Ellyse McGee

From: Ellyse McGee Sent: To:

Wednesday, 25 September 2019 5:58 PM Lyncoln Chee

Cc: Alexander Jobe Subject: RE: Special Commission of Inquiry into the Drug 'Ice' - Custodial Services

Hearings Attachments: Letter to M Coutts-Trotter - 25 September 2019.pdf

Dear Mr Chee,

I refer to the email from Mr Alexander Jobe below, enclosing the Secretary's correspondence of yesterday's date.

Please find attached a response from Ms Sally Dowling SC, Senior Counsel Assisting, to the matters raised therein. I

would be grateful if this letter could please be brought to the Secretary's urgent attention.

Yours sincerely,

Ellyse McGee I Senior Solicitor Special Commission of Inquiry into the Drug 'Ice' GPO Box 5341, Sydney NSW 2001 IT: +6129228 5263 ellyse.mcgee@iceinguiry.nsw.gov.au I www.nsw.gov.au/iceinguiry

... •·• ..

· Liability limited by a scheme approved under Professional Standards Legislation. This email and any attachments may be confidential and/or privileged.

From: Alexander Jobe <Alexander.Jobe@justice.nsw.gov.au> Sent: Wednesday, 25 September 2019 8:16 AM To: Ice Inquiry Contact <inquiry@iceinquiry.nsw.gov.au> Cc: Ellyse McGee <Ellyse.McGee@iceinquiry.nsw.gov.au>; Lyncoln Chee <lyncoln.chee@justice.nsw.gov.au> Subject: Special Commission of Inquiry into the Drug 'Ice' - Custodial Services Hearings

Dear Commissioner,

Please find attached a letter from the Secretary of the Department of Communities and Justice regarding the custodial services hearing recommencing tomorrow.

I note that the letter has not been dated, however I confirm it was signed yesterday, 24 September 2019.

Please contact me if you wish to discuss.

Kind Regards

Alexander Jobe Senior Solicitor

Inquests, Inquiries and Representation Legal Department of Communities and Justice

1

SCII.007.057.0007Exhibit G

GPO Box 6 SYDNEY NSW 2001 P: 02 8346 1197 I alexander.jobe@justice.nsw.gov.au

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2

SCII.007.057.0008

...... ~ t f ',. · --..:

Special Commission of Inquiry into the Drug 'Ice'

25 September 2019

I\fr Michael Coutts-Trotter Secretary Department of Conununities and Justice Locked Bag 10 STRA \'</BERRY HILLS NS\X' 2012

By email: secretarv@justice.nsw.gov.au

Dear Mr Coutts-Trotter

Special Commission of Inquiry into the Drug 'Ice'

I haYe been provided with your letter of 2-1- September 2019, emailed on 25 September 2019, to Professor Dan

Howard SC, Commissioner of the Special Conunission of Inquiry into the Drug "Ice" ("the Inquii:y").

Before responding to the particular matters raised in your letter, I wish to point out that the Inquiry's hearing into

matters concerning custodial sen-ices is part heard and that \\1.tnesses from CorrectiYe Se1Yices NS\\' ("CSNS\'\"')

are li sted to give evidence tomorrow.

In relation to the particular matters raised in your letter I respond as follows:

Correction of tbe Record

I enclose for your consideration pages 3698 and 3699 of the transcript of the Inquiry's hearing into matters

concerning custodial services. As you will note, the passage about which you complain occurred during cross­

examination of Dr Martin, following a question from me at T3698.30. I\fs I\Iathur, counsel appearing for CSNS\V,

informed the Commission that the tender bundle was served at 8 pm on Tuesday '27 August 2019, which I

confirmed at T3698.--J.5. I then made the statement about which you now complain.

I note that annexed to your letter was a table listing various requests made by the Inquiry to the Department of

Communities and Justice ("the Deparunent"). The table you provided is incomplete and I attach a list of the

details of all requests for statements relating to the custodial hearing by the Inquiry to the Department, all requests

for extension by the Department and the dates of service of each statement. I note that documents relevant to this

hearing have continued to be se1ved by the Department up to yesterday's date.

In light of the service of a significant number of documents by CSNS\Xl up to -l-.-l-8pm on Tuesday '27 August 2019,

my co1ninents were neither "unfair" nor "inaccurate."

CSNSW Witnesses

In the Issues Papers published by the Inqui1y on 26 March 2019, the Commissioner sought submissions on, inter

alia, needle and syringe programs in correctional centres (Issues Paper 2: Justice [2.5.11 ]). Ultimately, CSNS\V

se1ved statements from three witnesses that addressed this topic, namely Assistant Commissioner .Anne-Marie

Martin, Assistant Commissioner Kevin Corcoran and Director Jeremy Tucker. The substance of their statements

on this issue was virtually identical. Each of those witnesses was smninonsed to give evidence. Mr Corcoran and

Mr Tucker have yet to give their evidence.

GPO BOX 5341 SYDNEY NSW 2001 Tel: (02) 9228 3333 I Email: inquiry@iceinquiry.nsw.gov.au

SCII.007.057.0009

I attach for your consideration pages 3666 and 3667 of the transcript of the Inquiry's hearing into matters

concerning custodial setTices. TI1e passage about which you complain constitutes my response to an objection

taken by counsel for CSNS\'\' at T3666.25. In my response I noted, correctly, tl1at CSNS\-X' had sen·ed a statement

from Assistant Commissioner l\Iartin on tl1e issue of needle and syringe programs in custody and tl1at my questions

directed to tl1e policies of CSNS\V on tlus issue \\·ere not unreasonable. In tlus regard. I note tl1at my question

was allowed by tl1e Commissioner (T3668.20).

It is entirely appropriate for se1uor counsel assisting a Special Comnussion of Inquiry to make tl1e point tl1at tl1e

Commissioner could reasonably expect tl1e Assistant Comnussioner of Sen-ices and Programs to giYe e,·idence about a policy tl1at she had already addressed in her s,vom statement.

TI1ere is no basis for your statement tl1at my submission was "some,vhat misleading."

For the reasons outlined abm·e, I reject entirely your characterisation of my conduct as "unfair", "inaccurate" and

"some,vhat misleading."

Finally, please note that I propose to tender to the Inquiry your letter and my response at tl1e hearing tomorrow.

Yours faithfully

s. Sally Dowling SC

Senior Counsel Assisting

SensitiYity label: NSW Government I Special Commission oflnquiry into the Drug 'lee' Page 2 of 2

SCII.007.057.0010

MS DOWLING: Can I take you over the page to 2624. The top of the page, where the United Nations says:

The authors of the analysis of studies of PNSP concluded that PNSP are not 5 on(vfeasible but effective, especial(v when embedded within a comprehensive

prison-based harm reduction and health promotion strategy.

And then in the box there, the grey-coloured box on page 2624, there's a summary, a dot point smrunary of the evidence of the PNSP programs from the countries where

1 0 they operate, and the second dot point states that they're:

Effective in decreasing the syringe sharing.

Do you see that? The third dot point - they're: 15

Not associated with increased attacks on prison staff or other prisoners.

The next dot point:

20 Do not lead to increased initiation of drug consumption or i1?jection. They actual(v contribute to workplace sc!fe(v.

So is that the first time that you've read about that research?

25 DR MARTIN: Yes.

MS DOWLING: Were you aware that it was in the tender bundle in preparation for this hearing?

30 DR MARTIN: No, I was not.

MS MATHUR: Sorry, it just should be placed on the record that the tender bundle became available five working days before the - three working days before the hearing started, namely, last Wednesday. So if there's any suggestion that the tender

35 bundle was available to Dr Martin when she wrote her statement, it was not.

THE COMMISSIONER: All right. I assume that that's an accurate statement, Ms Dowling, is it?

40 MS DOWLING: I - - -

MS MATHUR: 8 pm Tuesday.

THE COMMISSIONER: All right. 45

MS DOWLING: Yes.

.SPECIAL COMMISSION 5.9.19 P-3698 A.MARTINXN MS DOWLING

SCII.007.057.0011

THE COMMISSIONER: Thank you. That's noted.

MS DOWLING: Can I also say for the record that there was an ongoing rolling supply of statements from Corrective Services New South Wales that did hold up the

5 service of the tender bundle.

THE COMMISSIONER: Right.

MS DOWLING: There was a document that was tendered earlier in -yesterday or IO the day before yesterday called "Health Outcomes for Clients of Needle and Syringe

Programs in Prisons" that was published in 2018. Have you read that document?

DR MARTIN: Is that one of the documents referred to in the table cited earlier?

15 MS DOWLING: No, it's not. It's additional. Could the witness please be shown -I'm not sure the exhibit number.

UNIDENTIFIED FEMALE: Exhibit C.

20 MS DOWLING: Thank you. Exhibit C.

DR MARTIN: Thank you. Yes, I've looked over this one.

MS DOWLING: Is there any- I withdraw that. Can I take you to page I 01 of that 25 document.

30

MS MATHUR: Sorry. I'm a bit lost.

DR MARTIN: Page - - -

MS DOWLING: Page 101 of exhibit C.

MS MA THUR: Exhibit C.

35 MS DOWLING: Yes. So halfway down the left-hand column there, it - the authors state:

Opponents of PNSPs have also suggested that needles might be used as weapons against other prisoners or staff, or ndght othern1ise cause harm.

40 And again, that's the point that you make in your statement; is that right?

DR MARTIN: That's right.

45 MS DOWLING: And they go on to say:

.SPECIAL COMMISSION 5.9.19 P-3699

-----------------------~--- -----~ ····-··--· -·

A.MARTINXN MS DOWLING

SCII.007.057.0012

Special Commission of Inquiry into the Drug 'Ice'

SUMMARY OF STATEMENTS, SUMMSON TO PRODUCE AND REQUESTS FOR INFORMATION FOR CUSTODIAL HEARING

Tab Request Date Date Extension Date requested due granted provided

1. Jeremy Tucker 23/5/19 12/6/19 18/6/19 18/6/19 2. Linda Smith 4/7/19 25/7/19 22/7/19 3. Melanie Ha,,.ryes 5/7/19 26/7/19 25/7/19

(further matters arising from initial statement)

-J.. Jeremy Tucker 5/7/19 26/7/19 25/7/19 (further matters arising from initial

statement) 5. Sandra King 23/7/19 6/8/19 13/8/19 12/8/19 6. Jennifer Galouzis 25/7/19 8/8/19 8/8/19 7. Letter sent to DOC] requesting further 25/7/19 2/8/19 5/8/19 5/8/19

i.nfom1ation arising from statements of Jeremy Tucker, Craig Smith and Fiona

McLean 8. Ka th.ie Gowans 16/8/19 23/8/19 20/8/19

(.r/a!emen! drajied ~)' SCI] a11d pro1•ided to DOCJ)

9. sen proYided with the names of 4 31/7/19 additional witnesses, and topics they could each speak to (some of which oyerJapped)

10. Mike W'heaton 2/8/19 19/8/19 19/8/19 11. Jamie Duggan 8/8/19 15/8/19 13 /8/19

(.rtatemenl drqfierl ~;· SCJJ ,md pro1·ided to DOCJ)

12. Lacretia Campbell 8/8/19 15/8/19 13/8/19 (statemml drafter/ 0• SCII a11d pro1•ided lo

DOCJ) 13. Maureen \X'ilson 16/8/19 23/8/19 27/8/19 27/8/19 14. Dr Anne-Marie Martin 12/8/19 26/8/19 26/8/19 15. Jason Hainsworth 12/8/19 26/8/19 26/8/19 16. Kevin Corcoran PSM 13/8/19 27/8/19 28/8/19

(unsi_gned statement provided on 27 /8) 17. Carlo Scasserra 13/8/19 27 /8/19 27 /8/19 18. Custodial Services tender bundle served 27/8/19

on parties 19. Issues arising with evidence of "PG" - 31/8/19 3/9/19

data re Parklea Correctional Centre sought from DOCJ

20. Custodial Hearing commences 2-5/9 21. Statement of Jeremy Tucker 3/9/19

(110! requested - e1ide11ce of "PG')

SCII.007.057.0013

Special Com1nission of Inquiry into the Drug 'Ice'

22. Extracts of "PG"'s case management file 4/ 9/ 19 for tender by DOCJ

23. Ja son Hains\\-orth 26/8/19 ..J. /9/19 (s11pple111mfa,J' q11estio11s to be p11t i11 ez,ident'c -

110 statement req11es!ed) 2..J.. DOCJ proYided information regarding ..J./ 9/ 19

the distribution of sentenced inmates on the LSI-R risk index

25. Two articles re risk assessment referred to 5/9/19 br Dr I\lart.in in her e-~idence are se1Ted

by DOCJ and sought to be tendered 26. DOCJ prm-ide x2 wrsions of Policy for 5/9/19

Processing Court Requests for _-\OD assessments

27 . Further information prm-ided by DOCJ 16/9/ 19 (.-.: / 0 additio11al dommmls, mtides. a11d/ or

polities) 28 . Further information prm-ided by DOC] 6/9/19 20/9/19 20/9/ 19

re response to submissions to AODRRA 29. Further supplementary statement of '.?...J. / 9/ 19

Jeremy Tucker (S_,JPO..-. PNSP.r)

SCII.007.057.0014

that's a reference to your role; is that correct?

DR MARTIN: No, Con-ections Strategy & Policy.

5 MS DOWLING: So it says:

(I) Noted; (2) ACCS&P, please coordinate a reply. Note, there will be no needle exchange program.

10 And then it's signed by the Commissioner.

DR MARTIN: Yes.

MS DOWLING: Did you check with the Commissioner what the policy was in 15 relation to needle and syringe programs before you made your statement?

DR MARTIN: No, I did not.

MS DOWLING: So going back to paragraph 6- I withdraw that. In your 20 statement, why didn't you say that the Commissioner has directed that there will be

no needle and syringe program?

MS MA THUR: I object. It is now bordering on unfair to ask an employee to comment on the position of the Commissioner. If this inquiry wishes to take an issue

25 with the position of the Commissioner and the reasons why, then the Commissioner should be called. But to ask Dr Martin to start giving any commentary in relation to the exchange between Justice Health.

And the Commissioner, in my submission, takes the matter nowhere at all. Mr 30 Tucker has put in evidence, and it's been in evidence for a month, a detailed outline

with respect to what the limited evidence is supporting a needle syringe program. And in those circumstances, in my submission, this is now becoming unfair questioning of this witness.

35 THE COMMISSIONER: Well, Ms Mathur, I think-I agree in part with what you say. I think the witness can certainly be asked what she knows about the Commissioner's policy on this, and I think anything regarding to her knowledge what the Commissioner's reasoning behind any policy that you may or may not have is. So I'm prepared to allow the questions on that basis.

40

45

MS MATHUR: And it's stated in paragraph 6 the extent of her knowledge with respect to her understandings to the main reasons.

MS DOWLING: May I be heard, please, Commissioner.

THE COMMISSIONER: Yes. Thank you.

.SPECIAL COMMISSION 5.9.19 P-3666 A.MARTINXN MS DOWLING

SCII.007.057.0015

MS DOWLING: This Special Commission of Inquiry in its issues paper in April this year identified the introduction of a needle and syringe program in custody as an issue that it wished to interrogate.

5 THE COMMISSIONER: Yes.

MS DOWLING: In coITespondence between the Commissioner for Corrective Services and this Commission, the issue was flagged again, and the solicitors acting for Corrective Services New South Wales offered forvvard witnesses that could

10 address the questions that this Commission sought to interrogate in this hearing and has proffered, on this topic, a very, very senior bureaucrat, an Assistant Commissioner, to come and represent her organisation to explain the policies, procedures and operating practices of Corrective Services New South Wales. It is, in my respectful submission, quite disingenuous to suggest that this witness is not the

15 right person to ask about the policies of Corrective Services New South Wales. If that were the case, then she should have said, "I'm not the right person to express this view".

20

25

30

THE COMMISSIONER: Yes.

MS DOWLING: But on the contrary, a sworn statement and sworn evidence has been given. Who else should the Commission interrogate?

THE COMMISSIONER: Yes.

MS DOWLING: And the suggestion that this Commission should summons the Commissioner of Corrective Services to ask these questions is unhelpful, in my respectful submission, in the context of sworn statements, signed statements, having been provided by that organisation in preparation for this hearing.

THE COMMISSIONER: Yes.

MS MA THUR: But the question hasn't been asked.

35 MS DOWLING: Well, why are you objecting?

40

45

MS MA THUR: "'Are you aware of a policy?" That question - I don't take an objection. "Is there a policy?" No. But to start the questioning and a line of questioning with a letter not authored by this witness - - -

MS DOWLING: But in the tender bundle - - -

THE COMMISSIONER: Well, it's a letter that's in evidence before the inquiry. I think - - -

.SPECIAL COMMISSION 5.9.19 P-3667 A.MARTINXN MS DOWLING

SCII.007.057.0016

I t

MS MA THUR: Certainly. But the handwritten annotations in the Justice Health letter are not this witness's, and the letter in reply to Justice Health is not this witness's - is not - she's not the author of that letter.

5 THE COMMISSIONER: Well, I- look, I think that -Ms Mathur, I think it's -I think the witness is clearly able to be asked - and she has, as Ms Dowling points out in paragraph 6 of her statement - has purported to give an answer relating to the issue of NSPs in prison, and I think that Ms Dowling is entitled to explore that and to ask her the extent to which she knows of any policy, and if so, what that policy might

IO be. So I will allow a line of questioning along those lines.

MS MA THUR: As the court pleases.

MS DOWLING: Dr Martin, why didn't you say in your statement that it is the 15 policy ofC01Tective Services New South Wales that there will be no needle syringe

program?

20

MS MATHUR: I object to the question. First, you need to establish if that is, in fact, the policy of Corrective Services.

MS DOWLING: Well, the witness can answer the question.

THE COMMISSIONER: Yes. I'll allow it.

25 DR MARTIN: I'm not aware of any operational policy around needle and syringe programs.

MS DOWLING: So you don't know what the- 1'11 withdraw that. So is it your understanding that the Commissioner does remain open to the possibility of a needle

30 and syringe program?

DR MARTIN: I can't comment on the Commissioner.

MS DOWLING: No. I'm asking for you - your understanding as assistant 35 commissioner and a person who has given a statement to this Commission about this

issue. What's your understanding of the policy of your organisation about needle and syringe programs?

DR MARTIN: So as I said, there's no formal policy, but my understanding of the 40 views of a needle and syringe program attitudes are in line with syringes are viewed

as a possible risk within a conectional centre, and, therefore, we are not supported -we 're not supportive of the needle syringe program.

MS DOWLING: See, Dr Martin, could I explain to you what this Commission is 45 trying to do through having you come here to give evidence. The Commission is

trying to understand what the position of your organisation is in relation to the introduction of needle and syringe programs in New South Wales. And you have ·

.SPECIAL COMMISSION 5.9.19 P-3668 A.MARTINXN MS DOWLING

SCII.007.057.0017

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' '

SCII.007.057.0018