Skrijel v Mengler and Ors
[2002] VSC 298
•2 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5446 of 1993
| MEHMED SKRIJEL | Plaintiff |
| v | |
| JOHN CARL MENGLER COMMONWEALTH OF AUSTRALIA GARY WESTERN COOK STATE OF VICTORIA | Defendants |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2002 | |
DATE OF JUDGMENT: | 2 August 2002 | |
CASE MAY BE CITED AS: | Skrijel v Mengler and Ors | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 298 | |
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Practice and procedure – whether questions should be stated under Rule 47.04 for determination before trial of proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Gyles | Basil Nuredini |
| For the First Defendant | Mr R. Redlich, QC | Hardham Dalton & Sundberg |
| For the Second Defendant | Mr B. Walters, SC | Australian Government Solicitor |
| For the Third and Fourth Defendants | Mr J. Santamaria, QC with Mr G.L. Meehan | Victorian Government Solicitor |
HIS HONOUR:
The Proceedings and the Applications
This proceeding was commenced in 1993. Since then, interlocutory matters have consumed time and paper as if neither was of any account. Some of the lamentable history of the proceeding is revealed by the recent judgment in the Court of Appeal on applications by the plaintiff: Skrijel v Mengler and Ors[1].
[1][2002] VSCA 55.
The effect of the judgment in the Court of Appeal is that the plaintiff was confined to pleading a claim in malicious prosecution against the defendants. That claim is set up by an amended statement of claim filed 9 May 2001.
Subsequent to 9 May 1991 the plaintiff was required by all defendants to furnish, and he did furnish, further and better particulars of aspects of the statement of claim. In several instances he was required to provide, and he did provide, further particulars still.
The statement of claim and the further and better particulars were prepared by the plaintiff personally. Despite or perhaps because of his long association with this litigation, his even longer association with the events upon which it is founded, and his longer association again with events which he asserts provide the explanation why he was – as he claims – “framed” for certain offences, the documents are not always clear, although they are certainly lengthy. I bear in mind the fact that the plaintiff is not a lawyer.
There has been discovery.
It might be thought, pleadings and discovery being apparently complete, that the proceeding should be got on for trial without further delay. But no. Summonses have been filed by all defendants seeking determination of certain questions before trial pursuant to r. 47.04 of Chapter 1 of the Rules.
On 14 June I heard argument directed to the limited issue of whether a question or questions ought be stated: and, if yes, then as to the form of each such question and the material upon which it should be determined[2]. The plaintiff, by counsel, opposed recourse to the r. 47.04 procedure.
[2]This course was said to be appropriate by Brooking J, with whose judgment JD Phillips J relevantly expressed general agreement, in Jacobson and ors v Ross and anor [1995] 1 VR 337 at 339 and 361.
To understand the submissions which were made it is necessary to understand this much of the case:
The plaintiff alleges that the first and third defendants were police officers at relevant times, the former seconded to the NCA, the latter working with Victoria Police. So much is not in issue.
The plaintiff next claims that in acting as he alleges they did the first and third defendants were respectively acting in the course of employment by the Commonwealth and the State of Victoria. That is a significant issue as between the plaintiff and the Commonwealth. By reason of a provision of the Police Regulation Amendment Act 1999 the issue is not presently critical as between the plaintiff and the State of Victoria.
The plaintiff claims that two sets of charges were laid against him:
¨ three charges on 15 October 1985 (“the initial charges”); and
¨ four charges between 8 November 1985 – April 1986 (“the further charges”)
Two of the three charges first laid, according to paragraph 6 of the statement of claim, pertained to drugs offences. The third was for a firearms offence.
Two of the four charges second laid, according to paragraph 13 of the statement of claim, concerned drugs offences; one concerned an explosives offence, and one concerned a firearms offence.
According to paragraph 7 of the statement of claim, which deals with the initial charges, the plaintiff was “convicted of the cannabis charge and the firearms charge” at the County Court on 1 April 1997. Paragraph 7 goes on to allege that the plaintiff was sentenced to a $200 fine on the firearms charge, it being also ordered that the firearm be forfeited. No mention is made of a penalty in respect of “the cannabis charge”.
Turning to the further charges, by paragraph 15 of the statement of claim the plaintiff alleges that he was found guilty of the two drugs charges and the explosives charge. By paragraph 16 he pleads that he was sentenced for those three offences to a total effective term of imprisonment of two years, with a non-parole period of nine months.
The plaintiff next pleads that he served his sentence in full. Whether that is so is apparently disputed; but there is no debate that he served some time in prison.
By paragraph 18 of the statement of claim the plaintiff alleges that he:
“successfully appealed against his conviction on the further charges.”
He particularises that allegation in part this way:
“(a)On 6 May 1988 the Court of Criminal Appeal… set aside all the plaintiff’s convictions and ordered a retrial of the charges of which he had been convicted.”
He goes on to say that thereafter the DPP directed the entry of a nolle prosequi in respect of the charges upon which a retrial had been ordered. He positively asserts, I should add, that he was not guilty of any of the offences with which he was charged.
At the heart of the plaintiff’s case are the allegations that:
¨ the first defendant, John Carl Mengler, directed the laying of the initial charges (paragraph 6).
¨ Mr Mengler created false evidence against the plaintiff in connection with the initial charges “wrongly causing the plaintiff to be tried on those initial charges maliciously and without reasonable and probable cause and to be convicted on the cannabis charges” (paragraph 9).
¨ the third defendant, Mr Gary Cook, created false evidence against the plaintiff and “wrongly caused the plaintiff to be tried for the initial charges maliciously and without reasonable and probable cause and to be convicted of the cannabis charge and the firearms charge” (paragraph 10).
¨ Mr Mengler directed the laying of the further charges against the plaintiff (paragraph 13).
¨ Mr Mengler “caused the further charges to be laid maliciously and without reasonable and probable cause and created false evidence against the plaintiff and to be convicted on the further charges” by fabricating evidence.
It is to be noted that the creation/fabrication of evidence alleged against Mr Mengler in respect of the initial charges and the further charges is not identical. It is also to be noted that the statement of claim does not implicate the third and fourth defendants in connection with the further charges.
Rule 47.04 Questions proposed by the Parties
The first defendant, by summons filed 21 September 2001, sought an order that the following questions be set down for hearing pursuant to r. 47.04[3]:
Do the matters alleged in the plaintiff’s pleadings in this proceeding, constituted by the amended statement of claim, the further and better particulars and the documents referred to therein, entitle the plaintiff to contend as a matter of law
¨that the firstnamed defendant was the prosecutor of the criminal proceedings complained of in this proceeding in that the proceedings were instituted or continued by the firstnamed defendant?
¨that if (which is denied) the firstnamed defendant is the prosecutor of the criminal proceedings complained of in this proceeding the firstnamed defendant acted without reasonable or probable cause and with malice?
¨that the criminal proceedings complained of in this proceeding in so far as they relate to the ‘firearms charge’ referred to in the amended statement of claim were terminated in the plaintiff’s favour?
¨to obtain any of the relief claimed in this proceeding from the firstnamed defendant?
[3]I have slightly changed the format of the summons, have omitted questions 2 and 5, which counsel for the first defendant abandoned before me, and have included additional words at the end of question 3 consistently with counsel’s submissions. The questions thus proposed are in substance identical with questions numbered 1-4 set out in counsel's written submission.
Question 6, counsel told me, followed a form used by Harper J in Grimwade v State of Victoria[4]. It was an intended catch-all. It was not intended to raise a question with respect to damages. Counsel agreed that questions (1), (3) and (4) raised the pertinent issues in stark form. In the event, he did not press question (6), which did indeed adapt to the circumstances of this case a question stated by Harper J in Grimwade[5].
[4](1997) Aust Torts Reports 81-422; (1997) 90 A Crim R 526.
[5]Ibid at 64048-64049.
The second defendant, by summons dated 12 October 2001, sought an order that two questions be set down for hearing. Formatted as in the case of the first defendant’s summons, the questions were:
Do the matters alleged in the plaintiff’s pleading in this proceeding, constituted by the amended statement of claim, the further and better particulars and the documents referred to therein entitle the plaintiff to contend as a matter of law
¨ that the Second Defendant is vicariously liable for the conduct of the First Defendant?
¨ that if the First Defendant is the prosecutor of the criminal proceedings complained of in this proceeding (which is denied), the First Defendant instituted or continued the proceedings maliciously on behalf of the Second Defendant?
The third and fourth defendants, by summons dated 5 October 2001, sought an order that this question be set down for hearing:
“Do the matters alleged in paragraphs 10-12 of the plaintiff’s Further Amended Statement of Claim filed pursuant to the Order of Justice Beach made on 9 May 2001, having regard to
(i) the allegations contained in paragraphs 4-8 thereof;
(ii) the plaintiff’s Further and Better Particulars filed 18 June 2001;
(iii)the plaintiff’s Supplementary Further and Better Particulars filed 20 August 2001;
and the documents referred to therein, entitle the plaintiff to obtain any of the relief claimed in this proceeding against the third and/or fourthnamed defendants”?
Counsel for the plaintiff opposed the making of any orders under r. 47.04. He submitted, inter alia, that it was inappropriate to have questions raised and answered in isolation because of “difficulty in establishing facts when one is dealing with allegations of motive and intention”[6]. If, however, the court rejected that submission then, counsel submitted, the following questions should also to be set down for determination before trial:
[6]T.16.
“Question 1
If the First Defendant created false evidence against the Plaintiff by virtue of doing or causing to be done any one or more of the acts alleged in sub-paragraphs (i) to (x) of paragraph 9 of the Statement of Claim amended pursuant to the Order of Justice Beach made on 9 May 2001, has the Plaintiff established that the First Defendant wrongly caused or contributed to the Plaintiff being tried on the initial charges –
(a) maliciously;
(b) and without reasonable and probable cause;
(c) and to be convicted?
Question 2
If the Third Defendant created false evidence against the Plaintiff by virtue of doing or causing to be done any one or more of the acts alleged in sub-paragraphs (a) to (c) of paragraph 10 of the Statement of Claim amended pursuant to the Order of Justice Beach made on 9 May 2001, has the Plaintiff established that the Third Defendant wrongly caused or contributed to the Plaintiff being tried on the initial charges –
(a) maliciously;
(b) and without reasonable and probable cause;
(c) and to be convicted?”
Resolution of the Applications
What were before me were applications that questions be stated for determination before the trial of the proceeding; not the hearing and determination of those questions. In submissions for the defendants, emphasis was laid upon the propriety of the questions, the easy identification of the material upon which they could be decided, their facility for producing answers which would finally determine the litigation or discrete parts of it, and their potential in consequence of producing substantial savings in time and cost.
It would certainly be desirable, if it was possible, to substantially shorten what seems destined to be a very long trial – that is, if the plaintiff was permitted to raise at trial the many issues which the papers show he wishes to raise.[7] It is the case that favourable answers to the proposed questions would in some instances finally resolve the proceeding and in other instances finally resolve discrete parts of the proceeding in favour of particular defendants. I next acknowledge that the proposed questions in each instance are clear; and that on their face they identify the facts and the means of ascertaining the facts which would be necessary for their resolution. As the questions are framed, the court is asked to assume the truth of matters alleged in the statement of claim, and further particulars and incorporated documents; and the particular defendant contends that, even so, the plaintiff must fail. The matters so assumed, the defendant says, could not make out some constituent part of the cause of action.
[7]An estimate on the Defendants' side was 4-6 weeks. The plaintiff's estimate was 3 weeks.
Notwithstanding the considerations to which I have just referred I am not persuaded that any of the proposed questions should be stated for determination before trial. The following matters are pertinent, though not all of them apply in the case of each question: First, the court is asked to assume, in substance, that two sets of charges were laid and ultimately resolved in favour of the plaintiff. That is the import of the statement of claim and further particulars. There is the greatest doubt, however, whether the assumption which the court is asked to make represents the fact. Documents to which I was referred in argument strongly suggest that informations were initially laid alleging certain drugs offences and a firearms offence; but that, after committal, a presentment was filed in which the drugs offences initially alleged were replaced by more charges serious. It was the latter offences, it seems very likely, upon which the plaintiff was tried, for the most part convicted, and successfully appealed; and in respect of which notice of nolle prosequi was eventually given.[8] Yet no party, whatever be the reason, sought to agitate the question whether the situation which I have described as very likely was the fact or not.
[8]In describing the probable situation I have not referred to the firearms offence with which the plaintiff was initially charged. It was, it seems, dealt with summarily at the same time as the trial of the major offences.
I am loath to conclude that there should be a trial of questions upon an assumed state of facts which was very likely to be misconceived. I was attracted in the course of argument to the view that questions as to what charges were pursued against the plaintiff to conviction, and what charges were the subject of successful appeal and the giving of a nolle prosequi were apt for determination by order under r. 47.04. It seemed to me probable that those questions could be determined by reference to documents of no large volume: the Magistrates’ Court record, the presentment, the sentencing remarks of the learned trial judge, the Notice of Appeal, the Order and Reasons of the Court of Criminal Appeal, correspondence between the Registrar of the Court of Criminal Appeal and the sentencing judge, and perhaps also documents in the file of the State Director of Public Prosecutions. But with the possible exception of counsel for the plaintiff – who opposed generally the making of an order under r. 47.04 – no counsel spoke plainly in favour of an order framing the questions to which I referred a moment ago. I do not consider it right, in those circumstances, to impose such questions on the parties.
Second, I will accept for purposes of argument the proposition that simply because a plaintiff pleads each of the elements of the tort of malicious prosecution it does not necessarily follow that he ought be allowed to proceed; and that pleadings should incorporate by way of particulars an outline of the relevant factual material upon which the plaintiff will rely – paraphrasing the Reasons of Harper J in Grimwade[9]. There the plaintiff made bald allegations unsupported by relevant particulars. Here, to the contrary, the plaintiff provided further and better particulars; and sometimes still further particulars. The particulars were obviously of variable quality. There would be room to argue, in some cases at least, that they could not support a particular allegation raised by the statement of claim. That said, it is apparent that in many instances the plaintiff will rely upon inferential reasoning. So, for example, asked by the first defendant for further particulars of the allegation that he, the first defendant, “directed the laying of (the initial) charges”, the plaintiff replied, by paragraph 1 of particulars dated 18 June 2001:
“The first defendant was in charge of operations on the day of my arrest. Prior to the laying of charges against me, he consulted NCA lawyer Rick McDonnell. He then directed Sergeant Mark Carmady, then at the Casterton police station, by telephone, as to the charges that were to be brought against me.”
[9]Ibid at 64054-64056.
Then, by additional particulars dated 11 July 2001, he supplemented that answer as follows:
“1.I was (sic) during the telephone conversation. The conversation took place at the Casterton police station.
2.I am unable to repeat the conversation. I do recall that Sergeant Carmady was discussing the charges and then confirmed the charges and subsequently charged me with the offences he had confirmed.
3.I made no record of the conversation.
4.I rely upon Sergeant Carmady’s statement sworn 2 April 1986, the first defendant’s letter dated 16 July 1993 on a Queensland Justice Commission letter head to Mr John Buxton, National Crime Authority, and the entry for 15 October 1985 in the document described by the first defendant as his diary.”
Let me give another example. By paragraph 9 of the statement of claim the plaintiff alleges that the first defendant created false evidence against him on the initial charges, thus wrongly causing him to be tried on those charges maliciously and without reasonable and probable cause. One element of the tort of malicious prosecution is that the defendant acted without reasonable and probable cause. A prosecutor will so act if, inter alia, he has no actual belief in the guilt of the defendant. Clearly the plaintiff will seek to argue that it must be inferred that the first defendant had no actual belief in the guilt of the plaintiff because it was he, the first defendant, who manufactured false evidence upon which the prosecution was based. A question arises as to what facts could support the allegation that the defendant created the false evidence. That question was the subject of a request for further and better particulars – see paragraphs 2-12 of the first defendant’s request dated 16 May 2001. The plaintiff's particulars dated 18 June 2001 show his reliance upon inferential reasoning. See, for example, paragraphs 8-11 and paragraph 12 of the particulars in combination.
The statement of claim and the particulars not only show that the plaintiff relies upon inferential reasoning, they show that in one instance at least he relies upon the falsity of a document to which he refers. See, paragraph 9(x) of the statement of claim and paragraphs 22-26 of the particulars dated 18 June 2001.
Summarising, this is not a case where the plaintiff has not particularised his allegations. Further, by his statement of claim and particulars he has made it clear that he relies on inferential reasoning and upon the falsity of at least one of the documents to which he refers.
It was submitted for the first defendant that a particular inference which the plaintiff seeks to have drawn would be no more than speculation[10]. I take it that a like submission was implicitly made for the other defendants insofar as the plaintiff relies upon inferential reasoning to support his case against them. I consider that there was force to the submission made both explicitly and implicitly. But the plaintiff’s reliance upon inference means that the court could not resolve most of the proposed questions simply upon assumed facts. This is at odds with the questions as framed.
[10]T.33.
Third, it is a corollary of the point just made, I doubt – particularly in a case where the plaintiff is entitled to and has sought trial by jury – that the court should reserve for consideration by a judge sitting alone the determination of questions the answers to which appear to depend not simply upon assumed facts but upon whether inferences are available, and what those inferences should be. It was not in contemplation during argument, I add, that the trial of any questions stated under r. 47.04 should be other than by judge sitting alone.
The language of r. 47.04 is different to the language of O. 36 r. 8 of the former Rules. The language of r. 47.02(1) may be compared with the language of the former O. 36 r. 6. The conclusion reached by the Full Court in Verwayen v Commonwealth[11] seems not to be transferable to the present Rules[12]. However, I consider that where a plaintiff is entitled to and has sought trial by jury the court should be chary of reserving a question under r. 47.04 which will require factual determination in some measure. A fortiori that seems to me to be so where the determination will or may involve recourse to inferential reasoning, something very well-suited to the commonsense of the jury.
[11][1988] VR 203 at 205-206.
[12]See Verwayen v Commonwealth (No 2) [1989] VR 712 at 716-717 per Kaye and Marks JJ.
Fourth, I consider that the course of the proceeding thus far cannot be ignored. It has been pathetically slow. I do not doubt that much of the problem lies in the plaintiff’s camp. The plaintiff is evidently determined to have justice, as he sees it, this involving the examination of a constellation of events which occurred long ago. There now being a statement of claim to which the plaintiff is committed, further and better particulars, and there having been discovery, it seems to me that there is strong reason to get this matter on for trial. There, issues of admissibility can be resolved; and at the end of the plaintiff’s case, with whatever evidence the plaintiff has been permitted to adduce having been laid out, it will be possible to deal with any no case submission in a concrete setting. The decision of the High Court in Naxakis v Western General Hospital[13], it may be added, does not preclude the success in a jury trial of a no case submission founded upon a pure question of law, or upon a complete absence of evidence.
[13](1999) 197 CLR 269.
It is obvious, even if rulings on admissibility at trial were adverse to the plaintiff, that a trial will occupy substantially more time than would be taken up by hearing and determination of the proposed questions. That said, it is impossible to believe that answers, at least if unfavourable to the plaintiff, would not generate an appeal.[14] The fate of any appeal cannot now be predicted. The potential for this proceeding to string out for years yet, without trial but with the prospect that a trial may in the end be required, cannot be ignored. All the while, of course, memories are likely to fade; and there must be the risk, as time goes by, that a party or witness will die.
[14]Perhaps a decision to state questions might itself generate an appeal.
In the event, I consider, whatever conclusion might have been reached upon applications of the kind now before me if made long ago, that the passage of time is a factor tending against the success of the present applications.
Fifth, it is not particularly satisfactory, I think, for the court to be asked to assume the truth of matters pleaded and particularised in circumstances where the assumption only holds good if questions to be determined on the basis of the assumed facts are answered in one way. This was not the exact problem to which JD Phillips J referred in Jacobson and others v Ross and anor[15] for there answers would not have finally disposed of the litigation. But the two situations are not wholly different. The unsatisfactory nature of the proposed exercise, I should add, was emphasised by the submission of senior counsel for the first defendant that many of the matters relied upon by the plaintiff “can't have any probative value”[16].
[15][1995] 1 VR 337 at 360-361.
[16]T.14. See also the submissions of senior counsel for the second defendant at T.52-55.
Sixth, although the proposed questions in every case ask the court to assume the truth of matters pleaded, particularised or contained in incorporated documents, counsel for the first and second defendants indicated that this assumption was not to be unconfined. So, senior counsel for the first defendant referred to “one significant exception”[17]; whilst senior counsel for the second defendant intimated that he would seek to distinguish between bodies of evidence relied upon by the plaintiff and “specific facts”[18]. It seems to me that there was, in truth, some doubt just what it was that a judge would be asked to assume in resolving some at least of the proposed questions.
[17]T.20.
[18]T.52-55.
I should say something about the individual questions proposed by the defendants. I begin with the questions set out in the first defendant’s summons filed 21 September 2001. Considerations to which I have adverted make it inappropriate to state the questions numbered (1) and (3). Questions (2) and (5) were abandoned. Question (6), the intended catch-all, was not pressed. That leaves question (4). It seems likely that the answer to that question could be ascertained by analysis of relatively few documents. On the other hand, the plaintiff apparently alleges that the court record is in some way erroneous[19]. I doubt that the preparation for or the length of the trial could be significantly affected by the plaintiff’s allegations with respect to the firearms charge. In all the circumstances, I should not order that question (4) be stated.
[19]T.3.
I go to the questions framed by the second defendant’s summons filed 12 October 2001. According to the submissions of senior counsel for the Commonwealth the questions were intended to enable argument:
¨ that the plaintiff had not made it appear how the Commonwealth, as distinct from the NCA, could be vicariously liable for the conduct of the first defendant. The plaintiff alleges only that the first defendant was seconded to the NCA at a relevant time[20] and that he relevantly acted in his capacity as a servant or agent of the Commonwealth and within the scope of authority conferred by the Commonwealth upon him[21]. No point of connection is alleged between the NCA and the Commonwealth;
¨ that if the first defendant instituted or continued the proceedings maliciously, he did not do so on behalf of the second defendant. Here, reliance would be placed upon provisions of the National Crime Authority Act 1984 (Cth) which specify the functions which may be performed by seconded officers. Those functions do not include, counsel said, the institution of criminal proceedings[22];
¨ that the first defendant could not have instituted or continued proceedings against the plaintiff on behalf of the Commonwealth because, according to common law principles, he could not be in a master/servant relationship with the Commonwealth[23]
[20]Statement of claim, para 2(a)(b).
[21]Statement of claim, paras 2(c)(d), 11 and 20.
[22]Or, understandably, the fabrication of evidence.
[23]Counsel referred to Enever v The King (1906) 3 CLR 969.
I have considerable sympathy for the second defendant’s position. It is possible that the principle enunciated in Enever could provide a complete answer to the plaintiff’s claim. There is also room for argument that the plaintiff has not pleaded a connection between the NCA and the Commonwealth; and that the plaintiff’s further particulars dated 19 June 2001 do not make that connection good. It may further be said that paragraphs 3 and 4 of the further particulars, purportedly dealing with the scope of the alleged authority, and the circumstances of its conferral, are distinctly unhelpful. Further again, it may be the case that the National Crime Authority Act has a limiting effect upon the scope of the alleged authority.
The matters to which I have referred provide reason why the second defendant should succeed in its application. But there are countervailing considerations, which on balance have led me to conclude that neither question proposed by the second defendant should be stated. First, the proposed questions are framed upon the assumption, which I doubt, that there were initial and later charges brought and determined against the plaintiff, against all of which he later successfully appealed. Second, although the second defendant seeks to have its questions resolved upon the matters alleged by the statement of claim, the further particulars and incorporated documents, that concession was confined in argument. A number of the further particulars pertaining to the plaintiff’s allegation that the first defendant fabricated evidence in his capacity as a servant or agent of the second defendant, and within the scope of his authority, call in a large body of material. See, for example, paragraphs 13 and 14 of the further particulars. Plain it is that on the hearing of questions stated under r. 47.04 issues would arise about what should be assumed and what should not. Third, insofar as matters should be assumed, the issue of inferential reasoning to which I earlier referred would arise. Fourth, it would create a hopeless impasse if the court was to state and then to determine questions dealing with the position of one or some only of the defendants. Depending on the answers given, an appeal might eventuate. Meanwhile the trial could not go ahead. Fifth, it is at least possible that the application of Enever could not be divorced from the facts of the matter. The law has not in any event stood still in recognising in more recent times the existence of a master/servant relationship where none had been discerned in the past. Sixth, it seems to me at the least arguable that whether an act was done in the course of and within the scope of authority must depend upon all relevant facts – the provisions of the National Crime Authority Act being one element only of those facts.
I go finally to the question framed by paragraph 1 of the summons of the third and fourth defendants filed 5 October 2001. I say nothing about paragraph 2 of that summons. It was not pressed in argument[24].
[24]See T.67.
Senior counsel for the third and fourth defendants raised two arguments in support of the question being stated. First, according to the statement of claim those defendants are only said to be responsible in respect of the initial charges; and the statement of claim does not allege that those charges were terminated in favour of the plaintiff. Second, the plaintiff’s case against the third defendant (and thus the fourth defendant) must fail because, assuming the truth of the matters alleged by the plaintiff, they could not yield a conclusion that the third defendant falsified the fingerprinting evidence[25]. In that connection counsel referred to paragraph 10 of the statement of claim, paragraph 3 of the third and fourth defendant’s request for further and better particulars dated 16 May 2001, paragraphs 8 and 9 of the plaintiff’s further particulars dated 19 June 2001, and paragraph 5 of additional further particulars dated 4 September 2001. He submitted, in substance, that paragraph 10 of the statement of claim was not augmented by the further particulars; and that the matters there alleged could not make out the plaintiff’s case against the third defendant, and thus against the fourth defendant.
[25]See T.68.
In concluding that I should not state the question framed by the third and fourth defendants, it appears to me that a number of the general considerations which I earlier set out are pertinent. I add the following: first, counsel’s initial argument flirted with but did not take up the likely factual problem with the plaintiff’s distinction between initial and later charges. Second, whilst there was substance to counsel’s submission that the two sets of particulars add nothing to paragraph 10 of the statement of claim, it does not follow that paragraph 10 does not sufficiently set up the plaintiff’s case against the third defendant. Arguably, I think, paragraph 10(a) sets out the steps in the alleged falsification of evidence by the third defendant. How the plaintiff will prove that the third defendant took those steps must be a matter of evidence, very likely depending upon inference. Third, as with the second defendant it would create a hopeless situation if questions were stated in the case of some but not all defendants.
Conclusion
Each of the summonses filed on behalf of the defendants must be dismissed. Further, I will not state the questions which counsel for the plaintiff informally proposed. Beyond that, steps to get this proceeding on for trial must be completed as a matter of urgency. That will desirably take place in the setting that a date has been fixed for trial. Subject to anything that counsel may wish to submit I consider that I should order that the proceeding be referred to the Listing Master for fixing a trial date and for the making of any interlocutory orders which may be required.
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