Skrijel v Mengler

[2003] VSC 130

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
v
JOHN CARL MENGLER	Firstnamed Defendant
COMMONWEALTH OF AUSTRALIA	Secondnamed Defendant
GARY WESTON COOK	Thirdnamed Defendant
STATE OF VICTORIA	Fourthnamed Defendant

---

JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2003
DATE OF RULING:	16 April 2003
CASE MAY BE CITED AS:	Skrijel v Mengler & Ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 130

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Skrijel in person
For the Firstnamed Defendant	Mr M. Tovey QC with Mr P. Marzella	Hardham Dalton & Sunberg
For the Secondnamed Defendant	Mr B. Walters SC with Mr K. Mueller	Australian Government Solicitors
For the Thirdnamed Defendant	Mr J. Santamaria QC with Mr M. Gindberg	Victorian Government Solicitors
For the Fourthnamed Defendant	Mr R. Gipp	Ebsworth & Ebsworth

HIS HONOUR:

1. By subpoena for production dated 25 February 2003, the plaintiff seeks that the second defendant produce to the court documents in its possession or power relating to the National Crime Authority's white Falcon utility registration number RBL 823 (which is referred to in the plaintiff's letter concerning burglary and trespass as faxed to the National Crime Authority on 27 November 1995, and in the National Crime Authority's letter dated 11 January 1996 to Assistant Commissioner Brown, Victoria Police Internal Investigations) including all records, vehicle log book, diaries and day books of seconded Victoria police officers of the National Crime Authority's surveillance unit using the vehicle.

1. When the subpoena was first called on on 3 March 2003, the second defendant opposed the production of the documents on the basis that it was not demonstrated that there was a legitimate forensic purpose for production.

1. After hearing argument from senior counsel for the second defendant and from the plaintiff in person, I ruled on 3 March 2003 that I did not consider that it had yet been made out that there was a legitimate forensic basis for production of the documents, or more precisely, that it had not been made apparent that the documents related to a matter in issue or might lead upon a path of inquiry which would enable the plaintiff to advance his own case or impeach the case of the second defendant.

1. The call for the production of the documents has been renewed following cross-examination of the plaintiff's witness, David Berthelsen, about allegations made by the plaintiff that he used a voice activated tape recording machine to record voices of persons believed to have planted a shortened Cooey rifle in the ceiling of the plaintiff's Digby home in 1992.

1. Counsel for the first defendant also points out to me that it is alleged in the plaintiff's further and better particulars dated 6 August 1999 in paragraph 14(w) that in or about November 1992 the first defendant directed or caused the Cooey rifle to be planted on the plaintiff's premises at Digby.

1. In these circumstances it appears to me that there has now been made out a legitimate forensic basis for requiring production of the documents.  The allegation made in paragraph 14(w) of the further and better particulars, as now elucidated by the cross-examination on the subject of the voice activated tape recorder, shows that the alleged planting of the Cooey rifle on the plaintiff's premises in 1992, is truly a matter in issue.  In my opinion the documents which are sought relate to that matter, either directly or by reason that they could conceivably lead the plaintiff upon a path of inquiry enabling him to advance his own case on that issue or to impeach the cases of the parties ranged against him.

1. In those circumstances I propose to order that the documents which are referred to in para 3 of the schedule to the subpoena of 25 February 2003 directed to the second defendant be produced to the Court.

---