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AUSCRIPT AUSTRALASIA PTY LIMITEDACN 110 028 825

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

TRANSCRIPT OF PROCEEDINGS

O/N H-772902

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

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

DARWIN

9.44 AM, THURSDAY, 20 APRIL 2017

Continued from 19.4.17

DAY 28

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND and MR D. INDEVAR for Dylan VollerMR P. BOULTEN SC appears with DR P. DWYER for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR TIWANA appears for Benjamin KelleherMR A. LEWIN appears for Barrie CleeMR J. TIPPETT QC appears for Ken MiddlebrookMS K. BALLARD appears for Howard Morgan

.ROYAL COMMISSION 20.4.17 P-2565©Commonwealth of Australia

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MR CALLAGHAN: Commissioners, you will recall yesterday we had some technical difficulties with some video footage - - -

COMMISSIONER WHITE: We did.

MR CALLAGHAN: - - - relating to an incident involving Mr Voller and Mr Tasker, and indeed others, on 9 December 2010. You ascribed exhibit number 291 to the footage, even though it wasn’t played. So I formally tender, and ask to be played, that particular video recording.

COMMISSIONER WHITE: Yes. Thanks, Mr Callaghan.

VIDEO SHOWN

MR CALLAGHAN: Thank you. I call Barrie Clee.

<BARRIE CLEE, RECALLED AND RESWORN [9.47 am]

COMMISSIONER WHITE: Thank you, Mr Clee, would you kindly be seated.

<FURTHER EXAMINATION-IN-CHIEF BY MR CALLAGHAN [9.47 am]

MR CALLAGHAN: Once again, Mr Clee, could you tell the Commission your full name, please?---My name is Barrie Clee.

You have given evidence to the Commission previously, but have also provided a further statement dated 13 February 2017; is that correct?---Yes, that’s correct.

Can we have a look at that statement, just get you to identify it. Should come up on the screen in a moment. That’s the further statement of evidence that you’ve provided to these proceedings?---Yes.

Commissioners, I tender that statement, subject to the observation that paragraph 28 has been redacted, should not be published, will not be the subject of submissions, and it follows could not be the subject of any further consideration by this Commission.

COMMISSIONER WHITE: Thank you. The statement of - - -

.ROYAL COMMISSION 20.4.17 P-2566 B. CLEE FXN©Commonwealth of Australia MR CALLAGHAN

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MR CALLAGHAN: I’m sorry, I’ve got the wrong statement. Got the wrong statement. This statement is just tendered.

COMMISSIONER WHITE: Alright. Well, the statement of Mr Clee is exhibit 294.

EXHIBIT #294 FURTHER STATEMENT OF MR CLEE DATED 13/02/2017

MR CALLAGHAN: Mr Clee, when you were here previously – or at least in Alice Springs previously – and this is in the transcript at pages 1132, 1133, you indicated that it might be – that you might be able to go back and find details of efforts that you had made to obtain extra funding and improve conditions. You recall giving that evidence?---Yes, I do.

And I understand there has been difficulties with your legal representation but, nonetheless, have you been able to do that?---No, I haven’t. I haven’t as yet, no.

Do you foresee any difficulty with being able to do that?---I have submitted – I – initially, I submitted a lot of documentation to SFNT, which indicated that I had made attempts to, and I automatically assumed that a lot of that document would already have been tendered as evidence.

Alright. So the materials to which you’re referring when you last gave evidence are to be found in materials that you have forwarded to the solicitor for the Northern Territory; is that your evidence?---That’s correct.

Okay?---Some of the material, yes.

Is there other material that you may yet be able to supply us with?---I think there may be, but I would have to go back and do a – basically a global search on – on the email vault.

Are you able to do that?---I can do that next time I’m at work, yes, or - - -

Alright. Thank you. Now, we don’t have to be completely precise, but between 2009 and 2011 you were in charge of youth detention centres in Alice Springs; is that correct?---That’s correct.

Indeed, I think you were the only permanent – or for substantial periods you were the only permanent member of staff in those centres; is that right?---Yes, that’s correct.

And as a result had significant contact with or involvement in the management of Dylan Voller?---That’s correct, yes.

Again, I don’t need to bog down in too much detail, but you recall in 2010 a Mr Murdoch was engaged to assess Dylan Voller’s behavioural needs?---I don’t recall


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the exact time, but I know – I do recall Mr Murdoch being engaged a couple of times.

Yes?---Yeah.

If you take it from me once was in 2010 and then again - - -?---2012, I think.

A bit later?---Bit later, was it?

Yes. About four years later, I think?---Yes.

Now, those reports that he produced were quite comprehensive in terms of addressing Dylan Voller’s behavioural needs. Would you agree with that?---Yeah.

What was the process, if any, by which the content of those reports, or the recommendations of those reports, were incorporated into any of the management plans that were applicable to Dylan Voller?---As – in my position as OIC in Alice Springs I didn’t have the authority to implement a management plan for Dylan. It was done through the psychologists or the senior case worker in Darwin and as far as reports, external reports and things like that were done with Dylan, they – they were all forwarded through to the senior case management team in Darwin, and management plans and things were developed off of recommendations of those.

I see.

COMMISSIONER WHITE: Did you have any – as the officer in charge in Alice Springs, did you have no input into your detainee – any of your detainees’ management plans, Mr Clee?---No, I didn’t.

How - - -?---I had very, very limited input. I was asked things from time to time on – on – on basically the detainees – this is generally, not just about Dylan – about the detainees’ day-to-day behaviours and what could – what could help to address the behaviours. But I didn’t have any direct implementation of them apart from, when a management plan was sent through to me, I was the one that was responsible for delivering it to the detainee and then it was all signed with the detainee and myself as a cosignatory to the management plan.

And - - -?---That was sometimes. That wasn’t all times.

I see. And would you then have to work through the management plan with the particular detainee? I’m not now talking about Mr Voller in particular, but just with any detainee who had a management - - -?---Yes, I would, yeah. And it was my responsibility to try and see that the management plans that were put in place were actually maintained through the – through the course of the – of the day.

Were there occasions when you thought there were aspects of the management plan that just weren’t a good fit for that detainee, or for the circumstances in which you


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were working?---Sometimes I did find, yeah. I can’t recall any one particular time, but there was - - -

You had that sense though?---I had that sense that some things in management plans didn’t work. It’s – I respect, like, psychologists’ views and their job, obviously, and I’m not qualified in that area but, as I said, I did try and make sure that they – they worked as best they could.

I’m just a little bit puzzled how someone – would those who were developing the management plan for the detainee in Darwin have any familiarity with the detainee? Would they come down and - - -?---No, sometimes not. Sometimes things were done by tele – just by telephone.

Okay. Right. Thank you.

MR CALLAGHAN: I might just explore that whole thing a bit further and perhaps do it by reference to a specific plan formulated for Mr Voller. It’s one that has a commencement date of 14 November 2011. I wonder if we could get that intensive management plan up on the screen. If we can go to page 3, there’s a heading Responses to Inappropriate Behaviour. You see that there?---Yes, I do.

And it is structured, first, by reference to low level inappropriate behaviour which might include something as vague, perhaps, as negative changes in mood. Do you see the fourth bullet point there?---Yes, I do.

What is the sort of thing in the administration of this plan that might have been regarded as a negative change in mood?---Just a change in attitude and demeanour towards a person or – or even a time.

Okay. And if we go to the second level of inappropriate behaviour, it might be, as we discern by reference to the first bullet point, something as basic as maintaining a low level of inappropriate behaviour after de-escalation techniques have been used?---Yes.

So if there was a change in attitude, if we go back to the first level of low level inappropriate behaviour, if there was just a change in attitude what sort of de-escalation technique might be used for that? Just a bit of counselling?---Just sitting down, talking, yeah.

Okay. But if, after that, the change in attitude persisted, the negative mood persisted, then it was open to deem the detainee to be exhibiting the second level of behaviour; is that right?---Yes.

And we can see the consequence of Dylan Voller escalating – any escalated high level inappropriate behaviour, that is any second level behaviour, the consequence of that, we see from the last bullet point, was that he would be escorted to the cell for a


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minimum period of 12 hours; is that right?---I haven’t got that up on – yes, sorry, I have. It’s on the line ..... a minimum period of 12 hours. Yeah, that’s what it says.

Yes. So if he stayed in a bad mood for – after he had been counselled by the staff, he could be, pursuant to this plan, taken to his cell for a minimum of 12 hours?---Yes.

And during that 12 hours, if we looked at page 4, second bullet point:

Interaction with case workers was forbidden except in an exceptional situation.

Is that correct?---That’s correct.

And, of course, in terms of interaction with case workers if the period of placement in the cell began at, say, 9 am for 12 hours, that would go through till?---9 pm.

9 pm, might be unlikely that there would be a case worker around anyway?---There wouldn’t be.

So could easily - - -?---It would roll onto the next morning.

Go into a 24 hour period?---Well, no – not. It wouldn’t – without the intervention of a case worker?

Yes?---That’s right.

I understand what you – the evidence you gave a moment ago about the limited role or non-existent role you may have had in the formulation of a plan like this?---Yeah.

But would you agree that, in the sort of situation I’m talking about, where a child might really be doing nothing more than maintaining a negative mood, it might be the very time when contact with a case worker was particularly important?---I would agree with that.

And yet wherein they might have most been in need of it, they couldn’t even say hello to a case worker for at least 12 and perhaps up to 24 hours?---Correct.

It’s a certain kind of madness that underpins that sort of philosophy, isn’t it?---Case workers have always primarily worked as basically third party to detainees to try and – and help them, yeah.

Well – and let’s leave the case worker is side, even just the concept of a minimum of 12 hours, do you have any understanding as to whether there is a basis in correctional philosophy or child psychology or anything else for that arbitrary period of 12 hours?---No, I don’t.

Some years later, as I’ve discussed, Mr Murdoch did another report; you recall that?---Yes, I do, vaguely.


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You were consulted about that, I think?---Yeah.

You may have indicated to him that you thought Dylan Voller was a good worker. Do you remember that?---Yeah, I do.

That was your - - -?---I do, yeah.

Your opinion, that he was a good worker, and certain recommendations were made by Mr Murdoch?---Yeah.

You recall – and I can take you to the transcript if you need to – but you were interviewed by the Children’s Commissioner about this and your remark to him was that, in effect, the recommendations made by Mr Murdoch fell by the wayside. I think that was the phrase you used?---Yeah.

You can see the transcript if you like?---I still don’t recall it. Yeah.

Fell by the wayside, you seem to indicate, because of a spike in numbers?---It was due to his transfer to Darwin.

Alright. We might get the transcript up, if we can. It’s the Children’s Commissioner interview of 6 October 2015 and I’m only just putting this up to refresh your memory. I just want to know the basis for it. Go to page 7, right at the top, and I will stand corrected. It wasn’t your phrase, but it was a phrase you adopted. If we need to go back – we might go back to page 6 just so you can see the context?---Yeah. I remember this.

Okay. Can you please just explain what the situation was and whether it’s the case, the trouble had been gone to, to get this report, but it did seem to fall by the wayside for reasons that I think you’re explaining there, but I’ll ask you to clarify here?---I think it was a combination of a couple of reasons, and they – it did fall by the wayside, because Dylan transferred back to Darwin at the time. He was actually transferred for two reasons, because he actually requested it, and – and because of our current numbers in the centre which appear, at this time, to be excessive again.

Yes. Alright. There would have been nothing – can you suggest any reason why the recommendations in the report couldn’t have been incorporated into a plan that was applicable in Darwin?---I don’t see why it wouldn’t have been.

There was nothing specific - - -?---No.

- - - about Alice Springs that needed to be incorporated into the plan?---I think – I’m not sure whether it actually – I haven’t got a copy of the plan and I haven’t seen it, but I – I think there was some specifics about trying to get Dylan over into the industries department at the correctional centre.

Yes. For some vocational - - -?---Yeah.


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- - - sort of training?---To actually get into – to work, yeah.

And that was a common enough – withdraw that. That, I think, was suggested more than once over the years, wasn’t it, that some vocational - - -?---Not just for Mr Voller, but a few of the other detainees.

Yeah?---That’s one of the – one of the things I put forward for the centre, to try and get some of the older kids over into the industries department.

And given your assessment of him as a good worker, whilst as you say it might have been for other kids as well, it might have been particularly beneficial for him?---It would have been, I think, yeah.

Yes. Thank you. That’s all I have for the moment. Sorry, I will tender – I will tender the intensive management plan of 14 November.

COMMISSIONER WHITE: Can I just mention that it is exhibited to Mr Ashley Morton’s statement. If that’s going in, it will go in in that place, or do you want to put it in in two places?

MR CALLAGHAN: No, I don’t need to put it in in two places, as long as we – well, with respect, Commissioner, you having said that, that will be easily locatable down the track. But the transcript of the Children’s Commissioner interview – excuse me. I’m told that the plan that’s exhibited to Ashley Morton’s statement is a different one.

COMMISSIONER WHITE: Is it?

MR CALLAGHAN: This is 14 November.

COMMISSIONER WHITE: I beg your pardon.

MR CALLAGHAN: And I’m being shown March and April.

COMMISSIONER WHITE: I beg your pardon. It looks so similar.

MR CALLAGHAN: They do.

COMMISSIONER WHITE: In fact, I would have ventured to suggest they were the same document. I beg your pardon for suggesting that I knew better than you, Mr Callaghan.

MR CALLAGHAN: I’m deferring to Ms Bosnjak.

COMMISSIONER WHITE: So exhibit 295.


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EXHIBIT #295 INTENSIVE MANAGEMENT PLAN OF 14 NOVEMBER FOR DYLAN VOLLER

MR CALLAGHAN: And I tender also the transcript of the interview with the Children’s Commissioner which occurred on 6 October 2015.

COMMISSIONER WHITE: Exhibit 296.

EXHIBIT #296 TRANSCRIPT OF INTERVIEW WITH THE CHILDREN’S COMMISSIONER DATED 06/10/2015

MR CALLAGHAN: And I think that is all I have for the moment.

COMMISSIONER WHITE: Mr O’Brien, are you going to cross-examine Mr Clee now?

MR O’BRIEN: Yes, please, Commissioner.

COMMISSIONER WHITE: Thank you.

<CROSS-EXAMINATION BY MR O’BRIEN [10.06 am]

MR O’BRIEN: Mr Clee, my name is O’Brien. I appear for Mr Voller. In paragraph 5.2 of your statement in exhibit – which is now exhibited as 294, you’ve said that in October 2009 you obtained a permanent position as senior youth worker, the officer in charge at Alice Springs Aranda House; that’s right, isn’t it?---That’s correct.

Now, at the time of that – your appointment as the senior youth worker, who was the superintendent?---It was Peter Curwen-Walker.

Thank you. It wasn’t Mr Rainbird?---No.

Thank you. Now, you know that under the Youth Justice Act as it existed at that time – not much has changed, even to now, but at that time there were particular powers conferred upon the superintendent of a juvenile detention centre; correct?---That’s correct.

And in particular powers related to the use of force; correct?---That’s correct.

And powers also related to the use of isolation as a behavioural management tool; correct?---That’s correct.

.ROYAL COMMISSION 20.4.17 P-2573 B. CLEE XXN©Commonwealth of Australia MR O’BRIEN

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And those powers were designated under the Act then, and now, to the superintendent – to the superintendent of the juvenile detention centre; that’s correct, isn’t it?---That’s correct.

You were not the superintendent of the juvenile detention centre in Alice Springs or Aranda House at the time, were you not?---No.

Correct. Thank you. We saw, a moment ago, some video footage. You were depicted in that video footage; correct?---That’s correct.

It’s video footage of 9 December 2010 at Aranda House in Alice Springs; am I right?---Yes.

And you saw in that the youth worker Derek Tasker grab Mr Voller and put him on the mattress and ground stabilise him; correct?---Correct.

Now at paragraph 10, 11 and 17 you deal with this particular day, 9 December 2012. It came to be a matter of some controversy for some years later; am I right?---Yes, that’s correct.

And indeed we know that there were a series of criminal legal prosecutions and actions in relation to Mr Tasker’s involvement in that particular incident; correct?---Yep.

We also know that, on 9 December 2012, Mr Voller made a complaint against you – sorry, in 2010, on 9 December 2010, a complaint was made against you by Mr Voller; correct?---That’s correct.

And that complaint was made to the police, apparently; correct?---Yes.

At paragraph 10, 11 and 12 of your statement, and please have a look at it if you would like to?---If you can bring it up it would be - - -

Well, that’s not the right statement. That’s not the right statement, I’m afraid, operators. It’s the exhibit 294, which was tendered, and it’s a statement of Mr Clee in relation to Mr Voller dated 13 February 2017. How are we going with that? Have you got a copy of your statement?---No, I haven’t.

Your solicitor has got one?---10, 11 and 12.

Now, turn to page 2 and you will find paragraph 10. Thank you. We’ve got it on the screen now too:

I did learn of the fact that Mr Voller made a report of some description to the police but this was not until later and well after he was placed on 9 December for a threat of self-harm as I explain below.


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See that?---Yes.

And then you say:

I became aware of that in one or –

I think you mean to say “one or two days”; is that right?---“One or two ways.”

One or two ways. And then a – so what you’re talking about there is coming to learn of the report by Mr Voller to the police about you; correct?---Yep.

And you came to learn that he complained about you and your actions earlier that day; correct?---Yep.

Okay. And on – and paragraph 17 of this statement, if you can turn that up, please:

As I’ve said above, I did not know about the substance of the complaint, and was only told about the fact of a complaint the following day.

See that?---Yes, I do.

Is that your evidence?---Yes.

Now, Mr Voller has made the assertion that he feels that he was placed at risk that day because he made a complaint against you. Do you understand that allegation?---I understand the allegation, yeah.

And you say, “Well, that can’t be right because I didn’t learn about the complaint until the next day after he had been placed at risk.” Is that your evidence?---I learned about the complaint, I believe it was on the 10th. I think you – I was verbally told by Mr Voller and also from some shift notes from another Youth Justice Officer that was on that day.

10 February – the next day, the following day?---That’s right.

As you’ve said in paragraph 17?---Yeah.

Alright. Can the witness be shown BC1, please. Now, this is an incident report that you’ve annexed to your statement in relation to the events of 9 December 2010; correct?---That’s right.

We’re not sure who the author is, because this document’s not signed, and apart from the date, 10 February 2010, which I think you wrote - - -?---Yes, that’s my handwriting.


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It’s not dated by the author of the document, is it?---No. But I’ve dated it and uploaded it the next day. Well, it would have been written the day before. They were shift notes of the evening before.

Shift notes that you checked?---From the 9th.

Shift notes that you checked on the 10th?---Yes.

And that you were satisfied with, and uploaded onto the computer system?---Yes.

Okay. Go to the second page, please. We’re talking about 9 December 2012 and we there have a record of what’s apparently happened and we see:

2020, Dylan Voller requests the telephone and wants to call the police and press charges against OACB Clee.

You see that?---Yes, that’s right.

Continuing:

2035, 8.35 pm, Dylan Voller had his call to the police and starts peeling paint off the walls.

See that?---Yes, I do.

Five minutes later at 20 to 9 in the evening:

Dylan Voller makes threat to kill himself as heard by youth worker Tasker and youth workers Bryers. He is spoken to by youth worker Clee.

You see that?---Can yeah.

And then, 2050, you approach him and ask him to strip and put the risk gear on. You see that?---Yes.

And we can see what’s happened after that in the video footage that’s just been exhibited; correct?---Yes.

Mr Clee, you see, on 9 December 2010, you spoke to Dylan Voller after he made a threat to kill himself, according to those notes; correct?---Yes.

It was only five minutes earlier that he made a telephone call to the police?---Yes.

You see that? Are you saying you never came to be aware of that telephone call to the police about you?---No, I ..... the phone. There was other people that were working there at the time and I didn’t know at the time, no.


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You were the officer in charge of the centre?---That’s – that’s correct.

You had immediate – almost immediate dealing with the child, five minutes after he’s called the police, apparently to complain about your behaviour. That’s a matter of some significance, isn’t it? I mean, it’s serious if a child calls the police and complains about you; am I right?---Well, yeah.

And you’re the officer in charge of the detention centre; am I correct?---That’s right.

And within five minutes you’ve been told that he’s made a threat to kill himself; is that the case?---I may have very well been dealing with another detainee at the time. I don’t know.

It’s simply implausible, Mr Clee, that you weren’t notified or didn’t come to know of a complaint made against you that very evening, probably only minutes after it had been made to the police. I suggest that to you?---I didn’t know. Yeah. What more can I say?

..... it was just not true?---It is true. You weren’t there.

It is implausible, I’m suggesting to you, sir. You don’t accept that, do you?---No.

You don’t think that a – another youth worker would come to you, say, “Hey, Barrie, Dylan’s just called the police and complained about you, mate.” Wouldn’t that – isn’t that an ordinary normal thing for work colleagues to do amongst themselves?---No. Not in the correctional environment, it’s not, no.

It’s just so common that children would ring and make complaints against youth workers?---At times, yes.

Ring the police and say whatever, apparently, “I’ve been assaulted by Dylan Voller”?---Back in 2010 - - -

By Barrie Clee?---Back in 2010 there was no open line of communication after hours to the – either the Children’s Commissioner or the Ombudsman, and if a detainee wished to make a complaint about something, they were to be given access to the police.

The other thing that strikes me as peculiar about this, and I’m sure the Commissioners are struggling with it too: if he got out of the cell that he had been placed in, wasn’t that your decision to allow him access to a phone?---No, because it was a handheld phone and we used to put the phone in the cell with the detainees.

But wouldn’t the youth worker go, “Hey Barrie, Dylan wants to make a phone call.” Wouldn’t they have to ask your permission for that to occur?---No – no.


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He could just ring anyone he liked at any time he wanted; is that the case?---No, but - - -

No?---I didn’t have to give permission for a phone call to be made, no.

No. I suggest to you sir that you knew that Dylan Voller had that evening complained to police about your assaulting him?---I don’t recall it and I didn’t assault him.

And this document demonstrates it, sir.

COMMISSIONER WHITE: Could I ask you this, Mr Clee. At the top of the page at 2020 hours, it’s set out that:

Dylan Voller requested the telephone and wants to call the police and press charges against officer in charge B. Clee.

Would he, in fact, have had to express himself like that to the Youth Justice Officer who was on the floor at the time? He couldn’t have any anonymity about the phone call that he wanted to make and the complaint? In other words, he had to explain why he wanted the phone to call the police, and about what?---Yeah. He – at the – he would have been given the phone if it was – like, he wanted access to make a complaint. That’s all he would have had to have said, “I’d like to make a complaint to the police,” and our protocol there is to ring the police number for them and hand the phone over.

Okay. So that he must have told then the person – the author of this report – that he wanted to make the complaint about you, because it’s recorded in the .....?---Yeah, this is obviously written after this whole incident’s taken place, as well.

You would think so, yes?---Yeah.

But - - -?---It’s not written at the time, so I didn’t know at the time - - -

I’m really just trying to ascertain - - -?--- - - - exactly what was happening.

- - - the process. So the author would know the subject matter of the complaint, then?---He may not, no. The detainee would - - -

He – he knew it - - -?---Like, Mr Voller might have just asked for the phone to make a complaint to the police.

But he must have known that it was about you, because that’s what he has - - -?---That’s what he’s written after the fact, yeah.

So he either listened to the phone call?---No, we don’t listen to the phone calls.


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Okay. Then he - - -?---They’re not monitored.

Then must have been told?---Yeah.

That’s the only way it could have been reported?---That’s right.

And then I notice that 10 minutes later you speak to him, because he has threatened to kill himself. So you’re working in that vicinity. Is that – is that - - -?---Aranda House is a very small facility.

Yes. Yes, we visited it?---And there was – there’s only five rooms around a very small central courtyard.

That’s right?---Yeah.

And it would be almost impossible you would think, wouldn’t it, to have much of a conversation in that confined area without it being heard by anyone?---Not really. If you’re in one of the other rooms, you wouldn’t have been heard. If you’re in – actually inside a room.

So for you to have been there 10 minutes later after the phone call, would that just have been in the ordinary course of carrying out your duties in and out, or might someone have called you?---I may well have been in the office at the time. I just – I have no idea where I was – where I was positioned. Yeah. And I didn’t really – as I said, I didn’t really have any knowledge of this until – until I uploaded this incident on – on the 10th.

Right. Thank you. I understand your answer. I was just trying to understand better the system that operated when a detainee did want to make a complaint to police?---They don’t have to divulge the – the complaint itself, but they – all they have to do is just say they want to make a complaint and to who.

But clearly on this occasion he did divulge that?---Yes. Obviously, yeah.

Thanks, Mr O’Brien.

MR O’BRIEN: Thanks, Commissioner.

You’ve given evidence in proceedings connected with this matter in the Magistrates Court before Magistrate Trigg; correct?---Correct.

And you came to express the view that this document that we’re asking about was authored by a youth worker named [REDACTED] ?---I believe it could have been, yes.


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And he was obviously one of the officers who came to be mentioned as having heard – as having been in the dealings with Mr Voller through the course of 9 December 2010; correct?---Yes.

And the other officers there were Tasker and Bryers; correct?---Correct.

And that was the extent of those on duty that day; correct?---That would be correct, yes.

So - - -?---No, no, Donaldson as well.

So five of you?---Yeah, there was PO Donaldson was mentioned there too. I think Tasker and I turned up very much later in the day. I think – I usually work – I used to knock off about 5 o’clock, and I think I’ve actually been called back for this incident.

Yes. You’re certainly there at 20 to 9 of an evening?---Yeah. That’s right.

Now, you did, in any event, come to be aware of a complaint that had been made to police about your conduct on 9 December, whether it was on 9 December or 10 December, it doesn’t matter. You came to be aware later; correct?---Yes, I did.

You say on 10 December; correct?---Yes.

When you came to be aware of that complaint that had been made against you to the police, did you notify the – did you notify the Professional Standards Unit?---I’m not sure.

I suggest you did not; is that right? Is that a possibility? You don’t know?---It’s a possibility. Yeah.

Okay. I want to show you this document. It’s document CCM.0003.0001.4273. Thanks very much. If we go to the page previous to this, the earlier email on this chain, you’ll discover that Mr Voller had made a complaint to the Ombudsman’s office in relation to excessive lockdown that he – lockdown times at Aranda House, and he made that complaint on 14 December 2010. Do you see that?---Yes, I do.

Now, the – you recall your involvement in this?---No, I don’t actually.

Okay. Well, I will let you examine it. But that complaint was made by Mr Voller to the – to Ms Riedell apparently, it says acting or assisting resolution officer from the office of the Ombudsman. Do you see that?---Yeah, I do.

And the complaint was then relayed to Dave Ferguson, who at that stage was the director of Professional Standards; that’s right, isn’t it?---Yes, that’s right.


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And she asked him to respond to her in relation to the complaint made by Dylan Voller; right?---Yes.

Now, that complaint by Mr Voller was then relayed to you; correct?---I don’t know. Where was it?

Have a look at the top of that first page. It’s an email from Dave Ferguson to Kylie Riedell, it’s dated 15 December 2010?---Yeah.

And it contains an email from John Fattore; see that?---Yes, that’s right.

And Mr Fattore has given evidence that he spoke to you about this complaint. Do you understand that?---Yes, I do.

And that he told – he was told – he spoke to you about this incident and you gave him the information as set out in that email; do you see that?---Yes.

And at the last paragraph he says:

The high number of detainees currently housed at the centre does cause an increase in behavioural issues. And –

Do you remember telling Mr Fattore that?---No, I don’t. Not specifically, no.

Continuing:

And therefore increase in room time. However, claims are –

that would be Mr Voller’s claims –

are a complete exaggeration of the fact and in point Mr Voller refused to talk to a professional visit at 9.30 when woken this morning, because he was too tired.

Remember telling Mr - - -?---I must have relayed that across to Mr Fattore for him to write about it.

Yes. You told Mr Fattore that the complaint was complete exaggeration?---Reading it, I think they would be, because - - -

I’m not asking you about the veracity of it, the truth of it. That’s what you told Mr Fattore, who relayed it to Ferguson, who related it to the Ombudsman in relation to Mr Voller’s complaint; correct?---I’m assuming so, yeah.

Yes. Now, do you think that if the Professional Standards Unit had come to be aware that only less than a week earlier Mr Voller had made a complaint to the


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police about your conduct, they would be relying on what you say about a complaint that he made to the Ombudsman?

MR LEWIN: Commissioner, I object to that question. My name is Lewin; I appear for Mr Clee. It’s highly speculative to ask this witness what the Commissioner would have done or PSU would have done.

COMMISSIONER WHITE: Yes, thank you. I think the point’s well taken. Mr O’Brien, you might need to – if you want to ask a questions about this, couch it in different language. You can’t ask him to speculate on why people would have done anything. You can put something to him.

MR O’BRIEN: You didn’t – excuse me –you didn’t tell the PSU about the complaint that Dylan Voller had made; correct? About you?---Correct.

And you should have done that, according to policy and procedures; correct?---No, that’s incorrect. PSU weren’t my next line of command. The general manager was.

You didn’t tell John Fattore about the complaint that had been made against you by Mr Voller earlier on 9 December 2010, did you?---I’m not sure.

You didn’t? You didn’t, is that a possibility? You don’t know?---Yeah, I don’t know. It’s a possibility.

I’m suggesting you did not do that. You don’t know. In any event, we know that Mr Fattore came to you and said, “Look, we’ve had this complaint from Dylan Voller. What do you say about it?” And you say, “That’s an exaggeration.” That’s the situation, isn’t it?---Regarding this complaint?

Yes?---I’d say so, yes, reading it.

Yeah?---It is an exaggeration.

Well, you see, the point that I’m endeavouring to make with you, Mr Clee, is that you were by that stage aware of a complaint that had been made of a serious type to the police about your own behaviour, and you hadn’t disclosed it to anyone above you, and yet you think it appropriate to deal with Mr Voller’s complaint on a different issue, but still a complaint, and say, “He’s exaggerating.” You were hopelessly conflicted, weren’t you?---No, I don’t believe so.

You were conflicted because - - -?---They’re about two different issues. They’re completely different.

You’re conflicted because you thought, “He’s made a complaint about the police to me – about – to police to me, now he’s making this complaint. I’ll just tell them he’s exaggerating it”?---That’s not the case at all.


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On 9 December 2010, the – I withdraw that. If we can go to BC2, please. Now, BC number 2 is your evidence in the prosecution mounted against Mr Tasker. You see that?---Yes, I do.

Now, on – on page 42 of that evidence you gave – 42 and 43 – you gave evidence about how it came to be that Mr Voller was in this observation room within Aranda House. Do you recall giving evidence of that type in the Local Court before Magistrate Trigg?---Yes, I do.

Now you know, and knew at that time, that isolation for behavioural issues is something that you didn’t have power to do; correct? We covered that earlier?---This wasn’t isolation. They were just moved out of one room.

I will come to that. I will let you explain it, but just answer that question. You knew you didn’t have power to isolate a child, correct, for behavioural issues?---Not being the superintendent, no, but certain powers were delegated down from the superintendent.

We will come to that, but there’s no doubt that on this day he was placed in what was described as an observation room; correct?---It was a bedroom.

You say it was a bedroom? Okay. And you say that he was reassigned a new behavioural – a new bedroom because of his behavioural issues; correct?---They were just playing up when they were sharing a room, so they were – they were split up from each other.

He was reassigned a new bedroom?---Two kids. He was, yes.

And you rejected the proposition that this was an observation room, do you?---It was – the whole five rooms at Aranda House were bedrooms and they were used for – they were all camera-ed, and some of them were used for observation purposes, yes.

You see - - -?---They were bedrooms. In effect they were bedrooms. That’s all they were.

I want to suggest to you that in this instance, this room was an observation cell for the purposes of at risk, amongst other things. You reject that, do you?---What room number was it, actually?

It’s the room that we’ve just seen on the video footage on 9 December 2010?---That wasn’t - - -

It was room number - - -?---5, I think it was room 5. That was a designated at risk cell.

It was a designated at risk cell. You agree with that?---As well as room 1, where he came from.


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Right?---Because he was actually housed with another detainee in room 1, which was also a designated at risk cell.

You remember - - -?---A designated observation as well.

Okay. Now, you’re aware that in the same proceedings Commissioner Middlebrook gave evidence for the defence?---Yes.

And he was cross-examined by the prosecutor in relation to this issue. Were you aware of that?---I – I’m aware of the Commissioner being there, yes.

Were you present when he gave evidence?---No.

Have you had a chance to look at his evidence?---No.

I want you to assume that in the same proceedings, Commissioner Middlebrook gave evidence for the defendant and he says in cross-examination that that cell was a separation cell?---It had been used for a separation cell before, yes.

That it was used for isolating detainees. That’s what Commissioner Middlebrook said in the same proceedings?---Okay. Yeah.

Would you assume that?---But so did the room that he was moved out of which was room 1. That was also used for - - -

Within which he was housed with another detainee; correct?---Yeah. That’s right.

But this room, as was that one, was an observation cell for the purposes of isolating children, at risk or otherwise, if necessary; correct?---Correct.

And Commissioner Middlebrook gave that evidence, I’m asking you to assume, in those proceedings. You accept that?---I accept that.

Now, that would follow, wouldn’t it – if Mr Middlebrook’s correct – that your placing him in that room on his own prior to him threatening to kill himself was unlawful, because you didn’t have power to isolate him in those circumstances, did you?---I didn’t isolate him. He wasn’t on an isolation placement.

You just put him in a room by himself, which was an isolation room, and you didn’t isolate him. What sort of technicality is that?---It was also a bedroom.

Right?---And being that all the other bedrooms were full at the time, there was nowhere else to put him but a normal bedroom. It was being used as a bedroom.

By himself; correct?---As were all the other detainees.


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In isolation; correct?---Not in isolation. He wasn’t on an isolation placement. There’s two different things.

.....?---Just being on your – just being - - -

COMMISSIONER WHITE: Let him finish the answer.

THE WITNESS: Let’s just assume being on your own in a room is not isolation.

MR O’BRIEN: No?---Because it happens at Don Dale right now in Darwin where there is 50 detainees in rooms on their own. They are not isolated.

They’re not in isolation rooms, observation cells, are they?---They have been, yes, some – well, actually yes, they are.

And perhaps they’re there because the superintendent says, “You’re in there”?---No.

“You’re isolated from other detainees”?---They’re for accommodation reasons, yeah.

Children should not be - - -?---Detainees generally do not share rooms. We actually try and get detainees to share rooms with – with, like, direct family members and things like that because it actually assists in their – in their incarceration when there – when the – when two, like, two siblings are together or very close cousins, and these two detainees that were in that room that night were not direct siblings, they weren’t cousins, they weren’t anything. They were just good mates.

I don’t want to argue this any longer?---And they were placed – they were placed in that room, right, together, initially because they were good mates.

I want to suggest to you, Mr Clee, the reason you’re being defensive about this, and the reason you gave that evidence at that setting of proceedings was because you knew you were acting outside the law when you placed him in that room that night; correct?---No, I wasn’t. That is incorrect.

COMMISSIONER WHITE: Mr Clee, can I just clarify your evidence for myself, if I may?---Yes.

I thought you said a few sentences earlier that all of those rooms had cameras in them?---At Aranda House they did, yes.

At Aranda House. So is it the case that the physical room may, in fact, be used for a number of purposes?---That’s correct. They’re used for three purposes. They’re used for isolation placements; they’re used for at risk placements because they were the designated at risk rooms; and they’re also used for general housing.

Thank you. I thought that was your evidence. Thank you.


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MR O’BRIEN: I just want to pick up on some of those questions by the Commissioner. You’ve seen that room in the video footage and you’re familiar with it; correct?---I’m – that’s correct, yes.

It had a foam mattress on the floor in it; correct?---That’s correct.

It had nothing else, not one single other amenity apart from a toilet; correct?---That’s correct.

That’s a bedroom, is it?---Well, the other five are exactly the same.

I suggest to you that when Mr Middlebrook gave evidence in these proceedings – that will be tendered later on, I’m told – that what he said is quite different to what you’re saying now?---All right.

Thank you. At paragraph 18 of your statement, Mr Clee, you’ve said that you placed – paragraph 18, you placed Mr Voller at risk that night. Do you see that?---Yes, I did.

Now, you accept the emergency – the emergency management procedures provide that, I quote:

Youth workers should ask the detainee if they require anything and spend as much time as possible comforting the detainee.

You’re aware of that?---That’s correct.

Thank you?---If it’s safe to do so.

We’ve seen some of the – we’ve seen some of the footage that has been exhibited in relation to what happened when Mr Voller was put at risk, haven’t we?---Yes.

But we haven’t seen all of it, have we? It starts much earlier in time, doesn’t it?---It does, yes.

Yes. In fact, it starts at 8.43 pm when you enter and you’re holding the gown, the at risk gown; correct?---Yeah.

And you then have a conversation for him which is recorded at about 20 seconds in length with the gown in your hand; correct?---Correct.

And the conversation obviously didn’t go as you’d expected; correct? He didn’t want to put the gown on?---No.

And you leave the room holding the gown, don’t you?---No. Did I – I think I placed the gown on the ground before I left the room.


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Let’s – we have to have a look at that footage to be fair to you, then?---Did I or didn’t I? I can’t remember whether I put that down.

Well, I’m suggesting to you – but no, you should have a look at it. Because if you’re not sure, I want you to – I want you to see it?---All right.

Thank you. So it’s the earlier placement. It starts at 8.43 and I think it’s time stamped on the CCTV footage.

COMMISSIONER WHITE: Is that a sufficient identification for you?

MR O’BRIEN: I haven’t had much luck with this video footage so far, Commissioner. I’m crossing my fingers and toes at this present moment.

COMMISSIONER WHITE: I think there’s probably a better way to achieve success than crossing fingers and toes.

MR O’BRIEN: Well, plenty of notice is the other thing I’ve done. There we go. Terrific. So we we’ve got there – we will go back to 20.43, when Mr Clee enters the room, please?---I’ve got it. Yeah.

I want to go when you’re into the room and have the conversation. Go back. Is that the start, is it? Okay. All right. So let’s see this conversation. Play, please.

VIDEO SHOWN

MR O’BRIEN: And you’ve left?---Yeah.

You see you’ve left with the gown?---Yeah.

Mr Voller runs over to the door in a spitting gesture?---Yes.

You said he did spit; correct?---Yes.

Although it didn’t hit you; correct?---I believe so, yes.

Right. Now, you’ve left with the gown. You didn’t leave the gown in the room should he change his mind; correct?---That’s correct.

And I suggest to you 20 minutes is hardly long enough to determine – to have complied with that emergency procedure provision that you’ve agreed was in place. You agree with that?---Depending – as I said, depending on the hostility of the situation and depending on – on whether it was possible to do so and safe to do so.


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You’ve decided that that would be the conversation in relation to the gown, you’ve left. He’s threatened to kill himself, you’ve gone in with the gown, you’ve had a conversation for about 20 seconds?---He may have also threatened to spit on me. That’s why I exited. I don’t know. I don’t recall that. It was seven years ago.

And you didn’t leave the gown on him?---No, I didn’t leave the gown on the ground.

You should have done that, shouldn’t you?---I thought I did, but no, I didn’t. Yes, I probably should have done that because it would have given Dylan the opportunity to change himself if he would have.

And then from that point on, when you’ve left you go out and speak to Tasker and Briers in relation to going in, the ground stabilising and removing his clothes, don’t you?---That’s correct.

And at 20.51 the video is recorded, and we’ve played it, that’s the moment when Mr Tasker enters first of all and grabs Mr Voller; correct?---Correct.

So you’ve had a 20 second conversation, then eight minutes elapse, and you go in and ground stabilise him and remove his clothes. That’s the sequence of events, isn’t it?---Yes.

How is that giving the child as much comfort as possible to deal with the fact that he’s just threatened to kill himself, in a humane way? How is that possibly - - -?---How is it possible to go back in there without being assaulted and do exactly what you want to do, and talk to the child and try – and I mean, every opportunity was given to Dylan and every effort was made by even talking to him through the window.

Yeah. Alright. Well, I suggest there wasn’t even a – you didn’t even talk to him through the window, you just simply made that decision to take his clothes .....?---Well, what – what do you think we did for eight minutes?

Yes. Talked amongst yourselves to determining how to ground stabilise him?---Eight minutes.

Yes?--- Eight minutes is a long time.

You see, you didn’t give any evidence in the Trigg hearing about having a chat with him through the window or anyone else doing that?---I recall the nurse talking to him through the window.

Yeah. The nurse came after he had been placed at risk, after this had happened, sir?---That’s right, yeah.

So I’m talking about that eight minute period. The nurse didn’t turn up in that eight minute period, did she?---No.


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She turned up an hour later, or 40 minutes later?---But all I’m saying is that that’s what – we have done that in the past, talked to people through the window, and it could have happened at that point in time. I don’t know whether it did, but it could have happened.

Now, when Mr Clee was stripped naked in that cell in the manner that we’ve seen depicted - - -?---I wasn’t stripped naked. You just said “Mr Clee”.

I beg your pardon. I beg your pardon. When Mr Voller was stripped naked in that cell that day there was a woman at the door holding the door open and moving the material?---No.

I withdraw that. I withdraw that?---No, not at all. There was no female staff rostered on that day.

You’re right. Sorry, I withdraw that. Mistaken. In cross-examination by the learned – I think it was, sorry, by Mr Tasker’s solicitor during the proceedings in Police v Tasker you were taken to the issue of whether there had been any injury occasioned to Mr Voller. Do you remember that?---Not specifically, no.

I take you to page 57(3) of BC2. Now, there you can see that, 57 at about point 3, you say:

Do you recall observing Master Voller appeared to act in the observation following the ground stabilisation ..... at risk garments.

You say:

Yes, I do.

See that?---Yes.

And obviously your job was to observe him on the camera throughout this period after he had been placed at risk; correct?---Correct.

And so you made sure you did that, did you?---It would have been me or someone else.

Okay. Did you – and you said that he was – did – that – you said:

Did he exhibit any obvious injuries to you?

And you say, “No.” See that?---Yes, I see that.

I want to suggest to you that if you viewed that footage through and beyond the time that’s apparently been exhibited, but we will make sure it is exhibited, Mr Voller can


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be seen holding on to his jaw. Did you happen to notice that?---I did notice it in the footage, yes.

But you say you never noticed it at the time?---I didn’t – well, I didn’t at the time. It didn’t become obvious to me, no.

You now know that, after this had happened, Mr Voller was holding his jaw in the cell and holding it as though he looked like he might have been in pain or discomfort in that area; correct?---That’s right because, yeah, I saw it on the footage.

And you said – after that, you said:

He was seen by a registered nurse at the time.

See that?---Yes, that’s right.

Okay. Well, that nurse was [REDACTED]; correct?---Correct.

And we’ve got some – a document in relation to that. It’s an FMH document which we’ve provided to the Commission, and given some notice that we would like it to be shown. I want to show it to you. It will be a document that you’re familiar with. It’s a document that suggests she saw him, she says at 9.35 am, but that can’t be right, can it?---No.

It was 9.35 pm?---Pm.

And when she saw him she said he complained of two things, he had been assaulted by staff; correct?---I don’t recall the documents specifically, but - - -

Well, we will see it hopefully on the screen shortly. She said – I’m just aware of the time, you see, Mr – there it is there. Go down, please. No, that’s not it. That is not it. She said that it showed – that he complained of being assaulted by the staff and had a sore jaw as a result of it. Do you remember that?---Vaguely, yes, I do.

So when you go on – when you went on to give evidence about this incident at page 57 before Magistrate Trigg you said:

And did she make any comment or report to you any injury apparent or observed by her or Master Voller?

You said:

No, she didn’t.

Is that the case?---Well, that – that must be the case, yeah.


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So - - -?---Because she didn’t report, as far as I’m aware, she didn’t report anything to me that night.

You see there are notes taken by her at the time in DCS records to say that she looked through the window. She didn’t go in, apparently?---No.

She looked through the window, asked him how he’s going. He said, “I’ve got a sore jaw. They just assaulted me.” That’s the effect of the evidence, of her statement on the day, the contemporaneous note. Do you see that?---Yep.

You’ve accepted that that’s what you’ve said in notes .....?---I accept that, yes.

You’re suggesting that she never came and told you that?---No.

Remiss of her, is it?---You’ll have to ask her.

Why was it that – I mean, the nurse coming in after a child’s threatened to kill themselves, has complained of an assault and discomfort, pain, why is it that they wouldn’t be allowed into the room?---[REDACTED], I remember at the time specifically said she would not go into the room because of Dylan’s aggressive state.

Was that something that you urged her not to do?---No, it wasn’t.

Usually in those circumstances, though, [REDACTED] would carry out a physical inspection; correct?---No.

She certainly didn’t on this occasion, did she?---No.

Mr – there we have the note. I will ask that counsel assisting exhibit it, but you can see the third box down, print practitioner’s name, [REDACTED] December 2010, 0935 hours, and we’ve – that would be 9.30 in the morning but, of course, that’s wrong, isn’t it?---Could you just scroll down – could you scroll up and see who put the first notes in.

Certainly?---On that day, please. So that was [REDACTED] on the 7th, yeah, 7th, 7th, 9th, and scroll up again – just scroll down again, sorry. Scroll up, please. I actually think this has been written after, because [REDACTED] has made an entry on the 7th of – no, sorry, the 7th. Yeah, that’s right. 9th.

I suggest these are contemporaneous notes that she’s written up in the at risk file?---Yeah – yeah – yeah, it is.

In relation to the incident?---And it’s 09.35.

She has just got the time wrong?---That’s right. Yeah. It should have been.


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And she said she viewed him through the observation window, accusing staff of hurting his jaw?---Hurting his jaw.

Verbally aggressive, agitated, pacing, etcetera, you see that?---“Appears to be influenced by another detainee who was housed opposite.”

No verbal threat of self-harm?---No. But – yeah, a threat of - - -

Etcetera. Not really concerned about that?--- - - - self-harm made to me.

But you can see that she has recorded an injury to his jaw and an accused – accusation of staff hurting him. You see that?---Yes, I do see that.

I want to move on now.

MR CALLAGHAN: I’ll tender that.

COMMISSIONER WHITE: Yes. Thank you. How will it be described, Mr O’Brien?

MR O’BRIEN: We will describe it as it’s on the top of the page FMH CMS/FMHS at risk notes 7 December to 9 December 2010.

COMMISSIONER WHITE: Yes. Thanks, Mr O’Brien.


COMMISSIONER WHITE: Those at risk notes, particularly the entry of Nurse Coyne, is exhibit 297.

EXHIBIT #297 FMH CMS/FMHS AT RISK NOTES 7 DECEMBER TO 9 DECEMBER 2010

COMMISSIONER WHITE: We do need to break at 11 o’clock, so that the video equipment can be tested. I hope you will be finished by then.

MR O’BRIEN: I’m really not sure that I will, I’m afraid, Commissioner.

COMMISSIONER WHITE: Well, it will be lost otherwise, because we’re struggling. Have we got another witness before Mr Voller comes on at 12?

MR CALLAGHAN: Yes. Although they will be relatively brief. I think – I like to think if, Commissioner, you’re anticipating adjourning at 11 for, say, 20 minutes, is that the proposal?


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COMMISSIONER WHITE: Yes. Well, it’s to test the equipment - - -

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: - - - particularly. That’s why we’re going to adjourn then, so it can be done.

MR CALLAGHAN: Yes. And I would be optimistic we could get through – even if Mr O’Brien is allowed a very little more time, I would be optimistic we could get through two witnesses before 12.

COMMISSIONER WHITE: Can you keep that in mind.

MR O’BRIEN: I certainly – I think on every occasion I’ve managed to get within the time frame. This one I haven’t. I apologise.

COMMISSIONER WHITE: I’m just going to ask if it has to be at 11. How much longer do you think you will be with Mr Clee?

MR O’BRIEN: 15 minutes.

COMMISSIONER WHITE: Alright. Well, we will stop in a minute. Just go for a few more minutes with Mr Clee. But bear in mind that we’ve got two more witnesses before Mr Voller comes on. Thank you.

MR O’BRIEN: You’re – in this – in this procedure, of course, the – the detainees’ clothes are removed and you say that was in accordance with the directives and management procedures; correct?---No. That was in – that was in accordance with the at risk procedure manual.

Okay. I want to suggest to you that there was some conflict in the state of the at risk procedure at the time. Do you know what I’m talking about when I say that?---I believe there was a conflict between our procedure manual and the at risk manual, but under Commissioner’s directive 3.6.1, I think it was, they rescinded the procedure manual to – and the overarching policy was the at risk procedure manual.

Right. At page 31.9 of the Children’s Commissioner on the report on – that’s in February of 2015, without necessarily needing to show you, because I’m not criticising you for it, the Children’s Commissioner says that the Aranda House policies and procedures prescribed that when a child was at risk they would have all clothing removed except for their under – underpants?---That’s correct.

Yeah. So there was as I say, this conflict of the position between where you took all the clothes off or whether they were allowed to remain with undergarments?---There was no conflict really, as far as I was concerned because I had been – I had been working to the Don Dale policy manual which instructed exactly the same thing as


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the at risk procedure manual and it was just – I don’t know why that was even put into the policy manual of the Aranda House.

Well, for the assistance of the Royal Commission we’ve attempted ourselves and have asked the Royal Commission to retrieve a copy of this policy and procedure manual which is referred to in the Children’s Commissioner’s report at 31 – on page 31 point – about point 9, and we have been collectively unable to obtain that particular document. I want to talk to you about the documentation that was - - -

COMMISSIONER WHITE: Maybe that’s a good point to stop then - - -

MR O’BRIEN: Very well.

COMMISSIONER WHITE: - - - if you’re going on to a new topic, but you will be careful, won’t you, otherwise you might lose your opportunities. Alright. Thank you. Could we adjourn for 20 minutes, please.

ADJOURNED [11.02 am]

RESUMED [11.25 am]

MR CALLAGHAN: Just before Mr O’Brien resumes, Commissioners, some written submissions have been prepared in response to the submissions made by the Solicitor-General yesterday morning.


MR CALLAGHAN: I hand those up. I’m not sure – I don’t think we’ll actually tendering submissions, or – if we are, it can be.

COMMISSIONER WHITE: You can, if you want to put them in there. The transcript of yesterday is available, which contains the Solicitor-General’s submissions.

MR CALLAGHAN: Yes. I’m happy for it to be available, and an electronic copy will be available to all of the parties forthwith, I’m instructed.

COMMISSIONER WHITE: You want it tendered as an exhibit?

MR CALLAGHAN: Yes, I will tender it.

COMMISSIONER WHITE: I think it might be easier to locate it, if it becomes important. Thank you. So, Mr Callaghan, that’s exhibit 298.


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EXHIBIT #298 SUBMISSIONS IN RESPONSE TO SUBMISSIONS OF SOLICITOR-GENERAL

MS BROWNHILL: Commissioners, I haven’t been provided or seen those submissions and - - -

COMMISSIONER WHITE: I’m sure Mr Callaghan will give you a copy, Ms Brownhill.

MR CALLAGHAN: I have a limited number of hardcopies here. I’m happy to make them available but, as I just said, an electronic copy will be available forthwith.

MS BROWNHILL: Well, my difficulty of course is that I’m due to examine Mr Voller in 35 minutes and I don’t know whether these submissions contain anything related to or responsive to what I said yesterday about the nature and scope of that cross-examination, so we may be at a disadvantage. To that extent, I don’t – I just don’t know.

COMMISSIONER WHITE: Not terrifically long. If you’ve got a disadvantage, let me know after you’ve had a look at it.

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: Thanks, Mr Clee. Thank you. If you just go back into the witness box. Thanks.

MR O’BRIEN: Mr Clee, you at some stage became aware that both the police and the Children’s Commissioner were looking for the CCTV footage from 9 December 2010; correct?---That’s correct.

And it turned out that getting their hands on the CCTV footage was quite a lengthy process; am I right?---That’s correct.

Yes. And you were asked to provide some statement or some sort of information to the Children’s Commissioner about what had happened on your account to the CCTV footage; correct?---Correct.

And you provided an affidavit to the Children’s Commissioner; am I right?---That’s correct.

Okay. I want that affidavit to be shown to you. I’ve got a hard copy here, so that you can actually have a look at it. I will ask that you be shown that. It’s on the screen, though, as well. Now, you say in that affidavit, at about point 7 of the way down the page, that you gave the CCTV footage to Detectives Cox and Detective Jeremiah who were investigating the matter; correct?---Yeah, that’s correct.


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You said, quote:

At some time on a later date the footage was turned over to the NT police force members, Detective Cox and Detective Wade Jeremiah. I’m not sure of the exact date and which detective I handed the CCTV footage to.

See that?---That’s correct.

Now, you’re aware that both Detectives Cox and Jeremiah denied ever having received the CCTV footage from you?---That’s correct.

And in the Children’s Commissioner’s report the learned Commissioner describes a passage of time over about eight months that the police sought to get the CCTV footage from you; correct?---Correct.

There were eight – indeed eight attempts to get the footage from you; correct?---If that – yes, correct, yes.

And on page 26 of the Children’s Commissioner’s report, dated 2 February 2014, the Children’s Commissioner goes through the efforts that were made according to police records for them to get the report. You accept that?---I accept that.

Including asking for you – for you, and you said that someone needed to download the footage, and that was presenting difficulties; correct?---It was, yes.

And you’ve said on another occasion later on that they attended again but the download still hadn’t occurred; correct?---Correct.

That they attended again to collect the footage and spoke to you on a third occasion, but they were unable to get it; correct?---Correct.

And they spoke to you on a fourth occasion and at that stage you said, “If you want it you’ll need a warrant”; correct?---Correct.

Who informed you that they, the police, needed a warrant to obtain CCTV footage from the Aranda House Detention Centre?---I think it was on advice from Professional Standards.

Right. You weren’t aware of a memorandum of understanding between police and corrective services in relation to the production of footage in the event of a police prosecution?---No, I wasn’t.

In any event, you see, the police were asked by the Children’s Commissioner report to give – to give an account as to the times and dates that they sought the footage from you and were unsuccessful in doing so. You understand that, don’t you?---I understand that, yes.


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And the Children’s Commissioner said in balancing what the police had told her, what the police record said and what your affidavit records, and made a finding about it, remember?---Yes, I do.

And she said, and I quote:

I consider it likely that OICD –

OIC officer in charge D, and that’s you –

affidavit in which he asserted giving the CCTV footage to police was false.

Do you know that’s a finding by the Children’s Commissioner in relation to you?---That’s an assumption, not a finding.

Accordingly, she went on to say you may have misled her about a material particular, the location of CCTV footage, contrary to section 39 of the Children’s Commissioner Act and may have obstructed the conduct of her investigation contrary to section 42 of the Act. That’s what she found. Do you understand that?---Correct.

And she also goes on to say that you may have contravened section 118 of the Criminal Code by providing a false statement under oath. Do you understand she made that finding?---Correct.

I suggest to you that that’s actually what you did: you provided a false statement because you were attempting to cover up the events of 9 December 2010. What do you say to that?---That’s – I deny that. I didn’t - - -

You - - -?---I didn’t try and cover anything up. If you give me a chance to explain, I will. There was a – it was unacceptable, I know that. We had – there was, at Aranda House when I was the manager initially, there was no internal IT support and the way the CCTV was set up, it was on a standalone DVR and I got a – a fellow in from Ronin Security who actually installed the CCTV initially to – to – to provide it as evidence. I saved the footage onto the – the asset desktop and – otherwise it would have been looped – the footage itself would have been looped over and it would – we would have lost the recording completely.

COMMISSIONER WHITE: And how many days does it run for before it loops over, Mr Clee?---It only runs for 42 – it ran, at that stage with that capacity, it was 42 days, I believe. So I had downloaded the footage onto the asset in the offers, which is the desktop computer within that 42 day period, otherwise it wouldn’t have been in existence today. I had a lot of trouble – there was a really big formatting issue getting it from the asset to – to being able to be burnt onto a disc and then further, when it was able to be burnt onto a disc, there was – a lot of people actually had trouble actually viewing it off of a disc, because the file just would not open.


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MR O’BRIEN: Okay. You see the falsehood in the affidavit was that you did not provide it to the police?---I - - -

They said you didn’t provide it?---I did provide it to the police.

You swore in an affidavit you did?---At some time, I don’t know when, but the police did come in and pick up that footage and they also came in and viewed it. They viewed the footage off of the asset in the office with me.

I suggest to you, sir, that what you’re saying is that the police in their sworn statements to the Children’s Commissioner were not correct. They were wrong. Is that what you’re saying?---I don’t know why.

.....?---It wasn’t mentioned that they actually viewed the footage. They viewed the footage live on the asset in the office. I actually - - -

What they - - -

COMMISSIONER WHITE: Just let Mr Clee finish what he has to say.

MR O’BRIEN: Certainly.

COMMISSIONER WHITE: Yes, Mr Clee?---I wasn’t there on my own at the time. I believe Mr Tasker was in the office at the same time that they came in and picked up – that they came in, and they might not have picked up the footage at that point in time but they definitely viewed the footage on the computer. I remember one of the responses that the police officers made to me was, “There was no evidence of an assault here, but you should consider charging on Mr Voller because he spat at you.” And it was clearly seen that he did that on the CCTV.

MR O’BRIEN: That’s what the police said when they viewed it, did they?---Yes.

You see, the other critical feature raised by the Children’s Commissioner is that they never received any footage in relation to the earlier interaction that you had with Mr Voller giving rise to a police complaint by him. You understand that?---There was never any request of footage.

There was request by the Children’s Commissioner for footage involving your earlier placement in the cell which was never provided; correct?---That was in - - -

MR LEWIN: I ask to identify where that request is made by the Children’s Commissioner.

THE WITNESS: And was it within that 42 day period where it would have looped over?

MR O’BRIEN: Let me deal with your counsel’s objection.


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COMMISSIONER WHITE: Just a second, Mr Clee.

MR O’BRIEN: Page 28, at about the third paragraph:

I accept the police evidence, supported by their records that the CCTV footage of 9 December 2010 concerning incidents 2 and 3 was not provided, in spite of repeated requests for it.

You see that?

COMMISSIONER WHITE: It’s not on the screen yet. You can’t see it.

THE WITNESS: No, it’s not. But I accept that.

MR O’BRIEN: I read from it?---Yeah, I accept that.

So they asked you for footage in relation to what was alleged against you earlier. They’ve asked you for footage in relation to what’s alleged against Tasker later. You provided them with nothing?---I did - - -

That’s the assertion?---Well, that’s – that might be the assertion, but at the end of the day the footage was actually – if I was attempting to cover anything up, can I ask you why I wouldn’t have just let it loop over and disappear after 42 days?

I’m sure these Commissioners have no interest in what I think about that?---I saved – I saved the footage to the desktop to stop that, to prevent that from happening, basically.

I want to show you some other footage, this time from 16 March 2012, ABC.0001.0001.0256. You’ve seen this footage?---Yes, I have.

Okay. We will play it, please. I’m not going to play all of it, because it goes for quite a considerable time. That’s Dylan Voller being carried into the cell, taken into the cell, you agree?---Yes, that’s right.

VIDEO SHOWN

MR O’BRIEN: Now, that’s you on top of Mr Voller on the top screen there, isn’t it?---That’s right.

VIDEO SHOWN


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MR O’BRIEN: It appears that you’ve got your leg, or one of your knees, or part of your leg on top of Mr Voller holding him down, restraining him; correct?---That’s correct.

And the cell is being removed of all articles; correct?---Correct.

VIDEO SHOWN

MR O’BRIEN: Now, you did an IOMS – we will stop it there. You did an IOMS report in relation to this incident; do you recall?---Yes, I did.

And in that IOMS report, if I need to show you I can, but you might accept simply that you held him down on the floor for approximately 4 minutes in that type of position; is that correct?---Yes.

And you gave evidence in relation to forms of restraint that you had learned and exercised to this Commission in March, did you not?---Yes.

And Ms Lee asked you questions about – Ms Lee, who appeared for some of the other detainees who’ve complained about their treatment, gave evidence – asked you questions, and you gave evidence, on page 1155 of the transcript. At line 10 you were asked:

Now, given your understanding of the windows safety, given your experience in correctional centres both in Darwin and Alice Springs, in your opinion it would not be appropriate to restrain a young person with a knee and weight on that knee on the centre of the back if they were against a floor or other hard surface.

And you say it would – “It wouldn’t.”

You remember giving that evidence?---That’s correct, yes.

I’m suggesting to you that what that video depicts there and what it depicted – depicts throughout the course of that holding down over that 4 minute period is exactly what you’ve said you wouldn’t do?---Looking at that video, I actually think that my knees were actually – my knee was out off to – I couldn’t see my right knee, but my left knee was out off to the left-hand side and it was nowhere near his – his back. And later on in the video, where I was actually – I had the full weight of my whole body on my two knees on – on the floor.

And I would suggest that later on in that same video, as you’re familiar with it, without showing it to you, you have your whole weight, in fact, on the window - - -?---No, I don’t.


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- - - of safety zone?---I don’t. I had my weight on my knees on the floor. My knees are on the floor.

Very well. That video will be exhibited and the Commissioners can make a determination about that if necessary?---Okay. Thank you.

MR CALLAGHAN: I tender the video of 22 March 2012.


EXHIBIT #299 ABC.0001.0001.0256

MR O’BRIEN: Commissioners, that video goes for a lengthy period of time, and Mr Clee does change position as he has indicated in evidence. I haven’t played the entire video because of the constraints on my time in cross-examining this witness.

COMMISSIONER WHITE: We will make sure we see it.

MR O’BRIEN: Thank you.

Mr De Souza was asked about this particular restraint and expressed some dissatisfaction about it. Do you remember that?---No, I don’t.

You – I’m not going to take you to the transcript but, in fact, he said that he was concerned that you had, in fact, placed your body upon the window of safety of this child?---The window of safety is from the – from the waist up to the shoulders.

Transcript reference for that is 1667.10 to 20 of the transcript for the Commissioners’ information?---Window of safety, as I believe, isn’t from the buttocks down across the legs.

Now, in relation to the – I want to suggest one last thing in the – because of the time constraints that I’m limited by. In relation to the Tasker – Police v Tasker prosecution, we know that there were considerable difficulties in obtaining the CCTV footage by police as requested by you; correct?---Correct.

And also we know in – in Magistrate Trigg’s judgment, which has been annexed to Derek Tasker’s at DT2, without taking you through it chapter and verse, there were very significant problems with the documentation by the centre which were provided on subpoena in those proceedings. Do you agree with that?---Which documentation are you referring to?

At risk – the at risk documentation and the documentation by the centre recording what transpired on 9 December 2010?---All at risk documentation is stored in the


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detainee files. There shouldn’t have been any – any – no. There shouldn’t have been any problem at all.

Mr Clee, the transcript of Magistrate Trigg’s judgment is – is an exhibit in these proceedings and he was extremely critical of the material that had been presented to him in relation to the events that they transpired on 9 December 2010. You weren’t aware of that?---I wasn’t aware of that, no.

And one of the – and, in fact, he determined that the material that he received in relation to the documentation as to what had happened was so woefully inaccurate that he determined he could not give it any weight. Do you understand that?---That documentation has already been presented this morning in Jan Coyne’s notes, as Jan Coyne’s notes, and that is part of that at risk documentation.

And finally, Mr Clee, I want to suggest to you that your role in the prosecution case against Mr Tasker, was one of obfuscation and an attempt to cover up what had happened, both in terms of the complaint against you and the complaint against Tasker. What do you say?---No, that’s incorrect.

Nothing further.

COMMISSIONER WHITE: Thank you, Mr O’Brien.

MR CALLAGHAN: I understand the solicitor is seeking leave to ask some very brief questions of Mr Clee.

MS BROWNHILL: Extremely briefly, in relation to the intensive management plan that Mr Clee was taken to.

COMMISSIONER WHITE: Yes, thank you, Ms Brownhill.

Mr Brownhill is going to ask you some questions on behalf of the Northern Territory government, Mr Clee?---Yes.

<CROSS-EXAMINATION BY MS BROWNHILL [11.47 am]

MS BROWNHILL: Can exhibit 295 be placed on the screen, please, and page 3 of that document. Mr Clee, you will recall some questions by my learned friend Mr Callaghan about the intensive management plan for Mr Voller?---Yes, that’s right.

And on page 3, which my learned friend took you to, about halfway down the page he referred to the second level of behaviour identified as escalated or high level inappropriate behaviour. And then at the bottom of that page it says:

If Dylan Voller displays any escalated or high level inappropriate behaviour.

.ROYAL COMMISSION 20.4.17 P-2602 B. CLEE XXN©Commonwealth of Australia MS BROWNHILL

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What the document says is:

Youth workers are to use a safety response strategy which includes –

and then there’s a series of dot points. Do you see that?---Yes, that’s right.

And I take it from those words that what’s intended is that the dot points are a series of options which might be adopted by workers according to the circumstances of the particular behaviour?---That’s correct. There’s a degree of flexibility in them and, I mean, you can see that the very last dot point on that page is the detainee being escorted to – to a cell by – for a minimum period of 12 hours. I mean, that would be, obviously, a last resort.

I see?---Probably following either a staff assault or something like that.

So as a matter of practice, then, consistently with what the document says, it’s not the case that if, for example, Mr Voller was in a negative mood for a period of time that he would automatically then be placed in his cell for 12 hours?---No, that wouldn’t happen.

I see. Thank you.

<RE-EXAMINATION BY MR CALLAGHAN [11.49 am]

MR CALLAGHAN: But according to the plan it could happen if someone thought it was necessary?---It could happen if it was deemed necessary and it would have been – the response would have come from the most senior person on shift.

At their discretion?---At their discretion, yes.

Thank you. I have nothing further. May Mr Clee be excused.

COMMISSIONER WHITE: Yes. Thank you - - -

MR LEWIN: I’ve got a few questions.

COMMISSIONER WHITE: I’m sorry. I’m sorry, Mr Lewin, I should have had an eye out for you .....

<RE-EXAMINATION BY MR LEWIN [11.50 am]

MR LEWIN: Yes. I will be brief. I’m conscious of the time.

.ROYAL COMMISSION 20.4.17 P-2603 B. CLEE RXN©Commonwealth of Australia MR LEWIN

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In relation to the IMP that was developed there were multiple IMPs that were developed for Dylan Voller; is that right?---That’s correct, yes.

And they were all signed off on by the general manager; that’s the protocol?---That’s correct. And the senior case worker.

Okay. And wow were they provided to you, those IMPs?---Via email.

Okay. And who specifically would traditionally email them to you?---Senior case worker, usually.

And insofar as identifying how best to implement those IMPs, so interpretation of – for example, you’re asking questions about identifying negative moods, things of that kind, were you given any guidance whatsoever about how to implement the IMPs?---No, none.

Okay. So it was left to your device in that regard?---That’s exactly right. Yes.

Now, in relation to the questions that you were asked about the placement in the isolation cell, in particular I believe it was in relation to 9 December 2010?---Yes.

There were five rooms in total at Aranda House?---That’s correct.

And at times there would be an excess of even 15 people placed there at Aranda House; is that right?---No. I think the highest we ever exceeded – the highest capacity that we ever had there was 12.

Okay. So if you were faced with – who would make the determination as to where a particular detainee was housed?---The admitting staff.

Okay. Would you have an involvement in that?---If they saw – if I was on call, and I wasn’t at the centre at the time, and they were having difficulty placing someone, they would obviously ring me.

And of the five rooms that have been identified, one of those rooms is a potential designated at risk cell; is that right?---Two.

Two of them. So if you were faced with the proposition either to place two detainees in the one room or alternatively place one in one room and one in the designated at risk room, was there a preferred approach to be adopted?---No. There was none. It was just a bedroom and that was it.

Just finally, in relation to CCTV footage that was requested of you, and in particular I’m asking you about 7 December 2010, not 9 December 2010, you understand that?---Yes.

.ROYAL COMMISSION 20.4.17 P-2604 B. CLEE RXN©Commonwealth of Australia MR LEWIN

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Were you ever – did you ever receive a request for the provision of CCTV for that date?---No.

Have you ever been shown any document, whether it be by way of email, statutory declaration from investigating police officers or any of the kind, evidencing such a request for that CCTV?---No.

Okay. Had you been – had you received such a request what procedure would you have adopted?---Exactly the same one as we go through now: the CCTV footage would have – it would have been downloaded. Now in place is a chain of evidence log basically, which is a CCTV register. The police would come in and sign the – that they’d received the CCTV register. That was actually implemented after all this kerfuffle with the original CCTV.

And that was actually the next question I was going to ask you. So this all came to a head in November 2011 when the footage was ultimately provided to the Commissioner; yes?---That’s right.

And you – did you have some difficulty in back checking the history of requests and when and if the CCTV had been provided?---There was no protocol in place for recording.

You said that there was – I think you said there was a protocol thereafter. Who set up that protocol?---I did, actually.

Okay. What did you do?---I – I actually drafted up a proper CCTV register so that any – if CCTV was going out to any third party, it could be signed for as a chain of evidence so that you could actually see where it was going and I forwarded all the work I had done on it through to the GM to actually encourage him to implement it at Don Dale as well.

And did they adopt it, to your knowledge?---To my knowledge, they did, yes.

Thank you. No further questions.

COMMISSIONER WHITE: Thanks, Mr Lewin.

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

COMMISSIONER WHITE: Thank you, Mr Clee, you’re released from your summons now and you’re free to go?---Thank you very much.

COMMISSIONER GOODA: Thank you.

<THE WITNESS WITHDREW [11.54 am]

.ROYAL COMMISSION 20.4.17 P-2605 ©Commonwealth of Australia

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COMMISSIONER WHITE: What do you want to do about the timing? Your unbelievably sanguine expectations have not been met.

MR CALLAGHAN: If the link is to start at 12 it’s probably futile to commence.

COMMISSIONER WHITE: Well, if we’re going to start with - - -

MR CALLAGHAN: If we’re going to start at 12.

COMMISSIONER WHITE: - - - the witness at 12, then that’s right, I think.

MS BROWNHILL: Commissioners, we understand that my learned friend Mr O’Brien is going to be extremely brief with the next two proposed witnesses. They are here visiting from elsewhere. Five minutes with each is the indication.

COMMISSIONER WHITE: That shows a great deal of confidence, Ms Brownhill.

MS BROWNHILL: Well, what we would ask is it may be preferable for those two witnesses to give their evidence in that way and delay the video link with Mr Voller for that short period in order for them to be allowed to leave, because otherwise they will have to come back tomorrow.

COMMISSIONER WHITE: It’s - - -

MR CALLAGHAN: My sole concern is whether we can extend the link at the other end, because people have expectations about the amount of time that is available for Mr Voller. So if I can have some indication. I will be five minutes with each, I think Mr O’Brien is five minutes with each, if we can extend - - -

COMMISSIONER WHITE: Quarter past 12 then.

MR CALLAGHAN: Alright. Sorry. Excuse me, Commissioners.

MR O’BRIEN: I’ve just received some instructions that Mr Voller is fairly keen to start as soon as is possible.

COMMISSIONER WHITE: Well, one would expect that.

MR O’BRIEN: Yes.

COMMISSIONER WHITE: All the witnesses want to do that, Mr O’Brien, especially those that have been sitting around and waiting, which – I think we have to try to be courteous.

MR O’BRIEN: Of course, Commissioner. I’m only setting out what I’ve relayed to counsel assisting so that you understand.


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COMMISSIONER WHITE: I understand that, I do – I do, but some patience has to be exercised. After all, we’re running a bit late because some of the questioning took a long time.

MR CALLAGHAN: I wonder if there is another way, and that is that the link I understand is scheduled to finish at 4. Adding these witnesses, Mr Foreman and Mr Hughes to the end of proceedings today, will not elongate things excessively and their evidence is not intense.

COMMISSIONER WHITE: Look, Mr Callaghan it means they’ve got to sit around all the afternoon for effectively 10 minute in the witness box. Could we not dispose of them and have Mr Voller start at 12.15.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: That seems to me to be – if we possibly can do it that way, that’s preferable.

MR CALLAGHAN: I call Michael Hughes.


<MICHAEL HUGHES, SWORN [11.57 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

MR CALLAGHAN: Could you tell the Commission your full name, please?---Michael Hughes.

Mr Hughes, you prepared a statement dated 5 April 2017; is that correct?---That’s correct.

That’s your evidence to this Commission?---Yes.

I tender that.


EXHIBIT #300 STATEMENT OF MICHAEL HUGHES DATED 05/04/2017

.ROYAL COMMISSION 20.4.17 P-2607 M. HUGHES XN©Commonwealth of Australia MR CALLAGHAN

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MR CALLAGHAN: Mr Hughes, I would ask you also to accept that you took part in an interview with the Children’s Commissioner on 7 October 2016; do you recall that?---Yes I recall that.

I tender a transcript of that interview.


EXHIBIT #301 TRANSCRIPT IF MICHAEL HUGHES INTERVIEW WITH CHILDREN’S COMMISSIONER DATED 07/10/2016

MR CALLAGHAN: Mr Hughes, your evidence concerns the way in which Dylan Voller was treated at the Alice Springs Correctional Centre, at an adult facility; is that correct?---That’s correct, yes.

I don’t intend to ask you so much about what you did as about your state of mind at the time you did it, and in particular it is the case, is it not, that you were not aware that the Youth Justice Act was applicable to a child in an adult centre?---That statement is correct. I wasn’t aware that Youth Justice Act was applicable.

And as a result you were not aware that a different status was to be afforded to children who were accommodated in an adult facility?---I was aware of the necessary accommodation for a youth housed at adult facility, but other than that, very little.

Well, it would be fair to say, as you said to the Children’s Commissioner that your knowledge of the Youth Justice Act was limited to the fact that it existed?---That is correct.

And can you tell me this – well, and you were told about that in your training, the fact that it existed?---Yes, during the 11 week training period.

But that’s as much as you were ever told about it in training or at any other time?---That’s right.

Did you have a Working With Children Check?---No.

An Ochre card?---No. I had previously applied for one, but it never arrived.

Thank you. That’s all I have.

COMMISSIONER WHITE: Mr O’Brien.

<CROSS-EXAMINATION BY MR O’BRIEN [11.59 am]

.ROYAL COMMISSION 20.4.17 P-2608 M. HUGHES XXN©Commonwealth of Australia MR O’BRIEN

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Mr Hughes, my name is O’Brien, I represent Dylan Voller?---Good morning.

Mr Voller was in that restraint chair that we’ve seen depicted on Four Corners and exhibited in that is proceedings for a period of approximately two hours on that particular occasion; correct?---Yes. Less than two hours.

Just less than two hours; correct?---Yes.

Yes. And yet there was only 15 minutes of video footage compiled on – on – in relation to that particular restraint; that’s the case, isn’t it?---I’m unaware of the – the amount of time that it was videoed.

I’ve collated the times which the footage runs. It appears that the camera’s turned on and off at various times. You would agree with that?---Yes.

And in my calculations there’s about 15 minutes of video footage on that video recording. Are you able to accept that?---Is that – so when are you saying that the video footage commenced?

From the start to the end?---From discussions prior to being - - -

No, from the – in the actual restraint – his being in the actual restraint chair?---Okay. Yeah, if that’s what the footage amounts to, then that’s it.

And so it is the case that the video was turned on and off?---Yes.

I want to suggest to you that during the periods when it was turned off, either you or other guards were tormenting Mr Voller?---Well, I can only speak for myself, but that statement is incorrect.

You didn’t hear others tormenting him?---No.

Whilst he was in that restraint chair he complained to you about feeling as though he was choking; correct?---I don’t necessarily recall that part, but if - - -

He said that the spit hood had been placed incorrectly around his neck. Do you remember that?---I don’t recall him saying that it had been placed incorrectly around his neck, no.

Did someone say that to you or did someone else?---Not until a very long time later, as in after – I didn’t realise until the Children’s Commissioner.

Did you place the spit hood around his head?---I put it over his head, yes.


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And you came to learn later that it had been placed around his head incorrectly?---Well, there’s only one way to put it on, but it was – it wasn’t fitted correctly.

Yes. And you can’t recall him saying, “I’m choking, I can hardly breathe” or something to that effect?---No, I don’t recall that at all.

You recall that whilst he was in that restraint chair he urinated on himself?---No.

And then he had been asking to go to the toilet but it was disallowed?---I don’t recall him asking for it, and there’s – there was no evidence that I saw that he did urinate on himself.

Nothing further. Thanks for your time.

COMMISSIONER WHITE: Yes. Thanks, Mr O’Brien.

MR CALLAGHAN: May Mr - - -

COMMISSIONER WHITE: Anything from you, Ms Brownhill?

MS BROWNHILL: I don’t have any questions for the witness, Commissioners, but there is other CCTV footage and I’m not sure whether my learned friend Mr O’Brien is aware of it. So the room had a camera as well as a handheld camera being – taking footage. So the questions that he’s asked about the time duration were in relation to the handheld camera footage.

COMMISSIONER WHITE: Well, I’m assuming it must have been hand held because it was being turned on and off, and that wouldn’t have been possible with - - -

MS BROWNHILL: Correct. Whereas the room camera, the CCTV which has been produced to the Commission under a notice to produce, ran for the duration.

COMMISSIONER WHITE: Thanks, Ms Brownhill.

MS BROWNHILL: We actually would like that CCTV footage to be tendered and received by the Commission and I can provide a number.

MR CALLAGHAN: That would be helpful, because we have looked and apparently it can’t be retrieved from the data as we’re interpreting it at the moment. so if some further information can be supplied that would be helpful.

MR O’BRIEN: I can only say, on my part, I have no knowledge of this CCTV footage. The only knowledge we have of this, despite it being part of discovery and these proceedings, that we have never received it and haven’t seen it, and didn’t even


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know that it existed. We assumed that there was no CCTV footage available. I would be delighted to see it.

COMMISSIONER WHITE: I think what we can do, Mr O’Brien, is to release Mr Hughes from his summons now. If it becomes necessary when you’ve had a look at the complete footage of the period in question that you want to put some questions to him, then we can consider reissuing a fresh summons.

MR O’BRIEN: I’m satisfied with that.

MS BROWNHILL: Can I just indicate paragraph 12 of Mr Hughes’ – no, this is Mr Foreman’s statement, does make reference to CCTV recordings being made in the cell and I can give the ID number if that would assists.

MR CALLAGHAN: We can perhaps do that at another time.

MS BROWNHILL: Certainly.

COMMISSIONER WHITE: Alright. Thank you. I will leave it to counsel to sort out this issue then, and we will let Mr Hughes go.

Mr Hughes, you’re released from your existing summons to appear before the Commission and give evidence. If something should arise as you’ve heard me discuss with counsel - - -?---Yes.

- - - relating to this further video footage, then the Commission may have to issue you with a fresh summons, but it may not be necessary either. I’m just letting you know - - -?---Yes, thank you.

- - - it’s conceivable. Alright. Thank you. Well, you’re free to go, now?---Thank you, Commissioners.

<THE WITNESS WITHDREW [12.05 pm]

MR CALLAGHAN: I call Darren Foreman.

<DARREN FOREMAN, SWORN [12.06 pm]

MR CALLAGHAN: Could you tell the Commission your full name, please?---Darren Foreman.

Mr Foreman, you prepared a statement dated 5 April 2017; is that correct?---Yes, that’s correct.

.ROYAL COMMISSION 20.4.17 P-2611 D. FOREMAN ©Commonwealth of Australia

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Yes. I tender that statement.

COMMISSIONER WHITE: Thank you. Mr Foreman’s statement is exhibit 302.

EXHIBIT #302 STATEMENT OF DARREN FOREMAN DATED 05/04/2017

MR CALLAGHAN: You also entered into an interview with the Children’s Commissioner on 7 October 2017 [sic]; is that correct?---Yes, that’s correct.

I tender a transcript of that interview.

COMMISSIONER WHITE: That transcript is exhibit 303.

EXHIBIT #303 TRANSCRIPT OF DARREN FOREMAN INTERVIEW WITH CHILDREN’S COMMISSIONER

MR CALLAGHAN: Mr Foreman, you were present when Mr Hughes was just giving evidence a moment ago, were you?---Yes, I was.

My questions for you follow very much the same format. It’s the case, isn’t it, that your understanding was that a child being accommodated in a custodial correctional facility was to be treated as if they were any other adult prisoner?---That’s correct.

And as far as you were concerned, that was an understanding that was shared by the staff with whom you worked?---That’s correct.

You were not given any training that might have alerted you otherwise?---That’s correct.

And it’s not as if it was a theoretical consideration because, at the time of your interview with the Children’s Commissioner, you were aware of two juveniles having been accommodated at the adult centre; that’s right?---I was only aware that Dylan Voller had been accommodated at – at the adult correctional centre at an earlier date, about six months prior to this incident.

Can I get the interview up on the screen, please, at page 6. Can you see at line 42 you’re recorded as saying:

The only other experience I have had I think there has been, I think, two juveniles housed at the correctional centre.

.ROYAL COMMISSION 20.4.17 P-2612 D. FOREMAN ©Commonwealth of Australia

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Does that jog your memory at all?---I can’t remember specifically a second. I can remember that Dylan Voller was accommodated in the maximum security area of the adult correctional facility and, as I said, it was about six months prior to the incident.

Can we take it, though, that as at the time of your interview with the Children’s Commissioner your memory was that there had been two juveniles accommodated there?---That’s what I’ve said at the – at the interview, but I can’t remember specifically - - -

Alright?--- - - - The name of the other juvenile that might have been there, I’m sorry.

Alright. The short point being that at no point during the stay of however many juveniles there may have been did anyone inform you about the provisions of the Youth Justice Act and in particular section 154?---No. That’s correct.

Did you have a Working With Children Check?---No, I did not.

An Ochre card?---No.

The potential need for one was discussed in the context of conducting escorts, and when I say “discussed”, I mean discussed – you had some awareness of a discussion as to the need for an Ochre card, but the consensus was – or the shared understanding was that there wasn’t a need for one; is that right?---That was when I think they were implementing escorting officers, escorting - - -

Yes?--- - - - juveniles into Alice Springs.

Alright. So - - -?---Yes, I wasn’t clear about what the – whether it was either required or whether it wasn’t required. It wasn’t – it wasn’t a definitive answer, I don’t think, given about that.

No one gave a definitive answer, but someone turned their mind to it?---I think so. It was discussed I think, yes.

Okay. Thank you.

COMMISSIONER WHITE: Mr O’Brien.

<CROSS-EXAMINATION BY MR O’BRIEN [12.10 pm]

MR O’BRIEN: I don’t have to suggest to you – my name is O’Brien, I appear for Mr Voller. Mr Foreman, I don’t have to suggest to you, do I, that a restraint of this type that you were implementing against this young child was a serious thing to be doing. You accept that, don’t you?---Yes, I accept it was a serious situation, yes.

.ROYAL COMMISSION 20.4.17 P-2613 D. FOREMAN XXN©Commonwealth of Australia MR O’BRIEN

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Particularly in circumstances where a child has made a threat to kill themselves; remember that?---Yes. well, that – I didn’t make that decision though.

I don’t intend – I don’t Commissioners, to traverse the cross-examination I performed on Mr Hughes, but I am concerned to see the CCTV footage that’s been discussed and I simply reserve my position at this stage in relation to this witness, as I did with the other – with Mr Hughes.

COMMISSIONER WHITE: Alright.


COMMISSIONER WHITE: I think, Mr O’Brien, you should try, if there are questions that you can ask him, you should do so that if – so that it might not be necessary to call him back, don’t say, “Well, look, I didn’t ask those questions because I was waiting to see.” So is there anything else you want to ask him?

MR O’BRIEN: In relation to the rules of Browne v Dunn not applying, there’s no point cross-examining this witness as I did Mr Hughes.

COMMISSIONER WHITE: Right. You just have to be fair, Mr O’Brien. That’s all. Browne v Dunn doesn’t really matter.

MR O’BRIEN: In fairness to you, Mr Foreman, I ask the following questions. The CCTV – sorry, Handycam camera was turned on and off, wasn’t it?---I believe that I turned the camera on when I was posted outside the cell observing Dylan in the chair. That was my understanding. I can’t remember whether it was on or off. It’s a Handycam. I’ve not used one before, Mr O’Brien.

You see, Mr Foreman, as you heard me ask Mr – and suggest to Mr Hughes earlier, we’ve taken the time to go through the footage and measure each clip and it appears that, despite the fact that he was in the chair for just about two hours, he – the footage only reveals 15 minutes worth of content. Do you understand that?---I understand.

So I’m suggesting to you again – suggest that the camera was either turned on or off – on and off, or went on and off of its own volition. Is that – what’s the situation there?---I can only just say that my understanding was that I turned the camera on while I was there observing Dylan in the restraint chair in the cell, in the observation cell.

And it never went off, as far as you were concerned?---I don’t know whether it went off or not.

Right.


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COMMISSIONER WHITE: Well, I think you’ve explained your ignorance of such a device in paragraph 12 of your statement, Mr Foreman. Is that the position, that you thought it was on but it could have been off? You really – it was operator error in this case?---Well, it may have been.

When you were holding it?---Well, yes, I’m not sure. I had not used a Handycam before, your Honour, so - - -

And you were on 15 minute rotations with other correctional officers?---Approximately 15 minutes, your Honour, yes.

So can you now recall about how many other officers were working the Handycam that night?---There were five officers in the area at the time and I don’t think the OIC had a rotation in the observation chair. So there would have been, I believe, four.

And how many of you were looking after, if I can use that expression, Dylan Voller?---There was – there was five officers.

Assigned to that task?---Well, there were five officers at the post, the officers’ post, when – from when Dylan was placed in the chair, right up until he was removed from the chair. At the beginning of our shift there was just two officers, Mr Hughes and I, but the other officers came down to the officers’ post to assist in – with the situation.

Thank you.

MR O’BRIEN: Do you recall Mr Voller saying that he felt choked, words to that effect, by the spit hood?---No, he didn’t.

.....?---He didn’t say anything like that to me.

You can’t recall that?---No, I can’t recall him saying anything like that to me.

Thank you. Nothing further.

COMMISSIONER WHITE: Thank you. Anything from you, Ms Brownhill?

MS BROWNHILL: No.

COMMISSIONER WHITE: Anything further from Mr Callaghan?

MR CALLAGHAN: Sorry, Commissioner?

COMMISSIONER WHITE: Anything further?

MR CALLAGHAN: No. May the witness be excused.


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COMMISSIONER WHITE: Yes. Thank you, Mr Foreman, you’re excused now and you’re released from your summons to appear before the Commission?---Thank you.

Thank you.


COMMISSIONER WHITE: Sorry, Mr - - -

MR CALLAGHAN: I’m just not sure whether we have to – we’re ready for the video link now, I think. I’m not sure whether we have to adjourn to – no, here we go.

COMMISSIONER WHITE: Yes. It’s there. You see Ms Goodhand there. Do you have sound, Ms Goodhand at your end? Perhaps not.

MS GOODHAND: Sorry, can you hear me now?

COMMISSIONER WHITE: We – yes, we can, Ms Goodhand. Thank you.

MS GOODHAND: Thank you. So we can hear and see clearly. Can you, Dylan? Or can you see .....

COMMISSIONER WHITE: We can see Mr Voller, we can’t see you. Yes, we can. Thank you. To the extent that it’s necessary to do so. Alright. Well, Mr Callaghan will - - -

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: And you might just get Ms Goodhand to indicate who else is in the room with them. If there are – it’s open to the public, not that – I mean those people who are supporting Mr Voller. Thank you.

MS GOODHAND: So Keira Voller, Mr Voller’s sister; Olivia Tolley, solicitor; Mr Joe Williams, a support person; and Ms Barb Shaw from the Royal Commission.


MS GOODHAND: And Mr Voller’s mother is in the area, but she’s not in the room at the moment.

COMMISSIONER WHITE: Thank you, Ms Goodhand.

MR CALLAGHAN: I call Dylan Voller.


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COMMISSIONER WHITE: Thank you. Mr Voller, you can sit down because your head is disappearing from the screen when you stand up.

<DYLAN JAMES VOLLER, RECALLED AND RESWORN [12.18 pm]

COMMISSIONER WHITE: Thank you, Mr Voller. Thanks, Mr Callaghan.

<FURTHER EXAMINATION-IN-CHIEF BY MR CALLAGHAN [12.18 pm]

MR CALLAGHAN: Once again for the record, may you just tell the Commission your name?---Dylan James Voller.

Mr Voller, of course, we know you’ve given evidence previously in these proceedings, and it’s also the case that you’ve supplied a further statement with some more evidence in it, and that’s a statement dated 8 April 2017; is that correct?---Yes.

Do you have a copy of that there with you? Alright. This bit doesn’t directly concern you at the moment, Mr Voller, but I’m just not going to tender that at the moment, but parties are free to refer to it, of course, and I just wanted to make sure that it was available. Mr Voller, you know that in your original statement you said a lot of things about a number of people that were adverse to their interests. That’s the case, isn’t it?---Yeah, that’s correct.

And since then you’ve seen a lot of statements that have been received by the Commission in response to your – your first statement?---Correct.

And a lot of that has been addressed by you in the statement that we just referred to, the one of 8 April. That’s right, isn’t it?---Yeah, that’s correct.

Now, there are today a number of people, at least legal representatives – three different legal representatives who will seek to cross-examine you on the content of your statements and about your evidence. You understand that?---Yes.

All right. Well, in the interests of ensuring that everybody gets the time that is available, Commissioners, I would invite those parties to go about their cross-examination now.

COMMISSIONER WHITE: Yes. Have you settled on an order, Mr Callaghan, with counsel?

MR CALLAGHAN: Ms Brownhill occupies - - -

MS BROWNHILL: I leapt to the front.

.ROYAL COMMISSION 20.4.17 P-2617 D.J. VOLLER FXN©Commonwealth of Australia MR CALLAGHAN

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COMMISSIONER WHITE: Of course, you’re the most senior lawyer present and courtesy would suggest that would be the case. Sometimes, people work things out differently.

MS BROWNHILL: Well, we’re proceeding that way, as I understand it



COMMISSIONER WHITE: Alright, thanks. Mr Voller, you’re going to be asked questions by Ms Brownhill, the Solicitor-General for the Northern Territory government. Now, her cross-examination is going to take quite some time so we will be taking the lunch adjournment in the midst of it?---Yeah.

Thank you.

<CROSS-EXAMINATION BY MS BROWNHILL [12.21 pm]

MS BROWNHILL: Mr Voller, you understand that I act both for the Northern Territory and also a number of the Youth Justice Officers and other employees of the Northern Territory who you’ve referred to in your statements. You understand that?---Yes.

Alright. Can we have Mr Voller’s first statement on the screen, please, or do you have that accessible to you, Mr Voller?---Yeah, I’ve got it.

COMMISSIONER WHITE: Which one, Ms Brownhill?

MS BROWNHILL: The first statement.

COMMISSIONER WHITE: Yes.

MS BROWNHILL: First of all I want to ask you questions about what’s in paragraph 16 of that statement?---Yeah.

And in that paragraph you set out some things about your time at a primary school in Alice Springs?---Yeah.

And the principal of that primary school has provided a statement in response to what you’ve set out there, and I think your supplementary statement – your second statement makes some responses to what she has said in her statement?---Yeah.

And in paragraph 12 of your supplementary statement you say that, notwithstanding what she said, you stand by what you said in paragraph 16?---That’s correct.

.ROYAL COMMISSION 20.4.17 P-2618 D.J. VOLLER XXN©Commonwealth of Australia MS BROWNHILL

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So what I want to do is go through some of the things that she has said in her statement and just ask you whether you agree or disagree with those things. Do you follow?---Yes.

Alright. So you first attended that primary school in November 2006. Do you agree or disagree with that?---It could have been around there. I don’t have it on paper, but it was around that time, yes.

Alright. And when you first started you attended school from 8.30 in the morning till 10 o’clock in the morning?---Yes. Something like that, yeah.

And then soon after you started that timing was extended from 8.30 in the morning till 12 midday?---Yep.

And at the time you started attending that school, you had been prescribed the drug Ritalin by a paediatrician?---Yep.

And what he had prescribed was a dosage of a tablet in the morning before school and then another tablet at noon?---Yeah, that’s correct.

And one morning, when you hadn’t taken your tablet before school you had a big argument with your mother about that. Do you remember that?---I can’t remember that.

Could it have happened that you had an argument or – and you just don’t remember it, or - - -?---Yeah.

- - - are you saying it didn’t happen?---Yeah, it’s possible.

Okay. The taking of the drug Ritalin had a beneficial effect on your behaviour at school, didn’t it?---It did, but it also come with consequences of feeling sick at the end of the day.

Alright. In 2007 at the start of the school year you began attending school for the full school day?---Yep, that’s possible.

And from that time onwards, your mother asked you – sorry, asked the school to give you the noon dosage of the Ritalin tablet?---Yeah, I don’t remember who said it, but that was the plan, that I took it at school.

Okay. Your Mum gave the school the tablets that you were to be taking at school?---Yeah.

And when you were at the school, you had a behaviour plan?---Yeah. I don’t remember the behaviour plan, but could be possible, if you say that.


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Well, the principal of the school has attached to her statement some of those behaviour plans. Have you seen those?---I don’t have it in front of me, no.

MR O’BRIEN: Can I ask that the witness be provided with a copy of the statement.

COMMISSIONER WHITE: By [REDACTED]?

MR O’BRIEN: Well, the statements being referred to by the Solicitor for the Northern Territory.

MS BROWNHILL: Well, I’m perfectly happy for that to happen. It’s one of the documents that can be shown electronically, as I understand it.

MS GOODHAND: Sorry, can I - - -

COMMISSIONER WHITE: Ms Goodhand.

MS GOODHAND: Sorry, can I interrupt at that point. We can’t actually see any documents on the screen at this end.

COMMISSIONER WHITE: Can you see it now?

MS GOODHAND: Yes. We can. It just needs to be larger though.

COMMISSIONER WHITE: Yes. But when it’s necessary, we will ask them to enlarge it to be able to be read, Ms Goodhand. Thank you.

MS GOODHAND: Thank you, Commissioner.

COMMISSIONER WHITE: If you could keep monitoring it, that would be helpful.

MS BROWNHILL: So the behaviour plans are attached as part of that statement. I don’t have the particular page number, I’m sorry. But, Mr Voller, did you not look at this statement of [REDACTED] when you prepared your supplementary statement?---Yeah, I did, but it’s quite a while ago, weeks ago.

I don’t want to take up too much time on it, but perhaps you can just indicate whether you agree or disagree with me that you had behaviour plans for your time at that school?---I can’t remember. It’s behaviour plans.

Right.

COMMISSIONER WHITE: I just want to ask, Mr O’Brien, do you have the statement by [REDACTED].

MR O’BRIEN: Yes, I do.


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COMMISSIONER WHITE: Alright. Can you then, as it were, keep a watching brief on it, because this is trying to short-circuit it a little. Mr Voller is not saying he doesn’t – he denies it, he just can’t remember, and I think it will be encouraging if you’re able to – even if they – to take him to those behavioural management plans if necessary, but only if necessary.

MR O’BRIEN: Yes. I thought that if the Solicitor for the Northern Territory was going to show him something, he would have a copy of it, but - - -

MS BROWNHILL: I understood that to be the case as well, and I have a number. I don’t know if it accords with the numbering that goes on, on the system. DOE.0001.0001.0604.

COMMISSIONER WHITE: I think that tends to work.

MS BROWNHILL: Okay. It’s a page attached to the statement, as I understand. Okay. So can you see that document now on the screen, Mr Voller?---Yes I can.

And do you accept then that, for your time at the school, you had behaviour plans, including the one that’s shown on the screen?---Yeah. They must of, but I don’t remember seeing it, and I don’t remember having it. It must have been there, but I don’t remember it.

Alright. Under the plan your participation in class depended on your proper interaction with staff and students at the school. Do you agree with that?---Yeah. Must be. If you’d be able to go down the page a little bit, please?

If we can just pause it there, you can see at paragraph 4, for example – sorry, paragraph 3, a little bit higher?---Yeah, I can see it now.

And there’s a reference to you spending some time in the timeout – timeout area. See that?---Yep, that’s correct. I can see it.

And the plan was that if you stayed – well, I will just go back a step. If necessary, you were told to go to the timeout room. If you didn’t go, you would be taken there by two staff members. Do you agree with that?---Yep. That is what happened, yes.

And if you stayed quiet in the room for 4 minutes then you could return to the class?---I don’t remember how long it was for, or if that was the plan, but could have been possible. I don’t remember.

Alright. In relation to the timeout room, that room had four windows. Do you agree or disagree with that?---Not windows with air coming through it. It was windows, but not ones that you could open, or that I’ve ever seen to open.

Well, initially the windows were glass louvres. Do you agree or disagree with that?---Possibly, yes.


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And the glass louvres were replaced after you broke one of them with one of your shoes. Do you agree or disagree?---Possibly, yes.

And after that those windows were replaced with a Perspex that covered the windows?---Yep, possibly.

In the room, some of the carpet had been taken out after you defecated in a corner. Do you agree or disagree?---I agree, because I wasn’t allowed to go to the toilet.

The door was never actually locked?---No, that’s wrong.

The door could be opened from the inside?---That’s wrong. There would be a staff member out there making sure it stayed shut.

Well, that’s a different point really. What I’m putting to you is that the door could be opened by you from the inside if you wanted to open it. It wasn’t locked?---Yeah, that could have been true, but I wasn’t allowed to open it, and I couldn’t open it if someone was there holding it.

Alright. So I think you’ve agreed already that two staff members would take you to the room and then they would stand outside the room while you were in it. Do you agree or disagree?---Yeah, could have been two, but at some stages there was even more than two.

Okay. And your shoes were taken off when you went in there because you had used them to smash the window one time?---Possibly, yes.

And your socks were also taken off after you had tied them around your neck one time?---Possibly, yes. I don’t remember doing that.

You don’t remember doing that?---No, not that young.

You were never kept in the room all day, were you?---Kept in there for a while, at least two hours at one stage, I’m pretty sure.

Okay so - - -?---Until I got picked up.

You say up to two hours, do you?---Yeah, until at least I got picked up or the police would have come and got me.

Well, that’s the next question I was going to ask, was that if the timeout room wasn’t working other steps might have been taken. For example, your Mum was sometimes called to take you home?---I was always put in the timeout room before those other steps were taken.

I understand that, but if the timeout room wasn’t working then other steps were taken, such as your Mum being called to take you home. Do you agree or


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disagree?---Yeah. I agree that pretty much happened pretty much every time I got put in the timeout room.

Some of the times you were driven home by school staff. Do you agree or disagree?---I don’t remember that happening.

Sometimes you were sent home with your Mum in a taxi?---Yeah, that’s probably possible, yes.

And sometimes the police were called to the school?---Yep.

Now, your Mum knew about the behaviour plans. Do you agree or disagree?---I’m not sure if she knew or not.

Do I take it, then, that you would also say the same in relation to the behaviour plans being sent to her every time they were updated?---Yeah. Well, obviously I don’t know, because I don’t even remember the behaviour plans.

Alright. Your Mum didn’t make any complaint about the behaviour plans though, did she?---I’m not sure, because that – that age I wasn’t really worried about it. I didn’t even know what was going on myself.

So you’re saying your Mum – you didn’t know whether your Mum made complaints about those plans or anything in them?---No, I’m not sure.

Okay. Your Mum didn’t make any complaint to the school about the timeout room, did she?---I’m not sure.

MR O’BRIEN: Your Honour, Commissioners, I object at this stage. This child was 10 years of age when these things were happening and asking him about what he recalls is fair enough, but asking what the mother did, and how the mother responded, and what the mother knew is totally unhelpful, bearing in mind the passage of time that’s already expired to now, and also his tender age at the time.

COMMISSIONER WHITE: Mr Voller, he does seem to be answering fully and frankly to the extent that he’s able. I’m not seeing Mr Voller labouring with difficulty here, Mr O’Brien. Obviously enough, there’s not too much point in putting all those questions about what his mother does and doesn’t know, because - - -

MS BROWNHILL: Well, the reason that - - -

COMMISSIONER WHITE: He’s given an indication of how little he recalls. MS BROWNHILL: Yes. And the point, Commissioners, is that in paragraph 16, Mr Voller makes the allegation that his mother found out about him being locked in the room.


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COMMISSIONER WHITE: Correct, yes.

MS BROWNHILL: And later told him that she made a complaint about it.


MS BROWNHILL: Mr Voller, the next thing – sorry, then I press the question, do you agree or disagree that your Mum didn’t make any complaint about the timeout room?---I think she might have after looking through the documents.

What do you mean by “after looking through the documents”?---These documents that are before the Royal Commission.

I don’t understand that answer. Are you suggesting your Mum made a complaint after seeing the Royal Commission documents?---No, I’m suggesting that I found out that she made that complaint after I seen the Royal Commission documents and going back through the records.

Can you point us to a document that might have led you to think that?

MR O’BRIEN: Quite seriously, I object to that.

COMMISSIONER WHITE: Mr O’Brien, that is a quite proper question. It’s a quite proper question.

MR O’BRIEN: We have received over 10,000 documents from the Northern Territory government in relation to this matter. Is he expected to go through every one or find it – pluck it from somewhere. I mean, it’s just a preposterous suggestion.

COMMISSIONER WHITE: Wait for the answer. There may be some assistance. If he can’t be given any assistance, it’s perfectly understandable. Ask the question again.

MS BROWNHILL: Mr Voller, can you point to a document which might have led you to think that your mother might have made a complaint?---Well, like Mr O’Brien just said, I can’t exactly point out a paper. I’ve got two statements before me and that’s all I have.

Thank you.

COMMISSIONER WHITE: Mr Voller, if you can think about the circumstances in which you were informed about the complaint, as you’ve set out in your affidavit, that might be of assistance to the question?---May I be able to try and find it over the lunchbreak?

I’m sure that you will have lots of other tasks somehow, if we go on this way, but can’t recall. Thank you, Ms Brownhill.


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MS BROWNHILL: Mr Voller, do you agree or disagree that you were never expelled from the school, although you were suspended a number of times?---I disagree.

The last time you were suspended was because you assaulted a fellow student. You punched him in the head. Do you agree or disagree with that?---That happened, but I got expelled for that.

Do you agree or disagree that this document came the day after you returned to school from a three day suspension for assaulting three other kids in the playground?---I can’t recall it.

Do you agree or disagree that, after the assault of the student that you did recall, it was decided that the school could no longer keep teaching you because of concerns for safety and wellbeing of students and staff?---Yes. And therefore I was expelled.

Do you agree or disagree that the school was willing to consider a part time placement at the school, but that this was contingent upon your behaviour changing?---I disagree. I’ve never heard any talk of that.

Do you agree or disagree that the school sought that you could be continuing with your education at a place called Alice Outcomes?---I did go there and there was an incident there as well.

And you were also provided, I think, with an alternative education setting at The Gap Youth Centre. Do you agree or disagree?---Yeah, I agree.

I want to move to a different area now, please. It’s to paragraph 44 of your first statement. You will see that in that paragraph you say:

I think it all began because I threw a rock at the window of my Mum’s house. She was frustrated and someone at DCF told her, if she reported the incident to police, I’d be given the help she thought I needed.

And your mother did this and you ended up at Aranda House. Again, I want to put some propositions to you to see whether you agree or disagree with them. On 17 March 2009 you committed the offence of unlawful property damage to a school bus at the primary school we were just talking about. Do you agree or disagree?---I think that’s true, yes.

And you were charged with that offence?---Yep.

On 24 March 2009, you committed the assault on the classmate at school that I asked you about?---Yep.

And you were charged for that?---Not 100 per cent sure. Probably. Yes.


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On 16 June, you committed the offences of unlawful property damage and being armed with an offensive weapon. Do you agree with that?---Not sure of dates or what particular incident you’re talking about, but possibly, yes.

And then it wasn’t until 30 June 2009 that you committed the offence of unlawful property damage to your mother’s window?---Like I said, I’m not sure of the dates, but yes.

Well, the dates that I’ve referred you to are taken from annexure DV9 to your statement, which is your criminal history. On that basis, would you accept that those dates are correct?

MS GOODHAND: Sorry. Can we just have a moment to get that up or – we don’t have a hard copy of the annexures.

MS BROWNHILL: Annexure DV9.

MS GOODHAND: Just one – I’ve just got to get it up on the computer.

MS BROWNHILL: Well, again, I don’t want to waste time having the dates – having the document obtained when Mr Voller, you could take it from me – you don’t have to, of course – that those are the dates that are set out in that criminal history that you’ve included with your statement, but it would show that the offence of property damage to your mother’s window happened after other offences that you committed as I’ve taken you through. Do you agree with that or not?---It’s just coming up on the screen at the moment, so I’ll just have a look if that’s alright.

Sure. So the conduct I’m talking about is at the end of that record DV9. So pages 22 and 23 of the 23 page annexure, if that assists.

MS GOODHAND: Sorry, just direct that to Ms Brownhill.

THE WITNESS: It actually says here that my first offence was unlawfully damage property on 19 October 2009.

MS BROWNHILL: The date of 19 October, I think you will find is the date that you were dealt with by the court, but the documents – you will see the heading Court Date at the top of the page?---Yeah, so 16th of the 6th.

That’s right. There is the offence date. So on 19 October you were dealt with by the court for a series of offences, including the ones that I’ve referred to, some of which predated the property damage to your Mum’s window. Do you follow?---Yep.

And it was in relation to those offences that you were first dealt with by the Youth Justice Court on 13 October 2009 when you were remanded in custody at Aranda House. Do you agree with that or not?---Possibly, yes.


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Alright. The documents relating to the dealings that the Youth Justice Court undertook are various reports which are included in the materials that we’ve sought to be included, and I would ask that they be tendered now. I’m not sure of the best way to proceed here, to tender documents as we go or seek to have them all tendered at the end.

COMMISSIONER WHITE: If you’re not going to be particularly breaking them up and referring them, I suspect it’s a bit more effective if you can keep your questions going, Ms Brownhill, and we can tender later.

MS BROWNHILL: That would be my preference.


MS BROWNHILL: I think.


MS BROWNHILL: Alright. Mr Voller, I want to move to a different topic, which is your education at the Don Dale Detention Centre. You’ve dealt with that in paragraph 62 of your statement?---Yep.

Just excuse me for a moment. My learned friend counsel assisting has asked, and I’m happy to do this, that I will identify the documents that I would seek to be tendered as we go along, and we will do no more than that, but then proceed, if that’s convenient.

COMMISSIONER WHITE: Yes. That’s a sensible idea. Thank you.

MR O’BRIEN: Just while we’re on that issue of tendering, please, Commissioner, we have with the Commission – I think it’s been forwarded on the Northern Territory Government set out a list of objections in relation to each of the documents that are sought to be tendered, so we maintain those objections. We don’t seek to be heard in relation to them now, and it might be a matter that the Commissioners can deal with in chambers later but if they seek – if a document is sought to be tendered and we’ve raised an objection in writing with the Royal Commission and with the solicitors for the Northern Territory, then that matter needs to be dealt with before it’s simply carte blanche tendered.

MS BROWNHILL: Which is precisely why we might proceed the way we’ve suggested.

COMMISSIONER WHITE: Yes. We have the substantial document received this morning. That’s the one you’re referring to, I should say, Mr O’Brien, so it would be impossible to rule on those and have any sense of continuity with this – with Mr Voller. So we will resolve those issues subsequently.


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COMMISSIONER WHITE: Thanks.

MS BROWNHILL: So the number of the first set of documents, so there was the statement of the principal, her statement is number 29 on an index that will make sense to everybody here but perhaps not you, Commissioners. The next set is the documents at tab 30, the ..... court files. So as I was saying, paragraph 62, Mr Voller, you’ve given some evidence about your education at Don Dale. Again, I want to put some propositions to you and see whether you disagree or agree with them?---Yep.

Firstly, that sometimes when you were at Don Dale you didn’t want to go to school?---Yeah, I agree.

And sometimes you refused to go to school?---Yes, but it wasn’t that often.

Sometimes you refused to participate in class?---Yep, sometimes.

And sometimes you disobeyed the teachers?---Sometimes, yes.

Sometimes you refused to do the work that they gave you?---Yes.

And sometimes your behaviour was disruptive to the other kids’ learnings?---Yes.

Well, I will give you some examples. For example, you talked or yelled out in class sometimes?---Yeah, when I was trying to yell out to the teacher.

Sometimes you said negative things about school?---Possibly, yes.

And sometimes you walked around the classroom when you should have been sitting at your desk?---Possibly, yes.

Sometimes you verbally abused teachers?---That – recall that, yeah, possibly, yes.

Sometimes you verbally abused other detainees?---Yep.

Sometimes you threatened teachers in class?---I don’t remember threatening any teachers in class.

Okay. Sometimes you had physical fights with other detainees in the classroom?---It’s happened once, yes.

Sometimes you assaulted teachers?---What? Could you please repeat that.

Sometimes you assaulted teachers?---I don’t recall that either.


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For example, at least one time you spat on a teacher?---Would you be able to give me the incident, because I don’t remember this.

Well, that’s all I’m asking you to do at this point, is say whether you agree or disagree with that?---No, I don’t agree.

COMMISSIONER WHITE: If it’s the case – actually there are more than – it’s more than two options for answering. It can be agree, disagree, or can’t remember, Ms Brownhill.

MS BROWNHILL: Well, Mr Voller has been indicating when he can’t remember.

COMMISSIONER WHITE: Yes. So if you can’t remember, rather than denying that it happened, that should be your answer, Mr Voller?---Yeah, I can’t remember it.

Okay. Thank you.

MS BROWNHILL: In 2014, the school decided that they weren’t prepared to tolerate your behaviour anymore?---Could have been around that time, yes.

Subsequently, you said you wanted to do your year 10 and the school said that you could do it, but not in the classroom with the other children?---I did ask to do it and it never got chased up, never got followed through or anything.

Well, I take it from that answer that you would disagree then that you had identified with the teachers what year 10 subjects you wanted to enrol in?---They did and then after that I never heard anything back. They did offer once to give me some sort of maths sheets just to do in my room, but it wasn’t graded. It was just easy year 2 maths, just work sheets.

In late 2014, on the basis of the discussion you had about the subjects you wanted, they enrolled you in four year 10 subjects with the NT Open Education Centre. Do you agree or disagree with that?---I disagree with that. In 2014 I wasn’t even in Don Dale, that’s when .....

In late 2014 - - -

COMMISSIONER WHITE: Just let him – just let Mr Voller finish that, if you don’t mind. I didn’t hear the end of your answer, Mr Voller?---In late 2014 is when all the Don Dale tear-gassing incident and stuff like that happened so we were being moved around in pretty much solitary confinement for the whole time.

MS BROWNHILL: In January 2015 you decided that you didn’t want to proceed with the enrolment in the NT Open Education Centre. Agree or disagree?---I disagree.


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MR O’BRIEN: Well again, agree or disagree, the Commissioner has said that might not be the only alternative. Are we talking about things that happened in his childhood, when he - - -

COMMISSIONER WHITE: Well, this is 2015, Mr O’Brien.

MR O’BRIEN: Still, he was a child and it’s still some years ago. If he’s asked - - -

MS BROWNHILL: Well, Mr Voller’s perfectly capable - - -

MR O’BRIEN: I’m sorry, if he’s – sorry, if he’s asked to agree or disagree, but he can’t recall, then asking him to agree or disagree is unreasonable, unfair and unwarranted.

MS BROWNHILL: It’s none of those things, Commissioners.

COMMISSIONER WHITE: No, it’s not.

MS BROWNHILL: He’s perfectly capable, as he has done of saying whether he does or doesn’t recall. I’m just trying to not say 10 words when I can say two or three. It’s in order to fit with the time – the constraints that we’re all under.

Mr Voller, you understand when I put to you a proposition and ask whether you agree or disagree that it’s also open to you, if you don’t remember, to say that you don’t remember; okay?---Yep.

In March 2015 the principal of the Tivendale School gave you NT Open Education Centre subject materials to start work. Do you agree or disagree?---No, I don’t remember that. I don’t remember that.

Okay. You didn’t carry on with doing that work, at least, until in early September 2015 you decided again that you wanted to go back to school?---I don’t remember that.

Do you remember getting your lawyer, Mr Sharp, to write a letter asking that the school allow you to come back?---I think that did happen, but I was asking him to go to school the whole way through, not just stop, and then asked in September.

Well, in any event, in – on 24 September 2015 you turned 18 and then you were transferred to the adult prison. Do you agree with that?---Yeah, that’s correct.

I want to move to a different area now, please. It’s paragraph 106 of your statement. 106?---Yep.

Of the first statement, I beg your pardon. Do you have that?---Yes, I do.


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In that paragraph, you say that you think you should have been able to have a shower without the YJOs watching you. It made you feel uncomfortable. You say:

There was one YJO who would watch us showering a lot. His name was –

And then you’ve set out what his name was. Do you agree with that?---Yep.

And then in your supplementary statement – well, I should say that that named officer has provided a statement in response, and then you have also put in your supplementary statement a response to that response. Paragraph 181.

MS GOODHAND: Sorry, the witness just asked if he could mention the officer’s name, and I’m just about to tell him not to mention the officer’s name unless you mention the name. Sorry to interrupt.

MS BROWNHILL: No. Thank you. I appreciate the instruction. That’s the way I would like to approach it as well.

MS GOODHAND: So don’t mention.

THE WITNESS: .....

MS BROWNHILL: Paragraph 181 of your supplementary statement?---I’m just bringing that up now.

Okay?---Yes, I have it up now.

I will just read it out to you. You say:

I was not necessarily suggesting that YJO –

and then you give his name –

was intending to stare at me for a sexual reason.

Now, you’ve read that officer’s responsive statement, as I understand it?---Yeah.

Do you agree or disagree with his evidence that the supervision of detainees in the shower was done from outside the bathroom door where the officer couldn’t see into the shower cubicles?---Disagree with that.

In paragraph 181 of your second statement – sorry, I withdraw that. You would agree, wouldn’t you, that making a suggestion that a Youth Justice Officer stared at detainees in the shower for a sexual reason is a very serious allegation?---I totally agree, and that’s why I’ve cleared that up in my supplementally statement.


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Well, you’ve gone so far in your first statement as to name a particular officer as watching you in the shower a lot. What were you suggesting by that?---That he was staring a bit more than he should and that that shouldn’t happen. That officer shouldn’t have to stand there and watch you, and he wasn’t standing outside the door, he was inside the door and the showers inside Don Dale. The cubicles don’t even have doors on them, so you can’t close the cubicle door.

When you’ve said in paragraph 181 you were “not necessarily suggesting”, what do you mean by that?---To clear it up, so that I wasn’t trying to make any unnecessary suggestions towards this officer, but in context, it does feel uncomfortable being watched while you’re trying to wash yourself or have a shower.

Well, if you were trying to clear it up, you could have just said that he wasn’t intending to stare at you for a sexual reason. Why have you qualified what you’ve said with the word “necessarily”?

MR O’BRIEN: Well, I object to that. The – Mr Voller is obviously being fair to this particular officer. He can’t know what’s going on in the officer’s mind.

COMMISSIONER WHITE: No. That’s correct. I accept it.

MS BROWNHILL: Then he can answer the question if that was his intention. It’s his words. My question is what did he mean by saying “I do not – I was not necessarily suggesting” a certain thing.

MR O’BRIEN: He has answered that question.

MS BROWNHILL: No, he hasn’t.

COMMISSIONER WHITE: I’m not sure that he has fully.

Could you try and answer Ms Brownhill’s question about what you meant when you wrote in your supplementary statement that:

I wasn’t necessarily meaning that the Youth Justice Officer was staring at me in the shower for a sexual reason.

?---Exactly as my lawyer just said. I’m not a 100 per cent sure what’s going on in his mind or what he’s thinking and we do - - -

Thank you?---And just one more thing, we do know that that officer is [REDACTED]..

MS BROWNHILL: Well, those answers suggest, Mr Voller, that you are at least keeping in your mind the possibility that he could have been staring at you for some sexual reason.


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MR CALLAGHAN: I object to that. It doesn’t follow at all.

COMMISSIONER WHITE: No.

MS BROWNHILL: Well, again, he can answer the question that’s being asked.

MR O’BRIEN: It’s not a fair question. I also object.

MS BROWNHILL: Mr Voller, you’ve mentioned - - -

COMMISSIONER WHITE: Hasn’t he answered the question by saying he really cannot say what is in his mind? In other words, he may very well everybody doing it for that purpose, but that’s about – against the background that explains why he used that expression.

MS BROWNHILL: I will move on, Commissioner.


MS BROWNHILL: Mr Voller, your supplementary statement at paragraph 167 – I note the time, Commissioners, what’s the proposal in terms of - - -

COMMISSIONER WHITE: Stopping for lunch.

MS BROWNHILL: Yes.

COMMISSIONER WHITE: Yes. Mr Callaghan, the video link obviously will be churning away, but people do have to take – sensibly take a break. We could take a shorter luncheon adjournment, if that would be sensible for everyone?

MR CALLAGHAN: Yes.

MS BROWNHILL: I have no difficulty with that, either. I’m content to press on. I’m content to break now.

COMMISSIONER WHITE: Well, we have to take a break sometime, so since you’re going on to a fresh topic, I think we might just as well take the break now. If we return at, say, 20 to 2.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Making it a 40 minute break, would that be satisfactory for people’s arrangements?

MR CALLAGHAN: Yes.



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COMMISSIONER WHITE: Mr Voller and Ms Goodhand, we will take the luncheon break now but, in the interests of keeping going, we will resume at 20 to 2. Is that convenient at your end?---Yes.

MS GOODHAND: Thank you, Commissioners.

COMMISSIONER WHITE: Thank you. Alright. If you could adjourn, then, until 20 to 2.

ADJOURNED [1.03 pm]

RESUMED [1.49 pm]

MS BROWNHILL: Before I proceed asking Mr Voller some more questions, can I just note for the record the other document that I forgot to refer to by the number that I indicated, for some questions I asked earlier, so it’s numbers 33 and 34 ..... index that we have.


MS BROWNHILL: Mr Voller, I wanted to go to paragraph 167 of your second statement?---I have that.

Okay. That’s a response to Mr Tasker where in his statement at paragraph 17 he had set out some incidents as examples of your behaviour. See that?---Yeah.

And what you say is that you don’t accept the way that he has described each of those incidents. You say they’re not entirely accurate in each instance, but you go on to accept that you would not only act out, that you were very difficult to manage and control, and that you were difficult and could be verbally and physically aggressive. Now, I wanted to ask you some questions about some of those things and that behaviour. While I’m at this point in your second statement at paragraph 170, you also make reference to Mr Tasker’s statement, paragraph 20, where he describes incidents of your at risk behaviour, and you say in that paragraph that he’s accurately or correctly described those incidents. Do you agree that’s what you’ve said?---I’m just reading that paragraph.

Sorry. Take your time. So in the second sentence of that paragraph is what I’m alerting you to?---Yeah, I can read that.

So what you meant there was that what Mr Tasker had described about those at risk incidents was accurately described. Have I got that right?---Have you got Tasker’s here? Because I can’t remember everything that he said. Just trying to – yeah – I’m


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just trying to bring Tasker’s statement up, because I can’t remember everything in his statement.

Well, what I’m asking you about is what you meant then by the words:

I believe that each of these incidences are correct.

After referring to paragraph 20 of Mr Tasker’s statements?---And what I’m saying is that I need to read Tasker’s statement at paragraph 20, because I can’t remember every paragraph, as I’ve had a read a lot of statements.

Well, if you need to look at the paragraph, please do so.

MS GOODHAND: Is it – sorry to interrupt, is it possible to bring it up on the screen?

MS BROWNHILL: I’m sure that’s possible.

COMMISSIONER WHITE: Can I just query why, since he signed his statement, he has made the statement – I’m not sure why you want him to - - -

MS BROWNHILL: I want him to confirm - - -

COMMISSIONER WHITE: - - - confirm it.

MS BROWNHILL: Well, perhaps I’ve misunderstood and because he wants to look at the paragraph again maybe I have misunderstood that he was accepting that what Mr Tasker said was correct.

COMMISSIONER WHITE: Well, that’s what he says.

MS BROWNHILL: I know.

COMMISSIONER WHITE: I just wondered why you needed to ask him again, that was all. If he’s sworn that’s the case, isn’t that the case?

MS BROWNHILL: Well, I hope so, yes.

COMMISSIONER WHITE: I don’t see where there’s a lot of wiggle room there, but - - -

MS BROWNHILL: Well, we await an answer?---Okay. Could you please repeat the question again.

When you’ve said in the second sentence of your paragraph 170 that you believe that each of these incidences are correct, what you’re saying is you agree with what Mr Tasker has described about those incidences?---What incidents is she talking - - -


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MS GOODHAND: So if I might, Mr Tasker’s statement has now come up on the screen at this end.

THE WITNESS: But which incidents are you talking about?

MS BROWNHILL: I’m asking you which ones you were talking about. I presumed paragraph 170 refers to Mr Tasker’s paragraph 120 which contains those four dot points that are on the screen.

MS GOODHAND: So, sorry, it’s paragraph 20 that’s showing on our screen, and I think - - -

COMMISSIONER WHITE: I think this has just got incredibly muddled and it’s unnecessarily so, Ms Brownhill, really.

MS BROWNHILL: Well.

COMMISSIONER WHITE: I mean, if you want to explore it further, by all means do.

Mr Voller?---Yes.

On the screen now are the matters that were referred to by Mr Tasker, and you said in your second statement that you believed that they were correct. All Ms Brownhill is asking you to do is to confirm that indeed you agree that that’s a correct description of the things you would do?---Yes. So yeah, I agree.


In paragraph 31 of your second statement, Mr Voller, you say that you recall throwing urine on YJOs on a few occasions. Do you have that?---Which paragraph was that, sorry?

Paragraph 31?---Yeah. I’m reading that.

Okay. What I wanted to ask you firstly is what you mean by “a few.” Can you give an indication of the numbering?---I think two.

So you say you only threw urine on YJOs twice?---Yeah. From what I can recall, yes.

When you did that, the way you did it was by keeping a cup of water or a bottle of water and then – sorry, a cup or a bottle that was given to you for water, then urinating in it, and then throwing what was in the cup or the bottle at staff. Do you accept that?---Yes.


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And in addition to actually throwing urine at YJOs, you also threatened to do so on a number of occasions. Do you agree with that?---I can’t remember that, not on a number of occasions. I think there was once or twice on those incidents where I did do it, but I can’t recall on a number of occasions.

Alright. You were also found on other occasions to have urine in cups in your room. Do you agree with that?---Yeah, I do agree with that.

And that happened on a number of occasions as well?---I wouldn’t say a number of occasions. A few times, yes, but not a number.

So a few meaning two, like you meant the last time?---I think maybe sometimes they did find cups of urine in my cells, a few other times where I didn’t have a toilet in my room and I pissed in those cups or urinated in those cups. There might have been a few more times.

All right. What I seek to have tendered later are the documents at tabs 61 to 67 and 68 to 72.

Mr Voller, deliberating urinating in a place that wasn’t a toilet was a thing that you did when you were trying to get your own way; do you agree with that?---I deny that allegation.

You deny it, do you?---Yep.

Can I take you to paragraph 31 of your second statement and in that paragraph you’ve said:

I do remember on one occasion being driven back from Darwin Hospital and recall urinating on a seat. I did this because I did not want to be taken back to Don Dale and I was desperate to be allowed to stay at the hospital.

So that’s an incident of the very - - -?---Yeah.

- - - sort of thing I described, isn’t it?---Yeah, that’s one occasion. Not a number of occasions.

I never said “a number”. I asked you if you did it?---Yeah, I did it that once.

Alright. Can we have the document at tab 19 brought up on the screen?---And I - - -

Please – I’m sorry?---But you just said that was a normal thing for me to do. That wasn’t a normal thing to get my own way.

Mr Voller, what I said was it was a thing you sometimes did when you were trying to get your own way?---Yeah.


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And you denied that; remember?---Yeah, I did that once. So my apologies.

Alright. What I’ve asked for now, please, is the document at tab 19 of the index. Can you see that incident report, Mr Voller?---Yeah, just the top.

So it’s dated 16 March 2011?---Yep.

And if we can scroll down, please. Feel free to have a look if you want to refresh your memory about this, Mr Voller, but it describes a time at the Alice Springs – or at Aranda House?---Yeah.

MR O’BRIEN: Can I just rise to object at this point. This is one of the documents we have objected to. We have objected to a number of documents in writing, those objections were provided to the Royal Commission and I – as I understand it, to the Territory government’s representatives on Monday of this week, and - - -

MS BROWNHILL: Commissioners, I will approach it another way. If my friend has an objection about the document, I will put some propositions to Mr Voller.

COMMISSIONER WHITE: Very well. Thank you.


MS BROWNHILL: Mr Voller, I’m going to put some propositions to you and ask you whether you agree or disagree that these things happened; okay?---Yes.

On 16 March 2011 you were at Aranda House. Do you agree or disagree?---I agree I could have been there in 2011, yes. Yeah, I do agree.

And at about 5 o’clock in the afternoon you were in a room, you started tapping on the window of your room?---I can’t remember if I was on a placement or if I was doing that.

The Youth Justice Officers that were present covered the window of your room with some paper and while they were doing that you threatened youth justice worker Tasker saying:

When I see you in the street I’m going to spit in your face, you fat white C. I’m going to rape your wife and your granddaughter when I get out of here.

Do you agree that happened or not?---I can’t remember that incident.

At about 5.25 in the afternoon, you were taken some dinner and that consisted of two sausages and some scrambled eggs on a paper plate. Do you agree that happened or not?---As I say, I can’t remember this incident.


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Well, listen to the propositions that I’m putting and if you can remember any of them, you can indicate that; okay?---Yep.

When you were provided with that dinner you broke up one of the sausages and threw it at the camera and around the room. Do you agree or disagree?---I don’t remember.

At about 5.30 in the afternoon you then squashed the sausage up and jammed it under the bottom of the observation room door. You agree or disagree?---I don’t remember.

You were then seen doing some graffiti on the wall with a pencil, and you were asked to pass the pencil under the door. Do you accept that that happened or not?---I don’t remember.

Staff then entered the room to take the pencil away from you, and as they exited you attempted to spit at staff. Do you agree that that happened or not?---I don’t remember.

You threatened to rape the children of the staff that were present and their grandchildren, and you specifically threatened to burn down Mr Tasker’s house with his family inside. Do you agree that that happened or not?---As I keep repeating, I don’t remember.

You were later seen to be naked in the room at about 6.30 in the – the next morning and lying on the bed, and you had put your at risk gown in the toilet?---I don’t remember, as I keep saying.

You were then seen to stand up and urinate on the floor?---I don’t remember this particular incident, as I keep saying.

COMMISSIONER WHITE: Well, there might be some aspects of it which were a bit unusual, Mr Voller. It might jog your memory, so that’s why all of these questions are being put to you. Sometimes it might bring something back to you – to your memory?---Yep.

MS BROWNHILL: Your bedding was later taken out of the room and during that – the removal of that bedding, the youth worker saw some faeces on the floor around the toilet. Do you agree that happened or not?---No, I don’t remember.

You had then put the at risk gown on the floor and were lying naked on top of it.

MR O’BRIEN: I object to this. I object to this, Commissioners. I mean, Mr Voller has, through the course of his evidence on the last occasion, through the course of documents that have been submitted and under his own hand in statements sworn to this Royal Commission accepted, and I have even put to witnesses, that this young fellow was very troubled, that he had lots of difficulties, that he was behaviourally


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very difficult to control. I mean to put these allegations one after another after another when he was 14 years of age, it’s just really scandalous. It’s designed to just destroy his reputation in the eyes of those - - -

COMMISSIONER WHITE: I ask you to – I ask you to withdraw that expression: scandalous.

MR O’BRIEN: I withdraw scandalous. I suggest to you it is totally unnecessary, it is designed to humiliate and embarrass the witness, and it is not going to assist this Commission in determining what happened on these events that he has complained about. It’s not going to do that. There hasn’t been one single question yet about any of the incidents that he has complained about that we’ve seen videos about, that we’ve heard about the use of force, not one single incident has been asked in the passage of questioning thus far. All we’ve heard is how he behaved at school, how he behaved at the Don Dale school, and now it appears how he behaved on a cell, occasion and occasion.

I can just imagine, because we’ve got so many documents and referred to so many, that they intend to take him through as many and the most salacious of them. It’s unreasonable, please, Commissioner. It shouldn’t be allowed to continue. What is the point of it?

COMMISSIONER WHITE: Thank you, Mr O’Brien. Would you like to respond?

MS BROWNHILL: Commissioner, the – Mr Voller has made numerous allegations about his treatment in detention. In order to understand that treatment and to understand the actions of Youth Justice Officers in relation to it, it’s necessary, in our submission, to understand his behaviour and the extreme nature of that behaviour. Mr Voller was offered the opportunity to indicate whether he sometimes urinated deliberately. He denied that. He then was pointed to a particular incidence in his own evidence. He accepted it. This is another instance of that kind of thing. As I said yesterday, Mr Voller’s credibility as a witness is apparently in issue and that’s what I’m exploring.

None of this material is designed in any way to humiliate or otherwise make Mr Voller’s life difficult, but Mr Voller has characterised his own behaviour in a particular way which, in our submission, is a gross understatement and in order to appreciate the evidence that the Commission has heard about his treatment in detention, the Commission needs to appreciate and understand the nature of the behaviour that was being dealt with.

COMMISSIONER WHITE: I think I understand your submission. Mr O’Brien, in response to Mr O’Brien’s objection, I certainly don’t accept that it’s the purpose of the questioning to humiliate Mr Voller. I certainly would absolve you from that. We accept also that it is important to understand the context in which the Youth Justice Officers and the system and the school teachers were attempting to manage this young man, both as a child and as a young adolescent, and we understand that unless


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we have some understanding of the detail of the day-to-day difficulties that these largely untrained officers in this field were facing, we won’t appreciate it. On the other hand, I would think that it would be unnecessary to explore every occasion of difficult conduct. Once the flavour of it - - -

MS BROWNHILL: I don’t propose to do that. I don’t have the time.

COMMISSIONER WHITE: Once the flavour has been given, and this would seem to us to be a good enough example of the flavour, then I suspect you’ve done that, and we would not encourage too much of this. Thank you.

MS BROWNHILL: I understand, Commissioners, and I will go to the end of the report if I may, in the same way, and then simply seek to tender numerous other documents which contain similar kinds of references.


MR O’BRIEN: We’ve noted our objection, put it in writing. I don’t need to be heard.

COMMISSIONER WHITE: Yes. Thank you. We’re going to deal with all of those after the evidence is concluded.

MR O’BRIEN: Thank you, Commissioner.

MS BROWNHILL: So, Mr Voller, my proposition to you was that during the removal of your bedding from the room youth officers saw faeces on the floor around the toilet and my question to you is whether you agree or disagree that that occurred?---I don’t remember this happening.

And lastly, at about 10 o’clock that day when your at risk gown was put in the washing machine by a Youth Justice Officer, some faeces fell out of the gown and onto the floor in the courtyard, and you - - -

MR O’BRIEN: I object again. The same ground is raised as I raised a moment ago. It’s just unnecessary. It is designed, I say, and I repeat, to humiliate this man.

COMMISSIONER WHITE: Well, Ms Brownhill, of course Mr Voller can only, if he can recall, talk about whether he deposited the product there, but he can say nothing about what happened when it was removed. So it does seem to be at the bottom end of the usefulness.

MS BROWNHILL: Not quite, with respect, Commissioner, because Mr Voller was then given a pair of gloves and a plastic bag and told to clean it up. So that’s my next part of the question.

COMMISSIONER WHITE: Can he recall it?


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MS BROWNHILL: Can you recall or do you agree or disagree that you were given a pair of gloves and a plastic bag and instructed to clean up the faeces on the floor?---I don’t remember it happening.

COMMISSIONER WHITE: You don’t recall any – did it happen – can you recall it happening at all to you, that sort of request?---No. No.

Thank you.

MR O’BRIEN: Can I rise to make this observation. He was in an at risk gown. He has just threatened to kill himself. He is at a stage in life at this time - - -

MS BROWNHILL: My friend can make a submission in due course - - -

COMMISSIONER WHITE: Yes. I think - - -

MS BROWNHILL: - - - about the nature of the evidence or its weight. I am on a time clock.

COMMISSIONER WHITE: I think it is a submission you’re making, Mr O’Brien. You’re moving on from this document.

MS BROWNHILL: I am.

COMMISSIONER WHITE: And the flavour has been got.

MS BROWNHILL: Well, I’ve asked Mr Voller about deliberately urinating. I also want to ask Mr Voller whether deliberately defecating was also something he did or threatened to do from time to time.

THE WITNESS: Not – not – only the time I was in the car and I had no choice or if I had no choice, I did in the pillow case. I had no choice to go to the toilet. It’s not something I do for the fun of it.

MS BROWNHILL: Okay. Now, can I move on then to a different topic which is in your first statement, paragraph 127. Have you got that paragraph, Mr Voller?---Yes, I do.

So you say that spit hoods were used on you so many times that you lost count and you say you don’t think they used spit hoods on you until about 2012?---Yeah, around then, yes.

So I take it from that that you’re saying that – sorry, I withdraw that. In 2012, are you able to remember when it was that they first started using spit hoods on you?---No, I can’t remember exact dates, no.

But you say it was sometime in 2012?---Yeah, around then.


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Okay. Can I ask you to – or to be – I don’t know if you have the annexures to your statement there, do you, Mr Voller.

MS GOODHAND: We have them on a computer, so I can pull the annexure up if you identify which one.

MS BROWNHILL: Yes. It’s annexure DV26.

MS GOODHAND: Is that the medical report?

MS BROWNHILL: It’s a report by Dr Kasinathan.

MS GOODHAND: We have that.

MR O’BRIEN: This document, I rise to alert my friend, and potentially objections, a very confidential document about my client’s present and past mental state. If he’s to be cross-examined on it, it raises real concerns as to what we’ve told the Commission about the vulnerability of Mr Voller now and when he gave evidence earlier.

MS BROWNHILL: I didn’t appreciate that the document had a confidential status. I do want to ask Mr Voller about something he told the doctor which is reported in the report. I can make a submission, probably not in a public forum, about why I want to do that and I wouldn’t want Mr Voller to be privy to that submission either.

COMMISSIONER WHITE: Can we leave it to the end. It’s such a business to close – we could go somewhere else and do it, of course. So we could – you could – we could adjourn and you and Mr O’Brien and Mr Callaghan could come .....

MS BROWNHILL: I’m happy for - - -

COMMISSIONER WHITE: - - - that group.

MS BROWNHILL: However that’s arranged or organised, I would appreciate - - -

COMMISSIONER WHITE: I’m trying to do it without us having to close down the video link and all of those things. So do you want to do it now?

MS BROWNHILL: No. I can – sorry, I can leave it to the end, if that’s convenient.

COMMISSIONER WHITE: Alright. Thank you. We can manage it that way then, so there’s no need to think in terms of the breaks and so on.

MS BROWNHILL: Yes. Thank you.

COMMISSIONER WHITE: If you’re happy to do that.


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MS BROWNHILL: Sorry about that Mr Voller, I will move to another paragraph if I may?---Yeah.

The next paragraph, 128 of your statement. So you’re talking about spitting on “them”, which I take to be a reference to be spitting on Youth Justice Officers?---Yep.

And you said that you did that as a defence mechanism when you were being restrained? You see that there in your statement?---Yeah.

And by that, did you mean when you were being either held down on the ground or held physically by officers. Is that what you meant?---Yes. I also did it when they would push my legs and try and exit the room, as I was angry, and I couldn’t control it. There’s no denying that I did spit on officers.

Yes. Well, I wanted to explore with you that very thing, because you’ve said you did it as a defence mechanism when you were being restrained. Similarly, in your oral evidence when you were asked about it – it’s transcript 701 at line 15 – you said that it would be a time of panicking because you’ve got three or four different officers holding you down, etcetera. And what I wanted to put to you was that you also spat on people at times when you weren’t being physically held down or restrained. I think you agreed with me?---Yeah, I would agree with that, but it wouldn’t be for no reason and there’s no excuse for my spitting, but I did do it sometimes when I was being tormented or I was extremely agitated and angry.

Alright. Well, do you agree that in 2010 you spat on a nurse who was coming to assess you for self-harm?---I don’t remember that, no.

Don’t remember doing that?---No, actually my recollection, I don’t think I did.

Alright. Do you remember in – also in 2010, that you spat on youth justice – Youth Justice Officer De Souza when he was letting you out to go and have a shower?---I think I did spit on Mr De Souza, yeah.

And you also spat on him on the same day when he took you out to make a phone call and brought you back?---I can’t remember what happened that day, but I do – I don’t remember spitting on him twice, but I do remember spitting on him on an occasion, yes.

Okay. And what about spitting on other detainees? Do you accept that you did that from time to time?---No. I don’t accept that.

Okay. So you don’t recall an occasion in 2011 when you spat on another detainee while he was having a shower?---No, that didn’t happen.


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Okay?---I did go to court for it, and I pled guilty because I had no option but just to plead guilty, and I told the guards what happened in there, and they didn’t take into account what really did happen in that bathroom.

I see. Do you agree that you have also spat on officers who were bringing you food from time to time?---Yes. I think I have done that, but there’s a lot more reasons than why – just bringing me food.

Just excuse me for a moment. Mr Voller, can I move to a different – sorry, I indicate which documents I would like to be tendered. It is the documents at tabs 35 to 45.


MS BROWNHILL: So, Mr Voller, in paragraph 131 of your first statement - - -?---Yeah.

- - - you’ve talked about an officer who “always used to do a hog tie on me”. You see that?---Yep.

And you’ve said:

The hog tie was when the officer would put your hands behind your back, put your legs behind your back. And then your legs and wrists were handcuffed.

?---Yeah.

Now, that officer has denied that allegation and then in your second statement you’ve responded to that, paragraphs 193 to 195, and what you’ve said is that when you said “always” you didn’t actually mean every time he dealt with you. And then you’ve said – when you’ve said – when you described the hog tie as handcuffing your legs as well as your hands, that wasn’t common. That’s in paragraph 194. Do you see that?---Yeah, what I meant was mainly when the hog tie position would come, your arms would get handcuffed behind your back but always would your legs be handcuffed. They’d mainly put all the weight onto your legs and push them towards your back.

That’s not what you said in your original statement at 131, was it, when you talked about your legs and wrists being handcuffed?---It might have just been a typing error.

You think that’s a typing error, do you?---Yeah, or miscommunication.

Okay. Because it seems a bit like you’ve changed your evidence in a couple of important respects there.

MR O’BRIEN: I object to that. He’s clarified what he meant by the term and in the cross-examination he has simply explained what exactly he was talking about in


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relation to hog tie. It’s – I don’t think it necessarily flows that there’s a deliberate attempt to mislead anyone.

COMMISSIONER WHITE: Mr O’Brien, Ms Brownhill is entitled to press him on this point.

MS BROWNHILL: Thank you, Commissioner.

Do you want me to ask the question again, Mr Voller?---Yep.

It seems like what you’ve done in your second statement is to change your evidence in two important respects. Do you agree with that or not?---No. I ..... that it’s been put there, but I’ve tried to fix it and put it how it was, but it – that’s how it is.

What you’ve said?--- ..... what a hog tie was.

I’m sorry, I didn’t catch that?---I’ve clarified what the hog tie was, but it did happen sometimes that your legs would get handcuffed, but the normal hog tie would be to get put on your stomach, handcuffed to your hands and your legs pushed very hard towards your back.

So what you’ve said in paragraph 131 is not true, at least in those respects, isn’t it?---Yes, to – yes, but I clarified that in my second statement.

Yes. Can I take you to paragraph 159 of your first statement. You say in the third sentence there that, “One time you covered the camera and flooded your cell.” Do you see that?---Yep.

Do you agree or disagree that you flooded your cell on more than one occasion?---I agree.

And Mr Palu has given a statement in response to what you’ve set out in that paragraph, and I just want to put to you some of the things he says to see whether you agree or disagree about what’s – what he says about the events of that occasion. You with me?---Yes, I understand.

Alright. So he says that on 8 May 2015 you tore a strip from your at risk mattress and tied it around your neck. Do you agree that that happened?---Yes, I do agree.

And he says you were seen lying on the floor and you appeared to be unconscious?---Yep.

Youth Justice Officers came into your room, checked your breathing, and put you in the recovery position. Do you agree that happened?---Yep.

And then as they were taking the mattress out of the room you jumped up and became abusive and threatening towards them?---Yes. After they cut the sheet from


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around my neck and I got my breath. I didn’t get up straightaway. I ..... for up to a minute and yes, I did get my breath back and then I broke down and I got up. I was in an emotional state and I was angry, but yes, I did get up.

And you say that happened after how long?---Probably a minute and a half, a minute.

Okay. Once you leaped up and you were threatening the officers, they ground stabilised you so that they could leave the cell. Do you agree that happened?---Yes.

And then about three hours later you were found in the cell with material that you’d torn from the at risk shorts from around your neck. Do you agree that that happened?---Yep.

So they took the material again from around your neck?---Yes.

And medical was called?---Not sure if medical got called but, yes.

The nurse came soon afterwards?---I don’t remember seeing the nurse but if that’s what it says, then it must have.

Okay. And the nurse thought that you were in good health and there was no need for an ambulance. Do you remember that?---Like I said, I don’t remember the nurse but if that’s what it says, then yeah.

Alright. And in your second statement, paragraph 153, you say that the officers took your shorts and the mattress that you had torn out of the room because – well, you believed that they did this to humiliate you?---I do believe that that was one of the reasons, as well as punishment, and as well as they have done that on a number of times, taken my clothes out and left me in there naked to humiliate me. At that stage I was in a suicidal state of mind and I felt no good. Why couldn’t someone sit down and talk to me?

But you don’t think they took those things out because you had used them to tie around your neck and then you were found unconscious on the floor?---Well, they could have made a lot more efforts rather than taking clothes out. One of them could have made an effort to see how I’m feeling and see what I’m doing, but no one did make that effort.

Well, that’s not really what I’m asking you. I’m asking you about whether or not you think that the officers took those things away to humiliate you, as opposed to properly responding to the fact that you had tied them around your neck?---Are you talking about the first incident or the second incident because - - -

Both of them?---Well, the mattress is already out and everything is already out on the second incident.


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Doesn’t really come to grips with my question, Mr Voller. Do you want me to ask it one more time?---No. I do believe that was done to humiliate a bit and maybe a part, I don’t see that they cared, so I don’t think that they were taking it out to help me.

I see. Alright. Can we go then to paragraph 204 of your – so it’s 204 of your first statement?---Yeah.

Now, in that paragraph you talk about, and you name three individual officers. You see that?---Yeah.

Prison officers?---Yep.

And you give some evidence about things that you say they said to you about what would happen when you went to adult jail?---Yep.

And you say they said, “You’re gonna get raped and bashed”?---Yep.

And, “You’re gonna be someone’s bitch when you get to the adult prison”?---Yep.

Now, those officers have denied that and they’ve explained that you asked them questions about what adult prison would be like, and you asked if you might be raped or bashed in prison?---I think I - - -

And then you’ve got on a responsive statement, or your second statement in paragraph 62 says you stand by what you said in your earlier statement. What I wanted to ask you is what do you mean by saying that you stand by what you said? Are you denying - - -?---I just - - -

- - - that you had those conversations like one of the officers, Mr Dean sets out in his statement, or are you accepting that you had those conversations but you characterise them in the way that you originally described?---No. Mr McGee and Mr Dean did say these things to me, and I stand by this.

So it’s your evidence that they didn’t – sorry, that you didn’t ask them questions about what might happen to you?---Through that time, yeah, I asked them one question after they kept saying I was going to get raped, I was going to get bashed, I was going to be someone’s bitch, the workers over there, there’s no cameras, it’s a lot different. If I behaved like I did at Don Dale I would be taken out to a back cell where there’s no camera and I would be bashed and I got scared. I did start asking them questions if that was really true. Wouldn’t you start asking questions if you kept getting told that every day and you started getting anxious knowing you’re going to go to a place like that?

What I wanted to clarify is whether you were accepting whether the officers had conversations with you after you asked questions and you seem – your evidence appears to be no?---No. I asked one question after about three days of putting up with being told I was going to get raped and bashed and ......


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Being told by those particular officers?---Yes.

Okay. Alright. Now, paragraph 209 of your first statement, have you got that there?---Yep.

In that paragraph you say, “I remember a time when YJOs – “ and then you name four people or four names?---Yes.

“And some others were doing hospital runs and they took photos of us in our handcuffs and put it on Snapchat for their friends to see”, saying something like, “look at these crims here”, you see that?---Yes.

And then in your second statement, paragraph 93, you now say that the last two names are actually one person?---Yep.

And then in paragraph 96 of your second statement you now say that on one occasion that person showed you a Snapchat photo – Snapchat photo – of you in a vehicle with the caption, “Look at these crims here”?---Yeah.

So what you initially said had been done by four named people is now said to have been done by only one person and a differently named person. Do you agree with me?---Yeah, I do agree that that’s what’s happened here, yes.

So what you now say means that what you said in 209, at least in relation to Mr Zamolo and Mr Palu, is just untrue, isn’t it?---To a certain extent, but Mr Zamolo has taken Snapchats of myself as well.

Well, each of the officers that you referred to has denied your allegation and in response to Mr Palu’s denial at 155 of your second statement, you’ve essentially said something completely different to what you first said, namely:

I recall the guards taking Snapchat photos of me. It was mainly YJOs.

Then you name a completely different officer altogether. You see that?

MS GOODHAND: Sorry, just can you clarify on the screen, we have 154. Can you clarify which paragraph you’re referring?

MS BROWNHILL: 155. So you talk about guards taking photos of you and you say it was mainly a different guard, John Walton, plus Mr Zamolo, and Mr Curwen.

COMMISSIONER WHITE: It’s one different one, because he uses the first name in 209 for Mr Zamolo, surely.

MS BROWNHILL: I understand that, yes.


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What I mean is there was a brand new person involved?---Yeah. Well, I apologise that that name has popped up, but it’s pretty hard to say exactly names when you’ve got a whole group of them walking round with his phones all the time taking Snapchats and taking photos of people.

Alright. Can we go to paragraph 249 of your first statement. Now, you had initially identified one Youth Justice Officer in that paragraph and you’ve now changed that in your second statement to be a reference to Mr Tasker. You accept that?---Yeah. Yep.

But what you say about Mr Tasker is that you understand that he has family members that have outlaw bikie associations. You actually believe that, do you?---Well, if he sits around telling us, why wouldn’t we believe something he said?

So you say that the reason, or the basis for your belief, is that he told you that?---Yep.

You haven’t identified the source of that information in the paragraph, have you? You just said “I understand”.

COMMISSIONER WHITE: In the next sentence, Ms Brownhill.

MS BROWNHILL: There’s no reference in the next sentence to outlaw bikie gangs. So let me just clarify that, Mr Voller. Are you saying Mr Tasker said to you, “I have family members that have outlaw bikie associations”, or are you saying that Mr Tasker said to you, and other detainees he had guns at home?---He said both before, on a number of occasions. He’s also said, “If you break into my house, I’ve got double barrelled shotguns, and if you come to my house I’ve got dogs, or if you come near me, or if you see me on the street I will do this and that.”

So you’ve seen Mr Tasker’s response in his statement at paragraphs 48 to 53 where he has made references to his family.

MS GOODHAND: Sorry, Mr Voller has just asked is that possible to bring that up on the screen.

MS BROWNHILL: Yes. Exhibit 290. Paragraphs 48 to 53. So you’ve seen that response. My question is: do you still believe that Mr Tasker has outlaw bikie associations?---How am I supposed to know? I just went on what he told us.

I see. Alright. Mr Voller, your supplementary – sorry, your second statement, paragraph 138. I’m told Mr Voller’s seeking a short adjournment, Commissioners, which - - -

COMMISSIONER WHITE: We can do that.

MS BROWNHILL: I don’t have any problem with that, of course.


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COMMISSIONER WHITE: Right. Thank you. Yes, we will take a short adjournment then. Would this be a useful time to deal with the issue that you want to raise? We can do it, because Mr Voller will be out of the hearing room.

MS BROWNHILL: Yes.

COMMISSIONER WHITE: You’re free to take the break, Mr Voller. We will stay here. We’ve got something we need to deal with. Thank you.


COMMISSIONER WHITE: Ms Brownhill, is this something that actually must be dealt with confidentially?

MS BROWNHILL: I think so, because I want to go to the content of the - - -

COMMISSIONER WHITE: Alright. We will adjourn then and invite you to come – you and Mr O’Brien and Mr Callaghan to come up to the retiring room behind. Thank you.


COMMISSIONER WHITE: Could you just adjourn.

ADJOURNED [2.42 pm]

RESUMED [3.09 pm]

<DYLAN JAMES VOLLER, RECALLED [3.09 pm]

COMMISSIONER WHITE: Thanks, Mr Voller. Well, we had a longer break than was anticipated. We had a number of matters to resolve. So Ms Brownhill will continue to her questions now. Thank you?---Yep.

<CROSS-EXAMINATION BY MS BROWNHILL [3.09 pm]

MS BROWNHILL: Mr Voller, the next thing I wanted to ask you about is what you’ve called incident 5 in your first statement. So it’s the incident on 4 October 2011, and specifically in relation to paragraphs 281 to 283 of your first statement.


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Just have a quick look at those to refresh your memory ..... I will take to you what you’ve said in your second statement. So you’ve seen those?--- ......

And Mr Morton has put on a statement in response to what you’ve said about those matters and, in response to his statement in 138 of your second statement, you say:

The video speaks for itself. I cannot recall any specific detail of what happened prior to being placed in the cell.

You see that?---Yep.

And when you gave your oral evidence in December, you said a similar thing. The footage was shown and you told the Commission you couldn’t remember what the argument between you and the other boy in the classroom was about?---Yeah – yeah.

And what was said to you or what was said by you. Do you remember giving that evidence?---Yeah.

So that’s 703 and 704 of the transcript, for the record. Now, what you said in 281 of your first statement is:

When it came up to my turn, the boy before me handed the controller to someone else. This made me very angry and I said to him that I would punch him in the face. I then had a brief physical fight.

So it appears that when you sign your first statement on 25 November you could remember the details, but you couldn’t remember them by the time you came to give your oral evidence on 12 December. Do you agree with that?---Yep.

Do you remember the details now?---Bits and bits, memory blank, but yeah, bits of it.

Do you have any explanation for why you could remember them in November, but you can’t remember them – you couldn’t remember them in December or now?---No – no reason, just couldn’t remember it. There’s no explanation.

So - - -?---I guess by looking at the video.

I’m sorry?---I guess by looking at the video and looking at this, and I guess some of it comes back, and sometimes you just remember certain things.

But what you’ve said in 138 is that you’ve – is that the video speaks for itself, and you still can’t recall any specific detail?---Well, the video does speak for itself. I did assault another person.

So you’ve got no explanation for the way you’ve remembered things. You could remember in November but you couldn’t remember in December?


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MR O’BRIEN: Well, that has been asked. We don’t have to press the point.

MS BROWNHILL: Does your lack of memory about the details mean that in relation to Mr Morton’s incident report, you can’t really say one way or the other whether what he has recorded is correct?

MR O’BRIEN: Can the witness be shown Mr Morton’s report and the portion of it which is said to be correct or otherwise?

MS BROWNHILL: I’m not suggesting that anything is correct or incorrect. What I’m asking Mr Voller, and certainly he can be shown annexure A to the statement of Ashley Morton, dated 30 January, to which he has responded in his second statement. My question is simply whether his inability to remember the details mean he can’t – means he can’t – can or can’t confirm one way or the other that what’s in that incident report is correct?---Well, it’s kind of hard to remember the little things that lead up to it, but the incidents themselves are a lot easier to remember because it’s traumatic and it stays with you, so it’s a bit easier to remember the incidents themselves but – than to remember what words get exchanged to those little things.

MS GOODHAND: Okay. So annexure A has come up on the screen.

COMMISSIONER WHITE: Yes. It is there now, Ms Goodhand, and it’s the opening first two paragraphs, I think. So perhaps they could just be made a bit larger.

MS GOODHAND: Thanks.

MS BROWNHILL: First three paragraphs, I think. Well, four, in fact, because the critical factor is in paragraph 4.

COMMISSIONER WHITE: Yes. Sorry. Yes.

MS BROWNHILL: So Mr Voller, have a look at those first four paragraphs. And then tell me whether you agree or disagree or you can’t remember with what’s in – about what’s in those paragraphs?---I can’t remember if that’s exactly word or word, but I do use some foul ..... and I have probably said some words to that effect, yes.

Okay. And in particular do you agree that you then stated you were going to hang yourself and were placed at risk?---It could have occurred, yes.

Just excuse me for a moment. Thank you. Now, your first statement at 285 then talks about what happened once you were in the isolation cell, and I think you say in paragraph 284 that your lawyers have shown you the CCTV footage showing you in the cell. So - - -?---Yes.


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- - - do I understand that to mean that what you said in your statement was prepared on the basis of what you had seen in the footage?---Yes, and as I said before – I know what you’re getting at, the names are typing errors again.

Okay. So your second statement, I think, talks about a misidentification of the officers referred to in paragraph 285. What I wanted to ask first is: how did you figure out that there had been a misidentification? Was that – I mean, did you watch the footage again or did you read Mr Briers’ statement? How did that work?---Yeah, and by reading through his statement again, I seen the names were in the wrong spots.

I see. So in your second statement, paragraph 9 I think it is, you say that it wasn’t Mr Bryers that grabbed your neck, it was Mr Morton?---Yeah, that’s correct.

And then you say that Mr Bryers took hold of your left arm. You see that? Have you got that paragraph, Mr Voller?---Yep.

And you agree that it says what I’ve said?---Yeah, it does say that.

Yes. And now, you’ve – in your second statement you’ve corrected what you said was a misidentification in paragraph 285, but there’s a number of references over the page, page 39 of your first statement, to photographs where you’ve identified the various officers. Now, you haven’t corrected that. Is that just a – have you just forgotten to do that or are they – do you stand by those identifications, or what’s the position there?---I’m just having a look at it at the moment.

Sure?---39.

MS GOODHAND: Sorry, could you just repeat the paragraph. There it is.

THE WITNESS: I can’t .....

MR O’BRIEN: Those names have all been redacted on the agreement.

MS BROWNHILL: Page 39 of the original statement?--- ..... obviously got pictures to this? Would I be able to see the pictures to this as well?

Mr Voller, all I’m asking you is that you’ve made a correction to what you said in 285, but you haven’t made any similar corrections to the descriptions of photos 5.3 and following, and I’m wondering whether you stand by those identifications or you’ve just simply forgotten to make the same corrections in the following identifications?--- ..... the question.

MS GOODHAND: Sorry. Sorry to interrupt. Is it possible to put the question in a different way? He has just indicated he’s not quite sure what you’re asking.


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MR O’BRIEN: Can I make an objection as well. Commissioners, there seems to be some sort of imputation in these questions that the – which the clarification or the change of the identity of the officer is – should be – should some way impugn his evidence. But, of course, this – there has been a clarification of it. It might be different, but these statements are done by lawyers who often, I can tell you, make mistakes.

COMMISSIONER WHITE: Don’t concede .....

MR O’BRIEN: They make mistakes.

COMMISSIONER WHITE: Don’t concede a thing, Mr O’Brien. This - - -

MS BROWNHILL: .....

COMMISSIONER WHITE: Mr O’Brien, the Solicitor-General also appears for a number of named Youth Justice Officers, not just for the Northern Territory government. And it is important in that respect for the – what might be misdescriptions of certain of those people to be clarified. They’re still on the record in 277, and so I think that’s the purpose of it.

MR O’BRIEN: No, they – but Commissioner, they’re not on the record. All those names have been redacted.

COMMISSIONER WHITE: I know they have been redacted, but they are still here nonetheless It needs to be tidied up. That’s really the purpose, I hope, Ms Brownhill.

MS BROWNHILL: Well - - -

COMMISSIONER WHITE: There might be a larger forensic purpose, but just for this - - -

MS BROWNHILL: Correct.

COMMISSIONER WHITE: - - - particular point you are seeking to identify that issue, aren’t you?

MS BROWNHILL: Yes. Does Mr Voller stand by the identifications that he has made and not corrected or not? It’s a simple question.

COMMISSIONER WHITE: Were they overlooked?

MS BROWNHILL: Yes.

COMMISSIONER WHITE: Mr Voller, do you understand what’s being done here? You indicated that you had made an error in describing who one of the Youth Justice


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Officers was but, in fact – and that has been clarified, but in paragraph 277 you’ve got all the photographs set out and the names of the Youth Justice Officers. Did you fix that up when you were doing the other one – forget to?---In these paragraphs all I say is that the names are there, and they’re all the correct names. It’s just the only thing I – the typing error was the person who grabbed me. That’s the only error. But these are the correct names of the people in there, Bryers, Morton and Tasker.


MS BROWNHILL: Okay.

COMMISSIONER WHITE: Right. That’s - - -



MS BROWNHILL: Now, the other question I had for you about this part of the evidence, Mr Voller, is that in paragraph 9 your correction is actually also a misidentification, isn’t it, because Mr Bryers - - -?---Yeah.

- - - wasn’t holding your left arm at all?---Yeah, it should say Tasker.

Right. Thank you. Now, in your second statement, Mr Voller, at paragraphs 50 to 51, you’ve made some references to some facts about the timing of your – of the Supreme Court dealing with your criminal charges, and the same judge hearing your appeal in relation to the Tasker matter. You see that?---Yep.

What I wanted to ask you is: what’s the point of telling the Commission those facts? Why have you put those in your statement?---I guess it’s just a fact.

Well, there’s all manner of facts in the world, Mr Voller, but you haven’t seen fit to put those. But you’re telling the court – sorry, the Commission, about these facts in relation to those proceedings. Are you suggesting, are you, that Barr Js dismissal of the appeal was somehow influenced by his sitting on the criminal matter?

MS GOODHAND: Sorry .....

MS BROWNHILL: I’m sorry. You can answer the question or tell me the problem, Mr Voller?---I don’t think it’s necessary that I comment on this, considering I’m still going back to a court before this same judge.

Well, what I wanted to know is why are those paragraphs in your statement?

MR O’BRIEN: Well, I think if he doesn’t feel – if he feels uncomfortable to comment on that, for the reasons that he has just explained which is – which are set out, that should be the end of it. The exploring - - -


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COMMISSIONER WHITE: Not necessarily, Mr O’Brien.

MR O’BRIEN: Well, exploring this when there’s no imputations set out in the paragraphs themselves or anything said about it, is unnecessary to explore. It’s not going to assist the Commission, in my respectful submission.

COMMISSIONER WHITE: ..... Mr O’Brien. Ask the question one more time but that’s all I think, because it has been answered, but let’s get it out of the way.

MS BROWNHILL: Mr Voller, why have you seen fit to include in your second statement those facts about the timing of Barr Js involvement in your criminal matter and sitting on the appeal against Mr Tasker’s conviction, failure to convict?---Because I think it’s unfair that he sat on the same person, dismissed the charges, and then sentenced the same person that he dealt with, that he got his charges dismissed for someone else, three days later or however many days later.

So you’re make something sort of allegation about - - -

MR CALLAGHAN: Object to that. He is not making an allegation.

COMMISSIONER WHITE: No. He’s not using the word allegation, Ms Brownhill. He says it’s unfair.

MS BROWNHILL: Alright.

COMMISSIONER WHITE: That’s all. Just unfair.

MS BROWNHILL: Alright. Thank you. Your second statement, Mr Voller, paragraphs 65 to 72 - - -?---Yeah.

- - - what you’re dealing with in those paragraphs is the statement made by Trevor Hansen?---Correct.

And in Mr Hansen’s statement at paragraph 17 he describes a conversation that he had with you, and you deny that that discussion happened. You see that? This is in paragraph - - -?---Yeah, that’s correct.

Yes?---And I stand by it, yep.

Alright. Just tell me whether you agree or disagree with these facts: your sister was born in [REDACTED]?---Yep.

And you were arrested and held at the Alice Springs holding centre on [REDACTED] for breach of a court order?---Possibly.


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And you were transferred from Alice Springs to Don Dale on [REDACTED], two days later?---Possibly. I don’t remember the dates or remember when. I’ve been transferred that many times.

Well, at that – the time of that transfer your sister was about [REDACTED] old?---Yeah, possibly.

Okay. Now, in paragraph 72 of that statement – your statement – you included a reference to a photograph and you’ve annexed the photograph, annexure 3?---Yep.

Do you know the photograph I’m talking about?---Yep.

And you’ve identified one of the people in the photograph as Trevor Hansen, you see that?---Should be Trent Hansen.

Well, that’s what I was going to ask you: is it meant to be Trevor or is it meant to be Trent?---Trent Hansen.

Okay. And so why does the photograph appear in where you’re responding to Trevor Hansen’s material or statement? What’s it got to do with Trevor Hansen?---Once again – once again, maybe communication error, typing error.

I see. So you don’t suggest, do you, that there’s any sort of relationship between Trevor Hansen and Trent Hansen?---Not that I know of. Maybe, they could be related, they’ve got the same last name, but not that I know of.

Okay.

MR O’BRIEN: Sorry, can I just raise: can we have a nonpublication order in relation to the date of birth of the sister, please. It was cut, I’m told. Thank you.


COMMISSIONER WHITE: Yes, I make that order. Thank you.

MS BROWNHILL: Mr Voller, you have made some – sorry, in your first statement you’ve given some evidence about being provided or not being provided food, paragraph 188, do you remember that evidence?---Yeah, I’m just going to it. Yep.

Do you agree or disagree that on a number of occasions you have been provided food and thrown it on the floor?---Agreed. Sometimes.

And that you - - -?---It was horrible what they were giving me.

I’m sorry, I didn’t catch - - -?---Sometimes, but it would have to be certain ..... they would give me something that I wouldn’t even feed to my pet dog.


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And sometimes you’ve thrown your food at the Youth Justice Officer who brought it to you?---I don’t recall that.

Sometimes you’ve refused the food that’s been provided to you?---Yeah, I can – I’ll accept that.

And on occasion you’ve spat on staff who’ve brought you food?---Yeah, maybe, but I don’t recall that.

Right. Well, documents I will tender – seek to tender in relation to that is at tab 78 to 89. I think – now, lastly, Mr Voller, in paragraph 20 of your second statement, you make a reference to Mr Clee saying that you lie and make false allegations against Youth Justice Officers and you say this is not the case; correct?---Correct. Yep.

So it’s your evidence, is it, that you don’t tell lies?---Correct.

MR O’BRIEN: No, that’s not a fair - - -

MS BROWNHILL: He’s answered the question. Thank you.

MR O’BRIEN: That’s not a fair proposition from that. Lie in relation to false allegations to YJOs, that’s the obvious imputation.

COMMISSIONER WHITE: Yes, that’s correct.

MS BROWNHILL: Mr Voller gave the answer in any event.

MR CALLAGHAN: Well, he gave the answer in a context that was objectionable, so it can’t count.

COMMISSIONER WHITE: I don’t think you get a free kick in there, Ms Brownhill. The answer is in the context of paragraph 20.

MS BROWNHILL: Well, I will ask a different question then.

Mr Voller, is it your evidence to this Commission that you don’t tell lies?---No, I haven’t lied to this Commission.

Well, that wasn’t my question. Mr Voller, is it your evidence that you don’t tell lies?---Yes. I have probably told a white lie in my life, but who hasn’t?

Well, you’ve told some lies during your time in detention, haven’t you?---Would you be able to point out specific incidents? Or if you’re talking about my complaint, no, I haven’t.

Well, for example, you’ve told Youth Justice Officers that you intended to hurt yourself when actually you didn’t intend to do that. Do you agree with that


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MR O’BRIEN: I object to this. It is a matter of public record that this young man suffers from post-traumatic stress disorder. There has been – there has been a great deal of cross-examination on times at which he has been – tried to kill himself, tried to hurt himself, and now again we venture into suggestions that he wasn’t trying to hurt himself when he suggested he was trying to hurt himself, or wanted to express an intention to hurt himself or kill himself. What on earth – how can that assist? And bear in mind we are dealing with, still, a fragile witness. I see him in the screen in front of my eyes and I think he’s fading through this.

COMMISSIONER WHITE: Well, Mr O’Brien, if I can say bluntly: I don’t think these interventions are very helpful. The questions, in light of the evidence that’s been provided by your client, are entitled to be tested.

MR O’BRIEN: In relation to him trying to hurt himself and what happened around those times? How helpful is that?

COMMISSIONER WHITE: Well, it may - - -

MR O’BRIEN: I mean, people who do that are in a very fragile state of mind. Whether they intended to do it or whether they’re just calling up for help and assistance, whether they’re just – it’s just a plea for help. A child doing that is not ripe for cross-examination of this type, and I maintain the same objection that I took at the beginning of the day when all of this began to transpire. It’s unhelpful and it’s damaging.

COMMISSIONER WHITE: Thank you, Mr O’Brien. I would expect, Ms Brownhill, that you would be measured in your approach to this issue, but you can ask some questions about it.

MS BROWNHILL: I’m not going to be extensive by any means. This is my last topic and it will be brief.

COMMISSIONER WHITE: Thank you. We will see how it goes then.

How are you bearing up Mr Voller, are you right?---Yeah.

Good. Thank you.

MS BROWNHILL: My question was, Mr Voller,that you have told Youth Justice Officers that you intended to hurt yourself when you didn’t actually intend to do that. Do you agree or not?---There’s been times when I’ve been bullied so much that I had nowhere else to go, they didn’t do anything, so I have said it so I would be placed at risk away from everyone, yes. But I wouldn’t call it a lie. Just because I said it doesn’t mean I wasn’t feeling it, but I was too scared not to do it.

Well, you’ve also told Youth Justice Officers that you’ve done something to hurt yourself when that’s not true. Do you agree with that?---On a couple of occasions,


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yes, because I had nothing else to do. No one would talk to me. No one would listen to me.

So Mr Tasker, for example, gives an example that you smashed a TV and then said you swallowed the glass, and when medical was arranged to assess you, you admitted that you hadn’t swallowed the glass. That’s an example, is it?---Yep.

You’ve said in answer to a question I asked you not that long ago that you haven’t told lies to the Royal Commission. That’s your evidence, is it?---100 per cent.

Now, Mr Voller, you were assessed last year by a psychiatrist called Dr Kipling Walker. Do you recall that doctor?---Yep.

And that was an assessment undertaken for the Parole Board to consider your application for parole; correct?---Correct.

And you’ve included with your statement a copy of the Parole Board’s report.

MR O’BRIEN: I object. This is a confidential document.

MS BROWNHILL: Again, I didn’t appreciate that this was a confidential document. What I would seek to do is add it to the questions that – in relation to - - -

COMMISSIONER WHITE: Yes, do them with the other two.

MS BROWNHILL: Yes. Thank you. In that case I am done for now. Thank you.

COMMISSIONER WHITE: Thanks, Ms Brownhill. Alright. Thank you.

There are a number of other – Mr Voller, there are a number of other lawyers who want to ask you some questions on behalf of their clients. Are you able to continue now or do you want a short break?---Yeah. I will just have a short break, please.

Alright. Is five minutes good?---Yes. Thank you.

Alright. Thank you. We will probably stay here, but you can feel free to leave?---Okay. Thanks.

And come back in five minutes if you would. Thank you?---Yep.

MS GOODHAND: Thank you.


COMMISSIONER WHITE: Mr Tippett, you - - -


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MR TIPPETT: Commissioners, could you hear me for a moment. I’ve made an application to cross-examine Mr Voller on a very confined – two confined areas. I seek leave to do that.

COMMISSIONER WHITE: Alright. All the other people – or other lawyers who wanted to do that didn’t seem to have any difficulty in complying with the directions about that. Is there a reason for this?

MR TIPPETT: Yes, there is. I didn’t get back from Europe until Sunday and didn’t get the 8 April statement which was made while I was away until Tuesday. I got some instructions on Wednesday and I made my application on Wednesday.

COMMISSIONER WHITE: Alright, then. That seems to be a reasonable enough explanation.

MR TIPPETT: And the cross-examination is in relation to paragraph 127, 128 and - - -

COMMISSIONER WHITE: That’s the first or the second - - -

MR TIPPETT: Of the second statement and that’s – 127 and 128.

COMMISSIONER WHITE: Thank you. Thanks. That’s the range of your - - -

MR TIPPETT: And that’s the range. I was going to ask you about rapport as well, and suggest to Mr Voller that he had seen Mr Middlebrook on a – a significant number of occasions and he felt comfortable approaching him.

COMMISSIONER WHITE: Well, you - - -

MR TIPPETT: And so – and so that would probably fit into the paragraphs beforehand but that is the extent of the cross-examination. I feel I can do it in 10 minutes, tops.

COMMISSIONER WHITE: Yes. Leave given, Mr Tippett.

MR TIPPETT: Thank you, Commissioners.

MR O’BRIEN: Can I just get an indication as to how many witness’ counsel intend to cross-examine my client at this stage?

MR CALLAGHAN: If it assists, Commissioner, as I understand it Mr Kelleher’s counsel has been allowed 10 minutes, Mr Morgan’s counsel has been allowed 10 minutes, Mr Clee’s counsel 15 minutes, Mr Middlebrook, myself, and Mr O’Brien. At the moment I would anticipate that I would be about 10 minutes.

MR O’BRIEN: Would you excuse me just for one brief moment, please?


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COMMISSIONER WHITE: Yes. Of course, Mr O’Brien.

MR CALLAGHAN: Those figures should, of course, be observed as an outer limit. They’re not compulsory.

COMMISSIONER WHITE: You don’t have to bat out.

MR CALLAGHAN: No.

COMMISSIONER WHITE: No.

ADJOURNED [3.42 pm]

RESUMED [3.50 pm]

<DYLAN JAMES VOLLER, RECALLED [3.50 pm]

COMMISSIONER WHITE: Mr Voller, there’s a little bit more to go?---Yeah.

So it shouldn’t be too long. But if you need a break at any time, would you just let me know and we can easily pause for a while?---Yes. Thank you.

<CROSS-EXAMINATION BY MR TIWANA [3.51 pm]

MR TIWANA: Thank you, your Honour.

Thank you, Mr Voller. I’m going to ask you some questions - - -

COMMISSIONER WHITE: Can you just identify who you appear for, if you would be so kind.

MR TIWANA: Yes. Of course.


MR TIWANA: I appear on behalf of Ben Kelleher?---Yeah.

Okay? And I’m not going to be very long. You’ve set out in your first statement, and also your second statement, an incident that occurred involving Ben Kelleher on 16 August ..... yes?---Yep.

.ROYAL COMMISSION 20.4.17 P-2663 D.J. VOLLER XXN©Commonwealth of Australia MR TIWANA

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Now, in your second statement dated 8 April 2017, in paragraphs 84 through to 91 you’ve responded there in relation to Mr Kelleher’s statement; is that correct?---Yep.

If I could take to you paragraph 89, please, Mr Voller, third sentence down, I’m going to read it out to you. You say:

Prior to that we mostly had a good relationship. I think that our relationship went bad when I started misbehaving in the BMU and I think that made him upset with me.

?---Correct.

Now, I’m just going to break that down. You say firstly:

Prior to that we mostly had a good relationship.

By that, do you mean that prior to the incident on 16 August you generally shared a good relationship with Mr Kelleher?---Yeah. There was one incident before that. I think the night before, but other than that, yeah, we had a pretty good relationship.

Yes. He was someone who was prepared to spend more time with you one on one; that’s correct, isn’t it?---Yep.

He took out the time to talk to you?---Yep.

He would talk to you about – about his life?---Yes.

About his experience? He would talk to you about – generally about sport?---Yep.

And on occasions he would sit down with you and watch TV?---Yeah.

He would also take you out into the basketball court and play with you?---Yep.

You go on to say that:

I think that our relationship went bad when I started misbehaving in the BMU and I think - - -

?---Correct.

Continuing:

- - - that made him upset.

?---Yeah.


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That made him upset because it’s correct, isn’t it, Mr Kelleher wanted you to do well, didn’t he?---Yeah. That, and he also got upset because I was abusing his friends.

Okay. So I was going to ask you about that. When you say, “I started misbehaving in the BMU”, what do you mean? How were you misbehaving?---Swearing, blocking cameras.

In terms of blocking cameras, that was something you did from time to time; is that correct?---Yep.

And you would block cameras with various things like, for example, milk, yoghurt, cardboard; is that correct?---Sorry, how do you block the camera with milk? It’s liquid.

Have you used any food products like milk or product – sorry, yoghurt, by pouring it onto the camera?---Cheese, stuff that can actually stick, yeah, but not milk or yoghurt.

So you used cheese?---Yeah.

Okay. And apart from blocking cameras, you said that you were – I think you said the words that you were swearing at other YJOs. Is that what you said?---Correct.

Okay?---Yeah.

You were also making threats, weren’t you, towards families of other YJOs?---No. I deny that. I had done that in the past but this incidence, never.

When you say you have done that in the past, when was the last time that you can recall that you made a threat towards family members of YJOs prior to 16 August?---I couldn’t give you a date. I remember I used to say things when I was angry quite a lot, empty threats and stuff that I didn’t mean, just because I couldn’t control my mouth.

Okay. So there were threats of causing physical harm towards family members of YJOs; is that correct?---Yeah. That’s correct.

And is it correct that Mr Kelleher had on occasion spoken to you about not doing that, not making threats towards anyone’s families?---He might have. I don’t remember. I think he might have once or twice, but - - -

On the – around 16 August 2014, did you make threats towards families of other YJOs?---Not that I can remember.

Okay?---I’d definitely been abusive around that time, but I don’t remember making any threats.


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Now, Mr Kelleher came into your cell, as we know; yes?---Yep. Correct.

And we’ve seen the video showing that?---Correct.

You’re aware, aren’t you, that Mr Kelleher denies making any threat to harm you. You’re aware of that, aren’t you?--- ......

You’re aware of that – sorry?---Yeah, I’m aware of that.

Yes. You’re aware of that because you’ve read his statement?---Yes, and I’ve been watching him give his evidence.

And what do you say about Mr Kelleher saying that he made no threat to harm you?---That’s absolute lies.

Mr Kelleher, when he came into the cell and spoke to you, told you words to the effect that he was upset in your behaviour because you were making threats towards families of other YJOs?---No, that’s not what happened. He actually come in and said what did I say about his kids, and from my understanding he doesn’t even have kids. He threatened to break my neck and swore at me and then threatened to kill me. That’s what got said.

So he swore at you. He threatened to break your neck?---Correct.

And I think you said he threatened to kill you?---Yeah. He said, “If you see me on the outside”, he’d kill me.

Anything else?---I just said he said – what did I say about his kids? And from my understanding he didn’t even have kids.

Now, when you made your first statement, Mr Voller - - -?---Yeah.

- - - on 25 November last year, in that statement you set out everything you recalled about incident 7. That’s the incident involving Mr Kelleher on 16 August .....?---Sorry, what – sorry, what paragraph that is?

It’s paragraph 297 onwards, 297 up to 301?---Yep.

And if I just – you don’t need to look at the statement for the moment, but can I just ask you, you were setting out in that statement everything you recalled that Mr Kelleher had said to you when he spoke to you in your cell on 16 August; is that correct?---Yep.

And in particular, you were setting out all the threats of any physical harm that he made towards you?---Yep.

And if we look at paragraph 299 - - -?---Yeah.


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- - - in particular if you have a look at the last two sentences, the only threat that you’ve mentioned in that paragraph that Mr Kelleher made towards you was a threat to “break your fucking arm”?---Yep.

Do you agree with that?---Yeah. He also said that as well. And I later on found out that that was the plan from ......

Do you agree that there is nothing there about him making any threat to break your neck?---Yeah. I do agree that doesn’t say that there.

Do you also agree that there is nothing there about Mr Kelleher making a threat to kill you?---Yep. That also doesn’t say that there.

If those threats had been made, you would have set them out in that paragraph. Do you agree with that?---It did get said.

Why didn’t you put it?--- ......

Why didn’t you put it in your statement that he had threatened to, for example, break your neck?---Because it obviously didn’t all come back to my head as I was doing this statement. I mean, while I was doing this statement I was still in jail.

Is it correct that after he left – he and Mr Zamolo left, that you spoke to Mr Zamolo via the intercom?---Yeah, that’s correct.

And is it correct that you apologised, saying:

I was a dog for saying those things about everyone’s families.

?---I wouldn’t say that was the case. I did ring up crying saying sorry because I was fearful, and I was trying to do anything I could to make Ben not want to come back, because I was scared that he was going to come back and do something, and maybe this time block the camera and do what his intentions were to do.

Did you apologise because you wanted Ben Kelleher to continue working with you as he had done before 16 August?---No. To be honest I didn’t want anything else to do with him at all, really. I just wanted him not to come back down and cause harm on me.

And finally, you later on wrote a letter to Mr Kelleher, didn’t you, apologising?--- ......

Apologising for making threats towards members of families of other YJOs, didn’t you?---I don’t remember, but maybe.

Thank you.


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COMMISSIONER WHITE: Thanks, Mr Tiwana.

<CROSS-EXAMINATION BY MR LEWIN [4.03 pm]

MR LEWIN: Mr Voller, my name’s Adrian Lewin, and I’m appearing for Barrie Clee?---Yep.

I am just going to ask you some questions in relation to an incident that occurred on 9 December 2010 which just to refresh your memory is the incident where Derek Tasker was charged and prosecuted. Do you understand that incident?---Yeah. I do.

Now, firstly, in your statement – and it’s your first statement at paragraph 243, you state there that:

At the time I believe I was in cell 5 at the ASYDC. I believe I was immediately put at risk as a form of punishment.

?---Yeah.

And that’s your evidence, is it, as to your understanding of your placement in the isolation cell on 9 December 2010?---Yep.

Now, have you had a chance to review Barrie Clee’s response to that, and he denies that he placed you on that occasion, or in fact on any occasion, in isolation as a form of punishment?---Yeah, I’ve read it. I don’t remember everything in his statement but, yeah, I’ve read it.

Okay. Now, he says – he says that it was in response to a claim that you would self-harm on that occasion. You understand that, don’t you?---Yeah, I understand what you’re saying, yeah.

Now can I first ask you this more generally. You agree, don’t you, that there were multiple occasions upon which you threatened self-harm?---Yeah, I agree.

And that was directly to YJOs; yes?---Yep, so YJOs, to mental health staff, to doctors.

And on some occasions you seem to acknowledge, I think in your evidence earlier, that you would utilise the threat of self-harm even in circumstances where you weren’t intending to self-harm. That is for strategic reasons. You seem to acknowledge that proposition; is that right?---Yeah. But even when I did say it I was still emotionally hurt. I still felt like it, but I was too scared to carry through with the threat and I wanted to be put away before that threat got serious .....

.ROYAL COMMISSION 20.4.17 P-2668 D.J. VOLLER XXN©Commonwealth of Australia MR LEWIN

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Okay. Now, given you haven’t expressly rejected the proposition that you did self-harm on 9 December 2010, and you also accept the proposition that you have threatened self-harm on numerous occasions - - -?---Yeah.

- - - are you able to reject Mr Clee’s evidence? Do you disagree with that evidence that on 9 December 2010 you, in fact, did threaten to self-harm?---I don’t remember saying it, but I can’t exactly agree to it or disagree, because I can’t remember.

But you certainly accept it is possible that his evidence is correct on that point?---Pardon. Could you repeat that.

You accept that it’s possible that his evidence on that point that you threatened to self-harm is correct?---Yes, it could be possible.

Now, the footage shows that he entered the room after you were placed in isolation, and in his hand was an at risk gown, and there was a conversation. It’s not an audio recording, it’s visual only, so we don’t know what was spoken about?---Yes.

You understand that?---Yeah.

But essentially his evidence is that he offered you the opportunity to place that gown on voluntarily; yes?---Yes.

Okay. And you didn’t take him up on that opportunity?---No. Because from my recollection I don’t remember saying that I was going to self-harm and that’s one of the reasons why I didn’t want to put that stuff on, because I didn’t want to get put in that, because I didn’t do anything.

You acknowledged before though that you don’t know whether you did threaten self-harm on that occasion.

COMMISSIONER WHITE: I think he said he could accept the proposition that he might have.

MR LEWIN: Yes.

COMMISSIONER WHITE: I think it was perhaps a little less - - -

THE WITNESS: I might – yeah.

COMMISSIONER WHITE: - - - than the way you’re putting it.

MR LEWIN: Okay.

THE WITNESS: I might have, but if I was in that situation I don’t – I wouldn’t really have food there in a calm manner and crying and telling him that I wouldn’t put it on for no reason. If I would have – like every other time if I were to threaten


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self-harm and they were trying to ..... I would have been very hostile and disobedient and abusive. And I wasn’t doing that, clearly, in the video, I was standing up crying because I didn’t want to get stripped. I didn’t want to be stripping naked in front of officers and put in there.

MR LEWIN: Now, a bit more broadly if I can, just in relation to management of you whilst you were in juvenile detention, you’ve obviously spent a number of months, if not years, in juvenile detention facilities?---Yep.

And whilst I haven’t cross-referenced the length of time that that would have been with the time at which you were placed at Mr Clee’s facilities, that is facilities where he works at, you would agree it would be several months that you were housed at facilities where Mr Clee was working. You agree with that?---Yeah. Yep.

And you’re also aware that there were multiple management plans specific to you that were – that were proposed in terms of how to manage your behaviour?---Yeah.

Okay. Now, you would have had multiple occasions upon which – and I think – pardon me – on your own acknowledgement you agree that you were difficult to manage and there were multiple instances of misbehaviour. You agree with that as a proposition?---Yeah.

Okay?---I do agree with that, yes.

Were there occasions when, even in your own acknowledgment of those misbehaviour, whether it be spitting, assaulting, or just verbal misbehaviour, were there incidents where you would have discussions with Mr Clee in your time in – at the same facility as him, that didn’t result in placement in an isolation cell?---To be honest, yes, I think there was.

Okay?---Might be two or three – two or three occasions where that has happened, where it hasn’t been a serious – I don’t think it’s as serious as spitting or assaulting someone, maybe just being abusive.

Okay?---But not – I wouldn’t say spitting, going as far as spitting or assaulting someone. I usually get 72 hours when I do something like that.

In regard to perhaps more elevated instances, for example, spitting or circumstances where your emotional situation was quite fragile or you were in quite an angry state - - -?---Yeah.

- - - do you agree that the situation was such on occasion – I’m speaking generally here – that your behaviour wasn’t capable of being managed by the YJOs through conversation and conversation alone?---To be honest, I think if someone was open to come down and just walk into my cell, sit down and talk, I would have sat down and listened. And that has been proven every time someone has actually done that: I usually sit down and I talk and listen. I don’t keep going. Usually, when I’m


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misbehaving, I’m acting out so someone can sit down and talk to me, because I’m in a room, I’m locked down, by myself, nothing to do, no one to talk to, and all you want is someone to be able to sit down and talk to.

And in that regard your relationship with the relevant YJO who was working at the facility was quite important, wasn’t it?---Of course. Every detainee would want to be able to get on with the YJOs that are on there, be able to talk to them, but unfortunately that’s not the case with every YJO because not every YJO wants to be able to do the same with the detainees.

Did you find it more useful when you engaged with the psychologist that was working at a detention centre? That is, more useful in terms of managing your behaviour and assisting you with any emotional turmoil you’re going through?---Which psychologist is this?

Well, any of them. You were engaged with various psychologists over the time at detention centres, weren’t you?---Yeah, there’s only one psychologist I’ve engaged with, and that was Ms Swan, Ms Angeline Swan, and that was the last four or five months before I turned 18, and I started making a lot of progress in my violent offending management, and I started enjoying that and liking that process, yeah.

Okay. I just also want to take you to the incident on 16 March 2012. Now, that’s the incident where – do you know that incident offhand?---No.

It’s referred to in your second statement at paragraphs 25 to 27 inclusive and just – can I just remind you, Mr Voller, I’m not proposing to deal with any issues that are referred to in paragraph 28. So I’m asking you to confine your answers - - -?---Yeah.

- - - only to the question I ask. Do you understand what I mean by that?---Yes, I understand.

So in relation to that incident – and you’ve annexed to the back of your affidavit – it’s annexure 2, if that can be brought up, please. Whilst that’s being brought up, I will just continue with the question, and - - -?---Yeah.

And I’ll address it when it does come up. You’ve stated at paragraph 27:

I don’t recall ripping my shirt immediately before being placed in the BMU, or spitting on staff as described. I also don’t recall trying to incite detainees to riot.

Okay. I’ve just read that from paragraph 27. If the next page of that annexure could please be shown. Thank you. Now, that’s presumably in response to what’s contained in that annexure?---Yeah.

Which refers to Barrie Clee’s observations that – or what he had heard that you had spat, ripped your clothing and incited other people to riot. So your direct response to


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that is, “Well, I don’t recall that happening”?---Yeah, I don’t recall that happening .....

Now, do I take it from then that you accept that it could have happened. You don’t have a specific recollection of it?---It might have, but I doubt it. It’s pretty hard to incite someone to riot when you’re locked in a cell.

Well, this is before you’re locked in the cell. So the suggestion is you were calling out to other inmates in one way, shape or form, to – whether it’s misbehave, engage in a riot, matters of that kind. Do you agree that you did it on that occasion, or you disagree, or you just don’t remember?---I just can’t remember that. I thought you were talking about while I was in the cell. But I don’t remember that, no.

Have you ever done that before? Called out to other inmates encouraging them to misbehave, perhaps damage property, anything of that kind?---Yeah. There was once in 2011 when there was a riot up in Don Dale when I was about 17 where I jumped in the pool.

What you haven’t addressed in paragraph 27 is the reference in the incident report to the fact that you assaulted another prison officer, that is specifically you assaulted him with your fists. See that in the incident report referred to? And I can read it to you if it assists?---I don’t even know – I don’t even know who that YJO is. I – his last name, and also I don’t remember that happening.

That’s – it’s a separate question. I haven’t even asked – you understand though, that you haven’t addressed that in paragraph 27? The suggestion that you’ve assaulted, with your fist, the YJO that was involved in the incident immediately prior to your placement in isolation in BMU?---Yeah. I don’t know why I haven’t – why I haven’t, but I don’t remember that happening.

Okay. So again you wouldn’t deny that it happened, or you don’t remember exclusively or conscious - - -?---I just can’t remember that happening.

Have you ever hit a YJO before?---I think with my fist, probably only once, maybe even twice at most.

Just a final question and remember what I said in the beginning in relation to paragraph 28, it is very confined this question: there was some questions asked of Mr Clee regarding whether that hold upon you, the restraint upon you was – whether it was a safe, appropriate hold and there’s the potential that it could have blocked your – I think it’s called the window of safety, that is the potential to cut off your breathing, you understand that, yes?---Yep, yes.

You haven’t mentioned anything in your statement here about actually having your breathing affected by that restraint. Was there anything that caused you to have any impact on your breathing passages, to your recollection?---It happened almost every time. Someone that’s about 80 kilos puts all their weight on you, it does, it does stop


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you from breathing. It hurts your back, you get a lot of different pain, but if I went on and put everything little thing in this statement that I felt and what happened, we would be here for days.

I’m just asking you a specific question. Do you have a memory on this particular occasion, with this particular restraint, do you recall there being any direct physical impact on you by way of restriction on your breathing?---Yeah.

That’s the question, you do remember that?---Yeah. Gasping for air, and the knees in my back was hurting my back. I’ve got a pretty bad back.

You didn’t make any complaint to medical did you? Any medical staff at the facility?---Not that I remember. No complaints really get heard there anyway.

No further questions.

COMMISSIONER WHITE: That’s all. Thank you.

MR O’BRIEN: Can I just rise to say Ms Goodhand is no longer in the building. She has left the building, and so has her support officer – so has Mr Voller’s support officer, Mr - - -

COMMISSIONER WHITE: I understand there’s someone from your staff there, though.

MR O’BRIEN: Yes. Ms Tolley is accompanying him now.

COMMISSIONER WHITE: Yes. Thank you, Mr O’Brien. Now, Mr Voller, Mr Tippett is going to ask you a very few questions. He’s acting for Mr Middlebrook?---Yes.

<CROSS-EXAMINATION BY MR TIPPETT [4.18 pm]

MR TIPPETT: Mr Voller, yes. John Tippett for Mr Middlebrook. I want to direct you to your paragraphs 127 and 128, and it’s the second statement, your 8 April statement. Look, as I understand the situation in August and September of 2014, it was this: you saw Mr Middlebrook on the night of the incident in the BMU when some gas was used; is that right?---Yep.

And then you saw him later, again, at your cell at Holtze; is that right?---Correct. Yep.

And on the second occasion, that is the occasion after, the – the gassing, he was at your cell for the purpose of making inquiries about an incident you had complained about; is that right?---Yeah, that’s correct.

.ROYAL COMMISSION 20.4.17 P-2673 D.J. VOLLER XXN©Commonwealth of Australia MR TIPPETT

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And, in fact, he had a Mr Ferguson in tow in the course of making those inquiries; is that right?---Yep.

And did he tell you that Mr Ferguson was from the Professional Standards Unit?---Yeah, he did.

And he and Mr Ferguson – that is Mr Middlebrook and Mr Ferguson then went about questioning you about events that you had earlier referred to; is that right?---Sorry, what was that?

They questioned you about events that you had complained about?---Yeah, that’s correct.

Alright?---We had a conversation, it would be about my behaviour, and the way I was behaving in the centre.

Yes, but in particular, they were at – you were aware that they were at Holtze to make inquiries of you about a complaint that you had made concerning Mr Kelleher and Mr Zamolo; is that right?---Yep.

Now, could I move on to another point and that is there was some discussion during that meeting about parole; is that right?---Yep.

Now I - - -?---That’s correct.

I suggest to you that a discussion about parole arose as a result of you making inquiries of Mr Middlebrook about when you might get parole?---Yeah, I asked him about the parole.

Yes?---And he said, “Well, you’re not going to get it with your behaviour, but if you start behaving, then I’m – “ he said, “I’m the head of the Parole Board, I can definitely make sure you get parole if you start behaving but if you don’t, I can make sure that you don’t get it.”

I suggest to you it was this – along these lines, rather than that: that Mr Middlebrook said to you, “Look, you’re going to have difficulties getting parole if you continue to behave in the way you have in the past.” Did he tell you that?---I don’t agree with that comment, that he said that.

And he said that the Parole Board would take into account any behaviour that you had engaged in prior – that is in Holtze or elsewhere, prior to you making an application for parole?---Yeah, he might have said that, but he also said the comments that I put in my statement.

Yeah, well, I suggest to you that’s incorrect, that he did not make those comments to you at all. What do you say about that?---Well, I guarantee you – to you that he did.

.ROYAL COMMISSION 20.4.17 P-2674 D.J. VOLLER XXN©Commonwealth of Australia MR TIPPETT

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And I suggest to you, in fact, that Mr Middlebrook told you that the reason why you might have your parole application rejected was because of behaviour prior to making the application; isn’t that the case?---He might have made a comment like that, but he also said that he could make sure that I could get it and he could also make sure that I don’t, depending on my behaviour, whether I behave or misbehave.

Well, I put to you that in fact did not take place and Mr Middlebrook did not say those things to you?---I’m saying to this - - -

What do you have to say to that?---I’m saying to this Commission and I’m also saying to you that Mr Middlebrook did, in fact, say that.

Alright. Now, one last thing: prior to 21 August 2014, you had seen Mr Middlebrook on quite a number of occasions, both in Alice Springs and Darwin, had you not?---Not that I can remember. I wouldn’t say a number. I think I’ve seen him walk through the centre maybe, or something like that. I don’t recall seeing him that often.

You would approach him from time to time when you saw him and make requests of him. For example, that - - -?---I think, sorry - - -

COMMISSIONER WHITE: Perhaps just one question at a time, Mr Tippett.

MR TIPPETT: And make requests of him; is that right?---What sort of request ......

Well, a request – I was about to suggest that. A request like, “Can I be transferred from Darwin to Alice Springs?” Or vice versa?---Maybe once when he come and seen me that time at Holtze, I might have asked him, but other than that, no.

No. And I suggest to you that you felt comfortable enough to approach Mr Middlebrook, speak to him by name, and make requests of him?---I wouldn’t say anything about comfortable. I’d say I’d ask any worker or any boss if I could get sent back home, because I wanted to be near my family. It wouldn’t be exactly him. It would be anyone.

Alright. Yes. I have no further questions.

COMMISSIONER WHITE: Thanks, Mr Tippett. How are you managing? I think we haven’t got much longer to go, Mr Voller. If you can hang on, well and good, but if you need a short break, we can stop?---No, that’s okay.

Are you sure?---Yeah .....

MS BALLARD: I assure the Commissioners I won’t take too much time.

<CROSS-EXAMINATION BY MS BALLARD [4.24 pm]

.ROYAL COMMISSION 20.4.17 P-2675 D.J. VOLLER XXN©Commonwealth of Australia MS BALLARD

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MS BALLARD: Mr Voller, my name’s Kate Ballard and I act for Howard Morgan?---Yep.

I’m going to ask you some brief questions about what happened with Mr Morgan on 28 October 2010. Do you remember the incident I’m talking about?---Yes, I do.

And you’ve seen the footage of that incident?---Yes, I have.

Just before that incident with Mr Morgan you had had some sort of dispute with Jamie Clee, hadn’t you?---Yeah. I don’t remember what happened leading up to it, I just remember from in the hallway area and then what happened afterwards.

Okay. So it’s a long time ago, and you say you can’t remember, but you can’t deny that it’s a possibility that you had had some kind of dispute with Jamie Clee prior to this incident with Mr Morgan?---Yeah, I can’t deny it, but at the same time I can’t remember it.

You just don’t have a specific memory of it?---Yeah. Not of what happened before. The only reason I remember the incident is because it was traumatic and it stayed with me.

Okay. Now, when this incident did occur with Mr Morgan, Jamie Clee by that stage had left the area so you were alone with Mr Morgan?---Correct.

Now, you spat at Mr Morgan when you were alone with him prior to him picking you up?---No. That never happened.

You disagree with that?---Yep.

So you disagree that you spat at him in the face?---Yep, I disagree with that.

And that the spittle landed in Mr Morgan’s face?---Yep. I absolutely disagree with that.

And it was after you had spat at Mr Morgan that he then picked you up?---And slammed me on the bed? Or – no, but I didn’t spit on him.

Okay. So when – just in relation to what you said about him slamming you on the bed – and you’ve seen the footage, haven’t you?---Correct.

Now, when Mr Morgan released you, you were thrown from inside the door of the room onto the mattress?---Correct.

So you landed on the mattress completely? What I mean is your body landed completely on the mattress?---Correct. A very thin – mattress that, if you stand on it, you can pretty much hit the – you’re feeling the concrete anyway.

.ROYAL COMMISSION 20.4.17 P-2676 D.J. VOLLER XXN©Commonwealth of Australia MS BALLARD

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Right. But your whole body landed on the mattress after he released you?---Correct. Yep.

And the distance that you were actually thrown – as I said, when Mr Morgan released you it was from inside the doorway of the room?---Just, yeah.

Pardon?---Yeah. Just inside the doorway, yeah.

So the distances you were actually thrown was no more than a metre?---Yeah, about a metre and a half, yep.

And if it does – well, you say about a metre and a half but if it – if it does look a bit further than it actually was on the footage, that might be because of the camera angle?---Yes, ..... pretty long way to be thrown as a 13 year old, 40 kilo person with force, yeah.

That may be so - - -?---I still think – I still think a metre and a half is pretty far.

Okay. But Mr Morgan didn’t throw you on the ground?---He threw me the onto the mattress, which was on the ground.

He didn’t punch you?---No.

He didn’t knee you?---No.

He didn’t shove you?---No.

And, just on something slightly different now, Mr Voller, you aware that at that time that there were other kids who were being supervised in the kitchen area?---I think so, yeah.

And you know that sometimes kids who were in the kitchen area might have access to knives while they were being supervised in the kitchen?---Yep. Which are on chains onto the bench.

Yep. But they would have access to knives in that supervised kitchen setting?---Yeah.

Thank you, Mr Voller. Nothing further.

COMMISSIONER WHITE: Thanks, Ms Ballard.

<RE-EXAMINATION BY MR O’BRIEN [4.28 pm]

.ROYAL COMMISSION 20.4.17 P-2677 D.J. VOLLER RXN©Commonwealth of Australia MR O’BRIEN

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MR O’BRIEN: Mr Voller, my name’s O’Brien and I represent you, as you know?---Yep.

Are you feeling alright to continue?---Yeah.

Okay. You know – you were asked questions extensively by Ms Brownhill for the Northern Territory government?---Yes.

A short while ago, throughout the course of the day; yes?---Yeah.

And you know that she represents the Northern Territory government, don’t you?---Yeah, I do.

Now, you know that, at the end of this Royal Commission, the Royal Commission will bring out reports and recommendations which we hope will be implemented by the Northern Territory government. You know that?---Yep.

Well, how do you feel about being cross-examined in the manner in which you were by Ms Brownhill, who represents the Northern Territory government?

MS BROWNHILL: I object to that. What’s Mr Voller’s feelings about my cross-examination, how is that going to assist the Commission in reaching the conclusions and making the recommendations it has to reach? It’s also potentially an offensive question, inviting some sort of insult or other comment.

COMMISSIONER WHITE: Yes. Mr O’Brien, I will disallow that question. If you want to ask him what he hopes – Mr Voller hopes about the outcome of the Royal Commission, things of that kind, well, that’s happened before with other witnesses and it’s quite proper. But the line of – the invitation that you were extending, I think, is not proper.

MR O’BRIEN: Okay. Very well.

Now, you’ve been a part of this Royal Commission and given evidence now on two separate occasions, haven’t you, Dylan?---Yeah.

And you’ve been extensively cross-examined by a number of lawyers in relation to their own witnesses and by the Northern Territory government, haven’t you?---Yeah.

And you have participated in this process because you’ve wanted to do so, haven’t you?---Yeah.

Tell us why. Why have you wanted to be involved in this?---Because I don’t want any other young person to go through what I’ve gone through, and a lot of other young people just like myself have had bad upbringings, have bad behaviour problems, but locking them away and being bashed or being harassed, being slammed, nothing justifies that. If we walked up and did it on the street just because


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someone said something to us or someone did something to us and we retaliated by picking them up and slamming them, we would be put in prison or there would be justice for it, and I just hope that some sort of justice or some sort of stuff comes out of this Royal Commission to help every other young person who has gone through this, so it doesn’t happen again.

COMMISSIONER WHITE: Mr Voller, if you could design a facility for young people who have got into trouble and – with the law in a serious way, not just for - - -?---Yes.

- - - smallish offences, which are nonetheless criminal offences, but in a big way, what kind of facility do you think would be appropriate, if you thought about it, to keep the community safe and to assist those young people to find a better path in life?---Yeah. I do believe that you know, serious offenders do – there is a need – there is a need for detention, but there’s a way the guards and the staff in detention should be changed. They should have more – more counsellors, more mental health people, more activities, more activities on – on their sort of offences, so whatever their offence is, they should have more programs to – on those offences to help them, so they don’t reoffend, or help – and more programs to continue helping them when they do get released, not just let them out the front gate and then that’s it. Have more programs to help them get accommodation and help them get jobs once they’re out, not just chuck them out the gate and off you go back into the world.

And what do you think would make a good Youth Justice Officer? What are the characteristics of those that you’ve met – and you said in your statements that were some good guards?---Yeah. There’s good guards, there’s people like Ian Johns who would always have time for us young people, and would come and sit down and talk to us, even if it was just through the door ..... he would open the window, come down and talk to us, and actually sit down and take the time, talk to us about how we’re feeling, our emotions, what it was like, if we’ve got family problems going on at home, talk to us, get us out, help us out, and just give us that attention that most of us young fellows need just to be able to sit down and have a role model to be able to talk to. And – yeah.

COMMISSIONER GOODA: Dylan, it’s Commissioner Gooda here. What role do you think Aboriginal culture could play in the detention setting?---I think, yeah, a lot more cultural activities in the detention centres would be good too, especially up in Darwin, that city region where they bring everyone from all over, like Nhulunbuy and ..... East Arnhem, and drop them off at Don Dale, and they’re just taken away from all their culture and they don’t get to have their cultural stuff that they do, their ceremonies, or talk to family, sorry business, stuff like that. They just get put into jail and expected to follow the non-Indigenous law and don’t get to participate in their cultural activities. But I think more elders visiting and more people like that to be able to come in and talk about their culture and do more cultural awareness and activities and stuff like that.


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And that’s important that people within the centre actually know, you know, that they have cultural competence, they know how to deal with - - -?---Yeah, I think.

- - - Aboriginal kids?---Yeah.

What do you say about that quality being embedded within a youth detention facility, particularly in the Northern Territory?---Yeah, I definitely think the workers, when started, they should have to go through some sort of training to learn some sort of about Aboriginal culture and what these young fellows coming – because Aboriginal culture and normal culture is completely different. There’s a lot of different aspects of what people look at and I think they should get some sort of understanding of the way Aboriginal people live and the way they go by things and stuff like that, and the language and stuff like that.

We had Mr Marius - - -

COMMISSIONER WHITE: Puruntatameri.

COMMISSIONER GOODA: - - - Puruntatameri come here and talk about things like obligations that Aboriginal people have within their families, within the communities?---Yeah.

And talked about the positive obligations about, you know, lots of times doing the right thing. Do you think Aboriginal culture can be used like that to actually reinforce those good things about Aboriginal culture, not just what we see mostly in the news, bad things about our culture?---Yeah. Well, I’m actually grateful to meet Marius when he come into Don Dale doing the elders program and I think having more people like him come in, like strong indigenous role models in the community and making that point. They’re not – not all Aboriginal people are the same, there’s people that are out there, people like who come to support me, Joe Williams, who’s indigenous people taking a stand, trying to help other young indigenous people to do the right thing and prove that we can all work together and all succeed.

Thank you.

COMMISSIONER WHITE: Sorry, Mr O’Brien, we took over your re-examination.

MR O’BRIEN: No. I’m grateful that you did, because I wanted to pick up on one of those topics that Commissioner Gooda raised and that is the concept, Dylan, of mentoring. Joe Williams who you mentioned is a mentor and, in fact, is fairly well-known as a mentor?---Yes.

What do you think about the concept of mentoring within the juvenile justice system?---Yeah, I think mentoring is a good thing, because young people can either go one way or go the other way. They can have someone good to look up to and they can follow their – follow the way they’re going, or they can have someone bad to look up to, and if they get that pressure to follow the good ways, then they’re


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going to go the good ways. But if they’ve got too much temptation dragging and taking them the bad ways, they’re going to follow the bad way, end up back in prison, and what’s the point if, once they ..... they will look up to the older – they can either look up to the older fellows in prison, that are doing the worse off things and try and follow them, or they can have that good role model and mentor, someone like Joe Williams who goes in and visits the detention centres, or even people like the local Red Dust Role Models who go in there, they can follow them and follow the way that they’ve gone and follow their lives, and follow the way that they’ve gone so they can be like them and look up to them.

I want to move to another topic, if I may, briefly?---Yes.

I know it has been a long day. You’ve been, to a large extent, the public face, I imagine, of this Royal Commission in a significant way?---Yes.

And there’s been a great deal of media attention associated with you?---Yes.

And some of it has not been particularly friendly. How has that been?---Well, it’s kind of hard because a lot of stuff gets leaked out, some of it I don’t even know about, and I just had to deal with it. I mean, I get people walking up to me, get negative comments on social media, people in boxing me, threatening me, whatever, doing stuff like that, and I just guess I have to ignore it. And it’s really – it’s hard, but I guess I just have to ignore it and I can’t do anything.

And you’re the only young person who’s given evidence giving your full details and being exposed to cross-examination. Do you think that’s had a toll at some – in some way on you?---Yeah. I mean, today has been pretty hard. I’m just lucky I’ve got support around and it’s something that I wanted to do, to prove that I’m not hiding anything, and I don’t care if I get cross-examination. The truth is – the truth is what it is. I was a young person, and I used to play up, but nothing justifies what happened to me and other young people inside the detention centre.

Mr Voller, you – I think it’s – I’m not going to take up any more of your time. I think that if you’ve got anything further to say to the Commissioners that you think might be of some utility, I will offer you the opportunity now to say that?---Yeah.

Otherwise, I think we will call it a day, for me at least?---Yep.

COMMISSIONER WHITE: Are you going to ask some questions, Mr Callaghan?

MR CALLAGHAN: I’ve got one brief question. Sorry.

MR O’BRIEN: I do have to cover something.

Mr Voller, you were asked questions by the Solicitor for the Northern Territory, Ms Brownhill, that – in relation to the – the differences in the statements. Remember being asked about that?---Yep.


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And I want to ask – I wonder if you could tell the Commissioners about the circumstances in which you, me, Ms Goodhand, Mr Indevar and others came to assist you with the presentation of that first statement. You were in jail. Tell us about the taking of that statement, it was a long process, wasn’t it?---Yeah. I was in jail, I think it was for about three weeks, maybe three or four hours just sitting in a tight – or two hours, two, three hours, just sitting in a small room, not being able to go to the toilet, not even being able to drink water, just sitting there, hour after hour, minute after minute, just talking, and writing this down. So that’s the only reason why – there is some sort of, like, mistakes in the typing. There’s nothing trying to get hidden. There’s nothing trying – otherwise I wouldn’t have gone back and fixed it up on the other statement.

And would you agree with me some of the statements were made by your lawyers as opposed to you, for example, the misnaming and so forth of youth workers?---Yeah. Just miscommunication, just like misheard the names, I mean, working pretty tired.

Yes. You didn’t – did you mean to make false allegations against people in putting names down that weren’t accurate in that first statement?---No. No, I wouldn’t. All my claims are serious claims, and I wouldn’t want to, like, make false allegations. This is a serious thing that’s happened and I just want something to be done about all this.

And when you came to make that second statement, how was that taken? You were out of custody, and how was that? A bit easier?---Yeah, it was a lot easier, but yeah, still pretty tiring.

Yes. Alright. Mr Voller, thanks very much for your time.

COMMISSIONER WHITE: Thanks, Mr O’Brien. Now, finally, Mr Voller, Mr Callaghan, who’s senior counsel assisting, is going to tidy up a few things, then we’re done?---Yeah, thanks.

<RE-EXAMINATION BY MR CALLAGHAN [4.42 pm]

MR CALLAGHAN: And there’s really just one aspect of the evidence. And I’m sorry to take you back, after those general matters. I just want to take you back to one specific aspect of the evidence which might be thought a bit troubling and it’s this: idea that recurs in different places of the evidence of you making threats against family members of detention staff. You know the sort of evidence I’m talking about?---Yeah, I do.

And more than one person suggested – or in more than one place in the evidence the suggestion has been made that you have made those sorts of threats. Now, do you acknowledge that you did make those sorts of threats on occasions?---Yeah. I acknowledge that I did make empty threats that was completely immature, that I

.ROYAL COMMISSION 20.4.17 P-2682 D.J. VOLLER RXN©Commonwealth of Australia MR CALLAGHAN

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never meant, and I would never follow through with them, and I just said it because I was angry and I apologise to all those people that I have said those silly things to.

And I just want to explore a little bit more, perhaps. Have you still got your second statement there, the 8 April statement?---Yeah.

Can I take to you 173 – paragraph 173?---Yeah.

This involves one of those accusations where it was said that you threatened to rape Mr Tasker’s grandchildren. You deny that, but can I just explore that with you because you go on and at the end of that paragraph you talk about him saying to you [REDACTED]. Would have been about - - -

COMMISSIONER WHITE: Isn’t that redacted?

MR CALLAGHAN: I’m sorry.

COMMISSIONER WHITE: It is on my copy.

MR CALLAGHAN: I’m sorry. You talk about – we will cut that. But you talk - - -

COMMISSIONER WHITE: Can you delete that from the transcript. Thank you.

MR O’BRIEN: It’s not redacted.

COMMISSIONER WHITE: It is on my copy.

MR O’BRIEN: Shouldn’t be redacted.

COMMISSIONER WHITE: It was in response to requests to make no reference - - -

MR CALLAGHAN: I’m sorry, the copy I was provided with .....

COMMISSIONER WHITE: It’s on mine. I suspect it – I suspect it slipped in, in view of what’s in 174 and it shouldn’t be on mine. I’m happy to accept that if it’s not on both of yours. It’s one that’s on mine and shouldn’t be there.

MR CALLAGHAN: Okay. Well, part of it is.

COMMISSIONER WHITE: Ask the question.

MR CALLAGHAN: I can ask it this way - - -

COMMISSIONER WHITE: No, you can ask the question, Mr Callaghan, it’s an error on the copy I have.


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MR CALLAGHAN: There was – you accused Mr Tasker of seriously insulting you; is that?---Yes. Correct.

What me said to you, or what you say he said to you, was a truly disgraceful, upsetting revolting thing to say, wasn’t it?---Yes. And because of what he said I ended up going off a lot more punching walls and kicking doors, because I got extremely agitated, angry, after he said it, because he walked past my back window, and knocked on the window. When I went there to have a look who it was, he said that, and then went home.

And that’s what I want to explore with you. I mean, the situation – your reaction as you describe it sounds like what might be called an absolute blind rage, and perhaps understandably so. Would you agree with that?---Yes.

And in those circumstances, might it have been that you might have said something in the way of a threat to someone’s family and - - -?---No.

- - - not remember it?---I couldn’t have said it to him, because as soon as he said that to me he walked straight off out the gate and went home.

Okay. Sorry, leave that specific situation aside?---Yeah.

Might it have been the case that, under that sort of provocation you would make these sorts of threats and you might not remember it afterwards?---Yeah, that didn’t happen a lot, I used to get irate, I’d go off for a couple of minutes and then I’d sit down and I’d remember what I’d say and I’d sit down and – some – most of the time I’d even cry and ask myself, “Why would I say that?” Because that’s something I would never even do, and I wouldn’t even do.

Okay. So on some of these occasions even if you haven’t specifically admitted it, if someone has suggested you might have said these things, they might be telling the truth. You might remember it?---?---Yeah.

But it would have occurred because of some sort of provocation or some incident that triggered a reaction like that. Is that the way we can assess that sort of evidence?---Yes – yes.

Okay. Look, that’s the only thing that I wanted to tidy up with you. There is one other aspect of the evidence which we want to explore in a closed court.


MR CALLAGHAN: So we just – it will be really quick. We know you’ve - - -?---Yeah.

- - - had a long day. But I think we have to adjourn to do that. If we can ask you to hang around for a few more minutes.


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COMMISSIONER WHITE: We need 15 to do it?---Yeah.

Mr Voller, to do the closed court procedure takes up to 15 minutes?---Yes.

So if you want to go for a walk – I don’t mean – I’m not suggesting you go away but - - -?---Yes.

- - - if you want to stretch our legs or do something, you have got time to do that?---Yes.

We will adjourn then until we get the call that the courtroom – the hearing room is ready. Thank you.


ADJOURNED [4.47 pm]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

MATTER ADJOURNED at 5.29 pm UNTIL FRIDAY, 21 APRIL 2017


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Index of Witness Events

BARRIE CLEE, RECALLED AND RESWORN P-2566FURTHER EXAMINATION-IN-CHIEF BY MR

CALLAGHANP-2566

CROSS-EXAMINATION BY MR O’BRIEN P-2573CROSS-EXAMINATION BY MS BROWNHILL P-2602RE-EXAMINATION BY MR CALLAGHAN P-2603RE-EXAMINATION BY MR LEWIN P-2603

THE WITNESS WITHDREW P-2605

MICHAEL HUGHES, SWORN P-2607EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-2607CROSS-EXAMINATION BY MR O’BRIEN P-2608


DARREN FOREMAN, SWORN P-2611CROSS-EXAMINATION BY MR O’BRIEN P-2613


DYLAN JAMES VOLLER, RECALLED AND RESWORN P-2617FURTHER EXAMINATION-IN-CHIEF BY MR

CALLAGHANP-2617

CROSS-EXAMINATION BY MS BROWNHILL P-2618THE WITNESS WITHDREW P-2651

DYLAN JAMES VOLLER, RECALLED P-2651CROSS-EXAMINATION BY MS BROWNHILL P-2651


DYLAN JAMES VOLLER, RECALLED P-2663CROSS-EXAMINATION BY MR TIWANA P-2663CROSS-EXAMINATION BY MR LEWIN P-2668CROSS-EXAMINATION BY MR TIPPETT P-2673CROSS-EXAMINATION BY MS BALLARD P-2675RE-EXAMINATION BY MR O’BRIEN P-2677RE-EXAMINATION BY MR CALLAGHAN P-2682


Index of Exhibits and MFIs

EXHIBIT #294 FURTHER STATEMENT OF MR CLEE DATED 13/02/2017

P-2567

EXHIBIT #295 INTENSIVE MANAGEMENT PLAN OF 14 NOVEMBER FOR DYLAN VOLLER

P-2573


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EXHIBIT #296 TRANSCRIPT OF INTERVIEW WITH THE CHILDREN’S COMMISSIONER DATED 06/10/2015

P-2573

EXHIBIT #297 FMH CMS/FMHS AT RISK NOTES 7 DECEMBER TO 9 DECEMBER 2010

P-2592

EXHIBIT #298 SUBMISSIONS IN RESPONSE TO SUBMISSIONS OF SOLICITOR-GENERAL

P-2595

EXHIBIT #299 ABC.0001.0001.0256 P-2601

EXHIBIT #300 STATEMENT OF MICHAEL HUGHES DATED 05/04/2017

P-2607

EXHIBIT #301 TRANSCRIPT IF MICHAEL HUGHES INTERVIEW WITH CHILDREN’S COMMISSIONER DATED 07/10/2016

P-2608

EXHIBIT #302 STATEMENT OF DARREN FOREMAN DATED 05/04/2017

P-2612

EXHIBIT #303 TRANSCRIPT OF DARREN FOREMAN INTERVIEW WITH CHILDREN’S COMMISSIONER

P-2612


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