Federal Court of Australia
Scholes v Commonwealth of Australia [2021] FCA 1593
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Applicant's application be dismissed.
2. Unless either party advises the Court by no later than 14 January 2022 that they would seek an alternative order, the Applicant shall pay the Respondent’s costs of the proceeding (including any costs thrown away by reason of the Respondent providing arrangements for the Applicant to call witnesses in Nigeria) other than the costs of the trial on 5-8 October 2021.
3. If either party seeks an alternative order as is provided for in Order 2 the parties shall have until no later than 4:00pm 21 January 2022 to file and serve any written submissions (limited to 3 pages) upon which they may seek to rely in relation to costs.
4. Unless the Court otherwise orders any question of costs so arising be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[1] | |
[13] | |
[20] | |
[20] | |
[24] | |
[28] | |
Mr Scholes’ history with Tola and Tayo Yusuf and the context of his travel to and conduct in Nigeria | [28] |
[62] | |
The balance of Mr Scholes’ case: the absence of his other scheduled witnesses | [99] |
[108] | |
[110] | |
[110] | |
[123] | |
[133] | |
[146] | |
[150] | |
[163] | |
[169] | |
[169] | |
[175] | |
[194] | |
Did Mr Scholes tell Ms Wilson he would accept consular assistance? | [200] |
Did Mr Scholes nonetheless refuse consent to his collection by Pilgrims in Ilero? | [214] |
[271] | |
Post arrival in Lagos until Mr Scholes was given his passport, money and credit cards back | [285] |
[286] | |
[287] | |
[289] | |
[290] |
KERR J:
1 In December 2017, the Applicant (Mr Scholes) and his fiancé Ms Tayo Yusuf (Tayo) were kidnapped in Nigeria.
2 The bus they were travelling in was stopped by an explosion and, the evidence suggests, the driver killed. In any event it is uncontentious that armed men entered the bus and took Mr Scholes and Ms Yusuf with them into the surrounding bush.
3 Demands were made for their release. Mr Kareem Muhammed Alaba (Mr Alaba), Tayo’s stepfather, contacted Mr Abiola Yusuf (Mr Abi Yusuf), Tayo’s brother, who was resident in Melbourne. On or about 1 December 2017, Mr Abi Yusuf notified Victoria Police that Mr Alaba had received a telephone call from an unknown person demanding a ransom in relation to the kidnapping. Victoria Police immediately notified the Department of Foreign Affairs and Trade (DFAT) of that information. There were some communications between the Yusuf family and DFAT regarding the ransom demand, but while DFAT was sympathetic to Mr Scholes’ plight it made clear that it could not assist in facilitating a ransom payment. No issue arises in that regard.
4 It is common ground that on 6 December 2017, Mr Scholes and Tayo were released by their kidnappers following the payment to them of a ransom. Certain events that occurred in the close aftermath of their release are the subject of this proceeding.
5 Mr Scholes’ case is that from 7–10 December 2017 he was falsely imprisoned by the Respondent (the Commonwealth) following his having rejected its offer of consular assistance. He had been taken on the night of 7 December 2017 against his will from the village where he was staying with his fiancé by security contractors that had been engaged by the Commonwealth to collect him and return with him to Lagos, a city in Nigeria. The security contractors were accompanied by heavily armed men. He had agreed to their demands that he go with them only because he had no means to resist. They had declined to allow him to take his fiancé with him. He had been escorted by them (with an overnight stop on the way) to Lagos. After arriving in Lagos he had remained effectively in the custody of DFAT. He had been given no choice but to return to Australia against his will. He had left Nigeria on 10 December 2017 by air.
6 The Commonwealth does not dispute that DFAT engaged private security contractors to rescue Mr Scholes from the danger it had understood him to be in, that he had been picked up by them, and that they had conveyed him to Lagos. It also does not dispute that throughout that period DFAT encouraged Mr Scholes to return to the safety of Australia as he ultimately did.
7 The Commonwealth’s case is that all of its actions were undertaken with Mr Scholes’ knowledge and consent and in a manner consistent with the DFAT guidelines for the provision of consular assistance.
8 As originally pleaded Mr Scholes’ case also involved claims against the Australian Federal Police (AFP) in respect of the conduct of its agents after Mr Scholes had been met by them at the Melbourne International Airport on his return from Nigeria. No more need be said in those regards. On 8 October 2020 the Court dismissed those claims by consent with no order as to costs.
9 Mr Scholes’ pleadings (as also refers to the affidavits that were agreed to stand as his pleadings) filed in this proceedings are, without any discourtesy to him, self-evidently those of a legally unrepresented litigant. Nonetheless, consistently with its obligation as a model litigant the Commonwealth throughout accepted that it understood in the broad the case it was required to answer and, for that reason, did not seek to have Mr Scholes’ pleadings struck out.
10 However because the pleadings did not usefully frame the issues between them, the parties sensibly reached agreement that the trial should be conducted not by reference to those documents but instead by reference to an agreed list of issues.
11 On 15 April 2021 the Court ordered by consent that the trial be set down for hearing on an estimate of 5 days on the basis of the following list of issues:
1. At any time between the evening on 7 December 2017, when the Applicant was collected by the Respondent’s agents from Ilero, and the morning of 8 December 2017, when the Respondent’s agents delivered the Applicant to the Sheraton Hotel in Lagos, was the Applicant’s restrained against his will by the Respondent’s agents?
2. If yes to Issue (1), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
3. At any time between the morning of 8 December 2017, when the Applicant arrived at the Sheraton Hotel in Lagos, and when Mr Scholes boarded his flight to Australia at the Lagos international airport on 10 December 2017, was the Applicant restrained against his will by the Respondent’s agents?
4. If yes to Issue (3), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
5. If yes to any of the above, did the relevant conduct of the Respondent’s agents, in the circumstances, constitute the tort of false imprisonment with regard to the Applicant?
6. If yes to Issue (5), what is the measure of the damages or compensation for that tort to which the Applicant has proven an entitlement?
12 The trial was thereafter listed with an estimate of 5 days and scheduled to commence on Monday 4 October 2021. Case management orders were made providing for the taking of evidence out of ordinary court hours by video link from the parties’ respective witnesses resident in Nigeria.
The trial: procedural adjustments required by covid-19
13 As matters eventuated COVID-19 restrictions prevented the use of the Federal Court in Melbourne to enable the trial to commence on Monday 4 October 2021. In consequence the first day of the trial had to be vacated.
14 Mr Scholes advised he would be able to make arrangements to facilitate his appearing by video link from his home the following day. Both parties consented to the trial proceeding on that basis.
15 The trial commenced on the morning of Tuesday 5 October 2021. Fortunately the video link that Mr Scholes had established proved robust. No technical difficulties of any substance were encountered in the course of the trial.
16 The loss of the first day of the trial fortunately did not necessitate changes being made to the schedule for taking of evidence from witnesses from Nigeria. Both parties co-operated with procedures such that the trial, notwithstanding the loss of the first day, was able to be concluded within the week that had been set aside for it. I am grateful to both Mr Dinelli, counsel for the Commonwealth, and Mr Scholes for their goodwill and cooperation in those regards.
17 One of the cooperative steps the parties adopted to save time was to accept that Mr Scholes’ opening statement (excluding his references to the documents he intended to adduce as part of his case) could stand as his evidence-in-chief. Mr Dinelli made no objection to that course being adopted so long as Mr Scholes gave sworn evidence that what he had stated in his opening was the truth. The imperative to save time was influenced by the scheduling of Mr Scholes’ three overseas witnesses to give their evidence by video link from Nigeria later that evening (Australian time). The parties and the Court were agreed that Mr Scholes’ evidence-in-chief and his cross-examination, as would be relevant to the evidence of his witnesses in Nigeria he intended to call, should if possible be adduced before the Court heard from those overseas witnesses.
18 After Mr Scholes had been sworn, had deposed to the truth of what he had said in opening and confirmed that he had intended simply to recount what he had said in opening as his evidence such that the Court was satisfied he would suffer no disadvantage, it made orders permitting Mr Scholes’ statement in opening to stand as the bulk of his evidence-in-chief. The trial proceeded on that basis. Doing so allowed Mr Scholes’ evidence-in-chief and cross-examination as to the events in which his intending witnesses were to be called to be completed before those witnesses were scheduled to be called.
19 However, as I shall return to later, all three of the residents of Nigeria who Mr Scholes had given notice of intending to call as witnesses, including his fiancé, Tayo, failed to make themselves available for that purpose. Mr Scholes had earlier intimated that he had feared such a possibility might arise but had not applied for an adjournment. Upon it being established that his intending witness would not be giving evidence Mr Scholes indicated that he wished to continue nonetheless. The trial proceeded with Mr Scholes being the only witness in his case.
20 On the basis of the agreement between the parties, Mr Scholes thus opened his case and gave evidence-in-chief as follows:
My initial contact with DFAT was on 6 December 2017 when I was handed the phone by … [my fiancé, Tayo Yusuf’s] stepfather, and I spoke to an unidentified DFAT female officer in a short conversation. I said to her that I did not wish any assistance, nor require any assistance, from DFAT and that I was returning to the village with the stepfather, Tayo, my fiancée and the security men that had rescued us from the jungle.
The caller encouraged me to contact my mother and brother in Australia, which I subsequently did, and I told the woman during the conversation that I believed that Tola [Tayo’s sister] was behind the kidnapping and reiterated that I did not require DFATs assistance.
She asked me if she could ring in the morning; I dismissed it with an unenthusiastic, “Yes, if you want.” That was the end of the phone call.
The following morning we departed the hotel and returned to the village of [Ilero]. At or about 8.30 hours the stepfather handed to me the phone again, saying the same DFAT female had rung again. I again reiterated to her that I did not require any assistance. She said that – she said they had called for a rescue convoy come and get me – that it had left Lagos and would be there around midday, I said “Why?”
I said I did not require their assistance, and I said I do not have any choice in the matter, and she said no. And I said I do not have any money to pay for the rescue, and that she said she would ring back within an hour to discuss that issue. She then made spurious allegations against my fiancée, Tayo, and the Yusuf family in general, and also claiming the stepfather was not who I believed he was. She claimed my life was in danger if I remained with the Yusuf family.
I told her she was talking rubbish and all the information had come from Tola who I believed was behind the hijack. She said not to discuss our conversation with the Yusuf family – in particular, Tayo. I ended the call. At or about 9.30 the stepfather again handed me the phone, saying the same woman was calling. I told the caller I was not interested and I did not require their assistance. Again, I attempted to remain pleasant with her, reiterating I did not require DFATs assistance. She again made spurious allegations against the Yusuf family, and once again I terminated the call.
…. For the remainder of 7 December 2017 there was no further contact between myself or any other Australian official or authority…. For the remainder of the day Tayo, and myself and other members of the Yusuf family went around [Ilero] shopping, having a haircut and shave, and thanking family members within the village for their support and concern during the horrific events that had overtaken Tayo and myself.
At or about 2230 hours three vehicles arrived in front of the Yusuf home. They assumed they were the convoy that DFAT had sent. Upon meeting the team leader, who introduced himself as Muhammad, I protested, stating I did not require DFATs assistance. When he stated that he had been ordered by my government to come and pick me up and convey me safely to Lagos I continued protesting. He stated, “We have to leave immediately, because [Ilero] is not a safe place” for me to remain in. I said, “Why?” I continued protesting, saying that if I was going Tayo was coming with me. A short time later he came back and said, “We are – we only have to – we” – sorry. “We only have orders to pick you up at this time.”
Between eight and 10 heavily armed men with AK-47 shotguns appeared to be moving towards myself and Muhammad.
He demanded that I get into the vehicle and, to avoid any further arguments, I simply gave up when I realised whatever I wanted was not going to occur. I was apprehensive about travelling at night; apprehensive about being in – under the control of these people, considering that I had told DFAT that I was not interested in their services.
Some 10 to 20 minutes into the drive Muhammad turned around and said to me, “We’ve made a mistake. We can’t go back. We’ve gone too far.” I continued protesting all the way to Ibadan, but to no avail. Muhammad asked me if I had any money to pay for the hotel. I said, “I have nothing.” And I continued protesting, realising nothing was going to happen in my favour, or change the mindset of Muhammad.
In the morning I got woken up by Muhammad knocking on the door, and he told me that we had – “We are leaving shortly for Lagos.” I quickly packed myself up and readied for the departure, still protesting. When we reached the outskirts of what I believe is Lagos I had a massive panic attack, anxiety, and the onset of PTSD. I demanded that Muhammad stop the vehicle so I could get out and vomit. I dry-retched and felt terrible. Once my nerves had settled I was sitting back in the vehicle; Muhammad asked how did I feel and I said, I do not want to be with him. I wanted to go back to Tayo. ….Muhammad, who goes by another name in his affidavit, said that event occurred the previous day, and I say it didn’t.
We later stopped briefly for breakfast and a toilet stop. Muhammad became concerned when I wished to go to the toilet by myself, and one of the police officers accompanied me the toilet…. We later stopped for fuel and I was left in the vehicle alone. I realised there was an opportunity to steal the car and drive back to [Ilero] and my fiancée, Tayo.
When Muhammad, the driver, hopped back into the vehicle I told Muhammad what I had planned to do. He turned around and said, “I’m glad you did not do that, because people in Canberra would have been very upset.”
There [were] numerous phone calls made by Muhammad. On two occasions he handed me the phone. One of the callers identified himself as Greg from DFAT. The other identified himself as Paul Lehmann.
Upon arrival at the Sheraton Hotel I waited in the vehicle, as I was told to do by Muhammad, as it was surrounded by heavily armed police that had escorted us from [Ilero] whilst Muhammad located a DFAT officer. Upon entry into the hotel lobby I was introduced to Paul Lehmann, the Australian High Commission of – Commissioner for Nigeria. ….he [says] that meeting didn’t occur there. I again beg to differ.
We had a preliminary introduction and I realised that I had been taken from the safety of my in-law’s village, [Ilero] and was no longer – had any control over what was about to happen to me, having been placed, now, in an alien environment where I was totally dependent on the respondent. I had no personal possessions; no identify; no money; absolutely nothing, and my phone was not charged at that point, nor did I have credit to make any phone calls.
Mr Lehmann made a booking for the hotel room where I was going to stay, and I was also introduced to the manager at the hotel, Andrew, who was from Adelaide. The three of us took the lift to the fifth floor of the hotel and I was shown to my room by Paul Lehmann and Andrew. Paul Lehmann and I spent what I believed was some 30 to 60 minutes discussing what had occurred. I expressed my concerns and told him about my idea of stealing the car and returning to [Ilero] and my fiancée, Tayo Yusuf. …, he disputes that conversation in his affidavit. I say otherwise.
He said to me that I should think about my safety and return to Australia. I said I wasn’t interested, and I wanted to return to [Ilero] and my fiancé Tayo. Mr Lehmann then informed me that Brian Taylor was coming from Abuja with my passport and other stuff, to which I was completely unaware of, because I had not informed DFAT where any of my personal property was.
Mr Lehmann requested that I did not leave the room and did not go down to the lobby and mingle with other guests, or have – or go to the drinks night that Andrew, the hotel manager, had invited me to…. As I was so tired and missing Tayo, I wasn’t really interested.
Upon leaving, Paul Lehmann gave me 5000 – 15,000 naira [equivalent to about $A50.00], his contact details and that of Brian Taylor and the High Commission in Abuja, and the name of a female officer I was talking to; Cleo Wilson.
Upon Mr Lehmann leaving, I rang Cleo Wilson protesting about what had occurred and told her I considered stealing the car, of which she notes in the DFAT emails. …She again reiterated the advice given by Paul Lehmann. I protested again, given I was in a hostile environment; I knew nobody; had no idea where I was in Lagos; I had no money; no identity, and I was now totally dependent on DFAT.
I rang Tayo on the hotel phone and explained where I was; what had happened, and I said to her that I wanted to come back… but there was nothing either of us could do about what had happened. I said, “Don’t worry.”
…. I asked Paul Lehmann about the visas, how to go about applying for her, and the [kids] to come and see me in Australia. I said I was going to have a shower and go to sleep and there was some other DFAT officers coming from Abuja that afternoon. I had a shower and went to sleep.
I was awoken by a telephone call on the hotel telephone. The caller identified himself as Brian Taylor from DFAT. After a brief discussion, Brian Taylor came to the room, we sat down and had a brief discussion. I informed him of being removed from safety of [Ilero] and brought to Lagos against my will.
We sat down in the beer garden and continued our discussion where he returned the property.
I explained to him what had happened, the hijacking, the kidnapping, and being held captive in the jungle and a trip into Lagos. I also explained to him that I was going to steal a car and return to the Yusuf family village and my fiancé, Tayo.
I formed the opinion…even though I believed Brian Taylor was sympathetic to my situation, he was following DFATs program of returning me to Australia no matter what I said. After dinner that evening, realising nothing I would say or do would change the situation, with Brian’s assistance, I changed my departure airline ticket to return to Australia. Brian Taylor also organised that afternoon a meeting with Nigerian DSS the following day. Some time later, after further conversations, Brian Taylor walked me back to my room, upon saying goodnight, I retired to bed after speaking to Tayo.
21 It is unnecessary to refer verbatim to Mr Scholes’ evidence-in-chief regarding the subsequent events that took place. Towards the conclusion of the hearing, Mr Scholes accepted that his contention that he was restrained against his will by the Commonwealth could not be maintained beyond the time when his “property” (passport, credit card, and money in the sum of $1000 USD) had been returned to him by Mr Brian Taylor (Mr Taylor).
22 The balance of Mr Scholes’ evidence-in-chief included that he was born in September 1959. He works as a nurse at the Royal Melbourne Hospital. He had travelled to Nigeria in mid-September 2017. Regarding the circumstances of his kidnapping, he evidence-in-chief was:
[Tayo Yusuf and I] boarded the bus in Ibadan on 28 November, at around 11.30 in the evening, to travel to Abuja, to go and recover my property from Tola [Tola Yusuf, Tayo’s sister] after discussions with her broke down and she refused to return my property and passport money and whatever else was left at Keffi when we came down for a family religious gathering in Lagos. During the night…. around 1 o’clock in the morning, the bus was stopped, what I thought was originally a tyre blowout, then people screaming, and kidnappers burst into the bus and they grabbed myself, hauled me out, took me into the jungle, then brought me back, and that’s when I re-met with Tayo and they took the two of us into the jungle and said we had been kidnapped.
…When I was under captivity, that’s what they said they were or they would sell us onto – onsell us to Boko Haram and Hezbollah…. And Tayo did most of the talking to the terrorists, not – or the bandits, not me, so – because I was without my blood-pressure medication, and… the two of us looked after each other and kept each other alive in the circumstances. And the bandits had said that they had blown the front of the bus up. In all the confusion I didn’t bother whether that was the truth or not, because I wasn’t standing around going to argue with somebody pointing an AK-47 at me. Then negotiations started up to get our release with ransom payments…
It is uncontentious that he and Tayo were held for 8 days and 8 nights by their kidnappers before they were released after the payment of a ransom.
23 Mr Scholes’ evidence is that after their release he and Tayo were collected by Tayo’s stepfather, Mr Alaba, and two members of the Ilero community, one of whom he understood was a DSS officer. Prior to meeting Mr Taylor in the Sheraton Hotel his evidence is that he had not informed DFAT where his possessions and passport were, other than that he didn’t have them.
Mr Scholes’ limited concession
24 I am satisfied that Mr Scholes’ concession as I have referred to at [21] above was fully justified. So long as Mr Scholes remained without his money, credit card and passport perhaps it may have been plausible for him to contend that he had remained in DFAT’s custody notwithstanding he had been brought to Lagos and had been accommodated in a hotel that DFAT was meeting the costs for. It might be accepted that it would have been impractical to the point of irresponsibility for Mr Scholes to have left his accommodation in those circumstances.
25 However, after having acknowledged in cross-examination that there was nothing to justify any suggestion that he had been subject to a restraint, physical or economic, as would have stood in the way of him leaving the hotel where he was staying after that time had he wanted to return to Ilero (or to have remained in Lagos having invited his fiancé to join him there), Mr Scholes was undoubtably correct to recognise that a finding by the Court that he had remained in DFAT’s custody against his will beyond that point of time was not open on the evidence.
26 All of the evidence relating to events after that time is consistent with Mr Scholes having then been free to act as he chose. He, inter-alia, brought forward his scheduled return to Australia using his own credit card, paying a supplement for that purpose. In light of Mr Scholes’ concession that he would not press his case of false imprisonment beyond that point of time it is uncontentious that Mr Taylor helped Mr Scholes arrange his voluntary departure including assisting him to resolve a difficulty Mr Scholes encountered in getting through Nigerian immigration and customs on his exit after it was discovered that his visitor’s visa had expired.
27 However, out of caution, I interpolate that my conclusion that Mr Scholes’ concession was justified and should be accepted should not be construed as a finding on the Court’s part that his later conduct was inconsistent with the case he continued to press. Logically Mr Scholes may have initially been compelled against his will to travel to Lagos, but was later persuaded, in the different circumstances then applying, that it would be prudent for him to voluntarily follow the advice DFAT was then offering him.
Mr Scholes’ history with Tola and Tayo Yusuf and the context of his travel to and conduct in Nigeria
28 Much of Mr Dinelli’s extensive cross-examination of Mr Scholes involved counsel adducing evidence from Mr Scholes relating to the circumstances in which he first met certain members of the Yusuf family and had later travelled to Nigeria where he had formed a relationship with his fiancé, Tayo. As those circumstances became the subject of counsel’s closing submissions as to Mr Scholes’ credit it is convenient to set out in some detail the evidence Mr Dinelli adduced from Mr Scholes in those regards.
29 Mr Scholes’ evidence is that he met Tayo’s sister, Ms Tola Yusuf (Tola), in or around mid-2013. At that time they both were undertaking a practical placement required for a nursing course they were attending at Victoria University. He had met Tola’s brother earlier in 2012 or 2013 when they also had been studying together so that they had some pre-existing familiarity. He had given Tola a lift to their common practical placement over a period of about two weeks. During that time they struck up a platonic friendship but their contact with each other came to an end when the placement was over. Mr Scholes thought that might be explained because she had become married after returning to Nigeria.
30 In 2015 their paths crossed again through Facebook. Tola was then living in Nigeria. Mr Scholes and Tola resumed communications. Tola told him that she was coming back to Australia. They discussed where she might live. He told her that she could stay at his place if she needed somewhere to live. Before Tola returned to Australia she asked Mr Scholes for money for various reasons. Those circumstances included when she had informed Mr Scholes that her father had become sick during the Ebola pandemic. Tola had struck him being an honest person. He had sent her around $20,000 in total. That included about $200 for her father’s funeral in Nigeria.
31 In mid-2016 Mr Scholes was sent a Facebook message from Tola informing him she was coming back to Australia. He offered to pick her up from the airport. She arrived with a young girl, ‘Princess’. Tola initially referred to Princess as her sister’s child but later told Mr Scholes that she was her own daughter. Mr Scholes’ impression of Tola at the time of her arrival was that she had been withdrawn and “petrified”. She was not the same bright bouncy chirpy girl he had come to know. He speculated that her changed personality may have been the result of her having been beaten by, and otherwise suffered at the hands of, her former husband.
32 Tola and her daughter moved into his house. Mr Scholes continued to support Tola financially. He put around $10,000 into a small business importing clothes from Nigeria that she had tried to establish.
33 They lived together for around 10 months, in Mr Scholes’ words, as a “non-sexual family unit”.
34 In early 2017 Tola spoke of wanting to go back to Nigeria. After six years of university studies Mr Scholes was exhausted. He had become interested in Nigeria as a place he might retire to.
35 Tola “sold him” on the idea of a holiday on the beaches in Lagos, at “Satellite Town”. She said she wanted him to meet her family to allow them to thank him for looking after her in Australia. She told Mr Scholes a visa would cost $200 but she could arrange a longer-stay visa for an extra $1000. He had given her that money. Mr Scholes made bookings with Flight Centre in Werribee to fly to Lagos on 14 September 2017 and to return on 26 January 2018. He and Tola then flew there with Princess armed with gifts from Tola’s brother for the family.
36 After Tola had assisted him through customs in Lagos they were met by Tola’s mother Mrs Titilayo Yusuf (Mrs Yusuf); Mr Alaba; a friend of Tola’s, ‘Sami the Soldier’; and a driver. To Mr Scholes’ surprise they did not then travel to Satellite Town. Instead Mr Scholes found himself travelling with that small group to Ilero, the Yusuf family’s home village.
37 After four days with the Yusuf family in Ilero, Tola informed Mr Scholes that they (Tola, Tayo and Sami) would be going to Keffi, a town about 2 hours south of Ilero. Sami lived in Keffi.
38 Sami drove Mr Scholes, Tola, and Tayo to Keffi. On their arrival Sami dropped Tola off with a man she introduced to Mr Scholes as “Uncle Bill” and took Tayo and Mr Scholes to stay at a hotel in his village. Tayo and Mr Scholes lodged at the hotel for two days. They then moved to Uncle Bill’s home. Mr Scholes then, or soon afterwards, discovered that Uncle Bill was not Tola’s uncle. He was her boyfriend. His name was Ade.
39 Mr Scholes denies having been bothered by discovering that Tola had a boyfriend. His evidence in cross examination is that he had enjoyed having Tola stay with him at his home in Australia but he hadn’t been interested in having a relationship with her beyond having someone to talk to after years of living alone with his head in his studies. He had also enjoyed playing with her young daughter, Princess. She had called him “Daddy”. However for the trip to Keffi, Princess had remained with the Yusuf family in Ilero.
40 Mr Scholes, Tayo, Ade and Tola lived together in Ade’s house in Keffi for around 6 weeks. At some point during that period he and Tayo became close. By the end of their stay in Keffi they had established a relationship. Mr Scholes describes his relationship with Tayo as by that time already “very strong, very caring and very loving”.
41 In late October 2017, Mr Scholes, Tayo and Tola travelled back to Ilero. They did not stay long in Ilero. The Yusuf family originally had come from Lagos. In late October 2017 Mr Scholes travelled to Lagos with the Yusuf family to attend a religious festival.
42 However, by that time his friendship with Tola had soured. In the course of conversations with the Yusuf family Mr Scholes had discovered that Tola had lied to him in obtaining money from him including telling falsehoods about her father’s ill health and death. Tola’s behaviour and attitude towards both Mr Scholes and the other members of the Yusuf family had changed after this came to light.
43 Mr Scholes proposed to Tola that when she returned to Australia and resumed work as a nurse she would start paying off the money he had given her. Mr Scholes referred to the amount they discussed as $20,000. In cross-examination he conceded that if all of the assistance he had given Tola, including help for her business and accommodation, was added up the total of the financial assistance he had provided her might be as much as $60,000.
44 In addition Mr Scholes had also given Tola money in Nigeria after they had arrived at Keffi. That included some funding (to which Ade had also contributed) for her to undertake a beautician’s course.
45 Mr Scholes began “negotiations” with Tola to retrieve his money, passport and credit cards. He had given those to Tola for safe keeping. As events turned out Mr Scholes’ property had been left behind in a locked room with other valuables when they had left Keffi for Ilero on the way to the religious ceremony. However Tola had given him numerous different explanations as to where his possessions were.
46 I interpose that in cross-examination Mr Scholes acknowledged that later he had also discovered that unbeknownst to him Tola had not obtained for him the long term visa for which he had given her $1000 (so he only had a short term visa – which he inadvertently overstayed) and that she had also used some of the $2000 he had brought to Nigeria as “emergency money” to buy a generator.
47 The last time Mr Scholes saw Tola was at the religious festival in Lagos.
48 After the festival Mr Scholes returned to Ilero with other members of the Yusuf family. He lived with Tayo and the Yusuf family at their family home for about a month. He spent a lot of time with Tayo and her two children, a daughter who was around 6 years old at that time and a younger son about 2 years old. Mr Scholes had given Tayo’s children affectionate nicknames “Spider” and “Bulldozer” respectively. He had never met or enquired as to their father’s identity. Tayo had had nothing to do with him.
49 Mr Scholes was anxious to get his possessions back.
50 On 28 November 2017 Mr Scholes and Tayo left Ilero. They travelled with Mrs Yusuf, (who Mr Scholes had come to refer to as Mumma Yusuf) to Ibadan in order that he and Tayo could catch a bus to Abuja. Mr Scholes wanted to go to Abuja because the village elders in Ilero had made arrangements with their relations in Abuja “to go and retrieve his passport and possessions from Tola”.
51 A neighbour of the Yusuf family, a local pastor, had driven them to Ibadan. After they arrived at Ibadan in the afternoon, Tayo and Mrs Yusuf paid for two tickets on a bus scheduled to leave for Abuja at 9:30pm. The ABC bus company Mr Scholes and Tayo had reservations to travel on was a premier local transport company. Mrs Yusuf and the pastor then returned to Ilero leaving Mr Scholes and Tayo to wait for the bus. Mr Scholes was the only expatriate in the crowds of people waiting at the terminal for busses that were coming and going.
52 The ABC bus to Abuja left Ibadan two hours behind schedule at around 11:30pm. As Mr Scholes gave in evidence-in-chief, it is uncontentious that that bus had been stopped and he and Tayo were kidnapped and held in the bush by their captors for 8 days. After a ransom was paid they were released by the side of a road from where Mr Alaba and two others from Ilero, one of whom worked for the DSS (one of Nigeria's police services), picked them up.
53 Their release came as a massive relief for Mr Scholes. He and Tayo were driven by car to a local hotel. There was time only for a brief discussion about the kidnapping before Mr Scholes and Tayo were shown to their room for the night.
54 I will return to the evidence Mr Scholes gave in cross-examination as to his dealings with DFAT as is in dispute but in so far as his history with Tola and Tayo is concerned, which is the subject of this aspect of his evidence, the next relevant circumstance is that Mr Scholes then returned with Tayo to stay with the Yusuf family in Ilero. On Mr Scholes’ account he was with the Yusuf family outside of their house for a social gathering on the night of 7 December 2017 when three cars containing armed men arrived. His recall is that one of the men introduced himself as “Muhammed” and informed him that he had instructions from the Australian government to take him to Lagos.
55 Mr Scholes’ evidence is that from the outset he told ‘Muhammed’ that he did not want consular assistance and did not want to go with him. However, “because there was 12 – 10 to 12 – eight to 10 guys standing around with AK-47s and shotguns [he] wasn’t going to argue with them.” Having resigned himself to having no alternative he had asked Muhammed if Tayo could come too. He did not want to leave her behind. Muhammed had made a phone call and came back to him later and said no. Having no choice Mr Scholes had complied with Muhammed’s demand that he travel with them.
56 Once in Lagos and lodged at the hotel that DFAT had arranged for him to stay at Mr Scholes had spoken to the Australian High Commissioner to Nigeria, Mr Paul Lehmann (Mr Lehmann), about what had happened. He told Mr Lehmann that he was disappointed that his fiancé Tayo had not been allowed to come with him. He told Mr Lehmann that they just survived 8 days and 8 nights in the jungle and he was upset that Tayo had been separated from him. Mr Lehmann had explained that “they couldn't pick up Tayo because she was not an Australian national”.
57 Told that it would be Mr Lehmann’s evidence that he had done so, Mr Scholes denied asking Mr Lehmann for a favour in arranging a “fast track visa” for Tayo. Mr Scholes accepted that he had told Mr Lehmann that Tayo was his fiancé and had asked him about the procedures for pursuing a visa for her and her children to come to Australia. He had asked Mr Lehmann if in light of the circumstances of his kidnapping Mr Lehmann would “go as a referee” for him.
58 Mr Scholes’ evidence in cross-examination is that he told Mr Lehmann that he thought Tola had been involved in the kidnapping. He had later repeated his concern that she had been involved to police both in Nigeria and in Australia.
59 After arriving back in Australia Mr Scholes moved in with Mr Abi Yusuf. While he was still living at Abi’s home on 8 January 2018 Mr Scholes sent a letter to the Australian High Commissioner in South Africa (Exhibit R1) “in support of Tayo’s application for her and the two children to come to Australia on a long stay tourist visa”.
60 Asked in cross-examination why Tayo had not been granted that visa, Mr Scholes answered “because they said that the relationship wasn’t genuine and for other information on departmental files”.
61 Mr Scholes still stays in regular contact with Tayo. They speak every day except when rainstorms or other conditions prevent it. Since Mr Scholes resumed working in early 2018 he has sent Tayo $200 every fortnight. He also has paid for Spider and Bulldozer’s school fees and birthdays along the way.
Other evidence given by Mr Scholes in cross-examination
62 After Mr Scholes and Tayo’s release they and his rescuers took lodgings overnight in a local hotel.
63 Mr Scholes acknowledged that after they had checked in Mr Alaba had given Mr Scholes his phone so that he could speak to a woman from DFAT. Mr Scholes accepted that he later came to know that person was the Deputy Head of Mission, Ms Cleo Wilson (Ms Wilson). Ms Wilson had asked him where he was. Mr Scholes had not been able to answer her question because he did not know.
64 Ms Wilson asked him if he was okay. He assured her that he was. Mr Scholes rejected that Ms Wilson had asked him if he needed medical assistance. He had simply assured Ms Wilson that he was okay. He had told Ms Wilson he was planning to go back to Tayo’s village and stay with the Yusuf family. Ms Wilson had discouraged him doing so. Ms Wilson had offered him consular assistance on behalf of the Australian Government to get to a safe location. He had refused that offer. Notwithstanding it having been put to him that Ms Wilson would give a different account he was unshaken in that regard. However he had agreed that Ms Wilson could ring him again the next morning. She had done so.
65 Mr Scholes denied that he had the WhatsApp application on his phone. He denied having sent a WhatsApp message to Ms Wilson to inform her he was safe in the hands of Nigerian DSS and would be moved to a safer location.
66 Mr Scholes denied having spoken to Ms Wilson around mid-day the following day. Mr Scholes’ evidence was that the only times he spoke to Ms Wilson on 7 December 2017 were twice, first at 8:30am and second at 9:30am. They spoke on Mr Alaba’s phone. Mr Scholes’ evidence is that he did not and could not have received any texts from Ms Wilson because the battery on his phone was flat. For the same reason he had not and could not have sent any texts to her later in the day. In any event he had no knowledge of her contact details.
67 In respect of their conversations on the morning of 7 December 2017 Mr Scholes’ evidence was that Ms Wilson spoke to him about his personal safety. She suggested he should make his way to either Abuja or Lagos. Ms Wilson informed him that if he needed DFAT’s assistance there would be a cost involved. Mr Scholes’s evidence was that he had told her he couldn’t afford that and in any event he had made it clear that he was not interested in leaving Ilero and he did not require DFAT’s assistance. He denied having spoken to Ms Wilson about the possibility of Tayo accompanying him to Lagos from Ilero.
68 He robustly denied, notwithstanding Mr Dinelli forcefully challenging him on the point, that he had ever accepted DFAT’s offer of assistance.
69 Mr Scholes denied that Ms Wilson told him that she was arranging for someone to pick him up. He denied that Ms Wilson advised him that as a westerner who had already been kidnapped, he was at a high risk of being further targeted.
70 Mr Scholes’ evidence is that Ms Wilson made concerning claims about his fiancé Tayo and his stepfather Mr Alaba. She suggested to him that his life was in danger while he remained with Tayo and the Yusuf family. She told him that there were “many strange features to this matter and everyone remained a suspect”. Mr Scholes’ evidence is that he dismissed the concerns Ms Wilson had about the Yusuf family in Ilero as “rubbish”. He denies speaking to Ms Wilson again before he was collected (on his account against his will) and brought to Lagos.
71 Mr Scholes acknowledges being picked up from the Yusuf household by Pilgrims Africa Limited (Pilgrims) later that night. It is uncontentious that Pilgrims is the private security company DFAT engaged.
72 Mr Scholes’ evidence in cross-examination was that the village of Ilero is in the centre of a collection of other local villages. He learned to find his way around Ilero without ever coming to know the name of the street in which the Yusuf home could be found. His evidence was that he “guessed” that if someone wanted to find a specific house in Ilero “you would ask your way around”.
73 Mr Alaba had been with him at all times on the evening of 7 December 2017. For that reason he knew that Mr Alaba had not given Pilgrims any directions to the Yusuf household. Had that happened Mr Scholes would have heard him speak on the phone to them. He denied that Mr Alaba ever left the house to meet the Pilgrims team. Mr Scholes’ evidence as to how he supposed Pilgrims could have found the house was that he assumed that Pilgrims had gone to the local police station and had got directions to the Yusuf family’s residence from them.
74 Mr Scholes’ evidence was that the Pilgrims vehicles arrived at the Yusuf family home at around 10:30pm. Mr Scholes and the Yusuf family were then outside for a social gathering at which several of the local community, including the pastor who had driven him and Tayo to Ibadan, were attending.
75 A man from Pilgrims left his vehicle. He introduced himself to Mr Scholes as ‘Muhammed’. Mr Scholes later learned his name was in fact Mustapha Oshoke Aliyu (Mr Aliyu). Mr Aliyu told Mr Scholes that he had been ordered “by [Mr Scholes’] government” to pick him up and convey him to Lagos.
76 Mr Scholes found himself surrounded by armed men with shotguns and AK-47s. At the time he thought they were all police. He accepted in cross-examination that Mr Aliyu may not have been armed but at the time he had believed that all of them were.
77 Mr Scholes’ evidence is that he told Mr Aliyu that he did not want to travel with him to Lagos.
78 All of the Yusuf family were protesting. Tayo was crying and saying “no”. So too was Mrs Yusuf.
79 Mr Scholes’ evidence is that in the face of armed men with their guns openly displayed he had no choice but to go with the Pilgrims team. When it became clear that he had no choice, he asked Mr Aliyu whether Tayo would be allowed to travel with him. He told him he did not want to leave his fiancé behind.
80 Mr Aliyu had made a phone call and had come back later and told him she was not included in his mission.
81 Mr Scholes’ evidence is that, compelled by circumstances, he got into a Pilgrims’ vehicle with Mr Aliyu. The three cars left the Yusuf house in a convoy. A car full of heavily armed men drove in front and one followed behind. He was in the middle vehicle. Mr Scholes heard Mr Aliyu speaking to someone who announced himself as ‘Greg’. Mr Scholes’ evidence is that if there was no-one in DFAT with that name nonetheless that was his recall. Mr Aliyu had also spoken to other people on his phone.
82 At some point after departing the Yusuf family home Mr Aliyu turned around to Mr Scholes saying to him “they” had made a grave mistake (which I take to be a reference to Pilgrims failing to allow him to bring Tayo with him), but that it had gone too far and they couldn’t turn back.
83 Mr Dinelli put to Mr Scholes that his evidence of that conversation was not the truth. Mr Scholes however maintained adamantly that it had been said to him by Mr Aliyu.
84 Later Mr Aliyu had informed Mr Scholes the convoy was at risk of running out of petrol. The convoy stopped and its passengers had stayed overnight at a hotel. Mr Scholes did not know where that hotel had been. The next morning (8 December 2017) the convoy resumed its trip to Lagos and stopped at a service station somewhere for breakfast on the way.
85 Mr Scholes overheard some discussion between Mr Aliyu and DFAT officials about cancelling a television interview during the trip to Lagos.
86 Eventually the convoy had arrived at the Sheraton Hotel in Lagos. Mr Aliyu introduced Mr Scholes to Mr Lehmann, the then Australian High Commissioner for Nigeria. Mr Scholes had thanked Mr Aliyu “for doing the job he had to do”.
87 Mr Scholes recalls, notwithstanding having been informed that Mr Lehmann would give a different account, that he and Mr Lehmann met in the lobby. Mr Lehmann had arranged for Mr Scholes to be booked into the hotel. Later he and Mr Lehmann had gone to Mr Scholes’ room on level 5 where, despite Mr Dinelli informing him that Mr Lehmann’s recall was that their meeting lasted for only 15 minutes, Mr Scholes recalled them having a long discussion. Cross-examined as to whether he had complained to Mr Lehmann that he had been brought to the Sheraton against his will, Mr Scholes gave evidence as follows:
I said I was – I was disappointed with the way that I was taken out of the village – that I was going to steal a car and return because I didn’t want to be there.
You didn’t say to him that you were at the Sheraton, though, against your will at all, did you?---I said I was disappointed with what had happened. I wanted to be with my fiancée, and I wanted to go back where – Ilero, and I was not happy with the situation. And, as I said yesterday, there was little I could do about it because I had been taken out of Ilero against my will and the relative safety of the village and put in an alien environment which I couldn’t do much about.
88 Mr Scholes informed Mr Lehmann of his belief that Tola had been involved in his kidnapping. Cross-examined as to his evidence-in-chief that Mr Lehmann had stated that DFAT had acted upon fundamentally flawed information Mr Scholes gave the following answer:
…Mr Scholes, Mr Lehmann never said to you that DFAT had actually upon fundamentally flawed intelligence?---He said that they had acted on information that, in the light of what I had said, was not true.
89 It is uncontentious that Mr Lehmann gave Mr Scholes the contact details for two other DFAT officials: Mr Taylor and Ms Wilson. He told Mr Scholes that Mr Taylor was coming from Abuja to meet him.
90 Mr Scholes concedes that before Mr Lehmann left he told him that he was grateful for what the High Commission had done for him – qualifying that as follows:
Now, during that discussion you also said to him, though, that you were grateful for what the High Commission had done for him (sic)?---As grateful as much as one could be that they had been taken out of the safety and plonked in the middle of the city; you had no idea of where to go; you had no identity, and I was very cheesed off with everything.
91 After Mr Lehmann left the Sheraton Mr Scholes had called Ms Wilson, had a shower and gone to sleep.
92 His cross-examination in respect of the conversation he had with Ms Wilson was as follows;
Now, did you – did you speak to her – did you mention to her, when you spoke to her about your kidnapping experience, that is, the experience that you had had in the countryside in Nigeria?---No.
Well, you didn’t say anything to her about being forced by Pilgrims to come to Lagos, did you?---I said I wasn’t going to steal a car and return to Ilero and to Tayo.
But you didn’t say that you had been forced to come to Lagos, did you?---I said I was unhappy with what had happened and that I was going to steal the car and drive back to Ilero and to Tayo.
Well, she never – and Ms Wilson never said to you that she had acted on any fundamentally flawed information, did she?---She said that she had acted on information from Tola and others and after speaking with me she said they were getting mixed messages.
She didn’t describe it, though, at any time, as fundamentally flawed, did she?---Not the words to that effect, no.
In documents that you’ve prepared for this case, though, you have said that Cleo Wilson conceded to you personally that the information was fundamentally flawed, haven’t you?---I said that – I wrote that. That’s my interpretation of what she was saying that the information that she had was flawed once she had spoken with me about what had happened.
Ms Wilson never apologised with you – never apologised to you about not bringing Tayo, did she?---After I told her that Tayo was my fiancée she was disappointed that we had been separated.
And she also told you that any assistance provided by the Australian Government was limited to Australian citizens, didn’t she?---Yes, because that is the – the mantra of DFAT.
Well, you know it’s more than a mantra, it’s a policy, isn’t it, Mr Scholes?---Yes, I am aware of that.
93 Mr Taylor arrived at the Sheraton at about 3:00pm or 4:00pm on 8 December 2017. He and Mr Scholes sat in the Sheraton’s beer garden to discuss events. Mr Taylor asked him how he was. They discussed the kidnapping. Mr Scholes told Mr Taylor that he wanted to meet with the DSS (Nigerian police) to report what had happened. He repeated to Mr Taylor his belief that Tola was involved.
94 Notwithstanding Mr Dinelli putting to Mr Scholes that each of Mr Lehmann, Mr Taylor and Ms Wilson had asked him whether he needed medical treatment Mr Scholes’ evidence is that none of them had ever done that.
95 Cross-examined regarding whether he had taken the opportunity to complain to Mr Taylor that he been taken from Ilero against his will Mr Scholes gave the following evidence;
Now, you didn’t say to him that you had been forced to get into the car in Lagos, did you?---I said I was upset with what had happened, and that I wanted to go back…
You did not say to Mr Taylor, at any time that afternoon, that you had been forced by Pilgrims to come to Lagos, did you?---I said words to the effect that I was not happy with what had happened.
96 I interpose that it is uncontentious that in the course of Mr Scholes’ and Mr Taylor’s discussions in the Sheraton’s beer garden Mr Taylor had returned to Mr Scholes his passport, his credit card and $1000 USD in cash all of which he had collected, on Mr Scholes’ behalf, from Tola.
97 It is also uncontentious that although Mr Scholes, on his account, told Mr Taylor that he wanted to go back to Ilero later in the evening, he had later used Mr Taylor’s phone to call the Flight Centre office in Werribee, Australia and made voluntary arrangements to bring forward his scheduled flight to leave Nigeria.
98 In light of Mr Scholes’ concession that he does not press any claim to have been held against his will past the point of time when his possessions were returned to him by Mr Taylor it would be otiose to detail all of Mr Scholes’ evidence past that point as he gave in cross-examination. That evidence which I take to have relevance to the claims Mr Scholes’ continues to assert is as follows:
Mr Scholes acknowledges that during his interview with the Nigerian DSS he made no claim of having been taken against his will by Pilgrims from Ilero.
Mr Scholes acknowledges that on his departure from Lagos to Melbourne he thanked Mr Taylor for the job “that had to be done” and gave Mr Taylor a hug out of appreciation for him listening to him.
Mr Scholes acknowledges that he had earlier claimed that the AFP officers who had collected him on his arrival in Melbourne from Nigeria had had falsely imprisoned him. He acknowledges that he had earlier consented to those claims being dismissed.
Mr Scholes acknowledges that he made no claim to have been taken against his will by Pilgrims from Ilero in the course of his formal interview with the AFP on 13 December 2017. Mr Scholes’ explanation for that is that he earlier had complained to the AFP’s Family Liaison Team officers who picked him up at Tullamarine airport. His formal interview was conducted under strict arrangements limited to his kidnapping which had prevented him making such a complaint at that time.
Mr Scholes acknowledges that the first time he put anything in writing to complain about his account of having been taken against his will by Pilgrims from Ilero was in his letter of 13 December 2017 to the High Commissioner in South Africa in which he had urged that Tayo and her children be granted a visa to visit him in Australia.
The balance of Mr Scholes’ case: the absence of his other scheduled witnesses
99 As foreshadowed in general terms, Tayo, Mrs Yusuf, and Mr Alaba were scheduled to give evidence on Mr Scholes’ behalf in this trial on the evening of Tuesday 5 October 2021 by video link from Nigeria. All failed to make themselves available for that purpose.
100 Because Mr Dinelli submits that the Court is entitled to and should draw Jones v Dunkel [1959] 101 CLR 298 inferences having regard to that circumstance it is convenient to say something briefly about how that came to pass.
101 From the outset of this proceeding Mr Scholes made plain he intended to rely on the evidence of those three members of the Yusuf family. Mr Scholes also intended to call the pastor who, on his case, had driven him and his fiancé to Ibadan prior to their kidnapping and who had been with the Yusuf family for a social event on the evening when Pilgrims had arrived at the Yusuf home in Ilero to collect him and transport him to Lagos.
102 When during case management hearings it became evident that as a self-represented litigant Mr Scholes was facing considerable difficulties in putting in place arrangements in Nigeria for those witnesses to appear by video link, the Court enquired of Mr Dinelli as to whether video facilities might be made available by the High Commission for that purpose. In the end the Commonwealth agreed to make arrangements (at its expense) with a legal firm with offices close to Ilero where there would be a translator available to assist the taking of Mr Scholes’ witnesses’ evidence by video link. A schedule for the witnesses’ evidence was agreed between the parties well in advance of the trial.
103 In respect of the pastor it is uncontentious that Mr Scholes gave notice that he had left Ilero and was living elsewhere in Nigeria. He could not be located. In that circumstance Mr Dinelli indicated he would not be asking the Court to draw a Jones v Dunkel inference in the pastor’s instance. However that is not the case with Mr Scholes’ other three witnesses.
104 In the teeth of the trial Mr Scholes advised that he was fearful that Tayo might not be able attend to give evidence as scheduled. She had told him she had been sick and had gone to hospital. However Mr Scholes provided no evidence or gave sworn support for that contention. The Court made it clear to Mr Scholes that having regard to the extent of the arrangements which had been put in place by the Commonwealth both at its expense and with his agreement, no explanation for a witness’s non-appearance would be accepted unless it was supported by evidence.
105 I take it to be uncontentious that Mr Scholes clung to hope to the very last that of his three witnesses at least Tayo, his fiancé, would choose to give evidence. Mr Scholes resisted accepting that Tayo was not going to give such evidence until after the video link was established between Australia and the lawyers’ offices in Nigeria at the scheduled time and it became evident she would not do so.
106 In closing oral submissions, having regard to the above, a discussion took place between the Court and Mr Scholes regarding whether the Court should accept Mr Dinelli’s submissions that it should draw Jones v Dunkel inferences having regard to the absence of his witnesses:
HIS HONOUR: All right. Well, I don’t think I can hear you at all [in the absence of sworn evidence] as to the fact that there was a good reason for their non-attendance in the sense that your witness was hospitalised or that the weather was bad and they couldn’t get there. Considerable efforts were made to make arrangements for their attendance. All I can conclude is they didn’t. I would be entitled to accept that you are upset they didn’t appear and that you pressed as far as you could to keep open that possibility to the very last.
MR SCHOLES: That’s correct, your Honour. And I appreciate the Commonwealth for their attempts to – their offers of assistance in that regard. That is appreciated, Mr Dinelli. Thank you. And as I said, I apologise to the court for their non-appearance and I am extremely upset that they didn’t appear.
107 I will return to what I should make of their non-appearance in due course.
108 The parties agreed to a common tender of documents being admitted as evidence in each of their cases. Those the Court received as evidence in Mr Scholes’ case are Exhibit A1 to Exhibit A8 but with a limitation that Exhibit A6 and Exhibit A7 were accepted de bene esse on the basis that they might be relevant if damages were in issue. As I have concluded that the Commonwealth is not liable in damages I am satisfied that nothing in Exhibit A6 or Exhibit A7 is relevant.
109 I have also given close attention to the other documents that were admitted into evidence in Mr Scholes’ case. None are a contemporaneous record of events as he experienced them. In so far as those documents put in issue whether certain events occurred I am satisfied that they add nothing to the evidence adduced orally on Mr Scholes’ behalf in this proceeding. I have concluded that none of those Exhibits assist Mr Scholes or are dispositive of this case. The conduct of other agencies of the Commonwealth such as the Commonwealth Ombudsman and others that Mr Scholes has provided reference to in his Exhibits (even if I was to accept some falling short on their part which I decline to do given that there is no forensic basis for that conclusion) are not material to the foundational facts which are the subject of these proceedings.
110 At the time the events occurred, Ms Wilson was the Deputy Head of Mission at the Australian High Commission in Nigeria. The physical location of the Commission was in the capital Abuja not its largest city Lagos. Ms Wilson is now employed as a Policy Officer by the Commonwealth.
111 Ms Wilson gave her evidence-in-chief by affidavit. Much of that evidence is background and not contentious in this proceeding. Ms Wilson gave evidence that when Mr Scholes travelled to Nigeria, DFAT’s Smartraveller page on that country had described it as a “Level 3-Reconsider your need to travel” country due to the high threat of terrorist attack, the high risk of kidnapping, the unpredictable security situation, the possibility of violent civil unrest and the high level of violent crime.
112 Ms Wilson was the mission’s then security officer. The Australian High Commission had a contract with Pilgrims for the latter to provide permanent security services at the High Commission’s premises and at the High Commissioner’s personal residence. Pilgrims also provided other security services for the mission as agreed from time to time. Pilgrims employees were not authorised to carry firearms. If armed support was needed it was provided through the Nigerian Mobile Police (MOPOL).
113 In Ms Wilson’s role as the mission’s security officer she had been informed of the events of Mr Scholes’ kidnapping. She had been required to inform the Scholes and Yusuf families that the Australian government had a firm policy of not allowing itself to become involved in the payment of ransoms. Nonetheless she had been aware of private negotiations with the kidnappers. She learnt that Mr Scholes and Tayo were released after payment of a ransom on or around 6 December 2017. Her first priority having learned of their release had been to speak with Mr Scholes directly to ascertain his welfare and to offer him the assistance of the Australian government in getting him safely to Abuja or Lagos.
114 Turning now to what is in dispute, Ms Wilson’s evidence-in-chief was that on the evening of 6 December 2017 she spoke to Mr Scholes after having called Mr Alaba’s phone. She asked Mr Scholes if he was in need of medical assistance. Mr Scholes replied that he did not. He referred to his being able to make that judgment having previously been a paramedic. Mr Scholes had agreed to Ms Wilson informing his family in Australia of his release.
115 Ms Wilson’s evidence-in-chief was that she asked Mr Scholes if he needed assistance to make his way to Abuja or Lagos. She had warned him there might be a cost involved. Mr Scholes had asked if Tayo could come with him. Ms Wilson had ended that call on the basis that she would call Mr Scholes back the next morning.
116 Ms Wilson’s evidence-in-chief was that she had had trouble connecting with Mr Scholes the next morning but when they finally were able to speak he agreed to accept the Commonwealth’s offer of assistance:
31 . When I managed to speak to Mr Scholes later that morning, he informed me that, despite our first discussion1 he had travelled to Ilero with Ms Yusuf and her family. I knew this to be a significantly more remote location than where he had been the night before. Having regard to the Smartraveller travel advisory for Nigeria, and noting Mr Scholes had already been kidnapped, I was concerned for his safety, particularly as he was now in a more remote location. I again said to Mr Scholes that he should look after his own personal safety and recommended that he make his way to Abuja or Lagos as soon as possible. I asked him again if he required assistance to get to Abuja or Lagos and noted that there may be a cost involved if the Australian government provided assistance. Mr Scholes accepted the offer for assistance and said he understood there might be a cost involved. During this second call, Mr Scholes seemed far more jovial than the first. He sounded relieved.
32. During that second substantive call:
(a) I did not allege that Tayo Yusuf or the Yusuf family were involved in the kidnapping. I could not have done so because I did not know who was involved in the kidnapping, nor do I know now.
(b) I did not allege that Mr Scholes' life was in grave danger whilst he remained with Tayo Yusuf and the Yusuf family. As is my usual approach in my various roles overseas, and in Canberra, when such matters arise, I would have repeated the Smartraveller travel advisory and strongly encouraged him to get to Abuja or Lagos as quickly as he could. I specifically repeated the advice that the threat of kidnapping was high in all parts of Nigeria and that westerners, like Mr Scholes. were targeted. In making this recommendation I was mindful that his family had already paid a ransom once, and that if locals became aware that a ransom had been paid for his return, there was an increased risk that he would be kidnapped a second time.
(c) I did not tell Mr Scholes that a security team had already departed Lagos and would arrive in Ilero at midday. Although I had been informed by SAO Taylor that he had put Pilgrims on standby, until Mr Scholes had verbally accepted the offer of assistance in the second call, I understood that SAO Taylor had not formally engaged Pilgrims to collect Mr Scholes. Indeed, neither SAO Taylor nor I would have known where to send Pilgrims, until Mr Scholes confirmed his whereabouts with me. Therefore, I would not have been able to tell him that they would be with him by midday. Although I do not recall saying it, I may have told him that we would send our security contractors to collect him as soon as possible.
(d) In that phone call with Mr Scholes, as with all of my phone calls with him during that time, I listened to what Mr Scholes had to say. At no time did Mr Scholes tell me that he did not want assistance from the High Commission.
117 After speaking with Mr Scholes Ms Wilson contacted Mr Taylor to confirm Pilgrims’ engagement to collect Mr Scholes. Once she had done that her evidence is that she spoke on at least three occasions to Mr Scholes to give him regular updates on Pilgrims’ progress. Mr Scholes confirmed that he was looking forward to being picked up. She had not said anything to coerce Mr Scholes to act contrary to his will:
33. Following Mr Scholes' acceptance of my offer of assistance in the second call, I asked SAO Taylor to formally engage Pilgrims to collect Mr Scholes.
34. During the day on 7 December 2017, I spoke with Mr Scholes briefly another two or three times. The engagement of Pilgrims took longer than expected and we were informed by Pilgrims that the traffic was bad and slowing their progress. I called Mr Scholes two or three times to give him regular updates of their progress as I wanted to ensure he felt safe. At no time during those telephone calls did Mr Scholes state (or say anything to suggest) he no longer wished to be collected by Pilgrims, nor did I sense he felt he was being coerced to accept the offer of assistance. During these brief update phone calls, Mr Scholes did raise with me whether Ms Tayo Yusuf would be allowed to accompany him to Lagos. On each occasion Mr Scholes raised this with me, I again told him that Pilgrims' assistance was just for him, as an Australian citizen.
118 In cross-examination it became evident that Ms Wilson had only a limited present recall of the details of those events.
119 Ms Wilson could not remember whether she had asked Mr Scholes if he had wanted to stay with his fiancé. She could not remember if later after his return to Lagos he had told her that when the convoy had stopped for fuel he had considered stealing the car he was in and returning to Ilero. She accepted that her evidence of the timing and detail of the events she had deposed to in her affidavit was essentially a reconstruction she had settled based on her review of what she had written in cables and e-mails:
MR SCHOLES: Ms Wilson, as his Honour said, you’ve put an extensive affidavit together three years after; how can you not recall three telephone conversations – the contents of them?---I recall telephone conversations, sir, but not the specifics on time. In terms of the affidavit, well, it’s written off – it – it’s taken from me recalling things through looking at the cables that I had written at the time.
So the contents of our telephone conversations you don’t recall?---Not without referring directly back now to the cables and the emails I took – I did write at the time.
HIS HONOUR: But there are no cables that record that the – what you said in direct speech or what Mr Scholes said in direct speech. I assume that all of the relevant documents have been discovered; they’re available to the court. I’m just asking a simple question: how could you provide the detail you did in your extensive affidavit by reference to the cables when the cables don’t provide that detail if you don’t remember – if you don’t have a present recall?---I – I – I – I, sir – your Honour, I have a – a recall on information which was then added to by looking again at the cables and the emails I had – had written. I – I am – I am afraid I am just not specifically good at remembering dates and – and times as a – a personal character flaw.
120 However as to the critical and central issue of whether Mr Scholes had given his consent to being collected Pilgrims by Ms Wilson robustly asserted that she did have a firm present memory of that fact: that he had done so.
MR SCHOLES: Ms Wilson, you write in your affidavit, starting on page 7:
Mr Scholes accepted the offer of assistance. He understood there might be a cost.
I put it to you that I said, no, I do not accept your offer?---I disagree with your recall of that conversation.
I put it to you that you said to me the convoy had left. I said I had no choice, and you said no. That is my recall – recollection of the conversation?---I disagree with your recollection of the conversation.
HIS HONOUR: When you say you disagree with that recollection, do you have a present memory or is your recollection that which obtains from what you wrote in your affidavit from something in the materials? Do you have a present recollection of that conversation?---I – I do have a present recollection, your Honour, because as an Australian diplomat I can never force an Australian of their own free will to do anything that they don’t choose to. That is part and parcel of my obligations as a diplomat, and there is no way that I would at any stage stray outside of those obligations - - -
Okay?--- - - - and disrespect an Australian - - -
MR SCHOLES: Ms Wilson, I said to you on three occasions no. Why was the Pilgrims team sent to Ilaro to pick me up if I had said “No”?---I disagree with your recollection of those conversations.
121 In view of Ms Wilson’s concession that the balance of her evidence-in-chief was litte more than a reconstruction of events as she had noted them in the contemporaneous e-mails and cables she had authored it is convenient to refer to those materials as Mr Dinelli later put in evidence.
122 In my view there is but one document of any significance in that regard. It is a cable Ms Wilson authored and sent at 6:05pm on 7 December 2017. Her cable had a wide distribution including to the Prime Minister. It is headed Consular: Scholes Kidnapping Case: Update 12. In the cable Ms Wilson refers to herself as DHOM. Its text is as follows:
Summary
Mr Scholes rang to inform Post today (approximately 12:30 Abuja time) that he, Ms Toya Yusuf and Mr Kareem had travelled to Mr Kareem's village (Ilero in Ogo State). Mr Scholes move came despite Post's warning that he should be looking to move safely to Abuja or Lagos. Post again expressed its concerns about Mr Scholes' location and general well-being. Mr Scholes agreed to being collected and moved to Lagos by Post's security provider this evening (7 December). He said his adventure was over and agreed it was time to return to Australia. HOM will meet Mr Scholes on his arrival in Lagos tonight. Post has retrieved Mr Scholes' travel documents and credit card.
1. Mr Scholes rang DHOM today (7 December) to inform Post that he was now at the village (Hero) [sic] of Mr Kareem (i.e. the stepfather of Ms Toya Yusuf) in Ogo State. The move occurred despite a conversation with Post shortly after his release that - for his own safety - he should move to Abuja or Lagos (email Price/Wilson refers).
2. During the conversation, DHOM expressed Post's ongoing concerns about his location and well-being. Mr Scholes assured DHOM that Mr Kareem's house was surrounded by security and he was staying inside. (Comment: its unclear to Post who the security provider is.) DHOM sought and received Mr Scholes' permission for DFAT/AFP to share information about him and his situation with his family in Australia (AA553190L also refers)._
3. Mr Scholes made a series of allegations concerning Ms Tola Yusuf (the sister in Abuja), including that she had stolen USD 6,000.00 and may have been involved in the kidnapping, DHOM again noted that Post was extremely concerned about his location and that he needed to take steps to ensure his own safety. DHOM suggested that Post assist him with arranging safe travel to Abuja or Lagos. Mr Scholes agreed to move to Lagos.
4. Mr Scholes noted that his diary, passport and credit card were with Ms Tola Yusuf. DHOM said Post would arrange their return. (Comment: SAO has been in contact with Ms Tola Yusuf and the items were collected this afternoon (7 December). The documents will be transferred to Lagos tomorrow morning.)
5. In keeping with Post's reception plans, Post's security provider, Pilgrims, has been on stand-by since Friday evening (1 December). A Pilgrims team and armed police departed Lagos at approximately 15:00 to collect Mr Scholes. Pilgrims expects to arrive in Ilero at around 18:00/19:00. Sufficient security has been taken to return to _Lagos tonight.
6. During a second phone call with Mr Scholes at around 15:00, DHOM confirmed that Post's security was on its way. DHOM suggested that Mr Scholes seriously consider departing Australia as soon as possible and offered Post's assistance with this process. Mr Scholes seemed relieved and noted that his adventure was over. While his blood pressure was fine, he advised he was anxious and hyper-vigilant. He became slightly emotional. (Comment: Post has made further enquires with the British in Lagos to see about the possibility of quality counselling services for Mr Scholes, if required.) DHOM undertook to talk to him once he was with Pilgrims.
7. On his arrival in Lagos, Mr Scholes will be taken to a hotel and met by HOM.
…
123 At the time the events occurred, Mr Lehmann was the Australian High Commissioner to Nigeria. As at the time of the trial Mr Lehmann was serving as Deputy High Commissioner, Australian High Commissioner to Papua New Guinea.
124 Mr Lehmann gave his evidence-in-chief by affidavit sworn on 19 November 2020 (Exhibit R3).
125 The key elements of Mr Lehmann’s evidence-in-chief include that he had had regular briefings about Mr Scholes’ kidnapping. He had been in Lagos for other reasons on 8 December 2017 and had taken the opportunity to meet with Mr Scholes shortly after his arrival with the Pilgrims team at the Sheraton to check on his welfare. He had gone to Mr Scholes’ room to meet with him. During their short meeting Mr Scholes told him both that he was grateful for everything the Australian High Commission had done for him and about how relieved he was to be brought to safety. Mr Scholes said nothing about his having withheld or withdrawn his consent to the consular assistance that had been provided to him. Knowing that Mr Scholes had no funds Mr Lehmann had given him a small amount of his own money (the equivalent of $50) so Mr Scholes could buy food and personal items. Mr Scholes had later returned that amount to him.
126 Mr Scholes had raised his disappointment that Tayo had not been permitted to travel with him. In response Mr Lehmann had explained DFAT’s policy that consular assistance is not provided to citizens of a foreign country who are present in the country of their citizenship. Mr Scholes had then asked him whether he could do him a favour and arrange a fast track visa for his fiancé. Mr Lehmann’s evidence was that he had responded that he did not have that authority and recommended that Tayo apply for a visitor’s visa through the normal online channels.
127 Mr Lehmann’s evidence-in-chief was that he had left after about 15 minutes to attend to other tasks but had returned to the Sheraton later in the afternoon to make sure Mr Scholes had comfortably settled in. He met Mr Scholes briefly in the lobby. Mr Scholes expressed his desire to return to Australia at the earliest opportunity. Mr Lehmann had told Mr Scholes that he would be free at any time to apply for a visa to return to Nigeria or Tayo could apply for a visa to visit him in Australia. He told Mr Scholes his principal concern at that point of time was for Mr Scholes’ safety and welfare as an Australian citizen. His recall of what Mr Scholes had said as is material to this proceeding was that;
20. During my meetings with Mr Scholes:
(a) he said nothing at all to suggest that he had been taken to, or remained at, the Sheraton Hotel under any circumstances other than with full consent on his part and following an express request for consular assistance. He did not mention having been subject to any form of duress and he did not make any complaint about the services he had received from Pilgrims' employees or anyone else. On the contrary, he was relieved that his ordeal was over. I do recall that Mr Scholes told me that the overnight trip to Lagos had been uncomfortable due to the poor state of repair of the road;
Mr Lehmann’s evidence-in-chief was that if Mr Scholes had ever withdrawn his request for consular assistance at any point, provision of that assistance would have been discontinued immediately.
128 In cross examination Mr Scholes put to Mr Lehmann that he had met with him only once – in the morning. Mr Lehmann responded that he had a firm recall to the contrary. Mr Scholes put to him that that could not be true as he had been booked to fly to Abuja that afternoon. Mr Lehmann responded that flights in Nigeria were often delayed. He had a clear memory of them meeting twice. He was unsure whether Mr Taylor had also been at the second meeting. He may have been.
129 Mr Lehmann accepted that it would have been consistent with his views at the time for him to have asked Mr Scholes to stay in his hotel room until Mr Taylor arrived at 4:00pm. If he had done so it would have been out of concern for Mr Scholes’ welfare and so he could rest after his experiences.
130 Mr Scholes put to Mr Lehmann that he had never expressed a desire to return to Australia “at the earliest opportunity”. Mr Lehmann responded that he remembered Mr Scholes agreeing with him that returning without delay to Australia was the most sensible thing to do in the circumstances.
131 Mr Lehmann’s evidence in cross-examination was that he had had no conversation with Mr Scholes in which Mr Scholes had raised that he had earlier considered stealing a car and returning to Ilero. Mr Lehmann had no personal knowledge of that ever having been said. He had read the cable which had mentioned Mr Scholes making such a statement only recently.
132 Put to him that the High Commission had acted on mischievous information that had been supplied to it by Tola and for that reason things had been taken out of Mr Scholes’ control, Mr Lehmann’s concluding evidence in cross-examination was as follows;
Well, your Honour, I categorically reject that contention. It’s all very well for Mr Scholes to put that, but it does not mean I accept any part of it. You know, cables are prepared, in these circumstances, based on information we receive. We operate, in these situations, in a very information poor context. Any – any oral information may or may not be either useful or truthful, but we have to do our best to try and learn as much as we possibly can in order to provide the assistance to people who have asked for it. We are not a law enforcement or investigation body. You know, we do not – if someone tells us something we will listen to that. We don’t necessarily know. We don’t know all of the circumstances. We never claim to. But we are trying to work out what it is we can do to assist Mr Scholes based on whatever information we – we are able to ascertain.
133 At the time of Mr Scholes’ kidnapping Mr Taylor was the Senior Administrative Officer at the Australian High Commissioner in Nigeria. At the time of the trial he is retired.
134 Mr Taylor gave his evidence-in-chief by way of an affidavit affirmed on 19 November 2020 to which there were five annexures (Exhibit R6).
135 Mr Taylor gave uncontentious evidence as to the relationship between the Australian High Commission and Pilgrims. He explained that Pilgrims is a private security contractor. Pilgrims has an excellent reputation and has also provided services to other diplomatic missions. Pilgrims’ routine work for the Commonwealth was to provide 24 hour security for the Australian High Commission and the High Commissioner in Abuja. It also had staff in other parts of Nigeria. Its services were engaged by Mr Taylor for security tasks outside of the capital on an ad hoc basis. His evidence-in-chief was:
20. Generally, if the Australian High Commission needed to engage Pilgrims for security and transport in other parts of Nigeria, I would contact Pilgrims, explain the nature of the task and ask them to provide recommendations for the form of transport and security to be provided. Pilgrims would submit recommendations and a quote for their services. I would then confirm the engagement and, when the job was complete, Pilgrims would send an invoice to the Australian High Commission for the services provided.
136 Mr Taylor’s evidence was that after having been advised by Ms Wilson of Mr Scholes’ kidnapping he had put Pilgrims on standby in case their assistance was needed. On 2 December 2017 he had contacted Pilgrims to advise that the High Commission might require its assistance in providing ground transport and accommodation and might need to explore medical options if Mr Scholes had been injured. Pilgrims had advised it could assist.
137 On 7 December 2017 at 1:16pm Mr Taylor sent an email to Pilgrims in the following terms:
Our Australian citizen and his Nigerian girlfriend have been released, and we are looking at getting them to Lagos. They are currently in a town called Ilero, Oyo State at the home of the Step Father of the Nigerian girlfriend. Can you provide transport to Lagos today and can you also give us a rough estimate of cost?
138 Mr Daniel Lemmer (Mr Lemmer), Pilgrims’ General Manager responded to Mr Taylor by e-mail at 1:49pm:
Good news Brian I will revert and get back to you ASAP.
3 options.
1. We leave now and secure the pax and come back tomorrow morning first thing. (night travel)
2. other option is to leave now with lead and chaser vehicle armed escort and return tonight. 5 X Mopol
3. We leave tomorrow morning if the pax is secure.
I would prefer option 2.
139 Mr Taylor replied by e-mail to Mr Lemmer at 2:27pm as follows:
Hi Daniel Our Australian Citizen in Ilero is Alaistair Scholes
His phone number is 0814 515 2872
The owner if the house, Mr Kareem, is on phone number 0802 941 2024
Mr Kareem may be best for providing directions.
As discussed, option 2 seems the best one.
We are making a booking for Mr Scholes at the Federal Palace Hotel for tonight, and will review our plans tomorrow.
Kind regards
Brian
140 Mr Taylor gave evidence regarding the circumstances in which some of those plans had altered including (a) how after collecting Mr Scholes Pilgrims had had to overnight after running low on fuel and (b) that Mr Scholes had been delivered to the Sheraton rather than the George Hotel. Those facts are uncontentious and Mr Taylor’s evidence need not be further detailed.
141 Mr Taylor made arrangements to fly to Lagos to meet Mr Scholes to make sure he was OK and to offer him any assistance he might need. His evidence-in-chief as to his meeting with Mr Scholes the next day was as follows:
40. I arrived at the Airport Sheraton Hotel mid-afternoon on 8 December 2017 at around 3 or 4 pm. I checked in at the hotel reception, and was met by the Assistant Manager, an Australian citizen who I had met several times previously. He introduced me to Mr Scholes. After a brief welcome, we sat down in the hotel's beer garden so I could get a proper understanding of Mr Scholes' condition and what next steps were required. I asked Mr Scholes whether he needed any medical assistance, explaining that I could arrange for him to receive physical care at a hospital or medical centre or psychological care through a telephone care service back in Australia. He told me that he had a paramedic background and did not require any medical assistance.
41. For the next three hours, Mr Scholes gave me an account of what had happened to him and his Nigerian girlfriend, Tayo Yusuf, since they had been kidnapped from a bus in late November. He made a number of repeated allegations against certain members of the Yusuf family, suggesting that they had been involved in the kidnapping. He requested a meeting with the Nigerian Department of State Security (DSS) so that he could explain the situation to them. It was a very complex story and Mr Scholes did not explain it in a concise or systematic manner, which made it difficult for me to follow.
42. At some point during that discussion, I gave Mr Scholes a small pack of his possessions that I had earlier collected from Tola Yusuf's home (Tayo Yusuf's sister), including his passport, credit cards, driver's licence and some clothing. I also explained to Mr Scholes that before meeting with him, I had called the head office of Flight Centre, who I knew to be his travel agent, and asked them the process for changing his flight home to Australia if required. The person with whom I had spoken at Flight Centre had said that all that was required was for Mr Scholes to call the office where he had made his booking and request a change to his booking.
43. Mr Scholes said that he wanted to leave Nigeria, so we went up to his room so that he could call Flight Centre and change his flight to the next available one. Although I remember Mr Scholes had his own phone and laptop, he borrowed my mobile phone to call Flight Centre. I think he asked to borrow my phone because his phone had a local SIM card that did not allow him to make international calls. I was in Mr Scholes' hotel room when he called Flight Centre and heard him change his flight to the morning of 10 December 2017. He used his own credit card over the phone to pay the transfer fee. I never forced him to call Flight Centre or threatened him in any way. No one else was present when he made the call. I recall that he asked me for my email address, so that the person with whom he was speaking could send the email confirming the change of flights to my email address.
142 The balance of Mr Taylor’s evidence-in-chief, given the reduced scope of contested matters in consequence of Mr Scholes’ concession as I have referred to at [21] of these reasons, is mostly of little relevance to the remaining questions the Court has to determine. It is however relevant that Mr Taylor’s evidence is that on leaving Nigeria after he had assisted Mr Scholes through customs and immigration:
53. At the gate, when passengers were called to board the flight, Mr Scholes gave me a big bear hug and thanked me for my assistance. From his reaction, I thought he was very happy and relieved to be returning to Australia.
143 In cross-examination Mr Scholes asked Mr Taylor a number of questions regarding whether DFAT had been satisfied he had given his consent to being collected from Ilero and being brought to Lagos. Mr Taylor’s evidence was that he had understood that to have been the position at all times:
MR SCHOLES: …Did DFAT confirm, Mr Taylor, the consent of Mr Scholes before they engaged the services of Pilgrim?---Sorry, that broke up a little bit again. Did you say DFAT ---
HIS HONOUR: Did DFAT confirm Mr Scholes’ consent before it engaged the services of Pilgrims?---So by “consent” are you saying did – to get – did DFAT agree – speak – get your approval to pick you up and take you – to pick you up from Ilero; is that the question?
MR SCHOLES: Yes?---My understanding of that was yes. That you initiated the – that conversation with Ms Wilson that you were happy for DFAT to come and pick you up from Ilero and escort you to Lagos securely.
Even though the Pilgrims team leader yesterday in his evidence said that he left Lagos without knowing whether Mr Scholes had given consent?---I don’t – I can’t comment on what the Pilgrims were – team leader would have done. But I don’t – I mean, the – the engagement of Pilgrims was done through our office in Abuja. I was part of it initially. Was to request them to go up there. I mean, I don’t see that the person in the car would have been concerned about that. They would have already had the mission assigned to them by their office in Lagos.
144 Mr Scholes asked Mr Taylor whether Ms Wilson had ever informed him that he had threatened to steal one of the Pilgrims’ cars to return to Ilero and his fiancé Tayo. Mr Taylor’s evidence was that he had not been so informed.
145 Pressed regarding the urgency necessitating Mr Scholes leaving Nigeria Mr Taylor’s evidence in cross-examination was as follows:
MR SCHOLES: … Mr Taylor, was there any necessity that Mr Scholes be put on a plane ASAP out of Nigeria?---My recollection of it is that you wanted to leave Nigeria.
Even though that meant leaving his fiancé behind?---Yes, well, I mean several times in our discussions, sort of there, you said you wanted to go home and that, but you also spoke of the option of either coming back or of your fiancé joining you in Australia. Because, you know, you asked several times about the immigration process, the visa process.
146 Ms Dee has been Assistant Secretary, consular communication and policy branch of DFAT since October 2020. Her evidence-in-chief was given by way of an affidavit with three annexures which she had affirmed on 19 November 2020 (Exhibit R4).
147 Ms Dee’s evidence is uncontentious. She deposed to the travel advisories that DFAT had published for the information of Australians intending to visit Nigeria at the time Mr Scholes travelled there. There is no dispute about that material. It warns of considerable risks.
148 Ms Dee also gave evidence about DFAT’s policies regarding consular assistance. In responding to a question asked by Mr Scholes in cross examination Ms Dee explained DFAT’s consular assistance policy as extending to include the following:
Australian Government officials might continue to - to monitor, consider options, look at risks - for Australians in a particular location, the risks in a particular location, and - and still continue to provide advice and options should individuals choose to take that up where the - the decision-making ultimately is the responsibility of the individual concerned.
149 I do not understand Mr Scholes to submit that DFAT’s general policy is otherwise. His case is that whatever DFAT’s policy might be in the broad, in his particular instance, he had been given no choice but to leave Ilero and his fiancé behind after Pilgrims had arrived with orders to take him to Lagos.
150 At the time the events occurred, Mr Aliyu was a supervisor at Pilgrim. As at the time of the hearing he had remained so.
151 Mr Aliyu gave evidence-in-chief by way of an affidavit he had affirmed on 1 December 2020 (Exhibit R5). Given Mr Aliyu’s residence in Nigeria that affidavit had been drafted with the assistance of an Australia lawyer who Mr Aliyu had told everything he knew about the incident. His affidavit then had been signed in counterpart in accordance with Part 5A of the Oaths and Affirmations Act 2018 (Vic). No objection to admissibility was pressed.
152 Mr Aliyu’s evidence-in-chief was that he had significant experience in providing private security services on Pilgrims’ part. Private security contractors are not licenced to carry guns in Nigeria. If Pilgrims assesses a situation is potentially dangerous Pilgrims calls upon its relationship with MOPOL who are authorised to carry arms.
153 On 7 December 2017 he received a call from Mr Lemmer, a director of Pilgrims. Mr Lemmer told him he was to command a rescue mission to extract an Australian citizen, Mr Scholes, from a small village, Ilero, and escort him safely to Lagos.
154 Conscious of potential dangers including risks of attacks on the road at night, Mr Aliyu had asked Mr Lemmer to request MOPOL to provide assistance. That had been agreed. In consequence MOPOL officers armed with AK-47s travelled in the front and rear vehicles (2 in each) of a convoy of three Pilgrims cars for the purpose of the mission. Of the 8 members of the team only the MOPOL officers carried guns. The four Pilgrims staff were unarmed. They were dressed in black and brown uniforms.
155 Mr Aliyu’s account of what then occurred was as follows:
11. The rescue group departed Lagos mid-afternoon on 7 December 2017. Although it is approximately 230 km by car to Ilero, and should take approximately 4 hours, the traffic in Nigeria is very heavy and unpredictable. On that day, the traffic was very heavy and so our progress was slow. The rescue group did not arrive at Ilero until approximately 10 pm.
12. As we approached Ilero, it was dark. Mr Lemmer had given me the telephone number for a man named Kareem, who I was told was the stepfather of Mr Scholes' companion (Tayo Yusuf). When the rescue team were close to Ilero, I called the telephone number and spoke to a man who identified himself as Kareem. We arranged a meeting place in Ilero. As I did not know whether Kareem was friendly, as a precaution, I sent the lead vehicle to the other side of Ilero, in case we were ambushed and needed support.
13. The remaining two vehicles proceeded to meet Kareem at the agreed meeting place. After a short introduction, we got back into our vehicles and followed Kareem to the house he said that Mr Scholes was staying in.
14. When we arrived at the house, Mr Scholes was standing outside waiting for us with a small group of people. Each member of the rescue team got out of our vehicles and walked over to Mr Scholes. I took Mr Scholes aside and explained to him that we had been sent by the Australian Government to safely transport him to Lagos. I told him that we needed to leave because Ilero was unsafe and I asked him who the people were that had gathered with him. Mr Scholes introduced the people in the group to me and told me that they were friendly. I remember that the group included Tayo Yusuf, her mother, her stepfather (the man we knew as Kareem) and some siblings. I accepted that they were friendly and so I radioed the lead vehicle that I had sent ahead and told them it was safe for them to join us. I directed the lead vehicle to our location over the radio. They arrived a short time later. When they arrived, each team member got out and I introduced them all to Mr Scholes.
15. Mr Scholes asked me if his companion, Ms Yusuf, could come with him to Lagos. As my instructions were only to collect Mr Scholes, I told him that I did not think she would be allowed to come with him, but that I would call my superiors to confirm. I then walked a short distance from the group and telephoned Mr Lemmer. I repeated Mr Scholes' request and asked whether Ms Yusuf could be transported with Mr Scholes. Mr Lemmer confirmed that the rescue mission was only for Mr Scholes and Pilgrims had not been instructed to assist Ms Yusuf.
16. I walked back to the group and told Mr Scholes that Ms Yusuf was unable to come with us. Mr Scholes accepted this without complaint. He said goodbye to Ms Yusuf and the others in the group. He then walked over to the convoy and got into the middle vehicle. He did not protest in any way. I sat in the front passenger seat. Hakeem Adegbite (the driver) was the only other person in the vehicle.
17. Once we got into the middle vehicle, I could see that Mr Scholes looked weak and fatigued. He said that he wasn't feeling well. After a short time, we stopped the convoy because Mr Scholes was feeling dizzy. ·Mr Scholes got out of the vehicle and vomited on the side of the road.
18. During the trip, I recall that Mr Scholes talked to me about the attack on the bus and his kidnapping.
19. In light of Mr Scholes' condition, my concerns that driving at night on that road was dangerous and that we were low on petrol, I called Mr Lemmer and sought approval to stay at a hotel overnight. Mr Lemmer granted that approval. A short time later, we stopped in a town and looked for a hotel. It was important that wherever we stayed was as safe as possible, and so we chose not to stay at the first hotel we stopped at because I decided that a nearby crowd of people posed an unacceptable safety risk. At the second hotel, we asked the staff for a room near the exit, so that we could leave quickly if it became necessary.
20. After we checked-in, I took Mr Scholes to his room. Mr Scholes walked into the room and did not protest. I explained to Mr Scholes that the rescue team would stay outside his room and protect him so that he could get some rest and would check on him every 30 minutes throughout the night. The whole team took up defensive positions around the hotel and the convey vehicles to ward against any attack. I, the other three Pilgrims employees and the four Mopol officers, remained awake the whole night. Early in the morning, I knocked on the door of Mr Scholes' room and asked him to get ready to leave. I recall we gave him some water and got back on the road at about 6.00 am. He looked much stronger than he did the night before.
21. As had been the case the night prior, I sat in the front passenger. seat of the middle car with Mr Scholes. During the drive, Mr Scholes talked to me about his fiancé. I understood from what he told me that he intended to return to Australia but that he would still love to come back to Nigeria despite his experience.
22. A short time into the drive, we stopped in lbandan so that Mr Scholes could eat breakfast and the vehicles could be re-fuelled.
23. During the drive to Lagos, I called Mr Lemmer and asked for instructions regarding where to take Mr Scholes. I was told that the Australian High Commissioner was in Lagos and he would meet us at the Sheraton Hotel.
24. We arrived at the Sheraton Hotel in Lagos at approximately 10.00 am. I walked into the hotel with Mr Scholes and briefly met with the Australian High Commissioner. As I left, Mr Scholes thanked me for everything the rescue team had done. He seemed genuinely grateful.
156 Mr Aliyu’s evidence-in-chief also included his denial that (a) Mr Scholes had ever expressed any reservations to him about leaving Ilero and (b) the people from the village in Ilero had pleaded with Pilgrims not to take him.
157 In cross-examination (often conducted by Mr Scholes using the third person) Mr Aliyu accepted that his tasking for the mission had been arranged between his boss, Mr Lemmer, and the Australian High Commission. He had not been informed that Mr Scholes had given his consent to the rescue mission.
158 He had simply performed the job that had been asked of him. Asked what he would have done if Mr Scholes had ever said to him that he did not want to be with Pilgrims and wanted to return to Ilero, Mr Aliyu’s evidence is that he would have immediately called his boss to inform him. That hypothetical aside Mr Aliyu remained unshaken that at all times that Mr Scholes had seemed willing (and had wanted) to go with him:
You also say in your affidavit that no one corralled or forced Mr Scholes into the vehicle, is that correct?---Correct. Correct.
Even though Mr Scholes said that he was – that you closed the circle around him before leaving to get him into the vehicle?---That was not correct.
Were you aware that Mr Scholes was protesting when he was talking to you. He didn’t want to go?---There was no protest from Mr Scholes. There was no protest. He gladly accepted it….
You were never told that Mr Scholes had given permission – well, given his consent to the rescue mission?---No, I was never told. I was never.
Was Mr – when you first met Mr Scholes, was he surprised to see you?---No. Not at all. He was not surprised. He was not surprised.
Even though he says that he was surprised?---If he – he was not surprised, he was not looking surprised. He – he like – he like, he was expecting our – our – our coming already.
Even though he told you he didn’t want to go, he didn’t want to leave his fiancée behind, do you remember that?---He didn’t tell us he wouldn’t want to leave his fiancée behind. He only asked us if we can allow his – his fiancée to come with us to Lagos? So I put the call and – and found from my boss if that would be possible.
When Mr Scholes was in the vehicle with you and the driver, did he tell you that he did not wish to be with you?---He didn’t mention that to me.
159 He denied that MOPOL’s armed police had ever engaged in a show of intimidation:
I get the question. Now, when we got to Ilero, every of the MOPOLs were carrying their gun in a ..... direction not to harass anybody. Nobody ..... nobody brought their gun ..... none of them pointed gun at anybody when we got to Ilero...
MR SCHOLES: So they all stood there with their firearms in a safe position but openly displaying them, is that correct?---Correct.
Even though the environment around the Yusuf home was not a ..... hostile environment?---Correct.
I put it to you, Mr Mustafa, that was a open display of intimidation. Show of force. Is that correct?---Not correct, sir. Not correct.
160 Mr Aliyu’s evidence in cross-examination was that had no memory of Mr Scholes having told him on the outskirts of Lagos (on the morning of 8 December 2017) that he had thought about stealing a Pilgrims vehicle and driving it back to Ilero:
You can recall exactly what was said but you cannot recall Mr Scholes saying to you on the outskirts of Lagos, when we stopped for fuel, when you hopped back into the vehicle, that he considered stealing the car to return to the village?--- I can't remember telling me he wants to steal the vehicle ..... mention of that.
Even though you can remember everything else, you can't remember that?---Because I know he didn't mention that to me.
161 Mr Aliyu acknowledged that “of course” Mr Scholes was stressed. He acknowledged that the event he deposed to at paragraph 17 of his affidavit occurred on the morning of 8 December 2017 rather than on the evening of 7 December 2017 as might, from its context, be inferred.
…in paragraph 17, you write:
After a short time we stopped the convoy because Mr Scholes felt dizzy. He got out of the vehicle and vomited.
Do you recall that incident?---Of course, your Honour. I remember.
I put it to you that that was the following morning on the outskirts of Lagos?---Exactly, sir.
So it didn't occur on the trip out of Ilero?---Yes. On our way to Lagos - on the outskirts of Lagos. That was when that happened. So we had to stop for ..... to do that.
So in your affidavit, my reading of it is that you said that occurred on the 7th, not the 8th; is that correct?---That happened on the 8th, not the 7th.
162 Mr Aliyu was not cross-examined with respect to his evidence regarding how he had located the Yusuf family home.
163 At the time the events occurred, Mr Lemmer was a Lagos based director of Pilgrims. Mr Lemmer gave his evidence-in-chief by way of an affidavit sworn on 12 November (Exhibit R7). Mr Lemmer’s affidavit was prepared in the same manner and signed in counterpart as was Mr Aliyu’s affidavit. No objection was made to its admissibility.
164 The Court need not recount Mr Lemmer’s evidence-in-chief in any detail. It is common ground that Pilgrims was engaged by Mr Taylor on behalf of the Commonwealth to provide consular assistance to Mr Scholes by way of collecting him from Ilero and bringing him to Lagos. Mr Lemmer had discussed with Mr Aliyu the risks associated with his task and had arranged for MOPOL to assist in that mission.
165 Mr Lemmer confirmed that after Pilgrims’ convoy of three vehicles had arrived at Ilero and located Mr Scholes, Mr Aliyu called him at Mr Scholes’ request to ask if “his female companion” could accompany him to Lagos. Mr Lemmer had told Mr Aliyu that Pilgrims’ instructions were limited to collecting the Australian citizen.
166 Mr Lemmer also confirmed that after Pilgrims had picked up Mr Scholes, Mr Aliyu had phoned him seeking his agreement for the convoy to overnight at a hotel because they risked running out of petrol. He had accepted Mr Aliyu’s assessment that the road back to Lagos was notorious for kidnappings and armed robberies particularly after dark and, with the risk of running out of fuel, he had approved the rescue team lodging in a suitable hotel overnight. He had transferred money electronically to Mr Aliyu for that purpose.
167 In cross-examination Mr Lemmer gave evidence that Mr Taylor told him that the Commonwealth had Mr Scholes’ consent for his extraction from Ilero. He had not thought it necessary to provide that information to Mr Aliyu: Mr Aliyu would know he would not be given an illegal order.
In evidence yesterday, your team leader said that he left Lagos without being told that the consent had been obtained from the DFAT client? ---No, he – he would not have any knowledge on what was – transpired between myself and – and Mr Taylor.
So he left not knowing whether consent had been gained or not?---No, he left on instructions from myself to go and extract you or to go and pick you up in Ilero. In other words, he – he – he would know that it would not be an illegal order or whatever the case might be because we do not work like that.
…
Mr Lemmer, did Brian Taylor ever express to you his or DFATs confidence or lack of it that Mr Scholes would accept a lift from Pilgrims back to Lagos?---Negative. No.
168 Mr Lemmer was also cross-examined by Mr Scholes as to what Pilgrims would do if a person they were transporting threatened to steal one of its vehicles:
Mr Lemmer, what would happen if one of your employees says to you that one of your clients was going to steal one of your motor vehicles and, let’s say, return to the village of Ijado; what’s your company’s protocol in dealing with that scenario?---I don’t quite understand the question.
What’s the – what’s your company’s protocol if - - -
MR ..........: ..... steal your vehicle.
THE WITNESS: Who’s stealing our vehicles?
MR ..........: He would just take it, wouldn’t he? Just take it and run.
MS KEARNEY: Apologies, your Honour. I can hear a voice. Yes. I think that might have fixed it. I think everyone is on mute now.
HIS HONOUR: Sorry, what - - -
ASSOCIATE: I think there – one of the participants in the meeting wasn’t on mute, your Honour, and he has now been muted.
HIS HONOUR: All right. Look, just – it seems that this question could not be understood as it had been asked but the evidence in this proceeding from Mr Scholes is that, at some point, on the return to Lagos, the vehicle in which he was travelling stopped for fuel and for breakfast, I think, and whilst your team leader was out of the car, Mr Scholes contemplated stealing the car and returning back to Ilero. He says that he told your team leader that, your team leader denies being told that, what Mr Scholes is asking you is what policies, if any, your company has that would cover such a circumstance?---I mean, I’m a little bit perplexed. I mean, if a client would want to steal one of our vehicles, I mean, we – obviously, we’ve got trackers on all our vehicles. So we would – we would track the vehicle and, you know, try and get it back with the help of the police.
Thank you.
MR SCHOLES: Thank you.
169 I turn first to my conclusions in respect of the credit of the witnesses who gave oral testimony in this trial.
170 I am satisfied, in so far as an impression of a witness may permit a valid judgment of his or her credit, that in their oral evidence all of the witnesses, including Mr Scholes, gave what they understood was the truth. To the extent there are discrepancies in their recollections I reject that I should conclude that those discrepancies are the result of the witnesses’ dissembling.
171 I include in my assessment in that regard Ms Wilson notwithstanding that she acknowledged in cross-examination by Mr Scholes that in contrast with the specificity of her affidavit she had only a limited present memory of the conversations she had with him on 6 and 7 December 2017.
172 Ms Wilson’s frank, if awkward, acknowledgement that the timing and detail of certain of the events she had deposed to in her affidavit was essentially a reconstruction based on her review of what she had written in cables and e-mails is consistent with the Court rejecting that it should conclude there was any disposition on her part to mislead.
173 However I should say more about my conclusion regarding Mr Scholes’ general credit.
174 In his closing oral submissions Mr Dinelli referred to Mr Scholes’ account of his relationships with Tola and Tayo Yusef as bizarre. I have set out an outline of the evidence Mr Dinelli adduced from Mr Scholes in those regards. Counsel submitted that the nature of Mr Scholes’ conduct might justify scepticism of his general credit. I indicated at that time that I was then unpersuaded of that submission. I explain below why I have remained of that opinion.
The Commonwealth’s submission regarding the “bizarre” nature of Mr Scholes’ evidence undermining his general credit
175 The Commonwealth submits that Mr Scholes’ evidence going to the nature of his relationships with the members of the Yusuf family and his history with them is so bizarre as to warrant scepticism of “the reliability and credibility” of his evidence. I have set out in some detail at [29]–[61] above the evidence Mr Scholes gave in response to the questions Mr Dinelli asked of him in cross-examination about his history with the members of the Yusuf family. I have provided that detail because I am entirely unpersuaded that there is anything at all in that history as could justify the submission advanced by the Commonwealth.
176 Mr Scholes first met Tola when aged in his mid-fifties. He was 58 years old when he travelled with Tola to Nigeria and met Tayo. Tola and Tayo were both at least in their mid-thirties at that time. Each had had children by former partners at the time of the relevant events.
177 In my view there is nothing “bizarre” about a lonely single older man who is otherwise immersed in his profession and his studies becoming attracted to the company of a vivacious younger woman and in due course finding some happiness in having her and her daughter live with him at his home for a period of time as a “non-sexual family unit”. If Mr Scholes’ conduct with Tola was to be submitted to involve bizarre elements or impropriety Mr Dinelli had to put that proposition directly to Mr Scholes: he never did.
178 Mr Dinelli did not put to Mr Scholes that he was lying or distorting the truth when he explained that he had not been discomforted by discovering that Tola had a boyfriend in Nigeria because, while he had enjoyed having her stay with him at his home in Australia, he had not been interested in having a relationship with her beyond having someone to talk to after years of living alone with his head in his studies.
179 I reject it is bizarre or implausible for Mr Scholes to have been taken advantage of by Tola when she asked him for money. At the time he appears to have had no reason to suspect Tola’s motivations. He was friends with her brother. Mr Dinelli did not challenge Mr Scholes’ evidence that he had thought Tola was honest and that he had trusted her.
180 Mr Scholes is not the first lonely older man, nor will he be the last, to have believed the best of a charming scammer. That Mr Scholes’ lack of sufficient scepticism rendered him vulnerable to being taken advantage of by Tola is not, in my opinion, a sound reason to doubt his honesty.
181 Further I reject that Mr Scholes’ account of his later falling in love with Tola’s younger sister in the circumstances he gave evidence of is such an implausible event as to suggest want of general credit on his part. He and Tayo were dropped off at a hotel together in Keffi. They stayed at that hotel for two nights and then lived together under the same roof at Ade’s house in that town for more than a month. They would have had plenty of time to get to know each other.
182 Tayo’s motivations are unknown: she has failed to make herself available as a witness, but that Mr Scholes was open to find love in the person of a younger woman who expressed herself to him as reciprocating his feelings and that he was prepared to welcome her and her children into his lonely life is hardly implausible. It is within common knowledge (within the meaning of s 144(1)(a) of the Evidence Act 1995 (Cth) that a not inconsiderable number of men and women have (wisely or unwisely) taken less time before becoming engaged to marry.
183 I reject that it is implausible or bizarre that in the circumstances in which Mr Scholes discovered that Tola had (a) lied to him about the events that had led him to advance large sums of money to her and (b) concocted stories about where his possessions (money, credit card and passport) that he had given to her in good faith to look after were, that Mr Scholes might have jumped to the conclusion that she may have been involved in his kidnapping. The correctness of Mr Scholes’ belief that Tola was involved in his kidnapping is not the subject of this proceeding; the timing of that occurrence is likely to have been a co-incidence and Tola probably had absolutely nothing to do with it. However that Mr Scholes formed a contrary belief, given its timing, Tola’s earlier manipulative conduct towards him and her refusal to have given him back his property is not so wildly fanciful a speculation as to warrant a conclusion by the Court of a general want of credit on his part.
184 Mr Scholes’ kidnapping happened when he and Tayo were en route to put in place arrangements recommended to Mr Scholes as being a local process for him to get his property back from Tola.
185 The documentary record reveals that the ransom monies that were paid to secure his and Tayo’s release involved a not insignificant amount of money that Mr Scholes and his Australian family provided – and a lesser amount from the Yusuf family in Ilero (see the affidavit of Ms Wilson at paragraph 22).
186 Tola used Mr Scholes’ credit card to access his funds to help fund the ransom but Tola did not disgorge what was left of Mr Scholes’ ‘emergency’ money in her possession to help secure his release. The emergency money Mr Scholes had left with her (less the amounts Tola had used for her own purposes to purchase a generator) were later returned to Mr Scholes but only after the intervention of Mr Taylor.
187 On news of their release Tola contacted the High Commission immediately stating she did not want Mr Scholes to be allowed to return to the Yusuf family home in Ilero. There are references in the evidence to Tola later coming to the High Commission in Abuja to suggest that her family in Ilero, including Tayo and Mr Alaba, were “shady”.
188 I am satisfied that it cannot be ‘bizarre’ that Mr Scholes came to the opinion that Tola’s conduct towards him after he had confronted her with her dishonesty was motivated by malice.
189 None of the above remotely sums to proof that Tola was involved in Mr Scholes’ kidnapping but in the contextual circumstances I reject that it is so bizarre that nothing but wild paranoia on Mr Scholes’ part can explain his having come to believe that Tola, out of malice, may have manipulated the relevant events, including his and her sister’s kidnapping, either to revenge or to further enrich herself at Mr Scholes’ expense. That he did so is not proof of anything as would go to undermining his general credit.
190 If needs be said I also reject that Mr Scholes’ answer to the question asked of him as to why Tayo’s visa to travel to Australia had been refused which was it had been because “they” had concluded that “the relationship wasn’t genuine and for other information on departmental files [I infer the Department of Immigration]” bears on the issue before me. There was no basis upon which it was permissible for the Commonwealth to rely on that refusal (the facts upon which it may have been made remaining undisclosed) as a premise for the submissions it advanced.
191 In so far as all of the evidence in this proceeding is concerned, that which throws light on the issue of Mr Scholes’ relationship with his fiancé is entirely consistent with Mr Scholes having a wholly genuine belief in the strength of his relationship with Tayo and his believing that Tayo then had reciprocated, and has continued to reciprocate, his feelings.
192 For the above reasons I reject the Commonwealth’s submission that Mr Scholes’ history with the Yusuf family (and in particular with Tola and Tayo) calls in question his general credit. The history Mr Scholes gave in cross-examination might be said to suggest that Mr Scholes was naive and vulnerable to being taken advantage of but those are not characteristics inherently associated with untruthfulness. I reject that is a basis for a finding of want of general credit on his part.
193 Without Mr Dinelli ever having directly put to Mr Scholes that he was dishonourable in his conduct or dissembling in respect to that history I am satisfied that that the Commonwealth’s submission not only must be rejected but also that there was never a sound foundation for it to have been advanced by a model litigant.
The reality of Mr Scholes’ consent
194 Mr Dinelli submits that to establish the tort of false imprisonment, Mr Scholes must establish:
(1) The Commonwealth’s conduct was contrary to his consent; and
(2) Any imprisonment involved a total restraint of his liberty.
195 I put aside for the moment the second of those propositions. It potentially involves some complex questions of law but Mr Scholes’ case has at all times been conducted on the simple basis that if the Court is to find that he gave actual consent, not involving the overbearing of his will, to his being picked up from Ilero and transported by Pilgrims to Lagos without at any time him withdrawing his consent, his case must fail.
196 In that regard there are only three witnesses who gave first hand evidence of the relevant circumstances: Mr Scholes, Ms Wilson and Mr Aliyu.
197 Mr Scholes’ evidence, summarised crudely, is that in the aftermath of his kidnapping he had told Ms Wilson on at least three occasions that he did not need and did not want consular assistance. He informed her that he had returned with his fiancé to a place of safety in Ilero. Mr Scholes’ evidence is that he was surprised when Mr Aliyu had turned up with a convoy of armed men. He had had no foreknowledge that they would arrive. Mr Alaba had been with him that night and he would have been aware if Mr Alaba had given directions to Mr Aliyu and the Pilgrims team to enable them find the house he was at. He had told Mr Aliyu that he didn’t want to leave Ilero. His fiancé and her mother were protesting his being taken. They had been crying. He had only travelled with Pilgrims because his will had been overborne having regard to the menace he had felt in the presence of armed men with guns who had arrived with instructions to take him to Lagos. On route he had made it plain to Mr Aliyu that he was being held against his will when he had told him that he had considered stealing a Pilgrim’s vehicle and driving it back to Ilero.
198 Ms Wilson’s evidence, summarised crudely, is that she spoke to Mr Scholes on a number of occasions including on the evening of 6 December 2017 and again the morning of 7 December 2017. Mr Scholes had rejected her initial advice that he not return to Ilero as she had offered during her first conversation with him but having ignored that advice the next day he had agreed to accept consular assistance to get him out of danger and bring him safely to Lagos.
199 Mr Aliyu’s evidence, summarised crudely, is that his understanding was that Pilgrims had allocated him the mission of rescuing Mr Scholes from a place of potential danger and bringing him to Lagos. Because of potential dangers Pilgrims had secured the assistance of armed police to protect that mission. A convoy of Pilgrims vehicles had arrived in Ilero late in the evening. Mr Aliyu had no local knowledge of the village. He sought and obtained Mr Alaba’s assistance to guide him to the Yusuf household where Mr Scholes was staying. Mr Scholes had shown no surprise. There had been no protest from him or the Yusuf family. Mr Scholes had asked if Tayo could come with him. Mr Lemmer had informed Mr Aliyu that the mission brief extended only to Mr Scholes. Despite having been so informed Mr Scholes had chosen to leave Ilero and go with Mr Aliyu. There had been nothing intimidating in Mr Aliyu’s conduct or that of the armed MOPOL men. He did not recall (and rejected it having been said) when on route to Lagos the next morning after the convoy had stopped to refuel and had left Mr Scholes alone, that Mr Scholes had later said to him that he had thought about stealing a Pilgrims vehicle and returning to Ilero.
Did Mr Scholes tell Ms Wilson he would accept consular assistance?
200 In strict logic it is unnecessary for the Court to express a firm conclusion as to whether Ms Wilson’s evidence (that Mr Scholes had agreed to accept the relevant consular assistance) is to be preferred over that of Mr Scholes (that on at least three occasions he had rejected that offer). It is logically possible that Mr Scholes might have rejected the offer Ms Wilson gave evidence that he had accepted yet nonetheless have changed his mind and willingly returned with Mr Aliyu to Lagos. Conversely Mr Scholes might have at one point told Ms Wilson that he was prepared to accept consular assistance yet upon reflection changed his mind later as he was entitled to do. In the aftermath of the traumatic experiences Mr Scholes had suffered, and having regard to the prospect that leaving Ilero would separate him from his fiancé, that he may well have oscillated between being convinced of the wisdom of any such decision is hardly implausible.
201 However the truth of what Mr Scholes did state to Mr Wilson is nonetheless relevant to that further question. A finding that Mr Scholes had informed Ms Wilson he would accept the consular assistance he had been offered is potentially significant to the Court’s assessment of his later conduct.
202 I mean no disrespect to the firm conviction that I accept Mr Scholes has as the truth of his evidence of but I do not think it open to me to conclude that his account of having firmly rejected Ms Wilson’s offer on three occasions can be accepted. That is not because I am satisfied that Ms Wilson has a more plausible recall of the detail of those events. In cross-examination Ms Wilson conceded that her present recall was quite limited.
203 I have reached that conclusion nonetheless having regard to the fact that Ms Wilson being unshaken in the critical core of her evidence that Mr Scholes had agreed to accept the consular assistance DFAT had offered him is corroborated by the near contemporaneous cable that Ms Wilson authored and sent at 6:05pm on 7 December 2017, that is on the afternoon of the same day as is uncontentious that both she and Mr Scholes spoke. The full text of that cable is set out at [122] above.
204 Parts of Ms Wilson’s cable appear to accurately record circumstances which I am satisfied must have been the subject of their conversations. For example in paragraph 4 Ms Wilson records Mr Scholes raising with her that his diary, passport and credit card were with Tola and Ms Wilson having responded that “Post” would arrange for their return. It is, I infer, common ground that that is what Ms Wilson arranged for and that is what Mr Taylor secured. No other premise but that it was what Mr Scholes told Ms Wilson can reasonably explain that event. That there might be some unrecorded account of Tola providing the information is highly implausible.
205 It is often remarked that an ounce of documentary evidence is worth a pound of later recall – I see no reason why that well-worn adage should not be applied in this instance. The cable Ms Wilson authored and sent is consistent with and significantly corroborative of her evidence.
206 While Ms Wilson does not appear to have made verbatim notes of what was said as between herself and Mr Scholes what she records at paragraphs 4 and 6 of the cable she authored and sent very shortly after those conversations is unambiguous. In it Ms Wilson records Mr Scholes having agreed to being moved to Lagos. She records that she had later spoken to Mr Scholes later to inform him that “Post’s security was on the way”. She records that Mr Scholes seemed relieved and had “noted that his adventure is over”. What Ms Wilson recorded as to Mr Scholes’ position as set out at paragraph 6 of her cable cannot be accounted for by innocent misunderstanding. Ms Wilson was unshaken in cross-examination that she had a firm present recall that Mr Scholes agreed to accept the consular assistance she had offered to make available to him and that she would not have proceeded to make the arrangements she did had he refused it.
207 If there might be a plausible motive for Ms Wilson to have falsely recorded that Mr Scholes had accepted her offer and had told her that his “adventure was over” such a motive was not put to Ms Wilson in her cross-examination. Nor do I apprehend there to be any reason inherent in the context of events for the Court independently to infer she may have had such a motivation. It was common ground that Ms Wilson’s firm view at the time was that Mr Scholes would be best advised to leave Ilero for the safety of Abuja or Lagos but what might have motivated her to lie about Mr Scholes’ willingness to accept her advice and then set in train events to pick him up from Ilero is elusive.
208 In cross-examination Mr Scholes asked Mr Lemmer (the Lagos based director of Pilgrims) whether the High Commission had told him that Mr Scholes had consented to his being rescued to which Mr Lemmer answered affirmatively. Mr Scholes did not further cross-examine Mr Lemmer to the effect that his answer was false. He did not put to him that that Pilgrims had been instructed by the Commonwealth to seize Mr Scholes and bring him to Lagos irrespective of his consent.
209 In the above circumstance I reject that Mr Scholes’ evidence is to be preferred over that of Ms Wilson.
210 Preferring Mr Scholes’ evidence would require the Court to accept that Ms Wilson not only falsely recorded his having consented to being collected from Ilero in an official cable sent to the highest level of government but also that she would risk putting in train the engine of an expensive “rescue mission” by Pilgrims on that deceitful premise. If the truth was not as she recorded, Mr Scholes could have simply refused to co-operate with Pilgrims on the basis that on three occasions he had firmly rejected Ms Wilson’s offer of consular assistance. The uncontested evidence before the Court is that Pilgrims was told that Mr Scholes had agreed to be picked up by its team from Ilero and transported to Lagos. I address below why I am satisfied that there is no reason to doubt Mr Alyiu’s evidence that had Mr Scholes told him he did not want consular assistance he would have contacted his boss. His boss, who had been informed that Mr Scholes had consented to the assistance Pilgrims was tasked to provide, could have been expected to have brought that unanticipated circumstance to the High Commissioner’s attention.
211 Ms Wilson would have had to have risked, without any plausible reason for her taking such that risk having been suggested, being blamed for having set in motion an expensive wild goose chase.
212 I am satisfied, notwithstanding Mr Scholes’ memory and evidence to the contrary, that Mr Scholes did tell Ms Wilson he had accepted her offer of consular assistance for his transport from Ilero to Lagos.
213 I specifically find that Ms Wilson also informed Mr Scholes (as is recorded in paragraph 6 of her cable) that “Post’s security” was on the way to collect him.
Did Mr Scholes nonetheless refuse consent to his collection by Pilgrims in Ilero?
214 However that is not the end of the matter. I have earlier indicated that that it might be accepted that Mr Scholes told Ms Wilson that he was prepared to accept consular assistance but that would not preclude the possibility that he had changed his mind by the time the Pilgrims convoy turned up. If he had changed his mind, Mr Scholes would have been entitled to have his reconsidered position respected no matter the inconvenience his earlier indication might have occasioned.
215 However I do not accept that it is open to the Court to conclude, on the balance of probabilities, that to be the fact.
216 Two witnesses gave first hand evidence of the events of that night; Mr Scholes and Mr Aliyu.
217 I have earlier indicated that I am satisfied Mr Scholes gave evidence in this proceeding consistently with the truth as he recalled it. However that a witness believes his or her evidence is the truth does not compel a finding that the facts are as that witness recalls.
218 Thus I have earlier concluded, with the benefit of the corroborating contemporaneous record made by Ms Wilson that her evidence is to be preferred to that of Mr Scholes regarding his having told her that he wished to have the assistance she had offered him.
219 Nothing in Mr Aliyu’s demeanour or responses during his cross-examination suggested any want of credit on his part. Mr Scholes did not challenge the history Mr Aliyu gave as to his background and experience in the provision of highly sensitive and important security services or attack his credit generally.
220 I record my finding that Mr Aliyu was, in every respect, a highly impressive witness.
221 If a concession became appropriate (as it did when Mr Scholes put to him that his having to stop the car to allow Mr Scholes to vomit from stress occurred on the run in to Lagos rather than the night before) he readily and without any resentment accepted correction.
222 On all of the critical points of his testimony Mr Alyiu was robustly unshaken in cross-examination.
223 Putting aside for a moment Mr Dinelli’s submission that the Court would be entitled to draw a Jones v Dunkel inference, the position is that there are two witnesses of events in which each played a significant part each giving evidence of their honest recollection of the relevant events but in respect of which one must be mistaken.
224 For Mr Scholes to succeed on the balance of probabilities he must persuade the Court that his account that he had told Mr Aliyu that he did not want to leave Ilero is to be preferred over that given by Mr Aliyu to the effect that when he had arrived Mr Scholes was waiting outside with the Yusuf family for the Pilgrims team to arrive; Mr Scholes had appeared entirely willing to go with him and had never told him that he wanted to stay in Ilero.
225 I am not so persuaded.
226 In respect of all but one of the critical aspects in which he and Mr Aliyu’s evidence is in conflict there is nothing to corroborate Mr Scholes account. The one exception is in relation to his evidence of having, on the drive into Lagos, told Mr Aliyu that he had had thoughts about stealing one of the Pilgrims’ vehicles and driving back to Ilero. I will return to that particular instance later and explain why, even if Mr Scholes did tell Mr Aliyu that he had considered that possibility, that does not serve as a basis for preferring his evidence more generally over that given by Mr Aliyu or for concluding he was thenceforth held by Pilgrims against his will.
227 I am not only satisfied that there is no basis on the balance of probabilities for the Court to prefer Mr Scholes’ account but also that Mr Aliyu’s evidence where it conflicts is to be preferred over that given by Mr Scholes.
228 Some important aspects of Mr Scholes’ account of the events in the immediate aftermath of his kidnapping are inherently challenging of acceptance. I have already mentioned one such aspect: that Mr Scholes had not told anyone from DFAT about Tayo having his possessions in her custody. For the reasons I have given I am satisfied that I am entitled to find that he had told Ms Wilson of that fact. I now return more specifically to the events of 7 December 2017.
229 Mr Scholes’ evidence is that he and Mr Alaba were together at all times on the evening of 7 December 2017 (outside the Yusuf family home) at a social gathering. Mr Alaba could not have given directions to Mr Aliyu to explain how to get to where they were without Mr Scholes being aware of such a conversation: it had not happened.
230 However it is uncontentious that on 7 December 2017 Pilgrims’ convoy arrived late in the dark on the outskirts of Ilero. Mr Scholes does not dispute that without local assistance locating any individual house after nightfall in Ilero would have been impossible: Mr Scholes himself had never learned the street address of the Yusuf household. Mr Scholes’ evidence is that he assumed the Pilgrims team must have found the Yusuf household after contacting the local police and obtaining their assistance.
231 Mr Aliyu’s evidence is that when Pilgrims arrived at the outskirts of Ilero at night and needed to locate where Mr Scholes was staying he had rung Mr Alaba on Mr Alaba’s mobile. Mr Alaba had made arrangements to meet with the Pilgrims team and once they had met they had followed him to find their way to the house where Mr Alaba had said Mr Scholes was staying.
232 Mr Scholes did not cross-examine Mr Aliyu to put that in issue. Even assuming that his failure to do so was an error made by an unrepresented litigant which might be overlooked, the witnesses who were present at the Yusuf household who Mr Scholes had listed to give evidence did not make themselves available for that purpose. Mr Alaba was one of those witnesses who failed to testify.
233 Nonetheless, I reject Mr Dinelli’s submission that the Court should draw a Jones v Dunkel inference that Mr Alaba’s evidence would not have assisted Mr Scholes. The rule in Jones v Dunkel is that when there has been an unexplained failure by a party to call evidence, to call a witness or to tender documents, the Court may draw an inference that the uncalled evidence would not have assisted that party. The premise for the inference turns on the fact that a party has elected not to call a witness whose evidence could be expected to have been given if it were favourable to that party. That logic operates perfectly well assuming the party has in his or her hands the capacity to compel the attendance of a witness – however in this case Mr Dinelli has advanced no submission that Mr Scholes had power to subpoena Mr Alaba or to enforce such a subpoena: he and Mrs Yusuf and Tayo are resident in Nigeria. I have already indicated that Mr Scholes clung to the last that at least some of his intended witnesses would make themselves available.
234 Mr Alaba, Mrs Yusuf and Tayo cannot be interrogated as to their reasons for declining to give evidence but not every reasonable hypothesis requires the conclusion that their truthful evidence would not have assisted Mr Scholes. It is not implausible that one reason for their not wishing to give evidence might be that they did not want their giving evidence to be the cause of exacerbating the conflict that appears to have arisen within the Yusuf family after Mr Scholes had identified Tola’s role in bleeding him for money. Indeed had they given sworn evidence it is not impossible that they might have feared (reasonably or otherwise) that that evidence would be used as a basis for bringing proceedings against Tola either in Nigeria or Australia. In Nominal Defendant v Rooskov [2012] NSWCA 43 the Court emphasised that there is no requirement that an inference be drawn. It is simply available where the appropriate circumstances exist. In those that exist in this case I decline to draw a Jones v Dunkel inference.
235 However, for whatever reason their absence might be accounted for, their collective failure to give evidence leaves Mr Scholes’ account without corroboration.
236 I have accepted Ms Wilson’s evidence that Mr Scholes had been informed by her that “Post’s” security team was on its way to Ilero to pick him up and transport him to Lagos.
237 I am satisfied that Mr Aliyu’s account as to how Pilgrims located the Yusuf household with Mr Alaba’s assistance is to be preferred as against Mr Scholes’s evidence that Mr Alaba was with him at all times and could not have done so.
238 Mr Scholes’ own evidence is that he was outside with members of the Yusuf household (and members of the local community) when the Pilgrim’s team arrived. That is not inconsistent with Mr Aliyu’s evidence that Mr Scholes appeared to be waiting for him.
239 In light of my accepting that Mr Alaba assisted Mr Aliyu to locate where Mr Scholes was staying in Ilero it is not open to the Court to prefer Mr Scholes’ account that that he was taken by surprise when the Pilgrims convoy of three vehicles had arrived to collect him.
240 I am further satisfied that it is implausible for the Court to not to prefer Mr Aliyu’s evidence that Mr Scholes did not communicate to him any objection to proceeding to Lagos in contrast to Mr Scholes’ evidence that he had told Mr Aliyu that he did not want to travel with him.
241 It will be recalled that Mr Scholes’ case is that not only did he tell Mr Aliyu that he did not want to go with Pilgrims but also that his fiancé and her mother were crying and the crowd was protesting against Mr Scholes being forced to leave with Pilgrims.
242 I reject that was the case.
243 I am satisfied that it is quite implausible that had Mr Scholes told Mr Aliyu that he had rejected Ms Wilson’s offer of consular assistance and did not want to go with him that Mr Aliyu would have taken it upon his own head to have ignored that objection and become party to forcing (or intimidating) Mr Scholes into compliance.
244 There is nothing in evidence to justify any inference that Mr Aliyu was at all personally invested in the outcome. Mr Lemmer had simply instructed him to undertake a task involving some potential danger for Pilgrims. Mr Aliyu understood that task to be, and described it in his evidence as being, a “rescue mission”. His mission as he had understood it was not to seize an unwilling foreign national from a protesting family.
245 Mr Scholes cross-examined Mr Aliyu (referring to him as Mr Mustafa) about how he would have responded if he had come to know he had withdrawn his consent. Their exchange was as follows:
What would he have – Mr Mustafa, what would you have done if Mr Scholes had said that he did not want to be with you and he wanted to return to the village?---Immediately, I would call my – immediately, I would call my boss to inform him of that because I’m not .....
Pardon? Could you repeat that last ---
HIS HONOUR: His answer he would have immediately communicated with his boss?---My boss .....
Because that was not his mission.
I interpose that although it is not captured on the transcript the reference to “that” not being “his mission” are the words I heard Mr Aliyu speak at the time Mr Scholes interrupted him to ask him to repeat what he had said.
246 Mr Aliyu’s evidence as to what he would have done if he had discovered that Mr Scholes did not want or was refusing Pilgrims’ assistance has the ring of simple truth. Mr Aliyu was a trusted and experienced employee of Pilgrims but he was not its decision-maker. I have no reason to doubt his evidence that he would have called Mr Lemmer for instructions if his task had ever evolved in a way inconsistent with what he understood to be his mission.
247 Had Mr Aliyu called Mr Lemmer it is inconceivable there would not be communication between Mr Lemmer and the Australian High Commission about that unanticipated circumstance. It will be recalled that Mr Lemmer’s evidence is that he had been told that Mr Scholes had agreed to being collected from Ilero and transported to Lagos. Pilgrims was only the Commonwealth’s agent in that regard. It is implausible that had he been told Mr Scholes was refusing to travel with Mr Aliyu that Mr Lemmer would not have immediately reverted to the High Commission to inform it of that unanticipated development. There is nothing in the evidence to suggest that any such communication took place and there is nothing in the discovered e-mails between Pilgrims and the High Commission to suggest any such thing occurred. I am satisfied it did not occur because Mr Scholes never said any such thing.
248 Had I not been satisfied that Mr Scholes was ready and waiting to leave with Pilgrims and never indicated any contrary disposition the presence of armed men arriving at night might have required attention to be given to the possibility that he had been, notwithstanding their good intent, intimidated into yielding against his will. But that case is not this case.
249 To the contrary I am satisfied that, although doubtless in a high state of stress given the circumstances he had endured and the uncertainty of his future, Mr Scholes was waiting with the Yusuf family, ready to leave for Lagos as he had informed Ms Wilson that he would be, when Pilgrims arrived.
250 Moreover, if needs be said, I am satisfied that Mr Scholes’ recall of the conduct of those armed men is misleadingly inaccurate. Mr Scholes’ evidence-in-chief was that all of the Pilgrims team were armed. He recalled between 8 and 10 heavily armed men with AK-47 shotguns having moved towards himself and Mr Aliyu.
251 Mr Scholes did not cross examine any of the Commonwealth’s witnesses so as to put in issue that only the four MOPOL officers who had been assigned to protect the convoy were armed. I accept that evidence. I am satisfied no Pilgrims staff had carried weapons. Mr Aliyu also gave evidence, which I accept, that the MOPOL officers had never conducted themselves in any way as would have justified Mr Scholes believing they were threatening him.
252 However, Mr Scholes and Mr Aliyu are on common ground that Mr Scholes did ask him if his fiancé, Tayo, could travel with him. Mr Aliyu had not known whether that was permitted so he had called his boss, Mr Lemmer, for advice. His answer had been “no”.
253 I have no doubt that that Mr Scholes being told Tayo could not come with him would have triggered powerfully conflicting emotions in him. He was being presented with a ‘Sophie’s Choice’. He could be taken to safety only by leaving behind the woman he loved and who he intended to marry. He had just endured the trauma of being held captive for ransom for 8 days with her.
254 It can hardly be surprising that when later recalling those events Mr Scholes might come to believe, falsely but with certainty, that saving himself at the price of leaving his fiancé behind was not a decision he could have voluntarily made. It must have been something he was forced into. However whatever the reason might be I am not satisfied that Mr Scholes is a reliable historian of those events.
255 That Mr Scholes was deeply traumatised at the time in consequence of not only that event but also all that had happened to him as a victim of kidnapping is not question: Mr Aliyu gave uncontested evidence that Mr Scholes had remained highly stressed during the trip back to Lagos. His having to ask Mr Aliyu stop at the side of the road because he needed to vomit is simply an overt physical manifestation of what, I am prepared to accept, of the doubts, fears and uncertainties which must have been constantly playing on his mind.
256 I am therefore satisfied that, without doubting that Mr Scholes gave evidence of his honest recall, that I am entitled to prefer that given by Mr Aliyu.
257 Exactly how and when Mr Scholes came to have a false memory of the relevant events need not be determined. However I am satisfied that whatever the reason might be and whenever his false belief came to be held aspects of the evidence Mr Scholes gave regarding the events of 6–8 December 2017 immediately following his release by his kidnappers of what he was certain was the truth, was not.
258 Cruel though the dilemma Mr Scholes had been confronted with, I reject that his choice to leave Ilero without Tayo was relevantly compelled. He was not being restrained against his will when he entered the Pilgrims vehicle that was then waiting to take him back to Lagos.
259 I also reject Mr Scholes’ evidence that Tayo and Mrs Yusuf were crying and protesting his being taken from the family. In the absence of any evidence from them (they were both scheduled to give evidence but did not) I am nonetheless not satisfied I am entitled to draw a Jones v Dunkel inference that their evidence would not have assisted him.
260 However I accept Mr Aliyu’s evidence that despite Mr Scholes having been informed that Tayo could not come with him Mr Scholes nonetheless got into the car with him to go to Lagos. I am satisfied that was not because Mr Scholes was compelled to do so or had been intimidated by armed men to yield his will to. I am satisfied it was a choice Mr Scholes, no doubt with conflicting emotions, had voluntarily made.
261 I further reject that Mr Scholes had communicated that he had changed his mind later on the trip to Lagos.
262 Mr Scholes’ evidence is that after he and Mr Aliyu had overnighted at a local hotel because the convoy in which they were travelling was running out of fuel and the roads at night were dangerous, at some point in the morning the convoy stopped at a service station. He was left alone in the Pilgrims’ vehicle. Mr Scholes’ evidence is that after Mr Aliyu returned to the car he told Mr Aliyu that he had thought about stealing it and driving back to Ilero.
263 Mr Aliyu’s evidence (see above at [160]) is that he had no recall of Mr Scholes saying that.
264 However I accept that Mr Scholes did later recount to Ms Wilson that at one point in his trip to Lagos he had thought about stealing a Pilgrims vehicle and returning to Ilero. His having told that to Ms Wilson corroborates his account of that event: although it is corroborates only that he spoke those words, not that Mr Aliyu had heard or paid attention to them. I accept Mr Aliyu’s evidence that he has no recall of any such statement.
265 Ms Wilson’s evidence is that she had not regarded Mr Scholes as having made a serious remark. Her evidence in cross-examination was:
Do you recall something to that effect?---I remember some joviality around – around his state of mind, but I don’t remember anything specifically where he said he wanted to return to the village – and said – said in what I would have considered to be a serious fashion.
Ms Wilson therefore did not pass on what she took to be a jocular remark either to the High Commissioner or to Mr Taylor.
266 My acceptance that Mr Scholes did make such a statement, albeit unheard by Mr Aliyu, is immaterial to the outcome of this proceeding. The content of the words he spoke goes no higher than him telling Mr Aliyu, following his having been left alone in a Pilgrims vehicle while at the service station on the outskirts of Lagos on the morning of 8 December 2017 that he had considered stealing the car he was in and driving it to Ilero to be with the Yusuf family and his fiancé.
267 Assume, contrary to his evidence and my findings, that Mr Aliyu had heard Mr Scholes say those words they would not in any event have represented a withdrawal of his consent. What Mr Scholes claims to have said falls well short of his asserting to Mr Aliyu that he had changed his mind and had withdrawn his consent to remaining with the Pilgrims team as it travelled on to Lagos. All that Mr Scholes gives evidence of saying is to the effect that he had momentarily considered (but had not acted upon) what would have been self-evidently a foolish thing for him to have done. Even if I am not entitled to draw the inference that stealing a car from Pilgrims in Nigeria might have had serious consequences for him Mr Lemmer’s evidence in cross-examination made that clear.
268 Mr Scholes’ statement (assuming it was both made and heard by Mr Aliyu) might well have also suggested to Mr Aliyu that Mr Scholes was still troubled by the decision he had made to leave Ilero (as he may well have been) but there is no plausible way that such a remark can be understood as a definitive (or even hesitant) assertion on Mr Scholes’ part that that he had changed his mind and was withdrawing his consent to continuing with Pilgrims on their drive into Lagos.
269 If he had changed his mind there was nothing to stop Mr Scholes directly saying so. I reject that the words he gives evidence of having used conveyed that meaning. Mr Scholes’ mentioning having thought about stealing a car does not evidence that his consent to his ongoing transport to Lagos had been withdrawn.
270 Finally, I also reject that I should find that Mr Aliyu spoke the words Mr Scholes gave evidence of as I have recorded at [82] but again even if Mr Scholes’ evidence was to be accepted that which he gives evidence of being said by Mr Aliyu has no bearing on whether or not he had earlier consented or later withdrawn his consent. Mr Scholes gave no evidence that he had responded in any manner suggesting either of those conclusions.
271 Out of an abundance of caution I reject that anything Mr Scholes said to Australian officials in the aftermath of his being brought to Lagos amounts to corroboration of his now clear memory of having been seized by Pilgrims against his will from Ilero and taken to Lagos. I accept that Mr Scholes did promptly raise with Mr Lehmann his distress regarding his having to leave his fiancé behind in Ilero. Mr Lehmann responded to him that it was DFAT’s policy to confine assistance to Australian nationals where others were citizens of the country in which they were in distress.
272 What Mr Scholes said to Mr Lehmann does not corroborate his account beyond the reality that he had been compelled to make a heart wrenching choice. As noted above at [250]–[251] Mr Scholes would be taken from where he had been told he was not safe only if he was prepared to leave behind the woman he loved, who he intended to marry and with whom he had just endured the trauma of being held captive for ransom for 8 days.
273 Mr Scholes’ complaint about his having been put in that position and his seeking Mr Lehmann’s assistance to obtain a visa for Tayo is consistent with that aspect of his account but it does not corroborate his evidence of having been restrained against his will in leaving Ilero.
274 It is conspicuous that Mr Scholes made no complaint of the kind he now advances to any Australian official until after he had returned to Australia. He made no claims of the kind he now advances whilst in Nigeria.
275 Mr Scholes gives evidence that he told the AFP welfare team who assisted him in Melbourne that he had been brought from Ilero to Lagos against his will but he had not done so previously, he did not identify when or in what circumstances that occurred, and he did not call those persons as witnesses. I place little store on that account.
276 The first time Mr Scholes appears to have articulated such a claim is in the letter he wrote to the Australian High Commission in South Africa on 13 December 2017 which was sent in the circumstances I have described above after his return to Australia. In that letter Mr Scholes articulated the basic premises of his present claim and intimated that if Tayo was granted a visa he would not take legal proceedings of the kind he ultimately pursued.
277 I reject that is plausible corroboration of his present evidence.
278 Threatening legal action unless a visa was to be granted to Tayo was ill-judged on Mr Scholes’ part but, consistently with my reasoning as to his honesty I reject his doing so counts against his credit as a witness of the truth.
279 I have earlier indicated that it could hardly be surprising that Mr Scholes might have come to believe, falsely but with certainty in retrospect, that he could only have made a self-protective decision to save himself at the price of leaving his fiancé behind if he had been forced to do so and deprived of choice. That may well have come to be his state of mind by that time.
280 However before I leave the question of Mr Scholes’ representations on Tayo’s behalf it is appropriate for the Court to observe that it confesses to having some scepticism that DFAT policy precluded the possibility of Pilgrims being tasked to rescue not only Mr Scholes but also his fiancé. Ms Dee who was called by the Commonwealth to provide evidence of DFAT’s policies did not speak to that subject.
281 Moreover the initial tasking of Pilgrims as was communicated to them by Mr Taylor by e-mail on 7 December 2107 refers to DFAT having advised Mr Lemmer:
Our Australian citizen and his Nigerian girlfriend have been released, and we are looking to getting them back to Lagos. They are currently in a town called Ilero, Oyo State, at the home of the Step Father of the Nigerian girlfriend. Can you provide transport to Lagos today, and can you also give us a rough estimate of the cost?
282 There is in evidence an e-mail sent by Mr King, Head of Kidnap Response and Special Reference Section in Canberra to the High Commission which refers to there being “a lot of senior executive interest in this case” and advising “we think it will remain so until he has left the country”
283 Mr Scholes did not cross-examine any of the Commonwealth’s DFAT witnesses on the premise that the change of Pilgrim’s tasking as had required him to choose between his own safety and leaving his fiancé behind was not the product of a rigid policy but rather the result of a hard headed decision that to permit him to bring Tayo with him to Lagos might stand in the way of quickly resolving the incident in a manner which would satisfy Canberra. Perhaps someone later anticipated that allowing him to bring Tayo with him to Lagos would have complicated his/their leaving Nigeria and returning to Australia.
284 As it is not an issue requiring resolution I make no findings as to why the position changed between 1:16pm on 7 December 2017 (when the rescue of both Mr Scholes and Ms Tayo Yusuf had been tasked to Pilgrims) and that which later prevailed. I observe simply that it is self-evident that an unexplained decision must have been made by someone with authority in that regard. That left Mr Scholes having to make a distressing choice.
Post arrival in Lagos until Mr Scholes was given his passport, money and credit cards back
285 In an abundance of caution I reject that anything Mr Lehmann said to Mr Scholes once he had arrived in Lagos can justify a finding that, independent of his earlier consent to have travelled to Lagos, he was falsely imprisoned in Lagos at the Sheraton until his possessions had been restored to him. I acknowledge that Mr Lehmann urged Mr Scholes not to leave the hotel where he was accommodated until Mr Taylor arrived, and he had conformed his behaviour to that request, but I reject that involved any requirement that he do so.
286 Mr Scholes fails to discharge his burden of proof in the case he has brought against the Commonwealth. To the contrary I am affirmatively satisfied that he consented, albeit almost certainly with conflicting emotions and highly traumatised, to his being collected by the security team (Pilgrims) that was tasked by the Commonwealth (DFAT) to bring him from Ilero to Lagos.
If I am wrong in primary findings
287 It is strictly unnecessary to record contingent findings but if I am wrong in my conclusion that Mr Scholes was not compelled against his will to travel with Pilgrims from Ilero to Lagos I would have concluded that his subsequent restraint was of a sufficient degree as to entitle him to make good a claim of false imprisonment up until the time his possessions were returned to him. I need not traverse the case law but it is uncontentious that a person may be falsely imprisoned yet there be an open window which would allow them to escape the room of their confinement if that window leads to a drop which might be lethal.
288 Once on route from Ilero (and in Lagos until Mr Taylor returned his possessions to him) Mr Scholes was without money, identification or means of self-protection. The Commonwealth’s own case is that his safety was at significant risk. I reject that the possibility that he might at any point have directed Mr Aliyu to let him out of the vehicle he was travelling in, had I not found he had consented to that, would serve in the circumstances of his extreme vulnerably as a plausible window for his escape.
289 I dismiss the Applicant’s case. For completeness I formally record the following conclusions the Court has reached in respect of the agreed issues that the parties submitted for trial.
Issue 1
At any time between the evening on 7 December 2017, when the Applicant was collected by the Respondent’s agents from Ilero, and the morning of 8 December 2017, when the Respondent’s agents delivered the Applicant to the Sheraton Hotel in Lagos, was the Applicant’s restrained against his will by the Respondent’s agents?
Answer: No
Issue 2
If yes to Issue (1), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
Answer: Unnecessary to answer
Issue 3
At any time between the morning of 8 December 2017, when the Applicant arrived at the Sheraton Hotel in Lagos, and when Mr Scholes boarded his flight to Australia at the Lagos international airport on 10 December 2017, was the Applicant restrained against his will by the Respondent’s agents?
Answer: No
Issue 4
If yes to Issue (3), was the restraint of the Applicant caused by a direct and intentional act of the Respondent’s agents?
Answer: Unnecessary to answer
Issue 5
If yes to any of the above, did the relevant conduct of the Respondent’s agents, in the circumstances, constitute the tort of false imprisonment with regard to the Applicant?
Answer: Unnecessary to answer
Issue 6
If yes to Issue (5), what is the measure of the damages or compensation for that tort to which the Applicant has proven an entitlement?
Answer: Does not arise.
290 The ordinary consequence, as Gleeson CJ, Gummow, Hayne and Crennan JJ explained in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 53 at [25]–[26] is that while there is “no absolute rule” generally the discretion to award costs is to be exercised in favour of a successful party. However, it is trite that ultimately the discretion to award costs is not fettered.
291 I note that on day 3 of the trial an unfortunate event occurred. It involved significant and cruel mockery of Mr Scholes as he was attempting to cross-examine Mr Lemmer. As the transcript of the following day reveals I noted that I did not accept Mr Dinelli’s submission that the conduct in question was not to be attributed to his client.
292 I have chosen to be oblique in these remarks because to refer in detail to the those circumstances without the necessity for doing so may well not only expose Mr Scholes to the hurt reliving that event but also cause the person who was inadvertently responsible: a person who has unconditionally apologised to Mr Scholes and the Court in terms which I accept are genuine, to be exposed to unnecessary public humiliation.
293 I have also earlier referred at [28]–[74] to Mr Dinelli’s extensive cross-examination of Mr Scholes regarding the circumstances in which he had travelled to Nigeria and formed a relationship with his fiancé Ms Tayo Yusuf. I have recorded my conclusion that the matters counsel put to Mr Scholes in those regards could not serve as a sound foundation for the Commonwealth’s submission that Mr Scholes’ conduct warranted an adverse conclusion to be drawn as to his general credit.
294 I have not heard the parties as to costs but subject to being persuaded to the contrary, the Court is entitled to be satisfied (a) that Mr Scholes was mocked during the proceeding and (b) that a not significant aspect of the trial involved an extended attack on Mr Scholes’ character by the Commonwealth absent an available forensic justification.
295 I take it to be uncontentious that the Court’s discretion as to costs may be influenced by a party’s conduct at trial. Those two circumstances have led me conditionally to conclude that there are special circumstances which justify the Court in the exercise of its discretion, not requiring Mr Scholes to pay for the costs of the trial notwithstanding his forensic failure. I exclude from that exception the costs that the Commonwealth incurred, as Mr Scholes acknowledged and thanked it for, in providing his scheduled Nigerian witnesses the opportunity to give their evidence remotely notwithstanding that opportunity was not taken advantage of.
296 Subject to that exclusion I will order that Mr Scholes as the losing party to pay the Commonwealth’s costs up to but not including trial held on 5–8 October as may be agreed or in default of agreement as may be taxed unless either party advises, no later than 4:00pm on 14 January 2022, that they would seek an alternative order.
297 If either party seeks an alternative order both parties shall have leave to file short written submissions limited to no more than 3 pages as to the orders for costs they submit are appropriate to be made by no later than 21 January 2022. The question so arising will be determined on the papers.
I certify that the preceding two hundred and ninety-seven (297) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. |
Associate:
