Section 367 of the Criminal Procedure Act 2009 provides that

367. Use of recorded evidence-in-chief

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 person prescribed by the regulations for the purposes of this section.

The regulations referred to are the Criminal Procedure Regulations 2009. There, in Part 2 Division 5, r 5 states,

5. Who may ask questions

For the purposes of section 367 of the Act, the following persons are prescribed-

(a) a member of Victoria Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;

(b) a person authorised in writing by the Chief Commissioner of Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;

(c) if the questions are put to the witness in another State or the Northern Territory, a member of the police force of that State or Territory;

(d) if the questions are put to the witness in a Territory other than the Northern Territory, a member of the Australian Federal Police.

As far as I know, it’s not a requirement of Video Audio Recorded Evidence (VARE) law that another person be present during these interviews, such as a social worker or guardian. But it seems common for police investigators to have someone seated next to the witness or nearby while the interview takes place, perhaps to deter allegations of coercion.

This additional person is usually not a person described in r 5. So what happens to their questions, if they become engaged in the discussion between the police investigaor and the witness?

Maxwell P, Harper JA and Beach AJA [at 45] addressed this question in RWS v The Queen,

…the issue raised by this ground concerns what occurred during a period in each of the recordings when the authorised questioner was absent and the ‘independent third person’ remained with the complainant. In each case, there was a conversation between that person and the complainant, not about the matters of sexual complaint but about the doll which the complainant had been holding during her interview. Relevant excerpts of the conversations are set out below:

Interview with S:

Ms L: … it’s bigger than your little doll.
A: It’s nice and fluffy.
Ms L: It is, isn’t it?
A: Yeah.
Ms L: Have you got fluffy toys at home?
A: No.
Ms L: You haven’t? So haven’t you got any more dolls beside Stephen?
A: I’ve got others.
Ms L: Yeah. What sort?
A: Girls.
Ms L: Oh, yeah. How many have you got at home?
A: Three girls.
Ms L: O.K. And are they – – –
A: She – – –
Ms L: Yeah,
A: She stays in the pusher.

Interview with T

Ms L: What are you going to do this afternoon when you get home?
A: Try and do the puzzles.
Ms L: Oh, O.K. Good.
A: Puzzles.
Ms L: Do you do lots of puzzles? What sort do you do?
A: The one I’m doing now is a popcorn one.

Objection was raised by defence counsel to these portions of the interviews. The judge, after having consulted with another judge of the County Court, ruled that he would not excise these interludes from the recordings which were then already before the jury. It is now said that the relevant portions should have been excluded and that the failure to do so has resulted in a substantial miscarriage of justice, because they were not within the scope of the recording authorised by s 367.

In his written case in response to this ground, senior counsel for the Crown drew attention — properly, in our view — to the need to consider the provisions of the Evidence Act 2008 (Vic) (‘Evidence Act’) which could be said to have governed the admissibility question. (No reference was made to the provisions by trial counsel when he raised his objection). Senior counsel referred to ss 135, 137 and 138 of the Evidence Act. The matter is somewhat further complicated by s 368(3) of the Criminal Procedure Act, which confers a general power on the Court to rule as inadmissible ‘the whole or any part of the contents of a recording.’

In his written case, senior counsel for the Crown conceded that the answers recorded during the exchanges between the independent third person and the respective complainants could be viewed as improperly obtained evidence, within the meaning of s 138(1)(a) of the Evidence Act. It seems to us, however, that this is not a situation to which s 138 of the Evidence Act applies.

Since s 367 of the Criminal Procedure Act speaks of a witness giving evidence-in-chief in the form of a recording, it seems to us that the making of the recording can properly be viewed as being the equivalent of the witness giving evidence in the courtroom. The procedure for evidence-in-chief to be recorded separately in this fashion has been adopted for the assistance and protection of witnesses, and is intended to fulfil that function in a trial which is ordinarily fulfilled by a witness giving viva voce evidence. Section 138, on the other hand, seems to be directed at the obtaining of evidence in some form or another before trial, not at the giving of what are said to be inadmissible answers in the course of evidence-in-chief.

Assuming that to be right, there is no doubt that his Honour had power under s 368(3) of the Criminal Procedure Act to rule part of the recording inadmissible. It was not evidenceinchief in the sense adverted to by s 367 but it was part of the recording. Had a ruling under that section been sought, we think it likely, as senior counsel for the Crown submitted, that the exercise of the discretion would have been informed, if not governed, by the considerations set out in the applicable provisions of the Evidence Act.

According to the submission for the applicant, the admission of the answers given in the interlude periods gave rise to ‘unfair prejudice’ within the meaning of ss 135 and 137. Of course, if s 137 were applicable (because the probative value of the evidence was outweighed by the danger of unfair prejudice), the Court would have been bound to strike the relevant answers from the record (assuming that to have been a feasible way of effecting its non-admission into evidence). Alternatively, and in any event, the Court had power to rule the answers inadmissible if their probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial, pursuant to s 135(a) of the Evidence Act.

In our view, if the question had been raised and a ruling sought by reference to those considerations, it is almost inevitable that the evidence would have been treated as admissible. So far as probative value is concerned, the answers given in the course of each interlude had real and obvious probative value. This was evidence of a kind which, in our view, was quite properly before the jury, which had to decide the question of the complainants’ mental capacity. As Beach AJA pointed out in argument, in a civil jury trial concerning the extent of impairment of a person suffering from cerebral palsy, it is conventional — and unobjectionable — for those representing the plaintiff to put into evidence a film showing ‘a day in the life’ of the plaintiff. In short, evidence of this kind, that is, evidence of engagement between one or other of the complainants and some third party, could have been led and would have been admissible as relevant to the central issue in the trial.

For that purpose, the answers given in the interludes were evidence of exactly the same character as the evidence which the complainants gave in the course of their authorised VATE interviews. It is also of the same character as the observations by lay witnesses which the Court in Eastwood viewed as relevant and probative. The difference in this case is that the jury was able to view the complainants first hand, rather than having to rely on someone else’s observations.

In fact, it seems unlikely that these exchanges would have added much to what the jury was already aware of, given that each complainant was holding her doll through the formal part of the interview and given that this very matter had been raised with the applicant in the record of interview; namely, that it must be thought strange that a woman in her thirties would carry a doll. So far from it being regarded as irrelevant or extraneous, defence counsel said in his final address to the jury, ‘You can play with dolls but you can also have sex’.

So far as unfair prejudice is concerned, we are unable to see that there was any. As the cases have made clear, evidence which is adverse to an accused is not unfairly prejudicial, although it is doubtless prejudicial: See Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91], Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 603 [22], 609 [51]. That, of course, is its purpose. It is only unfair if it is liable to be given weight which is not warranted or if it is liable to confuse or mislead a jury. For the reasons we have given, this evidence had none of those characteristics.

The only matter relied on to support the applicant’s contention as to unfair prejudice was the undoubted fact that the questioner during these interludes was not a person authorised for the purposes of the making of recordings under s 367 of the Criminal Procedure Act. That circumstance does not, by itself, constitute or give rise to unfair prejudice. The fact that an unauthorised person was the questioner said nothing, in our view, about the utility of the evidence. Nor did it make it unfair in a way that it could not have been said to be unfair had the questions come from a police officer.

There may, of course, be circumstances when things said in an interlude of this kind might well be unfairly prejudicial but we need say nothing about those possibilities. Plainly enough, whether there was unfair prejudice would depend on the circumstances and, in particular, on the content of any recorded exchange during such an interlude. For the reasons we have given, that was not this case. For completeness we would add that if, contrary to our view, this issue fell to be considered by reference to s 138, our conclusion would have been the same.

RWS v The Queen doesn’t say that questions from unauthorised questioners will always be admissible. (That would totally undercut the operation of s 367). Instead, it confirms that non-compliance with the requirement that questioners belong to one of the categories in r 5 will attract consideration of the usual exclusionary discretions of the Evidence Act.