Assistance for Suspects, Victims, and Witnesses with Communication Needs
In dealing with criminal offences, there are some rights and processes for people who have a range of different communication needs. This includes witnesses, suspects and victims. Some of those rights are covered in the Law Handbook under various sections. The main sections on this are:
- Sexual offences where the victim has a cognitive impairment (for example an intellectual disability)
- Police questioning and Interviewing, including a subsection on Interviewing suspects with complex communication needs
- Interviewing vulnerable witnesses
- Pre-trial special hearings
- Preliminary examination
- Evidence of a close relative
- Criminal liability for neglect
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 [s 74EA].
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 Summary Offences Act 1953 (SA)], 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[reg 20 Summary Offences Regulations 2016 (SA)].
If the interviewer believes a witness may have complex communication needs, they must make the following arrangements as relevant:
- for the witness to be accompanied during the interview by a person who is a prescribed communication assistant;
- for the witness to use, or be provided with, a prescribed communication device for the purposes of the interview [reg 23(2)].
However the interview can still go ahead with out 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 mean that it is not
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) [reg 23(7) Summary Offences Regulations 2016 (SA)].
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)].
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.