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Appendix 1: Case studies

An age of uncertainty

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

Appendix 1: Case studies

Case study 1: Ali Jasmin

  • Apprehended: 18 December 2009
  • Charged: 29 March 2010
  • Removed from Australia: 18 May 2012
  • Number of days in detention: 878 days

Until December 2009, Ali Jasmin lived with his family in Bala Uring, a small village on the island of Flores, Indonesia. His family bought fish from the local fishermen and sold them at the market. Ali had completed seven years of schooling and worked as a fisherman in a little town not far from his home.

Ali says that he was approached by a middle-man and offered a job on a boat. He says that he was promised an amount of money to help with shipping goods between the Indonesian islands.[1074] The boat was already at sea when the passengers came on board via smaller vessels. He says that he had never heard of people smuggling before and it did not occur to him that these people were seeking asylum in Australia.[1075]

Ali described the boat as not very sea-worthy, with leaks in the hull. The motor often tripped out and had to be repaired. At one point during their journey the sail broke. Initially, there were six or seven crew members, but only four were on the boat when it reached Australian waters.[1076]

Ali worked as a cook on the boat.[1077] The boat had fuel, water, rice and eggs, but the supply of food and water ran out before it reached Australia. There were no lifejackets or other safety equipment on board, and there was smoke coming from the engine.[1078] On the last night at sea, the engine broke down and the crew could not fix it. The passengers feared they would sink and they formed a chain to pass buckets of water to empty the boat as water was filling the lower deck. Flood water was up to a metre high,[1079] and the passengers were up to their knees in water while bailing it out.[1080] Ali says that he felt half-dead during the journey because he was so afraid.[1081]

18 December 2009

Ali Jasmin is apprehended in Australian waters by Australian authorities. He is one of four Indonesian crew members on board a SIEV carrying 55 Afghani asylum seekers to Australia. Ali tells Australian officials that he was born in 1993 (making him 16 years old). He has a total of 3 185 500 rupiah [A$343 equivalent] in his possession.[1082]

He is taken to Christmas Island for processing and transferred into DIAC custody.

Ali says that he did not understand what was happening and thought the Australian customs boat was the Australian military.[1083]

January 2010

Ali spends several weeks on Christmas Island before being taken to Northern Immigration Detention Centre (Berrimah accommodation) in Darwin.

On 20 January 2010, AFP officers seek Ali’s consent to perform a wrist x-ray based on his earlier claim that he is not yet an adult. When asked his date of birth, Ali says that he is 14 years old and was born on 12 October 1996.

Ali is cautioned and given a copy of his rights in Bahasa Indonesia. Both Ali and an independent adult from Life Without Barriers give consent for the procedure, and an x-ray of his right wrist is taken at Royal Darwin Hospital.[1084] Ali chooses to not speak to a lawyer before a wrist x-ray is taken.[1085]

On 25 January 2010, a Criminal Justice Stay Certificate is issued which states that Ali’s date of birth is 12 October 1996.[1086]

On 28 January 2010, an initial x-ray report says that ‘the skeleton is mature’ as the bones of the wrist have fused and that ‘[a]ccording to the male standards of Greulich and Pyle skeletal age is 19 years or greater’.[1087] It states that ‘the skeletal age and stated chronological age are incongruous’.[1088]

In his interview with the AFP on 20 January 2010, Ali is advised that the question of whether he was under 18 years of age is relevant to ‘the rules governing regular detention, the investigation of the offence or the institution of criminal proceedings’.[1089]

Ali says that he didn’t understand what he was waiting for as no one had explained the criminal justice and investigative process to him. He says that when he was being put on a plane to be transferred to Darwin, he thought he was being sent home to Indonesia.[1090]

He says that he was told by the AFP that the wrist x-ray would specify his age. He says that he didn’t understand the importance of the issue of his age and that he thought that the AFP simply wanted to check his age because they didn’t believe him.[1091]

3 February 2010

Ali is interviewed by DIAC and again states that he is 14 years old.[1092]

30 March 2010

Ali declines to participate in a taped record of interview with the AFP after receiving legal advice over the phone. He says that he would like to communicate with his girlfriend to tell her where he is. The AFP officer replies: ‘We’ll try and organise that for you but it might have to wait until you’re in Hakea on Thursday.’[1093]

On the same day, Ali is formally charged as an adult. A Prosecution Notice is prepared for the Magistrates Court of Western Australia which states that Ali’s date of birth is 12 October 1990 (making him 19 years old).[1094]

7 May 2010

Ali is transferred to Hakea Prison.

Ali says that he was frightened and shocked and did not understand why he was being locked up. Ali says that he was told by the Indonesian prisoners in Hakea that some of the younger crew suspected of people smuggling offences were sent home to Indonesia. He says this was the first time he began to understand how important the issue of his age was.[1095]

July 2010

On 2 July 2010, an indictment is signed by the Senior Assistant Director of the Office of the CDPP which lists Ali’s date of birth as 12 October 1990.[1096]

On 30 July 2010, Ali’s legal representative raises the issue of Ali’s age for the first time during a sentencing mention in the District Court of Western Australia. There is no interpreter present as his lawyer did not book one. Ali’s lawyer says the issue of his age has ‘only just arisen. ... It’s come to my attention now that he may not be 18 ... and apparently a birth certificate is coming from Indonesia.’ The Commissioner of the District Court says: ‘Well, then if he is under 18, presumably we just remand him into the Children’s Court or something?’[1097] While they wait for the birth certificate to arrive, Ali continues to be remanded in an adult prison.

On the same day, the Office of the CDPP confirms that Dr Vincent Low will appear as an expert witness in Ali’s age determination hearing. He is asked to prepare an expert report based on Ali’s wrist x-ray.[1098]

August 2010

On 2 August 2010, a Senior Officer of the Office of the CDPP sends a letter to the AFP saying that they ‘will attempt to list the [age determination] hearing some months away, but it is likely the court will be anxious to determine age as soon as possible’.[1099]

By this stage, the Indonesian Consulate has received a copy of Ali’s birth certificate but it has not yet been received by the defence.[1100] During a directions hearing, the Commissioner of the District Could accepts that once they have clarity on Ali’s age, they can remit the matter to the Children’s Court. When he asks if there is any reason why he shouldn’t continue to have Ali remanded in custody, Ali’s lawyer says ‘No’. Ali’s case is adjourned and he continues to be held on remand in an adult prison while his legal representative waits to be provided with his birth certificate.

On 24 August 2010, DIAC receives a copy of Ali’s birth certificate from the Indonesian Consulate in Western Australia. The birth certificate indicates that Ali is 13 years old. DIAC raises the issue of Ali’s age with the Office of the CDPP and queries his place of detention.[1101] The Office of the CDPP indicate that they will ask the AFP to investigate the provenance of the birth certificate, and that they will not release Ali from custody until an age determination hearing is held and a court determines that he is under 18 years of age.[1102]

The same day, DIAC emails a copy of the birth certificate which it had received from the Indonesian Consulate to the Office of the CDPP.[1103]

September 2010

On 9 September 2010, the Department of Corrective Services in Western Australia contact DIAC querying Ali’s age and ask whether he has been subject to a wrist x-ray.[1104]

On 22 September 2010, the AFP receive an expert report from Dr V. Low and tell the Office of the CDPP: ‘[Dr V. Low] claims that he can only state 19 years or older in line with the determination guidelines but that Jasmin is an adult and has been for some time’.[1105]

On 27 September 2010, the AFP commenced enquiries in Indonesia in an attempt to ascertain the authenticity of the birth certificate.[1106]

October 2010

On 12 October 2010, the Indonesian National Police fax a legalised copy of Ali Jasmin’s birth certificate to an AFP Liaison Officer in Denpasar.[1107]

The Office of the CDPP continues to deny the admissibility of the birth certificate, saying that it was created after the offence was committed. They tell defence that, even though it was provided by the Indonesian Consulate, they will dispute its admissibility unless the defence obtains ‘proper evidence establishing what it is and the circumstances as to how it came into being’.[1108]

On 20 October 2010, the AFP send electronic documents relating to Ali’s age from the AFP Liaison Officer in Jakarta to the Office of the CDPP and state that they think the document ‘doesn’t really accurately clarify his true year of birth’.[1109] The Office of the CDPP request the AFP provide a full translation of the birth certificate.

24 November 2010

The AFP officer responsible for Ali’s case tells the Office of the CDPP that they will not be asking their officers in Jakarta for further documentary evidence:

The home of Jasmin’s family is fairly remote, as is usual in these matters, they are extremely busy and only have a very limited staffing capacity to undertake operational matters. ... I cannot see what this will prove, as there is simply no authority that can accurately stipulate that his date of birth is correct’.[1110]

December 2010

Ali’s age determination hearing takes place in the District Court on 8 December 2010. The hearing commences without an interpreter. When Ali is asked his date of birth, he says in English that he was born on 12 October 1990. When an interpreter arrives, he clarifies in Bahasa Indonesia that he was born on 12 October 1996. He explains that after the x-ray was taken, the AFP told him that he was born in 1990.[1111] Ali’s birth certificate is not placed into evidence by either the defence or the prosecution.

On 22 December 2010, the judge determines that Ali is over 18 years of age.[1112]

Ali is convicted of the offence of people smuggling and sentenced to the mandatory minimum sentence of five years imprisonment with three years non-parole.[1113]

June 2011

In June 2011 Ali Jasmin lodges an appeal against his sentence, based on the standard and burden of proof contained in s 233C of the Migration Act. His appeal is dismissed.[1114]

16 March 2012

The Commission writes to the Attorney-General requesting an independent review of a number of cases where convictions were obtained for people smuggling offences and there was substantial reliance on the use of wrist x-rays to determine age.[1115] Ali Jasmin’s case is one of the cases identified.

April 2012

A journalist travels to Indonesia and meets Ali’s family. He obtains copies of documents corroborating Ali’s claim that he is a child.[1116] Ali’s case receives a significant amount of media attention.[1117]

May 2012

On 17 May 2012, the Attorney-General announces that three Indonesian nationals convicted of people smuggling will be released from prison and returned to Indonesia.[1118] Media reports confirm that Ali Jasmin is one of these three individuals.[1119]

On 18 May 2012, Ali returns home to Indonesia. Since first claiming to be a child, Ali has spent 97 days in immigration detention and 781 days in a maximum security adult prison.

Case study 2: OSB051

  • Apprehended: 30 December 2009
  • Charged: 17 March 2010
  • Removed from Australia : 18 May 2012
  • Total days in detention: 864 days

Until December 2009, OSB051 lived with his mother, brother and three sisters in Oelaba, a small village on Rote Island in Indonesia. His father passed away some years ago. His family worked as fishermen or helped with selling fish at the local market where they could earn up to 20 000 rupiah per week [A$2 equivalent].[1120] OSB051 had attended primary school for some years and had worked as a fisherman for two months.[1121]



OSB051 was looking for work on a nearby island when he was approached by a man and offered 1 000 000 rupiah [A$105 equivalent] to transport rice.[1122] OSB051 says that this was a lot more money than he would normally be paid, but he believed that all four people on the boat would share the money they earned by selling the bags of rice. OSB051 was not told that they would be coming to Australia. He did not receive the money he was promised.[1123]



OSB051 boarded the boat at Makassar and fell asleep while waiting for the rice to arrive. The boat was already at sea when the asylum seekers came on board via smaller boats. OSB051 woke up in the middle of the night to see a lot of people on the boat and he became scared and started to cry.[1124] He says that he had never seen people like the asylum seekers and he did not know where they had come from.[1125] He asked the captain where they were going but the captain would not answer.[1126]

During the journey, OSB051 worked as a cook on the boat.[1127] He says that he was initially told that they would be at sea for two days. After four days had passed, he started to worry and realised that something was wrong, but no one would tell him where they were going or what they were doing. He says that there was no opportunity for him to get off the boat as it never anchored anywhere.[1128]



30 December 2009



OSB051 is apprehended in Australian waters by Australian authorities. He is one of four crew members on board SIEV 90, carrying 48 Afghani asylum seekers to Australia. He does not understand what is happening when the Australian customs officials board the boat. He is scared and crying.[1129]



January 2010



On 5 January 2010, OSB051 is taken into an alternative place of detention on Christmas Island (Construction Camp). The nominal roll compiled after interception lists OSB051’s date of birth as 17 April 1997 (making him 12 years old).[1130]



On 12 January 2010, OSB051 tells immigration officers that his date of birth is 7 April 1997.[1131]



On 21 January 2010, AFP officers seek OSB051’s consent to perform a wrist x-ray. OSB051 is cautioned and given a copy of his rights in Bahasa Indonesia.[1132] He is offered an opportunity to speak with a lawyer, but declines.[1133] Both OSB051 and an independent adult from Life Without Barriers give consent for the procedure, and an x-ray of his left wrist is taken at Royal Darwin Hospital.[1134]



On 25 January 2010, a Criminal Justice Stay Certificate is issued which states that OSB051’s date of birth is 17 April 1997.[1135]



On 28 January 2010, an initial x-ray report says that OSB051 is 19 years or older.[1136]



OSB051 says that it was only after he arrived on Christmas Island that he was told that the passengers were asylum seekers and that they needed permission to come to Australia.[1137]



He says that he did not understand what was happening when the AFP asked him if he wanted to have a wrist x-ray taken.[1138] He says that the AFP officers told him a wrist x-ray would prove that he was under 18 years old when he arrived in Australia, and that he agreed to the procedure because the AFP officers did not believe him when told them his age.[1139]



March 2010



On 17 March 2010, OSB051 participates in a record of interview with the AFP. This is the first time he speaks to a lawyer over the phone. During the interview, AFP officers tell OSB051 that: ‘We have deemed you to be nineteen years or older based on an x-ray that was taken in a hospital that you consented to.’



OSB051 clarifies that his date of birth is 7 April 1997 and he knows this is his correct age as this is what he was told when his father died. He tells the AFP that he started school in 2001 and attended primary school until completing sixth grade in 2008.[1140]



Later that day, OSB051 is arrested and formally charged as an adult. A Prosecution Notice is issued which states that his date of birth is 17 April 1990 (making him 20 years old).[1141]



On 18 March 2010, OSB051 first appears in Perth Magistrates Court. He is placed on remand in an adult correctional facility.



OSB051 says that when he first entered prison, he was sad and afraid as Australians are very tall people.[1142]



From March 2010 to July 2010, OSB051 is unrepresented in court on a number of occasions as there is no appearance by his defence representatives.[1143]



May 2010



On 31 May 2010, an officer of the Office of the CDPP emails Legal Aid to query why OSB051 has been unrepresented in court for his last two appearances.[1144]



July 2010



On 1 July 2010, OSB051’s lawyer appears in court and says he has been unable to locate OSB051 and has been unable to take instructions from him. The case is adjourned.[1145]



OSB051 says that the first time he met his lawyer was when he was on remand at Albany Regional Prison.[1146]



On 29 July 2010, OSB051’s lawyer raises the issue of OSB051’s age for the first time. He enters a plea of no jurisdiction before the Perth Magistrates Court on the basis that OSB051 claims to have been under 18 years old at the time of the offence. His matter is listed for an age determination hearing on 16 November 2010.[1147]



September 2010



On 3 September 2010, the defence tell the Office of the CDPP that they may challenge the x-ray on the basis that OSB051 consented to x-rays but was not told that he was consenting to x-rays being taken for an age determination purpose.[1148]



On 9 September 2010, the Department of Corrective Services in Western Australia contacts DIAC querying OSB051’s age and ask whether he has been subject to a wrist x-ray.[1149]



October 2010



On 19 October 2010, the Office of the CDPP receives an expert report from Dr Vincent Low after requesting a ‘second opinion’ on the initial x-ray result.[1150] It states that the probability of OSB051 having his stated date of birth is zero.[1151] The report is disclosed to the defence.



On 21 October 2010, OSB051’s lawyer contacts Dr V. Low to ask him for more information on OSB051’s x-ray and the interpretation of x-rays in order to decide whether to obtain a report from their own expert.[1152]



An Office of the CDPP brief to counsel about several defendants including OSB051 says that ‘the AFP arranged for wrist x-rays which confirmed that they were in fact adults’. It goes on to say that:

The defence in each case has been remarkably lax in failing to pursue any of these matters given that the xrays in each case were performed many months ago. It has been entirely as a result of the prosecutors for each matter reminding them of the issue [of age].[1153]

16 November 2010



OSB051’s lawyer contacts the Office of the CDPP to say that the defence no longer challenges the lawfulness of the x-ray and they agree to the x-ray being admitted as evidence.[1154]



On the same day, an age determination hearing is held in Perth Magistrates Court. No evidence of age other than wrist x-ray analysis is considered.[1155]



3 December 2010



A magistrate finds on the balance of probabilities that OSB051 was over 18 years old at the time of offence and that the Magistrates Court has jurisdiction to hear his case.[1156]



OSB051 says that this was the second occasion where there was no interpreter present in court and that he did not understand what was happening. He says that on both occasions, his lawyer told him that no interpreter was available, but he continued with the hearings anyway. He told OSB051 that he would meet him at the prison and explain what happened during the hearings afterwards, but this never occurred.[1157]



28 January 2011



OSB051 enters a guilty plea and is committed to the District Court of Western Australia for sentencing.[1158]



March 2011



On 8 March 2011, the Deputy Director of the Office of the CDPP agrees that there is a public interest in proceeding on indictment in this matter.[1159]



On 14 March 2011, the defence obtains an expert report on OSB051’s x-ray from Dr James Christie. It states that:

the stated chronological age and the skeletal age are incongruous. However it is not possible from this examination to draw a conclusion as to whether Mr [OSB051] is greater than 18 years or less than 18 years at the time of the study.

It also states that ‘Dr Low’s use of apparently precise percentage estimates of skeletal age is not supported by scientific use of the data’.[1160]



On 17 March 2011, the defence sends Dr Christie’s report to the Office of the CDPP and informs them that they will be contending at sentencing that OSB051 was under 18 years of age at the time of the offence.[1161]



On 25 March 2011, the defence raises the issue of OSB051’s age as a matter relevant to sentencing during a listing hearing in the District Court.[1162]



21 June 2011



A judge of the District Court determines that the District Court is not bound by the Magistrates Court’s finding on age. He holds that it is open for an accused to raise the issue of their age at sentencing stage in the District Court, and if it is established on the balance of probabilities that an accused was under 18 at the time of the offence, the matter will be remitted to the Children’s Court for sentencing.[1163]



OSB051’s case is listed for an age determination hearing in the District Court on 10 November 2011.



August 2011



The AFP receives documentary evidence of age from the Indonesian Consulate. According to the date of birth recorded on the document, OSB051 would have been 17 years and six months at the time of the offence. [1164]



September 2011



OSB051 says that someone from Australia tried to call his older sister in Indonesia, but she did not understand as they were speaking in English. OSB051 is not aware of any other attempts made to contact his family in Indonesia to obtain information about his age.[1165]



14 October 2011



The defence obtains an expert report from Professor Tim Cole, a professor of medical statistics. It states that the conclusion drawn by Dr Low that ‘it is a reasonable interpretation that Mr [OSB051] is 19 years of age or older’ based on the wrist x-ray is ‘wrong and should be dismissed’. It states that ‘the chance of [OSB051] having become skeletally mature before age 18 is 61%’.[1166]



November 2011



On 2 November 2011, an internal memorandum discussing the issue of age in OSB051’S case was produced within the Office of the CDPP. The memorandum notes that the CDPP had consistently been informed that AFP enquiries in Indonesia had not resulted in the production of any documents. However, it had become apparent to the Office of the CDPP that an age related document had in fact been obtained by the AFP some months earlier.[1167] A separate internal Office of the CDPP memo prepared by the Principal Legal Officer states that the age related document from Indonesia has ‘no forensic value’ and recommends continuing the prosecution against OSB051.[1168]



On the same day, a separate memo is prepared by the Senior Assistant Director of the Office of the CDPP which recommends that the prosecution against OSB051 be discontinued on public interest grounds, and as consistent with the conservative policy approach to be taken to the issue of age by the Office of the CDPP. It states that ‘it cannot be completely ruled out that Mr [OSB051] was under 18’. The memo is marked ‘draft’ and ‘not sent’.[1169]



On 2 November 2011, the Office of the CDPP also discloses the documentary evidence obtained from Indonesia to the defence.[1170] The next day, the defence contacts the Office of the CDPP to inform them that a plea of guilty will be entered to the charge on the indictment and the matter can proceed to sentencing.[1171]



On 10 November 2011, the age determination hearing is vacated as the defence does not have any positive evidence to adduce in favour of OSB051’s age claim. The defence enters a guilty plea and withdraws their previous objection raised to jurisdiction. During the hearing, the District Court Judge says: ‘it just strikes me as odd that in this day and age ... reliable evidence of age can’t be obtained by one side or the other’.[1172] The matter proceeds to sentence and OSB051 is sentenced to five years imprisonment with three years non-parole.[1173]



OSB051 says that he felt he had been waiting too long already – he had already spent two years in prison, and he just wanted it to be over. He felt that there was nothing he could do about it as he does not have any documents to prove his age – his family are poor people and they do not have enough money to buy a birth certificate. He says that he has asked his mother whether there is any proof of his age, but she has told him that they have nothing in writing.[1174]



March 2012



The Commission writes to the Attorney-General requesting an independent review of a number of cases where convictions were obtained for people smuggling offences and there was substantial reliance on the use of wrist x-rays to determine age.[1175] OSB051’s case is one of the cases identified.



April 2012



DIAC officials visit Albany Regional Prison and speak to some of the Indonesian prisoners. OSB051 says that he did not understand why they were asking questions about age for the Indonesians who have already been sentenced – he says that he feels it is too late for them to ask questions about age now. He says he did not receive a reply when he asked them if he would be sent home if he was under 18 years old.[1176]



On 26 April 2012, Commission staff members visit OSB051 at Albany Regional Prison.



He says that though he was initially scared in prison, he has been here so long that he feels being in prison is almost normal. He says that he used to be able to contact his family fairly regularly, but he thinks the number may have been recently disconnected. He is very worried about them as he has no other way of getting in touch with them and he does not know how they are. He expresses a desire to go home. He plans to continue to work as a fisherman, but that he certainly does not want to come back to Australia.[1177]



May 2012



On 17 May 2012, the Attorney-General announces that three Indonesian nationals convicted of people smuggling will be released from prison and returned to Indonesia.[1178] OSB051 is one of these three individuals.



On 18 May 2012, OSB051 returns home to Indonesia. Since first claiming to be a child, OSB051 has spent 71 days in immigration detention and 793 days in a maximum security adult prison.

Case study 3: NTN031

  • Apprehended: 29 December 2009
  • Charged: 6 October 2010
  • Removed from Australia: 26 November 2011
  • Number of days in detention: 690 days

Until December 2009, NTN031 worked as a fisherman in Indonesia. He had been working as a fisherman since leaving school mid-way through junior high school. When the weather was poor and not suitable for fishing, NTN031 worked as a farmer on his friend’s farm.[1179]



NTN031 says that he had no intention of coming to Australia, and that he was not told he was coming to Australia. NTN031 was told that he was to take the passengers on the boat from Timika to Merauke Island.[1180] The boat departed at night from a remote location,[1181] and the normal captain got off the boat before it left the shore.[1182]



During the six to seven day journey, NTN031 assisted with refuelling the engine and he also assisted with steering.[1183] After a few days, they ran out of drinking water and there was very little food on the trip. The boat sailed for several days under its own power before the engine broke down. The vessel began to take on water, causing the passengers to fear for their lives. A manual pump and buckets were used to draw out the water.[1184] NTN031 says the boat drifted for two days before ending up in Australian waters because two of the passengers on the boat would not let the crew drop anchor.[1185]



29 December 2010



NTN031 is apprehended outside of Australian waters but within Australia’s Exclusive Economic Zone by Australian authorities.[1186] He is one of three Indonesian crew members on board a SIEV carrying 30 Afghani asylum seekers to Australia. He has a total of 864 000 Indonesian rupiah [A$91 equivalent] in his possession.[1187]



January 2010



On 5 January 2010, NTN031 is transferred from the Navy vessel to an alternative place of detention on Christmas Island.



On 10 January 2010, during a DIAC entry interview, NTN031 states that his date of birth is 27 November 1993. This would make him 16 years old. He also says that his brother’s contact phone number for Indonesia is saved in his mobile phone which has been confiscated.[1188]



On 13 January 2010, NTN031 is transferred to Northern Immigration Detention Centre in Darwin.



On 21 January 2010, AFP officers seek NTN031’s consent to perform a wrist x-ray. While obtaining consent, NTN031 is told by an AFP officer that the purpose of the wrist x-ray is ‘to determine whether or not you are under the age of eighteen’. When he is asked ‘Do you understand why that x-ray is needed?’, NTN031 says ‘[t]o check my true age’. He confirms that he believes that his date of birth is 27 November 1993.[1189]



NTN031 is cautioned and given a copy of his rights in Bahasa Indonesia.[1190] Both NTN031 and an independent adult from Life Without Barriers give consent for the procedure,[1191] and an x-ray of his left wrist is taken at Royal Darwin Hospital.



On 22 January 2010, an initial x-ray report by [radiologist] states that the bones in NTN031’s wrist are ‘almost completely fused’ and his ‘skeletal age is estimated at approximately 18.5 years’.[1192]



3 February 2010



An informal meeting takes place between NTN031 and DIAC staff, as well as a representative from Life Without Barriers. According to a summary of the meeting:

[NTN031] stated that he was 18 and as such would like to be moved to the [adult] NIDC. ... Client confirmed he was 18 and would like to be moved. ... [DIAC staff] advised of the results of the wrist x-ray and explained that these confirm that client is 18. Client was advised that a move to the NIDC would be arranged.[1193]

7 July 2010



During a taped record of interview with the AFP, the following interaction takes place concerning NTN031’s wrist x-ray result:

FEDERAL AGENT: Do you remember having x-ray on your wrist?

THE INTERPRETER: Yes, I was x-rayed.

FEDERAL AGENT: Yeah. They tell us you’re 19, over 19.

THE INTERPRETER: No, I was not told that. At the time I had my x-ray, I was told that my age was between 18 and 19, but I’m not over 19.

FEDERAL AGENT: So – okay. So you were told between 18 and 19?

[NTN031]: Yeah.

FEDERAL AGENT: And you still say you’re 16, even though medical proof shows you’re over?

THE INTERPRETER: As soon as I found that out, I asked that I be moved ... to the place with the adults. ...

FEDERAL AGENT: Okay. Is it possible that you are over 18? That you are not sure of your year of birth?

THE INTERPRETER: No. My date of birth is correct. ...

FEDERAL AGENT: [I]f you believe you are 16, why did you ask to be moved into the adult detention centre?

THE INTERPRETER: Because I’m the sort of person, I was a bit afraid to go into debate with them over it.[1194]

It is later suggested by the AFP that ‘the main reason some accused persons in detention, claiming to be juveniles, ask to be moved to the adult centre is because they cannot gain access to cigarettes while being treated as a juvenile’.[1195]

6 October 2010



NTN031 is arrested and charged as an adult.[1196] A prosecution notice is signed which states that NTN031’s date of birth is 27 November 1991.[1197]



1 November 2010



NTN031 is transferred to Albany Regional Prison, an adult maximum security correctional facility.



18 January 2011



An email from the Office of the CDPP to Legal Aid raises the issue that NTN031 does not have legal representation.[1198] By this time, he has been in detention for over 12 months and it is over three months since he was charged.



April 2011



On 12 April 2011, an internal email from the Deputy Director of the Office of the CDPP draws attention to the initial x-ray report which found that NTN031 was 18.5 years old. It states that the benefit of the doubt should be given and the Office of the CDPP should consider discontinuing the prosecution.[1199]



On 26 April 2011, a second medical opinion is obtained for the AFP from Dr Vincent Low. He says that NTN031’s wrist has reached skeletal maturity, and ‘it is a reasonable interpretation that [NTN031] is 19 years of age or older’.[1200] He states that the probability of NTN031 having a date of birth of 27 November 1993 ‘is less than 1%’.[1201]



20 May 2011



NTN031’s legal representatives raise the issue of age for the first time. The defence indicates that NTN031 is disputing age and challenges the jurisdiction of the Perth Magistrates Court to hear his case. The defence asks for an age determination hearing to be listed.[1202]



July 2011



On 17 July 2011, a Statement of Material Facts is prepared by the Office of the CDPP which states that a wrist x-ray conducted on NTN031 identifies that he is ‘over the age of 18 years of age, believed to be at least 19 years of age’.[1203]



On 25 July 2011, the Office of the CDPP contacts the defence to offer NTN031 a dental x-ray to help determine his age.[1204]



August 2011



On 10 August 2011, an AFP officer tells the Office of the CDPP that she has requested enquiries to be conducted in Indonesia to locate documentation confirming NTN031’s age.[1205]



On 26 August 2011, the age determination hearing is vacated due to the unavailability of defence counsel.[1206]



September 2011



On 1 September 2011, almost two years after NTN031 was apprehended in Australia, an AFP officer tells the Office of the CDPP that enquiries are underway in Indonesia to locate documentation confirming NTN031’s age, and that it can take between two to eight weeks for results to become available.[1207]



On 22 September 2011, the Magistrate in the Perth Magistrates Court decides that it would be a waste of the court’s time to have an age determination hearing, as the District Court is able to reconsider an age determination issue and the question of jurisdiction that has previously been determined in the Magistrates Court.

NTN031 is committed for trial on 16 December 2011, with the expectation that an age determination hearing will take place in the District Court.[1208]



On 28 September 2011, the Office of the CDPP recommends signing an indictment to proceed against NTN031. It states:

[NTN031] claims to be a juvenile and is disputing the jurisdiction of the court. ... This minute is prepared based on the assumption that the Crown will successfully argue that [NTN031] was over 18 years at the time of the alleged offence.[1209]

November 2011



On 16 November 2011, an AFP officer is assigned to travel to Indonesia for three weeks to personally work with the Indonesian National Police in several investigations regarding the ages of Indonesians charged with people smuggling. NTN031 is one of these individuals.[1210]



On the same day, an internal minute is sent to the Commonwealth Director of Public Prosecutions recommending the prosecution against NTN031 be discontinued. It notes that he has consistently maintained that his date of birth is 27 November 1993, and that the AFP enquiries have not resulted in the production of any documents from Indonesia relevant to determining age. In particular, it expresses concerns that ‘the fact that those two doctors cannot agree, casts serious doubt on the reliability of the method of age assessment and interpretation of the x-ray’.[1211]



On 22 November 2011, a decision is made to discontinue the prosecution.[1212]



On 26 November 2011, NTN031 returns home to Indonesia. Since first claiming to be a child, NTN031 has spent 278 days in immigration detention and 412 days in a maximum security adult prison.

Case study 4: INN012

  • Apprehended: 20 February 2010
  • Charged: 14 October 2010
  • Removed from Australia: 16 November 2011
  • Number of days in detention: 631 days

Until February 2010, INN012 lived with his aunt, his sister, and his aunt’s four children in Alor Pantar Bakalang, Indonesia.[1213] Both his parents have passed away. INN012 began working after he completed primary school. He worked a number of casual jobs which have not provided him with much money – as a deckhand carrying bags of rice or cement, working on his cousin’s boat and also helping his aunt clean the house while the family farmed.[1214] He also worked as a machine boy on small wooden power boats, where he could earn up to 700 000 rupiah [A$74 equivalent] per month. In addition to this, his aunt required him to go fishing.[1215] He had been fishing since he left school, using his own canoe. He could earn up to 30 000 rupiah [A$3.20 equivalent] per day selling fish, or up to 150 000 rupiah [A$16 equivalent] per week.[1216] He would give half of his earnings to his aunt to use for daily needs.[1217]



INN012 was sitting near the entrance of his house when he was approached by a man named ‘Herman’ who he had never met before. Herman offered him 10 million rupiah [A$1060 equivalent] to take some people around the small islands in Indonesia. INN012 was told that he would be paid once he returned home.[1218]



INN012 says that he went by boat to Makassar with Herman where they met the other crew members. They then drove to Surabaya to find another vessel as the original boat was too narrow and too shallow to be of use. Herman did not accompany the crew when the boat left Surabaya. The passengers came onto the boat from another vessel while out at sea.[1219] During the journey, INN012’s duties on the boat included looking after the engine, steering the boat at times and raising and lowering the sail.[1220]



February 2010



On 20 February 2010, INN012 is apprehended in Australian waters near Ashmore Reef by Australian authorities. He is one of three Indonesian crew members on board a SIEV carrying 10 Afghani asylum seekers to Australia. He has 9 000 rupiah [$1 equivalent] in his possession.[1221] INN012 tells members of the Royal Australian Navy that he is 15 years old.[1222] The DIAC nominal roll records INN012’s date of birth as 1 January 1995.[1223]



On 24 February 2010, INN012 is taken to Christmas Island for processing and transferred into DIAC custody. SERCO records his date of birth as 1 January 1995.[1224]



On 25 February 2010, during a DIAC entry interview, INN012 again asserts that he is 15 years old.[1225] DIAC proceeds to treat INN012 as a juvenile.[1226]



10 March 2010



INN012 is transferred to Northern Immigration Detention Centre (Berrimah accommodation) in Darwin.



April 2010



On 1 April 2010, AFP officers seek INN012’s consent to perform a wrist x-ray based on his earlier claim that he is not yet an adult. INN012 is cautioned and given a copy of his rights in Bahasa Indonesia.[1227] Both INN012 and an independent adult give consent for the procedure, and an x-ray of his left wrist is taken in Darwin.[1228] An initial medical opinion assesses INN012 to be about 19 years old.[1229]



On 6 April 2010, a Criminal Justice Stay Certificate is issued which states that INN012’s date of birth is 1 January 1995.[1230]



June 2010



On 16 June 2010, INN012 participates in a taped record of interview with the AFP. He declines to make contact with a lawyer.[1231] An independent adult is present during the interview but appears to stay silent and offers no advice to INN012.[1232] During the interview, INN012 is told by the AFP that the wrist x-ray determined his age to be 19 years old.[1233] He is then asked the question ‘Are you under the age of eighteen?’, and he says ‘Yes. I’m nineteen’.[1234]



This is then referred to as an ‘admission’ by INN012 of being born on 1 January 1991.[1235]



A psychologist report obtained by INN012’s defence lawyer during preparation for his trial describes INN012’s experience of his interview with the AFP. The report reads:

[INN012] stated that he was afraid during the interview with the Police. When asked why he initially said he was 15 years old and later said he was 19 years old, [INN012] reported that “they asked me so many questions ... I was confused ... they told me according to a wrist x-ray my age should be 19 and I’m afraid to go against that ... but the lady who raised me said my age was 15 and how could I not believe her ... I am confused about the x-ray”. He added that “in that interview, I said the wrong thing in my heart”.[1236]

October 2010



On 14 October 2010, INN012 is formally arrested and charged. According to a description in the psychologist’s report, INN012 found the experience of being arrested frightening:

[H]e was “terrified” when he was arrested and stated that his heart was racing. He added that he thought it was better to stay quiet so as not to “say anything against the police”.[1237]

The same day, the AFP contacts the Indonesian Consulate and the Deputy Consular General agrees to contact INN012’s uncle in Indonesia to inform him of INN012’s arrest.[1238] INN012 appears before Central Local Court.[1239] Bail is not applied for and is formally refused. INN012 is transferred from immigration detention to the Metropolitan Remand and Reception Centre at Silverwater Correctional Centre. Again, the psychologist report obtained by INN012’s defence lawyer describes INN012’s experience of being in prison:

Of his situation in prison... he described that he feels “the others are more grown up than me” and further stated that he feels “sad” about being in prison. Specifically, he stated that he missed the sky and wishes he could go home. He commented that he tries to “live each day as it goes by” and tries to keep busy by working in the prison folding clothes.[1240]

26 November 2010



The full brief of evidence on INN012’s case is served on the defence.[1241] This is the first time INN012 receives legal representation.[1242]



December 2010



On 20 December 2010, INN012’s lawyer withdraws from the case due to a potential conflict of interest. The matter is returned to the Legal Aid Commission for reallocation.[1243]



On 24 December 2010, INN012 obtains new legal representation. It is noted that there will be a delay until 17 January 2011 until the previous lawyer returns from holiday so that he can transfer the brief of evidence across to INN012’s new defence representatives.[1244]



January 2011



On 10 January 2011, an Office of the CDPP file note from a conversation with INN012’s defence representatives notes that ‘he does look young’. [1245] The defence raise the issue of his age for the first time and ask for a copy of the wrist x-ray and report.[1246]



February 2011



On 2 February 2011, the AFP obtain another report on the initial wrist x-ray from a consultant radiologist. He says that ‘it is a reasonable interpretation that [INN012] is above the age of 19 years’.[1247]



On 7 February 2011, a magistrate in the Local Court expresses his unhappiness with the progression of the matter and apologises to INN012 for the delay.[1248]



March 2011



On 7 March 2011, INN012’s defence representatives make an application for an adjournment of four weeks to allow time to obtain an expert report, having only received the original x-ray one week earlier.[1249]



On 29 March 2011, an email from the AFP to the Office of the CDPP refers to the taped record of interview where INN012 is asked:

how old he is and [INN012] answers 19. This question is followed by [INN012] claiming that he does not know his date of birth. This is again consistent with the majority of SIEV cases whereby at the time of interception both false names and dates of birth are provided to authorities in order to minimise the chance of prosecution.[1250]

30 May 2011



Dr Vincent Low provides the AFP with an expert report which states that the probability of INN012 being less than 18 years old at the date of the offence is approximately 24%.[1251]



June 2011



On 6 June 2011, a magistrate from the Bankstown Local Court says that INN012’s matter has been dragging on since October 2010 and it is not fair to the accused.[1252]



On 16 June 2011, the AFP makes its first request to Indonesia for age related documentation, 16 months after INN012 was apprehended. They state that INN012’s date of birth is 1 January 1991.[1253]



July 2011



On 7 July 2011, the AFP receive documentary evidence from Indonesia. They obtain two ‘Citation of Birth Certificates’; one for a ‘[INN012]’ and the other under a different name. The two citations are identical in all aspects except for name and year of birth. The AFP ‘suggests that the document in the name of [INN012] where no original was available could be a fraudulent document’.[1254]



On 8 July 2011, INN012’s lawyers ask the Office of the CDPP to discontinue the prosecution on the grounds that INN012 was 15 years old at the time of the offence and based on his special vulnerability.[1255] They provide a radiologist report which states that the GP Atlas ‘was not intended as an estimator of chronological age. Extrapolating data in a reverse fashion is not scientifically valid’. The report goes on to say that ‘no test for chronological age is conclusive’. The radiologist states that INN012 has a skeletal age of 19 years, but ‘it is incorrect to interpret this finding as stating he is 19 years or older. ... [He] could be under 18 years of age and still have a skeletal age as described.’[1256]



The defence also provide the Office of the CDPP with a statement from an Indonesian cultural expert who interviewed INN012 and reviewed the AFP taped record of interview. She states that it is likely INN012 accepted what the AFP officer said when he was told that he was 19 after the wrist x-ray, as ‘[w]hen someone in authority tells a villager something, he or she would simply accept it, out of deference or fear of people in authority’.[1257]



The defence also provides a report of a clinical psychologist who reports that INN012 has a significant mental impairment with an intellectual functioning in the lowest 5% of his aged peers,[1258] and that he meets the criteria for a mild to moderate intellectual disability.[1259] She also says there are several indicia of INN012’s youth, which include ‘a lack of any intimate relationships, or even holding hands with a girl, lack of licence to drive a moped or car, and lack of identity card known as KTP’.[1260]



On 8 July 2011, an internal Office of the CDPP email indicates that they will object to the tender of both reports produced by the defence, the cultural report ‘on the basis that its content is irrelevant to an age determination activity’ and the report of the clinical psychologist on the grounds that it ‘does not relate to any chronological age but to [INN012’s] perceived ability to “handle imprisonment in an adult prison”’.[1261]



On 18 July 2011, an Office of the CDPP minute is prepared by the Legal Officer responsible for INN012’s case and recommends that the prosecution be discontinued based on the clinical psychologist’s report that INN012 has an intellectual disability.[1262]



The same day, an officer of the AFP communicates to the Office of the CDPP that he cannot see any facts that indicate the prosecution should be discontinued, ‘[n]otwithstanding the compassion one may feel for [INN012] and his circumstances’.[1263]



On 20 July 2011, a Principal Legal Officer and Senior Legal Officer of the Office of the CDPP both decide to continue with the prosecution, stating ‘[i]n regards to intellectual deficit, the level of poverty and lack of education is typical in these offence [sic] and require general deterrence. ... [T]he accused knew what he was doing and expected to be paid’.[1264]



August 2011



On 15 August 2011, an age determination hearing is held in Bankstown Local Court. The Magistrate ‘accepts that x-rays cannot give a chronological age’. However, based on the wrist x-ray evidence he believes it is more probable than not that INN012 was over 18 years old at the time of the offence.[1265]



On 29 August 2011, INN012 is committed for trial in Campbelltown District Court on 12 June 2012.[1266]



October 2011



On 21 October 2011, INN012’s lawyers once again ask the Office of the CDPP to discontinue the prosecution on the grounds that INN012 is a child. They produce an expert report from Professor Tim Cole asserting that there is a 61% probability of INN012 reaching skeletal maturity before 18 years of age.[1267]



On 23 October 2011, INN012’s defence lawyer travels to Indonesia and gathers affidavit evidence of INN012’s age from his sister, aunt and uncle attesting to his claim that he was less than 18 years old.[1268]



November 2011



On 1 November 2011, INN012’s lawyers send the Office of the CDPP the affidavits obtained from INN012’s sister, aunt and uncle which state that he is less than 18 years old.



On 2 November 2011, an Office of the CDPP minute recommends that the prosecution against INN012 be discontinued following receipt of the defence evidence.[1269] A file note written by an Acting Principal Legal Officer from the Office of the CDPP agrees with the recommendation to discontinue. Nonetheless, it states that: ‘The report of Professor Cole does no more than attempt to undermine the credibility of the methodology which has been proscribed by the Australian Parliament.’[1270]



On 7 November 2011, the Commonwealth Director of Public Prosecutions agrees to discontinue the case against INN012.[1271]



On 8 November 2011, charges are formally withdrawn at Sydney District Court. INN012 is subsequently released to Villawood Immigration Detention Centre.[1272]



On 16 November 2011, INN012 returns home to Indonesia. Since first claiming to be a child, INN012 has spent 241 days in immigration detention prior to formal arrest, and 390 days in an adult prison.

Case study 5: DUR041

  • Apprehended: 28 March 2010
  • Charged: 7 October 2010
  • Removed from Australia: 3 December 2010
  • Number of days in detention: 245 days

Until March 2010, DUR041 lived with his mother in Rote, Indonesia. DUR041 only completed up to Grade 3 of school in his village as his family could no longer afford to pay the school fees. After leaving school, DUR041 worked as a fisherman and could earn up to 50 000 rupiah per day [A$5.30 equivalent].[1273] DUR041 had worked as a cook and crew member on fishing boats for one year.[1274]



DUR041 was at home with his mother when a friend came to his house and told him that the captain wanted to see him. He had worked with the captain one time before. The captain offered him 5 million rupiah [A$530 equivalent] to be a crew member on a boat that would be going to Australia. He was paid the money that night and gave it to his mother. He accompanied the captain to the harbour the following night and they got into a small boat to travel out to a larger boat. One hour after getting on the larger boat, the passengers came on board via smaller vessels out at sea.[1275]



During the journey, DUR041 was responsible for preparing the food for the crew and passengers.[1276] He did not know that he would be the cook before he got on the boat.[1277] There were initially seven crew on board the boat, but three of the crew members departed via a smaller vessel the night before the boat was intercepted.[1278]



DUR041 was not aware of the difference between Indonesian and Australian waters but he knew that boats monitor the border. He did not know that it is illegal to travel from Indonesia to Australia without travel documents.[1279]



March 2010



On 28 March 2010, DUR041 is apprehended in Australian waters by Australian authorities. He is one of four Indonesian crew members on board a SIEV carrying 36 asylum seekers to Australia.[1280]



DUR041 remains on the Australian Navy ship for three days before he is taken to Christmas Island for processing and transferred into DIAC custody.[1281]



April 2010



On 2 April 2010, DUR041 states during an interview with DIAC [1282] that his date of birth is 24 August 1999, as this is what he was told by his parents.[1283] This would make him 11 years old.



On 5 April 2010, DUR041 is transferred from Christmas Island to Northern Immigration Detention Centre (Berrimah Accommodation) in Darwin.[1284]



On 15 April 2010, AFP officers seek DUR041’s consent to perform a wrist x-ray based on his earlier claim that he is not yet an adult. He is cautioned and given a copy of his rights in Bahasa Indonesia.[1285] Both DUR041 and an independent adult from Life Without Barriers give consent for the procedure,[1286] and an x-ray of his left wrist is taken at Northern Territory Medical Imaging.[1287]



DUR041 says that he was aware the x-ray was to determine his age.[1288]



6 May 2010



A Criminal Justice Stay Certificate is issued which states that DUR041’s date of birth is 24 August 1999.[1289]



September 2010



On 8 September 2010, an internal DIAC email attaching a list of minor crew in detention states that a DIAC case manager is satisfied that DUR041 is under 15 years old and should be removed.[1290]



On 11 September 2010, Corrective Services NSW contact the AFP Darwin Office and request DUR041’s x-ray information as he has informed them that he is only 11 years old.[1291] The AFP provided Corrective Services NSW with the x-ray report for DUR041.[1292]



On 29 September 2010, a Statement of Material Facts is prepared by the AFP which states that DUR041 told the AFP that he was aware that the wrist x-ray results indicated that he was 19 years old. It states that DUR041 did not believe that he was this old as his mother and father told him he was born in 1999.[1293]



On 30 September 2010, an internal DIAC email expresses concern about DUR041’s age and his transfer into AFP custody to face charges as an adult. It states ‘I know that the AFP’s wrist x-ray indicates this client “approximates 19” but our information is that he is likely to be under 15’.[1294]



October 2010



On 4 October 2010, an internal DIAC email notes that ‘the AFP are insistent that [DUR041] is over 18 and intend to charge him as an adult. ... [T]he indications from the AFP are that they won’t discuss options for this client.’[1295]



On 6 October 2010, DIAC informs the AFP that DIAC age assessment officers do not consider DUR041] to be over 18 years old, and consider it likely that he is between 14 to 15 years old. They also tell the AFP that DUR041 says his mother has a birth certificate and that he will try to obtain a copy.[1296]



On 7 October 2010, DUR041 is formally charged as an adult.[1297] He is transferred to Silverwater Correctional facility.[1298]



On 8 October 2010, DUR041 appears before Central Local Court. Bail is not applied for and is formally refused. The Magistrate orders that DUR041 is to be kept with at least one other crew member for company, and the matter is adjourned for an age determination hearing on 1 November 2010.[1299]



The same day, the defence emails the Office of the CDPP querying whether the AFP have any way of confirming DUR041’s date of birth. The defence draws attention to the brief medical report which refers to an ‘estimate of an approximate age’ and says that this ‘is less than satisfactory when the result is the possible detention of a child in an adult gaol’. The defence also says that DUR041 did not look 18 years old.[1300]



Later that day, an internal Office of the CDPP email notes, ‘I am concerned about this one. The solicitors here say that he would pass for 15. Where we have a borderline case of “approximately 19”, I’m wondering whether we should press on or send him back.’[1301] This is followed by an email which states that in matters where there has been some doubt about the age, the Office of the CDPP has ‘ensured that Corrective Services were aware of the issue’.[1302]



On 11 October 2010, an internal Office of the CDPP email notes the concerns raised by Legal Aid and recommends following up with the AFP. It says ‘[a]lso ask (though we know the answer) whether records may be available from Indonesia. The tone to take is that this is of genuine concern (because it is), and that we are not being dismissive of the concerns of [Legal Aid]’.[1303]



On 14 October 2010, Corrective Services NSW again contact the AFP enquiring about DUR041’s age as he is continuing to claim that he is a child. The AFP advise that ‘it was the opinion of the AFP that the earlier x-ray analyses was [accurate] and that [DUR041] was born no later than 1991 and that the only reason than a expert witness statement was being obtained was to satisfy NSW Courts’.[1304]



On 22 October 2010, an expert report from Dr Vincent Low states that DUR041 is ‘over 18 years of age, and close to reaching skeletal maturity age of 19 years’. It notes that the bones in his wrist have not fully fused.[1305]



On 29 October 2010, an Office of the CDPP file note from a conversation with the defence records real concern about the applicability of the GP Atlas to people from different ethnic backgrounds. The defence say that they do not accept the expert report from Dr Low and are seeking funding from Legal Aid to obtain their own expert report.[1306]



The same day, DIAC sends the formal report from DIAC’s age assessment interview of DUR041 to the AFP and the Office of the CDPP.[1307] It states that based on his physical appearance, demeanour, behaviour, education and family history, DIAC believes that DUR041 is probably older than 11 years but he is not over the age of 18.[1308] Both the CDPP and AFP take issue with the relevance of the report.[1309]



November 2010



On 1 November 2010, an officer from the Office of the CDPP tells the AFP that he feels the expert witness report and DIAC age assessment report are likely to create enough doubt for the court to have it err on the side of caution and consider DUR041 as under 18 years of age.[1310]



On 2 November 2010, the Office of the CDPP ask the AFP for their view of DUR041’s matter. An AFP officer states that the AFP would:

seek to return all people that test to 18 years, as part of the initial testing process, unless there is exceptional circumstances. In this case [DUR041] tested at 19, the expert report details him as over 18. There are no exceptional circumstances with this individual.[1311]

He also states that the DIAC age assessment report is ‘questionable as to its conclusions’, and:

the outcomes now potentially mean that any test of 19 (any adult) through the x-ray process the prosecution can be crippled by the DIAC pilot assessment that has little academic rigour or foundation for the conclusions made. ... This current DIAC pilot process potentially raises risks for the government particularly to their claim at being tough on people smugglers.[1312]

On 21 November 2010, an internal Office of the CDPP email recommends taking a cautious approach in cases where a wrist x-ray shows a person’s wrist plates are not completely fused and that these individuals should be treated as juveniles.[1313]

On 23 November 2010, an Office of the CDPP minute is sent to the Commonwealth Director of Public Prosecutions recommending withdrawal of the charges against DUR041. It states that there is a possibility that DUR041 is under 18 years of age due to the standard deviations available when comparing chronological and skeletal age.[1314]



On 30 November 2010, charges against DUR041 are withdrawn and he is placed in DIAC custody.[1315]



3 December 2010



DUR041 returns home to Indonesia. Since first claiming to be a child, DUR041 has spent 188 days in immigration detention and 57 days in an adult prison.

^Top


[1074] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1075] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1076] Statement of material facts, AFP, 31 March 2010 (CDPP document 026.0031).

[1077] Statement of material facts, CDPP, 30 June 2010 (CDPP document 026.0190).

[1078] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1079] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1080] Statement of material facts, CDPP, 30 June 2010 (CDPP document 026.0190).

[1081] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1082] Statement of material facts, AFP, 31 March 2010 (CDPP document 026.0031).

[1083] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1084] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 20 January 2010 (AFP document 2); Consent to carry out a prescribed procedure (wrist x-ray) – independent adult, AFP, 20 January 2010 (AFP document 2); [Radiologist], Medical opinion, Royal Darwin Hospital, 28 January 2010 (CDPP document 026.0029).

[1085] Transcript of taped record of interview, 20 January 2010 (CDPP document 026.0300).

[1086] Criminal Justice Stay Certificate, AGD, 25 January 2010 (AFP document 4).

[1087] [Radiologist], Medical report, Royal Darwin Hospital, 28 January 2010 (CDPP document 026.0029).

[1088] [Radiologist], Medical report, Royal Darwin Hospital, 28 January 2010 (CDPP document 026.0029).

[1089] Transcript of taped record of interview, 20 January 2010 (CDPP document 026.0300).

[1090] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1091] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1092] CDPP Perth Office, File Note, 22 September 2010 (CDPP document 026.0419).

[1093] Transcript of taped record of interview, AFP, 30 March 2010 (AFP document 6).

[1094] Prosecution notice, Magistrates Court of Western Australia, AFP, 29 March 2010 (AFP document 5); Federal Agent, AFP, Email to Legal Officer, CDPP, 30 March 2010 (CDPP document 026.0588).

[1095] Interview with Ali Jasmin, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1096] Indictment, District Court at Perth, CDPP, 2 July 2010 (CDPP document 027.0003).

[1097] Transcript of Proceedings, R v Ali Jasmin (District Court of Western Australia, Commissioner Gething, 30 July 2010) (CDPP document 026.0452).

[1098] Legal Officer, CDPP Perth Office, Email to Dr Vincent Low, 30 July 2010 (CDPP document 026.0491); Senior Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP Perth Office, 2 August 2010 (CDPP document 026.0470).

[1099] Senior Legal Officer, CDPP Perth Office, Letter to Federal Agents, AFP Perth Office, 2 August 2010 (CDPP document 026.0486).

[1100] Transcript of Proceedings, R v Ali Jasmin (District Court of Western Australia, Commissioner Gething, 6 August 2010) (CDPP document 026.0449).

[1101] Officer, DIAC, Email to Legal Officers, CDPP Perth Office, 24 August 2010 (CDPP document 026.0434).

[1102] Senior Legal Officer, CDPP Perth Office, Email to DIAC Officer, 24 August 2010 (CDPP document 026.0434).

[1103] Officer, DIAC, Email to Legal Officers, CDPP Perth Office, 24 August 2010 (CDPP document 026.0444).

[1104] Intelligence Analyst, Department of Corrective Services Western Australia, Email to Returns and Removals Manager, DIAC, 9 September 2010 (DIAC document mail39646221).

[1105] Federal Agent, AFP, Email to Senior Legal Officer, CDPP Perth Office, 22 September 2010 (CDPP document 026.0410).

[1106] An. Head of Eastern Indonesian Police, Directorate of Intelligence and Security, The Republic of Indonesia National Police Force Eastern Indonesia, Fax to AFP Liaison Officer, Australian Consul, 12 October 2010 (CDPP document 026.0348).

[1107] An. Head of Eastern Indonesian Police, Directorate of Intelligence and Security, The Republic of Indonesia National Police Force Eastern Indonesia, Fax to AFP Liaison Officer, Australian Consul, 12 October 2010 (CDPP document 026.0348).

[1108] Officer for Director, CDPP Perth Office, Letter to Counsel for defence, 18 October 2010 (CDPP document 026.0362).

[1109] Federal Agent, AFP, Email to Legal Officer, CDPP, 20 October 2010 (CDPP document 026.0347).

[1110] Federal Agent, AFP, Email to Principal Legal Officer, CDPP Perth Office, 24 November 2010 (CDPP document 026.0153).

[1111] Transcript of Proceedings, The Queen v A J (District Court of Western Australia, Keen DCJ, 8 December 2010) (CDPP document 029.0019), p 72.

[1112] R v Jasmin [2010] WADC 189, [97].

[1113] Transcript of Proceedings, The Queen v A J (District Court of Western Australia, Keen DCJ, 22 December 2010) (CDPP document 026.0067), p 106.

[1114] AJ v The Queen [2011] WASCA 166.

[1115] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP, Attorney-General, 16 March 2012.

[1116] Channel Ten Television, ‘Indonesian minors in adult Australian prisons’, The Project, 16 April 2012. At http://theprojecttv.com.au/video.htm?movideo_p=39696&movideo_m=178563 (viewed 9 July 2012).

[1117] See, for example, AAP, ‘Jailed Indonesian boy: Greens urge inquiry’, Sydney Morning Herald, 19 April 2012. At http://news.smh.com.au/breaking-news-national/jailed-indonesian-boy-greens-urge-inquiry-20120419-1x8sm.html (viewed 9 July 2012); Project SafeCom Inc, ‘Gillard on Ali Jasmin: wooden, stubborn, stupid and dumb’ (Media release, 19 April 2012). At http://www.safecom.org.au/news-1904-2012.htm (viewed 9 July 2012); D Syofyan, ‘The tragedy of Indonesia’s international diplomacy’, The Jakarta Post, 5 May 2012. At http://www.thejakartapost.com/news/2012/05/05/the-tragedy-indonesia-s-international-diplomacy.html (viewed 9 July 2012); M Morrison, ‘Time to rethink Australian policies’, The Jakarta Post, 5 May 2012. At http://www.thejakartapost.com/news/2012/05/05/time-rethink-australian-policies.html (viewed 9 July 2012); R Taylor, ‘Sinking in rhetoric’, The West Australian, 5 May 2012. At http://au.news.yahoo.com/thewest/a/-/latest/13609403/sinking-in-rhetoric/ (viewed 9 July 2012).

[1118] Hon N Roxon MP, Attorney-General, ‘Initial results of people smuggling convictions review’ (Media release, 17 May 2012). At http://www.attorneygeneral.gov.au/Media-releases/Pages/2012/Second%20Quarter/17-May-2012---Initial-results-of-people-smuggling-convictions-review.aspx (viewed 9 July 2012).

[1119] N O’Brien, ‘He was 13 years old when Australia locked him in an adult prison for people smuggling’, Sydney Morning Herald, 20 May 2012. At http://www.smh.com.au/national/he-was-13-years-old-when-australia-locked-him-in-an-adult-prison-for-people-smuggling-20120519-1yxfc.html (viewed 9 July 2012); H MacDonald, ‘Ali Jasmin comes home’, The Global Mail, 24 May 2012. At http://www.theglobalmail.org/feature/ali-jasmin-comes-home/249/ (viewed 9 July 2012).

[1120] Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 8; Statement of material facts, CDPP, 18 May 2010 (CDPP document 022.0002).

[1121] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012; Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 8–9.

[1122]Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 11; Statement of material facts, CDPP, 18 May 2010 (CDPP document 022.0002).

[1123] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1124] Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 11.

[1125] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1126] Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 11.

[1127] Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 11.

[1128] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1129] Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 11.

[1130] Statement of [DIAC Detention Operations Officer], AFP, 26 May 2010 (CDPP document 025.0184), p 9.

[1131] Entry interview, DIAC, 12 January 2010 (CDPP document 021.0182), p 3.

[1132] Part 1C Caution and rights – Bahasa (Indonesia), AFP, 21 January 2010 (CDPP document 004.0321).

[1133] Audio recording of wrist x-ray consent procedure. AFP Response to draft report, 6 July 2012.

[1134] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 21 January 2010 (CDPP document 004.0326); Consent to carry out a prescribed procedure (wrist x-ray) – independent adult, AFP, 21 January 2010 (CDPP document 004.0324); Consent to release of patient medical information, AFP, 21 January 2010 (CDPP document 004.0322).

[1135] Criminal Justice Stay Certificate, AGD, 25 January 2010 (AFP document 2).

[1136] Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 6; Medical opinion, 28 January 2010 (CDPP document 022.0558).

[1137] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012; Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 20.

[1138] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1139] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1140] Transcript of taped record of interview, AFP, 17 March 2010 (AFP document 6), p 9.

[1141] Prosecution notice, Magistrates Court of Western Australia, AFP, 17 March 2010 (AFP document 5).

[1142] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1143] Affidavit of [Senior Legal Officer, CDPP Perth Office], District Court of Western Australia, 15 April 2011 (CDPP document 022.0216), p 2.

[1144] Affidavit of [Senior Legal Officer, CDPP Perth Office], District Court of Western Australia, 15 April 2011 (CDPP document 022.0216), p 2.

[1145] Affidavit of [Senior Legal Officer, CDPP Perth Office], District Court of Western Australia, 15 April 2011 (CDPP document 022.0216), p 2.

[1146] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1147] Affidavit of [Senior Legal Officer, CDPP Perth Office], District Court of Western Australia, 15 April 2011 (CDPP document 022.0216), p 2.

[1148] Senior Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP Perth Office, 3 September 2010 (CDPP document 022.0591).

[1149] Intelligence Analyst, Department of Corrective Services Western Australia, Email to Returns and Removals Manager, DIAC, 9 September 2010 (DIAC document mail39646221).

[1150] Senior Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP, 13 October 2010 (CDPP document 022.0585); Dr Vincent Low, Expert medical report, AFP, 19 October 2010 (CDPP document 004.0314).

[1151] Dr Vincent Low, Expert medical report, AFP, 19 October 2010 (CDPP document 004.0314), p 2.

[1152] Counsel for defence, Fax to Dr Vincent Low, 21 October 2010 (CDPP document 004.0334).

[1153] Officer for Director, CDPP, Instructions to Counsel (CDPP document 004.0006).

[1154] Affidavit of [Senior Legal Officer, CDPP Perth Office], District Court of Western Australia, 15 April 2011 (CDPP document 022.0216), p 4.

[1155] Transcript of Proceedings, The Queen v [OSB051] and RMA (Magistrates Court of Western Australia, Magistrate Calder, 16 November 2010) (CDPP document 022.0383), p 13.

[1156] Transcript of Proceedings, Police v [OSB051] and RMA (Magistrates Court of Western Australia, Magistrate Calder, 3 December 2010) (CDPP document 022.0079), pp 7–8.

[1157] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1158] Acting Senior Assistant Director, CDPP Perth Office, Minute to Deputy Director for Fast Track Indictment, CDPP Perth Office, 3 March 2011 (CDPP document 069.0219).

[1159] Deputy Director, CDPP Perth Office, Signed Fast Track Indictment to Acting Senior Assistant Director, CDPP Perth Office, 8 March 2011 (CDPP document 069.0219).

[1160] Dr James Christie, Medical opinion, Defence, 14 March 2011 (CDPP document 022.0163).

[1161] Counsel for defence, Letter to Senior Legal Officer, CDPP Perth Office, 17 March 2011 (CDPP document 022.0162).

[1162] Transcript of Proceedings, The Queen v [OSB051] (District Court of Western Australia, Martino CJDC, 25 March 2011) (CDPP document 022.0186), p 2.

[1163] Transcript of Proceedings, R v [OSB051] (District Court of Western Australia, Wisbey DCJ, 21 June 2011) (CDPP document 022.0055).

[1164] Acting Senior Assistant Director, CDPP Perth Office, Email to Senior Assistant Director, CDPP Perth Office, 2 November 2011 (CDPP document 069.0102).

[1165] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1166] Professor Tim Cole, Expert report, Defence, 14 October 2011 (CDPP document 022.0091).

[1167] Senior Assistant Director, CDPP Perth Office, Memorandum to Deputy Director, CDPP Perth Office, 2 November 2011 (CDPP document 069.0106).

[1168] Principal Legal Officer, CDPP Perth Office, Minute to Senior Assistant Director, CDPP Perth Office, 2 November 2011 (CDPP document 069.0079).

[1169] Senior Assistant Director, CDPP Perth Office, Memo to Deputy Director, CDPP Perth Office, 2 November 2011 (CDPP document 069.0106).

[1170] Principal Legal Officer, CDPP Perth Office, Email to Counsel for defence, 2 November 2011 (CDPP document 069.0083).

[1171] Counsel for defence, Fax to Criminal Registry, District Court of Western Australia, 3 November 2011 (CDPP document 069.0059).

[1172] Transcript of Proceedings, The Queen v [OSB051] (District Court of Western Australia, Staude DCJ, 10 November 2011) (CDPP document 069.0009), p 41.

[1173] Transcript of Proceedings, The Queen v [OSB051] (District Court of Western Australia, Staude DCJ, 10 November 2011) (CDPP document 069.0009), p 56.

[1174] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1175] Hon C Branson QC, President, Australian Human Rights Commission, Correspondence to Hon N Roxon MP, Attorney-General, 16 March 2012.

[1176] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1177] Interview with OSB051, Australian Human Rights Commission, Albany Regional Prison, 26 April 2012.

[1178] Hon N Roxon MP, Attorney-General, ‘Initial results of people smuggling convictions review’ (Media release, 17 May 2012). At http://www.attorneygeneral.gov.au/Media-releases/Pages/2012/Second%20Quarter/17-May-2012---Initial-results-of-people-smuggling-convictions-review.aspx (viewed 9 July 2012).

[1179] Transcript of taped record of interview, AFP, 7 July 2010 (AFP document 7), p 4.

[1180] Entry interview, DIAC, 10 January 2010 (AFP document 1), p 11.

[1181] Senior Legal Officer, CDPP Perth Office, Minute to Senior Assistant Director, CDPP Perth Office, 28 September 2011 (CDPP document 317.0245), p 14.

[1182] Entry interview, DIAC, 10 January 2010 (AFP document 1), p 16.

[1183] Senior Legal Officer, CDPP Perth Office, Minute to Senior Assistant Director, CDPP Perth Office, 28 September 2011 (CDPP document 317.0245), p 8.

[1184] Statement of material facts, CDPP, 17 July 2011 (CDPP document 173.0251).

[1185] Entry interview, DIAC, 10 January 2010 (AFP document 1), p 14.

[1186] Senior Legal Officer, CDPP Perth Office, Minute to Senior Assistant Director, CDPP Perth Office, 28 September 2011 (CDPP document 317.0245), p 5.

[1187] Statement of material facts, CDPP, 17 July 2011 (CDPP document 173.0251).

[1188] Entry interview, DIAC, 10 January 2010 (AFP document 1), pp 3, 7.

[1189] Transcript of taped record of interview, AFP, 21 January 2010 (CDPP document 173.0458).

[1190] Part 1C Caution and rights – Bahasa (Indonesia), AFP, 20 January 2010 (CDPP document 315.0246).

[1191] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 21 January 2010 (AFP document 4); Consent to carry out a prescribed procedure (wrist x-ray) – independent adult, AFP, 21 January 2010 (AFP document 4).

[1192] Senior Legal Officer, CDPP Perth Office, Minute to Director, CDPP, 16 November 2011 (CDPP document 317.0086), p 2.

[1193] Federal Agent, AFP, Email to Senior Legal Officer, CDPP Perth Office, 22 August 2011 (CDPP document 251.0014), p 6.

[1194] Transcript of taped record of interview, AFP, 7 July 2010 (AFP document 7), pp 5, 7.

[1195] Senior Legal Officer, CDPP Perth Office, Minute to Director, CDPP, 16 November 2011 (CDPP document 317.0086), p 4.

[1196] Senior Legal Officer, CDPP Perth Office, Minute to Senior Assistant Director, CDPP Perth Office, 28 September 2011 (CDPP document 317.0245), p 6.

[1197] Prosecution notice, Magistrates Court of Western Australia, AFP, 6 October 2010 (AFP document 10).

[1198] Senior Legal Officer, CDPP Perth Office, Email to Legal Aid Western Australia, 18 January 2011 (CDPP document 315.0300).

[1199] Deputy Director, CDPP Perth Office, Email to Legal Officers, CDPP Perth Office, 12 April 2011 (CDPP document 315.0275).

[1200] Dr Vincent Low, Medical opinion, AFP, 26 April 2011 (CDPP document 315.0259).

[1201] Dr Vincent Low, Expert medical report, AFP, 26 April 2011 (CDPP document 181.0085).

[1202] Senior Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP, 20 May 2011 (CDPP document 315.0237).

[1203] Statement of material facts, CDPP, 17 July 2011 (CDPP document 173.0251).

[1204] Senior Legal Officer for Director, CDPP Perth Office, Letter to Counsel for defence, 25 July 2011 (CDPP document 316.0264).

[1205] Federal Agent, AFP, Email to Senior Legal Officer, CDPP Perth Office, 10 August 2011 (CDPP document 251.0014), p 8.

[1206] Acting Senior Assistant Director, CDPP Perth Office, Email to Senior Legal Officer, CDPP Perth Office, 23 August 2011 (CDPP document 316.0020).

[1207] Federal Agent, AFP, Email to Senior Legal Officer, CDPP Perth Office, 1 September 2011 (CDPP document 251.0014), p 4.

[1208] Senior Legal Officer, CDPP Perth Office, Email to Federal Agent, AFP, 22 September 2011 (AFP document 23).

[1209] Senior Legal Officer, CDPP Perth Office, Minute to Senior Assistant Director, CDPP Perth Office, 28 September 2011 (CDPP document 317.0245), p 1.

[1210] Officer, CDPP Head Office, Email to Senior staff, CDPP, 16 November 2011 (CDPP document 056.0006).

[1211] Senior Legal Officer, CDPP Perth Office, Minute to Director, CDPP, 16 November 2011 (CDPP document 317.0086), p 7.

[1212] Legal Officer, CDPP Perth Office, Minute to Director, CDPP, 21 November 2011 (CDPP document 323.0926).

[1213] Clinical Psychologist, Psychological Assessment Report on [INN012], Defence, 28 June 2011 (CDPP document 240.0238), pp 2–3.

[1214] Clinical Psychologist, Psychological Assessment Report on [INN012], Defence, 28 June 2011 (CDPP document 240.0238), p 4.

[1215] Senior Lecturer, University of New South Wales, Expert Certificate in the matter of CDPP v [INN012], Defence, 6 July 2011 (CDPP document 242.0457), p 4.

[1216] Independent adult, Life without Barriers, File Note, 16 June 2010 (CDPP document 255.0250).

[1217] Senior Lecturer, University of New South Wales, Expert Certificate in the matter of CDPP v [INN012], 6 July 2011 (CDPP document 242.0457), p 4.

[1218] Independent adult, Life without Barriers, File Note, 16 June 2010 (CDPP document 255.0250).

[1219] Independent adult, Life without Barriers, File Note, 16 June 2010 (CDPP document 255.0250).

[1220] Federal Agent, AFP, Case Note, 17 June 2010 (AFP document 5).

[1221] Solicitor, Defence, Letter to Legal Officer, CDPP Sydney Office, 8 July 2011 (CDPP document 240.0233).

[1222] Legal Officer, CDPP Sydney Office, Minute to Senior Assistant Director, CDPP Sydney Office, 18 July 2011 (CDPP document 323.0851).

[1223] Legal Officer, CDPP Sydney Office, Minute to Senior Assistant Director, CDPP Sydney Office, 2 June 2011 (CDPP document 241.0144).

[1224] Legal Officer, CDPP Sydney Office, File Note, 20 January 2011 (CDPP document 241.0358).

[1225] Legal Officer, CDPP Head Office, Minute to Director, CDPP Head Office, 7 November 2011 (CDPP document 242.0066); Legal Officer, CDPP Sydney Office, Email to Counsel for defence, 18 July 2011 (CDPP document 242.0594).

[1226] Principal Legal Officer, CDPP Sydney Office, File Note, 20 January 2011 (CDPP document 241.0373); Principal Legal Officer, CDPP Sydney Office, Email to Federal Agent, AFP, 29 March 2011 (CDPP document 241.0198).

[1227] Part 1C Caution and rights – Bahasa (Indonesia), 1 April 2010 (AFP document 2).

[1228] Consent to carry out a prescribed procedure (wrist x-ray) – individual, AFP, 1 April 2010 (CDPP document 241.0363); Consent to carry out a prescribed procedure (wrist x-ray) – independent adult, AFP, 1 April 2010 (AFP document 1).

[1229] Federal Agent, AFP People Smuggling Strike Team, Email to Legal Officer, CDPP Sydney Office, 20 January 2011 (CDPP document 241.0365); Officer for Director, CDPP Sydney Office, Letter to Defence, 27 January 2011 (CDPP document 241.0343); [Radiologist], Medical report, AFP, 1 April 2010 (CDPP document 241.0360).

[1230] Criminal Justice Stay Certificate, AGD, 6 April 2010 (AFP document 8).

[1231] Federal Agent, AFP Sydney Office, Case Note, 17 June 2010 (AFP document 5).

[1232] Edwina Lloyd, Submission 29, p 3.

[1233] Independent adult, Life without Barriers, File Note, 16 June 2010 (CDPP document 255.0250); Federal Agent, AFP Sydney office, Case Note, 17 June 2010 (CDPP document 255.0248).

[1234] Legal Officer, CDPP Sydney Office, Minute to Senior Assistant Director, CDPP Sydney Office, 2 June 2011 (CDPP document 241.0144).

[1235] Federal Agent, AFP Sydney Office, Case Note, 17 June 2010 (CDPP document 255.0248); Special Member, AFP Sydney Office, Letter to Deputy Director, CDPP Sydney Office, 26 November 2010 (CDPP document 241.0423); Transcript of Proceedings, R v [INN012] (Bankstown Local Court, Magistrate Still, 15 August 2011) (CDPP document 240.0070), p 2.

[1236] Clinical Psychologist, Psychological Assessment Report on [INN012], Defence, 28 June 2011 (CDPP document 240.0238), p 6.

[1237] Clinical Psychologist, Psychological Assessment Report on [INN012], Defence, 28 June 2011 (CDPP document 240.0238), p 5.

[1238] Federal Agent, AFP Sydney Office, Case Note, 15 October 2010 (AFP document 7).

[1239] Special Member, AFP Sydney Office, Letter to Deputy Director, CDPP Sydney Office, 26 November 2010 (CDPP document 241.0423).

[1240] Clinical Psychologist, Psychological Assessment Report on [INN012], Defence, 28 June 2011 (CDPP document 240.0238), p 6.

[1241] Court Instruction Sheet, CDPP, 13 December 2010 (CDPP document 241.0443).

[1242] Federal Agent, AFP Sydney Office, Case Note, 15 March 2011 (AFP document 9).

[1243] Court Instruction Sheet, CDPP, 20 December 2010 (CDPP document 241.0441).

[1244] Legal Officer, CDPP Sydney Office, Email to Special Member, AFP Sydney Office, 10 January 2011 (CDPP document 241.0410).

[1245] Legal Officer, CDPP Sydney Office, File Note, 10 January 2011 (CDPP document 241.0417).

[1246] Legal Officer, CDPP Sydney Office, Email to Special Member, AFP, 10 January 2011 (CDPP document 241.0390).

[1247] [Radiologist], Medical opinion, AFP, 2 February 2011 (CDPP document 240.0300).

[1248] Court result sheet, CDPP Sydney Office, 7 February 2011 (CDPP document 241.0281).

[1249] Court result sheet, CDPP Sydney Office, 7 March 2011 (CDPP document 241.0212).

[1250] Special Member, AFP People Smuggling Strike Team, Email to Principal Legal Officer, CDPP Sydney Office, 29 March 2011 (CDPP document 240.0301).

[1251] Dr Vincent Low, Expert medical report, AFP, 30 May 2011 (CDPP document 241.0152).

[1252] Court result sheet, CDPP Sydney Office, 6 June 2011 (CDPP document 241.0122).

[1253] Federal Agent, AFP Sydney Office, Case Note, 16 June 2011 (AFP document 14).

[1254] Federal Agent, AFP Sydney Office, Case Note, 7 July 2011 (AFP document 15).

[1255] Solicitor, Defence, Letter to Legal Officer, CDPP Sydney Office, 8 July 2011 (CDPP document 240.0233).

[1256] [Radiologist], Children’s Hospital Westmead, Expert Certificate in the matter of [INN012], Defence, 29 April 2011 (CDPP document 241.0017).

[1257] Senior Lecturer, University of New South Wales, Expert Certificate in the matter of CDPP v [INN012], Defence, 6 July 2011 (CDPP document 242.0457), p 3.

[1258] Clinical Psychologist, Psychological Assessment Report on [INN012], Defence, 28 June 2011 (CDPP document 240.0238), p 9.

[1259] Timeline for [INN012], CDPP (CDPP document 240.0004).

[1260] Counsel for defence, Letter to Legal Officer, CDPP Sydney Office, 8 July 2011 (CDPP document 240.0233).

[1261] Legal Officer, CDPP Sydney Office, Email to Acting Principal Legal Officer, CDPP, 8 July 2011 (CDPP document 241.0006).

[1262] Legal Officer, CDPP Sydney Office, Minute to Senior Assistant Director, CDPP Sydney Office, 18 July 2011 (CDPP document 323.0851).

[1263] Team Leader, AFP Sydney Office, Email to Legal Officer, CDPP Sydney Office, 18 July 2011 (CDPP document 242.0579).

[1264] Legal Officer, CDPP Sydney Office, Minute to Senior Assistant Director, CDPP Sydney Office, 18 July 2011 (CDPP document 323.0851), p 6.

[1265] Transcript of Proceedings, R v [INN012] (Bankstown Local Court, Magistrate Still, 15 August 2011) (CDPP document 240.0070), p 53.

[1266] Legal Officer, CDPP Sydney Office, Minute to Director, CDPP, 7 November 2011 (CDPP document 323.0834).

[1267] Legal Officer, CDPP Sydney Office, Minute to Director, CDPP, 7 November 2011 (CDPP document 242.0066).

[1268] Edwina Lloyd, Submission 29, p 7; Acting Senior Legal Officer, CDPP Sydney Office, Minute to Director, CDPP, 2 November 2011 (CDPP document 240.0015), p 2.

[1269] Acting Senior Legal Officer, CDPP Sydney Office, Minute to Director, CDPP, 2 November 2011 (CDPP document 240.0015), p 1.

[1270] Acting Principal Legal Officer, CDPP Sydney Office, File Note, 2 November 2011 (CDPP document 240.0161).

[1271] Nolle Prosequi, District Court of New South Wales, CDPP, 7 November 2011 (CDPP document 242.0029).

[1272] Edwina Lloyd, Submission 29, p 5.

[1273] Age assessment interview report, DIAC, 6 October 2010 (AFP document 15).

[1274] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), p 8.

[1275] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), pp 4, 9.

[1276] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), p 6.

[1277] Case Note – Initial assessment of admissibility of brief of evidence, CDPP (CDPP document 003.0189).

[1278] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), p 5.

[1279] Case Note – Initial assessment of admissibility of brief of evidence, CDPP (CDPP document 003.0189).

[1280] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), pp 2, 5.

[1281] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), p 3.

[1282] Biodata form, DIAC, 2 April 2010 (DIAC document 20100402).

[1283] Acting Legal Officer, CDPP Sydney Office, Minute to Director, CDPP Sydney Office, 23 November 2010 (CDPP document 003.0045).

[1284] Information provided by DIAC to the Commission, 17 February 2012.

[1285] Part 1C Caution and rights – Bahasa (Indonesia), AFP, 15 April 2010 (AFP document 3).

[1286] Consent to carry out a prescribed procedure (wrist x-ray) – individual, 15 April 2010 (AFP document 5); Consent to carry out a prescribed procedure (wrist x-ray) – independent adult, 15 April 2010 (AFP document 5).

[1287] Statement of [Federal Agent], AFP Darwin Office, 28 September 2010 (AFP document 8).

[1288] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), p 10.

[1289] Criminal Justice Stay Certificate, AGD, 6 May 2010 (AFP document 7).

[1290] Immigration Officer, DIAC Canberra Office, Email to Immigration Officer, DIAC Canberra Office, 9 September 2010 (DIAC document mail39646801).

[1291] Federal Agent, AFP Perth Office, Case Note, 12 October 2010 (AFP document 12).

[1292] Federal Agent, AFP Perth Office, Case Note, 12 October 2010 (AFP document 12).

[1293] Statement of material facts, AFP, 29 September 2010 (CDPP document 003.0175), p 10.

[1294] Acting Principal Advisor, DIAC, Email to Immigration Officer, DIAC, 30 September 2010 (DIAC document mail39646739).

[1295] Acting Principal Advisor, DIAC, Email to Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, 4 October 2010 (DIAC document mail39646176).

[1296] Acting Principal Advisor, DIAC, Email to Federal Agent, AFP, 6 October 2010 (DIAC document mail39642130).

[1297] Federal Agent, AFP, File Note, 8 October 2010 (AFP document 9).

[1298] Acting Director, Irregular Maritime Arrivals Operations Section, DIAC, Email to Immigration Officer, DIAC, 29 November 2010 (DIAC document mail39646085).

[1299] Federal Agent, AFP, File Note, 8 October 2010 (AFP document 9).

[1300] Counsel for Defence, Email to Legal Officer, Counter Terrorism & People Smuggling Branch, CDPP, 8 October 2010 (CDPP document 003.0138).

[1301] Senior Assistant Director, CDPP, Email to Deputy Director, CDPP, 8 October 2010 (CDPP document 003.0143).

[1302] Senior Assistant Director, CDPP, Email to Deputy Director, CDPP, 8 October 2010 (CDPP document.003.0143).

[1303] Senior Assistant Director, Counter Terrorism and People Smuggling Branch, CDPP, Email to Legal Officer, CDPP, 11 October 2010 (CDPP document 003.0137).

[1304] Federal Agent, AFP Perth Office, Case Note, 14 October 2010 (AFP document 13).

[1305] Dr Vincent Low, Expert medical report, AFP, 22 October 2010 (CDPP document 003.0124).

[1306] Legal Officer, CDPP Sydney Office, File Note, 29 October 2010 (CDPP document 003.0117).

[1307] Acting Principal Advisor, DIAC, Email to Federal Agent, AFP, 29 October 2010 (DIAC document mail 39645997).

[1308] Age assessment interview report, DIAC, 6 October 2010 (CDPP document 003.0064).

[1309] Acting Assistant Secretary, Immigration Intelligence Branch, DIAC, Email to Acting Principal Advisor, DIAC, 31 October 2010 (DIAC document mail 39645997).

[1310] Federal Agent, AFP Perth Office, Case Note, 01 November 2010 (AFP document 19).

[1311] Federal Agent, AFP, Email to Deputy Director, CDPP, 2 November 2010 (CDPP document 003.0104).

[1312] Federal Agent, AFP, Email to Deputy Director, CDPP, 2 November 2010 (CDPP document 003.0104).

[1313] Senior Assistant Director, CDPP, Email to Deputy Director, CDPP, 22 November 2010 (CDPP document 003.0074).

[1314] Acting Legal Officer, CDPP, Minute to Director, CDPP, 23 November 2010 (CDPP document 003.0045).

[1315] Officer for the Director, CDPP Sydney Office, Fax to Court Coordinator, Bankstown Local Court, 29 November 2010 (CDPP document 003.0021).