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POLICE POWERS

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POLICE ARE NOT ALL-POWERFUL

Here is a very important judgement set by the Supreme Court of the Northern Territory, which sets the precedent and is very important in determining police powers.

A very important thing to remember is that a person can only be placed under arrest if he has committed a crime or is reasonably suspected of doing so. For there to be a crime, there has to be a victim or injured party or a violation of contract. So if a person has not committed a crime, injured anybody or violated a contract, he should be free to go about his business without any form of harassment by police.

For example, in Victoria, the Crimes Act 1958 Section 456AA states that police may request ID of people believed to have committed an offence, believed to be about to commit an offence or believed to know something about an indictable offence. The point is that the term "Belief" is an assertation of mind and completely different to "Suspicion". A cop can be "Suspicious" of a person's intentions if that person is trying to climb into a house window and has a crowbar sticking out of a pocket. But if a person is merely walking down the street with a crowbar sticking out of a pocket, that is certainly not a good enough instance to create a "Belief" in a cop that the person is about to go and break into a house, or a good enough reason for that cop to demand to see that person's ID.

Therefore if a cop demands to see ID, a person can ask to know the grounds for that demand and if it's just a "Belief", I do not think that this is good enough. People can form a "Belief" in many things without substance, such as a "Belief" in a God without a shred of evidence to support such a belief. I would say that a cop having nothing more than a "Belief" in something is not legally sustainable and certainly not a good enough pretext to demand to see somebody's ID. A savvy defendant or a good lawyer would shred a cop in the witness box to pieces if the cop had arrested that defendant for refusing to produce ID purely on the grounds of the cop's "Belief" in something that could not be proven.

INFRINGEMENT ACTS ARE PRETEND LAWS

A very important ruling was made by Chief Justice Latham of the High Court of Australia, as follows:

This High Court ruling seems to imply that the Victorian Infringements Act 2006 is a pretend law and as Justice Latham stated, "anybody in the country is entitled to disregard it". So according to Latham's ruling, any infringement issued under the authority of this Act can be disregarded and no penalty for doing so can be imposed. The High Court is the highest branch of the Australian legal system and its rulings apply nationally, so it can be assumed that this particular ruling would also apply to any similar infringements acts in any state.

It is important to note that the Infringements Act 2006 has been validly challenged by Gerrit Schorel-Hlavka on 23 February 2011. It was challenged on Constitutional grounds and therefore it is Ultra Vires (Latin: "beyond the powers"), which is a phrase used in law to describe an act which requires legal authority but is done without it.

This means that no court can hear or determine any case involving the Infringements Act 2006 until or unless a court declares it otherwise." So if you are charged with any offence under this Act, your first line of defence is to challenge its validity and quote the precedent. But don't expect this challenge to be successful in all cases, because courts are notorious for ignoring the bleeding obvious.

ZIGGY INVESTIGATES

Firstly, I say that I support police to the hilt in their legitimate duties, such as stopping criminal acts, enforcing the law properly and acting in accordance to what the citizenry expect of them. Police have a very hard job and we can only imagine the anarchy and lawlessness that would be inflicted on us if there were no police. Having said this, I do not support police in their role as government revenue-raisers and tax collectors, such as cops booking motorists by entrapment and operating to both official and unofficial booking quotas.

So having absorbed rulings from the various courts, I decided to check them out and see what sort of rights people have when dealing with police. I sent an email to the then NSW Police Minister Michael Gallacher and asked him a number of questions, which he answered. However, some of his answers were rather ambiguous and still left some issues unanswered or unclarified.

MUST A MOTORIST STOP WHEN FLAGGED DOWN BY POLICE?

Gallacher quoted a number of NSW statutes that required motorist to stop when flagged down for a breath or drug test. I really have no issue with this, because I am very much against people driving cars under the influence of anything that may impair them. Gallacher also quoted Section 39 of the NSW Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) that makes it an offence for a person to fail or refuse to stop a vehicle when directed to do so by a police officer. This is not hard to understand, but motorists should learn how to act after they have been pulled over and that will make all the difference to an outcome in a police encounter.

CAN A MOTORIST SUE THE POLICE FOR BASELESS ARREST?

Gallacher dodged this question and stated that motorists in this situation should seek legal advice. I understand that motorists do commit offences and deserve to be arrested and I would not dream of questioning police in dealing with such people. However, there are mountains of examples of police wrongfully arresting people for no good reason and such victims of police errors should have recourse to compensation.

It costs a lot of money and time to fight court cases and people who are wrongly arrested and charged with crimes and who are acquitted should be able to successfully sue for every cent of their costs, plus sue for exemplary damages - punitive amounts as compensation for their trauma and inconvenience that the police caused by their wrongful arrest and prosecution of them. If people did this on a regular basis, police would think twice about exceeding their powers and they would have to give serious consideration to the consequences of their wrongful actions. This is why it is critical for people to always record every police encounter and use such recordings in evidence if they decide to legally proceed against police or the state government.

AN ACTUAL CASE HISTORY

For instance, one of my friends was out walking, when he saw police pull up in a paddy wagon and he started to video record them on his mobile phone, a perfectly legal thing to do. A person's eyes cannot be trespassed, therefore a person can record anything that he can see in any public place and nobody has the right to stop this activity.

The cops spotted my friend, so they grabbed him, seized his phone, handcuffed him and threw him into the back of the paddy wagon for no other reason than he was video recording them. They let him out after a short time and released him without charge. However, they kept his phone for some weeks, but because it was passcoded, they couldn't crack into it to delete the incriminating video recording.

My friend, who had already encountered rogue cops in the past and learned that hard video evidence is the only thing that can refute stitch-ups by cops, had a disguised video camera on his body and activated it when his mobile phone was illegally seized. So he had all the video evidence he needed to prove that the cops had unlawfully detained him and confiscated his phone. The outcome was that my friend sued the police and so far, he settled with the cops out of court for an amount just short of $100,000 and at the time of this writing, he is suing them for further damages. With his hard video evidence, he will most probably win handsomely again.

DO YOU HAVE TO ACTUALLY HAND YOUR DRIVER'S LICENCE TO A COP?

Section 175 of the NSW Road Transport Act 2013 (NSW) states:

So what is the definition of "produce"? There is case-law that clarifies this issue. The leading authority on the meaning of "produce" in the context of a traffic stop is Tremelling vs Martin (1971) Crim LR 596 (QBD).

In this case, Martin was pulled over by police and asked to produce his licence and insurance documents to a police station within five days. When he went to the police station to do so, he was met with a clerk who saw the documents briefly, but then had to go and answer a phone call. While the clerk was still on the phone, Martin decided to pick up his documents and leave, believing that they had been sighted. He was later charged with failing to produce his driver licence and certificate of insurance after being required to do so.

The matter ended up in court, where it was held that in situations where police ask you to produce your licence or insurance documents, you must give them a reasonable time to examine the documents. This rule applies regardless of whether you are asked to hand over your licence by the side of the road or at a police station. The court found that in Martinís case, he had failed to give the police sufficient time to examine the documents in question.

There is no definition of "reasonable time for examination" or any specific case-law stating whether or not a licence must be physically handed-over to police, but the time period must be sufficient for police to verify the authenticity of the licence. So there is a very strong argument that showing it for a sufficient period of time without physically handing it over would suffice. That assertion is supported by the definition of the word "produce" in the Oxford dictionary, which is "bring forward for inspection, consideration or use".

The reason that police require motorists to produce their licences is for them to ascertain that the drivers actually have valid licences that are not fake. So it should not take any more than a few seconds for a police officer to look at a licence held in a motorist's hand and determine that it is valid, especially when licences have holograms and other features to prove that they are genuine.

DO NOT HAND YOUR LICENCE TO A COP

There is no reason whatsoever as to why cops need to physically take your driver's licence and go off to their patrol cars to check on it and therefore your licence should never be handed to a cop. So if you are pulled over by police, you are within your rights to say something like "I am producing my driver's licence so you can see that it is current and valid, but I am not required to physically surrender it to you and I will not do so".

However, there are certain offences where police are able to suspend you from driving and require you to surrender your licence immediately, including speeding by over 45 kph and driving with a mid or high range prescribed concentration of alcohol. For those offences, police are required to serve you with a notice of suspension. So there is case law to show that you do not have to physically hand your licence to a copper, but you have to give him adequate time to see that it is current and valid. Of course you should be recording the encounter, so if the cop does something untoward, you have hard evidence that can be produced in subsequent legal action.

CAN POLICE STOP, ENTER AND SEARCH A VEHICLE?

The power of police to stop, search and enter a vehicle and to erect roadblocks is provided in Division 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 NSW (LEPRA). Obviously, the Act gives police the power to stop, search and enter a vehicle, however they need a very valid reason to do so. For instance, if a driver is pulled over and police look up his criminal record and see that the person is a convicted drug dealer or has been convicted on firearms offences, then it is probably reasonable for them to demand to search that person's car for drugs or guns. But police certainly have no valid reason to wantonly search the car of a "normal" law-abiding driver.

The important thing to note is that police do not have the right to enter and search a vehicle without a search warrant, unless they have reason to believe that a crime has been committed. Therefore, a motorist who is pounced upon by police should never ever allow them to enter and search their vehicles without a warrant. If police claim that they have the right to search a motorist's vehicle because they suspect the motorist of having committed a crime, then police have an obligation to state the details and specify the specific crime that they allege has been committed. This is where every motorist should video and audio record every encounter with police and also have a dashcam operating to gather hard evidence to ensure that the law is being enforced properly and police are not exceeding their powers.

HOW I HANDLE POLICE STOPS

My personal routine whenever I get pulled over by police is to immediately start the video camera app on my iPhone and in any case, my GPS-equipped dual camera dashcam is recording the encounter up to the time I switch off the car engine. I immediately get out of my car, making sure that the doors and windows are locked.

I stand in front of my car in a safe place and video record the encounter. If the cop yells at me to get back into my car, I tell him that this is an unlawful order and I am not required to comply. I produce my licence and state my name and address. I do not allow the cop to take my licence from me. If the cop asks me any questions, I refuse to answer them. I just keep my mouth shut, remembering that anything that I say can and will be used against me.

Always remember that cops are trained to ask questions that will entice motorists to incriminate themselves, such as, "Do you know how fast you were driving?" Many motorists will admit to driving slightly over the speed limit, thinking that if they admit to something, the cop will be more lenient. That is a really dumb thing to do, because any admission of speeding, even slightly, is an admission of guilt and the cop then has the hard evidence to issue a speeding ticket without even trying to prove anything. So just shut the hell up and never answer any questions that police put to you. Never admit to anything, even something that is obvious.

If the cop asks to look inside my car, I state that he cannot do so unless he has a valid search warrant or he has reasonable cause under the law to do so - and that cause had better be a damn good one, or he will find himself on the wrong end of criminal charges if he searches my car unlawfully. So far, no cop has dared to do this, probably realising that I am a "cleanskin" who is familiar with the limitations of police powers and is ready to challenge any unlawful acts by cops.

WHEN COPS DEMAND THAT YOU CEASE RECORDING THEM

If you are pulled over by police and you refuse to answer their questions and you start to video record them, many cops will demand that you cease doing so and some may even be stupid enough to threaten you with prosecution under the Listening Devices Act and other laws. This actually happened to me when I video recorded a cop in Holker Street Silverwater, who was entrapping motorists with a speed gun. He strode over to me and threatened me with arrest under the Listening Devices Act. Of course I told him politely where to shove his threat and challenged him to arrest me for doing something legal, whereupon he scuttled off with his tail between his legs.

The fact is that a person is legally entitled to record whatever he likes in a public place and police have no right to try and stop anybody from doing so.

The evidence to prove this is contained in the NSW Police Media Handbook, which states:

So if you are confronted by a belligerent cop who thinks that he knows the law about detaining you and trying to stop you from video recording him, you should always stare him down and challenge him to arrest you. if he is stupid enough to do that, you will have grounds for an unbeatable civil legal lawsuit against police and the state.

PREVENTING DELETION OF VIDEO EVIDENCE

For obvious security reasons, I only use an Apple iPhone because it is so secure, compared to Android phones that are notoriously easy to crack past the passcodes. I have removed all access to apps on the lockscreen except for the camera app. So when I get out of my car at a police stop, I lock my iPhone and then swipe left across the screen to open the camera app. I can then record the encounter with cops with my locked iPhone.

In the event that the cops try to stop me recording them or in the worst case, seize my iPhone, they won't be able to unlock it and delete the video recordings. I also tell the cops that the recordings are being streamed to a Cloud account in real time, so that no matter what they do, they can't delete those recordings that will be used against them for potential criminal charges if they commit any offences against me. Up to now, no cop has dared to transgress against me, as they did against my friend who successfully sued police and the state of NSW for false arrest and assault.

CONCLUSIONS

I fully support police who are performing their law enforcement role in a polite and deferential manner. However, I am very much opposed to police acting as revenue-raisers and tax collectors, as they do when they pretend to be enforcing speeding offences by hiding in bushes and snapping photos and then sending fines a month after the offence. Enforcement means preventing the offence at the time it is happening, not taking happy snaps and allowing perpetrators to keep going. This is akin to police dealing with a bank robbery by taking photos of the robbers as they run out of the bank with their loot and then trying to find them one month later. This is not enforcement - it is nonsense.

In my opinion, police who allow motorists to continue speeding after pinging them with speed guns should be charged with dereliction of duty. The principle of enforcement is that police stop the continuation of an offence at the time they are made aware of that offence. But if police set up speed traps and hide behind bushes and ping motorists speeding and allow them to continue to speed and then send them infringement notices, that is not enforcement at all. The police know damn well that they could stop people speeding merely by driving their marked police cars on the road, but they choose to entrap them instead.

Motorists who are booked in such a way should fight the bookings in court and question the police as to why they allowed them to continue speeding after ascertaining that they were doing so. This would be extremely embarrassing and would further prove that police were there to raise revenue, not to enforce the speeding laws and prevent motorists from speeding at the time.

But I want people to understand that they have legal rights and to realise that police do not have unfettered powers to stop and detain law-abiding people or demand their ID without very good legal cause. Again, I remind all citizens that they should never talk to police, because anything they say can and may be used AGAINST them - never FOR them.

TAKE MY GOOD ADVICE

I strongly advise people to always video record every encounter with police, as the old saying "A picture is worth a thousand words" applies in these cases. A video recording is the best evidence that will protect people from stitch-ups and false accusations.

I also strongly advise all motorists to install a top class GPS-equipped dual camera dashcam and always have it operating whenever they drive. There are many defective traffic cameras out there and also many defective cops who are intent on enhancing their booking quotas with the scalps of innocent motorists whom they think cannot prove that they were not speeding. A top class GPS-equipped dual camera dashcam that has the second camera recording the interior of the vehicle, including the driver, will quickly prove in a court of law that the vehicle was not speeding, the driver was no committing any traffic offences and the driver was always wearing a seat belt and not holding a mobile phone.

If you want to know about which dashcam to get, contact me. I don't sell these devices, but over the years that I was the webmaster of the now closed community organisation Campaign Against Road Ripoffs, I tested many of these devices and I know which ones are useless and which ones are the right models that will fully protect drivers.