The letter highlighted the growing issue presenting itself in the Victorian civil courts - and warned that, in the absence of any reform, the Act was likely to continue to deliver grave miscarriages of justice.
Access to justice
One of the main concerns raised was that the law was preventing access to justice for the people of Victoria. There would inevitably be more cases in which footage from body-worn cameras would be critical in either vindicating or disproving allegations of misconduct. This was not only of value to plaintiffs - it was also essential to allow police officers to defend themselves against spurious claims.
An inconsistent law
The letter also highlighted the inconsistency of the legal framework as it stood at the time. As well as allowing the use of body camera footage in police training, and criminal and disciplinary proceedings, it was also permitted in the “investigation of complaints” against officers - which included IBAC, professional standards, and ombudsman complaints. It simply did not make sense to exclude civil claims (arguably the complaints jurisdiction with the most teeth) from this definition.
With footage from other surveillance methods routinely disclosed in the Courts, it was also pointed out that, under the current law, it would be entirely possible for abuse to be captured partly by CCTV (which was admissible) and partly by a body-worn camera (which was not). In this situation, the Court would only be able to view half of the relevant evidence. Because body cameras are usually the only type of surveillance to record audio, the chances were even higher that critical information would be missed.
Road trauma survivors
Finally, Robinson Gill warned the attorney-general that the consequences of this loophole went far beyond police misconduct claims. Because body cameras are also often worn by ambulance and police officers attending road traffic accidents, they frequently capture evidence that later becomes crucial in reconstructing a timeline of events.
If this material was kept out of court, there was a real risk that survivors would be denied the compensation that they were entitled to - all because of a technicality.
Ushering in a change
The attorney general responded swiftly to the issues raised, acknowledging the lack of clarity in the law and the importance of access to evidence in the civil courts. As a result of the team’s efforts, the law was finally changed at the start of 2022. Footage from body-worn cameras is now admissible in all civil proceedings, including in the Victorian Civil and Administrative Tribunal, Victims of Crime Assistance Tribunal, and in child protection and personal safety intervention order cases.
The implications for victims of police misconduct are expected to be considerable. The Robinson Gill team are already acting in the first test case since the change in the law, representing a St Kilda man who was wrongfully and brutally arrested at gunpoint. It remains to be seen whether the new legislation will restore balance - but the team are hopeful that, this time, the technology will fulfil its intended purpose, and deliver real accountability within the criminal justice system of Victoria.
“Body-worn camera footage can be a crucial piece of evidence to hold those who do the wrong thing to account and exonerate the innocent [...] when things do go wrong, everybody should be able to access the evidence they need to get justice, regardless of what sort of legal action they are a party to.” - Jaclyn Symes, Attorney General