In proceedings for a domestic violence offence, where a victim of a domestic violence offence is 16 years or older and not cognitively impaired, a prescribed recording (either audio or audio visual) may be admitted into evidence under section 13BB of the Evidence Act 1929 (SA). Similar requirements generally apply as those under section 13BA of the Evidence Act 1929 (SA) (concerning evidence of vulnerable witnesses through audio visual record), namely that [s 13BB(2)(a)]:

  • the court is satisfied of the complainant’s capacity to give sworn or unsworn evidence at the time of the recording,
  • the defendant has been given a reasonable opportunity to listen to or view the recording, and
  • the complainant is available during the trial, if required, for further examination, cross-examination or re-examination

However, even if these requirements are not satisfied, the Court may admit the evidence if satisfied that the interests of justice require it [s 13BB(2)(b)].

The complainant can only be further examined, cross-examined or re-examined if there is new information that has come to light since the recording was made, the complainant gives additional evidence at the trial apart from the recording or it is otherwise in the interests of justice to allow further examination, cross-examination or re-examination [s 13BB(6)]. The prosecution may also cross-examine the complainant on some matters with the permission of the Court [s 13BB(5)].

If the Court admits evidence in the form of a recording, the judge must warn the jury not to draw from the admission of evidence in the form of the recording any inference adverse to the defendant, and not to allow the admission of evidence in that form to influence the weight to be given to the evidence [s 13BB(8)].

domestic violence offence is any offence involving domestic abuse within the meaning of the Intervention Orders (Prevention of Abuse) Act 2011 (SA).

prescribed recording is a recording made by a police officer when a victim is questioned by a police officer in connection with the investigation of a domestic violence offence [s 13BB(10]. The recording must have occurred as soon as practicable after the commission of the offence being investigated, the recording must be made with the informed consent of the victim and within the recording the victim must state their age, that what they say in the recording is the truth, and anything else required by the regulations or rules of court. Informed consent is taken to be given if the police officer tells the complainant that they are recording the complainant and that the recording may be used in court and the complainant indicates ( by words or conduct) that they consent to the making of the recording [see Evidence Regulations 2007 (SA) reg 3AAA(6)]. A lack of objection to a recording may constitute consent [reg 7].

If a party seeks to rely upon a recorded interview pursuant to section 13BB of the Evidence Act 1929 (SA), they must disclose and serve an electronic copy on all other parties not less than 7 days before the pre-trial conference. In addition an electronic copy of the transcript of the recording must be disclosed and served not less than 14 days before the trial [Magistrates Court Criminal Rules 1992 r 26.16].

If a language other than English is used in the recording, the statements must be translated into English (either in the recording or in a transcript later) and any transcript provided to the defendant or the court together with the recording [Evidence Regulations 2007 (SA) reg 3AAA]. An interpreter’s affidavit is required as to the accuracy of the translation and the Court may require further verification.

The recording may be treated as sensitive and access may be restricted under the Evidence Act. Anyone who has possession of, or access to, recorded evidence must not allow access by another person except for the purposes of the proceedings, by a public official for the purposes of official functions or as may be authorised by the police officer who made the application for the intervention order or its variation. It is an offence to refuse or fail to comply with these requirements [reg 3AAA(5)].