After an incident of police misconduct, you should collect evidence straightaway to make sure your version of events is as credible as possible.
How to collect evidence
There are several ways to collect evidence of an incident of police misconduct:
1 Make a record of the event
If you do not lodge a complaint about the police misconduct straightaway, 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. If you record a conversation, use the actual words spoken, in the ‘I said’, ‘he 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 officers 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.
2 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 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 the police. Get these people to write an account of what they remember.
3 Preserve CCTV or other surveillance footage (including from body worn cameras)
Businesses, car parks, train stations 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 14 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 cells). There are also cameras in some police vehicles, and many police officers wear body worn cameras. (See ‘Body worn cameras’, below.) You can ask Victoria Police 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 (that the footage may be used as evidence; it is also important to ask for the footage to be preserved.
4 Get photographs of any injuries
Get photographs of your injuries straightaway 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).
5 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 straightaway 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 2.4: Legal services that can help).
6 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).
Body worn cameras
The majority of Victorian police officers wear ‘body worn cameras’ (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 dot in the middle. A BWC is usually attached to a police officer’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 camera.
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 (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 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.
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.
Note that footage from BWCs is prohibited from being shared or used in many circumstances. These circumstances currently include civil claims for compensation, pursuant to the Surveillance Devices Act 1999 (Vic).
However, the Victorian Government has publicly stated that it is reviewing this law. Therefore, it may be possible in the future to obtain and use BWC footage in civil proceedings. If you are aware of the existence of BWC footage, ask your criminal lawyer to obtain a copy and retain it on your files so the footage can be used if the law changes.