It is a Friday night in August 2019 and Jock and Ben are at the footy. They have been drinking a lot and behaving obnoxiously. During the game, they have been exchanging unpleasantries and then arguing with a supporter from the opposite team, Ravi. At one stage the exchange becomes loud and acrimonious and it is interrupted by security. They go on watching the game.jjj

IJock's and Ben's team loses. They make their way out of the stadium at about 11.00 pm. A few streets away, they bump into the opposition supporter Ravi from earlier and they are clearly looking for an argument. Things escalate and their verbal exchanges turn into a physical assault. Jock and Ben have little difficulty overwhelming Ravi.They throw him to the ground and kick and punch him.After laying a few blows himself, Ben films some of the attack on his mobile phone. Ravi's phone also falls out of his pocket to the ground during the scuffle and Ben picks it up and pockets it.

A couple of people nearby, Leo and Max, hear the scuffle and rush out to see what is going on. As they approach calling out 'stop', Ben runs away. By that stage, Jock is no longer beating Ravi but is standing over him on the ground screaming abuse at him. He does not notice the others approach, and Leo and Max are able to incapacitate Jock and call police to report the attack.

Ten minutes later, Senior Constable Bozo and Constable Sapper arrive on the scene. Jock is still held by Max and Leo. Senior Constable Bozo says: 'We'll take it from here, fellows'.They immediately arrest Jock, whose hands are covered in blood.Leo and Max tell police what they saw and that there was someone else involved who ran away. Ravi tells police that the two guys had been hassling him during the game and stole his phone during the attack. Ravi is taken to hospital with a broken nose, a few broken ribs and some bruising.

Senior Constable Bozo tells Jock: 'Alright, you are coming with us to the station. You are in a fair bit of trouble mate' and Jock responds: 'Actually. I know my rights. I want to ring a lawyer'. Senior Constable Bozo responds: 'Just wait until we are at the station' and assists Jock into the police car.On the way to the station, Jock starts whining and blurts out: 'This isn't fair. That guy was asking for it. Just ask Ben. He was at us the whole game.'At that point, Constable Sapper turns on the recording function on his phone and asks Jock to explain what Ravi did, who is Ben and where he is. Jock just says: 'he knows what he did' and refuses to say anymore.

It is now just after 12.00 am and the three arrive at the police station. Jock is placed in a holding cell. After some inquiries, police find out that Jock lives at 30 Cedar Street, Northcote and that he has a flatmate called Ben.

At 1 am, Jock is brought to the interview room. Senior Constable Bozo complies with s 464A(3) of theCrimes Act1958(Vic). He also tells Jock that he can communicate with a friend, relative or lawyer pursuant to 464C(1) of theCrimes Act1958 (Vic). Jock responds 'Whatever. What good would that do now...Actually, can I call my flatmate?' Police refuse to allow Jock to call his flatmate.Police proceed with the interview and Jock confesses to beating Ravi up but says nothing about anyone else's involvement.

Senior Constable Bozo signs a sworn affidavit and applies for a search warrant for the premises at 30 Cedar street, Northcote to search for any item connected with the assault. A search warrant is issued for that purpose by the Magistrates' Court under s 465 of theCrimes Act 1958(Vic).

At 7 am, Senior Constable Bozo and Constable Sapper knock on Ben's door. They introduce themselves and explain that they are investigating a serious assault that took place the night before after the footy game. They give Ben an execution copy of the search warrant.

The police search Jock and Ben's house and find two phones on the dining table. Constable Sapper asks Ben: 'Are they both yours?'. Ben answers: 'Maybe'. Constable Sapper then asks Ben: 'We need you to give us the password for those phones mate.' Ben refuses. The police seize the phones but do not find any other incriminating evidence in the house.

On the way out, they see that it is bin day and the bins are lined up on the street. Senior Constable Bozo takes a peek into the bins at 30 Cedar Street and the neighbour's bins, which are next to one another. He finds a t-shirt in one of the bins with what looks like blood on it. Ben yells: 'Oy, this is not my bin, it's the neighbour's'. Senior Constable Bozo decides to seize the t-shirt.

It's now 8 am, and Senior Constable Bozo tells Ben he is under arrest and takes him to the station. Ben is cautioned and informed of his communications rights. Ben is placed in a holding room and permitted to ring a solicitor and speak to him, which he does.

In the meantime, police arrange for the seized t-shirt to be taken to the Victoria Police Forensic Science Department for examination.

At 11 am, Senior Constable Bozo and Constable Sapper proceed with a formal recorded interview and ask Ben whether the t-shirt is his. Ben says it isn't and that he has nothing else to say. He then answers 'No comment' to all further questions put to him.

At the conclusion of the interview, Senior Constable Bozo asks Ben if he would consent to a buccal swab for DNA analysis. Ben replies that he does not consent. The interview is completed at 11.20 am and Ben is returned to the holding cell.

Ben's DNA profile is, as it turns out, already on the police DNA database as a result of a forensic procedure taken 18 months ago in the course of an investigation for a separate assault. No charges were laid against Ben at the time or since in relation to that separate incident.

By 2 pm, police have managed to ascertain that the phone discovered in Ben's home belonged to Ravi. Jock and Ben are both charged with intentionally causing serious injury under s 16 of theCrimes Act 1958(Vic) and theft under s 74 of theCrimes Act 1958(Vic).

Both Ben and Jock are remanded in custody.

On the following Monday, the Forensic Services Department of Victoria Police ring Senior Constable Bozo and advise him that DNA testing of the blood on the t-shirt seized from the bin is not a match for either Ravi's DNA or Ben's DNA. That information is provided to Ben's lawyer.

Ben makes a bail application before the Magistrates' Court later that day. He is 28 years old and intends to vigorously contest the charges. He has two prior convictions for theft and assault dating back to when he was 18 years old. His parents do not have much money but are able to come up with $10,000 cash as surety. His uncle is prepared to say that he should be able to give Ben some casual labouring work with his building company if he is released on bail. Ben has a diagnosis of diabetes, which is well managed with medication. There is quite a backlog of trials and Ben's trial won't be listed until at least September 2021.

Was Jock's confession at 1 am lawfully obtained?