Marinelli v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 00811

ROBERT MARINELLI	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 12, 13, 14, 15, 18 June 2018
DATE OF JUDGMENT:	20 August 2019
CASE MAY BE CITED AS:	Marinelli v State of Victoria
MEDIUM NEUTRAL CITATION:	[2019] VSC 557

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TORTS – Malicious Prosecution – Elements of the tort – Whether proceedings actuated by an improper purpose – Whether the defendant acted without reasonable and probable cause in prosecuting the plaintiff – A v New South Wales (2007) 230 CLR 500 – Thomas v New South Wales (2008) 74 NSWLR 34.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S Wilson QC with C Truong	Spencer Reyner Law Office
For the Defendant	S Hay with R Gipp	Victorian Government Solicitors’ Office

HIS HONOUR:

Introduction

In 2009, after two motor vehicles collided and were damaged, the owners of both vehicles made claims to AAMI, the insurer of one of the vehicles. Initially AAMI paid the insured owner’s claim, but later denied both claims on the basis the collision was staged, and the insurance claims were fraudulent. In the course of protracted Magistrates’ Court proceedings relating to damage caused in the collision, the owner of the vehicle insured by AAMI, and the person who initially said he was driving it when the collision occurred, admitted the insurance claims were fraudulent. In confessional statements made to Victoria Police, they implicated the plaintiff, Robert Marinelli, as being a party to the fraud.

Criminal proceedings were brought against Mr Marinelli by informant Senior Constable Elise Douglas (‘SC Douglas’) in connection with the fraudulent insurance claims (‘the criminal proceedings’). Mr Marinelli was committed to stand trial, but the charges were later withdrawn by the Director of Public Prosecutions (‘DPP’). Mr Marinelli alleges that SC Douglas acted maliciously and without reasonable and probable cause when she commenced and maintained the criminal proceedings. He claims damages for injury to his credit, character and reputation, and for property and business losses.

SC Douglas is an officer of Victoria Police, and the defendant, State of Victoria (‘the State’), accepts that if Mr Marinelli can make out his claim it will be liable to him pursuant to s 74 of the Victoria Police Act 2013 (Vic).

Mr Marinelli alleged comments made by SC Douglas before and during the criminal proceedings show she did not have an honest belief in his guilt. Further, and in the alternative, he alleged there was no sufficient basis for a belief in his guilt given:

(a) the case against him depended principally on the unreliable and uncorroborated evidence of admitted fraudsters;

(b) the collision could easily, and was more likely to, have occurred without his involvement;

(c) a prudent and cautious investigator would have made further enquiries before commencing the criminal proceedings; and

(d) a prudent and cautious investigator would have obtained legal advice from the DPP or a more senior police prosecutor as to the merits and prospects of the criminal proceedings.

Mr Marinelli alleged that the criminal proceedings were issued and maintained by SC Douglas for one or more of the following improper purposes:

(a) she succumbed to pressure by AAMI and/or its investigator, Mr Wintels, who was a former police officer, to institute and to continue the proceedings;

(b) she succumbed to pressure by a superior officer, being (then) Superintendent Hayes, and from suspected, although unsubstantiated, links between Mr Marinelli and motorcycle gangs; and/or

(c) ill-will, vindictiveness and spite.

The State takes issue with each of Mr Marinelli’s allegations.

Just prior to trial a challenge was made to expert forensic accountant evidence on which Mr Marinelli relied to support his claim for damages. Mr Marinelli accepted the evidence of his expert witness was deficient, and sought to adjourn the trial to remedy the deficiency. I determined to continue with the liability trial, but to adjourn damages issues pending the outcome of the trial.

Relevant authorities and legal principles

In A v State of New South Wales (‘A v NSW’),[1] the majority summarised the elements of malicious prosecution:

For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause.[2]

The first two elements are conceded by the State. For Mr Marinelli to succeed in his claim he must prove that SC Douglas acted maliciously and without reasonable and probable cause when she initiated and maintained the criminal proceedings.[3]

[1](2007) 230 CLR 500 (‘A v NSW’).

[2]Ibid [55].

[3]The burden of proof lies with the plaintiff. See Brown v Hawkes [1891] 2 QB 718, 722; Trobridge v Hardy (1955) 94 CLR 147, 163–165, 174; A v NSW [60].

Malice

In A v NSW the majority observed that ‘malice is a broader concept than ill will or spite, and means an improper purpose’.[4] To constitute malice, the sole or dominant purpose motivating the prosecution ‘must be a purpose other than the proper invocation of the criminal law¾an “illegitimate or oblique motive”’.[5] When a prosecution is initiated by a police officer who has no personal interest in the matter and no personal knowledge of the parties or allegations, ‘the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice’.[6] Their Honours explained:

Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word “malice”...[7]

[4]A v NSW [2].

[5]Ibid [91] (citations omitted).

[6]Ibid [41].

[7]Ibid [55].

A court will not lightly make a finding that a purpose for which a prosecution is instigated constitutes malice. Examples of purposes found to be malicious include prosecutions instigated with the aim of: extorting money, silencing the plaintiff in another proceeding,[8] stopping a civil action brought by the accused against the prosecutor,[9] and punishing the plaintiff for previously giving evidence against the police.[10] These examples illustrate the serious nature of an allegation of malicious prosecution.
[8]Haddrick v Heslop (1848) 12 QB 269.
[9]Springett v The London and South-Western Bank (1885) 1 TLR 611.
[10]Glinski v McIver [1962] AC 726.

Reasonable and probable cause

Even if it is established that a prosecution was initiated or maintained maliciously and the defendant is acquitted:

…an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge.[11]

[11]A v NSW [56].

To establish that a prosecutor acted without reasonable or probable cause, a plaintiff must prove one or both of the following propositions:

(a) the prosecutor did not ‘honestly believe’ the case that was instituted or maintained (subjective aspect);

(b) the prosecutor had no sufficient basis for such a belief (objective aspect).[12]

The majority in A v NSW explained:

The inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it?[13]

[12]Ibid [77].

[13]Ibid [58].

The assessment of whether a prosecution was commenced without reasonable or probable cause must be based on ‘the state of affairs when the prosecution was commenced, or when the prosecutor … is alleged to have maintained the prosecution’, not on material that came to light thereafter.[14] A prosecution can only be retrospectively justified in cases where there is a finding of guilt.
[14]Ibid [59].

Subjective aspect

Where the prosecutor has first-hand knowledge of the facts of a case, the absence of reasonable and probable cause is established if the prosecutor was not persuaded of the accused’s guilt.

Where the prosecutor does not have first-hand knowledge of the facts of a case, the subjective element is established if, when determining whether to prosecute the matter, the prosecutor did not honestly conclude that the material available warranted that course of action.[15]
[15]This is a lesser subjective standard than a belief in guilt. See Thomas v New South Wales (2008) 74 NSWLR 34 [91] (‘Thomas’).

In both circumstances, the assessment is centred on what the prosecutor made of the material available to them.

Objective aspect

In A v NSW, the majority explained:

…the resolution of the (objective question) will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion that may, we do not say must, depend upon the evidence demonstrating that further inquiry should have been made.[16]

However, an absence of reasonable and probable cause cannot be made out merely by showing that further enquires could have been made by the prosecutor. In Herniman v Smith,[17] Lord Atkin said:

[i]t is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause.[18]

[16]A v NSW [85].

[17][1938] AC 305.

[18]Ibid 319.

In Thomas v State of New South Wales (‘Thomas’),[19] in relation to assessment of this element, Gyles AJA said:

The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate’s decision as to committal for trial or a trial judge’s ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules.[20]
[19](2008) 74 NSWLR 34.
[20]Ibid [105] (citations omitted).

Section 140(2) of the Evidence Act

Section 140 of the Evidence Act 2008 (Vic) deals with the standard of proof in civil proceedings:

Civil proceedings—standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.

In NOMv DPP & Ors,[21] the Court of Appeal concluded that the principles in Briginshaw v Briginshaw[22] are relevant to whether the fact-finder has reached a state of actual persuasion in relation to the matter in dispute:

Accepting that the standard of proof expressed in Briginshaw requires actual persuasion on the part of a fact-finder – and that is materially different to an assessment based only on a mere mathematical probability – s 140(2) of the Evidence Act reflects the conceptual principles underpinning that standard. Significantly, nothing was said to cast any doubt on the line of authority to which we have referred that has construed s 140(2) as embracing the principle in Briginshaw. We consider that line of authority plainly correct. In any event, such a view is now so settled that this Court should not now depart from an accepted construction of a uniform legislative provision of the Commonwealth and a number of States.
Accordingly, whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact-finder must satisfy him or herself in proceedings of this nature. Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.[23]

The seriousness of the allegations against SC Douglas, that as a serving police officer she commenced and continued the criminal proceedings acting with malice and without reasonable and probable cause, must be taken into account under s 140 of the Evidence Act 2008 (Vic), and in accordance with the Briginshaw v Briginshaw[24] principles, in considering whether a state of actual persuasion in relation to matters alleged against her has been reached.[25]

[21](2012) 38 VR 618.

[22](1938) 60 CLR 336.

[23]NOM v DPP & Ors (2012) VR 618 [123], [124] (citations omitted).

[24](1938) 60 CLR 336.

[25]Mullett v Nixon & Ors [2016] VSC 512 [23].

Background

Mr Marinelli was a director and shareholder of Ultra Finish Dandenong Pty Ltd, which traded as an auto repair, panel beating, spray painting and towing business operating in Dandenong and Mulgrave under the name Ultra Finish Small Repairs (‘Ultra Finish’). Nick Ectoros was a business partner of Mr Marinelli.

Mark Drew and Jason Hoctor, both panel beaters, were friends for many years. In late 2008 or early 2009 they discussed ‘getting rid of’ Mr Drew’s Holden Crewman utility vehicle (‘the Crewman’). In around late January 2009 Mr Drew delivered the Crewman to Ultra Finish Dandenong, where Mr Hoctor worked as a panel beater.

The insurance claims

On 12 February 2009 Mr Drew lodged a claim in relation to the Crewman with his insurer, AAMI, reporting his vehicle had been damaged in a collision on 11 February 2009, and that Mr Hoctor was the driver. The second vehicle said to be involved in the collision was a BMW convertible owned by Mr Ectoros’ company, Corpstreet Car Sales Pty Ltd (‘the BMW’). Mr Hoctor told AAMI that, at the intersection of Dunlop and Pickering Roads, Mulgrave, he failed to give way to, and collided with, the BMW driven by Mr Ectoros.

AAMI assessed the Crewman as uneconomical to repair, and paid just over $17,000 to the Bank of Queensland for outstanding finance, and a balance of approximately $6,000 to Mr Drew for the remaining value of the vehicle.

On 3 March 2009 Mr Ectoros made a claim with his insurer, Instrat Insurance, in respect of the damage to the BMW. File notes made by Instrat Insurance indicate Mr Ectoros wanted the BMW assessed as a total loss, was unhappy when it was assessed as repairable, and withdrew his claim.

Mr Ectoros then made a claim to Mr Drew’s insurer, AAMI. An AAMI representative’s file note of a discussion with an Instrat Insurance representative on 17 April 2009 reads in part:

Their client (Nick Ectoros) had notified them of the accident and a quote was sent to them for repairs to their vehicle — the original quote that was sent was from Ultra Finish and for an amount of $52,209.54 (panel damage only).
MB [Instrat Insurance] assessor completed an assessment on the car. Assessor authorised repairs to vehicle as follows: panel damage $30,600.54 and unseen mechanical damage between $4–$8k. Total assessment costs at $38,000. Assessor has confirmed that vehicle is not a total loss.
MB received a call from their customer as well as their customer’s business partner Robert Marinelli — neither of the parties were happy with the assessment that had been completed on the vehicle and wanted the vehicle written off.
MB would not agree to writing off the vehicle as not economical — MB have vehicle insured for an agreed value of $121,495, further damages to vehicle did not deem a total loss. Robert advised MB that he will take the vehicle to IVIC. MB offered owners’ the option to organise an assessment through BMW for second opinion and owner did not accept.
Robert Maranelli [sic] requested a cash settlement in lieu of repairs. MB would not consider cash settlement.
Owner advised MB that AAMI has assessed vehicle and declared a total loss — offered payout amount of $94,900. (On a separate occasion Julie from MB had called AAMI to notify us of the assessment that had been completed by them and that they had assessed the car as repairable.)
Julie confirmed that Robert and Nick are part owners of Ultra Finish as well as a mechanical shop — Cencom Mechanical were [sic] the mechanical repairs would have been carried out.

An AAMI claim message enquiry, which appears to record a telephone conversation with Mr Ectoros on 17 April 2009, reads:

When I asked TP [Mr Ectoros] who the registered owner of the TPV [the BMW] was, he said it was registered under his business name ‘Corp Street P/L’.
When I asked TP the name that the finance was under, he said either his business partner’s name ‘Robert Marinelli’, or his business partner’s business name ‘Ultra Finish … something’.

A further claim message enquiry dated 20 April 2009 reads in part:

TP has also lodged claim with TPI [Instrat Insurance], concerned that TP may have been trying to claim twice.
TP director of Ultra Finish.
Accident has occurred 300 metres from Ultra Finish, Mulgrave.
Ultra Finish attempted recovery against us on claim 5254823600 for one of their tow trucks (Advanced Towing).
The tow truck was a T/loss at $41K.
We were successful in court.
Ultra Finish/Advanced Towing now owe us $18K.
We are in the process of executing a warrant to seize property.
TP has a significant prior claims history.
TP also has default for $5K.
IVD [Mr Hoctor] has a concerning claims history.

The claim message enquiry goes on to refer to the three claims previously made by Mr Hoctor, where the vehicles ended up at Ultra Finish after the accidents, and that concerns were sufficiently significant to warrant investigation.

AAMI became concerned about the validity of the claims, and referred them to external agent, Bill Wintels, for investigation. Mr Wintels interviewed Mr Drew, his wife Raelene Drew, Mr Hoctor, and Paul Irving, a manager at Ultra Finish Dandenong. Mr Ectoros declined a request to be interviewed. Mr Drew said he lent the Crewman to Mr Hoctor for three months while he was working in Tasmania. Mr Hoctor said on 11 February 2009 his manager Mr Irving told him to go to Ultra Finish Mulgrave to drop off some tools. He said he chose to drive the Crewman rather than take one of the available loan cars, and that Mr Irving gave him directions because he had not been to Ultra Finish Mulgrave before. He said the collision occurred when he failed to give way to the BMW when he was turning right at the intersection of Dunlop and Pickering Roads, Mulgrave, and that he did not know the driver of the BMW, Mr Ectoros. Mr Irving confirmed he instructed Mr Hoctor to take some tools to Ultra Finish Mulgrave, and that he had to give him directions.

Mr Wintels inspected the collision scene, which was only 300 metres from Ultra Finish Mulgrave. He interviewed a receptionist and spoke to other workers at a nearby business premises which had a view of the collision scene. None of the persons he spoke to witnessed or recalled the collision, and there was no record of the collision in the reception area diary.

AAMI commissioned senior forensic investigator Mr Edgerton to provide a collision investigation and reconstruction. Mr Edgerton examined both vehicles and the collision scene. His report, which is dated 14 May 2009, includes the following analysis:

The damage to the off-side of the subject vehicle (Holden Crewman) is consistent with the damage to the front of the third party vehicle (BMW).
The damage to the driver’s door on the subject vehicle showed that this vehicle was stationary and not moving when the impact took place.
There was no significant horizontal striations within the contact damage on either vehicle, in particular the number plate imprint and indentations on the subject vehicle. This was a clear imprint with no movement apparent in this. The width of the contact damage on the subject vehicle was consistent with the width of the contact damage on the third party vehicle. There was no lateral dislodgment of damaged areas or panels on either vehicle.
The nature of the damage also shows that the third party vehicle was at 90° angle to the off-side of the subject vehicle when the collision occurred.
In a ‘T-bone’ collision, where the target vehicle is moving across the path of the bullet vehicle, there will be distinctive characteristics in the damage to the two vehicles.
The damage to the side of the target vehicle will show striations that will be angled and/or horizontal. There will be tears and/or scrapes that will also be angled and/or horizontal.
There will be dislodgement of the damaged panels in the direction opposite to which the target vehicle is moving.

Mr Edgerton stated if the collision occurred at the T-intersection indicated by Mr Hoctor and Mr Ectoros, the damage to the Crewman was consistent with it facing directly across the T-intersection rather than turning right or left, and being stationary in the path of the BMW. On inspection of the Crewman, Mr Edgerton found:

The driver’s seatbelt was in a retracted position and was jammed by the damage. It could not be pulled out.

In a report to AAMI dated 27 May 2009, Mr Wintels stated there were reasonable grounds to suspect fraud in respect of the insurance claims.

The Magistrates’ Court proceedings

On 20 May 2009 Corpstreet Pty Ltd commenced a proceeding against Mr Hoctor in the Magistrates’ Court at Dandenong claiming $94,749.50 for damage to the BMW and the cost of a replacement vehicle (‘the Magistrates’ Court proceedings’), in which it was pleaded:

3.On or about 11 February 2009, the plaintiff’s vehicle, BMW registered TUF 021, was being driven by Nicolas Ectoros easterly along Dunlop Road, Mulgrave.
4.At the same time, the defendant was driving a Holden utility registered STP 747 south along Pickering Road, Mulgrave and approaching the intersection of Pickering and Dunlop Roads, Mulgrave.
5.A collision occurred between the said vehicles when the defendant’s vehicle turned right into the path of the plaintiff’s vehicle.
6.The collision arose solely as a result of the negligence of the defendant in the driving and management of his motor vehicle.

A notice of defence filed on 17 June 2009 by solicitors instructed by AAMI admitted paragraphs 5 and 6 of the statement of claim.

An AAMI claim message enquiry dated 8 October 2009 reads in part:

Docs received from LP regarding TPV rego, transfer of ownership, insurance and payout figures.
Westpac loan payout figure for TPV was $117,929.05 valid until 17/04
Therefore TP owes more than TPV is worth
TPV insured for Mr Nick Ectoros and Mrs Anne Ectoros to drive only
TP registered in a company name of Corp Street P/L
Guarantors for TPV loan are Robert Marinelli (director of Ultra Finish Clayton) …

On 22 December 2009 AAMI wrote to Mr Drew advising of its decision to refuse payment of his claim on the basis that it had been fraudulently made, and requiring repayment of amounts paid to him or on his behalf. At around the same time AAMI refused to indemnify Mr Hoctor in the Magistrates’ Court proceeding, and instructed its solicitors to cease acting on his behalf. Mr Hoctor was then represented in the proceeding by law firm, Kliger Partners, and on 11 May 2010 was given leave to add AAMI as a third party. On 28 June 2010 the solicitors for AAMI filed a defence to the third party claim on grounds that the damage to the BMW was intentionally caused, and AAMI was not contractually obliged to indemnify Mr Hoctor.

In about November 2010 Mr Hoctor ceased work at Ultra Finish Dandenong.

A letter sent by Kliger Partners to Mr Hoctor dated 8 December 2010 includes:

As you are aware, there is currently $12,498.39 in outstanding legal fees incurred by my firm in representing you in the defence of this proceeding.
Some of those fees have been outstanding since February 2010. Your former employer, Ultra Finish Dandenong, was previously making instalment payments, but no payments have been made since 1 September 2010.
I am regrettably now left in a position where my firm must cease to act on your behalf.

Kliger Partners raised in the letter the question of whether Ultra Finish Dandenong might be vicariously liable for damage caused by Mr Hoctor’s driving of the Holden Crewman, and the possibility of joining Ultra Finish as a third party. The letter goes on:

I discussed the matters referred to above with Rob Marinelli on 7 December 2010. He informed me that he will refer the matter to Ultra Finish Dandenong’s liability insurer.

Tait Lawyers then commenced to act for Mr Hoctor in the Magistrates’ Court proceedings and filed a notice dated 23 May 2011 joining Ultra Finish Dandenong Pty Ltd as a second third party, in which it was pleaded:

3.At the time of the accident the defendant was in the employ of Ultra Finish Dandenong Pty Ltd.

Particulars
The defendant had been instructed by Mr Robert Marinelli to drive to Ultra Finish Mulgrave Pty Ltd to deliver a piece of equipment.
4.In the circumstances the defendant claims an indemnity against Ultra Finish Dandenong Pty Ltd.

A defence to that third party notice filed for Ultra Finish on 10 June 2011 pleaded:

3.Save that it admits that at the time of the accident the defendant was an employee of the secondnamed third party and acting in the course of his employment, it otherwise denies the allegations contained in paragraph 3.
4.It denies the allegations contained in paragraph 4 and says that the defendant is not entitled to an indemnity from the secondnamed third party for the following reasons:
(a)As an employee of the secondnamed third party it was a term of the defendant’s contract of employment with the secondnamed third party that he uses reasonable care in the performance of his duties.

Particulars
The term is implied by operation of law.
(b)To the extent, if any, that the defendant, in breach of his employment contract, failed to take reasonable care in the performance of his duties and caused the accident, and thereby became liable for damages to the plaintiff, he is not entitled to an indemnity from the secondnamed third party by reason of the breach of the terms of his contract of employment.

First contact with Victoria Police

The Magistrates’ Court proceedings did not resolve at a pre-hearing conference held on 1 August 2011, and was listed for trial on 15 February 2012. In September 2011 Mr Hoctor’s solicitor, Mr Tait, telephoned then Superintendent Ian (Harry) Hayes (‘Mr Hayes’), who took contact details for Mr Tait and Mr Hoctor, which he passed on to Detective Sergeant Dean Hayes (‘D/Sgt Hayes’). D/Sgt Hayes then spoke to Mr Hoctor by phone.

Mr Hayes gave evidence that he joined the police force in 1970 and was given a nickname ‘Harry’, which stuck. He said he rose to the rank of Superintendent, and for the last five years of his service was rotated into various roles including Operational Superintendent at Southern Metro Region, Dandenong, where he was coordinator for traffic, intelligence, crime and social interaction. He retired in August 2013. He recalled that about two years before he retired he received a telephone call from a person purporting to be Mr Tait. He said the conversation was along the lines that Mr Tait was acting on behalf of a client who had an issue. He took down the details of Mr Tait’s enquiry, including a return telephone number, which he handed to D/Sgt Hayes.

Mr Hayes explained that at the time he received the telephone call from Mr Tait, the structure at Dandenong Regional Headquarters was that there was an Assistant Commissioner, then a Superintendent who ran the immediate division around Dandenong, and an Operation Support Superintendent, the role he held, which he described as virtually a mailbox for any issues relating to traffic or crime. He was not the person in charge of crime generally at the Dandenong Region Centre. Mr Hayes said his name had been given to Mr Tait by an inspector in charge of audit for the region, stationed at Moorabbin, who would have known that he was Operations Support Superintendent, and that was possibly why the officer suggested his name. Mr Hayes said he did not know Mr Tait, had never heard of Mr Wintels, and that Mr Marinelli’s name meant nothing to him. He said as a professional courtesy he did not dismiss Mr Tait, but passed the information on to D/Sgt Hayes to be followed up.

D/Sgt Hayes said he had been stationed at Dandenong Crime Investigation Unit (‘CIU’) since 2002, and a Detective Sergeant since the end of 2009. He said Mr Hayes handed him a piece of paper with a note of Mr Tait and Mr Hoctor’s contact details, and asked him to call in regard to a matter that Mr Hoctor wished to report or get some advice about. He telephoned Mr Hoctor. D/Sgt Hayes said Mr Hoctor’s disclosure regarded an insurance claim and something about a car accident. D/Sgt Hayes told Mr Hoctor he was implicating himself in a crime which would have to be investigated and go through court, and he wouldn’t be exempt from charges. He gave Mr Hoctor his name and told him if he wanted to report the matter he should come in and make a statement. He said he could not recall ever speaking to Mr Tait.

Admissions to AAMI by Mr Hoctor and Mr Drew

On 24 November 2011 Mr Wintels conducted a second interview with Mr Hoctor, in which he said the collision was staged, and was arranged by Mr Marinelli and Mr Ectoros.

On 15 February 2012 the Magistrates’ Court trial was adjourned. On 21 February 2012 Mr Wintels conducted a second interview with Mr Drew, who said he had dropped the Crewman off to Mr Hoctor’s workplace because:

He organised – well, his work and him organised to take it, yeah, to cause some type of smash.
…
Ah, I just spoke to Jay (Mr Hoctor) on the phone and he said drop it off to his work. And, I spoke to a bloke there – I don’t know, I can’t remember his name or anything – and he said, ‘Yep. Just leave it here and leave it with us.’

Mr Drew said the man he spoke to told him once he got his insurance settlement he would have to pay $1,000. He said he was pretty sure his wife paid the $1,000 into Mr Hoctor’s bank account, which was for the man at Ultra Finish Dandenong. When Mr Wintels suggested Mr Marinelli’s name, Mr Drew remained uncertain. Later Mr Wintels asked:

Can you describe him?---Sort of, short, sort of, chubby woggy looking bloke.
How old would you say, at that time?---Oh, yeah, I don’t know – probably mid-forties, late forties – I don’t know, somewhere around there.
Hair long, short, bald?---Black – black hair. He had black hair. I’m pretty sure he had black hair.

Short? Long?---No, I think it was only short.
Any other distinctive feature? Glasses?---No, no, not that I think of.
Tatts? Tattoos?---No, not that I was looking.
Did he speak with an accent?---No, don’t think so, no.
So, Australian?---Yeah, yeah, like, a – yep.
Why do you say, to use your term, woggy looking?---Oh, like, ethnic looking, you know, like.

On 14 March 2012 Mr Tait filed an amended defence in the Magistrates’ Court proceedings on behalf of Mr Hoctor in which it was pleaded that the claim by the plaintiff was fraudulent and was concocted by Mr Ectoros, Mr Marinelli and Mr Drew.

SC Douglas’ investigation commences

SC Douglas said she graduated from the police academy in July 2006, then worked at the Frankston uniform branch for five years during which she was seconded to Frankston CIU for 15 months, and transferred to Dandenong CIU in April 2011. She said she had been a detective for the last seven years, and attended detective training school in May and June 2012.

SC Douglas said on 14 March 2012 she was sitting at her desk when her supervisor, D/Sgt Hayes’ phone rang. She said she answered it and spoke to a person who identified himself as Jason Hoctor, who wanted to confess or volunteer his involvement in what he described as a fraudulent motor vehicle accident. Mr Hoctor told her he had called some months earlier and had a conversation with someone at Dandenong by the name of Dean, he could not recall further details, but said his solicitor, Ron Tait, would have those details. SC Douglas asked Mr Hoctor to establish which ‘Dean’ it was he had spoken to the previous year. She said not long after this conversation she was sitting next to D/Sgt Hayes when Mr Hayes came into the CIU office and spoke to him in relation to a phone call he had just received from Mr Tait. SC Douglas said it was at that time that she was able to confirm that D/Sgt Hayes was the officer Mr Hoctor had spoken to in 2011. After speaking to Mr Hoctor, SC Douglas then telephoned Mr Wintels. On the same day SC Douglas made the following notes in her diary:

1500Took phone call from a male – Jason HOCTOR, called on extension 7581 stated that he s/t a Dean a few months ago about a fraud that he was involved in. The matter has been to court + the magistrate has said that it is a police matter + should be reported.
Could not establish which Dean he s/t – requested that he s/t his
solicitor, Ron TAIT, + see if he can work out which member it was.
HOCTOR stated that his last call to SOGUV was ‘advice only’ + he didn’t report anything @ that time.
1515A/C HAYES liaised w D/S D. HAYES – HOCTOR made his enquiry back in September 2011 – A/C HAYES put him onto D/Sgt HAYES for advice re: reporting matter.

1525 D/Sgt HAYES liaised w HOCTOR: … HOCTOR’S friend, Mark DREW
approached him and asked if his boss did dodgy insurance claims –HOCTOR was working @ a panel shop, Ultra Finish @ time – HOCTOR didn’t know + made the enquiry w his boss Rob MARANELLI.
Answer was yes – DREW dropped car down. (a Holden Crewman Ute).
Boss approached HOCTOR + told him that he would be the driver of DREW’s car in the ‘accident’.
Other veh involved belonged to a Nick ECTOS – Events Towing, SNP.
Accident staged.
Insurance claim made through AAMI – DREW was paid out.
ECTOS was not paid out.
ECTOS is now suing HOCTOR as the driver of the other car.
AAMI investigator was Bill WINTELS – …

1540 s/t WINTELS: [email protected]
Has all the paperwork/stmnts/ i/v’s for this matter.
He initially i/v’d HOCTOR + DREW in 2009 in relation to the claim. HOCTOR stated getting cold feet + was reinterviewed WINTELS about
the bodgey claim in Nov 2011. DREW was subpeoned [sic] to trial (civil trial against HOCTOR) and was then interviewed by WINTELS when he conceded that the claim was false.
The first day of the civil trial was 16/02/2012.
Matter was adjourned until 30/07/2012 pending a police investigation.
WINTELS to contact me nxt to arrange a meeting to exchange documents.
HOCTOR to collect all relevant documents he has + come in + report matter.

1630 Off duty

SC Douglas said Mr Hayes did not interfere or give instructions in relation to the investigation. She said he simply facilitated Mr Hoctor and Mr Tait making contact with the right investigative body, and that was the extent of his involvement. She said when he came into the CIU office Mr Hayes spoke to D/Sgt Hayes, not to her. After the 10 minutes he was present on 14 March 2012, she had no further involvement with him.

SC Douglas said she knew who Mr Hayes was, because she had seen him at the Dandenong complex, but she had not previously had anything to do with him. She said her direct supervisor was D/Sgt Hayes, above him were the two detective senior sergeants, who in turn reported to the Investigation and Response Inspector who oversaw the Dandenong CIU, who then reported to the assistant commissioner for the Dandenong police complex or the Southern Metro Region. She said Mr Hayes was not part of her line of supervisors, and she would not have taken instruction from him as part of her investigation.

Neither Mr Hayes nor D/Sgt Hayes could recall details of what occurred on 14 March 2012. However, both said it was not unusual for Mr Hayes to attend the office and to speak to detectives there. Both denied exerting any pressure, or being aware of any pressure being exerted, on SC Douglas in relation to the investigation which commenced after Mr Hoctor’s telephone call. D/Sgt Hayes said as SC Douglas’ supervisor at the time, he handed the investigation over to her after she told him she had received a telephone call from Mr Hoctor. He said emails he subsequently sent to her in relation to the investigation were automatically generated by the police computer system, and were not sent in any way to pressure SC Douglas. D/Sgt Hayes said he did not experience any pressure in relation to the investigation from Mr Hayes, and had there been any pressure on SC Douglas he would have been notified because he was her supervisor. He said his recollection was SC Douglas’ name was the only one recorded on the case management system, Interpose, in relation to this investigation, which indicated to him he had allocated it to her at the start, and it remained with her.

Contact with Mr Wintels

SC Douglas emailed Mr Wintels on 14 March 2012 to arrange a meeting to discuss the investigation, and requiring all reports and paperwork in relation to the matter. On the same day Mr Wintels made a note of an arrangement to attend Dandenong Police Station on 21 March to provide documents and discuss the matter. There is no note from SC Douglas confirming the arrangement to meet, she did not make a note of meeting with Mr Wintels, and could not recall if the meeting occurred. On 23 March 2012 Mr Wintels replied to SC Douglas’ email of 14 March attaching relevant files in relation to the matter.

Mr Marinelli submitted it should be inferred Mr Wintels met with SC Douglas on 21 March, which provided him an opportunity to explain Mr Marinelli’s involvement in the fraud from AAMI’s perspective, and to put pressure on SC Douglas to prosecute him. I reject this submission. SC Douglas recorded other meetings during her investigation. It is likely she would have made a note had she met with Mr Wintels on 21 March. The likely explanation for Mr Wintels’ email on 23 March is that there was no meeting on 21 March. Even had the meeting occurred, there would be no basis to infer Mr Wintels used it as an opportunity to pressure SC Douglas to prosecute Mr Marinelli.

Interview of Mr Hoctor

On 26 March 2012 Mr Hoctor attended an appointment with SC Douglas, who arrested him and conducted a formal record of interview in relation to his role in the fraudulent claims. SC Douglas also took a statement from Mr Hoctor in which he said that in early 2009 Mr Drew asked about getting rid of his car, and he replied that he would speak to Mr Marinelli and find out for him. He said:

When I next saw Rob I asked him. I told him that a friend of mine wanted to get rid of his car and Rob told me to get my friend to bring the car down to the shop. I asked Rob because he was my big boss and the owner of the company and what he says goes.

I told Mark to bring the car down to the shop.
I’m not sure how long after that, but Mark dropped his car down to Ultra Finish in Quality Drive. Mark’s wife, Raelene, followed him down in another car and they left Ultra Finish together. I was at work that day and I introduced Mark to Rob out the front of the shop. The car that Mark dropped off was a black Holden Crewman; I’m not sure what the registration is. I left Rob and Mark out the front talking and I went back to work. Mark’s car stayed at Ultra Finish for about four weeks. The car was put away behind the gates and left there for ages.
Then one day, while I was working, I saw Mark’s car leave Ultra Finish Dandenong. I didn’t see who drove it because it had been parked down the laneway behind that gates and I was working in the workshop. I just saw it pull out of the front driveway and away from the shop.

Mr Hoctor said two days later Mr Marinelli told him “we’ve smashed your friend’s car”. He said around this time he met with Mr Marinelli and Mr Ectoros to get his story correct about what he would tell the insurance company had happened in the collision. He said Mr Marinelli arranged for Kliger Partners to represent him in the Magistrates’ Court proceedings, and agreed to cover all the legal fees. He said:

Not long after I resigned, I got a letter from Kliger Partners with a bill attached to it. The letter said I was no longer employed with Ultra Finish and that I was required to pay about $14,500 or something to settle the account.
This made me really angry and I went down to Ultra Finish and showed Rob the letter. He looked at it briefly, threw it in the corner and then said; ‘What do you want me to do about it?’ He told me that it was my bill and that I had the accident and he had nothing to do with any of it and to get out of there. I told him that I was going to the police. He said; ‘Go tell them whatever you want.’ I told Rob that if I get charged with a fraudulent claim that I was going to take him down with me. Rob was just laughing with me and telling me to do what I want. We had a really big argument about it all. At the time of this conversation, [Ultra Finish manager Theo Pagiamtzis] and Theo’s wife were in the room and heard everything. I deliberately talked in front of them and made it clear to Rob, Theo and his wife that I had been set up and the [sic] everything to do with the insurance claim was made up.
On my way home from Ultra Finish a mutual friend of mine and Rob’s called me. He knew where I had just come from and he knew that I had been speaking to Rob and he told me that Rob was going to get two bikie members to come to my house and ‘get me.’ Mr friend told me that he had smoothed it all over and put a stop to it and that Rob wouldn’t be going through with it. I don’t want to say who my friend is.

There was a gap of 50 minutes between Mr Hoctor arriving for the appointment with SC Douglas, and the formal interview commencing. SC Douglas was challenged on the basis that she made no note of what occurred in this period. She explained when someone comes into custody she had certain roles and responsibilities to fulfil: first, completing an attendance register and formally entering the person in the register; then providing the opportunity to the person to exercise rights, which Mr Hoctor did by telephoning his solicitor and his partner; then locating a recording device and taking it to the interview room before commencing the formal interview. She said she only spoke to Mr Hoctor in incidental terms before the interview commenced because of the need for all admissions to be formally recorded.

In his statement Mr Hoctor said when Mr Drew asked what was happening to the Crewman, he suggested he contact Mr Marinelli. When SC Douglas was asked if she ever checked phone records to see if Mr Drew contacted Mr Marinelli, she said records were no longer available given the time which had passed.

Further inquiries

On the same day she interviewed Mr Hoctor, SC Douglas spoke to Mr Tait and the solicitor for AAMI to get an effective understanding of the parties involved in the Magistrates’ Court proceedings. On 28 March 2012 she commenced a record of the investigation on the Interpose database, and named it Operation Fall Guy. She said she had formed the belief at that point that Mr Hoctor was the “fall guy” in relation to the AAMI fraud, and she gave the investigation that name so she would be able to recognise it in the list of jobs she had. SC Douglas made searches of the LEAP database which revealed the BMW was registered to Corpstreet Pty Ltd until 28 February 2010 when it was transferred to Mr Marinelli’s company, Adrian Rock Pty Ltd. She noted Mr Marinelli was the guarantor on a Westpac loan for the BMW with a payout figure of $117,929.

Interview of Mr Drew

On 5 April 2012 SC Douglas arrested, interviewed and obtained a statement from Mr Drew, who said at a 2008 New Year’s Eve party he said something to Mr Hoctor about getting rid of his car, and on Australia Day 2009 Mr Hoctor said his boss could organise to get rid of it. Mr Drew said:

I can’t remember the exact details of the conversation, but my understanding at the end of it was that my car would get smashed somehow and that I would make an insurance claim and get paid out.
There were a few phone conversations here and there, around that time, between Jason and I and eventually we arranged for me to drop the Crewman off at Jason’s work in Dandenong.
When I got to Jason’s work, I went into the reception and asked for him. I spoke quickly to Jason and he introduced [sic] to his boss. I was introduced to a bloke called Rob. I didn’t know his last name, but Jason told me that Rob was his boss. Rob was shorter than me, in his late forties, early fifties. He was chubby, with short hair and he wasn’t Australian. I’m not sure where he would have been from though, I couldn’t really tell.
I had a really quick conversation with Rob and he told me to leave the car there and that he would take care of it. He told me when I get the insurance payout I was to give him $1000 because that it what it would cost for him to take care of it.

SC Douglas agreed that during his second interview of Mr Drew, Mr Wintels suggested to Mr Drew the person he met at Ultra Finish Dandenong when he handed over the Holden Crewman was Mr Marinelli, and that this was not an appropriate interviewing technique. However, she said that the physical description Mr Drew gave of the person he met, and reference to that person as Mr Hoctor’s boss, satisfied her that he was referring to Mr Marinelli. She said the description given by Mr Drew did not match Mr Irving or Mr Pagiamtzis, who were other bosses at Ultra Finish Dandenong. She said Mr Drew had no financial motive to come clean because his insurance had already been paid out. She considered that by making admissions to involvement in a criminal offence, Mr Drew in effect supported Mr Hoctor’s story.

Interview of Mr Ectoros

On 9 May 2012 SC Douglas interviewed Mr Ectoros, who maintained that the collision happened in accordance with the insurance claims made to AAMI. During the interview he said he had received threatening telephone calls which he believed to have been made by Mr Hoctor, and which he had reported to the Glen Waverley police station. SC Douglas said she was not asked to do anything further about this allegation. She said much later she made an enquiry at Glen Waverley police station and found no complaint was recorded in the LEAP database.

During the interview Mr Ectoros said to SC Douglas:

How do you know? What – what Robert is gonna gain out of this, for instance?

To which she replied:

To be honest, I’ve got no idea.

SC Douglas said that was not her view at all. She said it had been a lengthy interview with Mr Ectoros and at different times during the interview he had asked her a number of questions, effectively trying to take control of the interview, and at this stage of the interview he was asking questions that related to Mr Marinelli, the co-accused she was investigating. She said she did not want to convey what she knew about Mr Marinelli’s motives to Mr Ectoros before she had conducted the interview with Mr Marinelli, and that evidence she had about Mr Marinelli’s motives did not relate directly to Mr Ectoros. She said she did not have to answer questions asked of her by a suspect, and she did not want to convey particulars of her investigation relating to another suspect, and her answer was a tactic she chose to employ.

Interview of Mr Marinelli

On 10 May 2012 Mr Marinelli attended an appointment with SC Douglas, accompanied by his solicitor Mr Lee, was arrested and formally interviewed, and made ‘no comment’ answers to most questions asked. During the interview, in addition to the evidence of Mr Hoctor and Mr Drew which implicated him as a party to the insurance fraud, SC Douglas put to Mr Marinelli what Mr Hoctor said about the dispute between them over the Kliger Partners fees, and the threats, as set out at [52]. Mr Marinelli made no comment to the allegation, but at the same time challenged SC Douglas by saying the scenario she put to him should be viewed as Mr Hoctor blackmailing him to pay Kliger Partners’ fees, rather than him blackmailing Mr Hoctor by communicating a threat through an associate that he would be harmed by motorcycle gangs if he reported the matter. At no stage during the interview did Mr Marinelli put a different version of events in relation to the collision, the insurance claims, or the argument with Mr Hoctor over legal fees.

In cross-examination SC Douglas was criticised for not having asked Mr Marinelli about various issues during her formal interview of him. The following is an example:

Did that not ever prompt you to ask Mr Marinelli where he was at the time this car was allegedly dropped off, or where he was at the time of the alleged meeting that set up the fraud? Or where he was at the time of the alleged accident? Any of those matters?---Um, I conducted my police interview with Mr Marinelli, and in my mind I had provided enough information in that interview for him to know the allegations against him. To know the point in time that I was referring to. Um, I believed I had made it clear that I was talking about a day in February 2009, in particular the 12th, and I thought that I had provided Mr Marinelli with enough information to then, um – if there was a different view, or if he had a version of events to tell me that I could corroborate, but that was his opportunity to do so.

SC Douglas said she made it clear to Mr Marinelli at the start of the interview that, if he wished to, it was a matter for him to respond and provide information in relation to the allegations. She said had he offered a different version of events she would have followed it up.

SC Douglas was taken to a letter from Kliger Partners to Mr Hoctor dated 12 February 2010 attaching a cost disclosure agreement, pursuant to which Mr Hoctor was liable for Kliger Partners’ fees. It was suggested to SC Douglas this letter was inconsistent with Mr Hoctor’s evidence and meant his subsequent demand that Mr Marinelli pay his legal costs on threat of being reported to the police for being involved in the fraud was an attempt at blackmail. SC Douglas said she was satisfied from her investigation that Mr Marinelli had initially agreed to pay Kliger Partners’ fees, but at some point after Mr Hoctor finished employment at Ultra Finish that agreement ceased. She said she did not simply believe Mr Hoctor, but a conversation with Mr Tait established the agreement in relation to fees did exist in the first instance, but changed. She said Mr Hoctor’s later demand that Mr Marinelli pay the Kliger Partners fees was not an unwarranted demand because of the prior agreement, and was not a demand made with menace, so the issue of blackmail did not arise.

I granted an application to recall Mr Marinelli, and he gave the following evidence about a conversation with SC Douglas after the formal interview:

… And what was the – what was said in that conversation?---I said to the detective, “Can I put in a statement that I’m being blackmailed by Jason Hoctor?”
Yes. And what did she say in response to that?---She said, “No. I’m doing a thorough investigation and I’ll get to the bottom of it.”
All right. And was Simon Lee present during that conversation?---Yes, he was Your Honour.

Mr Marinelli did not give the evidence when directly questioned in cross-examination about his conversation with SC Douglas after the interview. Nor did Mr Marinelli ever attempt to pursue a complaint with police that he was blackmailed by Mr Hoctor. Mr Lee gave evidence supporting Mr Marinelli on this point. He was unable to adequately explain why this allegation was not pleaded in the comprehensive statement of claim.

Further steps in the investigation

SC Douglas obtained statements from Ms Drew, Mr Hoctor’s partner, Ms Anderson, Mr Irving, and Mr Pagiamtzis. Ms Drew confirmed she was with her husband when he left the Crewman at Mr Hoctor’s work. Ms Anderson described being at a meeting with Mr Hoctor at Kliger Partners, which was also attended by Mr Marinelli, Mr Ectoros and his solicitor, to discuss the Magistrates’ Court proceedings. She said:

After this meeting we went to a coffee shop, the coffee shop was just down the street from the Kliger offices. It was just Jason, Rob and I. Robert asked us to walk down there with him. Rob seemed to be smoothing the whole thing over with us, again, as he always has, he said ‘Just stick to the story. Don’t worry about it. I’ve got it sorted. Just stick to the story,’ and that’s exactly what he was saying to us in the coffee shop that day, I think the fact that I had piped up during the meeting and said I wasn’t happy about Nick suing Jason had made Rob pull us aside outside and make sure that we were still going to go along with the story. Rob told us in the coffee shop, ‘Don’t worry. You worry too much. I’ll take care of it all.’

In his statement Mr Irving said:

I know Rob Marinelli because I worked with him at Dandenong Ultra Finish. He was the owner of the business.
I know Nick Ectoros because he was one of the owners of the Ultra Finish Group. He was rarely there, but I knew him to be an owner.
I know nothing about an accident, but I think when the insurance claim went to the investigation stage that was when Nick or Rob involved me. I cannot remember who out of the two of them approached me first; it was such a long time ago.
I think the conversation happened at work. I remember being told that an investigator would come and see me from AAMI and that all I needed to say is that I sent Jason to pick up parts from Mulgrave. I was also told to say that I gave Jason directions to Mulgrave. I wasn’t interested in any details and I didn’t want to know what had happened. Past asking ‘why?’ I don’t think I asked any other questions, but I remember feeling that it was clear that I had to do what I was told.
I can’t remember exactly how the conversation went, but I do remember that I was told not to ask any questions about why I had to do it.
I remember being asked how I went after I spoke to the AAMI investigator, but again I don’t know who out of Rob or Nick would have followed up with me.
Most of what I said to the AAMI investigator is true, I was always getting the boys to do different jobs here and there, to collect car parts and drop customers off and a lot of the time there was no work car available. But I knew at the time that I spoke to the AAMI investigator that I did not ask Jason to drive to Mulgrave.
My employment with Ultra Finish terminated because the position that I had been working in was no longer available. I have not had contact with Jason, [Rob] or Nick since I left the company.

Commencing the criminal proceedings

On 22 November 2012 SC Douglas submitted briefs of evidence against Mr Hoctor, Mr Drew, Mr Ectoros and Mr Marinelli to her supervisor, Detective Sergeant Leonardi (‘D/Sgt Leonardi’), who authorised prosecution of the charges by summons the following day. The three charges against Mr Marinelli were:

(a) The accused at Melbourne on 12 February 2009 dishonestly obtained for another a financial advantage, namely $17,306.77 paid off a car finance, by deception, namely assisting in the lodgement of a false insurance claim with AAMI.

(b) The accused at Melbourne on 12 February 2009 did, by deception namely participated in a fraudulent insurance claim, dishonestly obtain property, namely cash belonging to AAMI and valued at $5,864.83 with the intention of permanently depriving AAMI of the said cash.

(c) The accused at Mulgrave on 3 March 2009 did attempt to commit an indictable offence, namely obtain property by deception.

SC Douglas said she issued the charges in the Melbourne Magistrates’ Court because she had four co-accused who were spread from Safety Beach to Corio, and that was the most central court. She issued summary charges because the amount of the alleged deception was the amount of the insurance claim in relation to the BMW, around $94,000, which was under the $100,000 limit for the summary stream. The charges were listed for mention on 6 March 2013.

SC Douglas said she treated her investigation as one investigation with four suspects, each of whom was eventually charged. Because it was the one set of circumstances, she compiled one brief of evidence. She said she did not rely on Mr Wintels’ interviews with Mr Drew and Mr Hoctor because she had conducted her own interviews, but they did form part of the brief of evidence relating to what Mr Wintels could say about his investigation on behalf of AAMI. She included Mr Edgerton’s report in the brief of evidence because he had conducted an examination and analysis of the two vehicles back in 2009, which was support for the fact the accident was staged.

Mr Marinelli’s case was that the only evidence against him in the criminal proceedings was the unsupported assertions of Mr Hoctor, who was a liar. It was put to SC Douglas that she had a lot of material to assess Mr Hoctor’s credibility, because he lied when he supported Mr Drew’s claim to AAMI for damage to the Crewman, lied to Mr Wintels in the first interview, lied to his first solicitors Kliger Partners, and to his second solicitor Mr Tait, and that his lie extended not just to the circumstances of the collision, but also to who gave him instructions to drive the Crewman from Ultra Finish Dandenong to Ultra Finish Mulgrave on the day of the accident, and the repetition made him a chronic liar. SC Douglas disagreed, and said this all formed the first set of circumstances:

As I understood the - the, um, the civil litigation, Hoctor maintained that he was the driver until approximately November 2011. And there were different components to the civil litigation. However, there was always one version in that, um, a car accident had occurred in legitimate circumstances and that, um - and that these parties were suing in relation to the vehicles.

Later she added:

Um, I interpreted the evidence that this lie that had been told to AAMI, this agreement that had been entered into, this staged accident that had occurred to try and get vehicles written off, had gone too far and gone outside the scope of the original fraud and that Mr Hoctor’s only avenue of - his only course at that stage was to tell the truth and was to come clean about it being a staged accident and to volunteer the parties involved. He gave a confessional statement, and I corroborated avenues of that statement, including taking a statement from Mr Irving, taking a statement from Ms Kelly Anderson, where she overheard, um - or she was present when Mr Marinelli had a conversation with her, where he said, “Stick to the story”. My evidence was that Mr Hoctor was telling the truth in relation to the accident being staged, the fraud on AAMI and Instrat Insurance and, um - and Mr Marinelli being involved.

SC Douglas said there was evidence which corroborated Mr Hoctor and supported the case against Mr Marinelli. She said there was no motive for Mr Drew to lie when he made the confessional statement. His evidence corroborated Mr Hoctor. She said Mr Drew’s description of the person he spoke to when he dropped the Crewman at Ultra Finish Dandenong was consistent with Mr Marinelli’s appearance. She said Ms Drew’s statement provided some corroboration in relation to the evidence given by Mr Hoctor and Mr Drew. SC Douglas said Ms Anderson’s evidence about the discussion in which Mr Marinelli said, ‘Don’t worry about it, it’s okay, just stick to the story’ was evidence of an admission, that Mr Marinelli was saying stick to the story rather than tell the truth about what happened. Mr Pagiamtzis corroborated Mr Hoctor’s statement that he attended Ultra Finish Dandenong and argued with Mr Marinelli about the Kliger Partners bill. Mr Irving said he was told either by Mr Marinelli or Mr Ectoros to lie to the AAMI investigator. SC Douglas said the evidence indicated Mr Ectoros was rarely at Ultra Finish Dandenong, so she inferred it was Mr Marinelli who instructed Mr Irving to lie to the investigator. She said Mr Irving’s statement supported the fact a fraud had been committed against AAMI, and implicated Mr Marinelli. She said when she obtained the statement from Mr Irving, he was no longer employed at Ultra Finish Dandenong.

SC Douglas said when she submitted the brief she believed there was sufficient evidence to pursue Mr Marinelli. She understood the test set out in the Victoria Police manual was that there needed to be a reasonable prospect of conviction based on the evidence contained in the brief, and she was satisfied that was the case. She said as part of her investigation she uncovered a number of matters supporting Mr Marinelli’s motivation. First was the payment of $1,000 which Mr Drew said he was required to make, and Mr Hoctor said he paid. Second was the business relationship and friendship between Mr Marinelli and Mr Ectoros. Third was ownership of the BMW, which transferred to Mr Marinelli after the accident. Fourth was the guarantee by Mr Marinelli in relation to finance of $117,000 against the BMW. SC Douglas said $117,000 was a lot of money to have tied up in a guarantee, and if the vehicle was written off and the cost of the vehicle was paid out by insurance, Mr Marinelli would have been relieved of the financial burden of the guarantee. It was put to SC Douglas that her evidence about Mr Marinelli’s motives was recent invention:

… I suggest to you, that when you came up with the theory about what was Mr Marinelli’s motives, that’s a recent - that’s your recent theory to cover the fact that you knew from reading the chronology that you’ve made an admission to Mr Ectoros that you had no idea why Mr Marinelli - what Mr Marinelli would get out of it?---I made notes at the time. Um, back in March I made - of 2012, I made notes about the - the potential motive and - and the guarantor amount. And again, as I’ve discussed today, I didn’t have to make Mr Ectoros aware of the allegation of another suspect.

SC Douglas said Mr Drew’s bank statement showing cash withdrawals of $1,000 on 20 and 24 February 2009 was significant in relation to the confessional statements made to her by Mr Drew and Mr Hoctor. She was asked whether she ever checked bank records to see if the $1,000 paid by Mr Drew was received by Mr Marinelli, and she said she understood it was a cash payment, so did not check bank records. SC Douglas agreed there was no direct evidence the $1,000 went to Mr Marinelli, but she said it was an inference she determined on the facts she had.

SC Douglas agreed that, on his story, Mr Hoctor was not receiving anything out of the fraud. She was asked whether it ever occurred to her that it was more likely Mr Hoctor was keeping the $1,000 paid by Mr Drew for himself, and she said no, that she believed Mr Hoctor’s statement that he had passed the money on to Mr Marinelli to be true because she had been able to independently corroborate other aspects of Mr Hoctor’s confessional statement.

SC Douglas was asked if she ever found out who the driver of Mr Drew’s vehicle was. She said all she had in relation to the collision was Mr Edgerton’s report, and she could not establish how the vehicles came together. There was a note in Mr Edgerton’s report that the Crewman seatbelt was stuck in the retracted position, and she formed the view it was most likely there was no driver in the vehicle when the collision occurred. It was put to her that she could have asked Mr Marinelli, and she said he made a no comment record of interview. She agreed she did not ask Mr Hoctor that question, but he said he was not present when the staged collision occurred. She agreed that whoever was driving Mr Drew’s vehicle at the time was part of the fraud. It was put to SC Douglas that the original AAMI claim documents gave the address at which the collision occurred, and she said she took account of Mr Wintels’ investigation in which he did a doorknock at the accident scene, and nobody could recall seeing, hearing or being aware of the accident. SC Douglas said because the accident was fraudulent and staged, she determined it would have happened in a location that was more private and in a much more controlled environment, so that there could be no witnesses.

It was put to SC Douglas that, as an active participant in the fraud, it was improbable that Mr Hoctor did not see, or know, who was driving the Crewman, and she did not agree. The following was put to SC Douglas:

So I suggest you’re just making this up now to try and cover for the fact that there’s a blatant hole in your investigation, and that is that it was obvious that Mr Hoctor - it was almost certainly probable that he was the driver, but that if he wasn’t the driver, he would have known who the driver was. And you’ve just realised you just didn’t make enough investigations about this point, and as a result of you’ve now come up with a theory that there may not have even been a driver?---No, these were my considerations during my investigation, and I believed that I had evidence to support that.

It was put to SC Douglas it would be extraordinary for Mr Ectoros, if he was involved in the fraud, to bring an action against the other fraudster, Mr Hoctor, to open up the whole matter in a civil court. She said she understood the civil proceeding was designed to get AAMI to pay out the whole insurance claim, but at some point Mr Hoctor had had enough of the civil litigation because it went beyond the circumstances of the original agreement to have Mr Drew’s car written off, and may have resulted in him being caught by civil litigation worth $100,000. He then chose to tell the truth about the fraudulent AAMI claim, and that initiated her investigation.

SC Douglas was cross-examined at length in relation to the content of the investigation undertaken in 2009 by Mr Wintels and specifically his concerns as to the credibility of Mr Drew and Mr Hoctor. She said she was aware Mr Wintels had raised concerns, but his report was not evidence she could place primary reliance upon, and she needed to conduct her own investigations, take her own statements from witnesses and form her own opinion in relation to confessional statements provided by Mr Hoctor and Mr Drew, and evidence which was corroborative. SC Douglas was asked whether she made an enquiry about the AAMI documents indicating Mr Hoctor had a concerning claims history, and she said she determined from Mr Wintels’ report that there was no question of fraud having been raised in relation to Mr Hoctor’s claims history, and she did not feel she could take it any further.

The brief head

SC Douglas explained that the brief head is a document prepared at the commencement of the investigation. As documents accumulate they are added to the brief. The second page of the brief head has a series of questions with tick box answers for yes, no or not applicable. She ticked the box to indicate Mr Marinelli had prior convictions, which she said was a mistake. SC Douglas said she later made a LEAP enquiry which showed Mr Marinelli had no prior convictions, but she did not correct the ticked box on the brief head. She did not agree ticking the wrong box was highly prejudicial to Mr Marinelli’s position. She was asked:

What are the repercussions that could result from you having ticked the wrong box when an authorising detective sergeant looks at this brief to see whether or not it should be authorised or not?---Your Honour, I don’t believe there are any repercussions, and the reason that I say that is because if you see that that box is ticked you would then go to the back of the brief where the prior convictions are always seated within the brief, and there wouldn’t have been any prior convictions in there because Mr Marinelli doesn’t have any prior convictions. That’s why I say I don’t think it could - nothing could happen with it. It’s a mistake and [D/Sgt Leonardi] would have seen that when he checked the back of the brief.

Serving Mr Marinelli with the charges

SC Douglas said when she interviewed Mr Marinelli he asked that all documents and correspondence be served on him through his solicitor, Mr Lee. On 19 December 2012 she received a telephone message taken by the clerk in the Dandenong CIU from Mr Marinelli’s solicitor requesting a copy of the police brief. She said she served a preliminary brief, which included the charge sheet and summons, summary, list of witnesses, list of exhibits and the witness statements by delivering it to Mr Lee’s office later the same day. She said the material she served was the same material in the brief approved by D/Sgt Leonardi.

Further investigations

On 20 December 2012 SC Douglas received a memo from D/Sgt Leonardi with a checklist of things she had to do in relation to the investigation of all four accused. She said it was not unusual for an authorising officer to follow up such matters even though the brief had already been authorised. One note made by D/Sgt Leonardi referred to a paragraph in Mr Hoctor’s statement where he alleged that somebody had told him that Mr Marinelli had made threats against him. D/Sgt Leonardi was asking whether that person had been identified. SC Douglas said Mr Hoctor was not prepared to tell her who the person was.

After she commenced the criminal proceedings, SC Douglas obtained statements from Mr Wintels in relation to his investigation and interviews, a Senior Claims Adviser at AAMI relating to the insurance claims, and Mr Edgerton to confirm his forensic report.

The information report

SC Douglas said that around 30 January 2013 she received an information report (‘IR’) prepared by a tactical intelligence officer at Dandenong CIU in response to an anonymous letter sent to Dandenong CIU, which stated that Mr Marinelli would stop at nothing to make the case against him go away, and that he had contacted the Comancheros of Hallam. SC Douglas said in response to receiving this report she contacted Mr Hoctor, Mr Drew and Mr Irving to ask whether they had been threatened or observed suspicious activity, and to give them advice as to their safety. She said none of the witnesses reported having been threatened or having seen any suspicious activity. She said she then rang the Echo Taskforce, which investigated outlaw motorcycle gang activity, and asked whether there was anything on record which associated Mr Marinelli to the Hallam chapter of the Comancheros, and was told they didn’t have any information to that effect within their records. SC Douglas said the information in the anonymous letter could not be confirmed, and that it did not influence her decision to continue with the prosecution against Mr Marinelli. She agreed the anonymous letter may have been written by Mr Hoctor, but she said she did not see the letter, and did not attempt to check whether it was in his handwriting. She said no information had since come to light that implicated Mr Marinelli as being associated with motorcycle gangs.

The IR was sent to SC Douglas by a Detective Sergeant Hedge at Dandenong CIU, attached to an email which read in part:

Hello Elise, this IR has come from the boss relating to your crook, Roberto Marinelli, possibly sourcing the help of the Comanchero in Hallam to stand over your victims in a deception matter you have charged him with to get them to withdraw charges.

SC Douglas said ‘the boss’ was not a reference to Mr Hayes, but was a shorthand title which specifically referred to the rank of detective sergeant or senior sergeant, and in this particular instance the reference was to one of the two detective senior sergeants at Dandenong CIU. It was put to SC Douglas that the IR coming to her from the boss indicated that the police had a view Mr Marinelli was a “crook” and wanted to investigate every possible source of information that might corroborate that belief. SC Douglas said that was not correct, that each IR created must be followed up, and because in this case the IR related to her investigation it was referred to her to do the follow up.

The first court mentions, and pleas by Mr Drew and Mr Hoctor

On 20 February 2013 SC Douglas sent the brief to Melbourne Prosecutions for a mention hearing in the Magistrates Court on 6 March.

At the mention Mr Drew pleaded guilty to charges of obtaining financial advantage and property by deception, and was fined $500 without conviction and placed on a good behaviour bond. The sentencing magistrate imposed the condition that Mr Drew undertake to the court to give evidence against his co-accused in the matter. SC Douglas made a diary note of her attendance at court that day in which she recorded that a case conference was held with solicitors for each of the accused, Mr Marinelli was pleading not guilty, and a contest date was set for 28 August for three days.

On 16 April 2013 Mr Hoctor pleaded guilty to three deception charges, was fined $750 without conviction, and was placed on a good behaviour bond. The sentencing magistrate made the following order:

Pursuant to section 5(2AB) of the Sentencing Act 1991 the Court has imposed a less severe sentence than it would otherwise have imposed because an undertaking has been given by the offender, on oath, that he will continue to assist law enforcement authorities in the prosecution of the coaccused by adopting as true and correct the statement made to police on 26^th March 2012 and will give evidence to that effect upon being called to do so.

SC Douglas’ interaction with Scott Douglas of VicRoads

On 23 April 2013 an officer at VicRoads, Scott Douglas, emailed SC Douglas advising that as licencing authority for the purposes of the Accident Towing Services Act 2007 (Vic), VicRoads was investigating the tow truck driver accreditation of Mr Marinelli and Mr Ectoros. Mr Douglas’ email includes:

I am looking for copies of the charge and summonses and a copy of the summary that will be read to the court on a plea. I am also after both when and how MARINELLI & ECTOROS were served with the charges, as this is relevant to the date they commit the breach of failing to inform VicRoads.
This information will be used as part of the brief against MARINELLI & ECTOROS for failing to inform VicRoads of the charges and also to consider their suitability to hold a tow truck driver accreditation.

SC Douglas said Mr Douglas became aware she was the informant in the criminal proceedings when he searched the Magistrates’ Court website. On 17 May 2013 SC Douglas responded providing a copy of the charge sheet and summary. Sometime later SC Douglas advised Mr Douglas when and how Mr Marinelli was served.

On 29 July 2013 Mr Marinelli attended a meeting with Mr Douglas.

On 11 December 2013 Mr Lee, on behalf of Mr Marinelli, made a formal complaint to the Police Conduct Unit on the basis SC Douglas had unlawfully provided personal information to Mr Douglas, and that SC Douglas and Mr Douglas were related.

Sergeant Vandenbosch

In 2013 Sergeant Vandenbosch (‘Sgt Vandenbosch’) was working as a leading senior constable in Dandenong prosecutions. He said in about April 2013 Mr Lee rang to tell him he had a matter listed in Melbourne Magistrates’ Court which he needed transferred to Dandenong, and asked how he should go about that, and Sgt Vandenbosch told him to request an abridgment to Dandenong. Mr Lee also told him the matter had gone before a Magistrate who thought it should be in the indictable stream, not the summary stream. Sgt Vandenbosch said he undertook to contact Melbourne Prosecutions to see what the basis of the jurisdictional dispute was. He said because the matter was to be abridged back to Dandenong he ended up looking at the jurisdictional issue, and the brief of evidence was sent to him through the internal mail. After reviewing the brief he spoke to D/Sgt Leonardi about it, explaining that he received it for a jurisdictional review, and that there was nothing in the brief which told him conclusively whether the value of deception was under or over $100,000. He said he added, having watched the record of interview and read the brief, it was his view there was no prospect of conviction because there was no evidence linking Mr Marinelli to the offence. He said D/Sgt Leonardi responded by saying ‘He’s a crook. I’m going to get him,’ handing him a manila folder with a photo of a car, and saying something to the effect that ‘Mr Marinelli claimed two smashes on the car within a few days and repaired it twice’. Sgt Vandenbosch said:

… but when I pointed out that the case theory that they appeared to be running was that the fellow who owned, I think it was a BMW, uh, was happy to have his car repaired, was just not logical. And I said to him you would have to agree if you’re suggesting that there’s collusion to stage an accident that both parties would intend to be paid out, one would’ve thought. Um, and that’s the only basis on which you could put your case. To which he agreed, and he said, “Oh look, I don’t care, if it’s got to go for trial, it’s got to go for trial.”

Sgt Vandenbosch was asked:

Do you know whether Mr Leonardi did anything in response to your queries about this case against Mr Marinelli?---I don’t think there was anything for him to do, my – I think we concluded the discussion with me and my puttage was, well, you have to logically say that if there’s a collusion between these people to crash these cars for a financial gain, surely they must’ve wanted both cars to be total lost, they call it, and they get their money and they’re happy. And he said, “Well yes, that makes sense.” So we were concluded as far as I was concerned.

Sgt Vandenbosch gave the following evidence about a telephone conversation which he said he had with SC Douglas a few days later:
I said the only evidence you have that links this fellow with this alleged offence is the fellow who was driving one of the cars who had changed his story a number of times. You know, what’s – it was more or less what’s the go with this, it’s not – there’s not much evidence here at all.
…
What was her response to that?---She said to me I received it from Assisting [sic] Commissioner Hayes, it came from high up, words to the effect of, “This is what I’ve been dealt with, it is what it is.”
…
Do you recall anything else you said to SC Douglas about that issue?---Well, I think the story from the fellow who was driving the car, was that they - the person who owned the car had paid $1,000 to the person who was driving the car to pass on to your client in exchange for orchestrating the collision.
Yes?---And that - yes, his version, which I think from memory was his third, was the only evidence that named your client.

SC Douglas said she could not recall having a telephone conversation with Sgt Vandenbosch in July 2013, but she didn’t dispute it occurred. She said she couldn’t recall Sgt Vandenbosch telling her the only evidence she had linking Mr Marinelli to the offences was the statements of Mr Hoctor, who had changed his story a number of times, and she said she didn’t agree that was the case. SC Douglas said:

Objective aspect
Mr Marinelli

Mr Marinelli submitted, first, the case against him depended principally on Mr Hoctor being accepted as a witness of truth. The critical elements of Mr Hoctor’s version of the accident in March 2012 were either not corroborated, or were corroborated by witnesses whose statements were problematic and not independent. Mr Marinelli submitted:

[Mr] Drew could not remember the name of the person he was introduced to despite inappropriate questioning from [Mr Wintels] and his description of the person was at least in part inconsistent with [Mr] Marinelli’s physical description who is not bald.

Mr Marinelli submitted Mr Hoctor and Mr Drew were not credible or reliable as witnesses because each had confessed to a fraud and each had a strong motivation to lie. Mr Hoctor was exposed to substantial damages in the civil proceeding and legal costs to AAMI, he was angry at Mr Marinelli for not bowing to his demand to pay his legal fees to Kliger Partners, and his way out of this dilemma was to say that he was not the driver and to cooperate with police and AAMI. He had a criminal history and a prior insurance claim history, which reduced his credibility. Mr Drew faced repayment to AAMI, continued pressure to appear as a witness in the civil proceeding, and pressure from Mr Hoctor to conform with his version. He could not remember the name of the person he spoke to at Ultra Finish even when prompted by Mr Wintels, and his description of the person was at least inconsistent with Mr Marinelli, who is not bald. Both Mr Drew and Mr Hoctor sought and received more lenient sentences by cooperating with SC Douglas. For the following reasons, Mr Irving was a problematic and unreliable witness. First, in 2009 he told Mr Wintels that he gave instructions to Mr Hoctor to deliver equipment to Ultra Finish Mulgrave. Second, his later statement to SC Douglas was vague, because he could not say which of Mr Ectoros or Mr Marinelli told him to give the earlier statement to Mr Wintels. Third, it was open for the Court to find that Mr Irving was, as he said in his evidence at the committal, pressured into giving the statement to SC Douglas through suggested questioning. Fourth, Mr Irving became more problematic as a witness when he told SC Douglas shortly before the committal that he was pressured into giving the statement to her, which he later repeated at the committal, and said he could not recall the events in 2009.

Second, the staged accident was more likely to have occurred without Mr Marinelli’s involvement, and there was no obvious motive for him to risk his reputation and successful business by participating in a fraud. No prudent accuser would believe such a person would do so for $1,000.

Third, a prudent person would have made the following further enquiries before commencing the criminal proceedings:

(a)inquire as to Marinelli’s financial position and obtain Marinelli’s bank statements to ascertain a motivation to commit fraud and to attempt to confirm receipt of $1000;
(b)obtain Marinelli’s phone records;
(c)obtain Hoctor’s bank statements to ascertain whether he retained the $1000 he received from Drew;
(d)inquire with, and obtain documents from, Kliger Partners and Ectoros’ lawyers in relation to the alleged meeting discussing the commencement of civil proceedings against Hoctor;
(e)inquire with Kliger Partners as to who was liable for legal fees in respect of work undertaken for Hoctor and whether there was any agreement for Marinelli to pay;
(f)inquiries in relation to a possible blackmail by Hoctor against Marinelli;
(g)inquiries as to Marinelli’s whereabouts on the dates in question;
(h)inquiries as to Hoctor’s and Drew’s obligations and arrangements to repay AAMI;
(i)inquiries as to the allegations being made by each party, their respective exposure to liability for damages and costs, and the steps taken by each party in the civil proceeding;
(j)inquiries as to who drove the Crewman when the staged accident occurred; and
(k)inquiries as to Marinelli’s whereabouts when the Crewman was dropped off and when the staged accident occurred.

Fourth, the absence of reasonable and probable cause was more “blindingly obvious” to a prudent person at the following stages:

(a)when Leonardi raised issues for Douglas to follow up in his memorandum in late November 2012;
(b)when Vandenbosch raised issues directly with Douglas in July 2013 about the difficulties in the prosecution against Marinelli and the lack of independent corroborating evidence;
(c)when Irving said to Douglas in February 2014 that he had been pressured into giving the statement;
(d)when Irving said at the Committal hearing that he had been pressured into giving evidence through suggestive questions and that he had no recall of the events in question; and
(e)when Pickering asked Douglas to follow up with a number of important inquiries on 29 April 2014.

Analysis

It is difficult to see what Mr Hoctor had to gain from admitting involvement in the fraud, unless that was the truth of the matter. His admissions resulted in him being charged with serious criminal offences. There is no evidence he was charged with less serious offences, or was offered leniency, by SC Douglas as an incentive to implicate Mr Marinelli and Mr Ectoros. Whilst he and Mr Drew both received a more lenient sentence because they undertook to continue to assist in the prosecution of co-accused, that was pursuant to the sentencing magistrate’s discretion exercised in March and April 2013, well after the criminal proceedings had commenced, and could not have been guaranteed when admissions were made.

There were two possibilities in relation to the collision. Either it was genuine, as Mr Ectoros maintained, or it was staged. There was nothing to stop Mr Ectoros from prosecuting the Magistrates’ Court proceedings after Mr Hoctor confessed involvement in fraud. If the collision was found to be genuine, Mr Hoctor would almost certainly have succeeded in the third party claim against AAMI. If the collision was found to be staged, Mr Ectoros’ claim against Mr Hoctor would fail. Mr Hoctor did not avoid a substantial damages claim, or an order for costs to AAMI, by making the confessional statement. Even after making admissions Mr Hoctor remained a defendant in the Magistrates’ Court proceedings, and remained liable for outstanding fees to Kliger Partners, which SC Douglas was told he came to an arrangement to pay.

Mr Marinelli accepted that the collision was staged. It is worth remembering that Mr Ectoros maintained he was the driver of the BMW when it collided with the Crewman. If the collision was staged, Mr Ectoros was strongly implicated. The circumstantial evidence linking Mr Marinelli to Mr Ectoros, the BMW, the bank finance and the insurance claim lent support to the criminal proceedings.

Mr Drew’s description of the person he spoke to when he delivered the Crewman to Ultra Finish Dandenong is consistent with Mr Marinelli’s appearance. Mr Drew did not say the man he spoke to was bald. Further, Mr Drew described the person he was introduced to as Mr Hoctor’s boss. Importantly, Mr Drew’s statement corroborated Mr Hoctor’s version that there were other people involved in the fraudulent staged collision.

Whilst it is true Ms Anderson was not an independent witness, her evidence about the meeting with Mr Marinelli was capable of being accepted.

Mr Irving’s statement was material in two ways. First, he said he did not ask Mr Hoctor to drive to Ultra Finish, which corroborated Mr Hoctor’s evidence. Second, he said he was told to lie to the AAMI investigator and say he did, which supported an inference that whoever told him was a party to the staged collision and fraudulent insurance claim. By saying he could not recall which of Mr Ectoros and Mr Marinelli approached him first, Mr Irving suggested both were involved. The statement, if accepted, lent considerable support to the criminal proceedings against Mr Marinelli.

Mr Irving’s evidence at the committal that he was pressured by SC Douglas into giving the statement amounted to little more than assertion. He gave no detail of how pressure was applied, other than to say he was fed the questions and answers. He did not say why he succumbed to pressure to implicate Mr Ectoros and Mr Marinelli. The allegation that SC Douglas pressured Mr Irving into making the statement is serious. The evidence supporting the allegation is weak. I accept SC Douglas’ evidence that she did not pressure Mr Irving when he made the statement to her.

A reasonable informant was entitled to proceed on the basis that Mr Irving’s evidence may be accepted. There was no obvious motive for Mr Irving to lie to SC Douglas. Even after he became an unwilling witness, the possibility existed, depending on his evidence at trial, that an application to treat Mr Irving as an unfavourable witness would be granted, allowing the prosecution to cross-examine him and to tender his statement. Further, as Gyles AJA observed in Thomas, an informant need not be assured all necessary witnesses will give evidence in accordance with the information they provided.[26]
[26]Thomas [105].

Other material which corroborated Mr Hoctor’s evidence included Ms Drew’s statement that the Crewman was left at Ultra Finish Dandenong in January 2009, and Mr Pagiamtzis’ statement that Mr Hoctor went to Ultra Finish Dandenong and argued with Mr Marinelli in around late 2010. In addition, there were the records which showed Mr Marinelli to be the guarantor on a loan for over $100,000 on the BMW, insurance records showing Mr Marinelli’s apparent interest in the BMW being written off and paid out, rather than repaired, and Mr Marinelli’s involvement with Kliger Partners.

A cautious and prudent person in the position of SC Douglas would have expected the evidence of Mr Hoctor and Mr Drew to be subject to serious challenge. This was likely to be particularly so in the case of Mr Hoctor because of his history of prior offences and previous insurance claims. In Thomas, Gyles AJA said:

Counsel for the appellant also addressed a number of issues which raise questions about the credibility of Winefield’s account of events. He also pointed to features of Winefield’s antecedents that would demonstrate the likelihood of his having taken a more active part than he said. It may be that the trial judge’s consideration of Winefield’s position was not as extensive as might have been the case. But that is not the test. No doubt it could be expected that, as with any co-participant in an enterprise of this sort, his evidence would be heavily scrutinised, but that is not a reason for not laying charges which are open and letting the system take its course.
In my opinion Winefield’s signed record of interview, together with the other material, formed a proper basis for the finding by the trial judge that, objectively, there was a proper basis for the charges. [27]

Similarly, in this case, the fact that the credibility of Mr Hoctor and Mr Drew was likely to face serious scrutiny was not, without more, a reason why the criminal proceedings should not have been commenced.

[27]Thomas [112]–[113].

It was not necessary for SC Douglas to make every possible inquiry before commencing the criminal proceedings. Further, it is difficult to see how most of the inquiries Mr Marinelli now says should have been made would have assisted. There was no evidence the $1,000 was paid into an account held by Mr Marinelli, so bank records were unlikely to have assisted. Ms Anderson’s evidence related to what occurred after a meeting at Kliger Partners, not what occurred during a meeting with the solicitors. Mr Marinelli did not make a complaint that he was blackmailed by Mr Hoctor, and did not take the opportunity he was given to show he was not at Ultra Finish when the Crewman was delivered or when the staged collision occurred. There is no evidence anyone was driving the Crewman when the collision occurred. SC Douglas’ inquiries after the committal showed Mr Drew had made arrangements to repay AAMI. Mr Marinelli may have agreed to pay his legal fees, even if Mr Hoctor was directly liable to Kliger Partners. I do not agree that a prudent and cautious person would have felt it necessary to make the further inquiries before commencing the criminal proceedings.

D/Sgt Leonardi approved commencement of the criminal proceedings, and appears to have provided some continuing supervision. The memorandum he sent to SC Douglas on 20 December 2012 related to the four accused and did not suggest the prosecution was unwarranted. A prudent informant may have considered obtaining legal advice after hearing the views of Sgt Vandenbosch. However, I note again his poor grasp of the case against Mr Marinelli. Further, within a short time the OPP became involved when the matter was listed for committal. Whilst formal advice as to the merits of the criminal proceedings was not sought or obtained, a prudent informant may have taken comfort from the involvement of the OPP preparing for the committal, briefing counsel and running the committal.

Mr Marinelli has not established that the materials available to SC Douglas did not objectively warrant the commencement and continuation of the criminal proceedings.

Malice

Mr Marinelli submitted, first, the lack of probative evidence implicating him in the serious fraud supported an inference of malice. For reasons which I have just set out, I reject this submission.

Second, Mr Marinelli submitted the evidence of Sgt Vandenbosch established that SC Douglas had no effective choice but to pursue the criminal proceedings because it had come from a very high ranking superior officer, Mr Hayes, and had been allocated to her by D/Sgt Hayes after discussion between the two. For the above reasons, I reject this submission.

During the trial, and in particular during his closing address, Mr Marinelli sought to make a different case, that SC Douglas acted under perceived, rather than actual, pressure from Mr Hayes. It is important to remember that at the time of Mr Hayes’ involvement, all that had occurred was that Mr Hoctor rang to report that he, Mr Drew, Mr Ectoros and Mr Marinelli were involved in a staged collision and fraudulent insurance claims. There was no special focus on Mr Marinelli at that stage. SC Douglas proceeded to investigate and charge all four individuals. She denied that any pressure was placed on her by Mr Hayes or any other officer in relation to investigating and charging Mr Marinelli. Why SC Douglas would perceive she was under pressure from Mr Hayes to investigate and charge Mr Marinelli in particular was unexplained. I reject this submission.

Mr Marinelli submitted it should be inferred SC Douglas held the view he was a “crook”, and that she was going to get him, which was evidence of spite and ill-will in commencing and continuing the criminal proceedings. Mr Marinelli relied on the following evidence. First, the conversation between Sgt Vandenbosch and D/Sgt Leonardi, in which the latter said of Mr Marinelli, ‘he’s a crook, I’m going to get him’. It was submitted it should be inferred SC Douglas shared D/Sgt Leonardi’s view, and that this inference should more readily be drawn because the State did not call D/Sgt Leonardi. Second was the IR allocated to SC Douglas to follow up in January 2013, sent to her under cover of the email set out at [81], which also referred to Mr Marinelli as a “crook”.

When the conversation between Sgt Vandenbosch and D/Sgt Leonardi occurred, SC Douglas was no longer working at Dandenong CIU, and the criminal proceedings had already been underway for about eight months. I accept SC Douglas’ evidence that she was not aware of any other fraud investigation in relation to Mr Marinelli.

The most that could be inferred from the evidence is that D/Sgt Leonardi believed that the criminal proceedings should be prosecuted against Mr Marinelli for reasons unrelated to the proceedings. However, there is no evidence SC Douglas was aware of the circumstances upon which such a belief may have been based, or that D/Sgt Leonardi held such a belief. In my view there is no basis on the evidence for the inference Mr Marinelli seeks to have drawn. Even if it was open I would decline to draw such an inference because I have found SC Douglas to be a credible witness, and because the inference is inconsistent with the totality of the evidence.

SC Douglas explained the IR was allocated to her for follow up because every IR needs to be actioned and once it was entered into Interpose the connection to her investigation was recognised. She said the email to her summarised the attached IR to give her context. She said “boss” is used to refer to the rank of Senior Sergeant or Detective Sergeant, and in this case referred to D/Sgt O’Brien. She said “crook” was an internal word police use. Sgt Vandenbosch said it was part of police parlance. I accept the evidence of SC Douglas in relation to the IR. I conclude it was allocated to her as a normal part of the Dandenong CIU business.

To succeed with this submission Mr Marinelli must establish that, along with other members of Victoria Police, SC Douglas believed, because of Mr Marinelli’s suspected involvement in other insurance claims and/or his suspected association with motorcycle gangs, he was a “crook”, and this was the reason she commenced the criminal proceedings. Considered as a whole, the evidence does not make out that inference. Mr Marinelli has not established that SC Douglas was motivated to commence the criminal proceedings by unsubstantiated reports of Mr Marinelli’s involvement with motorcycle gangs made months after the proceedings commenced. It is far more likely that she was motivated by a belief that the evidence she had gathered warranted bringing the criminal proceedings.

Mr Marinelli submitted:

… there is uncontroverted evidence that Bill Wintels, an AAMI investigator, provided extensive documentation and information to [SC] Douglas which formed a substantial part of the police brief. It was clear from this AAMI material and from subsequent correspondence that Wintels and AAMI wanted the police and [SC] Douglas to investigate and pursue the fraud claims against Marinelli and that they had reason to do so. The correspondence also show that [SC] Douglas and Wintels were collaborating on an investigation and discussed the “intricacies” of the matter and had opportunity to meet and discuss the investigation. [SC] Douglas knew from the AAMI file she received that AAMI had prior litigation against Ultra Finish. It should be inferred that [SC] Douglas felt some pressure from AAMI and Wintels, a former police officer, to pursue Marinelli. Wintels did not give evidence in this proceeding.

There is no substance in this submission. SC Douglas said she did not see any material from AAMI which indicated there was a vendetta against Mr Marinelli, and she did not get the sense that AAMI were keenly involved in her investigation. She said she asked AAMI to provide material for her investigation, which they and Mr Wintels did, and Mr Wintels made a police statement and gave evidence at the committal. She said she was not in any sense a co-investigator with Mr Wintels, and he was not assisting her undertaking the investigation. It is to be expected that AAMI and Mr Wintels would cooperate with Victoria Police by providing documents relevant to the insurance claims and Mr Wintels’ investigation. It is clear, contrary to Mr Marinelli’s submission, that SC Douglas conducted her own investigation rather than simply rely on Mr Wintels. There is no evidence that Mr Wintels or AAMI sought to pressure SC Douglas to bring the criminal proceedings, or from which it could be inferred she succumbed to pressure from them.

Mr Marinelli has not established that SC Douglas’ dominant purpose in commencing and continuing the criminal proceedings was improper. I conclude the element of malice is not made out.

Conclusion

Mr Marinelli has failed to establish both reasonable and probable cause, and malice. The proceeding will be dismissed. I will hear from the parties as to consequential orders.

[2019] VSC 557

20 August 2019