Sunday, 1 June 2014

NSW Police & coal seam gas miner Metgasco Limited's response to the Glenugie protest revisited - judgment transcript

Excerpt from Magistrate Heilpern’s October 2013 judgment in Police v Rankin; Police v Roberts [2013] NSWLC 25 which decided prosecutions were permanently stayed:

Collateral Purpose

82 The defence contend at paragraphs 15 to 21 of their submissions that the prosecution has been instituted for a collateral purpose. They submit that a question arises as to whether the prosecutions are being pursued for a political aim, given the high profile issue of CSG in the community. The defence further submit that the prosecution may be as a result of embarrassment by "Sydney" over the visiting specialist unit police and their failure to comply with LEPRA.

83 It is correct that the courts will not usually look behind the reason for a prosecutorial discretion. However, this is an exception to that situation. The applicants have 'fair and square' laid out their concerns relating to these matters in their submissions. Two solicitors have prepared lengthy affidavits replete with attachments to support this application. The response from the prosecution is to simply point out that there is no evidence beyond mere conjecture. To an extent that is true - there is no smoking gun that proves political interference or specialist squad intervention. However, nor have the police chosen to dispel these suggestions with any evidence, or any alternative scenario that does not involve collateral purpose. The informant has not filed any evidence to explain why the new charges have been laid, and had they, any cross-examination may have shed light on this issue. There is nothing in submissions which dispel the applicants' contentions. In particular, there is nothing from the informant to explain why his superiors determined to withdraw the charges, and he then instructed another prosecutor to run a different matter.

84 In my view, the burden on the applicant relating to a collateral purpose may be shown by inference. In this case I find myself asking "what could possibly be the reason for continuing on with such an 'innocuous' charge in these circumstances?" Whilst suspicion is not enough, what else is the court to conclude when the prosecution offers no other alternative to the issues raised by the applicants? Why else would the police risk a costs order against them in the original matters which were withdrawn (which could run into the many tens of thousands of dollars), drive a prosecutor up from Sydney to run the matters, arrange police witnesses to travel from Sydney all for an 'innocuous' minor traffic matter.

85 The defence is correct that the CSG issue is political, to say the least. The arrests in this case are just one set of many, and the defendants who have come before me are generally over 50 years, well educated with a fair smattering of farmers and professionals. It is in that context that the realistic suspicion of political interference arises.

86 My mind has wavered on this issue. There is suspicion, and there is a lack of any other rational purpose. However, I have formed the conclusion that I am not satisfied to the requisite degree that the prosecution in the fresh matters has been launched for a collateral purpose. Accordingly, I do not take into account the matters raised by the applicants on this issue.

Full transcript can be found here.

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