Friday, 30 October 2009

Going digital

During this last year the Victorian Police Force switched from using cassette tapes for recording its interviews to modern digital technology.

Along with the new technology has come new regulation of it, in the form of amendment to s 464H and the creation of new ss 464JA - JD of the Crimes Act 1958. These provisions are inserted into the Crimes Act by ss 3 and 4 of the Justice Legislation Miscellaneous Amendments Bill 2009, which had its second reading on the 15th October and is expected to receive Assent early next year. The Explanatory Memorandum can be found here.

As the new units record pictures as well as sound, the new legislation clarifies that an accused is entitled to the audio within 7 days of the interview and is entitled to a copy of the vision within 7 days of being charged.

The Bill also seeks, in a fairly draconian way, to ensure the contents of the recordings are not distributed beyond those who have a legitimate interest in them. Sub-section 464JA(2) will create an offence for possession of a recording produced under ss 464B(5A), 464G or 464H.

(2) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—
(a) is the suspect; or
(b) is a legal practitioner representing the suspect; or
(c) is an authorised person acting in the performance of his or her duties; or
(d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.
Penalty: Level 8 imprisonment (1 year maximum).

An authorised person at (c) includes lawyers, courts, police and so on. Sub-section (3) creates an offence with the same penalty for playing the recording to anyone who is not in one of those categories or for an appropriate purpose.

This means that if a person has been interviewed by the police and on their release from custody their family would like to listen to the recording of what was said, they can't, regardless of what the accused wants. It's also not clear what the position of professionals acting on behalf of the accused would be. (Many expert opinions from psychologists and psychiatrists rely upon material contained in the police interview to form their conclusions).

Under s 464JA(1)(p) it states that a prescribed class of person may also possess the recording, but it's not known who will be in this category as the regulations are yet to be finalised.

The new law will also require that all recordings be kept by the police for a minimum of 7 years.


Kyle said...

Parliament's Scrutiny of Acts and Regulations Committee produces regular digests of Bills before Parliament.

One if its roles is to monitor human rights compliance of new Bills.

This Bill was just reviewed in Digest 13 of 2009.

SARC commented that the proposed provisions justifiably limited freedom of expression, but noted concerns that accused people can only give their interview recordings to their lawyer, but not to friends, witnesses (especially experts) or colleagues for advice.

SARC also noted s 464JA(4) may interfere with the obligations of police and prosecutors to
disclose relevant recordings to criminal defendants other than the interviewee.

SARC went on to discuss a few other possible problems, so it may well be that the final form of these provisions will be quite different from what's proposed in the Bill.

Jeremy Gans said...

The bill has now passed, with no substantive amendments.

However, government floor amendments have delayed the commencement of the new offences, potentially until November next year. The stated reason is to allow time to train the fisheries enforcement office(!)