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Last minute legal manoeuvres: WA delay trial of Falconer case

1 April 2022

12:00 PM

1 April 2022

12:00 PM

At an urgent hearing late on March 28, the evening before Senior Constable Ben Falconer’s challenge to the WA Police vaccine mandate was due to start, Ken Pettit SC, counsel for the state’s Chief Health Officer, Andy Robertson, and the State of WA, tried to force the trial on, despite the surprise last-minute withdrawal of Dr Robertson as a witness. 

At the urgent hearing, Senior Constable Ben Falconer’s counsel, Shane Prince SC, argued that Dr Robertson’s withdrawal had deprived Senior Constable Falconer of the opportunity to cross-examine Dr Robertson on an affidavit filed in early March, and so the trial would not be fair if it proceeded in the way proposed by Mr Pettit SC. 

In a major breakthrough at a hearing the following day (when the three-day trial was scheduled to start), Supreme Court Justice Jeremy Allanson accepted Mr Prince SC’s submissions and adjourned the trial. Justice Allanson said in his oral reasons, ‘I’m not satisfied that the trial should proceed in the manner proposed by [the Chief Health Officer and the State of WA]. I’m not satisfied that it would be fair and that it would be seen to be fair.’

While the case is adjourned, the parties have been directed to confer about the calling of expert evidence at the trial. There will be a directions hearing on April 13, at which time Justice Allanson will decide whether he will allow expert evidence at the trial, and to set a new trial date. Justice Allanson advised the parties that he will not be available until July to hear the case, although it is possible another judge could be allocated. 

This outcome leaves open the possibility that Senior Constable Falconer will be able to lead evidence in the case from Professor Nikolai Petrovsky of Flinders University. Professor Petrovsky’s evidence calls into question the scientific credibility of the WA government’s decision in October of last year to impose vaccination mandates on a large proportion of WA’s workforce.

As mentioned in my most recent piece, Justice Allanson had previously ruled that no expert evidence would be allowed, but has now indicated that he may be willing to reverse his position, due to the surprise withdrawal of the Chief Health Officer as a witness in the case on March 25.

Professor Petrovsky is an internationally-acknowledged vaccine expert, and gave expert evidence in the recent case in the High Court of New Zealand, which struck down the New Zealand government’s vaccine mandates applying to the police and defence forces.

Dr Rocco Loiacono is a Senior Lecturer at Curtin University Law School. The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.


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