: We’re happy to offer someone, Commissioner.

MR CALLAGHAN: We will get it on the screen.

MS BROWNHILL: Paragraph 56.

THE WITNESS: Yes, I’ve got that.


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MR CALLAGHAN: You’ve got that now?---Yes.

You say that you were going to check on a house for O’Brien Investments; is that correct?---That’s correct.

Can you give us any more detail about what you were actually doing? What do you mean - - -?---Yes. O’Brien investments had a number of houses in the Lyndavale Drive area and we would randomly do patrol visits to check on those houses and that’s actually what I was doing and I realised that I turned down the wrong street and I was confronted by Joanne Voller and I wanted to remove myself immediately from that situation.

So it was a random patrol being done in the course of business – work; is that what you were doing?---Yeah, .....

COMMISSIONER WHITE: It’s a security company, isn’t it?---That’s correct, ma’am.

Yes?---So we would do random visits of the houses.

MR CALLAGHAN: Yes. So you didn’t know the person in the house concerned?---From memory, I think – a couple of houses that we were doing were vacant. The people were actually interstate.

Right. So there was no one - - -?---No.

And so it wasn’t the case that you were driving along to visit a friend at Lyndavale?---That friend also lives off of Lyndavale Drive and is also a work colleague as well and I was actually going to be going to his place as well.

Who was that?---The work - - -

MS BROWNHILL: Well - - -

COMMISSIONER WHITE: What does it matter?

MS BROWNHILL: Yes.

MR CALLAGHAN: Well, the witness has made inconsistent statements about his reason for going to this particular street on this particular day, and the submission will ultimately be made that it’s a staggering coincidence that he ended up in the very vicinity of the mother - - -

COMMISSIONER WHITE: I really meant - - -


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MR CALLAGHAN: - - - of the man who was going to be the witness, and he has given an inconsistent account of it and I’m exploring the inconsistencies in the account he has given.

COMMISSIONER WHITE: It was the naming of the work colleague and whether that was necessary.

MR CALLAGHAN: Well, whether he exists.

MS BROWNHILL: Well, my concern, obviously, is that this person’s identity, including the proximity of their residence is about to be identified publicly for reasons which may or may not be necessary. There may be another way to pursue the same information that doesn’t disclose that person’s identity publicly.

COMMISSIONER WHITE: Alright. Well, Mr Callaghan, your purposes would be satisfied if Mr Tasker wrote down the name of the work colleague?

MR CALLAGHAN: I will short-circuit it, Commissioner.

COMMISSIONER WHITE: You’re given a piece of paper, you’ll write down the name of the - - -?---Yes, Commissioner.

- - - of the friend that you’re proposing to call on.

MR CALLAGHAN: Yes, your Honour.

COMMISSIONER WHITE: It’s happening. Not quite. Not seeking to inhibit the forensic focus of the questioning, Mr Callaghan. I’m only concerned about the reason that the Solicitor-General raised.

MR CALLAGHAN: Thank you. I’m going to short-circuit it, Mr Tasker, in any event, because you were obviously aware of the proposition that you would be asked about a friend. You didn’t ask me to clarify that question. You knew that you had given a different account to a police officer on a different occasion; is that correct?---Yes. Looking back I probably should have elaborated further on that.

Well, so that everyone knows what we’re talking about, on the day in question you rang the police officer who was responsible for the prosecution; is that correct?---Yeah, that’s true ......

And you told her that you’d made a big mistake?---Yeah.

You said to her that you were driving along to visit a friend up Lyndavale and turned up this street; that’s correct?---And I should have elaborated it further.

There was no mention of any work, any random patrol for O’Brien’s, was there?---Not on the phone call, but looking back I should have mentioned it further.


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And likewise in your statement when you had every opportunity to explain your position in full, around paragraph 56, you made no mention whatsoever of your desire on this occasion to visit a friend, did you?---I didn’t see the need at that time. I was led to believe that I had explained it satisfactorily.

Well, you’ve explained it in different ways on different occasions, that’s the short point, isn’t it?---That’s fair to say.

And as to the fact that it was on the day that this charged was dropped, but may yet have been brought against you again, you happened to be there, you say that’s just a coincidence?---Yes, I do.

That’s all I have.

MR O’BRIEN: Commissioners - - -



MR O’BRIEN: My name is O’Brien, Mr Tasker---Sir.

And I represent Dylan Voller in these proceedings. I would like you to be shown, please, the footage from 9 December 2010. Just one moment. I had lined that up but it seems there might be some problem with that. That footage has been shown in these proceedings earlier and you know the footage that I’m talking about, don’t you?---Yes, I do.

This is the footage where you come into the observation room at Aranda House on 9 December 2010 and ground stabilise Dylan Voller; correct?---That’s correct.

He’s then stripped naked by you and your colleagues, two in number; correct?---That’s correct.

Now, you have said in your statement, which has been tendered today at paragraph 30, that in relation to this particular event, you deny the allegation that you have either choked or grabbed Mr Voller by the neck; do you see that?---Yes, I do.

Well, I want to suggest that that’s simply not true, that you certainly did grab Mr Voller by the neck on that occasion, that you grabbed him by the neck – around the neck with two hands and you spun him onto the ground using that grip; what do you say to that?---I don’t agree with that. I went through the court system and I was found not guilty by the Magistrates Court and the Supreme Court.

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I understand that, Mr Tasker. What I’m suggesting to you, sir, is that the statement that you did not grab Mr Voller by the neck is not true; do you agree with that or do you not?---All I’ve done is to move his head away so that he couldn’t spit on us.

And you did that by grabbing his neck, didn’t you?---No. I’ve just had my hand like that.

Around his neck. You’ve just put your right arm to your throat?---Like that.

To .....?---Like that.

Well, that looks to me to be your right hand upon your throat, neck region; am I wrong?---I don’t agree with that.

COMMISSIONER WHITE: How would you describe it in words, rather than – since we need to put it on the transcript, Mr Tasker, and - - -?---Yes, all I’ve done - - -

- - - people who read it won’t know what you’re doing?---Grabbed him like that, and moved like that.

So you put a thumb on - - -?---Just like that and - - -

- - - his jaw and .....?---Just to move his face away to stop him from spitting.

MR O’BRIEN: Your other hand, Mr Tasker, was around the back of his neck, wasn’t it?---To support him.

Around the back of his neck?---I just said around the back like that only to support him.

You’ve grabbed the back of his neck with your left hand, haven’t you?---As I said, I’ve just had it there without force to support him.

Alright. We’ll reflect for a moment on that comment that you’ve given in the statement to these Commissioners. You deny the allegation that you have either choked or grabbed Mr Voller, it’s not correct, is it, you did grab him by the neck?---All I’ve done is to stop him from spitting on us and to hold him safely to put him down on the ground. He was actually on a mattress.

Very well. I want to suggest to you that that statement – that form of words in your statement in these proceedings is clearly false and if you – if we had the video footage I would demonstrate to you using that?---I don’t agree with that, and as I’ve already stated I was found not guilty in the Magistrates Court and the Supreme Court.


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COMMISSIONER WHITE: That’s not the question you’re being asked though. It’s not about the legal quality of what you did. It’s the actual fact of what occurred?---All I’ve done is to support his head, ma’am, and to stop him from assaulting us.

MR O’BRIEN: The paragraph goes on, paragraph number 30, to say:

And the suggestion that I had done the same thing to any other detainee and I did so a lot also is denied.

Do you see that?---Which paragraph?

The same paragraph. It’s the next set of words?---I’ve only been spat on by a couple of detainees, so that didn’t happen.

I want to suggest to you that since Mr Voller has given his evidence and his statement to these proceedings there have been two other witnesses who have come forward, former child detainees, AX and AV, both of whom have said you grabbed them round the neck?---I deny that.

You’ve denied it, but that seems to be a modus operandi of yours, according to this set of evidence, doesn’t it?---No, it doesn’t. I disagree with that.

I want to talk to you about the proceedings involving yourself and police. You were – you work closely with Mr Barrie Clee, didn’t you?---Yeah, when he come down from Darwin, yeah.

Prior to his appointment at Aranda House as the OIC you were acting in the position; corrected?---That’s correct.

For a period of about 10 months?---I think it was a bit longer than that actually.

Very well?---Yeah.

But immediately before him you’re acting in the position, you didn’t apply for it, he did, he got the job; correct?---No, I didn’t apply for it.

And you had a close working relationship with him?---I would like to think so.

And you were friendly with him on friendly terms?---I had a working relationship. We didn’t associate outside of working hours or anything like that.

Now, can I just show the annexure BC1. This is an incident report in relation to the incident on 9 December 2010. It’s an annex to Mr Barrie Clee’s statement. If we go to – I think it’s the second page, please, do you recognise this incident report? It was tendered in proceedings against - - -?---I can recall seeing that before. That’s correct, yeah.


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Thank you. Now, the incident reports – now, as I understand it from your evidence before the learned magistrate trying the case, you got a call from Mr Clee to come in to Aranda House after Mr Voller had been placed at risk; is that the case?---I think it was. We were called back many times to deal with situations and it may have been that I may have called him or he may have called me.

If I suggested to you that the evidence seems to suggest in those proceedings that you were called back after Mr Voller had been placed at risk, would you agree with that?---I remember getting called back there because of his behaviour and so forth.

Yes?---Yeah.

So I’m not suggesting you were there at this time but you see at the top of the page:

2020 Dylan Voller requested telephone and wants to call police and press charges against OIC Barrie Clee.

Get that?---Yeah, 2020.

At 20 minutes past 8 in the evening?---Yes, I am with you.

At 2035 it appears Mr Voller had a call to the police, and did, in fact, make a call to the police; do you see that?---Yeah.

The next paragraph is at 2040, so 20 minutes to 9 in the evening:

Dylan Voller makes a threat to kill himself. Is heard by Tasker and Bryce.

I want to suggest to you that you, in fact, were not there at the time; can you respond, do you know?---I can’t recall.

Very well. And then at 2050 the incident report continues that he was asked to strip and by that stage you were there and the video records what happens; correct?---Yeah, I can remember Barrie Clee standing at the door there with the at risk attire.

Now, you’re aware that the Children’s Commissioner began investigating this matter at an early time.

MS BROWNHILL: We might need to be a bit more precise about things.

THE WITNESS: I’m not sure when they started.

MR O’BRIEN: But you were aware that there was a Children’s Commissioner investigation that commenced some time afterwards?---Yeah, I don’t know when exactly it was, but I am aware of it, yes.


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Very well. And you’re aware also that the police began investigating your conduct in relation to what had happened on 9 December as well? Obviously you became aware of that fairly soon afterwards?---I was interviewed by the Children’s Commission and - - -

They referred to - - -?--- - - - a time after that police attended the scene and asked if we could come and provide a statement. I don’t know the exact dates and so forth, but I can recall police coming to the centre.

As it transpires the Children’s Commissioner referred the matter to the police; would you agree with that?---Yeah.

Okay. And you know, do you, that both the Children’s Commissioner and the police had enormous difficulty getting their hands on an accessing the CCTV footage for 9 December 2010?---I wasn’t a part of that, but I’m not aware that they had difficulties with the footage. I know that there was problems downloading the footage from Aranda House and there was techs that were called in from time to time to try and download that footage – well, footage.

That – well, I won’t press you if you’re not aware of the difficulties that they had, but you were aware that – that over a series of months the police and the Children’s Commissioner were chasing the footage and were unable to access it; is that the state of your knowledge of that?---On – look, I can’t recall that happening to be honest with you. I can’t recall them talking to me, asking for the footage or anything like that.

No, that’s fair enough because, in fact, they were asking Mr Barrie Clee for the footage for 9 December 2010; were you aware of that?---It possibly could have been brought to my attention but - - -

Again, you work closely with him. If they’re chasing footage for an incident that you’re being investigated by two separate agencies, it seems common sense that he would mention it to you?---Yeah, well - - -

Nothing wrong with that?---It was my understanding that police attended the centre and looked at the footage prior to the Children’s Commissioner as well.

And you’ve said in - - -

COMMISSIONER WHITE: Sorry, Mr O’Brien, I wanted to clarify something there.

Is it your recollection that the police investigating this matter actually came to the Aranda House and had a look at the footage?---Yes, ma’am.

.....?---I can remember – I can remember coming around that time of the year and it wasn’t just that, there was other footage as well that they had a look at, yeah.


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In situ. They saw – so it was able to be downloaded at Aranda House so they could have a look at it?---They could replay it back on the computer but I know that there was difficulties and still today in obtaining CCTV footage.

MR O’BRIEN: I just want to suggest to you, in fairness, you can’t be sure that the police saw the footage before it was provided to them?---I can remember being in the office at Aranda House and police standing there and they’re reviewing footage.

Was it the footage of you ground stabilising Dylan Voller on 9 December 2010. You don’t know?---I can’t be 100 per cent sure.

Thank you.

COMMISSIONER WHITE: When you say 100 per cent sure, hardly anyone can be 100 per cent sure of anything, so how sure are you or does that mean to say you have really got no idea?---I can recall them reviewing the footage and so forth.

The particular footage that we’re talking about?---But I can’t specifically recall them viewing that particular footage.

So they looked at footage but you don’t know what?---Yes. There was other incidents there for property damage and so forth.

Thank you.

MR O’BRIEN: Now, you’ve made reference in the course of – just before I go on from that, obviously the person who’s – would be the appropriate officer to deal with the provision of footage to the police, in relation to that incident, was Barrie Clee; correct?---That would be fair to say, although now in my current role I’m tasked the job of obtaining footage for police.

Okay. But at that time it was Barrie Clee; right?---Yeah.

And were you aware that there had been a report to police, apparently, about Mr Clee by Mr Voller on that same day, 9 December 2010. Were you aware of that at any stage?---I’m – what type of report ......

A report to police in relation to an assault by Barrie Clee upon Dylan Voller?---I can’t recall.

Now, as it transpired you were indeed acquitted by a magistrate on 5 December 2014, the learned magistrate was Magistrate Trigg; correct?---That’s correct.

And then on the – the Crown appealed that decision, didn’t they?---Yes, they did.

On 1 December that appeal was rejected and that decision was by Barr J; correct?---That’s correct. I didn’t have to attend the Supreme Court.


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Okay?---But I was actually advised by my lawyer.

Now, you were obviously aware that those proceedings needed to deal with the matters on the criminal standard as to whether you were guilty or not guilty beyond any reasonable doubt; correct?---Mmm.

And notwithstanding that, once the proceedings had been dealt with and the judgments had been executed by both Magistrate Trigg and by Barr J, the Children’s Commissioner later released a report on 12 February 2015 in relation to the incident; correct? You’re aware of that?---I can’t recall that.

Okay. Well, I’m suggesting to you, you can assume for present purposes, that the Children’s Commissioner report came after the judgments by Barr J and by Magistrate Trigg, do you accept that?---I can’t recall.

Okay. And what the Children’s Commissioner concluded – this is on page 35 (5) of the Children’s Commissioner’s report dated 12 February 2015. If we can have that up on the screen to assist you. And just at about point 4, just above that box:

I have reflected –

this is the Children’s Commissioner’s words:

I have reflected on the CCTV footage, the departmental guidelines, the evidence of NTDCS personnel and the expert report. It’s my considered opinion that the incident depicted on the CCTV footage involved an unwarranted excessive and dangerous use of force against Dylan.

Do you see that?---Yes, I do.

So notwithstanding your acquittals at the criminal standard, the Children’s Commissioner made those damning findings against you; you’re aware of that?---No, I wasn’t.

COMMISSIONER WHITE: Was that not ever drawn to your attention by your superiors at all, Mr Tasker?---The first time I’ve seen it. I’ve not seen it before.

Have you not seen that before?---No.

No one has ever told you about it within the Department?---No.

MR O’BRIEN: Now, you still continue to be employed by the Department of Corrective Services in Youth Justice area?---That’s correct.

But you’ve never been shown this report or the findings that were made?---I have no knowledge of that whatsoever.


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They should have brought that to your attention, surely?---I can’t answer for the powers to be.

Would you want to know if these damning findings are made against you after your acquittal in the criminal courts?---I really can’t answer that. I’ve got no comment to make about that.

You were aware of Mr Martin Unger – U-n-g-e-r – Martin Unger, he’s a PART trainer – was at least?---I think he’s the gentleman that runs the PART course.

Right?---I think his name’s Martin, yeah.

That may well be correct because the Children’s Commissioner commissioned Mr Unger – U-n-g-e-r – to examine this very footage; you understand that?---I’m not aware of it.

Okay. And what Mr Unger said at page 34 – so the page prior to this – was that:

In relation to the restraint techniques observed, none of the techniques were consistent –

sorry, we will have it on the screen for you so you can see it:

None of the –

it’s underlined, do you see that:

None of the techniques were consistent with any PART techniques or principles.

You accept that?---We were never trained on how to deal with spit.

But were you trained in PART?---Yeah, but it never told you how to deal with spitting.

Right. You’ve been dealing, by that stage, with Mr Voller for quite some time though, hadn’t you?---The only time that I was spat on is when – and other officers, is when Dylan Voller came onto the scene.

Well, he’s been in detention since 11 years of age and by this stage he was 13. He had been almost entirely in detention for those three years; you understand that?---Yep.

And so you had been dealing with a young child who had complex behavioural problems; agreed?---Yes.

Who was very difficult to control; agreed?---Yeah, I agree.


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He needed to be, according to your own account, ground stabilised; correct? Sorry, is that correct or not?---When you say ground – are you referring to this incident?

I withdraw it. It’s clumsy?---I’m not quite sure where you’re leading to.

No. I withdraw it. I withdraw it. He had been placed at risk a number of times?---Many times.

Yes. You’re aware that he was someone who spat at authority figures such as yourself, correct?---Yes.

But you had never been taught how to deal with him, is that your evidence?---Yes.

You had never been taught how to deal with a child with problems as complex as him; is that right?---That’s right.

That is woeful mismanagement, isn’t it, of you?---I wouldn’t agree with that. He was just an extremely difficult child to deal with.

And you did what you had to do, is that your evidence?---And we just did the best we could to keep him safe at all times.

Without any training or any sort of guidance?---Apart from the PART training.

You see what Mr Unger goes on to say, he says:

The interventions were abhorrent and represented a greater level of danger to the young person than to the staff.

Do you see that?---Yep.

I want to suggest to you that that’s exactly right. The expert is spot on. What do you say?---I don’t agree with that. I refer you back to the Magistrates Court and the Supreme Court. They’re also experts as well.

Which dealt with the matter on a criminal standard.

MS BROWNHILL: I object to that.

MR O’BRIEN: I withdraw it. I withdraw it.

MS BROWNHILL: And I rise to say that I haven’t interrupted the questioning and my learned friend has asked it and made reference to findings of the Children’s Commissioner and so on, but the Commissioner should be mindful that the decision, particularly by the Supreme Court, about the proceedings and about the appeal didn’t involve simply a question of whether this was unlawful or lawful conduct. There’s an assessment at paragraph 27 of the reasons which expresses the judge’s findings


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about the manner in which Mr Voller was taken hold of by Mr Tasker and expressed things like that the manoeuvre was reasonably skilful - - -

COMMISSIONER WHITE: ..... Mr O’Brien.

MR O’BRIEN: I’m just looking at the document.

MS BROWNHILL: - - - executed, and that force was used but the force did not appear to be excessive. It probably did not require significant force for the respondent to turn Mr Voller’s head to one side and then unbalance him and put him on the ground and so on. So what I rise to make the observation of is that the Commission should be careful about hearing what other people concluded without also appreciating that the Supreme Court itself reached various conclusions about - - -

COMMISSIONER WHITE: Yes. I think – yes. I think that’s apparent without even to the Supreme Court, because the Northern Territory, in fact, put in submissions to the Children’s Commissioner with respect to these matters.

MS BROWNHILL: It certainly responded in relation to the findings and expressed its views about what was done.

COMMISSIONER WHITE: Right.

MS BROWNHILL: And so there are a variety of views and none should be taken to be accepted as - - -

COMMISSIONER WHITE: Perhaps what’s the important thing is that Mr Unger is the – a trainer in the PART technique and that’s what we’re actually engaged in, whether this is an appropriate use of that technique.

MS BROWNHILL: That may or may not be the question for the Commission, whether this is an appropriate use of a particular technique.

COMMISSIONER WHITE: That’s what’s happening here.

MS BROWNHILL: Observations made by Mr Unger like expressing in qualitative language things like that it was abhorrent is an observation he has made, which in my submission isn’t part of his expertise. I don’t want to get tangled up now in making a submission about where we go with all of this material but I wanted to have it on the record that it’s being understood that the Supreme Court amongst others has expressed a view about what occurred, including in relation to the excessive or not excessive nature of the force used.

COMMISSIONER WHITE: Yes. I don’t think we’re in doubt about those views of the Supreme Court or the Magistrate. Thank you.


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MS BROWNHILL: Thank you.

COMMISSIONER WHITE: Mr O’Brien.


And in fairness to you, Mr Tasker, the decision of the Supreme Court in your case has been annexed to your statement, hasn’t it? It’s in evidence now, isn’t it?---Yes.

Yes. So in the course of that criminal trial the learned judge made a number of findings that the – that the Solicitor for the Northern Territory has pointed out. You understand that?---Yeah.

What I’m suggesting to you is that an expert has given an opinion to the Children’s Commissioner who’s made the finding on the evidence that she heard, along the lines of the – the underlined paragraph that you see there. Do you understand that?---I understand it but I don’t agree with it.

Right. Now, I want you to – and, indeed, Mr De Souza gave evidence in these proceedings and was shown the footage from 9 December 2012 as well. Did you know that?---I was aware that he gave evidence in court.

And he agreed with Mr Unger’s assessment. Were you aware of that?---No.

COMMISSIONER WHITE: Not sure how – well - - -

MR O’BRIEN: Well, in fairness to the witness.

COMMISSIONER WHITE: - - - how forensic that line of questioning is.

MR O’BRIEN: I will alert you to that later.

Look, can the video of 4 October be shown to the witness, please – 4 October 2012 from Alice Springs Juvenile Detention Centre. This footage can be played.

RECORDING PLAYED

MR O’BRIEN: That’s Dylan Voller in the white tee shirt you can see pacing around in the cell at the Alice Springs Juvenile Detention Centre?---That’s correct.

At this stage he’s 13 years of age. Do you understand that?---Yeah.

And you’re there with goggles on?---Yep.

Holding his – Dylan Voller’s left arm; correct?---Yep.


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Okay. We can stop it there. Now, earlier in today’s proceedings, I suggested to you what you said about not having grabbed Mr Voller’s neck was untrue. You can see yourself in the video just there towards the end of it grabbing him by the neck and holding his head down; correct?---All I’m doing is supporting him because as you can also see he’s spitting on us. We’re trying to control him, to stop assaulting us and to keep him safe as well.

Well, I simply confine my question to the grabbing of the neck. Do you agree that you grabbed him around the fleck on that occasion?---All it is is to support him to stop him from spitting.

COMMISSIONER WHITE: Mr Tasker, don’t get defensive about it, but see if you could answer Mr O’Brien’s question?---Yes, ma’am.

Ask it again, listen to the question and see if you can answer it.

MR O’BRIEN: Do you see yourself in the video grabbing him around the neck?---I’m holding his neck, I’m not grabbing it, all I’m doing is controlling him to stop him from spitting.

You’ve got him by the back of the neck to force him to the ground, isn’t it?---I don’t agree with that.

You were never charged in relation to this incident, were you?---No.

I suppose you weren’t even aware that the Children’s Commissioner investigated this incident as well. Were you aware of that?---I know they investigated many things but I’m not aware if they looked at this one.

Not aware that they investigated this matter?---They investigated it – quite a number of incidences and I can’t recall if they had a look at this one or not.

Right. On page 45 of the same report we looked at before, the Children’s Commissioner concluded – you haven’t seen this before so it’s very important you have a look at it now – 45.3, Mr Unger has given an opinion about it. You can see at the top of the page there, but I necessarily draw your attention to it. You see that?---I’m not sure if that’s page 44.

Well, it’s page 45; okay?---Yep. I see 45.

And you see that there’s a discussion about PART training but we know that you didn’t have PART training; correct?---No, I had PART training.

You did have PART training?---Yes.

Okay. And then that paragraph above the box it says:


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I accept Mr Unger’s expert opinion and consider this to be another incident of excessive or inappropriate force. It’s a further example of inappropriate force being used during at risk procedures.

You see that?---Yes, I do.

And I suggest to you that that is what was happening .....?---I don’t agree with that at all.

Inappropriate excessive force?---I don’t agree with that.

This video was also shown to Mr De Souza. You might care to comment. He said that he had an issue with your holding Dylan Voller’s arm above the axis of the body. You know how you had the arm and you were holding it up?---All I was doing was to assist him, supported him down onto the floor.

Paragraph 286 of his statement in November of last year, Mr Voller complained that when you did that it caused him pain and discomfort. Would you accept that that would be the case?---No.

If you hold him like that?---No, he made no reflection of that what so – and he was examined by medical afterwards.

He said it caused pain and discomfort. He didn’t say it caused any injury. Do you understand? Do you understand?---I understand, but I don’t agree with it.

Well, the reason that you’ve held his arm in that awkward position is to ensure that he complied by causing pain and using force. That’s what you’ve done in that position, haven’t you?---That’s incorrect.

And Mr De Souza had a problem with that in terms of PART training. Do you understand that?---He didn’t raise it with me.

It’s inconsistent with PART training, isn’t it?---And so is being spat on.

Listen, I want to ask you about the process of stripping a child naked who’s determined at least some level to, in evidence, an intent to kill or hurt themselves. Can I suggest to you that stripping a child naked in those circumstances is completely and utterly unnecessary?---When they’re using their own clothing to inflict self-harm you’re left with no choice to remove their clothing for their own welfare and safety so they can’t injure themselves.

Were you aware that there was a conflict in terms of the operating procedures and manuals in relation to stripping children totally naked or levering their undergarments on between Don Dale and Aranda House, were you aware of that?---No, I can’t recall that.


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I want you to pause to reflect for a moment and consider a 13 year old child in the position such as this: they’ve just told a youth worker that they wanted to kill themselves, do you think, on reflection, that coming in and using this sort of force and stripping them naked by holding them down in order to do so may be traumatic for that child?---I agree it’s traumatic but at the same token you have to take the risk episode seriously and all you’re doing is there to keep them safe and prevent them from doing any injury by them using their clothing.

Of course, in each of these instances you were told, were you not, to take Dylan Voller’s clothes off, in fairness to you?---It’s procedure to take the clothing off if they’re using them.

Just taking a step back, having a look at it now with benefit of hindsight, you would understand that that could be a very traumatic effect on that child in that vulnerable state. Do you agree with that?---I agree it’s very traumatic, it’s traumatic for everybody but we’ve got the child’s best interests at heart and to stop him from hurting himself.

I suggest that that is not in the best interests of the child. You would obviously disagree?---I disagree with that.

You see, stripping a child in the manner which we’ve just seen in both 9 December and that video that’s just been shown, who may have been previously sexually abused, do you agree that that would be re-traumatising?---I would agree that it is traumatising, yep.

And would you agree with the proposition that in each of these occasions, you’ve seen these videos before, haven’t you?---Yes, sir.

Mr Voller seems more agitated, or at least as agitated at the end of the stripping than he – than he did beforehand; correct?---I think anybody would be agitated if they had their clothing removed but again it was pure and simply for their welfare and safety. They were using their clothing to cause self-affixation and we were left with no option to do what we had to do, for their welfare and safety.

Mr Tasker, Counsel Assisting has taken you to some of the inconsistent accounts you’ve given in relation to your attendance at Joanne Voller’s house, or at least upon her street, on the day that the charges were withdrawn against you. You remember that evidence?---I remember your offsider saying that, yes.

I want to suggest to you very simply that what you were involved in on that day in calling the police was a pre-emptive attempt at avoiding trouble by the police because of – for intimidation?---That is not true.

That you intended to intimidate the Voller family so that that might have some bearing on whether you’re recharged?---No, that’s not true. I have never intimidated the Voller family and ......


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And the fact that you’ve given two inconsistent accounts is evidence of your not telling the truth in relation to that matter?---I disagree with that.

One last area, please, Mr Tasker. In the judgment of Barr J that has been referred to he says in the course of his decision that you gave evidence that – of a one arm and a two arm restraint and another – this is on paragraph 6 – and another technique commonly referred to as the “wedgy”. Do you remember giving that evidence?---I can’t recall.

Do you recall whether there was a common technique referred to as the “wedgy” in terms of restraint or escorting children?---When we were taught PART there was a wedgy, yeah, and that was grab by the back of the pants – hold them by the back of the pants.

I suggest it wasn’t part of the PART program. Do you agree with that?---I was shown that in PART.

Nothing further.

COMMISSIONER WHITE: Mr Callaghan.

MR CALLAGHAN: I have no further questions but there’s some housekeeping, but Mr Tasker could be excused before we - - -

COMMISSIONER WHITE: Nothing from - - -

MS BROWNHILL: ..... thank you.

COMMISSIONER WHITE: Thank you Mr Tasker, you are released from your summons to appear before the Commission. You’re released---Might I take my drink?

You can take the water---Thank you.


MR CALLAGHAN: For the record, the video that was screened to the evidence is exhibit 56. There is a recording of the incident on 9 December 2010. It has not apparently yet been tendered. It’s not, as I understand it, in a position to be played and that’s why Mr O’Brien wasn’t able to have it screened but it should be tendered at this point in the record. So if I could notionally tender it and have it given a number.

COMMISSIONER WHITE: Well, it should be played at some point.


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MR CALLAGHAN: Yes, it will be and I would just like - - -

COMMISSIONER WHITE: I take it Mr Tasker doesn’t need to see it?

MR CALLAGHAN: Well, no, Mr O’Brien managed to complete his cross-examination without it being - - -


MR CALLAGHAN: - - - screened.

COMMISSIONER WHITE: I understand he didn’t have much choice about it, I don’t think.

MR CALLAGHAN: No. It was unfortunate and indeed there was a hitch with exhibit 55 as well which I had wanted screened, but in any event, just when the record comes to be reviewed later on, it would just be handy if it was locatable at this point, I think.

COMMISSIONER WHITE: As soon as things are fixed, will you have it shown then - - -

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: - - - so that it’s reasonably proximate to the transcript?

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Thanks. Alright. Exhibit 291 for the CCTV footage for 9 December 2010.

EXHIBIT #291 RECORDING OF THE INCIDENT ON 9 DECEMBER 2010

MR CALLAGHAN: 2010?


MR CALLAGHAN: Yes. I call Jesse Palu.

<JESSE CORNELIUS NELSON PALU, AFFIRMED [3.44 pm]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

.ROYAL COMMISSION 19.4.17 P-2542 J.C.N. PALU XN©Commonwealth of Australia MR CALLAGHAN

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COMMISSIONER WHITE: Thank you. Please be seated, Mr Palu.

MR CALLAGHAN: May you tell the Commission your full name, please?---It’s Jesse Cornelius Nelson Palu.

Mr Palu, you’ve prepared a statement dated 28 February 2017 for the purposes of this Commission; is that correct?---That’s correct, yes.

You have a copy of that in front of you?---I do.

Yes, I tender that statement.


EXHIBIT #292 STATEMENT OF JESSE PALU DATED 28/02/2017

MR CALLAGHAN: The representatives for Mr Kelleher and Mr Voller both have leave to cross-examine Mr Palu. I’m content for them to lead off.

COMMISSIONER WHITE: Yes. Thank you. Mr O’Brien.

MR O’BRIEN: Thanks, Commissioners.


MR O’BRIEN: My name is O’Brien and I appear for Mr Voller. You understand that, Mr Palu?---Yes.

Can the video for 16 August 2014 be shown, please, the first of those two videos.

COMMISSIONER WHITE: Is that able to be shown, Mr Callaghan, as far as you know?

MR CALLAGHAN: I think it should be. If there’s any hitch we saw the – there are two from the same date. We saw one of them earlier so this one should be available. 57.1. Exhibit 57.1.


MS BROWNHILL: Mr Palu, you need to be watching the screen. The video’s coming up on the screen?---Yeah.

.ROYAL COMMISSION 19.4.17 P-2543 J.C.N. PALU XXN©Commonwealth of Australia MR O’BRIEN

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MR O’BRIEN: Now, as it commences, you’ve seen the video for 16 August 2014 before, haven’t you?---Yes, I have.

RECORDING PLAYED

MR O’BRIEN: If we just pause it there, put it in context. The person who threw the object was Mr Kelleher?---That’s what appears on the camera, yeah.

And the other person with him is Mr Zamolo?---That’s right.

Okay. And I think you’re about to enter, so let’s see your appearance. And that’s you at the door?---That’s me.

Okay. Let’s stop it there. Now, what’s happened in that time within the cell is, of course, commonly known, and that is that Mr Kelleher threw some wet paper at the camera?---I know that now, yeah.

You know that?---Yes, I do.

And you can be seen at the door, apparently observing what’s going on within the cell; is that correct?---You can see within the cell. It is hard to see in there, but - - -

But you’re looking in that general direction; correct?---It appears that way, yes.

And now you can see that Mr Kelleher and Mr Zamolo have left the cell?---Yes.

And you’re still at the door looking in that general direction?---Yes.

Now, obviously this was only your third day on the job?---It was.

So it was all pretty eye opening, I imagine?---I didn’t really know what to expect.

Yeah. Did you see Mr Kelleher throw the pear at the cell door?---No, I did not.

You did not. That would have been surprising if you had seen something like that, I imagine, in a detention centre. Would that have surprised you if that had happened and you’d seen it?---I think it would have, yeah.

But you did see Mr Kelleher throwing wet paper up at the camera, didn’t you?---Toward the ceiling, yes.

Yes?---Yes.


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Did you think to yourself, “I wonder what he’s doing, what an interesting thing to be observing”, did you think that to yourself?---I actually didn’t know really what to make of it. I never had a formal showing around at the centre.

You had no training by that stage either, had you?---I was – minimal, and I wasn’t familiar with the cell layout to know where everything was.

So you saw him throwing paper at the ceiling?---Yes. That’s what it looked like.

COMMISSIONER WHITE: .....

MR O’BRIEN: Yes.

Now, I want to take you to annexure JP1. This is a letter to Mr Middlebrook, because – it’s going to come up on your screen but you’re familiar with – as it comes up on the screen, you were asked by the professional standards unit to account for your behaviour and the behaviour of other youth officers at the time; correct?---Yes.

And you wrote a letter to Ken Middlebrook explaining your point of view on what had occurred; correct?---Yes, that’s right.

And that’s this document here dated 9 October 2014; correct? I will go down to the bottom so you can identify it. It’s JP1?---Yes, no, I’m familiar with that.

Right. If we pause the image there, you can see that you’ve – you’ve said to Mr Kelleher:

I did not hear any part of the conversation occurring in detainee Voller’s room.


I want to suggest to you that that’s not entirely true, that you would have heard Mr Kelleher yelling?---No.

At least something - - -?---No.

- - - at Mr Voller?---No.

You see, Mr Kelleher has given evidence that he yelled at Mr Voller?---Okay.

You say you didn’t hear anything?---I don’t believe he was yelling. From my understanding it was a firm talking to. I don’t believe he was shouting.

Did you hear anything he said?---No, I didn’t. Have you been inside there?

I have, as a matter of fact, but let me ask the questions of you, if you don’t mind?---Yes, sure.


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Mr Palu, you say that it was a firm talking to but you didn’t hear what was said?---No.

And Mr Kelleher has said that he yelled something. You understand that don’t you?---Okay. I’m aware of that now.

Are you suggesting, Mr Palu, you heard nothing as to what was said?---Nothing that I could write down and tell you word for word that this is what was said.

You just watched him as he stood over Mr Voller and spoke, in your words, sternly; is that right?---That’s correct, yes.

Okay. Alright. I suggest to you that if you had heard, and you may well have heard, Mr Kelleher threaten to injure Mr Voller, what do you say to that?---I say it’s not true, it’s not correct.

You say you didn’t hear it; is that right?---I did not hear it and I don’t believe that’s what Mr Kelleher would have said to Mr Voller.

Well, if you didn’t hear it you don’t know, do you?---That’s a fair statement. I don’t know.

Now, you go on in that paragraph to say this:

I was of the understanding that this was a conversation between Kelleher and Voller and did not specifically require my attendance nor my attention.

Correct?---Yes.

Now, you say then:

Which was diverted to the basketball area.

You see?---Yes.

Your attention was never diverted to the basketball area. It’s clear on the video. You’re watching what’s going on in the cell the whole time?---My visual attention is, yes.

Your visual attention, what, are you listening somewhere else?---There was a visit being conducted at the time. There was a lot of loud laughing outside. There was other detainees in the BMU that were also shouting. There was a lot going on.

It seems to me as if you’ve misled the Commissioner:

My attention was diverted to the basketball area.


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It’s total rubbish, isn’t it?---No.

COMMISSIONER WHITE: I’m not sure about that, Mr O’Brien. I think if we’re in any doubt, perhaps we should have a look at it again.


COMMISSIONER WHITE: Would you mind playing part of that again. It doesn’t take long.

RECORDING PLAYED


I suggest to you again – you’ve seen it now?---Yeah.

Your eyes don’t shift. Once they go into the cell, your eyes are focussed and remain focussed on them and what’s happening within that cell; correct?---It appears that way.

And again I suggest to you you’ve misled the Commissioner when you said your attention was diverted to the basketball area outside?---That was my recollection of events at the time.

It’s wrong, isn’t it?---Yes.

Mr Palu, when these matters occurred, you were – these matters occurred, of course, on 16 August 2014, and then in November of 2014 you were issued with an official warning?---I think it was before then. I think it was sometime in September that I was issued with that formal letter from Professional Standards.

I’m talking about the official caution and warning you got issued by Ken Middlebrook in relation to your involvement in all of this?---If that’s what you’re telling me, that’s correct. Yes.

Thank you. Then in December you were promoted to the Senior Youth Worker within four months of having taken the job and having been given a formal warning. Is that the situation?---Yes. That’s right.

So despite being involved in this incident - - -?---Right.

- - - it appears to me, despite having misled the Commissioner, you got a promotion?---Yes.

It’s astounding, isn’t it?---Make of it as you want, I suppose.


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Very well. I want to ask you about paragraph 21 of your statement, please. You refer to another occasion where Mr Voller was involved in an altercation with Youth Justice Officers but this time you had a mattress and the incident occurred on 5 April 2015?---Yes.

And you’ve dealt with the – both the allegation by Mr Voller and your response to it in your statement; do you see that?---Yes.

Now, I want to just take you to page 2 of JP2 which is – sorry, to annexure JP2. Now, JP2, just have a look at that front page. That’s a statutory declaration that you gave to police in relation to a charge that was later laid against Mr Voller for spitting at a staff member; correct?---Yes. Yeah.

Okay. And in that – and page – I just want to ask you about a – there’s no doubt that that’s your statement. You accept that, don’t you?---Yes.

It’s annexed to your statement?---Yes.

I want to ask you about one discrete area there. On page number 4 of that stat dec, second paragraph, you used, you say – sorry, is that – in fact, it’s page 3, it’s marked page 4 at the top. Thank you. You say:

I used the at risk mattress to form a barrier to hold Dylan against the cell wall to protect us from being punched by Dylan.


You go on to say:

Officers Church and Ross had hold of Dylan’s upper body whilst officer Walton had hold of Dylan’s legs.

That’s your account, isn’t it?---Yes.

And then that’s the state of affairs as you came into and dealt with Dylan on that day, according to this statement; correct?---Yes.

There’s no reason to second-guess that that’s what did occur?---No.

Thank you very much. Now, last – paragraphs 28 to 36 you deal with another allegation that Mr Voller made in relation to an occasion where he was at risk?---Which occasion was that? I can think of about 20.

You can think of how many?---Probably 20.

Right?---Yeah.


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It was sadly a regular occurrence, wasn’t it?---It was.

Yes. Okay. So on this occasion he had threatened to hurt himself or kill himself; correct?---Which occasion are you referring to?

This paragraph 28 - - -?---What date - - -

- - - of your statement?---What date have you got?

It’s actually 8 May – 8 May 2015?---That’s the incident report I’ve provided because that’s the one that best fit the description.

JP6 is the annexure you’ve referred to?---Right.

Have you got JP6 in front of you?---Yes, I do.

Thank you. Turn that up and we will have it on the screen, please. Now, you’re familiar with this document, I think you drafted it, yes?---Yes, I am, yeah, that’s right.

And you’ve annexed it to your statement in answer to his – in relation to his allegations about this particular occasion, correct?---Yes. Yes.

Now, I just want to ask you about the – there are, in fact, recorded in this document two separate occasions where Mr Voller was threatening to hurt himself; correct?---I think I’ve only got one.

Let’s have a look at it. It was Monday, 8 May it says on the first line?---Friday, 8 May?

Monday 8 May, you can see, yes, it says Friday at the top, then goes on to say on Monday, 8 May. Regardless of the day, 8 May?---Right.

If we go down further, if we can scroll up a bit please:

Approximately 11.10 am a call was received from Youth Justice Walton in relation to communications regarding YJs to attend C Block A Wing Cell 1.


Then you say that Mr Voller, the room – attempted to communicate with Mr Voller, no response, visual check was done. You could see that he had tied a torn piece of at risk mattress around his neck; do you see that?---Yes, I think - - -

He appeared to those present to be unconscious; correct?---Yes.


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Okay. And then you go on to say what happened after that in the incident report?---Yep.

Okay. Now, if we go further down the page at approximately – sorry, just before I go to that, the ultimate result was that he was ground stabilised and all staff left the room safely; correct?---Correct.

Okay. Then some hours later at 2.10 pm, 1410 in 24-hour time, a code blue was called and again it appears that a piece of material had been torn from the at risk shorts he was wearing and been put around his neck?---Yes, that’s right. Yep.

Now, you said a moment ago in your evidence that this sadly was not an uncommon occurrence, Mr Voller would threaten and attempt to take his life quite regularly?---Yes.

It must be very confronting and confounding when dealing with that, I accept - - -?---Can be.

Yes?---Mmm.

On this occasion he seems to have done it twice within a passage of a day?---Yes.

That’s obviously the case from your report here?---Yep.

Can I make the observation that at no time after that first incident was he ever offered any medical assistance or taken to a hospital or dealt with by a medical practitioner?---Is that after he amazingly came back to life and tried throwing punches at us? Is that what you’re talking about?

Well, that’s your words, “amazingly come back to life’?---Yes.

Are you somehow making fun - - -?---No, no.

- - - or jest at a young man with a piece of mattress around his neck?---No, not at all. I don’t find that amusing at all.

You think it’s amazing that he’s sprung up in those circumstances?---Well, it’s a very quick recovery.

Even if he had a quick recovery, even if he’s feigning unconsciousness, it’s still a serious event, is it not?---It is and I believe every matter of this type was referred to an on-call or onsite nurse.

It’s a serious attempt to try and kill himself, is it not?---Well - - -

You don’t think so?---I don’t know. I don’t know.


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It should have been dealt with as a serious occurrence, shouldn’t it?---As I said, it would have been referred to the nurse who would have asked us for a brief on the incident and we always went off their recommendations. None of us are medical professionals so we only - - -

It’s not in there?---Okay.

There’s no reference to a nurse, medical?---I’m telling you it would have been done.

Can I suggest to you that he didn’t see a nurse between 2 o’clock and 11 o’clock that day?---Okay.

And he didn’t see a medical person, he wasn’t taken to hospital?---Okay.

Because you guys didn’t take this stuff seriously from him. You just thought he was bunging it on, didn’t you?---No, that’s not the case.

You thought, “He does it so often, it doesn’t matter how we treat him”?---No. No.

Mr Palu, I want to ask you about the photograph. I’ve been asked you show you this?---Sure.

Are you in that photograph?---Yes, I am.

Are you the person to the far?---Far right.

Right?---Correct.

I will hand a copy to the Commissioners. You recognise that photograph?---I do, yes.

You recognise that photograph as coming off a Snapchat account?---I don’t know where it’s come from.

Do you know who took it?---No, I don’t.

Did you take it?---No, I did not.

I want you to, with a pen, and a piece of paper, please, name each of those people in the photograph from left to right. You at the end. While that’s happening, I will ask, do you remember the occasion?---Yes, I do.

Was what the occasion?---It was a friend’s wedding.

Right?---Yeah.


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COMMISSIONER WHITE: Is there any reason why the photograph can’t be written on rather than the separate piece of paper.

MR O’BRIEN: Thank you, Commissioner, that’s a great idea. Can you get a pen and write with an arrow the people’s names from left to right, please.

COMMISSIONER WHITE: Got a copy?

MS BROWNHILL: We’ve seen it, yes.

THE WITNESS: Have these people not been identified before me doing this.

MR O’BRIEN: That’s why I’m asking you to do it in the way that we’re doing it. Okay. If there’s any problem we would have objections all over the place. All of these people depicted in this picture, whose names I will not read out at this stage - - -?---Yes.

- - - are Youth Justice Officers at Don Dale Centre; is that correct?---Yes.

They were at that time when the Four Corners program was aired, correct?---Yes, except for myself, not me.

Except for yourself?---Yes.

And they were at Don Dale Detention Centre in or about August 2014, correct, working with you at that time?---Yes.

Okay. Now, Mr Palu, the caption on that photograph is:

Four Corners crew.

?---Right.

Hashtag campsite hashtag spit hood hashtag churrbro – C-h-u-r-r-b-r-o – do you see that?---Yes.

This is after the Four Corners program has been aired, you’re involved in this photograph.

MS BROWNHILL: I object. The witness’ evidence is that the photograph was taken at a wedding of a friend. He knows nothing about where the – where this photo came from or even who took it.

COMMISSIONER WHITE: Ms Brownhill, he’s in the photograph, he knows who else is in it. I think the questions can continue.


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MS BROWNHILL: Well, the questioning about the caption are founded on a number of premises that haven’t been put to the witness.

COMMISSIONER WHITE: The witness is, it seems to me, able to say he doesn’t know about the caption. Let’s see how it goes. He seems well able to answer for himself, Ms Brownhill.

MR O’BRIEN: This photograph and the caption upon it seems to suggest that it was taken or at least displayed somewhere on social media after the Four Corners program in July of 2016?---Okay.

Is that the case? You’re aware of it?---It would be hard for that caption to come up otherwise.

Yes?---Yeah.

And it seems to suggest that there’s some sort of camaraderie associated with being involved in some way with that program, doesn’t it?---No, no, not at all.

Did you receive this Snapchat - - -?---No.

- - - image?---No, I did not. The first time I saw that photo was probably on a Facebook page probably three days later.

Do you know what the hashtag “tamps up” means?---No, I don’t. No, I do not.

Tamp colloquially – in colloquial expression, is someone who interferes with children. Are you aware of that?---No.

You know what a spit hood is, don’t you?---Yes, I know what a spit hood is.

What about “churrbro”, do you know anything about that?---It’s New Zealand slang.

New Zealand slang?---Yeah.

Perhaps the person who wrote this was from New Zealand. Can you help us?---No. I can’t help you.

You don’t know the author of this document?---I do not know.

I suggest to you, Mr Palu, that after the Four Corners program aired there was some feeling of hype and excitement that you had been involved in all of these incidents, or that these people had been involved in Don Dale and that these incidents had taken place. Is that the case?---No. No.

Some sort of sense of bravado?---No.


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Amongst you and your colleagues?---No.

At Don Dale?---Not at all. Rubbish.

You had been involved in what had been aired on Four Corners?---No.

That’s certainly what this document demonstrates .....?---There were many photos taken at that wedding that night. Probably hundreds - - -

Not with - - -?--- - - - that I was in.

Not with the description that’s placed on that?---If I had known captions were put on a photo I would not have actively participated in a photo like that, after such a controversial show.

But someone probably amongst that crew has done that, obviously?---I don’t know. I don’t know. I can’t help you. I’ve already answered that.

Very well. Mr Zamolo, you’re currently a correctional officer at - - -?---I think you’ve got the wrong guy.

I beg your pardon. I don’t want to confuse you with Mr Zamolo. Mr Palu, I apologise, you are currently a corrections officer at the Holtze adult facility?---Yes, that’s right. Yep.

And you have had Dylan Voller in your custody - - -?---Yes, I have.

- - - at that facility in recent times until his release in March?---Yes.

Are you aware of allegations being made in relation to you as to your intimidation upon him whilst he’s been in that centre?---Yes, I’m aware of those.

What do you say to the suggestion that you have intimidated him and others in relation to their giving evidence in these proceedings?---I say that’s absolutely not true and I’ve got some email documents to my superintendent for every alleged time that Dylan Voller has stated that I have tried to intimidate him or been in an area close to him.

So you’re aware that he made allegations in a timely fashion in relation to your conduct. Is that the case?---In regards to my conduct, what conduct are you referring to?

Intimidating him?---I’ve never done that.

Using force upon him whilst he’s been in adult jail?---Absolutely not, I’ve never used force upon on Dylan Voller ......


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So you’ve never used force against Dylan Voller .....?---On Dylan Voller in adult custodial, I’ve never used force on.

There’s also been allegations by other young people, BU – BQ, that you intimidated him?---Who is BQ?

There is a pseudonym list on your desk there.

COMMISSIONER WHITE: Perhaps someone will pass that information to Mr Palu.

MR O’BRIEN: Coming from your solicitors. Are you familiar with BQ?---Yes.

Good?---Yes. Yes.

You understand that in these pleadings before this Royal Commission he has also made allegations that you intimidated him in relation to his – his giving evidence and in - - -?---I haven’t received - - -

- - - the Royal Commission?---I have not received anything in writing to respond to that allegation.

You have not?---No, I don’t.

COMMISSIONER WHITE: What about orally, Mr Palu?---Orally? No, I mean, he is a protected witness, is he not, so I haven’t heard his oral evidence, so - - -

No, no, I’m sorry, you said you haven’t received anything in writing about his complaint. Have you received any intimation that a complaint has been made?---Beg your pardon, sorry, yes, my – the people representing me did mention the – the nature of that allegation to me and I was waiting on some written form so I could obviously respond to that allegation.

MR O’BRIEN: And what do you say to that allegation, you’ve intimidated him also?---Prior to this allegation coming to light, I did not know who BQ was, I never had any dealings with BQ. In fact, I didn’t realise that this protected person was ever at Don Dale.

Now, Mr Palu, you understand that those sort of allegations are extremely serious?---Yeah, totally.

And you’ve said in your – the passage of your evidence there, you’ve sent some correspondence to the Commissioner or to your superior in relation to this?---Yes.

Commissioners, I would ask that that be called upon by Counsel Assisting for obvious reasons, and I do that now, just to put it in a timely fashion.


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COMMISSIONER WHITE: Ms Brownhill.

MS BROWNHILL: We’re happy to provide a further statement from Mr Palu attaching the emails and correspondence that he has referred to.

COMMISSIONER WHITE: Thanks, Ms Brownhill.

MR O’BRIEN: Thank you. I’m grateful for that. Those are my questions of you, Mr Palu.

COMMISSIONER WHITE: That shouldn’t take too long, I shouldn’t think. It’s fairly recent and not - - -

MS BROWNHILL: Well, it will simply be a matter for Mr Palu to gather them together and provide them and we can obtain - - -

COMMISSIONER WHITE: You will attend to that, Mr Palu, and give it to your solicitor?---Yes, I will.

Thank you?---Yes.

MR O’BRIEN: Those are my questions of you, Mr Palu. Thanks for your time. Commissioners, DV3 has been shown to the witness. I will leave it to the very capable hands of Mr Callaghan what is done with that. But I would obviously ask that it be tendered at some stage in an appropriate form.

MR CALLAGHAN: I tender that.

MR O’BRIEN: It’s been marked – the witness’s copy has been marked.

MR CALLAGHAN: I tender the marked copy.

COMMISSIONER WHITE: Perhaps if you show it to Ms Brownhill first because there’s a fair chance that they’re all employees of the Northern Territory.

MS BROWNHILL: Can I just have a moment to discuss with - - -


MR CALLAGHAN: I tender the marked copy subject to the qualification that at this stage at least only a – an unmarked copy should be published.

COMMISSIONER WHITE: Attend to that then.

MR CALLAGHAN: I hand up one of each.


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COMMISSIONER WHITE: Yes. Thank you. Exhibit 293 for the photograph the unmarked copy of which will go to the public record. And the marked copy will be confidential.

EXHIBIT #293 PHOTOGRAPH

COMMISSIONER WHITE: Is that sufficient for your purposes, Ms Brownhill and Mr Callaghan.

MR CALLAGHAN: It is for mine.

MS BROWNHILL: Yes.

MR CALLAGHAN: Mr Kelleher’s .....

COMMISSIONER WHITE: Thank you, Mr Tiwana.

MR TIWANA: Thank you, Commissioners. I’ve only got a few questions.

<CROSS-EXAMINATION BY MR TIWANA [4.19 pm]

MR TIWANA: Mr Palu, just on behalf of Mr Kelleher I’m going to ask you a few questions. As you’ve told us, 16 August 2014 was only your third shift?---Yes, that’s right. Yep.

So at that stage you were still shadowing other YJOs?---Yes, that’s correct.

And I take it at that stage your knowledge of the detainees was very limited?---Extremely.

And in terms of Dylan Voller specifically, is it the case that you didn’t really know much about him?---Nothing.

His background?---Nothing at all.

Now, you say that at the start of the shift you were assigned to shadow Mr Zamolo and Mr Kelleher?---Yes, that’s right.

And who was it that you assigned you to shadow them?---I don’t remember exactly who assigned me to.

Okay. And as we know you accompany them to the BMU unit. What was your understanding as to why Mr Kelleher and Mr Zamolo – as to why they were going to

.ROYAL COMMISSION 19.4.17 P-2557 J.C.N. PALU XXN©Commonwealth of Australia MR TIWANA

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the BMU unit?---I was briefing informed that he had been misbehaving on the previous shift or the past few days and Mr Kelleher was going to go and speak to Voller about his unacceptable behaviour.

Okay. Did you know – you say you were briefly informed?---Yes.

Did you know any specifics about what his misbehaviour was?---No.

Okay. And the only reason you were there in the BMU was because you were shadowing there?---Yes, that’s right.

Okay. Now, you’ve told us that you didn’t hear anything, any conversation between Mr Kelleher and Dylan Voller, and it was suggested to you by Mr O’Brien that you’re not telling the truth about that, and you replied by saying:

Have you been inside there?

?---Yes. I was asking Mr O’Brien if he had been inside there.

I just wanted to ask you what did you mean by that?---Just the way that that BMU is set up, it’s all concrete. It’s hard to hear when a lot of people are yelling and talking and screaming. It’s – it echoes and lot.

Okay?---So that’s what I was making reference to, has he been inside there to be able to understand why I didn’t get the full context of that conversation.

COMMISSIONER WHITE: When you mention yelling and screaming and talking - - -?---Yes.

- - - are you talking about the activity going on out in the basketball area or the activity inside the cell?---Both. Both, inside and out. I think there were five or maybe six other boys in that area at the time.

In the BMU area?---Yes.

In the other cells?---That’s right.

And were they making a lot of noise?---Yes, they generally did.

MR TIWANA: And the noise from the basketball court, who was on the basketball court?---There was a visit being conducted. I don’t remember which detainee that it was but they had a group visit going on, and there was a lot of sporadic laughter, it was – yeah.

You ..... on the video clip that we’ve just seen, having entered the BMU you are seen walking back towards the entrance door and looking out on two occasions, although

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very briefly. What was the reason for that? Was that because you had heard the noise?---Yes.

.....?---Like I said, that visit was being conducted out in that area.

Having left the BMU, is it the case that you then began shadowing another YJO?---From recollection, I took one of the boys from the end cells out of his cell so he could have his visit and that’s really all I remember about that particular set of circumstances.

So you didn’t accompany Mr Kelleher and Mr Zamolo back to the office?---No. No.

And it was after the incident when you were talking to other YJOs that you did become aware that, in fact, Mr Kelleher had shared a – generally a good in respect with Mr Voller; is that correct?---Yes. Yeah.

Yes. Thank you.

COMMISSIONER WHITE: Is that the cross-examination leave?

MR CALLAGHAN: Yes, they’re the only ones with leave. The solicitor indicates that she has nothing. I just have a couple of brief questions.

<RE-EXAMINATION BY MR CALLAGHAN [4.24 pm]

MR CALLAGHAN: Mr Palu, I’m just interested in the concept of shadowing. Do I take it from that that it was part of the induction procedure?---That’s my understanding of it, yes.

You were there to learn?---Yes.

To observe what the other officers were doing?---Yes.

To listen to the way they dealt with the detainees?---Yes.

And yet you’ve given evidence that during the incident that we’ve looked at, it was hard to see inside the cell?---Yes, it was.

And that you couldn’t hear what was going on?---Not clearly, no.

Which leads to the question, if you were there to learn, why did you stay at the door?---I can’t really answer that question. I mean, I’m shadow shifting. I’m not an active participant in anything that was going on in that centre at that point in time.

.ROYAL COMMISSION 19.4.17 P-2559 J.C.N. PALU RXN©Commonwealth of Australia MR CALLAGHAN

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No. But you – I’m suggesting to you that if you were there to learn, you might reasonably be expected to have been paying closer attention to what was going on inside the cell, whereas you remained in the position in which we’ve seen you at the door?---Okay.

Well, I will go further and suggest to you that your behaviour has the appearance of someone who’s acting as a lookout. Do you have a response to that?---I was not acting as a lookout.

Did you watch the video of this incident before you gave your statement?---I watched the video of the incident when I went to Professional Standards.

Which was quite some time - - -?---Long time, yes.

- - - before you gave your statement?---Yes.

I’m talking about the statement that we’ve tendered today. Did you watch the video prior to preparing your statement?---Yes, I did, sorry. Yes.

You did?---Yes.

And did you read your report to Mr Middlebrook?---The that letter that I drafted to him, yes, I did.

And in those circumstances, and given the concession you’ve made about the fact that at least in one respect incorrect, do you revise the assertion made in paragraph 12 of the statement that’s been tendered today?---Sorry, paragraph 12?

Paragraph 12?---Okay. Yes.

You do?---Yes.

To the extent of the concession that you made earlier to Mr O’Brien?---Yes.

Finally, on the question of the photo that you’ve been shown, you say it was at the wedding of a friend. I don’t need to know the name – any more names, but you were asked whether you knew who took it, and you said “No”. Can we take it though that the person who took it must have come from within a limited class of people, namely the guests at the wedding. You would agree with that?---I would agree with that.

And we could narrow the class of people further, I would suggest, by – or to a range of people who were associating with the group of people in the photo. Do you agree with that?---I can’t be too sure about that. I really don’t know. That’s – if that’s what you’re assuming, then that’s your assumption.

I’m not assuming anything, I’m just suggesting that if you actually turned your mind to it you could give us some - - -?---I haven’t looked at that – sorry.

.ROYAL COMMISSION 19.4.17 P-2560 J.C.N. PALU RXN©Commonwealth of Australia MR CALLAGHAN

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You could give us some more assistance just by identifying who took the photo?---I haven’t looked that thorough into it. It was brought to my attention days after the wedding. I don’t remember when the photo was taken exactly, who took the photo. I don’t know anything other than I was in a photo with a group of my friends and that’s all I can help you with.

Were you asked any questions about that photo by Mr Paine or anyone else?---No, I was not.

As far as you’re aware, that – are you aware of any investigation that’s been undertaken into that photo?---No, no. Not aware of that.

Yes, alright. Thank you. I’ve nothing further. May Mr Palu be excused.

COMMISSIONER WHITE: Yes, Mr Palu, you’re released from your summons to attend at the Commission and you’re free to go now. Thank you for your assistance---Thank you.


COMMISSIONER WHITE: Noting the time, Mr Callaghan.

MR CALLAGHAN: Just confirming that there’s no urgent need to call the next witnesses. I understand they will be available tomorrow, but I just wanted to confirm that that was so.

COMMISSIONER WHITE: That’s good, because people have things to do, it’s not as if we can sit out until we drop with exhaustion.

MR CALLAGHAN: No. It was only if someone was catching a plane or something like that that I wanted to make sure and, apparently, there is no urgency. So that would be a convenient time.

COMMISSIONER WHITE: Thank you. Then 9 o’clock start?

MR CALLAGHAN: Just excuse me for a moment. No. The 9 o’clock start today was because of Mr Zamolo’s flight schedule. We - - -

COMMISSIONER WHITE: 9.30 then.

MR CALLAGHAN: 9.30 would be suitable.

COMMISSIONER WHITE: You don’t act for Mr Clee, do you, Ms Graham?

MS GRAHAM: No, we don’t. No.


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COMMISSIONER WHITE: Is Mr Clee’s representative here.

MR LEWIN: I appear for Mr Clee.

COMMISSIONER WHITE: Thank you. Would you mind announcing your appearance for the transcriber.

MR LEWIN: Yes, your Honour. Lewin is my name and I appear for Barrie Clee.

COMMISSIONER WHITE: Thank you. Will you let your client know then the 9.30 start tomorrow?

MR LEWIN: Yes. He will be here promptly, your Honour.

COMMISSIONER WHITE: Thank you. Is there any other witness whose representative might not be the Northern Territory Solicitor-General’s office needs to know?

MR CALLAGHAN: I think the balance are - - -

COMMISSIONER WHITE: The other two on my list.

MR CALLAGHAN: Mr Clee and, of course, Mr Voller are the only witnesses who remain who are not represented by the Solicitor, as I understand it.

COMMISSIONER WHITE: That’s fine then. We’re right. Thank you.

MS KATHRAKIS: Commissioners, my name is Kathrakis, I appear for Ms Coon, as I understand it, appearing on Friday.

COMMISSIONER WHITE: Thank you. That seems well over the horizon at this stage.

MS KATHRAKIS: Yes. Out of an abundance of caution, I didn’t know if we were going through the complete list.


MS KATHRAKIS: Thank you, Commissioner.

COMMISSIONER WHITE: Thank you. Thank you everyone. So 9.30 then tomorrow morning. Thanks very much.

MATTER ADJOURNED at 4.32 pm UNTIL THURSDAY, 20 APRIL 2017


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Index of Witness Events

CONAN ZAMOLO, RECALLED AND RESWORN P-2431FURTHER EXAMINATION-IN-CHIEF BY MR

CALLAGHANP-2431

CROSS-EXAMINATION BY MR O’BRIEN P-2439CROSS-EXAMINATION BY MR TIWANA P-2452RE-EXAMINATION BY MR CALLAGHAN P-2458

THE WITNESS WITHDREW P-2458

BENJAMIN KELLEHER, RECALLED AND RESWORN P-2469FURTHER EXAMINATION-IN-CHIEF BY MR

CALLAGHANP-2469

CROSS-EXAMINATION BY MR O’BRIEN P-2472CROSS-EXAMINATION BY MR BOULTEN P-2484RE-EXAMINATION BY MR TIWANA P-2491


TREVOR HANSEN, RECALLED AND REWORN P-2492FURTHER EXAMINATION-IN-CHIEF BY MR

CALLAGHANP-2492

CROSS-EXAMINATION BY MR O’BRIEN P-2492CROSS-EXAMINATION BY MR BOULTEN P-2495


JAMES MICHAEL SIZELAND, RECALLED AND RESWORN P-2501FURTHER EXAMINATION-IN-CHIEF BY MR

CALLAGHANP-2502

CROSS-EXAMINATION BY MR O’BRIEN P-2502CROSS-EXAMINATION BY MS BROWNHILL P-2521RE-EXAMINATION BY MR CALLAGHAN P-2522


DEREK JAMES TASKER, RECALLED AND RESWORN P-2522FURTHER EXAMINATION-IN-CHIEF BY MR

CALLAGHANP-2522

CROSS-EXAMINATION BY MR O’BRIEN P-2527THE WITNESS WITHDREW P-2541

JESSE CORNELIUS NELSON PALU, AFFIRMED P-2542EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-2542CROSS-EXAMINATION BY MR O’BRIEN P-2543CROSS-EXAMINATION BY MR TIWANA P-2557RE-EXAMINATION BY MR CALLAGHAN P-2559


Index of Exhibits and MFIs


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EXHIBIT #286 STATEMENT OF CONAN ZAMOLO DATED 16/03/2017

P-2432

EXHIBIT #287 STATEMENT OF TREVOR HANSEN DATED 16/02/2016

P-2492

EXHIBIT #288 STATEMENT OF JAMES MICHAEL SIZELAND DATED 03/02/2017

P-2502

EXHIBIT #289 INTENSIVE MANAGEMENT PLAN OF DYLAN VOLLER

P-2521

EXHIBIT #290 STATEMENT OF DEREK JAMES TASKER DATED 10/02/2017

P-2523

EXHIBIT #291 RECORDING OF THE INCIDENT ON 9 DECEMBER 2010

P-2542

EXHIBIT #292 STATEMENT OF JESSE CORNELIUS NELSON PALU DATED 28/02/2017

P-2543

EXHIBIT #293 PHOTOGRAPH P-2557


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