Skrijel v Mengler

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
V
JOHN CARL MENGLER & ORS	Defendants

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATES OF HEARING:	3, 4, 5, 7 March, 3, 7, 8, 9, 10, 11, 14, 15, 16, 17, 23, 24, 28, 29, 30 April, 1, 2, 5, 6, 7, 12, 13, 14, 15, 16 May 2003
DATE OF JUDGMENT:	25 July 2003
CASE MAY BE CITED AS:	Skrijel v Mengler
MEDIUM NEUTRAL CITATION:	[2003] VSC 270

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Malicious prosecution - Alleged fabrication of evidence by National Crime Authority Chief Investigator and a Victoria Police sergeant fingerprints expert – Whether actively instrumental in setting criminal proceedings in motion – Whether acting with malice – Whether acting with reasonable and probable cause – Favourable termination – Whether nolle prosequi a favourable termination of criminal proceedings - Vicarious liability - Whether Commonwealth and State Governments liable for actions or omissions of police officers in their service.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.E. Berthelson (Appeared as Lay Advocate)	J N Zigouras & Co.
For the Firstnamed Plaintiff	Mr M.A. Tovey QC with Mr P. J. Marzella	Hardham Dalton & Sunberg
For the Secondnamed Defendant	Mr B.E. Walters SC with Mr K.D. Mueller	Australian Government Solicitor
For the Thirdnamed Defendant	Mr J.G. Santamaria QC with Mr M.L. Gindberg	Victorian Government Solicitor
For the Fourthnamed Defendant	Mr R.I. Gipp	Ebsworth & Ebsworth

Table of Contents

THE PLAINTIFF’S OPENING......................................................................................................................................................... 2

THE PLEADINGS............................................................................................................................................................................... 20

THE EVIDENCE FOR THE PLAINTIFF................................................................................................................................... 24

(i)     The Plaintiff....................................................................................................................................................................... 24
(ii)     David Berthelsen............................................................................................................................................................... 35
(ii)     Keith Murdoch................................................................................................................................................................... 40
(iii)    William Frederick Toomer.............................................................................................................................................. 44
(iv)     Wally Edwards.................................................................................................................................................................. 45
(v)    Dr Khan.............................................................................................................................................................................. 45
(v)    Alan Franklyn Pringle..................................................................................................................................................... 46

THE WITNESSES FOR THE FIRST DEFENDANT............................................................................................................... 48

(i)     John Carl Mengler............................................................................................................................................................ 48
(ii)     Henry Gregory Huggins.................................................................................................................................................. 55
(iii)    Ronald William Iddles...................................................................................................................................................... 58
(iv)     Mark Richard Carmady................................................................................................................................................... 63
(v)    Sinclair Imrie Miller......................................................................................................................................................... 66

WITNESSES FOR THE SECOND DEFENDANT.................................................................................................................... 66

WITNESSES FOR THE THIRD DEFENDANT........................................................................................................................ 66

(i)     Sergeant Cook................................................................................................................................................................... 66
(ii)     Trevor Roddick.................................................................................................................................................................. 72
(iii)    Bryan James Norton......................................................................................................................................................... 74
(iv)     Melissa Ann Tan................................................................................................................................................................ 76
(v)    Gregory Hugh Salter........................................................................................................................................................ 77

WITNESSES FOR THE FOURTH DEFENDANT.................................................................................................................... 77

FINDINGS OF FACT......................................................................................................................................................................... 77

THE LAW.............................................................................................................................................................................................. 91

(i)     Actively instrumental........................................................................................................................................................ 92
(ii)     Malice................................................................................................................................................................................. 95
(iii)    Reasonable and probable cause..................................................................................................................................... 97
(iv)     Favourable termination................................................................................................................................................. 105

LIMITATION OF ACTIONS........................................................................................................................................................ 109

VICARIOUS LIABILITY............................................................................................................................................................... 110

CONSPIRACY................................................................................................................................................................................... 111

CONCLUSION................................................................................................................................................................................... 115

HIS HONOUR:

Mehmed Skrijel came to this country from Yugoslavia in 1961. He was 20 years of age. He arrived without any money and he could not speak any English. But in time he found work as a house painter, he learned to speak English, he established his own house painting business at Digby in rural Victoria and he married and he had children. Thus by the early 1970’s he had achieved a measure of success. Things changed for him for the worse after he left his house painting business and in November 1975 moved with his family to Southend in South Australia to set up as a professional fisherman.

According to allegations which Mr Skrijel was later to make to police, in or about 1978 he employed a deck hand named Graham Watson and one day in 1978 as he fished from his boat with Watson he observed a container attached to a buoy apparently drop from a passing Japanese ship. A short time later, he said, he observed Watson’s brother who was in another boat pick up the container from the sea. He said that he asked Watson what his brother was doing and Watson’s immediate response was that it was nothing to do with him. But later, he said, Watson told him that it was heroin and that if he would pick up the next drop of heroin he would be paid $10,000 for his work. According to Mr Skrijel he refused the offer, sacked Watson and reported the matter to the police. But instead of getting police action against the drug traffickers of the kind that he had expected, he says that he was visited with retribution by police and other persons involved with the organised drug trade, extending over many years.

According to investigations subsequently carried out by the National Crime Authority (“NCA”), it is unlikely that there was a drugs drop of the kind which Mr Skrijel reported, and most of the so called campaign of retribution either did not occur or was due to factors unconnected with the drug trade. Reputedly, Mr Skrijel was a man of abrasive personality who rubbed the wrong way a number of the Southend community and later incorrectly characterised their reactions as inspired by drug trade retribution. It was also said by the NCA that evidence had been uncovered which showed that Mr Skrijel was himself involved in the cultivation of cannabis, and it was concluded that Mr Skrijel may have complained of heroin trafficking in order to deflect attention from his own illicit activities. On the basis of the evidence said so to have been discovered, Mr Skrijel was charged and in 1987 was convicted of offences of cultivating, possessing and trafficking in cannabis, as well as with the possession of explosives and possession of an unlicensed firearm.

This proceeding comes about because the convictions of cultivating, possessing and trafficking in cannabis and possession of explosives were set aside on appeal to the Court of Criminal Appeal in 1988. Mr Skrijel claims that two of the men involved in the NCA investigation were guilty of malicious prosecution. Those men are some time Chief Superintendent and later Deputy Commissioner John Carl Mengler, now retired but at relevant times the NCA Chief Investigator, and Sergeant Garry Cook, at relevant times and still a fingerprint expert and serving member of the Victoria Police Force. Mr Skrijel also contends that the Commonwealth of Australia is vicariously liable for the actions of Mr Mengler and that the State of Victoria is vicariously liable for the actions of Sergeant Cook.

The substance of Mr Skrijel’s claim is that Mr Mengler procured the planting of false evidence at a cannabis plantation in the Weecurra State Forrest and in Mr Skrijel’s home at Digby in rural Victoria some 16km from the plantation, and procured Sergeant Cook to cooperate in giving false testimony about fingerprints on items said to have been located by police at Mr Skrijel’s home at Digby. It is contended that the false evidence and false fingerprint evidence were instrumental in the prosecution and wrongful conviction of Mr Skrijel for the offences with which he was charged.

For the reasons which follow, I consider that those allegations are unfounded.

The Plaintiff’s Opening

The trial of this action took 29 days to complete. For the first 14 days of the trial Mr Skrijel appeared unrepresented but with the assistance of Mr David Berthelsen, who is a retired Commonwealth public servant with qualifications in engineering and accounting and who acted as Mr Skrijel’s McKenzie friend[1]. On 23 April 2001, it was said that Mr Skrijel had become so emotionally taxed by the conduct of the trial that it would be dangerous to his health for him to continue to represent himself. At that point Mr Berthelsen assumed the role of lay advocate and he acted as such for the remainder of the trial on the instructions of Mr Skrijel’s solicitors.
[1]Mackenzie v Mackenzie [1971] P 33 at p.41

Mr Skrijel opened the trial with a very long statement which had been written for him by Mr Berthelsen. In the course of that exercise he also tendered as evidence a large number of the documents which he had decided with Mr Berthelsen’s assistance would be of relevance to his case. He did not, however, give evidence on his own behalf. During the first week of his opening he said that he would. In his own words: “When I get into the witness box I’m going to tell the truth, regardless (of) whom it may hurt.” But that changed when the time drew near to pledge his oath to his allegations. There was no more talk then about what he was going to say. From then on his contention was that all of his case was to be found in the documents and that it was unnecessary for him to give any evidence about them.

The opening started with reference to what Mr Skrijel said was the drugs drop that he observed in 1978. The evidence was later to show that he had given different versions of that event to different audiences at different times. But the version which he gave me was the one which is mentioned above.

Mr Skrijel said that soon after he reported the matter several of the police in his district whom he had known on a social basis for the previous two to three years refused to have anything further to do with him, that his boat moorings were cut continuously and his boat was sabotaged by the cutting of the steering cables, that his crayfish were stolen, that rocks and bottles were thrown onto the roof of his house, that he was shot at from a passing car, that his wife and children were assaulted, that his daughter was subjected to an attempted rape, that he and other members of his family were assaulted at a football match at the Dartmoor football ground, that his crayfish pots were cut loose and lost or stolen, that his boat was burned to the waterline and later that his house was set alight. He claimed that police refused to do anything about any of those things, even the boat fire, and even though a coronial inquiry determined that the boat had been set alight by persons unknown.

Nothing daunted Mr Skrijel said that after his boat was destroyed by fire he returned to Melbourne to Elwood where he built another boat and tried to see different police and both federal and state politicians to assist him against the harassment to which he and his family were being subjected. But he said that even in Melbourne there was no end to the harassment. His cars were damaged in their yard and his family were beaten inside their own home.

Despite those difficulties, Mr Skrijel said, he completed the new boat and he returned to Southend and he continued to fish. But he said he also continued to be subjected to harassment and abuse. He instanced occasions on which persons unknown had tried to cause him to be killed by interfering with navigation lights as he was returning through the channel in his boat from a trip near to Sale (even though that is hundreds of miles from Southend) and he spoke of what he described as primary and secondary boycotts of his business resulting in the refusal by local companies to purchase his catch or to supply him with diesel fuel or bait. He said that he sought legal advice from a solicitor in Melbourne and that the solicitor retained a private investigator who obtained taped records of interview of persons that proved the existence of the boycotts. As I understood what Mr Skrijel said, the tapes also proved the existence of the drug ring and police involvement in it. But the tapes were later taken from the private investigator by NCA investigator Sergeant Iddles, and they were never returned.

Mr Skrijel told me that in an attempt to overcome the difficulties which he faced during the second year of fishing operations he endeavoured to work between 20 and 22 hours per day, starting fishing at midnight, coming back to shore at 6.00 to 7.00 am and then driving 180 miles to Portland in order to sell his crayfish. But he said that after three months of that sort of activity his body could not take it any longer and that he suffered a nervous breakdown which put him into hospital for several days. Hence he leased his boat to another operator for the remainder of that year.

In the next year, Mr Skrijel said, he went back again to fishing at Southend and again he met with the same sorts of primary and secondary boycotts as well as theft and interference with his crayfish pots and physical attacks upon and intimidation of his family. But he said that the police still refused to help him until political pressure was brought to bear.

Finally, the police were motivated to do something about the theft of his crayfish pots and they charged a person that they alleged to be responsible. But Mr Skrijel said that despite those developments, by 1984 the situation had become so intolerable for him and his family he was forced to abandon the business. Then, to make matters worse, he said, in May 1985 his nearly completed house at Southend was set alight shortly before he was to give evidence against the person charged with the theft of his crayfish pots. He moved back to Digby to find work and his family returned to Melbourne.

Mr Skrijel said that while he was at Digby he was told by his ex brother in law, who was a policeman, that someone would be coming to shoot him and that one night soon after that, as he tended one of the trees in his garden, a car did pass by from which the occupants yelled abuse and then later returned and fired on him with a shot gun. He said that the man who fired on him was the son of an inspector of police and that he had several other relatives who were members of the police force. He also alleged that nothing was ever done about the attack because of the identity of the attacker and because of Mr Skrijel’s stance against drugs and the police that were involved

Mr Skrijel said that on another occasion shortly before coming to Melbourne his twelve year old daughter was the victim of an attempted rape and that although the culprit was apprehended and charged, he was fined only $100 for being illegally on premises and $100 for discharging the firearm he had used to threaten Mr Skrijel’s daughter, and that he did not even have his shooter’s licence cancelled. Mr Skrijel considered that the leniency of the penalty imposed was the result of police influence to silence his protests against drug trafficking and corruption.

Mr Skrijel told me that he wrote in desperation to what he described as all the politicians, including the then Premier of South Australia, Mr Dunstan, various members of the Victorian Parliament, the then Prime Minister, Mr Fraser, whose house Mr Skrijel said he had painted when he had worked as a painter, and later to Mr Hawke after he assumed office as Prime Minister, as well as to the Trade Practices Commission in South Australia. But, according to Mr Skrijel, he got no assistance from any of them and indeed, he said, the more that he complained ”the harder they hit me”. He claimed that he was told by a Trade Practices Commission officer that he had Mick Young and Nick Bolkus battling against him.

Mr Skrijel said therefore that he finally took his complaints to the Costigan Royal Commission, which he believed to have been set up by the Commonwealth Government to inquire into the illegal drug trade in this country, and on 26 March 1984 he was interviewed by Mr John Buxton, a solicitor working for the Commission who he said took an interest in what he had to say. But the Commission was by that stage in the process of winding down its activities and, consequently, Mr Skrijel’s complaints became just one of forty two matters referred by the Commission to the NCA (which at that point was in process of setting up).

Mr Skrijel said that in November 1984 he set out to make sure that his complaints got the priority that he considered they deserved. To that end he distributed to all federal politicians in Australia a twelve page pamphlet entitled “ Better to die a man than to live as a slave”. It told Mr Skrijel’s story in sensational terms and it seems to have had the effect that he desired. On 28 November 1984 the NCA resolved to proceed with the investigation of Mr Skrijel’s allegations as “one of two major references which could be handled at any one time” by the NCA.

Mr Skrijel said that on that very day he and his wife were interviewed in Sydney by Sergeant John Milner and Sergeant Ian Rogers of the NCA, and immediately following the interview he had high hopes that appropriate action was finally to be taken against the illicit drug trade which for so long had caused him harm. But once more his hopes were to be dashed. According to him, the investigation conducted by Milner and Rogers was superficial and biased and, as he saw it, its object was to discredit his allegations against police rather than to ascertain the truth about his complaints. Indeed according to Mr Skrijel, Sergeant Rogers had drafted a report damning Mr Skrijel’s allegations even before Mr Skrijel was dispatched to obtain statutory declarations to establish the truth of aspects of the story which Sergeant Rogers later castigated as lies. Mr Skrijel said that this proved that the investigation was a sham.

But Mr Skrijel said that he was not to be silenced. He proclaimed in vociferous terms that the investigation was a cover up for people in high places who were involved in the illegal importation of drugs and he wrote as much to many politicians and in pamphlets which he took to handing out in the streets of Melbourne. That resulted, he said, in a recommendation by Mr Buxton on 21 January 1985 that the NCA implement a covert investigation by a team of personnel with drug surveillance experience and that discussions about the manner in which to proceed with the investigation be held with Chief Superintendent Mengler when he arrived to take up his appointment as NCA chief investigator.

Mr Skrijel said that during the May school holidays in 1985 he went into the Weecurra State Forest with two companions, Sabit Jeka, who he said was a person that he had met at a wedding in Melbourne, and a relative whom he did not name, to shoot for kangaroos. He said that as they were returning to their vehicle they came to an intersection of two tracks at which they found two sheets of corrugated iron and a motorcyclist’s helmet which they had not seen there when they had passed by before. He said that they picked up the iron and the helmet and were continuing on towards their vehicle when a local farmer, William Lane, came along in his vehicle and offered them a ride back to theirs. He said that a few weeks later he was visited at his Digby home by Assistant Commissioner Kel Glare and Inspector Peter Ryan of the Victoria Police Bureau of Internal Affairs (B11). They had come to talk to him about the prosecution of persons for the assault on him which he alleged to have occurred at the Dartmoor football ground some years before. According to Mr Skrijel, Mr Glare and Mr Ryan asked him what he had been doing in the forest and he said that he told them and showed them how he had used the two sheets of iron as cladding for his carport. Thereafter he heard no more about it. But he told me that he now thinks that the questions which he was asked show that Mr Mengler’s plan to frame him over his involvement in the growing of marijuana had been hatched as early as May 1985.

Mr Skrijel said that the next thing which he heard of the NCA’s activities was on 13 June 1985 when Sergeant Ronald William Iddles, who was also on secondment from the Victoria Police to the NCA, and Detective Collins came to interview him at his Digby home about his allegations. He said that Sergeant Iddles asked him questions and he answered every question. But he said that he has since learned that Sergeant Iddles was not investigating anything of the allegations. According to Mr Skrijel, Sergeant Iddles was instead “going around with… a cow bell on his neck… telling everybody that’s what he was doing and he’s supposedly investigating covert drug importation.” Mr Skrijel perceived that Sergeant Iddles' object was to discredit him and that is why he was going about so openly proclaiming that he was inquiring into Mr Skrijel’s allegations.

Mr Skrijel then referred me to a Minute from Sergeant Iddles to Mr Mengler dated 21 June 1985[2] in which Sergeant Iddles recorded among other things that:

“Since 1978 Mehmed Skrijel has been making complaints and allegations against members of the Victoria Police Force and the South Australian Police Force”… and that ”During the course of (our) interview he told us that if he could not see Justice being done within three months he will take the law into his own hands. He further stated the first Policeman to enter his property would be shot.”

The Minute concluded with a recommendation to Mr Mengler that copies of the Minute should be sent to Vicpol and Southpol Criminal Records Section[3] and that consideration should be given to having Mr Skrijel’s shooters licence revoked. Mr Mengler did notify Vicpol and Southpol as recommended but, for reasons which do not appear, Mr Skrijel’s shooter’s licence was not revoked.

[2]Exhibit P86

[3]Exhibits P88 and P89

Mr Skrijel told me that he never made any threats and that the Minute and later action of Mr Mengler in advising Vicpol and Southpol of its contents was “deliberate action to blacken (Mr Skrijel’s) name to every single police force in the country”. As Mr Skrijel saw things, the Minute and Mr Mengler’s communications to the two police forces were “malicious lies being spread by Mr Mengler just two weeks after Operation Southend began” and the fact that the Minute of 21 June 1985 was not signed by Sergeant Iddles in his hand “suggests that Mr Mengler might have been the actual author of the unsigned minute”.

Early in his opening Mr Skrijel said that because he found Sergeant Iddles to be unsatisfactory he tried to see Mr Mengler, but that Mr Mengler was just as bad. In his own words:

“I found out that Mr Iddles was not doing his job. I tried to see Mr Mengler, they were just as bad, both actually.”

Then, he said, he came to Melbourne and spoke to Mr Kel Glare and Mr Glare said that he would help. According to that version of events, when Mr Glare and Mr Ryan travelled to Digby in May 1985 and after interviewing several people Mr Glare said to Mr Skrijel:
“Well you’re correct, what you were saying is the truth, those people will be charged.”

But at another stage in the opening Mr Skrijel put the matter rather differently. In that version of events, Mr Skrijel did not complain to Mr Glare or Mr Ryan that he was dissatisfied with Mr Mengler, and Mr Glare and Mr Ryan did not say to Mr Skrijel that he was right to be dissatisfied. Mr Glare and Mr Ryan instead visited Mr Skrijel at his Digby home in June (not May) 1985 to talk only about the prosecution of persons for the assault upon Mr Skrijel at the Dartmoor football ground, and at the conclusion of their visit asked him the questions about what he had been doing in the forest when sighted there with two companions and sheets of iron. According to Mr Skrijel:

“The visits from Assistant Commissioner Glare and Inspector Ryan could suggest that I was a suspect for cultivation even before Sergeant Iddles was given his brief by Mengler.”

Either way, however, Mr Skrijel was not for long happy with the way things went with the investigation. In his words:

“… dealing with Mr Mengler and his investigators over the next five months left no doubt that operation Southend was a sham” and thus “I fought back with the only weapon I know to be effective… a pamphlet that attempted to expose the corruption in the NCA”…(by)… “explaining to people what National Crime Authority stand for naming the investigators previous, naming the current investigators of Mr Mengler, Iddles and Collins”.

Early in his opening Mr Skrijel said that he gave the first copy of the pamphlet to Mr Mengler personally, in August 1985 in Mr Mengler’s office in Queen Street, Melbourne, and that Mr Mengler responded with the words:

“Mick, you’re working for my head, I’m going to bloody well get yours before you get mine.”

Later in the opening Mr Skrijel said that he delivered the pamphlet to Mr Mengler on 12 November 1985 (although it was apparent that he meant to say 12 September 1985) and that he knew the date because of information which he had obtained under FOI. In Mr Skrijel’s words:

“I handed the first pamphlet to Mr Mengler personally on 12 November 1985. I know the date because the pamphlet was fax (sic) from Melbourne to Sydney and was later released to me under FOI provisions with a faxed time stamp on the pamphlet.”

In this latter version of events there was no mention of Mr Mengler having threatened to get Mr Skrijel’s head before Mr Skrijel got his, although Mr Skrijel did go on to say that over the following month (which is to say, until about the middle of October 1985) he distributed approximately 20,000 of the pamphlets from positions in front of the NCA offices in Queen Street and the County Court at the corner of William and Lonsdale Streets.

Mr Skrijel turned next to a report of 23 October 1985[4] which was submitted by Sergeant Iddles to Mr Mengler at the conclusion of Sergeant Iddles’ investigation into Mr Skrijel’s allegations of drug trafficking, harassment and corruption. It showed among other things that by 2 October 1985 Sergeant Iddles had interviewed almost 70 people as part of the investigation but, according to Mr Skrijel, the brief period of time in which such a large number of interviews had been conducted made it obvious that Sergeant Iddles had proceeded with a degree of haste and fanfare calculated to dissuade persons coming forward to corroborate Mr Skrijel’s allegations.
[4]Exhibit P27

Mr Skrijel came then to the final stage of his opening, of which much appeared to be based upon the transcript of evidence given during Mr Skrijel’s trial in the County Court in 1987. According to that transcript, on 7 October 1985 Sergeant Iddles spoke by telephone to Mr Mengler, told him that he was going to see a local farmer, named William Lane, about a report which Lane had put into the local police of having sighted Mr Skrijel in the Weecurra State Forest in May 1985, and after a conversation with Lane, Sergeant Iddles and three other police officers had gone with Lane to the area in the forest where Lane had sighted Mr Skrijel with the two companions and sheets of iron. After walking some distance along a nearby creek, they found a cleared area and a plantation made up of a number of used industrial paint drums sunk into the ground and containing a total of 124 young marijuana plants, a sort of table created roughly out of timber and corrugated iron and seedlings and manure and the like. On locating the plantation Sergeant Iddles spoke by telephone to Mr Mengler and with his concurrence made arrangements to set up and maintain surveillance on the plantation. Mr Mengler obtained assistance from the Victoria Police Special Duties Squad and officers of that squad travelled from Melbourne down to the forest to help man the surveillance. On 8 October 1985 one of those officers, Sergeant Carmady obtained from a Melbourne Magistrate, Mr Musgrave, two warrants to search Mr Skrijel’s Digby home,[5] one for paint tins of the type found at the plantation, and the other for cannabis, and ultimately after surveillance on the plantation had been maintained without result for about a week the warrants were executed on 15 October 1985.
[5]Exhibit P17

Mr Skrijel said that it is obvious that the warrants were not justified. In his contention, there was nothing to connect him with the plantation and nothing sufficient to connect him with industrial paint tins. As he put it:

“The information given to Mr Musgrave on oath that persuaded him that there was reasonable ground for believing that a quantity of cannabis would be found on my …premises was never revealed, possibly because Carmady knew it would be brought on to my premises by member (sic) of his special duties squad, all of whom were hand-picked by Mr Mengler, or anybody else instructed by him to bring it.”

Mr Skrijel then said that the NCA had tricked him into going to Digby on 14 October 1985 to provide the missing connection. In his words:

“While I was delivering pamphlets against National Crime Authority here, they had me under surveillance, that’s not disputed. I was then tricked into going to Digby. I was rung and I was told that the grass around my Digby property was getting too long and that I have to come down and cut the grass. Supposedly the call came from the Shire of Portland. When I went down there, I see the grass was not long. That’s when the surveillance was pulled out. That’s when the surveillance – Mr Mengler called the surveillance off.” (My emphasis.)

And again a little later in the opening:
“To me that is quite clear that they know I would not be there, that’s why they pulled the surveillance up and arrested me next day. Why did they not wait – You Honour, me walking next to the bank, it is not a crime. Me going in the bank with a gun and robbing it, it’s a crime. Me walking with a corrugated sheet of iron two kilometres away from that is not a crime, but me going to the plantation is a crime.”

But later still in the opening Mr Skrijel appeared to abandon the suggestion that the grass was not in need of cutting, and therefore perhaps also the contention that it was not the Shire that had called to ask him to cut it, and went on to assert that NCA had tapped his phone at Digby and it was by reason of listening to his conversations with his wife that they determined when to execute the warrants. Thus, according to that version of events:

“… I have bad back, I have a three discs (sic) worn out and I cut the grass, six acres by push mower. I was crippled that night, I could not move, I could not hardly walk; I crawl. I rang my wife up and said ‘I’m coming home early in the morning because my back has had it.’ They were listening to the conversation, they were there. That’s why I was raided, because they knew I was not going to the plantation and that’s why I was raided.”… (My emphasis.)

Yet another version, as I understood it, was that police had listened through the key hole of Mr Skrijel’s house during the evening of 14 October 1985 at least until he had chased them away with a gun. Thus:

“… As I lie on the floor - lie usually on the hard floor to straighten my back I hear a commotion outside. Your Honour got to remember I lived under the constant death threat. I went outside two or three times, that was - noise is running away. Finally I went outside with a gun in my hand, again they were running away. I stay outside nearly all night.”

He continued a little later:

“… it is clear before any evidence or any suggestion was found, except on the two drug importers from Southend accusing me of growing marijuana, actually they accuse me of growing marijuana in my backyard, and the two sheets of corrugated iron that we found in the bush several months ago National Crime Authority has made its mind up that I was the boy to look for. They knew they were going to find the paint tins in my shed, they knew they were going to find marijuana – they never found the paint tins – they knew they were going to find marijuana, they knew the plantation was mine, all on the words of two drug importers from South Australia and two sheets of corrugated iron that I found in the bush and I took home”.

The reference to the “two drug importers from South Australia” is a reference to Barry Trembath of Southend and Graham Watson[6] of Mt Gambier who had each given signed statements to Sergeant Iddles that Mr Skrijel had asked them to grow marijuana for him. Mr Skrijel described them as drug importers because he alleged that they were part of the heroin importation group upon which he had stumbled in 1978 when he saw the container dropped into the sea and picked up by the other Graham Watson.
[6]A relative of the Graham Watson who had been a crewman on Mr Skrijel’s boat.

Mr Skrijel said that on the morning of 15 October 1985 he was raided by a large number of police and that they then proceeded to plant at his premises the evidence upon which he was later convicted. As a consequence, he said, within no more than two minutes of beginning to search the police claimed that they had found a cardboard box of marijuana on the floor of the shed behind the house and a sawn off Cooey rifle on the bench in the garage. In Mr Skrijel’s words:

“Early in the morning I went inside and I had made a cup of coffee, and I could not sit in the chair, I went outside and sat on the ground, and I had a spoon and I sat next to the little cherry tree and I had a spoon, and I'm digging the ground, just- well, the police come from everywhere.
‘We have search warrant’, I say, ‘You've got nothing.' My words were, ‘You don't need a search warrant, there's nothing to find here, you can search everything.’ Within maybe two minutes they said they found a box of marijuana. And the same time they found a - they reckon a sawn off gun on the bench. They then took me - they would not let me take the painkiller for quite sometime. They would not allow me to ring up my wife. Finally after about 15 or 20 minutes they allow me - I couldn't stand, but I don't know, I hope nobody gets it, but my back I get a bad sciatica pain in both legs, and I can't stand up.”

That may be contrasted with a different version of the story which was published by Mr Skrijel and Mr Berthelsen in a document called the “Scales of Justice” (about which, more later). In that version Mr Skrijel alleged that when Sergeant Carmady arrived Mr Skrijel said to him:

“You're not going to find any drugs here”,

and Sergeant Carmady, who was said to have a box of marijuana with him, responded:
“Don't worry, we have brought our own.”

In the “Scales of Justice” version of events, there were 37 police involved in the raid and all of them were armed. Yet in another version which Mr Skrijel gave to me in his opening some days after the first version set out above, Mr Skrijel said that only one of the police was armed and that went to show that they did not really believe that he was a danger:

“MR SKRIJEL: There it is. You see the police there are not wearing any flak jackets or having guns in their hands when the person who is deranged, who is threatening to kill the police comes in. You see Mr Mengler is in a short-sleeved shirt so there's no - - -
HIS HONOUR: The point you are making is that P87 shows that the police were not armed.
MR SKRIJEL: That's exactly, except one was armed and that was that one in the checked shirt. That was the one, my daughter, was producing a gun to her and that was the only one. You can see the gun, Your Honour. There's the gun in his belt, the guy in the checked shirt. Do you see the gun in his belt, Your Honour? So you can see there was one officer armed as I said he was and none of the others were armed. Apparently Mr Mengler did not fear me at all, he was in a T-shirt, pretty relaxed and he knew I was coming…”

Mr Skrijel referred to evidence given at his criminal trial that the police had continued their search after he was arrested and had found scales containing a small quantity of green vegetable matter located on the rung of a step ladder kept in the shed, a green plastic drum containing green vegetable matter hidden under a blanket in a crate in the shed, an off-cut from a timber tongue and groove board stored in the garage, of which the grain and cut were said to match the timber used to make a seed box located at the marijuana plantation in the forest, and a small quantity of green vegetable matter on the front seat of a disused utility parked in front of the house. Mr Skrijel said that the evidence which he would adduce would show that the police had planted the cannabis and the seed box.

Mr Skrijel referred also to evidence given at the criminal trial that some hours after he had been arrested, Sergeant Cook had arrived and carried out fingerprint testing, and some days later, after the prints had been developed and checked, Sergeant Cook had claimed to have developed a left thumb print matching Mr Skrijel’s left thumb print on the barrel casing of the sawn off Cooey rifle and a palm print matching Mr Skrijel’s palm print on the lid of the green plastic drum. Mr Skrijel said that he would show that Sergeant Cook had given false evidence at the criminal trial. He claimed that the evidence which he would adduce would demonstrate that the thumb print had been lifted from a licensed Gevarm rifle which police had taken out of his house and placed in the shed and that the palm print had been lifted from the lid of a coffee canister which had been on the island bench in the kitchen when the raid began on 15 October 1985.

Mr Skrijel referred also to evidence given at the criminal trial that a quantity of explosives and detonators had been discovered, stored inside the drum under the marijuana, when the contents of the drum were being tested by a police botanist same two weeks after the raid. Mr Skrijel said that the evidence which he would adduce would show that the police had planted the explosives in the drum.

According to Mr Skrijel, the cannabis, timber off-cut, and the unlicensed firearm and explosives were planted and the fingerprint evidence was fabricated by the NCA in order to frame him and finally to silence his campaign against drug trafficking and official corruption. He contended that the NCA was formed specifically to protect the drug trade in this country - specifically to protect large scale heroin importation and other large drug dealings – and that after everything else had been done without success to silence his allegations, powerful people decided that enough was enough and a plan was devised to frame him on drugs and firearm charges so as to discredit him. As he would have it, Mr Mengler was given the task of implementing that plan and Sergeant Cook was Mr Mengler’s factotum, and they did it together by procuring the planting of the cannabis and the Cooey and giving false evidence about the finger prints, and in Mr Mengler’s case, by later spreading false reports that Mr Skrijel was a suspect for the Russell Street bombing and falsely reporting that Mr Skrijel had threatened to shoot police.

Mr Skrijel was charged at or about 11.00 am on 15 October 1985 at the Casterton police station with possession and cultivation of cannabis and possession of an unlawfully shortened firearm and unlawfully shortening the firearm, and after police claimed to have identified the cannabis in the drum and found the explosives, he was further charged on 7 November 1985 with trafficking in cannabis and possession of such a quantity of explosives as to give reasonable grounds to suspect that they were not for a lawful purpose. After a contested committal hearing at which Mr Skrijel was committed to stand trial on each of the indictable offences, he stood trial in the County Court at Ballarat and was convicted on the charges of cultivating cannabis for the purposes of trafficking, trafficking and possession of explosives under suspicious circumstances. He was subsequently sentenced to 12 months imprisonment. Upon the request of counsel for Mr Skrijel, the trial judge also accepted from counsel a plea of guilty to the firearms offence, which was a summary offence, and imposed a penalty of $200.

In his opening Mr Skrijel claimed that counsel who had represented him at his trial and the trial judge were also involved in the conspiracy to silence him. He told me that his counsel did not call any of the witnesses that he wanted him to call and that after the jury had found him guilty of the indictable offences his counsel had entered the plea of guilty to the firearms charge contrary to his express instructions that he wished to plead not guilty. He said, moreover, that as counsel entered the guilty plea the trial judge had motioned wildly to Mr Skrijel to be silent as Mr Skrijel protested loudly that he wished to plead not guilty.

Mr Skrijel appealed from each the charges of cultivating cannabis for the purposes of trafficking, trafficking and possession of explosives under suspicious circumstances, but not from the firearms charge. His appeal came on to be heard before the Court of Criminal Appeal after a number of adjournments on 18 April 1987, by which time he had served all of his sentence of imprisonment less remissions. He represented himself throughout the appeal because he said that he was unable to obtain legal aid for representation.

Mr Skrijel told me that in the course of the appeal the Court of Criminal Appeal had called for production of the green plastic drum and the black plastic lid and that one of the judges made an observation to the effect that the lid on the drum was not the same as the lid shown in Crown photographs of the lid from which the palm print was alleged to have been developed. According to Mr Skrijel, counsel who appeared for the Crown on the appeal also acknowledged to the Court that it appeared to be so. But the proceedings were not recorded and there is no other record of what is contended to have been said.

The Court of Criminal Appeal set aside the convictions for possession and cultivation and trafficking in cannabis and possession of explosives. The reasons were, in short, that the trial judge had not sufficiently directed the jury on possible inconsistency between evidence given by Sergeant Cook, to the effect that he did not think that the lid had could be removed from the drum without smudging the palm print, and evidence given by Senior Sergeant Huggins, that he had removed the lid at the scene before it was fingerprinted.

The Court did not make any order about the firearms charge and there is no reference to the firearms charge in the reasons for judgment. And there is nothing in any other court document to suggest that the Court ever considered that charge. Mr Skrijel claimed, however, that the Court of Criminal Appeal had indeed overturned his conviction on the firearms charge and he based that claim on an assertion that he had handed up to the Court the document entitled “Comprehensive Summary of the Evidence” (even though it did not make any reference to the Cooey rifle) and to the “Scales of Justice” (which did contain something of Mr Skrijel’s allegations as to the way in which the guilty plea came to be entered to the firearms charge). In a submission to the Joint Committee on the NCA on 4 October 1990 Mr Skrijel alleged that the Chief Justice and the Registrar of the Court of Criminal Appeal and possibly also the members of the Court of Criminal Appeal who heard his appeal were also involved in the conspiracy to silence him. The basis of the allegation seems to have been that there was no record of the firearms conviction having been set aside.

Mr Skrijel said that following the criminal appeal he and Mr Berthelsen had worked unsuccessfully to have politicians organise a Royal Commission into his alleged frame up but that their efforts had been thwarted by the powerful forces that were working against him. An inquiry was undertaken for the Commonwealth Attorney General by Mr David Quick QC of the Adelaide Bar, and in his final report of 4 April 1995 Mr Quick opined that there was reason to suppose that evidence may have been fabricated in order to incriminate Mr Skrijel. But Mr Quick was unable to form a concluded view and he recommended that a more formal investigation should be carried out under the Royal Commissions Act 1902 (Com).

There was no Royal Commission but a further investigation was carried out by the Victorian Deputy Ombudsman (Police Complaints), and he did not find that there was any substance in Mr Skrijel’s allegations.

Mr Skrijel spoke then of records which he and Mr Berthelsen had subsequently obtained through FOI request and of investigations conducted by a fingerprint expert, Mr Keith Murdoch. He explained that this would be the evidence which would show how Sergeant Cook had fabricated the fingerprint evidence given at the criminal trial and that it would also show that Sergeant Cook had deliberately sought to mislead Mr Murdoch when Mr Murdoch had gone later to look into the evidence as part of the Deputy Ombudsman’s inquiry.

Finally, Mr Skrijel made reference to the Cooey rifle and told me that although the Cooey rifle was made the subject of a forfeiture order at the end of the criminal trial (which it was), and so it was to be expected that it would have been destroyed, it was planted again at his Digby home in 1992 in order further to compromise his position. But he said that he did not attribute blame for that to Mr Mengler. He blamed it on the State of Victoria and perhaps also on the Commonwealth. As he explained it to me:

“MR SKRIJEL: It was in desperation to find the gun that they set me up for a second time. I'm not saying Mr Mengler himself was involved, I'm saying whoever set me up for a second time with a firearm was involved.
HIS HONOUR: If that happened, it's very unfortunate but you can't blame Chief Superintendent Mengler for it, can you, or do you?
MR SKRIJEL: No, I don't blame him. I'm blaming the Victoria Police.
HIS HONOUR: Why tell me, Mr Skrijel? Why do I need to know this?
MR SKRIJEL: Your Honour, the second defendant is the Commonwealth, the third defendant is State of Victoria - fourth defendant, sorry, and the police work for them so they are involved.”

In final address Mr Berthelsen said he contended that Mr Mengler was responsible for planting the Cooey rifle on Skrijel in 1992, as was alleged in the pleadings.

The Pleadings

As finally constituted Mr Skrijel’s pleadings consist of a Statement of Claim dated 9 May 2001 and further amended on 24 April 2003, and a number of sets of further and better particulars. In some respects they are difficult to understand. At points they appear more directed to the establishment of a conspiracy to commit perjury than to a case in malicious prosecution. Comprehension of the pleadings is also complicated by the fact that the further and better particulars have not been consolidated or incorporated into the statement of claim. In substance, however, what appears to be alleged against Mr Mengler and Sergeant Cook is as follows:

(1)On 15 October 1985 Mr Mengler directed to be laid against Mr Skrijel charges of cultivating a narcotic plant contrary to the Drugs Poisons and Controlled Substances Act 1981 (“the cultivation charge”); unauthorisedly having in his possession a drug of dependence (“the possession charge”); and unauthorisedly having in his possession a shortened Cooey 22 rifle, serial no. 022019 (“the firearms charge”).
(2)In order to substantiate the charges and to procure the prosecution and conviction of Mr Skrijel upon those charges, Mr Mengler did the following things:
•In 1985 Mr Mengler supervised an NCA investigation entitled “Operation Southend” into Mr Skrijel’s allegations about traffic in hard drugs at ports along the southern seaboard of Victoria and South Australia near to the border.
•In October 1985 Mr Mengler directed that surveillance be set up at a cannabis plantation which had been located at the Weecurra State Forest about 16 km from Mr Skrijel’s Digby home.
•On 14 October 1985 Mr Mengler obtained authority to proceed with a raid on Mr Skrijel’s home at Digby and directed that the surveillance of the plantation be terminated.
•In connection with that surveillance Mr Mengler caused quantities of cannabis to be placed in the front seat of a Holden utility owned by Mr Skrijel, which was parked outside Mr Skrijel’s Digby home; in a cardboard box which was then placed in a shed on the property; in the tray of Mr Skrijel’s kitchen scales, which were then relocated from the kitchen to the shed; and in a green plastic drum belonging to Mr Skrijel which was kept in the shed.
•Mr Mengler caused to be placed at the plantation a wooden seedbox containing earth and at the same time to be placed in the shed at Mr Skrijel’s Digby home an off-cut from some of the timber out of which the seedbox had been constructed.
•Mr Mengler caused to be placed in the shed at the Digby property the shortened Cooey rifle and caused a licensed Gevarm rifle belonging to Mr Skrijel to be brought out of Mr Skrijel’s Digby home where it was kept and placed with the Cooey on the bench in the shed and for both weapons to be photographed together.
•Mr Mengler caused Sergeant Cook to develop a latent print of Mr Skrijel’s left thumb from the wooden fore-end of the licensed Gevarm rifle and later to give false evidence that the print had been developed from the stock of the unlicensed Cooey rifle.
•Mr Mengler caused the contents of the green plastic drum, namely, six red marine flares to be removed and replaced with a quantity of explosives and detonators covered with a quantity of dried marijuana and for the drum with lid removed to be photographed so as to make it appear that the drum was full of cannabis.
•Mr Mengler caused Sergeant Cook to develop a latent print of Mr Skrijel’s palm from the lid of the coffee canister kept in the kitchen of Mr Skrijel’s Digby home and later to give false evidence that the palm print had been developed from the black plastic lid of the green plastic drum.
•Mr Mengler caused to be withheld from the hand up brief three unidentified finger prints which were found at the plantation and the existence of which was thought to be exculpatory of Mr Skrijel.
•Mr Mengler caused the prosecutor to withhold from the jury that Mr Skrijel’s allegations of retribution which were the subject of the Operation Southend investigation were factually based.
•Between the time of Mr Skrijel’s arrest and the time of his trial, Mr Mengler maliciously named Mr Skrijel as a suspect for the Russell Street bombing and maliciously alleged that Mr Skrijel was planning an attack on an NCA office.
•Mr Mengler caused Mr Skrijel’s counsel to enter a plea of guilty to the firearms charge contrary to Mr Skrijel’s instructions to his counsel that he wished to plead not guilty to that charge.
•In 1992 after the convictions had been set aside, and it had been ordered that the Cooey rifle be forfeited to the Chief Commissioner of Police, Mr Mengler caused the Cooey rifle to be planted in the ceiling of Mr Skrijel’s Digby home.

(3)Alternatively, Mr Mengler caused the charges to be laid in the absence of reasonable and probable cause, because:
•The sole basis for the cultivation charge was the tongue and groove board off-cut alleged to be found in the garage and it is said to have been noticed by police immediately standing against the wall of the shed standing next to a large heap of wood on the floor of the shed.
•The garage and shed in which the wood and the drum and the firearms were alleged to be found were unlocked and could easily have been entered by others.
•Neither the Cooey nor the drum said to contain cannabis were shown to Mr Skrijel even though police did take him into the shed and show him the cardboard box of marijuana.
•The fingerprint evidence was not available until the arrival of Sergeant Cook at 6.40 pm on 15 October 1985.

(4)Sergeant Cook swore a false statement on 6 February 1986 that he had developed a latent left thumb print belonging to Mr Skrijel on the barrel housing of the Cooey and that he had developed a latent print belonging to Mr Skrijel on the black plastic lid of the green plastic drum and testified falsely to the same effect at the committal hearing on 4 July 1986 and again testified falsely to the same effect at the trial before the County Court on 25 March 1987 and withheld exculpatory evidence constituted of the three unidentified fingerprints found at the plantation.
(5)Following conviction, Sergeant Cook deliberately misled another fingerprints expert, Mr Murdoch, who had been appointed by the Deputy Ombudsman to investigate Mr Skrijel’s complaints, by telling Mr Murdoch falsely that he had developed the print of Mr Skrijel’s left thumb on the wooden stock of the Cooey and that the Cooey had been destroyed and that the only fingerprint documents available were a polaroid photograph of a thumb print (actual size) and two sets of fingerprints.
(6)Sergeant Cook also caused a photograph of the wooden fore end of the Gevarm rifle identified as “Casing of Gun” serial number 022019 to be delivered to Mr Skrijel on 4 March 1997 in response to a FOI request for the photograph referred to in Sergeant Cook’s sworn statement of 6 February 1986 and swore falsely in his affidavit of 21 September 1998 that exhibit GWC 1 to that affidavit was the photograph which Sergeant Cook had shown to Mr Murdoch in 1987.

In their Defences, Mr Mengler and Sergeant Cook deny all of the allegations which are made against them. They deny that they are guilty of any wrongdoing in connexion with the investigation or prosecution of Mr Skrijel for the offences with which he was charged or at all.

I announced before the start of the trial and I repeated on a number of occasions throughout the trial that the trial would be conducted strictly on the basis of the pleadings. As may be apparent from so much of the opening as I have attempted to summarise above, some of the allegations made by Mr Skrijel in opening appear to go beyond the pleadings. That was not the result of any relaxation of the requirement that the case be confined to the pleadings. On each occasion that it was sought to tender evidence going beyond the pleadings, I rejected the tender expressly on the basis that it was not relevant to the matters in issue.

The evidence for the plaintiff
(i) The Plaintiff

By any standard Mr Skrijel’s allegations are extraordinary. That he chose not to give evidence on his own behalf is remarkable. He said repeatedly in opening that he had for the last sixteen years lived for the opportunity to have his allegations thoroughly and impartially investigated, and he claimed to have instituted this proceeding for that very purpose, and yet when the time arrived to have his claims examined on oath he was not prepared to do so. Consequently, there is no evidence that he ever did see the drugs drop he alleges he saw, or even that he saw what he believed to be a drugs drop, or that any of the incidents which he describes as the campaign of harassment were the result of his self-proclaimed stance on drugs (as opposed to other factors) and, if it matters, there is not even a denial on oath that he cultivated cannabis in the Weecurra State Forest or that he had cannabis and explosives in his shed or that he owned the shortened Cooey firearm which was found in the garage or that he had handled it.

It should also be understood that his decision to stay out of the witness box was an informed and calculated decision and not the result of any misunderstanding of the consequences of choosing not to give evidence or otherwise because he was not always legally represented. I warned him repeatedly of the need to give evidence to prove his assertions, and of the consequences which would follow from a decision not to give evidence. It was plain that he understood the warnings.

His explanation for not giving evidence was that a significant part of his case was dependent upon inferences which he said should be drawn from the documents, and that there was not much which he could usefully say about them on oath. Thus, as he said in response to one of the warnings I gave him:

“The thing is, Your Honour, I’m reading off 50-odd pages, those pages are not put together by me, they are put in by Mr Berthelsen here. I believe they are all factual but a lot of the words, as you can see, I can’t even pronounce them.”

And later:
“I do not intend to give sworn evidence for several reasons. The first is that is in the adversarial legal system the objective of the lawyer representing the defendant, including the Commonwealth and State of Victoria, is not to elicit the truth. It is to win to at any cost with little or not regard for the truth. Secondly, the evidence supporting the allegations contained in my statement of claim is found almost entirely in records produced by the defendants…
There are very few things that I am really saying myself…The majority of it, 95 per cent of everything I have read to you so far is in their own documents or in the transcript (of the committal hearing and the County Court trial), so I just have to sit down and consider, is it worth me going into the witness box against four QC’s whose job specifically is to mislead deceive and confuse…”

To some extent what Mr Skrijel said about the utility of giving evidence is true. His comprehension of the documents seemed at times to be limited and his understanding of the arguments in support of the inferences seemed at times to be no more than rudimentary. The greater part of the case was undoubtedly conceived and produced by Mr Berthelsen, for it follows closely the form and substance of a range of startling allegations previously made by Mr Berthelsen in a succession of publications which started at the time of the criminal appeal. They include a 54 page document entitled “Comprehensive Summary of Evidence (fully referenced)”, which was prepared by Mr Berthelsen in 1987 for the purposes of the appeal; a 38 page monograph entitled “Mehmed Skrijel on the Scales of Justice”, which was written by Mr Berthelsen in October 1988; a 33 page document entitled “Grounds for a Royal Commission into the Circumstances of the Arrest and Imprisonment of Mehmed Skrijel”, which was written by Mr Berthelsen at some time before 7 November 1989; a submission, entitled “Submission No 19 “ to the Joint Parliamentary Committee on the National Crime Authority, in which is contained, among a small library of other writings, a 107 page “Abstract” prepared and submitted to the Committee by Mr Berthelsen on 4 October 1990 (purportedly as attorney under power for Skrijel); and a collection of letters to various State and Commonwealth politicians penned by Mr Berthelsen over the period since the appeal (also purportedly in the capacity of attorney). In many respects Mr Skrijel was but a loudly talking head.

But I do not accept that lack of familiarity with the documents was Mr Skrijel’s only or even principal reason for staying out of the witness box. I am satisfied that the main reason was fear of being tested on things about which he knew. He almost admitted as much in the following observation:

“I have considered my position and believe this option (of giving sworn evidence) amounts to swimming among the sharks, if I may use the terminology.”

And, even if he did not, it would be obvious.

Whatever might be said about the embellishments which Mr Berthelsen has put upon Mr Skrijel’s claims, and thus whatever might be said about how much of the expression of Mr Skrijel’s claims originated with Mr Berthelsen, at bottom they are based on core allegations which originated with Mr Skrijel. Only Mr Skrijel could say of his own knowledge whether he ever did see any drugs drop or whether he ever was threatened because of his stance on drugs or whether he had kept the sawn off Cooey or marijuana or explosives in his shed or whether he had established a marijuana plantation in the forest. In the end he was not prepared in this proceeding to swear to the truth of what he so freely alleged about any of those things.

An equally remarkable feature of Mr Skrijel’s case was the way in which some of the most serious allegations made in opening changed from time to time. One notable example was the allegation that Sergeant Cook had given false evidence about fingerprints at the County Court trial. Part of Sergeant Cook’s evidence was that he had developed and taken a polaroid photograph of Mr Skrijel’s palm print on the black plastic screw-on lid of the green plastic drum. As first articulated on 3 March 2003 Mr Skrijel’s allegation was that Sergeant Cook had developed and photographed the palm print on the black plastic press-on lid of a coffee canister taken from the kitchen. In Mr Skrijel’s own words:

“The same with a photograph of my thumb print (sic, palm print) on a so called green plastic drum. I was sitting outside when they come and arrested me, I had a cup of coffee in my hand. The container - coffee canister was sitting on the island bench, so was the sugar, that's where my thumb print (sic, palm print) was taken - - -
The palm print on the coffee canister - the palm print on the green plastic drum (lid) was actually taken off the coffee canister (lid).”

In aid of that allegation Mr Skrijel handed up to me a green plastic drum[7], which he said was the green plastic drum in which the marijuana and explosives were alleged to have been found, together with a black plastic screw-on lid, which he said was the original black plastic screw-on lid, and he told me that he would later tender as evidence a black plastic press-on lid of the same pattern and design as the coffee canister lid, only smaller, and a video made some six months before the trial that would show the drum and the smaller sized black plastic press-on lid together. In his words:

“There's another video there that I will rely on. It's of the green plastic drum I will produce in court, the original lid, the smaller lid of the coffee canister and of the QE (sic, Cooey). Again I will rely on that evidence filmed by a person who will be called here to give evidence… That was shot only a few months back, maybe six months ago.”

[7]Exhibit P121 (drum and lid)

The pattern which is moulded into the top of the lid which he handed up to me is plainly different to the pattern which is moulded into the top of the lid shown in the palm print polaroid. The former has four radial ridges moulded into the top surface. The latter has four pairs of radial lines. The point which Mr Skrijel was therefore seeking to have me accept in the early stages of the opening was that the palm print could not possibly have come from the original lid of the drum. As he would have had it, it had to have come from the lid of the coffee canister.

Furthermore, when the video was subsequently screened[8] it did indeed show a green plastic drum and a smaller black plastic press-on lid and, significantly, the top of that lid appeared to have moulded into it a pattern of four pairs of pronounced radial lines and two pronounced concentric circles (apparently similar to the lines and circles on the top of the lid as represented in the Court Book copy of the palm print polaroid photograph). It also had a relatively smooth vertical surface of the circumference (apparently similar to the vertical surface of the circumference of the lid as represented in the same Court Book copy of the palm print polaroid).
[8]Exhibit 1D6

On 4 March 2003, however, the third defendant produced to the court a set of original contact prints of crime scene photographs[9]. One of those photographs shows the drum with a lid taken at the crime scene. It makes clear that the top of the lid at the crime scene is not of the same pattern as the top of the canister lid – the radial lines and concentric circles are much less pronounced – and unlike the canister lid, the lid at the crime scene has a succession of ridges or serrations around the whole of the vertical surface of the circumference.
[9]Exhibit 1D8 (enlargements are Exhibit 1D9)

On 5 March 2003 Mr Skrijel applied at the beginning of the day for leave to discontinue the proceeding and after argument on that application, which was in effect abandoned, the trial was adjourned to 7 April 2003 to allow Mr Skrijel to take legal advice and to endeavour to retain counsel to appear for him for the remainder of the trial. For whatever reason he was unable to retain the services of counsel.

When, however, the trial resumed on 7 April 2003 counsel for the third defendant called for production of the lid. He did so pointedly by reference to a list of documents and things of which Mr Skrijel’s former solicitor had given notice in January 2003 as documents and things that Mr Skrijel intended to rely upon at trial. Thus the call was made:

“What I want to call for, Your Honour, is in fact item 73. I don't know what it is but it's identified as a black press-on type lid from a kitchen canister photographed by police and referred to at the plaintiff's trial as the lid belonging to exhibit H and the entry is ‘see physical exhibit’. We would like to call for the production of item 73.”

But the lid was not produced. Instead, Mr Skrijel said:

”I cannot find, I have lost it, I have been looking for it for weeks on end. They have been hiding it in too many places in the forest. The one place where I hid it, they started cutting the forest and bulldozers and trucks went through it; the same place - not the same place but the same block, the gun was hidden too and it took me two weeks with a call detector person going looking for it trying to find it.”…

The fact that the lid was said to have been lost so recently was enough to make me wonder about it. The fact that it was said to have been lost in the way described by Mr Skrijel was enough to make me doubtful. Further doubt was cast upon the matter by evidence later given by Mr Berthelsen in cross examination. At one point, he agreed he did not know as at 4 March 2003 that the lid had been lost; at another point he said that he could not recall when it was that he had learned that the lid had been lost; at another point he said that he recalled that he had learned of its loss some time before 4 March 2003, although he could not recall the details; and then, after a significant adjournment, he gave in response to scripted questions put to him in re-examination by Mr Skrijel’s current solicitor a detailed account of how he had learned of the loss in January 2003 and had conferred with Mr Skrijel and Mr Skrijel’s former solicitor at that time about the profound effect which the loss of the lid would have on Mr Skrijel’s case. Asked then why the defendants had not been informed of the loss of the canister lid before the trial began, he said that he believed that Mr Skrijel’s former solicitor had informed them. The former solicitor was not called to give evidence, despite the fact that I gave an express Jones v Dunkell warning to Mr Berthelsen and Mr Skrijel’s current solicitor.

Still further doubt was cast upon what was said about the loss of the lid by the way that Mr Skrijel continued with his opening after 7 April 2003. At first he seemed oblivious to the production of the contact sheets on 4 March 2003, or at least oblivious to what they showed. Thus there was the following exchange in the course of his opening on 9 April 2003:

Mr Skrijel: “Surely if that drum was full of marijuana and gelignite, there should have been a crime scene photograph, Your Honour. We have got a crime scene photograph in a little thumb print photograph that were only produced the other day in this court. You cannot see nothing of it.”
His Honour: “Isn't that a crime scene photograph of the drum?”
Mr Skrijel: “Your Honour, where is the lid, where is the lid on it? It's a crime scene photograph is a thing with the lid on and they point the finger where the palm print is and then they take the palm print, that's a crime scene photograph. A drum like that does not tie me up to anything because there's no fingerprints on anything there.”

Later it emerged why. As already noted, the Court Book copy of the palm print photograph was a photostatic copy of the original. Because of the poor quality of reproduction the photostatic copy made it appear that the radial lines and concentric circles on the top of the lid were much more pronounced than in fact they were, and that there were very few ridges or serrations around the vertical surface of the circumference. Apparently Mr Skrijel was still working off the photostat and so did not realise that the clarity of the original contact prints contradicted his assertion that the lid shown in the contact prints was not the lid on which the palm print had been photographed. Oblivious to what the contact prints actually showed, he continued with the contention that the lid which he had handed up to me was the original lid of the drum.

The problem for him which then emerged, however, was that the drum as returned to him by the Crown had been photographed by television station GTV 9 shortly before its return, and he had acknowledged in Submission 19 that the lid as shown in the GTV 9 photograph[10] was the lid as it was returned to him. The lid in that photograph corresponds exactly with the lid shown in the crime scene contact prints.
[10]Exhibit 1D10

A still further problem for him emerged when it was later realised that if one looks at the original of the palm print polaroid[11] instead of the photostat, the radial lines and concentric circles on the top surface are not pronounced and the lid has serrations or ribs around the whole of the vertical surface of the circumference. It is identical to the lid shown in the crime scene contact prints[12]. Hence the lid from which the Crown had alleged the palm print was taken was or was identical to the original lid of the drum and dissimilar to the lid of the coffee canister.
[11]Exhibit P125
[12]Exhibit 1D8

At about that stage Mr Skrijel experienced the bout of nervous anxiety which was said to make it impossible for him to carry on the presentation of his case.

I do not accept that Mr Skrijel could have been mistaken about the lid which was on the drum when it was returned to him by the Crown, or that he could have been mistaken in contending that the lid on the drum which he handed up to me was the original lid, as he endeavoured to persuade me that it was. The evidence makes plain that it was not.

A third matter which I regard as reflecting adversely upon the veracity of the allegations made by Mr Skrijel in the course of his opening was what he said about possession of the sawn-off Cooey rifle. The difficulty which he faced from the outset was that he had pleaded guilty to possession of that weapon. Of course it does not necessarily follow from the fact that he pleaded guilty that he was guilty. The admission of guilt was powerful evidence but not necessarily insurmountable. There could have been an explanation consistent with innocence, such as fear or illness or ignorance or even expedience[13]. And if that had been the claim and if he had given sworn evidence to that effect I would have been ready to be persuaded. But the course which Mr Skrijel chose to pursue was nothing like that. As I noted above, the allegation which he made in opening was that his barrister had entered a plea of guilty to the firearms charge contrary to his express instructions to plead not guilty and that the trial judge had motioned to him wildly to be silent when he called out that he wished to plead not guilty. As Mr Skrijel put it in opening:

“I was placed in custody in the cells at the rear of the court immediately after the jury convicted me on the three indictable offences and was still in custody when the firearm charge was read out and when my barrister entered a guilty plea contrary to my instructions. The firearm charge was never read to me, Your Honour and I believe the rules of the court state that the charges should be read to the accused and then his barrister can plead, if that's the way it's been directed.”

[13]R v Murphy [1965] VR 187 at p.191; Narong Van v R [2002] NSWCA 148 at [48] and[49]

Mr Skrijel had previously put the same allegation, albeit in different terms, in paragraph 6 of an affidavit which he swore in support of an interlocutory application on 26 February 2002, as follows:

“Mr Brewer (his counsel at the criminal trial) returned to the Bar table and informed the court that I intended to plead guilty. I called out loudly that I pleaded not guilty. (The Judge) motioned furiously to me to be quiet and accepted the guilty plea from Mr Brewer. I was fined $200 and (The Judge) ordered that the shortened Cooey firearm, serial number 022019, be forfeited to the Commissioner of the Victoria Police.”

Contrary to those remarkable allegations, the evidence shows that Mr Skrijel did instruct his barrister to plead guilty to the firearms charge; he was not locked in the cells during the plea; and there was no yelling out or anything else to suggest that the plea was not intended.

It will be recalled that Mr Skrijel was charged on 15 October 1985 at the instigation of Sergeant Carmady with the offences of possession and cultivation of cannabis and possession of the firearm and shortening the barrel of the firearm, and that he was charged on 7 November 1985 with the further offences of trafficking in cannabis and possession of the explosives. Even before those further charges were laid, on 23 October 1985 Mr Skrijel’s then solicitors, Prus & Markopoulos, wrote to Sergeant Carmady as follows:

“RE: MEHMET SKRIJEL
We confirm a telephone conversation between yourself and Mr Prus of our office on even date and confirm that our client intends to adopt the following course in respect of the charges against him:
1. In respect of counts 1 and 2 of cultivating and possession of cannabis L, the accused has instructed us that he intends having the matters dealt with by way of Committal proceeding,
2. In respect of count 3 and 4 (sic), the accused instructs that on the charge of being in possession of a pistol, to wit a .22 calibre shortened firearm, he intends to plead guilty to that charge and have that matter dealt with summarily. In respect of count four, that of shortening the barrel of the firearm, he would be pleading not-guilty, however, we understand that as both these charges arise out of the same circumstances, that count 5 being an alternative would then be withdrawn…” (My emphasis.)

The transcript of the criminal trial records that on 1 April 1987 the jury brought in a verdict of guilty on one count of cultivating cannabis for purposes of trafficking, one count of trafficking in a drug of dependence and one count of possession of explosives under suspicious circumstances. At that point the allocatus was addressed to Mr Skrijel, and Mr Skrijel’s counsel then asked for time to speak to the Crown prosecutor. At 11.29 am the court adjourned to accommodate that request.

The Court resumed at 11.46am. The transcript records that at that point Mr Skrijel’s counsel told the judge that he had resolved what needed to be resolved and the Crown prosecutor then filed an information under s. 359AA of the Crimes Act 1958 so that the summary charge of being in possession of the shortened firearm could be dealt with at the same time as the indictable offences. The judge then asked Mr Skrijel’s counsel whether it was Mr Skrijel’s intention to plead guilty to that charge and counsel responded that it was and that Mr Skrijel wished the plea of guilty to be entered through counsel. The plea followed in relation to all offences, with Mr Skrijel apparently in court in the dock, concluding at approximately 2.31 pm. At the conclusion of the plea the judge remanded Mr Skrijel in custody pending the provision of a psychiatric report for further plea and sentence.

The matter then came on for sentencing on 10 July 1987 and the transcript records that near to the outset of that occasion Mr Skrijel told the judge that the plea which had been presented for him by counsel on the last occasion was not his plea and that he wanted to present his own. To begin with the judge demurred, but then his Honour was silent while Mr Skrijel said all that he seems to have wanted to say. Mr Skrijel delivered himself of a diatribe as to the way in which his counsel had conducted his defence and far ranging allegations about the shortcomings of the NCA, similar to those which he has made in this proceeding, and of the sacrifices he had made in the cause of fighting drugs and corruption, and he concluded with the following peroration:

The first defendant who was ultimately responsible to ensure that investigations were carried out competently in accordance with law evidently did nothing to ensure that Sergeant Iddles had done every thing that might be expected of a man of ordinary prudence and caution.”

I think that that argument is also deficient in a number of respects. The first is that even if one accepted the criticisms of the evidence upon which Sergeant Iddles proceeded, there would still have been sufficient basis to seek the search warrants which were obtained from Magistrate Musgrave. All that was required was information which would satisfy a Magistrate that there were reasonable grounds for believing that there would be found within the house anything which it was believed on reasonable grounds would afford evidence as to the commission of an indictable offence. And, as Senior Sergeant Iddles deposed time and again in the course of cross examination, there was information which did that:

“MR BERTHELSEN: I know we have covered some of this ground, Mr Iddles, but could you just start by telling me, please, when you first had a suspicion that Mr Skrijel might be involved in some sort of illicit activity? _ Involved in – I missed the last word?
In some form of illicit activity? --- The first time I became aware I guess was when Barry Trembath made a comment that to grow a crop would be a good way to make some money, that in itself didn't I suppose ring a lot of alarm bells. I spoke to Graham Watson, that's Graham Leslie Watson, he told me that Skrijel again had also offered him, to set him up and to grow marijuana which he rejected and they were saying to me things like, ‘You've got to be careful, he's making all these allegations; it's a smoke screen, you want to look behind’. Again, as to what weight I placed on that at the time I can't recall. It's not until I spoke to Henry McClintock who told me that he had had a conversation with, I think, Bill Lane. I ultimately spoke to Bill Lane and he said, ‘Look, I've seen Mr Skrijel coming out of the Weecurra State Forest or in the Weecurra State Forest with a couple of sheets of tin’. Then I started to think, hang on a minute, I have got some information from both Trembath and Watson that he was interested in growing a crop, he spoke about growing it in the bush and here I had him in the middle of the bush with two sheets of tin and two unidentified males and it wasn't until I actually went there and found the marijuana that it confirmed that he may be involved.”…
…
So it was not the kind of place you would stumble across by accident, was it? --- That who would stumble across it? Anybody who went to, say, Boyd's Hut area, anybody who drove along the track would hardly stumble across the plantation by accident, would they? --- No, probably very difficult.
So the mere fact that somebody is seen driving along the track or walking along the track with two sheets of iron should not have been a cause, a reason to jump to any conclusions about cultivation of cannabis, should it? --- Hang on a minute. Mr Lane sees Mr Skrijel in the bush with two other men who he does not know. He seems him bob down or something similar. He sees him with two sheets of galvanised iron. He talks to him. They say they are out shooting, they don't have guns. It's not far off the creek area. No, that's probably not for Mr Lane to be alarmed but then I couple it altogether with what I'm told by Watson and Trembath and yes, by that stage I'm starting to be concerned…
Did you at any time, after you got that information, say to Mr Mengler, ‘I think we should interview Mr Skrijel’? --- No. Mr Mengler would have said, ‘Don't be stupid. You are experienced investigator, don't even attempt it’.
Why would he have said that? --- Because here you have a situation where a man is a suspect by 8 October for growing a crop of marijuana. If I go to him and say, ‘Mr Skrijel, you were seen out in the bush carrying two sheets of tin’ and in fact he is the person who is growing the crop of marijuana, he is never, ever going to come and tend to that crop.
Let's get it clear. Your suspicions were based upon highly suspect information, information coming from two people who had been accused of being involved with heroin and Mr McClintock, you had no clue at all about the connection between him and Mr Lane and you did not even enquire; is that correct? --- As I said, I don't know what weight I placed on the evidence or the information given to me by Trembath and Watson. I spoke to McClintock. As a result I went to the source, Mr Lane. He directed us out and we located a crop. Why was Mr Skrijel a suspect in the first place? --- At the stage I located the crop, I have evidence from Mr Lane that he has seen a man who he knows is Mick with two other people carrying two sheets of tin. He sees, at the crop site, two sheets of galvanised tin which he believes is of a similar age and appearance as to what he saw with Mr Skrijel. Surely there are some facts known to the investigating official which might tend to reveal Mr Skrijel is involved….
… I am saying he was set up by you people because of his actions in persisting with making allegations about heroin importation and, two, it was getting up your nose that he was handing out pamphlets deriding the kind and quality of your operation called Operation Southend and he was deriding you in pamphlets in front of the NCA headquarters and the Supreme Court? – Firstly, he was not set up; secondly, the fact that he’s published things with my name in it and he’s continually done for the last 18 years I’ve lived with it and it hasn’t got up my nose...
… I considered him a suspect because I had information from Graham Watson, I had information from Barry Trembath. I had spoken to the source of the information which was Lane who had seen Mr Skrijel in the bush with two men and some sheets of tin. On 8 October I went there with Mr Lane, we located a plantation. The two sheets of tin which Mr Lane had seen Mr Skrijel with he believed formed the table or were similar. In my mind as the investigating official, it was more than mere speculation or idle wandering. I had some material fact which would to tend to make me believe more likely than not that Mr Skrijel may be involved in that plantation.”

The second respect in which the argument is deficient is that the criticisms of the evidence are not justified. For the reasons which Sergeant Iddles gave in evidence, and which I accept, after interviewing Trembath and Watson he believed that what they were told him was truthful; for the reasons which he explained, and which I accept, he was not able to get access to Mr Skrijel’s fishing records (Mr Skrijel refused to allow it), and hence he could not ascertain how long it had been since Mr Skrijel ceased to be involved in painting (if indeed he had ceased to be involved); for the reasons which he gave, and I accept, he regarded Lane as truthful and reliable; and for the reasons which he explained, and self evidently, it would have been absurd to ask Mr Skrijel what he knew of the plantation before obtaining search warrants to search Mr Skrijel’s home for evidence to connect Mr Skrijel to the plantation[92]. The method of investigation which Sergeant Iddles adopted was calculated to produce the best results in the difficult environment of a small coastal village; there was considerable reason to doubt Mr Skrijel’s story about the drugs drop at sea, not least for the reason that Mr Skrijel said nothing about any such thing during the South Australian coronial inquest into the burning of his boat (which was held in 1979 soon after the alleged drug drop in 1978)[93] and because the story changed in significant details over time and from time to time (for example, Mr Skrijel told the coroner that he had sacked Watson because he was an unreliable worker and not because Watson had anything to do with drugs); there was some reason to suspect that Mr Skrijel may have caused the burning of his boat in order to claim the insurance; there was some reason to suspect that Mr Skrijel may have started the fire in his house in order to claim the insurance; and there was evidence (obtained from Dr Kahn and in the course of the interview of Mr Skrijel on 13 June 1985[94]) that Mr Skrijel had suffered a nervous breakdown and was threatening to shoot police.
[92]Herniman v Smith [1938] AC 305 at p. 319
[93]Exhibit 1D35
[94]Exhibit 1D47

The third respect in which the argument is deficient is that it assumes, incorrectly, that Mr Mengler and Sergeant Cook were responsible for the decision to arrest and charge Mr Skrijel with the original charges on 15 October 1985 and the further charges on 7 November 1985. As explained already, the decision that Mr Skrijel be charged was made by Sergeant Carmady as the officer in charge of executing the warrants and not by Mr Mengler or Sergeant Cook. Accordingly, the question of whether Mr Mengler or Sergeant Cook had reasonable and probable cause to charge Mr Skrijel is a misdirected inquiry.

The fourth respect in which the argument is deficient is that, even if the actions of Sergeant Carmady could in some way to be attributed to Mr Mengler and Sergeant Cook, and on that basis it could be said that they caused Mr Skrijel to be charged, the evidence shows that Sergeant Carmady believed that the probability of guilt was such that upon general grounds of justice the charges were warranted[95]. In my opinion it also shows that his belief was based upon information which would justify a man of ordinary prudence and caution in believing that Mr Skrijel was probably guilty[96]. Not only was there the information on which Sergeant Huggins had based his decision to set up the surveillance and obtain the warrants, there was also the cannabis and the Cooey rifle which were obtained during the search on the morning of 15 October 1985; the responses which Mr Skrijel gave to the questions asked of him at the house and in the forest[97]; and the answers which he gave to the questions asked of him during the formal interview at Casterton Police Station. By the time of the further charges, there was in addition the evidence gathered by Sergeant Huggins and the discovery of the explosives and detonators in the green plastic drum coupled with Mr Skrijel’s responses to the further questions asked of him on 7 November 1985.
[95]Sharp V Biggs (1932) 48 CLR 81 at p. 86; Gonski v McIver [1962] AC 726 at pp. 758 and 767
[96]Mitchell v John Heine (1938) 38 SR (NSW) 466 at p. 469-471
[97]Woon v R (1964) 109 CLR 529; R v Beljajev [1984] VR 657 at p. 662

Finally, it is to be remembered that the burden of proving absence of reasonable and probable cause lies squarely on the plaintiff, and that the standard of proof is high[98]. That does not mean something other than proof on the balance of probabilities, but it does mean that the evidence has to be strong[99]. As Flemming says it, is not enough to adduce reasons for non belief without showing that they were operative. One way of doing that is to show that no reasonable person could have believed in the guilt of the accused. But even if the evidence in this case did not go so far as to establish positively that there were reasonable grounds for what was done - and in my view it does - it could not by any stretch of the imagination be said to point so overwhelmingly to Mr Skrijel’s innocence that no reasonable person could have believed in his guilt.

(iv) Favourable termination

[98]Mitchell v John Heine ibid; Flemming supra at p. 683

[99]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449 at pp. 449-450

According to Flemming:

“… if proceedings terminated in favour of the plaintiff, it matters naught how this came about. The crux is not so much whether he has been proved innocent as that he has not been convicted. This, of course, accords with the presumption of his innocence until found guilty according to law. Thus he is not required to show an acquittal on the merits; it may as well have bee based on some defect in the indictment or on his conviction being quashed on appeal for some irregularity of procedure. It is not even necessary that the proceedings had advanced to a stage where a further prosecution was precluded on the ground of double jeopardy, so long – it would seem – as they have terminated in such a manner that they cannot be revived without starting afresh. This explains why it has been held to be enough that a magistrate refused to commit the accused for trial, a grand jury declined to find a true bill, or) its counterpart in New South Wales) the Attorney-General refused to file an indictment. Even the mere discontinuance of a prosecution of the entry of a nolle prosequi after an indictment had once been filed may now, despite some earlier doubts, be regarded as in every way sufficient. In none of these cases is it permissible for either party to reopen the question of innocence or guilt; it is neither incumbent on the plaintiff to establish his innocence, nor may the defendant set out to prove that the accused was fact guilty of the crime charged against him.” (Emphasis added).

It seems to me, however, that the law in this country is not so simple. In Davis v Gell[100] a majority of the High Court held that a nolle prosequi was not enough to establish that the proceeding had terminated favourably to the plaintiff. The plaintiff had also to prove that he was innocent of the offence with which he was charged. Flemming[101] says that the decision in Davis v Gell may safely be discounted in light of Commonwealth Life Assurance v Smith[102], and that the decision in Mann v Jacombe[103] establishes that the entry of a nolle prosequi after an indictment has been filed is in every way sufficient[104]. I do not see how that can be correct.
[100](1924) 35 CLR 275
[101]supra p. 679
[102](1938) 59 CLR 527
[103][1961] NSWR 273
[104]to similar effect, see Trindade and Cane, at p. 91

Davis v Gell was a case in which a nolle prosequi was entered after the plaintiff had been committed to stand trial and had pleaded not guilty to the indictment. The High Court held by majority that in an action for malicious prosecution the plaintiff had to prove his innocence. The nolle prosequi established that the proceedings were terminated in his favour but that did not establish his innocence.

Commonwealth Life Assurance v Smith was not concerned with a nolle prosequi. The Court was concerned with the attorney general’s refusal to file an indictment, and the majority held that:

“Unless the termination of the criminal proceedings has been by nolle prosequi, a case which is covered by Davis v Gell, the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff.“ (My Emphasis).

As I read that decision it expressly preserves the effect of Davis v Gell in its application to cases of nolle prosequi[105].

[105]see too Earnshaw v Loy ( No 1) [1959] VR 248 at p. 249, per Sholl J

That being so, I do not understand how any decision other than another decision of the High Court could be thought to alter the position. Whatever the depth of learning in the decision in Mann v Jacombe may have been it could not have the effect of altering a decision of the High Court[106]. Until the High Court says otherwise, the law in relation to nolle prosequi remains as in Davis v Gell.
[106]Federal Commissioner of Taxation v Ryan (2000) 201 CLR 19 at p. 128

Moreover, it does not appear to me that the court in Mann v Jacombe did purport to decide anything contrary to Davis v Gell. Mann v Jacombe was about pre Judicature Act pleading in New South Wales. The point at issue was whether the plaintiff against whom the criminal proceeding was non pros had to plead innocence. It was held that he did not. The court said only that:

“…it appears that the balance of decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution.”[107]

[107]supra at p. 273

Perhaps Mann v Jacombe says something inferentially about what the plaintiff would later have to prove at trial. But I do not think it has to be taken that way. The decision in Davis v Gell was that it was necessary for the plaintiff to prove his innocence, not that he had to plead it, and as Starke J noted in Davis v Gell that had long been the law:

“But it is ‘not necessary in an action for malicious prosecution that the plaintiff should allege or prove such an acquittal, for it may be brought under circumstances which preclude the possibility of such and acquittal’ (Selwyn’s Nisi Prius, 13th ed., vol. II., p. 105). He may show, for Instance; that the proceedings terminated in his favour by a nolle prosequi or by the ignoramus of a grand jury or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the Court or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case.“[108]

I see no necessary inconsistency as between that and what was held in Mann v Jacombe.

[108](1924) 35 CLR at p. 297

In the course of final addresses the first and third defendants provided me with references to a number of American authorities on the question of nolle prosequi in the law relating to malicious prosecution and it was submitted on the basis of those authorities that, despite the decision in Davis v Gell, a nolle prosequi is only to be regarded as a favourable termination of the criminal proceeding if the reasons stated for the nolle are “consistent with the innocence of the accused” rather than for “procedural or technical defect”[109]. For the reasons already given I do not consider that it is open to me to adopt that course. I regard myself as bound by Davis v Gell.
[109]Wynne v Rosen 391 Mass. 797, 464 NE 2d 1348 (1984); Swick v Liautaud 662 NE 2d 1238 (1996) at 1242–1243, per Heiple J; Kincaid v Ames Dept Stores, Inc 670 NE 2d 1103 at p. 110,per Cousins J;
Logan v Caterpillar Inc 246 F.3d. 912 (2001); Washinton v Summerville 127 F.3d. 552 (1997); Murphy v Lynn 118 F.3d (1997)

But in case the matter goes further, and a higher court takes a different view of the law, I should say too that I do not consider that the reasons for which the nolle prosequi were entered in this case were “consistent with innocence of the accused” (in the sense in which that idea is used in the American jurisprudence). A Memorandum of 10 April 1989 from the Solicitor to the Director of Public Prosecutions[110] and the Advice of the Prosecutor for the Queen of 13 April 1989[111] show that the decision to enter a nolle prosequi was not the result of any perceived inadequacy in the evidence. Rather it was considered that because Mr Skrijel had no prior convictions and had served his sentence less remissions by the time of the appeal, there was no practical reason to incur the cost of a re-trial. As it was put in the Crown Prosecutor’s advice, it was considered that the case was a dead letter and it was entirely appropriate to direct a nolle prosequi because no further benefit to the community was to be had from spending money and time on a retrial.
[110]Exhibit 1D63
[111]Exhibit 1D64

My conclusion, however, is that the plaintiff has not proved that the criminal proceeding terminated favourably to him because, in the case of the indictable offences which were the subject of the nolle prosequi, he was bound to prove his innocence of the charges, and he has not done so - indeed he has not even attempted to do so – and in the case of the firearms charge, his conviction was the result of his plea of guilty and it was not the subject of appeal and it stands.

Limitation of Actions

The third defendant pleaded as one of its defences that the plaintiff’s cause of action accrued more than six years before the third defendant was joined as a defendant to the proceeding in 1998, and thus it was statute barred[112]. There was no plea in reply to that allegation but during the course of final addresses I allowed the plaintiff to put an argument that the right of action had been concealed by fraud and therefore that time had not begun to run until the fraud was discovered or could with reasonable diligence have been discovered[113].
[112]Limitation of Actions Act 1958, s. 5(1)(a)
[113]Limitation of Actions Act 1958, s. 27(b)

As it appears to me, any cause of action which the plaintiff may have had against the third defendant must have accrued no later than the date on which the plaintiff was convicted of the indictable offences. It follows that since he was convicted on 10 July 1987 and was sentenced on 24 July 1987, any cause of action was well and truly time barred by the time of joinder in 1998, subject to question of concealment.

The question of concealment was dealt with at some length by Eames J in 1998 in his Honour’s reasons for refusing an interlocutory application to strike out the plaintiff’s claim against the third defendant[114]. Evidently the plaintiff’s statement of claim was then in form considerably different to its present form and included allegations of misfeasance in pubic office and conspiracy. What was said by his Honour, however, remains relevant to the plaintiff’s claim for malicious prosecution. The essence of it was as follows:

“58.The question is not without its difficulty, but it seems to me that it is arguable that what the plaintiff learned in 1998, by virtue of Murdoch and his investigations, is that Cook had presented to the jury a photograph purporting to be that of a fingerprint obtained on the Cooey rifle when in fact the photograph was not a photograph of the Cooey rifle, at all, but of some other object on which the plaintiff's fingerprint, legitimately, was located. On one view, that is a discovery merely of evidence to supply an allegation of misfeasance of public office by Cook. On the other hand, the plaintiff argues that however great his suspicions were that Cook had given false evidence to the jury, it was only by virtue of Murdoch's evidence (and Cook's alleged role in misleading Murdoch) that the plaintiff established that Cook, and not someone else, had been responsible for the production of false evidence against him, by manufacturing a photograph purporting to be a photograph of the Cooey rifle, when it was not. That precise fact, if proved, would demonstrate that Cook was not merely an unwitting tool of some other person in presenting false evidence, but must have himself been involved in a deliberate action of concoction of a photograph.
59.That seems to me to be more than mere evidence, arguably, and to be capable of constituting an essential element of the …[the cause of action]…
60.The actions of Cook in his dealings with Murdoch arguably also disclosed, for the first time, that it was Cook, and not someone else, who was engaged in a conspiracy with others (in particular the firstnamed defendant) to present such evidence for the purpose of obtaining a conviction against the plaintiff…
61.In my view, although the matter is not free from doubt, by any means, it is certainly arguable that facts which were essential parts of the causes of action of conspiracy and misfeasance in public office had been suppressed by Cook and were only discovered in 1998 by the plaintiff, however much he suspected those facts earlier. That being so, the plaintiff, arguably, might be able to defeat the limitation defence by reference to s. 27(b).“

[114][1998] VSC 71

I respectfully adopt his Honour’s reasoning. I consider that if Sergeant Cook had fabricated the fingerprint evidence and had given false testimony as alleged, there would have been concealment within the meaning of s. 27(b) and that it would not have been discovered and could not with reasonable diligence have been discovered until 1997, when Mr Murdoch’s evidence first became available to Mr Skrijel. But the point is moot. There was no fabrication or false testimony and thus there was no concealment. Section 27 does not apply.

Vicarious liability

The second and fourth defendants favoured me with extensive submissions on the questions of whether the Commonwealth could be held vicariously liable for the misdeeds alleged against Mr Mengler and whether the State of Victoria could be held liable for the misdeeds alleged against Sergeant Cook. They include contentions that a policeman is not an employee of the Crown he serves (and thus that there is not between the Crown and the policeman a master and servant relationship for the purposes of the law relating to vicarious liability)[115]; that, in any event, the misdeeds which are alleged against Mr Mengler and Sergeant Cook were undertaken in the performance of independent duties imposed upon them by statute and to be exercised as a matter of independent responsibility (and thus for which the Crown cannot be liable)[116]; and that, even if the Crown might otherwise be liable for the acts or omissions of a policeman, it is not liable for fraudulent conduct of the kind alleged[117].
[115]Attorney–General for New South Wales v The Perpetual Trustee Company (Limited) (1952) 85 CLR 237 at p. 255, per McTiernan J and at p. 261, per Webb J; cf at p. 250, per Dixon J; and in the Privy Council at (1955) 92 CLR 13 at p. 129 per Viscount Simonds
[116]Enever v The Queen (1906) 3 CLR 969 at 983 and 989; Attorney General v Perpetual supra at 85 CLR at 250, 252, 284 and 303-4; State of Victoria v Horvath [2002] VSCA 177 at [42]; Jarrett v Seymour (1993) 46 FCR 521 at p. 529 (policeman seconded to the NCA)
[117]Deatons Pty Ltd v Flew (1949) 79 CLR 370; cf New South Wales v Lepore; Rich v Queensland [2003] HCA 4 at [74] per Gleeson CJ, at [239] per Gummow and Hayne JJ, at [315–320] per Kirby J and at [341-342] per Callinan J

Since I have found that Mr Mengler and Sergeant Cook did not commit any of the misdeeds which are alleged against them, these issues of vicarious responsibility do not arise and I say nothing further about them.

Conspiracy

There was, however, one argument put by the plaintiff concerning vicarious liability of which something further needs to be said. It was that the Commonwealth and the State were vicariously liable because they were party to a conspiracy “which includes corrupt police officers, self-serving politicians, crooked judges and a judicial system which no longer knows the meaning of the word justice”[118].
[118]The words come from paragraph 1 of the “Abstract” which forms part of Submission 19 (Exhibit 1D19)

According to that analysis, the allegedly corrupt police officers include Mr Mengler and Sergeant Cook and Sergeant Rogers and Sergeant Milner as well as Sergeant Huggins and Mr Roddick and Mr Salter. The self serving politicians include the politicians previously mentioned (Mr Fraser, Mr Hawke and Mr Young) and also Senator Tate (who, as I understood the contention, is alleged to be implicated because of his refusal to appoint a Royal Commission to inquire into Mr Skrijel’s allegations of corruption and “frame-up”).

The “crooked judges” are alleged to include Sir John Young, formerly the Chief Justice of Victoria, and his Honour Judge Nixon of the County Court, who was the trial judge.

The “judicial system which no longer knows the meaning of the word justice” is alleged to include the judges just mentioned, as well as Mr Jack Gaffney (formerly the Registrar of the Victorian Court of Criminal Appeal) and Mr Justice Coldrey (formerly the Victorian Director of Public Prosecutions), Mr Justice Stewart (some time chairman of the National Crime Authority) and Mr Julian Leckie SC (some time acting chairman of the National Crime Authority).

It is also alleged that a significant part of the legal profession is involved in the conspiracy. Participants are alleged to include the prosecutor at Mr Skrijel’s criminal trial, Mr Lee, and defence counsel, Mr Brewer: in Mr Lee’s case, it is said, for not disclosing that Mr Skrijel's harassment allegations were true and in Mr Brewer’s case, it is said, for not conducting Mr Skrijel’s defence as Mr Skrijel wanted it conducted; Mr Prus, who was the solicitor who wrote on behalf of Mr Skrijel advising that Mr Skrijel wished to plead guilty to the firearms charge (he is said to have had no authority to offer the plea of guilty); Mr Nurendini, who was Mr Skrijel’s solicitor until he ceased to act shortly before the trial of this proceeding; and Mr Kauffman of counsel who was to represent Mr Skrijel in the trial of this proceeding until Mr Skrijel rescinded his retainer days before the beginning of the trial.

Sir John Young is alleged to be involved on the basis of responses written by his associate to requests made by Mr Berthelsen late in 1988 for a transcript of Mr Skrijel’s criminal appeal. The substance of those responses was that there was no transcript of the appeal. It was said of that response:

“It could be argued that even the Chief Justice and the Registrar are both blind to injustice in matters involving the NCA. Even if it was true that transcripts were not taken of Appeal Court proceedings, the layman might be forgiven for wondering why a transcript would not be ordered when warning is given in a previous hearing that evidence of fabrication of evidence would be given at the subsequent hearing. That was not the case however, and the decision of the Court not to keep a record of the proceedings, or at least to acknowledge that there was a record has to be considered in the context of what was said to the Full Bench of the Supreme Court on 6 November 1987. It is left to Committee members to decide whether there was a possible conspiracy to conceal evidence and if there was whether the NCA may have bee party to that conspiracy.” [119]

[119]Abstract, ibid, paras 14-18

The Registrar was said to be included because he had not responded to letters sent by Mr Berthelsen to him after Sir John Young had said that no further correspondence on the subject would be entered into.

The Director of Public Prosecutions was alleged to be involved on the basis that although he was provided with the “Comprehensive Summary of Evidence” he had done nothing with it.

His Honour Judge Nixon was alleged to be involved because he had made mention in the course of his sentencing remarks of a pre-sentence psychiatric report prepared by Dr John Grigor, psychiatrist, in which Dr Grigor expressed the opinion that Mr Skrijel was suffering from paranoia. Dr Grigor had invoked what he described as the “common man test ” as an aid to determining whether Mr Skrijel’s allegations were delusional. Of this it was said by Mr Berthelsen (who has no medical or legal qualifications) that:

“Such quackery would normally be rejected by a judge with any integrity, so why did the judge seize upon these ludicrous comments of Grigor when he had properly prepared professional opinions in his hands? It is left to the Committee to decide whether it is likely that, at some earlier time, someone in the NCA might have given the good doctor and the judge a few straight word of advice – the kind that was given to Peter Faris before his resignation.”[120]

[120]Abstract, ibid, paras 22 and 23; Mehmed Skrijel on the Scales of Justice, Exhibit 1D 21 paras 149 et seq.

Mr Justice Stewart and Mr Leckie were alleged to be involved because each of them at different times headed up the National Crime Authority. Mr Justice Stewart is said to have demonstrated his complicity by reporting to Senator Baume that Mr Skrijel’s allegations had been fully investigated, whereas Mr Skrijel maintains that the investigation was a sham. Mr Leckie is said to have demonstrated his complicity by presiding over the National Crime Authority when it was discovered that the Matthews’ tapes had been lost.

Further evidence of the existence of the conspiracy was said to exist in the fact that Mr Skrijel’s daughter’s car had caught fire after Mr Skrijel had gone to the Hamilton press:

“On May 14 1988, the Hamilton Spectator ran a story on page one ‘Justices Uphold Appeal - Frame-up claims’. Another story appeared in the Sunday Press on May 28, ‘Hell for man who said “no” to the drug runners.’ Five days after the Sunday Press story, on Friday June 3, Skrijel’s elder daughter went to Tullamarine airport to pick up her mother from her place of employment. She parked the car, switched off the ignition and within minutes of leaving the vehicle, it was engulfed in flames, and totally destroyed. The vehicle was worth in excess of $4,000 and was not insured.
… Soon after the incident, Skrijel was given a message which his informant said came from police. It was to keep away from the press in the future.”[121]

[121]Scales of Justice, paras 159 and 160

There are in addition many more allegations of a similar kind studded throughout the volumes of material that Mr Skrijel and Mr Berthelsen have produced since 1988. They run to hundreds of pages and each of them is said now or at one time or another since 1988 has been said to demonstrate the existence of “the conspiracy”. According to Mr Berthelsen’s recitation of what he and Mr Skrijel perceive to be their effect:

“If there is a common thread to Mr Skrijel’s story it is the incredible effort that seems to be made in all areas and at all costs to discredit Mr Skrijel. There seems little doubt that much of that effort is being made at the present time by the National Crime Authority and its mouthpiece in the Parliament. In the opinion of this writer (scil Mr Berthelsen) the NCA is like an enormous, evil octopus. It has tentacles reaching into the Parliament, the judiciary and into State and Federal law enforcement agencies. It is subverting these institutions and in so doing it is slowly but surely destroying democracy in this country. As Mr Skrijel’s case is not unique, the NCA should be thoroughly investigated and then dismantled.
As the NCA already has the power to subvert a Royal Commission, even before it commences, it is the opinion of this writer that a grand jury is the only effective form of public enquiry which at this point in time has a chance to establish the whole truth – not just in relation to the Skrijel frame-up but the death of Cassandra Ogden, the death of George Octapodellis, the death of David Millard and many other matters which the NCA has attempted to conceal since its illegitimate birth in 1984.”

There are facets of this case left unexplained by the evidence. The most significant of them is that the sawn-off Cooey rifle ended up back in Mr Skrijel’s possession after his Honour Judge Nixon ordered that it be forfeited. Because Mr Skrijel chose not to give evidence, I do not know how he managed to get hold of the weapon again. The Matthews tapes are also something of a mystery. But however that may be, I have not seen any evidence in this proceeding which is capable of establishing these allegations of conspiracy. And quite apart from the lack of evidence, the nature of the allegations makes them utterly improbable. So far as I can see they are baseless.

Conclusion

For the reasons expressed the plaintiff’s claim will be dismissed. There will be judgment for each of the defendants. I shall hear counsel on the form of orders.

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25 July 2003