The legal issues that can be mentioned in the case of Desdemona and Vince include the aspects of the whole procedure of arrest as well as the process of questioning. Assuming that the charges on which Desdemona was known, which is led to believe by the facts that Vince told the police, it can be stated that the initial procedure of defendant attendance to answer the charges requires summons.
The cases in which a warrant of arrest, according to sec. 28 of Magistrates’ Court Act 1989, should be issued include, in addition to the second instance of offense, the assurance that there is a probability that the defendant will not answer a summons, the defendant’s escape, or probability to escape, or a good cause. In that regard, it can be seen that in the present case this not the issue, where, first of all, it was the first instance of such charges, and secondly, there were no reasons to believe that the defendant will likely escape or there were an act or a good cause for an arrest warrant.
If the procedure of taking Desdemona to the police station was considered as an arrest with a warrant, assuming that the Constable and Senior Constable did have reasons to believe that summons was not enough, then a copy of the arrest warrant issued by a registrar or a magistrate should have been used, according to sect. 57 of Magistrates’ Court Act 1989.
Desdemona was obliged to go to with the police only if she was under arrest, and considering the phrase “she had to accompany them immediately”, which was mentioned in the case, it can be assumed that it was an arrest. Additionally, if an argument arose on whether Desdemona willingly or not entered into the police car, it should be stated that in such a case she can be considered to be in custody. Being held in custody implies several requirements that should be fulfilled. Such requirements, according to sect. 464A of Crimes Act 1958 include the following:
- Before questioning, the officials should have told Desdemona that she does not have to say anything, as anything said might be used against her in the court.
- Inform Desdemona of the circumstances of the offense she is charged with
- Implementing any of the three options, which are unconditional release, release on bail, bringing before a bail justice, or Magistrates Court in a reasonable time.
- According to Crimes Act 1958 – sect. 464C, Desdemona should have been informed and given the right to communicate to relatives, friends, or legal practitioners. There were no reasonable grounds that could be fitted into the category that allows ignoring such condition, i.e. the communication would result in an escape, the questioning is urgent. The last factor contradicts the seven hours time period, during which Desdemona was held in the interview room, and thus confirms that the questioning was not urgent.
It should be mentioned that although the reasonable time was not clearly defined, it can be stated that any of the measures used to assess such terms are surpassed by the time Desdemona spent in the interview room, seven hours.
The questioning procedure itself contains many actions that violate the SECT 464H (Recording of confessions and admissions) of Crimes Act 1958. The conditions that make the recording of confessions inadmissible in the case of Desdemona include the fact that the questioning was not recorded using audio recording or audiovisual recording, despite their availability in the interview room. Taking into consideration that the requirements of confessions and admissions apply to summary offenses as well, it can be stated that these admissions and confessions of Desdemona are inadmissible in court.
It can be concluded that considering the aforementioned legal issues from the police conduct, many violations occurred during the procedure.
Unlawfully Obtained Evidence
As stated earlier, the admissibility of the evidence includes several requirements. The evidence, in this case, includes the admissions made in the interview room and her answer to the question in the police car in which she said “He deserved it”. In both cases, the evidence was obtained unlawfully, where in terms of questioning, the admissions were not recorded, and in the car neither Desdemona was informed of her rights, nor did the police record the admissions to be able to show that they were obtained voluntarily.
Accordingly, the conditions in which the inadmissible admissions or confessions should be considered might be considered admissible, according to SECT 464H (2) of Crimes Act 1958, include the exceptionality of the circumstances, and their justification for such way to receive the evidence. In neither case, the circumstances of the admissions were exceptional nor did they justify the way they were received.
Additionally, the consequences include the exclusion of this evidence in court. Such exclusion can be assessed during the committal proceedings, where the evidence will be determined whether they are sufficient for Desdemona to go to trial. Although the results of the proceedings will not bind the prosecution, it will most likely lead to withdrawing the case, if there were no other evidence supporting the conviction. (Magistrates’ Court Act 1989 – SCHEDULE 5)
Time for filing Charges
The time of detention after which the person is unconditionally released, released on bail, or brought to the magistrates’ court with charges is denoted as reasonable. In that regard, the time can be established through several considerations that should be addressed such as the complexity of the offense, the time required to bring the person before a bail justice or the Magistrates’ Court, the time needed for the investigation to collect the material, the time for transportation, time for the interview, other people questioned, and others. It can be seen that the time of such investigation should correspond to the offenses with which the defendant is charged and the nature of the case. It can be assumed that in the case of Desdemona, such period should not surpass the time established for federal offenses, i.e. 4 hours.
Magistrates’ Court
The main jurisdiction of the Magistrates’ Court is summary offenses and indictable offenses triable summarily. The advantages might include the fact that the court is less formal than the Supreme and the county Court, no jury trial, and the maximum cumulative sentence is limited to 5 years. However, the main advantage, specifically in Desdemona’s case is the fact that Magistrates’ courts conduct committal proceedings.
For Desdemona’s case, considering the inadmissibility of the evidence collected, i.e. her admission during questioning, the committal proceedings might determine that the charges should be withdrawn without a trial, due to insufficient evidence, or specifically in Desdemona’s case the unlawful method of their collection. The SCHEDULE 5 of Magistrates’ Court Act 1989 specifies the conditions and the rules applicable to committal proceedings.
Entitled for Prosecution
On the state level, the political responsibility for prosecution is entitled to the following official: Attorney General, Solicitor General, Office of Public Prosecutions, i.e. Brief Crown prosecutors, Associate Crown Prosecutors, Solicitor for Public Prosecutions, and others. In summary offenses, the prosecution is mostly conducted by the police, and accordingly, as the offenses with which Desdemona is charged are either summary offenses or indictable offenses triable summarily, it is most likely that the prosecution will be conducted by the police. The matter will be heard in the Magistrates’ Court, where the police will be acting as private citizens, not as crown representatives.
Legal Representation
Generally speaking, Desdemona as everyone else has the right to a legal representation. Nevertheless, such representation is bound with certain conditions and rules. The period of questioning and investigation includes the defendant’s right to be informed about such right, as well as the right to communicate with the legal practitioner of his/her choice. In terms of trials, the defendant has the right to a legal representation, which nevertheless, does not imply the provision of such representation at public expense, or adjournment or stay of trial, if the defendant was refused legal assistance.
For the court to order Victoria Legal Aid to provide legal assistance to Desdemona, in case she is unable to afford the full cost of private lawyers, in addition to the inability to afford the court should question the possibility of her receiving a fair trial without legal representation. According to SECT 360A (2) of Crimes Act 1958, the court might even adjourn the trial until assistance is provided. Considering the issue of unlawful collection of evidence in the case of Desdemona, it can be assumed that such an order will be issued by the court for legal representation by Victoria Legal Aid.
Whether Desdemona can afford a legal representation or not, she certainly has the right to do so, and if it is proven that she cannot afford a private legal representation, the doubt of fair trial might lead to the provision of legal representation in public expense.
Bail
Granting bail can be implied in three instances, i.e. pre-trial, as one of the three options after being held in custody, with the trial in effect, and the case of an appeal. Because Desdemona is currently in a pre-trial state, the first option can be considered. The general presumption is granting bail for all trials, and as Desdemona’s case does not fall into the only exception, i.e. crimes punishable by death, it can be stated that it is likely that bail would be granted.
The main document outlining the conditions and the rules for granting bail is the Bail Act 1977. According to SECT 4 of the Act, any person should be granted bail being held in custody. The exceptions of offenses punishable by death, drug, are not applicable in this case, as well as the risk of the defendant failing to surrender, committing the offense while on bail, or endangering the public. These conditions can be assessed with the consideration of the offenses committed by Desdemona, where the most serious one can be considered the threat to injure.
The conditions of release on bail should correspond to the nature of the offense, where the sequence of the conditions going from the release without sureties and without deposit of money or security to appear as the less burdensome condition, to the release with a deposit of money or other security of stated value and a surety or sureties of stated value, being the most burdensome. Considering the offense it can be assumed that the most suitable condition would be the release with a deposit of money or security of stated value. The determination of whether Desdemona should be released on bail is the function of Bail Justices, appointed by the Attorney General. Accordingly, it should be stated that in case of bail refusal, according to SECT 18 of Bail Act 1977, the defendant might challenge such decision, by taking the application to the Magistrates’ Court, or the court to which the defendant would be required to surrender. In the case of Desdemona, in both cases, it is the Magistrates’ Court. In case the appeal failed to prove the conditions for granting bail, the decision can be reviewed, if Desdemona was not fairly represented in the court or new facts occurred.