transcript 20 march 2017 web viewyou know, i guess i wouldn’t do it now knowing what i’m...

AUSCRIPT AUSTRALASIA PTY LIMITEDACN 110 028 825

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

TRANSCRIPT OF PROCEEDINGS

O/N H-762180

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

9.34 AM, MONDAY, 20 MARCH 2017

Continued from 17.3.17

DAY 17

MR P.J. CALLAGHAN SC appears with 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 C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMS P. DWYER appears for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR J.B. LAWRENCE SC appears for ADMS L. JARDINE appears for witness Conan ZamoloMR G. O’BRIEN-HARTCHER appears for AGMR J. TIPPETT QC appears for Ken MiddlebrookMR TIWANA appears for Benjamin Kelleher

.ROYAL COMMISSION 20.3.17 P-1392©Commonwealth of Australia

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mailto:[email protected]

COMMISSIONER WHITE: Morning, Mr Callaghan.

MR CALLAGHAN: Good morning, Commissioners. I call Conan Zamolo.

MS JARDINE: Your Honour, while that’s happening, if I could announce my appearance. My name is Jardine and I appear for Conan Zamolo.

COMMISSIONER WHITE: Thank you, Ms Jardine.

<CONAN LORD ZAMOLO, SWORN [9.35 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

MR CALLAGHAN: Could you tell the Commission your full name, please?---Conan Lord Zamolo.

Mr Zamolo, you prepared a statement for this Commission, a statement dated 16 March. That’s statement 115, for the record; is that correct?---Yes.

It’s on the screen in front of you. Commissioners, at the outset, I tender that statement.

COMMISSIONER WHITE: Exhibit 97.

EXHIBIT #97 STATEMENT OF CONAN LORD ZAMOLO DATED 16/3/2017

MR CALLAGHAN: I’ll also tender at the outset a transcript or an interview between the Children’s Commissioner and Mr Zamolo. That’s tender bundle 87.

COMMISSIONER WHITE: Thank you. That will be exhibit 64.87.

MR CALLAGHAN: It was from – that was from the supplementary tender bundle 87, I should have made clear. So that will actually need another exhibit number.

COMMISSIONER WHITE: It will. Have we done anything about it yet? Have we done any tendering from that supplementary bundle, Mr Callaghan?

MR CALLAGHAN: I’m told it will be easiest if that’s just a separate exhibit number.

COMMISSIONER WHITE: Right. Well, exhibit 98 then, thank you.

.ROYAL COMMISSION 20.3.17 P-1393 C.L. ZAMOLO XN©Commonwealth of Australia MR CALLAGHAN

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EXHIBIT #98 TRANSCRIPT OF AN INTERVIEW BETWEEN THE CHILDREN’S COMMISSIONER AND MR ZAMOLO

MR CALLAGHAN: I’ll also tender from the tender bundle a record of interview between Mr Zamolo and Ms Engels from tender bundle 301A.

COMMISSIONER WHITE: That’s the original tender bundle, is it?

MR CALLAGHAN: Yes, it is.

COMMISSIONER WHITE: So that can be given its exhibit number within that bundle.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Exhibit 64.301A.

EXHIBIT #64.301A RECORD OF INTERVIEW BETWEEN MR ZAMOLO AND MS ENGELS

MR CALLAGHAN: Thank you. And I tender two further documents. They are duplicate IOMS officer’s reports at tender bundle 196 and 197.

COMMISSIONER WHITE: Two separate exhibits, Mr - - -

MR CALLAGHAN: Two separate exhibits, please, yes.

EXHIBIT #64.196 IOMS OFFICER REPORT

EXHIBIT #64.197 IOMS OFFICER REPORT

MR CALLAGHAN: Thank you.

Mr Zamolo, that statement that I showed you a range of matters. It’s true to say, isn’t it, you prepared another statement responding to things said by Mr Dylan Voller. A separate statement; is that correct?---I’m not sure.

You prepared two separate statements for this Commission, or they were prepared for you, and you signed them. Are you aware of that?---Yes.

One related to things said by Mr Voller, the other related to everything else?---Yes.


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I just inform you that we’re not concerned today with the one that relates to Mr Voller?---Yes.

Do you follow? We learned from your other statements that you were employed at Don Dale between October 2012 and December 2014; is that right?---Yes.

You were told about the job by some friends who worked there. Can you tell us who they were?---I think it was ......

Who was that?---The ......

I just ask you to keep your voice up a little bit - - -?---Yes.

- - - if you can. I’m having a bit of trouble hearing you. You also speak in your statement about the fact that you learned, whilst at Don Dale, the importance of confidentiality about detainees?---Yes.

Can I ask you, for the purpose of your evidence today, to recall that and observe it by not naming individual detainees when we’re talking about the events that we’ll be talking about?---Yes.

You follow?---Good.

You’ve told us in your statements about the experience that you had prior to working at Don Dale. Can you just summarise the qualifications that you had? You had a first aid certificate, for example?---Yep.

Any other qualifications relevant to your appointment?---I think I had a cert II .....

You’ve said that the training you received was very limited; is that right?---Yep.

Indeed, you go further and you’ve said that the training was actually quite weak and inadequate?---Yeah.

Why was that, in what way was that so?--- ..... just didn’t seem like a lot of training ..... like a week’s worth of training .....

COMMISSIONER WHITE: I didn’t quite catch the answer there, Mr Zamolo?---Didn’t seem like a lot of training. It was, like, maybe a week’s worth of training sitting in the classroom.

MR CALLAGHAN: And if it was just sitting in a classroom, I think you said, it didn’t do much to prepare you for the realities of working on the floor at Don Dale; is that your opinion?---Yeah.

You’ve also expressed some views about some of the other staff at Don Dale who were working there when you were there and suggested that some of them weren’t


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appropriate for the job. For example, if we can get your statement from the supplementary tender bundle which got exhibit number – exhibit 98, if we can get that up at page 10.1. I’m sorry, it wasn’t your statement. It was the – we don’t – I will just refresh your memory. You talked about an employee who had terrible English and the kids got stirred up because he would try to communicate with them and they couldn’t understand what they were talking about. You remember talking about that?---Yeah, vaguely, yeah.

Well, can you just turn your mind to that and tell us what the problem was?---Yes. He just had a – there was just a language barrier there. He couldn’t really interact with the kids too well, they couldn’t understand his directives. Sometimes I guess the kids would get frustrated by it.

And how would that frustration show?--- ..... anger or yeah.

Yes. Were – communication difficulties like that between staff and children there, did they happen often?---Yeah.

Can you think of other ways in which they occurred?---Not really. It’s all a bit of a blur really.

All a bit of a blur. You’ve also said previously that you refused to work with some staff there because you took the view that working there, for them, was a bit of a power trip. Do you remember saying that?--- ......

Beg your pardon?---No, I don’t remember saying that, but yeah, probably true.

Your voice is just dropping away. Whether you remember saying it or not, do you recall that that was the case - - -?---Yeah – yeah.

- - - that, for some staff, working there was a bit of a power trip?---Yeah.

You gave an example in an interview, of one particular youth justice worker who, if a kid asked for some water, he’d only fill the cup up partially?---Yeah.

COMMISSIONER WHITE: I don’t think we call that “filling” the cup.

MR CALLAGHAN: No, indeed.

It was a thing that the officer would do to show that they were in control of how much – the water he child would get; is that right?---Yep.

That particular worker is one that – you said, in your interview with the Children’s Commissioner, that this worker had called a detainee a “stupid black cunt.” Do you recall that?---Yeah.

Did you actually hear that being said to the kid, or - - -?---Yeah, I did.


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Okay. What were the circumstances in which that was said?---I – I can’t recall exactly. I think it was down the bottom in M block. A kid may have been taking too long for a toilet break and he sort of, like, asked him to hurry up and then I think some words were exchanged. I think – I think the kid replied with, “You stupid white cunt,” and then he would have replied it, “You stupid black cunt.” I think that’s how it went down.

Yes. Okay. Was that sort of language or those sorts of exchanges things that you heard on a regular or - - -?---Yeah. But not usually, like, out of anger.

How would it occur?--- ..... playful with the kids, like, that that language was fairly common in jail.

Just as part of everyday conversation, that sort of language - - -?---Yeah.

- - - would be used by the staff as well as the children?---Yep.

Perhaps in a similar, although more serious, vein you’ve spoken about a case – and this is in the Children’s Commissioner interview at page 68.40 – where, as you put it, a female youth officer kicked a 13 year old female detainee in the guts and called her a “fucking slut”?---Yep.

Tell us about that?---I don’t really remember the incident.

Did you see the incident?---I can’t even remember if I seen it or if I was just told about it.

Well, if you were told about it, who told you about it?---I honestly can’t remember.

Can you just take a look at the passage on the screen which is at page 68.40 of the interview. Does that refresh your memory?---No. No, it doesn’t.

Well, you accept that you gave that information to the Children’s Commissioner?---Yes.

You, at that time at least, had a clear recollection that another YJO had reported this incident and reported it on ILES?---Yeah.

That’s what you’ve said there?---Yeah.

Are you telling us that as you sit here now, you can’t actually recall that fact, that someone else had reported it?---Yep, I just – I’ve got a terrible memory.

According to you, if this refreshes your memory, the response of management to this incident was that this person was offered some counselling?---Okay.

Does that jog your memory?---Vaguely, yeah.


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That this worker – this female worker had done this apparently terrible thing, but the response of management was to give her some counselling, and she – she kept her job?---Yep.

Presumably, that was something that was discussed amongst yourself and other staff?---Yeah.

Well, that’s a question?---Yeah. I – I honestly can’t remember this incident taking place. I just don’t remember.

Was it something that wasn’t particularly remarkable, to have this sort of thing occur? Was this particular incident lost amongst other similar incidents in your memory?---No, no. I just have a really bad memory.

Well, you’ve made reference to what you call “weak” management of the Don Dale centre. If we looked at page 13.13 in that same interview, you can see there at about line 13 you say, “I think management is weak.” I was going to ask you whether you thought that previous example was a case of weak management, that a worker could kick and/or swear at a detainee and just get some counselling, not be disciplined?---Yeah. Yeah, definitely say that’s a weak case of management.

Well, do you recall that being your opinion at the time?---Yes. It may have been.

Well, on the subject of weak management, if you can look at that passage that’s on the screen right now and the questions and answers that follow, it would appear that it was your perception that Mr Caldwell in particular was ineffectual; is that correct?---Yes.

Can you explain what you mean by that?---?---I don’t know. Like it says, it always seemed as though Russell would just handball all the – all the incidents. Didn’t want to deal with them himself.

What sort of incidents are we talking about?---Any incidents that occurred, whether it be detainees fighting or between detainees and staff, he didn’t really – this is my opinion, he never really seemed to want to deal with it.

Perhaps to put this in context, your immediate supervisor was Mr Sizeland; is that right?---Yes.

Or if not immediate, he was - - -?--- ..... manager, I think.

And Mr Caldwell was, what, above him in the organisation?---Yes.

But if a problem went to Mr Caldwell your perception was that he would just give it to Mr Sizeland?---Yes.

Was this something that was discussed amongst the staff?---I can’t remember.


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Well, one of the things that you’d heard was occurring under this management was that guards would take a detainee, or detainees to the toilets in order to let them have a fight. Do you recall being aware of that?---Maybe. Not really. It never happened when I was there.

No. You’ve never admitted that you’ve seen it or done it, but it was something that you had heard about?---I just heard about it through the grapevine, yeah.

Well, from whom had you heard about it?---I can’t remember.

Did you ever do anything about it, when you’d heard about it?---I may have mentioned it to someone. I’m not sure.

Who would you have mentioned it to?---Maybe a supervisor. I’m not sure.

Well, you can’t tell me what management knew, but I’m interested to know whether this idea or this concept was discussed freely among the staff. You say you may have heard about it. Was it something that was discussed?---Not really. I mean, I – I don’t – I don’t even know where I heard it. I might have heard it through a kid or another staff member. I’m not – I’m not 100 per cent sure.

Can I take you to another interview that you did more recently. That’s the interview with Ms Engels, the police officer, on 15 March last year. And if we can go to page 23 of that interview. Can you see, at about line 27 – you see the numbers down the side of the page?---Yes.

About line 27. Just over a year ago you told the police that you were pretty sure you knew who the guard was that was setting up fights. Are you telling us that you memory has been affected so much that – in the last year – you can’t remember now who the guard was?---Yes. I – I will just be honest with you. I have a really, really bad memory. I had an incident before I worked at Don Dale, and it has affected my memory, and it gets worse and worse.

So whilst, this time a year ago, you were pretty sure you knew who the guard was now you can’t recall; is that your evidence?---Yeah. Like I said, it’s just – a lot of it is just one big blur.

A lot of it’s what?---One big blur to me.

One big blur. Alright. Well, you had other issues with staff in relation to the behavioural management unit; didn’t you?---Yes.

We don’t need that on the screen any longer. Thanks. In particular, you did not like the fact that there were staff who refused to work in the Behavioural Management Unit; is that right?---Yes.


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Tell us about that?---I noticed – I just thought that we were all on the same pay packet, we were all there to do the same job, so we all should rotate, I guess.

And some staff refused to do it?---Yeah, if I could – recall, yeah, quite a few staff refused to work in there.

And why did they - - -

COMMISSIONER WHITE: You don’t want that document on the screen any longer, do you.

MR CALLAGHAN: No, thanks.

COMMISSIONER WHITE: Thank you.

MR CALLAGHAN: Why did they refuse?---I don’t know. Because they were working with high risk kids.

And so what was management’s response to that?---They just wouldn’t put them in there.

They let them refuse?---Yeah – yeah.

And people like you had to do the work instead; is that right?---Yes.

Who else was in the category of people who would actually have to work in the behavioural management unit?---There was a few. Myself, and Ben Kelleher – I – I can’t really recall any other guards’ names that might have worked in there, but there were – there were a few ..... work in the BMU.

Well, you’ve made some observations about the BMU, and we might go back to the Children’s Commissioner interview at page 17. Perhaps, to lead into that, you – it was the case, wasn’t it, that sometimes the running water to the unit was turned on and off?---Yes.

With the consequence that a child would not be able to wash their hands after going to the toilet; is that right?---Yes.

And to summarise, I suppose, by picking out a few words used on the page that’s on the screen in front of you, your view was that the BMU was a horrible place?---Yeah.

It was revolting?---Mmm.

And it just stank?---Yep.

You’ve also given, as part of the account that you’ve provided as to the way in which the BMU worked, an account of the – what happened when detainees were first sent


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into the unit; that is to say a mattress would be in the room, when they were first sent in; is that right?---Yes.

But if they continued to misbehave then the mattress and, so you’ve said, everything came out?---Yes. Depending on the behaviour, yes.

But it was possible for – well, you’ve said everything, or you’ve agreed with me that everything came out. Can we just first of all work out what you mean by everything. Mattress?---Mattress, doona, pillow.

Yes. So the child would be left in the cell in the unit with absolutely nothing; is that right?---Yes.

And then, depending upon behaviour, things might be returned?---Yes.

So things like mattresses and pillows, doonas, were used to control the behaviour of people in the unit; is that right?---Yes. Yes and no. I mean, like – you know, sometimes a mattress would come out because they’d used the mattress to block the camera just so that would be another reason why it would come out.

Sure?---Yes.

But also if their behaviour didn’t improve in other ways; is that right?---Yes.

We take a look at your statement that was tendered this morning at paragraph 17. You’ve written that you were aware that children were only supposed to be in there for 48 to 72 hours, but management would tell you to leave them there longer?---Yeah. I think that would have only been, like, after the kids escaped and they were – they were recommitted.

Okay. What I’m interested in, though, is that you’ve told us that you recall raising these issues with management, but cannot recall anything ever being done about it. I want to know who you raised it with?---I would have just spoke to the chief supervisor, because I worked with the kids in the BMU a lot. They’d obviously ask the question, “When are we getting out? When are we getting out?” And all I could do was ask and then – and that’s it really. But I never really got an answer as to when, so I had nothing to give the kids.

And it wasn’t your call, was it - - -?---No, it wasn’t.

- - - as to whether they stayed there or not?---No.

Which shift supervisor would you have raised that with?---I – I honestly can’t remember.

Can I take you to the two IOMS reports, 196 and 197. Start with 196. Mr Zamolo, you see that’s a document that was prepared by you?---Yes.


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And it’s about the incident that occurred on 21 August 2014?---Yep.

You’ve dated that Wednesday, 3 September 2014 at the top, at 12.01 am; is that right?---Yep.

Some 13 days after the incident. Can you recall why it was that this report was prepared so long after the incident itself?---No. I couldn’t tell you why.

We take a look at 197. This is also, or an identical form of document. This one is prepared by Mr Kelleher, entered on the same date, and at exactly the same time, 12.01 am?---Mmm.

Do you have any explanation for the way in which these documents came to be recorded as being - - -?---We were on shift together. We may have come to work and – I don’t know, or could be a typo. I really have no idea. Absolutely no idea.

Okay. Do you recall discussing the contents of these reports with Mr Kelleher?---I mean, no, I don’t recall doing that.

Well, it’s the case, isn’t it, that in the lead-up to that incident on 21 August 2014 – we can take that document down now, thanks. If we go back to that 21 August incident. In the lead-up to that, a number of children had been in the BMU for a sustained period of time; is that right?---Yes.

And would you agree that the issues created by that, in that particular case, actually went beyond issues of boredom. They had a real – that lengthy period of detention in that unit had an effect on the way children thought, didn’t it?---Yes.

But boredom, as a general subject, was an issue for the children in Don Dale; is that your evidence?---Yes.

And is the fact that children would get very bored, is that your explanation for an incident where a child ate something apparently disgusting off the table in M block?---Yep.

I’m going to play to you now a recording to you and the Commissioners. Could we please play the recording of the eating incident. Now, there’s an audio that should go with that. I’m not sure why that didn’t play. I’d like to, if the technical people have the wherewithal, actually have that played with the audio.

VIDEO SHOWN

MR CALLAGHAN: Mr Zamolo, you were present on the occasion of that recording?---Yes.


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Where was it?---That’s in M block.

At Don Dale?---Yes.

What appears to have occurred is that at the urging, apparently of a group of people, a boy appears to eat what is a small pellet of something. Would you agree with that as a description that couldn’t be argued with?---Yeah, we – we had no idea what it was ..... found it on the table.

There were clearly a number of people present, a number of young people, and indeed in descriptions of this event you’ve said previously that all the children were there; is that correct?---Yes. There may have been some in the rec room but there were a lot of kids there, yes.

There were a lot of kids there?---Yes.

And we can hear voices saying things such as “Go, go, go”, “Eat that shit”, “Eat that little bit of shit”. Is one of those voices your voice?---Yep.

What were you saying?---I was just that – that was my voice.

Which words did you say?---I was saying, “Go, go, go, eat that shit, eat that little bit of shit.”

Whatever it was, it was clearly something that was not meant to be eaten, otherwise the boy wouldn’t have been dared to eat it. You would agree with that?---He wasn’t really so much as dared. He - - -

Or urged?---He – he picked it up and just was goofing, said, “Who dares me to eat this?” And all the kids just jumped on the bandwagon.

And you did too?---Yeah.

Which other adults were present at the time?---I ..... couldn’t tell you who was on shift that day.

There were other staff?---Yes.

How many other staff would have been present?---Maybe three or four.

I don’t want to get pedantic about this, but when you were interviewed by police you said that there were probably another six guards down there. You’re now saying three and four?---I – I can’t remember.

That’s alright?---I’m just answering as honestly as I can.


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I understand. As I say, I’m not going to get pedantic about that, but there were at least several other - - -?---Yes.

- - - staff members present whilst this incident occurred?---Yes.

Mr Zamolo, if a child was doing something like that in a school ground at lunchtime, or whenever, you would expect the teacher on duty to intervene and prevent them from doing something like that, wouldn’t you?---Yep.

Indeed, if it happened at a shopping centre, or any gathering of young people, you would expect a responsible adult to intervene and prevent the child from doing what appears to be a stupid thing?---Yep.

On this occasion, there was yourself and perhaps three, four, maybe more, other adults present, and nobody did anything to intervene; is that right?---Yes.

Mr Zamolo, what was it about Don Dale that made you think it was okay to let this happen?---I don’t know. It’s just the kids goofing around. Something to pass the day, I guess. I don’t know, it happened a lot in Don Dale. They’d look for things to do to pass the day.

Well, when you say it happened a lot, did incidents like this happen a lot?---Just the kids – just goofing around, playing around, playing pranks on each other.

There’s a difference between goofing around and doing something as clearly inappropriate as that which was occurring here; would you accept that?---Yeah. At – at the time it was just – it was just seen as goofing around. I can see now it was inappropriate.

And that’s what I’m trying to get at, is why was it, do you think, that you didn’t see it as clearly as you do now?---I don’t know. It was just, like I said, it was just something that the kids would do. I don’t know the basis. It was just – just mucking around.

That’s why they were doing it. I’m asking you about why you think it was that you didn’t feel compelled to intervene?---I’m not sure why. I should have, but I didn’t.

Not only did you let this happen, but just after it happened you – well, you gave the child in question some coke from the fridge in order to wash his mouth out; you recall that?---Yep.

Which confirms the fact that it was obviously something disgusting that he needed to wash his mouth out; you’d agree with that?---Yep.

It goes further in your case, though, than just standing by and letting it happen, because you were the one who actually recorded this on your smart phone, weren’t you?---Yep.


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And that in turn raises the question as to whether you should have had a phone in the centre at all. In fact, was it common practice for Youth Justice Officers to have smart phones whilst on duty in the centre?---Yes. Yes, they did. They had their phones ..... Was this something that was done openly or was known to management?---I think – not really. I think it was more people trying to be a bit discreet about it.

Before we go on, I’ll tender the video that has just been shown.


EXHIBIT #99 VIDEO RECORDED BY MR ZAMOLO

MR CALLAGHAN: There was obviously occasional enforcement. Well, first of all, sorry, the rule was that you shouldn’t have your phone in the centre, on the floor, while you were on duty. Is that – that was the policy, wasn’t it?---Yep.

COMMISSIONER WHITE: And would you leave your phone in a locker at the – when you came to work? Is that – was that the expected practice?---Yeah. You ..... your bag or in the locker, yes.

Thanks.

MR CALLAGHAN: But you’ve said, previously, in the interview with police at least, page 16.20, that on a couple of occasions you were asked to put your phone back in the locker?---Yep.

That happened more than once. That’s a yes?---Yep.

But were you ever actually disciplined for having your phone or using your phone whilst you were on duty?---No.

And the fact that it happened more than once leads to the question of whether there were any consequences threatened after the first occasion?---No.

No one said anything other than just?---Just, “Put your phone away.”

Just, “Put your phone away”?---Yep.

Not, “Don’t bring it again”, just put it away?---Just, “You know you shouldn’t have it down here, put it away.”

Clearly though, Mr Zamolo, on the occasion we’ve just witnessed you were using the phone to record an event?---Yes.


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And there were several other staff present?---Yes.

At the time?---Mmm.

You were making no secret of the fact that you were recording?---No.

Clearly, you would have had to have held the phone up in a conspicuous position in order to get the recording that you - - -?---Yes.

- - - obtained. On that occasion, did anyone say anything about the appropriateness of using your phone?---No.

Not only did you make no secret of the fact that you were recording the event, and notwithstanding the fact that you have asserted in your statement that you didn’t post the footage onto the internet or social media, you did in fact put that recording on Snapchat, didn’t you?---Yep.

And the very purpose of the – of Snapchat is to share with others images and videos that you find amusing or interesting; would you agree with that?---Yes.

So this event was a source of amusement to you?---Yes.

Did you get feedback from anyone else who thought it was amusing?---No. Not that I can remember.

Well, it must have been a topic of conversation amongst the other staff. There must have been comments about this outrageous thing that this child did?---There might have been. I don’t recall anything.

Was it a common enough occurrence for guards to use their phones to make recordings of things inside the Don Dale centre?---Yes, maybe. I’m not sure. I know other guards had their phones in there. What they used them for, I’m not sure.

Well, do you recall seeing another guard make another recording on another occasion?---No. I don’t recall seeing anything .....

Do you think that it happened?---I honestly couldn’t tell you.

If we can go to the interview at 301A, page 16.10, just have a read. Do you recall that conversation that you had with the police?---Yep.

Does that refresh your memory at all as to the practice of guards using their phones whilst on duty at Don Dale?---Yes. I mean, using their phones, they may have just been scrolling through Facebook or something like that.

I suppose the point about it being on – or the fact that you put it on Snapchat is that you don’t use Snapchat to keep a secret, do you?---No.


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You only use Snapchat if it’s something that is not only public but you really want to share with the world?---Yeah. Well, you share with your friends that you’ve got on Snapchat.

Alright. Not the whole world, but your personal world. The point being, I suppose, you made no attempt whatsoever to conceal the fact that you had made this recording?---Yep.

You agree with that?---Yep.

And indeed, in the statement that hasn’t been tendered today, but that you have made for the purposes of these proceedings, you have said – and I can get you a copy, if you need to, but I suggest to you that sworn that you have taken films and photos of detainees and put them on Snapchat. You go on and say:

I have done this a few times, each time with either the consent or at the request of the relevant detainees.

Is that right?---Yes.

So the posting of this particular video on Snapchat is not a unique experience?---No.

Well, we established that you used your smart phone to record things whilst you were working at the Don Dale centre. I’m going to ask you to look at another recording that you made or at least a slightly edited version of it. Could we please play the toilet incident.

VIDEO SHOWN

MR CALLAGHAN: Now, first of all, you recognise that footage?---Yes.

That’s a recording that you made?---Yes.

And it has been edited to the extent that after you opened the door into a toilet area and entered the toilet and approached an open cubicle door the film goes to black?---Yep.

But in fact your recorded the – from behind, a boy detainee whilst he was urinating; is that correct?---Yep.

And even though the screen went to black, we could you hear that you said, “Boy, what are you doing, you little gay dog”?---Yeah.

You agree with that. You would agree also that in the original footage the boy is not laughing or smiling?---No.


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You would agree he actually looks uncomfortable?---He was – it was late at night. He was tired.

Alright. Mr Zamolo, you would never walk into a public toilet, open a cubicle door and start recording a child, would you?---No.

You wouldn’t do that in someone’s home?---No.

And, in fact, if you ever did do such a thing as to attempt to record a child whilst urinating, you would expect a very strong reaction from any other adult in the vicinity, would you not?---Yes.

At the very least you would expect to have the phone knocked out of your hand?---Yes.

Or something like that, or an even stronger reaction, wouldn’t you?---Yes. That wasn’t actually recorded from my phone. That was like a watch that I just purchased, I think that day or the day before, and I was just playing around with it.

That doesn’t really affect the fact that recording it was utterly inappropriate, does it?---Yep.

Doesn’t really matter what device it was being recorded on, does it?---No.

And you’ve agreed that you wouldn’t do it anywhere else on the planet, would you?---No. The only reason I walked in because – because he was taking ages.

Well, it might - - -?---A lot of the times they do take their time, because they don’t want to go back to their rooms, so they will just dawdle, and then you’ve got a line-up of other kids waiting to go to the toilet.

You might well be able to explain why you were looking for this boy, but there is no possible explanation that would justify your recording him with any device, is there?---No.

Which leads me to ask again: what was it about working at Don Dale that made you think that this could be okay?---I don’t know. I – I – like I said, it was just a new watch that I was just playing with and I’d just been playing with it all day, just changing settings and just getting familiar with it, so I can’t even tell you if I even knew it was recording or not. I’ve got no idea. I didn’t even know it was on my phone.

Well, it was located on your phone. Was this watch synced - - -?---Yeah, it was synced to my phone.


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- - - to your phone. Are you seriously saying that you didn’t know that it was recording at the time?---No, I’m just saying if I knew that or not. I just don’t remember.

I tender that footage.


EXHIBIT #100 VIDEO RECORDING OF TOILET INCIDENT

MR CALLAGHAN: At the very least, Mr Zamolo, you must have been confident that if anybody had seen you recording this incident you would not have got in trouble for it?---Yep.

Excuse me for a moment. I’m going to show you another recording. Can we play the bed incident, please.

VIDEO SHOWN

MR CALLAGHAN: First of all, you recognise that?---Yes.

Again, that’s a recording that you made?---Mmm.

I will tender that before I forget.


EXHIBIT #101 VIDEO RECORDING OF BED INCIDENT

MR CALLAGHAN: Tell us where that was?---M block.

At what time of day?---I couldn’t tell you. Night time.

Bedtime for the boys?---Yes.

One of the boys is clearly hiding under his sheet - - -?---Yes.

- - - whilst that occurs. You’ve said, when questioned about this, that occurred in jest. It was all just a joke; is that right?---Yep.


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Did it occur to you that any of the boys might not have found it funny at all, but might have felt compelled to go along with it?--- ..... had a good relationship with the kids. That’s how they talked to each other, that’s how – you know, like, I wouldn’t have done it if I had thought that they would have been offended by it. Obviously, I knew them quite well, and so I knew that they’d take it as a joke, or I just assumed that they’d take it as a joke.

That assumption was really quite callous, wasn’t it?---Yeah.

COMMISSIONER WHITE: Are you suggesting, Mr Zamolo, that you would wake them up to say what you - - -?---No.

- - - thought was something funny to them?---No, I was actually just going to say goodnight to them because I was leaving shift, which I would do, like, quite often.

What time did that shift finish?---I can’t remember.

You have a fair idea, Mr Zamolo when your shifts finish?---The shifts finish about 11, but sometimes I would leave early. The wife would pick me up, but yeah, that’s – from what I - - -

Pretty late at night, though?---Yes.

They’ve been in – they’ve been in lockdown for the night for quite some hours by then?---Yes, they have, but they sit up talking a lot, a lot of the times.

Didn’t look like they were doing it there?---They were. They were in conversation. I wouldn’t have walked in – I don’t walk in and say goodnight to the kids if their lights are off and they are asleep. I don’t wake them up.

MR CALLAGHAN: Irrespective of the precise time, it was – it was bedtime?---Mmm.

Yes?---Yes.

That sort of language – that sort of behaviour would be utterly unacceptable in the place of any other adult putting a child to bed, wouldn’t it? If anyone did that at a dormitory, or a place where a child was billeting, or something like that, you would find it completely outrageous, wouldn’t you?---Yep.

What was it about Don Dale that made you think it was okay to behave like that?---I don’t know. It’s just – like I said, I had a good rapport with the kids. At the time it just didn’t really seem that inappropriate or that big a deal, but now I can see just how inappropriate it was.

And once again, you were recording it?---Yep.


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And you must have been doing that knowing that nobody would take issue with the fact that you were recording it?---Yep.

No one was going to get you in trouble for having your phone or whatever device you had and recording that incident and those words?---Yes.

You are aware, aren’t you, that there is an allegation that, again using your phone, you recorded a child masturbating in the shower?---That didn’t happen.

You reject the allegation?---Yes.

But you accept, don’t you, that there was an occasion when you pretended to record a child in the shower?---Yes. I may have just done it as a gesture to hurry him up, to get him out of the shower, but I never recorded no kids in the shower.

Well, are you accepting that you – you say you may have?---I may have – I may have showed him my phone and pretended to, but I never did.

And by pretending to, do you mean that you would have held your phone in a position to make it look as if you were recording?---Yep.

At a naked boy in the shower?---Yep.

And let’s even just stick with that, the fact that you say you were pretending to, and not actually recording. Once again, you would never do that at, say, the change room of a junior sporting club, would you?---No. But I’d never walk into a change room of a sporting club. I was working there. It was my job if they were taking too long. If they were – if I – yeah, if I could hear commotion sometimes, they’d jump in and share the cubicles ..... not allowed. So we would just stand there and then walk in and check, and walk out, walk in and check.

Well, is this getting close to answering my question, because I keep comparing these situations and saying you wouldn’t do it anywhere else, but you’ve just said, “Well, I wasn’t anywhere else, I was working there”?---Mmm.

Did you think it was okay to do this sort of thing because you were working there?---No. The reason why I walked in is because I was working there, like, it was my job to hurry them up. They were given five minutes to shower, sometimes they’d take 10, 15 minutes.

Yes?---Knowing we had, like, 20 other kids to shower.

And so did you think it was okay to pull your phone out - - -?---At the time, yeah, but now I can see it’s not.

It’s the sort of thing a bully would do, isn’t it?---I’m not a bully.


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Well, it’s a bullying sort of act to pretend to be recording a naked person, isn’t it; yes?---Yep.

You’re aware that there are three separate accounts, and I repeat we won’t be mentioning any names, but three separate accounts from detainees that are relevant to this allegation, two who’ve said that they saw on the screen of your phone vision of a naked boy, and another who said that he saw you in the shower with your phone facing towards a boy and the boy was telling you to get away. You’re aware of that – those allegations?---Yep.

You reject them, I understand that?---Mmm.

But what I’m going to suggest to you, Mr Zamolo is that – well, I suppose there are three propositions. First of all, you have filmed a child whilst urinating in the toilet; you accept that?---Yes.

You have actually held your phone up in the shower in such a way as you would hold it up if you were recording; you accept that?---Yes.

And that these separate individuals have said what they’ve said as I’ve just recounted to you; you accept that?---Yes.

I’m going to put it to you that it’s not a great leap from there – from that position where we consider all of those circumstances together, it’s not a great leap from there to the conclusion that you did, in fact, film a child who was, in fact, said to have been masturbating in the shower?---Yeah. Well, I didn’t do it, no.

Well, it is true – in your favour, I suppose – that the police investigated this allegation, didn’t they?---Yep.

And these matters were put to you in the interview to which we’ve been referring?---Mmm.

And it was apparent to you that they had spoken to the children, and that they had the footage that you had – that had been located on your phone?---Yep.

But you weren’t charged with anything relating to Don Dale, were you?---No.

The only charge that you did end up facing as a result of the police attention was in relation to some steroids that were found at your place when the police came to speak to you; is that right?---Yes.

Those steroids, those drugs are things that are commonly associated with the body building lifestyle; is that right?---In gym training.

Was that an aspect – was that aspect of your lifestyle something that was discussed between yourself and some of the detainees at Don Dale?---No. Not that I recall, no.


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You don’t recall discussing that with any of the children there?---No.

COMMISSIONER WHITE: Perhaps you need to be a little bit more precise whether it’s talking about gym work or whether it’s talking about taking steroids for body building. I think it got a bit blurred there, Mr Callaghan.

MR CALLAGHAN: Thank you, Commissioner, I am specifically talking about steroids. Did you discuss steroids with detainees at Don Dale?---No.

Were you using any other drugs during the period of your employment at Don Dale?---No.

COMMISSIONER WHITE: Do I have to give a warning to this witness at this point?

MR CALLAGHAN: Well, I think he would have protection .....

COMMISSIONER WHITE: Not so sure about that.

MR CALLAGHAN: The - - -

COMMISSIONER WHITE: At least I’m not so confident that I shouldn’t warn. After all, I would do it if it were in a court of law.

MR CALLAGHAN: Yes. Well, I have no difficulty with you giving a warning.


You can take it from me that you don’t have to answer that question - - -?---Yep.

If you think that by doing so you might expose yourself to the investigation of the police and perhaps the laying of charges for breaches of the law?---Yes.

MR CALLAGHAN: And you may bear that in mind when I ask you the next question, because also located on your phone were recordings of you - - -

MS JARDINE: Your Honour, I seek to object at this point on the basis of relevance in relation to - - -

COMMISSIONER WHITE: You don’t know what the question is, though.

MS JARDINE: I’ve got a fair idea, your Honour.

MR CALLAGHAN: I understand - - -

COMMISSIONER WHITE: We might have to wait until the question gets on the record, Ms Jardine.


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MS JARDINE: Yes, your Honour.

MR CALLAGHAN: I might just have a word with my learned friend and let her know where the question is going.

COMMISSIONER WHITE: Yes, do that.

MR CALLAGHAN: On the phone that was taken from you by police were recordings of you and others inhaling some white powder through the nostrils; is that correct?---Yep.

Mr Zamolo, the police officer who questioned you about these matters, Ms Engels, have you had any dealings with her apart from those involved in her investigation into you?---No. Not that I recall.

Any awareness of her presence in bodybuilding circles?---No. I met her when she came to my house. That’s the first time I’ve met her.

There was an interview between you which was recorded. You’ve seen that; you’re aware of that?---Yes.

Did you have a conversation with her after the interview?---I couldn’t tell you. I can’t remember.

It’s only last year. Still can’t remember?---Can’t remember.

Well, I might just summarise the effect of the evidence that you’ve given over the last hour, Mr Zamolo, and see if you agree with this as, effectively, a summary of what you’ve told us. We’re talking about the situation of detainees at Don Dale who were not in what you’ve called the “revolting, stinking” BMU, but just day-to-day Don Dale?---Yep.

Whilst under the care of untrained guards, who were themselves under weak management, children – or at least a child at Don Dale might have been sworn at; you agree?---Yep.

We’ve heard mention this morning of terms like “fucking slut”, “cunt”, gay dog”?---Yep.

They might have been, so you’ve heard, taken to an unobserved area so that they could fight?---Yep.

They might have been allowed to be dared into eating something that might have been excrement?---Yep.

MS BROWNHILL: I object at this point. I’m not sure that it’s a fair summary of the evidence, and the evidence already given will speak for itself. I can’t see the


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utility of putting it back to the witness or putting a reframing of the evidence back to the witness and getting him to agree to it.

COMMISSIONER WHITE: You might have to wait, Ms Brownhill, because I believe that – or I am of the view that Mr Callaghan has got a purpose – a forensic purpose in doing this. So perhaps let him go for a little while.

MS BROWNHILL: Then the witness shouldn’t be expected to agree with every proposition as it comes his way.

COMMISSIONER WHITE: Well, he’s nodding and agreeing as it goes along, so I don’t see that he’s discomfited by or unable to respond to it. I’ll let the questioning continue, Mr Callaghan.

MR CALLAGHAN: Thank you, Commissioner.

COMMISSIONER WHITE: You got up to the bird.

MR CALLAGHAN: I was just checking that the witness had agreed with that.

They might have been published doing that on Snapchat?---Yes.

They might have been published doing other things on Snapchat?---Maybe.

Indeed, whilst in bed and covering themselves completely they might have been invited to suck your dick?---As a joke.

At the very least they might have been led to believe that they were being filmed whilst naked and showering?---Yes.

And they might actually have been filmed whilst urinating?---Yes.

And here’s the point: that neither you nor anyone else that you know of was ever disciplined for any of that?---No.

You were ultimately disciplined and dismissed; is that correct?---Yes.

But not for any of those things that I’ve just listed. And in fact, Mr Zamolo, it became clear, when you were threatened with dismissal, it became clear that you really actually valued your job, didn’t you?---Yeah.

You – you wanted to keep it, didn’t you?---Yes, I did, yep.

And it follows, I would suggest to you, that you would not have done any of those things or you would not have allowed any of those things to happen if you had thought it was going to get you into trouble?---Yep.


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And, in fact, none of those things did get you into trouble?---No.

Thank you. Commissioners, that’s the questions for the moment.


MR CALLAGHAN: I should perhaps add Mr Zamolo is in that category of witness who has something specific to say about Mr Voller and, as with others in that category, it is proposed a fresh summons will issue in due course referable to - - -

COMMISSIONER WHITE: Yes. Thank you. Mr Callaghan, any of your colleagues wish to examine Mr Zamolo.

MR CALLAGHAN: I think leave has been granted to one, to Mr Lawrence.

COMMISSIONER WHITE: Thank you. Mr Lawrence.

MR CALLAGHAN: And NAAJA. And NAAJA, I’m sorry.


MR CALLAGHAN: I don’t know if they’ve sorted out an order between them.

COMMISSIONER WHITE: Mr Lawrence is the – I can’t see Mr Boulten here, so I think Mr Lawrence – and we hardly recognised you after your summer break.

<CROSS-EXAMINATION BY MR LAWRENCE [10.43 am]

MR LAWRENCE: I’ve aged considerably.

You were fired from the Department, weren’t you?---Yep.

And that was in relation to another incident, wasn’t it?---Yep.

COMMISSIONER WHITE: Perhaps you could explain to Mr Zamolo for whom you appear, Mr Lawrence.

MR LAWRENCE: Forgive me. Mr Zamolo, my name is Lawrence and I appear as counsel for the juvenile known as AD?---Yep.

Do you know who AD was?---No.

I’m wondering if he could be informed with a note or something to that effect. It would be - - -

.ROYAL COMMISSION 20.3.17 P-1416 C.L. ZAMOLO XXN©Commonwealth of Australia MR LAWRENCE

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COMMISSIONER WHITE: Your – do you have an instructing solicitor here in court?

MR LAWRENCE: Yes. Perhaps - - -

COMMISSIONER WHITE: I think your solicitor could tell him who that is.

MR LAWRENCE: Thank you.

COMMISSIONER WHITE: If she would do that.

MR CALLAGHAN: Someone from my team could - - -

COMMISSIONER WHITE: Well, I think - - -

MR CALLAGHAN: - - - pass that notice.

COMMISSIONER WHITE: Well, I think there is a solicitor here, and that’s probably - - -

MR LAWRENCE: .....

You saw that name?---Yep.

You recognise him?---Yep.

You remember the kid?---Yeah, I do.

You remember them being in the BMU unit?---I do.

Do you remember him asking frequently when he would be let out of the BMU unit?---Yep.

And you were unable to answer him?---Yep.

Because you didn’t know?---Yep. That’s correct.

In fact, nobody in management knew, did they?---No one knew.

MS BROWNHILL: How can he speak about management .....

COMMISSIONER WHITE: I had - - -

THE WITNESS: ..... they weren’t giving me answers.

COMMISSIONER WHITE: Yes. I had understood, Ms Brownhill - - -


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MR LAWRENCE: Well, they - - -

COMMISSIONER WHITE: Just a moment. I had understood the previous answer to be that he had taken it up with management and got no answer from them that was meaningful. That was his evidence.

MR LAWRENCE: That’s correct, Mr Zamolo?---Yeah.

Because you were dissatisfied with the conditions that these kids were suffering under in the BMU, weren’t you?---Yep.

You knew about the rules about 24 hours and 72 hours?---Yep.

And so you went up to management and said, “This is wrong, this shouldn’t be going on”?---Yep.

And they said, “Well, it has to continue”?---They just said, “Yeah, we can’t give you an answer, we don’t have one.” Basically, they – I couldn’t give nothing to tell the kids.

As far as you understood, would it be fair to say that you thought these kids were going to be in there indefinitely?---Yeah, I couldn’t tell you. I just – they were just there, and I couldn’t tell them when they were coming out.

And AD frequently asked when he was going to get out?---They all did.

They all did?---Yes.

And, “Why are we in here”?---Yes.

And they were getting upset as the days went on?---Yes.

And you’re of the view that they could have been psychologically affected by the conditions that they were suffering under?---Yes.

And you didn’t like it?---No. It also made my job difficult.

Yes. But you didn’t like it because you didn’t think it was proper?---No.

You didn’t think it was decent to put a child in conditions like that?---Yep.

You’d agree with that?---Yep.

And the conditions were terrible, weren’t they?---Yep.

There was no running water in any of those cells?---There – there would be, but then they’d sometimes turn it off if the kids would flood the cells.


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Well, that’s from the toilet?---Yes.

Yes. But there was no basin or tap or anything like that?---They did. I think some of the cells might have had bubblers, maybe one or two, maybe all of them. I can’t remember.

Well, AD was in cell 3?---Yep.

And there was no bubbler in there?---Okay.

You agree with that?---I – I don’t know. I can’t remember. I – I – I thought maybe one or two of them had bubblers, at least.

Had you been in it?---I had, but I just can’t remember which ones had them.

And they stank?---Yes.

The whole unit stank?---Yes.

And it stank of urine and excrement?---It just – it just stunk of just filth and rubbish.

Filth and rubbish?---Yeah.

And those kids you witnessed deteriorating during the period that they were in there – this is back in August 2014?---Mmm.

Were you concerned that there could be an incident as a consequence of what was going on in here?---Yeah. I mean, there could have been an incident any day, any given day in that place.

Yes. Did you – did you inform management that you thought that’s a possibility?---I just maybe would have told management that, you know, that they’re starting to get pretty rowdy. Only – just through frustration, I guess, of not knowing when they’re coming out. See the kids – it was always based on behaviour, so they knew if they behaved, then they would be rewarded, you know, like – so they might come out if they’d been good. So they’d behave for a few days, and – but still we’d have nothing to give them. Like, we couldn’t tell them when they were coming out, so they’d just go, well – to us and run amok, you know, like – because being good is not getting them anywhere. So – yeah.

Yes. There was no behavioural management plan for them, was there?---No.

And there should have been?---Yep.

And they were aware of that, weren’t they, the kids?---Yeah, they were.

They asked about it?---Yep.


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And they’d go through periods of behaving, doing everything right to no effect and then just go as you say – they’d weight tissues and throw it up onto the cameras to annoy the authorities?---Yes.

And then that would just get them into more trouble?---Yep.

So they were going nowhere slowly, backwards up a hill?---Yep.

And you witnesses this?---Yep.

You were their guardian, as a Youth Justice Officer?---Yep.

Did you feel bad about it?---Yep. But there was not much I could do about it.

You got sacked because of an incident that happened not long before the gassing incident; correct?---Yep.

I think that was an incident to do with a kid, Dylan Voller?---Yes.

Now he was in cell 1, wasn’t he?---Yeah, he was, yeah.

On his own?---Yep.

And AD, by the way, he was in cell 3 on his own, wasn’t he?---I can’t – look, I don’t know. No. If you say he was, he was.

Now, the incident concerning Dylan Voller happened on 15 August 2014.

MS BROWNHILL: I object to this questioning. I’m not – it’s unclear why my learned friend, who’s acting for AD, is (a) asking questions about Mr Voller and (b) there’s going to be a separate hearing in relation to Mr Voller issues.

COMMISSIONER WHITE: Yes. I understand that and alert to the problem, Ms Brownhill. I’m wondering why Mr O’Brien is not taking the objections and why the NTG is, but we’ll let that pass.

MR LAWRENCE: Well, I - - -

COMMISSIONER WHITE: Mr Lawrence, we’re not engaging with this body of evidence unless it affects your client.

MR LAWRENCE: Yes, I understand this demarcation process which is all very well, but this line of questioning is relevant to the treatment that my client received on 21 August by this gentleman and his colleagues.

COMMISSIONER WHITE: Right. Perhaps you can go to that.


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Now, the incident that we’re talking about on 15 August involved you and your colleague Ben Kelleher; correct?---Yes.

How long have you known Ben Kelleher?---At that time?

Yes?---Maybe a year, year and a half.

And he was a good mate of yours?---Yes.

A loyal mate?---Yes.

And he was a professional wrestler?---He was an MMA fighter, kickboxer.

Professional martial arts – mixed martial arts fighter?---Yep.

Trained in that art?---Yep.

For prize money?---Yep.

You went and saw him fight - - -?---Yep.

- - - at Kalymnos Hall?---Yep.

Did you go often to see this kind of thing?---Yes.

You enjoy it?---Well, yes, it’s a sport. Yes.

Do you do it?---No.

It’s a brutal sport, isn’t it.

MS JARDINE: Your Honour, I object at this point. The relevance hasn’t been - - -

MR LAWRENCE: Well, the relevance of this is to the situation that happened on 21 August involving the actions by the members of ..... Direction of Correctional Services to deal with a situation that they were met with.

COMMISSIONER WHITE: Continue.


Do you do it?---No, I don’t.

COMMISSIONER WHITE: No, he said he didn’t do it, Mr Lawrence.


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MS JARDINE: Sorry. I .....

COMMISSIONER WHITE: He enjoyed watching – he enjoyed watching it.

MR LAWRENCE: Right?---I just went to support my mate.

Yes?---Yeah.

How long had he been doing it?--- ..... he’d been doing it before I met him.

He was good at it, wasn’t he?---Yes.

He was a good fighter?---Yes.

And part of it involves self-defence, of course, doesn’t it?---Yep.

And it involves kicking in the head as well, doesn’t it?---Yeah, it can, yep.

You’re allowed to kick in the head, you’re allowed to punch in the head; that’s correct, isn’t it?---Yes.

And you don’t wear boxing gloves, as we traditionally know them, do you?---They do wear gloves.

Yeah. But they’re much lighter than boxing gloves, much less padding in them, isn’t there?---Yes.

So you have to be tough to do it, don’t you?---You’ve just got to have a big heart, I guess. I - - -

Well, you have to have a tough body to do it, don’t you?---I guess so. I don’t do it.

You do weightlifting?---I just – I just go to the gym. I don’t do body building. I don’t compete in any sport.

Alright. So back then were you doing weightlifting or going to the gym doing weights?---Yep.

And why kind of weight could you have lifted back then?

MS BROWNHILL: I object.

THE WITNESS: No idea.

MS BROWNHILL: Relevance of this questioning.

MR LAWRENCE: It’s exactly the same relevance as I’ve said earlier.


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MS BROWNHILL: ..... well, excuse me, we keep ..... that it’s relevant to things that happened on 21 August, but it’s not explained how, and we’ve had another 10 minutes of questioning and we’ve got nowhere near 21 August.

MR LAWRENCE: Well, I’m astonished that the learned Solicitor-General would require an explanation, because it’s so obvious.

COMMISSIONER WHITE: It is to me, Mr Lawrence. Continue, but look, this is a dramatic build-up, but we do have to get through our programme, and we know where you’re going. Perhaps you’ve set the scene adequately. The theatre is all well and good, but I think we really know now that you could go to the - - -

MR LAWRENCE: With the greatest of respect, I’m not doing this for theatre, I’m doing this for my client and his family who were treated in Don Dale in the manner in which they were treated.

COMMISSIONER WHITE: We understand that.

MR LAWRENCE: And they have directly instructed me to question these witnesses in this manner.

COMMISSIONER WHITE: You’re counsel, Mr - - -

MR LAWRENCE: There’s no theatre going on here.

COMMISSIONER WHITE: You’re counsel, Mr Lawrence. You bring to bear your own skills as a barrister. You don’t really need to paint the picture about kickboxing and the nature of it much more.

MR LAWRENCE: Right. Okay.


MR LAWRENCE: I’ll heed you, Madam Commissioner. Let’s go back to the incident on 15 August. Now, that involved Ben Kelleher and yourself paying Dylan Voller a visit in his cell; correct?---Yes.

And he was in his cell on his own, wasn’t he?---Yes.

And Ben Kelleher was furious, wasn’t he?---Yes.

MR ..........: In fact, the incident occurred on 16 August.

MR LAWRENCE: I’m indebted to my most learned friend. Okay. 16 August, Ben Kelleher furious?---Yes.

And he was furious as a consequence of something you told him?---No.


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He was furious as a consequence of something Dylan Voller has said?---Yep.

And he went to pay him a visit?---Yes.

And you went with him?---I was asked to assist him by him.

Right.

COMMISSIONER WHITE: Now, Mr Lawrence, it is important that you know that we’ve corralled this part of the evidence, and I really – I know that you’re doing something here - - -

MR LAWRENCE: Yes.

COMMISSIONER WHITE: - - - that you think is relevant to the subsequent action which concerns your client.

MR LAWRENCE: Yes. Well, I will go – I will go quick, but I do need to go to what happened in that cell so that I can put to this witness something in contradiction to what he said to this Commission earlier this morning.


MR LAWRENCE: So you went – on his request, he’s furious, you go in the cell; correct?---Yep.

Ben Kelleher tries to cover up the cameras with paper, doesn’t he?---Yep.

And then he stand over Dylan Voller and roars at him; correct?---Yes.

Swears at him?---Yes.

Threatens him?---I don’t recall any threats but yeah, he was just – he was just yelling a whole bunch of things at him.

And Dylan Voller is lying on his bed, cowering, clearly looking scared?---Yes.

And you’re standing there with your mate Ben to help him; correct?---I wasn’t there to help Ben.

Well, you went at his request?---I was there if Ben – if it got out of control. If Ben jumped on Voller, I was there to jump on Ben.

All right. Oh, really?---Yeah.

Well, this is way want to put to you. You’ve told this Commission earlier this morning you’re not a bully?---I’m not a bully.


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Are you serious?---Yep.

What on earth is that that was going on in Dylan Voller’s cell other than cowardly bullying?---I don’t know. They were Ben’s actions, not mine.

What chance has Dylan Voller got against Ben and you under those threats?---Dylan Voller was – never had to be scared of me.

What chance has he got physically in that situation?---Like I said, I was there because Ben said he was going to go talk to Voller. I asked another guard to come with us because of Ben’s skills and if Ben was quite angry like I – like we know, and then the other guard – I said, “If Ben gets carried away, we have to jump on Ben.” I wasn’t there for any other reason.

You have to jump on Ben?---If Ben attacked Voller, then we had to take – get Ben off Voller.

I see, so you were there in part - - -?---That’s why I asked another guard to assist.

Alright?--- .....

I see. Of course, you give an explanation about this to the Commissioner, didn’t you, because there was a complaint?---Yes.

That’s right. And the explanation that you gave to the Commissioner was a lie, wasn’t it?---It wasn’t really a lie. They weren’t my actions. I just told the Commissioner what Ben told me.

Yes. But it was untrue?---Well, how do I know if it’s untrue? I didn’t do it.

You saw it?---I saw it, and they asked, “Why did he do it?” I asked Ben why did he do it, he told me, and I gave them that answer.

Right. Which included that he was cleaning the lens of the camera with a tissue?---Yeah. But I didn’t do this. They weren’t my actions.

Are you denying that you lied to the Commissioner in your explanation of this incident?---I’m just stating that I just gave an answer that Ben gave me. Like, they asked what was he doing. I can only tell them what he told me he was doing. I didn’t do it. If they asked me what was I doing, I can tell them what I did.

Now, I asked you a question earlier and I can’t recall if you answered it or not, I think there was an objection, but back in August of 2014 when you went to the gym for training, what kind of weight were you capable of lifting?---I don’t know. I don’t push my body to the limit these days. I just go in and lift weights. I don’t .....


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COMMISSIONER WHITE: Would you have any idea of what weights you were lifting?---Like, what are we talking of – what exercise are we talking about? Like bench, squat, dead lift? I mean, there’s a whole range of different exercises and the weights are obviously – are different.

Mr Lawrence, you can perhaps select which of the various lifts that - - -

MR LAWRENCE: Yes. I will. I will.

COMMISSIONER WHITE: But please don’t go through them all.

MR LAWRENCE: No. No. I will.

Remember AD?---Yes.

Could you lift him?---I could probably lift him. Yeah.

Could you lift two ADs?---Maybe.

Now, before this incident happened – I’m talking about 21 August, right. You were present that night?---Yep.

Did you work that day? It was a Thursday?--- Yep. I was on dayshift.

You were on dayshift. Were you in the BMU?---Yep.

Can you remember AD complaining that day about when was he going to get out?---He might have. I couldn’t recall remembering that specific day, but they did complain a lot. Almost every day.

Almost every day. Were you aware then that AD had been in that cell for 17 days?---Yes. I was aware that he had been there for a long time. Yep.

Were you aware that when he was in that cell he was in it for 23 out of 24 hours every day?---No.

But that was the conditions for all of them, wasn’t it?---Yeah. Yeah. They didn’t get much rec time.

Well, they were only allowed out for a shower?---Yeah. I think they were allowed out for 20 minutes plus a shower. Yep.

And the shower’s in the area directly adjacent to the cells itself?---Yes.

So they don’t get out of the BMU?---No.


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Now, were you rang up by something to come out to Don Dale and assist with the situation?---No. They rocked up to my house and picked me up.

Who were “they”?---I think it was Jimmy Sizeland and Ben Kelleher.

And then you go got in the car and drove to Don Dale?---Yes.

What was discussed in the car?---I couldn’t tell you.

When you got there could be see and hear AD?---Not right away. I could hear him. Couldn’t see him.

You could hear him. Could you hear him saying, “I have been in the back cells for how long, bruz”?---Yes. Vaguely. I couldn’t tell you what I heard.

Can you remember him saying, “Yeah, but I have been stuck in here for how long?” Remember him shouting that out?---No.

You witnessed him through the windows?---Yes.

You could see him behaving?---Vaguely.

You could see he was angry and distressed?---Yes.

Throwing things around, smashing things up?---Mmm.

Lost the plot?---Yeah.

Now, when you were watching him like that, how many other Youth Justice Officers were there?---Heaps.

Heaps?---Heaps.

Eight?---More.

More?---Yeah. I don’t know. There were a lot.

Alright. Can you name them, please?---I couldn’t tell you who was there.

Well, can you try?---I could probably tell you. I think there was Jesse Parloo, Ben Kelleher, Jimmy Sizeland, Don Walton, Jermaine Toki. That’s all I could probably tell you that I know of that were there.

Thank you. And more?---There would have been more. Yeah.

And can you remember, he was banging on the door and one of your colleagues was saying, “This door’s not going to hold”?---No.


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Remember that being said?---No. I don’t remember that being said. Nup.

Can you remember somebody saying he’s going to be getting out next week; he’s supposed to be getting out next week?---No. I don’t remember that.

Can you remember somebody saying he’s a fucking idiot? He’s an idiot, bruz?---No. I don’t remember that.

Have you watched any of this footage?---I’ve seen it, like, on the news, but I haven’t watched it recently. I haven’t seen it for a while. No.

Did you watch it on the Four Corners programme?---I didn’t watch it. I just seen it on – like, when it was played on Facebook.

What about when you were preparing your statements with your lawyers; were you shown any of the footage?---Yep.

You were?---Just – just – well, just like quick bits and pieces, not – yes.

Yes?---Yes.

And did you recognise yourself on there?---Yep.

And did you recognise you saying things on it?---No.

Did you recognise your colleagues on it?---Yep.

Right. Okay. Now, can you remember somebody saying, “He’s an idiot, bruz”?---No. I don’t remember that.

Can you remember officers laughing while they were outside the doors looking at AD going off?---Yes.

Were you laughing?---I couldn’t tell you. I can’t remember.

Is it possible you were laughing?---Don’t know. Maybe.

If we can go back to that Thursday night in 2014, and you’re watching AD going off, can you remember: did you find it amusing?---Not – not AD going off. No. I didn’t find that amusing. It might have been just stuff that was said between staff that would have been funny. I don’t know.

Right. Can you remember one of your officers being injured?---Yes.

Were you present when that happened?---No.

But somebody told you about it?---Yes.


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Can you remember saying that, “He tried to climb through the window and I poked him back through”?---I never said that.

But can you remember someone saying that?---No.

Now, that happened?---Yep.

Do you know who it was that did it?---No.

AD thought it was you?---It wasn’t me.

It wasn’t you?---No. I wasn’t even in that room.

Alright. Well, have you discussed it with your colleagues?---No. I don’t – I’m not – I don’t keep in touch with any of them.

Haven’t you tried to find out who it was who poked him back through?---Sorry?

Haven’t you tried to find out who it actually was?---No. Why would I?

Okay. Did you see him trying to come through the window?---No.

Have you seen the footage of him trying to come through the window?---I’ve seen the footage. Yeah.

And there’s a whole load of officers below him, aren’t there?---Yep.

And let me put this to you: wouldn’t it have been feasible if not sensible to let the kid come through the window and there you have it, your problem, in the hands of the Youth Justice Officers?---I’m not sure. I don’t know, it wasn’t my call to poke him back through the window and I didn’t do it.

Well, never mind whose call it is, it’s your call today. I’m putting it to you now, right now. He’s trying to come through the window into the areas. It’s 1.6 metres. It’s not a great height and there’s several Youth Justice Officers standing there, attending on the scene. Wouldn’t it have been feasible, reasonable, sensible for him to just come down and there you have him, nicked, arrested?---Maybe. It could have been as simple as that, or he could have had – they don’t know what he had on him. He could have had weapons. He could have attacked staff. I guess – I have got no idea.

Well, there was other staff there apart from Youth Justice Officers, though, weren’t there?---There was Berrimah staff. Yeah.

Yeah. Prison officers?---Yep.

And they were armed?---Yeah. They were. They were all suited up.


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Can you remember saying – can you remember anyone saying, “Go grab the fucking gas and fucking gas them through here. Get Jimmy to gas them through here”?---I don’t recall hearing that. No. It may have been said but I don’t recall hearing it.

Were you involved in the decision-making of gassing them?---No.

Those prison guards, they were armed with shields, batons, helmets, leg pads, arm pads, boots; correct?---Yes.

So there’s heaps of Youth Justice Officers, there’s specialised trained prison officers fully armed, and AD’s wanting to come through the window.

[REDACTED INFORMATION]

COMMISSIONER WHITE: Perhaps you could just – we will strike that from the record.

MR LAWRENCE: I’m sorry. Forgive me. AD is trying to come through the window into that company?---Yes.

Wouldn’t that have been the way to end it?---Like I said, they may have taken it as he was coming in to attack them with weapons. I don’t know. I guess if he was coming to surrender that would be a different story. Then I guess they would let him through. I don’t know. I wasn’t even in that room when this took place.

Well, you’ve seen the footage; correct?---Yes.

And you’ve heard it; correct?---Yes.

And remember, one of them says, “No. Let the fucker come through, because when he comes through he’ll be off-balance, I’ll pulverise. I’ll pulverise the little fucker. Oh shit, that’s recording, eh?” Were you there when that was said?---No. I wasn’t in the room.

Have you heard it being said on the footage?---I have. Yep.

Who was it?---I have no idea.

You have no idea?---Nope. No idea.

You don’t recognise the voice?---I can’t even remember the voice.

Can you remember there was laughter?---Vaguely.

COMMISSIONER WHITE: I thought you said you weren’t in the room, Mr Zamolo?---From the recording,

MR LAWRENCE: From the recording.


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COMMISSIONER WHITE: From the recording.

MR LAWRENCE: Sorry. My fault.

COMMISSIONER WHITE: Yes.

MR CALLAGHAN: Commissioners, I’m constrained if only out of fairness to Ms Graham to point out that leave was granted on a narrow basis and at the time a period of 10 minutes was suggested. I was aware that there was a request that that be extended to 25 minutes. That was never resolved, but we are at that point now.

COMMISSIONER WHITE: Yes. Thank you. How much longer will you be?

MR LAWRENCE: Five. Five minutes.

COMMISSIONER WHITE: I was going to say promise but that wouldn’t be fair, would it?

MR LAWRENCE: Sorry?

COMMISSIONER WHITE: I was going to say, “Do you promise?” We will rise at 11.15 for the morning tea break.

MR LAWRENCE: Right. Let’s go.

COMMISSIONER WHITE: So you’ve got the parameters, Mr Lawrence.

MR LAWRENCE: I’m indebted to you once again, Madam Commissioner and Mr Commissioner.

There’s also a dog here, isn’t there?---Yes.

It’s not a drug sniffing dog; it’s an Alsatian dog?---Yep.

For security reasons?---Yep.

Do you know about the immediate action team?---No.

Look, the truth of the matter is that at one point during this incident, in fact, directly after the dog was barking, AD gave up. That’s true, isn’t it?---I have no idea. I don’t know if he gave up or not.

He wanted to come out. You were aware of that, weren’t you?---No. I was never told that he had surrendered and wanted to come out.

Were you aware that he was wanting to speak to Ben?---No. Well, I vaguely remember Ben trying to speak to him, but he was – he was far too angry.


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Who was far too angry?---AD.

AD? He was far too angry to speak to Ben Kelleher?---Yes. I think Ben tried but it just – he didn’t – I don’t know. I – the whole thing is just one big blur to me. It’s just bits and pieces.

Ben Kelleher, the mixed martial artist professional fighter?---Yes.

What, and AD was too angry to have a conversation with Ben?---He was too wound up to even care what Ben had to say. He just felt like it was all going to be rubbish, and he had just been mistreated and that we were just going to trick him.

Well, you might not be aware of this, but there is evidence, unequivocal evidence, that he asked to speak to Ben?---Okay. Yeah. Well, I’m not aware of it.

Right. Can I put this to you: were you scared of AD?---No.

There was no other prisoners out of their cells, was there?---No.

Just AD running amok?---Yes.

And he’s 14?---I think he was 13 or 14.

Yes. And you can lift up two of him; correct?---Yes.

And he’s barefoot, wearing a pair of shorts, nothing else; correct?---The footage showed that he had weapons.

Weapons?---Well, he was hitting the door with something. Something metal.

There was a fire extinguisher. He used a fire extinguisher?---That could be considered a weapon.

Yeah. Sure. Sure. And I think he had a piece of aluminium strip, light fitting?---Yes.

Okay. Alright. Were you scared of him?---I mean, I – I wouldn’t go in there while he’s got them weapons.

Well, that’s what I want to put to you. Why couldn’t you and Ben just go in there?---Because it’s – it’s part of our job where we just can’t put ourselves at risk. We can’t just go in there blind, not knowing what he has, or how angry he was. There was a good chance he would stab us with that or hit us over the head with the fire extinguisher, so, no, I didn’t go in there.

Well, I said - - -?---And I am only under instruction by my supervisors. I can’t just walk in there.


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Well, I suggest to you that you, with your strength and - - -?---My strength has nothing to do with my job.

And Ben, with his fighting ability, including expertise in self-defence – you and Ben, never mind the heaps of other ones that were there, never mind the immediate action group that were shielded up and battened and helmeted, never mind them, you and Ben could have went in there and just grabbed AD and stopped that situation very easily?---We were instructed not to. We have to – it’s not up to us. We can’t just take charge and walk in there. We’re just YJOs.

I appreciate your instructions, Mr Zamolo, but I’m asking you now as a man and witness here now, just go in there, never mind being an officer of the department or whatever, you and Ben confronted with 14-year-old barefoot AD?---With weapons.

With a weapon, maybe. You two could have taken him easily?---I guess so but - - -

End of story. No gas, no dramas, he’s arrested, he’s nicked, he can calm down. That could have happened easily?---I guess so, but at the same time we were also putting ourselves at risk and we could have copped a fire extinguisher over the head.

It was scary for you, then, was it, that prospect?

MS JARDINE: I object. I object.

THE WITNESS: Sorry? A fire extinguisher over the head .....

MS JARDINE: I object. You don’t have to say anything.

COMMISSIONER WHITE: No. Just don’t answer anymore.

MR LAWRENCE: Alright. I will move on.

COMMISSIONER WHITE: Well, not for much longer, Mr Lawrence.

MR LAWRENCE: Let me just ask you this: you witnessed this incident as best you could from various vantage points; correct?---Yep.

Did this happen: five detainees escaped their cells, caused significant damage, and assaulted staff with shards of glass, bricks and steel poles?---No.

Did you write that report?---I don’t remember writing that report.

Are you aware that that report was written by Corrections and given to the police within five hours of this incident?---No.

Sorry?---No. I wasn’t aware of that.


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That report is totally inaccurate, would you agree with that?---With the five detainees coming out, yes.

Bricks, steel poles, five detainees; that’s wrong, isn’t it?---Yep.

It’s untrue, isn’t it?---Yep.

Thank you.

COMMISSIONER WHITE: Thanks, Mr Lawrence. We’ll take a 20 minute adjournment now. Thank you.

ADJOURNED [11.16 am]

RESUMED [11.42 am]

MS DWYER: Your Honour, and Commissioner, just for the transcript, my name is Dwyer, I appear on behalf of the north Australian Aboriginal agency, NAAJA.

COMMISSIONER WHITE: Thank you, Ms Dwyer.

<CROSS-EXAMINATION BY MS DWYER [11.42 am]

MS DWYER: Mr Zamolo, you gave evidence earlier that you were interested in this job as a Youth Justice Officer because your cousin Luke was working already at the centre at Don Dale; is that right?---Yep.

Did you know anybody else who was working as a Youth Justice Officer before you started?---Yep.

Who did you know?---Chris Boyce and Sam Coonan.

Okay. And Sam Coonan, did you say?---Yep. Sam Coonan.

How did you know them?---Just mates over the years.

Mates through the gym in part?---Just – just mates.

Were they guys that went to your gym?---No.

Alright. You didn’t know Ben Kelleher before you started?---No.

.ROYAL COMMISSION 20.3.17 P-1434 C.L. ZAMOLO XXN©Commonwealth of Australia MS DWYER

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You gave evidence that some staff members refused to work at the BMU when you were there at Don Dale?---Yes.

And that meant that a small group of guys, primarily, were working at the BMU together on regular shifts; is that right?---Yes.

And did that include Ben Kelleher?---Yes.

And John Walton?---Yes.

And who else in that group?---That would be Chris Boyce, Sam Coonan.

And as a result of that, and the fact that you knew Chris and Sam beforehand, did you become a pretty tight team?---Yeah, I guess so.

Alright. And there’s a lot of camaraderie that builds up in working in a difficult environment; do you agree with that?---Yes.

And so you became close mates at work?---Yeah. I mean, we were always close.

Okay. And close mates outside of work?---Yep.

And in that context, did you hear yourself referred to as the “boys’ club”?---No. I mean, I heard of something of the boys’ club but it was just all in – it was just a joke, like just the boys mucking around.

But that was something that you wouldn’t dispute, would it, that you and Sam, Chris, Ben, John Walton were a bit of a boys’ club working together?---I guess so.

And so it wouldn’t surprise you if you were given that name?---I wouldn’t be surprised, no.

Did you socialise with that group of men at the gym, that’s Ben Kelleher, John Walton?---They didn’t train at my gym.

Did any of them train at your gym, any of the Youth Justice Officers?---No.

One of the interests that you had in common or developed in common was semi-professional fighting; is that right?---Sorry. I’ve – I’ve never done any sort of fighting.

Okay. I’ll withdraw that. I will ask it differently. Ben Kelleher had been involved in fighting; is that right?---Yes.

What sort of fighting was that?

MS BROWNHILL: Your Honour, I object.


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COMMISSIONER WHITE: We’ve heard this – we’ve heard this, this morning, at inordinate length about the kind of fighting that Mr Kelleher did. So perhaps you can assume we can remember the answers.

MS DWYER: Thank you, your Honour. Did you attend the fights that Ben Kelleher was going to?---Yeah. I was a part of – I was just a part of his support crew.

Okay. And were any other of the youth officers as part of his support crew?---Yes. Not really as a part of his support crew, but they were there to support him as a mate.

And who were they?---John Walton, Chris Boyce, Sam Coonan. Like, just – I guess ..... whole department.

That’s another reason that you became so tight, going to see Ben in the fighting arena?---Yeah, I guess so.

And was that group of friends also friends on Snapchat?---Yeah. Yep.

Did any of the other Youth Justice Officers that you’ve just mentioned that you were friends with post any videos of young people from Don Dale on Snapchat?---Not that I recall, no.

Did those officers that you’ve just referred to reply to videos that you posted on Snapchat?---I can’t recall.

Certainly none of those officers ever suggested to you that it was inappropriate, any of the videos that you posted on Snapchat?---No.

You were asked about the interview process when you first joined Don Dale?---Yep.

Who interviewed you; do you remember?---I think it was Lenny D’Souza and Barrie Clee, I think. I’m not 100 per cent.

Did you have to do a Working with Children Check as part of your work?---Yep.

Were you told about the sort of skills that would be required in working with children?---No.

Did you have any experience working with kids yourself?---Not working with kids, no, I’ve got four kids of my own, but not working with kids.

You didn’t have any children at the time you started working in the job?---I had three.

I see You’ve never been employed or in any volunteer or – I withdraw that, you’ve never been employed or volunteer in any way working with children?---That’s right.


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Had you had any experience in working with Aboriginal or Torres Strait Islander people?---No.

Were you asked about that in the interview, whether you had any experience?---I can’t remember if they asked that question.

By that stage you had already had an interest in bodybuilding; is that right?---No. I’ve never had an interest in body building, I just have an interest in the gym. Not the sport itself.

Did you have a similar physique back in 2012 to the one you do now?---I was maybe chubby, fat – not fat, but not – not the same, no.

And what was different about it?---I was larger.

Did anybody suggest during the interview process or afterwards that that would be an asset for you working at the - - -?---That was never mentioned, no.

You said earlier that your training was inadequate?---Yep.

Did you receive any cross-cultural training, that is working with Aboriginal or Torres Strait Islander people?---Yeah. I think – I think some gentleman come down for maybe a couple of days to speak about different cultures and whatnot.

Do you feel like that was helpful to equip you working in the detention centre?---Not really.

Did you receive any training in working with kids who were from difficult or disadvantaged background?---No.

Do you think that would have been helpful?---Yep.

Did you receive any training in working with children who were at risk of suicide or self-harm?---No.

Do you think that would have been helpful?---Yep.

Did you see any incidents or hear any threats of suicide or self-harm while you were working at Don Dale?---Yeah.

Did you know how to deal with them or did you - - -?---We just dealt with it.

How did you deal with it?--- .....

How did you deal with a threat to – of made by a child to - - -?---You just speak to the child.


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What would you speak to them about?---I don’t know. Ask them why, just go from there.

Did you receive any instruction from supervisors or management about what you did in terms of referring a child who threatened suicide or self-harm to medical personnel?---I don’t think so. I can’t remember.

Did you ever refer a child who threatened suicide or self-harm to a doctor or nurse?---I think we would – we just report it to the SS and then they refer it to medical.

Do you have any memory of doing that?---No.

Mr Zamolo, at any time after you got the job, did anybody in management query your suitability for the job?---No.

Did anybody in management or supervisors ask you about whether you had a background in drug dealing?---No.

At no stage when you worked at Don Dale did anybody - - -?---I had a police check.

Yes?---Yeah, that’s about it.

My question is slightly different. Did anybody in management or your supervisors ever ask you, after you got the job, whether or not you had in fact been involved in drug dealing?---No.

Did anybody ever ask you after you got the job, or while you were still working at Don Dale up until October 2014, whether or not you used steroids?---No.

Were you using steroids during the period that you worked at Don Dale?

MS BROWNHILL: I object, your Honour.

MS DWYER: It’s clearly relevant, your Honour, and there’s a basis for it in the materials?---There’s all different reasons why someone would use drugs.

COMMISSIONER WHITE: That’s – don’t answer that question. There are some categories of steroids that are unlawful to be used, so I need to warn the witness that he need not answer the question.

Mr Zamolo?---I would rather not answer the question. No. Sorry.

COMMISSIONER WHITE: Well, you know what I’m going to warn you about, don’t you, that you don’t need to answer questions if you think that you might implicate yourself in some acknowledgement that you’ve committed a crime and you know that some steroids are prohibited substances?---Yes.


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Alright. If you want to talk to your own solicitor about it I will allow you to do that, if you want to, but if you’re comfortable about making your own mind up about it you can do that?---Okay. But do I have to answer the question?

COMMISSIONER WHITE: Not on that reflection, if you don’t want to?---No.

MS DWYER: Your Honour, with the greatest of respect I think the witness does have to answer the question. Section 7C of the Royal Commissions Act provides him with a protection as to information being used elsewhere, but it’s my understanding – I can be corrected by my learned friend – that he does have to answer the question. I ask that he be directed to answer the question.

COMMISSIONER WHITE: You’re quite right – you’re quite right. I’m not extrapolating my – yes, Ms Brownhill. Do - - -

MS BROWNHILL: He has a reasonable excuse and the definition of reasonable excuse in my submission would include the privilege against self-incrimination.

MR CALLAGHAN: It’s actually section 6A(2):

A natural person is not excused from answering a question that the person is required to answer by a member of the Commission on the ground that answering the question might tend to incriminate the person or make the person liable to a penalty.

There may be other provisions of - - -

COMMISSIONER WHITE: There are – there are.

MR CALLAGHAN: - - - relevance, but that is one that appears immediately applicable.

COMMISSIONER WHITE: Yes. Just let me have a look at it. Do you accept – have you got a copy of the Royal Commissions Act, Ms Brownhill.

MS BROWNHILL: I’m looking at it on the screen, Commissioner.

MR CALLAGHAN: 6DD was the one I was thinking of this morning.

COMMISSIONER WHITE: When I overruled you.

MR CALLAGHAN: Well, I wasn’t sufficiently confident to press it, but that was the protection I was thinking of.

COMMISSIONER WHITE: Yes. What’s your advice to the Commission?


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MR CALLAGHAN: If relevance can be demonstrated, then the question should be answered.

COMMISSIONER WHITE: Yes. Thank you.

I might need you to forget that warning I gave you?---Yes.

And I will leave it to Ms Dwyer to demonstrate that the question she’s asking is relevant to the terms of the Commission.

MS DWYER: Mr Zamolo, do you recall that sometime in 2015 there were some substances seized from your house?---Yeah.

And that included testosterone; is that correct?---Correct.

And you did not have a legal permit to possess testosterone, did you?---No.

And you had been using testosterone to aid your body building, is that right?---Yep.

Why had you been using testosterone?---Because I had been to the doctors and I had blood tests and the results came back I had almost non-existent natural testosterone in my body, which caused me to be very fatigued and sleep a lot, so I had to take tests.

Did you – would any doctor prescribe you with testosterone?---They would, but I was turned down by every doctor and referred to by the doctor to another doctor just based on the way I looked.

So in fact you could not get testosterone; is that right?---No, they wouldn’t give it to me.

Okay. And you say based on the way you looked. Do you mean to infer that because you were someone of large build?---They assumed that I was using it for body building.

So how did you obtain the testosterone?

COMMISSIONER WHITE: Is that relevant?

MS DWYER: Well, I withdraw it.

During the period you were working in Don Dale, from October 2012 through to – well, I withdraw that. From 2012 to 2014 were you using testosterone?---I may have been.

Do you accept that testosterone assists you to bulk up and achieve the physique that you’re able to?---If you take massive amounts of it, yes.


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Do you accept that the testosterone you took assisted you to bulk up and achieve the physique that you’ve got?---No, because I wasn’t taking massive amounts, I was taking just enough to get my test levels right.

Were you taking any other – well, I withdraw that. Were you taking steroids other than testosterone that you’ve told the Commission about between 2012 to 2014?---Not that I can recall.

Could you just think hard about that. Is that your final answer? Not - - -?---I don’t remember. I don’t know.

Is it possible that you were doing that?---I guess so, maybe.

Are you – have you ever been told of any side effects of testosterone in terms of acting on your mood?---Yes.

What are they?---I guess road rage, anger, but that’s – again, that’s like from massive amounts, steroid abuse. I don’t take mass amounts.

What amount testosterone were you using between 2012 and 2014 when you were working at Don Dale?---Just enough to keep my test levels up.

What are the - - -?--- .....

COMMISSIONER WHITE: Just a moment; there’s an objection.

MS BROWNHILL: Your Honour, we’re getting far from what the ambit of what this Royal Commission is looking into, in my submission.

COMMISSIONER WHITE: I think Ms Dwyer would disagree with that, but would you – you will need to answer the objection, Ms Dwyer.

MS DWYER: Your Honour, I do disagree with that. I think it’s spot on that this Youth Justice Officer was using a substance which was illegally obtained, and may have impacted on his moods, is of great interest. Also interest what management and supervisors knew of the suggestion that he was using steroids and as my learned friend may know – Counsel Assisting certainly does, there’s information that will be put to management and supervisors about what they did know about that. That’s highly relevant.

COMMISSIONER WHITE: Thank you. Well, yes, continue. I mean, Mr Zamolo is saying well, he wasn’t taking the dosage that would induce this. So that’s his answer to your question.

MS DWYER: Yes. I’m going to ask him what that dosage was so that we can get some professional help about whether it would have impacted.


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COMMISSIONER WHITE: Yes, sure.

MS DWYER: Mr Zamolo what was the actual dose of testosterone that you were using in October?---Small amount, 1 mil every third week.

And how were you using that? Were you injecting it?---It’s injectable.

And were you injecting it yourself?---No.

How were you injecting it?---My wife was injecting it for me.

Did you ever change your pattern of use of testosterone at any stage between 2012 to 2014?---No.

Do you know any workers at Don Dale, while you were a Youth Justice Officer, who had links to Hells Angels?---No.

Do you – I withdraw that. Were there any of the young people who were detainees who had access to your Instagram account when they came out of custody?---No.

Were you ever befriended any that you know of?---Some of them may have added me on Facebook. I didn’t even have Instagram.

Snapchat. Were you friends with some of the detainees on Snapchat?---No.

When they added you on Facebook, you had to accept them as a friend; is that right?---Yes.

And you did do that?---Some I may have, yeah.

Who were they?---I couldn’t tell you. I don’t know.

Were the photos that you post on Instagram or Snapchat similar to the ones you post on Facebook?

MS BROWNHILL: Well, your Honour, he said he didn’t have an Instagram account at that time.

MS DWYER: I withdraw that.

Are the photos on post on Snapchat similar to the ones you post on Facebook?---Sometimes.

Did you ever post any photos or videos of detainees on Facebook?---No.

Do you remember that, do you?---Yes.


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You remember that you didn’t do that?---That’s how I remember it, I don’t recall ever doing that.

Is it possible that you did do that, given what you’ve told us about your memory being so poor?---I don’t know. It’s not something I would do.

I’m going to show you this photograph.

MS BROWNHILL: Your Honour, I object to the showing of the photograph.

MS DWYER: I’ve shown my learned friend a copy of the photograph, your Honour, and might I hand it up. The relevance of it, your Honour, is that it’s – I’m going to ask whether or not any photographs similar to that were posted on Facebook. If they’re accessible to the detainees it’s relevant as to how the detainees might see and/or perceive Mr Zamolo in detention.

COMMISSIONER WHITE: That seems a bit – it seems a bit – a bit of a – I can think of another way that you might make it relevant. What’s the date of that photograph?

MS DWYER: I’m going to ask – that’s the first question I will ask.

COMMISSIONER WHITE: I think if you just show it to the witness and ask that question, and then you could ask what I would rule would be a relevant following question, the dates fit.

MS DWYER: Thank you. I show the witness that photograph then.

MS BROWNHILL: Your Honour, as I understand it that is a photograph taken off Instagram and the witness has indicated he did not have an Instagram account at the time that he was working at Don Dale ..... about the photographs.

COMMISSIONER WHITE: Yes. I don’t – well, the line of questions that I would be inclined to permit doesn’t – that’s not relevant to it, so you ask the question about the date of the photo.

MS DWYER: Thank you.

Mr Zamolo, can you have a look at this photograph, please?---Yes.

You recognise it?---Yep.

When was it taken. I don’t know. Maybe late last year.

Why was it taken?---It’s just a selfie.

COMMISSIONER WHITE: I don’t - - - - - -?---That’s not a - - -


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I think that that’s not relevant. Did you look like that when you were a Youth Justice Officer. Was that your general physique? The look?---No.

In what way has it - - -?---I was a lot chubbier when I was a Youth Justice Officer. I’m a lot thinner here.

Okay. Well, I think it’s not relevant then.


COMMISSIONER WHITE: Thank you. Perhaps you can just return that photograph.

MS DWYER: Mr Zamolo, did you post photos of you in bodybuilding or – I withdraw that – in gym workout mode on Facebook at the time that you were working at the detention centre?---I don’t know. You mean, like, photos in the gym training.

Yes?---I guess so. Maybe, I don’t – I’ve got no idea.

Did any detainees ever respond to any of your posts on Facebook?---Maybe.

It wouldn’t surprise you if they did?---No.

It wouldn’t have seemed to you to be inappropriate if they did?---I guess not, no.

Did anybody ever instruct you between 2012 to 2014 about the importance of maintaining boundaries as a Youth Justice Officer with detainees?---No.

Do you think it would have been helpful for you to get that sort of instruction?---I guess so.

Did anybody ever instruct you about the – about how to use social media when you were working as a Youth Justice Officer?---No.

By social media, I include in that Instagram or Snapchat or Facebook. You never received any instructions over the use of those?---No.

Do you think that would have been helpful for you to understand the boundaries?---Yep.

You’ve been taken to a number of instances where you recorded things on your phone. I’m not going to go back through them for the same purpose. I just note that that includes the video where the child ate something, and you said “Eat that little bit of shit, go, go, go”?---Yep.

You remember that.


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MS BROWNHILL: We can all remember the evidence. Do we have to hear it again from my learned friend.

COMMISSIONER WHITE: Mr Brownhill, I’m sure Ms Dwyer will get to the question, and there isn’t too much need to repeat it, given the time restraints we have.

MS DWYER: I know, your Honour, but I’ve got to be able to ask – to introduce the question, and that’s my purpose.

You recall that video, Mr Zamolo?---Yes.

When the child was eating the substance that he was eating, it occurred to you that it might be faeces, didn’t it?---We didn’t know what it was. He just seen it on the table. He – it was just something that he just was doing at the time.

It occurred to you, though, that it might well be poo, didn’t it?---It could have been anything.

Okay. Well, you said to him, “Eat that little bit of shit. Go, go, go.” So you had to have known it might be fees ice?---That’s just all for the camera. Just for the joke. It’s all just - - -

But it did occur to you it that might well be poo?---It occurred to me that it could have been anything.

Okay. Including poo?---Including poo. Anything.

In that case, did you think about the health consequences for that child of eating faeces?---No.

When you – you’ve said that you posted the Instagram; is that right, that it was posted on Instagram?---No.

It was posted on Snapchat?---Yep.

Did it occur to you at the time that it might be humiliating for that child?---Not really. He was – he was having a good time. He was laughing.

So you just thought it would be funny?---It was just a goof, yeah, just.

Okay. And you gave evidence that you filmed a child in the toilet?---Yeah.

Did it occur to you that that might be humiliating for that child?---No.

And you gave evidence that you at least pretended to hold the phone up in the shower and pretend to video a child in the shower; is that right?---Yeah.


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And was that because you suspected that they might be masturbating?---No. It was just because they were taking ages and I was just trying to get them out so I could get the next kids in the shower.

Did it occur to you that that video might well be humiliating for that child?---There was no video.

Did it occur to you that having that child think they were being videoed - - -?---At the time – at the time no, it didn’t occur to me.

Does that occur to you now?---I can see now how it was already inappropriate. Yes.

Did you ever post anything of the detainees doing anything positive, playing basketball, art?---I took photos of the kids playing football.

Did you ever post any of those videos?---Only on Snapchat. I never posted anything on social media.

There’s an incident you recall – you’re aware we’re not using the names of any of the children?---Yes.

There’s an incident of a female detainee where she’s told the Royal Commission about you using her hands to slap her face; do you recall that?---Yes.

You say to the Royal Commission that was just you mucking around, is that right?---We were just being playful. I wasn’t really slapping her belly, touching her. It was just – again, we were just being playful.

And you were saying, “Stop slapping yourself, stop slapping yourself”, were you?---In a joking manner, yep.

While you were using her hands to slap her face?---Yeah.

Did it occur to you - - -?---She was laughing, by the way.

Did it occur to you at the time that that was crossing boundaries?---We were just being playful. At the time, no, I didn’t think I was crossing a boundary.

What do you think now?---Even now, again, it is what it is, we were just being playful. She was laughing. You know, I guess I wouldn’t do it now knowing what I’m going through, I wouldn’t – I wouldn’t even say one word to them, if I was working there today.

Did you ever receive any instruction while you were working as a Youth Justice Officer about when you should be touching female detainees?---No.


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Do you think now that it is inappropriate for you to, as a Youth Justice Officer, to use the hands of a female detainee to slap her face?---Yeah, if it was in like – if it was like a serious – if I was doing it to hurt herself or something, but - - -

What about in jest. Do you think that’s appropriate?---I guess not.

Do you think it would have been helpful for you to have some instruction from management or supervisors as to the circumstances in which you should be touching female detainees and how?---Yep.

Can you see that that might have been humiliating for her in those circumstances?---Yeah.

Can you see she would have been powerless in those circumstances?---Yeah. I mean obviously I wouldn’t have done it if – if she wasn’t laughing and I felt that she was – felt uncomfortable in any way.

Who else of the Youth Justice Officers were there at the time that you were using that child’s hands to slap her?---I have absolutely no idea.

Which block in Don Dale?---It was in J block.

And was that at night time or day time?---I couldn’t tell you.

Did any – it was witnessed wasn’t it by other Youth Justice Officers?---It would have been witnessed, like, yep – I mean, that SS office is right – overlooks J block.

So would it have been witnessed by a supervisor of yours at the time?---Possibly.

Did anybody ever tell you that you had behaved in a way that was inappropriate during that incident?---No.

COMMISSIONER WHITE: Much more, Ms Dwyer?

MS DWYER: I’ll do my very best to limit it to five minutes, your Honour. I’m conscious of the time, and grateful for the latitude.

Sir, you have told my learned friend Counsel Assisting about comments you made where you swore?---Yeah.

One of those included the comment, “Suck my dick. Who wants to suck my dick”?---Yeah.

Do you agree with me that if a detainee had said something like that, that would have been punishment – that would have been conduct capable of punishment?---Possibly.

Might have even been sent out the back cells for a comment like that?---Possibly.


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Did you ever receive any instruction doing – during your training as to the circumstances in which you could swear or did you ever receive any instruction that you shouldn’t be swearing in front of the children?---I don’t recall, no.

Can I ask you to accept that one of the recurring themes for the Royal Commission is children not understanding what the rules were and not understanding when they would be punished. Do you accept that?---I don’t know.

Well, can you understand that some of the children would have difficulty in trying to work out what the rules were in Don Dale during the period you were working there?---Yeah, I guess so.

You agree that kids couldn’t have phones in the detention centre?---Yeah.

But you’ve given evidence that the guards did?---Yep.

Including yourself?---Yep.

And kids couldn’t swear in the detention centre, could they?---They did – well, they did.

They weren’t supposed to?---They weren’t supposed to, but they did.

It was a breach of the rules if the children swore?---It – it should be, but it wasn’t.

Okay. But the guards swore?---Yep.

Do you agree that if a child had walked into the toilet and said, “Hey, what are you doing you little gay dog” to another child he would have been sent out in the back cells for that?---Maybe.

And kids couldn’t lose their temper and throw food, could they?---They did.

But that was a conduct issue. They would be punished for that?---Yeah.

But Ben Kelleher lost his temper and threw food, didn’t he, at Dylan Voller?---I guess so.

Can you see how confusing it would be for those children if the very conduct that they’re punished for is being exhibited by guards in the detention centre?---Yep.

Can you see how that might cause those children to act out?---Yep.

Can you see how that would have the opposite effect to building rapport with those children?---Yep.


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But you’ve given evidence that you were trying to build rapport at various times?---And it was just one way of building rapport, and it worked, so - - -

Looking back now you accept that you were too immature for that job as Youth Justice Officer?---Yep.

And you were ill-equipped personally and emotionally to deal with it?---Yeah.

And you were undertrained?---Mmm.

Agree?---Yep.

Do you think that there’s any training that you could have been given at the beginning of your work at Don Dale which would have allowed you, with your personality, to work within Don Dale, if you had been given better guidelines?---I guess so.

You – final topic. You wrote a letter to Mr Middlebrook in 2015, didn’t you, asking to be reemployed?---Yep.

Did you get any response?---I can’t remember.

In that letter, for the benefit of the tribunal, DAG.0031.00161.7168. It has come in late in the tender bundle, in that letter to Mr Middlebrook of 7 September 2015 you say to him:

Please know that shortly after my termination I ceased having any conduct with that former Youth Justice Officer.

Are you talking about Ben Kelleher there?---Yep.

You say:

I’m happy to advise you that, still to this day, have no affiliations with him.

Is that correct?---I guess so. I can’t remember.

I – I’m sorry?---I can’t remember.

You say to Mr Middlebrook:

I believe that the incident and his actions following that illustrated to me many wrongdoings.

Correct?---Yep.

In relation to that you’re talking about the incident in October 2014?---Yeah.


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August 2014; correct?---Yeah.

And it has opened your eyes and you’re now surrounding yourself with positive good hardworking people; correct?---Yeah.

Did you – what did you mean when you said to Mr Middlebrook it illustrated to you many of the wrongdoings?---I don’t know. I was just trying to get my job back.

Well, were you telling the truth to Mr Middlebrook when you wrote that - - -?---I can’t even remember writing the letter to be honest with you.

You in fact – as a result of being terminated from your employment, you did have a realisation about all of the wrong things that were going on in Don Dale, didn’t you?---Well, I mean – you know, you put yourself in that situation, and you can see how wrong it really looks, but you don’t really know until you’ve worked with these kids and you’ve spent so much time with them.

It wasn’t just you who was behaving inappropriately from the Youth Justice Officers, wasn’t it?---People were just working there and dealing with it the best they knew how.

Without any proper support?---Yeah.

From management or supervisors; correct?---Yeah.

Nothing further. Thank you.

MR CALLAGHAN: Commissioners, just excuse us for a moment.

COMMISSIONER WHITE: Don’t we have to - - -

MR CALLAGHAN: That’s what I’m trying to ascertain, whether that’s necessary. There have been some developments since we resumed.

COMMISSIONER WHITE: .....

MR CALLAGHAN: So I’m waiting on the latest information. I understand that the vulnerable witness is available and should be called now, which would mean adjourning to reconstitute the court, which would mean standing Mr Zamolo down. There is still one further party with leave to cross-examine and his own counsel to re-examine.

COMMISSIONER WHITE: Thank you. I’m sorry that we need to do that. Ms Graham, you’re waiting, aren’t you.

MS GRAHAM: It’s not me, Commissioner.


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COMMISSIONER WHITE: It’s not you. I see. I thought - - -

MR CALLAGHAN: Mr Hartcher, I believe.

MR O’BRIEN-HARTCHER: Please the court, O’Brien-Hartcher.


MR O’BRIEN-HARTCHER: I represent AG and I’ve been granted leave to cross-examine.

COMMISSIONER WHITE: Yes. Thank you. All right. Well, we will just – you will just need to hold off so that we can intervene this particular witness. Mr Zamolo, we’ll need to stand you down for a while. I’m not confident that we will be finished by the lunchbreak either to allow you to be finished before then. Would that be your understanding.

MR CALLAGHAN: That would be right. I would suggest it might be more convenient for all concerned if the executive decision was made now that that was not going to occur, because we wouldn’t want to put an artificial constraint on the next witness.

COMMISSIONER WHITE: No. So you’re free to go and return. 2 o’clock will be the earliest you would be back on, Mr Zamolo. So you’re free to leave the precinct of the court.

<THE WITNESS WITHDREW [12.17 pm]

COMMISSIONER WHITE: We’ll adjourn then until you tell us that you’re ready.

MR CALLAGHAN: Thank you.

ADJOURNED [12.17 pm]

CLOSED HEARING ENSUED

[REDACTED INFORMATION]

PUBLIC HEARING RESUMED [1:07pm]

ADJOURNED [1:07pm]

.ROYAL COMMISSION 20.3.17 P-1451 ©Commonwealth of Australia

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RESUMED [2.06 pm]

<CONAN LORD ZAMOLO, ON FORMER OATH [2.06 pm]

<CROSS-EXAMINATION BY MR O'BRIEN-HARTCHER

MR O’BRIEN-HARTCHER: If it pleases the Commission, O’Brien-Hartcher is my name. I’ve been granted leave to ask this witness a few questions.

COMMISSIONER WHITE: Yes. Yes. Thank you.

MR O’BRIEN-HARTCHER: Thank you.

Sir, I represent a young woman known as AG. Do you know who I want to talk to you about?---Yeah. I do.

And you were earlier asked some questions about an incident with AG where she fell off a table and you were hitting her with her own hands?---Yes.

Do you remember that?---Yes.

Was she lying on the ground when you did that?---When I did that, I believe she was.

And were you sitting astride her at that point?---I can’t remember how I was.

Okay. I suggest to you that you were sitting astride her. Would you agree with that?---Maybe.

Okay. It has been put to you that as an adult man who was in a position of authority over the detainees, and she was a female child, that that was an inappropriate thing to do, and you agreed with that; is that right?---Yeah.

Okay. You say that she was laughing at that point; is that right?---Yep.

You would agree that it’s possible that someone in her position might laugh for reasons of awkwardness or uncomfortableness. Would that be fair?---Yep.

Do you agree that a person in her position might later reflect and consider that such behaviour would be inappropriate?---I guess so.

Okay. And I want you to assume that other male guards made sexualised comments to female detainees. Would it be fair for female detainees to be concerned about those comments?

.ROYAL COMMISSION 20.3.17 P-1452 C.L. ZAMOLO XXN©Commonwealth of Australia MR O'BRIEN-HARTCHER

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MS BROWNHILL: I object.

COMMISSIONER WHITE: Yes. Thank you. It’s a two-pronged question.

MR O’BRIEN-HARTCHER: Thank you.

COMMISSIONER WHITE: Perhaps if you put the first one about, “Did you hear?”

MR O’BRIEN-HARTCHER: Thank you, Commissioner.

Did you hear other guards make sexualised comments to female detainees?---Not that I recall.

Okay. In circumstances that you found yourself in with AG at that time, do you think it’s odd that she would consider that really weird?---Yeah.

Okay. Do you think that other people would find what you did really weird?---Nah.

Okay. I want to speak to you about an allegation that AG has made against you and Ben Kelleher and Jimmy Sizeland, and it’s about a detainee who’s referred to as AJ. Do you know what I’m - - -?---Yeah.

- - - referring to. Okay. You – on that occasion, you wanted to speak to AJ but you wanted to do it outside, because confining him in such circumstances wasn’t a good idea; is that correct?---Maybe. Yeah.

Okay. And you wanted to do it at the basketball court because it has good CCTV coverage. Would that be fair?---Yeah.

And did you end up speaking to him on the basketball court?---I actually – it wasn’t my role to speak to him. It was Jimmy’s role to speak to him.

Thank you. Okay. Is that where the conversation took place?---Yeah.

And you gave evidence earlier today that you were close with Mr Kelleher and – that’s correct?---Yes.

And that when there was a particular incident at Don Dale, Sizeland and Kelleher came to your house and collected you in a car; is that right?---Yep.

And was that because you three were considered sort of the enforcers in the detention centre?---No. I wouldn’t say that was the reason.

Okay. Were you, in fact, the enforcers in the detention centre?---No.

You’ve given evidence earlier today that there was a lot of ineffectual management and people didn’t want to do certain roles; is that correct?---Yep.


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And you and Sizeland and Kelleher were people who were prepared to do those things; is that right?---We were asked to do those things so we did.

When you spoke to – when Mr Sizeland spoke to AJ, he started – AJ started to get upset and he walked away and feinted a punch at Sizeland; is that right?---Yep.

Do you remember that?---Yep.

Okay?---I think he sort of flinched towards him.

Okay. Well, I’m suggesting to you that he actually punched Mr Sizeland?---Okay.

Is that right?---I don’t know if he did or not. I can’t remember.

So he may well have punched Mr Sizeland?---He may have – I don’t remember him punching him. I think he just sort of gestured that he was going to, but I can’t remember.

Okay. And then you say that you were told by Superintendent Sizeland to grab him with Mr Kelleher and you both did that; is that right?---Yeah.

If Mr Sizeland was punched, would it make sense for Mr Sizeland to grab him first?---Not really, I guess, because he would have punched him from across the table, and me and Ben were closest to him.

Okay. There was a table on the basketball court, was there?---Yeah.

Okay?---It wasn’t on the basketball court. There was like – there’s tables where visitors come to see their kids.

Okay?---So it was actually – it took place sitting at a table.

Okay?---Not on the basketball court. In the courtyard.

Did that punch happen while AJ was walking away?---I honestly can’t remember. I just remember him not being happy with what was being said.

Okay?---And him just gesturing a punch.

Okay. But you’re sure that it was you and Mr Kelleher who grabbed him?---Yeah.

And then Mr Sizeland got involved?---Yeah, and then he helped.

And he helped?---Yeah.

And you all brought him to the ground?---Yeah.


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Okay. And whereabouts was that?---In the courtyard.

And what is the surface of the courtyard?---Concrete.

Rough concrete, smooth concrete?---There’s rough concrete, there’s smooth concrete, there’s grass.

Okay. So it’s a mixed surface. Did you – whereabouts did you have hold of AJ?---I can’t remember. Maybe his arm.

How many hands were you holding him with?---Both.

Whereabouts on his arm?---Like his forearm and upper arm.

Okay. And where did Mr Kelleher have hold of AJ?---Of his other arm.

Okay. And you tried to get him to ground?---Yeah.

Could you?---No. I don’t think we could at first. He - - -

And so Mr Sizeland got involved?---Yeah, and helped to - - -

Bring him to ground?--- - - - .....

Okay. And where were you when Mr – sorry – when AJ was on the ground?---I – I can’t remember. I think I just had his arm the whole time.

Alright?---By the side of him, I guess.

Were you standing or were you kneeling or were you - - -?---Standing, kneeling, I really don’t know.

Were you on top of him?---I don’t recall. No. I wouldn’t have been on top of him.

Was there anyone on top of him?---I don’t know. Maybe, maybe leaning on him to stop him from getting up. I have no idea. Can’t remember.

And where did Mr Sizeland have hold of AJ; do you remember?---No.

Okay. And was he – AJ compliant or is he resisting?---Resisting.

Okay. Thrashing about?---Yep.

Struggling violently?---Yep.

And you three were trying to subdue him?---We were just trying to restrain him, yeah.


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Okay. Anyone have their hands on his head?---I don’t remember.

On his back?---Don’t know. Can’t remember.

Okay. So just two arms; is that how it worked?---That was how it was supposed to work. But, I mean, he can get rough. They put up a fight and then, you know, again, you just do the best you can.

Sure. So on this occasion, doing the best you could, how were you guys holding him?---By his arms, restraining him on the ground.

By his arms – sorry. I missed the last bit?---By his arm. I was holding his arm. And then where Kelleher was holding him or Sizeland was holding him, I don’t know. I can’t remember.

Okay. Who called the Code Amber?---I can’t remember.

Okay. If it was you how would you have done that?---I would have picked up the radio and called Code Amber.

Okay. And which hand would you have done that with?---I don’t know. Right, left, whichever hand had the radio.

Weren’t you trying to control AJ?---Yes.

Was AJ handcuffed?---I can’t remember.

Okay?---I don’t think so.

Was there CCTV coverage of that incident?---There should be.

In your incident report on IOMS which is attached to your statement as CZ2, you say:

All footage on camera. No further issues.

Do you recall that?---No.

Okay. Well, we will just bring up that document. I thank the tech people. And if we go down a little bit. Perfect. That last sentence there:

All footage on camera. No further issues.

Do you agree with that?---Yeah.

Okay. Thank you. Were any officers injured during this incident?---Not sure. Not that I know of.


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Would you have recorded it in your IOMS report if there were?---Yeah, I guess so, if we grazed our knees or got grazes, I guess we would have reported it.

Okay. And if any children had been injured or detainees had been injured would you have recorded it in your IOMS report?---Yeah.

Let’s just look briefly at that report. The date at the top: Monday 16 June 2014, 8.27 am. What does that date refer to?---The date that I did the report, I guess.

That’s the date that you made this report in IOMS?---I think so. I don’t know.

Okay. And was there anyone else there when you made the report?---I have no idea.

Okay. Well, were Mr Sizeland or Mr Kelleher there when you made the report?---I have no idea.

You really can’t remember?---I cannot remember.

Can you not remember or do you have no idea?---I cannot remember - - -

Okay?--- - - - who was with me when I wrote this report. I do not remember writing this report.

You don’t remember writing this report?---No. I don’t remember the time that it happened.

But you accept that you wrote it?---Yeah.

Okay. And it refers to an incident on 12 June 2014; is that right?---Yeah.

So this is four days later?---Yep.

And your memory at that stage wasn’t so bad that you couldn’t remember that date; is that correct?---I – I just don’t, I mean, I’ve done thousands of reports. I don’t remember one report.

Well, can I ask you what the incident type, incident internal incident non-notifiable means?---I have no idea. I can’t even remember why that would be there.

Alright. Well, if it was non-notifiable who wouldn’t be notified?---I don’t know.

What about the incident level 3, what does that refer to?---I guess how serious it was.

Okay. And if someone was ground stabilised and an officer was injured in the process, that would be a level 3, a level 2 or a level 1 report?---I can’t remember.


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Okay. Well, which was the most serious?---I don’t know. I don’t know what level it goes to. I haven’t worked there for, like, three years, so I’m not familiar with the IOMS anymore.

Okay. And you have no idea about what any of these things refer to; is that your evidence?---Yep.

Let me ask you this: if an incident was non-notifiable does that mean CCTV footage wouldn’t be kept?---I have no idea.

How many computer terminals were there in the office where you did this report?---I don’t know. Maybe three, four.

Okay?---Maybe five. Don’t know.

Okay. And at the time you made this report, were Mr Sizeland or Mr Kelleher with you?

MS BROWNHILL: The witness was asked that question and answered it. He’s also given evidence that he doesn’t remember doing the report so questions about what he did when doing the report can’t be answered.

MR O’BRIEN-HARTCHER: Right. Well, could the witness please be shown annexure JS10 to Sizeland’s statement, please. Thank you.

You see the date at the top of that, Monday, 16 June 2014 at 12.38 pm?---Yep.

Sorry, I think this is the wrong report. I apologise. I’ve made that mistake. It’s not the one that I wanted to take the witness to, I apologise. The one is JS7, I’m sorry. Thank you to the tech people. Monday, 16 June 2014 at 8.27 am.

You accept that that’s when this report was made?---Yep.

Okay. And does that date and time ring any bells?---No.

If I ask you to remember back to your report that I showed you a couple of moments ago and suggested to you that it was Monday, 16 June 2014 at 8.27 am when that report was made, what would you say about that?---Okay. Nothing. I don’t know why they’re saying the same date, same time. I have no reason – no idea why. I just did my report, not really concerned about anybody else’s report. I didn’t do it with anyone. I did it by myself.

Alright. And could the witness be shown JS8, please. And the date on that is Monday, 16 June 2014 at 8.27 am?---Yep.

And this is the report of Mr Kelleher. The previous report was Mr Sizeland’s report. This is Mr Kelleher as report. Do you accept that?---Yeah.


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And by amazing coincidence they all have the same date and time?---Okay.

Okay. Well, in those four or five computer terminals were you all sitting there making these reports at exactly the same time?---Like I told you before, I don’t know. I can’t remember.

Alright. But when you made that report, you would have been as truthful as you could in it; is that correct?---Yep.

And you would have put the date of the report – the date of the incident as correct, even though it was a couple of days later; is that right?---I don’t know if that – if the date is just – if it just – if it comes up when you write the report or if we type the date in. I can’t remember.

Well – okay. Fair enough. The – if there was going to be CCTV footage kept of an incident, would someone look at the IOMS report to find out the date of that incident and go to the CCTV footage from there?---I don’t know. I guess so. Or they just go to when the incident occurred.

Alright. So they would look at this IOMS report that you had written or Mr Kelleher had written or Mr Sizeland had written and say, “Okay, so it happened on 12 June 2014 at 2.37 pm.” And then that would give the person where to go and what time to look at for the CCTV?---I guess so.

Okay. Alright. Could the witness be shown JS11, please. I want you to have a look at the date at the top of that page. This is the use of force register which relates to the incident?---Yes.

You will see there the date. Can you make that out? It looks like the month might be 66 but I think it’s 06?--- ..... can’t really work it out.

So it’s 11.06.14; is that right?---Yeah, looks that way.

Okay. So the date on your IOMS report is not correct, is it?---Don’t know.

And I’m suggesting to you that you and Mr Kelleher and Mr Sizeland all wrote those reports together and that you deliberately made the date a different date?---Okay. Well, that didn’t happen.

Okay. And that – and I’m suggesting that you did that because then the CCTV footage that may have been kept from that incident wouldn’t be referable to the correct point in time?---Well, that’s not the truth, so - - -

Okay. Would you care to tell us what the truth is?---I – the truth is what it is: the kid played up, he went to punch a senior officer, we restrained him and took him to his cell. That’s what happened. There was no injuries recorded. There was no foul play. There was no trying to hide nothing. There’s nothing to hide.


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Alright. Going to keep that use of force register on the screen for just a moment. And ask you again whether AJ punched Officer Sizeland?---I told you I can’t remember if he was punched or he just gestured to punch. I don’t know.

Okay. Scroll down on that report, please. You might not be able to read this – little bit difficult, but there’s names there, and one of them is number 4, J Sizeland, and he records his injuries as, “Left shoulder strain, bruised mouth, punch, skin off right elbow, skin off right knee.” Can you see that?---Yeah.

You wouldn’t put the wrong thing in the use of force register, would you?---It’s not my use of force register.

Well, I’m asking you – I’m asking you, when you filled in the use of force register, would you put the wrong thing in it?---No.

And you wouldn’t expect any other officer to put the wrong thing in the use of force register?---Wouldn’t expect them to.

Okay. And so what I’m suggesting to you is Mr Sizeland was punched by AJ?---He may have got the injuries during the struggle. He may have got an arm free and elbowed him in the head during the struggle. I don’t know.

Well, the person who got injured in the struggle was AJ, wasn’t it?---I didn’t – I couldn’t even tell you. I don’t believe he got injured.

In fact, AJ had cuts to his chin and grazes to his arms and knees; is that right?---That would have been injured while he was struggling, whilst being restrained.

Okay?---I don’t remember it.

Did you see fit to record that in the use of force register?---I don’t know.

Now, we will just go up a bit and we can see that there’s nothing in terms of injury sustained and nature of injury against AJ. Would you agree with that?---Yeah.

Okay. What really happened was this – actually, I withdraw that. Need to ask you a couple of questions first. The first question is: was Mr Sizeland angry that day about what had occurred?---No, I don’t recall him being angry.

Okay, were you angry that day about what had occurred?---No.

Did your taking testosterone make you angry?---No, I wasn’t angry.

Alright. Well, how much testosterone were you taking at that time?---I probably wasn’t taking any.

MS BROWNHILL: I object. Already given this evidence.


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COMMISSIONER WHITE: Ms Brownhill, I do believe that Mr Zamolo is represented himself by his own lawyers.

MS BROWNHILL: Well, the Northern Territory is equally represented and that’s what I – that’s who you represent.

COMMISSIONER WHITE: I understand that, but it just seems to be a very particular question that might concern his counsel.

MS BROWNHILL: Perhaps I slipped in too soon.

COMMISSIONER WHITE: You might have done.

MS BROWNHILL: Yes, your Honour.

MS JARDINE: I do object. That evidence has been given and there is no evidence that he was taking it this day.

COMMISSIONER WHITE: Well .....

MR O’BRIEN-HARTCHER: Okay. Thank you very much. Your earlier evidence is you took one mill over three weeks; is that correct?---When I’m on it. I don’t live on it.

All right. But you were taking it during that time and you accepted that when you were asked questions earlier; is that right?---I may have.

I’m suggesting to you that you took much more testosterone than 1 mil every three weeks; is that true?---You can suggest what you want. It’s not true.

Okay. Well, I would like to take you, please, to tab 301A, and I will take you to page 28, and I take you to line 20:

Just like an injection once a week. And where do you inject?

And you say, “In the bum.” And Ms Engels, the police officer, asks you, “How much?” And you say, “Maybe like 2 mil.” So you were injecting 2 mil once a week, weren’t you?---Again, that’s just – like, again, that’s just an estimate. I don’t know how much I’m taking, but I know I don’t take much.

It’s a fairly different estimate to 1 mil every three weeks?---Well, no, because - - -

MR CALLAGHAN: I have to object, because that interview was in March last year and I understood the cross-examination to be relating to incidents when he was working, so if the witness is being asked about what he did last year that’s not exactly on point.


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COMMISSIONER WHITE: Yes. At least at line 15 it makes it look as though it’s present tense question. Mr Hartcher, doesn’t it.

MR O’BRIEN-HARTCHER: O’Brien-Hartcher, it please the Commission.

COMMISSIONER WHITE: I beg your pardon, Mr O’Brien-Hartcher.

MR O’BRIEN-HARTCHER: Your Honour, I understand it was referring to incidents at the time that he – or the amount that he was taking at the time that we were asking about. I will just try and find out. I might ask my instructor to attempt to find that.

COMMISSIONER WHITE: Alright. I was only looking at the question from Ms Engels, line 15 or 16 saying, “Tell me about how you take them and how often.” So it’s in the present tense. That was all that was guiding my observation.

MR O’BRIEN-HARTCHER: Thank you, Commissioner, I appreciate that. I will see if I can find it and if it doesn’t match up I will withdraw the question.

COMMISSIONER WHITE: Sometimes people are loose with the tenses, aren’t they? And they mean in the past, but they use the present tense, so you might need to go back earlier in the interview.

MR O’BRIEN-HARTCHER: Thank you, Commissioner.

COMMISSIONER WHITE: Okay. Thank you.

MR O’BRIEN-HARTCHER: Well, what I’m suggest to you, sir, is what happened on this say is that AJ purged Mr Sizeland and Sizeland didn’t like it, and he yelled for you and Kelleher to “get him”, as in get AJ. Do you accept that?---Yep.

And you and Kelleher and Sizeland restrained AJ and you got him to the ground. Would you accept that?---We tried, and then Sizeland helped. Yep. It – like I said, the whole thing’s a blur, just ......

Okay. And can you remember what Sizeland did particularly clearly?---No. I can’t remember.

Okay. Well, you accept he might have stomped on AJ’s head then?---No, I never seen no one stomping on anyone’s head.

Well, you say you can’t remember. How do you know he didn’t?---I don’t know. Like I said, I think I would remember someone stomping on his head.

Alright. And I’m suggesting to you that AJ got the injuries that I described earlier?---And I told you he got his injuries, as far as I know, from struggling whilst


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being restrained on the ground, turning his head, his arms, his legs. He’s on concrete.

Okay. And I’m suggesting to you that you and Sizeland and Kelleher wrote your reports at the same time and that you – those reports weren’t accurate?---Well, they are accurate.

I guess that’s a matter for someone else to decide. And I suggest to you that you didn’t make it a notifiable incident so that the CCTV which you knew was taken wouldn’t be epileptic can. That’s the truth, isn’t it?---No.

Do you know where that CCTV footage is now?---How would I know?

Well, you may have been shown CCTV footage while you were - - -?---No.

- - - being asked questions by your lawyers?---No.

You’ve suggested that if AJ had complained, that this would have been – the CCTV footage would have been kept; is that right?---I guess so. It would have been looked into.

Alright. I just want to ask you a couple of questions about that. AJ was taken to BMU straight after this incident?---I think so.

And in the BMU he would not normally be able to make phone calls?---Yep.

If he wanted to make a phone call he would have to ask a guard?---Yep.

And the guard could say no?---He could say no. Yep.

After this incident AJ wasn’t allowed to use the phone, was he?---Well, they’re not going to be allowed to make a phone call after they’ve just hit an officer.

Thank you, sir. And two days later AJ was taken to the adult jail; is that correct?---I can’t remember.

Alright. Well, are you aware that if he was a juvenile in an adult jail, he would require – he would have to be held in isolation?---No idea. It wouldn’t have been my call or my decision.

Okay. That’s a legislative requirement. Are you aware of that?---Sorry.

That’s a requirement under the Youth Justice Act. Are you aware of that?---No.

Okay. Are you aware of the ease of access to a phone in the adult jail if you’re in isolation or are you not aware of that?---I have no – I’ve never worked in an adult jail.


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Alright. Thank you, Commissioners. I – just for the record, I withdraw those earlier questions because the interview dates are unclear on that point.

COMMISSIONER WHITE: Thanks. Thank you, Mr O’Brien-Hartcher.

MR O’BRIEN-HARTCHER: May it please the court.

COMMISSIONER WHITE: Ms Jardine, it’s for you to re-examine.

<RE-EXAMINATION BY MS JARDINE [2.32 pm]

MS JARDINE: Mr Zamolo, my name’s Jardine as you know, and I appear for you?---Yeah.

Okay. I’m going to ask you first some questions about your steroid use at that time?---Yeah.

Questions you’ve been asked about today?---Yeah.

You gave some evidence before that you have a diagnosed condition?---Yeah.

And you had previously been prescribed?---Yeah.

And as I understand your evidence, you took those steroids in order to avoid the onset of further serious side effects?---Yep.

Mental health side effects?---Mmm.

Is that correct? You were asked some questions by Dr Dwyer about some potential side effects of the use of steroids?---Yeah.

And is it your evidence that you have never suffered from those side effects?---Yep.

Because those side effects are linked to the abuse of such a substance?---Yep.

And that’s not something you’ve ever done?---No.

I want to ask you some questions now about your understanding of the footage at Don Dale; okay?---Mmm.

In relation to a number of incidents that you’ve been asked about, you’ve indicated that if there had been a complaint at the time the footage would have been secured?---Yeah.

.ROYAL COMMISSION 20.3.17 P-1464 C.L. ZAMOLO RXN©Commonwealth of Australia MS JARDINE

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What is your understanding about where and how the footage is secured and for how long, particularly?---I – I’m not sure. I think it just gets, like, saved to some sort of – like, a big computer and then it’s just all recorded on the computer, and if they ever need any footage for evidence or for whatever, they just burn it onto a disc, going back to that date and time.

Specifically, is it your understanding that that footage gets kept indefinitely or - - -?---That’s what I thought – I would have thought so, yeah.

That’s what you understood?---Yeah.

I want to ask you now some questions about the 21 August incident. You know what I’m talking about?---Mmm.

You’ve given evidence that on that day you were on the day shift?---Yep.

And you were then picked up from your home later in that evening?---Yeah.

And you were picked up by shift supervisor Sizeland and Ben Kelleher?---Yeah.

You were told, as I understand it, there was a serious incident at Don Dale?---Yeah.

And they required your assistance?---Yeah.

I take it that wasn’t an unusual occurrence?---No.

I think your evidence in your statement was that such was the rush that you didn’t even put on a uniform. You attended Don Dale in a singlet, was that correct?---Yeah.

COMMISSIONER WHITE: Well, that wasn’t – I don’t recall him giving that evidence, actually.

MS JARDINE: Sorry, your Honour. I believe it’s in his statement, your Honour.

Just to clarify, I believe that’s in your statement; is that?---Yeah – yep.

Is that the situation?---Yep.

COMMISSIONER WHITE: That makes it a bit easier.

MS JARDINE: So when you attended the centre there was an incident occurring?---Yeah.

Yes. And you’ve given evidence that not only were there a number of Youth Justice Officers present but also guards from the Berrimah Jail?---Yeah, correct.


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When you attended were the guards from Berrimah Jail already there or - - -?---I – may – I think they might have rocked up after. They may have been there. I can’t remember.

You’ve seen some footage, clippings of some footage, that was taken on 21 August?---Yeah.

And you’ve seen the location which that footage is taken from?---Yeah.

Are you able to describe that location for us?---As in – like, the admission area when he was trying to come out? Yeah that – so that’s - - -

Was in relation to .....?---Yeah, so that’s the admission and storage area, yeah.

And where were you stationed in relation to where that footage was taken?---I was stationed on the other side of the building, which is the – I was covering the exit from the BMU to the courtyard.

And were you stationed there for the duration of - - -?---I was for – for a while, yeah.

For a while. And I take it from that evidence that you – you’ve given evidence that you didn’t hear any of the conversation that’s captured on that footage?---No.

And that’s obviously because you’re on the other side?---Yeah.

If I can just take you to what happened after the decision was made to use tear gas?---Yep.

Are you able to tell the Commission when you first were aware that tear gas was used?---I think we got told that they were going to use the gas, because he just wasn’t – I think it was after one of the guards got injured, once he threw a piece of metal or something and injured a guard, I think that’s when they made the decision to use the gas.

And you weren’t part of that decision-making process?---No.

So you were informed that gas was going to be used?---I was told, yeah.

Were you given any protective wear?---No.

The gas was used and it quickly become apparent that some of these young persons were locked in their cell?---Yeah.

And the guards didn’t have any keys?---Any keys to unlock the cell doors.

So it was then your – were you – you then entered to free some of these children?---I think it was myself, Kelleher and Sizeland entered the BMU to get them out.


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And you did that of your own accord?---Yeah.

And as I understand it, or is it your evidence that you were then - - -?---Exposed to the gas.

And you were exposed to the gas and then immediately after you took these children out you then were suffering the effects of the gas?---Yeah.

I understand it to be the case that you were reprimanded for going out without a direction; is that correct?---I think it – I think it was just – we were just – like, we weren’t – there was no gratitude, no thanks. I think – yeah, if anything, we were sort of, like, asked, “Why would you go in?” Basically, “You weren’t instructed to.”

Weren’t instructed to, alright.

COMMISSIONER WHITE: That’s by management, Mr - - -?---Yeah, I think that might have been – I can’t even remember who – where that came from, but I just remember just being, like, a bit upset that there was no gratitude.

MS JARDINE: Because you had been exposed to this gas for quite some time?---Because we went in to get these kids out and put ourselves at risk.

I want to ask you now some questions generally about the conditions at Don Dale when you were working there?---Yep.

You’ve described in your statement that it was a very hard place to work?---Yep.

And one of the reasons why it was a hard place to work was because there was, from your perspective, a lack of structure or rules?---Yeah.

And that was both from the perspective of the guards, your perspective, and also from a young person’s perspective?---Yeah.

Would that be fair?---Yeah.

And you’ve given an example in your statement which is that different shift supervisors would manage the children in different ways?---Yeah.

And you’ve indicated that that was something that made your day-to-day job very difficult?---Yep.

You’ve also given evidence about the lack of training and the lack of experience you had in dealing with young children with a disadvantaged background?---Yeah.

And you’ve given evidence about the way in which you learnt to deal with these children; yes?---Yep.


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And you’ve seen the footage that was captured on your phone and the way in which you discussed – talked to those children?---Yeah.

What do you say now about that conduct in relation to these children?---That – you know, I can see it for what it was, I can see how inappropriate it was. But in no way was I – was I meaning any sort of harm to the kids or anything. I mean, it was just my way of trying to build a rapport with the kids. Like, I did know them very well, I did get along with them very well, and that was just my way of getting on their level and just – I guess just having a good rapport with them made it a bit easier for me.

And from your perspective you are of the view that you had a good rapport with many of these children?---Yeah.

And that you developed a relationship with them that extended - - -?---Yeah.

- - - beyond the time that you worked there?---Yeah.

Nothing further. Thank you.

<RE-EXAMINATION BY MR CALLAGHAN [2.40 pm]

MR CALLAGHAN: I’m just going to clarify one brief point, Mr Zamolo. To be fair to you, you’ve been asked about your testosterone use?---Yep.

You were taken to a statement you made where you said it was maybe like 2 mil. Can you just take it from me, and your barrister will correct me if I’m wrong, that you were speaking then in March of last year about things that were found at your residence in September of 2015?---Yeah.

Which was after – long after you’d left Don Dale; is that correct?---Yeah.

And so if we were to go back to your use of testosterone when you were at Don Dale, have you already given evidence about that?---Sorry?

What level of testosterone, if any, were you using when you were at Don Dale?---It would have been minimal. It would have been just one week – 1 mil every three weeks just to keep my test levels up. When – if I was ever taking more, it was because I was trying to get my wife pregnant.

Commissioners, I don’t have anything more for Mr Zamolo at this time. He is a witness who will be receiving a fresh summons in respect of another hearing.


.ROYAL COMMISSION 20.3.17 P-1468 C.L. ZAMOLO RXN©Commonwealth of Australia MR CALLAGHAN

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Thank you for your assistance, Mr Zamolo. You’re released now from your current summons to attend. It has probably been explained to you that you will need to return at a later date for some questions about another topic, but you will get a fresh summons there?---Yeah.

Thank you. So you’re free to go now.

<THE WITNESS WITHDREW [2.41 pm]

MR CALLAGHAN: Commissioners, we’re about to move on to a panel of witnesses concerning oversight and services. All of that tidying up with Mr Zamolo took a bit longer than any of us thought it might. It leaves Mr Kelleher in the position where he’s, on any version, going to have to come back tomorrow morning. He has been here all day with his legal representatives. Given the time, and given the amount of time I apprehend this panel will take, it might be appropriate, in my submission, to allow him to leave on the basis that he’s here to resume at 9.30 in the morning.

COMMISSIONER WHITE: Is there any one here to hear my directive?

MR CALLAGHAN: Perhaps his appearance could be announced now.

MR TIWANA: It may be appropriate if I announce my appearance.

COMMISSIONER WHITE: Yes. Would you, thank you.

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

COMMISSIONER WHITE: Yes. Thank you, Mr Tiwana. I apologise that you and your client have been left here for so long today without any action.

MR TIWANA: Yes.

COMMISSIONER WHITE: I know that you will understand the dynamics of these things are often imprecise.

MR TIWANA: Perhaps .....

COMMISSIONER WHITE: But release him from further attendance today.

MR TIWANA: Thank you. Commissioner, he has a flight booked at tomorrow at lunchtime at 1 o’clock, but I would have thought if we start with him first thing in the morning.


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COMMISSIONER WHITE: 9.30.

MR CALLAGHAN: Providing those who have given their time estimates for cross-examination adhere to them, we should finish that comfortably.

COMMISSIONER WHITE: Even remotely adhere to them, Mr Callaghan.

MR TIWANA: Yes.

MR CALLAGHAN: That would be good.

MR TIWANA: Thank you.

COMMISSIONER WHITE: Well, we will certainly keep reminding people if they look like straying. So what time does he need to leave here?

MR TIWANA: Probably around midday.

COMMISSIONER WHITE: Thank you. All right then. 9.30 tomorrow for your client.

MR TIWANA: Thank you.

MR CALLAGHAN: It please the Commission, Mr McAvoy will be taking the panel.

MR McAVOY: We’re ready to proceed, Commissioner. I call Jonathon Hunyor, Terry Byrnes and Andreea Lachsz.

<JONATHON HUNYOR, AFFIRMED [2.44 pm]

<TERRY BYRNES, SWORN [2.45 pm]

<ANDREEA LACHSZ, AFFIRMED [2.45 pm]

MR McAVOY: Thank you. Starting first with Mr Hunyor. Mr Hunyor, could you just have a look at your statement which should appear on the screen in front of you dated 16 February 2017. Do you recognise that statement?

MR HUNYOR: I do.

MR McAVOY: That’s your signature?

.ROYAL COMMISSION 20.3.17 P-1470 HUNYOR/BYRNES/LACHSZ ©Commonwealth of Australia

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MR HUNYOR: It is.

MR McAVOY: The contents of that statement are true and correct to the best of your knowledge?

MR HUNYOR: .....

MR McAVOY: Commissioner, I tender the statement of Jonathon Hunyor, dated 16 February 2017.

COMMISSIONER WHITE: That’s exhibit 103.

EXHIBIT #103 STATEMENT OF JONATHON HUNYOR DATED 16/2/2017

MR McAVOY: I might move in order then to Mr Byrnes. Mr Byrnes, do you recognise that statement.

MR BYRNES: Yes, I do.

MR McAVOY: Dated 10 September. Your signature is at the bottom.

MR BYRNES: Yes, it is.

MR McAVOY: And the contents of that statement are true and correct to the best of your knowledge.

MR BYRNES: I believe so. Yes.

MR McAVOY: Thank you. Commissioner, I tender the statement of Mr Byrnes.


EXHIBIT #104 STATEMENT OF MR BYRNES DATED 10/9/2016

MR McAVOY: Ms Lachsz, if I could ask you to look at your statement, please, if we could show that. You can see that document, Ms Lachsz.

MS LACHSZ: Yes.

MR McAVOY: And you see that it’s dated 20 September 2016.

MS LACHSZ: Yes.


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MR McAVOY: That’s your signature on the bottom?

MS LACHSZ: Yes.

MR McAVOY: Are the contents of that statement true and correct to the best of your knowledge?

MS LACHSZ: Yes.

MR McAVOY: Commissioner, I tender the statement of Ms Lachsz.

COMMISSIONER WHITE: Thank you. Exhibit 105.

EXHIBIT #105 STATEMENT OF MS LACHSZ DATED 20/9/2016

MR McAVOY: Commissioners, I might note for the record that I have been advised that Ms Dwyer, counsel, appears representing each of the three NAAJA witnesses today.

COMMISSIONER WHITE: Thank you. Yes. I couldn’t see behind the screen.

MR McAVOY: Thank you. Firstly, I would like each of you to commence by just giving a brief explanation of your role at NAAJA. I know you’ve covered it in your statement, but if you can briefly describe your role at NAAJA while you were working there, for those of you that have left, first – starting first with Mr Hunyor.

MR HUNYOR: I was the principal legal officer, so my responsibility was for running NAAJAs legal practice, which involved criminal and civil sections. I think there were about 40 or 45 lawyers, about 75 staff in total. When I started we had three offices, Darwin, Katherine, and Nhulunbuy. The Nhulunbuy office was closed towards the end of my time there, but the people who reported directly to me were the managers of the criminal and civil sections in Darwin and the regional managing solicitors in Nhulunbuy and Kathryn. I maintained a small practice of my own, predominantly in criminal law, and mostly involving clients with cognitive impairment, mental illness. I didn’t have much to do with youth justice clients specifically, but I did have some involvement in some cases, but my responsibility was general overall management of the legal practice at NAAJA.

MR McAVOY: Thank you. Perhaps we will ask Mr Byrnes just to give an overview of your role with NAAJA, please, the Northern Australian Aboriginal Justice Agency.

MR BYRNES: In my last ..... job was the Indigenous Justice Youth Justice Officer, which meant I worked with young people coming before the courts, and helping them through that process. Very arduous process, helping them through that, and


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trying to show the face of the young person to the court, so the court saw not just a person who committed an offence but the person that was behind that. Prior to that I worked as a through care officer, which means you work with people pre and post release developing plans, for helping them back get into the community, and I worked as a youth worker there, so I had a lot of involvement with Don Dale prior to starting this role and while I was working as a Youth Justice Officer.

MR McAVOY: Thank you, and Ms Lachsz.

MS LACHSZ: On my statement it says that I was a policy officer at NAAJA. So that was just the last few weeks before I went on leave ..... Royal Commission. Prior to that I was a coordinator of the community ..... team, so coordinating all of our legal education, community engagement work out in remote indigenous communities, and also in the urban settings of Nhulunbuy, Katherine, and Darwin. Prior to that I worked as a community legal educator in the Darwin office and prior to that I worked as a criminal defence solicitor, also with NAAJA .....

MR McAVOY: Thank you. Mr Hunyor, I want to ask you one question about your employment prior to NAAJA. You were employed by the Human Rights and Equal Opportunities Commission?

MR HUNYOR: The Australian Human Rights Commission, which was the Human Rights and Equal Opportunity Commission before – changed its name.

MR McAVOY: That – yes. Did the change of name occur while you were there?

MR HUNYOR: It did.

MR McAVOY: And your role in that Commission?

MR HUNYOR: I started there in, I think, 2002 as a senior lawyer. I then became the deputy director, and then the director of legal services, so it was an in-house counsel role advising the President and Commissioners and various sections on the whole range of the operation of the Commission and relevant legal issues.

MR McAVOY: Thank you. And Mr Byrnes, you’re no longer employed at NAAJA and reside interstate; is that correct?

MR BYRNES: That’s correct.

MR McAVOY: Now, if you can just look at – if I can just look at paragraph 21 of the statement of Mr Hunyor, please.

COMMISSIONER WHITE: Can I just, before you answer that, Mr Hunyor, can I just remind you that you’ve got one microphone between the three of you. So while you’re well positioned Mr Byrnes, you might need to have it swung around in front of them, so that what you say can be more readily captured. Thank you.


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MR McAVOY: Might – it may be easier, Commissioner if Mr Byrnes and Ms Lachsz change position. Mr Byrnes seems to have a stronger voice. Thank you. Okay. Mr Hunyor, have you been able to have a look at paragraph 21 of your statement.

MR HUNYOR: Yes.

MR McAVOY: Can I ask you to discuss in general the way that NAAJA operated during the time you were there, and give a brief overview of the prioritisation issues that you dealt with on a daily and annual basis, I suppose.

MR HUNYOR: I think there was always a fine line between order and chaos at NAAJA. There were times while I was there that I felt things were pretty much under control, but one or two things would change, and I would feel our grasp on things was slipping quickly. We were grossly under-resourced, our staff were grossly overworked, the work health and safety issues were always deeply concerning to me and those in management, because we had staff working incredibly long hours, driving long distances late at night even when they weren’t supposed to be, on wet roads when they weren’t supposed to be. They were very dedicated, very intelligent, very hardworking people, but there was always a – as I say, a fine line between order and chaos.

The criminal work tended to get precedence, because they were clients in the cells. We would get calls from the Supreme Court or what is now the Local Court when someone was in the cells, and we would have to drop everything to be there, which we would always do, but it meant that that work tended to take precedence despite the obvious importance of other work that we did. So, for example, our civil section, which did a lot of work around issues that were fundamental to the rights and the lives of Aboriginal people, things like child protection issues around housing, around access to appropriate medical care, government actability, police accountability, there’s a whole range of what I regard as very important human rights issues that came under our civil practice.

So we tried very hard to make sure our civil practice was supported and boosted, and also the proactive work we were doing things like prisoner through care, but also policy development, community legal education. Those were things that were very hard to maintain a priority on when we had kids in the cells that we had to see to, but we tried to do that as best we could.

MR McAVOY: Many of the programmes being run by NAAJA during your time were grant driven programmes?

MR HUNYOR: That’s right.

MR McAVOY: So that created some uncertainty as to the continuity of those programs?


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MR HUNYOR: That’s right, and we were always having to fight to have funding continued and maintained. We put a lot of energy into making new applications for funding. We were always looking for new and innovative projects, particularly around young people, where we recognised there was a massive need, and a lot we could have done. We put a lot of time in that. We were mostly unsuccessful. I think Terry’s position was one of the few examples of success where we were able to get a new project off the ground for youth in the time that I was there. But we were always trying for this sort of thing, because we knew there was so much more we could have done but our capacity was very, very limited.

MR McAVOY: Okay. I want to ask you a broader question. We’ll come to more specific questions later. Can you explain the overall approach NAAJA took to engagement with the Department of Correctional Services in that period?

MR HUNYOR: Yes. We tried to be very professional, proactive and work collaboratively. I thought we had – when I arrived, through care was already up and running and operating in the prison which I thought reflected – I thought that was a remarkable thing for an Aboriginal legal service to be working inside the prison, and it was a credit to both corrections and NAAJA that it was able to happen. So we were very careful about maintaining good relationships. It was my view, and I know it was shared by the CEO Priscilla Collins, that we should try to maintain professional relationships even with those with whom we disagree in government to try to work, I guess, inside the tent on issues as much as we could.

We met regular already with Corrections, with the Minister, and with the Commissioner and there were often meetings at which we talked very frankly about things, and we respect the confidences of those meetings. And I thought we showed we were grown ups who could be trusted, and we weren’t going to be abusing any of those privileges, but we were also prepared to be critical when we disagreed, and there were many issues about what we disagreed. We sometimes took those public, but we did that in a way that, as I say, respected those confidences, and I thought showed that we could be trusted and therefore hopefully get results for Aboriginal people.

MR McAVOY: Thank you. Now at paragraph 43 and onwards of your statement – we don’t need to go there – you discussed how the relationship with Commissioner Middlebrook deteriorated somewhat.

MR HUNYOR: Yes.

MR McAVOY: Deteriorated. Apart from that last period where things started to become more difficult, how would you describe the relationship with the Department, and in particular the Minister? Was it one where there was some degree of mutual respect, or - - -

MR HUNYOR: I thought so. I thought it was a remarkably good relationship, given our differences, given the fact we did disagree quite strongly on some issues.


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But until that last period – and it’s difficult for me to pinpoint it, but as I say – I think I’ve said in my statement, over the course of 2015 it became clear that the relationship was deteriorating. But until that time it was very professional and – and – and quite collegiate, really.

MR McAVOY: And you could have frank discussions about issues.

MR HUNYOR: Yes, and we did.

MR McAVOY: And are you able to describe, from your perspective as the principal legal officer at the time, how the community legal education unit fit within the NAAJA operations?

MR HUNYOR: Yes, it fell – it sat under law and justice projects which was managed by Jared Sharp, and when I started at NAAJA Jared was effectively reporting to me and then up to the CEO, but that didn’t last with that more than I think about a year when I realised that it was better for him to report directly to the CEO and so that’s what happened. So I worked closely with Jared and I was aware of what was going on, we met regularly, but he didn’t formally report to me.

MR McAVOY: Thank you. I might ask you some questions now, Ms Lachsz if you could perhaps move forward a bit and keep your voice up. Can – it might be difficult to do this but can you explain in just broad terms your experience in attending at the Don Dale Youth Detention Centre for the delivery of education programmes for detainees.

MS LACHSZ: So when I was – before I started coordinating programmes, the former coordinator would ask me to negotiate and start delivering legal education, both through Tivendale School and through Corrections, to maximise sort of the amount of delivery and then I met with both Tivendale and Corrections and negotiated access, and normally what we would do is go in and deliver to the maximum security boys, medium security boys and the girls, and we would deliver on a range of topics that would be directly relevant to them. So, for example, if the make-up of a particular session was primarily children on remand then we would talk about bail, do mock courts, bring in wigs and gowns, and discuss with them bail conditions and the sort of things that they could go to assist in getting bail. Similarly, talking about sentencing, when they were children who were being sentenced.

MR McAVOY: So the programmes were designed to be responsive to the needs of the time. That was the attempt?

MS LACHSZ: Yes.

MR McAVOY: And from your observation – it might be a bit biased but how was that received by the detainees, that – the programmes that were run?


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MS LACHSZ: Incredibly well. We always had really great engagement from the youth in there. They really enjoyed the activities that we did, they responded really well, they retained information they were provided. Incredibly well behaved ..... get to be a part of it.

MR McAVOY: Is – were there any programmes that you did with them, with the detainees at the school, which stood out as being particularly of interest to the detainees, or they fully engaged in all of the programmes?

MS LACHSZ: They were always engaged, regardless of the topic, and we would give them an opportunity to – to identify what they wanted to discuss the most. So that’s kind of a core approach CKE, that you want it to be directly relevant to your audience.

MR McAVOY: Before you became the coordinator, when you were the educator, did you receive any negative feedback from any of the teachers or Corrections staff?

MS LACHSZ: Initially, when we were going in there we always had positive feedback. Usually the staff, both Corrections and school staff would be involved asking questions, being supportive of the programme. That shifted in the last session that we formally organised to deliver through the school in June 2015.

MR McAVOY: Yes. So I’m going to ask you a couple of questions about that in just a moment. You’ve made the distinction between the programmes that you formally delivered at the school, for a particular purpose, because there were programmes that you continued to deliver in Don Dale, just not at the school; is that correct?

MS LACHSZ: So after the June 2015 sessions we were asked not to return to Tivendale School and deliver sessions anymore, but we did negotiate access through Corrections going forward.

MR McAVOY: And can you just tell the Commissioners the – there was one particular programme that you ran which was very popular with the detainees?

MS LACHSZ: Are you referring to the rights and responsibilities .....

MR McAVOY: No.

MS LACHSZ: .....

MR McAVOY: With – I’m referring to the dance programme that was run by Corrections.

MS LACHSZ: So Jonathon has already mention that we’re constantly putting in funding applications to try and expand our delivery and through the ..... trust of the Law Society of the Northern Territory the team put in a funding application to create


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a hip hop video in Don Dale Youth Detention Centre, and we did that with the Indigenous Hip Hop Project. We also created resources out in remote communities, but we did create a video in, I believe it was August 2015, through Corrections time and that was focussing on legal issues including your rights with police and criminal complicity.

MR McAVOY: And if I can take you now back to the events of June 2015. At paragraphs 14 and 15 of your statement you cover that particular occasion in June 2015. You start at paragraph 13, actually, but the – there was some things that you observed which are recorded in paragraph 14 which concerned you. Can you just explain to the Commissioners why those matters were of concern? What occurred and why they were of concern, sorry?

MS LACHSZ: So all of the comments referred to in that particular paragraph occurred in one session, and all three of us who were there delivering the session on that occasion were particularly concerned about the attitude of both the Corrections staff and the Tivendale staff. We were doing our youth rights and responsibilities in detention programme and part of that begins with a general discussion with the kids about what their rights might be and what their responsibilities might be, and frequently when we were asking questions directly of the youth, they weren’t provided an opportunity to answer those questions.

Instead staff were jumping in and at times making incredibly inappropriate comments, some of which I’ve included in this paragraph such as, “Boo hoo, you guys are whingers, when the children were talking about some of the alleged incidents that had occurred to either them or other people who were in the detention centre.” And just really – just inappropriate jokes and the disparaging comments. In one of my annexures I go into more detail about examples.

MR McAVOY: Do you think that the responses by the Youth Justice Officers inhibited the delivery of the programme?

MS LACHSZ: It was – it was also the Tivendale staff particularly, and absolutely, because it wasn’t providing the children an opportunity to engage in the session. It was surprisingly, and in quite an unprecedented way, obstructionist, because it didn’t allow the children to think about what their rights and responsibilities might be. If they had particular concerns they want to raise in a public forum; they weren’t provided that opportunity.

MR McAVOY: And you say “unprecedented”. I take by that you’re meaning that it’s something that you hadn’t experienced before with the delivery of these programs?

MS LACHSZ: Prior to this particular day staff had always been really supportive, or just would sit back and let us continue with our delivery of our sessions, but there was one session in particular in October 2014 where the engagement of the staff was really incredible. They were very supportive of the young people knowing what


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their rights were, what their responsibilities were. One corrections officer asked me if I could give them more information if they would be in a position to help out the young people if they ever had questions around that, so I was very surprised by the shift in attitude on this occasion.

MR McAVOY: And as a result there was a – well, not as a result. I withdraw that. At paragraph 17 you’ve referred to annexure to your statement which is an email to NAAJA from the principal of the Tivendale School. Do you recall receiving that email?

MS LACHSZ: So this email - - -

MR O’MAHONEY: I hesitate to rise.

COMMISSIONER WHITE: I don’t think you’re hesitating at all, actually, Mr O’Mahoney.

MR O’MAHONEY: Well, I thought about it, but it was a very brief hesitation. Thank you, Commissioner. There is an issue, and it has just come to our attention. We have copies of these statements that contain no redactions in them at all, and we had been labouring under the misapprehension that names of people – consistent with the Commission’s protocol, names of people against whom adverse comment was made would be redacted if they weren’t being called before the Commission, and it seems to me that that is not the case.

COMMISSIONER WHITE: You’re talking about the principal of the Tivendale School.

MR O’MAHONEY: Yes.

COMMISSIONER WHITE: I’ll see what they say about it.

MR McAVOY: I can indicate, Commissioner, that there is an intention to call the principal. I don’t want to go into the circumstances of that at the moment, but there is the intention to do that, and I can assure my friend that that’s the case.

MR O’MAHONEY: Can I just invite – I’m grateful for that Commission. Perhaps I can invite Counsel Assisting the Commissioner, as he’s taking the witnesses through the statement, to bear that in mind. There are a number of other people who are named and at this stage we’re not on notice of them.

COMMISSIONER WHITE: Right. Throughout the NAAJA statements – there’s three of them.

MR O’MAHONEY: That’s right.

COMMISSIONER WHITE: There are a lot of people mentioned.


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MR O’MAHONEY: Thank you.

COMMISSIONER WHITE: That’s true. Thanks, Mr O’Mahoney. I take it that those who advise you, Mr McAvoy, have been mindful of that, going through these three statements? There are a lot of names in them. I’m presuming that some of them – some of them might be said to be mildly adverse, and some neutral, and some fairly adverse. I know some have been called.

MR McAVOY: I have been conscious of that, Commissioner, and I’m endeavouring to deal with the evidence in a way that doesn’t require the mention of any people that have not been given the appropriate notice and - - -

COMMISSIONER WHITE: Or are not intending to be – I take it that this principal hasn’t been given a notice yet?

MR McAVOY: No, but naming people who have been given notices, and this witness has been given a notice of - - -

COMMISSIONER WHITE: Has she?

MR McAVOY: Yes. It’s just that she hasn’t been summonsed yet.


MR McAVOY: And I’ve just indicated to my friend that the – and to the Commission – that it is the intention of Counsel Assisting to summons this witness.


MR McAVOY: That’s the principal of the school.

COMMISSIONER WHITE: You might get Mr Goodwin to – you know, keep it in mind, because he can let you know if there are any slippages there - - -

MR McAVOY: Thank you.

COMMISSIONER WHITE: - - - about the names. When they go up to the screen he’s probably more able to read ahead than you are.

MR McAVOY: Yes, Commissioner, we will see how we go. Can I ask you, Ms Lachsz, what your response was, having received that – having read that email.

MS LACHSZ: I was very surprised. I hadn’t at all anticipated having this response. I got this email the day after we delivered the session at Tivendale School. I assumed that we would continue to have access to the children through the school and, in fact, I had already asked another staff member if they would like to accompany the CLE team on the next occasion.


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MR McAVOY: And as you said earlier, those sessions have not recommenced as far as you’re aware.

MS LACHSZ: We managed to negotiate access to Don Dale through Corrections at the time, so in addition to that hip hop project that was just for that one week and then debrief with the participants the next week, we have delivered CLE sessions in April – April and July of 2015, but never again through the Tivendale School but for one exception when it wasn’t anticipated but other staff were asked to deliver a session at Tivendale School instead of through Corrections.

MR McAVOY: I’m sorry. I should have been more specific with my question. I meant at the Tivendale School, but thank you very much for the answer. Mr Byrnes, I want to ask you some questions now.

MR BYRNES: Yes.

MR McAVOY: This is a fairly general question, but I wanted you to just explain to the Commissioners your view as to the overall utility of the through care program which you worked in.

MR BYRNES: Are you referring to the through care program, the one I did prior to the .....

MR McAVOY: Yes.

MR BYRNES: The through care program was a program where you worked with young people for six months prior to – I worked with young people, it was a program for all ages, but I was the youth worker – with six months prior and six months post-release. Now, with these young people very often – takes them a long time to build up trust with people. They very often have been – have a lot of people come through their lives who are purporting to be there to help and who let them down, change, move on, and it’s very, very difficult for them to – to really begin to trust people. So to take that – have that time, about six months to be able to work with a young person to develop trust and rapport, and make a plan for them on their release was a great luxury for both of us.

And many of the young people also, you must understand, have never sat down and thought about what they’re going to be doing with themselves. They’re sort of – often living very itinerant lifestyles and not settled at all anywhere. So to have that time to be able to spend with a young person beforehand and then follow it up for another six months after they were released I think was an invaluable service.

MR McAVOY: And are you aware of what other pre-release and post-release support existed up until last year, apart from the through care program?

MR BYRNES: Very, very little. I don’t think there’s another support service like that specifically pre and post-release.


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COMMISSIONER WHITE: Is that just relating to out of Darwin, Mr Byrnes, or can you speak for the whole of the Northern Territory.

MR BYRNES: I believe that’s for the whole of the Northern Territory.

COMMISSIONER WHITE: Thanks.

MR BYRNES: There is very little, in general, in services for the whole of the Northern Territory, but that specific pre and post release for young people, no, I don’t believe there was anything else. One of the superintendents told me that before I started doing this down there at Don Dale that there was – that there was nothing prior to the NAAJA through care program.

MR McAVOY: Did that – does that still continue to concern you, that – that that’s the only service that you’re aware of that was providing that sort of care?

MR BYRNES: The degree of the gap in services, you know, can’t be exaggerated. I mean, it’s just so difficult for a young person to come out of Don Dale with otherwise nothing but, very often literally, a plastic bag with a few belongings and a pair of thongs. They very often come out to really nothing at all, and there’s just a gaping hole in services.

MR McAVOY: And it’s not the case that the through care program can pick up all of the detainees being released?

MR BYRNES: They can’t pick up all the detainees being released because, very often – that’s the detainee has a specific release date, which obviously then they can begin to work towards that date, but very often there’s remandees, and there’s people who have been sentenced, and we appeal for a sentence to be reconsidered and they get out. So the through care program does a fabulous job but there’s still many, many other aspects of young people coming out of detention that need to be addressed.

MR McAVOY: I’m going to ask you a couple more general questions and then come to some more specific. Is it possible for you to make some general observations, having worked within Don Dale youth detention facility as to the way in which many of the guards interacted with the detainees?

MR BYRNES: Yep. There is a number of guards who have – want to do their utmost to help the young people, but they’re ill-trained and it’s a complicated job and just being warm-hearted is not enough, and there’s not enough specific training. So – but there’s also a cohort of guards who seem to hold the young people in context, who seem to have no regard for them as individuals, who treat them as an amorphous mass and yes, I see, very often, guards who seem to me to be openly hostile to the young people.


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MR McAVOY: And are you aware of whether that second type of guard, in particular, has continued to exist within the juvenile detention system to the present day?

MR BYRNES: Yes, they are. There’s – not to say there aren’t green shoots out there, and there are many guards who really want the best for the young people, but is there still that degree of antagonism, hostility towards the young people? Yes. Yes, it still exists.

MR McAVOY: I want to ask you the same question about your general observation of the case workers that you worked with and knew from the Don Dale centre. Can you comment about how they interacted with the detainees?

MR BYRNES: I would make an almost identical comment in that I didn’t find any of the case workers who didn’t care about the young people, but the degree of training – of specific training in working with young people, and often young damaged people was – was not there. There was not an understanding, very often, of how a case work for young people like this has to be specified. It’s individual case work, because they’re all different. They all come from a variety of backgrounds and have a variety of problems. There’s something that you see repeated across the board, but a plan for working with young people – for a young person, had to be individualised and that, I thought, was – was sorely lacking.

MR McAVOY: And so is it – are you able to make any observation about the response of the detainees to the type of care and interactions that they received from both the case workers and the guards?

MR BYRNES: Very often I see detainees and I ask them, in this role – because I couldn’t work – and I didn’t work ..... that long, same long period of time usually, and asked them how they’re going on with their case worker. They didn’t know who their case worker was. Sometimes they had been there a fortnight and had never seen the case worker, didn’t know who their case worker was. That lack of that real connection was very apparent with so many of the young people. Likewise, with the guards, there was a – there was a genuine connection with some of the guards, but a lack of – of real connection. Yes, I heard that over and over again from the young people.

MR McAVOY: And by – perhaps by way of contrast, you seem to have described in the very end of your statement the cooking course that you were involved with.

MR BYRNES: Yes.

MR McAVOY: How did the – or can you just discuss it briefly? It’s in your statement but can you then explain how the detainees responded to that course?

MR BYRNES: One example which I thought stood out starkly, and it was very emblematic of how the young people responded to the course, there was one young


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person who used to come every single week and one week he didn’t come. When I saw him the following week I asked what happened, he said they didn’t wake me up. He was annoyed that he didn’t get to come. They look forward to it, they love it, because so much of it – it’s their program. I asked them what they wanted to cook. It’s their involvement, their program and they have – I have never had any trouble with a kid when they’re in the program.

There’s never been a fight, there’s never been a cross word, and I always say to them, the whole point of the program is to learn about cooperation and working together and working up to a standard and having pride in what you’re doing, having pride in yourself, and I think consequently there was a – I think the very – they were highly engaged in the program.

MR McAVOY: How much of that was down to your enthusiasm for it and your ability to communicate with them?

MR BYRNES: I knew a lot of them. Some of them I had known for a long time, but also always – every week volunteers would come out and the volunteers would – they weren’t volunteers so much in cooking, because some of them didn’t know how to cook. They were volunteers in working with young people and just treated them with dignity and respect.

MR McAVOY: At paragraph 20 of your statement – please, operators – you make some observation about – about the diversionary schemes, can you see that?

MR BYRNES: Yes.

MR McAVOY: That operate in Darwin and the improvement over the last six to eight months, at the time the statement was written. Can you just describe for the Commissioners, if you’re able to, what you mean when you say, “Good diversion makes a huge difference.”

MR BYRNES: Diversion is very complicated and it’s also – it’s hard work. People often think if a young person has got diversion they’re getting off with a bit of a – lightly. It’s a lot harder than spending a couple of days in Don Dale, and one of the reasons why it’s so hard is often you have to front up to the person to whom you offended and explain yourself to them, which is very irksome, but when it’s done well and, again, when it’s individualised for this young person it has such a profound effect on them. Often the young people are reluctant to do it, or don’t keep appointments, but if you can really have very, very strong diversion where they’re highly supported to keep their appointments and to see it through to the end, yeah, it’s – time and again it has a profound effect on young people.

MR McAVOY: Was the delay in getting access to – and diversionary programs of real concern to you?


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MR BYRNES: The delay is the biggest issue in my mind because young people – the trail goes cold very fast with young people and if they have – they have to go to diversion because of something they had done a month ago or even longer ago, you make appointment, if they maybe don’t keep the first appointment, then you go back a week later, it means so little to them. It’s the immediacy, and being able to get them on board as soon as you possibly can is a crucial element of diversion working well.

COMMISSIONER WHITE: Can I just ask a question, Mr McAvoy?

MR McAVOY: Certainly.

COMMISSIONER WHITE: In paragraph 22, Mr Byrnes, you talk about the delivery of the diversion program by the YMCA - - -

MR BYRNES: Yes.

COMMISSIONER WHITE: - - - here in Darwin. I’m not sure whether you can answer my query, but I take it that the Department of Corrections, when it was under their auspices, retained the YMCA to deliver these programs?

MR BYRNES: Yes, that’s correct.

COMMISSIONER WHITE: Or was it Territory Families? It would be now, of course.

MR BYRNES: I would imagine so but yes, the Corrections were – employed the YMCA to deliver the programs.

COMMISSIONER WHITE: Alright. Now, were those programs, if you can see, audited by anyone to see whether they were fit for purpose, and whether, in fact, they had outcomes? Were they measured in any way? Were they made accountable for the programs they delivered on diversion.

MR BYRNES: I can’t answer that definitively but, having worked in this industry for a long time, they always are. But I can’t give a definitive answer on .....

COMMISSIONER WHITE: Alright. Perhaps I should ask someone else that. Thank you.

MR McAVOY: And is there any relationship between the access to diversionary programs and the bail decisions that are made by the court?

MR BYRNES: Yes. In that – in that – it’s often used as a – as a step out of – I mean, if you can complete a diversion program successfully, you can, you know, come back to court with having done that, and then re-present yourself to the court, and that’s taken into consideration in your sentence.


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MR McAVOY: You’ve also discussed at paragraph 26 support services at Court. Can you see that?

MR BYRNES: Yes.

MR McAVOY: And that goes over through to paragraph 29. It covers an area that the Commission will be dealing in some depth later, but - - -

MR BYRNES: Yes.

MR McAVOY: - - - if I can just ask you, how – how important are those support services for informing the young people, as they’re going through the process of what’s occurring and preparing them for what’s to come, if - - -

MR BYRNES: Yep. And not just young people. The entire family because, very often it’s a – well, especially for a young person, it’s a whole family issue and so helping the young people and helping the family through that difficult process, being able to give the family supports, getting a young person say to keep appointments and that sort of thing, you know, the family may not own a car. Being prepared to pick the young person up and take them places, being there to be a support. Being someone they can talk to and confide in makes an enormous difference to the young people and to the – and to the general outcomes of the court.

MR McAVOY: And you’re familiar with processes in other jurisdictions outside the Northern Territory where families are integrally involved in the court process?

MR BYRNES: No, not intimately.

MR McAVOY: I won’t press that with you. I’ve got some questions now for you, Mr Hunyor. I want to take you to 11 August 2014. It’s on that date representatives of NAAJA met with representatives of Corrections at the old Don Dale, if I can refer to it that way. You set out in your statement at paragraph 24 some of the people that were present. They included the CEO of NAAJA, Priscilla Collins and another employee, Jared Sharp; that’s correct?

MR HUNYOR: Yes.

MR McAVOY: The Commission – Commissioner Middlebrook was also present?

MR HUNYOR: Yes.

MR McAVOY: Were there – there were a number of other people present?

MR HUNYOR: Yes, there were.

MR McAVOY: You can’t remember their names?


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MR HUNYOR: No. I think that there was somebody from there – possibly one or two people from our through care team and some other people there, I think, from the detention centre staff, but I can’t recall.

MR McAVOY: After the meeting you were offered – the NAAJA delegation was offered a tour of the facilities; that’s correct?

MR HUNYOR: Yes.

MR McAVOY: Had you ever personally, yourself, been on a tour of the Don Dale facility yourself?

MR HUNYOR: No, I haven’t.

MR McAVOY: So that was the first time?


MR McAVOY: So you accepted the offer?

MR HUNYOR: Yes.

MR McAVOY: It’s obvious then, if you hadn’t been on the tour, you hadn’t been to the back area or the behavioural management unit?


MR McAVOY: Can you explain to the Commissioners how you came to be aware that the behaviour management unit cells were where they were?

MR HUNYOR: Sure.

MR McAVOY: And then what your observations were and your response.

MR HUNYOR: My memory is being led through the BMU, almost on the way to somewhere else and we came into the area. I can remember it was dark and dank. It smelt bad. It smelt – foul smelling and I was with Priscilla Collins and Jared Sharp, and I can’t remember which of the Corrections Officers were with us, but they were leading us through and I remember us sort of pausing and looking at each other, and saying, “Hang on a sec, are there kids in there?” Because it was – it was dark, but we could just make out some movement or see something. So we asked the guards and they confirmed that this – that’s where kids were being held, and we were – we were frankly shocked. I was frankly shocked that there were – that there were kids in there and that was – that was our immediate reaction.

MR McAVOY: So you talked about the smell. Are you able to describe what the smell was?---It’s – you know, the stale smell of sort of sweat and – and, you know –


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you know, like a badly cleaned public toilet. You know, they smell of urine and sweat and the – and the dank tropics, the sort of funk you can get in – in a bad share house in Darwin, multiplied.

MR McAVOY: I will have to take your word for that, Mr Hunyor.

COMMISSIONER WHITE: It may not be our experience, Mr Hunyor.

MR McAVOY: If you were talking about Brisbane, I might have been able to make a comment. But the smell was something that obviously has stuck with you.

MR HUNYOR: Yes.

MR McAVOY: You’ve mentioned it. The lighting being very low.

MR HUNYOR: Very dim, yes.

MR McAVOY: The combination of those two things in themselves, that’s a matter for concern in and of itself, isn’t it?

MR HUNYOR: Yes, it felt like a dungeon. It felt draconian.

MR McAVOY: And did you know who the detainees – or, sorry, first I will ask you how many detainees there were in the BMU on that August day.

MR HUNYOR: I didn’t – I didn’t know. We asked and I can’t remember now if we were told how many were there.

MR McAVOY: Did you – were you concerned to find out who was in there?

MR HUNYOR: We were concerned about the welfare of – of the kids, because we didn’t know who they were, and they weren’t – whether they were our clients, whether they were possibly CAALAS clients or NT Legal Aid clients or otherwise, I mean, always makes it difficult to be prying into the circumstances. If we represented those kids, then we could obviously take it upon ourselves, but our first concern was that there were kids in there and it seemed to be an inappropriate place for kids, and so we wanted to try to get to the bottom of it as best as we – we could, mindful also that Corrections would be entitled to and likely to say, “Well, hang on, not necessarily any of your business if they’re not your clients.” So you’re always in that situation, making those sort of inquiries off your own bat.

MR McAVOY: So the next day an email was sent to the Commissioner?

MR HUNYOR: Yes.

MR McAVOY: Commissioner Middlebrook.


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MR HUNYOR: Yes.

MR McAVOY: That’s annexure B to Mr Hunyor’s statement. Do you recall that email now?

MR HUNYOR: I do. Yes, I do.

MR McAVOY: You – do you have a strong recollection of preparing that email?

MR HUNYOR: I have a fair recollection of it, yes.

MR McAVOY: Because you can see that there are quite a number of, of questions that are raised towards – at the bottom of that email.

MR HUNYOR: Yes.

MR McAVOY: Relating to how long the detainees spend in their cells each day, how long they’re kept in darkness, what exercise they get. So they were all your present concerns, having viewed the circumstances in which those detainees were being held.

MR HUNYOR: Yes. That’s right.

MR McAVOY: And did you get a response to that email.

MR HUNYOR: We did a few days later.

MR McAVOY: And so at paragraph 28 you talk about a follow-up email - - -


MR McAVOY: - - - and then their response coming later on 14 August; is that correct?

MR HUNYOR: Yes. That’s correct.

MR McAVOY: And that’s annexure D. If we could just see annexure D, please. And we see that that is a letter directed to you as principal legal officer.

MR HUNYOR: Yes.

MR McAVOY: If we can just scroll up, please, you see that’s on Department of Correctional Services letterhead.

MR HUNYOR: Yes.


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MR McAVOY: And then if we can scroll down. Next page, please. Sorry. If you can go to the final page. Sorry. And you see that there’s – that’s a letter from Commissioner Ken Middlebrook.

MR HUNYOR: Yes. That’s right.

MR McAVOY: Dated 14 August. In paragraph 31 you make the observation that the response from the Commissioner did not, in your view, adequately deal with NAAJA’s concerns.

MR HUNYOR: Yes.

MR McAVOY: You’ve set out some of the – perhaps all of the concerns that you had in the remainder of that paragraph. Is that – is that the totality of your concern with the – the – as set out in paragraph 31, concerned with the response from the Commissioner?

MR HUNYOR: Yes. That’s the essence of it. The response from the Commissioner didn’t, to me, convey a sense that the situation was regarded by the Commissioner as being unacceptable and that he was going to do something urgently to fix it. My initial email didn’t seek to challenge the facts the kids were in there at all and I wondered whether or not that is something we should have challenged – what the hell are kids doing in that place at all – but I was mindful of the infrastructure difficulties that the Commissioner had, and that – that the Don Dale wasn’t – didn’t necessarily give the Commissioner all the options he might have liked. I guess I was trying to be – understanding the professional difficulties he had in running a centre in those circumstances. But I still regard it as inappropriate that kids be there for anything other than the absolute minimum time that was needed to deal with an emergency situation, for example. And so once we established that he didn’t share that concern, I think we thought that the response was inadequate.

MR McAVOY: Did it cause some – and you’ve said in your evidence earlier that there were points of disagreement between NAAJA and the Commissioner, and you were able to continue to work in a professional manner.

MR HUNYOR: Yes.

MR McAVOY: This particular issue, seeing the unacceptable circumstances of those detainees, did that cause you to question that relationship?

MR HUNYOR: Yes. I think it was – it was ultimately the treatment of children that – that I thought was the point that – that caused our relationship to become unworkable, the relationship generally between the Commissioner and NAAJA, and that NAAJA maintained that young people were being treated poorly. And we were persistent in our criticism about that and we agreed to disagree for so long, until I think it became matters about which we were sort of implacably opposed.


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MR McAVOY: Having seen firsthand the conditions in which young people were being kept, did that – do you think that may have given you some insight into the events that later happened in the behaviour management unit?

MR HUNYOR: They – that was the chickens coming home to roost. I mean, that seemed absolutely inevitable. To treat – to treat anybody but particularly young people in that way, it was absolutely no surprise that they would – that they would run riot. That seemed absolutely inevitable and was exactly why – they were issues that we had raised, not just then but generally the culture of treatment of kids was something we were concerned about.

MR McAVOY: Ms Lachsz, you’ve talked about it already but I just want to ask you some questions about their – about any attempts or the ability of the legal education team to renew relationships with the school. Can you just explain – discuss how – how communication was or was not attempted with the principal of the school.

MS LACHSZ: So NAAJA made a few attempts to gain access to the children through the school again. I was in Katherine so I was unable to attend a meeting between the principal and some other Tivendale staff, Jared Sharp, Will Crawford, who was my predecessor, Alexandra Jones; I think that’s everyone. So during that meeting an attempt was made to gain access again but we were told that from now on any legal education would have to occur through Corrections time. I know that Jared, my manager, Jared Sharp, forwarded his concerns to the Children’s Commissioner and also had a meeting with the Department of Education officials. But unfortunately none of these attempts were effective.

MR McAVOY: Yes. I might just turn briefly to you now, Mr Byrnes. You heard Ms Lachsz describe earlier certain conduct attitude being displayed by the teachers at the Tivendale School.

MR BYRNES: Yes.

MR McAVOY: Is that in any way consistent with any observations you were able to make about approaches to the kids that sort of – you’ve already spoken about people who didn’t care, but is that consistent with what you’ve observed?

MR BYRNES: Yes. It is. I – I worked with one young person who was effectively suspended for seemingly indefinite amount of time from the school. Was in the – this was in the – the now Don Dale, the old Berrimah prison, and was in the HSU, the high security unit. He was – it was extremely hot. He had nothing to do all day. He had no programmes. He complained bitterly to me he was getting no education. And when I complained to the school he was getting no education they said to me what he has is he has some school books there, some books on arithmetic and English, and can ask one of the guards to hand him the book and he can do some work throughout the day and a teacher will come at the end of the day and mark any work that he has done. Needless to say, he was doing nothing. He was in a state of – of torment.


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MR McAVOY: Yes.

MR BYRNES: He was hating – he was hating every day. He was sitting there in the heat with absolutely nothing to do all day. On another occasion I spoke to the principal about a young person who was – had been suspended from school and was getting, again, nothing, no programmes. And the email – in the email the principal said to me that he was 17, not compelled to give him an education at 17, and anyway, whether he was getting programmes or not, it has nothing to do with her, because what happens when he walks out of the school door has nothing to do with her. And I would suggest it has something to do with everybody, all of us in this room and everybody in the Darwin community.

MR McAVOY: I would like you, Mr Byrnes, just to look at paragraph 52 of your statement. We’ve heard about education programmes for the detainees about their rights.

MR BYRNES: Yes.

MR McAVOY: Paragraph 52 you make an observation about the Youth Justice Officers’ understanding of the detainees’ rights as well.

MR BYRNES: Yes.

MR McAVOY: Do you think that that was a general problem for the Youth Justice Officers?

MR BYRNES: Well, I do. I think it can’t be seen as anything but a general problem because we were talking to the young people about the rights they have lost being in detention, but the rights that they still have while they’re in detention. And there’s always when you’re delivering a programme like this, a guard, Youth Justice workers around, and this one said to me afterwards, “That was very interesting. Where did you get that information from?” And I said the Youth Justice Act and he seemed to be a bit – he raised his eyebrows at that. So clearly if that’s the case, they can’t be having the Youth Justice Act as a part of their general discussions or their staff meeting. It can’t be something that’s prevalent in their – in the teachings and in the conversations that they have on a regular basis.

MR McAVOY: Yes. Well, when you read paragraph 52 of your statement and you then go on to read paragraph 53, in one sense it raises a very – I would suggest a very disturbing issue in relation to the culture within the detention facilities where there’s a lack of understanding on any side about the rules and the rights which apply within that setting.

MR BYRNES: I think that’s correct. I think it is a hard thing to describe, but I think it was so much at Don Dale, the absence of things. The absence of their rights being clearly enunciated to them. The absence of due care in many situations. And if a young person – and they told me repeatedly over and over again that they are not


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given a list of their rights when they’re brought into Don Dale, so they don’t know their rights and if the – if the Youth Justice Officers aren’t familiar with them either, their rights seem to be, and I’ve heard this on many occasions, an arbitrary thing.

MR McAVOY: Perhaps there’s not a direct connection, but are you able to make any observation about the possibility for a culture that understands and values therapeutic care where there’s not an understanding of the fundamental rules and responsibilities?

MR BYRNES: I believe it’s impossible to have a genuine environment where therapeutic care, understanding of trauma and how it affects young people, the effects of trauma on the developing brain – I don’t believe it’s possible to have a culture of therapeutic care without a fundamental understanding of who’s responsible for what and what everybody’s rights are, the rights of the Youth Justice workers, along with the rights of the children, the young people in detention, the superintendent, everybody. I think it’s fundamental to understand that, to genuinely be delivering high quality care to these young people.

MR McAVOY: And in that regard, you’ve made some comments about individual case planning.

MR BYRNES: Yep.

MR McAVOY: How important is individualised case planning? You spoke about it a little bit earlier but in the setting that we’ve got with the Don Dale Youth Detention Centre where the detainees present with a range of different complex behaviours - - -

MR BYRNES: Yes.

MR McAVOY: - - - is it fair to say that individual case planning is an absolute necessity?

MR BYRNES: It’s essential. It underpins everything. To have a case plan that’s designed around that specific person is – it is crucial. Because they – they are all different and have a range of different backgrounds and it’s even just a matter of knowing their individual stories and being familiar with that young person and – and who they are and how they think. It’s crucial to – this is exactly what all of the work in through care and all of the work that I did as a Youth Justice Officer was about working towards that individual young person’s strengths and what their desires and wants are.

MR McAVOY: And that’s how you did it, but how else was it performed in Don Dale?

MR BYRNES: Slipshod. I mean, it’s not as though you could say ..... but there was supposed to be an individual care plan for each young person. I’ve been asking for as long as I have been there to see one. I’ve never seen one. So – inconsistent.


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MR McAVOY: Okay. Thank you. Mr Hunyor, in your statement at paragraph 50 you talk about a youth justice conference organised by NAAJA together with Red Cross and the Northern Territory Council of Social Services.

MR HUNYOR: Yes.

MR McAVOY: Do you recall that conference?

MR HUNYOR: I do. Yes.

MR McAVOY: And you describe at paragraph 50 a young person speaking out at that conference about his treatment in detention.

MR HUNYOR: Yes.

MR McAVOY: Can you recall in general terms what he said?

MR HUNYOR: I think it was the first time I heard the allegations of children being egged on to eat bird – bird shit and that was the most specific and the most sort of, you know, attention-grabbing aspect of his evidence but he talked generally about treatment by – by guards and – while in detention and how it made him feel.

MR McAVOY: So you’re aware that the particular youth might say something?

MR HUNYOR: I wasn’t involved in organising it. I was aware that a young person was coming to – to tell their story but that’s as much as I knew beforehand. I didn’t know what he was what he was likely to say. I didn’t know – I had – didn’t know who it was. I had nothing to do with him.

MR McAVOY: And so you describe in the paragraphs that follow some interaction with – with the Attorney-General and with Commissioner Middlebrook.

MR HUNYOR: Yes.

MR McAVOY: If we can perhaps cut to the chase, the – there was some – some, as you put it, terse exchanges between Jared Sharp and the Commissioner Middlebrook.


MR McAVOY: At a meeting discussing this particular issue.

MR HUNYOR: Yes.

MR McAVOY: Was it in relation to another issue?

MR HUNYOR: It was in – well, it really started off with this issue. So it was a meeting with the Attorney-General that was sort of a regular catch-up that we had.


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We hadn’t expected that Commissioner Middlebrook would be there, but when the meeting commenced he and some others came into the room and it became clear that this was the issue that was going to sort of dominate the meeting. We went on to discuss some other things. I can’t remember what they were, but it made for a pretty tense and relatively short meeting because we weren’t going to get anything else done that day.

MR McAVOY: And then the second and third sentences of paragraph 53 - - -

MR HUNYOR: Yes.

MR McAVOY: - - - it appears that you’re saying that Jared Sharp said that other stakeholders were reluctant to speak out for being attacked.

MR HUNYOR: Yes.

MR McAVOY: That’s being attacked by Commissioner Middlebrook.

MR HUNYOR: By Commissioner Middlebrook. Yes. Verbally. Yes.

MR McAVOY: Sorry, verbally attacked. How did the Commissioner respond to that allegation?

MR HUNYOR: My – my best memory is he, you know, denied it. He didn’t accept that – he didn’t accept that that was a – that was a fair criticism.

MR McAVOY: Were there raised voices in this meeting?

MR HUNYOR: It was – it was sort of simmering anger, if I can – from the Commissioner, and I think I was certainly taken aback, as I think I could observe Jared Sharp and Priscilla were, at, I guess, the degree of emotion. Voices weren’t raised but there was – there was quite a lot of heat.

MR McAVOY: You observed in the previous paragraph, paragraph 52, that the Commissioner appeared to you to be very angry.

MR HUNYOR: Yes.

MR McAVOY: That was in his general demeanour, then, if he wasn’t raising his voice.

MR HUNYOR: That’s right. I had met with him many times, and his demeanour seemed, you know, quite agitated. He was, you know, sort of, physically a bit sort of red in the face and he seemed angry.

MR McAVOY: Did – had you seen him in that state before?


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MR HUNYOR: No. No. I hadn’t.

MR McAVOY: So were you shocked by the extent of his anger?

MR HUNYOR: Yes. I was.

MR McAVOY: Do you think that it may have just been a – perhaps a personality conflict between the Commissioner and Mr Sharp?

MR HUNYOR: I think that was a part of it. It seemed to me that the Commissioner sincerely believed that NAAJA had set out to embarrass him and had done so in a – his view was that NAAJA had done so in a deliberate way to – to embarrass him at the conference by putting up a young person to say something that, you know, would reflect poorly on him. So I could understand why he – he was that angry, but it was a surprise to – to us because not only was it not true but I think it reflected a real breakdown in trust, as he thought, that that was something that any of us would have been a party to.

MR McAVOY: Well, the exchange between Mr Sharp and the Commissioner, as you’ve just explained it, sounds as though it was in relation to matters of substance, rather than personality. Perhaps, is that correct?

MR HUNYOR: I think it was a combination of things. I think there was a grievance about what had happened at the conference but there was a tension that had developed particularly between Mr Sharp and Commissioner Middlebrook and that’s what Jared was then referring to about having been attacked on an earlier occasion. So there – you know, I was aware that there were these – these underlying issues, but this seemed to me to be what, you know, very much brought it to a head.

MR McAVOY: Mr Sharp was at that time on the Youth Detention Review Advisory Group.

MR HUNYOR: Yes.

MR McAVOY: Is it fair to say he was the most experienced person within NAAJA to sit on that group, dealing with youth justice matters.

MR HUNYOR: Yes. There were other people, Shahleena Musk and Terry Byrnes, who were also very experienced, but Jared had a combination of practical experience and that sort of policy, broader experience around Corrections and through care, so I think he brought all of those things together.

MR McAVOY: And so there was a real effect for NAAJA in terms of having the most experienced person in the area stand down from that committee.

MR HUNYOR: That’s right and also – sorry.


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MR McAVOY: But you were prepared to do that to keep the peace.

MR HUNYOR: That’s right. Also asking someone like Ms Musk to do it on top of the extraordinary workload she carries, the head of our youth justice practice, wasn’t ideal. She really didn’t need more commitments like this. But it was something that – it was the best we could do given the relationship had clearly broken down.

MR McAVOY: Mr Hunyor, I just want to ask you about your recommendations at paragraph 56.

MR HUNYOR: Yes.

MR McAVOY: The – at 56A you talk about the need for significantly increased funding for Aboriginal Torres Strait Islander legal services in the Northern Territory. So I assume that that’s directed at both NAAJA and CAALAS.

MR HUNYOR: Yes.

MR McAVOY: The paragraph speaks for itself. Paragraph 56B however speaks about an inspector of custodial services. Can you just explain your thinking behind the role of an inspector of Custodial Services.

MR HUNYOR: I think the – the thinking is to have someone who has powers to both receive complaints but also conduct unannounced visits and inspections as well as periodic inspections and reports, to be able to ensure that some of the systemic and cultural issues that have very much been exposed in the last six months are actively monitored and examined and reported on, and so there’s real government accountability. An organisation like NAAJA can do some of that sort of work and attempt to do that, as we did, raising complaints with the Commissioner, but frankly, I think the events of the last few years show that that’s not enough. There were many things that we didn’t know, we couldn’t have known, and perhaps if we had more time and resources and powers we might have been able to do a hell of a lot more about. So having effective independent advocates like – organisations like NAAJA and CAALAS is critical, but having an office with powers of investigation and compulsory powers and the resources that go with that, in my view, is, with respect, critical.

MR McAVOY: The aspect of that recommendation which I would like you to just explain, and I’m sorry if I just missed it, but you’ve expressed a need for reports to be tabled in Parliament promptly.

MR HUNYOR: Yes.

MR McAVOY: How critical is that to the effectiveness of the role of someone like an inspector?


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MR HUNYOR: I think it’s vital because there are situations that, you know, are allowed to – to fester and go unaddressed. It was, unfortunately, I think, one of the features of some of the investigations by the Children’s Commissioner that they were – they took an incredibly long time to be finalised, and I expect a lot of that goes to resources, and I don’t intend to be critical, but they took a long time to be finalised and then to be tabled and then for any work to be done and by that time some of the horses have bolted. And if we look at the situation of BMU and the sort of building tensions there, if you had a situation where you could have an inspector who could go straight down to BMU and be inspecting it, reporting on it, demanding action on it, investigating, putting pressure on, I think we would be much – you would hope that situations like that might be defused and also that systemic problems might be more promptly addressed.

MR McAVOY: Thank you. Now, you’re not working in the Northern Territory at present.

MR HUNYOR: No.

MR McAVOY: Mr Byrnes, I just want to ask you finally about the security classifications system.

MR BYRNES: Yes.

MR McAVOY: You’ve made some comments about that in your statement. Is that a – do you – and I take it that it’s your view that it’s not an effective system for managing detained youth who are often trauma laden?

MR BYRNES: Yes. Yes.

MR McAVOY: Can you just explain why that is?

MR BYRNES: Very often the reasons why a young person has – has played up and has got into trouble are so complex that to merely, after sometimes a minor incident, to put somebody into the highest classification, which is the red shirt, to go from red shirt and to lose all your privileges, and for it to be so hard to get down a shirt, it can take so long, it can seem, you know, unfair to the young people very often. And they have said this to me on many occasions. And, of course, there’s some times when a young person, you know, does their utmost to do everything right, to get himself down a classification, and then still for some reason which is inexplicable to him, they don’t go down the classification and they see it as being treated unfairly. And what perturbs me about this is the very worst message you can deliver these young people is that even if they try and do the right thing, things won’t work out for them.

MR McAVOY: Yes.

MR BYRNES: So, you know, the classification levels, I can understand they are classification levels, but I think they should be much more transparent than they are.


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Young people seem to be in a bit of sea about classification levels and I would think it also wouldn’t be too much to ask for there to be rights of appeal. I suggested this, that, you know, a young person feels he ought to be down a level, that, you know, he could put together – forward some sort of a case or that they could make a pact with a young person that if he stays out of trouble for one more week that, you know, he will definitely be going down a classification level, so they feel as though they’re in command and not just a cork bobbing in the sea. So, yes, I think that it could be a lot more clarified. It’s not – in all the years I’ve been doing it, the reasons for classification are not really very clear to me.

MR McAVOY: Yes. Thank you. They’re the questions I have in-chief, Commissioners.

COMMISSIONER WHITE: Yes. Thanks, Mr McAvoy. Mr Byrnes, you haven’t put a wish list into your statement to the Commission but I’m sure that you have one. Where do you see the – you’ve written a lot about child protection and, of course - - -

MR BYRNES: Yes.

COMMISSIONER WHITE: - - - that’s not quite the focus today, and we’ve certainly absorbed that. But in terms of the detention facilities, classification, obviously, is one of them which you have just mentioned – anything else that you think is a burning issue?

MR BYRNES: Education. Education of the people, the Youth Justice workers, and how to work with young people. Education and understanding – I’m only reiterating. The effects of trauma on young people, on developing minds, and how the trauma directly impacts their ability to empathise and their ability to function. These young people, very often, are – they’re a strange kind of combination of being on one hand old before their years because they’ve been chased by cops and locked up and that sort of thing, but at the same time immature, not being able to keep appointments and, you know, get things done on time the way most 15 year olds can. And so they’re highly complex, and working with these young people is a very, very difficult job, and you need really, you know, quite specific training to do it. I think training and education – it’s the relationships within Don Dale and within detention centres that is the absolute bedrock of whether it’s going to work and be effective or not. So my wish list really comes down to training and education.


COMMISSIONER GOODA: You talked about diversion, and diversion can happen at very – various points in this whole system, you know, contact with police, the first contact with police to sentence, sanction, diversion to post-release. Where do you think the best place for value for money, we should actually look at diversion?

MR BYRNES: The police, on the ground, like, implementing diversion before they even get to court, you know. To – for there to be more – and I don’t know how


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many there are but I know that it’s not completely effective – you know, police diversion officers, police youth officers. You know, officers, again, who are trained specifically in working with – with difficult youth and with damaged youth, as so many of them are, and getting diversion happening before it even hits the court system.

COMMISSIONER GOODA: And you are aware of any work done, say, at a cost benefit analysis of the cost of diversion versus the cost of keeping on putting people through a system?

MR BYRNES: I wish I could.

COMMISSIONER GOODA: What’s your sense?

MR BYRNES: My sense is that it makes an enormous amount of sense and it’s much, much cheaper. And also, I mean, to get very, you know, elastic with those ideas: you really can divert somebody from being in and out of a prison system and then possibly even going into the adult prison and then when they’re out being on social service on benefits, I mean, over a lifetime, of course, the amount that you save is indescribably large. So, yes, getting in early and trying to help young people see that there is another life out there for them than the life they’re leading, to really genuine believe that they can be doing something else with themselves, I think, is the – I think it would make such an enormous difference. I wish I could put it into dollar terms but I - - -

COMMISSIONER GOODA: I lived in Redfern in my time in the Human Rights Commission, and having witnessed the programme we’ve spoken a fair bit about here, the clean slate programme, the young fellows getting out of prison and getting supported by the tribal warrior mob saying this is the first time anybody has cared for me is pretty poignant. You know, that post-release programmes you spoke about.

MR BYRNES: Yes. I believe it makes an enormous difference.

COMMISSIONER GOODA: He just said, “If there wasn’t anyone to care for me I would just fall back into my old habits again.”

MR BYRNES: It’s all too easy to go back to your old habits, and most of us do. We have our habits, and the things that we’re comfortable with and familiar with. And that unfortunately is very often familiar territory for these young people, and doing well and being praised for how they’ve done and everything is unfamiliar territory. But they often feel a bit shaky in that – in that territory. It takes them a while to feel comfortable in it.

COMMISSIONER WHITE: Ms Lachsz, Mr Byrnes has mentioned the Australian Children’s Commissioner and Guardians Model Charter of Rights for young people detained in youth justice facilities in his statement, but I take it as a legal educator you were talking about that charter of rights. Is that something that you would like to


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see up on the notice board in Youth Detention Centres, where the young people can see them clearly and – and those who work in those centres?

MS LACHSZ: So the lesson that we deliver, or used to deliver was very much focussed on the Northern Territory Youth Justice Act and regulations. So it would be great to have both. My only concern is – it is important to have those sort of posters up, but I don’t think that it can be used as a replacement to actual discussions. These can be quite complex ideas to break down. So I think having those interactive role plays or debates with the children is really important. The Youth Justice Act makes it very clear that as soon as practicable upon entering the detention centre, that those young people should be told what their rights and responsibilities are. So I think that in an ideal world you would have a multi-pronged approach of having an organisation like NAAJA or CAALAS delivering legal education in line with, sort of, best practice delivery for young people, and specifically for Aboriginal people. You would have ready access to posters and that sort of information and well-trained staff to constantly be reminding the young people of what their rights are while they’re in there.


MR McAVOY: If I might follow on from that, Commissioner, before we commence with cross-examination, Ms Lachsz, is it the case that you would say that those legal rights, or those rights education programmes ought to be part of the curriculum which is delivered in each block for – for the detainees, or is it something – with the Tivendale school, or is it something that needs to be delivered externally by groups such as NAAJA and CAALAS where there’s a different relationship between the detainees and the educators?

MS LACHSZ: I think that the same message should be given by everyone involved. So it’s important for NAAJA and CAALAS to give that information, but it lends what we’re saying authority if the staff in there are saying that this is – these are what the rules are and you can expect that we will respect your rights and you will respect your responsibilities while you’re in detention. But I do think that – we have gotten back into – well, not to the school, but through Corrections we have gone back to Don Dale but we’ve never delivered on rights and responsibilities again and I’ve asked staff not to, not because I don’t think it’s important but I was worried that given the history at Tivendale School that we would be asked not to come back though Corrections time as well. So I think it needs to be a cultural shift.

MR McAVOY: Thank you. Commissioner, there are – there’s one approved application for leave to cross-examine. I’m sorry. I think there’s recently been a second. So there’s two. Mr Lawrence and Mr Tippett, and I understand that Ms Dwyer might have some questions.

MS DWYER: Can I just indicate, we got through an indication from Mr Middlebrook’s counsel last night that I was handed today about an application to examine. I haven’t seen any from Mr Lawrence so I understood that that was going


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to be communicated to counsel for witnesses so that we can raise it with them and we would have an opportunity to get documents if they’re relevant. But that hasn’t been done. That’s my concern.

COMMISSIONER WHITE: Then perhaps leave won’t be given then.

MS DWYER: .....

COMMISSIONER WHITE: Mr Middlebrook’s counsel, however, should now ask the questions and you can give me some advice about what’s happened with Mr Lawrence’s application. I don’t think I - - -

MR McAVOY: I will have some inquiries made.

COMMISSIONER WHITE: I didn’t think I had seen it, but perhaps I’m wrong about that.

MR TIPPETT: Thank you, Commissioner.

Mr Hunyor, you know that I act on behalf of Mr Middlebrook and I need to ask you a number of questions in relation to matters contained in your statement.

COMMISSIONER WHITE: Thanks, Mr Tippett.

MR TIPPETT: Could we have up on the screen paragraph 24 of Mr Hunyor’s statement, please. That’s the 11 August 2014 meeting. You’ve given some evidence about that. You and Priscilla Collins and Jared Sharp, among others, were invited to attend Don Dale; correct?

MR HUNYOR: Yes

MR TIPPETT: That invitation was one extended to you by Mr Middlebrook in Corrections; correct?

MR HUNYOR: Yes.

MR TIPPETT: There was a basis for extending that invitation to you, at least you would have understood, namely that Mr Middlebrook wanted you to see the conditions in Don Dale?

MR HUNYOR: Yes.

MR TIPPETT: He wanted you to see the conditions in Don Dale because he was concerned about the state of the infrastructure and the ability of Corrections to deliver services.

MR HUNYOR: Yes.


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MR TIPPETT: But, in fact, he – and he didn’t merely extend an invitation to you or Jared Sharp, but also to the CEO of NAAJA, Priscilla Collins, because he was particularly concerned something needed to be done.

MR HUNYOR: Yes.

MR TIPPETT: He wanted your support to do it.

MR HUNYOR: I guess so. Yes.

MR TIPPETT: And now, to your knowledge had Priscilla Collins been to Don Dale at any time?

MR HUNYOR: I don’t know.

MR TIPPETT: Had Jared Sharp been to Don Dale at any time prior to this meeting?

MR HUNYOR: I couldn’t say. I think he had, but I – I would expect he had, but I don’t know.

MR TIPPETT: And I think it is your evidence that you had not been to that facility prior to 11 August 2014.

MR HUNYOR: That’s right, yes.

MR TIPPETT: And by that stage you had been CEO of NAAJA for four years, is that right or is that 2010 you were CEO, I think?

MR HUNYOR: That must be about right, four years.

MS DWYER: PLO, rather than CEO.

MR TIPPETT: PLO. One or the other.

MS DWYER: Well, your Honour, it makes a difference because Ms Collins is the CEO.

MR TIPPETT: Right.

MS DWYER: And Mr Hunyor is the PLO, and that’s not a pedantic - - -

MR TIPPETT: That’s taken. Alright. Very well. So what happened at that meeting was that Commissioner Middlebrook outlined a range of particular concerns he had in relation to the children and how they were kept at Don Dale; is that right?

MR HUNYOR: Yes – yes.


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MR TIPPETT: And then you were invited to look at the detention centre for various purposes and taken through to do that by Mr Caldwell?

MR HUNYOR: Yes, that’s right.

MR TIPPETT: And you were asked to look at the centre because of the ageing infrastructure of it?

MR HUNYOR: Yes.

MR TIPPETT: The difficulties associated with the movement of people around the centre?

MR HUNYOR: Yes.

MR TIPPETT: The behavioural management unit.

MR HUNYOR: We were led through the behavioural management unit.

MR TIPPETT: Yes.

MR HUNYOR: I – so my impression was we were almost being taken there on the way to somewhere else. There was almost something incidental about it, that I can’t really explain. It wasn’t that we were being taken to the BMU to be shown how bad it was. It was we were being taken on the way to somewhere else.

MR TIPPETT: I just don’t see the - - -

MR HUNYOR: .....

MR TIPPETT: That’s an impression that doesn’t find its way in your statement.

MR HUNYOR: No, it doesn’t.

MR TIPPETT: No. So - - -

MR HUNYOR: I don’t have a basis except that that was how I felt at the time.

MR TIPPETT: Yes. Now, in fact, you were taken to the BMU and shown that area.

MR HUNYOR: We were led through it, that’s right.

MR TIPPETT: Yes. And the BMU had been raised by you with Mr Middlebrook as one of the concerns that he had.

MR HUNYOR: I can’t recall that. I can’t recall.


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MR TIPPETT: Now, you – it was pointed out to you, as you went through the facility, that it was in poor repair.

MR HUNYOR: The facility generally, yes.

MR TIPPETT: And Mr Middlebrook told you that, in his view, the facility wasn’t fit to hold children.

MR HUNYOR: I can’t recall him saying that but I – I – the way that I recall Commissioner Middlebrook raising it was that the facilities were a problem in his ability to effectively manage the detention centre. So I didn’t understand his concerns to be about the welfare of the kids, but more about the difficulties they raised for him. That’s not to say he wasn’t concerned, but that his emphasis in raising those things was to demonstrate how hard it made for him and his staff to run the centre effectively. That was the emphasis of his concern.

MR TIPPETT: For the welfare of the detainees.

MR HUNYOR: I don’t recall that being his emphasis.

MR TIPPETT: Now you, after seeing the centre on 11 August 2014, on the 12th, I think you wrote an email regarding – setting out your concerns.


MR TIPPETT: Had NAAJA set out any concerns relating to the Don Dale Detention Centre prior to that date?


MR TIPPETT: Have you seen any documents to the effect that your lawyers expressed concerns or had received complaints from clients in relation to the centre - - -


MR TIPPETT: - - - prior to that time, 11 August 2014?

COMMISSIONER WHITE: I think Mr Hunyor has already answered that, he says he can’t remember. MR TIPPETT: Yes. Very well, I will move on.

MR HUNYOR: Yes.

MR TIPPETT: Now, you put together a number of annexures, V, C and D. They’re emails from you to Mr Middlebrook and return.


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MR HUNYOR: Yes.

MR TIPPETT: He responds to your emails, your email of 12 August on 14 August.

MR HUNYOR: Yes.

MR TIPPETT: Is that right? With an extensive response, is that right? Well, a letter addressing each of your concerns.


MR TIPPETT: Now, did you respond to that letter?

MR HUNYOR: I wrote – I do recall I wrote back to him to say thank you, but we were going to raise the issues with the Children’s Commissioner. So I did get back to him to do him the courtesy to let him know we were taking it up with the Children’s Commissioner.

MR TIPPETT: Yes. And did he respond to that.

MR HUNYOR: He might have said, “Thanks for letting me know”, or something like that, but I can’t recall.

MR TIPPETT: So the – you make a note here in paragraph 31, if we can go to paragraph 31, thank you, that there was – you say in particular he gave no clear sense when the confinement of the children in BMU might end and so on. Did you understand that the confinement of detainees was the province of the correctional services?

MR HUNYOR: Within BMU, I thought it was.

MR TIPPETT: Yes. And indeed in the rest of the detention centre, Don Dale, as to status of the detainee, namely whether the detainee was a green shirt or a blue shirt and so on was the - - -

MR HUNYOR: They were matters for Corrections, yes.

MR TIPPETT: They were operational matters.

MR HUNYOR: Yes.

MR TIPPETT: That’s right? And now, you were advised by Mr Middlebrook that there was particular concern, or he held a particular concern, about the risk of certain detainees breaking out of the centre?

MR HUNYOR: Yes.


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MR TIPPETT: And that that risk had been one based on their previous behaviour?

MR HUNYOR: Yes.

MR TIPPETT: And that it was important to have a place available that could be used to ensure that detainees of such risk were not a further risk, either to other detainees or to the community?

MR HUNYOR: Yes.

MR TIPPETT: Now, he was concerned to find a new facility, wasn’t he?

MR HUNYOR: Yes.

MR TIPPETT: Yes. And he had spoken to you about a new facility, but the fact that the money was just not being made available to him.

MR HUNYOR: I think that’s right. Yes.

MR TIPPETT: And that, in fact, he had made some – quite a number of inquiries in relation to various facilities in various places that might be utilised by the Northern Territory as a youth justice centre or complex.

MR HUNYOR: I can recall that we discussed the difficulties in finding other options.

MR TIPPETT: Yes. And he was concerned to make you fully aware of the problems at Don Dale in the context of his inability to get sufficient funding to move children out of that centre; isn’t that right?

MR HUNYOR: I – I would accept that was one of the reasons he was raising this with us, yes.

MR TIPPETT: Now, he – and later on, of course, he took you out to, or invited you to come out to the old Berrimah jail.

MR HUNYOR: Yes.

MR TIPPETT: And the purpose for that was to take you through that facility and show you where children, youth detainees would be moved from the Don – the old Don Dale centre into this new Don Dale complex?

MR HUNYOR: Yes. I think they might have even been moved by that stage. I could be wrong .....

MR TIPPETT: He was – he wanted you show you. I withdraw that. The purpose as you understood it was to show you the new facilities, and to allow you to see that


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while those new facilities in his view weren’t great, nevertheless they were the best in the circumstances.

MR HUNYOR: They were better than the old facilities.

MR TIPPETT: That’s right.


MR TIPPETT: And at that time he was still trying, to your knowledge, to get sufficient funding to develop a youth justice centre?

MR HUNYOR: No, I didn’t know that. In fact, I thought his preference was to redevelop the old Don Dale – sorry, the old Berrimah into a youth justice precinct.

MR TIPPETT: Precinct. Alright.

MR HUNYOR: Rather than a brand new facility, which was what NAAJA was advocating for.

MR TIPPETT: Alright. So – and, well, I suggest to you that you were aware at that time that he couldn’t – he was not in a position to produce a new facility because government hadn’t approved the cost.

MR HUNYOR: That’s right. Absolutely.

MR TIPPETT: And so consequently he was dealing, to your knowledge, as he discussed with you at the – in January 2015, with the old Berrimah complex, turned into the – described as the new Don Dale, because literally he had no other options.

MR HUNYOR: That’s how he explained it to us, and I wasn’t really in a position to – to take a different view. I don’t have expertise in correctional infrastructure and those sort of things. I know NAAJA had raised its view that money would be better spent trying to repurpose or refit the old Don Dale, as it may be more appropriate than a decrepit adult prison. They were our views, but we were mindful of the fact that we – as I say, we weren’t experts in that area, so we could offer that view, but he had a different view and we, again, we agreed to disagree on that.

MR TIPPETT: And you provided cost analysis, did you, of redoing the new - - -

MR HUNYOR: No.

MR TIPPETT: - - - new Don Dale or it was just a suggestion?

MR HUNYOR: We didn’t have the capacity to do that.

MR TIPPETT: Just a suggestion.


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MR HUNYOR: We didn’t have the resources.

MR TIPPETT: In fact, the old Don Dale was at capacity, wasn’t it?

MR HUNYOR: I think it was, or above.

MR TIPPETT: Yes.

MR HUNYOR: Yes.

MR TIPPETT: And the new Don Dale, however inadequate it may have been by comparison to a new complex, brand new complex, at least it had room for education; correct?


MR TIPPETT: It had capacity for the young people?

MR HUNYOR: It was very, very big. It had a lot of room.

MR TIPPETT: And it allowed the – a range of activities that simply weren’t available at the old Don Dale to be carried out by young people?

MR HUNYOR: That was what Commissioner Middlebrook told us and I – I had no reason to – to – to reject that view.

MR TIPPETT: And the reason why he took you through it, at least to your knowledge, was to allow you as a – as an organisation dealing with young children who came into – knocked off against the criminal justice system, to see the change in the facilities that were actually available now, as distinct to the old Don Dale?

MR HUNYOR: Yes. He was keen to impress on us the work that was being done to repurpose it. I can recall him saying, “It’s not ideal but it gives me a range of options to do things that I couldn’t do before, such as educational training.” We accepted that.

MR TIPPETT: Now, the – I want to move on to paragraph 50, please. I won’t be much longer.

MR McAVOY: Excuse me, Commissioners, leave hasn’t been granted with respect to paragraph 50. Mr Tippett has leave with respect to paragraphs 44 and 45. I’m sorry, I’ve just seen the second page. Sorry.

MR TIPPETT: Now, going to 51. That’s the conference you spoke about in your evidence organised by NAAJA?

MR HUNYOR: Yes.


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MR TIPPETT: That was a conference held here in Darwin?

MR HUNYOR: Yes.

MR TIPPETT: Was that – where was that conference held?

MR HUNYOR: I can’t remember what the name of the hotel was. Near the airport but, it was - - -

COMMISSIONER WHITE: Does it matter, Mr Tippet?

MR TIPPETT: No, it doesn’t.

COMMISSIONER WHITE: Not at half past 4, anyway.

MR TIPPETT: I agree, but let me get through it. I’ve been pretty quick today. In paragraph 51 you refer to the conference, arranged by NAAJA and in paragraph 52 to the fact that a child was called to speak at the conference.

MR HUNYOR: Yes.

MR TIPPETT: Now, did NAAJA call the child to speak?

MR HUNYOR: I don’t – I wasn’t involved in organising it, and I – I – but I don’t – no, actually I couldn’t say. I wasn’t involved in it .....

MR TIPPETT: But you were aware that the child was called by NAAJA or a representative of NAAJA at the conference?

MR HUNYOR: Or representative – there were other people organising the conference. I think NTCOSS, and I don’t know if there was another agency that has been involved in organising it. I recall they were looking for the Red Cross, and they were looking for a young person to speak.

MR TIPPETT: Was Mr Jared Sharp involved in that?

MR HUNYOR: I expect he was involved, yes.

MR TIPPETT: And did Mr Jarrett Sharp select the person to be called?

MR HUNYOR: To the best of my knowledge he did not.

MR TIPPETT: Did not. Who was – who selected the person?


MR TIPPETT: Now, this child – he was still a child at the time, wasn’t he?


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MR HUNYOR: I think that’s right. I think he was about 15.

MR TIPPETT: Little child – he was – let me just get this right, this child is brought before a conference of people to talk about his experiences in youth detention; is that right?

MR HUNYOR: I think he was asked if he would speak to the conference.

MR TIPPETT: Right. And how many people were at the conference?

MR HUNYOR: There might have been 100 or 150. It was – I would be guessing.

MR TIPPETT: Now, you say that the person was brought before the conference to speak about youth detention?

MR HUNYOR: Yes.

MR TIPPETT: That person’s – young person’s experiences. How was that young person chosen to speak about the experiences?


COMMISSIONER WHITE: His answer is, Mr Tippett, earlier that he didn’t choose him.

MR TIPPETT: Yes. Alright. I understand.

COMMISSIONER WHITE: Doesn’t know who chose him.

MR TIPPETT: Well, how .....

MR HUNYOR: How or who. I mean, it was a – it was a conference about youth justice. The most I can remember, and this is from discussions after the event rather than before it, because I wasn’t involved in organising it, is that the organisers of the conference were keen to have a young person speak at the conference about how young people are deleted treated in detention. That was as much as I knew.

MR TIPPETT: Alright. And it was – and Mr Middlebrook was invited to the conference by NAAJA?

MR HUNYOR: I don’t know who invited him but NAAJA was one of the organisations involved .....

MR TIPPETT: I suggest to you that after the conference the relationship between NAAJA and Mr Middlebrook fell away.


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MR HUNYOR: That was one of the critical events. I’m trying to recall the other – there’s another I mentioned in my statement, Jared Sharp raising the meeting in which the Commissioner had attacked him. I can’t recall if that was before or after but it was – it was certainly the conference was a critical event in the relationship breaking down, certainly between the Commissioner and Mr Sharp.

MR TIPPETT: Because you were aware that Mr Commissioner took the view that effectively it was a NAAJA set-up.

MR HUNYOR: It was a set-up.

MR TIPPETT: Yes.

MR HUNYOR: That’s right, that was his view.

MR TIPPETT: And that he had gone there with goodwill as he had approached things with NAAJA up to that point; correct?

MR HUNYOR: Yes.

MR TIPPETT: And that with goodwill he was required to sit there and listen to a child talk about matters that had not been raised on the agenda as possibly being raised before the conference; is that right?

MR HUNYOR: I’m aware that was his view.

MR TIPPETT: Well – and later did he not ask or make inquiries as to whether anybody had referred these matters to the police?

MR HUNYOR: He asked that at the meeting. Either he or the attorney raised it.

MR TIPPETT: And did he not suggest that if anyone had been aware of what this child might be saying before the conference, that they would have an obligation to report it to police?

MR HUNYOR: I think that was raised at that meeting .....

MR TIPPETT: And Mr Middlebrook was both outraged and surprised that neither of those things had taken place, namely that the matter had been reported to police, secondly that there had been a proper – and reported to authorities generally?

MR HUNYOR: That was something that was raised with us, yes.

MR TIPPETT: And Mr Middlebrook was outraged that that had not taken place, was he not?


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MR HUNYOR: No. I think he was outraged that he thought NAAJA had set to – sought out to embarrass him. I didn’t feel that there was any anger about the potential – the possibility that those matters hadn’t been raised with police.

MR TIPPETT: Well, it was Middlebrook who raised with the, in the meeting with the Attorney-General, the fact that these matters ought to have been raised immediately with police as soon as they became known, secondly that he wanted to know why he didn’t do it.

MR HUNYOR: It was either him or the Attorney that raised it with us, but I didn’t think that was the source of their anger. I thought that was a separate point that was being raised.

MR TIPPETT: I have no further questions.

COMMISSIONER WHITE: Thanks, Mr Tippet.

MR McAVOY: Commissioner, some inquiries have been made with Mr Lawrence. He presses his application on the basis that there are some matters not covered by myself, and I’m presuming if he’s still pressing the application for leave that – not covered by my learned friend Mr Tippet.

COMMISSIONER WHITE: But what are they? What is the interest, Mr McAvoy, that has been conveyed to you?

MR McAVOY: The - - -

COMMISSIONER WHITE: I’m sure there are many things that haven’t been covered, but are they relevant to Mr Lawrence’s client’s interest?

MR McAVOY: I understand that the questions are in relation to the – particularly to the behavioural management unit and Mr Lawrence’s position is that his client that he represents was in there at the time that the inspection was carried out, and that’s the extent of the cross-examination. If it’s confined to that, and it doesn’t cover ground already travelled, Commissioner, I would be willing to consent to Mr Lawrence’s application.

COMMISSIONER WHITE: Thank you, Mr Lawrence. You know it’s a very, very narrow pass.

MR LAWRENCE: Yes.

COMMISSIONER WHITE: And brambles on side, like Commissioner Gooda and me.

MR LAWRENCE: I know. It’s the unpopularity contest of the day. I’ve won, I think, but I will try and be brief. But - - -


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MS DWYER: Your Honour, I just make the point that we haven’t – I haven’t – I’m not aware of anything that Mr Lawrence is going to ask.

COMMISSIONER WHITE: No, I don’t think anyone is, but we’re hoping to keep him to the BMU and what was observed and seen, that’s all.

MS DWYER: May it please the Commission.

MR LAWRENCE: Alright.

COMMISSIONER WHITE: Your client, I understand at the time, was in the BMU when this visit took place.

MR LAWRENCE: That’s right, on 11 May – sorry, August.

COMMISSIONER WHITE: Yes. There’s the interest.

MR LAWRENCE: I’m going to get shot down here, because I do actually want to go to a general systemic line area, and if your Honour would – if the Commissioners would recall, similar to the lines that I questioned Mr Goldflam on in relation to the relationship with the Department of Correctional Services.

COMMISSIONER WHITE: That’s not – not the basis upon which your leave has been granted.

MR McAVOY: And I would object to that line. We haven’t been given notice about it.

COMMISSIONER WHITE: Doesn’t matter about the notice. It’s just not going to happen. Sorry, Mr Lawrence. You can ask about the BMU, and Mr Hunyor. MR LAWRENCE: Alright. I will ask about the BMU. You were invited by the Department of Correctional Services to go out to Don Dale and have a meeting.

MR HUNYOR: Yes.

MR LAWRENCE: And that was on 11 August.

MR HUNYOR: Yes.

MR LAWRENCE: And the meeting was held at Don Dale.

MR HUNYOR: Yes.

MR LAWRENCE: Was it held in the office area, or something like that?


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MR HUNYOR: No. I think it was a room that might have been used as a library or activities room. It was a larger room we used as a meeting room.

MR LAWRENCE: And Mr Middlebrook was there, yourself was there, Jared Sharp was there, the superintendent, is it Mr Hansen?

MR HUNYOR: I think Mr Caldwell.

MR LAWRENCE: Caldwell, thank you, he was there and maybe some others.


MR LAWRENCE: And was the meeting about actually a proposal to move to - - -

MR McAVOY: Object.


MR McAVOY: This ground has been travelled twice.

COMMISSIONER WHITE: It has, Mr Lawrence.

MR LAWRENCE: Alright. I will – okay.

COMMISSIONER WHITE: It’s in very recent memory.

MR LAWRENCE: Right.

COMMISSIONER WHITE: I am sure you can ask some pretty tough questions about the BMU.

MR LAWRENCE: Alright. Well, let’s go to the BMU. You seemed to think that you were witnessing it on the way through from X to Y - - -

MR HUNYOR: Yes.

MR LAWRENCE: - - - rather than actually being taken there.

MR HUNYOR: Yes.

MR LAWRENCE: I gather from Mr Tippet’s line of questioning he seemed to be suggesting you were shown it by Mr Middlebrook to explain the inadequacies.

MR HUNYOR: I don’t think Mr Middlebrook was on the tour with us.

MR LAWRENCE: Right.


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MR HUNYOR: I don’t recall him being there.

MR LAWRENCE: Okay. Anyway, you find yourself in there and you’re shocked.

MR HUNYOR: Yes.

MR LAWRENCE: By what you saw.

MR HUNYOR: Yes.

MR LAWRENCE: And what you smelt.

MR HUNYOR: Yes.

MR LAWRENCE: And what you saw was I think five cells in there, dank, dark, and would it be fair to say that to your astonishment you found that behind the bars of the cells there was young children.


MR LAWRENCE: And you would have assumed that some of those kids were your clients?


MR LAWRENCE: And I represent AD, by the way, who’s an Aboriginal kid.

MR HUNYOR: Yes.

MR LAWRENCE: After that observation, you left and you discussed it with Mr Sharp back at the office?

MR HUNYOR: Yes.

MR LAWRENCE: And did you consider that what you saw there was unlawful detention?

MR HUNYOR: No. I didn’t know enough about the circumstances of it, and that was part of the reason for the inquiries were made.

MR LAWRENCE: Alright. Did you consider that it appeared to be in breach of international conventions?

MR HUNYOR: Yes, I did.

MR LAWRENCE: You – did you make any inquiries later that day or the next day to find out who those kids were?


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MR HUNYOR: Yes, Jared Sharp, that was – what was agreed was that Jared was going to make contact with the kids through care to find out who they were and really focusing immediately on welfare was our first concern, so wanted to make sure they had people they could talk to, that they had access to family, that they were okay. So he was taking care of the immediate welfare needs and I was drafting up the letter to the Commissioner to ask for an explanation and to try to put some pressure on for the situation to change.

MR LAWRENCE: Did you determine that you were representing some of those children?

MR HUNYOR: Yes, we did.

MR LAWRENCE: And the action that you took was to write an email to Mr Middlebrook.

MR HUNYOR: That was the action that I took at that stage, but Mr Sharp and through care saw those – saw the kids and took a range of other actions, but I wasn’t involved in that.

MR LAWRENCE: Alright, but confirmed that you were representing them.

MR HUNYOR: At least some of them, yes.

MR LAWRENCE: And you followed through your email because you didn’t get a prompt response?


MR McAVOY: I object, Commissioner. We’re straying away from what I understood the grant of leave was for.

COMMISSIONER WHITE: It’s still touching the BMU, because that’s what the letter was about, so I think it’s sufficiently there. But we’re – obviously we’re watching carefully.

MR McAVOY: Very well.

COMMISSIONER WHITE: But this ground has been traversed quite a bit by Mr Tippett as well as senior counsel, Mr Lawrence. We’ve looked at the email.

MR LAWRENCE: I’m just about there.

COMMISSIONER WHITE: Okay.

MR LAWRENCE: He did respond with a letter eventually on 14 August?


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MR HUNYOR: Yes.

MR LAWRENCE: Which is tendered in evidence?

MR HUNYOR: Yes.

MR LAWRENCE: And on page 2 of that letter, the penultimate paragraph, in answer to your question, how long is it expected that young people will be kept in the BMU, he tells you:

The young people will remain in the BMU until such time as alternative appropriate accommodation is identified.

MR HUNYOR: Yes.

MR LAWRENCE:

As noted above, we are working to find all alternative solutions that will meet these accommodation needs as soon as possible.

Right. So that could have been indefinitely.


MR LAWRENCE: Right. Now, this is my question: did you consider taking any legal action to extract your clients from that dungeon that you witnessed them in on 11 May?

MR HUNYOR: That was the – that was the next obvious step once we got – we identified who they were, that they were our clients, they wanted us to assist them, find out what they were in there for. So that was something that we were looking at. But, of course, the riot happened some days – or the – sorry. The – I say riot because that was the term that was used at the time, but it obviously was not a riot, but events overtook.

MR LAWRENCE: Well, it happened 10 days later.

MR HUNYOR: Yes.

MR LAWRENCE: Did you consider taking out a writ of habeas corpus to get the Director of Correctional Services before a court to justify to a judge the lawfulness of the detention which you witnessed on 11 August that these children were suffering under?

MR HUNYOR: I don’t think we did.

MR LAWRENCE: That’s all. Thanks very much.


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MR McAVOY: I understand Ms Dwyer has some questions.

COMMISSIONER WHITE: Yes. Thanks, Ms Dwyer.


Just as a matter of practicality, I’ve got some questions for each of the witnesses and if I just take each of the witnesses to the particular questions, starting with Ms Lachsz. In your statement you refer to a number of annexures. You were taken specifically to annexure A, which is the email that was received, or that was addressed to you from Ms Coon dated 19 June 2015 following on from the CLE. Can I take you to annexure D so that you can explain to the Commission what that is. It’s – if I could have that on the screen. It’s a document which starts with:

Girl session –

and is some - - -

MS LACHSZ: I might just very quickly jump in here because I know that there are names of some staff.

MS DWYER: Thank you for that. I will – just on that one page I’m just going to ask you to first identify the document, and I will avoid using the names of any staff members mentioned.

MS LACHSZ: So in - - -

COMMISSIONER WHITE: They might be written down so you might quickly need it taken down.

MS DWYER: Just on that particular page I can’t see any.

MR McAVOY: If I might for a moment, Commissioner, I understand that the relevant names have been redacted but - - -

COMMISSIONER WHITE: Alright.

MS DWYER: I’m grateful to my learned friend. I can in fact see on my copy redactions on the other pages. Thank you.

MR ..........: There is, obviously, Commissioner, at the top of that page, reference to a teacher by first name.



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MR ..........: I don’t know the circumstances of the number of teachers etcetera who could be in play with that name. But perhaps it could be taken down.

COMMISSIONER WHITE: It may not be an adverse comment.

MR McAVOY: Indeed, it’s not – it’s clearly not an adverse comment, and it’s not said to be by Counsel Assisting to be an adverse comment.

MR ..........: I’m grateful for that indication.

COMMISSIONER WHITE: Thank you. Just a name. Thank you.

MS DWYER: Ms Lachsz, could you just indicate to the Commission what that document is.

MS LACHSZ: So once I received an email from the principal of Tivendale School, I relayed it to my manager Jared and the next step was to organise a meeting with the principal to see this particular situation could be addressed and we could continue to deliver our sessions. And Jared asked that we put together some notes about what was discussed in all of the sessions.

MS DWYER: So that document is not dated, I don’t think, unless I’ve missed it. Just to the best of your memory, how soon after the CLE session was that document prepared?

MS LACHSZ: The very next day. I remember I was – Andrea Jones – I was in the middle of doing interviews, so she drafted the first version and then sent it through to others who went.

MS DWYER: Okay. If you could just turn – if the witness could be shown page 2 of that ultimate do, scroll down to the bottom, the bullet point that begins:

Andrea, Joe and I were disturbed by the way the teacher –

and you will see the name is redacted there:

… was interacting with both us and the kids. His behaviour included –

and there’s a number of comments in relation to that:

… talking over us, interrupting us, answering the questions we were asking the kids instead of letting the kids speak.

That’s consistent with the evidence you’ve given today.

MS LACHSZ: Yes.


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MS DWYER: You also referred to imitated tasering one of the kids in the neck by reaching out with his arm and motioning the taser on one of the boys’ neck. In what context was that done?

MS LACHSZ: I can’t recall exactly why we were discussing tasering. It might have been – I genuinely can’t recall talking about police powers, but as a joke that particular staff member reached out and thought it was appropriate to make a joke and pretend to taser a child in the back of his neck.

MS DWYER: You refer to it as a joke. What gave you the impression – I withdraw that. Did it give you the impression that the staff member intended it as a joke?

MS LACHSZ: I suspect so, but from my point of view that’s irrelevant. I think whenever you have that inherent power and balance between someone who’s detained and staff working at a detention centre and when you add the layers of it’s a young person, an indigenous person, not knowing what their history is, in terms of perhaps this has happened to them, the staff member should have known this was entirely inexcusable.

MS DWYER: And did the staff member actually touch the child when they were motioning that?

MS LACHSZ: I think so.

MS DWYER: Over the page, if the witness could be taken over the page, there’s a bullet point beginning:

Belittling the kids, saying things like, “Boo hoo, you guys are whingers.” When Andrea said to the kids, “We need to make sure we are clear about what’s a joke and what isn’t a joke”, the teacher said, “Everything that’s coming out of your mouth are lies. Tell them about when we lick all the sprinkles off your biscuits and then give you the soggy Saos to eat.”

Do you remember that being said?

MS LACHSZ: Yes.

MS DWYER: When you said, “Let’s be clear about what’s a joke and what isn’t a joke”, why were you saying that in that session?

MS LACHSZ: From my perspective it’s not my job and it’s not any staff working at Corrections or the school to determine what is and isn’t true. That’s why you have avenues such as making complaints, or the Children’s Commissioner or other civil litigation, but the – that was a particularly, in some ways, chaotic session because all of the kids were chiming in and raising their experiences, some of them quite disturbing. And I was just trying to figure out at what point the children were making a joke and when they were making allegations.


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MS DWYER: Was it also chaotic because of the interference from staff?

MS LACHSZ: Yes. We couldn’t deliver the session properly.

MS DWYER: Okay. And one of your bullet points there, the third bullet point, is:

Blaming kids: when boys were asked to talk about all the changes since the riots or breakouts, the teacher asked, “Who is to blame for the changes?” The kids replied, “Management,” and the teacher responded, “No, you are.”

What was the tone of that response from the teacher?

MS LACHSZ: It was just really the shutting down the conversation. It was accusatory. What the children were saying in that session reflected what the girl said earlier that this – if a few children behave inappropriately, everyone is punished.

MS DWYER: And the third and final bullet point I wanted to ask you about was the next one:

Repeatedly saying the kids were lying.

Without mentioning any names, who was repeatedly saying the kids were lying?

MS LACHSZ: Tivendale staff.

MS DWYER: What did that do in terms of your ability to run the session, if anything?

MS LACHSZ: I thought that it was not constructive, it was obstructionist, it’s not their place to say when the children are or are not lying. And they – it would be impossible for them to know if the children are lying. It made – created an atmosphere that just wasn’t conducive to having a genuine conversation about what sort of treatment should be expected while in detention.

MS DWYER: In spite of the way that session went, it was your intention at that stage to try and deliver another session with Tivendale staff, is that right, before – prior to getting the email from Ms Coon?

MS LACHSZ: Absolutely.

MS DWYER: And to that extent you asked a particular staff member if they would come along to the next session; is that right?

MS LACHSZ: Yes. One of the NAAJA – another NAAJA staff member.


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MS DWYER: I see. Could you just turn briefly – could the witness be shown Annexure F briefly. This is an email from yourself to Mr Sharp once you found out about the email from Ms Kern. You note there:

Joe, Alex and I were shocked by Lisa’s email.

Do you see that?

MS LACHSZ: Yes.

MS DWYER:

We were not at all anticipating this reaction. In fact, I asked Katie Bates if she could come across to the next session we do at Don Dale.

Was Katie Bates a NAAJA employee?

MS LACHSZ: Yes. So Katie Bates was a civil lawyer. Alex and I are in the CLE team and Joe was a civil lawyer at NAAJA. She attended that on the day before the sessions that we ran.

MS DWYER: Your evidence is that prior to that time you had been attempting to work with Ms Coon; correct?

MS LACHSZ: Yes.

MS DWYER: But you note in that email another incident where Ms Coon said something inappropriate. Do you see that?

MS LACHSZ: Yes.

MS DWYER: Could you explain the context of that particular interaction that you had with Ms Coon?

MS LACHSZ: So on that particular occasion – when we go into deliver sessions at Don Dale, we ask for permission to bring in certain, sort of, props or materials, and we have also in the past brought chocolates in for the kids because they usually engage really well and I just forgot to give the chocolates to one group and I didn’t want to give it to another group, and I was just having casual conversation with Ms Coon about that and I was quite surprised by her response, not only in terms of the chocolates, but that punitive approach of not providing the school programme over the holidays because in her view the children had been misbehaving.

MS DWYER: What you record in that email is that when you explained that you forgot to give out the chocolates to the high security kids and you didn’t want to be unfair, Ms Coon said she is:


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… glad you didn’t give the high security kids the chocolates, because they don’t deserve it in light of their behaviour. In fact, that’s why she didn’t provide the school programme over the holidays.

And that concerned you; correct?

MS LACHSZ: Yes.

MS DWYER: Because it was punitive, rather than rehabilitative.

MS LACHSZ: Absolutely and there’s not that much to do at Don Dale, so refusing to provide them education is hardly constructive and absolutely not rehabilitative.

MS DWYER: Do you have a memory now as to whether or not Ms Coon was at the CLE session on the rights and responsibilities that you’ve told the Commissioners about?

MS LACHSZ: To my memory, Lisa Coon has never sat in on a single one of our sessions. She has come in and out before. There has always been staff from both the Department of Correctional Services and Tivendale, but I don’t think she has ever sat in on an entire session. MS DWYER: Ms Lachsz, you – just to finish off on you, you’re currently on leave from NAAJA; correct?

MS LACHSZ: Yes.

MS DWYER: That’s study leave?

MS LACHSZ: Yes. I’m doing my masters at the University of Melbourne this year.

MS DWYER: What’s your masters on?

MS LACHSZ: Law. I’m focussing on human rights law and international humanitarian law.

MS DWYER: And your job has been kept open at NAAJA so you can return after your period of study; correct?

MS LACHSZ: Yes.

MS DWYER: Okay. Mr Byrnes, could I turn to you now.

MR BYRNES: Yes.


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MS DWYER: You provided your statement to the Commission on the – or it’s dated 10 September 2016; correct?

MR BYRNES: Yes. I believe so.

MS DWYER: You’ve got that in front of you?

MR BYRNES: Yes.

MS DWYER: At that stage you were working at NAAJA?

MR BYRNES: Yes. I was.

MS DWYER: And you attach, in fact, a curriculum vitae which sets out your history of work, including working with children; correct?

MR BYRNES: Yes.

MS DWYER: And due to personal circumstances you’ve had to leave the Northern Territory and work in New South Wales for the time being; is that right?

MR BYRNES: Yes. That’s right.

MS DWYER: Where are you currently working?

MR BYRNES: Beginning a job on Thursday with an organisation called Synapse as an advocate for people with brain damage.

MS DWYER: So you were asked a question earlier by my learned friend, counsel – Senior Counsel Assisting, as to whether or not to your – to the best of your knowledge the second group of guards, that is the group that is callous towards children, I’m paraphrasing, is still working at NAAJA – I beg your pardon – is still working at Don Dale.

MR BYRNES: Yes.

MS DWYER: When did you finish working up at NAAJA were you were visiting Don Dale?

MR BYRNES: I believe – I believe it was around about the 10th – 11 December, because with my cooking programme I put on, that was the last Sunday I was going to be in the Territory and I put on a Christmas lunch for the kids. So it was around about then, but I don’t precisely remember.

MS DWYER: So in giving that response to learned Senior Counsel Assisting as to whether or not that second group of guards is still working at Don Dale, was it – did you mean to say up until the time when you were still working at NAAJA.


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MR BYRNES: That’s the only time that I have intimate knowledge of the guards at Don Dale.

MS DWYER: Okay. Have you delivered that cooking programme at all since December last year?

MR BYRNES: Yes. I went up last Sunday and did the cooking programme.

MS DWYER: And how was it received then?

MR BYRNES: It was received well but I still see hints of resentment towards the young people from the guards.

MS DWYER: Can you give an example of that?

MR BYRNES: Yes. Yes. When I walked into the kitchen, I mean, one of the things that I tried to get the young people to emulate was a high standard of pride in their work, and we walked into the kitchen and the first thing I saw was a full – it was really garbage bins full and overflowing onto the floor, so all the garbage is spilling out onto the floor, and I said to the guard, “Why is this here like this? I mean, this is dreadful.” And she said, “That’s because the kids left it that way.” And I said, “Isn’t it because the people who supervised the kids allowed them to leave it that way?” And she sort of rolled her eyes and reluctantly, you know, got rid of the garbage. You know, I still see just a – a prickliness, a resentment towards, you know, the young people. I suppose what I’m trying to say is the opposite to – a lack of genuine understanding of the young people and how .....

MR ..........: Commissioners, can I indicate if my friend is inclined to further explore this line of questioning obviously - - -

MS DWYER: That was my last question.

MR ..........: Then I will sit down.

MS DWYER: That’s my last question in that regard. I’m coming to the – something else you said about the cooking class earlier to the Commissioners, that one feature of the cooking class is that you asked the kids themselves what they wanted to cook.

MR BYRNES: Yes.

MS DWYER: To what extent – I withdraw that. And your evidence is that the kids engaged really well in that cooking class.

MR BYRNES: Yes.


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MS DWYER: And I take you it you went out there last Sunday because you still feel attached to that cooking class and its success?

MR BYRNES: Very much so. Yes.

MS DWYER: And to what extent do you think that aspect of control that the kids were able to help choose what was going to be cooked is important?

MR BYRNES: I think it made all the difference to them, because they felt genuinely involved and they felt as though it was a programme that they – you know, they can embrace and have some control over. So, yes, I think it was a – a fundamental element to a success.

MS DWYER: Can you take it from me that the Commissioners have heard evidence that some of the – or that one guard, at least, was using swear words to the children that included, “What are you doing in there, you little gay dog?” and, “Who wants to suck my dick?”

MR BYRNES: Yes.

MS DWYER: You’re aware that if the children themselves used swear words that could be a conduct issue they could be punished for?

MR BYRNES: I don’t believe there would be any chance that they wouldn’t be punished for saying something like that.

MS DWYER: Given your experience, what can you say about the impact of one set of rules for the guards and one set of rules for the kids?

MR BYRNES: It only reinforces that those young people essentially are not very important people. And that’s the thing that is so deleterious to young people in this position, to take away, you know, their sense of worth and to say that they are just really at the bottom of the heap. And that’s how so many of them feel. They feel worthless and they feel discarded by the society. And that is an absolutely – a very, very bad message to deliver the young people, because it’s alright for one group of people to do something, but if they do it they’ll be in trouble. And I don’t believe they will not be in trouble for saying anything like that.

MS DWYER: On another topic, Commissioner Gooda asked you a question about the resources that were allocated to diversion, and at what point in time you believe the resources should be allocated. Are you able to tell the Commissioners generally what your experience of resourcing for diversion was?

MR BYRNES: Well, it was so badly under-resourced that the police officer who was in charge of diversion, who was completely for it and wanted it to work, but nonetheless said that they had a waiting list sometimes of 45 young people. And so the diversions – as I said, it’s a long a complicated process so if there’s 45 in wait,


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and then you’ve got to go through the processes, I imagine they couldn’t have more than half a dozen clients, I would guess, at any time. You could see how long it’s going to take for the kids who’s number 46 on the list to get – to get any help from diversion.

MS DWYER: And in terms of your work at NAAJA as an Indigenous – I withdraw that. In – as a youth worker with the kids, assisting them with diversion, were you able to have the resources to assist the kids going through diversion?

MR BYRNES: I could sometimes, but it was more like they would ask me to do a specialty job like a young person – you know, turned up, went to the first meeting, said it wasn’t for them and bailed. And they would get me to go around and talk the young person into it, come back, maybe shepherd them through the first meeting and then that was as far as I would take it. So it was more to address a special problem for the young person as opposed to seeing them through the whole diversion process.

MS DWYER: And were you able to do that? That is, when you were asked to be involved was that generally successful?

MR BYRNES: Often. Sometimes, of course, you know, they – the young person wouldn’t listen to me, but yes. Often yes.

MS DWYER: What can you tell the Commissioners about the resources for diversion in the communities beyond Darwin, particularly more remote communities.

MR BYRNES: I can’t enunciate about specific communities, but I know it’s very, very spare. There is almost none. It’s a real problem when a young person is offered diversion but is going back to community. There is not anywhere near the resources that we need.

MS DWYER: And in terms of, you’ve asked – Commissioner White asked you about a wish list and you were able to give some examples of things that you would like to change for kids. Would one of those be to increase the resources available to NAAJA to assist in diversion programmes?

MR BYRNES: Yes. When I was doing this role, and I think it’s still the case, there was just really me and there’s enough work for three people at least. So yes.

MS DWYER: Is it the case that you felt a particular level of support from certain magistrates when you were appearing to assist them in the youth diversion court – I withdraw that – in the Youth Court?

MR BYRNES: Yes. They – the magistrates very much wanted to see the young person’s life turn around and change. That was supposed to be the focus of the entire Youth Court, whether it’s the police, or prosecutions, or me in my role, was to help the young person change their lives – turn their lives around and get on another path


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and so the magistrate was very willing to listen to supportive constructive plans for young people.

MS DWYER: In fact, in terms of ensuring that securing of funding for your position did one or more of the magistrates write a letter in support of that?

MR BYRNES: Yes. One of the magistrates wrote a letter in support of my position saying she thought it cut through a lot of difficulties, family problems, people who often have a natural aversion to speaking to people in authority, to cut through that and go to the quick of the problem.

MS DWYER: Who was that magistrate?

MR BYRNES: That was Magistrate Morris.

MS DWYER: Final topic, Mr Byrnes, you heard questions being asked of Mr Hunyor in relation to a youth justice conference in particular where a young person spoke out about the bird faeces incident.

MR BYRNES: Yes.

MS DWYER: Are you aware that there were organisations other than NAAJA who were involved in organising that conference.

MR BYRNES: I don’t believe – I wasn’t part of the organisation, but I don’t believe NAAJA had anything to do with the organisation. My understanding is that the NT Council of Social Services was the prime organiser, possibly in tandem with Red Cross.

MS DWYER: Are you able to tell the Commission whose idea it was that a person speak at that?

MR BYRNES: Yes. Samantha Bowden from NTCOSS approached. She said, “Wouldn’t it be good, if we’re having a conference about young people, if we don’t only have old people at the conference?” Said, “Wouldn’t it be good if a young person spoke?” And I said, “Yes, I think that would be fabulous.” And she asked me if I knew anybody who could speak, and I said I knew somebody who I thought would be good, and I approached the young person and asked him if he could do it.

MS DWYER: And he agreed to do it?

MR BYRNES: He agreed to do it, yes.

MS DWYER: It wasn’t NAAJA’s idea that that young person speak at the - - -?---No, no. They approached me and asked me if I – if I knew a young person who might be suitable, and I – I approached this young person and he agreed to do it and ..... young person spoke.


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MS DWYER: Can you tell the Commission roughly how many days before the conference was on that you were approached to do that, and if you don’t remember - - -

MR BYRNES: Four or five, something like that.

MS DWYER: Okay. Thank you, Mr Byrnes. Final series of questions for Mr Hunyor. Mr Hunyor, you were taken to annexure B of your statement, which is the letter that you sent to – I withdraw that. It’s the email that you sent to Mr Middlebrook. Do you have that there?

MR HUNYOR: Yes.

MS DWYER: In paragraph 2 of that email you note:

We were gravely concerned about the conditions that appear to exist in the BMU and the likely impact on the mental health of the young people being detained there.

Were you concerned for their mental health as a result of the conditions that you raised?

MR HUNYOR: Yes.

MS DWYER: In the response that you received from Mr Middlebrook, which is dated 14 August 2014, it appears as annexure D, was there anything in there – that letter that gave you comfort that he was going to appropriately address the concerns about the mental health of the kids?

MR HUNYOR: No, there wasn’t.

MS DWYER: Is it the case that after reading that letter, you got the impression that he was primarily concerned about the security risks that were raised by the children?

MR HUNYOR: I thought that was his primary concern. I thought he acknowledged that the circumstances were – were unsatisfactory, but that the primary response was to explain that he had really no other options because of the limitations of the infrastructure and that because these kids had broken out there was no other place that they could be securely held.

MS DWYER: You’re aware that Mr Middlebrook has provided a supplementary statement dated 3 March in which he suggests that it is unfortunate that you didn’t raise that incident with him again before going to the Police Commissioner.

MR HUNYOR: Yes.


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MS DWYER: I beg your pardon. I’m grateful to my learned friend. It’s 2 March. You’ve read that.

MR HUNYOR: I’ve seen part of it.

MS DWYER: You would have noted his comments that he’s disappointed or surprised that you didn’t phone or email him after receipt of that letter; correct?

MR HUNYOR: Yes.

MS DWYER: Why is it that you didn’t follow that up with Mr Middlebrook, and chose instead to go to the Children’s Commissioner?

MR HUNYOR: I didn’t think we were going to get any further. I thought the Commissioner’s views were clear, and he confirmed, I guess the different approach that we took to the Commissioner in that his response to our criticisms was to look at the infrastructure and the – what he described as the sort of nature of the cohort of dangerous – as I say, what he described as being dangerous high risk kids, whereas our response was that the problems were really significantly to do with the relationship of security issues, so the issues of how the kids were being treated, how they were being managed, what support and other services were available. That was where we thought much more could be done, and we wanted to see greater urgency in resulting in the immediate situation, rather than simply saying, “Well, there’s not much I can do.” So we didn’t think we could change it.

MS DWYER: So is part of your reason for going to the Children’s Commissioner at that stage an urgency perceived on your part in - - -

MR HUNYOR: That’s right. We thought that was the – going to be the best way to get a result for those kids.

MS DWYER: Mr Hunyor, you may also have read in that statement of 2 March Mr Middlebrook suggesting that, although NAAJA was critical of the plan to use Berrimah, NAAJA did not offer an alternative - - -

MR HUNYOR: Yes.

MS DWYER: - - - to that, what do you say in relation to that comment?

MR HUNYOR: We weren’t experts in prison infrastructure or large infrastructure projects. We were encouraging other options to be – as I say, like, retro fitting or refitting Don Dale, making improvements or changes to that. We weren’t really in a position to argue whether or not those things were going to be satisfactory. We wanted them to be properly considered, because we had concerns about using a decrepit adult prison for kids and again the ways that we did make positive suggestions were to be raising the issues of concern where we thought Corrections could be doing something.


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So around the way that relationships were managed, around things like the use of – the way kids were being punished, the lack of education, the lack of therapeutic services, the lack of individual care plans, so the flipside of all those things, or the positive, that – you know, to improve the situation these were the things you could address. So we did see ourselves as making constructive positive comments about how things could be improved, short of magicking up a new centre, which we knew wasn’t going to happen tomorrow.

MS DWYER: Final set of questions relates to the conference that we’ve heard about, the youth justice conference.

MR HUNYOR: Yes.

MS DWYER: In which a young person spoke about a particular incident about being made to eat faeces, you then describe a meeting which occurred when Mr Middlebrook was there, to your surprise, because that was supposed to be a meeting with the Attorney-General?


MS DWYER: You describe Mr Middlebrook being angry. What do you say to any suggestion that you personally set out or knew that Mr Middlebrook would be embarrassed or humiliate by that young person’s story?

MR HUNYOR: For me, personally, that would be astonishing. I had nothing to do with the organisation. I had absolutely no idea that those were the things that were going to be said. It would be a baseless suggestion.

MS DWYER: And what’s your response to a suggestion that Mr Sharp would have deliberately organised or facilitated a young person speaking to embarrass the police – to embarrass Mr Middlebrook?

MR HUNYOR: I have great trouble accepting that. I have a very high regard of Mr Sharp and his professionalism and I would need to – I would need to have wire taps before I believe that he would do otherwise.

MS DWYER: Mr Sharp’s job involved raising concerns and speaking out about children; is that right?

MR HUNYOR: Yes.

MS DWYER: And is that what you perceive led to the breakdown between him and Mr Middlebrook as opposed to any overriding personality issues?

MR HUNYOR: There may have been personality issues, but all I could see was a persistent and dogged pursuit of the interests of the kids that we were there to represent, and Aboriginal young people, and I thought Mr Sharp did that with great


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courage and persistence, and I’m sure that that frustrated people who he was constantly seen to be criticising, but I don’t think that he did it – I never saw him do it in a way that I thought was other than professional and appropriate.

MS DWYER: On that same topic when, in relation to the leisure letter that you sent to the Children’s Commissioner, after seeing the BMU.

MR HUNYOR: Yes.

MS DWYER: And following the response you got from Mr Middlebrook, did you raise those concerns with the Children’s Commission in any way that you felt was done to embarrass Mr Middlebrook?

MR HUNYOR: No. Absolutely not.

MS DWYER: And did you nevertheless attempt, after that period of time, to continue to have a dialogue and a respectful relationship with Mr Middlebrook?

MR HUNYOR: Yes. Yes. I can’t recall if we – if we met. I think we probably did. And things between the Commissioner and I were probably a little frosty, but we certainly maintained a professional relationship, I thought.

MS DWYER: Your Honour, would you permit me in that same vein to ask one question of Mr Byrnes that I neglected to ask. Mr Byrnes, you worked within Don Dale.

MR BYRNES: Yes.

MS DWYER: And that meant you came into contact with Don Dale staff at a regular basis.

MR BYRNES: Yes, regular.

MS DWYER: Did you also come into contact with Mr Middlebrook?

MR BYRNES: Very occasionally, yes.

MS DWYER: What was your attitude to developing positive relationships with staff within Don Dale to the best of your ability?

MR BYRNES: I couldn’t do my job if I – if I had poor relationships with Don Dale. I mean, I – to me it was absolutely paramount and I – I did everything I could to foster good relationships. I mean, there was a point where – you know, one would have to say, “At this point, even if it’s going to damage the relationship, it’s so important that I put my client first.” But overwhelmingly, I did everything I could to maintain a harmonious relationship with Don Dale, because it was – without it, I couldn’t help the young people and that was uppermost in my mind.


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MS DWYER: Nothing further. Thank you.

COMMISSIONER WHITE: Thank you, Ms Dwyer.

MR McAVOY: No re-examination, Commissioners.

COMMISSIONER WHITE: Thank you. Well, then needs us only to thank you very much, Mr Hunyor, Ms Lachsz, and Mr Byrnes for your great contribution to the work of the Commission this afternoon, and your statements, of course, of themselves are particularly helpful to us. Thank you very much.

MR BYRNES: Thank you.

COMMISSIONER WHITE: You’re released from your summonses now.

<THE WITNESSES WITHDREW [5.18 pm]

COMMISSIONER WHITE: Are we going to start at 9.30 tomorrow?

MR McAVOY: That’s the intention, Commissioner. Mr Kelleher, yes, and Mr – Mr Callaghan will be returning to the bar table at that point.

HER HONOUR: Thank you.

MR McAVOY: I have nothing further, this afternoon, Commissioner. I don’t understand there to be any applications.

COMMISSIONER WHITE: Right. I shouldn’t say it’s a quick escape then. Alright. Thanks, Mr McAvoy. Thank you. 9.30 tomorrow, then. Thank you.

MATTER ADJOURNED at 5.19 pm UNTIL TUESDAY, 21 MARCH 2017


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Index of Witness Events

CONAN LORD ZAMOLO, SWORN P-1393EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-1393CROSS-EXAMINATION BY MR LAWRENCE P-1416CROSS-EXAMINATION BY MS DWYER P-1434

THE WITNESS WITHDREW P-1451

CONAN LORD ZAMOLO, ON FORMER OATH P-1452CROSS-EXAMINATION BY MR O'BRIEN-HARTCHER P-1452RE-EXAMINATION BY MS JARDINE P-1464RE-EXAMINATION BY MR CALLAGHAN P-1468

THE WITNESS WITHDREW P-1469

JONATHON HUNYOR, AFFIRMED P-1470TERRY BYRNES, SWORN P-1470ANDREEA LACHSZ, AFFIRMED P-1470THE WITNESSES WITHDREW P-1534

Index of Exhibits and MFIs

EXHIBIT #97 STATEMENT OF CONAN LORD ZAMOLO DATED 16/3/2017

P-1393

EXHIBIT #98 TRANSCRIPT OF AN INTERVIEW BETWEEN THE CHILDREN’S COMMISSIONER AND MR ZAMOLO

P-1394

EXHIBIT #64.301A RECORD OF INTERVIEW BETWEEN MR ZAMOLO AND MS ENGELS

P-1394

EXHIBIT #64.196 IOMS OFFICER REPORT P-1394

EXHIBIT #64.197 IOMS OFFICER REPORT P-1394

EXHIBIT #99 VIDEO RECORDED BY MR ZAMOLO P-1405

EXHIBIT #100 VIDEO RECORDING OF TOILET INCIDENT P-1409

EXHIBIT #101 VIDEO RECORDING OF BED INCIDENT P-1409

EXHIBIT #103 STATEMENT OF JONATHON HUNYOR DATED 16/2/2017

P-1471

EXHIBIT #104 STATEMENT OF MR BYRNES DATED 10/9/2016 P-1471

EXHIBIT #105 STATEMENT OF MS LACHSZ DATED 20/9/2016 P-1472


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