Assessment item 1 – Client communication – settlement and litigation options
Your client Xavier Mendez is charged with committing the following offences related to the one incident on 24 December 2020:
Charge 1: Improper use of a motor vehicle, contrary to s 5B of the Road Transport (Safety and Transport Management) Act 1999 (ACT) (the Road Transport Act)
Facts: On 24 December 2020, at about 10.00 pm, police responded to reports of a car doing burnouts in Weetangera. Two police officers in an unmarked police car observed Xavier driving the Mazda 2 on Shumack Street doing tight turns across the width of the street leading to a loss of traction of two wheels.
Charge 2: Failing to stop, contrary to s 5C of the Road Transport Act
Facts: Xavier stopped the Mazda 2 near the unmarked police car. One police officer, S/C Murchison, got out of the police car and shouted, “Police. Stop your car and get out.” Xavier swore and drove the Mazda 2 forward.
Charge 3: Dangerous driving, contrary to s 7(1) of the Road Transport Act
Facts: Just before Xavier drove forward, S/C Murchison reached through the open driver’s side window of the Mazda 2 to grab the ignition key and stop the car. S/C Murchison was very close to the Mazda and at risk of serious injury.
Charge 4: Damaging property, contrary to s 116(3) of the Crimes Act 1900 (ACT) (the Crimes Act)
Facts: When Xavier drove forward, the Mazda 2 hit the back of the police vehicle causing some superficial damage. He then accelerated forward a second time, hitting the police vehicle again.
At that point, Xavier was arrested. A blood alcohol concentration test administered at the scene showed that Xavier was not affected by alcohol. Unconditional bail was granted.
Information from your client:
In an initial interview, Xavier tells you that in relation to charge 1, he admits to doing burnouts. In relation to charge 2, the failure to stop, he says that he saw that S/C Murchison was in a police uniform and panicked.
Xavier is prepared to plead guilty to charges 1 and 2.
For charge 3, Xavier says that S/C Murchison did try to grab the ignition key. However, Xavier says that there was no real danger to S/C Murchison because the car only went back and forth a short distance.
For charge 4, Xavier says that in his panic he did hit the police vehicle twice. Xavier is not sure that the hits to the police vehicle caused any damage.
In relation to charges 3 and 4, Xavier is unsure whether to plead guilty or not guilty.
Xavier says that he is 22 years of age, has held a driver’s licence for four years and has no previous traffic or criminal matters.
Charges 1-4 are summary offences.
You have just completed a brief preliminary conference with Mr Mendez and learned the above. The matter is back before the Magistrate in 21 days when Xavier has been told he needs to enter a plea of guilty or not guilty.
Prepare a letter of advice to Mr Mendez in relation to his criminal law matter.
Details of the charge(s) – section, penalty, elements of the offence(s)
Possible defences to the charge(s) or evidentiary issues for the prosecution
Further evidence from the client to help prepare the case
Options for the client
Prospects of each of these options
Strategic advice for the conduct of the matter
Any limitations on your advice, or further information you might need from the client
Remember, we are interested in your clear explanation of the law to your client. You should reference correct legislation and procedure where possible. However, your marker is concerned most with how you communicate with your client.
Do not forget that in this course we are concerned with your role as an advocate, as a strong and clear communicator and as a confident strategist. Keep your role in mind as you prepare this advice.
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