CRIMINAL LAW - EVIDENCE - evidence improperly or illegally obtained - overt use of body worn cameras - application of s 43B of the Crimes (Surveillance Devices) Act 2010 (ACT) - consideration of s 138 and s 139 of the Evidence Act 2011 (ACT) - body worn camera footage inadmissible in circumstances where the use of the camera was not overt

Crimes (Surveillance Devices) Act 2010 (ACT) s 43B

Crimes (Surveillance Devices) Body Worn Camera Guidelines 2022

Evidence Act 2011 (ACT) ss 138, 139, 142

International Covenant on Civil and Political Rights Articles 14, 17

Briginshaw v Briginshaw [1938] HCA 34

• 1․ The defendant, Mr Eduardo Parreiras, is charged with one act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) with a backup charge of indecent exposure contrary to s 393 of the Crimes Act 1900 (ACT).
• 2․ This matter was heard on 8 November 2023. The hearing is complete; much of the evidence was received on the voir dire. The issue is admissibility of events captured by the informant on body worn camera on two occasions. This decision is as to the voir dire only.
• 3․ The charges relate to a complaint made by a 17-year-old female ('the complainant') who says that she saw a man masturbating while standing outside of his motor vehicle in the car park at the Dickson Aquatic Centre on 22 November 2022.

• 4․ The complainant took photographs and reported the matter to Crimestoppers. Constable Jesse Forge and Constable Monica Ballard took her complaint in person on 24 November 2022. The complainant also forwarded four photographs and a screen shot recording date, time and location she had taken on her mobile phone during the incident to Constable Forge. The photographs, as enhanced by Constable Forge expanding them, show a grey SUV style vehicle with a dark roof rack and silver bull bar. The make and registration plates are not legible. There are 2 light markings on the rear windscreen. They showed a swarthy male standing by the vehicle. What is evident in photographs was consistent with the description given by the complainant as to the motor vehicle and the appearance of the man adjacent to it.
• 5․ On 24 November 2022, Constable Forge obtained and reviewed closed-circuit television footage from the Dickson Aquatic Centre. From about 13:47:39 onwards the video records a grey SUV with bull bar and ladder on the roof driving to the exit of the Dickson Aquatic Centre car park. The registration number of the vehicle is not identifiable in the footage.

• 6․ I am satisfied of the following facts on the balance of probabilities having regard to s142 of the Evidence Act 2011 (ACT) ('Evidence Act').
• 7․ At about 11:20 AM on 25 November 2022, Constable Forge and Constable Ballard, along with First Constable Jack Bigmore, were together in a police car patrolling in Dickson. Constable Forge spotted a person and vehicle of interest in a similar location to that described in the complaint.
• 8․ They stopped and all approached on foot. Constable Forge conducted a registration check of the vehicle which was recorded to the defendant. He also noted two stickers on the rear window, one oval, one rectangular.
• 9․ The officers were wearing standard issue body worn cameras on their chests attached to their black police ballistic vests. The cameras are small black rectangles with a large central on/off button. A small indicator light sits on top of the camera; it is red when off and turns green when activated. The small light is more visible at night. The cameras beep when activated. They record visual images immediately they are turned on; sound recording begins 30 seconds later.
• 10․ Constable Forge and First Constable Bigmore activated their body worn cameras. Their exchange with the defendant was recorded. He was not told that the conversation was being recorded. He was not told that the police were investigating a crime. When he asked what the police were doing Constable Forge stated "just doing a patrol about; doing a bit of targeting who's out and about".
• 11․ In response to questions from Constable Forge, the defendant disclosed that:

(a) he was the owner and driver of the motor vehicle;

(b) he had had it for a long time;

(c) he was a painter;

(d) he was working in Gungahlin but had been in the area because of a job in Ainslie over the last few days and the need to go to Bunnings;

(e) he worked high up and used ladders;

(f) he could fit ladders on top of the vehicle;

(g) he had been in the area "the other day";

(h) and his mobile number was disclosed.

• 12․ Constable Ballard took some photographs of the car, a grey Jeep Grand Cherokee registration number [redacted], on her police issued mobile phone.
• 13․ Constable Forge was asked when he formed the view that the defendant was a suspect. He responded:

"[I]n regards to that, I have classified the vehicle - it matched somewhat similarities to what was provided from the complainant/victim and also what was observed on the CCTV; however, I was not under the immediate suspicion that that was confirmed to be the person in question. Including to the interaction of the person, I was not aware that he would have been directly - until after conducting the investigation".

"[A]fter speaking with the-the male, I did then suspect he was the offender of the incident." When asked when he formed the view that the defendant was a suspect the officer responded "when he informed me that it was his vehicle and describing to me about what he does for a job."

He conceded in cross-examination that he had at least formed the view when approaching the defendant's motor vehicle that he had found the vehicle involved in the complaint, that is he believed or suspected it to be so.

• 14․ The following exchange took place between Counsel for the defendant and Constable Forge:

Q: "I am suggesting that they were not just generic questions. They were, in fact, deliberate and specific questions that you are asking to try and connect Mr Parreiras to the alleged on 22 November?" > > A: "I was more specifically wanting to identify him and what he did for work, and also his actions". > > Q: "All right. I suggest, Constable, that you knew exactly what you are doing and that by keeping it casual and friendly that you would be able to get Mr Parreiras to make admissions?" > > A: "I was more trying to build my suspicions on if he was the person of interest or not, as I suspected-as I said, the vehicle was of interest and I did suspect that was the vehicle of interest." > > Q: "And so in those circumstances, you had no general interest in what he did for work, did you?" > > A: "I generally did as well, yes, because I wanted to know who was out and about in the-in the general vicinity of the area." > > ... > > Q: "Your evidence has been that you did not form a suspicion that he was the offender until after you had finished the conversation with him?" > > A: "Yes." > > Q: "And I want to suggest to you, Constable, that you are not being truthful in that evidence and that you, in fact, had a suspicion even before you started speaking to Mr Parreiras?" > > A: "I had a suspicion that it was the vehicle of interest. I could not confirm whether or not it was him, in fact-that he was the offender until after the questioning."

• 15․ The defendant was not cautioned at all during this interaction. Constable Forge said that was because "I was just having a general conversation with a member of the public in a public area".
• 16․ First Constable Bigmore was asked about his engagement with the defendant. He did not recall telling the defendant that he had activated his body worn camera nor did he caution the defendant. He was asked why they approached the defendant. He responded:

"[W]e were conducting some enquiries and Constable Forge's behalf were driving through-Jesse (Constable Forge) called on the rear or side car park, or the rear car park at Dickson pulled in Dickson. I recall doing, driving through and doing a lap and seeing the vehicle of interest and a person of interest. So we stopped."

"Constable Forge indicated that he had seen the vehicle of interest and a person of interest. We stopped. We exited our police vehicle, approached the vehicle, approached the person, identify that person, had a short conversation with him..."

• 17․ This further exchange took place between counsel for the defendant and First Constable Bigmore:

Q: "You understood though, Constable, the questions were being asked about Mr Parreiras vehicle and his line of employment, his movements this day and on other days was clearly related to the enquiries you are making about the alleged act of indecency? > > A: "Yes. I was-Constable Forge was informant for the matter and so I was allowing Constable Forge to lead what if we did, whatever enquiries it was. And if he had cautioned him then that is Constable Forge's decision. I simply, I just asked some very basic questions". > > Q: "And you do not think in this specific situation that it is either required or necessary to caution a potential suspect?" > > A: "I don't-I couldn't-I don't know how to answer that"...

Q: "[A]nd there was nothing, no reason or no basis for which he could not have told Mr Parreiras that you were recording?"

A: "No. I wouldn't say so".

Q: "Are you familiar with the guidelines that the Chief Police Officer has issued in relation to the use of your body worn video?"

A: "Yes".

Q: "And you appreciate that they require the use of your body worn video to be overt?"

A: "I would have to check the guidelines but I cannot confirm or deny at the moment"

Q: "You do not-do you know what the guidelines are?"

A: "Not verbatim off the top of my head, no, I do not."

• 18․ Later that day, an evidence in chief interview was conducted with the complainant by Senior Constable Nigel Laverty, a prescribed person, and First Constable Forge.
• 19․ On 1 December 2022 Constable Forge, Constable Ballard and Senior Constable Laverty attended the defendant's home. Constable Forge's body worn camera was activated as he approached the home. The defendant answered the door at the officer's request. The defendant again was not advised that the body worn camera was active.
• 20․ Constable Forge asked for identification and without invitation followed the defendant into his house to retrieve that. He went as far as the garage with the defendant who retrieved a document from near a grey motor vehicle. When Constable Forge turned around to follow the defendant back through the house, Constable Ballard and Senior Constable Laverty were also inside the house.
• 21․ Constable Ballard gave evidence that one of the police officers in attendance on 1 December 2022 at the defendant's house had asked "can we come in?". She could not remember if it was a male or female occupier but said that one of them had given them consent to enter the premises, responding "yes". She could not recall who had asked or who responded. The exchange was not audible on the body worn camera recording.
• 22․ Constable Forge asked the defendant to come outside the front of the house, which he did. There he was placed under arrest and cautioned in respect to an allegation of an act of indecency. Evidently the defendant speaks English as a second language and had some difficulty in comprehending what was put to him immediately.
• 23․ The defendant was allowed to re-enter the house to collect his personal belongings. Again Constable Forge followed him into the garage where a grey SUV with silver bull bar was visible. A number of ladders were hanging on the garage wall.
• 24․ Constable Forge obtained the results of an IPND enquiry made on 27 February 2023 relating to the defendant's then mobile telephone number. He also obtained call charge records for that mobile number for 22 November 2022 which disclose that between 1240 and 1346 the defendant's telephone was associated with latitude 35.250329 and longitude 149.142947. Dickson is mentioned on the call charge records. No further explanation of the records was provided.

(a) Video footage captured on the body worn camera of First Constable Jack Bigmore relating to a patrol through the Dickson Aquatic Centre car park on 25 November 2022;

(b) Video footage captured on the body worn camera of Constable Jesse Forge relating to a patrol through the Dickson Aquatic Centre car park on 25 November 2022;

(c) Video footage captured on the body worn camera of Constable Jesse Forge relating to the arrest of the defendant on 1 December 2022;

(d) Call charge records and the IPND inquiry relating to the defendant's mobile phone number.

• 26․ The objection relies on two overlapping grounds:

(a) s 138 of the Evidence Act that the evidence was improperly obtained or obtained in contravention of s 43B of the Crimes (Surveillance Devices) Act 2010 (ACT) ('Surveillance Devices Act').

(b) s 139 and s 138(2)(b) of the Evidence Act as to "admissions" by the defendant on 25 November 2022 in the absence of caution.

• 27․ Section 138 of the Evidence Act provides:

(1) Evidence that was obtained -

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account -

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

• 28․ The Surveillance Devices Act provides at Section 43B (examples omitted):

(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

(b) in accordance with the guidelines under section 43C.

• 29․ The Crimes (Surveillance Devices) Body Worn Camera Guidelines 2022 (issued 8 February 2022 by the Chief Police Officer, provides, relevantly:

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.

• 30․ The Evidence Act at Section 139 provides, relevantly:

(1) For section 138(1)(a), evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if -

(a) the person was under arrest for an offence at the time; and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that the official held, to arrest the person; and

(c) before starting the questioning the investigating official did not caution the person 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.

(2) For section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if -

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and

(c) the investigating official did not, before the statement was made or act was done, caution the person 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.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if -

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if -

(a) the official is exercising functions in relation to people or goods entering or leaving Australia and the official does not believe the person has committed an offence against a Commonwealth law; or

(b) the official is exercising a function under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

• 31․ Counsel for the defendant submits that the evidence obtained on 25 November 2022, and that obtained in consequence of it, was obtained in contravention of s 43B of the Surveillance Devices Act because the use of a body-worn camera use was not overt. Whilst worn in a prominent position, the cameras are not plainly visible or identifiable as such, nor was there any warning or announcement by the officers. Further, Constable Forge, being the person conducting the questioning, made a false statement in the course of the questioning, being that the police were merely conducting a routine patrol when speaking with the defendant, and knew that the false statement was likely to cause the defendant to make an admission. It was submitted that Constable Forge sought to elicit evidence that linked the defendant to the suspect grey vehicle and to the incident observed by the complainant on 22 November 2022.
• 32․ Alternatively, the evidence obtained on 25 November 2022, and that obtained in consequence of it, is inadmissible under section 139 of the Evidence Act, because Mr Parreiras was not provided with a caution such that it was obtained improperly.

• 33․ The prosecution submits that the officer's use of the body worn cameras was overt due to the placement of the cameras on the police officers' vest at approximately chest height in combination with associated lights and sound.

• 34․ The mere wearing of the body worn camera device on a police officer's chest is insufficient to establish overt use. The item itself is hardly visible, given that it is a dull black item against a dull black background. The presence of light which is not particularly visible during day and a beep on activation may put a member of the public on notice that there is some item of equipment being utilised but the nature of it would not be immediately obvious, particularly to those who have little engagement with the police and are not familiar with the fact that police now frequently use these items of equipment.
• 35․ Further the CPO guidelines make it clear that more than visibility of the item itself is required for its use to be overt. The guidelines require that the use of the item be announced as soon as reasonably practicable, with exceptions not relevant in this case.
• 36․ Constables Forge and Bigmore appear to have been unaware of the detail or even the gist of the CPO's guidelines. Those guidelines had been in place for about 10 months prior to this incident.
• 37․ Further I am satisfied that Constable Forge was consciously trying to elicit information from the defendant by his manner and form of questioning to implicate him in the alleged offence. Despite his protestations to the contrary, he clearly suspected that the defendant was the person subject of the complaint. He was prepared to concede as much in relation to the vehicle. The person is associated with the vehicle. The presentation of the person was consistent with the description given verbally by the complainant and evident in the photographs she had taken and provided to the officer. It was disingenuous of him to suggest that his suspicion arose only after questioning the defendant. That suspicion may have risen to a level of belief thereafter but the suspicion was clearly present from the officer's initial observation of the defendant in the Dickson Aquatic Centre car park next to the suspect motor vehicle.
• 38․ It follows that I am satisfied that the responses given by the defendant to questioning by Constables Forge and Bigmore on 25 November 2022 as captured on the body worn cameras of each of those officers were obtained improperly and in contravention of an Australian law, section 43B of the Surveillance Devices Act.
• 39․ I turn now to consideration of the body worn camera footage of the arrest of the defendant on 1 December 2022. The significance of this footage is that it discloses the presence of a motor vehicle and ladders which look similar to those in the photograph taken by the complainant on 22 November 2022, and the vehicle seen in the Dickson Aquatic Centre closed-circuit television footage of the same date.
• 40․ Again, the defendant was not put on notice as to Constable Forge's use of a body worn camera, contrary to section 43B of the Surveillance Devices Act.
• 41․ In determining the admissibility of this evidence, I turn to a consideration of the mandatory but not exclusive factors detailed in subsection 138(3) of the Evidence Act.
• 42․ Just filming of the defendant provides an opportunity to compare that person's appearance three days after the alleged incident with the appearance of the person captured in the complainant's photograph and description. The defendant's admission to having been in the vicinity a few days prior to his engagement with police on 25 November 2022 circumstantially provide some support for the prosecution case. His statement that he uses ladders in the course of his employment and that it they could be placed on his motor vehicle provides further circumstantial support for the prosecution case. The provision of his mobile phone number assisted in allowing phone records to be obtained, although that information would have been accessible without the defendant's assistance. The contents of the body worn camera recording on 25 November 2022 are of significant, although not compelling, probative value to the prosecution case. The content of the recording on 1 December 2022 is of limited probative value as the motor vehicle had already been associated with the defendant and the presence of ladders in a garage is highly generic.
• 43․ The offence charged, an act of indecency without consent, carries up to 7 years imprisonment on conviction. This is a relatively low level example of such an offence.
• 44․ The contravention is, in my assessment, a significant one. The recording of interactions with others is subject to legislative constraint in recognition of the importance placed upon privacy in our community. The diminution of that right to privacy is subject to clear legislative parameters. In circumstances where a person's right to silence is jeopardised in the face of a potential prosecution, the gravity of the impropriety and contravention is greater.
• 45․ It was urged on the court by the prosecutor that insofar as there may be any finding of impropriety or contravention, the court would be satisfied that it was reckless on the part of both police officers. First Constable Bigmore appears to have simply deferred to the approach taken by Constable Forge as the lead officer in the matter. Neither officer appears to have been familiar with their obligations in respect to the use of body worn cameras. Although both were aware that there were constraints on its use, unfortunately that did not extend to an awareness of the first and simplest of these constraints, namely that their use be overt in circumstances such as arose in this matter.
• 46․ As the manner in which Constable Forge questioned the defendant was clearly aimed at eliciting incriminating information from him the failure to be overt in recording takes on greater significance. Whilst I cannot be satisfied that the impropriety or contravention was intentional, on the part of both officers it is attended by a very high degree of recklessness.
• 47․ The breach is inconsistent with rights recognised by the International Covenant on Civil and Political Rights. Article 14(3)(g) provides that a person has the right not to be compelled to testify against himself or to confess guilt. Article 17(1) provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
• 48․ There is no information before the court to suggest that action has been or is likely to be taken elsewhere in relation to this conduct.
• 49․ The evidence could have been obtained, should he have chosen to give it, from the defendant under caution. Alternatively, evidence of the defendant's involvement in the incident could have been obtained by providing an opportunity for the complainant to make identification of him through a photo board or identification parade process.
• 50․ There is really very little that can be said in support of waiving the impropriety or breach evident in this case. The result of doing so would be to condone a cavalier attitude to police powers for negligible community benefit.
• 51․ I am satisfied on this basis that the undesirability of admitting the body worn camera footage of Constable Bigmore and Constable Forge from 25 November 2022, IPND enquiry and call charge records relating to the defendant's mobile phone number, and body worn camera footage of the defendant's arrest on 1 December 2021 clearly outweighs the desirability of doing so having regard to the way in which was obtained.

• 52․ Consideration of section 138(2)(b) requires a determination as to whether Constable Forge "made a false statement in the course of the questioning even though (he) knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission". The statement relied upon by the defendant is that given in response to the defendant's question as to what the police were doing, that is: "just doing a patrol about; doing a bit of targeting, who's out and about". The statement is equivocal; it is not frank. However, I am not satisfied that I can conclude that it was entirely false. The police were patrolling, albeit that the area was of particular interest because of the recent complaint; and they were looking to ascertain who was "out and about". Constable Forge's attempts to shy away from the fact that he had formed a suspicion that the defendant was a person of interest in cross-examination were unconvincing. His questioning of the defendant presented as a somewhat gauche attempt to elicit recorded admissions, which in itself may be characterised as an impropriety such as is envisaged by section 138(1)(b). However, in light of my finding that the statement made by Constable Forge was not false, this is not a proper basis for exclusion of the relevant evidence. In arriving at this conclusion I have applied the test established in Briginshaw v Briginshaw [1938] HCA 34. See also section 142 of the Evidence Act.
• 53․ The question of whether the defendant was under arrest for the purpose of section 139 (1)(a) of the Evidence Act is difficult to assess without hearing from the defendant in this case. In light of my determination pursuant to section 138, I am not required to determine that issue and decline to do so.

(a) Video footage captured on the body worn camera of First Constable Jack Bigmore relating to a patrol through the Dickson Pool car park on 25 November 2022;

(b) Video footage captured on the body worn camera of Constable Jesse Forge relating to a patrol through the Dickson Pool car park on 25 November 2022;

(c) Video footage captured on the body worn camera of Constable Jesse Forge relating to the arrest of the defendant on 1 December 2022;

(d) Call charge records and the IPND inquiry relating to the defendant's mobile phone number.

I certify that the preceding ninety-one [91] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker.