Why it matters
- Victorian man Scott Williams, 42, is asking the court to throw out his charges after it was revealed an improperly appointed police officer laid them.
- Senior barrister Dr Ian Freckleton, QC, acting for the prosecution, warned it could establish an “extremely problematic precedent” if his application was granted.
- Law enforcement authorities disclosed last month that a legal bungle meant more than 1000 police, protective service officers and custody officers were sworn in by someone without the authority to do so.
- Officers need to be given legal authority to exercise police powers.
A Victorian man charged by a senior constable who did not have the power to act as an officer after a legislative error is seeking to have the charges thrown out of court.
Defence lawyers in Melbourne have spent the last fortnight scrambling to identify affected cases after authorities disclosed last month that a legal bungle meant more than 1000 police, protective service officers and custody officers were sworn in by someone without the authority to do so.
Chief Commissioner Shane Patton and Police Minister Lisa Neville detail the issue of officers being incorrectly sworn in to media.Credit:Wayne Taylor
Scott Williams, 42, was charged for failing to comply with an order from the Magistrates Court on October 29, 2019. The charging officer, Senior Constable Melissa Marcucci, was later found to have been improperly sworn in by Victoria Police.
Senior barrister Ian Freckelton, QC, acting for the prosecution, warned magistrate Therese McCarthy on Monday that if she granted Mr Williams’ application to have his charges dropped over the error, it threatened to establish an “extremely problematic precedent”.
“To conclude that she was not a police officer, [that] she was merely a member of the community who mistakenly thought she was a police officer … would set an extremely problematic precedent,” he said.
The government last month announced the issue would be resolved with retrospective legislation. An almost identical error occurred in New Zealand, which was rectified with retrospective legislation in 2013.
The error arose when changes were made to the Victoria Police Act by the former government in 2014, which meant deputy commissioners appointed acting assistant commissioners without the required power. Those acting assistant commissioners then swore in some graduating police officers.
Internal emails obtained by The Age show that Victorian Legal Aid, the largest provider of defensive legal services in the state, was denied access to a list being compiled by police in order to identify people affected by the bungle.
The emails also explain that police are relying on individual officers to come forward and disclose if they were involved in cases that might be affected.
“[Victoria] police are relying on individual members to notify prosecutions if they are an affected member and have any cases,” the emails, written by a senior Legal Aid lawyer, say.
Victoria Police Chief Commissioner Shane Patton said the problem would be fixed by retrospective legislation.Credit:Wayne Taylor
“This obviously puts a lot of faith in individual police members to do the right thing and also doesn’t account for members that might be on leave or are not an informant but provided a critical role in the investigation.”
Dr Freckelton argued that the court should use an old rule called the ‘de facto officer’ doctrine, which preserves the legality of a public official’s acts when there’s later found to be an error in the official’s appointment.
“This is but one of a number of other cases too numerous to identify readily, which will be affected by the difficulty which has emerged,” Dr Freckelton said.
“Should you decide that the de facto officer doctrine does not apply, then there is a problem that extends beyond the Magistrates Court, right through the Victorian community immediately.”
Mr Williams’ barrister, Dermot Dann, QC, disagreed, telling the court that legislation would soon fix the defect and would not cause the complication that Dr Freckelton was predicting.
“The answer to the question is: was the charge validly laid and was the charge and summons validly issued? The answer … seems to be clearly, no.”
Ms McCarthy said she would decide as quickly as possible, “having regard to the potential impact of [the precedent]″.
Victoria Police declined to comment.
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