3 At the material times, Inspector Robbins was an officer of the Internal Affairs Unit ("IAU") in the Western Australian Police Force and he had been assigned by his superiors to investigate allegations against other police officers, including the plaintiff, arising out of their involvement in what became known as the "Argyle diamond affair". Senior Sergeant Noye, as he then was, was a detective who had earlier been assigned to conduct the second of three phases of investigations into alleged diamond thefts from the Argyle Diamond Mines Pty Ltd ("Argyle") diamond operation in the Kimberley region of Western Australia. This was a long running and contentious investigation which had given rise to, and as it developed gave further rise to, intense differences of opinion, rivalries, and mutual suspicions by officers of the Western Australian Police Force who had been involved. This led to allegations of corruption by some officers against, not only Sergeant Noye, but also against many other officers, including officers senior to Noye.

4 The conduct of the police investigation was, to say the least, unusual and was regarded as inadequate and unsatisfactory by the senior security personnel of Argyle who, throughout the proceedings, attempted to conduct their own parallel investigations. This process led to resentment arising between the police officers conducting the investigations and their superiors on the one hand, and the senior personnel of Argyle on the other. The course of the investigation very quickly led to suspicions being entertained that one Lindsay Gordon Roddan was the major architect of the alleged thefts and that he had corrupted and drawn into the criminal activity a former security officer at the Argyle diamond mine, one Barry Anthony Crimmins, the estranged and then former husband of the defendant in the second action, Lynette Beryl Crimmins.

5 Nevertheless, extensive investigations conducted by the police failed to prove that there had actually been thefts of diamonds from the Argyle mine or that Roddan or Barry Crimmins were involved in any associated illegal activity. No fewer than three separate police investigations into the allegations were conducted over the space of more than three years. The first two of these operations were inconclusive. The first can conveniently be termed the "Thoy/Gwilliam inquiry" because it was Detective Senior Sergeant Robin Martin Thoy and Detective Sergeant Edward Clayton Gwilliam who led the investigation. It produced no reliable evidence of either theft or of the identity of offenders but it is possible to say that Sergeants Thoy and Gwilliam harboured a deep and intuitive belief that Roddan was involved in criminal activity concerning the Argyle diamond mine. Both were very much in favour of continuing the investigation despite the reluctance of their superior officers to do so after the first Thoy/Gwilliam report.

6 The second stage of the inquiry resulted from repeated representations and pressure from the senior officers at Argyle to the WA Police Force. Consequently, Sergeant Noye was appointed to work with Sergeant Gwilliam to undertake a revised and new inquiry, with Roddan and Barry Crimmins identified as major suspects. It was not long before Sergeant Gwilliam quarrelled with Sergeant Noye essentially, it appears, because he believed that Noye was not conducting the inquiry aggressively enough or putting sufficient pressure on Roddan or Crimmins notwithstanding that, to that point, there was really no conclusive evidence to implicate either of them in the alleged thefts. From this time on Sergeant Gwilliam became an irreconcilable critic of Sergeant Noye and voiced his criticisms repeatedly to superiors in the Police Force, to other officers and, later, I am satisfied, by leaking details of the investigation to the press. He drew inferences that Sergeant Noye was going soft on Roddan and Crimmins, was failing to conduct a proper investigation, and was disposed to write-off the inquiry for the corrupt motive of clearing Roddan.

7 Gwilliam leapt at later suggestions that Noye was acting corruptly and was being, or expected to be, paid by Roddan for producing a report to write-off the inquiry. He did not keep these suspicions to himself but voiced them loudly to his superiors and to others in the Police Force to such a degree that factions developed. Any who questioned the sufficiency of evidence of corrupt conduct or the malicious influences of Roddan were themselves accused of being involved in the corruption. Those accusations did not stop at the activities of Detective Sergeant Noye and were advanced against senior inspectors and superintendents as well.

8 It seems that nothing could be done within the Police Force to quell these oft repeated allegations of corruption. Sergeant Gwilliam's allegations evidently gained a measure of attention. This made it very difficult for Sergeant Noye and the other officers supervising the investigations into the alleged theft of diamonds from the Argyle mine to pursue their investigation without recriminations. The problem was exacerbated by a lack of resources to extend the inquiry to degrees which appeared to be obviously necessary - such as to visit Victoria to interview Barry Crimmins, one of the suspects, or to pursue scientific tests in the hope of establishing that certain diamonds which had been seized by the police, and which were believed to have been stolen, were actually Argyle diamond stones.

9 It was in this atmosphere of internal bickering, accusation and counter-accusation, and the refusal of Sergeant Gwilliam to participate in the Noye investigation that Sergeant Noye came to prepare his final report. This lengthy document (Exhibit 3) essentially concluded that there was no evidence against either Crimmins or Roddan to implicate them in the alleged thefts; that it could not be proved that the diamonds which had been seized were in fact sourced from the Argyle diamond mine; and, that in the circumstances no further police action should be taken. Sergeant Noye submitted that report to his superior, Assistant Commissioner (Crime) Leslie Donald Ayton, (who had recently been promoted from the role of Inspector and was later, in 1995, to rise to the position of Deputy Commissioner) who conducted a preliminary evaluation of it. He and his deputy did not seem, at least at that stage, to be disposed to query either the investigation or the recommendations.

10 Shortly afterwards, however, in January 1993 everything changed. Lynette Crimmins, after being involved in a series of acrimonious and violent altercations with Roddan, which led to her arrest, made complaints and statements to the effect that her husband, Barry Crimmins, had been organising a programme of thefts of diamonds at the Argyle diamond mine, and had supplied these diamonds to Roddan who, in turn, arranged for their illegal sale and disposition. She alleged that Roddan had boasted to her of his involvement in this process; that her husband, to her knowledge, had been involved in the thefts; that Roddan had also boasted that the police investigation would go nowhere because he had Sergeant Noye "in his pocket"; and, that Noye was to be paid $200,000 from the proceeds of the thefts.

11 Lynette Crimmins was not without her own personal animosities. Her marriage to Barry Crimmins had broken down, she had turned to prostitution, and, in addition, she had developed a relationship with Roddan which went as far as her advancing very large amounts of money to him as loans. Roddan appears to have treated Lynette Crimmins badly and had refused to repay the money which she had lent to him. He exploited his relationship with her ruthlessly. When Lynette Crimmins eventually realised how far Roddan had betrayed her she became very angry, got very drunk and went to his house to confront him. A violent altercation broke out resulting in her being injured. She left the house only to return again in the small hours of the morning, when a second disturbance then resulted in the local police being called and Lynette Crimmins being arrested. It was after this incident that she made her accusations against Roddan, Barry Crimmins and, later, Detective Sergeant Noye.

12 There was also a degree of consternation at the senior command levels of the Police Force because, despite Lynette Crimmins' allegations, there was still no clear and reliable evidence against Roddan or Barry Crimmins, or for that matter against Noye. Apart from the hearsay nature of the information which Lynette Crimmins had supplied, she was undoubtedly animated by extreme hostility towards Roddan. Her behaviour, her lifestyle, her conduct, which at times was near hysterical, and her dubious character made it apparent that her own evidence and allegations would not prove very strong or reliable. Despite all her mixed motives and hostilities, her allegations might nevertheless be true.

13 The response of the senior command of the Police Force to this new development has itself been criticised as being responsible for further mistakes and problems. It will need to be examined more closely but, for the present, a brief description will be sufficient. Because of the pressures caused by past factions within the Police Force and due to the industrial policy pursued by the Police Union that, the IAU should not be involved in the investigation of inquiries into general crime, as distinct from scrutinising allegations against named or identifiable police officers, a third investigation into the alleged diamond theft from the Argyle diamond mine was established. This was headed up by Detective Inspector Peter Frederick Lavender. His principal assistant was Sergeant Gwilliam who, by then, was an implacable critic of Sergeant Noye and was convinced in his own mind that Noye was corruptly involved with Roddan and Barry Crimmins. His appointment to such a sensitive role seems most inappropriate, having regard to the knowledge of his attitude and methods which existed at that time, but more so in the light of subsequent events and his conduct of the investigations. Although Inspector Lavender was nominally in charge it is clear that most of the initiatives and actions were instituted and directed by Gwilliam. His conduct of the investigation later proved to be impetuous; disruptive of other parallel investigations (yet to be mentioned); and, was associated with much intrigue, including the repeated leaking of information to the press which had the effect of blackening the reputation of Noye eventually beyond recall. Gwilliam was repeatedly counselled by more senior police officers to moderate his behaviour. However, he was impervious to any suggestions of restraint and later, in circumstances which yet need to be put in their full context, gave evidence in the Magistrates Court which led to him, Gwilliam, being charged with perjury.

14 The second response from the senior command level of the Police Force to the allegations of corruption advanced by Lynette Crimmins was to establish a separate internal review task force led by Inspector Robbins, (the defendant in the first action) and Inspector Syme, but supervised by Superintendent Allan Watson, to investigate and review the allegations against Detective Sergeant Noye who was, from that time on, taken off the case.

15 The investigations conducted by Inspector Robbins were extensive and lengthy. There were interviews which he conducted with Sergeant Noye. He also had a series of interviews with Lynette Crimmins. He reviewed the reports of the first investigation, the Thoy/Gwilliam inquiry, and of the second investigation, which was reported upon by Sergeant Noye (after Gwilliam had walked out of the inquiry). He also reviewed all the records relating to the investigations of the allegations of the theft of diamonds from the Argyle mine.

16 Although this is an interruption to the sequence of progress it is nevertheless timely to identify the shortcomings which had been found in the allegations that diamonds had actually been stolen from the Argyle mine. The security authorities at Argyle had formed the view that pink diamonds, which almost certainly came from the Argyle mine, but could not be sourced to the production, processing and sale streams of the mine output, were being sold in diamond centres around the world. Some jewellers in Antwerp, New York and Perth were thought to be selling diamonds sourced from Argyle but not via the proper channels. This led to complaints resulting in a police raid on a jeweller in Fremantle, Noel Norman Newton, and the discovery of a significant quantity of pink diamonds ("the Newton diamonds") which that jeweller was holding on consignment for Lindsay Roddan. Roddan, however, denied that they were diamonds from Argyle. He asserted that he had purchased them from a diamond house in Antwerp, Belgium, via a Theodore Horovitz of Geneva, and he produced invoices, consignment notes and other documents which appeared to show that these diamonds had, in fact, been imported as claimed. Some perfunctory attempts were made to communicate with Horovitz in Geneva but it was, at that time, beyond the resources of the police to travel to Switzerland to conduct an investigation and, for some reason or other, no effort was made to enlist the assistance of the Swiss police. The case assiduously advanced by the Argyle security officers, Corfield and Burton, was that these were diamonds which had been stolen from their company and that sophisticated forensic scientific tests revealed features of the diamonds, and traces of the residual ore which still adhered to them, demonstrating that they indeed came from Argyle. A series of scientific tests had been conducted and reports prepared but these were inconclusive. So the question of the source, and hence the ownership, of the diamonds could not be put beyond dispute.

17 The Newton diamonds remained in the possession of the police until their ownership could be satisfactorily established. Roddan maintained his claim to the ownership of the diamonds, as did Argyle. Consequently, interpleader proceedings were commenced in the District Court by the police in order to provide a means for the dispute over the ownership of the gems to be resolved. Argyle had its own legal representatives acting in those proceedings. Roddan also had his own legal representatives. The Police Force, as the interpleader, effectively played a neutral role, hoping and expecting that these proceedings would lead to a definite conclusion as to the source and ownership of the diamonds. If this were adverse to Roddan, that would provide the hitherto missing evidence that Roddan had unlawful possession of diamonds which, on that hypothesis, had been obtained from Argyle illicitly.

18 The problem was, however, that there was virtually no progress being made in the interpleader proceedings. Argyle seemed to have adopted the position that further police investigation would reveal other evidence implicating Roddan in the theft of these and other gems and that, if this occurred, that would resolve both the criminal investigation and the interpleader proceedings. Argyle otherwise did not seem disposed to take any initiative to force the interpleader proceedings to a hearing or determination. On the other hand, the police, by this time effectively Sergeant Noye, who did not have other support or resources available to him, took the view that it was unlikely that the criminal investigation would achieve much progress unless and until the interpleader proceedings had been resolved. As a consequence, Noye sought to encourage those whom he might be able to influence to proceed with the interpleader. Noye's influence was, however, restricted to Roddan because the Argyle security officers were not sympathetic to Noye, taking Gwilliam's side on almost all aspects of the factional disputes. This led Noye into meeting with Roddan in attempts to facilitate the progress of the interpleader. These meetings between Sergeant Noye and Roddan, ostensibly about the interpleader, were most ill-advised and indiscreet on Noye's part and strengthened the belief that inspired Gwilliam and others to suspect that Noye was acting improperly and had a corrupt association with Roddan.

19 In the events which happened the interpleader proceedings were not determined and, so I was informed during the course of evidence in this case, still remained pending in the District Court. However, Roddan exploited these meetings with Noye by enquiring about the progress of the case, the nature and strength of the scientific evidence about the source of the seized diamonds. Accordingly, this allowed Roddan to gauge the strength of the case against him. He maintained his denials and appears to have been confident that neither the police nor Argyle would be able to succeed in proving that the seized diamonds had indeed come from Argyle.

20 This long trail of evidence and investigations concerning the source of the seized diamonds, and disputes over their ownership, were all materials which were examined by Inspector Robbins and his assistants during the course of his investigation into the allegations of corrupt conduct against Noye.

21 The next major breakthrough came in April 1993 when Inspector Robbins, in company with an officer of the Victorian Police Force, visited Barry Crimmins, who was then living and working in Shepparton in Victoria. At the time of this interview Barry Crimmins made no actual admissions, but he appears to have been shaken. The meeting concluded on the footing that Crimmins would think about his position. His reaction led Inspector Robbins to conclude that he may be close to a breakthrough. Further, certain observations which Barry Crimmins made during the course of that interview caused Inspector Robbins to entertain more serious suspicions of Sergeant Noye. In particular, Crimmins told Robbins that on about 19 November 1992 Noye had visited him in Shepparton, had spoken in a round-about way about the Argyle diamond investigation, and, after ingratiating himself with Crimmins, stayed at his home that night. Barry Crimmins, himself a former Victorian police officer, was very suspicious of Noye's conduct. Having been told by his wife, Lynette Crimmins, that Roddan boasted of having Noye "on side" and on his payroll, he came to the conclusion that Noye was in Shepparton to cover his tracks and to provide a whitewash which would justify his conclusion to write-off the investigation and the report which, by then, Noye had submitted to his superiors.

22 There is clearly a gap in the evidence of what transpired in these dual police investigations. I have no doubt in concluding that I have not heard the full story of exactly what happened and the events which led to the next breakthrough. In what appears to be the result of initiatives taken by Detective Sergeant Gwilliam and the security officers from Argyle, Barry Crimmins agreed to be interviewed by the police on 29 August 1993 in Kununurra - the town nearest to the Argyle mine. The explanation for this, so far as was given in these proceedings, was that Crimmins had worried about his position following the approach from Inspector Robbins in Shepparton. He had reached the conclusion that, before long, his role in the events would be discovered and therefore it would be preferable for him to co-operate with the authorities. He was also due to come to Western Australia to attend his daughter's twenty-first birthday and a deal of some kind was plainly struck which would allow him to come to Western Australia, be interviewed by Sergeant Gwilliam and others at Kununurra and then, regardless of the outcome, attend his daughter's twenty-first birthday party before any charges might be laid against him.

23 The detail of exactly what inducements were held out to Crimmins, and what role Gwilliam took in this, has not been disclosed but I have no doubt that a variety of incentives was given. It has not been possible to identify or to determine anything further than this because none of Gwilliam, Barry Crimmins, or any of the security personnel at Argyle was called as a witness at this trial. However, it appears that Richard William Corfield and John Sebastian Burton, Argyle's manager of security and superintendent of security respectively, were instrumental in the continuing investigations and to have supported Gwilliam and his initiatives throughout.

24 For reasons which will emerge, it is entirely understandable why no person sought to call Gwilliam as a witness because, as has already been indicated and as will appear more fully later, his objectivity throughout these events has been called into serious question. Barry Crimmins, who might have been expected to support the defendant's cases, has not been called. As a person subsequently convicted, on his admission, of thefts of diamonds from Argyle it can probably be concluded that if Crimmins had been called, it is unlikely that he would have been treated as a completely reliable witness. The absence of Corfield, from Argyle, can be explained, perhaps superficially, by the fact that he was not present at any of the discussions with Crimmins. This, however, does not dispel the inference that he could probably have revealed relevant information about the course of events which led to Barry Crimmins admitting to Inspector Robbins and Sergeant Gwilliam, at the Kununurra interview, that he had indeed stolen diamonds from the Argyle mine and had supplied the diamonds to Roddan in return for payment.

25 Apart from his descriptions of what appeared to be incongruous conduct by Sergeant Noye when visiting him in Shepparton in November 1992, Barry Crimmins had no knowledge or information which could be regarded as evidence capable of implicating Noye in corrupt conduct with Roddan.

26 Barry Crimmins was charged with offences relating to the theft of diamonds from Argyle. Lynette Crimmins was also charged with related offences. They were indicted and each pleaded guilty to those charges on arraignment before the District Court of Western Australia. Barry Crimmins was sentenced to imprisonment and has since served that sentence. Lynette Crimmins was released on a conditional bond. Each agreed to provide evidence against Roddan, implicating him in an unlawful conspiracy to steal diamonds from the Argyle diamond mine and to distribute them unlawfully in Western Australia and elsewhere. They also agreed to give evidence against Noye. Because of her role in initiating the complaints against Roddan, and then providing evidence against him at his own trial, Lynette Crimmins was placed on a witness protection programme and continues in that programme under a new name. Certain behaviour by her whilst in the witness protection programme, which emerged in the course of her cross-examination, revealed that she continued to experience trouble of various kinds and that she had a tendency to make extreme allegations against persons whom she regarded as being antagonistic towards her.

27 Before the Kununurra confession of Barry Crimmins, Gwilliam's task force moved on Roddan searching his home on 10 August 1993. He was then arrested and charged with offences involving conspiracy to steal diamonds from the Argyle diamond mine by Sergeant Gwilliam. The timing of this arrest, before Barry Crimmins' confession in Kununurra, is perhaps significant as will be seen later. In fact, Gwilliam acted so quickly in this regard without liaising with Inspector Robbins who was still conducting the twin investigation into the allegations against Noye, that Robbins regarded his actions as impulsive and premature. Roddan was eventually put on trial having pleaded not guilty to the charges. He was convicted after having been found guilty by verdict of a jury and was sentenced to imprisonment. Evidence against him at his trial was given by both Barry Crimmins and by Lynette Crimmins.

28 One of the undesirable side effects of the arrest and charging of Roddan by Sergeant Gwilliam and his task force, without prior co-ordination with Inspector Robbins, was that the arrest of Roddan was followed by considerable publicity alleging that one or more senior police officers involved in the long running investigation in the Argyle diamond thefts, which, itself had received publicity over the years, were implicated in corrupt conduct concerning the diamond thefts and the police investigation. These speculations in the press pointed clearly enough towards Noye, although he was not at first explicitly identified. I have little doubt that this information was leaked to the press by, or at the instance of Gwilliam or by members of his staff and, perhaps by the Argyle diamond security staff.

29 The evidence includes a large body of press articles, in the period shortly following Roddan's arrest, particularly in The Sunday Times, raising these speculations and implying that the Police Force was failing to act adequately in relation to corruption within its own ranks. In the light of this press campaign, and given the constant leaks from the police task force which had charged Roddan, I have no doubt that an atmosphere of crisis developed within the Police Force about how to deal with the allegations of corruption against Noye. This gave rise to a feeling of public expectation that the matter needed to be resolved quickly and decisively.

30 Noye had constantly denied any illegal, improper or corrupt conduct and the case against him was largely circumstantial. The most adverse circumstances possibly pointing to unlawful conduct on his behalf are as follows:

(a) The frequency of his meetings with Roddan which, after Gwilliam withdrew from the investigation, he ill-advisedly conducted alone.

(b) His recommendation in the final version of his report to his superiors that the Argyle diamond theft investigation be written-off because of lack of evidence to support the conclusion that there had been any theft or that Roddan was in any way involved.

(c) His delivery to Roddan of a copy of the scientific expert evidence prepared by Argyle for use in the interpleader proceedings in order, so Noye said, to allow Roddan to proceed more expeditiously with the determination of the interpleader proceedings which, so Noye claimed, was the best opportunity to determine the ownership of the seized diamonds.

(d) His visit to Barry Crimmins in Shepparton, without the knowledge of his superiors, after the final report recommending the discontinuance of the Argyle diamond inquiry had been submitted; and

(e) The apparently ambiguous conduct of Noye while staying with Barry Crimmins in Shepparton.

31 Lynette Crimmins' evidence against Noye, at first amounted only to her assertions of what Roddan had told her about the involvement of Noye in the conspiracy. There are, however, statements which Lynette Crimmins made at later stages of the investigation to the effect that she was present at meetings with Roddan and Noye at which the two openly discussed receiving money and dividing the diamonds between them. These allegations were denied by Noye and were not made by Lynette Crimmins until considerably later.

32 Barry Crimmins' evidence did not at first involve any direct implication of Noye in improper conduct or in the implementation of the conspiracy to steal diamonds. Rather, it depended upon Crimmins' characterisation of Noye's visit to Shepparton in November 1992 as incongruous and consistent with what he had been told by Lynette Crimmins of Roddan's allegations about Noye's participation in the conspiracy.

33 I have no doubt that, in all the circumstances, any seasoned investigator would have unhesitatingly realised that the testimony of Lynette Crimmins was very fragile and that it would be surprising if her credibility withstood a challenge in any court proceedings which might come to pass. The most that Barry Crimmins' evidence could then add to the case was another circumstance which might or might not be regarded as revealing incongruous behaviour by Noye arising from his visit to Shepparton. Later, after Noye had been charged, Barry Crimmins gave an amended statement to the police which, for the first time, described a conversation at Shepparton between Noye and Crimmins. The conversation, which occurred at night, included an ambiguous statement by Noye, which, on one interpretation, might be regarded as an oblique admission of corrupt conduct.

34 Such was the climate of press criticism against the police arising from the prolonged Argyle diamond investigation, which had only resulted in an arrest after two earlier inquiries had been written-off by the police themselves, that leaders of the two task forces, dealing separately with Roddan and with Noye, thought it proper to obtain advice from the State Director of Public Prosecutions ("DPP"). The details of the advice given in relation to the appropriateness of charging Roddan at the time, and the sufficiency of the case against him, has not been disclosed in evidence in this case. However, the fact that advice on those matters was sought and was given did emerge.

35 In addition, Inspector Robbins sought advice about whether or not it was appropriate to charge Sergeant Noye with offences of corruption arising from his conduct in the Argyle diamond mines investigation. The advice which he was given was that not only was this appropriate but that it was his duty to do so. The advice which was given came from Mr George Thomas Warren Tannin SC, now a senior State counsel, but then a senior prosecutor on the staff of the DPP. Evidence to similar effect was given by another legally qualified senior member of the DPP's staff, Ms Susan Elizabeth Walker (then Mrs Lightfoot). Neither Mr Tannin nor Ms Walker was called or cross-examined in these proceedings and their evidence comprises only written statements (Exhibits 154 and 156). Inspector Robbins readily acknowledges that, despite advice which he received from sources which he could be expected to respect and esteem, the responsibility for laying any charges rested with him personally. However, he points to the advice received from the representatives of the DPP to show that he was acting reasonably, responsibly and without malice. His counsel submits that this evidence corroborates his claim that there was then, objectively, reasonable and proper cause to lay the charges.

36 What has not emerged, however, is what was the actual evidence, as distinct from allegations, which was submitted to the officers of the DPP for evaluation when advice was sought as to whether or not there was a sufficient case to charge Sergeant Noye. It appears that no formal brief or proofs of evidence were then prepared or available and submitted to the DPP. Therefore, it seems that the advice which was given by the officers of the DPP was largely by word of mouth and based on oral briefings which they had received about the parallel cases against Noye and Roddan. It is not without significance that in advising on the case against Roddan, the DPP's office received briefings from Sergeant Gwilliam and his team which, I have no hesitation in concluding, were extremely adverse toward Sergeant Noye. At that stage, the depth of the animosity by Gwilliam towards Noye had not become fully apparent and was, I conclude, little known to the advisers at the DPP. Had it been more fully known, there would certainly have been occasion for more caution and reserve being exercised. In retrospect, there should have been considerable restraint exercised before accepting or acting upon allegations put forward against Noye by Sergeant Gwilliam or sources closely associated with him.

37 This was a second serious and unfortunate by-product of the original decision to divide the responsibility of the investigation of all aspects of the diamond thefts between the Gwilliam task force, on the one hand, and the Robbins task force on the other. I am satisfied that Inspector Robbins realised the vehemence and antipathy of the attitude of Gwilliam towards Noye and attempted to dissociate himself from this. However, having regard to the informal nature of the approaches to the office of the DPP by representatives of both task forces, and the press generated public climate of suspicion directed towards the police operations, the exigencies of the situation were that the DPP was effectively being asked to advise the Police Force generally as to the best way of handling the overall situation. As a result, the need to scrutinise independently, and from the standpoint of the existence of admissible evidence only, the strength of the case against Noye seems to have been underestimated. This is a very unfortunate consequence, which reflects poorly upon the structure of the investigations. I am satisfied, however, after all the evidence has been weighed, that it was more or less an inescapable consequence of the way the investigations were organised within the police hierarchy and how divided (and antagonistic) commands were delegated to the two task forces involved each of whom had direct access to the DPP.

38 In the light of these recommendations, and on his own appraisal of all the materials available to him, Inspector Robbins decided that Sergeant Noye should be charged with indictable offences alleging corrupt complicity with Roddan, and concealing and suppressing evidence arising from his investigation of the Argyle diamond affair. Noye was charged with these offences by summons by Inspector Robbins, in the presence of Noye's solicitor on 12 November 1993, and was immediately suspended from duty. Roddan was also charged with offences relating to conspiring to corrupt the police investigation.

39 A few days after being charged with the offences relating to corrupt conduct in connection with the Argyle diamond affair, Sergeant Noye was also charged with a series of police internal disciplinary offences which, so it was claimed, had come to light as a result of the detailed investigations into his conduct. These are set out later in these reasons. These internal disciplinary charges were actually laid by Inspector Dawson, and not Inspector Robbins. However, there is no doubt that it was Inspector Robbins' investigations which led to the recommendation that charges be laid. It was because of internal police allocation of duties, that the actual charges were laid and pursued by another officer.

40 Sergeant Noye was then obliged to appear before the Court of Petty Sessions in Perth to answer these charges. Roddan also appeared on related charges at the same hearing. At this hearing, Mr Lloyd Patrick Rayney of the Office of the DPP appeared for the complainant and made an extended submission outlining the alleged depth and gravity of Sergeant Noye's involvement in corrupt conduct and of his collusion with Roddan, whose activities had caused the corruption of police investigations up until that point. In the light of the events which were happening at the time, I have concluded that the statement to the court by the prosecutor on this occasion had more to do with managing the overall situation, and the clamouring press, by demonstrating that the police and the authorities were taking rigorous action in the face of all the public allegations. With the benefit of hindsight, this was more than was merited on a realistic assessment of the strength of the case against Sergeant Noye at the time. However, by then the influence of Sergeant Gwilliam and his supporters had gained the ascendancy and the explanation almost certainly lies in the allegations which were being made to the prosecutors from those quarters. Again, the problem of divided commands, and of allowing a person with such entrenched hostilities towards Noye a leading role in the investigation, shows both the error and inadequacy in command oversight.

41 The disciplinary charges laid against Noye also remained pending. The explanation for the inactivity of both the proceedings on indictment and the disciplinary charges against him was that it was necessary first to dispose of the charges against Barry and Lynette Crimmins and against Roddan.

42 When that eventually occurred, and with no more than a day's notice, the DPP presented a nolle prosequi to the District Court on the indictments against Noye. Those prosecutions therefore ended and he was discharged from any further restraint in respect of them. Also, shortly afterwards, all the police disciplinary charges against Sergeant Noye were discontinued. However, his career within the Western Australian Police Force was ruined. He was offered an opportunity of resigning from the force on health grounds, which, inevitably in the face of the end of his career as a result of these allegations was the only decision which he could make in the circumstances. Since then he has commenced these proceedings, which were originally associated with similar proceedings brought by Roddan. I severed the two sets of claims after the decision which I gave in this case on 31 May 2005: [2005] WASC 137.

43 Essentially, it is Noye's case that the prosecution and the disciplinary charges were instituted against him by Inspector Robbins; that they were brought maliciously; that they were brought without any reasonable or probable cause; that they have been resolved, as far as they are capable of being resolved, in his favour without conviction; and, that the charges have caused him loss and damage in respect of which the action is maintainable. Noye has relied on an additional cause of action of misfeasance in public office in his claim against Inspector Robbins and has also alleged injurious falsehood. In his related action against Lynette Crimmins he has alleged malicious prosecution and injurious falsehood. In effect it is Noye's case that it was malice and false accusations on the part of Lynette Crimmins which, in effect, caused Inspector Robbins to lay the original charges.

44 This long recitation then sets the stage upon which to examine the particular allegations, the nature and cogency of the evidence against Noye, the course of the Argyle diamond stealing investigations and the manner in which the decisions were ultimately taken for charges to be laid. It is a long and complicated history of events.

The first detailed police report - the Thoy report of 14 December 1990

45 This document, Exhibit 149, is important because it reveals the complexity of the initial police investigation, the difficulties which were encountered in its pursuit, and a good deal of the mutual animosities and hostilities within the Police Force which led to the closing down of the inquiry, at the direction of Superintendent Dalton, very much against the wishes of the investigating officer Sergeant Thoy.

46 This report describes the origin of the initial complaint by Argyle Diamond Sales Pty Ltd (a wholly owned subsidiary of Argyle) to the police, the structure of the diamond production and selling business of Argyle, and earlier police inquiries. In late 1989, Corfield, the manager of security of Argyle, had spoken directly to Chief Superintendent Brian Illingsworth about the suspicious appearance of pink diamonds in Antwerp, Belgium, which were believed to have been illicitly sourced from the Argyle diamond mine. Chief Superintendent Illingsworth instructed Sergeant Grieve, on 11 November 1989, to initiate an inquiry and this was conducted by Detective Senior Constable Castlehow of the Bureau of Criminal Intelligence ("BCI"). It was documented in a report on 15 December 1989.

47 From 1985 until October 1989 the Ashton Joint Venture ("AJV") was operated by Argyle, and effectively owned by CRA Exploration Ltd ("CRA") as to 60 per cent; Ashton Mining Ltd ("Ashton") as to 35 per cent; and, the Western Australian Diamond Trust ("WADT") as to 5 per cent. The WADT was an offshoot of, owned and controlled by the then Western Australian Development Corporation ("WADC"), until its 5 per cent share in the AJV was purchased by Ashton in October 1989. The joint venture was conducted under the provisions of the Diamond (Ashton Joint Venture) Agreement Act 1981(WA) (now the Diamond (Argyle Diamond Mine Joint Venture Agreement Act 1981 (WA)).

48 The diamond extraction operations were all conducted at the Argyle mine near Kununurra and the diamonds, both industrial and gem-quality stones, were sorted and packed under strict security conditions at the mine site. This included the treatment of gem-quality diamonds by the process of acidisation (with hydrofluoric acid) to clean and remove adherent particles of Kimberlite. The diamonds were then sent to Perth where the WADT selected a representative 5 per cent of the diamonds delivered as its share of the product, which it arranged to market and distribute separately. It is not exactly clear how the other AJV partners marketed and distributed their 95 per cent of the diamonds but, at least in relation to the gem-quality diamonds, it appears that these were delivered to the Diamond Trading Company of London - an affiliate of the De Beers organisation. All the gem-quality diamonds produced by Argyle went to De Beers, who then shipped them overseas and mixed the Australian diamonds with other diamonds purchased from around the world and sold them in pre-selected batches to special dealers who had no right of individual selection. It was, therefore, extremely difficult, if not impossible, for a purchaser to acquire a large selection of gem-quality Argyle diamonds from the De Beers organisation. Various experts in the international diamond trade were consulted who gave it as their opinion that it would be very difficult for any diamond dealer operating in Perth to acquire, lawfully, a large quantity of uncut gem-quality Argyle diamonds.

49 The 5 per cent of the diamonds produced which were received by the WADT were, however, treated differently. Significant numbers of the industrial quality diamonds were delivered to East West Diamond Products Pty Ltd ("East-West") of Kalgoorlie, a company owned, as to 51 per cent, by the WADC. That company manufactured diamond drill bits for the mining industry and, during the mid 1980s, its main source of industrial diamonds was the WADT. The marketing arrangements for the WADT gem-quality diamonds do not appear ever to have been fully discovered. However, a significant quantity of the WADT gem-quality diamonds was supplied to the firm Arslanian Freres in Antwerp, which had been contracted by the WADT to dispose of the 5 per cent of the gem-quality diamonds which it received from Argyle. Corfield, of Argyle, had discovered that Arslanian Freres had complained to the WADT that the gem-quality diamonds which were sent to them for distribution in Antwerp were of inferior quality and not representative of the best gem-quality Argyle diamonds available through De Beers - the implication being that somehow, somewhere, the good quality WADT Argyle diamonds were being "creamed off" to other sources.

50 It was against this background that the police discovered a quantity of uncut diamonds, in the possession of a Perth jeweller, Noel Newton, of Perth Diamond Cutting Works in Fremantle. The jeweller explained that he had received the diamonds on consignment from Lindsay Roddan, the owner, and that he was cutting them at Roddan's direction. Under some informal arrangement these diamonds were examined and analysed by CRA scientists, who noted that three of the rough diamonds were pre-acid and that one, a 9.95 carat stone, was of top quality. After testing, which indicated that some of the stones appeared to have come from Argyle, the diamonds were returned to Newton.

51 Further inquiries revealed that there were a number of invoices and consignment notes from the international diamond dealer, Theodore Horovitz of Geneva, indicating that some 132 carats of rough diamonds had been sent by Horovitz to one of Roddan's companies. Further investigations revealed that Horovitz had transferred large sums of money into the account of another of Roddan's companies, and that during the period November 1988 to July 1989 some $395,000, or thereabouts, had been paid by Horovitz to one of the companies of which Roddan was a director. According to Roddan and Horovitz, those diamonds were purchased by Horovitz in Antwerp and comprised diamonds from several sources including Kalimantan, Brazil, Botswana and Australia. The expert advice to the police from the diamond trade was that it was very unlikely that such a quantity of Australian diamonds could be purchased in Antwerp. The scientific investigation suggested that two of the stones found at Newton's premises came directly from the Argyle mine. When contacted by telephone in Geneva, Horovitz maintained that he had not sent Roddan Australian stones and later identified the pink diamonds as those he had purchased for Roddan from a dealer for Freeport (Normandy Poseidon Ltd), in Antwerp.

52 In February 1990 Sergeant Thoy was approached by the BCI to handle the inquiry and efforts were directed to attempting to establish some link between Roddan and an employee at the Argyle mining site which might explain how Roddan came into possession of what were believed to be pink Argyle diamonds. Roddan was interviewed and listening devices were installed at his premises, but he maintained that all his diamonds came from Horovitz in Geneva. On 26 February 1990 a search warrant was executed at Newton's diamond cutting works in Fremantle and a quantity of rough diamonds was seized and examined, leading to the belief that most of them were of Argyle origin. These, too, were diamonds held by Newton on consignment from Roddan. Newton went on to say that he had cut and polished approximately 150 to 200 rough diamonds for Roddan and that these had been of good quality. At this point the police firmly believed that the Newton diamonds, received on consignment from Roddan, had been illicitly sourced from Argyle, but they had not established how that could have occurred.

53 The two chief possibilities, which were the subject of the investigation, were that diamonds were being stolen direct from the mine site for illicit distribution, or that gem-quality diamonds were being illicitly diverted from the WADT stocks. It was thought unlikely that such large quantities of uncut gem-quality Argyle diamonds could be purchased from lawful dealers in Antwerp. Further, the apparent dispatch of quantities of diamonds from Horovitz in Geneva to Roddan was thought to be a cover to provide an explanation for the possession of much larger quantities of Argyle stones by Roddan than could credibly be explained as coming from that source.

54 The police then turned their efforts to identifying a person or persons on the staff at the Argyle mine who might be involved in illicitly supplying diamonds from that operation. To this end Sergeant Thoy liaised with Corfield and, at his recommendation, involved the security officer at the mine site, Barry Crimmins, in the investigation. As a result Crimmins was fully briefed and was supplied with all the pertinent facts, including the names of Roddan, Horovitz, Newton and others, and was told of potential suspects in the diamond sorting area. He was asked if he suspected any person at the mine site but, apart from suggesting one potential subject who when investigated proved innocent, he expressed no knowledge of, or suspicion of, any person and did not divulge any knowledge of or, association with, Roddan.

55 At this point Sergeants Thoy and Gwilliam wished to place listening devices in the rooms of certain suspects at the mine site and, when they submitted that request, were told to brief fully the officer in charge of the inquiry - Superintendent Dalton. Dalton had previously ordered that the inquiry be strictly confined to the area relating to the Newton diamonds discovered and had stated that the inquiry should be wound down. This was the beginning of the development of hostility and suspicion by Sergeant Thoy towards Superintendent Dalton. This was also associated with ongoing arrangements under which Argyle was to contribute to the costs of the police investigation. Sergeant Thoy complained to Superintendent Dalton that, when Argyle was dealing with Assistant Commissioner (Crime) Scott about this matter, Scott disparaged him.

56 Also, at this point, Roddan was demanding the return of the diamonds which had been seized from Newton's workshop and had engaged lawyers to pursue their recovery. In discussions with his lawyers and the police, Roddan had suggested that some of the diamonds might have come from another nearby Kimberley prospect - Wesley Creek Springs - rather than from the Argyle mine site.

57 After making enquiries at the Argyle mine site, Thoy and the inquiry team returned to Perth. When briefing Superintendent Dalton they were again requested to wind-up the inquiry. Although they maintained that further investigation was necessary according to Thoy, Superintendent Dalton still insisted that the matter be finalised and would not authorise further enquiries from Horovitz in Geneva.

58 Thoy and his team maintained that they needed to examine the records of the WADT in order to establish whether any diamonds had been sold from that source to Roddan, Horovitz or to other potential suspects. The team's investigations had involved checking the Ashton records of diamond stock transits and shipments. This led to them recommending that a detailed audit of both the Ashton records and the WADT diamond records should be undertaken. However, Superintendent Dalton refused to authorise this and directed Sergeant Thoy to cease the accounting exercise, maintaining that Ashton should undertake its own audit. After some discussions CRA and associated companies agreed to authorise and finance an audit of the WADT records and no objection to this course was initially raised by Thoy's superiors. While this was taking place Sergeant Gwilliam was transferred to other duties at the Belmont CIB, despite strong protests from Sergeant Thoy.

59 Arrangements proceeded for a firm of chartered accountants, Coopers & Lybrand, to be engaged by Argyle to examine the books of the WADT. Several meetings were held to establish a procedure and on 24 April 1990 a search warrant was executed at Ashton's premises to seize all of its books, records and correspondence relating to the diamond productions. A seizure of documents from the WADT was also executed. However, while this was occurring, Superintendent Dalton demanded to know why the books were being seized and on 26 April 1990 convened a conference, in the presence of Superintendent Farrell, demanding to know why Thoy's team had seized the books of the WADT. In the process Dalton questioned the validity of the search warrant. Superintendent Dalton protested that Sergeant Thoy had not complied with his previous instructions to confine his investigation to the area of diamonds seized and again emphasised strongly that the police should not be involved with the audit as that was the responsibility of Argyle. Also, the two superintendents were not persuaded of the necessity for the police to go to Kalgoorlie to seize books from East-West, or from other agencies, and insisted that the investigation should halt there.

60 The next day, 27 April 1990, Superintendent Farrell conveyed to Sergeant Thoy specific instructions that there was to be no further outside inquiry; that Argyle was to audit the books itself first; and, that Kalgoorlie enquiries were to be left until the result of the audit was known. Thoy protested that the conduct of the investigation was being taken out of his hands and that he could not honestly continue on the inquiry under such conditions. Thoy formed the belief that he may be in breach of the criminal law if he complied with those instructions, which he believed were inconsistent with his duty to investigate apparent criminal conduct, and sought independent personal legal advice.

61 Independently, Argyle was proceeding with the audit of the books and the auditors contacted Thoy to request access to the East-West books. Sergeant Thoy told Superintendent Farrell about this and that the managing director of Argyle and Corfield, its manager of security, had made an appointment to see the Commissioner of Police on 9 May 1990. As a consequence, it was necessary that the Commissioner should be fully briefed before that visit.

62 On 8 May 1990 Sergeant Thoy was approached by Chief Inspector Trewin and Inspector Adrianus Storm (later Superintendent Storm) who required an immediate briefing on the Argyle inquiry. Sergeant Thoy said that Superintendents Dalton and Farrell had been fully briefed but was told that Dalton was on leave and that those two senior officers were under instructions to brief the Commissioner before the meeting with the Argyle managing director. At the briefing which was subsequently conducted, the two inspectors stated that Superintendent Dalton's former instructions were to be adhered to.

63 A further briefing with Chief Inspector Trewin and Inspector Storm was held on 14 May 1990 and was also attended by Sergeant Gwilliam. This led to a meeting attended by the two inspectors with representatives of the auditors and Mr Corfield on 15 May 1990. At that meeting Inspector Storm stated forcefully that it was Police Department policy not to be involved with audits and that, in his opinion, there was insufficient evidence to continue. In the presence of the auditors and Corfield, Inspector Storm stated that the search warrant executed by the inquiry officers had not been justified. This caused concern to the auditors over what their obligations were in relation to the materials which had been delivered to them for examination. All this was said, notwithstanding the preliminary report from the auditors stating that their initial perusal of the books had revealed a number of discrepancies and unusual items in the books and records of the WADT involving diamond stock on consignment to Arslanian Freres and to East-West.

64 At this point, Thoy was adopting the position that his conduct in the inquiry had been compromised, his credibility questioned and that he had been told that he had no authority to issue the search warrants. Consequently, he took the view that he was no longer in charge of the inquiry and told Corfield this. Corfield complained to Chief Inspector Trewin that Sergeant Thoy "was off the inquiry". Despite Thoy's continuing protests about the manner in which the inquiry was being directed by superior officers, he was given a direct order that he was to continue with the inquiry on the terms which had been dictated.

65 Unhappily, dissatisfaction developed between Argyle and the police over the further management of the inquiry, leading to complaints being made by Corfield. A further meeting with Inspectors Trewin and Storm and Sergeant Thoy was held. Thoy was directed by Storm that he could continue the inquiry at his discretion, but that he was not to travel to Kalgoorlie and that no search warrants were to be issued.

66 In early June 1990 the police learned that the accountant for WADT had resigned and was planning to leave the country on an extended holiday, but no permission was granted to interview the accountant until the audit had been completed. A second audit report of 7 June 1990 was produced which revealed a problem regarding the recording of the outward movements (sales) of the diamonds to other parties. Attempts were made to reconcile the deficiencies in the records and to estimate missing quantities of diamonds, but it was felt that this reconciliation could not be conducted without seizing the other books from WADT to complete the audit. A further problem arose about the costs of the inquiry and whether Argyle should continue to finance the investigations, resulting in CRA deciding to continue the audit at Argyle's expense. At this point, information was received from Argyle's Antwerp office that an Israeli diamond merchant had approached the European sales office to advise that a firm he represented (Inter-Mark) had been buying the better quality Argyle diamonds from the WADT. On being questioned, the Israeli diamond merchant became secretive about the source of the Australian diamonds. However, this, with other inquiries, led to information being received that the Israeli diamond merchant had been buying WADT stones from within Australia and that there had been a significant leak of stones from the WADT. At this point Thoy and Gwilliam, evidently with higher approval, travelled to Kalgoorlie to interview personnel associated with East-West and to seize their records to allow the audit to be completed. As it turned out, the East-West records were poor and did not establish the movement of diamonds to and from the WADT.

67 After that, a further staff member was needed for the investigation team and a request was made for Sergeant Gwilliam to be reappointed as he had returned from leave. This prospect was put to Inspector Storm and was referred to Superintendent Dalton on 2 July 1990.

68 At this point, there was an unexpected break in the investigation. An informant supplied information to Sergeant Thoy that Barry Crimmins and Lindsay Roddan were good friends and that Crimmins, on occasions, had visited Roddan's home. Thoy immediately alerted Corfield at Argyle to this revelation and gave instructions that no more sensitive information was to be passed to Crimmins. The informant's story was checked and confirmed and then led to the immediate realisation that there were two parallel courses of inquiry which needed to be pursued. One was the suspected theft of diamonds from Argyle and the supply of them to Roddan. The second was the apparent discrepancies and the diversion of diamonds from WADT to the Israeli diamond merchant and, possibly, to Antwerp or Horovitz in Geneva.

69 With the seizure of the additional records and supply of them to the auditors, a final audit report of 26 July 1990 was prepared. This suggested a shortfall of 252 carats of diamonds during the period until the WADT was taken over by Ashton. It was believed that there were irregularities in the reports prepared by the accountant at the WADT. There were also apparent irregularities in stock, comprising diamonds "written off", and there was reason for concern about the movement of diamonds within the WADT. At this point Argyle decided that they should cease funding the audit investigation because it appeared that the problem which had been revealed was external to Argyle and concerned the operations of the WADT. Investigations of former staff at the WADT had revealed that certain stones had been separated from the main stock and retained for local sale and evaluation, but there was no record of how or to whom these were sold. However, a witness had provided a statement that pink diamonds were removed from the WADT shipments and sent directly to the WADT representative in Antwerp.

70 By now, Argyle was expressing further dissatisfaction in the delay occurring in the inquiry and, in particular, because Barry Crimmins had not been interviewed by the police. Corfield called on Superintendent Ghockson at the CIB to express concern about this apparent inaction. Another police officer, with little experience in the inquiry, was instructed to interview Crimmins in Sergeant Thoy's absence whilst on leave. On his return, Thoy protested about this decision which apparently caused resentment and irritation to Superintendent Ghockson.

71 In any event, Crimmins was later interviewed and when the name "Roddan" was mentioned, he immediately recognised it and asked why it had never been mentioned to him before. He denied that Roddan's name was spoken of at the first meeting in Corfield's office and denied being involved in the theft of diamonds from the mine. His premises were searched but nothing was found. Corfield then interviewed Crimmins at Argyle's office and he again denied ever having heard the name "Roddan" mentioned previously in interviews with the police or with Corfield. Corfield did not accept this and became more suspicious of Crimmins as minor details of his story changed over time.

72 On 13 November 1990, Crimmins was again interviewed; this time by Sergeant Thoy in the presence of Sergeant Von-Palske. He was told that he was suspected of being involved in unlawful activities at the Argyle mine site and that he may have been responsible for the theft of the diamonds found in Newton's possession, but he denied this. He became upset and angry when the police expressed a desire to interview his wife. He ultimately resigned from his position at Argyle.

73 The fate of the Newton diamonds remained the subject of litigation. The interpleader was to come on for mention before the District Court on 30 November 1990 and it was expected that if the proceedings continued, police officers would be required to supply affidavits or give evidence. At this point in his report, Sergeant Thoy wrote that his inquiry, "audit to fruition", was still incomplete. In his view, the matter of the audit and the shortfall of 252 carats of diamonds from the WADT required further urgent attention, as did the investigation of the conduct of Crimmins and Roddan. Nevertheless, he had been ordered to cease further inquiries. Corfield had been told that Sergeant Thoy could no longer assist him and that the investigation was finalised. Sergeant Thoy concluded his report by observing that he had approached Superintendent Dalton and had been told that he, Thoy, was not considered an appropriate person to continue the matter and all further requests should be directed to a different unit.

74 This report reveals that Sergeant Thoy was very dissatisfied and critical of the instructions given to him to cease the inquiry at a point when he, Thoy, believed that significant further initiatives were obviously necessary. It is evident that he seriously questioned the judgment of Superintendent Dalton, and of Chief Inspector Trewin and Inspector Storm. It is evident that he was also critical of Superintendent Ghockson and other senior officers. Perhaps he was a difficult man to handle and somewhat impetuous in his investigations, although the report (Exhibit 149) pursues a cogent line of thought and it is difficult to resist the conclusions that there was every reason to continue investigations into the internal operations of the WADT and to pursue investigations into Roddan and Crimmins.

75 This trial is not in any way concerned with investigations into the conduct of the WADT or what, if anything, happened further in that regard. However, the decision to cease the investigation into the Roddan/Crimmins association and the suspected theft of diamonds from the Argyle mine clearly had unfortunate and destructive consequences. There can be little doubt that it sowed the seeds of distrust and suspicion in the minds of Sergeants Thoy and Gwilliam about the performance of elements in the Police Force command of the public duty to investigate crime, and that it generated a consequent belief that there was some undisclosed or unaccountable reason to refrain from what seemed to be a necessary course.

76 As will be seen, this developed into a major problem in later phases of the investigation and led to repeated allegations being made of corruption within the Police Force in regard to this investigation. As always, such allegations became corrosive, destroyed trust and confidence, and undermined discipline. In that climate it became very difficult to manage the inquiries and more difficult still to deal with and evaluate repeated allegations of corrupt activity.

77 Whatever view one might hold about the objectivity, reliability or general prudence of the Thoy investigation, it contains a number of significant features, which are not only important but which were vindicated by subsequent events. Importantly, those include the following:

(a) The conclusion that Roddan's account of having received the Newton diamonds on consignment from Horovitz in Geneva, together with other quantities of Australian diamonds from the same source, was almost certainly either false or exaggerated and was aimed at covering Roddan's possession of large quantities of uncut Argyle diamonds which had come illicitly from the Argyle mine.

(b) That Roddan was identified from the very outset as the major suspect involved in the theft and distribution of Argyle diamonds and was almost certainly acting complicitly with an employee of Argyle at the mine site.

(c) That although the scientific tests on the Newton diamonds performed by the CRA scientists only positively identified two of the diamonds as sourced from the Argyle mine, the probabilities were high that significant quantities of the other diamonds also came from that source. Not only do the circumstances point to that conclusion, but such investigations as had been conducted by reliable experts in the international diamond trade indicated that it was highly improbable that any person could come by a significant quantity of Australian diamonds lawfully by purchase through the De Beers' outlet. Similar inquiries revealed that Arslanian Freres were dissatisfied with the low quality and quantity of gem grade stones being received from the WADT.

(d) That the indications were that there were serious irregularities in the record-keeping processes and stock control of diamonds within the WADT and, so far as it was possible to conduct an audit, the efforts revealed that a significant quantity of diamond stock was missing. Other evidence from staff members suggested that there was a diversion of high quality gem stones from the WADT stock in an unrecorded manner to persons unknown.

(e) That the senior security personnel at Argyle, in particular Corfield, became seriously dissatisfied with the nature and rate of progress of the police investigation and complained to senior officers within the Police Force about this.

(f) That on any basis, there were solid reasons to conclude that diamonds in significant quantities had been stolen from the Argyle mine and also from the WADT, so that the police investigation should have been continued.

(g) That Sergeants Thoy and Gwilliam had developed a good working relationship, had acquired a high degree of knowledge of the diamond processes at Argyle and the international diamond trade, and had achieved major progress in the investigation, which they had been instructed to undertake before it was terminated by orders from higher authority.

78 These interpleader proceedings, pending in the District Court of Western Australia, relate to a quantity of the diamonds seized under warrant by Sergeant Thoy from the premises of Noel Norman Newton at 29 Adelaide Street, Fremantle, where they were being cut or polished by Newton whilst on consignment from Roddan. It is important to note, however, that these are much fewer in number than the diamonds originally detected by Corfield as being in Newton's possession, and inspected by Sergeant Thoy earlier in December 1989. There is no reliable account of the number of such diamonds first found at Newton's premises, but it appears that there was something in the order of 200 stones then discovered.

79 By the time the search warrant was executed, on 26 February 1990, there were only 27 stones remaining. These were seized by the police. Over the subsequent months and years, a total of eight of these were returned voluntarily by the police to Newton, for Roddan, because testing conducted on them demonstrated that they probably did not originate from the Argyle mine. It is the 19 stones remaining in police custody which became, and still are, the subject of the interpleader action.

80 It is also necessary to note that at about the time that the Newton diamonds were seized under the search warrant in February 1990, the police also conducted a search, under warrant, of Roddan's own premises. In the course of that search they found a packet containing approximately 48 gem-quality diamonds of relatively small size. These were examined by a diamond expert whom the police had arranged to be present during the search. His opinion was that, while one could not be certain of the origin of those stones, the nature of the cuts and other factors indicated that it was unlikely that they originated from Argyle. Roddan asserted that these particular diamonds had been sent to him on consignment from Geneva by Horovitz and had invoices to support that claim. The officers and the diamond expert present at the search appeared to have accepted that explanation and did not seize that parcel of gems.

81 Once the Newton diamonds had been seized by the police, arrangements were made for them to be carefully inspected, described and appraised by a senior diamond consultant specialist retained by Argyle Diamond Sales Pty Ltd (a wholly owned subsidiary of Argyle). That was done on 7 and 8 March 1990 (3TB 435-439). The consultant concluded that 25 of the 27 diamonds were of Argyle origin and attributed values to them. The two remaining diamonds, which were also appraised (stone KM3 and stone B26), were reported as being of non-Argyle origin. Later, in circumstances which are not important, a further six of the seized stones were acknowledged to be of non-Argyle origin and were also returned, leaving 19, which Argyle maintained were its property.

82 In August 1990 (2TB 103) the solicitors for the Argyle Diamond Mine Joint Venture wrote to the Commissioner of Police asserting that their client owned those 19 stones and demanded delivery of them. Sergeant Thoy and his superior officer reported to the Assistant Commissioner (Crime) that there was insufficient evidence to proffer a charge against Roddan in respect of these stones, and that the appropriate course was to instruct the Crown Solicitor to issue interpleader proceedings to allow the dispute between Argyle and Roddan over the ownership of the diamonds to be resolved by a court. The Crown Solicitor, on behalf of the State of Western Australia, issued interpleader proceedings in the District Court of Western Australia (No 8133 of 1990) naming the State as the plaintiff (interpleader) Lindsay Gordon Roddan as the first defendant, and the Argyle Diamond Mine Joint Venture as the second defendant.

83 After affidavits had been filed and directions given as to the conduct of the proceedings, there was an amendment to the style and to the parties. The State was removed as plaintiff, Argyle Diamond Mine Joint Venture was substituted as the sole plaintiff (presumably because it was the party asserting ownership to goods found in the possession of another) and Jucara Pty Ltd (a Roddan company) was substituted for Roddan as the sole defendant (it being Roddan's contention that the actual ownership of the diamonds rested in the company and not with him personally).

84 Argyle filed a statement of claim in the interpleader in June 1991. This identified 25 of the diamonds, to which Argyle was then asserting ownership, and made the following allegations of fact as the basis for its claim of ownership; namely:

(a) All the diamonds exhibited unique marks, structures and shapes, indicating that they were sourced from the Argyle mine.

(b) Two of the diamonds (TL50 and TL52) had not been treated with acid to remove dirt.

(c) Argyle has never sold or supplied diamonds from the Argyle mine which had not been acid treated.

(d) Argyle had only every sold diamonds of the size and quality of the gems in question to the Central Selling Organisation ("CSO" - the De Beers organisation).

(e) The practice of the CSO was to mix diamonds bought from Argyle with other diamonds from other worldwide suppliers, and to sell boxes of similar sized stones to CSO clients only.

(f) Because of the CSO selling practices, it was not possible for any single client of the CSO to acquire legitimately diamonds of the quality and quantity of the gems in question.

(g) Consequently, these diamonds can only have been obtained illicitly from the Argyle mine, so that no good title to them could be acquired by any subsequent possessor against the Argyle Diamond Mine Joint Venture.

85 This claim by Argyle was supported by affidavits filed in the interpleader proceedings by Sergeant Thoy (3TB 447-451). In one affidavit, Sergeant Thoy deposed that when he had asked Roddan how Roddan had come by the Newton diamonds, Roddan claimed that he had purchased them all from Horovitz, a known diamond dealer in Geneva, and that, on further questioning, some of the diamonds had come from Horovitz's sources in Hong Kong. After dealing with other matters, Sergeant Thoy deposed that he had made inquiries of Horovitz in Geneva, who had been sent a detailed list with the descriptions of the stones in question, and that Horovitz identified six of the stones on that list as having been supplied by him to Roddan. According to Thoy, Horovitz maintained that none of the other stones listed had been supplied by him.

86 In a second interview with Roddan, described by Sergeant Thoy, Thoy put to Roddan that Horovitz had told him (Thoy) earlier, that Horovitz had sent Roddan some rough pink diamonds, but had not sent him any other stones which Horovitz believed had come from the Argyle region. Roddan responded by asserting that a person named Michael Ronald Sillcock had a diamond claim at Wesley Creek Springs (adjacent to the Argyle mine), had recovered gem-quality rough diamonds from that claim, and that some of the Newton diamonds thought to have come from Argyle could well have come from Wesley Creek Springs. Over the next few days Sergeants Thoy and Gwilliam, and others, travelled to Kununurra and inspected the Wesley Creek Springs claim. No sign of recent diggings or operations was found and the limited state of work on the claim was regarded as quite insufficient to have produced the quantity or quality of the seized diamonds.

87 After Thoy had received information from Horovitz in Geneva that the latter had supplied, at most, six of the seized diamonds to Roddan, Roddan was interviewed again. On this occasion, he is reported as saying to Thoy that he had obtained the balance of the seized diamonds from an Indian dealer in a coffee shop in Hong Kong. He refused to provide further details, saying that his life would be in danger if he revealed anything more. Thoy obviously did not accept that explanation.

88 A statement from Sergeant Gwilliam supporting the plaintiff in the interpleader proceedings was also prepared and submitted to the Crown Solicitor. He substantially confirmed, but in more detail, the matters deposed to by Sergeant Thoy. A draft of an affidavit by Corfield of Argyle was also submitted to the Crown Solicitor and this, essentially, describes the treatment and sorting process of gem-quality diamonds at Argyle, including the acid process to remove all dirt or other substances from gems recovered.

89 Another affidavit, filed for Argyle in the interpleader proceedings, is from Raelene Mary Shaw, formerly Roddan's de facto wife for a period of 9½ years until March 1991. She deposed that in early 1989 she saw Roddan meet with Barry Crimmins at Roddan's house on at least two occasions. She also deposed that in late 1989 Roddan had told her that he had purchased hydrofluoric acid for the purpose of cleaning rough diamonds. He warned her that it was extremely dangerous and that she should not touch it.

90 Roddan, himself, swore two affidavits in support of his claim to the rightful possession of the Newton diamonds. These were dated 26 February and 10 April 1991 (3TB 413-427). In these he deposed that he was a director of Jucara Pty Ltd, asserting that it was that company which was entitled to the diamonds as trustee of the Roddan Family Trust. He then nominated six of the specified diamonds which had been seized as having already been returned to Jucara Pty Ltd and claimed that the remaining diamonds were all the property of that company.

91 In his second affidavit, Roddan swore that the diamonds seized had been purchased between about February 1987 and September 1989. He said they were purchased as part of four packages of diamonds, from Theodore Horovitz of Geneva and from merchants in Hong Kong and Singapore. He also said that on about 26 June and 4 August 1989, his trustee company obtained quantities of Australian diamonds from Horovitz. He annexed to the affidavit invoices from Horovitz's company of those dates, together with an air waybill for 28 June 1989 in respect of the carriage of those diamonds to Australia, and a Customs' document of 8 August 1989 in respect of their importation. He also deposed that in about October 1988 he purchased about 200 carats of diamonds in Hong Kong and 150 carats of diamonds in Singapore, but was unable to identify the vendor of those parcels. He added that each purchase was the subject of a cash transaction and that he carried the diamonds into Australia personally rather than having them sent by airfreight. Later, when questioned about the Horovitz invoices for these diamonds by Sergeant Thoy, and upon it being pointed out that the prices listed for the diamonds supplied were far above the market value for the diamonds seized, Roddan gave the explanation that the prices on the invoices had been deliberately inflated to allow him to claim losses for taxation purposes in his business.

92 Several features emerge from the dispute about the ownership of the Newton diamonds which are presently material. In the first place, Roddan's explanation as to the identity and source of the diamonds as all coming from Horovitz was found to be wrong based on inquiries made of Horovitz and, after that, Roddan gave at least two other descriptions about the source of the diamonds which could not be verified and which strained credulity. If anything, his explanations are likely to have increased, rather than allayed, suspicions which the police and Argyle entertained to the effect that Roddan had come by the diamonds illicitly. Secondly, however, it became apparent that not all of the diamonds seized from Newton came from Argyle. Some were positively excluded from that category and were returned to Roddan. Only two were identified as being pre-acid and, therefore, probably having bypassed the proper treatment and processing of stones recovered at the Argyle mine.

93 At the same time, it was confirmed that Horovitz had sent Roddan some rough pink diamonds. Later, after he had seen the list of stones prepared by the consultant, Horovitz identified six of the stones as having been supplied by him to Roddan and stated that none of the others had been supplied by him. There is also the fact that on the search of Roddan's premises by the police on 26 February 1990, a separate quantity of diamonds was discovered. These were examined by a diamond expert and pronounced as having been unlikely to have come from Argyle. All this revealed that Roddan had, apparently legitimately, been dealing in diamonds and had received quantities of gems from sources, including Horovitz. The gems received, comprised pink stones which may have come from Argyle, other stones which did not come from Argyle and, in a third category, stones which were suspected of having come from Argyle but whose actual origin could not, at that stage, be proved.

94 All this justified the view then taken by Sergeants Thoy and Gwilliam, and by their superior officer who approved of the institution of the interpleader proceedings, that there was insufficient evidence available to lay charges against Roddan. As I understand the evidence in this case, even now many years later, no one suggests that at that time there was sufficient evidence to lay charges against Roddan or that the view reached by Sergeants Thoy and Gwilliam in this respect was in any way unreasonable.

95 The consequence of this was that, in the interpleader proceedings, the onus of establishing ownership of the diamonds rested upon Argyle. In respect of the pink diamonds, Argyle appears to have had good arguable grounds to contend that they originated from its mine. In relation to these diamonds, however, Roddan appeared to be able to adduce evidence from Horovitz that they had been purchased for Roddan, through him (Horovitz), from sources in Antwerp, and in that case that Roddan had come by them lawfully. In relation to the other diamonds seized from Newton (some 13 in number), Argyle's claim depended upon it establishing the probability that each of the gems came from Argyle. This was not entirely straightforward because, of the entire 19, only two could be shown to be in pre-acid condition. However, Argyle's case was that, in the opinion of the expert diamond consultants who had appraised the stones, they showed features which made them recognisable as Argyle stones - the sufficiency of that evidence itself remained an unresolved issue. However, Argyle's case was supplemented by other circumstances, relied upon in the statement of claim in the interpleader, and stoutly maintained by Corfield; namely, that:

1. Pre-acid diamonds or, for that matter, diamonds with traces of Kimberlite or other adhering particles, were never dispatched or delivered from the Argyle mine site.
2. That gem-quality diamonds dispatched from the Argyle mine to Perth for marketing were all sent on to the De Beers' CSO in London where, because they were mixed in batches with other diamonds from all over the world, and sold in limited quantities to specially selected clients (the sights), it was not possible for any person to acquire a collection of a significant number of gem-quality Argyle diamonds, whether in Australia or elsewhere.

1. Similar constraints upon the sale and distribution of gem-quality diamonds through the WADT, in respect of its 5 per cent share of the mine product, resulted in similar consequences.

96 Corfield and the other advisors from Argyle apparently never wavered in their maintenance of those propositions, which were also accepted, without qualification, by Sergeants Thoy and Gwilliam. Consequently, they were satisfied that the case against Roddan, that he had illicitly come by these diamonds, although circumstantial, was strong. Accordingly, it can readily be seen that Argyle's prospects in the interpleader proceedings and, for that matter any case against Roddan that he had been illicitly dealing in stolen diamonds, depended to a considerable extent on Argyle, or the police, being able to establish that all, or most, of the Newton diamonds came from the Argyle mine and had not been purchased by Roddan through the diamond trade in Antwerp, Hong Kong or Singapore, as he variously claimed.

97 Despite having originated in 1990, there appears to be very little progress towards the hearing or determination of the interpleader claim. In fact, the evidence at this trial was that the claim was still unresolved and pending. There are several possible explanations for this lack of progress. From Argyle's point of view, it seems that the security personnel were intent upon persuading the police to continue or renew the investigation into the alleged stealing of diamonds from Argyle by Roddan or others. If such a renewed investigation could turn up further evidence then, not only would it be logical and proper for criminal proceedings to take precedence over pending civil proceedings dealing with similar issues, but the police investigation and any consequent charges for stealing would probably enhance the capacity of Argyle to establish ownership of the diamonds in the interpleader action. This may also account for the action by the senior police command in reopening the Argyle diamond theft investigation, by instituting the second phase in February 1992, conducted by Sergeants Noye and Gwilliam.

98 It is evident from Sergeant Noye's report (Exhibit 3), that as he progressed with his inquiry, he came to develop serious doubts about the explanations advanced by Corfield and others from Argyle that it was impossible for any person, such as Roddan, to come into possession of pre-acid Argyle diamonds or significant quantities of gem-quality Argyle diamonds.

99 The details of how Detective Sergeant Noye developed these doubts, and how in the end he concluded that these assumptions by Corfield were untenable, are lengthy and complicated. They are found in Exhibit 3 (2TB 116 - 200) and can be summarised in this way. As a result of inquiries made by Sergeant Noye of reputable diamond dealers and experts familiar with the quality, quantity and manner of distribution of Argyle diamonds, it became apparent that there were, during the period of around 1988/1989, problems or inadequacies in the acid cleaning process of gem-quality diamonds at the Argyle mine. These sources confirmed that diamonds had come from the mine which were not completely cleaned, still showing signs of Kimberlite or other adherent particles, and that in certain instances it had been necessary to send quantities of these diamonds back to Argyle for further acid cleaning treatments. In addition, these sources revealed that up until the time when the Argyle Diamond Mine Joint Venture took over the marketing of the WADT diamonds in about 1989, a number of reputable jewellers in Perth had purchased from the WADT pink gem-quality Argyle diamonds for polishing, cutting or sale.

100 This was confirmed by senior personnel at the WADC and it was acknowledged that the practice had been authorised and was beyond reproach. Furthermore, Sergeant Noye's enquiries revealed that a number of Argyle diamonds, possibly those marketed via the WADT, had been sold by Arslanian Freres in Antwerp to various international gem dealers who might lawfully have come into possession of quantities of the product. In other words, the marketing mechanism through Arslanian Freres, and for that matter the marketing arrangements for other diamonds coming from the Kimberley region, but not from Argyle, known as "Freeport" diamonds (Poseidon Exploration Ltd), was less rigorous than the De Beers system of distribution through the CSO. Consequently, it could provide an opportunity for other dealers or customers to assemble significant collections of pink diamonds, whether from Argyle or nearby.

101 At the material times, there were only two producers of "pink" diamonds in Australia - Argyle and Poseidon Exploration Ltd, (which subsequently became Normandy Poseidon Ltd, and which was also referred to as Bow River or Freeport), situated adjacent to the Argyle site. Poseidon Exploration Ltd was originally known as "Freeport" and specialised in the recovery of alluvial diamonds. It was located down river from the Argyle site. Argyle, although it produces some alluvial diamonds, predominately sourced its diamonds from Kimberlite pipes (extracted from the hills).

102 Corfield's suspicions were initially aroused by a report from an Argyle representative in Antwerp that an "Australian prospector" had sold to a local buyer a parcel of diamonds said to come from his Australian stake. This parcel comprised 280 carats, of which 12 carats were pink. When asked about the availability of smaller stones, the prospector is reported to have said that his stake did not have any such small stones. Argyle, and Corfield, thought this most implausible; any other diamond producing stake in Australia would, in their estimation, have been well-known within the diamond trade. Further, it was most unusual for product to comprise only good stones. In fact, in their experience, in a typical diamond operation about 95 per cent of the product was comprised of small, cheap or industrial stones. Enquiries in Antwerp had failed to identify the Australian prospector or to confirm any details about him.

103 Later, Corfield arranged for samples of the diamonds sold in Antwerp by the Australian prospector to be brought to Perth for testing. Five diamonds were brought and examined. They had been reported in Antwerp as being pre-acid but had later been cleaned in Antwerp. The testing on the Antwerp diamonds in Perth was done to compare them with a representative sample of Freeport diamonds, but the tests were inconclusive, apparently because the stones had been cleaned.

104 Background police intelligence inquiries into Roddan revealed that he had been stopped by Customs at Perth Airport on 6 August 1989 for failing to declare $107,000 worth of rough diamonds, allegedly purchased overseas but originally mined in Australia. His explanation was that the diamonds were purchased from Horovitz in Geneva. Other confidential police intelligence reports labelled Roddan a diamond smuggler; referred to reports that he had been involved in money laundering and bottom of the harbour cash stripping of companies for tax purposes; and indicated that there had been a cannabis crop detected on his property at Chittering, leading to the arrest of an ex-police officer found keeping the crop, but with no evidence linking Roddan to the crop. Drug Squad intelligence reports alleged that Roddan was involved with drug smuggling; however enquiries with his de facto wife suggested that he had never been involved with drugs. Roddan was also known to be associating with a man who had been convicted of conspiracy to sell or supply heroin.

105 There were two other allegations from Corfield which were put to the police as potentially implicating Roddan. The first was that Roddan was using hydrofluoric acid to clean pre-acid diamonds which had been stolen from the Argyle mine. The second was that Roddan and Barry Crimmins shared a secret bank account in Germany, into which the proceeds of the diamond thefts were placed.

106 Inquiries by Noye had confirmed that another diamond operation had been conducted in the Kimberley region by a company, Poseidon Exploration Ltd, at a location on the Bow River. As described above, significant quantities of pink diamonds from alluvial sources were found at Bow River and were marketed by Poseidon Exploration Ltd under the name of Freeport diamonds in Antwerp. Noye's enquiries revealed that the firm of Hollander Bros BBBA of Antwerp had sold Horovitz 73.49 carats of Bow River pink diamonds (Freeport diamonds) valued at US$225,000. Accordingly, the pink diamonds sent by Horovitz to Roddan's company, and found by the police at Newton's, were thought possibly to have come from the AFR series (diamonds labelled with the prefix "AFR") listed on Horovitz's invoice to Marblon Park Pty Ltd (Roddan) of 22 June 1989 and comprising two of the Newton diamonds.

107 For these reasons Sergeant Noye developed the view that the circumstantial case against Roddan, that he had come by the Newton diamonds illicitly, was nowhere near as strong as Corfield steadfastly maintained or, for that matter, as Sergeants Thoy and Gwilliam believed. Noye took the view that more evidence was needed to establish a case that the Newton diamonds had been stolen from Argyle. Further, at that stage of the inquiry there was actually no direct evidence that diamonds had been stolen from the mine site or, apart from the opinions of the expert diamond consultants already described, that more than six of the Newton diamonds came from that mine.

108 Roddan was obviously a suspicious character and the explanations which he had given to the police and to Argyle had undergone material changes and were not convincing. Nevertheless, it was obvious that he did have in his possession many diamonds from other sources and that, subject to the issue of identification, it was possible that some of the Newton diamonds might have come to him by legitimate means. Roddan, himself, emphatically denied being involved in the theft of, or illicit receipt of, Argyle diamonds. Crimmins had been interviewed by Thoy, Gwilliam and Corfield and also denied being involved in any way in the theft of diamonds from the Argyle mine site. His association with Roddan had only come to light well after the investigation had started, and although it was discovered in circumstances which rendered it suspicious that he had not disclosed that association earlier, it was not proof that Crimmins was involved in supplying stolen diamonds from Argyle to Roddan or to any of his associates.

109 In those circumstances, Noye took the view that there was no basis to lay charges against Roddan. In his report and in his evidence at this trial, he made it clear that, in the absence of some unexpected breakthrough, the only course was for the interpleader proceedings to be taken to their resolution. However, if that occurred, on the state of the information then known, he thought it likely that Argyle might fail to establish its case. Clearly enough these were views and conclusions which gravely disappointed Corfield, and the Argyle staff and Sergeant Gwilliam - to the point of exasperation.

110 Consequently, the points which convinced Sergeant Noye that the views of Corfield of Argyle and Sergeant Thoy about the origin of the Newton diamonds were unsupportable, may be summarised as follows:

(a) The suspect pink diamonds among the consignment held by Newton came from the Poseidon Exploration Ltd mine at Bow River (Freeport diamonds), which were purchased by Horovitz in Antwerp and dispatched by Horovitz to Roddan.

(b) Argyle's allegations that the "Argyle-type" diamonds identified in the Newton consignment come from Argyle "pipes" could not be established scientifically. This was confirmed by the most comprehensive analysis conducted by the Argyle senior expert, Christopher Brian Smith of CRA Exploration Pty Ltd on 5 July 1992 (3TB 574-580).

(c) The gem-quality diamonds dispatched by the Argyle Diamond Mine Joint Venture to the CSO (De Beers) in London were again cleaned by a secret De Beers process before being put on the market. Therefore, it could be expected that there would be some traces of adherent materials on the diamonds emerging from the Argyle mine, notwithstanding the fact that they had been "cleaned" by the acid process at the mine.

(d) In early December 1989 Roddan was interviewed by Corfield and Mr David Karpin, managing director of Argyle. Roddan, then offered to make his diamonds available to Corfield and Karpin for inspection, but that offer was not taken up.

111 In short, his reported investigations led Sergeant Noye to the belief that the diamonds which had been seized from Newton comprised stones from a variety of demonstrably different sources; that there was evidence that the so-called pink Argyle diamonds, comprising six of the group of 27, had been supplied by Horovitz and that, in turn, it was probable that Horovitz had obtained those by purchasing Freeport diamonds from a legitimate source in Antwerp; that the scientific evidence relied upon to identify other Newton stones as coming from Argyle was, at the best, equivocal and inconclusive; and, finally, that there was a considerable quantity of evidence to show that Argyle diamonds, originating from the WADT, found their way onto the market in significant quantities in Australia and elsewhere, contrary to Argyle's and Corfield's assertion that all the WADT gem-quality diamonds were dispatched to Arslanian Freres in Antwerp, and from there were used exclusively for manufactured jewellery.

112 In reaching these conclusions, it is evident that Sergeant Noye was critical of what he regarded as obdurate single-mindedness by Corfield in refusing to countenance the possibility that the Newton diamonds could be anything but stones stolen from Argyle. Further, he was critical of the conclusion of Sergeant Thoy in accepting that view without reservation, and persisting with a theory that there was a widespread network of diamond thefts operating at Argyle, through the WADT, and extending via conspiracies to the diamond market in Antwerp and Geneva. Noye plainly regarded Thoy's theories as extreme and unsupportable. He was of the opinion that Thoy was being quite unreasonable and intemperate in interpreting the directions from his superior officers to curtail or limit the scope of his inquiry as reflecting improper motives.

113 Having examined all these materials, and even with the benefit of hindsight and with the knowledge that Barry Crimmins subsequently confessed and implicated Roddan in thefts of diamonds from the Argyle mine, leading to Roddan's conviction, it cannot be said that these views expressed and recorded by Sergeant Noye in his report (Exhibit 3) were unreasonable, untenable, or inconsistent with the evidence and information available to him at that time.

114 Robert Charles Gardner, a gold prospector, had, at the time, a tailings recovery operation at Bullfinch near Southern Cross. Roddan had some financial interest in this mine. Indeed, he had told the police that part of the money which had been sent to him from Geneva by Horovitz had been used to invest in the gold mine on Horovitz's behalf. It seems to have been a small-scale operation, but produced some gold-bearing ore and nuggets.

115 In February 1990, Roddan obtained a permit under the Poisons Act 1964 (WA) to purchase hydrofluoric acid. Having done so, he then purchased 2 litres of the acid, some acid holding equipment and other materials from a chemical supplier. Both Gardner and Raelene Shaw had provided information to the police that Roddan had obtained hydrofluoric acid. Roddan claims that the acid was used to treat gold nuggets from the Bullfinch mine and also to clean personal jewellery belonging, at the time, to Raelene Shaw.

116 Sergeant Noye does not appear to have obtained any other evidence as to whether or not hydrofluoric acid could be used in connection with gold obtained from a small mine or whether it was suitable for use in cleaning jewellery. Neither of those suggestions seems to be self-evident or obvious, whereas it was known at the time that hydrofluoric acid was used for cleaning rough diamonds. There may be reason to conclude that Sergeant Noye gave insufficient attention to the potential significance of this evidence, but that was not suggested against him in the course of this trial or, so far as can be seen, from the investigations into his conduct by the IAU when he came under suspicion.

117 The allegation that Barry Crimmins and Roddan had a secret bank account in Germany came from one of the security officers at Argyle who had heard, from another security officer, of the alleged existence of this account. Noye made inquiries into this allegation through banking sources, but they do not appear to have been well directed and led nowhere. Noye raised the matter with Lynette Crimmins but she said she knew nothing of it. He also spoke with the security officer at Argyle who had heard of this matter. However, his story was not specific. It implied that Crimmins would be using a bank account in Germany, with a business partner (who turned out to be a lecturer at Heidelberg University), for money associated with their dog business and needed for Crimmins to travel to dog championships in Germany each year. Nothing further came of the inquiry.

118 Noye also reported, in Exhibit 3, further inquiries which he made into the background of Barry Crimmins. He confirmed that Crimmins had risen to the rank of Detective Sergeant in the Victorian Police Force before resigning in 1981. At the time of his resignation he had been an instructor in law at the Victorian Police Academy. Other inquiries into his background revealed that Crimmins had a tendency to drink heavily and over the last 12 months of his employment with Argyle was drinking heavily. He resigned voluntarily from Argyle, although he had been threatened with dismissal by Corfield, once the latter had discovered his connection with Roddan.

119 The only basis for suspicion against Crimmins was his alleged failure to disclose an acquaintanceship with Roddan when the matter was first raised by police officers and Corfield during inquiries at Argyle in Crimmins' presence. He denied that the name Roddan was mentioned on that occasion, but added that if it was it "went over his head". There was nothing in his background or lifestyle which suggested that he was living above his apparent limited means.

120 Noye spoke to Crimmins by telephone when the latter was in Shepparton, early in the course of the inquiry. Crimmins called at the police headquarters at Perth in May 1992 to visit Noye, who was then away on a training course, and was not told of the visit until after Crimmins had returned to Victoria. Noye spoke to Crimmins again by telephone on 24 July 1992 in Victoria. He was co-operative, and maintained that he left Argyle on good terms and eventually proposed to return to Western Australia.

121 Noye also enquired about Crimmins from the general manager of the Argyle mine, who reported favourably upon Crimmins and said that he had reservations over the accusation that Crimmins had been complicit with Roddan. As a consequence, by this time Noye was clearly sceptical about Corfield's views and theories and indeed reported (Exhibit 3, 2TB 198): "I'm convinced that Corfield has constructed a theory and then tried to make the facts fit into that theory".

122 Noye also investigated and reported on Raelene Shaw, the former de facto wife of Roddan. He concluded that Shaw was disposed to make damaging allegations against Roddan and had great animosity towards him. He learned from her that Roddan had been found to have a significant quantity of unlicensed firearms hidden in the roof of his house, for which he was prosecuted and fined. It was she who reported Roddan's possession of hydrofluoric acid. She also alleged that Roddan was associated with a police officer in relation to his endeavours - Noye took this to be a reference to Crimmins the former police officer from Victoria. He took Raelene Shaw's persistent allegations against Roddan as a demonstration of her personal hostility towards Roddan and observed that there was nothing specific in them which might tend to incriminate Roddan. He was satisfied that had Raelene Shaw possessed any such information she would have revealed it. He reported that he was inclined to disregard anything Shaw alleged unless it were confirmed by hard evidence.

123 Gardner, the gold prospector from Bullfinch, was also reported on by Noye. It was Gardner who went to Argyle in late 1991 and made allegations against Roddan to the superintendent of security, John Burton. The account given by Argyle staff was that Gardner reported that Roddan had inquired of him whether he knew of anyone at the Argyle mine who could get him rough diamonds "under the counter". Gardner offered to provide information to Argyle in return for substantial financial assistance; that is, by purchasing a gold lease which was then the subject of a dispute between Gardner and one of Roddan's companies. Argyle rejected this. In February 1992 Gardner again visited Argyle and delivered a parcel containing five rough pink diamonds, which were part of a larger parcel that Roddan had asked him to safeguard. Again, Gardner asked for a large amount of money from Argyle but was only offered payment of proved expenses. When interviewed by Noye, in the company of Gwilliam and an Argyle security officer, Gardner said that he took Roddan's diamonds to Argyle because he believed they were illicit. He was engaged in a long-running civil dispute with Roddan over the Bullfinch mine and was constantly in touch with Raelene Shaw and anxious to "protect her interests". The diamonds which Gardner had delivered to Argyle were said, by Roddan, to be five of the pink stones, originally in the Newton batch, seized by Sergeant Thoy but which were later returned to Roddan. Roddan had complained that Gardner had stolen those diamonds and should be charged. Gardner, however, had alleged to Argyle that the diamonds which he had seen in Roddan's possession were "dirty" and that Roddan had obtained and used hydrofluoric acid in an attempt to clean them. Noye was sceptical about Gardner's reference to "dirty diamonds", and did not regard Gardner as a credible informant.

124 At this point it can be seen that Noye had received, but had discounted, allegations from various sources which reflected adversely upon Roddan, including:

(a) Evidence from Shaw and Gardner that Roddan had obtained hydrofluoric acid to use to clean diamonds. Noye had in fact confirmed that Roddan had obtained hydrofluoric acid, and a licence for its use, but had accepted Roddan's explanation (in the absence of any expert or scientific evidence as to its credibility) that it was intended for use in treating gold samples and Raelene Shaw's jewellery.

(b) There was evidence from Gardner that he had seen Roddan in possession of quantities of "dirty" diamonds and had been asked by Roddan whether he knew anyone at the Argyle mines who could supply rough diamonds under the counter. This was simply rejected because of Noye's adverse view about Gardner's credibility.

(c) There was clear evidence of a long-standing association between Crimmins and Roddan in connection with dog competitions, and of Barry Crimmins visiting Roddan's house. When coupled with Crimmins' failure to disclose any knowledge of the acquaintanceship with Roddan at the early stages of the inquiry, this must be regarded as suspicious and as providing a link between the major suspect and a person at the Argyle mine who was in a position to supply illicit diamonds. Noye seems to have accepted Barry Crimmins' denials of any theft or misconduct in relation to diamonds at face value, with only relatively minor enquiries into Barry Crimmins' background, lifestyle and financial affairs.

(d) It is also the fact that, perhaps with good reason, Noye rejected the assertions from Corfield, and the conclusions of Sergeant Thoy, that it was practically impossible for Roddan to have legitimately come into possession of the number and nature of Argyle diamonds said to comprise the batch of gems seized from Newton.

125 For reasons previously canvassed, I am satisfied that, on this issue, there was reason to believe that Corfield's and Thoy's conclusions concerning the alleged diamond thefts, were overstated and could not be established to the degree, or with the confidence, that they were advanced. But, nevertheless, there were many features of Roddan's explanations about how he came into the possession of those diamonds from Horovitz, or from Hong Kong or Singapore, which would appear to strain credulity. These combinations of factors, none of which, admittedly, was sufficient alone to provide definite proof against Roddan, nevertheless would seem to combine collectively to establish a very real concern and suspicion about the propriety of Roddan's conduct. It may not have been sufficient to allow charges to be laid, but it was nevertheless a case of some substance which appears to point, rather persuasively, to illicit dealing in Argyle diamonds by Roddan which, at the very least, would seem to generate a need for more extensive and thorough investigation.

126 Further suspicion against Roddan was generated by inquiries from the jeweller Charles Edward Devenish (of Charles Edward Jewellers). It was Devenish who introduced Roddan to Newton, the diamond cutter (see 2TB 218-221 and 3TB 459-463). Originally a customer of Devenish's jewellery shop in the Hay Street Mall, Roddan offered parcels of cut and polished diamonds to Devenish for purchase in late 1988, which Devenish declined. During 1989 Roddan said to Devenish, in what the latter took to be a joke, that he could get around the security at the Argyle diamond mine, and repeated this apparent joke a week or so later. A little later in 1989, Roddan showed Devenish a parcel of diamonds which Roddan claimed to have obtained from Switzerland, but which Devenish thought included several of a distinctly Argyle type. Devenish refused to take the diamonds or to cut or polish them at Roddan's request, referring him, instead, to Newton. According to Devenish, Roddan came to Devenish's shop several weeks later and showed him three or four rough pink diamonds which he said he had obtained from the Argyle mine through a mate at the mine who was stealing them.

127 There were thus two such occasions when Roddan showed Devenish rough diamonds, which he claimed came from the Argyle mine, but Devenish avoided the subject and refused to deal with Roddan. However, Noye did not accept Devenish as an honest witness and recited a background of financial dealings between Devenish and Roddan in relation to their other business ventures which led to civil litigation between Devenish and Roddan.

128 Noye put these allegations to Roddan, who denied some of them and admitted others, saying that he had told Devenish untruths to mislead him and so that they would get back to Corfield and aggravate him. Devenish was an associate of Horovitz and had also seen Roddan in possession of large quantities of other diamonds. However, Noye's conclusions were that Devenish had been "set up" in various respects by Roddan in order to get money out of him and to facilitate access to the international diamond market, and taken on its own, Devenish's evidence did not have any conclusive probative value in relation to an alleged conspiracy between Roddan and Crimmins.

129 This may be so but Roddan's conduct, as reported by Devenish, involved direct admissions of being involved in a conspiracy to steal diamonds from Argyle, and, plainly, attracted great suspicion by Devenish and a desire to distance himself from Roddan. This was another major pointer to criminal conduct by Roddan and it is difficult to see how even on its own, still less in combination with the other evidence then available, it could fail to engender deep suspicions about Roddan's complicity in stealing from Argyle.

130 Next, in Exhibit 3 (2TB 222-281), Noye conducted a detailed review of the allegations of improprieties within the WADT concerning the distribution of Argyle diamonds and the failure to account for significant quantities of WADT diamonds. This was one of the aspects of Thoy's report which Noye had been instructed to investigate and appraise. It is not directly pertinent to this litigation and, therefore, need only be dealt with briefly.

131 Significantly, Arslanian Freres of Antwerp had been engaged by the WADT to take its 5 per cent share of the run-of-the-mine diamond production at Argyle, and to purchase or facilitate the purchase of those diamonds in Antwerp or elsewhere in the world at the best price obtainable. At times material to the Argyle inquiry, diamonds of all grades, including those of the same quality as the suspect stones found with Newton, were sold to various firms, with worldwide sales connections, by Arslanian Freres. The WADT records had been examined and led to the conclusion that the suspect diamonds could well have originated from diamond sales made by Arslanian Freres on behalf of the Trust.

132 Furthermore, after lengthy and complicated audit examinations and supplementary audits, the auditors reported that there were a number of deficiencies in the books and records of the WADT, in particular, in the records showing the stock controls for diamonds received or disposed of. Despite this, the auditors concluded that the appearances were that physical stocks of diamonds were verified by reference to a year end stock count and they recommended an improvement in the stock control records and procedures.

133 The inquiries also revealed that not all the WADT diamond product was in fact sent on to Arslanian Freres. There was at least one major piece of diamond conglomerate which was sold by the WADT to Argyle itself. Records also revealed that sales of rough diamonds were made to a number of businesses, including five well-known established jewellery or diamond businesses in Perth, including Charles Devenish and Solid Gold Jewellers. The inquiries also revealed that Arslanian Freres had been asked whether they had ever written to the WADT, as reported by Thoy, complaining of a deterioration in the quality of the diamonds sent on to Antwerp for marketing from the Trust. The records revealed that one of the Arslanian brothers had been asked about this on several occasions, and had checked his records, but could find no trace of any such letter. However, one of the senior staff at the WADT recalled that he had in the past had a conversation by telephone with a representative of Arslanian Freres who had complained about a deterioration in the quality of WADT diamonds being dispatched for marketing. It was also confirmed that the high quality pink diamonds among the WADT stock were removed in Perth and transmitted to Arslanian Freres separately every six months and, after polishing in Belgium, were sold directly to customers of that firm.

134 Sergeant Noye's investigations also included the matters raised by Sergeant Thoy concerning East-West and their inadequate accounting records in Kalgoorlie. Considerable detail of these investigations is to be found in Exhibit 3. In the end, the conclusion was that there were lax accounting records established and maintained. However, nothing arising from the operations of East-West in Kalgoorlie could have provided a source for, or an explanation of, the Newton diamonds.

135 The investigation of the affairs of the WADT also revealed examples of Trust diamonds being sent to Antwerp which had not been properly cleaned and which needed to be put into acid by Arslanian Freres on arrival.

136 In Sergeant Noye's conclusions and recommendations in his final report (Exhibit 3, 2TB 67), he reported, with regard to the three areas of the inquiry, that there was:

"1. Insufficient evidence to sustain charges against the principal suspect Roddan (Lindsay Gordon) ... in the matter of possessing suspected illicit Argyle diamonds matter referred to civil interpleader proceedings in District Court, Perth;

1. Insufficient evidence to connect any person with the offences of conspiracy or theft in relation to the alleged ongoing theft of diamonds from the Argyle mine site; and
2. Insufficient evidence to substantiate the allegation of theft of diamonds from the West Australian Diamond Trust as indicated by audit of books and records of that instrumentality."

And, more significantly for the purposes of the present proceedings, in his final conclusion (Exhibit 3, 2TB 288) Noye wrote:

"I can categorically state that I am confident that at no future time will any evidence be disclosed that will provably show that:

1. the diamonds claimed by Jucara Pty Ltd (Roddan) were illicitly removed from the control of the complainant, Argyle Diamond Mines Pty Ltd by any person; and
2. there is any valid evidence of the existence of an organised consortium of mine staff and, or others, engaged in the theft of diamonds from the Argyle mine site or alluvial areas between 1988 and 1990."

137 All the indications were that Sergeant Noye's investigation and his report was comprehensive and thoughtful. With the benefit of hindsight one would certainly now question many of the conclusions, in particular, the readiness to accept explanations given by Roddan where they differed from assertions made by other persons against whom no reasonable grounds for suspicion could be entertained. These would appear to be errors of judgment which were probably contributed to in part by a developing conviction by Noye that Corfield and Thoy had significantly overstated their cases and were obstinately adhering to their accusations in the face of indisputable facts, making parts of their arguments untenable. Apart from this tendency to give credulity to Roddan, to a greater extent than may have been justified, there do not seem to have been any areas of the investigation which were not pursued except, perhaps, a more assiduous examination of Barry Crimmins.

138 In connection with the identity, sources and particular features of the Newton diamonds, the report seems to be very comprehensive, detailed and justified. It was true that the scientific evidence as to identification was inconclusive. It was the case that Horovitz had sent pink diamonds of the Argyle kind to Roddan. It was the case that pink Argyle diamonds were in the market in Australia via the WADT, and in Europe via Arslanian Freres. It was also the case that diamonds of similar appearance and quality were distributed in Europe from Poseidon Exploration Ltd (Freeport) sources. Further, some of the Newton diamonds were clearly not of Argyle origin and that Roddan had, over the time in question, obtained many diamonds from many sources.

139 The investigation in relation to the alleged shortcomings with the WADT inventory of diamonds and stocktaking was also comprehensive and, in the end, was accepted in all quarters. Not only did it establish that there was no justification for any continued police investigation in relation to the operations of the WADT, but it revealed that Sergeant Thoy's preoccupations with the WADT, and the imagined obstruction due to impropriety on the part of his superior officers in discouraging him from proceeding with that investigation, were quite wrong. That, in itself, was a conclusion which tended to detract from the persuasiveness of the other assertions advanced by Thoy and Gwilliam.

140 The conspicuous feature of the Noye report, which in the end largely gave rise to the charges against him, was the unequivocal recommendation that there was no basis to conclude that Roddan or Crimmins were involved in any theft or conspiracy to steal diamonds from Argyle, and that no evidence would ever emerge to establish that they did - a conclusion which, if accepted by Noye's superiors, would almost certainly lead to the investigation into Roddan's alleged offending being concluded. Whether that was naive or corrupt was the ultimate question, but there can be no escape from the following fact at the time that report was written:

(a) Roddan denied any illegal conduct in relation to Argyle diamonds.

(b) Barry Crimmins steadfastly denied any corrupt involvement in the stealing or supply of diamonds from the Argyle mine.

(c) No diamonds which could positively be identified as having been stolen from the Argyle mine had been found in the possession of either Roddan, Crimmins or any associate.

(d) Barry Crimmins was not known to have been involved in any previous or other form of criminal activity.

(e) There was no sign of any payment, unexplained wealth or extravagant lifestyle by Crimmins which might reflect unlawful payments.

(f) There was no demonstrable evidence that diamonds from Argyle had gone missing (that is, that stock was short), although, of course, thefts of this kind would almost certainly occur before the existence of the diamonds could be recorded.

(g) There was no suggestion that information obtained by Thoy had been withheld, suppressed or distorted, or that there were specific areas of investigation which should have been pursued which were neglected.

141 On the basis of the information available at the time, I am inclined to accept the view of Sergeant Noye that there was, then, no evidence available to justify the laying of charges against Roddan for the theft of diamonds, whether the Newton diamonds or other diamonds, from Argyle - at least not the institution of a prosecution which could be regarded as having any reasonable prospect of success.

142 The tendentious content of the report, undoubtedly, was the observation by Noye that no such evidence would ever be discovered, leading, in effect, to his recommendation that the inquiry should be abandoned. A more prudent and justified recommendation would have been that, although there was nothing to justify the laying of charges against Roddan or anyone else in respect of a theft of diamonds from Argyle on the information then available, Roddan's conduct was deeply suspicious and that, even if no further investigations could be conducted at that point, the matter should be left open against the possibility that further information might be obtained in time which would enable the suspicions against Roddan to be confirmed.

143 The role of Richard William Corfield, Argyle's manager of security, in investigating the possible source of unknown rough pink diamonds which appeared in Antwerp has already been described. The possible existence of a systematic operation for stealing diamonds from the Argyle mine was very worrying to the Argyle management. Thefts would be of the best quality gems and, accordingly, the most profitable. There was little that Argyle could do to identify its diamonds until they had been treated and sorted and, accordingly, thefts during the early processes of treatment could easily go undetected. The impact on the revenue flow, and the profitability of the mine as a whole, was likely to be very serious. Accordingly, for Corfield, and the Argyle staff, elimination of any systematic stealing was the first and highest priority. If there was a stealing operation it needed to be identified and smashed. Recovery of stolen diamonds, while desirable, was always secondary to this main objective. Accordingly, while Argyle was unquestionably concerned with establishing its claim to, and recovery of, the Newton diamonds, it was far more interested in discovering any flaws in its own security and in identifying the person or persons involved in any thefts.

144 Corfield expressed as much during the course of a meeting which he, and the managing director of Argyle, David Karpin, held with Roddan at the Argyle offices in West Perth. A transcript of that meeting is part of Exhibit 3 (2TB 179 - 191) and, although it is there undated, the probabilities are that that meeting occurred on Friday, 2 February 1990 (see BCI running-sheet - attachment 7 to Exhibit 3, 3TB 489 - 504). There is no doubt that Argyle, through Corfield and others, pursued its own inquiries, both in Western Australia and internationally, during the time when the police investigation was underway. Corfield does not appear to have made any attempt to conceal this and was communicating with the police, from time to time, about the results of his inquiries. Corfield himself, went to Geneva to interview Horovitz. Although he was graciously received and allowed to meet Horovitz, the latter's co-operation did not extend to providing statements for the investigation in Western Australia or giving evidence. It has also been noted how Argyle contributed financially to the costs of police officers travelling to the Argyle mine site to conduct investigations in late 1989. Argyle also contributed financially to the audit of the affairs of WADT. Later, it also contributed financially to the establishment of a special police task force, headed by Inspector Lavender and Sergeant Gwilliam, to pursue the third stage of the inquiry. That assistance involved the provision of offices, staff, computers and other sundry equipment. All this was disclosed and was, apparently, approved by senior levels of the Police Force. It reflects just how determined Argyle was to detect the stealing which, by then, its security officers, Corfield and Burton, were convinced existed. The frequent access which Corfield and Burton, together with other Argyle staff, had received to high levels of the Police Force, was somewhat uncommon and, in some quarters within the police hierarchy, this created resentment at the appearance that Argyle may be gaining special treatment - (see the evidence of Assistant Commissioner (Crime) Ayton at t/s 1833; 1858 and 1864). This, as shall be noticed later, was another ingredient which fuelled animosities between different police officers about how the inquiry should be conducted.

145 First, Sergeant Thoy, and then Sergeant Gwilliam, formed close working relationships with the Argyle security officers and personally came to accept the theories and opinions which Corfield and the others were advancing. Sergeant Noye, on the other hand, operated on a more independent basis and treated Corfield with reserve. In a number of respects, Noye's attitude seems to be well justified. He succeeded in establishing, for example, that the scientific analysis reports that the Newton diamonds must have come from Argyle were inconclusive or unreliable. He also established that, contrary to Corfield's assertion, there were indeed significant quantities of Kimberley diamonds, not only from Argyle, but from Bow River (Freeport), circulating for sale among diamond dealers in Antwerp and among jewellers in Perth and elsewhere in Australia. Noye's arm's length method of dealing with Corfield undoubtedly caused resentment between those two and, on the evidence available to me, probably between Noye on the one hand and Gwilliam and his supporters on the other.

146 The financial support by Argyle for the investigation of the suspected stealing plot did not stop with the arrest and conviction of the two Crimmins and Roddan. It emerged in the cross-examination of Lynette Crimmins in these proceedings that her legal representation, both by solicitors and by counsel, was being financed by Argyle. No effort was made to explain the reason for this. It has not been suggested in any quarter that it was improper. However, it does indicate a continuing measure of support, of a considerable magnitude, by Argyle for Lynette Crimmins which, she suggested, had gone on for quite some time.

147 Neither of these present defendants sought to call Corfield nor, for that matter, any other officer from Argyle. However, they informed the court (by consent of the plaintiff) that Burton had died some time before the trial (t/s 2025). Nor was any attempt made by either defendant to adduce any scientific evidence, from Argyle or elsewhere about the ownership or source of the Newton diamonds which had been the subject of so much analysis by, and on behalf of, Argyle at the early stages of the investigation. This was in circumstances where, in the very report in which he submitted to his superiors (Exhibit 3) and which provides much of the foundation for the allegations of corrupt concealment against Sergeant Noye, he advanced and suggested how the scientific evidence about the origin of the Newton diamonds was inconclusive, and how other information which came from Corfield was overstated. There is, therefore, no basis in this case to challenge the conclusions which Sergeant Noye reached about the difficulties of establishing that the Newton diamonds had, in fact, been stolen from Argyle, or for that matter that significant quantities of Argyle and other Kimberley diamonds were legitimately available for sale on the international gem market and in Australia.

148 It was not necessary for either of the defendants in this action to attempt to establish that the Newton diamonds had come, probably illicitly, from the Argyle mine. Nor, for that matter, was it necessary to show that Corfield's theories that a collection of gem-quality pink Argyle diamonds, such as constituted by the Newton diamonds, could not be assembled by any diamond dealer legitimately under any circumstances. It is perfectly sufficient for their defences of these actions to put in issue, as they have, the questions of whether or not either of them instituted or caused to be instituted the prosecutions against Sergeant Noye, which ultimately were withdrawn; whether or not there was reasonable and probable cause for laying such charges; and, further, whether they were actuated by any form of malice in doing what they did.

149 All that is so, but I have been left with the distinct impression that the full account of the relationship between Corfield and/or Burton from Argyle, and Barry and Lynette Crimmins, and between those two and Sergeants Thoy and Gwilliam, has not been revealed in these proceedings. There is a dimension to their mutual dealings which shows a far greater degree of collaboration between Argyle and Sergeants Gwilliam and Thoy, and, more particularly, between Argyle and the two Crimmins, than has been disclosed. In particular, the influence which the Argyle security officers were able to exert upon Sergeant Gwilliam, and through him upon the police, at critical stages of this inquiry has not, in my view, been fully or adequately disclosed. All the indications are that it was not inconsiderable.

150 This report (Exhibit 1) of 54 pages, including annexures, is Sergeant Noye's first report outlining the results of his preliminary investigations into the Argyle diamond affair. According to Noye, he had been commissioned by Deputy Commissioner Zanetti on or about 4 February 1992 to investigate and report on the earlier work which had been done by the police for the Argyle inquiry. That earlier report, prepared by Sergeant Thoy with the assistance of Sergeant Gwilliam had not led to any further action. Sergeant Thoy had become disgruntled, had withdrawn from the inquiry and was making various allegations against senior police officers alleging impropriety on their behalf for failing to act on, or to provide resources for, the inquiry which he had commenced.

151 On being instructed to look into the Argyle matters, Sergeant Noye examined the Thoy/Gwilliam report; spoke to Gwilliam and to Thoy; reviewed all the statements; interviewed personnel from Argyle, including the manager of security, Corfield; and, liaised with the Australian Federal Police. His ensuing report (Exhibit 1) proceeds on the footing that there was a large-scale operation of diamond stealing from Argyle by staff employed at the Kimberley mine site and co-ordinated from the outside to distribute the diamonds to Roddan. Various members of the Argyle staff had been identified as possible suspects. However, the principal suspects were Barry Crimmins, as the co-ordinator of the site thefts, and Roddan as the recipient of the stolen gems in Western Australia.

152 Reference was made to the quantity of gems found by the police and seized from Newton at Fremantle, who had received them on consignment from Roddan. There was the dispute then pending between Roddan, on the one hand, and Argyle, on the other, over the ownership of these diamonds. The details of this have previously been described but were set out in full in Noye's first report.

153 Sergeant Noye's first report also referred to allegations suggesting that there had been large-scale thefts or misappropriations of Argyle diamonds through the WADT an offshoot of the WADC which had been set up as part of the WA Inc government enterprises. In particular, the activities of East-West, at Kalgoorlie, had been called into question. Audits, performed by Coopers & Lybrand, revealed very lax, and sometimes non-existent, accounting records for the gem-quality diamonds processed by that company and a number of irregular "writings off" of diamonds from its books.

154 As well as identifying the probable existence of systematic stealing of gem-quality diamonds from the Argyle mine by staff, and co-ordinated by Crimmins, for the benefit of Roddan, Noye's first report suggested that there may be stealing on a larger scale from the WADT and elsewhere. He noted that the police had received information alleging that a number of untraced (stolen) diamonds had been supplied to figures prominent in the WA Inc investigation, which was then the subject of the Western Australian Royal Commission into the Commercial Affairs of Government ("WA Inc Royal Commission"). Noye recommended a continuation of the investigations on several fronts, identifying Roddan and Crimmins as the major suspects, but he also suggested other concurrent courses of inquiry.

155 All the indications are that this is a serious and objective report and that Noye was satisfied that there was serious criminal conduct which warranted follow-up. He had caused inquiries to be made into the whereabouts and circumstances of Barry Crimmins. These revealed that Crimmins' current whereabouts were not known, that he had sold his home in Victoria and that it was thought that he might leave Australia to live in the United Kingdom where he had another brother. Customs had been alerted and his name had been placed on the watch list at departure points in Australia.

156 This report recognised that there were probably grounds to criticise the adequacy of the previous WA police investigations into the complaints of stealing of diamonds from Argyle beforehand. It also recognised that Thoy had become obsessed with the belief that he was being frustrated in his inquiries by the actions of his police superiors. As a result, Thoy had begun to act strangely and to "speak in riddles". Thoy had been acting very secretly towards the end of his investigation because he believed that the results of his enquiries were being corruptly leaked through the Police Force to the suspect Roddan. This, in turn, added to the differences between Thoy and his immediate superiors.

157 Thoy was correct in believing that information about his investigation was being leaked but he was wrong about the source of the leak. The initial inquiry conducted by Sergeant Thoy had been done in close conjunction with Corfield and Burton, the senior security officers of Argyle. In the process they liaised closely with Barry Crimmins, who was at that stage, a trusted senior security officer of Argyle. During this time, unknown to Argyle and to the police, Crimmins was in frequent communication with Roddan, and was passing on details of the investigation to him. That is how Roddan became aware of the police activities.

158 This accounts for some of Thoy's misgivings and suspicions about the integrity of his investigation. It also reveals that, in this regard at least, he was wrong in directing his mistrust at his superiors. The first Noye report also refers to Sergeant Thoy's pending civil process against "a number of commissioned officers of the crime portfolio" but deliberately refrains from mentioning any detail about that.

159 Taken as a whole, his first report shows that Noye had apparently undertaken an assiduous and objective appraisal of the state of affairs and was satisfied that there was probably a serious and systematic campaign of stealing from Argyle going on, and that Barry Crimmins and Lindsay Roddan were the principal suspects involved. He had concluded that further investigations would be likely to lead to evidence which would implicate them directly. In this regard, there are several references to named sources from which it was hoped that further co-operation would come. That is "from people who were prepared to roll-over" and provide further statements or evidence which would directly implicate both Crimmins and Roddan. Further, the tenor of the report suggests that Sergeant Noye had a certain degree of sympathy for Sergeant Thoy's obsessions about being blocked while conducting his inquiry. The report also reveals what appears to have been a satisfactory working relationship with Thoy and Gwilliam and a respect for the work which those two officers had performed.

160 Noye produced that report to Deputy Commissioner Frank Lionel Zanetti on or about 20 February 1992 and Zanetti later provided a copy to the Commissioner of Police. There is a note on the exhibit, accepted as authentic, that Commissioner Brian Bull had examined the report on 8 March 1992 having met with Zanetti for that purpose. Commissioner Bull directed that the investigation should proceed; that consideration be given to the resources needed to do so; and, that the then current Royal Commission should be briefed on that development. All that led to Noye being directed to re-open the Argyle inquiry, with the assistance of Sergeant Gwilliam as his deputy.

Meetings between Sergeant Noye, either alone or with others, with Lindsay Roddan

161 One of the areas which generated suspicions about the conduct of Sergeant Noye was the frequency with which he met the principal suspect, Lindsay Roddan, alone. It was suggested that this was irregular police practice; that it compromised the inquiry; that it was so professionally indiscrete as to be itself suspicious; and, that it was during these meetings that improper arrangements developed and were agreed, expressly or tacitly, between Roddan and Noye, which led the latter into recommending, corruptly, that the inquiry be written-off.

162 It is necessary, therefore, to place these various meetings, so far as the evidence has disclosed them, in a wider chronology:

• 4 February 1992 - Noye commissioned to reopen the Argyle diamond inquiry with Gwilliam as assistant.
• 12 February 1992 - Noye and Gwilliam meet with Corfield and Burton at Argyle's office in Kings Park Road, West Perth.
• 14 February 1992 - Noye has an interview with Superintendent William Dunlop at WAPOL of the National Crimes Commission.
• 18 February 1992 - Noye interviews Australian Federal Police officers Nigel Frederick Spitz and Stephen John Lamborn at Perth.
• 3 March 1992 - Noye telephones Barry Crimmins in Victoria.
• 4 March 1992 - Noye interviews Raelene Shaw (Roddan's ex de facto) and Robert Gardner (miner at Bullfinch).
• 6 March 1992 - Superintendent Ayton seeks a briefing from Noye and Gwilliam on the inquiry.
• 10 March 1992 - Roddan telephones Noye to enquire about diamonds seized from Newton's premises.
• 11 March 1992 - Noye meets with Roddan at Gioia Café, Northbridge, alone - Noye takes notes.
• 16 March 1992 - Noye speaks with Roddan to arrange meeting with Superintendent Ayton.
• 18 March 1992 - Meeting between Superintendent Ayton, Noye and Roddan at L'Alba Café, Northbridge. Ayton takes a secret tape recording device to record the conversation. The tape is subsequently lost or destroyed.
• 19 March 1992 - Meeting at L'Alba Café, Northbridge, between Roddan, Gwilliam and Noye.
• 23 March 1992 - Noye and Gwilliam execute search warrant at Argyle's office in West Perth, and seize five diamonds and a statement from Gardner to Burton of Argyle.
• 25 March 1992 - Noye and Gwilliam meet Roddan at L'Alba Café and provide Roddan with documents requested for the interpleader including soil report analysis annexures.
• (Later the subject of one of the Court of Petty Session charges and police disciplinary charges against Noye.)
• 10 April 1992 - Noye speaks to Roddan's solicitor Anthony Cheng Hai Quahe of Jackson McDonald at L'Alba Café, Northbridge. Roddan is present.
• 13 April 1992 - Noye and Gwilliam meet with Argyle staff at Freehill Hollingdale & Page.
• 24 April 1992 - Noye and Roddan speak at L'Alba Café re the interpleader action. Roddan complains that Gardner had stolen five diamonds from the mine and this precipitates an investigation by Noye concerning Roddan/Gardner which was inconclusive (see 1TB 23).
• 5 May 1992 - Noye and Gwilliam summoned by Assistant Commissioner (Crime) Scott, Commander Hancock of the CIB and Superintendent Dalton to report on progress and to discuss Roddan.
• 6 May 1992 - Roddan attends CIB offices in Beaufort Street and signs statement of complaint against Gardner in the presence of Noye and Gwilliam.
• 7 July 1992 - Roddan telephones Noye with complaints of offences against Roddan (for possession of firearms). Noye referred Roddan to the CIB and did not investigate the allegations.
• 22 July 1992 - Noye interviews Roddan at L'Alba Café re the interpleader action.
• 23 July 1992 - Noye meets with Roddan at Gioia Café, Northbridge, at Roddan's request. Mr Trainor (solicitor for Roddan) had asked for a copy of Noye's documents for discovery in the interpleader.
• 10 August 1992 - Superintendent Storm and Noye interviewed at office of the WA Inc Royal Commission by assistant counsel Mr Rowe, about the status of the inquiry, suspects, flawed soil analysis.
• 20 August 1992 - Noye meets with Roddan alone at Gioia Café, Northbridge, and interviews him re the interpleader action.
• 27 August 1992 - Superintendent Dalton and Sergeant Noye summoned to interview with Assistant Commissioner Ayton. Noye gives Ayton draft copies of his final report - returned later with minor (insignificant) amendments.
• 1 September 1992 - Noye speaks to Roddan about bank accounts (local and overseas) and overseas purchases of dogs. Roddan denies the existence of any such bank accounts.
• 2 September 1992 - Noye interviewed Lynette Crimmins and obtained a signed statement from her regarding Barry Crimmins and Roddan.
• 3 September 1992 - Noye seeks information from Mr Mactaggart, solicitor at the Crown Law Department, regarding documents for the interpleader action.
• 3 September 1992 - At 2 pm - Noye receives a telephone call that Lynette Crimmins' unit at 94 Lincoln Street, Highgate, has been broken into. He calls forensic police officers and attends at the scene.
• 10 September 1992 - Noye speaks to Barry Crimmins by phone in Victoria. Advises him that the inquiry is concluding but asks for any further relevant information - none received.
• 23 October 1992 - Noye telephoned by Acting Superintendent William Round (staff officer to Assistant Commissioner (Crime) Ayton) who wants the report for binding.
• 26 October 1992 - Noye attends the office of Ayton with Round to discuss the final report.
• 27 October 1992 - Noye delivers the final report to Ayton with a copy to the CIB Executive.
• 29 October 1992 - The three volumes of the Noye report are delivered to Detective Sergeant Lampard, staff officer to Commander Hancock.
• 29 October 1992 - Noye goes on leave. Travels to Victoria.
• 19 November 1992 - Noye meets Crimmins at Shepparton in Victoria without disclosing visit to police in Perth. Meeting held in presence of a Mr Cosgriff, a local Shepparton Magistrate. Noye stays overnight with Crimmins in Shepparton.
• 10 January 1993 - Noye recommences duty in Perth.
• 19 January 1993 - Noye recalled to duty.

• 19 January 1993 - Lynette Crimmins alleges that Roddan and Noye are corruptly involved in police activity to terminate the Argyle inquiry in return for the payment of bribe of $200,000.
• March 1993 - The third Argyle inquiry established, ostensibly under Inspector Lavender, but largely conducted by Sergeant Gwilliam.
• 17 March 1993 - Assistant Commissioner (Crime) Ayton contacts Noye to arrange a meeting.
• 18 March 1993 - Meeting between Assistant Commissioner (Crime) Ayton and Noye in the presence of Superintendent Alan Watson of IAU. Discuss allegations made by Lynette Crimmins.
• 19 March 1993 - Noye attends IAU and is interviewed by Superintendent Watson and Inspector Robbins.
• 19 March 1993 - Robbins tells Noye that IAU suspects that Noye was sharing a bribe of $200,000 given by Roddan.
• Noye complains about this to Deputy Commissioner Zanetti.
• Superintendent Max Kiernan, who is said to have been implicated in the bribe, also makes complaint.
• It emerges that Gwilliam is feeding information to Lynette Crimmins.
• 22 March 1993 - Meeting between Deputy Commissioner Zanetti, Superintendent Kiernan, Sergeant Noye, Assistant Commissioner (Crime) Ayton about complaints made against Gwilliam. Noye demands a full investigation.
• 23 March 1993 - Noye submits a report to Ayton denying any involvement in alleged corruption. Noye later approaches Gwilliam, who denies saying there had been a bribe (see Exhibit 4 (6TB 1477-1479) Report 23 March 1993 Noye to Ayton).
• 8 April 1993 - Noye visits Superintendent Ayton re IAU enquiry. Noye demands that the matter be fully investigated.
• 27 April 1993 - Superintendent Watson contacts Noye and asks for copies of documents sought by Roddan for the interpleader.
• 29 April 1993 - Noye provides document to Superintendent Watson.
• 10 August 1993 - Roddan arrested by Detective Sergeant Gwilliam and others.
• 11 November 1993 - Noye suspended from duty and charged on summons with three offences.
• 22 November 1993 - Noye appears in Perth Court of Petty Sessions on three charges which are adjourned.
• 29 November 1993 - Noye served with four internal disciplinary charges by Inspector Dawson (10TB 2260-2265).
• 14 February 1994 - Noye charged with three counts of fraud with respect to Lynette Crimmins' insurance claims.
• 17 February 1994 - Noye appears in Perth Court of Petty Sessions on three fraud charges.

The turning point in the Argyle diamond theft investigation

163 The report of Sergeant Thoy of 14 December 1990 (Exhibit 149) and the final report of Sergeant Noye (Exhibit 3) of 16 September 1992 effectively document the progress of the various police investigations up until September 1992 and were, as already described, inconclusive; the latter recommending that no evidence was likely to emerge to justify charges against Roddan, Crimmins or others.

164 Noye had submitted his final report (in draft form) for scrutiny by Assistant Commissioner (Crime) Ayton in September 1992 and that draft had been given by Assistant Commissioner (Crime) Ayton to his deputy, Superintendent Storm. Storm had read it and submitted a note upon it to Ayton who had also examined it. No faults were found by Storm, nor any significant criticisms made, and the report remained with the senior officers of the police. Ayton, after discussing the matter with Deputy Commissioner Zanetti, decided to conclude the investigation. He told the disappointed Argyle representatives of his decision.

165 All that changed following the events of 19 January 1993.

166 After separating from her husband in mid-1990, Lynette Crimmins struck up a relationship with Roddan while Barry Crimmins moved to Victoria. The Roddan/Lynette Crimmins relationship appears to have been a tempestuous one in which Roddan exploited Lynette Crimmins. In various ways he persuaded her to give or lend him money, in the end amounting to over $84,000, which was all that Lynette Crimmins had left from the proceeds of her large award for damages for personal injury received some years before. Lynette Crimmins was being given diamonds by Roddan. She was also recruited to sell diamonds to pharmacists and others whom she met through her work as a sales representative. However, her financial difficulties increased as Roddan was not repaying her money and he became abusive towards her. She lost her house, her only remaining asset of any significant value, as a result of dealings with Roddan, and began to drink heavily. She says that Roddan forced her to work in a brothel to raise money and used to take her there and collect her late at night and demand a share of her earnings. According to her, this was one of Roddan's methods to discredit her and to destroy any credibility she had. She claimed that he said to her that no one would ever believe her because she had been working as a prostitute, as indeed she had. Her condition generally deteriorated and at times she bordered on the hysterical. In her moments of despair she would often telephone Noye to complain about Roddan's conduct and ask for his assistance. Although it seemed that there was very little that Noye could do, he, nevertheless, attempted to placate and encourage her.

167 On or about 9 September 1992, Noye was engaged in other duties, attending a court case. He received an urgent and distressed telephone call from Lynette Crimmins to say that her home in Lincoln Street, Highgate, had been broken into and property stolen. She was upset and distressed and wanted assistance. He told her to report it to the local police and promised to attend. Although it was not directly within his sphere of responsibility, Sergeant Noye immediately drove to Lincoln Street and there met the distressed Lynette Crimmins and the local police. They confirmed that the premises had been broken into and Sergeant Noye, in combination with Lynette Crimmins, then compiled a report on the property said to have been stolen. This included an electronic organiser, several cameras and other equipment, all of which was itemised and given an attributed value. Having certified the report, Noye gave a copy to Lynette Crimmins and she later made a claim against her insurance company for the recovery of the value of the stolen goods. A list of property alleged to have been stolen gave the value of the items as about $24,000. However, the State Government Insurance Office ("SGIO") would not accept those figures as representing the insured value and instead offered the sum of about $16,000 for settlement of the claim. That was agreed.

168 Lynette Crimmins later alleged that Noye demanded, and was paid, $1000 cash by her from the proceeds of this claim as his share for preparing the false report about the items stolen. She alleged that Roddan got most of the rest of the money out of her. She later alleged that the only property which was actually missing after the apparent robbery was a camera with a film containing photographs of some injuries which she had suffered, she says, as a result of an assault by Roddan. She also asserted that photographs of her with Roddan, showing her wearing a large diamond ring, and the diamond ring itself, were stolen, but that was all that was missing. Later, she alleged that the robbery from her premises had in fact been carried out by Roddan, or at Roddan's direction, in order to destroy evidence which might show him either to have been involved in illegal conduct with Crimmins or to have assaulted her. She then said that Noye was in on the project and was party to the plan with Roddan to make an inflated insurance claim, in order to obtain money for himself and money which Roddan could extract from her. This is the basis of the various charges, in the original complaints, and later in the indictments against Noye, Roddan and Lynette Crimmins, that they together made false and fraudulent claims for insurance recovery against the SGIO.

169 Noye always denied, and denied in the evidence in the present proceedings, being involved in any way in knowingly making a false insurance claim against the SGIO. He admitted that he did attend at Lynette Crimmins' apartment in Lincoln Street, Highgate, at her request, shortly after she had called him with news of the burglary. He said that although this was not, strictly speaking, his area of police responsibility, he had by then been dealing with Lynette Crimmins for so long and knowing her problems with Roddan, he desired to assist her. He says that he compiled and prepared a list of missing property quite honestly, and did no more than list the property which Lynette Crimmins, herself, reported as having been stolen. He said that, naturally, he himself had no knowledge of what property was missing, other than what he was told by Lynette Crimmins. He absolutely denied receiving $1000 or any other money from Crimmins, Roddan or anyone else as a share in the insurance proceeds, and rejected out of hand the suggestion that he wanted this money to travel to Victoria.

170 Lynette Crimmins pleaded guilty to charges of insurance fraud and, as will be described, for those and other offences was placed on a bond when sentenced. Roddan always denied any involvement in the break-in or the alleged insurance fraud but was charged with those offences and, as also will be described, was discharged from the complaints against him alleging such offences at the end of committal proceedings. His trial leading to his conviction on charges of conspiring to steal diamonds did not involve any allegation of insurance fraud. Although the indictments presented jointly against him and Noye (Exhibits 8, 9 and 10) each did. They lapsed with the presentation of the nolle prosequi. It follows from this that the only evidence available to support the charges of insurance fraud against Noye were the uncorroborated allegations of Lynette Crimmins, and these rested entirely upon her own dubious credit.

Breakthrough in the investigation revealing complicity of the two Crimmins and Roddan

171 After Noye submitted his draft report to Assistant Commissioner (Crime) Ayton in September 1992, it remained with senior officers for examination and consideration. Noye was due leave and took leave. During this leave he travelled, he says at his own expense, to visit family in Melbourne. While he was in Melbourne he said that he thought that it was a good opportunity to attempt to contact Barry Crimmins, whom he then knew was living in Shepparton. Noye maintained that at earlier stages of the investigation he had raised with his superiors the prospect of travelling to Victoria to interview Crimmins, but approval had been declined because of the expense involved.

172 Only ever having spoken to Barry Crimmins by telephone, it was not surprising that Noye wished to interview him, although, by this stage of course, he had already completed his report and had concluded that there was no evidence to justify any charges against Barry Crimmins or others. He did not inform his superiors of his intention to visit Barry Crimmins or of the fact that he had visited him until much later. Noye drove from Melbourne to Euroa to see relatives and then to Shepparton and met Barry Crimmins by arrangement at the local hotel. Crimmins had arranged for a friend, Mr Cosgriff, the local Magistrate, to be present at the luncheon and he was. There is no transcript or precise record of the discussions, but a general account of them is given by Noye in his evidence in these proceedings, and in subsequent statements made by Crimmins to the police. It seems that there was a long rambling series of conversations in which Noye explained that he had conducted the investigation of the alleged Argyle diamond thefts and had reported that there was no evidence to substantiate any charges and that there was no evidence against Crimmins. He repeatedly assured Crimmins that he was out of the matter and that it was now over and made a number of statements, all to the effect that there was no reason for Crimmins to be concerned about the matter further. This led to a discussion about the possibility of Crimmins regaining employment at Argyle and Noye seems to have encouraged Crimmins to believe that this was a distinct possibility. Indeed, a short time later, Crimmins wrote to Argyle seeking re-employment at the mine.

173 It emerged that Barry Crimmins had been warned that Noye was coming to see him. Noye had mentioned his intention to do this to Roddan and/or Lynette Crimmins before leaving Perth. Lynette Crimmins then rang her former husband to tell him that Noye, the detective in charge of the investigation, was coming to Victoria and intended to visit him. But she gave Barry Crimmins to understand that Noye was on Roddan's payroll and did not pose a real threat and, therefore, that Barry Crimmins should not provide any incriminating information. Barry Crimmins thought that Noye's behaviour was very strange and evasive. He played along but claimed to be astonished that Noye did not adopt a formal investigative or interrogative role and that he came alone without another policeman for what might have been expected to be a serious investigation.

174 The afternoon wore on over a long lunch and Noye showed no inclination to leave. The time came when Barry Crimmins asked Noye what his plans were for that evening and whether he intended to stay in Shepparton. Noye responded by saying that he had no distinct plans and that he was willing to stay. This led to an enquiry about where he might stay. When Noye explained that he had made no arrangements, Crimmins invited him to stay at his home. He did that, sleeping in the lounge room and leaving the next morning. There was no further attempt to conduct any serious investigations or interrogation in relation to the alleged diamond stealing from Argyle. Crimmins was again surprised and bemused at Noye's conduct but did not say or do anything to reveal unlawful conduct by himself, Roddan or his wife in relation to the Argyle affair. He interpreted Noye's conduct as being consistent with the assertion made to him over the phone by Lynette Crimmins that Noye was, for some reason, on side with Roddan.

175 After the third stage of inquiry into the Argyle diamond affair had been set up in February 1993, it was Inspector Robbins who was in charge of the IAU investigation into the allegations that Noye was corruptly involved in concealing the case against Roddan. By this stage he had statements from Lynette Crimmins describing her involvement with her husband, in the theft of diamonds from Argyle and their supply to Roddan. He was also aware of the allegations of Sergeant Gwilliam about the incongruous nature and frequency of Noye's meetings with Roddan at cafés in Northbridge, and of the allegations that Noye had supplied copies of the Argyle soil analysis reports to Roddan. The allegation relating to the unlawful disclosure of the D'Anna report (yet to be described) did not materialise until after the search warrant had been executed on Roddan's home on 10 August 1993 but that, once it had been raised, also added to the suspicions against Noye.

176 Robbins decided to travel to Victoria and interview Barry Crimmins at Shepparton. He did so on 7 April 1993, accompanied by a Victorian police officer. The meeting was tape recorded and transcripts made (Exhibits 113, 114 and 114A (6TB 1480 - 1506)). That interview was inconclusive. Despite Lynette Crimmins' allegations, Barry Crimmins maintained that he was not involved in any diamond theft or other illicit activity at Argyle or with Roddan. It was evident that he was asserting that Lynette Crimmins was unreliable and devious and in the pursuit of other ends. Although Inspector Robbins warned him that others in Perth believed that he, Barry Crimmins, was implicated in diamond thefts from Argyle, he, Robbins, said that he was not there to investigate that matter but, rather, the conduct of Sergeant Noye in conducting his investigation. His questioning of Barry Crimmins about Noye did not elicit anything directly incriminating but revealed that Barry Crimmins was wary of Noye and believed that he had come to visit Crimmins at Shepparton as part of the diamond stealing investigation.

177 However, Crimmins indicated, in a variety of ways, that he thought Noye's conduct was unusual for an investigating policeman and that the extent to which Noye met with the principal suspect, Roddan, was most incongruous for a policeman conducting an investigation. Barry Crimmins made several references to being in a position to provide information "off the record" about Lynette Crimmins and, possibly, other matters, but (with one exception) did not actually do so. Apart from revealing that Barry Crimmins believed that Noye's behaviour during the visit to Shepparton was strange, nothing of substance emerged from that meeting.

178 In circumstances which did not directly appear in evidence at the trial, but which emerged from Barry Crimmins' subsequent statements to the police (Exhibits 113 and 26 (also 110 and 116)), Crimmins left Shepparton not long after the Robbins' visit of April 1993, travelling through outback New South Wales to Queensland. There, in the latter half of 1993, he contacted Gwilliam by telephone and indicated that matters had been preying on his mind and that he was ready to confess to his involvement in diamond stealing from Argyle. He explained that he was due to come to Western Australia and would be in Kununurra a week or so later. He arranged to meet Gwilliam there, saying that he would make a full statement setting out his involvement in the diamond stealing operation. A large and unanswered question in this case is what led Barry Crimmins to decide to turn himself in. On that unknown factor a significant extent of the credibility of Barry Crimmins and of Lynette Crimmins depends.

Confidential police information - the "D'Anna report"

179 In the course of his investigations into the Argyle diamond inquiry, Noye had liaised with representatives of the Australian Federal Police ("AFP") to obtain access to classified police intelligence relating to Roddan and any of his associates. As a result, Noye was provided, on a confidential basis, with an AFP information report (Exhibit 2, 1TB 55-57) relating to information recorded concerning Roddan. It appears that Roddan had come under police notice for suspected involvement with cannabis plantations and heroin distribution. This attention arose from the reports of a federal prisoner named D'Anna, then serving a term of imprisonment at Casuarina Prison for the importation of heroin. The police intelligence revealed that Roddan had telephoned D'Anna on three occasions, twice on 24 April 1991 and once the following day.

180 D'Anna had been arrested at Perth Airport on 19 May 1991 for the importation of heroin. D'Anna was interviewed and revealed that he knew Roddan through his associate, a known heroin supplier "MVM". Through that connection D'Anna had heard that Roddan was apparently involved in a cannabis plantation on his property at Chittering, which was operated by "MVM" and a former police officer who was later arrested at the site. Other gossip relayed by D'Anna from another prison inmate was that other persons did heroin runs for Roddan from Sydney. There was no evidence which directly implicated Roddan in any offence and, apart from the interview with D'Anna, there was little, if anything, revealed about criminal propensity by Roddan. The AFP investigation ceased and the information was relayed to the State police.

181 Much later, on 10 August 1993, when Roddan was arrested and a detailed search of his premises was conducted by the police, it was alleged that a copy of the D'Anna report had been found among the files in Roddan's desk. It was then alleged that the copy of this secret confidential document had been disclosed by Noye to Roddan and that any such disclosure could only be corrupt. Noye always denied supplying Roddan or any other person with a copy of the D'Anna report and was quite unable to explain how it may have come into Roddan's possession.

182 When the circumstances of the discovery of the D'Anna report were more closely investigated, it became apparent that the report may not actually have been found in Roddan's desk or during the search of Roddan's premises. Large volumes of materials, including papers from the desk and elsewhere in the house, had been bundled together in the search and brought back to the police headquarters, where they were examined in detail over the days following. At some point, either at the house or at the police headquarters, Sergeant Gwilliam claimed to have found the copy of the D'Anna report among the materials seized.

183 Noye asserts that the document was "planted" by Gwilliam in an attempt to discredit him. He submits that there is no corroboration of Gwilliam's allegation that the documents were found among the materials seized during the search of Roddan's premises. In fact there was a statement from one of Gwilliam's assistants, Detective Paul Stefan Schubert, in the prosecution brief, that he saw the D'Anna report found in materials seized in the search of Noye's premises. However, no attempt was made to call Schubert at this trial, nor was his evidence treated as sufficient to proceed with this charge against Noye by the DPP. Noye was originally charged with corruptly disclosing the D'Anna report, but that charge was withdrawn. The D'Anna report incident also comprised one of the internal police disciplinary charges laid against Noye.

184 The animosity by Gwilliam towards Noye is known to have been very great and went so far as Gwilliam being charged with giving false evidence on oath in the Court of Petty Sessions involving Noye, which led to an indictment for perjury. In these circumstances, where the credit of Gwilliam has been so seriously questioned, where there is no other evidence to demonstrate that the D'Anna report was actually among the materials found at Roddan's house during the search, and because Noye has always denied supplying a copy of the report to Roddan or to any other unauthorised person, the prospect of establishing that allegation against Noye was minimal. Gwilliam was not called as a witness at this trial. From other evidence from senior police personnel, including former Assistant Commissioner (Crime) Ayton, Detective Inspector Lavender and Inspector Robbins himself, it is obvious that the police had little confidence in Gwilliam's extreme allegations against Noye, and would not accept his word without independent corroboration. In other words, Gwilliam was, to a significant degree, a discredited informant.

Suspension and criminal charges against Sergeant Noye

185 On 12 November 1993 Detective Sergeant Noye was served with a notice of suspension under s 8 of the Police Act 1892 (WA), by Inspector Robbins. That notice (Exhibit 5, 10TB 2256) was signed by Chief Superintendent George Lippe and directed that Noye be suspended from duty with pay and allowances from 12 November 1993 until further notice.

186 Later, on 7 October 1994, Sergeant Noye was served with a second notice of suspension issued under s 8 of the Police Act and again issued over the hand of Chief Superintendent Lippe. This was served upon him by Inspector Shane Robson and notified him that he was suspended from duty without pay and allowances from 6 October 1994 until further notice. His access to the Police Department computer system and police buildings was also cancelled by that notice (Exhibit 5(1), 11TB 2665).

187 Also, on 12 November 1993, Sergeant Noye was charged by complaint by Inspector Robbins with three criminal offences. These were subsequently reissued and three further charges against Noye were laid by complaint by Inspector Robbins on 14 February 1994. On both those dates Inspector Robbins also charged Roddan by separate complaints with various charges. The original complaints comprise Exhibit 32 (10TB 2242 - 2255) and the re-issued and extended charges comprise Exhibit 35 (10TB 2339 - 2345). They are conveniently summarised and reproduced in separate documents (Exhibit 32A and 35). The first charges against Noye dated 11 November 1993 are as follows:

• "[56146] Between the first day of February 1992 and 20th day of February 1993, at Perth, Jeffrey Howard NOYE attempted to pervert the course of justice in that he being a police officer required to investigate possible criminal offences committed by Lindsay Gordon RODDAN, Barry Anthony CRIMMINS and others and to lay a complaint alleging an offence if necessary, deceitfully misrepresented the true evidence available and reported that there was no evidence to support a charge thereby deflecting other police officers from instituting a prosecution against the said Lindsay Gordon RODDAN, Barry Anthony CRIMMINS and others. Section 143 of the Criminal Code.
• [56148] On or about 25th of March 1992 at Perth, Jeffrey Howard NOYE, a police officer, published a document, namely a soil analysis report, which came into his possession by virtue of his office and which was his duty to keep secret. Section 81 of the Criminal Code.
• [56149] On or about 24th of June 1992 at Perth, Jeffrey Howard NOYE, being a police officer, published a document, namely an Australian Federal Police information report which came into his possession by virtue of his position and which was his duty to keep secret. Section 81 of the Criminal Code."

The first of these charges refers, in effect but not exclusively, to the final report of Sergeant Noye (Exhibit 3), which sets out his conclusions for reporting that there was no basis to charge Roddan or anyone else in connection with the alleged theft of diamonds from the Argyle diamond mine. The second charge is a reference to the disclosure by Noye, in the company of Sergeant Gwilliam, to Roddan, at a meeting at L'Alba Café in Northbridge (a week after an earlier meeting at that place between Assistant Commissioner (Crime) Ayton, Sergeant Noye and Roddan), of a copy of the soil analysis report prepared on behalf of Argyle relating to the Newton diamonds. The report was to be used, among other purposes, for the interpleader proceedings.

188 The third charge relates to the alleged disclosure by Noye to Roddan of the AFP intelligence report - the D'Anna report.

189 As noted, the charges were reformulated and three additional charges alleging insurance fraud were laid by Inspector Robbins by complaint against Noye on 14 February 1994. Those charges were:

• "[17299] Between the 30th January 1992 and the 20th January 1993 at Perth and elsewhere, Jeffrey Howard NOYE attempted to pervert the course of justice in that he, being a police officer required to investigate possible criminal offences committed by Lindsay Gordon RODDAN, Barry Anthony CRIMMINS and others and to lay a complaint alleging an offence if necessary, deceitfully misrepresented the true evidence available and reported that there was no evidence to support a charge thereby deflecting other police officers from instituting the prosecution against the said Lindsay Gordon RODDAN, the said Barry Anthony CRIMMINS and others. Section 143 of the Criminal Code.
• [17301] On or about the 25th March 1992 at Perth, Jeffrey Howard NOYE, a police officer, published a document, namely a soil analysis report which came into his possession by virtue of his position and which was the duty of the said Jeffrey Howard NOYE to keep secret. Section 81 of the Criminal Code.
• [17302] On or about the 24th June 1992 at Perth, Jeffrey Howard NOYE being a police officer, published a document, namely an Australian Federal Police information report which came into his possession by virtue of his position and which was the duty of the said Jeffrey Howard NOYE to keep secret. Section 81 of the Criminal Code.
• [17296] On or about the 9th September 1992 at Perth, Jeffrey Howard NOYE and Lindsay Gordon RODDAN with intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in a State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the said State Government Insurance Office to deliver to one Lynette Beryl CRIMMINS the amount of $1,633-00 in money. Section 409(1)(b) of the Criminal Code.
• [17297] On or about 9th September 1992 at Perth, Jeffrey Howard NOYE and Lindsay Gordon RODDAN with intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in the State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the said State Government Insurance Office to deliver to Prestige Jewellers the amount of $13,320-00 in money. Section 409(1)(b) of the Criminal Code.
• [17298] On or about 9th September 1992 at Perth, Jeffrey Howard NOYE and one Lindsay Gordon RODDAN with intention to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in a State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the said State Government Insurance Office to delivery to Plaza Cameras the amount of $986-69 in money. Section 409(1)(b) of the Criminal Code."

190 Noye appeared before the Court of Petty Sessions in Perth on the first three charges on 22 November 1993 and after entering an appearance was remanded.

191 On 12 November 1993, immediately after Noye was charged and before he was required to appear before the court, Inspector Robbins prepared and released a report to the press and other media (Exhibit 32, 10TB 2257) in the following terms:

"MEDIA RELEASE

ARGYLE DIAMOND INQUIRY

On Friday November 12, 1993, Detective Senior Sergeant Jeffrey Howard NOYE was charged by the Internal Affairs Unit with attempting to pervert the course of justice and two counts of disclosing matters which it was his duty to keep secret.

Detective Sergeant NOYE was charge by summons and is due to appear in the Central Law Courts on November 22, 1993.

The charges are as a result of inquiries conducted by the Internal Affairs Unit into allegations of corruption into previous inquiries conducted by Detectives into the alleged theft of diamonds from Argyle Diamond Mines.

The Director of Public Prosecutions, Mr John McKECHNIE has given advice that he will assume conduct of the resulting prosecution of these matters."

192 Also on 12 November 1993, and again on 14 February 1994, Inspector Robbins charged Roddan with offences arising out of the Argyle diamond inquiry. Roddan had earlier been arrested and charged by Gwilliam with conspiring with Barry Crimmins to steal diamonds from Argyle. The details of those further charges are also to be found in Exhibits 32, 32A and 35A and are as follows:

• "[56147] Between the 1st day of February 1992 and the 20th day of February 1993, at Perth, Lindsay Gordon RODDAN procured one Jeffrey Howard NOYE to pervert the course of justice in that he, the said Jeffrey Howard NOYE being a police officer required to investigate possible criminal offences committed by Lindsay Gordon RODDAN, Barry Anthony CRIMMINS and others and to lay a complaint alleging an offence if necessary, deceitfully misrepresented the true evidence available and reported that there was no evidence to support a charge thereby deflecting other police officers from instituting a prosecution against the said Lindsay Gordon RODDAN, the said Barry Anthony CRIMMINS and others. Section 143 of the Criminal Code."

On 14 February 1994 that charge was revised and replaced with a new, but similar charge, and further charges were laid by Inspector Robbins against Roddan as follows:

• "[17294] Between 1st January 1990 and 31st December 1990 at Perth, Lindsay Gordon RODDAN conspired together with Lynette Beryl CRIMMINS to steal as a servant diamonds the property of Argyle Diamond Mines Pty Ltd. Section 558(1)(a) and 378(7) of the Criminal Code.
• [17295] Between 1st January 1991 and 31st December 1991 at Perth and elsewhere, Lindsay Gordon RODDAN conspired together with Lynette Beryl CRIMMINS to steal as a servant diamonds the property of Argyle Diamond Mines Pty Ltd. Section 558(1)(a) and 378(7) of the Criminal Code.
• [17296] On or about 9th September 1992 at Perth, Jeffrey Howard NOYE and Lindsay Gordon RODDAN with intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in the said Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the said State Government Insurance Office to deliver to one Lynette Beryl CRIMMINS the amount of $1633 in money. Section 409(1)(b) of the Criminal Code.
• [17297] On or about 9th September 1992 at Perth Jeffrey Howard NOYE and Lindsay Gordon RODDAN with intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in a State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the said State Government Insurance Office to deliver to Prestige Jewellers the amount of $13,320 in money. Section 409(1)(b) of the Criminal Code.
• [17298] On or about 9th September 1992 at Perth, Jeffrey Howard NOYE and one Lindsay Gordon RODDAN with intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in the State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the said State Government Insurance Office to deliver to Plaza Cameras the amount of $986.69 in money. Section 409(1)(b) of the Criminal Code.
• [17300] Between 30th January 1992 and 20th January 1993, at Perth, Lindsay Gordon RODDAN procured Jeffrey Howard NOYE to pervert the course of justice in that he, being a police officer required to investigate possible criminal offences committed by Lindsay Gordon RODDAN, Barry Anthony CRIMMINS and others and to lay a complaint alleging an offence if necessary, deceitfully misrepresented the true evidence available and reported that there was no evidence to support a charge thereby deflecting other police officers from instituting a prosecution against the said Lindsay Gordon RODDAN, Barry Anthony CRIMMINS and others. Section 143 of the Criminal Code."

193 On 22 April 1994 a preliminary hearing began in the Court of Petty Sessions at Perth in respect of the six charges laid against Noye and the charges against Roddan. Evidence was taken, including evidence from Barry Crimmins and Lynette Crimmins, both of whom had been convicted and sentenced in respect of related charges laid against them before they gave their evidence. Evidence was also given by Sergeant Gwilliam and Inspector Robbins. At the end of this hearing Sergeant Noye was committed to stand trial before the District Court on all six charges.

194 On 5 December 1994, the first of three indictments arising from these charges was presented to the District Court against Noye (Exhibit 8, 11TB 2666-2739). This was a single indictment laid by the then DPP, Mr John McKechnie QC, against Roddan and Noye jointly. It alleged that:

"1. Between 15 March 1988 and 7 August 1993 at Perth and elsewhere Lindsay Gordon RODDAN conspired with Barry Anthony CRIMMINS and Lynette Beryl CRIMMINS and others to steal as a servant diamonds the property of Argyle Diamond Mines Pty Ltd.

1. And further between 1 January 1990 and 31 December 1990 at Perth and elsewhere Lindsay Gordon RODDAN conspired together with Lynette Beryl CRIMMINS to steal as a servant diamonds the property of Argyle Diamond Mines Pty Ltd.
2. And further between 1 January 1991 and 31 December 1992 at Perth Lindsay Gordon RODDAN conspired together with Lynette Beryl CRIMMINS to steal as a servant diamonds the property of Argyle Diamond Mines Pty Ltd.
3. And further on or about 9 September 1992 at Perth Jeffrey Howard NOYE within intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in the State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the State Government Insurance Office to deliver to Lynette Beryl CRIMMINS the amount of $1,633.00 in money.
4. And further on or about 9 September 1992 at Perth Jeffrey Howard NOYE with intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in the State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the State Government Insurance Office to deliver to Prestige Jewellers the amount of $13,320.00 in money.
5. And further on or about 9 September 1992 at Perth Jeffrey Howard NOYE with intent to defraud, by deceit, falsely represented to an employee of the State Government Insurance Office that the details of loss contained in a State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused the State Government Insurance Office to deliver to Plaza Cameras the amount of $986.69 in money.
6. And further between on or about 30 January 1992 and 31 January 1993 at Perth and elsewhere Lindsay Gordon RODDAN and Jeffrey Howard NOYE conspired together to pervert the course of justice upon the police investigation of stealing of diamonds the property of Argyle Diamond Mines Pty Ltd by deflecting or frustrating the possible institution of criminal proceedings against Lindsay Gordon RODDAN and others.
7. And further on or about 25 March 1992 at Perth Lindsay Gordon RODDAN and Jeffrey Howard NOYE, a person employed in the Public Service, published a document, namely a CRA Analysis Report by C B Smith dated 18 December 1989, which came into the possession of Jeffrey Howard NOYE by virtue of his office and which it was his duty to keep secret.
8. And further on or about 25 March 1992 at Perth Lindsay Gordon RODDAN and Jeffrey Howard NOYE, a person employed in the Public Service, published a document, namely a CRA Analysis Report by Edmund J Noonan dated 12 December 1989, which came into the possession of Jeffrey Howard NOYE by virtue of his office and which it was his duty to keep secret."

195 This indictment was followed by a lengthy annexure naming witnesses and entities referred to in a further annexure of particulars of counts 1 (pars 1 to 451), particulars of count 2 (pars 1 to 10), particulars of count 3 (pars 1 to 4) and further particulars of overt acts of the alleged conspiracy to pervert the course of justice (pars 1 to 91) and, with a second set of particulars of overt acts of the alleged conspiracy in relation to an indictment dated 5 March 1996 (pars 1 to 54), (which is not itself in evidence).

196 As can be seen from its terms, this first indictment alleges a conspiracy to steal diamonds involving Roddan, Barry Crimmins and Lynette Crimmins over three distinct, but overlapping, periods, running from 15 March 1988 to 19 August 1993. It then contains three counts of insurance fraud by Noye and Roddan jointly in September 1992 (counts 4, 5 and 6). Then there is the charge for conspiracy by Roddan and Noye to pervert the course of justice arising out of the Argyle diamond police investigation. This is followed by two charges of unlawful disclosure of confidential documents, being Argyle's soil analysis reports, by Noye to Roddan, both on 25 March 1992 - that is, at the meeting at L'Alba Café which included Sergeant Gwilliam. The second of these charges, referring to the disclosure of a report by Mr Edmund J Noonan of 12 December 1989 related to another analysis report prepared by Argyle which was also to be used, among other things, for the interpleader proceedings.

197 It will be noticed that this indictment makes no reference to alleged unlawful disclosure of the D'Anna report which was, of course, the subject of one of the charges originally laid in the Court of Petty Sessions and in respect of which Noye had been committed.

198 The second indictment was presented on 1 October 1997, once more against Roddan and Noye jointly (Exhibit 9, 13TB 3061 - 3076). This contained only three counts and was also accompanied by an annexure with extensive particulars of overt acts of the alleged conspiracy to pervert the course of justice (pars 1 to 54). The offences alleged by this second indictment were that:

"1. Between 30 January 1992 and 10 August 1993 at Perth and elsewhere Lindsay Gordon RODDAN and Jeffrey Howard NOYE conspired together to prevent or pervert the course of justice, namely a possible prosecution of Lindsay Gordon RODDAN and others arising out of the stealing of diamonds the property of Argyle Diamond Mines Pty Ltd by deflecting or preventing the institution of such a prosecution.

1. On a date unknown between 30 January 1992 and 3 April 1992 at Perth Lindsay Gordon RODDAN and Jeffrey Howard NOYE, a person employed in the Public Service, published documents namely:
   • A CRA analysis report by Edmund J Noonan to John G Chapman dated 12 December 1989 plus 7 pages of graphs by John G Chapman;
   • A CRA analysis report by C B Smith to R W Corfield dated 18 December 1989;
   • A further CRA analysis report by C B Smith to R W Corfield also dated 18 December 1989; and
   • Energy dispersive X-ray analysis tests reports (spectrum reports) by Edmund J Noonan"

which came into the possession of Jeffrey Howard NOYE by virtue of his office and which it was his duty to keep secret.

1. On or about 9 September 1992 at Perth Jeffrey Howard NOYE with intent to defraud by deceit falsely represented to an employee of the State Government Insurance Office that the details of loss contained in a State Government Insurance Office claim, policy number H1268892 were true and correct and thereby caused a pecuniary detriment in the amount of $15,597.54 to the State Government Insurance Office."

199 On comparison of the details of this second indictment, with those of the first, it can be noticed that the charges alleging a conspiracy to steal diamonds from Argyle by Roddan, Barry Crimmins and Lynette Crimmins have been excluded; the charge of conspiracy to pervert the course of justice is modified slightly to include an allegation to pervert or prevent the course of justice; and, that the duration of the period of the alleged conspiracy was extended to 10 August 1993, that is, a little over seven months longer than the conspiracy alleged in the first indictment and a little over five months longer than the conspiracy alleged in the original complaint.

200 The two counts relating to the unlawful disclosure of confidential documents have been rolled into one charge, but now relate to four separate documents. On this indictment, the allegation that the date of disclosure is said to be unknown, but some time between 30 January 1992 and 3 April 1992, rather than specifying the occasion of 25 March 1992 at the L'Alba Café the subject of the original complaints and the first indictment.

201 The final point of difference in the second indictment is that the three charges relating to the insurance fraud are all consolidated into one count, resulting in an aggregate alleged loss to the insurer of $15,597.54. Again, there is the absence of any reference to an offence involving unauthorised disclosure of the D'Anna report.

202 The third and final indictment in evidence at this trial is an indictment of 2 June 1998, again presented against Roddan and Noye jointly. This alleges one single count of conspiracy to prevent or pervert the course of justice, as follows:

"Between 1 January 1992 and 10 August 1993 at Perth and elsewhere Lindsay Gordon RODDAN and Jeffrey Howard NOYE conspired together to prevent or pervert the course of justice, namely a possible prosecution of Lindsay Gordon RODDAN and others arising out of the stealing of diamonds the property of Argyle Diamond Mines Pty Ltd, by deflecting or preventing the institution of such a prosecution [Exhibit 10, 13TB, 3155 - 3157]."

203 In a letter from the Crown Prosecutor to the solicitors for Mr Noye, dated 19 July 1996 (Exhibit 7, 13TB 3055 - 3056), the prosecutor referred to materials which comprised the prosecution brief, on the indictment then before the court, and then went on to state that any evidence concerning the D'Anna document would not be led at the trial. None of the indictments made reference to a charge arising out of the alleged disclosure of the D'Anna document, although a number of the witness proofs and statements contained reference to this alleged incident and this was an assurance that such evidence would not be led. It is perhaps not insignificant that one vital link in the chain of evidence to support this charge was the evidence of Sergeant Gwilliam, which was fiercely contested by Noye. In similar vein, the change from the specific date of 25 March 1992, as the time when Noye corruptly distributed confidential analysis reports to Roddan, was a change away from the specific date of the meeting which had been attended by Gwilliam.

204 Exhibit 11 (13TB, 3058 - 3060) is a letter dated 28 July 1997 from the DPP to the presiding Judge of the District Court, forwarding a substitute indictment containing one count of conspiracy to pervert the course of justice, one count of disclosing official secrets, and one count of fraud, together with other documents. That appears to be a reference to the second indictment (Exhibit 9) which, however, is dated 1 October 1997, more than two months after the date of the letter. Perhaps it is an attempt to refer to an intermediate draft indictment which is not in evidence, but nothing turns on this. The letter, copied to the solicitors for Mr Noye, also advised that the Crown did not intend to proceed further on the charge relating to the D'Anna report, being Charge No 10 on Complaint 17302 of 1994 as then described. This appears to be the first express notification that that charge was not to proceed.

205 On 8 October 1998 prosecuting counsel announced in open court that the Crown would not proceed with any of the three indictments then pending against Roddan and Noye. A nolle prosequi under the hand of the DPP dated 8 October 1988 was then presented to the court (Exhibit 12, 13TB 3199) which stated:

"THIS IS TO CERTIFY that the Crown declines to proceed further on indictments now standing against:

LINDSAY GORDON RODDAN

AND JEFFREY HOWARD NOYE

1. dated 5 December 1994 and being for 3 counts of fraud, 2 counts of disclosure of official secrets and 1 count of conspiracy to pervert the course of justice;
2. dated 1 October 1997 and being for 1 count of conspiracy to pervert the course of justice, 1 count of disclosure of official secrets and 1 count of fraud;
3. dated 2 June 1998 and being for 1 count of conspiracy to pervert the course of justice."

206 In departure from the orthodox tradition, the Crown prosecutor made some ambiguous and suggestive comments when announcing the decision of the DPP to present the nolle prosequi. Counsel said:

"Your Honour, there have been a number of recent events affecting the prosecution brief in this matter and unfortunately it's not presently in the interests of justice to detail them all, notwithstanding legitimate public interest in those matters. One matter relates to the health and general attitude of the key Crown witness who has now indicated a firm resolve to give no assistance whatever to the Crown.

In the light of that and various other matters which have arisen, the Crown has reassessed its case. Whilst no one factor of itself would justify the termination of the prosecution, the combination of factors has lead to the conclusion that the continuation of proceedings is no longer in the public interest. Accordingly, the Director of Public Prosecutions has signed a nolle prosequi to terminate the prosecution, which I now tender.

I also tender a nolle prosequi declining to file an indictment against Jeffrey Howard Noye on a charge of disclosure of official secrets, namely an information report and being the subject of Perth Court of Petty Sessions Charge No 17302 of 1994 which was never the subject of an indictment. I hand up those two nolles to your Honour and I have a copy for my learned friend."

Consequently, Noye was discharged from all the charges in the three indictments and the remaining charge of unlawful disclosure of a confidential document (the D'Anna report), which was one of the charges upon which he had been committed for trial. Roddan was also discharged from all counts under those three indictments.

207 The reason why it is unorthodox that counsel for the prosecution should have attempted this Delphic explanation for filing the nolle prosequi should be obvious. First, it suggests that the prosecution had experienced unexpected difficulties in securing a witness, whose testimony had previously been relied upon to give evidence at trial, and who was, presumably, available and compellable to give evidence if called. Reference to this leaves a serious remaining implication of guilt, notwithstanding that the prosecutor, on whom the onus of proof lies, has unreservedly decided to withdraw charges. Secondly, the assertions and imputations contained in the explanation cannot be answered or refuted by the accused person, who is left with the adverse imputation hanging against him. They cannot be answered by the accused because, on the filing of the nolle prosequi, there is no issue before the court and, therefore, nothing for the court to decide upon or for the accused to answer. For such imputations to be made on a privileged occasion, when the only reason for the privilege is to allow a matter in contest to be properly examined, considered and decided by the court, but where it is known that the issue has ceased, seems very questionable. The consequences of this are considered further, later in these reasons.

208 That was the end of all prosecutions against Sergeant Noye. He left the courtroom a free man. No further charges in relation to these matters were laid against him and no other indictment has been presented in the nearly nine years which have elapsed from then until this trial. He maintains that the prosecutions against him have ended, insofar as it is possible for any such end to be secured, in his favour, and that this satisfies that ingredient of the cause of action for malicious prosecution. However, the defendants submitted that the resolution of proceedings by nolle prosequi does not, at least automatically, produce this effect. That submission is examined in detail later.

209 In any event, in the present trial, Mr Noye maintained that he was always completely innocent of all the charges laid against him; that he had not corruptly recommended that no charges could or should be laid against Roddan or Crimmins; that he had not unlawfully disclosed confidential materials; and, that he had not been a party to any insurance or other fraud arising from Lynette Crimmins' insurance claims.

210 Neither of the defendants adduced evidence in an attempt to prove that Noye was in fact guilty of any of the charges ever laid against him. Therefore, if it be necessary to decide in these proceedings whether or not Noye has proved his innocence of those charges, or rather whether on all of the evidence it is established as a matter of probability that the plaintiff had committed any of those offences, then the only possible finding on the evidence is that no finding of probable guilt could be made. Noye's sworn testimony that he did not commit any of those offences is only contradicted by Lynette Crimmins, whom I do not accept as a credible witness. Therefore, this Court should be satisfied that there is no reason to conclude that Noye committed any of the offences of which he had been charged. As will be seen from a more detailed examination of the evidence later, the case against Noye was to a very great degree circumstantial.

211 The strongest elements of the circumstantial evidence against Noye lay in assertions attributed to Barry Crimmins and accusations made against him by Lynette Crimmins. Barry Crimmins was not called as a witness in this case and, for reasons which I will explain in more detail later, I do not consider that Lynette Crimmins can, or should, be accepted as a witness of credit. She was a vindictive woman filled with a sense of grievance against many persons and one who has made many groundless assertions on a multitude of occasions. She harboured the deepest and bitterest of animosities towards Roddan and, by extension, because of her coloured perceptions of his association with Noye, against Noye. Her demeanour when giving evidence left one in no doubt that she was a person prone to absorb and retell the worst which she had heard about another person, from whatever source, as if it were the complete and unquestioned truth. Perhaps she had good reason to be hostile towards Roddan, but that hostility deprived her of any balance or restraint and, so far as concerns Noye, involved her in parading, as the truth, the very worst of her prejudices and hearsay. No doubt there may be witnesses with less credit than Lynette Crimmins, but I have no hesitation in saying that people could not, or should not, accept her word without independent verification or corroboration.

212 In addition to the criminal charges laid against Sergeant Noye, he was also the subject of internal police disciplinary charges, laid under the Police Force Regulations 1979 (WA) and which were determinable by the Commissioner of Police. There were four such charges, each laid on 29 November 1993 and presented by Inspector Dawson of the Internal Investigation Branch ("IIB"). The four charge sheets and two page summary of alleged facts in relation to the charges comprise Exhibit 6 (10TB, 2260 - 2265). They are as follows:

1. "[79/93] You at Perth on 16th September, 1992, being a member of the Western Australian Police Force wilfully submitted a report to Detective Superintendent STORM which included false and misleading information relating to the Argyle Diamond Inquiry and at the time of submitting that report knew it included false and misleading information.

Regulation 606(b) of the Police Force Regulations 1979."

The second is a reference to the three-volume draft final report of Sergeant Noye dealing with the Argyle inquiry, which became Exhibit 3.

1. "[80/93] You at Perth on or about the 24th June, 1992, being a member of the Western Australian Police Force, without lawful authority or excuse, disclosed to Lindsay Gordon RODDAN confidential information obtained by you in the course of your duty namely the contents of an Australian Federal Police information report W921120.

Regulation 607(b) of the Police Force Regulations 1979."

The third is a reference to the alleged disclosure of the D'Anna intelligence report.

1. "[81/93] You at Perth on or about the 25th March, 1992, being a member of the Western Australian Police Force, without lawful authority or excuse, disclosed to Lindsay Gordon RODDAN confidential information obtained by you in the course of your duty namely the contents of a soil analysis report from CRA Argyle Diamond Mines.

Regulation 607(a) of the Police Force Regulations 1979."

The fourth is a reference to the disclosure of a CRA soil analysis report relating to the interpleader proceedings. It refers to the delivery of a copy of that report to Roddan at a meeting at the L'Alba Café attended by Sergeant Gwilliam on 25 March 1992.

1. "[82/93] You at Perth between January 1, 1993, and January 23, 1993 being a member of the Western Australian Police Force and being aware that Lindsay Gordon RODDAN had in his possession stolen firearms failed to take appropriate action to recover the said firearms.

Regulation 402(b) of the Police Force Regulations 1979."

This incident has not previously been mentioned and it arises from a telephone conversation Roddan had with Noye in early 1993, when Roddan explained that he had come into the possession of certain firearms and asked what should be done with them. Noye took particulars of the firearms, consulted the police computer records and learned that firearms matching the description had been reported stolen from a resident of Gnowangerup at a break-in in November 1992. Rather than take any action himself to confiscate the firearms, or arrange for another police officer to do so, Noye provided Roddan with information about the name and address of the reputed owner of the firearms and suggested that Roddan communicate with the local police officer directly. Roddan, instead, contacted the owner and later returned the firearms and, in the process, collected a reward from the owner of $750. The complaint against Noye was that he failed to take possession of the stolen firearms or to arrange for this to be done and wrongfully disclosed the name and address of the reputed owner.

213 Noye was paraded before Commissioner Bull on these four charges of 7 December 1993 and pleaded not guilty. They were held over pending the resolution of the other charges against Noye and were eventually dropped. He never admitted, and was never convicted of, any of those charges.

214 Although these charges had been laid by Inspector Dawson of the IIB, and not by Inspector Robbins, Noye alleges, and it is not disputed, that all the information concerning these alleged events had been collected by Inspector Robbins as part of his investigation. It was once Noye had been charged with the criminal offences, that these details were referred to the appropriate officer at the IIB for, almost inevitably, the internal disciplinary action which duly eventuated. The allegation, therefore, is that although the disciplinary charges were not laid formally by Inspector Robbins, he was, effectively, the person or prosecutor who secured their instigation.

Causes of action - malicious prosecution, misfeasance in public office, abuse of process and injurious falsehood

215 The causes of action specifically relied upon by the plaintiff in the claim against Inspector Robbins are malicious prosecution, misfeasance in public office and injurious falsehood. Against Lynette Crimmins, the plaintiff alleges malicious prosecution and injurious falsehood. In the course of the trial, however, submissions were advanced that, on the facts as pleaded and the evidence as emerging, there was an additional cause of action for an abuse of process. It is convenient at this point to identify the essential components of each of the alleged torts.

216 To establish a successful case of malicious prosecution the onus is on the plaintiff to prove five distinct factors. It must be established, to the requisite degree of proof:

(a) That the defendant instigated proceedings (of a nature liable to attract the tort) or, if the proceedings were not commenced in the defendant's name, was instrumental in their institution and or continuation.

(b) That the particular proceedings were terminated in the plaintiff's favour in so far as such an outcome was possible.

(c) That the defendant's conduct was without reasonable and probable cause.

(e) That as a result the plaintiff suffered damage of one or more of the three specific types identified by Holt CJ in Savile v Roberts (1698) 1 Ld Raym 374; (1698) 91 ER 1147.

217 There is an unusual division of responsibility for the determination of whether or not each of these five elements of the tort has been proved. Under the common law tradition, where findings of fact on such causes were made by civil juries, the jury at trial in an action for malicious prosecution was required, after proper direction by the presiding Judge, to make findings on all but one of these issues. The exception was on the issue of whether or not the proceedings had been commenced without reasonable or probable cause which, while it is still regarded as a question of fact for decision in the proceedings, is exceptionally reserved for decision by the Judge and not by the jury. If the determination of that particular issue required a decision to be made on subsidiary facts in issue, then the jury was the only tribunal which could make findings on those disputes of subsidiary facts. However, once those facts had been determined by the special verdict of the jury so required, the decision whether, on those facts as found, the defendant had acted without reasonable and probable cause remained a decision solely for the Judge.

218 The origin and reason for this special division of responsibility between Judge and jury are explained in Glinski v McIver [1962] AC 726 per Lord Devlin at 778 - 780. It reflects a decision on the public policy inherent in this tort that there should be a control mechanism available to counteract what experience had revealed was a tendency for the tribunal of fact (in those days civil juries) to display more than appropriate sympathy to a plaintiff pursuing such a cause. In modern times, as in this State where trials before civil juries have in practice largely disappeared, this division of responsibility between Judge and jury to decide on the constituent elements of the alleged cause of action no longer has any avenue for express observance. However, this development does not render it entirely insignificant. A Judge presiding over such a trial alone should still be conscious of the need for restraint in making any finding about the absence of reasonable or probable cause in the institution of the proceedings, because of the factors which originally gave rise to that rule.

219 In the present cases there are controversies over all these issues.

220 First, in relation to the case by the plaintiff against Inspector Robbins, the defendant in the first action, submits that the institution of disciplinary proceedings alleging breach of internal police regulations cannot give rise to any liability for malicious prosecution, even if it were to be established that, notwithstanding that the disciplinary proceedings were laid in the name of another senior police officer, Inspector Robbins was essentially the instigator of them. The question of whether professional disciplinary proceedings, even if maliciously instituted without reasonable or probable cause, can give rise to an action for malicious prosecution has been decided in the negative in England in Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419 and is the subject of a learned article by Crane P, "The Scope of Malicious Prosecution" (2000) 116 LQR 346.

221 Counsel for Inspector Robbins submits that the tort of malicious prosecution does not lie in relation to internal disciplinary proceedings. The principal authority relied upon is Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419. In that case a unanimous House of Lords held that the tort of a malicious prosecution did not extend to disciplinary proceedings. It had never been held to be available beyond the limit of criminal proceedings and special instances of abuse of civil proceedings and had never been extended to disciplinary proceedings of any kind. Lord Steyn, with whom Lords Browne-Wilkinson, Nicholls of Birkenhead, Hobhouse of Woodborough and Millet agreed, accepted that the tort is available in respect of the malicious institution of criminal proceedings and certain cases of abuse of civil process, including malicious presentation of a winding up order or petition in bankruptcy; the procurement of the issue of a search warrant without reasonable cause and with malice; setting in train execution against property without reasonable cause and maliciously; and, the malicious arrest of a ship: Gregory v Portsmouth City Council (supra) at 426 - 427. The question whether the tort might be extended to civil proceedings generally did not require decision, but Lord Steyn made the following observations to which I have added relevant observations from other named sources:

(a) "The traditional explanation for not extending the tort to civil proceedings generally is that in a civil case there is no damage: the fair name of the defendant is protected by the trial and judgment of the court" (at 427). Lord Steyn considered that this view was no longer plausible in modern times, given the "wide dissemination in the media of allegations in litigation" and so the potential for damage before trial (at 428). However, his Lordship also noted that "the restriction on the availability of the tort in respect of civil proceedings may be justified for other reasons" (at 428).

(b) The difference in the development of the tort of malicious prosecution between England and the United States is a consequence of structural differences between the two legal systems; in particular, the general judicial power to award costs against a plaintiff who has brought a groundless claim, which is vested in English Judges, but not in their American counterparts (Lord Steyn at 429 - 430). (In the United States, the tort of malicious prosecution is extended to all civil proceedings as well as to proceedings before administrative boards: s 674 and s 680 of "The American Law Institute, Restatement of the Law of Torts", 2d (1977). This distinction was also noted as being significant by Ormiston J in Little v Law Institute of Victoria (No 3) [1990] VicRp 25; [1990] VR 257 at 279. It should be noted, however, that this point of distinction has been criticised, at least in respect of the application of the tort to proceedings before tribunals which do not have the power to award costs: Cane P, "The Scope of Malicious Prosecution" (supra) at 348.

(c) Several academic commentators have observed that there is no rational basis for refusing to extend the tort of malicious prosecution to malicious civil proceedings where "the adverse decision of [a relevant] body may cause serious damage to the reputation or livelihood of the person accused": Salmond and Heuston on the Law Torts 21st ed (1996) at 393. See also Fleming J G, The Law of Torts 9th ed (1994) at 675 - 676; and Winfield and Jolowicz on Tort 14th ed (1994) at 581 - 582.

(d) Although it was unnecessary in Gregory's case (supra) to express a view on the argument in favour of the extension of the tort to civil proceedings generally, the House of Lords was not persuaded that the extension was necessary when account is taken of the protection afforded by other related torts, such as defamation and malicious falsehood.

222 Gregory v Portsmouth City Council (supra) decided that the tort of malicious prosecution should not be extended to the malicious institution of domestic disciplinary proceedings because:

• The tort of malicious prosecution "has never been extended to disciplinary hearings of any kind"; moreover, the House of Lords in Calveley v Chief Constable of Merseyside Police [1989] AC 1228 had held that it should not so extend (at 428).
• The extension of the tort to disciplinary proceedings would be a radical reform and would "plunge this area of the law into uncertainty" (given the disparate types and purposes of disciplinary proceedings) (at 431). However, Cane writes that uncertainty could be avoided if the criterion for defining the scope of the tort were "whether the proceedings of the tribunal in question are underwritten by the coercive power of the state": Cane P, "The Scope of Malicious Prosecution" (supra) at 348 - 349.
• There had been no precedents cited of any cases in Australia, Canada or New Zealand which extend the tort to disciplinary proceedings (at 431).
• The extension of the tort of malicious prosecution is undesirable given the existence of other torts (such as defamation, malicious falsehood, conspiracy and misfeasance in public office) capable of protecting "an individual damaged by disciplinary proceedings mounted without sufficient justification and maliciously" (at 431 - 432).

223 Gregory v Portsmouth City Council (supra) has since been applied in Diamond v Mansfield [2006] EWHC 3290 at [96]. The dicta that the tort should not be extend to civil proceedings generally has also been followed: see Strickland v Hertfordshire County Council [2003] EWCA 287 at [20] and Tibbs v Islington Borough Council [2002] EWCA Civ 1682 at [12].

224 Although there is no precedent in Australia for the extension of the tort of malicious prosecution to administrative or disciplinary proceedings, there has been some suggestion that in certain circumstances it might be possible. In Victoria there is authority to the effect that the action for malicious prosecution will lie in respect of the malicious institution of civil proceedings, outside the restricted scope of the malicious institution of a bankruptcy petition or a winding up application. In Little v Law Institute of Victoria (No 3) (supra) the institution of such a claim was based on an application by the defendant, in civil proceedings, to enjoin the plaintiff from acting as a solicitor and by the institution of a motion for punishment for contempt. In that case, Kaye and Beach JJ held that: "there is no longer justification for confining to a bankruptcy petition and an application to wind up a company the remedy for malicious abuse of civil proceedings where the damage claimed is to the plaintiff's reputation" (at 267). Ormiston J, in a separate judgment, found that neither the accepted rules of common law, nor the policy underlying the tort, "would deny a party the right to assert that he has suffered damage to his reputation by reason of the wrongful and malicious institution or continuation of civil proceedings" and thereby maintain an action for malicious prosecution (at 280, 289), although, a majority of the court indicated that, in such a case, the heads of damage which would be recoverable would be more restricted.

225 In The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307, McPherson JA, at [14], cited Gregory v Portsmouth City Council (supra) with apparent approval:

" ... you may have an action for damages for malicious prosecution against your tormentor; but only if the proceedings brought against you are criminal and terminate in your acquittal, and not if they are simply penal, administrative or disciplinary".

However, it was unnecessary for the Court of Appeal to apply the principle in Gregory's case to resolve the appeal before it.

226 In Chapel Road Pty Ltd v Australian Securities and Investments Commission [2006] NSWSC 1014; (2006) 203 FLR 322, Harrison AJ was dealing with a claim by a securities dealer against ASIC for the alleged malicious revocation of its dealer's licence (subsequently restored on appeal to the AAT). After reviewing the authorities, including those here cited, his Honour noted that there is no current authority for the extension of the tort of malicious prosecution to cover administrative proceedings (at [21]); and, that although it was arguable that the tort of malicious prosecution could be applied to administrative proceedings, that point did not need to be decided (at [77]).

227 Without reaching a decided view, Harrison AJ noted that the tort might be extended to administrative proceedings if one were prepared to accept either of two approaches:

(a) The consonant approach advocated in the dissenting judgment of Schiemann LJ in Gregory v Portsmouth City Council (1997) 96 LGR 569 (a view which was not accepted by the House of Lords on the appeal) - whereby the tort is available to any proceedings where an individual has suffered damage by being maliciously subjected to proceedings brought without any justification: at [52], [70], [74]; or

(b) The decision in Little v Law Institute of Victoria (No 3) (supra) (and by assuming that relevant damage is so caused) combined with the submission that, after Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129, there is no longer a meaningful distinction between legal proceedings and administrative proceedings, especially where a penalty may be imposed.

228 In the present case there can be no doubt that the internal police disciplinary proceedings were brought pursuant to a statutory disciplinary regime, which had the force of law under delegated legislation - Police Force Regulations 1979 (WA); or that, if the charges had been made out, Noye would have been subject to significant penalties, including discharge from the Police Force, and the termination of the special office which he held as a member of the Police Force: Attorney-General (New South Wales) v Perpetual Trustee Co Ltd [1955] HCA 9; (1955) 92 CLR 113.

229 Despite this, and the potential for this severe impact and damage which might be suffered by a police officer who was wrongfully subjected to the malicious institution of police disciplinary proceedings, the authorities are, to my mind, clear and uncompromising against the extension of the tort of malicious prosecution to any such situation. It follows that I conclude that that cause of action, as distinct from the claims for injurious falsehood, misfeasance in public office or abuse of process, does not lie in relation to the disciplinary charges laid against Noye.

230 A further question, however, is whether Lynette Crimmins can be found to have instituted any of the criminal proceedings against Sergeant Noye when they were laid by Inspector Robbins. The submission on her behalf is that she was no more than an informant to the police and was not an effective cause in the institution of any of the proceedings, which instead resulted from independent decisions made by Inspector Robbins or others. Further, in this regard, counsel for Inspector Robbins submits that very soon after the charges were laid, the conduct of them was taken over by the State DPP and, accordingly, was out of the hands of Inspector Robbins. While this may not excuse the institution of the charges, the submission is that their continuation from before the time of the committal proceedings until the eventual presentation of the nolle prosequi was conduct for which the DPP was solely responsible.

(b) Favourable terminations - filing of a nolle prosequi

231 On the issue of whether or not the criminal proceedings against Sergeant Noye were resolved in his favour, both defendants originally submitted that the presentation of a nolle prosequi by a prosecutor does not constitute such a favourable resolution. That is, that it does not mean or imply innocence of the charges originally presented and that it leaves open the possibility that the same charges may be laid again. That submission was later withdrawn by counsel for Inspector Robbins but was maintained by counsel for Lynette Crimmins. Support for that submission was said to result from the decisions in Goddard v Smith (1704) 6 Mod Rep 261; (1704) 87 ER 1007 and Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 recently followed and applied by Nettle J in the Supreme Court of Victoria in Skrijel v Mengler [2003] VSC 270. However, there is also a substantial body of authority upon which the plaintiff relies, for the proposition that the presentation of a nolle prosequi in such circumstances does satisfy the requirements for a resolution of the proceedings in favour of the plaintiff: Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527 at 535; Grainger v Hill [1838] EngR 365; (1838) 4 Bing (NC) 212; (1838) 132 ER 769; Mann v Jacombe [1961] NSWR 273; Taylor v President of the Shire of Eltham [1922] VicLawRp 1; (1922) VLR 1; Hill v Varley (1923) QWN 23 and Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35 per Isaacs J at 89.

232 Then there is the sequential issue of whether, in a case where a nolle prosequi has been presented, and if an action for malicious prosecution therefore is available, whether there is an onus upon the plaintiff to establish, in the action itself, that he was "innocent" of the charge: Grimwade v State of Victoria (1997) 90 A Crim R 526 and Cameron v James [1945] VicLawRp 18; [1945] VLR 113 at 117. In this regard, the significance of other authority to the effect that the action will lie where the defendant has discontinued the original proceedings: Watkins v Lee [1839] EngR 343; (1839) 5 M & W 270; (1839) 151 ER 115, and the rules that acquittal on a technical point, or by a judgment on appeal, or acquittal of the particular charge although accompanied by conviction of associated charges, will satisfy these requirements need to be considered. Equally relevant is the rule that a refusal by an Attorney-General to file an indictment after the initial laying of charges will satisfy the requirements for termination of the proceedings in favour of the plaintiff: Van Heeren v Cooper [1999] 1 NZLR 731 CA and Commonwealth Life Insurance Association Ltd v Smith (supra).

233 In the Director of Public Prosecutions (South Australia) v B [1998] HCA 45; (1998) 194 CLR 566, the majority of the High Court held that a question arising over whether or not a Judge of the Supreme Court of South Australia had power to refuse to accept a nolle prosequi tendered by the prosecution were not questions arising from the trial of the accused and, consequently, questions reserved by the Judge concerning his power to do so were incapable of referral and should not be answered. In the course of the hearing in DPP (SA) v B (supra) it was submitted - and counsel for the intervening Attorney-General of Western Australia supported the submission - that in such circumstances a trial Judge had no discretion but to accept and give effect to a nolle prosequi which was presented by the prosecution and that decisions, including the decision of the Full Court in this State in R v Lorkin (1995) 15 WAR 499, to the effect that in certain exceptional cases, and to avoid an abuse of process, a trial Judge had a discretion to refuse to accept a nolle prosequi, were wrong. In doing so, counsel for the Attorney General for Western Australia submitted, that "upon the entry of a nolle prosequi the court's jurisdiction ceases. The accused thereafter has the benefit of the presumption of innocence". In the event, it was unnecessary for the court to decide upon those submissions and the Justices comprising the majority of the court did not address them. It follows, therefore, that the decision in R v Lorkin (supra) remains binding upon me. However, it is nonetheless interesting to note and accept the point that, where a nolle prosequi is entered, the accused has the benefit of the presumption of innocence, not only because that is the position with any accused person but, further, because the charge which that accused faced has been withdrawn.

234 At common law the power to enter a nolle prosequi is vested in the Attorney General, or in counsel acting on his authority: R v Rowlands [1851] EngR 926; (1851) 17 QB 671; and R v Beveridge (1909) 9 SR (NSW) 676. In this State the power is also vested in the State DPP or a person to whom the Director has delegated that authority: Director of Public Prosecutions Act 1991(WA), s 6 and s 20. A nolle prosequi can be entered at any time after the indictment or information has been signed and before verdict: R v Sneesby [1951] St R Qd 26. The practice by which a nolle prosequi is entered differs, but not in substance, between the states.

235 In Western Australia it is common practice for the nolle prosequi to be handed up as a written memorandum: R v Lorkin (supra). The procedure is discussed in more detail by Debelle J in Question of Law Reserved on Acquittal (No 3 of 1995) [1996] SASC 5679; (1996) 66 SASR 450 at 456 - 460. The effect of the entry of the nolle prosequi is to terminate the proceedings without an acquittal (or a conviction) and it does not bar a subsequent charge or trial: Davis v Gell (supra) at 287; and Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583 per Dixon J at 599. Because, generally speaking, the decision to enter a nolle prosequi is an unreviewable executive decision of the State: Maxwell v The Queen (1996) 184 CLR 501; and Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75. Subject only to the right of the court to act to prevent an abuse of process, the reasons for the entry of the nolle prosequi cannot be demanded. Nevertheless, several cases have proceeded on the basis that such reasons may be given by prosecuting counsel: Question of Law Reserved on Acquittal (No 3 of 1995) (supra) per Debelle J at 470; R v Jell [1991] 1 Qd R 48 per Thomas J at 62; and Skrijel v Mengler (supra) per Nettle J at [231]. Although these cases allow for the possibility that the reasons given for entering a nolle prosequi may be unmeritorious (see Thomas J in R v Jell (supra) at 62), they provide few guidelines as to the scope or propriety of comments which may be made.

236 Nevertheless, there must be some limits because if any such statement or explanation is to be permitted in open court in a situation where absolute privilege applies, it must conform to the proprieties requiring the utmost candour and independence of counsel and be based upon instructions or facts which counsel is personally satisfied exist or could be established and take into account known countervailing contentions which the accused or his counsel would wish to put if there were an opportunity to do so. Because the filing of the nolle prosequi will usually terminate the proceedings, its effect deprives the accused of the opportunity to contest the charge or the facts alleged by the prosecution, to give or call evidence in his or her defence, and to obtain an impartial and independent decision of the jury or the court upon any matters in issue. The reason for the privilege of counsel is to allow all matters in controversy, whether fact or law, to be put fairly and fearlessly without the risk of personal liability. However, it is subservient to the principal purpose to be achieved, namely, to determine by the proper processes of law whether or not the accused is guilty of the charges laid.

237 It would, therefore, in my view, be a serious abuse of the role of prosecuting counsel and of the privilege obtaining in the court room, if, when explaining the reasons for withdrawing the charge by presenting the nolle prosequi, prosecuting counsel sought to suggest or to imply that, contrary to any denials by the accused, the accused was in reality guilty of the offence and that the nolle prosequi was being filed because of tactical reasons or handicaps faced by the prosecution in proving its case. To do so would be to asperse the accused and to misuse the occasion of privilege, since any such statement would convey an imputation of guilt by the prosecutor who had the burden of proof but who was not willing to attempt to discharge it. It follows, therefore, that a court could, and should, exercise supervision over any statements being made by a prosecutor when giving reasons for filing a nolle prosequi unless, of course, those reasons are accepted by the accused in, for example, a situation where the decision was made for compassionate reasons: cf. Skrijel v Mengler (supra).

238 What, then, is the significance in entering a nolle prosequi for an accused person who subsequently brings an action for malicious prosecution against the person or persons who originally instituted or instigated the charges? Plainly, such an accused person is powerless to achieve a more favourable outcome. He or she cannot compel, even if they wished to do so, the trial to proceed. Still less, can a judgment, after a verdict by a jury or by a Judge alone, be entered in the hope that the accused would be vindicated by an acquittal. Such a person can do nothing more than accept the termination of the proceedings as a demonstration that the person or authority who originally had the responsibility of proving the charge has decided not to attempt that task.

239 Both defendants in the present action originally submitted that the entry of the nolle prosequi on the indictments presented against Noye did not constitute a favourable termination of the proceedings and that, consequently, these actions must fail because of the inability of Noye to establish that those proceedings terminated in his favour. However, counsel for Inspector Robbins abandoned that point in final submissions (see written submissions par 55). For this proposition the defendants had relied upon Davis v Gell (supra); and Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527; and the very recent discussion of those decisions by Nettle J in Skrijel v Mengler (supra) which distinguished the later decision, apparently to contrary effect, of the Supreme Court of New South Wales in Mann v Jacombe (supra).

240 In Davis v Gell (supra), the court held that in an action for malicious prosecution the plaintiff must prove his innocence. The fact that a nolle prosequi was entered at his trial, although it establishes that the proceedings terminated in the plaintiff's favour, does not establish the plaintiff's innocence, whereas a verdict of acquittal does establish innocence as well as demonstrate that the proceedings terminated in favour of the accused. In Commonwealth Life Assurance Society Ltd v Smith (supra), an action for malicious prosecution was brought following a charge of conspiracy made against the plaintiff in respect of which the Attorney General, after the plaintiff had been committed for trial, had declined to file any indictment. There was no nolle prosequi because there had never been an indictment. At 543, Rich, Dixon, Evatt and McTiernan JJ said:

"Except in the case of a nolle prosequi covered by the decision in Davis v Gell [supra], we are of opinion that the guilt or innocence of the plaintiff is not an issue going to the cause of action in malicious prosecution."

"For the reasons already given, the basis of the action puts out of consideration any question of actual guilt. The failure of the proceedings brought by the defendant, the absence of any reasonable cause and malice are the grounds."

"In other words, for the purpose of malicious prosecution, the law should consistently treat the question as disposed of in the criminal proceedings, the propriety of the conclusion of which ought not to be canvassed."

This has left a controversy, and a conflict in subsequent decisions below the level of the High Court, about whether or not the filing of a nolle prosequi is a sufficient basis for maintaining an action for malicious prosecution and, if so, whether the plaintiff must additionally prove that he is innocent of the charges laid. The older authorities, and the controversy as it then stood, were discussed in detail by a helpful article by Donovan G P, "The Effect of a Nolle Prosequi in Relation to the Action for Malicious Prosecution" (1939) 12 ALJ 457; but there have been significant other decisions since then.

241 I consider that Davis v Gell (supra) demonstrates that, in any action for malicious prosecution, the plaintiff must establish the falsity of the charge complained of and must do so by showing his innocence. In cases where the plaintiff was acquitted after trial (whether on facts or because of any technical defect or inadequacy in the indictment or the charge), that acquittal is to be treated as the establishment of innocence. However, without such an acquittal, because a nolle prosequi was filed, that is not conclusive evidence of innocence and it is still for the plaintiff to prove that by other means in the subsequent civil action. By contrast, in Commonwealth Life Assurance Society Ltd v Smith (supra), the court held that it was not necessary for the plaintiff to prove innocence of the charges brought against him or her. Nevertheless, it did not overrule or reject the decision in Davis v Gell (supra) that in a case involving the filing of a nolle prosequi it remained for the plaintiff to establish his innocence by some additional means, leaving the issue of guilt or innocence open for inquiry in an action for malicious prosecution brought after the filing of a nolle prosequi. An obvious point of difficulty emerging from Smith's case (supra) is that if the entry of a nolle prosequi is an insufficient termination of proceedings for the purposes of an action for malicious prosecution, then to allow affirmative proof of innocence in the civil action to supply that deficiency is to proceed upon the assumption that the rule requiring favourable termination of criminal proceedings requires proof of the plaintiff's innocence - a proposition inconsistent with the rejection of the relevance of guilt or innocence of the plaintiff in Smith's case (supra) itself. The inconsistency becomes apparent when one considers the previously long accepted view that the importance of the termination in the plaintiff's favour is not that he or she is innocent but that he or she has not been convicted: see Salmon and Heuston on the Law of Torts, (2000) 20th ed (1992) at 412; Clerk and Lindsell on Torts, 18th ed [16] - [19].

242 In Smith's case (supra) the court referred to the old decision of Goddard v Smith (1704) 6 Mod Rep 261; (1704) 87 ER 1007, and concluded that it did not support the proposition that an action for malicious prosecution could not be brought following a nolle prosequi; and was some authority for the proposition that the effect of the nolle prosequi may not be to discharge any further prosecution upon an indictment, but simply to put off the defendant sine die, with the possibility that a new process might issue upon an offence. From this it can be concluded that the entry of a nolle prosequi constitutes as much of a favourable termination as, from their nature, the criminal proceedings were capable of producing in the events which happened; and that it terminates the immediate indictment and must therefore be regarded as putting an end to that particular prosecution without foreclosing the possibility of another. This is because the procedure adopted by the prosecution precludes the possibility of a judicial determination, so that it would be unjust that the plaintiff should be prevented from bringing an action for malicious prosecution - see Steward v Gromett [1859] EngR 966; (1859) 7 CB (NS) 191; (1859) 141 ER 788, cited in Davis v Gell (supra) by Isaacs ACJ at 286 and, by observations to similar effect, by Starke J at 297.

243 Furthermore, the law treats the termination of criminal proceedings because of a defect in the indictment or because of want of jurisdiction of the court as sufficient to justify an action for malicious prosecution even though such cases will usually be as, if not more, equivocal of the innocence of the accused than a discharge after a nolle prosequi. If, as Smith's case (supra) has held, in all instances but discharge following a nolle prosequi, in the subsequent action for malicious prosecution the actual guilt or innocence of the plaintiff is an irrelevant issue, that would appear to be because the action for malicious prosecution requires the plaintiff to establish that the original prosecutor did not have reasonable and probable cause for bringing the charge. Conviction of the person charged after trial (not set aside on appeal) will, of necessity, render proof of the absence of reasonable and probable cause impossible. However, the action for malicious prosecution will still lie following the discharge of the accused after a successful appeal following a conviction at trial because, in that case, the proceedings have terminated in the plaintiff's favour. Although, in such a situation, it might be expected to be difficult to establish, as a fact, the absence of probable and reasonable cause for laying the charge.

244 In Mann v Jacombe (supra), Evatt CJ, Herron and Sugerman JJ decided that the entry of a nolle prosequi constituted sufficient favourable termination of proceedings to maintain an action for malicious prosecution. The case was decided upon a demurrer which cited, and purported to apply, both the decisions in Smith's case (supra) and Davis v Gell (supra). Similarly, in Earnshaw v Loy (No 1) [1959] VicRp 43; [1959] VR 248 at 249, Sholl J said, of Smith's case:

"That case and other cases now appear to establish clearly that, except where there is a nolle prosequi, the favourable determination of the criminal proceedings cannot be controverted in the subsequent civil action, at any rate as a separate issue."

245 In Skrijel v Mengler (supra) at [227], Nettle J referred to the express observation of the decision in Davis v Gell in Mann v Jacombe and then said:

"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. Until the High Court says otherwise, the law in relation to nolle prosequi remains as in Davis v Gell." [Citations omitted.]

Nettle J then went on to distinguish Mann v Jacombe as being concerned with the niceties of pre- Judicature Act pleading in New South Wales, where it was only necessary for the plaintiff to prove his innocence at trial and not to plead it. His Honour then referred to American authorities which had held that a nolle prosequi should only be regarded as a favourable termination of the criminal proceedings if the reasons given for the nolle were consistent with the innocence of the accused, rather than for a procedural or technical defect. Her Honour did not adopt that approach.

246 While, for reasons of principle, I am disposed to favour the approach taken by the Full Court of the Supreme Court of New South Wales in Mann v Jacombe (supra), I am mindful of the need to conform strictly with the binding authority of the High Court and, therefore, with Davis v Gell and Smith's case (supra), to decide that proof of the filing of a nolle prosequi is insufficient, by itself, to establish the termination of the criminal proceedings in the plaintiff's favour. Therefore, I need to consider whether or not there is other evidence which, taken in combination with the filing of the nolle prosequi, proves, on the balance of probabilities, the innocence of the plaintiff which, otherwise would be assumed from a verdict of acquittal.

247 In practical terms, this causes no real difficulty in the present case because Noye has always maintained, and given sworn evidence in these proceedings, that he never corruptly agreed or decided to write-off the investigation into the theft of diamonds from the Argyle mine, either in combination with Roddan, or with any other person or at all. He also denied preparing, or assisting Lynette Crimmins to prepare, a fraudulent insurance claim arising from the burglary of her premises at Lincoln Street, Highgate, in 1992. He absolutely denied delivering a copy of the D'Anna report to Roddan; and he also said that, when delivering the soil analysis reports to Roddan, in company with Gwilliam, in March 1992, that he was acting with the express approval of Superintendent Ayton and in furtherance of a considered strategy to advance the investigation by accelerating the prospects for a decision of the District Court in the interpleader proceedings.

248 Neither of the defendants directly sought to suggest that Noye was in fact guilty of unlawfully disclosing the D'Anna Report to Roddan. Indeed, that particular allegation had been withdrawn by the prosecution before the second indictment. Neither did counsel for Inspector Robbins plead, submit or cross-examine to the effect that Noye was guilty of participating in a fraudulent insurance claim. Neither defendant called, or offered any explanation for not calling, Barry Crimmins or Gwilliam to attempt to prove that Noye had made admissions of misconduct during his interview with Barry Crimmins in Shepparton in November 1992 or had compromised himself in dealings with Roddan over the soil analysis reports or at other meetings.

249 Neither of the defendants set out to prove that Noye was indeed guilty of all or any of the charges laid, although Lynette Crimmins did give evidence to the effect that Noye had repeatedly accepted cash money from her; had spoken in her presence of expecting $200,000 from Roddan after the completion of the investigation; had boasted that he would get first pick of the diamonds; had said that he would look after her; had warned her about speaking to Gwilliam; had prepared a false list of items alleged to have been stolen from her Lincoln Street apartment; had participated in the making of a false insurance claim; and, had demanded, and received, $1000 cash from the diminished proceeds of the insurance claim. However, I am not prepared to accept those allegations by Lynette Crimmins, not only because of the many shortcomings affecting her credibility which I have already described, but because of my unqualified impression of her when giving evidence. That is, she was frequently contrived in her answers, evasive, manipulative and greatly prejudiced, not merely against Noye, but against all police officers, and that she had, throughout, been motivated by a consuming hostility towards Roddan with whom she, rightly or wrongly, associated Noye.

250 For these reasons, therefore, I am satisfied that on all the evidence it should be concluded that the criminal proceedings were terminated in Noye's favour and that the attempts, such as they were, to show that he was guilty of any of the offences have failed. He has denied guilt, and has the benefit of the presumption of innocence. This means that he is able to maintain his actions for malicious prosecution.

(c) The absence of reasonable and probable cause

251 The element of the absence of reasonable and probable cause for instituting the proceedings contains both objective and subjective components. Experience has shown that it is often productive of difficulties in practice because, essentially, it requires the plaintiff to establish a negative, rather than for the defendant to prove the existence of reasonable and probable cause. However, the reasonable and probable cause which must exist requires subjective belief by the defendant in the propriety of instituting the charges (itself a question productive of further controversies) and the existence as a matter of objective fact of reasonable grounds for the institution of the proceedings. Whether it is necessary for the defendant to have an honest and reasonable belief in the guilt of the plaintiff when laying the charges, or whether it is sufficient for him to have an honest and reasonable belief that there are proper grounds to warrant the plaintiff being put on trial for the alleged offences, was previously considered to be controversial. This issue was thought to arise from differences in approach taken by Jordan CJ in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 and the dicta of Dixon J and other Justices of the High Court in Sharp v Biggs [1932] HCA 54; (1932) 48 CLR 81 and Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343. However, it has recently been explained and dispelled in A v State of New South Wales [2007] HCA 10. That decision was pending in the High Court of Australia at the time of this trial but has since been delivered. Counsel in the present case relied on the New South Wales Court of Appeal decision in A v State of New South Wales [2005] NSWCA 292; (2005) 63 NSWLR 681, but were aware that special leave to appeal had been granted. Consequently, I reserved leave for any of the parties to apply to file further written submissions or to re-list this case for further submissions in the event that the decision of the High Court was given before my reasons for judgment in the present case were published. Since the decision was given by the High Court, the solicitors for the parties have notified this Court that they do not wish to make any further submissions beyond drawing the decision to my attention.

252 It is necessary to appreciate that malice of the requisite kind is not merely spite or ill will against the complainant but can be constituted by the existence of indirect or improper motives. Examples or indirect or improper motives which appear from the cases include where the prosecution was for perjury to stop the plaintiff's mouth: Hadrick v Heslop & Raine [1848] EngR 13; (1848) 12 QB 267; and where the defendant's object was to punish someone in order to deter others: Stevens v Midland Counties Railway [1854] EngR 661; (1854) 10 Exch 352; (1854) 156 ER 480; and Abrath v North Eastern Railway Co (1883) 11 QBD 440. In Glinski v McIver (supra), the alleged purpose of the prosecution was to punish the plaintiff for giving evidence in other proceedings and this was held to be capable of constituting malice. It has also been held that where a prosecutor had nothing before him but circumstances of mere suspicion: Bradshaw v Waterlow & Sons Ltd [1915] 3 KB 527; or where he knew that the acts on which the prosecution were founded upon were done openly and in good faith in assertion of a legal right, there is, in general, no reasonable and probable cause - Wilkinson v Foote (1856) 5 WR 22. See also Halsburys Laws of England vol 45(2) at [470]-[473].

253 The test adopted in Victoria in Farrington v Thomson [1959] VicRp 49; [1959] VR 286 per Smith J at 293 was that there must be a consciously wrongful exercise of power by the public officer. See also Grimwade v State of Victoria (supra) per Harper J at 567 - 568.

254 Therefore, malice will be proved where an accused can show that, in laying a charge, a prosecutor was actuated by motives other than a desire to bring the accused to justice: Hicks v Faulkner (1878) 8 QBD 167; Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 and Glinski v McIver (supra). Consequently, charging an accused with an offence due to succumbing to pressure from bureaucratic superiors to lay a charge, may, in some cases, support a finding of malice.

255 The two elements, that is the absence of reasonable and probable cause, on the one hand, and the institution of the proceedings as a result of malice, on the other, are separate and distinct components of the tort and proof of each must be established. The bringing of a prosecution through malice, but where there was also reasonable and probable cause to institute the prosecution, will not suffice. Similarly, if there was no reasonable or probable cause to bring to prosecution but the conduct of the prosecutor was not malicious, in the proper sense of the term, the claim will also fail. Nevertheless there is a potential for interaction between these two components because the absence of reasonable and probable cause for the institution of the proceedings may, depending upon the particular facts, more readily justify a finding of malice being made. Conversely, a finding that the prosecutor acted maliciously may more readily lead to a finding that the prosecutor's belief in the justification of charging the accused was distorted by malice or prejudiced by improper motives: Glinski v McIver (supra); and Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76. Despite this potential for interaction between these two components of the tort, it is nevertheless clearly the case that proof of the existence or absence of the one does not automatically or necessarily amount to proof of the absence or presence, as the case may be, of the other.

256 In the present case, Inspector Robbins has strenuously maintained that, at all times, he acted in good faith and without malice or collateral motive and honestly reached the decision that the circumstances gave rise to a reasonable and probable cause for laying the charges against Sergeant Noye. Further, he maintained that at an objective level there existed reasonable and probable cause to charge him with those offences. Lynette Crimmins' position is that she was never a prosecutor and that, accordingly, the presence or absence of reasonable and probable cause for the institution of the proceedings is of no relevance to her position but, otherwise, she adopts the submissions of Inspector Robbins that there did exist at an objective level reasonable and probable cause for the charges to be laid. Similarly, Lynette Crimmins denies that she ever acted maliciously towards Sergeant Noye, contending that when she made statements to the police about alleging his involvement in the Argyle diamond theft conspiracy and the subsequent cover up of the police investigations, she was honestly relaying information which had been provided to her by Roddan and giving an account of her own observations of what she regarded as incongruous intimacy between Roddan and Noye. She denies that she acted maliciously in this regard.

257 From the plaintiff's perspective the allegations of malice advanced against Inspector Robbins are as follows:

(a) He laid the charges to improve his prospects of advancement within the Police Force and, in particular, to secure his appointment to the substantial rank of Inspector.

(b) He instituted the charges at the direction of, or because of pressure by, superiors in order to allay the climate of public criticism, led by press reports, which was developing over the Argyle diamond theft inquiry.

(c) He had no personal belief that Sergeant Noye was guilty of the offences charged.

(d) He simultaneously caused the institution of the police disciplinary charges in order to destroy Noye's police career.

(e) He acted under or accepted direction or influence by officers of the State Director of Public Prosecutions and failed to exercise a considered personal decision whether or not to lay the charges.

258 In support of these allegations of actual malice, the plaintiff submits that there are a series of circumstances which point towards, and justify, a finding of such malice being made. Prominent among these allegations is the assertion that, at all material times, Lynette Crimmins was an untrustworthy and unreliable witness whose allegations could not on any basis be regarded as sufficient to support the case against Sergeant Noye. Further it is submitted that apart from the allegations of Lynette Crimmins and the equivocal testimony of Barry Crimmins, which amounted to no more than an impression of incongruous behaviour by Sergeant Noye in making his visit to Shepparton in November 1992, which was itself equivocal and inconclusive, there was no other direct evidence to implicate Sergeant Noye in improper conduct. Further, it is submitted that malice should be inferred from the fact that despite Noye making a series of statements to his superiors and to Inspector Robbins denying any improper conduct, his protestations of innocence were not adequately investigated or considered and the decision to lay a charge against him in such circumstances must therefore have been malicious. The plaintiff places reliance on the decision in Jenner v Harbison [1879] VicLawRp 105; (1879) 5 VLR(L) 111 for the submission that where a plaintiff's explanation of the facts is consistent with innocence, a defendant must have reasonable grounds for disbelief, and that failing to check a plaintiff's story in such circumstances, can lead to an inference not only of the absence of reasonable and probable cause but of actual malice: Assheton v Merrett [1928] SASR 11. However, on the other hand, this may be inconclusive: see Turner v Wright [1880] VicLawRp 137; (1880) 6 VLR (L) 273.

259 A further submission by the plaintiff of a circumstance pointing towards the existence of malice is the alleged extravagant and unsupported submissions made by counsel for the prosecutor in the Magistrates Court at the bail hearing, which were made in the presence of Inspector Robbins and which were never withdrawn or corrected. Still another factor pointing towards the existence of malice, relied on by the plaintiff, is the contention that the decision to institute proceedings against Sergeant Noye and to continue them was heavily influenced by the conduct and allegations of Sergeant Gwilliam who, to Inspector Robbins' direct knowledge and observation, was implacably hostile toward, and prejudiced against, Sergeant Noye. The submission is that Gwilliam had also shown himself to be irresponsible and insubordinate in the way he conducted the investigation into the Argyle diamond thefts. That is, without proper co-operation with the internal affairs inquiry and by actually leaking, or being responsible for the leaking, of adverse information about Sergeant Noye to the press immediately before and after the arrest of Roddan.

260 It was also suggested that a "deal" was reached with Barry Crimmins by the task force headed by Sergeant Gwilliam that concessions would be given to Crimmins in the nature of the charges laid and for the arrangements for his arrest in return for co-operation and evidence from him which would lead to the implication of Roddan and, by extension, Noye. This submission proceeded to contend that this was a further reason, known by Robbins, to exercise reserve in relying upon the reliability of any testimony of Barry Crimmins.

261 In regard to the fifth and final component requiring proof of damage resulting from the malicious prosecution, the plaintiff contends that he was injured in his fame and character by reason of the prosecutions which were commenced; that his career in the Police Force was destroyed; and, that his resignation on the basis of ill health was forced by this malicious prosecution. He says, as a consequence, he was obliged to incur significant expenditure in engaging legal representation to defend himself in the criminal proceedings (in which he was ultimately successful), and has lost opportunities for promotion to the rank of inspector or above and the higher remuneration which he would then have earned had he not been forced out of the Police Force. Neither defendant contends that damages of this kind, suffered by the plaintiff, would not be damages which would satisfy the fifth component of this tort. However, Inspector Robbins, by his counsel, has alleged that the disciplinary charges alone were more than enough to bring about the end of Sergeant Noye's police career; that because of these he was not of good fame or character; and, that it is improbable that he would ever have been promoted further had he remained in the Police Force.

262 In support of the allegation that Lynette Crimmins was the effective prosecutor of the criminal charge, and that Inspector Robbins was the effective prosecutor of the disciplinary charges, the plaintiff relies on the decision of the House of Lords in Martin v Watson [1996] AC 74 for the proposition that, if the only available witness as to the critical facts gives false and malicious information to the police, that person may be treated as the prosecutor of the proceedings for the purposes of the tort of malicious prosecution. That submission is designed to invoke the rule that any person who makes the charge, or who is actively instrumental in making or prosecuting the charge, is deemed to prosecute it: Austin v Dowling (1870) LR 5 CP 534 at 538, 540; Danby v Beardsley (1880) 43 LT 603; and Osterman v Bateman [1848] EngR 981; (1848) 2 Car & Kir 728.

263 The next cause of action is misfeasance in public office. This is distinctly alleged against Inspector Robbins but not against Lynette Crimmins. The requirements for this tort have been reviewed extensively in Northern Territory of Australia v Mengel (1995) 185 CLR 307. The cause of action is available against any holder of a public office, if the office holder acted maliciously or knew that his action was beyond power and was likely to harm the plaintiff. An element of the cause of action is an intention to cause harm to the plaintiff: Mengel's case (supra) at 345. A public officer, for the purposes of the action, includes a police officer carrying out coercive duties: Farrington v Thomson [1959] VR 286 at 292; and Racz v Home Office [1994] 2 AC 45; and, of relevance to the present action, it includes a police officer in the course of investigating the commission of alleged offences: Garrett v Attorney-General [1997] 2 NZLR 332; and Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122. The tort of misfeasance in public office involves the necessity to prove bad faith on the part of the office holder defendant. This can be accomplished by demonstrating that he or she acted in pursuit of an improper or collateral purpose and with the intention to harm the plaintiff. The same element may be satisfied by proof that the office holder was acting in the knowledge that the conduct was beyond power and that it was likely to harm the plaintiff; but there must be actual knowledge of want of power.

264 There is no doubt, in his capacity as an investigating police officer, Inspector Robbins was, at the material times, a public officer for the purposes of this cause of action. However, as a serving police officer he did have the power to charge the plaintiff with the commission of the alleged criminal offences and, for that matter (if he was the effective prosecutor), to arrange for him to be charged with the particular internal police disciplinary offences. Therefore, there can be no suggestion of him acting without any power or authority and, if the other ingredients of the tort are to be established, it will be for the plaintiff to show that Inspector Robbins was acting maliciously with the intention to harm the plaintiff and doing so in a manner which exceeded the proper exercise of his power. For the purposes of this cause of action, that will require an evaluation and consideration of the evidence bearing on those issues.

265 The elements of the tort of misfeasance in public office were acknowledged to be in some respects unsettled by Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Mengel's case (supra) (at 345 - 346). However, a helpful description of those components, which still may not eliminate some areas of ambiguity or remaining controversy, can be found in the judgment of Deane J, at 370 - 371, where his Honour said:

"As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahara Municipal Council [1982] AC 158 at 172, the tort of misfeasance in public office is 'well-established'. Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in circumstances of a particular case. The critical element for present purposes is malice.

In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff (see Bourgoyne SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 776-777). Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness (cf Owen v Homan [1853] EngR 883; (1853) 4 HLC 997 at 1035; [1853] EngR 883; 10 ER 752 at 767, per Lord Cranworth LC: 'wilful ignorance.') to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied."

266 One of the areas of ambiguity is the requirement for an "invalid or unauthorised act" because this does not require the absence of any power to do the act which is challenged but rather refers to an abuse of the exercise of that power amounting to misfeasance: see Elliott v Chief Constable of Wiltshire The Times, December 5, 1996. For example, it has been acknowledged that a claim for misfeasance in public office might overlap with an action for malicious prosecution: see Clerk and Lindsell on Torts 18th ed (2000) at [17-138]. One of the potential attractions of such a cause of action in those circumstances is that the claimant would not need to prove that the defendant lacked reasonable and probable cause for his actions. Importantly, for present purposes, if the plaintiff could show that Inspector Robbins acted maliciously in laying the charges against him, either because of personal ill will or because of the improper motive to use him as a scapegoat for criticisms which were being directed against the Police Force for the delays and irregularities in the diamond theft investigation arising from the Argyle diamond mine, then an inability of the plaintiff to prove absence of reasonable or probable cause for bringing the prosecution would not prevent success in the claim for misfeasance in public office.

267 In this respect there are also direct similarities between the facts necessary for the establishment of this tort in the present case and that of collateral abuse of process, except that for the latter it is unnecessary to prove that the defendant was a public officer: see also McKechnie v Campbell (1996) 17 WAR 62.

268 The pleadings do not distinctly allege a claim for damages for abuse of process, but this potential cause of action was addressed in the course of the trial. Having regard to the common law system of pleadings and the manner in which the case was argued, if the facts reveal proof of this tort the plaintiff is entitled to such relief as may be due: Supreme Court Ac 1935 (WA), s 24(7); see also Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 per Barwick CJ at 472 - 473. It is, therefore, necessary to identify the elements of this tort.

269 In The Laws of Australia, vol 33(8), at [127], the origin nature and components of this tort are described:

"Collateral abuse of process occurs when the process of the court is put in motion for a purpose which in the eye of the law, it is not intended to serve. [It was] recognised in ... Varawa v Howard Smith & Co Ltd [1911] HCA 46; (1911) 13 CLR 35; Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; (1915) 20 CLR 509 and Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 [and] was first established in Grainger v Hill [1838] EngR 365; (1838) 14 Bing (NC) 212; 132 ER 769 as a new action on the case."

270 The courts have attempted to achieve a formulation of the tort which keeps it within reasonable bounds. The concept of improper purpose and fraud have been used so that to establish the tort the purpose must be to use the proceedings as a means of obtaining some advantage for which they are not designed, or some collateral advantage beyond what the law offers. The test for impropriety is whether the predominate purpose was an improper one in the sense that the legal process was used for a purpose other than for which it was designed. This need for fraudulent resort to the process utilised in order to achieve a collateral purpose is required to be found to establish the action: see per Isaacs J in Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; (1915) 20 CLR 509 at 521 - 522.

271 The action for collateral abuse of process differs from the older action on the case for malicious prosecution in that the plaintiff need not show either that the initial proceedings terminated in his or her favour or that there was an absence of reasonable and probable cause for their institution: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 522. These observations are taken from The Laws of Australia (op cit).

272 In the particular circumstances of this case the requirements of this cause of action would be satisfied if the plaintiff could establish that by charging him with criminal offences Inspector Robbins was motivated not by any desire to prosecute a bona fide case alleging the commission of criminal offences but, rather, was actuated by a desire to set criminal prosecutions in motion in order to demonstrate that the Police Force was taking steps to deal with public concern arising from criticism of its conduct over the investigation of the Argyle diamond thefts, so as to counter suggestions that the force was soft on police corruption. The cause would also be established if the plaintiff proved that Inspector Robbins initiated a prosecution in which he had no belief so as to make a scapegoat out of Sergeant Noye, and, thereby, to avoid or to reduce criticism or embarrassment of the Police Force arising out of the attention which had been given to the Argyle diamond affair and the associated allegations of police corruption. In other words, if the prosecution was nothing other than a means to divert attention from shortcomings in the police investigation and the criticisms which had arisen, without any genuine belief that a sufficient case to answer had been demonstrated against Sergeant Noye to warrant him being charged, a case of collateral abuse of process would be shown. An associated issue, not directly raised by the submissions of the parties but deriving from them, is whether a similar cause of action would arise from instituting the police disciplinary charges against Sergeant Noye, if they had been instituted for the same improper or collateral purpose.

273 When it comes to a case for damages for collateral abuse of process against Lynette Crimmins the plaintiff would need to show that Lynette Crimmins had indeed instituted proceedings. A question therefore arises as to whether her alleged role in causing the proceedings to be instituted and prosecuted rather than instituting them herself, would be sufficient and, whether or not, in her case that was done for an improper collateral motive such as, for example, to avenge herself against Roddan and, by extension, Sergeant Noye.

274 In each action the plaintiff also raises injurious falsehood, the tort known by different names including malicious falsehood. As said in Clerk and Lindsell on Torts (supra) at 2302 the general principle for this action is contained in Ratcliffe v Evans [1892] 2 QB 524 per Bowen LJ at 532:

"[A]n action will lie for written or oral falsehoods, whether actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage ..."

275 The tort requires proof that the defendant published words about the plaintiff which were false, that this was done maliciously and that special damages followed as the direct and natural result.

276 As a substantial cause of action this perhaps has greater prospects of application in the case against Lynette Crimmins because of the distinct allegations which she made against Sergeant Noye. Although the cause of action is also alleged against Inspector Robbins, no precise allegation of false publications have been made against him, rather the plaintiff's complaint is that he instituted prosecutions maliciously or as a result of an abuse of process. There is a distinction, which is by no means insignificant, and which must be respected, between laying a charge which amounts to an allegation and publication of a statement alleging a fact.

277 The definition of the components of the tort in Ratcliffe v Evans (supra) have been accepted in Hall-Gibbs Mercantile Agency Ltd v Dun [1910] HCA 66; (1910) 12 CLR 84 and in Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 per Hunt J at 799. Although the origin of the cause of action is associated with statements aspersing or disparaging the plaintiff's goods or trade, a maliciously false statement which is likely to injure the plaintiff in his or her profession or trade is within its ambit: Hall-Gibbs Mercantile Agency Ltd v Dun (supra). So it has been said in Trindade F and Cane P, The Law Torts of Australia 3rd ed (1999) at 188, that if a statement is made by a defendant, and the defendant honestly believes it to be true, but is made not for the purpose of protecting or advancing the defendant's own interests, but solely or primarily for the purpose of injuring the plaintiff's property or business interests, then the statement, if it turns out to be false, is published maliciously notwithstanding the bona fides of the belief of the defendant: Wilts United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1957] RPC 220; and The Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95.

278 Kirby J, in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at 419, refers to this cause of action as a "rare and anomalous tort" and traces its history. This reveals the origins of the tort in the actions for slander of goods or slander of title. A degree of uncertainty remains about how far the cause of action can be invoked for claims of damages for false statements about an individual. The consensus of opinion appears to be that the action may be maintained in such a situation, even though it may overlap to a significant degree, with the tort of defamation, particularly where the malicious false statement affects the person of the plaintiff in his business, professional or commercial interests (the wider application of the tort espoused by Fleming J G, The Law of Torts 9th ed (1998) at 778).

279 This uncertainty about this scope of the tort was noted by Gleeson CJ in Palmer Bruyn & Parker Pty Ltd v Parsons (supra) at 393, although the issue did not require resolution in that case. It was discussed more comprehensively by Gleeson CJ (then Chief Justice of the New South Wales Supreme Court) in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 693, but, again, the issue did not require conclusive determination, although the potential overlap of the tort with defamation was fully recognised and accepted. The review of the authorities undertaken by Gleeson CJ in Ballina Shire Council v Ringland (supra) and by leading text writers, Trindade, F and Cane, P The Law of Torts in Australia 3rd ed (1999) at 183 - 184; Balkin R and Davis, A Law of Torts, 3rd ed (2004); Clerk and Lindsell on Torts, 18th ed (2000) at [23-08]; and McGregor on Damages, 17th ed (2003) at [40-014] - [40-019], all independently support the wider thesis for the application of tort espoused by Fleming.

280 The application of the tort to malicious falsehoods which affect the plaintiff's person, in the sense that they reflect adversely upon his or her professional, occupational or commercial standing and interests, also seems to be implicit in the analysis of the tort undertaken by other justices in Palmer, Bruyn & Parker Pty Ltd v Parsons (supra) per Gummow J at 407 (although that point was expressly left open by his Honour), per Hayne J at 437, and per Callinan J at 447.

281 In these circumstances, I consider that I should approach this case on the basis that an action for damages for injurious falsehood will lie for false statements made maliciously against the plaintiff where the statements, because of their very nature, were likely to, and did, adversely affect the plaintiff in his reputation and standing as a police officer because, if they were true, they would reveal his unfitness to continue as a police officer and lead to his discharge or dismissal from the Police Force.

282 Again, the element of malice in the publication of the false statement will be satisfied if the statement is published, knowing it to be false, or with reckless indifference as to whether it is true or false: Schindler Lifts Australia Pty Ltd v Debelak [1989] FCA 311; (1989) 89 ALR 275 per Pincus J at 291.

283 Taking this approach, the substance of the plaintiff's case against Inspector Robbins, under this cause of action, must be that false statements were made by Inspector Robbins asserting that Sergeant Noye had committed the offences of which he was charged, when the defendant either knew that they were false or was recklessly indifferent as to whether they were false or not, and that those statements were made maliciously in the sense of intending to injure the plaintiff in his occupation. That is by knowing or expecting that they would lead to the discreditable termination of, or at least severe damage to, the plaintiff's career in the Police Force, regardless of whether he was in fact guilty of the charges as laid.

284 The basis of the allegation of malice against Lynette Crimmins was that she was motivated by an overwhelming desire to avenge herself against Roddan. Whatever her justifications may have been for implicating Roddan in unlawful conduct, she unjustifiably extended her hostility towards Sergeant Noye whom she regarded, without cause, as being an accomplice of and a sympathiser with Roddan. For that reason, so it is claimed, she extended her own hostility and malevolence with a view to injuring Noye and destroying his career. The allegation is that she had no grounds of any kind to justify the allegations which she made against Noye.

285 The original complaints in the Court of Petty Sessions at Perth against Sergeant Noye (Exhibits 32, 32A and 35) included a series of corresponding charges against Roddan. The first indictment (Exhibit 8) included three counts of conspiracy to steal from Argyle, naming Roddan, Barry and Lynette Crimmins as the three co-conspirators. As noted, those counts of conspiracy to steal by those three disappeared from the second indictment laid against Roddan and Noye alone. However, charges against Lynette Crimmins and Barry Crimmins eventually proceeded on indictment in the District Court of Western Australia. There, on 8 February 1994, both were convicted on their pleas of guilty and then were sentenced by Blaxell DCJ.

The charges against Barry Crimmins and Lynette Crimmins and their convictions

286 Barry Crimmins and Lynette Crimmins had appeared in the District Court of Western Australia on 8 February 1994 on an indictment charging him with one count and her with three counts, of conspiracy to steal and, in the case of Lynette Crimmins alone, with one count of fraud arising from the claim against the SGIO, so as to obtain an improper benefit of $15,787.30 for herself.

287 The first charge of conspiracy alleged conspiracy between 15 March 1988 and 9 August 1993 between Barry Crimmins, Lynette Crimmins and Lindsay Gordon Roddan and others to steal as a servant, diamonds the property of Argyle Diamond Mines Pty Ltd. The second count of conspiracy involved a charge that between 1 January 1990 and 31 December 1992, Lynette Crimmins conspired with Roddan to steal as a servant, diamonds the property of Argyle Diamond Mines Pty Ltd. And the third count of conspiracy alleged a conspiracy from an earlier unknown date, about May 1990, involving Lynette Crimmins and Roddan conspiring to steal as a servant, diamonds the property of Argyle Diamond Mines Pty Ltd. Barry Crimmins pleaded guilty to the first count (the only one involving him personally) and Lynette Crimmins pleaded guilty to each of the four counts.

288 Upon his conviction for conspiracy to steal, Barry Crimmins was sentenced to a term of 4 years' imprisonment and was made eligible for parole. The learned sentencing Judge took the view that an appropriate term of imprisonment would be 8 years, but that it should be halved because of the many mitigating circumstances, the early plea of guilty and the assurances of co-operation with the authorities (Exhibit 37, 10TB 2355). That sentence was imposed on 16 February 1994. Barry Crimmins served his sentence of imprisonment at the Fremantle Police Station as a trustee, rather than being incarcerated in the ordinary prison system.

289 On the same date, Lynette Crimmins was released on a bond to come up for sentence if called upon within three years. The bond was subject to special conditions designed to ensure that she would continue to co-operate with the police, make herself available in future prosecutions, and to continue in the witness protection scheme (Exhibit 37, 10TB 2357).

290 At the sentencing of Lynette Crimmins, her counsel produced a letter of 6 February 1994 from an officer of Argyle who had been closely involved with the investigation. This was a letter which contained significant statements tending to mitigate Lynette Crimmins' personal role in the whole affair and to downgrade (more than the Crown or the District Court accepted) her overall role. The author of the letter was not identified, but the probabilities are that it was Corfield or another of the senior security officers of Argyle. It is another demonstration of the support given by Argyle to Lynette Crimmins for her co-operation and, in the circumstances, it reinforces the inference that, independently of the police investigation, Argyle was making its own approach to Lynette Crimmins in search of a breakthrough in the case (see Exhibit 37, 10TB 2348).

291 As the learned sentencing Judge, Blaxell DCJ, said, the evidence against Barry Crimmins and Lynette Crimmins consisted almost entirely of their own respective confessional statements to the police, in which they admitted and explained their roles in the plan, with Roddan, to steal diamonds from the Argyle mine. The Crown submitted, and the learned Judge accepted, that but for their confessions, it is unlikely that they would have been detected or that other serious crimes would have been disclosed. The latter is plainly an allusion to charges of conspiracy to pervert the course of justice then still pending against Roddan and Noye respectively, together with charges of insurance fraud also pending against Roddan and Noye.

292 The Crimmins' case, to a significant extent based on the allegations of Lynette Crimmins, was advanced by the Crown, and accepted by the District Court, as involving parallel corrupt conduct by Roddan and Noye in perverting the police investigation into the Argyle diamond theft inquiry and corruptly recommending the termination of the investigation.

293 It also proceeded on the footing that Sergeant Noye had attended at the scene of the break-in at Lynette Crimmins' apartment in Highgate and, together with her, had concocted a false and an inflated statement of losses to be submitted to the insurance company. The submissions to the court were that the break-in had been staged by Roddan at a time when he knew Lynette Crimmins was away from her home, and that the only items stolen were some photographs, a camera and a single diamond ring, all of which had the potential to provide incriminating evidence against Roddan. The false and inflated claim for losses was said to be a ploy to obtain money for Roddan, but that $1000 of the proceeds were paid to Noye and used by him to finance a trip to Victoria in order to see Barry Crimmins so as to assure him that the Argyle diamond theft investigation was being terminated. None of those particular propositions was contested by evidence. In relation to the role of Noye, the principal source of the allegations can only have come from Lynette Crimmins. The additional piece of evidence, that, to Barry Crimmins' mind, Noye behaved suspiciously when he visited Crimmins in Shepparton in Victoria in September 1992 was, in this context, minor (see Exhibit 26, 7TB 1720, 1723).

294 At the time the two Crimmins were sentenced, on 8 and 16 February 1994, the charges of conspiracy to pervert the course of justice and insurance fraud were still pending against Noye and Roddan. The first indictment against them alleging those offences was not presented until December 1994 (Exhibit 8). None of the allegations, or even the assumptions, against Noye which were made, or acted upon at the sentencing of the Crimmins, constituted admissible evidence, let alone findings, against Noye. Having regard to the nature of the present litigation, it is necessary both to recognise and to emphasise that. This is not to diminish the significance of those allegations, because that was the belief of the police and the prosecution at that time. However, this is no more than to realise that these allegations and assumptions were about the truth of the charges laid against Noye, which were subsequently withdrawn by the nolle prosequi and, in respect of which he now sues by these present actions.

295 The corresponding charges against Roddan of conspiracies to steal, however, proceeded separately. He was tried on indictment in the District Court of Western Australia in April and May 1996, having pleaded not guilty. He was convicted and later sentenced by Healy DCJ in May 1996. It is necessary now to examine the details of the charges and the outcomes concerning those three persons.

296 On 17 May 1996, by verdicts of the jury (in one case by majority and in two cases unanimously), Lindsay Gordon Roddan was convicted of one count of conspiracy with Barry Crimmins and Lynette Crimmins to steal and two counts of conspiracy with Lynette Crimmins to steal (Exhibit 169). He was sentenced by Healy DCJ on 21 May 1996 (see Exhibit 169).

297 Count 1 of the indictment, relating to the conspiracy with Barry Crimmins and Lynette Crimmins to steal diamonds from Argyle, was alleged to have commenced on 15 March 1988 and to have continued until about November 1990. It was alleged, and the learned trial Judge concluded that the jury must have found, that during that period Barry Crimmins stole diamonds from Argyle and supplied them to Roddan and, on another occasion, supplied such stolen diamonds to Lynette Crimmins who in turn supplied them to Roddan. It was never established exactly how many diamonds had been stolen, as part of the conspiracy, but the learned trial Judge proceeded on the basis that the evidence established that something in the order of 150 to 200 diamonds were stolen as well as a further seven or eight larger and more valuable pink diamonds. His Honour referred to evidence which established that something in the order of $2,500,000 had been shown to pass through various accounts held by or on behalf of Roddan, being payments from Switzerland, some of which must have been for these stolen diamonds. It was impossible to conclude exactly how much of the $2,500,000 received had been paid for stolen diamonds because Roddan had been dealing in other diamonds, apparently legitimately. However, the learned trial Judge concluded that a not inconsiderable part of that money had been received for the stolen diamonds and that most of it went to the benefit of Roddan.

298 The second and third counts in the indictment of conspiracy to steal involved a conspiracy between Roddan and Lynette Crimmins. The second such conspiracy was said to date from 1 January 1990 and the third from 1 January 1991. Each involved attempts by Roddan and Lynette Crimmins to procure third persons to become involved in the conspiracy and, in one case, to seek employment at the Argyle mine in order to steal diamonds. Those overtures to the third persons were rejected and, therefore, neither of those two conspiracies was put into operation or resulted in diamonds actually being stolen.

299 For these offences, Roddan was sentenced to 3 years' imprisonment on the first count (after credit had been given for 3 years spent in custody prior to his conviction) and 2 years' imprisonment on each of counts 2 and 3. The sentences on counts 2 and 3 were ordered to be served concurrently with the sentence on count 1 and Roddan was made eligible for parole. The effect, therefore, was that, subject to earlier release on parole, he was required to serve 3 years' imprisonment.

300 Roddan's trial had been lengthy - lasting about six weeks (21 sitting days) and involving some 40 witnesses. These included Corfield of Argyle; Sergeants Thoy and Gwilliam; Barry Crimmins and Lynette Crimmins; and, many others. In the course of the trial it seems that, on a number of occasions, reference was made to alleged police corruption. The evidence certainly was that Roddan had boasted to others that he had the benefit of access to corrupt police officers and apparently sought to exploit the beliefs and advantages which those boasts produced. However, the prosecution did not conduct the trial on the basis that any actual police corruption was involved and no finding of the jury, nor any of the observations of the learned sentencing Judge, could be taken to suggest that this had been established. Even if it had been established, it would not be evidence against Noye or for the other parties in these current proceedings.

301 The Roddan trial also involved numerous references being made to the Newton diamonds and involved some evidence that those gems, or a large proportion of them, came from the Argyle mine. However, the charges upon which Roddan was convicted did not involve any assertion that the Newton diamonds, or any of them, were the property of Argyle. After Roddan's conviction, Argyle appeared by counsel and made application to the trial Judge for orders to be made under s 25 of the Diamond (Ashton Joint Venture Agreement) Act 1981 (as it then was), or alternatively, s 717 of the Criminal Code, (as it then was), declaring that specified diamonds in the Newton batch (which had been the subject of exhibits during the course of the trial) should be declared to have been stolen from Argyle and thus be returned to the owner. After hearing submissions on this application and adjourning so that further submissions could be made after a thorough review of the evidence, the learned sentencing Judge rejected that application on the basis that he was not satisfied that Roddan had actually been convicted of stealing those diamonds, or, for that matter, that the evidence had established beyond reasonable doubt that those diamonds, or any of them, actually came from the Argyle mine. His Honour pointed out that the expert evidence available suggested that at least two of the diamonds did not come from Argyle and that most of the others had been acid cleaned and that it was not, therefore, possible to establish satisfactorily that they had come from the Argyle mine. In those proceedings it was not alleged, and it was not found, that Horovitz in Geneva was a party to any of the conspiracies.

302 In the transcript of the sentencing hearing of Roddan (Exhibit 169, 1885), it is recorded that the Crown prosecutor submitted that the Crown case at the trial had been that Noye acted in a corrupt way with Roddan, notwithstanding that earlier (Exhibit 169, 1880) counsel had submitted that, with regard to allegations of police corruption, it was not necessary for the court to find whether or not Roddan's allegations were true. As the learned sentencing Judge quite properly, and indeed necessarily and inevitably, stated, it was not his task to make any findings about whether or not any of the allegations of police corruption were true, I do not see how anything in Roddan's conviction or sentence could be treated as having that effect. Even if it did, as I have already said, that would not be evidence for or against Noye or any of the other parties to these proceedings.

303 What is clear is that the crucial evidence of the actual theft of diamonds from Argyle, and their delivery to Roddan as part of an illegal agreement to steal and distribute the gems, came from Barry Crimmins and Lynette Crimmins themselves. It was not suggested in the original investigation against Noye, or indeed in the present litigation, that any such evidence from Barry Crimmins or Lynette Crimmins was in existence or was known by Noye before he submitted his final report (Exhibit 3) in September 1992. The first of the allegations made by Lynette Crimmins was made on 19 January 1993 and the confession of Barry Crimmins did not come until 29 August 1993. Noye was not involved in the investigation at these times and, although he reported and protested about the allegations of Lynette Crimmins of 19 January 1993, he was not responsible for the continuation of the investigation from then on and was himself, effectively, then under scrutiny by the IAU in the investigation led by Inspector Robbins.

304 The evidence also establishes (Exhibit 168) that, after another trial running from 13 -15 November 2000, Roddan was convicted in the District Court of Western Australia of one charge of forgery, and one charge of uttering a false document, both occurring in or about mid May 1990. (At this trial, he was found not guilty of a third charge of fraud by false pretences.) Following these two convictions, Roddan was fined $2500 for each.

305 During the sentencing of Roddan it emerged, and the prosecution conceded, that the learned trial Judge sentencing Barry Crimmins had proceeded on a mistaken view about the maximum penalty applicable for the offence of conspiracy to steal diamonds as a servant. His Honour, without objection from either counsel, observed that the maximum penalty fixed by law was 10 years' imprisonment. At the time of the sentencing that was the penalty but, when these offences had been committed, between 1987 and 1989, the maximum penalty was only 7 years (it was later increased by amendment). The sentence which should be imposed on an offender should be the sentence prescribed by law at the date of the offence, so the shorter period applied. No point had been taken about this by Barry Crimmins at that time or subsequently, but it is perhaps necessary to note this.

306 During the application by counsel for Argyle before the trial Judge for orders and declarations for the return of the Newton diamonds following Roddan's conviction and sentence, Healy DCJ, when refusing to make that order because of the absence of proof that the Newman diamonds had, in fact, been stolen from Argyle, referred to the evidence of Mr Taylor (Exhibit 169, 1914 - 1915) that the Newton diamonds were all, or mostly all, post-acid treated gems, and that it was not possible to conclude with certainty that the diamonds had come from Argyle. This is one example of judicial recognition that the scientific evidence relating to the origin of the Newton diamonds was inconclusive - a point which Noye had included in his September 1992 report (Exhibit 3).

307 The sentencing submissions relating to Barry Crimmins and Lynette Crimmins had proceeded on the assumption that the Newton diamonds had been stolen from Argyle and were part of the stolen diamonds which had been "recovered" by Argyle. This proposition does not appear to have been in issue or contested in any way during the sentencing hearings. It was put to the learned sentencing Judge that the value of all the diamonds stolen was large, but unquantifiable, the police estimate being as much as $2,000,000, although that figure might include proceeds from the sale of diamonds by Roddan which had been legitimately obtained. Against that the Crown submitted that diamonds to the value of approximately $150,000 had been recovered which included the Newton diamonds, other diamonds found in Roddan's possession and further diamonds from various other sources.

308 The evidence of Barry Crimmins relating to his role in the stealing of diamonds from Argyle came from his own statements. According to him, he had been approached by Roddan in about 1987. In 1988 when he was on duty at Argyle, a jar containing something in the order of 36 to 38 diamonds had been returned from the Perth laboratories of Argyle to the mine for further acid cleaning because the initial treatment at the mine had not eradicated all foreign deposits on the gems. It was Barry Crimmins' responsibility to return these to the sorting house. Instead, he put the jar of diamonds in his locker where it remained for several months - he said he had forgotten about them but Blaxell DCJ rejected that explanation and concluded that he had kept them aside in order to see if they were missed. At any rate, after further approaches from Roddan, Barry Crimmins brought those diamonds to Perth concealed in a film canister in three separate batches over the passage of some months. He passed those diamonds on to Roddan and received payment of, he said, about $8000 for them all.

309 Once this supply of the diamonds was exhausted, Roddan continued to press Barry Crimmins for further diamonds and threatened to expose him to the Argyle authorities if he would not co-operate. Barry Crimmins had access to the sorting and treatment plant. At one stage of that process there were spiral elevators which frequently overflowed and spilled some of the ore, including diamonds, onto the floor and surrounding metal supports. Barry Crimmins, among others, was required to sweep up this spillage and return any diamonds found to the processing stream. In doing this, however, he was able to secrete quantities of the diamonds and to smuggle them out of the mine. These were smaller and poorer quality gems and had not been treated by the acid process. According to Barry Crimmins, gems from this source accounted for something in the order of 95 per cent of all the diamonds which he provided to Roddan. Various estimates were made about the number of diamonds supplied, but all the conclusions were that it was not possible to determine the quantity with any accuracy. The various estimates were in and around 150 to 250 such stones.

310 When the Argyle authorities, that is Corfield and his team, became suspicious about suspect diamonds turning up in Europe and in Perth, Barry Crimmins ceased all meetings and contacts with Roddan, whether for the delivery of diamonds or otherwise. From then on, the diamonds which Barry Crimmins brought from the mine were given to Lynette Crimmins and she delivered them to Roddan, or at his direction, in return for payment.

311 By about mid 1989 Barry Crimmins refused to continue to be involved in the stealing of diamonds anymore and, in order to provide a pretext to Roddan that he no longer had access to any opportunity to take gems, he sought a change in his position at Argyle and was appointed superintendent of security. This meant that he spent far less time in the diamond treatment areas or the secure areas of the mine where there was access to gems.

312 After Barry Crimmins had ended his role in the supply of stolen diamonds, Lynette Crimmins, at Roddan's instance, approached, unsuccessfully, two other persons, one already working at the Argyle mine site and another whom she suggested should apply for a position there, to help steal diamonds from the mine. Both of those persons refused to become involved. However, the conduct of Lynette Crimmins in agreeing with Roddan to try and enlist others to steal diamonds constituted further conspiracies and were the subject of the second and third counts of conspiracy against her. Similar counts were laid in the charges against Roddan at his subsequent trial and, as already described, he was also convicted of those further conspiracies.

The committal proceedings against Roddan and Noye

313 The committal proceedings in relation to the charges against Noye and Roddan were heard in the Court of Petty Sessions at Perth from April until September 1994. Noye was represented by counsel, but did not give or adduce any evidence. Roddan appeared in person. The learned Magistrate gave reasons for decision on 30 September 1994 and committed both defendants on some, but not all, of the charges (Exhibit 152, 11TB 2608 - 2664).

314 Noye's committal for trial on the charges laid against him, after a formal hearing before an independent Magistrate, does not prevent him maintaining his present action for malicious prosecution or for related causes of action. The fact that a person was committed for trial, or even that an indictment was presented against him, is no bar to the maintenance of such causes of action if, as long as the proceedings are eventually resolved in favour of the claimant, and the other elements of cause of action are proved. Nevertheless, while an order for committal could quite readily result from a prosecution which had been instituted maliciously, if the malice had not been recognised and detected at that stage, the scrutiny which the preliminary hearing involved has, in my view, some potential significance as to the question of whether or not there was reasonable and probable cause for the laying of the prosecution. Again, the result of the initial committal hearing and views expressed by the presiding Magistrate, will not be determinative of this matter because, as explained earlier, the requirements of reasonable and probable cause involve both objective and subjective elements about the sufficiency and cogency of the evidence relied upon for the institution of proceedings. However, the scrutiny at the committal hearing and, for that matter, by a Crown prosecutor when any indictment is laid, should be taken into account at least in relation to the objective component of the requirement for reasonable and probable cause for the institution of the proceedings. It is with this in view that the following scrutiny of the committal hearing is undertaken.

315 The committal proceedings lasted some 57 or 58 days over hearings during April and September 1994. They were in respect of the complaints laid by Inspector Robbins on 14 February 1994 - that is, the second set of complaints (Exhibit 35).

316 The committing Magistrate had clear evidence before him of an association, stretching back several years, between Roddan and Barry Crimmins. There was also evidence from Barry Crimmins that he, Crimmins, had stolen diamonds from the Argyle mine, both from the glass jar and from debris spilt from the spiral elevators, and that he delivered those stolen diamonds to Roddan in Perth.

317 There was extensive evidence of Roddan's possession of diamonds; of attempts to sell diamonds to various persons in Perth; of large quantities of money received by various solicitors from Horovitz in Geneva on behalf of Roddan; and, of Roddan boasting to Devenish of his ability to get diamonds by outwitting the security precautions at the Argyle mine. The Magistrate accepted evidence from various scientific experts associated with Argyle that many of the diamonds found in Roddan's possession, or under his control, were from the Argyle mine, some of which were pre-acid stones.

318 The evidence against Noye comprised his report to his superior officers of September 1992 recommending the termination of the diamond theft inquiry and reporting the absence of any evidence to warrant charging Barry Crimmins or Roddan; the evidence of the owner of the Gioia Café in Northbridge of a number of meetings at the café between Noye, Roddan and Lynette Crimmins; the evidence of Lynette Crimmins that Roddan boasted that he was paying a large bribe to Noye; the conversation which Lynette Crimmins herself had with Noye which she suggested involved him saying words to the effect that he expected to have a share of the diamonds; and, the evidence of Noye's visit to Barry Crimmins in Shepparton in Victoria in November 1992, which had not been reported upon to the senior police officers and which Barry Crimmins took to be suspicious and inconsistent with the conscientious performance by a police officer of the investigation of suspected crime. There was also evidence of Sergeant Gwilliam that Noye had supplied to Roddan documents relating to the scientific analysis of the particles adhering to diamonds, prepared by Argyle experts, and of the later discovery, in the possession of Roddan, of the confidential AFP D'Anna report which Gwilliam had earlier seen in Noye's possession.

319 In relation to the insurance fraud charges, there was evidence of Lynette Crimmins that Noye had prepared a false list of property alleged to have been stolen; had arranged for her to submit this to the SGIO; and, had received $1000 cash from the proceeds, used to allow him to travel to Shepparton to see Barry Crimmins, as already mentioned.

320 Except in relation to the charge of unlawfully disclosing the D'Anna document to Roddan, counsel for Noye conceded before the examining Magistrate that there was sufficient evidence to put Noye on trial for the other alleged offences, that is, the alleged conspiracy to pervert the course of justice, the charge of unlawfully disclosing confidential documents relating to the soil analysis of the Newton diamonds and the charges relating to the alleged insurance fraud. He submitted, however, that there was insufficient evidence to connect Noye to the supply of the D'Anna report to Roddan and that there should be no committal on that charge. That submission was rejected by the learned Magistrate and Noye was committed for trial on all charges.

321 The evidence against Noye was both direct and circumstantial, each tending to reinforce the other. The direct evidence of implication in the alleged conspiracy to defeat the course of justice and in the insurance fraud came from Lynette Crimmins and was no doubt a very influential component of the case against him. So of course was the evidence from Sergeant Gwilliam about the unlawful disclosure of the soil analysis reports and the D'Anna report.

322 In relation to the charges against Roddan, the learned Magistrate held, not surprisingly, that there was ample evidence to support charges that Roddan had been involved with Barry and Lynette Crimmins in conspiracies to steal diamonds from the Argyle mine. He also found, essentially for the same reasons as described in the case of Noye, that there was sufficient evidence for him to be committed for trial on the charge of conspiring with Noye to defeat the course of justice by attempting to stifle the police investigation. However, in relation to the insurance fraud charges, his Worship held that there was insufficient evidence to link Roddan to the alleged frauds. His Worship was not satisfied that there was sufficient evidence to warrant Roddan being put on trial for staging the break-in at Lynette Crimmins' Highgate apartment (which facilitated the subsequent false insurance claim by Lynette Crimmins and Noye together). Consequently, Roddan was discharged from the three complaints alleging that he was a party to fraudulent insurance claims against the SGIO.

323 In view of Noye's counsel's concessions, that there was sufficient evidence for his client to be put on trial on all, but the D'Anna charges, the Magistrate was not required to analyse the evidence against Noye in any detail. Nevertheless, his Honour still had to be satisfied that there was a sufficient case presented to warrant the committal orders. As already stated, the evidence of the two Crimmins, but in particular of Lynette Crimmins, would seem to have been crucial in that regard.

324 Although Noye was committed on the three complaints of alleged involvement in insurance fraud by the examining Magistrate at the end of the committal, those charges did eventually disappear. The first indictment, of 5 December 1994 (Exhibit 8), includes, as counts 4, 5 and 6, allegations of fraudulent representation in relation to the insurance claims, but against Noye alone. The second indictment, of 1 October 1997 (Exhibit 9), includes, as count 3, a charge of a fraudulent representation, but by Noye alone. The third and final indictment, of 2 June 1998 (Exhibit 10), was confined to the single allegation of conspiracy between Roddan and Noye to pervert the course of justice arising out of the police investigation into the Argyle thefts.

325 It follows from this sequence that some time between October 1997 and June 1998, the DPP decided that the insurance fraud charges would not, or should not, be pursued against Noye. Given the overall conduct of Lynette Crimmins, it would be very surprising if the reason for doing so did not include, to a significant extent, an appreciation that the uncorroborated allegations of Lynette Crimmins stood very little chance of being accepted by a jury in the face of consistent denials of any involvement in such an offence by Noye from the very beginning.

326 By 19 January 1993 the relationship between Lynette Crimmins and Roddan was extremely bad. She claims that he had assaulted her repeatedly and there were other grievances between the two. That night, after drinking heavily, she went to Roddan's home twice and created a commotion, so much so that the police were called on the second occasion. Lynette Crimmins was behaving very badly and hysterically. After the first visit, she demanded that Noye come and assist her at her friend's house. Somewhat injudiciously, he did so. He attempted to calm her down, drove her to her home, attempted to placate her and suggested that she should sleep. He returned to his own home.

327 Later, in the early hours of the following morning, there was the second commotion at the Roddan home. Lynette Crimmins, perhaps even more intoxicated, had gone back to remonstrate with Roddan. There was an altercation and the police were called. They led her from the house and told her to move on. She became very abusive and began swearing at the police in vile terms. She was warned against persisting in that conduct and threatened with arrest. Nevertheless, she deliberately directed another string of obscenities at the police officers. They thereupon arrested her and took her to the Warwick police station where she was lodged in a cell.

328 There, she continued to make a great fuss, created scene after scene, and began shouting that the police were corrupt, that she knew of serious corruption at high levels in the Police Force and that she was under the protection of Detective Sergeant Noye, who should be contacted and would immediately come to her aid. The local uniformed station sergeant was rather taken aback at this conduct and he did indeed telephone Sergeant Noye in the morning, explaining her behaviour and asking whether Noye had any special instructions or requests concerning his prisoner. Not unreasonably, Noye was quite exasperated and properly told the sergeant that there was nothing that he wanted done; that Lynette Crimmins was not entitled to any special treatment; and, that he, Noye, was not prepared to come and see her or speak to her. When told of this, Lynette Crimmins went into an even worse rage and made a whole series of allegations of corruption against Noye, as well as others, including the allegation that Noye and her husband were involved in stealing from the Argyle mine. She was released on bail the next morning, having been charged with a series of minor offences relating to disorderly conduct.

329 In light of the allegations of police corruption, the station sergeant, as he was obliged to do, made a record of the allegations of Lynette Crimmins and reported them to his superiors and, directly, to the Police Internal Affairs Unit. Noye was told of this the next day. He immediately went to his superiors to report that Crimmins had made these allegations and that he denied them emphatically. He was furious and demanded that the Argyle diamond theft investigation should be reopened and that he should be allowed to pursue these allegations.

330 These developments prompted concern at the highest levels of the Police Force. But there is further background which is important. Gwilliam was assigned to assist Noye in the second phase of the Argyle diamond investigation. However, Gwilliam and Noye clashed and Gwilliam simply withdrew from the inquiry. Quite how the relationship between these two officers broke down is not entirely clear, but break down it surely did. Gwilliam was not prepared to countenance any possibility that the Newton stones were other than the stolen Argyle gems - as Corfield always strenuously maintained. Gwilliam evidently thought that Noye's equivocation about this and his readiness to accept that the stones could have been sourced from Antwerp, or elsewhere in Western Australia, such as the WADT or, for that matter, Freeport diamonds, was completely untenable and that Noye was being stubborn, obtuse or worse in giving credit to any such possibility. Gwilliam was also convinced that Roddan was guilty of stealing the diamonds and wished to apply pressure to Roddan in the hope of securing a confession. He saw Noye's readiness to meet Roddan frequently and informally as seriously compromising and came to the view that there was a corrupt relationship developing, or in existence, between Noye and Roddan.

331 As earlier mentioned, Gwilliam was very ready to conclude that there was corruption involved in the investigation of the diamond thefts. His experience with Noye simply reinforced the views which he had formed when working with Sergeant Thoy on the first inquiry which was terminated, against their wishes, by orders from senior officers in December 1990. Having withdrawn from the second inquiry, and having refused in any way to co-operate with Noye, Gwilliam began to spread rumours in police circles of further corruption in the Argyle diamond investigation.

332 There is evidence that Gwilliam and Noye met by chance in the police canteen. According to Noye, Gwilliam alleged that Noye and a senior officer, at a superintendent level, were being paid bribes for writing-off the Argyle inquiry. Noye vehemently denied this allegation and went to his superiors to report it and to demand that it be investigated and that Sergeant Gwilliam be disciplined. An investigation of sorts was conducted and Gwilliam firmly denied ever having made such an accusation to Noye or any other accusation against a senior superintendent. There the matter was left, but it is hardly too much to say that by then the relationship between Gwilliam and Noye was poisonous.

333 Decisions were made at senior level within the Police Force by Assistant Commissioner (Crime) Ayton, Deputy Commissioner Zanetti and others, no doubt with the Commissioner's approval, to reopen the investigation into the alleged theft of diamonds from the Argyle mine and, in addition, to investigate the allegations of police corruption against Noye and others. A new task force, the third, was then established to reopen the investigations into the allegations of theft of diamonds from Argyle. This was headed by Inspector Lavender. Sergeant Gwilliam was recalled to the inquiry to assist Inspector Lavender and other officers were made available to assist as well. While there were reasons to involve Gwilliam in this role, because of his past experience in the investigation, there were also other considerations which made his choice very questionable. Gwilliam was plainly committed to the Argyle/Corfield line that there had been stealing from the mine; that the Newton diamonds were illicitly sourced from Argyle; and, that Roddan was the principal offender. He was also very hostile towards Noye and, by his past conduct, was known to be inclined to believe that there had been extensive corruption in the upper levels of the Police Force in relation to this investigation over a long period of time.

334 As matters were later to prove, Gwilliam became the dominant force in this third investigation and pursued it single-mindedly and without regard to the sensitivities of, or the need to co-operate with, the parallel inquiry which was being conducted by the IAU. In the process, and at critical stages of the investigation, there was a great deal of information leaked from the CIB to the press, suggesting that there had been police corruption in the Argyle diamond investigation. This led to a major campaign by the press, and in particular The Sunday Times, about the need to investigate and root out corruption in the upper levels of the Police Force. This reached such a dimension that allegations of police corruption became a matter of major concern for the Police Force generally, and specifically for senior officers responsible for the welfare of the Police Force. Consequently, the need to demonstrate that the Police Force was dealing rigorously and uncompromisingly with suggested corruption in its own ranks became an important end in itself.

335 During this period, various senior officers spoke to Gwilliam from time to time in an effort to discourage him from making unsubstantiated allegations of internal police corruption. They emphasised that an anti-corruption investigation was proceeding under competent independent senior officers and that this should be allowed to take its course. Gwilliam was not deterred. He regarded these approaches as unjustified attempts to interfere with his own investigation and characteristic of an internal atmosphere that was soft on corruption. This only spurred him to further efforts. The leaks to the press became more frequent and an atmosphere of crisis within the higher levels of the Police Force developed.

336 This third phase of the Argyle diamond theft investigation, conducted by Inspector Lavender, Sergeant Gwilliam and their team, was operated out of offices at Bennett Street, Perth, which had been supplied, or financed, at the cost of Argyle and was equipped with computers and other resources which the mining company also provided. Also, during this period, Corfield, Burton and other senior personnel from Argyle had frequent contact with Gwilliam and the investigating team. There is certainly nothing improper about co-operation between a large company such as Argyle and the Police Force in relation to such an important investigation. However, I am satisfied that the relationship was so close that the investigators were, inevitably, heavily influenced, about the sources of inquiry, suspects and the significance of various items of potential evidence, by the views of the security officers at Argyle.

337 Nor was it any secret that the security officers at Argyle, and the senior Argyle management, were most dissatisfied with the overall performance of the Police Force because of what they regarded as an ineffective investigation into a serious crime which had, in practical terms, gone nowhere since it was initiated in 1989 and which had, in effect, been discontinued twice because of decisions made within the Police Force. Decisions that the mining company regarded as quite inexplicable and unjustified. The effect of this unfortunate sequence of events was that Sergeant Gwilliam, by that stage, had little respect for the senior officers who had had responsibility for conducting or directing earlier investigations into the alleged diamond theft. He suspected that somewhere in the chain of command corruption was compromising the inquiry. He was therefore not disposed to take counsel or direction from anyone but was determined to conduct the investigation in his own way.

338 There were repeated acts of insubordination by Gwilliam in relation to his conduct of the inquiry. Former Assistant Commissioner (Crime) Ayton said in evidence in these proceedings that the Police Force had not handled this part of the investigation at all well (t/s 1844). But Gwilliam simply could not be resisted. Any attempt to do so resulted in a renewed spate of publicity about the supposed existence of corruption within high levels of the Police Force and the need for a public inquiry. Ostensibly, Gwilliam was subject to the direction and control of Inspector Lavender, but he was not the kind of man to submit to authority or restraint and, despite some attempts, Inspector Lavender was not able to restrain him.

339 The other investigation which was instituted after the events of January 1993 was to establish a special investigating unit within the IAU to inquire into the allegations of corrupt conduct against Noye and others. This was conducted under the direction of Superintendent Watson of the IAU. Inspector Robbins was put in charge of the investigation. He had a number of assistants, including Detective Sergeant Tulloch, but he took close control and responsibility of this investigation and conducted it very thoroughly and with discretion.

340 Lynette Crimmins was interviewed and re-interviewed by members of the IAU team, and also much later by special investigators from the AFP who had been seconded from an external force to assist in an internal police review as an exercise in objectivity. Roddan was interviewed and Noye was repeatedly interviewed. Inspector Robbins made the trip to Victoria and visited Barry Crimmins in Shepparton in April 1993, as already described, but no positive results emerged.

341 Then, in about August 1993, Barry Crimmins contacted Gwilliam and made the arrangements to meet with him at Kununurra. Gwilliam informed Robbins and the two flew to Kununurra. They met Barry Crimmins at the police station there on 29 August 1993. Barry Crimmins then made a lengthy statement confessing to his personal involvement in stealing diamonds from the Argyle mine, supplying them to Roddan, and later supplying them to Lynette Crimmins who, in turn, supplied them to Roddan. He described how Roddan had boasted to Lynette Crimmins that he was paying off Noye and how the investigation was going to be written-off, but he had no direct evidence to incriminate Noye. The closest his statement came to anything in that regard was Barry Crimmins' attitude of suspicion at what he took to be Noye's incongruous behaviour on the latter's visit to Shepparton in September 1992.

342 It is clear that terms had been negotiated between the police and Barry Crimmins for him to receive favourable treatment if he came to Western Australia and made a confession. For example, although he had confessed to this serious crime, he was not immediately arrested. Instead, he was allowed to drive to Perth and attend his daughter's 21st birthday (the reason why he had come to the State). He was charged on summons rather than being arrested and, in return, he gave assurances of co-operation with the police to provide evidence against Roddan, Lynette Crimmins and, to the extent that he could, against Noye. It is highly probable that Gwilliam was fully aware that Barry Crimmins would co-operate and confess at this time and had known this for some time. His move to arrest Roddan suddenly, on 10 August 1993, before Crimmins' confession at Kununurra was probably based on this anticipation - because without Barry Crimmins' evidence, the case against Roddan was still weak. The crucial impact of the Crimmins' confession and the move to arrest Roddan before the confession strongly suggests that before then Gwilliam had concluded an understanding with Barry Crimmins.

343 This confession was the most significant breakthrough. It confirmed that there had actually been stealing from the Argyle mine, it identified the thief and explained how the diamonds had been secreted and taken from the mine site. That was of immense importance to Corfield and Argyle. It also meant that an offender had been detected, who would plead guilty, and so, at last, vindicate the efforts of the Police Force in this long-running inquiry. It was also evidence which was likely to lead to the conviction of Roddan because Barry Crimmins was a person of far greater credibility than the wayward Lynette Crimmins. There can be no doubt that, from the point of view of Argyle, in the interests of the Police Force and in the public interest as a whole, a measure of co-operation and encouragement for Barry Crimmins was a proper approach for the investigating police to take.

344 Meanwhile, Inspector Robbins was still conducting his investigations into the alleged police corruption. The disclosures of Barry Crimmins were very important. They cast an entirely new light on the recommendations which Sergeant Noye had made in his September 1992 report. That is, that there was no evidence to establish any theft of diamonds from Argyle, or which would justify a charge against Barry Crimmins, Roddan or others, and that he was satisfied that no such evidence would ever emerge. This showed Noye to have been badly mistaken in his recommendations - or worse. Inspector Robbins and his team needed time to pursue these new developments by further inquiries and expected Gwilliam and his team to liaise with them about further steps in the investigation, particularly any concerning Roddan. However, that did not happen.

345 Without notice to Inspector Robbins or his team, Gwilliam had conducted a raid on Roddan's property at Gidgegannup on 10 August 1993. They searched the premises, took large quantities of Roddan's records, arrested Roddan and charged him with offences relating to stealing diamonds from Argyle. This was accompanied by media releases and great press attention. Although the Robbins' inquiry was still continuing, there were leaks from the Police Force to the press of an imminent expected development; namely, the arrest and charging of a senior police officer or officers with corruption in relation to the Argyle diamond affair. No such decision had yet been taken by Inspector Robbins or his team, let alone by the senior police hierarchy who would need to be consulted about such a far-reaching action. Time wore on and there were more leaks from the Police Force to the press along the same lines. The overwhelming probabilities are that these leaks were being fed by Gwilliam and were part of a strategy intended to force the authorities to take action against Noye.

346 With all these developments, Noye's position was obviously troubled. He was again interviewed by the IAU officers. He denied any corrupt activity. He maintained that the recommendations which he had made in Exhibit 3 - his report of September 1992 - were honest and justified.

347 So great was the public concern and the extent of press criticism of the Police Force, suggesting internal corruption, that the police officers handling the inquiries sought, as they were entitled to do, advice and assistance from the Office of the DPP. Assistance and advice was sought in relation to the charges against Barry Crimmins and Lynette Crimmins. Advice was also sought in relation to charges against Roddan. Thirdly, advice was sought in relation to the investigation dealing with corrupt police conduct and the significance of evidence which tended to compromise Noye. Those seeking advice included Sergeant Gwilliam and Inspector Robbins. However, Gwilliam had a fixed view that Noye was corrupt and did not hesitate to advance that at every opportunity. Robbins was more balanced and circumspect, but the situation in which advice was sought and given by officers of the DPP was one where all these inquiries were being dealt with simultaneously and where there were conflicting opinions about the significance of Noye's role in the affair.

348 That Sergeant Gwilliam should have been permitted to have a voice in the communications with the DPP, and been allowed to press so vehemently his view of the corrupt conduct of Noye, was singularly inappropriate. If ever there was an occasion where calm, detached analysis was needed and when balanced and objective judgments were called for it was at this point. For the DPP to be asked to give advice would, in effect, require his staff to choose between the vehement approach of Gwilliam, and the more considered approach of Robbins. This was fraught with the risk of serious error. Of course, by now, Gwilliam was almost unstoppable. Despite all the discouragements of the past, and efforts to restrain him, he and Thoy, had effectively been vindicated. There had been a major systematic stealing operation going on at Argyle; Roddan was the principal beneficiary of the stolen diamonds; the decisions to stop the investigation by senior police officers in the past were shown to have been unjustified; and, all those who had criticised Gwilliam for his impetuosity must have now surely been embarrassed. Noye's recommendations had been shown to be embarrassingly wrong. The situation was very grave and further action was called for. The urge for action was hard to resist.

349 At this point it is necessary to go back in time and to examine closely the materials available to Inspector Robbins and his team and the processes of reasoning which Inspector Robbins followed in ultimately deciding to lay the complaints against Noye in November 1993. A considerable quantity of material had been collected and it is necessary to identify it.

350 Exhibit 111 is a transcript of a tape-recorded interview between Inspector Robbins, Superintendent Watson of the IAU and Sergeant Gwilliam which occurred at a meeting on 3 March 1993 at the IAU. Watson and Robbins had, by that stage, conducted some initial enquiries into the allegations made by Lynette Crimmins against Noye and had interviewed Noye about the matter. They turned to Gwilliam seeking his comments on the allegations and about the conduct of the diamond theft inquiry in relation to its early stages.

351 This record (Exhibit 111) is lengthy (46 pages) and discussive. Nevertheless, a number of distinct points of importance emerge from it. In the first place, Gwilliam and Thoy harboured very deep suspicions and great resentment against the officers who had appointed them to conduct the initial inquiry. In particular, they resented how, in their opinion, those senior officers restricted the scope of the inquiry; suggested that it should be written-off; refused to authorise requests for further resources or activities; and, criticised Gwilliam and Thoy for the conduct of the inquiry. Much of this criticism was directed towards Superintendent Dalton, then a senior officer at the CIB Executive. It is evident that there were a number of very serious and acrimonious arguments between Gwilliam and Thoy, on the one hand, and Dalton, on the other, and that Gwilliam did not trust Dalton or other senior commanders in the CIB.

352 Towards the end of Exhibit 111, Gwilliam discusses a number of earlier inquiries and investigations with the IAU officers. He disclosed that there had been deep hostility and resentment between Gwilliam and Dalton going back to at least 1983 and that from then on Gwilliam believed that Dalton was corrupt, manipulating and unreliable. It was also evident that Gwilliam believed, rightly or wrongly, that there was serious corruption in the upper echelons of the CIB and that at least one other superintendent was openly suspected of taking bribes. Gwilliam's language and vehemence were both very strong. His criticisms were not particularly well detailed or supported, but the level of his dissatisfaction and animosity towards Dalton and other senior officers was unmistakable.

353 Gwilliam took the view that there was (in March 1993) sufficient circumstantial evidence available to justify Roddan being charged with stealing diamonds or, perhaps preferably, being a party to a conspiracy with Barry Crimmins to steal diamonds from Argyle. He recognised that there were some shortcomings in the scientific proof that the Newton diamonds came from Argyle. However, he was disposed to brush that aside because, in his view, there were at least six or seven witnesses who could give evidence of Roddan dealing in diamonds in suspicious circumstances; boasting of having stolen diamonds from Argyle or beating the security at the mine; and, of having more diamonds in his possession than could be accounted for by the explanation that certain batches of diamonds had been sent to him on consignment from Horovitz in Geneva. Gwilliam named Raelene Shaw, the jeweller Charles Devenish, and the miner, Robert Gardner, as some of those who would give evidence of Roddan having diamonds unaccountably in his possession or boasting that he had obtained them from Argyle. He suggested that solicitors, including Mr Majteles and solicitors from Jackson McDonald, could demonstrate that large sums of money were being paid by Horovitz to Roddan, which could not adequately be explained. He also suggested other lines of inquiry which, in his view, would lead to a circumstantial case against Roddan which would justify a charge. He was critical of Noye for discounting this evidence merely because many of the witnesses had personal grudges against Roddan and because there was no proof that any individual diamonds had been stolen from Argyle. However, his criticism of Noye did not then amount to a suspicion that Noye was corrupt or was receiving money from Roddan. Gwilliam, at that stage, thought that Noye had unwisely got too close to Roddan and had inadvisedly provided Roddan with information concerning the investigation. He did not suspect Noye of being corrupt. In fact, he thought that Noye had, at least initially, been conscientious and active in the conduct of the second phase of the Argyle diamond inquiry.

354 Nevertheless, Gwilliam was convinced that there was corruption elsewhere in the Police Force, among the officers who were at a higher level and who had been concerned in earlier investigations and who represented the institutional view of the police hierarchy that the inquiry should be written-off. It was this belief which led him into his long strictures of criticism going back many years against other senior officers then in the CIB.

355 Gwilliam's attitude was that a detailed investigation into the Argyle diamond matter was inevitable, that the press were already greatly interested in the matter and, that when the inquiry eventually came, so much would be revealed about the defects in the police inquiries that individual officers were likely to be hung out to dry. Consequently, under no circumstances was he prepared to conceal or to withdraw his criticisms of the manner in which senior officers had directed (he would say distorted and frustrated) the inquiries. Gwilliam saw it all against a larger perspective. He suspected that Roddan was involved with L R Connell & Partners and that there was a WA Inc connection to the WADT involving fraud on a major scale. At this time the WA Inc Royal Commission had just been set up and was considering the scope of its inquiry. He, and other police, realised that the Royal Commission was going to inquire into the circumstances under which the WA Government bought an interest in the Argyle mine and set up the WADC and, through it, the WADT. He expected, and indeed senior police were submitting, that the scope of the Royal Commission should extend into the conduct of the investigation into the alleged diamond thefts from the Argyle mine, and that this was another avenue in which the ineffectiveness (he would say corruption) of the overseeing police officers would be exposed. He was determined that he would not be silenced nor would his criticisms of the termination of the Thoy stage of the inquiry be overlooked.

356 This was, admittedly, only at a very early stage of the third phase of inquiries into the Argyle diamond thefts. However, Superintendent Watson and Inspector Robbins requested Gwilliam to assist in the conduct of the third phase of the investigation because of his background and also because of his scepticism about the manner in which the two earlier phases of the inquiry had been conducted. In their words, they were concerned to ascertain whether the police inquiries had been conducted with integrity, or whether their shortcomings were due to incompetence, lack of resources or corruption.

357 They assured Gwilliam that if he took on this task, the inquiry would be fully resourced; it would be headed by a commissioned officer who would be quite independent of any of the senior officers who had been involved in the earlier inquiries whom Gwilliam had criticised; and, that he would have the services of young enthusiastic police officers, of unblemished reputation, who had not come under the influence of any of those whose conduct was under suspicion. Gwilliam agreed and said he would take on the task after the completion of his then current leave. In the meantime he agreed to prepare, at the request of Superintendent Watson and Inspector Robbins, a synopsis of the background of the Argyle investigation, identifying the major suspects and the evidence available against them and to submit that to the IAU officers within a week or so. This was to be used by Inspector Robbins to support a case, which he proposed to put to Assistant Commissioner (Crime) Ayton, to establish this third task force to investigate the alleged thefts and to ensure that it was equipped, staffed and resourced in the manner proposed.

358 One can understand and respect the reasoning behind the approaches favoured by Superintendent Watson and Inspector Robbins. It was clear that they believed that there was a serious case to investigate about alleged corruption in the upper levels of the Police Force. Although Gwilliam was a person with a lot of knowledge and experience about the earlier stages of the inquiry, the strength and bitterness of his criticisms against other senior officers should have indicated, in the plainest of terms, that he was not likely to be an objective, balanced or unprejudiced auditor or reporter in any such investigation.

359 Gwilliam later prepared a report for Inspector Robbins giving an overview of the Argyle diamond inquiries from 1990 to 1992, culminating with the recommendation that a special task force be established to undertake a third and final stage of the investigation. This task force was to comprise a team of trustworthy officers to run the inquiry, while at the same time that the IAU would be conducting a parallel inquiry, and that the selected officers should be removed from normal contact from other police officers. This document, although undated, appears to be the sequel to the interview between Gwilliam, Superintendent Watson and Inspector Roddan on 3 March 1993 (Exhibit 111). It comprises Exhibit 162 (7TB, 1509 - 1537). The report begins with the review of the Thoy report (Exhibit 149) and confirms the truth of its contents. Gwilliam then goes on to enlarge upon the Thoy criticisms of the conduct of Superintendent Dalton and his directions, from the earliest stage, to write the inquiry off; the consequent deterioration in the relationship between Dalton and Thoy leading to Gwilliam being removed from the inquiry; Thoy being ordered, against his protests, to terminate the inquiry; and, subsequently, criticisms made of Sergeant Thoy's capacity and competence together with allegations that he had developed a psychiatric illness and orders that he be subjected to psychiatric diagnosis. Gwilliam reports an incident of being told by Superintendent Dalton that "You can't believe anything Robin Thoy says because he is psychotic" - an attribution which Gwilliam would not accept, because of his own experience with Sergeant Thoy, and which he said was refuted by two other private psychologists retained by Thoy himself. He then went on to develop his allegations that there were grounds to suspect that a large-scale fraud was being perpetrated via the WADT and East-West in connection with creaming-off a significant share of the WADT entitlement to the Argyle diamonds. He also alleged that Superintendent Dalton refused to authorise proper inquiries into that aspect of the investigation.

360 Further complaints about the conduct of Superintendent Dalton are recorded, including an express allegation of corruption against Dalton. Gwilliam refers to a break-in to a filing cabinet held at Police headquarters containing tape recordings of Dalton's instructions to write the inquiry off. This was investigated but no conclusion reached.

361 Gwilliam reiterates his belief in the existence of a serious problem given the shortfall of diamonds being processed through WADT and confirms his belief that this was a matter which warranted investigation. He also explained that after he was transferred out of the Thoy inquiry, he maintained contact with Corfield and others from Argyle and also began, and kept up-to-date, his own inquiries about corruption within the Police Force. He recorded that at that point the Independent Corruption Commission had been informed of the allegations, the State Liberal Party had also been advised and the WA Inc Royal Commission had been notified. He became aware that further information had come to hand and that Argyle was pressuring the Police Force to reopen the inquiry.

362 Gwilliam sets out that he was directed to assist the new inquiry (the second) as an advisor only and that the inquiry would report directly to Deputy Commissioner Zanetti. He observed that reporting to Zanetti only occurred in the early stages of the inquiry. Reporting conditions then changed and it was the CIB administration that was then briefed. He decided to take an active part in the investigation and concentrated on inquiries with the jeweller, Devenish, who, he reported, was reluctant to make a full statement because of fears of Roddan, but gave assurances that he would tell more if called to give evidence at a committal hearing or if he had access to a Crown prosecutor. Gwilliam believed that there was sufficient circumstantial evidence to justify charging Barry Crimmins and Roddan with conspiracy to steal. Noye did not share that view and began meeting with Roddan alone and supplied Roddan with a number of documents relating to soil analysis. Gwilliam was critical of this and says that he told "as many people as I could". He then applied for and took long service leave. He took no further part in the Noye investigation, but nevertheless maintained his links with the security staff at Argyle.

363 Gwilliam then reported upon his review of the Noye report (Exhibit 3), which he said he had not seen before. He was very critical of the report, identifying a series of alleged omissions; namely, the downgrading or omission of evidence available to establish what Gwilliam regarded as a circumstantial case against Roddan and Barry Crimmins. He was also critical of Noye's conclusions that there were no grounds to investigate the WADT.

364 Gwilliam accepted as true the allegation by Lynette Crimmins that Roddan had been paying off police officers to have the original inquiry dropped. He regarded this as the only credible explanation of why it was abandoned and also as a reason to explain why Noye had recommended writing the inquiry off. He was critical of Noye for treating the evidence of Corfield, Devenish and Raelene Shaw as inconclusive, with critical parts refuted by denials of Roddan. He observed that the evidence from those witnesses and other circumstantial evidence made a case against Roddan, which was sufficient to allow him to be charged, and that it was not the role of the police to accept or make out Roddan's defence. He took the view that the corruption allegations made by Lynette Crimmins made sense and accounted for many of the peculiarities in the investigation, but that they referred to the first investigation as much as the second. He emphasised that there was much that the Police Force could be criticised for in the overall conduct of the investigations of the diamond theft and that it was very much in the interests of the Force to conduct a new objective inquiry and to review assiduously the allegations which had been made. The report also makes the point that, had Thoy been permitted to carry out the first stage of the investigations with sufficient resources and without interference, he would surely have been able to resolve the matter long before then.

365 The whole tone of Gwilliam's report shows that he was convinced that there has been continued corruption at high levels within the Police Force, which had obstructed and derailed both the first and second stages of the inquiry, and that although Noye's performance of his duties in the second stage was, initially, assiduous and satisfactory, midway through he became too close to Roddan.

366 Roddan was arrested by Sergeant Gwilliam and charged on 10 August 1993. As noted before, it was a sudden and unexpected arrest without liaison with the IAU inquiry and was regarded by Assistant Commissioner (Crime) Ayton as causing difficulties (Exhibit 166, p 8).

367 By the time Roddan was due to appear before the Court of Petty Sessions, the State DPP had notified the officer in charge of the police prosecuting division that he, the DPP, had taken over the prosecution of Roddan, pursuant to s 12(b) of the Director of Public Prosecutions Act (as it then was) (Exhibit 159). It was, accordingly, counsel for the DPP who appeared when the charges came before the court and again later on successive applications for bail by Roddan. During this time a number of statements were made implying that a police officer or officers were expected to be charged in connection with the same matter in the immediate future.

368 Noye was charged on 12 November 1993 by summons. Again, before he was required to appear before the Court of Petty Sessions, the State DPP, by letter dated 12 November 1993 (Exhibit 158), notified Inspector Robbins of the IAU that he, as DPP, would take over the conduct of the proposed charges against Noye and Roddan. Again, it was counsel for the DPP who appeared at the hearings involving Noye and Roddan and who represented the complainant at the committal proceedings in April and September 1994. However, the office of the DPP had been involved before that. During the course of the investigation and before Roddan's arrest, the task force approached the DPP from time to time for assistance and in connection with the evidence (see the statement of Inspector Lavender, Exhibit 167, par 6).

369 Inspector Robbins, himself, liaised with Mr Tannin SC of the DPP's office from August 1993 (Exhibit 161, par 12). Other officers involved in assisting the DPP, included Inspector Lavender, Detectives Morskate, Gwilliam, Thoy, Schubert, Mansas, Holland and Rowe (Exhibit 161, par 35). Inspector Robbins described how, at the request of Superintendent Storm, the services of a senior prosecutor from the DPP were sought to provide advice and an overview of the IAU inquiry and the inquiries of the CIB during the third phase. This was in August 1993, before Roddan was charged (Exhibit 160, pars 107 - 110). Inspector Robbins consulted extensively with officers of the DPP before he, himself, laid the charge against Noye. The officers of the DPP at the time also confirmed that they were advising the police before the charges were laid against Noye (statement of Ms Susan Walker, Exhibit 156, par 20, and Mr George Tannin SC, Exhibit 154, pars 7 - 11).

370 I am satisfied that Inspector Robbins liaised closely with the DPP and sought advice and guidance in relation to the course of his investigation into allegations of corruption and, in particular, in relation to the significance of the evidence pointing to an implication of Noye in corrupt conduct. I have no doubt that Inspector Robbins naturally deferred to the senior legal staff at the office of the DPP in relation to these matters. However, there is no suggestion that he ever conceded or abandoned responsibility for the ultimate decision to lay charges to any of those officers or was in any way inclined to do so. He says, and I accept unhesitatingly, that the decision to lay the complaints against Noye was his decision, but was made only after extensive consultation with the legal advisors at the Office of the DPP and senior police officers, including Superintendent Watson, Assistant Commissioner (Crime) Ayton and the Commissioner for Police himself, in early November 1993 (see statement of Ayton, Exhibit 163, par 25). I also accept that those observations, and the advice, were all to the effect that there was sufficient evidence available to lay charges against Noye, that the circumstances were such that the charges should be laid; but, finally, and throughout, the responsibility for laying charges was that of Inspector Robbins. He accepted that and made the decision. He still accepts responsibility for doing so.

Information available when decisions to prosecute were made

371 The institution of the third stage of the investigation by the police into the alleged theft of diamonds from the Argyle mine, following the allegations of Lynette Crimmins in January 1993, has already been partly described.

372 In the early stages of the IAU investigation, while the allegations against Noye made by Lynette Crimmins made him an obvious and necessary focus of the investigation, it is evident that the IAU inquiries were more far-reaching. They considered other allegations of police corruption, again stemming from assertions by Lynette Crimmins, but also, to a significant degree, resulting from statements from Sergeant Gwilliam which, as already mentioned, involved allegations of corruption going back to the first phase of the investigation when he and Sergeant Thoy came to be thwarted by their superiors. It was, and remained, the position of Gwilliam that the alleged corruption by Noye was only the latest in a series of corrupt interferences with a proper police investigation into these alleged diamond thefts.

373 From the evidence in this trial, only an incomplete account of all that was done by police during this third phase of the investigations, by the two task forces, surfaced. However, a great deal of evidence concerning the investigations did emerge and it is these materials which eventually led to the laying of charges against Noye. It is necessary, therefore, to examine and to consider the extent of the information available to the police when the decision to charge Noye was made.

374 In considering the available evidence and its significance, it is necessary to keep in mind what, ultimately, Inspector Robbins, and later the DPP, were to assert were the most incriminating features of Noye's conduct. These included the following:

• His readiness to meet with the principal suspect, Roddan, in cafés at Northbridge, rather than at a police station or in the context of a formal police interview, and on numerous occasions when he was alone.
• Noye's failure to obtain a formal signed statement from Roddan.
• Noye's failure to obtain a formal signed statement from Charles Devenish (a witness who Gwilliam regarded as being in the best position to give details of Roddan's dealings in illicit diamonds and of his admissions that the diamonds had been obtained from the Argyle mine).
• Noye's delivery to Roddan of confidential reports relating to the soil analysis samples of the Newton diamonds prepared by Argyle or CRA.
• the discovery of a copy of the D'Anna report in the materials seized during the execution of the search warrant of Roddan's house, suggesting that this confidential document was delivered to Roddan by Noye.
• Noye's apparent over readiness to be of assistance to Lynette Crimmins in relation to incidents outside his direct area of responsibility, namely.

- the break-in and burglary at her home in Lincoln Street, Highgate.

• Lynette Crimmins' allegation that Noye had prepared a false list of property stolen from her home in Lincoln Street in order to participate in the fruits of the fraudulent insurance claim.
• Noye's private visit to Barry Crimmins at Shepparton, Victoria, in November 1992, his apparently incongruous behaviour while interviewing Crimmins on that occasion and staying overnight at his home, none of which was reported by Noye to his superiors in Perth until after Lynette Crimmins' allegations were made in January 1993.
• The failure of Noye to take any personal action when Roddan reported to him that he, Roddan, was in possession of stolen firearms and, further, Noye's conduct in improperly disclosing to Roddan the identity of the owner of the stolen firearms, with the result that Roddan returned the firearms to that person himself, and collected a reward for their return.

375 The evidence of this aspect of the case which emerged at this trial can be divided into the following:

(b) Statements or other evidence from Assistant Commissioner (Crime) Ayton.

(c) Statements or other evidence from Inspector Lavender.

There was, of course, much other evidence resulting from Police internal inquiries and other investigations. However, I am satisfied that the foregoing comprises the critical information which any investigator would need to analyse in order to decide whether or not to charge Sergeant Noye and, in fact, was the information relied upon by Inspector Robbins for that purpose.

376 Because of the extensive allegations of police corruption which had been made, particularly by Sergeant Gwilliam, and which received reinforcement by the long history of unproductive police investigations into the alleged diamond theft stretching back to 1989, there was undoubtedly concern in the upper levels of the police hierarchy of the possibility that more extensive corruption pervaded some of the higher levels of the Police Force. In an effort to ensure that this aspect of the case was effectively, independently and objectively investigated, the new Commissioner of Police, Robert Falconer, later decided to enlist the assistance of senior investigating officers from an external source - the Australian Federal Police. So it came about that this aspect of the case involved, to a degree, a separate investigation known as "AUSTPOLINV".

377 Senior officers of the AFP interviewed officers of the WA Police Force, including Inspector Robbins, and reported on that investigation. The materials collected in that investigation and the ensuing report comprise Exhibits 128(1) to (4). They are relevant to the present litigation because of the impact which these generalised allegations of corruption, extending beyond Noye, had on the actions and decisions of the senior personnel concerned and the IAU investigation.

378 At this point it is enough to remark that there was no evidence that this AUSTPOLINV report, or any other internal inquiries by the Western Australian Police Force, identified the corruption of senior police officers in the Argyle diamond theft investigations. Further, no criminal charges arising from those allegations were instituted. Accordingly, the only allegations of police corruption which resulted in charges being laid were the charges against Noye which are the subject of these proceedings. This reveals that, despite the vehemence and continuance of Sergeant Gwilliam's allegations of widespread corruption at upper levels of the Police Force, no charges against any other officer were ever instituted and, consequently, large and significant parts of the allegations of Sergeant Gwilliam were never established or acted upon.

379 On 10 February 1993 Inspector Robbins of the IAU reported to Assistant Commissioner Ayton about new information touching the Argyle diamond inquiry received from Lynette Crimmins. The Robbins' memorandum (Exhibit 17 (6TB 1313) and also Exhibit 112 (6TB 1475)) explains how allegations of police corruption involving Lindsay Roddan had been reported by the officer in charge of the Warwick Police Station following her arrest and imprisonment on a charge of disorderly conduct at Roddan's home. Inspector Robbins and Inspector Syme visited Lynette Crimmins at her home at 94 Lincoln Street, Highgate early on 20 January 1993, following her release on bail. She was distressed and the two officers arranged to interview her later in the day at the IAU office in the presence of her solicitor. The interview included the issue of police corruption, but Lynette Crimmins could not, or did not, recall what she had said to the Warwick police.

380 However, Inspector Robbins reported on different matters, namely, that Crimmins alleged that her ex-husband Barry Crimmins had, during the time of his employment with Argyle, been stealing diamonds, passing them to Lindsay Roddan, who was disposing of them to Perth jewellers and overseas, and that Barry Crimmins had been bringing diamonds to Perth on his return flights from Argyle. She also alleged that Barry Crimmins had received money from Roddan in late 1988, was spending conspicuously after receiving the money, and that the payment had been witnessed by a named friend. Crimmins also stated that her son, Michael, had found diamonds hidden in a film canister beside Barry Crimmins' bed at their home in Sorrento in 1989. Robbins interviewed Michael Crimmins and obtained his corroboration of this.

381 Much later, in late 1993 or during 1994, Inspector Robbins prepared five pages of typed "briefing notes" relating to the charges laid against Noye and Roddan. These are Exhibit 23 (7TB 1538 - 1542), and outline the evidence proposed to be called to support the various charges against Noye and Roddan. So far as these relate to Noye, the document discloses that:

(a) With respect to the complaint against Noye, that he attempted to pervert the course of justice on the prosecution of Roddan and others on charges of conspiracy to steal by deceitfully misrepresenting the true evidence available in relation to the prosecution, the evidence available was:

• direct evidence from a witness and co-offender, Barry Crimmins, who had conversations with Noye in which Noye had made admissions which are evidence of a deliberate attempt to write the Argyle file off;
• evidence of Lynette Crimmins of conversations with Roddan and Noye in which they admitted their plans to corruptly write the investigation file off;
• several other witnesses who gave statements of information which were presented to Noye and either ignored by him or deceitfully discounted to other people; and
• Noye's report of September 1992 (Exhibit 3) containing conclusions which are inconsistent with the evidence contained in its supporting annexures.

(b) On the second charge, that Noye published a document which came into his possession by virtue of his public office and which it was his duty to keep secret, the evidence identified was:

• that Noye was given a copy of the D'Anna report from the AFP on or about 24 June 1992;
• that the document was later found in Roddan's possession during his arrest;
• that Noye lied to three people, including Gwilliam, by claiming that he, Noye, could not interview D'Anna because the latter was hospitalised in a mental institution;
• evidence from D'Anna and prison authorities to the effect that D'Anna was not inaccessible, as Noye had asserted; and
• Gwilliam's statement that he saw the original of the D'Anna report in Noye's possession and later found it in Roddan's possession.

(c) On the second charge, that Noye published a document which came into his possession by virtue of his office and which he was required to keep secret the evidence was:

• Gwilliam's statement that in 1992 (on a date later alleged to be 25 March 1992), Gwilliam and Noye met with Roddan at a restaurant in Northbridge and that during the meeting Noye gave Roddan a manila folder containing a number of documents. According to Gwilliam, when the folder was opened, Gwilliam identified a soil analysis report given to Noye by Argyle which was extremely commercially sensitive and confidential. Gwilliam further states that on questioning Noye about this conduct, Noye explained that because of the interpleader dispute the document was part of the discovery which Roddan was entitled to receive; and
• a statement from Argyle's solicitor Konrad Mony de Kerloy to the effect that all matters relating to discovery in the interpleader case were being handled by the solicitors for the respective parties and that this particular soil analysis document was not among the list of documents discovered.

(d) On the charge that Noye, together with Lynette Crimmins and Roddan participated in making a fraudulent claim to the SGIO for indemnity for goods said to have been stolen from Lynette Crimmins' home in Lincoln Street, Highgate, the evidence was:

• Lynette Crimmins' statement that on 3 September 1992 her house was broken into and a camera and some small personal items were stolen. She says that Roddan attended at the premises and when she said then that she would call the police, Roddan claimed that Noye was on his way. Mrs Crimmins alleged that Noye arrived at the scene and that he and Roddan began stealing items from the house and came to an agreement with her to defraud the insurance company and that Noye assisted her in compiling a false list of stolen property. She further states that Noye sent her a copy of the offence report so that her report to the insurer would be consistent. Lynette Crimmins also reported the matter to the official Corruption Commissioner.

(Apart from the obvious facts that there was a break-in, that a list of stolen property was prepared, and that an insurance claim was submitted on the strength of this, the essential component of the allegation, that this was a false claim and that Noye and Roddan themselves stole goods from the Crimmins' home, depends entirely upon the word of Lynette Crimmins.)

(e) On the further charge against Noye, that he improperly disclosed to Roddan the identity of the owner of stolen firearms then in Roddan's possession to enable Roddan to gain a benefit, the evidence was:

• a Mr William Walker of Gnowangerup who reported to the police in January 1993 that his premises had been broken into and three firearms stolen;
• evidence that Roddan contacted Noye to advise that he had possession of the firearms;
• statements from police officers in Gnowangerup that they had been contacted by Noye advising them that Roddan had been told the name of the owner of the firearms and would be delivering the firearms to the owner. A further statement from the owner, Walker, that Roddan had returned his firearms and that Walker paid him $750 as compensation.

382 There is also evidence from Inspector Robbins' own appointment diaries covering the period 20 January 1993 to 17 October 1994 (Exhibit 139, 18TB 4486) of the following meetings:

• 20 January 1993 - Noye and Inspector Syme met Lynette Crimmins and her solicitor;
• 26 January 1993 - He again met with Lynette Crimmins;
• 19 February 1993 - Robbins and Superintendent Watson met with Noye;
• 17 January 1994 - Inspector Robbins met with Lynette Crimmins;
• 21 January 1994 - Meeting between Robbins and Noye regarding the Gwilliam statement;
• 10 February 1994 - Inspector Robbins met with Mr George Tannin SC of the DPP;
• 13 February 1994 - Inspector Robbins met with Barry Crimmins;
• 14 February 1994 - Robbins met with Mr George Tannin SC of the DPP;
• 17 February 1994 - Robbins met with Barry Crimmins at the Fremantle Lock-up;
• 22 February 1994 - Robbins met with Sergeant Gwilliam and instructed him to deliver information regarding alleged corrupt police;
• 23 March 1994 - Robbins meets with Mr Tannin SC of the DPP;
• 24 March 1994 - Further meeting Robbins with Mr Tannin SC of the DPP and other officers of Crown Law Department;
• 6, 7, 8, 12 and 14 April 1994 - Robbins attends at office of the DPP;
• 19 April 1994 - Robbins attends Independent Corruption Commission regarding Noye;
• 19 September 1994 - Conference re trial of Roddan and Noye;
• 28 September 1994 - Robbins attends court re Roddan and Noye;
• 17 October 1994 - Robbins confers with Mr Tannin SC of the DPP;
• 18 October 1994 - Robbins attends Supreme Court re Roddan.

383 Inspector Robbins gave a deposition for use at the committal proceedings against Roddan and Noye. This is Exhibit 38 (10TB 2360). It describes the initial interviews which he and Inspector Syme had with Lynette Crimmins on 20 January 1993; the reporting on this matter to Assistant Commissioner Ayton; the delivery by Ayton of a copy of the Noye report (Exhibit 3) to Robbins for examination; the conduct of an interview by Robbins and Superintendent Watson with Sergeant Noye at the IAU on 19 February 1993; and, his visit to Victoria in April 1993 to interview Barry Crimmins; further investigations upon Robbins' return to Perth, culminating in a visit to Kununurra in August 1993 with Gwilliam to meet Barry Crimmins who, after being interviewed, was charged with conspiracy to steal diamonds from Argyle. Robbins returned to Perth and continued his inquiries. He interviewed Noye again on 16 September 1993 and exercised compulsory powers obliging Noye to report, and to deliver, subject to orders, all notes of interviews which he had had with Roddan.

384 Robbins examined notes from other police officers. He interviewed Roddan on 3 November 1993 in the presence of another police officer and showed Roddan a copy of the D'Anna report and recorded Roddan's answers.

385 Inspector Robbins also describes conducting a brief interview on 12 November 1993 (the third) with Noye, at the offices of the latter's solicitors Quigley & Co, following which he charged Noye on summons and served him with a notice suspending him from duty as a police officer.

386 There is a further deposition from Inspector Robbins which is undated (Exhibit 43 (13TB 3163 - 3165)), part of the prosecution brief on the third indictment. In this deposition Inspector Robbins describes examining two Police Department journals which he had previously taken from Sergeant Noye. At the time in question, Inspector Robbins was attached to the Bureau of Criminal Intelligence ("BCI") and from its records confirmed that on 19 December 1989 the BCI received from CRA Exploration Pty Ltd a certain document. He also identified certain sheets of paper previously delivered to him by Noye, as ordered, containing notes of his interviews of witnesses in the course of his enquiries into the Argyle Diamond thefts and another document.

The Australian Federal Police (AUSTPOLINV) investigation

387 The role of the AFP, at the invitation of the senior command of the Western Australian Police Force, in conducting an independent objective evaluation of the complaints of internal police corruption, has already been mentioned. The only evidence directly sourced from the AUSTPOLINV investigation in these proceedings comprises Exhibits 128(1) to 128(4) inclusive. These are transcripts of interviews conducted by officers of, or on secondment to, the AFP, all with Inspector Robbins. There are four such interviews of Inspector Robbins, conducted by different AFP personnel. They took place on:

(a) 7 July 1995 - the Glare and Menicini interview (Exhibit 128(1));

(b) 27 February 1996 - the Ranse and Drennan interview (Exhibit 128(2))

(c) 25 March 1996 - the Hepworth and Ranse interview (Exhibit 123(3))

(d) 11 April 1996 - the Drennan and Hepworth interview (Exhibit 128(4))

388 The transcript of the interviews are lengthy (over 300 pages) and at times discursive. However, they were accepted by Inspector Robbins as an accurate account of those interviews and parts of them were the subject of lengthy cross-examination of Inspector Robbins in these proceedings. As expected, they deal with the overall conduct of the investigation into the Argyle diamond thefts and, more particularly, the investigations by the IAU, under Inspector Robbins, of the generalised allegations of police corruption. They reveal the different points of view held or advanced by different officers at senior levels within the Police Force, at the material times. They are significant in revealing what inspector Robbins and other investigating officers thought to be reliable evidence at the time and what was rejected or discounted because of many various factors which tended to detract from the objectivity or reliability of the informant or accuser.

389 It is important to recall that these interviews spanned a period of nine months, from July 1995 to April 1996. That is, after Noye and Roddan had been charged and indicted, but before the third and final indictment was laid against Noye in June 1998 and, of course, before the nolle prosequi was presented on 8 November 1998. Roddan's conviction after his trial of conspiracy to steal diamonds from Argyle occurred in May 1996.

390 Exhibit 128(1), the Glare/Menicini/Robbins interview of 7 July 1995, was part of the AUSTPOLINV commissioned by the new Commissioner of Police, Commissioner Falconer, to apparently investigate generalised allegations of corruption in the Police Force, but particularly, the handling of the Argyle diamond inquiry. The officers conducting the investigation were clearly interested in any aspects of police corruption. In particular, they were interested in the allegations which had been made by Crimmins, and by Gwilliam, of widespread high-level police corruption which had led, so they alleged, to the termination of the Thoy/Gwilliam inquiry and then to the subsequent report in September 1992 of Noye recommending that the second inquiry be terminated.

391 Another matter in which the investigating officers were plainly concerned was why, after Lynette Crimmins had made her allegations; Barry Crimmins had confessed; both of the Crimmins had been charged; Roddan arrested and charged; and, Noye had then been charged, further continuation of the inquiry into the allegations of more widespread and senior corruption effectively ceased.

392 Much of the time was spent questioning Inspector Robbins about why he had not taken a greater role in investigating the allegations of theft of diamonds from Argyle once he was assigned to investigate the allegations made by Lynette Crimmins. However, he explained that this was largely to do with internal divisions of responsibility within sections of the Police Force and longstanding practices and policies which prohibited officers in one section from trespassing in areas of responsibility of others. Inspector Robbins explained that when the allegations of stealing from Argyle were first brought to the attention of the police by Corfield of Argyle, the initial contact and evaluation was done by the Bureau of Criminal Intelligence (BCI). However, they were not permitted to conduct any criminal investigation operations. So it came about that Thoy, with the assistance of Gwilliam, was commissioned to undertake the first inquiry. Secondly, after Lynette Crimmins had made her allegations, the investigation of police corruption was in the exclusive province of the Internal Affairs Unit. So it was Inspector Robbins, under the supervision of Superintendent Watson, who had the responsibility of investigating the allegations against Noye. This, however, did not permit or allow him to move into the area of general investigation of the allegations of stealing from Argyle which, at that stage, was being conducted by the task force headed by Inspector Lavender and conducted by Sergeant Gwilliam. Accordingly, there was this arbitrary division of responsibility which was consistent with longstanding police procedure. Afterwards, Robbins told these investigators, and it emerged in evidence at this trial from both Robbins and former Assistant Commissioner (Crime) Ayton, that this division of responsibility proved to be a major problem. Robbins said that, in hindsight, it would have been much better to have had one task force with total responsibility to cover all areas of interest, but that was not the way things were done at the time.

393 In relation to the first inquiry, conducted by Thoy and Gwilliam, it is quite clear that it was closed down by order of Superintendent Dalton and other superior officers. Thoy and Gwilliam always thought that that was wrong and corrupt, and developed something of an obsession which they never abandoned. The fact of the matter was that the senior officers at the time were operating in a climate of limited resources and had expected that an investigation of that nature would produce some tangible results. Thoy was regarded as an honest police man, but with a tendency to make mountains out of mole hills and not to accept direction, bordering on the insubordinate. When, after a year had elapsed he recommended that his team be permitted to broaden the inquiry by taking on an investigation into the WADT and making inquiries overseas, the supervising officers simply became impatient and exasperated at this lack of progress. Taking the view that more than sufficient resources had been devoted to the project already, they closed it down. As already stated, Thoy and Gwilliam never accepted this. Gwilliam had a longstanding hostility towards Dalton and both he and Thoy were suspicious of Deputy Commissioner Zanetti.

394 At this time it was believed, in some quarters of the higher command of the Police Force, that there was serious corruption at high levels in certain places. The Armed Robbery Squad of the CIB, the Vice Squad and the Drug Squad were areas where it was genuinely believed that serious corruption existed. Consequently, the IAU had a number of names, including the names of senior officers, as "targets", in respect of which long-running investigations or surveillance was taking place. Some of the allegations that were circulating at this time did in fact refer to Deputy Commissioner Zanetti. However, Robbins reports that he and the DPP came to the conclusion that Zanetti was not dishonest or corrupt, although he did have a tendency to interfere unduly in the operational side of investigations being conducted by staff under his supervision. There was also some concern about the integrity of Superintendent Kiernan (of the CIB); a senior staff officer to Deputy Commissioner Zanetti; and Superintendent Dalton. Nothing in the evidence suggests that these suspicions resulted in any proof of corruption being uncovered or of charges being laid, but the suspicion was real and there were internal opinions circulating within the Police Force about these matters. Superintendent, (later Assistant Commissioner) Ayton, was widely regarded as being honest, competent, trustworthy and dedicated to the eradication of corruption. He was respected and supported by those of his subordinates who had a history of working with him, including Inspector Robbins. However, Ayton was seen as a threat by those associated with the old-style CIB and it was known that there was animosity towards him, for various reasons, from Zanetti and others. The senior levels of the Police Force were then far from harmonious or co-operative and many of the actions and decisions of senior officers were interpreted by others, depending upon their inclination or allegiance, as being made for corrupt purposes.

395 Consequently, when Thoy and Gwilliam made, and maintained, their allegations of corruption, they could not readily be dismissed, rejected or silenced. Nor would Thoy or Gwilliam comply fully with the direction to cease the investigations. Although their investigation had been closed down and they had been redeployed to other areas, Thoy maintained a constant communication with Corfield of Argyle. Corfield had a number of investigators (former ASIS operators) whom he had engaged to operate undercover and seek information about the distribution of illicit diamonds. He fed the results of those efforts to Thoy and Thoy kept in touch with the investigation. It was as a result of this continued unofficial series of inquiries that Argyle eventually went to the Commissioner of Police and agitated for the reopening of the inquiry and hence the appointment of Noye, with the assistance of Gwilliam, to carry out the second stage.

396 The closing down of the first stage of the inquiry had, however, resulted in the humiliation of Thoy and he was bitter and unco-operative. He and Gwilliam remained fixed in the view that corruption at the upper levels had interfered with the inquiry and, as matters wore on, Gwilliam interpreted any reverse, or failure to accept his own view, as further demonstration of the existence of this unseen corruption.

397 When it came to the choice of Noye to conduct the second stage of the inquiries, various officers at a senior level recommended against it, including Superintendent Ayton, on the grounds that, although he was thought to be a reliable officer, Noye did not have the experience or competence to take on an investigation of this magnitude or complexity. However, their recommendations were overruled, it seems by Deputy Commissioner Zanetti. Noye got the job with the assistance of Gwilliam, whose inclinations, prejudice and sympathies in this regard have already been described. It is hardly surprising, therefore, that Gwilliam and Noye fell out and that Gwilliam walked out of the Noye stage of the inquiry in mid 1992. Robbins was explicit that, at that time, the IAU did not have Noye as a target and regarded him as "not traditionally linked with our network of suspected corrupt people" (Exhibit 128(1), 14TB 3327).

398 Consequently, when Lynette Crimmins made her allegations of stealing and police corruption in January 1993, the charges of corruption fell on fertile soil, particularly so far as Gwilliam and Thoy were concerned. The allegations of corruption, including against Superintendent Max Kiernan ("Uncle Max"), did not come as a complete surprise to Robbins or other senior officers of the IAU, particularly as Kiernan was already under notice. The IAU, under Ayton, Watson and Robbins, therefore believed that the matter required serious investigation, not just in relation to the allegations against Noye.

399 At that stage, however, at the senior levels of the Police Force the view was that, despite intensive investigations, and many theories and allegations, there had simply been no demonstration of actual thefts of diamonds from Argyle. Consequently, before any major new investigation could commence, it would be necessary to confirm that there had, actually, been systematic stealing. It was for this purpose that Inspector Robbins decided, with the approval of his superiors, to visit Barry Crimmins in Shepparton who had, of course, been identified as one of the principal suspects.

400 Although Robbins was not charged with investigating the diamond thefts, the investigation into the alleged corruption could only proceed on the basis that there had indeed been thefts, which had resulted in corrupt police action in diverting the previous inquiries. Robbins told the investigators that he had no doubt that Barry Crimmins had been stealing diamonds from Argyle, but when he telephoned him to ask if he could visit him in Shepparton, his sole purpose was to ascertain what had happened when Noye had visited him in Shepparton the previous September 1992. In that conversation, Robbins says that Crimmins as good as admitted that he had stolen diamonds from Argyle. However, Robbins' task was not to investigate that aspect of the matter but, rather, the corruption. He explained this to Crimmins in the hope that, with this assurance, Crimmins would be co-operative in relation to the Noye investigation.

401 When Robbins met with Barry Crimmins in Shepparton on 7 April 1993, there was a point in the meeting when Crimmins acknowledged, perhaps only obliquely, that he had been involved in stealing diamonds from Argyle. Again, that aspect of the matter was not pursued and the interview, most of which was taped (Exhibit 113, 6TB 1480 - 1490), dealt with approaches from Noye and with events during the latter's visit the previous November.

402 At one point in the discussion, however, Barry Crimmins asked that the tape be turned off, and it was. During that interval Barry Crimmins told Robbins of a previous incident which, in his view, demonstrated that Lynette Crimmins, on important matters, could be untruthful and was prone to making serious, but false, allegations. The incident he described had apparently occurred some years before when Crimmins and his wife were living in Victoria where he was a member of the Victorian Police Force. Lynette Crimmins complained to her husband that she had been assaulted and raped by a police officer colleague of her husband. Barry Crimmins accepted this, went and saw the officer named, accused him of this wrongful behaviour towards his wife and then "gave him a hiding". However, it turned out that the whole accusation was false and that there had never been an incident such as described by Lynette Crimmins. This was Barry Crimmins' way of warning Inspector Robbins against accepting allegations made by Lynette Crimmins against him, Roddan or others. Robbins was most insistent, to the investigating police officers and again during the course of his cross-examination at this trial, that that was the only matter discussed when the tape was not running at Shepparton. At the end of the meeting, he gained the impression that Barry Crimmins was very concerned about his position and was on the brink of making a confession and turning himself in.

403 Shortly after his return to Perth, Inspector Robbins received a telephone call from Lynette Crimmins who had, in the interval, spoken by phone to Barry Crimmins. She recounted that Barry Crimmins was very concerned and anxious about his position and was giving thought to going to the police to make admissions. That did not eventuate, at least immediately, and Barry Crimmins left Shepparton and headed north. Robbins thought that he had "done a runner", and that they had lost track of him. It seems that, via Corfield and Gwilliam, Barry Crimmins kept in contact with the progress of the investigation. A few days or weeks before he eventually attended the police station at Kununurra in August 1993 he contacted Gwilliam to say that he was coming to Western Australia and would co-operate and make full statements. What transpired between Gwilliam and/or Corfield on the one hand and Barry Crimmins on the other has not been disclosed by evidence in this case. However, I infer that there were communications and incentives held out to Barry Crimmins to co-operate.

404 The further topics of the AUSTPOLINV first interview retrace ground which has already been much covered in these reasons. This includes the charging of the two Crimmins and the later arrest and charging of Roddan, before passing to the question of why, after Noye was later charged, the investigation into the wider allegations of corruption at senior levels of the Police Force was not pursued. Robbins could not contribute much to that aspect of the matter because his function, by then, was to assist and liaise with the DPP in relation to the prosecutions for corruption of Roddan and Noye. However, it was evident, from what he did say, that those aspects of the allegations did not go much further.

405 Corfield, on behalf of Argyle, demanded that a police team should be sent to Europe to conduct investigations in Antwerp and Geneva and elsewhere. Gwilliam and others were dispatched and a lot of information was assembled. However, this was not collated or compiled, nor were other available witnesses in Perth interviewed, and the investigation simply petered out. Quite why this happened does not satisfactorily emerge, except that it seems to have been related to internecine rivalries or divisions within the Police Force itself.

406 Robbins was quite critical of the conduct of Thoy and Gwilliam, not because he thought they were wrong in their conclusions that Roddan and Crimmins had been involved in stealing diamonds - they were in fact entirely correct in that regard, but in regard to their methodologies, their intransigence and their refusal to act in accordance with directions. Robbins said that their task force office was disorganised, that Gwilliam was undisciplined and that they were conducting their investigation with a view to an underlying bigger picture - meaning that they were pursuing signs of corruption in senior officers during the first stage of the original investigation. He described Inspector Lavender as doing his best but being frustrated with that team. He again stressed that the problem was maintaining some kind of effective supervision over Gwilliam, to control his impetuosity, an example of which was the arrest of Roddan by Gwilliam at a time when the co-ordination with the DPP's office was on the basis that there should be no sudden arrests. Robbins explained how the Gwilliam team would not take direction or suggestion from him and that they would not tell him what was going on, even though they were confiding regularly in Lynette Crimmins and in Corfield. Any attempt by him to suggest that a different approach be taken resulted in suggestions that he was corrupt.

407 One matter which had surprised Robbins was his discovery, from his visit to Barry Crimmins in April 1993, that Gwilliam had been negotiating with Crimmins before then and, as it transpired, afterwards. Robbins also explained that during the course of the investigations by the IAU, he and his colleagues had been keeping their eyes on certain "targets", including a group which they termed "the Tiger Club" who were believed to be corrupt. He said that he was under no illusions that, at the time, there was a form of high level corruption in the organisation (Exhibit 128(1), 14TB 3343). However, there was nothing to suggest that Noye was associated with this group or that he was living beyond his means. Nevertheless, those allegations were not effectively followed up after the charging of Roddan and Noye. Robbins explained that the senior officers had to forcibly close Gwilliam's investigations down because he just would not stick to the objectives of the inquiry (Exhibit 128(1), 14TB 3345). He also referred to Gwilliam as having a siege mentality, as not providing accurate information and, indeed, withholding information.

408 When the AUSTPOLINV investigators pursued this aspect of the matter (Exhibit 128(1), 14TB 3351) they asked Robbins for his views upon three senior level police officers, Kiernan, Zanetti and Chadbourne. The three had been under investigation. However, the conclusion was that Zanetti was interfering rather than corrupt; Chadbourne was Zanetti's staff officer and, despite his seniority, was believed to have been corrupt; and, that Superintendent Kiernan who had retired, was believed to be inappropriately connected to Laurie Connell. A third officer, B, was also believed to be corrupt. The result of all this was that Robbins, and for that matter Ayton, did not trust Zanetti, or the others named. They believed that there was corruption at senior levels within the Police Force, although nothing had been revealed to connect any of the suspected corruption, or the suspected corrupt officers, with the Argyle diamond inquiry. Nevertheless, Roddan's association with Connell meant that such a possibility could not be discarded.

409 Lynette Crimmins continued to be the principal informant when it came to providing evidence against Noye. However, not inappropriately, Robbins entertained considerable reservations about her. First, on the grounds that she may have some personal reason to attempt to revenge herself against Noye; secondly, that she was known to be heavily involved in distributing stolen diamonds, not just Argyle diamonds, but other stolen diamonds which Roddan was receiving and selling; and, thirdly, that she had an incentive to ingratiate herself with the police in the hope of obtaining lenient treatment.

410 It is hardly surprising that when high-level corruption is believed to exist within an organisation that factions develop, mutual suspicions exist, and that there is a tendency to attribute failures or unsuccessful outcomes to the influence of the alleged corruption. This results in a distortion of the independent objective assessment of evidence during the conduct of inquiries. It is but another example of the pernicious effect of corruption in causing a break down of trust and working efficiency within such an organisation. It is important in this case to realise that these suspicions of institutionalised corruption ran very deep and, apparently, were not without some foundation.

411 Efforts were made by Assistant Commissioner (Crime) Ayton and others to have this aspect of the Argyle diamond investigation examined and investigated by the then current WA Inc Royal Commission. The matter was reported to the WA Inc Royal Commission, and senior officers, including Robbins, were interviewed by Royal Commission investigators, but it was not taken up as a term of reference. At the same time, reports had been made, including reports by Lynette Crimmins, of corruption to the Independent Corruption Commission, whose representatives interviewed various officers, including Robbins. Roddan was the kind of man who, whether he was able to influence police officers corruptly or not, never hesitated to suggest to his circle of acquaintances that he could. He did this, presumably, in an effort to enhance his own influence and power. His self-promotion undoubtedly added to the dimension of the problem and obviously contributed to the belief by Lynette Crimmins that widespread corruption existed.

412 When the various police teams liaised with, or sought advice from the State DPP, this problem was not contained. Robbins was attempting to maintain the conventional objective approach to the assessment of evidence. However, Gwilliam, who was simultaneously communicating with the DPP in relation to the diamond theft inquiry, was convinced of the existence of corruption and interpreted the evidence and events through that distorted lens. I hasten to add that there was never the slightest suggestion of any corruption at the office of the DPP or by any of the advisers there involved. However, looking at the matter from their perspective, they must have been very alarmed and concerned at the information that they were getting that the Argyle diamond theft investigation was, and for a long time had been, perverted by corruption at many levels. The need for appropriate action to respond to such a serious threat to the integrity of the law enforcement apparatus was obviously very great. At that stage, if such serious corruption did in fact exist, then it was more easy to believe that, somehow or other, Noye had belatedly become involved in it. The significance of this background, which, I am obliged to say, was distressingly real, meant that the accusations made, and the potentially adverse inferences against Noye, were more likely to be accepted. The magnitude of the problem added a dimension of urgency to the need for action.

413 In the events which happened, no other charges of corruption were laid against other police officers and no convictions of any kind resulted. The implications of the evidence of Assistant Commissioner (Crime) Ayton and Inspector Robbins, are that it was just too difficult to obtain evidence which would justify a charge or lead to a conviction of senior officers, and that the known targets were identified, kept under surveillance and, before long, resigned or retired from the Police Force, so that the problem of suspected corruption was dealt with by these other indirect means.

414 However, in the absence of evidence implicating others or showing an association between Noye and the others who were suspected of corruption, the case against Noye alone undeniably loses much of its supposed magnitude. The trouble was that during the period when these suspicions were entertained and the decisions as to whether or not Noye should be charged and the prosecution against him continued, the perception of internal corruption was at its height. Further, Gwilliam, who would hear of nothing else, and would not conform to discipline, had unrestricted access to the team at the Office of the DPP that was dealing with both aspects of the investigation; namely, corruption and the diamond theft inquiry. For obvious reasons, the DPP team did not have the same level of insight into the character and determination of Gwilliam, that his own superior police officers possessed. Consequently, the probabilities are that he had an influence on the decision-making process which, had he been subjected to closer control, should never have occurred.

415 The second AUSTPOLINV interview with Inspector Robbins took place on 27 February 1996 and is extremely long (Exhibit 128(2)). It is obviously a follow-up interview, conducted after much other information had been gathered from other persons including, particularly, Lynette Crimmins, who, by then, had made allegations to other police officers about Inspector Robbins' own conduct. The officers conducting the interview were also concerned about the adequacy of the investigation of allegations of crime against third persons, which arose during the course of the Argyle diamond inquiry. They were further concerned as to whether or not allegations against other police officers had been properly recorded and pursued. Much of the interview addressed the methodology followed by the several teams in the conduct of the separate investigations into the theft of diamonds and the alleged police corruption during 1993 and 1994.

416 This interview revealed that Robbins, followed by other senior police officers, and then the DPP, began to develop concerns and doubts about the propriety of the conduct of the Gwilliam task force, particularly of Gwilliam and Thoy, and the involvement of the Argyle security officers, Corfield, Burton and their undercover assistants. As time progressed these concerns deepened. By mid to late 1994 very real misgivings were held about the conduct of those persons.

417 Again, the initial interviews between Inspector Robbins, Inspector Syme and Lynette Crimmins, held on 20 January 1993, were reconsidered. Those two IAU officers had contacted Lynette Crimmins because of the report from the Warwick Police Station the night before that, whilst in custody, she was making a number of allegations of police corruption and, apparently, mentioned the name Max Kiernan. However, in her discussions with the two senior IAU officers, she did not name any police officer as being involved in police corruption. She did, however, implicate Barry Crimmins in the theft of diamonds from the Argyle mine and referred to various discussions which she had had with Noye during the course of his investigation. This prompted Robbins to report on the developments to Assistant Commissioner (Crime) Ayton and to Deputy Commissioner Zanetti. They confirmed his own decision to proceed with an IAU investigation.

418 Robbins' view at the time was that, since it had never been clearly demonstrated that there had actually been diamond thefts from Argyle, it would be necessary to establish that thefts had occurred in order to reopen the diamond stealing inquiry and justify an IAU investigation into corruption. His approach was to make a visit to Barry Crimmins in Shepparton to confirm whether or not Noye had visited Crimmins there privately and, if so, to ascertain what had occurred. That, of course, led to his visit to Victoria in April 1993. It was not until after Robbins' return from that visit that the Lavender/Gwilliam task force was set up to reopen and pursue the diamond stealing investigation.

419 On his return from Victoria Robbins sought information from Gwilliam, and then from Thoy, about the investigations which they had previously conducted. In particular, he sought out the basis for their conclusion that there had been thefts from Argyle and that corruption was involved. Robbins approached Thoy several times for assistance in this regard, but Thoy was, to a degree, unco-operative. He made many references to evidence which he possessed indicating police corruption, but when asked to produce the evidence he failed to do so. It went as far as Robbins formally ordering Thoy to produce tape recordings and other documents, which the latter said were in his possession and supported those allegations, but, apart from producing a few inconclusive written notes, Thoy persistently refused to comply. It was evident that Thoy was suspicious of Robbins and an impasse was reached.

420 Robbins also became aware that Thoy and Gwilliam were in regular contact with Corfield and his staff and that Corfield had his undercover staff conducting surveillance of various persons and submitting surveillance reports to Gwilliam with a view to persuade the police to pursue particular lines of inquiry. Robbins disapproved of this liaison between Gwilliam and others and the Argyle representatives and the attempts by Argyle to influence the course of various police inquiries but he, Robbins, was not able to alter the position.

421 More detail emerged of telephone conversations from Barry Crimmins following Robbins' meeting with him at Shepparton on 7 April 1994. Shortly after that meeting, Barry Crimmins telephoned Lynette Crimmins in Perth and told her of the visit by Robbins. In the course of the conversation he made some form of apology to her for disparaging her to Robbins (a reference to the discussion when the tapes were turned off that Lynette Crimmins had in the past made false allegations of rape against a former Victorian police officer). He also gave Lynette Crimmins the impression that he, Barry Crimmins, was considering whether or not to confess to his involvement in the diamond stealing. Very shortly after that conversation, Lynette Crimmins telephoned Robbins, who by then was back in Perth, to relay the details of her conversation with her former husband. As a result of that information, Robbins then telephoned Barry Crimmins, it seems for the purpose of inquiring, if only indirectly, whether or not he was ready to confess. He had a short, but inconclusive, conversation with Barry Crimmins, and was left with the impression that Crimmins was close to making a confession and might very well do so now that he realised that serious steps were being taken to reopen the diamond theft investigation. That was Robbins' last conversation with Barry Crimmins before the meeting with him at Kununurra in the presence of Gwilliam - where he did eventually confess - on 29 August 1993.

422 Nevertheless, much later, after Roddan and Noye had been charged, Robbins learned that Burton and Gwilliam had been present together on occasions interviewing Lynette Crimmins and taking statements from her. As already mentioned, he also learnt that situation reports, prepared by the Argyle undercover operatives engaged by Burton, were finding their way into the task force documents. Much later still, and in some instances as late as 1996, but in others during the course of the preparation of the brief for the DPP, Robbins discovered that Gwilliam and Burton had been interviewing and taking statements from third persons, such as pharmacists who were suspected of purchasing stolen diamonds from Lynette Crimmins. Statements by these third persons recorded that they had been assured by Argyle that it would not contest the ownership of the diamonds which those individuals had purchased, in the event that those persons gave evidence as set out in the statement in proceedings against Roddan. Robbins believed, not without reason, that this was most improper. Neither Gwilliam nor Corfield could give any assurance of immunity from prosecution because, by statute, that could only be done by the DPP. There are other indications to suggest that Gwilliam had also been in touch with Barry Crimmins before the latter said that he would visit Western Australia and give a full statement to the police at Kununurra or Broome.

423 When asked in detail about the meeting with Barry Crimmins at Kununurra in August 1993, Robbins firmly maintained that he had not made, and was not present when, any offer or inducement was made to Crimmins in return for his co-operation or confession. It did emerge, however, that when Barry Crimmins first arrived outside the police station, there was a brief conversation between him, Gwilliam and Robbins, during which Crimmins asked of the consequences of him agreeing to give evidence for the Crown. Robbins says that he explained that there would be no deals of any kind, but that persons who pleaded guilty to charges and co-operated with the police could usually expect significant discounts when a court imposed sentence on them for any offence disclosed. Also, because the police officers were satisfied that Barry Crimmins was not likely to abscond and that, if he were to be arrested and imprisoned without bail, he might be at risk within the prison system because of the suspected influence of Roddan, he was not arrested but was instead charged on summons. He was also allowed to attend his daughter's 21st birthday party in Broome, which was the major reason for him to visit the State.

424 There was no express suggestion that a formal deal was done with Barry Crimmins but there were approaches made to him by Gwilliam and/or Corfield and it is very probable that a variety of incentives were offered for his co-operation. Indeed, Assistant Commissioner (Crime) Ayton accepted that arrangements had been reached for Barry Crimmins to receive special treatment, and that the circumstances of his being charged on summons; being later permitted to leave the State; and, being allowed to attend his daughter's birthday party, were clear indications of this.

425 All the circumstances point to the conclusion that Gwilliam, but particularly Corfield on behalf of Argyle, were making overtures to Barry Crimmins, and later to Lynette Crimmins, to try and persuade them to give as much information as possible about Roddan's activities and the system of distributing and selling stolen diamonds in Western Australia and in Europe. This makes sense from the Argyle viewpoint, because it was far more important for their system of diamond selling and distribution to be completely secure than for the company to be severe with Barry Crimmins or Lynette Crimmins who, by then, had admitted to their involvement in the thefts and who would be dealt with by the courts.

426 It is hard to see any other explanation for Argyle's financial support of Lynette Crimmins for her legal costs in the present proceedings, other than this being part of an overall arrangement of support offered by Argyle to the Crimmins during the crucial stage of investigations leading up to the breakthrough. There is no impropriety, in principle, by Argyle, in offering a type of reward for information which would lead to the discovery of the true facts of the diamond stealing operation. However, the existence of such arrangements are matters which are relevant to an assessment of the integrity, reliability and objectivity of the evidence of each of Barry Crimmins and Lynette Crimmins when it comes to their implication of others, and in particular of Noye. Furthermore, the methods employed by Gwilliam and Corfield for obtaining information, particularly from Lynette Crimmins, and then suggesting the course of the inquiry and the extent of corruption suspected, also have the effect of skewing the investigation, as well as the decisions of the senior police officers and the DPP, towards their long-held belief that the nature and extent of police corruption was significant and far-reaching.

427 This was undoubtedly a continual problem in the course of the investigation. Robbins told the investigating police officers (Exhibit 128(2), 14TB 3435) that neither he nor the IAU staff could control leaks coming from the investigation to the press and that he could not trust Burton, Corfield or Gwilliam because of their constant and determined assertions of widespread police corruption. One example of the attitude of the Gwilliam team, to which Thoy had somehow attached himself, was that each of those officers had alleged that Robbins himself was corrupt because he would not accept or pursue some of the allegations which they were advancing. There were many examples, however, of the Gwilliam task force and the Argyle representatives spreading confidential information about the progress of the Argyle inquiry (Exhibit 128(2), 14TB 3436).

428 It was, at first, hard to accept that this third task force investigating the diamond thefts, ostensibly led by Inspector Lavender, could prove to be so insubordinate and recalcitrant. However, it became clear that although Inspector Lavender had attempted to bring the group under control, regrettably, he had very little influence. He was not engaged full-time on the investigation. Furthermore, he was located at Police Headquarters, while Gwilliam, now joined by Thoy, and with frequent free access from Corfield, Burton and their undercover agents were operating out of an office on the corner of Bennett Street and Adelaide Terrace, Perth, which was being paid for, and to some extent staffed, by Argyle (a number of the secretarial staff were Argyle personnel). Robbins learned of this, to his surprise, and demanded that the Argyle staff be excluded and that Thoy be taken out of the office. Robbins said that none of the senior police officers wanted Thoy there because he could not be trusted to concentrate on the principal issues. According to Robbins, Deputy Commissioner Zanetti, Assistant Commissioner (Crime) Ayton, Superintendent Storm and Inspector Lavender all wanted Thoy out of the Bennett Street office (Exhibit 128(2), 14TB 3451). To give credit to Inspector Lavender, he attempted to deal with the problem. However, his instructions were not obeyed and, in practical terms, because of his long acquaintance with the facts of the complicated inquiry, it was impossible to remove Gwilliam from the investigation (see Exhibit 128(2), 14TB 3452 - 3455).

429 As time wore on the original attitudes of Thoy and Gwilliam to the existence of widespread police corruption dating back to the earlier stages of the inquiry were shared by them with Corfield and the Argyle security personnel. It became a constant theme in the approach coming from those quarters, to such an extent that any suggestion from other police officers that the opinions were unjustified, or that evidence should be supplied to support them, was met with allegations that the officer or officers who queried that approach were themselves corrupt. There was almost no control over the actions of the Gwilliam team.

430 Another fact which Robbins discovered only later, to his embarrassment and disapproval, was that the airline travel from Perth to Kununurra, organised at short notice for himself and Gwilliam to meet Barry Crimmins, was actually paid for by Argyle. Robbins considered that this was inappropriate. He took the view that the police internal investigation into the alleged corruption of Noye, or any other officer should not in any way be dependent upon Argyle for funding. Furthermore, he considered that the steps in the investigation, and the evidence involved, should not be disclosed to Argyle or to its representatives unless for good operational reasons.

431 In the course of this examination, attention was directed to the approaches which were made to Barry Crimmins. However, Robbins made it clear that, apart from his visit to Shepparton in April 1993 and his telephone conversation with Crimmins a few days later after his return to Perth, he had no communications with Crimmins until the meeting at Kununurra in August 1993. When questioned as to why he, Robbins, had not attempted to interrogate Crimmins about his suspected involvement in the diamond thefts, Robbins' explanation was that he was not sufficiently familiar with the details of that investigation or the evidence available to conduct a useful interrogation and that this was, in any event, the responsibility of the other team. His view was that it was better for him to imply to Crimmins the fact that there were serious investigations into the theft going on in Western Australia, rather than to reveal his limited knowledge of the state of the evidence. By this approach, it was Robbins' expectation that Crimmins would be more anxious about his position and more disposed to confess in due course. In making that explanation, Robbins said (Exhibit 128(2), 14TB 3465): "We needed to have someone turn. I mean, there's no doubt about that. Without Barry Crimmins' evidence turning against Noye we wouldn't have a brief against him". This recognises, at least at that stage of the investigation, that Lynette Crimmins' allegations were either insufficient or inadequate to support the laying of charges against Noye.

432 After the arrest of Roddan and the charging of Noye, further investigations in relation to the overseas links in the theft of diamonds and their distribution were pursued. With the approval of the DPP, who by then had taken over the prosecution, a team led by Gwilliam and other WA police officers travelled to Europe. This, however, was very much at the instance of Corfield and Argyle. The persons who accompanied Gwilliam were Inspector Lavender and Detective Edward Rowe from the Proceeds of Crime Unit. Robbins was not concerned with this aspect of the investigation because he was satisfied that there was no evidence whatever which could support corruption charges to be obtained overseas. Robbins remained on secondment to the DPP and was involved in helping to prepare the brief for the prosecutions. He reported that, by this stage, even the DPP began to have some reservations about the competence of Gwilliam. Gwilliam was taken to task about some evidence which he had given at a bail hearing against Roddan which caused the DPP concern that he might have perjured himself. This led to a loss of confidence in Gwilliam's competence among the DPP staff (see Exhibit 128(2), 14TB 3475, 3479). This ultimately led to the Lavender/Gwilliam task force being closed down by Inspector Lavender in December 1994. Up until that time, however, Thoy frequently attended at court hearings together with Gwilliam, and Robbins was satisfied that he continued to be a driving force behind a lot of what Gwilliam and others were doing.

433 This development also coincided with a change in the attitude of Lynette Crimmins towards Inspector Robbins. Initially, he had established a good rapport with her and she frequently sought his assistance and reassurance in relation to various aspects of the investigation. But once Gwilliam and Thoy began dealing with her more regularly, she turned against Robbins. Gwilliam obtained a statement from Lynette Crimmins in the presence of, and witnessed by, Burton of Argyle on 15 July 1993. Gwilliam obtained further statements from Lynette Crimmins about an alleged false passport for Roddan on 29 July 1993 and in relation to an alleged insurance fraud over a motor vehicle claim as well as complaints concerning the conduct of Inspector Robbins. It became evident that Robbins entertained suspicions about the volume of allegations and details coming from Lynette Crimmins. He thought that she had a tendency to elaborate in order to cover any perceived gaps in a case which had previously been pointed out to her. All this shows a steadily diminishing degree of confidence by Robbins in the information and reliability of Lynette Crimmins.

434 The relationship between Robbins and Thoy at this stage of the investigation was also bad, with Thoy turning up unexpectedly to court hearings where he did not have any obvious or official role and demanding statements from Robbins. Robbins, at that stage, ignored Thoy.

435 On 22 December 1993, Lynette Crimmins was interviewed by Chief Superintendent Lippe, head of the IAU, as a result of allegations that Gwilliam was suspected of having made to the effect that Superintendent Kiernan was corrupt. Kiernan made an official complaint about this and wanted it dealt with and Lippe interviewed Lynette Crimmins in connection with it. The allegation was not established.

436 After Roddan's arrest, Lynette Crimmins was placed in the police witness protection programme, given a new identity and provided with accommodation and protection at a police safe house. Despite this, she began to behave inappropriately and to jeopardise her own security. She made an allegation against one of the police officers who was protecting her that he had attempted to sexually assault her. That matter was investigated but the allegation was not established.

437 It was very apparent that through the second half of 1993 and throughout much of 1994, Robbins progressively lost confidence in the reliability of Lynette Crimmins and became more and more concerned about the competence, objectivity and reliability of Gwilliam and Thoy. In his mind the whole investigation suffered from the presence and influence of Gwilliam and Thoy. In retrospect, he had no doubt that it would have been better to have had one single inquiry under the command of a senior officer to investigate, simultaneously, the allegations of corruption and of diamond theft. What he described as the obsession of Thoy and Gwilliam about widespread corruption, and their refusal to comply with directions to concentrate on their particular tasks, constituted serious and continual problems with the investigation. In evidence at the trial, former Assistant Commissioner (Crime) Ayton expressed substantially the same views.

438 There was a third AUSTPOLINV interview with Inspector Robbins on 25 March 1996. A variety of matters were canvassed relating to suspected corruption among senior police officers whom Robbins confirmed were targets of the IAU from time to time. However, Robbins also explained that after Barry Crimmins had been convicted and was serving a sentence of imprisonment, he complained about the behaviour of both Gwilliam and Thoy who visited him at the prison. Robbins' explanation of these events was that Gwilliam and Thoy believed that Barry Crimmins had stolen more diamonds than he had admitted and wanted to press him to admit to thefts of far greater extents. There were a number of unsatisfactory exchanges and Robbins explained to Gwilliam that there was no point in pursuing those allegations because, by then, Crimmins had already been sentenced and he remained ready and willing to give evidence at the pending trials against Roddan and Noye.

439 The fourth and final AUSTPOLINV interview with Inspector Robbins was conducted on 11 April 1996. In the course of this interview, Robbins was asked about the extent of investigations conducted into an allegation, said to have been made by Gwilliam, that an informant had said that Superintendent Kiernan had been paid a bribe of $40,000. Kiernan came to hear of the allegation and complained, demanding that superior officers conduct an investigation and discipline Gwilliam for making unwarranted accusations. Gwilliam was ordered to make a report and in the report said that the allegation had been made to him in the presence of Noye. The payment of the $40,000 was alleged to be for the return of the diamonds or for the writing-off of the inquiry.

440 Robbins had heard about the accusation but was not involved in its investigation. As far as he knew, Noye had always denied being present on any such occasion described by Gwilliam. Robbins went on to explain that, in his experience, Gwilliam repeatedly made claims of corruption, not only against Kiernan, but also against Superintendent Dalton and Deputy Commissioner Zanetti, but never came up with any evidence or other materials to support them. Robbins, went as far as ordering Gwilliam to produce evidence, transcripts, tapes or other materials which might support his allegations of corruption, but Gwilliam never did.

441 This interview also has a bearing on the institution of the disciplinary charges against Noye, of which Noye complains in this litigation. Although it was Inspector Barry Dawson of the IAU who actually formulated and laid those charges against Noye, it is clear that it was Inspector Robbins and his actions which prompted those charges. At Exhibit 128(4), 14TB 3599, Robbins explained that, according to standing police policy, whenever a police officer is charged with a criminal offence, he referred all the matters to the IAU. This ensured that the appropriate internal charges would be laid so as to form a basis upon which the Commissioner could take the administrative action which would lead to dismissal, a fine or some other alternative later on. It was not possible for Robbins to charge Noye with those complaints because they were the province of the IAU. However, there seems to be no doubt, and I find, that it was Robbins' actions which effectively initiated and caused those complaints.

442 The interview also touched on the circumstances which led to the closing down of the first Argyle diamond theft investigation and the removal of Thoy from the case. This was because someone had made allegations that Zanetti corruptly ordered the closing down of the inquiry. It emerged that that inquiry was closed down and that Thoy was removed and transferred to a uniform position - effectively a demotion. Further, it was Deputy Commissioner Zanetti, in effect, who had ordered that move. However, before doing so, he sought a confidential report from Superintendent Hancock concerning the suitability of Thoy to remain in the CIB. A pretty damning report was prepared and submitted by Hancock, as a result of which Thoy was moved out of the investigation. Therefore, despite an allegation from Lynette Crimmins that that had been done corruptly, there was no basis for any such view.

443 This completes the review of the AUSTPOLINV investigations conducted by the Australian Federal Police. It reveals a very troubled state of affairs and morale within the senior levels of the Police Force and among the staff of these investigations, from 1989 through to 1994 and beyond. It also reveals initial scepticism towards Thoy and Gwilliam because of their failure to make significant progress with the first investigation. It further reveals a high degree of impatience and criticism at their attempts to broaden the inquiry to include investigations at the WADT, and in Europe, and at their repeated unsubstantiated allegations of internal police corruption. It shows a very hostile attitude, bordering on insubordination, by Thoy and Gwilliam towards Superintendent Dalton and Superintendent Kiernan and a refusal by those two investigators to conform to the limits of their inquiry, which were being urged upon them by superior officers. It also shows that, even after the first stage in the investigation was closed down, Gwilliam and Thoy maintained continued close contact with Burton and Corfield of Argyle, and their undercover operatives, and assisted them in agitating for the reopening of the inquiry in late 1992. It further reveals that there was a degree of irritation and scepticism by some of the senior officers in the Police Force about the proposed reopening of the inquiry and a feeling of disapproval of the ability of Argyle to be able to influence, to such a degree, the nature and direction of police criminal investigations.

444 Nevertheless, the decision to reopen the inquiry and to conduct the second phase of the investigation was a genuine, conscientious step, which had the support of the Commissioner, Deputy Commissioner Zanetti and Assistant Commissioner (Crime) Ayton. The choice of Noye to head that second investigation was highly questionable because of genuine reservations held by Ayton and others about Noye's competence for such a task. At that stage there was no doubt or reservation about Noye's integrity, but at least two senior officers recommended against his appointment on the grounds that he was not competent for the task. However, the decision was taken by Zanetti to appoint him and he took the matter up.

445 Another controversial decision was that involving the appointment of Gwilliam as Noye's assistant. There can be no doubt that, because of his role in the prior investigation, Gwilliam was an obvious person to consider. However, he was difficult, he had this long-standing feud with Superintendent Dalton and he was committed to the view espoused by Thoy that there had been generalised corruption in the upper levels of the Police Force which had frustrated the first stage of the inquiry. He was not disposed to accept any other view and was very ready to assert that those who had a different view of the facts, or the investigation, than his own, were themselves actuated by corrupt motives. It was inevitable that he and Noye should fall out as they did. However, worse still, was that after that had happened, Gwilliam maintained his contact with the Argyle security representatives and was a voice in the background constantly asserting that the investigation was handicapped by corruption.

446 Thoy had been completely alienated by his removal from the first investigation and his demotion. Thereafter, he refused to co-operate with Noye in providing information during the second stage of the investigation. Even later, he refused to co-operate with Inspector Robbins when he was pursuing his investigations into internal corruption during the third stage.

447 If these difficulties were not bad enough, even greater problems arose when the third task force to investigate the thefts was set up, nominally, under the head of Inspector Lavender. Despite his best efforts, Inspector Lavender was unable to exercise any real control or influence over the course of the inquiry or the conduct of the investigating officers. They were acting, to a large measure, independently, in office premises at Bennett Street and Adelaide Terrace, supplied by Argyle Diamonds. They had staff and equipment provided by Argyle. Argyle's security officers, Burton and Corfield, were frequent visitors and had access to all aspects of the inquiry. The Argyle undercover operatives were also allowed access to the premises and to materials. Gwilliam arranged, apparently without the matter being questioned, for Thoy to assist in the third stage of the inquiry and Thoy was brought back into the matter. All the beliefs which he and Gwilliam entertained regarding widespread corruption at high levels within the Police Force again came to the fore.

448 This third task force, effectively run by Gwilliam, did not co-operate effectively with the IAU investigation conducted by Robbins. It maintained communication with Barry Crimmins and Lynette Crimmins, to an extent and with a frequency which cannot be fully determined on the evidence in this case, but it is clear that it must have been at a significant level and for a significant time. The strategy employed, obviously influenced to a significant degree by the Argyle security officers, was to induce one or both of the Crimmins to reveal the details of the diamond thefts and the international distribution of the gems in order to break open the case and provide a basis for charging Roddan. I am satisfied that a number of inducements, for lenient treatment and support and co-operation, were given to Lynette Crimmins and to Barry Crimmins in return for their co-operation and assistance in this regard. However, that these have not been fully disclosed.

449 It is also the case that the fundamental facts of the systematic theft of diamonds from Argyle by Barry Crimmins, his delivery and distribution of these to Roddan, and the involvement in the latter periods of Lynette Crimmins, were true. But there was much about Lynette Crimmins which indicated that she was an unreliable, vindictive and dishonest person who, in the past, and during the currency of the investigations into police corruption, did not hesitate to repeat, or to make, serious allegations of corruption by police officers, on nothing more than hearsay or because of personal animosity. Her series of allegations of improper conduct against Inspector Robbins himself, by failing to act on or investigate an allegation of assault which she made against Roddan, and in other respects, is conclusive demonstration of her vengeful and untruthful disposition.

450 To my mind, no responsible police officer or prosecutor should have accepted her uncorroborated evidence of corruption or any form of serious dishonesty against a person of standing, responsibility and prior good character. That does not mean to suggest that her allegations against Noye should not have been investigated. Obviously, they should have been, and they were. However, unless the investigation provided other evidence which would implicate Noye or corroborate, to a significant degree, the allegations of Lynette Crimmins, I do not consider that it would have been proper to rely on her evidence alone, either to lay charges or to continue with their prosecution.

451 Despite this, it is obvious that Lynette Crimmins' allegations were largely accepted by Gwilliam, Thoy, and the Argyle security officers, Corfield and Burton. To those persons, the allegations simply fitted very readily with a conception of events which they had already formed in their minds, but without clear evidence to support it. From then on, Crimmins was pressed to supply more and more information about alleged police corruption and did so regardless of its truth. I have no doubt that the Gwilliam/Thoy team, during the third phase of the investigation and in the subsequent prosecution, had convinced themselves of the existence of corruption on a widespread level, going far beyond the alleged involvement of Noye, and pressed that view at every opportunity, including in their communications with the officers of the DPP.

452 In the early stages, I am satisfied that the views propounded by Gwilliam and Thoy had a considerable influence. They were being presented at a time of public crisis over confidence in the police. Gwilliam's team did not scruple in leaking confidential information to the press and in encouraging media reportage suggesting that there was major corruption within the Police Force and that a senior police officer associated with the Argyle diamond inquiry would soon be arrested and charged. To say that this forced the hand of Inspector Robbins, or the recommendations which he received from the DPP, would be to go too far. However, during a period when cool, calm, anxious and objective analysis should have been given to the questions arising from the allegations made by Lynette Crimmins, in particularly those against Noye, the noise being created from the Gwilliam quarter was a serious distraction.

453 Over time this strident influence of Gwilliam and Thoy became increasingly recognised. A stage was reached where serious suspicions were aroused about the truth of the evidence given by Gwilliam on oath. Later, Gwilliam was charged with perjury arising from this incident. He was called to account by senior officers of the DPP's staff and they formed the view that his evidence, whether mistaken or not, was unsupportable. They doubted his competence and paid less and less attention to him. By then, however, the decision to lay charges against Noye had been taken and acted upon.

454 It therefore becomes important to identify what other evidence was available and considered leading up to the charges being laid against Noye on 11 November 1993.

Robbins' appreciations of the problems confronting the prosecution

455 Inspector Robbins gave a detailed account of the difficulties which he experienced in the course of the investigation and when assisting the DPP in the course of the prosecution. As time progressed, the level of confidence in the objectivity of Gwilliam steadily diminished. Even before the problems with the credibility of the evidence of Lynette Crimmins were appreciated, much attention was given to seeking information which might corroborate her evidence. His account of the way in which these problems were identified and addressed is set out in his supplementary statement (Exhibit 161), which I accept as a frank and reliable account of his approach to the investigation. In this he expressly recognises that Gwilliam had developed a bias against Noye and that there were many shortcomings in the credibility of Lynette Crimmins.

456 Robbins discussed these issues with officers of the DPP but came to believe that the confirmation of other allegations made by Lynette Crimmins (not against Noye, but against Roddan and involving third persons) provided an element of cogency to her evidence as a whole. I can understand how this interpretation could be reached, but it suffers from its own assumptions. There is the recognition that at least parts of Crimmins' evidence could not be safely acted upon in the absence of corroboration, so that only when corroboration is obtained could they be relied upon. However, what this process entails is a belief that it is the evidence of the corroborator which makes all the evidence of Crimmins credible. If corroboration was necessary for those separate allegations made by Crimmins, why is it any less necessary for other serious parts of the evidence which cannot be corroborated and which are denied? Nevertheless, I accept that this was the conscientious belief of Inspector Robbins at the time but, as I have said, having regard to the many deficiencies in the credibility of Lynette Crimmins, I do not consider that it suffices to make the uncorroborated portions of her testimony reliable to the extent required.

457 Inspector Robbins adds another dimension to the contention that the charge of perjury against Gwilliam, relating to his evidence concerning the D'Anna document, made Gwilliam's evidence unreliable. The details appear at pars 45 - 53 of Exhibit 161. Inspector Robbins there explains that the information available to him was that the D'Anna document was found in the possession of Roddan as a result of the execution of the search warrant; that it was found by Gwilliam; and, that the discovery was witnessed by another police officer, Detective Schubert. Robbins says that he was provided with statements from Schubert confirming the discovery of a copy of the D'Anna report among the Roddan papers. According to Robbins, the basis for the allegation of perjury against Gwilliam was not that he falsely stated that the D'Anna document was discovered among materials seized during the Roddan search, but that Gwilliam had given evidence of being present on the occasion, much earlier, when the original copy of the D'Anna document had been given to Noye by the AFP officers. This evidence confirmed that Noye had access to, and control over, the document. In reality, it transpired that Gwilliam could not have been present when the D'Anna document was given by the AFP to Noye because he, Gwilliam, was then away on leave. His testimony that he saw the delivery of the document to Noye must therefore have been false. The truth of this allegation against Gwilliam has, of course, never been established because the perjury charge was also dropped by the DPP, who filed a nolle prosequi in respect of it.

458 Robbins' position is that, whatever might be the truth or falsity of Gwilliam's evidence about how Noye came by the D'Anna report, Gwilliam always maintained, and Schubert confirmed, that a copy of the report was discovered in Roddan's possession as a result of the search.

459 With respect to the D'Anna report, Noye maintained, and in this he was not challenged, that he was never interviewed by Robbins, by any other IAU officer or, indeed, at all. Further, he maintained that he never had an opportunity to address that topic before he was charged. Noye's position in relation to this was that he accepted that he had been given the D'Anna report by the AFP. He said that it was kept securely on the police files relating to the investigation. He made the point that when he handed over all the Argyle investigation records to Inspector Watson in May 1993, he confirmed that the original of that report was still on the file.

460 The report, later said to have been found as a result of the search of Roddan's premises on the day of his arrest, was sent for detailed police forensic examination, but nothing was found. Noye makes the point that the original document, which was given to him by AFP officers, and which he examined, would be expected to show Noye's fingerprints and the fingerprints of an AFP officer, or officers. If it had been handled by Roddan, the presence of the fingerprints of Roddan would be expected as well. Fingerprints were reported on the document said to have been found in Roddan's possession but these did not match the fingerprints of either Roddan or Noye. This is very surprising.

461 Robbins also gave evidence that later, in the course of the case, Gwilliam gave evidence about the D'Anna document, said to have been discovered by him in the course of the search of Roddan's premises. Later, Robbins became concerned that Gwilliam may have given perjured evidence in that respect and Gwilliam was charged with perjury in that regard. This is a clear indication that by 1997, or thereabouts when that charge was laid, Robbins, and presumably the DPP staff, considered that there were serious reasons to doubt the reliability and objectivity of Gwilliam.

462 Robbins was cross-examined about the alleged discovery of the D'Anna report during the search at Roddan's premises. It was suggested to him that the document was not discovered while the search was being conducted at Roddan's premises, but was only alleged to have been found once the police officers were going through the materials back at the base, and that it was Gwilliam who made the alleged discovery. It was suggested that Gwilliam had an opportunity to plant the document among materials said to come from the search. Robbins was not able to answer or refute those suggestions because he had not been present at the search. Schubert was not called to give evidence.

463 On this same subject, Inspector Lavender confirmed that Gwilliam had been charged with perjury with respect to his evidence about the D'Anna report. In Lavender's words, Gwilliam "at times appeared over enthusiastic about his task".

464 What this reveals is that, despite the cloud cast over Gwilliam by the statements which he had provided about the delivery of the D'Anna document to Noye, Robbins nevertheless accepted his basic point that the D'Anna document had been discovered among Roddan's materials and that it could only have got there by improper disclosure from Noye. He also relied upon Schubert's statement for this conclusion.

465 However, if Gwilliam did give false evidence against Noye in relation to the circumstances in which the D'Anna document first came into Noye's possession, then this would reveal such a lack of scruple and such a vindictiveness towards Noye that any similar allegation which he made against Noye must be subject to the greatest reserve. The fact that Schubert provided a statement which corroborated Gwilliam's basic assertion, may have been sufficient for Robbins to have believed Gwilliam's allegation, at least until the depth of his hostility towards Noye was realised. But as there has been no evidence from Schubert in this trial, and because the DPP realised that Gwilliam was unreliable for a series of reasons, including this one, Gwilliam's conspicuous hostility and recognised prejudice towards Noye should have been more than sufficient to have caused an objective observer to refuse to act on Gwilliam's unsupported allegations.

466 Counsel for Inspector Robbins has maintained another submission; namely, that the plaintiff's action is not maintainable, either against Inspector Robbins or against Lynette Crimmins, insofar as it relates to the use or reliance of statements made by Lynette Crimmins, because of the rule in Cabassi v Vila (1940) 64 CLR 130. That principle can best be identified from the following passages in the judgments in that case:

"No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.

Actions against witnesses for defamation have failed and so have actions analogous to actions for malicious prosecution ...

... [b]ut it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injury to another; the rule of law is that no action lies against witnesses in respect of evidence prepared ... given, adduced or procured by them in the course of legal proceedings." (Per Starke J at 140 - 141.) [citations omitted].

The rule in Cabassi v Vila (supra) is of long authority and has recently been confirmed in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [39], [99]; [2005] HCA 12; (2005) 223 CLR 1 at 18 - 19, 35 - 36; and was earlier applied in Cumberland v Clark (1996) 39 NSWLR 514 at 529. Reliance upon this rule is invoked on the grounds that the information provided by Lynette Crimmins to Inspector Robbins and others was for use in legal proceedings and, ultimately, was largely used when she was called and gave evidence against Roddan at his trial. There is no reason to dispute or qualify the existence of the rule, but it does not appear to have any application in the present case. Lynette Crimmins gave evidence at the committal proceedings against Noye, but it is not that evidence which is being relied upon by the plaintiff in these proceedings. It is her original allegations to the police, supplemented by subsequent statements taken on other occasions, before her formal deposition or statement for use at the committal proceedings, or at the Roddan trial, were obtained.

467 I am not persuaded that the decision of Cabassi v Vila (supra), which is, of course, binding upon me, in any way inhibits the plaintiff's cause of action or the use of evidence which has been tendered at this trial. Furthermore, Noye was not put on trial for these offences and, committal proceedings aside, there is no basis for suggesting that the plaintiff is attempting to circumvent the rule that no civil action may be taken against a witness who gives perjured evidence or against a person who suborns a witness' perjury.

468 It was never pleaded against Inspector Robbins that he collaborated with Lynette Crimmins to fabricate evidence or that he coerced and induced Lynette Crimmins to fabricate evidence. There were some suggestions, in the course of the submissions, along those lines but they are outside the pleadings and, in any event, have no support.

469 My impression of Superintendent Robbins, when giving evidence, was favourable. Considering the task which he was appointed to perform; namely, the investigation of the alleged high-level police corruption, with allegations coming from a person of such dubious credibility as Lynette Crimmins, and involving Roddan whose general activities were extremely suspicious, it is clear that he was faced with a task of extreme difficulty and delicacy. My overall impression is that he undertook his investigations with considerable thoroughness, fairness and ability, but that he was severely handicapped by the conduct and the allegations of Gwilliam and Thoy who were relentless in maintaining the generalised allegations of widespread corruption at high levels within the Police Force. Those two refused to co-operate or follow directions and, I am satisfied, leaked a great deal of information to Corfield, Burton, and others at Argyle, to Lynette Crimmins and, at later stages, to the press. These leaks were not indiscriminate, for they disclose a pattern of behaviour with a distinct purpose in view. This activity was to disseminate grounds for suspicion against Noye and against other more senior officers, suggesting that widespread police corruption was involved. They were plainly done in order to exert moral pressure so that the police hierarchy and, in particular, the IAU investigators, laid charges of corrupt activity against one or more of the persons being named.

470 This constant maintenance of allegations of corruption coming from Gwilliam and Thoy extended to their dealings with officers of the DPP. It was not matched until much later, by information from Robbins and others which cast doubt on the reliability and the objectivity of Gwilliam. From my assessment of Superintendent Robbins during a lengthy period when giving evidence and being cross-examined, I formed the impression that he was a very honest, reliable and dedicated officer, who clearly possessed a broad perspective of the difficulties of the situation and a realisation of the shortcomings of the procedures which the police had followed.

471 One of the most impressive features of Superintendent Robbins' evidence was the extent to which he unflinchingly acknowledged the serious problems in the service, which he had been trying to address. He was quite frank in this respect and, without indulging in gratuitous or unnecessary criticism, described, in my view honestly, the problems which he experienced with Gwilliam and Thoy and with the Argyle security staff. He acknowledged that Gwilliam and Thoy had a close relationship with Corfield and Burton and that they had "distinct views about high-level corruption" in the Police Force. He mentioned that Gwilliam went as far as accusing himself and Mr Tannin SC of the office of the DPP, of being corrupt. It was obvious to Robbins that they were giving a large amount of information arising from their investigation to Lynette Crimmins because she was telephoning Robbins and discussing things which she had learned from others. He was of the view that the whole diamond investigation team under Gwilliam was operating in close connection with the Argyle security staff. He observed that there was distrust festering between Thoy and Gwilliam, on the one hand, and upper echelons of the Police Force, on the other.

472 By May 1993, Robbins recognised that Gwilliam and Thoy were becoming a problem. They were not being objective and they were running their own agenda in the investigation. Gwilliam had a great animosity towards Superintendent Dalton, which went back to past events in their police careers when, in a completely different operation, Dalton had Gwilliam arrested and charged for some alleged criminal offence of which he was ultimately acquitted. It was, of course, Superintendent Dalton who had ordered Thoy to write-off the first Argyle inquiry.

473 Robbins maintained, despite repeated challenges to the contrary in cross-examination, that he had never promised or offered Lynette Crimmins immunity from prosecution. However, by October 1993, she was definitely seeking immunity. Consequently, he conducted the interview with her on 7 October 1993 (Exhibits 28 and 29) in order to have her statement put before the DPP to decide whether or not the DPP would grant any form of immunity. It is obvious, from the WAPOLINV investigations, that Lynette Crimmins later complained against Robbins, alleging that he had promised her immunity and by doing so tricked her. He denied this and I accept his denials. Robbins' account is confirmed by the transcript of the interviews where the consequences of her making self-incriminating statements were directly addressed. However, the incentive for Lynette Crimmins to seek lenient or preferential treatment for herself was obviously very great, having regard to her circumstances. Her readiness to incriminate Roddan certainly did result in her receiving a considerable measure of leniency. It would be naive to believe that her disclosure of information about alleged police corruption, not merely by Noye, but by others, was not also expected to secure for her favourable treatment.

474 Equally, Robbins said that in the latter part of 1993, when there was a spate of articles in The Sunday Times newspaper written by the reporter Martin Saxon about the Argyle diamond thefts and the police investigation, it was obvious that some police officer was providing Saxon with information, and that this was not helpful to the inquiry, nor fair to Noye. Again, the probabilities are overwhelming that this conduit from the police to the press had its source in the Gwilliam investigation team. Robbins also said that he had concerns about Gwilliam on a number of issues; namely, Gwilliam's failure to be frank with him; Gwilliam's tendency to become distracted; the extent to which Gwilliam was dealing with Lynette Crimmins; and, the amount of information which was being leaked and which was getting back to Lynette Crimmins. Also, as previously stated, Robbins was very concerned about the extent to which Burton, Corfield and their undercover agents were permitted access to, and involvement with, the police computer database, and other records and personnel of the Gwilliam task force.

475 I can well understand how an investigating police officer, such as Inspector Robbins, or, for that matter, legal practitioners at the DPP who were being provided with information from police officers on the special investigation team, (of whom there was not, at that date, reason to suspect their honesty, objectivity or reliability), might think that in this mass of detail, coming from many sources, there was a network of interconnecting strands and a reinforcement of inferences of improper conduct, which supported the specific allegations made by Lynette Crimmins and by Gwilliam. But, in the end, once the evidence is stripped down to its essential detail and sources, the case for corrupt activity by Noye, as distinct from a case of serious, but nevertheless innocent, misjudgement, depends on the specific allegations or admissions of corrupt conduct and of the receipt of corrupt payments by Noye, as advanced by Lynette Crimmins, and in relation to the improper disclosure of confidential police information, as advanced by Gwilliam.

476 The strength of these serious allegations of dishonesty against a senior and long-serving police officer, who always denied them, and who was never found to have accepted money or to be living beyond his means, depended essentially upon the credit of a known liar and participant in the diamond stealing, Lynette Crimmins, and, to a lesser extent, upon the overzealous and prejudiced Sergeant Gwilliam, who could not be swayed from his belief that there was widespread serious corruption within the police hierarchy dating from the inquiry which he began in 1989. Perhaps it was the enormity of the accusations which were made, and the extent to which they took hold within the Police Force and in the public mind, which resulted in it taking so long for the extreme fragility of the prosecution case to be properly appreciated and acted upon. In large measure, that appears to have been due to the fact that there was, as it emerged, a very serious and lengthy pattern of diamond thefts from the Argyle mine, actually conducted by Roddan and Barry Crimmins, and involving very large financial rewards, at least for Roddan. The fact that it went undetected for so long was an acute embarrassment to the Police Force and a serious reflection upon the inadequate supervision and management of the first and second stages of the inquiry.

477 In retrospect, one can readily appreciate why Argyle was so dissatisfied with the degree of police commitment to the investigation and so suspicious of what, to them, was the incomprehensible decision to close down the first stage of the inquiry and, then, with the decision of the officer in charge of the second phase of the investigation to recommend that it be concluded without any charges being laid. It was, in reality, a case where the police criminal investigation resources were put to the test and twice failed. It took a tempestuous break-up between Roddan and Lynette Crimmins, which filled the latter with animosity towards Roddan, to lead to her telling all, and a lot more, to the police and resulting in the eventual breakthrough.

478 The inadequacy and poor management of the first two phases of the investigation were so gross that it was both more palatable and credible for the authorities to conclude that there must have been corruption involved. However, if the Noye phase of the investigation was written-off because of his corruption, why, when the question is asked, should not a similar conclusion be drawn to attribute the closing down of the first stage of the investigation? Conversely, if such a gross mistake could be made, without corruption by senior officers, to close down the first phase of the investigation, in the face of strong protests by the officer in charge of it, why should one be more ready to accept that Noye's recommendations against laying charges were due to his corrupt motives, rather than misjudgement or ineptitude?

479 The answer to those questions is that, in relation to the second stage of the inquiry, there are the allegations of Lynette Crimmins and, to a lesser extent, Gwilliam. Standing back, that is the only real difference and such an appreciation demonstrates just how vital the credibility of both Lynette Crimmins and Gwilliam was to the prosecution case and, of those two, how the strength of the case depended far more on the credibility of Lynette Crimmins. How it could have been thought that such an important case could succeed on such a weak footing is now, clearly, a matter of concern. However, such an impression is inevitably formed with the benefit of hindsight, where the stresses, anxieties and sense of necessity to take fearless action to correct a damaging perception of corruption, which perhaps gave greater credibility to the case than it really deserved, are absent. That is one of the pernicious consequences of suspected corruption, lack of trust, mutual suspicion and low morale within any organisation. However, those are features which, unfortunately, existed at the time and which caused damage, including conscientious errors of judgment.

The outcome of the police disciplinary proceedings

480 The police disciplinary charges which were laid against Noye in November 1993 (Exhibit 6, 10TB 2260) have already been described. Noye says, and he was not challenged in this respect, that in relation to some of those charges, he was never interviewed about them before they were laid and, therefore, was given no opportunity to answer or explain the allegations.

481 From 12 October 1998 Noye was booked off duty because of stress, having produced medical reports from Dr Harvey Sacks to that effect. The medical investigation of his condition led to a referral to a psychiatrist, Dr Dennis Tannenbaum, who, on 2 November 1998, certified that Noye was unfit for duty. This led to further medical investigations and on 5 August 1999 Noye was given notice that the Commissioner intended to remove him from the Force on medical grounds (Exhibit 49, 13TB 3232). Further notices then followed dealing with his proposed medical retirement (Exhibits 50 and 51). On 23 September 1999 Noye accepted retirement on medical grounds (Exhibit 52), 13TB 3238). Shortly before that retirement, the four disciplinary charges which had been pending since November 1993 were all withdrawn by Assistant Commissioner MacKaay. There had been no determination, nor any hearing of those charges (except for an initial plea of not guilty on 7 December 1993 when the Commissioner of Police adjourned them all until the criminal charges had been concluded).

482 With Noye's removal from the Police Force, the charges, of course, could not continue and, therefore, this withdrawal means that the charges were never established against him. Subject to other questions over whether or not an action for damages for malicious prosecution would lie in respect of such charges (discussed below), I am satisfied that this result means that the charges were, from Noye's viewpoint, resolved favourably, insofar as it was possible for him to secure any such resolution.

483 The circumstances of the interview of Barry Crimmins at the Sherbourne Hotel, Shepparton, on 7 April 1993 by Inspector Robbins have already been described. The two transcripts of the tape of interview are Exhibits 113 and 114, 6TB 1480 - 1506.

484 In that statement, Barry Crimmins confirms that, before his visit to Shepparton, Noye had telephoned him in Shepparton and spoken to him about the inquiry twice. These calls were made in early 1993. Then, a week or so before the visit on 19 November 1992, Noye rang Crimmins to say that Noye would be visiting relatives in Euroa, a town near Shepparton, and would like to call and visit him. They agreed to meet.

485 The visit took place at the Sherbourne Hotel. Crimmins was obviously suspicious that Noye was angling for information which might incriminate him in the alleged diamond thefts. The local Magistrate, Mr Cosgriff, was one of the group of men with Crimmins at the time of the visit. Crimmins was guarded with Noye and did not give anything away. He said: "As far as I was concerned he was a copper, he was investigating the thing - and - that was it" and, later, that "whichever way he was going about it - as far as I was concerned he was straight down the line". Crimmins intimated that he was suspicious that Noye might have been fishing, for his own advantage, because of things that he had been told by Lynette Crimmins, but that there was no indication of that during his meeting. Barry Crimmins is not recorded as describing, in that interview to Inspector Robbins, the fact that Noye stayed on at his house overnight during the September 1992 visit. Apart from confirming the fact that Noye did visit him and spoke elliptically about the Argyle investigation, there is nothing in Crimmins' statement to Robbins which could be regarded as evidence tending to incriminate Noye.

486 Barry Crimmins' second statement to Robbins and Gwilliam at Kununurra on 29 August 1993 has also been examined earlier in these reasons (Exhibit 26, 7TB 1653 - 1731). By far the greater part of that statement involved questioning by Gwilliam about the diamond thefts and the distribution of diamonds to Roddan. However, towards the end of the interview (7TB 1720 - 1729) attention was directed to Noye's conduct. On this occasion Barry Crimmins said that when Noye phoned to say that he was about to come and visit him in Shepparton, he thought that he should telephone his former wife Lynette to enquire as to what had prompted this. On hearing of the visit, she said that she would see what she could find out and let him know. A day or so later he was telephoned by Roddan and, on asking about the purpose of the Noye visit, Roddan said that they, meaning the police, had nothing on him because "he's got Noye tucked up in his back pocket and that it cost him a lot of money and that as things stand at the moment Noye just wants to know whether you're going keep your mouth shut". Barry Crimmins pressed Roddan, asking what did Noye have on him that he wanted to put to him. In reply, Roddan said that he had nothing on Crimmins and that all that Noye wanted before he would write the inquiry off was that Crimmins would confirm that he would keep his mouth shut.

487 Crimmins then went on to describe his meeting with Noye at Shepparton and how Noye went on for hours going into every reason why there was no connection between Roddan and Crimmins and telling him that nothing was going to happen. Barry Crimmins thought this was strange behaviour, but said nothing about it because it fitted in with what he had been told to expect by Roddan. Noye did not ask for a formal police interview. Crimmins then went on to explain how he offered Noye a bed for the night and that they just spoke about other inconsequential matters. However, in the course of conversation, Noye said to Barry Crimmins: "There's been a lot of money spent on this investigation and it's got people nowhere.". He also said: "There's been a lot of money thrown around to make sure that you're not involved in this sort of situation". Without Noye adding anything, Barry Crimmins presumed, as a result of his previous telephone call with Roddan, that Noye had been paid off. Crimmins also said that Roddan told him that Roddan was paying for the fare, or arranging for the payments of Noye's holiday to Victoria (Exhibit 26, 7TB 1723).

488 Barry Crimmins then explained how he had been told by Lynette Crimmins, previously during the Thoy phase of the investigation, that Roddan had been to a police Christmas break-up and said that he had a couple of policemen on the payroll, "tucked up in his back pocket". Lynette Crimmins said that Roddan was very well connected with the Police Force and was going to have Thoy set-up by having money planted on him. Barry Crimmins also said that during his telephone conversation with Roddan, shortly before the Noye visit, Roddan had said something to the effect that he had had Thoy "busted". When he enquired about it, Roddan said that he had had him "fixed up so that he has got nothing at all to do with it" and that: "It's costing me a lot of money to put this fellow in my back pocket too, so I just want to make sure that the job's right and he wants to make sure that the job's right, so I'm paying for a little holiday for him to come over and see you." (7TB 1724 - 1725.)

489 At the time, Barry Crimmins was inclined to believe that Roddan was exaggerating and giving him a story designed to inflate his own influence. However, he said that now, in August 1993, in light of the subsequent police investigation, he had come to believe that Roddan was paying off the police. Of course, this information came from Roddan and was not evidence against Noye, but Crimmins went on to say that during Noye's meeting with him at Shepparton Noye had elaborately explained why there was no case and that the investigation had revealed that the Newton diamonds could not be identified as being Argyle diamonds because tests indicated the stones could have come from somewhere else. Noye also told him that there was no connection between Roddan and Barry Crimmins, apart from their previous association as dog owners and the fact that Roddan was having an affair with Lynette Crimmins.

490 The conversation between Noye and Barry Crimmins included reference to Roddan having obtained hydrofluoric acid from Gardner, and having burned himself with the acid, but that the acid had been obtained to treat gold. They had also discussed the position of Charles Devenish, and how there had been a big falling out between Devenish and Roddan. According to Barry Crimmins, Noye "was just completely blowing every aspect of it out. He went basically step by step through the whole case in the whole investigation ... " (7TB 1729), leading to his conclusion that he should end the investigation.

491 To the extent that the statement from Barry Crimmins contained evidence directly incriminating Noye, it was obvious that it was confined to the details of Noye's incongruous behaviour when visiting Shepparton. A visit ostensibly aimed at investigating a diamond theft but, instead, going into great degrees of detail, including the disclosure of information, about why there was no case against Crimmins. Obviously, that conduct was far more sinister in the light of the assertions of Roddan and, if a case could be made that Roddan was a co-conspirator in this attempt to pervert the police investigation, evidence of Noye's conversation alone with Barry Crimmins would be admissible against any or all co-conspirators.

492 Another version of that interview is Exhibit 110 (5STB), but there does not appear to be any material differences in the relevant parts of this other transcript. Noye, himself, had arranged for another transcript of that same interview to be prepared from the audio tapes. This became Exhibit 116 (8TB 1732 - 1833) and copies of the actual tapes of the interview are in evidence as Exhibit 116A. Nothing turns on any differences in these four records of that interview.

493 One matter which did emerge in the conversation between Barry Crimmins and Noye at Shepparton was that once the investigation was over and written-off, he, Barry Crimmins, would get his job back with Argyle, that Roddan would get the diamonds back and that Roddan would sue Argyle.

494 Later, on 7 October 1993, Barry Crimmins gave a formal deposition to Inspector Robbins about his involvement in these events. This is Exhibit 30 (9TB 2176 - 2200). In this document, Barry Crimmins gives a detailed account of his involvement with Roddan and the development and progress of the arrangements to steal diamonds from Argyle. At pages 19 - 23 of that deposition, Barry Crimmins turns to the visit by Noye to Shepparton and explains how, before Noye arrived, he had a telephone conversation with Lynette Crimmins which resulted in Roddan telephoning him to say words to the effect that Roddan had paid Noye off and that Noye was only coming to Victoria to make sure that he, Barry Crimmins, kept his mouth shut. He then went on to narrate the details of the interview at the Sherbourne Hotel. He said that all Noye did all evening at the hotel was to tell him how he was not involved in any offence for various reasons. This made Barry Crimmins suspicious because he could not believe that Noye could be so stupid. He therefore concluded that Roddan's statement about bribing Noye was true. In this statement, Barry Crimmins repeated the conversation at his house on the evening of the Shepparton visit when Noye said to him: "A lot of money has been spent on this case and yet it has got nowhere"; and then, later, words to the effect that he was receiving money to ensure the matter would not go any further. Barry Crimmins took that to mean that Noye had been paid money from Roddan in light of the earlier phone conversations.

495 In a revised deposition of 31 October 1993 (Exhibit 31, 9TB 2201 - 2226), Barry Crimmins gave more detail of the conversation with Noye which has just been mentioned, saying that Noye said: "A lot of money had been spent to make sure no one gets charged over this case"; and that Noye also said: "We will all do all right out of it and you will even get your job back at Argyle". In that second deposition he added that he did not confess anything to Noye but just kept quiet and hoped for the best.

496 It was, of course, statements made by Lynette Crimmins at the Warwick Police Station lock-up about police corruption and Roddan's involvement in the Argyle diamond thefts which led to the first real break in the case. The police sergeant at Warwick reported on her allegations to Inspector Robbins who then visited her at her home in company with Inspector Syme on the morning of 20 January 1993. They found her distressed and upset and spent most of the time attempting to reassure her, before inviting her to attend the police station for a detailed interview. That interview, in the presence of her solicitor, Mr John Redman, occurred on the afternoon of 20 January 1993 and was conducted by Inspector Robbins and Inspector Syme. It was transcribed and the transcript is Exhibit 109 (5STB, 1163 - 1196). It began with an intimation by Inspector Syme that the police had received information indicating that she knew of matters concerning payments by Lindsay Roddan to serving members of the Police Force. He requested details under an assurance that nothing which Lynette Crimmins said would be used in evidence against herself.

497 Lynette Crimmins said that she had been told by Roddan that money had been paid to police officers but that she had not been told to whom the payments had been made. The amount in question was said to be $5000 and paid about 12 months before Thoy was moved out of the investigation. The source of her information was Roddan. She also confirmed that she had heard Roddan mention a police officer named "Max" from time to time in the past.

498 The interview then turned to the origin of her acquaintance with Roddan and his contact with Barry Crimmins and how she confronted her husband with the fact that their son had found rough diamonds in a drawer by his father's bedside, at a time when Barry Crimmins was unaccountably using unexpectedly large amounts of cash. She then described how her husband admitted to her that he was taking diamonds from the mine and giving them to Roddan, who was disposing of them, and that this was happening on a regular basis. She described an incident when Roddan gave her a large diamond ring on her birthday in 1989, saying that it was thanks to Barry Crimmins, and how, as a result, Barry received $10,000 in cash. She explained that Roddan had explained the system for distribution of the diamonds to her. That Roddan would give the diamonds to air hostesses, who would smuggle them out of the country to Horovitz in Switzerland, who would in return send Roddan, on consignment, parcels of cut and rough diamonds.

499 She described a robbery at her home in Lincoln Street, Highgate, and remarked on it being peculiar because the normal uniformed police came when called and then Noye and Gwilliam came (5STB 1176). She then went through details of large amounts of money which she had paid Roddan over time, including recently. She described how, over time, she had paid more than $100,000 to Roddan at his insistence, on various pretexts, often for what he claimed were his legal costs. In the midst of this questioning she said that she was scared, apparently because of Roddan. She also said that Noye had spoken to her on the phone that day and said: "You've just blown yourself out. No-one's going to believe you ... you've f----d yourself" (5STB 1183). She then said: "It leaves me in an awkward position", (because as Noye had said) "Who's going to believe a suicidal prostitute ... ".

500 The police officers then asked her again about the reference by Roddan to a policeman named "Max", and she said that his name had come up about six times. The questioning continued and she asked for the recorder to be switched off. About a minute later the record resumed.

501 Lynette Crimmins then explained that she had lent her mobile phone to Roddan and that he had used it and frequently made calls to Switzerland. The mobile was in the possession of her girlfriend and she offered to obtain it for the police. She revealed that she had been in communication with the Police Vice Squad at the recommendation of Noye and that Noye had told her that she should contact them in order to be "registered".

502 She then explained that she told Noye by telephone on the Monday night (19 January 1993) that Barry Crimmins and Lindsay Roddan had been stealing diamonds from Argyle. She confirmed that she had never told Noye this before, but had met him for coffee from time to time because Roddan had always told her to see what she could find out. After her various meetings with Noye she would give an account of the meeting to Roddan. Roddan also met Noye regularly and she had been with them a couple of times when they had met for coffee. She described the frequency of her meetings with Noye as at least monthly over the preceding 12 months. She denied that Noye had ever attempted to make any form of sexual approach to her and said that he was not aware that she had been working as a prostitute until the morning of the interview. (It must have been then that Noye told her to make contact with the Vice Squad.)

503 Lynette Crimmins then told the police that Noye had gone over to Melbourne just a couple of weeks before and had spent the night with Barry Crimmins. She said that both Roddan and Barry Crimmins had told her that independently. She also said that she had spoken to Noye on Monday night about him staying at Barry Crimmins' place and that he agreed that he had and spoke inconsequentially about the details. According to her, that was the first occasion that Noye had ever met Barry Crimmins, although he had spoken to him by phone several times before. After his return from Victoria, Noye met with Lynette Crimmins one day at a café in Northbridge. In the course of conversation, he said to her that "Barry's clean" and that Noye had put in a recommendation that he be reinstated at Argyle and that, having spoken to Barry Crimmins, Noye realised there was no case.

504 She went on to describe that when she told Noye that Roddan and Barry Crimmins had been stealing the diamonds all along, he got angry and abused her. She was clearly apprehensive for her own safety and was promised protection by the police officers.

505 At a further stage in this interview (Exhibit 110, 5STB 1197) she told the police that Lindsay Roddan had indicated to her that, at the end of the day, "when the fat lady sings" her repayment would be $200,000 in return for the various moneys which she had given to him for solicitor's costs, and that Jeff Noye was to get $200,000. She said that she told Noye this on the Monday night, whereupon he got angry, denied the accusation and said that he would "get Roddan" and would reopen the case the next morning. She went on to say that when it was over, Barry Crimmins would be well looked after and reinstated at Argyle.

506 During the WAPOLINV interviews with Robbins, Robbins was asked by the investigating officers whether Lynette Crimmins' allegations of assault against Roddan were pursued actively and why that complaint came to be dropped. Inspector Robbins had told the investigating officers that he had pressed Lynette Crimmins to take action for assault and had referred her to an experienced officer whom he believed would be assiduous in taking action. He had contacted the officer, Sergeant Walker of Inglewood, to alert him to a call from Lynette Crimmins.

507 The next written statement, in chronological order, from Lynette Crimmins in evidence in this case is Exhibit 174 (18TB 4538), which is a statement by her on 4 March 1993, witnessed by Detective Sergeant Walker. This confirms that on 17 February 1993 she made a report of having been assaulted on 19 January 1993 by Roddan, but that she had since thought about her complaint and did not wish to go any further with police action. She recorded her thanks for police attention and asked that the matter be dropped.

508 Exhibit 175 (18TB 4553) is a manuscript note from Lynette Crimmins to Lindsay Roddan of 14 May 1993, asking for repayment of some of her money. She says that it will cost at least $2000 for hospital and related treatment. She says why should she go without: "Teddy can finance you to repay me". This was put to Lynette Crimmins in cross-examination and it reveals that, even after she had informed the police of his involvement in the Argyle diamond theft and the alleged conspiracy to pervert the course of the police investigation, she was still seeking money from him, presumably for medical treatment, suggesting that Horovitz could provide him with funds.

509 Sergeant Gwilliam obtained a long handwritten statement from Lynette Crimmins on 15 July 1993. This is Exhibit 24 (7TB 1551 - 1631) and was witnessed by Burton, the security officer from Argyle. I take this to be one of the Gwilliam statements shown to Robbins during the course of the WAPOLINV investigations, because Robbins had then said that he had not seen it before and disapproved of Burton participating in a police interview with Gwilliam into such a matter. It is probable, and I find, that this statement was not available to Robbins or to other IAU staff at any time before Noye was charged. The probabilities are that it was kept by the Gwilliam task force and used in connection with the investigation of the diamond stealing. Whether that is so or not, it certainly explains, to some extent, why Gwilliam and Argyle were so suspicious of the senior levels of the Police Force, arising from the closing down of the Thoy inquiry, and why Gwilliam was so convinced of corruption by Noye and others during the later part of 1993 and following.

510 The statement contains a long and elaborate history of all prior contacts between Barry and Lynette Crimmins, on the one hand, and Roddan and his former de facto, on the other; it describes the move by the Crimmins to Perth; Barry Crimmins' engagement as a security officer at Argyle; approaches from Roddan to Barry Crimmins to get diamonds; and, the unexpected display by Barry Crimmins of large amounts of cash in 1988. It then goes on to describe how Lynette Crimmins discovered Barry Crimmins in possession of a large number of diamonds in the bathroom of their Perth home and how he then admitted stealing the diamonds from Argyle and delivering them to Roddan. From then on, Lynette Crimmins became engaged in delivering the diamonds to Roddan and to others. She gives a long account of her role in selling diamonds on behalf of Roddan to various people throughout the Perth metropolitan area and during visits to Melbourne and Sydney. The dealings were considerable and many tens of thousands of dollars were paid in cash for the diamonds by the various recipients. Roddan was behind in paying Barry Crimmins for the diamonds supplied and, over time, this became a bone of contention between them. According to Lynette Crimmins, this pattern of stealing and selling stolen gems continued for quite some time, even after the discovery by Corfield, and then by the police, of the suspect diamonds at Newton's premises in Fremantle - and, indeed, during and after the first police investigation into the source of those diamonds.

511 Crimmins claimed that Roddan also had sources of diamonds, other than from Barry Crimmins, flown in from a person or persons at Argyle; although the implication seems to be that only very few diamonds came from these other sources.

512 Lynette Crimmins asserted that after she had moved to Lincoln Street, Highgate (some time in 1991), Roddan had told her that "he had to burn a cop because they were getting too close and would get Barry and if Barry went down we'd all go down" (Exhibit 24, 7TB 1601). She said that Roddan identified the policeman as Thoy and that he was threatening to burn down a property which Thoy owned and had also made arrangements with other policemen to set Thoy up. Roddan told her that he thought Thoy would be kicked off the Police Force and, that for this to happen, it would cost $10,000. According to her, Roddan was talking about "Uncle Max". Lynette Crimmins said that she borrowed money on Roddan's behalf, which was to be used to pay the corrupt police to "burn" Thoy. She went on to say that, later, Roddan told her that he had paid half the money and was waiting for Thoy to be kicked out of the Police Force. She said he became furious when he found out that he had not been forced out but had only been demoted and put in uniform. Further details were given of how the money was collected to pay Roddan to achieve this apparent purpose, but she had no details of what Roddan actually did or whether he in fact paid any money and, if so, to whom.

513 Lynette Crimmins went on to describe that in March 1992 a second police inquiry was started but, before it got under way, she saw Roddan at the L'Alba Café in Northbridge speaking to a man whom she later discovered was Noye, and whom Roddan identified as the person who was going to be the head of the new police inquiry. She saw him with Roddan a second time a week or so later, again at the L'Alba Café, and several times later at the Gioia Café. Roddan told her that Noye was "on side, and that everything was going to be written-off and that Noye was to get $200,000, she would get $200,000, Barry Crimmins was to get $200,000". She says that she personally asked Noye why he was getting the same amount that she was when she had invested so much of her own money, and that he replied: "It's who you know, isn't it mate?", in a laughing manner. According to her, Noye also said that he would have first pick of the stones in police custody once they were returned to Roddan. She also said that, during the course of the investigation, Noye wrote out a statement for her giving details of the association between herself, Barry Crimmins and Roddan, saying that this was confined to their association with the German shepherd dogs and that she knew nothing about any stolen diamonds.

514 This statement (Exhibit 24) then went on to discuss, in much detail, the break-in and robbery at Lynette Crimmins' home in Lincoln Street, Highgate, in August 1992, and how, after Roddan had come to the scene, he suggested that she should ring Noye and that Noye, indeed, arrived later and prepared an inventory of all items said to have been stolen. He prepared a list of stolen goods, sent it to her for signature and, when she queried the possibility that she might get into trouble from making a "dodgy claim", said that she should not worry about it and that he would look after everything. She then described, in detail which need not be recounted here, how the claim was accepted and how, instead of obtaining replacement items, she managed, with Noye's help, to be paid $15,000 in cash on the claim, of which Noye took $1000 in order to finance his trip to Victoria to visit Shepparton, see Barry Crimmins and make sure that he kept his mouth shut. The statement goes on to describe how, as a result of pressure from Roddan, she was forced into prostitution. Her statement in evidence has the remaining 12 or so pages blanked out.

515 There is no direct evidence about the circumstances under which, or the purposes for which, this statement was obtained from Lynette Crimmins. The suggested irregularity of it being taken in the presence of Burton has already been noted. For present purposes, the chief significance of the statement is the effect, if any, it may have when it comes to assessing the credibility of Lynette Crimmins, because there are variations between the details of the allegations which it contains against Noye, and other allegations which she has made in other statements and in evidence, although the basic thrust of the statements - that Noye was corruptly involved with Roddan - remains. However, another effect of the statement is that it casts light upon the information available to the Gwilliam task force which, if Gwilliam and his team believed were true, would serve to explain some of the evident hostility by Gwilliam towards Noye and Gwilliam's mistrust of senior officers within the Police Force, particularly those involved in closing down the Thoy inquiry.

516 Of greater significance is the statement made by Lynette Crimmins to Inspector Robbins on 7 October 1993 which was recorded and then transcribed. Several versions of the transcription are in evidence (Exhibit 28, 9TB 2036; Exhibit 29, 9TB 2102 - 2175; and Exhibit 24, 7TB 1551 - 1631). The different formats of the several transcriptions are explained by the fact that the tape recordings were, at different times, transcribed by different persons and for different purposes. Although it is possible that there are some variations in the three sets of transcriptions, including differences in parts omitted, by the end of the trial it was not suggested by any of the parties that there were any differences between the three versions that were material for the purposes of this litigation.

517 The interview takes place in the presence of Lynette Crimmins' solicitor, Mr Redman, although he makes no contribution to the discussion. It begins by Inspector Robbins confirming that over the preceding months he had had many discussions with Lynette Crimmins as a result of information which she had provided concerning the conduct of Sergeant Noye. In the process she had said much which incriminated herself, albeit under circumstances where she had been given assurances that none of the statements which she had made to Inspector Robbins would be used in evidence against her. Robbins goes on to explain that, by this stage - October 1993 - a formal assurance had been given by the State DPP, and disclosed to Lynette Crimmins and her solicitor, that if she were to make a full and complete statement outlining completely her involvement in the matters under investigation and her knowledge of misconduct by Noye or other police officers, that statement would be dealt with under s 22D of the Director of Public Prosecutions Act in order for the DPP to decide whether any of his discretionary powers, including his discretion to grant an indemnity from prosecution, would be exercised. Robbins explained that in the process, such a statement as was about to the taken would not itself be used for any purpose other than deciding whether or not to grant such immunity or to exercise other discretionary powers of the DPP so that, accordingly, she should give a complete and truthful account of her knowledge of the matters of interest. In the event, no immunity from prosecution was offered to Lynette Crimmins and this statement was not admissible in the criminal proceedings against her. Nevertheless, it disclosed to Inspector Robbins and to other officers on the IAU inquiry what evidence Lynette Crimmins was in a position to give.

518 This statement by Lynette Crimmins (Exhibit 29) is discursive, and in many places rambling. Nevertheless, essentially, it sets out much the same information as is contained in the manuscript statement which she gave earlier to Gwilliam and Burton (Exhibit 24), but in a more disordered fashion and with some material differences. She explains how she and her husband moved to Western Australia; how Barry Crimmins obtained a position on the security staff at the Argyle diamond mine; how he had an acquaintance with Lindsay Roddan and his then de facto wife arising from dog shows in Victoria and elsewhere; and, how she caught her husband Barry Crimmins at home in the bathroom with a supply of Argyle diamonds one day. This led to him explaining to her that he was taking diamonds from the mine and delivering them to Roddan. After some time, she became involved in distributing them to Roddan on his behalf. Once Corfield had discovered the Newton diamonds and the first police inquiry had begun, she explained that Roddan and her husband began to be concerned about the course of the inquiry being undertaken by Sergeants Thoy and Gwilliam, and regarded those officers as a real threat to their illicit operation. She went on to describe how she was present at conversations between Roddan and Barry Crimmins, and also was in conversation with Lindsay Roddan alone, in which Roddan was saying that they needed to "dig up dirt" on Thoy and to "burn him". Efforts were directed to attempting to discredit Thoy. Roddan asked her to raise money which could be used to pay to certain policemen in order to have Thoy compromised and removed from the case. According to her, unspecified police officers were paid $40,000 in order to get Thoy off the case from sometime in 1991.

519 According to Lynette Crimmins, the diamond stealing operation continued and she distributed diamonds for Roddan, including selling individual gems to particular pharmacists for cash. Then Roddan heard that the police operation into the Argyle diamond thefts was to be reopened and that Noye was to be put in charge of the second investigation. According to Lynette Crimmins, Noye was hand picked for this position because, from the very beginning, it was to be written-off. She described being present at meetings with Roddan and Noye in Northbridge at L'Alba Café, and then at her house when Noye was present, when there were conversations between him and Roddan indicating that from the beginning, the inquiry was to be written-off; that they would all benefit in the end; and, that senior police officers, "Uncle Max" and others, would ensure that nothing would happen. She described how the relationship between Noye and Roddan seemed to become close; how they would meet frequently, usually two or three times a week; and, how she was present at conversations when Noye was promised that he would have first pick of the diamonds.

520 When questioned about these conversations and whether it was clear that Noye was aware that Roddan and Barry Crimmins had been involved in stealing stones from the Argyle mine, she maintained in various ways that she was certain that Noye had known about this from the beginning and that "if only Barry had brought out the good stuff instead of the [poor gems] initially, we'd be a lot further ahead" and that he openly discussed the role of Horovitz with Roddan.

521 Lynette Crimmins also said that on three separate occasions she gave Noye money in cash ($200 or $300 or so), as payments from Roddan (Exhibit 29, 9TB 2129). She went on to describe two break-ins at her property at Lincoln Street, Highgate. The first of which involved the whole premises being trashed and two young Aboriginal boys eventually being arrested and charged with the offence. She implied that Roddan and/or unidentified police officers had in fact broken into the premises. The second break-in was the occasion when Noye came to the scene, helped prepare an inventory of stolen items, including, she says, false statements about the extent of items stolen, then prepared a false report and assisted her in making an insurance claim which, instead of recovering the items, resulted in a cash payment by a firm of jewellers arranged by Noye. She says that Noye demanded, and received, $1000 from the proceeds of that false claim, which he said he needed to pay for his fare to Victoria to visit Barry Crimmins and that the purpose of the visit was to make sure that he kept quiet.

522 She went on to describe how Noye had told Roddan and herself that the inquiry was going to be written-off but that he had to wait until Assistant Commissioner (Crime) Ayton was away in order to put in the report. She describes Noye giving a beige manila folder full of documents to Roddan at a meeting at the Gioia Café, while she was present, and saying: "There you are mate. That's it done. All we have to do now is wait for Ayton to go on leave and we'll write it off. It's over. It's all over." (Exhibit 29, 9TB 2139).

523 Lynette Crimmins then described the incident at Roddan's home on the evening of 18 January 1993, when she went there to demand money and was thrown out and injured by Roddan. She says she went to a girlfriend's house, telephoned Noye, he came around, picked her up, took her back to her house and spent the rest of the evening trying to calm her down and saying that steps would have to be taken to stop Roddan mistreating her because it was an assault and that he would attend to it. She was insistent that she had never had a sexual relationship with Noye or that he had ever "come on" to her. She says that Noye did not know that she was working as a prostitute until she told him in the early morning of 19 January 1993. She then went back to Roddan's home in the early morning of 19 January 1993. There was another incident, an ambulance was called, the police came and she was arrested and put in the Warwick Lock-Up where she made allegations of police corruption. While at the police station she says that she demanded that the police call Noye because he would get her out of it and that they should also phone "Uncle Max".

524 Although it does not emerge in this statement, the evidence from Noye himself was that the police sergeant at Warwick did call him while Lynette Crimmins was in custody, apparently in response to such a request, and asked if Noye wanted anything special done with her. Noye said no and that she should just be treated in the ordinary way, adding in his evidence, that he was thoroughly exasperated with her by that stage, having attempted to calm her down after the first incident with Noye that same night. Later that same day, after she had secured her release from the Warwick station, she phoned Noye again to demand that he do something. He hung up on her. Noye, himself, confirmed that that occurred. This appears to have caused her to become very angry with Noye.

525 After that she spoke to Inspector Syme and Inspector Robbins (as already described), later to Burton of Argyle, then to the Ombudsman, then to Sergeant Thoy, then to the Independent Corruption Commission and, finally, to Gwilliam.

526 She described how her marriage to Barry Crimmins ended after she learned that he was having an affair with a woman at the Argyle mine site; how she developed a relationship with Roddan; went into prostitution; and, now had sought protection from the police, and was on the witness protection programme.

527 In the course of this interview, Lynette Crimmins admitted that she had been using marijuana up until some six months before. She denied using amphetamines or other drugs. She then described how things were happening at her home - furniture was rearranged; personal items went missing and then reappeared; ornaments were moved; and, she was beginning to wonder about her mind - but then had been told by her daughter that Roddan had a key to her apartment and that some people were entering, and rearranging things in order to put pressure upon her. Inspector Robbins made it clear to Lynette Crimmins that, if she wanted the request for immunity to be seriously considered, she would have to provide all the information she could and that there was a lot of information which she had provided which could be used against Noye and Roddan. He himself was very reluctant to charge anyone upon her own evidence alone, because there were so many things that could be brought forward to damage her own credibility (Exhibit 29, 9TB 2172).

528 Clearly this statement (Exhibit 29) from Lynette Crimmins contains much material which seriously incriminates Noye, but it comes from a person whose credibility is, at best, extremely fragile. However, besides the serious allegations of express admissions of participation in corrupt conduct, and payments of cash to him (which incidentally were never relied upon or alleged in any of the charges or particulars of charges against Noye), there were also the seriously compromising statements of the regular, informal and familiar meetings which took place between Roddan and Noye at cafés and the delivery by Noye to Roddan of a file with papers.

529 This latter allegation, however, is suspect because there is no allegation which has ever been made by the police against Noye that he handed over a copy of his report or any draft of the final report to Roddan. Nothing like that was found in the searches which were executed at Roddan's premises. The allegation of the delivery of confidential papers by Noye to Roddan, witnessed by any observer, was confined to the delivery of a file containing the CRA soil analysis reports, which is said to have occurred at a meeting in or about 25 March 1992 when Gwilliam, Noye and Roddan were the only persons present.

530 This, and other features of Lynette Crimmins' statement, suggests that large parts of her evidence were in fact based on matters which she did not know about directly, but which had been related to her by Roddan, with his characteristic tendency for embellishment and self aggrandisement when it came to his influence with the police and others, and that she herself had adopted this and embellished it further, claiming direct knowledge of the events reported.

531 This tendency of Lynette Crimmins to embellish statements and to fill in gaps by her own assertions was a matter detected by Robbins and others later in the course of the investigation and, as already described, was reported on by him during the course of the WAPOLINV discussions with AFP officers. One thing which Lynette Crimmins did maintain throughout the whole of Exhibit 29 was that the deal always was that Noye was to be paid $200,000 for ensuring that the diamond theft inquiry was written-off.

532 There are two other statements of Lynette Crimmins to police officers concerning her involvement in various aspects of this inquiry which were referred to in the course of evidence. The first is a statement by her to Gwilliam dated 8 November 1993 (MFI 119, 9TB 2232). The second is a statement made by her to Chief Superintendent Lippe in the presence of two other police officers on 22 December 1993 (MFI 120, 10TB 2266). Although those two statements were produced and marked, they were never tendered in evidence and I have therefore disregarded them.

533 After Roddan and Noye had each been charged, Lynette Crimmins herself was interviewed by officers of the AFP as part of the WAPOLINV. This interview took place over three days, namely 28, 29 November 1995 and 24 January 1996, and was referred to in the cross-examination of Lynette Crimmins (Exhibit 122 12TB 2740 - 3054). It was only marked for identification in the proceedings against Inspector Robbins, but is part of the evidence in the case against Lynette Crimmins. I consider that I can, and should, use this material in relation to estimating the credibility of the evidence of Lynette Crimmins in the course of this trial, but for no other purpose. Certainly, I should not use it, and have not used it, in any way in relation to the case against Inspector Robbins. In particular, it has not been used in relation to considering the sufficiency, or cogency, of any of the information available to Robbins when he made the decision to charge Noye or, to such extent as he may have done so, to continue with the prosecution which had been so instituted.

534 In connection with the use of Exhibit 122 in relation to issues of credibility concerning Lynette Crimmins, I should also record that there was no submission that I should consider the whole of the lengthy transcript. As counsel for the plaintiff drew attention to particular passages only, either in the course of cross-examination of Lynette Crimmins or otherwise, it is to those and only those passages that I have given attention.

535 When asked by these officers about a transcribed interview with Inspector Robbins and Inspector Syme on 20 January 1993 (Exhibit 109), which is far less incriminating of Noye and others than later statements, Lynette Crimmins said that at that point she was still protecting her husband, Roddan and Noye to a degree because of the money which Roddan owed her and because she was meant to get $200,000, as was Noye. She also asserted that, during that statement and throughout, she was always told that because of her co-operation, "she'd get sort of immunity and indemnity and that there wouldn't be any charges against herself". This is contradicted by the terms of those statements, but this seems to be an idea which Lynette Crimmins developed later, possibly because the prospect of some form of immunity from prosecution being given to her was explored specifically on the October 1993 occasion (Exhibits 28, 29 and 138), but despite this, the absence of immunity appears to have become a bone of contention for her. This complaint was repeated at Exhibit 122, 12TB 2768). She also said that she lost trust and confidence in Inspector Robbins after he returned from Victoria, having seen Barry Crimmins in April 1993. She took the view that, from then on, Robbins believed the version of events given by Barry Crimmins and did not accept many of the things which she told him and that he questioned her credibility and reliability.

536 It is obvious that from about this time, from April 1993 onwards, Lynette Crimmins developed hostility towards Robbins and, as is clear from other sources, began to make allegations against him. It is equally apparent, and I find, that her sympathies were with the Gwilliam task force and the approaches taken by Gwilliam, Thoy and Corfield and the other Argyle security investigators. She also alleged that Inspector Robbins repeatedly pressed her to change her statement concerning the times when diamonds were stolen from Argyle and the number of diamonds stolen, in view of different versions of those aspects of the matter given by Barry Crimmins. There are passages in the WAPOLINV interview of Robbins, where Inspector Robbins himself freely acknowledged that he had pointed out to Lynette Crimmins that there were variations between her statement and her former husband's statement in these areas and of him asking whether, after they had been drawn to her attention, she wished to revise her statement. Lynette Crimmins never changed her version of events in this regard and it is clear that she interpreted Robbins' conduct as being unsympathetic towards her, unduly favourable towards Barry Crimmins, and inconsistent with the magnitude of the theft and the extent of police corruption which she was convinced had occurred.

537 These statements, made more than 10 years before this trial, are consistent with other evidence and the demeanour of Lynette Crimmins in these proceedings. She did have a grievance, and I am satisfied an unjustifiable one, against Inspector Robbins and other police for going back on what she believed was an undertaking that she would be granted immunity from prosecution. I am satisfied that there was no immunity ever offered in express terms and that, on occasions when she was making statements which were self-incriminating, she was warned of this but, deliberately, and with the advantage of legal advice, decided to proceed.

538 There was certainly a stage when the possibility of a full or partial immunity towards Lynette Crimmins was being formally considered by the State DPP and a particular interview, the contents of which could never be used against Lynette Crimmins, did occur (Exhibit 28, 7 October 1993). In the end, however, no promise of immunity has been revealed by any of the evidence. Her own repeated accounts of widespread systemic corruption in the upper levels of the Police Force, reaching back before Noye's involvement in the case, were made with great emphasis. However, upon examination, it is evident that most, if not all, of her belief in this regard is generated by what Roddan told her or she overheard. Her interpretation of other events is greatly influenced by the beliefs which Roddan so instilled.

539 Lynette Crimmins provided a formal deposition of evidence on 18 June 1998 (Exhibit 44, 13TB 3166 - 3198). This details the development and implementation of the plan for Barry Crimmins to steal diamonds from Argyle; her discovery of his role; how she began to distribute gems for Roddan; and, how the stealing continued, even after Corfield had discovered the Newton diamonds and the police investigation had begun. While this made reference to large amounts of money paid by Lynette Crimmins to Roddan during 1991, it did not contain any allegations that that money had been requested by Roddan to "burn Thoy" or otherwise was to be used for corrupt purposes to close down the first police inquiry. It did, however, mention that Lynette Crimmins learned of the existence of a second police inquiry in March 1992 and how she saw Roddan meeting with a person she later learned to be Noye on various occasions at the L'Alba Café in Northbridge. She later described a meeting at the L'Alba Café between Noye, Roddan and Gwilliam and other regular meetings between Noye and Roddan. She said that in July or early August 2002, Roddan told her that Noye was getting $200,000 to write-off the inquiry and that, later, this was spoken about regularly, in her presence, between Roddan and Noye. She also set out allegations that she paid several amounts in cash of $200 or $300 each time to Noye, on Roddan's behalf, and that at a meeting at Gioia Café in October 1992, in her presence, Noye gave Roddan a large manila folder containing a lot of paperwork, saying: "Here you go mate. We've got everything now except Devenish's statement. It's going to be bloody hard to get. It will cost more."

540 She went on to describe the break-in at her Lincoln Street home on 3 September 1992 and Noye's role and participation in preparing and making a fraudulent insurance claim, and how she gave him $1000 in cash from the proceeds afterwards, when Noye said that he was going to use the money to go to Shepparton to see Barry "to shut him up". Then she recounted the events at Roddan's home on the night of 18 and 19 January 1993 which led to the assault, her subsequent arrest and her interviews by Inspectors Syme and Robbins. In the deposition she said that, in the course of that first interview, Noye telephoned her at her home and "told me to keep my mouth shut". Previous versions of her accounts of that episode were that Noye had indeed telephoned her while the IAU officers were at her home, that he became angry with her and said that nobody would believe her because she was "a suicidal prostitute".

541 Another deposition from Lynette Crimmins is Exhibit 62 (13TB 3257) which is undated. This details the earlier associations between herself, and her then husband, Barry Crimmins, with the breeding and showing of German Shepherd dogs and travels to the United Kingdom and Germany for dog shows and the purchases of animals, leading to meetings with Lindsay Roddan and his then de facto wife. This deposition culminates with a statement that, during the time that she was married to Barry Crimmins, she was never aware of him doing anything suspicious or out of the ordinary and that she was sure that he had no dealings with Lindsay Roddan, other than in connection with the German shepherd dogs. This statement, now obviously untrue, is an exact copy of attachment 36 to Exhibit 3 (4TB 909 - 915), which is Noye's draft report of September 1992, reporting that there was no evidence to charge any persons in connection with the alleged diamond thefts.

542 Noye referred to this statement in the text of his report (Exhibit 3 2TB, 206 - 207), but this passage in the report makes no reference to Lynette Crimmins' extensive relationship with Roddan, either before or after the break-up of her marriage, which is a particularly surprising omission once all the background information has been assimilated.

543 The final statement of evidence available from Lynette Crimmins is the copy of her deposition, which formed part of the prosecution brief in the charges against Roddan and Noye for conspiracy to pervert the course of justice. This is part of Exhibits 107 and 108 (2STB 369 - 419). This is a greatly extended version of Exhibit 44 and must, therefore, as a matter of inference, have been prepared after Exhibit 44, which is dated 18 June 1998, that is after the third indictment dated 2 June 1998 (Exhibit 10) and, naturally, before the nolle prosequi of 8 October 1998 (Exhibit 12).

544 This deposition contains a far more extensive account of her dealings in diamonds from 1989 onwards, including after the discovery by Corfield, and then the police, of the Newton diamonds in November 1989. This statement (2STB 405) does make reference to Roddan speaking about attempts to "burn" Thoy and to have him kicked off the Police Force as a result of paying $40,000 to certain senior policemen, including "Uncle Max". The same statement (2STB 409) refers to Roddan saying that Noye was onside and was getting $200,000 to write-off the inquiry and that he had to go and see Barry Crimmins in Victoria and "shut him up". It also described the details of the alleged fraudulent insurance claim engineered by Noye and how she had given $1000 in cash to Noye from the proceeds of that claim as his share to finance his trip to Melbourne. It also relates an incident between August and October 1992 at the Gioia Café when she saw Noye give to Roddan a manila folder containing many papers and that Noye said: "Here you go mate. We've got everything except Devenish's statement. It's going to be bloody hard to get it, it will cost more", and: "We've got everything except Devenish's statement. They can't pin anything on us now."

545 This statement, the final deposition, part of Exhibits 107 and 108, is the most extensive and detailed of all the depositions given by Crimmins and is plainly very incriminating of Noye. Having regard to the nolle prosequi which was filed only a few months later, the only reasonably inference which can be drawn is that the DPP must have concluded that, whether she was co-operative or not, Lynette Crimmins would not have been a credible witness in any prosecution against Noye.

546 As already mentioned, Inspector Robbins had many similar reservations about her credibility back in 1993. Nevertheless, he, and others, must have taken the view that parts of her evidence could be corroborated, or that even her uncorroborated evidence, together with evidence from other sources, would be sufficient to raise a circumstantial case against Noye which would amount to sufficient proof. If so, that is a view which must also be regarded as having been abandoned because of the implications arising from the filing of the nolle prosequi. This implies no criticism against any of the persons who made or participated in making such decisions because, as is only too obvious, the reasons for doubting the credibility of Lynette Crimmins appeared to increase, rather than to diminish, as time went on and other details of her conduct and the actions of other parties became known.

547 There is a further statement of sorts from Lynette Crimmins in the form of a letter dated 23 October 2000 to Sergeant Gwilliam and other senior police officers (Exhibit 173, 18TB 4554 - 4556). [WARNING: PART OF THIS EXHIBIT CONTAINS INFORMATION WHICH COULD IDENTIFY THE WHEREABOUTS AND NEW NAME OF LYNETTE CRIMMINS WHICH CANNOT BE DIVULGED BECAUSE OF A SUPPRESSION ORDER MADE AT THE TRIAL WHICH IS STILL IN FORCE.] By this letter Lynette Crimmins asserts the truth and reliability of the statement which she made in July 1993 in manuscript to Gwilliam and Burton (Exhibit 24). She explains that that statement was given in the presence of her solicitor, Mr John Redman, and that because, at that early stage she did not know or trust Gwilliam, she requested that Burton be present for the entire interview. This provides some explanation of how Burton was present when that statement was taken, which tends to deflect some of the criticism made by Inspector Robbins, in the course of WAPOLINV investigations, into the role of the Argyle security investigators in the inquiry. However, as far as I can discern from the evidence, this explanation of Burton's presence was never revealed to Inspector Robbins, in the course of those interviews or at this trial, and I accept that he was either not aware of it or did not have it to mind when he gave evidence.

548 This lengthy review of the available materials has dealt with most, if not all, of the direct evidence available from persons involved in the Argyle diamond thefts and attempts to forestall the police investigations, except for circumstantial evidence, including inferences, which might be drawn from Exhibit 3 - Noye's own report. It is now necessary to direct attention to the explanations provided by Noye himself when confronted with allegations from these other sources. There were four such statements referred to at the trial, only three of which became evidence. These are:

• 19 February 1993 - Noye's interview by Superintendent Watson and Inspector Robbins of the IAU (Exhibit 19, 6TB 1317).
• 16 September 1993 - Transcript of the interview between Superintendent Watson, Inspector Robbins of IAU, Noye and his solicitor, Mr Quigley (Exhibit 143).
• 21 September 1993 - An interview between Chief Superintendent Lippe and Inspector Robbins of the IAU and Noye (MFI 118, 8TB 1991) (which, although marked for identification, was never tendered and did not become evidence).
• 21 November 1993 - Written statement given by Noye to Inspector Robbins when he was charged (Exhibit 144, 10TB 2258).

549 I therefore turn to Noye's several explanations of his conduct before he was charged.

550 The first of these is the transcript of a tape recording of the interview of Friday 19 February 1993 between Noye, Superintendent Watson and Inspector Robbins at the IAU office. It is Exhibit 19 (6TB 1317 - 1420).

551 Noye himself had sought this interview when he learned of the accusation made against him by Lynette Crimmins. He had first gone to see Assistant Commissioner (Crime) Ayton to report what had happened and to demand that something be done to clear his name. Senior IAU officers were present at the interview with Assistant Commissioner (Crime) Ayton and, at Noye's initiative, he arranged to see them for a lengthy interview later.

552 The interview is very discursive and unstructured, with both Noye and the questioners jumping from point to point about the investigation. Essentially, Noye denied any corruption, any bribe or offer of bribe by Roddan, as well as denying that he had improperly recommended that the inquiry be written-off or had run dead on the investigation. He maintained that he had not sought appointment to the investigation, had been chosen by Zanetti and had no choice but to accept the assignment. He worked with Gwilliam, whom he regarded as honest, sincere and hardworking, but a point was reached where he and Gwilliam fell out and, as previously described, Gwilliam left the investigation. Initially, he claims that he was very sympathetic to the conclusions which had been reached by Thoy and Gwilliam in the first investigation and, having had briefings from Corfield and others of the Argyle security staff, believed that the Newton diamonds had been improperly obtained from the Argyle diamond mine. However, as his investigation proceeded he began to doubt the proposition which Corfield always maintained; namely, that there was no practical possibility that the gems, appearing to be of Argyle origin found among the Newton diamonds, could have been obtained by Roddan legitimately. The further he investigated the matter the more he became satisfied that there were large numbers of gem-quality diamonds coming from the Argyle mine which were distributed via the WADT, went to Antwerp, and to other distribution centres, and which were available for sale.

553 Despite Corfield's assertions that significant numbers of Argyle diamonds could not be purchased by legitimate dealers buying through the CSO in London, Noye reached the opinion that there were indeed many practical opportunities for diamond merchants, such as Horovitz, to buy Argyle-sourced diamonds from Arslanian Freres and others in Antwerp. In addition, there were quantities of pink gem-quality diamonds from the Poseidon Exploration Ltd mining operation at Bow River which were being exported and marketed separately and which could also be sourced by an agent, like Horovitz, or his representatives, from Hong Kong, Singapore or elsewhere.

554 As for Corfield's suggestion that only "clean" (that is, post acid) diamonds left the Argyle mine, so that any collection of diamonds which showed signs of pre-acid dirt or mineralisation must have been stolen from the mine site, Noye explained that his investigations among Argyle records, from their personnel at the mine site and in Perth, demonstrated that, for a period of about three years in the late 1980's, the Argyle mine was having problems with its acidisation process and that there were batches of diamonds that had to be sent back from Perth to Argyle for re-acidisation. Accordingly, it was perfectly possible, and indeed quite probable, that there had been the export and sale of Argyle diamonds, during this period, which had not been completely or effectively cleaned by the acidisation process. Only two of the 30 or so diamonds found at the Newton workshop were of this character. Furthermore, Noye was satisfied that there was ample evidence to demonstrate that Horovitz was dispatching consignments of diamonds, including uncut diamonds, from Geneva to Roddan in Perth, ostensibly to assist Roddan establish his own diamond cutting operation here. Accordingly, there was evidence to support Roddan's claims that he had purchased the Newton diamonds from Horovitz and, by doing so, had come by them legitimately and that they were his property.

555 Noye also pointed out that the scientific tests which had been relied upon by Corfield for the conclusion that several of the Newton diamonds were from the Argyle mine were not conclusive. While they raised a probability that those individual gems came from Argyle, they did not specifically show that they came from the Argyle diamond mine, as distinct from Poseidon Exploration Ltd Bow River operation. Noye had reached the view that he had been misled. He said that he had been lied to by Corfield, Burton and other Argyle personnel about the degree of certainty that some of the Newton diamonds must have been stolen from the Argyle mine. He said that when he pointed out the possibilities that they had been come by legitimately by Horovitz, he experienced difficulties and problems with Corfield, followed by hostility towards his opinions and actions. The view which Noye says he finally reached was that, the initial inquiry by Thoy and Gwilliam had miscarried because those two officers had accepted, as conclusive, the assertions by Corfield and the Argyle team that the Newton diamonds could not have been acquired by Roddan legitimately and that the collection included pink stones from the Argyle mine.

556 In this interview, Noye told the IAU investigators that he had, up until the night of 18 and 19 January 1993, regarded Lynette Crimmins as a respectable, reliable, hardworking business woman and did not have any reason to suspect that she was involved in any stealing or distribution of diamonds. He said that it came as a complete surprise to him to discover, on that eventful night, that she had been having a long-running affair with Roddan, that she had been working as a prostitute or that she had been paying Roddan large sums of money, reaching a total of $150,000 or thereabouts. She told him those things herself that night when she was very dishevelled, injured as a result of the assaults upon her by Roddan, seriously affected by alcohol and almost incoherent. He had tried to settle her down and she had showed him her banking and financial records, which demonstrated many large payments from her funds, either for cash, or to Roddan. It was during this conversation that she told him that Barry Crimmins had in fact been stealing diamonds from the Argyle mine over a period of years, that he had been supplying these to Roddan and that she had been involved in the supply and distribution of these stolen diamonds. His reaction was that this was simply not possible, that he did not believe that Barry Crimmins was involved in any such illegal activity and that this was an invention of Roddan, whom he believed to be a crook prone to making extravagant statements and exaggerating his own importance and achievements.

557 Noye told Lynette Crimmins, at the time, that it was very late in the day for her to come forward with such an accusation and the time for disclosing this was years before and that, having regard to her condition, what she had been doing and her animosity towards Roddan, her credibility was very low. The discovery of the life that Lynette Crimmins had been living, and her association with Roddan, obviously caused Noye to recast his view of her and of her credibility to a very great extent. He reported that she had told him, in the course of the same conversation, that Corfield had promised to pay her $200,000 if she signed a statement telling him the truth about Barry Crimmins and Lindsay Roddan, but it is evident that Noye gave no credit to that assertion.

558 With regard to Roddan, Noye told the IAU officers that he believed that he was a crook, that he was involved in a variety of illicit or marginal commercial transactions and that he was constantly in contact with various police officers, alleging break-ins and thefts from his premises, arson of a property at Chittering, interference with his stock of horses and a myriad of other complaints. Noye regarded him as untrustworthy, a troublemaker and a constant irritant who contacted him endlessly. However, he did not accept that the diamonds found at Newton's workshop, or those the subject of other dealings by Roddan, could be shown to have come from the Argyle mine. He repeated that he did not believe that Barry Crimmins was stealing diamonds from the mine and that he did not believe that Lindsay Roddan was getting diamonds from the mine. His view was that there were so many lies being told and so many false and peripheral issues involved in the investigation that misinformation obscured the whole inquiry.

559 While he respected the work of Thoy and Gwilliam on the first investigation, and was very sympathetic because of the way Thoy was treated and removed from that investigation, Noye did not believe that that first phase had been wrongly or corruptly closed down. He attributed the decision to end the first phase of the inquiry to a lack of progress being made by Thoy and Gwilliam. He regarded their strident allegations, that their investigation was hampered by interference or obstruction from senior officers, as being due to them being put on the wrong track by Corfield as to the incontrovertible proposition that significant numbers in the Newton diamonds came from the Argyle mine.

560 Noye said that the first occasion he had any contact with Roddan was when Roddan telephoned him and requested a meeting, having heard that Noye was now handling the inquiry. He admitted to having spoken to Roddan dozens of times and said that Roddan telephoned him almost every day. He agreed that he met with Roddan, alone, on a number of occasions and explained this by saying that he did not get on with Gwilliam. Despite Roddan having been named as the principal suspect in the initial inquiry, Noye said that he never in truth believed that the Newton diamonds came from the Argyle mine. His own personal opinion was that the diamonds had all come from Horovitz via the WADT from Antwerp and Arslanian Freres (Exhibit 19, 6TB 1353 - 1354). Noye was asked whether he thought it wise to meet with Roddan as he had done, but his answer was that he did not have any qualms about this and thought that the more that Roddan spoke to him, the more he might learn.

561 Also in this same interview, Noye admitted that he had visited Barry Crimmins in Shepparton. He said that this came about because he had spoken to him by telephone at an early stage of the inquiry and wanted to speak to him again. He had asked Corfield if Argyle would finance his travel to Victoria to interview Barry Crimmins, but Argyle was not forthcoming and the initiative was shelved. Noye discovered that, during 1992, Barry Crimmins had visited Perth and had attempted to contact him at the Perth CIB, only to find that Noye was away on a training course. By the time Noye learned of the attempt at contact, Barry Crimmins had returned to Victoria. Noye thought that this attempt by Barry Crimmins to contact him was not indicative of any sense of guilt and thought that it would be opportune to meet with Barry Crimmins when he had the chance. He was going to Victoria on leave to visit members of his family, and it was convenient to make a visit to Shepparton overnight when he had been staying with members of his own family in the nearby town of Euroa. Noye travelled to Victoria by bus and, as noted, stayed with relatives in various country towns in Victoria. He met with Barry Crimmins at the Sherbourne Hotel, where they had a general discussion. He told Crimmins that, in his opinion, the diamonds had come from Geneva and that "Roddan was a rat bag [and that] in my opinion Barry was not involved for what that was worth" (Exhibit 19, 6TB 1367). He denied that his visit to Barry Crimmins compromised him in any way. He maintained that Barry Crimmins did not say or suggest anything in the course of his discussions which might incriminate him in thefts of diamonds from the Argyle mine.

562 Noye also admitted meeting Lynette Crimmins several times during the course of the inquiry, both at her home with other police officers and at a café in Northbridge. However, he said that he had never regarded her as a suspect. He described his role in the events of the night of 18 and 19 January 1993 and recounted many of the things which she said she had been told by Roddan, including the assertion that Horovitz had sent $500,000 in instalments to Roddan for various investments, which Roddan had wasted.

563 Returning to his meetings with Roddan, Noye recounted an episode where Roddan had said to him that a number of unidentified senior policemen were "bent" and "they'll do the right thing with the diamonds", which caused Noye to report this allegation to Assistant Commissioner (Crime) Ayton and to set up an appointment to meet Roddan with Ayton at the L'Alba Café. During that meeting, according to Noye, Ayton directly asked Roddan whether he knew any corrupt police officers. Roddan said that he did not.

564 Noye maintained that he had conducted a thorough and effective inquiry and that he was convinced that Barry Crimmins and Roddan had not illegally obtained diamonds from the Argyle mine. He said that he had been unable to secure co-operation from Thoy during the conduct of his own second stage of the inquiry and that he had also asked Thoy to tell him "as a mate" what had been going on, but Thoy would not speak to him.

565 Noye's view was that Corfield had misled both inquiry teams (Exhibit 19, 6TB 1402) and that there were in fact a large number of gem-quality diamonds from the Argyle area circulating in Europe, which could be readily purchased by Horovitz or by similar dealers. At the time of his interview with Superintendent Watson and Inspector Robbins, on 19 February 1993 (Exhibit 19, 6TB 1408 - 1409), Noye had not previously been confronted with the allegation made by Lynette Crimmins that he had been paid $200,000 to write the investigation off. On hearing this, however, he denied it absolutely. After explaining that he was upset about the allegation, he went on to say that it was a "rotten wind-up" and that he (Roddan) was "just renowned for it". Noye stood by the report which he had prepared and said that all the reports and recommendations could be confirmed and he offered to co-operate further in the investigation by the IAU.

566 During the course of this interview of 19 February 1993, there was no reference to the allegations which were later to appear as charges against Noye, that he had unlawfully and improperly disclosed confidential documents to Roddan, namely the D'Anna report and the Argyle soil analysis report. Nor was there any reference to a false or fraudulent insurance claim arising from the burglary of Lynette Crimmins' premises in Lincoln Street, Highgate; nor to disclosing confidential police information about the owner of stolen firearms to Roddan, to allow him to return the firearms without taking steps to secure the firearms, himself, or by another police officer. Of course, the "discovery" of the D'Anna report did not come to light until later - during or after the search of Roddan's premises on 10 August 1993. The matter was left on the basis that the IAU officers would continue their inquiries and would, if necessary, in due course revert to Noye for further clarification of any points which might arise. In the meantime, he was directed specifically by Superintendent Watson not to speak to Roddan or to Lynette Crimmins, but that if he should be contacted by them, to say only that he had been directed not to communicate with them (Exhibit 19, 6TB 1414).

567 The next interview between Inspector Robbins and Superintendent Watson with Noye occurred in the presence of Noye's solicitor, Mr Quigley, on 16 September 1993. This was a formal interview in which the superior officer directed Noye to make a formal report pursuant to his obligations as a police officer under reg 605 of the Police Force Regulations. The interview was recorded, video-taped and transcribed, and the transcript is Exhibit 143 (119 pages). It begins with a preliminary series of statements by Noye's solicitor, Quigley. These make the point that, whereas Noye had previously co-operated freely and voluntarily and had signified that he was always ready to maintain co-operation, he had become distressed at unauthorised allegations which were made against him, and which were circulating in the Police Force, to the effect that he had been improperly involved in corrupt activities. Quigley recorded that Noye had complained to the Commissioner of Police about these unauthorised allegations and had asked the Commissioner to take action. Despite this, there had been further leaks to the press by an officer associated with the Argyle diamond investigation, suggesting that a senior police officer previously involved in the inquiry was about to be charged, and that this publication was sufficient to identify Noye. Quigley protested that the failure of the police command to take action on Noye's complaints, and the fact that details of the inquiry had obviously been deliberately leaked to the press, was extremely embarrassing and prejudicial to Noye. Quigley stated that, as a result, Noye had decided that he needed legal advice and representation, and that statements had been made in court on bail applications suggesting that Noye was a person under investigation for corruption. In this situation Noye had come to fear that, somewhere at a high level in the Police Force, there was deliberate leaking of prejudicial information against Noye to the press.

568 Superintendent Watson replied by saying that he could understand Noye's attitude and why it had changed, but pointed out that the IAU had nothing whatever to do with the recent reports in The Sunday Times. Nevertheless, the IAU officers were obliged to conduct the investigation and formally required Noye to answer the questions as directed.

569 The interview then began and involved a long historical account of Noye's appointment (by Zanetti) to, and conduct in undertaking, the second stage of the diamond theft inquiry. He was told to report to Zanetti directly, but later was told that he should liaise with Ayton if he needed any help, guidance or advice.

570 The following points of present significance emerge from this interview:

(a) The only persons to whom Noye reported during the conduct of his phase of the inquiry were Zanetti and Ayton.

(b) He specifically denied meeting Roddan at the L'Alba Café twice in one week prior to commencing the inquiry, an allegation made to Robbins by Lynette Crimmins.

(c) At one point during the inquiry Robbins' solicitor, from the office of Mr Majteles, called to see Noye at Curtin House, by prior arrangement, and collected certain documents from Roddan's file which related to discovery in the interpleader action.

(d) Early in the course of his inquiry Noye telephoned Barry Crimmins in Victoria to ask if he would speak to him. Once Crimmins agreed, Noye asked whether Crimmins would sign a note of the interview or a statement; but Crimmins refused to provide any such record.

This first approach followed discussions with Corfield, who suggested that contact should be made with Barry Crimmins. That approach was before Barry Crimmins' subsequent visit to Perth when he missed seeing Noye at Curtin House. Noye said that he then asked Corfield if Argyle would pay for him to travel to Victoria to see Barry Crimmins, but Corfield declined. Noye explained that, on the basis of the information then known and in light of Crimmins' refusal to sign any statements, he could not justify a request to the police authorities to finance a trip for him to go to Victoria. Corfield's response was that Noye was in charge of the inquiry and it was his decision to decide how it should be pursued. Subsequently, in November 1992, Noye was travelling on leave to see relatives in Victoria and thought it opportune to try and visit Crimmins while there. So it came about that he contacted him and arranged to meet, and later met with Crimmins in Shepparton, as has been described.

During the Shepparton visit in November 1992, Noye told Barry Crimmins that he had discovered no evidence whatsoever implicating him in any aspect of stealing diamonds from the Argyle mine. As already recounted, he had no question marks in his mind against Barry Crimmins whatsoever.

(e) Noye's travel to Victoria was by bus. He was able to obtain a half price fare and paid with cash from his own funds. The price was approximately $106.50, but he had no record or receipt for the payment.

(f) Noye said that did not believe that he had compromised himself by visiting Crimmins in Shepparton because, apart from Corfield's deep suspicion that Barry Crimmins was involved in stealing diamonds from the Argyle mine, there was simply no evidence of any kind available to Noye to implicate Crimmins. Noye thought it right to tell Crimmins this so that Crimmins would feel free to come and visit relatives in Western Australia without fear of being troubled by the police. Noye did say, however, that he was curious to see how Crimmins responded to his meeting. He said that if he had detected or suspected anything which would implicate Crimmins in the stealing investigation, then he would have put it in a supplementary report to his superiors.

(g) In relation to the allegation by Lynette Crimmins - that he gave Lindsay Roddan a thick folder with documents, saying that the Devenish statement was missing and would cost Roddan more - Noye absolutely denied ever giving such a document or any papers to Roddan, except for certain papers which were handed over in March 1992.

(h) Noye, via Gwilliam, had obtained a statement from the jeweller, Charles Devenish, relating to the latter's dealings with Roddan. Devenish recounted statements said to have been made by Roddan, that he had access to illicit diamonds from the Argyle mine, but Noye did not trust Devenish. Noye knew that Devenish had had a major business dispute with Roddan, and that Roddan and Devenish were involved in major litigation against each other over a large amount. Devenish would not speak to Noye and Noye was not prepared to charge Roddan on the say so of Devenish.

(i) In response to a direct question, Noye absolutely denied that he had ever received or had been offered money to write-off the investigation, let alone the amount of $200,000 alleged by Lynette Crimmins. He became angry about that accusation, the more so because it had ruined his reputation and his career prospects and because it had recently been brought up in the press.

(j) Noye denied assisting Lynette Crimmins in relation to an insurance claim arising from the theft of items during the burglary of her home in Lincoln Street, Highgate. He said he had no dealings with an insurance company or any jeweller to replace the property stolen. He did, however, attend at the premises. He wrote up a report form recording the items which she said were missing and could well have later given her a copy of that form. However, apart from that, he had no involvement in any way in an insurance claim for the recovery of payment for the missing items.

(k) When asked why he had not obtained a formal statement from, or conducted a formal interview with, Roddan as a suspect, Noye said that he had asked him many times for a statement but that Roddan had always said that he had been advised not to give statements to the police. Despite this, Roddan frequently contacted Noye and discussed various aspects of the inquiry. However, Noye said that by this process, he got more information from Roddan than he would have expected to obtain, even if a statement had been taken.

(l) When told that Barry Crimmins had recently been arrested and charged with conspiracy to steal as a servant from Argyle, and that Crimmins had made a full statement containing certain things about Noye, Noye said that there was nothing between Crimmins and himself and that he knew of no reason why Barry Crimmins would make allegations against him.

(m) Noye said that on the evening when he stayed at Barry Crimmins' home during the Shepparton visit, he (Noye), had said: "There's a lot of money spent on this investigation". However, he said that it was said as a joke and denied specifically having said that "there had been a lot of money thrown out to make sure that you [Crimmins], are not involved in this situation".

Noye also said that during the course of his inquiry he had tried to enlist co-operation from Sergeant Thoy. He had twice requested him to help him, but on each occasion he had refused.

(n) Robbins put to Noye that throughout his final report (Exhibit 3) there appeared to be inconsistencies between the conclusions which Noye had reached and the recommendations which he had made. He also asserted that the conclusion were inconsistent with the content of some of the annexures forming part of the report which, in a number of significant respects, contained information which tended to incriminate Roddan. In particular, a statement from Roddan's former de facto, Raelene Shaw; the statement from Devenish, already mentioned; and, the evidence which showed that Roddan was in possession of hydrofluoric acid and had suffered burns on his body from attempts to use it. Noye rejected these interpretations, saying that Raelene Shaw was "a scorned woman" and that Devenish had great animosity towards Roddan. In relation to the hydrofluoric acid, he pointed out that he had investigated Roddan's purchase of it and discovered, from records of the Health Department and the issue of a licence for Roddan, that the only purchases of hydrofluoric acid made by Roddan were three months or more after the discovery of the Newton diamonds.

(o) Superintendent Watson and Inspector Robbins put to Noye that because of the form in which the final report (Exhibit 3) was prepared, Noye would not have expected his senior officers to read the entire report but only the summary and recommendations. They noted that the potential discrepancies between the content of the report and some of the annexures would not therefore have been noticed by the senior officers. Noye did not accept this and the suggestion, itself rather unlikely, does not appear to have been pursued.

(p) Noye was then asked about discussions with Roddan, in recent times, arising from Roddan being charged with being in possession of stolen firearms, including those stolen from the farmer in Gnowangerup. Roddan had told police that he had discovered the owner of those firearms by enquiring about that from Noye, and that Noye had checked the name of the owner on the police computer and given that information to Roddan. Noye's explanation was that, in February 1993, he had been specifically directed by Superintendent Watson and Inspector Robbins not to have any dealings with Roddan and that if he was approached by Roddan to put him off. He says that, after those instructions were given (or perhaps an earlier intimation of them during the 20 January 1993 meeting), Roddan telephoned him unexpectedly at the Morley Police Station to say that he had some guns which he thought were stolen. He gave Noye a serial number of one of the weapons. Noye said that he was very worried and suspicious of this approach and believed that he may have been set-up by Roddan, Corfield or undercover IAU officers. He checked on the police computer and discovered that the particular weapon was stolen and immediately told Roddan that he should hand all of them in to the nearest police station. Roddan replied that he did not have them with him and was in the car. Thereupon Noye tried to contact the Gnowangerup police, but without success. He then phoned the owner who confirmed that he had had a break-in and that guns had been stolen. Roddan rang back and Noye gave him the name of the man in Gnowangerup and his address and told Roddan that he had to hand them in. Roddan said that he would be going down to Gnowangerup within the next day or so and would hand them into the Gnowangerup police. Noye said that he should hand them in immediately but did not take the matter further. Noye accepted that his behaviour was irregular but says that he was, by then, extremely worried about allegations which were circulating within the Police Force and that he thought that in some way or another he was being set-up.

(q) In this interview, Robbins told Noye that "I have not formed an opinion that you should be charged with any criminal offence. But I have to make inquiries and continue those inquiries." (Exhibit 143 at page 114).

(r) In response to further questioning, Noye agreed with Superintendent Watson that, as the inquiry developed, it really got beyond him because he did not have the resources or the capability to deal with it all. He did not ask for more manpower because he knew this was not available. He had sought assistance with listening devices from the BCI but was told that other jobs had higher priorities. He had gone to Assistant Commissioner (Crime) Ayton on occasions for guidance and direction, but Ayton was not able to give him some of the resources which he asked for.

571 It is evident that throughout this very long compulsory interview, Noye steadfastly denied that he had been guilty of any impropriety in accepting money, bribes, inducements or other consideration to influence him in the conduct of the investigation or to recommend that it be written-off. He expressly denied allegations about his conduct or statements which had come from Lynette Crimmins. He denied any improprieties with Barry Crimmins and explained that the statement about "a lot of money being spent" had been said by him, but not as Crimmins had related it and certainly not with the implication that was then being attached to it.

572 It was not put to him that he had told any untruths, then, or in the course of earlier interviews, or that he had contradicted anything which he had previously said or claimed to have done. Importantly, it was not alleged that he was living beyond his means, had unexplained wealth or had secret deposits of money or other assets. Nothing in any aspect of the inquiry at that stage, or subsequently, suggested that Noye had actually profited financially from his conduct of the investigation. This was expressly acknowledged by Superintendent Robbins when giving evidence at this trial.

573 The disclosure by Noye to Roddan of the name and address of the man at Gnowangerup who owned the stolen guns was certainly an irregularity. However, it had happened long after Noye's role in the diamond theft investigation had concluded, and after the allegations of corruption had been advanced by Lynette Crimmins which were under investigation by the IAU officers. There is no doubt that by the time this happened Noye was the subject of an unwelcome and pernicious whispering campaign within certain levels of the Police Force and that he was deeply worried and suspicious about what was going on. That episode in itself would not support the far more serious allegations of corruption against him.

574 The only other written statement made by Noye was the statement which had been prepared by his solicitors when they were notified that he was about to be charged. It was handed by Noye to Inspector Robbins on the occasion when he was charged on 12 November 1993 and then released to the press. It is Exhibit 144 (10TB 2258), and states:

"I have been informed that I am to be charged with one count of attempting to pervert the course of justice in the 'Argyle Diamond Investigation' and two counts of disclosing official secrets.

I have been informed that these charges have been prepared and are about to be served on me and therefore I don't believe that you will accept anything that I say establishing my innocence.

I have been in the Police Force for over 20 years.

I regard the Police Force as my family.

The Police Force is my family and my three children are members of the Police Force.

The report that I prepared on the Argyle Diamond Investigation was prepared by me at the request of the Deputy Commissioner of Police Mr Zanetti who asked me to review the work of another Detective Sergeant who had concluded that charges could not be preferred against Crimmins and Roddan.

The allegations against me are poisonous lies made against me by persons who have lied to me, to Detective Sgt Thoy, to other Policemen and who are now telling lies to you about me.

I am not guilty, I do not fear my trial because I believe in the system of justice and expect my acquittal in due course.

This is all I have to say on the matter as I firmly believe you have made up your mind and you will charge me irregardless of what I say.

You will prefer to accept the word of criminals rather than myself as an honest Police Officer.

Jeffrey J H Noye"

575 These emphatic denials by Noye are important because of the implications which they have for the issue of whether or not there was reasonable and probable cause to lay the charges and, further, if there was no reasonable or probable cause to do so, whether that absence, having regard to other circumstances, would support a further finding that the institution of the prosecutions was malicious. Reference has already been made to authorities which have held that where a prosecutor has nothing before him but circumstances of mere suspicion, or where he knows that the acts on which the prosecution is found were done openly and in good faith, and in assertion of the legal right, there is in general no reasonable and probable cause: Bradshaw v Waterlow & Sons Ltd [1915] 3 KB 527; Colson v Radclyffe (1887) 4 TLR 59; and Corea v Peiris [1909] AC 549; and, similarly, that where a plaintiff's explanation of the facts is consistent with innocence, the person instituting the prosecution must have reasonable grounds for disbelieving that: Jenner v Harbison [1879] VicLawRp 105; (1879) 5 VLR (L) 111.

576 The evidence which Inspector Robbins and the IAU had against Noye at this point was, in substance, chiefly the allegations being made by Lynette Crimmins and the incongruity of the contents and recommendations in Noye's final report of September 1992 (Exhibit 3), which had become apparent once the details of the diamond stealing operations had been revealed by Barry Crimmins and, to a lesser extent, by Lynette Crimmins. Barry Crimmins appears to have been accepted as a credible (but not a disinterested) witness, but it was only his statement of what took place in Shepparton which was at all incriminating of Noye. In that respect, it was at most equivocal. Lynette Crimmins was a person who was revealed to have lied on important issues to the police and others on very many occasions; to have been animated by great hostility towards Roddan which she somehow transferred to Noye; to have been a person with a long and serious involvement in selling the stolen diamonds; and, to have behaved in an hysterical and vengeful fashion in a personal crisis. Her credibility was extremely low, and I do not see how a prosecution of a senior and long-serving police officer, based on her uncorroborated evidence alone, could ever have been justified. The real question is whether or not there was other sufficient evidence, circumstantial or direct, which would give weight to her allegations on the essential issues of corruption.

577 A résumé of the evidence available to support the charges laid against Noye can be found in the briefing note prepared by Inspector Robbins (Exhibit 23 (7TB 1538)). This has already been referred to earlier in these reasons. Putting aside the charges alleging unlawful disclosure of confidential police information, which depended largely, if not entirely, upon the evidence of Gwilliam, the charges of corruption against Noye relied on the evidence of Barry Crimmins and of Lynette Crimmins, supported by the circumstantial evidence arising from statements which it is alleged Noye did not include, or which he deceitfully discounted, when reporting on his investigation. I have already indicated that the evidence of Barry Crimmins, insofar as corruption by Noye is concerned, is at most equivocal. This means that, in practical terms, the case against Noye depended to a very great extent upon the credit of Lynette Crimmins. While hers was not the only evidence to be relied upon, I am satisfied that it is true to say that, without her evidence, there was, in any real sense, no case against Noye.

578 In relation to the charges against Noye that he had improperly disclosed confidential information to Roddan; firstly, the CRA soil analysis reports which were handed over at a meeting with Roddan, attended by Noye and Gwilliam on 25 March 1992; and, secondly, in relation to the disclosure of the D'Anna report, said by Gwilliam to have been found among materials seized from Roddan's premises under search warrant, these charges depended, not entirely, but to a significant extent, on the evidence of Gwilliam.

579 Gwilliam was present at the coffee shop when the soil analysis reports were handed over. He says that he later challenged Noye about the disclosure of these documents and was given an inadequate explanation. Noye disputes this, saying that the soil samples were handed over openly and that he had previously raised with Assistant Commissioner (Crime) Ayton the question of whether or not he could provide Roddan with materials which might bear on the interpleader proceedings, and that Ayton had given his approval. Noye claims that a tape-recording of his conversation with Ayton about this and other matters was made and kept in Ayton's possession, but at some later time was lost or destroyed. Ayton confirms that there was such a tape recording and that it was his practice to record important or sensitive discussions. He agrees that this particular recording was somehow lost or destroyed. Noye denies that he was challenged about the delivery of these materials by Gwilliam. Ayton says that he never authorised Noye to give confidential materials to Roddan. However, he has accepted that he had spoken, in general terms, to Noye to the effect that he should do what was necessary to proceed with and facilitate the resolution of the inquiry which, incidentally, involved determining the dispute over the ownership of the Newton diamonds.

580 The case against Noye that he unlawfully disclosed the soil analysis reports in such a situation seems to be very weak, because it is almost inconceivable that Noye would dishonestly deliver confidential materials to Roddan in the presence of Gwilliam. It is far more probable that, through mistake, misinterpretation or otherwise, Noye believed that he was entitled to deliver materials to Roddan, which would be available in any event in the interpleader proceedings, and that by doing so would facilitate the determination of the crucial issue of ownership. In relation to the subsequent challenge by Gwilliam to Noye about the propriety of the delivery of the documents, it is a case of Gwilliam's word against Noye's.

581 Similarly, in relation to the alleged disclosure of the D'Anna report, Noye has always denied delivering that or any copy of it to Roddan. A close examination of the evidence reveals that this particular document was not recorded and identified at Roddan's home when the search was being carried out (see Exhibit 137), but only some days later when all the materials seized during that operation were systematically checked by officers at the third task force headquarters. Lavender had no recollection or record of seeing it during the search or of it being brought to his attention as the senior officer present (t/s 1920). The fingerprint analysis of the document said to have been discovered among Roddan's papers showed that there were fingerprints on it suitable for checking, but that they did not match the fingerprints of either Noye or Roddan (Exhibit 117, 8TB 1925). The submissions advanced by counsel for Noye are that the probabilities are that the copy of the D'Anna report was planted among these documents by a person, or persons, involved in the third task force inquiry and that this was probably Gwilliam who, by then, was intent on discrediting Noye. This is, of course, a very serious accusation made against a person who has not given evidence or had any opportunity in these proceedings to refute the allegation.

582 The difficulty, however, is that, as mentioned when dealing with the WAPOLINV investigations, Gwilliam overstepped himself in giving evidence against Roddan on oath in bail proceedings, swearing that he had observed certain things to have occurred involving Roddan on a specified date. Later investigations revealed that Gwilliam was away on leave on this date and could not possibly have observed what he alleged. This led to Gwilliam being charged with perjury and being ordered to stand trial on that charge. Inspector Robbins confirmed this (t/s 1660) and said that, later, the case did not proceed because the DPP presented a nolle prosequi on the charge against Gwilliam. The institution of such a charge of perjury against Gwilliam was also confirmed by Assistant Commissioner (Crime) Ayton (t/s 1892) and by Inspector Lavender (t/s 1920, 1922 - 1923).

583 Accordingly, when it comes to an issue of credibility between Gwilliam and Noye in relation to the D'Anna report, or in relation to any other matter where it is only Gwilliam's word against Noye's, it seems very unlikely that Gwilliam could have been put forward by the prosecution as a trustworthy witness or, if he was, that he would be accepted as such.

584 There is an important dimension of timing to this aspect of the case because the charge of perjury against Gwilliam was not laid, until about 1997. This was, according to Inspector Robbins, long after the charges were first preferred against Noye. During the critical period of the second half of 1993 I am not satisfied that, despite lack of co-operation by Gwilliam with the IAU investigation and other criticisms which have been levelled at the Lavender/Gwilliam operation and the influence upon it of Corfield and the Argyle security team, there was any real reason for Inspector Robbins to doubt the truthfulness of a factual account of direct observations given by Gwilliam. Accordingly, the question is not whether, after 1996 or 1997, Gwilliam was an untrustworthy informant in relation to charges concerning the unauthorised disclosure of confidential information but, whether, in November 1993, Robbins lacked any honest or reasonable belief in the reliability of the information relating to these matters which had been supplied to him by Gwilliam. I am satisfied that he did not and that, at that stage, Robbins regarded Gwilliam as a reliable informant, even if he was not a fully compliant and co-operative colleague. The loss of confidence in Gwilliam which later developed, including within the DPP, occurred progressively over a longer period and obviously must have been near total by the time the perjury charge was laid.

585 What this reveals is that large parts, indeed critical parts, of the case to support the charges laid against Noye relied upon the oral evidence and credibility of Lynette Crimmins and, in relation to the unauthorised disclosure charges, of Sergeant Gwilliam. That, essentially, was the critical information available to Inspector Robbins when the charges were laid.

586 In any case where a plaintiff is seeking to prove malicious prosecution it is, of course, vital to identify and evaluate the material available to the prosecutor and relied upon for laying the charge. In many instances this will be disclosed by the content of the brief for the prosecution. In this case a compendious brief presented by the DPP is in evidence as Exhibits 107 and 108 (constituting four bundles of material being STB1, STB2, STB3, STB4 and STB5). However, in this present case it is not possible to look exclusively at those materials or, indeed, at all of them. This is because, as the case developed, the DPP gave formal notice that large portions of the materials previously put forward in the brief would not be led in evidence at any prosecution. A list of the evidence in the brief which the DPP said would not be led is to be found in Exhibit 41 (13TB 3077 - 3148). Further, it is apparent from the examination of the brief (Exhibits 107 and 108) that many of the statements comprising it were prepared and obtained well after November 1993 when Noye was first charged. This is not, in itself, unusual, because often charges may be laid in the knowledge that evidence is available from a reliable witness to prove some aspect of the case but that a statement has not yet been prepared.

587 Nevertheless, a number of matters of significance do emerge from this brief, besides the accounts of events given by the persons principally concerned which have already been set out and analysed so far. In particular:

(a) The statement of the sergeant in charge at the Gnowangerup Police Station who dealt with Roddan over the stolen firearms, reveals that he was first phoned about the matter by Noye on Saturday 22 January 1993 - that is, before Noye had had his first major interview with Superintendent Watson and Robbins and was then told not to contact Roddan - and that this officer had, himself, queried why Roddan had been permitted to transport stolen firearms. This sergeant revealed that Roddan did not hand in the firearms to the police station at Gnowangerup but, rather, visited the owner and obtained payment for them before going to the police station to explain his visit. Roddan attempted to justify this very unusual conduct by saying that he was working undercover for Noye and other officers of the CIB in trying to track down stolen firearms. (Another example of the brazen effrontery of Roddan's pretences.)

(b) Sergeant Thoy gave a statement describing his involvement in the first stage of the inquiry, but also setting out meetings which he had with Gwilliam and Noye together, during the course of the second phase of the investigation. This revealed a greater readiness by Thoy to provide information, co-operate and assist in the investigations than Noye himself had reported. Thoy also stated that Noye had told him that Roddan had claimed that he had paid a man in the Police Force $25,000 to ensure the return of the diamonds in police possession, but that Noye did not believe this and thought that Roddan could not be believed and was grandstanding. He also related a "volatile discussion" between himself, Gwilliam and Noye, in which Thoy maintained that there was enough evidence to charge Roddan and Crimmins with conspiracy to steal, but that Noye would not accept this.

(c) Zanetti made a statement which said that, at an early stage of the inquiry, Corfield had complained to him, saying that it was strange that Noye had been seen having coffee in a café with one of the suspects (obviously Roddan). Zanetti sent for Noye and put this matter to him. Noye stated that he had had coffee with Roddan and was only endeavouring to gain his confidence. Zanetti told Noye that it was his inquiry but that he should be careful how he went about things. This led to a conversation between them in which both discussed whether or not Argyle/Corfield was disclosing everything to the police; and, had a similar conversation in relation to the investigation conducted by Thoy and Gwilliam. Shortly after this, an article appeared in The Sunday Times which was not helpful to the inquiries.

This suspicion, whether justified or not, coloured Noye's view about the reliability of information and opinions coming from Corfield and his team. This distrust by Noye, of the Argyle representatives, does not seem to have been identified or evaluated as a potential reason contributing to the views set out by Noye in his report of September 1992 (Exhibit 3).

This disposition by Argyle, to attempt to run its own scrutiny of the police investigation, also serves to explain the very close working relationship which developed between Corfield and his staff, and Gwilliam and Thoy in the third stage of the inquiry, and the consequent close participation of Argyle personnel in all aspects of that operation. Clearly, once Argyle had found police officers who were receptive to their views and opinions, they sought to increase their assistance and influence over the shape and direction of the inquiry including, as I have previously concluded, by offering encouragements for the co-operation of Lynette Crimmins.

This, otherwise minor, incident is significant for two reasons. First, it suggests, and, also because of Robbins' disclosures in the WAPOLINV interviews, I conclude, that Argyle, through Corfield and his agents, was keeping surveillance on Roddan, Noye and others from time to time. Further, by way of suggestion to police officers when opportunity presented itself, Argyle sought to influence the direction of the inquiry. Second, that Zanetti and Noye both suspected, and that their suspicions reinforced their mutual views, that Argyle was not being entirely frank or fully co-operative with the police so that, accordingly, there may have been a need for some reserve by police officers in dealing with or accepting views put forward by the Argyle security officers.

(d) There is a statement from Robert Gardner, the prospector who was working a gold mine at Bull Finch and who had entered into a business venture with Roddan in connection with that mine. This statement, obtained by Detective Schubert as part of the third phase of the investigation, gives a very long account of Roddan bringing diamonds to Gardner for safe keeping, or for security for debts, and of frequent admissions by Roddan to Gardner that he was getting diamonds illicitly from the Argyle mine. Noye had, himself, interviewed Gardner as part of his inquiry and reported on Gardner's evidence in Exhibit 3 (2TB 214 - 217 and annexure 6). The information which Gardner gave to Noye was less extensive than set out in the later statement provided to Schubert, but, nevertheless, directly implicated Roddan in stealing from Argyle and being in possession of large numbers of apparently stolen diamonds. Despite this, Noye reported that he rejected Gardner's credibility, apparently because he did not accept Gardner's statement that he had seen "dirty diamonds" (meaning rough diamonds with traces of soil or minerals attaching to them). This seems to be a very flimsy reason for rejecting such potentially important evidence. I do not doubt that, in the events which happened, it caused Robbins and others at the IAU to entertain serious doubts about Noye's objectivity. When this is compared with other flimsy reasons expressed by Noye to reject statements which clearly incriminated Roddan, given by Raelene Shaw and by Charles Devenish, the doubts about that objectivity could only have been increased.

(e) There is a statement from a Darryl Hart, a real estate agent of Gingin, who describes a series of transactions involving the sale or purchase of land by Roddan; including some where Roddan offered to make payment in diamonds. His account describes threats being made by Roddan to a bank manager, and to Hart himself, when one of the properties purchased by Roddan was put up for sale by a bank mortgagee. Hart confirmed that he had had several discussions with Noye about Roddan's dealings, including the offer by Roddan to use diamonds for sales and the threats made. None of Hart's information is referred to in Noye's report (Exhibit 3).

(f) There is a deposition from Christopher Smith, a chief consultant geologist specialising in diamonds for CRA Exploration Pty Ltd. He identified a report dated 5 July 1992 which he had prepared and forwarded to Detective Sergeants Noye and Gwilliam which, itself, was a copy of an earlier report which he had prepared for Corfield of Argyle in December 1989. The report which he identified was shown to him by Inspector Morskate in September 1994. This copy had markings on it which he did not recognise. He described the report as a sensitive document written for the information of the police.

(g) There is a deposition from Schubert, a detective on the third Argyle Diamond inquiry team, which included the following points of significance:

• When he interviewed Noel Newton on 2 December 1993, in company with Gwilliam, he discovered that there was a difference between the reference to "pre-acid diamonds" contained in Newton's statement about the Roddan diamonds which was on the police file, and an earlier version of Newton's statement about this matter which was in Newton's own possession, bearing a typist's code "S/488/23492/JF", which referred to the diamonds which Newton was bringing in as being "obviously pre-acid".
• Schubert was present on 8 August 1993 at the execution of a search warrant at Roddan's home at 50 Lakeshore Close, Ballajura. Gwilliam was searching the office at the house and was seated at the desk sorting through documents when he showed Schubert a document, which he had apparently found, and which was a copy of the AFP D'Anna report (W921120). This surprised Schubert and later, when the documents were returned to the police office and sorted over time, the D'Anna report was again located and shown to him by Gwilliam.

(h) There is a deposition from John Burton, the superintendent of security at Argyle. Among the matters referred to in that statement are:

• From the outset of the second inquiry involving Noye, Burton made it clear to Noye that Argyle would fund any requests which he made to travel anywhere to interview suspects or witnesses in relation to the inquiry. He suggested that Noye should travel to Melbourne to interview Barry Crimmins at Argyle's expense, but Noye said there was no need for this to be done because he had spoken to Crimmins by telephone.
• Noye, in cross-examination, maintained that Argyle would not finance a trip for him or any other investigator to go to Victoria to see Crimmins. He said that Burton's statement is not true in that respect. This also involves a contradiction of the statement provided by Gwilliam on the same issue.
• In May 1992, Burton passed on to Noye some information which had been conveyed to him by the AFP about a prisoner named "D'Anna" and his association with Roddan. Later that same day, Noye telephoned Burton to say that he, Noye, had attended at the prison to interview D'Anna, but that just before he had arrived D'Anna had gone mad, attacked a prison officer, and had been confined in a straightjacket and put in Graylands Hospital.

(There is other evidence in the brief, from the prison authorities at Casuarina Prison, where D'Anna was confined, and from D'Anna himself, that he had never been interviewed by any State police officers about Roddan; that he had never been admitted to hospital since being in prison; and, that he had never been taken to Graylands Hospital or been tranquilised or constrained because of any violent episode.)

• Burton developed the opinion that Noye was not being objective in the conduct of his investigation and, as a result of a discussion which Burton had with Gwilliam in June 1992. He and Corfield were present outside CIB Headquarters when Gwilliam asked Noye if he was going to write the file off, and Noye replied that he was. Burton says that in August or September 1992 Noye formally advised him that he was in the process of compiling his report and would recommend that the investigation should not proceed on the basis of insufficient evidence and that he, Noye, personally believed that Roddan and Crimmins had not committed any offence. He also said that, earlier, Noye had tried to persuade him to have Argyle drop the civil action against Roddan (or his company Jucara Pty Ltd), for the recovery of the diamonds in the interpleader proceedings, on the basis that Argyle did not have a case. Burton refused and went to the police and complained to Assistant Commissioner Thickbroom, expressing concern about the direction of the inquiry and the apparent social relationship between Roddan and Noye. This led to Corfield and Burton meeting with Ayton of the IAU to give him a briefing. However, Argyle later received advice from Ayton advising that the investigation had been terminated.

(i) The statement of Sergeant Gwilliam is a lengthy statement detailing Gwilliam's history in the first stage of the inquiry, as assistant to Noye in the second phase, and then on the Lavender task force. Significantly, Gwilliam stated the following:

• At the early stages of the Noye phase of the inquiry he had attended with Noye at the offices of Argyle and met with Corfield and Burton. At this meeting, and indeed on subsequent occasions, the Argyle security officers indicated that their company would willingly pay for travel and any scientific analysis considered necessary as part of the inquiry.
• Gwilliam gave a series of examples which, he said, showed that Noye was ignoring, or understating, the significance of available evidence which suggested that the Newton diamonds were from Argyle, and that Roddan was admitting to third persons that he was involved in stealing diamonds from the mine. He also gave instances of what he considered to be inappropriate meetings or telephone discussions between Roddan and Noye. Gwilliam raised with Noye his view that Lynette Crimmins was probably aware of the relationship between her husband and Roddan and that she had a relationship with Roddan and should be interviewed. He was instructed to pursue his inquiries with Devenish as Noye said that he would attempt to obtain information from Lynette Crimmins. (His report, Exhibit 3, and his subsequent statements reveal that he claimed that he never regarded her as a suspect.) Gwilliam became suspicious of Noye's association with Roddan and began withholding information from Noye (including a further version of Devenish's statement).
• Gwilliam says that at his second meeting with Noye and Roddan at L'Alba Café, Noye handed Roddan a beige manila folder containing documents which Roddan opened, allowing Gwilliam to see the top document. It was a list of the Lamproite samples taken at the Argyle mine. He questioned Noye about this after the meeting but Noye dismissed his concern, saying that the documents related to the civil interpleader proceedings. As a result, he became extremely suspicious of Noye.
• Gwilliam pressed Noye to follow up on the information available from Darryl Hart, the real estate agent at Gingin, about Roddan's land dealings and use of diamonds. Noye was reluctant to follow this matter up. He eventually said that he would visit Hart to discuss the matter with him but, sometime later, told Gwilliam that Hart had no information of value to give.
• Gwilliam also said that he was present when Thoy had extensive discussions with Noye about evidence available which implicated Roddan; the importance of the scientific evidence; and, when Thoy spoke of his concerns regarding corruption arising from the manner in which Thoy had been treated when he had attempted to continue his inquiry. Gwilliam also said that Noye had told him, after they had had a briefing from the AFP about the D'Anna report, that before he could interview D'Anna at the Casuarina Prison, D'Anna had gone mad, had had to be sedated and had been taken to Graylands Hospital, and that that was the end of any help that he might be for the inquiry.
• Gwilliam fell out with Noye during the course of the inquiry over Noye's intention to write-off the investigation. He said that he wanted nothing to do with him or the decision to write the inquiry off. He told Argyle security about this development and went off on long service leave on 15 June 1992.
• Gwilliam also said that among the documents seized during the search of Roddan's premises was the original copy of the D'Anna report supplied by the AFP to Noye.
• Gwilliam says that when he withdrew from the Noye inquiry a comprehensive set of notes, tape-recorded cassettes of conversations with Roddan, occurrence books, and transcripts from listening device instruments placed in Roddan's home were missing, together with many of his notes of conversations with Roddan. He maintained that only Noye had access to the locked cabinet containing these materials and that the missing documents have not been found.
• The deposition from Sergeant Gwilliam is not dated but I am satisfied that the probabilities are that the substance of that statement, at least insofar as it concerns the conduct of Noye, was made known by Gwilliam to the officers of the IAU during the course of its investigations before Noye was charged.

(j) There is a second lengthy deposition from Sergeant Gwilliam as part of Exhibit 108 (2STB 277 - 351). This, too, recounts Gwilliam's role at all stages of the investigation, but contains more instances and greater detail of alleged inadequacies by Noye when conducting the second phase of the investigation and of the development of what he regarded as an inappropriate relationship between Noye and Roddan.

(k) There is also a lengthy deposition from Lynette Crimmins but this is, in effect, a compilation of her earlier statements which have already been described. It is sufficient to say that it contains direct evidence implicating Noye in a corrupt attempt to write-off the police investigation.

(l) There is a second statement of Richard Corfield, Argyle's manager of security (Exhibit 108 (3STB 595 - 630). This comprises a detailed commentary by Corfield on a series of points made by Noye in his September 1992 report (Exhibit 3) and contains a series of explanations, acceptances, refutations or qualifications of points made by Noye in the report. In short, it contains Corfield's response to the view formed by Noye that Roddan could have acquired, via Horovitz in Geneva or other sources in Antwerp, large quantities of gem-quality Argyle diamonds, It emphasises the explanations given by the Argyle security officers that this was either impossible or so highly improbable as to require rejection as a conclusion, and giving detailed explanations as to why that was so.

The brief also contains many other statements from other witnesses describing meetings or dealings which they had with Roddan during which he told them, or showed them, details of his dealings in diamonds. This involved large numbers of diamonds, both cut and uncut, the storage of diamonds for safekeeping, the importation of diamonds from Hong Kong or Singapore, smuggling diamonds past Customs into Australia. It also details other instances indicating that Roddan was dealing in diamonds of all sorts, on a large scale, including producing diamonds to jewellers for fashioning and mounting, buying or delivering jewellery, including diamonds, to various women, and also using diamonds for the purchase, or partial purchase, of property, racehorses or the repayment of debts.

(m) There is a statement from Detective Edward Rowe of the Proceeds of Crime Unit in Perth describing action which he took in July 1993 to investigate some financial dealings of Roddan. This included obtaining warrants to search various banks and other financial institutions relating to accounts operated by Roddan or associated entities between 29 March 1988 and 12 May 1993. His inquiries revealed that a total of more than $6.447 million in funds or deposits had been credited to Roddan or Roddan-related accounts in banks or solicitors' trust accounts in Perth between 29 March 1988 and 12 May 1993, mostly being transfers from Switzerland. This amount includes a sum of US$400,000 paid to the McLeod & Del Piano solicitor's trust account which, with other credits to that trust account, between 30 September 1988 and 18 September 1992, totalling $3,235,997. Detective Rowe executed a search warrant at the offices of another firm of solicitors acting for Roddan, Jackson McDonald, and seized a number of documents, including a number of CRA Exploration Pty Ltd scientific analysis reports and associated correspondence relating to scientific tests for various diamonds.

(n) The brief also contains a statement from several legal practitioners relating to the interpleader proceedings. First, the solicitor for Argyle Diamonds, Mr Konrad Mony de Kerloy, described the ordinary legal procedures for an interpleader action and how the interpleading party, in this case the Commissioner for Police, would take no part in the litigation, apart from its initiation, and was not required, and in this case was not asked, to give discovery of documents. Mr de Kerloy described how discovery by Argyle, and by Roddan's company Jucara Pty Ltd, had been given by the exchange of lists of documents in the ordinary way and stated further that neither he nor anyone in his firm had, on behalf of Argyle, requested the police to provide documents or information relevant to the discovery process.

(o) A barrister, Mr Malcolm McCusker QC, provided a statement which described how he had received a telephone call some time in 1992 from Mr Majteles, a solicitor then at the firm of Majteles & Salmon, enquiring if he, McCusker, would be available and willing to act for Roddan, of Jucara Pty Ltd, in a civil dispute with Argyle over the ownership of some diamonds. McCusker indicated that he would be prepared and available to act if properly instructed but Majteles said that at that stage he was not being formally briefed and the call was simply to enquire about his availability and that he, Majteles, would follow up later if necessary. Sometime after that initial approach McCusker received a message from his secretary that a Detective Sergeant Noye had telephoned and wished to speak to Mr McCusker. McCusker, at this stage, had no prior knowledge of Noye, nor any inkling as to what he might want. However, he telephoned as requested and spoke to a male person who said his name was Noye and that he believed that McCusker was acting for Roddan. The person speaking told McCusker that he could help Roddan in defending the allegation by Argyle which he had investigated and had found to be without foundation. McCusker regarded this as unusual, but thanked the person for the offer and explained that he had not at that stage been formally briefed, but would relay the details of the call to Roddan's solicitors Majteles & Salmon. McCusker later passed on the details of that conversation to Majteles & Salmon. Some time later, McCusker was handed another note by a member of his staff to say that Detective Sergeant Noye had telephoned to speak to him to explain that he was going away for some time but that he could be contacted on his return. McCusker never met with Noye, nor did he receive any brief to act for Roddan or Jucara Pty Ltd.

(p) The brief includes a statement of the then Deputy Commissioner Ayton, who had been nominated by Zanetti to provide guidance and advice to Noye in his conduct of the second phase of the diamond investigation. Ayton records that on 18 March 1993 Noye came to him to request that he should accompany him to meet Lindsay Roddan. A meeting was arranged for the two officers to meet Roddan at L'Alba Café, Northbridge. In accordance with his practice in such circumstances, Ayton took with him a concealed tape recorder which was used to record the conversation. The meeting lasted about an hour, during which Ayton's role was mainly to listen. He said that he regarded the conversation as rambling, covering many subjects and, though it did touch on one or two of the parties involved in the Argyle inquiry, it seemed to be quite pointless. At the end of the conversation, and back at the IAU office, Ayton warned Noye to be careful of Roddan because he regarded him as a dangerous and untrustworthy person ("a shonky bastard"). Ayton retrieved the two cassettes tapes which had recorded the conversation and shortly afterwards went on leave. Detective Inspector Storm took over his role as advisor to Noye. Sadly, Inspector Storm died suddenly on 25 April 1994. In late 1992 Ayton received the three volumes of Noye's report (Exhibit 3) but because of his workload did not attempt to read them. He gave the report to his staff officer, Inspector Round, to examine and advise. The report was later returned by Round, together with minutes from Inspector Storm and Acting Commander Ghockson. These accepted the Noye report and recommendations and, consequently, Ayton notified Argyle by letter dated 28 November 1992 that the investigation was concluded.

588 This is not a complete account of all the information in the prosecution brief delivered against Noye and Roddan after they had been committed to stand trial. As indicated, the statements of many witnesses have been omitted. However, I am satisfied that the information summarised and reviewed was available, or at least the substance of it was available, to Inspector Robbins and his IAU team by the time the decision was taken to charge Noye with the criminal offences and the disciplinary charges. Many of the statements in the brief had not been formally prepared or signed before the dates of the charges, although some had. In some cases the statements in the brief comprise a consolidation and an expansion of previous statements made by witnesses or of the results of interviews which were noted or recorded. But, to the extent that I have made particular references to facts or allegations bearing on the propriety of Noye's conduct, I am satisfied that that information was available, even if not precisely in the form later delivered, to Robbins before the charges were laid.

Removal of Noye from duty and later from Police Force

589 After he had learned of the allegations made by Lynette Crimmins on 19 January 1993, Noye sought a report from the sergeant at that police station so that he could brief Zanetti. He also spoke to the officer in charge of the Vice Squad concerning claims which Lynette Crimmins had made about her involvement in prostitution. Later that afternoon he telephoned Crimmins herself to enquire about her health. He was told that she was being treated by her doctor. He enquired if she still wanted him to act on her complaint of assault against Roddan, but received a negative reply. Over the next days Noye made a number of inquiries into Lynette Crimmins' allegations of stolen diamonds. He was informed on 29 January 1993 by Inspector Rowtcliff that the CIB administration was considering reopening the inquiry and was asking for his recommendations about staffing.

590 On 2 February 1993 Noye spoke to Inspector Round about a resumption of the Argyle inquiry. On 3 February, in company with Detective Fyfe, he interviewed Roddan about the incidents at his home on 19 January and the allegations by Lynette Crimmins that he had offered Noye a $200,000 bribe in relation to the diamonds report. Roddan became abusive and repudiated Crimmins' allegations as lies and attempted to make a complaint against her for damage caused to his house. Notes of that interview were taken by Detective Fyfe and were sent to Superintendent Watson. On 9 February 1993, in company with another officer, Noye visited Lynette Crimmins and returned certain property to her. On the same day, Noye was called to see Assistant Commissioner (Crime) Ayton, went to his office and reported on Lynette Crimmins' conduct and allegations; his own visit to Barry Crimmins in Victoria the recent issue about the stolen firearms from Gnowangerup; and, the reopening of the diamond inquiry. Noye discussed the issue of the alleged bribe with Ayton and was told that Inspector Robbins was looking into it. He also informed Ayton of Lynette Crimmins' allegation that Corfield had offered a $200,000 reward for information leading to the apprehension of Roddan and Barry Crimmins for stealing diamonds. He was then asked to give his opinion as to whether or not that was true.

591 On 16 February 1993 Noye accompanied Detective Sergeant Allan Carter to the Gioia Café, at the latter's request, to introduce Sergeant Carter to Roddan and, having done so, left. On 16 February 1993 Lynette Crimmins called Noye at his office several times and abused him over the phone. She also abused another detective who answered the phone, alleging that he, Noye, was in trouble and would be named in the press as "a corrupt cop". Noye thereupon asked to speak to Deputy Commissioner Zanetti, but as he was unavailable, asked to speak to Assistant Commissioner (Crime) Ayton. He, too, was unavailable. However, Noye made an appointment to see Ayton on 18 February 1993 and met, as arranged, with Ayton, together with Superintendent Watson. He told them of Lynette Crimmins' allegations, denying them, and requested that the senior officers should investigate them. He was told that an IAU investigation had commenced and he was asked if he agreed to be interviewed by Watson and he agreed. Arrangements were made for him to be interviewed by Superintendent Watson and Inspector Robbins the following day, 19 February 1993, and this took place. A record of that interview (Exhibit 19 (6TB 1317)) has already been reviewed.

592 Over the next few days Noye received several telephone queries about the matter from Inspector Robbins and provided information as requested. On 19 March 1993 Noye says that Gwilliam told him that he had heard from IAU that Noye was suspected of having received a bribe of $200,000 from Roddan and had given $100,000 of the money to Superintendent Kiernan. Noye vehemently denied this allegation, said he was sick and tired of these false allegations, and that Superintendent Kiernan had nothing to do with his investigations. On 22 March 1993 he reported Gwilliam's allegations to Zanetti and Ayton, in company with an indignant Superintendent Kiernan. They both requested that a full inquiry be conducted into the allegations. As ordered, Noye made a report to Ayton about Gwilliam's allegations. It turned out that Gwilliam denied making any such allegation and, in those circumstances, Ayton said he was unable to take the matter further and that he had consulted Commissioner, Bull in that respect.

593 Noye provided further information to officers conducting the investigation from time to time. He was told at the beginning of May 1993 that Robbins was taking over the inquiry and that all documents were to be delivered to him, and that was done. According to Noye, he checked the materials that were being delivered and they included the original of the D'Anna report which was in its correct folder on the investigation file. From early May 1993 Noye was transferred to other duties.

594 On 12 August 1993, while engaged on other duties, Noye collapsed at work after complaining of feeling ill and being unable to concentrate. By then he had become aware of gossip among police officers that he was under investigation. He began to feel that he was being ostracised by a number of other officers. A few days later he sought medical advice from the police doctor and was put off duty for two and a half weeks for stress (see medical certificates of Dr B R Dare, Exhibits 45(1) - (3), 13TB 3210 - 3213). On 13 August 1993 there was an article published in The West Australian (Exhibit 64, 13TB 3296) which referred to evidence given by Inspector Robbins in the Perth Magistrates Court that he had reason to believe that Roddan had a corrupt liaison with one or more police officers. Although Noye was not named in this article, it was sufficient to draw attention to him in police circles and caused him severe distress. A similar article appeared in The Sunday Times newspaper on 15 August 1993 (Exhibit 65, 13TB 3297).

595 Through his solicitor, Noye made a complaint to the Commissioner of Police asking for an investigation to be made into the matter of the alleged $200,000 bribe asserted by Lynette Crimmins and Gwilliam. On 16 September 1993 Noye was again interviewed by Inspector Robbins and Superintendent Watson in the presence of his own solicitor (Exhibit 143). He was not asked in that interview anything about unlawful or corrupt disclosure of the D'Anna report.

596 Further articles appear in the press in early October 1993 making reference to alleged police corruption in connection with the Argyle diamond inquiry. Again, Noye, through his solicitor, complained about this, demanding an inquiry, this time directly to the Commissioner of Police. The response received was to refer the complaint to the Ombudsman.

597 As already stated, Noye was charged by Robbins on 12 November 1993 and was immediately suspended from duty (Exhibits 5 and 5(1)). Robbins arranged for a press release to be made by the Police Force following these charges and, over the succeeding weeks and months, there was considerable press and television coverage of the charges which, Noye says, caused him considerable distress. Some of the press articles appearing in connection with this matter and covering the period from September 1993 until February 1994 are Exhibits 57 and 58 (expressly referring to Noye blocking a police investigation and corruptly assisting an insurance claim).

598 Exhibits 59 - 61, 68 - 91, and 93 - 95 are press articles published during the period from September 1993 until October 1998. That is, shortly before the period when Noye was charged until after the DPP announced that a nolle prosequi had been filed and would not proceed with the charges against Noye. To the extent that the articles relate to matters appearing in the press before the charges were laid, it is evident that they arise from leaks from within the Police Force, which I find, on all the probabilities, came from the task force operated by Gwilliam. However, from the time Noye was charged on 12 November 1993, it is evident that Robbins authorised a press release, as, from then on, very considerable press attention was given to the charges against Noye and to the progress of the charges against Roddan to which, by then, Noye was inextricably linked in the press attention.

599 Very substantial press coverage continued throughout the lengthy committal proceeding, as well as at the time that Barry Crimmins and Lynette Crimmins pleaded guilty and were sentenced, and again during the Roddan trial, culminating with the filing of the nolle prosequi against Noye. In the aftermath, a number of persons, prominent in the investigation, and in parliamentary discussions, called for a public investigation or Royal Commission to look into the matter.

600 Suffice it to say that the publicity was extremely extensive. The allegations involving Noye were of very considerable personal and public importance. The publicity was of a kind which, inevitably, tended to cause him disgrace, destruction of reputation, loss of professional or other career opportunities and general humiliation. The Argyle diamond investigation and the long history of ineffective police investigations became a public cause célèbre and those who were alleged to have participated corruptly in it were depicted as, and I have no doubt came to be regarded as, criminals whose conduct was not merely grossly dishonest and destructive, but also dangerous and pernicious for the operation of the Police Force and law enforcement in the State generally.

601 By letter of 20 January 1997 (Exhibit 40), Assistant Commissioner MacKaay notified Noye that, while he had until then been suspended on full salary, the recent adjournment of his trial meant that the Police Force proposed to apply to him the policy, introduced in August 1996, of suspension without pay, under which he would be eligible to apply for permission to engage in secondary employment.

602 On 12 October 1998 Noye attended on Dr Sacks at the Perth Medical Centre, who diagnosed a stress-related problem and certified that he was unfit for work for four weeks. He referred him to the psychiatrist Dr Tannebaum (Exhibit 46). Dr Tannebaum saw him in consultation and made a diagnosis of multiple symptoms of significant depression and serious trauma in a post-traumatic syndrome arising from events over the preceding five years. He considered the depression to be treatable but concluded that he would not be able to return to work satisfactorily with the Police Force. The details of this diagnosis and recommendation are in Exhibit 47 (13TB 3215 - 3216). A series of further medical investigations followed and on 23 February 1999 Dr Tannebaum reported to Dr Dare, of the Health and Welfare Branch of the Police Department (Exhibit 150, 13TB 3220A and 3220B), setting out Dr Tannebaum's opinion that Noye was not medically fit to return to the Police Force but that it might be possible for him to slowly rebuild a life in some other occupation.

603 Noye was required to submit to a medical board assessment and was later served with a notice to show cause why he should not be removed from the Police Force on medical grounds arising from his conditions of anxiety and depression (Exhibit 123, 13TB 3231). He agreed to retirement on medical grounds on 19 August 1999 (Exhibit 49). The staff officers responsible decided to take steps to have him medically retired (Exhibit 50). The Commissioner of Police notified the Minister of Police to that effect on 10 September 1999 (Exhibit 51). Noye indicated that he did not wish to appeal against this decision (Exhibit 52), and he was notified accordingly, with the retirement taking place at midnight on Thursday 14 October 1999 (Exhibit 53).

604 The Government Employees Superannuation Board decided that, in view of the medical evidence received, there should be a payment of total and permanent disability benefit to Noye (Exhibits 54 and 55).

605 Noye was reviewed by Dr Tannebaum again on 2 April 2003, who reported that there were still signs of persisting symptoms of lower level major depression. He was advised to remain on anti-depressants for at least 18 months and to undergo further review then (Exhibit 56, 13TB 3242).

606 With respect to future medical treatment, Noye said that his depression had largely been in remission in recent years, although it had flared up again as a result of this case. In cross-examination by counsel for Lynette Crimmins, Noye said that he had over 20 psychiatric consultations between 9 October 1998 and the end of 2003.

607 Until his collapse in August 1993, Noye had enjoyed good health and had undergone periodical health assessments within the Police Force. He had a clear report following his medical examination by a police physician in July 1990 and his health was then certified as being suitable for promotion (Exhibit 145, 13TB 3204 - 3209).

608 Noye was born on 16 January 1944 and, therefore, was aged 55 years at the time of his discharge from the Police Force on health grounds. He said in evidence, and it was not challenged, that it had been his ambition to remain as a police officer until he reached the age of 60 years and that if he had not been charged with these various offences the probability is high that he would have achieved that ambition. He also hoped that if he had continued in the Force he would have been promoted to the rank of inspector and, possibly, superintendent. He pointed to most of his contemporaries among the group of detective senior sergeants who had achieved promotions over the past 10 years by becoming inspectors and a smaller number becoming superintendents and, in one or two cases, assistant commissioner.

609 Noye's salary at the time of retirement was about $61,000 per annum, inclusive of allowances. Since his retirement he has had occasional employment as a security guard, averaging about 20 hours a week, and a small amount of specialised inquiry work for legal firms. His present income is about one third of his salary on retirement. He continues to feel under a cloud as a result of being charged and has become socially withdrawn.

610 He formulates his claim for damages on the basis of the loss of salary, including the loss of an increased salary because of the probabilities that he would have been promoted; the costs of defending himself in the legal proceedings on which he was prosecuted; and, for the damage to his health and reputation flowing from these charges.

611 On this basis, the plaintiff's claims for damages are formulated and set out in Exhibit 153, a report prepared by his industrial relations consultant, which calculates alleged loss of salary and fixed allowances and employer superannuation contributions for the period 19 October 1999 until 6 January 2004. Three scenarios are postulated. The first, on the basis that Noye would have remained at the rank of a senior sergeant for the whole of the period under consideration; the second scenario is that he would have been promoted to, and served at the rank of, inspector for the whole of the period from 19 October 1999 onwards. The third scenario is that he would have been promoted to, and remained at, the rank of superintendent from 1999 for the whole of the period from 19 October 1999 forward.

612 Had he remained with the Police Force until the age of 60 years, Noye would have retired, barring other adverse eventualities, on 16 January 2004. On this hypothesis, he would have become entitled to his full superannuation payout, as well as enjoying the benefits of whatever other opportunities of private employment or business which he might then have chosen to pursue.

613 Noye had been promoted to the rank of detective senior sergeant in June 1991. The question which therefore arises is that if the probabilities are that he would have been promoted, except for the charges arising from the Argyle inquiry, when that promotion might have taken place? Obviously, this had not occurred before November 1993, when he was suspended from duty, and there is really no basis in the evidence to assume that it would have occurred before 1999 when the damages calculations have been commenced.

614 However, at the trial, former Assistant Commissioner (Crime) Ayton was asked whether or not he would have expected Noye to have achieved promotion to the rank of inspector had he remained in the Police Force. His opinion was emphatically in the negative. Ayton pointed to several aspects of Noye's career, indicating that, while he had the experience and competence to serve as a detective senior sergeant, it was his own impression that Noye did not have the competencies for more senior rank and that with the new merit-based promotion system he believed it was unlikely that Noye would have successfully attained a promotion. Counsel for the first defendant submitted that there were incidents in Sergeant Noye's service record which would count against him in any application for promotion; namely, a record of some breaches of police regulations. The reference to which counsel for Inspector Robbins referred related to an episode in August 1992 when Noye improperly released information from the police computer to an adoption agency. This was in breach of the regulations and he was fined $200 by the then Commissioner.

615 Noye said that he anticipated promotion to the rank of inspector within four or five years after 1991. At that time (1991), promotion was based on seniority and only later changed to a merit-based system. The change from seniority to merit-based promotion system occurred, according to Noye, in 1992 or 1993.

616 More significant, however, was the evidence of the general opinions about the limited capacity of Noye to undertake more serious or complicated inquiries, including the original controversy about his suitability for appointment to the second phase of the Argyle investigation. His method of pursuing that investigation was, to say the least, unusual. There is no doubt that, all considerations of impropriety and corruption aside, he failed to recognise the significance of a considerable body of evidence, none of which perhaps was conclusive in itself, but which together showed a strong circumstantial case against Roddan and Barry Crimmins. His degree of fraternisation with Roddan was very indiscreet, and it contributed largely to suspicions which other officers formed about him. His persistence in the view that the non-conclusive nature of the scientific evidence available relating to the Argyle stones, while justified to a point, does not appear to me to justify acceptance of the hypothesis that it could not be proved that some of the Newton gems came illicitly from the Argyle mine.

617 There are strong reasons to accept the view, floated by Superintendent Watson with Noye towards the conclusion of the 16 September 1993 interrogation (Exhibit 19, 143, pages 114 - 115), that the investigation was really beyond him. This, itself, is not a criticism, for every person has his or her limits, but it does suggest, and I find, that it is improbable that, had he not been charged, Noye would have been promoted to the rank of inspector or beyond. The Argyle inquiry was an acute embarrassment for the entire Police Force and the fact that Noye had got his conclusions so wrong, while not dishonest, would be likely to damage significantly his further prospects of advancement in the Force, even if he had not been suspected of dishonest or illegal conduct.

618 Any assessment of damages, therefore, could, in my view, only proceed on the basis that Noye would have continued as a senior sergeant and that would also be subject to contingencies and the possibility that he may himself have decided to take earlier retirement, perhaps because of disappointment at the lack of promotion or because of the consequences of the failure of his investigation in the Argyle diamond case. That seems to me to be the only basis upon which any assessment of damages could be undertaken.

Evidence of former Assistant Commissioner (Crime) Ayton

619 Former Assistant Commissioner (Crime) Ayton was called as a witness for the defendant to the first action, Robbins, giving evidence in the form of a witness statement (Exhibit 163), supplemented by oral evidence and cross-examination. He confirmed the statement for the prosecution brief which he had prepared in 1995 in relation to the indictment against Noye (part of Exhibit 108, 5STB 1045 - 1049). By that statement he confirmed that in February 1992, Deputy Commissioner Zanetti told him the Argyle diamond inquiry was to be reopened and that Noye was to be put in charge.

620 Zanetti observed that Noye did not know much about fraud and asked Ayton to give him a hand if he had trouble, and Ayton agreed. He had one initial briefing with Noye to hear about the matter generally and, then, on 18 March 1992, Noye asked if he would meet Roddan with him. Ayton agreed and they met Roddan that day at the L'Alba Café, with Ayton wired-up with a concealed tape recorder. Ayton confirmed that the conversation lasted for more than an hour on a variety of subjects and, afterwards, back at the IAU office, he told Noye, in blunt terms, to be careful of Roddan because he was dangerous and untrustworthy.

621 Shortly after that meeting, Ayton was away on a training course in New South Wales and then on leave until 20 July 1992. On 8 August 1992 he was promoted to Assistant Commissioner. From then on, Noye was working under the command of Inspector Storm. Ayton learned of the progress of Noye's inquiry from Storm, and believed that it was progressing satisfactorily. Ayton had one or two discussions with Noye about the investigation in the following weeks, but did not receive any specific request for assistance, nor did he give any direction.

622 He received Noye's draft report (three volumes) in late 1992 (about September) but he did not attempt to read it. Ayton gave the draft report to his staff officer Acting Superintendent Round, who read it and reported later by a memorandum dated 8 October 1992 (Exhibit 164). Generally, this approved of Noye's investigation which was said to be "adequate", although there were a number of observations. Superintendent Round does not, however, appear to have seen any serious shortcomings in the Noye report. On reading Round's report, Assistant Commissioner (Crime) Ayton prepared a manuscript note (Exhibit 165) asking Round for further observations on two aspects of the report, but there is no evidence of any response.

623 On the basis of the report, Ayton advised Argyle by letter of 20 October 1992 that the investigation was finalised. This decision was taken after meetings between Ayton and Corfield on 11 August 1992 and again after discussions between Ayton and Corfield on 24 September and with Burton on 8 October 1992, when the Argyle personnel were expressing dissatisfaction with Noye and his familiarity with Roddan. (See Exhibit 166 at page 2.) In his witness statement (Exhibit 163), Ayton made the point that he did not have any managerial responsibility for Noye or his investigation and was just available to Noye as a resource, and that Noye only came to see him on two or three occasions. At the later meetings Noye simply updated him as to what was going on and did not ask for assistance or guidance, nor did Ayton offer any.

Copies of the soil analysis reports given by Noye to Roddan

624 Ayton says that he never authorised this, nor had any specific discussion with Noye about the supply of any such documents. He did not know what documents were involved in the interpleader proceedings but he would have regarded the provision of such documents without Argyle's knowledge and approval as improper. He denies having any discussion about these with Noye after the L'Alba Café meeting with Roddan, but says that he thought that he did speak to Noye about the provision of documents to Roddan's solicitors in relation to the interpleader proceedings, and would have been keen to ensure that the proper protocols were followed.

625 Many details of Ayton's evidence are confirmed by notes prepared from his contemporaneous diaries (Exhibit 166). On this document, with reference to the L'Alba Café meeting with Noye and Roddan on 18 March 1992, he noted: "At time issue was a low priority to me". From 20 January 1993 onwards there are a series of entries in Ayton's notes dealing with developments arising from Lynette Crimmins' allegations. These include reference to a meeting on 22 March 1993 between Ayton, Deputy Commissioner Zanetti, Sergeant Noye and Superintendent Kiernan, regarding the complaint by the latter two that Gwilliam had said there was a corrupt payment being made to Kiernan. This was followed, an hour later, with a note of a discussion which Ayton had with Gwilliam causing him to call for a report from Gwilliam and from Noye. He had a further conference on 31 March 1993 with Gwilliam relating to "a disturbing angle to the story", resulting in him referring Gwilliam to IAU and Ayton arranging to see Superintendent Watson as soon as possible. Then followed reference to a series of meetings with representatives of Argyle, and with Gwilliam and others relating to the Gwilliam task force. By mid September 1993 the press coverage of the Argyle investigation was intensifying and he had several meetings with Zanetti and then with the Minister for Police and in preparation for a briefing by Zanetti of the Premier.

626 There is a series of other references in Ayton's diary notes relating to internal discussions among the senior hierarchy of the police, including a note on 12 December 1993, which records that Ayton and the officers were concerned that the leaks to the press were probably from Gwilliam or Thoy and that Superintendent Hay was to discipline Gwilliam for his assertions against Inspector Lavender. By 23 December 1993 the notes show that Ayton was losing confidence in Gwilliam and that he needed to be brought under control.

627 This evidence, and Ayton's evidence and demeanour at this trial, clearly revealed him to be a senior officer determined to deal properly with matters, including the potentially embarrassing crisis presented by the developments of the Argyle inquiry. He was clearly very brisk, to the point and quick in dealing with his staff and with issues requiring decision. Former Assistant Commissioner (Crime) Ayton was not a man to temporise and, like other successful commanders with high responsibility, he demonstrated an "action this day" approach to any problem. Clearly, he did not regard himself as performing a role of general oversight of the inquiry or of Noye's investigations. He was there to answer any specific queries, or to deal with any particular requests for resources which Noye might advance. In the absence of these, his view was that it was Noye's responsibility as to how he conducted the inquiry. I have no doubt that this was in fact the case. However, it really meant that Noye had no regular detailed supervision of his inquiry, nor any regular periodical review of the adequacy of progress or of his line of approach. He was, in this regard, very much left to his own devices and, once Gwilliam withdrew from his inquiry, he was completely alone with no effective avenue for advice or guidance.

628 If there is to be any responsibility for the inadequacy of the supervision of Noye's inquiry it should rest with Zanetti, rather than with Ayton. Although Zanetti had other important and sensitive responsibilities of much greater priority to deal with, it did mean that Noye was unguided, in a field in which he was known to be inexperienced.

629 Ayton also confirmed that the reference in his notes, and in other evidence, to "Scorpion" was a reference to a group of private investigators who had been engaged by Argyle. He referred to the Scorpion personnel as "a shady bunch" and he suspected their motives. He observed that Argyle, through Corfield/Scorpion, was dissatisfied with the police investigation from the very beginning. In 1993 he, Ayton, had a conflict with Burton regarding the latter's interference in the investigation and the fact that this was hindering rather than helping progress. He also confirmed that he had never trusted Burton or Corfield.

630 Also, in cross-examination, Ayton confirmed that a deal had been done with Barry Crimmins for him to be given favourable treatment and that the strategy of the investigation, was that Barry Crimmins would provide information leading to a solution of the entire inquiry. He also confirmed that, by 23 December 1993, he had lost confidence in Gwilliam and that Gwilliam was charged with perjury over his allegations relating to the discovery of the D'Anna document among the materials seized from Roddan's property during a search. He says that he instructed Gwilliam to cease all participation in the Argyle diamond inquiry but that Gwilliam did not obey the instruction.

631 All this reveals that there was much disharmony and mutual distrust at all levels of the Argyle diamond theft investigation and certainly between higher levels of the Police Force and the Argyle security representatives. I am satisfied that there was a degree of irritation in the higher levels of the police service that the Argyle diamond investigation was taking so long and was utilising so much in the way of police manpower and resources, apparently to little avail. Further, there were some resentment that senior executives at Argyle had sufficient standing to have their complaints about the progress and direction of the inquiry (particularly the first decision to conclude the inquiry) reviewed by the Commissioner of Police and to institute a second investigation. There is nothing corrupt or improper about this, rather, it is but an example of institutional chauvinism and resentment that decisions and conclusions of police officers could be second-guessed by outsiders. However, it made for a bad working relationship and engendered a belief, which I am satisfied that Noye held, that Argyle was making too great a fuss over allegations of stealing which could not be supported. These disharmonies caused repeated difficulties in the course of the inquiry.

632 The police hierarchy knew that Argyle was conducting its own parallel investigation. The police hierarchy also knew that, despite Noye's recommendation in his report of September 1992 (Exhibit 3), there were other officers who had been involved in the investigation, namely Thoy and Gwilliam, who had a diametrically opposed view about the existence of a case for prosecution and the need to proceed with the investigation. When asked whether all these factors were taken into account when the decision was made, on Noye's recommendation, to terminate the inquiry in late 1992, Assistant Commissioner (Crime) Ayton said (t/s 1843 - 1844):

"With all those matters taken into account, it was decided that the matter should be written-off because, while there's no doubt that there were thefts, there was insufficient evidence on the basis of what Noye had found, to charge any person."

And, when asked further about what account was taken of the discordant views of Gwilliam and Thoy and whether or not they were "playing out of tune", Ayton said:

"Yes, sir, the strings were very loose. I mean, they had by that time I think made complaints to the Ombudsman about almost everybody in the organisation and it was absolutely a shambles. It was terrible. That side of the Argyle investigation I didn't touch. I dealt solely with what Mr Noye had told me. I wasn't trying to placate anybody. I was just trying to get the best result for the Police Department."

And, then, when asked whether or not this internal animosity was damaging, Ayton said:

"Absolutely, and has continued to be, sir. It has been a blot on the Police Department for many, many years. Badly handled from the start. Badly handled almost right through and nothing that we can be proud of."

633 I consider that Assistant Commissioner (Crime) Ayton is much to be commended for this frank, but realistic, appraisal of how the overall investigation was being conducted and the effects of the disharmony among the personnel involved in the investigation. My impression of him as a witness was that he was entirely honest, frank and open in his analysis. However, at the time, and still, his dealings with the matter were at the level of an overall strategic supervisor designed to protect the integrity and reputation of the Police Force and, if necessary, to pursue unflinchingly any signs of internal corruption. I am satisfied that he did this, but he did not have, nor did he attempt to suggest that he had, a very close acquaintance with the details of the investigations. Clearly, as the months passed towards the end of 1993 and throughout early 1994, it became evident to him that Gwilliam had lost perspective and could not be relied on.

634 Inspector Lavender was nominally in charge of the third phase of the diamond theft investigation. He gave evidence, by the production of his witness statement (Exhibit 167), and was cross-examined. He emphasised that part of his role was to enforce the demarcation of the investigations between the theft of the diamonds and any conspiracy to steal, on the one hand, and the investigation into any criminal conduct of police officers, on the other. The latter was strictly the province of the IAU investigation headed by Inspector Robbins. He emphasised that the DPP was highly involved in the investigations and that they assisted and advised in relation to the evidence and charges in the matter. Gwilliam was responsible for the bulk of the collection of the evidence and they proceeded on the basis that the evidence of Lynette Crimmins required corroboration.

635 Lavender's task force, investigating the diamond thefts, comprised himself, Gwilliam, Mawson, Schubert and Holland. His recollection was that the DPP had been involved in an advisory capacity before 14 August 1993.

636 Lavender confirmed that the manuscript of the running notes for the progress of the search warrant executed at Roddan's premises on 10 August 1993, was kept by Sergeant Young and himself, and that these notes, and a typewritten copy of them, comprised Exhibit 137 (16TB 4005 - 4031). There is no entry in these notes of the discovery of the D'Anna report among Roddan's papers, nor of any such document being brought to the attention of Inspector Lavender during the search. Inspector Lavender also said that he did not believe that Gwilliam had brought any such document to his attention (t/s 1920). He acknowledged that during the course of the investigation he did have concerns about Sergeant Gwilliam who, at times, appeared "over enthusiastic about the job he was doing" (t/s 1920).

637 I accept the evidence of Inspector Lavender as being entirely truthful and I also accept that he was exercising his responsibilities in the course of this investigation with objectivity and detachment. The problem, however, was that he had very little influence over any actual day-to-day events or the initiatives taken by Gwilliam, who was co-operating closely with Burton. It is no criticism of, or disrespect to, Inspector Lavender to say that his role as leader of the third stage of the investigation was little more than that of a figurehead. Gwilliam and his staff, together with Burton and other Argyle representatives, were working out of other offices. Lavender did not have daily command or oversight of what they were doing and, when problems with the direction of the inquiry and the involvement of Argyle staff in internal police operations and procedures were raised, Gwilliam refused to comply with directions given by Lavender and others. Therefore, despite Inspector Lavender's undoubted independence, objectivity and propriety, I have concluded that he really had very little influence over the direction and conduct of the third phase of the investigation.

638 Although she gave evidence on her own behalf in defence of the claim brought against her by Noye, the trial proceeded on the basis that, subject to any specific ruling to the contrary, all the evidence given by Lynette Crimmins was evidence in the case generally and could be used in relation to both claims. The same should be said about the evidence adduced by, or on behalf of, Inspector Robbins in the defence of his claim.

639 As well as the significance of her evidence in relation to the events involving the diamond theft investigation as a whole, the evidence of Lynette Crimmins is significant because of her own position as a defendant in the second action. For that reason, the question of whether or not she was a prosecutor in the sense of being a real instigator of the charges laid against Noye arises. One of the submissions put on her behalf is that there could not be two prosecutors, and that the evidence clearly established that it was Inspector Robbins who laid the charges. However, this appears to me to overlook the need to identify the reality of the situation because, as with any tort, it is possible that there may be more than one tortfeasor who may be concurrently liable. So the issue remains whether or not Lynette Crimmins was a real instigator of the charges laid against Noye, and, if so, whether she acted maliciously and without reasonable or probable cause. If that were established, the plaintiff would still have to prove that the prosecutions so instituted were resolved, as far as was practicable, in his favour and that he suffered damage, within the recognised categories which was caused, to a material degree, by the actions of this defendant. Accordingly, the evidence of Lynette Crimmins needs to be examined with these issues, upon which of course the plaintiff carries the burden of proof, in mind.

640 In her written statement (Exhibit 172) Lynette Crimmins gives an historical account of her marriage to Barry Crimmins, their life together, her meeting with Roddan, the move of the family to Western Australia, her husband's employment with Argyle Diamond Mines Ltd and her discovery, in 1989, that he was taking diamonds from the mine site and passing them to Roddan. She confirmed that she and her husband separated in June 1990 and that in March 1991 she moved into the unit at 94 Lincoln Street, Highgate. She went on to explain how, from May 1991, she came to lend or to give Roddan substantial amounts of money on various occasions which, by late 1992, had amounted to something in the order of $150,000.

641 She said that she learned that a second police inquiry into the theft of Argyle diamonds was started in about February 1992. She was told this by Roddan after she had seen him speaking to a man at the L'Alba Café in Perth who she subsequently discovered to be Sergeant Noye. She says that she saw Noye and Gwilliam meeting with Roddan at the L'Alba Café on another occasion at around the same time and that, later, Noye contacted her by telephone to say that he was bringing Gwilliam around to her home to interview her, but that she should not worry as "he would look after me". The meeting with Noye and Gwilliam took place. Gwilliam appeared to concentrate on asking her questions about her car, which had recently been reported as stolen, and enquiring whether or not it might have been Barry Crimmins who had taken the vehicle.

642 She said that some months later, in about April/May 1992, she was contacted by telephone by the Police Motor Squad to say that her stolen vehicle had been located and requesting that she meet a detective from the Motor Squad at Curtin House. She told Roddan of this. Noye later telephoned her to say that the time for the meeting with the Motor Squad had changed and that she should meet him at Curtin House instead. She says that she did go to Curtin House to meet Noye, who took her to the police canteen and introduced her to other men there as "my Aunty Lyn". She says that she sat at the canteen, was introduced by Noye to another officer and that Noye and this other officer began speaking openly about diamonds. The other officer saying that he was going to "take the best pink", and another saying that "I am having a white" and that Noye was present throughout the whole conversation. After that she went with Noye to a wine bar next door for coffee. After this meeting Roddan told her that Noye was there to take care of things and, from then on, she saw Noye meeting with Roddan at the Gioia Café regularly. Roddan told her repeatedly that Noye was "on side" and that the inquiry was to be written-off and that Noye was getting $200,000, she was to be paid $200,000 and Barry Crimmins would get $200,000, but that Noye had to go to Victoria to see Barry and "shut him up".

643 Lynette Crimmins said that this $200,000 payment to Noye was spoken of regularly in her presence at meetings between Roddan and Noye and that on one such meeting she asked why he was getting the same amount as she was when she had invested the $150,000. She said Noye replied, laughing: "It's who you know isn't it mate?", and then to Roddan: "We'll all retire when the fat lady sings". She said that Noye never asked her for money but Roddan sometimes told her to give him a few hundred dollars because he was getting "hungry".

644 Next, Lynette Crimmins recounted the incident of the burglary at the Lincoln Street house on 3 September 1992 and how, after Roddan had first called, Noye attended, wrote out a false list of the property taken and told her that he wanted 10 per cent of the insurance claim but that "a grand would be sweet". She says that he said that he needed the money to pay for his travel to Melbourne to make sure that Barry would keep his mouth shut. She further says that when the insurance claim was being processed, Roddan and Noye talked her into taking money rather than having the jewellery stolen replaced, and how she obtained cheques, later cashed, totalling $16,000, from which she paid $1000 in $100 notes to Noye outside Ted's Café in Northbridge. At this meeting she said that Noye told her that he was going to Victoria to see Barry to reinforce the fact that the inquiry had been completed and was being written-off and that he needed $1000 for his air fare to and from Victoria.

645 Lynette Crimmins also said that in about November 1992 she met Roddan and Noye at the Gioia Café, where Noye said that his report was being given to Ayton but that the investigation was not quite complete because a statement from Charles Devenish was missing. During the course of this conversation she says that Noye put a beige manila folder containing a lot of paperwork on the table and pushed it across to Roddan, saying: "We've got everything now except Devenish's statement. It's going to be bloody hard to get, it will cost more." She says that towards the end of the 1992 police inquiry she saw, on separate occasions, two lots of bound documents of A4 size - one about the thickness of a White Pages Directory and the other a little bit less than half that thickness.

646 Lynette Crimmins then described the assault upon her by Roddan on 19 January 1993; the events which occurred that night; and, her subsequent arrest and detention at Warwick Police Station, where she asked to speak to Noye thinking that he could help her. Having returned home the next morning, she described meeting Inspectors Robbins and Syme and speaking to them about police corruption and meeting with them later with her solicitor that day (Exhibit 109, 5STB 1164).

647 After the various discussions with police officers following those allegations, Lynette Crimmins went into witness protection on or about 5 July 1993. During this period she was interrogated by Sergeant Gwilliam. She asked for John Burton to be present because she did not trust Gwilliam, but trusted Burton to whom she had spoken in the couple of months beforehand about what had occurred. That interview took from 12 - 15 July 1993 (Exhibit 24). She confirmed that in that interview she had told Gwilliam and Burton the following:

• That Noye and Roddan met regularly.
• She had been present on a number of occasions at meetings between Roddan and Noye where they had spoken of $200,000 being the price being paid by Roddan to Noye.
• At one of these meetings she asked Noye why he was getting the same as she was when she had already advanced $150,000 to Roddan.
• Noye had said that he was going to get first pick of the stones in police custody after they were returned to Roddan.
• Noye had prepared a statement for her setting out that she knew nothing about diamonds being stolen by Barry Crimmins or of Roddan dealing in stolen diamonds.
• Noye faxed her a copy of this statement telling her to show it to Roddan before signing it.
• She signed this statement and that Noye gave her copies for Roddan and for Barry Crimmins and took the signed copy himself,
• That Noye and Roddan had talked her into taking cash rather than jewellery in settlement of the false insurance claim.

648 Lynette Crimmins maintained that all these statements were true and were honestly believed by her to be true at the time that she originally made them. Because she was on witness protection at the time the statement was taken, she felt obliged to speak frankly and forthrightly to the police and therefore gave much more information than was in her earlier statement to Robbins and Syme of 20 January 1993. Quite obviously, there was far more detail in the statement given to Gwilliam and Burton than had been disclosed in the 20 January 1993 statement.

649 With respect to the statement to Inspector Robbins of 7 October 1993 (Exhibits 28, 29 and 138), she said that the meeting had been arranged to take this statement because her solicitor had written to the DPP seeking the provision of some sort of immunity. She was not sure whether or not she would get any form of immunity because Gwilliam had always told her that she would be charged. She confirmed that she had told Robbins on this occasion that, at meetings with Roddan and Noye, she had heard them refer to future times when they would be rich and both used the expression "when the fat lady sings", and that Noye had told her prior to the first meeting with Gwilliam that he was bringing him around so that she could meet him and know if he was "sniffing around". She explained how Noye had said that he was going to look after her and that Roddan had told her that Noye would protect her and cover for her. She also mentioned an occasion when Noye had said words to her to the effect: "We will show them who is running this show, Uncle Max is taking care of that." She believed that Noye was in awe of Roddan, that this relationship developed over time and that by July 1992 it was like Noye was working for Roddan. She confirmed that she had told Robbins that Noye and Roddan had discussed getting a certificate for a pink diamond from Horovitz and that some of the money which she had earned from prostitution was given to Noye on about three separate occasions.

650 As well as confirming other allegations which she had made to Robbins in the October 1993 interview, Lynette Crimmins confirmed that she had told Robbins about the fraudulent insurance claims against the SGIO; that she had given Noye $1000 in cash from the proceeds of the fraud; and, that she believed that the money was to be used to assist him to go to Victoria to reassure Barry Crimmins that he, Noye, was protecting Roddan, Barry and Lynette Crimmins. She maintained that these statements were based on her own observations, or on recounted matters which she had been told by Noye or Roddan, and said that she believed them to be true.

651 Lynette Crimmins denied any animosity towards Noye, but says she became frightened when he became angry with her during the telephone conversation of 19 January 1993 after she had told him that she had gone back to Roddan's house, created a disturbance, had been arrested and had then been taken to the Warwick Police Station. She denied any particular animosity towards Noye over his actions in protecting Roddan from prosecution in respect of the 19 January 1993 assault. Rather, she said that her attitude towards Noye was one of sympathy because she considered that he was a puppet of Roddan, much as she and Barry Crimmins had been.

652 Similarly, Lynette Crimmins denied any wish to ingratiate herself with Corfield or Burton, saying that after she had made her initial disclosures on 19 and 20 January 1993, she felt it best to make a clean breast of everything. In relation to Noye, she said that her sole concern was to disclose everything to the police, once the operation had been revealed, and that she felt obliged to make full and complete disclosures when she was on witness protection, not only because of the need to co-operate with the police, but because she then had real fears for her life and safety.

653 These allegations against Noye in Lynette Crimmins' witness statement (Exhibit 172) are more extensive than allegations of a similar nature that she made earlier. They are markedly different from her first disclosures to the police in January 1993. Certainly the allegations of cash payments being made by her to Noye on three occasions never resulted in any charges being laid against him. Barry Crimmins did not say to the police that he was to be paid $200,000, or any large sum by Roddan, as a result of his role on the ending of the investigation. Noye was never charged with handing over a manila file of papers (presumably a draft of his report (Exhibit 3)) to Roddan in late 1992, nor was any such document alleged to have been found in Roddan's possession, or in the possession of his solicitors or banks, after the execution of the various search warrants by the Gwilliam task force. There is no corroboration that Zanetti ever met with Noye and Roddan at any café in Northbridge, and neither Robbins nor any other senior police officer ever appears to have alleged that he did. There is no other allegation of Noye and Roddan discussing the possibility of getting a certificate for a pink diamond from Horovitz. There are also other differences and new allegations in this statement which emerge from comparison with earlier accounts.

654 Apart from her reference to "Uncle Max", there was no suggestion in her statement (Exhibit 172) that other police officers were said by Roddan to have been corrupt, or that Roddan had used the first advance of $35,000, which she had paid to him, to "burn" Thoy or otherwise have the first investigation closed down. Nor did she disclose that she had received or been promised any financial or other help, assistance or protection by Argyle during the course of the investigation or following her disclosures to the police in January 1993. Yet, in other statements, Lynette Crimmins had made those allegations and, of course, much earlier, during the course of the 1992 investigation by Noye, she had signed a statement denying any knowledge of diamond stealing by Barry Crimmins.

655 Quite obviously, therefore, Lynette Crimmins is a person who has given a series of accounts of the relevant events which are in many important respects false, inconsistent or incomplete. As well as being a person directly involved in the illicit distribution of stolen diamonds, these are all factors which must be regarded as telling significantly against her credibility, not only when giving evidence in this case, but during the critical stage of the investigations in 1993 when her allegations came under close attention by Inspector Robbins in the IAU task force and by the Gwilliam task force investigating the diamond thefts. In cross-examination, she admitted that she approached Argyle in 2004 for financial assistance and that that company has assisted her for the purposes of funding her defence in this litigation. She said that she did not know the extent of the assistance provided, or to be provided.

656 On repeated occasions during her cross-examination, Lynette Crimmins became evasive and contrived in the answers given to relevant questions put by the plaintiff's counsel. She also appeared to be sheltering behind a pretext of failed recollection of events in respect of which she had, in the past, been specific. She was particularly evasive when being asked about discussions with police officers and investigators on occasions when, previously, she had alleged that she had been promised immunity from prosecution. She betrayed a prejudiced attitude towards police officers generally and also said that she would not believe Inspector Robbins. In elaborating on this, she said that his attitude towards her changed after his visit to Barry Crimmins in Victoria and from then on he became more distant and critical. She referred to a "purple circle", which she characterised as an elite group of crooked officers in the police service, and she acknowledged having had several meetings with John Burton saying that she had met him for coffee from time to time. Later she acknowledged that these meetings were at regular intervals of about once a week or a fortnight, saying that the purpose for meeting was to discuss "family matters".

657 On being asked, Lynette Crimmins agreed that in March 1993 she had telephoned Thoy herself to discuss "everything", because he was the one Noye and Roddan had said to stay away from. She said that she met Thoy in a café in about November 1992 and had several meetings with him (t/s 2062 - 2063). She said that Noye had told her to "stay away from Robin Thoy because he was a nutter, they were going to discredit him" (t/s 2064). Her reason for contacting Thoy in March 1993 was, she said, because she was not getting anywhere with Robbins. This incidentally was an allegation which, upon all the materials which have been produced in this case, was never alleged by Lynette Crimmins before this episode in her cross-examination.

658 She confirmed, in cross-examination, her account of the discussion at the police canteen at the Curtin House headquarters of the CIB when Noye and another police officer said that Noye would have first pick of the diamonds. Lynette Crimmins also said that she had paid cash to Noye in amounts of $400, $500 and $300 - "whatever Lindsay [Roddan] asked me to get" (t/s 2094). She said that, counting the $1000 dollars (from the insurance claim), the total amount handed over to Noye during this period would have exceeded $2500. This, too, I interpolate, is a higher figure than has ever previously been alleged by Lynette Crimmins and, again, Noye was never charged with receiving these or any similar payments. She also said that she had told Noye from the outset that she was delivering diamonds from Barry Crimmins to Roddan and that two named people were being recruited to steal diamonds from the mine. She maintained that Noye had prepared a false inventory of property stolen during the burglary at the Lincoln Street home and, with Roddan, pressed her to take $10,000 in cash rather than collecting $16,000 worth of jewellery in the insurance settlement. At this point Lynette Crimmins engaged in an outburst of abuse against Noye, revealing a deep and bitter animosity towards him, quite inconsistent with her written evidence of sympathy or neutrality (t/s 2161).

659 I was left with the clearest impression that Lynette Crimmins was a very unreliable witness and that her unreliability ranged from mistaken recollection, to reconstruction and invention, and to actual falsehoods. She tended to speak in generalisations and, when brought to deal with specific issues, gave accounts of material episodes which varied from other descriptions which she had given in the past. Despite her claims to be disinterested and without animosity towards Roddan or Noye, there is now no doubt that she harbours, rightly or wrongly, a very deep prejudice against Noye, as well as harbouring a long-standing prejudice, dislike and suspicion of police officers generally. I regarded her as a person of very low credit and I have no doubt that by any experienced police officer, investigator, prosecutor or other lawyer, she would quickly be recognised as a person in whom a court or a jury would not be disposed to place any significant degree of trust.

660 The problem with such a person is to separate truth from falsehood because often, even in the most untruthful or unreliable account of events, there may be a significant occasional germ of truth. In a case such as this, the real question is whether, despite, many exaggerations, inconsistencies and not a few falsehoods, the fundamental allegation advanced by Lynette Crimmins to the police in 1993, that Noye had been corruptly involved with Roddan and Barry Crimmins to write-off the inquiry, was true.

661 I am satisfied that, from January 1993 onwards, Inspector Robbins was fully cognisant of the unreliability and shortcomings of the information provided by Lynette Crimmins but that, nevertheless, the overall allegation of police corruption was so important that it could not be neglected and that it was necessary for a full investigation to be made in order to determine whether, and if so, to what extent, Lynette Crimmins' allegations could be confirmed. It was really the subsequent confession of Barry Crimmins to his role in stealing diamonds from the Argyle mine and distributing them via Roddan and Lynette Crimmins that confirmed, to an important degree, that Lynette Crimmins account of stealing from the mine and distribution of diamonds by Roddan was true. If that was true, then the allegations made by her against Noye might also, fundamentally, be true and were far too important to be ignored.

662 This reveals that the allegations made and maintained by Lynette Crimmins against Noye were certainly instrumental in causing the police to undertake the investigation of alleged corruption by Noye. However, I am equally satisfied that neither Inspector Robbins, nor any of the other senior police officers (excluding from this category Sergeants Gwilliam and Thoy and, for that matter, the Argyle security personnel), were prepared to place much reliance on the testimony of Lynette Crimmins alone. It was only after they had received confirmation that Noye had repeatedly met with Roddan at Northbridge cafés in circumstances which, despite Noye's truthful explanation that Roddan refused to come to any police office for interview, was nevertheless incongruous; of his alleged unauthorised delivery of the soil sample analysis reports to Roddan; and, of his previously undisclosed visit to Barry Crimmins in Victoria and his unusual behaviour during that meeting, that Robbins decided that the circumstantial evidence, taken in conjunction with what was then known of the diamond stealing scheme, meant that Lynette Crimmins' evidence had a measure of support and corroboration, even if not direct.

663 I am satisfied that it was the decision of Robbins to lay the charges and that he only took that decision after prior consultation with senior police personnel, including Assistant Commissioner (Crime) Ayton, and Deputy Commissioner Zanetti, and after receiving advice from officers of the State DPP. Lynette Crimmins' allegations no doubt triggered the investigation into Noye and were relied on to an extent, but I am satisfied that she could not, in any material degree, be regarded as being the actual or de facto prosecutor of the charges which were laid against Noye.

664 The next issues of controversy are whether or not Robbins continued to be the prosecutor of the charges laid against Noye. This raises the issue of whether or not his role of prosecutor should be regarded as having ended once the DPP took over the conduct of the prosecutions, or at some later stage. There is also the separate question of whether or not Robbins was the prosecutor in respect of the internal disciplinary charges, notwithstanding the fact that these were laid in the name of Inspector Dawson, rather than by himself. Then, there is the question whether Robbins acted maliciously in relation to any or all of the charges, followed by the question of whether or not there was reasonable and probable cause for the institution of any charges for which Robbins might be responsible.

665 These were in fact laid by Robbins and, although their prosecution was taken over by the DPP shortly afterwards, he continued to be the complainant right up until the completion of the preliminary hearing and the committal of Noye for trial. Once the indictment was presented, of course, it was laid in the name of the Crown. Robbins had been in charge of the investigation, it was his decision, taken after consultation with superior officers and after advice from representatives of the DPP, to lay the charges and he did not attempt to suggest that he was not responsible or answerable for the consequences of that decision. Even after the DPP had taken over the handling of the prosecution, Robbins was engaged in preparing and completing the brief and gathering information and he gave evidence in the course of the proceedings in the Magistrates Court. Although the management of the prosecution was in the hands of the DPP, Robbins continued to assist and implement the course of the prosecution. Never at any stage did he advise or suggest that the charges should not be pursued or withdraw, or attempt to withdraw, his co-operation and work in promoting and assisting the prosecution of the charges.

666 I am satisfied, therefore, that at all material times he was the prosecutor of these charges, that is, up until the point when Noye was committed for trial. From then on, it was the Crown which was the prosecutor, but that is no different to any prosecution on indictment where, the initiating complaint has been made by an individual who, later, might be found liable for damages for malicious prosecution, notwithstanding the intervention of law officers of the Crown in the prosecution and trial on indictment.

667 From my scrutiny of the evidence relating to the investigation and the evidence which he gave at trial, I am satisfied that Inspector Robbins only ever acted out of a proper sense of duty and a desire to conduct a thorough, but fair, investigation in circumstances where there was every indication that the long-running investigation into the theft of diamonds from the Argyle mine had been seriously flawed and possibly compromised. It was not he who first came forward with allegations of police corruption. They had existed from long before the end of the Thoy/Gwilliam first inquiry. In January 1993 they took specific form as a result of the allegations of Lynette Crimmins. Clearly, that had to be investigated and investigated thoroughly. Robbins reported to the highest level within the Police Force and conducted, what I am satisfied was, an even-handed investigation.

668 There were many inadequacies in the overall police investigation. First, in the oversight of the Thoy/Gwilliam investigation as former Assistant Commissioner (Crime) Ayton has himself acknowledged; and, secondly, in the second investigation by Noye, the choice of personnel involved, and the pairing of Noye with Gwilliam who was so single-minded and convinced of the existence of corruption that the relationship broke down, leaving Gwilliam even more suspicious and convinced of the existence of corruption. There was the almost complete lack of helpful direction or guidance made available to Noye to evaluate progress or to review his tentative conclusions.

669 The error which Noye made in concluding that there was no evidence upon which to base charges, arising from the alleged theft of diamonds from Argyle, was so egregious that it could only be explained by the grossest of inadequacies or misjudgments in the conduct of the inquiry, or by deliberately corrupt conduct. It is true that there was very little evidence upon which to base a charge of stealing against Roddan or Barry Crimmins until Lynette Crimmins made her statements of January 1993 or, later, when Barry Crimmins himself confessed to his involvement in the stealing and distribution of the diamonds. However, that point would surely have been reached much earlier had a more focused inquiry been conducted, which concentrated on the role of Barry Crimmins, already a suspect, and on other available evidence showing that Roddan had, for a long time, boasted of obtaining diamonds from Argyle, and had dealt in the sale and distribution of diamonds by irregular means for many years.

670 Further, there was the evidence that Noye had met Roddan informally on very many occasions which, while not itself unlawful, was a very unusual and compromising course for a police investigator. Noye's readiness to associate with Roddan was a very suspicious feature of his conduct and one, which even by the time of trial, Noye did not seem to recognise as being dubious.

671 Since his retirement from the Police Force, and in the course of the pursuit of this litigation, Noye has become even more closely associated with Roddan and, in my reasons for decision of 30 May and 1 June 2005 (Noye v Robbins [2005] WASC 137), when I ordered that the proceedings which had been brought jointly by Roddan and Noye should be severed, it was evident that Noye and Roddan had been closely associated in the preparation of this litigation. That appears to me to be singularly inappropriate and, itself, suggestive of improper relationships between Roddan and Noye but, in the end, I have concluded that it really reflects nothing more than a surprisingly unperceptive naiveté by Noye about the implications of maintaining any kind of relationship with Roddan. I concluded that Noye simply does not realise how compromising for himself this relationship with Roddan, however limited, appears. Nor did he realise that his conduct throughout 1992, in frequenting cafés with Roddan and speaking to him so often on the telephone, conveyed similar suspicions.

672 Noye seems to have, and indeed admitted having, a sneaking regard for Roddan as being "a likeable crook" and "being no worse than many others". I have no doubt that Roddan was, to many people, engaging and even fascinating, but for a principal suspect in a diamond stealing case involving international connections that was all the more reason to be beware of him. I am satisfied that, to a significant extent, Noye was beguiled by Roddan but, no matter how innocent that may have been, it inevitably led to genuine suspicions being entertained about his own behaviour.

673 Robbins' inquiry had revealed that Lynette Crimmins was correct in her basic allegations about a long-standing pattern of diamond stealing from Argyle by Barry Crimmins, and the distribution of the diamonds by him, first to Roddan, and then by her to Roddan and others, from which Roddan gained large financial rewards. This truth, once it was confirmed by the confession of Barry Crimmins, inevitably lent greater credibility to her allegations of impropriety by Noye and his involvement in corrupt suppression of the diamond stealing investigation.

674 The evidence which Robbins had to implicate Noye has already been extensively examined and was, in my view, very greatly dependent upon Lynette Crimmins' own testimony. Barry Crimmins' evidence against Noye was at first only circumstantial, although in a revision of his witness proof made after the charges were laid, he did allege a compromising statement by Noye, tantamount to an admission, during conversations at the Crimmins' house in Shepparton in November 1992. However, that information was not available to Robbins when the charges were first laid. There was the incongruous series of meetings between Noye and Roddan at cafés and elsewhere, already described; the equally incongruous behaviour of Noye during his visit to Shepparton; and, the gross errors of judgment in interpreting the available evidence in Noye's draft report of September 1992 (Exhibit 3). Gwilliam was also alleging impropriety by Noye in the supply of the CRA soil analysis report, which was corroborated to an extent by the evidence of Ayton. Then there was Noye's improper behaviour in January/February 1993, in providing information about the ownership of the stolen firearms to Roddan.

675 I am satisfied that all this led Robbins to a genuine and sincere personal belief that Noye had acted corruptly and had combined with Roddan to ensure that the inquiry should be written-off, and that that extreme conduct could only be explained by the existence of some substantial inducement which, although never identified, was alleged by Lynette Crimmins to be the promise of payment of $200,000 and/or first pick of the Newton diamonds. Against this was the fact that Noye had always denied any impropriety; that no improper payment to Noye was ever established; and, that there was no suggestion of unexplained wealth or disproportionate spending by Noye.

676 There is no doubt that Robbins did seek advice from senior officers of the DPP about the course which he should follow, and that he was advised that the circumstances warranted, indeed required, the laying of charges against Noye. It is also the case that, during the second part of 1993, the constant theme from the Gwilliam inquiry, and from the Argyle personnel, was that Noye was unquestionably corrupt and that this source, the Gwilliam inquiry, was leaking information to the press and tendering advice and information to the DPP which strenuously and unremittingly advanced that thesis.

677 It was also the case that the public climate of concern about the conduct of the Police Force with regard to this inquiry was reaching a crisis point and that a solution, to the doubts which were being expressed about the integrity of police operations, was being demanded. Indeed, senior ministers were requiring briefings on the subject. I have no doubt that this created something of a hothouse atmosphere and an imperative for a decision to be taken more quickly than might otherwise have occurred. Inspector Robbins himself said that much inconvenience had been caused by Gwilliam, without notice to his team, arresting Roddan when he did. However, in defence of Gwilliam, in this respect he appears to have claimed that there was some reason to believe that Roddan might have been about to leave the country.

678 For present purposes, the significant consequences of these various pressures was, I am satisfied, that those officers who were propounding the view that Noye was unquestionably involved in the conspiracy, and that there was reason to believe that even more widespread police corruption than that existed, had gained more attention and influence than, with the benefit of hindsight, they deserved. Also, a climate of deep suspicion, which resulted in the more ready acceptance of the worst implications of the case against Noye, was created. One might deplore the fact that this occurred, but one cannot be blind to the fact that it did, or to the influence which it had on various people who had important decisions to make or advice to give.

679 I do not exclude from the influence of this atmosphere, the officers at the DPP who were being supplied with information, not only by Inspector Robbins and his task force, but also by the Gwilliam investigation team, heavily influenced as that was by the Argyle security officers. There is no evidence in this case of the precise information, let alone the content of any brief, which was put to the officers of the DPP when advising Inspector Robbins about whether or not the circumstances justified the laying of charges against Noye. The conclusion I reach, which I am satisfied is justified to a high degree of probability, is that the information flowing to the DPP from both the task forces was not separately analysed, and that the advice which the various officers of the DPP gave to Robbins was significantly influenced by the information coming from the Gwilliam team, which, in relation to Noye's alleged involvement, was completely unreserved and which sought to uphold the credibility of Lynette Crimmins.

680 There is no reason to suppose that, at this point, the officers of the DPP knew that the Argyle security personnel were in frequent communication with Lynette Crimmins or were offering her support or other inducements, nor that the officers of the DPP were aware of the extent of the allegations of corruption against more senior officers in the Police Force which Crimmins had made, and for that matter would expand in the future. Had they done so, a more cautious attitude to the reliability of her evidence would have been warranted.

681 Notwithstanding the complexity of the situation which had arisen, and the conflicting views which existed at the time, I am satisfied that Inspector Robbins did believe that the evidence disclosed a case against Noye, which meant that he should be charged and put on trial. In other words, I am satisfied that Robbins honestly formed the view that there was a proper case for prosecution: Sharp v Biggs (supra); Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 and A v State of New South Wales [2007] HCA 10 at [51] - [81].

682 This was not a case where the crucial facts were, or ever could have been, within the personal knowledge of the prosecutor. Inspector Robbins had to rely on the information which he had obtained or which was put before him. He could not rely on it by simply taking it at face value without having regard to factors which affected its cogency - obviously the credibility of Lynette Crimmins; but what he was required to do was to decide whether, in his own view, and on an objective basis, the evidence warranted putting Noye on trial for the charges proposed and, in doing so, to act honestly for the purposes of bringing a wrongdoer to justice. That is what I am satisfied animated Inspector Robbins at the time he laid the charges and throughout the period when they were pending. I am quite satisfied that personally, he reached this decision after careful and anxious thought and with guidance of superiors and advisors. It was his honest opinion that charges should be laid, as they were.

683 Nevertheless, a plaintiff in an action for malicious prosecution may still succeed if, notwithstanding that the prosecutor honestly believed that there was reasonable and probable cause for the laying of the charges, there was, to an objective observer, no such reasonable or probable basis - as Dixon J said in Commonwealth Life Assurance Society Ltd v Brain (supra) and which was cited with approval in A v The State of New South Wales (supra) at [82]:

"[T]here remains the question, for the court to decide, 'whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause'."

This citation comes in a context where considerable emphasis had already been placed on the principle that the onus of proof lay upon the plaintiff to establish that there did not exist sufficient grounds to constitute reasonable and probable cause, and that in every case this ultimately constituted a question of fact.

684 This test is not without its difficulty, particularly, as in this case, where the credibility of a principal prosecution witness is very suspect. It does not follow that a prosecution cannot be launched on the basis of the testimony of only one witness, anymore than it is the rule that the testimony of one witness, however suspect, will provide a probable and reasonable basis for laying a charge. As was said in A v The State of New South Wales (supra) at [87]:

"For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting the crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule: Bradshaw v Waterlo & Sons Ltd [1915] 3 KB 527 at 534. The objective sufficiency of the material considered by the prosecutor must be assessed in the light of all the facts of the particular case."

685 I have already explained why, in practical terms, the case for corrupt conspiracy between Noye and Roddan depended, to the greatest extent by far, upon the credibility of Lynette Crimmins. She was the only one who ever said that Noye had been promised or given money. She is the only one who said that he went to Shepparton to see Barry Crimmins to make sure "he kept his mouth shut". She was the only one who claimed that Noye had said that he wanted first pick of the diamonds, or was to be paid $200,000 for his role in the conspiracy. It was she, and she alone, who said that Noye had fraudulently prepared a false inventory of goods stolen from her Lincoln Street apartment; had, in combination with Roddan, pressed her to accept a $10,000 cash settlement of the claim, rather than take replacement property to the value of $16,000; and, had demanded and received $1000 cash from the fraudulent insurance claim to cover his expenses of travelling to Victoria. It was she who alleged that Noye had handed over to Roddan, in late 1992, a large folder containing a thick wad of papers (presumably a draft of Noye's final report), when no such document was ever found in Roddan's possession or control, and when no charges against Noye of any kind were ever laid in respect of that allegation.

686 Lynette Crimmins was believed to have made false accusations of sexual misconduct against a Victorian police officer who was a colleague of her husband, when he had been a member of the Victorian Police Force, many years before. She constantly repeated the mantra which she had heard Roddan speak about, that "Uncle Max would fix it", clearly an allegation of corruption against Superintendent Kiernan. She alleged that Robbins himself was corrupt and that there was a "purple circle" of officers within the Police Force who were all corrupt. She openly accepted and believed that the original Thoy/Gwilliam inquiry had been closed down because of corruption and that Roddan had paid money "to burn Thoy". She was, by her own confession, a principal offender in the conspiracy between Roddan, Barry Crimmins and herself to steal diamonds from the Argyle mine and she had, on many occasions, distributed or sold stolen diamonds to various people in Perth and elsewhere in Australia. She had attempted to recruit at least two other people to seek employment at the Argyle diamond mine and to join in the stealing operation.

687 She had been courted by the Argyle security personnel and by Gwilliam and his task force to implicate Roddan, under circumstances where I am quite satisfied that she was led to believe that she would herself receive some form of preferred or lenient treatment - but not immunity from prosecution. She was plainly seeking to ingratiate herself with the police and with the Argyle authorities out of her own self-interest. Her activities in this regard were rewarded by recommendations for leniency made by Argyle to the Judge who sentenced her, and by submissions to similar effect by counsel for the prosecution when she was being sentenced. She was very far from being a disinterested or independent witness susceptible only to the ordinary frailties of human recollection and mistake. Looking only at the information available to be used as evidence against Noye, as distinct from Roddan, I do not consider that there was, in objective terms, a reasonable or probable case for prosecution.

688 It seems to me to be the case that the deficiencies in the evidence available against Noye were realised from a very early stage by the DPP and that this is the reason why Noye was charged with being a party to a conspiracy with Roddan to cause the diamond stealing investigation to be written-off. If a conspiracy were to be alleged, and proved, then the statements of a co-conspirator (Roddan) made in the absence of Noye (such as in his frequent boastings to Lynette Crimmins about having Noye in his pocket, etc.) would be admissible as part of the statements or activities occurring in pursuance of the alleged conspiracy, and therefore available as evidence against Noye himself. Much attention was devoted by officers at the DPP, when indictments were being prepared, to the delivery of detailed particulars of alleged overt acts of Roddan and Noye in the course of the alleged conspiracy (Exhibit 8, 11TB 2714 - 2739). However, this is more of a recognition of the weakness of the evidence against Noye alone than a justification for laying a charge of conspiracy because, again, by far the greater proportion of the alleged overt acts, so far as they were potentially incriminating of Noye, even if they constituted evidence about what Roddan said or did, came from Lynette Crimmins.

689 In the end, the explanation by the prosecutor to the court when the nolle prosequi was filed (incomplete as it was in failing to disclose the cloud which had descended over the credibility of Gwilliam because of the perjury charge) was that Lynette Crimmins was not able or willing to co-operate in giving evidence. No explanation was given of why the prosecution did not resort to its undoubted right to compel her to give evidence and, if she departed from the version of events which she had given to Gwilliam and Burton, and to Robbins, and in her deposition, which all implicated Noye, to confront her with those statements and, if necessary, have her declared hostile. Perhaps one can infer that if this course had been followed her credibility would have been destroyed in the face of a jury, or rendered so inconsequential that it could not support any adverse verdict. That may quite well be true but, whichever way one looks at the situation, each and all of these perspectives reveal how central and indispensable Lynette Crimmins' credit was to any hope of a successful prosecution against Noye.

690 In the end, when the prosecution concluded that she was not an available witness, or that her availability could only be compelled under circumstances which would further detract from her credit, the case was dropped and the nolle prosequi was filed. That decision to file the nolle prosequi was simply, in my view, a belated recognition of the inevitable, because the case against Noye could never have been hoped to stand without the Crimmins' evidence. Lynette Crimmins' credibility was so severely compromised that I do not see how an objective independent observer, uninfluenced by the prejudiced flow of accusations coming from the Gwilliam task force, could ever have regarded her as a witness whose evidence would support charges against a long-serving police officer, who was not suggested to have received any money (despite her statements), who had always denied the allegations of corruption against him and who actively co-operated and participated in making statements about them to the investigating officers as soon as he learned that he had been accused of improper conduct. Accordingly, I find that, on an objective basis, there was not a reasonable or probable basis upon which to lay the charges, notwithstanding that Inspector Robbins and some others believed that there was.

691 This then directs attention to the question of whether or not malice, in the sense of instituting and pursuing the charges against Noye for an improper or collateral motive, has been proved by the plaintiff. Malice can be established, regardless of whether or not the prosecutor was actually motivated by ill will towards the plaintiff. It is sufficient if his motivation was for some improper or collateral motive, such as a reluctant wish to comply with a requirement of his superiors to lay a charge when he, himself, did not consider that a charge was justified: A v The State of New South Wales (supra).

692 In this case, as the trial developed, two main bases of alleged malice amounting to improper purposes were directed against Inspector Robbins. The first was that he had instituted this prosecution because of his desire to advance his career by demonstrating diligence in a high profile, important and contentious case, at a time when he was hoping for confirmation of a permanent appointment to the rank of inspector (at the time he was holding only an acting or brevet position as inspector). Like Caesar - he was accused of being ambitious. The second basis for malice, in the sense of acting for an improper purpose, as it developed at trial, was that he was acting to find a scapegoat, in the person of Noye, and thus avoid more extensive embarrassment and humiliation of the Police Force, in what had turned out to be a disastrously misguided and inadequate investigation of the diamond thefts from the Argyle mine.

693 There was a great deal of evidence about Inspector Robbins' prior career in the Police Force; his eligibility for promotion to the rank of acting or brevet Inspector; the requirements for confirmation in that post; the system of promotion changing from seniority to merit-based promotion; the unsuccessful outcome of appeals by other officers against Inspector Robbins' appointment to that position; together with evidence from Assistant Commissioner (Crime) Ayton about the suitability of Robbins for that position and his subsequent formal appointment and later promotion. This stressed that, when it came to promotions, little credit was given for the arrest or apprehension history of a particular officer, or the profile of the cases in which he was involved; whereas much attention was given to overall judgment, leadership, organisational capacity and the ability to take responsibility at a senior level.

694 I completely reject the allegations that Inspector Robbins' conduct of this investigation or the institution of the charges which he laid against Noye was motivated or in any way influenced by a desire for self-advancement or promotion. There was not any basis in the evidence, in the history of events, or in the conduct of Inspector Robbins for any finding or inference that he acted for any such improper motive and I reject these allegations absolutely.

695 On the question whether or not there was malice in the sense of the pursuit of an improper motive of making Noye a scapegoat for the general deficiencies of the Police Force, I am satisfied that Inspector Robbins was not actuated by any such motive. There was, undoubtedly, very deep concern within the higher levels of the Police Force, and within the IAU, that there may have been some form of corruption involved in the conduct or supervision of the Argyle diamond inquiry. The termination of the first phase of the inquiry over the objections of the investigating officers, in retrospect, proved to be not only an embarrassing but a surprising command decision. The conclusion and recommendation by Noye that there was no basis to lay charges in his report of September 1992 (Exhibit 3), made that a double embarrassment and only provided grounds for the chorus of opinion that was convinced that corruption existed in relation to the inquiry to become more strident. Roddan's boastings of "burning" police officers, having officers in his pocket, having access to "Uncle Max" who would look after things and so on, as recounted by Lynette Crimmins, added fuel to the fires of suspicion.

696 The misjudgements of the significance of evidence which emerged during the first two phases of the investigation were so gross that the representatives of Argyle had, naturally enough, become extremely critical and distrustful of the police investigation and oversight. Once confessions were forthcoming from Lynette Crimmins and Barry Crimmins, and a more focused inquiry was begun during the third phase, it was only natural for the Police Force, and the higher command, to feel that there was a necessity to rehabilitate the morale and reputation of the Force. Accordingly, if a case of corruption existed, it would be necessary for the Police Force to act firmly and decisively, even if it meant that one or more of its own members would be shown up as being corrupt. I do not see anything improper in any of these reactions to the events as they unfolded. It was an occasion when deep suspicions were aroused and where the reputation of the Police Force was at stake. Fearless, independent and firm action needed to be taken if a case of wrongdoing was revealed.

697 By contrast, it would be seriously improper for any police investigator, in such a situation, to deliberately and knowingly, falsely accuse some other officer in order to deflect attention from other problems in the Police Force and thereby create a sacrificial victim for no better reason than to salvage a battered reputation of the Force. There are, of course, occasions in history when such scandalous victimisations have occurred, initially because of the corrupt or prejudiced behaviour of certain individuals and then, later, as the pursuit gathers momentum, by the ignorant or prejudiced approvals of others - the celebrated Dreyfus Scandal in France in the early part of the 20th century, is one such notorious example. There is always a danger of such an injustice occurring when any such scandal is suspected. The risk of this happening is one of the corrosive consequences of corruption, when necessary working relationships of trust and confidence become destroyed or impaired and when high morale is replaced by mutual suspicion.

698 This is one of the reasons why, whenever there is any suggestion of corruption, firm and adequate steps need to be taken by the leadership of the organisation to deal fully with the matters at the earliest stage. This did not happen in the Police Force in relation to the Argyle investigation between 1989 and 1993 and the results of that failure are, distressingly, only too clear to see.

699 In the present case, I am satisfied that Inspector Robbins was aware at all times of the seriousness of the situation and the consequences for any individual police officer of being wrongly accused of corrupt conduct. His dealings with Noye, as recorded in the interviews of 19 February 1993 (Exhibit 19) and 16 September 1993 (Exhibit 143) and his reports to Ayton (Exhibits 17 and 23) show that he was even-handed, patient and thorough, giving Noye every opportunity to present his explanations and to refute potentially incriminating allegations or inferences coming from Lynette Crimmins or elsewhere. His decision to charge Noye was not taken lightly and was discussed in advance with Zanetti and Ayton, and was also the product of much earlier discussion and advice from the State DPP.

700 I have already explained how I have concluded that the decision was, inevitably in the circumstances, influenced by the strength of the opinions of Gwilliam, Thoy and the Argyle security officers which were coming from the Lavender/Gwilliam task force. But that does not mean that the decision was improper or anything other than the product of an honest opinion by Robbins that the particular charges should be laid. Much later, when the shortcomings in the evidence came to be better appreciated, the DPP dropped the charges and no attempt has been made to revive them. However, I am satisfied that when they were made, Inspector Robbins was honestly of the opinion that they should be laid as part of his responsibility to put a suspected offender on trial for good cause. For this reason I also reject the plaintiff's submissions that the prosecutions were malicious in the sense of being instituted for an improper motive or to find a scapegoat for the more general failings of the Police Force.

701 The effect of these conclusions is that I am satisfied that Inspector Robbins was the prosecutor in relation to the criminal charges laid against Noye and that those charges were later terminated in favour of the plaintiff. I am also satisfied that the plaintiff has not established that, in instituting and maintaining the proceedings, Inspector Robbins acted maliciously. In fact the evidence establishes, and I find, that he acted only for the proper motives of instituting criminal proceedings against a person whom he believed should be put on trial for the offences charged. I reach these findings, notwithstanding my conclusion that in initiating the charges Inspector Robbins did not, objectively, have reasonable and probable cause to do so, because of the great extent to which the charges depended upon the credibility of Lynette Crimmins who could not be expected to be regarded as a witness of truth. In reaching that conclusion, I am satisfied that Inspector Robbins himself honestly believed that there was a proper basis for laying the charges, and that he reached that belief after taking advice from persons whom he was entitled to respect and rely upon in that regard. Objectively, however, it should have been apparent that in the face of Noye's denials, and his co-operation with the IAU investigation, the case for prosecution could not be made out on the basis of the tenuous credibility of Lynette Crimmins.

702 In relation to the criminal charges, there can be occasions where the absence of reasonable or probable cause for initiating the prosecution is itself some evidence of malice: see A v The State of New South Wales (supra) at [40], [90]. However, that is only because proof by a plaintiff that there was no reasonable or probable cause for instituting a prosecution may, when taken with all the other facts, show that the dominant purpose of the prosecutor in initiating the charge was for a purpose other than the proper invocation of the criminal law because it was an illegitimate or oblique motive. That possibility has been completely dispelled in the present case by the evidence which has satisfied me that Inspector Robbins honestly believed that there was a sufficient basis to charge Noye with the offences laid. The fact that, in different circumstances, and with the benefit of advice less influenced by the strong opinions of the Gwilliam team, a reasonable person should have reached a different opinion, does not detract from the integrity of the personal motives and animation of Inspector Robbins. All this means that the plaintiff's claims against Inspector Robbins must be dismissed.

Liability in respect of police disciplinary charges

703 I come to the internal disciplinary charges. These were instituted by Inspector Dawson, who was head of the Internal Investigation Branch ("IIB") of the Police Force. This was done because the IAU had no power or responsibility in relation to the institution of disciplinary charges. The reason for that was because of internal demarcation arrangements within the Police Force. However, Inspector Robbins was quite clear that whenever criminal charges were laid by an officer of his unit against a policeman, the details were passed on to the IIB for appropriate administrative action, as was done in this case. There is no evidence that any independent investigation of Noye's alleged conduct was done by the IIB and I am satisfied that the actual investigation and assessment of the significance of any case against Noye was conducted by Inspector Robbins, in consultation with Inspector Syme and Superintendent Watson, and then with superior officers at the assistant and deputy commissioner level.

704 Once the IAU investigation had been completed and the decision taken to charge Noye with criminal offences, the results of that investigation and its conclusions were put at the disposal of the IIB. Almost inevitably, disciplinary charges followed. The fact that they were in different terms, for example, relating to the disclosure of information on the police computer and relating to the ownership by the Gnowangerup farmer of the stolen firearms in Roddan's possession, does not change this. The supply of the results of the IAU investigation and the institution of the criminal charges against Noye meant, in practical terms, that once the IIB was given that information it was inevitable that the disciplinary charges would be laid as they were. It follows, therefore, and I conclude, as a matter of fact, that Inspector Robbins was the instigator of the internal disciplinary charges against Noye, even though he was not the actual complainant.

705 These internal disciplinary charges were simply held in abeyance, pending the outcome of Noye's trial on the criminal charges. When that prospect disappeared because of the filing of the nolle prosequi, I am satisfied that all the proceedings had effectively destroyed Noye's police career and that there was no prospect of him successfully returning to duty. As it was, his health had been adversely affected by the ordeal and there were, unquestionably, grounds justifying his discharge for medical reasons, and that was done. On his discharge, the disciplinary charges simply lapsed. However, it is, perhaps, significant to note that no attempt was made to bring those charges to a hearing before Noye's medical discharge, or for that matter, to postpone the date of the discharge to allow those charges to be heard and determined. Consequently, I conclude that, as far as was practicable, those charges were resolved in Noye's favour.

706 Because I have earlier concluded that the course of authority has established that an action for damages for malicious prosecution may not be successfully maintained in relation to internal professional or administrative disciplinary proceedings, it is not essential for me to address the issues of malice or the absence of reasonable or probable cause for the institution of those charges. However, again because of the length and importance of this trial, I consider that it is desirable that, I do, nevertheless, indicate the conclusions which I would have reached had those issues required determination.

707 The issues of malice and absence of reasonable and probable cause for the institution of each of those charges need to be determined separately. I shall address first the internal disciplinary charge relating to the unauthorised supply of information from the police computer to Roddan about the owner of the firearms stolen from Gnowangerup. This incident occurred in late January or early February 1993, certainly after Lynette Crimmins' allegations against her former husband, Roddan, and Noye, and after the commencement of the IAU investigation into her allegations. By that time, Noye had been warned by Superintendent Watson and Inspector Robbins not to discuss any details of the investigations with Roddan. It is therefore very surprising that he would have any such discussion with Roddan, let alone overlook Roddan's continued unlawful possession of the firearms, no matter how soon Roddan promised to hand them in, still less provide unauthorised information to him. There is Noye's own admission that he did this and his only excuse is that he was then under considerable stress at the time and feared that he was somehow being set-up by the IAU or by Argyle. He did, in fact, attempt to communicate with the Gnowangerup Police, and eventually succeeded in contacting them, to say that Roddan could be expected to arrive with the guns. Roddan never did, having taken the guns to the rightful owner and then taken the opportunity to receive payment of a reward for their return, which might well have involved some kind of imposition on the owner. This was clearly a breach of the regulations and there was evidence to support it.

708 I am satisfied that there was no absence of reasonable and probable cause for the laying of that particular charge, and I am also satisfied that this charge was not laid because of malice, whether by personal ill will towards Noye or for any improper or collateral purpose. Even had the laying of such an internal disciplinary charge been a ground for the maintenance of an action for malicious prosecution, that claim would have failed because of the inability to prove malice or the absence of reasonable and probable cause for instituting the charge.

709 I therefore turn to the three other disciplinary charges related to wilfully submitting a false and misleading report concerning the Argyle diamond investigations, the unauthorised supply of the confidential D'Anna report to Roddan and the unauthorised supply of a confidential soil analysis report to Roddan. These are all, in my view, constituent elements of, or overt acts in, the alleged conspiracy to pervert the course of justice. Any tortious liability of the defendant in the first action, Robbins, in respect of these, would if they were actionable, share the same fate as the claim which rests upon the laying of the criminal charges. In short, I am satisfied that these charges were not instigated by Inspector Robbins maliciously although, for reasons given in relation to the criminal charges, I have concluded that there was not reasonable and probable cause to lay the charge of wilfully providing a false and misleading report to recommend that the diamond theft inquiry should be written-off.

710 The charges in relation to unauthorised disclosure of confidential information comprising the D'Anna report, and earlier the soil analysis reports, rest on a different footing. Noye admitted that he had supplied Roddan with the soil analysis reports but claimed that he had authority to do so. He denied that he had ever supplied the D'Anna report, or a copy of it, to Roddan. These allegations did not depend on the evidence of Lynette Crimmins but, rather, upon Noye's own partial admission and, more especially, the evidence of Gwilliam who says that he witnessed the delivery of the soil analysis report and later remonstrated with Noye about the propriety of giving it to Roddan. The evidence that the D'Anna report was found in Roddan's possession depended entirely upon the evidence of Gwilliam about the circumstances of the alleged discovery of this document during the execution of the search warrant and, as we now know, Gwilliam was later charged with perjury in relation to that matter, which effectively meant that his credibility on that issue was gone.

711 Noye claimed that he had the express authority of Ayton to deliver copies of the soil analysis reports to Roddan, and that the grant of this authority should have been found on the tape-recording of conversations which he had with Ayton and Roddan on the occasion of the visit to L'Alba Café on 18 March 1992 but, as we know, that tape-recording has been lost or destroyed. Ayton denied ever giving such authority. This is an area of some difficulty because I accept former Assistant Commissioner (Crime) Ayton as a witness of truth. However, as I said when reviewing his evidence, I do not consider that he ever had a great deal of interest in the details of this investigation, or of Noye's conduct, or thought it necessary to keep records of the details of what he said. The loss or destruction of the tape-recording is itself somewhat disturbing but may be explicable if it had occurred in isolation. There are other instances, however, of tape-recordings, notes and other records crucial to this inquiry which had gone missing from secure storage within the Police Force. Thoy complained of this, Gwilliam complained of it and so did Noye.

712 There were many deep antagonisms between individuals and I am not prepared to exclude the possibility that, quite unknown to him, Ayton's tape-recording of this conversation had been destroyed by some person, or persons, within the investigation who had an improper motive in mind. Furthermore, I find it inconceivable that, if he had consciously been acting corruptly or with knowledge that the disclosure of the document was unauthorised, Noye would have given the soil analysis reports to Roddan in the presence of Gwilliam; all the more so when he knew, from the report of the earlier Thoy/Gwilliam inquiry, that those two officers had deep suspicions of corruption in the conduct of the first investigation.

713 By far the more probable explanation is that Noye believed that he did have the authority to hand over the copies of the soil analysis reports to Roddan and that he believed that they would be disclosed in any event in the interpleader proceedings. This belief was, in my view, engendered by Noye's appreciation of the interrelationship and mutual dependency of the issues in the interpleader proceedings and the diamond theft investigation; his strategy, then approved by his superiors, of attempting to have the interpleader proceedings brought to a hearing quickly so that that issue could be decided; and, by the general attitude of encouragement and approval which he had gained from Ayton in his discussions about the course of the inquiry and strategy which he was proceeding. There is also another possibility; namely, that because Noye himself had the conduct of this entire inquiry, without any direct supervision or direction, he had discretion to decide what information might be released in order to assist the advance of the inquiry.

714 Nevertheless, at the time the disciplinary charges were laid, Inspector Robbins had evidence that Noye had disclosed the soil analysis report, Ayton and Gwilliam both said that he did not have authority to do so, and Gwilliam said that the D'Anna report had been found in Roddan's possession in circumstances where it could only have come from Noye. At that point, Gwilliam's credibility was not seriously impaired or discredited. That did not occur until much later, and therefore I consider that it was reasonable and proper for Robbins to rely on that evidence and to cause those charges to be laid and, objectively, that there was a reasonable and probable basis for them to be laid. Again, I am satisfied that Robbins was not acting maliciously in any sense in instigating the preferment of those two unauthorised disclosure charges.

715 The plaintiff's claim in relation to the police internal disciplinary charges is, as earlier noted, only against the defendant Robbins. There is no allegation, nor could there be any basis for an allegation, that the second, third and fourth of those charges (the unauthorised disclosure of confidential documents and the unauthorised release of information about the ownership of the stolen firearms) was caused and instigated by Lynette Crimmins. The allegation of wilfully making a false report to recommend the termination of the diamond inquiry did, to a significant extent, depend upon the information provided by Crimmins but, as I have already said, I am satisfied that her allegations in this respect did not materially cause the laying of that charge, although they did spark the investigation. But the decision to act on her allegations and other information was not taken until much later and after much other information had been assembled.

716 Because I have concluded that Lynette Crimmins was not, either alone or together with Inspector Robbins, a prosecutor of the charges which were laid against Noye, it is not essential that I consider the separate issues of whether or not she acted maliciously or had reasonable or probable cause for acting as she did. Nevertheless, in view of the time spent in dealing with these issues at the trial, and in case it may be necessary for them to be reconsidered, notwithstanding my earlier conclusion, I have thought it proper to address them.

717 I have little doubt that Lynette Crimmins' initial disclosures to the police at the Warwick Police Station, and then on the following morning to Inspector Robbins and Inspector Syme of the IAU on 20 January 1993, were prompted by her animosity towards Roddan. She had been humiliated by his conduct over the preceding 12 months. She had left her husband for him; he had mistreated her and assaulted her on several occasions and led her into prostitution; he had induced her to lend, or give, him large amounts of money to the extent that her personal assets were nearly all depleted; and, he was refusing to repay her an amount of $8000 which she said she needed urgently for personal medical treatment.

718 Despite her denials, I am satisfied that she was drinking heavily before she went to Roddan's home on the evening of 18 January 1993; she argued with him; there was a fight and she was injured; and, she left and went to a friend's house where she called Noye. Noye visited and tried to calm and placate her but she continued to drink. Early the next morning, after Noye had left the home, she went back to Roddan's house where there was a further altercation. She was injured, cutting her hand and arm badly. She then became angry and hysterical. An ambulance was called but she rejected treatment. The police were called and she abused them in obscene terms, leading to her arrest. At the police station, still in a hysterical frame of mind, she made extreme allegations about police corruption and Roddan's involvement in the diamond thefts. This led to the investigations by the IAU officers and the statements which she gave on 20 January 1993 implicating Roddan. At that stage, however, she did not do or say anything directly to implicate Noye.

719 Once she had made these allegations and realised that any prospect of a continuation of the relationship with Roddan had vanished, I am satisfied that she decided that she should tell the police of the whole of her involvement and of Roddan's involvement in the diamond stealing activities. Again, this was prompted largely by well-found feelings of resentment and hostility towards Roddan but also, once the initial disclosures had been made, by a realisation that, having also implicated herself, it was in her interests to give a full account of events to the police and to co-operate with them in pursuing what she realised was a very important investigation of major public significance. Her allegations, of course, incriminated not only Roddan and herself but her former husband, Barry Crimmins, for whom, it appears, she retained a measure of sympathy. Once she realised where her disclosures were likely to lead, I consider that she also concluded that it was in her own interests, and in the interests of Barry Crimmins, to provide information which dealt with allegations of police corruption because of frequent boastings by Roddan to her about his involvement in this.

720 It is difficult to tell whether or not, at this point, Lynette Crimmins was actuated by personal hostility or ill will towards Noye. However, as the months passed in early 1993 and by the time that she was making statements to Gwilliam and Burton in July (Exhibit 24), and later to Robbins (Exhibits 28 and 29), I am satisfied that she did have a deep-seated prejudice towards Noye and regarded him, through the clouds of her prejudice, as acting corruptly in conjunction with Roddan. It seems to me that this belief was mostly engendered by the statements and boastings of Roddan himself. However, when she realised that Noye was meeting frequently with Roddan and Noye appeared to be sympathetic towards him and of the view that there were no grounds to establish that the Newton diamonds had been stolen from Argyle, she put the worst interpretation on those matters and, following her long prejudice against police officers, concluded that Noye was corrupt. Once she had reached that conclusion, I am satisfied that she did not hesitate to embellish it by enlarging upon the allegations made against Noye as time passed.

721 This evolution of her conduct was also prompted by her realisation that there might be an opportunity for her to obtain leniency, or special treatment, for herself and Barry Crimmins, if she assisted in exposing what she knew some police, in particular Gwilliam and Thoy, believed was widespread corruption affecting the entire investigation. From then on the allegations which she made against Noye were also seen to be very much in her own self-interest. An attitude of mind which, I am satisfied, was almost certainly encouraged by the Gwilliam task force and by the Argyle security personnel, including Burton, with whom she began meeting personally at regular intervals.

722 The question then is whether or not Lynette Crimmins' conduct in making these allegations against Noye was prompted by legitimate purposes; that is, disclosure of information which she believed to be material to a police investigation and which she either knew, or believed to be true, or which had come to her knowledge without her being able to vouch for its accuracy but which, nevertheless, was of sufficient importance that it should be disclosed to the police or other authorities to enable them to carry out the investigations in hand.

723 I am satisfied that, to a considerable extent, Lynette Crimmins' motives in this regard were mixed. As stated, she was initially motivated by a desire to implicate Roddan because of the way she had suffered by his behaviour towards her. Secondly, she realised that it was necessary that she should disclose the truth about the involvement of Roddan, Barry Crimmins and herself in the diamond stealing and distribution and, at least to this extent, that these disclosures were very much in the public interest in leading to the detection of criminal conduct and the apprehension of the offenders involved. When it comes to the allegations which she made against Noye, it seems that she did believe (because of what Roddan had told her) that Noye was acting corruptly and, as a result, then interpreted her own observations of his conduct from that viewpoint and, having done so, later embellished her allegations. This was actuated by a prejudice which she developed against Noye only after the events of 19 and 20 January 1993, and because she then began to associate Noye with Roddan whom she loathed.

724 After that, the disclosure of information and allegations about Noye were seen by her as possibly bringing her leniency and being in her own personal self-interest. Therefore, her allegations against Noye were prompted by the combination of a belief, arrived at in the manner described, that Noye was corrupt and, by a desire to punish Noye because of his imagined association with Roddan, and in order to secure beneficial treatment of herself. Does this amount to the institution of a prosecution as a result of malice within the meaning of these terms at law? I do not think that it does because she did not go as far as actually instituting any prosecution, or of rendering the institution of a prosecution inevitable. Her motives in making the allegations were far from being innocent, but they do not appear to me to differ materially from a situation where one of several offenders in a criminal enterprise, once discovered in his or her crime and apprehended, decides to tell the police about the activities of his or her associates and, when implicating them in criminal conduct, embellishes their role and diminishes his or her own, out of a desire to improve his or her own position.

725 Did Lynette Crimmins have reasonable and probable cause to do what she did? Indeed, I do not consider that this question can be separated from the question of whether or not she actually instigated or instituted the prosecution. Her allegations against Noye depend, to some extent, upon what she was told by Roddan, and by Barry Crimmins and the interpretation which she placed on that information. Had she been acting responsibly, she must have realised that Roddan was prone to exaggeration, self-aggrandisement and downright deception, but she was ready to accept his statements because of his apparent affluence, confidence and influence.

726 However, in relation to the allegations which she made about information derived from her own experience or observation, such as statements said to have been made in her presence by Noye that he was going to have first pick of the diamonds; that he was going to be paid $200,000; that Barry Crimmins would be told that the investigation was going to be written-off and that he should shut up; that he was paid amounts of cash ranging from $200 to $300 or more by her on three occasions "because he was getting hungry"; that he handed over a manila file with papers in it to Roddan at a meeting at a café in Northbridge at the same time saying the Devenish statement was missing and that it will cost more to get it; that he compiled a false report about the property stolen in the burglary at Lincoln Street and assisted in submitting a fraudulent claim to the insurer; and, that he arranged, in conjunction with Roddan, for her to be paid $10,000 cash on the claim, rather than obtaining property to replace the "stolen items", and then took $1000 cash from her in order to finance the trip to Victoria - these can only have been true or false to her own knowledge. None of those allegations has been established against Noye. He has denied them all in these proceedings and I am not disposed to accept the testimony of Lynette Crimmins, in the face of those denials, that any of those allegations is true. Therefore, on the basis that they are false, although it is unnecessary to make findings to that effect in the claim for malicious prosecution having regard to my earlier conclusion, I am satisfied that these were allegations made by Lynette Crimmins with a deliberate intention of causing harm to Noye, and out of a desire to improve her own position, and that these do reveal malice on her part. Equally, it follows that they were made without reasonable and probable cause but, again, I stress, that that would be a conclusion of legal significance only if her conduct had amounted to the instigation of a prosecution against Noye which, I am satisfied, it did not.

727 When it comes to the plaintiff's claim for damages for malicious prosecution against Lynette Crimmins, I am satisfied that the claim must fail because she was not the prosecutor, or in the relevant sense, the instigator of any of the criminal charges which were laid against Noye. This is an important feature of the case, not merely because it defeats the plaintiff's claim against her, but because it emphasises that, for the tort of malicious prosecution, there is an important distinction between making an allegation of serious wrongdoing against an individual, and actually setting the law in motion by instituting a formal prosecution against that person. The act of making a false or inadequate allegation of criminal misconduct against a person may give rise to liability by the accuser for damages for defamation, unless it can be shown that the accusations were made in circumstances when absolute or qualified privilege applies. The protection which the law gives by the tort of defamation against false or defamatory accusation is the measure of relief/protection regarded as sufficient for such conduct. The action for malicious prosecution involves additional ingredients, namely, the need for proof of the absence of reasonable and probable cause for the institution of proceedings, and actual malice, which are ingredients which the law regards as essential before liability can be established in a situation where the public interest of investigating and prosecuting crime must be measured against the interests of any person against whom such a prosecution has been resolved favourably. Lynette Crimmins did not, herself, go as far as setting the course of law in motion by instituting a prosecution. The result is that this cause of action against her must also be dismissed.

728 The conclusions which I have reached in relation to the claims for damages for malicious prosecution also serve to dispose of the claims for damages for abuse of process, both in relation to the criminal proceedings which were instituted and to the police disciplinary charges.

729 Because I am satisfied that Inspector Robbins laid the criminal charges against Noye, honestly believing that the evidence then available which warranted Noye being put on trial for the offences charged, and that he acted without malice in doing so, it follows that there is no basis for finding that Inspector Robbins was abusing the processes of the court in instituting those charges. It would be enough to support this conclusion, simply to find that the plaintiff had failed to prove that Inspector Robbins was putting in motion processes of the court for a purpose which the law was not intended to serve. I am certainly satisfied that the plaintiff has failed to prove this, but I would fail to reflect the realities of this litigation if I did not make the positive finding, which I do, that I am satisfied that the criminal charges laid by Inspector Robbins were laid for a proper purpose.

730 Similarly, the finding that Lynette Crimmins did not institute, and was not the effective instigator of the criminal charges laid against Noye, also means that no claim for damages for abuse of process against her in respect of those charges can succeed because it was not she who put the processes of the court in motion.

731 Turning to the disciplinary charges and assuming, without deciding, that an action for abuse of process will lie for the institution, for an unlawful or improper purpose, of disciplinary proceedings before a statutory administrative tribunal (unlike the action for malicious prosecution), I am again satisfied that, although he was effectively the instigator of these charges, Inspector Robbins did instigate them for proper purposes; namely, because of his honest belief that there were grounds upon which a serving police officer should be charged with disciplinary complaints, and not for any indirect or collateral motive. On that basis, therefore, the claim for damages against him for abuse of process in respect of the disciplinary charges also fails.

732 There is no basis to find that Lynette Crimmins was the initiator or instigator of the police disciplinary charges, anymore than she was the effective instigator of the criminal charges. Accordingly, any claim for damages against her for abuse of process in relation to the disciplinary charges, again assuming without deciding such a cause of action will lie in relation to statutory disciplinary proceedings, must fail.

733 This cause of action was advanced only against Inspector Robbins. Again, however, because I am satisfied that Inspector Robbins acted in the honest belief that the evidence available to him disclosed a case to establish the offences alleged against Noye which warranted him being charged and put on trial, there can be no basis for any conclusion that Inspector Robbins acted in bad faith or for an improper or collateral purpose and with intention to harm Noye. Nor is there any basis for a conclusion that in charging Noye, Robbins knowingly acted beyond power. Similarly, my finding that Inspector Robbins did not act maliciously in charging Noye also leads to the finding that he was not acting maliciously with the intention to harm the plaintiff or by doing so acted in excess of the proper exercise of his powers.

734 These observations in relation to a misfeasance in public office apply equally to Inspector Robbins' conduct in instigating the disciplinary complaints against Sergeant Noye, by referring the substance of his conclusions and evidence to Inspector Dawson, who actually laid those complaints. It follows that the claims for damages for misfeasance in public office against Inspector Robbins fail.

735 As recorded earlier in these reasons when analysing the components of the tort of injurious falsehood, Inspector Robbins instituted criminal charges against Noye, and was responsible for the instigation of the internal police disciplinary proceedings against him. These were not publications of false statements made maliciously but, rather, were allegations of criminal offences and disciplinary offences, respectively. These were instituted before the appropriate court or statutory tribunal which had the jurisdiction to hear them and to determine whether or not any of the charges or complaints had been made out. Accordingly, these are not statements of the kind to which this tort applies and I am satisfied, in this case, that none of the charges or complaints was laid or instituted by Inspector Robbins maliciously. For this reason, the claims for damages against Inspector Robbins for injurious falsehood fail.

736 In relation to Lynette Crimmins, this cause of action is advanced because of her allegations (comprising both oral and written statements which she made to various police officers) stating that Noye had participated in an agreement with Roddan to pervert the course of justice by writing off the second phase of the Argyle diamond stealing inquiry; that Noye, had in various ways, admitted that he was to be paid $200,000 by Roddan and that he was to get first pick of the diamonds; that she had been present at a meeting between Roddan and Noye at which Noye handed over a beige folder containing a large number of documents and saying words to the effect that, there it all is, except for Devenish's statement and that it will cost a lot more money to get his statement; that she had on three separate occasions, at Roddan's direction, paid cash amounts to Noye varying between $200 and $300 (later saying that the payments were as much as $400 or $500), because Roddan had told her that Noye "was getting hungry"; that Noye had compiled a false inventory of items said to have been stolen from the Lincoln Street unit in September 1992 and had assisted her in making a false and fraudulent insurance claim against the SGIO in respect of those losses; and, that Noye had demanded from her, and had received, $1000 in cash from the proceeds of the fraudulent insurance claim as his share to pay his travel expenses to Victoria to see Barry Crimmins in order to tell him to "keep his mouth shut".

737 Lynette Crimmins did, on the various occasions which are recorded in the evidence which I have already analysed, make statements to those effects to police officers. All of those allegations were of a character which can be described as being calculated, in the ordinary course of things, to produce actual damage. Equally, each was a statement which was likely to injure Noye in his profession or occupation. That leaves the question of whether or not each or any of the statements so published by Lynette Crimmins was false and, if so, whether it was published maliciously.

738 As earlier observed, a false statement made by a person who believes it to be true, if not made for the purpose of protecting or advancing her own interest, but solely or primarily for the purpose of injuring the plaintiff's business or occupational interests, will be malicious, notwithstanding the person's mistaken belief in the statement. Lynette Crimmins' position in relation to this aspect of the case is that, in relation to many of her allegations against Noye, she was merely repeating statements which were made to her by Roddan and which she believed to be true. However, this does not apply to the foregoing statements which I have identified which are based upon Lynette Crimmins' direct evidence of what she saw or heard Noye do or say.

739 That leads to a question of whether or not the statements were made maliciously in the wider sense of that term which I have attempted to distil from the authorities. If Lynette Crimmins made these statements (assuming for the moment that they are false) in the belief that, having regard to her circumstances, the time had come to reveal all that she knew about the Argyle diamond affair, Roddan's conduct and his involvement with police in the investigations, so that the authorities could determine what action, if any, should be taken, then she would have been acting for a lawful purpose and without malice. She certainly claims, and her counsel submits, that that is all that she did and, further, that the statements which she made were all true.

740 However, I do not accept that explanation or those submissions. In my view, when making these statements, Lynette Crimmins was acting from a variety of motives and purposes. Initially, she was motivated by animosity towards Roddan and, once she realised that by doing so she had implicated herself in serious criminal conduct, she was acting with a view to secure the best outcome for herself by obtaining favourable co-operation from the authorities in return for implicating others in alleged criminal conduct and then causing serious public concern. The animosity which she had towards Roddan was extended to Noye. I have no hesitation in concluding that when giving evidence at this trial she displayed conspicuous ill will towards Noye. I am also satisfied that in making these statements to the police, which I have summarised, concerning Noye, she was also activated by personal animosity and a desire to denigrate him by making unfounded allegations against him.

741 The nature and severity of the allegations which Lynette Crimmins made against Noye increased and expanded over time. On 20 January 1993 all that she was prepared to say against Noye was that she had been told by Roddan that he was to be paid $200,000 for writing-off the inquiry but, as time wore on and she was interviewed by Gwilliam and Burton, and then later by Robbins, the allegations expanded to include being present when Noye made admissions that he was to be paid $200,000 and that he would have first pick of the diamonds.

742 It was also later that she alleged that Noye had accepted cash payments from her of $200 to $300 on about three occasions (at this trial this accusation increased to payments of $400 to $500), from her earnings from prostitution, because Roddan said that he "was getting hungry". Apart from her word, there is no evidence that any such payments were made to Noye or that unexplained money was found in his possession or control - although, admittedly, the amounts in question may not have been readily identifiable had the payments been made. Nevertheless, these allegations were only made by Lynette Crimmins well into the third phase of the investigation and they do not appear to have been accepted by any of the police officers or by the DPP because no charges in respect of them were ever laid.

743 With regard to the allegations made by Lynette Crimmins that Noye falsely and fraudulently compiled a false inventory of goods stolen from her Lincoln Street home; that he then assisted in making a fraudulent insurance claim against the SGIO; and, then demanded and received $1000 from the insurance proceeds, to meet his expenses to travel to Victoria to see Barry Crimmins to tell him to "keep his mouth shut" - the only evidence in support of the allegations is from Lynette Crimmins herself. Here, however, Noye was charged with participating in a false and fraudulent insurance claim against the SGIO in respect of the alleged thefts from Crimmins' home, and the allegation that he travelled to Victoria to see Barry Crimmins to tell him to "keep his mouth shut" was part of the later overt acts of the conspiracy to pervert the course of justice which were in the indictment against Noye. Noye was committed for trial on those charges but each of them was withdrawn by the nolle prosequi which was filed. I am satisfied that these allegations were also made by Lynette Crimmins against Noye out of the malice which she had by then developed towards him and in an attempt to secure preferential treatment for herself on the disposition of the offences of conspiring to steal diamonds from the Argyle mine, which she had admitted.

744 The essential question which remains is whether these statements made by Lynette Crimmins to the police, while being malicious and calculated to cause harm to Noye, and causing harm to him, were false. While there are some close similarities between this tort and the tort of defamation, one significant difference is that the injurious statement is not presumed to be false, as a defamatory statement is presumed to be false, so obliging the plaintiff to prove affirmatively that it was false: Burnett v Tak (1882) 45 LT 743; Roberts v Gray (1897) 13 WN (NSW) 241; and, generally, Fleming, G J The Law of Torts 9th ed (1998) at 779.

745 At all times Noye has denied the truth of these allegations made against him by Lynette Crimmins. He denied them to Inspector Robbins and to Superintendent Watson in the various interviews which he had with them. He went to Ayton and Zanetti to demand that the police conduct a proper investigation into the allegations which had been made against him and against Superintendent Kiernan by Lynette Crimmins. Insofar as the DPP laid indictments involving affirmations of certain of the allegations made by Lynette Crimmins against Noye, his attempt to prove those was abandoned by the filing of the nolle prosequi. Noye has denied each of those allegations when giving evidence in this trial and his denials have not been shaken by cross-examination or by any other evidence adduced at the trial. Therefore, proof of the falsity of these claims reduces to the question of whether or not I am satisfied, on the probabilities, that Noye's denials of these allegations should be accepted.

746 There is no onus of proof upon Lynette Crimmins to establish that the allegations are probably true, even if, as a matter of evidentiary burden, her case would succeed if she did so. It is not enough for me to be left in a state of uncertainty over whether Noye's denials are more probable than Lynette Crimmins' affirmations of these allegations, because that would mean that the plaintiff had failed to discharge the onus of proof which rests upon him.

747 The decision I make in this regard must be made on the evidence which has been adduced in this case. It is quite distinct from the question of whether or not, at the time the allegations were made or the charges laid, other persons, including Inspector Robbins, honestly believed the allegations to be true; or that they were sufficiently supported by other evidence to warrant the laying of charges; or that there existed, objectively, reasonable grounds for treating the allegations as true. The question for present decision is whether, on the evidence adduced at this trial, and only that evidence, I should be satisfied on the probabilities that these allegations are false. Having regard to my assessment of the credibility of Lynette Crimmins, as described in several earlier passages in these reasons, and to my conclusions that none of the evidence given by Noye in these proceedings was refuted, on this issue of credibility, I accept the evidence of Noye that these allegations made against him by Lynette Crimmins are false and I find that he has proved that component of this cause of action against her.

748 The final question is whether or not these injurious falsehoods have caused Noye damage. Special damage must be proved of a kind which is calculated to injure the plaintiff in his trade or occupation or "which interferes with prospective advantage even of a non-commercial nature": per Fleming J G, (op cit), at 778.

749 In this regard it is important to recognise the impact of my earlier finding that it was not Lynette Crimmins' evidence alone which led to Noye being charged, committed and then indicted for the offences laid. Inspector Robbins and others realised the shortcomings of the credibility of Lynette Crimmins and looked for other evidence to corroborate her allegations.

750 Those falsehoods, and a number of other matters, led to the opening of the IAU investigation into alleged police corruption against Noye and others but that was conducted in conjunction with the third phase of the investigation into the Argyle diamond thefts. It was a combination of the information obtained from Barry Crimmins and much other circumstantial evidence which led to Noye being charged. Lynette Crimmins' allegations were, of course, taken up by Gwilliam and the Argyle security staff, who accepted them without the reservations which Inspector Robbins properly recognised were necessary. It was a combination of the influences of the allegations by Lynette Crimmins, the admissions of Barry Crimmins, the investigations of the Lavender/Gwilliam team and inferences arising from circumstantial evidence which ultimately led to Noye being charged, committed and being indicted for trial.

751 Lynette Crimmins' allegations were part, no doubt a significant part, but still only a part of this composite set of circumstances which resulted in Noye being charged and suffering damage to his professional reputation and career. Nevertheless, they continued to be a material part of the case against Noye and, in the events which happened, it was the realisation that Lynette Crimmins' evidence could not be adduced, or if led was unlikely to be accepted, which was the principal reason for the nolle prosequi being filed.

752 Accordingly, it must be said that Lynette Crimmins' allegations against Noye were a material cause in him being charged, and remained a material cause in that charge progressing to a committal, and eventually to the presentation of indictments. All that damaged him in his person, notwithstanding the fact that the ultimate damage was also due, to no insignificant degree, to a pattern of incongruous and injudicious behaviour by Noye himself, and evidence coming from Barry Crimmins and others - particularly Gwilliam, as corroborated by Schubert - with regard to the D'Anna report.

753 It must also be said that other aspects of Noye's conduct which resulted in charges being laid against him could not be attributed in any direct sense to allegations made by Lynette Crimmins, although they were also responsible for the close investigation into his conduct being undertaken. These other matters include the allegation of disclosure to Roddan of the confidential D'Anna report; the disclosure by Noye to Roddan of the CRA soil analysis reports at the meeting at the L'Alba Café on 25 March 1992 and, in relation to the police complaints, the unlawful disclosure to Roddan of the name of the owner of the stolen firearms about which Roddan enquired. Those allegations, and the evidence supporting them, contributed materially to the overall decision that Noye should be charged because they suggested that there were a number of offences or irregularities by Noye which were too numerous to be explained away by coincidence and which, therefore, outweighed his denials.

Therefore, in relation to the claim for damages against Lynette Crimmins for injurious falsehood, I consider that the plaintiff is entitled to judgment and damages which must now be assessed.

754 In the light of my findings, it is strictly unnecessary to determine the amount of damages which would be recoverable by the plaintiff in either action had liability been established for malicious prosecution. This also applies in relation to the claims against Inspector Robbins for misfeasance in public office and injurious falsehood. Nevertheless, I consider that I should do so provisionally in case it ever becomes necessary to have such a determination. However, the claim in injurious falsehood against the defendant Crimmins does require damages to be assessed.

755 The category of damages recoverable for malicious prosecution have long been accepted to be those identified by Holt CJ in Savile v Roberts (1698) 1 Ld Raym 374 at 378; (1698) 91 ER 1147 at 1149 - 1150, being damage to the plaintiff's fame or reputation; damage to the plaintiff's person; and, damage to the plaintiff's property. Once damage under any one or more of the three heads is proved, the award of damages is at large subject only to the condition that the damages must not be grossly disproportionate to the losses or injuries sustained. The reflection upon his integrity and the disgrace associated with a charge for these offences, if wrongly brought and maintained, would also undoubtedly tend to cause injury to the plaintiff's reputation and good name. I am satisfied that this in fact occurred in the present case and, accordingly, damages under the first of the characterisations would therefore be available. However, damages to personal representation, as distinct from damages to reputation reflecting on occupational or commercial interests, are not recoverable for injurious falsehood.

756 The charges laid against Noye plainly involved a potential risk of imprisonment if convicted, and this is sufficient to provide a basis for an award of damages under the second category: Houghton v Oakley (1900) 21 LR (NSW) 26. In fact, Noye's liberty was curtailed by these charges. Having been charged on complaint, when he came before the Magistrates Court he was placed on bail in respect of all the charges in an amount of $10,000. That bail was renewed from time to time but the fact that he was subject to bail is itself a restriction upon his liberty.

757 Damages for pecuniary loss would be recoverable and would include the legal costs of defending the charges: Berry v British Transport Commission [1962] 1 QB 306, and the financial consequences of the destruction or damage to reputation which has been caused.

758 I am satisfied that as a result of the anxiety which was caused to the plaintiff by the charges which were laid, and from this I do not exclude the anxiety which arose during the course of the investigation which led to the charges being laid, Noye developed depression and required medical attention and supervision. He suffered from continuing depression for several years, which is presently under control.

759 I have no doubt that the laying of the charges caused Noye to be shunned by many of his former police colleagues and contemporaries and that that ostracism has continued to the present. The pendency of the charges against him continued for almost five years. Even when the nolle prosequi was filed, and the prosecution was abandoned, there was no public vindication of his position such as will often occur from a verdict of acquittal by a jury after trial. The statement by the prosecutor when presenting the nolle prosequi to the court was certainly not any vindication of the plaintiff's claims of innocence, nor any acknowledgement that the prosecution had been wrongly or mistakenly instituted. In fact it was quite the reverse and was, unfortunately, a rather grudging abandonment of the prosecution with the clearest of implications that it was being presented because of problems with securing evidence, rather than out of any recognition that the plaintiff was not guilty of the charges laid.

760 In relation to pecuniary losses, the plaintiff advanced evidence concerning the loss of earning capacity consequent upon his retirement from the Police Force on medical grounds on 14 October 1999 until notional retirement at the age of 60 on 16 January 2004. The details are contained in Exhibit 153 and, on the basis that he would have remained in the rank of senior sergeant, which I am satisfied is the only approach which could have been taken, his loss of salary (before tax) for the period is put at $266,250 and the value of the loss of fixed allowances claimed is $4983. There is also a claim for loss of the benefit of employer superannuation contributions totalling $31,950 bringing the asserted total loss of earning capacity to the period to $303,183. However, this calculation fails to take into account the effect of taxation payable on salary and must be reduced and adjusted for that reason.

761 Noye's superannuation payout for total and permanent disability on compulsory retirement was approximately one year's salary. In the course of his evidence Noye said that, after the charges were withdrawn, his pay and allowances were reinstated in full and that his retirement payment was 7/8ths of one year's salary and that this had been placed in his superannuation fund.

762 The claim in Exhibit 153 makes no allowance for the early receipt of the superannuation payment on retirement in January 1999 - in effect an acceleration of some 41/2 years - which is a countervailing benefit. The calculations also fail to take into account the plaintiff's earnings from other sources after retirement from the Police Force. These are listed in par 10 of Exhibit 147, again on a gross or before tax basis which require adjustment for that reason, however the details are in the annual taxation notices of assessment.

763 The calculations of lost wages for a detective sergeant, plus allowances for the period 19 October 1999 to 16 January 2004, shown in Exhibit 153 (at page 3) (on a gross or pre-tax basis), are as follows:

(a) Loss of gross salary for the period (taxable) $266,250

(b) Loss of allowances (tax free) $4,983

$271,233

Adjusting the loss of gross salary for the tax payable on these levels of income for the 1994 - 2004 period, produces the following results:

764 These figures are derived from the applicable tax tables for the relevant periods, on the basis that the salary and allowances mentioned comprised all the income of the taxpayer; that he had no special deductions or rebates (dependent family members or otherwise); and, that the full 1.5 per cent Medicare levy was payable. These are the assumptions least favourable to the plaintiff, which have been adopted in the absence of evidence to the contrary. The tax tables are published by the ATO and are available on http://www.ato.gov.au.

765 Accordingly, the total loss of net (after tax) income for the period becomes:

$271,233

Less tax (including Medicare levy) $97,981

$173,252

766 It must be recognised that this figure is somewhat distorted and reduced because of the fact that Noye's salary was wholly suspended from 6 October 1994 (Exhibit 5(1), 11TB 2665). In the 1998/99 tax year, after the nolle prosequi had been filed, his salary and allowances were reinstated and all arrears (for the period of suspension) were repaid. That lump sum payment of arrears, put Noye in a higher tax bracket for the 1998/99 tax year, and he was therefore obliged to pay more tax than would have been payable had his salary been paid regularly throughout the period of suspension. There is insufficient evidence to make a special adjustment for this extra tax liability, but it clearly was suffered (see correspondence with ATO in Exhibits 130 and 132). The extra tax liability appears to be of the order of $2,820 or thereabouts (Exhibit 132, 15TB 3703).

767 In the circumstances, I consider that I should accept the apparent effect of this and, by so doing, treat the total net financial loss for the period as $176,072 rather than the $173,252 produced by the above calculations.

768 Since his retirement on 19 January 2004, Noye has been earning a diminished income from other sources of employment. He would, of course, have been free to do this after his planned retirement in January 2004. For that reason there should be no reduction in damage for earnings after January 2004. However, net earnings received during the period 10 September 1999 to 16 January 2004 must be brought to account.

769 The earnings by Noye during that period are partly discernable from his income tax returns for these periods (Exhibits 129 to 134 inclusive). There is some difficulty in identifying the net income earned from private employment or activities. However, as best as I can determine, the non Police Force income over these years is as follows:

Note: For the 2003/2004 tax year, only the net income derived up to 19 January 2004 should be brought to account. Accordingly, adjusting the figure of $15,060, by taking 7/12ths for this period of slightly less than seven months, produces a net income for the relevant period of $8,785.

770 This brings the total net earnings received by Noye for the period 10 September 1999 to 16 January 2004 to $32,059. This must be set off against the net loss of earnings during that same period which would have been received by Noye had he remained in the Police Force.

771 Accordingly, the total net loss of earnings for the period, after taking into account the other net earnings received becomes:

Lost earning capacity $176,072

Less net income earned $32,059

$144,013

772 For reasons previously explained the figure of $144,013 should then be adjusted for contingencies, to take into account the possibility that Noye may not have continued in the Police Force until 19 January 2004. For that contingency, I consider that the figure should be reduced by 5 per cent leaving an adjusted net loss of $136,812 for the period of reduced earning capacity.

773 The loss of extra employer superannuation contributions for this period, shown in Exhibit 153 as totalling $31,950, should also be discounted by 5 per cent for the same reasons, bringing that figure to $30,353.

774 The superannuation benefit of 7/8ths of retirement salary paid on 19 January 1999 constituted an accelerated receipt of that benefit. The payment was received about four and a half years earlier than intended retirement. The value of the acceleration of the benefit of this payment of $51,512 (see Exhibit 153), calculated on the 6 per cent compound discount factor for 4.5 years (0.7697), is approximately $11,850, and must be brought to account as a credit.

775 It is therefore now possible to conclude that the pecuniary loss to the plaintiff for loss of earning capacity caused by his early retirement from the Police Force is:

Loss of net earning capacity after discount for contingencies

Loss of benefit of employer superannuation contributions after discount for contingencies

Less accelerated benefit of earlier receipt of superannuation payment

776 This is the value of the loss as at 19 January 1999, some seven years and three months ago. The plaintiff claims interest pursuant to s 32 of the Supreme Court Act 1935 on damages awarded. There does not appear to be any reason why damages on this sum should not be awarded.

777 The rate of interest should be 5 per cent per annum on the loss of earning capacity contents ($136,812), to take into account the after tax benefit of such interest where it becomes imbedded in the total award of damages. For the loss of the benefit of superannuation contributions ($30,353), I consider that interest should be allowed at the higher rate of 10 per cent per annum, to recognise the compounding effect of contributions within the fund and its lower tax environment. The result is that the interest on these components, at these two different rates, for the period 19 January 2004 to 30 April 2007 (three years and 101 days), is:

778 The interest component of $32,361 must be added to the earlier figure, producing a total component for net pecuniary loss of:

$155,315

$32,361

$187,676

779 Although there was evidence that Noye incurred costs in relation to the engagement of solicitors in relation to the defence of the charges, the amount expended in this regard was never proved and, therefore, must be excluded from any computation of damages.

780 Treating the question of damages as being at large, and having regard to the need for a degree of moderation in the assessment, I would have assessed damages for malicious prosecution, had they been applicable, in this case as follows:

Injury to person, health and restriction of liberty

781 In such a case, aggravated damages and exemplary damages are both available and, through his counsel, the plaintiff made submissions that such additional damages ought to be awarded. However, this was only pressed faintly and I do not see any basis in this case for an award of exemplary damages. The consequences of the prosecutions for Noye have indeed been very profound and the effect of them upon his health and self-confidence are conspicuous. This would provide a basis for aggravated damages, but the allowance which I have made in the heads of damages for injury to person takes this into account and no additional allowance under this heading would therefore have been necessary.

782 These are the damages which I would have awarded had liability been established in relation to the claim against Inspector Robbins in relation to any of the causes of action advanced against him. The same observations apply in relation to the claim for malicious prosecution made against Lynette Crimmins.

783 The extent of the damages recoverable for the tort of injurious falsehood, when the falsehood impacts upon the person, rather than the land or goods, of the plaintiff has only been sparsely examined in the authorities. A discussion of the principles is found in McGregor on Damages 17th ed (2003) at pars 40-015 to 40-020. This reveals that the damages may be substantial; that they may include pecuniary loss; and, since Joyce v Sengupta [1993] 1 All ER 897, where pecuniary loss has been proved, additional damages for non-pecuniary loss. This decision was followed and approved in Khodaparast v Shad [2000] 1 All ER 545.

784 As falsehood published by Lynette Crimmins had the effect of causing pecuniary losses and damages to professional, or occupational or commercial interests of a non-pecuniary kind, I am satisfied that a similar approach to the assessment of these damages, which has provisionally been undertaken for the provisional assessment of damages for malicious prosecution, should be followed. There is one important modification; namely, that allowance must be made for the other factors which also contributed materially to the loss and damage suffered by Noye. These should be accommodated to moderate the assessment. On this basis, therefore, I would award damages against the defendant, Lynette Crimmins, for injurious falsehood, as follows:

785 In the final written submissions for Lynette Crimmins there was a suggestion that the cause of action for injurious falsehood, if it produced damage in 1993 or 1994, might mean that this present action, instituted against Lynette Crimmins in November 2000, would be outside the applicable six year limitation period. The claim in injurious falsehood was expressly referred to by counsel for the plaintiff in opening and was the subject of the express attention and treatment in the plaintiff's written submissions. An application was only made on behalf of Lynette Crimmins to amend so as to plead a limitation defence long after the evidence had been completed and after an adjournment of several months to allow time for final written and oral submissions. This application for leave to amend her defence to plead s 38 of the Limitation Act 1935 (WA) was foreshadowed on 14 August 2006. The application was made at the resumption of the hearing (for final submissions on 15 August 2006), but I refused the application that day (t/s 2203 - 2211) because of the late stage at which the amendment was sought and the need, if it were permitted, which would have arisen to re-open the case and to take more evidence to determine an issue which could have been raised long before. Having regard to the long time this action was pending before it came to trial, and during the unfortunate but inevitable adjournments of the trial, there was no want of opportunity for such an application to have been made in due time for it to have been addressed by further evidence, but that did not occur.

786 For these reasons I consider that the plaintiff's claim in the first action, No CIV 2231 of 1999, should be dismissed but in the second action, No CIV 2490 of 2000, there should be judgment against the defendant Lynette Crimmins for damages for injurious falsehood in the amount of $272,676.