Hundreds of accused criminals could apply to have cases against them dropped after a man walked free from jail on the back of the police swearing in bungle.
The man, who spent six months in prison on remand, was released on Monday after successfully arguing his arrest and charge was invalid.
He was facing a string of serious charges including weapons, drugs, theft and driving charges.
He was also charged with damaging an emergency vehicle.
But he successfully applied to have the case dropped because the police officer who charged him was one of more than 1,000 wrongly sworn in between 2014 and 2021.
It is believed to be the first prosecution to collapse since the bungle was revealed a fortnight ago.
Magistrate Tony Parsons on Monday struck out all the man’s charges citing an “abuse of process”.
“The prosecution is tainted to the extent that the police informant has not been sworn in,” he said.
“To deprive the defendant of his liberty in this circumstance is an abuse of process.”
Mr Parsons noted the man had spent 178 days in pre-sentence detention, which was likely more than he would have served if sentenced. But he was released for the abuse of process, not due to time already served.
The case has prompted fears of a flood of similar applications to have charges dropped. Several applications have been made to have cases thrown out.
Legislation to correct the swearing-in crisis this week passed parliament, ensuring providing that any powers or duties performed by unsworn officers were valid. It also ensures the admissibility of evidence and legal liability of police officers is not affected by the administrative error.
But criminal defence lawyer Peter Morrissey, SC, said the legislation wouldn’t stop more challenges. “I am certain that no retrospective legislation will suffice to prevent defendants from trying, until the reach of the new Act is settled in court,” he said.
“The breaches which occurred are not mere technicalities, because the processes in place are designed to ensure that extensive investigative powers are only given in an accountable way.
“An interesting question might arise in court if an impugned Victorian officer took steps, such as seeking a warrant, as part of a joint state-commonwealth taskforce, and/or in relation to a commonwealth investigation or proceeding. The reach of Victorian legislative power might be tested. It’s an important issue, which will not be determined overnight.”
Criminal law specialist George Defteros believes the new legislation will cause “significant problems to the administration of justice”.
“It is attempting to invoke a law which will be retrospective in certain cases and not apply at all in certain other cases,” he said.
“I can see it causing significant issues for courts to try and validate an argument that a particular prosecution is brought forward in a proper manner and that it is not going to be found to be invalid, ultimately, when it is argued before a higher court.”
Defence lawyer George Balot said there was a common-law presumption that parliament intended to make legislation to operate prospectively rather than retrospectively.
“I foreshadow a number of problems in proving some criminal prosecutions beyond reasonable doubt in circumstances where those members, not properly sworn, purportedly exercised police powers,” he said.
“Accused persons are presumed innocent until proven guilty. The burden of proof is indeed a very high one and accordingly any doubt is often exercised in favour of accused persons, not the prosecuting authority.”
A Victoria Police spokesman said it was considering whether to appeal magistrate Parsons’ decision.
A government spokesman said: “The new legislation will amend the Victoria Police Act to retrospectively validate the appointment of police officers as acting assistant commissioners by deputy commissioners, which will prevent current and future cases being affected as all police actions will be validated.”