Part 17Recording of interviews

Part 17—Recording of interviews Division 1—Interpretation 74C—Interpretation interview includes— (a) a conversation; or (b) part of a conversation; or (c) a series of conversations, but does not include an examination under the Independent Commission Against Corruption Act 2012; investigating officer means— (a) a police officer; or (ab) an investigator under the Independent Commission Against Corruption Act 2012; or (b) a person authorised under an Act to investigate offences and arrest suspected offenders. Division 2—Recording interviews with suspects 74D—Obligation to record interviews with suspects (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with: (a) if it is reasonably practicable to make an audio visual record of the interview, an audio visual record of the interview must be made; (b) if it is not reasonably practicable to make an audio visual record of the interview but it is reasonably practicable to make an audio record of the interview, an audio record of the interview must be made; (c) if it is not reasonably practicable to make either an audio visual record or audio record of the interview— (i) a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and (ii) as soon as practicable after the interview, the record must be read aloud to the suspect and an audio visual record made of the reading; and (iii) when the audio visual recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and (iv) if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and (v) at the end of the reading, but while the audio visual recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and (vi) if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview. (2) If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer's obligations under subsection (1) arise at that point and apply to the interview from that point. (3) In deciding whether it is reasonably practicable to make an audio visual record or audio record of an interview, the following matters must be considered: (a) the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed; (b) mechanical failure of recording equipment; (c) a refusal of the interviewee to allow an audio visual record or audio record of the interview to be made; (d) any other relevant matter. (4) As soon as practicable after an audio visual record or audio record of an interview is made under this Part, the investigating officer must give the suspect a written statement— (a) if an audio visual record was made—of the right of the suspect or the suspect's legal adviser (or both) to view the recording and to obtain from the audio visual record an audio record; or (b) if an audio record but no audio visual record was made—of the right of the suspect to obtain a copy of the audio record. (5) Arrangements must be made, at the request of a suspect, for the playing of an audio visual record at a reasonable time and place to be nominated by an appropriate investigating officer. (6) A suspect must be provided, on request and on payment of the fee fixed by regulation, with— (a) an audio record of the audio visual record of an interview with the suspect under this Division; or (b) a copy of an audio record of an interview with the suspect under this Division. 74E—Admissibility of evidence of interview (1) In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless— (a) the investigating officer complied with this Division; or (b) the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance. (2) If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must— (a) draw the jury's attention to the non-compliance by the investigating officer; and (b) give an appropriate warning in view of the non-compliance, unless the court is of the opinion that the non-compliance was trivial. Division 3—Recording interviews with certain vulnerable witnesses 74EA—Application and interpretation (1) This Division applies to a person being interviewed as a potential witness who is— (a) a child of or under the age of 14 years; or (b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. (1a) This Division also applies to a person (not being a person described in subsection (1)) who is being interviewed as the victim of an alleged child sexual offence. (2) In this Division— child sexual offence means a sexual offence committed in relation to a person under the age of 18 years; serious offence against the person means— (a) murder or attempted murder; or (b) manslaughter or attempted manslaughter; or (c) a sexual offence; or (d) — (ai) an offence of criminal neglect under section 14 of the Criminal Law Consolidation Act 1935; or (i) an offence of stalking and harassment under section 19AA of the Criminal Law Consolidation Act 1935; or (ii) an offence of causing serious harm under section 23 of the Criminal Law Consolidation Act 1935; or (iia) an offence of causing harm under section 24 of the Criminal Law Consolidation Act 1935; or (iii) an offence involving an unlawful threat to kill or endanger life; or (iv) an offence involving abduction; or (v) an offence involving blackmail; or (vi) an attempt to commit, or assault with intent to commit, any of the offences in the preceding subparagraphs; or (e) an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or (f) an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921; sexual offence means— (a) rape; or (b) compelled sexual manipulation; or (c) indecent assault; or (d) any offence involving unlawful sexual intercourse or an act of gross indecency; or (e) incest; or (f) any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or (g) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or (h) any attempt to commit, or assault with intent to commit, any of the foregoing offences. 74EB—Obligation to record interviews with certain vulnerable witnesses If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows: (a) an audio visual recording of the interview must be made in accordance with the regulations; (b) the interview must be conducted by a prescribed interviewer; (c) the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent. 74EC—Admissibility of evidence of interview (1) In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed interviewer and a person to whom this Division applies is inadmissible unless— (a) the prescribed interviewer complied with this Division in relation to the conduct and recording of the interview; or (b) the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non‑compliance. (1a) If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of any other offence, evidence of the interview may be admissible under section 13BA of the Evidence Act 1929 if— (a) an audio visual recording of the interview is made in accordance with the regulations; and (b) the interview is conducted by a prescribed interviewer; and (c) the manner in which the interview is conducted meets the prescribed requirements to the prescribed extent. (1b) If a prescribed interviewer's conduct and recording of an interview does not meet the requirements of subsection (1a)(c), the court may nevertheless admit evidence of the interview if satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non‑compliance. (2) If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b) or (1b), the court must— (a) draw the jury's attention to the non‑compliance by the prescribed interviewer; and (b) give an appropriate warning in view of the non‑compliance, unless the court is of the opinion that the non‑compliance was trivial. Division 4—Miscellaneous 74F—Prohibition on playing recordings of interviews A person must not play to another person an audio visual record or audio record of an interview or part of an interview made under this Part except where the recording is played— (a) for purposes related to the investigation of an offence; or (b) for the purposes of, or purposes related to, legal proceedings, or proposed legal proceedings, to which the interview is relevant; or (c) with the permission of a court before which the recording has been tendered in evidence1. 1 For example, the court might permit the use of a recording for the purpose of instructing investigating officers in relation to duties under this Division. 74G—Non-derogation This Part does not— (a) make evidence admissible that would otherwise be inadmissible; or (b) affect the court's discretion to exclude evidence. 74H—Regulations (1) The Governor may make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this Part. (2) Without limiting the generality of subsection (1), the regulations may— (a) prescribe a person or class of persons to be a prescribed interviewer for the purposes of section 74EB by reference to the office or position held by the person, or the person's training or experience, or any combination of those criteria; and (b) make provision for a person to whom Division 2 or 3 applies to be accompanied during an interview by a person of a prescribed class for the purposes of providing emotional support, or communication assistance or any other assistance, during the interview; and Communication assistance may, for example, be provided by means such as a communication partner or by using a device (such as a speak‑and‑spell communication device). (c) prescribe requirements to be met for the purposes of section 74EB, and the extent to which they are to be met, if section 74EC is to apply to an audio visual record of an interview with a person to whom Division 3 applies; and (d) regulate the playing, broadcasting, publishing, custody, possession, storage, copying, transcription, erasure or destruction of an audio visual record of an interview; and (e) prescribe the records that are to be kept in relation to an audio visual record of an interview; and (f) make provision for access to and the use of an audio visual record for any of the following purposes: (i) for purposes related to the investigation of an offence; (ii) for the purposes of, or purposes related to, legal proceedings or proposed legal proceedings; (iii) for training persons for the purposes of Division 3; (iv) for the purposes of reviewing, assessing and evaluating the conduct of interviews under this Part; (v) for any other purpose; and (g) fix fines, not exceeding $5 000, for offences against the regulations.