What is the law on police body worn cameras in NSW

InNew South Wales, police are able to use body worn video cameras to record incidents and may use the resulting footage as evidence.

The use of body worn video (‘BWV’) cameras by police officers is legislated under the Surveillance Devices Act 2007 (NSW). The NSW Police Force also has standard operating procedures to guide their lawful use.

The cameras record ‘high-definition wide angle vision’ and ‘high-quality’ audio.

Police officers are to wear the BWV cameras on their body in a position where they are clearly visible, and not hidden or concealed.

The BWV may be used:

·     as evidence in court,

·     for investigative purposes (including complaints against police officers),

·     as training material for police officers, and

·     where it is otherwise permitted by regulations.

Officers can decide whether or not to turn on their BWV cameras. They are not required to turn the camera on, even if this is specifically requested by a member of the public.

They will also be allowed to continue recording, even where a person objects to being recorded.

The use of BWV cameras is permitted by police officers where:

·     the officer is acting in execution of their duty,

·     the use of body-worn video is overt, and

·     in circumstances where they are recording a private conversation, the police officer is in uniform or has provided evidence that they are a police officer to each party to the private conversation.

Circumstances in which the use of body-worn video may be overt include where the police officer informs the person who is to be recorded of the police officer’s use ofBWV.

However, it is also permitted where the use of BWV is ‘inadvertent or unexpected’ or it is incidental to the use of BWV in the circumstances previously outlined.

The standard operating procedures provide that BWV should be used in circumstances such as:

·     where police would use their official police notebook to record information,

·     to capture evidence or record something of relevance (including verbal statements),

·     when exercising a police power (i.e., arrest),

·     vehicle stops,

·     situations where the use of force is anticipated (including tasers), and

·     when conducting strip searches.

The recordings should be ‘incident-specific’, and the cameras are thus not constantly activated.

When deciding whether to commence recording, police officers are to consider factors including their safety and protection, the need to capture evidence as well as accountability and community expectations.

UponBWV being turned on, the person being recorded should be advised of the camera and that it is currently recording their actions and conversation.

If police officers are not able to do this at the time of activation, they should do so as soon as reasonably practicable after.

The statement that police officers routinely use is: “I am wearing a body-worn video camera and our conversation, and your actions are being recorded. Do you understand that?”

Where police seek to rely on BWV in criminal proceedings, they are required to serve it as part of the brief of evidence.

First account witness statements at the scene of an alleged crime will often be captured on BWV.

In these circumstances, witnesses will also be permitted by police to review their account recorded on BWV prior to making and signing any written statement made.

Issues may arise where an accused person makes admissions whilst being recorded on BWV.

However, for this to be admissible in court, the investigating officer is required to caution the person before questioning them. This essentially involves the officer stating that the person does not have to say or do anything, but that anything the person does say or do may be used in evidence.

If the accused person is not cautioned, there may be grounds for the BWV not being admitted as evidence, as outlined in section 139 of the Evidence Act 1995(NSW).

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