Ziggy Zapata Title

RECORDING POLICE

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ALWAYS BE READY TO OBTAIN HARD EVIDENCE

I support the police when they are doing their job by apprehending criminals, enforcing the law and keeping the community safe. However, I do not support the police when they are deployed as government tax collectors, using speed guns to entrap and book motorists instead of deterring them from speeding in the first place. I will oppose rogue police who stitch up innocent motorists with false accusations of not wearing seat belts or holding mobile phones while driving, merely to boost their booking quotas - and believe me, cops do work to booking quotas.

I will do everything in my power to thwart these entrapment activities. One of the most contentious issues that has arisen is that of police powers and how police deal with the public. Apart from my own experiences in recording cops, I have been made aware of a number of instances where police have tried to stop people recording their activities in public places. These police have verbally stated that people who record them are breaching various laws, such as the Listening Devices Act and the Surveillance Devices Act and some police have tried to intimidate and bully people by threatening them with arrest if they record them. This has happened to me at least twice. Of course those threats have no substance whatsoever and are actually illegal.

RECORDING IN PUBLIC PLACES IS LEGAL

Imagine if video and audio recording in public places was really illegal. The news would literally be devoid of any video taken in public. News crews do not have special dispensation or exemption from any law. Journalists are not required to hold press passes or accreditation to record events or any other thing in public places, such as roads or outside courthouses, as we see most days on television. Any person can act as a journalist or reporter. So this very fact makes a complete mockery of any assertions or claims by police that recording them in public places is illegal. Without question, it is perfectly legal to do so.

In a television press conference, former NSW Police Assistant Commissioner Mark Murdoch stated that it was not against the law to film police or anyone in a public place. "We encourage people to film incidents to help gather evidence and we also use video cameras ourselves," he said. After an incident where a police officer tried to intimidate a member of the public who was video recording an incident where a person was grabbed and his head slammed into the footpath by a police officer, Murdoch stated, "The officer will be taken aside and this policy will be reinforced loud and clear." This was more than enough to prove to anybody that recording in public is completely legal and nobody has the right to prevent a person from doing this.

The Secretary of the NSW Council for Civil Liberties, Stephen Blanks asserted, "In a free society, you're allowed to do anything so long as it's not prohibited by law. There is no law that prohibits filming in a public place. Indeed the media rely heavily on the right to film in public places to produce news and other programs, so it's an absolutely fundamental right of any free society that things which occur in public can be filmed."

ALL STATE AUTHORITIES CONFIRM THAT IT IS LEGAL TO RECORD POLICE

South Australian Police stated that the public can record whatever they like. If police officers are in a public place, they should be aware they could be photographed or video recorded by anyone. A Victorian Police spokesperson stated that there are no restrictions on any person filming or taking photos within public places and this includes members of the public and media. The Australian Capital Territory arm of the Australian Federal Police stated that members of the public have the right to take photographs and film police officers and incidents involving police officers that are observable from a public space or from a privately owned place with the consent of the owner or occupier.

NSW Police stated, "Police do not have the power to prevent anyone from photographing or filming them and cannot confiscate camera equipment or delete images and recordings." West Australian Police specifically referred to an incident where a police officer was convicted of assault after being filmed on a phone. They said, "We see it as more of a benefit than a hindrance as it helps ensure that all WA Police are in the right place at the right time doing the right thing."

There is a mountain of evidence, statements from authorities all over Australia and various legal opinions to show beyond any shadow of doubt that people can photograph or video and audio record police, providing that they do not interfere or obstruct those police in the performance of their official duty. So if you are standing a reasonable distance from an incident involving police, you are completely within your legal rights to record that incident and any interaction you have with police if they try and stop you from recording anything you like.

EXCERPT FROM THE NSW POLICE FORCE HANDBOOK

If anybody had doubts about the right of people to film police in public places, this excerpt from the NSW Police Force Handbook 2015 should dispel that myth. Furthermore, if any NSW cops try to prevent you from audio or video recording them, just refer them to page 242 of their own instruction manual. This is what it states:

PHOTOGRAPHING OR FILMING POLICE

Under section 91 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer may establish a crime scene and exclude the media or members of the public from entering or being inside the crime scene. Once a crime scene is created, a police officer must, if reasonably appropriate, give the public notice that the premises are a crime scene. Any action that police officers take should be reasonable and justified, having regard to the need to preserve the integrity of the crime scene.

However, the media or members of the public have the legal right to photograph or film into the crime scene from a public space or from a privately owned place with the consent of the owner/occupier. Police have no specific rights or powers to do anything to prevent the media taking photographs of or filming police officers or family members at crime scenes, if the media remain out of the crime scene itself and obey all other laws.

Generally speaking, if the media or members of the public photograph or video police officers, victims, operations, incidents or crime scenes from a public space or from a privately owned place with the consent of the owner/occupier, police do not have the power to:
The media or members of the public can only be requested to move on if there are legitimate safety or operational reasons that provide a legal power to do so. Feeling uncomfortable about being filmed or photographed is not an operational reason.

The media or members of the public can only be requested to move on if there are legitimate safety or operational reasons that provide a legal power to do so. Feeling uncomfortable about being filmed or photographed is not an operational reason.

It is also not the job of police officers to decide whether legally obtained media footage or photographs are insensitive or in poor taste. What the media may publish is governed by various broadcasting laws and codes of conduct.

The same situation applies in all Australian jurisdictions, so you should always video and audio record any encounters you have with police and always be ready to video record anything that you may witness police doing in public that appears to be untoward or unlawful. The old saying 'A picture is worth a thousand words' always applies, especially in court.

THE NSW SURVEILLANCE DEVICES ACT

The Surveillance Devices Act 2007 (NSW) states:

It is obvious that a person can record police in any public place, there is no privacy in any public place, therefore this part of the Act is not relevant. A conversation with a policeman in a public place does not constitute a private conversation, simply because anybody in the vicinity can listen to it. But even if a person was using a hidden camera and did not inform the cop that he was being filmed, that does not matter because it is perfectly legal to film using a concealed camera in public places.

There are certain exemptions to the Surveillance Devices Act, as follows:

The exemptions to this part of the Act show that the use of a recording device to protect the lawful interests of the principal party is completely legal, therefore a person who is confronted by a policeman demanding that he cease recording merely has to advise that he is doing so to protect his lawful interests and he should refuse to stop recording.

NEWS REPORT PROVES THAT RECORDING IN PUBLIC IS LEGAL

Channel 10 cameraman Nick Tohme spotted some police in Sydney's King's Cross arresting a man, so he pulled out his mobile phone and started to record the incident. A policewoman rushed over to Tohme and aggressively objected to him and a colleague filming her. Tohme claimed that the officer issued a threat of violence and a threat to break his property. Tohme claimed that the policewoman shoved him and used foul language.

This report shows yet again that by law, any member of the public is entitled to film in a public place. The fact that in this particular incident that police backed off when Tohme produced his media identification is of absolutely no relevance. Members of the media do not have any special dispensation to record in public and any person can do this. Police cannot legally prevent members of the public from filming them. The outcome of this particular incident was that NSW police local area commander Tony Crandell admitted that the policewoman who abused Nick Tohme was counselled for her belligerent attitude and her illegal demand that he stop filming her.

If police push or threaten people for filming them or seize the cameras and look at the material on them, those police can be disciplined or even charged if the people who were assaulted by them press charges. The NSW Police Legal Services has warned police that as more and more cameras are being carried by citizens in their phones, police are increasingly subject to being recorded, but there is absolutely nothing that they can do about this. In any case, the policewoman who threatened Nick Tohme was dealt with and hopefully she now understands that she broke the law and exceeded her authority by a long shot.

LEGAL ADVICE FROM THE OAIC

I wrote to the Office of the Australian Information Commissioner (OAIC) to ascertain the legality of recording in public places and this was the response.

WHAT TO DO WHEN RECORDING POLICE
NEVER BE BULLIED OR INTIMIDATED OUT OF YOUR LEGAL RIGHTS

Most cops are responsible and do their jobs well, but there are some real power-mad rogue cops out there. In fact, a very credible investigation in NSW showed that one out of every forty cops had a criminal record and some convictions were for extremely serious crimes, such as stealing, breaking and entering, fraud, assault and battery, illegal drug use, framing innocent people and many other offences.

When encountering police, it is important to understand that the cop who accosted you may be a criminal and may not hesitate in booking you or stitching you up for an offence that you did not commit. So to be on the safe side, it is vital to consider every cop to be a rogue and do everything possible to protect yourself against any frame-ups by obtaining hard evidence for use in court and other places. The average citizen stands very little chance in court when a cop blatantly lies and there is no evidence to refute the cop's testimony except the citizen's own word.

Some cops will try to dissuade people from recording them by stating that they are recording the encounter and there is no need for people to make their own recordings. Cops have told this to me on a few occasions, in order to persuade me to stop recording them. This is utter nonsense and nobody should ever fall for this ploy. NEVER EVER let cops talk you out of recording them for any reason. It is not surprising to see how many police video recordings of cops committing offences are 'accidentally' erased or 'lost' when people abused by cops demand those videos as evidence.

Knowing that cops often deliberately erase or 'lose' their video recordings of incidents where they have committed offences, people should always be prepared to record every encounter with police, in order to have hard evidence of what happened and what was said and done by both them and cops. Then there can be no question as to exactly what happened.

RESIST POLICE THREATS TO CONFISCATE RECORDING EQUIPMENT

I have been made aware that on some occasions when police were being recorded by people, police officers had threated them with confiscation of their recording equipment. The reason given by those cops was that the recordings constituted 'evidence' that had some sort of relevance. Well, one word can describe this - bullshit. People have the legal right to record incidents, especially those that involve them, to protect their lawful interests. This right is stated in all federal and state legislation that pertains to surveillance and listening devices. If those recordings are needed as evidence, they can be subpoenaed.

Police have no right to confiscate evidence that serves to protect the rights of the people gathering it. It is obvious that if police try to confiscate such evidence, they are really trying to pervert the course of justice. In some cases, recorded matter has mysteriously been erased when it showed police acting in an unlawful manner. Cops do not like being recorded, however in most instances, it makes them behave and adhere to the law, as they know that such recordings can be used against them in any cases that ensue.

Therefore if a cop threatens to confiscate your camera or smartphone, firmly tell the cop that you are recording him to protect your lawful interests as you are entitled to do under federal and state legislation. State firmly that if he dares to confiscate your camera and the evidence contained within it that you are gathering, you will take very strong legal action against him personally, as you consider that he is attempting to pervert the course of justice by gaining access to evidence that may incriminate him and possibly try to destroy it.

ALWAYS PROTECT YOUR SMARTPHONE WITH A PASSCODE

The most important thing to do in such a situation is to ensure that your smartphone is protected with a passcode that will lock the phone completely after a certain number of attempts. Obviously if the cop can't get at the contents of the smartphone, the only way he can destroy evidence against him is to destroy the entire phone, which itself will prove exactly what he was doing. But the best thing is to completely resist being intimidated by cops and refuse to stop recording or to hand over the recording device.

One very good way of preserving such recordings and completely negate police efforts to get hold of them is to set your smartphone to upload the recordings to a 'cloud' service in real time, such as iCloud. Tell the cop that the recording is being uploaded at the time and that even if he manages to illegally confiscate your smartphone, he cannot get his hands on the recording that has already been transmitted to the 'cloud' storage or to be able to delete it in any way. Tell the cop that his attempts to illegally confiscate your smartphone will be recorded and will be used to charge him with criminal offences and also to sue him for damages in the civil courts, as he may have lost his qualified immunity to such legal action.

WHY YOU NEED A GPS-EQUIPPED DASHCAM

A Queensland court dismissed a case from Queensland Police against a car enthusiast who had been wrongly charged with a hooning offence for 'wilfully creating undue noise' in his Lamborghini Huracan. The ticket, issued in October 2015, could have resulted in the Huracan being confiscated on-the-spot for 30 days. The driver, entrepreneur Mark Trueno, who is the founder of 'StreetFX', one of the largest automotive social channels globally, successfully defended his right to drive his Lamborghini without being unfairly targeted.

Sergeant Russell Waters testified in court that Trueno had started his Huracan, revved the engine, then drove the car in a manner of operation that wilfully created undue noise. According to Waters, the stock-standard Lamborghini was the loudest car he had heard in his 30-plus years of policing. Waters presented himself as a qualified driver-training instructor and claimed that he had driven Lamborghinis in the past. However when questioned as to which model Lamborghinis he had driven, he couldn't recall.

Waters testified that Trueno deliberately drove his vehicle specifically to generate undue noise. He presented a shortened version of the audio recording between himself and Trueno to court, suggesting that the remainder of the near 45-minute audio recording of the event was not available. According to the notes on the ticket issued to Trueno, Waters estimated that the Lamborghini's speed at 90 kph in a 60 kph zone and on his estimate, the car had managed to reach that speed in around one second.

Trueno denied all charges, disputing the estimated speed and pointing out that the noise generated is characteristic of the Lamborghini and not a fault of its operation. So, what saved Trueno? It was his dashcam's built-in GPS unit. The verified data from the dashcam proved that Trueno stopped at a red light, an event Sergeant Waters said did not happen and never even reached the prevailing speed limit. Trueno's GPS data showed a maximum speed of 54 kph. The data also showed that he did not accelerate to that speed in a manner which would suggest the car was at full throttle to generate the alleged noise.

The data also showed that the Lamborghini didn't reach 90 kph in around one second, as had been alleged. The Huracan's official 0-100 kph time of 3.2 seconds would have ruled out any chance of it. This was further backed up by Anthony Webb De Zen from Lamborghini Brisbane, who testified that the Huracan is by its design a vehicle that generates engine and exhaust noise beyond that of a standard car, but is still within Australian Design Rule (ADR) limits. He also testified that the car automatically revs on a cold startup, dismissing claims that it was a deliberate attempt at creating noise.

Having reviewed the case, Magistrate Judith Daley found there was insufficient evidence that would suggest beyond reasonable doubt that Trueno drove his vehicle to create undue noise. Trueno, who had earlier in the day been taking kids for drives in his vehicle for charity, said that he believed the police had targeted him unfairly. "If I had been in a Toyota Corolla, going faster, he wouldn't have even noticed," Trueno said. "He saw something bright that made a noise he didn't like and decided he could enforce the law in a manner which suited his own obvious anti-car enthusiast agenda."

MY COMMENTS - This was a clear case of deliberate victimisation of Mark Trueno by rogue cop Sergeant Waters, who was quite prepared to deliberately commit perjury to try and get Trueno convicted. He lied to the court about the level of sound from the Lamborghini and even worse, he lied under oath that he estimated that this car accelerated from zero to 100 kph in just one second. There is not a car in the world that can do this and Waters, being an experienced cop, would have known this. But he deliberately gave false testimony to the court about this and he should have been charged with perjury.

If Trueno had gone to court to defend these charges and all he had was his verbal testimony, it would have been almost certain that the magistrate would have believed that cop, because this is what almost invariably happens in these courts. I would hazard a guess that the cop didn't know that Trueno had a GPS-equipped dashcam recording the incident. He probably believed that he could get up in court and 'verbal' Trueno, thinking that it was going to be his word against that of the defendant who had no evidence to back up his story. The cop would have received a nasty shock when Trueno presented his dashcam evidence that proved that he wasn't even speeding, let alone accelerated his car at rocket speed.

The unfortunate and very unfair aspect of the case was that despite having the entire infringement thrown out on its ear, the magistrate declined to award Trueno his legal costs. So he wasted two days in court and won the matter comprehensively, but was still out of pocket. All costs should always be awarded to defendants who win their cases, otherwise those costs can be seen as penalties imposed on innocent people. If this had happened to me, I would have sued the police in the civil jurisdiction for those costs, plus anything else I could throw at them. And having the magistrate's verdict in my favour, I don't think that I would lose that civil action either.

This case should demonstrate beyond doubt why you should have a top-class GPS-equipped dual camera dashcam running at all times while driving. The up-front investment of a few hundred dollars may save you a lot more down the track and it is probably the best one-off insurance policy that a motorist can have. The other strategy is to always video record every police encounter on your smartphone, taking precautions to ensure that a cop cannot unlock your phone and delete your recordings of him acting illegally or thuggishly. Just remember that a picture is worth a thousand words and like in the case of Mark Trueno, having the right equipment and using it when being accosted by police can literally save your neck. Of course the golden rule is to never make any admissions to police. Say nothing.

WHAT TO DO IF YOU ARE ACCOSTED BY POLICE

If you are stopped 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 silly enough to threaten you with prosecution under the Listening Devices Act, the Surveillance Devices Act and other laws. This is exactly what happened to me when I video recorded a cop who was entrapping motorists in the Sydney suburb of Silverwater. The cop threatened me with arrest until I told him in no uncertain terms that if he did this, he would be facing a massive lawsuit. Luckily for the cop, he thought better of it and scuttled off.

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 one thing that I have learned about police is that most of them do not actually know the law. Most cops on the beat or in patrol cars are merely trained to try and prevent criminal activity that they observe at the time and to book people for traffic and other common infringements, but very few of them have a good understanding of the law, especially in regard to such statutes as the Listening Devices Act and the Surveillance Devices Act.

In fact, many cops have been known to literally invent laws on the fly to try and support their illegal actions, as was so beautifully demonstrated by that cop who tried to stop me from video recording him by threatening me with fabricated offences under the Listening Devices Act. He simply did not have the foggiest notion about my right to video record him, so he just tried to intimidate me by inventing an offence until I challenged him to arrest and charge me and then threatened to sue him when his fabricated accusation was exposed in court.

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 filming him in action, don't take any nonsense from him about you doing something illegal by recording him. Just challenge the cop to arrest you and tell him that if he dares to do that, you will take him to the cleaners in court with a massive damages lawsuit. And one really good thing that you can tell the cop is that if he commits an illegal act, he will lose his qualified indemnity and become personally liable for damages.

PROTECT YOURSELF AT ALL TIMES

The bottom line is that citizens have legal rights and police do not have unfettered powers and they should damn well know it. I advise all people to support police who are doing their job in protecting the citizenry, but promptly bring them to heel if they exceed their powers, act as tax collectors or try to intimidate people from exercising their legal rights.