NSW Mobile Phone Seized by Police as Exhibit - What to Do?

Discussion in 'Criminal Law Forum' started by Katrina Martin, 8 August 2017.

  1. Katrina Martin

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    My mobile phone was seized on 9th June, 2017 because I had recorded a police interview (using voice memo) without the detective's knowledge. The police only found out about it because of a recorded phone call made between myself and my brother (who is incarcerated in a NSW prison).

    My brother is being held on remand for alleged domestic violence offences and gun related charges (e.g.: not securing a firearm safely; not having a gun license). Note, the guns were never used for any crime.

    The detective asked me for my phone and pin lock number. I initially refused, but was then told if I did not comply I would be arrested for breaching the crimes and surveillance act of recording a police officer and they would take the phone regardless. The detective said he "only wanted to download the voice memo...and he will decide if any charges will apply". He also said if his technician had time, I could even get my phone back later that afternoon. These were all lies. Further, the detective even contacted one of our solicitors and informed them I had recorded them too! My solicitor hung up on them.

    It is now the 8th August and 2 months has passed. I have tried in vain to contact the detective by phone and email with no response. I wrote a letter to the NSW Police Force Customer Assistance Unit and received a reply from the Campbelltown Police Local Area Command. The letter states that "I have determined that police have acted appropriately in this instance, in that your mobile phone was lawfully seized as an exhibit".

    My questions are:

    1. What exhibit? If they are using my phone for my brother's criminal case, can they do that?

    They did not produce a warrant. Nor did they tell me it was going to be used for his case. There is nothing on my phone that connects any criminal activity to do with my brother. I have email correspondence to my brother's criminal and family lawyers. I've been told the police cannot use this in court. No doubt they still will.

    2. How long can the police hold on to my phone without arresting me?

    3. If the police have downloaded everything they need - then why is my handset still being held by police?

    Clearly I am frustrated by the lack of information and I am paying for a brand new iPhone 7 plus which I cannot use.

    Any help on what I should do next would be most appreciated.

    Thank you.
     
  2. Rod

    Rod Lawyer
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  3. Katrina Martin

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    Hi Rod, yes I thought of taking civil action and I have a solicitor. My solicitor has already written to the Detective (quite a lengthy email) and received very little response. As I live in Qld, it is also difficult for me to fight this interstate. I've been told that Police can hold on to 'evidence' indefinitely...I am just confused as to why the hand set is needed. Surely the police have downloaded everything they need - why keep the hand set???
     
  4. Rod

    Rod Lawyer
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    Because they can.
     
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  5. Gorodetsky

    Gorodetsky Well-Known Member

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    Hi Katrina,
    Yeah, cops don't like being recorded....it sometimes makes them accountable....ie can cost them their job.

    So your question - why keep it? Because you did something which challenges their authority. Have you hear or the RAT? Roadside attitude test? You failed their (BS) attitude test, so he has classified you as a baddie, and will try to cause you trouble (like the call to the solicitor).

    Ok, so in NSW the legislation I think is this
    SURVEILLANCE DEVICES ACT 2007 - SECT 7 Prohibition on installation, use and maintenance of listening devices

    And if you recorded him without his knowledge that's naughty. Apparently.

    He responded with threats and lies. He disingenuously says he needs to keep it for evidence. The phone contains no meaningful evidence I assume. One could assume this cop simply intends to deny you use of the phone.

    You got a solicitor to write a letter to the cops and they didn't explain their intentions with the "evidence" or how long they are going to keep it. (Because they don't have any plans for it).

    For arguments sake they could say "it's evidence in your own illegal recording matter, which they haven't moved on yet, but are waiting to consider prosecution."

    You could write to them and ask for it back every 4 months...copy your local MP each time....start suggesting they have lost it...start suggesting it might have been stolen.(stolen stuff from evidence becomes a scandal every few years)...at some point continuing to keep it from you will become a liability to them...as their reason for keeping it becomes more and more tenuous.

    But I expect that will be several years from now.

    At least now you know what some cops are like...you lost a new iPhone...some people end up in jail.

    Regards
    Gorodetsky
     
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