Body worn cameras are becoming increasingly common in police investigations.  Whilst one purpose is to achieve accountability for police officers, the video footage may also be used as evidence in criminal prosecutions.  It is therefore important that prosecutors and defence lawyers understand the limitations and admissibility of such evidence.

Body worn cameras are small electronic devices that are attached to a police officer’s person and create audio and visual recordings of events with which the officer is engaged.  Whilst not quite standard issue, BWC are an increasingly essential component of modern policing.  Consistent with advances in technology, the audio and visual records produced by BWC is often of a high technical quality.  Despite privacy implications, there is strong community support for BWC because of their role in ensuring police accountability. Section 609A of the Police Powers and Responsibilities Act Queensland authorises the use of such cameras.

BWC footage can be powerful and high impact evidence.  An enduring concern is that juries may be disproportionately swayed by such evidence, because of its immediacy and apparent objectivity, even if other evidence is contradictory. BWC evidence may not necessarily provide context or tell the whole story.  There is a risk that it may be used by police officers to assist in recalling what actually happened, or to confirm what was not actually observed in real time.

Recognising these limitations, it is imperative that defence lawyers ensure that any BWC is assessed in the context of other evidence in the brief.  If possible, enquires should be made to ascertain if the footage was viewed by police or other witnesses prior to preparing statements.  In the context of a trial, BWC footage should not be repeatedly viewed by the jury.

Another issue is that police officers may use the body worn camera footage as a means of generating a narrative of the evidence.  For instance, police officers may narrate their activities and observations to “highlight” apparently incriminating facts for a future jury. 

There is no one-sized rule of evidence about the admissibility of these out of court, contemporaneous statements.  Whilst such evidence is often hearsay and inadmissible, in some situations contemporaneous statements may nonetheless be admitted through hearsay exceptions.  Much will depend on the content of the statements.

For persons charged with a criminal offence or under investigation by police, it is imperative to understand that there is no such thing as an “off the record” police conversation.  Increasingly all communications with a defendant are being recorded on body cam.  Even if you do not say anything other visual information (such as clothing, demeanour, tone) may be captured and potentially used as evidence against you.

As always, if you are charged with a criminal offence, the best way to protect yourself is to obtain independent, expert legal advice from a criminal law specialist.  Evidence law is its own speciality within criminal law, and we pride ourselves on our in-depth and sophisticated understanding of the laws of evidence.