Pre-recorded evidence

26.154 In the following discussion pre-recorded evidence refers to evidence recorded before the trial and replayed at the trial. The focus of the Commissions’ interest in pre-trial processes in sexual offence proceedings is on reform to reduce the trauma caused to complainants of sexual assault. In this context, the use of pre-recorded evidence is important because it may lessen or eliminate the need for complainants to give evidence in person at the trial.^[208]

26.155 Pre-recorded evidence used in criminal proceedings can be categorised into recordings of:

• the initial interview between police and the witness (evidence of interview); and

• other evidence given by the witness.^[209]

26.156 Federal, state and territory legislation provides for the use of pre-recorded evidence in criminal hearings and trials.^[210] Such legislation applies to the use of pre-recorded evidence in sexual offence proceedings, and may apply to other criminal proceedings.^[211]

26.157 The provisions generally apply to child witnesses and witnesses who are ‘cognitively’ or ‘intellectually’ impaired. In some jurisdictions, however, the provisions extend to any ‘special’ witness who requires protection^[212] or all witnesses who are complainants of sexual assault.^[213]

Evidence of interview

26.158 Evidence of interview refers to audiovisual recordings of an interview or interviews with the victim, which are typically done shortly after the complaint is initially disclosed. The person is interviewed by police or child protection workers, the interview is recorded, and the recording of the interview is played at the hearing or trial as the person’s evidence-in-chief. This method of taking pre-recorded evidence applies, for example, under federal, NSW and Victorian legislation.^[214]

26.159 In NSW, legislation provides that a ‘vulnerable person is entitled to give, and may give, evidence in chief of a previous representation … made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made’.^[215] Similarly, in Victoria, legislation provides that a ‘witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions’ put to him or her by a member of Victoria Police, or other person authorised in writing by the Chief Commissioner of Police who has successfully completed a training course on the relevant procedures.^[216]

26.160 These provisions do not apply to all witnesses in sexual offence proceedings. The Commonwealth provisions apply only to child witnesses, and the NSW and Victorian provisions to children and cognitively impaired witnesses.^[217] In the Northern Territory, however, a ‘recorded statement’ of interview of a witness—including any witness who is the alleged victim of a sexual offence to which the proceedings relate—may be admitted in evidence as the witness’ evidence in chief.^[218]

Other pre-recorded evidence

26.161 Other evidence given by witnesses in sexual offence proceedings may also be pre-recorded. This may involve the pre-recording of part or the entirety of a witness’ evidence. For example, at a pre-trial hearing the witness may give evidence via closed-circuit television from a remote room. The judge, prosecutor, defence lawyer and accused are all in the courtroom. There is no jury. The witness gives evidence, may be cross-examined and re-examined, and this is recorded. Some months later the trial is held. The witness does not attend the trial, and the jury is played the recording of the witness’ evidence.

26.162 Similar methods of taking pre-recorded evidence apply under Queensland, South Australian, Victorian, Western Australian, ACT and Northern Territory legislation.^[219]

26.163 In Victoria, the whole of the evidence—including cross-examination and re-examination—of young^[220] or cognitively impaired complainants in sexual offence proceedings must be given at a special hearing, recorded as an audiovisual recording, and presented to the court in the form of that recording.^[221] This has become known as the ‘VATE’ process (video or audio taping of evidence). The VATE recording is admissible in evidence as if its contents were the direct testimony of the complainant in the proceeding.^[222]

26.164 At the special hearing, the accused and his or her legal practitioner are to be present in the courtroom, but the accused is not to be in the same room as the complainant when the complainant’s evidence is being taken. Rather, the accused is entitled to see and hear the complainant while the complainant is giving evidence (using closed-circuit television (CCTV) or other facilities) and to have at all times the means of communicating with his or her legal practitioner.^[223]

26.165 Some legislation deals with both forms of pre-recorded evidence—pre-recorded evidence of interview; and other evidence. For example, in the ACT, audiovisual recordings of a witness answering questions of a ‘prescribed person in relation to the investigation of a sexual or violent offence’ may be admitted as evidence.^[224] In addition, prosecution witnesses in relation to sexual offence proceedings may give evidence in chief at a pre-trial hearing and an audiovisual recording of this evidence may be admitted as the witness’ evidence at the trial.^[225]

26.166 While the Victorian VATE provisions apply only to young or cognitively impaired complainants in sexual offence proceedings, in other jurisdictions, adult complainants of sexual assault may also be covered in some circumstances. For example, the Queensland and Western Australian provisions apply to any ‘special witness’, defined to include any person who in the court’s opinion would be likely to suffer severe emotional trauma or be likely to be so intimidated as to be disadvantaged as a witness, if required to give evidence in accordance with the usual rules and practice of the court.^[226]

26.167 In South Australia, pre-recorded evidence may be used in relation to the evidence of a witness who is the alleged victim of a sexual offence to which the proceedings relate; and ‘in any other case—where, because of the circumstances of the witness or the circumstances of the case, the witness would, in the opinion of the court, be specially disadvantaged if not treated as a vulnerable witness’.^[227] The Northern Territory extends the coverage of its provisions to any witness who is the alleged victim of a sexual offence to which the proceedings relate.^[228]

Benefits and drawbacks

26.168 Pre-recorded evidence has been described as offering the following benefits:

• improving the quality of evidence;^[229]

• facilitating pre-trial decisions by the prosecution and the defence;

• helping with the scheduling and conduct of the trial; and

• minimising system abuse of witnesses.^[230]

26.169 The drawbacks to pre-recorded testimony are said to include that:

• it is unfair to require the defence to cross-examine the main prosecution witness before the formal trial has begun;

• defence lawyers are concerned that they cannot prepare to cross-examine the most important prosecution witness until shortly before the trial is scheduled;

• video technology lacks the immediacy and persuasiveness of a witness’ live-in-court testimony; and

• there can be problems with the technology.^[231]

26.170 Other possible disadvantages include that the quality of the evidence is overly dependent on the skills of the interviewer, the evidence may be insufficiently tested by cross-examination, the witness may have to undergo multiple interviews to give a full account of the complaint and may suffer more stress and trauma where cross-examination is not preceded by giving evidence-in-chief in court.^[232] In this context, Women’s Legal Services NSW stated that complainants should be advised of any

possible disadvantages (including any possible effect of tendering pre-recorded material on the persuasiveness of the evidence, the experience of being cross-examined ‘cold’ without giving evidence in chief, potential delays etc) prior to the tendering of the evidence-in-chief. It is important that the complainant is advised they have a choice and can make an informed decision.^[233]

Consultation Paper

26.171 In the Consultation Paper, the Commissions proposed that federal, state and territory legislation should allow the tendering of pre-recorded evidence of interview and other pre-recorded evidence of child victims of sexual assault and victims of sexual assault who are vulnerable as a result of mental or physical impairment. The Commissions also proposed that any adult victim of sexual assault be permitted to give pre-recorded evidence, by order of the court.^[234] Governments should, it was proposed, ensure that participants in the criminal justice system receive comprehensive education in relation to interviewing victims of sexual assault and creating pre-recorded evidence.^[235]

26.172 Stakeholders expressed support for extending the potential use of pre-recording to evidence given by all adult complainants of sexual assault,^[236] and for appropriate education and training to encourage such use.^[237]

26.173 Northern Territory stakeholders stated that pre-recorded evidence is often used in sexual offence proceedings in the Territory, including for adult complainants in remote communities, and that these procedures are generally operating well.^[238]

An advantage of the pre-recording of complainants’ evidence in sexual cases is that if it is strong, there is an opportunity for the case to settle by way of a plea without the need for a jury trial, and if it is weak there is an opportunity for the charges to be withdrawn, without the need for a jury trial.^[239]

26.174 The use of pre-recorded evidence was seen as important in increasing reporting of offences against Indigenous women in Central Australia and reducing the trauma attributable to giving evidence on multiple occasions and seeing the defendant in court.^[240]

26.175 NASASV submitted that legislation should allow for the use of pre-recorded evidence, while not making it the only possible option:

For example, a fourteen year old girl who recently reported a sexually abusive man to police expressed a strong desire to give evidence in court, in his presence. Her healing and her court case may be strengthened by the opportunity to do so, rather than to provide evidence via video recording.^[241]

26.176 While one advantage of pre-recording evidence of interview is to address forensic disadvantage caused by delay between the making of the complaint and the trial,^[242] one stakeholder also noted that, where trials are held expeditiously, it may not be as worthwhile to pre-record evidence.^[243] The NSW DPP opposed routine pre-recording of evidence:

Given that trials in NSW do proceed relatively expeditiously and any wholesale change to a system of pre-recording would, by adding an extra step, delay the final outcome, we are not in support of this change.^[244]

26.177 The Public Defenders Office NSW doubted whether, in NSW, cross-examination of children in advance would make any positive change to the court experience for child complainants, because all evidence of child sexual assault complainants is given from a remote location via CCTV. The adducing of pre-recorded interviews of adult complainants taken by investigators was opposed given ‘the need for an immediate account of the adult complainant’s version to be taken for investigative purposes, and the unavailability of the assistance of Crown Prosecutors at this point’.^[245]

26.178 A range of other concerns about the use (or over-use) of pre-recorded evidence was identified by stakeholders, including that:

• pre-recorded evidence of interview may, in practice, have limited value as evidence-in-chief, and the complainant may still be required to give evidence at the trial;

• where evidence is recorded at a pre-trial hearing and then replayed at the trial, the use of court resources is duplicated; and

• there may be problems where there is lack of continuity in legal representatives or judicial officers.^[246]

26.179 In relation to the last point, the Northern Territory Legal Aid Commission noted that, wherever possible, pre-recording of evidence should be conducted by the trial judge:

Otherwise, serious unfairness can arise, for example where the judge who conducts the [pre-recording] permits cross-examination of the complainant which the trial judge subsequently indicates he or she would not have allowed … ^[247]

26.180 Stakeholders, including those representing defendants in sexual offence proceedings, did not highlight any particular disadvantage of pre-recorded evidence for defendants. If anything, it was considered that pre-recorded evidence of a victim would generally make less of an impression on a jury than in court testimony.^[248]

Commissions’ views

26.181 As discussed, most states and territories have enacted regimes for the comprehensive pre-recording of evidence for child victims of sexual assault (and those who are cognitively or intellectually impaired). There is little firm information about the extent to which pre-recording is used^[249] or its effects on the experience of complainants or outcomes of trials.

26.182 In the Commissions’ view, however, there seems no reason why similar provisions should not be available in relation to the evidence of all adult complainants of sexual assault. It is important to facilitate mechanisms that minimise the negative experiences of complainants of sexual assault in the criminal justice system where this can be done without prejudicing defendants’ rights to a fair trial. All Australian jurisdictions should adopt comprehensive provisions dealing with pre-recorded evidence in sexual offence proceedings.

26.183 These provisions should permit the tendering of pre-recorded evidence of interview between investigators and a sexual assault complainant as the complainant’s evidence-in-chief and apply to all complainants of sexual assault (adults and children).

26.184 In addition, child complainants of sexual assault, and complainants of sexual assault who are vulnerable as a result of mental or physical impairment, should be permitted to provide evidence recorded at a pre-trial hearing. This evidence should be able to be replayed at the trial as the witness’ evidence. Adult victims of sexual assault should also be permitted to provide evidence in this way, by order of the court.

26.185 The Commissions do not consider that, in the context of this Inquiry, it would be appropriate to make recommendations detailing the grounds on which the admission of pre-recorded evidence should be ordered or the kind of evidence to which pre-recording should apply. The Commissions observe, however, that the wishes of the complainant should be taken into account in the decision-making process by the court and prosecutors.^[250]

26.186 The availability of mechanisms for giving pre-recorded evidence does not mean, however, that pre-recording will always be used. There is a range of reasons why it may not be appropriate to do so, for example:

the prosecutor may have formed the view that [pre-recorded evidence] was not in an appropriate form to use because of the way in which the questions were asked or, because of some technical difficulty with the tape, such as poor quality sound or visual display. It may also be that some prosecutors prefer to call the complainant to give viva voce evidence … because, for whatever reasons, this is perceived as improving the chances of securing a conviction. In some cases the complainant may wish to give viva voce evidence and/or the prosecutor forms the view that viva voce evidence will present as more compelling and impressive evidence. This is simply an aspect of the overall prosecutorial discretion to decide what evidence shall be called at trial and how that evidence is to be presented.^[251]

26.187 A 2009 study identified problems with VATE, including concerns about the interview techniques and the technical quality of recordings.^[252] Clearly, legislation permitting wider use of pre-recorded evidence should be supported by investment in up-to-date technology and a comprehensive training program for interviewers. All participants in the criminal justice system should receive training in relation to the new provisions, including the rationale for them.^[253]

26.188 The work of the Standing Committee of Attorneys-General (SCAG) on vulnerable witness protections, through the National Working Group on Evidence, is expected to include consideration of the use of audiovisual records of a witness to give evidence in proceedings. Any recommendations for reform of the uniform Evidence Acts (including to facilitate use of pre-recorded evidence in sexual assault proceedings) would need to be considered by the Australian and state and territory governments through the mechanism of SCAG.^[254]