Web view.ROYAL COMMISSION 9.12.16P-607AD ©Commonwealth of AustraliaTranscript in Confidence.ROYAL COMMISSION 9.12.16P-567 ©Commonwealth of AustraliaTranscript in

, I’ll put it into AGS

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TRANSCRIPT OF PROCEEDINGSTRANSCRIPT IN CONFIDENCE

O/N H-736398

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

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

DARWIN

10.02 AM, FRIDAY, 9 DECEMBER 2016

Continued from 8.12.16

DAY 8

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 G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMS T. LEE appears for AA, AB and ACMR A. HARRIS appears for Mr John ElferinkMR J. TIPPETT QC appears for Mr Ken MiddlebrookMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMR P. BOULTEN SC appears for the North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR J. LAWRENCE SC appears with MR S. O’CONNELL for AD

.ROYAL COMMISSION 9.12.16 P-563©Commonwealth of Australia Transcript in Confidence

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COMMISSIONER WHITE: Mr McAvoy.

MR McAVOY: May it please the Commission. Commissioners, you will be aware yesterday afternoon that at the close of proceedings there was some discussion about the way in which matters were to be conducted today for the evidence of the vulnerable witness, AD, and for the evidence of Mr – Dr Fitzpatrick and Dr Pestell. The proposed order for today’s evidence is that my learned junior, Mr Goodwin, will take those witnesses and I understand that an order has been made with respect to that evidence.

COMMISSIONER WHITE: The direction that was made this morning?

MR McAVOY: Yes, Commissioner.

COMMISSIONER WHITE: That’s true. That is a direction. There are two directions. One, I think, has just been made and it will be made in a moment and ventilated to those who are here. The other one is the more general one concerning vulnerable witnesses.

MR McAVOY: Yes, Commissioner.

COMMISSIONER WHITE: So, perhaps at the outset it would be as well if I read into the record the two directions that have been made.

MR McAVOY: I’m happy for that course to be undertaken, although I understand that the Solicitor has some submissions to make. I am not sure that they affect those directions as made, but they raise issues ancillary to those directions.

COMMISSIONER WHITE: Yes. Mr McAvoy, have in fact hard copies of those two directions been circulated to the legal representatives?

MR McAVOY: I understood that they have. Sorry, the first, but not the second, Commissioner.

COMMISSIONER WHITE: Well, I have to say that it has only come off the press, Ms Brownhill. We made a few amendments to it while we were waiting.

MR McAVOY: But certainly the Solicitor and I have had discussions about the content of the general direction, if I might call it that, and there are - - -

HIS HONOUR: This is number 5.

MR McAVOY: Yes.

COMMISSIONER WHITE: The other one hasn’t even got a number yet.

.ROYAL COMMISSION 9.12.16 P-564 ©Commonwealth of Australia Transcript in Confidence

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MR McAVOY: And there are some issues arising that the Solicitor wishes to ventilate and I’m happy to respond to those when you are ready to hear those matters, Commissioner.

COMMISSIONER WHITE: Yes. Thanks, Mr McAvoy. Before I then, in the interests of spreading the word, deal with those directions, perhaps Ms Brownhill, you would like to make your submissions if they’re on this topic generally anyway.

MS BROWNHILL: Thank you, Commissioner. The submissions I wish to make relate to the proposed manner of proceeding with the evidence of vulnerable witness AD.

COMMISSIONER WHITE: Yes, thank you.

MS BROWNHILL: They include some observations about the direction number 5, which I will come to in a moment. I hope that, Commissioners, you have a copy of the submissions of the Northern Territory as to taking evidence from vulnerable witness, AD.

COMMISSIONER WHITE: No.

MS BROWNHILL: Okay. Well, then it would greatly assist my submission, I’m sorry, Commissioners, if you could read that before I address you.

COMMISSIONER WHITE: Thank you. Would you care to hand those up.

MS BROWNHILL: Certainly.

MR McAVOY: I have been provided with a copy of those written submissions, Commissioner, but in the haste to deal with matters this morning, I’ve - - -

HIS HONOUR: Forgot to give them to us?

MR McAVOY: Forgot to hand them up.

COMMISSIONER WHITE: I’m sorry, Ms Brownhill. We might adjourn to read them, then we can discuss them more readily.

MS BROWNHILL: Absolutely, Commissioners.

COMMISSIONER WHITE: And have you been given a copy of the practice - - -

MS BROWNHILL: I’ve seen - - -

COMMISSIONER WHITE: The directive, the longer.

MS BROWNHILL: - - - practice direction number 5.


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COMMISSIONER WHITE: Yes. And then has the other one - - -

MS BROWNHILL: I haven’t seen the other one.

COMMISSIONER WHITE: And do you have those, Mr Goodwin?

MR GOODWIN: ..... copies, Commissioner, yes .....

COMMISSIONER WHITE: Would you kindly give those to – so you can have an opportunity – give two to ..... if you don’t mind.

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: Because, Mr O’Mahoney needs to have a look at them as well, and anyone else who has an interest, if you have enough copies. We will adjourn and look at these submissions.

MS BROWNHILL: Thank you, Commissioners. Just bear in mind, when reading this submission, that when you get to the end bit, I wrote them unaware of the content of direction 5. So I will address you on that when we come to it.

COMMISSIONER WHITE: Thank you. If you just adjourn for 10 minutes, if you would. Thanks.

ADJOURNED [10.52 am]

RESUMED [11.09 am]

COMMISSIONER WHITE: Thank you, Ms Brownhill. Commissioner Gooda and I have discussed your proposal. We have no difficulty with the position that you have asked us to take for the Northern Territory. So if you turn to paragraph 12.

MS BROWNHILL: Yes.

COMMISSIONER WHITE: The Commission accepts that it will not, by virtue of the Northern Territory’s failure to provide questions to Counsel Assisting as described in paragraph 2 of your submission – which perhaps we will tender and put on the record – you might - - -

MS BROWNHILL: I’m happy for that to happen.

COMMISSIONER WHITE: We will get that in a second.

MS BROWNHILL: Yes.


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COMMISSIONER WHITE: Consider the evidence of AD to be unchallenged and, on that basis alone, accept the accuracy of the allegations made by AD in his statement and oral evidence. And (b) it will not, in the absence of an indication to the Northern Territory of the findings it proposes to make in relation to the allegations made by AD and an opportunity to be heard, publish AD’s statement or transcript of his oral evidence or otherwise vary the non-publication. With this exception, and we have added (c), and this is for your consideration. By reference to paragraph 4 of practice direction 5 of 2016, the Commission will provide the Northern Territory with the summary of the statement and evidence of witness AD for its consideration and the timing of its publication.

MS BROWNHILL: I’m perfectly happy for that approach, Commissioner, with the understanding that we would then be able to be heard on the content of the summary.

COMMISSIONER WHITE: Correct, yes. That’s in – we think that is encompassed in “for its consideration.”


COMMISSIONER WHITE: I’ve just got a couple more comments to make about your statement.

MS BROWNHILL: Yes.

COMMISSIONER WHITE: Particularly with respect to paragraph 11, that is the reference to the Supreme Court proceedings. To the extent possible, we would certainly refrain from making any findings in advance of the Supreme Court handing down its decision. We don’t know when that would be, of course, and so that’s why it’s prefaced with “to the extent possible”. If it were to go on too long, I think it would upset our timetable, such as it is, too much. But that being said, we would certainly – we are very mindful of that and the undesirability of having conflicting findings, if indeed we descend to the detail of the – well, we won’t be descending to the detail of the findings of course of the Supreme Court, but we wouldn’t want to cut across it. So you understand that.

MS BROWNHILL: I do. Thank you, Commissioner.

COMMISSIONER WHITE: Good. And the other – which is raised in 6 and 7 and reflected, I think, also in the paragraphs at the end of your submissions, that consistently with the conduct in other Royal Commissions, if there are to be adverse findings of a particular kind then those draft findings would go to the Northern Territory before they became in – part of the report.

MS BROWNHILL: Yes, thank you. I appreciate that. In my discussions with learned Counsel Assisting Mr McAvoy, he had requested that we give an indication of when we could provide our responsive material, including the statements. We are


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prepared to give an indication that we will do that by 30 January, in relation to the evidence of AD.

COMMISSIONER WHITE: Thanks, Ms Brownhill.

MS BROWNHILL: Now, I also wanted to be heard, Commissioners, in relation to the capacity of the Northern Territory to be present whilst vulnerable witness AD is giving his evidence, and we would suggest that the same position flows in relation to the other vulnerable witnesses. The proposition from which my submission proceeds is that it is critical to enable the Northern Territory to assess the veracity of any particular witness’ evidence, to see the witness give that evidence as opposed to simply read it in the transcript. Now, while our preference would be to be present in the courtroom, but as we have indicated in our submission and the proposed rulings, we wouldn’t ask any questions.

That, we think, is a vital part of our capacity to make submissions about what findings the Commission might make, on the basis of the evidence, in the future. A potential alternative we consider which we could live with is for the evidence being given by the vulnerable witness to be live fed into a room somewhere in the court. For example, the media room, where we could sit and observe it as it plays out. The primary position being that reading evidence on a transcript is no substitute for being present and giving – seeing the witness give their evidence. So we would ask that either we not be excluded as proposed in direction 2, or that we give disability be given the opportunity to see the evidence via some sort of video connection as I have described.

And I understand – I’m not sure about what the position of AD or his legal representative is in terms of whether there’s some sort of therapeutic concerns about the presence of parties in the courtroom. But, obviously, that wouldn’t arise if the option of a video feed to another room is taken, and I also understand that a number of the other representatives have a similar concern to us and would also seek to be able to either be present in the room or observe the video. I don’t know precisely what their position is, but I understand there to be a position. The only thing I would say about that is that the Northern Territory is in somewhat of a unique position in relation to this kind of evidence that we say sets us apart from the other parties, and provides a greater justification for allowing Northern Territory to be present, or see the evidence in the way that I’ve described.

COMMISSIONER WHITE: Yes. Thanks Ms Brownhill. I should observe that there’s a great deal of research, published research from psychologists and the like, which suggests that lawyers have overemphasised the capacity to make judgments about witnesses from the look of them, and their behaviour, and that we would do far better to concentrate on how they say it rather than how they look. I don’t think we should enter into that debate but I’ve certainly done a lot of work in that field in the past and was somewhat astonished at it, but it does seem that we perhaps rely too much on what we think we can judge from people’s conduct. That having been said


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as a mere aside, Ms Brownhill, I note the submissions you make. Now, Mr McAvoy do you - - -

MR TIPPETT: ..... I be heard, Commissioners.

COMMISSIONER WHITE: Yes, Mr Tippett. You - - -

MR TIPPETT: I have – of course, have been away taking instructions on the statement that I was given last night with Mr Middlebrook. I’ve just simply left him. We just spent an hour and a half on it.

COMMISSIONER WHITE: Yes, Mr Tippett.

MR TIPPETT: And I formulated questions that I was going to type up and provide to Counsel Assisting, and he’s left with the understanding that I would be present, at least in some way, and I certainly wouldn’t oppose being present by a live video feed when this witness gives his evidence. I simply adopt the submissions made by the Northern Territory.


MR TIPPETT: I complain again about the manner in which this is coming to me and, through me, my client. Last night I left with the impression that I would be present during the giving of evidence, but out of sight of the vulnerable witness, and that I would be providing some questions in writing to Counsel Assisting upon instructions. Further, I was advised and I have advised my client that other witness statements of vulnerable witnesses, including Mr Voller’s would be made available to me, and I had arranged with my client to go through a statement this afternoon. He is flying out on Sunday night, and I had arranged to go through his statement, that is Mr Voller’s statement, with him on Saturday.

And he is typing out now a number of matters that he thinks is important, or are important to raise with Mr Voller, in anticipation of certain incidents being covered by Mr Voller in his statement. Now, that’s what I’ve told him. I was concerned yesterday that he was being denied procedural fairness. Even with the position, Commissioner, that you, Commissioner, have indicated will be put in place, in my submission that denial continues. Mr Voller’s statement apparently is not going to be provided to us. My client was involved with Mr Voller over many years. He was particularly involved with him, of course, on the night of the quote “gassing incident” end quote.

He was involved with him after that incident at Holtze and again back at the Berrimah Centre when the prisoners were removed from the Holtze Centre. His involvement has been extensive and he wants to raise a number of matters with Mr Voller, and they’re not matters that should stress Mr Voller to any degree, but are important to get his response in relation to them. Now, Commissioner, this is really


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unprecedented, in my submission: that a person in my client’s position, with his interests, is simply denied information.

With all of the statements that the Commission has made in relation to the care it will give to these things, nothing should transplant procedural fairness. No procedural fairness can be accorded in circumstances where my client is denied addressing a number of very significant matters that relate to his reputation, and his conduct over quite some time relating to juveniles in detention. Effectively, he is being shut out, and while there may be remedial positions put in place to attempt to address that position, those remedial positions simply don’t do so in the end. My client is left with the view that he is being, quote “railroaded” end quote. That his voice is not going to be heard, because he simply - - -

COMMISSIONER WHITE: Well, he is going to be giving evidence, isn’t he?

MR TIPPETT: He may. That’s not – Counsel Assisting has said they may. I mean, I don’t know what they have in mind. I really don’t. And my client is all at sea in relation to this. He has been personally affected by this in a whole range of ways, and I won’t go into detail.

COMMISSIONER WHITE: No, we can understand that.

MR TIPPETT: But - - -

COMMISSIONER WHITE: Mr Tippett, I’m sorry to interrupt your advocacy, but I think I’ve got the point, and because we have a number of witnesses that are scheduled for a particular time, perhaps I can hear from McAvoy in response. I understand the concerns that you’re expressing.

MR TIPPETT: Thank you.

COMMISSIONER WHITE: Thank you, Mr McAvoy. We are just dealing with Mr Tippett’s issue, thank you. I had understood that Mr Tippett’s client has – had been given Mr Dylan Voller’s statement, redacted appropriately.

MR McAVOY: I need to take instructions on that. That’s not a statement I’ve been dealing with in any – I’ve had any carriage of at this point.

HIS HONOUR: Well, he says he hasn’t got it, so I’m not going to say that’s not true because if he has got it, he would know that.

MR McAVOY: No. I’m not suggesting otherwise, but I simply can’t respond in relation to Voller right at this second. I expect I will be able to in a couple of minute’s time. My –those who are instructing me are making inquiries. Does the Commission want to hear from me with respect to the other issues in relation to - - -


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COMMISSIONER WHITE: You may as well do them all at the one time, I think, Mr McAvoy. But I just thought we needed to tidy up the practical thing about the statement first up before anything more. Alright. Perhaps we will just wait until you get that instruction.

MR O’BRIEN: Can I say very quickly on behalf of Mr Voller that there is no difficulty from our point of view for his – for Mr Middlebrook’s legal representative to have a copy of that statement. That was the understanding that we embarked upon the statement giving process, that not only Mr Middlebrook’s representative would get it but also, indeed, all the parties with standing would get it, and it has been redacted appropriately and .....

COMMISSIONER WHITE: Yes. Well, as I understand, Mr O’Brien, a lot of – a lot of the redaction and so on has been actually driven by instructions through your office - - -

MR O’BRIEN: Correct.

COMMISSIONER WHITE: - - - in respect of Mr Voller. It has not been at the initiative of the Commission so much as the direction from Mr Voller.

MR O’BRIEN: .....

COMMISSIONER WHITE: All right. Thank you. That’s why I’m surprised that he hasn’t received it.

MR McAVOY: I understand that my learned friend Mr Tippett’s position is correct. He hasn’t received it yet, but a direction has been made for the receipt of a redacted version of the statement, and it should be delivered as soon as possible. I can’t take it any further than that.

COMMISSIONER WHITE: What is “as soon as possible”? I mean, in real terms, he has got limited time to talk to his client.

MR McAVOY: No. I imagine it is being attended to now, Commissioner. I’m dealing with this on my feet. It’s not – it’s a matter which Mr Tippett could have raised with me before we came – before we rose, but – and I may have been able to deal with it but - - -

COMMISSIONER WHITE: Alright, thank you.

MR McAVOY: But I’m not able to at the moment.

COMMISSIONER WHITE: Mr Tippett, it seems that you will be provided with the statement.

MR TIPPETT: Thank you, Commissioner. I - - -


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COMMISSIONER WHITE: I don’t need you to express your complaints.

MR TIPPETT: Yes. I understand. Yes.

COMMISSIONER WHITE: I can understand what they are, and it doesn’t make it any better by ..... going on.

MR TIPPETT: No. I understand, Commissioner. I don’t propose to go on.

COMMISSIONER WHITE: Alright. Thank you. Now, Ms Lee, you have got a matter you want to raise.

MS LEE: I do, Commissioner, and I will try to be brief. Yesterday, Mr McAvoy foreshadowed an application that I was to make with respect to being able to observe the evidence of both AD and Mr Voller. Your Honours heard the information that Mr McAvoy put before the Commission and indicated that you didn’t require me to be heard on that application, given the position of Counsel Assisting. I understand that that position has now changed, and so I wish to formally make the application.

COMMISSIONER WHITE: Thank you.

MS LEE: That application is that I be given leave to observe the evidence of AD and Mr Voller.

COMMISSIONER WHITE: And that’s on the basis of?

MS LEE: On the basis that your Honour understands I represent three young people.

COMMISSIONER WHITE: Yes.

MS LEE: Those – all young people were given leave to appear in relation to reference (a) to (i). In my submission, the interests of those three young people are so closely connected to the evidence of AD and Mr Voller – now, I say that in one part as an assumption, because I have not seen any statements from either of those two young people, despite an understanding that counsel for both of them have no objection or difficulty with either my seeing those statements or my observing either of those people’s evidence. Your Honour, it does – the interest, I say, extends beyond the incident which occurred on 21 August.

Your Honours have received information about that incident, but there are surrounding circumstances and your Honours have heard – Commissioners have heard some information about that from periods between the 2 and 4 August through to the end of August, but there are other significant periods of time that these young people have spent in youth detention together. I’m assured by Counsel Assisting that nothing that has been provided in either the statement of AD or Mr Voller is adverse in any way to my clients. However, with respect, I would say that that consideration


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requires a consideration of more than what it is anticipated that my clients would say about 21 August.

The – and specifically would be relevant to the, I suppose paragraph (d), (f) and (i) of the Commission’s terms of reference. Now, in addition to that, the young people that I represent have not made a final determination as to what extent they wish to be involved in this Commission. They have a significant interest, however given other proceedings they have been involved in, I suppose it would be fair to say that they are – they have some concerns about becoming involved in another – significantly, in another proceeding. But this is a moving feast, really. They are assured by the things that are happening and some of the protections that are being put into place, but they have a genuine interest in providing information to the Commission about their experiences.

And I say that indicating their experiences as a whole, not just what occurred on that single day. If the Commission is not with me in terms of my primary position, which is that I be able to observe on their behalf the evidence in full of the two vulnerable witnesses, I then would seek to speak to the practice direction 5 and specifically point 4. Now, I may be incorrect in my interpretation, but my understanding is a summary of the statement and also a summary of the evidence will be provided. With respect, I would ask that – if I not be able to observe that I be provided a full transcript of the evidence and the full statements. There are things I assume in there, given what I’ve heard about the length of Mr Voller’s statement for example, that I would need to seek specific instructions on.

And, in my submission, I can only do that properly and in a way that fairly makes sure that I am representing the three individual young people who have some common interests but also some different interests, appropriately.

COMMISSIONER WHITE: Thanks, Ms Lee.

MR O’BRIEN: Can I briefly rise to simply adopt the submissions of Ms Lee for my client on almost precisely the same basis. I don’t need to say any more than that.

COMMISSIONER WHITE: You are for Mr Voller. I’m just not quite sure, Mr O’Brien, that I’m not missing your point. You will be there when Mr Voller gives his evidence.

MR O’BRIEN: Yes. But in relation to AD, I rise, and obviously I simply point to the date of 21 August and remind your Honour – Commissioner, that that day and that that evidence, which obviously is relevant to Mr – to AD, is relevant to Mr Voller.

COMMISSIONER WHITE: Alright. Thanks Mr O’Brien. Have we got anyone else wanting to make any submissions? Yes, Mr Lawrence. Yes.


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MR LAWRENCE: I think I should make something brief at least, at this stage. In the general, I think each case or each witness has to be considered on its own circumstances. Some will be different than others; some will be more robust than others; some will require more protection than others. I had a discussion with Counsel Assisting last night in relation to AD, and his attitude about giving evidence and the protections that were being offered thereto. Since then there has been a change, because the psychiatrist has got an opinion about his mental condition, which has changed things somewhat. And what is going to happen is that my learned friend, Mr McAvoy and myself, are going to discuss the proposed options with AD fully, and then he will advise myself on his behalf as to what his preference would be as to how he gives evidence. So that’s where we are at.

COMMISSIONER WHITE: Well, I have – see some real concerns about that, because that might be a view that he holds today, but after the experience has occurred he may very well regret if he takes a particular course and that happens. He is a very – he is a particularly vulnerable witness, from the reports that I have read, and his capacity to withstand the experience may, in fact, be very problematic. And it’s – to me, he must be not considered, I think, from what I have read, really able to give a truly informed decision about this. I wouldn’t be comfortable about relying on his preference on Friday, 9 December in the morning, how he feels about it.

And sometimes vulnerable people really need to be protected. We all have a duty of care to that young person. And I just would be very anxious if there was anything other than a very protective regime in place, and Commissioner Gooda and I have discussed this.

MR LAWRENCE: And I accept that. And I’m not going to criticise that in one way at all, but nevertheless I have discussed it with AD. He did have a view yesterday. I will further discuss it with him fully.

COMMISSIONER WHITE: Yes. Alright, thank you.

MR LAWRENCE: And with Mr McAvoy’s assistance, which I think is a good thing to do jointly, so that AD is as fully informed as he possibly can not only about today or next week but his future and so forth. And that should occur within the next couple of hours. So that’s the situation we are at now.

COMMISSIONER WHITE: Right. Thanks, Mr Lawrence. I think that’s everyone. Who wants to make a submission about at least AD? Mr McAvoy?

MR McAVOY: Commissioner - - -

COMMISSIONER WHITE: We have got the two medical practitioners, of course, ready to give evidence.

MR McAVOY: They have to – they have to leave the court precinct at 12.30, Commissioner, to get their flight. The – my preference is to commence their


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evidence, to get that evidence heard, but I can state fairly succinctly that it’s our position that where a witness is a vulnerable witness, this Commission must ensure their interests – the interests of that witness, in coming to these proceedings, is given the appropriate level of protection. And matters of procedural fairness don’t fade away, but they can be accounted for, and the manner in which the existing direction number 5 proposes to deal with that is, in my submission, sufficient.

COMMISSIONER WHITE: Yes. Thank you. Thanks, Mr McAvoy. I am not sure the extent to which the parties have been given a copy of the proposed direction about Dr James Fitzpatrick and Dr Carmela Pestell’s evidence. Have you all got that copy?

MS ..........: We’ve seen that. We have no difficult with what’s proposed.

COMMISSIONER WHITE: No. And could I say to those who might say otherwise about behaviour and so on, this – the representatives – it concerns only AD and those who are identified, so there can be no argument that the other persons who have been given leave to appear would have an interest in that, insofar as they could articulate an argument. And so we will close the court, and I will deal with the balance of that when I hear further from Mr Lawrence about AD. It’s just I’m so conscious of the time, I would prefer to dispose of it now, but I feel that we need to move on and I’m sorry about doing it in this way.

So, for those then, who are not listed, the representatives of the following parties only may be present in the hearing room: the members of the Royal Commission who are involved in this topic, the representatives of the Northern Territory Government and the representatives of witness AD. And, of course, the balance of the orders, the directives also stand, but I’m just identifying that for the purpose of clearing the room.

CLOSED HEARING ENSUED

[REDACTED INFORMATION]

ADJOURNED [12.51 pm]

RESUMED [1.09 pm]

COMMISSIONER WHITE: Mr McAvoy, we are just going to deal with the various applications that were made this morning.

MR McAVOY: Very well.

COMMISSIONER WHITE: Could I say that there was some suggestion that perhaps the media room could be used as a location. Commissioner Gooda and I are .ROYAL COMMISSION 9.12.16 P-602 ©Commonwealth of Australia Transcript in Confidence

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not keen on that. It’s not a secure place at all. So this is the result of our deliberations: that, notwithstanding the general direction, that is made in practice direction number 5, these are the directions that will apply with respect to the witness AD in the circumstance that the legal representatives for AD do not object to the presence of other legal representatives who had sought appearance – sought to be present.

The Commission directs that the evidence of the witness AD be received subject to the following conditions: that the representatives of the Royal Commission, counsel and staff, and all those who have leave to appear before the Commission and, in particular, the Northern Territory Government, the witness AD, Mr Middlebrook, the witnesses AA, AE, AC, may be present in the hearing room, but out of viewing of the camera which will focus upon counsel who is asking the questions. The evidence is not to be published except to the Commissioners, the counsel, solicitors and other staff of the Royal Commission for the purpose of exercising their functions and duties, the witness AD and their legal representatives, and those whom I have already particularised, that is having leave to appear, unless and until the Commission publishes on its website a summary of the report and evidence in relation to the hearing, and only to that effect.

This is a particular to be noted. The following information must not be published or otherwise disclosed directly or indirectly: any information which discloses or is likely to disclose the identity of AD and any particulars likely to lead to the identification of the child called to give evidence or mentioned in evidence with respect to this witness, and any other information which might lead to the identity of any other child who might be called to give evidence discloses or is likely to disclose the identity of or any particulars likely to lead to the identification of the child called to give evidence, or mentioned in evidence with respect to this witness, and any other information which might lead to the identity of any other child who might be called to give evidence. It will be necessary physically, I think, to abide by the directions of the technical staff about where to sit in this courtroom so that we can keep well out of sight.

Now, is there anything else? We need to have a sensible timetable. People do need to have some lunch. The blood sugar has got a bit low by this stage, I suspect, but we are also mindful that the witness waiting at some little time. So, Mr McAvoy, have you consulted with Mr Lawrence about this?

MR McAVOY: I have. The witness will be at the location for the evidence from at least 1.30, and ready to commence with evidence. In relation to what the witness will see of the hearing room, it had been my intention that the witness be able to see both his legal representative, Mr Lawrence and myself.

COMMISSIONER WHITE: That’s a good idea.

MR McAVOY: And - - -


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COMMISSIONER WHITE: He is familiar with both of you.

MR McAVOY: He is.

COMMISSIONER WHITE: So he is not familiar with Commissioner Gooda and me, so that might give him a bit of a fright.

COMMISSIONER GOODA: We did see him.

COMMISSIONER WHITE: He did, that’s true. But I don’t think he will remember us very well. Yes, fine, but I think probably half past 1 now is a bit early. So how long do you think it might take, his evidence? If we said 2 o’clock, would that - - -

MR McAVOY: 2 o’clock would be suitable to me, and – yes. 2 o’clock is suitable.

MS BROWNHILL: Absolutely. Thank you.

COMMISSIONER WHITE: Alright. Thank you. Well, we will adjourn, then, until 2 o’clock.

ADJOURNED [1.14 pm]

RESUMED [2.04 pm]

COMMISSIONER WHITE: Mr McAvoy.

MR McAVOY: Commissioners, we see on the screen [REDACTED INFORMATION], who has been assigned the pseudonym AD. I will just check that AD can hear me. AD, can you hear me?

MS ..........: He can’t hear you.

MR McAVOY: AD, can you hear me now?

AD: Yes.

MR McAVOY: Can you see Mr Lawrence, John Lawrence sitting next to me?

AD: Yes.

MR McAVOY: Do you remember me from the other day, in John’s office, when we had a – when we talked?

AD: Yes.


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MR McAVOY: Thank you for coming along. We are here today with the Commissioners for the Royal Commission, and they’re in the room with me. Now, do you have somebody there with you as a support person?

AD: Yes.

MR McAVOY: Okay. And you’re comfortable there?

AD: Yes.

MR McAVOY: Okay. So can you tell the Commissioners - - -

COMMISSIONER WHITE: We might need to do the affirmation first.

MR McAVOY: I was going to – no, I was going to ask him his name, just to be clear and then swear him in. I can swear him in now, Commissioner.

COMMISSIONER WHITE: We usually do that first with a witness. It doesn’t really matter. Why don’t you ask him his name. Go on.

MR McAVOY: AD, the Commissioners are going to ask you whether you are going to tell the truth while you are here. So the Commissioner will do that now.

COMMISSIONER WHITE: AD, can you hear my voice alright?

AD: Yes.

<AD, AFFIRMED [2.06 pm]

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

MR McAVOY: AD, can you tell the Commissioners just what your full name is?---AD.

Okay. And how old are you now?---[REDACTED INFORMATION].

[REDACTED INFORMATION]. And can you hear me properly on the other end there?---Yes.

Okay. Today, as we discussed, we are just going to talk to the Commissioners about your story of what’s happened to you and about your life a little bit. Are you happy to do that?---Yes.

Okay. You were born in [REDACTED INFORMATION]; is that right?---Yes – yes.

.ROYAL COMMISSION 9.12.16 P-605 AD ©Commonwealth of Australia Transcript in Confidence

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And can you just tell the Commissioners what your mum’s name is?---[REDACTED INFORMATION].

What’s your dad’s name?---[REDACTED INFORMATION].

And do you remember – are you the oldest child to your mum and dad?---Yes.

And do you remember your life as a young child with your mum and dad?---Yes. But not a lot.

Yes. You were with them for a little while when you were young. How old were you when you moved away from your mum and dad?---I think five, yes.

And where did you live with your mum and dad before you moved away?---In a place called [REDACTED INFORMATION]. It’s like a little outstation from [REDACTED INFORMATION].

Yes. Okay. And then – you then went to live with your [REDACTED INFORMATION]?---Yes.

Why was that, do you remember or were you told since?---I think it’s just for schooling.

How old were you when you went to your [REDACTED INFORMATION]’s house?---About five, six.

And your [REDACTED INFORMATION]’s name is [REDACTED INFORMATION]?---Yes.

And what’s her relationship to [REDACTED INFORMATION]?---[REDACTED INFORMATION].

So where did your [REDACTED INFORMATION] live when you went to live with her?---In [REDACTED INFORMATION].

And you lived there with some – she lived there with some other people?---Yes.

Who were they?---Three older [REDACTED INFORMATION].

And somebody else? [REDACTED INFORMATION]?---Yes.

And – so three older [REDACTED INFORMATION], did you say?---Yes.

Were they very much older than you?---No, not much. Not much older.

You were like the little brother?---Yes.

And how did you get on with your [REDACTED INFORMATION] while you were there?---Yes. Got on alright.


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Just alright or pretty good?---Yes, pretty good.


And your [REDACTED INFORMATION]?---Yes. Got along good with them too.

And what about your [REDACTED INFORMATION]?---Yes. Got along with him.

Did you talk to your [REDACTED INFORMATION]- - -?---Respected him.

You respected him. Yes. Did you get to talk – did you talk a lot with your [REDACTED INFORMATION]?---Yes.

What sort of things did you talk about with him?--- ..... things. Yes.

You felt like you could talk to him about most things?---Yes.

And you went to school there in [REDACTED INFORMATION]?---Yes.

Which primary school did you go to there?--- [REDACTED INFORMATION].

Did you like school when you were at [REDACTED INFORMATION]?---Yes.

So was that the same school that your older [REDACTED INFORMATION] went to. Were they there when you were there?---Yes.

And did you have friends at school?---Yes. I had a lot of friends.

And when you were at school, were there some subjects you liked more than others?---Yes. Maths, yes, I liked it.

And sport?---Yes, sports.

Did you go back to – did you go and visit your dad or go to [REDACTED INFORMATION] while you were still in primary school for holidays or anything like that?---Yes, we went back there for holidays but, yes, didn’t see dad.

He wasn’t there?---Yes.

Did you see some other family, cousins or something?---Yes – yes.

And how often would you go back to [REDACTED INFORMATION]?---For every school holidays, yes.

So you knew a lot of people out there?---Yes.

And how did you get there, do you remember?---[REDACTED INFORMATION] just drove us down in the car.

Your [REDACTED INFORMATION] had a lot of family there too?---Yes – yes.

Now, a few years ago, your [REDACTED INFORMATION] passed away?---Yes.


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Do you remember around about how old you were when that happened?---I think I was around about 10, yes.

How did you feel about that? You were pretty close to him?---Yes. Pretty upsetting.

Pretty upsetting, yes. You had some younger [REDACTED INFORMATION] come and stay at your [REDACTED INFORMATION]’s?---Yes.

How many of those younger [REDACTED INFORMATION] were there?---I think six, something like that.

And how old were they?---They was all younger than me, so one of them was two and the oldest one was nine. So - - -

Nine. And they came to stay with your [REDACTED INFORMATION] after your [REDACTED INFORMATION] had died?---Yes.

How long ago was that, that they came to stay?---Yes, 2013.

And you were at high school – at middle school by that stage?---Yes.

How were you going at middle school? Did you – were you liking that?---Yes. I was liking it.

When your little [REDACTED INFORMATION] came to stay with your [REDACTED INFORMATION], did things change at the house a bit?---Yes. It changed a lot.

Can you just explain how they changed. What changed for you?---Babysitting, and yes, pretty much just looking after them.

Yes. So you helped your [REDACTED INFORMATION] out a lot looking after all the younger kids?---Yes.

And did you have some arguments with your [REDACTED INFORMATION]?---Yes, I had a couple of arguments with her, but - - -

What was that about?---Yes. Just looking after the kids.

Was she being a bit strict with you?---Yes.

Asking you to stay home and look after the kids?---Yes.

And that’s what you were arguing about?---Yes.

And you got into a little bit of trouble at school around the same time?---Yes.

Do you remember what that was for?---Yes.

What was that?---Smoking weed and going to school stoned..ROYAL COMMISSION 9.12.16 P-608 AD ©Commonwealth of Australia Transcript in Confidence

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And is that the time you got suspended?---Yes.

And how long did you get suspended for?---One month.

What did you think about that?---It was too long.

Too long?---Way too long, because – yes.

How long do you think you could have got suspended for?---Probably two weeks.

So after you sort of got into trouble with school and you were having a few arguments with your [REDACTED INFORMATION], did you go somewhere else to live?---Yes. I went to my [REDACTED INFORMATION]’s house in [REDACTED INFORMATION].

In [REDACTED INFORMATION]?---Yes.

And which [REDACTED INFORMATION] was that?---[REDACTED INFORMATION].

And [REDACTED INFORMATION] had some kids too?---Yes.

How old were [REDACTED INFORMATION] kids?---One was five and the other one was seven.

And was it a bit better at your [REDACTED INFORMATION]’s house?---Yes.

Did you have any arguments with [REDACTED INFORMATION]?---No. That was all good between us.

[REDACTED INFORMATION] was a bit less strict than your [REDACTED INFORMATION]?---Yes.

And so you were still going to school while you were at your [REDACTED INFORMATION]’s house?---Yes, but not – not as much as I used to.

And it was around that time, was it, that you first started getting into trouble with the police?---Yes.

Do you remember what the first – what it was for, the first time you got in trouble with the police?---Shoplifting.

Yes. And can you just explain what happened when the – when the police – the police caught you, did they?---Yes.

And what happened then?---Yes. I just returned the stuff to the store and, yes, just gave me a warning.

The police gave you a warning?---Yes.


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But did you go to the police station?---Yes. We went back to the police station.


And so then after that you started getting into other trouble?---Yes.

What sort of things were you getting in trouble for?---Breaking in, stealing cars, yes.

But the police caught you again, didn’t they?---Yes.

Where were – do you remember where you were when you got caught that next time?---I think it was in [REDACTED INFORMATION], in [REDACTED INFORMATION].

And do you remember what happened after the police caught you?---Yes. They took me to a watch house [REDACTED INFORMATION], and yes, had an interview. They scanned my fingerprints and took me into the - - -

Was there anybody with you when you were interviewed?---Yes, Red Cross.

And do you remember whether you were charged at that time?---Yes.

You were charged?---Can’t remember.

Do you remember getting bail?---Yes – yes.

Your [REDACTED INFORMATION] coming to get you?---Yes.

Which [REDACTED INFORMATION], do you remember?---[REDACTED INFORMATION].

[REDACTED INFORMATION] got you out on bail and took you home?---Yes.

And you went back to [REDACTED INFORMATION]?---Yes.

So – but you ended up getting in trouble with the police again?---Yes.

Not much – not too much later than that, the second time when you went to the police station?---Yes.

And do you remember being taken to Don Dale?---Yes, I remember that.

Had you heard of Don Dale before you were taken there?---Yes, other fellows in [REDACTED INFORMATION] was talking about it.

Were you worried about it, about going to Don Dale?---Yes. I didn’t know what to expect. Yes.

Scared at all?---Yes.

What were you scared about?---Other people just telling me stories about what happens in there, yes.


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Getting beaten up?---Yes.

Or boys getting raped and that sort of thing?---Yes.

COMMISSIONER WHITE: Mr McAvoy, I’m just wondering if you are going to lead throughout.

MR McAVOY: I’m trying to get to a point where he can – I’m trying to help it along, Commissioner. I’m not going to lead throughout the whole course.

Can you tell the Commissioners what happened when you arrived at Don Dale?---Yes. They put me – put me in the cell. Got all my personal information off me and, yes, put me straight in the BMU, spent a night in there.

Okay. So the first cell they put you in is one where they took all your details?---Yes.

Do you remember if you saw a nurse?---No. No, can’t remember.

You said you were put straight in the BMU. How did you know it was the BMU?---Because it said BMU in the – one of the cells that I was in.

Okay. So did the prison officers tell you anything about what was going to happen and what you had to do?---They just told me to, yes, they just – they told me to – I might spend a night in the BMU, and next morning they will find a room for me, yes.

And how did you feel that night?---Yes, I felt scared. I was alone too, so I felt a little bit lonely.

I beg your pardon, could you say that again. Speak up a bit please, AD?---I felt lonely, yes.

Was there anybody else in the BMU cells?---No, I was there by myself.

And so you spent the night there?---Yes.

And what happened the next day?---Got up. We all had showers, had breakfast, and I went and grabbed my bedding gear and they moved me to a different room. Yes.

And so you saw some other boys there?---Yes.

How many other boys did you – do you remember how many other boys there were?---No, I can’t remember.

Did you recognise anybody there?---Yes, a couple of them fellows from [REDACTED INFORMATION].

And there was somebody that you knew pretty well?---Yes.


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Who was that?---[REDACTED INFORMATION].

So you were put into a room to share with someone?---Yes, with – they put me in a cell with [REDACTED INFORMATION].

And so when you were then in Don Dale, what are the things that you did during the day while you were there in that first time?---We went to school, yes. To - - -

What was the - - -?---Like - - -

Keep going?---Yes, we went to school till 3 o’clock and, yes, we just had free time after that.

What was the school like?---It was alright, but it’s too easy. It wasn’t like normal school and that, so I didn’t - - -

You found it pretty easy?---Yes.

How long were you there in Don Dale for that first time?---One month.

And can you just explain what it was like being in there that first time or for that first month?---Yes. Like, it was hard being away from family and all my friends. But when I was going to court, I just kept seeing other people getting bailed, you know, a lot of them other boys. I was confused. I didn’t know what was going on. Yes.

And so you didn’t get bail the times you went to court?---Yes – yes.

And you were frustrated because the other boys got bail and you didn’t?---Yes.

So after you had been there for about a month, something happened. Do you remember escaping from the Don Dale?---Yes.

Can you just explain what happened?---We finished our dinner. We had lockdown for about half an hour and came – yes, we came out again and they told us we was going to the basketball courts, so we went up to the basketball courts and yes, was – was playing a game of basketball and I just seen them other boys talking ..... all around each other and just talking. I didn’t know what they was talking about. So. Yes, I went and had a drink and I walked over to the boys and asked them what they was talking about. And yes, they – and yes, one was making his way from M block, he started running away from there. The boys just went crazy, yes. We went to the gym, grabbed weightlifting poles and, yes, we stuck it in the fence and climbed over.

Were you one of the boys carrying the weightlifting poles?---Yes.

Did you hear or see anybody say anything to the guards about those weightlifting poles?---Yes. I seen, I think it was [REDACTED INFORMATION], he was swinging the pole around and – he wasn’t going to hurt anybody, just trying to tell them to back up and, yes.


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And did you see anybody else do that or – did you see anybody else with the poles or swinging them around?---No.

Now, you were – you climbed over the fence using the poles in the fence; that’s correct?---Yes – yes.

And how long were you on the run for?---I think it was five days.

And then you were caught by the police and brought back to Don Dale?---Yes.

Can you just explain what happened when you were brought back to Don Dale?---Yes. The guard said, “You’re back”, and got my details down and everything, and they put me straight back in the BMU. Yes.

So when you were brought back – when you were brought back, did you have any handcuffs or any other shackles or anything on?---No. Just handcuffs, yes.

Did you have any – a spit hood on?---No.

You were taken to the BMU, you said?---Yes.

You went straight there. Did the – were the other boys with you when you were brought back?---No, they was already – they was already at Don Dale, yes.

When you came back, did you talk to the guards about anything when you were being brought back in?---Yes, they just – they was asking me what did I do in the last five days. Yes, that’s about it.

And did you talk with them - - -?---Yes.

- - - about that?---Yes, I had a talk to a couple of them, but the guards who I get along with.

Did you say anything to them about escaping again if you wanted to?---No.

Did you hear any of the other boys say that?---Yes, I heard [REDACTED INFORMATION] talking about it. Yes.

To the guards or - - -?---No. Not to - - -

- - - amongst themselves?---Yes.

Between each other?---Yes.

Not to the guards?---No, not to the guards.

Do you think the guards could have heard them when they were talking?---I think so.


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You think so?---Yes.

Okay. So you were taken back to the BMU. Were you told anything about how long you would be there?---No. They didn’t tell us how long.

So you went there. Which cell were you in, in the BMU?---Cell 1.

And do you remember what it was like in the first week?---Yes. First couple of days, the first week, it was just like – we was all confused, you know, we didn’t know when we were going to get out of there, and we just kept asking, but no one told us anything. Getting frustrated.

Yes. Do you remember whether you – what you were doing in the cell in that first week?---Pretty much sleeping or just laying on the bed.

Do you remember going outside at all?---No. Not in the first week, we didn’t go outside.

At all?---Yes.

Did you go for showers?---Yes. We – we went for showers, but that was in the same little area that the cells was in.

So you didn’t go outside for any rec time?---No. Not in the first week.

Did you ask anybody what was happening, like the guards, what was happening?---Yes, we kept on asking them, but they didn’t tell us anything.

When would – how would you do that?---Just – they have an intercom and we just pressed the buzzer – button and talked to them through there.

How many times a day would you ring the buzzer?---Like four times, five times a day.

Is that just you ringing it yourself, five times a day?---No. Like, yes, I do it, and one of the other fellows call up, yes.

Are you right?---Yes.

And so you would take turns at pressing the buzzer?---Yes.

Why was that?---I don’t know.

What were you asking for?---Just when we was going to get out of there. If we had any management plans. Yes.


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And what was the answer when you called up?---They said that we have to talk to [REDACTED INFORMATION] about that.

When you pressed the buzzer, could you tell who was talking on the other side?---No.

Could you see them?---No.

Did the buzzer get answered every time you pressed the buzzer?---Not all the time.

And so over that first week, you would have pressed the buzzer a fair few times?---Yes.

What happened then in the second week. Was it more of the same, or can you explain what happened?---It was pretty much the same but, yes, we get to come out of our cells for about half an hour, have showers, phone call, and go straight back into a cell.

Do you remember talking with a caseworker?---Yes.

Was there just the one caseworker that you saw or more than one?---There was a few of them.

Is there one in particular you can remember you saw when you were at the BMU that time?---Yes, [REDACTED INFORMATION].

Do you remember was that in the first week or the second week or when did you see him?---Second week, yes. During the second week.

And do you remember what [REDACTED INFORMATION] said to you and what you said to him?---He just kept saying he was going to push through for a management plan, yes.

Did you understand what was a management plan?---Yes.

What was a management plan going to do?---Like, get more rec time or more phone calls. Yes, more time out of the cell.

So did that happen? Did you get a case management plan?---No.

So the second week went by. What did you do when you weren’t up and getting a bit of rec time or seeing case workers, what did you do in your cell in that second week?---We just talk amongst each other. Yes. Just walk around in the cell. Yes, read some books, magazines. Yes.

Do you remember what sort of magazines you had in your cell?---Street Machines, yes.


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Do you know where they came from?---No.

Do you remember the 17th day that you were in the BMU?---Yes.

Can you tell the Commissioners what happened on that day?---Yes. We kept buzzing up to [REDACTED INFORMATION] and we kept asking if we could see [REDACTED INFORMATION] then. Yes. Back then ..... he was on the other side, but, “Hey, [REDACTED INFORMATION] can you come down and talk to us about our management plan?” He was like, “Yes, I will go – I will go in there before I knock off.” Yes. Then about half an hour later, I buzzed up again, and I asked for [REDACTED INFORMATION] and they told me [REDACTED INFORMATION] was going home, and they just – during the first two weeks everything was just building up, and yes, I just lost it.

So what happened? Can you tell the Commissioners what happened then? What you did and how you felt?---I felt really angry, and confused, and frustrated because I didn’t know how much longer I was going to be in there for. And yes, just saw a screw hanging out of a light fighting and I just threw my sheet up there and pulled it down, and I started smashing the walls and smashing the door, and I ended up breaking a little hole through the door and putting my hand through the food hatch and, yes, was passing stuff to each other, me, [REDACTED INFORMATION]. And, yes, I just felt the door handle and I was pretty shocked that it opened up, because I always see them lock the door.

Can you just explain how you felt the door handle?---I just pressed on it and it just went down and the door just opened up.

Did you have to put your arm out through something?---No.

Did you press on the inside?---Yes.

And what happened then?---Then I just ran outside, started smashing the windows and stuff and I started swearing at [REDACTED INFORMATION], because [REDACTED INFORMATION] was on the other side and, he – other fellows were passing stuff to me, just throwing it around and, yes.

What sort of stuff were you throwing around, can you just - - -?---Just bits of the light fitting, broken parts.

You said you were angry. How were you feeling once you got out of the – out of your cell?---It was just like my anger was hitting me in waves. Like, I felt – I felt like I couldn’t control myself, yes.

Have you ever felt that before?---No. First time.

Do you remember if the guards were saying anything to you at that time?---Yes. They was just trying to calm me down. Yes. They were saying we should talk about it, but I was too angry at the time. I just – yes.


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Do you remember which guards you were talking to, or were trying to talk to you?---I think it was [REDACTED INFORMATION] – [REDACTED INFORMATION], yes. Because – yes.

You can remember him or you’re not sure?---Yes, that – I can remember.

He was trying to talk to you, to calm down?---Yes – yes.

Do you remember any of the other guards that were there at the time?---Yes, I know a few of them other guards. There was [REDACTED INFORMATION], [REDACTED INFORMATION], [REDACTED INFORMATION]. Yes. That’s the only fellows I could see.

You could see them? You could – and you recognised them?---Yes – yes.

Do you remember trying to climb out a window?---Yes.

Can you just talk about what happened then?---I was trying to climb out. I was looking for somewhere to run. I stuck my head out. I think a guard called [REDACTED INFORMATION], he hit me on the head with a broom and, yes, I just grabbed parts of the lights fitting and I just threw it out the window and – yes.

Do you remember seeing [REDACTED INFORMATION], or how do you know it was [REDACTED INFORMATION]? Are you sure it was him?---Yes, because when I stuck my head out, I seen him.

And that was the one that had the – sorry, what did you see [REDACTED INFORMATION] do?---I just – he grabbed a long stick, like a broom and he just hit me on the head with it when I stuck my head out the window.

And what did you do then?---Grabbed a light fitting and I just threw it out the window.

Did it hurt you much when you got hit on the head?---No, not much. It was - - -

Do you remember getting into the administration office?---Yes.

How did you do that?---There was a glass – there’s a window with the admissions office to the BMU and yes, I just smashed a window and jumped through. Yes.

So what did you do in there?---I smashed a computer and grabbed a walkie talkie and a fire extinguisher.

Okay. Do you know why you smashed the computer?---Because I was angry. I just felt – yes.

Do you remember hearing any dogs barking?---Yes.


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When was that?---I heard a dog just – when I heard the dogs, I just – that’s when I grabbed a fire extinguisher because that’s the only thing I could see to, like, protect myself, from the dog.

Did you grab the – did you – were you already in the administration office when you heard the dogs or that’s when you went in there?---Yes, that’s when I went in there. Like, before I jumped in, I heard the dogs first and, yes, jumped through the window.

And so you said you got a walkie talkie. What did you do with that?---I gave it to [REDACTED INFORMATION].

And – sorry, what did you say you were going to use the fire extinguisher for?---Protect myself from the dog.

Are you scared of dogs?---No. But I seen what police dogs do to people.

You’ve seen it where?---On TV.

So how were you feeling when you heard the dog barking?---Yes, I felt really scared.

Did you know if there were any other officers with the – that came around the same time as the dog?---Yes. I think they called it the riot squad, yes.

How did you know they were nearby?---I could see them and hear them, yes.

What could you hear?---I could just hear them, like, they were trying to find a way to get me. They was trying to come through other doors and stuff but – yes.

Do you remember any of the guards, do you remember talking to any of the guards around this time?---Yes – yes – yes. I was trying to talk to [REDACTED INFORMATION]. I told him, “Can we try and talk, like, things out”, but he told me it was too late for that because he tried to ask me earlier, yes.

So who were you talking to when you said that?--- [REDACTED INFORMATION], the same fellow that was trying to calm me down.

And do you remember the words that you said to him?---Yes. “Can we talk about things, can we try and work things out”, yes.

And what did they say when you said that?---They said it was too late.

Do you have your statement there, AD, with you?---No.

COMMISSIONER WHITE: Mr McAvoy, he seems to be looking to his left. Is there a monitor that is showing a screen?


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MR McAVOY: I’m not sure, but the – I understand that there’s an officer of the Commission there who has a copy of his statement?---Yes – yes, he’s got it here. Thank you.

Can you have a look at paragraph 25, please, of that statement. Can you see where paragraph 25 is, AD? It’s over on page number 5?---Yes.

Can you just – can you just have a read of that statement, that paragraph to yourself. Can – reading that paragraph 25, do you remember things that you said to the guards?---Yes.

Can you tell the Commissioners what you said to the guards?---“I give up.”

Do you remember which guard that was that you said that to?---No. It was one of the guards from Berrimah.

One of the guards from Berrimah?---Yes.

Do you remember what happened next after you had spoken – tried to talk to the guards?---That’s when they tried to run in and grab me, but there was like a little hallway and I sprayed – I sprayed them with the fire extinguisher, and a few minutes after that, that’s when they came in with the tear gas and they sprayed us. And, yes, burning my eyes and throat.

So when – you said they came in with the tear gas. What happened? Can you remember what happened when they came in to do that?---Yes. They was walking up with the shield and they put it against a window where that hole was, just in case I was throwing anything at them, then they do this – sprayed the gas.

Do you remember how many times they sprayed it?---No. Can’t remember.

And so what happened after that?---Yes. I got my mattress, there was glass all over on the ground, and put my mattress down and laid on it and that’s when they came in, and yes, handcuffed me. And I was taken outside, on the basketball courts, and was hosed down to get all the chemicals off us.

Have you had – been gassed before?---No. First time.

Did you know what was happening?---No.

How did it feel, can you explain the feeling of it?---I was scared. Like, I didn’t know what to expect.

And did it affect your eyes? How did it feel on your eyes?---Yes. It was burning my eyes and it was, like, burning my throat and yes, my eyes got teary. Yes.


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And why did you get on the ground? Did you just do that yourself?---No, I heard them other fellows just coughing and yes, I decided to do that by myself because – yes.

So you could hear the other boys that were in the BMU with you?---Yes. And they was telling me to just get on the ground because they wanted to get out of our cells because – yes.

And then you were taken outside?---Yes.

We have got a little bit more – a reasonable bit more evidence to get through, AD. Are you right to keep going or do you want a break or are you right?---Yes, I’m alright. Alright to keep going.

Okay. So you were taken outside. How were you taken outside? Who took you outside?---The riot – yes, the riot squad.

How did they do that?---They just pushed on my head towards the ground and, yes, they walked me out with my hands behind my back.

Did you have handcuffs on then?---Yes.

Did you have anything else or just handcuffs?---Yes, just handcuffs.

And so you are taken out into the rec area, basketball courts?---Yes.

Were you on your own or with the other boys?---Yes, the other boys was there too.

And they hosed you down, you said?---Yes.

Were you dressed or did you take your clothes off?---What was that?

Did you have clothes on or did they make you take your clothes off to hose you down?---No. We had clothes on.

And after they hosed you down, can you just explain what happened then?---Yes, they shackled us, put handcuffs on, spit hood and, yes, they put us in a van and drove us over to Berrimah.

And how were you taken – who took you from the basketball courts to the van?---The guards.

The guards from Don Dale or the riot squad guards?---Yes, riot squad.

And you said you had a spit hood put on your head?---Yes.

Had you had one of those on your head before?---No.


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Had you spat on anybody that night?---No.

So the spit hood was put on your head and you were walked to the van from the basketball courts. How far was that?---The van was right near the basketball court. So it wasn’t far.

And what position were you – did you have handcuffs on?---Yes.

Did you have shackles on?---Yes.

Around your ankles, yes?---Yes.

And a spit hood. And what position were you in, walking to the van. How were you escorted to the van?---They just walked us, yes, just walking beside us and holding our arms.

How were they holding your arms?---Just – yes, just holding our arms, like – yes.

Okay. And do you know where you were taken to from there?---To Berrimah.

So you were in the back of the van. Were there other people in the van with you?---Yes.

The other boys that were in the BMU?---Yep.

You were all there together in the back of the van?---Yes.

Okay. Can you just tell the Commissioners what happened when you got to Berrimah?---Yes. The guards told me if I do anything, they will slam me to the ground and yes, we got out of the van and they were still pushing our heads down towards the ground. And, yes, they grabbed a – grabbed a baton and put it through our arm and, yes we was – they walked us to our cells.

So what was – how was – was the baton used in any way when it was through your arm to make you walk in a particular way?---Yes.

How was that?---Walk like – I was – I was walking head down and if I tried and get up they just pushed – moved the baton and, yes, and just hurt my arm and keep walking.

So you couldn’t look up?---Yes.

How do you know you went to Berrimah? Did you – how did you know it was Berrimah?---They was telling us. The guards. The riot squad guards.

They told you when you got there that you were at Berrimah?---No. They was telling us we were going there from Don Dale.


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Yes. And so you were escorted in to Berrimah?---Yes.

With the baton behind your arm, through your arm, looking down, still with the spit hood on?---Yes.

Still handcuffed and shackled?---Yes.

And so what happened when you were taken into Berrimah?---Took us to a cell. We all had separate cells. And, yes. They put – they put me in a room and, yes, took the shackles and handcuffs off, but they told me to get on my knees and wait for them to leave the room. And, yes.

Do you know which part of Berrimah you were in?---I think it was maximum security.

And how long did you stay there at Berrimah?---I stayed there for one night.

And where did you go to from there?---The next morning they came and got me. We went down to medical to check if there was any injuries or cuts or anything, and after that they came back to my cell. I was – they put the spit hood back on, and handcuffed me, and they walked me to the van. Then they was telling me, like, that I will be going back to Don Dale. And yes, they took me over to Don Dale.

Did they – were you shackled or just handcuffs and spit hood that time?---Yes, just handcuffed and spit hood.

Was the baton up between your arm? Were you forced to look down?---Yes – yes.

And so when you got – when you were in the van going back to Don Dale, the handcuffs were still on?---Yes.

And the spit hood?---Yep.

Had you spat at anybody over the previous day or night?---No.

So when you got back to Don Dale, what happened, can you remember?---Yes. They put me in the holding cell. They took the handcuff and spit hood off, then went straight back to the BMU, but this time I was in a different cell and I was there by myself. I don’t know how long I was going to be there for, but ended up staying there for three days, yes.

Was – during those three days, was there anybody else in the cells there at the BMU with you?---No.

So you were on your own for the three days?---Yes.


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Did you – did the guards come and see you while you were there?---Yes, sometimes. Just come and check up on me.

How often would that be?---In person, probably once a day.

And did you have anything to do in the cells.?---Yes, they get me reading materials and there’s a radio through the intercom and yes, that was it.

So you were able to listen to the radio through the intercom?---Yes.

And how did you get the radio turned on? Did you have to buzz and ask for the radio to be put on?---Yes.

Were you ever told how long you were going to be in the BMU?---No. They didn’t tell me.

You said you were there for three days. Where did you go then?---They moved us to a section in Holtze, in the prison.

It’s a detention centre called Holtze. How did you know it was called Holtze?---The guards was telling me when we were going there.

Did you know whether it was an adult prison or a Youth Detention Centre?---No. I wasn’t sure.

And so when you were taken to Holtze, how did you get there?---They moved me in one of their vans.

And were you in handcuffs again?---Yes. Shackled.

Shackled?---Yes.

Did you have a spit hood that time?---No.

So when you got to Holtze, what happened there?---Yes. They separated us from the other fellows – other boys, but us boys was in the BMU was all in the same section and, yes, it was a bit better there because had more time out and, yes, a lot of things to do to keep us busy. School. Yes.

So it was a better place at Holtze than where you had been at Don Dale?---Yes.

You went to school?---Yes.

What was the school like at Holtze?---Yes. It was pretty much the same as Don Dale.

How long did it go for each day?---Probably till 2.40, or 3 o’clock sometimes.


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Like regular school?---Yes.

So you thought Holtze was a better place?---Yes.

Who else was there?---Me, [REDACTED INFORMATION]. Yes.

And how long did you stay there for?---I think it was about 10 weeks.

Do you know whether, while you were there, you had been sentenced or you were waiting for bail? Do you know what the situation was with the court?---No. I was still on remand. Yes. Went to court a number of times too during that 10 weeks.

What happened a number of times during the 10 weeks?---I was going to court. But they just kept remanding me.

While you were there, you heard some news about or reports about what had happened at Don Dale?---Yes.

What did you hear and what did you think about what you had heard?---Well, I heard that they called it a riot. It wasn’t a riot. Yes.

What was it if – what would you call it?---I don’t know.

While you were there at Holtze, do you remember seeing the superintendent from Don Dale?---Yes.

Do you know his name?--- [REDACTED INFORMATION]. Yes.

Did he come and see you?---Yes. He came and seen us and he asked me if I was going to do anything stupid but I told him, “No. As long as we get time outside of our – like, more time outside of our cells; I will be alright.”

Do you remember where you went to after 10 weeks in Holtze?---Yes. I moved back to [REDACTED INFORMATION], stayed there with an [REDACTED INFORMATION]. And – yes. I had to do community service and, yes, the court orders that I had to go down to [REDACTED INFORMATION] and, yes, I went down there.

Do you remember during, around about the same time getting bail for a short while to go and stay at your [REDACTED INFORMATION]’s?---Yes. Yes.

Is that where you went straight after 10 weeks or was that later?---No – yes. Straight after.

And then later you went to [REDACTED INFORMATION], did you?---Yes.

On a suspended sentence?---Yes.


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And so did you do at [REDACTED INFORMATION] area?---Yes. Just cattle work, mustering, fencing.

Who were you there with?---I was there with my dad.

What was that like?---Yes. It was fun.

Had you spent much time with him before that?---No. Haven’t seen him. Yes.

So how long do you think you were there with your dad?---I think it was six, seven months.

It was a good time?---Yes.

And after that, did you go to [REDACTED INFORMATION]?---Yes. We went down there for a football carnival and, yes, I seen mum. I haven’t seen her in ages and, yes, I walked up and said hello and she asked me if I wanted to stay down there with her. Yes. Ended up staying down there.

How many years do you reckon it had been since you saw your mum?---10 years.

You were pretty happy to see her?---Yes.

And she was happy to see you?---Yes.

Did she ask you to stay down there or you just decided to - - -?---Yes. She asked me herself.

So you didn’t go back to [REDACTED INFORMATION] from [REDACTED INFORMATION]?---No.

And you spent a bit of time catching up with your mum after you had met up with her again?---Yes.

And you – but you went back to Don Dale for a bit?---Yes. Got in trouble with the police and then had to serve that suspended sentence and it was three months.

And you went back to Don Dale?---Yes. I was in Alice Springs for a month and, yes, got sentenced and came up here to Darwin to Don Dale.

And was it different the second time, or that time you went to Don Dale?---Yes. Yes. It was different.

Why was it different?---More freedom and more things to do. And, like, the guards, because they know me from last time, they just come around and we will have a talk, see how, like, I was going. And – yes.


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Sorry. You were – you spent some time in the Alice Springs detention centre?---Yes.

After that, did you go back to [REDACTED INFORMATION] or to [REDACTED INFORMATION]?---Went back to [REDACTED INFORMATION].

And have you stayed there since?---Yes.

Have you been going to school?---Yes. I been going to school. Got a part-time job now through the school. So, yes, pretty happy with myself.

What’s the – what do you do for your part-time job?---Yes. I work out on a station, [REDACTED INFORMATION], you know, just basically the same stuff I was doing in [REDACTED INFORMATION], mustering and cattle work and checking the bores and stuff like that and selling cattle and stuff. Yes.

How do you muster the cattle? What do you use to muster the cattle?---Use quads or sometimes use horses. Yes.

And how do you do that and go to school as well? How many days a week do you do at school?---I do two days at school and three days out on the station. Then, yes, come back on Friday and have the weekend off. Then go back to school Monday, then same thing. Yes.

And do you like it out on the station?---Yes.

Away from town?---Yes.

Is that good or not good?---That’s good.

You like being away from town?---Yes.

Would you like to do more of that sort of work?---Yes.

As a stockman?---Yes.

Do you think that’s what you will do when you finish school?---Yes.

Can you just hold on a second, AD. Hang on a moment. There’s – Commissioners – hang on a second, AD.

COMMISSIONER WHITE: Yes, Mr McAvoy.

MR McAVOY: I understand my learned friend, Mr Lawrence, has a couple of questions he would like to ask and I have no objection. If - - -


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COMMISSIONER WHITE: Thanks, Mr Lawrence. AD, your barrister, Mr Lawrence is going to ask you some questions, now?---Yes.

<EXAMINATION BY MR LAWRENCE [3.24 pm]

MR LAWRENCE: AD, can you see and hear me alright?---Yes.

That’s good. That cattle work – you like doing that?

COMMISSIONER WHITE: Sorry, Mr Lawrence. Maybe if you just sort of inch across, that’s a bit better. I think that lectern probably works better for the camera. Are you comfortable there?

MR LAWRENCE: Of course.

I won’t keep you, AD. Were you asked to do a statement for this Royal Commission?---Yes. And - - -

And – go on?---I was asked but just do it from my own free will. Yes.

Nobody made you do a statement?---No.

Were you told that you didn’t have to do a statement?---Yes.

But you have decided to do a statement?---Yes.

And that’s the same for coming here to the Commission and telling your story?---Yep.

How did you get here?---Caught the bus.

And who did you come with?---I came with my uncle – yes – [REDACTED INFORMATION].

And did you come here a couple of days ago on that bus?---Yes.

And you are hoping to go back home to [REDACTED INFORMATION] after this telling your story?---Probably going to spend Christmas up here.

I just want to ask you a couple of things about when you were in the BMU, alright?---Yes.

How old were you?---14.

In that time when you were in the BMU, can you remember what was the first cell that you were put into?---Yes. BMU 1. So cell 1.

.ROYAL COMMISSION 9.12.16 P-627 AD XN©Commonwealth of Australia Transcript in Confidence MR LAWRENCE

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And who were you in that cell with, if anyone?---No. I was in the cell by myself.

And how long were you in BMU 1?---Probably for – probably half a week. Then – yes – I got moved into cell 3.

Is that where you stayed for the rest of the time in BMU?---Yes.

And who were you in cell 3 with for the rest of the time?---I was in there on my own.

And was there any other kids in the other cells next to you in the BMU?---Yes.

And when you were in that cell, did that cell have a fan?---No.

Was there any air conditioning?---Nope.

Was there a fan outside the cell?---Yes.

And is that in the area where it has a shower?---Yes.

And is that where you were allowed to have a shower?---Yes.

And were you allowed to get out of your cell every day to have a shower in that area?---Yes.

And is that the area when you go out, that you were running amok?---Yes.

And when you were allowed out of that cell 3, or cell 1, was that just for one hour?---No. For half an hour.

Half an hour?---Yes.

Was it hot in those cells?---Yes. Really hot.

Were you able to talk to the other kids through the door?---Yes. Yes.

Can you explain to me, please: the door handle in cell 3, is it on the inside of the door or is it on the outside of the door?---I think it’s on the – yes – on the outside.

So when you were able to open that door handle, was that by putting your arm through the hole in the hatch?---Yes.

And did you create the hole in the hatch with the light fitting that you had pulled down with your sheet?---Yes.

And were you surprised to find, when you pulled the door handle down, the door wasn’t locked?---Yes.


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Did you ask every day when you were in BMU when you were going to be allowed out?---Yes. Every day.

Did anybody ever tell you when you were going to be allowed out?---No.

Did anybody ever tell you how long you were going to be in there?

COMMISSIONER WHITE: The transcript might note, Mr Lawrence, that AD shook his head in answer to that question.

MR LAWRENCE: The guard that you asked to speak to, [REDACTED INFORMATION] – what’s his first name?--- [REDACTED INFORMATION].

[REDACTED INFORMATION]?---Yes.

And was he the guard you asked to speak to that night after you got out of cell 3?---Yes.

And was it him that told you it was too late to speak, you should have spoke earlier on?---Yes.

Has anybody – I withdraw that. Has anybody told you from the Prison Department why you were kept in the BMU?---No.

Do you still want to know why you were kept in the BMU for that period of time?---Yes.

Had you seen a spit hood before this incident when the riot squad came in after the gassing?---No.

Was that the first time ever you had seen one?---Yes.

Thank you.

MR McAVOY: I have nothing arising from those questions, Commissioners.

COMMISSIONER WHITE: I would like to ask a question as well, if I may. AD, when the riot squad came in, were they wearing any masks or protective cover over their eyes to protect them - - -?---Yes.

- - - from the gas?---Yes. They were wearing a gas mask.

Okay. Thanks. Mr McAvoy, I haven’t got any other questions I want to ask AD.

MR McAVOY: That concludes the evidence from AD, Commissioner.


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COMMISSIONER GOODA: AD, it’s Commissioner Gooda here. I just want to thank you for making yourself available to the Commission. I know it’s fairly difficult to give evidence like this?---Yes.

COMMISSIONER GOODA: But I just want to thank you, on behalf of Commissioner White and myself, for making yourself available and giving those statements and going through this questioning. So thank you?---Yes.

COMMISSIONER WHITE: Thank you. I think we will terminate the connection now, AD.

<THE WITNESS WITHDREW [3.32 pm]

MR McAVOY: Thanks.

COMMISSIONER WHITE: Thanks, Mr McAvoy.

MR McAVOY: That concludes the evidence for today, Commissioner.


MS BROWNHILL: There are a couple of matters I wanted to raise.

MR McAVOY: I’m sorry. I have omitted to tender some documents, which I will do before we move away from this witness. I tender the daily observation sheets for – still in closed court.

COMMISSIONER WHITE: I’m sorry, I just didn’t hear what you said, Mr McAvoy, for what?

MR McAVOY: I tender the observation sheets for the Behavioural Management Unit Journal for the period 04/07/14 to 9/8/14, and - - -

COMMISSIONER WHITE: That’s exhibit 41.

MR McAVOY: And following from that, the observation sheets from Don Dale Juvenile Detention Centre Behavioural Management Unit journal which are again observation sheets from 9 August 2014 to 23/8/2014.

COMMISSIONER WHITE: Should they be one exhibit or separate exhibits?


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MR McAVOY: It’s probably easier as one exhibit, but marked A and B because there are two separate - - -

HIS HONOUR: So they are just going to be two bundles in this lot or more than two?

MR McAVOY: Just two.

COMMISSIONER WHITE: So the first one can be exhibit 41A and the second one exhibit 41B.

EXHIBIT #41A OBSERVATION SHEETS FOR THE BEHAVIOURAL MANAGEMENT UNIT JOURNAL FOR THE PERIOD 4 JULY 2014 TO 9 AUGUST 2014

EXHIBIT #41B OBSERVATION SHEETS FROM DON DALE JUVENILE DETENTION CENTRE BEHAVIOURAL MANAGEMENT UNIT JOURNAL FOR THE PERIOD 9 AUGUST 2014 TO 23 AUGUST 2014


MR McAVOY: Those three exhibits should be recorded as confidential as to, well, the Commission and the Northern Territory government and Messrs O’Briens, AD’s legal representatives. And I should, of course, tender AD’s statement.

COMMISSIONER WHITE: Exhibit 43. Well, that’s in the same category.

EXHIBIT #43 REDACTED STATEMENT OF AD


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MR McAVOY: It is.

COMMISSIONER WHITE: Confidential. Yes.

MR McAVOY: Yes. That’s the – perhaps it should be noted that that is the identified and redacted form.

COMMISSIONER WHITE: Thanks, Mr McAvoy.

MR McAVOY: That’s all the matters from me.

PUBLIC HEARING RESUMED

COMMISSIONER WHITE: Ms Brownhill.

MS BROWNHILL: A few matters, thank you, Commissioners. Firstly, I’m not sure that – there was mention this morning of the tender of our written submissions, but I don’t think we actually tendered it.

COMMISSIONER WHITE: I don’t think we got there.

MS BROWNHILL: So can I do that.

COMMISSIONER WHITE: Yes. It’s a bit out of sequence in the transcript for anyone looking for them, but I don’t think we can help that. So that will be exhibit 44.

EXHIBIT #44 WRITTEN SUBMISSIONS OF NORTHERN TERRITORY GOVERNMENT AS TO TAKING EVIDENCE FROM VULNERABLE WITNESS AD

MS BROWNHILL: Thank you. The next matter is that we have provided to the solicitors assisting the Royal Commission a number of statements, statements from Mr Yick who is the statistician, there’s two statements from him, and statements from Mr Davies and Mr Payne. Those latter two statements annexe annual reports from, respectively, the Department of Children and Families and the Department of Corrections. We would ask that those documents be tendered. We think that it’s important for the Commission to take the evidence from these witnesses in the context of and understanding those statistical matters to do with things like the nature of offending, the style of offending over the 10 year period, geographical vocations and all those sorts of things. So you have got that broader picture as you are hearing this evidence.

COMMISSIONER WHITE: Each of those statements, they’re confined to the annexing the report, are they?


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MS BROWNHILL: Yes, correct.


COMMISSIONER WHITE: So they can sit by themselves.

MS BROWNHILL: Yes. So we will ask they be tendered.

COMMISSIONER WHITE: Well, happy to receive those .....

MR McAVOY: Well, Commissioner, the tender of documents is required to come through Counsel Assisting.

COMMISSIONER WHITE: Well, then, Mr McAvoy, we will chug the train through you.

MR McAVOY: Well, Commissioner, I’m not in a position to tender the documents at this time. If it had been raised with me a little bit earlier, I might have been able to - - -

COMMISSIONER WHITE: What is the problem, are they being handed to you now?

MR McAVOY: They are with the Commission. I haven’t had time to consider them in any detail. I know about Mr Yick. I believe other people have been dealing with the other statements and I am unaware of the content.

COMMISSIONER WHITE: As I understand it from Ms Brownhill that these constitute simply published annual reports, Mr McAvoy. That’s all they are. They’re in the public domain, there can be no concern about them.

MR McAVOY: If – well, I must have missed that portion of the introduction to the documents, I’m sorry, Commissioner. If that’s the content, then I’m not going to – I will tender them.

COMMISSIONER WHITE: You won’t hold them up, will you?

MR McAVOY: No. I won’t.



COMMISSIONER WHITE: That’s exhibit from Mr Yick’s bundle, exhibit 45; for Mr Davies, exhibit 46; and for Mr Payne or Commissioner Payne, exhibit 47. Now, they will be somewhere so we can locate them and look at them. Thank you.

EXHIBIT #45 BUNDLE OF STATEMENTS BY MR YICK


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EXHIBIT #46 STATEMENT OF MR DAVIES WITH ANNEXURES

EXHIBIT #47 STATEMENT OF COMMISSIONER PAYNE

MS BROWNHILL: Appreciate that. Lastly, I wanted to raise some questions, really, but observations as well about what is proposed for next week. There are two issues. Commissioners will recall, when I was making the submissions about procedural fairness, I mentioned the witness AF, and we understood her to be being called. Then we were told she’s not being called. We apprehended from being told she’s not being called that we could put her statement and everything to do with her aside as it was effectively done in relation to the procedural fairness submission. So her material was irrelevant to our difficulties, because she wasn’t being called.

It now appears, from communications we have had, that there is some proposal actually to deal with her statement and/or other evidence, and we have been pressed for responsive statements to what we had understood to be evidence not to be called. So what we would like is some clarity about what is proposed with her statement, and obviously we would have difficulty with the Commission receiving a statement from a person who hasn’t sworn an oath adopting it, has done no more than apparently signed the statement. We don’t know whether she endorses or continues to endorse what is set out in that statement, so we need to understand what it is proposed to be done with. What does the Commission propose to do with a statement in that form? Once we know that, we can work out how best we need to respond to it.

COMMISSIONER WHITE: Right. Let me hear the other argument, because it’s not clear to us what is happening with the witnesses either.

MS BROWNHILL: Yes.

COMMISSIONER WHITE: Deal with that, Mr McAvoy. That’s A?

MR McAVOY: F.

COMMISSIONER WHITE: Yes. Thanks.

MR McAVOY: I’m attempting to deal with this on the run, Commissioner. I understand that there has been some correspondence between the Commission and the Northern Territory Government regarding the potential tender of the statement of AF on the basis that the statement has been with the Northern Territory Government for 14 days, I understand. Sorry, since 1 December. And there has been no issue raised with the content and, on that basis, it could be, according to the Practice Guideline, be tendered with - - -


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COMMISSIONER WHITE: Mr McAvoy, could you just inform the Commission and those who have got an interest in it: is this maker of this statement going to be proposed to be called as a witness next week or not?

MR McAVOY: I don’t understand that’s the case at all.

COMMISSIONER WHITE: The answer is no?

MR McAVOY: No, I don’t think so. Commissioner - - -

COMMISSIONER WHITE: You need to stand the matter down and get some instructions, I can tell that.

MR McAVOY: I do, and if I could speak with the Solicitor about all the matters she would like to raise this afternoon, I would be – we might be able to do it in a far more effective manner.

HIS HONOUR: Aright. I can see there’s a bit of awkwardness about it, so you need to be informed about what the state of play is. We will return to chambers and, when and if you want to talk further, we will do that.

MS BROWNHILL: Yes, thank you.

COMMISSIONER WHITE: We will just adjourn to a time to be fixed.

ADJOURNED [3.44 pm]

RESUMED [4.38 pm]

MR TIPPETT: Thank you for returning to the bench, Commissioners. It’s an application I have Friday afternoon, with brevity. It is an application to adjourn the evidence of Dylan Voller. The grounds of the application are that I have just received the statement of Mr Voller but not all of the annexures that are attached to it. The statement is supposed to be 47 - - -

COMMISSIONER WHITE: When you say you have just received the statement I thought you got it this morning.

MR TIPPETT: When I say just, I’m talking about 20 – now about an hour and a half ago; we have just got it off the machine.

COMMISSIONER WHITE: Didn’t you get an electronic copy of it this morning?

MR TIPPETT: No. We just got it. We just got our electronic - - -


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COMMISSIONER WHITE: I had understood you were to get it 15 minutes after it was - - -

MR TIPPETT: 12.40 – close to 1. But it didn’t – we had 47 – the statement itself is 344 paragraphs. There are 37 annexures – we haven’t got all the annexures – and there’s 10 CCTV footage records; we haven’t got those. Length: we do not know how long those are. Look, I understand that in relation to these sorts of things that there may be remedial steps in order to avoid, or at least reduce the potential for a denial of procedural fairness. But, Commissioners, this is a complaint that has real foundation, and it simply can’t go on. This is an important witness; a witness who makes all sorts of allegations that relate to my client either directly or indirectly in a range of circumstances.

Now, it’s one thing to say that my client will have an opportunity to give evidence at some later time. It’s another to deny my client the opportunity of dealing with a witness at the time that the evidence is given. Further, the opportunity for me to get instructions in relation to all of this material is significantly truncated or curtailed. I don’t really have, in truth, an opportunity to deal with it in full. The reason is Mr Middlebrook is leaving the jurisdiction on Sunday, and I have given you the story earlier on today so I won’t repeat myself.

Things are not getting better. They’re just worse. And I ask now that the Commission give serious consideration to adjourning the evidence of Mr Voller so that I am in a position to properly traverse the material that I have been provided with and that will take me, I expect, a day or so. AD’s evidence took me an hour and a half this morning between 9.30 and 11. That’s where I was this morning when things happened here and I was called back. And there were two or three matters that were quite significant in that witness’s evidence in relation to a flow-on effect concerning the operations that took place at that time.

Now, it is one thing to say that my client, as I said, can give evidence at some later stage and put these things in perspective. But it’s quite another to deny him the opportunity of putting questions either through Counsel Assisting or with leave asked by myself in relation to a range of matters - - -

COMMISSIONER WHITE: All right. Thanks, Mr Tippet.

MR TIPPETT: - - - and to have the opportunity of Mr Voller’s response.

COMMISSIONER WHITE: Thanks, Mr Tippett.

MR TIPPETT: And that’s important. So I won’t have an opportunity to deal with this material between now and Monday and I won’t have an opportunity to advise Counsel Assisting of those matters that we really need to take into account in terms of cross-examination. And I haven’t got most of the material.



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MR TIPPETT: So – and I’m talking about – I have got a statement but I haven’t got the 37 annexures, the 10 CCTV footage records, and I really haven’t had an opportunity to even see whether the material I have got is actually the material I ought to have. So with all that in mind, in my submission, it is perhaps inconvenient but certainly reasonable and appropriate that Mr Voller’s evidence be adjourned until I have the opportunity to deal with it. If it please the Commission.

COMMISSIONER WHITE: Thank you. Are you going to respond, Mr Callaghan?

MR CALLAGHAN: Mr Tippett, I’m instructed, does have access to all the material that is going to be provided to him now, electronically.

COMMISSIONER WHITE: I was informed this morning at court that he – in court? I’m sorry. In the Commission – that Mr Tippett was to be provided within 15 minutes. I’m not suggesting that that is an adequate time, but within 15 minutes of the electronic copy of all the material relating to Mr Voller. Did that not occur, Mr Callaghan?

MR CALLAGHAN: I’m told – all my instructions correspond with what you have just been told as to 12.40 was the time that it became available, or thereabouts.

COMMISSIONER WHITE: It’s perhaps – unless there’s something that you want to submit differently, Mr Callaghan, it has really been a little chapter that’s most unfortunate that Mr Tippett didn’t get this material earlier and considerably earlier than today. There is another way of managing the disadvantage and that would be for Mr Voller to be recalled.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: So that – in the new year, when some other time, because he is a vulnerable witness. It will not be a publicly available statement. So any difficulties associated with reputation or damage for anyone who is concerned won’t occur.

MR CALLAGHAN: Well, they won’t occur – if his evidence is given in accordance with practice guideline 5, they won’t occur at all in any event whenever the evidence is given.

COMMISSIONER WHITE: No. Correct.

MR CALLAGHAN: And that is significant in terms of that which you are now being asked to consider. I accept that - - -

COMMISSIONER WHITE: Well, perhaps if you could just consider my suggestion, that he might be recalled so that there will be an opportunity for the further questions to occur, that he comes on two occasions, or the second occasion is


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done by remote video link to the prison if the length of his sentence would mean that he is still there in 2017 in the beginning.

MR CALLAGHAN: I suspect Mr O’Brien would like to be heard on that.

COMMISSIONER WHITE: Yes. Well, he may wish to be. It’s just something that I am putting out for consideration. Just wait until we hear from Mr O’Brien, if you would, Mr Tippett.

MR TIPPETT: Certainly.

MR O’BRIEN: I completely and utterly oppose any recall of Mr Voller.

COMMISSIONER WHITE: Perhaps you should deal with the application then for him not to be called at all on Monday.

MR O’BRIEN: Yes. Well, he should be giving his evidence for the same reasons expressed by Counsel Assisting earlier this week in relation to that and for the exactly the same reasons as I expressed having read from the psychiatrist’s report as to why he should give evidence immediately. It is very far from satisfactory in my respectful submission for anything other than that to occur.

He is ready to give his evidence. He has conferred with senior Counsel Assisting and his team. He is prepared to come here on Monday. He is looking forward to the opportunity of getting this off his chest, of dealing with it to completion, of giving evidence in finality and it is for that reason that I do oppose and protest against the proposition that he be recalled. His evidence should be given once. It should be given at the most – earliest, most practicable moment.

I mean, I have some sympathy for Mr Tippett and his position, but this is a cruel application if it means that a vulnerable witness such as Mr Voller is going to have to come back again. And it’s a cruel application what we have already dealt with and what has already been said on my client’s behalf in relation to the real pain, the real risk of re-traumatisation. As Mr Lawrence said in relation to his client’s application, it’s not really an exercise of anything other than common-sense to understand the pain and trauma and rigour associated with giving evidence in proceedings such as these, and the standing that Mr Voller has in these proceedings.

COMMISSIONER WHITE: I understand Mr Voller wishes to give evidence in this room. He doesn’t wish to take advantage of doing it remotely.

MR O’BRIEN: He does. Correct.

COMMISSIONER WHITE: So he must be feeling reasonably robust; is that correct, Mr O’Brien?


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MR O’BRIEN: Well, he has the benefit of a great deal of assistance by a number of lawyers, counsel workers and supporters and psychiatrists who have evaluated all those matters. He wants to be here in your presence, Commissioner, in your presence, Commissioner, to say what he has to say and tell his story. And he has been commended for that. That’s great fortitude for a man who has gone through so much, a young man who has gone through so much. But to suggest he is anything other than vulnerable as everyone has accepted from day one and to suggest that he wouldn’t be re-traumatised by seeing what is shown on these videos, by explaining how he felt when these things happened to him and to have to come back again to do it a second occasion.

COMMISSIONER WHITE: No. He won’t have to do it a second occasion in that sense. There may be a number of questions, supplementary questions, they may be of very narrow compass. He can give those remotely. We would seek to keep them confined.

MR O’BRIEN: Well, we – sorry.

COMMISSIONER WHITE: I just have a real problem here with balancing these interests. Now, if at the time - - -

MR O’BRIEN: Yes.

COMMISSIONER WHITE: If at the time there is, in fact, medical or psychological evidence that he is not able to have questions put to him on a second occasion for a limited time, then we would entertain an application not to do so. He will give his – if he gives his evidence on Monday and as you can tell from the tone that we’re taking and we have discussed this, that he will have the catharsis that you say he is seeking to achieve through giving evidence, that will have occurred, and we can look again at whether he is fit to do it for a limited purpose on a second occasion.

MR O’BRIEN: Don’t think – sorry.

COMMISSIONER WHITE: But this is a very – this is a much more serious application by Mr Tippett. It has been a shambles, quite frankly, about how this - - -

MR O’BRIEN: But it’s not a shambles of Mr Voller’s making - - -

COMMISSIONER WHITE: Of course it is not.

MR O’BRIEN: - - - but it could very seriously disadvantage him.

COMMISSIONER WHITE: Well - - -

MR O’BRIEN: And can I come back to the issue of giving evidence remotely from the jail. I have raised my issues and concerns with that. We have addressed it in psychiatric reports that have been provided to Counsel Assisting. I would invite your


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Honour, Commissioner, to have a look at those psych reports because they demonstrate conclusively without any question he is unequivocally not in a position to give evidence from jail. So, in terms of remotely giving evidence, that is not desirable in one shape or form at all.

COMMISSIONER WHITE: Well, then – we were not suggesting for his principal evidence and, indeed, we can have a look at it again in relation to a second round, if he is fit and he can come here to do it for the second round.

MR O’BRIEN: I have said that Mr Tippett, for whom I have some sympathy in relation to procedural fairness, but I say this as well: he has two days. He has Mr Middlebrook here until Sunday and sure it’s not ideal that he only got the statement – and by the way, we had the statement to the Royal Commission many, many weeks ago, two weeks ago, I believe. So it’s not – so he has got no time. We are working weekends. Counsel Assisting said in relation to the application by the government yesterday, “Everyone is working weekends.”

And I’m sorry that Mr Tippett is going to have to take the weekend away from family to do so, but that he must because this is a particularly vulnerable and important witness who has expressed to me numerous times, “I want to give it once and I don’t want to come back”. And that has been relayed to Counsel Assisting’s team in written correspondence prior to today, prior to it being raised in the context of this application at 4.30 on a Friday afternoon. It’s something we did anticipate and didn’t want to occur. And we anticipated it on the instructions carefully given by our young client.

COMMISSIONER WHITE: Alright. Thank you. I think that I understand the submission.

MR O’BRIEN: Thank you, Commissioner.

COMMISSIONER WHITE: We have got that one.

MR CALLAGHAN: Commissioner, rightly or wrongly, I didn’t apprehend you to be – I’m sorry.

MR TIPPETT: I just wanted to tell you I’m off and away from my family as a barrister and I will - - -

COMMISSIONER WHITE: You can have the last – excuse me, Mr Tippett, I think you can - - -

MR TIPPETT: Thank you.

COMMISSIONER WHITE: You can make the final submissions.

MR TIPPETT: Yes. Thank you very much, Commissioner. I do appreciate it.


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COMMISSIONER WHITE: Alright. And so we will just let – Mr Callaghan needs to just address a few of these things.

MR CALLAGHAN: Cutting through to the bare points that have to be made at the moment, I didn’t apprehend you, Commissioner, right or wrongly, to be suggesting that recalling Mr Voller was something that was being now scheduled.

COMMISSIONER WHITE: Not at all. No.

MR CALLAGHAN: It would be something contemplated - - -

COMMISSIONER WHITE: Yes. It is.

MR CALLAGHAN: - - - as one of many options that can be engaged to address issues of procedural fairness, of which it can be taken the Commission is acutely conscious. The situation at the moment, as I would define it, is that Mr Voller is able to give evidence on Monday. If that is done pursuant to practice guideline 5, there is no danger of reputational damage occurring in the absence of procedural fairness and, indeed, the prejudice to be suffered by Mr Tippett’s client is entirely theoretical, albeit, reasonable to anticipate, but as Mr O’Brien points out, he can do something between now and then to redress it and then at the conclusion of the process is in a position to point to actual – rather than at the moment theoretical – prejudice and then the Commission can identify measures to deal with that prejudice, of which entertaining the possibility of recalling Mr Voller is but one.

So my submission is that we cross bridges when we come to them. The first will be on Monday morning, when Mr Tippett can inform us as to that which he has been able to do to deal with the situation, and the next will be at the conclusion of Mr Voller’s evidence and that’s when we can see how the remaining difficulties should be dealt with.

COMMISSIONER WHITE: It is anticipated that Mr Voller will give his evidence for the morning. Have you got any - - -

MR CALLAGHAN: Look, yes, I would like to think he would be finished by lunchtime or close to finished by lunchtime.

COMMISSIONER WHITE: Is that your assessment, Mr O’Brien?

MR O’BRIEN: I agree with that. Yes. It may be a bit longer than that, but it’s not for me to know, really.

MR CALLAGHAN: No. That’s – my estimate at the moment would be the first half of the day.

HIS HONOUR: Alright. Yes. Thank you. Now, Mr Tippett, you can respond to these various - - -


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MR TIPPETT: Just a couple of things, Commissioner. First of all, we don’t even have all the material yet.

MR CALLAGHAN: No. You do.

MR TIPPETT: We have got 19 annexures and there were 37. We don’t have those. We don’t have all the material. So that’s number one. Number 2 is Mr O’Brien’s impassioned plea on behalf of his client is all very well, but my client stands in a very significant, precarious position here as well, and he is entitled to all the procedural fairness that he can get and that means an opportunity of dealing with Mr Voller fully by way of instructions before we go ahead. He won’t have time to do that. It’s simply not so on the basis of the material.

COMMISSIONER WHITE: But this material in fact is not new to your client. All of this has been out in the public arena. I’m not suggesting that the affidavit – the statement itself is, but the topics under discussion. I mean, your client was the chief executive of the department. He has been alerted to all the issues that are raised by this inquiry for a very long time. So it’s not as if these are fresh things that come to him. I can’t for one moment think that he hasn’t been giving it a lot of thought.

MR TIPPETT: You are quite right in a number of senses. But Mr Voller’s allegations are quite new and there are quite a number of extraordinary allegations that are brand new and he would want to look at those. He would find it surprising that evidence is given and he hasn’t had the opportunity of really dealing with it beforehand and make whatever submissions that he might instruct me to make prior to the giving of the evidence.

There are many permutations and combinations in relation to these things, and I simply am not in a position to deal with it. Now if I thought I could, I wouldn’t be on my feet trying to delay this evidence. Equally, it’s not in my client’s interests that evidence be delayed. But if he can’t deal with it, as is the case, because of the circumstances that have arisen, then it ought to be delayed so that the Commission can be seen publicly as well as in the eyes of a person with a significant interest in the outcome that the evidence is fairly and properly called, and called in accordance with procedural fairness. And that will not be done if Mr Voller gives evidence on Monday. And there I leave my submission, if it please the Commission.

COMMISSIONER WHITE: We will just adjourn for five minutes and just consider the submissions. Thank you.

ADJOURNED [4.58 pm]

RESUMED [5.25 pm]


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COMMISSIONER WHITE: Ladies and gentlemen, Commissioner Gooda and I have discussed this matter. It took us a little longer to resolve than probably we had hoped. It has been a difficult exercise to balance the competing interests. That is, the interests on the one hand taking into account the witness, Dylan Voller’s vulnerability, the results of assessments that have been made of him, and his desire to give evidence in this Commission; on the other hand, there is Mr Middlebrook’s entitlement to have an opportunity to have the contents of the statement which has so recently been provided to his legal advisors and to take advice on that statement and those annexures.

Having anxiously considered both of those competing interests, we have come to the conclusion that, on balance, the balance should fall in favour of Dylan Voller giving his evidence on Monday as scheduled. We believe that there are safeguards that can be put in place. We encourage Mr Tippett and Mr Middlebrook and their legal team to give their best efforts to digesting the material and to giving consideration to questions that they would wish to have put to Dylan Voller by senior Counsel Assisting.

To that end, the Commission offers its assistance in terms of personnel to Mr Tippett and the legal advisors for Mr Middlebrook over this weekend, if that can assist in any way. If, notwithstanding those best efforts, Mr Tippett is unable to take instructions to prepare questions for Dylan Voller for Monday, then Dylan Voller may be fit and willing to have further questions put on behalf of Mr Middlebrook in the new year some time. It may be in a forum that is different from the court forum. The Commissioners, for example, may be able to attend and take his evidence on those further questions in a different place; for example, Alice Springs. There are other ways of dealing with it. The profession will be aware of taking evidence at the bedside of sick witnesses.

If this is not to occur, that is, a further appearance in some form by Mr Voller, then the Commission would not make findings against Mr Middlebrook relying on Dylan Voller’s evidence. Now, I am sure you have plans for Friday afternoon, or what is left of it. Thank you. Could you adjourn.

MATTER ADJOURNED at 5.30 pm UNTIL MONDAY, 12 DECEMBER 2016


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Index of Witness Events


AD, AFFIRMED P-605EXAMINATION BY MR LAWRENCE P-627

THE WITNESS WITHDREW P-630

Index of Exhibits and MFIs

EXHIBIT #39 STATEMENT OF DR PESTELL [REDACTED]


EXHIBIT #41A OBSERVATION SHEETS FOR THE BEHAVIOURAL MANAGEMENT UNIT JOURNAL FOR THE PERIOD 4 July 2014 TO 9 AUGUST 2014

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EXHIBIT #41B OBSERVATION SHEETS FROM DON DALE JUVENILE DETENTION CENTRE BEHAVIOURAL MANAGEMENT UNIT JOURNAL WHICH ARE AGAIN OBSERVATION SHEETS FOR THE PERIOD 9 AUGUST 2014 TO 23 AUGUST 2014

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[REDACTED INFORMATION] P-631

EXHIBIT #43 REDACTED STATEMENT OF AD P-631

EXHIBIT #44 WRITTEN SUBMISSIONS OF NORTHERN TERRITORY GOVERNMENT AS TO TAKING EVIDENCE FROM VULNERABLE WITNESS AD

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EXHIBIT #45 BUNDLE OF STATEMENTS BY MR YICK P-633

EXHIBIT #46 STATEMENT OF MR DAVIES WITH ANNEXURES

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EXHIBIT #47 STATEMENT OF COMMISSIONER PAYNE P-634

.ROYAL COMMISSION 9.12.16 P-644©Commonwealth of Australia

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.ROYAL COMMISSION 9.12.16 P-645©Commonwealth of Australia

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