Evidence (Recorded Evidence) Regulations 2004

Victorian Legislation and Parliamentary Documents i Evidence (Recorded Evidence) Regulations 2004 S.R. No. 156/2004 TABLE OF PROVISIONS Regulation Page 1. Objective 1 2. Authorising provision 1 3. Commencement 1 4. Revocation 1 5. Definitions 2 6. Who may put questions 2 7. Information to be included on recording 2 8. Copies of recordings 2 9. Transcript of recording 3 10. Right of defendant to listen to or view recording 3 11. Record of persons listening to or viewing recordings 3 12. Use of recordings or copies 4 13. Destruction of recordings and copies 5 ═══════════════ ENDNOTES 6 -- 1 of 7 -- Victorian Legislation and Parliamentary Documents 1 STATUTORY RULES 2004 S.R. No. 156/2004 Evidence Act 1958 Evidence (Recorded Evidence) Regulations 2004 The Governor in Council makes the following Regulations: Dated: 7 December 2004 Responsible Minister: ROB HULLS Attorney-General DIANE CASEY Clerk of the Executive Council 1. Objective The objective of these Regulations is to make provision for the making, use, possession, storage, access to and destruction of audio and video recordings referred to in section 37B of the Evidence Act 1958 and clause 6(1)(h) of Schedule 5 to the Magistrates' Court Act 1989. 2. Authorising provision These Regulations are made under section 152(2) of the Evidence Act 1958. 3. Commencement These Regulations come into operation on 12 December 2004. 4. Revocation The Evidence (Recorded Evidence) Regulations 19941 are revoked. -- 2 of 7 -- Victorian Legislation and Parliamentary Documents S.R. No. 156/2004 Evidence (Recorded Evidence) Regulations 2004 2 5. Definitions In these Regulations— "the Act" means the Evidence Act 1958; "recording" means an audio or video recording of a kind referred to in section 37B(2) of the Act and clause 6(1)(h) of Schedule 5 to the Magistrates' Court Act 1989. 6. Who may put questions For the purposes of section 37B of the Act, a person is prescribed if he or she is a member of the police force who has successfully completed a training course conducted by Victoria Police on the procedure for making recordings. 7. Information to be included on recording In addition to any other requirement made by or under the Act or the Magistrates' Court Act 1989, a recording must include— (a) the date on which, and the place at which, the recording was made; (b) the times at which the recording was commenced and concluded; (c) identification of all persons present during any part of the recording; (d) the times at which any break in questioning commenced and concluded and the reason for the break. 8. Copies of recordings (1) The Chief Commissioner of Police may authorise copies to be made of a recording made in or in connection with a proceeding and must ensure that the recording and all copies of the recording are kept in safe custody. r. 5 -- 3 of 7 -- Victorian Legislation and Parliamentary Documents S.R. No. 156/2004 Evidence (Recorded Evidence) Regulations 2004 3 (2) If a copy of a recording is made, the Chief Commissioner must record— (a) the date on which the copy was made; and (b) the name and address of the person to whom the copy was given. 9. Transcript of recording If a transcript of a recording is made, a copy of the transcript must be given as soon as practicable to the witness answering questions or to his or her parent or guardian. 10. Right of defendant to listen to or view recording (1) If a recording has been made in a proceeding, the informant in the proceeding must give notice to the defendant that the defendant and his or her legal practitioner have a right to listen to and, in the case of a video recording, view the recording at a time and place agreed between the defendant and the informant. (2) If a defendant and his or her legal practitioner wish to listen to and, in the case of a video recording, view the recording, the informant must make the recording or a copy of it available for listening or viewing at the time and place agreed. 11. Record of persons listening to or viewing recordings If any person listens to or views a recording, or a copy of a recording, a record of the following information must be made— (a) the name of the person viewing or listening to the recording or copy; (b) the capacity in which the person is involved in the proceeding; r. 9 -- 4 of 7 -- Victorian Legislation and Parliamentary Documents S.R. No. 156/2004 Evidence (Recorded Evidence) Regulations 2004 4 (c) the date on which and the time at which the recording or copy was viewed or listened to; (d) the name of the person who gave access to the person to view or listen to the recording or copy. 12. Use of recordings or copies (1) Subject to sub-regulation (2), a recording or a copy of a recording may only be used in or in connection with a proceeding referred to in section 37B of the Act or clause 6(1)(h) of Schedule 5 to the Magistrates' Court Act 1989. (2) The witness questioned on a recording or, in the case of a witness under the age of 18, his or her parent or guardian, may consent in writing to any other use to which the recording or a copy of the recording may be put. (3) If a person is incapable of giving consent by reason of impaired mental functioning, his or her parent or guardian may give consent under sub- regulation (2). (4) A recording or a copy of a recording must be used and stored so as to preserve as far as possible the privacy of the person questioned. (5) No person is entitled to have possession of or access to a recording or copy of a recording except in accordance with section 37B of the Act or clause 6(1)(h) of Schedule 5 to the Magistrates' Court Act 1989 and these Regulations. r. 12 -- 5 of 7 -- Victorian Legislation and Parliamentary Documents S.R. No. 156/2004 Evidence (Recorded Evidence) Regulations 2004 5 13. Destruction of recordings and copies If in or in connection with a proceeding a person has been questioned and a recording made of the questioning, the Chief Commissioner of Police must destroy or erase, or cause to be destroyed or erased, the recording and all copies of the recording within 6 months after the conclusion of the proceeding or the expiry of any appeal period or, if a person has consented under regulation 12(2) to another use, the end of that use. ═══════════════ r. 13 -- 6 of 7 -- Victorian Legislation and Parliamentary Documents S.R. No. 156/2004 Evidence (Recorded Evidence) Regulations 2004 6 ENDNOTES 1 Reg. 4: S.R. No. 202/1994. Endnotes -- 7 of 7 --