Evidence (Visual Recording of Interviews with Children and Persons with Mental Impairment) Regulations 2004

Relevant person (reg 3(1)) is the central gatekeeping concept. It means a member of the Police Force, a person authorised by the Commissioner under reg 4A, or an officer as defined in s 3 of the Children and Community Services Act 2004. Authorisation under reg 4A can extend to contractors engaged by the Western Australian Police Service, which widens the pool beyond sworn officers. Prescribed class of persons (reg 4) includes any relevant person who has successfully completed a training course provided by the Western Australian Police Service, the department (the department assisting administration of the Children and Community Services Act 2004), or a course approved in writing by the Commissioner. It also covers members of police forces from other Australian jurisdictions who are authorised under their own law to conduct such interviews. Prescribed requirements for interviews are set out in reg 5 (children) and reg 6A (persons with mental impairment). For both categories, the interview must be conducted so that, as far as practicable, statements are not elicited by leading questions. For children under 12, there is an additional requirement either that the child appears to understand the seriousness of the interview and the obligation to tell the truth, or that it is apparent the child has reached a level of cognitive development enabling rational understanding and response. For persons with mental impairment, the interviewer must ensure it is apparent the person understands that giving evidence is serious and that the truth must be told, and that the person has a level of cognitive functioning enabling an intelligible account. Both reg 5(c) and reg 6A(c) require that the recording document the date, place, identity of all persons present, and any breaks with times and reasons. Certificate (reg 7) is a formal document the interviewer must provide, stating that the interviewer is of the prescribed class, conducted the interview, and that the specified details are true. The certificate is admissible as evidence of those facts, and in the absence of proof to the contrary is proof of them. Reasonable opportunity to view (reg 6) is defined by a specific procedure: at least three clear days written notice to the accused or counsel specifying at least two occasions during normal office hours and a place, and the interview must actually be available on those occasions. These concepts operate together to create a structured pathway for pre-recorded evidence that balances witness protection with the accused’s procedural fairness.

The regulations directly affect three groups: interviewers, accused persons, and the vulnerable witnesses themselves. Interviewers are the primary subjects of regulation. They must belong to the prescribed class, successfully complete approved training, and comply with the substantive interview requirements. This includes members of the Western Australian Police Force, authorised contractors, department officers, and interstate officers. The extension to contractors via reg 4A means private individuals or organisations could be brought within the scheme, though the Commissioner’s written authorisation is required. The training obligation imposes a cost on the police service and the department, both in designing and delivering courses and in ensuring ongoing compliance. Accused persons (and their counsel) gain a procedural right under reg 6: the prosecution must provide a reasonable opportunity to view the interview before trial. This is a tangible benefit for the defence, enabling preparation of cross-examination and challenges to admissibility. However, the regulation defines “reasonable opportunity“ with precision: three clear days notice, two specified occasions, normal office hours. If the prosecution fails to comply, the interview may not be admitted under the special procedure, forcing the alleged victim to give live evidence. This creates an incentive for the prosecution to manage disclosure carefully. Vulnerable witnesses - children and persons with mental impairment - are the intended beneficiaries, but the regulations do not confer enforceable rights on them. The protection is indirect: the interview must be conducted without leading questions as far as practicable, and for children under 12 there must be evidence of understanding or cognitive development. Breaching these requirements affects admissibility, not the witness’s personal remedy. Courts are affected because the regulations simplify the admissibility ruling. If the certificate is produced and the interview appears to comply, the judge may admit it without a voir dire into the interview conditions. The general public bears the cost of funding training, recording equipment, and administrative overhead, though the regulations themselves do not quantify that cost. Prosecution authorities must manage the logistics of notifying the accused and making the interview available; failure carries the risk that the interview is excluded. The regulations thus distribute compliance burdens unevenly: the defence gains a procedural entitlement, the prosecution bears the implementation risk, and the vulnerable witness is shielded from the adversarial process only if the state follows the rules.

The regulations create specific duties on interviewers and the prosecution, and corresponding rights for the accused. Interviewer’s duties: Under reg 7(1), the interviewer must certify that he or she is of the prescribed class and conducted the interview, and that the details in the certificate are true. Under reg 7(2), the certificate must specify sufficient details to identify the recording, the interviewer‘s name and contact details, and details showing the interviewer belongs to the prescribed class. Under reg 7(4), the interviewer must not give false or misleading information in the certificate. Under reg 5 and reg 6A, the interviewer must conduct the interview in the prescribed manner: avoiding leading questions as far as practicable, ensuring for children under 12 that the child appears to understand seriousness and truth-telling or has adequate cognitive development, and ensuring for persons with mental impairment that the person understands the seriousness and has adequate cognitive functioning. The interviewer must also ensure the recording documents date, place, identities of persons present, and any breaks. These are not aspirational; they are conditions precedent to the interview being admissible under s 106HA. Prosecution’s duty: Under reg 6, the prosecution must give the accused and counsel a reasonable opportunity to view the interview. This is defined as at least three clear days written notice specifying at least two occasions during normal office hours and a place, and the interview must be available on those occasions. The duty is on the prosecution to initiate the process; the accused does not have to request viewing. Accused’s rights: The accused has the right to be notified and to have the opportunity to view the interview. If the prosecution fails to provide that opportunity, the interview may be excluded (see s 106HB(2)(b) of the Evidence Act, which reg 6 implements). The accused also has the benefit of the certificate‘s rebuttable presumption: the certificate is evidence of its contents, and in the absence of proof to the contrary is proof. That means the accused can challenge the certificate’s accuracy, but bears the evidentiary burden. No explicit duties on the vulnerable witness: The regulations impose no obligation on the child or person with mental impairment to participate or to answer questions in any particular way. Their role is passive; the interviewer must adapt to their capacity. Right of the Commissioner: Under reg 4A, the Commissioner of Police may authorise persons engaged under a contract for services or otherwise to be relevant persons. This is a discretionary power, not a duty. Duty not to mislead: The penalty under reg 7(4) for giving false or misleading information in a certificate is $2,000, enforceable by prosecution. That duty applies to the interviewer personally. The regulations thus create a compliance architecture that depends on interviewer integrity, documentary proof, and procedural disclosure to the accused.

The regulations contain only one express penalty provision: reg 7(4) imposes a fine of $2,000 for giving false or misleading information in a certificate. This is a criminal penalty, enforceable in the ordinary summary jurisdiction. The amount ($2,000) is modest, reflecting the regulatory rather than punitive nature of the obligation. Enforcement would typically be initiated by police or the Director of Public Prosecutions if a certificate is discovered to contain false details. However, the main enforcement mechanism for the regulations is not penal but evidential. If the interview does not meet the prescribed requirements, or if the certificate is absent or defective, the interview will not qualify for automatic admission under s 106HA of the Evidence Act. That means the prosecution must either call the vulnerable witness live or rely on other evidence. The practical sanction is that non-compliance disadvantages the prosecution‘s case, not that it triggers a financial penalty. The $2,000 penalty is a backstop for deliberate misconduct, but the real deterrent is the risk of losing the evidentiary shortcut. The regulations do not create an offence of conducting an interview without being of the prescribed class; that is handled by the admissibility consequences. There is no penalty for the prosecution failing to give the accused a reasonable opportunity to view the interview - again, the sanction is evidential exclusion under s 106HB(2)(b). This is a characteristic of procedural regulations: compliance is incentivised by trial outcomes rather than by fines. A recurring liability risk for the interviewing officer is that a defence challenge to the certificate could lead to a voir dire and adverse credibility findings if the certificate contains errors. The $2,000 penalty is low enough that it may not deter a determined officer, but the reputational and career consequences of being found to have given false information are likely more significant. The regulations do not provide for any civil remedy for the accused or the vulnerable witness if the rules are breached. The only recourse is to object to admissibility. Enforcement therefore depends on the vigilance of defence counsel and the court’s discretion.

The regulations are made under the Evidence Act 1906 (WA), specifically Part XIA (ss 106A-106I). Section 106HA of that Act empowers the making of regulations prescribing classes of persons and requirements for interviews. These regulations give effect to that power. They do not replace or override the Evidence Act’s general provisions; they supplement them by providing the detail needed for the special admissibility regime to operate. The regulations also cross-reference other statutes. Regulation 3(1) defines “department“ as the department principally assisting in the administration of the Children and Community Services Act 2004. That Act governs child protection and out-of-home care in Western Australia, and its “officers” are automatically relevant persons under these regulations. The Police Act 1892 s 5 is referenced for the definition of Commissioner of Police. This means any amendment to those Acts (for example, redefining “officer“ in the Children and Community Services Act) would indirectly affect who qualifies as a relevant person under these regulations. The regulations also interact with the criminal procedure rules governing disclosure. Regulation 6 implements s 106HB(2)(b) of the Evidence Act, which requires the accused to have a reasonable opportunity to view the recording before it is admitted. That interacts with the general disclosure obligations in the Criminal Procedure Act 2004 and the prosecution’s common law duty of disclosure. The regulations do not create a new disclosure obligation; they specify what constitutes a reasonable opportunity for this particular type of evidence. The Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 is the amending Act that originally introduced the visual recording provisions into the Evidence Act; these regulations commenced on the same day. The Evidence Act 2025 (WA) has been assented to but is not yet in force. The compilation table notes that s 387(f) of that Act will amend or repeal these regulations. Once proclaimed, that Act may substantially re-write the evidence code, potentially replacing this delegated legislation with new provisions. Practitioners should monitor the commencement date. The regulations also have a potential interaction with the Criminal Investigation (Identifying People) Act 2002 and the Criminal Code where the substance of the interview may touch on identity or elements of the offence, but those are general evidential considerations, not specific statutory interactions. Overall, the regulations sit within a web of child protection, police governance, and criminal procedure law, and any change to those parent or sibling Acts can alter the practical operation of the regulations.

The regulations were originally made in 2004 as the Evidence (Visual Recording of Interviews with Children) Regulations 2004 and commenced on 1 January 2005. The first amendment came in 2008 (Gazette 11 March 2008, operative 12 March 2008). The 2008 amendment appears from the compilation table to have amended only regulation 6 (the notice provision for viewing by the accused). The precise changes are not set out in the source, but the amendment likely tightened the timing or notice requirements. The major substantive amendment occurred in 2014 (Gazette 20 May 2014, operative 21 May 2014). The 2014 amendments were extensive: the title was changed from “Children“ to “Children and Persons with Mental Impairment“; regulation 1 was amended to reflect the new citation; regulation 3 was amended to add definitions of “Commissioner of Police”, “department”, and “relevant person”, and to clarify the incorporation of definitions from s 106A; new regulation 4A was inserted to allow the Commissioner to authorise contractors; regulation 4 was rewritten to prescribe classes of persons, including interstate officers; new regulation 6A was inserted setting out interview requirements for persons with mental impairment; regulation 7 was amended to extend the certification obligation to interviews with mentally impaired persons; and the penalty in reg 7(4) was inserted or increased. The 2014 amendments effectively doubled the scope of the regulations. The compilation table notes that Reprint 1 (as at 1 August 2014) incorporates all amendments up to that date. Later, the Evidence Act 2025 (assented 25 September 2025) includes s 387(f) which will amend or repeal these regulations, but that provision is not yet proclaimed. The uncommenced provisions table indicates the Act is to be brought into force by proclamation. Until then, the 2014 version remains in effect. The amendment history shows a trajectory of expansion: from children only to vulnerable adults, and from police-only interviewers to authorised contractors. Each amendment increased the regulatory scope and the compliance burden. The 2008 amendment appears to have been procedural; the 2014 amendment was structural. Practitioners must ensure they are advising on the current version (as at 1 August 2014) and monitor the proclamation of the 2025 Act, which may overhaul the entire visual recording regime.

The source document provides no litigation history. No judicial decisions are cited, no case names are mentioned, and there is no indication that these regulations have been the subject of reported appellate scrutiny. This likely reflects the fact that the regulations are procedural and rarely contested in isolation; instead, challenges arise at trial regarding admissibility of a particular interview, and those challenges usually turn on the facts rather than the validity of the regulations themselves. It is possible that the regulations have been considered in intermediate appellate decisions in Western Australia, but the source does not disclose them. In the absence of source-grounded information, the safe statement is that the document does not record any litigation directly concerning the regulations. For a deep dive, it is worth noting that the equivalent provisions in other Australian jurisdictions have generated case law on what constitutes “leading questions” or “as far as is practicable”, but that is not in the source. Practitioners should research Western Australian decisions under s 106HA and s 106HB of the Evidence Act for judicial interpretation of the regulations. The compilation table and notes include only legislative material, not judicial. The lack of cited litigation does not mean no litigation exists; it means the drafter of the compilation did not include any. For the purposes of this analysis, we must confine ourselves to the source. Therefore, the litigation history must be recorded as: “The source does not provide any litigation history. No cases are cited or referenced.” This is not a failure of the regulations; it is a characteristic of the compiled version.

Several provisions in these regulations contain traps for the unwary. Leading questions “as far as is practicable” (regs 5(a) and 6A(a)) is a slippery standard. The phrase “as far as is practicable” introduces a reasonableness qualification, but it does not define what limits are excusable. An interviewer facing a reluctant child may resort to leading questions to elicit any response; a reviewing court may later find that the questioning crossed the line, and the interview loses its presumptive admissibility. The burden falls on the prosecution to show it was not practicable to avoid leading questions. Appearance of understanding for children under 12 (reg 5(b)) is subjective. The interviewer must ensure the child “appears to understand” that the interview is serious and that truth-telling is required. This depends on the interviewer’s perception and the recording. A child who appears confused or playful may disqualify the interview. There is no minimum age; a four-year-old might be interviewed, but the bar of apparent understanding will be hard to meet. Three clear days (reg 6(a)) is not elaborated. Does it exclude weekends and public holidays? The term “clear days” typically means that the day of notice and the day of viewing are not counted. Failure to calculate correctly could mean the notice period is invalid, and the interview is excluded. The prosecution must give at least two occasions for viewing; if one occasion is cancelled or the recording is not available, the notice is not effective. Certificate rebuttable presumption (reg 7(3)) means that if the interviewer certifies that he or she is of the prescribed class and conducted the interview correctly, that fact is taken as proved unless the accused adduces evidence to the contrary. This shifts the evidentiary burden to the defence. A defence lawyer who does not challenge the certificate at trial may lose the right to argue that the interviewer was not properly trained or that the interview was conducted improperly. False or misleading information penalty is only $2,000 (reg 7(4)). This is a low maximum fine, which may not adequately deter an interviewer from cutting corners. However, it is a strict liability offence? The regulation does not specify a mental element; “must not give any information that is false or misleading” likely requires proof of intent or recklessness, but the low penalty suggests a regulatory rather than criminal fault element. Interstate officers (reg 4(b)) are recognised if authorised under their own law. But their training may not align with Western Australian standards. A trial judge could still exclude the interview if the foreign training is inadequate, even if the officer meets the literal regulatory test. No requirement for independent adult present during the interview. There is no obligation to have a support person, lawyer, or guardian present for the vulnerable witness. The interviewer alone is responsible for ensuring compliance. This could lead to contested claims about coercion or misunderstanding. Recording must provide “all, or most, of the following information” (regs 5(c) and 6A(c)). The phrase “all, or most” allows some omissions. What constitutes “most”? A recording that omits break times or the identity of a person present may still be compliant, but the ambiguity invites litigation. Amendments not yet in force: The Evidence Act 2025 may repeal or replace these regulations. Practitioners relying on the current regulations risk being caught by a sudden proclamation. The uncommenced provisions table warns that s 387(f) is pending. Any new interview conducted after proclamation may need to comply with a different regime.

Compliance requires a systematic approach from the moment an interview is contemplated. First, confirm the interviewer’s qualification. The interviewer must be a relevant person (a police officer, an officer under the Children and Community Services Act, or a person authorised in writing by the Commissioner of Police under reg 4A). The interviewer must have successfully completed a training course provided by the Western Australian Police Service, the department, or a course approved in writing by the Commissioner. Interstate officers must be authorised under their own jurisdiction‘s law. Retain written evidence of completion of training and any authorisation letter. Second, conduct the interview in accordance with the prescribed requirements. Avoid leading questions. For a child under 12, ensure the child appears to understand the interview’s seriousness and the obligation to tell the truth, or that the child has sufficient cognitive development. For a person with mental impairment, ensure the person understands the seriousness and the truth obligation and has sufficient cognitive functioning. Document these aspects on the recording. Make the recording in a way that captures the date, time, place, identities of all persons present, and any breaks with times and reasons. Third, prepare and sign the certificate (reg 7). The certificate must identify the recording, state the interviewer‘s name and contact details, and provide details showing the interviewer is of the prescribed class (e.g., the training course completed or the authorisation). The certificate should be completed truthfully; false or misleading information attracts a $2,000 penalty. Retain a copy of the certificate with the recording. Fourth, manage disclosure to the accused. At least three clear days before the trial or hearing, the prosecution must give written notice to the accused or counsel specifying at least two occasions during normal office hours when the interview may be viewed, and the place. The interview must actually be available on those occasions. The prosecution should create a written record of the notice given and confirm that the interview was viewable. Fifth, monitor legislative changes. The Evidence Act 2025 may soon alter these requirements. Check the WA legislation website for proclamation dates. If the Act is proclaimed, new training, certification, or interview standards may apply. Sixth, training and auditing. Police and department managers should periodically audit interviews to ensure interviewers are not drifting into leading questions. Refresher training is advisable. The low penalty for false certificates does not mean the risk is low; an excluded interview can wreck a prosecution. Finally, defence counsel’s compliance opportunity: for accused persons, compliance means examining the certificate and the recording schedule. If the notice under reg 6 is defective, object immediately. If the certificate appears false or incomplete, cross-examine the interviewer or call evidence to rebut the presumption. If the interview shows leading questions or lack of apparent understanding, challenge admissibility under s 106HA. Compliance is not a one-time act; it is an ongoing process of training, documentation, and procedural fairness.