Lawyer says prosecution ‘playing games’ in weapons case

Push to delay hearing for man facing a mandatory jail term if convicted after charges upgraded.

A man is accused of possessing a shortened firearm in Andergrove.

A MACKAY lawyer has taken a swipe at prosecution for "playing games" over dropping a case against his client only for him to be later recharged with a more serious offence that invokes a mandatory 12-month jail term.

Police allege Darren James McRae unlawfully possessed a weapon at Andergrove on October 4 last year.

The 47 year old was initially charged with having a category B rifle, but in January this year prosecution offered no evidence and the case dismissed the day it was meant to be heard in Mackay Magistrates Court.

Mr McRae was then later charged with possessing a shortened firearm in a public place - on the same date and location - which has a mandatory penalty of 12 months in jail.

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Defence lawyer Aaron Sellentin, of Barron and Allen Lawyers Mackay, applied to stay the case arguing it was the same charge, his client would be prejudiced and "this is clearly an underhanded tactic by the police and prosecutions".

A hearing in relation to the new charge is set for Monday next week.

Mr Sellentin argued the prosecution had previously "prepped" this case on the lesser charge for a hearing "with the same evidence".

"They could have changed the charge in the previous trial to a category whatever they felt like, they could have run the trial but chose not to, they offered no evidence and the charge was dismissed," Mr Sellentin said.

Magistrate Damien Dwyer weighed in, informing Mr Sellentin that was over the unavailability of a witness and because the case had already been set down for "long enough" and the court was not "prepared to grant any further adjournments".

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Mr Dwyer added the additional charge had been discussed with Mr McRae's solicitor from the first case.

"That discussion was essentially forcing him to plead guilty to the charge in circumstances where they knew they weren't going to run the case," Mr Sellentin said.

"They then recharged him … the evidence is exactly the same as what they had for the previous trial.

"I submit that the prosecution was playing games in that they offered no evidence to sidestep the effect of a judicial decision."

Mr Dwyer reaffirmed it was because prosecution could not prove their case because a witness was unavailable, "not to sidestep any judicial decision".

Mr Sellentin pushed his client was facing the same charge with the only difference being the categorisation.

"It's unlawful possession of the weapon," he said.

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However Mr Dwyer rejected the submission finding it was a different and "more serious" charge and said prosecution was within "their rights" as long as Mr McRae was recharged within 12 months.

Mr Sellentin further argued a public interest angle "and having confidence in the proceedings that were dismissed".

But Mr Dwyer said public interest was one of the most important factors.

"I find there was no unfairness in the actions of the police service in this instance, I think it's in the public interest that anybody charged with having a short firearm in a public place (the matter) should be determined by the courts," Mr Dwyer said, refusing the stay application.

The hearing will proceed on Monday.

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