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Family violence and body worn cameras

Information about when police can use body worn cameras to record a statement from an alleged victim of family violence.

From 3 October 2018, police have been trialling the use of body worn cameras when they attend the scene of an alleged family violence incident. With permission from the victim, the footage from the camera may be used as evidence-in-chief. This was one of the recommendations in the 2016 Royal Commission into Family Violence to reduce the trauma for victims.

The trial was initially limited to police stationed at Epping, Ballarat, Ballarat North and Ballarat West police stations. Only 3 magistrates' courts were involved in hearing these matters:

  • Heidelberg
  • Ballarat
  • Melbourne (for contest hearings) through the bail and remand court.

The trial is monitored by an implementation working group for day-to-day issues. The working group is made up of representatives from the courts, Victoria police, VLA and DOJR. VLA staff should advise their manager of any issues that arise during this trial.

Extension of the trial

To gather more data for assessment, the trial is being extended and broadened across the state. The rollout is expected to take 18 months as police must have authorised training before they participate in the trial.

A schedule at the foot of this page shows the planned calendar for rollout. It is important to look at this schedule to find out when police are likely to start using body-worn cameras to take statements in this way. There is training on the Learning hub.

To link to this presentation see Body-worn cameras: Recorded statements(opens in a new window).

Use of the cameras as a tool for giving evidence

Police use the cameras to record a statement from the victim, which may be used as evidence in court. With permission from the victim, this recording, called 'digitally recorded evidence-in-chief' (DREC), will replace the traditional written statement. It will be played in court as the victim's evidence-in-chief. Ideally the recording should be made as soon as is practical after the violent events alleged.

The aim of this advance in technology is to reduce the trauma for victims, although the victim will still be required to attend court for contested hearings to adopt the statement, and to be available for cross examination.

Before recording a DREC statement, the victim must give informed consent.

When a DREC should not be taken

Police should not record a DREC statement where:

  • the victim is under 18 years old
  • the accused is under 18 years old
  • the victim appears to have a cognitive impairment
  • the victim is affected by alcohol or other drugs (take the DREC later, when they are no longer affected)
  • there are children present
  • the offender is present.

Police need to consider the physical and emotional state of the victim before making a decision to record a DREC. If the victim is too distressed or unwell police may consider taking a written statement instead.

If during the DREC recording, the victim discloses a sexual offence, police must stop recording and treat the matter as a sexual offence investigation.

Note: The age of the victim or accused is calculated at the time that the act of family violence is alleged to have happened.

To comply with the requirement for informed consent, the police must inform the complainant that:

  • the recorded statement may be used in evidence in a criminal proceeding, or a proceedings for a family violence intervention order, or another proceeding if ordered by a court or tribunal
  • the complainant may be required to give further evidence in the proceeding
  • they may refuse to making the recorded statement.

Note: Interestingly this is not to be recorded, but confirmed by the victim at the beginning of the DREC.

See s. 387G(3)—Criminal Procedure Act 2009 (Vic)(opens in a new window).

A victim who wants to withdraw consent for the use of a DREC must do so in writing. After receiving an application the police will have to assess:

  • the safety risks of withdrawing consent and also
  • what is in the best interests of the victim.

Police may still use the DREC if they form the belief that the victim is at greater risk if the DREC is withdrawn.

The DREC may be used in the absence of the victim at court, providing the victim gave informed consent at the time the evidence was collected.

What the prosecution must consider

When the prosecution are considering whether a complainant can give evidence in the form of a DREC the prosecution must take into account:

  • the wishes of the complainant
  • any evidence of intimidation by the accused towards the complainant
  • the purpose of the Family Violence Protection Act 2008, that is to:
    • maximise the safety for children and adults who have experienced family violence
    • prevent and reduce family violence to the greatest extent possible, and
    • promote the accountability of perpetrators of family violence for their actions.

See s. 387E—Criminal Procedure Act 2009 (Vic)(opens in a new window) and s. 1—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Where the DREC may be recorded

Police are instructed to take the formal statement as soon as practicable after the incident of family violence. Any location can be used if it provides a level of privacy and comfort for the victim, including:

  • the scene of the family violence
  • police station (or other police premises)
  • hospital.

Length of the recording

Instructions from the Chief Commissioner of Police (CCI) require police to activate their body worn cameras when they attend a family violence incident and throughout their management of the incident. Also indirect evidence from the scene is to be captured, such as injuries and property damage. For example, the affected family member may show police where the violence is alleged to have taken place while police are filming.

The CCI points out the distinction between using the cameras to record operational activities at the scene and the formal taking of the family member's statement, the DREC. Before taking the DREC, if the body worn camera is recording, the device must be stopped. During this pause, the police officer must give the family member information about the DREC process and get their informed consent before turning the camera back on to proceed.

Police are trained to make the recording as succinct as possible. They have been instructed to aim for 15 minutes, but the length will vary from one matter to the next. Early reports indicate that the average is currently 25 minutes.

How the DRECs will be used

The DRECs will be used as evidence-in-chief in proceedings for family violence offences, or related family violence intervention order applications. The DREC is not to be tendered into evidence.

The DREC process must not be used to collect evidence about historical or previous incidents of family violence. Police should warn the victim about the need to stay focused on the current incident being investigated.

Unless there is a pressing safety concern or a public interest reason, the DRC should be played in full during court proceedings where evidence-in-chief of the primary victim is required.

A DREC is not to be used to assist in preparation for another proceedings, unless the court makes an order.

Where interpreter is needed

A DREC may be used where an interpreter is assisting. Children, or other family members should not be used as interpreters.

Support person

It is okay for the victim to have a support person present while they are providing a DREC. Their presence should be noted on the recording. The support person cannot be someone who:

  • is under 18
  • was a witness to the violence.

The support person must not actively participate in the recording.

Kinds of family violence offences

The DREC can be used in matters involving contravention or safety notices or orders under the Family Violence Protection Act 2008, or offences where the conduct of the accused is family violence within the meaning of that Act. For example, an assault with a weapon where the victim is the domestic partner of the accused.

A DREC may also be used as part of an application for a family violence intervention order. However, the DREC will focus mostly on the most recent incident of alleged family violence and will not go into detail about historical offences or events. Therefore the victim may be required to provide further details to police at a later date to support their application. This will be in the form of a written statement.

See ss. 387C, 387D—Criminal Procedure Act 2009 (Vic)(opens in a new window) and ss. 37(2), 37A(2), 123(2), 123A(2), 125A(1)—Family Violence Protection Act 2008 (Vic)(opens in a new window).

Accessing a DREC

The victim

The victim may request an audio-only copy of the DREC.

See Page 6 'Viewing of digitally recorded evidence-in-chief' in Chief Commissioner's Instruction (CCI 03/18) Body Worn camera family violence trial. (link at the foot of this page.

The accused

An audio-only DREC will be served on the respondent as part of the preliminary brief. There will also be an opportunity for the accused to view the video DREC when they are interviewed by police. After the interview they can arrange a viewing by contacting the police informant. There is no obligation for the accused to view the DREC, but lawyers should encourage the accused to view this before going to court.

If the accused wants to view the DREC on the day of the hearing, the duty lawyer can assist with this. If the accused does not have a lawyer, they have to make an appointment at the adjoining police station. This information is included on the instructions they get when they receive their audio-only DREC.

If the accused is in police custody or a correctional facility, their lawyer will organise an opportunity to view the DREC. Lawyers will be permitted to take a laptop into police custody for the sole purpose of showing their client the DREC. The lawyer must give police 3 days notice before the visit.

A lawyer representing the accused

Once a lawyer is confirmed as the representative for an accused, they will get a copy of the DREC by email. The email will include a copy of a download-only link via evidence.com. The download link has an expiry date and time and the link will be inaccessible after this time.

Lawyers should request the DREC from the informant as part of their request for the brief of evidence. Remember to add the email list where the DREC is to be sent, when making the request.

Lawyers must not give a copy of the DREC to the accused.

See s. 387H—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Duty lawyer access

Duty lawyers who attend one of the trial courts should ask whether the matter is a DREC matter?

If a duty lawyer is representing an accused, a copy of the DREC will be sent to a nominated email address as soon as practicable before the court hearing. Access will be in the form of a download link via evidence.com.

At court, the duty lawyer will need a device that has a USB access point, such as a surface pro. Police prosecutors will have all relevant DREC available at court for each day. Police will transfer the relevant DREC onto the duty lawyer's device. It is important for the lawyer to remember to go to a private room to view the DREC.

If there is not enough time to view the DREC, the lawyer should consider asking for the matter to be adjourned.

Getting a transcript

Police must provide a transcribed copy of the DREC in circumstances where:

  • there is a risk that the accused will illegally supply or publish an audio DREC
  • the particular circumstances of the accused mean that they need a transcription (for example, if they are hearing impaired)
  • the matter is to be heard before the County or Supreme Courts
  • the court orders a transcription.

An accused person who is representing themselves may ask the court to order a transcription of the DREC to help them to prepare for a hearing. They can do this, even if they have a court-ordered VLA lawyer for the purpose of cross examination.

Storage, management and destruction of DRECs

Lawyers should store and manage DRECs in the same way that they manage existing briefs and client files. It must be retained for at least 7 years.

Offences

It is an offence to copy, publish or supply a copy of a recorded statement for any reason not permitted under s. 387 of the Act.

Maximum penalty

The maximum penalty is 2 years jail.

It is an offence for anyone other than the accused to knowingly possess a recorded statement.

The maximum penalty is 12 months jail.

See s. 387L—Criminal Procedure Act 2009 (Vic)(opens in a new window).

When lawyer can copy, publish or possess a DREC

Lawyers are permitted to copy and supply the DREC for the purposes of preparing for the proceedings that the recorded statement is to be used in evidence.

See s. 387L(4)(b)—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Admissibility requirements

For the DREC to be admissible as the complainant's evidence-in-chief, the recorded statement must be made with the complainant's informed consent as soon as practicable after the events occurred.

The complainant must attest to the truthfulness of the contents of the statement at the end of the recording.

A transcript must be served on the respondent. The accused or their lawyer must have a reasonable opportunity to view the recording.

The officer must have been properly trained.

See ss. 387F, 387G, 387H—Criminal Procedure Act 2009 (Vic)(opens in a new window).

More information

Legislation

Criminal Procedure Act 2009 (Vic)

  • Part 8.2, Div 7B—use of recorded evidence-in-chief of complainant in family violence proceedings
    • s. 387C—requirement for police to be trained in approved training course
    • s. 387F—admissibility of recorded evidence-in-chief
    • s. 387G—requirements for making recorded statement
    • s. 387H—service of a recorded statement
    • s. 387I—editing or otherwise altering recorded statement
    • s. 387J—when a court or tribunal may order a recorded statement to be produced
    • s. 387K—use of a recorded statement in family violence intervention order proceeding
    • s. 387L—offences in relation to recorded statements

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

Family Violence Protection Act 2008 (Vic)

  • s. 1—purpose of the Family Violence Protection Act
  • s. 37(2)—contravention of a family violence safety notice
  • s. 37A(2)—contravention of a notice intending to cause harm or fear for safety
  • s. 123(2)—contravention of a family violence intervention order
  • s. 123A(2)—contravention of an order intending to cause harm or fear for safety
  • s. 125A(1)—persistent contravention of notices or orders

See Family Violence Protection Act 2008 (Vic)(opens in a new window).

Reference

Federation of Community Legal Centres

See Federation of Community Legal Centres—Open letter about use of body-worn cameras(opens in a new window).

Body-worn cameras: Recorded statements

This workshop, delivered by VLA's Kate Bundrock, Program Manager, Advocacy and Natalie Heynes, Managing Lawyer, Ballarat, on 9 November 2018, provides an in depth look at the issue of body-worn cameras: how they are used by police and details about the pilot project that permits police to record statements for some adult victims in specific locations.

To link to materials from the presentation see Body-worn cameras: Recorded statements(opens in a new window).

VLA Practice resources

The Criminal Law Professional Support section of VLA's intranet has information about the pilot program. This includes an example of a mock interview, a guide to storing DREC files, and a guide about how to manage cases involving DREC.

See Practice resources—Criminal law resources—Family violence offences and digitally recorded evidence in chief (DREC)(opens in a new window).

Acknowledgement

Information on this page relies on the Chief Commissioner's instruction (below) and the VLA training session given by Kate Bundrock, Program Manager, Advocacy and Natalie Heynes, Managing lawyer at Ballarat.

Thanks also to VLA's Nirvana Adey, Senior Lawyer, Training and Education, Criminal Law Service Management, for review of this content.

Chief Commissioner's Instruction

See Chief Commissioner's Instruction—Digitally recorded evidence in chief family violence (CCI 04/20) (pdf, 257 KB)(opens in a new window).

This instruction deals with the procedures police are expected to follow during the body worn camera trial.

Note: This trial has been broadened and extended. The trial is being rolled out across Victoria. This is expected to take 18 months.

Victoria Police Manual

The manual sets out the procedures police must follow when using, storing and releasing body worn cameras and footage.

See Victoria Police Manual—Body-worn cameras (pdf, 323 KB)(opens in a new window).

Planned police training schedule

This training schedule shows the way the training and threfore rollout of the trial will proceed.

See Victoria Police—Training schedule for DREC phased trial across Victoria (pdf, 136 KB)(opens in a new window).

Updated