By Paul Gregoire and Ugur Nedim
With the advent of smartphones, members of the public have had the ability to film officers of the law as they go about their duties. And on the occasions that citizens capture them behaving in a questionable manner, these video clips invariably end up being shared on social media platforms.
Often, the footage will show an officer turn towards the person with the phone and order them to stop filming, explaining that they’re not allowed to. However, these officers are wrong, as there are no laws in NSW preventing civilians from filming or photographing police officers – whether they’re out and about on patrol, at a concert, festival, bar, club, shopping centre, sports ground, park, on the beach, in a restaurant or store, or anywhere else members of the public are permitted to enter.
So, in a situation where, say, a police officer asserts that they have a reasonable suspicion to conduct a pat down search on your companion, you’re well within your rights to pull out your phone and visually document the incident.
However, it’s important to stand out of an officer’s way, so as not to prevent them from doing their duty. Otherwise, you could be charged with hindering police under section 546C of the Crimes Act 1900 (NSW), an offence that carries a maximum penalty of 12 months imprisonment, and/or a fine of $1,100.
The force on filming
The NSW Police Media Policy acknowledges that members of the public “have the right to take photographs of or film police officers, and incidents involving police officers, which are observable from a public space, or from a privately owned place with the consent of the owner/occupier”.
The document further details that under these circumstances an officer doesn’t have the power to prevent filming or the taking of photographs, nor can they confiscate photographic equipment, delete images or recordings, or order the person who’s taken footage or photos to delete them.
If an officer does try to confiscate equipment, interfere with filming, or demand something is deleted, then they can face prosecution for assault or trespass against a person. However, there are two sets of circumstances when officers can prevent filming, delete images or confiscate equipment.
The first relates to when they’re exercising special powers provided under certain anti-terrorism legislation. And the other set of circumstances is when the filming or taking of photos amounts to offensive conduct that’s forbidden under the provisions of the Summary Offences Act 1988 (NSW).
Within your rights
Even if you feel somewhat uncomfortable about filming police in a situation where they were searching your companion, it’s often a good idea, as such footage can be used as evidence to support a complaint against police or defend a person against a criminal offence.
But, if you do happen to capture a serious crime being committed on your camera phone, be mindful that police may seize it, as there’s a common law principle that asserts that an item can be confiscated if it can be used as evidence, even if the person in its possession is not a suspect.
So, rest assured that if you are out and about, and there’s a reason that you think you should be filming a NSW police officer, you’re completely within your rights to do so – just be careful to stay out of their way.
Is this application of a common law principle, which asserts police can confiscate your phone as evidence valid when only after a search contravening a persons rights under common law can said existence of evidence be proven.
Is this application of a common law principle, which asserts police can confiscate your phone as evidence valid. I would have thought that only after a search of the phone which without reasonable grounds & is in itself contravening a persons rights under common law. I would have thought if you had not committed or suspected of having committed an offence the search would lack said reasonable grounds, only after such a search could existence of said evidence be proven & the confiscation therefore justified.