By KIERAN FINNANE
When in 2009 former Don Dale detainee Dylan Voller was remanded in custody to Aranda House in Alice Springs for the first time, it was for a number of criminal charges over a period of four months, including property damage at the school he was attending and assault on a classmate (punching him in the head). This record contradicts his statement to the Royal Commission that his contact with the detention system all began because he threw a rock at a window of his mother’s house.
This was among the many challenges to his evidence made by NT Solicitor General Sonia Brownhill SC when she cross-examined Mr Voller yesterday. Ms Brownhill acts for the Northern Territory as well as for a number of Youth Justice Officers and other government employees.
Mr Voller appeared by video link from outside the courtroom, where he was assisted by a legal representative and supported by family and others. As with his previous appearance before the commission, he maintained remarkable composure and was able to give clear and at times quite assertive answers to questioning.
Ms Brownhill’s questions about his early “criminal history” followed many about his early school experience. Combined with Mr Voller’s answers, it left a picture of a very troubled child, being dealt with mainly by medication (leaving him feeling sick at the end of the day) and confinement.
He would be placed in a “time out room” to quieten down but it seemed to have the opposite effect: he lashed out, breaking the louvre windows on one occasion, defecating in the corner on another. Mr Voller said that was only because he was not allowed to go to the toilet. But the door was not locked, suggested Ms Brownhill, it could be opened from the inside. Wrong, said Mr Voller, a staff member outside made sure it stayed shut, he wasn’t allowed to open it and couldn’t if someone was there holding it.
His shoes were taken from him because he’d used them to break the louvres; later his socks too were taken because he had tied them around his neck. He couldn’t remember that.
Ms Brownhill’s challenges, although they may have succeeded in adding some unacknowledged details and clarifying others, only compounded the prevailing picture of Mr Voller’s childhood and adolescence. What was happening at school was the start of a pattern that followed him into detention: difficult, at times very difficult behaviour on his part, and responses on the part of the adults around him relying a lot on confinement and isolation. It manifestly did little for him and the pattern is not only his to own.
She led him through a long litany of misdemeanours in the classroom at Don Dale – refusing to do work, being disruptive, yelling, walking around, physical fights (that happened once, countered Mr Voller). All this culminated in his exclusion from the school. She put to him that he was offered the chance to continue schoolwork outside of the classroom, but he rejected this: he was offered maths sheets in his room, “easy Year Two maths worksheets”.
To most of her assertions about his bad behaviour, Mr Voller agreed with the qualification of “sometimes”, but by the end of this part of the cross-examination, the main impression left was of impotence and failure on the part of authorities.
Then Mr Voller turned 18 and he was transferred to the adult prison, said Ms Brownhill.
Yes, he said.
That bald fact settled depressingly in the courtroom, like a sodden grey blanket.
Plenty more instances of appalling behaviour by detainee Dylan Voller.
Throwing urine on YJOs on a few occasions. Two, from what he could recall.
Urinating not in a toilet, to get his own way. Once, because he did not want to return from hospital to Don Dale.
Vile verbal threats against YJOs. He couldn’t remember.
But once again, when it got to putting the most extreme instances to him, the picture being painted by Ms Brownhill rebounded on the system she was representing. (This, of course, is a layperson’s response; it may have nothing to do with how the commission weighs up this evidence.)
We saw an adolescent boy early in the morning naked in his room, having put the only clothing available, an ‘at risk’ gown, into the toilet. He urinates on the floor.
On another occasion, his bedding has been removed, he is lying on top of an ‘at risk’ gown, there is faeces on the floor near the toilet.
To all these propositions Mr Voller kept repeating that he couldn’t remember. He did appear to be showing strain.
Little wonder that his lawyer, Peter O’Brien, got to his feet at this point to object. He suggested the cross-examination on these matters – allegations one after another of things that happened years ago – was simply designed to humiliate and embarrass the witness. There had not yet been any questions on the instances of physical force used against Mr Voller of which the commission had seen video evidence. What was the point of the questioning?
Ms Brownhill countered that in order to understand the actions of the YJOs, about which Mr Voller has made a number of allegations, it is necessary to understand the extreme nature of his behaviour. She rejected that it was designed to humiliate him, but said his credibility as a witness is an issue and that the way he has characterised his behaviour in his statements to the commission has been grossly understated.
Commissioners Mick Gooda and Margaret White conferred for a moment at this point.
Commissioner White then spoke in Ms Brownhill’s favour: unless the commission understands the difficulties largely untrained officers were facing, they won’t be able to appreciate what they were attempting to do to manage Mr Voller. But on other hand, it was unnecessary to explore every instance. She suggested Ms Brownhill had done enough.
But there was more to come. More about faeces on the floor and faeces in an ‘at risk’ gown, more that Mr Voller said that he did not remember. More objections from Mr O’Brien.
Then the questioning moved onto spitting. Several examples. Mr Voller agreed that he would spit, but it wouldn’t have been for no reason, there was no excuse for it, but he did it when he was tormented or extremely agitated or angry.
Being hog-tied. Ms Brownhill’s questioning arrived at the concession that Mr Voller’s legs were not always restrained but, he said, they were always pushed up hard behind his back while his hands were being tied.
It seemed like he had changed evidence in a couple of important respects, Ms Brownhill suggested.
Objection. He was clarifying, explaining.
Commissioner White said Ms Brownhill was entitled to test Mr Voller on these questions.
More chilling descriptions of his behaviour when he was left alone in his cell: tearing strips from his mattress, tying them around his neck; lying on floor, appearing unconscious, but jumping up and becoming threatening when the YJO entered; officers “ground stabilised” him so they could leave the cell; three hours later they were taking torn ‘at risk’ shorts from around his neck.
However the commission eventually weighs up all this, there was some force in Mr Voller’s comment: that staff could have done more for him other taking clothes out of the cell; someone could have made effort to talk to him, to see how he was doing, he said.
Just as there was some force to his answers when Ms Brownhill suggested that his evidence was that he doesn’t tell lies.
I haven’t lied to this commission, he said. I’ve probably told a white lie in my life, who hasn’t?
He told some lies while in detention, she said.
If the suggestion was about the complaints he made, no.
He told YJOs he intended to hurt himself, when he didn’t.
Objection. The questioning was unhelpful and damaging.
Commissioner White allowed it but expected Ms Brownhill would be “measured” in her approach.
Was Mr Voller bearing up? Commissioner White asked.
He said he was but added that he had been bullied that much and placed away from everyone, that if he had said he would kill himself, he wouldn’t call it a lie.
Ms Brownhill put it to him again: he had told YJOs he had done something to hurt himself when he had not.
On a couple of occasions, agreed Mr Voller, when no one would talk to him, and no one would listen.
This came close to the end of Ms Brownhill’s cross-examination. The hearing continued with much briefer cross-examinations by lawyers acting for various individual employees, including former Corrections Commissioner Ken Middlebrook (represented by Jon Tippett QC).
In the meantime, the commission had heard from Counsel Assisting, Peter Callaghan SC, in response to Ms Brownhill’s questions and challenges on the previous day about what the commission was going to do with Mr Voller’s evidence.
In brief, Ms Brownhill seemed to be suggesting that the commission do its job, he said, and there was every sign of it doing just that. It had taken evidence of vulnerable witnesses, but had also “sought, elicited or received responsive statements, responsive bundles of documents, statements of direct witnesses and, in the case of Mr Voller, given leave for him to be cross-examined. It has also issued adverse notices to persons affected, including the NTG and its current and former employees, to enable them to respond properly to evidence against them.”
But “natural justice” does not mean that every last “adverse piece of information” needs to be commented upon. There is no fixed formula as to how a royal commission takes evidence, but “significant and reasonable measures had been put in place to ensure the Commission’s processes are ‘robust, reliable and fair’”, said Mr Callaghan, quoting Ms Brownhill’s words back at her.
However, she had fairly raised the difficulties for the commission of Supreme Court proceedings relating to Mr Voller, and the commission should invite contributions from the relevant parties as to how this issue should be addressed.
The commission continues and next week will hear from Mr Middlebrook, as well as former Minister for Correctional Services John Elferink and former Chief Minister Adam Giles.