3 The Commonwealth’s understanding of the usefulness of biomedical markers for age assessment purposes

An age of uncertainty

Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children

 

Chapter 3: The Commonwealth’s understanding of the usefulness of biomedical markers for age assessment purposes

1 Introduction

This chapter considers the Commonwealth’s approach to the use of biomedical markers to assess age since wrist x-rays became a prescribed procedure for the purpose of age determination following the enactment of the Crimes Amendment (Age Determination) Bill 2001 (Cth). It also considers what each relevant Commonwealth agency knew, or should have known, about the value of specific age assessment processes for the purpose of establishing whether an individual is under the age of 18 years.

This chapter takes a largely chronological approach. This is because it is necessary to establish what the Commonwealth knew about the effectiveness of these age assessment processes at particular times in order to draw conclusions about the conduct of investigations and prosecutions. Issues relevant to the use of focussed age assessment interviews and age enquiries in Indonesia are discussed in Chapter 5 and Chapter 6 respectively.

Accordingly, this chapter opens by identifying the age assessment processes that have been employed in Australia since 2001. It then considers:

• what the Commonwealth knew at various times about the extent to which analysis of wrist x-rays was informative for age assessment purposes
• what the Commonwealth knew at various times about the extent to which analysis of dental x-rays was informative for age assessment purposes
• issues related to the disclosure of material to the defence.

2 Age assessment processes that have been employed in Australia since 2001

Various age assessment processes have been used, or offered for use, during the investigation or prosecution of young Indonesians suspected of people smuggling offences whose age was in doubt.

The primary age assessment process that has been used since 2001 is expert analysis of a wrist x-ray. As noted above, in 2001 wrist x-rays were specified as a prescribed procedure for the purposes of s 3ZQA(2) of the Crimes Act 1914 (Cth).^[217] Documents provided to the Commission indicate that from late 2008, when boats carrying asylum seekers again began arriving in Australia, until July 2011, a wrist x-ray was taken in the majority of cases where the age of an individual suspected of people smuggling was in doubt. Thereafter, it appears that only one crew member has had a wrist x-ray taken.

Other age assessment processes that have been used, or offered for use, in Australia include dental x-rays, focused age assessment interviews, and the making of enquiries in the crew member’s country of origin; that is, Indonesia.

The first age assessment process, other than wrist x-ray analysis, to be used in the period under consideration was a focused age assessment interview. In October 2010, the Department of Immigration and Citizenship (DIAC) sought for the first time to assess the age of individual members of a group of 27 Indonesian young people whose age was in doubt, by means of focused age assessment interviews. For the reasons discussed in Chapter 5, DIAC did not conduct any further interviews of this kind until late 2011. In November 2010, the Australian Federal Police (AFP) also conducted focused age assessment interviews with 12 individuals. These interviews are also discussed in Chapter 5.

On 8 July 2011, the Australian Government announced an ‘improved age assessment process’ which included the following measures in addition to wrist x-rays:

• the offer of dental x-rays as a supplementary procedure to wrist x-rays
• the offer of focused age assessment interviews conducted under caution by AFP officers
• the AFP taking steps as early as possible to seek birth certificates and other relevant information from Indonesia where the age of an individual suspected of people smuggling offences was contested.^[218]

The ‘improved process’ was developed by a working group of Commonwealth agencies, chaired by the Attorney-General’s Department (AGD). The working group was formed to consider concerns raised in a letter dated 17 February 2011 from the President of the Australian Human Rights Commission to the then Attorney-General.^[219] The correspondence between the Commission President and the Attorney-General regarding the Commonwealth’s reliance on wrist x-rays is discussed further in section 3.6 below.

At the time of its announcement, the ‘improved process’ appeared to offer some positive change in processes whereby the ages of individuals suspected of people smuggling offences who said that they were children were assessed. However, the additional age assessment methods have not been widely used. Although dental x-rays were offered to some young Indonesians, none has been conducted.^[220] Following the announcement, the AFP assessed whether focused age assessment interview would provide any evidentiary or probative value, and based upon expert academic opinions, found that it was not possible to conduct these interviews due to the cultural, linguistic, geographical and religious diversity of suspects.^[221] No interviews of this kind have been conducted by the AFP since the July 2011 announcement, with questions about age instead being asked during AFP interviews conducted as part of the investigation process. Finally, there appear to have been significant impediments to obtaining documentary evidence of age from Indonesia.

In December 2011, a new process for assessing age was adopted which involves DIAC conducting an age assessment interview with any young person suspected of a people smuggling offence whose age was in doubt. DIAC now only refers those individuals to the AFP for investigation whom it concludes are over 18 years of age or who are suspected of being repeat offenders or of being involved in a serious incident. The young people whom DIAC does not refer to the AFP for investigation are returned to Indonesia.^[222]

3 The Commonwealth’s understanding of the usefulness of wrist x-ray analysis for age assessment purposes

This section provides a chronological appraisal of the Commonwealth’s developing understanding since 2001 of the usefulness of wrist x-ray analysis as a means of age assessment.

As noted in Chapter 1, the Crimes Act was amended in 2001 to allow an investigating official, who suspects on reasonable grounds that a person may have committed a Commonwealth offence, to seek authority to carry out a ‘prescribed procedure’ where it is necessary to determine whether or not the person is, or was at the time of the alleged commission of the offence, under 18 years of age.^[223] The Crimes Act authorises the investigating official to arrange for the carrying out of a prescribed procedure in respect of the person only if that official obtains the required consents or if a magistrate orders the carrying out of the procedure.^[224] Currently, the only procedure prescribed for the purposes of this part of the Crimes Act is a ‘radiograph ... of a hand and wrist of the person whose age is to be determined’ (wrist x-ray).^[225]

The amendments referred to above were enacted in response to a decision of the Northern Territory Supreme Court which found that the Migration Act 1958 (Cth) did not provide statutory authority for the taking of a wrist x-ray for the purposes of age assessment.^[226]

So far as the Commission is aware, the resulting provisions have only been relied on in the context of prosecutions for people smuggling offences. Since 2001, expert analysis of wrist x-rays obtained in reliance on these provisions has been the primary, and on occasions the only, evidence of age adduced in such prosecutions.

Concerns about the extent to which it is appropriate to rely on wrist x-ray analysis for age assessment purposes are not new. They were raised during the parliamentary processes surrounding the Crimes Amendment (Age Determination) Bill 2001 (Cth), including by the Senate Legal and Constitutional Legislation Committee during its inquiry into the Bill. They were also considered in a series of court and tribunal cases between 2000 and 2003. However, the concerns did not resurface thereafter until 2010. This appears to be because between 2002 and late 2008 very few boats arrived in Australian waters carrying asylum seekers.

Boats started arriving again in late 2008, with a large increase in numbers towards the end of 2009 and in early 2010. Documents provided to the Commission indicate that during this period the first wrist x-ray of an individual suspected of a people smuggling offence was taken in September 2008. Wrist x-rays appear to have been routinely taken between September 2009 and July 2011 in cases where age was in doubt. During 2010 and 2011, as the number of investigations and prosecutions of individuals suspected of people smuggling whose age was in doubt rose, the question of the appropriateness of the use of wrist x-rays for age assessment purposes became increasingly important.

3.1 Concerns raised during the 2001 Senate inquiry

The Crimes Amendment (Age Determination) Bill 2001 (Cth) was introduced into the House of Representatives on 7 March 2001. The Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report. During this inquiry, the Senate Committee heard evidence that questioned the usefulness of wrist x-ray analysis for the purposes of age assessment.^[227]

The Senate Committee accepted this evidence, stating in its report that there is no real correlation between bone age and chronological age.^[228] The Senate Committee also noted that reservations about the accuracy of x-rays as a means of assessing age were not reflected in the Bill or its accompanying Explanatory Memorandum.

The Senate inquiry process also revealed some important aspects of the way in which wrist x-ray evidence was intended to be used. The Senate Committee report noted that:

the AFP advised that it was prepared to treat all persons who were not clearly adults as if they were juvenile:

In the absence of any other age identification documentation or other means of doing it, anyone who tested up to 19 would be treated as juvenile, because the x-rays would indicate that they were below that point a juvenile.^[229]

It appears, however, that no formal steps were taken to ensure that the AFP, in practice, treated all persons who were not clearly adults as if they were juvenile; that is, to give them the benefit of the doubt. A senior member of the AFP gave evidence to this current Inquiry in which he accepted that it is likely that no written direction or protocol was issued to Federal Agents to ensure that the AFP acted in this manner.^[230] The Commission accepts that the Crimes Act as amended did not contain a legal obligation to treat all persons who were not clearly adults as if they were juvenile.^[231] Nonetheless the Senate Committee noted the APF’s preparedness to act in this manner and it is apparent that the AFP has not done so in all cases. Some of these cases are discussed in Chapter 4.

Notwithstanding its reservations about the use of wrist x-rays for age assessment purposes, the Senate Committee formed the view that the Bill made provisions ‘that may assist in clarifying the age of some persons suspected of, or charged with, Commonwealth offences’.^[232] It recommended that the Bill be amended to include a statement that ‘all other appropriate age determination procedures will be undertaken before any prescribed procedure is undertaken’.^[233] It also recommended that the Explanatory Memorandum be changed to include a statement ‘that persons whose age cannot be precisely determined will be given the benefit of the doubt and treated as juveniles’.^[234] Additionally, the Senate Committee recommended that ‘information, including radiological studies, relevant to the age determination of young persons of various racial and cultural backgrounds ... be regularly sought and used in order to ensure that the prescribed procedures are of maximum use’.^[235]

The Bill was not amended to include a statement to the effect that a prescribed procedure would be used as a measure of last resort. The reason for rejecting this recommendation was provided during debate of the Bill in the House of Representatives:

The first part of recommendation 6 would require investigators to exhaust all other avenues before determining a person’s age under the bill. Of course, in practice all reasonable alternatives would be pursued before using the provisions under the bill.^[236]

Further, the Explanatory Memorandum was not changed as the Senate Committee recommended. However, some steps were taken to accommodate the Senate Committee’s concerns. Both the Revised Explanatory Memorandum and the Second Reading Speech of the Special Minister of State in support of the Bill state:

In those instances where the age of a suspect or defendant cannot be accurately determined the current legal position will prevail. Unless the prosecution can discharge the burden of establishing on the balance of probabilities that a defendant is an adult, the defendant will be treated as a juvenile. This ensures that no injustice will occur if a defendant’s age is still in doubt at the time of trial.^[237]

The Revised Explanatory Memorandum further states that:

The Bill does not contain an express requirement to exhaust all other avenues before seeking a person’s consent to, or magisterial authorisation for, a prescribed procedure. However, in practice, investigating officials will seek to determine a person’s age by all reasonable means before exercising the powers contained in the Bill.^[238]

The AFP also accepts that no direction or protocol was put in place to ensure that Federal Agents would seek to determine a person’s age by all reasonable means before exercising the powers in the Crimes Act. Further, the AFP accepts that in a number of cases, wrist x-rays were the principal means by which it sought to determine age.^[239] Some of these cases are discussed in Chapter 4. They support the conclusion that it was not unusual for the AFP to use wrist x-rays as both the first and the principal means of determining the age of an individual suspected of a people smuggling offence who said that he was a child.

The Senate Committee’s recommendation that information relevant to the age determination of young persons of various racial and cultural backgrounds be regularly sought and used has apparently not been implemented.

In its response to the draft of this report, the AFP submitted that:

the provisions of the Crimes Act enacted following the Senate Committee’s inquiry and the debate that considered that Committee’s findings did not create a legal obligation on the AFP to exhaust all other avenues of enquiry in order to determine a suspect’s age or to give a suspect the benefit of the doubt before seeking to rely on a prescribed age determination procedure.^[240]

The Commission accepts the accuracy of the above submission. However, it also notes the statement contained within the Explanatory Memorandum that in practice other enquiries would be undertaken before a wrist x-ray was conducted.

3.2 Concerns raised in cases decided between 2000 and 2003

Four cases decided in Australian courts between 2000 and 2003 can be seen to justify the concerns expressed by the Senate Committee and to foreshadow later debates about the extent to which wrist x-rays are informative of chronological age. One of these cases was decided before the Crimes Act was amended in 2001 and three were decided thereafter. Without underestimating the benefits of hindsight, it is legitimate to query whether the varying expert evidence given in these cases ought to have alerted the AFP and the Commonwealth Director of Public Prosecutions to the need to satisfy themselves that the expert evidence that they were placing before the courts was credible, and that it was apt to assist those courts to do justice according to law.^[241]

(a) The Queen v Astar Udin and Sania Aman

R v Udin is the first case of which the Commission is aware in which opinion evidence based on the Greulich and Pyle Atlas (GP Atlas) was given.^[242] In this case, Dr Sven Thonnell, a radiologist, was called as an expert by the Commonwealth Director of Public Prosecutions, indicating that he, and presumably the AFP, accepted Dr Thonnell as a credible expert witness. After explaining the content of the GP Atlas, Dr Thonnell expressed the opinion with respect to young males generally that the growth plate of the forearm has almost totally fused at age 18 years and by the age of 19 years has certainly totally fused.^[243]

Dr Thonnell went on to explain to the court why the table calculating the standard deviation for bone age in the GP Atlas only goes up to 17 years, stating:

after [17 years] it’s very difficult to judge the age, as I say, because the bones are expected to have fused at the age of 18 so I suppose you could put it another year. They could have done that if they really wanted to, but the difference at that stage – the standard deviation of two-thirds of these patients is about 13 months either way, above and below 17 years, so that above that they would have fused and it really doesn’t help at all in determining the chronological age or the skeletal age.^[244]

Dr Thonnell observed that:

It takes about 2 or 3 years for the bones to fuse after the age of 15 at least.^[245]

The Court accepted Dr Thonnell as an expert in the relevant field. The court noted the limitations of x-ray evidence for the purpose of ascertaining chronological age and ultimately found on the balance of probabilities that neither of the two defendants was over the age of 18 years at the time of his offence.^[246]

(b) The Police v Henry Mazela

Less than 17 months after Dr Thonnell gave evidence for the Commonwealth Director of Public Prosecutions in R v Udin, Dr V. Low , also a radiologist, was called by the Director to give expert evidence in the Children’s Court of Western Australia in The Police v Mazela.^[247] O’Brien J noted that Dr V. Low ’s evidence was the only evidence that could possibly throw doubt on Mr Mazela’s account of his age.

The evidence given by Dr V. Low in this case is at odds with Dr Thonnell’s earlier evidence in a critical respect. Dr V. Low ’s report on Mr Mazela’s wrist x-ray identified that the bones of his wrist had fused and went on to state:

According to the standard reference, Radiographic Atlas of Skeletal Development of the Hand and Wrist by Greulich and Pyle, second edition, this event occurs in the male at skeletal age 19 years. ... Mr Mazela had an estimated skeletal age of 19 years.^[248]

From her Honour’s reasons for judgment, it appears that in his oral evidence Dr V. Low clarified that, in his opinion, the probability of a 19 year old male showing a mature wrist on x-ray was 50%.^[249] He nonetheless described Mr Mazela as having the hand of a 19 year old.^[250] O’Brien J noted this inconsistency and also drew attention to the unscientific way in which Dr V. Low had calculated a standard deviation for skeletal age at the age of 18 years. Her Honour additionally referred to the statement made by the authors of the GP Atlas that the method devised by them was intended merely to provide a useful estimate of skeletal age and that there was a tendency to attribute to it a greater degree of precision than is permitted by the nature of the changes it is intended to measure.^[251]

Ultimately, O’Brien J accepted the unchallenged evidence of the defendant as to his age notwithstanding the evidence given by Dr V. Low .^[252]

Somewhat surprisingly, this decision was appealed to the Full Court of the Supreme Court of Western Australia. It would seem that the wrist x-ray analysis in this case was seen by the Office of the CDPP to be determinative of Mr Mazela’s age; that is, that the Office of the CDPP held an unwarranted belief that chronological age can be determined with some precision by analysis of a wrist x-ray.

The appeal was dismissed.^[253]

(c) The Queen v Herman Safrudin and Lukman Muhamad

In R v Safrudin and Muhamad, Riley J of the Supreme Court of the Northern Territory sentenced two individuals who had been convicted of people smuggling offences.^[254] There was no agreement between the prosecution and the defence as to their ages and evidence on this issue was led from Dr Thonnell.

The sentencing remarks of Riley J record that:

It is not in dispute that, at a skeletal age of 19 years, skeletal growth and fusion are complete.^[255]

It may thus be assumed that Dr Thonnell, consistently with his earlier evidence in R v Udin, had given unchallenged evidence to this effect; that is, evidence directly at odds with the evidence given only two months earlier by Dr V. Low in The Police v Mazela that skeletal maturity is achieved on average at 19 years of age and that 50% of 19 year olds do not have hands with the skeletal maturity of a 19 year old (that is, hands in which the bones are totally fused).^[256]

After noting that chronological age may vary from skeletal age and that the degree of variation may depend on many factors, His Honour concluded that Herman Safrudin was a juvenile but that Lukman Muhamad was an adult.^[257]

(d) Applicant VFAY v Minister for Immigration

The 2003 decision in Applicant VFAY v Minister for Immigration^[258] concerned the eligibility for a bridging visa of an applicant whose age was in dispute rather than an alleged people smuggling offence. It is therefore a case in which DIAC, but not the AFP or the Commonwealth Director of Public Prosecutions, may be assumed to have been involved. This case is of interest as two experts, described by the court as ‘very experienced and highly qualified paediatric radiologists’,^[259] gave evidence about the validity of using bone x-rays as a means of determining age.

The applicant’s wrist x-ray showed a skeletally mature wrist. Dr John Radcliffe, who gave evidence on behalf of the applicant, stressed the variation in the rate of skeletal maturity within normal populations and drew attention to the standard deviations recorded in Tables III and V of the GP Atlas. He pointed out that it is commonly regarded that everything within two standard deviations is normal. He further observed that the authors of the GP Atlas did not consider the estimation of chronological age as a potential use of their data and that in science it is generally understood that to use data for purposes for which it was not collected can be fraught with hazards. Additionally, Dr Radcliffe referred to published studies that showed that certain populations matured earlier than the study sample of Greulich and Pyle. His conclusion was that there are fundamental flaws in trying to assess chronological age from an assessment of skeletal age.

Dr Frederick Jensen gave evidence on behalf of the respondent. He was also at pains to explain that the GP Atlas is not ordinarily used as a means of assessing chronological age. He had never been asked to do so before. However, after having his attention drawn to a paper entitled ‘Effects of ethnicity on skeletal maturation: consequences for forensic estimations’ by Schmeling et al, he was open to the view that the GP Atlas could be used for this purpose. He expressed agreement with the conclusions set out in the Schmeling paper, which include conclusions tending to minimise problems arising from ethnic difference. A significant feature of this paper, to which Dr Jensen drew attention, is that it suggests that age assessments should involve not only a wrist x-ray but also a physical inspection by a forensic pathologist and a dental assessment by a forensically experienced dentist.

The Federal Magistrate concluded that the applicant was under the age of 18 years.

It is not clear that this decision of the Federal Magistrates Court of Australia came to the immediate attention of the Office of the CDPP, the AFP or, indeed, AGD. Nonetheless, decisions of the Federal Magistrates Court are published electronically and can be readily identified by a researcher.

3.3 Commonwealth agencies’ awareness of concerns in 2010

As explained above, the fact that prosecutions for people smuggling offences did not recommence until 2009 means that the appropriateness of the use of wrist x-ray analysis did not receive further consideration for some time. Documents provided to the Commission show that detailed discussion between Commonwealth agencies about these issues began in late 2010. It appears that this discussion was largely precipitated by DIAC’s presenting its concerns to other Commonwealth agencies.

(a) The Department of Immigration and Citizenship’s approach to age assessment

DIAC has not used wrist x-ray analysis for the purpose of assessing age in recent years. The reference to wrist x-rays as a means to assess age was removed from the DIAC Protection Visa Procedures Advice Manual in March 2010.^[260]

In early June 2010, DIAC began to consider options for assessing the age of asylum seekers where it held real doubt about the veracity of their claims to be under the age of 18 years. At this time, DIAC was giving the benefit of the doubt to any individual who claimed to be a minor unless there was evidence to contradict the claim. On 11 June 2010, a DIAC submission to the Minister for Immigration and Citizenship proposed a pilot program to assess whether approximately 50 ‘disputed minors’ were over or under 18 years of age.^[261] The submission recommended that DIAC assess age through focused age assessment interviews.

In the submission to the Minister, DIAC officers examined the use of wrist x-ray analysis for the purpose of determining chronological age in the context of refugee status determinations. The submission identified the controversy surrounding wrist x-ray analysis and recommended that DIAC use focused age assessment interviews as a means for assessing age. Specifically, the submission noted that:

• the GP Atlas does not take factors such as climate, ethnicity, health, nutrition and environment into account
• the results of wrist x-rays are not definitive and provide only a mean age estimation and an error range of at least two years either way
• the results of wrist x-rays are subjective and it is possible for two professionals to interpret the same data differently
• the GP Atlas was not designed for the purpose of age determination.^[262]

The submission also noted that there had been cases in which age determination on the basis of bone scans had been disputed in Australian courts. It identified that in at least two cases the court had given an individual the benefit of the doubt, finding on the balance of probabilities that he was under 18 years of age at the relevant time, notwithstanding expert evidence of a bone age of at least 18 years of age.

Finally, it observed that, while the policy and practice in relation to the use of bone scans varies across Europe, those jurisdictions that do use bone scans do not rely on them exclusively and take into account social and cultural factors in any assessment of age. It noted that the UK Government relies on The Health of Refugee Children – Guidelines for Paediatricians, published by the Royal College of Paediatrics and Child Health, to inform its policy on age determination for the purposes of refugee status determination.^[263] The Guidelines state:

In practice, age determination is extremely difficult to do with certainty, and no single approach to this can be relied on. Moreover, for young people aged 15–18 it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be as much as five years either side. ... The issue of whether chronological age can be determined from the estimate of bone age has been discussed at great length in the literature. The answer is that it cannot.^[264]

Among the annexures to the submission was a summary of international practice. This summary noted that:

• In Switzerland, the use of wrist x-ray for age determination purposes was stopped in 2000. The Swiss Asylum Appeal Commission determined that bone age may be up to three years different from chronological age.
• In the UK, the Royal College of Paediatricians advise that wrist x-ray age determination testing can be incorrect by up to five years.
• In Austria, the use of wrist x-rays has been discontinued as it has been deemed unreliable.^[265]

(b) Concerns raised by DIAC with other Commonwealth agencies

In late 2010, DIAC officers made concentrated efforts to ensure that information questioning the appropriateness of using wrist x-ray analysis for age assessment purposes was provided to the other Commonwealth agencies with a role in the investigation and prosecution of people smuggling offences. Below is a brief chronology of these efforts.

On 3 September 2010, senior officials from DIAC, the AFP and the Office of the CDPP attended a meeting to discuss approaches to age determination. As a result of this conference, the Senior Assistant Director, People Smuggling Branch, Office of the CDPP was provided with the following documents:

• a summary of the cases Applicant VFAY v Minister for Immigration [2003] FMCA 289 and V0504672 [2007] MRTA 385
• an extract relating to puberty and age determination from a publication Guidelines for Paediatricians (UK)
• a copy of the publication The Health of Refugee Children: Guidelines for Paediatricians published by the Royal College of Paediatrics and Child Health (UK).^[266]

The Commonwealth Director of Public Prosecutions gave evidence to this Inquiry that in about September 2010 he was not aware of the publication The Health of Refugee Children – Guidelines for Paediatricians.^[267] He agreed that he would have been seriously troubled had he been aware at that time that it contained the statement extracted above.^[268]

The Director accepted that a reason why he would have been seriously troubled was that he was aware that the Office of the CDPP had been adducing evidence from Dr V. Low that suggested to the contrary.^[269]

The AFP accepts that DIAC officers provided its officers with the same documents as the Office of the CDPP following the meeting on 3 September 2010.^[270]

As a result of the 3 September 2010 meeting, the AFP became concerned that there were discrepancies in the expert evidence with respect to the process of determining age by reference to skeletal age.^[271] On 5 October 2010, the AFP presented the results of its own research to DIAC. The AFP indicated that its likely preferred option for determining age would be a combination of the DIAC focused age interview and a wrist x-ray.^[272] It is clear from the documents provided to the Commission that by this time the AFP was in possession of a substantial amount of information concerning international approaches to using x-rays to determine age.

On 14 October 2010, DIAC officers replied to the AFP expressing their continued concern about the way wrist x-rays were being used to determine age. DIAC officers drew attention to the strong views expressed by authoritative bodies in other jurisdictions about the margin of error associated with the assessment of wrist x-rays. DIAC officers also observed that ‘it is not clear to us that the margin of error is reflected in the wrist x-ray report presented to the court (where the claimed age and wrist x-ray age differ)’.^[273] At that time, DIAC officers provided the AFP with a number of research reports about the reliability of wrist x-rays for assessing age, including the UK Guidelines on Assessing Age and a letter dated 23 May 2007 from the President of the Royal College of Radiologists to the UK Unaccompanied Asylum Seeking Children Reform Programme, that questioned how useful x-rays were to determine the age of unaccompanied asylum seeking children.^[274] This letter states:

we are concerned about both the reliability of x-ray examinations for the accurate assessment of age and the clinical grounds for justification of these x-ray exposures^[275]

On 26 October 2010, a meeting described as a ‘People Smuggling Brief Management Conference’ was held. Representatives of the Office of the CDPP, the AFP, DIAC and AGD attended the meeting, its focus being ‘the evidence which needed to be collected in people smuggling matters generally in order for them to be properly put before the court’.^[276] A file note of the meeting, under the heading ‘Juveniles’, noted increasing levels of difficulties in using x-ray machines to determine bone density age readings. It further referred to cases where courts had expressed lack of credibility in analysis of individuals.^[277]

DIAC officers also shared their concerns about the use of wrist x-rays to assess age directly with AGD officers. On 10 January 2011, a DIAC officer sent an email to an AGD officer attaching a number of academic and scientific journal articles relating to the use of wrist x-rays to determine age. One of those articles was The Health of Refugee Children – Guidelines for Paediatricians.^[278]

(c) Concerns held by medical service providers

Commonwealth agencies were aware at least by late 2010 of concerns held by some medical practitioners about the use of wrist x-ray analysis for the assessment of chronological age. This is revealed by the notes of the meeting held on 26 October 2010. By this time, the Commonwealth was also aware that some medical service providers, such as the Indian Ocean Territories Health Service which operated on Christmas Island, were refusing to take wrist x-rays for the purpose of determining age. In late November 2010, AGD, at the request of the AFP, made enquiries about why this was the case. In response to these enquiries, an officer from the Department of Regional Australia, Regional Development and Local Government, advised AGD that one of the three reasons the Indian Ocean Territories Health Service was refusing to carry out the procedure was, ‘from a clinical point of view, they have advised that age determination using wrist x-rays is highly unreliable and they would be reluctant to unnecessarily expose individuals to radiation’.^[279]

(d) Analysis by the Office of the CDPP

In late 2010, the Senior Assistant Director of the People Smuggling Branch, Office of the CDPP produced a research paper entitled ‘People Smuggling Prosecutions Age Determination Issues’.^[280]

On 8 November 2010, the Senior Assistant Director wrote to a DIAC officer requesting information about the methodology used by DIAC to assess age. In the subsequent email exchange, he stated that the position of the Office of the CDPP was to use all available information admissible in proof of the age determination issue and not to rely solely on wrist x-ray evidence. The Senior Assistant Director stated:

Further we are cognisant of the professional medical and scientific views backed by judicial and legal concepts that accept a multi discipline approach is likely to lead to a more accurate and safer result than any single method.^[281]

The Office of the CDPP’s research paper discusses the age determination process and how the results of the wrist x-ray procedure are used in the criminal justice system. The paper describes the course of events that ordinarily follows the taking of a wrist x-ray, including the preparation by a radiologist of a short report on the x-ray. The paper states:

Assuming the determination [by the radiologist] is that the suspected person is an adult, that is over the age of 18 years, and assuming that the AFP have sufficient evidence to initiate a prosecution, the AFP will proceed to charge the suspected person in an adult court, and if (as is normally the case) the suspected person is remanded in custody he will be remanded to an adult correctional services facility.^[282]

The paper makes no reference to the observation made by the Senate Legal and Constitutional Legislation Committee in 2001 that ‘the AFP advised that it was prepared to treat all persons who were not clearly adults as if they were juvenile’ and specifically that ‘anyone who tested up to 19 would be treated as a juvenile’.^[283] It seems likely that the paper’s author did not know of this observation.

The paper goes on to state that the expert witness usually gives evidence drawing on the GP Atlas to the effect that ‘a standard deviation in development of skeletal maturity is 13.05 months and 15.4 months’.^[284] The paper then sets out the table devised by Dr V. Low which purportedly shows the probabilities that a person showing skeletal maturity is in fact their stated chronological age. It does not appear that any medical or other experts apart from Dr V. Low were consulted in the preparation of this paper.

The research paper makes no reference to the fact that the Office of the CDPP had in the past called expert evidence that was inconsistent with the table of probabilities devised by Dr V. Low . However, a footnote recognises that although:

the most commonly used expert is Dr Vincent H S Low, there are other radiologists who have also given evidence in criminal proceedings including in Australia Dr Jensen, Dr Radcliffe, and Dr Thonnell.^[285]

It is clear from this footnote, and from a later express reference to the case, that the decision of the Federal Magistrates Court in Applicant VFAY v The Minister for Immigration had by this time come to the attention of the Office of the CDPP.

The research paper includes a discussion of the disclosure obligations of prosecuting authorities. It concludes that any DIAC focused age assessment interview report would need to be disclosed to the defence by the prosecution. The paper does not give consideration to the issue of whether material inconsistent with expert evidence forming part of the prosecution case also ought to be disclosed.

Under the heading ‘Borderline cases’, the Senior Assistant Director demonstrates his acceptance of Dr V. Low ’s opinion that on average the fusion of the bones of the wrist commences at about the age of 18 years and concludes at about the age of 19 years. On this basis, he identifies the practice of the Office of the CDPP treating everyone whose wrist has not fused as a juvenile as a useful approach.^[286]

(e) Questions raised in media commentary

Media commentary suggesting that Indonesian minors were detained in adult correctional facilities in Australia, and questioning the use of wrist x-ray analysis for the purpose of assessing age, commenced in late 2010. On 11 November 2010, an article was published by The Australian newspaper which discussed the case of four Indonesian crew members held in adult prisons in Western Australia who had said that they were minors. The article questioned whether wrist x-rays were a reliable method of determining age, stating:

The Australian Federal Police relies on wrist X-rays to determine the skeletal maturity of the captured Indonesians, many of whom lie about their age to escape prosecution. But there is serious doubt about the reliability of the test, with one pediatric radiologist, David Christie, describing it as “amazingly inaccurate”. Dr Christie said wrist X-rays had an error margin of up to 26 months in boys aged 17 years old. “It’s a test, but it’s a relatively poor test,” he said.^[287]

There has been sustained media interest in these issues throughout 2011 and into 2012.

(f) Intervention by the Attorney-General’s Department

AGD is the lead policy agency on people smuggling crew issues.^[288] From documents provided to the Inquiry, it appears that AGD began taking an active role in issues related to age assessment of people smuggling crew from late 2010. In mid-November 2010, an officer of the Department of Prime Minister and Cabinet forwarded to an AGD officer a draft Question Time Brief (QTB) on the issue of ‘Child People Smugglers’. The preparation of the QTB was apparently precipitated by the report in The Australian mentioned above and a further report in the Herald Sun newspaper about adult asylum seekers claiming to be children. The QTB stressed that the ‘Government takes very seriously the prosecution of people smugglers’.^[289]

An AGD officer expressed concern that the QTB ‘appears to conflate in places age determination processes used in the criminal justice context and for immigration purposes’. He expressed particular concern about the following lines in the section of the QTB headed ‘Background’, and suggested that they be removed from the QTB.

DIAC has moved away from the use of wrist x-rays as the sole method to determine a client’s likely age, because reliability of wrist x-rays to determine age has been questioned in an international context. The inherent margin of error with this process has caused much debate within the medical profession and more broadly in asylum seeker receiving countries.^[290]

The explanation for this suggestion offered at the time by the AGD officer was that:

As there are two age determination processes being used in separate contexts, and ongoing agency dialogue which (over time) will ensure each agency has access to relevant information about the other process result, it would be best to avoid references to individual agency views about the reliability of the test.^[291]

In giving evidence to this Inquiry, the officer acknowledged the accuracy of the statement that he suggested be removed from the QTB, but denied that his concern was to minimise potential criticism of reliance on wrist x-rays.^[292] He acknowledged that he was aware that DIAC and the AFP took into account the results of each other’s processes. This was, of course, not surprising as they were both concerned to ascertain the same thing; that is, whether a particular individual was under or over the age of 18 years. He said that he wanted to make it clear ‘that there were two processes and the immigration processes are better off being referred to the Minister for Immigration and the law enforcement process to the Minister for Home Affairs’.^[293] The suggestion, which continued to be made in documents prepared within AGD, that problems concerning the use of wrist x-rays for age assessments undertaken by DIAC did not affect their use by the AFP for age assessment purposes was disingenuous.

On 22 November 2010, AGD officers convened a meeting with DIAC officers to discuss the different approaches to age determination taken by the Commonwealth agencies and to ensure that public statements by one agency about the different processes ‘should not cast doubt on the reliability of the processes undertaken by the other agency’.^[294] DIAC explained the research that had been undertaken internationally into the reliability of wrist x-rays for assessing age in the refugee context. As noted above, DIAC agreed to provide to AGD copies of the scientific papers on age assessment that they had previously given to the Office of the CDPP.

Again an AGD officer sought to draw a distinction between age assessment by DIAC and age assessment for the purposes of the criminal justice system. According to a DIAC officer’s report of the meeting, the AGD officer expressed the view that the different approaches to age assessment taken by DIAC and the AFP were justified by the different purpose for which the assessment was made, observing:

DIAC’s processes are used to assess whether a person is a minor or an adult for the purposes of identifying appropriate placement in administrative detention (for which a less scientific, more flexible approach giving the benefit of the doubt is appropriate), while the AFP’s purpose is to decide whether to prosecute the person for a criminal offence, and if so, whether to incarcerate them in a children’s or adult’s criminal prison.^[295]

Were it the case that an AGD officer implied that the benefit of the doubt is of less importance in the criminal justice context than in the context of administrative detention this would be a cause for concern. However, as the above statement is drawn from a report by DIAC, not by AGD itself, it may be that it did not accurately record what was said by the AGD officer.

In early January 2011, a Ministers’ Office Brief (MOB) was prepared by AGD for the Office of the Attorney-General / Minister for Home Affairs titled People smuggling – children in gaols. The MOB referred to three separate articles that had been published in The Australian newspaper which questioned reliance on wrist x-rays as evidence of age. The MOB opens with the following points:

• The Australian Government takes the prosecution of people smuggling matters seriously.
• Law enforcement authorities investigate all persons suspected of being involved in people smuggling, including minors.
• Where there is doubt about whether a person arriving in Australia as an irregular maritime arrival is aged over or under 18 years of age, and the person is suspected of committing a Commonwealth offence, the Australian Federal Police conducts an age determination process in accordance with the Crimes Act 1914.
• This involves a wrist X-ray conducted by an independent medical expert who then interprets that X-ray to determine the age of the person.^[296]

The MOB inaccurately states that, to that date the Commonwealth had not proceeded with a people smuggling prosecution where the court has determined a defendant to be a minor.^[297] It further states that the age determination process used by the AFP ‘requires a wrist x-ray to be undertaken on all persons who claim to be a minor’.^[298] The AFP acknowledged at the Inquiry hearing for Commonwealth agencies that ‘requires’ is too strong a word in this context and that it was made very plain when the Crimes Act was amended in 2001 that a wrist x-ray would not be required, but would rather be an option of last resort.^[299]

The MOB further states that ‘Australian courts have accepted the accuracy of the X-ray test in age determination proceedings’ and ‘[a]ny issue about the accuracy of evidence is a matter for assessment by the courts’.^[300] The First Assistant Secretary, Criminal Justice Division of AGD gave evidence at the Inquiry hearing that the first of these statements was intended to convey ‘that courts have not uniformly found problems with the X-ray test’ and that ‘if we meant to convey that it had been uniformly accepted, we would say in every case’.^[301] It is clear that the statement contained in the MOB is likely to convey to a reader that Australian courts generally had found the wrist x-ray test to be accurate. It is concerning that an AGD officer would include in a MOB a statement with such potential to mislead.

The second of the above statements also had a tendency to mislead. It overlooks the reality of the way in which trials are conducted under our common law system. This issue is considered in more detail in section 5.1 below. It may be assumed that an officer in the Criminal Justice Division of AGD would be aware that a common law court is dependent on the parties, and particularly the prosecutor as the representative of the State, to assist it in determining the extent to which expert evidence is credible and informative. He or she may also be assumed to be aware that a common law court is entitled to assume that the State will not call evidence from a witness who is not credible.

3.4 Commonwealth agencies’ awareness of concerns in 2011

As the above discussion reveals, between late 2010 and early 2011, the Commonwealth became aware of an increasing amount of information that raised serious questions about the appropriateness of reliance on wrist x-ray analysis for the purposes of assessing whether an individual was under the age of 18 years. Nonetheless, until late 2011, the Commonwealth continued to rely on wrist x-ray evidence in the prosecution of Indonesian young people whose age was in dispute.

(a) Questions raised within the Office of the CDPP

Documents provided to the Inquiry indicate that serious questions about the reliance on wrist x-ray analysis as evidence of age were raised within the Office of the CDPP in early 2011. For example, a memorandum dated 13 April 2011 from the Senior Assistant Director of the Melbourne Office of the CDPP to the Senior Assistant Director of the Head Office of the CDPP, outlines concerns with the approach to age determination then being adopted and with the evidence being given by Dr V. Low about age.^[302]

The author of the memorandum noted that the Office of the CDPP was operating in ‘an environment where the information we have available to us is incomplete, and the science that is available to assist us, is imperfect’.^[303] In a footnote, she recorded that in ‘a recent Darwin case the wrist bones were fused, indicating that the accused was an adult, but in that matter, a genuine birth certificate was obtained, thereby proving the accused to be a juvenile’.^[304] She noted that, together with a colleague, she had real concerns over the different way in which conclusions are being expressed by the experts, and the periodic reference to 18.5 years. The memorandum queried whether there is anything that the experts can really say beyond:

• observing that the bones are either fused or not fused as at the time of the x-ray and, where they are fused, noting that the only relevant observation that might be made is that there is a 50% chance that the person is under 19 and a 50% chance that they are over 19
• advising of a probability that the person is under 18 – calculated as a mathematical exercise which commences with a standard figure of 22% and adding 2% per month for any delay between the date of the alleged offence and the date on which the x-ray was taken
• advising a probability, based on the GP Atlas, that the person is the age they claim to be.^[305]

The author of the memorandum concludes that these concerns might give rise to broader implications and questioned:

Does the AFP (together with the DPP) need to meet urgently with Dr V. Low to clarify with him that there is a 50/50 likelihood of someone with fused wrist bones being over/under 19. If this is the case, then the line that has been drawn with the AFP arresting persons who are over 19, and deporting those who are under 19 may well be illusory, as the likelihood of either is simply the same.^[306] (underlining in original)

(b) Further information requested from Dr V. Low by the Office of the CDPP

In early 2011, defence lawyers began to present the Commonwealth with expert reports that challenged the use of wrist x-ray analysis for the purpose of assessing age. In one matter, where a defence report was received in February 2011, the response of the Office of the CDPP was to request Dr V. Low to respond. Dr V. Low was, as has already been noted, the medical practitioner who ordinarily appeared as an expert witness for the CDPP in age determination hearings. He did so, and is reported to have advised that ‘although the wrist x-ray technology is not an exact science, he disagrees with the tenor of the defence report which rubbishes the technology’.^[307]

In May 2011, the Office of the CDPP sought to satisfy itself that it was appropriate to continue to use wrist x-ray analysis as evidence of age. By this time, Dr V. Low ’s opinion had been indirectly questioned by the memorandum prepared by the Senior Assistant Director of the Melbourne Office of the CDPP. Nonetheless, the Office of the CDPP asked Dr V. Low to prepare a report regarding the reliability of the practice. Not surprisingly, Dr V. Low confirmed the validity of the approach being adopted by him.^[308]

In light of the controversial nature of the evidence being given by Dr V. Low , his apparent lack of specialist expertise in statistics^[309] and the view expressed by some other similarly qualified medical practitioners that chronological age cannot reliably be assessed by reference to a wrist x-ray, it would have been appropriate for the Office of the CDPP to have sought independent verification of the validity of Dr V. Low ’s approach.

(c) Expert medical opinion presented to the Commonwealth by defence counsel

In mid-2011, further defence lawyers presented the Commonwealth with expert reports that challenged the use of wrist x-ray analysis for the purpose of assessing age. On 28 June 2011, a barrister made submissions to the Acting Deputy Director of the Brisbane Office of the CDPP to the effect that it was not likely that the court would find his client was over the age of 18 years at the time of the alleged offence and in the absence of aggravating factors the prosecution should be discontinued.^[310] The barrister noted that the defendant’s assertion that he was under 18 years of age at the time of the offence was supported by his statements to DIAC, a focused age interview assessment report completed by DIAC, an extract of his birth certificate and affidavits from his mother and uncle attesting to his age. The Commonwealth’s only evidence of age was the wrist x-ray report from Dr V. Low .

In his letter, the barrister submitted that Dr V. Low ’s conclusions on chronological age were unsustainable. He argued that the methods Dr V. Low used and the figures he relied on to draw statistical conclusions about age were imprecise and unclear. He also noted a number of internal inconsistencies in Dr V. Low ’s reports. For example, the barrister wrote:

Firstly the report states that in males, skeletal maturity of the hand is reached “at approximately 19 years of age”. Next, the report states that, “on average”, skeletal maturity is reached at 19 years of age. Dr V. Low then states that “it [therefore] is a reasonable interpretation that [the defendant] is 19 years of age or older” [my emphasis]. This first 20 April 2011 report does not reconcile the competing assertions that skeletal maturity is reached “at approximately 19 years of age” and “on average” at 19 years of age. Nor does Dr V. Low explain how either fact might mean that [the defendant] should be considered to be “19 years of age or older”.^[311]

The barrister attached to his letter two expert reports on age assessment; one prepared by Professor Sir Al Aynsley-Green and another by Professor Tim Cole. The substance of these expert reports is discussed in detail in Chapter 2.

On 30 June 2011, the Commonwealth Director of Public Prosecutions personally signed a minute approving a recommendation that the prosecution against three defendants be discontinued on the grounds that, on the balance of probabilities, they were juveniles.^[312] The prosecution was discontinued on 1 July 2011.

At about this time, the Office of the CDPP was also aware that some medical practitioners were unwilling to provide an expert opinion as to chronological age based on the GP Atlas. On 8 July 2011, a senior legal officer of the Perth Office of the CDPP wrote an email to a colleague noting that the doctor who had written the initial x-ray report in the matter was not available to give evidence at that individual’s age determination hearing. He was unavailable because of ‘patient commitments’ and had also:

expressed his reluctance to give evidence as he has reservations about the use of G&P to determine age (he says you can’t tell how old someone is from it).^[313]

This email, and specifically the observation of the medical practitioner that the GP Atlas could not be used to determine age, was apparently not brought to the attention of the Director prior to the Inquiry hearing for Commonwealth agencies in April 2012.^[314] Nor did a senior officer of the Office of the CDPP who had particular responsibility for people smuggling prosecutions have any recollection of that view being expressed by that particular medical practitioner at the time the email was written.^[315]

On 11 August 2011, another defence lawyer wrote to the Office of the CDPP arguing that the prosecution of his client should be discontinued. The defence lawyer submitted that Dr V. Low ’s analysis of the wrist x-ray should not be admitted as it was incapable of supporting a finding that the accused person was over 18 years of age at the time of the alleged offence.^[316] Attached to those submissions were:

• a report by radiologist Dr James Christie concluding that there is no scientific basis for using the GP Atlas as it had been used by Dr V. Low and that its use in that manner is unreliable
• a paper by Professor Cole, stating that Dr V. Low ’s use of the GP Atlas to estimate chronological age was inappropriate and his conclusions wrong
• several scientific journal articles discussing the use of wrist x-rays to determine age.

(d) Impact of the evidence presented to the Commonwealth by defence counsel

Shortly after this time, the submissions made by defence lawyers regarding the use of wrist x-ray analysis for age assessment purposes identified above were discussed by the Commonwealth agencies with an interest in these issues. On 12 August 2011, at a regular meeting of the four relevant Commonwealth agencies involved in people smuggling issues, the Office of the CDPP noted that:

Comprehensive submissions were being prepared by defence lawyers questioning wrist X-rays, and that it is necessary to revisit issues associated with the evidentiary strength of X-rays.^[317]

At the Inquiry hearing, the Senior Assistant Director of the Head Office of the CDPP reported that, in response to this information, prosecutors from the Office of the CDPP, and in one case an independent counsel, held conferences with Dr V. Low and were satisfied with the explanations that he gave them.^[318] Again, no independent advice about whether it was appropriate for the Office of the CDPP to continue to place reliance on Dr V. Low ’s evidence was sought. It appears that the Office of the CDPP maintained its confidence that Dr V. Low was an appropriate expert witness for the CDPP to call in legal proceedings.

Indeed, on 16 August 2011, the Office of the CDPP sent a letter to a defence counsel in which, in response to a question asked by her, it advised that the Office of the CDPP was ‘not aware of any matters in which Dr Vincent Low’s expert evidence had been discredited’.^[319] While this response may have been technically true, it was hardly frank; by this time the Office of the CDPP was acutely aware of challenges to the credibility of Dr V. Low ’s evidence.

On 18 August 2011, a memorandum from the Senior Assistant Director of the Head Office of the CDPP setting out some of the issues surrounding expert evidence concerning chronological age was sent to the Commonwealth Director of Public Prosecutions. The purpose of the memorandum was to recommend to the Director that the prosecution against a particular individual be discontinued on the basis that he was a juvenile. The memorandum drew to the Director’s attention the ‘considerable debate about the use of wrist x-rays for the purposes of determining age’ and referred to a report by Dr Christie.^[320] The memorandum sets out Dr V. Low ’s standard evidence and explained that Professor Cole had argued that Dr V. Low ’s statistical analysis was wrong. The memorandum stated:

I do note however that Dr V. Low ’s evidence has been tested and accepted in a significant number of contested cases. I assume that Dr V. Low is aware of the matters that have been raised in Dr Christie’s report, noting in particular that Dr Christie gave evidence in the matter of R v [PEN059] at which Dr V. Low ’s evidence was accepted. While we should be aware that the issues on which Dr V. Low is giving evidence are not without debate, I think that it is appropriate for this Office to continue relying upon Dr V. Low ’s evidence as an accepted expert in his field.

I am not aware of the weight to be given to the opinions expressed in the articles that have been provided to this Office. That is something that only an expert in the field would have the training and experience to determine. At present the expert that we have has determined that on the basis of his experience and learning the opinions he holds are correct.

I do think however the Commonwealth should take steps to seek advice from further experts in the relevant fields.^[321]

The Director approved the recommendation to discontinue the prosecution in the particular case. His handwritten note makes no reference to the expression of opinion that the Commonwealth should take steps to seek advice from further experts; nor is reference made in either the memorandum or the Director’s note to the prosecutor’s duty of disclosure.

At the meeting of Commonwealth agencies on people smuggling crew issues held on 2 September 2011, the Office of the CDPP reported that concerns relating to the efficacy of wrist x-rays had ‘been lessened’ after reviewing documents submitted by defence lawyers and after cross examination of Dr V. Low in age determination hearings. The Office of the CDPP further reported that it was in the process of locating an alternative expert – that is, other than Dr V. Low – on age determination. It advised that the benefit of the doubt was being applied consistently in age determination cases.^[322] The issue of whether the benefit of the doubt was in fact being applied in age determination cases is discussed in Chapter 4.

On 25 October 2011, the District Court of Western Australia delivered judgment in R v Daud, rejecting Dr V. Low ’s evidence where it was in conflict with the evidence of other experts.^[323] This judgment is considered in more detail below. In response to this decision, the Office of the CDPP started a search for experts, both medical statisticians and radiographers, who could comment on the reports being prepared by Dr V. Low .^[324]

Between 16 November 2011 and 6 December 2011, officers from the AFP and the Office of the CDPP discussed the interpretation of wrist x-ray analysis for the purpose of assessing age with a number of statisticians.^[325] On 12 December 2011, the Office of the CDPP advised the AFP to postpone making further enquiries with statisticians.^[326] An email from the AFP to the Office of the CDPP confirmed that enquiries would be suspended. It stated:

My understanding is that in relation to identifying and contacting statisticians, you advised that you needed to assess whether [Professor] was the correct person to approach and there were concerns over the disclosure issue of material provided by statisticians on Dr V. Low es (sic) reports. I agreed not to undertake any further enquiries with identified persons until we [have] heard back from your office. ... Appreciated if you could advise when DPP are happy for AFP to progress, then we will move forward with approaching statisticians and providing relevant material if they can assist.^[327]

The Office of the CDPP subsequently advised the AFP that further enquiries with experts should be postponed in light of both the Australian Human Rights Commission’s Inquiry and the increased role of DIAC in assessing age under the Government’s new policy in relation to people smuggling crew members whose ages are in doubt.^[328]

(e) Correspondence from medical professional associations to the Minister for Immigration and Citizenship

Approximately two months before the Office of the CDPP started to look for experts who could comment on the reports being prepared by Dr V. Low , representatives of a number of professional medical bodies wrote to the Minister for Immigration and Citizenship requesting urgent reconsideration of the use of wrist x-rays as a means of determining age. The joint letter, dated 19 August 2011, was signed by the Presidents of the Australasian Paediatric Endocrine Group; the Royal Australian and New Zealand College of Radiologists (RANZCR); the Australian and New Zealand Society for Paediatric Radiology; the Division of Paediatrics, Royal Australasian College of Physicians; and the Convenor of the Paediatric Imaging Reference Group, RANZCR.

The letter expressed disappointment that representatives of the signatories’ professional organisations were not invited to contribute to the ‘recent discussions you organised to determine the appropriate means of assessment of age of refugees attempting to gain entry to Australia and the people who are accused of providing the means of entry for the refugees’.^[329] While the signatories misunderstood the context in which the Attorney-General had established the working group to examine age assessment processes, the letter goes on to describe the use of x-rays as:

unreliable and untrustworthy when used as criminal evidence in a Court of Law and unethical when used by medical practitioners in situations when their use is for administrative purposes.^[330]

The letter also states:

We consider that x-rays of teeth and wrists to assess skeletal maturity should be used only when a therapeutic relationship has been established between the doctor and patient. We consider it is unethical to expose a young person to x-rays for purely administrative reasons. X-rays of teeth and wrists should not be used as evidence in a court of law because the age assessments obtained by these means are very inaccurate.^[331]

The letter drew to the Minister’s attention the fact that the GP Atlas method of age assessment was unreliable and not validated for the purpose of assessing the chronological age of an individual by reference to their skeletal age.

Although addressed to the Minister for Immigration and Citizenship, the letter was quickly drawn to the attention of others. It was received by AGD officers on 25 August 2011.^[332] Officers of the CDPP acknowledged that they received a copy of the letter around August 2011. It is not clear when the AFP first saw the letter.^[333]

The then Attorney-General replied to the letter from the medical experts on 18 October 2011. His response was drafted by officers in the Criminal Justice Division of AGD.^[334]

The then Attorney-General’s letter referred to his Department’s having recently led a working group comprised of the AFP, the Office of the CDPP and DIAC to examine what steps could be taken to ensure that courts have the best available evidence before them when assessing age. It advised that the working group had considered a number of age determination methods and recommended the approach outlined in the Guidelines for Age Estimation in Living Individuals in Criminal Proceedings developed by the Study Group of Forensic Age Estimation of the German Association for Forensic Medicine.^[335] The letter pointed out that the Guidelines recommend a wrist x-ray, dental x-ray and paediatric examination, but that the working group concluded that paediatric examinations would not be appropriate and that the AFP was examining the use of focused age interviews to supplement the x-ray procedures. The letter did not refer to the fact that the Guidelines were some years old, having been adopted in September 2000; nor did it refer to other critical features of the Guidelines which are discussed in Chapter 2. It is at least possible that the then Attorney-General was not himself advised of these features of the Guidelines, or of later publications which reached different conclusions to the Guidelines.^[336]

The letter went on to state:

Based on expert advice the Commonwealth has sought, the wrist X-ray procedure can only determine whether a person is 19 years or older as male wrist skeletal maturation occurs from that age. The CDPP only relies on the analysis of a wrist X-ray where the expert radiologist has concluded that the defendant is probably 19 years or older. The CDPP provides the defendant’s legal representatives with copies of the expert radiologist’s reports, which includes the information concerning the accuracy of the procedure.^[337]

The ‘expert advice’ referred to must be assumed to have been derived from Dr V. Low ’s reports. The continued reliance by the Commonwealth, as late as October 2011, on the content of these reports is difficult to understand – particularly having regard to judicial decisions such as The Queen v [TRA029] in which Dr Christie’s evidence was accepted and serious problems were identified with the approach adopted by Dr V. Low .^[338] Moreover, it is surprising that the then Attorney-General should have been provided with a letter for signature which placed reliance on the opinion of Dr V. Low when faced with an expression of divergent opinion shared by the President of Dr V. Low ’s own professional college and senior representatives of other professional associations of medical practitioners with relevant expertise.

The then Attorney-General’s letter of response dismissed the ethical concerns raised by the professional medical bodies by referring to his understanding, based on advice, that the risks associated with both wrist and dental x-rays are minimal. The letter closed by advising that the then Attorney-General would be happy to receive advice on ‘alternative methods of age determination that should be considered for use in the criminal justice context’.^[339]

(f) Expert evidence presented in legal proceedings

In the second half of 2011, expert evidence challenging the use of wrist x-ray analysis as evidence of chronological age began to be presented in legal proceedings.

As noted above, on 8 September 2011, following an age determination hearing, the judgment of the Magistrates Court of Western Australia in The Queen v [TRA029] was handed down. The court was not satisfied on the balance of probabilities that TRA029 was 18 years of age or older at the relevant date.^[340]

In this case, the Commonwealth had called Dr V. Low to give expert opinion evidence on the likelihood of TRA029 being over the age of 18 years. The defence had called Dr Christie who challenged Dr V. Low ’s statistical calculations. The magistrate preferred Dr Christie’s evidence to that of Dr V. Low . She noted that it was not possible to equate the legal burden of proof on the balance of probabilities with mathematical probabilities of the kind calculated by Dr V. Low and referred to a standard text on the law of evidence.^[341] This issue is further examined in Appendix 5. Additionally, the magistrate accepted the essence of Dr Christie’s evidence which questioned the appropriateness of using the GP Atlas to assess chronological age.^[342]

On 23 September 2011, a Senior Assistant Director at the Brisbane Office of the CDPP sent a minute to the Director. The minute discusses the result of the age determination hearing in R v [TRA029]. The minute states:

I am of the opinion that this decision now casts significant doubt on whether Dr V. Low ’s evidence will be accepted as reliable on this issue in the absence of any additional evidence to support the prosecution contention that the defendant is 18 or over. This becomes an even greater issue when the defendant adduces evidence such as a birth certificate, baptismal certificate or affidavit from a family member.^[343]

R v [TRA029] was promptly followed by two cases in the District Court of Western Australia, R v Daud and R v RMA. In each of these cases, Dr V. Low ’s evidence regarding wrist x-ray analysis was criticised and the judge preferred the evidence of defence expert witnesses who challenged Dr V. Low ’s opinion.

On 25 October 2011, Bowden DCJ handed down the decision of R v Daud.^[344] His Honour considered in some detail the utility of the GP Atlas for determining chronological age, as well as the evidence given by both Dr V. Low (and two other radiologists) on the one hand, and Professor Cole and Dr Christie on the other. His Honour ultimately rejected the evidence of age adduced by the prosecution, giving the following reasons:

The more experienced practitioner in the area of paediatric radiology is Dr Christie and where his evidence conflicts with Dr V. Low ’s, I prefer Dr Christie[’s] evidence based on his experience and expertise.

Professor Cole is a professor of medical statistics at University College with qualifications in statistics from Oxford and Cambridge Universities and on the editorial boards of journals such as the British Medical Journal and Statistics in Medicine and has authored many publications. He is clearly an expert paediatrician and statistician. I accept his criticism of Dr V. Low ’s analysis of the Atlas and where his evidence conflicts with that of Dr V. Low I prefer Professor Cole’s evidence based on his experience and expertise.^[345]

His Honour continued:

I am not prepared to accept the findings of Dr V. Low ’s reports relating to the statistical probabilities of the accused being of the chronological age he reports for two reasons.

Firstly, because I accept the evidence of Professor Cole and Dr Christie, that there is an absence of scientific data to validate the use of the standard deviation provided by the Atlas for an immature skeleton to assess the chronological age of a person possessing a mature skeleton.

Secondly because Drs Low, Lee and Chan’s basic assumption that skeletal maturity is achieved on average at age 19 is not supported by the Atlas. I accept Professor Cole and Dr Christie’s evidence that there is other research which shows that the skeletal maturity is achieved at the age of 18 or before.^[346]

His Honour also accepted:

• • • that whilst a male aged 19 will on average show skeletal maturity, that does not equate with saying the average age of obtaining skeletal maturity is 19
• the mean age of skeletal maturity for males based on information in TW3 [another atlas] is 17.6 years with a standard deviation of 16 months.^[347]

In R v RMA, the only evidence of chronological age before the court was a wrist x-ray and the expert evidence based on it.^[348] In a decision handed down on 11 November 2011, Eaton DCJ stated:

I accept Dr Christie’s criticism that, firstly, the method employed by Dr V. Low is flawed and, secondly, that any well-founded attempt to estimate chronological age would include a range of investigations not just reference to the atlas. In my view, the method employed by Dr V. Low and the assumptions upon which it is based render his opinion unreliable.^[349]

On 15 November 2011, a Senior Assistant Director in the Office of the CDPP distributed an internal email discussing the cases of R v RMA and R v Daud. The email set out a number of steps to be taken in age determination matters in light of ‘the developing position’ in age determination matters.^[350] The email stated:

Given our current level of information it is apparent that we should not be running any matters [where] the sole probative evidence showing that a defendant was over the age of 18 at the time of the offending is the analysis of the wrist x-ray. Even accepting Dr V. Low ’s evidence, which has not been followed in two District Court decision[s], there is a not insignificant probability that the defendant may be below the age of 18. We therefore should only be contesting these matters in circumstances where there is some other probative evidence to support the position that the defendant was an adult at the time of offending. ...

If we have any matters still before the Courts where the person has been found to be an adult or appears to have admitted that they were an adult at the time of the offending, solely on the basis of the analysis of the wrist x-ray, we need to identify and undertake a review of those cases. If it is apparent that the defendant is still contesting their age or there may be a doubt about their age we should consider raising the issue of bail with the defendant’s representatives and explore the age issue afresh.^[351]

The impact of the decisions in R v Daud and R v RMA can be seen in the Joint Commonwealth submission provided by AGD, the CDPP and the AFP to the Inquiry which states that:

the use of x-rays for age determination purposes is not conclusive and this is recognised by the AFP, CDPP [and] the court. ... Assessments by courts have informed the CDPP’s consideration of these matters and the CDPP will only contest people smuggling matters where age is in issue where there is probative evidence other than the analysis of the wrist x-ray evidence to support the position that the defendant was an adult at the time of the offending.^[352]

(g) Potentially misleading material prepared by the Commonwealth throughout 2011

On 30 June 2011, AGD coordinated the drafting of a single set of talking points on age determination to be used by all Commonwealth agencies. As initially drafted by an AGD officer, the talking points included the following two points:

• to date, the Commonwealth has not proceeded with a prosecution where an individual has been found to be a minor
• Australian courts have accepted the accuracy of the wrist X-ray in age determination proceedings.^[353]

DIAC requested that these points be deleted but indicated that it could accept the second point if amended as follows:

• Australian courts have accepted the results of the wrist x-ray in some age determination proceedings.^[354]

AGD accepted the amendments proposed by DIAC on the basis that the following talking point would be amended by deleting the words ‘to determine the likely age of clients’:

• DIAC will continue to use a range of methods to determine the most likely age of clients to assure the most appropriate placement and care arrangements for clients.^[355]

Documents before the Commission show that the first of the two points mentioned above remained in similar form and the second in its original form in Question Time Brief talking points as late as 22 November 2011; a time after the decisions in both R v Daud and R v RMA had been handed down.^[356]

As noted above, on 8 July 2011, the Government announced a new process for age determination in people smuggling matters.^[357] At about the same time, a document headed ‘Questions and Answers – Age Determination’ was prepared within the Criminal Justice Division of AGD – presumably to assist the Attorney-General to respond to questions about the new process.^[358] The opening points of the document are listed under the heading ‘What is the current process for age determination? What is the sequence of events for someone who is claiming to be a minor?’. They include:

• the current age determination process requires a wrist x-ray to be done on all individuals suspected of people smuggling who claim to be a minor
• this method of age determination was put in place in 2002 and has been successful before Australian courts.^[359]

The accuracy of the assertion that the Crimes Act requires a wrist x-ray to be done on all individuals suspected of people smuggling who claim to be a minor is discussed in Chapter 4. The accuracy of the suggestion that the method of age determination put in place in 2002 following the amendment of the Crimes Act had been successful before Australian courts is discussed in section 3.3(f) above.

Under the heading ‘What about people who have found [sic] to be adults under the old age determination procedures? Will their cases be reopened? Will the AFP retrospectively apply the new measures to Indonesians already charged where age was disputed? [What will be happening to people who are currently held in adult jails and claim to be children e.g. case in WA? Will these cases be re-examined under new process?]’, the document twice includes the following point:

• While it would not be appropriate for me to comment on individual cases, the Government remains confident that at all times the AFP and CDPP have put all available information before the court to assist in determining a person’s age in criminal justice proceedings. In each case, the court has made its own assessment of the person’s age.^[360]

Evidence given to this Inquiry by the First Assistant Secretary of the Criminal Justice Division of AGD made clear that AGD did not make enquiries as to the extent of disclosure of scientific materials by the Office of the CDPP or the AFP to defence counsel. It also revealed that AGD had not ever received more than some ‘general assurances that what was being put to the court ... covered both Dr V. Low ’s views but also the limitations of the approach that was being pursued’.^[361] The First Assistant Secretary, together with another AGD officer from the Criminal Justice Division, additionally gave evidence that the Attorney-General was at no time provided with even a précis of the scientific literature identified by AGD, DIAC, the AFP and the Office of the CDPP which concerned the use of x-rays for age assessment purposes.^[362]

It is concerning that as late as 22 November 2011, and following the decisions in both R v Daud and R v RMA, an updated QTB on people smuggling crew and age determination prepared within the Criminal Justice Division of AGD and provided to the Offices of the Attorney-General and the Minister for Home Affairs and Justice, repeated the assertions that ‘Australian courts have accepted the accuracy of the wrist X-ray in age determination proceedings’ and ‘[i]n each case, the court has made its own assessment of the person’s age’.^[363]

However, the Commission accepts, as the Acting Secretary of AGD advised by his letter of 6 July 2012, that Question Time Briefs and Ministers’ Office Briefs provide points which are ‘tailored to provide a concise summary of the issue for the purpose of the Government responding to questions during the Parliament of from the media, and were not intended to constitute comprehensive advice to ministers on these issues’. The Commission does not question the accuracy of the advice of the Acting Secretary that ‘these documents make up only a small part of the full advice provided by the Department to the Government on people smuggling [crew] issues’.^[364]

(h) Opinion of Australia’s Chief Scientist

On 11 January 2012, the Deputy Secretary of the National Security and Criminal Justice Group of AGD received a written brief of advice from Australia’s Chief Scientist on scientific methods used for determining chronological age in the absence of relevant documentary evidence.^[365] The brief noted that it is estimated that more than 60% of births in South East Asia remain unregistered. It advised that skeletal maturity is currently the most accurate indication of chronological age and that dental maturity is another common method to estimate chronological age. In the context of limitations concerning wrist x-rays, the brief advised:

Radiological based determination of skeletal maturity does not allow for a precise determination of chronological age. Outcomes of radiographic assessments of bones vary with ethnicity and socio-economic conditions (nutritional and disease status). There is observed variation in skeletal maturity of 2 years within each gender. Further, there are ethical concerns on exposing healthy children and adolescents to even a relatively low dose of ionising radiation for the purpose of age determination. (citations omitted)

In the context of limitations concerning dental age assessment, the brief advised:

Several studies based on different populations, including an Australian study, have reported that there are wide variations in chronological age corresponding to the different stages of dental development. The development of teeth depends on multiple factors that include the environment, nutrition, ethnicity and race.^[366] (citations omitted)

It is appropriate to note that although the Joint Commonwealth submission provided to the Commission on behalf of AGD, the AFP and the CDPP asserted that the submission had been prepared following consultation with a number of departments and agencies, including the Office of the Chief Scientist, it makes no reference to the above advice.

3.5 The Commonwealth’s failure to heed advice concerning ethical considerations

As discussed in Chapter 2, standards issued by both the International Atomic Energy Agency and by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) require that the use of radiation for any specific purpose is subject to the internationally accepted principles of justification and optimisation. It is clear from the documents provided to the Commission that the Commonwealth has been advised of these requirements but it does not appear that action has been taken to ensure that they are met.

Concerns about exposure to radiation for the purposes of age assessment were raised with the Commonwealth in the letter of 19 August 2011 from the Presidents or Convenors of a number of professional medical bodies discussed above in section 3.4(e).^[367]

However, the earliest document seen by the Commission in which the Commonwealth received explicit advice on the ethical considerations of exposing young people to radiation for age assessment purposes is a letter dated 7 September 2011 from the Parliamentary Secretary for Health and Ageing. This letter, which responded to a specific request concerning dental x-rays, advised the Minister for Home Affairs and Justice that:

Typically, the dose from a dental X-ray or an X-ray of the wrist is not likely to cause any adverse health effects. However, internationally accepted principles of radiation protection include the principles of justification and optimisation which require that any exposure must, overall, do more good than harm and be the least dose needed to achieve the necessary goal. These principles would need to be adequately addressed in the proposed regulations.^[368]

The only other recent engagement AGD appears to have had with ARPANSA concerned the content of the Joint Commonwealth submission of AGD, the AFP and the Office of the CDPP to this Inquiry.^[369] The Joint Commonwealth submission includes the following paragraph:

ARPANSA has also advised that the use of wrist and dental X-rays for age determination purposes satisfy internationally accepted principles of radiation protection. This includes the principles of justification and optimisation which require that any exposure must do more good than harm overall, and be the least dose of radiation needed to achieve the necessary goal.^[370]

The above paragraph is wrong to the extent that it suggests that ARPANSA’s advice was that the use of wrist and dental x-rays for age assessment purposes met internationally accepted principles of radiation protection. Following the publication of the Joint Commonwealth submission, ARPANSA provided a corrected version of the paragraph that documents their advice. As corrected the paragraph reads:

ARPANSA has also advised that the use of wrist and dental X-rays for age determination purposes must satisfy internationally accepted principles of radiation protection, in particular the principles of justification and optimisation. Current international best practice would require that any use of ionising radiation for the purpose of dental or wrist X-rays for age determination must be subject to a formal process of justification, to demonstrate that there is a net benefit from the exposure. Any such radiation exposure should be optimised to ensure the least dose of radiation needed to achieve the necessary goal is used.^[371]

To the Commission’s knowledge, no formal process of justification or optimisation has been undertaken with respect to the use of either wrist or dental x-rays for age assessment purposes.

3.6 The Commonwealth’s response to the concerns raised by the Australian Human Rights Commission

On 17 February 2011, the President of the Australian Human Rights Commission wrote to the then Attorney-General to draw to his attention issues of concern that had come to her attention regarding the processes being used for determining the ages of Indonesian nationals who may face charges of people smuggling. Her letter referred to medical evidence that the wrist x-ray procedure was significantly unreliable as a measure of age. It further drew attention to the 2001 recommendations of the Senate Legal and Constitutional Legislation Committee that wrist x-rays should, in effect, be a procedure of last resort and that the benefit of the doubt should be given to any person whose age cannot be accurately determined. Additionally, after referring to the possibility that DIAC was assessing age by a method other than wrist x-rays, the President stated:

Should the Commonwealth be in possession of evidence, whether obtained by this or any other method, which is inconsistent with any wrist x-ray evidence obtained by it, it seems to me that it would be under an obligation to disclose this evidence to the individual concerned or his legal representative. I have reason to suspect that this may not be occurring.^[372]

The then Attorney-General replied to the President on 31 March 2011. He expressed satisfaction with the age determination procedures being used by the AFP and the conduct of the Commonwealth in age determination hearings. As noted above, it appears that the Attorney-General was not provided by his department at this time, or indeed at any time, with comprehensive advice about the available scientific literature concerning the use of wrist x-rays for age assessment purposes.^[373] It appears that the advice provided to him did not go beyond advising him that there were ‘differing views’ on the reliability of wrist x-rays for this purpose.^[374]

The Attorney-General’s letter, while expressing respect for the view of those such as the Royal College of Paediatric and Child Health who objected to wrist x-rays on ethical grounds, noted the importance to the integrity of the criminal justice system that the court be presented with the best available evidence of a person’s age. The then Attorney-General indicated that he had asked his Department to lead a working group with the AFP, the Office of the CDPP and DIAC to consider what steps could be taken to ensure that age determination procedures provide the best evidence for a court to determine the age of people smuggling crew who claim to be minors.^[375]

Additionally, by his letter of 31 March 2011, the then Attorney-General advised that records of DIAC interviews would be included in the prosecution disclosure process and that State and Territory corrective services, and other bodies responsible for detaining alleged people smugglers, would be provided with all relevant material relating to their age.

On 30 June 2011, the then Attorney-General wrote again to the President of the Commission to inform her ‘about changes to the age determination process for criminal justice purposes that will ensure the courts are provided the best evidence to determine the age of people smuggling crew who claim to be minors’.^[376] The letter advised that the key initiatives recommended by the working group earlier established by him were: offering dental x-rays to supplement wrist x-rays; reforms to AFP’s consent forms for wrist x-rays; offering focused age interviews by the AFP; and a commitment to more expeditiously obtain relevant documentary evidence from Indonesia. The then Attorney-General further proposed that ‘the benefit of the doubt principle be applied more proactively where a person is claiming to be a minor’.^[377]

Somewhat surprisingly, in this letter the then Attorney-General asserted that ‘Parliament has accepted that wrist X-rays are currently the only suitable method of determining age for criminal justice purposes, and Australian courts have not criticised the wrist X-ray procedure in a criminal justice context’.^[378] This statement is inconsistent with the Report of the Senate Committee on, and the Explanatory Memorandum for, the Crimes Amendment (Age Determination) Bill 2001 (Cth)^[379] and it also overlooks the decision, upheld on appeal, of the Children’s Court of Western Australia in The Police v Mazela.^[380] Further, it appears carefully crafted to avoid reference to the civil case of Applicant VFAY v Minister for Immigration^[381] which directly considered the reliability of evidence of age based on a wrist x-ray and found that it was not conclusive.

On 8 July 2011, the then Attorney-General and the then Minister for Home Affairs and Justice issued a media release which announced ‘a stronger process to help determine the age of individuals detained in Australia suspected of people smuggling’. The elements of the ‘improved process’ were said to be that the AFP would:

• offer dental x-rays to alleged people smuggling crew claiming to be minors, in addition to the existing process, commencing as soon as possible
• take steps as early as possible to seek information from the individual’s country of origin, including birth certificates, where age is contested
• use additional interview techniques to help determine age.^[382]

On 14 July 2011, the President responded to the then Attorney-General’s letter of 8 July 2011 expressing her continuing concern with aspects of the age determination process. She urged consideration of the involvement of an independent body to eliminate the potential for prejudicial bias and to demonstrate that the best interest of the child had been a primary consideration. She additionally expressed concern at the reliance on radiographic procedures, drawing attention to the significant body of scientific and medical opinion that questioned their reliability and their ethical basis. Finally, she urged the immediate consideration, by an independent person or body, of whether a proper and reliable assessment of age had been conducted for any Indonesian national claiming to be a minor who had been charged but not yet tried, or who had been convicted as an adult. She sought a response by 5 August 2011.^[383]

On 22 August 2011, the then Attorney-General replied to the President’s letter dated 14 July 2011. The then Attorney-General wrote that he was not convinced of the need for independent review of all age determination matters involving Indonesian nationals, explaining:

I hold this view because the court considers all available evidence, is fully aware of the limitations of X-rays and the crew have independent legal representation. Further, by giving the benefit of the doubt in cases involving age, in particular from verified documentation relating to age, AFP and CDPP only proceed with cases with the highest probability that the person is an adult, and where information gathered consistently indicates that this is the case.^[384]

At the Inquiry hearing for Commonwealth agencies, the First Assistant Secretary of the Criminal Justice Division of AGD gave evidence that this letter was drafted within his area of the department.^[385] He agreed that the above extract from the letter was written on the basis of advice provided by the AFP and the Office of the CDPP, although he said that the advice was probably not provided specifically for the purpose of the response to the President’s letter. He indicated that the extract reflected his understanding having chaired the working group and having had regular interactions with the agencies concerned.^[386] It is plain that AGD did not seek to ensure that the then Attorney-General received advice that assessed, independently of the AFP and the Office of the CDPP, the extent to which individuals suspected of people smuggling offences whose age was in dispute had received fair hearings.

Notwithstanding the expression of view extracted above, the then Attorney-General in his letter of response asked the President to inform his department of any specific matters about which she held concerns.^[387] The First Assistant Secretary of the Criminal Justice Division of AGD accepted that this reflected the fact that he was not personally persuaded of the need for a comprehensive review of past cases but accepted that it might be appropriate to look at a particular case identified by the President.^[388] He indicated a general awareness at the time that reports challenging Dr V. Low ’s evidence were being put into evidence and that there were cases where that evidence was being preferred. The First Assistant Secretary concluded that this was evidence that the judicial process was working, as people were able to dispute wrist x-rays.^[389] He agreed that he did not make any enquiries of the Office of the CDPP or the AFP about the extent of disclosure of scientific materials in earlier cases.^[390] He also agreed that, as at the date of this letter, the then Attorney-General had not been provided with even a précis of the scientific material which questioned the usefulness of wrist x-rays for age determination purposes.^[391] Indeed, his evidence was that neither Attorney-General McClelland nor Attorney-General Roxon has ever been provided with such a précis.^[392]

The President responded to the invitation to identify specific cases of concern by advising the then Attorney-General, by letter dated 26 September 2011, that she would be forwarding details of 11 individuals to his department. Ten notifications were provided to AGD on 28 September and two further notifications were provided on 11 October 2011 and 8 November 2011 respectively.

By a letter dated 8 November 2011, the President expressed concern about the delay in her receiving a response to the notifications. She drew attention to the then recent Western Australian decision in R v Daud which had been highly critical of reliance on wrist x-rays as evidence of age and which had revealed that a minor had been held in an adult facility since June 2010. She also drew attention to the discontinuance of prosecutions in Queensland following the production by defence counsel of documentary evidence of age as well as expert reports criticising the use of wrist x-rays for age determination purposes. The letter reiterated the President’s call for the immediate consideration, by an independent person or body, of whether a proper and reliable assessment of age had been conducted for every Indonesian national claiming to be a minor who had been convicted as an adult and for every Indonesian national claiming to be a minor who had been charged but not yet tried on people smuggling charges.^[393]

Having received no reply to her letter of 8 November 2011, the President spoke to the then Attorney-General by telephone on 17 November 2011, and on 21 November 2011 confirmed by letter her earlier provisional decision to conduct this Inquiry.

4 The Commonwealth’s understanding of the usefulness of dental x-ray analysis for age assessment purposes

The Commonwealth has considered the potential use of dental x-ray analysis for age assessment purposes for some time.

Documents provided to the Commission indicate that the AFP first sought information from an expert in the use of dental x-ray analysis in late 2010.^[394] Advice was provided by a forensic odontologist in early January 2011 which argued that ‘dental radiographs [have been used] to determine chronological age ... widely throughout the world for both living and deceased individuals’.^[395] The author of the advice suggested that there were three recently developed databases which could ‘cover an individual from Indonesia’ and that ‘a comparison for an individual from Indonesia would be within 0–12 months variation for most of these databases’.^[396] The AFP forwarded this advice to the Office of the CDPP and sought their advice on the use of dental x-rays to assess age.^[397]

The AFP subsequently wrote to AGD to recommend that dental x-rays be prescribed as an age assessment procedure for the purposes of the Crimes Act, attaching the expert advice that they had received.^[398]

There was a clear divergence of views amongst Commonwealth agencies about the appropriateness of relying on dental x-ray analysis for age assessment purposes. Minutes from an interagency meeting regarding the ‘[a]ge determination of people smuggling crew’ noted that ‘the CDPP’s research indicated that the use of dental X-rays may be more contentious [than wrist x-rays] as socioeconomic factors such as diet and malnutrition can impact on tooth development’.^[399] An AGD officer indicated that he would be reluctant to prescribe dental x-rays without further work to understand the arguments for and against.^[400]

The Office of the CDPP conducted further research regarding dental x-rays which it provided to the AFP and AGD on 30 May 2011.^[401] The research of the Office of the CDPP is summarised in a brief paper which quotes the advice provided by the forensic odontologist to the AFP. The paper suggests that the ‘[d]ental x-ray appears to be more susceptible to change by ethnic or racial group and environmental factors such as diet, malnutrition, and lifestyle may also impact upon development’.^[402] The paper also states that ‘one must accept that the range of variables in dental x-ray techniques appears to be the same as in the wrist x-ray techniques’.^[403] The paper concludes with the view that ‘dental x-ray procedures are an alternative or adjunct to wrist x-ray procedures’.^[404]

This research was circulated by an AGD officer within that department, with the accompanying email stating:

Given the apparent high degree of accuracy, benefit in providing the court with the additional information and targeted application to minimise excess exposure to x-rays, it would appear to be worth considering prescribing them in addition to wrist x-rays in regulation 6C of the Crimes Regulations 1990 rather than having it [as] a voluntary option.^[405]

However, while the Office of the CDPP had concluded that dental x-rays provide a useful age assessment tool, it had not concluded that they have a high degree of accuracy, or that they are more accurate than wrist x-rays.^[406]

Minutes from a meeting of Commonwealth agencies held on 10 June 2011 show that AGD intended to recommend to the then Minister for Home Affairs and Justice that he specify dental x-rays as a prescribed procedure for the purposes of the Crimes Act.^[407] At this time, the AFP sought to implement a voluntary procedure for dental x-rays for crew members.^[408]

As noted above, the July 2011 announcement of an ‘improved age assessment process’ included the announcement that dental x-rays would be offered in people smuggling matters where age was contested. Talking points for the then Minister for Home Affairs and Justice prepared to accompany the announcement assert the usefulness of dental x-rays for age assessment processes. The talking points propose that the Minister say that dental x-rays:

• provide a statistical probability of a person’s likely age, which includes a margin of error depending on the circumstances of the individual case
• provide information to estimate if a person is up to 20 years old. ^[409]

The talking points suggest that if the Minister is pressed he should say: ‘I am advised that the margin of error is up to 12 months’.^[410]

The July 2011 announcement indicated that dental x-rays would be offered ‘commencing as soon as possible’. It appears that the necessary arrangements to allow dental x-rays to be taken had not then been put in place. On 15 July 2011, the Office of the CDPP wrote to the AFP to inform them that it had received a number of requests from defence counsel seeking dental x-rays for their clients and to express concern that the ‘AFP have had difficulty contacting the relevant expert to make arrangements for the implementation of the dental x-ray process’.^[411] The AFP replied on 22 July 2011, stating that they had been liaising with the ‘President of the Australian Society of Forensic Odontology, in an endeavour to identify suitable persons to assist with the interpretation of dental x-rays and provide professional opinion as to age’.^[412] The reply went on to state that ‘relevant experts have now been identified in Darwin and the AFP is continuing to expedite the implementation of dental x-rays’.^[413]

However, the AFP Assistant Commissioner, Crime Operations, sent an email to the Acting Deputy Director of the Legal and Practice Management and Policy Branch of the Office of the CDPP on 3 August 2011, which included the following:

We have once again encountered an ethical dilemma with respect to the administration of “non essential” x-ray. Dentists consulted by AFP to date have indicated an unwillingness to subject patients to the procedure as it is not required for a dental purpose.

We attempted an alternate source, namely Radiologists, however they require a referral from a dentist to carry out such a procedure and given that dentists do not consider the procedure is required for a dental purpose, they are unwilling to issue a referral.

We think we may have found a solution to this impasse through the odontologists who will assess the x-rays. We are pursuing this avenue further and hope to have a solution by weeks end.^[414]

On 12 August 2011, the AFP reported that the process for providing dental x-rays had been finalised and that the first offers had been made to individuals to have dental x-rays undertaken.^[415]

At this time, the Commonwealth continued to give consideration to proceeding with a proposal to amend the Crimes Regulations to specify dental x-rays as a prescribed procedure for age determination.^[416] Consideration was also being given at the same time to additionally specifying clavicle x-rays as a prescribed procedure.^[417]

5 Disclosure of all relevant material to the defence

5.1 The duty to disclose

At common law, prosecuting counsel have a duty to disclose material in their possession which would tend to assist the defence case.^[418] The duty has been held to exist even where the existence of the material is not known to prosecuting counsel.^[419]

This duty is recognised by the Commonwealth Director of Public Prosecution’s ‘Statement on Prosecution Disclosure’ which confirms that the prosecution should, as soon as reasonably practicable after the defendant has entered a plea of not guilty, disclose to the defence all material that has been gathered in the course of the investigation and which:

either runs counter to the prosecution case (i.e. points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing a defence, including material which is in the possession of a third party (i.e. a person or body other than the investigating agency or the prosecution).^[420]

This would include material which raises, or possibly raises, a new issue, the existence of which is not apparent from the prosecution case; material which holds out a real prospect of providing a lead to evidence relevant to an issue in the case; and material which raises a new issue in a case.^[421] It is not consistent with the prosecutor’s obligation to disclose material relevant to an issue in the case ‘to simply say that the information was in the public domain and that the applicant should have made enquiries which would have revealed it’.^[422]

The nature of the prosecutor’s obligation to conduct a case with fairness to the accused person and to ensure that justice is done in a particular case was discussed by Deane J in Whitehorn v The Queen. His Honour observed:

Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.^[423]

The prosecutor’s obligation to disclose all relevant material also goes some way to ameliorating any inequality in resources between the defendant and the State. This is particularly important in relation to the validity of scientific evidence called by the prosecution.^[424] In R v Ward, the Court of Appeal stated:

We believe that the surest way of preventing the misuse of forensic evidence is by ensuring that there is a proper understanding of the nature and scope of the prosecution’s duty of disclosure ... in respect of scientific evidence. That duty exists irrespective of any request by the defence. It is also not limited to documentation on which the opinion of findings of an expert is based. It extends to anything which may arguably assist the defence. It is therefore wider in scope than the rule. Moreover, it is a positive duty, which in the context of scientific evidence obliges the prosecution to make full and proper inquiries from forensic scientists in order to ascertain whether there is discoverable material. Given the undoubted inequality between prosecution and defence in access to forensic scientists, we regard it as of paramount importance that the common law duty of disclosure, as we have explained it, should be appreciated by those who prosecute and defend in criminal cases.^[425]

The disclosure obligation is of particular importance in our system of justice because it is not the role of a common law court to conduct an investigation or examination of its own.^[426] The role of the judge under the common law system is to ensure a fair trial according to law; it is for the parties to decide the grounds on which they will contest the issue, the evidence which they will call and, subject to the laws of evidence, the questions that they will ask.^[427] For this reason, a common law court is dependent on the parties to assist it in determining the extent, if any, to which expert evidence is credible and informative.

The principles outlined above were not disputed by the Commonwealth Director of Public Prosecutions, any of his officers, or by any AGD officer or the AFP at the Inquiry hearing for Commonwealth agencies.^[428]

5.2 The Office of the CDPP failed to meet its disclosure obligations in cases where age was in doubt

As noted above, the Commonwealth has on a number of occasions asserted that the assessment of the accuracy of evidence, including medical evidence of age, is a matter for the courts. Further, the Commonwealth submits that it has assisted the courts to make determinations of age by placing all available information before the court.^[429]

In a paper prepared by a Senior Assistant Director of the People Smuggling Branch of the Office of the CDPP, the disclosure obligation in cases in which age is in doubt is described as extending to ‘as a minimum, anything which runs counter to the prosecution case; or anything which might assist the defence or lead to other avenues of investigation leading to something that assists the defence case’.^[430] The officer noted the importance of complying with disclosure obligations to ensure that an accused person receives a fair trial. In his paper, he cited advice about the disclosure obligation given by Senior Counsel. That advice stated:

The bottom line is that all participants in the investigative process share the obligation to ensure that an accused person receives a fair trial. If exculpatory material exists in whatever source, then it should be revealed to the prosecution by those who have custody of it for assessment as to whether it can be disclosed, whether public interest immunity prevents its disclosure, and if so whether the proceedings should continue.^[431]

From the documents before the Commission, it is apparent that prosecuting counsel in cases where the age of an individual suspected of people smuggling was in dispute did not make full disclosure of scientific material which could arguably assist the defence.

The observations made by O’Brien J in the early case of The Police v Mazela drew attention to the drawbacks of using wrist x-ray analysis for age assessment purposes.^[432] As discussed in section 3.2 above, the cases of The Police v Mazela and R v Safrudin were heard only two months apart. In these two cases the Commonwealth Director of Public Prosecutions led expert evidence first from Dr V. Low (in The Police v Mazela) and then from Dr Thonnell (in R v Safrudin). It is not clear whether any person within the Office of the CDPP noticed the conflict between the respective expert opinions of Dr Thonnell and Dr V. Low regarding the age at which the hand and wrist bones of a male person are expected to have achieved maturity, or if they did, that they understood its significance. Dr Thonnell identified that age as about 18 years, while Dr V. Low expressed the opinion that only 50% of young males would show a mature wrist on x-ray at the age of 19 years. They could not both be correct. As the only issue to which their expert opinions were relevant was whether particular individuals were under, or alternatively over, the age of 18 years, the difference between them was of critical importance. Acceptance of Dr V. Low ’s opinion, as opposed to Dr Thonnell’s opinion, would significantly expand the number of young people likely to be found to have been an adult as at the date of the offence of which they were suspected.

At the Inquiry hearing for Commonwealth agencies, the Commonwealth Director of Public Prosecutions submitted that the difference in expert opinion between Dr V. Low and Dr Thonnell was not fundamental and was simply a difference in a matter of detail. The Director said:

I would be assured that [disclosure] was approached on the basis that what we had here was no more or no less than a difference between two experts called by the Crown in two different cases and a difference that was not fundamental to, certainly, Dr V. Low ’s standard. And you will remember, of course, that both witnesses did agree upon the applicability of Greulich and Pyle Atlas in these cases. I would have to say I would make the same call in 2000, and I emphasise in 2000, knowing what one knew then; I would have seen it as no more and no less than simply a difference in a matter of detail.^[433]

Thereafter, as the above discussion reveals, increasing amounts of material became available to the Office of the CDPP which was capable of alerting the Director and his officers to potential problems with the opinion evidence being adduced from Dr V. Low . Some of that material was generated within the Office of the CDPP.^[434] Other material was provided to the Office of the CDPP either by DIAC,^[435] or by defence counsel.^[436] It appears that none of this material caused the Commonwealth Director of Public Prosecutions or his officers to lose faith in Dr V. Low or his expertise. More importantly for present purposes, it appears not to have stimulated the Office of the CDPP to give consideration to its disclosure obligations.

At the Inquiry hearing for Commonwealth agencies, the Commonwealth Director of Public Prosecutions was asked whether he at any time issued instructions to Commonwealth prosecutors about what they should do where scientific evidence was being relied on. The following exchanges, which are considered further in the section on findings below, are recorded in the transcript:

MR CRAIGIE: Certainly no general instruction but counter scientific evidence was required because of the state of our judgement as to where Dr V. Low ’s evidence stood at that time. We regard it as a matter for the courts to test.

MS BRANSON: They can’t test without the information, can they, Mr Craigie; that’s the point I’m trying to make. The courts can’t go out and research for themselves. They’re dependent on the parties to bring the research to them. And here the Commonwealth DPP had the research; the legal aid lawyers were defending them.

MR CRAIGIE: With respect, it’s an adversarial system where both sides have capacity to develop their own arguments and counter-arguments which is quite different to a situation where the credit of a witness has been undermined substantially, undermined to the extent that it raises a disclosure issue. I think that’s the point of departure between our two views.^[437]

And after the Director’s attention was drawn to the observations of the Court of Appeal in R v Ward which are extracted above:

MR CRAIGIE: The fact that that research existed and the fact that it was, in certain contexts, critical of wrist X-rays was not disclosed but, in our submission, [it] was somewhat beside the point as to whether at that stage Dr V. Low ’s evidence could properly be relied upon by us as we saw it then.

MS BRANSON: Why would that be, Mr Craigie?

MR CRAIGIE: Well, it goes back to the limited processes from which wrist X-rays should be represented at court, as was indicated back before the Parliamentary Committee in 2001. I certainly was generally aware that it was a process that was not generally accepted. In fact, in a number of contexts, in other countries for certain purposes, it’s certainly not accepted. But in the context of Australia where there was an Act of Parliament that provided it and where, in a prosecutorial environment – a court environment – where it was often part of the fairly scant evidence available as to age. We were at that stage comfortable to use it, at that stage.^[438]

The issue of proper disclosure by the Office of the CDPP of material concerning the use of wrist x-rays for age determination purposes was raised by a defence lawyer in January 2011. During a directions hearing in the District Court of Western Australia, the lawyer for the defendant referred to an article published in The Australian newspaper that questioned the reliability of wrist x-rays as a means for determining age. The lawyer was concerned that she might wrongly be assuming that wrist x-rays allowed an authoritative determination of age. Specifically, she was concerned that the Commonwealth might be in possession of material that would throw some doubt on wrist x-rays as a reliable method of assessing age. She submitted to the court:

Well it’s, from our perspective, or from my perspective, it’s a disclosure issue. If the Crown are in possession of information which suggests that there is some controversy about the reliability of this kind of evidence then that ought to be disclosed to us so that we can make a decision about whether or not to take the point about jurisdiction.^[439]

It appears that the prosecutor in this case referred the defence lawyer to Dr V. Low and, after she spoke with him, the issue of her client’s age was no longer disputed and the prosecution of the individual continued.^[440]

At the Inquiry hearing for Commonwealth agencies, a senior CDPP officer confirmed that in February 2011 issues surrounding age determination were discussed by a large number of very experienced prosecutors and that disclosure requirements were not considered at that time.^[441] This is surprising, given the request made in the District Court only a month earlier that documents tending to question the reliability of wrist x-ray evidence be disclosed.

In June 2011, the Brisbane Office of the CDPP received an expert report from Professor Cole. This report was further scientific evidence in the possession of the Office of the CDPP that suggested that the evidence being given by Dr V. Low about the usefulness of wrist x-rays as a means of determining age was unreliable, and perhaps wrong. At the Inquiry hearing, it was agreed that no general direction was issued by or on behalf of the Commonwealth Director of Public Prosecutions that this paper be disclosed to the defence in all cases in which age was in dispute and, indeed, this report was not disclosed by prosecuting counsel.^[442]

It is of concern that as late as 16 August 2011, an officer of the CDPP sent a letter to a defence counsel in which, in response to a question asked by her, he advised that the Office of the CDPP ‘is not aware of any matters in which Dr V. Low ’s expert evidence has been discredited’.^[443] As noted above, while this response may have been technically true, it was hardly frank. By this time the Office of the CDPP was acutely aware of serious challenges to Dr V. Low ’s evidence. The question asked by defence counsel does not seem to have triggered any consideration by officers of the CDPP of the duty of disclosure of prosecuting counsel.

There is no material before the Inquiry which suggests that the Office of the CDPP ever disclosed to defence counsel any material in its possession which raised questions about the reliability of the expert evidence being adduced from Dr V. Low on the issue of the ages of young individuals suspected of people smuggling offences.

Legal Aid NSW raised the issue of disclosure in its submission to the Inquiry. The submission suggests that in Legal Aid NSW’s experience, the Office of the CDPP has not always adopted a balanced approach to scientific evidence about age. The submission states:

Despite there being well documented and published evidence to the contrary, it is the experience of Legal Aid NSW that the CDPP will present the wrist x-ray evidence of assessment of age as a medical fact.

It is the experience of Legal Aid NSW that the CDPP rarely presents opposing evidence. Nor does ... it make concessions when presented by the defence with evidence of the unreliability of x-ray from radiologists, paediatric radiologists or medical statisticians.^[444]

6 Findings

6.1 Findings regarding the Commonwealth Director of Public Prosecution’s understanding of the usefulness of wrist x-ray analysis for age assessment purposes

(a) Confidence in the evidence of Dr V. Low should not have been maintained

Prosecuting counsel ought not to call an expert witness in whose evidence they cannot have confidence. Prosecuting counsel, and other officers in the service of the State, have a duty to act with fairness and always with the objective of establishing the truth and ensuring that the accused person’s trial is a fair one.^[445]

It is not clear when the Commonwealth Director of Public Prosecutions and his officers first became aware that serious questions had been identified about the reliability of the evidence being adduced from Dr V. Low . There is no doubt that the true picture is easier to see with the benefit of hindsight. However, the possibility that Dr V. Low ’s evidence might be flawed was capable of being seen as early as February 2002.^[446]

By mid-2011 there was significant material available to support the inference that Dr V. Low ’s evidence was at best problematic:

• In September 2010, DIAC had shared with the Office of the CDPP the views of authoritative international bodies concerning wrist x-ray evidence generally.^[447]
• By March 2011, evidence of age based on wrist x-rays had become sufficiently controversial for the then Attorney-General to ask his department to lead a working group with the AFP, the Office of the CDPP and DIAC to consider what steps could be taken to ensure that age determination procedures provide the best evidence for a court to determine the age of people smuggling crew who claim to be minors.^[448]
• In April 2011, a senior officer of the CDPP had noted the flaws of logic inherent in the evidence being given by Dr V. Low .^[449]
• By approximately the end of June 2011, the attention of the Commonwealth Director of Public Prosecutions and his officers had been drawn to reports by Professor Aynsley-Green and Professor Cole. These reports, prepared by leading experts in their respective fields, were trenchantly critical of the evidence being adduced from Dr V. Low . Professor Cole, an internationally recognised expert in bio-statistics and human growth, had characterised Dr V. Low ’s statistical approach as ‘wrong’.^[450]
• By approximately August 2011 the Office of the CDPP was in possession of the letter dated 19 August 2011 signed by the Presidents of a number of medical colleges, including the Royal Australian and New Zealand College of Radiologists, which stated that ‘[x]-rays of teeth and wrists should not be used as evidence in a court of law because the age assessments obtained by these means are very inaccurate’.^[451]

Even taking into account the benefit of hindsight, it is reasonable to conclude that, by no later than mid-2011, the Commonwealth Director of Public Prosecutions and his senior officers ought to have been aware that, unless independent confirmation could be obtained from an authoritative source that the evidence being adduced from Dr V. Low was soundly based, they could not maintain confidence in Dr V. Low as an expert witness. Reassurances offered by Dr V. Low did not amount to independent confirmation.^[452]

By late 2011, the Office of the CDPP was aware that other radiologists of apparently high repute did not believe that age could be reliably assessed from wrist x-rays.^[453] In view of the duty of the Commonwealth Director of Public Prosecutions to ensure fairness to the accused and to avoid the misuse of forensic evidence, the Office of the CDPP ought to have sought authoritative advice on this issue.

It would also have been appropriate for the Office of the CDPP to give more careful attention than it apparently did to the limits of the specialised knowledge of Dr V. Low .

Dr V. Low ’s evidence concerning the age of individuals suspected of people smuggling was adduced in reliance on the authority of s 79 of the Evidence Act 1995 (Cth). This section excepts expert opinion evidence from the general rule that a witness may not give evidence of his or her opinion. Section 79(1) provides:

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Dr V. Low is a specialist radiologist. His opinions as to the skeletal age of the individuals whose wrist x-rays he examined may be assumed to have been based wholly or substantially on his specialised knowledge of radiology based on his training, study and experience. However, it is strongly arguable that the same cannot be said of his opinion as to the chronological age of those individuals.

Dr V. Low ’s opinions as to the chronological age of the individuals whose wrist x-rays he examined were dependent on an assumption made by him as to the average age at which males achieve skeletal maturity. Counsel for the Commonwealth Director of Public Prosecutions did not call evidence from anyone other than Dr V. Low to establish the accuracy of his assumption. Yet, it does not appear that Dr V. Low has the specialised knowledge based on his training, study or experience necessary to qualify him to express an opinion on this issue. As noted above, his area of specialised knowledge is radiology. His training, study and experience in the area of statistics, and specifically biostatistics, are relatively limited.^[454] This, as can now be seen, undermined his capacity to calculate from available research studies the average age at which males attain skeletal maturity. Yet, the opinion of Dr V. Low which was being adduced in evidence by counsel for the Commonwealth Director of Public Prosecutions was an opinion that was substantially based on his understanding of that age. This indicates that Dr V. Low ’s opinion about the chronological age of the young individuals whose wrist x-rays he examined was almost certainly not an opinion wholly based on his specialised knowledge of radiology. It is arguable that it was not even an opinion substantially based on his specialised knowledge of radiology. The material before the Commission does not suggest that the Office of the CDPP, or indeed AGD, ever undertook an analysis of this kind.

For the Office of the CDPP to have maintained confidence in Dr V. Low as a witness beyond June 2011, and thereafter beyond August 2011, seems inexplicable. Any explanation must, it seems, be found, at least in part, in the strong desire of that Office, and of other Commonwealth agencies, for an age assessment technique which would allow them to call evidence to show with a high degree of certainty who, from among those suspected of people smuggling, were adults. The reality is that the natural genetic diversity within the human population means there is no known medical technique which can measure an individual’s chronological age with sufficient precision for it to be used to determine age in the context of a criminal proceeding.^[455] The explanation may also lie in part in the high level of scepticism which developed concerning the claims of young Indonesians to be minors, which is considered in Chapter 4.

(b) Disclosure of material tending to support the defence case

Most, if not all, of the material identified above as material which should have alerted the Office of the CDPP to the risk that Dr V. Low ’s evidence was not reliable was material which would also have tended to assist the defence case in any matter in which evidence was adduced from Dr V. Low by counsel for the Commonwealth Director of Public Prosecutions. Yet, the Office of the CDPP did not disclose any of that material to defence counsel. Indeed, as noted above, as late as mid-August 2011 an officer of the CDPP deflected a request by a defence counsel for information concerning the reliability of Dr V. Low ’s evidence by offering a technically accurate but potentially misleading response.^[456]

The Commonwealth Director of Public Prosecutions defended the failure of his office to make disclosure of material tending to support the defence case on three bases. He identified the first basis in the context of the different views of Dr V. Low and Dr Thonnell on the average age at which a male will achieve skeletal maturity. As noted above, the Director described this as a ‘difference in a matter of detail’.^[457] As Chapter 2 makes clear, this difference did not relate to a matter of detail. An accurate understanding of the average age at which males achieve skeletal maturity is fundamental to the use of a wrist x-ray as the basis for an opinion on whether a particular male is under or over the age of 18 years. Further, the identification of that age is not something about which appropriately qualified experts may legitimately hold widely different opinions. Rather, it is an age capable of being scientifically calculated with relative precision from research studies. Where the opinion of any expert is based on an erroneous assumption about that age, that opinion is open to serious challenge.

In short, differences of view between experts on the issue of the age at which, on average, males attain skeletal maturity is not a matter of detail. The opinion of any expert that a particular male is over the age of 18 years, where based on a wrist x-ray, is underpinned by that expert’s assumption of the age at which males, on average, attain skeletal maturity. Evidence tending to show that Dr V. Low ’s assumption in this respect was inaccurate was clearly material tending to support the defence case.

The second basis on which the Commonwealth Director of Public Prosecutions defended the failure of his office to make disclosure of material tending to support the defence case was that, under our adversarial system of justice, the reliability of Dr V. Low ’s evidence was a matter for the court to test.^[458] The proper role of a common law court is discussed in section 5.1 above. Under our system of justice, a court may not conduct its own investigation. In fact, it is partly the limited role that a common law judge can appropriately play that makes the duty of disclosure of prosecuting counsel so important. As the Court of Appeal recognised in R v Ward, adherence to the prosecutor’s duty of disclosure is an important safeguard against the misuse of forensic evidence.^[459] Without proper disclosure being made to the defence, the capacity of the court to test the reliability of forensic evidence adduced by the State can be severely compromised. Further, as Roberts-Smith JA noted in Cooley v Western Australia, ‘[t]he defence [is] entitled to assume that a professional expert witness called by the State [is] a witness of integrity and credibility and that if there was any material showing otherwise, the State would disclose it’.^[460]

The third basis on which the Commonwealth Director of Public Prosecutions defended the failure of his office to make disclosure of material tending to support the defence case was that, although the process of assessing age by reference to wrist x-rays was not generally accepted, Parliament had provided for it. While the specification of wrist x-rays as a prescribed process for the determination of a person’s age might rule out arguments to the effect that the process ought not be used, it has limited, if any, relevance to prosecuting counsel’s duty of disclosure concerning forensic evidence called by the State based on a particular wrist x-ray. When counsel for the Commonwealth Director of Public Prosecutions adduced opinion evidence based on a particular wrist x-ray, it was critical to a fair trial that such evidence be open to proper testing. Appropriate disclosure by prosecuting counsel is an important means of ensuring proper testing.

Material of which the Office of the CDPP was aware that presented a countervailing point of view regarding the usefulness of wrist x-ray analysis for the purposes of assessing age should have been disclosed to defence counsel in matters where the prosecution intended to call Dr V. Low as an expert witness.

In his response to the draft report, the Commonwealth Director of Public Prosecutions continued to reject ‘any implication that the CDPP breached its duty of disclosure’. He stated that:

The CDPP considered that the appropriate course was for the differing views of experts in relation to wrist x-rays, which were known and used by defence lawyers and provided to the CDPP by them, to be considered and decided by the courts.^[461]

6.2 Findings regarding the AFP’s understanding of the usefulness of wrist x-ray analysis for age assessment purposes

Much of the above discussion concerning the Office of the CDPP applies also to the AFP. They were in possession of virtually the same material concerning wrist x-ray analysis as an age assessment technique and concerning the reliability of Dr V. Low ’s evidence as the Office of the CDPP. They also did not seek independent verification of the reliability of the evidence being given by Dr V. Low .

It seems that the AFP, and indeed the Office of the CDPP, fell into the very trap that had been identified by the authors of the GP Atlas; that is, to attribute to the GP Atlas ‘a greater degree of precision than was intended by those who devised it or, indeed, than is permitted by the nature of the changes which it is designed to measure’.^[462] Dr V. Low ’s reports which, as noted in Chapter 2, often calculated the probability of an individual being under the age of 18 years to two decimal points, no doubt fed the belief of the AFP and the Office of the CDPP that, by reference to the GP Atlas, age could be precisely assessed from a wrist x-ray.

It may be that the AFP fell into the further trap of failing to recognise the risk of a frequently used witness losing objectivity and coming to see his role as being to help the police.^[463]

Whatever the explanation may be, it is clear that the AFP and the Office of the CDPP not only came to use Dr V. Low as their expert of choice, they chose to accept his assessments of age when faced with conflicting expert opinions.^[464] In its response to the draft report, the AFP rejected this finding pointing out that the AFP uses radiologists at locations where detainees are conveyed by DIAC for the purpose of having the prescribed wrist x-ray procedure undertaken. The AFP acknowledged, however, that the ‘CDPP has continued to request AFP case officers to have secondary opinions of further analysis undertaken on wrist x-rays by Dr V. Low which the AFP facilitated’. ^[465] The Commonwealth Director of Public Prosecutions also accepted that the second more detailed report obtained for the purpose of providing evidence in an age determination hearing was usually obtained from Dr V. Low .^[466]

6.3 Findings regarding the Attorney-General’s Department’s understanding of the usefulness of wrist x-ray analysis for age assessment purposes

The AGD Annual Report explains what the department does in the following way:

The Attorney-General’s Department serves the people of Australia by upholding the rule of law and providing expert support to the Australian Government to maintain and improve Australia’s system of law and justice ....^[467]

The Attorney-General is the First Law Officer of the Commonwealth. Maintaining the integrity of Australia’s criminal justice system is an important aspect of the rule of law and thus an important responsibility of the Attorney-General. As the above statement makes clear, the Attorney-General requires the support of AGD to fulfil this responsibility.

The Attorney-General also has important responsibilities with respect to Australia’s human rights obligations. While human rights are not a specific responsibility of the Criminal Justice Division of AGD, the First Assistant Secretary of that Division acknowledged that, when his division provides advice to the Attorney-General on criminal justice issues, it is important that ‘holistic advice’ be provided to ensure that Australia’s human rights obligations are not overlooked.^[468] During much of the period of time with which this Inquiry is concerned human rights were a high priority for the then Attorney-General. He announced a national consultation on human rights in late 2008 and a human rights framework for Australia in April 2010.

Notwithstanding the responsibilities of the Attorney-General as First Law Officer of the Commonwealth and the function of AGD to support the Attorney-General in this role, the documents before this Inquiry suggest that the principal concerns of the AGD officers who provided advice to the Attorney-General were to ensure that the message was conveyed that the Australian Government takes people smuggling seriously, and to maintain support for wrist x-rays as the primary means of assessing the ages of individuals suspected of people smuggling who said that they were children. Ensuring that such individuals received a fair trial, and that any among them who might be children were identified and their human rights respected, appear to have been, at best, secondary considerations.

A considerable number of documents prepared by AGD included statements to the effect that the Australian Government takes the prosecution of people smuggling matters very seriously or otherwise demonstrated concern that the Government might be seen to be ‘soft’ on people smuggling.^[469] It seems likely that the perceived need to convey this message influenced AGD to adopt a degree of scepticism towards criticisms of the use of wrist x-rays for age assessment purposes in the context of people smuggling trials. It may also have limited the policy options which they drew to the attention of the then Attorney-General.

It is worrying that AGD officers included in briefing papers and talking points the potentially misleading and disingenuous statements identified earlier in this chapter.

The inclusion in the Joint Commonwealth submission to the Inquiry drafted by AGD of an inaccurate statement as to the content of advice received from ARPANSA is even more worrying. The Acting Secretary of AGD, in his letter of 6 July 2012 in response to the draft of this report, described the inaccurate statement as ‘related to a typographical error by the Department to the AHRC’ and one which ‘has been corrected formally’. In light of this response, it is appropriate to note that a comparison of the statement included in the Joint Commonwealth submission with the corrected statement suggests a substantial ‘typographical error’; an error which one might have expected to have been picked-up by an officer reviewing the final document. It is also appropriate to note that the formal correction of the statement followed a request from the Commission that it be provided with a copy of the advice received by AGD from ARPANSA.

It is also worrying that the Joint Commonwealth submission contained the assertion that it had been prepared in consultation with the Chief Scientist when the submission included no reference to his advice and aspects of it were inconsistent with his advice. An important extract from the brief provided by the Chief Scientist is set out in Chapter 2, section 2.2(d). The brief refers both to observed variations in skeletal maturity of two years in both genders and to ethical concerns on exposing children to even relatively low doses of ionising radiation. Even if Dr V. Low ’s opinion that on average males achieve skeletal maturity at 19 years of age were accepted, normal variations in skeletal maturity of two years are sufficient seriously to undermine the utility of skeletal maturity as a means of assessing whether a young male person is over the age of 18 years.

As noted above, at no time did AGD provide either Attorney-General McClelland or Attorney-General Roxon with even a précis of the scientific material critical of the use of wrist x-ray analysis for age assessment purposes. A proper understanding of the limitations inherent in the use of wrist x-rays to assess whether a young male is over the age of 18 years was necessary to allow the Attorney-General to make the policy judgments necessary to ensure the integrity of the criminal justice process as it impacted on individuals suspected of people smuggling offences who said that they were children.

It is concerning that the Attorney-General was not advised by AGD of the serious reservations expressed in contemporary scientific literature concerning the use of wrist x-ray analysis for age assessment purposes, and of the failure of prosecutors to disclose that material to defence counsel, following the request by the President of the Australian Human Rights Commission for an independent review of age assessment procedures that had been undertaken.^[470]

It seems likely that no AGD officer sought to gain an understanding of the contemporary scientific literature for the purpose of advising the then Attorney-General as to the appropriate response to the President’s letters, or even for the purpose of chairing the working party which ultimately recommended the ‘improved age assessment process’ discussed in section 2 above. It might be for this reason that the ‘improved age assessment process’ placed heavy reliance on a publication that was more than a decade old, and additionally did not incorporate important aspects of the process recommended by that publication. Whatever the explanation for the problems which beset the ‘improved age assessment process’, AGD was seriously handicapped in providing advice to the Attorney-General as to potential policy options by its failure to pay close attention to contemporary literature concerning methods of age assessment.

The evidence of the First Assistant Secretary of the Criminal Justice Division of AGD concerning the failure to provide the Attorney-General with even a précis of the scientific material was as follows:

What the department provided him was advice as to the fact that there are differing views on the reliability on wrist x-rays and we provided him a range of commentary about that aspect in particular. He also, of course, had the option of calling for additional information if he so chose, and that’s one of the options that was put to him in the submission.^[471]

This chapter reveals that, as at the date of the President’s request, the scientific material available to the Commonwealth did considerably more than suggest that there were differing views on the reliability of wrist x-rays as a technique to determine whether a young male was over the age of 18 years. Rather, the material was sufficient to found a reasonable belief that the technique was insufficiently informative to be used for this purpose. It also raised questions concerning the admissibility of the evidence being adduced from Dr V. Low .^[472]

It appears that neither the First Assistant Secretary nor any officer of the Criminal Justice Division ever read the text of the GP Atlas, although the volume was in the possession of both the Office of the CDPP and the AFP. The belief of the First Assistant Secretary is that AGD may have had regard to extracts from it or advice about the effect of it and how it should be interpreted.^[473] The GP Atlas is a critical element in the use of wrist x-rays for age assessment purposes. Its text is readily understood by a non-scientist. As noted elsewhere in this report, it draws attention to the striking variability in the rate of development of different individuals,^[474] and cautions against the tendency to attribute to assessments made by reference to the atlas ‘a greater degree of precision than is permitted by the nature of the changes it was designed to measure’.^[475] Little reflection is necessary for a reader to conclude that no more, and almost certainly less, precision would be permitted when the GP Atlas is used for the reverse purpose from that for which it was designed.

During the Inquiry hearing for Commonwealth agencies, an AGD officer, in response to a question from the President of the Commission concerning the department’s awareness of the content of certain scientific publications at the time that it drafted a letter for the Attorney-General to send to a number of medical colleges, responded:

I think it’s fair to say, Madam President, the Attorney-General’s Department doesn’t hold itself out as a scientific body evaluating quality of the studies. We seek advice from other agencies to help us with those sorts of judgments.^[476]

While it was plainly appropriate for AGD to seek information from the Office of the CDPP and the AFP, in the circumstances the provision of sound policy advice to the Attorney-General required independent assessment of whether that information was reliable. This did not call, at least in the first instance, for scientific advice. It called for the bringing of an independent mind to the issues and a ‘lawyerly’ analysis of relevant materials. The skills required include the capacities to identify relevant publications and then analyse them; to identify critical issues and points of difference concerning them; to ask appropriate questions and to test responses against known rules of law and logic. It would be deeply concerning if AGD does not have officers with these skills.

If scientific advice had then been judged to be necessary, AGD could have sought it from one of a number of sources. The Office of the Chief Scientist was one possible source of independent scientific advice but it appears that no approach was made to his office by AGD until after this Inquiry was called.

The above findings do not involve the suggestion that AGD should have become involved directly in AFP and CDPP operational matters.^[477] Nor do they involve a suggestion that the AGD should conduct, ‘as a matter of course, its own investigations into the credibility of expert witnesses and their methodology whenever contested in Commonwealth proceedings’.^[478] Each of the AFP and the CDPP is an independent agency. The Commission accepts that their independence ‘is underpinned by the fundamental principle that criminal investigations and prosecutions should be independent of any actual or perceived interference from policy departments’.^[479] However, as the lead policy agency on people smuggling crew issues, it was appropriate for AGD to play a more active role than simply relying on information provided to it by the AFP and the Office of the CDPP when significant issues of policy arose. Such issues clearly arose when AGD, for example, chaired the interdepartmental working group on age determination and led the development of the Government’s improved policy framework on age determination for criminal justice purposes.^[480]

6.4 Findings regarding DIAC’s understanding of the usefulness of wrist x-rays for the purposes of age assessment

As noted above, DIAC came relatively early to the realisation that wrist x-rays were an unreliable way of assessing whether a young person was over the age of 18 years. Having identified a significant amount of scientific literature which threw doubt on the wrist x-ray technique of age assessment, DIAC shared that literature with other Commonwealth agencies. Materials later identified confirm the appropriateness of the approach adopted by DIAC in this regard.

6.5 Findings regarding the Commonwealth’s understanding of the usefulness of other biomedical markers for age assessment purposes

The only biomedical marker other than skeletal development as shown by a wrist x-ray to which the Commonwealth seems to have given serious consideration is the assessment of tooth development as shown by a dental x-ray. Some limited consideration seems to have been given to the use of a clavicle x-ray for age assessment purposes.

The July 2011 announcement of an ‘improved age assessment process’ included the announcement that dental x-rays would be offered in people smuggling matters where age was contested. The Commonwealth was not in fact in a position to offer dental x-rays until August 2011. On 12 August 2011, the AFP reported that the process for providing dental x-rays had been finalised and that the first offers had been made to individuals to have dental x-rays undertaken.^[481] The Commission is not aware of any young Indonesian taking up the offer of a dental x-ray.

As discussed in section 4 above, some consideration was given by each of the Office of the CDPP, the AFP and AGD to the possibility of dental x-rays being specified by regulations as a prescribed procedure for determining age for the purposes of the Crimes Act. Differing views were expressed about their usefulness for age assessment purposes. So far as the Commission is aware, no formal steps have been taken towards making dental x-rays a prescribed procedure for the purposes of the Crimes Act.

The extent to which a dental x-ray is informative of whether an individual is over the age of 18 years is considered in Chapter 2. In summary, it appears that dental x-rays suffer from most, if not all, of the same difficulties as wrist x-rays when sought to be used as an age assessment technique. The Chief Scientist has advised that:

Several studies based on different populations, including an Australian study, have reported that there are wide variations in chronological age corresponding to the different stages of dental development. The development of teeth depend on multiple factors that include the environment, nutrition, ethnicity and race.^[482] (Citations omitted)

Moreover, before dental x-rays could be made a prescribed procedure for the purposes of the Crimes Act, it would be appropriate for the Commonwealth to ensure that the advice of ARPANSA concerning the use of human imaging for age determination is complied with.^[483]

It may additionally be noted that there is little evidence that the use of both a wrist x-ray and a dental x-ray improves the precision of any age assessment, although it naturally increases the dose of radiation to which the individual is subjected.^[484]

The material before the Commission suggests that further research is required in respect of all other biomedical markers, including clavicle x-rays, before it would be appropriate for the Commonwealth to place reliance on them for age determination purposes.^[485]

^Top

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^[217] Crimes Amendment Regulations 2001 (No 2) (Cth).
^[218] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011. See also Hon R McClelland MP, Attorney-General, and Hon B O’Connor MP, Minister for Home Affairs and Justice, ‘Improved process for age determination in people smuggling matters’ (Media release, 8 July 2011) (Improved process for age determination – Media release). At http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F906838%22 (viewed 9 July 2012).
^[219] See Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 17 February 2011.
^[220] As at 9 May 2012, 24 alleged crew members had been offered voluntary dental x-rays by the AFP. None of these 24 individuals accepted the offer: Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012.
^[221] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012; AFP, Response to draft report, 6 July 2012.
^[222] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012.
^[223] Crimes Amendment (Age Determination) Act 2001 (Cth).
^[224] Crimes Act 1914 (Cth), Division 4A, ss 3ZQA–3ZQK; Crimes Regulations 1990 (Cth), reg 6C.
^[225] Crimes Regulations 1990 (Cth), reg 6C(2).
^[226] R v Hatim, Kadir and Others [2000] NTSC 53.
^[227] Evidence to the Commonwealth Senate Legal and Constitutional Legislation Committee, ‘Inquiry into the Provisions of the Crimes Amendment (Age Determination) Bill 2001’, 23 March 2001, p 2.
^[228] Commonwealth Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report of the Inquiry into the Provisions of the Crimes Amendment (Age Determination) Bill 2001 (March 2001) (Report of Senate Committee 2001), para 3.62.
^[229] Report of Senate Committee 2001, above, para 3.18.
^[230] Assistant Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), pp 36–37.
^[231] AFP, Response to draft report, 6 July 2012, p 5.
^[232] Report of Senate Committee 2001, note 12, para 4.1.
^[233] Report of Senate Committee 2001, above, recommendation 6.
^[234] Report of Senate Committee 2001, above, recommendation 8.
^[235] Report of Senate Committee 2001, above, recommendation 10.
^[236] Commonwealth, Parliamentary Debates, House of Representatives, 2 April 2001, p 26186 (Hon Mr Williams MP, Attorney-General).
^[237] Commonwealth, Parliamentary Debates, Senate, 4 April 2001, p 23619 (Senator Abetz, Special Minister of State); Revised Explanatory Memorandum, Crimes Amendment (Age Determination) Bill 2001 (Cth) (Revised Explanatory Memorandum 2001).
^[238] Revised Explanatory Memorandum 2001, above, para 9.
^[239] Deputy Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 41.
^[240] AFP, Response to draft report, 6 July 2012, pp 3–5.
^[241] Whitehorn v The Queen (1983) 152 CLR 657, 663–664 (Deane J).
^[242] Transcript of Proceedings, The Queen and Astar Udin and Sania Aman (District Court of Western Australia, H.H. Jackson DCJ, 3 October 2000) (Transcript – The Queen v Udin and Aman); WW Greulich and SI Pyle, Radiographic Atlas of Skeletal Development of Hand and Wrist (2^nd ed, 1959) (GP Atlas). The use of the GP Atlas is discussed in Chapter 2.
^[243] Transcript – The Queen v Udin and Aman, above, p 19.
^[244] Transcript – The Queen v Udin and Aman, above, p 21.
^[245] Transcript – The Queen v Udin and Aman, above, p 29.
^[246] Transcript – The Queen v Udin and Aman, above, pp 51–53.
^[247] Transcript of Proceedings, The Police v Henry Mazela (Children’s Court of Western Australia, O’Brien J, 12 February 2002) (Transcript – The Police v Mazela).
^[248] Transcript – The Police v Mazela, above, p 5.
^[249] Transcript – The Police v Mazela, above, p 6.
^[250] Transcript – The Police v Mazela, above, p 6.
^[251] Transcript – The Police v Mazela, above, p 7.
^[252] Transcript – The Police v Mazela, above, p 7.
^[253] Stoykovski v Mazela [2002] WASCA 193.
^[254] Transcript of Proceedings, The Queen v Herman Safrudin and Lukman Muhamad (Supreme Court of the Northern Territory, Riley J, 10 April 2002) (Transcript – The Queen v Safrudin and Muhamad).
^[255] Transcript – The Queen v Safrudin and Muhamad, above, p 3.
^[256] Transcript – The Police v Mazela, note 31, p 6.
^[257] Transcript – The Queen v Safrudin and Muhamad, note 38, pp 6–7.
^[258] Applicant VFAY v Minister for Immigration [2003] FMCA 289.
^[259] Applicant VFAY v Minister for Immigration [2003] FMCA 289, [25] (Phipps FM).
^[260] Assistant Secretary, Governance and Audit Branch, DIAC, Email to Inquiry in response to follow-up questions, 18 April 2012.
^[261] Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, Submission on Assessment of Disputed Minor Claims to Minister for Immigration and Citizenship, 11 June 2010 (DIAC document) (DIAC Submission to Minister for Immigration).
^[262] DIAC Submission to Minister for Immigration, above, Attachment C.
^[263] DIAC Submission to Minister for Immigration, above.
^[264] Royal College of Paediatrics and Child Health, The Health of Refugee Children – Guidelines for Paediatricians, November 1999, p 13.
^[265] DIAC Submission to Minister for Immigration, note 45, Attachment C.
^[266] Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, Email to Senior Assistant Director, People Smuggling Branch, CDPP, 3 September 2010 (AFP document provided 29 May 2012).
^[267] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 62.
^[268] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 62.
^[269] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 62.
^[270] Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, Email to National Manager Crime Operations, AFP, 3 September 2010 (AFP document provided 29 May 2012).
^[271] Assistant Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 60.
^[272] Federal Agent, AFP, Email to Acting Principal Advisor, Citizenship, Settlement and Multicultural Affairs Division, DIAC, 5 October 2010 (DIAC document mail39642129).
^[273] Acting Principal Advisor, Citizenship, Settlement and Multicultural Affairs Division, DIAC, Email to Federal Agent, AFP, 14 October 2010 (DIAC document mail39646162).
^[274] Acting Principal Advisor, Citizenship, Settlement and Multicultural Affairs Division, DIAC, Email to Federal Agent, AFP, 14 October 2010, (DIAC document mail39642144).
^[275] President, Royal College of Radiologists, Correspondence to Unaccompanied Asylum Seeking Children Reform Programme, UK Home Office, 23 May 2007, Attachment – Email from Acting Principal Advisor, Citizenship, Settlement and Multicultural Affairs Division, DIAC, to Federal Agent, AFP, 14 October 2010 (DIAC document mail39642144).
^[276] Senior Assistant Director, CDPP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 74.
^[277] People Smuggling Meeting Brief Management Meeting, AFP Training College, File Note, 26 October 2010 (AGD document PROS-1).
^[278] Acting Director, Principal Advisor’s Unit, Citizenship, Settlement and Multicultural Affairs Division, DIAC, Email to Officer, Financial Crime and Border Management Section, AGD, 10 January 2011 (AGD document PROS-4).
^[279] Assistant Director, Strategic Policy and Projects Territories West, Department of Regional Australia, Regional Development and Local Government, Email to Principal Legal Officer, People Smuggling Financial Crime and Border Management Section, Criminal Justice Division, AGD, 29 November 2010 (AGD document PROS-2).
^[280] Senior Assistant Director, People Smuggling Branch, CDPP, People Smuggling Prosecutions Age Determination Issues, 15 December 2010 (CDPP document Attachment D document 4) (CDPP People Smuggling Prosecutions – Paper).
^[281] Senior Assistant Director, CDPP Perth Office, Email to Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, 25 November 2010 (DIAC document mail39646086).
^[282] CDPP People Smuggling Prosecutions – Paper, note 64, p 7.
^[283] Report of Senate Committee 2001, note 12, para 3.18. See section 3.1 above.
^[284] CDPP People Smuggling Prosecutions – Paper, note 64, p 7.
^[285] CDPP People Smuggling Prosecutions – Paper, above, footnote 14, p 7.
^[286] CDPP People Smuggling Prosecutions – Paper, above, p 18.
^[287] P Maley, ‘Children in WA jails on smuggler charges’, The Australian, 11 November 2010. At http://www.theaustralian.com.au/news/nation/children-in-jail-on-smuggler-charges/story-e6frg6nf-1225951374315 (viewed 9 July 2012).
^[288] AGD, Response to draft report, 6 July 2012, p 2.
^[289] Question time brief, Asylum seekers – child people smugglers (QTB10-470), Attachment – Email from Principal Legal Officer, People Smuggling Financial Crime and Border Management Section, Criminal Justice Division, AGD, to Officer, Department of Prime Minister and Cabinet, 17 November 2010 (DIAC document mail39646062).
^[290] Principal Legal Officer, People Smuggling Financial Crime and Border Management Section, Criminal Justice Division, AGD, Email to Officer, Department of Prime Minister and Cabinet, 17 November 2010 (DIAC document mail39646062).
^[291] DIAC document mail39646062, above.
^[292] Principal Legal Officer, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 93.
^[293] Principal Legal Officer, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 93.
^[294] Acting Director, Principal Advisor’s Unit, Citizenship, Settlement and Multicultural Affairs Division, DIAC, Email to Officer, DIAC, 13 December 2010 (DIAC document mail39646113).
^[295] DIAC document mail39646113, above.
^[296] Ministers’ Office Brief – Attorney-General/Minister for Home Affairs, People smuggling – children in gaols, 6 January 2011 (AGD document BRIEF-3).
^[297] See for example, Transcript – The Queen v Safrudin and Muhamad, note 38; Transcript – The Queen v Udin and Aman, note 26.
^[298] Ministers’ Office Brief – Attorney-General/Minister for Home Affairs, People smuggling – children in gaols, 6 January 2011 (AGD document BRIEF-3), p 4.
^[299] Deputy Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 114.
^[300] Ministers’ Office Brief – Attorney-General/Minister for Home Affairs, People smuggling – children in gaols, 6 January 2011 (AGD document BRIEF-3), p 5.
^[301] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), pp 115–116.
^[302] Senior Assistant Director, CDPP Melbourne Office, Memo to Senior Assistant Director, CDPP Head Office, 13 April 2011 (BOM062 – CDPP document 115.0029).
^[303] BOM062 – CDPP document 115.0029, above, p 1.
^[304] BOM062 – CDPP document 115.0029, above, footnote 2, p 1.
^[305] BOM062 – CDPP document 115.0029, above.
^[306] BOM062 – CDPP document 115.0029, above, p 4.
^[307] Senior Legal Officer, CDPP Perth Office, Email to Officers, CDPP, 10 March 2011 (PEN059 – CDPP document 238.0194).
^[308] Dr V. Low , Opinion regarding the use of skeletal age determination technique to estimate chronological age, May 2011, Attachment – Submission 15.
^[309] Transcript of Proceedings, The Queen and [TRA029] (Magistrates Court of Western Australia Magistrate Hogan, 17 August 2011) (TRA029 – CDPP document 030.0166), pp 39–40. Dr V. Low acknowledged that he is not a professional statistician or mathematician although he learned basic statistics in high school and had some exposure to statistics in year 1 of his medical studies.
^[310] Barrister-at-Law, Counsel for defence, Letter to Acting Deputy Director, CDPP Brisbane Office, 28 June 2011 (WIL024 – CDPP document 125.0016).
^[311] WIL024 – CDPP document 125.0016, above, p 4.
^[312] Acting Senior Assistant Director, Legal Practice Management and Policy Branch, CDPP, Minute to Director, CDPP, 30 June 2011 (WIL024 – CDPP document 126.0010); Senior Legal Officer, People Smuggling Branch, CDPP, Minute to Director, CDPP, 29 June 2011 (WIL024 – CDPP document 323.0713). See also Acting Senior Assistant Director Legal Practice Management and Policy Branch, CDPP, Email to Officers, CDPP, 30 June 2011 (WILO024 – CDPP document 126.0008).
^[313] Senior Legal Officer, People Smuggling Branch, CDPP Perth Office, Email to Legal Officer, CDPP, 8 July 2011 (VMT011 – CDPP document 155.0207).
^[314] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 164–165.
^[315] Deputy Director, CDPP Perth Office, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 165.
^[316] Solicitor, Letter to Director, CDPP, 11 August 2011 (OFD030 – CDPP document 293.0659).
^[317] Commonwealth agencies meeting on people smuggling crew issues supporting the Senior Officials’ Committee teleconference, Outcomes, 12 August 2011 (AGD document PROS-62).
^[318] Senior Assistant Director, CDPP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), pp 140–141, and (20 April 2012), pp 171–172.
^[319] CDPP Officer for Director, CDPP Perth Office, Letter to Counsel for defence, 16 August 2011 (TIW044 – CDPP document 232.0006), p 2.
^[320] Senior Assistant Director, CDPP Head Office, Minute to the Director, CDPP, 18 August 2011 (OFD030 – CDPP document 293.0049), p 1.
^[321] OFD030 – CDPP document 293.0049, above, pp 2–3.
^[322] Commonwealth agencies meeting on people smuggling crew issues supporting the Senior Officials’ Committee teleconference, Outcomes, 2 September 2011 (AGD document PROS-64).
^[323] R v Daud [2011] WADC 175.
^[324] Senior Assistant Director, CDPP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 136–137.
^[325] Assistant Commissioner, National Manager Crime Operations, AFP, Email to Federal Agents, AFP, 17 November 2011 (AFP document). See also Principal Consultant Statistician, Managing Director, Data Analysis Australia Pty Ltd, Email to Federal Agents, AFP, 1 December 2011 (AFP document provided 29 May 2012); Senior Legal Officer, People Smuggling Branch, CDPP, Email to AFP and CDPP officers, 6 December 2011 (AFP document provided 29 May 2012); Research – Expert – Statistics – Table of Results, 7 November 2011 (CDPP document provided 3 April 2012).
^[326] Information provided by CDPP to the Commission’s request for further documents, 3 April 2012 (CDPP document). See also Lawyer, Legal, Practice Management and Policy Branch, CDPP, Email to Federal Agent, AFP, 12 December 2011 (AFP document provided 29 May 2012).
^[327] Federal Agent, AFP, Email to Lawyer, Legal, Practice Management and Policy Branch, CDPP, 7 December 2011 (AFP document provided 29 May 2012).
^[328] Lawyer, Legal, Practice Management and Policy Branch, CDPP, Email to Federal Agent, AFP, 12 December 2011 (AFP document provided 29 May 2012).
^[329] President of the Australasian Paediatric Endocrine Group et al, Correspondence to Hon C Bowen MP, Minister for Immigration and Citizenship, 19 August 2011, p 1.
^[330] President of the Australasian Paediatric Endocrine Group et al, Correspondence to Hon C Bowen MP, Minister for Immigration and Citizenship, 19 August 2011, p 1.
^[331] President of the Australasian Paediatric Endocrine Group et al, Correspondence to Hon C Bowen MP, Minister for Immigration and Citizenship, 19 August 2011, p 1.
^[332] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 178.
^[333] Senior Assistant Director, CDPP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 177; Deputy Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 177.
^[334] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 180.
^[335] Hon R McClelland MP, Attorney-General, Correspondence to President, Australian Paediatric Endocrine Group, 18 October 2011 (AGD document CORRO-5).
^[336] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 184–185.
^[337] Hon R McClelland MP, Attorney-General, Correspondence to President, Australian Paediatric Endocrine Group, 18 October 2011 (AGD document CORRO-5) p 3.
^[338] Transcript of Proceedings, The Queen v [TRA029] (Magistrates Court of Western Australia, Magistrate Hogan, 8 September 2011) (Transcript – The Queen v [TRA029]), p 7.
^[339] Hon R McClelland MP, Attorney-General, Correspondence to President, Australian Paediatric Endocrine Group, 18 October 2011 (AGD document CORRO-5), p 10.
^[340] Transcript – The Queen v [TRA029], note 122.
^[341] JD Heydon, LexisNexis Australia, Cross on Evidence (at June 2012) [9090]–[9095].
^[342] Transcript – The Queen v [TRA029], note 122, p 7.
^[343] Senior Assistant Director, CDPP Brisbane Office, Minute to Director, CDPP, 23 September 2011 (OXL002 – CDPP document 267.0035), p 2.
^[344] R v Daud [2011] WADC 175.
^[345] R v Daud [2011] WADC 175, 251–252.
^[346] R v Daud [2011] WADC 175, 260–262.
^[347] R v Daud [2011] WADC 175, 263–265.
^[348] R v RMA [2011] WADC 198.
^[349] R v RMA [2011] WADC 198, 81 (Eaton DCJ).
^[350] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to Legal Officers, CDPP, 15 November 2011 (CDPP document Attachment D document 14).
^[351] CDPP document Attachment D document 14, above.
^[352] Australian Government, Joint submission, Submission 30, p 11.
^[353] First Assistant Secretary, AGD, Email to First Assistant Secretary, Community Programs and Children, DIAC, 30 June 2011 (AGD document BRIEF-22).
^[354] First Assistant Secretary, Community Programs and Children, DIAC, Email to First Assistant Secretary, AGD, 30 June 2011 (AGD document BRIEF-22).
^[355] First Assistant Secretary, AGD, Email to First Assistant Secretary, Community Programs and Children, DIAC, 30 June 2011 (AGD document BRIEF-22).
^[356] Question Time Brief, People Smuggling – Crew Prosecution and Age Determination Issues, Attachment – Email from AGD Officer, Border Management and Crime Prevention Branch, Criminal Justice Division, AGD, to QTB Officer, 22 November 2011 (AGD document BRIEF-70).
^[357] Improved process for age determination – Media release, note 2.
^[358] Acting Principal Legal Officer, People Smuggling and Trafficking Section, Criminal Justice Division, AGD, Email to Attorney-General’s Office, 7 July 2011 (AGD document BRIEF-24).
^[359] Questions and Answers – Age Determination, 7 July 2011 (AGD document BRIEF-23), p 1.
^[360] AGD document BRIEF-23, above, p 2.
^[361] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 189.
^[362] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 184–185, 189.
^[363] Question Time Brief, People Smuggling – Crew Prosecution and Age Determination Issues, Attachment – Email from Officer, Border Management and Crime Prevention Branch, Criminal Justice Division, AGD, to QTB Officer, 22 November 2011 (AGD document BRIEF-70), pp 10, 13.
^[364] AGD, Response to draft report, 6 July 2012, p 4.
^[365] Professor Ian Chubb AC, Australia’s Chief Scientist, Correspondence to Deputy Secretary, National Security & Criminal Justice Group, AGD, 11 January 2012.
^[366] Professor Ian Chubb AC, Australia’s Chief Scientist, Correspondence to Deputy Secretary, National Security & Criminal Justice Group, AGD, 11 January 2012.
^[367] President of the Australasian Paediatric Endocrine Group et al, Correspondence to Hon C Bowen MP, Minister for Immigration and Citizenship, 19 August 2011.
^[368] Hon C King MP, Parliamentary Secretary for Health and Ageing, Correspondence to Hon B
O’Connor MP, Minister for Home Affairs and Justice, 7 September 2011 (AGD document IMP-13).
^[369] Australian Government, Joint submission, Submission 30, p 14.
^[370] Australian Government, Joint submission, Submission 30, p 14.
^[371] ARPANSA, Response to AGD re: human imaging for age determination, Attachment – Email from Principal Legal Officer, People Smuggling, Criminal Justice Division, AGD, to Australian Human Rights Commission, 6 March 2012.
^[372] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 17 February 2011.
^[373] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 185.
^[374] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 185.
^[375] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 31 March 2011.
^[376] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011, p 1.
^[377] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011, p 1.
^[378] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 30 June 2011, p 2.
^[379] Revised Explanatory Memorandum 2001, note 21; Report of Senate Committee 2001), note 12.
^[380] Transcript – The Police v Mazela, note 31; Stoykovski v Mazela [2002] WASCA 193.
^[381] Applicant VFAY v Minister for Immigration [2003] FMCA 289.
^[382] Improved process for age determination – Media release, note 2.
^[383] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 14 July 2011.
^[384] Hon R McClelland MP, Attorney-General, Correspondence to Hon Catherine Branson QC, President, Australian Human Rights Commission, 22 August 2011, p 4.
^[385] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 187.
^[386] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 188.
^[387] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 22 August 2011.
^[388] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 188.
^[389] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), pp 188–189.
^[390] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 189.
^[391] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 189.
^[392] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 189.
^[393] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 8 November 2011.
^[394] Assistant Commissioner, National Manager Crime Operations, AFP, Letter to Dr [NAME] OAM, Forensic Odontologist, PathWest Laboratory Medicine, 30 December 2010 (AFP document).
^[395] Forensic Odontologist, PathWest Laboratory Medicine, Letter to Assistant Commissioner, National Manager Crime Operations, AFP, 6 January 2011 (AFP document), p 2.
^[396] Forensic Odontologist, PathWest Laboratory Medicine, Letter to Assistant Commissioner, National Manager Crime Operations, AFP, 6 January 2011 (AFP document).
^[397] Assistant Commissioner, National Manager Crime Operations, AFP, Email to Senior Assistant Director, CDPP, 7 January 2011 (AFP document).
^[398] Assistant Commissioner, National Manager Crime Operations, AFP, Letter to First Assistant Secretary, Criminal Justice Division, AGD, 17 February 2011, Attachment – Email from Principal Legal Officer, People Smuggling, Financial Crime and Border Management Section, Criminal Justice Division, AGD, to Federal Agent, AFP, 28 February 2011 (AGD document IMP-1).
^[399] Minutes, Age determination of people smuggling crew, 1 March 2011, Attachment – Email from Principal Legal Officer, People Smuggling, Financial Crime and Border Management Section, Criminal Justice Division, AGD, to CDPP, AFP and DIAC Officers, 3 March 2011 (AGD document ENG-AHRC-2), p 4.
^[400] AGD document ENG-AHRC-2, above.
^[401] Senior Assistant Director, Legal and Practice Management and Policy Branch, CDPP, Email to AGD and AFP Officers, 30 May 2011 (AGD document IMP-3).
^[402] Deputy Director, CDPP Perth Office, ‘Age Determination – Dental X-Ray Procedures’, 25 May 2011, Attachment – Email from Principal Legal Officer, AGD, to Officers, AGD, 30 May 2011 (AGD document IMP-3), pp 1–2.
^[403] AGD document IMP-3, above, p 2.
^[404] AGD document IMP-3, above, p 4.
^[405] Principal Legal Officer, People Smuggling, Criminal Justice Division, AGD, Email to Officers, AGD, 30 May 2011 (AGD document IMP-3).
^[406] Deputy Director, CDPP Perth Office, ‘Age Determination – Dental X-Ray Procedures’, 25 May 2011, Attachment – Email from Principal Legal Officer, AGD, to Officers, AGD, 30 May 2011 (AGD document IMP-3).
^[407] Commonwealth agencies meeting on people smuggling age determination and crew issues supporting the Senior Officials’ Committee teleconference, Minutes and Outcomes, 10 June 2011 (AGD document PROS-41).
^[408] Assistant Commissioner, National Manager Crime Operations, AFP, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 29 May 2012, p 6.
^[409] ‘Questions and Answers – Age Determination’, Attachment – Email from Acting Principal Legal Officer, People Smuggling and Trafficking Section, Criminal Justice Division, AGD, to Office of the Minister for Home Affairs and Justice, 7 July 2011 (AGD document BRIEF-24).
^[410] Attachment – AGD document BRIEF-24, above, p 5.
^[411] Deputy Director, CDPP, Letter to Assistant Commissioner, National Manager Crime Operations, AFP, 15 July 2011 (CDPP document Attachment D document 12), p 2.
^[412] Assistant Commissioner, National Manager Crime Operations, AFP, Letter to Deputy Director, CDPP, 22 July 2011, Attachment – Email from Manager Operations, AFP, to Principal Legal Officer, People Smuggling and Trafficking Section, Criminal Justice Division, AGD, 22 July 2011 (AGD document IMP-10), p 1.
^[413] Attachment – AGD document IMP-10, above, p 1.
^[414] Assistant Commissioner, National Manager Crime Operations, AFP, Email to Acting Deputy Director, Legal and Practice Management and Policy Branch, CDPP, 3 August 2011 (AGD document IMP-11).
^[415] Commonwealth agencies meeting on people smuggling crew issues supporting the Senior Officials’ Committee teleconference, Outcomes, 12 August 2011 (AGD document PROS-62).
^[416] ‘Crimes Act Regulations – prescribing dental and clavical x-rays as additional age determination procedures’, AGD, File Note, 15 November 2011 (AGD document IMP-18).
^[417] AGD document IMP-18, above.
^[418] See for example, Barton v The Queen (2001) 147 CLR 75; Carter v Hayes (1994) 61 SASR 451; Mallard v The Queen (2005) 224 CLR 125; Cooley v Western Australia (2005) 155 A Crim R 528.
^[419] Cooley v Western Australia (2005) 155 A Crim R 528.
^[420] Commonwealth Director of Public Prosecutions, Statement on Prosecution Disclosure, para 4.1. At http://www.cdpp.gov.au/Publications/DisclosurePolicy/HTML/Default.htm (viewed 9 July 2012).
^[421] R v Keane [1994] 1 WLR 746.
^[422] Cooley v Western Australia (2005) 155 A Crim R 528, 543 (Roberts-Smith JA).
^[423] Whitehorn v The Queen (1983) 152 CLR 657, 663–664 (Deane J).
^[424] See for example, R v Ward [1993] 1 WLR 619, 674.
^[425] R v Ward [1993] 1 WLR 619, 676.
^[426] See for example, Jones v National Coal Board [1957] 2 QB 55, 63 (Denning LJ).
^[427] Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ).
^[428] Commonwealth Director of Public Prosecutions, First Assistant Secretary, Criminal Justice Division, AGD, and Deputy Commissioner, AFP, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), pp 48–49.
^[429] See for example, Ministers’ Office Brief – Minister for Home Affairs and Justice, People smuggling – age determination, 30 November 2011, Attachment – Email from Senior Legal Officer, People Smuggling and Trafficking Section, Criminal Justice Division, AGD, to Officer, AGD, 1 December 2011 (AGD document BRIEF-75), p 5. See also Criminal Justice Division input into brief for Secretary meeting with President of the Australian Human Rights Commission, 27 September 2011 (AGD document BRIEF-35); Questions and Answers – Age Determination, 7 July 2011 (AGD document BRIEF-23).
^[430] CDPP People Smuggling Prosecutions – Paper, note 64, p 11.
^[431] Advice of Mr Peter Hastings QC to the Solicitor-General, 10 July 2009, cited in CDPP People Smuggling Prosecutions – Paper, above, p 11.
^[432] Transcript of Proceedings, The Police v Henry Mazela (Children’s Court of Western Australia, O’Brien J, 12 February 2002). See discussion at section 3.2(b).
^[433] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 69.
^[434] Senior Assistant Director, CDPP Melbourne Office, Minute to Legal Officer, CDPP Head Office, 13 April 2011 (BOM062 – CDPP document 115.0029).
^[435] See discussion in section 3.3 above. See also Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, Email to Deputy Director, CDPP Perth Office, 3 September 2010 (AFP document provided 29 May 2012).
^[436] Barrister-at-Law, Letter to Acting Deputy Director, CDPP Brisbane Office, 28 June 2011 (WIL024 – CDPP document 125.0016).
^[437] Transcript of hearing, Public hearing for Commonwealth agencies, 19 April 2012, p 98.
^[438] Transcript of hearing, Public hearing for Commonwealth agencies, 19 April 2012, p 97.
^[439] Transcript of Proceedings, The Queen v WAK087 and WAK089 (District Court of Western Australia, Goetze DCJ, 31 January 2011) (WAK087 – CDPP document 078.0037), p 65.
^[440] WAK087 – CDPP document 078.0037, above, p 2.
^[441] Senior Assistant Director, CDPP, Transcript of hearing, Public hearing for Commonwealth agencies, 19 April 2012, p 120.
^[442] Senior Assistant Director, CDPP, Transcript of hearing, Public hearing for Commonwealth agencies, 19 April 2012, p 141.
^[443] Officer for Director, CDPP Perth Office, Letter to Counsel for defence, 16 August 2011 (TIW044 – CDPP document 232.0006), p 2.
^[444] Legal Aid NSW, Submission 35, p 8.
^[445] Whitehorn v The Queen (1983) 152 CLR 657, 663–664 (Deane J); R v Lucas [1973] VR 693, 705.
^[446] Transcript – The Queen v Udin and Aman, note 26; Transcript – The Police v Mazela, note 31. See discussion in sections 3.2(a) and 3.2(b) above.
^[447] Principal Advisor, Citizenship, Settlement and Multicultural Affairs, DIAC, Email to Deputy Director, CDPP Perth Office, 3 September 2010 (AFP document provided 29 May 2012).
^[448] Hon R McClelland MP, Attorney-General, Correspondence to Hon C Branson QC, President, Australian Human Rights Commission, 31 March 2011.
^[449] Senior Assistant Director, CDPP Melbourne Office, Memo to Senior Assistant Director, CDPP Head Office, 13 April 2011 (BOM062 – CDPP document 115.0029).
^[450] As discussed in section 3.4(c) above.
^[451] President of the Australasian Paediatric Endocrine Group et al, Correspondence to Hon C Bowen MP, Minister for Immigration and Citizenship, 19 August 2011.
^[452] As discussed in section 3.4(b) above.
^[453] As discussed in section 3.4(c) above.
^[454] Dr V. Low , Consultant Radiologist, Letter to Senior Legal Officer, CDPP Perth Office, 23 July 2011 (TRA029 – CDDP document 063.0250).
^[455] Professor Al Aynsley-Green, Submission 38, p 15.
^[456] Officer for Director, CDPP Perth Office, Letter to Counsel for defence, 16 August 2011 (TIW044 – CDPP document 232.0006).
^[457] Commonwealth Director of Public Prosecutions, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 69.
^[458] As discussed in section 5.2 above.
^[459] R v Ward [1993] 1 WLR 619.
^[460] Cooley v Western Australia (2005) 155 A Crim R 528, 543 (Roberts-Smith JA).
^[461] Commonwealth Director of Public Prosecutions, Response to draft report, 6 July 2012, p 3.
^[462] GP Atlas, note 26, p 44.
^[463] This risk is identified in R v Ward [1993] 1 WLR 619, 674.
^[464] As discussed in Chapter 4, section 5.
^[465] AFP, Response to draft report, 6 July 2012, p 21.
^[466] CDPP, Response to draft report, 6 July 2012, p 2.
^[467] Attorney-General’s Department, Annual Report 2010–11 (2011), p 6. At http://www.ag.gov.au/Documents/Annual+Report+2010-11+full.pdf (viewed 9 July 2012).
^[468] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2011), p 11.
^[469] See for example, Question Time Brief, Asylum Seekers – Child People Smugglers, Attachment – Email from Principal Legal Officer, People Smuggling Financial Crime and Border Management Section, Criminal Justice Division, AGD, to Officer, Department of Prime Minister and Cabinet, 17 November 2010 (DIAC document mail39646062); Ministers’ Office Brief – Attorney-General/Minister for Home Affairs, People smuggling – children in gaols, Attachment – Email from AGD Officer, Financial Crime and Border Management, Criminal Justice Division, AGD, to Ministers’ Office, 6 January 2011 (AGD document BRIEF-3); ‘Questions and Answers – Age Determination’, 7 July 2011 (AGD document BRIEF-23); Improved process for age determination – Media release, note 2.; Question Time Brief, People smuggling – crew prosecution and age determination issues, Attachment – Email from Officer, AGD, to Officers, AGD, 22 November 2011 (AGD document BRIEF-67).
^[470] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon R McClelland MP, Attorney-General, 14 July 2011.
^[471] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 185.
^[472] As discussed in section 6.1(a) above.
^[473] First Assistant Secretary, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (19 April 2012), p 18.
^[474] GP Atlas, note 26, p 40.
^[475] GP Atlas, above, p 44.
^[476] Principal Legal Officer, Criminal Justice Division, AGD, Transcript of hearing, Public hearing for Commonwealth agencies (20 April 2012), p 184.
^[477] AGD, Response to draft report, 6 July 2012, p 3.
^[478] AGD, Response to draft report, 6 July 2012, p 4.
^[479] AGD, Response to draft report, 6 July 2012, p 2.
^[480] AGD, Response to draft report, 6 July 2012, p 1.
^[481] Commonwealth agencies meeting on people smuggling crew issues supporting the Senior Officials’ Committee teleconference, Outcomes, 12 August 2011 (AGD document PROS-62).
^[482] Professor Ian Chubb AC, Australia’s Chief Scientist, Correspondence to Deputy Secretary, National Security & Criminal Justice Group, AGD, 11 January 2012.
^[483] As discussed in section 3.5 above.
^[484] See Chapter 2.
^[485] See Chapter 2.