Submissions on Behalf of the Northern Territory Responding to

SUBM.1017.002.0032_R
IN THE ROYAL COMMISSION INTO
INSTITUTIONAL RESPONSES TO
CHILD SEXUAL ABUSE
AT DARWIN
RETTA DIXON HOME
CASE STUDY 17
SUBMISSIONS ON BEHALF OF THE NORTHERN TERRITORY
RESPONDING TO SUBMISSIONS DATED 27 OCTOBER 2014
A.
Experiences of fo1·mer 1·esidents
1.
The Territory makes no submission in relation to the experiences of former residents,
beyond acknowledging that the survivor accounts were both han·owing and disclosed a
lack of systemic protections, entirely unsatisfactory scmtiny by those in positions of
authmity, and the absence of any fomm or avenue by which the children's complaints
could be made and addressed appropriately.
B.
Commonwealth responsibility for residents of the Retta Dixon Home
2.
The Tenitory makes no submission in relation to Commonwealth responsibility for
residents of the Retta Dixon Home. The Ten·itory refers to its written submissions
dated 27 October 2014 to the effect that following the grant of self-government on
1 July 1978 the newly established body politic did not exercise any degree of
management, control or administration in respect of the Retta Dixon Home, and did not
have any institutional relationship with the Retta Dixon Home.
C.
Response of AIM to allegations of child sexual abuse by residents
3.
The Ten·itory makes no submission in relation to AIM's response to allegations by
residents of sexual abuse.
SUBM.1017.002.0033_R
2
D.
Response of Commonwealth to allegations of child sexual abuse by residents
4.
The Territory makes no submission in relation to the Commonwealth's response to
allegations by residents of sexual abuse.
E.
Police investigation and prosecution of Donald Henderson and DPP response
5.
Detective Sergeant Roger Newman (now retired) investigated the complaint against
Donald Henderson by AJB received by police in 1998.
6.
During the course of that investigation the officer received further complaints from
AJD, AKU and AJE.
7.
Charges were laid against Donald Henderson on 4 June 2001.
8.
The investigation was challenging for a number of reasons, including that the
allegations thirty to forty years old, and that the circumstances giving rise to the
allegations, together with the nature of the conduct alleged and particular cultural
factors, were such that some of the victims and witnesses were reticent and reluctant to
become involved.
Reluctance of witnesses and victims
9.
After receipt of the original complaint and statement of AJB on or about 4 June I 998,
Detective Newman made enquiries of the Stolen Generation Litigation Unit regarding
fu1iher complainants. 1
10.
Detective Newman was told by someone in the Stolen Generation Litigation Unit that
many of the people that could potentially provide assistance did not want to become
involved 2 That advice appears to have been COJTect, as the note for 22 September 1998
states that no contact had been made as of that date by any ofthe other alleged victims?
Exhibit 17-21, items 4-7.
Statement of Roger Newman dated 15 September 2014 (Exhibit 17-15), para 49.
3
Exhibit 17-21, item 8.
SUBM.1017.002.0034_R
SUBM.1017.002.0035_R
4
between the pursuit of the complaint in the public interest and the need to avoid any
appearance of procuring the complaint. 9
16.
Detective Newman believed that "shame" was the reason for the reluctance of AJD,
and that even the statement he gave was not the whole of what he could have said:
It is the reporting member's opinion that AJD has been sexually assaulted on
more than one occasion by Henderson but due to the "shame" that he expressed
during the taking of the statement he did not divulgefia-ther.
17.
10
The process oflocating AJE took approximately two months, and it took a futiher eight
months and a great deal of persistence on Detective Newman's pati before AJE signed
a statement. 11
18.
After AJE's third non-attendance to provide a statement, Detective Newman was told
by atl associate of AJE that:
... the reason for the previous non-attendance was due to [AJE} wanting to let the
past go and get on with his life.
19.
12
That was something AJE spoke about in a different context. During the course of the
committal proceedings in February 2002, he said that six years earlier he and his sister
had discussed making a complaint to the authorities about Mr Henderson. 13 However
he said:
I, we're too shamed to let it out. 14
9
As Detective Newman noted in his statement (Exhibit 17-15) at para 68 concerning the same process
with AJE: "I knew from previous experience that gaining the confidence of a potential complainant in matters
such as this would not be easy. I was also careful to conduct myself so that the efforts are made to obtain a
statement from Mr [AJE] could not properly be characterised as soliciting him to make a complaint in the
conduct of any future prosecution. 11
10
Case Note 11383264 dated 14 February 2001 (not in Tender Bundle).
II
Exhibit 17-15, paras 58 to 68; Exhibit 17-21.
12
Exhibit 17-21, item 64.
13
Transcript of Committal Proceeding, page 97.
14
Transcript of Committal Proceeding, page 105.
SUBM.1017.002.0036_R
5
20.
In consequence they didn't go ahead:
... we sort of was going to just forget it and get on with our life and then all of a
sudden out of the blue, Roger come and see me and said about Don Henderson. 15
21.
In evidence Detective Newman said:
Mr AJE was very ashamed and he had trouble relating it to anybody, so it was
just a matter of giving him time, and if he didn't want to make it, then he didn't
want to make it, but there was a feeling that he did want to say something, that it
was just- he had it bottled up inside and he just couldn't release it over a short
period of time. 16
22.
These questions and answers followed:
Q. As a former detective who has actually headed up the sexual crimes unit, is
that a feature that you often see with alleged victims of sexual assault, that it
takes time for them to be able to talk to anyone about the allegations?
A. Yes, it is on some occasions, but I have found with indigenous people that it is
even more of a problem -the shame they experience in relation to it.
Q. So that's an added layer of difficulty, is it?
A. That's right, yes. It is a matter ofgaining their trust, I think.
Q.
So it is twofold, if you like - that not only are difficulties experienced by
persons who are non-indigenous, often, in expressing allegations of a sexual
nature, but then you have the added factor of an indigenous culture where it does
involve shame?
A. That's correct.
IS
Ibid.
l6
Transcript, C5036 (Day 47), connnencing at line 29.
SUBM.1017.002.0037_R
6
23.
When seeking evidence from AJF, who certain accounts suggested may have been
another victim, there seemed to be a similar problem. On 4 July 2000 he attended the
Police Station saying that he had been sexually abused between the ages of six and
sixteen. He was in such a state he was taken to the hospital. 17
24.
Tluee days later a doctor at the Hospital told Detective Newman that AJF was "very
keen to make a statement to Police". 18
25.
On 10 July 2000, AJF was interviewed by Police and said it wasn't tme he was just
. seek'mg. 19
attentiOn
26.
On 21 Febmary 2001, AJF was again spoken to by Police. He said he "did not wish to
pursue any action against Donald Henderson, but may change his mind in the future". 20
27.
Whatever the individual responses may have been, the following matters are clear:-
•
Despite the involvement of the Stolen Generations Litigation Unit, and wide
inquiry and contact with people who may have been involved in the matters the
subject of the initial complaint by AJB, by Febmary 1999 no further complainant
had come f01ward.
•
Complaints and statements were elicited from AJD and AJE after a long and
protracted process.
•
In the course of that process Detective Newman displayed empathy, patience,
sensitivity and understanding.
17
Case Note 8939341 dated 4 July 2000 (not in Tender Bundle); Exhibit 17-21, paras 86 to 93.
18
Case Note 9055017 dated 7 July2000 (not in Tender Bundle).
19
Exhibit 17-15, para 92.
20
Case Note 11440870 dated 21 February 2001 (not in Tender Bundle).
SUBM.1017.002.0038_R
7
The course of the investigation
28.
The investigation is described in detail at paragraphs 41 to !54 of Detective Newman's
statement (Exhibit 17-15), and in summary at paragraphs 133 to 162 of counsel
assisting's submissions.
29.
The submissions from counsel assisting suggest five available findings in respect of
Detective Newman's investigation. They are dealt with in tum below.
Addendum statements fi"om AJE and AKU to particularise the charges, and ji-om AJE in
respect of the incident described by AJC
30.
On II October 2001 and 21 January 2002, a prosecutor requested or suggested that
Detective Newman obtain further statements from the complainants with a view to
addressing the issues presented by S v The Queen21 •
31.
Detective Newman did not take the statements; 22 however to make a bald finding in
those tenns would be to suggest that there was some delinquency on his part and that
the failure adversely affected the evidence available.
Neither of those suggestions
would be reflective of the facts.
32.
The submissions from counsel assisting provide at paragraph 161:
Detective Newman did not obtain any further statements from AJE and AKU He
believed they failed to keep an appointment to do so.
33.
There is no basis on which to suggest there is some doubt that there was an
appointment or that the complainants failed to keep it.
34.
Detective Newman's evidence before this Commission was:
21
(1989) 168 CLR 266
22
The matter is dealt with at paras 161 and 162 of the submissions from counsel assisting.
SUBM.1017.002.0039_R
8
I !mow I made inquiries with AJE and AKU in relation to taldng a fitrther
statement and an appointment was made to take that statement, but the
.
appomtment
was not "cept.-?J
35.
At the committal proceedings on 7 Febmary 2002, Detective Newman's evidence was:
An appointment was made to speak to both her and [AJE] to take fitrther
statements but the appointment wasn't kept. 24
36.
That contemporaneous account under oath must be accepted in the circumstances.
37.
Detective Newman's evidence at the time continued that in making the appointment he
had spoken to AKU "tlu·ee or four weeks ago". 25
During the course of that
conversation, Detective Newman was told by AKU about an incident that was not in
her statement.
This was the incident in which AKU had been taken into Mr
Henderson's room in front of the minor, her head was placed between his legs, her
pants were pulled down, and she was hit repeatedly with a stick or cane? 6
38.
Although AKU subsequently did not keep the appointment with Detective Newman to
make a further statement, on 4 Febmary 2002 he drove her to see Mr Dooley at the
offices of the Director of Public Prosecutions. 27 During the course of that attendance
AKU told Mr Dooley about the incident in front of the miuor. 28 As a consequence, Mr
Dooley led evidence of that incident from AKU during the course of the committal
proceedings on 6 Febtuary 2002. She told the Couti that it had been the last act of
abuse she suffered at the hands of Mr Henderson and the "severest". 29
23
Transcript, C5188 (Day47).
24
Transcript of Committal Proceeding, page 181.
25
Ibid.
26
Transcript of Committal Proceeding, page 182.
27
Transcript of Committal Proceeding, page 171.
28
Ibid.
29
Transcript of Committal Proceeding, pages 134 -135.
SUBM.1017.002.0040_R
9
39.
That incident became the subject of one of the charges upon which the magistrate
committed Mr Henderson to stand tria!. 30
40.
AJE also didn't keep the appointment, but he too provided further particulars when he
gave his evidence during the course of the committal proceedings. That additional
evidence included details of additional occasions on which Mr Henderson had sexually
assaulted him in a similar manner, and also provided corroboration of his sister's
evidence concerning the incident in which Mr Henderson had broken her nose.
41.
When cross-examined about not telling the police about all of the things about which he
gave evidence AJE said:
I said to Roger yesterday and the day before, I said, 'There's a lot of things that I
should have put in there, Roger, but at that time doing the statement, whatever it
is, I just couldn't remember everything at once, you !mow', I didn't have the
ji-ame of mind then ...
42.
The appropiiate finding concerning AJE and AKU in this respect, if any is to be made,
is that Detective Newman made appointments with AJE and AKU for the purpose of
taking further statements as requested by the office of the Director of Public
Prosecutions; that AJE and AKU did not keep those appointments; that Detective
Newman subsequently took AJE and AKU to the office of the Director of Public
Prosecutions for a conference ptior to the commencement of the committal
proceedings; that at that time AJE and AKU gave futiher detail in relation to various
incidents; that evidence in relation to those matters as considered appropriate was led
by the prosecutor during the course of the committal proceedings; and that certain of
that evidence fmmed the basis of the counts on which the accused was committed for
trial.
43.
So far as the incident desciibed by AJC involving AJE and Mr Henderson is concerned,
it is of particular note that both AJE and AJC were called to give evidence in the
30
Transcript of Committal Proceeding, page 204; handwritten notes at JKI annexed to statement of
Wojciech Jacek Karczewski QC.
SUBM.1017.002.0041_R
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committal proceedings. The incident that AJC says he saw was not corroborated by
AJE.
There may have been reasons for that umelated to the reliability of AJC's
account.
44.
In his evidence in the committal proceedings on 5 Febmary 2002, Detective Newman
stated of AJE:
He also was ve1y ashamed, very reluctant, and the occasion that he told me thatthat he was physically aji-aid of Mr Henderson, even at this late stage, was - it
was middle to late last year, when I told him finally that the matter was going
ahead and that - that the charges had been laid and that we would be going to
court for it ... he told me that he had been thinldng about it and he was still afi"aid
... He even said ... 'Could he get a hit man to get me? Or something like that. 31
45.
Dming the course of the evidence AJE he was asked:
. . . did anyone come into the chook house or to the feed shed while you were
there- happened to be there either with Mr Henderson or by yourselj?
46.
He replied, "No". 32
47.
He also said both he and Mr Henderson had their pants on and he never saw Mr
Henderson's penis. 33
48.
That evidence discloses only two possibilities. The first is that the incident related by
AJC didn't happen. The second is that AJE was only willing to admit cetiain types of
sexual abuse. There is no basis on which to suggest that if a fonnal statement had been
taken by Detective Newman in the weeks leading up to the committal proceedings the
evidence would have been any different.
31
Transcript ofCommitta1 Proceeding, page 13.
32
Transcript ofCommitta1 Proceeding, page 114.
33
Transcript ofCommitta1 Proceeding, pages 115, ll7.
SUBM.1017.002.0042_R
II
49.
There is also an issue as to whether AJE was asked about that incident by Detective
Newman. Paragraph 146 of the submissions by counsel assisting states:
Detective Newman said he could not recall whether he asked AJE if any such
incident (as described by AJC) had occurred. He accepted he should have done
so.
50.
That submission is problematic. Dming the course of his evidence, Detective Newman
was asked about the allegations made by AJE in his statement. He was then asked the
following question:
After you obtained that statement, did you then obtain a fitrther statement ji-om a
person by the name ofAJC? 34
51.
He answered, "Yes, I did".
52.
In fact, the statement by AJC was made 2 March 1999. This was before AJE had been
located by Detective Newman.
AJE made his statement 5 January 2000.
The
significance of that sequence is apparent from the question that followed shmily
thereafter:
After you obtained that statement, did you go back to AJE and ask him whether he
recalled any incident in a store?
53.
Given the order in which the statements were taken there would be no reason to "go
back" to him. The answer, as one might expect to the question framed in those terms,
was that Detective Newman could not recall:
I cannot recollect. I may have. But I may not have either, because I think the
shame that he felt, iflze wanted to tell me about it, he would have told me about it.
I left it up to him.
34
Transcript, C5038 (Day 47).
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54.
There is then the following question and answer:
Q.
I suppose, to be fair to you, too, there might have been a criticism of you
prompting him or leading him into providing such information. Was that a factor
that you considered or -A. No, no, I certainly could have put it to him, I think, but- yes.
55.
That is the only answer given that could form the basis for the conclusion in the
submissions by counsel assisting that Detective Newman accepted he should have
asked AJE if any such incident (as described by AJC) had occurred .. It is not entirely
certain in the context what proposition the "yes" might have been answering. It seems
most obviously to be an answer to the proposition that Detective Newman may have
been criticised for prompting or leading AJE to a complaint concerning a particular
incident. If the answer was in any way responsive to the question, it cannot have the
meaning ascribed to it in the submissions.
56.
If Detective Newman did ask AJE about that incident, then it is inherently probable
having regard to the AJE's evidence given during the course of the committal
proceedings that Detective Newman received an answer to the effect that it was not
AJE. In those circumstances, there would have been nothing of relevance that might
have been included in a statement concemingAJC's account. If Detective Newman did
not ask AJE about that incident, that was of little or no account given AJE's subsequent
denial ofthe matter.
57.
The appropriate finding conceming whether Detective Newman should have taken an
additional statement from AJE in respect of the incident described by AJC, if any is to
be made, is that AJC had told Detective Newman of the alleged incident before
Detective Newman made contact with AJE; that Detective Newman cannot recall
whether he put the matter directly to AJE; that it is inherently probable having regard to
the AJE's evidence given during the course of the committal proceedings that AJE
would have denied the occmTence of the incident; and that ifthere was a failure on the
part of Detective Newman to ask AJE specifically about the matter that failure was
inconsequential.
SUBM.1017.002.0044_R
13
No attempt to re-inten>iew the complainants from the 1975 charges
58.
Paragraph !52 of the submissions by counsel assisting states:
[Detective Newman] did not try and re-interview any of the complainants fi"om
1975 and can now provide no explanation as to why he did not do so.
59.
The evidence underlying that submission was as follows:
Q. Did you consider going back to those children who had been named in those
committal proceedings and obtaining ji1rther statements ji-om them as adults?
A. I would have at the time, and I can't say why I didn't do it, but I don't think I
went back and spoke to any of them.
Q. Can you provide now, loo!dng back, any explanation for why you didn't do
that?
A. No, I don't think I can.
IfI had time to think about it, I may come up with an
answer.
60.
The complainants in 1975 were AJT (14), AKN (9), AJS (8), AJW (7) and AKP (5).
61.
There is evidence from Detective Newman's Investigation Diary that in the early stages
of the investigation he did consider re-interviewing the complainants. On 26 February
1999, he made enquiries of the records and AKR. 35
62.
On 3 March 1999, the following entries were logged on the Investigation Diary: 36
NEWMAN reports names of persons who offences were committed against &
whom HENDERSON was questioned about 1975- AKN -Tortilla Flats (refer to
photocopy ofROI's by Alex CAROLYN)
3S
Exhibit 17-21, items 21-23.
36
Exhibit 17-21, items 37-38.
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14
NEWMAN spoke to Alexis FRASER DPP re-relaying of previous charges after
originals have been nolle'd. OK to do providing fresh information (eg. Similar
fact evidence) is to hand.
63.
One of those persons, AJT, had also been identified as a possible victim by AJC in his
statement made to Detective Newman the previous day. (He was also identified by
AJD at a later time.) Attempts were made to find him from I 0 January 2000
37
through
to 5 March 2001, when his case worker at the Bob Goldsmith Foundation in Sydney
advised that the number he had for him was no longer current but he would let Police
know if he carne into contact with him. 38
64.
However, it seems that having made the decision in February 1999 to pursue the
complaint by AJB "singularly", the resources of the investigation were channelled to
those persons identified by AJB and the group of names that Detective Newman had
identified as at 24 February 1999.
65.
It is also necessary to bear in mind the following matters concerning the relationship
between the 1975 complaints and the matters then under investigation by Detective
Newman:-
•
It was unnecessary for Detective Newman to interview the 1975 complainants to
detennine the nature of their allegations. He had access to the statements that
have been taken at that time, and to the transcript of the committal proceedings.
•
AJT was the only one of the 1975 complainants who had been identified as a
possible victim by AJC. AJT could not be located, and was apparently leading a
chaotic lifestyle.
•
The incidents the subject of the 1975 complaints were quite distinct from those
made by AJB in 1998 (and subsequently by AJD, AJE and AKU), in terms of the
time of their occurrence, their locus, and the victims involved. Those matters
31
Case Note 6028777 dated 10 January 2000.
38
Case Note 11515022 dated 5 March 2001 (not in Tender Bundle).
SUBM.1017.002.0046_R
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being so, it is speculative to suggest that the 1975 complainants could or should
have been called to provide corroborating evidence in the prosecution initiated in
2001.
•
The question whether the incidents the subject of complaint by AJB in 1998 (and
subsequently by AJD, AJE and AKU) provided sufficient basis upon which to
relay the charges in respect of the 1975 incident was a matter that could not
properly be determined until the prosecution initiated in 2001 was concluded. As
events came to pass, that prosecution was discontinued. It is entirely unsurprising
in those circumstances that no further consideration was given to reinterviewing
the 1975 complainants with a view to relaying those charges.
66.
Resourcing issues are always a factor. In that respect, Detective Newman identified the
following matters in his statement: 39
•
At its establishment in 1993, the Sexual Crimes Unit ("SCU") had two staff. At
the time of Detective Newman's retirement in 2003, the SCU had a staff of seven.
•
In addition to Detective Newman's personal case load, he was responsible for
staff of the SCU and the general running of the Unit. Those duties included
monitoring and allocating new complaints; preparing reports in relation to
statistics and matters that were of interest to Police management; checking the
prosecution files of other members before submission to Police Prosecutions or
the Office of the Director of Public Prosecutions; checking members' diaries and
time sheets; liaising with other Goverrunent Departments in relation to sexual
assault and child abuse issues; and attending after-hours callouts.
•
Call outs after hours in relation to sexual assault were very common, and travel to
remote areas of the Northern Te!Titory to investigate sexual assaults and related
matters were not uncommon.
39
Exhibit 17-15, paras 22 to 31.
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16
•
The SCU was a very busy area, with individual members of the Unit, including
Detective Newman, having a personal caseload on occasion in excess of 20
investigations running concurrently.
•
Members' caseloads consisted of both current and historic sexual assault
complaints against both adults and children which had ocCUlTed throughout the
Northern Territory, and historical sexual assaults which had allegedly occmTed
interstate but where the complainant resided within the Northern Territory.
•
During the period of the Retta Dixon investigation, Detective Newman was also
responsible for conducting other investigations into serious crime from other
areas
within
the Notihern Territory Police.
These matters
homicide/manslaughter investigations and coronia! investigations.
included
During the
latter period of the Retta Dixon investigation, Detective Newman also conducted
an operation in relation to identifying and arresting suspects from previous
Crimes as a result of recovered DNA matetial.
•
During the period of the Retta Dixon investigation, Detective Newman's duties
also included attending the Magistrate and Supreme Courts as a witness in
relation to other matters he had investigated.
67.
Those factors must necessarily have compelled a degree of prioritisation. Any finding
made in relation to the detennination not to reinterview the complainants from the 1975
charges must be made with those resourcing and contextual matters in mind.
No contact or efforts to contact AKV again (either through his sister or directly) and take a
statement from him
68.
AKV came to the attention of Detective Newman on 12 February 2002, after the
conclusion of the committal proceedings. AKV's sister had seen a report relating to the
committal in the newspaper and called the prosecutor, who then passed on her details to
Detective Newman. 40
40
Exhibit 17-17, Case Note 14376938 dated 12 December 2002.
SUBM.1017.002.0048_R
17
69.
Detective Newman made contact with AKV's sister . Among other infonnation she
provided, the notation of the conversation includes these words:
Her brother AKV who now lives at Jabiru was also a victim of Henderson. She
has spoken to her brother and now that he realises that his name and picture
won 't be put in the paper then he would be willing to speak to me about what
happened. AKV was very frightened that as he is a well-known person then to
reveal what happened to him at the hands of Henderson would be very
embarrassing for him and hisfamily. 41
70.
AKT undertook to contact AKV and get him to call the Detective 42 She made a
statement, the last paragraph of which read:
My brother AKV has also spoken to me and he has indicated to me that something
may have happened to him but he is too ashamed to talk to me about it but he did
say that he would give you a ring. 43
71.
That statement is undated, but its terms suggest clearly that it was made before AKV
had any contact with police concerning the matter. There is a lengthy case note which
was made on 14 Febmary 2002 detailing a conversation between Detective Newman
and AKV. It commences with the words,
Newman reports contacting AKV after being contacted by his sister AKT. 44
72.
It ends with the words:
AKV is now shifting from Jabiru to Lake Evella and will be there for a least a
year. AKV will call and advise me of his phone number and also contact me
personally on his next visit to Darwin.
41
Ibid.
42
Ibid.
43
Exhibit 17-15, Annexure RN9.
44
Exhibit 17-16, Case Note 14400880 dated 14 February 2002.
SUBM.1017.002.0049_R
18
73.
In his evidence to the Royal Commission, AKV stated that his recollection was that he
met the police officer at a coffee shop. 45 His further recollection was that he was
working at J abiru at the time, there was a phone call and thereafter they met in Darwin
at the invitation of the police officer. After that meeting he was expecting to hear from
the Police Officer again but he didn't hear from him.
74.
The relevant passage of AKV's evidence m response to questions fi·om counsel
assisting was as follows: 46
Q. After you spoke with the police officer, did you follow up with him?
A. No, I didn't, because there was no phone number, there was no emails, there
was nothing- absolutely nothing- no trace of being able to contact the detective.
Q. Is it your evidence that you never heard backji-om him?
A. No, didn't hear nothing. There was just nothing, absolutely nothing.
Q. Did you give him your details?
A.
Well, I did, because he was able to ring me up in Jabiru. He had my details,
he !mew what street I lived in and knew where I worked. He knew eve1ything
about me in that sense of contacting.
Q. After you spoke with him in the coffee shop, did you move at all, or did you
stay at the same address?
A.
Well, no, I was at the same address. I worked and lived in Jabiru for several
years.
75.
Detective Newman was asked about his recollection in the following passage:
4S
Transcript, C4908 (Day 46).
46
Transcript, C4911 (Day 46).
SUBM.1017.002.0050_R
19
Q. Did you meet with AKV?
A.
I don't believe I did. I believe that his evidence is that I met him somewhere
for coffee. He may be right, but I don't recall that. My recollection is that I took
the information that he provided by phone. It could have been two meetings, but I
don't recall that either.
76.
The entry for 13 February 2002 from Detective Newman's appointment diary, which
was not located until after the conclusion of the heating, reads as follows:
Take details over the phone ji-01n [AKV] re Retta Dixon/Henderson matter
([AKV] in Jabiru).
77.
Although it is possible that Detective Newman spoke to AKV by telephone on 13
February 2002, and subsequently spoke to him in person on 14 February 2002, the
more likely scenario is that the conversation took place by telephone on 13 February
2002, and the details from the conversation were entered into the Investigation Diary on
14 Febmary 2002. This is the more likely scenario because:
•
The reference in the diary entry to taking "details over the phone" is consistent
with the substantive discussion taking place at that time.
•
If Detective Newman made arrangements to speak to AKV in person on 14
Febmary 2002, it would be expected that those anangements would have been
recorded in the diary entry for 14 Febmary 2002.
•
The appointments diary does not record any meeting with AKV on 14 Febmary
2002.
•
Jabiru is 255 kilometres from Darwin.
•
The day of 14 Febmary 2002 was a work day (Thursday).
SUBM.1017.002.0051_R
20
•
The case note was written at 1 I I 9 hrs on I 4 February 2002. If the conversation
did take place that morning, rather than the case note being an entry in respect of
a telephone conversation which took place the previous day, it would seem
unlikely that AKV drove the three hours from Jabiru to Darwin and had the
meeting with Detective Newman in a coffee shop all before I 100 hrs that
mornmg.
•
It would seem improbable that Detective Newman would invite AKV to drive
three hours to Darwin on a work day to find out what he had already found out by
phone the previous day, and without taking a statement.
•
The case note entry that that AKV would "also contact me personally on his next
visit to Darwin" would seem inconsistent on its face with the suggestion that they
had met personally that morning.
78.
So far as the question of further contact is concerned, the only reasonable inference
from the case note entry that "AKV will call and advise me of his phone number" is
consistent with the contemporaneous record that AKV was moving to Lake Evella and
did not have his new contact details.
79.
Had Detective Newman met personally with AKV in Darwin, it is likely that he would
have taken a statement from him. Detective Newman's evidence in that respect was as
follows: 47
Q.
Can I ask you this:
if you had met him in person, do you think you would
have made a note, a case note, or a handwritten note of that?
A.
I think I would have, and certainly I think I would have taken a statement
jiwn him instead ofjust making notes like this.
80.
That Detective Newman did not take a statement from AKV is consistent with a mutual
understanding that AKV would consider whether he wanted to take the matter further,
and would make contact with Detective Newman should he decide to do so. That
47
Transcript, C5085 (Day 47).
SUBM.1017.002.0052_R
21
Detective Newman would take that approach
IS
entirely consistent with his
understanding that men in AKV's circumstances were often reluctant to ventilate
allegations that they were the subject of sexual abuse when children (which was also
consistent with the account given by AKV's sister), that such matters had to be handled
with sensitivity, and that ultimately only AKV could determine whether to proceed with
the matter.
81.
Any present suggestion by AKV of a different understanding should be rejected for the
following reasons.
o
AKV's contention in evidence that he worked and lived in J abiru for several
years after his discussion with Detective Newman is directly inconsistent with the
the case note entry that states, "AKV is now shifting from Jabiru to Lake Evella
and will be there for a least a year".
o
The evidence of AKV should not be accepted where it vanes from the
contemporary notes of the Detective. 48
o
AKV's recollections, even when expressed with the greatest of ce1iitude, have
been shown to be faulty in significant respects.49 It is quite understandable that
AKV's memory would have been affected by ruminating on his grievance and a
degree of reconstruction.
82.
That no further action was taken in relation to AKV's experience at Retta Dixon Home
is regrettable.
If it is accepted that there was a mutual understanding as described
above, the fact that there was no fu1iher contact between AKV and Detective Newman
in the following months is understandable. As matters subsequently transpired, a nolle
prosequi was entered in respect of the prosecution that had been initiated in 2001. This
was a source of disappointment to Detective Newman, and quite probably to the
complainants.
48
See, for example, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)
(1999) 73 ALJR 306 at [93].
49
Transcript, C4914 (Day 46); Exhibit 17-14.
SUBM.1017.002.0053_R
22
83.
Even had AKV subsequently made a formal statement to Detective Newman detailing
his complaints, it is difficult to see that the evidence could or would have been used for
the purposes of the hial that had already been set for hearing, or that charges relating to
AKV's complaints could have been joined to the then subsisting proceeding.
No contact with AIM to find out the names of house parents who may have been of assistance
to the investigation
84.
Even after the exhaustive enquiry during the course of the Commission proceedings, it
is difficult to see how any of the evidence from the house parents would have been
admissible in charges against Donald Henderson.
85.
Mr Pattemore and Mr Wall gave evidence during the course of the committal
proceedings conducted in 1975 conceming their confrontation of Mr Henderson with
the allegations and their discussions with AJT about his complaint. That evidence was
of little utility, as the witnesses were unwilling to give evidence as to what was said
unless they could recall the exact words. That evidence might have been expected to be
even less cogent some 25 years later.
86.
So far as the particular complainants being investigated by Detective Newman are
concemed, the only evidence that could have been given by the other house parents was
hearsay in nature involving what children had told them or what they had overheard
about what was going on between Mr Henderson and some of the children. It was little
more than mmour and suspicion. In particular, the only evidence that could be given
by AKR, Mrs Wall and Mr Pattemore did not include admissible evidence conceming
observations of sexual abuse perpetrated by Mr Henderson on the complainants, or
"first complaint" evidence.
87.
During the course of his investigations, Detective Newman did locate and speak to
AKR and Mr Pattemore.
SUBM.1017.002.0054_R
23
88.
AKR was reluctant to speak to Detective Newman concerning the matter, and there was
nothing she said that was admissible 50 Although Detective Newman recorded that she
obviously knew more, there was no basis on which to conclude that she would be able
to provide any admissible evidence, and no reasonable means by which her
involvement could be forced.
89.
Mr Pattemore was at best either unhelpful or in a confused state. 5 1 But again even after
hearing the evidence before the Commission it is difficult to see that he could have
contributed any probative evidence. His only real role was in bringing the complaints
to the attention ofMr Henderson and then the police in relation to the 1975 matters. He
also invited Mr Henderson to tender his resignation.
90.
The point is made at paragraphs 141 and 142 of the submissions by counsel assisting
that although Detective Newman's evidence was that Mr Pattemore appeared "confused
and vague", his contemporaneous file notes do not record that observation while
recording that Mr Pattemore said "he did not suspect anything happening with
Henderson". There is no inconsistency between Detective Newman's evidence and the
contemporaneous record, and no reason to doubt Detective Newman's recollection that
Mr Pattemore appeared vague and confused.
91.
Detective Newman's evidence was also to the effect that Mrs Pattemore had said that
her husband would have a nervous breakdown if pressed on the matter. Although
speculative, it may be that Mr Pattemore's disturbance was attributable in part to the
matters disclosed in Exhibit 17-31.
92.
It was put to Detective Newman in cross-examination that he should have made
enquiries of AIM as to the identity other house parents at the material time. 52 Detective
Newman indicated in response that he did not now know why he did not make contact
with AIM headquarters, but the fact was there was no basis to believe that house
parents had evidence likely to be of benefit to the criminal investigation then underway.
The evidence heard by the Commission does not lead to any different conclusion.
50
Exhibit 17-21, item 21. She told Detective Newman that she didn't want to become involved.
51
Exhibit 17-21, item 35; Exhibit 17-15, para 54.
52
Transcript, C5172 (Day 48).
SUBM.1017.002.0055_R
24
Did not take a statement from Mrs Lola Wall
93.
For the reasons discussed in the preceding section, it is difficult to see what purpose
would have been served by taking a statement from Mrs Wall.
94.
More generally, the suggestion that it is available to the Commission to make a finding
that Detective Newman did not take a statement from Mrs Wall would appear to be put
on the same basis as the failure to make contact with AIM to identify other house
parents from the material times. That is, it is predicated on a view that the police
investigation should have extended to the complainants in the 1975 proceedings, and
perhaps to investigation ofRetta Dixon Home generally.
95.
Although with the benefit of hindsight that is no doubt an attractive proposition, it must
be recognised that given the historical nature of the charges, the difficulty in locating
witnesses, and the reticence displayed at the time by certain of the victims and
witnesses to provide evidence, it would have been an Herculean task. As it was, the
investigation of the matters the subject of the initial complaint by AJB took
approximately four years.
Without the application of considerably more resources
(which raises policy and operational considerations that were not the subject of
consideration by the Commission), it would have required a choice between having the
extant complaints and charges dealt with by the courts in a timely manner and
conducting an exhaustive investigation of practices and events at the Home over many
years. It may be noted in this respect that the direct evidence of abuse heard by this
Commission covers a time span between 1947 and 1975.
96.
The essential anatomy of Detective Newman's investigation and the consequent
prosecution was as follows.
•
In or about February 1999, Detective Newman detennined to pursue AJB's
complaint in singularity after initial investigations disclosed that other alleged
victims and witnesses did not wish to pmiicipate.
SUBM.1017.002.0056_R
25
•
Thereafter, in the process of the investigation Detective Newman received further
complaints from AJD, AJE, and AKU.
•
Leading up to the committal proceedings in February 2002, Detective Newman
was of the view that the Crown had a good case with four complainants and
strong similarities in the evidence between the complainants.
•
The case was weakened by the death of AJB in January 2002, just a month before
the Committal Proceedings commenced.
•
There remained good prospects that Mr Henderson would be committed for trial
on the subsisting complaints.
•
Mr Henderson was subsequently committed for ttial on 15 counts.
•
The office of the Director of Public Prosecutions subsequently discontinued the
proceedings before tJial.
97.
Seen in this light, to say that Detective Newman could have done more is to do no more
than state the obvious. However, to put the proposition in a manner that suggests he
should have done more ignores the fact that it was not the parameters of the
investigation that brought about the discontinuance of the proceedings. The entry of
the nolle prosequi goes a long way to explaining on a practical and visceral level, if not
on an academic and intellectual level, why no further investigation was continued or
instituted concerning Mr Henderson's conduct at the Retta Dixon Home.
98.
It is beyond question that Detective Newman was a diligent, sensitive and
compassionate police officer, and even with the benefit of hindsight there is little about
his conduct of the relevant investigation that properly attracts criticism.
Police Guidelines and General Orders
99.
The submissions by counsel assisting state that it is available to the Commission to find
that prior to 2003, there were no policies, guidelines or general police orders which
specifically dealt with the investigation of historical sexual offences, or issues peculiar
SUBM.1017.002.0057_R
26
to indigenous witnesses.
Nor were there any courses or training on how to most
effectively liaise and deal with indigenous witnesses.
I 00. No issue is taken with that as a general statement of the situation obtaining prior to
2003. The following matters are put by way of qualification.
•
General Order Q I, Questioning and Investigations, and General Order Q2,
Questioning People who have dijjiculties with the English language - the
"Anunga" Guidelines, have been in place since 1998. These General Orders
provide guidance to investigators in respect of questioning persons, in pmiicular
where they have difficulties with the English language.
•
Since 1989, all police recruits have been given substantial structured cross
cultural training specifically focused on how to effectively liaise and deal with
indigenous people. Dealing with Aboriginal witnesses and victims has long been
a mainstream activity and competency in Northern Territory policing.
•
In 2002, the DPP introduced an allocated prosecutor for sexual assault matters.
•
The Evidence Reform (Children and Sexual Offences) Act 2004 commenced in
December 2004. The purpose and effect of the Act has been to: (i) reduce the
trauma experienced by child witnesses and other vulnerable witnesses such as
adults with intellectual disability in ciiminal proceedings for sexual offences; and
(ii) improve the quality of evidence fi·om those witnesses in c!iminal proceedings.
The Act achieved that purpose by providing for children and other vulnerable
witnesses to give evidence by pre-recorded statement; introducing time limits for
the prosecution of sexual offences; abolishing oral examination of children at the
committal proceedings for sexual offences; and introducing new provisions into
the Evidence Act regarding the questioning of witnesses, and child witnesses in
particular.
SUBM.1017.002.0058_R
27
o
In 2005, Northern Territ01y Cabinet approved additional funding of $200,000 per
annum for the prosecution of sexual offences, and the creation of the position of
Sexual Assault Prosecutor.
o
The Evidence of Children Amendment Act 2007 commenced on 10 October 2007.
The purpose of the Act was to refine the amendments made by the Evidence
Reform (Children and Sexual Offences) Act 2004. The four major amendments
that affected the prosecution of sexual offences and offences in which a child is a
witness were: removing the requirement that the written or recorded statement of
a child must comply with the Oaths Act to be admissible in committal
proceedings, precluding a child from giving oral evidence at the committal
proceedings where the offence charged is a sexual offence, where one of the
offences charged is a sexual offence, or where one of the offences charged is a
"serious violence offence"; allowing the use of recorded statements at a special
sitting; and precluding an alleged adult victim in a sexual assault matter from
being called to give evidence in committal proceedings.
o
In 2011, a dedicated Sex Ctimes Division was created within Northern Tenitory
Police.
o
In 2013, a Cold Case Task Force was established with a dedicated group of
detectives to conduct investigations across the Northern Territory focusing on
historical unsolved serious crimes. Its brief extends to historical investigations of
child sex abuse.
The DPP response
I 01. It is clear from the statement provided by the cunent Director of Public Prosecutions,
Mr Karczewski QC, together with the evidence given by him during the course of the
Commission hearing that five of the charges against Donald Henderson should not have
been subject to a nolle prosequi.
28
SUBM.1017.002.0059_R
102. It is also clear from Mr Karczewski 's evidence that the memorandum recommending
the discontinuance of the proceedings, and the manner in which they were subsequently
discontinued, did not comply with the DPP Guidelines in the manner described in
available findings contained in the submissions by counsel assisting.
F.
Out of home care in the Northern Territory
103. There is nothing in the submissions by counsel assisting concerning out-of-home care
in the Northern Territory that calls for any submission in response.
G.
Redress
104. The Territory makes no submission in relation to redress beyond directing attention the
statutory scheme described in Mr Shanahan's statement (Exhibit 17-37); and repeating
its written submissions dated 27 October 2014 to the effect that following the grant of
self-government on 1 July 1978 the newly established body politic did not exercise any
degree of management, control or administration in respect of the Retta Dixon Home,
and did not have any institutional relationship with the Retta Dixon Home.
105. The Territory has participated and will continue to participate m the round table
discussions and the provision of assistance to the Royal Commission with respect to
these issues.
Dated: 10 November 2014
per: Sarah Milligan
Director
Northern Territory Coordination, Response to the Royal Commission
Northern Territory Department of the Chief Minister