Director of Public Prosecutions v Basic
[2024] ACTSC 186
•12 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Basic |
Citation: | [2024] ACTSC 186 |
Hearing Date: | 11 June 2024 |
Decision Date: | 12 June 2024 |
Reasons Date: | 18 June 2024 |
Before: | Mossop J |
Decision: | See [33] |
Catchwords: | EVIDENCE – ADMISSIBILITY AND RELEVANCY – Voir dire – objection to admission of police body‑worn camera footage – submission that non‑compliance with s 81A of Evidence (Miscellaneous Provisions) Act 1991 (ACT) should lead to exclusion under s 81B – s 81B does not provide for exclusion when recording not used as evidence in chief and otherwise admissible EVIDENCE – ADMISSIBILITY AND RELEVANCY – Voir dire – objection to admission of police body‑worn camera footage – submission that footage not admissible under s 138 of Evidence Act 2011 (ACT) because of non-compliance with s 43B of Crimes (Surveillance Devices) Act 2010 (ACT) – examples to s 43B provide that use is overt if camera worn in a way that makes it visible to person being recorded – guidelines made under s 43C add further requirement that use be announced – evidence admitted notwithstanding contravention STATUTES – INTERPRETATION – Examples in Act – where s 132 of Legislation Act 2001 (ACT) permits examples to extend meaning of Act – Example 1 in s 43B(4)(a) of Crimes (Surveillance Devices) Act 2010 (ACT) means that use of body‑worn camera will be overt if camera worn in a way that is visible to person being recorded –– body‑worn camera footage admissible |
Legislation Cited: | Crimes (Surveillance Devices) Act 2010 (ACT), ss 43A, 43B, 43C, Pt 5A Crimes (Surveillance Devices) Body-worn Cameras Guidelines 2022 (ACT) Evidence Act 2011 (ACT), ss 66, 138 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 81, 81A, 81B, Divs 4.3.3, 4.5.1, 4.5.2, Pt 4.5 Legislation Act 2001 (ACT), ss 5, 6, 132 |
Cases Cited: | DPP v Ivanisevic (No 3) [2024] ACTSC 24 |
Parties: | Director of Public Prosecutions Armin Basic ( Accused) |
Representation: | Counsel M Howe ( DPP) JR Walker ( Accused) |
| Solicitors Director of Public Prosecutions Kamy Saeedi Law ( Accused) | |
File Number: | SCC 112 of 2023 |
MOSSOP J:
Introduction
1․On 12 June 2024, I ruled that the body‑worn camera footage taken by Detective Sergeant Christopher Tanner was admitted into evidence. I reserved my reasons for that ruling. These are my reasons.
2․Detective Sergeant Tanner was the first police officer called to an incident at premises in Chifley. This was the incident giving rise to the charge faced by the accused. The officer activated his body‑worn camera as he approached the front door of the residence. In accordance with its usual operation, the device back‑captured video of the preceding 30 seconds and captured audio and video from the point at which the device was activated. The footage shows the officer’s first interactions with the accused and the complainant at the door of their house. It then shows the officer’s interactions with the complainant, during which she made complaints about what had occurred.
3․Counsel for the accused objected to the admission into evidence of the footage. He made two submissions:
(a)he submitted that the footage did not comply with the requirements of s 81A(3)(b)(ii) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and, as a consequence, was not admissible; and
(b)he submitted that the use of the body‑worn camera did not comply with the requirements of s 43B(4) of the Crimes (Surveillance Devices) Act 2010 (ACT) and, as a consequence, was evidence obtained as a result of an impropriety or contravention of Australian law to which s 138 of the Evidence Act 2011 (ACT) was applicable.
The s 81A argument
4․Sections 81-81B of the Evidence (Miscellaneous Provisions) Act provide:
Division 4.5.1 Preliminary—pt 4.5
81Meaning of recorded statement—pt 4.5
In this part:
recorded statement means—
(a)an audiovisual recording—
(i) of a complainant answering questions from a police officer in relation to the investigation of a family violence offence; and
(ii) made by a police officer; or
(b)an audio recording that complies with paragraph (a)—
(i) if the complainant does not consent to an audiovisual recording; or
(ii) in exceptional circumstances.
Example—exceptional circumstances
technical difficulties with the visual aspect of the recording identified following the making of the recording
Division 4.5.2 Family violence offence proceedings—recorded statement of police interview
81ARecorded statement—requirements
(1)A police officer must, before making a recorded statement, tell the complainant that—
(a)the recorded statement may be used in evidence at a hearing; and
(b)if the recorded statement is used in evidence at a hearing, the complainant may be called to give evidence under cross‑examination in person at the hearing; and
(c)the complainant does not have to consent to the recording.
(2)A recorded statement must be made—
(a)as soon as practicable after the events mentioned in the statement happened; and
(b)in the form of questions and answers.
Note If the recorded statement is to be admitted as evidence in a proceeding, the rules of evidence apply to the content of the statement.
(3)A recorded statement of a complainant must include the following:
(a)the name of each person present during any part of the recording;
(b)a statement by the complainant—
(i) of the complainant’s name, age and whether the complainant lives in the ACT; and
(ii) about the truth of the representations made by the complainant in the recorded statement;
(c)any other matter prescribed by regulation.
(4)As far as is practicable, a recorded statement must not contain an image of—
(a)a child; or
(b)a person who is intellectually impaired.
(5)If any part of a recorded statement is in a language other than English—
(a)the recorded statement must contain an English translation of the part; or
(b)a separate written English translation of the part must accompany the recorded statement.
(6)A recorded statement must not be edited or changed unless—
(a)both parties consent to the edits or changes; or
(b)the court hearing the proceeding in which the recorded statement is tendered otherwise orders.
Example—court ordering change
editing the recorded statement to omit inadmissible material
(7)In this section:
hearing includes a pre-trial hearing.
intellectually impaired—see section 42.
police officer includes a person who is a member of the police force of a State or another Territory if—
(a)provisions of the law of that State or Territory correspond (or substantially correspond) to this part; and
(b)the person is trained in the taking of evidence under those provisions.
81BRecorded statement—may be admitted as evidence
(1)A recorded statement may—
(a)be played at the hearing of a family violence offence proceeding for the offence to which it relates; and
(b)if the recorded statement is played at the hearing—be admitted as all or part of the complainant’s evidence in chief in the proceeding as if the complainant gave the evidence at the hearing in person.
(2)However, the court may refuse to admit all or any part of the recorded statement if the court considers it is in the interests of justice to do so.
(3)The complainant may choose not to be present in the courtroom while the court is viewing or listening to the recorded statement.
(4)If the complainant is giving evidence by audiovisual link from an external place under division 4.3.5, the complainant must not be visible or audible to anyone in the courtroom by closed‑circuit television or by means of similar technology while the court is viewing or listening to the recorded statement.
(5)To remove any doubt, if a recorded statement is admitted as part of a complainant’s evidence in chief in a proceeding, the complainant may give further evidence in chief.
(6)This section is subject to section 81G (Recorded statement—admissibility).
(7)In this section:
hearing includes a pre-trial hearing.
5․The submission made on behalf of the accused was that the body‑worn camera footage fell within the definition of “recorded statement” because the complainant was answering questions from a police officer “in relation to the investigation of a family violence offence”. Assuming that to be correct, counsel for the accused then submitted that there was no statement made by the complainant about the truth of the representations made by her in the recorded statement for the purposes of s 81A(3)(b)(ii). That had the effect that the evidence was not admissible under s 81B. That was initially put on the basis that s 81B(1) did not permit its admission, but then subsequently the focus was on s 81B(2), which provides a power to the court to refuse to admit the recorded statement if the court considers it is in the interests of justice to do so. The submission was that it was in the interests of justice to refuse to admit the statement:
(a)in order to emphasise the importance of police compliance with the requirements for the making of recorded statements under Div 4.5.2 of the Evidence (Miscellaneous Provisions) Act; and
(b)because the subsequent evidence in chief interview conducted with the complainant (under Div 4.3.3 of the Evidence (Miscellaneous Provisions) Act) provided an account by the complainant as to what occurred.
6․The submission was that s 81B(2) provided a discretion to refuse to admit a recorded statement, even in circumstances which went beyond those covered by s 81B(1).
7․The submission made on behalf of the prosecution was that the conversation between the police officer and complainant immediately upon arrival at the property could not be said to be “in relation to the investigation of a family violence offence” because it was at such an early stage that the police officer was simply learning for the first time what the complainant said had occurred. The submission raised the question of whether there was a “temporal requirement” before the investigation could be said to be one of a family violence offence. It is unnecessary to determine this aspect of the argument because it is otherwise clear that the provisions of Pt 4.5 do not exclude the admission of evidence of this footage.
8․Counsel for the prosecution then pointed to the overall purpose of Div 4.5.2 and the fact that s 81B related to the admission of the statement as part of the complainant’s evidence in chief, as distinct from the admission of the recording more generally, and that s 81B(2) was a qualification operating upon the previous subsection rather than upon the admissibility of the statement at large. Counsel for the prosecution also pointed out that if the submissions made on behalf of the accused were correct, then there would, in effect, be greater restrictions on the admissibility of recorded statements of a complainant in family violence proceedings than existed in other proceedings, an outcome which he characterised as “a perverse result” which was “entirely inconsistent with the purpose of these particular provisions”.
Consideration
9․First, it is clear that s 81B relates to the use of such recorded statements as the evidence in chief, or part of the evidence in chief, of a complainant. It is a provision designed to expand the scope of recorded statements as evidence in chief.
10․Second, s 81B(2) is a qualification on the admission of recorded statements referred to in s 81B(1) as evidence in chief. It is not a more generally applicable discretion to refuse to admit evidence. The fact that it should be read as a qualification on admissibility under subs (1) is made clear by the commencing word, “However”, which clearly refers back to the previous subsection.
11․Having regard to that interpretation of the scope of s 81B, the requirements of s 81A do not have the effect of excluding the admission into evidence of a recorded statement if the provisions of ss 81A and 81B are not being relied upon. In the present case, the body‑worn camera footage was admissible pursuant to s 66 of the Evidence Act, being representations made by the complainant, who was available to give evidence, when the asserted facts were fresh in her memory.
The s 43B(4) argument
12․Sections 43A-43C of the Crimes (Surveillance Devices) Act provide:
43AMeaning of body-worn camera
For this Act, body-worn camera means a device that is—
(a)capable of recording visual images and sound; and
(b)usually worn on the body, whether or not the device is being worn when used; and
(c)approved, in writing, by the chief police officer.
43BUse of body-worn cameras by police officers
(1)A police officer may use a body-worn camera in the course of the officer’s duties.
(2)A police officer who is wearing a body-worn camera must use the camera when dealing with a member of the public in the course of the officer’s duties.
(3)Subsection (2) does not apply in circumstances in which the use of a body-worn camera—
(a)is not reasonably practicable; or
(b)could cause or increase a risk to a person’s safety; or
(c)would unreasonably limit a person’s privacy.
(4)The use of a body-worn camera by a police officer under this section must be—
(a)overt; and
Examples—overt use
1 The camera is used or worn in a way that makes it visible to the person being recorded.
2 A police officer in attendance tells the person being recorded that the camera is being used.
(b)in accordance with the guidelines under section 43C.
(5)However, the use need not be overt if—
(a)the camera is used when a police officer draws or uses a firearm or conducted electrical weapon; or
(b)overt use of the camera could cause or increase a risk to a person’s safety.
(6)A police officer may also use a body-worn camera if the use is—
(a)incidental to the use of the camera under this section; or
(b)inadvertent.
(7)Parts 2 to 5 do not apply in relation to the use of a body-worn camera under this section.
(8)In this section:
conducted electrical weapon means a hand-held or other electrical device designed to administer an electric shock on contact.
43CBody-worn cameras—guidelines
(1)The chief police officer must make guidelines about the use of body‑worn cameras by police officers under section 43B.
(2)The guidelines must include—
(a)requirements for the storage, use and disposal of a recording from a body‑worn camera, and information about how a person may access a recording under any applicable laws; and
(b)guidance about the circumstances in which a body-worn camera may or must be used; and
(c)a statement about how human rights have been considered in making the guidelines.
(3)The guidelines may include any other relevant matters.
(4)The chief police officer must consult the director-general before making a guideline.
(5)A guideline is a disallowable instrument.
13․The guidelines made for the purposes of s 43C are the Crimes (Surveillance Devices) Body-worn Cameras Guidelines 2022 (ACT) (DI2022-9). Although counsel for the accused placed emphasis upon clause 4.13, it is necessary to consider that clause within the context of the whole of the discussion in the Guidelines of overt use of a body‑worn camera (referred to in the Guidelines as BWC). That provides as follows:
Overt Use of a BWC
4.10.Under section 43B(4) of the Act, the use of a BWC by a police officer must be overt.
4.11.Covert use of a BWC by a police officer may be otherwise authorised by law. Covert use of a BWC refers to purposefully concealing the BWC so a person is unaware that a police officer is wearing and/or using a BWC. This use would only be permitted by warrant or emergency authorisation (for instance, under the Surveillance Devices Act 2004 (Cth)).
4.12.Section 43B(5) of the Act provides the use of a BWC need not be overt if the camera is used when a police officer draws or uses a firearm or CEW [Conducted Electrical Weapon], or overt use of the camera could cause or increase a risk to a person’s safety.
4.13.Whether use of a BWC is considered overt depends on all the circumstances. Generally, the use of a BWC may be considered overt where:
(a) The BWC is worn in such a way that is plainly visible to the person being recorded, and the recording (both video and audio) is not obstructed; and
(b) A police officer announces the use of the BWC as soon as reasonably practicable after commencing dealing with a person in the course of the officer’s duties, in a language that is readily understood by that person.
4.14.However, a police officer is not expected to announce the use of a BWC where it would not be reasonably practicable in the circumstances to do so. The following provide examples of such situations, where announcing the use of a BWC may not be considered reasonably practicable in the circumstances:
(a) The officer is in a crowded public place, including responding to a specific incident or engaging with specific people, and it would not be reasonably practicable to inform every individual present who may come into the view of the BWC; or
(b) Another officer involved in the interaction has announced that police officers in attendance are using BWCs.
4.15.When an officer has not announced the use of a BWC in accordance with Part 4.14, the officer must announce its use as soon as it becomes reasonably practicable to do so, and if requested to do so by a member of the public.
4.16.Under section 43B(5) of the Act, the use of the BWC need not be overt if:
(a) the BWC is used when a police officer (including another police officer in their vicinity) draws their firearm or arms a CEW; or
(b) Overt use of the BWC could cause or increase a risk to the safety of the officer or another person. For example, a situation may include (but is not limited to) police responding to an individual who is experiencing a mental health crisis and exhibiting dangerous and violent behaviours, which would be exacerbated with the announcement of BWC use, risking the safety of officers and the individual.
4.17.Per section 43B(6) of the Act, a police officer will not be considered to be in breach of these guidelines for incidental and inadvertent use of the BWC. Examples of situations involving incidental or inadvertent use may include:
(a) Accidentally and unintentionally knocking the activation button; or
(b) A technical fault causes the BWC to activate independent of the officer's actions or intention.
4.18.Where an officer becomes aware of incidental or inadvertent use they will, as soon as reasonably practicable, cease use.
14․Counsel for the accused submitted that there had been non-compliance with the requirement of s 43B because the use of the body‑worn camera had not been in accordance with the Guidelines under s 43C. That was because clause 4.13 of the Guidelines was said to require both that the camera be visible and that the police officer tell the person being recorded that the camera is being used. He submitted, consistent with the evidence, that Detective Sergeant Tanner had not informed the complainant that what she told him was being audio-visually recorded and that the only external indication that the body‑worn camera was operating was an intermittent beeping sound coming from the device.
15․Counsel for the accused also referred to the decision of Loukas‑Karlsson J in DPP v Ivanisevic (No 3) [2024] ACTSC 24. In that case, there was a similar argument for the exclusion of body‑worn camera footage in circumstances where recording of the questioning was not announced by the officer wearing the body‑worn camera. Her Honour said (at [30]):
I am not necessarily persuaded that the evidence obtained via body-worn camera on 16 March 2022 and 24 February 2022 should be ruled prima facie inadmissible. Nevertheless, I am prepared to assume for the purposes of this legal exercise that it is prima facie inadmissible. On the assumption that an impropriety exists, I will now consider s 138 of the Evidence Act 2011 (ACT) (Evidence Act).
16․Having considered the operation of s 138, the footage was ruled to be admissible.
17․Counsel for the prosecution submitted that clause 4.13 indicated that whether or not the use of the body‑worn camera was overt depended upon all the circumstances of the case. The combined conditions of visibility and announcement were not expressed as requirements but simply as statements of when “generally” use would be considered to be overt.
Consideration
Section 43B(4)(a)
18․In my view, the issue as to compliance with s 43B(4)(a) is resolved by the proper interpretation of that paragraph and the examples to that paragraph. Example 1 to s 43B(4)(a) indicates that it is sufficient that the camera itself is used or worn in a way that makes it visible to the person being recorded.
19․First, that interpretation is supported by the context of Pt 5A of the Crimes (Surveillance Devices) Act, which is the part of the Act that relates to body‑worn cameras. It is within an Act which establishes procedures for law enforcement officers to obtain warrants or emergency authorisations in relation to the installation, use, maintenance, and retrieval of surveillance devices. It also provides for the use of body‑worn cameras by police officers in the course of their duties. A body‑worn camera is a surveillance device within the meaning of the Act because it is a combination of a “listening device” and an “optical surveillance device” as defined in the Act. The provisions of Pt 5A provide a regime for the use of body‑worn cameras which takes them outside the scope of the other provisions of the Act: s 43B(7).
20․Second, subject to limited exceptions, there is an obligation on a police officer who is wearing a body‑worn camera to use that camera when dealing with a member of the public in the course of the officer’s duties: s 43B(2).
21․Third, the critical provision is s 43B(4), which requires that the use of the body‑worn camera be “overt” and in accordance with the s 43C Guidelines and provides two examples for the purposes of interpreting the requirement that the body‑worn camera be “overt”. Section 132 of the Legislation Act 2001 (ACT) provides that an example is “not exhaustive” and “may extend, but does not limit, the meaning of the Act”. Section 132(4) establishes that s 132 is a determinative provision for the purposes of ss 5 and 6 of the Legislation Act. It is in that context that the two examples must be considered. Given their separate numbering and the reference to the plural: “Examples”, it is clear that they are intended to be read as separate examples, each of which constitutes a discrete instance of overt use of the body‑worn camera. As a consequence, if “[t]he camera is used or worn in a way that makes it visible to the person being recorded”, then that is an “overt” use of the body‑worn camera for the purposes of s 43B(4)(a). If the circumstances set out in Example 1 would not ordinarily satisfy the requirement that the use was “overt”, then the example “extends” the meaning of “overt” in the Crimes (Surveillance Devices) Act pursuant to s 132(1)(b) of the Legislation Act.
22․So far as the meaning of the words used in the example is concerned, those words indicate that it is not necessary for the fact that the camera is operating at any particular time to be visually indicated to the person being recorded. That is because the example refers to “worn” as well as “used”, indicating that the manner of wearing the camera is sufficient, as distinct from the use of the camera. That is reinforced by the reference to “it” being visible where the reference to “it” is a reference to the camera as distinct from the operation of the camera. In summary, if the camera is worn in a way that makes the camera visible to the person being recorded, then that is sufficient to make the use of the camera “overt”. It follows that it is not essential, in order to make the use of the camera “overt”, that the police officer also take the additional step contemplated by Example 2 of telling the person that the camera is being used.
23․In this case, it was not contended that the body‑worn camera was not worn in a manner that made it visible to the complainant. That is consistent with what can be seen on the footage and what can be seen about the wearing of body‑worn cameras by the other officers present. The accused has not proved that it was not worn in a manner consistent with the requirements of Example 1 to s 43B(4)(a) of the Evidence (Miscellaneous Provisions) Act. Therefore, s 43B(4)(a) does not provide a basis upon which to exclude the body‑worn camera footage as evidence.
Section 43B(4)(b)
24․Finally, it is then necessary to consider the second requirement of s 43B(4), namely, that the use of the body‑worn camera be “in accordance with the guidelines under section 43C”. It is clear that the relevant part of the Guidelines is, to a large extent, repeating the requirements of the legislation. They are drafted without sufficient regard to their statutory role in further qualifying the manner in which police officers may use body‑worn cameras. As a consequence, the drafter has failed to clearly distinguish between those areas where they are merely summarising or repeating the effect of the statutory provisions, and those areas where they are imposing additional restrictions on the manner in which such cameras may be used. This is not an uncommon issue with the drafting of such instruments and generates problems where, like here, the instruments themselves are then given some statutory effect. The problem could easily be remedied by distinguishing between statements purporting to summarise or explain the effect of the legislation and guidelines going beyond the terms of the legislation as to how the legislative powers should be exercised.
25․The Guidelines make it clear that covert use must be authorised by law, such as under the Crimes (Surveillance Devices) Act. The text of the clause relied upon by the accused, clause 4.13, does not provide a basis for a conclusion that compliance with Example 1 is insufficient to establish that the use of the body‑worn camera was overt. The operative statement is that whether the use is considered overt “depends on all the circumstances”. The balance of the paragraph commences: “Generally”, indicating that is not intended to be a prescriptive requirement.
26․However, clauses 4.14 and 4.15 do appear to be intended to go beyond the terms of the statute insofar as clause 4.15 imposes a freestanding requirement that, where use of the body‑worn camera has not been announced due to circumstances where it would not be reasonably practicable to do so, an announcement must be made as soon as it becomes reasonably practicable. That suggests that the earlier provisions are intended to impose a qualified obligation to make an announcement about the use of the body‑worn camera and are not merely intended to be read as an (erroneous) explanation of the statutory requirement that the use of the camera be overt.
27․There is no doubt that, notwithstanding what I have said about the effect of the examples in relation to overt use, it would be open to the Guidelines to require that body‑worn cameras only be used when they are both visible and their use is announced. Notwithstanding the muddled drafting of the Guidelines, when clauses 4.13 to 4.15 are read as a whole, it appears that the purpose of those clauses is to impose such a requirement. Given that this appears to be the intention, and that the Guidelines are made by the Chief Police Officer, it is appropriate to interpret the Guidelines consistent with that intention.
28․In the present case:
(a)Detective Sergeant Tanner did not announce that he was using his body worn camera;
(b)that resulted from a simple oversight on his part;
(c)no submission was made that announcement of its use was not “reasonably practicable”; and
(d)no announcement of its use was subsequently made after any initial period of impracticability had passed.
29․Therefore, there was, through the operation of s 43B(4)(b), a contravention of the law for the purposes of s 138.
Section 138
30․It is therefore necessary to consider the operation of s 138 of the Evidence Act. Having regard to the matters in s 138(3), the desirability of admitting the evidence clearly outweighs the undesirability of admitting evidence obtained in contravention of s 43B. That is because:
(a)the evidence is of high probative value;
(b)the evidence is important for the proceeding;
(c)the proceeding involves an allegation of a serious family violence offence; and
(d)the gravity of the contravention (a failure to announce the use of the body‑worn camera) was low and came from an oversight.
31․Further, the person recorded as a result of the contravention, being the complainant, has not raised any issue with the use of the body‑worn camera footage obtained and the recording of the footage was as a result of her seeking police intervention.
32․The body‑worn camera footage was therefore admissible, notwithstanding the fact that it was obtained contravention of s 43B(4)(b).
Conclusion
33․It is for those reasons that I made the ruling that the body‑worn camera footage of Detective Sergeant Tanner was admissible.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 18 June 2024 |
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