Evidence (Visual Recording of Interviews with Children) Regulations 2004

 

Evidence (Visual Recording of Interviews with Children) Regulations 2004

Contents

1.Citation1

2.Commencement1

3.Interpretation1

4.Prescribed classes of persons — s. 106HA(1)(a)1

5.Prescribed requirements and the extent to which they are to be met — s. 106HA(1)(b)2

6.Opportunity of accused to view visually recorded interview — s. 106HB(2)(b)3

7.Certificate to accompany visually recorded interview3

Notes

Compilation table5

 

Evidence Act 1906

Evidence (Visual Recording of Interviews with Children) Regulations 2004

1.Citation

These regulations are the Evidence (Visual Recording of Interviews with Children) Regulations 2004.

2.Commencement

These regulations come into operation on the same day as the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 comes into operation.

3.Interpretation

(1)In these regulations —

section means a section of the Act.

(2)If a word or expression used in these regulations is defined in section 106A then it has the same meaning in these regulations.

4.Prescribed classes of persons — s. 106HA(1)(a)

(1)For the purposes of section 106HA(1)(a) a person is of the prescribed class if the person —

(a)is employed in, or engaged by, the department whether as a public service officer under the Public Sector Management Act 1994, under a contract for services, or otherwise;

(b)is member of the Police Force or an employee in the Western Australian Police Service; or

(c)has successfully completed a training course about interviewing children provided by —

(i)the Western Australian Police Service; or

(ii)the department,

or a course approved in writing by the Commissioner of Police as being similar to such a course.

(2)In this regulation —

Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892;

department means the department of the Public Service principally assisting in the administration of the Children and Community Services Act 2004.

[Regulation 4 amended in Gazette 11 Mar 2008 p. 819.]

5.Prescribed requirements and the extent to which they are to be met — s. 106HA(1)(b)

For the purposes of section 106HA(1)(b) an interview meets the prescribed requirements if it was —

(a)conducted in such a manner that, as far as is practicable, statements made by the child in the interview were not elicited by the use of leading questions;

(b)where the child is under the age of 12 years, conducted in such a manner —

(i)that the child appears to understand that participating in the interview is a serious matter and that in giving the interview the child has an obligation to tell the truth; or

(ii)that it is apparent that the child has reached a level of cognitive development that enables the child to understand and respond rationally to questions and to give an intelligible account of his or her experiences;

and

(c)conducted or recorded in a manner that provides all, or most, of the following information —

(i)the date on which the recording was made;

(ii)the place at which the recording was made;

(iii)the identity of all persons who were present at any time during the interview; and

(iv)any breaks in the interview, the time the break commenced and concluded and the reasons for the break.

6.Opportunity of accused to view visually recorded interview — s. 106HB(2)(b)

The accused and his or her counsel have been given a reasonable opportunity to view a visually recorded interview for the purposes of section 106HB(2)(b), if —

(a)at least 3 clear days prior notice in writing has been given to the accused or his or her counsel specifying —

(i)at least 2 occasions during normal office hours when the interview may be viewed; and

(ii)the place where the interview may be viewed;

and

(b)the interview was available to be viewed at the place specified in the notice on each occasion specified in the notice.

[Regulation 6 amended in Gazette 11 Mar 2008 p. 820.]

7.Certificate to accompany visually recorded interview

(1)A person who conducts a visually recorded interview is to certify that —

(a)he or she —

(i)is a person of a class prescribed under section 106HA(1)(a); and

(ii)conducted the interview;

and

(b)the details specified in the certificate are true and correct.

(2)A certificate is to specify —

(a)sufficient details to identify the visually recorded interview in respect of which is it is given;

(b)the name, and contact details, of the person who conducted the interview; and

(c)which of the classes prescribed under section 106HA(1)(a) (see regulation 4(1)) applies to him or her.

(3)A certificate given or purporting to be given under this regulation —

(a)is admissible as evidence of the facts specified in the certificate; and

(b)in the absence of proof to the contrary, is proof of those facts.

(4)A person must not give any information that is false or misleading in a certificate.

Penalty: $2 000.

 

Notes

1This is a compilation of the Evidence (Visual Recording of Interviews with Children) Regulations 2004 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Citation

Gazettal

Commencement

Evidence (Visual Recording of Interviews with Children) Regulations 2004

31 Dec 2004 p. 7147‑50

1 Jan 2005 (see r. 2 and Gazette 31 Dec 2004 p. 7130)

Evidence (Visual Recording of Interviews with Children) AmendmentRegulations 2008

11 Mar 2008 p. 819‑20

r. 1 and 2: 11 Mar 2008 (see r. 2(a));
Regulations other than r. 1 and 2: 12 Mar 2008 (see r. 2(b))