The wording of an indictment against two Black Lives Matter protesters is so confusing it might as well have been written by a Martian, a Melbourne magistrate has heard.
Meriki Onus and Crystal McKinnon are accused of violating the Chief Health Officer’s COVID-19 guidelines by staging the protest in June 2020.
Police demanded to change the wording of the charge against them a year after the protest, but their lawyers successfully opposed it.
Magistrate Andrew McKenna found that the wording of the charge was not the only viable or even reasonable interpretation of it.
“He’s deficient in different ways,” he said Thursday.
Patrick Doyle SC had argued that the wording of the charge was mangled and inaccurate as it alleged the women breached a guideline or requirement by meeting 20 or more people with whom they lived.
He said the prosecution did not say who gave the instruction, only referred to the exemptions from the director of health.
Mr McKenna agreed the wording of the indictment had misinterpreted something and had been ‘gritty mangled’.
“These words…might as well be spoken by a Martian,” he said.
He suggested that if an accused selected pieces of the accusation, they might be able to form a collage to make sense of the accusation.
But he wondered if it was appropriate for a defendant to have to try the options, mix them up and come up with something that makes sense.
“Even intelligent, highly educated defendants would be very perplexed by this,” he said.
His experienced eye had to read it “over and over” to try to grasp its reasonable meaning, and that was not how a recipient of an accusation was forced to put up with it, he said.
Francesca Holmes, for Chief Commissioner, said it was regrettable that the prosecution used the words “with which they reside” and acknowledged that the prosecution involved “terrible grammar, terrible drafting”.
But she argued the original charge correctly disclosed the nature of the offense they allegedly committed.
The amendment was simply intended to include the precise direction that had been breached, she said.
A later request to also change the dates – from the date of the protest to a period before the protest – was also rejected.
Mr Doyle said a new application to have the charges dropped would be filed.
The women have already fought to have the charge dropped, after their lawyers were told in June this year that the case would be dropped because the charges were “fatally flawed”.
Ms Holmes said prosecutors should consider whether the charges would be dropped, but said no decision could be made on Thursday.
The case will return to court next year.
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