Use of body worn video by NSW Police
Body worn video
How police use it and what you need to know
Use of body worn video by NSW Police
Since 2014, NSW Police have been using body worn video (BWV) to assist them in capturing evidence at the scene of a matter. Police have discretion over when they use the cameras and, to a certain extent, when they tell you they are recording. What this means is that in some cases, the recording of exculpatory evidence (that is, evidence that tends to prove a person did not commit a crime) may not be recorded.
Body worn video
Body worn video is taken from a small, portable camera worn by police officers on the chest of their uniform that is used to make audio and visual recordings.
The cameras were introduced with the intention of supporting a range of general policing purposes including:
Gathering and presenting objective evidence
Lowering the incidence and escalation of violence
Increasing police visibility in the community, and
Encouraging cooperative interactions between police and community members.
Body worn video can have its uses, both to police and to defence. But, concerns remain over the discretion police officers have in deciding when to use the cameras and whether they must announce its use to the people they are dealing with.
What is the law in NSW governing body worn video?
In NSW, the use of BWV is regulated by the Surveillance Devices Act 2007.
Section 50A(1) of this Act sets out that police may use the video if:
they are acting in the execution of their duty, and
the use of the video is overt, that is, the person knows that they are being recorded, and
in instances where a private conversation is being recorded, the police officer is in uniform or provides evidence that they are a police officer to each party to the conversation.
Are Police required to tell me they are recording?
There is no defined position as to what amounts to “overt” use of the camera. The legislation provides an example of a police officer informing a person orally that the camera is turned on. However, it is clear from the legislation that it is not limited to this one example. Potentially, the mere fact that it is visible on the officer’s person might amount to “overt” use.
If a police officer turns on the camera inadvertently or unexpectedly, the footage may still be used.
NSW Police have Standard Operating Procedures (SOP) which serve as a guideline for the use of body worn video. They set out:
“Members of the public will be advised they are being recorded if it is practicable to do so before or at the time of activating the recording. If it is not practicable to do so before or at the that time, as soon as is reasonably practicable after activating the recording.”
This means that a person may say or do something which is being recorded prior to their knowledge of the recording and this may have a big impact on future proceedings.
When can body worn video be used?
There are no circumstances where it is mandatory for Police to use a body worn video.
While the SOP offers some guidance on when the use of video may not be appropriate, the decision to activate the video is ultimately left to the discretion of the officer.
Police officers will often activate their body worn video to capture evidence or something of relevance or when they would normally use their official notebook to record information. For instance:
Vehicle stops e.g when a car is pulled over by highway patrol
When they conduct a record of interview with a person relevant to a matter
To record a Domestic Violence Evidence in Chief (DVEC), or
Licensed premises (business) inspections and patrols.
Circumstances where body worn video should not be used, according to the SOPs include:
To record things that are not related to the lawful execution of police duties
To covertly record material
During the execution of a search warrant prior to or during forced entry.
How is the footage from body worn video used in criminal matters?
The footage produced by BWV is considered ‘protected information’ under the Surveillance Devices Act 2007. This means that all footage has to be dealt with and stored in certain ways.
Police officers are not permitted to delete footage from the cameras, make copies or disclose the footage for non-official purposes.
The footage can be used:
In court as evidence
For investigation, including complaints against police
As training material for police, or
As otherwise allowed by Regulations.
What happens if I make an admission that is captured on body worn video?
Section 281 of the Criminal Procedure Act 1986 (NSW) requires that admissions to a strictly indictable offence be recorded.
However, for the admission to be admissible evidence in court, the police must comply with Section 139 of the Evidence Act 1995 (NSW) which requires an investigating official to caution the person before questioning them. A caution involves being told that you do not have to say or do anything but that anything you do say or do may be used in evidence.
If you are not provided with this caution, there may be grounds to argue the admission should not be admitted as evidence.
Can I request or refuse a BWV be activated?
In short, no.
The Police are under no obligation to turn on their video, even where it is requested by the persons present.
They also do not require a person’s consent before activating the camera.
An important thing to remember is that whether or not you are being recorded, there is no automatic obligation to answer questions posed by police other than questions as to your identity. You can read more here and here about your rights and what questions you may or may not have to answer. This applies equally to records of interview and if you are stopped by police in your car or on foot.
Can I access footage captured by body worn video?
A person who has been captured by body worn video is only permitted to view the footage – they are not to be provided with a personal copy.
This is because the footage is 'protected information’.
The issue of disclosing body worn video was considered in the 2019 case Cheung v Commissioner of Police heard before the NSW Civil and Administrative Tribunal (NCAT). This case involved a driver who was pulled over by NSW Police for a random breath test and later charged for using her mobile phone while driving. Cheung requested a copy of the body worn video captured during the vehicle stop in order to defend the charges. The Tribunal ultimately found that “the public interest considerations in favour of disclosure [did not] outweigh the strong public interest consideration against disclosure of the information”. As a result, NCAT made the decision that Cheung could not be provided with a copy of the video.
Concerns
The use of body worn video in NSW was subject to statutory review by the Department of Communities and Justice back in 2020. Despite receiving recommendations from groups including the NSW Law Society, Legal Aid and the Aboriginal Legal Service, the report made only one recommendation – to make no legislative changes.
This was in light of several submissions expressing concerns over the extent of police discretion in relation to the use of body worn video and the need for more explicit laws regulating when video must be recorded.
Allowing police officers to decide when to activate their videos poses obvious problems in terms of transparency and accountability. It may mean that situations that would benefit from body worn video are not being filmed, whether it be for reasons that protect individual officers or otherwise. It may also mean that situations that need not be filmed are captured, having the potential to inaccurately frame a situation.
Another concern relates to the disclosure of footage captured by body worn video. Being unable to access a copy of the footage restricts an accused person's ability to accurately assess the evidence and make an informed decision about whether to plead guilty or not guilty.
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This article is a summary only and does not constitute legal advice. It is recommended that if you are charged with an offence that you seek legal advice
