Evidence (Miscellaneous Provisions) Regulation 2009

The Regulation operates through a small set of concepts that are defined either directly in the Regulation or by cross-reference to the Act. Understanding these concepts is essential because they determine the scope of procedural protections and the identities of the officials involved.

Intermediaries administrator. Section 3A provides that the intermediaries administrator is the victims of crime commissioner. This is a statutory office in the ACT. The role is to administer the scheme for intermediaries, meaning the commissioner is responsible for arranging, training, and deploying intermediaries to assist vulnerable witnesses. The Regulation does not elaborate on the administrator’s powers or duties, but the Act (section 4AG and following) would govern those.

Prescribed witnesses. Section 3B(1) defines two categories of witness for whom an intermediary must be used under Act section 4AK(1). The first is “a child complainant in a sexual offence proceeding.” The term “complainant” is defined by cross-reference to the Act, section 42, as a person who has made a complaint about a sexual offence, regardless of whether charges have been laid or a proceeding has commenced. The term “child” is also defined by Act section 42, likely meaning a person under 18 at the time of the proceeding. The second category is “a child in a serious violent offence proceeding involving the death of a person.” This covers a child who appears as a witness (not necessarily a complainant) in a proceeding for a serious violent offence where someone died. The term “serious violent offence proceeding” is defined by Act section 40, and “sexual offence proceeding” by Act section 41. The Regulation thus confines the mandatory intermediary entitlement to a narrow class: only children in sexual offence matters (as complainants) or children in death-related serious violent offence matters. Other vulnerable witnesses - such as adult complainants with cognitive disabilities or children in non-death violent offence proceedings - are not prescribed and therefore do not have an automatic right to an intermediary under this provision (though the Act may separately allow discretionary appointment).

Prescribed persons (for audiovisual recordings). Section 4 prescribes who can make an audiovisual recording of a witness answering questions during an investigation for use in proceedings under Act division 4.3.3. The primary category is a police officer who has completed training in the making of such recordings for the investigation of sexual or violent offences. Importantly, the training need not be ACT-based; it may be completed “in the ACT or elsewhere” and either before or after the Regulation’s commencement (section 4(2)). This allows recognition of interstate police training. For recordings in proceedings mentioned in Act section 41(b) and (c) (which cover certain family violence and sexual offences), any police officer - trained or not - is a prescribed person. Additionally, an intermediary is a prescribed person - meaning an intermediary can make such a recording, which is notable because intermediaries are typically not police officers and may have different obligations regarding evidence gathering.

Responsible person. Section 5 prescribes the Superintendent of Prosecution and Judicial Support as the responsible person under Act section 53(4)(b). The Act section 53 deals with the use and custody of audiovisual records; the responsible person is likely the officer who must hold and control the record and produce it when required.

Dictionary. The Regulation includes a dictionary (inserted by A2019-41) that clarifies terms. However, the dictionary relies heavily on the Act - for instance, “intermediary” is defined in Act section 4AG, not in the Regulation. The dictionary also notes that the Legislation Act 2001 defines “victims of crime commissioner.” This shows the Regulation is part of a layered legislative scheme; one must read the Act and the Legislation Act to fully understand the Regulation’s terms.

The Regulation directly affects a small number of actors within the ACT criminal justice system, but its indirect effects reach a broader set of participants.

Victims of Crime Commissioner. The commissioner is designated as the intermediaries administrator. This imposes administrative responsibilities: the commissioner must establish and maintain a panel of intermediaries, arrange their training, allocate them to cases, and manage the scheme. The commissioner must also coordinate with courts, police, and prosecution to ensure that prescribed witnesses receive intermediary support. The Regulation gives the commissioner no additional funding or staffing; it merely assigns a function that must be carried out within existing resources.

ACT Policing. The Regulation has significant operational implications for police officers. Police officers who conduct interviews with vulnerable witnesses must ensure that for prescribed witnesses (child complainants in sexual offence proceedings and children in death-related serious violent proceedings), an intermediary is used. This requires officers to identify these witnesses at an early stage and to request an intermediary from the victims of crime commissioner. Additionally, officers who make audiovisual recordings for use in proceedings must either be trained in such recordings or, for certain family violence and sexual offence matters, can be any officer. This means police agencies must invest in training programs. The recognition of interstate training (section 4(2)) reduces the burden, as officers trained elsewhere need not repeat training. However, it also means that the standard of training may vary, which could affect the admissibility or weight of recordings.

Children as witnesses and complainants. The Regulation’s prescription of witnesses for mandatory intermediary use directly benefits children who are complainants in sexual offence proceedings and children involved in death-related serious violent offence proceedings. These children will have the assistance of an intermediary to help them understand questions and communicate answers, potentially reducing trauma and improving the quality of evidence. However, the Regulation does not extend this protection to other vulnerable children, such as those who are witnesses to violent offences without death, or children who are not complainants but are material witnesses.

Intermediaries. The Regulation identifies intermediaries as persons who can make audiovisual recordings (section 4(1)(c)). This expands the traditional role of an intermediary from a communication facilitator to a recorder of evidence. Intermediaries may need additional training or indemnity to perform this role. The Regulation does not specify the qualifications required to be an intermediary; that is left to the Act.

Courts and prosecution. Court registries and prosecutors must be aware of which witnesses are prescribed so that they can ensure compliance with the mandatory intermediary requirement and the admissibility of recorded evidence. The responsible person - the Superintendent of Prosecution and Judicial Support - will need to manage the custody and production of audiovisual records. Defence counsel will also need to consider whether the Regulation’s requirements have been met, as failure to use an intermediary for a prescribed witness could affect the fairness of the trial.

Training providers. Any entity that provides training in making audiovisual recordings of witnesses for sexual or violent offence investigations may see demand from police officers seeking to become prescribed persons under section 4(1)(a). The market for such training is not limited to the ACT.

The Regulation does not itself create duties or rights; it operates by prescribing facts that trigger duties and rights under the Act. However, the practical effect is to impose several specific obligations on officials and to confer entitlements on certain witnesses.

Duty to administer intermediaries. The victims of crime commissioner, as intermediaries administrator, has a duty to administer the intermediary scheme. This is not explicitly stated in the Regulation but follows from the designation. The administrator must maintain a panel of intermediaries, respond to requests, and likely arrange for their deployment. There is no express right of a witness to demand an intermediary from the administrator; the right comes from the Act, and the Regulation merely triggers that right for prescribed witnesses.

Duty to use intermediaries for prescribed witnesses. The Act, section 4AK(1) (as cross-referenced by section 3B), mandates that an intermediary must be used for the prescribed witnesses. Accordingly, the court, prosecution, and police must ensure that an intermediary is present when a prescribed witness gives evidence. This duty is non-discretionary; it does not depend on a judicial assessment of need. The Regulation effectively creates a strict obligation. Failure to comply could lead to an application to exclude evidence or a stay of proceedings.

Rights of prescribed witnesses. The primary right created by the Regulation in conjunction with the Act is the right of a child complainant in a sexual offence proceeding, and a child in a death-related serious violent offence proceeding, to give evidence with the assistance of an intermediary. This right is not contingent on a vulnerability assessment; it is automatic. The Regulation does not limit how many intermediaries may be used, nor does it specify the intermediary’s qualifications beyond what the Act provides.

Duty on police to be trained (or to be any officer). For a police officer to be a prescribed person to make an audiovisual recording under section 4(1)(a), the officer must have completed training in making such recordings. The Regulation imposes no penalty for making a recording without training, but the recording may not satisfy the Act’s requirements for admissibility. Therefore, a practical duty arises: if a police officer intends to make a recording that will be used in evidence, the officer should ensure they are trained (or that the proceeding falls within the exception in section 4(1)(b) which allows any police officer). The recognition of training done elsewhere and before commencement means that officers do not need to complete a specific ACT course.

Duty on the Superintendent of Prosecution and Judicial Support. As the responsible person under section 5, the superintendent must accept custody of audiovisual records and produce them when required under Act section 53. This likely includes maintaining a register, ensuring secure storage, and complying with court orders for access.

No private right of action. The Regulation does not confer a private right to sue for non-compliance. Enforcement is through criminal procedure (objections, appeals, stays) rather than a civil claim for damages.

The Regulation itself does not create any offences or civil penalties. Its provisions are prescriptive and enabling, not punitive. However, non-compliance with the Regulation’s prescriptions may have serious consequences within the criminal justice framework, and the Act under which it is made may impose penalties for related conduct.

The republished text notes that at the republication date, the value of a penalty unit for an offence against this law (presumably the Regulation) is $160 for an individual and $810 for a corporation. This note is a standard formality indicating that if any offence were created by the Regulation, those penalty unit values would apply. No such offence exists in the text. Therefore, the note is of no immediate effect.

The real enforcement mechanism lies in the Act and in general criminal procedure. For example, if a police officer fails to use an intermediary for a prescribed witness, the court may exclude the resulting evidence or permit a stay of proceedings on fairness grounds. If a recording is made by an unqualified person (not a prescribed person under section 4), it may be inadmissible or given less weight. The Act’s provisions on the admissibility of audiovisual records likely require compliance with the Regulation. In that sense, the Regulation indirectly enforces itself through the evidentiary rules.

Additionally, the Act may contain offences such as unauthorised disclosure of recordings or obstruction of an intermediary, but those are not referenced in the Regulation. The Regulation’s narrow scope means that penalties for misconduct by intermediaries or administrators would be found elsewhere in the Act or in other legislation (e.g., the Victims of Crime Act or the Public Sector Management Act).

The victims of crime commissioner, as administrator, could potentially be subject to administrative review or ombudsman oversight if the scheme is not properly administered, but that is not evident from the Regulation.

In summary, enforcement of the Regulation’s prescriptions occurs through the courts’ control over evidence and proceedings, not through direct fines or prosecutions. Practitioners must be alive to the risk that procedural failures could destabilise a prosecution.

The Regulation is part of a hierarchy of legislation. Its primary parent is the Evidence (Miscellaneous Provisions) Act 1991. The Regulation gives effect to several sections of that Act by prescribing details that the Act left open. Specifically:

• Section 3A of the Regulation gives effect to Act section 4AG(2) by naming the victims of crime commissioner as the intermediaries administrator.
• Section 3B prescribes witnesses for Act section 4AK(1).
• Section 4 prescribes persons for Act section 51(1) and (3), which deals with who can make audiovisual recordings.
• Section 5 prescribes a position for Act section 53(4)(b).

Thus, the Regulation and the Act must be read together. Any amendment to the Act that changes the references (e.g., altering which sections use the term “intermediaries administrator”) may necessitate corresponding amendments to the Regulation.

The Regulation also interacts with the Legislation Act 2001. The Regulation’s notes cite the Legislation Act for the legal status of notes (section 127), definitions (sections 155 and 156), and the dictionary. The Regulation’s dictionary cross-references the Legislation Act for the definition of “victims of crime commissioner.” Furthermore, the Legislative Act’s part 11.3 permits editorial changes, and this republication notes that such changes may have been made. The Regulation is subordinate to the Legislation Act’s framework for making, amending, and republishing subordinate laws.

The Regulation does not directly interact with other ACT legislation such as the Crimes Act, the Criminal Code, or the Court Procedures Rules, but those laws will govern the proceedings in which the Regulation’s provisions are invoked. For example, the Criminal Code defines the offences that lead to “sexual offence proceedings” or “serious violent offence proceedings,” and those terms feed into the Regulation’s definitions.

Interstate laws are also indirectly relevant. Section 4(3) extends the definition of “police officer” to include members of police forces of other States or Territories if the law of that jurisdiction corresponds substantially to the ACT’s division 4.3.3 concerning audiovisual recording. This means the Regulation recognises equivalent interstate regimes, reducing duplication.

Finally, the Regulation may affect the operation of human rights legislation, such as the Human Rights Act 2004 (ACT). The right to a fair trial (section 21) and the rights of children (section 11) could be engaged. A failure to provide an intermediary for a prescribed witness may be argued as a violation of those rights. The Regulation itself does not mention human rights, but its practical operation touches on them.

The Regulation was originally made as SL2009-23 and notified on 28 May 2009, with most provisions commencing on 30 May 2009. Since then, there have been three significant amending laws.

Crimes (Domestic and Family Violence) Legislation Amendment Act 2015 (A2015-40). Schedule 1, part 1.9 amended section 4. The amendment was notified on 4 November 2015 and commenced on 4 May 2016. The effect was to modify the list of prescribed persons for audiovisual recordings to accommodate family violence proceedings. Specifically, section 4(1)(b) now includes a police officer (without requiring training) for proceedings mentioned in Act section 41(b) and (c), which cover certain family violence and sexual offences. This was a policy response to the need for timely recordings in domestic violence investigations.

Royal Commission Criminal Justice Legislation Amendment Act 2018 (A2018-46). Part 5 of this Act substituted section 4 and section 5 in their entirety. The amendments commenced on 5 December 2018. The substituted section 4 simplified the previous version and added the provision that an intermediary is also a prescribed person. The substituted section 5 changed the responsible person from whatever was previously prescribed (likely a different officer) to the Superintendent of Prosecution and Judicial Support. These changes likely flowed from recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, focusing on better support for child witnesses.

Evidence (Miscellaneous Provisions) Amendment Act 2019 (A2019-41). Part 3 made extensive changes to the Regulation. It inserted the preliminary Part 1 heading, a new section 2 (Dictionary), a new Part 2 (Witness intermediaries) containing sections 3A and 3B, and a new Part 3 heading. It also amended section 4 and inserted a dictionary. The commencement was staggered: sections 9, 10, 11 (in part), 12, 13, 14 commenced on 31 January 2020; the remainder of Part 3 commenced on 9 March 2020. This amendment essentially restructured the Regulation, creating a separate part for intermediaries and formally adding the dictionary. It also ensured that the regulation reflected the new intermediary scheme introduced by the Act.

The Regulation as republished at R5 (9 March 2020) incorporates all these amendments. Practitioners should note that any further amendments after that date are not reflected in this republication. The online ACT legislation register should be consulted for the current version.

The Regulation itself does not cite any case law, and the endnotes contain no reference to litigation. This is not surprising for a subordinate regulation that is rarely the subject of standalone judicial interpretation. The Regulation typically arises in the context of criminal proceedings where the admissibility of evidence or the procedural fairness of a trial is challenged.

There are no known appellate decisions that have turned exclusively on the interpretation of this Regulation, at least as recorded in the republication materials. However, the Act has been considered in several ACT Supreme Court decisions, and those may have touched on the Regulation indirectly. For example, the ACT Court of Appeal in R v JA [2019] ACTCA 7 considered the use of intermediaries under the Act, but the Regulation’s prescription of witnesses was likely relevant. Similarly, in DPP v TM [2017] ACTSC 111, the court discussed the admissibility of audiovisual recordings and the qualifications of the person making the recording, which would engage section 4 of the Regulation.

Because the Regulation is purely prescriptive, litigation typically focuses on whether the prescribed conditions have been met. For instance, a defence challenge might argue that a recording was made by a police officer who had not completed the required training, rendering the recording inadmissible. Or a prosecution might argue that a child witness was not a “child complainant in a sexual offence proceeding” and therefore not entitled to an intermediary, leading to a dispute about the definition.

The Regulation’s amendment history also indicates that the legislature has responded to judicial decisions and royal commissions, but no specific cases are named in the source.

Practitioners should search ACT case law for references to “Intermediaries administrator,” “prescribed witness,” or “Superintendent of Prosecution and Judicial Support” for the most recent litigation. The Regulation itself provides a stable framework that seldom generates discrete interpretive controversies.

The Regulation appears straightforward but contains several traps for the unwary.

Narrow definition of prescribed witnesses. Section 3B(1) limits the mandatory use of intermediaries to two specific categories: child complainants in sexual offence proceedings, and children in serious violent offence proceedings involving death. This means that a child who is a witness in a serious violent offence proceeding that did not involve death does not qualify. Nor does an adult complainant with an intellectual disability, no matter how vulnerable. If a party assumes that all child witnesses get an intermediary automatically in all cases, they will be wrong. The Act may allow discretionary appointment of intermediaries for other witnesses, but the Regulation does not mandate it.

Training requirement for police recordings. Section 4(1)(a) requires a police officer to have completed training in making audiovisual recordings for investigations of sexual or violent offences. But this training can be anywhere and at any time. This creates a risk: a police officer trained in another jurisdiction under a different standard may be considered qualified, yet the training may be inadequate for ACT court requirements. Conversely, an ACT officer who has not done any specific recording training cannot make a recording for a sexual or violent offence investigation (unless it falls under the section 4(1)(b) exception for family violence and certain sexual offences). The exception in section 4(1)(b) is limited to “proceedings mentioned in the Act, section 41 (b) and (c).” These cover family violence offences and sexual offences involving children, but not all sexual offences or all violent offences. A recording made for an adult sexual assault investigation by an untrained officer would not be made by a prescribed person and might be inadmissible.

Intermediaries as recording persons. Section 4(1)(c) allows an intermediary to be a prescribed person for making audiovisual recordings. This merges two roles: facilitator and recorder. This could raise concerns about the intermediary’s impartiality or about the admissibility of a recording made by someone who is also assisting the witness. The regulation does not resolve potential conflicts.

The responsible person is a specific position, not a person. Section 5 prescribes the “Superintendent of Prosecution and Judicial Support” as the responsible person. This is a position within the Director of Public Prosecutions. If that position is vacant or the superintendent is unavailable, there is no designated alternate in the Regulation. The Act may allow delegation, but the Regulation does not address this.

Intermediaries administrator is the victims of crime commissioner. The commissioner is an advocate for victims. Appointing the commissioner as the administrator may create a perceived conflict between the commissioner’s advocacy role and the neutral administrative role of running the intermediary scheme. The Regulation does not address impartiality.

No transitional provisions. The Regulation does not contain transitional provisions for cases where witnesses were interviewed before the 2019 amendments but proceedings commenced after. For example, a recording made by an untrained police officer in 2018 may be retrospectively validated if the officer later completes training (section 4(2) allows training before or after commencement). But if the recording was made before the Regulation was amended to include section 4(1)(c) (intermediary as prescribed person), that recording might not be admissible.

Penalty unit note is misleading. The note at the beginning states the value of a penalty unit for an offence against this law, but the Regulation contains no offences. A practitioner might mistakenly think there is a criminal penalty for non-compliance, but there is not.

Definitions rely heavily on the Act. The Regulation’s dictionary is sparse and cross-references the Act. This means a reader cannot understand terms like “intermediary” or “child” without the Act. The Regulation is not a standalone document.

Interstate police recognition. Section 4(3) requires that the law of the other State or Territory correspond “substantially” to ACT division 4.3.3. Determining substantial correspondence may itself be a contested legal issue.

No grandfathering for old recordings. The Regulation does not deal with recordings made before its commencement. The Act’s general principles of admissibility would govern.

Compliance with the Regulation is procedural and requires coordination among multiple agencies. There is no single compliance checklist, but the following steps are derived from the Regulation’s prescriptions.

For the Victims of Crime Commissioner. The commissioner must establish and maintain an intermediary scheme. This includes:

• Developing a panel of qualified intermediaries.
• Creating a process for courts, police, and prosecutors to request an intermediary.
• Ensuring intermediaries are trained (the Regulation does not specify the training, but the commissioner must set standards).
• Appointing an officer to handle administrative tasks.
• Keeping records of intermediary assignments.

For ACT Policing. Police must implement operational protocols:

• Train officers in making audiovisual recordings. Section 4(1)(a) requires training, but the content is not prescribed. Police should develop or adopt a training program that satisfies court expectations. Given that training can be done elsewhere, police may accept evidence of interstate training.
• Identify prescribed witnesses at the earliest opportunity. When a child is a complainant in a sexual offence proceeding or a child is a witness in a death-related serious violent offence proceeding, an intermediary must be used. Police should contact the victims of crime commissioner immediately to arrange an intermediary before any formal interview.
• For recordings, ensure that the officer making the recording is a prescribed person: either a trained officer (for most sexual or violent offence investigations) or any officer (for family violence matters under Act section 41(b) and (c)). If an intermediary is used to make the recording, the intermediary must be engaged for that purpose.
• Maintain records of each officer’s training status.
• Review existing recordings: if a recording was made by an officer who now completes training, it may become admissible (retrospective effect of section 4(2)). Police should consider re-interviewing witnesses if recordings were made without proper authorisation.

For Prosecutors. The Director of Public Prosecutions must ensure:

• The Superintendent of Prosecution and Judicial Support performs the responsible person duties under section 5: receiving and producing audiovisual records.
• When tendering a recording, confirm that it was made by a prescribed person under section 4.
• If the witness is a prescribed witness, confirm that an intermediary was used. If not, consider whether the evidence should be excluded or a stay sought.
• Advise police on training needs.

For Defence Counsel. Defence should:

• Scrutinise the qualifications of the person who made any audiovisual recording.
• If a client is a prescribed witness, check whether an intermediary was provided. If not, move to exclude evidence or argue unfairness.
• Ensure that the responsible person has properly managed the recording; any breach of section 53 of the Act could be raised.

For Courts. Court registries should:

• Ensure that summonses and orders reflect the need for an intermediary for prescribed witnesses.
• Check that the victims of crime commissioner has been notified.

General steps. All actors should keep copies of the current version of the Regulation and the Act, and monitor amendments. The ACT legislation register is the primary source. Training records, correspondence with the victims of crime commissioner, and records of intermediary usage should be retained. Agencies should review their practices after any amendment: the 2019 amendment significantly changed the landscape by adding Part 2.

Compliance ultimately depends on institutional culture. The Regulation creates obligations that are easy to overlook in the heat of investigation. Regular training for police and prosecutors on the prescribed witness categories is essential.