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[2022] FCAFC 132
Federal Court of Australia (Full Court)
2022-08-08
Goodman JJ
Original judgment source is linked above.
THE COURT: 1 It is uncontroversial that at Ibadan in Nigeria, on the evening of 28 November 2017 (West African time, as are all other times and dates mentioned below unless otherwise indicated), the appellant, Mr Alistair Peter Scholes and his fiancée, Ms Tayo Yusuf (Tayo), boarded the overnight bus to Abuja. The bus departed about two hours behind schedule, at around 11:30pm. Mr Scholes and Tayo did not reach Abuja. In the course of the journey the bus was stopped. Mr Scholes and Tayo were kidnapped by armed men. They were held in the bush by their captors for eight days. After a ransom was paid, they were released on 6 December 2017. 2 In proceedings instituted in the Court's original jurisdiction, Mr Scholes alleged that, from 7 to 10 December 2017, he was falsely imprisoned (at a Sheraton Hotel) and before by servants or agents of the respondent Commonwealth after he rejected an offer of consular assistance made by an officer of the Australian Department of Foreign Affairs and Trade (DFAT). More particularly, he alleged that, on the evening of 7 December 2017, he had been taken against his will from the village where he was staying with Tayo by a private security contractor, Pilgrims Africa Limited (Pilgrims), engaged by the Commonwealth to collect him and return him to Lagos, Nigeria's former capital. Mr Scholes alleged that the security contractor personnel were accompanied by heavily armed men. Mr Scholes claimed that he had agreed to the demand of the security contractors and their accomplices that he go with them only because he had no means to resist. He claimed that they had refused to allow him to take Tayo with him. He also claimed that he had been escorted by the contractor personnel and the accomplices to Lagos (with an overnight stop on the way). After arriving in Lagos, he claimed that he had, effectively, remained in the custody of officers of DFAT and been given no choice but to return to Australia against his will. Mr Scholes gave evidence to that effect at the trial. 3 It is uncontroversial that Mr Scholes left Nigeria by air on 10 December 2017. 4 At trial, the Commonwealth did not dispute that, via DFAT officers at the High Commission in Nigeria, it had engaged Pilgrims. The Commonwealth's position was that it had engaged this contractor to rescue Mr Scholes from the danger in which it had understood him to be, that Mr Scholes had consented to this course of action, Mr Scholes had been picked up by them voluntarily, and that the contractor's personnel and accompanying police had, without demur by him, conveyed him to Lagos, where arrangements were made for him to be accommodated temporarily at the Sheraton Hotel and where he was given consular assistance, including personally by Australia's then High Commissioner to Nigeria. The Commonwealth maintained that, throughout that period of dealings between Mr Scholes and officers of DFAT in November/December 2017, its officers encouraged him to return to the safety of Australia, as he ultimately did. 5 After a trial of four days' duration in which Mr Scholes gave evidence in support of his claim and officers of DFAT and of Pilgrims (its director, Mr Daniel Lemmer and a supervisor responsible for the meeting and conveying of Mr Scholes to Lagos, Mr Mustapha Oshoke Aliyu gave evidence for the Commonwealth and in which much contemporaneous documentary evidence was tendered, the learned primary judge dismissed Mr Scholes' claim. In so doing, his Honour gave (at [289] of his reasons) the following answers to particular issues which had been identified by the parties as falling for determination at trial: Issue 1 At any time between the evening on 7 December 2017, when the Applicant was collected by the Respondent's agents from Ilero, and the morning of 8 December 2017, when the Respondent's agents delivered the Applicant to the Sheraton Hotel in Lagos, was the Applicant's [sic] restrained against his will by the Respondent's agents? Answer: No Issue 2 If yes to Issue (1), was the restraint of the Applicant caused by a direct and intentional act of the Respondent's agents? Answer: Unnecessary to answer Issue 3 At any time between the morning of 8 December 2017, when the Applicant arrived at the Sheraton Hotel in Lagos, and when Mr Scholes boarded his flight to Australia at the Lagos international airport on 10 December 2017, was the Applicant restrained against his will by the Respondent's agents? Answer: No Issue 4 If yes to Issue (3), was the restraint of the Applicant caused by a direct and intentional act of the Respondent's agents? Answer: Unnecessary to answer Issue 5 If yes to any of the above, did the relevant conduct of the Respondent's agents, in the circumstances, constitute the tort of false imprisonment with regard to the Applicant? Answer: Unnecessary to answer Issue 6 If yes to Issue (5), what is the measure of the damages or compensation for that tort to which the Applicant has proven an entitlement? Answer: Does not arise. 6 These answers and the resultant order of dismissal, as the reasons for judgment of the learned primary judge reveal, were based on a thorough assessment of the evidence and very particular adverse findings about the credibility of Mr Scholes' evidence in comparison with that of witnesses called by the Commonwealth, and Mr Aliyu in particular, and contemporaneous documentary evidence of statements made in high level, diplomatic cables sent within DFAT from Nigeria to Canberra. These were authored or approved by Ms Cleo Wilson, then Deputy Head of Mission at the High Commission in Nigeria. Ms Wilson was one of the DFAT officers who gave evidence. The primary judge preferred Ms Wilson's account of events where her account differed from that of Mr Scholes'. 7 Another DFAT officer who gave evidence was the then Australian High Commissioner to Nigeria, Mr Paul Lehmann. Mr Scholes' allegations and his related evidence were also inconsistent with the evidence of Mr Lehmann. Mr Lehmann related that he had been briefed about the operation to retrieve Mr Scholes and, being in Lagos on 8 December 2017, he had taken the opportunity to meet with Mr Scholes shortly after his arrival with the Pilgrims team at the Sheraton Hotel. He did this to check on his welfare. Mr Lehmann stated that he met Mr Scholes in his room at the hotel. He recalled that, although the meeting was short, Mr Scholes had told him both that he was grateful for everything the Australian High Commission had done for him and about how relieved he was to be brought to safety. He also related that, for security reasons, he had counselled Mr Scholes not to leave the hotel, pending his departure for Australia, but had not forbidden him from so doing. He further related that he had later met briefly with Mr Scholes in the hotel lobby again to inquire about his welfare. 8 As the learned primary judge recorded in his reasons (at [25]), and the transcript of evidence confirms, Mr Scholes "acknowledged in cross-examination that there was nothing to justify any suggestion that he had been subject to a restraint, physical or economic, as would have stood in the way of him leaving the hotel where he was staying after that time had he wanted to return to Ilero (or to have remained in Lagos having invited his fiancée to join him there)". At trial, Mr Scholes conceded that his claim for false imprisonment was, accordingly, not maintainable beyond the point of his arrival at the Sheraton. 9 In his credibility assessment, the learned primary judge found (at [285]) that nothing which Mr Lehmann had said to Mr Scholes supported a finding that Mr Scholes had been falsely imprisoned at Lagos before his departure for Australia. Implicit in this finding was an acceptance of Mr Lehmann's evidence. Earlier (at [274]), the primary judge observed: It is conspicuous that Mr Scholes made no complaint of the kind he now advances to any Australian official until after he had returned to Australia. He made no claims of the kind he now advances whilst in Nigeria. 10 Acceptance of Mr Lehmann's evidence of his dealings with Mr Scholes necessarily carries with it acceptance of an account which did not include any complaint by Mr Scholes about his just concluded experience with Pilgrims. It is, to say the least, incongruous that, if the circumstances of his conveyance to Lagos were as he had claimed, Mr Scholes did not complain to Australia's then most senior, resident diplomat in Nigeria when he had the opportunity. 11 Mr Scholes acted on his own behalf on the hearing of the appeal, as he had at trial. With all due respect to Mr Scholes, his grounds of appeal bear all of the hallmarks of a person who is not a legal practitioner. Those grounds read (without alteration): 1. In the public interest and in the public good, 2. Procedural fairness; Butterworths Australian Legal Dictionary 2009 P.928; Principles developed at common law to ensure fairness of the decision making procedure of courts and administrators. The term is used interchangeably with 'natural justice' Kioa v West (1985) 159 CLR 500; 62 ARL 321. The three rules of procedural fairness are the hearing rule, the bias rule, and the no-evidence rule. A legitimate expectation may also be protected by requiring procedural fairness in a decision relating to the expectation. The common law principles are reflected in (CTH) Administrative Decisions Judicial Review Act 1977 ss 5 (1) (a), 6 (1) (a). Denial of procedural fairness in the making of a decision is a ground for judicial review of the decision. 3. (CTH) Administrative Decisions Judicial Review Act 1977; ss 5 (1) (a); 5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (g) that the decision was induced or affected by fraud; (j) that the decision was otherwise contrary to law. 4. 6 Applications for review of conduct related to making of decisions (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the conduct on any one or more of the following grounds: (a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct; (g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct; 5. (j) that the making of the proposed decision would be otherwise contrary to law. 6. The respondent withholding evidence beneficial to the appellant in the original trial exposing the respondent to allegations of official corruption by the fabrication of evidence, perjury by lying on oath and/or conspiracy to cover up official corruption by the respondent and/or Whole of Government (WoG) 7. 17 December 2021 judgement allows a gross miscarriage of justice to occur, 8. Miscarriage of justice; Butterworths Australian Legal Dictionary 2009 P.752; Where a misdirection by the trial judge on evidence forms a foundation of drawing the ultimate inference of guilt there·is a miscarriage of Justice: Prasad v R·1990 4119 ALR 399. By the trial judge failure to order; (a) Non-standard and more extensive discovery against the respondents and/or WoG, (b) Issuing numerous subpoenas sought against the respondents and/or WoG, (c) Failure to allow evidence exposing allegations of official corruption and cover-up of the criminal and/or tortious acts actions and/or omissions commissioned by the respondents and/or WoG. 12 To state the obvious, these are not adequate grounds of appeal. Yet, consistently with its obligations as a model litigant, the Commonwealth responded to the appeal by endeavouring to identify from the notice of appeal and otherwise what, in substance, were the issues that Mr Scholes sought to agitate on the appeal. The issues so identified were: (a) The trial judge erred in finding at [209] of the Reasons that Mr Scholes' evidence was not to be preferred over that of Ms Wilson. In particular, he seeks to challenge the trial judge's finding at [212] of the Reasons that he did tell Ms Wilson that he had accepted her offer of consular assistance for his transport from Ilero to Lagos. (b) The [Commonwealth] withheld evidence beneficial to the applicant in the trial, consisting of a document described as "a record of documenting the manual search [undertaken by the Australian Federal Police], and the substance of messages contained in Mr Scholes's phone for the dates above" (Phone Search Record). Mr Scholes submits that the Phone Search Record would show that he "never initiated and/or received any contact with/from the [Commonwealth]'s Wilson on 7 December 2017 via his mobile phone as alleged by the [Commonwealth]". (c) A claim, not raised in the trial, that [DFAT] exceeded its charter in assisting Mr Scholes with the return of his possessions. (d) Claims relating to various other factual matters which were not in dispute during the trial, such as whether Mr Taylor had paid a fine (in relation to Mr Scholes overstaying his visa) when accompanying Mr Scholes to the airport. 13 No less commendably, Mr Scholes accepted in the course of his oral submissions that the issues as so identified were those he sought to agitate on the appeal as to why the order of dismissal was made in error. Of these issues, the first is undoubtedly the principal one for determination. 14 Giving full measure to model litigant obligations, there will be cases where the grounds of appeal pleaded are so inadequate and the conduct of a case by a litigant in person such that it is not reasonably possible to discern any meaningful ground of appealable error. Discharge of a model litigant obligation does not require the impossible. Yet where it is tolerably clear from a course of dealings with a litigant in person that, however poorly expressed the notice of appeal, it reveals a grievance known to law about an order made in the original jurisdiction, the interests of justice are better served by attempting to identify and address that grievance, rather than challenging the adequacy of the notice of appeal. That is because, even if unsuccessful in an appeal, the litigant in person will (or should, reasonably), at least, be left knowing that the substance of their grievance(s) was determined on the merits. We are well satisfied that this appeal is justly determined by addressing the issues as identified by the Commonwealth and accepted by Mr Scholes. 15 Before doing so, it is necessary to refer to the role of an intermediate appellate court conducting an appeal by way of rehearing in circumstances such as these where a trial judge has made credibility findings. In Fox v Percy (2003) 214 CLR 118 at [23] Gleeson CJ, Gummow and Kirby JJ stated: The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Footnotes omitted.) 16 More recently in Lee v Lee (2019) 266 CLR 129 at [55] Bell, Gageler, Nettle and Edelman JJ) observed: A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". (Emphasis added and footnotes omitted.) 17 As it happens, the evidentiary foundation by reference to which the appeal falls for determination is greater than it was at trial. That is because, on Mr Scholes' application and following the production of material on a subpoena issued at his request, the Court agreed to accept further evidence on the hearing of the appeal. This further evidence largely comprised communications in November/December 2017 extracted by the Australian Federal Police from Mr Scholes' mobile telephone. 18 The admission of this further evidence was not in the end opposed by the Commonwealth. From the extracted data, a summary was prepared which was also admitted into evidence with Mr Scholes' consent, as was a related explanation of the extracted data and the summary given by Mr Ian Laidlaw of Maddocks, the Commonwealth's solicitors in the appeal. Particularly important in the explanation is the time zone difference between West African Time (WAT), in which Nigeria operates, and Australian Eastern Standard Time (AEST). WAT is nine hours behind AEST. The times in the summary were adjusted to show various communications in WAT. 19 Upon examination of this evidence and after hearing from the parties, it was obvious that it was in the interests of justice that this further evidence be admitted. When considered in conjunction with the evidence led at trial, we have no doubt that the result must be that the first issue must be resolved against Mr Scholes. 20 Explaining why that is so first requires an explanation as to how Mr Scholes came to be in Nigeria. 21 The story begins in Melbourne in 2013. At that time Mr Scholes became acquainted with Tayo's sister, Ms Tola Yusuf (Tola) while they were both undertaking a two week practical placement during a nursing course which each was then undertaking at Victoria University. They formed then, as the primary judge found, a platonic friendship. Mr Scholes' contact with Tola ceased when she returned to Nigeria after the placement was over. Their contact resumed via Facebook in 2015. Tola told Mr Scholes that she was coming to Australia to live. She also asked him for money for various reasons, including for her father, who Tola told him had become sick during the Ebola epidemic. In all, Mr Scholes sent Tola about $20,000, including $200 which he understood was to pay for her father's funeral in Nigeria. He also offered Tola accommodation at his home if she came to Australia. 22 In mid-2016 Tola and her daughter came to Australia. They took up Mr Scholes' accommodation offer. Mr Scholes continued to support Tola financially. As the primary judge found, he put around $10,000 into a small business importing clothes from Nigeria that she had tried to establish. Mr Scholes lived together for around 10 months, in Mr Scholes' words, and as the primary judge accepted, as a "non-sexual family unit". 23 In early 2017, Tola indicated she wished to return to Nigeria with her daughter. She persuaded Mr Scholes to visit Nigeria at the same time. They travelled there together in mid-September 2017. Mr Scholes was booked to return to Australia in late January 2018. 24 After clearing customs and immigration at Lagos on arrival, they were met by Tola's mother Mrs Titilayo Yusuf (Mrs Yusuf); Mr Alaba; Tola's friend, 'Sami the Soldier'; and a driver. Together, they travelled to Ilero, the Yusuf family's home village. It was there that Mr Scholes first met Tayo. 25 Mr Scholes' subsequent experiences with the Yusuf family are set out in the primary judge's reasons. It is not necessary to detail them. Suffice to say that over the course of the next two months revelations were made to Mr Scholes that indicated that Tola had not been honest with him about her circumstances and those of her father but, at the same time, a romantic bond developed between Mr Scholes and Toya. What placed them on the bus to Abuja on the evening of 28 November 2017 was Mr Scholes' understanding that village elders in Ilero had made arrangements with their relations in Abuja "to go and retrieve his passport and possessions from Tola". These had come into Tola's possession after Mr Scholes' arrival in Nigeria. He was anxious to retrieve them. 26 Mr Scholes did not suggest that any DFAT officer had any involvement in dealings with his and Toya's kidnappers or with the payment of the ransom they demanded. 27 It is apparent from the contemporaneous diplomatic cables which emanated from the Australian High Commission that negotiations with the kidnappers concerning the release of Mr Scholes and Toya and related payment of the ransom demanded were undertaken on their behalf by Mr Kareem Muhamed Alaba (Kareem), the step-father of Tola and Toya. It is likewise apparent from these cables, which were, inferentially, asource of reference for Ms Wilson, that officers of the High Commission spoke both with Tola and officers of the Nigerian Department of State Security (DSS) over the period from 1 December 2017 to 6 December 2017 concerning the kidnapping, after it had been reported to a DFAT officer in the Consular Emergency Centre in Canberra. The cables reveal that, by then, Ms Wilson, whose role as Deputy Head of Mission included responsibility for security, and Mr Lehmann had a telephone meeting with Inter-Departmental Emergency Taskforce (comprising members of the Department of Defence, the Australian Federal Police and Australian Intelligence Agencies) to discuss the kidnapping and decide on next steps. Ms Wilson also spoke to a senior officer of DSS responsible for cases concerning the kidnapping of foreigners to discuss Mr Scholes' case. 28 A diplomatic cable, sent by Ms Wilson on 6 December 2017 to DFAT in Canberra ("Update 11"), reveals that, by that date, the High Commission staff in Nigeria were developing contingency plans against various scenarios in relation to an anticipated release by the kidnappers of Mr Scholes and Toya to Kareem. In the cable Ms Wilson stated (at para 3): "Post's security provider Pilgrims is on stand-by, if the above scenarios fail to play out and/or Mr Scholes needs to be collected from a yet to be nominated location in South West Nigeria". Significantly, having regard to the challenge by Mr Scholes to the conclusion reached by the primary judge, she added (para 8): Mr Scholes plans on his release are of course unknown. Post will strongly encourage Mr Scholes to leave as soon as practicable after his release, medical assessment/treatment and debrief with DSS, but it will ultimately be his decision. (Emphasis added.) "Post" is a reference to the Australian High Commission, Nigeria. 29 The sentence emphasised above is inconsistent with the existence of any plan by, or intention of, DFAT officers resident in Nigeria for Mr Scholes to be held on his release against his will until his removal from Nigeria. 30 This cable also reveals that detailed contingency planning was being undertaken within the High Commission in Nigeria in relation to an anticipated release of Mr Scholes and Toya. Mr Brian Taylor was the person undertaking the planning. Mr Taylor also gave evidence at the trial. In 2017 he held the role of Senior Administrative Officer (SAO) at the High Commission in Nigeria but by the time of trial he had retired. It was Mr Taylor who dealt directly with Pilgrims in relation to the planning for Mr Scholes' anticipated release in the event that he required assistance. In this regard, Mr Taylor dealt with Mr Lemmer. 31 A survey of the diplomatic cables in evidence also reveals that both DFAT staff and officers of the Australian Federal Police were at pains to advise Mr Scholes' family in Australia of developments, his brother, Ian, in particular. These communications similarly reveal that a combination of the following factors told against the deployment of a member of the High Commission staff on a retrieval mission: the assessed personal security risk on any journey to and from where Mr Scholes was thought to be held and likely released; the need for Australian citizen High Commission personnel to maintain a presence at both the High Commission's offices in the capital, Abuja, as well as in Lagos; and the small number of Australian citizen personnel staffing the High Commission. At the time, including the High Commissioner, the Deputy High Commissioner and the SAO, the total number of DFAT's Australian citizen staff at the High Commission was five. In addition, there were a number of locally engaged support staff. The assessed personal security risk was high, especially the risk of kidnapping particularly if travelling at night. 32 In a "Release Summary" email of 7 December 2017 to an officer of DFAT in Canberra, Ms Glenda Price (Release Summary), Ms Wilson reported: Post (DHOM) told CCD she spoke to Kareem at 0945 AEST 7 December (2145 local time 6 December). Language difficulties impeded communication and attempts to confirm Scholes current location were unsuccessful. At DHOMs request, Kareem passed the phone to Alistair Scholes, who told DHOM that he was "OK". He planned to return to Mr Kareem's village the next day. DHOM strongly discouraged him [from] this course of action and noted the need for him to ensure his ongoing security by returning safely to Lagos or Abuja. Scholes said he agreed and indicated he would go to Lagos. DHOM suggested that they (Post/Scholes) discuss ways to ensure his safe return to either city in the morning at 0830, once he had had the opportunity to rest. He agreed and indicated that he could be contacted on his own Nigerian mobile number. DHOM confirmed that the kidnappers had returned his phone. He responded in the affirmation, they (the kidnappers) had provided them with a number of phones. They had treated them well. He said he aware that he needed to provide information to DSS and AFP and asked DHOM if she knew where this would occur. DHOM repeated her concerns about ensuring his own and ongoing security. He noted that the driver in the car that had collected him and Toya Yusuf had been from DSS. On his general health, DHOM noted that Post could provide consular assistance with getting access to medical facilities in Abuja and Lagos. Scholes confirmed he was 'ok'. DHOM asked if he still had his blood pressure medication with him. Scholes said it had been at the 'front of the bus' which had been 'blown up' and the driver killed. He made no reference to other victims. DHOM again noted that ensuring his own security going forward was essential - going to Mr Kareem's village was not advisable. Scholes agreed to talk in the morning. "DHOM" refers to Ms Wilson, Deputy Head of Mission. 33 As he was entitled to do, the primary judge preferred this account, given the near contemporaneous report of contact between Mr Scholes and Ms Wilson in the immediate aftermath of his release from captivity. We see no reason to do otherwise. There is absolutely nothing in the evidence which would suggest that, at the time Ms Wilson sent the Release Summary, Mr Scholes considered that she was, or would become, a party to an endeavour to hold him against his will either then or at any stage thereafter. On the face of the report, and as Ms Wilson stated in evidence, Mr Scholes consented to his retrieval. 34 At about 8.28 am on the morning of 7 December 2017, Mr Scholes sent Ms Wilson a text in which he stated, "I am safe in the hands of Nigerian ss been moved to a safer location presently shall call you soon". "SS" is a reference to DSS. At that stage, it was not clear to Ms Wilson or others in DFAT whether or not DSS would assume responsibility for Mr Scholes' further safe transport. 35 Additional developments concerning Mr Scholes were recorded by Ms Wilson in an email to Ms Price and others within DFAT sent later that day. Once again, there is absolutely nothing to suggest that this email is other than an authentic, near contemporaneous account of events. Indeed, that quality virtually leaps off the page in light of the language employed by Ms Wilson. The contents of the email should be set out in full: I apologise for the email and quickly drafted points, but things are moving quickly. Alistair rang me at 12:53. Despite our warnings, he advised that he had just arrived in the stepfather's village in Ilero (Ogo State ‐ closer to Lagos than Abuja). I raised our serious concerns about this move. He said the house was protected by security. He made numerous allegations again [sic - "against'] Tola (the sister in Abuja). I again noted our concerns about his location, his to get to a safe spot / ensure his own security ‐ before anyone else. I asked if he would agree to pay for our security to collect him. He agreed to the move/pay, but he said he didn't have any money on him. I said I would get back to him within the hour to talk to him about the move. Brian is talking to Pilgrims. We are working out the movement times given that it is now 13:34 in the afternoon and it will not be long until night fall (approx. 17:45) He provided verbal permission for us to share information with his family (i.e. every member). Noting his concerns, I noted that we arrange the return of his passport and credit card etc. I strongly suggested that on arrival in Lagos he needed to get back to Australia and his mother. Post was prepared to assist with this process. As advised yesterday, HOM is on his way to Lagos. (Emphasis in original.) In this email "Brian" is a reference to Mr Taylor and "HOM" is a reference to the Head of Mission, Mr Lehmann. 36 This evidence places Mr Scholes in Ilero, agreeable to being moved from there to a place of safety in accordance with security arrangements made by the High Commission. 37 An excerpt from the further evidence, as obtained from Mr Scholes' mobile telephone and admitted into evidence on the appeal, confirms as much: Message to Mr Scholes from Ms 07.12.17 22:35:22 7:35:22pm Hi Alistair they are probably two hours away. Not long now. Cleo Wilson Message from Mr Scholes to 07.12.17 22:36:45 7:36:45pm Okay all packed ready to travel Ms Wilson Message to Mr Scholes from Ms Wilson 07.12.17 22:43:16 7:43:16pm Great!
The time in the fourth column is WAT. 38 Furthermore, in none of the text messages sent to Tayo or his brother, Ian, after he was collected by Pilgrims does Mr Scholes complain that he was held against his will. 39 Considered in the context of the whole of the evidence, this further evidence shows that the preference of the primary judge for the position revealed by the contemporaneous DFAT communications and Ms Wilson's evidence and the evidence of Mr Aliyu as to events on and from the collection of Mr Scholes in Ilero and his transport to Lagos was not just reasonably open but unquestionably correct. The text exchange in the further evidence makes it plain that Mr Scholes was both aware of, and consensually anticipating, his collection from Ilero by Pilgrims on the evening of 7 December 2017. In fairness to Mr Scholes, we gained the distinct impression on the hearing of the appeal that he had not taken into account, in his review of the material produced on subpoena and admitted in evidence on the appeal, the time zone difference between WAT and AEST. 40 The circumstances of that collection and subsequent transportation to the Sheraton Hotel in Lagos were related by Mr Aliyu in his affidavit and oral evidence. It is not necessary to set out his account in detail. It is sufficient to note the following matters. Mr Lemmer assigned that task to him. For that purpose, he made arrangements for a three vehicle convoy (two escort vehicles, front and rear, and a passenger transport vehicle in the middle) with armed security to the Pilgrims team in these vehicles being provided by an armed, four person detachment of the Nigerian Mobile Police. As this collection team approached Ilero, Mr Aliyu made contact with Kareem, met him in Ilero and then went with him to the house where Mr Scholes was staying. There, Mr Aliyu met not only Mr Scholes but also Tayo, her mother and some of Tayo's siblings. In his affidavit at paras 15-17, Mr Aliyu deposed: 15. Mr Scholes asked me if his companion, Ms Yusuf, could come with him to Lagos. As my instructions were only to collect Mr Scholes, I told him that I did not think she would be allowed to come with him, but that I would call my superiors to confirm. I then walked a short distance from the group and telephoned Mr Lemmer. I repeated Mr Scholes' request and asked whether Ms Yusuf could be transported with Mr Scholes. Mr Lemmer confirmed that the rescue mission was only for Mr Scholes and Pilgrims had not been instructed to assist Ms Yusuf. 16. I walked back to the group and told Mr Scholes that Ms Yusuf was unable to come with us. Mr Scholes accepted this without complaint. He said goodbye to Ms Yusuf and the others in the group. He then walked over to the convoy and got into the middle vehicle. He did not protest in any way. I sat in the front passenger seat. Hakeem Adegbite (the driver) was the only other person in the vehicle. 17. Once we got into the middle vehicle, I could see that Mr Scholes looked weak and fatigued. He said that he wasn't feeling well. After a short time, we stopped the convoy because Mr Scholes was feeling dizzy. ·Mr Scholes got out of the vehicle and vomited on the side of the road. 41 Mr Aliyu related that, because of Mr Scholes' condition, low fuel and the lateness of the hour, he decided to make an overnight stop on the way to Lagos, accommodating Mr Scholes in a hotel on the way with he and his team and the police providing security for him there. Early the following morning, they continued on their way to Lagos, seeing Mr Scholes into accommodation at the Sheraton Hotel near the airport. It was at that hotel that Mr Scholes was met by Mr Lehmann in the circumstances related at the outset of these reasons for judgement. 42 Mr Aliyu's account of a consensual departure from Ilero is entirely consistent with Mr Scholes' anticipatory position revealed in the text exchange in the further evidence. 43 In light of the further evidence admitted on the appeal, this is not a case to be decided just by reference to what was said in the passages quoted from Fox v Percy and Lee v Lee about the status of credibility findings made by a trial judge who has seen and heard the witnesses. As it happens, on our review of the whole of the evidence, which includes the further evidence, we are well satisfied that Mr Scholes' claims are not proven. His account of events is not just inconsistent with contemporary or near contemporary records of events in DFAT communications authored by relevant actors, Ms Wilson in particular, but also with his own contemporaneous text communications. In contrast, Ms Wilson's and Mr Aliyu's accounts of events are consistent with Mr Scholes' contemporaneous texts and also with the DFAT communications. 44 Like the learned primary judge (at [234]), in reaching these conclusions we have drawn no adverse inference against Mr Scholes based on his failure to call Kareem, Mrs Yusuf and Tayo. As his Honour observed, "[i]t is not implausible that one reason for their not wishing to give evidence might be that they did not want their giving evidence to be the cause of exacerbating the conflict that appears to have arisen within the Yusuf family after Mr Scholes had identified Tola's role in bleeding him for money". 45 Mr Scholes therefore fails on the first and principal issue in the appeal. 46 Of the remaining issues, issue (b), which concerns the AFP summary, was rendered academic by our admission of the further evidence. We should record that at the hearing of the appeal Mr Scholes sought an adjournment to seek yet further evidence which he claimed would support his case. It was by no means apparent from the existing evidence at trial and the further evidence quite what this might be, as opposed to a solicitation to engage in a fishing exercise. Accordingly, we refused the adjournment request. 47 In its initial written submissions, the Commonwealth contended that records held by the Australian Federal Police Commissioner (Commissioner) were not within the possession, custody or control of the Commonwealth for the purposes of any discovery obligation. That submission must be rejected. The Commissioner is an officer of the Commonwealth. This aside, at a pre-trial interlocutory stage, Mr Scholes made an unsuccessful application for leave to issue a subpoena directed to the Commissioner. At the time, the primary judge extended to him an opportunity to seek to refile this subpoena in a different form such as might require the production of the search record of his mobile telephone. Mr Scholes did not do this either before or during the trial. 48 Issues (c) and (d) are each truly peripheral. They are irrelevant to Mr Scholes' false imprisonment claim. 49 As to issue (c), it was not any officer of DFAT who held Mr Scholes' passport and credit card but Tola and her family. The evidence discloses that DFAT officers at the High Commission did facilitate the return of these to Mr Scholes and that they did so in accordance with his wishes, as expressed to Ms Wilson. Whether or not this exceeded what DFAT publicised it would regard as a consular responsibility is not to the point. It was not unlawful under Australian law for staff at the High Commission to assist Mr Scholes in this way. Indeed, looking at the evidence as a whole, it would do less than justice to those at the High Commission in in Nigeria at the time, and those with whom they and members of Mr Scholes' family dealt with in Australia, just to leave this case on the basis that Mr Scholes' claim of false imprisonment is not proved and no error is shown in the order of dismissal by the primary judge. The effort made to safely retrieve Mr Scholes from the dangerous situation in which he found himself in Nigeria appears to be a model of humane, sensitive and solicitous consular assistance to an Australian citizen abroad. 50 As to issue (d), the evidence discloses that Mr Taylor accompanied Mr Scholes to the airport and facilitated his departure from Nigeria. He did this after Mr Scholes had rearranged his departure flight time from late January 2018 to 10 December 2017 and paid the requisite supplement to the airline for this purpose, using his credit card. Mr Taylor obviously rendered considerate consular support to Mr Scholes. No useful purpose is served by delving further into issue (d). 51 In the light of the evidence at the trial and the further evidence admitted on the appeal, we are satisfied that the primary judge did not err as alleged. 52 Accordingly, the appeal must be dismissed, with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Logan, Katzmann and Goodman.
Scholes
Commonwealth of Australia