Skrijel v Mengler

[2003] VSC 59

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

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2003
DATE OF RULING:	4 March 2003
CASE MAY BE CITED AS:	Skrijel v Mengler and ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 59

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Evidence – Ombudsman’s Report – hearsay – not admissible as proof of the truth of its contents.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	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. The plaintiff seeks to tender into evidence a section of the report of the Deputy Ombudsman, Police Complaints, dated 21 February 1997, on the investigation of a complaint made by the Commonwealth Minister for Justice in connection with allegations made by the plaintiff that members of the Victoria Police fabricated evidence against him.

1. The section sought to be tendered begins at the foot of p.138 of the document, corresponding with the foot of p.2419 of Volume 6 of the Court Book, headed "The fingerprint on the gun", and concludes at p.143 of the document, corresponding with p.2424 of Volume 6 of the Court Book, immediately before the sub-heading "7.2 Mr Skrijel's credibility generally".

1. It is submitted on behalf of the plaintiff that what is said by the Ombudsman in this section of the report is admissible as evidence that, before the criminal prosecution which gives rise to this proceeding was commenced, four police fingerprint experts examined photographs of fingerprints said to have been taken from a Cooey rifle and none of them appears to have noticed that one of the photographs was a forgery.

1. Objection is taken to the tender on the grounds that the evidence is hearsay and that it does not come within any of the established exceptions to the rule against hearsay. 

1. In my opinion the objection is well founded.  So much of the contents of the section of the report as states that four experts identified the fingerprint on the fore-end of the rifle as being Mr Skrijel's, and that none of them noticed that the fingerprint was a forgery, is hearsay evidence of those facts.

1. I do not consider that the section of the report comes within the business records exception under the Evidence Act 1958 or the common law public document exception to hearsay, or any other exception that is relevant.

1. Consequently, I reject the tender.

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