More cases affected by Victoria Police swearing-in bungle

A man accused of breaching his good behaviour bond has fronted court calling for his case to be dropped, arguing the officer who charged him was not sworn in.

A man accused of breaching his good behaviour bond has become the latest to argue in court the case against him should be thrown out because of the Victoria Police swearing-in bungle.

Scott Williams hired top barrister Dermot Dann QC to front Melbourne Magistrates’ Court on Monday to apply for his single charge of contravening release on an adjourned undertaking to be struck out.

Mr Dann argued Senior Constable Melissa Marcucci was not a sworn police officer and therefore did not have the power to charge his client at the time.

It comes after the Herald Sun last month revealed 1262 police officers, PSOs and police custody officers had been wrongly sworn in between 2014 and 2021 due to amendments to the Victoria Police Act made by the Napthine government.

The embarrassing error left the force scrambling to hold mass swearing-in sessions over several days, and legislation to backdate the affected police officers’ powers is expected to be introduced to parliament this week.

But prosecutor Dr Ian Freckelton QC argued a 14th century common law known as the “de facto officer doctrine”, which preserves the validity of the acts of a public official where there is later found to be a defect in their appointment, would apply.

“Senior Constable Marcucci, although she was the subject of an irregular appointment process, is a police officer by virtue of this common law doctrine,” Dr Freckelton said.

“She has been discharging her duties, just like a thousand of her colleagues, for literally years now.

“The proposition that she was not, or is not a police officer by reason of this anomaly is deeply troubling, and would erode the entire fabric of the operation of the criminal justice system over a period of years since the legislation came into effect.”

The Herald Sun last month revealed 1262 police officers, PSOs and police custody officers had been wrongly sworn in between 2014 and 2021. Picture: Sarah Matray

Mr Dann said the fact was Constable Marcucci was not a police officer under the Victoria Police Act when the contravention charge was filed.

“Was the charge validly laid and was the summons validly issued, the answer to that seems to be, clearly, no as well,” Mr Dann said.

He said the prosecution had not been able to cite one ruling where the de facto officers’ doctrine had been applied in Victoria.

In August 2019, Mr Williams, 42, made a promise to the court he would be of good behaviour for 12 months to avoid a conviction after being charged with unlawful assault and intentionally damaging property.

But when he allegedly failed to pay a $500 donation component to his bond, a warrant was issued for his arrest in March last year.

He was charged with contravening release on adjournment.

Magistrate Therese McCarthy reserved her decision.

The case would likely set a precedent and if Mr Williams is successful, could see a flurry of other applications to the court.

Some matters, including that of police detective Murray Gentner, who is accused of leaking photos and information about former AFL coach Dani Laidley, were thrown into disarray on the day the news broke of the administrative oversight last month.

But it was later revealed that none of the investigating officers in Mr Gentner’s case were linked to the saga.

The Herald Sun has since observed other hearings where defence lawyers have tried to use the blunder to get charges dropped against their clients.

In one case last week, the prosecution opposed such an application, with the magistrate adjourning for eight weeks to allow changes to the legislation to unfold.