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20-02-2011, 10:25pm
I've lifted this straight from another forum in regard to the police pulling you over making you remove your helmet and taking your pic. Very interesting I thought...................
Below is a post from Paul Kuhn the director of FreeAustralia.org and I thought it might be interesting for others to read. Found it when researching the subject on hdforums.com.au
"technically speaking they cannot FORCE you to pose for a photo or place you in a given position for a photo or anything like that unless they have charged you with an offence and you are under arrest or unless they can cite a proper authority that says you must comply.
At this point in time, until you are charged, you "enjoy" your freedoms and they are unable to make direction as to restrictions on that freedom. As always, there are exceptions, such as directions to ensuring you are safe, (say, from oncoming traffic - please step back, sir) or in the investigation of an INDICTABLE offence.
{Definition: Indictable. Trial by jury! Varies from state to state, in SA it is an offence which allows for the automatic trial by JURY, in SA, that is any offence that attracts a maximum prison sentence of MORE than 5 years. I think in NSW that is just 2 years.}
However, be aware that they are entitled, as are you, to take photos in general. If you happen to be in that photo, then they have not committed an offence, nor do they require permission. The difference between us and them in taking that photo is that (in NSW) Sec60C could apply so you may not be able to take a photo of them..
The next question becomes: Can they make you remove your helmet, sunglasses or anything obstructing their record. In a nutshell, NO. Until the moment you are arrested you enjoy your liberty and are not "under their control". However, if there is a relevant Act that says the motorcyclist MUST remove his helmet then that Act and Section MUST be cited by the officer making the request.
Again, as I mentioned, you have every reasonable expectation to know under what authority they make such a request and if they fail to provide that, then they are actually in breach of duty. Or if they say something like "Because I said so", then again they are not acting within the law.
However, this can be used in your favour! If, for example, you are told "Take of your facemask. Why? Because I am a police officer and I said so". You then say something along the lines that you do not agree but because you are being intimidated, feel threatened, or are just a compliant sort of chap, you do NOT AGREE but will COMPLY.
If you are subsequently charged with ANYTHING, then the magistrate MUST dismiss the charge because the police officer acted "ultra vires" (which means: beyond his authority) and issued an order that you did not have to comply with (you showed your disapproval at the time) and he acted improperly in the perfromance of his duty. This next part is very important.
All that follows is then inadmissible as the police officer did not act within the legal procedures!
Therefore, if you are ordered to make clear for a photograph and the police do not say under what authority they are acting, then all that follows is not valid if you do not agree. Next bit is also important...!!
But if you AGREE to his illegal request (he did not cite the proper authority for him to make that order) then all that follows stands (IS admissible).
Cops are trained to give directions that,um, "force" you to agree by default. So be very careful with this.
For example. Do you have a reason as to why you were exceeding the speed limit?
If you answer, Yes, I have a reason... blah blah.. You just admitted speeding.
If you answer, No, I do not have a reason... then you just admitted speeding.
If you answer, Maybe.. blah blah, you just admitted speeding.
What they are doing is to get your agreement that you were indeed speeding. Then there is no further argument in court because you gave acknowledgment that you were indeed speeding! Doesn't matter what else was said or happens, you admitted it freshly pulled over. (That's why it is usually the first question put to you.)
{ you probably want to know then, what IS the right answer? Something along the lines of:
- No comment
- That appears to be your opinion officer..
- My name is....
- I live at ...
etc. None of those address the question directly. He CANNOT force an admission from you. I'd love then to try..!}
So the same idea applies with these pictures they wish to take. Do not give them permission when they do not cite a proper authority! (or you are not under arrest.)
Just remember, you do not have to give permission if they want to take pictures. But they DO need your permission for you to remove helmet, sunglasses etc if you are not under arrest or they cannot or will not cite an appropriate authority under which they have jurisdiction!
If of course you find yourself intimidated by 10 burly cops standing in a circle around you as an individual, then you have the defence that you complied out of fear. Then all that follows is not admissible either as long as you establish that fear.. That's why getting a good written record of what was said by whom is very important.
Also, another good thing is, obviously we all do not know the law, so they could easily cite some obscure traffic Act. Wonderful. That's what lawyers are for. If he is shown to be misusing the law he goes for all sorts and you get off probably with costs and damages to boot! Another good reason to ensure you remember everything that was said.
OK.
So yes, they can take photos as they please.
Can they direct you with regards to taking those photos? No. Only if you are under arrest.
Are you obliged to agree to remove helmets etc? No. Only if you are under arrest OR the relevant Act says you must (then of course that Act and section MUST be cited)
Any arrest made without citation is illegal - that is called arbitrary arrest and ANY judge will throw it out of court.
My advice overall? Be careful. Make records. Comply but do not agree with anything. Sort it out in court, either on contesting the charge or as an administertive appeal (legal challenge). Never argue with a smarmy cop, sort him out in court. Always go for costs and exemplary damages. Sometimes the BEST course of action is to keep your mouth SHUT!! As hard as that maybe.. (I have that trouble.) then follow it up in court."
Below is a post from Paul Kuhn the director of FreeAustralia.org and I thought it might be interesting for others to read. Found it when researching the subject on hdforums.com.au
"technically speaking they cannot FORCE you to pose for a photo or place you in a given position for a photo or anything like that unless they have charged you with an offence and you are under arrest or unless they can cite a proper authority that says you must comply.
At this point in time, until you are charged, you "enjoy" your freedoms and they are unable to make direction as to restrictions on that freedom. As always, there are exceptions, such as directions to ensuring you are safe, (say, from oncoming traffic - please step back, sir) or in the investigation of an INDICTABLE offence.
{Definition: Indictable. Trial by jury! Varies from state to state, in SA it is an offence which allows for the automatic trial by JURY, in SA, that is any offence that attracts a maximum prison sentence of MORE than 5 years. I think in NSW that is just 2 years.}
However, be aware that they are entitled, as are you, to take photos in general. If you happen to be in that photo, then they have not committed an offence, nor do they require permission. The difference between us and them in taking that photo is that (in NSW) Sec60C could apply so you may not be able to take a photo of them..
The next question becomes: Can they make you remove your helmet, sunglasses or anything obstructing their record. In a nutshell, NO. Until the moment you are arrested you enjoy your liberty and are not "under their control". However, if there is a relevant Act that says the motorcyclist MUST remove his helmet then that Act and Section MUST be cited by the officer making the request.
Again, as I mentioned, you have every reasonable expectation to know under what authority they make such a request and if they fail to provide that, then they are actually in breach of duty. Or if they say something like "Because I said so", then again they are not acting within the law.
However, this can be used in your favour! If, for example, you are told "Take of your facemask. Why? Because I am a police officer and I said so". You then say something along the lines that you do not agree but because you are being intimidated, feel threatened, or are just a compliant sort of chap, you do NOT AGREE but will COMPLY.
If you are subsequently charged with ANYTHING, then the magistrate MUST dismiss the charge because the police officer acted "ultra vires" (which means: beyond his authority) and issued an order that you did not have to comply with (you showed your disapproval at the time) and he acted improperly in the perfromance of his duty. This next part is very important.
All that follows is then inadmissible as the police officer did not act within the legal procedures!
Therefore, if you are ordered to make clear for a photograph and the police do not say under what authority they are acting, then all that follows is not valid if you do not agree. Next bit is also important...!!
But if you AGREE to his illegal request (he did not cite the proper authority for him to make that order) then all that follows stands (IS admissible).
Cops are trained to give directions that,um, "force" you to agree by default. So be very careful with this.
For example. Do you have a reason as to why you were exceeding the speed limit?
If you answer, Yes, I have a reason... blah blah.. You just admitted speeding.
If you answer, No, I do not have a reason... then you just admitted speeding.
If you answer, Maybe.. blah blah, you just admitted speeding.
What they are doing is to get your agreement that you were indeed speeding. Then there is no further argument in court because you gave acknowledgment that you were indeed speeding! Doesn't matter what else was said or happens, you admitted it freshly pulled over. (That's why it is usually the first question put to you.)
{ you probably want to know then, what IS the right answer? Something along the lines of:
- No comment
- That appears to be your opinion officer..
- My name is....
- I live at ...
etc. None of those address the question directly. He CANNOT force an admission from you. I'd love then to try..!}
So the same idea applies with these pictures they wish to take. Do not give them permission when they do not cite a proper authority! (or you are not under arrest.)
Just remember, you do not have to give permission if they want to take pictures. But they DO need your permission for you to remove helmet, sunglasses etc if you are not under arrest or they cannot or will not cite an appropriate authority under which they have jurisdiction!
If of course you find yourself intimidated by 10 burly cops standing in a circle around you as an individual, then you have the defence that you complied out of fear. Then all that follows is not admissible either as long as you establish that fear.. That's why getting a good written record of what was said by whom is very important.
Also, another good thing is, obviously we all do not know the law, so they could easily cite some obscure traffic Act. Wonderful. That's what lawyers are for. If he is shown to be misusing the law he goes for all sorts and you get off probably with costs and damages to boot! Another good reason to ensure you remember everything that was said.
OK.
So yes, they can take photos as they please.
Can they direct you with regards to taking those photos? No. Only if you are under arrest.
Are you obliged to agree to remove helmets etc? No. Only if you are under arrest OR the relevant Act says you must (then of course that Act and section MUST be cited)
Any arrest made without citation is illegal - that is called arbitrary arrest and ANY judge will throw it out of court.
My advice overall? Be careful. Make records. Comply but do not agree with anything. Sort it out in court, either on contesting the charge or as an administertive appeal (legal challenge). Never argue with a smarmy cop, sort him out in court. Always go for costs and exemplary damages. Sometimes the BEST course of action is to keep your mouth SHUT!! As hard as that maybe.. (I have that trouble.) then follow it up in court."