Working together to protect our future
 
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Body-worn video (BWV) use by police across the nation is rising, and NT Police is leading the way. Unlike interstate, where individual police can choose whether or not they wish to use the cameras, in the Territory BWV has been rolled out for all operational members.

NT Police has created a BWV police practice and procedure document that all members should review. A specific training course has also been created, as well as a separate course on taking statements using BWV in domestic violence matters.

CHANGES TO LEGISLATION

Surveillance Devices Act:
In April 2017 there were changes made to the Surveillance Devices Act (NT) to permit use of BWV by police in certain circumstances.

Section 14A of the Act permits use if:
(a) the officer is acting in the execution of the officer's duty; and
(b) the use of BWV is overt; and
(c) the officer is in uniform or has provided evidence that they are a police officer to each party to the private activity or private conversation to be recorded.

In addition, Section 14 says, without limiting the ways in which the use of BWV may be overt, it can include when an officer informs the person to be recorded of the use of BWV. It is not a breach of the Act, nor is it an offence, if the use by the officer is inadvertent or unexpected. This gives some protection to our members.

Under section 51 any information obtained from BWV by an officer is local protected information and (pursuant to section 53) can only be used, communicated or published in certain situations, including the investigation of an offence or the making of a decision on whether or not to bring a relevant proceeding for an offence.

Importantly, this section states that local protected information obtained from BWV by an officer may also be used, communicated or published:

" in connection with the exercise of a law enforcement function by an officer; or
" in connection with education and training of officers; or
" for a purpose prescribed by regulation.

This raises some issues as to the ability of the Professional Standards Command and/or supervisors to use BWV in disciplinary matters or performance management.

Evidence Act:
The Evidence Act has also been amended for police BWV use.

Section 21(a) provides that a complainant in a domestic violence (DV) offence proceeding is to be considered a vulnerable witness. This amendment is intended to remove the need for a court to determine that a complainant is a vulnerable witness and to automatically permit new mechanisms for the use of BWV evidence as outlined in the new Part 3A of the Act.

Part 3A, and added sections 21G to 21R, provide that a compliant recorded statement may be played at the hearing of a DV charge. Essentially, it seems the recorded statement can be utilized as evidence-in-chief. The court can refuse to admit any or all parts of the evidence. The intent is to make it easier for complainants in DV offence proceedings to give evidence whilst reducing the need for them to relive their trauma.

Section 21 J outlines what is required in order for the statement to be compliant:
" It must be made as soon as is reasonably practicable after the events;
" It must be made with the complainants informed consent. The officer must inform the complainant the recorded statement may be used in evidence in a DV proceeding, they may be required to give further evidence and the complainant may refuse consent. The complainant must have their consent and age recorded.
" It must be made as a statutory declaration. The complainant must state the evidence is true and that they know it is an offence to make a false statutory declaration. Section 21K states if a defendant is legally represented, and a recorded statement has been made for a DV offence proceeding, the prosecution
must serve a copy on the legal representative as soon as possible after proceedings commence. The defendant is not to be given or take a copy of the statement.

Section 21L states if the defendant is unrepresented the prosecution must serve an audio copy of the statement as soon as reasonably practicable after proceedings have commenced, and allow the defendant to view the video footage on a day before the hearing of the charge or committal date.

Section 21N states the prosecution is not generally required to provide a transcript of the recorded statement to the defendant or their lawyer.

Section 21P prohibits editing or altering of the footage unless both parties agree. For example, the parties may agree the evidence is inadmissible or unfairly prejudicial. Section 21Q makes it an offence to publish a recorded statement without authority.

POLICIES, PROCEDURES AND PITFALLS

No amendments appear to have been made to the Evidence Act regarding BWV use outside domestic violence matters. In particular, there is nothing specific in the Act regarding taking statements using BWV. We raise this because the practice and procedure document refers to the use of BWV to take statements from victims generally, rather than purely in DV matters. We do note the practice and procedure document confirms that in these instances the recorded statement does not replace the need for a written statement.

It will be interesting to see how such statements (outside DV proceedings) will be relied upon and/or criticized in the criminal justice system. There is concern that our members lack protection because, whilst the practice and procedure is quite detailed, there does not appear to be a General Order regarding BWV use. Its use in disciplinary proceedings and performance management will undoubtedly be a relevant factor throughout the rollout and into the future.

Our interstate colleagues have, generally, embraced BWV, citing the protection it offers members from vexatious complaints, as well as assisting with the prosecution of offenders. Like all technology, however, its true impact will not be known until some time has passed with our members using it themselves on the frontline.