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Interviewing vulnerable witnesses

Vulnerable witness for the purpose of these sections below means a child of or under the age of 14 years or a person with a disability that adversely affects the person’s capacity to give a coherent account of their experiences and answer questions rationally [Summary Offences Act 1953 (SA) s 74EA(1)].

When a vulnerable witness is being interviewed as a witness to a serious offence against the person (such as murder, manslaughter, criminal neglect, a sexual offence, abduction, blackmail, unlawful threats to kill, and some other offences [see s 74EA(2)], police have several obligations (discussed below).

There is an obligation is to make an audio visual recording of the interview [s 74EB].

The interview also must be conducted by a prescribed interviewer [s 74EB] which includes:

  • people who have been authorised by the Commissioner of Police or the Attorney General to conduct these interviews; or
  • who have been authorised under another State, Territory or Commonwealth law to conduct interviews with vulnerable witnesses; or
  • who have completed an approved training course in conducting interviews with vulnerable witnesses

    [Summary Offences Regulations 2016 (SA) reg 20].

If the interviewer believes a witness may have complex communication needs, they must make the following arrangements as relevant [reg 23(2)]:

  • for the witness to be accompanied during the interview by a person who is a prescribed communication assistant
    • A prescribed communication assistant is a person who provides assistance to suspects or vulnerable witnesses while being interviewed and includes communication partner within the meaning of section 4 of the Evidence Act 1929 (SA) (see Prescribed communication partners below) and any other person approved for the purposes of the interview by the interviewer [reg 22(1)].
  • for the witness to use, or be provided with, a prescribed communication device for the purposes of the interview.

However the interview can still go ahead without a prescribed communications assistant or device if it is not reasonably practicable to have one there (for example one is not available); and the circumstances do not warrant postponing the interview [see regs 23(3) and 23(4)].

If the witness wants to be accompanied by a person who is a prescribed companion (such as a parent, spouse guardian, friend or carer [see reg 21], and the interviewer believes that the vulnerable witness should be provided with emotional or other support during the interview, they must make arrangements for the witness to be so accompanied during the interview [reg 23(5)]. However the interview can still go ahead with out a prescribed companion if it is not reasonably practicable to have one there; and the circumstances mean that it is not worth postponing the interview until those arrangements can be made [reg 23(6)].

For the interview to have met the prescribed requirements set out under section 74EB(c) of the Summary Offences Act 1953 (SA) a vulnerable witness should also understand that she or he must tell the truth. Additionally, evidence from the witness should be gathered, as far as practicable, without the use of leading questions (questions that suggest the answer) [Summary Offences Regulations 2016 (SA) reg 23(7)].

Where a vulnerable witness is being interviewed in relation to the investigation of any other offence (i.e. not just a serious offence against a person) evidence of the interview may be admissible in court provided, as above, an audio visual recording is made of the interview, it is conducted by a prescribed interviewer, and the manner in which the interview is conducted meets the prescribed requirements [Summary Offences Act 1953 (SA) s 74EC(1a)].

Prescribed communication partners

From 1 March 2020, a prescribed communication partner may include a person from the following classes:

  • Speech pathologists with Certified Practising Speech Pathologist membership of Speech Pathology Australia;
  • Registered occupational therapists;
  • Psychologists with general registration status with the Psychology Board of Australia; and
  • Developmental educators with full membership of Developmental Educators Australia Incorporated.

In addition to holding the relevant qualifications, the person must have a minimum of five years’ relevant experience working with people with complex communication needs and must have agreed in writing to comply with the relevant Code of Conduct. For more information, see the Rights and Law, Arrest and Court topic on the SA.GOV.AU website (opens new window) as well as:

Interviewing vulnerable witnesses  :  Last Revised: Mon Mar 2nd 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.