Police

Recording a private conversation without consent

Technology today is amazing. We have smartphones almost immediately available – they are light, portable and small are often used to record events… but how does that ease and regularity of use sit with an individual’s right to privacy?

In New South Wales, the Surveillance Devices Act 2007 regulates the use of listening devices.  That Act also covers the use of data surveillance, optical surveillance devices and tracking devices. Breaches of the Act can lead to criminal charges.

What is a listening device?

The Act defines a listening device as:

any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear

so it clearly includes mobile phones, GoPros and video cameras.

It is an offence under s.7 to knowingly install, use or cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party or to record a private conversation to which the person is a party.

There are some exceptions to this however, such as if:

  • all principal parties to the private conversation expressly or impliedly consent to its use, or
  • you are a principal party to the private conversation and:
    • it is reasonably necessary to protect your lawful interests; or
    • you do not intend to communicate or publish what was recorded or a report of it to anyone who was not party to the private conversation

The onus of proof for establishing an exception lies on the party seeking to establish the exception, and that onus is on the balance of probabilities.

Law enforcement officials can use listening devices in a range of circumstances including where they have a warrant from a Judge or Magistrate; if they don’t have a warrant but there is a serious or urgent matter requiring its use but not enough time to get a warrant; or where a police officer wearing a visible body worn video device etc.

Even if in Court proceedings, the exception to the rule is not found to apply, it might still (but in certain circumstances only) be possible to have the recording, or evidence based on it such as a transcript of what was said, admitted into evidence under the improperly obtained evidence rules in s.138 of the Evidence Act 1995 (NSW).

What is a private conversation?

A private conversation is conversation where it can be reasonably assumed that those involved in the conversation do not want the conversation to be overheard by others, that is, it is more informal or not public. A private conversation is not private if the people in the conversation can reasonably expect the conversation to be overheard by others.

Penalties

The best course is generally not to record a private conversation without consent unless it is absolutely necessary.

The penalty for individuals for a serious breach of the Act is an $11,000 fine or up to 5 years in prison.

A person who intentionally or recklessly communicates or publishes the contents of a private conversation which could endanger the health or safety of someone, or prejudice an investigation, faces a maximum penalty of 7 years in prison.

For corporations, offences under the Act attract a maximum fine of up to $55,000.

FURTHER INFORMATION

This information is general only and is not a substitute for proper legal advice.

For more information, please contact Craig Pryor at McKillop Legal on (02) 9521 2455 or email craig@mckilloplegal.com.au to discuss your needs.

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When is it legal to drive through a red traffic light?

How many times have you been stuck in traffic only to hear an ambulance or police car’s sirens behind you? What should you do? How can you help? When is it legal to drive through a red traffic light? You don’t want to break the law.

Did you know that the law in NSW allows you to drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle? But only if it is safe to do so. Giving way to emergency vehicles should always be done with the utmost care and with the safety of yourself and all other road users as a priority.

Rule 78 of the NSW Road Rules provides:

“(2)    If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

(3)    This rule applies to the driver despite any other rule of these Rules.”

It is also your duty to “give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm” (Rule 79).

The NSW Road Rules contain the basic rules of the road for motorists, motorcyclists, cyclists, pedestrians, passengers and others

The NSW Road Rules 2014 can be found here

The road rules applicable in NSW are effectively the same as the model rules proposed by the National Transport Commission but has some additional rules, such as Rule 78-1 (introduced in 01 September 2018) that includes:

“(2) A driver must not drive past, at a speed exceeding 40 kilometres per hour, a stationary emergency response vehicle on a road that is displaying a flashing blue or red light.”

Click here to see our previous blogpost on the top 10 misunderstood road rules

FURTHER INFORMATION

This information is general only and is not a substitute for proper legal advice.

If you have a traffic fine or have been charged with an offence we can refer you to an expert solicitor that acts in relation to police matters, please contact Craig Pryor at McKillop Legal on (02) 9521 2455 or email craig@mckilloplegal.com.au to discuss your needs.

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New Drink Driving Laws

From 20 May 2019, a streamlined process that delivers swift penalties will apply to NSW drivers who commit a first-time, lower-range drink-driving offence.

Drivers in New South Wales who commit a lower-range drink-driving offence for the first time will have their licence suspended immediately, effective for 3 months, in addition to receiving a significant fine (which is currently $561).

Similar changes are also being implemented in relation to first-time offences involving drugs and driving.

Drink driving is a serous offence and is reported to be a factor in roughly one in 7 crashes in NSW.

Police breath tests

Police conduct about 5 million breath tests each year in NSW. In NSW, police have the power to:

  • stop drivers at random to test for alcohol
  • arrest drivers who test over the legal limit
  • require a driver to take a sobriety test in certain circumstances
  • breath test any driver or supervising driver involved in a crash

It is an offence to refuse to take a breath test.

It is illegal for you to drink alcohol while you are driving, even if your blood alcohol concentration stays below your legal limit.

What is the legal limit?

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NSW has 3 blood alcohol concentration (BAC) limits: zero, under 0.02 and under 0.05. The BAC limit that applies to you depends on the category of your licence and the type of vehicle you are driving.

Your BAC measures the amount of alcohol you have in your system in grams of alcohol per 100 millilitres of blood. A BAC of 0.05 means you have 0.05 grams (50 milligrams) of alcohol in every 100 millilitres of blood.

It goes without saying, don’t drink and drive.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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Double demerits this long weekend

Double demerits this long weekend – from Midnight tonight, Thursday 27 September to midnight, Monday 1 October

The double demerit point scheme applies for the following types of offences:

  • Speeding
  • Illegal use of mobile phones
  • Not wearing a seatbelt
  • Riding without a helmet

Double Demerits on Easter and ANZAC Day weekends

A reminder to our clients that double demerits apply this Easter long weekend 13-17 April inclusive and again on the ANZAC Day weekend, 21- 25 April inclusive. Drive safely.