Body worn camera footage cannot be used in civil proceedings
German v State of Victoria [2020] VCC 1517
Summary
On 25 September 2020, the Victorian County Court held that use of body-worn camera footage (‘BWC footage’) obtained from police, ambulance, prison officers, and other prescribed persons under the Surveillance Devices Act 1999 (Vic) (‘the Act’) cannot be used by courts in civil proceedings.
The Court ruled that section 30E of the Act prevented the State of Victoria from discovering BWC footage in its possession to the plaintiff, despite the footage being relevant to the proceedings. This is because the Act is highly prescriptive in the limited circumstances in which BWC footage can be used. Judge Davis held that these prescribed circumstances cannot be interpreted to include civil proceedings.
Facts
Mr German (‘the plaintiff’) had brought claims of false imprisonment, battery and assault against the State of Victoria (‘the defendant’), alleging that on 30 June 2015, during the Metropolitan Remand Centre protests, prison officers kicked the plaintiff, struck him with a baton, handcuffed and threw him to the ground, and that he was bitten by a Corrections controlled dog. The BWC footage in question was recorded by two prison officers at the location where the plaintiff was on the relevant day.
The defendant had filed and served an Affidavit of Documents that disclosed the existence of BWC footage from the two prison officers relevant to the proceedings. The defendant submitted that it was precluded from releasing the footage in the proceedings, and that to permit inspection of the footage would be a criminal offence under section 30E of the Act.
Background – the Surveillance Devices Act 1999
Section 30E of the Act makes it a criminal offence to use, communicate or publish protected information, in circumstances not prescribed by the Act. BWC footage is ‘protected information’ under the Act. Allowing the plaintiff to inspect the BWC footage as part of the discovery process would constitute a use of the footage.
Section 30F of the Act contains very specific and prescriptive circumstances in which disclosure of ‘local protected information’ is permitted. Permitted uses include training purposes for officers and prescribed persons under the Act, disciplinary matters, criminal and coronial proceedings, and family violence matters. Section 30F(1)(d) includes ‘an investigation or a complaint against, or the conduct of, a public officer within the meaning of this Act or a public officer within the meaning of a corresponding law’. ‘Protected information’ does not apply to any information that has been disclosed in open court.
Submissions
The plaintiff sought access to the footage on two bases:
‘Investigation or a complaint’ pursuant to Section 30F(1)(d) should be construed broadly so as to encompass civil proceedings. The plaintiff argued that ‘investigation’ and ‘complaint’ were not defined in the Act and that it would be inconsistent to allow disclosure of the footage in circumstances of an IBAC or Professional Standards Command complaint, but not in a civil suit in which identical allegations are made on the same facts.
The plaintiff argued in the alternative that the words ‘of a civil proceeding’ should be read into the same provision. The plaintiff submitted that the provision should be effectively read as ‘for an investigation of, or a civil proceeding relating to a complaint against, or the conduct of, a public officer within the meaning of this Act’.
The defendant submitted that the State was prohibited from disclosing the footage in civil proceedings on proper construction of the statute, and that there was no basis for reading ‘civil proceedings’ into section 30F(1)(d).
Decision
Drawing from the principles of statutory interpretation (as established in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 193 CLR 355), Judge Davis noted that in light of the terms ‘investigation’ and ‘complaint’ not being defined, they should be considered in the context in which they appear in the Act.
Judge Davis considered the ‘prescriptive regime’ that the Act provides in terms of ‘the [restricted and limited] circumstances permitting the use, communication or publication of body-worn camera footage’. Her Honour found that the literal and purposive interpretation of that section means that disclosure and inspection is only permitted in the circumstances expressly provided for by the Act. Judge Davis held that, in light of the ‘heavily prescribed nature of the regime’, if the Victorian Parliament had intended disclosure of protected information to the courts in the context of civil proceedings, this would have been expressly stipulated. Her Honour therefore found that the words ‘investigation of a complaint’ cannot be interpreted to include civil proceedings. Her Honour also found that there was no basis to read civil proceedings into the provision.
In her concluding remarks, Judge Davis acknowledged ‘the difficulties which this prohibition may cause for plaintiffs in civil proceedings.’
Commentary and implications
This case creates an inconsistent situation where courts, judges and juries can access BWC footage in criminal matters, but not in civil matters. This means that it would be possible for witnesses to view or be questioned about BWC footage for the purposes of a criminal case, but the parties would be unable to rely on it in a related civil claim. Evidence of potentially great probative value will be denied to Courts, judges, juries and indeed the parties themselves in civil proceedings.
This is in circumstances where footage obtained from other forms of police cameras, such as those contained in police cells, police station lobbies and police vans are routinely disclosed and provided to courts in civil and criminal proceedings.
No other cases have yet interpreted section 30F(1)(d) of the Act, meaning jurisprudence on the issue is scant.
The decision in this case has prompted calls from legal and human rights organisations to amend the Act to clarify that body-worn camera footage obtained from police, ambulance, prison officers, and other prescribed persons may be used in all civil proceedings.
The full case can be read here.
Tracey Yeung is a graduate lawyer on secondment at the Human Rights Law Centre.