(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: