The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 185 proximity to the client. The Law Institute Journal gives the following advice: In acting as solicitor for any person in de facto police custody, always: 1 Be courteous and remain calm and detached. The proper observance of your client’s rights is your task, and not to ‘score off’ the police. 2 Make contact with the police officer directly concerned (the officer who takes the client to the police station). They will be the informant if a charge is laid. They make the decisions. It is ‘their case’. 3 If the police officer concerned denies access, tell them you wish to discuss the matter with their superior or the Duty Inspector. If they ignore that request or say that ‘they are not available’, contact the Duty Inspector at police headquarters immediately. Tell them the circumstances and lodge a formal complaint. Request the Duty Inspector to immediately order the police officer concerned to comply with the requirements of police standing orders. 4 The police officer will rarely acknowledge, before any charge is laid, that there has been ‘an arrest’. The person concerned will not be allowed to leave the police station. To formally prove ‘a detention’ it may be wise to try and get an acknowledgement from the police: a that the person is in the police station; and b that the person is not permitted to leave. 5 Remember that what occurs may be put in evidence in later proceedings for the issue of a writ of habeas corpus [the process of seeking a court order that the person be delivered from illegal confinement] and you should therefore make accurate notes, if not at the time, as soon as possible after the occurrence. (As to a writ of habeas corpus , see Supreme Court (General Civil Procedure) Rules 2015 (Vic), order 57.) Evidence Fingerprints The law set out here in relation to fingerprints is that which applies for offences against state laws. The situation in relation to Commonwealth offences is similar, but not identical. The differences will be outlined where relevant. The term ‘fingerprints’ includes finger, palm, toe and sole prints. Fingerprints can be taken using a finger scan device as well as the traditional ink print method. The powers of police to take fingerprints from a suspect depend, in part, on the suspect’s age. The major difference is between people aged 15 years and over and those from 10 to 14 years of age. Fingerprints cannot be taken from a child less than 10 years old. People aged 15 and over Police can use reasonable force to fingerprint a person aged 15 or over who has been charged with, or is reasonably suspected of having committed, an indictable or specified summary offence. The use of reasonable force must be authorised by the officer in charge of the police station, or by a sergeant. Taking fingerprints is a significant intrusion on the right against self-incrimination and the requirements of section 464K of the Crimes Act (Vic) must be complied with (see Watkins v Victoria [2010] VSCA 138). Before taking a suspect’s fingerprints, the police officer who is intending to fingerprint the suspect must provide them with the following information: • the purpose for which the fingerprints are required; • the offence that they believe the person has committed; • that the prints may be used in evidence in court; • that if the person refuses to give their prints, police may use reasonable force to obtain them; and • that if no charge is laid with six months, or if the person is found not guilty of charges that are laid, the prints will be destroyed. The giving of this information must be recorded (audio or audiovisual) and a copy provided to the suspect, or it must be recorded in writing and signed by the suspect. Young people aged 15, 16 or 17: Special requirement Before a young person aged 15, 16 or 17 can be finger­ printed, a parent or guardian – or, if neither of these is available, an independent person (see ‘Role of the independent person’, below) – must be present both when the request for the prints is made and when the prints are taken. Where reasonable force is to be used in the taking of fingerprints from a 15-, 16- or 17-year- old, the actual taking of the prints must be audiovisually recorded, if practicable, or audio recorded.