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2.3.3 – Pre-recorded Evidence

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Overview

  1. While ordinarily witnesses must give their evidence at the time of the relevant legal proceeding, the Criminal Procedure Act 2009 specifies three circumstances in which pre-recorded evidence may be used:
    1. Division 5 of Part 8.2 allows the evidence-in-chief of certain witnesses to be given in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a prescribed person (the "VARE procedure");
    2. Division 6 of Part 8.2 allows the examination-in-chief, cross-examination and re-examination of certain witnesses to be given in the form of an audiovisual recording made at a special hearing (the "special hearing procedure").
    3. Division 7 of Part 8.2 allows a court in proceedings for a sexual offence to use a recording of the complainant’s evidence in a new trial, appeal or another proceeding (the “previous trial evidence procedure”).

    These procedures are addressed in turn below.

    The VARE Procedure

  2. The VARE procedure may be used in criminal proceedings other than committal proceedings, that relate (wholly or partly) to a charge for:

    a) A sexual offence;[1] or

    b) An indictable offence which involves assault, injury or threat of injury (Criminal Procedure Act 2009 s366(1). See also R v Davis [2007] VSCA 276);

    d) Offences against sections 23 or 24 of the Summary Offences Act 1966 if those offences are related to an offence specified in paragraph (a), or (b) above.

  3. In such proceedings, a prosecution witness’s evidence-in-chief may be given by way of an audio or audiovisual recording which consists of the witness answering questions put to him or her by a prescribed person(a "VARE") in the following circumstances:
  4. A VARE is admissible as the witness’ evidence-in-chief. It should not be admitted as an exhibit (Criminal Procedure Act 2009 s368; R v Lewis [2002] VSCA 200; R v BAH (2002) 5 VR 517). However, it should generally be marked for identification (see Gately v R (2007) 232 CLR 208).
  5. Objections to leading questions in examination in chief must be applied with caution to leading questions during a VARE. The VARE is produced in a different context from the trial itself (SLJ v R (2013) 39 VR 514).

    Indictable Offence Involving Assault, Injury or Threat of Injury

  6. One of the circumstances in which the VARE procedure may be used is where the proceeding relates to a charge for an indictable offence which involves assault, injury or threat of injury (Criminal Procedure Act 2009 s366(1)(b)).
  7. The word "injury" in s366(1)(b) includes mental harm (R v Anders (2009) 20 VR 596).
  8. In determining whether an offence falls within this category, the judge must look to the elements of the offence, as the elements apply in the particular case (Saenz v R [2011] VSCA 154; R v Anders (2009) 20 VR 596).
  9. As the elements of the offence of stalking (Crimes Act 1958 s21A) involve injury or threat of injury, s366(1)(b) applies to that offence (R v Anders (2009) 20 VR 596).
  10. The elements of kidnapping can be committed by force or fraud. Where the elements are committed by force, the offence will involve an assault, injury or threat or injury and the VARE procedure applies. The same result may not follow where the offence is committed by fraud (Saenz v R [2011] VSCA 154).

    Playing the VARE

  11. At the proceeding, the witness must:
  12. If the witness fails to attest to the truthfulness of the recording, the evidence may only be admitted if counsel for the defence does not object (R v LRG (2006) 16 VR 89).
  13. The witness does not need to remember the matters which are the subject of the recording. The requirement that he or she attest to the truthfulness of the contents of the recording is satisfied if the witness is able to depose at trial that what he or she said would have been a truthful account of his or her recollections at the time the recording was made (R v Anders (2009) 20 VR 596).
  14. The judge may order at any time during the trial that the jury be provided with transcript of audiovisual recordings of evidence (Criminal Procedure Act 2009 s223(1)(j); R v Welstead [1996] 1 Cr App R 59). See Providing Documents to the Jury for information on the provision of transcripts.
  15. This may empower the judge to permit the jury to take a VARE transcript into the jury room. However, the leading authorities caution strongly against doing this, on the basis that there is no safeguard against the jury giving the transcribed evidence disproportionate weight (R v BAH (2002) 5 VR 517; R v Welstead [1996] 1 Cr App R 59).
  16. These authorities were decided at a time when it was unusual for judges provide the trial transcript to the jury (compare Criminal Procedure Act 2009 s223(1)(ha)). It is now common for Victorian judges to provide the transcript. In cases where the jury has transcript of all, or substantially all the evidence in the trial, there may be no reason to exclude the VARE transcript from the jury room.

    Replaying the VARE

  17. Juries often ask to be allowed to view a VARE again during their deliberations. In responding to such a request, the judge has an overriding duty to ensure a fair trial (R v BAH (2002) 5 VR 517).
  18. In such cases, the judge may choose to replay the tape in the courtroom, or to read relevant passages to the jury from the transcript or from his or her notes (R v BAH (2002) 5 VR 517).
  19. In determining how to exercise this discretion, the judge should discuss the matter with counsel. If necessary, the judge may ask questions of the jury to identify the reason they wish to review the tape. Such questions should not intrude on the content of the jury’s deliberations (R v BAH (2002) 5 VR 517; R v H [1999] 2 Qd R 283).
  20. If the jury only require a reminder of what the witness said, it will usually be preferable to remind them of the relevant evidence by reading from the transcript. In contrast, if the jury seeks a reminder of how the witness said something, that may indicate a need to view the VARE again (R v Rawlings; R v Broadbent [1995] 1 WLR 178).
  21. Like any other request to be reminded about the evidence, requests for VARE should be dealt with in open court. The relevant evidence should either be read out in court, or the tape should be played in the courtroom (R v BAH (2002) 5 VR 517; R v Lyne [2003] VSCA 118).
  22. Previously, judges did not permit the jury to replay a VARE in the jury room. The authorities doubted that judges had power to permit this, and considered that if judges did have this power, it would rarely be proper to exercise the discretion in this way. This was because of the risk of the jury giving the evidence disproportionate weight in contrast to other evidence, and the perception that this may prejudice the accused (R v BAH (2002) 5 VR 517; R v Lyne [2003] VSCA 118; R v Lewis [2002] VSCA 200).
  23. Since these cases were decided, the law has been changed to expressly permit the judge to order at any time during the trial that the jury be provided with audio or audiovisual recordings of evidence (Criminal Procedure Act 2009 s223(1)(i)).
  24. This appears to give the judge a discretion to allow the jury to play a VARE in the jury room, overcoming any limitations of the repealed s19 of the Crimes (Criminal Trials) Act 1999 (see R v BAH (2002) 5 VR 517; R v Lyne [2003] VSCA 118).
  25. If this statutory change permits judges to allow the jury to play a VARE in the jury room, it may also broaden the circumstances where this is a proper exercise of discretion. However that discretion must continue to be exercised with regard to the requirements of fairness and balance (see R v BAH (2002) 5 VR 517; R v Lyne [2003] VSCA 118).

    Jury Directions and Comments

  26. As a VARE stands as the evidence-in-chief of a witness, it is not appropriate to tell the jury that such evidence is in any way inferior to evidence given in the courtroom (R v MTP [2002] VSCA 81; Clarke v R [2013] VSCA 206).
  27. If a VARE is replayed to the jury, or given to the jury to replay in the jury room, the judge should usually:
  28. This warning must be given with the authority of the judge’s office. It is not sufficient for the judge to simply make a comment that there is other evidence that the jury may wish to consider (R v Lyne [2003] VSCA 118).
  29. If a VARE is replayed, or given to the jury to replay in the jury room, the judge may also need to remind the jury of the witness’s cross-examination, if not also replayed or provided to them, and of any weaknesses that have been identified in his or her evidence. This is not mandatory, and should be based on the jury’s needs and the principle of a fair trial (R v BAH (2002) 5 VR 517; R v H [1999] 2 Qd R 283).

    The Special Hearing Procedure

  30. In a criminal trial that relates (wholly or partly) to a charge for a sexual offence,[3] the evidence of a complainant who was a child or who had a cognitive impairment when proceedings were commenced must be given at a special hearing, unless the court directs otherwise (Criminal Procedure Act 2009 ss369, 370).[4]
  31. A special hearing may be held before or during the trial. At a special hearing, the whole of the complainant’s evidence must be recorded. Where the special hearing is held before the trial, the complainant’s evidence must be presented in the form of that recording (Criminal Procedure Act 2009 s370).
  32. On the application of the prosecution, the court may direct that a special hearing not be held, and that the complainant give direct testimony in the proceeding, if it is satisfied that:
  33. During a special hearing, the complainant’s evidence is to be given by closed-circuit television, and no person except those authorised by the court may be present in the same room as the complainant when his or her evidence is being given. In the case of a special hearing held during a trial, the jury must be present in the courtroom (Criminal Procedure Act 2009 s372).
  34. The court must direct that the complainant be permitted to have an emotional support person beside him or her when giving evidence, unless it is satisfied that the complainant is aware of the right to have an emotional support person with him or her, and he or she does not want such a person to be present (Criminal Procedure Act 2009 s365).
  35. The court may also direct the use of other alternative arrangements in the special hearing (e.g., requiring legal practitioners not to robe) (Criminal Procedure Act 2009 s360). See Alternative Arrangements for further information.
  36. A VARE may be used as the witness’s evidence-in-chief in a special hearing (see "The VARE Procedure" above).
  37. A recording of a special hearing held before the trial is admissible as the witness’ evidence. It should not be admitted as an exhibit (R v Gately (2007) 232 CLR 208).

    Replaying a Special Hearing Tape

  38. A request by the jury to be reminded of the contents of a special hearing tape should ordinarily be dealt with in the same manner as other requests to be reminded about the evidence given in the trial (R v Gately (2007) 232 CLR 208). See also Charge: Concluding Remarks and Providing Documents to the Jury.
  39. Historically, courts have held that it is not appropriate to provide audio visual recordings to the jury to watch in the jury room. Rather, judges were expected to either read out the relevant evidence, or to play the relevant parts of the recording in open court (see, e.g., Gately v The Queen (2007) 232 CLR 208).
  40. With the advent of the CPA 2009 s 223(1)(i), there is a statutory basis for the court to provide the jury with audio or audio-visual recordings of evidence.
  41. While the judge must be careful that the provision of material is consistent with a fair trial, there is no longer a prohibition on providing recordings for the jury to watch in the jury room. Instead, the judge can ensure a fair trial by providing recordings along with a direction reminding the jury that the recordings are only part of the case, that the jury must decide the case on all the evidence (see Carson v The Queen [2019] VSCA 317, [105] – [113]. C.f. R v BAH (2002) 5 VR 517; R v Lyne [2003] VSCA 118; R v Lewis [2002] VSCA 200).

    Jury Directions and Comments

  42. Following the commencement of the Jury Directions and Other Acts Amendment Act 2017 on 1 October 2017, the Criminal Procedure Act 2009 no longer specifies any jury directions that are necessary when a special hearing recording is played.
  43. In some cases, including if a recording is given to the jury in the jury room, it may be necessary to warn the jury when they are watching the recording for a second or subsequent time that they must also consider other evidence in the case or other considerations raised by the accused (R v Gately (2007) 232 CLR 208).
  44. Prior to the repeal of CPA 2009 s375 (which had specified directions that judges needed to give about special hearing recordings), the Court of Appeal had held that a judge must not give any directions which are inconsistent with section 375. It was therefore inappropriate to give general direction about the need for caution when assessing evidence given on a VARE or a special hearing (Clarke v R [2013] VSCA 206).
  45. CPA 2009 s375 was repealed on the basis that the mandatory directions were unnecessary because the special hearing procedure was commonplace, and to reduce the risk that a direction about the need to treat special hearing evidence the same way as other evidence would operate perversely by prompting jurors to treat special hearing evidence as unusual (Jury Directions and Other Acts Amendment Bill 2017 Explanatory Memorandum, clause 13).

    Previous Trial Evidence Procedure

  46. In a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence,[5] the evidence of a complainant who did not give evidence at a special hearing may be given through a recording of the complainant’s evidence at a previous trial (Criminal Procedure Act 2009 ss378, 379).
  47. The court may allow a complainant’s evidence to be given using a previous trial recording if it is in the interests of justice to do so, having regard to:
    1. whether the complainant's recorded evidence is complete, including cross-examination and re-examination;
    2. the effect of editing any inadmissible evidence from the recording;
    3. the availability or willingness of the complainant to give further evidence;
    4. whether the accused would be unfairly disadvantaged by the admission of the recording;
    5. any other matter that the court considers relevant.
  48. Following the commencement of the Jury Directions and Other Acts Amendment Act 2017 on 1 October 2017, the Criminal Procedure Act 2009 no longer specifies any jury directions that are necessary when a previous trial recording is used.
  49. For more information on a previous trial recording, see the Victorian Criminal Proceedings Manual .

    Notes

[1] See Alternative Arrangements for the definition of "sexual offences".

[2] The witness should be asked whether his or her statements on the recording are truthful, rather than being asked whether the recording is truthful. The later question may mean no more than that the tape accurately recorded his or her statements. This question must be asked in language able to be understood by the witness (R v LRG (2006) 16 VR 89).

[3] See Alternative Arrangements for the definition of a "sexual offence".

[4] Proceedings commence when the charge-sheet for the offence charged, or a related offence, is filed or signed, or when the Director of Public Prosecutions files a direct indictment (Criminal Procedure Act 2009 s5).

[5] See Alternative Arrangements for the definition of a “sexual offence”.

Last updated: 20 February 2020

In This Section

2.3.3.1 – Charge: Playing a VARE

2.3.3.2 – Charge: Replaying a VARE

2.3.3.3 – Charge: Special Hearing Evidence

See Also

2.3 – Other Procedures for Taking Evidence

2.3.1 – Alternative Arrangements

2.3.2 – Protected Witnesses

2.3.4 - Witness Support Dog