aide memoire · this aide memoire sets out the procedures for obtaining admissible audiovisual...

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AFP Aide Memoire

Aide Memoire on interviewing vulnerable witnessesDate of endorsement: 24 April 2012Date of last review: 16 Januarv 2013Endorsed bv: Suoerintendent Criminal InvestioationsContact oerson: Suoerintendent Criminal InvestioationsIdentifier: ACT015

• The original version of this document held in the Investigator's Toolkit may have changedsubsequent to it being printed. Please return to the original version to ensure you areutilising the most recent version. Members will also be notified of changes through theInvestigator's Toolkit.

• The contents of this document are for guidance purposes only and may require adaptationdeoendina on the soecific circumstances.

1. Acronyms

CDDPP

DVD

Compact Disc

Director of Public Prosecutions

Digital Versatile Disc

2. Definitions

Audiovisual recording - is defined in s. 40E of the Evidence (Miscellaneous Provisions)Act 1991 (ACT) as 'an audiovisual recording that is of a witness answering questions of aprescribed person in relation to the investigation of a sexual or violent offence'.

Intellectually impaired - is defined in s. 40D(2) of the Evidence (MiscellaneousProvisions) Act 1991 (ACT) as a person who suffers from any of the following:

• an appreciably below-average general intellectual function• a cognitive impairment (including dementia or autism) arising from an acquired

brain injury, neurological disorder or a developmental disorder• any other intellectual disability,

Less serious violent offence - is defined in s, 37 of the Evidence (MiscellaneousProvisions) Act 1991 (ACT).

Prescribed person - is defined in r, 4 of the Evidence (Miscellaneous Provisions)Regulations 2009 (ACT) as a police officer who has completed training in the making ofaudiovisual recordings of witnesses answering questions in relation to the investigationof sexual or violent offences.

Responsible person - means - as the prescribed position delegated on behalf of ACTPolicing (ACTP), and in respect to s. 40G(4)(b) of the Evidence (MiscellaneousProvisions) Act 1991 (ACT) and as defined in r, 5 of the Evidence (MiscellaneousProvisions) Regulations 2009 (ACT) - the Superintendent of Judicial Operations orhis/her delegate.

Serious violent offence - As defined in s, 37 of the Evidence (Miscellaneous Provisions)Act 1991 (ACT),

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Aide MemoireAFPFOR OFFICIAL USE ONLY•

Witness - is defined in s. 40D(2) of the Evidence (Miscellaneous Provisions) Act 1991(ACT) as the complainant (s. 40A) in a sexual offence or a violent offence proceedingwho is either:

• a child or• inteilectuaily impaired.

3. Introduction

This aide memoire sets out the procedures for obtaining admissible audiovisual evidencewhen interviewing children and inteilectually impaired adults who are victims of sexual orviolent offences under ACT legislation.

4. legislative protection entitlement

Under the Evidence (Miscellaneous Provisions) Act 1991 (ACT) compiainants in sexualand violent offences are entitled to certain provisions in criminal proceedings. Inparticular, if police conduct an audiovisual recording with a child or intellectuailyimpaired adult who is the victim of a sexual or violent offence, that recording may beadmissible as evidence in court proceedings.

S. Privacy

Investigators when interviewing children or intellectually impaired adults suspected ofbeing victims of sexual or violent offences must always:

• consider and protect the witness's privacy• maintain the security and integrity of ail audiovisual recording discs in accordance

with legislative and Governance requirements.

Investigations involve a multi-agency approach and the AFPcase officer wiil work toensure each agency is aware of its obligations under the Privacv Act 1988 (Cth) tosecure the privacy of ail victims.

6. Audiovisual recording

A member who becomes aware of, or receives a report of, an incident in which a child oran intellectuaily impaired adult is identified as the victim, must ensure notification andbriefings are undertaken in accordance with the:

• AFPPractical Guide: Investigation of Child Abuse and Sexual Offences (ACTPolicing)

• ACT Policing: Practical Guide: Criminal Investigations Response and Notification.

Once the incident has been ailocated to the investigating member, and in consultationwith their team leader, the investigating member must assess whether or not the chiidor inteilectually impaired adult should be interviewed by a prescribed person. Theinvestigating member must take into consideration the provisions of the Evidence(Miscellaneous Provisions) Act 1991 (ACT).

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Sexual offence or family violence

If the matter is a sexual offence or results from a famiiy violence incident a prescribedperson should, wherever possibie, conduct the interview.

Other violent offences

If the matter is some other serious violent offence or a iess serious violent offence, theinvestigating member shouid consider the following when assessing whether or not aninterview should be the subject of an audiovisuai recording:

• the age of the child• the nature and extent of the intellectual impairment• the seriousness of the alleged offence• the relationship of the victim to the accused• any other information relevant to the vulnerability of the witness.

A member who suspects a witness is intellectually impaired should make all attempts toapply the provisions of the Act and provide all relevant information to the Director ofPublic Prosecutions (DPP) for the prosecutor to consider the admissibility of therecording.

The investigating member should ensure the PROMIS'Result Text' clearly states:• the rationale for any decision to not use a prescribed person• any attempts undertaken to locate a prescribed person.

If a prescribed person is not required then a Record of Conversation can still beconducted.

If a prescribed person is not available, consideration should be given to deiaying anyinterview pending the availability of a prescribed person to conduct the interview inaccordance with the Act.

7. Audiovisual recording interviewer

If it is deemed appropriate that a child or intellectualiy impaired adult be interviewed bya prescribed person the following should occur:

• If the investigating member is a prescribed person, then that member or anotherprescribed person should conduct an audiovisual recording with the witness.

• If the investigating member is not a prescribed person then that member shouldarrange for a prescribed person to conduct the interview. They must first seek theservices of a prescribed person from within their portfolio then, if unsuccessful,from another portfolio.

• If a prescribed person is located they must attempt to conduct an audiovisualrecording as per the Evidence (Miscellaneous Provisions) Act 1991 (ACT). If, onassessing the full circumstances of the matter, the prescribed person decides thatit is not appropriate to conduct an audiovisual recording then the prescribedperson should ensure a case note entry is entered into PROMISoutlining thereasons for the decision.

• Both members conducting the audiovisual recording should, where possible, beprescribed persons.

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The investigating member must retain carriage of the investigation.

Management of prescribed persons

Ail Officers-in-Charge (Band 8) must ensure that there is a sufficient number of qualifiedand contemporary skiiled prescribed persons within their area of command.

Once training has occurred, ACTPHuman Resourceswiil provide ACTPOperations with acurrent list of prescribed persons.

ACTPOperations Team Leaders and the Duty Operations Manager must maintain acurrent list of prescribed persons for ACTP.

8. Audiovisual recording conduct

When making an audiovisual recording of a witness, the prescribed person must ensurecompliance with s. 40E of the Evidence (Miscellaneous Provisions! Act 1991 (ACT).

Section 40E of the Act states that the audiovisual recording must include:• the date when, and the place where, the recording was made• the times when the recording started and ended• the times when any break in questioning started and ended and the reason for

the break• the name of each person present during any part of the recording• for each person present during any part of the recording - the part when the

person was present.

The audiovisual recording must also:• be certified by a prescribed person as an accurate record of the witness

answering the questions• not be edited or changed, unless the court hearing the proceeding in which the

recording is tendered orders otherwise.

Section 40E of the Act does not ailow any member, other than a prescribed person, tocertify the accuracy of the audiovisual recording, even if that other member was presentduring the interview. Once the prescribed person has watched the audiovisual recordingand checked it against the transcript of the audiovisual recording, the member mustinclude in their police statement that they have certified the audiovisual recording andproofread the transcript.

9. Caseofficer responsibilities

The case officer must ensure that:• no other person, including the victim and/or accused, is provided with a copy of

the CD or DVD recording (Team Leaders, Operational Support Sergeants andother members performing review or adjudication processes are exemptions) -unless the DPPrequests a copy

• the interviewee copy of the recording is destroyed as soon as possible or filed andstored in a secure location

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• exhibit handling procedures are strictly adhered to regarding the CDs and DVDsof an audiovisual recording

• the working copies of the CDs and DVDs are stored in a secure place• all working copies of recordings are destroyed at the completion of any court

proceedings, or when it is confirmed that no action will be taken• they are aware of the provisions of s. 40M of the Evidence (Miscellaneous

Provisions) Act 1991 (ACT), which outlines the offence provisions for possessing,supplying, playing, etc, an audiovisual recording without authority.

When preparing a brief of evidence the case officer should ensure that:• no audiovisual recordings are included in the brief of evidence• the brief head identifies that the primary witness statement is in the format of an

evidence in chief interview, as per s. 40E of the Act• the hearing brief 'Witness List A' clearly provides the contact details for a member

who can facilitate viewing the audiovisual recording request by the accusedand/or their lawyer.

lO.Notice for access

The provision of notice for access pursuant to s. 40G of the Evidence (MisceilaneousProvisions) Act 1991 (ACT) to the accused person or the person's lawyer is undertakenby the DPP,who is also responsible for providing the accused person or the person'slawyer with a transcript of the audiovisual recording.

The accused person and the person's lawyer are entitled to see and listen to theaudiovisual recording. Written notice from the accused person or the person's lawyer tosee and listen to the audiovisual recording should be provided to the responsible person(Superintendent of Judicial Operations). Upon receiving written notice from the accusedperson or the person's lawyer the responsible person should:

• ensure the notice is received in compliance with Practice Direction No 4 of 2009Arrangements for Witnesses Pursuant to the Evidence (Miscellaneous Provisions)Act 1991 (ACT)

• notify the case officer or their representative• notify the DPPthat they have received the notice and who the case officer or their

representative is.

The case officer or their representative must then contact the accused person or theperson's lawyer and arrange for them to see and listen to the audiovisual recording inaccordance with s. 401 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), andshould supervise the viewing.The member supervising the viewing:

• may use the Record of Interview rooms at any police station to view therecordings

• should ensure that no recording devices, including mobile phones, are taken intothe viewing room.

This section does not provide a power of search but allows the supervising member toensure that s. 401(4) of the Act is complied with.

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If the accused person attends the viewing without a lawyer the member must remainwith the accused person during the viewing.

After the viewing the member supervising should:• include a case note entry on the relevant PROMISjob (this should include the

date and time of the viewing, who was present at the viewing, and any otherrelevant information regarding the viewing)

• notify the DPPthat the viewing has taken place.

If the accused person or the person's lawyer indicate they wish to access an audiovisualrecording more than once (in accordance with s. 401(3) of the Act), ACTPshould requestthe accused person or their lawyer to provide written notice to the Responsible Personfor each subsequent request for viewing. This will ensure full compliance with the Actand ensure that requests made of ACTPcan be formally acted upon.

l1.Training prescribed persons

ACTPshould ensure sufficient prescribed persons are available, where possible, so thatvulnerable witnesses can take part in an audiovisual recording in accordance with thisAct.

ACTPwill liaise with Learning and Development to ensure necessary and appropriatetraining is available to members. This shouid include initial training and skillsmaintenance.

ACTPHuman Resources will maintain a list of all prescribed persons and provide it toACTPOperations and station Officers in Charge.

12.References

Legislation• Births, Deaths and Marriages Registration Act 1997 (ACT)• Evidence (Miscellaneous Provisions) Act 1991 (ACT)• Evidence (Miscellaneous Provisions) Regulations 2009 (ACT)• Magistrates Court Act 1930 (ACT)• Privacv Act 1988 (Cth)

AFPgovernance instruments• AFP Practical Guide: Investigation of Child Abuse and Sexual Offences (ACT

Policing)• ACT Practical Guide on Criminal Investigations response and notification (ACT

Policing)

Guidance• ACT Evidence in chief Aide Memoire - interviewing young people and vulnerable

witnesses

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