Scholes v Commonwealth of Australia - [2021] FCA 1593

FEDERAL COURT OF AUSTRALIA
Scholes v Commonwealth of Australia [2021] FCA 1593

File number(s): VID 480 of 2019

Judgment of: KERR J

Date of judgment: 17 December 2021

Catchwords:
TORTS – tort of false imprisonment – whether consular assistance provided to the Applicant for his ‘rescue’ in the aftermath of his having been kidnapped in Nigeria was imposed on him contrary to his consent – application dismissed

EVIDENCE – Applicant’s witnesses not giving evidence – whether the Court is entitled to draw a Jones v Dunkel inference

COSTS – whether manner of conduct of Respondent’s case may warrant limited departure from ordinary rule that costs follow event

Legislation:
Evidence Act 1995 (Cth)

Oaths and Affirmations Act 2018 (Vic)

Cases cited:
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 53

Jones v Dunkel [1959] 101 CLR 298

Nominal Defendant v Rooskov [2012] NSWCA 43

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 297

Date of hearing: 5-8 October 2021

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr A Dinelli with Ms S Kearney

Solicitor for the Respondent: Maddocks Lawyers

ORDERS

VID 480 of 2019

BETWEEN:
ALISTAIR PETER SCHOLES

Applicant

AND:
COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

KERR J

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:
1.The Applicant's application be dismissed.
2.Unless either party advises the Court by no later than 14 January 2022 that they would seek an alternative order, the Applicant shall pay the Respondent’s costs of the proceeding (including any costs thrown away by reason of the Respondent providing arrangements for the Applicant to call witnesses in Nigeria) other than the costs of the trial on 5-8 October 2021.
3.If either party seeks an alternative order as is provided for in Order 2 the parties shall have until no later than 4:00pm 21 January 2022 to file and serve any written submissions (limited to 3 pages) upon which they may seek to rely in relation to costs.
4.Unless the Court otherwise orders any question of costs so arising be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

[1]

THE TRIAL: PROCEDURAL ADJUSTMENTS REQUIRED BY COVID-19

[13]

MR SCHOLES’ EVIDENCE

[20]

Evidence-in-Chief

[20]

Mr Scholes’ limited concession

[24]

Cross-examination

[28]

Mr Scholes’ history with Tola and Tayo Yusuf and the context of his travel to and conduct in Nigeria

[28]

Other evidence given by Mr Scholes in cross-examination

[62]

The balance of Mr Scholes’ case: the absence of his other scheduled witnesses

[99]

Documentary tenders

[108]

THE COMMONWEALTH’S EVIDENCE

[110]

Cleo Wilson

[110]

Paul John Lehmann

[123]

Brian Mitchell Taylor

[133]

Jennifer Ann Dee

[146]

Mustapha Oshoke Aliyu

[150]

Daniel Lemmer

[163]

CONSIDERATION

[169]

The credit of witnesses

[169]

The Commonwealth’s submission regarding the “bizarre” nature of Mr Scholes’ evidence undermining his general credit

[175]

The reality of Mr Scholes’ consent

[194]

Did Mr Scholes tell Ms Wilson he would accept consular assistance?

[200]

Did Mr Scholes nonetheless refuse consent to his collection by Pilgrims in Ilero?

[214]

Absence of corroboration

[271]

Post arrival in Lagos until Mr Scholes was given his passport, money and credit cards back

[285]

Findings

[286]

If I am wrong in primary findings

[287]

CONCLUSION

[289]

COSTS

[290]

KERR J:
INTRODUCTION

In December 2017, the Applicant (Mr Scholes) and his fiancé Ms Tayo Yusuf (Tayo) were kidnapped in Nigeria.
The bus they were travelling in was stopped by an explosion and, the evidence suggests, the driver killed. In any event it is uncontentious that armed men entered the bus and took Mr Scholes and Ms Yusuf with them into the surrounding bush.
Demands were made for their release. Mr Kareem Muhammed Alaba (Mr Alaba), Tayo’s stepfather, contacted Mr Abiola Yusuf (Mr Abi Yusuf), Tayo’s brother, who was resident in Melbourne. On or about 1 December 2017, Mr Abi Yusuf notified Victoria Police that Mr Alaba had received a telephone call from an unknown person demanding a ransom in relation to the kidnapping. Victoria Police immediately notified the Department of Foreign Affairs and Trade (DFAT) of that information. There were some communications between the Yusuf family and DFAT regarding the ransom demand, but while DFAT was sympathetic to Mr Scholes’ plight it made clear that it could not assist in facilitating a ransom payment. No issue arises in that regard.
It is common ground that on 6 December 2017, Mr Scholes and Tayo were released by their kidnappers following the payment to them of a ransom. Certain events that occurred in the close aftermath of their release are the subject of this proceeding.
Mr Scholes’ case is that from 7–10 December 2017 he was falsely imprisoned by the Respondent (the Commonwealth) following his having rejected its offer of consular assistance. He had been taken on the night of 7 December 2017 against his will from the village where he was staying with his fiancé by security contractors that had been engaged by the Commonwealth to collect him and return with him to Lagos, a city in Nigeria. The security contractors were accompanied by heavily armed men. He had agreed to their demands that he go with them only because he had no means to resist. They had declined to allow him to take his fiancé with him. He had been escorted by them (with an overnight stop on the way) to Lagos. After arriving in Lagos he had remained effectively in the custody of DFAT. He had been given no choice but to return to Australia against his will. He had left Nigeria on 10 December 2017 by air.
The Commonwealth does not dispute that DFAT engaged private security contractors to rescue Mr Scholes from the danger it had understood him to be in, that he had been picked up by them, and that they had conveyed him to Lagos. It also does not dispute that throughout that period DFAT encouraged Mr Scholes to return to the safety of Australia as he ultimately did.
The Commonwealth’s case is that all of its actions were undertaken with Mr Scholes’ knowledge and consent and in a manner consistent with the DFAT guidelines for the provision of consular assistance.
As originally pleaded Mr Scholes’ case also involved claims against the Australian Federal Police (AFP) in respect of the conduct of its agents after Mr Scholes had been met by them at the Melbourne International Airport on his return from Nigeria. No more need be said in those regards. On 8 October 2020 the Court dismissed those claims by consent with no order as to costs.
Mr Scholes’ pleadings (as also refers to the affidavits that were agreed to stand as his pleadings) filed in this proceedings are, without any discourtesy to him, self-evidently those of a legally unrepresented litigant. Nonetheless, consistently with its obligation as a model litigant the Commonwealth throughout accepted that it understood in the broad the case it was required to answer and, for that reason, did not seek to have Mr Scholes’ pleadings struck out.
However because the pleadings did not usefully frame the issues between them, the parties sensibly reached agreement that the trial should be conducted not by reference to those documents but instead by reference to an agreed list of issues.
On 15 April 2021 the Court ordered by consent that the trial be set down for hearing on an estimate of 5 days on the basis of the following list of issues:
1.At any time between the evening on 7 December 2017, when the Applicant was collected by the Respondent’s agents from Ilero, and the morning of 8 December 2017, when the Respondent’s agents delivered the Applicant to the Sheraton Hotel in Lagos, was the Applicant’s restrained against his will by the Respondent’s agents?
2.If yes to Issue (1), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
3.At any time between the morning of 8 December 2017, when the Applicant arrived at the Sheraton Hotel in Lagos, and when Mr Scholes boarded his flight to Australia at the Lagos international airport on 10 December 2017, was the Applicant restrained against his will by the Respondent’s agents?
4.If yes to Issue (3), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
5.If yes to any of the above, did the relevant conduct of the Respondent’s agents, in the circumstances, constitute the tort of false imprisonment with regard to the Applicant?
6.If yes to Issue (5), what is the measure of the damages or compensation for that tort to which the Applicant has proven an entitlement?
The trial was thereafter listed with an estimate of 5 days and scheduled to commence on Monday 4 October 2021. Case management orders were made providing for the taking of evidence out of ordinary court hours by video link from the parties’ respective witnesses resident in Nigeria.
THE TRIAL: PROCEDURAL ADJUSTMENTS REQUIRED BY COVID-19
As matters eventuated COVID-19 restrictions prevented the use of the Federal Court in Melbourne to enable the trial to commence on Monday 4 October 2021. In consequence the first day of the trial had to be vacated.
Mr Scholes advised he would be able to make arrangements to facilitate his appearing by video link from his home the following day. Both parties consented to the trial proceeding on that basis.
The trial commenced on the morning of Tuesday 5 October 2021. Fortunately the video link that Mr Scholes had established proved robust. No technical difficulties of any substance were encountered in the course of the trial.
The loss of the first day of the trial fortunately did not necessitate changes being made to the schedule for taking of evidence from witnesses from Nigeria. Both parties co-operated with procedures such that the trial, notwithstanding the loss of the first day, was able to be concluded within the week that had been set aside for it. I am grateful to both Mr Dinelli, counsel for the Commonwealth, and Mr Scholes for their goodwill and cooperation in those regards.
One of the cooperative steps the parties adopted to save time was to accept that Mr Scholes’ opening statement (excluding his references to the documents he intended to adduce as part of his case) could stand as his evidence-in-chief. Mr Dinelli made no objection to that course being adopted so long as Mr Scholes gave sworn evidence that what he had stated in his opening was the truth. The imperative to save time was influenced by the scheduling of Mr Scholes’ three overseas witnesses to give their evidence by video link from Nigeria later that evening (Australian time). The parties and the Court were agreed that Mr Scholes’ evidence-in-chief and his cross-examination, as would be relevant to the evidence of his witnesses in Nigeria he intended to call, should if possible be adduced before the Court heard from those overseas witnesses.
After Mr Scholes had been sworn, had deposed to the truth of what he had said in opening and confirmed that he had intended simply to recount what he had said in opening as his evidence such that the Court was satisfied he would suffer no disadvantage, it made orders permitting Mr Scholes’ statement in opening to stand as the bulk of his evidence-in-chief. The trial proceeded on that basis. Doing so allowed Mr Scholes’ evidence-in-chief and cross-examination as to the events in which his intending witnesses were to be called to be completed before those witnesses were scheduled to be called.
However, as I shall return to later, all three of the residents of Nigeria who Mr Scholes had given notice of intending to call as witnesses, including his fiancé, Tayo, failed to make themselves available for that purpose. Mr Scholes had earlier intimated that he had feared such a possibility might arise but had not applied for an adjournment. Upon it being established that his intending witness would not be giving evidence Mr Scholes indicated that he wished to continue nonetheless. The trial proceeded with Mr Scholes being the only witness in his case.
MR SCHOLES’ EVIDENCE
Evidence-in-Chief
On the basis of the agreement between the parties, Mr Scholes thus opened his case and gave evidence-in-chief as follows:
My initial contact with DFAT was on 6 December 2017 when I was handed the phone by … [my fiancé, Tayo Yusuf’s] stepfather, and I spoke to an unidentified DFAT female officer in a short conversation. I said to her that I did not wish any assistance, nor require any assistance, from DFAT and that I was returning to the village with the stepfather, Tayo, my fiancée and the security men that had rescued us from the jungle.
The caller encouraged me to contact my mother and brother in Australia, which I subsequently did, and I told the woman during the conversation that I believed that Tola [Tayo’s sister] was behind the kidnapping and reiterated that I did not require DFATs assistance.
She asked me if she could ring in the morning; I dismissed it with an unenthusiastic, “Yes, if you want.” That was the end of the phone call.
The following morning we departed the hotel and returned to the village of [Ilero]. At or about 8.30 hours the stepfather handed to me the phone again, saying the same DFAT female had rung again. I again reiterated to her that I did not require any assistance. She said that – she said they had called for a rescue convoy come and get me – that it had left Lagos and would be there around midday, I said “Why?”
I said I did not require their assistance, and I said I do not have any choice in the matter, and she said no. And I said I do not have any money to pay for the rescue, and that she said she would ring back within an hour to discuss that issue. She then made spurious allegations against my fiancée, Tayo, and the Yusuf family in general, and also claiming the stepfather was not who I believed he was. She claimed my life was in danger if I remained with the Yusuf family.
I told her she was talking rubbish and all the information had come from Tola who I believed was behind the hijack. She said not to discuss our conversation with the Yusuf family – in particular, Tayo. I ended the call. At or about 9.30 the stepfather again handed me the phone, saying the same woman was calling. I told the caller I was not interested and I did not require their assistance. Again, I attempted to remain pleasant with her, reiterating I did not require DFATs assistance. She again made spurious allegations against the Yusuf family, and once again I terminated the call.
…. For the remainder of 7 December 2017 there was no further contact between myself or any other Australian official or authority…. For the remainder of the day Tayo, and myself and other members of the Yusuf family went around [Ilero] shopping, having a haircut and shave, and thanking family members within the village for their support and concern during the horrific events that had overtaken Tayo and myself.
At or about 2230 hours three vehicles arrived in front of the Yusuf home. They assumed they were the convoy that DFAT had sent. Upon meeting the team leader, who introduced himself as Muhammad, I protested, stating I did not require DFATs assistance. When he stated that he had been ordered by my government to come and pick me up and convey me safely to Lagos I continued protesting. He stated, “We have to leave immediately, because [Ilero] is not a safe place” for me to remain in. I said, “Why?” I continued protesting, saying that if I was going Tayo was coming with me. A short time later he came back and said, “We are – we only have to – we” – sorry. “We only have orders to pick you up at this time.”
Between eight and 10 heavily armed men with AK-47 shotguns appeared to be moving towards myself and Muhammad.
He demanded that I get into the vehicle and, to avoid any further arguments, I simply gave up when I realised whatever I wanted was not going to occur. I was apprehensive about travelling at night; apprehensive about being in – under the control of these people, considering that I had told DFAT that I was not interested in their services.
Some 10 to 20 minutes into the drive Muhammad turned around and said to me, “We’ve made a mistake. We can’t go back. We’ve gone too far.” I continued protesting all the way to Ibadan, but to no avail. Muhammad asked me if I had any money to pay for the hotel. I said, “I have nothing.” And I continued protesting, realising nothing was going to happen in my favour, or change the mindset of Muhammad.
In the morning I got woken up by Muhammad knocking on the door, and he told me that we had – “We are leaving shortly for Lagos.” I quickly packed myself up and readied for the departure, still protesting. When we reached the outskirts of what I believe is Lagos I had a massive panic attack, anxiety, and the onset of PTSD. I demanded that Muhammad stop the vehicle so I could get out and vomit. I dry-retched and felt terrible. Once my nerves had settled I was sitting back in the vehicle; Muhammad asked how did I feel and I said, I do not want to be with him. I wanted to go back to Tayo. ….Muhammad, who goes by another name in his affidavit, said that event occurred the previous day, and I say it didn’t.
We later stopped briefly for breakfast and a toilet stop. Muhammad became concerned when I wished to go to the toilet by myself, and one of the police officers accompanied me the toilet…. We later stopped for fuel and I was left in the vehicle alone. I realised there was an opportunity to steal the car and drive back to [Ilero] and my fiancée, Tayo.
When Muhammad, the driver, hopped back into the vehicle I told Muhammad what I had planned to do. He turned around and said, “I’m glad you did not do that, because people in Canberra would have been very upset.”
There [were] numerous phone calls made by Muhammad. On two occasions he handed me the phone. One of the callers identified himself as Greg from DFAT. The other identified himself as Paul Lehmann.
Upon arrival at the Sheraton Hotel I waited in the vehicle, as I was told to do by Muhammad, as it was surrounded by heavily armed police that had escorted us from [Ilero] whilst Muhammad located a DFAT officer. Upon entry into the hotel lobby I was introduced to Paul Lehmann, the Australian High Commission of – Commissioner for Nigeria. ….he [says] that meeting didn’t occur there. I again beg to differ.
We had a preliminary introduction and I realised that I had been taken from the safety of my in-law’s village, [Ilero] and was no longer – had any control over what was about to happen to me, having been placed, now, in an alien environment where I was totally dependent on the respondent. I had no personal possessions; no identify; no money; absolutely nothing, and my phone was not charged at that point, nor did I have credit to make any phone calls.
Mr Lehmann made a booking for the hotel room where I was going to stay, and I was also introduced to the manager at the hotel, Andrew, who was from Adelaide. The three of us took the lift to the fifth floor of the hotel and I was shown to my room by Paul Lehmann and Andrew. Paul Lehmann and I spent what I believed was some 30 to 60 minutes discussing what had occurred. I expressed my concerns and told him about my idea of stealing the car and returning to [Ilero] and my fiancée, Tayo Yusuf. …, he disputes that conversation in his affidavit. I say otherwise.
He said to me that I should think about my safety and return to Australia. I said I wasn’t interested, and I wanted to return to [Ilero] and my fiancé Tayo. Mr Lehmann then informed me that Brian Taylor was coming from Abuja with my passport and other stuff, to which I was completely unaware of, because I had not informed DFAT where any of my personal property was.
Mr Lehmann requested that I did not leave the room and did not go down to the lobby and mingle with other guests, or have – or go to the drinks night that Andrew, the hotel manager, had invited me to…. As I was so tired and missing Tayo, I wasn’t really interested.
Upon leaving, Paul Lehmann gave me 5000 – 15,000 naira [equivalent to about $A50.00], his contact details and that of Brian Taylor and the High Commission in Abuja, and the name of a female officer I was talking to; Cleo Wilson.
Upon Mr Lehmann leaving, I rang Cleo Wilson protesting about what had occurred and told her I considered stealing the car, of which she notes in the DFAT emails. …She again reiterated the advice given by Paul Lehmann. I protested again, given I was in a hostile environment; I knew nobody; had no idea where I was in Lagos; I had no money; no identity, and I was now totally dependent on DFAT.
I rang Tayo on the hotel phone and explained where I was; what had happened, and I said to her that I wanted to come back… but there was nothing either of us could do about what had happened. I said, “Don’t worry.”
…. I asked Paul Lehmann about the visas, how to go about applying for her, and the [kids] to come and see me in Australia. I said I was going to have a shower and go to sleep and there was some other DFAT officers coming from Abuja that afternoon. I had a shower and went to sleep.
I was awoken by a telephone call on the hotel telephone. The caller identified himself as Brian Taylor from DFAT. After a brief discussion, Brian Taylor came to the room, we sat down and had a brief discussion. I informed him of being removed from safety of [Ilero] and brought to Lagos against my will.
We sat down in the beer garden and continued our discussion where he returned the property.
I explained to him what had happened, the hijacking, the kidnapping, and being held captive in the jungle and a trip into Lagos. I also explained to him that I was going to steal a car and return to the Yusuf family village and my fiancé, Tayo.
I formed the opinion…even though I believed Brian Taylor was sympathetic to my situation, he was following DFATs program of returning me to Australia no matter what I said. After dinner that evening, realising nothing I would say or do would change the situation, with Brian’s assistance, I changed my departure airline ticket to return to Australia. Brian Taylor also organised that afternoon a meeting with Nigerian DSS the following day. Some time later, after further conversations, Brian Taylor walked me back to my room, upon saying goodnight, I retired to bed after speaking to Tayo.

It is unnecessary to refer verbatim to Mr Scholes’ evidence-in-chief regarding the subsequent events that took place. Towards the conclusion of the hearing, Mr Scholes accepted that his contention that he was restrained against his will by the Commonwealth could not be maintained beyond the time when his “property” (passport, credit card, and money in the sum of $1000 USD) had been returned to him by Mr Brian Taylor (Mr Taylor).
The balance of Mr Scholes’ evidence-in-chief included that he was born in September 1959. He works as a nurse at the Royal Melbourne Hospital. He had travelled to Nigeria in mid-September 2017. Regarding the circumstances of his kidnapping, he evidence-in-chief was:
[Tayo Yusuf and I] boarded the bus in Ibadan on 28 November, at around 11.30 in the evening, to travel to Abuja, to go and recover my property from Tola [Tola Yusuf, Tayo’s sister] after discussions with her broke down and she refused to return my property and passport money and whatever else was left at Keffi when we came down for a family religious gathering in Lagos. During the night…. around 1 o’clock in the morning, the bus was stopped, what I thought was originally a tyre blowout, then people screaming, and kidnappers burst into the bus and they grabbed myself, hauled me out, took me into the jungle, then brought me back, and that’s when I re-met with Tayo and they took the two of us into the jungle and said we had been kidnapped.
…When I was under captivity, that’s what they said they were or they would sell us onto – onsell us to Boko Haram and Hezbollah…. And Tayo did most of the talking to the terrorists, not – or the bandits, not me, so – because I was without my blood-pressure medication, and… the two of us looked after each other and kept each other alive in the circumstances. And the bandits had said that they had blown the front of the bus up. In all the confusion I didn’t bother whether that was the truth or not, because I wasn’t standing around going to argue with somebody pointing an AK-47 at me. Then negotiations started up to get our release with ransom payments…
It is uncontentious that he and Tayo were held for 8 days and 8 nights by their kidnappers before they were released after the payment of a ransom.
Mr Scholes’ evidence is that after their release he and Tayo were collected by Tayo’s stepfather, Mr Alaba, and two members of the Ilero community, one of whom he understood was a DSS officer. Prior to meeting Mr Taylor in the Sheraton Hotel his evidence is that he had not informed DFAT where his possessions and passport were, other than that he didn’t have them.
Mr Scholes’ limited concession
I am satisfied that Mr Scholes’ concession as I have referred to at [21] above was fully justified. So long as Mr Scholes remained without his money, credit card and passport perhaps it may have been plausible for him to contend that he had remained in DFAT’s custody notwithstanding he had been brought to Lagos and had been accommodated in a hotel that DFAT was meeting the costs for. It might be accepted that it would have been impractical to the point of irresponsibility for Mr Scholes to have left his accommodation in those circumstances.
However, after having acknowledged in cross-examination that there was nothing to justify any suggestion that he had been subject to a restraint, physical or economic, as would have stood in the way of him leaving the hotel where he was staying after that time had he wanted to return to Ilero (or to have remained in Lagos having invited his fiancé to join him there), Mr Scholes was undoubtably correct to recognise that a finding by the Court that he had remained in DFAT’s custody against his will beyond that point of time was not open on the evidence.
All of the evidence relating to events after that time is consistent with Mr Scholes having then been free to act as he chose. He, inter-alia, brought forward his scheduled return to Australia using his own credit card, paying a supplement for that purpose. In light of Mr Scholes’ concession that he would not press his case of false imprisonment beyond that point of time it is uncontentious that Mr Taylor helped Mr Scholes arrange his voluntary departure including assisting him to resolve a difficulty Mr Scholes encountered in getting through Nigerian immigration and customs on his exit after it was discovered that his visitor’s visa had expired.
However, out of caution, I interpolate that my conclusion that Mr Scholes’ concession was justified and should be accepted should not be construed as a finding on the Court’s part that his later conduct was inconsistent with the case he continued to press. Logically Mr Scholes may have initially been compelled against his will to travel to Lagos, but was later persuaded, in the different circumstances then applying, that it would be prudent for him to voluntarily follow the advice DFAT was then offering him.
Cross-examination
Mr Scholes’ history with Tola and Tayo Yusuf and the context of his travel to and conduct in Nigeria
Much of Mr Dinelli’s extensive cross-examination of Mr Scholes involved counsel adducing evidence from Mr Scholes relating to the circumstances in which he first met certain members of the Yusuf family and had later travelled to Nigeria where he had formed a relationship with his fiancé, Tayo. As those circumstances became the subject of counsel’s closing submissions as to Mr Scholes’ credit it is convenient to set out in some detail the evidence Mr Dinelli adduced from Mr Scholes in those regards.
Mr Scholes’ evidence is that he met Tayo’s sister, Ms Tola Yusuf (Tola), in or around mid-2013. At that time they both were undertaking a practical placement required for a nursing course they were attending at Victoria University. He had met Tola’s brother earlier in 2012 or 2013 when they also had been studying together so that they had some pre-existing familiarity. He had given Tola a lift to their common practical placement over a period of about two weeks. During that time they struck up a platonic friendship but their contact with each other came to an end when the placement was over. Mr Scholes thought that might be explained because she had become married after returning to Nigeria.
In 2015 their paths crossed again through Facebook. Tola was then living in Nigeria. Mr Scholes and Tola resumed communications. Tola told him that she was coming back to Australia. They discussed where she might live. He told her that she could stay at his place if she needed somewhere to live. Before Tola returned to Australia she asked Mr Scholes for money for various reasons. Those circumstances included when she had informed Mr Scholes that her father had become sick during the Ebola pandemic. Tola had struck him being an honest person. He had sent her around $20,000 in total. That included about $200 for her father’s funeral in Nigeria.
In mid-2016 Mr Scholes was sent a Facebook message from Tola informing him she was coming back to Australia. He offered to pick her up from the airport. She arrived with a young girl, ‘Princess’. Tola initially referred to Princess as her sister’s child but later told Mr Scholes that she was her own daughter. Mr Scholes’ impression of Tola at the time of her arrival was that she had been withdrawn and “petrified”. She was not the same bright bouncy chirpy girl he had come to know. He speculated that her changed personality may have been the result of her having been beaten by, and otherwise suffered at the hands of, her former husband.
Tola and her daughter moved into his house. Mr Scholes continued to support Tola financially. He put around $10,000 into a small business importing clothes from Nigeria that she had tried to establish.
They lived together for around 10 months, in Mr Scholes’ words, as a “non-sexual family unit”.
In early 2017 Tola spoke of wanting to go back to Nigeria. After six years of university studies Mr Scholes was exhausted. He had become interested in Nigeria as a place he might retire to.
Tola “sold him” on the idea of a holiday on the beaches in Lagos, at “Satellite Town”. She said she wanted him to meet her family to allow them to thank him for looking after her in Australia. She told Mr Scholes a visa would cost $200 but she could arrange a longer-stay visa for an extra $1000. He had given her that money. Mr Scholes made bookings with Flight Centre in Werribee to fly to Lagos on 14 September 2017 and to return on 26 January 2018. He and Tola then flew there with Princess armed with gifts from Tola’s brother for the family.
After Tola had assisted him through customs in Lagos they were met by Tola’s mother Mrs Titilayo Yusuf (Mrs Yusuf); Mr Alaba; a friend of Tola’s, ‘Sami the Soldier’; and a driver. To Mr Scholes’ surprise they did not then travel to Satellite Town. Instead Mr Scholes found himself travelling with that small group to Ilero, the Yusuf family’s home village.
After four days with the Yusuf family in Ilero, Tola informed Mr Scholes that they (Tola, Tayo and Sami) would be going to Keffi, a town about 2 hours south of Ilero. Sami lived in Keffi.
Sami drove Mr Scholes, Tola, and Tayo to Keffi. On their arrival Sami dropped Tola off with a man she introduced to Mr Scholes as “Uncle Bill” and took Tayo and Mr Scholes to stay at a hotel in his village. Tayo and Mr Scholes lodged at the hotel for two days. They then moved to Uncle Bill’s home. Mr Scholes then, or soon afterwards, discovered that Uncle Bill was not Tola’s uncle. He was her boyfriend. His name was Ade.
Mr Scholes denies having been bothered by discovering that Tola had a boyfriend. His evidence in cross examination is that he had enjoyed having Tola stay with him at his home in Australia but he hadn’t been interested in having a relationship with her beyond having someone to talk to after years of living alone with his head in his studies. He had also enjoyed playing with her young daughter, Princess. She had called him “Daddy”. However for the trip to Keffi, Princess had remained with the Yusuf family in Ilero.
Mr Scholes, Tayo, Ade and Tola lived together in Ade’s house in Keffi for around 6 weeks. At some point during that period he and Tayo became close. By the end of their stay in Keffi they had established a relationship. Mr Scholes describes his relationship with Tayo as by that time already “very strong, very caring and very loving”.
In late October 2017, Mr Scholes, Tayo and Tola travelled back to Ilero. They did not stay long in Ilero. The Yusuf family originally had come from Lagos. In late October 2017 Mr Scholes travelled to Lagos with the Yusuf family to attend a religious festival.
However, by that time his friendship with Tola had soured. In the course of conversations with the Yusuf family Mr Scholes had discovered that Tola had lied to him in obtaining money from him including telling falsehoods about her father’s ill health and death. Tola’s behaviour and attitude towards both Mr Scholes and the other members of the Yusuf family had changed after this came to light.
Mr Scholes proposed to Tola that when she returned to Australia and resumed work as a nurse she would start paying off the money he had given her. Mr Scholes referred to the amount they discussed as $20,000. In cross-examination he conceded that if all of the assistance he had given Tola, including help for her business and accommodation, was added up the total of the financial assistance he had provided her might be as much as $60,000.
In addition Mr Scholes had also given Tola money in Nigeria after they had arrived at Keffi. That included some funding (to which Ade had also contributed) for her to undertake a beautician’s course.
Mr Scholes began “negotiations” with Tola to retrieve his money, passport and credit cards. He had given those to Tola for safe keeping. As events turned out Mr Scholes’ property had been left behind in a locked room with other valuables when they had left Keffi for Ilero on the way to the religious ceremony. However Tola had given him numerous different explanations as to where his possessions were.
I interpose that in cross-examination Mr Scholes acknowledged that later he had also discovered that unbeknownst to him Tola had not obtained for him the long term visa for which he had given her $1000 (so he only had a short term visa – which he inadvertently overstayed) and that she had also used some of the $2000 he had brought to Nigeria as “emergency money” to buy a generator.
The last time Mr Scholes saw Tola was at the religious festival in Lagos.
After the festival Mr Scholes returned to Ilero with other members of the Yusuf family. He lived with Tayo and the Yusuf family at their family home for about a month. He spent a lot of time with Tayo and her two children, a daughter who was around 6 years old at that time and a younger son about 2 years old. Mr Scholes had given Tayo’s children affectionate nicknames “Spider” and “Bulldozer” respectively. He had never met or enquired as to their father’s identity. Tayo had had nothing to do with him.
Mr Scholes was anxious to get his possessions back.
On 28 November 2017 Mr Scholes and Tayo left Ilero. They travelled with Mrs Yusuf, (who Mr Scholes had come to refer to as Mumma Yusuf) to Ibadan in order that he and Tayo could catch a bus to Abuja. Mr Scholes wanted to go to Abuja because the village elders in Ilero had made arrangements with their relations in Abuja “to go and retrieve his passport and possessions from Tola”.
A neighbour of the Yusuf family, a local pastor, had driven them to Ibadan. After they arrived at Ibadan in the afternoon, Tayo and Mrs Yusuf paid for two tickets on a bus scheduled to leave for Abuja at 9:30pm. The ABC bus company Mr Scholes and Tayo had reservations to travel on was a premier local transport company. Mrs Yusuf and the pastor then returned to Ilero leaving Mr Scholes and Tayo to wait for the bus. Mr Scholes was the only expatriate in the crowds of people waiting at the terminal for busses that were coming and going.
The ABC bus to Abuja left Ibadan two hours behind schedule at around 11:30pm. As Mr Scholes gave in evidence-in-chief, it is uncontentious that that bus had been stopped and he and Tayo were kidnapped and held in the bush by their captors for 8 days. After a ransom was paid they were released by the side of a road from where Mr Alaba and two others from Ilero, one of whom worked for the DSS (one of Nigeria's police services), picked them up.
Their release came as a massive relief for Mr Scholes. He and Tayo were driven by car to a local hotel. There was time only for a brief discussion about the kidnapping before Mr Scholes and Tayo were shown to their room for the night.
I will return to the evidence Mr Scholes gave in cross-examination as to his dealings with DFAT as is in dispute but in so far as his history with Tola and Tayo is concerned, which is the subject of this aspect of his evidence, the next relevant circumstance is that Mr Scholes then returned with Tayo to stay with the Yusuf family in Ilero. On Mr Scholes’ account he was with the Yusuf family outside of their house for a social gathering on the night of 7 December 2017 when three cars containing armed men arrived. His recall is that one of the men introduced himself as “Muhammed” and informed him that he had instructions from the Australian government to take him to Lagos.
Mr Scholes’ evidence is that from the outset he told ‘Muhammed’ that he did not want consular assistance and did not want to go with him. However, “because there was 12 – 10 to 12 – eight to 10 guys standing around with AK-47s and shotguns [he] wasn’t going to argue with them.” Having resigned himself to having no alternative he had asked Muhammed if Tayo could come too. He did not want to leave her behind. Muhammed had made a phone call and came back to him later and said no. Having no choice Mr Scholes had complied with Muhammed’s demand that he travel with them.
Once in Lagos and lodged at the hotel that DFAT had arranged for him to stay at Mr Scholes had spoken to the Australian High Commissioner to Nigeria, Mr Paul Lehmann (Mr Lehmann), about what had happened. He told Mr Lehmann that he was disappointed that his fiancé Tayo had not been allowed to come with him. He told Mr Lehmann that they just survived 8 days and 8 nights in the jungle and he was upset that Tayo had been separated from him. Mr Lehmann had explained that “they couldn't pick up Tayo because she was not an Australian national”.
Told that it would be Mr Lehmann’s evidence that he had done so, Mr Scholes denied asking Mr Lehmann for a favour in arranging a “fast track visa” for Tayo. Mr Scholes accepted that he had told Mr Lehmann that Tayo was his fiancé and had asked him about the procedures for pursuing a visa for her and her children to come to Australia. He had asked Mr Lehmann if in light of the circumstances of his kidnapping Mr Lehmann would “go as a referee” for him.
Mr Scholes’ evidence in cross-examination is that he told Mr Lehmann that he thought Tola had been involved in the kidnapping. He had later repeated his concern that she had been involved to police both in Nigeria and in Australia.
After arriving back in Australia Mr Scholes moved in with Mr Abi Yusuf. While he was still living at Abi’s home on 8 January 2018 Mr Scholes sent a letter to the Australian High Commissioner in South Africa (Exhibit R1) “in support of Tayo’s application for her and the two children to come to Australia on a long stay tourist visa”.
Asked in cross-examination why Tayo had not been granted that visa, Mr Scholes answered “because they said that the relationship wasn’t genuine and for other information on departmental files”.
Mr Scholes still stays in regular contact with Tayo. They speak every day except when rainstorms or other conditions prevent it. Since Mr Scholes resumed working in early 2018 he has sent Tayo $200 every fortnight. He also has paid for Spider and Bulldozer’s school fees and birthdays along the way.
Other evidence given by Mr Scholes in cross-examination
After Mr Scholes and Tayo’s release they and his rescuers took lodgings overnight in a local hotel.
Mr Scholes acknowledged that after they had checked in Mr Alaba had given Mr Scholes his phone so that he could speak to a woman from DFAT. Mr Scholes accepted that he later came to know that person was the Deputy Head of Mission, Ms Cleo Wilson (Ms Wilson). Ms Wilson had asked him where he was. Mr Scholes had not been able to answer her question because he did not know.
Ms Wilson asked him if he was okay. He assured her that he was. Mr Scholes rejected that Ms Wilson had asked him if he needed medical assistance. He had simply assured Ms Wilson that he was okay. He had told Ms Wilson he was planning to go back to Tayo’s village and stay with the Yusuf family. Ms Wilson had discouraged him doing so. Ms Wilson had offered him consular assistance on behalf of the Australian Government to get to a safe location. He had refused that offer. Notwithstanding it having been put to him that Ms Wilson would give a different account he was unshaken in that regard. However he had agreed that Ms Wilson could ring him again the next morning. She had done so.
Mr Scholes denied that he had the WhatsApp application on his phone. He denied having sent a WhatsApp message to Ms Wilson to inform her he was safe in the hands of Nigerian DSS and would be moved to a safer location.
Mr Scholes denied having spoken to Ms Wilson around mid-day the following day. Mr Scholes’ evidence was that the only times he spoke to Ms Wilson on 7 December 2017 were twice, first at 8:30am and second at 9:30am. They spoke on Mr Alaba’s phone. Mr Scholes’ evidence is that he did not and could not have received any texts from Ms Wilson because the battery on his phone was flat. For the same reason he had not and could not have sent any texts to her later in the day. In any event he had no knowledge of her contact details.
In respect of their conversations on the morning of 7 December 2017 Mr Scholes’ evidence was that Ms Wilson spoke to him about his personal safety. She suggested he should make his way to either Abuja or Lagos. Ms Wilson informed him that if he needed DFAT’s assistance there would be a cost involved. Mr Scholes’s evidence was that he had told her he couldn’t afford that and in any event he had made it clear that he was not interested in leaving Ilero and he did not require DFAT’s assistance. He denied having spoken to Ms Wilson about the possibility of Tayo accompanying him to Lagos from Ilero.

He robustly denied, notwithstanding Mr Dinelli forcefully challenging him on the point, that he had ever accepted DFAT’s offer of assistance.
Mr Scholes denied that Ms Wilson told him that she was arranging for someone to pick him up. He denied that Ms Wilson advised him that as a westerner who had already been kidnapped, he was at a high risk of being further targeted.
Mr Scholes’ evidence is that Ms Wilson made concerning claims about his fiancé Tayo and his stepfather Mr Alaba. She suggested to him that his life was in danger while he remained with Tayo and the Yusuf family. She told him that there were “many strange features to this matter and everyone remained a suspect”. Mr Scholes’ evidence is that he dismissed the concerns Ms Wilson had about the Yusuf family in Ilero as “rubbish”. He denies speaking to Ms Wilson again before he was collected (on his account against his will) and brought to Lagos.
Mr Scholes acknowledges being picked up from the Yusuf household by Pilgrims Africa Limited (Pilgrims) later that night. It is uncontentious that Pilgrims is the private security company DFAT engaged.
Mr Scholes’ evidence in cross-examination was that the village of Ilero is in the centre of a collection of other local villages. He learned to find his way around Ilero without ever coming to know the name of the street in which the Yusuf home could be found. His evidence was that he “guessed” that if someone wanted to find a specific house in Ilero “you would ask your way around”.
Mr Alaba had been with him at all times on the evening of 7 December 2017. For that reason he knew that Mr Alaba had not given Pilgrims any directions to the Yusuf household. Had that happened Mr Scholes would have heard him speak on the phone to them. He denied that Mr Alaba ever left the house to meet the Pilgrims team. Mr Scholes’ evidence as to how he supposed Pilgrims could have found the house was that he assumed that Pilgrims had gone to the local police station and had got directions to the Yusuf family’s residence from them.
Mr Scholes’ evidence was that the Pilgrims vehicles arrived at the Yusuf family home at around 10:30pm. Mr Scholes and the Yusuf family were then outside for a social gathering at which several of the local community, including the pastor who had driven him and Tayo to Ibadan, were attending.
A man from Pilgrims left his vehicle. He introduced himself to Mr Scholes as ‘Muhammed’. Mr Scholes later learned his name was in fact Mustapha Oshoke Aliyu (Mr Aliyu). Mr Aliyu told Mr Scholes that he had been ordered “by [Mr Scholes’] government” to pick him up and convey him to Lagos.
Mr Scholes found himself surrounded by armed men with shotguns and AK-47s. At the time he thought they were all police. He accepted in cross-examination that Mr Aliyu may not have been armed but at the time he had believed that all of them were.
Mr Scholes’ evidence is that he told Mr Aliyu that he did not want to travel with him to Lagos.
All of the Yusuf family were protesting. Tayo was crying and saying “no”. So too was Mrs Yusuf.
Mr Scholes’ evidence is that in the face of armed men with their guns openly displayed he had no choice but to go with the Pilgrims team. When it became clear that he had no choice, he asked Mr Aliyu whether Tayo would be allowed to travel with him. He told him he did not want to leave his fiancé behind.
Mr Aliyu had made a phone call and had come back later and told him she was not included in his mission.
Mr Scholes’ evidence is that, compelled by circumstances, he got into a Pilgrims’ vehicle with Mr Aliyu. The three cars left the Yusuf house in a convoy. A car full of heavily armed men drove in front and one followed behind. He was in the middle vehicle. Mr Scholes heard Mr Aliyu speaking to someone who announced himself as ‘Greg’. Mr Scholes’ evidence is that if there was no-one in DFAT with that name nonetheless that was his recall. Mr Aliyu had also spoken to other people on his phone.
At some point after departing the Yusuf family home Mr Aliyu turned around to Mr Scholes saying to him “they” had made a grave mistake (which I take to be a reference to Pilgrims failing to allow him to bring Tayo with him), but that it had gone too far and they couldn’t turn back.
Mr Dinelli put to Mr Scholes that his evidence of that conversation was not the truth. Mr Scholes however maintained adamantly that it had been said to him by Mr Aliyu.
Later Mr Aliyu had informed Mr Scholes the convoy was at risk of running out of petrol. The convoy stopped and its passengers had stayed overnight at a hotel. Mr Scholes did not know where that hotel had been. The next morning (8 December 2017) the convoy resumed its trip to Lagos and stopped at a service station somewhere for breakfast on the way.
Mr Scholes overheard some discussion between Mr Aliyu and DFAT officials about cancelling a television interview during the trip to Lagos.
Eventually the convoy had arrived at the Sheraton Hotel in Lagos. Mr Aliyu introduced Mr Scholes to Mr Lehmann, the then Australian High Commissioner for Nigeria. Mr Scholes had thanked Mr Aliyu “for doing the job he had to do”.
Mr Scholes recalls, notwithstanding having been informed that Mr Lehmann would give a different account, that he and Mr Lehmann met in the lobby. Mr Lehmann had arranged for Mr Scholes to be booked into the hotel. Later he and Mr Lehmann had gone to Mr Scholes’ room on level 5 where, despite Mr Dinelli informing him that Mr Lehmann’s recall was that their meeting lasted for only 15 minutes, Mr Scholes recalled them having a long discussion. Cross-examined as to whether he had complained to Mr Lehmann that he had been brought to the Sheraton against his will, Mr Scholes gave evidence as follows:
I said I was – I was disappointed with the way that I was taken out of the village – that I was going to steal a car and return because I didn’t want to be there.
You didn’t say to him that you were at the Sheraton, though, against your will at all, did you?---I said I was disappointed with what had happened. I wanted to be with my fiancée, and I wanted to go back where – Ilero, and I was not happy with the situation. And, as I said yesterday, there was little I could do about it because I had been taken out of Ilero against my will and the relative safety of the village and put in an alien environment which I couldn’t do much about.
Mr Scholes informed Mr Lehmann of his belief that Tola had been involved in his kidnapping. Cross-examined as to his evidence-in-chief that Mr Lehmann had stated that DFAT had acted upon fundamentally flawed information Mr Scholes gave the following answer:
…Mr Scholes, Mr Lehmann never said to you that DFAT had actually upon fundamentally flawed intelligence?---He said that they had acted on information that, in the light of what I had said, was not true.
It is uncontentious that Mr Lehmann gave Mr Scholes the contact details for two other DFAT officials: Mr Taylor and Ms Wilson. He told Mr Scholes that Mr Taylor was coming from Abuja to meet him.
Mr Scholes concedes that before Mr Lehmann left he told him that he was grateful for what the High Commission had done for him – qualifying that as follows:
Now, during that discussion you also said to him, though, that you were grateful for what the High Commission had done for him (sic)?---As grateful as much as one could be that they had been taken out of the safety and plonked in the middle of the city; you had no idea of where to go; you had no identity, and I was very cheesed off with everything.
After Mr Lehmann left the Sheraton Mr Scholes had called Ms Wilson, had a shower and gone to sleep.
His cross-examination in respect of the conversation he had with Ms Wilson was as follows;
Now, did you – did you speak to her – did you mention to her, when you spoke to her about your kidnapping experience, that is, the experience that you had had in the countryside in Nigeria?---No.
Well, you didn’t say anything to her about being forced by Pilgrims to come to Lagos, did you?---I said I wasn’t going to steal a car and return to Ilero and to Tayo.
But you didn’t say that you had been forced to come to Lagos, did you?---I said I was unhappy with what had happened and that I was going to steal the car and drive back to Ilero and to Tayo.
Well, she never – and Ms Wilson never said to you that she had acted on any fundamentally flawed information, did she?---She said that she had acted on information from Tola and others and after speaking with me she said they were getting mixed messages.
She didn’t describe it, though, at any time, as fundamentally flawed, did she?---Not the words to that effect, no.
In documents that you’ve prepared for this case, though, you have said that Cleo Wilson conceded to you personally that the information was fundamentally flawed, haven’t you?---I said that – I wrote that. That’s my interpretation of what she was saying that the information that she had was flawed once she had spoken with me about what had happened.
Ms Wilson never apologised with you – never apologised to you about not bringing Tayo, did she?---After I told her that Tayo was my fiancée she was disappointed that we had been separated.
And she also told you that any assistance provided by the Australian Government was limited to Australian citizens, didn’t she?---Yes, because that is the – the mantra of DFAT.
Well, you know it’s more than a mantra, it’s a policy, isn’t it, Mr Scholes?---Yes, I am aware of that.
Mr Taylor arrived at the Sheraton at about 3:00pm or 4:00pm on 8 December 2017. He and Mr Scholes sat in the Sheraton’s beer garden to discuss events. Mr Taylor asked him how he was. They discussed the kidnapping. Mr Scholes told Mr Taylor that he wanted to meet with the DSS (Nigerian police) to report what had happened. He repeated to Mr Taylor his belief that Tola was involved.
Notwithstanding Mr Dinelli putting to Mr Scholes that each of Mr Lehmann, Mr Taylor and Ms Wilson had asked him whether he needed medical treatment Mr Scholes’ evidence is that none of them had ever done that.
Cross-examined regarding whether he had taken the opportunity to complain to Mr Taylor that he been taken from Ilero against his will Mr Scholes gave the following evidence;
Now, you didn’t say to him that you had been forced to get into the car in Lagos, did you?---I said I was upset with what had happened, and that I wanted to go back…
You did not say to Mr Taylor, at any time that afternoon, that you had been forced by Pilgrims to come to Lagos, did you?---I said words to the effect that I was not happy with what had happened.
I interpose that it is uncontentious that in the course of Mr Scholes’ and Mr Taylor’s discussions in the Sheraton’s beer garden Mr Taylor had returned to Mr Scholes his passport, his credit card and $1000 USD in cash all of which he had collected, on Mr Scholes’ behalf, from Tola.
It is also uncontentious that although Mr Scholes, on his account, told Mr Taylor that he wanted to go back to Ilero later in the evening, he had later used Mr Taylor’s phone to call the Flight Centre office in Werribee, Australia and made voluntary arrangements to bring forward his scheduled flight to leave Nigeria.
In light of Mr Scholes’ concession that he does not press any claim to have been held against his will past the point of time when his possessions were returned to him by Mr Taylor it would be otiose to detail all of Mr Scholes’ evidence past that point as he gave in cross-examination. That evidence which I take to have relevance to the claims Mr Scholes’ continues to assert is as follows:
·Mr Scholes acknowledges that during his interview with the Nigerian DSS he made no claim of having been taken against his will by Pilgrims from Ilero.
·Mr Scholes acknowledges that on his departure from Lagos to Melbourne he thanked Mr Taylor for the job “that had to be done” and gave Mr Taylor a hug out of appreciation for him listening to him.
·Mr Scholes acknowledges that he had earlier claimed that the AFP officers who had collected him on his arrival in Melbourne from Nigeria had had falsely imprisoned him. He acknowledges that he had earlier consented to those claims being dismissed.
·Mr Scholes acknowledges that he made no claim to have been taken against his will by Pilgrims from Ilero in the course of his formal interview with the AFP on 13 December 2017. Mr Scholes’ explanation for that is that he earlier had complained to the AFP’s Family Liaison Team officers who picked him up at Tullamarine airport. His formal interview was conducted under strict arrangements limited to his kidnapping which had prevented him making such a complaint at that time.
·Mr Scholes acknowledges that the first time he put anything in writing to complain about his account of having been taken against his will by Pilgrims from Ilero was in his letter of 13 December 2017 to the High Commissioner in South Africa in which he had urged that Tayo and her children be granted a visa to visit him in Australia.
The balance of Mr Scholes’ case: the absence of his other scheduled witnesses
As foreshadowed in general terms, Tayo, Mrs Yusuf, and Mr Alaba were scheduled to give evidence on Mr Scholes’ behalf in this trial on the evening of Tuesday 5 October 2021 by video link from Nigeria. All failed to make themselves available for that purpose.
Because Mr Dinelli submits that the Court is entitled to and should draw Jones v Dunkel [1959] 101 CLR 298 inferences having regard to that circumstance it is convenient to say something briefly about how that came to pass.
From the outset of this proceeding Mr Scholes made plain he intended to rely on the evidence of those three members of the Yusuf family. Mr Scholes also intended to call the pastor who, on his case, had driven him and his fiancé to Ibadan prior to their kidnapping and who had been with the Yusuf family for a social event on the evening when Pilgrims had arrived at the Yusuf home in Ilero to collect him and transport him to Lagos.
When during case management hearings it became evident that as a self-represented litigant Mr Scholes was facing considerable difficulties in putting in place arrangements in Nigeria for those witnesses to appear by video link, the Court enquired of Mr Dinelli as to whether video facilities might be made available by the High Commission for that purpose. In the end the Commonwealth agreed to make arrangements (at its expense) with a legal firm with offices close to Ilero where there would be a translator available to assist the taking of Mr Scholes’ witnesses’ evidence by video link. A schedule for the witnesses’ evidence was agreed between the parties well in advance of the trial.
In respect of the pastor it is uncontentious that Mr Scholes gave notice that he had left Ilero and was living elsewhere in Nigeria. He could not be located. In that circumstance Mr Dinelli indicated he would not be asking the Court to draw a Jones v Dunkel inference in the pastor’s instance. However that is not the case with Mr Scholes’ other three witnesses.
In the teeth of the trial Mr Scholes advised that he was fearful that Tayo might not be able attend to give evidence as scheduled. She had told him she had been sick and had gone to hospital. However Mr Scholes provided no evidence or gave sworn support for that contention. The Court made it clear to Mr Scholes that having regard to the extent of the arrangements which had been put in place by the Commonwealth both at its expense and with his agreement, no explanation for a witness’s non-appearance would be accepted unless it was supported by evidence.
I take it to be uncontentious that Mr Scholes clung to hope to the very last that of his three witnesses at least Tayo, his fiancé, would choose to give evidence. Mr Scholes resisted accepting that Tayo was not going to give such evidence until after the video link was established between Australia and the lawyers’ offices in Nigeria at the scheduled time and it became evident she would not do so.
In closing oral submissions, having regard to the above, a discussion took place between the Court and Mr Scholes regarding whether the Court should accept Mr Dinelli’s submissions that it should draw Jones v Dunkel inferences having regard to the absence of his witnesses:
HIS HONOUR: All right. Well, I don’t think I can hear you at all [in the absence of sworn evidence] as to the fact that there was a good reason for their non-attendance in the sense that your witness was hospitalised or that the weather was bad and they couldn’t get there. Considerable efforts were made to make arrangements for their attendance. All I can conclude is they didn’t. I would be entitled to accept that you are upset they didn’t appear and that you pressed as far as you could to keep open that possibility to the very last.
MR SCHOLES: That’s correct, your Honour. And I appreciate the Commonwealth for their attempts to – their offers of assistance in that regard. That is appreciated, Mr Dinelli. Thank you. And as I said, I apologise to the court for their non-appearance and I am extremely upset that they didn’t appear.
I will return to what I should make of their non-appearance in due course.
Documentary tenders
The parties agreed to a common tender of documents being admitted as evidence in each of their cases. Those the Court received as evidence in Mr Scholes’ case are Exhibit A1 to Exhibit A8 but with a limitation that Exhibit A6 and Exhibit A7 were accepted de bene esse on the basis that they might be relevant if damages were in issue. As I have concluded that the Commonwealth is not liable in damages I am satisfied that nothing in Exhibit A6 or Exhibit A7 is relevant.
I have also given close attention to the other documents that were admitted into evidence in Mr Scholes’ case. None are a contemporaneous record of events as he experienced them. In so far as those documents put in issue whether certain events occurred I am satisfied that they add nothing to the evidence adduced orally on Mr Scholes’ behalf in this proceeding. I have concluded that none of those Exhibits assist Mr Scholes or are dispositive of this case. The conduct of other agencies of the Commonwealth such as the Commonwealth Ombudsman and others that Mr Scholes has provided reference to in his Exhibits (even if I was to accept some falling short on their part which I decline to do given that there is no forensic basis for that conclusion) are not material to the foundational facts which are the subject of these proceedings.
THE COMMONWEALTH’S EVIDENCE
Cleo Wilson
At the time the events occurred, Ms Wilson was the Deputy Head of Mission at the Australian High Commission in Nigeria. The physical location of the Commission was in the capital Abuja not its largest city Lagos. Ms Wilson is now employed as a Policy Officer by the Commonwealth.
Ms Wilson gave her evidence-in-chief by affidavit. Much of that evidence is background and not contentious in this proceeding. Ms Wilson gave evidence that when Mr Scholes travelled to Nigeria, DFAT’s Smartraveller page on that country had described it as a “Level 3-Reconsider your need to travel” country due to the high threat of terrorist attack, the high risk of kidnapping, the unpredictable security situation, the possibility of violent civil unrest and the high level of violent crime.
Ms Wilson was the mission’s then security officer. The Australian High Commission had a contract with Pilgrims for the latter to provide permanent security services at the High Commission’s premises and at the High Commissioner’s personal residence. Pilgrims also provided other security services for the mission as agreed from time to time. Pilgrims employees were not authorised to carry firearms. If armed support was needed it was provided through the Nigerian Mobile Police (MOPOL).
In Ms Wilson’s role as the mission’s security officer she had been informed of the events of Mr Scholes’ kidnapping. She had been required to inform the Scholes and Yusuf families that the Australian government had a firm policy of not allowing itself to become involved in the payment of ransoms. Nonetheless she had been aware of private negotiations with the kidnappers. She learnt that Mr Scholes and Tayo were released after payment of a ransom on or around 6 December 2017. Her first priority having learned of their release had been to speak with Mr Scholes directly to ascertain his welfare and to offer him the assistance of the Australian government in getting him safely to Abuja or Lagos.

Turning now to what is in dispute, Ms Wilson’s evidence-in-chief was that on the evening of 6 December 2017 she spoke to Mr Scholes after having called Mr Alaba’s phone. She asked Mr Scholes if he was in need of medical assistance. Mr Scholes replied that he did not. He referred to his being able to make that judgment having previously been a paramedic. Mr Scholes had agreed to Ms Wilson informing his family in Australia of his release.
Ms Wilson’s evidence-in-chief was that she asked Mr Scholes if he needed assistance to make his way to Abuja or Lagos. She had warned him there might be a cost involved. Mr Scholes had asked if Tayo could come with him. Ms Wilson had ended that call on the basis that she would call Mr Scholes back the next morning.
Ms Wilson’s evidence-in-chief was that she had had trouble connecting with Mr Scholes the next morning but when they finally were able to speak he agreed to accept the Commonwealth’s offer of assistance:
31 . When I managed to speak to Mr Scholes later that morning, he informed me that, despite our first discussion1 he had travelled to Ilero with Ms Yusuf and her family. I knew this to be a significantly more remote location than where he had been the night before. Having regard to the Smartraveller travel advisory for Nigeria, and noting Mr Scholes had already been kidnapped, I was concerned for his safety, particularly as he was now in a more remote location. I again said to Mr Scholes that he should look after his own personal safety and recommended that he make his way to Abuja or Lagos as soon as possible. I asked him again if he required assistance to get to Abuja or Lagos and noted that there may be a cost involved if the Australian government provided assistance. Mr Scholes accepted the offer for assistance and said he understood there might be a cost involved. During this second call, Mr Scholes seemed far more jovial than the first. He sounded relieved.
32. During that second substantive call:
(a) I did not allege that Tayo Yusuf or the Yusuf family were involved in the kidnapping. I could not have done so because I did not know who was involved in the kidnapping, nor do I know now.
(b) I did not allege that Mr Scholes' life was in grave danger whilst he remained with Tayo Yusuf and the Yusuf family. As is my usual approach in my various roles overseas, and in Canberra, when such matters arise, I would have repeated the Smartraveller travel advisory and strongly encouraged him to get to Abuja or Lagos as quickly as he could. I specifically repeated the advice that the threat of kidnapping was high in all parts of Nigeria and that westerners, like Mr Scholes. were targeted. In making this recommendation I was mindful that his family had already paid a ransom once, and that if locals became aware that a ransom had been paid for his return, there was an increased risk that he would be kidnapped a second time.
(c) I did not tell Mr Scholes that a security team had already departed Lagos and would arrive in Ilero at midday. Although I had been informed by SAO Taylor that he had put Pilgrims on standby, until Mr Scholes had verbally accepted the offer of assistance in the second call, I understood that SAO Taylor had not formally engaged Pilgrims to collect Mr Scholes. Indeed, neither SAO Taylor nor I would have known where to send Pilgrims, until Mr Scholes confirmed his whereabouts with me. Therefore, I would not have been able to tell him that they would be with him by midday. Although I do not recall saying it, I may have told him that we would send our security contractors to collect him as soon as possible.
(d) In that phone call with Mr Scholes, as with all of my phone calls with him during that time, I listened to what Mr Scholes had to say. At no time did Mr Scholes tell me that he did not want assistance from the High Commission.
After speaking with Mr Scholes Ms Wilson contacted Mr Taylor to confirm Pilgrims’ engagement to collect Mr Scholes. Once she had done that her evidence is that she spoke on at least three occasions to Mr Scholes to give him regular updates on Pilgrims’ progress. Mr Scholes confirmed that he was looking forward to being picked up. She had not said anything to coerce Mr Scholes to act contrary to his will:
33. Following Mr Scholes' acceptance of my offer of assistance in the second call, I asked SAO Taylor to formally engage Pilgrims to collect Mr Scholes.
34. During the day on 7 December 2017, I spoke with Mr Scholes briefly another two or three times. The engagement of Pilgrims took longer than expected and we were informed by Pilgrims that the traffic was bad and slowing their progress. I called Mr Scholes two or three times to give him regular updates of their progress as I wanted to ensure he felt safe. At no time during those telephone calls did Mr Scholes state (or say anything to suggest) he no longer wished to be collected by Pilgrims, nor did I sense he felt he was being coerced to accept the offer of assistance. During these brief update phone calls, Mr Scholes did raise with me whether Ms Tayo Yusuf would be allowed to accompany him to Lagos. On each occasion Mr Scholes raised this with me, I again told him that Pilgrims' assistance was just for him, as an Australian citizen.
In cross-examination it became evident that Ms Wilson had only a limited present recall of the details of those events.
Ms Wilson could not remember whether she had asked Mr Scholes if he had wanted to stay with his fiancé. She could not remember if later after his return to Lagos he had told her that when the convoy had stopped for fuel he had considered stealing the car he was in and returning to Ilero. She accepted that her evidence of the timing and detail of the events she had deposed to in her affidavit was essentially a reconstruction she had settled based on her review of what she had written in cables and e-mails:
MR SCHOLES: Ms Wilson, as his Honour said, you’ve put an extensive affidavit together three years after; how can you not recall three telephone conversations – the contents of them?---I recall telephone conversations, sir, but not the specifics on time. In terms of the affidavit, well, it’s written off – it – it’s taken from me recalling things through looking at the cables that I had written at the time.
So the contents of our telephone conversations you don’t recall?---Not without referring directly back now to the cables and the emails I took – I did write at the time.
HIS HONOUR: But there are no cables that record that the – what you said in direct speech or what Mr Scholes said in direct speech. I assume that all of the relevant documents have been discovered; they’re available to the court. I’m just asking a simple question: how could you provide the detail you did in your extensive affidavit by reference to the cables when the cables don’t provide that detail if you don’t remember – if you don’t have a present recall?---I – I – I – I, sir – your Honour, I have a – a recall on information which was then added to by looking again at the cables and the emails I had – had written. I – I am – I am afraid I am just not specifically good at remembering dates and – and times as a – a personal character flaw.
However as to the critical and central issue of whether Mr Scholes had given his consent to being collected Pilgrims by Ms Wilson robustly asserted that she did have a firm present memory of that fact: that he had done so.
MR SCHOLES: Ms Wilson, you write in your affidavit, starting on page 7:
Mr Scholes accepted the offer of assistance. He understood there might be a cost.
I put it to you that I said, no, I do not accept your offer?---I disagree with your recall of that conversation.
I put it to you that you said to me the convoy had left. I said I had no choice, and you said no. That is my recall – recollection of the conversation?---I disagree with your recollection of the conversation.
HIS HONOUR: When you say you disagree with that recollection, do you have a present memory or is your recollection that which obtains from what you wrote in your affidavit from something in the materials? Do you have a present recollection of that conversation?---I – I do have a present recollection, your Honour, because as an Australian diplomat I can never force an Australian of their own free will to do anything that they don’t choose to. That is part and parcel of my obligations as a diplomat, and there is no way that I would at any stage stray outside of those obligations - - -
Okay?--- - - - and disrespect an Australian - - -
MR SCHOLES: Ms Wilson, I said to you on three occasions no. Why was the Pilgrims team sent to Ilaro to pick me up if I had said “No”?---I disagree with your recollection of those conversations.
In view of Ms Wilson’s concession that the balance of her evidence-in-chief was litte more than a reconstruction of events as she had noted them in the contemporaneous e-mails and cables she had authored it is convenient to refer to those materials as Mr Dinelli later put in evidence.
In my view there is but one document of any significance in that regard. It is a cable Ms Wilson authored and sent at 6:05pm on 7 December 2017. Her cable had a wide distribution including to the Prime Minister. It is headed Consular: Scholes Kidnapping Case: Update 12. In the cable Ms Wilson refers to herself as DHOM. Its text is as follows:
Summary
Mr Scholes rang to inform Post today (approximately 12:30 Abuja time) that he, Ms Toya Yusuf and Mr Kareem had travelled to Mr Kareem's village (Ilero in Ogo State). Mr Scholes move came despite Post's warning that he should be looking to move safely to Abuja or Lagos. Post again expressed its concerns about Mr Scholes' location and general well-being. Mr Scholes agreed to being collected and moved to Lagos by Post's security provider this evening (7 December). He said his adventure was over and agreed it was time to return to Australia. HOM will meet Mr Scholes on his arrival in Lagos tonight. Post has retrieved Mr Scholes' travel documents and credit card.
1. Mr Scholes rang DHOM today (7 December) to inform Post that he was now at the village (Hero) [sic] of Mr Kareem (i.e. the stepfather of Ms Toya Yusuf) in Ogo State. The move occurred despite a conversation with Post shortly after his release that - for his own safety - he should move to Abuja or Lagos (email Price/Wilson refers).
2. During the conversation, DHOM expressed Post's ongoing concerns about his location and well-being. Mr Scholes assured DHOM that Mr Kareem's house was surrounded by security and he was staying inside. (Comment: its unclear to Post who the security provider is.) DHOM sought and received Mr Scholes' permission for DFAT/AFP to share information about him and his situation with his family in Australia (AA553190L also refers)._
3. Mr Scholes made a series of allegations concerning Ms Tola Yusuf (the sister in Abuja), including that she had stolen USD 6,000.00 and may have been involved in the kidnapping, DHOM again noted that Post was extremely concerned about his location and that he needed to take steps to ensure his own safety. DHOM suggested that Post assist him with arranging safe travel to Abuja or Lagos. Mr Scholes agreed to move to Lagos.
4. Mr Scholes noted that his diary, passport and credit card were with Ms Tola Yusuf. DHOM said Post would arrange their return. (Comment: SAO has been in contact with Ms Tola Yusuf and the items were collected this afternoon (7 December). The documents will be transferred to Lagos tomorrow morning.)
5. In keeping with Post's reception plans, Post's security provider, Pilgrims, has been on stand-by since Friday evening (1 December). A Pilgrims team and armed police departed Lagos at approximately 15:00 to collect Mr Scholes. Pilgrims expects to arrive in Ilero at around 18:00/19:00. Sufficient security has been taken to return to _Lagos tonight.
6. During a second phone call with Mr Scholes at around 15:00, DHOM confirmed that Post's security was on its way. DHOM suggested that Mr Scholes seriously consider departing Australia as soon as possible and offered Post's assistance with this process. Mr Scholes seemed relieved and noted that his adventure was over. While his blood pressure was fine, he advised he was anxious and hyper-vigilant. He became slightly emotional. (Comment: Post has made further enquires with the British in Lagos to see about the possibility of quality counselling services for Mr Scholes, if required.) DHOM undertook to talk to him once he was with Pilgrims.
7. On his arrival in Lagos, Mr Scholes will be taken to a hotel and met by HOM.
…
Paul John Lehmann
At the time the events occurred, Mr Lehmann was the Australian High Commissioner to Nigeria. As at the time of the trial Mr Lehmann was serving as Deputy High Commissioner, Australian High Commissioner to Papua New Guinea.
Mr Lehmann gave his evidence-in-chief by affidavit sworn on 19 November 2020 (Exhibit R3).
The key elements of Mr Lehmann’s evidence-in-chief include that he had had regular briefings about Mr Scholes’ kidnapping. He had been in Lagos for other reasons on 8 December 2017 and had taken the opportunity to meet with Mr Scholes shortly after his arrival with the Pilgrims team at the Sheraton to check on his welfare. He had gone to Mr Scholes’ room to meet with him. During their short meeting Mr Scholes told him both that he was grateful for everything the Australian High Commission had done for him and about how relieved he was to be brought to safety. Mr Scholes said nothing about his having withheld or withdrawn his consent to the consular assistance that had been provided to him. Knowing that Mr Scholes had no funds Mr Lehmann had given him a small amount of his own money (the equivalent of $50) so Mr Scholes could buy food and personal items. Mr Scholes had later returned that amount to him.
Mr Scholes had raised his disappointment that Tayo had not been permitted to travel with him. In response Mr Lehmann had explained DFAT’s policy that consular assistance is not provided to citizens of a foreign country who are present in the country of their citizenship. Mr Scholes had then asked him whether he could do him a favour and arrange a fast track visa for his fiancé. Mr Lehmann’s evidence was that he had responded that he did not have that authority and recommended that Tayo apply for a visitor’s visa through the normal online channels.
Mr Lehmann’s evidence-in-chief was that he had left after about 15 minutes to attend to other tasks but had returned to the Sheraton later in the afternoon to make sure Mr Scholes had comfortably settled in. He met Mr Scholes briefly in the lobby. Mr Scholes expressed his desire to return to Australia at the earliest opportunity. Mr Lehmann had told Mr Scholes that he would be free at any time to apply for a visa to return to Nigeria or Tayo could apply for a visa to visit him in Australia. He told Mr Scholes his principal concern at that point of time was for Mr Scholes’ safety and welfare as an Australian citizen. His recall of what Mr Scholes had said as is material to this proceeding was that;
20. During my meetings with Mr Scholes:
(a) he said nothing at all to suggest that he had been taken to, or remained at, the Sheraton Hotel under any circumstances other than with full consent on his part and following an express request for consular assistance. He did not mention having been subject to any form of duress and he did not make any complaint about the services he had received from Pilgrims' employees or anyone else. On the contrary, he was relieved that his ordeal was over. I do recall that Mr Scholes told me that the overnight trip to Lagos had been uncomfortable due to the poor state of repair of the road;
Mr Lehmann’s evidence-in-chief was that if Mr Scholes had ever withdrawn his request for consular assistance at any point, provision of that assistance would have been discontinued immediately.
In cross examination Mr Scholes put to Mr Lehmann that he had met with him only once – in the morning. Mr Lehmann responded that he had a firm recall to the contrary. Mr Scholes put to him that that could not be true as he had been booked to fly to Abuja that afternoon. Mr Lehmann responded that flights in Nigeria were often delayed. He had a clear memory of them meeting twice. He was unsure whether Mr Taylor had also been at the second meeting. He may have been.
Mr Lehmann accepted that it would have been consistent with his views at the time for him to have asked Mr Scholes to stay in his hotel room until Mr Taylor arrived at 4:00pm. If he had done so it would have been out of concern for Mr Scholes’ welfare and so he could rest after his experiences.
Mr Scholes put to Mr Lehmann that he had never expressed a desire to return to Australia “at the earliest opportunity”. Mr Lehmann responded that he remembered Mr Scholes agreeing with him that returning without delay to Australia was the most sensible thing to do in the circumstances.
Mr Lehmann’s evidence in cross-examination was that he had had no conversation with Mr Scholes in which Mr Scholes had raised that he had earlier considered stealing a car and returning to Ilero. Mr Lehmann had no personal knowledge of that ever having been said. He had read the cable which had mentioned Mr Scholes making such a statement only recently.
Put to him that the High Commission had acted on mischievous information that had been supplied to it by Tola and for that reason things had been taken out of Mr Scholes’ control, Mr Lehmann’s concluding evidence in cross-examination was as follows;
Well, your Honour, I categorically reject that contention. It’s all very well for Mr Scholes to put that, but it does not mean I accept any part of it. You know, cables are prepared, in these circumstances, based on information we receive. We operate, in these situations, in a very information poor context. Any – any oral information may or may not be either useful or truthful, but we have to do our best to try and learn as much as we possibly can in order to provide the assistance to people who have asked for it. We are not a law enforcement or investigation body. You know, we do not – if someone tells us something we will listen to that. We don’t necessarily know. We don’t know all of the circumstances. We never claim to. But we are trying to work out what it is we can do to assist Mr Scholes based on whatever information we – we are able to ascertain.
Brian Mitchell Taylor
At the time of Mr Scholes’ kidnapping Mr Taylor was the Senior Administrative Officer at the Australian High Commissioner in Nigeria. At the time of the trial he is retired.
Mr Taylor gave his evidence-in-chief by way of an affidavit affirmed on 19 November 2020 to which there were five annexures (Exhibit R6).
Mr Taylor gave uncontentious evidence as to the relationship between the Australian High Commission and Pilgrims. He explained that Pilgrims is a private security contractor. Pilgrims has an excellent reputation and has also provided services to other diplomatic missions. Pilgrims’ routine work for the Commonwealth was to provide 24 hour security for the Australian High Commission and the High Commissioner in Abuja. It also had staff in other parts of Nigeria. Its services were engaged by Mr Taylor for security tasks outside of the capital on an ad hoc basis. His evidence-in-chief was:
20. Generally, if the Australian High Commission needed to engage Pilgrims for security and transport in other parts of Nigeria, I would contact Pilgrims, explain the nature of the task and ask them to provide recommendations for the form of transport and security to be provided. Pilgrims would submit recommendations and a quote for their services. I would then confirm the engagement and, when the job was complete, Pilgrims would send an invoice to the Australian High Commission for the services provided.

However the truth of what Mr Scholes did state to Mr Wilson is nonetheless relevant to that further question. A finding that Mr Scholes had informed Ms Wilson he would accept the consular assistance he had been offered is potentially significant to the Court’s assessment of his later conduct.
I mean no disrespect to the firm conviction that I accept Mr Scholes has as the truth of his evidence of but I do not think it open to me to conclude that his account of having firmly rejected Ms Wilson’s offer on three occasions can be accepted. That is not because I am satisfied that Ms Wilson has a more plausible recall of the detail of those events. In cross-examination Ms Wilson conceded that her present recall was quite limited.
I have reached that conclusion nonetheless having regard to the fact that Ms Wilson being unshaken in the critical core of her evidence that Mr Scholes had agreed to accept the consular assistance DFAT had offered him is corroborated by the near contemporaneous cable that Ms Wilson authored and sent at 6:05pm on 7 December 2017, that is on the afternoon of the same day as is uncontentious that both she and Mr Scholes spoke. The full text of that cable is set out at [122] above.
Parts of Ms Wilson’s cable appear to accurately record circumstances which I am satisfied must have been the subject of their conversations. For example in paragraph 4 Ms Wilson records Mr Scholes raising with her that his diary, passport and credit card were with Tola and Ms Wilson having responded that “Post” would arrange for their return. It is, I infer, common ground that that is what Ms Wilson arranged for and that is what Mr Taylor secured. No other premise but that it was what Mr Scholes told Ms Wilson can reasonably explain that event. That there might be some unrecorded account of Tola providing the information is highly implausible.
It is often remarked that an ounce of documentary evidence is worth a pound of later recall – I see no reason why that well-worn adage should not be applied in this instance. The cable Ms Wilson authored and sent is consistent with and significantly corroborative of her evidence.
While Ms Wilson does not appear to have made verbatim notes of what was said as between herself and Mr Scholes what she records at paragraphs 4 and 6 of the cable she authored and sent very shortly after those conversations is unambiguous. In it Ms Wilson records Mr Scholes having agreed to being moved to Lagos. She records that she had later spoken to Mr Scholes later to inform him that “Post’s security was on the way”. She records that Mr Scholes seemed relieved and had “noted that his adventure is over”. What Ms Wilson recorded as to Mr Scholes’ position as set out at paragraph 6 of her cable cannot be accounted for by innocent misunderstanding. Ms Wilson was unshaken in cross-examination that she had a firm present recall that Mr Scholes agreed to accept the consular assistance she had offered to make available to him and that she would not have proceeded to make the arrangements she did had he refused it.
If there might be a plausible motive for Ms Wilson to have falsely recorded that Mr Scholes had accepted her offer and had told her that his “adventure was over” such a motive was not put to Ms Wilson in her cross-examination. Nor do I apprehend there to be any reason inherent in the context of events for the Court independently to infer she may have had such a motivation. It was common ground that Ms Wilson’s firm view at the time was that Mr Scholes would be best advised to leave Ilero for the safety of Abuja or Lagos but what might have motivated her to lie about Mr Scholes’ willingness to accept her advice and then set in train events to pick him up from Ilero is elusive.
In cross-examination Mr Scholes asked Mr Lemmer (the Lagos based director of Pilgrims) whether the High Commission had told him that Mr Scholes had consented to his being rescued to which Mr Lemmer answered affirmatively. Mr Scholes did not further cross-examine Mr Lemmer to the effect that his answer was false. He did not put to him that that Pilgrims had been instructed by the Commonwealth to seize Mr Scholes and bring him to Lagos irrespective of his consent.
In the above circumstance I reject that Mr Scholes’ evidence is to be preferred over that of Ms Wilson.
Preferring Mr Scholes’ evidence would require the Court to accept that Ms Wilson not only falsely recorded his having consented to being collected from Ilero in an official cable sent to the highest level of government but also that she would risk putting in train the engine of an expensive “rescue mission” by Pilgrims on that deceitful premise. If the truth was not as she recorded, Mr Scholes could have simply refused to co-operate with Pilgrims on the basis that on three occasions he had firmly rejected Ms Wilson’s offer of consular assistance. The uncontested evidence before the Court is that Pilgrims was told that Mr Scholes had agreed to be picked up by its team from Ilero and transported to Lagos. I address below why I am satisfied that there is no reason to doubt Mr Alyiu’s evidence that had Mr Scholes told him he did not want consular assistance he would have contacted his boss. His boss, who had been informed that Mr Scholes had consented to the assistance Pilgrims was tasked to provide, could have been expected to have brought that unanticipated circumstance to the High Commissioner’s attention.
Ms Wilson would have had to have risked, without any plausible reason for her taking such that risk having been suggested, being blamed for having set in motion an expensive wild goose chase.
I am satisfied, notwithstanding Mr Scholes’ memory and evidence to the contrary, that Mr Scholes did tell Ms Wilson he had accepted her offer of consular assistance for his transport from Ilero to Lagos.
I specifically find that Ms Wilson also informed Mr Scholes (as is recorded in paragraph 6 of her cable) that “Post’s security” was on the way to collect him.
Did Mr Scholes nonetheless refuse consent to his collection by Pilgrims in Ilero?
However that is not the end of the matter. I have earlier indicated that that it might be accepted that Mr Scholes told Ms Wilson that he was prepared to accept consular assistance but that would not preclude the possibility that he had changed his mind by the time the Pilgrims convoy turned up. If he had changed his mind, Mr Scholes would have been entitled to have his reconsidered position respected no matter the inconvenience his earlier indication might have occasioned.
However I do not accept that it is open to the Court to conclude, on the balance of probabilities, that to be the fact.
Two witnesses gave first hand evidence of the events of that night; Mr Scholes and Mr Aliyu.
I have earlier indicated that I am satisfied Mr Scholes gave evidence in this proceeding consistently with the truth as he recalled it. However that a witness believes his or her evidence is the truth does not compel a finding that the facts are as that witness recalls.
Thus I have earlier concluded, with the benefit of the corroborating contemporaneous record made by Ms Wilson that her evidence is to be preferred to that of Mr Scholes regarding his having told her that he wished to have the assistance she had offered him.
Nothing in Mr Aliyu’s demeanour or responses during his cross-examination suggested any want of credit on his part. Mr Scholes did not challenge the history Mr Aliyu gave as to his background and experience in the provision of highly sensitive and important security services or attack his credit generally.
I record my finding that Mr Aliyu was, in every respect, a highly impressive witness.
If a concession became appropriate (as it did when Mr Scholes put to him that his having to stop the car to allow Mr Scholes to vomit from stress occurred on the run in to Lagos rather than the night before) he readily and without any resentment accepted correction.
On all of the critical points of his testimony Mr Alyiu was robustly unshaken in cross-examination.
Putting aside for a moment Mr Dinelli’s submission that the Court would be entitled to draw a Jones v Dunkel inference, the position is that there are two witnesses of events in which each played a significant part each giving evidence of their honest recollection of the relevant events but in respect of which one must be mistaken.
For Mr Scholes to succeed on the balance of probabilities he must persuade the Court that his account that he had told Mr Aliyu that he did not want to leave Ilero is to be preferred over that given by Mr Aliyu to the effect that when he had arrived Mr Scholes was waiting outside with the Yusuf family for the Pilgrims team to arrive; Mr Scholes had appeared entirely willing to go with him and had never told him that he wanted to stay in Ilero.
I am not so persuaded.
In respect of all but one of the critical aspects in which he and Mr Aliyu’s evidence is in conflict there is nothing to corroborate Mr Scholes account. The one exception is in relation to his evidence of having, on the drive into Lagos, told Mr Aliyu that he had had thoughts about stealing one of the Pilgrims’ vehicles and driving back to Ilero. I will return to that particular instance later and explain why, even if Mr Scholes did tell Mr Aliyu that he had considered that possibility, that does not serve as a basis for preferring his evidence more generally over that given by Mr Aliyu or for concluding he was thenceforth held by Pilgrims against his will.
I am not only satisfied that there is no basis on the balance of probabilities for the Court to prefer Mr Scholes’ account but also that Mr Aliyu’s evidence where it conflicts is to be preferred over that given by Mr Scholes.
Some important aspects of Mr Scholes’ account of the events in the immediate aftermath of his kidnapping are inherently challenging of acceptance. I have already mentioned one such aspect: that Mr Scholes had not told anyone from DFAT about Tayo having his possessions in her custody. For the reasons I have given I am satisfied that I am entitled to find that he had told Ms Wilson of that fact. I now return more specifically to the events of 7 December 2017.
Mr Scholes’ evidence is that he and Mr Alaba were together at all times on the evening of 7 December 2017 (outside the Yusuf family home) at a social gathering. Mr Alaba could not have given directions to Mr Aliyu to explain how to get to where they were without Mr Scholes being aware of such a conversation: it had not happened.
However it is uncontentious that on 7 December 2017 Pilgrims’ convoy arrived late in the dark on the outskirts of Ilero. Mr Scholes does not dispute that without local assistance locating any individual house after nightfall in Ilero would have been impossible: Mr Scholes himself had never learned the street address of the Yusuf household. Mr Scholes’ evidence is that he assumed the Pilgrims team must have found the Yusuf household after contacting the local police and obtaining their assistance.
Mr Aliyu’s evidence is that when Pilgrims arrived at the outskirts of Ilero at night and needed to locate where Mr Scholes was staying he had rung Mr Alaba on Mr Alaba’s mobile. Mr Alaba had made arrangements to meet with the Pilgrims team and once they had met they had followed him to find their way to the house where Mr Alaba had said Mr Scholes was staying.
Mr Scholes did not cross-examine Mr Aliyu to put that in issue. Even assuming that his failure to do so was an error made by an unrepresented litigant which might be overlooked, the witnesses who were present at the Yusuf household who Mr Scholes had listed to give evidence did not make themselves available for that purpose. Mr Alaba was one of those witnesses who failed to testify.
Nonetheless, I reject Mr Dinelli’s submission that the Court should draw a Jones v Dunkel inference that Mr Alaba’s evidence would not have assisted Mr Scholes. The rule in Jones v Dunkel is that when there has been an unexplained failure by a party to call evidence, to call a witness or to tender documents, the Court may draw an inference that the uncalled evidence would not have assisted that party. The premise for the inference turns on the fact that a party has elected not to call a witness whose evidence could be expected to have been given if it were favourable to that party. That logic operates perfectly well assuming the party has in his or her hands the capacity to compel the attendance of a witness – however in this case Mr Dinelli has advanced no submission that Mr Scholes had power to subpoena Mr Alaba or to enforce such a subpoena: he and Mrs Yusuf and Tayo are resident in Nigeria. I have already indicated that Mr Scholes clung to the last that at least some of his intended witnesses would make themselves available.
Mr Alaba, Mrs Yusuf and Tayo cannot be interrogated as to their reasons for declining to give evidence but not every reasonable hypothesis requires the conclusion that their truthful evidence would not have assisted Mr Scholes. It is not implausible that one reason for their not wishing to give evidence might be that they did not want their giving evidence to be the cause of exacerbating the conflict that appears to have arisen within the Yusuf family after Mr Scholes had identified Tola’s role in bleeding him for money. Indeed had they given sworn evidence it is not impossible that they might have feared (reasonably or otherwise) that that evidence would be used as a basis for bringing proceedings against Tola either in Nigeria or Australia. In Nominal Defendant v Rooskov [2012] NSWCA 43 the Court emphasised that there is no requirement that an inference be drawn. It is simply available where the appropriate circumstances exist. In those that exist in this case I decline to draw a Jones v Dunkel inference.
However, for whatever reason their absence might be accounted for, their collective failure to give evidence leaves Mr Scholes’ account without corroboration.
I have accepted Ms Wilson’s evidence that Mr Scholes had been informed by her that

“Post’s” security team was on its way to Ilero to pick him up and transport him to Lagos.
I am satisfied that Mr Aliyu’s account as to how Pilgrims located the Yusuf household with Mr Alaba’s assistance is to be preferred as against Mr Scholes’s evidence that Mr Alaba was with him at all times and could not have done so.
Mr Scholes’ own evidence is that he was outside with members of the Yusuf household (and members of the local community) when the Pilgrim’s team arrived. That is not inconsistent with Mr Aliyu’s evidence that Mr Scholes appeared to be waiting for him.
In light of my accepting that Mr Alaba assisted Mr Aliyu to locate where Mr Scholes was staying in Ilero it is not open to the Court to prefer Mr Scholes’ account that that he was taken by surprise when the Pilgrims convoy of three vehicles had arrived to collect him.
I am further satisfied that it is implausible for the Court to not to prefer Mr Aliyu’s evidence that Mr Scholes did not communicate to him any objection to proceeding to Lagos in contrast to Mr Scholes’ evidence that he had told Mr Aliyu that he did not want to travel with him.
It will be recalled that Mr Scholes’ case is that not only did he tell Mr Aliyu that he did not want to go with Pilgrims but also that his fiancé and her mother were crying and the crowd was protesting against Mr Scholes being forced to leave with Pilgrims.
I reject that was the case.
I am satisfied that it is quite implausible that had Mr Scholes told Mr Aliyu that he had rejected Ms Wilson’s offer of consular assistance and did not want to go with him that Mr Aliyu would have taken it upon his own head to have ignored that objection and become party to forcing (or intimidating) Mr Scholes into compliance.
There is nothing in evidence to justify any inference that Mr Aliyu was at all personally invested in the outcome. Mr Lemmer had simply instructed him to undertake a task involving some potential danger for Pilgrims. Mr Aliyu understood that task to be, and described it in his evidence as being, a “rescue mission”. His mission as he had understood it was not to seize an unwilling foreign national from a protesting family.
Mr Scholes cross-examined Mr Aliyu (referring to him as Mr Mustafa) about how he would have responded if he had come to know he had withdrawn his consent. Their exchange was as follows:
What would he have – Mr Mustafa, what would you have done if Mr Scholes had said that he did not want to be with you and he wanted to return to the village?---Immediately, I would call my – immediately, I would call my boss to inform him of that because I’m not .....
Pardon? Could you repeat that last ---
HIS HONOUR:   His answer he would have immediately communicated with his boss?---My boss .....
Because that was not his mission.
I interpose that although it is not captured on the transcript the reference to “that” not being “his mission” are the words I heard Mr Aliyu speak at the time Mr Scholes interrupted him to ask him to repeat what he had said.
Mr Aliyu’s evidence as to what he would have done if he had discovered that Mr Scholes did not want or was refusing Pilgrims’ assistance has the ring of simple truth. Mr Aliyu was a trusted and experienced employee of Pilgrims but he was not its decision-maker. I have no reason to doubt his evidence that he would have called Mr Lemmer for instructions if his task had ever evolved in a way inconsistent with what he understood to be his mission.
Had Mr Aliyu called Mr Lemmer it is inconceivable there would not be communication between Mr Lemmer and the Australian High Commission about that unanticipated circumstance. It will be recalled that Mr Lemmer’s evidence is that he had been told that Mr Scholes had agreed to being collected from Ilero and transported to Lagos. Pilgrims was only the Commonwealth’s agent in that regard. It is implausible that had he been told Mr Scholes was refusing to travel with Mr Aliyu that Mr Lemmer would not have immediately reverted to the High Commission to inform it of that unanticipated development. There is nothing in the evidence to suggest that any such communication took place and there is nothing in the discovered e-mails between Pilgrims and the High Commission to suggest any such thing occurred. I am satisfied it did not occur because Mr Scholes never said any such thing.
Had I not been satisfied that Mr Scholes was ready and waiting to leave with Pilgrims and never indicated any contrary disposition the presence of armed men arriving at night might have required attention to be given to the possibility that he had been, notwithstanding their good intent, intimidated into yielding against his will. But that case is not this case.
To the contrary I am satisfied that, although doubtless in a high state of stress given the circumstances he had endured and the uncertainty of his future, Mr Scholes was waiting with the Yusuf family, ready to leave for Lagos as he had informed Ms Wilson that he would be, when Pilgrims arrived.
Moreover, if needs be said, I am satisfied that Mr Scholes’ recall of the conduct of those armed men is misleadingly inaccurate. Mr Scholes’ evidence-in-chief was that all of the Pilgrims team were armed. He recalled between 8 and 10 heavily armed men with AK-47 shotguns having moved towards himself and Mr Aliyu.
Mr Scholes did not cross examine any of the Commonwealth’s witnesses so as to put in issue that only the four MOPOL officers who had been assigned to protect the convoy were armed. I accept that evidence. I am satisfied no Pilgrims staff had carried weapons. Mr Aliyu also gave evidence, which I accept, that the MOPOL officers had never conducted themselves in any way as would have justified Mr Scholes believing they were threatening him.
However, Mr Scholes and Mr Aliyu are on common ground that Mr Scholes did ask him if his fiancé, Tayo, could travel with him. Mr Aliyu had not known whether that was permitted so he had called his boss, Mr Lemmer, for advice. His answer had been “no”.

I have no doubt that that Mr Scholes being told Tayo could not come with him would have triggered powerfully conflicting emotions in him. He was being presented with a ‘Sophie’s Choice’. He could be taken to safety only by leaving behind the woman he loved and who he intended to marry. He had just endured the trauma of being held captive for ransom for 8 days with her.
It can hardly be surprising that when later recalling those events Mr Scholes might come to believe, falsely but with certainty, that saving himself at the price of leaving his fiancé behind was not a decision he could have voluntarily made. It must have been something he was forced into. However whatever the reason might be I am not satisfied that Mr Scholes is a reliable historian of those events.
That Mr Scholes was deeply traumatised at the time in consequence of not only that event but also all that had happened to him as a victim of kidnapping is not question: Mr Aliyu gave uncontested evidence that Mr Scholes had remained highly stressed during the trip back to Lagos. His having to ask Mr Aliyu stop at the side of the road because he needed to vomit is simply an overt physical manifestation of what, I am prepared to accept, of the doubts, fears and uncertainties which must have been constantly playing on his mind.
I am therefore satisfied that, without doubting that Mr Scholes gave evidence of his honest recall, that I am entitled to prefer that given by Mr Aliyu.
Exactly how and when Mr Scholes came to have a false memory of the relevant events need not be determined. However I am satisfied that whatever the reason might be and whenever his false belief came to be held aspects of the evidence Mr Scholes gave regarding the events of 6–8 December 2017 immediately following his release by his kidnappers of what he was certain was the truth, was not.
Cruel though the dilemma Mr Scholes had been confronted with, I reject that his choice to leave Ilero without Tayo was relevantly compelled. He was not being restrained against his will when he entered the Pilgrims vehicle that was then waiting to take him back to Lagos.
I also reject Mr Scholes’ evidence that Tayo and Mrs Yusuf were crying and protesting his being taken from the family. In the absence of any evidence from them (they were both scheduled to give evidence but did not) I am nonetheless not satisfied I am entitled to draw a Jones v Dunkel inference that their evidence would not have assisted him.
However I accept Mr Aliyu’s evidence that despite Mr Scholes having been informed that Tayo could not come with him Mr Scholes nonetheless got into the car with him to go to Lagos. I am satisfied that was not because Mr Scholes was compelled to do so or had been intimidated by armed men to yield his will to. I am satisfied it was a choice Mr Scholes, no doubt with conflicting emotions, had voluntarily made.
I further reject that Mr Scholes had communicated that he had changed his mind later on the trip to Lagos.
Mr Scholes’ evidence is that after he and Mr Aliyu had overnighted at a local hotel because the convoy in which they were travelling was running out of fuel and the roads at night were dangerous, at some point in the morning the convoy stopped at a service station. He was left alone in the Pilgrims’ vehicle. Mr Scholes’ evidence is that after Mr Aliyu returned to the car he told Mr Aliyu that he had thought about stealing it and driving back to Ilero.
Mr Aliyu’s evidence (see above at [160]) is that he had no recall of Mr Scholes saying that.
However I accept that Mr Scholes did later recount to Ms Wilson that at one point in his trip to Lagos he had thought about stealing a Pilgrims vehicle and returning to Ilero. His having told that to Ms Wilson corroborates his account of that event: although it is corroborates only that he spoke those words, not that Mr Aliyu had heard or paid attention to them. I accept Mr Aliyu’s evidence that he has no recall of any such statement.
Ms Wilson’s evidence is that she had not regarded Mr Scholes as having made a serious remark. Her evidence in cross-examination was:
Do you recall something to that effect?---I remember some joviality around – around his state of mind, but I don’t remember anything specifically where he said he wanted to return to the village – and said – said in what I would have considered to be a serious fashion.
Ms Wilson therefore did not pass on what she took to be a jocular remark either to the High Commissioner or to Mr Taylor.
My acceptance that Mr Scholes did make such a statement, albeit unheard by Mr Aliyu, is immaterial to the outcome of this proceeding. The content of the words he spoke goes no higher than him telling Mr Aliyu, following his having been left alone in a Pilgrims vehicle while at the service station on the outskirts of Lagos on the morning of 8 December 2017 that he had considered stealing the car he was in and driving it to Ilero to be with the Yusuf family and his fiancé.
Assume, contrary to his evidence and my findings, that Mr Aliyu had heard Mr Scholes say those words they would not in any event have represented a withdrawal of his consent. What Mr Scholes claims to have said falls well short of his asserting to Mr Aliyu that he had changed his mind and had withdrawn his consent to remaining with the Pilgrims team as it travelled on to Lagos. All that Mr Scholes gives evidence of saying is to the effect that he had momentarily considered (but had not acted upon) what would have been self-evidently a foolish thing for him to have done. Even if I am not entitled to draw the inference that stealing a car from Pilgrims in Nigeria might have had serious consequences for him Mr Lemmer’s evidence in cross-examination made that clear.
Mr Scholes’ statement (assuming it was both made and heard by Mr Aliyu) might well have also suggested to Mr Aliyu that Mr Scholes was still troubled by the decision he had made to leave Ilero (as he may well have been) but there is no plausible way that such a remark can be understood as a definitive (or even hesitant) assertion on Mr Scholes’ part that that he had changed his mind and was withdrawing his consent to continuing with Pilgrims on their drive into Lagos.
If he had changed his mind there was nothing to stop Mr Scholes directly saying so. I reject that the words he gives evidence of having used conveyed that meaning. Mr Scholes’ mentioning having thought about stealing a car does not evidence that his consent to his ongoing transport to Lagos had been withdrawn.
Finally, I also reject that I should find that Mr Aliyu spoke the words Mr Scholes gave evidence of as I have recorded at [82] but again even if Mr Scholes’ evidence was to be accepted that which he gives evidence of being said by Mr Aliyu has no bearing on whether or not he had earlier consented or later withdrawn his consent. Mr Scholes gave no evidence that he had responded in any manner suggesting either of those conclusions.
Absence of corroboration
Out of an abundance of caution I reject that anything Mr Scholes said to Australian officials in the aftermath of his being brought to Lagos amounts to corroboration of his now clear memory of having been seized by Pilgrims against his will from Ilero and taken to Lagos. I accept that Mr Scholes did promptly raise with Mr Lehmann his distress regarding his having to leave his fiancé behind in Ilero. Mr Lehmann responded to him that it was DFAT’s policy to confine assistance to Australian nationals where others were citizens of the country in which they were in distress.
What Mr Scholes said to Mr Lehmann does not corroborate his account beyond the reality that he had been compelled to make a heart wrenching choice. As noted above at [250]–[251] Mr Scholes would be taken from where he had been told he was not safe only if he was prepared to leave behind the woman he loved, who he intended to marry and with whom he had just endured the trauma of being held captive for ransom for 8 days.
Mr Scholes’ complaint about his having been put in that position and his seeking Mr Lehmann’s assistance to obtain a visa for Tayo is consistent with that aspect of his account but it does not corroborate his evidence of having been restrained against his will in leaving Ilero.
It is conspicuous that Mr Scholes made no complaint of the kind he now advances to any Australian official until after he had returned to Australia. He made no claims of the kind he now advances whilst in Nigeria.
Mr Scholes gives evidence that he told the AFP welfare team who assisted him in Melbourne that he had been brought from Ilero to Lagos against his will but he had not done so previously, he did not identify when or in what circumstances that occurred, and he did not call those persons as witnesses. I place little store on that account.
The first time Mr Scholes appears to have articulated such a claim is in the letter he wrote to the Australian High Commission in South Africa on 13 December 2017 which was sent in the circumstances I have described above after his return to Australia. In that letter Mr Scholes articulated the basic premises of his present claim and intimated that if Tayo was granted a visa he would not take legal proceedings of the kind he ultimately pursued.
I reject that is plausible corroboration of his present evidence.
Threatening legal action unless a visa was to be granted to Tayo was ill-judged on Mr Scholes’ part but, consistently with my reasoning as to his honesty I reject his doing so counts against his credit as a witness of the truth.
I have earlier indicated that it could hardly be surprising that Mr Scholes might have come to believe, falsely but with certainty in retrospect, that he could only have made a self-protective decision to save himself at the price of leaving his fiancé behind if he had been forced to do so and deprived of choice. That may well have come to be his state of mind by that time.
However before I leave the question of Mr Scholes’ representations on Tayo’s behalf it is appropriate for the Court to observe that it confesses to having some scepticism that DFAT policy precluded the possibility of Pilgrims being tasked to rescue not only Mr Scholes but also his fiancé. Ms Dee who was called by the Commonwealth to provide evidence of DFAT’s policies did not speak to that subject.
Moreover the initial tasking of Pilgrims as was communicated to them by Mr Taylor by e-mail on 7 December 2107 refers to DFAT having advised Mr Lemmer:
Our Australian citizen and his Nigerian girlfriend have been released, and we are looking to getting them back to Lagos. They are currently in a town called Ilero, Oyo State, at the home of the Step Father of the Nigerian girlfriend. Can you provide transport to Lagos today, and can you also give us a rough estimate of the cost?
There is in evidence an e-mail sent by Mr King, Head of Kidnap Response and Special Reference Section in Canberra to the High Commission which refers to there being “a lot of senior executive interest in this case” and advising “we think it will remain so until he has left the country”
Mr Scholes did not cross-examine any of the Commonwealth’s DFAT witnesses on the premise that the change of Pilgrim’s tasking as had required him to choose between his own safety and leaving his fiancé behind was not the product of a rigid policy but rather the result of a hard headed decision that to permit him to bring Tayo with him to Lagos might stand in the way of quickly resolving the incident in a manner which would satisfy Canberra. Perhaps someone later anticipated that allowing him to bring Tayo with him to Lagos would have complicated his/their leaving Nigeria and returning to Australia.
As it is not an issue requiring resolution I make no findings as to why the position changed between 1:16pm on 7 December 2017 (when the rescue of both Mr Scholes and Ms Tayo Yusuf had been tasked to Pilgrims) and that which later prevailed. I observe simply that it is self-evident that an unexplained decision must have been made by someone with authority in that regard. That left Mr Scholes having to make a distressing choice.
Post arrival in Lagos until Mr Scholes was given his passport, money and credit cards back
In an abundance of caution I reject that anything Mr Lehmann said to Mr Scholes once he had arrived in Lagos can justify a finding that, independent of his earlier consent to have travelled to Lagos, he was falsely imprisoned in Lagos at the Sheraton until his possessions had been restored to him. I acknowledge that Mr Lehmann urged Mr Scholes not to leave the hotel where he was accommodated until Mr Taylor arrived, and he had conformed his behaviour to that request, but I reject that involved any requirement that he do so.
Findings
Mr Scholes fails to discharge his burden of proof in the case he has brought against the Commonwealth. To the contrary I am affirmatively satisfied that he consented, albeit almost certainly with conflicting emotions and highly traumatised, to his being collected by the security team (Pilgrims) that was tasked by the Commonwealth (DFAT) to bring him from Ilero to Lagos.
If I am wrong in primary findings
It is strictly unnecessary to record contingent findings but if I am wrong in my conclusion that Mr Scholes was not compelled against his will to travel with Pilgrims from Ilero to Lagos I would have concluded that his subsequent restraint was of a sufficient degree as to entitle him to make good a claim of false imprisonment up until the time his possessions were returned to him. I need not traverse the case law but it is uncontentious that a person may be falsely imprisoned yet there be an open window which would allow them to escape the room of their confinement if that window leads to a drop which might be lethal.
Once on route from Ilero (and in Lagos until Mr Taylor returned his possessions to him) Mr Scholes was without money, identification or means of self-protection. The Commonwealth’s own case is that his safety was at significant risk. I reject that the possibility that he might at any point have directed Mr Aliyu to let him out of the vehicle he was travelling in, had I not found he had consented to that, would serve in the circumstances of his extreme vulnerably as a plausible window for his escape.
CONCLUSION
I dismiss the Applicant’s case. For completeness I formally record the following conclusions the Court has reached in respect of the agreed issues that the parties submitted for trial.
Issue 1
At any time between the evening on 7 December 2017, when the Applicant was collected by the Respondent’s agents from Ilero, and the morning of 8 December 2017, when the Respondent’s agents delivered the Applicant to the Sheraton Hotel in Lagos, was the Applicant’s restrained against his will by the Respondent’s agents?
Answer: No
Issue 2
If yes to Issue (1), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
Answer: Unnecessary to answer
Issue 3
At any time between the morning of 8 December 2017, when the Applicant arrived at the Sheraton Hotel in Lagos, and when Mr Scholes boarded his flight to Australia at the Lagos international airport on 10 December 2017, was the Applicant restrained against his will by the Respondent’s agents?
Answer: No
Issue 4
If yes to Issue (3), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
Answer: Unnecessary to answer
Issue 5
If yes to any of the above, did the relevant conduct of the Respondent’s agents, in the circumstances, constitute the tort of false imprisonment with regard to the Applicant?
Answer: Unnecessary to answer
Issue 6
If yes to Issue (5), what is the measure of the damages or compensation for that tort to which the Applicant has proven an entitlement?
Answer: Does not arise.
COSTS
The ordinary consequence, as Gleeson CJ, Gummow, Hayne and Crennan JJ explained in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 53 at [25]–[26] is that while there is “no absolute rule” generally the discretion to award costs is to be exercised in favour of a successful party. However, it is trite that ultimately the discretion to award costs is not fettered.
I note that on day 3 of the trial an unfortunate event occurred. It involved significant and cruel mockery of Mr Scholes as he was attempting to cross-examine Mr Lemmer. As the transcript of the following day reveals I noted that I did not accept Mr Dinelli’s submission that the conduct in question was not to be attributed to his client.
I have chosen to be oblique in these remarks because to refer in detail to the those circumstances without the necessity for doing so may well not only expose Mr Scholes to the hurt reliving that event but also cause the person who was inadvertently responsible: a person who has unconditionally apologised to Mr Scholes and the Court in terms which I accept are genuine, to be exposed to unnecessary public humiliation.
I have also earlier referred at [28]–[74] to Mr Dinelli’s extensive cross-examination of Mr Scholes regarding the circumstances in which he had travelled to Nigeria and formed a relationship with his fiancé Ms Tayo Yusuf. I have recorded my conclusion that the matters counsel put to Mr Scholes in those regards could not serve as a sound foundation for the Commonwealth’s submission that Mr Scholes’ conduct warranted an adverse conclusion to be drawn as to his general credit.
I have not heard the parties as to costs but subject to being persuaded to the contrary, the Court is entitled to be satisfied (a) that Mr Scholes was mocked during the proceeding and (b) that a not significant aspect of the trial involved an extended attack on Mr Scholes’ character by the Commonwealth absent an available forensic justification.
I take it to be uncontentious that the Court’s discretion as to costs may be influenced by a party’s conduct at trial. Those two circumstances have led me conditionally to conclude that there are special circumstances which justify the Court in the exercise of its discretion, not requiring Mr Scholes to pay for the costs of the trial notwithstanding his forensic failure. I exclude from that exception the costs that the Commonwealth incurred, as Mr Scholes acknowledged and thanked it for, in providing his scheduled Nigerian witnesses the opportunity to give their evidence remotely notwithstanding that opportunity was not taken advantage of.
Subject to that exclusion I will order that Mr Scholes as the losing party to pay the Commonwealth’s costs up to but not including trial held on 5–8 October as may be agreed or in default of agreement as may be taxed unless either party advises, no later than 4:00pm on 14 January 2022, that they would seek an alternative order.
If either party seeks an alternative order both parties shall have leave to file short written submissions limited to no more than 3 pages as to the orders for costs they submit are appropriate to be made by no later than 21 January 2022. The question so arising will be determined on the papers.

I certify that the preceding two hundred and ninety-seven (297) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.
Associate:
Dated: 17 December 2021

File number(s):	VID 480 of 2019
Judgment of:	KERR J
Date of judgment:	17 December 2021
Catchwords:	TORTS – tort of false imprisonment – whether consular assistance provided to the Applicant for his ‘rescue’ in the aftermath of his having been kidnapped in Nigeria was imposed on him contrary to his consent – application dismissed EVIDENCE – Applicant’s witnesses not giving evidence – whether the Court is entitled to draw a Jones v Dunkel inference COSTS – whether manner of conduct of Respondent’s case may warrant limited departure from ordinary rule that costs follow event
Legislation:	Evidence Act 1995 (Cth) Oaths and Affirmations Act 2018 (Vic)
Cases cited:	Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 53 Jones v Dunkel [1959] 101 CLR 298 Nominal Defendant v Rooskov [2012] NSWCA 43
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	297
Date of hearing:	5-8 October 2021
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr A Dinelli with Ms S Kearney
Solicitor for the Respondent:	Maddocks Lawyers

ORDER MADE BY:	KERR J
DATE OF ORDER:	17 DECEMBER 2021

INTRODUCTION	[1]
THE TRIAL: PROCEDURAL ADJUSTMENTS REQUIRED BY COVID-19	[13]
MR SCHOLES’ EVIDENCE	[20]
Evidence-in-Chief	[20]
Mr Scholes’ limited concession	[24]
Cross-examination	[28]
*Mr Scholes’ history with Tola and Tayo Yusuf and the context of his travel to and conduct in Nigeria*	[28]
*Other evidence given by Mr Scholes in cross-examination*	[62]
*The balance of Mr Scholes’ case: the absence of his other scheduled witnesses*	[99]
Documentary tenders	[108]
THE COMMONWEALTH’S EVIDENCE	[110]
Cleo Wilson	[110]
Paul John Lehmann	[123]
Brian Mitchell Taylor	[133]
Jennifer Ann Dee	[146]
Mustapha Oshoke Aliyu	[150]
Daniel Lemmer	[163]
CONSIDERATION	[169]
The credit of witnesses	[169]
The Commonwealth’s submission regarding the “bizarre” nature of Mr Scholes’ evidence undermining his general credit	[175]
The reality of Mr Scholes’ consent	[194]
Did Mr Scholes tell Ms Wilson he would accept consular assistance?	[200]
Did Mr Scholes nonetheless refuse consent to his collection by Pilgrims in Ilero?	[214]
Absence of corroboration	[271]
Post arrival in Lagos until Mr Scholes was given his passport, money and credit cards back	[285]
Findings	[286]
If I am wrong in primary findings	[287]
CONCLUSION	[289]
COSTS	[290]