Skrijel v Mengler [2003] VSC 270

27. The opening started with reference to what Mr Skrijel said was the drugs drop that he observed in 1978. The evidence was later to show that he had given different versions of that event to different audiences at different times. But the version which he gave me was the one which is mentioned above.

30. Mr Skrijel said that soon after he reported the matter several of the police in his district whom he had known on a social basis for the previous two to three years refused to have anything further to do with him, that his boat moorings were cut continuously and his boat was sabotaged by the cutting of the steering cables, that his crayfish were stolen, that rocks and bottles were thrown onto the roof of his house, that he was shot at from a passing car, that his wife and children were assaulted, that his daughter was subjected to an attempted rape, that he and other members of his family were assaulted at a football match at the Dartmoor football ground, that his crayfish pots were cut loose and lost or stolen, that his boat was burned to the waterline and later that his house was set alight. He claimed that police refused to do anything about any of those things, even the boat fire, and even though a coronial inquiry determined that the boat had been set alight by persons unknown.

33. Nothing daunted Mr Skrijel said that after his boat was destroyed by fire he returned to Melbourne to Elwood where he built another boat and tried to see different police and both federal and state politicians to assist him against the harassment to which he and his family were being subjected. But he said that even in Melbourne there was no end to the harassment. His cars were damaged in their yard and his family were beaten inside their own home.

36. Despite those difficulties, Mr Skrijel said, he completed the new boat and he returned to Southend and he continued to fish. But he said he also continued to be subjected to harassment and abuse. He instanced occasions on which persons unknown had tried to cause him to be killed by interfering with navigation lights as he was returning through the channel in his boat from a trip near to Sale (even though that is hundreds of miles from Southend) and he spoke of what he described as primary and secondary boycotts of his business resulting in the refusal by local companies to purchase his catch or to supply him with diesel fuel or bait. He said that he sought legal advice from a solicitor in Melbourne and that the solicitor retained a private investigator who obtained taped records of interview of persons that proved the existence of the boycotts. As I understood what Mr Skrijel said, the tapes also proved the existence of the drug ring and police involvement in it. But the tapes were later taken from the private investigator by NCA investigator Sergeant Iddles, and they were never returned.

39. Mr Skrijel told me that in an attempt to overcome the difficulties which he faced during the second year of fishing operations he endeavoured to work between 20 and 22 hours per day, starting fishing at midnight, coming back to shore at 6.00 to 7.00 am and then driving 180 miles to Portland in order to sell his crayfish. But he said that after three months of that sort of activity his body could not take it any longer and that he suffered a nervous breakdown which put him into hospital for several days. Hence he leased his boat to another operator for the remainder of that year.

42. In the next year, Mr Skrijel said, he went back again to fishing at Southend and again he met with the same sorts of primary and secondary boycotts as well as theft and interference with his crayfish pots and physical attacks upon and intimidation of his family. But he said that the police still refused to help him until political pressure was brought to bear.

45. Finally, the police were motivated to do something about the theft of his crayfish pots and they charged a person that they alleged to be responsible. But Mr Skrijel said that despite those developments, by 1984 the situation had become so intolerable for him and his family he was forced to abandon the business. Then, to make matters worse, he said, in May 1985 his nearly completed house at Southend was set alight shortly before he was to give evidence against the person charged with the theft of his crayfish pots. He moved back to Digby to find work and his family returned to Melbourne.

48. Mr Skrijel said that while he was at Digby he was told by his ex brother in law, who was a policeman, that someone would be coming to shoot him and that one night soon after that, as he tended one of the trees in his garden, a car did pass by from which the occupants yelled abuse and then later returned and fired on him with a shot gun. He said that the man who fired on him was the son of an inspector of police and that he had several other relatives who were members of the police force. He also alleged that nothing was ever done about the attack because of the identity of the attacker and because of Mr Skrijel's stance against drugs and the police that were involved

51. Mr Skrijel said that on another occasion shortly before coming to Melbourne his twelve year old daughter was the victim of an attempted rape and that although the culprit was apprehended and charged, he was fined only $100 for being illegally on premises and $100 for discharging the firearm he had used to threaten Mr Skrijel's daughter, and that he did not even have his shooter's licence cancelled. Mr Skrijel considered that the leniency of the penalty imposed was the result of police influence to silence his protests against drug trafficking and corruption.

54. Mr Skrijel told me that he wrote in desperation to what he described as all the politicians, including the then Premier of South Australia, Mr Dunstan, various members of the Victorian Parliament, the then Prime Minister, Mr Fraser, whose house Mr Skrijel said he had painted when he had worked as a painter, and later to Mr Hawke after he assumed office as Prime Minister, as well as to the Trade Practices Commission in South Australia. But, according to Mr Skrijel, he got no assistance from any of them and indeed, he said, the more that he complained "the harder they hit me". He claimed that he was told by a Trade Practices Commission officer that he had Mick Young and Nick Bolkus battling against him.

57. Mr Skrijel said therefore that he finally took his complaints to the Costigan Royal Commission, which he believed to have been set up by the Commonwealth Government to inquire into the illegal drug trade in this country, and on 26 March 1984 he was interviewed by Mr John Buxton, a solicitor working for the Commission who he said took an interest in what he had to say. But the Commission was by that stage in the process of winding down its activities and, consequently, Mr Skrijel's complaints became just one of forty two matters referred by the Commission to the NCA (which at that point was in process of setting up).

60. Mr Skrijel said that in November 1984 he set out to make sure that his complaints got the priority that he considered they deserved. To that end he distributed to all federal politicians in Australia a twelve page pamphlet entitled " Better to die a man than to live as a slave". It told Mr Skrijel's story in sensational terms and it seems to have had the effect that he desired. On 28 November 1984 the NCA resolved to proceed with the investigation of Mr Skrijel's allegations as "one of two major references which could be handled at any one time" by the NCA.

63. Mr Skrijel said that on that very day he and his wife were interviewed in Sydney by Sergeant John Milner and Sergeant Ian Rogers of the NCA, and immediately following the interview he had high hopes that appropriate action was finally to be taken against the illicit drug trade which for so long had caused him harm. But once more his hopes were to be dashed. According to him, the investigation conducted by Milner and Rogers was superficial and biased and, as he saw it, its object was to discredit his allegations against police rather than to ascertain the truth about his complaints. Indeed according to Mr Skrijel, Sergeant Rogers had drafted a report damning Mr Skrijel's allegations even before Mr Skrijel was dispatched to obtain statutory declarations to establish the truth of aspects of the story which Sergeant Rogers later castigated as lies. Mr Skrijel said that this proved that the investigation was a sham.

66. But Mr Skrijel said that he was not to be silenced. He proclaimed in vociferous terms that the investigation was a cover up for people in high places who were involved in the illegal importation of drugs and he wrote as much to many politicians and in pamphlets which he took to handing out in the streets of Melbourne. That resulted, he said, in a recommendation by Mr Buxton on 21 January 1985 that the NCA implement a covert investigation by a team of personnel with drug surveillance experience and that discussions about the manner in which to proceed with the investigation be held with Chief Superintendent Mengler when he arrived to take up his appointment as NCA chief investigator.

69. Mr Skrijel said that during the May school holidays in 1985 he went into the Weecurra State Forest with two companions, Sabit Jeka, who he said was a person that he had met at a wedding in Melbourne, and a relative whom he did not name, to shoot for kangaroos. He said that as they were returning to their vehicle they came to an intersection of two tracks at which they found two sheets of corrugated iron and a motorcyclist's helmet which they had not seen there when they had passed by before. He said that they picked up the iron and the helmet and were continuing on towards their vehicle when a local farmer, William Lane, came along in his vehicle and offered them a ride back to theirs. He said that a few weeks later he was visited at his Digby home by Assistant Commissioner Kel Glare and Inspector Peter Ryan of the Victoria Police Bureau of Internal Affairs (B11). They had come to talk to him about the prosecution of persons for the assault on him which he alleged to have occurred at the Dartmoor football ground some years before. According to Mr Skrijel, Mr Glare and Mr Ryan asked him what he had been doing in the forest and he said that he told them and showed them how he had used the two sheets of iron as cladding for his carport. Thereafter he heard no more about it. But he told me that he now thinks that the questions which he was asked show that Mr Mengler's plan to frame him over his involvement in the growing of marijuana had been hatched as early as May 1985.

72. Mr Skrijel said that the next thing which he heard of the NCA's activities was on 13 June 1985 when Sergeant Ronald William Iddles, who was also on secondment from the Victoria Police to the NCA, and Detective Collins came to interview him at his Digby home about his allegations. He said that Sergeant Iddles asked him questions and he answered every question. But he said that he has since learned that Sergeant Iddles was not investigating anything of the allegations. According to Mr Skrijel, Sergeant Iddles was instead "going around with... a cow bell on his neck... telling everybody that's what he was doing and he's supposedly investigating covert drug importation." Mr Skrijel perceived that Sergeant Iddles' object was to discredit him and that is why he was going about so openly proclaiming that he was inquiring into Mr Skrijel's allegations.

75. Mr Skrijel then referred me to a Minute from Sergeant Iddles to Mr Mengler dated 21 June 1985[2] in which Sergeant Iddles recorded among other things that:

"Since 1978 Mehmed Skrijel has been making complaints and allegations against members of the Victoria Police Force and the South Australian Police Force"... and that "During the course of (our) interview he told us that if he could not see Justice being done within three months he will take the law into his own hands. He further stated the first Policeman to enter his property would be shot."

The Minute concluded with a recommendation to Mr Mengler that copies of the Minute should be sent to Vicpol and Southpol Criminal Records Section[3] and that consideration should be given to having Mr Skrijel's shooters licence revoked. Mr Mengler did notify Vicpol and Southpol as recommended but, for reasons which do not appear, Mr Skrijel's shooter's licence was not revoked.

80. Mr Skrijel told me that he never made any threats and that the Minute and later action of Mr Mengler in advising Vicpol and Southpol of its contents was "deliberate action to blacken (Mr Skrijel's) name to every single police force in the country". As Mr Skrijel saw things, the Minute and Mr Mengler's communications to the two police forces were "malicious lies being spread by Mr Mengler just two weeks after Operation Southend began" and the fact that the Minute of 21 June 1985 was not signed by Sergeant Iddles in his hand "suggests that Mr Mengler might have been the actual author of the unsigned minute".

83. Early in his opening Mr Skrijel said that because he found Sergeant Iddles to be unsatisfactory he tried to see Mr Mengler, but that Mr Mengler was just as bad. In his own words:

"I found out that Mr Iddles was not doing his job. I tried to see Mr Mengler, they were just as bad, both actually."

Then, he said, he came to Melbourne and spoke to Mr Kel Glare and Mr Glare said that he would help. According to that version of events, when Mr Glare and Mr Ryan travelled to Digby in May 1985 and after interviewing several people Mr Glare said to Mr Skrijel:

"Well you're correct, what you were saying is the truth, those people will be charged."

89. But at another stage in the opening Mr Skrijel put the matter rather differently. In that version of events, Mr Skrijel did not complain to Mr Glare or Mr Ryan that he was dissatisfied with Mr Mengler, and Mr Glare and Mr Ryan did not say to Mr Skrijel that he was right to be dissatisfied. Mr Glare and Mr Ryan instead visited Mr Skrijel at his Digby home in June (not May) 1985 to talk only about the prosecution of persons for the assault upon Mr Skrijel at the Dartmoor football ground, and at the conclusion of their visit asked him the questions about what he had been doing in the forest when sighted there with two companions and sheets of iron. According to Mr Skrijel:

"The visits from Assistant Commissioner Glare and Inspector Ryan could suggest that I was a suspect for cultivation even before Sergeant Iddles was given his brief by Mengler."

93. Either way, however, Mr Skrijel was not for long happy with the way things went with the investigation. In his words:

"... dealing with Mr Mengler and his investigators over the next five months left no doubt that operation Southend was a sham" and thus "I fought back with the only weapon I know to be effective... a pamphlet that attempted to expose the corruption in the NCA"...(by)... "explaining to people what National Crime Authority stand for naming the investigators previous, naming the current investigators of Mr Mengler, Iddles and Collins".

97. Early in his opening Mr Skrijel said that he gave the first copy of the pamphlet to Mr Mengler personally, in August 1985 in Mr Mengler's office in Queen Street, Melbourne, and that Mr Mengler responded with the words:

"Mick, you're working for my head, I'm going to bloody well get yours before you get mine."

101. Later in the opening Mr Skrijel said that he delivered the pamphlet to Mr Mengler on 12 November 1985 (although it was apparent that he meant to say 12 September 1985) and that he knew the date because of information which he had obtained under FOI. In Mr Skrijel's words:

"I handed the first pamphlet to Mr Mengler personally on 12 November 1985. I know the date because the pamphlet was fax (sic) from Melbourne to Sydney and was later released to me under FOI provisions with a faxed time stamp on the pamphlet."

105. In this latter version of events there was no mention of Mr Mengler having threatened to get Mr Skrijel's head before Mr Skrijel got his, although Mr Skrijel did go on to say that over the following month (which is to say, until about the middle of October 1985) he distributed approximately 20,000 of the pamphlets from positions in front of the NCA offices in Queen Street and the County Court at the corner of William and Lonsdale Streets.

108. Mr Skrijel turned next to a report of 23 October 1985[4] which was submitted by Sergeant Iddles to Mr Mengler at the conclusion of Sergeant Iddles' investigation into Mr Skrijel's allegations of drug trafficking, harassment and corruption. It showed among other things that by 2 October 1985 Sergeant Iddles had interviewed almost 70 people as part of the investigation but, according to Mr Skrijel, the brief period of time in which such a large number of interviews had been conducted made it obvious that Sergeant Iddles had proceeded with a degree of haste and fanfare calculated to dissuade persons coming forward to corroborate Mr Skrijel's allegations.

111. Mr Skrijel came then to the final stage of his opening, of which much appeared to be based upon the transcript of evidence given during Mr Skrijel's trial in the County Court in 1987. According to that transcript, on 7 October 1985 Sergeant Iddles spoke by telephone to Mr Mengler, told him that he was going to see a local farmer, named William Lane, about a report which Lane had put into the local police of having sighted Mr Skrijel in the Weecurra State Forest in May 1985, and after a conversation with Lane, Sergeant Iddles and three other police officers had gone with Lane to the area in the forest where Lane had sighted Mr Skrijel with the two companions and sheets of iron. After walking some distance along a nearby creek, they found a cleared area and a plantation made up of a number of used industrial paint drums sunk into the ground and containing a total of 124 young marijuana plants, a sort of table created roughly out of timber and corrugated iron and seedlings and manure and the like. On locating the plantation Sergeant Iddles spoke by telephone to Mr Mengler and with his concurrence made arrangements to set up and maintain surveillance on the plantation. Mr Mengler obtained assistance from the Victoria Police Special Duties Squad and officers of that squad travelled from Melbourne down to the forest to help man the surveillance. On 8 October 1985 one of those officers, Sergeant Carmady obtained from a Melbourne Magistrate, Mr Musgrave, two warrants to search Mr Skrijel's Digby home,[5] one for paint tins of the type found at the plantation, and the other for cannabis, and ultimately after surveillance on the plantation had been maintained without result for about a week the warrants were executed on 15 October 1985.

114. Mr Skrijel said that it is obvious that the warrants were not justified. In his contention, there was nothing to connect him with the plantation and nothing sufficient to connect him with industrial paint tins. As he put it:

"The information given to Mr Musgrave on oath that persuaded him that there was reasonable ground for believing that a quantity of cannabis would be found on my ...premises was never revealed, possibly because Carmady knew it would be brought on to my premises by member (sic) of his special duties squad, all of whom were hand-picked by Mr Mengler, or anybody else instructed by him to bring it."

118. Mr Skrijel then said that the NCA had tricked him into going to Digby on 14 October 1985 to provide the missing connection. In his words:

"While I was delivering pamphlets against National Crime Authority here, they had me under surveillance, that's not disputed. I was then tricked into going to Digby. I was rung and I was told that the grass around my Digby property was getting too long and that I have to come down and cut the grass. Supposedly the call came from the Shire of Portland. When I went down there, I see the grass was not long. That's when the surveillance was pulled out. That's when the surveillance - Mr Mengler called the surveillance off." (My emphasis.)

"To me that is quite clear that they know I would not be there, that's why they pulled the surveillance up and arrested me next day. Why did they not wait - You Honour, me walking next to the bank, it is not a crime. Me going in the bank with a gun and robbing it, it's a crime. Me walking with a corrugated sheet of iron two kilometres away from that is not a crime, but me going to the plantation is a crime."

124. But later still in the opening Mr Skrijel appeared to abandon the suggestion that the grass was not in need of cutting, and therefore perhaps also the contention that it was not the Shire that had called to ask him to cut it, and went on to assert that NCA had tapped his phone at Digby and it was by reason of listening to his conversations with his wife that they determined when to execute the warrants. Thus, according to that version of events:

"... I have bad back, I have a three discs (sic) worn out and I cut the grass, six acres by push mower. I was crippled that night, I could not move, I could not hardly walk; I crawl. I rang my wife up and said `I'm coming home early in the morning because my back has had it.' They were listening to the conversation, they were there. That's why I was raided, because they knew I was not going to the plantation and that's why I was raided."... (My emphasis.)

128. Yet another version, as I understood it, was that police had listened through the key hole of Mr Skrijel's house during the evening of 14 October 1985 at least until he had chased them away with a gun. Thus:

"... As I lie on the floor - lie usually on the hard floor to straighten my back I hear a commotion outside. Your Honour got to remember I lived under the constant death threat. I went outside two or three times, that was - noise is running away. Finally I went outside with a gun in my hand, again they were running away. I stay outside nearly all night."

"... it is clear before any evidence or any suggestion was found, except on the two drug importers from Southend accusing me of growing marijuana, actually they accuse me of growing marijuana in my backyard, and the two sheets of corrugated iron that we found in the bush several months ago National Crime Authority has made its mind up that I was the boy to look for. They knew they were going to find the paint tins in my shed, they knew they were going to find marijuana - they never found the paint tins - they knew they were going to find marijuana, they knew the plantation was mine, all on the words of two drug importers from South Australia and two sheets of corrugated iron that I found in the bush and I took home".

136. The reference to the "two drug importers from South Australia" is a reference to Barry Trembath of Southend and Graham Watson[6] of Mt Gambier who had each given signed statements to Sergeant Iddles that Mr Skrijel had asked them to grow marijuana for him. Mr Skrijel described them as drug importers because he alleged that they were part of the heroin importation group upon which he had stumbled in 1978 when he saw the container dropped into the sea and picked up by the other Graham Watson.

139. Mr Skrijel said that on the morning of 15 October 1985 he was raided by a large number of police and that they then proceeded to plant at his premises the evidence upon which he was later convicted. As a consequence, he said, within no more than two minutes of beginning to search the police claimed that they had found a cardboard box of marijuana on the floor of the shed behind the house and a sawn off Cooey rifle on the bench in the garage. In Mr Skrijel's words:

"Early in the morning I went inside and I had made a cup of coffee, and I could not sit in the chair, I went outside and sat on the ground, and I had a spoon and I sat next to the little cherry tree and I had a spoon, and I'm digging the ground, just- well, the police come from everywhere. `We have search warrant', I say, `You've got nothing.' My words were, `You don't need a search warrant, there's nothing to find here, you can search everything.' Within maybe two minutes they said they found a box of marijuana. And the same time they found a - they reckon a sawn off gun on the bench. They then took me - they would not let me take the painkiller for quite sometime. They would not allow me to ring up my wife. Finally after about 15 or 20 minutes they allow me - I couldn't stand, but I don't know, I hope nobody gets it, but my back I get a bad sciatica pain in both legs, and I can't stand up."

143. That may be contrasted with a different version of the story which was published by Mr Skrijel and Mr Berthelsen in a document called the "Scales of Justice" (about which, more later). In that version Mr Skrijel alleged that when Sergeant Carmady arrived Mr Skrijel said to him:

and Sergeant Carmady, who was said to have a box of marijuana with him, responded:

149. In the "Scales of Justice" version of events, there were 37 police involved in the raid and all of them were armed. Yet in another version which Mr Skrijel gave to me in his opening some days after the first version set out above, Mr Skrijel said that only one of the police was armed and that went to show that they did not really believe that he was a danger:

"MR SKRIJEL: There it is. You see the police there are not wearing any flak jackets or having guns in their hands when the person who is deranged, who is threatening to kill the police comes in. You see Mr Mengler is in a short-sleeved shirt so there's no - - - HIS HONOUR: The point you are making is that P87 shows that the police were not armed. MR SKRIJEL: That's exactly, except one was armed and that was that one in the checked shirt. That was the one, my daughter, was producing a gun to her and that was the only one. You can see the gun, Your Honour. There's the gun in his belt, the guy in the checked shirt. Do you see the gun in his belt, Your Honour? So you can see there was one officer armed as I said he was and none of the others were armed. Apparently Mr Mengler did not fear me at all, he was in a T-shirt, pretty relaxed and he knew I was coming..."

153. Mr Skrijel referred to evidence given at his criminal trial that the police had continued their search after he was arrested and had found scales containing a small quantity of green vegetable matter located on the rung of a step ladder kept in the shed, a green plastic drum containing green vegetable matter hidden under a blanket in a crate in the shed, an off-cut from a timber tongue and groove board stored in the garage, of which the grain and cut were said to match the timber used to make a seed box located at the marijuana plantation in the forest, and a small quantity of green vegetable matter on the front seat of a disused utility parked in front of the house. Mr Skrijel said that the evidence which he would adduce would show that the police had planted the cannabis and the seed box.

156. Mr Skrijel referred also to evidence given at the criminal trial that some hours after he had been arrested, Sergeant Cook had arrived and carried out fingerprint testing, and some days later, after the prints had been developed and checked, Sergeant Cook had claimed to have developed a left thumb print matching Mr Skrijel's left thumb print on the barrel casing of the sawn off Cooey rifle and a palm print matching Mr Skrijel's palm print on the lid of the green plastic drum. Mr Skrijel said that he would show that Sergeant Cook had given false evidence at the criminal trial. He claimed that the evidence which he would adduce would demonstrate that the thumb print had been lifted from a licensed Gevarm rifle which police had taken out of his house and placed in the shed and that the palm print had been lifted from the lid of a coffee canister which had been on the island bench in the kitchen when the raid began on 15 October 1985.

159. Mr Skrijel referred also to evidence given at the criminal trial that a quantity of explosives and detonators had been discovered, stored inside the drum under the marijuana, when the contents of the drum were being tested by a police botanist same two weeks after the raid. Mr Skrijel said that the evidence which he would adduce would show that the police had planted the explosives in the drum.

162. According to Mr Skrijel, the cannabis, timber off-cut, and the unlicensed firearm and explosives were planted and the fingerprint evidence was fabricated by the NCA in order to frame him and finally to silence his campaign against drug trafficking and official corruption. He contended that the NCA was formed specifically to protect the drug trade in this country - specifically to protect large scale heroin importation and other large drug dealings - and that after everything else had been done without success to silence his allegations, powerful people decided that enough was enough and a plan was devised to frame him on drugs and firearm charges so as to discredit him. As he would have it, Mr Mengler was given the task of implementing that plan and Sergeant Cook was Mr Mengler's factotum, and they did it together by procuring the planting of the cannabis and the Cooey and giving false evidence about the finger prints, and in Mr Mengler's case, by later spreading false reports that Mr Skrijel was a suspect for the Russell Street bombing and falsely reporting that Mr Skrijel had threatened to shoot police.

165. Mr Skrijel was charged at or about 11.00 am on 15 October 1985 at the Casterton police station with possession and cultivation of cannabis and possession of an unlawfully shortened firearm and unlawfully shortening the firearm, and after police claimed to have identified the cannabis in the drum and found the explosives, he was further charged on 7 November 1985 with trafficking in cannabis and possession of such a quantity of explosives as to give reasonable grounds to suspect that they were not for a lawful purpose. After a contested committal hearing at which Mr Skrijel was committed to stand trial on each of the indictable offences, he stood trial in the County Court at Ballarat and was convicted on the charges of cultivating cannabis for the purposes of trafficking, trafficking and possession of explosives under suspicious circumstances. He was subsequently sentenced to 12 months imprisonment. Upon the request of counsel for Mr Skrijel, the trial judge also accepted from counsel a plea of guilty to the firearms offence, which was a summary offence, and imposed a penalty of $200.

168. In his opening Mr Skrijel claimed that counsel who had represented him at his trial and the trial judge were also involved in the conspiracy to silence him. He told me that his counsel did not call any of the witnesses that he wanted him to call and that after the jury had found him guilty of the indictable offences his counsel had entered the plea of guilty to the firearms charge contrary to his express instructions that he wished to plead not guilty. He said, moreover, that as counsel entered the guilty plea the trial judge had motioned wildly to Mr Skrijel to be silent as Mr Skrijel protested loudly that he wished to plead not guilty.

171. Mr Skrijel appealed from each the charges of cultivating cannabis for the purposes of trafficking, trafficking and possession of explosives under suspicious circumstances, but not from the firearms charge. His appeal came on to be heard before the Court of Criminal Appeal after a number of adjournments on 18 April 1987, by which time he had served all of his sentence of imprisonment less remissions. He represented himself throughout the appeal because he said that he was unable to obtain legal aid for representation.

174. Mr Skrijel told me that in the course of the appeal the Court of Criminal Appeal had called for production of the green plastic drum and the black plastic lid and that one of the judges made an observation to the effect that the lid on the drum was not the same as the lid shown in Crown photographs of the lid from which the palm print was alleged to have been developed. According to Mr Skrijel, counsel who appeared for the Crown on the appeal also acknowledged to the Court that it appeared to be so. But the proceedings were not recorded and there is no other record of what is contended to have been said.

177. The Court of Criminal Appeal set aside the convictions for possession and cultivation and trafficking in cannabis and possession of explosives. The reasons were, in short, that the trial judge had not sufficiently directed the jury on possible inconsistency between evidence given by Sergeant Cook, to the effect that he did not think that the lid had could be removed from the drum without smudging the palm print, and evidence given by Senior Sergeant Huggins, that he had removed the lid at the scene before it was fingerprinted.

180. The Court did not make any order about the firearms charge and there is no reference to the firearms charge in the reasons for judgment. And there is nothing in any other court document to suggest that the Court ever considered that charge. Mr Skrijel claimed, however, that the Court of Criminal Appeal had indeed overturned his conviction on the firearms charge and he based that claim on an assertion that he had handed up to the Court the document entitled "Comprehensive Summary of the Evidence" (even though it did not make any reference to the Cooey rifle) and to the "Scales of Justice" (which did contain something of Mr Skrijel's allegations as to the way in which the guilty plea came to be entered to the firearms charge). In a submission to the Joint Committee on the NCA on 4 October 1990 Mr Skrijel alleged that the Chief Justice and the Registrar of the Court of Criminal Appeal and possibly also the members of the Court of Criminal Appeal who heard his appeal were also involved in the conspiracy to silence him. The basis of the allegation seems to have been that there was no record of the firearms conviction having been set aside.

183. Mr Skrijel said that following the criminal appeal he and Mr Berthelsen had worked unsuccessfully to have politicians organise a Royal Commission into his alleged frame up but that their efforts had been thwarted by the powerful forces that were working against him. An inquiry was undertaken for the Commonwealth Attorney General by Mr David Quick QC of the Adelaide Bar, and in his final report of 4 April 1995 Mr Quick opined that there was reason to suppose that evidence may have been fabricated in order to incriminate Mr Skrijel. But Mr Quick was unable to form a concluded view and he recommended that a more formal investigation should be carried out under the Royal Commissions Act 1902 (Com).

186. There was no Royal Commission but a further investigation was carried out by the Victorian Deputy Ombudsman (Police Complaints), and he did not find that there was any substance in Mr Skrijel's allegations.

189. Mr Skrijel spoke then of records which he and Mr Berthelsen had subsequently obtained through FOI request and of investigations conducted by a fingerprint expert, Mr Keith Murdoch. He explained that this would be the evidence which would show how Sergeant Cook had fabricated the fingerprint evidence given at the criminal trial and that it would also show that Sergeant Cook had deliberately sought to mislead Mr Murdoch when Mr Murdoch had gone later to look into the evidence as part of the Deputy Ombudsman's inquiry.

192. Finally, Mr Skrijel made reference to the Cooey rifle and told me that although the Cooey rifle was made the subject of a forfeiture order at the end of the criminal trial (which it was), and so it was to be expected that it would have been destroyed, it was planted again at his Digby home in 1992 in order further to compromise his position. But he said that he did not attribute blame for that to Mr Mengler. He blamed it on the State of Victoria and perhaps also on the Commonwealth. As he explained it to me:

"MR SKRIJEL: It was in desperation to find the gun that they set me up for a second time. I'm not saying Mr Mengler himself was involved, I'm saying whoever set me up for a second time with a firearm was involved. HIS HONOUR: If that happened, it's very unfortunate but you can't blame Chief Superintendent Mengler for it, can you, or do you? MR SKRIJEL: No, I don't blame him. I'm blaming the Victoria Police. HIS HONOUR: Why tell me, Mr Skrijel? Why do I need to know this? MR SKRIJEL: Your Honour, the second defendant is the Commonwealth, the third defendant is State of Victoria - fourth defendant, sorry, and the police work for them so they are involved."

196. In final address Mr Berthelsen said he contended that Mr Mengler was responsible for planting the Cooey rifle on Skrijel in 1992, as was alleged in the pleadings.

200. As finally constituted Mr Skrijel's pleadings consist of a Statement of Claim dated 9 May 2001 and further amended on 24 April 2003, and a number of sets of further and better particulars. In some respects they are difficult to understand. At points they appear more directed to the establishment of a conspiracy to commit perjury than to a case in malicious prosecution. Comprehension of the pleadings is also complicated by the fact that the further and better particulars have not been consolidated or incorporated into the statement of claim. In substance, however, what appears to be alleged against Mr Mengler and Sergeant Cook is as follows:

(1) On 15 October 1985 Mr Mengler directed to be laid against Mr Skrijel charges of cultivating a narcotic plant contrary to the Drugs Poisons and Controlled Substances Act 1981 ("the cultivation charge"); unauthorisedly having in his possession a drug of dependence ("the possession charge"); and unauthorisedly having in his possession a shortened Cooey 22 rifle, serial no. 022019 ("the firearms charge").

(2) In order to substantiate the charges and to procure the prosecution and conviction of Mr Skrijel upon those charges, Mr Mengler did the following things:

* In 1985 Mr Mengler supervised an NCA investigation entitled "Operation Southend" into Mr Skrijel's allegations about traffic in hard drugs at ports along the southern seaboard of Victoria and South Australia near to the border.

* In October 1985 Mr Mengler directed that surveillance be set up at a cannabis plantation which had been located at the Weecurra State Forest about 16 km from Mr Skrijel's Digby home.

* On 14 October 1985 Mr Mengler obtained authority to proceed with a raid on Mr Skrijel's home at Digby and directed that the surveillance of the plantation be terminated.

* In connection with that surveillance Mr Mengler caused quantities of cannabis to be placed in the front seat of a Holden utility owned by Mr Skrijel, which was parked outside Mr Skrijel's Digby home; in a cardboard box which was then placed in a shed on the property; in the tray of Mr Skrijel's kitchen scales, which were then relocated from the kitchen to the shed; and in a green plastic drum belonging to Mr Skrijel which was kept in the shed.

* Mr Mengler caused to be placed at the plantation a wooden seedbox containing earth and at the same time to be placed in the shed at Mr Skrijel's Digby home an off-cut from some of the timber out of which the seedbox had been constructed.

* Mr Mengler caused to be placed in the shed at the Digby property the shortened Cooey rifle and caused a licensed Gevarm rifle belonging to Mr Skrijel to be brought out of Mr Skrijel's Digby home where it was kept and placed with the Cooey on the bench in the shed and for both weapons to be photographed together.

* Mr Mengler caused Sergeant Cook to develop a latent print of Mr Skrijel's left thumb from the wooden fore-end of the licensed Gevarm rifle and later to give false evidence that the print had been developed from the stock of the unlicensed Cooey rifle.

* Mr Mengler caused the contents of the green plastic drum, namely, six red marine flares to be removed and replaced with a quantity of explosives and detonators covered with a quantity of dried marijuana and for the drum with lid removed to be photographed so as to make it appear that the drum was full of cannabis.

* Mr Mengler caused Sergeant Cook to develop a latent print of Mr Skrijel's palm from the lid of the coffee canister kept in the kitchen of Mr Skrijel's Digby home and later to give false evidence that the palm print had been developed from the black plastic lid of the green plastic drum.

* Mr Mengler caused to be withheld from the hand up brief three unidentified finger prints which were found at the plantation and the existence of which was thought to be exculpatory of Mr Skrijel.

* Mr Mengler caused the prosecutor to withhold from the jury that Mr Skrijel's allegations of retribution which were the subject of the Operation Southend investigation were factually based.

* Between the time of Mr Skrijel's arrest and the time of his trial, Mr Mengler maliciously named Mr Skrijel as a suspect for the Russell Street bombing and maliciously alleged that Mr Skrijel was planning an attack on an NCA office.

* Mr Mengler caused Mr Skrijel's counsel to enter a plea of guilty to the firearms charge contrary to Mr Skrijel's instructions to his counsel that he wished to plead not guilty to that charge.

* In 1992 after the convictions had been set aside, and it had been ordered that the Cooey rifle be forfeited to the Chief Commissioner of Police, Mr Mengler caused the Cooey rifle to be planted in the ceiling of Mr Skrijel's Digby home.

(3) Alternatively, Mr Mengler caused the charges to be laid in the absence of reasonable and probable cause, because:

* The sole basis for the cultivation charge was the tongue and groove board off-cut alleged to be found in the garage and it is said to have been noticed by police immediately standing against the wall of the shed standing next to a large heap of wood on the floor of the shed.

* The garage and shed in which the wood and the drum and the firearms were alleged to be found were unlocked and could easily have been entered by others.

* Neither the Cooey nor the drum said to contain cannabis were shown to Mr Skrijel even though police did take him into the shed and show him the cardboard box of marijuana.

* The fingerprint evidence was not available until the arrival of Sergeant Cook at 6.40 pm on 15 October 1985.

(4) Sergeant Cook swore a false statement on 6 February 1986 that he had developed a latent left thumb print belonging to Mr Skrijel on the barrel housing of the Cooey and that he had developed a latent print belonging to Mr Skrijel on the black plastic lid of the green plastic drum and testified falsely to the same effect at the committal hearing on 4 July 1986 and again testified falsely to the same effect at the trial before the County Court on 25 March 1987 and withheld exculpatory evidence constituted of the three unidentified fingerprints found at the plantation.

(5) Following conviction, Sergeant Cook deliberately misled another fingerprints expert, Mr Murdoch, who had been appointed by the Deputy Ombudsman to investigate Mr Skrijel's complaints, by telling Mr Murdoch falsely that he had developed the print of Mr Skrijel's left thumb on the wooden stock of the Cooey and that the Cooey had been destroyed and that the only fingerprint documents available were a polaroid photograph of a thumb print (actual size) and two sets of fingerprints.

(6) Sergeant Cook also caused a photograph of the wooden fore end of the Gevarm rifle identified as "Casing of Gun" serial number 022019 to be delivered to Mr Skrijel on 4 March 1997 in response to a FOI request for the photograph referred to in Sergeant Cook's sworn statement of 6 February 1986 and swore falsely in his affidavit of 21 September 1998 that exhibit GWC 1 to that affidavit was the photograph which Sergeant Cook had shown to Mr Murdoch in 1987.

206. In their Defences, Mr Mengler and Sergeant Cook deny all of the allegations which are made against them. They deny that they are guilty of any wrongdoing in connexion with the investigation or prosecution of Mr Skrijel for the offences with which he was charged or at all.

209. I announced before the start of the trial and I repeated on a number of occasions throughout the trial that the trial would be conducted strictly on the basis of the pleadings. As may be apparent from so much of the opening as I have attempted to summarise above, some of the allegations made by Mr Skrijel in opening appear to go beyond the pleadings. That was not the result of any relaxation of the requirement that the case be confined to the pleadings. On each occasion that it was sought to tender evidence going beyond the pleadings, I rejected the tender expressly on the basis that it was not relevant to the matters in issue.

214. By any standard Mr Skrijel's allegations are extraordinary. That he chose not to give evidence on his own behalf is remarkable. He said repeatedly in opening that he had for the last sixteen years lived for the opportunity to have his allegations thoroughly and impartially investigated, and he claimed to have instituted this proceeding for that very purpose, and yet when the time arrived to have his claims examined on oath he was not prepared to do so. Consequently, there is no evidence that he ever did see the drugs drop he alleges he saw, or even that he saw what he believed to be a drugs drop, or that any of the incidents which he describes as the campaign of harassment were the result of his self-proclaimed stance on drugs (as opposed to other factors) and, if it matters, there is not even a denial on oath that he cultivated cannabis in the Weecurra State Forest or that he had cannabis and explosives in his shed or that he owned the shortened Cooey firearm which was found in the garage or that he had handled it.

217. It should also be understood that his decision to stay out of the witness box was an informed and calculated decision and not the result of any misunderstanding of the consequences of choosing not to give evidence or otherwise because he was not always legally represented. I warned him repeatedly of the need to give evidence to prove his assertions, and of the consequences which would follow from a decision not to give evidence. It was plain that he understood the warnings.

220. His explanation for not giving evidence was that a significant part of his case was dependent upon inferences which he said should be drawn from the documents, and that there was not much which he could usefully say about them on oath. Thus, as he said in response to one of the warnings I gave him:

"The thing is, Your Honour, I'm reading off 50-odd pages, those pages are not put together by me, they are put in by Mr Berthelsen here. I believe they are all factual but a lot of the words, as you can see, I can't even pronounce them."

"I do not intend to give sworn evidence for several reasons. The first is that is in the adversarial legal system the objective of the lawyer representing the defendant, including the Commonwealth and State of Victoria, is not to elicit the truth. It is to win to at any cost with little or not regard for the truth. Secondly, the evidence supporting the allegations contained in my statement of claim is found almost entirely in records produced by the defendants... There are very few things that I am really saying myself...The majority of it, 95 per cent of everything I have read to you so far is in their own documents or in the transcript (of the committal hearing and the County Court trial), so I just have to sit down and consider, is it worth me going into the witness box against four QC's whose job specifically is to mislead deceive and confuse..."

226. To some extent what Mr Skrijel said about the utility of giving evidence is true. His comprehension of the documents seemed at times to be limited and his understanding of the arguments in support of the inferences seemed at times to be no more than rudimentary. The greater part of the case was undoubtedly conceived and produced by Mr Berthelsen, for it follows closely the form and substance of a range of startling allegations previously made by Mr Berthelsen in a succession of publications which started at the time of the criminal appeal. They include a 54 page document entitled "Comprehensive Summary of Evidence (fully referenced)", which was prepared by Mr Berthelsen in 1987 for the purposes of the appeal; a 38 page monograph entitled "Mehmed Skrijel on the Scales of Justice", which was written by Mr Berthelsen in October 1988; a 33 page document entitled "Grounds for a Royal Commission into the Circumstances of the Arrest and Imprisonment of Mehmed Skrijel", which was written by Mr Berthelsen at some time before 7 November 1989; a submission, entitled "Submission No 19 " to the Joint Parliamentary Committee on the National Crime Authority, in which is contained, among a small library of other writings, a 107 page "Abstract" prepared and submitted to the Committee by Mr Berthelsen on 4 October 1990 (purportedly as attorney under power for Skrijel); and a collection of letters to various State and Commonwealth politicians penned by Mr Berthelsen over the period since the appeal (also purportedly in the capacity of attorney). In many respects Mr Skrijel was but a loudly talking head.

229. But I do not accept that lack of familiarity with the documents was Mr Skrijel's only or even principal reason for staying out of the witness box. I am satisfied that the main reason was fear of being tested on things about which he knew. He almost admitted as much in the following observation:

"I have considered my position and believe this option (of giving sworn evidence) amounts to swimming among the sharks, if I may use the terminology."

234. Whatever might be said about the embellishments which Mr Berthelsen has put upon Mr Skrijel's claims, and thus whatever might be said about how much of the expression of Mr Skrijel's claims originated with Mr Berthelsen, at bottom they are based on core allegations which originated with Mr Skrijel. Only Mr Skrijel could say of his own knowledge whether he ever did see any drugs drop or whether he ever was threatened because of his stance on drugs or whether he had kept the sawn off Cooey or marijuana or explosives in his shed or whether he had established a marijuana plantation in the forest. In the end he was not prepared in this proceeding to swear to the truth of what he so freely alleged about any of those things.

237. An equally remarkable feature of Mr Skrijel's case was the way in which some of the most serious allegations made in opening changed from time to time. One notable example was the allegation that Sergeant Cook had given false evidence about fingerprints at the County Court trial. Part of Sergeant Cook's evidence was that he had developed and taken a polaroid photograph of Mr Skrijel's palm print on the black plastic screw-on lid of the green plastic drum. As first articulated on 3 March 2003 Mr Skrijel's allegation was that Sergeant Cook had developed and photographed the palm print on the black plastic press-on lid of a coffee canister taken from the kitchen. In Mr Skrijel's own words:

"The same with a photograph of my thumb print (sic, palm print) on a so called green plastic drum. I was sitting outside when they come and arrested me, I had a cup of coffee in my hand. The container - coffee canister was sitting on the island bench, so was the sugar, that's where my thumb print (sic, palm print) was taken - - - The palm print on the coffee canister - the palm print on the green plastic drum (lid) was actually taken off the coffee canister (lid)."

241. In aid of that allegation Mr Skrijel handed up to me a green plastic drum[7], which he said was the green plastic drum in which the marijuana and explosives were alleged to have been found, together with a black plastic screw-on lid, which he said was the original black plastic screw-on lid, and he told me that he would later tender as evidence a black plastic press-on lid of the same pattern and design as the coffee canister lid, only smaller, and a video made some six months before the trial that would show the drum and the smaller sized black plastic press-on lid together. In his words:

"There's another video there that I will rely on. It's of the green plastic drum I will produce in court, the original lid, the smaller lid of the coffee canister and of the QE (sic, Cooey). Again I will rely on that evidence filmed by a person who will be called here to give evidence... That was shot only a few months back, maybe six months ago."

245. The pattern which is moulded into the top of the lid which he handed up to me is plainly different to the pattern which is moulded into the top of the lid shown in the palm print polaroid. The former has four radial ridges moulded into the top surface. The latter has four pairs of radial lines. The point which Mr Skrijel was therefore seeking to have me accept in the early stages of the opening was that the palm print could not possibly have come from the original lid of the drum. As he would have had it, it had to have come from the lid of the coffee canister.

248. Furthermore, when the video was subsequently screened[8] it did indeed show a green plastic drum and a smaller black plastic press-on lid and, significantly, the top of that lid appeared to have moulded into it a pattern of four pairs of pronounced radial lines and two pronounced concentric circles (apparently similar to the lines and circles on the top of the lid as represented in the Court Book copy of the palm print polaroid photograph). It also had a relatively smooth vertical surface of the circumference (apparently similar to the vertical surface of the circumference of the lid as represented in the same Court Book copy of the palm print polaroid).

251. On 4 March 2003, however, the third defendant produced to the court a set of original contact prints of crime scene photographs[9]. One of those photographs shows the drum with a lid taken at the crime scene. It makes clear that the top of the lid at the crime scene is not of the same pattern as the top of the canister lid - the radial lines and concentric circles are much less pronounced - and unlike the canister lid, the lid at the crime scene has a succession of ridges or serrations around the whole of the vertical surface of the circumference.

254. On 5 March 2003 Mr Skrijel applied at the beginning of the day for leave to discontinue the proceeding and after argument on that application, which was in effect abandoned, the trial was adjourned to 7 April 2003 to allow Mr Skrijel to take legal advice and to endeavour to retain counsel to appear for him for the remainder of the trial. For whatever reason he was unable to retain the services of counsel.

257. When, however, the trial resumed on 7 April 2003 counsel for the third defendant called for production of the lid. He did so pointedly by reference to a list of documents and things of which Mr Skrijel's former solicitor had given notice in January 2003 as documents and things that Mr Skrijel intended to rely upon at trial. Thus the call was made:

"What I want to call for, Your Honour, is in fact item 73. I don't know what it is but it's identified as a black press-on type lid from a kitchen canister photographed by police and referred to at the plaintiff's trial as the lid belonging to exhibit H and the entry is `see physical exhibit'. We would like to call for the production of item 73."

261. But the lid was not produced. Instead, Mr Skrijel said:

"I cannot find, I have lost it, I have been looking for it for weeks on end. They have been hiding it in too many places in the forest. The one place where I hid it, they started cutting the forest and bulldozers and trucks went through it; the same place - not the same place but the same block, the gun was hidden too and it took me two weeks with a call detector person going looking for it trying to find it."...

265. The fact that the lid was said to have been lost so recently was enough to make me wonder about it. The fact that it was said to have been lost in the way described by Mr Skrijel was enough to make me doubtful. Further doubt was cast upon the matter by evidence later given by Mr Berthelsen in cross examination. At one point, he agreed he did not know as at 4 March 2003 that the lid had been lost; at another point he said that he could not recall when it was that he had learned that the lid had been lost; at another point he said that he recalled that he had learned of its loss some time before 4 March 2003, although he could not recall the details; and then, after a significant adjournment, he gave in response to scripted questions put to him in re-examination by Mr Skrijel's current solicitor a detailed account of how he had learned of the loss in January 2003 and had conferred with Mr Skrijel and Mr Skrijel's former solicitor at that time about the profound effect which the loss of the lid would have on Mr Skrijel's case. Asked then why the defendants had not been informed of the loss of the canister lid before the trial began, he said that he believed that Mr Skrijel's former solicitor had informed them. The former solicitor was not called to give evidence, despite the fact that I gave an express Jones v Dunkell warning to Mr Berthelsen and Mr Skrijel's current solicitor.

268. Still further doubt was cast upon what was said about the loss of the lid by the way that Mr Skrijel continued with his opening after 7 April 2003. At first he seemed oblivious to the production of the contact sheets on 4 March 2003, or at least oblivious to what they showed. Thus there was the following exchange in the course of his opening on 9 April 2003:

Mr Skrijel: "Surely if that drum was full of marijuana and gelignite, there should have been a crime scene photograph, Your Honour. We have got a crime scene photograph in a little thumb print photograph that were only produced the other day in this court. You cannot see nothing of it." His Honour: "Isn't that a crime scene photograph of the drum?" Mr Skrijel: "Your Honour, where is the lid, where is the lid on it? It's a crime scene photograph is a thing with the lid on and they point the finger where the palm print is and then they take the palm print, that's a crime scene photograph. A drum like that does not tie me up to anything because there's no fingerprints on anything there."

272. Later it emerged why. As already noted, the Court Book copy of the palm print photograph was a photostatic copy of the original. Because of the poor quality of reproduction the photostatic copy made it appear that the radial lines and concentric circles on the top of the lid were much more pronounced than in fact they were, and that there were very few ridges or serrations around the vertical surface of the circumference. Apparently Mr Skrijel was still working off the photostat and so did not realise that the clarity of the original contact prints contradicted his assertion that the lid shown in the contact prints was not the lid on which the palm print had been photographed. Oblivious to what the contact prints actually showed, he continued with the contention that the lid which he had handed up to me was the original lid of the drum.

275. The problem for him which then emerged, however, was that the drum as returned to him by the Crown had been photographed by television station GTV 9 shortly before its return, and he had acknowledged in Submission 19 that the lid as shown in the GTV 9 photograph[10] was the lid as it was returned to him. The lid in that photograph corresponds exactly with the lid shown in the crime scene contact prints.

278. A still further problem for him emerged when it was later realised that if one looks at the original of the palm print polaroid[11] instead of the photostat, the radial lines and concentric circles on the top surface are not pronounced and the lid has serrations or ribs around the whole of the vertical surface of the circumference. It is identical to the lid shown in the crime scene contact prints[12]. Hence the lid from which the Crown had alleged the palm print was taken was or was identical to the original lid of the drum and dissimilar to the lid of the coffee canister.

281. At about that stage Mr Skrijel experienced the bout of nervous anxiety which was said to make it impossible for him to carry on the presentation of his case.

284. I do not accept that Mr Skrijel could have been mistaken about the lid which was on the drum when it was returned to him by the Crown, or that he could have been mistaken in contending that the lid on the drum which he handed up to me was the original lid, as he endeavoured to persuade me that it was. The evidence makes plain that it was not.

287. A third matter which I regard as reflecting adversely upon the veracity of the allegations made by Mr Skrijel in the course of his opening was what he said about possession of the sawn-off Cooey rifle. The difficulty which he faced from the outset was that he had pleaded guilty to possession of that weapon. Of course it does not necessarily follow from the fact that he pleaded guilty that he was guilty. The admission of guilt was powerful evidence but not necessarily insurmountable. There could have been an explanation consistent with innocence, such as fear or illness or ignorance or even expedience[13]. And if that had been the claim and if he had given sworn evidence to that effect I would have been ready to be persuaded. But the course which Mr Skrijel chose to pursue was nothing like that. As I noted above, the allegation which he made in opening was that his barrister had entered a plea of guilty to the firearms charge contrary to his express instructions to plead not guilty and that the trial judge had motioned to him wildly to be silent when he called out that he wished to plead not guilty. As Mr Skrijel put it in opening:

"I was placed in custody in the cells at the rear of the court immediately after the jury convicted me on the three indictable offences and was still in custody when the firearm charge was read out and when my barrister entered a guilty plea contrary to my instructions. The firearm charge was never read to me, Your Honour and I believe the rules of the court state that the charges should be read to the accused and then his barrister can plead, if that's the way it's been directed."

291. Mr Skrijel had previously put the same allegation, albeit in different terms, in paragraph 6 of an affidavit which he swore in support of an interlocutory application on 26 February 2002, as follows:

"Mr Brewer (his counsel at the criminal trial) returned to the Bar table and informed the court that I intended to plead guilty. I called out loudly that I pleaded not guilty. (The Judge) motioned furiously to me to be quiet and accepted the guilty plea from Mr Brewer. I was fined $200 and (The Judge) ordered that the shortened Cooey firearm, serial number 022019, be forfeited to the Commissioner of the Victoria Police."

295. Contrary to those remarkable allegations, the evidence shows that Mr Skrijel did instruct his barrister to plead guilty to the firearms charge; he was not locked in the cells during the plea; and there was no yelling out or anything else to suggest that the plea was not intended.

298. It will be recalled that Mr Skrijel was charged on 15 October 1985 at the instigation of Sergeant Carmady with the offences of possession and cultivation of cannabis and possession of the firearm and shortening the barrel of the firearm, and that he was charged on 7 November 1985 with the further offences of trafficking in cannabis and possession of the explosives. Even before those further charges were laid, on 23 October 1985 Mr Skrijel's then solicitors, Prus & Markopoulos, wrote to Sergeant Carmady as follows:

"RE: MEHMET SKRIJEL We confirm a telephone conversation between yourself and Mr Prus of our office on even date and confirm that our client intends to adopt the following course in respect of the charges against him: 1. In respect of counts 1 and 2 of cultivating and possession of cannabis L, the accused has instructed us that he intends having the matters dealt with by way of Committal proceeding, 2. In respect of count 3 and 4 (sic), the accused instructs that on the charge of being in possession of a pistol, to wit a .22 calibre shortened firearm, he intends to plead guilty to that charge and have that matter dealt with summarily. In respect of count four, that of shortening the barrel of the firearm, he would be pleading not-guilty, however, we understand that as both these charges arise out of the same circumstances, that count 5 being an alternative would then be withdrawn..." (My emphasis.)

302. The transcript of the criminal trial records that on 1 April 1987 the jury brought in a verdict of guilty on one count of cultivating cannabis for purposes of trafficking, one count of trafficking in a drug of dependence and one count of possession of explosives under suspicious circumstances. At that point the allocatus was addressed to Mr Skrijel, and Mr Skrijel's counsel then asked for time to speak to the Crown prosecutor. At 11.29 am the court adjourned to accommodate that request.

305. The Court resumed at 11.46am. The transcript records that at that point Mr Skrijel's counsel told the judge that he had resolved what needed to be resolved and the Crown prosecutor then filed an information under s. 359AA of the _Crimes Ac_t 1958 so that the summary charge of being in possession of the shortened firearm could be dealt with at the same time as the indictable offences. The judge then asked Mr Skrijel's counsel whether it was Mr Skrijel's intention to plead guilty to that charge and counsel responded that it was and that Mr Skrijel wished the plea of guilty to be entered through counsel. The plea followed in relation to all offences, with Mr Skrijel apparently in court in the dock, concluding at approximately 2.31 pm. At the conclusion of the plea the judge remanded Mr Skrijel in custody pending the provision of a psychiatric report for further plea and sentence.

308. The matter then came on for sentencing on 10 July 1987 and the transcript records that near to the outset of that occasion Mr Skrijel told the judge that the plea which had been presented for him by counsel on the last occasion was not his plea and that he wanted to present his own. To begin with the judge demurred, but then his Honour was silent while Mr Skrijel said all that he seems to have wanted to say. Mr Skrijel delivered himself of a diatribe as to the way in which his counsel had conducted his defence and far ranging allegations about the shortcomings of the NCA, similar to those which he has made in this proceeding, and of the sacrifices he had made in the cause of fighting drugs and corruption, and he concluded with the following peroration:

"I will pay penalty, whatever it is, I'm not scared of gaol or anything else. I know I'm innocent and I will pay whatever time you set, I will pay with pleasure. I have been treated in that prison perfect; the officers, you cannot get a better people. Only thing, I have one more complaint there, the doctor, I've been seeing once and there is not proper doctor for my neck, but it doesn't matter, I will pay the penalty, anything you set, but I'm innocent person and I will remain as I am and I will fight as soon as I get out again, same way as I have fought for nine years. Why I fought is so your kids and my kids won't have to fight with guns. I fought it with the letter and demonstration and hunger strikes, but this country does not want people like me there. I am sorry, I gave everything to this country I can, 27 years of my life and very hard work too and I am sorry for those kids here, they have to fight this corruption with gun. There is nothing left. Thank you, Your Honour, that' all I have to say."

Notably, however, he did not say anything about the firearms charge and sentence was then imposed on all counts, including the firearms charge.

313. The trial judge's associate was called to give evidence on behalf of the first defendant. She recalled Mr Skrijel's trial and she was able to refresh her recollection with the aid of her coram book, in which she had made contemporaneous notes as the trial had proceeded. To the best of her recollection, Mr Skrijel was present in Court throughout the trial, as of course one would expect him to be. She had no recollection of any calling out about the plea of guilty and she was confident that if such an extraordinary thing had occurred she would have remembered it.

316. Given the state of the objective evidence, and the associate's testimony, the only plausible explanation of Mr Skrijel's remarkable allegations about his plea of guilty to the firearms charge is that they are false.

320. Mr Berthelsen was called as Mr Skrijel's first witness and, as with Mr Skrijel's opening, I found a good deal of Mr Berthelsen's evidence unbelievable.

323. He deposed that he had been present at the appeal before the Court of Criminal Appeal and had seen the green plastic drum handed up to the court and that the court had commented that the lid which was screwed on the drum as handed up was not the same as the lid shown in the photograph of the palm print which the Crown alleged to have been developed from the lid of the drum:

"Q: ...Is that the drum you seen in the Full Court?---It certainly has the same colour and same appearance and same shape and everything about it. There's some distinguishing features that make the drum - I didn't get a close look because it wasn't actually handed to you (Skrijel), but I was sitting immediately behind you and the judge - I think I had better start from what I saw first. First of all the barrel was brought into court, the judge examined this and he tested the proposition whether you could fit you hand and he put his fingers like this...Then I saw him turn it and they had a look at it and inspected the whole thing just like I', looking at it right now. After that, they turned their attention to the photograph of the lid and then I saw them look back at the lid again and then they smile a bit and the presiding judge said to his colleague, `Have a look', and so he had a look, and then he passed it down to (counsel for the Crown) and he examined it in the same way and looked at the photograph and he said, `It appears so, Your Honour'. The reason I'm pretty certain - when I say - I would have to be as certain as anybody could be, is this has quite a few distinguishing features, this particular lid. It has four radial sections which are raised quite a significant distance above the surface of the lid and it would make it very difficult to get your palm print on to the surface of that lid in one of the four quadrants whereas the one I see in the photograph, it has 8 radials, all paired and each of those pairs are again at 90 degrees apart. That one (shown in the photograph) does not have the same raised sections so it would be relatively easy to get a palm print on that one. Again, this one has serrations all around the sides, and I heard Mr Barnett refer to those serrations and..." (Emphasis added.)

327. The description of the lid given in the emphasised passage of that evidence corresponds with the lid which Mr Skrijel misrepresented to me was the original lid. But as has already been explained, the GTV 9 picture shows that the original lid was of different design and matched the lid shown in the crime scene contact prints and the palm print polaroid. It follows that even if one gives this aspect of Mr Berthelsen's evidence the most favourable construction consistent with the objective evidence, it was at best a false reconstruction based upon a misconception.

330. Mr Berthelsen was asked in cross examination whether he could account for the fact that the canister lid which Mr Skrijel had said he would produce but then later said was lost was not of the same design as the original lid shown in the contact prints and the palm print polaroid. The truth was that Mr Skrijel had been shown to be wrong about the canister lid depicted in the video. It was not of the same design as the original lid of the drum. But that was not the answer which Mr Berthelsen gave. Instead his evidence was:

"MR TOVEY: How do you account for the fact that the canister lid that Mr Skrijel said he had is not in fact a canister lid of the same design as that which was on the drum? --- Do you want my real opinion about how I account for that? Yes? --- It can be done through imaging, through Photo Editor. HIS HONOUR: Through what, did you say? MR TOVEY: Through changing the photographs? --- We are alleging that was done in the first place, funny games were played in the first place and so it would not be inconsistent to do the same thing in coming up with photos."

334. I wondered when Mr Berthelsen gave that evidence whether he might not have been suffering from the same nervous disability as was said to have afflicted Mr Skrijel.

337. Mr Berthelsen also gave evidence in chief that the matter of the firearms charge had been dealt with in the Court of Criminal Appeal, resulting in a decision by the Court that the charge should be set aside:

"Q: What did you hear in the appeal court, if anything, in relation to the firearms, Mr Berthelsen? --- I will try and think back. My recollection is you (Skrijel) raised this matter, you know, it's quite a few years by my recollection is that you raised this mater, you said that immediately you had been convicted on the indictable offence, or words to that effect, the jury were discharged and you then were taken - led to the cells at the back of court where they put you behind bars and then apparently after some time, perhaps quarter of an hour or thereabouts, your barrister approached you and you spoke to him through the bars and he asked you, `Are you happy for the summary matter to be heard in this court', and I understand then you said yes, you would have no objection to that and then he said, `How would you like to plead in relation to the summary of possession of a shortened firearm', and you said, `I'm not guilty', and then he went back to the bench and he then had a discussion for a few minutes about whether he could enter the plea through himself, and Judge Nixon said yes, and then he entered the plea of guilty and I recall that you were - you said to the court in the appeal court that, `I then called out that I'm not guilty', but that plea entered by you apparently was not accepted as a plea, it was accepted through the barrister and hence you were convicted."

341. Quite apart from the inherent improbability of that evidence, Mr Berthelsen later conceded in cross examination that he made no mention of the firearms charge in the notice of appeal because he believed that Mr Skrijel had pleaded guilty to that charge and hence he thought that it was not appropriate to appeal against it. The court file shows that an application was not made to amend the notice of appeal to make reference to the firearms charge. As already observed there is no reference in the court's reasons for judgment to the firearms charge and there is no reference in the court's orders to the firearms charge. If Mr Skrijel had made to the court an extraordinary allegation like that which is set out above it would undoubtedly have called for the closest scrutiny and a report from the trial judge. But there is no suggestion of either.

344. Apart from being unconvincing a large part of Mr Berthelsen's evidence was really not to the point. Although he was responsible for most of the written material which has been propagated on Mr Skrijel's behalf, and therefore for some of the embellishments which have been grafted onto Mr Skrijel's core allegations over the last 16 years, he has no personal knowledge of the facts. He did not meet Mr Skrijel until after Mr Skrijel was charged with the offences and, apart from sitting through the criminal appeal, he had nothing to do with any of the matters or people concerned with the offences. The majority of his cross examination was directed accordingly to suggestions that those of Mr Skrijel's allegations which were based on interpretations of the documents were so unlikely as to be unbelievable, and otherwise to a significant attack on his credit.

347. It was put to Mr Berthelsen that he must have realised that his contention that the firearms conviction had been set aside was incredible, given that the conviction was not even mentioned in the notice of appeal which he had drafted; that he had calculatingly led another witness, Keith Murdoch, to a conclusion that Murdoch had been misled about the evidence of fingerprints on the Cooey rifle (when in truth there was no reason to think that Murdoch had been so misled); that he must have realised that the contention about Sergeant Cook having taken Mr Skrijel's palm print from the coffee canister lid (instead of the original drum lid) was premised upon the misconception that the original drum lid was not returned with the drum to Mr Skrijel after the appeal; and that he had connived with Mr Skrijel to make false allegations concerning the evidence about the lid of the drum.

350. Mr Berthelsen's response to that attack was not very satisfactory. Among other things it tended to show that he has been a powerful influence on Mr Skrijel and upon the conduct of this litigation. It suggested to me that the continuation of this proceeding may be as much if not more attributable to Mr Berthelsen's need to justify his own position as to any sense of grievance on Mr Skrijel's part. As Mr Berthelsen said in response to one question: "I am not going to spend 16 years of my life on something that is just a total waste of time, no way". It also showed that significant aspects of Mr Skrijel's allegations owe as much to Mr Berthelsen's misinterpretation of the objective evidence as to any thing that Mr Skrijel ever experienced. I include among those the allegations made about the substitution of lids on the green plastic drum and the allegations about Sergeant Cook's evidence concerning the thumb print found on the barrel casing of the sawn-off Cooey rifle and the allegation about the lid of the drum having no circumference serrations. Mr Skrijel may have been the one who advanced those allegations, but Mr Berthelsen seems to have been responsible for feeding him with the theories upon which they were based. The cross examination revealed a degree of suspicion on Mr Berthelsen's part which in my view is beyond reasonable understanding. Examples include Mr Berthelsen's interpretations of messages from Mr Mengler to Vicpol and Southpol as attempts to blacken or besmirch the reputation of Mr Skrijel, and Mr Mengler's reports to the Russell Street bombing task force as efforts on Mr Mengler's part to silence Mr Skrijel's voice of protest, and the allegations made in the "Scales of Justice" and the "Grounds for a Royal Commission" documents that the Parliament and the judiciary and the NCA and the legal profession are combined in a conspiracy to silence Mr Skrijel's voice of protest.

353. I perhaps should say, however, that despite the misgivings which I have about Mr Berthelsen's role in this litigation I do not consider that it has been established that he made any allegations that he knew to be false. He was shown to be wrong on critical issues and on others. But that is not the same thing as dishonesty. With him I think it is rather more a case of none so blind as he who will not see. Mr Berthelsen has devoted the last sixteen years of his life to advancing what he believes to be the truth about Mehmed Skrijel, and he is a true believer. He may have so much lost objectivity about the matter as to be unable to discern fact from fiction. But I think that he believes in the fiction.

357. The second witness for the plaintiff, Mr Keith Murdoch, was a retired sergeant of the New South Wales police force who had headed up the Central Finger Prints Bureau in Sydney until his retirement from the force in 1986. The thrust of his evidence in chief concerned the polaroid photograph[14] showing Mr Skrijel's left thumb print which had been tendered at the criminal trial. At the trial Sergeant Cook had sworn that the print had been developed from the barrel casing of the sawn-off Cooey rifle. In Mr Murdoch's opinion the photograph showed a thumb print on a cylindrical wooden object, which could not possibly have been the barrel casing of the Cooey, and which in all probability was part of Mr Skrijel's licensed Gevarm rifle.

360. Mr Murdoch originally became involved in the matter as part of the Deputy Ombudsman's investigation in 1997. At that time the Deputy Ombudsman commissioned Mr Murdoch to determine whether the polaroid photograph was a forgery, and in order to do that Mr Murdoch attended at the Victorian Forensic Science Institute and spoke to Sergeant Cook. Mr Murdoch deposed that at that time Sergeant Cook displayed to Mr Murdoch a polaroid photograph which Sergeant Cook told him showed the fore-end of the stock of the Cooey rifle, and that Sergeant Cook said that it was the only photograph on file of Mr Skrijel's fingerprints on the Cooey.

363. As part of that 1997 examination, Mr Murdoch made careful notes of the identifying marks and notations that appeared on the photograph and he recorded in the notes that the photograph showed Mr Skrijel's left thumb print pointing up and forward toward the muzzle, as it would if the rifle had been held at the right shoulder firing position. Mr Murdoch said that he had asked Sergeant Cook at the time whether he might see the weapon and that Sergeant Cook had said that he could not because he believed that the weapon had been destroyed. Mr Murdoch nonetheless concluded on the basis of his examination at that stage that there was nothing to suggest that the photograph was a forgery.

366. Over a year after he had finished the work for the Deputy Ombudsman Mr Murdoch was contacted by Mr Berthelsen and Mr Berthelsen asked him to investigate the matter further on the basis of what Mr Berthelsen characterised as new evidence obtained by Mr Skrijel under FOI. That was an enlargement of the front and rear of a polaroid photograph[15] which was said to show Mr Skrijel's thumb print on the barrel casing of the Cooey rifle and also a photograph of the Cooey rifle itself pictured lying on a page of the Australian newspaper. As appeared from that photograph the barrel casing was manufactured out of steel, not wood, and the sides of the casing were flat, not cylindrical. Mr Murdoch said that Mr Berthelsen came to his home in Sydney and then spent the better part of six hours briefing him on what Mr Berthelsen said had been discovered. As well as the FOI photograph and the photograph of the Cooey pictured on the Australian newspaper, Mr Berthelsen gave to Mr Murdoch a photograph of the green plastic drum which had been taken by Mr Skrijel, but which Mr Berthelsen led Mr Murdoch to believe was an original crime scene photograph, and also a copy of the polaroid photograph which Sergeant Cook had sworn at the criminal trial showed Mr Skrijel's palm print on the lid of the drum.

369. Mr Murdoch deposed that upon examination of the photographic enlargement obtained under FOI he concluded that it showed Mr Skrijel's left thumb print pointing down and away from the muzzle, which is to say in a diametrically opposite direction to the direction which Mr Murdoch had noted in 1997 as shown in the polaroid photograph handed to him by Sergeant Cook. Hence Mr Murdoch had concluded not only that the FOI enlargement could not be an enlargement of the polaroid photograph which he had seen in 1997 but also that Sergeant Cook had not told him the truth when he had said in 1997 that there was only one photograph on file showing Mr Skrijel's fingerprints on the Cooey rifle. Further, in Mr Murdoch's opinion, the object which was shown in the FOI enlargement appeared to be a cylindrical wooden object. Hence he had concluded that it could not be a photograph of the stock of the Cooey rifle (because it was made of metal and had flat sides). Finally, Mr Murdoch was led by what Mr Berthelsen had implied about the photograph of the green plastic drum to conclude that the lid shown in the polaroid photograph was not the original lid shown in what Mr Murdoch thought to be the official crime scene photograph of the drum.

372. Mr Murdoch was cross examined at length and the impression which I formed of him as a result of that exercise was that he was an honest and sincere witness who was prepared to make concessions whenever good reason to do so was shown. But he also appeared to me to be a man whose experience in the science of fingerprinting had become a little dated in the years that have elapsed since his retirement. And as he readily conceded, he was not altogether au fait with some of the forensic techniques that were used in this case and consequently he had made some mistakes in the conclusions which he drew. For example, he did not know that crime scenes were videotaped before the fingerprint examination was conducted and he did not know that some crime scene photographs were taken before objects were dusted for finger prints. Moreover, until he got into the witness box he appeared not to know that there was a crime scene video at all or that there were crime scene photographs of the Cooey rifle and the green plastic drum with its lid attached (contrary to the impression with which he had been left after his six hour consultation with Mr Berthelsen in 1998).

375. It was also revealed in cross examination that a number of the other conclusions which Mr Murdoch had reached had been influenced by his consultation with Mr Berthelsen and that some of his conclusions were heavily influenced by what he had read of Mr Berthelsen's materials or been told by Mr Berthelsen. As it appeared to me:

* Mr Murdoch's only reasons for concluding that the object shown in the FOI enlargement was made of wood was because Sergeant Cook had mistakenly so described it in discussion with Mr Murdoch at the Victorian Forensic Science Institute in 1997.

* Mr Murdoch accepted that the appearance of the object as shown in the photograph was just as consistent with it being made of a substance such as metal or plastic, as it was with it having been made of wood.

* Mr Murdoch's only reasons for concluding that the object shown in the FOI enlargement was cylindrical was because Sergeant Cook described the object as the barrel casing and because variations in the thickness of white fingerprint powder applied to various parts of the surface of the casing, combined with deterioration in the polaroid photograph since it was taken in 1985, created the illusion that the surface may be convex.

* It is possible that in its original state the polaroid photograph did nothing to suggest that the surface was convex.

* Although Mr Murdoch's recollection and note were that the polaroid print which he examined in 1997 showed Mr Skrijel's left thumb pointing up and towards the direction of the muzzle, and although the original polaroid print and the FOI enlargement show Mr Skrijel's left thumb pointing down and away from the direction of the muzzle, which is to say opposite to the direction which Mr Murdoch thought he observed, the markings on the original polaroid print and the FOI enlargement are identical in almost all respects to the markings recorded by Mr Murdoch as the markings which he observed on the polaroid print shown to him in 1997 (and the very small differences that exist are due to some slight recording errors on Mr Murdoch's part).

* Mr Murdoch's only reason for concluding that the photograph which he examined in 1997 was different to the original polaroid print and FOI enlargement, was because he had recorded in his notes that the photograph which he examined in 1997 showed the thumb print pointing up and towards the muzzle, not down and away from the muzzle. He has no independent recollection of the direction of the print.

* Mr Murdoch had made an error when recording the direction of the thumb print which he observed in 1997. It pointed down and away from the muzzle.

385. The following additional concessions were extracted from Mr Murdoch in cross examination:

* The vertical dimension of the object shown in the photograph appears to be very similar to the vertical dimension of the barrel casing of the Cooey rifle.

* The object shown in the photograph has what appears to be a scratch or imperfection on the surface which in shape corresponds to some extent with a scratch or imperfection on the surface of the stock of the Cooey rifle.

* The vertical distance from the left hand end of the scratch or imperfection shown in the photograph to the top of the object shown in the photograph corresponds closely with the vertical distance between the muzzle end of the scratch or imperfection on the stock of the Cooey rifle to the top of the stock of the Cooey rifle.

392. William Frederick Toomer was called as Mr Skrijel's third witness, apparently to prove what had happened at an inspection of the Cooey rifle by the defendants' representatives at Mr Skrijel's former solicitor's offices on 4 September 2002. Mr Toomer was blind in one eye and did not get a good look at what occurred at the examination. He was seated in one office and the representatives inspected the weapon in another office across the hall albeit with the doors to both offices open.

395. Apart from that the only other thing of note to come out of Mr Toomer's evidence was that Mr Toomer had known Mr Skrijel for about 13 years and was a member or official of some sort of self proclaimed whistle blowers group which had supported Mr Skrijel in his campaign against the NCA.

399. Mr Wally Edwards, a solicitor with the firm of Zigouras & Co was called as the plaintiff's third witness also to give evidence concerning the inspection which took place on 4 September 2002. His evidence did not take the matter any further.

403. Dr Abdul Ghani Khan was called on Mr Skrijel's behalf, apparently in an attempt to disprove that the doctor had vouchsafed to Sergeant Iddles in June 1985 information concerning the mental health of Mr Skrijel and threats made by Mr Skrijel to shoot police unless Mr Skrijel's complaints were resolved to Mr Skrijel's satisfaction. Dr Kahn swore that he had no recollection of being interviewed by Sergeant Iddles or indeed any NCA investigator and he said that he was pretty sure that he was not, because:

"These are not day to day events to be interviewed by police or a NCA officer... (It) would have left some impression in my mind but I'm absolutely sure I never had any such meetings."

407. I do not think that Dr Kahn told other than the truth as he recalled it. But I do think that he was mistaken in his recollection. He had no notes or anything else to jog his memory and it is understandable that a busy medical man could have forgotten about such an interview so long ago; despite what he said about such a thing being an extraordinary incident. Contrastingly, Sergeant Iddles made substantial contemporaneous notes[16] as he interviewed Dr Kahn and they contain information which in all probability can only have come from Dr Kahn.

410. Furthermore, after Dr Kahn had given his evidence, the first defendant managed to obtain by subpoena copies of notes which Dr Kahn had made at the time of Sergeant Iddles' investigation. Dr Kahn had left those notes at the practice with which he had been working in 1985 when he moved to take up practice in Sydney some years later. He did not recall them at the time he gave his evidence. But they record that Dr Kahn was interviewed by Sergeant Iddles and Detective Collins concerning Mr Skrijel in 1985 and that Dr Kahn did give to Sergeant Iddles the information which Sergeant Iddles recorded in his notes. Significantly, that information included that Mr Skrijel had suffered a nervous breakdown and was threatening to shoot police because of his dissatisfaction with the way they had dealt with the assault upon him at the Dartmoor football ground.

414. At the outset of the trial I ordered Mr Skrijel to surrender into the Court's custody the weapon which he said was the Cooey rifle that had been planted on him in 1992. During the course of the trial those who represent Sergeant Cook sought leave to have the weapon tested at the Victorian Forensic Science Institute by non-destructive testing, in an endeavour to establish whether it was indeed the same weapon as was the subject of the firearms charge and appears in the crime scene and fingerprint photographs. I acceded to that application, and on 23 April 2003 the Cooey was taken to the Institute and examined by Senior Constable Alan Franklyn Pringle (who is a highly qualified and experienced firearm and tool mark examiner attached to the Institute). Somewhat unexpectedly, Senior Constable Pringle was the next day called as a witness for Mr Skrijel.

417. Senior Constable Pringle swore that the weapon which he examined was a sawn-off .22 calibre Cooey brand of a model 64 type and that it had a serial number 022019 which was of a font and size and position for a firearm of that type. He said that he compared the weapon with the polaroid photograph of Mr Skrijel's thumb print which had been relied upon by the Crown at Mr Skrijel's criminal trial and that he was unable to make a positive identification, although he said that the weapon and the image in the photograph had the same serial number and it did not appear that the number on the weapon had been interfered with. He deposed that he could not identify anything else on the weapon which corresponded to the image in the photograph, but that he was unable to exclude the possibility that a mark shown on the surface pictured in the photograph (which in evidence was called "the worm") corresponded to a scratch on the fore-end of the stock of the weapon. Indeed he said that upon first comparison of the worm with the weapon his eye was naturally drawn to the scratch on the stock of the weapon and he noticed a rough correspondence between the worm and that scratch. He was also of the opinion that scratches and imperfections on the surface of the stock of the weapon would be likely to have changed over time as the weapon was handled, suggesting that in the past the scratch on the stock of the weapon may have corresponded more closely with the worm.

420. He was of the clear view that the object on which Mr Skrijel's thumb print is shown in the polaroid could not have been Mr Skrijel's Gevarm rifle:

"MR BERTHELSEN: Can you exclude the possibility that the fingerprint which appears to be on that 3D1 exhibit, the one you examined yesterday, could have come from that rifle which you believe to be a Gevarm? --- In its present condition I would exclude it, owing to the fact that the barrel doesn't appear in the photograph whereas the items on which this rests above the top horizontal, items appear to be supporting that."

424. It was suggested to him by Mr Berthelsen that if one were to rotate the Gevarm and take a photograph from a position close to the bottom of the stock, the barrel would not be visible in the photograph because it would be obscured by the stock. He agreed with that. Asked then, however, would he not accept that the polaroid may indeed show a thumb print on the Gevarm but taken from a position close to the bottom of the stock of the Gevarm, such that the barrel would not be visible, he said that he would not agree. In his opinion, if a photograph were taken from such an angle the image of the stock shown in the photograph would appear much more convex than it does:

"MR BERTHELSEN: If I held the camera and the firearm was held with the bottom facing me and I'm holding the camera in front of me and somehow I suspended the firearm with its bottom facing me, bottom of the wooden fore-end so you are looking at it from the bottom, would you see the barrel? --- I would see the appearance of a curvature on both the bottom and the top because from underneath the curvature, as you see, would be indicated by the bottom part appearing also on the top. If I continue to rotate it slightly, would there come a point where I would see the barrel? --- If you rotate it, there would become a point and at that point - I would say simply that the flat surface or the apparent flat surface would alter in curvature a lot more considerably if it was sufficient to conceal the barrel."

428. My conclusions based upon Sergeant Pringle's evidence are that the Cooey rifle which was tendered in evidence is more likely than not the Cooey rifle which was the subject of the firearms charge and is shown in the crime scene photographs and the fingerprint polaroid.

433. Unlike Mr Skrijel, the first defendant did not hesitate to give sworn evidence on his own behalf, and it seemed from the way in which he gave his evidence that there was nothing that he sought to hide. He had had an outstanding career as a policeman before retiring from law enforcement in 1993. In 1985 while serving in the rank of chief superintendent with the Victoria Police he had been seconded to the NCA and he had remained with the NCA until 1987 when he returned to the Victoria Police force as assistant commissioner, internal investigations. In 1989 he went back to the NCA and opened up what was to become the Adelaide office to investigate corruption amongst members of Parliament in South Australia and other senior officials in that State and following that assignment he was appointed to the position of Director of Operations and Director of Witness Protection for the Queensland Criminal Justice Commission. All in all he had spent the better part of his senior service in the investigation of police corruption and official corruption. He has been awarded the Australian Police Medal for distinguished service to the Australian Police Force.

436. Mr Mengler gave evidence that the investigation of Mr Skrijel's allegations was one of the first matters to be directed to his attention after he joined the NCA in February 1985. He deposed that he had entrusted the bulk of the investigation to Sergeant Iddles. Sergeant Iddles had also gone to the NCA on secondment from the Victoria Police Force - indeed he was selected by Mr Mengler from a number of applicants - and Mr Mengler said that he considered Sergeant Iddles to be a police officer of considerable ability and potential.

439. Mr Mengler recalled that there was a gap in time before much was done about Mr Skrijel's allegations. Mr Mengler was first instructed of the NCA's intention to investigate Mr Skrijel's allegations in or about February 1985. But it was not until June 1985 that he acquired the staff that he needed to proceed. Sergeant Iddles was seconded to the NCA early in June 1985 and on 12 June 1985 Mr Mengler instructed him to proceed with inquiries and to investigate Mr Skrijel's allegations thoroughly.

442. Mr Mengler monitored Sergeant Iddles over the ensuing months as he carried out his investigations. They included interviews of close to 70 people and the collection of some 15 sworn statements from those of the persons interviewed who were regarded as significant possible witnesses. Mr Mengler said that because Sergeant Iddles was an experienced investigator it was unnecessary and not to be expected that Mr Mengler be involved at all times with the day to day aspects of the investigation. But he consulted with Sergeant Iddles and gave advice and approvals as required.

445. Mr Mengler said that he participated in a conversation between Mr Skrijel and Deputy Commissioner Glare (of the Victoria Police) in June 1985, which was also attended by Sergeant Iddles and Detective Collins, and at that time Mr Glare expressed belief in what was being said by Mr Skrijel about the fracas which had occurred at the Dartmoor football ground and about the inadequacy of the police investigation of that incident. I infer that at that point Mr Skrijel was expressing enthusiasm about the investigation of his complaints. Mr Mengler said, however, that it was not very long after that occasion that Mr Skrijel's attitude changed. In an interview on 12 August 1985, Mr Skrijel told Mr Mengler that he no longer wished the NCA to continue with its investigations and that he was not prepared to assist them.

448. The interview of 12 August 1985 was recorded and has been transcribed and the transcription[17] is just as Mr Mengler described the interview. Time and again throughout the interview Mr Mengler is recorded attempting to persuade Mr Skrijel that his allegations will be investigated thoroughly and seeking from Mr Skrijel any further information or documents which may advance the investigation. And time and again Skrijel is recorded refusing to provide any of the further information which he said that he had and making plain that he does not want the investigation to go any further. The transcript shows to be unfounded Mr Skrijel's allegation that Mr Mengler threatened to get Mr Skrijel's head before Mr Skrijel got Mr Mengler's.

451. Mr Mengler told also of the role which he had played in the lead up to the conclusion of Sergeant Iddles' investigation and the execution of the search warrants at Mr Skrijel's Digby home. He explained that his role was in effect to liaise with the Victoria Police to obtain necessary personnel for the operation and to make the arrangements to get them to Digby, and he explained that he had travelled to Digby on 15 October 1985 and attended at the house and at the plantation in the forest as part of his coordination of the exercise. He also told of the way in which he learned that the explosives were subsequently discovered in the green plastic drum, after it had gone to the botanist for analysis of what was believed to be the cannabis in the drum, and of being told by Sergeant Cook that Sergeant Cook had found Mr Skrijel's fingerprints on objects found at the house and that the prints were of a quality which Sergeant Cook's superiors considered suitable for evidence.

454. Mr Mengler was cross examined at some length and it was insinuated a number of times and in a number of ways that Operation Southend was a pretence and a sham and that is why he had appointed Sergeant Iddles to see to the investigation. It was also put that Mr Mengler had turned Operation Southend from an investigation into drugs on the south coast into an exercise in getting even with Mr Skrijel for Mr Skrijel's public criticisms and the pamphlets which Mr Skrijel handed out between August and October 1985. It was put too that even after Mr Skrijel had been charged, Mr Mengler continued to seek to harm Mr Skrijel by making false reports that Mr Skrijel was a risk to police and posed a danger to NCA installations and may be a candidate for the Russell Street bombing. But Mr Mengler rejected each of those suggestions and I saw nothing in the terms of his responses or in his demeanour to make me doubt what he said.

457. Contrary to the plaintiff's suggestions, I see nothing odd or suspicious in the fact that a police officer of Mr Mengler's rank should have entrusted most of the day to day work of the investigation to a subordinate such as Sergeant Iddles. He had hand picked Sergeant Iddles for appointment to the NCA and he had confidence in his ability. That suggests that the operation was anything but a sham.

460. Contrary also to the plaintiff's suggestions, I do not find it surprising that Mr Mengler should have become more closely involved in the operation once the plantation had been discovered. I see nothing odd in the fact that he co-ordinated the surveillance and the execution of the search warrants. He was the senior officer based in Melbourne. Therefore it was logical for him to make arrangements with the Victoria Police for the provision of necessary personnel. He was the chief investigator. Therefore it was logical for him to put in an appearance at the plantation on 15 October 1985 and at the house at Digby on the same day. None of that conveys to me that he was out to "frame" Mr Skrijel as opposed to bringing a legitimate investigation to a conclusion.

463. Nor do I think it odd that Mr Mengler continued to maintain a co-ordination role for some time after 15 October 1985; that he received the information from Sergeant Cook on or about 25 October 1985 as to the identification of Mr Skrijel's fingerprints; that he received information from Inspector Len Timewell, the head of the Forensic Science Laboratories, of the discovery on or about 31 October 1985 of the explosives in the green plastic jar; or that after receiving that information he instructed Sergeant Iddles to advise Sergeant Carmady to re-interview and charge Mr Skrijel as appropriate.

466. Much was sought to be made of the notation which Mr Mengler recorded in an Australian National Crime Authority Intelligence Profile on 31 October 1985[18]: "Advise Carmady to interview (Skrijel) regarding it and charge him". It was said to show that Mr Mengler was so much in charge of the operation that it was he who determined that Mr Skrijel should be charged. That in turn was said to imply that Mr Mengler had choreographed the whole operation as a cover for the "frame up" of Mr Skrijel which was the object of the exercise. But Mr Mengler rejected those suggestions too and so do I. Mr Mengler's role was essentially limited. Ultimately, it was for the Victoria Police to decide whether Mr Skrijel should be charged with any and what offences. And as Mr Mengler explained of what he had written in the notation of 31 October 1985:

"that's a police jargon type comment, in other words, this is what we have got, go ahead and do what is appropriate."..." It isn't a direction per se, it is advice and all I'm telling Iddles in effect is, `Advise Carmady' and for him to do what is appropriate."

His evidence on that point accords with evidence of Sergeant Carmady (which was not challenged) that Sergeant Carmady made the decisions to charge Mr Skrijel with the initial charges on 15 October 1985 and with the further charges on 7 November 1985.

471. I also do not accept that Mr Mengler was motivated by malice in reporting to Vicpol and Southpol[19] that Mr Skrijel had threatened to shoot police or in reporting that Mr Skrijel might make an attack on an NCA installation, or in reporting that Mr Skrijel should be considered as a suspect for the Russell Street bombing. Mr Mengler was the senior criminal intelligence officer of the NCA. He had received information from his trusted subordinate, Sergeant Iddles, that Mr Skrijel had threatened to shoot police[20]. That information was grounded in what Mr Skrijel had himself said in interview with Sergeant Iddles on 13 June 1985 and in the information as to Mr Skrijel's mental condition which was given to Sergeant Iddles by Dr Kahn (who for eight years had been Skrijel's general practitioner). The suggestion that Mr Skrijel be considered as a threat to NCA installations was not made until after consultation with the NCA chairman, Mr Justice Stewart, and the suggestion that Mr Skrijel be considered as a possible suspect for the Russell Street bombing was made only after the explosives had been discovered in the green plastic drum, in sufficient quantity it was said to blow away a building, shortly before the Russell street bombing occurred. So far from Mr Mengler's reports suggesting malice, it seems to me that they are precisely the sort of reports one would expect of a senior police officer in Mr Mengler's position in the circumstances with which he was presented. Indeed there may have been reason to wonder about his professional judgment if he had not sent the reports.

474. A further suggestion made in cross examination and perhaps with greater clarity in final submissions was that Mr Mengler had in 1989 given false information to a research assistant gathering information for the "60 Minutes" television program. It was alleged that Mr Mengler had attended a conference in Sydney at which he had told the research assistant lies about Mr Skrijel or put an unsupportable "spin" on the facts in order to dissuade the research assistant from proceeding with an expose of the corruption and ineptitude of the NCA. Mr Mengler agreed that he had attended a conference in Sydney with the research assistant and that he had indeed given information to the research assistant concerning Mr Skrijel. And he acknowledged that his hope was that the research assistant would not go ahead with the program. But he denied that any of the information which he gave was false. To the contrary, he said, his objective was to apprise the research assistant of the falsity of allegations which Mr Skrijel had been making and to inform the research assistant of the truth of the matter. I believe him.

477. A number of questions in cross examination were directed to the embarrassment which it was alleged that Mr Skrijel's allegations and pamphlets would have caused Mr Mengler; the unspoken implication of these questions (as it was later explained in submissions) being that Mr Mengler had "motive" to get rid of Mr Skrijel. But that is as far as it ever went. Like a lot of the cross examination of a lot of the witnesses, the issue was left at the level of oblique insinuation without ever taking the witness to task. Despite my warnings to Mr Berthelsen that if he were going to ask me to make findings against the witness he had better put his allegations to the witness, he was not prepared to do so. The high point of the puttage was the following:

"But if Mr Skrijel's allegations are correct that he was framed would you be about to admit that here right now? --- Say that again, please? If he was framed, as he says, and the evidence against him was falsified, would you be about to say that right now, that in fact he was the principal subject of investigation? --- If I had been responsible for framing Mr Skrijel... If you had directed his frame-up? --- Or if I had directed or had some influence on others to do it, yes, I suppose in this situation I wouldn't want to admit it, but the truth of the matter is, it is garbage, it is untrue."

481. Doubtless Mr Mengler would not much have enjoyed the tone of the criticism made of him and his organisation in Mr Skrijel's pamphlets. Given the way in which Mr Skrijel had behaved at the interview of 12 August 1985, the pamphlets were grossly misleading. I also expect that like most people on the receiving end of criticism, Mr Mengler would have liked it to go away. Indeed he said as much. But it is a far thing from taking umbrage at unjustified criticism to a conclusion that a senior police officer in Mr Mengler's position would so disgrace his office as to order the fabrication of evidence. In this case I think it untenable.

484. Even more significantly, it was never put directly to Mr Mengler that he had fabricated any evidence or given instructions to any one else to do so. And when I asked Mr Berthelsen during the cross examination whether he was putting to Mr Mengler that he had corruptly covered up what he knew to be illicit activity by directing Sergeant Iddles as to ways in which he should investigate the matter, the only response I got was that: "the facts most certainly suggest an alternative view to the one put being put forward by the witness".

487. In my opinion none of the objective evidence is capable of supporting such a conclusion, and in so far as these things may be assessed on the basis of credit, the results are all in Mr Mengler's favour. Mr Mengler impressed me as a witness of truth and a policeman of high ability. He left me with the sense that he had done his professional best to have Mr Skrijel's allegations of corruption and drug trafficking investigated thoroughly and according to law; despite Mr Skrijel's behaviour.

491. Until his retirement in 1989 Henry Gregory Huggins was a senior sergeant of police and the officer in charge of the crime scene section of the state Forensic Science Laboratory. He had 26 years experience in the laboratory and the majority of that experience involved the searching of crime scenes and the collection of evidence and comparisons of various types. He deposed that on 15 October 1985 he attended at the Merino Police Station as part of a team at the request of Mr Mengler. He arrived at 10.30 am and after briefing he attended at the plantation at the Weecurra State Forest and at Mr Skrijel's Digby home. He was shown the statement[21] which he had made for the purposes of Mr Skrijel's prosecution and he swore that its contents were true. It records in detail Mr Huggins' observations of the plantation, in particular of 169 paint tins sunk into the ground set in rough rows about one metre apart and each filled with a mixture of soil, mulch and sheep manure, of which most had growing in them green plants of varying sizes, and at the southern end of the plantation, 19 similar plants sunk into the ground in plastic bags; pieces of tongue and groove board that had been split into sticks and a quantity of black baling twine; towards the western side of the clearing, what appeared to be a roughly made seed box consisting of four pieces of timber nailed to three short lengths of tongue and groove board; and other assorted items including cups, bags and an empty Viscount cigarette packet. It also records that at 6.45 pm on 15 October 1985 Mr Huggins attended at Mr Skrijel's Digby home; how he searched the utility vehicle parked in front of the garage and found a small quantity of green vegetable matter in a plastic shopping bag in the seat; that he searched the garage and found plastic sheets along the north wall and some timber stacked behind; that he recovered 18 pieces of tongue and groove board from the stack and another leaning against the wall and a number of nails from the dirt floor; and that from the bench he recovered pieces of firearm. He swore that his main job in going to Digby was to try and find something to link the premises to the plantation and that he had directed his search accordingly.

494. In cross examination Mr Huggins was shown the crime scene video tape which he agreed was taken before he arrived at the scene and he observed that it showed the tongue and groove board up against the wall of the shed as his statement recorded. He was shown then one of the crime scene photographs[22] which depicted the timber pulled away from the wall and spread out on the floor of the shed near to some motor car wheels, and he was asked how that could be so. He answered that it was his practice to have photographs taken for specific purposes and so if after taking photos of the crime scene in an undisturbed state, something of interest turned up as a result of moving things, he would have the photographer take a photo of whatever it was that had turned up. I believe his answer.

497. Mr Huggins was also cross examined about his discovery of the green plastic drum with the cannabis in it and as to how he removed the lid of the drum to allow the contents to be photographed; as to why it was that he had not taken the contents out before the contents were botanically examined; as to whether he did not appreciate that the drum was very heavy for something which was supposed to hold only cannabis; and to identify in the crime scene video the scales which were pictured in one of the crime scene still photographs[23] sitting on the bottom rung of a step ladder near to the open cardboard box containing marijuana which had been found in the shed. It was suggested that he had not played any role in endeavouring to track down the source of the industrial paint tins found at the plantation.

500. Mr Huggins explained how he had located the drum with the cannabis in it and had it photographed with its lid on and off; he demonstrated how he removed the lid by holding only the vertical surface of the circumference of the lid without making contact with the flat top surface of it; he said that he did not remove the contents of the drum because it was standard practice not to interfere with the contents of such an item before it had been inspected by a botanist; he said that until the contents were examined by the botanist and the drum was found to contain gelignite and detonators under the cannabis, he had no idea that it did so and he had tossed the drum around on a couple of occasions oblivious to the danger that rough handling of the detonators could have caused the gelignite to explode; he identified the scales on the bottom rung of the step ladder (which is clearly visible in the crime scene video)[24]; and he said that as far as he knew the sourcing of the paint tins would have been undertaken by the crime investigators.

503. It was not put to Mr Huggins that he was untruthful or mistaken in any of the answers which he gave. It was not put to him that he had fabricated any evidence or planted any evidence or given any false testimony as to what he had discovered or the circumstances in which he had discovered it. And it was not suggested that he had colluded in any way with Mr Mengler or Sergeant Cook or Sergeant Iddles or Sergeant Carmady, or any other policeman to "frame" Mr Skrijel.

506. I do not regard the absence of such an attack as the result of mistake or the product of Mr Berthelsen's inexperience. I warned him often of the need to put to a witness a conclusion adverse to that witness which he might later ask me to reach, and in point of fact he did so with some of the other witnesses. But even if the absence of any attack on Mr Huggins' credit and the apparent acceptance of the truth of his evidence were due wholly to mistake or inexperience, it would not alter my view of Mr Huggins' evidence.

509. Mr Huggins was an impressive witness. He had had a wealth of experience and he spoke with the authority of a man who knows what he is talking about. Based upon what he said in evidence he had done and upon the objective evidence of what he had done, it appears to me that his only interest was in the effective investigation of the crime scenes and that he undertook his investigation of the Skrijel crime scenes with detachment and objectivity. His organisation was separate and apart from the NCA and he knew nothing of Mr Skrijel or his criticism on the NCA. From all that can be seen he would not have had the least interest in facilitating improper conduct on the part of the NCA. It was not suggested that he stood to benefit in any way from improperly assisting the NCA and it was not suggested that he would have had any other motive for doing less than his professional best. I accept his evidence.

513. Ronald William Iddles is a Detective Senior Sergeant serving within the Homicide Squad of the Victoria Police. As has already been noted he was seconded from the Victoria Police to the NCA in June 1985. He remained with the NCA until November 1987 when he returned to the Victoria Police to serve with the Drug Squad.

516. Operation Southend was one of the first jobs assigned to him at the NCA. He gave evidence that he began the task by reading several file boxes of material held by the NCA which had come from the Costigan Royal Commission. He said that they included the complaints which had been made by Mr Skrijel and material which had been prepared by Sergeant Rogers for the Commission. He deposed that as he progressed through the material he noted the names of persons whom he thought it appropriate to interview, and other inquiries he thought it necessary to pursue, and as the list developed it became the draft of a plan which he later drew up for the conduct of the investigation. He submitted that plan to Mr Mengler for consideration by Minute of 7 June 1985[25] and it was approved by Mr Mengler by his instruction by Minute of 12 June 1985[26] to investigate Mr Skrijel's allegations thoroughly in accordance with the plan.

519. Sergeant Iddles deposed in detail to the investigation he had conducted. He explained that in a small town like Digby it was necessary to get in and interview as many as possible of the list of persons proposed to be interviewed, as quickly as possible, in order to form an initial assessment of the drug problem before word got around too much. In total he had interviewed 66 people between 13 June 1985 and 2 October 1985, and 20 of those interviews were conducted in the first three days.

522. Sergeant Iddles said that one of the first persons whom he chose to interview in course of the investigation was Norman Harry Matthews. Matthews was the private investigator who had once been retained by Mr Skrijel's solicitor to gather evidence in support of Mr Skrijel's claims of trade boycotts. But according to allegations made by Mr Skrijel, Matthews had tapes of conversations recorded in the course of his inquiries which confirmed the existence of police corruption and large scale drug trafficking in the Southend area. Sergeant Iddles said that he thought that that was enough to make Matthews a good place to start.

525. Sergeant Iddles deposed that he took possession of the tapes from Matthews, and there is no doubt that he did. He issued a receipt for the tapes to Matthews and the receipt is still in existence[27]. Sergeant Iddles also said that he listened to the tapes and that he had them transcribed (by one of the NCA's typists whose only name he can now remember was Maria), and that there was nothing on the tapes to suggest police corruption or anything in the way of large scale drug trafficking. But unfortunately the tapes and the transcription are said to have been lost, and the plaintiff says that is significant.

528. Sergeant Iddles deposed that he left the tapes in a file box marked "Southend" and the transcript with the rest of the Southend papers when he finished with the NCA in November 1987. He also said that Mr Rick MacIntyre, who was a legal officer with the NCA at the time, had had a copy of the transcript. But there was nothing to explain how something as important as the tapes and the transcript could later have been lost. And there was nothing as to the whereabouts of Mr MacIntyre or his copy of the transcript.

531. Sergeant Iddles did obtain from Matthews a signed statement dated 25 September 1985[28], in which Matthews declared that to the best of his recollection there was nothing in the tapes to indicate police corruption or large scale drug trafficking. Yet at first sight the terms of that statement appear odd. Sergeant Iddles' best recollection was that the tapes and the transcription were in existence and freely available when the statement was taken. But the statement speaks of best recollection and that implies that the tapes had already been lost. If the tapes were available, the only sort of statement that one might expect is one to which the transcript was attached and in which the accuracy of the transcript was verified. As it was, Matthews "best recollection" was inutile and inadmissible (as one would expect Sergeant Iddles to know).

534. One possibility suggested to Sergeant Iddles in the course of cross examination was that he had deliberately lost or destroyed the tapes because they did contain information implicating police in drug trafficking and, implicitly, that he coerced Matthews to provide the statement in the terms in which it was given to deter Matthews from later disclosing the truth. But Sergeant Iddles denied doing any such thing and I accept his denial. If Matthews were coerced to give a false statement there was nothing to stop Matthews reporting Sergeant Iddles as soon as he got the chance. As it was, Matthews later alleged on a commercial television program that there was drug running and police corruption; but he said nothing of the statement. Why Matthews should say one thing on one occasion and a different thing on another is something of a mystery. But Matthews did have convictions for offences involving dishonesty and the commercial television program was the sort of production that is sometimes prone to inaccuracy. The evidence in this proceeding shows it to have contained a number of assertions that were wrong.

537. Another possibility, which was suggested by counsel for the first defendant and which I think to be more likely, is that the statement was prepared by Sergeant Iddles on the basis of notes prepared early in his investigation, when Matthews did not have the tapes with him, and was later typed up and then signed in September 1985 just as Matthews handed over the tapes for the first time to Sergeant Iddles. The objective evidence accords with that version of events. Matthews was one of the first persons to be interviewed near to the start of the investigation, and Sergeant Iddles' notes of the interview are expressed in terms consistent with Matthews having spoken from recollection[29]. Sergeant Iddles drafted the statement later, and if follows fairly closely the form of the notes. And, in light of Sergeant Iddles' diary, it is likely that Sergeant Iddles did return to Matthews and have the statement signed by Matthews on the very day that Sergeant Iddles collected the tapes from Matthews. Given those circumstances, it is possible that Sergeant Iddles had not heard the tapes before the statement was signed, and that Matthews had not heard them recently before the statement was signed, and that is why the statement was expressed in terms of recollection. To the extent that Sergeant Iddles may have recalled the sequence of events differently, he was mistaken in his recollection. But bearing in mind the time since the events occurred, that is not surprising.

540. It was not suggested that Sergeant Iddles had ever been part of the drug trade on the south coast or that there was any other reason why he would have wished to cover up crime of that kind if he had found out about its existence. And logic suggests the contrary. At the time in question Sergeant Iddles had only just joined the NCA - then the premier Commonwealth/State anti corruption agency - to which he had elected to go and for which he had been selected on the basis of his reputation as an outstanding young policeman. The logical expectation is that he would have been eager to pursue any corrupt policeman of whose misdeeds he may have uncovered evidence. Just as importantly, it was not at any stage put to Sergeant Iddles that he had been instructed or encouraged by Mr Mengler to conceal or concoct any evidence.

543. Because of what I perceived to be the significance of that omission, I gave Mr Berthelsen a specific warning of the need to put his instructions to Sergeant Iddles on matters of that kind and, at Mr Berthelsen's request, I allowed him over night to consider what I had said and to consult with his instructing solicitor (who had been in court throughout the cross examination) as to what if anything should be put. But when court resumed the next morning (with the instructing solicitor again present throughout), Mr Berthelsen cross examined Sergeant Iddles for another hour without making any reference to what I had said and without putting to Sergeant Iddles anything to the effect that Mr Mengler had instructed or encouraged Sergeant Iddles to engage in the concealment or fabrication of evidence. The furthest the attack went was:

(a) an assertion that Sergeant Iddles had been selective in the persons whom he had interviewed;

(b) an assertion that the operation was planned (it was not said by whom) to charge Mr Skrijel to shut him up regardless of the evidence found;

(c) an assertion that Mr Skrijel was set up by "you people"(not identified); and

(d) an oblique insinuation that Sergeant Iddles had suggested to one of the persons interviewed, McClintock, what he should put in his statement (at which point I warned Mr Berthelsen that if he wanted to make a serious allegation of that kind he was bound to put it) after which the insinuation was changed to a question of whether the statement was taken by coercion.

549. Sergeant Iddles did appear at times to be very careful in the answers which he gave to questions. I have endeavoured to take that into account in assessing his credit. My conclusion, however, is that it is probably to be expected that a police officer of his seniority and experience should approach the giving of evidence with such apparent care. In the result I find no reason to doubt him. My assessment is that Sergeant Iddles was an honest and credible witness, and his testimony was substantially corroborated by the objective evidence. His evidence satisfies me that he carried out an extensive inquiry into Mr Skrijel's allegations with the aim of ascertaining the truth about the alleged drug trafficking and corruption; that the inquiries which he undertook were accurately recorded in his diary notes; and that the reports of his inquiries which he made to Mr Mengler were the truth as he understood it based upon his inquiries.

553. In October 1985 Mr Carmady was a serving as a sergeant in the Victoria Police Special Duties Squad. He gave evidence that he had been ordered by the director of his division to assist the NCA with surveillance at the plantation and the search of Mr Skrijel's Digby home. He deposed that he had obtained the two search warrants and that he had travelled to Digby and gone out to the plantation in the forest some days before the warrants were executed. He verified that the contents of the two statements[30] which he had made for the purposes of Mr Skrijel's prosecution were true. The first of those statements records that Sergeant Carmady led four other policemen, Senior Constables Francis, Wheeler and Wyles and Constable Walsh in the execution of the warrants on the morning of 15 October 1985; the way in which the search was conducted; the discovery of the shortened Cooey rifle; the discovery of the box of marijuana; the subsequent interview by Sergeant Carmady of Mr Skrijel; that Sergeant Carmady then took Mr Skrijel out to the plantation and interrogated him as to his knowledge of it; and that Sergeant Carmady, Senior Constable Francis and Constable Walsh later that morning conducted a formal interview of Mr Skrijel at the Casterton police station after which Skrijel was charged by Senior Constable Francis and Constable Walsh with unauthorised cultivation of cannabis, unauthorised possession of cannabis and being in possession of an unlawfully shortened firearm and unauthorised shortening of a firearm.

556. Sergeant Carmady's second statement records that on 7 November 1985 he conducted a further interview of Mr Skrijel at the Hamilton Police Station following the identification of the cannabis by the botanist and the discovery of the explosives and detonators beneath it. Subsequently Sergeant Carmady charged Mr Skrijel with trafficking in cannabis and being in possession of such a quantity of explosives as to give rise to a reasonable suspicion that he did not intend to use them for a lawful object.

559. Mr Carmady was asked in cross examination whether he now had any recollection of taking Mr Skrijel to the plantation on 15 October 1985 and he said that he did not. He was also asked whether he now recalled showing the seed box to Mr Skrijel on 15 October 1985 and he said that he did not. As already noted, Mr Carmady's first statement records that he did take Mr Skrijel back to the plantation and interrogate him there about it but it says nothing about the seed box.

562. It was put to Mr Carmady in cross examination that he had no more than extremely tenuous evidence for concluding that Mr Skrijel had been cultivating marijuana but went ahead and charged Mr Skrijel because he knew that falsified forensic evidence would later be supplied to link Mr Skrijel to the plantation. Mr Carmady responded that he considered that there was more than sufficient basis for charging Mr Skrijel on 15 October 1985 and that at the time he did not know that any forensic evidence would subsequently be forthcoming. It was further put to Mr Carmady that he had been directed by Sergeant Iddles to lay the further charges concerning the explosives (even though no such thing had been put to Sergeant Iddles). He denied that. His recollection was that he had been told by Sergeant Iddles of the discovery of the explosives and that he decided on the basis of that information to conduct the further interview.

565. Mr Carmady was tackled in cross examination as to why he had not shown the green plastic drum and its lid to Mr Skrijel during the course of the second interview on 7 November 1985 and he said that his recollection was that the drum was not available when the interview occurred. Asked did he not accept that the drum should have been shown given the critical significance of Mr Skrijel's palm print on the lid, Mr Carmady said that he knew nothing of the palm print at the time of the second interview and indeed he did not know Sergeant Cook.

568. It was not put to Mr Carmady in cross examination that he had falsified or planted any evidence. He was, however, asked in re examination if he had done so and he swore that he did not. It was not put to Mr Carmady in cross examination that he had told Mr Skrijel that he had been directed by his boss to charge Mr Skrijel, even though Mr Skrijel had alleged that in the course of his opening. That was asked in re examination and Mr Carmady swore that he did not. It was not put to Mr Carmady in cross examination that one of his men had threatened Mr Skrijel's daughter with a firearm, or that Mr Skrijel had told him that he had to get back to his house because his daughter was in danger, even though both of those things were alleged by Mr Skrijel in the course of opening. Mr Carmady swore in re exanimation that it was not so.

571. There is nothing in the objective evidence that causes doubt about the truth of the Mr Carmady's testimony. Certainly, he had to rely to a great extent on his statements made at the time. But given the time elapsed since the events in issue and that he has been out of the police force for some time, that is to be expected. And despite his lack of detailed recollection, his demeanour impressed me favourably. He gave the appearance of striving to recall as accurately as he could the detail of events, despite the fact that they occurred close to twenty years ago, and to provide his best recollection of them without hesitation and without regard to whether the consequences of his answers were favourable or unfavourable to the defendants. There were some discrepancies in his evidence, such as his lack of recollection of taking Mr Skrijel back to the plantation, and his inability to answer why one of the warrants appeared to have been issued in Essendon and the other in Melbourne; albeit by the same magistrate. But given the time which has elapsed since the events of October 1985 I do not find that surprising, and nothing was ever sought to be made of those points in cross examination. It was not put to Mr Carmady for example that he had falsely recorded in his statement that he had taken Mr Skrijel back to the plantation - indeed Mr Skrijel opened on the basis that that is what had happened - or that the different places of issue of the two search warrants implied that he had connived in or knew of a mission to plant false evidence to frame Mr Skrijel for offences he had not committed or, as I say, that he or his men had falsified or fabricated any evidence. The most that was suggested in cross examination by Mr Berthelsen was the following:

"I put it to you Mr Carmady the reason you didn't charge him on that day is because they hadn't figured out yet whether they were going to make this charge stick? --- That's totally incorrect."

And it was totally incorrect. Mr Skrijel was charged on 15 October 1985 by Senior Constable Francis and Constable Walsh and the documentary record is plain that he was bailed on his own recognisance that day, as he could have been only after he had been charged[31]. It was left to counsel for the third defendant to ask whether Mr Carmady had falsified any evidence, and he answered that he had not.

577. Mr Miller is a distinguished former Chief Commissioner of Police. He was called to give character evidence on behalf of Mr Mengler. That evidence was favourable. But I have excluded it from consideration. Logic suggests that it should be regarded as relevant to the question of whether Mr Mengler committed the crimes alleged, just as evidence of good character is relevant to the question of guilt in criminal proceedings[32]. But authority suggests that it is otherwise in civil proceedings[33].

581. The second defendant did not call any witnesses.

586. Like Mr Mengler, Sergeant Cook did not hesitate to give evidence on his own behalf. As he deposed, he had qualified as a fingerprint expert in June 1985 after five years in-service training and examination and upon qualification as an expert he had been promoted to the rank of sergeant. Thereafter he had worked in what was called the "main room" of the finger prints branch, among some 40 other expert sergeants, a bevy of senior sergeants, and a number of commissioned officers headed by Chief Inspector Bryan Norton. His recollection of the events of 15 October 1985 was limited, because as he said he has attended thousands of crime scenes since that time, but he had kept notes[34] and by reference to those he was able to recall that after receiving instructions from one of the senior sergeants he had gone first to the plantation where he had met Sergeant Huggins (who was in charge of the site), and after assisting Forensic Science investigators to load exhibits into a van for later examination at the Forensic Science Laboratory he had examined and powdered a number of items such as cigarette packets in a hut near by to the plantation. Later still he had gone to Mr Skrijel's Digby home where he had powdered the Cooey rifle, from which he had developed a print which he had photographed, and the Gevarm rifle, from which he had not been able to develop a print, and the green plastic drum, from the lid of which he had developed a print which he had also photographed. Later back at the Finger Prints Branch he had also developed prints from a piece of adhesive taped attached to plastic found at the plantation but he had not been able to identify those prints until 1996 when he had discovered that one of them was his own. He explained how in the period after 15 October 1985 he had identified the print taken from the stock of the Cooey as the left thumb print of Mr Skrijel and the palm print taken from the black plastic lid as Mr Skrijel's palm print. Those events were recorded in the statement[35] which he had made for the purposes of Mr Skrijel's prosecution in 1986 and he verified that statement.

589. Sergeant Cook also deposed to the events of 1997, when Mr Murdoch had been appointed by the Deputy Ombudsman to determine whether the polaroid picture of the thumb print had been forged. Sergeant Cook swore that he had shown to Mr Murdoch the one and only polaroid picture of the thumb print which he had identified on the stock of the Cooey rifle, and that it was the picture referred to in his statement[36] which had comprised the evidence at Mr Skrijel's criminal trial. He was asked in chief whether he could explain why he had described the stock to Mr Murdoch as a "wooden" stock, when in fact it was made largely of metal with wooden pistol grips, and he answered that at the time Mr Murdoch had asked him what the object was, he had not put his mind to the matter for twelve years and that he thought that he must have assumed that the stock was made of wood because by and large the stocks of rifles are made of wood.

592. It was put to him in cross examination (even though it had not been put to Mr Mengler) that he and Mr Mengler had had communications before the event in which Mr Mengler suggested to him that he should develop a fingerprint on the Gevarm rifle and then attribute that to the shortened Cooey rifle and that he should develop Mr Skrijel's palm print from the coffee canister lid and then attribute that to the lid of the green plastic drum. He denied it. He swore that he had had nothing to do with the NCA or Mr Mengler until 15 October 1985 and that he had met Mr Mengler for the first time and then only fleetingly at the plantation on 15 October 1985 when he introduced himself.

595. It was put to Sergeant Cook that in the last couple of years he had made up the written instructions which he said he received from the senior sergeant on 15 October 1985[37] in order to pretend that he had not been involved in the matter before receipt of those instructions. He denied it.

598. It was put to Sergeant Cook that he should have taken 35mm photographs of the thumb print on the Cooey rifle and of the palm print on the lid of the drum in order to corroborate photographically that the thumb print was on the Cooey and that the palm print was on the lid of the drum. And it was put to him that his failure to do so was in breach of standing orders or approved procedures and the result of an attempt to hide the fact that the prints evidence was fabricated. He swore that he did not have and was not issued with any camera apart from the fixed focus polaroid camera which he had used, and he swore that established procedures were not to take 35 mm shots of the type referred to. He deposed that he had followed established procedures by labelling the exhibits before photographing the prints on the exhibits and keeping notes of his work as he proceeded.

601. He was asked in cross examination to demonstrate in court how he had developed and photographed Mr Skrijel's thumb print on the stock of the Cooey rifle, by placing his own thumb print on the stock at the point where he said that Mr Skrijel's print had been located and powdering and photographing his thumb print. He did so, taking three different photographs at different light intensities in an endeavour to simulate the ambient light in the garage at Digby at or about 7.00pm on 15 October 1985, and the three photographs[38] were tendered in evidence. Allowing for the difference in ambient light, difference in flash intensity, deterioration in the surface of the stock since 1985, and for deterioration in the polaroid photograph of Mr Skrijel's print, the third of those photographs produced by Sergeant Cook exhibits a striking similarity to the photograph of Mr Skrijel's print.

604. It was put to Sergeant Cook that he had fabricated evidence by developing Mr Skrijel's thumb print from the wooden stock of the Gevarm rifle and swearing falsely that it had come from the Cooey rifle, and that was why he had made the mistake of describing the stock as "wooden" when he spoke to Mr Murdoch in 1997 and repeated that mistake in an affidavit[39] which he had sworn in opposition to his joinder as a defendant to the proceeding in 1998. He denied it. It was also put to Sergeant Cook that the lid from which he had developed Mr Skrijel's palm print was a press on lid, with a smooth non-threaded internal surface (as would be the case if it had come from the coffee canister) and he denied that .

607. He was asked again how he could have described the stock as "wooden" if indeed it came from the Cooey, and he gave the same answer as previously, and it was put to him that there was another photograph which he had not showed to Mr Murdoch, which went to explain why one of the six photographs[40] of fingerprints provided to the court was a duplicate of the other. He denied that too and explained that the reason for one of the photographs being a duplicate of the other was because it had been perceived desirable at the time of the criminal proceedings to have two shots of that one print printed with different exposures. There was he said only ever one polaroid photograph of the thumb print which he had developed on the stock of the Cooey in the shed on 15 October 1985. The photograph of which there was a duplicate had nothing to do with the Cooey. It was a photograph of one of the three unidentified prints taken from the adhesive tape found at the plantation.

610. It was put to Sergeant Cook that he had committed perjury at Mr Skrijel's criminal trial by expressing the opinion on oath that the lid of the black plastic drum could not be removed without smudging the palm print (and thus impliedly that it was more likely that it must have been Mr Skrijel that put the cannabis and explosives in the drum). The basis of that allegation was said to be that Sergeant Huggins had in fact removed the lid at the scene at the time and yet the print taken from the lid was not smudged. Sergeant Cook answered that he did not know whether Sergeant Huggins had removed the lid before or after it was dusted, and that the opinion which he expressed at the time was the opinion which he honestly held at the time.

613. I see no reason to doubt the evidence given by Sergeant Cook. All of the objective evidence is consistent with it. So too is Mr Huggins' evidence, which in relevant respects was not challenged; Mr Carmady's evidence, which in relevant respects was also not challenged; and Mr Mengler's evidence, which in relevant respects was also not challenged. In particular it will be recalled that it was never put to Mr Mengler that he had fabricated or asked anyone else to fabricate evidence against Mr Skrijel. The only inconsistency is Sergeant Cook's description of the Cooey stock as "wooden" when he spoke to Mr Murdoch in 1997 and the similar description employed in Sergeant Cook's affidavit in opposition to joinder. I do not think that to be significant.

616. Sergeant Cook had not described the stock as wooden in his contemporaneous notes[41] of examination or in any other contemporaneous record or in the statement which he made for the purposes of the criminal proceedings. Furthermore the firearms examiner, Barry, who gave evidence at the criminal trial deposed at the criminal trial that the stock was made of metal with the only wood being the two wooden pistol grips. If Sergeant Cook had really set out to deceive Mr Murdoch, the first thing he would be likely to have done would be to go back to the contemporaneous documentation and repeat what had previously been said. The fact that he did not do so suggests that he had nothing to hide.

619. There are indeed a number of possible explanations for the inconsistency, of which the explanation suggested by Sergeant Cook is one. Another is that the stock was described as made of wood because of the wooden pistol grips. A third is that Sergeant Cook did not describe it to Mr Murdoch as "wooden", even though he now accepts that he my have done; that Mr Murdoch assumed it was wooden and honestly although incorrectly attributed that description to Sergeant Cook; and that having seen it so described in Mr Murdoch's statutory declaration, Sergeant Cook was influenced so to describe it in his subsequent affidavit. The point of real significance, however, as it seems to me, is that so many years elapsed between the criminal trial and Mr Murdoch's examination in 1997 that it is not at all surprising that Sergeant Cook should have made a mistake in recollection, however that came about, and thereafter persisted in the mistake until the error was identified.

* There was only ever one polaroid photograph taken of the barrel casing (sometimes known as "the stock") of the Cooey rifle. It is exhibit 3 D1.

* That photograph is the photograph which Sergeant Cook showed to Mr Murdoch for examination in 1997 during the course of the Deputy Ombudsman's investigation.

* By the time of that examination Sergeant Cook had forgotten what the barrel casing looked like and assumed or incorrectly thought that he recalled it as made of wood. That is most probably the reason that he describe it to Mr Murdoch as made of wood, if he did.

* When Sergeant Cook swore his affidavit in opposition to the application for his joinder as a defendant to the proceeding, he had convinced himself that the barrel casing was made of wood and he so deposed in his affidavit. It is possible that he was influenced so to describe it by the description of the stock, as "wooden", in one of the statutory declarations of Mr Murdoch that called to be answered in the affidavit.

* The photograph which Mr Murdoch viewed in 1998 at the office of the Victoria Government Solicitor was exactly the same as the photograph which Sergeant Cook had showed to Mr Murdoch at the time of the 1997 examination.

* Sergeant Cook did not enter into any arrangement with Mr Mengler or any one else to fabricate fingerprint evidence and he did not fabricate any finger print evidence.

632. Trevor Roddick now carries on a photography business in another state. He was previously a senior constable of police and a crime scene photographer attached to the Victorian Forensic Science Laboratory. He attended on 15 October 1985 in accordance with a direction given to him by the Laboratory. He took the crime scene photographs at the plantation and at Mr Skrijel's Digby home. In his evidence he explained the procedures which were followed to capture the crime scene on film, beginning with the outside and then moving inside starting at each of the corners and working in so that everything was covered. He explained that many shots were taken from which a complete set of contact prints was made and then that later a selection was made from amongst the many in order to tender at court.

635. He said that the practice was to photograph first the scene in an undisturbed state and then to go in with Sergeant Huggins as Sergeant Huggins searched the crime scene and take further shots as directed by Sergeant Huggins. He identified the crime scene photographs which he had taken[42]; he deposed that they included photographs of the green plastic drum both with lid on and lid off; and he confirmed that some of those pictures of the drum with lid on and off are reproduced in enlarged form[43]. He also deposed that photographs which Mr Skrijel had sought to tender in the course of opening[44] were not crime scene photographs which he had taken. Thus, contrary to Mr Skrijel's assertions in the course of opening, there were crime scene photographs taken of the drum with lid on as well as off; they show a lid which is of a design consistent with the design of the lid shown in the polaroid photograph of Mr Skrijel's palm print (on which the Crown relied at his trial and which is the right size for the drum); and the lid on the drum which Mr Skrijel handed up in the course of opening[45] is not the lid which appears in the crime scene photographs taken by Mr Roddick or the photograph of Mr Skrijel's palm print taken by Sergeant Cook.

638. Mr Roddick was cross examined about the circumstances in which he took the crime scene photographs of the Gevarm and Cooey rifles and could not recall if he had taken them on his own initiative or because directed to do so by Sergeant Huggins. But he said his practice was to act in accordance with the forensic science directive to take "anything" (by which I took him to mean everything), and in re examination he identified a number of other photographs he had taken of both weapons sitting on the bench in the shed[46], which to my mind leave little doubt that they were taken as part of a systematic photographic sweep of the crime scene in its undisturbed state.

641. He was also asked in cross examination whether he could explain why his crime scene shots showed the tongue and groove board on the floor near to the motor car wheels whereas the video of the crime scene did not show it in that position. He said that he did not know and could not speculate. Although his recollection was that he would have taken his shots of the crime scene in an undisturbed state before the video was taken, he said that he also would have taken more shots later of specific things as discovered and directed by Sergeant Huggins, after the video had been taken and the crime scene was disturbed, and he could not say now whether the shots which he had taken of the timber on the floor near to the motor car wheels were taken before or after the crime scene was disturbed.

644. Mr Roddick was also cross examined about the possibility of using a computer digitally to enhance a crime scene photograph of the lid of the drum so as to make it appear that it had serrations or ridges on the vertical surface of its circumference when previously it did not, and he said that with recent advances in software and reduction in its price it would now be possible to take a crime scene photograph and so enhance it. But he said that until very recently that would have been a practical impossibility.

647. It was not put to Mr Roddick or otherwise suggested in cross examination that he had been involved in or had any knowledge of or reason to suspect an attempt to plant or fabricate evidence at the plantation or at Mr Skrijel's Digby home or to falsify or manipulate photographs to achieve the same result.

654. Until his retirement in 1987 Bryan James Norton was a Chief Inspector of Police in charge of the Finger Prints Branch. He explained that the Branch was part of the Crime Department in X District, and that the District was under the command of a Chief Superintendent to whom Mr Norton was answerable. Mr Norton confirmed that the command structure of the Finger Prints Branch was as Sergeant Cook had deposed and confirmed that in all probability Sergeant Cook's instructions to attend at the State Forrest and Digby on 15 October 1985 were given to Sergeant Cook by one of the senior sergeants, as a matter of routine and random allocation, as Sergeant Cook had also deposed. Mr Norton demonstrated by reference to the message form on which Sergeant Cook's instructions had been recorded on 15 October 1985[47] that the request for the provision of a fingerprint expert had been made in accordance with protocol by Chief Superintendent Mengler to the Chief Superintendent of X Division, thus corroborating evidence given by Mr Mengler as to how he procured the services of Sergeant Cook, and then delegated down, most probably through Mr Norton's second in command, Inspector Todd, to one or other of the senior sergeants before direction to Sergeant Cook.

657. Mr Norton explained in detail the protocols that had applied for the verification of identification of finger prints and showed that they had been followed in this case. Identifications had to be verified by not less than two experts in addition to the expert who first identified the print. Identifications to be used in court had to exhibit not less than 12 characteristics and had to be passed as appropriate to go to court by Mr Norton or his second in command, Inspector Todd. He demonstrated that the identifications in this case had been approved as suitable to go to court by Inspector Todd. Mr Norton also verified that the techniques and procedures for the development and photography of fingerprints were as Sergeant Cook had deposed and that the only camera issued to fingerprint experts was a fixed focus polaroid camera as Sergeant Cook had explained.

660. He was asked in cross examination would he not accept that it would be prudent and to be expected that a fingerprints expert take a photograph or at least have the crime scene photographer take a photograph of a weapon on which a print was found, in a way which would not leave doubt as to whether the print was on the weapon. He answered that it depended on the circumstances but if, as was the case here, the weapon was illegal and therefore to be seized, he would not expect to see such a photograph taken. Photographs of that kind, in his opinion, were for cases when the exhibit was not to be seized and hence there could be uncertainty of identity at a later date. He was pressed repeatedly in cross examination to say that Sergeant Cook should have taken some such a picture in order to corroborate the truth of the assertion that the print on the Cooey had come from the Cooey and that the palm print on the lid of the drum had come from the lid of the drum. Mr Norton rejected each such suggestion. In his opinion it was clear that the responsibility for identification lay with the crime investigator, in this case Mr Huggins, and the responsibility of the fingerprints expert began and ended in a case of this kind with developing prints from the exhibits identified for him by the crime scene investigator and then identifying the prints.

663. I accept all of Mr Norton's evidence. It was convincingly given, it accords with the objective evidence and it accords with common sense.

667. Melissa Ann Tan is a forensic officer at the level of supervisor in the photographic processing unit of the Victoria Forensic Science Centre. She was called, as I would gather, to rebut the suggestion of Mr Berthelsen that the crime scene photographs have of late been modified digitally to change the appearance of the lid of the drum from which the palm print was developed. Ms Tan swore that she had been asked earlier this year to make some enlargements[48] of the original set of the contact prints of the crime scene photographs taken by Mr Roddick[49] and she had done that by taking an individual 35mm photograph of each print in the original set of contact prints and enlarging each to produce the set of enlargements. She swore that in so doing she used a conventional 35mm camera and film and conventional photographic enlargement processes, and that she did not use any digital technology. Thus as the evidence stood at the end of her examination in chief, the suggestion of digital manipulation was shown to be groundless.

670. The cross examination of Ms Tan was perfunctory. At its conclusion I pointed out to Mr Berthelsen that this was his opportunity to impeach Ms Tan's testimony if he wished to do so. He gave a lengthy response which suggested that he may not have understood what I had said and therefore I repeated that this was his opportunity to ask Ms Tan about the photographs and I told him that he was at liberty to put whatever questions to her he wished that were relevant to the issues. At that point Mr Berthelsen consulted with his two instructing solicitors, Mr Edwards and Mr Finlayson, who had been in court throughout the cross examination, and after taking some time to consider the matter, Mr Berthelsen announced that he had no more questions of the witness. I conclude that her evidence was not challenged. I accept it accordingly.

674. Gregory Hugh Salter was called to give evidence of the video taping of the crime scenes at the plantation and at Mr Skrijel's Digby house which he had undertaken on 15 October 1985. At that date he had been a constable of police attached to the video operations unit at the audio visual division of Victoria Police. He deposed that his duties had consisted of using broadcast quality video equipment to videotape crime scenes, interviews and re-enactments and otherwise gathering evidence on videotape. He recalled attending at the forest on 15 October 1985 and at Mr Skrijel's Digby home and he said that he had video taped both crime scenes before they were disturbed by investigating police. He was asked whether he had videotaped the scenes before or after they had been photographed by Mr Roddick. He answered that he could not recall. He said that it could have been one or the other but in either event he and Roddick would both have photographed both scenes before they were disturbed.

677. His evidence was consistent with that given by Mr Roddick and by Mr Huggins and in the circumstances I do not see any reason to doubt it. The video which was taken by Mr Salter is in evidence[50]and, like the still photographs of the crime scenes taken by Mr Roddick[51], it shows the Gevarm and the Cooey rifles lying together on the bench in the garage where Mr Huggins said that he found them.

681. The fourth defendant did not call any witnesses.

685. It is not practical to make reference to all of the evidence. The bulk of documentary material and the detail of the testimony is too great. What I have said about it already is directed to the most important aspects of it. Based upon what I have said about the evidence, I make the following findings of fact:

(1) On 28 November 1984 a Special Authority Meeting of the NCA resolved that RCA0016 South End ("Operation Southend") be adopted on the basis that NCA investigators would interview the informant and report further to the Authority on the matter[52].

(2) In December 1984 Sergeant Rogers presented a report of the preliminary investigation which had been undertaken to that point. It suggested that there may be a drug problem in Southend but that further inquiries needed to be undertaken over a longer period of time if the matter were to be thoroughly investigated[53].

(3) On 21 January 1985 Mr Buxton reported to the members of the NCA that extensive local investigations would be required in order to take the matter any further. He suggested that there must be a good chance that if a covert investigation team with drug and surveillance experience were set up in the area, some positive results could be obtained within a matter of six to eight weeks of beginning[54].

(4) Mr Mengler joined the NCA on 1 February 1985 as its first chief investigator and one of the first matters assigned to him in that capacity was Operation Southend. At that time he knew nothing of Mr Skrijel or his complaints and he had no interest in them other than as an officer of the NCA.

(5) When the matter was first assigned to Mr Mengler he did not have adequate staff to pursue the operation and consequently not a great deal was done about it until about June 1985.

(6) In June 1985 Sergeant Iddles joined the NCA as an investigator and one of the first jobs assigned to him was to read the materials relating to Operation Southend and to recommend a course of investigation to Mr Mengler.

(7) On 7 June 1985 Sergeant Iddles wrote to Mr Mengler listing 14 activities which he considered needed to be undertaken as part of the investigation at Southend and on 12 June 1985 Mr Mengler wrote to Sergeant Iddles to proceed with the inquiry as recommended and thoroughly to investigate Mr Skrijel's complaints and the extent of drug trafficking on the south coast of Australia between Melbourne and Adelaide in country districts[55].

(8) It was not part of Mr Mengler's duty to be involved in all of the day to day aspects of Sergeant Iddles investigation. Sergeant Iddles was an experienced Victoria Police sergeant and Mr Mengler's role was to a large extent to monitor Sergeant Iddles' work.

(9) Between about 13 June 1985 and October 1985 Sergeant Iddles interviewed almost 70 people in the Southend and Digby areas as well as police at Millicent, Mt Gambier and in Adelaide and he obtained signed statements from 15 of the persons whom he interviewed. In the course of his inquiries he received information which caused him to doubt that there was any major drug problem in the Southend area although he considered that there was some drug activity including cannabis and cocaine[56].

(10) Sergeant Iddles also received information from Trembarth and Graham Watson that Mr Skrijel had approached them to grow cannabis on his behalf and whilst he doubted that information to begin with, when he later learned of a sighting of Mr Skrijel within the Weecurra State Forest, he was more inclined to consider that there may be substance in it[57].

(11) After speaking to Trembarth and Watson, Sergeant Iddles learned that William Lane had some time previously reported to local police that he had sighted Mr Skrijel in the Weecurra State Forest in company with two other men and acting suspiciously[58].

(12) On or about 7 October 1985 Sergeant Iddles spoke to Mr Mengler by telephone and told him that he was going to see Lane about the report[59].

(13) On 8 October 1985, after a conversation with Lane concerning the report, Sergeant Iddles and three other police officers were taken by Lane to a cannabis plantation in the Weecurra State Forest. They found a cleared area and a number of used industrial sized paint drums sunk into the ground and containing 124 marijuana plants[60].

(14) On locating the plantation Sergeant Iddles again spoke by telephone to Mr Mengler and recommended that surveillance be set up and maintained at the plantation. Mr Mengler accepted that recommendation and took steps necessary to involve the Victoria Police Special Duties Squad by requesting their assistance[61].

(15) The Victoria Police Special Duties Squad assigned to the job a team of personnel headed by Sergeant Carmady.

(16) On or about 8 October 1985 Sergeant Carmady obtained from a Magistrate in Melbourne two warrants to search Skrijel's Digby home, one for paint tins of the type found at the plantation and one for cannabis[62]. He did so on the basis of information supplied to him by telephone by Sergeant Iddles concerning the information obtained from Trembarth and Watson and Lane and as to what Sergeant Iddles had observed at the plantation. The search warrants were not executed at that stage. Surveillance was maintained on the plantation until 15 October 1985, but without result.

(17) On or about 14 October 1985 Mr Mengler sought and obtained approval from higher authority within the NCA for the execution of the search warrants issued on 8 October 1985. He also sought the assistance of the Victoria Police forensic science crime scene investigators and finger print experts by requesting the Chief Superintendent of X Division of the Victoria Police to send a crime scene investigator and a fingerprints expert to site.

(18) On the morning of 15 October 1985 Sergeant Carmady attended at Mr Skrijel's Digby home at 7.45 am in company with Senior Constables Francis, and Wheeler and Wyles and Constable Walsh. What occurred thereafter is set out accurately in the statement of Sergeant Carmady[63]. As is recorded in the statement, Senior Constable Wheeler discovered in the garage the parts of a disassembled firearm later determined to be an unlawfully shortened Cooey .22 rifle bearing registration number 022019, and discovered in a shed adjoining the garage a cardboard box containing vegetable matter which was later determined to be marijuana .

(19) Mr Mengler did not cause or procure the Cooey rifle to be planted in the garage or the box of cannabis to be planted in the shed, and there is not sufficient evidence to conclude that any one other than Mr Skrijel caused or procured those items to be placed where they were found.

(20) Following discovery of the Cooey rifle and the box of cannabis, Sergeant Carmady took Mr Skrijel to the plantation where he interrogated Mr Skrijel and obtained the responses which are recorded in Sergeant Carmady's Statement.

(21) At the conclusion of that interrogation, Sergeant Carmady took Mr Skrijel to the Casterton Police Station and interviewed him formally in company with Senior Constable Francis and Constable Walsh. The substance of the interview, including Mr Skrijel's responses to the questions asked of him is accurately recorded in Sergeant Carmady's statement.

(22) Based upon discovery of the box of cannabis and the Cooey rifle; upon the information gathered by Sergeant Iddles in the course of his investigation and disclosed by Sergeant Iddles to Sergeant Carmady; and upon Mr Skrijel's responses to the questions asked of him, Sergeant Carmady determined that Mr Skrijel should be charged with the cultivation and possession of cannabis and with unlawfully shortening and being in possession of the shortened Cooey rifle, and he was so charged upon informations laid by Senior Constable Francis and Constable Walsh and released on bail at approximately 11.07 am.

(23) At the time at which the informations were laid, Sergeant Carmady honestly believed that there was reasonable and probable cause to charge Mr Skrijel with the offences specified in the informations.

(24) Later on 15 October 1985 Senior Constable Roddick photographed the plantation and the garage and shed at Mr Skrijel's Digby home, before those scenes were disturbed, in the manner which is described in Mr Roddick's statement of 15 April 1986[64].

(25) Either before or after Senior Constable Roddick photographed the plantation and garage and shed but in any event before any of those scenes was disturbed, Constable Salter video-taped the plantation and the garage and the shed[65].

(26) Sometime after 10.30 am on 15 October 1985 Sergeant Huggins attended at the plantation and conducted a search of the plantation as is recorded in his statement of 28 February 1986[66]. Sergeant Huggins had been randomly assigned to the job pursuant to Mr Mengler's request to the Chief Superintendent of X Division that a crime scene investigator attend at site. As is recorded in Sergeant Huggins' statement, Sergeant Huggins discovered at the plantation a wooden seed box made in part of tongue and groove pine board.

(27) Mr Mengler did not cause or procure the wooden seed box to be left at the plantation and there is not sufficient evidence to conclude that any one apart from Mr Skrijel caused or procured the wooden seed box to be left at the plantation.

(28) At approximately 2.20pm Sergeant Cook attended at the plantation. He had been randomly assigned to the job pursuant to Mr Mengler's request of the Chief Superintendent of X Division that a finger prints expert attend at site. Sergeant Cook dusted various items for fingerprints as is recorded in his statement of 6 February 1985[67].

(29) At approximately 6.40 pm Sergeant Cook arrived at Mr Skrijel's Digby home to check for fingerprints as directed by Sergeant Huggins and his crime scene investigators.

(30) At approximately 6.45pm Sergeant Huggins attended at Mr Skrijel's Digby home and conducted a search as is recorded in Sergeant Huggins statement.

(31) As is so recorded, Sergeant Huggins first searched within a Holden utility registration number UNE 778 which sat in front of the garage at the rear of the house and found a small quantity of green vegetable matter (later determined to be cannabis) in a plastic shopping bag[68].

(32) Mr Mengler did not cause or procure the cannabis to be placed in the front seat of the utility and there is not sufficient evidence to conclude that anyone apart from Mr Skrijel caused or procured the cannabis to be placed in the utility.

(33) As is also recorded in Sergeant Huggins' statement, he next searched within the garage and found plastic sheets along the north wall and some timber stacked behind; he recovered 19 pieces of the tongue and groove board and a number of nails from the dirt floor; and he determined that the cut and grain of one of the pieces of board matched some of the board from which had been constructed the seed box found at the plantation.

(34) Mr Mengler did not cause or procure the tongue and groove board to be placed in the garage and there is not sufficient evidence to conclude that anyone apart from Mr Skrijel caused or procured the tongue and groove board to be placed in the garage.

(35) As is also recorded in Sergeant Huggins' statement, while searching within the garage he observed on the work bench the pieces of shortened Cooey firearm which lay dismantled on the bench and next to them on the bench a licensed Gevarm .22 rifle belonging to Mr Skrijel.

(36) Mr Mengler did not cause or procure the Gevarm rifle to be taken from the house and placed on the bench in the garage and there is not sufficient evidence to conclude that anyone apart from Mr Skrijel placed the Gevarm rifle in the garage.

(37) As is also recorded in Sergeant Huggins' statement, in the course of his search of the inner shed, he discovered a green plastic drum with a black plastic screw top lid. Before removing the lid he had it photographed by Constable Roddick; after if had been so photographed, Sergeant Huggins removed the lid, holding the lid only by the vertical surface of the circumference, so as not to touch the top horizontal surface of the lid. He found within what appeared to be green vegetable matter (later determined to be cannabis) and he directed Senior Constable Roddick to take a photograph of the drum with the lid removed, showing the vegetable matter within, which Senior Constable Roddick did.

(38) The decision to photograph the drum with lid removed was made by Sergeant Huggins and once the lid had been removed Sergeant Huggins believed that the drum was full of cannabis.

(39) Mr Mengler did not cause or procure the cannabis to be placed in the drum and there is not sufficient evidence to conclude that any one apart from Mr Skrijel caused or procured the cannabis to be placed in the drum.

(40) In the course of the search, Sergeant Huggins also found a set of scales sitting on the bottom rung of a step ladder standing near to the cardboard box of marijuana which had been discovered that morning and he found green vegetable matter on the pan of the scales[69].

(41) Mr Mengler did not cause or procure the scales to be placed on the step ladder or the green vegetable matter to be placed in the pan of the scales and there is not sufficient evidence to conclude that any one apart from Mr Skrijel caused or procured the scales to be placed on the step ladder or the green vegetable matter to be placed in the pan of the scales.

(42) At approximately 6.45 pm Sergeant Cook entered the garage at Mr Skrijel's Digby home with Sergeant Huggins and dusted both the Cooey rifle and the Gevarm rifle for fingerprints, as is recorded in Sergeant Cook's statement. As is also recorded, Sergeant Cook observed and developed a latent left thumb print on the fore-end of the stock of the Cooey rifle and he photographed that print using a police Finger Prints Branch fixed focus polaroid camera specially adapted for the taking of pictures of fingerprints. He did not observe or develop any print on the Gevarm rifle and he did not photograph the Gevarm rifle.

(43) At approximately 8.20pm Sergeant Cook entered the inner shed of the garage and as is recorded in Sergeant Cook's statement, he dusted the black plastic lid of the green plastic drum which had been discovered by Sergeant Huggins. He developed a palm print on the horizontal top surface of the lid, and he photographed that print using the specially adapted polaroid camera to which I have already referred.

(44) The specially adapted polaroid camera was the only camera which Sergeant Cook took to the site and it was the only camera which he used at the site. He was not issued with any other camera and under the system of operation within the Finger Prints Branch at the time, it was not expected that he would use any other camera.

(45) Between 15 and 25 October 1985 Sergeant Cook identified the left thumb print which he had developed and photographed on the stock of the Cooey rifle as the left thumb print of Mr Skrijel.

(46) Between 15 and 25 October 1985 Sergeant Cook identified the palm print which he had developed and photographed on the black plastic lid of the green plastic drum as the palm print of Mr Skrijel.

(47) On 25 October 1985 Sergeant Cook informed Mr Mengler of the identification of the prints and that Sergeant Cook's superior officers within the Finger Prints Branch were of the opinion that both prints were of a quality that made them suitable for evidence in court (which was the fact).

(48) Sergeant Cook did not fabricate or misrepresent any of the finger print evidence which he assembled. In particular:

* There was only ever one polaroid photograph[70] taken of the barrel casing (sometimes known as "the stock") of the Cooey rifle

* That photograph is the photograph which Sergeant Cook showed to Mr Murdoch for examination in 1997 during the course of the Deputy Ombudsman's investigation.

* By the time of that investigation Sergeant Cook had forgotten the appearance of the barrel casing and incorrectly recalled it as made of wood. He may have described it as such to Mr Murdoch for that reason.

* When Sergeant Cook swore his affidavit in opposition to the application for his joinder as a defendant to the proceeding in 1998, he had convinced himself that the barrel casing was made of wood and thus he deposed in his affidavit that it was "wooden". It is possible that he was influenced so to describe it by the description of the stock, as "wooden", in one of the statutory declarations of Mr Murdoch.

* The photograph which Mr Murdoch viewed in 1998 at the office of the Victoria Government Solicitor was the same photograph which Sergeant Cook had showed to Mr Murdoch at the time of the 1997 investigation.

* Sergeant Cook did not enter into any arrangement with Mr Mengler or any one else to fabricate fingerprint evidence.

* The thumb print which Sergeant Cook developed on the barrel casing (stock) of the Cooey rifle and which he photographed in Exhibit 3D1 was put there by Mr Skrijel when handling the weapon before it was first seen by Sergeant Cook.

* The palm print which Sergeant Cook developed on the black plastic lid of the green plastic drum and photographed[71] was put there by the Mr Skrijel when handling the drum before it was first seen by Sergeant Cook.

(49) On 31 October 1985 the contents of the green plastic drum were removed for botanical testing of the green vegetable matter within and it was discovered for the first time that the drum contained not only the green vegetable matter but also 26 sticks of gelignite and 118 detonators.

(50) Mr Mengler did not cause or procure the gelignite or detonators to be placed in the green plastic drum and there is not sufficient evidence to conclude that any one apart from Mr Skrijel placed the gelignite and detonators in the drum.

(51) On 7 November 1985 Sergeant Carmady conducted a further interview of Mr Skrijel at the Hamilton Police Station, after being advised that the gelignite and detonators had been discovered within the green plastic drum. The content of that interview is as recorded in Mr Carmady's second statement, which is dated 7 November 1985[72]. At the conclusion of the further interview, Mr Skrijel was charged with the further offences of trafficking in cannabis and possession of explosives in a suspicious quantity.

(52) Sergeant Carmady honestly believed that he had reasonable and probable cause to lay the informations for the further charges.

(53) There is no evidence that Mr Mengler participated in the compilation of the hand up brief or in any decision as to which evidence to include or withhold from the brief. Sergeant Cook did not withhold any evidence from the brief or otherwise. The existence of the three unidentified finger prints which were found at the plantation was disclosed by Sergeant Cook in writing to the Crown prosecutor[73] and was disclosed by the prosecutor to the court at the committal hearing. It was thus known to Mr Skrijel's legal advisers at the time of his trial.

(54) There is no evidence that Mr Mengler participated in the preparation of the case for trial. There is also no evidence that he caused the prosecutor to put to or to withhold from the jury any thing concerning the question of whether Mr Skrijel's allegations of retribution were factually based. Mr Mengler was called by the Crown to give evidence at the trial at the request of counsel for Mr Skrijel. Otherwise he would not have given evidence or attended the trial.

(55) Mr Mengler did not act maliciously in reporting Mr Skrijel as a suspect for the Russell Street bombing. He made the report in pursuance of his duty as a senior officer of the NCA on the basis of the information which had been reported to him by Sergeant Iddles[74], and that information was accurate. Mr Skrijel had made threats that he would take the law into his own hands if he did not get his way. Mr Mengler did not act maliciously in reporting that Mr Skrijel may be planning an attack on an NCA office. Mr Mengler acted in accordance with a request made of him by the Chairman of NCA, and equally on the basis of the information which had been reported to him by Sergeant Iddles, which was accurate.

(56) Mr Mengler did not cause Mr Skrijel's counsel to enter a plea of guilty to the firearms charge contrary to Mr Skrijel's instructions or at all. Mr Mengler did not have anything to do with Mr Skrijel's counsel other than for the purposes of answering questions as a witness at the trial.

(57) The Cooey rifle which Mr Skrijel produced to the court is the Cooey rifle to the possession of which he pleaded guilty.

(58) There is no evidence as to how the Cooey rifle got back into Mr Skrijel's possession after the conclusion of the criminal trial and appeal. It can only be the result of a mistake or an offence on the part of one or more persons. But the evidence goes no further.

(59) Mr Mengler did not direct that Mr Skrijel be charged or procure that he be charged with the initial charges. Mr Mengler did direct Sergeant Iddles to inform Sergeant Carmady of the discovery of the explosives and to advise Sergeant Carmady to interview Mr Skrijel about the matter and to charge him. But as has been explained, that was a direction to advise Sergeant Carmady to do what was appropriate. The decision whether or not to charge remained with Sergeant Carmady.

(60) The decision to charge Mr Skrijel with the initial charges was made by Sergeant Carmady and Senior Constable Francis and Constable Walsh on 15 October 1985 without consultation with Mr Mengler and the decision to charge Mr Skrijel with the further charges was made by Sergeant Carmady on 7 November 1985, without consultation with Mr Mengler.

(61) There was reasonable and probable cause to charge Mr Skrijel with the initial charges and the further charges. In particular:

* The wood off-cut found in the shed was not the sole basis for the charge of cultivation. There was also the information of Trembarth and Watson and Lane and the responses given by Mr Skrijel to the questions asked of him at the house at Digby at the time of the raid, subsequently at the plantation and later still during the interview which was conducted at the Casterton Police station on 15 October 1985.

* It is not possible on the basis of the evidence to say how easy it would have been for a person or persons unknown to have entered the garage and shed in which the wood and the drum and the firearms were found. There is some evidence that it may have been possible to enter the garage by climbing either over or under the door of the garage or through one of two broken windows. The evidence does establish, however, that Mr Skrijel had been at the house for the best part of the 24 hours which preceded the raid; in that time Mr Skrijel had entered the shed to obtain and return the mower; the shed was locked at the time of the execution of the warrants; and the police obtained the keys from Mr Skrijel at the beginning of the raid (as is recorded in Sergeant Carmady's statement).

* The Cooey rifle was shown to Mr Skrijel on the bench in the garage shortly after it was found, and he was asked by Sergeant Carmady whether he had any explanation for it being there. He offered none. The drum was not shown to Mr Skrijel at that time because it had not then been discovered. After it had been discovered Mr Skrijel was asked about it, by Sergeant Carmady, on 7 November 1985. Mr Skrijel said then that it was his drum but that someone else must have put the cannabis and explosives in it. The fingerprint evidence was not available until about 25 October 1985 and it was not known to Sergeant Carmady even as at 7 November 1985.

(62) Sergeant Cook' statement on 6 February 1986 was not false. He had developed a latent left thumb print belonging to Mr Skrijel on the barrel housing (stock) of the Cooey and he had developed a latent print belonging to Mr Skrijel on the lid of the green plastic drum as he declared in his statement. Sergeant Cook did not give false testimony at the committal hearing on 4 July 1986 or in the County Court on 25 March 1987 and he did not withhold exculpatory evidence constituted of the three unidentified fingerprints found at the plantation. He reported the unidentified photographs in writing to the Crown prosecutor[75] as has already been recorded.

(63) Sergeant Cook did not deliberately mislead Mr Murdoch in any way. It is more probable than not that he incorrectly described the stock of the Cooey rifle as made of wood when speaking to Mr Murdoch in 1987. But, if so, he was at that time mistaken in his recollection, as has already been recorded. The error if any was an honest mistake.

The Law

697. To found a claim for malicious prosecution, a plaintiff must plead and prove:

(1) That the defendant(s) were actively instrumental in instituting or continuing the proceedings complained of;

(2) That the defendant(s) so acted maliciously;

(3) That the proceedings were so instituted or continued without reasonable and probable cause; and

(4) That the proceedings were terminated in the plaintiff's favour.[76]

(i) Actively instrumental

703. The many authorities which bear upon the question of what it means to be "actively instrumental" in the institution or continuation of a proceeding are compendiously summarised in Flemming, as follows:

"The defendant must have been `actively instrumental' in setting the law in motion. Merely supplying information, however incriminating, to the police on which they eventually decide to prosecute is not the equivalent of launching a prosecution; the critical decision not being his, `[the stone set rolling] is simply a stone of suspicion.' These days one should hesitate to credit an informant with having overcome the scepticism of a police trained to test the reliability of complaints. On the other hand, and informant may be regarded as a prosecutor if his information virtually compels the police to prosecute, even more where he deliberately deceives the police by supplying false information without which they would not have proceeded."

707. According to the same authorities, being "actively instrumental" means either instituting or continuing the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding as to be regarded as really taking that action through them[77].

710. Thus as Lord Keith explained in Martin v Watson[78]:

"Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant."

714. But as Richardson J cautioned in Commercial Union Assurance Co of New Zealand Ltd v Lamont[79]:

"The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution."

718. In this case it is alleged that Mr Mengler was actively instrumental in the institution of the criminal charges against Mr Skrijel, by directing Sergeant Carmady to lay the charges. It is further alleged that Mr Mengler and Sergeant Cook were actively instrumental in the institution or continuation of the criminal charges, by fabricating the evidence (of cultivation and possession of the cannabis and possession of the Cooey rifle) which was so damning that the police and subsequently the Director of Public Prosecutions were practically obliged to act on the basis of it.

721. I have found as a fact that Mr Mengler did not direct Sergeant Carmady to charge Mr Skrijel with the offences with which he was charged on 15 October 1985 or with the further offences with which he was charged on 7 November 1985. In my opinion Mr Mengler did no more in that respect than to advise Sergeant Carmady to interview Mr Skrijel and to proceed thereafter as appropriate. Sergeant Carmady (together with Senior Constable Francis and Constable Walsh) determined to the lay the initial charges on 15 October 1985, without reference to Mr Mengler, and Sergeant Carmady exercised his independent discretion in laying the further charges after the interview with Mr Skrijel on 7 November 1985.

724. I have also found as a fact that neither Mr Mengler nor Sergeant Cook fabricated any of the evidence. Mr Mengler did not plant or cause or procure to be planted the cannabis or explosives or the Cooey rifle, and Sergeant Cook did not fabricate the fingerprint evidence.

727. It follows, in my opinion, that Mr Skrijel fails in his allegations that Mr Mengler and Sergeant Cook were actively instrumental in instituting or continuing the criminal charges or proceeding.

730. In Sergeant Cook's case there is an additional reason for reaching that conclusion in respect of the initial charges. I have found as a fact that Sergeant Cook did not identify the thumb print on the Cooey rifle as Mr Skrijel's thumb print or identify the palm print on the lid of the green plastic drum as Mr Skrijel's palm print until after the initial charges were laid, and thus that the neither the finger print nor the palm print played any part in Sergeant Carmady's decision of 15 October 1985 that the initial charges be brought. It follows that that evidence could not have led to the laying of the initial charges - indeed Sergeant Carmady gave direct evidence that his decision to lay the initial charges was not influenced by the fingerprint evidence - and while it may have been critical to the continuation of the proceedings, I am not satisfied that it was. So far as the cannabis in the drum is concerned, the mere fact that it was in the shed was evidence of possession[80] and, as has been observed already, Mr Skrijel pleaded guilty to possession of the Cooey rifle.

733. A further argument was advanced on behalf of Sergeant Cook, that the bulk of the allegations made against him relate to acts and omissions solely in respect of his conduct at the committal and the trial, and that such conduct is the subject of the "witness immunity" principle essayed in Cabassi v Vila[81]. I think it inappropriate that I say a great deal about that argument. Although the scope of protection afforded by Cabassi v Vila is undoubtedly broad, for example, it extends to out of court statements which can fairly be said to be part of the process of investigating a crime or possible crime with a view to a prosecution[82], it is not unlimited and it is not to be extended beyond necessity[83]. In England it has been held not to extend to protect police officers who fabricate evidence [84]. In a case like this, where there has been no fabrication, it would not be appropriate to consider what the position might have been if fabrication had been established.

737. A good deal of plaintiff's final submissions was devoted to the subject of malice. Mr Berthelsen addressed the issue with many words and many times in the course of his address. His contentions concerning Mr Mengler are perhaps best encapsulated in the following passage from the transcript of his final address:

"So, on this issue, Your Honour, we could say, did Mr Skrijel really have a motive for doing what he said? He's [Skrijel is] in Melbourne, very publicly distributing pamphlets, complaining about the quality and the nature of the investigations that has been done to date. On the other hand, we have the first defendant who's been, he feels, unfairly targeted with what he would probably regard as a highly defamatory pamphlet, and he's in a position of power and authority, and so who has the most motive? Is it the plaintiff or is it the National Crime Authority or is it Mr Mengler? It seems, Your Honour, all of these people in authority had a motive to do what the plaintiff says was done to him. He was framed for these crimes. HIS HONOUR: What was the motive? MR BERTHELSEN: The motive, Your Honour, first Mr Skrijel had been what they would probably call a serial complainant because he because he had been making complaints over a period of years. There's probably little doubt that the authorities regard him as having tied up resources of police forces and government agencies, he had written to prime ministers, Fraser, Hawke, he had written to ministers, ministers of state, he had sought Royal Commissions. He had become literally a real thorn in the side to a lot of people in high places. Then there's of course the motive from the National Crime Authority's point of view. They are under a lot of pressure to perform. There was a sunset clause in their legislation and they had to get runs on the board so what better way of doing it than getting rid of two problems at once: the man who's handing out pamphlets naming the first defendant and Iddles and Collins, and satisfying the politicians and the bureaucrats who don't like Mr Skrijel's activities. So there is certainly plenty of motive..."

741. Less was said of motive in the case of Sergeant Cook. It was, however, insinuated in cross examination of Sergeant Cook that as at 15 October 1985 he was but a newly qualified finger print expert and that he would have been keen to do for a senior officer like Mr Mengler whatever may have been asked. And in the course of final submission, Mr Berthelsen added the following:

"We have the first defendant who is directing the entire operation and you could say that the whole team were acting as an organic unit for the purposes of this prosecution. You had Mr Mengler, who had the ability to bring together whatever resources were needed and he brought together a surveillance unit from the Victoria Police, he made enquiries when needed of the South Australian police and got whatever information he needed from them. He brought together a forensic team which consisted of a crime scene unit. He got a photographer, a video man, fingerprinter, everything that he needed. He got vehicles on the day, he went and hired vehicles to take all the property back. He was the man in charge, he was the man, the ringmaster you might call him, and all he had to do was give an order to anybody and they would say "Go and instruct this person" and they would go and instruct that person. Whether the first defendant spoke directly to Sergeant Cook or whether he conveyed his orders through Sergeant Iddles or perhaps through Sergeant Carmady is really immaterial, Your Honour. What I'm suggesting is that he was the ringmaster controlling everything and he was in a position to ask Mr Iddles anything that he wanted [about] Skrijel to find out." (Emphasis added).

745. "Malice" in the law relating to malicious prosecution means acting with spite or ill will or with an indirect and improper motive[85]. Thus a lack of honest belief in the guilt of the accused is conclusive of improper purpose. But an honest but mistaken belief in the guilt of the plaintiff will not be sufficient[86]. Furthermore, the burden of proving malice rests on the plaintiff, and that burden can only be discharged by proving the existence of a motive that was improper or, alternatively, by proving circumstances such that the actions of the prosecutor can only be accounted for by the imputation of a wrong and indirect motive[87].

748. I have found as a fact that whatever irritation may have resulted from Mr Skrijel's allegations of ineptitude and corruption, Mr Mengler acted with propriety in what he perceived to be his duty. He did not fabricate or cause or procure the fabrication of evidence and he did not doubt the legitimacy of the evidence which was gathered at the plantation and at Mr Skrijel's Digby home by the Sergeant Carmady's team and Sergeant Huggins' team. Accordingly, the allegation that the Mr Mengler acted with malice fails on the facts.

751. I have also found that Sergeant Cook acted with propriety in the discharge of his duty. In my opinion he did no more nor less than his professional best to identify the thumb print and palm print which he found, and he did so accurately as has since been established. Furthermore, the plaintiff has not adduced any evidence which goes near to establishing a motive for him to act dishonestly in the collection of the fingerprint evidence. On the evidence which has been adduced, Sergeant Cook had not heard of Mr Skrijel before 15 October 1985; he had not worked with or for the NCA before 15 October 1985; he had not met Mr Mengler before 15 October 1985; he had not met Sergeant Huggins before 15 October 1985; and he did not know Sergeant Iddles. The insinuation that Sergeant Cook would be so willing to please senior officers as to fabricate evidence is unjustified.

755. The plaintiff put his contentions as to lack of reasonable and probable cause in two ways. The first was that :

"...there was no basis in law for the first defendant to authorise Sergeant Carmady to obtain search warrants to look for cannabis on the plaintiff's Bowen Street Digby premises or to order the arrest and charging of the plaintiff because none of the conditions that must be met in order to have reasonable and probable cause for prosecuting the plaintiff were met... The first defendant knew that the Crown's case against the plaintiff was highly circumstantial and would likely fail, and for that reason enlisted the support of the third defendant to ensure that the charges laid against the plaintiff would succeed. ...the third defendant aided and abetted the first defendant in securing convictions on all the indictable offences by falsifying fingerprint evidence and by giving false evidence as an expert witness that in his opinion the lid of the green plastic drum could not be removed without disturbing a palm print on the lid of the drum and the palm print was not disturbed..."

759. That contention fails in limine. I have concluded that neither Mr Mengler nor Sergeant Cook was instrumental in the institution or the continuation of the criminal proceeding (in the sense which is relevant to malicious prosecution). It follows that the question of reasonable and probable cause does not arise for decision.

762. It seems to me too that even if Mr Mengler or Sergeant Cook had been instrumental in the institution or continuation of the proceeding, the argument would still fail. In short, inasmuch as it assumes that Mr Mengler or Mr Cook falsified fingerprint evidence or that Sergeant Cook gave false evidence as a fingerprint expert, it proceeds upon a misconception of the facts. I have found that neither Mr Mengler nor Sergeant Cook falsified evidence or testified in a way which they knew to be false. Inasmuch as it rests upon the proposition that there was no basis in law to obtain search warrants and to arrest and charge, it misconceives the law[88]. Even if there were not sufficient basis to search and to arrest and charge (and I think that there was), that would not be sufficient to establish an absence of reasonable and probable cause[89].

765. The second way in which the plaintiff put his contentions was in the form of an argument which proceeded by the following steps (as I understood them):

* First, by reference to Sergeant Iddles evidence that:

"As my investigation progressed at a particular stage I went back and got statements. My initial thing within the first couple of days was to try to talk to as many people as possible. I was aware I was going into a small fishing community. If I went in and sat down with witness `A' and spent four hours with him, the whole town would know I was there. The best way to get an assessment as to whether there was police corruption, drug trafficking or that, was to try to talk to as many people in as short a period of time, and that's what I did."

* Secondly, by saying that if one looks at all the evidence, including Sergeant Iddles' final report of 23 October 1985[90], it is apparent that Sergeant Iddles based his belief in Mr Skrijel's guilt on:

(a) the allegations of Trembath and Graham Watson that Mr Skrijel approached them and asked them to grow cannabis; (b) Lane's information that he had seen Mr Skrijel in the forest in May 1985 with the two sheets or iron; and (c) the discovery at the plantation on 8 October 1985 of the rough bush table made of sheets of iron, and the industrial paint tins in which were planted the marijuana plants (bearing in mind that Mr Skrijel had once been a painter).

* Thirdly, by criticising Sergeant Iddles' use of the statements of Trembath and Watson, in a number of ways. It was said that Sergeant Iddles knew that the Matthews tapes corroborated Mr Skrijel's version of events concerning the 1978 drug drop; that Mr Skrijel had been persecuted for the stand which he had taken against drugs and official corruption; and that Sergeant Iddles knew that Graham Watson was closely related to the Graham Watson who had offered Mr Skrijel $10,000 to pick up heroin drops from the sea. Thus it was contended that Watson's statement should have been regarded as inherently unreliable. It was said that Sergeant Iddles knew that Trembath had been charged with the theft of crayfish from Mr Skrijel in 1982; that Mr Skrijel alleged that Watson had put Trembath up to it; that Mr Skrijel had been threatened by telephone in May 1985 that he was not to give evidence against Trembath at the hearing of the charges which was scheduled for August 1985; and that Mr Skrijel's house had been set alight on 8 May 1985 shortly after the phone call. Thus it was contended that both Trembath's and Watson's statements should have been regarded as inherently unreliable. It was also said that Sergeant Iddles knew that Mr Skrijel had been handing out his pamphlet "The National Crime Cover Up Authority"[91] and that it made highly damaging allegations against politicians, the judiciary, the NCA and Mr Mengler and Sergeant Iddles, among many others. Thus it was contended, as I understood it, that it should have been apparent to Sergeant Iddles that things which might otherwise appear to implicate Mr Skrijel in the cultivation of marijuana were likely to be the result of a frame-up.

* Fourthly, by criticising the significance which Sergeant Iddles attached to the discovery of the paint tins at the plantation. Although Mr Skrijel had once owned a painting business, it was contended that his fishing records would have revealed that he had been engaged full time in cray fishing since the start of the 1975 season.

* Fifthly, by criticising the significance which Sergeant Iddles attached to the rough bush table made of sheets of iron. It was contended that Sergeant Iddles should have known of the explanation which Mr Skrijel had given to Assistant Commissioner Glare and Chief Inspector Ryan in May or June 1985: namely, that Mr Skrijel had found the iron in the forest and used it in cladding the wall of his carport at Digby (and thus that he could not have used it in making the table at the plantation), or alternatively on the basis that if Sergeant Iddles had acted as "a man of ordinary prudence and caution (he) would have approached the plaintiff as Assistant Commissioner Glare had done on or about 10 June 1985 and asked about the encounter with... Lane in the... forest".

"A man of ordinary prudence and caution would not have jumped to the conclusion that paint tins used for the cultivation of a large number of cannabis plants were concealed at the plaintiff's Bowen Street Digby premises as stated in a Search Warrant for Instruments, Articles, Things or Materials issued by Magistrate Musgrave on 8 October 1985, just because some used industrial paint drums had been found at the clearing in the Weecurra State Forest, 16 km from the plaintiff's premises at Bowen Street Digby. A man of ordinary prudence and caution would have spoken to the plaintiff before a Warrant to Search the Plaintiff's premises was sought, asked if the plaintiff could explain the circumstances by which he came to be carrying the iron, and asked for the names of his companions so that they could be interviewed. He would be suspicious of Lane's ability to lead police to the clearing and had remained hidden for years notwithstanding the use of the forest for recreational purposes by the local Digby community. The first defendant who was ultimately responsible to ensure that investigations were carried out competently in accordance with law evidently did nothing to ensure that Sergeant Iddles had done every thing that might be expected of a man of ordinary prudence and caution."

777. I think that that argument is also deficient in a number of respects. The first is that even if one accepted the criticisms of the evidence upon which Sergeant Iddles proceeded, there would still have been sufficient basis to seek the search warrants which were obtained from Magistrate Musgrave. All that was required was information which would satisfy a Magistrate that there were reasonable grounds for believing that there would be found within the house anything which it was believed on reasonable grounds would afford evidence as to the commission of an indictable offence. And, as Senior Sergeant Iddles deposed time and again in the course of cross examination, there was information which did that:

"MR BERTHELSEN: I know we have covered some of this ground, Mr Iddles, but could you just start by telling me, please, when you first had a suspicion that Mr Skrijel might be involved in some sort of illicit activity? _ Involved in - I missed the last word? In some form of illicit activity? --- The first time I became aware I guess was when Barry Trembath made a comment that to grow a crop would be a good way to make some money, that in itself didn't I suppose ring a lot of alarm bells. I spoke to Graham Watson, that's Graham Leslie Watson, he told me that Skrijel again had also offered him, to set him up and to grow marijuana which he rejected and they were saying to me things like, `You've got to be careful, he's making all these allegations; it's a smoke screen, you want to look behind'. Again, as to what weight I placed on that at the time I can't recall. It's not until I spoke to Henry McClintock who told me that he had had a conversation with, I think, Bill Lane. I ultimately spoke to Bill Lane and he said, `Look, I've seen Mr Skrijel coming out of the Weecurra State Forest or in the Weecurra State Forest with a couple of sheets of tin'. Then I started to think, hang on a minute, I have got some information from both Trembath and Watson that he was interested in growing a crop, he spoke about growing it in the bush and here I had him in the middle of the bush with two sheets of tin and two unidentified males and it wasn't until I actually went there and found the marijuana that it confirmed that he may be involved."... ... So it was not the kind of place you would stumble across by accident, was it? --- That who would stumble across it? Anybody who went to, say, Boyd's Hut area, anybody who drove along the track would hardly stumble across the plantation by accident, would they? --- No, probably very difficult. So the mere fact that somebody is seen driving along the track or walking along the track with two sheets of iron should not have been a cause, a reason to jump to any conclusions about cultivation of cannabis, should it? --- Hang on a minute. Mr Lane sees Mr Skrijel in the bush with two other men who he does not know. He seems him bob down or something similar. He sees him with two sheets of galvanised iron. He talks to him. They say they are out shooting, they don't have guns. It's not far off the creek area. No, that's probably not for Mr Lane to be alarmed but then I couple it altogether with what I'm told by Watson and Trembath and yes, by that stage I'm starting to be concerned... Did you at any time, after you got that information, say to Mr Mengler, `I think we should interview Mr Skrijel'? --- No. Mr Mengler would have said, `Don't be stupid. You are experienced investigator, don't even attempt it'. Why would he have said that? --- Because here you have a situation where a man is a suspect by 8 October for growing a crop of marijuana. If I go to him and say, `Mr Skrijel, you were seen out in the bush carrying two sheets of tin' and in fact he is the person who is growing the crop of marijuana, he is never, ever going to come and tend to that crop. Let's get it clear. Your suspicions were based upon highly suspect information, information coming from two people who had been accused of being involved with heroin and Mr McClintock, you had no clue at all about the connection between him and Mr Lane and you did not even enquire; is that correct? --- As I said, I don't know what weight I placed on the evidence or the information given to me by Trembath and Watson. I spoke to McClintock. As a result I went to the source, Mr Lane. He directed us out and we located a crop. Why was Mr Skrijel a suspect in the first place? --- At the stage I located the crop, I have evidence from Mr Lane that he has seen a man who he knows is Mick with two other people carrying two sheets of tin. He sees, at the crop site, two sheets of galvanised tin which he believes is of a similar age and appearance as to what he saw with Mr Skrijel. Surely there are some facts known to the investigating official which might tend to reveal Mr Skrijel is involved.... ... I am saying he was set up by you people because of his actions in persisting with making allegations about heroin importation and, two, it was getting up your nose that he was handing out pamphlets deriding the kind and quality of your operation called Operation Southend and he was deriding you in pamphlets in front of the NCA headquarters and the Supreme Court? - Firstly, he was not set up; secondly, the fact that he's published things with my name in it and he's continually done for the last 18 years I've lived with it and it hasn't got up my nose... ... I considered him a suspect because I had information from Graham Watson, I had information from Barry Trembath. I had spoken to the source of the information which was Lane who had seen Mr Skrijel in the bush with two men and some sheets of tin. On 8 October I went there with Mr Lane, we located a plantation. The two sheets of tin which Mr Lane had seen Mr Skrijel with he believed formed the table or were similar. In my mind as the investigating official, it was more than mere speculation or idle wandering. I had some material fact which would to tend to make me believe more likely than not that Mr Skrijel may be involved in that plantation."

781. The second respect in which the argument is deficient is that the criticisms of the evidence are not justified. For the reasons which Sergeant Iddles gave in evidence, and which I accept, after interviewing Trembath and Watson he believed that what they were told him was truthful; for the reasons which he explained, and which I accept, he was not able to get access to Mr Skrijel's fishing records (Mr Skrijel refused to allow it), and hence he could not ascertain how long it had been since Mr Skrijel ceased to be involved in painting (if indeed he had ceased to be involved); for the reasons which he gave, and I accept, he regarded Lane as truthful and reliable; and for the reasons which he explained, and self evidently, it would have been absurd to ask Mr Skrijel what he knew of the plantation before obtaining search warrants to search Mr Skrijel's home for evidence to connect Mr Skrijel to the plantation[92]. The method of investigation which Sergeant Iddles adopted was calculated to produce the best results in the difficult environment of a small coastal village; there was considerable reason to doubt Mr Skrijel's story about the drugs drop at sea, not least for the reason that Mr Skrijel said nothing about any such thing during the South Australian coronial inquest into the burning of his boat (which was held in 1979 soon after the alleged drug drop in 1978)[93] and because the story changed in significant details over time and from time to time (for example, Mr Skrijel told the coroner that he had sacked Watson because he was an unreliable worker and not because Watson had anything to do with drugs); there was some reason to suspect that Mr Skrijel may have caused the burning of his boat in order to claim the insurance; there was some reason to suspect that Mr Skrijel may have started the fire in his house in order to claim the insurance; and there was evidence (obtained from Dr Kahn and in the course of the interview of Mr Skrijel on 13 June 1985[94]) that Mr Skrijel had suffered a nervous breakdown and was threatening to shoot police.

784. The third respect in which the argument is deficient is that it assumes, incorrectly, that Mr Mengler and Sergeant Cook were responsible for the decision to arrest and charge Mr Skrijel with the original charges on 15 October 1985 and the further charges on 7 November 1985. As explained already, the decision that Mr Skrijel be charged was made by Sergeant Carmady as the officer in charge of executing the warrants and not by Mr Mengler or Sergeant Cook. Accordingly, the question of whether Mr Mengler or Sergeant Cook had reasonable and probable cause to charge Mr Skrijel is a misdirected inquiry.

787. The fourth respect in which the argument is deficient is that, even if the actions of Sergeant Carmady could in some way to be attributed to Mr Mengler and Sergeant Cook, and on that basis it could be said that they caused Mr Skrijel to be charged, the evidence shows that Sergeant Carmady believed that the probability of guilt was such that upon general grounds of justice the charges were warranted[95]. In my opinion it also shows that his belief was based upon information which would justify a man of ordinary prudence and caution in believing that Mr Skrijel was probably guilty[96]. Not only was there the information on which Sergeant Huggins had based his decision to set up the surveillance and obtain the warrants, there was also the cannabis and the Cooey rifle which were obtained during the search on the morning of 15 October 1985; the responses which Mr Skrijel gave to the questions asked of him at the house and in the forest[97]; and the answers which he gave to the questions asked of him during the formal interview at Casterton Police Station. By the time of the further charges, there was in addition the evidence gathered by Sergeant Huggins and the discovery of the explosives and detonators in the green plastic drum coupled with Mr Skrijel's responses to the further questions asked of him on 7 November 1985.

790. Finally, it is to be remembered that the burden of proving absence of reasonable and probable cause lies squarely on the plaintiff, and that the standard of proof is high[98]. That does not mean something other than proof on the balance of probabilities, but it does mean that the evidence has to be strong[99]. As Flemming says it, is not enough to adduce reasons for non belief without showing that they were operative. One way of doing that is to show that no reasonable person could have believed in the guilt of the accused. But even if the evidence in this case did not go so far as to establish positively that there were reasonable grounds for what was done - and in my view it does - it could not by any stretch of the imagination be said to point so overwhelmingly to Mr Skrijel's innocence that no reasonable person could have believed in his guilt.

"... if proceedings terminated in favour of the plaintiff, it matters naught how this came about. The crux is not so much whether he has been proved innocent as that he has not been convicted. This, of course, accords with the presumption of his innocence until found guilty according to law. Thus he is not required to show an acquittal on the merits; it may as well have bee based on some defect in the indictment or on his conviction being quashed on appeal for some irregularity of procedure. It is not even necessary that the proceedings had advanced to a stage where a further prosecution was precluded on the ground of double jeopardy, so long - it would seem - as they have terminated in such a manner that they cannot be revived without starting afresh. This explains why it has been held to be enough that a magistrate refused to commit the accused for trial, a grand jury declined to find a true bill, or) its counterpart in New South Wales) the Attorney-General refused to file an indictment. Even the mere discontinuance of a prosecution of the entry of a nolle prosequi after an indictment had once been filed may now, despite some earlier doubts, be regarded as in every way sufficient. In none of these cases is it permissible for either party to reopen the question of innocence or guilt; it is neither incumbent on the plaintiff to establish his innocence, nor may the defendant set out to prove that the accused was fact guilty of the crime charged against him." (Emphasis added).

798. It seems to me, however, that the law in this country is not so simple. In Davis v Gell[100] a majority of the High Court held that a nolle prosequi was not enough to establish that the proceeding had terminated favourably to the plaintiff. The plaintiff had also to prove that he was innocent of the offence with which he was charged. Flemming[101] says that the decision in Davis v Gell may safely be discounted in light of Commonwealth Life Assurance v Smith[102], and that the decision in Mann v Jacombe[103] establishes that the entry of a nolle prosequi after an indictment has been filed is in every way sufficient[104]. I do not see how that can be correct.

801. Davis v Gell was a case in which a nolle prosequi was entered after the plaintiff had been committed to stand trial and had pleaded not guilty to the indictment. The High Court held by majority that in an action for malicious prosecution the plaintiff had to prove his innocence. The nolle prosequi established that the proceedings were terminated in his favour but that did not establish his innocence.

804. Commonwealth Life Assurance v Smith was not concerned with a nolle prosequi. The Court was concerned with the attorney general's refusal to file an indictment, and the majority held that:

"Unless the termination of the criminal proceedings has been by nolle prosequi, a case which is covered by Davis v Gell, the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff." (My Emphasis).

As I read that decision it expressly preserves the effect of Davis v Gell in its application to cases of nolle prosequi[105].

809. That being so, I do not understand how any decision other than another decision of the High Court could be thought to alter the position. 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[106]. Until the High Court says otherwise, the law in relation to nolle prosequi remains as in Davis v Gell.

812. Moreover, it does not appear to me that the court in Mann v Jacombe did purport to decide anything contrary to Davis v Gell. Mann v Jacombe was about pre Judicature Act pleading in New South Wales. The point at issue was whether the plaintiff against whom the criminal proceeding was non pros had to plead innocence. It was held that he did not. The court said only that:

"...it appears that the balance of decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution."[107]

816. Perhaps Mann v Jacombe says something inferentially about what the plaintiff would later have to prove at trial. But I do not think it has to be taken that way. The decision in Davis v Gell was that it was necessary for the plaintiff to prove his innocence, not that he had to plead it, and as Starke J noted in Davis v Gell that had long been the law:

"But it is `not necessary in an action for malicious prosecution that the plaintiff should allege or prove such an acquittal, for it may be brought under circumstances which preclude the possibility of such and acquittal' (Selwyn's Nisi Prius, 13th ed., vol. II., p. 105). He may show, for Instance; that the proceedings terminated in his favour by a nolle prosequi or by the ignoramus of a grand jury or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the Court or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case."[108]

I see no necessary inconsistency as between that and what was held in Mann v Jacombe.

821. In the course of final addresses the first and third defendants provided me with references to a number of American authorities on the question of nolle prosequi in the law relating to malicious prosecution and it was submitted on the basis of those authorities that, despite the decision in Davis v Gell, a nolle prosequi is only to be regarded as a favourable termination of the criminal proceeding if the reasons stated for the nolle are "consistent with the innocence of the accused" rather than for "procedural or technical defect"[109]. For the reasons already given I do not consider that it is open to me to adopt that course. I regard myself as bound by Davis v Gell.

824. But in case the matter goes further, and a higher court takes a different view of the law, I should say too that I do not consider that the reasons for which the nolle prosequi were entered in this case were "consistent with innocence of the accused" (in the sense in which that idea is used in the American jurisprudence). A Memorandum of 10 April 1989 from the Solicitor to the Director of Public Prosecutions[110] and the Advice of the Prosecutor for the Queen of 13 April 1989[111] show that the decision to enter a nolle prosequi was not the result of any perceived inadequacy in the evidence. Rather it was considered that because Mr Skrijel had no prior convictions and had served his sentence less remissions by the time of the appeal, there was no practical reason to incur the cost of a re-trial. As it was put in the Crown Prosecutor's advice, it was considered that the case was a dead letter and it was entirely appropriate to direct a nolle prosequi because no further benefit to the community was to be had from spending money and time on a retrial.

827. My conclusion, however, is that the plaintiff has not proved that the criminal proceeding terminated favourably to him because, in the case of the indictable offences which were the subject of the nolle prosequi, he was bound to prove his innocence of the charges, and he has not done so - indeed he has not even attempted to do so - and in the case of the firearms charge, his conviction was the result of his plea of guilty and it was not the subject of appeal and it stands.

831. The third defendant pleaded as one of its defences that the plaintiff's cause of action accrued more than six years before the third defendant was joined as a defendant to the proceeding in 1998, and thus it was statute barred[112]. There was no plea in reply to that allegation but during the course of final addresses I allowed the plaintiff to put an argument that the right of action had been concealed by fraud and therefore that time had not begun to run until the fraud was discovered or could with reasonable diligence have been discovered[113].

834. As it appears to me, any cause of action which the plaintiff may have had against the third defendant must have accrued no later than the date on which the plaintiff was convicted of the indictable offences. It follows that since he was convicted on 10 July 1987 and was sentenced on 24 July 1987, any cause of action was well and truly time barred by the time of joinder in 1998, subject to question of concealment.

837. The question of concealment was dealt with at some length by Eames J in 1998 in his Honour's reasons for refusing an interlocutory application to strike out the plaintiff's claim against the third defendant[114]. Evidently the plaintiff's statement of claim was then in form considerably different to its present form and included allegations of misfeasance in pubic office and conspiracy. What was said by his Honour, however, remains relevant to the plaintiff's claim for malicious prosecution. The essence of it was as follows:

"58. The question is not without its difficulty, but it seems to me that it is arguable that what the plaintiff learned in 1998, by virtue of Murdoch and his investigations, is that Cook had presented to the jury a photograph purporting to be that of a fingerprint obtained on the Cooey rifle when in fact the photograph was not a photograph of the Cooey rifle, at all, but of some other object on which the plaintiff's fingerprint, legitimately, was located. On one view, that is a discovery merely of evidence to supply an allegation of misfeasance of public office by Cook. On the other hand, the plaintiff argues that however great his suspicions were that Cook had given false evidence to the jury, it was only by virtue of Murdoch's evidence (and Cook's alleged role in misleading Murdoch) that the plaintiff established that Cook, and not someone else, had been responsible for the production of false evidence against him, by manufacturing a photograph purporting to be a photograph of the Cooey rifle, when it was not. That precise fact, if proved, would demonstrate that Cook was not merely an unwitting tool of some other person in presenting false evidence, but must have himself been involved in a deliberate action of concoction of a photograph. 59. That seems to me to be more than mere evidence, arguably, and to be capable of constituting an essential element of the ...[the cause of action]... 60. The actions of Cook in his dealings with Murdoch arguably also disclosed, for the first time, that it was Cook, and not someone else, who was engaged in a conspiracy with others (in particular the firstnamed defendant) to present such evidence for the purpose of obtaining a conviction against the plaintiff... 61. In my view, although the matter is not free from doubt, by any means, it is certainly arguable that facts which were essential parts of the causes of action of conspiracy and misfeasance in public office had been suppressed by Cook and were only discovered in 1998 by the plaintiff, however much he suspected those facts earlier. That being so, the plaintiff, arguably, might be able to defeat the limitation defence by reference to s. 27(b)."

841. I respectfully adopt his Honour's reasoning. I consider that if Sergeant Cook had fabricated the fingerprint evidence and had given false testimony as alleged, there would have been concealment within the meaning of s. 27(b) and that it would not have been discovered and could not with reasonable diligence have been discovered until 1997, when Mr Murdoch's evidence first became available to Mr Skrijel. But the point is moot. There was no fabrication or false testimony and thus there was no concealment. Section 27 does not apply.

845. The second and fourth defendants favoured me with extensive submissions on the questions of whether the Commonwealth could be held vicariously liable for the misdeeds alleged against Mr Mengler and whether the State of Victoria could be held liable for the misdeeds alleged against Sergeant Cook. They include contentions that a policeman is not an employee of the Crown he serves (and thus that there is not between the Crown and the policeman a master and servant relationship for the purposes of the law relating to vicarious liability)[115]; that, in any event, the misdeeds which are alleged against Mr Mengler and Sergeant Cook were undertaken in the performance of independent duties imposed upon them by statute and to be exercised as a matter of independent responsibility (and thus for which the Crown cannot be liable)[116]; and that, even if the Crown might otherwise be liable for the acts or omissions of a policeman, it is not liable for fraudulent conduct of the kind alleged[117].

848. Since I have found that Mr Mengler and Sergeant Cook did not commit any of the misdeeds which are alleged against them, these issues of vicarious responsibility do not arise and I say nothing further about them.

852. There was, however, one argument put by the plaintiff concerning vicarious liability of which something further needs to be said. It was that the Commonwealth and the State were vicariously liable because they were party to a conspiracy "which includes corrupt police officers, self-serving politicians, crooked judges and a judicial system which no longer knows the meaning of the word justice"[118].

855. According to that analysis, the allegedly corrupt police officers include Mr Mengler and Sergeant Cook and Sergeant Rogers and Sergeant Milner as well as Sergeant Huggins and Mr Roddick and Mr Salter. The self serving politicians include the politicians previously mentioned (Mr Fraser, Mr Hawke and Mr Young) and also Senator Tate (who, as I understood the contention, is alleged to be implicated because of his refusal to appoint a Royal Commission to inquire into Mr Skrijel's allegations of corruption and "frame-up").

858. The "crooked judges" are alleged to include Sir John Young, formerly the Chief Justice of Victoria, and his Honour Judge Nixon of the County Court, who was the trial judge.

861. The "judicial system which no longer knows the meaning of the word justice" is alleged to include the judges just mentioned, as well as Mr Jack Gaffney (formerly the Registrar of the Victorian Court of Criminal Appeal) and Mr Justice Coldrey (formerly the Victorian Director of Public Prosecutions), Mr Justice Stewart (some time chairman of the National Crime Authority) and Mr Julian Leckie SC (some time acting chairman of the National Crime Authority).

864. It is also alleged that a significant part of the legal profession is involved in the conspiracy. Participants are alleged to include the prosecutor at Mr Skrijel's criminal trial, Mr Lee, and defence counsel, Mr Brewer: in Mr Lee's case, it is said, for not disclosing that Mr Skrijel's harassment allegations were true and in Mr Brewer's case, it is said, for not conducting Mr Skrijel's defence as Mr Skrijel wanted it conducted; Mr Prus, who was the solicitor who wrote on behalf of Mr Skrijel advising that Mr Skrijel wished to plead guilty to the firearms charge (he is said to have had no authority to offer the plea of guilty); Mr Nurendini, who was Mr Skrijel's solicitor until he ceased to act shortly before the trial of this proceeding; and Mr Kauffman of counsel who was to represent Mr Skrijel in the trial of this proceeding until Mr Skrijel rescinded his retainer days before the beginning of the trial.

867. Sir John Young is alleged to be involved on the basis of responses written by his associate to requests made by Mr Berthelsen late in 1988 for a transcript of Mr Skrijel's criminal appeal. The substance of those responses was that there was no transcript of the appeal. It was said of that response:

"It could be argued that even the Chief Justice and the Registrar are both blind to injustice in matters involving the NCA. Even if it was true that transcripts were not taken of Appeal Court proceedings, the layman might be forgiven for wondering why a transcript would not be ordered when warning is given in a previous hearing that evidence of fabrication of evidence would be given at the subsequent hearing. That was not the case however, and the decision of the Court not to keep a record of the proceedings, or at least to acknowledge that there was a record has to be considered in the context of what was said to the Full Bench of the Supreme Court on 6 November 1987. It is left to Committee members to decide whether there was a possible conspiracy to conceal evidence and if there was whether the NCA may have bee party to that conspiracy." [119]

871. The Registrar was said to be included because he had not responded to letters sent by Mr Berthelsen to him after Sir John Young had said that no further correspondence on the subject would be entered into.

874. The Director of Public Prosecutions was alleged to be involved on the basis that although he was provided with the "Comprehensive Summary of Evidence" he had done nothing with it.

877. His Honour Judge Nixon was alleged to be involved because he had made mention in the course of his sentencing remarks of a pre-sentence psychiatric report prepared by Dr John Grigor, psychiatrist, in which Dr Grigor expressed the opinion that Mr Skrijel was suffering from paranoia. Dr Grigor had invoked what he described as the "common man test " as an aid to determining whether Mr Skrijel's allegations were delusional. Of this it was said by Mr Berthelsen (who has no medical or legal qualifications) that:

"Such quackery would normally be rejected by a judge with any integrity, so why did the judge seize upon these ludicrous comments of Grigor when he had properly prepared professional opinions in his hands? It is left to the Committee to decide whether it is likely that, at some earlier time, someone in the NCA might have given the good doctor and the judge a few straight word of advice - the kind that was given to Peter Faris before his resignation."[120]

881. Mr Justice Stewart and Mr Leckie were alleged to be involved because each of them at different times headed up the National Crime Authority. Mr Justice Stewart is said to have demonstrated his complicity by reporting to Senator Baume that Mr Skrijel's allegations had been fully investigated, whereas Mr Skrijel maintains that the investigation was a sham. Mr Leckie is said to have demonstrated his complicity by presiding over the National Crime Authority when it was discovered that the Matthews' tapes had been lost.

884. Further evidence of the existence of the conspiracy was said to exist in the fact that Mr Skrijel's daughter's car had caught fire after Mr Skrijel had gone to the Hamilton press:

"On May 14 1988, the Hamilton Spectator ran a story on page one `Justices Uphold Appeal - Frame-up claims'. Another story appeared in the Sunday Press on May 28, `Hell for man who said "no" to the drug runners.' Five days after the Sunday Press story, on Friday June 3, Skrijel's elder daughter went to Tullamarine airport to pick up her mother from her place of employment. She parked the car, switched off the ignition and within minutes of leaving the vehicle, it was engulfed in flames, and totally destroyed. The vehicle was worth in excess of $4,000 and was not insured. ... Soon after the incident, Skrijel was given a message which his informant said came from police. It was to keep away from the press in the future."[121]

888. There are in addition many more allegations of a similar kind studded throughout the volumes of material that Mr Skrijel and Mr Berthelsen have produced since 1988. They run to hundreds of pages and each of them is said now or at one time or another since 1988 has been said to demonstrate the existence of "the conspiracy". According to Mr Berthelsen's recitation of what he and Mr Skrijel perceive to be their effect:

"If there is a common thread to Mr Skrijel's story it is the incredible effort that seems to be made in all areas and at all costs to discredit Mr Skrijel. There seems little doubt that much of that effort is being made at the present time by the National Crime Authority and its mouthpiece in the Parliament. In the opinion of this writer (scil Mr Berthelsen) the NCA is like an enormous, evil octopus. It has tentacles reaching into the Parliament, the judiciary and into State and Federal law enforcement agencies. It is subverting these institutions and in so doing it is slowly but surely destroying democracy in this country. As Mr Skrijel's case is not unique, the NCA should be thoroughly investigated and then dismantled. As the NCA already has the power to subvert a Royal Commission, even before it commences, it is the opinion of this writer that a grand jury is the only effective form of public enquiry which at this point in time has a chance to establish the whole truth - not just in relation to the Skrijel frame-up but the death of Cassandra Ogden, the death of George Octapodellis, the death of David Millard and many other matters which the NCA has attempted to conceal since its illegitimate birth in 1984."

892. There are facets of this case left unexplained by the evidence. The most significant of them is that the sawn-off Cooey rifle ended up back in Mr Skrijel's possession after his Honour Judge Nixon ordered that it be forfeited. Because Mr Skrijel chose not to give evidence, I do not know how he managed to get hold of the weapon again. The Matthews tapes are also something of a mystery. But however that may be, I have not seen any evidence in this proceeding which is capable of establishing these allegations of conspiracy. And quite apart from the lack of evidence, the nature of the allegations makes them utterly improbable. So far as I can see they are baseless.

896. For the reasons expressed the plaintiff's claim will be dismissed. There will be judgment for each of the defendants. I shall hear counsel on the form of orders.

[1] Mackenzie v Mackenzie [1971] P 33 at p.41

[6] A relative of the Graham Watson who had been a crewman on Mr Skrijel's boat.

[9] Exhibit 1D8 (enlargements are Exhibit 1D9)

[13] R v Murphy [1965] VicRp 26; [1965] VR 187 at p.191; Narong Van v R [2002] NSWCA 148 at [48] and[49]

[22] Crime Scene Photo 29; part of Exhibit P18

[23] Crime Scene Photo 33; part of Exhibit P18

[31] Bail Act 1977, s.4

[32] Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 at p.359

[33] The cases are analysed in Cross on Evidence, Australian Edition at [19165]

[53] Not tendered but referred to in Exhibit P13 at para 3

[76] Little v Law Institute of Victoria [1990] VicRp 25; [1990] VR 257 at p. 262; Flemming, Law of Torts, 9th Ed at p. 673; Halsbury's Laws of Australia, Vol 26 [415-1695]

[77] Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at pp. 282-3,per Isaacs CJ; Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 at p. 380 per Dixon J; Martin v Watson [1974] 1 AC 74 at pp 81-2, per Lord Keith

[79] [1988] NZCA 247; (1989) 3 NZLR 187 at p. 196

[80] Drugs Poisons and Controlled Substances Act 1981, ss 5 and 73(2)

[81] [1940] HCA 41; (1940) 64 CLR 130 at 141; Darker v Chief Constable of West Midlands Police [2000] UKHL 44; [2001] AC 435

[82] Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177 at p. 221 per Lord Hutton and at p. 215 per Lord Hoffman

[83] Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at pp. 211 -3

[84] Darker v Chief Constable of West Midlands Police, supra

[85] Hicks v Faulkner (1878) 8 QBD 167 at pp. 174-5, per Hawkins J

[86] Brown v Hawks [1891] 2 QB 718 at p. 723

[87] Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at pp. 163-165 and 174

[88] Crimes Act 1958, s 465, as to paint tins, etc; Drugs Poisons and Controlled Substances Act 1981, s 81, as to cannabis

[89] Crowley v Glissan (No2) [1905] HCA 31; (1904) 2 CLR 744 at pp. 759-761 per Griffith CJ

[92] Herniman v Smith [1938] AC 305 at p. 319

[95] Sharp V Biggs [1932] HCA 54; (1932) 48 CLR 81 at p. 86; Gonski v McIver [1962] AC 726 at pp. 758 and 767

[96] Mitchell v John Heine (1938_)_ 38 SR (NSW) 466 at p. 469-471

[97] Woon v R [1964] HCA 23; (1964) 109 CLR 529; R v Beljajev [1984] VicRp 57; [1984] VR 657 at p. 662

[98] Mitchell v John Heine ibid; Flemming supra at p. 683

[99] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; 110 ALR 449 at pp. 449-450

[100] [1924] HCA 56; (1924) 35 CLR 275

[102] [1938] HCA 2; (1938) 59 CLR 527

[103] [1961] NSWR 273

[104] to similar effect, see Trindade and Cane, at p. 91

[105] see too Earnshaw v Loy ( No 1) [1959] VicRp 43; [1959] VR 248 at p. 249, per Sholl J

[106] Federal Commissioner of Taxation v Ryan (2000) 201 CLR 19 at p. 128

[109] Wynne v Rosen 391 Mass. 797, 464 NE 2d 1348 (1984); Swick v Liautaud 662 NE 2d 1238 (1996) at 1242-1243, per Heiple J; Kincaid v Ames Dept Stores, Inc 670 NE 2d 1103 at p. 110,per Cousins J;

Logan v Caterpillar Inc [2001] USCA7 176; 246 F.3d. 912 (2001); Washinton v Summerville [1997] USCA7 1167; 127 F.3d. 552 (1997); Murphy v Lynn 118 F.3d (1997)

[112] Limitation of Actions Act 1958, s. 5(1)(a)

[113] Limitation of Actions Act 1958, s. 27(b)

[114] [1998] VSC 71

[115] Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) [1952] HCA 2; (1952) 85 CLR 237 at p. 255, per McTiernan J and at p. 261, per Webb J; cf at p. 250, per Dixon J; and in the Privy Council at (1955) 92 CLR 13 at p. 129 per Viscount Simonds

[116] Enever v The Queen [1906] HCA 3; (1906) 3 CLR 969 at 983 and 989; Attorney General v Perpetual supra at 85 CLR at 250, 252, 284 and 303-4; State of Victoria v Horvath [2002] VSCA 177 at [42]; Jarrett v Seymour (1993) 46 FCR 521 at p. 529 (policeman seconded to the NCA)

[117] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370; cf New South Wales v Lepore; Rich v Queensland [2003] HCA 4 at [74] per Gleeson CJ, at [239] per Gummow and Hayne JJ, at [315-320] per Kirby J and at [341-342] per Callinan J

[118] The words come from paragraph 1 of the "Abstract" which forms part of Submission 19 (Exhibit 1D19)

[120] Abstract, ibid, paras 22 and 23; Mehmed Skrijel on the Scales of Justice, Exhibit 1D 21 paras 149 et seq.

[121] Scales of Justice, paras 159 and 160