Introduction
When police and child protection are conducting a joint investigation of a child at risk of physical and/or sexual harm, there are two options for the type of interview:
- Disclosure interview - where one police member and one child protection practitioner are present. One person conducts the interview and the other records the interview in writing. The notes are considered common and are made available to both police and child protection and can be used by either party in any subsequent legal action in either the Children's Court or criminal proceedings.
- Visual and audio recorded evidence (VARE). If the police determine that a criminal proceeding is likely, then in order to strengthen the probability of criminal prosecution, the police must record the child's formal statement of complaint. The VARE is the formal statement of the child's evidence for criminal prosecution. It is in the form of an audio or video recording of the child answering questions asked by a trained police member. The VARE interview occurs separately from the disclosure interview.
Legal requirements
VARE recordings are made pursuant to s. 367 of the Criminal Procedure Act 2009. This section stipulates that a witness may give recorded evidence-in-chief in a criminal proceeding that relates, wholly or partly, to a charge for a sexual offence or physical assault or injury. This type of evidence can only be given where the person is aged under 18 years or is a person with a cognitive impairment. This may be given in the form of an audio or audiovisual recording.
The structure of the VARE interview is specific and the child or young person must identify him or herself and attest to the truthfulness of the contents of the recording. The child or young person must be available for cross-examination and re-examination, if required. A police member who has received specialised training in this area conducts the VARE interview.
The provisions regarding the making, use, possession, editing, storage, access to and destruction of VARE recordings are set out in the Criminal Procedure Regulations 2009. These outline who may ask questions during the interview and what information is to be included on the recording, including:
- the date on which and place, where the recording is made
- the times the recording commences and concludes
- identification of all persons present during any part of the recording
- the times at which any break in questioning commences and concludes and the reason for the break.
The actual VARE tape cannot be released to the child protection practitioner unless required for court purposes and if so, a subpoena is required.
Procedure and arrangement for the VARE
The timing of the joint investigation between police and child protection should be based on the principle that the best interests of the child are paramount and appropriate planning is necessary to reflect this principle. This includes negotiating the timing of the VARE interview with due consideration to the safety and wellbeing of the child. This should take into account the age, development, and presenting needs of the child.
The VARE interview occurs at a police station that has the necessary equipment. It is the responsibility of the police member to obtain relevant consent from the parent (usually the non-offending parent) to interview the child for the purposes of the VARE.
It is particularly important that child protection practitioners are present to view the interview and take notes. This takes place from the monitoring room. Under the current legislation, child protection practitioners are not permitted to view the visual and audio recorded evidence after the interview is completed. A subpoena would be necessary to obtain a copy of the VARE evidence for the purpose of a protection application or related purpose. The legislation does not allow a child protection practitioner to ask any questions during the recording of a VARE evidence statement.
During the recording of the VARE, the child and one police member are situated in a room and another police member is in another room where the video taping occurs and observes the interview via the monitoring device. This police member maintains a transcript of the interview and assists the interviewing police member in relation to evidentiary issues. If an independent third party is required, this person usually sits in the room with the child.
The child protection practitioner sits in the monitoring room where the recording occurs and observes the interview as well. They are able to take notes and keep a written record of the interview. The child protection practitioner is not able to ask questions directly of the child during the VARE interview however can request or suggest that the police member ask certain questions, to obtain further information or clarify points relating to the disclosure of physical or sexual harm of the child. This can be done during breaks in the interview.
Any questions put to the child by the child protection practitioner must be at the conclusion of the formal interview and off camera.
In order to reduce the number of interviews that a child is subjected to, it is unlikely that the child protection practitioner will conduct a separate interview of the child in relation to the physical or sexual harm concerns. Therefore, the written record of the VARE interview is critical and will form the child protection practitioner's evidence for assessment, the case plan and possible legal intervention.
As the VARE relates only to the physical or sexual harm of the child, the child protection practitioner may continue to interview the child regarding protective issues, for example, exposure to family violence, exposure to parental substance use, suicidal ideation, self harming behaviours, routine of the family, relationships with parents, neglect issues. This will occur at the completion of the VARE interview and off-camera. These questions should be fully documented.
Use of the VARE in child protection
The information and any disclosure provided by the child during the VARE interview may be used by the child protection practitioner when articulating risk of harm to the child, the assessment and developing case plans. Furthermore, information provided during the VARE may form the evidence for a child being in need of protection, when initiating legal intervention and preparing the court report.
VARE recordings are made for the purposes of a criminal proceeding, not for protection proceedings in the family division. However, VARE recordings may be admitted, at the discretion of the presiding magistrate, pursuant to s. 215 of the CYFA which permits the court to 'inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary'.
If Victoria Police charges a person, a transcript of the tape will generally be made. Child protection may request a copy of the transcript for the purpose of the child protection investigation and any subsequent court proceedings. Where child protection establishes a need for such information, police may provide a copy of any transcript made for criminal proceedings.
Considerations for good practice
A VARE interview can be intimidating and overwhelming for a child. Whilst the police will endeavour to support the child, establish rapport and follow the interview process, their primary role is to obtain evidentiary information from the child for the purposes of criminal proceedings. The practitioner can have a role during the initial interview (prior to the VARE) to ensure that appropriate support is provided to the child and that the interview is conducted with consideration of the best interests of the child.