Noye v Robbins
[2007] WASC 98
•30 APRIL 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: NOYE -v- ROBBINS; NOYE -v- CRIMMINS [2007] WASC 98
CORAM: EM HEENAN J
HEARD: 30 MAY, 1 - 3, 7 - 10, 13 - 17 JUNE, 8 - 9, 12 - 16, 19 ‑ 21 DECEMBER 2005 & 15 - 18 AUGUST 2006
DELIVERED : 30 APRIL 2007
FILE NO/S: CIV 2231 of 1999
BETWEEN: JEFFREY HOWARD NOYE
Plaintiff
AND
STEPHEN JOHN ROBBINS
Defendant
FILE NO/S :CIV 2490 of 2000
BETWEEN :JEFFREY HOWARD NOYE
Plaintiff
AND
LYNETTE BERYL CRIMMINS
Defendant
Catchwords:
Malicious prosecution - Misfeasance in public office - Abuse of process - Injurious falsehood - Criminal prosecution on indictment - Police disciplinary charges for alleged corrupt conduct - Nolle prosequi filed after indictment - Procedures applying when nolle prosequi presented - Functions of counsel
Police disciplinary charges withdrawn - Senior police officer retired from service on health grounds - Police career destroyed - Whether proceedings terminated in plaintiff's favour - Malice - Whether absence of reasonable cause for initiating charges - Whether action for malicious prosecution lies in respect of withdrawal of professional disciplinary charges - Strength of case - Major witness for prosecution of questionable credibility - Lack of apparent motive - Circumstantial case - Significance of prosecutor seeking advice from Director of Public Prosecutions - Whether advice from Director of Public Prosecutions based on all material information - Animosity towards plaintiff by another investigating officer - Animosity of witness towards plaintiff - Exterior agency financing police investigations - False information provided to police by principal witness - Information provided maliciously and to secure favourable treatment for offender - - False allegations a material cause in the plaintiff being investigated and charged - Damages
Legislation:
Criminal Code (WA)
Diamond (Argyle Diamond Miner Joint Venture) Agreement Act 1981 (WA)
Diamond (Ashton Joint Venture) Agreement Act 1981 (WA) (Amended)
Director of Public Prosecutions Act 1991 (WA)
Limitation Act 1935 (WA)
Poisons Act 1964 (WA)
Police Act 1892 (WA)
Police Force Regulations 1979 (WA)
Supreme Court Act 1935 (WA)
Result:
Action CIV 2231 of 1999 dismissed
In action CIV 2490 of 2000 damages of $272,676 awarded for injurious falsehood
Category: A
Representation:
CIV 2231 of 1999
Counsel:
Plaintiff: Mr D P A Moen
Defendant: Mr M T McKenna
Solicitors:
Plaintiff: Halperin Fleming Meertens
Defendant: Hunt & Humphry
CIV 2490 of 2000
Counsel:
Plaintiff: Mr D P A Moen
Defendant: Mr J D Allanson
Solicitors:
Plaintiff: Halperin Fleming Meertens
Defendant: Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
A v State of New South Wales [2005] NSWCA 292; (2005) 63 NSWLR 681
A v State of New South Wales [2007] HCA 10
Assheton v Merrett [1928] SASR 11
Attorney‑General (New South Wales) v Perpetual Trustee Co Ltd (1955) 92 CLR 113
Austin v Dowling (1870) LR 5 CP 534
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Barton v The Queen (1980) 147 CLR 75
Berry v British Transport Commission [1962] 1 QB 306
Bradshaw v Waterlow & Sons Ltd [1915] 3 KB 527
Broome v Chenoweth (1946) 73 CLR 583
Burnett v Tak (1882) 45 LT 743
Cabassi v Vila (1940) 64 CLR 130
Calveley v Chief Constable of Merseyside Police [1989] AC 1228
Cameron v James [1945] VLR 113
Chapel Road Pty Ltd v Australian Securities and Investments Commission [2006] NSWSC 1014; (2006) 203 FLR 322
Colson v Radclyffe (1887) 4 TLR 59
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527
Corea v Peiris [1909] AC 549
Cumberland v Clark (1996) 39 NSWLR 514
Danby v Beardsley (1880) 43 LT 603
Davis v Gell (1924) 35 CLR 275
Diamond v Mansfield [2006] EWHC 3290
Director of Public Prosecutions (South Australia) v B (1998) 194 CLR 566
D'Orta‑Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509
Earnshaw v Loy (No 1) [1959] VR 248
Elliott v Chief Constable of Wiltshire The Times, December 5, 1996
Farrington v Thomson [1959] VR 286
Garrett v Attorney-General [1997] 2 NZLR 332
Glinski v McIver [1962] AC 726
Goddard v Smith (1704) 6 Mod Rep 261; (1704) 87 ER 1007
Grainger v Hill (1838) 4 Bing (NC) 212; (1838) 132 ER 769
Gregory v Portsmouth City Council (1997) 96 LGR 569
Gregory v Portsmouth City Council [2000] 1 AC 419
Grimwade v State of Victoria (1997) 90 A Crim R 526
Hadrick v Heslop & Raine (1848) 12 QB 267
Hall‑Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84
Hicks v Faulkner (1878) 8 QBD 167
Hill v Varley (1923) QWN 23
Houghton v Oakley (1900) 21 LR (NSW) 26
Jenner v Harbison (1879) 5 VLR(L) 111
Joyce v Sengupta [1993] 1 All ER 897
Khodaparast v Shad [2000] 1 All ER 545
Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76
Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122
Little v Law Institute of Victoria (No 3) [1990] VR 257
Mann v Jacombe [1961] NSWR 273
Martin v Watson [1996] AC 74
Maxwell v The Queen (1996) 184 CLR 501
McKechnie v Campbell (1996) 17 WAR 62
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466
Northern Territory of Australia v Mengel (1995) 185 CLR 307
Noye v Robbins [2005] WASC 137
Osterman v Bateman (1848) 2 Car & Kir 728
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450
R v Beveridge (1909) 9 SR (NSW) 676
R v Jell [1991] 1 Qd R 48
R v Lorkin (1995) 15 WAR 499
R v Rowlands (1851) 17 QB 671
R v Sneesby [1951] St R Qd 26
Racz v Home Office [1994] 2 AC 45
Ratcliffe v Evans [1892] 2 QB 524
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129
Roberts v Gray (1897) 13 WN (NSW) 241
Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275
Sharp v Biggs (1932) 48 CLR 81
Skrijel v Mengler [2003] VSC 270
Stevens v Midland Counties Railway (1854) 10 Exch 352; (1854) 156 ER 480
Steward v Gromett (1859) 7 CB (NS) 191; (1859) 141 ER 788
Strickland v Hertfordshire County Council [2003] EWCA 287
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796
Taylor v President of the Shire of Eltham (1922) VLR 1
The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307
The Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95
Tibbs v Islington Borough Council [2002] EWCA Civ 1682
Trobridge v Hardy (1955) 94 CLR 147
Turner v Wright (1880) 6 VLR (L) 273
Van Heeren v Cooper [1999] 1 NZLR 731
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35
Watkins v Lee (1839) 5 M & W 270; (1839) 151 ER 115
Wilkinson v Foote (1856) 5 WR 22
Williams v Spautz (1992) 174 CLR 509
Wilts United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1957] RPC 220
TABLE OF CONTENTS
Introduction and conspectus
The first detailed police report - the Thoy report of 14 December 1990
The Newton diamonds - interpleader proceedings
Other potential sources of pink diamonds
The hydrofluoric acid
Charles Edward Jewellers
The Western Australian Diamond Trust
The position of Argyle
Report of Noye to Zanetti 20 February 1992
Meetings between Sergeant Noye, either alone or with others, with Lindsay Roddan
The turning point in the Argyle diamond theft investigation
Events leading to 19 January 1993
Breakthrough in the investigation revealing complicity of the two Crimmins and Roddan
Confidential police information - the "D'Anna report"
Suspension and criminal charges against Sergeant Noye
The charges against Roddan
Indictments presented
The nolle prosequi
The police disciplinary charges
Causes of action - malicious prosecution, misfeasance in public office, abuse of process and injurious falsehood
Malicious prosecution
(a) The Institution of relevant proceedings
(b) Favourable terminations – filing of a nolle prosequi
(c) The absence of reasonable and probable cause
(d) Malice
(e) Damage
Misfeasance in public office
Abuse of process
Injurious falsehood
The charges against Roddan
The charges against Barry Crimmins and Lynette Crimmins and their convictions
The Roddan conviction
Roddan's sentencing
The committal proceedings against Roddan and Noye
Case against Noye
The involvement of the State DPP
Information available when decisions to prosecute were made
Reports and statements from Inspector Robbins
The Australian Federal Police (AUSTPOLINV) investigation
(a) AUSTPOLINV - Interview - 7 July 1995
(b) AUSTPOLINV - Interview - 27 February 1996
(c) AUSTPOLINV - Interview - 25 March 1996
(d) AUSTPOLINV - Interview - 11 April 1996
Significance of the AUSTPOLINV Review
Robbins' appreciations of the problems confronting the prosecution
Cabassi v Vila
Assessment of Robbins
The outcome of the police disciplinary proceedings
The evidence of Barry Crimmins
Lynette Crimmins and her information
Noye's explanations
The formal prosecution brief
Removal of Noye from duty and later from Police Force
Evidence of former Assistant Commissioner (Crime) Ayton
Copies of the soil analysis reports given by Noye to Roddan
Inspector Lavender
Lynette Beryl Crimmins
The role of Inspector Robbins
The criminal charges
Liability in respect of police disciplinary charges
Liability of Lynette Crimmins
Other causes of action
Abuse of power
Misfeasance in public office
Liability for injurious falsehood
Assessment of damages
Pecuniary loss
Damages for injurious falsehood
Conclusion
EM HEENAN J:
Introduction and conspectus
In this case the plaintiff Jeffrey Howard Noye sues in the first action (CIV 2231 of 1999) Stephen John Robbins, formerly an Inspector of Police but now a Superintendent of Police, claiming damages for malicious prosecution and/or misfeasance in public office, and/or for injurious falsehood. In his second action (CIV 2490 of 2000) Noye is suing Lynette Beryl Crimmins for damages for malicious prosecution and injurious falsehood.
The question arises whether, on the facts alleged, the plaintiff may also have an action for damages against either or both of the defendants for abuse of process. It will be necessary to consider that possibility and its consequences in more detail later in these reasons.
At the material times, Inspector Robbins was an officer of the Internal Affairs Unit ("IAU") in the Western Australian Police Force and he had been assigned by his superiors to investigate allegations against other police officers, including the plaintiff, arising out of their involvement in what became known as the "Argyle diamond affair". Senior Sergeant Noye, as he then was, was a detective who had earlier been assigned to conduct the second of three phases of investigations into alleged diamond thefts from the Argyle Diamond Mines Pty Ltd ("Argyle") diamond operation in the Kimberley region of Western Australia. This was a long running and contentious investigation which had given rise to, and as it developed gave further rise to, intense differences of opinion, rivalries, and mutual suspicions by officers of the Western Australian Police Force who had been involved. This led to allegations of corruption by some officers against, not only Sergeant Noye, but also against many other officers, including officers senior to Noye.
The conduct of the police investigation was, to say the least, unusual and was regarded as inadequate and unsatisfactory by the senior security personnel of Argyle who, throughout the proceedings, attempted to conduct their own parallel investigations. This process led to resentment arising between the police officers conducting the investigations and their superiors on the one hand, and the senior personnel of Argyle on the other. The course of the investigation very quickly led to suspicions being entertained that one Lindsay Gordon Roddan was the major architect of the alleged thefts and that he had corrupted and drawn into the criminal activity a former security officer at the Argyle diamond mine, one Barry Anthony Crimmins, the estranged and then former husband of the defendant in the second action, Lynette Beryl Crimmins.
Nevertheless, extensive investigations conducted by the police failed to prove that there had actually been thefts of diamonds from the Argyle mine or that Roddan or Barry Crimmins were involved in any associated illegal activity. No fewer than three separate police investigations into the allegations were conducted over the space of more than three years. The first two of these operations were inconclusive. The first can conveniently be termed the "Thoy/Gwilliam inquiry" because it was Detective Senior Sergeant Robin Martin Thoy and Detective Sergeant Edward Clayton Gwilliam who led the investigation. It produced no reliable evidence of either theft or of the identity of offenders but it is possible to say that Sergeants Thoy and Gwilliam harboured a deep and intuitive belief that Roddan was involved in criminal activity concerning the Argyle diamond mine. Both were very much in favour of continuing the investigation despite the reluctance of their superior officers to do so after the first Thoy/Gwilliam report.
The second stage of the inquiry resulted from repeated representations and pressure from the senior officers at Argyle to the WA Police Force. Consequently, Sergeant Noye was appointed to work with Sergeant Gwilliam to undertake a revised and new inquiry, with Roddan and Barry Crimmins identified as major suspects. It was not long before Sergeant Gwilliam quarrelled with Sergeant Noye essentially, it appears, because he believed that Noye was not conducting the inquiry aggressively enough or putting sufficient pressure on Roddan or Crimmins notwithstanding that, to that point, there was really no conclusive evidence to implicate either of them in the alleged thefts. From this time on Sergeant Gwilliam became an irreconcilable critic of Sergeant Noye and voiced his criticisms repeatedly to superiors in the Police Force, to other officers and, later, I am satisfied, by leaking details of the investigation to the press. He drew inferences that Sergeant Noye was going soft on Roddan and Crimmins, was failing to conduct a proper investigation, and was disposed to write‑off the inquiry for the corrupt motive of clearing Roddan.
Gwilliam leapt at later suggestions that Noye was acting corruptly and was being, or expected to be, paid by Roddan for producing a report to write‑off the inquiry. He did not keep these suspicions to himself but voiced them loudly to his superiors and to others in the Police Force to such a degree that factions developed. Any who questioned the sufficiency of evidence of corrupt conduct or the malicious influences of Roddan were themselves accused of being involved in the corruption. Those accusations did not stop at the activities of Detective Sergeant Noye and were advanced against senior inspectors and superintendents as well.
It seems that nothing could be done within the Police Force to quell these oft repeated allegations of corruption. Sergeant Gwilliam's allegations evidently gained a measure of attention. This made it very difficult for Sergeant Noye and the other officers supervising the investigations into the alleged theft of diamonds from the Argyle mine to pursue their investigation without recriminations. The problem was exacerbated by a lack of resources to extend the inquiry to degrees which appeared to be obviously necessary – such as to visit Victoria to interview Barry Crimmins, one of the suspects, or to pursue scientific tests in the hope of establishing that certain diamonds which had been seized by the police, and which were believed to have been stolen, were actually Argyle diamond stones.
It was in this atmosphere of internal bickering, accusation and counter‑accusation, and the refusal of Sergeant Gwilliam to participate in the Noye investigation that Sergeant Noye came to prepare his final report. This lengthy document (Exhibit 3) essentially concluded that there was no evidence against either Crimmins or Roddan to implicate them in the alleged thefts; that it could not be proved that the diamonds which had been seized were in fact sourced from the Argyle diamond mine; and, that in the circumstances no further police action should be taken. Sergeant Noye submitted that report to his superior, Assistant Commissioner (Crime) Leslie Donald Ayton, (who had recently been promoted from the role of Inspector and was later, in 1995, to rise to the position of Deputy Commissioner) who conducted a preliminary evaluation of it. He and his deputy did not seem, at least at that stage, to be disposed to query either the investigation or the recommendations.
Shortly afterwards, however, in January 1993 everything changed. Lynette Crimmins, after being involved in a series of acrimonious and violent altercations with Roddan, which led to her arrest, made complaints and statements to the effect that her husband, Barry Crimmins, had been organising a programme of thefts of diamonds at the Argyle diamond mine, and had supplied these diamonds to Roddan who, in turn, arranged for their illegal sale and disposition. She alleged that Roddan had boasted to her of his involvement in this process; that her husband, to her knowledge, had been involved in the thefts; that Roddan had also boasted that the police investigation would go nowhere because he had Sergeant Noye "in his pocket"; and, that Noye was to be paid $200,000 from the proceeds of the thefts.
Lynette Crimmins was not without her own personal animosities. Her marriage to Barry Crimmins had broken down, she had turned to prostitution, and, in addition, she had developed a relationship with Roddan which went as far as her advancing very large amounts of money to him as loans. Roddan appears to have treated Lynette Crimmins badly and had refused to repay the money which she had lent to him. He exploited his relationship with her ruthlessly. When Lynette Crimmins eventually realised how far Roddan had betrayed her she became very angry, got very drunk and went to his house to confront him. A violent altercation broke out resulting in her being injured. She left the house only to return again in the small hours of the morning, when a second disturbance then resulted in the local police being called and Lynette Crimmins being arrested. It was after this incident that she made her accusations against Roddan, Barry Crimmins and, later, Detective Sergeant Noye.
There was also a degree of consternation at the senior command levels of the Police Force because, despite Lynette Crimmins' allegations, there was still no clear and reliable evidence against Roddan or Barry Crimmins, or for that matter against Noye. Apart from the hearsay nature of the information which Lynette Crimmins had supplied, she was undoubtedly animated by extreme hostility towards Roddan. Her behaviour, her lifestyle, her conduct, which at times was near hysterical, and her dubious character made it apparent that her own evidence and allegations would not prove very strong or reliable. Despite all her mixed motives and hostilities, her allegations might nevertheless be true.
The response of the senior command of the Police Force to this new development has itself been criticised as being responsible for further mistakes and problems. It will need to be examined more closely but, for the present, a brief description will be sufficient. Because of the pressures caused by past factions within the Police Force and due to the industrial policy pursued by the Police Union that, the IAU should not be involved in the investigation of inquiries into general crime, as distinct from scrutinising allegations against named or identifiable police officers, a third investigation into the alleged diamond theft from the Argyle diamond mine was established. This was headed up by Detective Inspector Peter Frederick Lavender. His principal assistant was Sergeant Gwilliam who, by then, was an implacable critic of Sergeant Noye and was convinced in his own mind that Noye was corruptly involved with Roddan and Barry Crimmins. His appointment to such a sensitive role seems most inappropriate, having regard to the knowledge of his attitude and methods which existed at that time, but more so in the light of subsequent events and his conduct of the investigations. Although Inspector Lavender was nominally in charge it is clear that most of the initiatives and actions were instituted and directed by Gwilliam. His conduct of the investigation later proved to be impetuous; disruptive of other parallel investigations (yet to be mentioned); and, was associated with much intrigue, including the repeated leaking of information to the press which had the effect of blackening the reputation of Noye eventually beyond recall. Gwilliam was repeatedly counselled by more senior police officers to moderate his behaviour. However, he was impervious to any suggestions of restraint and later, in circumstances which yet need to be put in their full context, gave evidence in the Magistrates Court which led to him, Gwilliam, being charged with perjury.
The second response from the senior command level of the Police Force to the allegations of corruption advanced by Lynette Crimmins was to establish a separate internal review task force led by Inspector Robbins, (the defendant in the first action) and Inspector Syme, but supervised by Superintendent Allan Watson, to investigate and review the allegations against Detective Sergeant Noye who was, from that time on, taken off the case.
The investigations conducted by Inspector Robbins were extensive and lengthy. There were interviews which he conducted with Sergeant Noye. He also had a series of interviews with Lynette Crimmins. He reviewed the reports of the first investigation, the Thoy/Gwilliam inquiry, and of the second investigation, which was reported upon by Sergeant Noye (after Gwilliam had walked out of the inquiry). He also reviewed all the records relating to the investigations of the allegations of the theft of diamonds from the Argyle mine.
Although this is an interruption to the sequence of progress it is nevertheless timely to identify the shortcomings which had been found in the allegations that diamonds had actually been stolen from the Argyle mine. The security authorities at Argyle had formed the view that pink diamonds, which almost certainly came from the Argyle mine, but could not be sourced to the production, processing and sale streams of the mine output, were being sold in diamond centres around the world. Some jewellers in Antwerp, New York and Perth were thought to be selling diamonds sourced from Argyle but not via the proper channels. This led to complaints resulting in a police raid on a jeweller in Fremantle, Noel Norman Newton, and the discovery of a significant quantity of pink diamonds ("the Newton diamonds") which that jeweller was holding on consignment for Lindsay Roddan. Roddan, however, denied that they were diamonds from Argyle. He asserted that he had purchased them from a diamond house in Antwerp, Belgium, via a Theodore Horovitz of Geneva, and he produced invoices, consignment notes and other documents which appeared to show that these diamonds had, in fact, been imported as claimed. Some perfunctory attempts were made to communicate with Horovitz in Geneva but it was, at that time, beyond the resources of the police to travel to Switzerland to conduct an investigation and, for some reason or other, no effort was made to enlist the assistance of the Swiss police. The case assiduously advanced by the Argyle security officers, Corfield and Burton, was that these were diamonds which had been stolen from their company and that sophisticated forensic scientific tests revealed features of the diamonds, and traces of the residual ore which still adhered to them, demonstrating that they indeed came from Argyle. A series of scientific tests had been conducted and reports prepared but these were inconclusive. So the question of the source, and hence the ownership, of the diamonds could not be put beyond dispute.
The Newton diamonds remained in the possession of the police until their ownership could be satisfactorily established. Roddan maintained his claim to the ownership of the diamonds, as did Argyle. Consequently, interpleader proceedings were commenced in the District Court by the police in order to provide a means for the dispute over the ownership of the gems to be resolved. Argyle had its own legal representatives acting in those proceedings. Roddan also had his own legal representatives. The Police Force, as the interpleader, effectively played a neutral role, hoping and expecting that these proceedings would lead to a definite conclusion as to the source and ownership of the diamonds. If this were adverse to Roddan, that would provide the hitherto missing evidence that Roddan had unlawful possession of diamonds which, on that hypothesis, had been obtained from Argyle illicitly.
The problem was, however, that there was virtually no progress being made in the interpleader proceedings. Argyle seemed to have adopted the position that further police investigation would reveal other evidence implicating Roddan in the theft of these and other gems and that, if this occurred, that would resolve both the criminal investigation and the interpleader proceedings. Argyle otherwise did not seem disposed to take any initiative to force the interpleader proceedings to a hearing or determination. On the other hand, the police, by this time effectively Sergeant Noye, who did not have other support or resources available to him, took the view that it was unlikely that the criminal investigation would achieve much progress unless and until the interpleader proceedings had been resolved. As a consequence, Noye sought to encourage those whom he might be able to influence to proceed with the interpleader. Noye's influence was, however, restricted to Roddan because the Argyle security officers were not sympathetic to Noye, taking Gwilliam's side on almost all aspects of the factional disputes. This led Noye into meeting with Roddan in attempts to facilitate the progress of the interpleader. These meetings between Sergeant Noye and Roddan, ostensibly about the interpleader, were most ill‑advised and indiscreet on Noye's part and strengthened the belief that inspired Gwilliam and others to suspect that Noye was acting improperly and had a corrupt association with Roddan.
In the events which happened the interpleader proceedings were not determined and, so I was informed during the course of evidence in this case, still remained pending in the District Court. However, Roddan exploited these meetings with Noye by enquiring about the progress of the case, the nature and strength of the scientific evidence about the source of the seized diamonds. Accordingly, this allowed Roddan to gauge the strength of the case against him. He maintained his denials and appears to have been confident that neither the police nor Argyle would be able to succeed in proving that the seized diamonds had indeed come from Argyle.
This long trail of evidence and investigations concerning the source of the seized diamonds, and disputes over their ownership, were all materials which were examined by Inspector Robbins and his assistants during the course of his investigation into the allegations of corrupt conduct against Noye.
The next major breakthrough came in April 1993 when Inspector Robbins, in company with an officer of the Victorian Police Force, visited Barry Crimmins, who was then living and working in Shepparton in Victoria. At the time of this interview Barry Crimmins made no actual admissions, but he appears to have been shaken. The meeting concluded on the footing that Crimmins would think about his position. His reaction led Inspector Robbins to conclude that he may be close to a breakthrough. Further, certain observations which Barry Crimmins made during the course of that interview caused Inspector Robbins to entertain more serious suspicions of Sergeant Noye. In particular, Crimmins told Robbins that on about 19 November 1992 Noye had visited him in Shepparton, had spoken in a round‑about way about the Argyle diamond investigation, and, after ingratiating himself with Crimmins, stayed at his home that night. Barry Crimmins, himself a former Victorian police officer, was very suspicious of Noye's conduct. Having been told by his wife, Lynette Crimmins, that Roddan boasted of having Noye "on side" and on his payroll, he came to the conclusion that Noye was in Shepparton to cover his tracks and to provide a whitewash which would justify his conclusion to write‑off the investigation and the report which, by then, Noye had submitted to his superiors.
There is clearly a gap in the evidence of what transpired in these dual police investigations. I have no doubt in concluding that I have not heard the full story of exactly what happened and the events which led to the next breakthrough. In what appears to be the result of initiatives taken by Detective Sergeant Gwilliam and the security officers from Argyle, Barry Crimmins agreed to be interviewed by the police on 29 August 1993 in Kununurra – the town nearest to the Argyle mine. The explanation for this, so far as was given in these proceedings, was that Crimmins had worried about his position following the approach from Inspector Robbins in Shepparton. He had reached the conclusion that, before long, his role in the events would be discovered and therefore it would be preferable for him to co‑operate with the authorities. He was also due to come to Western Australia to attend his daughter's twenty‑first birthday and a deal of some kind was plainly struck which would allow him to come to Western Australia, be interviewed by Sergeant Gwilliam and others at Kununurra and then, regardless of the outcome, attend his daughter's twenty‑first birthday party before any charges might be laid against him.
The detail of exactly what inducements were held out to Crimmins, and what role Gwilliam took in this, has not been disclosed but I have no doubt that a variety of incentives was given. It has not been possible to identify or to determine anything further than this because none of Gwilliam, Barry Crimmins, or any of the security personnel at Argyle was called as a witness at this trial. However, it appears that Richard William Corfield and John Sebastian Burton, Argyle's manager of security and superintendent of security respectively, were instrumental in the continuing investigations and to have supported Gwilliam and his initiatives throughout.
For reasons which will emerge, it is entirely understandable why no person sought to call Gwilliam as a witness because, as has already been indicated and as will appear more fully later, his objectivity throughout these events has been called into serious question. Barry Crimmins, who might have been expected to support the defendant's cases, has not been called. As a person subsequently convicted, on his admission, of thefts of diamonds from Argyle it can probably be concluded that if Crimmins had been called, it is unlikely that he would have been treated as a completely reliable witness. The absence of Corfield, from Argyle, can be explained, perhaps superficially, by the fact that he was not present at any of the discussions with Crimmins. This, however, does not dispel the inference that he could probably have revealed relevant information about the course of events which led to Barry Crimmins admitting to Inspector Robbins and Sergeant Gwilliam, at the Kununurra interview, that he had indeed stolen diamonds from the Argyle mine and had supplied the diamonds to Roddan in return for payment.
Apart from his descriptions of what appeared to be incongruous conduct by Sergeant Noye when visiting him in Shepparton in November 1992, Barry Crimmins had no knowledge or information which could be regarded as evidence capable of implicating Noye in corrupt conduct with Roddan.
Barry Crimmins was charged with offences relating to the theft of diamonds from Argyle. Lynette Crimmins was also charged with related offences. They were indicted and each pleaded guilty to those charges on arraignment before the District Court of Western Australia. Barry Crimmins was sentenced to imprisonment and has since served that sentence. Lynette Crimmins was released on a conditional bond. Each agreed to provide evidence against Roddan, implicating him in an unlawful conspiracy to steal diamonds from the Argyle diamond mine and to distribute them unlawfully in Western Australia and elsewhere. They also agreed to give evidence against Noye. Because of her role in initiating the complaints against Roddan, and then providing evidence against him at his own trial, Lynette Crimmins was placed on a witness protection programme and continues in that programme under a new name. Certain behaviour by her whilst in the witness protection programme, which emerged in the course of her cross‑examination, revealed that she continued to experience trouble of various kinds and that she had a tendency to make extreme allegations against persons whom she regarded as being antagonistic towards her.
Before the Kununurra confession of Barry Crimmins, Gwilliam's task force moved on Roddan searching his home on 10 August 1993. He was then arrested and charged with offences involving conspiracy to steal diamonds from the Argyle diamond mine by Sergeant Gwilliam. The timing of this arrest, before Barry Crimmins' confession in Kununurra, is perhaps significant as will be seen later. In fact, Gwilliam acted so quickly in this regard without liaising with Inspector Robbins who was still conducting the twin investigation into the allegations against Noye, that Robbins regarded his actions as impulsive and premature. Roddan was eventually put on trial having pleaded not guilty to the charges. He was convicted after having been found guilty by verdict of a jury and was sentenced to imprisonment. Evidence against him at his trial was given by both Barry Crimmins and by Lynette Crimmins.
One of the undesirable side effects of the arrest and charging of Roddan by Sergeant Gwilliam and his task force, without prior co‑ordination with Inspector Robbins, was that the arrest of Roddan was followed by considerable publicity alleging that one or more senior police officers involved in the long running investigation in the Argyle diamond thefts, which, itself had received publicity over the years, were implicated in corrupt conduct concerning the diamond thefts and the police investigation. These speculations in the press pointed clearly enough towards Noye, although he was not at first explicitly identified. I have little doubt that this information was leaked to the press by, or at the instance of Gwilliam or by members of his staff and, perhaps by the Argyle diamond security staff.
The evidence includes a large body of press articles, in the period shortly following Roddan's arrest, particularly in The Sunday Times, raising these speculations and implying that the Police Force was failing to act adequately in relation to corruption within its own ranks. In the light of this press campaign, and given the constant leaks from the police task force which had charged Roddan, I have no doubt that an atmosphere of crisis developed within the Police Force about how to deal with the allegations of corruption against Noye. This gave rise to a feeling of public expectation that the matter needed to be resolved quickly and decisively.
Noye had constantly denied any illegal, improper or corrupt conduct and the case against him was largely circumstantial. The most adverse circumstances possibly pointing to unlawful conduct on his behalf are as follows:
(a)The frequency of his meetings with Roddan which, after Gwilliam withdrew from the investigation, he ill‑advisedly conducted alone.
(b)His recommendation in the final version of his report to his superiors that the Argyle diamond theft investigation be written‑off because of lack of evidence to support the conclusion that there had been any theft or that Roddan was in any way involved.
(c)His delivery to Roddan of a copy of the scientific expert evidence prepared by Argyle for use in the interpleader proceedings in order, so Noye said, to allow Roddan to proceed more expeditiously with the determination of the interpleader proceedings which, so Noye claimed, was the best opportunity to determine the ownership of the seized diamonds.
(d)His visit to Barry Crimmins in Shepparton, without the knowledge of his superiors, after the final report recommending the discontinuance of the Argyle diamond inquiry had been submitted; and
(e)The apparently ambiguous conduct of Noye while staying with Barry Crimmins in Shepparton.
Lynette Crimmins' evidence against Noye, at first amounted only to her assertions of what Roddan had told her about the involvement of Noye in the conspiracy. There are, however, statements which Lynette Crimmins made at later stages of the investigation to the effect that she was present at meetings with Roddan and Noye at which the two openly discussed receiving money and dividing the diamonds between them. These allegations were denied by Noye and were not made by Lynette Crimmins until considerably later.
Barry Crimmins' evidence did not at first involve any direct implication of Noye in improper conduct or in the implementation of the conspiracy to steal diamonds. Rather, it depended upon Crimmins' characterisation of Noye's visit to Shepparton in November 1992 as incongruous and consistent with what he had been told by Lynette Crimmins of Roddan's allegations about Noye's participation in the conspiracy.
I have no doubt that, in all the circumstances, any seasoned investigator would have unhesitatingly realised that the testimony of Lynette Crimmins was very fragile and that it would be surprising if her credibility withstood a challenge in any court proceedings which might come to pass. The most that Barry Crimmins' evidence could then add to the case was another circumstance which might or might not be regarded as revealing incongruous behaviour by Noye arising from his visit to Shepparton. Later, after Noye had been charged, Barry Crimmins gave an amended statement to the police which, for the first time, described a conversation at Shepparton between Noye and Crimmins. The conversation, which occurred at night, included an ambiguous statement by Noye, which, on one interpretation, might be regarded as an oblique admission of corrupt conduct.
Such was the climate of press criticism against the police arising from the prolonged Argyle diamond investigation, which had only resulted in an arrest after two earlier inquiries had been written‑off by the police themselves, that leaders of the two task forces, dealing separately with Roddan and with Noye, thought it proper to obtain advice from the State Director of Public Prosecutions ("DPP"). The details of the advice given in relation to the appropriateness of charging Roddan at the time, and the sufficiency of the case against him, has not been disclosed in evidence in this case. However, the fact that advice on those matters was sought and was given did emerge.
In addition, Inspector Robbins sought advice about whether or not it was appropriate to charge Sergeant Noye with offences of corruption arising from his conduct in the Argyle diamond mines investigation. The advice which he was given was that not only was this appropriate but that it was his duty to do so. The advice which was given came from Mr George Thomas Warren Tannin SC, now a senior State counsel, but then a senior prosecutor on the staff of the DPP. Evidence to similar effect was given by another legally qualified senior member of the DPP's staff, Ms Susan Elizabeth Walker (then Mrs Lightfoot). Neither Mr Tannin nor Ms Walker was called or cross‑examined in these proceedings and their evidence comprises only written statements (Exhibits 154 and 156). Inspector Robbins readily acknowledges that, despite advice which he received from sources which he could be expected to respect and esteem, the responsibility for laying any charges rested with him personally. However, he points to the advice received from the representatives of the DPP to show that he was acting reasonably, responsibly and without malice. His counsel submits that this evidence corroborates his claim that there was then, objectively, reasonable and proper cause to lay the charges.
What has not emerged, however, is what was the actual evidence, as distinct from allegations, which was submitted to the officers of the DPP for evaluation when advice was sought as to whether or not there was a sufficient case to charge Sergeant Noye. It appears that no formal brief or proofs of evidence were then prepared or available and submitted to the DPP. Therefore, it seems that the advice which was given by the officers of the DPP was largely by word of mouth and based on oral briefings which they had received about the parallel cases against Noye and Roddan. It is not without significance that in advising on the case against Roddan, the DPP's office received briefings from Sergeant Gwilliam and his team which, I have no hesitation in concluding, were extremely adverse toward Sergeant Noye. At that stage, the depth of the animosity by Gwilliam towards Noye had not become fully apparent and was, I conclude, little known to the advisers at the DPP. Had it been more fully known, there would certainly have been occasion for more caution and reserve being exercised. In retrospect, there should have been considerable restraint exercised before accepting or acting upon allegations put forward against Noye by Sergeant Gwilliam or sources closely associated with him.
This was a second serious and unfortunate by‑product of the original decision to divide the responsibility of the investigation of all aspects of the diamond thefts between the Gwilliam task force, on the one hand, and the Robbins task force on the other. I am satisfied that Inspector Robbins realised the vehemence and antipathy of the attitude of Gwilliam towards Noye and attempted to dissociate himself from this. However, having regard to the informal nature of the approaches to the office of the DPP by representatives of both task forces, and the press generated public climate of suspicion directed towards the police operations, the exigencies of the situation were that the DPP was effectively being asked to advise the Police Force generally as to the best way of handling the overall situation. As a result, the need to scrutinise independently, and from the standpoint of the existence of admissible evidence only, the strength of the case against Noye seems to have been underestimated. This is a very unfortunate consequence, which reflects poorly upon the structure of the investigations. I am satisfied, however, after all the evidence has been weighed, that it was more or less an inescapable consequence of the way the investigations were organised within the police hierarchy and how divided (and antagonistic) commands were delegated to the two task forces involved each of whom had direct access to the DPP.
In the light of these recommendations, and on his own appraisal of all the materials available to him, Inspector Robbins decided that Sergeant Noye should be charged with indictable offences alleging corrupt complicity with Roddan, and concealing and suppressing evidence arising from his investigation of the Argyle diamond affair. Noye was charged with these offences by summons by Inspector Robbins, in the presence of Noye's solicitor on 12 November 1993, and was immediately suspended from duty. Roddan was also charged with offences relating to conspiring to corrupt the police investigation.
A few days after being charged with the offences relating to corrupt conduct in connection with the Argyle diamond affair, Sergeant Noye was also charged with a series of police internal disciplinary offences which, so it was claimed, had come to light as a result of the detailed investigations into his conduct. These are set out later in these reasons. These internal disciplinary charges were actually laid by Inspector Dawson, and not Inspector Robbins. However, there is no doubt that it was Inspector Robbins' investigations which led to the recommendation that charges be laid. It was because of internal police allocation of duties, that the actual charges were laid and pursued by another officer.
Sergeant Noye was then obliged to appear before the Court of Petty Sessions in Perth to answer these charges. Roddan also appeared on related charges at the same hearing. At this hearing, Mr Lloyd Patrick Rayney of the Office of the DPP appeared for the complainant and made an extended submission outlining the alleged depth and gravity of Sergeant Noye's involvement in corrupt conduct and of his collusion with Roddan, whose activities had caused the corruption of police investigations up until that point. In the light of the events which were happening at the time, I have concluded that the statement to the court by the prosecutor on this occasion had more to do with managing the overall situation, and the clamouring press, by demonstrating that the police and the authorities were taking rigorous action in the face of all the public allegations. With the benefit of hindsight, this was more than was merited on a realistic assessment of the strength of the case against Sergeant Noye at the time. However, by then the influence of Sergeant Gwilliam and his supporters had gained the ascendancy and the explanation almost certainly lies in the allegations which were being made to the prosecutors from those quarters. Again, the problem of divided commands, and of allowing a person with such entrenched hostilities towards Noye a leading role in the investigation, shows both the error and inadequacy in command oversight.
The disciplinary charges laid against Noye also remained pending. The explanation for the inactivity of both the proceedings on indictment and the disciplinary charges against him was that it was necessary first to dispose of the charges against Barry and Lynette Crimmins and against Roddan.
When that eventually occurred, and with no more than a day's notice, the DPP presented a nolle prosequi to the District Court on the indictments against Noye. Those prosecutions therefore ended and he was discharged from any further restraint in respect of them. Also, shortly afterwards, all the police disciplinary charges against Sergeant Noye were discontinued. However, his career within the Western Australian Police Force was ruined. He was offered an opportunity of resigning from the force on health grounds, which, inevitably in the face of the end of his career as a result of these allegations was the only decision which he could make in the circumstances. Since then he has commenced these proceedings, which were originally associated with similar proceedings brought by Roddan. I severed the two sets of claims after the decision which I gave in this case on 31 May 2005: [2005] WASC 137.
Essentially, it is Noye's case that the prosecution and the disciplinary charges were instituted against him by Inspector Robbins; that they were brought maliciously; that they were brought without any reasonable or probable cause; that they have been resolved, as far as they are capable of being resolved, in his favour without conviction; and, that the charges have caused him loss and damage in respect of which the action is maintainable. Noye has relied on an additional cause of action of misfeasance in public office in his claim against Inspector Robbins and has also alleged injurious falsehood. In his related action against Lynette Crimmins he has alleged malicious prosecution and injurious falsehood. In effect it is Noye's case that it was malice and false accusations on the part of Lynette Crimmins which, in effect, caused Inspector Robbins to lay the original charges.
This long recitation then sets the stage upon which to examine the particular allegations, the nature and cogency of the evidence against Noye, the course of the Argyle diamond stealing investigations and the manner in which the decisions were ultimately taken for charges to be laid. It is a long and complicated history of events.
The first detailed police report - the Thoy report of 14 December 1990
This document, Exhibit 149, is important because it reveals the complexity of the initial police investigation, the difficulties which were encountered in its pursuit, and a good deal of the mutual animosities and hostilities within the Police Force which led to the closing down of the inquiry, at the direction of Superintendent Dalton, very much against the wishes of the investigating officer Sergeant Thoy.
This report describes the origin of the initial complaint by Argyle Diamond Sales Pty Ltd (a wholly owned subsidiary of Argyle) to the police, the structure of the diamond production and selling business of Argyle, and earlier police inquiries. In late 1989, Corfield, the manager of security of Argyle, had spoken directly to Chief Superintendent Brian Illingsworth about the suspicious appearance of pink diamonds in Antwerp, Belgium, which were believed to have been illicitly sourced from the Argyle diamond mine. Chief Superintendent Illingsworth instructed Sergeant Grieve, on 11 November 1989, to initiate an inquiry and this was conducted by Detective Senior Constable Castlehow of the Bureau of Criminal Intelligence ("BCI"). It was documented in a report on 15 December 1989.
From 1985 until October 1989 the Ashton Joint Venture ("AJV") was operated by Argyle, and effectively owned by CRA Exploration Ltd ("CRA") as to 60 per cent; Ashton Mining Ltd ("Ashton") as to 35 per cent; and, the Western Australian Diamond Trust ("WADT") as to 5 per cent. The WADT was an offshoot of, owned and controlled by the then Western Australian Development Corporation ("WADC"), until its 5 per cent share in the AJV was purchased by Ashton in October 1989. The joint venture was conducted under the provisions of the Diamond (Ashton Joint Venture) Agreement Act 1981(WA) (now the Diamond (Argyle Diamond Mine Joint Venture Agreement Act 1981 (WA)).
The diamond extraction operations were all conducted at the Argyle mine near Kununurra and the diamonds, both industrial and gem‑quality stones, were sorted and packed under strict security conditions at the mine site. This included the treatment of gem‑quality diamonds by the process of acidisation (with hydrofluoric acid) to clean and remove adherent particles of Kimberlite. The diamonds were then sent to Perth where the WADT selected a representative 5 per cent of the diamonds delivered as its share of the product, which it arranged to market and distribute separately. It is not exactly clear how the other AJV partners marketed and distributed their 95 per cent of the diamonds but, at least in relation to the gem‑quality diamonds, it appears that these were delivered to the Diamond Trading Company of London - an affiliate of the De Beers organisation. All the gem‑quality diamonds produced by Argyle went to De Beers, who then shipped them overseas and mixed the Australian diamonds with other diamonds purchased from around the world and sold them in pre‑selected batches to special dealers who had no right of individual selection. It was, therefore, extremely difficult, if not impossible, for a purchaser to acquire a large selection of gem‑quality Argyle diamonds from the De Beers organisation. Various experts in the international diamond trade were consulted who gave it as their opinion that it would be very difficult for any diamond dealer operating in Perth to acquire, lawfully, a large quantity of uncut gem‑quality Argyle diamonds.
The 5 per cent of the diamonds produced which were received by the WADT were, however, treated differently. Significant numbers of the industrial quality diamonds were delivered to East West Diamond Products Pty Ltd ("East‑West") of Kalgoorlie, a company owned, as to 51 per cent, by the WADC. That company manufactured diamond drill bits for the mining industry and, during the mid 1980s, its main source of industrial diamonds was the WADT. The marketing arrangements for the WADT gem‑quality diamonds do not appear ever to have been fully discovered. However, a significant quantity of the WADT gem‑quality diamonds was supplied to the firm Arslanian Freres in Antwerp, which had been contracted by the WADT to dispose of the 5 per cent of the gem‑quality diamonds which it received from Argyle. Corfield, of Argyle, had discovered that Arslanian Freres had complained to the WADT that the gem‑quality diamonds which were sent to them for distribution in Antwerp were of inferior quality and not representative of the best gem‑quality Argyle diamonds available through De Beers - the implication being that somehow, somewhere, the good quality WADT Argyle diamonds were being "creamed off" to other sources.
It was against this background that the police discovered a quantity of uncut diamonds, in the possession of a Perth jeweller, Noel Newton, of Perth Diamond Cutting Works in Fremantle. The jeweller explained that he had received the diamonds on consignment from Lindsay Roddan, the owner, and that he was cutting them at Roddan's direction. Under some informal arrangement these diamonds were examined and analysed by CRA scientists, who noted that three of the rough diamonds were pre‑acid and that one, a 9.95 carat stone, was of top quality. After testing, which indicated that some of the stones appeared to have come from Argyle, the diamonds were returned to Newton.
Further inquiries revealed that there were a number of invoices and consignment notes from the international diamond dealer, Theodore Horovitz of Geneva, indicating that some 132 carats of rough diamonds had been sent by Horovitz to one of Roddan's companies. Further investigations revealed that Horovitz had transferred large sums of money into the account of another of Roddan's companies, and that during the period November 1988 to July 1989 some $395,000, or thereabouts, had been paid by Horovitz to one of the companies of which Roddan was a director. According to Roddan and Horovitz, those diamonds were purchased by Horovitz in Antwerp and comprised diamonds from several sources including Kalimantan, Brazil, Botswana and Australia. The expert advice to the police from the diamond trade was that it was very unlikely that such a quantity of Australian diamonds could be purchased in Antwerp. The scientific investigation suggested that two of the stones found at Newton's premises came directly from the Argyle mine. When contacted by telephone in Geneva, Horovitz maintained that he had not sent Roddan Australian stones and later identified the pink diamonds as those he had purchased for Roddan from a dealer for Freeport (Normandy Poseidon Ltd), in Antwerp.
In February 1990 Sergeant Thoy was approached by the BCI to handle the inquiry and efforts were directed to attempting to establish some link between Roddan and an employee at the Argyle mining site which might explain how Roddan came into possession of what were believed to be pink Argyle diamonds. Roddan was interviewed and listening devices were installed at his premises, but he maintained that all his diamonds came from Horovitz in Geneva. On 26 February 1990 a search warrant was executed at Newton's diamond cutting works in Fremantle and a quantity of rough diamonds was seized and examined, leading to the belief that most of them were of Argyle origin. These, too, were diamonds held by Newton on consignment from Roddan. Newton went on to say that he had cut and polished approximately 150 to 200 rough diamonds for Roddan and that these had been of good quality. At this point the police firmly believed that the Newton diamonds, received on consignment from Roddan, had been illicitly sourced from Argyle, but they had not established how that could have occurred.
The two chief possibilities, which were the subject of the investigation, were that diamonds were being stolen direct from the mine site for illicit distribution, or that gem‑quality diamonds were being illicitly diverted from the WADT stocks. It was thought unlikely that such large quantities of uncut gem‑quality Argyle diamonds could be purchased from lawful dealers in Antwerp. Further, the apparent dispatch of quantities of diamonds from Horovitz in Geneva to Roddan was thought to be a cover to provide an explanation for the possession of much larger quantities of Argyle stones by Roddan than could credibly be explained as coming from that source.
The police then turned their efforts to identifying a person or persons on the staff at the Argyle mine who might be involved in illicitly supplying diamonds from that operation. To this end Sergeant Thoy liaised with Corfield and, at his recommendation, involved the security officer at the mine site, Barry Crimmins, in the investigation. As a result Crimmins was fully briefed and was supplied with all the pertinent facts, including the names of Roddan, Horovitz, Newton and others, and was told of potential suspects in the diamond sorting area. He was asked if he suspected any person at the mine site but, apart from suggesting one potential subject who when investigated proved innocent, he expressed no knowledge of, or suspicion of, any person and did not divulge any knowledge of or, association with, Roddan.
At this point Sergeants Thoy and Gwilliam wished to place listening devices in the rooms of certain suspects at the mine site and, when they submitted that request, were told to brief fully the officer in charge of the inquiry - Superintendent Dalton. Dalton had previously ordered that the inquiry be strictly confined to the area relating to the Newton diamonds discovered and had stated that the inquiry should be wound down. This was the beginning of the development of hostility and suspicion by Sergeant Thoy towards Superintendent Dalton. This was also associated with ongoing arrangements under which Argyle was to contribute to the costs of the police investigation. Sergeant Thoy complained to Superintendent Dalton that, when Argyle was dealing with Assistant Commissioner (Crime) Scott about this matter, Scott disparaged him.
Also, at this point, Roddan was demanding the return of the diamonds which had been seized from Newton's workshop and had engaged lawyers to pursue their recovery. In discussions with his lawyers and the police, Roddan had suggested that some of the diamonds might have come from another nearby Kimberley prospect - Wesley Creek Springs - rather than from the Argyle mine site.
After making enquiries at the Argyle mine site, Thoy and the inquiry team returned to Perth. When briefing Superintendent Dalton they were again requested to wind‑up the inquiry. Although they maintained that further investigation was necessary according to Thoy, Superintendent Dalton still insisted that the matter be finalised and would not authorise further enquiries from Horovitz in Geneva.
Thoy and his team maintained that they needed to examine the records of the WADT in order to establish whether any diamonds had been sold from that source to Roddan, Horovitz or to other potential suspects. The team's investigations had involved checking the Ashton records of diamond stock transits and shipments. This led to them recommending that a detailed audit of both the Ashton records and the WADT diamond records should be undertaken. However, Superintendent Dalton refused to authorise this and directed Sergeant Thoy to cease the accounting exercise, maintaining that Ashton should undertake its own audit. After some discussions CRA and associated companies agreed to authorise and finance an audit of the WADT records and no objection to this course was initially raised by Thoy's superiors. While this was taking place Sergeant Gwilliam was transferred to other duties at the Belmont CIB, despite strong protests from Sergeant Thoy.
Arrangements proceeded for a firm of chartered accountants, Coopers & Lybrand, to be engaged by Argyle to examine the books of the WADT. Several meetings were held to establish a procedure and on 24 April 1990 a search warrant was executed at Ashton's premises to seize all of its books, records and correspondence relating to the diamond productions. A seizure of documents from the WADT was also executed. However, while this was occurring, Superintendent Dalton demanded to know why the books were being seized and on 26 April 1990 convened a conference, in the presence of Superintendent Farrell, demanding to know why Thoy's team had seized the books of the WADT. In the process Dalton questioned the validity of the search warrant. Superintendent Dalton protested that Sergeant Thoy had not complied with his previous instructions to confine his investigation to the area of diamonds seized and again emphasised strongly that the police should not be involved with the audit as that was the responsibility of Argyle. Also, the two superintendents were not persuaded of the necessity for the police to go to Kalgoorlie to seize books from East‑West, or from other agencies, and insisted that the investigation should halt there.
The next day, 27 April 1990, Superintendent Farrell conveyed to Sergeant Thoy specific instructions that there was to be no further outside inquiry; that Argyle was to audit the books itself first; and, that Kalgoorlie enquiries were to be left until the result of the audit was known. Thoy protested that the conduct of the investigation was being taken out of his hands and that he could not honestly continue on the inquiry under such conditions. Thoy formed the belief that he may be in breach of the criminal law if he complied with those instructions, which he believed were inconsistent with his duty to investigate apparent criminal conduct, and sought independent personal legal advice.
Independently, Argyle was proceeding with the audit of the books and the auditors contacted Thoy to request access to the East‑West books. Sergeant Thoy told Superintendent Farrell about this and that the managing director of Argyle and Corfield, its manager of security, had made an appointment to see the Commissioner of Police on 9 May 1990. As a consequence, it was necessary that the Commissioner should be fully briefed before that visit.
On 8 May 1990 Sergeant Thoy was approached by Chief Inspector Trewin and Inspector Adrianus Storm (later Superintendent Storm) who required an immediate briefing on the Argyle inquiry. Sergeant Thoy said that Superintendents Dalton and Farrell had been fully briefed but was told that Dalton was on leave and that those two senior officers were under instructions to brief the Commissioner before the meeting with the Argyle managing director. At the briefing which was subsequently conducted, the two inspectors stated that Superintendent Dalton's former instructions were to be adhered to.
A further briefing with Chief Inspector Trewin and Inspector Storm was held on 14 May 1990 and was also attended by Sergeant Gwilliam. This led to a meeting attended by the two inspectors with representatives of the auditors and Mr Corfield on 15 May 1990. At that meeting Inspector Storm stated forcefully that it was Police Department policy not to be involved with audits and that, in his opinion, there was insufficient evidence to continue. In the presence of the auditors and Corfield, Inspector Storm stated that the search warrant executed by the inquiry officers had not been justified. This caused concern to the auditors over what their obligations were in relation to the materials which had been delivered to them for examination. All this was said, notwithstanding the preliminary report from the auditors stating that their initial perusal of the books had revealed a number of discrepancies and unusual items in the books and records of the WADT involving diamond stock on consignment to Arslanian Freres and to East‑West.
At this point, Thoy was adopting the position that his conduct in the inquiry had been compromised, his credibility questioned and that he had been told that he had no authority to issue the search warrants. Consequently, he took the view that he was no longer in charge of the inquiry and told Corfield this. Corfield complained to Chief Inspector Trewin that Sergeant Thoy "was off the inquiry". Despite Thoy's continuing protests about the manner in which the inquiry was being directed by superior officers, he was given a direct order that he was to continue with the inquiry on the terms which had been dictated.
Unhappily, dissatisfaction developed between Argyle and the police over the further management of the inquiry, leading to complaints being made by Corfield. A further meeting with Inspectors Trewin and Storm and Sergeant Thoy was held. Thoy was directed by Storm that he could continue the inquiry at his discretion, but that he was not to travel to Kalgoorlie and that no search warrants were to be issued.
In early June 1990 the police learned that the accountant for WADT had resigned and was planning to leave the country on an extended holiday, but no permission was granted to interview the accountant until the audit had been completed. A second audit report of 7 June 1990 was produced which revealed a problem regarding the recording of the outward movements (sales) of the diamonds to other parties. Attempts were made to reconcile the deficiencies in the records and to estimate missing quantities of diamonds, but it was felt that this reconciliation could not be conducted without seizing the other books from WADT to complete the audit. A further problem arose about the costs of the inquiry and whether Argyle should continue to finance the investigations, resulting in CRA deciding to continue the audit at Argyle's expense. At this point, information was received from Argyle's Antwerp office that an Israeli diamond merchant had approached the European sales office to advise that a firm he represented (Inter‑Mark) had been buying the better quality Argyle diamonds from the WADT. On being questioned, the Israeli diamond merchant became secretive about the source of the Australian diamonds. However, this, with other inquiries, led to information being received that the Israeli diamond merchant had been buying WADT stones from within Australia and that there had been a significant leak of stones from the WADT. At this point Thoy and Gwilliam, evidently with higher approval, travelled to Kalgoorlie to interview personnel associated with East‑West and to seize their records to allow the audit to be completed. As it turned out, the East‑West records were poor and did not establish the movement of diamonds to and from the WADT.
After that, a further staff member was needed for the investigation team and a request was made for Sergeant Gwilliam to be reappointed as he had returned from leave. This prospect was put to Inspector Storm and was referred to Superintendent Dalton on 2 July 1990.
At this point, there was an unexpected break in the investigation. An informant supplied information to Sergeant Thoy that Barry Crimmins and Lindsay Roddan were good friends and that Crimmins, on occasions, had visited Roddan's home. Thoy immediately alerted Corfield at Argyle to this revelation and gave instructions that no more sensitive information was to be passed to Crimmins. The informant's story was checked and confirmed and then led to the immediate realisation that there were two parallel courses of inquiry which needed to be pursued. One was the suspected theft of diamonds from Argyle and the supply of them to Roddan. The second was the apparent discrepancies and the diversion of diamonds from WADT to the Israeli diamond merchant and, possibly, to Antwerp or Horovitz in Geneva.
With the seizure of the additional records and supply of them to the auditors, a final audit report of 26 July 1990 was prepared. This suggested a shortfall of 252 carats of diamonds during the period until the WADT was taken over by Ashton. It was believed that there were irregularities in the reports prepared by the accountant at the WADT. There were also apparent irregularities in stock, comprising diamonds "written off", and there was reason for concern about the movement of diamonds within the WADT. At this point Argyle decided that they should cease funding the audit investigation because it appeared that the problem which had been revealed was external to Argyle and concerned the operations of the WADT. Investigations of former staff at the WADT had revealed that certain stones had been separated from the main stock and retained for local sale and evaluation, but there was no record of how or to whom these were sold. However, a witness had provided a statement that pink diamonds were removed from the WADT shipments and sent directly to the WADT representative in Antwerp.
By now, Argyle was expressing further dissatisfaction in the delay occurring in the inquiry and, in particular, because Barry Crimmins had not been interviewed by the police. Corfield called on Superintendent Ghockson at the CIB to express concern about this apparent inaction. Another police officer, with little experience in the inquiry, was instructed to interview Crimmins in Sergeant Thoy's absence whilst on leave. On his return, Thoy protested about this decision which apparently caused resentment and irritation to Superintendent Ghockson.
In any event, Crimmins was later interviewed and when the name "Roddan" was mentioned, he immediately recognised it and asked why it had never been mentioned to him before. He denied that Roddan's name was spoken of at the first meeting in Corfield's office and denied being involved in the theft of diamonds from the mine. His premises were searched but nothing was found. Corfield then interviewed Crimmins at Argyle's office and he again denied ever having heard the name "Roddan" mentioned previously in interviews with the police or with Corfield. Corfield did not accept this and became more suspicious of Crimmins as minor details of his story changed over time.
On 13 November 1990, Crimmins was again interviewed; this time by Sergeant Thoy in the presence of Sergeant Von‑Palske. He was told that he was suspected of being involved in unlawful activities at the Argyle mine site and that he may have been responsible for the theft of the diamonds found in Newton's possession, but he denied this. He became upset and angry when the police expressed a desire to interview his wife. He ultimately resigned from his position at Argyle.
The fate of the Newton diamonds remained the subject of litigation. The interpleader was to come on for mention before the District Court on 30 November 1990 and it was expected that if the proceedings continued, police officers would be required to supply affidavits or give evidence. At this point in his report, Sergeant Thoy wrote that his inquiry, "audit to fruition", was still incomplete. In his view, the matter of the audit and the shortfall of 252 carats of diamonds from the WADT required further urgent attention, as did the investigation of the conduct of Crimmins and Roddan. Nevertheless, he had been ordered to cease further inquiries. Corfield had been told that Sergeant Thoy could no longer assist him and that the investigation was finalised. Sergeant Thoy concluded his report by observing that he had approached Superintendent Dalton and had been told that he, Thoy, was not considered an appropriate person to continue the matter and all further requests should be directed to a different unit.
This report reveals that Sergeant Thoy was very dissatisfied and critical of the instructions given to him to cease the inquiry at a point when he, Thoy, believed that significant further initiatives were obviously necessary. It is evident that he seriously questioned the judgment of Superintendent Dalton, and of Chief Inspector Trewin and Inspector Storm. It is evident that he was also critical of Superintendent Ghockson and other senior officers. Perhaps he was a difficult man to handle and somewhat impetuous in his investigations, although the report (Exhibit 149) pursues a cogent line of thought and it is difficult to resist the conclusions that there was every reason to continue investigations into the internal operations of the WADT and to pursue investigations into Roddan and Crimmins.
This trial is not in any way concerned with investigations into the conduct of the WADT or what, if anything, happened further in that regard. However, the decision to cease the investigation into the Roddan/Crimmins association and the suspected theft of diamonds from the Argyle mine clearly had unfortunate and destructive consequences. There can be little doubt that it sowed the seeds of distrust and suspicion in the minds of Sergeants Thoy and Gwilliam about the performance of elements in the Police Force command of the public duty to investigate crime, and that it generated a consequent belief that there was some undisclosed or unaccountable reason to refrain from what seemed to be a necessary course.
As will be seen, this developed into a major problem in later phases of the investigation and led to repeated allegations being made of corruption within the Police Force in regard to this investigation. As always, such allegations became corrosive, destroyed trust and confidence, and undermined discipline. In that climate it became very difficult to manage the inquiries and more difficult still to deal with and evaluate repeated allegations of corrupt activity.
Whatever view one might hold about the objectivity, reliability or general prudence of the Thoy investigation, it contains a number of significant features, which are not only important but which were vindicated by subsequent events. Importantly, those include the following:
(a)The conclusion that Roddan's account of having received the Newton diamonds on consignment from Horovitz in Geneva, together with other quantities of Australian diamonds from the same source, was almost certainly either false or exaggerated and was aimed at covering Roddan's possession of large quantities of uncut Argyle diamonds which had come illicitly from the Argyle mine.
(b)That Roddan was identified from the very outset as the major suspect involved in the theft and distribution of Argyle diamonds and was almost certainly acting complicitly with an employee of Argyle at the mine site.
(c)That although the scientific tests on the Newton diamonds performed by the CRA scientists only positively identified two of the diamonds as sourced from the Argyle mine, the probabilities were high that significant quantities of the other diamonds also came from that source. Not only do the circumstances point to that conclusion, but such investigations as had been conducted by reliable experts in the international diamond trade indicated that it was highly improbable that any person could come by a significant quantity of Australian diamonds lawfully by purchase through the De Beers' outlet. Similar inquiries revealed that Arslanian Freres were dissatisfied with the low quality and quantity of gem grade stones being received from the WADT.
(d)That the indications were that there were serious irregularities in the record‑keeping processes and stock control of diamonds within the WADT and, so far as it was possible to conduct an audit, the efforts revealed that a significant quantity of diamond stock was missing. Other evidence from staff members suggested that there was a diversion of high quality gem stones from the WADT stock in an unrecorded manner to persons unknown.
(e)That the senior security personnel at Argyle, in particular Corfield, became seriously dissatisfied with the nature and rate of progress of the police investigation and complained to senior officers within the Police Force about this.
(f)That on any basis, there were solid reasons to conclude that diamonds in significant quantities had been stolen from the Argyle mine and also from the WADT, so that the police investigation should have been continued.
(g)That Sergeants Thoy and Gwilliam had developed a good working relationship, had acquired a high degree of knowledge of the diamond processes at Argyle and the international diamond trade, and had achieved major progress in the investigation, which they had been instructed to undertake before it was terminated by orders from higher authority.
The Newton diamonds - interpleader proceedings
These interpleader proceedings, pending in the District Court of Western Australia, relate to a quantity of the diamonds seized under warrant by Sergeant Thoy from the premises of Noel Norman Newton at 29 Adelaide Street, Fremantle, where they were being cut or polished by Newton whilst on consignment from Roddan. It is important to note, however, that these are much fewer in number than the diamonds originally detected by Corfield as being in Newton's possession, and inspected by Sergeant Thoy earlier in December 1989. There is no reliable account of the number of such diamonds first found at Newton's premises, but it appears that there was something in the order of 200 stones then discovered.
By the time the search warrant was executed, on 26 February 1990, there were only 27 stones remaining. These were seized by the police. Over the subsequent months and years, a total of eight of these were returned voluntarily by the police to Newton, for Roddan, because testing conducted on them demonstrated that they probably did not originate from the Argyle mine. It is the 19 stones remaining in police custody which became, and still are, the subject of the interpleader action.
It is also necessary to note that at about the time that the Newton diamonds were seized under the search warrant in February 1990, the police also conducted a search, under warrant, of Roddan's own premises. In the course of that search they found a packet containing approximately 48 gem‑quality diamonds of relatively small size. These were examined by a diamond expert whom the police had arranged to be present during the search. His opinion was that, while one could not be certain of the origin of those stones, the nature of the cuts and other factors indicated that it was unlikely that they originated from Argyle. Roddan asserted that these particular diamonds had been sent to him on consignment from Geneva by Horovitz and had invoices to support that claim. The officers and the diamond expert present at the search appeared to have accepted that explanation and did not seize that parcel of gems.
Once the Newton diamonds had been seized by the police, arrangements were made for them to be carefully inspected, described and appraised by a senior diamond consultant specialist retained by Argyle Diamond Sales Pty Ltd (a wholly owned subsidiary of Argyle). That was done on 7 and 8 March 1990 (3TB 435‑439). The consultant concluded that 25 of the 27 diamonds were of Argyle origin and attributed values to them. The two remaining diamonds, which were also appraised (stone KM3 and stone B26), were reported as being of non‑Argyle origin. Later, in circumstances which are not important, a further six of the seized stones were acknowledged to be of non‑Argyle origin and were also returned, leaving 19, which Argyle maintained were its property.
In August 1990 (2TB 103) the solicitors for the Argyle Diamond Mine Joint Venture wrote to the Commissioner of Police asserting that their client owned those 19 stones and demanded delivery of them. Sergeant Thoy and his superior officer reported to the Assistant Commissioner (Crime) that there was insufficient evidence to proffer a charge against Roddan in respect of these stones, and that the appropriate course was to instruct the Crown Solicitor to issue interpleader proceedings to allow the dispute between Argyle and Roddan over the ownership of the diamonds to be resolved by a court. The Crown Solicitor, on behalf of the State of Western Australia, issued interpleader proceedings in the District Court of Western Australia (No 8133 of 1990) naming the State as the plaintiff (interpleader) Lindsay Gordon Roddan as the first defendant, and the Argyle Diamond Mine Joint Venture as the second defendant.
After affidavits had been filed and directions given as to the conduct of the proceedings, there was an amendment to the style and to the parties. The State was removed as plaintiff, Argyle Diamond Mine Joint Venture was substituted as the sole plaintiff (presumably because it was the party asserting ownership to goods found in the possession of another) and Jucara Pty Ltd (a Roddan company) was substituted for Roddan as the sole defendant (it being Roddan's contention that the actual ownership of the diamonds rested in the company and not with him personally).
Argyle filed a statement of claim in the interpleader in June 1991. This identified 25 of the diamonds, to which Argyle was then asserting ownership, and made the following allegations of fact as the basis for its claim of ownership; namely:
(a)All the diamonds exhibited unique marks, structures and shapes, indicating that they were sourced from the Argyle mine.
(b)Two of the diamonds (TL50 and TL52) had not been treated with acid to remove dirt.
(c)Argyle has never sold or supplied diamonds from the Argyle mine which had not been acid treated.
(d)Argyle had only every sold diamonds of the size and quality of the gems in question to the Central Selling Organisation ("CSO" ‑ the De Beers organisation).
(e)The practice of the CSO was to mix diamonds bought from Argyle with other diamonds from other worldwide suppliers, and to sell boxes of similar sized stones to CSO clients only.
(f)Because of the CSO selling practices, it was not possible for any single client of the CSO to acquire legitimately diamonds of the quality and quantity of the gems in question.
(g)Consequently, these diamonds can only have been obtained illicitly from the Argyle mine, so that no good title to them could be acquired by any subsequent possessor against the Argyle Diamond Mine Joint Venture.
This claim by Argyle was supported by affidavits filed in the interpleader proceedings by Sergeant Thoy (3TB 447‑451). In one affidavit, Sergeant Thoy deposed that when he had asked Roddan how Roddan had come by the Newton diamonds, Roddan claimed that he had purchased them all from Horovitz, a known diamond dealer in Geneva, and that, on further questioning, some of the diamonds had come from Horovitz's sources in Hong Kong. After dealing with other matters, Sergeant Thoy deposed that he had made inquiries of Horovitz in Geneva, who had been sent a detailed list with the descriptions of the stones in question, and that Horovitz identified six of the stones on that list as having been supplied by him to Roddan. According to Thoy, Horovitz maintained that none of the other stones listed had been supplied by him.
In a second interview with Roddan, described by Sergeant Thoy, Thoy put to Roddan that Horovitz had told him (Thoy) earlier, that Horovitz had sent Roddan some rough pink diamonds, but had not sent him any other stones which Horovitz believed had come from the Argyle region. Roddan responded by asserting that a person named Michael Ronald Sillcock had a diamond claim at Wesley Creek Springs (adjacent to the Argyle mine), had recovered gem‑quality rough diamonds from that claim, and that some of the Newton diamonds thought to have come from Argyle could well have come from Wesley Creek Springs. Over the next few days Sergeants Thoy and Gwilliam, and others, travelled to Kununurra and inspected the Wesley Creek Springs claim. No sign of recent diggings or operations was found and the limited state of work on the claim was regarded as quite insufficient to have produced the quantity or quality of the seized diamonds.
After Thoy had received information from Horovitz in Geneva that the latter had supplied, at most, six of the seized diamonds to Roddan, Roddan was interviewed again. On this occasion, he is reported as saying to Thoy that he had obtained the balance of the seized diamonds from an Indian dealer in a coffee shop in Hong Kong. He refused to provide further details, saying that his life would be in danger if he revealed anything more. Thoy obviously did not accept that explanation.
A statement from Sergeant Gwilliam supporting the plaintiff in the interpleader proceedings was also prepared and submitted to the Crown Solicitor. He substantially confirmed, but in more detail, the matters deposed to by Sergeant Thoy. A draft of an affidavit by Corfield of Argyle was also submitted to the Crown Solicitor and this, essentially, describes the treatment and sorting process of gem‑quality diamonds at Argyle, including the acid process to remove all dirt or other substances from gems recovered.
Another affidavit, filed for Argyle in the interpleader proceedings, is from Raelene Mary Shaw, formerly Roddan's de facto wife for a period of 9½ years until March 1991. She deposed that in early 1989 she saw Roddan meet with Barry Crimmins at Roddan's house on at least two occasions. She also deposed that in late 1989 Roddan had told her that he had purchased hydrofluoric acid for the purpose of cleaning rough diamonds. He warned her that it was extremely dangerous and that she should not touch it.
Roddan, himself, swore two affidavits in support of his claim to the rightful possession of the Newton diamonds. These were dated 26 February and 10 April 1991 (3TB 413‑427). In these he deposed that he was a director of Jucara Pty Ltd, asserting that it was that company which was entitled to the diamonds as trustee of the Roddan Family Trust. He then nominated six of the specified diamonds which had been seized as having already been returned to Jucara Pty Ltd and claimed that the remaining diamonds were all the property of that company.
In his second affidavit, Roddan swore that the diamonds seized had been purchased between about February 1987 and September 1989. He said they were purchased as part of four packages of diamonds, from Theodore Horovitz of Geneva and from merchants in Hong Kong and Singapore. He also said that on about 26 June and 4 August 1989, his trustee company obtained quantities of Australian diamonds from Horovitz. He annexed to the affidavit invoices from Horovitz's company of those dates, together with an air waybill for 28 June 1989 in respect of the carriage of those diamonds to Australia, and a Customs' document of 8 August 1989 in respect of their importation. He also deposed that in about October 1988 he purchased about 200 carats of diamonds in Hong Kong and 150 carats of diamonds in Singapore, but was unable to identify the vendor of those parcels. He added that each purchase was the subject of a cash transaction and that he carried the diamonds into Australia personally rather than having them sent by airfreight. Later, when questioned about the Horovitz invoices for these diamonds by Sergeant Thoy, and upon it being pointed out that the prices listed for the diamonds supplied were far above the market value for the diamonds seized, Roddan gave the explanation that the prices on the invoices had been deliberately inflated to allow him to claim losses for taxation purposes in his business.
Several features emerge from the dispute about the ownership of the Newton diamonds which are presently material. In the first place, Roddan's explanation as to the identity and source of the diamonds as all coming from Horovitz was found to be wrong based on inquiries made of Horovitz and, after that, Roddan gave at least two other descriptions about the source of the diamonds which could not be verified and which strained credulity. If anything, his explanations are likely to have increased, rather than allayed, suspicions which the police and Argyle entertained to the effect that Roddan had come by the diamonds illicitly. Secondly, however, it became apparent that not all of the diamonds seized from Newton came from Argyle. Some were positively excluded from that category and were returned to Roddan. Only two were identified as being pre‑acid and, therefore, probably having bypassed the proper treatment and processing of stones recovered at the Argyle mine.
At the same time, it was confirmed that Horovitz had sent Roddan some rough pink diamonds. Later, after he had seen the list of stones prepared by the consultant, Horovitz identified six of the stones as having been supplied by him to Roddan and stated that none of the others had been supplied by him. There is also the fact that on the search of Roddan's premises by the police on 26 February 1990, a separate quantity of diamonds was discovered. These were examined by a diamond expert and pronounced as having been unlikely to have come from Argyle. All this revealed that Roddan had, apparently legitimately, been dealing in diamonds and had received quantities of gems from sources, including Horovitz. The gems received, comprised pink stones which may have come from Argyle, other stones which did not come from Argyle and, in a third category, stones which were suspected of having come from Argyle but whose actual origin could not, at that stage, be proved.
All this justified the view then taken by Sergeants Thoy and Gwilliam, and by their superior officer who approved of the institution of the interpleader proceedings, that there was insufficient evidence available to lay charges against Roddan. As I understand the evidence in this case, even now many years later, no one suggests that at that time there was sufficient evidence to lay charges against Roddan or that the view reached by Sergeants Thoy and Gwilliam in this respect was in any way unreasonable.
The consequence of this was that, in the interpleader proceedings, the onus of establishing ownership of the diamonds rested upon Argyle. In respect of the pink diamonds, Argyle appears to have had good arguable grounds to contend that they originated from its mine. In relation to these diamonds, however, Roddan appeared to be able to adduce evidence from Horovitz that they had been purchased for Roddan, through him (Horovitz), from sources in Antwerp, and in that case that Roddan had come by them lawfully. In relation to the other diamonds seized from Newton (some 13 in number), Argyle's claim depended upon it establishing the probability that each of the gems came from Argyle. This was not entirely straightforward because, of the entire 19, only two could be shown to be in pre‑acid condition. However, Argyle's case was that, in the opinion of the expert diamond consultants who had appraised the stones, they showed features which made them recognisable as Argyle stones - the sufficiency of that evidence itself remained an unresolved issue. However, Argyle's case was supplemented by other circumstances, relied upon in the statement of claim in the interpleader, and stoutly maintained by Corfield; namely, that:
a)Pre‑acid diamonds or, for that matter, diamonds with traces of Kimberlite or other adhering particles, were never dispatched or delivered from the Argyle mine site.
b)That gem‑quality diamonds dispatched from the Argyle mine to Perth for marketing were all sent on to the De Beers' CSO in London where, because they were mixed in batches with other diamonds from all over the world, and sold in limited quantities to specially selected clients (the sights), it was not possible for any person to acquire a collection of a significant number of gem‑quality Argyle diamonds, whether in Australia or elsewhere.
c)Similar constraints upon the sale and distribution of gem‑quality diamonds through the WADT, in respect of its 5 per cent share of the mine product, resulted in similar consequences.
Corfield and the other advisors from Argyle apparently never wavered in their maintenance of those propositions, which were also accepted, without qualification, by Sergeants Thoy and Gwilliam. Consequently, they were satisfied that the case against Roddan, that he had illicitly come by these diamonds, although circumstantial, was strong. Accordingly, it can readily be seen that Argyle's prospects in the interpleader proceedings and, for that matter any case against Roddan that he had been illicitly dealing in stolen diamonds, depended to a considerable extent on Argyle, or the police, being able to establish that all, or most, of the Newton diamonds came from the Argyle mine and had not been purchased by Roddan through the diamond trade in Antwerp, Hong Kong or Singapore, as he variously claimed.
Despite having originated in 1990, there appears to be very little progress towards the hearing or determination of the interpleader claim. In fact, the evidence at this trial was that the claim was still unresolved and pending. There are several possible explanations for this lack of progress. From Argyle's point of view, it seems that the security personnel were intent upon persuading the police to continue or renew the investigation into the alleged stealing of diamonds from Argyle by Roddan or others. If such a renewed investigation could turn up further evidence then, not only would it be logical and proper for criminal proceedings to take precedence over pending civil proceedings dealing with similar issues, but the police investigation and any consequent charges for stealing would probably enhance the capacity of Argyle to establish ownership of the diamonds in the interpleader action. This may also account for the action by the senior police command in reopening the Argyle diamond theft investigation, by instituting the second phase in February 1992, conducted by Sergeants Noye and Gwilliam.
It is evident from Sergeant Noye's report (Exhibit 3), that as he progressed with his inquiry, he came to develop serious doubts about the explanations advanced by Corfield and others from Argyle that it was impossible for any person, such as Roddan, to come into possession of pre‑acid Argyle diamonds or significant quantities of gem‑quality Argyle diamonds.
The details of how Detective Sergeant Noye developed these doubts, and how in the end he concluded that these assumptions by Corfield were untenable, are lengthy and complicated. They are found in Exhibit 3 (2TB 116 ‑ 200) and can be summarised in this way. As a result of inquiries made by Sergeant Noye of reputable diamond dealers and experts familiar with the quality, quantity and manner of distribution of Argyle diamonds, it became apparent that there were, during the period of around 1988/1989, problems or inadequacies in the acid cleaning process of gem‑quality diamonds at the Argyle mine. These sources confirmed that diamonds had come from the mine which were not completely cleaned, still showing signs of Kimberlite or other adherent particles, and that in certain instances it had been necessary to send quantities of these diamonds back to Argyle for further acid cleaning treatments. In addition, these sources revealed that up until the time when the Argyle Diamond Mine Joint Venture took over the marketing of the WADT diamonds in about 1989, a number of reputable jewellers in Perth had purchased from the WADT pink gem‑quality Argyle diamonds for polishing, cutting or sale.
This was confirmed by senior personnel at the WADC and it was acknowledged that the practice had been authorised and was beyond reproach. Furthermore, Sergeant Noye's enquiries revealed that a number of Argyle diamonds, possibly those marketed via the WADT, had been sold by Arslanian Freres in Antwerp to various international gem dealers who might lawfully have come into possession of quantities of the product. In other words, the marketing mechanism through Arslanian Freres, and for that matter the marketing arrangements for other diamonds coming from the Kimberley region, but not from Argyle, known as "Freeport" diamonds (Poseidon Exploration Ltd), was less rigorous than the De Beers system of distribution through the CSO. Consequently, it could provide an opportunity for other dealers or customers to assemble significant collections of pink diamonds, whether from Argyle or nearby.
Other potential sources of pink diamonds
At the material times, there were only two producers of "pink" diamonds in Australia - Argyle and Poseidon Exploration Ltd, (which subsequently became Normandy Poseidon Ltd, and which was also referred to as Bow River or Freeport), situated adjacent to the Argyle site. Poseidon Exploration Ltd was originally known as "Freeport" and specialised in the recovery of alluvial diamonds. It was located down river from the Argyle site. Argyle, although it produces some alluvial diamonds, predominately sourced its diamonds from Kimberlite pipes (extracted from the hills).
Corfield's suspicions were initially aroused by a report from an Argyle representative in Antwerp that an "Australian prospector" had sold to a local buyer a parcel of diamonds said to come from his Australian stake. This parcel comprised 280 carats, of which 12 carats were pink. When asked about the availability of smaller stones, the prospector is reported to have said that his stake did not have any such small stones. Argyle, and Corfield, thought this most implausible; any other diamond producing stake in Australia would, in their estimation, have been well‑known within the diamond trade. Further, it was most unusual for product to comprise only good stones. In fact, in their experience, in a typical diamond operation about 95 per cent of the product was comprised of small, cheap or industrial stones. Enquiries in Antwerp had failed to identify the Australian prospector or to confirm any details about him.
Later, Corfield arranged for samples of the diamonds sold in Antwerp by the Australian prospector to be brought to Perth for testing. Five diamonds were brought and examined. They had been reported in Antwerp as being pre‑acid but had later been cleaned in Antwerp. The testing on the Antwerp diamonds in Perth was done to compare them with a representative sample of Freeport diamonds, but the tests were inconclusive, apparently because the stones had been cleaned.
Background police intelligence inquiries into Roddan revealed that he had been stopped by Customs at Perth Airport on 6 August 1989 for failing to declare $107,000 worth of rough diamonds, allegedly purchased overseas but originally mined in Australia. His explanation was that the diamonds were purchased from Horovitz in Geneva. Other confidential police intelligence reports labelled Roddan a diamond smuggler; referred to reports that he had been involved in money laundering and bottom of the harbour cash stripping of companies for tax purposes; and indicated that there had been a cannabis crop detected on his property at Chittering, leading to the arrest of an ex‑police officer found keeping the crop, but with no evidence linking Roddan to the crop. Drug Squad intelligence reports alleged that Roddan was involved with drug smuggling; however enquiries with his de facto wife suggested that he had never been involved with drugs. Roddan was also known to be associating with a man who had been convicted of conspiracy to sell or supply heroin.
There were two other allegations from Corfield which were put to the police as potentially implicating Roddan. The first was that Roddan was using hydrofluoric acid to clean pre‑acid diamonds which had been stolen from the Argyle mine. The second was that Roddan and Barry Crimmins shared a secret bank account in Germany, into which the proceeds of the diamond thefts were placed.
Inquiries by Noye had confirmed that another diamond operation had been conducted in the Kimberley region by a company, Poseidon Exploration Ltd, at a location on the Bow River. As described above, significant quantities of pink diamonds from alluvial sources were found at Bow River and were marketed by Poseidon Exploration Ltd under the name of Freeport diamonds in Antwerp. Noye's enquiries revealed that the firm of Hollander Bros BBBA of Antwerp had sold Horovitz 73.49 carats of Bow River pink diamonds (Freeport diamonds) valued at US$225,000. Accordingly, the pink diamonds sent by Horovitz to Roddan's company, and found by the police at Newton's, were thought possibly to have come from the AFR series (diamonds labelled with the prefix "AFR") listed on Horovitz's invoice to Marblon Park Pty Ltd (Roddan) of 22 June 1989 and comprising two of the Newton diamonds.
For these reasons Sergeant Noye developed the view that the circumstantial case against Roddan, that he had come by the Newton diamonds illicitly, was nowhere near as strong as Corfield steadfastly maintained or, for that matter, as Sergeants Thoy and Gwilliam believed. Noye took the view that more evidence was needed to establish a case that the Newton diamonds had been stolen from Argyle. Further, at that stage of the inquiry there was actually no direct evidence that diamonds had been stolen from the mine site or, apart from the opinions of the expert diamond consultants already described, that more than six of the Newton diamonds came from that mine.
Roddan was obviously a suspicious character and the explanations which he had given to the police and to Argyle had undergone material changes and were not convincing. Nevertheless, it was obvious that he did have in his possession many diamonds from other sources and that, subject to the issue of identification, it was possible that some of the Newton diamonds might have come to him by legitimate means. Roddan, himself, emphatically denied being involved in the theft of, or illicit receipt of, Argyle diamonds. Crimmins had been interviewed by Thoy, Gwilliam and Corfield and also denied being involved in any way in the theft of diamonds from the Argyle mine site. His association with Roddan had only come to light well after the investigation had started, and although it was discovered in circumstances which rendered it suspicious that he had not disclosed that association earlier, it was not proof that Crimmins was involved in supplying stolen diamonds from Argyle to Roddan or to any of his associates.
Misfeasance in public office
This cause of action was advanced only against Inspector Robbins. Again, however, because I am satisfied that Inspector Robbins acted in the honest belief that the evidence available to him disclosed a case to establish the offences alleged against Noye which warranted him being charged and put on trial, there can be no basis for any conclusion that Inspector Robbins acted in bad faith or for an improper or collateral purpose and with intention to harm Noye. Nor is there any basis for a conclusion that in charging Noye, Robbins knowingly acted beyond power. Similarly, my finding that Inspector Robbins did not act maliciously in charging Noye also leads to the finding that he was not acting maliciously with the intention to harm the plaintiff or by doing so acted in excess of the proper exercise of his powers.
These observations in relation to a misfeasance in public office apply equally to Inspector Robbins' conduct in instigating the disciplinary complaints against Sergeant Noye, by referring the substance of his conclusions and evidence to Inspector Dawson, who actually laid those complaints. It follows that the claims for damages for misfeasance in public office against Inspector Robbins fail.
Liability for injurious falsehood
As recorded earlier in these reasons when analysing the components of the tort of injurious falsehood, Inspector Robbins instituted criminal charges against Noye, and was responsible for the instigation of the internal police disciplinary proceedings against him. These were not publications of false statements made maliciously but, rather, were allegations of criminal offences and disciplinary offences, respectively. These were instituted before the appropriate court or statutory tribunal which had the jurisdiction to hear them and to determine whether or not any of the charges or complaints had been made out. Accordingly, these are not statements of the kind to which this tort applies and I am satisfied, in this case, that none of the charges or complaints was laid or instituted by Inspector Robbins maliciously. For this reason, the claims for damages against Inspector Robbins for injurious falsehood fail.
In relation to Lynette Crimmins, this cause of action is advanced because of her allegations (comprising both oral and written statements which she made to various police officers) stating that Noye had participated in an agreement with Roddan to pervert the course of justice by writing off the second phase of the Argyle diamond stealing inquiry; that Noye, had in various ways, admitted that he was to be paid $200,000 by Roddan and that he was to get first pick of the diamonds; that she had been present at a meeting between Roddan and Noye at which Noye handed over a beige folder containing a large number of documents and saying words to the effect that, there it all is, except for Devenish's statement and that it will cost a lot more money to get his statement; that she had on three separate occasions, at Roddan's direction, paid cash amounts to Noye varying between $200 and $300 (later saying that the payments were as much as $400 or $500), because Roddan had told her that Noye "was getting hungry"; that Noye had compiled a false inventory of items said to have been stolen from the Lincoln Street unit in September 1992 and had assisted her in making a false and fraudulent insurance claim against the SGIO in respect of those losses; and, that Noye had demanded from her, and had received, $1000 in cash from the proceeds of the fraudulent insurance claim as his share to pay his travel expenses to Victoria to see Barry Crimmins in order to tell him to "keep his mouth shut".
Lynette Crimmins did, on the various occasions which are recorded in the evidence which I have already analysed, make statements to those effects to police officers. All of those allegations were of a character which can be described as being calculated, in the ordinary course of things, to produce actual damage. Equally, each was a statement which was likely to injure Noye in his profession or occupation. That leaves the question of whether or not each or any of the statements so published by Lynette Crimmins was false and, if so, whether it was published maliciously.
As earlier observed, a false statement made by a person who believes it to be true, if not made for the purpose of protecting or advancing her own interest, but solely or primarily for the purpose of injuring the plaintiff's business or occupational interests, will be malicious, notwithstanding the person's mistaken belief in the statement. Lynette Crimmins' position in relation to this aspect of the case is that, in relation to many of her allegations against Noye, she was merely repeating statements which were made to her by Roddan and which she believed to be true. However, this does not apply to the foregoing statements which I have identified which are based upon Lynette Crimmins' direct evidence of what she saw or heard Noye do or say.
That leads to a question of whether or not the statements were made maliciously in the wider sense of that term which I have attempted to distil from the authorities. If Lynette Crimmins made these statements (assuming for the moment that they are false) in the belief that, having regard to her circumstances, the time had come to reveal all that she knew about the Argyle diamond affair, Roddan's conduct and his involvement with police in the investigations, so that the authorities could determine what action, if any, should be taken, then she would have been acting for a lawful purpose and without malice. She certainly claims, and her counsel submits, that that is all that she did and, further, that the statements which she made were all true.
However, I do not accept that explanation or those submissions. In my view, when making these statements, Lynette Crimmins was acting from a variety of motives and purposes. Initially, she was motivated by animosity towards Roddan and, once she realised that by doing so she had implicated herself in serious criminal conduct, she was acting with a view to secure the best outcome for herself by obtaining favourable co‑operation from the authorities in return for implicating others in alleged criminal conduct and then causing serious public concern. The animosity which she had towards Roddan was extended to Noye. I have no hesitation in concluding that when giving evidence at this trial she displayed conspicuous ill will towards Noye. I am also satisfied that in making these statements to the police, which I have summarised, concerning Noye, she was also activated by personal animosity and a desire to denigrate him by making unfounded allegations against him.
The nature and severity of the allegations which Lynette Crimmins made against Noye increased and expanded over time. On 20 January 1993 all that she was prepared to say against Noye was that she had been told by Roddan that he was to be paid $200,000 for writing‑off the inquiry but, as time wore on and she was interviewed by Gwilliam and Burton, and then later by Robbins, the allegations expanded to include being present when Noye made admissions that he was to be paid $200,000 and that he would have first pick of the diamonds.
It was also later that she alleged that Noye had accepted cash payments from her of $200 to $300 on about three occasions (at this trial this accusation increased to payments of $400 to $500), from her earnings from prostitution, because Roddan said that he "was getting hungry". Apart from her word, there is no evidence that any such payments were made to Noye or that unexplained money was found in his possession or control - although, admittedly, the amounts in question may not have been readily identifiable had the payments been made. Nevertheless, these allegations were only made by Lynette Crimmins well into the third phase of the investigation and they do not appear to have been accepted by any of the police officers or by the DPP because no charges in respect of them were ever laid.
With regard to the allegations made by Lynette Crimmins that Noye falsely and fraudulently compiled a false inventory of goods stolen from her Lincoln Street home; that he then assisted in making a fraudulent insurance claim against the SGIO; and, then demanded and received $1000 from the insurance proceeds, to meet his expenses to travel to Victoria to see Barry Crimmins to tell him to "keep his mouth shut" - the only evidence in support of the allegations is from Lynette Crimmins herself. Here, however, Noye was charged with participating in a false and fraudulent insurance claim against the SGIO in respect of the alleged thefts from Crimmins' home, and the allegation that he travelled to Victoria to see Barry Crimmins to tell him to "keep his mouth shut" was part of the later overt acts of the conspiracy to pervert the course of justice which were in the indictment against Noye. Noye was committed for trial on those charges but each of them was withdrawn by the nolle prosequi which was filed. I am satisfied that these allegations were also made by Lynette Crimmins against Noye out of the malice which she had by then developed towards him and in an attempt to secure preferential treatment for herself on the disposition of the offences of conspiring to steal diamonds from the Argyle mine, which she had admitted.
The essential question which remains is whether these statements made by Lynette Crimmins to the police, while being malicious and calculated to cause harm to Noye, and causing harm to him, were false. While there are some close similarities between this tort and the tort of defamation, one significant difference is that the injurious statement is not presumed to be false, as a defamatory statement is presumed to be false, so obliging the plaintiff to prove affirmatively that it was false: Burnett v Tak (1882) 45 LT 743; Roberts v Gray (1897) 13 WN (NSW) 241; and, generally, Fleming, G J The Law of Torts 9th ed (1998) at 779.
At all times Noye has denied the truth of these allegations made against him by Lynette Crimmins. He denied them to Inspector Robbins and to Superintendent Watson in the various interviews which he had with them. He went to Ayton and Zanetti to demand that the police conduct a proper investigation into the allegations which had been made against him and against Superintendent Kiernan by Lynette Crimmins. Insofar as the DPP laid indictments involving affirmations of certain of the allegations made by Lynette Crimmins against Noye, his attempt to prove those was abandoned by the filing of the nolle prosequi. Noye has denied each of those allegations when giving evidence in this trial and his denials have not been shaken by cross‑examination or by any other evidence adduced at the trial. Therefore, proof of the falsity of these claims reduces to the question of whether or not I am satisfied, on the probabilities, that Noye's denials of these allegations should be accepted.
There is no onus of proof upon Lynette Crimmins to establish that the allegations are probably true, even if, as a matter of evidentiary burden, her case would succeed if she did so. It is not enough for me to be left in a state of uncertainty over whether Noye's denials are more probable than Lynette Crimmins' affirmations of these allegations, because that would mean that the plaintiff had failed to discharge the onus of proof which rests upon him.
The decision I make in this regard must be made on the evidence which has been adduced in this case. It is quite distinct from the question of whether or not, at the time the allegations were made or the charges laid, other persons, including Inspector Robbins, honestly believed the allegations to be true; or that they were sufficiently supported by other evidence to warrant the laying of charges; or that there existed, objectively, reasonable grounds for treating the allegations as true. The question for present decision is whether, on the evidence adduced at this trial, and only that evidence, I should be satisfied on the probabilities that these allegations are false. Having regard to my assessment of the credibility of Lynette Crimmins, as described in several earlier passages in these reasons, and to my conclusions that none of the evidence given by Noye in these proceedings was refuted, on this issue of credibility, I accept the evidence of Noye that these allegations made against him by Lynette Crimmins are false and I find that he has proved that component of this cause of action against her.
The final question is whether or not these injurious falsehoods have caused Noye damage. Special damage must be proved of a kind which is calculated to injure the plaintiff in his trade or occupation or "which interferes with prospective advantage even of a non‑commercial nature": per Fleming J G, (op cit), at 778.
In this regard it is important to recognise the impact of my earlier finding that it was not Lynette Crimmins' evidence alone which led to Noye being charged, committed and then indicted for the offences laid. Inspector Robbins and others realised the shortcomings of the credibility of Lynette Crimmins and looked for other evidence to corroborate her allegations.
Those falsehoods, and a number of other matters, led to the opening of the IAU investigation into alleged police corruption against Noye and others but that was conducted in conjunction with the third phase of the investigation into the Argyle diamond thefts. It was a combination of the information obtained from Barry Crimmins and much other circumstantial evidence which led to Noye being charged. Lynette Crimmins' allegations were, of course, taken up by Gwilliam and the Argyle security staff, who accepted them without the reservations which Inspector Robbins properly recognised were necessary. It was a combination of the influences of the allegations by Lynette Crimmins, the admissions of Barry Crimmins, the investigations of the Lavender/Gwilliam team and inferences arising from circumstantial evidence which ultimately led to Noye being charged, committed and being indicted for trial.
Lynette Crimmins' allegations were part, no doubt a significant part, but still only a part of this composite set of circumstances which resulted in Noye being charged and suffering damage to his professional reputation and career. Nevertheless, they continued to be a material part of the case against Noye and, in the events which happened, it was the realisation that Lynette Crimmins' evidence could not be adduced, or if led was unlikely to be accepted, which was the principal reason for the nolle prosequi being filed.
Accordingly, it must be said that Lynette Crimmins' allegations against Noye were a material cause in him being charged, and remained a material cause in that charge progressing to a committal, and eventually to the presentation of indictments. All that damaged him in his person, notwithstanding the fact that the ultimate damage was also due, to no insignificant degree, to a pattern of incongruous and injudicious behaviour by Noye himself, and evidence coming from Barry Crimmins and others - particularly Gwilliam, as corroborated by Schubert - with regard to the D'Anna report.
It must also be said that other aspects of Noye's conduct which resulted in charges being laid against him could not be attributed in any direct sense to allegations made by Lynette Crimmins, although they were also responsible for the close investigation into his conduct being undertaken. These other matters include the allegation of disclosure to Roddan of the confidential D'Anna report; the disclosure by Noye to Roddan of the CRA soil analysis reports at the meeting at the L'Alba Café on 25 March 1992 and, in relation to the police complaints, the unlawful disclosure to Roddan of the name of the owner of the stolen firearms about which Roddan enquired. Those allegations, and the evidence supporting them, contributed materially to the overall decision that Noye should be charged because they suggested that there were a number of offences or irregularities by Noye which were too numerous to be explained away by coincidence and which, therefore, outweighed his denials.
Therefore, in relation to the claim for damages against Lynette Crimmins for injurious falsehood, I consider that the plaintiff is entitled to judgment and damages which must now be assessed.
Assessment of damages
In the light of my findings, it is strictly unnecessary to determine the amount of damages which would be recoverable by the plaintiff in either action had liability been established for malicious prosecution. This also applies in relation to the claims against Inspector Robbins for misfeasance in public office and injurious falsehood. Nevertheless, I consider that I should do so provisionally in case it ever becomes necessary to have such a determination. However, the claim in injurious falsehood against the defendant Crimmins does require damages to be assessed.
The category of damages recoverable for malicious prosecution have long been accepted to be those identified by Holt CJ in Savile v Roberts (1698) 1 Ld Raym 374 at 378; (1698) 91 ER 1147 at 1149 ‑ 1150, being damage to the plaintiff's fame or reputation; damage to the plaintiff's person; and, damage to the plaintiff's property. Once damage under any one or more of the three heads is proved, the award of damages is at large subject only to the condition that the damages must not be grossly disproportionate to the losses or injuries sustained. The reflection upon his integrity and the disgrace associated with a charge for these offences, if wrongly brought and maintained, would also undoubtedly tend to cause injury to the plaintiff's reputation and good name. I am satisfied that this in fact occurred in the present case and, accordingly, damages under the first of the characterisations would therefore be available. However, damages to personal representation, as distinct from damages to reputation reflecting on occupational or commercial interests, are not recoverable for injurious falsehood.
The charges laid against Noye plainly involved a potential risk of imprisonment if convicted, and this is sufficient to provide a basis for an award of damages under the second category: Houghton v Oakley (1900) 21 LR (NSW) 26. In fact, Noye's liberty was curtailed by these charges. Having been charged on complaint, when he came before the Magistrates Court he was placed on bail in respect of all the charges in an amount of $10,000. That bail was renewed from time to time but the fact that he was subject to bail is itself a restriction upon his liberty.
Damages for pecuniary loss would be recoverable and would include the legal costs of defending the charges: Berry v British Transport Commission [1962] 1 QB 306, and the financial consequences of the destruction or damage to reputation which has been caused.
I am satisfied that as a result of the anxiety which was caused to the plaintiff by the charges which were laid, and from this I do not exclude the anxiety which arose during the course of the investigation which led to the charges being laid, Noye developed depression and required medical attention and supervision. He suffered from continuing depression for several years, which is presently under control.
I have no doubt that the laying of the charges caused Noye to be shunned by many of his former police colleagues and contemporaries and that that ostracism has continued to the present. The pendency of the charges against him continued for almost five years. Even when the nolle prosequi was filed, and the prosecution was abandoned, there was no public vindication of his position such as will often occur from a verdict of acquittal by a jury after trial. The statement by the prosecutor when presenting the nolle prosequi to the court was certainly not any vindication of the plaintiff's claims of innocence, nor any acknowledgement that the prosecution had been wrongly or mistakenly instituted. In fact it was quite the reverse and was, unfortunately, a rather grudging abandonment of the prosecution with the clearest of implications that it was being presented because of problems with securing evidence, rather than out of any recognition that the plaintiff was not guilty of the charges laid.
Pecuniary loss
In relation to pecuniary losses, the plaintiff advanced evidence concerning the loss of earning capacity consequent upon his retirement from the Police Force on medical grounds on 14 October 1999 until notional retirement at the age of 60 on 16 January 2004. The details are contained in Exhibit 153 and, on the basis that he would have remained in the rank of senior sergeant, which I am satisfied is the only approach which could have been taken, his loss of salary (before tax) for the period is put at $266,250 and the value of the loss of fixed allowances claimed is $4983. There is also a claim for loss of the benefit of employer superannuation contributions totalling $31,950 bringing the asserted total loss of earning capacity to the period to $303,183. However, this calculation fails to take into account the effect of taxation payable on salary and must be reduced and adjusted for that reason.
Noye's superannuation payout for total and permanent disability on compulsory retirement was approximately one year's salary. In the course of his evidence Noye said that, after the charges were withdrawn, his pay and allowances were reinstated in full and that his retirement payment was 7/8ths of one year's salary and that this had been placed in his superannuation fund.
The claim in Exhibit 153 makes no allowance for the early receipt of the superannuation payment on retirement in January 1999 - in effect an acceleration of some 41/2 years - which is a countervailing benefit. The calculations also fail to take into account the plaintiff's earnings from other sources after retirement from the Police Force. These are listed in par 10 of Exhibit 147, again on a gross or before tax basis which require adjustment for that reason, however the details are in the annual taxation notices of assessment.
The calculations of lost wages for a detective sergeant, plus allowances for the period 19 October 1999 to 16 January 2004, shown in Exhibit 153 (at page 3) (on a gross or pre‑tax basis), are as follows:
(a) Loss of gross salary for the period (taxable) $266,250
(b) Loss of allowances (tax free) $4,983
$271,233
Adjusting the loss of gross salary for the tax payable on these levels of income for the 1994 – 2004 period, produces the following results:
Period
Income
Tax
1.5% Medicare Levy
Total Tax
Tax for 1999/2000 year
$56,436
$17,127
$847
$17,974
Tax for 2000/2001 year
$84,570
$27,128
$1,269
$28,397
Tax for 2001/2002 year
$59,291
$15,282
$889
$16,171
Tax for 2002/2003 year
$78,411
$24,233
$1,176
$25,409
Tax for 2003/2004 year
$43,994
$9,370
$660
$10,030
$97,981
These figures are derived from the applicable tax tables for the relevant periods, on the basis that the salary and allowances mentioned comprised all the income of the taxpayer; that he had no special deductions or rebates (dependent family members or otherwise); and, that the full 1.5 per cent Medicare levy was payable. These are the assumptions least favourable to the plaintiff, which have been adopted in the absence of evidence to the contrary. The tax tables are published by the ATO and are available on >
Accordingly, the total loss of net (after tax) income for the period becomes:
$271,233
Less tax (including Medicare levy) $97,981
$173,252
It must be recognised that this figure is somewhat distorted and reduced because of the fact that Noye's salary was wholly suspended from 6 October 1994 (Exhibit 5(1), 11TB 2665). In the 1998/99 tax year, after the nolle prosequi had been filed, his salary and allowances were reinstated and all arrears (for the period of suspension) were repaid. That lump sum payment of arrears, put Noye in a higher tax bracket for the 1998/99 tax year, and he was therefore obliged to pay more tax than would have been payable had his salary been paid regularly throughout the period of suspension. There is insufficient evidence to make a special adjustment for this extra tax liability, but it clearly was suffered (see correspondence with ATO in Exhibits 130 and 132). The extra tax liability appears to be of the order of $2,820 or thereabouts (Exhibit 132, 15TB 3703).
In the circumstances, I consider that I should accept the apparent effect of this and, by so doing, treat the total net financial loss for the period as $176,072 rather than the $173,252 produced by the above calculations.
Since his retirement on 19 January 2004, Noye has been earning a diminished income from other sources of employment. He would, of course, have been free to do this after his planned retirement in January 2004. For that reason there should be no reduction in damage for earnings after January 2004. However, net earnings received during the period 10 September 1999 to 16 January 2004 must be brought to account.
The earnings by Noye during that period are partly discernable from his income tax returns for these periods (Exhibits 129 to 134 inclusive). There is some difficulty in identifying the net income earned from private employment or activities. However, as best as I can determine, the non Police Force income over these years is as follows:
1999/2000
Exhibit 130
Net loss –
2000/2001
Exhibit 131
Taxable Income $7,031
Less tax $175
Net income $6,856
2001/2002
Exhibit 132
Taxable Income $10,617
Less tax $785
Net income $9,832
2002/2003
Exhibit 133
Taxable Income $6,706
Less tax $120
Net income $6,586
2003/2004
Exhibit 134
Taxable Income $16,916
Less tax $1,856
Net income $15,060
Note:For the 2003/2004 tax year, only the net income derived up to 19 January 2004 should be brought to account. Accordingly, adjusting the figure of $15,060, by taking 7/12ths for this period of slightly less than seven months, produces a net income for the relevant period of $8,785.
This brings the total net earnings received by Noye for the period 10 September 1999 to 16 January 2004 to $32,059. This must be set off against the net loss of earnings during that same period which would have been received by Noye had he remained in the Police Force.
Accordingly, the total net loss of earnings for the period, after taking into account the other net earnings received becomes:
Lost earning capacity $176,072
Less net income earned $32,059
$144,013
For reasons previously explained the figure of $144,013 should then be adjusted for contingencies, to take into account the possibility that Noye may not have continued in the Police Force until 19 January 2004. For that contingency, I consider that the figure should be reduced by 5 per cent leaving an adjusted net loss of $136,812 for the period of reduced earning capacity.
The loss of extra employer superannuation contributions for this period, shown in Exhibit 153 as totalling $31,950, should also be discounted by 5 per cent for the same reasons, bringing that figure to $30,353.
The superannuation benefit of 7/8ths of retirement salary paid on 19 January 1999 constituted an accelerated receipt of that benefit. The payment was received about four and a half years earlier than intended retirement. The value of the acceleration of the benefit of this payment of $51,512 (see Exhibit 153), calculated on the 6 per cent compound discount factor for 4.5 years (0.7697), is approximately $11,850, and must be brought to account as a credit.
It is therefore now possible to conclude that the pecuniary loss to the plaintiff for loss of earning capacity caused by his early retirement from the Police Force is:
Loss of net earning capacity after discount for contingencies
$136,812
Loss of benefit of employer superannuation contributions after discount for contingencies
$30,353
Less accelerated benefit of earlier receipt of superannuation payment
($11,850)
$155,315
This is the value of the loss as at 19 January 1999, some seven years and three months ago. The plaintiff claims interest pursuant to s 32 of the Supreme Court Act 1935 on damages awarded. There does not appear to be any reason why damages on this sum should not be awarded.
The rate of interest should be 5 per cent per annum on the loss of earning capacity contents ($136,812), to take into account the after tax benefit of such interest where it becomes imbedded in the total award of damages. For the loss of the benefit of superannuation contributions ($30,353), I consider that interest should be allowed at the higher rate of 10 per cent per annum, to recognise the compounding effect of contributions within the fund and its lower tax environment. The result is that the interest on these components, at these two different rates, for the period 19 January 2004 to 30 April 2007 (three years and 101 days), is:
Loss of earning capacity
$22,414.88
Loss of superannuation contributions
$9,945.80
$32,360.68
The interest component of $32,361 must be added to the earlier figure, producing a total component for net pecuniary loss of:
$155,315
$32,361
$187,676
Although there was evidence that Noye incurred costs in relation to the engagement of solicitors in relation to the defence of the charges, the amount expended in this regard was never proved and, therefore, must be excluded from any computation of damages.
Treating the question of damages as being at large, and having regard to the need for a degree of moderation in the assessment, I would have assessed damages for malicious prosecution, had they been applicable, in this case as follows:
(a)
Injury to reputation
$50,000
(b)
Injury to person, health and restriction of liberty
$50,000
(c)
Pecuniary and consequential loss
$187,676
$287,676
In such a case, aggravated damages and exemplary damages are both available and, through his counsel, the plaintiff made submissions that such additional damages ought to be awarded. However, this was only pressed faintly and I do not see any basis in this case for an award of exemplary damages. The consequences of the prosecutions for Noye have indeed been very profound and the effect of them upon his health and self‑confidence are conspicuous. This would provide a basis for aggravated damages, but the allowance which I have made in the heads of damages for injury to person takes this into account and no additional allowance under this heading would therefore have been necessary.
These are the damages which I would have awarded had liability been established in relation to the claim against Inspector Robbins in relation to any of the causes of action advanced against him. The same observations apply in relation to the claim for malicious prosecution made against Lynette Crimmins.
Damages for injurious falsehood
The extent of the damages recoverable for the tort of injurious falsehood, when the falsehood impacts upon the person, rather than the land or goods, of the plaintiff has only been sparsely examined in the authorities. A discussion of the principles is found in McGregor on Damages 17th ed (2003) at pars 40‑015 to 40‑020. This reveals that the damages may be substantial; that they may include pecuniary loss; and, since Joyce v Sengupta [1993] 1 All ER 897, where pecuniary loss has been proved, additional damages for non‑pecuniary loss. This decision was followed and approved in Khodaparast v Shad [2000] 1 All ER 545.
As falsehood published by Lynette Crimmins had the effect of causing pecuniary losses and damages to professional, or occupational or commercial interests of a non‑pecuniary kind, I am satisfied that a similar approach to the assessment of these damages, which has provisionally been undertaken for the provisional assessment of damages for malicious prosecution, should be followed. There is one important modification; namely, that allowance must be made for the other factors which also contributed materially to the loss and damage suffered by Noye. These should be accommodated to moderate the assessment. On this basis, therefore, I would award damages against the defendant, Lynette Crimmins, for injurious falsehood, as follows:
(a)
Damage to reputation and occupational interests
$35,000
(b)
Pecuniary loss
$187,676
(c)
Non pecuniary loss
$50,000
$272,676
In the final written submissions for Lynette Crimmins there was a suggestion that the cause of action for injurious falsehood, if it produced damage in 1993 or 1994, might mean that this present action, instituted against Lynette Crimmins in November 2000, would be outside the applicable six year limitation period. The claim in injurious falsehood was expressly referred to by counsel for the plaintiff in opening and was the subject of the express attention and treatment in the plaintiff's written submissions. An application was only made on behalf of Lynette Crimmins to amend so as to plead a limitation defence long after the evidence had been completed and after an adjournment of several months to allow time for final written and oral submissions. This application for leave to amend her defence to plead s 38 of the Limitation Act 1935 (WA) was foreshadowed on 14 August 2006. The application was made at the resumption of the hearing (for final submissions on 15 August 2006), but I refused the application that day (t/s 2203 ‑ 2211) because of the late stage at which the amendment was sought and the need, if it were permitted, which would have arisen to re‑open the case and to take more evidence to determine an issue which could have been raised long before. Having regard to the long time this action was pending before it came to trial, and during the unfortunate but inevitable adjournments of the trial, there was no want of opportunity for such an application to have been made in due time for it to have been addressed by further evidence, but that did not occur.
Conclusion
For these reasons I consider that the plaintiff's claim in the first action, No CIV 2231 of 1999, should be dismissed but in the second action, No CIV 2490 of 2000, there should be judgment against the defendant Lynette Crimmins for damages for injurious falsehood in the amount of $272,676.
17