You are a criminal defence lawyer working at Great Defence Solicitors.
Your supervisor has given you the following instructions in relation to the firm’s new client,
Mr. Charles Finnigan, aged 25, who had just been released from Melbourne Police station
where he was detained in the cells overnight for stalking his ex-partner under s 21A of the
Crimes Act 1958.
He gives you the following instructions which came from the client:
(a) Charles was arrested at 12AM in the morning.
(b) Sergeant King told Charles that he went to Charles’ ex-partner’s house about 11PM
as a result of a neighbour’s call having heard yelling. Sergeant King was familiar
with their ‘domestics’ and even though Charles was not present, and the ex-partner
did not want to talk to police, he “knew” that Charles had been there. He said that is
why he arrested him.
(c) The police put him in the interviewing room at about 1AM. They gave him all the
usual cautions including his right to remain silent, a warning that what he does or
says may be used against him, his right to contact a lawyer and friend or relative etc.
(d) They then left him in the room for 2 hours and 30 mins with a cup of water before
commencing the interview.
(e) Sergeant King then began the video recording.
(f) As Sergeant King asked Charles a series of questions, the corroborator, Constable
Skinner, stood in the background looking Charles straight in the eye with a menacing
look for almost the entire time. Constable Skinner also switched between holding the
gun in his holster, and clipping and unclipping the holster during the interview
(g) Charles was not overly concerned about the Constable’s conduct because he did not
think he would be shot while being video recorded. However, he was nervous and
distracted by the conduct. Although he said ‘no comment’ to most questions, at one
question he answered ‘I barely spied on her, she was the one spying on me all the
time.’
(h) Sergeant King saw that Charles was intending to make a ‘no comment’ interview, so
he told Charles that he was going to end the recording. He said to Charles that they
could “have a friendly chat” instead so that he could “explain his side of the story.”
(i) During that chat, Charles admitted that he “just wanted to know what his ex-partner
was up to.” The friendly chat was recorded by Sergeant King secretly on his mobile
phone.
(j) Charles was told about the recording and asked if he wished to hear it and confirm
that is what he said. He declined.
(k) He was then requested to provide a sample of his fingerprint to the police, and he
denied this request. A police officer then grabbed his finger and forced a copy of his
fingerprint sample.
(l) He was then locked up in the cells again until early morning.
(m)Charles was released on bail on his own undertaking at 7AM.
(n) When he was released, he was charged with stalking as the fingerprint sample
matched the fingerprints on a window and the front door handle at his ex-partner’s
house. He was given a summons to appear at court in one month.
Your supervisor asks for your advice about the matter so that he can advise the client about
the law. He asks you to write him a memorandum about some questions he has, specifically:
Q2A. Whether the statements that Charles made
(I) during the interview and
(II) after the interview
are likely to be admissible against Charles?
Q2B. Whether the arrest was lawful?
Q2C. What options Charles has in relation to the charges (e.g., are these indictable or
summary, where will they be heard, what can he plead, what can happen at a hearing, can
he appeal?