The worst thing that motorists can do is to make the fatal mistake of talking to police, because that is the best way to get themselves convicted. For instance, police are trained to ask certain questions in order to get motorists to make admissions that they were speeding, such as, "Do you know how fast you were going?" Motorists hit with this question may volunteer a speed that might be a few kph over the limit, thinking that cops might let them off if they admit this and appear contrite.
The other way cops entrap motorists into making admissions is to say to them something like, "I measured you driving at 68 kph in this 60 kph zone." Motorists may blurt out a response such as, "I wasn't doing 68 kph - I was only doing 64 kph.
In both of those scenarios, those motorists have made verbal admissions that they were indeed exceeding the speed limit and the cops don't even need to present evidence from their speed guns that could otherwise be disputed. They have those admissions, which are usually recorded by the cops on video and audio, so the motorists have no hope of beating the infringements. They may have stood a chance if they made no admissions and took the matters to court and proved that the speed measuring devices were inaccurate or defective, but once they admitted that they were speeding, they had convicted themselves out of their own mouths.
So the best way to deal with police under any circumstances is to simply not talk to them at all and never make admissions about anything. Just shut the hell up. Treat the police as your enemy captors and consider yourself a prisoner of war. Name, rank and serial number - in your case, your name, show them your driver's licence and nothing else. You are not obliged to answer any questions whatsoever, no matter what the police say or threaten. Of course most mobile phones can record video and every motorist should video record every encounter with police in order to have hard evidence of the incident, along with the data from a car black box recorder.
Nobody can force a person to admit to anything, make statements or provide anything. According to some court precedents, police do not even have the right to stop anybody for any reason if they are not under arrest. Police cannot search anybody unless they have reasonable cause to suspect that a crime may have been committed. People who have nothing to hide may consider that allowing police to search them or their cars or premises may be reasonable, but this is a colossal mistake. Allowing police to make such searches may uncover something that people don't want police to see and may lead to them being charged with offences completely unrelated to the purpose of the original search.
Here is the definitive proof that Australians have the legal right to silence. It states so in black and white in a reply to a letter that CARR sent to the Australian Attorney-General.
However, the Attorney-General is wrong with a couple of statements in the letter, because he is claiming that the right to silence is not absolute. But there are a number of higher court rulings and precedents that establish this right to silence. For instance, the Attorney-General states that a cop can demand that a person identify himself if the the cop believes - ON REASONABLE GROUNDS - that the person has committed or is about to commit a crime.
This is a purely subjective guess on the cop's part and unless the cop can show a court that the person who he questioned was actually doing something wrong, then he doesn't have a leg to stand on if he demands identification from that person. Of course if the cop did see somebody doing something wrong or committing a crime, then he should have arrested the person and only then would he have the right to demand identification.
If a citizen has the right to silence, unless he is placed under arrest, refusal to identify himself to anybody cannot be a crime, because that person is exercising his legal right to silence. A person does not even have to stop for police if he is not under arrest and this has been established in the well-known court precedents of Regina v. Banner (1970) VR 240, at p 249, the Full Bench of the Northern Territory Supreme Court, Judge Stephen Kaye Ė Melbourne Supreme Court ruling - 25 November 2011 and Magistrate Duncan Reynolds - Melbourne - July 2013. None of these rulings have been overturned on appeal.
CARR has found that responses to letters sent to government have often been replied to with wrong information, so until CARR is shown otherwise, it can be assumed with some safety that we all have the right to silence in all circumstances and the best thing to do is to never talk to police, never admit anything and in fact if you are stopped by police, simply refuse to give them any information, because you will never know when the things that you say to cops will come back to bite you.
Incidentally, what prompted CARR to write the letter to the Attorney-General was a news report where a person was charged with refusing to provide the decryption password to files on his computer. It was in relation to an alleged terrorist offence, but the offender was prosecuted for this refusal. CARR considered that regardless of the allegation, a person has the right to refuse to provide anything that may tend to incriminate him and that is a very important legal and civil right, as it is an integral part of a person's right to silence. So if you refuse to reveal any passwords, whether they be to your computer, your email account or anything else, you should always invoke your civil and legal rights and never waver, no matter what threats are made against you.
Various state governments have announced that police will be equipped with body cameras, in order to gather hard evidence. But can citizens trust that those cops will not tamper or erase their video clips in the event that they do something unlawful? Of course not. The Police Integrity Commission has prosecuted a litany of rogue cops who have tampered with evidence and many other serious crimes. So it is incumbent upon citizens to gather their own hard evidence in every police encounter. The means of gathering this evidence is generally in the pockets of most people and it is called the smartphone.
The modern smartphone is one of the best weapons in a motorist's arsenal because it has a built-in camera that will record video and audio. Every motorist who is pulled over by cops should immediately record the entire encounter in order to deter police from inventing false pretexts to search a motorist, his car or anything else. Motorists are legally entitled to record whatever they want in public, such as on a road and should never be intimidated by police into stopping recording them, whether the motorists have been pulled up by cops when driving or even if cops come up to them in the street and try to interrogate them.
Police have been known to demand that motorists allow them to examine their mobile phones. Motorists should never ever accede to police demands to examine their mobile phones under any circumstances. Their mobile phones should be secured with a passcode that is programmed to erase the phone's content if more than a few wrong attempts are made to unlock the phone. If motorists are placed under arrest and ordered to hand over their mobile phones, they should immediately switch them off before doing so and refuse to reveal the passcodes under any circumstances.
Apart from having a witness who is observing and recording an encounter with police, the most useful form of protection for a motorist is the car black box recorder. This device will prove exactly what speed a motorist was driving at, a GPS position logging where he was at the time, what happened in front of his car on video and audio from inside his car. This real-time data is the best weapon in challenging unjustified bookings and is the best way a motorist can prove exactly what happened in an accident involving him.
The current regime of breath and blood alcohol testing raises the issue of self-incrimination. The Internet is full of reports of cases where people uphold their right to refuse to provide any material that may tend to incriminate them, but here is a definitive statement from the Australian Government Law Reform Commission:
The High Court of Australia has declared that it is a fundamental principle that the prosecution cannot compel the accused to assist it in any way. This ruling can be considered to flow down to matters such as police roadside stops, where a police officer may demand that a motorist produce a breath sample or make an admission that he had alcoholic beverages that day. If the High Court declaration can be taken at face value, then a motorist has the right to silence and also the right to refuse to provide anything that may tend to incriminate him, regardless of state laws that allegedly compel him to provide such material. Fundamental principles of law cannot be abrogated willy-nilly by the passing of local statutory laws.
There are many such references and motorists should stand up for their legal rights in this regard. If the Australian Government Law Reform Commission is to be believed, people are legally entitled to refuse to provide any document, but one can ask - what is the difference between a document and any other object in that person's possession that may tend to incriminate them? Why should a breath or blood sample be treated any differently from a piece of paper or a book or magazine? One could logically argue that a person has the right to refuse to produce anything that may tend to incriminate them, which would include:
There are statutory laws in NSW that compel motorists to submit to breath and blood alcohol testing if required and there are penalties if they refuse to do so. The issue is whether being coerced into submitting to such testing by the threat of penalties is a violation of a personís right to refuse to incriminate himself. For instance, a person refusing to submit to a breath test to prevent him incriminating himself with his breath would be exactly the same as a person refusing to provide a statement or a document that would incriminate him in any other crime. And of course driving under the influence of alcohol is certainly a crime.
Furthermore, according to a number of legal precedents, a citizenís Common Law rights supersede statutory laws. For example:
These two court rulings state unequivocally that there is no statute that removes a Common Law right. In fact, the Victorian Director of Public Prosecutions appealed against the ruling by Magistrate Duncan Reynolds and the appeal failed. Therefore the precedent has been established that police do not have the unfettered right to stop or detain anybody and demand identification details.
It is most interesting to note that the advice given to police officers by the Police Association of NSW (PANSW) clearly upholds the Common Law privilege against self-incrimination. Here is an extract from a document published by this organisation called "Know Your Rights And Obligations".
So the PANSW has verified that people, including police, do have a Common Law privilege against self-incrimination. There is an explanation in brackets that infers that this applies to the right to silence, but I consider that if a person has a Common Law privilege against self-incrimination, then he has the right to refuse to provide anything that may tend to incriminate him, not just verbal testimony or statements. Documents, data, DNA, breath and blood samples could easily be construed as items that should be refused to be given because they may tend to incriminate the person in question.
In 2003, the Queensland Law Reform Commission (QLDLRC) issued a discussion paper titled "The Abrogation Of The Privilege Against Self-Incrimination", where the following was stated:
The critical words in the above paragraphs is "immunity against having to give evidence or supply information that would tend to prove the witness's own guilt". This information obviously is not restricted to verbal statements, but to supply information. It could be argued that such "information" means anything that could incriminate a person, witness or otherwise, such as documents, data, breath and blood samples or indeed anything in that person's possession.
The QLDLRC cited a case from 1986 with the following:
Again, it seems that a person is not bound to produce any document if it may tend to incriminate that person to a criminal charge or the imposition of a penalty. But one could easily imply that in this context, a document could also encompass data and bodily items such breath and blood samples.
However, according to the QLDLRC, this privilege against self-incrimination does not apply to "real or physical evidence" provided by the person, which has an existence independent of the personís testimony. QLDLRC states that the privilege will not protect a person from an obligation to provide fingerprints or a blood sample or to undertake a breath test. But this does not make any sense, because a document is also "real and physical evidence" and is covered by the privilege against self-incrimination. So what is the difference between a real and physical document and a real and physical breath or blood sample? In reality, none at all. They are all "real and physical evidence". Any person who upholds the right to refuse to incriminate himself by refusing to provide anything should cite this logical argument.
After I had made an enquiry from relevant politicians in regard to self-incrimination by being forced to submit to breath and blood alcohol testing and received a fair bit of evasion and issue dodging, I received this reply from Geoff Provest, Parliamentary Secretary for Police and Emergency Services on behalf of the Minister for Police.
NSW politicians keep insisting that these statutory laws displace common law rights, but it could be argued that if one of the pillars of Westminster justice as applies in Australia states unequivocally that a person has the legal right to refuse to incriminate himself, then this principle must apply to override any statutory or other laws that force a person to provide anything that may tend to incriminate him in any way. Somebody will probably have to take a challenge to a penalty for refusing a breath test to the High Court and obtain a judgement from the highest court in the nation in order to finally prove one way or another that either people do have the right to refuse to incriminate themselves or not.
It is a common misconception that police have broad powers in many areas. In fact the opposite is the truth. Police have a very limited range of powers and they have to literally justify everything they do. Australia is a free democratic nation, not a police state and although Australians do not have a Bill Of Rights like the USA, something that needs to be addressed, the people do have many Common Law rights that supersede any perceived powers that police think they have.
For instance, if a motorist refuses to undergo a breath test or a blood alcohol test on the grounds that this may incriminate him, the only way police can conduct such tests is by arresting the motorist and forcibly making him provide those samples. However, police have to have reasonable grounds to arrest people - they cannot just arbitrarily arrest a person for exercising his legal rights and refusing to say anything or provide anything that may incriminate him. And the action of forcing a person to incriminate himself by coercive means, such as arresting him and extracting blood without his consent completely violates that person's right to refuse to incriminate himself by forcibly taking material that may do this.
Obviously if a driver is proceeding erratically or is obviously drunk when pulled over, then police have reasonable grounds to arrest that person. But even then, if police forcibly make that person give a breath or a blood test or indeed anything that may tend to incriminate him and that can be used in evidence against him in court, this flies completely in the face of the legal principles upon which Australian law is based.
The Australian Governmentís Law Reform Commission states that a personís right to refuse to produce any document if the production would tend to incriminate him could easily be construed to mean a breath or blood sample or indeed anything at all. The interpretation of this would also encompass legal or statutory declarations.
These days, most states require the owner of a vehicle that has been booked by a speed or red light camera to sign a legal declaration that nominates who was the driver of the vehicle at that time. If that car owner refuses to nominate another driver, he is deemed to have been the driver who committed the offence. Of course this is ridiculously unfair and most probably illegal, because it demands that the car owner must completely abandon his legal right to refuse to provide anything that may tend to incriminate him.
So if a car owner refuses to sign such a declaration and also refuses to nominate who was driving his car at the time of an offence, deeming him to be the driver without a shred of evidence to prove it flies in the face of all common and statutory law. Any car owner who receives an infringement that does not specifically identify any person as the driver should simply refuse to sign any declaration or admission that could be used to incriminate him in any way.
A car owner is not obliged to assist police in prosecuting him and should never do so. It is entirely up to the prosecution in court to prove its case beyond reasonable doubt and a car owner's refusal to incriminate himself does not constitute hard evidence. Therefore in the absence of hard evidence that a particular person committed an offence, any charge against the car owner that cannot positively identify him as the person who actually committed the offence must be dismissed.
To perpetuate the fixed and red light camera scams, state governments have passed laws to make it easy for them to fine motorists without actually proving the identities of the actual offenders. These laws "deem" the owner of a vehicle that was caught speeding or going through a red light by a camera to be the guilty party unless he provides a signed statutory declaration or affidavit nominating the actual driver.
These "deeming" laws fly in the face of all recognised legal principles that state that a person is innocent of an offence unless he is proven to be guilty in a court of law. Because traffic offences are criminal offences, the identity of an offender must be clearly established by the prosecution. Deeming a person to have committed an offence merely on the basis that he owns the vehicle that was used to commit the offence simply does not satisfy the burden of proof required to convict anybody.
In 2015, a traffic matter in the Port Adelaide Magistrate's Court was dismissed when it was shown that the South Australian Police had not met the required burden of proof when they failed to identify the actual driver of a vehicle that they claimed was speeding. The magistrate stated that the prosecution had failed to provide evidence of the actual offender. Furthermore, the magistrate stated that ownership of the vehicle does not place ownership of the crime.
The magistrate said, "The police officer/s laying the charge had acted above the powers he has been authorised to hold. The failure to identify the persons in control of the vehicle at the time shows that they were clearly lazy and looking for the easy option." In other words, all those "deeming" laws are unenforceable. The magistrate also complimented the defendant and said that he had an excellent knowledge of common law - specifically the right to remain silent and the right to refuse to provide anything that may incriminate him. The defendant had staunchly refused to admit anything to police and refused to sign any affidavits or statutory declarations, notwithstanding all the bogus threats on the infringement notice that stated that he had to do this under the law.
This traffic matter had a very good outcome, because not only did the magistrate affirm everything that CARR has said about these idiotic "deeming" laws and set a very good precedent to use if any motorist is "deemed" to be guilty without being identified as the offender, but also that a person has common law rights to remain silent and not provide anything that may incriminate him. Of course without proper evidence, the prosecution cannot win such a case. The best news was that the defendant was awarded $15,750 compensation, which may make South Australian police think twice about trying to frame somebody for a traffic offence by "deeming" them to be guilty with no evidence.
Despite state governments claiming that they have the right to "deem" a car owner as the driver of a vehicle that has been booked and fine that driver if he does not nominate another person as the driver at the time of the offence, this is a sheer nonsense. Traffic offences are criminal offences, as proven by a letter from the NSW Roads and Maritime Services to a CARR member who was facing the suspension of his driver's licence.
This letter proves that if a motorist is booked, such as by a speed or red light camera, the alleged offence is a criminal matter. Therefore, if the motorist challenges the penalty, the prosecution must prove every element of the offence beyond reasonable doubt to a court. If the prosecution cannot prove the driverís identity and the driver has refused to incriminate himself by admitting that he was the driver or signing a statutory declaration to that effect, then just deeming a person to be the driver simply because he owns the vehicle that was booked is not evidence that he was indeed the driver and it should not be admissible or useable.
Therefore if you are booked and you know that your identity as the driver has not been established by hard evidence, never sign that stupid affidavit that comes with the infringement notice. Always write back to the infringement bureau and state that there is no evidence that you were the driver at the time of the booking and that deeming that you were the driver is not admissible evidence in a criminal matter. All criminal cases, no matter how small or trivial, have to satisfy a certain burden of proof and that proof requires that the identity of an alleged perpetrator be established beyond doubt. The identity of a driver cannot be established purely by inference.
You may be threatened with prosecution for refusing to sign such a declaration, but a person cannot be forced to provide any document that may tend to incriminate him and that is all there is to it. No court could convict a person for refusing to incriminate himself, as stated on the Australian Law Commission website.
Absence of evidence does not prove that a person committed an offence. Therefore every motorist should fight speed and red light camera infringements on that particular point and never ever provide any sort of ammunition for the state to prosecute him, such as signing a declaration that he was the driver. People are not required to incriminate themselves under any circumstances.
In criminal trials, the entire burden of proof rests with the prosecution. The defendant has the right to silence and the right to refuse to provide anything that may tend to incriminate him. Therefore the demands of governments or infringement bureaus for owners of vehicles to incriminate themselves are just hollow threats and no motorist should ever admit that he was the driver of a car booked by a speed or red light camera or sign an affidavit nominating another driver.
It's all too simple. The owner of a car that was detected in an offence is not required by law to admit that he was the driver, nor does he have to "rat out" another person in a sworn affidavit because he cannot swear on oath that this other person was actually driving his car at the time of the alleged offence. So the issue is to show a court that the traffic offence is indeed a criminal offence, therefore a refusal by a vehicle owner to provide any information or evidence is well within that car owner's right.
The Victorian Legal Aid website makes a number of crucial statements in this regard. Firstly it is stated that "What happens in court goes into your criminal record." That alone proves that traffic offences are criminal offences. But there is more.
The website also states, "You may also get a criminal driving record from VicRoads for traffic offences." and "For some offences, the magistrate can choose to send you to jail instead of giving you a fine." So it is obvious that traffic offences are criminal offences that are punishable by fine, jail, correction order and other penalties.
So it is important that if you receive a camera infringement, don't be intimidated by threats to admit that you were the driver, nor should you ever provide any document to the infringement bureau or anybody else. Simply refuse to provide anything, remembering that you can easily prove to a court that traffic offences are criminal offences, thus you have the legal right to silence and the legal right to refuse to provide anything that may tend to incriminate you.
Most importantly, insist that the prosecution prove every single aspect of their case and if they do not have your identity as the offending driver, then they have no case against you.
I have provided many reasons why people should never talk to police and this information is on the Don't Talk To Police page. Not talking to police is one thing and not providing any evidence that could incriminate you is an extension of this. So the very simple rule to protect yourself against prosecution is to simply say nothing and never provide any material of any sort that may tend to incriminate you and that is your legal right. This includes breath tests, blood alcohol tests, DNA samples, documents, statutory declarations and literally anything you think may be detrimental to you.
Never be fooled by the notion that providing material to police or other government agencies is somehow innocent and nothing can happen. There are plenty of people sitting in jails who did this and discovered that they were convicted of crimes that had nothing to do with the original matters. Watch the very informative lecture by American law professor James Duane in his excellent video clip Don't Talk To Police and you will learn why you should protect yourself at all time by not giving one iota of information or evidence to police or anybody else.