It would appear that our local police are insistent on being filmed! First it was ‘Beach Cops’ the popular T.V Series, but from now, local police will be able to contemporaneously record their interactions with the public through the use of body worn camera’s. This can be done in a public place or in private.
The use of body worn cameras by police is authorised by section 50A of the Surveillance Devices Act 2007 (NSW). The section states that police officers can use the devices:
- If they are acting in the execution of their duty; and
- If the use of the camera is overt e.g. if they inform the person who is to be recorded, and
- In the event they are recording a private conversation, when they are in uniform or have provided evidence to other people in the conversation that they are a police officer.
In addition, and despite the requirement of being “overt”, the section also states that recordings which are “inadvertent or unexpected,” or ‘incidental’ to the use of body worn video by the police officer will still be allowed under the law.,
It is important to know that police have publicly stated that the cameras will be ‘clearly visible’ and that the officers will advise the people that they are talking to that their conversation is being recorded. Of interest, this will apparently take place ‘where practicable.’
So why don’t the police just record everything?
Interestingly, the decision to use the body worn camera is discretionary. This means that police decide whether (and when) to turn the recorder on. A decision by the officer not to record an interaction might even be in a situation where a member of the public insists or requests that a particular encounter be filmed.
I am told that should the officer decide to film something, then there will be a minute of back capture footage from the time the officer starts recording. Nevertheless, if an officer chooses or forgets to film an encounter, then evidence of that interaction will forever be lost.
What happens to the footage?
As the footage is classified as ‘protected information,’ it essentially means that the footage is downloaded and stored securely without being copied, used or disclosed for non-official purposes (e.g. evidence in court, investigations, training or as otherwise allowed by the law).
So what are the main concerns?
A main concern is that it is the officer who decides when and where to film. In my view, this is fraught with danger as police could decide not to film an encounter simply because it does not benefit them. One would hope that Police would not deliberately provoke a member of the public and then turn the camera on to film the end of their interaction with them.
In my lengthy history of observing police, they sometimes (depending on their level of experience) make an early determination as to how they are going to deal with a situation and often get ‘tunnel vision.’ This means that they lose focus on other things going on around them, including the need to record an encounter should that be available to them.
Of course, another preliminary concern is that the police officer will not download any footage as required.
So what do senior police think about all of this?
Recently in a media release, Northern Beaches Superintendent Dave Darcy commented that the crystal-clear video was more likely to enhance pleas of guilty to offences.
The above being said, Police have strict rules to abide by when exercising their powers. Those powers are found in The Law Enforcement (Powers and Responsibilities) Act. If Police don’t comply with their own rules, then their actions may have adverse outcomes for themselves, particularly if it has been filmed or recorded and able to be viewed.
Time will tell, but my preliminary view is that it’s optimistic for the local Police to think that footage collected from body worn camera’s will only be a good thing for them. It is quite remarkable how often police get their powers wrong.
What if I am charged with an offence against the Police?
If you are charged with an offence, or have questions about body worn camera’s, get in touch with your criminal lawyers at McKenzie McLoughlin Law. As former prosecutors, let our detailed knowledge of how the police operate be your greatest advantage.
By Josh McKenzie, Director at McKenzie McLoughlin Criminal Lawyers
In recent times, tragically there have been a number of deaths caused by the consumption of illegal drugs at music and dance festivals.
In breaking news today, it was publicised that the N.S.W Government is now planning on creating new laws to hold suppliers responsible for any deaths that follow the supply of illegal drugs.
On review of what has been published today, it would appear by what has been said to the press that it is expected that drug dealers who are found to be responsible for supplying drugs that lead to the death of a person, could face up to 25 years in prison.
Of importance, The Drug Misuse and Trafficking Act defines ‘supply’ as:
“sell and distribute, and also includes agreeing to supply or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering, or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”
According to the State Premier Gladys Berejiklian, the government will strengthen laws to target drug suppliers by introducing a new offence that would hold them responsible for any deaths they cause as well as trialling on-the-spot fines for drug possession.
“The Attorney-General and the police force will be working together … we envisage it will be anywhere between grievous bodily harm, which is 10 years [maximum in prison], and manslaughter, which is 25 years [maximum in prison], so somewhere in that range,” Ms Berejiklian said.
In respect of these proposed new laws and the already existing ones regarding drug supply, it is imperative that if you are charged with a drug offence you seek out experienced criminal lawyers for representation. At McKenzie McLoughlin Law, James and I are criminal lawyers who are former prosecutors for the Police and the DPP. I am also a former criminal investigator with the detectives. To have experienced legal representation that knows how the police go about their business in investigating and prosecuting matters is a tremendous advantage to any client. Call us for a free consultation.