The organisers of a Melbourne Black Lives Matter rally were told by a police prosecutor that the charges brought against them were “fatally flawed” before Victoria Police’s principal solicitor stepped in to ensure the matter would still be prosecuted.
Melbourne Magistrates’ Court heard on Wednesday that during an internal review, a specialist prosecutor had uncovered a number of cases involving breaches of pandemic orders that had been based on defective charges.
Crystal McKinnon (left) and Meriki Onus were charged with breaching COVID rules by organising a Black Lives Matter rally in June 2020.Credit:Justin McManus
The lawyer representing the activists believes her clients could have suffered an injustice and is fighting to access more than 50,000 police files to determine whether similar cases have been withdrawn.
Barrister Felicity Gerry said the documents would help establish the reasons for the prosecution back-pedalling on the charges and whether the legal system had been brought into disrepute.
Amangu Yamaji woman Crystal McKinnon and Gunnai and Gunditjmara woman Meriki Onus were charged with breaching the chief health officer’s directions over their role in planning the march against Aboriginal deaths in custody, which attracted about 10,000 people in June 2020.
The protest became the subject of intense criticism and was wrongly blamed by some for sparking Victoria’s second COVID-19 wave.
At the time, stay-at-home measures in Victoria had banned public gatherings of more than 20 people. McKinnon and Onus were each fined $1652 for the breach and chose to challenge the penalty.
Last month, The Age revealed the women were advised the charges would be withdrawn as their legal team prepared for a contested hearing.
On Wednesday, the court heard that on June 29, an acting sergeant within the Melbourne prosecutions department contacted the women and told them the charges were “fatally flawed” and would be dropped.
He also indicated the internal review had discovered that there were other cases that could be abandoned as they were also based on defective charges.
However, on July 6, Victoria Police principal solicitor advocate Anthony Albore wrote to the women to inform them police would still seek to prosecute the matter and intended to file an application with the court to amend the charges.
In correspondence with The Age that same week, a spokesperson denied there were “broad issues associated with the withdrawal of COVID-19-related charges or penalty notices” issued by Victoria Police.
Prosecutor Andrew Sim said the decision to tell the women the charges would be withdrawn was regrettable but the acting sergeant who made that call did not have the authority to do so.
“There’s no great conspiracy here about malfeasance or a political decision,” he told the court. “It was an error of someone that thought they needed to file when they didn’t.”
Sim opposed Gerry’s application to access the documents, telling the court the files were located in different prosecution offices across the state and would need to be reviewed individually, a process that could take several months and reap meagre results.
“It’s a fishing exercise,” he said. “It’s fishing in a lake where there might be no fish.”
However, Gerry said Victoria Police had already committed to reviewing infringement notices issued for breaches of the chief health officer’s directions to ensure consistency, a process that was being overseen by the Independent Broad-based Anti-corruption Commission.
Magistrate Andrew McKenna said charges weren’t formally withdrawn until the matter was raised in court and added that decisions often went through a number of hands before a final result.
The hearing continues.
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