Evidence (Visual Recording of Interviews with Children) Regulations 2004

The core concepts in these regulations are the visually recorded interview, the prescribed class of persons, the prescribed requirements, the opportunity to view, and the certificate. A visually recorded interview is a recording (presumably video and audio) of a person being questioned about a relevant offence. The content of the interview is not regulated directly beyond the prohibition on leading questions and the requirement that the child or person with mental impairment demonstrates an understanding of the obligation to tell the truth and a capacity to give an intelligible account. That is a notable constraint: the interviewer must not only avoid the common practice of using leading questions (which tend to elicit the answer the questioner wants), but must also ensure the interviewee appears to grasp the seriousness of the occasion. For children under 12, there is an alternative: if the child cannot grasp the seriousness, the interviewer may proceed if the child has a sufficient level of cognitive development to understand and respond rationally. This is a pragmatic concession that very young children may not understand the concept of truth in an abstract sense but can still give reliable evidence. For persons with a mental impairment, the requirement is only the first pathway (understanding seriousness and telling the truth), with no alternative for cognitive development alone. That reflects a legislative assumption that mental impairment is not a transient developmental stage but a more permanent state.

The prescribed class of persons is defined by reference to a “relevant person”. That term covers members of the Police Force, officers of the department administering the Children and Community Services Act 2004, and any person authorised in writing by the Commissioner of Police. The 2014 amendment also allowed the Commissioner to authorise persons engaged under a contract for services, bringing in private contractors. This opens the door to outsourcing interview work, but it also raises questions about the training and independence of such contractors. To be in the prescribed class, a relevant person must have successfully completed a training course provided by the WA Police Force, the department, or approved by the Commissioner. Alternatively, a person from another Australian police service who is authorised under a corresponding law of that jurisdiction is also deemed to be in the class. That is a recognition that police officers from other states may need to conduct interviews for Western Australian proceedings, avoiding the need for double training.

The prescribed requirements are divided into two categories: substance and administration. Substantively, the interview must avoid leading questions as far as is practicable. The phrase “as far as is practicable” introduces some flexibility: it is not an absolute prohibition. Practicability would take into account the age, cognitive state and cooperativeness of the interviewee. Administratively, the recording (or the conduct of the interview) must provide all or most of the following: the date, the place, the identities of everyone present throughout, and any breaks with times and reasons. “All or most of” is another flexible standard. A failure to record a five‑minute break might not sink the interview’s admissibility, but systematic omissions could.

The opportunity for the accused to view the interview is defined by regulation 6. It is deemed to have been given if the prosecution gives at least three clear days written notice specifying at least two viewing occasions during normal office hours and the interview is actually available at that place on those occasions. This is a low‑threshold test: it does not require that the accused actually views it, only that a reasonable opportunity was provided. The accused’s choice not to view does not generally prejudice the admissibility of the recording.

The certificate is a formal document prepared by the interviewer. It must state that the interviewer is of the prescribed class and conducted the interview, and that the details in the certificate are true and correct. The certificate must specify details that identify the recording, the interviewer’s name and contact details, and details showing the interviewer is of the prescribed class. Critically, the certificate is admissible as evidence of those facts in the absence of proof to the contrary. That means the prosecution can prove the foundational elements without calling the interviewer live, unless the accused adduces contrary evidence. This is a significant procedural shortcut, but it also means that any error in the certificate can be exploited by the defence to challenge admissibility.

The primary classes of persons directly regulated are interviewers, accused persons, children, and persons with a mental impairment. Interviewers may be police officers, departmental officers, or contractors authorised by the Commissioner. Anyone who falls into the prescribed class must complete the training course and comply with the substantive and administrative requirements when conducting the interview. The effect on them is that they must invest time and resources in training, and must exercise discipline during the interview to avoid leading questions and to capture the administrative details. For police, this is an additional layer of procedure on top of ordinary investigative interviewing. For departmental officers, it is a specialised task that may pull them away from their usual duties. For contractors, it creates a new market for interview services, but also a potential for liability if they fail to meet the standard.

Accused persons are affected because their ability to confront the witness at trial is circumscribed. They are given the right to view the recording beforehand, but that is not the same as being able to cross‑examine a live witness. The recording becomes the evidence in chief, and cross‑examination at trial still occurs, but the witness is not necessarily present; in many cases the witness will still give evidence live (especially if the recording is challenged), but the scheme is designed to allow the recording to replace live testimony in chief. The accused’s defence may be more difficult if the interviewer elicits narrative rather than being able to test the account in real time. On the other hand, the accused gains the benefit of seeing the complainant’s original account before it has been rehearsed or influenced by court preparation.

Children and persons with a mental impairment are the subjects of the interview. The stated aim is to reduce the trauma of giving evidence, but the regulations impose a procedural framework that must be navigated. A child who is unable to demonstrate an understanding of the obligation to tell the truth may still be interviewed if they have sufficient cognitive development, but that is a judgement call for the interviewer. A person with a mental impairment must show that understanding, with no alternative pathway. That could exclude some individuals who cannot understand the abstract concept of truth but can still relate factual information. The regulations do not address who makes that assessment or what evidence is required. The compliance burden falls on the interviewer to make a real‑time judgement, with the risk that a court later finds the interview inadmissible.

The department (Children and Community Services) is affected because its officers are authorised to conduct interviews and provide training. That creates an administrative cost and a potential service gap if officers are diverted to interview work. The Commissioner of Police is affected because he must authorise persons (including contractors) and approve training courses. That involves an administrative burden and a liability risk if an unauthorised person conducts an interview.

The central duty is on the interviewer to conduct the interview in compliance with the substantive and administrative requirements. That includes a duty to avoid leading questions as far as is practicable, a duty to ensure the interviewee demonstrates understanding and cognitive capacity (for children under 12, an alternative standard exists), and a duty to record or conduct the interview so that the key administrative details are captured. The phrase “as far as is practicable” gives the interviewer some latitude, but a court may later assess whether the degree of leading was acceptable in the circumstances. The duty is not a strict liability standard, but it carries consequences: if the requirements are not met, the court may exclude the recording under section 106HA of the Act.

A separate duty arises under regulation 7: the interviewer must certify. The certificate must contain the prescribed details and must not contain false or misleading information. Giving false information is an offence punishable by a $2,000 fine. That imposes a positive obligation on the interviewer to verify the information they are certifying. It creates an incentive to be meticulous at the time of the interview, because errors cannot be corrected later without risking the certificate’s integrity.

The accused has a right under regulation 6 to be given a reasonable opportunity to view the interview before it is admitted at trial. This right is procedural and is deemed satisfied if the prosecution gives at least three clear days written notice specifying at least two occasions during normal office hours, and the interview is actually available on those occasions. The notice must be in writing. The accused does not have a right to a copy of the recording under these regulations, only to view it at the specified place and times. That may inconvenience the accused if they are in custody or if legal aid funding is limited. The right is also not absolute: if the accused is absent or cannot attend, they must rely on their counsel. The regulation does not require that the accused personally view it, only that a reasonable opportunity is provided.

The court retains a residual right under the Act to exclude the recording even if the regulations are fully complied with. The regulations do not override the court’s power to ensure a fair trial. The accused also retains the right to challenge the interview’s admissibility on other grounds, such as the manner of questioning being oppressive or the interviewee being incapable of giving an intelligible account. Those challenges are not pre‑empted by compliance with the regulations.

The only penalty specified in these regulations is the $2,000 fine for giving false or misleading information in the certificate (regulation 7(4)). That is a relatively modest sum for a false statement, particularly given that the consequences of a false certificate could be the wrongful admission of evidence or the undermining of a conviction. The penalty is not indexed and has not been updated since 2004 in the original regulation. It is a summary offence, likely dealt with in the Magistrates Court. There is no express power to impose a custodial sentence, so the maximum penalty is financial. Whether this is a sufficient deterrent is an open question: the direct cost of non‑compliance to an interviewer (especially a police officer) may be lower than the career and reputational damage from a complaint, but for a contractor the fine is a direct business cost.

Enforcement of the substantive requirements (leading questions, cognitive assessments, administrative details) is not directly penalised; instead, non‑compliance goes to admissibility. That is a more effective sanction because it directly affects the prosecution’s case. If the interview is excluded, the witness may have to give live evidence, or the case may collapse. This creates an ex ante incentive for interviewers to comply, but it also gives the defence a powerful lever to challenge the recording. The regulations do not specify who bears the burden of proof on compliance; under the Act, the prosecution likely bears the burden of satisfying the court that the interview meets the requirements. The certificate is admissible as evidence of the facts, which shifts an evidential burden onto the accused to produce contrary evidence. That is a real but limited shift: the accused can still cross‑examine the interviewer or call expert evidence to show the leading questions were not avoided as far as practicable.

There is no enforcement body named in the regulations. The Commissioner of Police has the power to authorise persons, and presumably to revoke authorisation if they breach the requirements. The Department of Communities may also take disciplinary action against its officers. The false‑certificate offence is likely prosecuted by the Police or the Department of Public Prosecutions. There is no requirement for independent audit or oversight of the interviews. The system relies heavily on the integrity of individual interviewers and the adversarial process.

The regulations sit under the Evidence Act 1906, specifically sections 106HA and 106HB. Section 106HA sets out the conditions under which a visually recorded interview may be admitted. The regulations complete that section by prescribing the class of persons, the requirements, and the extent to which they must be met. Section 106HB deals with the procedure for admitting the recording and the right of the accused to view it. The regulations flesh out what constitutes a reasonable opportunity to view. These provisions are part of Part IIIA of the Act, which deals with sexual offences and other evidence. The regulations do not amend the Act itself; they are delegated legislation.

The Evidence Act 2025 has been passed and is awaiting proclamation. Its section 387(f) is noted in the compilation as an uncommenced provision that will affect these regulations. At the time of the source, no commencement date is set. Practitioners should watch for that Act, which may repeal or replace these regulations. Given that the 2025 Act is a major rewrite of evidence law, the interview scheme may be substantially altered.

The regulations also interact with the Children and Community Services Act 2004. The word “department” in the regulations is defined as the public service department principally assisting in the administration of that Act. Officers of that department are authorised to conduct interviews and to provide training. The regulations thus create a cross‑referencing between the Evidence Act and the child protection legislation, which may raise issues of confidentiality and dual roles. An officer who investigates child protection matters may also conduct an evidentiary interview; the regulations do not erect a Chinese wall between those functions.

The Police Act 1892 is relevant because the Commissioner of Police is appointed under that Act. The Commissioner has the power to authorise persons under regulation 4A and to approve training courses. That creates a degree of central control over who may conduct interviews, but it also means the process is subject to the policies and priorities of the Police Force, not an independent body.

The regulations do not mention the Criminal Procedure Act 2004, the Bail Act 1982, or the Sentencing Act 1995, but they will inevitably interact with those Acts. For example, if a child’s recorded interview is admitted, it may affect the progress of the trial, the need for the child to be present, and the ability of the court to hear evidence in the accused’s absence. The regulations operate as a procedural overlay, not as a standalone code.

The regulations were originally made in 2004 as the Evidence (Visual Recording of Interviews with Children) Regulations 2004. They commenced on 1 January 2005, the same day as the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004. The original scope was limited to children. The first substantive amendment occurred in 2008, when regulation 6 (the viewing opportunity) was amended. That amendment took effect on 12 March 2008. The text of the 2008 amendment is not fully reproduced, but it changed the structure of the reasonable opportunity provision from a single viewing occasion to a requirement of at least two occasions, and introduced the three clear days notice requirement. That change made the prosecution’s burden slightly heavier, giving the accused more flexibility in arranging to view the interview.

The most significant amendment came in 2014. The regulations were renamed (via a note) to include “and Persons with Mental Impairment” in the title. Regulation 4 was amended to extend the prescribed class to cover interviews with persons with mental impairment. New regulation 6A was inserted, setting out the prescribed requirements specific to that cohort. Regulation 4A was inserted, allowing the Commissioner to authorise persons under a contract for services. Regulation 7 was amended to include references to persons with mental impairment and to increase the penalty for false certification from the previous amount (which was not stated in the source but implied by the “amended” note) to $2,000. The 2014 amendments commenced on 21 May 2014.

The compilation table notes that a reprint was prepared as at 1 August 2014, incorporating all amendments. The uncommenced provisions table shows that the Evidence Act 2025, assented to on 25 September 2025, contains a provision (s. 387(f)) that will affect these regulations. That Act is not yet in force, and the nature of the amendment is not specified. It is possible that the entire regulation‑making power will be repealed or replaced. Practitioners should monitor the commencement of the Evidence Act 2025 and any transitional provisions.

There is no evidence of any amendment between 2014 and 2025. The regulations have been stable for over a decade.

The source provides no litigation history. The regulations are procedural and are unlikely to have generated a large body of case law directly on their interpretation. However, the underlying provisions of the Evidence Act (sections 106HA and 106HB) have been considered by the Western Australian courts in the context of admissibility challenges. Typical issues include: whether the interview was conducted in accordance with the regulations, whether the accused was given a reasonable opportunity to view, and whether the requirements for the certificate were met. The regulations themselves are subordinate legislation, so appellate courts would interpret them de novo. Given the lack of source material, it is not possible to specify any particular case. A practitioner would need to conduct a separate search. The absence of cited cases does not mean the regulations are uncontroversial; it may mean that courts deal with the issues under the Act rather than under the regulations directly.

Several provisions contain subtle traps for the unwary. First, the requirement to avoid leading questions “as far as is practicable” is not a fixed standard. What is practicable will depend on the circumstances, including the age and cognitive state of the interviewee. An interviewer who asks a child “Did daddy hurt you?” is likely leading; but asking a non‑verbal child with severe intellectual disability may be the only way to get any response. A court may tolerate more leading for such a witness than for a neurotypical 12‑year‑old. The risk is that the interviewer must self‑assess practicability in real time, and later a judge may disagree. There is no safe harbour.

Second, the “all or most of” standard for administrative details (date, place, identities, breaks) is vague. A recording that captures only the date and place but omits the identity of a person who entered the room briefly might be held to provide “most” of the information. But a recording that omits the reason for a break (e.g., “break for lunch”) might be held insufficient. The burden is on the prosecution to justify why only “most” was captured.

Third, the certificate is admissible as evidence of the facts, but only in the absence of proof to the contrary. If the defence calls the interviewer and shows an inconsistency, the certificate loses its evidentiary value. The accused can also cross‑examine the interviewer on the certificate. The penalty for false statements is only $2,000, which may be a small deterrent for a police officer or contractor under pressure to make a case. However, the professional consequences could be much larger, including disciplinary action and potential impeachment of the interviewer’s credibility in future cases.

Fourth, the opportunity to view under regulation 6 is deemed to have been given if the prosecution gives notice and makes the interview available. But the regulation does not require the interview to be provided in a digital format that the accused can take away. The accused’s counsel may have to attend a police station during office hours, which could be difficult if the counsel is based in a different town or if the accused is in custody. The “at least two occasions” requirement is minimal; if both occasions are at times the accused cannot attend (e.g., because of work or medical appointments), the accused may argue the opportunity was not reasonable. The regulation does not specify how far in advance the occasions must be set; “3 clear days” notice applies to the notice, not to the viewing dates themselves.

Fifth, the 2014 extension to persons with a mental impairment introduces a requirement that the person “understands that the giving of evidence is a serious matter and that the person must tell the truth”. There is no alternative pathway for those who cannot understand these abstract concepts, unlike the child under 12 who can show cognitive development alone. A person with a significant intellectual disability who can give a coherent account but does not grasp the concept of truth may be excluded from the scheme entirely. That could force that person to give live evidence if the interview is not admissible.

Sixth, the regulations do not specify what qualifies as a “training course” approved by the Commissioner. An interviewer may believe they have completed an approved course, but the course may not have covered the specific requirements for interviews with mentally impaired persons. A future challenge could focus on the adequacy of the training.

Seventh, the certificate must specify “details showing that the person is of a class prescribed”. That could be as simple as stating their rank or role, but if the interviewer is a contractor, they must have written authorisation from the Commissioner. If that authorisation is not in effect at the time of the interview, the certificate is false, and the interview may be inadmissible.

Eighth, the regulation 5 requirement for children under 12 includes two alternative pathways: (i) the child appears to understand the seriousness and truth obligation, or (ii) the child has a cognitive development level that enables an intelligible account. The interviewer must decide which pathway applies. If they choose the cognitive development pathway but it later emerges that the child did not understand the truth obligation, the interview may be excluded if the court finds pathway (i) was the only applicable one. The regulation does not say which is primary; the interviewer should document the basis for their choice.

Compliance involves a sequence of steps before, during and after the interview. Before the interview, the person conducting it must ensure they are of the prescribed class. That means they have either completed an approved training course (provided by WA Police, the department, or approved by the Commissioner) or are a police officer from another jurisdiction authorised under a corresponding law. A contractor must have written authorisation from the Commissioner. The training course should cover the substantive requirements (avoiding leading questions, assessing cognitive understanding) and the administrative requirements (recording date, place, identities, breaks). The interviewer should keep a copy of their training certificate and any authorisation letter.

During the interview, the interviewer must conduct it in a manner that avoids leading questions as far as is practicable. This requires careful phrasing: open‑ended questions like “What happened next?” are safe; “Did he hit you?” is leading. For a child under 12, the interviewer must either ensure the child appears to understand the seriousness and truth obligation (which may involve asking simple questions about truth and lies) or be satisfied that the child has the cognitive development to give an intelligible account. For a person with a mental impairment, only the understanding pathway is available; the interviewer should ask preparatory questions to assess that understanding. The interviewer must also capture, in the recording itself or in a contemporaneous note, the date, the place, the identities of everyone present (including any breaks in attendance), and any breaks with times and reasons. It is safest to have someone note the times and reasons for breaks and state them on the record. The “all or most of” standard means that missing one element may be acceptable, but the interviewer should aim to record all.

After the interview, the interviewer must prepare and sign a certificate. The certificate must identify the recording (case file number, date, interviewee), the interviewer’s name and contact details, and details showing they are of the prescribed class (e.g., “I am a member of the Police Force of Western Australia, rank Senior Constable, trained in interviewing children under the Evidence Act 1906”). The interviewer must certify that they are of the prescribed class and that they conducted the interview, and that the details are true and correct. The certificate should be dated and attached to the recording. The penalty for false information is $2,000, so the interviewer must verify all facts, especially if another officer assisted or if breaks were not recorded.

The prosecution then must give the accused and their counsel at least three clear days written notice of at least two occasions during normal office hours when the interview may be viewed, specifying the place. The interview must actually be available at that place on those occasions. It is prudent to keep a record of the notice and any acknowledgment of receipt. The accused does not have to view it, but the prosecution must provide the opportunity. If the accused is in custody, arrangements must be made for them to attend the viewing location.

At trial, the prosecution relies on the certificate to prove the foundational requirements unless the defence challenges it. If the defence raises evidence that the requirements were not met, the prosecution may need to call the interviewer live. Therefore, the interviewer should maintain detailed notes that can be produced if challenged. The regulations do not require a particular record‑keeping format, but contemporaneous notes are best.

Finally, the interviewer should be aware that the Evidence Act 2025 may soon replace the current scheme. Compliance with the current regulations is only safe until that Act commences. Practitioners should monitor the WA legislation website for the proclamation date and any transitional provisions.