31 August 2014

Police Powers, Recording in Public, The Right to Incriminate Oneself


"(Police officers) have no power whatever to arrest or detain a citizen for the purpose of questioning him or of  facilitating  their  investigations.  It  matters  not  at  all  whether  the  questioning  or  the  investigation  is  for  the  purpose of enabling them to ascertain whether he is the person guilty of a crime known to have been committed  or is for the purpose of enabling them to discover whether a crime has or has not been committed. If the police  do so act in purported exercise of such a power, their conduct is not only destructive of civil liberties but it is  unlawful."

Regina v Banner (1970) VR 240 at p 249 - the Full Bench of the Northern Territory Supreme Court

"It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police,  or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries."

Justice Stephen Kaye - Melbourne Supreme Court ruling - 25 November 2011

"There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details. Nor, is s.59 of the (Road Safety) Act a statutory source of such power."

Magistrate Duncan Reynolds - Melbourne - July 2013

NOTE: None of the above precedents have been overturned on appeal or in the High Court



- Section 7 - Prohibition on installation, use and maintenance of listening devices

(1) A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) To overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party

ANALYSIS of 1(a)  The person recording is a party to the conversation.
ANALYSIS of 1(b)  A conversation on the roadside between a person and a policeman is not a private conversation.

CONCLUSION:  A person video recording an encounter between himself and police is doing so legally.

(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listenin g device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii)  is  not  made  for  the  purpose  of  communicating  or  publishing  the  conversation,  or  a  report  of  the conversation, to persons who are not parties to the conversation.

ANALYSIS of 3  A conversation on the roadside between a person and a policeman is not a private conversation.
ANALYSIS of 3(b)(i)  A recording made to protect the lawful interests of the person recording is legal.
ANALYSIS of 3(b)(ii)  Such a conversation is not private, therefore can be published.

CONCLUSION:  A person recording an encounter between himself and police is doing so legally. That person is also legally entitled to publish the recording to the public, such as on Youtube or other websites.

News media do this every day, recording  people and events without requiring the consent of those being recorded. The media is not subject to any special dispensation by law to do this, therefore members of the public have the same rights to record their encounters with police.

Any policeman who tries to prevent a member of the public doing this is acting illegally and can and should be prosecuted.


The Australian Government Law Reform Commission states the following:

15.89  The  common  law  privilege  against  self-incrimination  entitles  a  person  to  refuse  to  answer  any question,  or  produce  any  document,  if  the  answer  or  the  production  would  tend  to  incriminate  that person.[123]  Although  broadly  referred  to  as  the  privilege  against  self-incrimination,  the  concept encompasses three distinct privileges: a privilege against self-incrimination in criminal matters; a privilege against self-exposure to  a civil or administrative penalty (including any monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil proceedings for damages); and a privilege against self-exposure to the forfeiture of an existing right (which is less commonly invoked).

There are many more references to an Australian citizen’s right to not incriminate himself or produce any document that may tend to incriminate him and this is where motorists should stand up for their rights in this regard.

ANALYSIS:  As  proven  by  the  precedents  set  by  various  judges,  common  law  supersedes  statutory  law. Therefore, whether there are statutory laws compelling a person to submit to providing anything that may tend to incriminate him, the fact remains that a person has the legal right to not provide any material, whether verbal or tangible, if the production of that material would tend to incriminate that person.

That material can be any or all of the following:
  Verbal statements
  Documents
  Data such as computer files
  Breath alcohol samples
  Blood alcohol samples
  DNA samples

CONCLUSION:  No person should ever succumb to any demand to produce anything that may tend to incriminate him, no matter what police or other officials say or threaten. Every citizen  has the common law
right to refuse to incriminate himself in any way.

Obviously any attempt to coerce or forcibly take any material from a person against his will that may tend  to  incriminate  him  should  not  only  make  that  material  completely  inadmissible as evidence in any prosecution, but will possibly render the person who has coercively or forcibly obtained that material to prosecution for violating a person’s common law rights.

Source supplied.

No comments: