(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
S. 464J(ba) inserted by No. 69/2009 s. 50.
(ba) the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence.
S. 464JA inserted by No. 87/2009 s. 4.
464JA Offences in relation to recordings
S. 464JA(1) def. of authorisedperson amended by Nos 64/2010 s. 3(1), 43/2012 s. 3(Sch. item 11.2), 82/2012 s. 159(1), 37/2014 s. 10(Sch. item 36.19(a)), 31/2024 s. 113(Sch. 1 item 7).
authorised person means—
(a) a member of Victoria Police personnel (other than a protective services officer);
(b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment;
(c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director;
(d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;
(e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994;
(f) a legal practitioner representing—
(i) the State; or
(ii) an informant;
(g) a legal practitioner representing—
(i) a suspect recorded under section 464B(5H), 464G or 464H; or
(ii) a co-accused of the suspect;
(h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978;
(i) a court or a person acting under the direction of a court;
(j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner;
(k) the Commissioner for Law Enforcement Data Security appointed under Part 2 of the or a person acting under his or her direction;
Commissioner for Law Enforcement Data Security Act 2005
(l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner;
(m) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under his or her direction;
(n) the Chief Integrity Inspector within the meaning of the Integrity Oversight Victoria Act 2011 or a person acting under his or her direction;
(o) a member of the Legislative Assembly or Legislative Council or a person acting under his or her direction;
(p) a person, or person belonging to a class of persons, prescribed for the purposes of this definition;
(q) an investigating official or person acting under his or her direction;
(r) a person engaged by a Department or agency to store or retrieve a record;
publish means—
(a) insert in a newspaper or other publication; or
(b) disseminate by broadcast, telecast or cinematograph; or
(c) bring to the notice of the public or any member of the public by any other means, including by publication on the Internet;
recording means a recording made in accordance with section 464B(5H), 464G or 464H.
(2) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—
(a) is the suspect; or
(b) is a legal practitioner representing the suspect; or
(c) is an authorised person acting in the performance of his or her duties; or
(d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.
The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.
(3) A person must not play an audio recording or an audiovisual recording to another person unless—
S. 464JA(3)(a) substituted by No. 64/2010 s. 3(2).
(a) the recording is played for purposes connected with any civil or criminal proceeding and any inquiry before any court or tribunal; or
(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or
S. 464JA(3)(c) amended by No. 37/2014 s. 10(Sch. item 36.19(b)).
(c) the recording is played for purposes connected with disciplinary action against a police officer under the Victoria Police Act 2013; or
(d) the recording is played for purposes connected with disciplinary action against a legal practitioner; or
(e) the recording is played in accordance with the direction of a court under section 464JB; or
(f) the recording is played in accordance with section 464JD; or
(g) the recording is played by an authorised person acting in the course of his or her duties.
The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.
(4) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than—
(a) the suspect in relation to whom the recording was made;
(b) a legal practitioner representing the suspect;
(c) an authorised person acting in the performance of his or her duties;
(d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording.
The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.
(5) A person, other than an authorised person acting in the performance of his or her duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 464JB.
The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.
S. 464JA(6) amended by No. 64/2010 s. 3(3).
(6) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording while the recording is being retained under section 464JC, except in accordance with the direction of a court under section 464JB.
The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.
(7) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 464JB.
Level 7 imprisonment (2 years maximum).
The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 1200 penalty units: see section 113D of the Sentencing Act 1991.
(8) An offence against a provision of this section is a summary offence.
S. 464JB inserted by No. 87/2009 s. 4.
464JB Court may give directions in relation to a recording
(2) A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.
S. 464JC inserted by No. 87/2009 s. 4.
464JC Retention of copy of recording
authorised person has the same meaning as in section 464JA;
court means—
(a) if a criminal proceeding to which the recording relates has commenced but has not been completed, the court hearing the proceeding;
(b) in any other case, the Magistrates' Court;
S. 464JC(1) def. of DepartmentHead inserted by No. 64/2010 s. 4(1).
Department Head has the same meaning as in the Public Administration Act 2004;
S. 464JC(2) amended by Nos 64/2010 s. 4(2)(3), 37/2014 s. 10(Sch. item 36.20).
(2) The Chief Commissioner of Police must keep a copy of a recording, if the recording has been made by a police officer in the course of an investigation, in safe custody.
S. 464JC(2A) inserted by No. 64/2010 s. 4(4), amended by Nos 48/2012 s. 47, 37/2014 s. 10(Sch. item 36.20).
(2A) If the recording has been made by an investigating official who is not a police officer, the recording must be kept in the custody of the Department Head for the Department, where the investigating official made the recording in the course of carrying out duties for or on behalf of that Department.
S. 464JC(2B) inserted by No. 64/2010 s. 4(4).
(2B) A recording referred to in subsection (2) or (2A) must be kept for a period of 7 years from the making of the recording.
S. 464JC(3) amended by No. 64/2010 s. 4(5).
(3) If the court is satisfied that there is good cause to keep a copy of a recording for a period longer than 7 years, the court may order that the Chief Commissioner of Police or the Department Head retain the copy for a further period specified in the order.
(4) An application for an order under subsection (3) may be made by—
(a) the suspect in relation to whom the recording was made; or
(b) an authorised person acting in the performance of his or her duties.
(5) The court must not make an order under subsection (3) unless—
S. 464JC(5)(a) amended by No. 64/2010 s. 4(6)(a).
(a) the court is satisfied that the applicant has given reasonable notice of the application to the suspect and the Chief Commissioner of Police or the Department Head; and
S. 464JC(5)(b) amended by No. 64/2010 s. 4(6)(b).
(b) the court has given the suspect and the Chief Commissioner of Police or the Department Head a reasonable opportunity to be heard.
S. 464JD inserted by No. 87/2009 s. 4.
464JD Use of recordings for training, teaching or testing purposes
S. 464JD(1) def. of prescribed person amended by Nos 64/2010 s. 5(1), 37/2014 s. 10(Sch. item 36.21).
prescribed person means—
(a) a member of Victoria Police personnel (other than a protective services officer);
(b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment;
(c) a legal practitioner or a person training to become a legal practitioner;
(d) a person, or a person belonging to a class of persons, prescribed for the purposes of this section;
(e) an investigating official or a person acting under his or her direction;
(2) Subject to section 464JA, a recording may be played to a prescribed person for the purposes of training or teaching that person or testing the recording equipment if—
(a) the suspect has been convicted or found guilty of the charge to which the recording relates; and
(b) all legal proceedings in relation to the subject matter in the recording have been concluded; and
(c) all reasonable measures have been taken to prevent the identification of the suspect or any other person (including an alleged victim) from the recording when it is played.
Heading inserted by No. 16/2002 s. 4(a).
Fingerprinting
S. 464K inserted by No. 38/1988 s. 4,
amended by Nos 25/1989 s. 11(c), 57/1989 s. 5(1)(c), substituted by No. 129/1993 s. 7.