Can Qld Police seize your GoPro or SM card and use it as evidence?
If a Queensland police officer either lawfully enters a private place, or is at a public place, and the officer reasonably suspects that a “thing” could provide evidence of an offence, the officer can legally seize the thing with or without a warrant. The source of this broad power is found in section 196 of the Police Powers and Responsibilities Act 2000 (Qld) (the Act).
This broad power means that police can confiscate a GoPro or SD card (the device) if the police officer “reasonably suspects” that evidence of any type of offence may be found on the device.
An “offence” is essentially an act that involves breaking the law. There are two types of offences.
- Summary offence: These offences are characterized as being less serious. Examples include most traffic charges, trespass, public nuisance i.e. being loud, threatening someone etc.
- Indictable offence: These offences are characterized as being more serious. Examples include unlawful use of a motor vehicle, robbery, willful damage to property, possessing small quantities of a “dangerous drug” etc.
In addition to the broad powers found in section 196, section 54(1)of the Act, also provides police with the power to make any reasonably necessary inquiry, investigation, inspection, examination or test for establishing whether or not an offence against the Transport Operations (Road Use Management) Act 1995 (Qld) or the Heavy Vehicle National Law (Queensland) has been committed.
If a police officer does seize your device, the Act provides that in most circumstances you should be issued with a receipt as soon as it is reasonably practicable for the police officer to do so. (Section 622 of the Act). The police can examine the entire contents of the device. The police officer must return the device or item of property as soon as reasonably practicable. (Section 691 of the Act). After a period of 30 days, you have the option of writing to the Police Commissioner to have your device or item of property returned to you if the device or item of property is not going to be used as evidence in proceedings. (Section 692 of the Act). Failing your application to the Police Commissioner you can apply to the Magistrate’s Court to have the device or item of property returned to them. (Section 693 of the Act). Please note that if the police wish to keep the device for longer than 30 days, they will have to obtain a court order to do so.
If evidence of an offence is found on the device, be it an offence committed by the owner of the device or by another person, the evidence on the device can be used against the offender. For example, if the GoPro device has captured footage of a motorbike rider speeding, this evidence can be used against the motorbike rider.
The police should then return your device or thing to you unless it is unlawful for the police to do so. For example, if the police found an illegal drug on your person when they were finding evidence of an offence, the illegal drug would not be returned to you.