Collecting evidence
After an incident of police or PSO misconduct, you should collect evidence straight away to make sure your version of events is as credible as possible.
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There are several ways to collect evidence of an incident of police and PSO misconduct:
Make a record of the event:
If you do not lodge a complaint about the police or PSO misconduct straight away, make a detailed record (in writing or as an audio recording) as soon as possible after the incident. Include everything you remember in as much detail as you can. Important details include the place and time that the misconduct occurred and the name, rank or station of officer(s) involved. If you record a conversation, use the actual words spoken, in the ‘I said’, ‘they said’ style.
If you record the incident in writing, sign and date what you have written and, if you can, get someone else to witness this.
Try to record or photograph the names, ranks and badge numbers of the police officer(s) or PSOs involved in the incident.
It is useful to describe in detail the appearance of anyone involved in the incident. This can make a big difference later when it is not always easy to identify who did what and who was present.
Make a note of witnesses:
Write down the names, contact details and descriptions of anyone who witnessed the incident and encourage them to write down what they saw.
If the incident of police or PSO misconduct occurred while you were in police custody, you should make a note of who saw you immediately before you went into custody and who saw you immediately afterwards; these people can corroborate that you did not have the injuries before you went into police custody and that you did have the injuries straight after you left police custody. Get these people to write an account of what they remember.
Preserve CCTV or other surveillance footage (including from body worn cameras (BWCs)):
Businesses, car parks and some councils have CCTV cameras that may have recorded the incident. CCTV footage is usually deleted after a short period of time (from 24 hours to 28 days).
You can ask for a copy of the CCTV footage from the relevant business. If they won’t give you a copy, tell them the footage might be used as evidence and ask them to preserve the footage. Your lawyer should be able to access the footage at a later time.
In Victoria, there are CCTV cameras in most parts of police stations (including the lobby and cells). Additionally, all metropolitan railway stations have CCTV cameras, and many train carriages are equipped with CCTV cameras. Some trams and buses also have CCTV. There are also cameras in some police vehicles, and many police officers wear BWCs (See ‘Body worn cameras’, below.) You can ask Victoria Police or Public Transport Victoria for a copy of the relevant CCTV footage – although, it is often difficult to obtain this footage under freedom of information laws. When requesting the footage (in writing, such as by email), it is important that you tell Victoria Police or Public Transport Victoria that the footage may be used as evidence; it is also important to ask for the footage to be preserved.
Get photographs of any injuries:
Get photographs of your injuries straight away after the incident and a few days later when the bruises have come out. Make sure the photographs are focused and in perspective. IBAC or the PSC can arrange for a photographer to take photos of your injuries (for IBAC’s and the PSC’s contact details, see ‘Contacts’ at the end of this chapter).
Get a medical record of any injuries:
Visit a doctor and show them your injuries. Try to make sure the doctor records all your injuries.
If you contact IBAC or the PSC straight away after the incident, they can arrange for a Forensic Medical Officer (FMO) to examine you. FMOs are doctors from the Victorian Institute of Forensic Medicine who specialise in examining injuries. Community legal centres can also help you find a FMO (see Chapter 2.3: Legal services that can help).
Keep a record of your expenses:
Keep a record of, and receipts for, any money you spend because of police misconduct (e.g. the cost of pain medication, or ambulance fees).
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The majority of Victorian police officers and PSOs wear BWCs. In late 2018, the Victorian Government decided to roll-out BWCs across Victoria’s police force. A BWC looks like a small black box with a lens and a red light in the middle. A BWC is usually attached to a police officer or PSO’s vest, somewhere on their chest or torso.
BWCs are highly controversial as there are no legislative provisions about when the cameras should be turned on, or what the penalties are for police officers who fail to turn on their BWC.
There are also no legislative provisions for how long footage from BWCs should be kept. However, such footage is usually only retained for 90 days unless it is related to a current investigation or criminal proceeding.
If you have had an encounter with police officers or PSOs (particularly in a family violence situation), be aware that there is high chance that one of the officers was wearing a BWC.
Considering that footage from BWCs is usually only kept for 90 days, if you have had an encounter with police officers or PSOs that you think may have been filmed by a BWC, you should immediately send a letter or email to the PSC, requesting that the BWC footage of the incident be kept. Also ask to be sent a copy of the footage. You can also arrange to view relevant BWC footage at the nearest police station. If you are not permitted to do so, you should be told the reason that you cannot view the footage.
If you are charged with a criminal offence, any BWC footage should be given to you with the brief of evidence. If it is not, you or your lawyer should ask for a copy of the footage.
Prior to the introduction of legislation in December 2021, footage from BWCs was prohibited from being shared or used in many circumstances, including civil claims for compensation pursuant to the Surveillance Devices Act 1999 (Vic). Fortunately, the Victorian Government introduced changes to the Surveillance
Devices Regulations 2016 (Vic) in 2021 and, accordingly, BWC footage from police officers, PSOs and prison officers can now be used in:
a civil proceeding in which—
(a) a Victoria Police/the employer of a person referred to as a prescribed person in regulation 10(1) or the State is a party; or
(b) a police officer/PSO/person referred to as a prescribed person in regulation 10(1) is called, or has been called, as a witness;
It is important to note that a ‘civil proceeding’ is not defined in the regulations and that there are still significant penalties for the unlawful disclosure of BWC footage. Care should be taken when disclosing BWC footage to a third party; legal advice should always be sought before such disclosures are made (see Chapter 2.3: Legal services that can help).
Collecting evidence
Chapter: 12.4: Complaints against Victoria Police
Contributor: Jeremy King, Principal, Robinson Gill Lawyers; Accredited Personal Injury Specialist; Nick Boag, Teaching Associate & PhD candidate, Faculty of Law, Monash University; and Ella Keogh, Lawyer, Robinson Gill Lawyers
Current as of: 1 September 2024
Law Handbook Page: 1034
Next Section: Deciding whether or not to lodge a complaint
