CCTV cameras seem to be everywhere these days – in the streets, on public transport, in pubs, clubs and even restaurants and take-away stores.
When public safety is weighed up against privacy, finding a compromise can be difficult.
But what if CCTV footage is not all that it is cracked up to be?
The NSW police service does not fund or operate CCTV cameras, despite relying heavily upon the footage when investigating a range of alleged offences.
CCTV has been instrumental in solving a large numbers of crimes.
A recent example is that of the two brothers accused of assaulting another man on board a Sydney train, who were caught on camera.
The 48-year-old victim had attempted to intervene when he saw the two men yelling at a woman.
He asked the pair to calm down but was instead viciously attacked.
Images of the pair at Sydney Central Station after they ran off the train led to the men coming forward and turning themselves in.
The footage went viral after police posted the images of the men on their Facebook page, reaching 180,000 people.
The police stated that this was why the first man handed himself in to police, with his brother surrendering soon after.
Photographic or video evidence is often seen as infallible – either damning or exonerating suspects.
However, it can have it’s problems.
There are many different types of CCTV cameras and image quality can vary greatly.
Some cameras record still frames at intermittent times; for example, they may take a photo every second or half-second which can miss vital parts of an incident.
Many cameras still record in black and white, and most do not record sound – which can present problems of it’s own.
Poor quality images can be problematic from the perspective of both the defence and prosecution.
From a prosecution point of view, cameras that take pictures at intermittent times may fail to pick up an offending act eg a punch or kick. The the defence will often be able to rely upon this omission to establish ‘reasonable doubt’ regarding the commission of the act.
From a defence perspective, such footage may omit defensive movements by the defendant or aggressive actions by the complainant.
Furthermore, prosecutors will sometimes engage expensive experts to identify suspects from blurry footage using facial and body mapping techniques.
Such ‘expert evidence’ may be difficult to overcome, especially if a defendant cannot afford the extra thousands of dollars for a report of their own.
And how accurate can ‘facial mapping’ really be if the image is poor or the person featured is wearing a disguise?
Some say that such ‘expert opinions’ are just as prone to error as traditional eye witness testimony.
In Scotland, William Mills was wrongfully convicted on the basis of CCTV images which showed a man wearing sunglasses and a scarf over his mouth.
Police identified Mills as the man in the video, and eye witnesses picked him out during an identity parade.
Mills was found guilty despite continuing to proclaim his innocence and declaring he had lost faith in the justice system.
But he was ultimately released when it was found that he was not the bank robber at all.
This is just one example of the problems with identification evidence – whether by way of CCTV footage, eye-witness testimony or facial mapping.
If you have been charged with an offence and plead not guilty, police must give you the information they intend to use against you – including any copies of CCTV footage, witness statements and/or expert evidence.
It is very important for your lawyer to carefully review that material for accuracy and reliability, and to be able to engage experts where necessary.
It is not unknown for police to be difficult when it comes to supplying CCTV footage.
In one example, police told a criminal defence lawyer in Sydney that they would not supply the footage to him.
Instead, the lawyer was told that the footage could be viewed only from the police station, which meant that he would be forced to travel from Sydney to Queanbeyan Police station just to see the video.
This would represent significant costs and resources on the part of the defendant.
Furthermore, police did not explain why they could not (or would not) give a copy to the defence.
In this case, the lawyer intended to make an application to get the footage released before police eventually gave him a copy.
Accessing materials such as CCTV footage can be achieved through serving a ‘subpoena’ to police, or to any other relevant person or body.
I had a case in Newtown Local Court some years ago where police initially refused to serve the CCTV of my client allegedly assaulting his girlfriend in a Newtown Hotel.
I then served a subpoena upon police, but they still refused to serve the footage.
I then asked the Magistrate to order the Officer in Charge to attend court and explain why he had not served the footage.
The Magistrate granted my application and ordered the officer’s personal attendance.
Police then gave me a copy of the footage on the morning the officer was scheduled to attend court.
Low and behold, the footage showed my client’s partner slapping him and then kneeing him in the ‘family jewels’, after which my client pushed her away and was accosted by several large security officers.
The case was ultimately thrown out of court and police were ordered to pay my client’s legal costs for not properly examining the footage and for not serving it upon me in a timely manner.
These examples show that lawyers should be persistent when dealing with police – and should certainly not shy away from serving subpoenae upon them and, if police fail to comply, seeking court orders that they personally attend court to explain why.
If you are facing criminal charges, it is a good idea to speak to a criminal defence lawyer who can gain access to all relevant materials in your case and, in many instances, have your case withdrawn or thrown out of court.
They may even be able to force police to pay your legal costs in certain cases.