The prosecution of a Geelong man who was shot in his own backyard and accused of assaulting police has collapsed after serious discrepancies emerged in the official case.

Prosecutor Glenn Mohammed told the County Court on Wednesday Andrew Wilczewski would not have to stand trial, ending a 2½-year legal battle where both police and the defendant were claiming to have acted in self-defence.

Andrew Wilczewski being taken away by ambulance after being shot by police.
Andrew Wilczewski being taken away by ambulance after being shot by police.Credit:Nine

Wilczewski was shot in the leg after allegedly threatening probationary Constable Savannah Smith with a shovel during a call-out to a noise complaint at his Waurn Ponds property late one night in August 2020.

Wednesday’s administrative hearing was not told why the case was being discontinued by prosecutors only months after Wilczewski, 48, had been committed to stand trial by a magistrate. Wilczewski had his seven charges dropped.

“On the basis of the evidence, a decision was made that there were no reasonable prospects of conviction in this matter,” an Office of Public Prosecutions (OPP) spokesman told The Age.

The move comes after serious weaknesses emerged in the police investigation and the prosecution case during the committal in Geelong Magistrates’ Court in December.

In a sworn statement and her evidence from the witness box, Smith justified the shooting because she felt in fear for her life from Wilczewski, whom she claimed advanced on her over 30 seconds despite Smith clearly identifying herself as a police officer and repeatedly ordering him to stop.

Victoria Police’s Armed Crime Squad and Professional Standards Command ruled the shooting justified.

Wilczewski, who was shot in the leg, faced seven charges including threatening and assaulting an emergency worker, assault, assault with a weapon and recklessly engaging in conduct that placed a person in danger of death or serious injury.

But during cross-examination in the committal, defence barrister Adam Chernok argued key parts of Smith’s evidence were undermined by footage from the body-worn camera carried by her partner, Leading Senior Constable Melinda Wylie.

Audio on the footage, first published by The Age, showed Smith had not identified herself as a police officer despite jumping a locked fence on the property and repeatedly banging on the windows of the house.

The timestamp on the footage shows Smith opened fire less than five seconds – not 30 to 35 seconds as the officer said – after she spotted Wilczewski coming towards her and first shouted out to him. Smith then announced “police” and shouted “get back” three times before opening fire.

In her evidence, Smith said she would have been clearly identifiable as a police officer to Wilczewski, as she was wearing a high-vis fluorescent reflective vest and police kit while standing near lights on the side of the house.

The camera footage showed the backyard was in darkness during the incident.

At the committal hearing in December, Chernok told the court Smith had “serious reliability and credibility issues” and a “Dirty Harry-type mentality”. The evidence showed Wilczewski did not realise Smith was a police officer and was acting in self-defence, he said.

It also emerged during the evidence of other witnesses that Victoria Police failed to do forensic ballistics testing at the scene or conduct any interviews with potential witnesses to the shooting in the neighbourhood.

Wilczewski was committed to stand trial by the magistrate, who found that the consideration of whether he acted reasonably or not was a matter for the jury.

Chernok made written submissions to the County Court urging the OPP call off the prosecution before the next hearing, which was to set a trial date.

“It is submitted that this prosecution is foredoomed to failure. Key elements of each offence charged are not made out. There is no way that the Crown will be able to prove, beyond reasonable doubt, that the accused did not act in self-defence,” he said.

“The credibility and reliability of [Constable] Smith is a major issue in the case. During the committal, she gave evidence which was clearly recent invention. She minimised particular matters or exaggerated them in order to present herself in a more favourable light.”

The OPP, while not commenting on the specifics of the case, discontinued the prosecution because “there was no reasonable prospects of conviction”, its spokesman said.

Chernok said his client was “absolutely thrilled and relieved at the result”.

“He won’t be making any comment at this stage given his intention to pursue civil action against Victoria Police.”

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