Pre-recorded evidence

Pre-recorded evidence is recorded before the trial but used in court as part of the trial process and is an aspect of vulnerable witness protection. Pre-recorded evidence used in criminal proceedings can be categorised into two distinct forms:

  • the initial interview between police and the witness admitted as evidence-in-chief;
  • the entirety of the witness’s evidence, including cross-examination.

Commonwealth, state and territory legislation provides for the use of pre-recorded interviews with victims as evidence-in-chief, however, the provisions do not extend to complainants in sexual offence proceedings generally. The Commonwealth provisions apply only to child witnesses, and the NSW and Victorian provisions to children and cognitively impaired witnesses.

In the Commissions’ view, all Australian jurisdictions should adopt comprehensive provisions dealing with pre-recorded evidence in sexual offence proceedings. These provisions should allow the tendering of audiovisual records of interview between police and complainants of sexual assault as the complainant’s evidence-in-chief and apply to all victims of sexual assault (adults and children).

In addition, child victims of sexual assault and victims of sexual assault who are vulnerable as a result of mental or physical impairment should be allowed to provide an audiovisual record of evidence at a pre-trial hearing attended by the judge, the prosecutor, the defence lawyer, the defendant and any other person the court deems appropriate. Adult victims of sexual assault should also be permitted to provide evidence in this way, by order of the court. Audiovisual evidence should be recorded and replayed at the trial as the witness’s evidence in chief. Recorded evidence should be available for use at any re-trial following an appeal or in other proceedings in appropriate circumstances.

Proposal 17–5 Commonwealth, state and territory legislation should allow the tendering of pre-recorded audiovisual material of interview between investigators and a sexual assault complainant as the complainant’s evidence-in-chief.

Proposal 17–6 Commonwealth, state and territory legislation should permit child victims of sexual assault and victims of sexual assault who are vulnerable as a result of mental or physical impairment to provide an audiovisual record of evidence at a pre-trial hearing attended by the judge, the prosecutor, the defence lawyer, the defendant and any other person the court deems appropriate. Adult victims of sexual assault should also be permitted to provide evidence in this way, by order of the court. Audiovisual evidence should be replayed at the trial as the witness’s evidence. Recorded evidence should be available for use at any re-trial following an appeal or in other proceedings in appropriate circumstances.

Proposal 17–7 Commonwealth, state and territory governments should ensure that participants in the criminal justice system receive comprehensive education about legislation authorising the use of pre-recorded evidence in sexual assault proceedings, and training in relation to interviewing victims of sexual assault and creating pre-recorded evidence.